R V Murdoch the Falconio Case A Study in Identification and Circumstantial Evidence. [1 ed.] 9780409342208, 0409342203

Table of contents :
Full Title
Copyright
Publisher’s Note
Preface
Acknowledgement
Table of Contents
CHAPTER 1 THE BACKGROUND TO THE TRIAL
CHAPTER 2 COUNSEL FOR THE DEFENCE ADDRESSES THE JURY
CHAPTER 3 THE FINAL ADDRESS BY THE PROSECUTOR
CHAPTER 4 THE TRIAL JUDGE’S SUMMING UP TO THE JURY
CHAPTER 5 THE APPEALS
Appendix TRIAL EXHIBIT PHOTOGRAPHS
Index

Citation preview

R v Murdoch The Falconio Case A Study in Identification and Circumstantial Evidence

Hon. Dean Mildren AM RFD QC BA, LLB (University of Adelaide), LLD (Hon) (Charles Darwin University) A former Judge of the Supreme Court of the Northern Territory

LexisNexis Butterworths Australia

2015

AUSTRALIA

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LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects:

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Mildren, Dean. R v Murdoch: The Falconio Case: A Study in Identification and Circumstantial Evidence. First edition. 9780409342192 (pbk). 9780409342208 (ebk). Includes index. Murdoch, Bradley. Falconio, Peter. Criminal investigation — Northern Territory. Evidence, Criminal — Northern Territory. Evidence, Circumstantial — Northern Territory. 363.25099429.

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PUBLISHER’S NOTE TRANSCRIPT The transcript of the trial of Regina v Bradley John Murdoch before the Supreme Court of Northern Territory has been reproduced with the kind permission of the Department of the Attorney-General and Justice Northern Territory. Typographical errors in the transcript have been addressed in three ways by the Publisher. First, if a word (or part of a word) is missing this has been inserted in square brackets; for example: ‘he said it was [a] good idea’ / ‘he said it was essential[ly] good’ Second, if a word is misspelled or the word is incorrect, the original word has been retained and then the correct word has been inserted in square brackets; for example: ‘he said you’ve [you’re] right’ Third, if a sentence is unclear the word ‘sic’ has been inserted in square brackets; for example: ‘he was backing back [sic]’ PHOTOGRAPHS The photographs included in the Appendix were exhibits at the trial of Regina v Bradley John Murdoch and have been reproduced with the kind permission of the Department of the Attorney-General and Justice Northern Territory.

PREFACE This book is the second in a series of books based on the concept of the Notable British Trials series published by William Hodge & Co, London, between 1905 and 1959, the main difference being that here we are dealing with sensational Australian criminal trials. The purpose of this book is not to titillate or to entertain, but to inform the general public and to educate young, or even old, barristers and lawyers who might be contemplating for the first time entering into the world of criminal trials in general and jury trials in particular, by focusing on a particular trial as an illustration of certain specific aspects of a real criminal trial, in this case, identification and circumstantial evidence. The method I have adopted is to reproduce almost the entirety of counsels’ final addresses and the trial judge’s summing up to the jury, which I have annotated with footnotes and commentaries to explain the background to the significant issues and the purpose and strategy behind the evidence. The trial of Bradley John Murdoch for the murder of Peter Falconio and the unlawful deprivation of liberty and assault of Joanne Lees was a case which heavily relied on both forms of evidence. The trial is, I think, properly called ‘sensational’ for a number of reasons. First, the trial attracted a great deal of media interest, both in Australia and in the United Kingdom. The trial judge, Brian Ross Martin CJ, went to some lengths to ensure that the media had access to the courtroom, by utilising CCTV footage played in another room for those journalists unable to find a seat in the courtroom. On a number of occasions during the trial, the judge was forced to deal with complaints about some of the media stories which had been published and on other occasions had to consider applications to make non-publishing orders relating to certain evidence or applications before the court, as well as applications by the media to rescind non-publishing orders already made. With only a couple of exceptions, the media went about its task appropriately and there was a good deal of rapport between the court and the media. Second, the trial was about two English backpackers who had been attacked on a lonely road at night in the middle of the Australian outback. It was the

sort of horror story which might have been the subject of a thriller or a film. Indeed, there was such a film, Wolf Creek (2005), which was due to be shown in Darwin when the trial was to be held. An application was made to ban the film from being shown publicly in Darwin until after the trial was over, but instead the judge told the jury not to see it. There was, in fact, little resemblance between the film and the Crown case, but the judge rightfully decided to be cautious. Third, this was a case where there was no body found and no eyewitness to the murder or even to the fact that Falconio was dead. Moreover, there were two witnesses who claimed to have seen Falconio alive a week after his alleged shooting. No weapon had been found, nor had the police located a spent bullet cartridge or the projectile. Fourth, it had taken the police over two years to bring charges against the accused. The police had no confession and its case against the accused was largely circumstantial. To make matters worse, there was a suspicion aired by some sections of the media that either Falconio’s death had been faked to claim an insurance payout or that the real culprit was Lees. The trial judge needed to make sure that the trial was fair both to the prosecution and to the defence, and that it did not descend into a Lindy Chamberlain-style travesty. Fifth, the accused had just been acquitted of two counts of rape, two counts of false imprisonment, two counts of indecent assault and one count of common assault in the South Australian District Court, a matter about which there had already been a considerable amount of publicity. The alleged victims in that case were the de facto wife and 12-year-old daughter of Fred Everitt, who was one of Murdoch’s associates in Sedan, a small town on the Murray River in South Australia where a drug running enterprise was based. Both had claimed to have been held by Murdoch at gun point and bound by black cable-tie handcuffs and chains. This was said to have occurred in August 2002. Murdoch was arrested by South Australian Police on 28 August 2002 at Port Augusta. Some of the evidence to be used in the subsequent murder trial had come from evidence found in respect of the investigation for the rape trial, and it would be necessary to prove that that evidence had not become contaminated. Part of the evidence involved revealing that Murdoch had declined to make a statement when spoken to by the Northern Territory Police while in remand at Yatala Prison in Adelaide. Added to that was the

fact that the Crown intended to show that Murdoch was a drug runner carrying marijuana from the township of Sedan to Broome in Western Australia, via Alice Springs and the Tanami Desert Track through Yuendumu in Central Australia and Fitzroy Crossing in Western Australia, and that he had always carried a pistol on his regular drug-running trips. These factors gave rise to a serious risk of a mistrial if prejudicial evidence was wrongly admitted into evidence, and in fact there was an unsuccessful application in the middle of the trial to discharge the jury.1 Finally, some of the witnesses to be called to give evidence for the Crown were former associates of Murdoch in the drug-running enterprise — witnesses whose evidence was likely to be very helpful to the prosecution, but subject to attack on the ground that the witnesses had their own interests to serve in helping to secure a conviction. In order to understand how a superior court criminal trial before a judge and jury is run, it is necessary to have a good grasp of the methodology and fundamental principles upon which the system of justice works. To begin with the obvious, the law is that every person charged with a crime is presumed innocent until proven guilty, unlike the European system where the accused must prove his or her innocence. The corollary of this is that, except in special circumstances where particular defences such as mental impairment are raised, the burden of proof rests upon the Crown throughout the whole of the trial. Further, the standard of proof required is said to be proof beyond reasonable doubt, an expression which is, generally speaking, incapable of any further explanation by the trial judge. Attempts in the past by trial judges to explain its meaning have usually resulted in a successful appeal and an order for a retrial. Juries are usually told, if they enquire as to what these words mean, that they are ordinary English words which mean what the jury thinks they mean, but whatever else they may mean, it is a higher standard of proof than a satisfaction that the accused is more probably guilty than not. Juries may also be told, if counsel for the accused had suggested this, that a doubt which is fantastic or completely unreal is not a reasonable doubt.2 The rationale for this approach is based on a number of fundamental concepts. The first concept is that the prosecution has all of the resources of the State to gather evidence. The defence, on the other hand, has usually only

a limited ability to gather evidence. There are two reasons for this. First, when a crime has been committed it is the State, through the police, which investigates the circumstances of the crime at a time when the evidence is fresh. At this stage, the accused, who is presumed innocent, may not even be aware that a crime has been committed and, further, may not think for one moment that he or she is a suspect and should be out gathering evidence. By the time charges are laid, most if not all of the evidence has already been gathered by the police. If further enquiries need to be made, the trail is by then already fairly cold. Second, the defendant is often indigent, or at least incapable of raising the sort of money available to the State to gather the kind of evidence which the State can. These features of the system are very important in all criminal trials, but the trial of Murdoch illustrates just how important these fundamental principles are. At the trial, the Crown led evidence of the extensive enquiries which the police had made in an effort to establish whether or not Falconio was still alive and to show that no one other than Murdoch could have killed Falconio and abducted Lees. All aspects of the enquiry were recorded on an electronic database known as ‘PROMIS’, under the supervision of Snr Sgt Megan Rowe, who was to tell the jury about the thousands of phone calls that were received from the general public, the tens of thousands of pages of information gathered, how this was all researched and how and why false leads were eliminated. Another explanation for these principles is the concept that it is better that some guilty people are found not guilty than a single innocent person be convicted. Consistent with this criminal justice theory, jury verdicts must ordinarily be unanimous, although there are now some circumstances where the law allows a majority verdict of 10 or more, but, for constitutional reasons, only in relation to state or territory offences, and not Commonwealth offences.3 Because the power of the State vastly outweighs the resources of the defence, the prosecution authorities are expected, and required, to act indifferently in the evidence-gathering and evidence-calling process. Therefore, every piece of evidence which is relevant to the investigation must be gathered and properly preserved irrespective of whether the evidence assists the prosecution or the defence. Neither the police nor the prosecution may hide reliable evidence which would be of assistance to the accused, and if

it is later found that this has occurred it is likely that any conviction will be quashed by a court of criminal appeal.4 If the defence finds a witness of whom the police have no knowledge, the defence may call upon the police or the prosecuting authorities to interview the witness and provide the defence with that witness’ statement. Although the courts have no control over which witnesses the prosecution will call, and only in extremely rare cases, if at all, will the court itself call a witness, the duty of the prosecution is to call every witness of whom it has knowledge, whether the witness assists the prosecution or not, unless the prosecution is satisfied that the witness is not a witness of truth or there is some other good reason for not doing so. The prosecution is expected to be a minister of justice and not to misuse its powers to gain any improper advantage.5 The failure of the police or the prosecution to properly investigate a crime or to abide by these rules in some other serious way will inevitably result in the trial judge asking the jury to draw an adverse inference against the prosecution case. Furthermore, the prosecution must make full discovery of all of the evidence to the accused.6 In practice, this means providing copies of all of the statements of the witnesses and of all of the exhibits capable of being photocopied to the accused. Evidence which cannot be copied may be inspected by the defence before trial. A failure by the prosecution to cooperate with the defence in making full disclosure could result in the trial judge staying the trial until disclosure has been made, or could, on appeal, result in the conviction being quashed if the failure to disclose resulted in a miscarriage of justice. When I was a young barrister being briefed as junior counsel in my first jury trial, I was very surprised by the extent of the discovery which the prosecution was required to make. I was told by my leader that we were going to the prosecutor’s chambers to look at the exhibits. I had not anticipated this. Although discovery is routine in civil cases, my limited experience in criminal matters had been cases to be tried before magistrates. In those cases, the police prosecutors had revealed nothing of the case against my clients and had even refused to give me a copy of the witness statements. But that was a long time ago. Another aspect of the discovery process is the requirement in the Northern Territory for a magistrate to conduct a committal proceeding. At the committal proceeding, the prosecution must call all of the evidence which it

intends to rely upon at the trial, although it is often the case that only the most important witnesses will be called and that the statements of the other witnesses will be tendered. At the end of the committal, the function of the presiding magistrate is to determine whether the prosecutor has established a case to answer. If there is no case, the magistrate must not commit for trial; otherwise, he or she must either commit for trial or, if the accused has indicated his or her guilt, for sentence. This procedure replaced the old system of grand juries, which had a similar function until it was abolished in Australia in the 19th century, although the grand jury system is still employed in the United States. However, the committal now has a more important purpose, namely, to enable the defence to test the evidence by crossexamining the witnesses.7 Although there are now some restrictions on this right, in serious cases the defence is usually allowed to cross-examine most of the witnesses. There are a number of good reasons why this process is still employed. There may be questions about whether or not the charge as framed is properly laid, or whether or not certain documents for which privilege is claimed are, in fact, privileged. The magistrate’s opinion on these issues may be of great assistance to the administration of justice. If he or she gets it wrong, in a proper case, declaratory relief may be available in a superior court.8 The magistrate may decide there is no case to answer and discharge the defendant. Although this does not prevent the prosecution from proceeding to trial by filing what is called an ex officio indictment, it may, in a rare case, provide the basis for an application in the trial court for a stay of proceedings if the case cannot be made out, and this is so whether or not the magistrate has found a case to answer. In addition, it often results in the parties negotiating a plea to a lesser charge as a proper means of disposing of the case, particularly if an important witness has not come up to proof of the facts necessary to establish a more serious charge. It may also provide a basis for testing a witness during cross-examination at the trial if there is a significant departure of the witness’ evidence given at the committal hearing. Trials can be won or lost by the way in which the committal has been handled. Once the committal is over and the accused has been committed for trial, the next step is for a formal indictment9 to be laid in the court of trial. The

indictment may not always reflect the precise charges upon which the accused was committed, but it would be very unusual for the charges to be more serious. Once the indictment has been laid, the court of trial has complete control over the proceedings. The practise at the time of this trial was, and still is, for the trial judge to conduct one or more pre-trial conferences or hearings to ensure the smooth flow of the trial itself, to confirm the trial dates and also to make rulings relating to the admissibility of contentious evidence. The judge will also enquire into whether or not any uncontentious facts can be placed before the jury in the form of written admissions, which will save time and the expense and trouble of having to call witnesses to prove these matters. Where a fresh witness is to be called to give evidence, the trial judge may, but is not always obliged, to conduct a ‘Basha enquiry’,10 even after the jury has been empanelled. The purpose of a Basha enquiry is to enable the defence to cross-examine the witness in the absence of the jury as part of the discovery process. When the first day of the trial arrives, counsel announce their appearances before the jury panel, the accused will be arraigned11 and the process of jury selection then takes place. Assuming there is no challenge to the array,12 numbered balls are placed in a barrel, the barrel is rolled and a number is retrieved which will correspond to a name on the jury list. The name and occupation of the juror is then called out and the potential juror will walk towards the judge’s associate to be sworn in as a member of the jury. Each side has a number of challenges, called peremptory challenges, which can be employed without having to provide a reason. In murder trials, each side has 12 such challenges and the Crown may also stand aside a potential juror without having to give any reason.13 There may also be an unlimited number of challenges for cause, that is, that there is a good cause why the particular individual should not, or cannot lawfully, be sworn in as a juror, but such challenges in practise are relatively rare. Usually, jury selection is over in less than an hour, unlike the practise in the United States where jury selection is an art it itself and may take several days. Once the jury has been selected, the trial judge will make a short introductory speech to the jury, dealing with such matters as may be necessary to inform them of what is expected of them, the respective roles of the judge and counsel, matters relating to the burden and standard of proof

and the presumption of innocence and matters such as sitting times and the need to try the case on the evidence. The trial judge also gives a warning to the jury not to try to gather evidence themselves over the Internet etc. Once this is over, the Crown prosecutor will make an opening address to the jury in the course of which the jury will be told what the Crown case is about and how the Crown intends to prove its case. The opening address must be delivered without histrionics or any significant emotion, and must not allege matters of significance which the prosecutor knows he or she cannot prove. A significant failure by the prosecutor to comply with this practice may result in the jury being discharged and, depending on the seriousness of the breach, could even result in the prosecutor having to deal with disciplinary charges against himself or herself. At the time of this trial, it was not the practise to invite counsel for the accused to make an opening address at this stage, although the practise has since changed. Once the opening addresses are concluded, the prosecution calls each of its witnesses until all of the evidence which the prosecution intends to call has been given. At this stage, counsel for the accused may make a submission of no case to answer. If the submission is upheld by the trial judge, the jury will be directed to enter a verdict of not guilty. If the submission fails, or if no submission is made, counsel for the accused will be asked whether the accused intends to give or call any evidence in his or her defence. This is sometimes a pivotal moment for counsel for the accused. Should they call their client or not? This is not always an easy decision to make, because the defendant may not be an impressive witness in their own cause. Sometimes, the decision is made easy because the accused insists on giving evidence, but usually an accused will be guided by the barrister’s advice. If the case against the accused at this stage is strong, counsel will often advise the accused to give evidence, because otherwise there is little chance of an acquittal. If the accused does give evidence, the next question is whether any other witnesses will be called to give evidence about the facts of the case. At the time of this trial, the calling of any additional witnesses, except witnesses going to the accused’s previous good character, meant that counsel for the defence was required to address the jury first, after all of the evidence had been completed. That is not the case today. The law has since been changed, so that the

prosecution must always address the jury first, or not at all. The right of defence counsel to address last, known as ‘the right of reply’, has always been considered to be of great value because it enables defence counsel to answer the strong points made against the accused. If the defence is called upon first, counsel must anticipate what might be said by the prosecutor against his or her client, and there is always the chance that a strong point will be overlooked or not properly debated. Finally, we arrive at the summing up by the trial judge, which will be a focus of attention in this work. This will have been carefully prepared by the trial judge, because if he or she misdirects the jury this will afford the defendant a ground of appeal to the Court of Criminal Appeal, which might set aside a verdict of guilty and order a retrial. While there is no preset formula, there are some minimum requirements: The trial judge must adequately instruct the jury on the burden and standard of proof. The trial judge must explain so much of the law as is necessary for the jury to properly arrive at its verdict or verdicts. The trial judge will make clear to the jury that questions of fact are for the jury to decide, but the jury must apply the facts to the law as has been explained to them. It will usually be necessary for the trial judge to give the jury specific directions on what use is to be made of certain evidence. In a murder trial, the judge will often need to instruct the jury on such matters as whether or not a motive has been proved; how to utilise a finding that a witness or the accused has told lies and what amounts to a lie; what use is to be made of the accused’s evidence and what might flow from a rejection of the accused’s evidence on a material matter; how inferences of fact may be drawn from the evidence to prove other facts; what is circumstantial evidence and how it may be used to arrive at factual conclusions; the weight to be given to identification evidence or recognition evidence; how to evaluate scientific or other expert evidence; and a number of other directions which may be necessary to ensure a fair trial. The trial judge will be expected to remind the jury of the most significant evidence in the trial, how this evidence is relevant to the issues in the case

and what counsel for each side has said in their closing speeches about that evidence. The trial judge may also add some comments of his or her own designed to draw attention to the weight which might be given to that evidence in all the circumstances. The trial judge must ensure that both the prosecution and the defence cases are properly put and explained to the jury in a balanced way. Except where a submission has been made which has no grounds to support it, or where the evidence is not in contention, the trial judge should not transgress into the evidence in such a way as to intrude into the jury’s function as the triers of fact. Nevertheless, weaknesses in the evidence should be pointed out for the jury’s consideration regardless of whether the weakness assists the prosecution or the defence case. At the end of the summing up, and perhaps during adjournments if the summing up takes longer than an hour, the trial judge will usually ask counsel if there are any exceptions to the summing up which either counsel wishes to raise in the absence of the jury. When the summing up is completed the trial judge will explain to the jury how they may go about asking questions or seeking further clarification of any matter which is troubling them, remind the jury that they must be unanimous, and then ask the jury to retire to consider its verdict. A note will then be made of the time at which the jury retired, in case it is necessary to consider a majority verdict after six hours of deliberation has elapsed without a result. As a general rule, juries are not advised about the capacity of the court to take a majority verdict until the judge decides that it is time for such a verdict to be accepted (if there is one), which may be quite some time after the six hours have elapsed. It is now necessary to briefly deal with the legal requirements concerning the admissibility and weight to be given to identification evidence. As a general rule, to be admissible at all evidence must be relevant. Even if it is relevant, the trial judge has a discretion to reject evidence if, for example, the prejudicial effect of the evidence outweighs its probative value. It is this discretionary power of exclusion which is most often called into play when objection is taken. The expression ‘identification evidence’ is primarily concerned with evidence given by a witness that the accused (or some other person) was the person whom the witness saw commit the alleged crime, or

that the accused (or some other person) was seen by the witness at a time and place which provides the prosecution or the defence with a basis for asserting, by reference to other facts in the case, that the accused is either guilty or not guilty, as the case may be. In all such cases, the witness’ identification of the individual in question arises in circumstances where the individual in question is not previously known to them. In such cases, the experience of the common law courts is that, for various reasons, witnesses can be honest but mistaken, with the result that an innocent person may be convicted. In one famous 19th century case in England, the accused, having been identified by a large number of witnesses, was convicted but it subsequently transpired that the witnesses were wrong and the accused was an innocent man. A subsequent enquiry into the case, The Report of the Committee of Enquiry Into the Case of Mr Adolf Beck, concluded that ‘evidence as to the identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe insufficient basis for the verdict of a jury’.14 For this reason, the case law has developed principles which guide courts when deciding whether or not to exclude evidence of this type. Police forces also use photographs of suspects, which are shown to witnesses, as a means of investigating the likely identification of a perpetrator and also use them as evidence in court. But the use of photographs brings problems of its own, referred to as ‘the displacement effect’ and ‘the rogue’s gallery effect’. The first of these effects arises when the witness’ memory of the person concerned may have been displaced by his or her memory of the photograph of the person. The second effect is the problem that the jury may infer from the nature of the photograph that the accused has a prior criminal history and is therefore the kind of person who would commit the offence in question. This form of propensity evidence is highly prejudicial and would generally be rejected.15 Consequently, the modern practise is for police to record first, in as much detail as possible and as soon as possible after the event, the witness’ description of the perpetrator. This would include hair colouring and style; facial features generally, including the shape of the head, mouth, nose, eyebrows, ears, cheekbones and jaw; racial origin; skin colour; eye colour;

height and build; approximate weight; any distinguishing features such as facial hair, tattoos, birthmarks or scars; a description of the person’s gait, stance, etc; whether the person is right-handed or left-handed; and the clothes worn at the time. If the person was carrying anything, such as a weapon, a full description of this would also be taken down. The recording of this may be in the form of notes, a statement from the witness, or electronic record. The next step would depend on whether or not the police already have a suspect. If there is no suspect, the police are still in the investigation phase of the enquiry. The police may engage an artist to sit with the witness to draw a likeness from the description, or may use what is called a ‘comfit’, which is an electronic program designed to piece the description together to form a likeness and to record in each case the witness’ comments about the accuracy of the likeness produced. Another technique which is used is to show the witness a large number of police photographs of people who are known to the police, to see if the witness recognises the perpetrator. The police may then release the comfit or the drawing to the media to see if any member of the public is able to recognise the person. Once the police have a suspect in mind, they may first invite the suspect to take part in an identification parade. This involves placing the suspect in a line-up of usually a dozen people with similar characteristics and inviting the witness to see if the perpetrator is in the line-up. This has to be carefully handled. The witness must not be told that the suspect is in the line-up and must not be given any clues as to who the suspect might be. If the witness selects someone in the line-up, the witness will be asked how sure he or she is that this is the person concerned. The whole process is recorded on video-tape. If the suspect declines to participate in a line-up, the police may instead use a photo board. Usually between 10 and 12 photographs of similar faces including that of the suspect, will be shown to the witness, who will be invited to say whether he or she recognises anyone in the photo board. This will also have to be carefully handled, with no suggestion that the suspect’s photograph is included in the photo board and no hints given. Once again, the whole process is recorded on video-tape and the witness will be asked how sure he or she is in making the identification. Sometimes, for reasons which are not explained, the police do not use a line-up and instead use a photo board. It has been held by the High Court of Australia that this does

not necessarily result in a finding that the identification evidence should have been excluded, even if the failure to conduct a line-up was in breach of police guidelines.16 However, evidence of a line-up or photo board identification may still be excluded in the trial judge’s discretion for other reasons, such as that the persons used in the line-up or in the photographs bore no resemblance to the accused, or that the photographs used were clearly mugshots taken in police custody. Another problem is ‘dock identification’. This is when a witness is asked in court, at the time of trial, if he or she is able to see the person concerned in the courtroom. While there is no hard and fast rule that a dock identification will never be admitted into evidence, it is clear that where a witness is asked to identify the accused as the perpetrator for the first time in these circumstances, there is a strong likelihood that the evidence will be excluded, unless there has been a prior identification by the witness about which evidence has already been admitted, or unless the person concerned is giving ‘recognition evidence’, where the person in question is someone they know and have known previously, often for a long time. In such a case, the occasion for the police to conduct photo boards, line-ups or the like often does not arise. However, both in the case of identification evidence and in some cases in relation to recognition evidence, it is necessary for the trial judge to give to the jury a stern warning about the dangers of acting upon that evidence unless it is supported by other evidence in the case. The warning must include an instruction by the judge as to the factors which may affect the reliability of the identification evidence in the circumstances of the particular case and must isolate and identify, for the benefit of the jury, any matter which may reasonably be regarded as undermining the reliability of the identification evidence.17 Often, this will include such matters as the brevity of the occasion on which the witness saw the person concerned, the fact that the observation was made in less than ideal conditions (for example, in poor lighting or not at a close distance) or that the description first given was poor and did not fit the accused in some material way. The circumstances will vary greatly from case to case. The failure to give such a warning, or the failure to give an adequate warning when one is required, may, but not necessarily will, lead to an appellate court quashing the conviction and ordering a retrial. In Festa v

R,18 for example, the High Court held that the judge’s directions on identification were inadequate, but because the case against the appellant was overwhelming there was no miscarriage of justice and so the appeal was dismissed. In the Murdoch case the Crown had CCTV footage of a person fitting the description of the accused and his vehicle, filling up at a truck stop in Alice Springs at a time which the Crown contended showed that Murdoch could have committed the killing and returned to Broome within the time frames established by the evidence. This evidence was of importance for this as well as other reasons, but was not crucial to the Crown case because it was, in reality, only a piece of circumstantial evidence. A number of witnesses who knew the accused had been invited to watch the footage and gave evidence to the effect that they recognised the accused and his vehicle. In addition, the Crown called an expert witness, Dr Sutisno, who had a BSc in anatomy, an Honours degree in Forensic Anatomy and had completed a PhD in facial identification from photographs. The original video was of poor quality. She not only compared stills taken from the video footage with a good quality image of the defendant’s face, but she also purported to map the whole body. Her conclusion was that the person in the video was the same person as the accused. Objection to the admissibility of Sutisno’s evidence was rejected by the trial judge. We will come to see how Martin CJ directed the jury on this evidence. Clearly, the evidence of Sutisno was a form of identification evidence, while the evidence of the accused’s friends and acquaintances was perhaps a form of recognition evidence. We will also come to see why the Court of Criminal Appeal held that Martin CJ was wrong to have admitted the evidence of body mapping but not wrong to have admitted Sutisno’s evidence as to facial mapping, and that Sutisno should not have been permitted to give evidence that the person was the same person as Murdoch, but that she should have been able to tell the jury about similarities between the two. The other kind of evidence which needs to be discussed is circumstantial evidence. This is evidence of a number of facts, none of which when viewed alone would implicate the accused, but the combination of which could lead to an inference of guilt. It is to be contrasted with direct evidence, such as, for example, the evidence of an eye witness to a crime. Circumstantial evidence

as a means of proof is as old as courts of law, if not older. There are two kinds of circumstantial evidence, traditionally explained by reference to a metaphor created by Wigmore:19 the ‘links in the chain’ type and the ‘strands in the cable’ type. In the former, an inference is capable of being drawn from a series of facts, where one or more of those facts are what are called in the cases ‘intermediate facts’. An intermediate fact is a fact which is either proved or inferred from other facts and which is an essential step in the process of reasoning towards a conclusion of guilt. It follows that if the intermediate fact is not proven, the whole process of reasoning would be unsound. For example, let us suppose that a man was found dead in his bedroom. When the body was examined by a pathologist, it was discovered that he had been shot in the heart, which caused his death. The time of death was estimated to be between 12 am and 2 am and could not have been earlier or later than these times. A projectile was recovered in the room which was consistent with being fired from a .38 pistol. A .38 pistol was later found in a nearby drain. Tests carried out showed that the rifling marks on the projectile proved that the projectile was fired from this gun. The accused was seen by a witness, leaving the deceased’s house at 1.30 am. The accused had a proven motive for wanting to kill the deceased but so did a number of other people. From these facts, the jury is invited to infer that the accused killed the deceased. The accused denied killing the deceased and gave evidence, supported by his wife, that at 11.00 pm he was at home in bed. The crucial intermediate fact is whether or not the witness, who claimed to have seen the accused leave the deceased’s house at 1.30 am, is to be believed, because, if not, the whole case against the accused falls to the ground. As to ‘strands in the cable’ type of reasoning, the jury is asked to infer from all of the facts, none of which when viewed alone are usually intermediate facts, that the accused is guilty. Thus, in the case of a burglary, the evidence might show that on a particular night a house was broken into, certain property was stolen, and the following morning the police searched the accused’s home and found not only that property but implements for carrying out a burglary, one of which had minute traces of glass upon it consistent with it having been used to break into a house and that this implement had the accused’s fingerprints on it. Prior to 1984 there was a debate about whether in each case, each fact had

to be proved beyond reasonable doubt before the ultimate conclusion of guilt could be reached. In Chamberlain v R (No 2)20 the High Court considered this very question. The result of their Honours’ judgments led some state courts to conclude that every fact had to be proved beyond reasonable doubt and that it was important for the trial judge to so instruct the jury. The matter was finally clarified by the High Court’s decision in Shepherd v R.21 The result is that, today, intermediate facts must be proved beyond reasonable doubt but there is no requirement that every other fact must be so proved. In many cases, but not necessarily all, the trial judge should isolate an intermediate fact and instruct the jury that this fact must be proven beyond reasonable doubt. In addition, regardless of what type of circumstantial evidence is relied upon, the jury must be instructed that the evidence, that is, the circumstantial evidence looked upon as a whole, must prove that the accused is guilty beyond reasonable doubt. Lastly, the trial judge should, in an appropriate case, instruct the jury that if there is another inference consistent with innocence reasonably open on the evidence, the jury should acquit. Dawson J, who delivered the leading judgment in Shepherd, said at 579: As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact — every piece of evidence — relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. The point which Dawson J makes in the last sentence of this passage goes to the weight of the evidence. To adopt Wigmore’s metaphor, the more strands in the cable there are, the heavier the load it can carry. Hence, the

more circumstantial facts there are which bear upon the question (and the stronger each fact individually may be) may give rise to a cumulative force of probity which increases the probability of guilt, although each fact looked at individually would not lead to any such conclusion by itself. In the Murdoch case, circumstantial evidence was relied upon to prove that, notwithstanding that no body was found and that honest witnesses claimed to have seen Falconio alive a week after the events which the Crown said led to his death, Falconio was no longer alive. Similarly, circumstantial evidence was led to prove that Murdoch was the perpetrator, notwithstanding that neither Lees nor anyone else saw him kill Falconio. Most of this evidence was ‘strands in the cable’ type evidence. We shall see in Chapter 1 how this evidence was gathered and what reliance was placed upon it at the trial.

1 2 3 4 5 6 7 8 9 10 11 12 13

14 15 16 17 18

R v Murdoch [2005] NTSC 80. Green v R (1971) 126 CLR 28; [1972] ALR 524. Cheatle v R (1993) 177 CLR 541; 116 ALR 1. Grey v R (2001) 184 ALR 593; 75 ALJR 1708; Mallard v R (2005) 224 CLR 125; 222 ALR 236. R v Apostilides (1984) 154 CLR 563; 53 ALR 445; Diehm v Director of Public Prosecutions (2013) 203 ALR 42; 88 ALJR 34. Mallard v R (2005) 224 CLR 125; 222 ALR 236. See the judgment of Dawson J in Grassby v R (1989) 168 CLR 1; 87 ALR 618, where there is a full discussion of the history and purpose of committal proceedings. See, for example, Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505. The charge sheet. R v Basher (1989) 39 A Crim R 337 at 339–40. That is to say, the formal charges will be read and the accused will be required to plead. This is a challenge to the whole jury panel. See, for example, R v Woods and Williams (2010) 246 FLR 4; [2010] NTSC 69 (FC). If a juror is stood aside, the juror’s name may go back into the barrel for further selection if the panel is exhausted before the jury is finalised. In a murder trial, the Crown is limited to 12 stand asides. Cited by Murphy J in Alexander v R (1981) 145 CLR 395; 34 ALR 289 at CLR 435. See generally Davies & Cody v R (1937) 57 CLR 170; [1937] ALR 321; Alexander v R (1981) 145 CLR 395; 34 ALR 289; Festa v R (2001) 208 CLR 593; 185 ALR 394. Festa v R 208 CLR 593; 185 ALR 394. Domican v R (1992) 173 CLR 555; 106 ALR 203. (2001) 208 CLR 593; 185 ALR 394.

19 20 21

Wigmore on Evidence, vol 9 (Chadbourn, rev ed 1981), pp 412–14, para 2497. (1984) 153 CLR 521; 51 ALR 225. (1990) 170 CLR 573; 97 ALR 161.

ACKNOWLEDGMENTS The author would like to thank Jack Karczewski QC, the Director of Public Prosecutions for the Northern Territory, for his assistance in accessing the exhibits, and, in particular, Mr Karczewski’s Executive Assistant, Patricia Smith, who had the unenviable task of sorting through all of the exhibits and providing copies.

CONTENTS Publisher’s Note Preface Acknowledgments CHAPTER 1 THE BACKGROUND TO THE TRIAL CHAPTER 2 COUNSEL FOR THE DEFENCE ADDRESSES THE JURY CHAPTER 3 THE FINAL ADDRESS BY THE PROSECUTOR CHAPTER 4 THE TRIAL JUDGE’S SUMMING UP TO THE JURY CHAPTER 5 THE APPEALS Appendix TRIAL EXHIBIT PHOTOGRAPHS Index

[page 1]

CHAPTER ONE THE BACKGROUND TO THE TRIAL INTRODUCTION 1.1 Peter Falconio was born on 20 September 1972, the third of four sons to Joan and Luciano Falconio, who lived in Huddersfield, a town of about 100,000 people in Yorkshire, England. He and his brothers attended high school in Homefirth, near Huddersfield. When Falconio was 19 years of age he moved out of the family home. At some stage, his father assisted him to purchase a cottage near his parents’ home. Falconio attended university in North Hampton for a year and then a university at Brighton, on the south coast of England. While still a student, he met Joanne Lees, born on 25 September 1973, who had also grown up in Huddersfield. In 1997 Lees left Huddersfield to live with Falconio in Brighton while he finished his degree in construction planning. Falconio graduated in 2000 and obtained employment with a local firm. He and Lees left Brighton together on 15 November 2000 on an around-the-world trip. After visiting Nepal, Thailand and Cambodia, they arrived in Sydney on 16 January 2001. While there, they both obtained employment to save for the next stage of their journey, which was to travel to Darwin via Alice Springs, then to Cairns and Brisbane and from there to fly to New Zealand, Fiji and the United States. While in Sydney, Lees worked at a Dymocks book store, where she met and befriended a young man named Nick with whom she had once had a brief relationship without Falconio’s knowledge.

THE EVENTS AT BARROW CREEK 1.2 In May 2001 Lees and Falconio purchased an old orange VW Kombi Van that had been fitted out as a camper-van. They left Sydney on 25 June 2001. Their journey took them through Canberra, Melbourne, Adelaide, Uluru and Kings Canyon, arriving in Alice Springs on Wednesday 11 July 2001. On the morning of Saturday 14 July, after attending to some repairs to the van and to other matters, Falconio consulted Maureen Laracy, an accountant in Alice Springs, about a possible tax refund. The meeting was held at 10 am and lasted for about 15 minutes. At this time, Lees was in a local library catching up on emails. After his meeting, Falconio joined Lees and they went to a café for breakfast, before going to the airport to change some airline tickets. That day they also attended ‘the Camel Cup’, an annual event held at the Alice Springs Show Grounds featuring camel races. The first event of the day began at 1 pm and the last at 4.15 pm. Entry to the cup was by fee and a sticker was handed out, which Lees attached to her [page 2] T-shirt. The couple left the cup at some time between 2 pm and 3 pm and returned to the Stuart Caravan Park, where Lees had a shower, and she and Falconio prepared to resume their journey north. They probably next went to the Red Rooster in Alice Springs, where Falconio ate lunch. They were not there long and business was quiet. Having enough fuel for their vehicle, they headed north along the Stuart Highway, stopping only at Ti Tree, a small town in the Northern Territory, for about 20 minutes to watch the sunset and to refuel. The fuel receipt indicated that they paid for the fuel at 6.21 pm. Lees drove the van until they reached Ti Tree, where Falconio took over driving. Darkness fell, and traffic on the highway was light. At a point about 10 km north of the small settlement at Barrow Creek and about 100 km north of Ti Tree, the driver of a four-wheel drive covered utility

which had been travelling behind the couple and in the same direction pulled alongside and gestured to them to pull over, indicating that there was something wrong at the rear of their vehicle. The interior of the four-wheel drive was lit up and Lees could see a male driver wearing a black baseball cap with a motif and a long-sleeved shirt with what appeared to be a T-shirt underneath. He wore a Mexican-style moustache which drooped down past the sides of his mouth. She also saw a dog sitting in the front of the utility. Falconio stopped the van, got out and walked towards the rear of the van, where the utility had also stopped and parked. Lees heard some discussion about sparks coming out of the van’s exhaust. Falconio then returned to the car on the driver’s side, collected his cigarettes and asked Lees to rev the engine. In the meantime, Lees had moved into the driver’s seat to get a better view of what was going on through the rear-vision mirror. After revving the engine a number of times, she heard what sounded like the vehicle back-firing — there was evidence that the van back-fired when it was driven faster than 90 km/h, or 55–60 m/h. The driver of the utility then came to the driver’s door of the van, holding in his right hand what Lees described as a silver pistol. The front door had been left open, so the interior light was on. Lees was instructed to turn off the engine, but was shaking so much that she was unable to do so. The man then partly entered the vehicle and turned the engine off, while Lees slid across to the passenger side. Pointing the gun at her right temple, the man told her to put her head down and her hands behind her back, and manacled her hands with handcuffs made of tape and cable ties and which were joined together about 3–4 inches apart.1 Lees was next taken out through the passenger door of the car and forced onto her knees. The man straddled her, grabbed hold of her legs and attempted to tie them together. Lees struggled and tried to escape, [page 3]

but eventually the man was able to tape her legs together. He then punched her in the right temple, partially stunning her, and lifted her to her feet, standing behind her and holding her by the back of the neck. She screamed out to Falconio for help but there was no response. The man then forced her over to the utility and unsuccessfully tried to tape her mouth, but she resisted, calling out for help. He then put a sack over her head which he had retrieved from the back of the utility, after having lifted a corner of the canvas canopy near the passenger side door, and forced her into the passenger seat of the vehicle. Because of the hold on her neck, Lees did not see any sign of Falconio as she passed behind the van. A short time later, the man removed the sack. The utility’s interior light was on and Lees saw the dog sitting in the driver’s seat. She described the dog as of medium build, chunky and with a patchy black or dark brown and white colouring. She also saw the man’s face at a distance of about 18 inches, or 45 cm. Eventually, Lees found herself in the back of the utility, lying on her stomach. She initially thought that she had climbed through to the back herself, but later thought it was possible that the man had pushed her there through the side of the canvas canopy. She rolled onto her back and asked her attacker why he was doing this — whether he wanted money or if he was going to rape her — to which the man responded to shut up or he would shoot her. The man moved off and left Lees in the back of the car. Lees heard a noise like scraping gravel. She sat up and moved towards the rear of the canopy, swung her legs over the back and ran into the bush, heading west. The bush was rough and grew thicker the further she went, and she could hear someone behind her. Eventually, Lees hid under some bushes. While hiding, she heard the man moving about and saw light from a torch, after which she heard vehicle doors opening and closing and an engine starting up. She also saw headlights and saw the vehicle move off in a southerly direction. Lees stayed where she was. After a time she heard a crunching noise, as if someone was moving about, and she later heard the noise of a vehicle door or doors and the sound of something being dragged. She again heard a vehicle door closing. The engine then started and the vehicle

drove off, heading south. While this was happening, Lees passed her legs through the manacles to the front of her body and unsuccessfully tried to bite through the manacles. She retrieved some lip balm from the pocket of her shorts, bit the lid off, which she spat out, and rubbed the balm onto the wrist bands in an unsuccessful effort to remove them. The tube of lip balm fell onto the ground.2 [page 4] Some hours later, while it was still pitch black, Lees moved back towards the road, crossing it and collapsing into some long grass. She decided to wait until a road train passed, with the idea of hailing it down. As she was afraid that her attacker might still be in the area she let a car pass rather than risk encountering him again. At about 12.45 am a road train with three trailers being driven by a man named Vincent Millar was heading south from Darwin to Alice Springs. Asleep in the bunk behind the seats was the second driver, Rodney Adams. After the road train had passed the 300 km sign (a sign indicating that Alice Springs is 300 km south), some 20 km north of Barrow Creek, Lees jumped out in front of it and onto the road, with her hands together above her head. Millar swerved to the right in order to miss her and, concerned he may have struck her, pulled over, woke up Adams and got out and examined the underside of the trailers. At that point he heard Lees approach him on the passenger side of the vehicle, asking for help. The men used cutters to remove the manacles and removed duct tape from around her legs and in her hair, which they stored in a tool box in the vehicle.3 Lees told the men briefly what had happened. The men disconnected the prime mover from the trailer and made an unsuccessful attempt to find the utility, the Kombi Van and Falconio. When Lees told Millar and Adams that her attacker was armed, they decided to call off the search. A small pyramid of dirt was noticed on the road (which was to become important later on when police searched the area). They reconnected the trailers and drove Lees to Barrow Creek, arriving at about 2 am. While Millar rang the Alice

Springs Police from the Barrow Creek Hotel, Adams stayed in the prime mover attending to Lees’ injuries. Lees was then coaxed out of the prime mover and taken into the hotel, where she was given a bed. The evidence from Dr Wright, who examined and treated Lees at the Alice Springs Hospital at about 6.40 pm on 15 July, was that she had multiple abrasions to both knees and elbows, scratches around one ankle, a small laceration over the front surface of her left knee and a scratch mark on her lower back. Millar, Adams and the publican of the Barrow Creek Hotel, Leslie Pilton, saw red marks on Lees’ wrists. All seemed to think that she was in shock. They also noticed swelling around her face and the scratches and abrasions. Subsequently, the police took photographs of Lees’ injuries, the clothes she was wearing4 and the cable ties and duct tape. [page 5]

THE POLICE SEARCH FOR EVIDENCE 1.3 Tennant Creek police arrived at the Barrow Creek Hotel on 15 July 2001 at about 4.20 am and shortly after a statement was taken from Lees for the first time. In the meantime, the superintendent in charge of the Alice Springs Police Station set up road blocks for all roads heading out of Barrow Creek. This included a road block at the turnoff to the Tanami Highway (referred to colloquially as the Tanami Track), which was set up at 7 am, another at the Charles River Bridge to the north of Alice Springs, which was in place by 4.30 am, but not on the Tanami Highway itself. Police were looking for a four-wheel drive being driven by a European male, and an orange Kombi Van. No suspect was found. Before leaving Barrow Creek to go to Alice Springs, Lees provided descriptions of the man, his dog and his utility. At about 6.30 am a party of four Alice Springs police officers arrived at the hotel and cordoned off the area. At about 7 am the police, together with Millar, drove north and found the Kombi Van parked

some distance off the Stuart Highway,5 along with the pyramid of dirt nearby which Millar had noticed earlier, under which appeared to be what looked like blood. A crime scene guard was established to protect the area. At around 7.45 am Det Sgt Kesby of the Alice Springs Police arrived at the hotel and took a description of Falconio, which was passed on to the command centre in Alice Springs. At about 9 am on the same day, Lees’ clothing and shoes were seized. Subsequently, the cable ties and duct tape were photographed and seized from the tool box in the prime mover. Later that morning, two crime scene examiners arrived and over the next day or so they conducted an extensive search of the area around the Stuart Highway where the Kombi van was found. There was no sign of Falconio. For months after, with the help of the general public, other locations in and around Barrow Creek and beyond where birds of prey were noted to be gathering were also searched, without any results. Among other things, the police located and photographed footprints, the lid of Lees’ lip balm was found and what appeared to be scrape marks and tyre tracks were photographed. What appeared to be a large pool of blood was located underneath the pyramid of dirt.6 Luminol testing was used to see if this and any other areas reacted positively for blood. The largest stain covered an area of 60 cm by 40 cm and there were two smaller stains to the south of that which could have come from material comprising the larger stain. There was also what appeared to be ‘dotting’ to the west of the largest [page 6] stain.7 There was no presumptive evidence of blood in the area where the Kombi Van was located. Police and a squad of officers from the Territory Response Group (the Police Tactical Group of the Northern Territory Police) conducted a large search in an effort to locate a gun, a bullet casing and a projectile, with no result. During a subsequent search in August 2001 police also located the lip balm tube and some

black duct tape under some leaves beneath a small tree, in the area near where the lid of the tube of lip balm had been found previously.8 The Kombi Van was carefully examined by the crime scene experts for fingerprints, signs of powder residue and DNA. They found small quantities of DNA on the steering wheel and the gear shift lever and also on the cable ties and the manacles’ wrist bands. Initially, results showed DNA consistent with Lees and Millar. Some of these samples were later retested in the United Kingdom, which revealed the presence of a third DNA profile. (This will be discussed further in later chapters.) Falconio had suffered from asthma and used a Ventolin inhaler, which was still in the van. Swabs were taken from the inhaler to establish his DNA profile, which was compared with DNA profiles taken from samples from his brother and father for verification. DNA samples were also taken from Lees, Millar and Adams and a number of police officers who may have come into contact with the cable ties, duct tape and Kombi Van, for exclusion purposes. Samples of the DNA taken from the apparent bloodstains showed that it was human blood, and there was a complete match with Falconio’s DNA profile. A bloodstain found on the back of the T-shirt worn by Lees9 produced a full DNA profile for a male person unknown until a late stage of the investigation. On the evening of 15 July 2001 and on the following day, Lees spent time with an Alice Springs police officer, Det Snr Cst Cummins, and a police artist, Mr Lohse, to produce a ‘comfit’ likeness of her assailant. This involved selecting various features from a comfit book and putting them together on a computer. Notes were taken of what Lees said during this process, which was that she was not entirely happy with the result because the hair was not quite right and that she could not find a hair configuration in the comfit book that was entirely accurate. The comfit image was released to the media shortly after it was completed.10 The police also released a photograph of Falconio as a missing person. [page 7]

On the evening of 15 July, two police constables were sent to the Shell Truck Stop on the northern side of Alice Springs, 5–10 km from the turnoff to the Tanami Track, to check security footage for the previous evening and that morning. The description given of the person police were looking for was of a male with a moustache, wearing a cap, jacket and trousers and driving a white four-wheel drive vehicle with a canopy. In the security footage the police identified a person of interest and a video-taped copy was made of the CCTV images, with the assistance of Mr Ride, who had installed the system and was responsible for its maintenance. The footage showed a vehicle at the truck stop and the person driving it entering the truck stop and leaving after purchasing fuel and goods.11 Unfortunately, the footage did not show the vehicle’s registration plate.12 Police also interviewed the console operators on duty at the time the footage was taken and discovered that the person concerned had paid for 117.56 L of diesel fuel, two bags of crushed ice, two Mount Franklin spring waters and one iced coffee, totaling $136.65. He had presented three $50 notes and received his change in cash. The receipt for the transaction was seized by police. The console operator who served the person, Mr Andrew Head, gave a brief description of the man which was not obviously dissimilar to that given by Lees of her attacker. Police later circulated a section of the footage to the media, asking for assistance from the general public. On 20 July 2001 police enlisted the services of an art teacher, David Stagg, to draw a likeness of the suspect’s vehicle and the gun, from instructions and descriptions given by Lees. This was done in the presence of another police officer, Brevet Sgt Elizabeth Andrew, who took notes as this was happening. A number of sketches were produced, including sketches representing parts of the four-wheel drive utility and a number of things which were in it, including the dog. As he drew, Stagg made notes on the sketches. Extensive police enquiries continued. A task force of 15 officers was set up at the beginning of September 2001 under the supervision of Det Sgt Chalker of the Alice Springs Police. The task force had four components: an intelligence cell, an investigation cell, a review cell and

an administration cell. Two witnesses, Melissa Kendall and Robert Brown, came forward and claimed to have seen Falconio with another man filling up a vehicle at Brown’s Service Station in Bourke, New South Wales one week after his disappearance. Kendall and Brown were called by the prosecution to give evidence at the subsequent trial. The police also located and interviewed a number of witnesses who assisted in verifying Lee’s account of her movements with Falconio. At the end of 2001, Lees returned to the United Kingdom. [page 8]

HEPI’S ACCOUNT OF MURDOCH’S DRUG RUNNING 1.4 On 16 May 2002 Det Sgt Peter Jenal of the Western Australian Police arrested a man named James Hepi in connection with the possession of 3.7 kg of marijuana found in a gas cylinder in Hepi’s utility. Hepi had been in a business relationship with a man named Bradley John Murdoch, transporting and distributing marijuana from Sedan in South Australia to Broome in Western Australia. On 31 May 2002 Hepi’s solicitor arranged a meeting with Jenal concerning information about the disappearance of Peter Falconio. Jenal took notes of that conversation and passed the information on to Det Sgt Chalker. On 28 August 2002 Murdoch was arrested by South Australian Police in relation to charges of rape and abduction. These charges were not directly related to the murder of Falconio and the abduction of Lees. The alleged victims were the de facto wife and daughter of a man named Fred Everitt, who occupied a block of land near Sedan in South Australia which neighbored a block owned by Hepi. Bail was refused and he remained in Yatala Prison in South Australia on remand pending trial. Hepi was not formally interviewed until 10 September 2002. The

account he gave to the police is not known, but it may be fairly assumed that it corresponded with his evidence given at the trial of Murdoch for the murder of Falconio and the abduction and assault on Lees, because it was not suggested in cross-examination that his evidence departed from his statement to the police. Briefly, Hepi’s account was that he first met Murdoch in Broome in about 1998. In 2000, while he was in New Zealand on a holiday, Murdoch telephoned him looking for marijuana and Hepi put him in touch with a supplier. Hepi had a house and two sheds on his block of land near Sedan on the River Murray (near Swan Reach). After he returned to Broome on the 21 November 2000 Hepi entered into an agreement with Murdoch to ‘run drugs’ (marijuana) from Sedan to Broome, a distance of over 3000 km which took around three days to cover. Various routes were used, including through the Tanami Track, as well as through Western Australia. Hepi’s preferred route was through the Tanami Track because it was shorter: it was 1800 km from Alice Springs to Broome and 1500 km from Alice Springs to Sedan. He said that the trip from Alice Springs to Broome would take 20 hours if he drove without stopping for a rest — he had driven the route in 2001 and it had taken him 18–20 hours. Murdoch was driving a Ford F100 utility when Hepi met up with him in late 2000. This was not a suitable vehicle for their operation, and in March 2001 Murdoch purchased a Toyota Landcruiser 75 Series, which was driven to Sedan where some alterations were made to it, which Hepi described. This included placing the bull bar and canopy from Murdoch’s [page 9] Ford utility onto the Toyota, and the tray was modified to fit in a fuel tank which was used to hide the marijuana. Further alterations to the Toyota’s tray and canopy were made in Broome subsequently, which Hepi also described. Murdoch used this vehicle to transport cannabis in 2001. It had a

diesel motor and a range in excess of 1800 km. With an extra tank fitted, it would hold in excess of 230 L of fuel. Whenever Murdoch travelled he took his Dalmatian, Jack, with him. The tray was neatly packed with everything needed for a trip, a piece of plywood was laid across its contents, and there was a swag that could be rolled out over the top. The front seats were changed to buckets seats and a piece of foam was laid over the floor on the passenger side so that the dog had more room. Hepi described the clothing Murdoch would wear, including caps, which were kept in the car to prevent or obscure CCTV footage of Murdoch’s face. In mid-July 2001 Hepi and Murdoch were living together in Forrest Street, Broome. The arrangement was that just before Murdoch returned from a trip he would call Hepi on his mobile phone so that Hepi could open the gates to the property without Murdoch having to stop. On 16 July 2001, Murdoch went to the yard of West Kimberley Diesel and was picked up and taken to Forrest Street by another person involved named Brian Johnston, otherwise known as ‘Sheriff’. When Murdoch arrived at Forrest Street, Hepi said that Murdoch had trimmed his moustache and cut his hair and that he was ‘fairly scattered’ because ‘he had been on the gear [amphetamines] for four or five days’. During the next few days Murdoch shaved off his moustache completely and cut his hair very short. It was common practice for both Hepi and Murdoch to change their appearance after a trip. However, in addition, after this trip extensive alterations were made to the vehicle. On 7 August 2001 a photograph taken from the Shell Truck Stop video which depicted a Toyota and the person of interest to police in relation to Falconio’s murder was published in The Western Australian newspaper. Murdoch claimed that he was not the person in the video. However, later, parts of the video were broadcast on television, which led to further discussion between Hepi and Murdoch because Hepi believed that Murdoch was the person in the video. Hepi claimed that Murdoch admitted to him that he was the person shown in the video. He also claimed that Murdoch carried a handgun in his vehicle, hidden in the front door or inside a camping table in the tray. When shown the video of the CCTV footage he said that he recognised Murdoch and his

vehicle. He also said that he and Murdoch had ended their business partnership following a discussion in Perth about some missing marijuana and money, and that shortly after that he was arrested by police for possession of marijuana hidden inside a gas bottle, based on ‘information received’, the inference being that Hepi believed that [page 10] the informer was Murdoch. In July 2002 Hepi pleaded guilty and received a suspended sentence of imprisonment. Telephone records later proved that a call had been made from a mobile phone registered in the name of Brian Johnston to Hepi at around 4 am on 16 July 2001. Johnston was later to give evidence that this phone, although in his own name, belonged to Murdoch.

LEES RECOGNISES MURDOCH 1.5 In October 2002 Lees was working in Sicily, when she was told by a friend that there was an article about her on the BBC website for 10 October 2002. Lees went online to read the article and saw a photograph of a person who was a suspect for the murder of Falconio. The photograph was that of Murdoch. She said that she immediately recognised the man in the photograph as her assailant. In late 2002, when she had returned to England, she was shown a photoboard which included a photograph of Murdoch, which she chose as being that of her attacker.13 The process of showing her the photoboard was recorded on video-tape. The photograph of Murdoch was taken in August 2002 shortly after his arrest on rape charges. It showed him with a full beard and moustache and with longer hair than in the internet photograph, where he was clean shaven and his hair was cut very short. This photograph was an angled view. At the trial, objection was taken to the admissibility of all identification evidence from Lees, including the photoboard evidence, and of any dock identification. Martin CJ ruled that the evidence was admissible and, in the exercise of his discretion, declined to reject it.14

The principal reason for admitting the evidence rested on three considerations. First, Lees had a good opportunity to see her attacker at the scene because she was close to him on two of the three occasions that she saw his face, with the vehicle’s interior light on to provide illumination, and she had ample time to get a clear look at his features. As to the Internet photograph, although it was unfortunate that Lees had seen it before seeing the photoboard, as there are dangers in admitting evidence in circumstances where the person seeing the photograph knows that it is a photograph of the suspect, she was not expecting to see a photograph of the suspect and had instantly recognised her attacker. It was, as the trial judge said, a spontaneous recognition. As to the photoboard, Murdoch had previously refused to take part in a line-up. The photograph in the photoboard was very different in material respects from the Internet photograph. Because of the extensive publicity given to the arrest, trial and acquittal of Murdoch on the South Australian charges, which the jury was unlikely to have forgotten, any prejudice arising from the fact that the photograph in the photoboard appeared to be [page 11] a police photograph would add nothing to the prejudice which Murdoch was faced with in any event, not only from the photograph but also from the fact that the jury would be made aware of his illegal drug activities. In those circumstances, while careful directions would need to be given to the jury to ensure that the evidence was not used improperly, the evidence had substantial probative value which outweighed its prejudicial effect. As to the objection concerning a dock identification which the Crown proposed to lead, Martin CJ ruled that as Lees had already identified Murdoch, the dock identification was only a formality and the Crown was proposing to rely on Lees’ other evidence. It is customary to admit a dock identification when there has been a previous identification from, for example, a photoboard. His

Honour cited, among many of the authorities to which he referred, the following passage from R v Clark:15 … a witness who has identified an accused person out of court should always be asked at the trial whether he or she can identify the accused in court. It gives an honest witness an opportunity of reconsidering the matter and it may also stop the jury from inferring wrongly from the absence of a dock identification that the witness is unable to make one. At various times, Lees was asked to comment on the appearance of her attacker’s dog and whether it was similar to other dogs. Her initial description of the dog, given on 15 July 2001, was that it was medium in size, brown and white, and short haired. While she was at the Barrow Creek Hotel, Lees saw a dog, ‘Tex’, belonging to Ms Curley, a barmaid and cook at the hotel. Lees described Tex as being similar in breed, colouring and ears to her attacker’s dog and was told that Tex was a Blue Heeler, a breed Lees had not seen before. In her statement to the police on 16 July 2001, Lees gave the same description of the dog but added that it was a Blue Heeler. Photographs were taken of both Tex and, much later, Murdoch’s dog, ‘Jack’, to be led in evidence. On 18 November 2002 Lees was shown a book entitled Dog-a-Log, which contained images of over 400 different breeds of dog. In a statement made on 18 November 2002 Lees said that, having looked at all of the photographs, the closest was a photograph on p 310 of an Australian Cattle Dog, which Martin CJ said would be commonly regarded as a Blue Heeler. In her statement, Lees said that this dog appeared to be similar in build, body shape and ears to her attacker’s dog. Subsequently, Lees was shown by the Director of Public Prosecutions a photograph of Tex, which in her evidence before the jury she said she recognised as the dog she saw at the Barrow Creek Hotel. She was also shown a photograph of Murdoch’s dog. Asked about similarities to the dog she saw at the scene of the crime, Lees referred to the body shape and ears being very similar. [page 12]

She was then told that the photograph was of the accused’s dog. Objection was taken at the trial to the admissibility of much of this evidence. It was put that Lees evidence should have been confined to the similarities between Tex and the dog in the book. Lees never made a positive identification of Jack. Martin CJ rejected this submission, observing that the jury could see the comparison between the three photographs of the dogs when they were tendered and make their own assessment of the worth of the evidence.16

MURDOCH’S DNA MATCH 1.6 After Murdoch had been acquitted of the charges he was facing in South Australia, he was arrested for the murder of Falconio, remanded in custody awaiting extradition and then extradited to the Northern Territory, arriving in Darwin on 14 December 2003. Samples were taken from Murdoch for DNA testing, which arrived in the laboratory on the 17 November 2003. When the DNA sample found on the back of Lees’ T-shirt was compared with Murdoch’s DNA it was found to be a complete profile (or ‘match’, as it is loosely called). Forensic biologist Carmen Eckhoff gave evidence that the chances of the blood on Lees’ T-shirt coming from a person other than Murdoch were in the order of 150 quadrillion to one; that is, it was 150 quadrillion times more likely that the blood on the T-shirt came from Murdoch than from someone else. There was also evidence that the blood had been smudged over a fold in the material in part of the back of the sleeve, which, according to Eckhoff, was consistent with the blood being wet when it came into contact with the T-shirt, and that because the stain was smudged in that way it was consistent with a person coming into direct contact with the T-shirt.17 This was powerful circumstantial evidence that Murdoch was Lees’ abductor and therefore Falconio’s killer, unless that evidence could somehow be explained away. It is necessary to give a brief explanation about DNA evidence and what use can be made of it. The following description is a brief summary of a PowerPoint presentation given by Eckhoff to the jury at the trial. Deoxyribonucleic Acid, or DNA, is a chemical inside a cell that

contains the genetic information needed to determine the building blocks of life and, in particular, a person’s inherited characteristics such as hair colour, skin colour, eye colour etc. Half of a person’s DNA is inherited paternally and the other half maternally. DNA is found in most body tissues — hair, bones, blood, semen, saliva and skin — and normally does not change during a person’s lifetime. Apart from identical twins, the DNA of an individual is different from every other individual except for the random and remote possibility of an unrelated individual receiving the same DNA. Tests can be [page 13] performed to determine whether DNA is animal or human and, if human, whether it is from a male or a female. DNA can be transferred from one object to another; for example, through blood, semen, skin cells or hair coming into contact with an object. When samples are collected for comparison with a known individual, such as the victim of a crime, the examination focuses on identifying specific DNA types, known as alleles, which are present at specific sites, known as loci. These sites vary widely between individuals. Using various laboratory techniques and specialised equipment it is possible to create a profile of each DNA sample, which enables a comparison to be made of the alleles at each site of the suspect and that of the sample being examined. Part of this process is to amplify each loci 28 times, which copies the DNA being targeted two to the power of 20 times. Depending on the type of equipment used, the number of sites examined may be either 10 or 16. If there is a complete match at each site, the result is almost conclusive evidence that the sample was DNA which belonged to the suspect. If there is not a complete match, the result is that the suspect is excluded as the person whose DNA is contained in the sample. If there is a positive result, a calculation is made according to certain mathematical formulae to determine the probability that someone other than the suspect contributed that DNA to the sample. In some cases, the sample

may not be a full sample in that not all of the loci are present. Testing can still result in a finding that the sample has not come from the suspect or it can lead to a finding that results in a lesser probability that the sample is the DNA left by the suspect and not some other person chosen at random. When the probability calculations are made, they are based on evidence containing the DNA of a large number of people stored in a data base. As there can be racial differences between populations, separate data bases are kept for people of different racial characteristics. If the suspect is Caucasian, the data base used will be Caucasian; if Aboriginal, the data base used will be Aboriginal, and so on.18 Profiles can also be mixed; that is, results show that the DNA in the sample has come from more than one person. It may be still possible to decide whether a suspect can be eliminated; alternatively, it may be possible to determine the degree of probability that one of the donors of the sample is the accused and no one else. Sometimes, the sample is too weak to show anything. Unlike fingerprints, which are not stable and disappear within a few days (or possibly a little longer depending on environmental conditions), DNA can last for a very long time, which means that it is not always possible to determine when the DNA was left behind. This is one potential mechanism for challenging conclusions of guilt built on DNA evidence. For example, there have been cases where a suspect has been charged with an offence [page 14] based on casual DNA19 found in a room where the offence was committed when it was proved that the suspect was in the same room weeks, months or even years previously. In the Murdoch trial it was suggested that somehow Murdoch came into physical contact with Lees accidentally at a time and place prior to the alleged murder, specifically at the Red Rooster in Alice Springs. Besides this were the following other possibilities: the sample was contaminated with Murdoch’s DNA before it was tested; the known

sample taken from Murdoch was not his DNA because the sample had been switched with DNA from another person, either accidently or deliberately; or there was contamination in the laboratory which somehow affected the process. Each of these possibilities was explored by defence counsel during the trial. The Northern Territory Police also arranged for the samples taken from the steering wheel and gear stick of the Kombi van and the cable ties to be retested by a DNA expert in the United Kingdom, Dr Jonathan Whitaker. Whitaker was part of a research team which, in the 1990s, developed a test for examining very small quantities of DNA. This form of testing, referred to as LCN (or Low Copy Number), used a process which enabled the copying of the sample to be made 34 times, instead of 28 times, during the amplification phase of the testing. The reason for copying or amplifying the DNA is that a large amount of DNA is needed in order to get a result. Because the methodology involves copying from a tiny amount of DNA, the process is repeated a second time to eliminate the possibility of minute bits of foreign DNA affecting the result. Testing of DNA found in the innermost layer of the adhesive inside the cable ties indicated an incomplete but substantial profile which matched Murdoch’s profile. The probability that the DNA left on the cable tie adhesive was from someone other than Murdoch was estimated to be one in 100 million. The results from the gear stick were less complete, the probability being one in 19,000. This evidence was controversial. Whitaker was cross-examined before the jury, with a view to showing that the results were unreliable for various reasons and not widely accepted in the scientific community, including by the FBI. The defence ultimately called evidence from a forensic scientist, Dr Katrine Both, to the effect that the science behind LCN copying was unreliable. A challenge to the admissibility of the evidence was rejected by the Chief Justice.20 No further challenge was mounted on appeal. [page 15]

GUN SHOT EVIDENCE

1.7 Two of the problems facing the Crown case were the lack of evidence of gunshot residue found on the rear of the Kombi Van and the fact that no spent bullet casing or projectile had been found. A forensic expert in gunshot residue, Harold Wrobel, was called to explain that, in his experience, when a person is shot in the head at close range with a .22 pistol, the projectile invariably does not exit the skull. He also was of the opinion that any gunshot residue, if it had fallen onto the vehicle, would be easily dislodged and therefore its absence in this case was explicable.21 Similarly, he gave evidence that if the person who had fired the gun had then entered the vehicle and had driven it, there were many reasons why no residue would be found at a later time. As to the possibility that Lees might have smelt something, Wrobel’s evidence was that gunpowder, which contains sulphur, is no longer used in the manufacture of bullets and that the propellant which is now used, nitrocellulose powder, although it does have a smell, does not smell of sulphur and might not be noticeable at all, depending on the conditions. Expert pathologist Dr Noel Woodford was called by the Crown to give evidence to explain the absence of any brain or bone matter found at the scene. The effect of his evidence was that if a person was shot, either in the body or the head, with a .22 revolver the projectile may not exit the body, and that if shot in the head any bone fragments or brain matter could fall on the body or on the clothing of the victim, and that it was not necessarily the case that it would fall on the ground in sufficient quantities to be noticeable. In order to make out the Crown case that Falconio was shot with a .22 revolver, evidence was given from witnesses who knew Murdoch and who had seen a small pistol in his possession. One of these witnesses, Julie McPhail, had met Murdoch while on a road trip from Perth to Adelaide. During the course of the journey they had travelled together, albeit in different vehicles, and had stopped several times for rest breaks. McPhail gave evidence that at one of these stops she had mentioned to Murdoch that she would like to buy a pearl-handled ladies pistol and that Murdoch had produced a small silver revolver about the size of the palm of a hand and had offered it to her for sale,

but she had declined to purchase it. The other witness, Rachael Maxwell, had been Hepi’s girlfriend at the time. She said that on one occasion she had entered a room in which Murdoch and Hepi were sitting at a table, and had seen a small pistol on the table, silver in colour with a wooden handle. It was put to Maxwell that the gun [page 16] might have been Hepi’s, and that when she saw the gun Murdoch was not even there, to which she replied that she was fairly sure that both Murdoch and Hepi were there, but that the gun might have been Hepi’s. Hepi gave no evidence before the jury of seeing a silver gun and it was not put to him that he owned one. This evidence had been objected to but ruled in by the trial judge.22

EVIDENCE ABOUT FALCONIO’S BELONGINGS 1.8 Evidence was given at the trial from Falconio’s father and brother. This was to the general effect that the family was a close one, that Falconio usually made contact with someone in the family, such as one of his brothers or his mother or father, on a regular basis either by telephone or email, even when overseas, that he had never missed calling on an occasion such as Christmas and that the last contact he had made was on 12 July 2001 when he telephoned and spoke to both of his parents. They also noted that the cottage in England was still in his name. The police had also recovered Falconio’s passport and credit cards from the Kombi Van. Evidence was given by Snr Sgt Megan Rowe of the Northern Territory Police that, apart from withdrawals lawfully made by Lees, there had been no activity on Falconio’s bank account or credit card since his disappearance. Checks were also made with missing persons’ bureaus, former friends and work-mates in Sydney and the Department of Immigration, but no-one had heard from him. A list was made of any property belonging to Falconio that was missing. This included a St Christopher’s medal, a watch and a jacket. Descriptions of the missing items were given to the Bureau of

Criminal Intelligence around Australia so that they could keep an eye out for these items through pawn shops etc but nothing was found. Rowe also gave evidence of responses received from the general public about persons matching the description of Falconio, and the description of his attacker and his vehicle, and of how investigators eliminated persons or vehicles of interest. Checks were also done on vehicles and individuals who had gone through the road blocks set up by police whose details had been recorded, to no avail. Extensive enquiries were made through hotels and motels of all persons staying in the Northern Territory at about the relevant time, resulting in various checks being made, but this yielded nothing substantial.

EVIDENCE ABOUT DISTANCES AND ROUTES 1.9 The Shell Truck Stop video was considered important to the Crown case because if the accused could be positively identified as being the person in the video, this meant that he was in Alice Springs at 12.45 am on Sunday 15 July. Given the distance between where the murder took place and [page 17] Alice Springs, and the distance between Alice Springs and Broome, it was possible to calculate whether the accused had time to carry out the murder of Falconio and the abduction of Lees, hide Falconio’s body and return to Broome by the time of the phone call to Hepi at 4 am on 16 July, allowing for the hour-and-a-half time difference between the Northern Territory and Western Australia. The calculations carried some assumptions about the average speed of travel, the condition of the roads, particularly the unsealed roads in the Northern Territory and Western Australia, whether or not Murdoch had stopped for a rest and how long it might have taken him to hide the body. The timing suggested that if Murdoch had left the Shell Truck Stop shortly after 12.45 am he would have got onto the Tanami Track before the police road block was in place.

The Crown called Peter Jamieson, the owner of the fuel station at Fitzroy Crossing, who gave evidence to the general effect that Murdoch had stopped at the fuel station sometime between 6 pm and 9 pm on either the Saturday or the Sunday night in question, and that he had parked behind the station. He was towing a camper-trailer. He left the fuel station after a short time and may have bought a steak sandwich. Assuming that this was on the Sunday night, it fitted with the general assumptions about the speed of travel. Other witnesses were called who had travelled with Murdoch on other occasions along the Tanami Track, to establish their understanding of his driving habits, where he bought fuel, the speeds he would travel at and whether he carried a gun in the vehicle. Murdoch gave evidence at his trial that although he had been in Alice Springs on the Saturday he did not stop at the Shell Truck Stop, but had stopped at a BP station because he preferred to use BP diesel. He said that he had left Alice Springs by mid-afternoon and did not travel north to Barrow Creek, but took the turn-off to Broome along the Tanami Track. He also gave evidence that he had stopped for food at the Red Rooster in Alice Springs and had bought some Jerry cans and a dash mat for his Toyota at a Repco store in Alice Springs. He had a receipt for the Repco transaction which showed that the purchase was made on the 14 July at 1.15 pm. Murdoch claimed that the Tanami Track was not in very good condition and that he had driven slowly, at about 55–60 km/h, for most of that part of the journey, contrary to the assumptions that had been made and evidence given against him that he had travelled at about 100 km/h on other occasions. If Murdoch had left Alice Springs at 3.30 pm, the defence case was that by the time of the killing he was well along the Tanami Track and hundreds of kilometres away. Consequently, the identification of Murdoch as the person in the truck stop video became of great significance during the trial. The Crown also led evidence as to the condition of the road at that time from persons who had travelled along the Tanami Track on both

[page 18] sides of the border, to the general effect that the road was in good condition. Photographs taken of sections of the road in about mid-July 2001 were also tendered. Further, the Crown called a pharmaceutical expert, Professor Jason White, to prove that if Murdoch has consumed methylamphetamine (speed) he could have stayed awake and energised for up to three days without needing to sleep. Murdoch agreed that he had taken amphetamines on the trip, but only after he had left Fitzroy Crossing. According to Darryl Cragan, who had travelled with Murdoch on one of the drug runs across the Tanami Track, Murdoch had refueled on one occasion at the Shell Truck Stop. In order to support the Crown case that it was Murdoch seen on the truck stop video, the Crown called a number of witnesses who knew Murdoch, including Hepi and his former associate, Brian Johnston, and Beverley Allan, a friend of Murdoch’s who also lived in Broome, to give evidence to the effect that they had seen the video and recognised Murdoch because of his gait, clothes, moustache, facial features etc. The Crown had also intended to call Julie McPhail on this issue. Objection was taken to the admissibility of all of this evidence. Martin CJ rejected the evidence of McPhail because she did not know Murdoch well enough, but admitted the evidence of the others.23 The same witnesses also claimed to have recognised Murdoch’s vehicle in the video footage. One difficulty facing the Crown was the fact that, on the face of it, there did not seem to be an explanation as to why Murdoch had gone north to Barrow Creek instead of turning off to the Tanami Track. The Crown proved that Murdoch varied his routes to avoid suspicion and there were two other routes that he took which would take him that far north along the Stuart Highway before turning west. The Crown case was that Murdoch had not refuelled at Alice Springs before leaving there on the Saturday afternoon. There were plenty of other places he could have refueled after Barrow Creek. Murdoch’s own evidence was that there were fruit fly inspectors on the other routes west, but not on

the Tanami Track. If Murdoch had killed Falconio, it was not inconceivable that he would have returned to Alice Springs to refuel and then taken the Tanami Track as the best way of avoiding detection.

CHANGES TO MURDOCH’S VAN 1.10 By the time of Murdoch’s arrest in South Australia for the rape and sexual assault charges, his Toyota had undergone fundamental changes, both to the canopy and to the vehicle itself. Murdoch’s Toyota was a mixture of parts from a Toyota and a Ford F100 he had owned previously. The changes included transferring to the Toyota compliance plates and other identifying [page 19] indicia from one of his earlier vehicles. Evidence was called from a number of witnesses to prove that the canopy had also undergone significant changes after 13 July 2001. This necessitated calling a large number of witnesses to prove the times at which these changes had occurred. The purpose of this evidence was to establish that the vehicle shown in the truck stop video was Murdoch’s, and to show that Murdoch had made the changes to hide the appearance of the vehicle, as part of a plan to disguise himself and his vehicle from any investigation into the death of Falconio. Murdoch did not deny making the changes to the vehicle but maintained that certain features of the vehicle shown in the truck stop video were not features of his vehicle, supporting his evidence that he was not the person shown in the video. Further, he maintained that he was trailing a camper-trailer, which was not shown in the video. His initial explanation for making the changes was partly his pursuing a hobby, partly to teach someone else his mechanical skills and partly because the vehicle had needed extensive repairs. In cross-examination, Murdoch agreed also that he had wanted to change the identity of his vehicle to avoid detection from the authorities, but, he added, also from his business rivals.

EVIDENCE OF DR SUTISNO ON FACIAL MAPPING 1.11 Another witness of significance to strengthen the truck stop video evidence was Dr Meiya Sutisno, an expert in facial and body mapping. In 2004 she was engaged by the police to look at the truck stop video and compare the images in that video with photographs of Murdoch, to see if any conclusions could be reached as to the identity of the person in the video. The underlying principle employed was that no two individuals are the same in habits and morphology or in facial character and structure. No two skulls and faces are the same or alike in their entirety. Sutisno undertook a ‘feature-by-feature analysis’ approach to establish identity, by comparing morphology, relative proportions, posture, gait, racial traits, distinguishing features and habitual characteristics. Thus the process involved identifying relative similarities and/or differences between the images. Finally, two enlarged images were overlaid to demonstrate the alignments of matched morphological features or areas of marked differences, to provide a visual display using video or computer technology of the definitive resemblances or differences between the photograph of Murdoch and the man in the truck stop video. In aid of this process, Sutisno produced 18 photoboards bearing images from the truck stop video and images of the appellant obtained from the media and other sources. The process of body mapping was said by Sutisno to be an extension of the process used in facial mapping. Sutisno concluded that Murdoch was the person shown in the video. The admissibility of this evidence had been challenged but the trial judge [page 20] had ruled it in.24 The defence called Professor Henneberg, who held the position of the Wood Jones Chair of Anthropological and Comparative Anatomy at the University of Adelaide, to the effect that it was his practise never to state identification with 100 per cent certainty

but to express an opinion based on probabilities, because, unless there was some anatomical anomaly or disfigurement, one could never be certain. He criticised Sutisno’s conclusions because he considered that the video images were of such poor quality that they could not be used to assess the anatomical detail which Sutisno had described. He was also critical of Sutisno’s conclusions to the extent that they were based on the particular build of the individual shown in the video, which, in his opinion, showed nothing unusual. The defence also called Dr Gail Spring, an Associate Professor of Scientific Photography. The effect of her evidence was that when digital images are copied onto video tape, much of the information is destroyed or lost, and further information is destroyed or lost when still images are taken from tapes of motion pictures. Any attempt to enhance the still images could result in unreliable information because, among other things, it could produce artifacts which were not actually there. Because the original image of the face in this case was only very small, the amount of data stored to capture that part of the image was also very small in the first place. In Spring’s opinion, the resolution of the video was too poor and the size of the face captured too small to draw any reliable conclusions from it.

LEGAL PERSONNEL IN THE CASE 1.12 At the trial, counsel for the Crown was the Director of Public Prosecutions, Rex Wild QC, with Tony Elliott and Anne Barnett as his juniors. Mr Wild QC had been recruited from the Victorian Bar in 1995 as Senior Crown Counsel and held the position of Director of Public Prosecutions from 1996 to 2006. At the trial, he dealt with addresses and many of the witnesses. Both Elliott and Barnett also led many of the witnesses. The Crown called a total of 81 witnesses and the defence called the accused and five other witnesses. A number of admissions were made by the accused in relation to minor matters not in dispute, which saved calling a number of other potential witnesses. The Crown tendered approximately 330 exhibits. Some of the photographic exhibits were tendered as a bundle, but most of the important photographs were tendered individually. In addition, there were some

‘real’ exhibits, among which were the Kombi Van itself and Lees’ Tshirt. Because of the large number of exhibits, each juror was provided with a copy of the paper exhibits. In addition, slides of the paper exhibits were shown during the giving of evidence by use of [page 21] an overhead projector. Videos were also tendered. The jury had facilities available to them in the jury room to replay any of the electronic exhibits. Counsel for the accused was Grant Algie and Mark Twiggs, both from South Australia. Algie was a senior junior at the Adelaide Bar and no stranger to the criminal courts. He had been Murdoch’s counsel at the rape trial. Twiggs was also an experienced criminal lawyer, having been involved in the Snowtown murders trial (the ‘bodies in the barrel’ case), which had been presided over by Martin J when he was a judge of the Supreme Court of South Australia. The defence tendered 14 exhibits. The trial judge, Martin CJ, was an experienced judge originally appointed to the South Australian Supreme Court in 1999. Prior to that he had held positions as Crown Prosecutor for the State of South Australia and Commonwealth Director of Public Prosecutions. He had also practised for 12 years at the Independent Bar. He was appointed Chief Justice of the Supreme Court of the Northern Territory on 27 January 2004, a position he held until he retired in 2010. Since then, he has remained as an additional judge of the court.25 The trial lasted from 25 October 2005 until 13 December 2005 when verdicts of guilty on each count were arrived at. Subsequently, Martin CJ sentenced Murdoch to imprisonment for life for murder, four years’ imprisonment for deprivation of liberty and two years’ imprisonment for aggravated assault, all sentences to be served concurrently. Unlike in the United States of America, it is not possible under Australian law to order sentences to be served cumulatively if one of the sentences imposed is a life sentence. A non-parole period of

28 years was also imposed, which under Northern Territory law means that Murdoch cannot be considered eligible for parole by the Parole Board until he has completed 28 years of actual imprisonment. If parole is then granted, failure to comply with the conditions of parole could see it revoked, with the result that Murdoch would have to serve the whole of the balance of his sentence. Given Murdoch’s age, there is a real chance that he will die in prison.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

20 21

22 23 24

See Exhibit P29, Photo 1. See Exhibit P134A, Photo 2. See Exhibit P69, Photo 3. See Exhibit P13, Photo 4. See Exhibit P62, Photo 5. See Exhibit P78, Photo 6. See Exhibit P80, Photo 7. See Exhibit P11A, Photo 8. See Exhibit P161, Photo 9. See Exhibit P32, Photo 10. See Exhibits P253 and P254, Photos 11 and 12. See Exhibit P252, Photo 13. See Exhibit P48, Photo 14. Murdoch is in Photo 10. R v Murdoch (2005) 150 NTR 1; [2005] NTSC 75 (1996) 1 A Crim R 46 at 51–2 per Cox J. R v Murdoch (2005) 150 NTR 1; [2005] NTSC 75 at [94]–[128]. See Exhibit P214, Photo 15. See Latcha v R (1998) 8 NTLR 122; 127 NTR 1 at NTLR 129–31. ‘Casual DNA’ is an expression used to indicate that DNA has been taken from, for example, skin or hair samples found in a location where a crime was committed, in circumstances where the skin or hair could have been left by a person at any time in the past simply by their presence at the location, or could have been transferred to the site by someone else or something else moving to the site but carrying the hair or skin on clothing, fabrics or in some other way and depositing it accidentally at the site; for example, by brushing or otherwise coming into contact with some other object at the site. R v Murdoch [2005] NTSC 76. See Exhibit P236, Photo 16, which shows gunshot residue being expelled from a gun after it was discharged, to illustrate the point that the residue did not proceed further than about 3 m from the end of the barrel. R v Murdoch [2005] NTSC 79. R v Murdoch [2005] NTSC 78. R v Murdoch [2005] NTSC 78.

25

An ‘additional judge’ is a non-resident judge who holds office to age 70. Additional judges do not sit regularly in the court but may be called upon from time to time at the request of the Chief Justice.

[page 23]

CHAPTER TWO COUNSEL FOR THE DEFENCE ADDRESSES THE JURY OVERVIEW 2.1 Because Mr Algie called evidence, apart from the evidence of Mr Murdoch, which went to the facts of the case, the law at the time required him to address the jury first. That law has since been changed, so that counsel for the accused now always addresses the jury last. Algie’s address lasted for a little under a day-and-a-half. There were breaks in the address at regular intervals and at lunch time, which I have not indicated in reproducing the address below. The basic structure of Algie’s address was to try to cast a reasonable doubt on the Crown case in relation to the two important issues in the trial. Has the Crown proved that Mr Falconio is dead? If not, that is the end of the case. If the jury is satisfied that this has been proven, has the Crown proved that Murdoch was the person responsible? In the process of doing so, Algie used circumstantial evidence of a negative kind as well as of a positive kind to support his case. As to negative evidence, if it can be shown that something did not happen, this might lead to an inference that something else did not happen either, thereby undermining a positive inference being alleged against Murdoch. In relation particularly to the truck stop CCTV evidence, Algie called in aid a number of pieces of circumstantial evidence, both of a positive and negative kind, to support his contention that Murdoch was not the person shown in the CCTV footage. Algie relied on the presumption of innocence as the starting point for the evaluation of the circumstantial evidence relating to both issues. Because his client was presumed innocent, it was put that he could know what happened

at Barrow Creek because he was not there. There were other possibilities which Algie explored. Was Ms Lees a party to Falconio’s disappearance? If not, was someone else involved in his disappearance, such as the unknown person seen with the person identified by Mr Brown and Ms Kendall at Brown’s Service Station at Bourke a week later? In order to support these possibilities, Algie suggested that there were a number of factors which he described as ‘strange’ as implying support for these suggestions. In effect, he attempted to use circumstantial evidence in a negative way to cast doubt on the Crown case. after dealing with the burden of proof and some general matters which I have not reproduced here, Algie dealt with the evidence relating to the circumstances of the attack on Lees and the shooting of Falconio. He attempted to cast doubt on whether Falconio was dead and to imply that Lees may have been a party to his disappearance.

ADDRESS TO THE JURY MR ALGIE: Now the difficulty that I have is that there’s a limit to the help I can give you because as you’ve heard from my client, Brad Murdoch, he wasn’t there. So it’s not a case where he can tell you what happened, you know, on his version of events because he wasn’t there, and that I suppose provides some limitations insofar as the help I can give. [page 24] I’ve just been reflecting on this for some time and it may be, members of the jury, that there was some unusual features arising from the prosecution case in relation to what’s meant to have happened 10 km north of Barrow Creek. And unusual features, members of the jury, may be of importance to you when you’re asked to consider what, if anything, you can be satisfied of beyond a reasonable doubt, 10 km north of Barrow Creek. Because if there are features that just don’t look right, don’t fit, then they themselves may be the source of a doubt that arises to you.

In relation to some of these features, some may mean nothing to you, some might be of some importance, some may be of lesser importance, but I simply take the time at this point to raise some of the issues that may help you in the course of trying to resolve this matter. Take for instance blood on the Kombi. Now there were two spots of blood on the Kombi and both of them were non-human. The prosecution case, as you appreciate, is that Peter Falconio was shot with a handgun or a pistol, a revolver, at the back of the Kombi. Now there’s none of his blood on the Kombi at the back of the Kombi and you’ll appreciate that the scenario involves the backfiring of the exhaust and Mr Falconio and this man there when he’s shot. Now is that just a little feature that doesn’t quite sound right? And true it is and you’ve heard experts postulating how it might be that there was no blood but he was nevertheless shot and you’ll take that on board and that may satisfy you, that may provide you with the explanation, perhaps not. Perhaps it’s a source of disquiet. Perhaps it’s just one feature in what I suggest are quite a number that doesn’t quite add up at Barrow Creek. It’s a matter for you. While we’re talking about blood. You have the photographs of the bloodstaining on the roadway, on the side of the road, the sort of pool of blood, that area there. Why isn’t there, members of the jury, some sort of a trail of blood or dragging through the blood pool? Is that of concern, members of the jury, does that again, on what you understand the Crown case to be, moving and taking away of a body presumably from that spot? Is it just another feature that doesn’t quite fit or are you happy with the explanations that have been postulated? It’s a matter for you. Why isn’t there any blood spatter either on the Kombi or in the area where this is meant to have happened? Now again, people have made suggestions as to why that might be but it’s a little unusual, you might think. It’s a matter for you. What do you make, members of the jury, of the evidence of Mr Millar, namely, that when he first saw the scene, there was the little pyramid? I think he described it as a pyramid of dirt over the blood. What is all that about, members of the jury? How do you rationalise the pyramid of dirt? I mean, presumably this man had killed Mr Falconio

and taken his body. Why would he make a little pyramid of dirt? As a marker of some kind, members of the jury? Is that what it is meant to be? It’s curious, you might think. I mean, the blood is there, there’s no question about that. And it’s Mr Falconio’s blood. So, is the pyramid of dirt some sort of marker? And if so, why? Why would you want — why would the bad guy, who’s meant to have shot him, want a little pyramid of dirt marking it? It’s just another feature that you might find curious. It might trouble you, members of the jury. There’s no projectile. And they searched and searched and searched, didn’t they, members of the jury, with those metal detectors. They’re finding bottle tops and ring-pulls 18 inches down, was it, or 8 inches down, I can’t remember, but you might be satisfied that there was little wanting in terms of the endeavours of the police in searching for the [page 25] projectile. Of course they want the projectile, it’s the first thing you’d be looking for, you want the projectile. It’s not there. I mean, again, all of these things are entirely for you. You might think, ‘Why is Algie wasting his time talking to us about this, it goes nowhere?’ Well, that’s fine. That’s a matter for you. But you might think that there’s something in it. I know that they’ve called expert evidence to explain. Well, you know, a projectile could’ve lodged in the bone or the skull and that’s why you don’t find it. Well, you’ll take that on board; that might be right. But it might be the combination of these issues that produces some genuine concern. Now, we’ve then got the three marks out in the scrub which may well be footprints. Certainly, one of them was identified as a footprint so probably the three of them are. But they’re not the footprints of Joanne Lees and there aren’t many footprints of Joanne Lees apparently. Just these three as I recall the evidence. And it turns out now that analysing her sandal it’s not from her. And they’re not left by any of the eight

pairs of shoes that came from Mr Murdoch. So who left them there? These three footprints. And members of the jury, one of the major features which you might think is a little odd with respect to Barrow Creek, or 10 km north of Barrow Creek, is that you have no body. Now, on the one hand, I suppose, it’s tempting to say, ‘Well, that’s right because obviously the bad guy has gathered up the body and taken it somewhere and disposed of it or buried it’. But it might be that that thesis is worthy of a little more careful analysis because you might think when you look at it more carefully it doesn’t quite hold up because in the context of the Crown case, you might think it would be very odd indeed. You could hold the Crown case up to the light and sort of just distance yourself a little from it and look at it and what does it say, what are you asked to accept? It goes a bit like this doesn’t it; Mr Falconio and Ms Lees are driving along happily north of Barrow Creek when this unknown bad guy pulls them over. He doesn’t know them from a bar of soap, Ms Lees doesn’t know him, it’s completely random, totally unrelated and for reasons which are perhaps hard to divine, the bad guy shoots Mr Falconio on the side of the road, dead. Then after trying to restrain Ms Lees and put her in the back of his car, she escapes into the bush and he can’t find her, the bad guy can’t find her. So, that’s the simplified version, but I don’t think it’s necessarily inaccurate, the simplified and accurate version of the thumbnail sketch of the Crown case, so we’ve got you might think, the unknown, unrelated random bad guy out in the middle of nowhere, 10 km north of Barrow Creek, we’ve got a dead person there, we’ve got a Kombi Van next to him, and we’ve got the eyewitness hiding in the bush somewhere who can’t be found. Well, you just go don’t you, you just get in the four-wheel drive and go, why would you possibly pick up a dead body, complete with blood presumably and put it in your car? Why would you do that? You’ve [You’d] have to be nuts, there’s absolutely no rational explanation you might think — and again, it’s a matter for you, it’s a matter for you members of the jury, it’s not for me to tell you, I’m just trying to help. But why would you pick up the dead body in those circumstances and

put it in your car, because you would have to expect that once you’re driving off with the dead body there is a significant and reasonable likelihood that the eyewitness is going to run out onto the road and pull over the first vehicle that comes along and say, ‘Look, this guy has driven off, presumably with the body in his car’. How could it be reasonably expected that Ms Lees would wait for however many hours, and that’s the Crown case, before raising the alarm. Because if she didn’t wait for X many hours, if she did it 10 minutes later, we have got the bad guy driving up or down the Stuart Highway with a body in his [page 26] car. It just doesn’t quite make sense when you analyse it carefully, does it? There’s just something, you might think, all a bit wrong about that. What about the manacles or the handcuffs themselves, is there something just a little bit strange about that? If you’ve got cable ties and you want to handcuff somebody or manacle, don’t you just grab the cable tie and put both hands in it, and go zip, and there you’ve got them, just like that, no problem? What is the point, members of the jury, on any rational assessment of these somewhat elaborate handcuffs and perhaps more to the point, why build them with three loops in the middle of them, what’s the point of that?1 And again I invite you to reflect on this and other issues and ask yourselves, ‘Is that odd? Am I comfortable with that?’ or is there something strange about that? Because you might think it’s the presence of the three loops and the distance that they provide that allows the relative ease of movement from the hands behind the back to the hands at the front. But then again, if you’ve got a bad guy building handcuffs, why, what is the point of incorporating that feature? It may well be that feature that allows the lip balm to be got out of the pocket, whereas if you just cable tied your two wrists together it would be unlikely, you might think, you could do that, certainly if your hands were behind your back. It’s just strange, members of the jury. Could you drive a car with three loops between your handcuffs?

Because that might be something you might need to consider in the course of your reflection on Barrow Creek. 2.2

This is to imply that Lees could have driven the Kombi Van off the road and hidden it herself.

MR ALGIE: There were other things, members of the jury, that you might want to look at. You might look at the description of how it is said by Ms Lees that this man puts those handcuffs on in the first place and you might, and you’re entitled to reflect on any differences that there may appear to be between what she was telling the police in earlier statements and what she tells you now in court, because those differences, if you find that there are differences of significance or importance, may also give rise to concerns when you’re asked to find beyond a reasonable doubt that something happened at Barrow Creek. And you’ll remember, just as an example, she told the police in one of the statements that the man was kneeling on the driver’s seat, that her hands were behind her back with the inside of her wrists together and the man put his knee on her back, ‘Don’t know if he used both knees but it was heavy’ is what she told the police. Now you’re entitled to reflect on that, particularly as you have the Kombi, you can see the space available, the dimensions, that sort of thing. You remember that she says as soon as the vehicle was pulled over, Peter got out; she got into the driver’s seat. Why? It’s a matter for you. She gave several explanations; it’s a matter upon which you can reflect. You recall that she says she went from inside the Kombi and ended up outside on the side of the road there, that’s how I think she explains the injuries to her knees and she describes the position lying down on the road and a man trying to put tape around her legs. Is that a little odd, members of the jury? It’s a matter for you. [page 27]

Don’t you think in those circumstances if the man wanted to put tape around her legs he could have and would have? If she’s lying face down on her stomach with her hands handcuffed behind her back, a man standing over her and grabbing her legs, it’s not going to be too hard to tie them up with tape if that’s what he wanted to do, is it? It’s a matter for you to assess, members of the jury. You’ve all been around; you understand the way the world works, does that sound right? Members of the jury, she also tells you that it was when she was in that position on the ground, lying face down, hands handcuffed behind her back, that that’s when the injuries to her elbows were caused. And you’ve all got photographs of that. You’ll recall that the injuries appear to be at the outer aspect of the elbow, you can see it in the photographs. Well, members of the jury, is there something a bit wrong with that anatomically, perhaps I should have asked Prof Henneberg but you could probably work that out yourselves, members of the jury. Just imagine yourself in that position with your hands behind your back, lying on your stomach, how could the injuries be caused to that part of the elbow? It’s a matter for members of the jury but it again might be a feature that causes you disquiet, or do you think she was crawling under the truck after Mr Millar stopped; it’s a matter for you. You heard in the course of cross-examination what Mr Millar said to the police when he talked about crawling under the truck and you heard him explain that he didn’t mean, as it were, crawling on his hands and knees, but again that’s a really good point if you chose to spend some time on it, members of the jury, for you to reflect on. What he said when he first spoke to the police and his explanation for it now, and why if there is a reason, because you might think that it’s an interesting feature that arises in relation to a few witnesses in this case where at one point they seem to be saying one thing, and subsequently particularly in trial here, they’re sort of distancing themselves from it. I mean, Mr Stagg you might think is the high water mark of that. Libby Andrews perhaps, Ms Southerden who thought she saw the number plate, 333 but sort of distancing. And you might think that Ms Lees is another example of saying one thing at one point and now

distancing herself from it. Well, members of the jury, these are important things for you to consider as well. Particularly if it’s a witness of some importance that you’re asked to accept beyond reasonable doubt, why is there the change in story, does the change itself cause you concern, cause you to doubt? 2.3

Mr Stagg was the art teacher who had drawn sketches of the vehicle from descriptions given to him by Lees. He had given evidence at the committal hearing that Lees had told him that she had slipped the manacles over to the front of her body while still in the canopy, but when cross-examined about it Stagg said that he doubted whether she had said that to him. Ms Southerden was an employee at the Shell Truck Stop who had gone out to look at the registration number on the Toyota, because this was not visible on the CCTV cameras inside the shop. It was the practise from time to time for an employee to go outside and write down the registration number of a vehicle in case the customer drove off without paying. Southerden was unable to find any paper with the number written down on it when the police spoke to her, and she said that some days later, after thinking about it, she thought the number had ‘333’ in it, and she told the police this in her statement. In evidence before the jury she conceded that she may have been wrong about that.

[page 28] MR ALGIE: She says — Ms Lees — she says that when she was on the ground, the man trying to put the tape on her legs, ‘I was struggling, moving, kicking my legs apart’, but interestingly she held her head up so her head wasn’t on the ground. Well, is it of concern, members of the jury, that it appears that there are in fact no injuries. Do you find it strange that there appears to be a complete absence of injuries on the front of her body, other than her knees and on her face, it’s a matter for you, members of the jury, but you’ll recall Dr Wright who saw her in

Alice Springs a day or two later, identified no injury to the face, no record of injury to the front of the body, chest, stomach, thigh and he did identify those little faint scratches on her calf area of her legs, so it might be members of the jury, that you take the view that if there were injuries to those areas, he would’ve identified them and you might take the view, members of the jury, that if this happened as she described there would’ve been injuries, so what does it mean? A bit odd isn’t it, members of the jury? And of course members of the jury, you will recall she was crossexamined about this as well, in one of her earlier statements to the police on this topic, she said, ‘I think he pushed me out’, that’s out of the Kombi, members of the jury, ‘because I landed on my face, it felt like blood in my mouth like I’d lost a tooth’. But now that seems to have changed and indeed her face was held up. That’s a matter for you, members of the jury. What do you make of her description of being in that position with her hands behind her and somehow grabbing or trying to grab this man’s testicles? Does that have an air of unreality about it, members of the jury? It is concerning? What about how she says she’s walked from the Kombi to the fourwheel drive? The lights of the four-wheel drive, of course, are still on but she doesn’t see Pete — Peter Falconio. Is that a bit weird? Because the Crown case and her evidence which would suggest that if he was shot, he was shot at the back of the Kombi, which is a distance in front of the four-wheel drive and the four-wheel drive has got its lights on and she walks up to the four-wheel drive, surely she would glance to see where Peter was. Is there something really strange about that, members of the jury? It’s a matter for you. The man takes her glasses off when he’s in the Kombi. Does that have an air of unreality about it? A matter for you. When she’s in the Kombi she says that the man poked the handgun, the revolver, at her temple or her head but no smell. No, they don’t use gunpowder anymore but they use some sort of propellant that would have a smell, I think, according to Mr Wrobel. She doesn’t tell us of a

smell. Now, there may be an explanation for that, I suppose. Mr Wrobel may have provided some sort of an explanation. Perhaps she was frightened, didn’t smell it, but these sorts of things, members of the jury, are worthy of at least consideration because they may individually or collectively cause you some real difficulty in accepting what, if anything, happened north of Barrow Creek. Then there’s the dog, members of the jury. Now, putting aside what actual flavour of dog it may have been, have you ever heard of such a dog? It’s sitting there in the car, driver’s seat. It’s not barking or sniffing or licking or anything. Just staring straight ahead, sort of dog. This is while there is a stranger, presumably Ms Lees is a stranger to the dog, being as it were pushed into the vehicle, probably some yelling or carrying on. This dog doesn’t do anything. 2.4

There was evidence from a number of other witnesses to the effect that the dog, Jack, was a very quiet and obedient animal.

[page 29] MR ALGIE: I struggle with an explanation for that, members of the jury, but you’re the judges of the facts, you probably know dogs better than me. Perhaps there are such dogs. A seeing-eye dog, perhaps, and highly trained to sit quietly and face the front but, anyway, it’s a matter for you what you make of the dog. I mean, you might have the same problem with respect to not being found in the bush and she gets out of the car, the four-wheel drive, runs off, the man doesn’t catch her. It’s not clear whether he took the dog looking for her or not, you might think on the evidence, but gee, it’d be a bit odd if he didn’t, wouldn’t it? A man’s out there with his dog, the first thing he’d do is grab a torch and the dog and go and find her. Dogs are good at that. You can smell them and all that sort of thing. It’s a bit strange, members of the jury. A matter for you. I mentioned before the evidence of Mr Stagg. He, on an earlier

occasion, gave evidence at the committal about what Ms Lees told him about putting her hands from the back to the front in the back of the four-wheel drive. Not later on in the bush. In the back of the four-wheel drive, not later on in the bush, in the back of the four-wheel drive. Now you heard him give evidence in this court saying that he had reflected on that, as it were, and wasn’t sure that he might not have got that all wrong. Well, it’s just the sort of issue for a jury to look at. With your collective experience of life and people, reflect on that. Do you think he might have just got that wrong, that he said it to the police in his statement and when he gave evidence about it at the committal or do you think he’s a man, for one reason or another, perhaps not entirely clear or to be known why but is retracting, is changing his story? If indeed, when he first said that, he was right. You might think that for all of the criticisms that might be able to made of Mr Stagg, he’s a man who you might think appeared to be a fairly careful, thorough sort of a fellow. So how likely is it that he might have been wrong about that, but if he was right, how does that reflect on Ms Lees if she said that to him? It’s a matter for you, members of the jury. The Aileron evidence, members of the jury, may be important, because it really does throw out, you might think, the prosecution timeline. Because if the people from Aileron are right, two issues arise. First of all, Peter Falconio and Joanne Lees were apparently at Aileron sometime between about 3.30 and 4.30 on that afternoon, you might think. There were different estimates of the time, as you’d expect from three different people, but around about that time seems to be right. And they sat down, I think the evidence was they had something to eat, a cup of coffee or whatever. So how does that fit with the time for leaving Alice Springs if they are at Aileron say at 3.30 or even at 4.00? Members of the jury, even if they left Aileron at 4.30, they don’t get to Ti Tree until 6.30 or thereabouts. Where’s the time in the middle gone, if you find there is a time in the middle? So Aileron could be very important to you, members of the jury, for assessing timeline and whether there is time missing or whether the estimate of the time leaving Alice Springs can be relied upon. The other thing that you’ll

need to think about with respect to the Aileron witnesses — this is Floyd, Oatley and Dick — is if they were at Aileron, why didn’t Ms Lees tell you about it? 2.5

The Aileron witnesses were Anne Floyd, Michael Oatley and Gregory Dick. Floyd said that a couple of tourists in an orange Kombi Van had stopped at the Aileron Hotel for some sandwiches. She did not see the man’s face and saw only the back of the woman. She heard them talking and did not hear an accent.

[page 30] Oatley also saw the orange Kombi Van and spoke to both of the tourists. He said that the female had an English accent and the male had a foreign accent, which could have been Italian, and that he gave them some brochures and postcards about the area. He described the man as being 6 ft tall and roughly as tall as he was: 6 ft 4 in. No brochures or post cards were later found in the vehicle when it was searched by police. Oatley was not shown photographs of Lees and Falconio by the police but had seen pictures of them on television and in the newspapers. He said that he was 90 per cent sure that those pictures were of the two tourists. Dick was certain it was them. He had seen their photographs in the newspaper. He also saw the Kombi Van. His description of Falconio was that he was either Greek or Italian in appearance and that he spoke with an Italian accent. The evidence was that Falconio did not speak with an Italian or Greek accent; his accent was English. Various descriptions of the Kombi Van were also given. The police evidence was that there were three other orange Kombi Vans located in the Northern Territory over the next day or so. MR ALGIE: Remember Vince Millar driving south on the highway sometime around probably midnight or 1 o’clock and he’s

approaching Barrow Creek and approaching the spot where he comes upon Joanne Lees. Do you remember he saw what appeared to be the lights of a vehicle heading north? I don’t read a lot of evidence, but I’ll just read to you what he said he saw, because it might be important. When I was about 40 km north of Barrow Creek, travelling south on the Stuart Highway, I was travelling at 85 km an hour with the lights in the vehicle on high beam. I saw a car coming in the distance, so I flicked my high beam down to low beam. I would estimate that the car was about 20 km south of me at that stage. I continued driving with the truck lights on low beam for 3 or 4 km and had not seen the vehicle come any closer, so I turned my high beam back on. About a kilometre after I’d put the high beam lights back on, I saw the lights again. The lights were coming from the south and although I was travelling, I did not seem to be getting any closer to the source of the lights. I was curious so I turned my headlights off for about three or four seconds, so I could understand the pattern as to what was going on with the lights that I’d seen. I could continually see the lights to the south of me. When I had the truck lights on and off, I would describe the lights as being bright. When I put the lights back on, I put them back on at high beam, I would estimate that, based upon my experience as a truck driver, the distance between high beam and low beam in this truck is about 150 m. When I put the high beam back on, I saw the light again coming from a southerly direction, I do not believe that the lights were moving and it was more a case of me travelling towards the lights. The movements of the lights are what made me think that something was going on. I saw a blur of a light in the distance which I thought was a car doing a U-turn which is what it looked like to me at the time. It just seemed as though the light went around. Then all of a sudden there was darkness and I thought to myself, ‘I wonder what that was’. I continued on driving to Barrow Creek and I remember hitting the 300 km peg to Alice Springs, which is 20 km from Barrow Creek.

[page 31] Now again, that was Mr Millar’s observation. What do you make of that? If there were lights there, were they from a vehicle? Probably, you might think. A stationary vehicle — at least that’s how it appeared to Mr Millar, he appeared to be approaching it as opposed to it approaching him. Somewhere, you might think, was this vehicle between 40 km north of Barrow Creek and Barrow Creek. Joanne Lees, we know, was 10 km north of Barrow Creek because as he drove down to that point, she approached him. What was this car, if it was a car with the lights? Where did it go, did it have anything to do with 10 km north of Barrow Creek? It’s a matter for you, members of the jury, but I remind you of it in case you think it’s important. Members of the jury, what might be of importance also is the evidence of Pamela Brown and Jasper Haines. You’ll recall their evidence, I hope, because they were the Aboriginal couple who’d been up to Ali Curung visiting some people, watching the football or listening to the football, then they’d come back onto the Stuart Highway, got the flat tyre, changed a tyre at Taylor’s Crossing when they got some help from some other people there and then continued driving south along the Stuart Highway. It was dark by then, estimating times are a bit difficult but they were driving down, only going about, I think they said about 80 km an hour, because they didn’t want to blow another tyre, probably weren’t in much of a hurry, heading south. And what did they see, members of the jury, white four-wheel drive, you might think, come out from the right-hand side of the road and indeed Mr Haines saw the vehicle pull out from behind where the Kombi was on the right-hand side of the road. A white four-wheel drive pulled out from behind the Kombi and then headed north, members of the jury, headed north, because Ms. Brown and Mr Haines are going south, obviously they see it, goes north past them and then they travel a little further on and they see the Kombi van, the orange Kombi parked on the side of the road.

A couple of things that arise there, you might think. If Ms Brown and Mr Haines saw the vehicle of the bad guy, he was heading north, not south and the prosecution case theory is that he heads south. So what do you make of that? And if they saw the vehicle of the bad guy heading north, presumably Mr Falconio was in it heading north. But where does that leave you, members of the jury, in terms of the orange Kombi being parked on the side of the road? How does the orange Kombi get from being parked on the side of the road in those circumstances into the bush? Who drives the orange Kombi from the side of the road to the point 100 m or however many metres it was in the bush where it was found by the police the next day? What do you make of that, members of the jury, is that just a little curious? Will it be suggested that the bad guy in the white four-wheel drive heading north comes back and moves the orange Kombi? Because if that’s going to be suggested, you’d need to ask yourselves why. Why would you possibly do that? This is worthy of an application of your collective life experience. Even if you were prepared to countenance that the unknown, unrelated bad guy took the time and trouble to take a dead body north, presumably to get rid of it, do you really accept, can you imagine that he then turns around, having had the body in his car, presumably, turns around and comes back to the point where all this is meant to have happened, complete with blood on the road and the like, in order to move the Kombi when the eyewitness is presumably still there and could have, for all the bad guy knew, run straight out onto the road and raised the alarm? The police could’ve been on their way when he’s driving back south to move the Kombi. It’s a matter for you, members of the jury, but again I invite you to look at it carefully because it really is difficult to survive logical analysis. [page 32] Members of the jury, the other unusual feature, I suggest, in this case

that may cause you some difficulty is you are and will be asked by the prosecution to find proved a charge of murder when there is no body. And you might think, again it’s a matter for you, that if in fact Mr Falconio had been killed that night, as the prosecution assert, you would likely have found his body. 2.6

At this point, Algie moves towards casting doubt on whether or not the Crown has proved that Murdoch was the person concerned, if indeed there was such a person. He begins by suggesting that the evidence of the timings does not fit the Crown case.

MR ALGIE: Again, going back to the timelines and these, of course, are matters for you, you’ll look at time and motion and distance and the like and come to your own conclusions but just to illustrate in a notoverly detailed manner that the point I invite you to consider, they leave Ti Tree, I think, 6.30 pm or sometime after 6.30 pm. You’ve got the receipt that details when the purchase of the petrol took place. But they leave Ti Tree sometime after that. The distance to the point at Barrow Creek is about a 100 km and they’re travelling in the 30 year old Kombi, not all that mechanically sound, you might think, so you’ll make some estimation of the time it would likely have taken to get to the point at Barrow Creek. An hour, hour and a half, perhaps. I think they stopped at some point where there was a fire, so you’ll factor that in and work out whether you think they got there at 8.00, 8.30, whatever you think is appropriate. You’ll then have to make some allowance for the amount of time you think that the incident at Barrow Creek, if you find it happened, how long it took in terms of get her in the back of the car, look for her in the bush, move the vehicle to put the lights on to try and look for her, etc, etcetera. On the prosecution case, put the Kombi back in the bush, come back, get in the four-wheel drive and head off. How long does that realistically leave the bad guy to get from this point at Barrow Creek to the Shell Truck Stop because the prosecution case is that there is, in the Shell Truck Stop, I think he arrives at about

12.38 am, from memory, but the time is on the pictures that you’ve got. It’s 300 km or thereabouts. So you need to say, well, as best we can discern, he would’ve left Barrow Creek at 9 o’clock, 9.30 or half past 8, whatever you think on the evidence. He’s got to travel that distance, well, you think that would’ve taken so long. He’s at the Truck Stop at 12.38 am on the prosecution case. How much spare time does he have to get rid of the body? Because if he’s only got say half an hour spare, if he chooses to drive off the Stuart Highway as you might think you would logically do, he’s only got 15 minutes worth of time to get to the point to get rid of the body. If it’s a more advanced scenario of digging a grave or something like that, well, he’ll have less time to get off the Stuart Highway because time will be required to bury the body, if that’s what is meant to have happened. The point I make to you, members of the jury, is when you look at it in terms of timelines, there is very little opportunity to actually get rid of a body too far away from the Stuart Highway itself. And again I suggest to you one thing about which there could be little criticism, is the searching undertaken by the police, extensive searching you [page 33] might think, Kesby and his people did line searching, 200 m either side of where the blood was, both sides of the Stuart Highway. I think it was Officer Kesby that even identified the remains of a kangaroo on 18 July, 53 km north. So it starts to give rise, I suggest, to some degree of confidence that if there had actually have been a body, it would likely have been found. I mean if they’re finding a kangaroo 50 km north, and you know if he’s only got 15 minutes of travelling time, you’re not going to get much more than 50 km north, or you’re not going to get that far, are you. 50 k, 100 k an hour, you’d need 30 minutes to travel that distance, 53 km and 100 k an hour, he might have been going a bit faster than that, maybe you could do it 20 minutes, then to come back it would take you 40 minutes.

Officer McPhee found duct tape between Barrow Creek and Ti Tree, that’s how detailed the search was you might think. Sergeant Grant searched a [sic] 130 km north and 20 km south of Ti Tree, he searched mine shafts in the area. Spilsbury found electrical tape somewhere 23 km north, blue and white material 14 km north. He found another shoe impression 1.2 km away from the site. I’ve already mentioned the metal detectors. But members of the jury, you might think that if there was a body disposed of in any way, it would likely have been found. 2.7

Algie is asking the jury to draw a negative inference from the circumstantial evidence that Falconio might still be alive. He uses the evidence called by the Crown to show that a thorough search was undertaken, to suggest that it was so thorough that if there was a body to be found, the police would have found it.

MR ALGIE: Even with birds of prey as you would know, the birds are attracted to bodies and I think it was acknowledged by one of the police, or it might have been a couple of the police, that they were alerted to birds apparently circling in the area and went and investigated that. I think they found — I think it was at one of the dumps or something, but these are the things they’re obviously conscious of, these are the things they were looking for and members of the jury, I suggest to you, that if there had been a body they would likely have found it. Or is [it] to be suggested on the prosecution case that the body, having been put in the back of the four-wheel drive, remained in the four-wheel drive when the man was at the Shell Truck Stop? If that’s to be put to you by the prosecution, well, no doubt you will consider it, but members of the jury you might have difficulty accepting that as a concept because even on the Crown case, this has to be a couple of hours, three hours after the event, how could the man at the Shell Truck Stop have any confidence that by that stage the alarm had not already been raised? If he did it, and I’ll make some suggestions about why there’s no evidence of that later, but if the man at the Truck Stop did it, he couldn’t be confident that the alarm hadn’t been raised

two or three hours earlier. And so do you really think he’d drive into a Truck Stop with a body in the car, particularly one where apparently there was a police car on a night patrol at the petrol bowser? The evidence of that was from, I think, Ms Southerden or it might have been Mr Head but you may recall that. So the absence of a body, I suggest, in circumstances such as these, is a legitimate basis for serious concern when you’re asked to return a verdict of murder. [page 34] I should also mention in relation to what will be put by the prosecution that it is the guy in the Shell Truck Stop, that’s the bad guy, don’t overlook the evidence of Ms Brown and Mr Haines about how they continued going south down the highway after they’d seen the Kombi on the side of the road, they were only travelling about 80 km an hour or thereabouts, got some fuel at Barrow Creek, kept going, turned off at Ti Tree to go to their community, they did not see any other cars on the road that night. So you might think that again, in terms of the timeline, severely limits the opportunity of somebody to get from north of Barrow Creek to the Shell Truck Stop by 12.38 am, particularly somebody who according to Ms. Brown and Mr Haines, was travelling north. A matter for you, members of the jury. 2.8

At this point Algie deals with the evidence about the Crown theory that Falconio was shot with a .22 revolver.

MR ALGIE: Members of the jury, the other thing that may be disquieting is this, you might think on a proper analysis there is no actual evidence that a gun was ever fired. No forensic evidence that would support it. I’ve already mentioned there’s no projectile. You’ve heard that although the Kombi was swabbed for gunshot residue, it was never tested. In fact I think it was Dr Thatcher, the head of Forensic Science in Darwin who said it wasn’t tested because there was no forensic

evidence that a gun was fired. They tested the steering wheel swab for gunshot residue, none found. So there’s no bullet, there’s no bony material, there’s no brain material and Dr Woodford, the expert called by the prosecution, he offered theories as to why this may be so and, you know, it could possibly happen. A matter for you to assess those, members of the jury, but again it may be the source of some concern. We don’t have any drag marks in the pool of blood. I think I’ve already mentioned that. We don’t have any blood trails or blood spatter and that is so despite Ms Lees describing hearing dragging noises when she is in the bush. You’ll need to consider the evidence of the couple from Broome. You might think, and it’s again a matter for you, that they were basically honest, truthful people who were telling you the truth as they saw it. My old man probably would have said, ‘salt of the earth’. Sorry, I said Broome, I should have said Bourke. People from Bourke. So that’s a fact that you’ll have to take into account, members of the jury, certainly in relation to Ms. Kendall. It would be difficult to suggest that she was doing anything other than giving an absolutely truthful account of what she saw. I mean she’s the Deputy Registrar or the Court Registrar in the Local Court. She was obviously troubled by what she saw, members of the jury, because she spoke to a friend of hers — or the parents-inlaw initially and then to people at the court and then to the police. Might she be right? 2.9

This was a reference to the evidence of Melissa Kendall and Robert Brown, who claimed to have seen Falconio with another man filling up a vehicle at Brown’s Service Station in Bourke about a week after the disappearance of Falconio.

MR ALGIE: These are the sorts of things you’ll need to consider, members of the jury, I mean from your own experience, knowledge of the way the world works. You probably

[page 35] know that from time to time some people do disappear themselves for reasons perhaps best known to them. Sometimes they turn up later, sometimes they don’t. But the difficulty for you, members of the jury, is as I said before, you will be asked to convict my client of murder and there is no body. Now, true it is, and it will probably be said to you that there are cases where there is no body found and yet a murder has occurred. Well, that is undoubtedly so. But you might think there are normally cases where there is an explanation, at the very least, for what has happened. Perhaps an eyewitness to the actual killing, coupled with an eyewitness to the disposal of the body in certain circumstances where there is, at least, an explanation as to what happened that a jury can act upon and say, ‘Well, all right, I accept what I’m told about that, I accept that that could’ve happened and it did happen and that’s why there isn’t a body’. This, you might think, is not such a case. I mean, the first problem with which you’ll be confronted, I suspect, on this topic is there does not appear to be any rational explanation as to why the bad guy would’ve disposed of the body. It’s not like perhaps a domestic situation where if the person is found dead, their killer can be identified because of a relationship they’re having. Or a situation where it’s a dispute about lots of gambling money or something like that where it’s known that the deceased owed a lot of money to somebody and therefore if the deceased is found dead, the identity of the killer can be identified more readily by reference to that death. It’s just not one of those situations, members of the jury. Or, you know, a dispute among an outlaw motorcycle club whereby, you know, one of the club members is found dead, the likely killers can be identified because police or others know of an ongoing dispute between the parties. It’s just not one of those situations. So, you may be troubled because there would appear to be no

reason, no reason whatsoever, as to why Peter Falconio’s body would be in the four-wheel drive when it left Barrow Creek. And that is so whether it went north or south. There is no reason, I suggest, as to why the bad guy would take his body. Unless he wasn’t dead. But that’s a matter for you, members of the jury. 2.10

Algie now seeks to cast doubt on whether the Crown, even if it has proved that Falconio is dead, has proved that it was the defendant who was the killer.

MR ALGIE: Ladies and gentlemen, the other significant matter that you’ll need to consider if you are satisfied beyond a reasonable doubt that something happened at Barrow Creek or that Mr Falconio was killed there, and that’s a matter for you, but even if you reach that degree of satisfaction with respect to Barrow Creek, the next obvious issue is who did it. Or, I suppose, more correctly, in this case, can you be satisfied beyond a reasonable doubt on the evidence presented that it was Brad Murdoch? Because that’s the real issue. Now, when you’re reflecting on that, if you get to that point, you would need to take into account what I suggest are two assumptions that have been made very early in the investigation of this matter and indeed which continue to form the foundation of the prosecution case. The first is this: it is assumed, I suggest, that if there was a bad guy at Barrow Creek, he actually left his DNA or blood on Ms Lees. [page 36] And the second assumption which I suggest has been the foundation of the investigation and the prosecution is that if there was a bad guy at Barrow Creek, that guy is the man in the Truck Stop at Shell. Now it’s ultimately a matter for you as are all issues of fact in this case, but it’s a matter for you whether you ultimately find that to be proved, either of those assumptions, but I suggest to you that there

really is no basis to make those assumptions and no evidence I suggest, members of the jury, that would support them. The first point I make is this. Is there any evidence that would lead you to conclude that the bad guy at Barrow Creek was actually bleeding in order to leave blood on her T-shirt, any evidence at all? You see I suggest there’s not. It’s not a case where you would conclude by what you’ve been told, what the evidence is about it, that, ‘Oh, I would expect his blood to be on Joanne Lees’, because you wouldn’t, you wouldn’t. 2.11

There was no evidence of any blood from Murdoch found except on Lee’s T-shirt. There was no evidence from Lees to suggest that Murdoch had been injured in some way that would have caused him to bleed. Algie is questioning the reliability of an inference that the finding of Murdoch’s blood on the T-shirt must have come from an attack, rather than by some other means such as casual or secondary contact at the Red Rooster in Alice Springs.

MR ALGIE: And is there any evidence that would lead you to conclude that the man in the Truck Stop is the man at Barrow Creek? In fact early on in the piece, I think the evidence was that Ms Lees said they were different — the man in the Truck Stop was older, from memory. I mean, just dealing with the man in the Truck Stop for a moment, he could’ve come from anywhere, you might think that the very reasonable possibility exists that he could’ve driven in from down south, fueled up intending to you know, head off north or spend the night in Alice Springs and then travel to the next destination. I mean for all we know he may live in Alice Springs, he might’ve just gone down to the Truck Stop to fuel up before going home to be in order [sic] that he can head off on a long trip early the next morning. It’s just a guy in a truck stop with a four-wheel drive similar to those driven by thousands of people, it’s just a guy in a truck stop with a moustache, if you think there is a moustache there, that’s all it is, just an indistinct guy in a truck stop.

But the problem is, you might think, that from quite early in the piece, the whole police investigation proceeded on the basis of those two assumptions. One, when we find the guy who matches the DNA on the blood spot, then we’ve found the guy from Barrow Creek. Not so. When we find the guy who appears to be fuelling up at the Truck Stop, then that will be the guy from Barrow Creek. Not so. Where is the evidence that, members of the jury, would support that? The situation you might think is this — in relation to the blood or the DNA, blood you might think is obviously capable of both primary and secondary transfer. There’s nothing stopping blood being transferred from me to you if we just bump into each other accidentally, if I’d got a cut or blood on me. What you do know, members of the jury, is that Ms Lees was in Alice Springs certainly for most of the day on 14 July and for a couple of days before. She was apparently wearing the T-shirt on 14 July during the whole time she was in Alice Springs. There is on the very face of it, members of the jury, [page 37] given that fact alone the very real possibility that any blood on her Tshirt could have been a product of primary or secondary transfer while she’s in Alice Springs, while she was in Ti Tree, while she was in Aileron, if she was there. So you might have thought your starting point would be — well, hold on a minute, this blood could have got there at any time that she was wearing the T-shirt in any place on 14 July. On what basis did the police assume that it was left by the guy at Barrow Creek? It is, to you, I suggest to you, improperly analysed, a baseless assumption. Members of the jury, what else do we know about Joanne Lees, the T-shirt in Alice Springs? Well, members of the jury, we know because she’s told you, that on 14 July she went to Red Rooster. Now there’s some perhaps uncertainty as to exactly what time she went there. Initially it was in the afternoon. You have the notes of the conversation she had with Libby Andrew, I think on 23 July 2001, where it’s

suggested or it’s said that she went there in the morning — and you can see that where the sequence of events is recorded in the brown paper bag note. But whether she was there in the morning or in the afternoon or lunchtime is probably of no great consequence because it’s the fact that she was there and you might think Brad Murdoch was there on the same day that is important. Because you know now that Brad Murdoch was in Alice Springs. He’s told you the sequence of events as he recalls them, on 14 July. His evidence was, I think, between about 10.30 am and 3.00 or 3.30 pm, when he left to go up the Tanami. He went to Red Rooster, he went to Repco, he did some other things in that area. Isn’t there a very obvious and reasonable possibility that given that evidence and that information there is a very real chance that any of his DNA on the back of her T-shirt could have been accidentally deposited without anybody knowing about it in Alice Springs? It may not have even been a primary transfer. It’s possible, you might think, it could have been secondary insofar as if Brad Murdoch is at Red Rooster, if he’s done some work on his car or done something, got a cut or something, he could leave a small amount of blood on a seat, on a door, doorframe, something like that. She comes along after and there’s a secondary transfer that takes place. How easy could that happen, particularly when you might be prepared to accept that perhaps not surprisingly they were both in the same shop on the same day at the same time or at different times, it may not matter. Is there any evidence that would tend to support the finding that the blood got onto her T-shirt at Alice Springs instead of Barrow Creek? Well, there is really, isn’t there, members of the jury, and it’s important evidence and it’s evidence from Brad Murdoch who told you, ‘I wasn’t at Barrow Creek. I was in Alice Springs. I was at Red Rooster. I did go to Repco. I went and washed the underneath of the car. I went to Bi-Lo and got some food. I fuelled up at the BP. I headed up the Tanami. I was in Alice Springs. So ipso facto, I suppose it could have happened in Alice Springs because I was there, but I wasn’t in Barrow Creek’. And of course he’s not going to know that it happened. He’s not going to be in a position to say, ‘Yes, I remember now, four years

down the track. That’s right, I did, I had a little cut on my finger and I do remember I was going into Red Rooster, I might have been coming out of Red Rooster and as I was, this dark haired English tourist was coming in and I just guided her through the door and that’s when I would have left it there’. It would be nonsense if he said that, because you wouldn’t remember, none of us would remember. It would be something that would not even feature in our short term recall, let alone years later. But members of the jury, we all know it could happen. [page 38] And interestingly, it could have happened, you might think, at the Camel Cup, except he didn’t go to the Camel Cup. He told you where he went, ‘I went to these places and I left’. So when he says he was at Red Rooster and then he went to Repco, it just might be that he’s telling you the truth about that. 2.12

Algie casts doubt on the identification evidence which the Crown relies on to show that the person in the truck stop CCTV footage is the accused. His main argument is that the CCTV image is so poor that any identification of the accused from that footage is unreliable. A secondary argument is based upon the suggestion that the witnesses, particularly Mr Hepi, were biased or had their own interests to serve in giving evidence against the accused.

MR ALGIE: Is there evidence that, members of the jury, tends to establish that Brad Murdoch was in the Shell Truck Stop? Well, it might be suggested to you that you could rely upon the evidence of people like Mr Hepi and Bev Allan and Sheriff and the like who look at the video and say, ‘Oh yes, that looks like Brad Murdoch’. They purport to recognise him because they know him from the video. Well, again, it’s a matter for you as the jurors to assess how reliable

that evidence is. Whether any or all of these people have a motive to exaggerate their evidence on that topic or whether they are completely reliable and you would accept that. But you might think that at best, all they can really say is that, ‘Well, the image in the Truck Stop appears similar to how I recall Brad Murdoch’. And that might be in fairness the extent of their evidence on that topic. Because, members of the jury, when you look at the image from the Truck Stop, you might think it really is very poor. You might think the best way of appreciating that is to have a look at the prints. There are two prints that you have: one of the car, one of the person. I think you’ve got two of the person and they’re exhibits 252, 253, and 254.2 And you might think that the reason those images are so poor in terms of detail is for the reasons that Prof Spring explained about the mechanism of surveillance cameras and then the loss of data as various transfers are undertaken. I don’t suppose exactly why they’re so poor is all that important. It’s the fact of their paucity in terms of when you’re asked to rely upon purported identification from them. And members of the jury, it may be important to recall that other people, not being Brad Murdoch, were apparently identified as being in the video or being similar to the person in the video by other people. So, it’s again a matter for you what confidence you can place in any purported identification or recognition from the video but again, there is cogent evidence to say that the likes of Hepi, Alan and Sheriff, when they purport to recognise or say that it’s Brad Murdoch, are wrong or mistaken and that is the evidence of Brad Murdoch. He told you it’s not him in the Truck Stop. It might look similar but it’s not him. Of course, Mr Hepi, while I’m on him, takes things in his evidence something of a step further. He also claims to have seen Mr Murdoch making handcuffs out of cable ties on the block at Sedan. Now, what you make of that is a matter for you but you’ll recall that his description of what he claims to have seen as given in evidence before you here differed from what he told the police in the statement. I mean, in an earlier statement

[page 39] he said he didn’t see him using tape. I think he said they were single ties as opposed to double ties so you might wonder where this difference comes in. In his first statement to the police he didn’t mention seeing this which may cause you some disquiet, members of the jury. We know that although his property at Sedan has been the subject of a search by police back in October 2002, it doesn’t appear that that search produced any cable tie material or handcuff material that would support this version given to you by Mr Hepi. It might be because Mr Hepi’s story about this is complete rubbish, members of the jury, but that’s a matter for you. Mr Hepi, of course, also says that Brad Murdoch says, ‘Yes, that is me in the Truck Stop’. Assess that, members of the jury, and decide what weight you would attach to anything Mr Hepi says. But you might take the view that, quite properly I’d suggest, you would not be prepared to accept anything that Mr Hepi said unless Mr Murdoch agreed with it or at least that it was supported by somebody else or something else that tended to confirm it. You might think that Mr Hepi had every reason to lie to fabricate in relation to Mr Murdoch. It is beyond question, members of the jury, that they’d had a significant falling out around Christmas. Even Mr Hepi agreed that he felt that he’d been ripped off. We know Mr Hepi was charged with a serious cannabis offence in about May 2002 or thereabouts. He believed that Brad Murdoch had set him up, dobbed him in. He saw this as something of a get out of jail card. The reward might have had something to do with it. He got a suspended sentence you’ve heard. You might think that to place any reliance upon what Mr Hepi says would be extremely dangerous in the circumstances and you would be more than entitled to take that approach. So members of the jury, where is the evidence that it was Brad Murdoch at the Truck Stop or at Barrow Creek? Well, I suppose the answer to one of those questions is, well, Joanne Lees says he was at

Barrow Creek. She says so, she identified him, she picked him out here in court. She sat there and she pointed to him and said, ‘That’s the man’. And indeed you’ve heard that she did that at the committal, pointed him out and said, ‘That’s the man’ and prior to that she picked him out on a photoboard in the United Kingdom, ‘Number 10, that’s the man’.3 2.13

Algie submits that Lees’ identification of Murdoch as her assailant is unreliable. He submits that her identification has been coloured by the fact that she first saw Murdoch’s photograph when she looked up the article on the Internet which identified Murdoch as the suspect. As the article suggested that this was her attacker, ergo she thinks this must be him. Consequently, any later identification is unreliable because of the risk that what she may be identifying is the photograph on the Internet and not an actual memory of the assailant.

MR ALGIE: Members of the jury, repeating an identification does not, you might think, make it any better. And indeed even if it appeared that Joanne Lees genuinely believes when she points to Brad Murdoch that that is the man, that doesn’t make it any better. You need to assess the reliability of identification evidence in terms of the circumstances that prevailed when it was first made, which for our purposes here was probably the photoboard in the United Kingdom. [page 40] Members of the jury, can I say this to you, that evidence of identification can be notoriously unreliable and often wrong, and that is particularly so in circumstances such as we have here, where before the identification is made the identifier, Ms Lees, had already seen the man on the Internet whom she is then called upon to identify.

2.14

This is a reference to the displacement effect. However, the photograph on the Internet shows Murdoch’s face on an angle, with a very short hair cut and clean shaven, whereas the photograph on the photoboard is from the front and he is wearing a beard and longer hair.

MR ALGIE: Now his Honour will likely give you a direction about this in far more thorough terms than I can, but the concept relates to what’s called suggestibility and displacement. When she looks at the article on the Internet, she is expecting, you might think, to read an article about the man from Barrow Creek. And members of the jury, you have the article as part of your exhibits, it’s Exhibit 148, headed ‘Falconio family relief at DNA link’. So that’s the first page of the article. And it says, ‘DNA tests linked Mr Murdoch, 44, to crime through a blood sample taken from the scene. Family have been waiting 15 months for such a breakthrough’. Now, members of the jury, you can just imagine when she’s looking at the screen, she reads the first page of the article believing now the bad guy from Barrow Creek has been found and linked to the offence. She turns over and sees in the middle of the second page the photo of Mr Murdoch. She is expecting that anybody who is identified in the article will be a photo of the person from Barrow Creek and that degree of suggestibility, members of the jury, will likely displace any actual memory that she may have of the person at Barrow Creek and replace her memory with the image of Brad Murdoch. Because she is told, as it were, in the article that this is the guy who did it and there’s a photo of him, and naturally it’s almost [a] human nature thing, you’ll believe when you see that image, that that is the image of the person who did it. So, therefore, when it subsequently is that she’s presented with the photoboard and say [is asked], ‘Is the man who did it there?’, the real risk, if not likelihood, is that what she is identifying and what she is selecting is a photo of Brad Murdoch as opposed to an image of the person from Barrow Creek.

While that remains, as I suggest it does, a very real possibility in this case, her purported identification from the photoboard is for all intents and purposes near worthless and then her identification of him in court advances the cause not one jot. So it’s of course a matter for you, but you may well find that you couldn’t fairly place any reliance on that identification. And you would be entitled I suppose too, members of the jury, to take into account whether you think that she might be a person who is open to this sort of suggestibility to this sort of displacement. You might want to test that by reference for instance to the issue of the dog because you’ll recall that initially she identifies Tex the dog from Barrow Creek, from the pub, as being similar to the one that the man had. Similar breed or similar. And then she’s given a complete Dog-a-Log, again this is in the United Kingdom and asked to flick through it and try and identify the dog. Now that’s not a bad way of doing it, you might think, it’s a bit like an untainted photoboard, you’ve got choice, and you can take your time and look through the book, there’s nothing there to suggest one dog is more likely to be it than another. [page 41] It’s got a Dalmatian there, which is you might think pretty obvious, the Dalmatian. It’s got the Australian cattle dog; it’s got lots of other dogs. She selects the Australian cattle dog, fair enough, but what happens then, you’ve heard that she was shown by the prosecution two photos of dogs, one of Tex from Barrow Creek, one of Jack the dog, a Dalmatian dog I suggest. She’s told, ‘There you go, one is the dog from Barrow Creek and the other one’s the man’s dog’, ie, the bad guy’s dog. So she says ‘Well, that’s it, that’s the dog he had’, and identifies Jack. And so you might think that she is somebody who is clearly open to suggestibility and displacement in terms of memory, because you might think that there’s an obvious example of it with respect to the

photographs of the two dogs and likely the same thing was repeated earlier when she’d seen Mr Murdoch’s image on the Internet. 2.15

The Crown suggested that a hair tie which Lees was wearing was similar in type to a hair tie found in Murdoch’s possession, as a piece of circumstantial evidence linking him to Lees. This is put forward as another instance of suggestibility.

MR ALGIE: Members of the jury, the hair tie might come into a similar category mightn’t it, I mean accepting, if you’re inclined to do so, that she had a hair tie on at Barrow Creek. She is shown a hair tie years later, I think, a long time later, and said, ‘Do you recognise this hair tie?’ And she purports to identify it, if it’s not exactly the same, ‘Similar to the hair tie I had at the time’. Now, members of the jury, is there anything unique about that hair tie or is it not a hair tie among perhaps millions of similar hair ties that are sold in Australia? It is a hair tie, there’s — the prosecution produced another bag of hair ties similar, and we don’t know how many millions are sold in Australia, or how many thousands are sold in Australia, but you’d need to be a little bit cautious in placing any weight on her evidence with respect to sameness or similarity on the like of one hair tie. Perhaps we should spend a moment on the prosecution’s experts. Members of the jury, with respect to experts — as I think I mentioned briefly in the earlier part of my address to you — they really are no better or worse than any other witness in a case. Some of them you’ll accept, some of them you’ll reject, some of them you’ll question, it’s entirely a matter for you. 2.16

Algie’s prime submission concerning the Crown experts Dr Sutisno and Dr Whitaker is to question the science underlining their evidence. He points out that although experts are entitled to offer opinion evidence, the jury does not have to accept it necessarily. He is particularly critical of Sutisno’s evidence about what she can see

and others cannot on the photographs taken from the Shell truck stop, which were of poor quality. MR ALGIE: The only difference between an expert and a normal witness is that an expert, because they profess an area of specialised knowledge or training, are permitted to express an opinion. But again members of the jury, it’s entirely a matter for you whether you accept or reject any such opinion. You might, at the end of the day be more inclined to accept an opinion if you can clearly understand and see and [page 42] appreciate how the opinion is arrived at. You might be less inclined to do so if the contrary is the case. But it’s a matter for you. Experts are frequently called in cases. Doctors are a form of expert who give evidence about medical conditions. But here we’ve heard evidence from a couple of experts in particular called by the prosecution: Dr Sutisno and Dr Whitaker with whom I will now spend some time. Doctor Sutisno puts before you her opinion that because of her expert knowledge and training she can say that Mr Murdoch and the man in the Truck Stop images, are one and the same person. She rejects the possibility that she could be wrong about that. It’s always wise, you might think, to be a little cautious with people, even experts, who can’t be wrong. And you’re entitled to bear that in mind, particularly in the light of the evidence of Prof Henneberg, who even he felt you couldn’t achieve that degree of certainty comparing a person with a CCTV image. Dr Sutisno says she can. You will, of course, have to take into account when assessing her evidence, her expertise, her opinion, her reliability, the images with which she is called upon to work. And you have the images and it may be that in your view the quality of those images, the detail and the data and information that they provide is shocking. But it’s a matter for you. Even by looking at them, members of the jury, and I’d refer in

particular to Exhibits P252 to 254,4 even by looking at them, they present as an inferior grainy image with significant bits of information missing. And I invite you when you’re deliberating on this matter to take the time and have a look at them because you might think that the concerns expressed by Prof Spring in terms of the detail simply not having been recorded in the first place and then being further lost by the copying process as it went along is demonstrated in the images themselves. But, above and beyond all of that, Dr Sutisno says that she can see these things. She says that she can see the cheekbone and she can discern its features. Well, can you, members of the jury? You’ll have the boards, you saw her demonstrate where she says these features could be seen. It’s probably a good starting point to ask yourselves, ‘Well, can I see it?’ And the pectoral muscle, she says, can be seen even though the man’s wearing a coat and she describes the pectoral muscle as being a feature that she compares [with] the image on the Truck Stop to Mr Murdoch. Well, can you see it? She says that she could see this alveoli region5 below the nose even though she describes a thick moustache. And you’ve heard what Dr Henneberg says about that. With a moustache there and the quality of the image, you could not say that. It’s a matter for you. Have a look at the images. She describes this man’s spine under a coat. It’s a matter for you. But, members of the jury, could I invite you to consider this: if you can’t see it when, according to her it can be seen, how could you be confident it’s there? How could you be confident that this mapping purportedly undertaken by Dr Sutisno is anything more than entrails gazing dressed up as science? It’s a matter for you but you might be caused some concern by her unique identifiers. [page 43]

You remember she identifies features which she says are unique, namely the receding upper alveoli region,6 which as I’ve just said and you’ve heard from Dr Henneberg, cannot be seen if there is a moustache present. Placing the hand on the hip when standing. That is a unique identifier according to Dr Sutisno. The man in the Truck Stop put his hand on his hip while he was at the counter. Mr Murdoch has been seen to do that; that is a unique identifier. Distinctive hairline pattern, she says, distinctive gait, she says. That is his arms swayed forward with the opposite step and then there’s a swaying from side to side as he walked. Well, members of the jury, it’s a matter for you; you’ve seen the video and you will have access to the video of him walking around at Berrimah with the lady prison officer. Is there anything unique about the way he walks or does he walk like the rest of us do? And how could you express any firm view, members of the jury, about the way the person in the Truck Stop is walking when we don’t actually see him walking? We see a sequence of grabs every second or every half a second, but we don’t actually see him walking so that there would be any meaningful ability to usefully compare. He’s right handed. A matter for you. But you heard the evidence on this topic from Dr Henneberg. You might be inclined to prefer his views in this particular area. You might take the view that he is highly qualified, highly experienced in anatomical comparisons. He’s the Professor of Anthropological and Comparative Anatomy, Head of the Department of Anatomical Science and you heard all of his other qualifications. He’s been doing this type of comparative anatomical assessment since 1976 where he could form an opinion one way or the other with respect to an individual’s paternity or not paternity of a given child. That’s the level of his skill in the area of anatomy and comparative anatomy. He’s given evidence in court, as you’ve heard. It’s difficult, I’d suggest, to imagine anybody more qualified in this area, more learned, more published in this area, than Prof Henneberg and what he says is, ‘Look, I had a look at it, I was interested to try but the images are simply so poor, there is so insufficient [no sufficient] information on the

Truck Stop images, that it can’t be done. The information is not there’. Now it’s a matter for you as in all of the facts in this case but it may well be that quite properly you say, ‘Well, not only can I not see it myself what Dr Sutisno purports to say, but what Prof Henneberg says it’s not even there’, and he is supported in that conclusion by Prof Spring who explains why it’s not there, because the process, the scientific process by which the image is gathered, stored, copied, etc, means that at the end of the day the definition and the information is not there. Any differences that are pointed out to Dr Sutisno, so well that’s different isn’t it, the image is different to Mr Murdoch in this respect, ‘Well, no, they’re temporary changes’. So if it’s different it’s a temporary change because for it to be different would interfere with her view, namely it’s the same man. So your Honour, a bit of a hiding to nothing with Dr Sutisno, the differences are temporary change but sameness that you can’t see proves it to be the same person. It’s a matter for you. In answer to a question at one point, Dr Sutisno said this, ‘Why I’m so concerned about this is like I can see but you may not necessarily be able to see what I can see, because my eyes are trained and yours are not’. Members of the jury, that might simply not be good enough for your purposes and you would be entitled to say so and not rely upon her. Are you really meant to accept that she can see things because her eyes are [page 44] trained and yours are not? If you can’t see it, members of the jury, if you can’t see it, there’s a very real risk isn’t there that it’s not there? And then there’s Dr Whitaker, members of the jury, another witness called by the prosecution who deals in this new type of DNA analysis called LCN about which we’ve all heard quite a bit. Now, there’s a couple of things about his evidence that you will probably need to bear

in mind in your deliberations. The first is this, although he purports to say that by virtue of his LCN analysis, Mr Murdoch’s DNA is on the handcuffs, and there’s a statistical weighting given to that in the millions, Dr Whitaker did not examine those handcuffs until May 2005, that is May this year, almost four years after Barrow Creek. Six months ago is when he examined the handcuffs and that is a separate issue to some concerns that I suggest should exist with respect to Dr Whitaker’s science. It is a separate issue that he didn’t examine them for almost four years, but I’ll be suggesting to you in due course that it is nevertheless a very important issue when you come to consider this evidence. Now, you will recall with respect to the handcuffs he was crossexamined on a number of occasions about what was suggested to be alleles present at various sites on the handcuffs that he hadn’t reported on, and he says they’re stutter. Now, members of the jury, again this is something that you’ll need to reflect on in terms of deciding whether or not you accept Dr Whitaker with respect to the handcuffs and what weight you can put on his evidence given his response to the crossexamination and the identification of what had been suggested to be alleles as stutter, because this might be very important. 2.17

There was general agreement between the experts that when DNA was amplified more than 28 times it could produce a lot more artifacts than would normally be the case. This could give a false impression when the results were analysed into images using a computer programme. This is because the process of copying very small amounts of DNA is so sensitive it can also pick up tiny amounts of foreign material in the sample, which would not happen to the same degree if copying were limited to 28 times. These artifacts are called ‘stutters’. They arise in the copying process because of some foreign matter in the sample which causes the copying process to incorrectly copy the allele in question. Whitaker explained that they were easy to recognise because the stutter was always one number lower than the true number, which would be shown next to it on the screen, and a second test is carried out

routinely to eliminate stutters. He did agree that in some circumstances it is possible for a true allele to be interpreted as a stutter. Algie was suggesting that this might mean that there was a mixed profile and that in this case the true hidden allele could have eliminated Murdoch as the donor of the sample. It was agreed by forensic biologist Carmen Eckhoff that a stutter could hide an allele, which could create a false impression. Forensic scientist Katrine Both’s evidence was that a stutter could hide a true allele, which could have the result that a person was not eliminated as being the donor, when he or she should have been. Algie once again suggests that the jury should not trust experts who tell the court that because they say so they must be right. MR ALGIE: You’ll recall the evidence of Dr Both on this topic, namely that what appears to be stutter can in fact be a true allele and this effect is significantly more pronounced with LCN work because the stutters are higher. And the importance of it is this, you [page 45] might think, if stutters are true alleles, and wrongly reported as stutter, it may well be that they indicate that there are more people contributing to the soup of DNA than Dr Whitaker would otherwise assert. You might think that the importance of that is this, if there is a third contributor — if there are say, three contributors instead of two then it becomes even more difficult to confidently assert that a complete DNA profile comes from one individual because it could be a combination of three. If there are four contributors as opposed to two or three, then the situation, you might think becomes even more uncertain and more impossible to produce any meaningful results. So the question of whether what Dr Whitaker claims are stutter, could be true alleles I suggest, is an important one for you and members of the jury, you may experience some disquiet in relation to this topic at Dr Whitaker’s response to it which was when cross-examined, ‘That is why

I’m the expert’. And later on, ‘I can assure you the interpretation is correct’. Now it’s a matter for you, members of the jury, as with all things and all witnesses, whether you’re prepared to accept that, whether you’re prepared to accept that Dr Whitaker’s the expert and that’s as far as it needs go. ‘He’s assured us that he’s right, so that’s good enough for us’. It may be, members of the jury, that you take the view that, you know, ‘Experts telling us colonials that that’s the way it is because they say it is’, is perhaps not satisfactory. Perhaps explanation as to why it was so might have been helpful. Perhaps some acknowledgment that, ‘Well, yes, although I’ve called it stutter, it could well be true alleles that are masked by a stutter’. Some acknowledgement that he could be wrong might have been more reassuring rather than a pronouncement that he is the expert and in effect therefore you should accept him. And you’re entitled to take that into account too, in determining what weight or how much acceptance you’re prepared to give to Dr Whitaker in his DNA analysis. I mean many of you, ladies and gentlemen, would be acutely aware that some 20-odd years ago up here in the Supreme Court in Darwin, experts gave evidence that it was foetal haemoglobin, foetal blood on the inside of the car that led to another conviction for murder. No doubt because they were the experts and you should believe them, but they were wrong. 2.18

This is a reference to the famous Chamberlain case, where a forensic expert gave evidence that foetal blood had been found inide the Chamberlain’s car, which was later found to be a sound deadening compound, as an illustration of the fact than experts are not infallible.

MR ALGIE: So members of the jury, don’t become overwhelmed by experts, even ones that assure you that they are experts and that they’re right. In fact they might be the ones where you really do feel the need to tread with some additional caution.

Members of the jury, before the lunch break I was talking to you about Dr Whitaker’s alleles that he identified as stutter on the handcuffs. Now the handcuff chart is Exhibit 226 and I just thought it might help you if I identify the stutters and where they appeared that Dr Whitaker referred to, in case you need to look at them when you’re deliberating. They were as follows: at D3 there was a 14, at VWA there was a 15 and 18, at D2 there was a 16, at D8 there was a 13, at D21 there was a 29.2, at D18 there was a 16 and at D19 there was a 12. So it’s a matter for you, what you make of that, members [page 46] of the jury, but I again remind you of the evidence of Dr Both with respect to true alleles sometimes being wrongly read as stutter or stutter actually hiding true alleles. Now the other piece of Dr Whitaker’s evidence was in relation, of course, to his analysis of the DNA material which was extracted from the gear stick swab and you will remember he got a partial profile with respect to that analysis and that’s shown in exhibit 227 which you will all have. Now what he did there is, he looked at the DNA profile of Peter Falconio and also of Brad Murdoch and where there were alleles that corresponded from the gear stick material that corresponded with Peter Falconio, he attributed them if you like, to Peter Falconio because Peter Falconio was presumably driving the car up toward Barrow Creek. Any other alleles that were consistent with having come from Brad Murdoch, he attributed them to having come from Brad Murdoch and they’re a total of nine and you can see these on the chart P227 with which you’ve been provided. So his evidence, with respect to that partial profile from the gear stick, you’ll recall was again, I suggest, based on an assumption. The assumption being there were only two contributors, Peter Falconio one, Brad Murdoch second. And then the statistics were calculated — and I think that’s an agreed fact — of something like one in 13,000 of the population might be expected to share the alleles that he attributed to

Brad Murdoch. Well, members of the jury, you might wonder why. Why attribute only two contributors to that, when we know that Joanne Lees had been driving the vehicle, had been in the vehicle. Wouldn’t you expect her to also be a contributor where she had alleles that could have been in that mixture, why exclude her, members of the jury? I mean even Carmen Eckhoff didn’t exclude her as a contributor when she did the very early preliminary testing of that material. It could have been consistent with having come from Ms Lees, consistent with having come from Mr Murdoch. Very, very few alleles but statistically, you might think practically meaningless but Carmen Eckhoff didn’t exclude her and commonsense, I suggest, members of the jury, wouldn’t exclude her. And you’ll be able to see this for yourself, members of the jury, by looking at exhibit 227 and the partial alleles that were recovered and then looking at Joanne Lees’ profile which is in 226 and you’ll be able to see, members of the jury, that three of the alleles attributed to Mr Murdoch could’ve come from Ms Lees. But then we have, if there might be three contributors, you might think a far less significant partial profile of only six alleles as opposed to nine. So, I invite you to give consideration to that because, members of the jury, it might ultimately mean that any weight that you can give to the gear stick partial profile is significantly reduced. And I’ll just identify for you in case you want to look at this later. It might make it a bit easier. The alleles that, I suggest, could’ve come from Ms Lees, they are at D3 a 15, at D8 a 14 and at D19 a 13. It may well be that, members of the jury, you quite properly have some serious concerns about Dr Whitaker’s science, Dr Whitaker’s LCN analysis technique, particularly in the area of criminal forensic work. And I remind you, members of the jury, the evidence of Dr Both which you might find is sound evidence upon which you can rely.7 There can be little doubt that she is a qualified witness in the area of DNA analysis. She’s worked for many years as a forensic scientist undertaking DNA analysis work. You’ve heard that she has a PhD in

the field. You’ve heard that she was a senior forensic scientist in charge of DNA analysis in the Snowtown case in Adelaide. She is hardly a lightweight in this area of forensic DNA analysis in Australia, you might think. [page 47] She’s familiar with the practices of other laboratories in Australia and she’s familiar with the practices of other laboratories around the world. I think she normally gives evidence, probably because of her employment with the Forensic Science Centre in South Australia, for the prosecution. It’s not like you might think that she’s a hired gun for the defence, but she told you about the very real concerns that she has about this form of DNA analysis. False alleles, alleles dropping out, only reporting consistency and probably prime among them all were the concerns with respect to reliability because of contamination. And wasn’t that a repeated theme that arose with respect to LCN DNA analysis? Even Dr Whitaker had to acknowledge the problems with potential low-level contamination. And you heard also from Mr Pearman who heads up the South Australian Forensic Science Centres with respect to DNA, he sees problems with it. Contamination was one of his concerns and more importantly the difficulty in interpretation.8 And it’s the issue of interpretation, of course, that I kept asking Dr Whitaker about. How can you be sure that these things you call stutter are, in fact, stutter and not a real allele? How does that affect the number of people we’ve got contributing to this soup? How can you just assume that Joanne Lees is not a contributor to this mixed DNA from the gear stick? How can you just assume that there are only two? And so, members of the jury, it may well be that you take the view when you consider all of these matters that it really is a dangerous area of science upon which to be relying in a criminal court. It’s a matter for you.

They don’t apparently do it in other laboratories in Australia, except I think Dr Both said maybe in the Northern Territory. The FBI don’t use it, it’s not generally accepted in this area. But you’ll be asked to accept it, members of the jury, and ultimately whether you do is entirely a matter for you, entirely a matter for you. 2.19

The possibility of the contamination of the samples, or of the material from which the samples were taken, was a major theme of the defence case. One embarrassment for the Crown was that the DNA of the director of the laboratory, Dr Thatcher, was found on the handcuffs. Thatcher was called to give evidence about lip balm and manacle grease, but also to explain how his DNA might have been found on the handcuffs. He conceded the possibility that he might have touched the manacles while he did not have gloves on, or that it was possible that his DNA got onto the handcuffs by secondary transfer from sneezing, dandruff, or by using a pen while he had gloves on which transferred the DNA onto the object he touched with the same gloves on. Algie suggests that there is a strong chance of contamination of the material from the handcuffs and the gearstick because of the length of time these items were held in the laboratory and the number of different people who had access to them.

[page 48] MR ALGIE: Contamination, I suggest to you, will be an area that will legitimately cause you some serious concern about this because one thing that would appear to be pretty much beyond question is that the handcuffs, and indeed the material from the gear stick, was in the LCN — sorry, my fault — was in the Darwin Forensic Science Centre from July 2001. And you know, members of the jury, that at that stage the laboratory wasn’t accredited even for normal LCN testing, because all of the functions, all of the various steps that need to be undertaken

from the sampling to the extraction of the DNA to the amplification of the DNA to the PCR and then the analysis, was all undertaken essentially in one room. You would appreciate, as I think anybody who’s been in court to hear this evidence would likely appreciate, the real problems with that, particularly when subsequently three or four years down the track this material is then sought to be analysed by Dr Whitaker using this LCN technique. The risk, I suggest, is that some form of contamination unknown has occurred intra-laboratory. There could have been some form of transfer or tainting of the extract intra-laboratory, accidental or intentional, I suppose. I mean what confidence do you have in a laboratory that ends up having its director’s DNA all over the handcuffs? I mean it’s a matter for you as all these issues are matters for you, but it’s a bit rough, you might think, that you’re asked to accept the integrity of first of all the Darwin laboratory that isn’t accredited and it’s all done in one room and then accept that some years later material is sent to the UK and tested and it’s reliable, accurate and not the product of contamination when the director’s own DNA in Darwin ends up on the handcuffs. And how might that have happened? Well, you recall Dr Thatcher’s evidence about that, members of the jury. He doesn’t think he would have touched it without gloves on because he always wears gloves. So the likely explanation is he’s breathed on it, sneezed on it, dandruff I think he mentioned can get on it. That’s how easy it is, members of the jury. So it’s a matter for you what you make of all of that but you might take the view, if you accept what Dr Both and even Mr Pearman have said, you might take the view that the risk of contamination coupled with the delay in actually having this LCN testing undertaken renders it such that you think it is dangerous to place any weight on it and it’s entirely your providence to decline to do so if you wish. The next issue of course is this. Let’s assume for a moment that you found the science and the explanations of Dr Whitaker with respect to the testing of the handcuffs compelling and that you were inclined to

accept that the sample tested from there revealed DNA consistent with having come from Mr Murdoch. That would be nowhere near the end of your inquiry, members of the jury, because the next question which would immediately then arise is this, how did it get there, because it wasn’t looked at, as you know, by Dr Whitaker until nearly four years later, almost four years. It was looked at in May 2005, six months ago; those items were retrieved in July 2001. What do we actually know about what happened to the handcuffs in the intervening period? This is what we actually know you might think, either from what we have been told or from what the records reveal. They were apparently analysed for DNA by Carmen Eckhoff shortly after their being obtained in July 2001. We know, members of the jury, that apparently Dr Thatcher had them in his possession on 17 July 2001 because he had them, he told us, for the purposes of a teleconference I think he said. We know because Dr Thatcher told us that he examined them on 30 July 2001, I think that was in respect of the pink substance from memory. Then Mr Sandry has them, he [page 49] thinks that was in about August 2001 when he had them for four or five days — and you’ll recall his evidence, he was cutting bits of tape off and looking at them and working out how they were made. I think it was at that stage he endeavoured to make copies of them. You will recall that Sergeant Kerr in a memo or an e-mail to other officers involved in the matter, had serious concerns about these handcuffs, serious concerns about how they had been handled and she explained that along the lines that she was concerned that they hadn’t been properly examined. Well, you’ll consider that, members of the jury, or you’ll consider whether the serious concerns about how they’d been handled might have been a result of concerns that they’d been improperly handled, it’s a matter for you. We know because there’s an entry in the exhibits movement log, and you’ll probably benefit by having a look at that document when you’re

deliberating, it’s exhibit 222 — we know from that that between 25 to 27 February 2002, they were again in the possession of Constable Sandry, but we don’t know why because Constable Sandry I think, couldn’t recall in his evidence, from memory. You will also recall the evidence of Dr Thatcher that on 31 July 2001, he’d received the internal memo email from Crime Commissioner Hardman where Mr Hardman said he wanted the handcuffs completely dismantled. Doctor Thatcher couldn’t say whether that was done or not. You’d have to wonder wouldn’t you if forensic officers are looking for DNA as you might think they would’ve been back in July/August 2001, whether they would’ve completely dismantled the handcuffs. If that happened, that’s a reasonable possibility that that happened, how could you place any forensic reliance of the integrity of the handcuffs almost four years later? That’s a matter for you to consider, members of the jury. Things get no better you might think, with respect to these handcuffs in October 2002 when they make what you might think is an extraordinary and unbelievable journey to Adelaide and then to Yatala in circumstances where you might think that a photo would have been more than sufficient or a set of the mock ups, more than sufficient. It is difficult you might think to understand or explain how it is that they made what I’ve suggested is an extraordinary trip to Adelaide and Yatala. It’s a matter for you if that affects your acceptance of the integrity of this forensic item. 2.20

This is a reference to the attempt to interview Murdoch while he was in remand at Yatala prison in Adelaide, despite advice from his solicitor that he did not wish to take part in an interview. The police had taken the handcuffs with them for the purpose of the interview. They claimed that the handcuffs were at all times in the original sealed paper evidence bag and were not taken out.

MR ALGIE: Then of course they spend four days, I think, five days — four days in the physical evidence section of the Adelaide Police, above

the Forensic Science Building. Now it won’t have escaped your attention, will it I suspect, members of the jury, that Officer Sandry said that he was aware that Mr Murdoch’s property was over in one set of shelves and he drew a little plan, you’ve all got a copy of that, where he’s marked the set of shelves where he says Mr Murdoch’s property was and of course he was conscious that there shouldn’t be any risk of contamination or interrelationship with [page 50] Mr Murdoch’s property. So much so that he put the bag with the handcuffs over on the desk on the other wall several metres, I think, 2 to 3 m I think his evidence was, away from Mr Murdoch’s property. It was not to be touched or moved and not to be put near Mr Murdoch’s property. That’s what he said and he drew the plan. And he did it, he put it in there because he was conscious that he was going out to search property at Swan Reach that might have belonged to Mr Murdoch and he didn’t want any risk of contamination, so that’s where he put it in there. I mean that’s, you might think, probably an honest and accurate answer. You wouldn’t want to take the handcuffs with you when you were searching Swan Reach because of course there’s an obvious risk of contamination. But members of the jury, you’d need then to consider the evidence of Sergeant MacKenzie who said that they were put underneath, in a shelf underneath, where all of Mr. Murdoch’s property was in the physical evidence section. And then, members of the jury, it transpires that Officer Sandry together with Sergeant Sheldon have got access to these handcuffs during the time they’re in Adelaide in the physical evidence section and Sergeant Sheldon has undertaken an examination of them and everybody, you might think, had sort of forgotten about that. Where does that leave you, members of the jury? Well, you would probably be inclined to have some serious concerns about what reliance you can place on any of the records in terms of satisfying

yourself that nobody could have had access to these handcuffs and contaminated them either intentionally or unintentionally. And again, in the course of your deliberations exhibit MFI 222 may provide some insight insofar as if you look at the entries on page 4 relevant to what are there described as wrist bandages, it appears that there are movements about which witnesses have given evidence of these handcuffs. Officer Sandry, you might think, is one, where he took them out for four or five days or he had access to them for four or five days in August 2001 but it doesn’t appear in the entry, it’s not there. So if we didn’t have Officer Sandry telling us that that’s what he did, these records wouldn’t tell us. Why do these records not tell us, what is the explanation for these records not telling us, because apparently if they don’t leave the biology section it’s not recorded? So if a police officer or a forensic officer goes to the biology section and gets access to the items it won’t appear in here and when Sandry examined them in August 2001 he had — he said he had them for about four or five days, it is not in these records. We do have a record in here of Officer Sandry having them for two days from 25 to 27 February 2002 but he doesn’t know what he did with them then, can’t remember. And of course in relation to the records relevant to the police property section in Adelaide, when they were down there in October 2002, you have the records, you will see that there is no record telling us who, if anybody, had access to the handcuffs during that time. We know that Sergeant Sheldon and Sandry did. We only know that because we found a note somewhere that indicated that that was so. And then Sandry remembered, Sheldon still didn’t. But it’s not in the records. You couldn’t tell from the records. So your concern may legitimately be, ‘I can’t look at these records and satisfy myself that other people couldn’t have had access. How do I know that one or the other Northern Territory Police who was in Adelaide in October 2002, like Sandry, how do I know that another police officer didn’t get access to those items, have an examination of it, interfere with it, do something to it and put it back?’ The records are

incapable of demonstrating the security and integrity of the exhibit. [page 51] And, members of the jury, you would be entitled to say, ‘Well, unless I can be satisfied of that beyond a reasonable doubt, I’m not going to rely on it. I’m not going to rely on it in situations where police from the Northern Territory have taken this item down there for reasons that I find hard to believe. I’m not going to rely on it when the records down there can’t tell me who did or who didn’t have access to this exhibit. I’m not going to rely on it when I know that police at the same time in October 2002 were out executing search warrants at Sedan on property believed to be Mr Murdoch[‘s]’. There are too many uncertainties. That’s your province. If that’s the way you see it, if you have concerns about it, if you have a doubt, you’re entitled to give the accused the benefit of it. And you might think, members of the jury, it would be difficult to imagine a case where a doubt would more readily arise about the integrity of these handcuffs. I mean, what happens to them when they come back from Adelaide? Well, we’re told, that they’re put back into the forensic science freezer or whatever it is up in Darwin. That’s what they’ve told us. That may or may not be right. You wouldn’t know. Because there’s no entry in the log. There’s a deletion in the log bearing the date 15 October — no, wrong again. The deletion in the log relates to when they were taken out which is 10 October 2002. Stat dec will be written instead of this movement if required. There was oral evidence that they were brought back by Sandry on 15 October but nothing in the log. Not booked in. It’s almost as if they’ve [they’re] suddenly disowned, unloved, soiled goods. Reasonable inference that might arise, you might think, members of the jury. We’re told that they’re there but nobody appears to be looking after them. Nobody appears to be making any record of their movements. Now again, we know because Sandry has told us that on 2 May 2004,

he again examines these handcuffs and cuts some tape from them and some more DNA testing is undertaken in May 2004 of these handcuffs. That’s when Dr Thatcher’s DNA is found on them. But there’s no record in the log of Sandry having access to those handcuffs. There’s nothing there. We only know that because he’s told us. And I suppose he had to tell us because we know that the DNA testing was undertaken so somebody had to examine them again for more DNA testing. So he’s told us that. But there’s no record in the log. What we don’t know, members of the jury, is how many other times, if at all, but how many other times Sandry might have had access to the handcuffs. Or for what purpose? What we don’t know is if anybody else could’ve gone to the Forensic Science Centre and had access or examined the handcuffs. Or for what purpose? Because unless they tell us, unless they come along here and say, ‘Yes, I have a note. That’s what I did on such and such a date’, you won’t know about it because it’s not in the log. And it’s not in the log, members of the jury, for two and a half years I’ll check that, to make sure I’m right about that — the last entry is 8 October 2002, two and a half years nothing, because the next entry relates to the central loop of wrist bandage which goes to see Dr Whitaker on 22 April 2005, so for two and a half years, although they say these items were in the Forensic Science Centre in Darwin, you have not got a clue who did or did not have access to them for what purpose under what circumstances and what, if any supervision was provided. Now then in light of all of that, the handcuffs have a trip to the United Kingdom and meet up with Dr Whitaker who says that his LCN DNA method of analysis finds DNA consistent with having come from Mr Murdoch, 1 in a 100 million. Could Mr Murdoch’s DNA have got on them accidentally, members of the jury? It’s a matter for you but I suppose it could, couldn’t it? I mean if Dr Thatcher’s DNA can get on them accidentally, why couldn’t Mr Murdoch’s get on them accidentally, particularly if somebody is

[page 52] examining them in the Forensic Science Centre in Darwin and maybe before examining the handcuffs, that somebody, whoever it might be, examined another item belonging to Mr Murdoch, and so there was a transfer, even if you’re wearing gloves perhaps as Dr Thatcher postulated, he might have picked up his pen, and there was a transfer. It’s got to be possible, doesn’t it, members of the jury, particularly when you’re dealing with such miniscule amounts of DNA, and that again was one of the critical concerns of Dr Both. Because there’s such small amounts of DNA to start with, and because if contamination occurs it will also be in a very, very small amount, and because you’re then amplifying not only the tiny little bit that was there to start with, but also the contamination that’s come to join it, and you amplify it 34 times, you’re amplifying the contamination as well and you can’t tell what’s real and what’s contaminant. It’s a part of the problem with interpretation. 2.21

Algie postulates the possibility of a police set-up. He draws upon aspects of the evidence, such as the lack of proper record-keeping and the finding of the lip balm tube some months after the discovery of the lip balm lid, to give some credence to this suggestion.

MR ALGIE: There’s another possibility I suppose, members of the jury, isn’t there. Could they have been contaminated intentionally, members of the jury? Could it be to adopt a vernacular, a set-up, a fit up? Would police do that, members of the jury, do you think that’s possible? I mean it’s a matter for you to consider this — you’ve got four years almost before they were sent to England and two and half years sitting up in Darwin unaccounted for plus the trip to Yatala, is it possible that police or somebody who had access to these items could have fitted them up? It might depend, mightn’t it, on whether the police or whoever might have done this, thought they were doing anything wrong, in the moral sense you know?

I mean, if Murdoch’s guilty, if he did it, no harm done. It’s not like police have gone into some totally innocent person’s house and planted evidence on an innocent person, that would be really bad, that would be a terrible thing to do, but if the police think that he really did it, no harm done. And it’s a question for you as in all questions of fact, members of the jury, but it has been known, hasn’t it, for police to fit people up, particularly if they really did it. I mean we’ve had Royal Commissions in this country, members of the jury, about the conduct of police in Queensland and Sydney. You’d be aware that before video interviews came into vogue it wasn’t unknown for police to verbal a suspect, that is attribute a false confession, because it’s probably nothing so wrong about that if you really think they did it. And you might think that whatever else is in dispute, the police really thought Brad Murdoch did it. Are police, do you think, to bend the rules, to fabricate a little bit, to lie a little bit, particularly if there’s no harm done? What about Libby Andrew, members of the jury, what do you make of her on this topic? Because she asserts that she had a conversation or was present for a conversation between Joanne Lees and Mr Stagg. She says that during that conversation when she was present, nothing was said by Joanne Lees to Mr Stagg about moving the handcuffs from behind her to in front of her in the back of the four-wheel drive in the canopy area. That’s why Libby Andrew gave that evidence to the conversation. She was present and [page 53] she was saying that any suggestion put to Mr Stagg that these things were said, she was present and Joanne Lees didn’t say them. She made notes, members of the jury, she produced the notes that she made when she was present at that conversation on 20 July 2001. The only problem is, you might think those notes record a conversation

that occurred two days later on 27 July 2001 at 14.46 pm. You’ve got those notes, they’re exhibit D11 or 12, but you’ve got them and you can see the initials on the back of each page and also the initials, date and time on the last page. Just a little lie perhaps. I mean no harm done, they do record a conversation that she had with Joanne Lees, it’s just not the conversation when Mr Stagg was present, you might think. And then when the date and time and the signature is pointed out, what happens then, she says ‘No, they’re some copied notes that I made up from original scrappy notes that I did take on 20 July’. So the defence calls for the production of the original scrappy notes and they’re not produced, they’re just gone. A matter for you, members of the jury. There are perhaps better examples. What about Senior Sergeant Chalker when he goes on his trip down to Yatala with the handcuffs to have an interview with Mr Murdoch or a chat with Mr Murdoch at Yatala. Knows that Mr Murdoch is represented by a lawyer, contacts the lawyer who indicates that he’ll come to Yatala to represent his client during any conversation. Mr Chalker goes ahead and has a conversation anyway. ‘I can, so I did’. No harm done of course, but hardly following the rules you mightn’t think. He knows his lawyer’s on the way. Perhaps a better example, members of the jury, again arising from this case, is the extraordinary tale of the lip balm lid, the lip balm and the black tape. Now you’ve got the photographs that were taken in July 2001 showing the lip balm in place. You can see them, you can study them, and I suggest to you that when you look at them carefully and Mr Elliott’s produced blow up ones now as well so you can see them even better, you can see that all that is present in the area depicted in those photographs under the tree is 1 x lip balm lid, that’s it.9 Now again it’s a matter for you, but I suggest it is wincingly obvious that when Officers Sandry and Spilsbury were shown that area with the lip balm lid, they would’ve searched it. It is almost embarrassing to suggest that two crime scene officers, in those circumstances, having a lip balm lid identified to them, would not have searched around there. Of course they did, but all they found was a lip balm lid, and you can

see by looking at the exhibits that all that is there is a lip balm lid. So fair enough, they seize the lip balm lid, that’s all good. Three months later a group of officers go back there — and this is October I think — yes. Three months later they go back there and there it is, right in the same place, we’ve got the lip balm now and two bits of black tape, and you can see it because they photographed it all, and you can compare the area of the two photographs, one in July, one in October. And you can see by reference to the little nodules on the roots and things that it is the same area, but it wasn’t there in July and it is there in October. Well, that’s an amazing thing you might think, what are we dealing with there?10 Well, members of the jury, there’s a couple of possibilities you might think, probably the most obvious one is that somebody, one of the police officers who went out there in [page 54] October or perhaps a police officer who went out there before October, has put them there, it’s as simple as that. But you know, no harm done, I mean what difference does it make, it’s just sort of confirming the area, it’s just a bit of a lip balm, and a bit of black tape, it’s not you know, it’s not the crime of the century, it’s just making everything fit in the picture, and after all that’s what we like, a nice neat picture if we’re investigating these things. It’s no big deal — I mean whether somebody actually went and bought the lip balm and threw the lid away and cut a couple bits of tape and put them there like that, that’s one possibility, or whether the lip balm lid and the tape were actually found out there, but a few metres away, but that didn’t quite fit the picture, so somebody has picked them up and put them where they’d rather have them be, probably is not necessary to resolve. What is important, you might think, is somebody has played around with the evidence to make it look like the lid and the tape was there when it wasn’t. No harm done.

Or is it to be as Mr Twiggs said, was suggested in re-examination, that some kangaroo came along and took away the lip balm lid for a few months and then brought it back or the wind blew it, a little zephyr of wind moved it away, another zephyr came along later and put it back. Or perhaps it was a dingo, who knows, but members of the jury, I commend it to you. I commend it to you as yet another example of police manipulating evidence to perhaps help the case, make it a little better in circumstances where there’s really no harm done. And in circumstances where you might think the attitude of the police has been Bradley Murdoch did it, it’s his DNA on the shirt, therefore it must be him, there’d be no harm done to plant a little bit of DNA on the handcuffs. It just completes the circle to make sure we have a better chance of getting a conviction. It’s a possibility, isn’t it; it would be no better or worse than verballing a suspect, no harm done, members of the jury. Is there any evidence that this has in fact happened, well, it may not surprise you if I suggest you’re never going to get it from the police. You could systematically call every police officer in the Northern Territory and ask them if they had anything to do with planting DNA on the handcuffs and every one of them will tell you, you may be reasonably confident I think — every one of them will tell you that they did not. Including the one or the ones that did. That’s nothing surprising, you might think, in the way we understand the world. But there is a bit of intriguing evidence about DNA and planting DNA, you might think, because the natural reaction when you hear this suggested — I might have suggested it to a witness somewhere along the line and you sort of sit back and say, ‘Algie, come on, are you serious about this?’, but then didn’t we hear about Mr Hepi and his intriguing endeavour to collect cigarette butts from the property at Sedan, thought to have been smoked by Mr Murdoch for the purposes of looking to get DNA. Intriguing, isn’t it. Now he says he never spoke to any police about that and he says he never gave anybody any of these cigarette butts, although they were sent to him in Broome. But again he would say that, wouldn’t he. We already have the fact that the handcuffs went to Adelaide, then went to

Yatala. We don’t know because we have no documents that are capable of proving that the handcuffs couldn’t have been interfered with, couldn’t have been contaminated, that nobody could have got access to them because the records just simply don’t exist, they stopped for two and a half years. And more particularly, members of the jury, and you might think this is important evidence, that they could have been contaminated or planted. And it’s the evidence, members of the jury, again of Bradley Murdoch who told you he had nothing to do with the handcuffs, he wasn’t at Barrow Creek. If it’s his DNA on the handcuffs, he didn’t put [page 55] it there and that’s important evidence, members of the jury. It’s evidence on oath like all the other evidence in this case and on this topic, as in relation to every other topic, I urge you not to dismiss it. 2.22

Algie deals with the circumstantial case in an endeavor to show that some of the circumstantial evidence excludes Murdoch as the perpetrator. The linchpin of this argument rests on his submission that the jury should not accept that Murdoch is the person shown in the truck stop video, or if there is a reasonable doubt, the doubt should be resolved in Murdoch’s favour, with the consequence that it cannot be the case that Murdoch is the perpetrator. The submission assumes that the truck stop video evidence is a chain in the process of reasoning which needs to be proved beyond reasonable doubt. But first Algie deals with individual pieces of evidence, to provide an innocent explanation for them. Essentially, he suggests that they are common items that many people would possess and that nothing can be drawn from them either separately or in combination. It is a ‘nought plus nought equals nought’ type of argument.

MR ALGIE: Makes for a long day, doesn’t it, members of the jury. I

wanted to now move on and deal with another area of evidence which will likely be relied on by the Crown, called circumstantial evidence. Members of the jury, it might be said to you in the course of my friend’s address before you go out to deliberate that there is important circumstantial evidence in this case upon which you may be able to rely and there are a number of circumstances in this case that may well have some importance. The man at Barrow Creek had a white fourwheel drive; Mr Murdoch had a white four-wheel drive. The man at Barrow Creek had a bull bar, Mr Murdoch had a bull bar. The man at Barrow Creek had a dog; Mr Murdoch had a dog, those sorts of things. Quite a number of them. The man at Barrow Creek had a moustache, Mr Murdoch had a moustache. The man at Barrow Creek used cable ties, Mr Murdoch used cable ties. Mr Murdoch used tape; the man at Barrow Creek had tape. Now members of the jury, that is in no way exhaustive but they’re the sorts of things that you may be referred to, items which on their own don’t necessarily prove anything but in combination they give rise to a body of evidence suggesting that Mr Murdoch is the man at Barrow Creek. That’s the way it will be put. Now there’s nothing inherently wrong with circumstantial evidence, it’s not dangerous as such and if there is enough of it, it can be reasonably strong. But your job really, if circumstantial evidence is relied on by the Crown, as it will be, is to assess that evidence, each individual piece of the evidence and determine what weight or what reliance you can fairly put on it and then to consider it in combination with other pieces of circumstantial evidence. It’s often referred to as like strands in a rope, one strand of string couldn’t really lift anything, couldn’t support a conclusion, but in combination with others you end up with a strong rope which may bear some weight. They’re the sorts of analogies you’ll hear. Another in assessing the weight you could give to an individual piece of circumstantial evidence is when you ring home, let us say, you ring home, your partner is in the habit of answering the phone if they’re at home when the phone rings. The phone isn’t answered.

[page 56] Now how much weight do you give that in concluding or inferring that your partner isn’t at home? Well, that depends upon your particular circumstance. If you live in a little unit and if you could be reasonably confident that because it’s a small unit, your partner could hear the phone from anywhere in that unit if they were there, well, you might be reasonably confident in saying, ‘My partner is not home’. If however you’ve got a big two-storey house with swimming pool and gardens and the like where your partner could be down cleaning the pool or sweeping up the leaves or whatever and therefore wouldn’t hear the phone, well, it would probably be dangerous drawing any inference in those circumstances about whether or not your partner was home. But that’s the way you’re going to have to have a look at any pieces of circumstantial evidence that may be relied upon by the Crown. You know, a white 4 × 4 in circumstances of the Northern Territory probably won’t mean much at all. I mean the evidence is, although you probably don’t need evidence, you probably know of your own experience they [there] are hundreds of thousands of them. It had a bull bar. Well, it probably doesn’t advance the cause either. So you need to look a bit carefully and a little bit critically at any items of circumstantial evidence to determine for yourself what weight can be placed on them. And members of the jury, just because a piece of circumstantial evidence tends to suggest it could be the accused, it’s also most proper and important that you look at any pieces of circumstantial evidence to see if they suggest that it wasn’t Brad Murdoch, because if there’s pieces of evidence that say no, that doesn’t match him, then that’s the sort of evidence that you might be inclined to rely on quite confidently in saying that’s not him. So, it doesn’t all go one way and indeed some pieces of evidence, circumstantial evidence upon which the Crown may seek to rely I’ll be suggesting to you before I finish, some bits of it, I’ll suggest tend to show it wasn’t him.

2.23

Mr Algie submits that the evidence that Murdoch was seen with a .22 revolver should be rejected. It was conceded that he carried a handgun with him in his vehicle but not of the type which would fit the Crown case that it was a .22 calibre weapon.

MR ALGIE: Now there are a couple of other bits of circumstantial evidence that I should deal with at this point because before you even get to the point of weighing the value of a piece of evidence or determining what weight you give it, you’ve got to first of all work out what if anything is proved about it. And the silver gun, members of the jury, you might think is a piece of evidence that will need — at least to start with — some weighing. Because you’ve heard the evidence from both Ms McPhail and also Ms Maxwell that the accused had in his possession a silver gun, a silver revolver I think Ms McPhail says. You will need to work out whether you can accept that evidence, that’s the first problem that you’ll have. Ms McPhail, she describes the silver lady’s gun that she sees in the possession of Mr Murdoch.11 Now again, this is entirely your province what you make of her evidence, [page 57] you assess her, the type of person she is, her reliability in determining what you make of that. But, you could hardly be blamed, I would suggest, if you had some serious questions about Ms McPhail’s reliability. Putting aside just for one moment the issue of alcohol and drugs that she had obviously consumed on the night in question, you might think that her story in relation to this gun is so bizarre as to be almost unbelievable. It’s a matter for you, as in all of these things, members of the jury, but she relates the progression across the Nullarbor which is apart from a matter of degree, not really in dispute and then they go to the bight12

He says there was no such conversation, nothing at all along those lines said. Well how bizarre is that, why would she say that, in the middle of nowhere for no apparent reason, no guns, no talk of guns she just says this. It almost smacks of delusional fantasy. I mean perhaps she has for some time wanted to buy a silver lady’s gun with a pearl handle, I don’t know, perhaps you do at a certain stage of life, but you’d have to have doubts about whether she ever said such a thing to Brad Murdoch, why would she? It’s a matter for you. Now then the next day off they go again toward Ceduna and he says that he last saw her at Penong,13 where she gave him her name and address or whatever and he travelled off toward Adelaide. She says she goes into Ceduna and that’s pretty obvious that she does because she withdraws $180 from Ceduna. And then she says that she travels from Ceduna towards a point where there’s a sign saying, ‘Welcome to the Iron Triangle’, shortly after which she happens upon Mr Murdoch parked off the side of the road. She stops and goes over and there he’s got the silver gun. Why? Why would he be parked on the side of the road near the Iron Triangle with a silver gun? What is the point? It’s weird, members of the jury, I suggest, but it is a matter for you, of course, but it is very, very strange — a very, very strange story. Whereas he told you quite plainly that he last saw her at Penong, he headed off and went into Adelaide. That, at least, you might think, makes sense. I mean her unbelievability, might I suggest, can perhaps also be demonstrated by her evidence of having driven from Ceduna to the Welcome to the Iron Triangle sign in an hour. Then it changed to two hours at one point. But many of you would know that road. It’s on the maps with which you’ve been provided. You can see the distance from Ceduna to Port Augusta, which is at the top of the Iron Triangle, is right across the top of the peninsular, about 460 km. So where the Welcome to the Iron Triangle sign was it has not been established, but you might be of the view that it’s a distance from Ceduna, well in excess of that which can be traversed in an hour or two.

[page 58] So what do you make of that in the light of her story about the silver gun. So you’ve got to sort that out first, because unless you were satisfied that he actually had the silver gun, it wouldn’t even be a circumstance that you could take into account. There’s no evidence that satisfied you of that fact, it wouldn’t be a circumstance for you to take into account. And you might think that Ms Maxwell really doesn’t advance the cause at all, because although she initially said there was an occasion in Sedan when she saw Mr Hepi and Mr Murdoch sitting at a table and there was a silver gun on the table, she conceded that it may well be that if she saw that, Mr Murdoch mightn’t have even been there, it might have been Mr Hepi with such a gun, not Mr Murdoch. So you would have difficulty, I would suggest, using her evidence to find it proved that he had such a gun. And it’s interesting, isn’t it, members of the jury, because Mr Hepi, for all of his faults, didn’t give any evidence about sitting at a table with a silver gun at Sedan. He didn’t mention that. Nor did Mr Johnston, interestingly, you might think. Mr Murdoch said he’d never owned such a gun. Now true, he has had — he told you about two guns that he had, the Magnum 357, a big gun, 38 Beretta which is a black gun and he had them, you might think, for obvious reasons in terms of the business that he was involved in, but they won’t assist you, members of the jury, because the only gun that would help is a gun similar to that described by Ms Lees which at least, on the evidence of Hepi, Johnston and Mr Murdoch, he didn’t have. 2.24

Algie deals with the cable ties and hair ties found in Mr Murdoch’s possession as just another common object carrying no weight as a piece of circumstantial evidence. A similar approach is adopted with respect to the Toyota.

MR ALGIE: Cable ties, members of the jury, tape. I doubt that you will be able to glean much assistance in your task from that. It is probably obvious from the evidence of Brad Murdoch that these are commonly used in his line of business as a mechanic, commonly used by people who travel around in the outback you might think. Vince Millar I noticed had [a] cable tie or cable ties in the toolbox, it’s hardly surprising, it probably doesn’t advance the cause at all. And indeed, Mr Hepi at one point said he used cable ties for everything. Tape is probably in exactly the same category, you might think many if not most people would have some rolls of tape in the toolbox if they’re travelling around. What might be the significance though of tape and cable ties is this — although Mr Murdoch had cable ties, there were cable ties at the property at Swan Reach where he used to stay with Mr Hepi and tape — there is no evidence that he had any cable ties that correspond with the size and the branding of the cable ties actually used allegedly to handcuff Ms Lees. Now that might have been significant if — because they’ve got those G codes on them about which we’ve heard and different numbered Gs and they are of a certain dimension, length and thickness and if when these search warrants were executed by the police, they had found cable ties of the same dimension with similar G coding on them and the like, that might have been a piece of circumstantial evidence that carried some weight. How much would be difficult to determine because hundreds of thousands of the things may well be sold, we don’t know. But in the absence of some similarity and if there had been any you’d be entitled to expect that you would’ve heard about it. The cable ties and the tape probably aren’t going to advance the cause. [page 59] The hair tie, members of the jury, you might find an intriguing piece of evidence. He had the hair tie that was holding together a strap. Ms Lees says it’s similar or [the] same as the hair tie she was wearing, suggested that that is in some way a trophy, I think it was put, or it

might be put. Well, members of the jury, that would all be good if (a) there was any realistic reliable means to identify one hair tie from another, and you may think that quite obviously there is not. They are a fairly bland, indistinguishable, utilitarian item used by many, many, many people and where one is essentially indistinguishable from another other than being of a different gauge and a different size. But you might think that it’s apparent that [the one] they got from Mr Murdoch appears to be able to be purchased — there is a bag of some similar tendered in the court, and again how many thousands of them are sold each year, we don’t know. But the second thing that I suggest to you, really takes away from that piece of evidence any probative value, is the fact that Mr Murdoch was a man who used hair ties and we know that because he told you and second we know that in South Australia hair ties were found on his property. Now they’re different in gauge and size from the particular hair tie that is of interest to the prosecution, but I suggest that won’t really get you anywhere. The point is he uses hair ties. So, far from it being a trophy as the prosecution might suggest, it really is another utilitarian object that he uses from time to time. Now, while I’m on the topic of hair ties, Mr Murdoch said that the hair ties produced by the police are different or not the ones he had. And some evidence was called by the prosecution in reply about that. I don’t know what you make of that, members of the jury. I don’t know how significant that will seem to you. But can I suggest this: it may well be a matter that is of no practical importance. Because it was interesting, wasn’t it, in relation to the black hair tie, there was a single black one and a single green one that were produced. In relation to the single black one, that’s depicted in a photograph, and when Officer Sandry looked at the photograph, you’ll recall he said that it appeared much thicker in the photograph than the black hair tie in real life. So, it may well be nothing more than Mr Murdoch, from the photograph perhaps, thinking that that particular hair tie was thicker that it, in reality, was which led him to think that it wasn’t his hair tie. It’s a matter for you to determine that if you think you need to if

anything turns on it. But from the point of view of the defence, the importance of the additional hair ties is the fact that he’s got hair ties and he’s got them for the purpose he described to you. 2.25

Algie provides an innocent explanation for the changes made to the Toyota.

MR ALGIE: Another piece of evidence that will likely be relied upon by the prosecution, possibly as a circumstance, is what might be described by the prosecution as the complete transformation of the four-wheel drive vehicle. Well, it’s again a matter for you to determine what you make of that. And it’s a matter for you to determine first of all whether that’s been proved. Has it been proved that there was a complete transformation of the four-wheel drive vehicle after July 2001? Or is that a difficult submission to sustain? Because it might be that you stand back and look at it in these terms: Mr Murdoch, you’ve heard from a number of sources including himself, was a man who was [page 60] habitually playing around with cars and changing things and improving things and the like. You know from a number of sources that in the year 2000, he owned a 47 series Toyota Landcruiser. It was white; it was four-wheel drive, Toyota Landcruiser, green canopy with a black bull bar. Really no dispute about that. And then late in 2000 he bought an F100. Still white. After he does some work on it, it’s got a green canopy and interestingly or perhaps ‘unsurprisingly’ it’s got a black bull bar and you see it in the photographs at 242. Black bull bar, white car, green canopy. Then he gets the subject vehicle, the 75 series. Again, white, Toyota Landcruiser. Puts the canopy on it so now it’s got a green canopy, just like the other one, and it’s got a black bull bar.

Now, after July 2001, he does work on the 75 series. But you’ve got photos of the canopy that ends up on there later on but it may well be, members of the jury, that you take the view to the casual observer or perhaps even to those who know a bit about four-wheel drives, after the work is done, you’re left with a 75 series white Toyota Landcruiser with a green canopy and a black bull bar. And indeed, even if we move on further down to South Australia in 2002 when we’ve heard Mr Murdoch got a 79 series and put the green canopy on the back of that. Are we not still left with a white four-wheel drive Toyota Landcruiser with a green canopy and a black bull bar? So if you look at it in those terms, members of the jury, and I’d commend to you those terms because they may accurately represent the situation, at all times you’ve had him driving a white four-wheel drive Toyota Landcruiser with a green canopy and a black bull bar, so what is this submission that may be made to you about a complete transformation of the vehicle? True, he put a turbo charger on the 75 series but that is hardly of significance to the casual observer or the inquiring police officer. He got a new exhaust pipe, the same could be said about that, I suppose. All the work he had done was done pretty much locally, everybody knew who he was, his name, it’s not very hard to prove, but the question for you, members of the jury, is what does it prove? Anything or just that he was a bloke who kept mucking around with his car? I mean you might have thought that if you were involved in a serious offence like Barrow Creek and you did want to make sure that you weren’t, you know, pulled over by the police because you drove a car consistent with the description of the bad guy at Barrow Creek, you would have completely changed your vehicle. As I think Mr Murdoch said in one of the phone calls from Yatala, he could have gone down to Perth and got rid of the vehicle and bought a completely different vehicle, completely different. That’s what you could have done if that’s what you wanted to do. Members of the jury, it’s a matter for you but that’s not what he did, you might think. Now the other problem with respect to any suggestion

of complete transformation of the vehicle is that you might think that that project was in place before the last trip in July 2001. Because, members of the jury, there was some evidence of that from Mr Duthie, that the plan to do up the new 75 series which he brought in March, was in place or being talked about not long after he obtained it. Mr Knox, who is the exhaust pipe fellow, recalled discussions with Mr Murdoch about the big bore exhaust some months before he actually did the work and he did the work in August you see, so that would be consistent with there being at least something of a plan to do the work beforehand. Sheriff, I think, recalled on the first trip discussions about putting a turbo in it; that is the trip back after they brought it in March. So not long after he’d brought it. And even [page 61] Somerville, who actually ordered the aluminium, had some recollection of discussions preceding it and wouldn’t that be what you’d expect from Brad Murdoch. He’s got another Toyota Landcruiser, a 75 series this time, wouldn’t you expect he’d be the sort of bloke who’d be putting in place plans to make more changes, more improvements, put in the turbo, build up the canopy, that sort of thing? It’s a matter for you, members of the jury, but just because the aluminium apparently wasn’t ordered until, I think, 27 July 2001, doesn’t mean it wasn’t talked about and planned well beforehand. Now I’ll also raise with you the evidence of Bev Allan, in relation to a conversation that she says took place after Mr Murdoch returned to Broome in July 2001, about being followed or something along those lines. Now I have to anticipate to some extent what issues the prosecution might rely upon so it may be that they make some reference to that in the course of their address. Brad Murdoch you know denies that any such conversation took place, but you would have to wonder I suppose before you decided to

rely on it or act upon it, how reliable it is when she relates that conversation. The effect of it is that he was saying that he was being followed. How does that fit with the prosecution case? There’s no suggestion that Ms Lees or Mr Falconio was following him or anybody was following in [him]. Where that comes from is difficult to discern and it’s simply— I suggest in the great scheme of things doesn’t make sense. If it doesn’t make sense you might be reluctant to rely upon it. Now members of the jury, there may be other pieces of circumstantial evidence put up by the prosecution as evidence or material upon which you might rely. In considering that I just generally ask you to first of all look at whether the issue can be proved, whether you’re satisfied about it beyond reasonable doubt, then consider what it means in terms of is it significant or does it really prove nothing as we’ve discussed in relation to white four-wheel drives and the like. And then if you think it has some part to play in your deliberations, you’ll need to consider what weight it is worthy of being given, what weight you are prepared to give it. 2.26

Algie deals with Murdoch’s evidence. In this submission, he endeavours to point to other evidence of a circumstantial nature which is supportive of Murdoch’s evidence. Algie does not have to prove that Murdoch is innocent, because he already has the presumption of innocence in his favour. It is sufficient if he can establish a reasonably possible alternative theory to the Crown case which is consistent with his innocence. Because Murdoch has given evidence, the trial judge is likely to give a direction to the jury to the effect that if Murdoch’s evidence raises a reasonable doubt in the minds of the jury, he is entitled to be acquitted. A part of Algie’s submission relates to Murdoch’s personality, interests and background, which are relied upon by Algie to evaluate the evidence which Murdoch gave to the jury.

MR ALGIE: But, could I suggest this to you, you perhaps might be uninclined to prefer circumstantial reasoning to direct evidence which tends to prove that Brad Murdoch was not in the Truck Stop and was

not more importantly at Barrow Creek. Is there such direct evidence? Well, the first and most important piece of such direct evidence is from Brad Murdoch who has given evidence here on oath before you, swearing that he was not there. Now that’s important evidence that, members of the jury, is important evidence because, just because he’s an accused person, accused of something he didn’t do, does not diminish the worth of his evidence and its potential reliability in your deliberations. [page 62] He didn’t have to give evidence, members of the jury, he chose that course and in doing so he chose to be cross-examined at some length by Mr Wild. You might want to give him some credit for that, it was perhaps a more robust course than others might have chosen, but chose it he did, and give the evidence he did before you. And he said he wasn’t there. And so he also is worthy of assessing or his evidence is worthy of assessing in terms of its likelihood, its plausibility, its believability, its sequence, its logic. One of the things you’ll need to factor into the equation when you’re undertaking that process is the type of bloke Brad Murdoch is, and the type of business he was involved in undertaking at the time. Because you can’t look at these things in isolation or in the abstract and the type of bloke Brad Murdoch is and the type of business he was involved in at the time, is really important material for you to assess all of this. Because you’ve heard him and seen him, now listened to him. You can perhaps now better understand what you might think is something of an obsessional trait in Brad Murdoch, particularly when it comes to cars, particularly when it comes to his property, particularly when it comes to just the manner in which he conducted himself on a day to day basis. Sure, a knockabout sort of a bloke, a man’s man perhaps, you might think, that’s the sort of presentation, but that peculiar fastidiousness with respect to many, many aspects of the way in which he conducted himself on a day to day basis, that’s important to know.

Members of the jury, how many times did he refer to his business and that he was running a business and it was important to be running a business? He might have been wanting to look, as he said to you, like Tommy tourist so that he didn’t attract the attention of the police, but the focus, you might think, of what he was undertaking was a business, a serious business involving a lot of money and involving a lot of risk and he was conscious, you might think, of the nature of that business and the risks that were involved in it, more than anyone. So what does he do? Goes down to Adelaide on this July trip, buys the campervan, you’ve got the receipts for that, you can see it was purchased for $4200 I think, from memory, on 9 July, registered a couple of days later. I think the documents indicate 12 July. He gets a load of cannabis, 20 pounds, members of the jury, and heads up toward Alice Springs carrying the cannabis and towing the trailer. And, members of the jury, you might think of course he’d be towing a trailer, you don’t buy a camper-trailer and not then take it with you back up to Broome. It just doesn’t really make sense. And there is no evidence, you might observe, that would suggest he wasn’t towing the camper-trailer. It’s not a situation where we have Mr Hepi or somebody saying, ‘Yes, Brad brought the camper-trailer and left it down at Sedan for a month. I know, I saw it there’. It’s not that. The natural inference that arises is he’s towing the camper-trailer up. 2.27

The point about the camper-trailer is that it is not seen on the CCTV footage at the Shell Truck Stop, nor did Lees see a trailer, but there is other circumstantial evidence, apart from Murdoch’s evidence, that supports the submission that he had the trailer with him. To counter this the Crown will have to suggest that he had unhitched the trailer and left it somewhere along the Stuart Highway — perhaps more than once. Algie refers to Murdoch’s personal habits, interest in vehicles and lifestyle to paint a picture that is supportive of what Murdoch says occurred. Crown witness Peter Jamieson claimed to have seen the trailer that weekend at his fuel stop at Fitzroy Crossing.

[page 63] MR ALGIE: Now he’s told you the sequence he takes through Port Augusta, stops at the BP. That might be important evidence, that might be important evidence, is his slightly obsessional characteristics born[e] out in a tendency to use the same petrol because it’s cleaner. Is he the sort of bloke that would be conscious of finding out, knowing, getting the cleanest petrol for his vehicle? It sounds like Brad Murdoch, doesn’t it? It sounds a bit like the Brad Murdoch we’ve come to know here in this court. It’s a matter for you but it might be important and there’s a BP at Port Augusta, he’s told you, on the right-hand side as you’re going in which he goes to get the petrol, fills up, that’ll get him to Alice. Off he goes. And you’ve heard about the trip, stopped here, had a bit of a sleep there, etc, etc. Comes into Alice Springs on Saturday morning. Now he told you why he did that too, didn’t he, and that might be important evidence. Why did he stay at Erldunda the Friday night and then come in in Alice? Because he doesn’t want to come in on a Friday night because that’s when the cops will be out with the random breathtest. He doesn’t want to be pulled over by the cops; he’s safer on a Saturday morning. That’s Brad Murdoch, that’s part of, you might think, his psyche, his way of thinking. He’s got 20 pounds of dope on board and his concern is not to come in on a Friday night but to do it on a Saturday morning. Maybe we wouldn’t be so careful, but that’s Brad Murdoch. And then he gets in about 10.30 am, time has a bit of flexibility you might think, but about 10.30, and what does he do? He goes to Red Rooster. He goes to Red Rooster because he wants the chicken roll; he wants to get the nuggets for Jack. Sounds like Brad Murdoch, doesn’t it? And then he gets a chicken. Is he going to put the chicken in the Engel to take away on the trip because we’re going up the Tanami, ladies and gentlemen, and that’s where we’re going to go? Where do we go after Red Rooster? Now I hope I haven’t got the sequence wrong, but that’s when I think we go around to Kittles,

because we’re going to wash the underneath of the car and the trailer. Why are we going to do that? You must have all been sitting there thinking why are you going to wash the underneath of the car and the trailer? Because the dust underneath the car and the trailer is limestone dust from around the Sedan area and South Australia area and it’s different to the kind of dust you’re going to get in Western Australia. And he’s conscious of that. This is something Brad Murdoch’s, you might think, somewhat fixated about, so much so that he goes and waits, he told you he had to wait to get into one of the, you know, wash bays or whatever and get out the spray thing or whatever it is and wash all of this limestone dust from underneath the four-wheel drive and underneath the trailer so he won’t create attention to himself, you might think, when he’s driving across Western Australia. Now, that may be not the trouble to which you and I might go but it’s consistent, is it not, with the Brad Murdoch that you’ve seen and heard in this court. And then from there we go around to Repco. We go to Repco — no, we go to Barbecues Galore first, I’m sorry, because he wanted to have a look at some barbecues. Didn’t buy anything there. Go to Repco. Get a few things for the car. And that might be really important, mightn’t it, because again it demonstrates something of his relationship with the car and you’ve got the documents from Repco now before you and you might find that they are a very important piece of evidence in this trial. It’s exhibit D19. And it shows you three things that are really important, you might think. One is that he bought two 20 L plastic jerry cans and you can tell from the document D19 that they are different models. One’s a D520 and the other one is a DV520. [page 64] Now, you’ll be able to compare them with exhibit D16, I think it is, but it’s the two jerry cans and you’ll be able to see the different model numbers on each. One’s the yellow one, one’s the red one. Right. And why did he want them? Because he’s got his new trailer, you might

think, and he’s going to go up to Tanami and the trailer has got those little purpose built slots, one each side, you can see them in the photographs. D4, I think, shows them, D3 certainly shows them. You can see them there. They’re purpose built, you might think, to take a 20 L plastic jerry can either side. And you could just imagine it eating away at Brad Murdoch as he drove up the Stuart Highway to Alice Springs, the fact that he didn’t have jerry cans in those purpose built spaces. He’s just that kind of guy, isn’t he? So he goes into Repco, buys two jerry cans. You might think to fill up with water and put on his camper-trailer because he’s driven the camper-trailer to Alice Springs, as you would. He is not going to buy a camper-trailer and leave it in South Australia, members of the jury. Got his protector mat on the dash. Couldn’t get a blue one or whatever but he settled for a brown one and that’s shown on the invoice. And got some other stuff. And the other important part of the exhibit, members of the jury, is the second page of the exhibit records from the computer records of Repco that very transaction because that shows, you can see the dates and the times, it shows when fuel cans — it shows when plastic fuels cans were sold 13, 14 and 15 July 2001. And it shows the two that were sold on 14 July corresponds with the invoice number that’s at the front of the exhibit and it tells you that Brad Murdoch made that transaction at 1.15.43 pm on Saturday 14 July 2001 at Repco. Okay. Then what does he do? Gets in the car, goes to fuel up. Where does he go to fuel up, members of the jury? This should not surprise you. BP. He told you that’s where he goes because it’s got the cleaner petrol. Fuels up. From there where does he go and this may be important. Matter for you. But he goes to Bi-Lo. Why does he go to Bi-Lo? Because he wants to get the iced coffee and I think he said that he got four or five ice coffees, he wants to get the yogurt, the Yakult, maybe a tomato or two, something to eat on the way because we’re going up the Tanami. We’ve got our water, which we’ve got from the BP when we got the petrol in our plastic jerry cans either side, we go to Bi-Lo, and we would

go to Bi-Lo wouldn’t we when you think about it, because we’re going to get it cheaper at Bi-Lo than we’re going to get it from the service station, and you might think that may have a part to play in Brad Murdoch’s approach to these things. So we go to Bi-Lo and it was interesting, he almost scoffed at the suggestion that he would buy one carton of iced coffee to do the Tanami, didn’t he, when it was said, ‘You were in there buying one carton of iced coffee at the Shell Truck Stop’, he almost scoffed at that. Of course he would, he’s got to drive up the Tanami, he got several cartons of iced coffee, and that’s what he said he got from Bi-Lo. And it was almost an affront when it was suggested that he was at the Shell Truck Stop buying bottled water. Now you’ve heard him, you’ve seen him, you’re able to make an assessment of the type of bloke he is and he might be a little like my old man who would find the whole concept of paying for a bottle of water to be an outrage. ‘That’s something stupid young people do, why would you pay for water?’, would be the sort of Brad Murdoch approach to these things. And it’s something for you to consider. Do you have a — does it sit comfortably with the Brad Murdoch you’ve heard and seen that he would be buying bottles of water? It’s a matter for you, it might be important; it might be a piece of evidence, circumstantial that suggests he wasn’t at the Truck Stop. [page 65] And so then he told you at around about 3 o’clock I think, give or take, he left Alice Springs, he went north about 20 km and he turned left up the Tanami, making his way across the Tanami with 20 kg of cannabis, trailer, dog, iced coffee etc, etc. And he was seen at about somewhere between 6.00 and 9.00 the following evening at Fitzroy Crossing with the vehicle, the dog, the camper-trailer. Why, members of the jury, would Brad Murdoch be going north of the Tanami turnoff with 20 kg or 20 pounds of cannabis. If he did go north of the Tanami turnoff, as the Crown case would assert, what’s happened to the

camper-trailer, members of the jury? And all of that, he was ably and at length cross-examined by Mr Wild. This is the last leg, you’ll be pleased, for today. Members of the jury, I concluded the last session by reminding you of Mr Murdoch’s evidence and perhaps two important aspects of it, namely that he told you on oath that he was not at the Shell Truck Stop at 12.30 am on 15 July and he certainly wasn’t at Barrow Creek at 8.00 or 9.00 pm on 15 July 2001, didn’t go there, it wasn’t him. Now you would be entitled, members of the jury, if you see fit, to look and ask yourselves is there any evidence, other than Mr Murdoch’s — this is not to discount Mr Murdoch’s evidence on the topic — but is there any other evidence that I’ve heard in this trial that tells me or suggests to me that he might be right about that. 2.28

Algie submits that there is a body of circumstantial evidence to suggest that the vehicle shown in the CCTV footage is not Murdoch’s. A problem from the Crown’s point of view is that the Crown had no photograph of Murdoch’s Toyota taken around 15 July 2001, and the vehicle had undergone a number of alterations to it both before and after that date. However, the Crown does have a photograph of the Toyota taken between 25 and 27 July while Murdoch was on a fishing trip with Peter Jamieson to Barred Creek, about 25 km north of Broome, Western Australia.

MR ALGIE: Take the Truck Stop for instance. Is there any evidence that it’s unlikely that it was him or his vehicle at the Truck Stop or might even suggest that it wasn’t him or his vehicle at the Truck Stop? Well, I suggest to you there are a number of such pieces of evidence and in the hope that it assists you I will take you through them. Now some will be more compelling than others, as is the nature of pieces of evidence. Some will make it unlikely that it was him as opposed to impossible; some you might think will strongly suggest that it wasn’t him, but it might be a helpful task if I undertake that as the last topic for today.

If I can complete that this afternoon, as I think I will, then I will in reality only have one topic of significance for tomorrow morning and that will be an undertaking of the same process in relation to Barrow Creek. I hope by the end of my address I’ll be able to help you by showing you that there are some significant pieces of evidence that show it wasn’t Brad Murdoch either at the Truck Stop or more particularly at Barrow Creek. So that’s where we’re going, members of the jury. One piece of evidence that may be strongly indicative that it was not him at the Truck Stop — Shell Truck Stop at around about 12.30, quarter to 1 in the morning is this, the Tanami Track and the evidence of Mr Jamieson. Mr Jamieson said he saw him at Fitzroy Crossing between 6.00 and 9.00 pm the following evening. So if he left between — well, say at around about 1.00 am from the Truck Stop — a person left at 1.00 am from [page 66] the Truck Stop, depending on what time he actually got into Fitzroy Crossing, that would leave somewhere between, let’s say, 17 to say 22 hours — sorry, that’s not right — 17 to 20 hours to complete the trip. If you get in at 6.00 and you’ve only got 17 hours to do it, if you get in at 9.00 you’ve got 20 hours to do it. Now despite the views of Mr Stanes and Mr Hall, you’ve heard the evidence again of Mr Murdoch, that he does not think you could do it in that time, and there is some support for that from other witnesses, not the least of which is Mr Cragan. Now Mr Cragan had only done the one trip with Brad Murdoch but it was up the Tanami, and Mr Cragan’s evidence on that topic was that trip, the Tanami Track took in excess of 24 hours to do. And that’s important because if that is right, then it makes it highly unlikely you might think, that it was Brad Murdoch at the Truck Stop, and in some respects you’re not really helped a great deal in resolving this by say, Sergeant Hall saying that he is intimately familiar with the track and he can drive distances on the

track within certain times and at certain speeds. Because that’s Sergeant Hall and not Brad Murdoch. That’s Sergeant Hall in a police vehicle you might think. You’re here dealing with Brad Murdoch who has a couple of significant issues with respect to vehicles and him driving vehicles that perhaps don’t apply to Sergeant Hall. One is you might think part of his meticulous obsessive nature in relation to his vehicle is such that he wouldn’t be driving at speed along the Tanami Track, he’d been too worried that he’d break something or damage his vehicle. And allied with that you might think in relation to Brad Murdoch, is the fact that he’s got 20 pounds of cannabis on board. If he does over stretch it, if he rolls the car, if he breaks an axle, what happens if the police come along? That’s the other significant feature, and on any assessment and you’ve got photographs of the track and the like, that distance on that track over either of those times, I suggest to you is highly unlikely. Secondly, members of the jury, the canopy on Brad Murdoch’s 75 Toyota series was made by Loi O’Dore from the upholsterers, the upholstery on the canopy I mean — the canvas on the canopy was made by Loi. And it’s interesting you might think but his practice and the practice of his business was that when they made a canopy they would put their logo on the back of the canopy, Tropical Upholsterers I think it was and the phone number. A little distinctive diamond pattern he described. He said the colour was white I think, or yellow or something. And that’s what you’d do if you were in that line of business wouldn’t you, because you’d make a canopy — we’ve heard some evidence to say that his canopies were the best quality available up in that area so you’d probably take some pride in your canopies, you’d probably put your logo on the canopy, advertising, done a good job, come to me if you want something done. And I think it was in answer to one of his Honour’s questions, he indicated that he would put the logo on a canopy that he made on the rear driver’s side of the canopy. Now members of the jury, if you look at the images of the vehicle in the Truck Stop, no such logo you might think is identifiable on the rear of the canopy, and that would be significant. That could be evidence which tends to suggest to you that this canopy in the Truck Stop was not

one made by Tropical Upholsterers. If it was not one made by Tropical Upholsterers, then it’s not Brad Murdoch. Now true, people postulate and is it possible that whoever made the canopy could have forgotten to put it on, well yes, I suppose anything’s possible, isn’t it, members of the jury? Anything’s possible, but with what we here have to deal, that is a piece of evidence I commend to you as perhaps suggesting that that canvas canopy was not made by Loi O’Dore. There are other indications aren’t there, members of the jury? Mr Panozzo indicated that from the video Truck Stop it appeared that the vehicle there had flared guards. None of the photographs that have been tendered of Brad Murdoch’s Toyota four-wheel [page 67] drive show it to have flared guards. Mr Panozzo agreed with that. And Brad Murdoch told you his car did not have flared guards but the one in the Truck Stop appears as if it has. Another piece of evidence that, might I suggest to you, tends to establish that that car is not Brad Murdoch’s. 2.29

John Panozzo was called by the Crown as an expert on Toyota vehicles.

MR ALGIE: Mr Murdoch also pointed out what he saw as a difference between his car and the one in the Truck Stop in terms of it having an after-market exhaust. I hadn’t picked up on that, members of the jury, but it might be something you can see because he described a difference at the end of the exhaust pipe in the Truck Stop image as demonstrating an after-market type exhaust, as opposed to his standard exhaust, which of course is shown in the photos of the 75 series before he bought it or at the time he bought it, which is Exhibit 244. So that’s another matter, depending on how you see it, that may indicate that the two vehicles are different.

The fifth matter, members of the jury, and again I have some difficulty seeing some of these things, but you may be better at it than me, but certainly Mr Panozzo indicated that he thought, as I recall his evidence, that there may have been evidence of an additional fuel tank or an additional tank on the passenger side of the vehicle in the Truck Stop, whereas we know that Mr Murdoch’s long range fuel tank was in the back of the tray, sitting up against the cabin. 2.30

An important issue is whether the canopy had steel mesh sides under it which had to be opened out before access could be obtained to the rear tray of the vehicle. Algie submitted that there was evidence from other witnesses that at the relevant time there was steel mesh under the canopy. He also submitted that Murdoch was the sort of person to insist on having steel mesh sides which could be locked for security reasons. The importance of this was that if the canopy had mesh sides and they were locked on the occasion of Lees’ attack, Lees could not have been put into the back of the Toyota simply by lift ing part of the canopy aside; he also submitted that the evidence showed that the vehicle shown in the Shell truck stop footage did not have steel mesh sides and therefore could not have been Murdoch’s vehicle.

MR ALGIE: Sixth matter which may be of importance is that the vehicle in the Truck Stop, you might think, clearly doesn’t have mesh sides or certainly not a mesh side on the driver’s side. Now you can probably appreciate that because it appears that the man goes around to the back of the vehicle and lifts up part of the canvas at the back and puts something, probably the item from the service station, in there. Whereas if there was mesh sides we would probably see it open up at the back of the vehicle, and it doesn’t. Therefore if Brad Murdoch’s vehicle, the 75 series, at the time had mesh sides, they are different vehicles. So that’s an issue you’re going to have to resolve because there’s a bit of a conflict about that. On the one hand you’ve heard evidence from Cragan. Cragan confirmed that when he did the trip with him down the Tanami he had

mesh sides and a mesh back of the vehicle. And he even told you why he had it. On the one hand security for the gear in [page 68] the back of the tray, probably obviously. On the other hand, to keep Jack the dog in; perhaps equally obvious. Brett Duthie also gave evidence about the mesh on the back of the tray. Mr. Sadler, who worked with Brad Murdoch at West Kimberley Diesel, also gave some evidence about it. Brad Murdoch, very importantly, gave evidence about it and said that he had the mesh on the canopy, both sides and the back, steel plate at the top, steel plate at the front and that the mesh was secured by the drop sides, sides and back and then you could drop the canvas down over it. And again, he told you why and the answer, you might think, is obvious. It’s the only means whereby he can secure what is in the back of the tray. If there are no mesh sides anybody could come along and open up the tarp and get access to what’s in the back of the tray, that’s obvious. Again, sometimes for a jury to be able to resolve these conflicts, you need to draw upon your 4 or 500 years of collective life experience and your knowledge and understanding of the type of man Brad Murdoch was and is. Do you really think Brad Murdoch would be driving around without mesh sides, without a means whereby he can secure all of that property that you might think he quite obviously habitually carries around with him? Do you think he wouldn’t have a means whereby he could lock his property, particularly bearing in mind somewhere in there under the fuel tank there’s 20 pounds of dope going one way and somewhere in there going the other way, there were large quantities of money? Is Brad Murdoch that kind of guy? I suggest to you not. He would be beside himself with worry or concern about the security of his property if he can’t secure it. And there was a telling bit of evidence in the course of what he told you about how he has the padlocks so that if he

actually leaves it for any length of time in a carpark or parked in the street or whatever, he can then put the padlocks in and lock in some fashion the drop sides so that it can’t be accessed at all. But again, unless you’ve got the mesh in, that undertaking, I suggest, would be pointless. He had the mesh in the 47, it’s clear he had the mesh in the F100 because you have photographs of it, members of the jury, you can see it, you can see the way it operates, it’s there. He’s told you that when he gets the 75 series he puts the canopy with the mesh in the 75. Of course he would. Of course he would. Even driving across those distances and those roads, you would want the mesh there to protect your property from the inside. Make sure the dog doesn’t jump out. Make sure people can’t get access to it. I suggest to you with Brad Murdoch, it’s, I would suggest, near impossible to comprehend him not having mesh on the sides and back. He’s just not that way wired. And we know that as soon as he builds the new canopy in July August 2001, of course it’s got mesh on the sides. Now, it may be said to you, ‘Well, members of the jury, there’s no mesh on the sides when he went to the fishing trip’. And that’s an important issue for you to consider, obviously. But consider the timing of the fishing trip. The evidence was, I think from Mr Jamieson or his father-in-law, the fishing trip was on 25, 26 and 27 July 2001. What do we know about what was going on around about then? One thing we know is that there is an invoice dated 27 July 2001 in relation to a whole lot of aluminium that had been ordered or supplied to Mr Somerville to do the work doing up Brad’s car. That’s dated 27 July 2001. The last day of the fishing trip. What else do we know about the appearance of Brad’s 75 series Toyota Landcruiser when it’s at the fishing trip? Doesn’t have the mesh, doesn’t have the long-range fuel tank either. And … at least to my eye. [page 69] It’s a matter for you what you see, much of the gear that he’s told

you he would normally have in the back there has also been removed. And he’s explained to you why that was, because he was getting it ready to have the work done extending the tray and building up the new canopy. So you might think although an argument suggesting, well, he’s hasn’t got the mesh at the fishing trip might be superficially attractive at first glance in the circumstance of the proposed work that he’s going to have done and of the fact that the invoice is dated 27 July in relation to the provision of the aluminium, his explanation is probably right. But it’s a matter for you. Members of the jury, there’s a couple of other pieces of evidence which might be important in suggesting that it’s not Brad Murdoch’s vehicle in the Truck Stop and it’s this. You remember there was some evidence that the 75 series had a shorter tray than a standard 75 series. Do you remember that? It was about a couple of 100 mm shorter because it was an ex-Telecom vehicle and indeed part of the improvements to the 75 series was to extend the tray I think by a couple of hundred millimetres or there abouts. Part of the reason the new canopy was built was because it was going to be a longer canopy, you remember that. And you remember that Mr Ringrose undertook some calculations from the still photo in the Shell Truck Stop in relation to the canopy. Now, since then, I think Officer Sandry has actually measured the dimensions of the old canopy, because the old canopy appears in the photographs. He’s measured it, so we know what its height, width and length is, and you have that information as part of your copy exhibits, measurements of the canopy frame is exhibit 199, which you’ve got. 2.31

David Ringrose was called by the Crown as an expert in processing and enhancing recorded images for forensic purposes. His evidence related to measuring the canopy of the vehicle from the CCTV footage. The purpose of this submission was to show that the evidence suggested that the canopy shown on the CCTV footage was not long enough for Murdoch’s vehicle.

MR ALGIE: Now what you might find of interest is this. He measures the canopy frame to have a length of 2.14 m, it has a width of 1.82 m and it has a height of 1.05 m. Now Mr Ringrose undertakes his calculation from the image in the Shell Truck Stop, working backwards he calculates a height of the canopy frame of .0965 m, plus or minus 5% which is in accordance with the height measured by Mr Sandry you might think. Mr Ringrose calculates the width of the canopy to be 1.1811 m, plus or minus 5% which, without the plus or minus, is almost exactly the same as the width measured by Cnst Sandry. And here, members of the jury, I suggest is the important one. He — Mr Ringrose calculates the length of the canopy of the vehicle in the Truck Stop to be 2.355 m which on my calculations members of the jury, is about .215, .215 m longer than the length of the canopy measured by Cnst Sandry. So about 215 mm longer than the length of the canopy being used by Mr Murdoch at the time, 200 mm and even if you allow for a plus, minus of 5%, the canopy being used on the back of the 75 series by Mr Murdoch at the time, is still too small, too short in length to fit within the parameters of the Ringrose calculations. That you might find, members of the jury, is important, cogent and directly relevant evidence that shows by measurement and calculation that the two canopies are different insofar as Mr Murdoch’s canopy is about 200 mm shorter than the canopy in the Truck Stop. [page 70] Members of the jury, when you are reviewing this issue in the jury room or in the course of your deliberations, it may assist you if you also have reference to exhibit 196. Exhibit 196 is measurements that were undertaken, I think also by Mr Sandry, I’m not sure, but measurements that were undertaken of various aspects of the new canopy that was put on the 75 series. That is the new canopy after the tray was lengthened by about 200 mm. And the importance of exhibit 196 is it shows that the length of the rear tray from the inside edge of the new canopy was measured to be 2.35 m. The length of the rear tray from the outside

edge was 2.43 m. And this may be of particular importance; the length of the extension for the tray was .222 m, 222 mm. MR ALGIE: Good morning ladies and gentlemen. Just concluding some points that I was making to you yesterday, members of the jury, about pieces of evidence which I suggest might demonstrate to you or tend to prove that the vehicle in the Truck Stop was not Brad Murdoch’s. 2.32

Algie makes an issue about the bull bar shown on the vehicle on the CCTV footage and how it differed from Murdoch’s bull bar as described in other evidence.

MR ALGIE: The next point is this, members of the jury, you have the photographs, exhibit P244, of the 75 series Landcruiser, that’s the one he bought in March and that’s the one he had, you’ve heard in July when he did the trip. And you can see quite clearly, members of the jury, I suggest the bull bar that was on the vehicle when he bought it. When you’re deliberating on this you’ll be able to look at the images from the Truck Stop of the vehicle and you can probably see fairly readily that the bull bar on the vehicle in the Truck Stop is quite different from the bull bar that was on the 75 series when he bought it as shown in exhibit 244. Now the Crown case is that before July 2001, when the image in the Truck Stop was taken, a new bull bar was put on it by Mr Minshull, that is similar to the one in the Truck Stop because if that didn’t happen they’re different, they’re not the same, because — as you’ll be able to see quite clearly, the bull bar in 244 is quite different from the one in the Truck Stop. But, members of the jury, you might think that the evidence, and in particular not just the evidence of Brad Murdoch, namely that he put the new bull bar on after July 2001 when he was doing the other work on his vehicle but you might think that evidence of Mr Minshull, the man from whom the new four-poster bull bar was bought establishes that as well, and this could be a very important point so I’ll just take the time if I might, members of the jury, to read you the cross-examination

of Mr Minshull on this topic. It’s at p 1630 of the transcript if your Honour pleases. HIS HONOUR: Thank you. MR ALGIE: Mr Minshull, when Brad Murdoch came to see you about buying the new bull bar you said you saw a long range fuel tank in the back of the canopy? — Yes. Was there anything else in the back of the canopy, or just the fuel tank? — Just one big tank. [page 71] And the canopy was open for you to be able to see in there obviously? — When I — last time I was in his vehicle — had no — had no sides on it, it just had a wooden roof, there was no canvas sides on it at all, it was just a wooden roof, shelter for his dog. And so when you last saw it, when he came about the bull bar, it had no canvas sides on it? — That’s correct. Did it have mesh sides on it? — No, nothing. So it was essentially open and you could see the fuel tank was still there, but nothing else, just a fuel tank and carpet on the floor. The bull bar that you sold him is a … obviously a bigger, stronger sort of bull bar? — Yes. Industrial strength bull bar? — It’s a real bull bar, it’s designed to hit animals and last, where the other bull bars are quite think,14 very light, when you hit a beast, then normally that’s it, that’s the end of them. Would this have been in around July 2001, when Brad Murdoch came to see you about buying this bull bar? — Yeah it would’ve been around that time.

This might be important members of the jury. His appearance when he came to see you about buying the bull bar, did he have any facial hair? — Yeah, I think he had his moustache, yeah he normally has — no, sorry. I think no, I think when he bought the bull bar off me, I remember that he had clean shaven, yes sorry. Because he often had a moustache and sometimes a bit of a beard, but when he bought the bull bar, you recall he was clean shaven? — Yes. Would it have been late in July 2001, that he bought the bull bar? — It could be, I can’t be exact on the dates, because I didn’t make any record of it, and at the time of the year, it’s our tourist season and we’re really busy. Do you remember when there was this publicity about Peter Falconio, the English tourist that went missing near Barrow Creek, do you remember all the publicity back then? — A little bit, I don’t watch much television, I’m most of the time working. When I get home there’s no news on, it’s all over. Yes, but you heard about it, didn’t you? — Yeah, I did hear about it. I did hear about and I do vaguely remember it, yes. Is it the case that Brad Murdoch came in and bought the bull bar from you after you’d heard about the English tourist going missing at Barrow Creek? — I think so. Really I can’t be honest, I can’t tell you the truth because I don’t know whether it was after or before but I know it was mid-year, yep, and I know it was around the race — around when — yep. [page 72] You’ve given a statement to the police about this, haven’t you? — Yes. And I think you gave the statement to the police when you drew

the diagrams that have been tendered and that was on 14 December 2002? — Yes. That’s almost three years ago? — Yeah. So your memory of events would have been better then than it is now, wouldn’t it? — Yeah, well definitely, you’re talking four years ago now, aren’t we. Almost three? — Three years ago, yeah, okay. When you spoke to the police about this back in December 2002 did you say this, ‘Murdoch purchased a bull bar not long after the missing pom in the Northern Territory. When Murdoch came into my shop he was clean shaven. He looked a bit unusual as I had always seen him wearing a moustache’? — Yeah, that sounds familiar, yep. That would be right, wouldn’t it? — I’d say so. And that helps you remember that it was after the publicity about the English tourist going missing that Brad Murdoch came in and bought the bull bar? — Yeah, it would have been. Members of the jury, you might properly take the view that Mr Minshull is probably right. And you might take the view that he’s almost certainly right when he gave the statement back in December 2002 and said in effect: ‘I remember the publicity about the missing tourist and it was after that that Brad Murdoch came in and bought this bull bar and I remember that when he came in and bought the bull bar he was clean shaven’. And so, members of the jury, do you not now have a very significant piece of evidence upon which I suggest you can probably rely that proves the vehicle in the Truck Stop is not Brad Murdoch’s, because it’s not the same bull bar, members of the jury. The other important piece of evidence that supports that as well, you might think, it’s a matter for you, you might think, is that when Brad Murdoch goes to get the new bull bar, there’s nothing in the canopy other than the fuel tank. By that stage the mesh has been taken off, all the gear has apparently been taken out and isn’t that entirely consistent

with what Brad Murdoch was doing after the trip in July 2001 in extending the tray and making plans and arrangements to rebuild the whole canopy? Members of the jury, the vehicle in the Truck Stop, you might think, is clearly not Brad Murdoch’s because it doesn’t have the right bull bar on it. It’s a matter for you. 2.33

Algie refers to other evidence casting doubt on whether the vehicle in the CCTV footage was Murdoch’s, particularly the absence of the camper-trailer.

MR ALGIE: A couple of other little pieces of evidence that might suggest it’s not Brad Murdoch in the Shell Truck Stop. One is Ms Southerden, you’ll remember her, she worked in the Truck Stop that night, and she went out to have a look at the vehicle to check the number plate, you’ll remember. It’s just a little piece of evidence, members [page 73] of the jury, but when she spoke to the police about it, a couple of months later, I think, a few months later, she’d recalled she thought that the vehicle had 333 in the number plate. Now she could be mistaken, she could have, you know, invented it, I suppose, but at the time it was significantly important enough for her to go to the police and tell them about it. If the vehicle had a 333 in the number plate you might think it’s not Mr Murdoch. Now of course although she gave that statement to the police, when she comes here and gives evidence she kind of, you might have thought, tries to remove herself a bit from that, she’s not sure and she’d seen lots of number plates and the like. It might be another example of a witness, for whatever reason, trying to remove themselves from an earlier statement but it’s a piece of evidence, members of the jury, for you to consider.

And the next point, members of the jury, and it’s probably fairly obvious, there’s no camper-trailer. The vehicle in the Shell Truck Stop is not towing a camper-trailer. It’s a matter for you, members of the jury, but you may have a little difficulty accepting that Brad Murdoch was towing the camper-trailer with the little 20 L drums either side. The vehicle in the Truck-Stop is not carrying a camper-trailer. Now, I don’t know what the prosecution will say about that. It might be suggested to you, ‘Oh well, if Brad Murdoch was towing the camper-trailer all the way from Adelaide, Sedan, up to Alice Springs and because we really want Brad Murdoch to be the bad guy at Barrow Creek and in the Truck Stop, well he must’ve taken the camper-trailer off and left it somewhere’. You’ll consider that, members of the jury. And that’s another point you can consider in the light of your assessment of Brad Murdoch and his cars and his property and his camper-trailer and you will, no doubt, ask yourself, ‘Do I really countenance a suggestion that somebody like Brad Murdoch would’ve left his camper-trailer somewhere, just unhooked it and just left it, what, on the side of the road, on the side of the Stuart Highway or just left it there’. For hours, presumably. I suppose he had to leave it somewhere, you know, I suppose in Alice Springs perhaps, did he, is that what happened, or up the Stuart Highway a bit. Just left it there. Because the man at Barrow Creek didn’t have one. The man in the Shell Truck Stop doesn’t have one. You might think Brad Murdoch had one and you might think any suggestion that Brad Murdoch would leave his camper-trailer just sitting somewhere is almost impossible to accept. It’s a matter for you though; it’s a matter for you. And you might wonder if somebody had left a camper-trailer just parked on the side of the road for hours, unhooked it from a white Toyota Landcruiser with a green canopy and then drove off and then come back hours later and hooked up the camper-trailer to a white Toyota Landcruiser with a green canopy, you might think that given all of this Barrow Creek publicity, there’d be some evidence about that. You might think somebody might’ve seen that. That, ‘I noticed,

actually, I noticed because I went out of my house and I saw that there was this camper-trailer parked there. It hasn’t been parked there before and I thought that’s very unusual and I watched that. I might’ve written down the number and then I saw a white Toyota Landcruiser come and pick it up and drive away and I thought this is very strange’. Members of the jury, Brad Murdoch had a camper-trailer, you might find. The man in the Truck Stop does not because it’s not Brad Murdoch. The man at Barrow Creek did not because it’s not Brad Murdoch. A couple of other points, members of the jury, before I move from the Truck Stop to Barrow Creek and it relates to the man in the shop at the Truck Stop. And these are [page 74] pieces of evidence which may assist you in resolving or coming to the conclusion that it’s not Brad Murdoch. 2.34

Algie submits that there is other circumstantial evidence which suggests that the man in the CCTV footage is not Murdoch. He refers to the evidence given by the expert David Ringrose about the height of the man in the truck stop video and the fact that he was considerably shorter than Murdoch.

MR ALGIE: The first is Mr Ringrose. He’s the guy who did the calculated measurements of the person in the shop. Now again, he’s working as we know from the images which are not the best but doing the job that he did, in relation to the second image in the shop, he’s15 mean average height was 190.3 cm which you’ll appreciate is almost 5.7 cm shorter than Brad Murdoch. Now, obviously, members of the jury, there will be some reluctance on your part, understandably, to act too much on that because the image obtained from the CCTV is of such poor quality. And indeed, Mr

Ringrose factors in a plus or minus 5% in relation to his calculations. 3%, I think. Plus or minus 3%. So, if it’s plus 3%, you can get it up to 196 or thereabouts. If it’s minus 3% then it’s lower again than the 190 cm mean average. The importance of that piece of evidence though for you, in relation to the second image, might be this. The measurement of height relies upon the computer calculation of the Z access. The Z access is the one that goes up and down that measures height. You may remember that Mr Ringrose incorporated into the process three controls on the Z access, that is three measurements where he knew what the height was, because they’d actually been measured and what he was able to tell you in relation to the second measurement, of the measurement of the second image is that on each of the controls the program overestimated the heights of the controls. So if the control was a metre in height, then the estimate by the computer program was greater than a metre, overestimated it on each of the three. So members of the jury, the importance of the evidence to you and it’s your assessment of it that is important, might be that the process undertaken by Mr Ringrose measures the man at 190.3 cm, and if there is any error in that process it’s likely to be an overestimate. So, the man might be 190.3 cm or less and again I commend that to you as evidence that demonstrates that it’s inconsistent and unlikely to be Mr Murdoch. I suppose there might be some support for what’s been suggested to you from the evidence of Mr Head who worked in the store that night. Do you remember his evidence; he was the bloke behind the counter. He recalls serving a man and indeed Mr Head was 175 cm in height, he told you members of the jury, and this might be important evidence perhaps. He told you that he thought the man in the service station was 175 cm in height, about the same height as him, not Mr Murdoch. And it’s a funny thing isn’t it, members of the jury I mean you might think we generally know how high we are, we know if we’re 5′10″ or 6′2″ or whatever it might be and when we estimate the height of another, we use ourselves as a reference because we’re pretty readily able to say, ‘Well, the person’s taller than me’ or ‘He’s shorter than

me’ or ‘He’s the same height as me’. And you might think that was the process through which [page 75] Mr Head went when he was serving the fellow in the service station, namely, ‘He’s about the same height as me, 175 cm’, and you might think that there’s a certain degree of reliability about that. The other thing Mr Head said, members of the jury, is that the man in the service station was of thin or slim build. Not Mr Murdoch. And finally on the topic of the man in the service station, you’ll recall the evidence of Professor Henneberg where although he couldn’t be certain because of the poor quality of the material, he perceived a difference bodily between Mr Murdoch and the man in the service station by a comparative process of the size of the head and shoulders and that. It’s a matter for you, members of the jury. 2.35

Algie refers the jury to a number of pieces of circumstantial evidence relating to the events at Barrow Creek, which he submits are inconsistent with proof that Murdoch was the perpetrator. He also points to what he describes as the shift ing sands of the Crown case; in particular, that every time a piece of evidence came to light which did not fit the Crown case, the Crown made adjustments to its theory to make the evidence fit the theory.

MR ALGIE: The topic upon which I wish to conclude then is Barrow Creek because that really is the most important area for your consideration, I mean it’s what did or didn’t happen at Barrow Creek that this is all about, and whether Mr Murdoch had anything to do with it, or whether it’s been proved beyond a reasonable doubt. Is there any evidence, members of the jury, that will help you in determining that Brad Murdoch had nothing to do with Barrow Creek? Well, members of the jury, you might think that the first piece of

evidence, and a very important piece of evidence, is the vehicle at Barrow Creek which you might think on the evidence of Ms Lees, had front to rear access, cabin to tray access. Gets in the vehicle and she’s pushed between the front seats into the back canopy. Now if that happened, members of the jury, you’ll probably have little difficulty concluding that it could not possibly have been Brad Murdoch’s vehicle. But of course you might think that there’s been again some movement on that. And you’ll remember — perhaps I’ll remind you, if I can find the passage. You’ll remember at p 197 I asked her: Now the next thing that happens is you are pushed by the man from the cabin of the four-wheel drive between the seats into the ute or the back area. His Honour intervened and said: ‘Mr Algie, are you putting that as a proposition or as this witness’s evidence? Which way are you putting that?’ And I said: ‘I can’t put it as a proposition, I’m asking her if that’s the next thing that happened.’ His Honour: ‘You’re asking her whether in fact that is what happened?’ Answer: ‘Yes.’ And then his Honour asks Ms Lees the question for me: All right. You’re being asked whether in fact the next thing that happened was that you were pushed between the seats into the [page 76] rear? —That’s what I believed at the time, how I got — was forcibly put into the rear of his vehicle. So all I can say is the next thing that happened was he forcibly put me into the rear of his vehicle.

I’m not going to read to you all of the cross-examination that then followed about earlier statements that she had made to the police about going into the rear canopy area between the two seats from the cabin, but you’ll remember that, members of the jury. You’ll remember that there were a number of statements where that is the scenario that she told the police about, that was the picture she painted. Now in this court you’ll recall there is what you might think, some movement back, some uncertainty about that. And you’re entitled to question that. You’re entitled to say ‘Why? Why is this?’ The answer to you may be quite obvious because if it was a circumstance of front to rear access, it wasn’t Brad Murdoch. Members of the jury, it might also be worthwhile reflecting on the same topic on the evidence of Ms Rowe, because she told you that in early 2003, 18 months after she became involved in the investigation, they still had something in the order of 800 to 1000 persons of interest remaining on their books. So they had to eliminate people. One way they eliminated them was their DNA didn’t match the DNA on Ms Lees’ T-shirt. I spoke to you about that yesterday and I talked to you about the assumption that underlay that. But they also had criteria for eliminating people. The criteria for eliminating people were: (1) Caucasian male; (2) aged between 40 and 45; (3) medium build; (4) over 6 foot. So you had to sort of generally fit into there or else you could be eliminated. With respect to the vehicle, members of the jury, the criteria, you may recall, is this: ‘91 to ‘99 white Toyota diesel Landcruiser; (2) chrome or silver bull bar; (3) beige or khaki canvas canopy and finally front to rear access. That’s the vehicle that they were looking for you might think, on the basis of the descriptions given to them by Ms Lees. Brad Murdoch and Brad Murdoch’s vehicle, you might think never had front to rear access. Brad Murdoch and Brad Murdoch’s vehicle you might think never had a chrome or silver bull bar, and indeed you can track his various vehicles, which has been done quite painstakingly in this trial and none of them, you might think have a chrome or silver bull bar. And Brad Murdoch’s vehicle, members of the jury, on the

evidence we’ve heard here, never had a beige or khaki canopy. It’s concerning, you might think, if you do think that there has been movement away from the initial description of the man at Barrow Creek. The Crown case now concedes or conceptualises the notion that this vehicle didn’t have front to rear access, because otherwise Brad Murdoch can’t be fitted into it. It now conceptualises that it may not have been a chrome or silver bull bar, it might have just been the lights, you’ll remember Ms Lees’ evidence about that, because otherwise it can’t be Brad Murdoch. Canopy is kind of green now, because Brad Murdoch’s got a green canopy. Now members of the jury, I invite you to view that with some cynicism. Is it good enough when you’re called to deliberate on a man for murder to accept the shifting sands of the description of the man’s vehicle, because if it’s a chrome bull bar, it’s not Brad Murdoch. If it’s a silver bull bar it’s not Brad Murdoch, if it’s got front to rear access, it’s not Brad Murdoch. How can you countenance a description, a changed description given four years later as opposed to the descriptions given at the time and shortly thereafter? My client’s on trial for murder. Members of the jury, it’s not just a description on paper either, it’s not just words. The police quite properly took the time and took the trouble to have drawings done of this [page 77] vehicle, as you would to try and get an image, a reliable image diagrammatically of the man at Barrow Creek’s vehicle and you’ve got those images as exhibits, you’ve got copies of them, exhibit P30. I mean members of the jury, it’s a matter for you but you might think, and I would invite you to think, that the drawing of the man’s vehicle at Barrow Creek does not resemble — is not even similar to Brad Murdoch’s. I mean the canopy, the canopy is sort of rounded, it’s pentagonal or something like that. It’s not a square canvas canopy like Brad Murdoch’s, it’s different.

Now of course four years down the track, when my client’s on trial for murder, we hear that, ‘I didn’t really see the canopy, I didn’t you know, I didn’t really see it, I mean I can’t be sure, so I can’t be sure anymore’. So that’s okay, you can still find Brad Murdoch guilty of murder even though his canopy is different from the guy at Barrow Creek. Well, members of the jury, is that good enough for your purposes, that figure? Take the time to flip through these drawings. I’m sure you already have. Look at the little descriptions that are there, ‘no tow bar’. No tow bar, isn’t that interesting. This is on drawing 371, no tow bar. We know Brad Murdoch had a tow bar because he’s towing the camper-trailer — no tow bar. ‘Well, I just said — that just means I didn’t actually see a towbar so I just said “no tow bar” because I didn’t see one’. There’s probably one there because we want you to find Brad Murdoch guilty of murder and we know he’s got a tow bar, so it’s no good saying there’s no tow bar. No tail gate. Well, it’s not that there was no tail gate, it’s just that, you know, ‘When I jumped out I didn’t notice a tail gate because’ — but anyway, there probably was a tail gate. ‘Brad Murdoch’s got a tail gate and we want you to find him guilty of murder’. Fire extinguisher we’ve got. The man at Barrow Creek had a fire extinguisher in the cabin of the passenger’s seat. Not Brad Murdoch, members of the jury. Detailed diagram in document 378 of the interior of the vehicle and the chunky steering wheel, members of the jury, quite a chunky steering wheel. ‘Well, I didn’t really describe it as a chunky steering wheel, I mean that’s just a steering wheel that was drawn, that doesn’t really mean anything’, because if it’s a steering wheel like that, members of the jury, it’s not Brad Murdoch and we want you to find Brad Murdoch guilty of murder. So the steering wheel can’t mean anything. Why did they draw the steering wheel? Have a look at it when you — why go to all the trouble of drawing the steering wheel unless you’re showing something? ‘We didn’t put anything in those drawings’, says Mr Stagg, ‘We didn’t put anything in those drawings unless she was sure’.

Have a look when you are deliberating at image 380. Image 380 is a good one because it’s one of the earlier drawings of the canopy, of the tray that shows the curved canopy, it shows what you might think is the little length of rope by which the side is secured. It’s not Brad Murdoch. Image 381 is worth a look. Again, one of the earlier drawings. Single square lights at the front. Even the detail of the headlights at the front, single square lights. He’s got a Toyota Landcruiser, it has round lights, it’s not Brad Murdoch, members of the jury. And of course the front to rear access is also noted and drawn by Mr Stagg. Now whatever has happened to Mr Stagg in recent times in terms of his recollection of conversations and what was or wasn’t said. You might think, using your collective experience of the world, that he’s the type of bloke who would have been desperate to try and get those drawings as absolutely right as he could. He was just that kind of [page 78] fellow, wasn’t he? You know, this would have been a very important task for him. He’d been asked by the police as an art teacher to come down there and sit with Joanne Lees and do these drawings and get them as right as he could, because they’re going to go into the paper and people are going to use these to try and find the bad guy. So when he’s drawing rounded canopies and when he’s drawing square lights and whenever he — you might think — whenever he’s drawing anything, it’s going to be as right as it can be and it’s going to be on the basis of what was described to him by her. Members of the jury, for your purposes, those images and the descriptions from Joanne Lees upon which they are based, are likely to be the very, very best and most reliable evidence that you’ve actually got of the vehicle driven by this man, if you find there was a man, at Barrow Creek. And every time one of those descriptions or one of those

images does not match Brad Murdoch, that is cogent and important evidence that you are entitled to use as you see fit, to say, ‘Well, I’m not satisfied that it was actually Brad Murdoch who was there’. You can do exactly the same thing, members of the jury, with the dog. The man at Barrow Creek, if there was a man at Barrow Creek, apparently had a dog. It was similar to Tex the dog, from the Barrow Creek pub. Got your photo of Tex. And then there was a proper identification of the dog from the Dog-a-Log in the United Kingdom and they picked out the Australian cattle dog/blue heeler’ similar, you might think, to Tex. So, the man we’re looking for has a dog similar to that. Brad Murdoch has a Dalmatian. You’ve got the exhibit, there’s a number of photos of — there’s a single photo and then there’s a defence exhibit showing a number of photos of that dog. You can sort of duck and weave as much as you like and you can say, ‘Oh, well, there might be a bit of kelpie there or a bit of cattle dog or a bit of something else’, but to the casual observer to anybody who looked at those photos, flipped through, I suggest, they would say it’s a Dalmatian. Might have a bit of something else in it, but that dog looks like a Dalmatian. It doesn’t, I suggest, look like a cattle dog or a blue heeler but Dalmatian. So on the one hand, as I said to you yesterday, people will talk to you about circumstantial evidence and they’ll say, ‘Well, there’s a circumstance here because the man at Barrow Creek, he had a white four-wheel drive with a canopy and the man at Barrow Creek, he had a dog. And the man at Barrow Creek had a moustache’. And look here, we’ve got Brad Murdoch. He’s got a white four-wheel drive with a canopy and he’s got a dog and he’s got a moustache. Circumstances. You can use that to mean they’re the same person. No, members of the jury, you need to be more discerning. Because those same circumstances can prove that it’s not Brad Murdoch because his fourwheel drive didn’t have front to rear access. And his dog was a Dalmatian, not a cattle dog. But unfortunately, when Ms Lees is shown the two photos by the prosecution and said, ‘Well, one is Tex, the dog from Barrow Creek

and the other one is Murdoch’s dog. Which dog did the man have?’ Well, she has to morph the dog into a Dalmatian in order to fit Brad Murdoch into the frame. Members of the jury, is that good enough for your purposes or is that yet another bit of evidence that suggests that it’s not Brad Murdoch at Barrow Creek? Do you think the comfit is important, members of the jury? You’ve got a set of the photos that constitute the comfit. Exhibit P32.16 You’d think it would be important, wouldn’t you, because as we’ve heard, the whole purpose of producing the comfit is [page 79] to get the most reliable and accurate image of the man at Barrow Creek as we can. Because the image is going to be circulated for the purposes of trying to identify the bad guy. And you’ve heard the process. Joanne Lees has [was] told, ‘Look, take your time. Look at all of the images, we’re going to try and create an image of the person at Barrow Creek’ and that’s what’s done and you can follow the process through from draft 1 through to draft 9 and consistently the man, you might think, has long hair. And it probably doesn’t advance the cause to waste too much time debating about whether it’s shoulder length hair or collar length hair or what. He’s got long hair. You know, I’d be closer to fit the picture, you might think, than Brad Murdoch. And what’s more, it’s not just long hair because you can see from draft 4 and following, that Joanne Lees actually includes parting of the hair in the comfit and that appears in draft 4, again in draft 5, again in draft 6 and perhaps also in draft 8, I’m not sure, but you can have a look at that. So you might think by reference to those alterations and amendments, she is conscious of the hair. She’s accentuating the parting of the hair, there’s no complaint about the length or the appearance of the hairstyle. And this is identifying diagrammatically or pictorially the man at Barrow Creek. You might think this is really important evidence that says it’s not Brad Murdoch. Nobody, nobody

has described Brad Murdoch as having long hair. Nobody, even Bev Allan says she’s never seen him with parted hair. I mean that is not Brad Murdoch, it’s a short crew cut, number 1, number 2, number 3, number 4, it doesn’t matter, it’s not the guy in the comfit. Brad Murdoch is not the guy at Barrow Creek, members of the jury, and the comfit, you might think is the most reliable, accurate image of the person at Barrow Creek that you’re likely to get. ‘Well, yes, but you know, I did it on the Sunday and people were asking me questions and I was giving statements and I was tired and I hadn’t slept, and you know — yeah, well, I had another go at it on the Monday morning as well, but yeah, I didn’t sleep too well that night, so I’m — I must have made a mistake. I must have made a mistake, of course I must have made a mistake’, because it’s got to be Brad Murdoch that gets found guilty for murder. So we can’t rely on the comfit anymore because if the comfit’s right then Brad Murdoch is not guilty. Well, members of the jury, is that good enough for you? Are you happy to find my client guilty of murder on that sort of evidence, members of the jury? There are other issues, members of the jury. There’s the description by Joanne Lees of these shelves in the back of the vehicle that she — shelves in the back of the vehicle that she gave to Libby Andrews. Now of course she says, well, no she doesn’t remember doing that, perhaps she was describing the shelves in the back of her Kombi. Well, you’ve got the notes of that conversation, you can assess that, but if there were shelves in the back of this vehicle, with bottles on them I think she described, it’s not Brad Murdoch. Members of the jury, in relation to the man at Barrow Creek and the vehicle at Barrow Creek, it couldn’t have been Brad Murdoch, you might think, because of the mesh. Whether the prosecution finds a need to move back from the front to rear access and postulate ethereally that Joanne Lees might have got into the back of this canopy by some other method, it couldn’t have been into the back of Brad Murdoch’s canopy, you might think, because of the mesh.

It would have involved, in order to get into the back of his canopy, lifting the canvas or undoing the canvas, dropping down the tray sides and lifting up or propping up the [page 80] mesh. And even Joanne Lees, and I doubt even the prosecution case will postulate to you that that happened. With the mesh there, you might think, it would have been impossible to get out of the back of the canopy, even if you could have got in. But whatever did or didn’t happen at Barrow Creek and whoever this man and his vehicle were, it wasn’t Brad Murdoch, because Brad Murdoch, as you know, had the mesh. Then of course there’s the camper-trailer. I probably addressed this officially on the camper-trailer, members of the jury, but bought it and registered it in his own name, he did, 9 and 12 July 2001. Even Hepi saw the camper-trailer in Broome. Now true it is, Hepi thought he’d seen the camper-trailer in Broome before the July trip, before the Barrow Creek incident but he’s got to be wrong about that. He’s got to be wrong about that because he didn’t buy it until 9 July. But the fact that Hepi saw it in Broome might be evidence that tends to confirm that it was towed from Adelaide to Broome, probably on this trip, because he didn’t do any trips for a while after that, he was building up his vehicle. Jamieson saw the camper-trailer. You remember at Fitzroy Crossing, Jamieson saw the camper-trailer. Jamieson also said the mesh on the canopy was the same on that July occasion when he turned up at Fitzroy Crossing. You’ve got the evidence of the man from Repco, you’ve got the receipts. He’s towing the camper-trailer, members of the jury; he’s towing the camper-trailer. He’s not the man at Barrow Creek. And where is the evidence in the event that the prosecution even suggests this — I don’t know if they will or not but perhaps they will — suggest

that he must have dropped the camper-trailer off somewhere and just left it lying around for hours on end. Well, members of the jury, you’d be entitled to say ‘Where is the evidence of that upon which I can rely?’, because, members of the jury, there’s none. The man at Barrow Creek didn’t have a camper-trailer because it’s not Brad Murdoch. You’ll be probably quite pleased to hear that that’s about it from me, members of the jury. I hope that at least some of the suggestions, comments, observations that I’ve made, will be of assistance to you in the course of your difficult but important job about which I spoke yesterday. Obviously you will not hear from me again and that’s perhaps in your mind a good thing, I don’t know, but Mr Wild will address you now or soon and then of course his Honour will sum up the case for you before you begin your deliberations and of course it would appear — in fact I think we all know that you won’t be starting your deliberations until next week, until probably Monday some time. I suppose the only down side from my point of view, given all of that and in me going first is that, you know, I hope you don’t forget or overlook any points that I might’ve made that are important to you. And perhaps if you’re deliberating next week and you think his Honour made a point there, or Mr Wild said this or whatever, perhaps before you resolve it, if you could ask yourselves, well hold on a minute what did Algie say about that? What would Mr Algie have said if he’d — sometimes I miss things, and forgive me for that. But if you could adopt that approach, so that you know, before you resolve any important issues. In conclusion can I just say this, ladies and gentlemen of the jury, with respect to each count, you’ve only got two choices as it were in terms of a verdict, guilty or not guilty, that’s it. Guilty, members of the jury, is a verdict that carries with it a degree of absolute certainty. Take count 1, a verdict of guilty says that Brad Murdoch is a murderer and killed Peter Falconio and you are satisfied of that beyond reasonable doubt. It’s absolute the verdict of guilty.

[page 81] But, members of the jury, a verdict of not guilty does not have the opposite effect, it does not have that same degree of certainty, for instance it certainly does not mean — a verdict of not guilty does not mean Peter Falconio is alive, it certainly doesn’t mean for instance that Joanne Lees is a liar, or that nothing at all ever happened at Barrow Creek. It doesn’t mean any of that. I mean if you thought any of those things, if you had a doubt about any of those things, well of course, could be not guilty. But a verdict of not guilty doesn’t mean that you’ve made a finding of any of those things. It could simply mean that, ‘Well, something happened at Barrow Creek, but we’re not sure what it was. It might simply mean well we’ve worked really, really hard at this, we’ve gone through the evidence, we’ve listened to what everybody has said, but we simply can’t resolve it, there’s too many uncertainties here, we’re not sure’. It might simply mean at the end of the day, ‘Look, try as we have we’ve got a doubt, I’ve got a doubt and I’m obliged consistent with my conscience and my oath as a juror to give the benefit of that doubt to the accused, so I find him not guilty’. Members of the jury, it’s a matter for you but in the discharge of your important and difficult duty and acknowledging the presumption of innocence about which I spoke early in my address to you, could I suggest that a starting point might be to say, ‘Well, look, Brad Murdoch is presumed innocent, I will apply the presumption of innocence and I will say that my verdict is going to be not guilty. I will now look at the evidence and I will consider the evidence carefully and I’ll consider the directions and the addresses and I will see if on the evidence, I can be satisfied beyond a reasonable doubt of his guilt, of the prosecution case’. Members of the jury, it’s a matter for you but in the discharge of your important and difficult duty and acknowledging the presumption of innocence about which I spoke early in my address to you, could I suggest that a starting point might be to say, ‘Well, look, Brad Murdoch

is presumed innocent, I will apply the presumption of innocence and I will say that my verdict is going to be not guilty. I will now look at the evidence and I will consider the evidence carefully and I’ll consider the directions and the addresses and I will see if on the evidence, I can be satisfied beyond a reasonable doubt of his guilt, of the prosecution case’. Thank you, members of the jury, for listening. On behalf of Brad Murdoch, thank you and thank you. Your Honour pleases.

1 2 3 4 5 6 7 8

9 10 11

See Exhibit P170A, Photo 17. Photos 11, 12 and 13. Photo 14. Photos 11, 12 and 13. The alveolus is the bony ridge holding the upper front teeth. Which Sutisno suggested was consistent with having lost the upper front teeth, which in fact the accused had. Both was an expert called by the defence to throw doubt on the evidence of Whitaker. Pearman was called by the Crown to give evidence that he had inspected the new laboratory in Darwin and found its methods satisfactory, and that he had checked the DNA results of the blood sample taken from the back of Lees’ T-shirt and agreed with the result. In cross-examination he gave evidence that LCN testing was not used in Australia and that from reading about the methodology, there were two problems with it: first, if you conducted two tests you would likely get two different results; and second, the system is so sensitive that it will pick up background levels of contamination. The consequenece of these problems is that it makes interpretation difficult. See Exhibit P122A, Photo 18. The lid is very difficult to see even though this is the blownup photograph referred to by Algie. See also Exhibit P134A, Photo 2. See Exhibits P134A, Photo 2 and P135, Photo 19. McPhail was called by the Crown to show that she had met Murdoch while she was driving across the Nullabor Plain from Perth to Adelaide, starting on 19 June 2001, about four weeks before Falconio’s disappearance. She had never met Murdoch before, although she had lived in Broome and they had some common acquaintances. While travelling together, Murdoch was driving his own vehicle and she was driving hers. From time to time they both stopped en route to fuel up, to take a rest break or to spend the night together. McPhail told the jury that when they got to the top of the Bight they camped together and on that occasion they consumed alcohol and marijuana. She admitted to consuming light beer on the way. However, the conversation about the gun occurred at a place referred to in the evidence as marking the beginning of the Iron Triangle, several hundred kilometres east of Ceduna, on the side of the road when both had pulled over for a break. The Iron Triangle is an area of South Australia in the vicinity of Whyalla, Port Augusta and Port Pirie. McPhail admitted to taking amphetamines at various stages before this particular stop when this alleged conversation about the silver

12 13 14 15 16

gun occurred. She also gave a description of Murdoch’s vehicle and said that the canopy did not have mesh sides. The Great Australian Bight. McPhail’s evidence was that they last saw each other at Port Augusta. Penong is west of Ceduna. The word ‘think’ is a typographical error; it should read ‘thin’. The word ‘he’s’ is a typographical error; it should read ‘his’. See Photo 10.

[page 83]

CHAPTER THREE THE FINAL ADDRESS BY THE PROSECUTOR OVERVIEW 3.1 The structure of Mr Wild’s address is to deal with a number of matters raised by Mr Algie and then to explain why the jury should draw the inference from the evidence that Mr Falconio is dead, that Falconio was shot with a .22 pistol, and that Ms Lees is a credible witness whose evidence is independently supported by other evidence; to explain away any discrepancies or contrary evidence to Lees’ evidence; to persuade the jury that Lees’ identification evidence that Murdoch was the person involved is reliable; to persuade the jury that Murdoch had a .22 pistol and a vehicle which fitted the description of the vehicle seen by Lees; to show that Murdoch had the opportunity to have committed the crimes by reference to his movements at the time; to show that the person seen at the Shell Truck Stop was Murdoch and that this not only fitted with the Crown case that he had the opportunity to have committed the crimes but that his later attempts to change his appearance and that of his vehicle were consistent with an attempt to escape detection by the authorities; to show that Murdoch’s account should be rejected and why; to show that Murdoch had told lies from which the jury could draw an inference of guilt; and to invite the jury to find that the DNA evidence matching Murdoch’s DNA found on Lees’ T-shirt, the cable ties used to restrain her and in the Kombi Van was damning, and the linch-pin of the Crown case. During the course of his address, Wild deals with a number of other issues which were relied upon to support the principle thrust of the Crown case and to deal with the thrust of the defence case. The first issue that Wild deals with is the suggestion made by Algie that the

police may have acted corruptly by planting evidence to ‘fit up’ Murdoch. There was no direct evidence to support this, but Wild draws out from the evidence circumstances which he suggests lend strong support for the proposition that this simply did not happen. MR WILD: Thank you, your Honour. He wasn’t very happy. He was strung out. Very stressed. It hadn’t been a good trip. There’d been a few dramas. He suspected somebody had been following on that occasion and he’d had to deal with it. He’d taken a different route to the one he’d first planned. He said he had to come the long way because of roadblocks due to looking for Mr Falconio. This is what he was telling Bev Allan in those days immediate[ly] after he returned to Broome after this trip. What were the dramas? Who’d been following him? What did he have to deal with? How did he deal with it? There are some questions for you, ladies and gentlemen. My learned friend has made a very fine speech and you’ve listened to it carefully as he’s asked you to and you’ll consider it carefully. You nevertheless might have found it difficult to be confronted with this allegation of corruption in the Northern Territory. Corruption by the police. You might’ve found it offensive as one of the police officers did. Corruption, conspiracies, this innuendo running through the case. There is not one tittle of evidence to support it. Not one. [page 84] Denying a thing a hundred times doesn’t give any substance to the allegation. Every time it’s been put in this case it’s been denied. You may not regard it, as my learned friend would have you, as a matter for you. Matter for you, ladies and gentlemen, he says to you. It’s not a matter for you unless there’s some evidence that justifies it. You can’t just pull it out of the air somehow and say, ‘Oh yes, maybe there was a conspiracy here’. There’s no evidence of it so you can disregard it.

You’re not interested in Royal Commissions into the police in New South Wales or Queensland or how they behave in South Australia, dare I say it. And you’re not interested in what happened in the Azaria Chamberlain case. You’re interested in this case. His Honour’s told you already to listen to the evidence. Ignore the press, ignore everything outside this courtroom. The evidence you heard from that witness box, the documents that you’ll have before you, that’s what you decide the case on. Not in innuendoes, suggestions of things that are not admitted by any person in the witness box. Now, his Honour will tell you about that again, I’m sure, and you have got a lively awareness of it, I suggest to you. On 17 July 2001, that’s three days after Barrow Creek, the police had a DNA extract from Joanne Lees’ T-shirt. Full match — a full profile, rather, of DNA. It was a blood sample, perhaps the best you can have, and it was unmatched. They did not have anybody in Australia on their database that matched it. And that remained the case for at least 12 months or so. Now, who were they trying to fit up between July 2001 and August 2002? Was it Mr Bradley John Murdoch? The answer is obviously not. Now, in October 2001, police went to Barrow Creek to the scene of the crime and they found some items which they’d missed the first time. That’s suggested to you to be part of conspiracy, to be part of the police dropping evidence in a spot. Why? What were they doing that for? No person that you’ve seen in the witness box agrees with that scenario and nor would they. You might think that on 16 and 17 July when the police were doing their searches that there was a misunderstanding between Mr Sandry and Mr Spilsbury and Mr Grant, who was leading the team. And I suggest to you it was no more than that. One or other thought that the other one had done all the searching in that area. Shifting leaves over the next three months made what was not immediately apparent, apparent, when Superintendent Kerr, as she now is, found the tape sitting, as you’ve seen it in the pictures, in the leaves there, very tiny bits of tape.1 You’ll have a look at them later, I suggest to you.

She found them. She is the same person that my learned friend cites to you as complaining about the lack of work done on the cable ties. She is someone who is critical of the police work in one area, according to my learned friend, and yet she’s the one who finds the cable ties. Was she planting them there? She was the first one in. Did someone do it the day before, the week before? Why? And what did they do with them when they found them? They went to the forensics and they were in due course examined. If they were trying to fit up Mr Murdoch then or at any other time, why didn’t they stick some of his DNA on them? There can’t be any answer to that, can there, because it’s nonsense, I suggest to you. Now Mr Algie says we could ask every police officer in the Northern Territory whether they planted evidence or corrupted the handcuffs and they’d all deny it, he said. It would be a waste of time asking them. Well, of course it would because they haven’t done it. It’s one of the red herrings in this case and there’s a few others and we’ll address them as we go. [page 85] You won’t believe for one minute that Libby Andrew, the police officer, told a little lie or a big lie or any lie when she gave her evidence. She was transparently honest, I suggest to you. Nor has any other police officer in this case told lies, fibs, untruths, anything of the kind. You shouldn’t concern yourself with such matters and that will become important to you when I analyse the DNA evidence for you, which you might think is fairly significant in this case. If some contamination had been deliberately inflicted on the cable ties in October 2002, and you’ll know the incident I’m talking about, where they were taken down to South Australia to be shown to Mr Murdoch. Immediately after that, why weren’t they tested for DNA? If that was the purpose of that visit, why didn’t they do something about it? Why wait for two and a half years until May of this year before they got tested by sending them to England? If they were going to

compromise those ties by putting Mr Murdoch’s DNA on them, why did they need to send it to England to get tested? Why couldn’t it have been done here in Darwin? We can test DNA in Darwin. The reason it went to England, of course, is because it was a complicated exercise and England and Dr Whitaker and his laboratory are the ones that do this low copy number that you’ve heard of. It was sent to the expert for proper reasons. If it had been just, ‘Let’s pour some DNA on these’, then why not do it in Darwin? So you can ignore most of that. If they had done a job of planting evidence, why didn’t they plant it all over the steering wheel and why didn’t they plant it all over the gear stick? Not just a small sample which gives us a restricted DNA finding, as you know, why not pour it all over the place so that we’ve got plenty of evidence of Mr Murdoch’s DNA everywhere? So that’s really unanswerable, isn’t it? For good measure, once they had Mr Murdoch’s vehicle in 2002 and they had that hair tie, why not put some of Joanne Lees’ DNA on it, to get that further marry up, why not do that? I suggest to you the reason is obvious. The evidence you’ve got in this case is the evidence as it is, it’s not evidence which has been doctored or tutored or messed about with, it’s what it is. And whatever you find it is, is what it is, it is not something you need to look behind. 3.2

The Crown had called evidence from two witnesses, Pamela Brown and Jasper Haines, who, on a Saturday morning, had driven along the Stuart Highway from a community to the west of Ti Tree to go to another community, Ali Curung, to the north, past Barrow Creek. They spent the day in Ali Curung and left to return home late in the afternoon. On the same drive that evening they were, according to Brown, passed on the road by a large white vehicle (a Toyota Landcruiser, according to Brown’s husband, Haines) heading north, which had just driven onto the bitumen off the verge. Just after that they passed an orange Kombi Van parked on the side of the road facing north, with its lights out and no people around. Brown was able to indicate the area where this occurred by reference to some

photographs which placed it in the vicinity of the crime scene. Haines said that the Toyota was a tray-top ute with a green canopy on the back and it came from behind the Kombi Van. Wild suggests that this was Murdoch’s vehicle. In his address, Algie had also referred to this evidence as suggesting that this was not Murdoch’s vehicle because it was heading north, and not south as suggested by the Crown case. Wild offers an explanation as to why the vehicle at that stage might be heading north.

[page 86] MR WILD: Now I’ve heard it said at different times that this is the Falconio mystery. In our submission, it’s no mystery. Peter Falconio died on 14 July 2001, his body was hidden, Joanne Lees was threatened at the time, she was attacked, she was handcuffed, you’ve seen the style of handcuffs used, they’re broken down over there in P176, exhibit P176 which you’ll have with you. Meticulously put together you might think, somebody with a great deal of time and patience and attention to detail has assembled these handcuffs. A certain style about the man who did that. She was handcuffed, thrown out of the vehicle, hit the ground, punched, manhandled and she escaped. You can only guess at what might have happened if she hadn’t escaped. I suggest to you that she would not have walked free. I suggest to you that Mr Murdoch, the man involved in that, panicked. You might remember some evidence from Mr Millar, and my learned friend reminded you of it yesterday. Lights shine a long way down that road, so while he’s sitting there at the roadside, he’d see a car coming and the car that did come was that of the Browns, Nabangardi Brown. He would have known it was coming, and I suggest to you that what they saw was Mr Murdoch’s vehicle coming out from behind the Kombi, slowly, you remember they said, heading north. My learned friend made some issue of this, it was heading north

slowly and it’s obvious isn’t it what happened. He turned around and came back as soon as they’re out of the way and did what he had to do, clean up the roadside. A cursory look for Joanne again in the bush and then he had to get out of the way because he couldn’t afford to be seen there, as my learned friend says, in case Joanne did have the courage to run out on the roadway with the vehicle coming. It would have taken a tremendous amount of bravery you might think to do that, and it took her some hours before she was prepared to. So, you might think that the man who cleaned up the scene, who put the gravel on the blood, moved the body, was a meticulous and a fastidious man, fits Mr Murdoch doesn’t it? 3.3

Next, Wild points to the circumstantial evidence that shows that Falconio is dead, notwithstanding some ‘sniping away’ at the evidence by the defence.

MR WILD: Now the defence, don’t have to prove anything in this case, the Crown has to prove its case beyond reasonable doubt. What the defence is entitled to do and does is snipe away and point out things that they say are inconsistencies or difficulties with the case and they criticise the police investigation as they’ve done in this case, unless its suits them to not do. In which case they praise the police investigation. For example, the very thorough search for a bullet which was never found, as you know and the very thorough search for the body, so they say they’ve done good work there, they haven’t found a body, therefore there is no body, haven’t found a bullet there’s no bullet, they adopt what the police have done. At the same time of course, they allege skullduggery of the kind I’ve referred to. They talk about cigarette butts of which there is no evidence at all in respect of being used in an improper purpose. 3.4

This is a reference to evidence given by Mr Hepi, who had arranged to have collected some cigarette butts from the shack at Sedan because he wanted to prove that Murdoch had stolen some of his property. It had nothing to do with the Crown case.

[page 87] MR WILD: They talk about planting of evidence, contaminated DNA. Where’s Peter Falconio? I suggest to you that Peter Falconio is dead. There has been a thorough search for his body. You live in the Northern Territory; you know what a huge area we have. You’d have some idea of how remote Central Australia is. It would not be difficult, I suggest to you, to hide a body. Perhaps one day it’ll be found. But it might take some time. On 14 July, Peter Falconio had everything to live for. He had a lovely partner. He was on the trip of a lifetime in a beautiful sunset, remember, at Ti Tree, he’d watched with Joanne. He had a birthday coming up in a few weeks. They were intending to celebrate it in Fiji, I think it was, after they’d been to New Zealand to see their friend there. In fact, you heard the friend give evidence in respect to that expectation.2 He had tax refunds to worry about. All the normal things that we, in life, have. He was upset about his tax refund. And about to disappear, was he? Planning to disappear? Heading up the road, he wanted to put out a bushfire. Joanne didn’t want to stop. We know there were bushfires along the road because we’ve been told that by the TRG people who inspected the scene later. Bushfires weren’t put out but his life was put out. An overtaking driver. ‘Why doesn’t he pass?’ he said to Joanne. Exactly what every one of us says at different times, driving along the road with lights behind us. Now why doesn’t he overtake? Ring of truth about it. There’s blood on the road. It’s conceded by my learned friend, in his speech yesterday, to be Peter Falconio’s. No doubt it was his, he says. In any event, the evidence is that the blood and DNA from it, 3.8 quadrillion times more likely to have come from Peter than from anyone else. Peter’s blood. He hadn’t left the country, legitimately at least. His passport hasn’t

been used. It’s still held by Ms Rowe. There’s been no action in Immigration. His family hasn’t heard from him. The family that’s been sitting in this court for the last eight weeks. Not heard from him. You’ve got a picture of the family in the first day or two of the trial. Is it the sort of family that would be deserted by some? His two brothers who are sitting here, two of his brothers. They’ve been here most of the trial with his Mum and Dad. Would he put them through that? The bank hasn’t heard from him either, for that matter. His credit card or anything else. Joanne called out for him in her anguish at the time but he didn’t come because he couldn’t come. She had no doubt he would’ve come. He has not disappeared himself, to use my learned friend’s expression. He’s been disappeared by Bradley John Murdoch. 3.5

Wild submits that Lees is a witness of truth, and throws cold water over the implied suggestion that she was responsible for Falonio’s disappearance. He supports his submission by reference to the inherent probabilities of her evidence and by reference to other supporting evidence in the case. Just as Algie had done with Murdoch, he paints a broad picture of the position Lees found herself in to explain away some of the discrepancies which Algie had referred to in his address to the jury as ‘strange’.

MR WILD: I want to talk to you a little bit about Joanne. I suggest to you, you can have no doubt she’s telling the truth. This was a terrifying experience for her. Some suggestion yesterday and it didn’t sort of go anywhere, but my learned friend was saying there is [page 88] no body and the implication of what he was saying was if there is a body — this is an implication, he didn’t say this — perhaps Joanne Lees knows more than she’s told you. He posed the question whether she could have driven the vehicle

with those manacles on. He didn’t take it any further but he just threw that up. Now, why? Why did he throw that up? What’s that got to do with anything? Is there a suggestion by my learned friend that he wants you to have buried in your mind somewhere that Joanne Lees was somehow involved in what happened to Peter? You should have no such doubt in your mind about it. If she was telling a story, why didn’t she say, ‘And I saw Peter’s body on the road’, because that’s one of the things my learned friend says to you. He says as she walked down the side of the road by the bitumen from car to car, you didn’t see his body. Well, if she wanted to embellish her story a bit, why didn’t she tell you that? The reason is obvious, it’s the truth and she didn’t see his body. It was because the way in which she was marched, as it were, hand behind her neck, steered down the road. The day started well for her as well in Alice Springs that day. I’m going to remind you of some of her evidence, although you might still have a vivid picture in your mind, it was given very vividly, but it is now seven weeks ago. There was an enormous amount of stress, pressure on her immediately after the events. Obviously the stress and emotional aspect of this from her perspective was incredible while it was happening, but even afterwards the pressure stayed on. And she was required to give many, many police interviews. And I took her through this at page 272 of the transcript. She’d made two statements at Barrow Creek to the police officer there. Do you remember something went wrong with the computer, had to do it all again, there was an 18 page handwritten one as well as the one lost on the computer. And when she got back to Alice Springs she was being interviewed for hours and hours and it was during the course of that, and my learned friend reminded you of it, that the comfit picture was prepared. Altogether that night there were 11 separate tapes taping what she was saying, recorded and 136 pages of those interviews giving details, details, details. It came to 11 o’clock that night, which is then been about 36 hours since she’d last slept and she was taken, you might remember, to look at cars in Alice Springs, after 11 o’clock that night,

the Sunday night. So the next morning she continued and then there was the continuation of the comfit. Then after that she was — we’ve heard of the Stagg interview which went for about six hours on 20 July — and then on 7 August she gave another three-hour interview with Constables Henrys and Kerr, 163 pages that day. So a tremendous amount of material, all of which my learned friends have had all this time and that’s been the basis on which they’ve been cross-examining her. So the matters that you can find in her evidence that point to differences or discrepancies, come from 300 pages or more of interviews over a period of time and a great deal of stress, in a strange town, Alice Springs is not her home, being looked after by a police officer and having just lost her partner, although she wasn’t prepared to accept that for some time, you might think. Now the comfit drawings my learned friend’s talked about. He finds discrepancies in the car and we’ll perhaps talk about them in due course. The resemblance comfit — forget the hair for a moment — the resemblance in the face, I suggest to you, is quite extraordinary. She talked about deep set eyes. If you take the moustache off the man in the comfit, I suggest to you the resemblance is extraordinary. Now how would any of us react to the criticisms of the — I’ll withdraw that. [page 89] How would any of us react in the situation she found herself in? Now, his Honour asked some questions and I’ll take you to it shortly, which will give you some feeling for how she was at that time. Bearing in mind that not only has she made all those statements but we are now four years down the track and all the witnesses will have difficulty with remembering what happened four years ago.

And for example Mr Murdoch in the witness box, I was asking him about trips that he’d done that year and he said, ‘A lot of trips, Mr Wild, a lot of trips’. And it was difficult for him, you might remember, to put it all together and you might think that for him, more than anybody else in this room, except for Ms Lees, this is a day and a weekend of some mighty significance that he would remember therefore the surrounding circumstances. Now Peter was at the accountant that morning at 10 o’clock and we know that because there’s an appointment and we have the accountant come and give evidence. Joanne was at the library doing emails. They had breakfast at the Green Frog café we’re told. They went to the caravan park, rang Amanda3 from the caravan park. Now there’s some doubt — again we’re talking four years ago — some doubt in the minds of people, and Amanda whether she said — ‘she’ being Joanne said — ‘We’re going to the Camel Cup or we’ve been to the Camel Cup’. Once you place the time of the phone call and you can look at the records that we provided to you, the phone records, and you can confirm the time is 11.30 am, and the recollection is, ‘Peter’s in the shower, he’s just coming out or going’, or ‘I’m having a shower’, whatever it was, that’s the timing that Amanda remembers, that was what was happening. They went to the Camel Cup; they were there for two or three hours. They were there for the Camel Cup, you’ve got the program, Camel Cup was at 2.30 pm, the last race was 4.15 pm, which the recollection of Ms Lees, that they went to the Red Rooster before they left Alice Springs. So we’re talking somewhere after half past 3, 4 o’clock, leaving Alice Springs at 4.00 to 4.30. That’s the evidence she gave and that’s her recollection and always has been. Left Alice Springs 4.00 to 4.30 pm and got to Ti Tree at 6.21 pm, that all fits in you might think with the time it would take to get to Ti Tree. We know they got there at 6.21 pm about, because that’s when the receipt, which is P6 that you’ve got, we know the exact time they paid for the petrol and the receipt. Got there a little bit earlier, watched the sunset, you remember that, had a smoke, I think Joanne went to the toilet there. Peter bought some lollies whatever, and they headed

off up the track. There’s the fire that we referred to. Joanne remembers she had a denim jacket with her in the front seat, whether it was around her shoulders or she was sitting on it, I’m not quite sure. She had her hair in a hair tie as she told you, thick hair tie — thick hair. Car came alongside and the dog, the dog sitting in the front of the car. Very reminiscent you might think of the way the dog sits in the car in the McPhail story, Julie-Anne crossing the Nullarbor, car goes past, look across the dog is sitting up. A man, eye contact across the front of the seat, the same sort of thing that Julie-Anne McPhail talks about. The man wants them to stop, they stop. Joanne doesn’t want to stop, Peter is more self-confident, macho perhaps and stops, goes to the back. You know he says, ‘Cheers, mate’ because Joanne hears him say that. He comes back, gets his smokes. She’s moved across. She’s looking out the back, she sees the man there. Big man. Revving the engine, hears a bang. Doesn’t immediately think it’s a gunshot because she’s revving the engine and not surprisingly thinks maybe it is the backfiring. [page 90] Suddenly the man’s there at the window, gun pointed in, in his hand. Door opens, in he comes. And he’s all over her. He’s a big man. Fills up all the space in that vehicle. That’s the impression she has. And you might think a man the size of Mr Murdoch would give that impression at the front seat of a motor vehicle, coming in at you. Struggle, handcuffs are applied. They’re obviously ready on purpose. Gun’s pointed at her head again. Door open, thrown out. In some way pushed out. Hits the ground. Damage to her knees, elbows, in that instant or in the struggle which follows immediately. He’s sitting on top of her backwards trying to fasten her legs. She’s fighting. And he only half gets her tied up in the legs as you’ve heard. You might remember when the handcuffs were shown, mock up, was

shown to Mr Murdoch during the course of his evidence. He shrunk away from them. He wanted nothing to do with those handcuffs. So there’s fighting. She’s up on her feet. Walks her to the car. She’s screaming. She’s pushed in the front. 3.6

At this point, Wild deals briefly with the evidence about the dog, Jack. Note that he does not suggest that Lees, at any time, identified Jack. The first point he makes is to rebut any suggestion of fabrication by Lees because the dog did not react to what was happening.

MR WILD: There’s the dog. The dog doesn’t fight, argue, bite, lick, anything. We know about Jack, don’t we? Jack’s a good dog. He doesn’t fight and bark and screech. Not when Bradley Murdoch is there. We’re told that by Bev Allan. This is someone being put in the car by Bradley Murdoch, his owner. He’s not fighting or arguing with him. 3.7

Wild contrasts Lees’ opportunity to see the dog with her opportunity to see her assailant. The point he is making is that she had a good look at Murdoch in favourable conditions, but not such a good look at the dog.

MR WILD: Now, that dog is seen for a short time. My learned friend wants to make a lot of the fact that what the dog looks like and what Ms Lees identifies as being that dog. But in the whole of this situation, we’ve got a man who is tying her up, has tied her up, is manhandling her and she is justifiably terrified. The man is right in her face. Right in her face. You remember these questions; his Honour asked these questions at page 112. Ms Lees, you told the jury there was a stage in which you were put into the 4-wheel drive. I think you said, ‘He was looking at me and I was looking at him’. That you saw out of peripheral

vision, a fire extinguisher. Is that right? — I couldn’t be sure it was a fire extinguisher, I saw something. At that point when you said he was looking at you and you were looking at him, what was actually happening, what were you doing? — I was backing away towards the driver’s door. With her back to the dog obviously. [page 91] And when you say you were looking at him, what part of him were you looking at? — His face. It’s probably very difficult now to go back and help the jury with how long you might’ve been looking at his face in that part of it. If you need, would you please watch the second hand on your own watch or up there on the clock, allow the time to go by and see if you can help the jury as to how long you were actually, at that point, looking at his face? And she says: ‘About that length of time’, having timed it, obviously. His Honour said: Time went by, about 10 to 15 seconds? — Yes. It’s a long time, 10 to 15 seconds. You time it yourself later. You can run 130 metres if you’re a Stawell Gift winner. How far apart were your faces at that stage? — Very close. Difficult to say. He was coming up to my face and coming closer and closer. I’m just leaning backwards trying to distance myself from him. Now, at that point, when you said you put your hand up and you brought your hand close to your face? — That wasn’t what I did. I’m saying that’s just how … Representing him? — Ye, he was going like this.

And perhaps can you hold your hands apart and tell the jury how close you think he got to you. She puts her hands up, indicates about 18 inches, a foot to 18 inches. Looking right in his face. This man is all over her, face to face, for 10 to 15 seconds at that point and she’s terrified. 3.8

Wild then deals with the issues of the smell and heat from the gun, and refers the jury to the overall circumstances to suggest that Lees’ evidence about this is not surprising.

MR WILD: She was asked by my learned friend whether there was any heat from the gun or an odour from the gun. If she wants to embellish a story, why not say, ‘Yes, the gun was hot. I could feel it when it was held at my head and I could smell it’. Well, she doesn’t say that. Her senses aren’t operating as yours might in a calmer situation. All of this is happening in a terrifying situation. So she doesn’t remember those things. You’ve been told by Mr Wrobel that heat would be negligible, gunshot firing. He gave that evidence. Just while I think of it, Dr Woodford gave evidence. He was the pathologist, remember, who gave evidence as to the effect that a single shot wound to the head might have in respect of the finding of the bullet and he told you that it probably wouldn’t be released from the head. Now what you’ve got to remember is the agony of the moment in all of this. My learned friend criticises her recollections, her descriptions of what happened and [page 92] what the car looked like. Her focus, I suggest to you, firstly in this time is on the man, her focus is where she finds herself, her focus is on escaping. She’s in the back — and my learned friend criticises the way she says she got into the back, but she has to, as best she can, recall

how this happened. This is a big, strong man and I suggest to you that in the agony of the moment, fighting, shifting, moving, shoves her in the back of the vehicle, would not be difficult for him and it would not be easy for her to remember precisely how this happened. Her recollection at the time is being pushed through the front. She’s no longer confident about that. She’s entitled to have some doubt about it. The fact is that this whole episode, none of us has been confronted with in our lives with the greatest trauma that she’s ever had. I’m going to read something about that shortly. Now there’s no dog ever looking for her. She’s run out the back. My learned friend criticised her for, in respect of this tail gate. Now you heard the evidence about this vehicle. The vehicle is packed, level, on top of the tray, and covered in such a way that the dog can lie on it from time to time, the covering, you just slide out and over the top of the tray if the back was open, which Ms Lees says it was. No difficulty with that. 3.9

Wild reminds the jury about the events which Lees related in her evidence during the course of which he refers to the evidence about what a frightening experience this must have been for her, the pressure she was under, and how this might explain some discrepancies in her evidence. It was part of his argument that there was nothing ‘strange’ about her evidence, as suggested by Algie.

MR WILD: Ladies and gentlemen, perhaps can I take you back a little back [sic]. When Joanne Lees was standing at the passenger door of the vehicle, you’ll remember that she gave evidence that the man put his hand inside the canopy just behind the passenger’s door, it was easily opened apparently, and reached in and got a canvas bag or similar which he tried to put over her head and she had that on for a short time but she struggled and she managed to throw it off. An important thing for you to picture is that the canvas at that point, that corner there was open. It may be that that’s where she was put into the back or it may be that he took her around and put her in from the

back of the vehicle which she’s given evidence, was in fact open at the time. Her impression was of being pushed into the back of the vehicle. You’ll remember that she comes from a Kombi vehicle, which does of course have front to back access, and in the agony of the moment, maybe that’s where the confusion came into her mind and stayed in her mind for a long time. Now while she’s in the back the man comes to the back of the vehicle, she’s making a lot of noise, ‘Where’s Pete, what have you done with Pete, what are you going to do with me, are you going to rape me?’ and he says, ‘Shut up or I’ll shoot you’. Now you could imagine the feeling of this girl at this time. When there is the vaguest opportunity she can hear movement away and outside, she escapes and obviously, still with her hands behind her back as she’s told you, her passage is not going to be quick but it’s the best she can do, her feet at least are running okay because she’s not impeded there. You’ve got an exhibit P229 which just draws some distances for you, which shows that she probably would have had to travel to get to the point where she was later [page 93] hiding, somewhere 60–70 metres. So it wasn’t as if she just was a few metres off the roadway, she managed to get some distance and that’s consistent with what was found at the spot where she was in fact hiding.4 No dog ever looked for her. Now at this time, as I said to you before, this young woman was in a state of emergency, she’s in fact fighting for her life in her mind. His Honour asked her this question: Ms Lees, again this might be difficult. (This is at page 113.)

The jury have not had an experience of being stopped on the side of the road on a pitch black night (she gave evidence about that) in the middle of the outback. Would you please try and assist the jury with how you felt at the various stages as best you can. For example, you told the jury that when you saw the gun and the events that followed, you were supposed to turn off the ignition and your hand was shaking. Can you give the jury please an idea of how you were feeling emotionally and what was running through your head at that time? — I just kept thinking this isn’t happening to me, I can’t believe this is happening and I felt alone and I kept shouting for Pete, I thought I was going to die, but mainly I just kept thinking I can’t believe this was happening. And his Honour asked: As events went forward from there, are you able to tell the jury, just how your thought processes worked and how you were feeling emotionally? For example, after you’d been tied up and things moved on from there? — It all happened quite quickly from being tied up to being on the ground. My main thoughts that I remember is just screaming out for Pete to come and help me because I was frightened so much. I just hadn’t used all my energy, and once he stood me up and put me up and put me in the back of his vehicle, I just thought that’s it, I’m definitely going to die, I’ve got no energy to get out of the situation, I just felt exhausted. The next thing, the emotion that I can feel really strongly about is when I asked him if he’s going to rape me, I was so frightened, I was more scared of being raped than I was of dying and being shot by the man. I asked him if he’d shot Peter, I kept asking. He didn’t give me an answer straight away and just the realization hit me that he might have killed Pete, I hope that helps you. She said:

And then as you slid out of the rear of the vehicle? — After I’d asked him if he was going to rape me and if he shot Pete, I just got some energy from somewhere and some inner strength, and my focus was escaping and that’s what I just concentrated on, just getting out of there. [page 94] Now this is the way this young woman was feeling throughout this episode and when we come to examine it closely and minutely what she says about the precise colour of the vehicle and the colour of the bull bar and the other configurations of it, you might make some allowance for the situation in which she found herself. She was not there taking notes; she had the most terrifying experience of her life or of any person in this room could ever have. So when you go into the jury room later and talk about her evidence and talk about what my learned friend says about the discrepancies, you make proper allowances for the situation in which she found herself. No dog ever came looking for her. There was a very short search by the man, a very short search. There were lights, she stayed there for hours, if you work out the times, all these events occurred at about 8 o’clock, a bit before or a bit after and it’s not until 1.00 am that Mr Millar comes down the road. It’s a long time. She’s in the bush, in that dark situation. She told you about the lip balm and how that was used, and you know from the evidence you’ve got that that’s the truth because the cable ties when they’re tested later, have that lip balm material on them.5 In fact it soaks right into them as we know. And you know that she tried to chew them off, because there’s the tapes in the bush. Not her fault they’re not found for three months, she told them that’s what happened and they were in fact eventually found. What she eventually does is cross the road and waits until there’s a big vehicle coming. You can tell the big vehicles as you know, because of the lights like a Christmas tree all down the side. And she steps out in front of Vince Millar, almost at the last minute, and he thinks he’s

knocked her. In fact you remember how scared he was about that. He was going to find a body up under the chassis of the vehicle and when she came running up the side of the vehicle, and through and underneath, she ran into his arms and he rescued her as far as she was concerned. And she then insisted — you might remember, sitting in there with Mr Adams and Vince Millar — they go looking for Peter. And they went looking for Peter. They unhitched the trailers, they drove up the road, they found, you remember, the pile of gravel on the road which later was identified as the pile where Peter’s blood was and during the course of this trip up and back in the prime mover, Joanne told them, ‘The man’s got a gun’. ‘Oops’, they said, ‘Let’s get away from here. Let’s find the police’. And they did that. They went to Barrow Creek, they were intending to go further but the Barrow Creek lights were on, as we know, the New Year’s Eve party was on that night.6 And we know that it’s 2 o’clock when the police in Alice Springs received the initial phone call, that’s exhibit P63. It’s an admission that the defence have made. When they arrive at Barrow Creek, she cowers in the truck. She sits there in the truck and she’s not getting out, Mr Adams is with her, not prepared to move. And it’s not until Les Pilton comes out that some encouragement is given to her to come inside. When she’s inside, she’s asking for Peter. Can’t sleep. She sees the dog, Tex, as you know. It was identified to her as a blue heeler. She sees similarities in Tex. She spends the next day being interviewed by police. She doesn’t sleep. I told you about that. As I said to you before, my learned friends have had a mountain of material which they get from the prosecution. You understand how it works. We provide all the [page 95] material to them so that they can be properly briefed as to what the Crown says the position is. We don’t ambush them with material. They

get everything we’ve got. And they’ve raised these issues that are regarded as significant and I don’t dismiss them for your consideration. That’s why I spent some time reminding you of the predicament and experience which Joanne was having that night so that you can be understanding of why it is that she might have some differences. And it’s not because she or the Crown or anybody wants a man, the man sitting in the dock, to be unjustly found guilty. That’s not how it works at all. The Crown leads all the evidence so that you can make a proper assessment of it. But you need to have all of the human elements in your minds as well when you’re considering the evidences before you. 3.10

Next, Wild deals with the artist’s drawings made by Mr Stagg and what use can be made of them. It is important for Wild to explain that some of the drawings had sketches of items placed in the drawings which did not come from a description given by Lees, in order to rebut the submission made by Algie.

MR WILD: I just wanted to remind you of the incident with Mr Stagg. Mr Stagg, the artist, who did the drawings of the vehicle. Now, my learned friend suggested to you that Mr Stagg only drew things that he was told to draw. Well, that’s not accurate. He particularly mentioned the steering wheel. Now, you’ll remember Mr Stagg said, ‘I just drew a steering wheel and I drew it how I thought would be appropriate’. You might remember that’s a very stylished [sic] and stylised steering wheel with four gaps in it. Unlike yours and mine, perhaps. So he said, ‘Well, I just drew a steering wheel. There would be a steering wheel there so that’s the one I drew’. And a lot of the suggestions came from him, you remember, and when you look at the exhibit again, you’ll see that he’s written something like, ‘Ford customised’ or some such on it. That’s not suggested by the witness, that’s suggested by him. He’s trying to get some ideas. Nothing from him in the drawings or in his notes about shelving

which appears later in Libby Andrew’s notes. And when you read Libby Andrew’s notes as my learned friend’s invited you to do, despite the fact that they’re dated the 22 [July], her evidence was it was a rewrite of notes she’d taken, not an interview, notes she’d taken while Joanne [w]as talking with David Stagg. Now Joanne says ‘I don’t remember any shelves and I don’t remember saying there were shelves but we did have shelves in the Kombi’. Maybe that’s where she got it from. But Mr Stagg who’s doing the drawings doesn’t draw any shelves and he doesn’t have any notes about any shelves. So you might think that the misunderstanding there is on Ms Andrew’s part and not on the part of Mr Stagg and not on the part of Libby Andrew.7 It’s very clear, I suggest to you, to suggest that there’s a bit of a lie, a little lie by Libby Andrew about this. It’s very clear when you read those notes that they are notes made at the time of the Stagg drawings on 20 July, not 22 July when they’re signed off. Because what Libby does, I suggest to you, is rewrite them. They’re very neat when you see them, much neater than they would be if you are scribbling them down during the course of an interview. That’s the point that I’d like you to take with you from that. And of course the other thing is, those notes represent six hours of discussion, because Mr Stagg’s there the whole day drawing. [page 96]

3.11

Wild deals with the crime scene and what inferences can be drawn from it.

MR WILD: I just wanted to touch quickly on the crime scene for you. There’s blood on the road, we know it’s Peter’s blood. There’s gravel piled on it. My learned friend described it as a pyramid, I think he was trying to suggest that it was some burial pile or similar. I suggest it was merely something done to cover it up. The kind of thing that would be

done by a man who is very careful about what he does, that’s got an obsessiveness about him. The Kombi was found, of course, the next day but it was in a hidden position. You might remember when the police arrived they actually drove north past it and saw it on the way back, hidden in the bush. When you look at the pictures again you’ll see that the bush at that time was quite thick, the foliage in July was quite thick8 and had in fact — you can see this in the pictures, I think — by the time you look at the bushes in the October pictures when the balm was found, it’s quite dry, much drier. Nevertheless the scrubby bush, hard ground, footprints, difficulty, there’s nothing much in that for you. Pitch black night. The depression in the ground where she’d hidden was apparent, her body was lying there. And as you know the lip balm lid was found but not the other items and you might think there was a real bad misunderstanding, between the police officers at the time that caused them not to do a proper investigation at that time. As I’ve said to you before, there just doesn’t seem to be logic in why someone would go back there and plant additional items. I ask you to disregard that as a possibility. When Detective Superintendent Kerr found the items, of course, she called over Mr. Spilsbury and photographs were taken and he found the balm lower down. They weren’t given to the forensic people, as you’ve been told, and you might not remember this, until 20 November, a month or so later. So it’s not as if they rushed them in and were going to use them, certainly not in relation to this case, insofar as it relates to Mr Murdoch. 3.12

Wild deals with the identification evidence given by Lees. He begins with her initial descriptions of her assailant and then proceeds through the rest of the identification evidence, pointing out consistencies in the descriptions given. He deals with the evidence of finding the photograph of Murdoch on the Internet and argues that the submission of Algie about suggestibility from that photograph has no substance.

MR WILD: I just want to ask you to consider the man that she described. She described a big man, slightly stooped, he had a bushy Mexican moustache, he had a revolver, travels with a dog in the front seat, a four-wheel drive with a canopy, he was on the Stuart Highway that night. Now we know that Mr Murdoch fits all those criteria except, you might think being on the Stuart Highway that night if you were to find what he says to be the truth. And, of course, that’s where it will become important when we talk about the Truck Stop and why we’ll spend some time on that and why we spent so much time on it during this case. Otherwise he fits those criteria and that’s significant, [page 97] one or two or three of them, perhaps not so significant, but all of them I suggest to you become significant. There has been identification of Bradley John Murdoch by Joanne Lees, before and during this case and I’ll just take you through it shortly. His Honour will give very strong directions about identification evidence and the use you can make of it and the way in which you should regard it and in particular reservations that you might have about it. But in this particular case, nevertheless, there are three pieces of strong identification evidence the Crown will say that you can use and give the weight that you think proper to it, given the warnings that his Honour will give you about how you approach it. She’s given a description of a man, includes a moustache and other details. She is told in October 2002 or thereabouts, I might have that date slightly wrong, that there is a story on the Internet about this matter. And you’ll bear in mind that from her perspective at that time, there’s nobody arrested in respect of this matter and there’s nobody the police are particularly trying to find, there’s no number one suspect in her knowledge. So she’s told by her friend — and she’s on holidays at the time — she’s told by her friend that there’s a story on the Internet about that matter. So she looks up the story. She’s not expecting, she told you, to

see a picture and you’ve got exhibit P40 in front of you. It’s a story on the Internet and as she turns the screen, turns the page on the screen figuratively speaking, there’s a picture of a man. And the man doesn’t have a moustache but she says that’s the man to herself obviously, that’s the man. And she’s given evidence to you, this it at page 164 and 165; she just knew it was him. Now my learned friend criticises that on the basis — well, she’s expecting to see him, but she wasn’t. She is expecting a story that talked about the man, but she was not at that instant expecting a picture, and she recognised the man. Shortly thereafter the police attended on her with a — what’s called a photoboard which had 12 pictures on it — and you’ve got that as exhibit P489 — and they showed her that photoboard and they videotaped that performance. So you can see exactly what happened — and that’s exhibit P47, you can play that again — and you can see what happened between her and the police officer, an English police officer present at the time and who took her through it. And she identified number 10, and she said, ‘I think it’s number 10’ or ‘I think that’s the man’, and she pointed at number 10. His Honour asked her what she meant by the word, ‘think’, and she says, ‘I was very positive’, page 172. We can all say it, ‘I think’, in different ways, ‘I think it’s so and so’, or ‘I think it’s so and so’, that kind of use of the word ‘think’. Well, you can listen to her and see what she says, but that’s what she says she meant, that she was very positive it was that man. And then at the committal hearing in this case, which took place last year, she was confronted by Mr Murdoch, sitting where he is now, and she identified him as the man. You mightn’t think that’s too hard to do because he’s in the dock, and it’s the same man that she’s already identified, but nevertheless, she identifies him again. If she said it wasn’t him, that might be significant, you would think. And then here at page 84, she’s asked again if she sees the man, she says, ‘I am looking at him’ and she clearly looked across at Mr Murdoch and identified him at that time.

Now I just say once more, there are dangers in ID cases and I’m going to remind you of some of those later in my address to you, because there have been some other [page 98] identification of people during this case which you might not think are too good. People do make mistakes about identification, but I remind you of the passage I read to you earlier this morning, in regard to the way in which Mr Murdoch put her into the front seat initially, with Jack backing back [sic] and using an expression which we’re all familiar with, ‘He is right in her face’ and she’s looking right at that man. And you might think that gives it some additional significance to what you would have seeing a fleeting glance of somebody at a pub or in the street. This is a man who became part of her life on that day and she identifies him as Mr Murdoch. Ladies and gentlemen, I just wanted to touch on a few other matters. 3.13

Wild now draws attention to some other evidence of a circumstantial nature supporting the Crown case. This includes the way the back of the Toyota was packed, the inside colouring of the Toyota, the bucket seats in the Toyota described by Lees and how these seats were not the normal seats for that type of vehicle. This is evidence of a circumstantial nature which is used to support the evidence of Lees.

MR WILD: In relation to the car, we were talking about the car this morning and my learned friend was talking to you about it. He pointed out some of the differences in the car. I wanted to remind you of a couple of similarities as well. You might remember that when Joanne Lees was in the back of the car she had a soft feeling under her, like a mattress which was similar, and it was level with the top of the side trays, similar to what you might think Mr Murdoch packed his vehicle, and we’ve had lots of evidence about the way he packed his vehicle

and the meticulous way in which he did it. And I suggest to you that what she was describing was something very similar to the layout of his vehicle. She did say no tow bar and my learned friend picked up on that, and the statement on Mr Stagg’s notes. But you’ll remember that what she was saying is that she didn’t hit the tow bar on the way out. Now the tow bar presumably sits in the middle of the vehicle, she didn’t necessarily hit it as she went out, slightly to the side, didn’t notice it, therefore, didn’t record it as something that was there. She’s not a woman familiar with four-wheel drive vehicles, she made that clear to you, and she’s an English backpacker and she made that abundantly clear during the course of her evidence. She had to be taken around Alice Springs to find vehicles similar to the one that she was talking about because of that lack of familiarity. What she did tell you was that the colour inside the vehicle, in the front of it, was a grey blue colour, a configuration which you’ve been told by Mr Panozzo is one that was used in Toyota Landcruisers of that period and that was consistent with it, and you can see it I suggest in Landcruisers. There were bucket seats there. The bucket seats were drawn by Mr Stagg in his pictures. They’re very clear, and my learned friend, at no stage, has disputed that there were bucket seats there by the time of the trip that we’re talking about in July 2001. And you’ll remember that the witnesses who travelled in that vehicle talked about 60/40 Toyota seats and that was the common seats that were provided, but you’ve got evidence from Mr Connor who saw the changeover vehicles the following year, of the Magna bucket seats. You’ve got evidence from Mr Hepi, and this is at page 1112, that those seats were put in the vehicle during 2001. He was unable to tell you precisely when it happened, [page 99] but he told you that they were changed, they had been standard Landcruiser seats, a single seat and a seat and a half, the 60/40 that

we’ve talked about and they were changed to Magna seats. He was asked when did that occur? He said he couldn’t remember: Sometime during that year? — Yes. Well, ‘yeah’, in fact is what he is recorded as saying. Now the Crown case is that those seats had been changed by the time that Joanne Lees was in the vehicle and that’s consistent with the evidence you’ve got and there’s been no dispute about that during the course of the case. So when Mr Stagg draws bucket seats, they’re very distinct bucket seats as you can see in the drawings. That’s consistent with the evidence you’ve got before you that they were changed. It is also consistent, of course, with Mr Murdoch’s own evidence generally that he’s changing the vehicle all the time. You might think that bucket seats are more comfortable than the orthodox seats in the front of the vehicle, and that’s again consistent with what you’d expect from Mr Murdoch. 3.14

Wild deals with the evidence concerning Murdoch’s physical appearance and how the Crown puts its case that this fits with the CCTV footage at the Shell Truck Stop. He also deals with Murdoch’s attitude towards other people, and other personal habits and characteristics. The argument seems to be that these features of Murdoch’s persona fit with the other circumstantial evidence in the case and give it an air of reality.

MR WILD: I want to tell you a little bit more about Mr Murdoch, or remind you of it, it’s all in the evidence of course. Mister Murdoch is a big man, you know that, you’ve seen him in court, and you’ve seen him from here to there. He’s 6’5” when he’s standing up straight, he’s measured by Mr Sandry, the police officer, and when he’s standing upright with his shoulders back, he’s 6’5”. Now it’s the Crown case, of course, he doesn’t always stand absolutely upright, and there’s evidence of people who know him that he from time to time has a slight stoop in his shoulders. And if you accept in due course the arguments I put before you that he’s the man in the Truck Stop, then of

course, that man has a definite stoop in his shoulders and you’ll hear of people, I’ll remind you of people who’ve seen that Truck-Stop picture and the video and they’ll identify him as that man with that stoop. Now, that’s significant in that when we talk about the height of the man and this is the height that’s established by Mr Ringrose who does the calculations, there is this variation between the full height of 6’5” and a slightly lower height man who’s stooped. And I’ll explain that to you in more detail when we get to it. Now, we know he’s right-handed, that’s not such a big deal. A greater percentage of you are probably right-handed but nevertheless, if he was left-handed, that would be a distinguishing factor which we could take into account. We know that he’s had work on his teeth and there’s an exhibit about that. We know from many of the witnesses, or all of the witnesses who know the man, that he’s missing a number of teeth and that’s something you could take into account when you consider the views expressed by Dr Sutisno in relation to the observations she makes. [page 100] We know he’s a truck driver, has been for many years. He’s a fourwheel drive vehicle experienced driver. Now, he wants to tell you that he doesn’t drive too fast but the submission that we make to you is that this is a man who could, when he wanted to, drive as far as he needed to and that’s a significant factor. He wears thongs when he is travelling. Prefers to drive bare feet as you’ve heard which is common, you might think, among truck drivers, those that you might know or have heard of and he’s another one of those. He’s a man who, when he gets out of his vehicle, puts his thongs on. You see the man in the Truck Stop has got thongs, I suggest to you. I can see them; I suggest you can see them as well. He’s a man who wears T-shirts under his flannelette shirt. He was asked this in evidence what he wears, what he was wearing, in fact, on

the night of 14/15 July 2001 when it was cold. In fact, I think he said he was freezing. He says: Usually when I run and that — Run being his trips, I assume — I run with the tracky pants that I’m on the drive with, singlet and T-shirt, fleecy shirt. And the question was: Flannelette shirt? — Flannelette shirt, Spicer jacket. So, that’s the clothing he wears and I’ll give you some more information about that in due course because you might think that that’s the sort of clothing that was worn by the man at Barrow Creek — T-shirt and in addition to that, a flannelette type shirt. Sometimes described as a cowboy type shirt, similar to that. He had a Pennzoil cap. He said he didn’t have it very long but you’ve heard evidence that he carried caps in his car. He doesn’t accept that but there was evidence from a number of witnesses to that effect, including Mr Cragan, who you might think was a friend of Mr Murdoch and had stayed and worked with him the year after these events as well as the year before. But not during the year of it. He’s a man with a stomach problem. Witnesses have told you that he would drink iced coffee when he travelled because of that and he agrees with that, buys them in the half dozen I think he told you. He takes amphetamines when he’s driving. As you were told by Professor White, amphetamines heighten awareness, give confidence, ability to drive long distances without the effects of sleep or fatigue, confidence is stronger, there’s energy in arousal. You were told people can drive for 36 hours non-stop without any difficulty. Two or three or four days without sleep. It can produce anxiety and tension, you were told, and people coming out of a trip when they’ve been having amphetamines can appear exhausted and irritable. Maybe as they were described to you by the witness, Bev Allan, as strung out and

stressed. Remember how she described it. The evidence you have from Mr Murdoch is that he took amphetamines perhaps on the Saturday and perhaps on the Sunday but the Crown’s unable to assist you with that because we’re not in the vehicle with him. We don’t know what he had. But that’s what he said. You might think that given his history of using amphetamine and the amount [page 101] he’d used on the other trips, as you’ve heard evidence about that, that that’s a light estimate by him. He’s a strong man, isn’t he, big strong man. Strong views about things. You’ve heard him express them, expresses himself strongly. He’s fastidious, he’s meticulous, he’s obsessive. You’ve seen all those things and I suggest you’ve seen him in court as well as that, behaving in the way you would expect a meticulous, fastidious, obsessive man to be. He’s been a four-wheel driver, as I said, for many years. He doesn’t swerve for kangaroos, he takes the proper view, I suppose, for a driver on the road, it’s safer to go straight ahead than start swerving all over the road, and that’s the instruction he gave to Mr Johnston and I don’t criticise him for that for a moment. However, that’s a demonstration of the view he takes about what he should be doing. Just as a little side issue. He’s had a moustache, I suggest to you, throughout the relevant period. The moustache he had throughout the relationship with Bev Allan, she told you, and that’s between the end of 2000 and July 2001. The significance of that, the Crown says, is that he suddenly shaves it off on 16 July 2001 and that in the context of this case is a significant matter, even though he says to you, ‘Well, I shaved it off and I grew it again’ etc, etc. The point the Crown makes is that this was something he did particularly on this day and it’s also a piece of evidence that is agreed

with by Brian Johnston, the Sheriff and I’ll call him Sheriff from time to time during the course of my address and that’s not meant as in any way a disrespect to him, it seems to be his preferred method of address. So he says that throughout the period that he was travelling with Mr Murdoch, he had a moustache and he told you that he’d shaven it off just before he, the Sheriff, left Broome in late July 2001, 24 July in fact. That in itself being a significant date and I’ll come back to that. Now these passages in the evidence that we’ve heard might tell you something else about Mr Murdoch. He was being cross-examined about Beverley Allan at page 2157. I said: Do you remember Bev Allan? — Yes. You were friendly with Bev Allan for all of that period, were you not? — Bev Allan used to come around and try score drugs off me. You had a friendship with Bev Allan? — Well, it was a one-sided, yeah. She liked you, you didn’t like her, is that what you’re telling us? — It was round about that way, yes. And in August of that year the relationship broke down? — I said it wasn’t really a relationship, it was one-sided and she had one interest. A one sided friendship broke down in August 2001? — 2001. When did the relationship/friendship one-sided or other, start? — Could have been 10 months, could have been 12 months, I’m not sure in that area. He didn’t care. This was a person that was obviously fond of him. He cared little for her. [page 102]

She was wrong about his moustache. He said: ‘She’s wrong on a lot of things’. I asked him about Beverley and Rachael Maxwell — you remember Rachael Maxwell, the Sheriff and Ms McPhail and Mr Hepi who all had said, all of them had said that the mesh had gone from that vehicle after March 2001. And of course it’s a very important issue this. They’d all said that in their evidence. So I lead into it this way: Ms McPhail says there was no mesh in your vehicle. She’s wrong too? — Yes. So that’s four people are wrong, they’re all wrong and Mr Hepi’s wrong. He says there was no mesh at that time too? — There’s mesh in there all the time, Mr Wild, for my dog, Jack. I’ve got a lot more respect for him than all of those people. Now that’s the attitude of Mr Murdoch to people. It’s fine to have a good regard for your dog, as he obviously has, but he doesn’t have the same regard for people, I suggest to you. I asked him about the taking off of the mesh by Mr Johnston. He answered me this way: I’ve told you all along there’s a lot of things I disagree with. One of Hepi’s gophers, Sheriff. Very dismissive of other human beings, very dismissive and that’s the nature of Mr Murdoch. Strange behaviour you might have thought, in the witness box, from time to time when some stress is there or some pressure of some kind. I may have misunderstood this entirely but it seemed very strange, you might think, the response. He’d just been asked, in the previous couple of pages, about the hair ties and you’ll remember, this will be a view that you might have, he seemed to be upset at the suggestion that these hair ties were his and that they’d come from his property. And they were sun kissed, you might remember him saying, and he denied they were his. I said to him, he was looking at a picture which included the hair ties:

Would it help you to have a magnifying glass, Mr Murdoch? And he said: Don’t try that trick on me, Mr Wild. You did that to an old man the other day and it was disgusting, so no, my eyes are all right, thanks. You did it to Vince Docherty the other day and he couldn’t see a date in there, you had to pick up a magnifying glass. My eyes are all right, so yeah, I’m saying good, thanks. Now that was a peculiar response, I suggest to you, and gives you some idea of the way in which Mr Murdoch reacts under what he perceives to be some pressure in these areas. [page 103]

3.15

Wild briefly refers to some of the exhibits — hair ties and cable ties — and what use could be made of them. It was not suggested that these items actually linked Murdoch to the crime, except as minor supporting circumstantial evidence.

MR WILD: Now you can look at those exhibits yourself, the hair ties for example and see what you make of them. In due course we’ll ask you to do that. Exhibit P3 was the hair band that was the packet of the Lady Jayne ones that were identified by Ms Lees as those that she used. Then there is the Exhibit P325, the packet of coloured ones used by Mr Murdoch, so the Crown alleges, those being the ones found in his property. What you make of that is up to you. The Crown puts to you that Mr Murdoch was using a different gauge of hair ties to that that was found on the strap, which the Crown says you can accept may well have been from Joanne Lees, she having lost it during the course of the struggle in the car on 14 July. Now we can’t say it’s exactly the same one obviously, but that’s a circumstance you can make some inference from.

Mr Hepi talked about the cable ties that he said he saw being made at the property at Sedan at page 1130, and that’s a significant matter, you might think, if you accept Mr Hepi’s evidence on that matter. He is, Mr Murdoch, making cable ties very similar to the ones that had been used in this case, and making them at a time prior to the events that occurred at Barrow Creek. An unusual thing to be doing, you might think, they — the cable ties that were used, and you can have a good look at them over there on P176 the Exhibit. They demonstrate, as I said to you earlier this morning, a very meticulous approach to construction and one that you might think is consistent with the way in which Mr Murdoch does everything. There was a discussion at some time, you might recall, with Mr Hepi about burying bodies. Mr Hepi said that Mr Murdoch claimed that a good place to bury bodies was in a spoon drain by the side of the road. That’s a matter for you, of course, as to what you make of that. It wasn’t in relation to any particular case, but it seems an odd thing for a person to say at any time. Just looking at those cable ties again, you’ll recall that there is a mock up which is provided for you in the exhibits. That’s the one I mentioned this morning as having been shown to Mr Murdoch when he retreated from it, as I suggested to you. That took a long, long time to make by Mr. Sandry, and you might recall that Detective Superintendent Kerr also made an attempt to produce one of these cable tie handcuffs and also had a lot of trouble and time involved in it. One of the things that Mr. Sandry also told you was that the cable ties that were found at Mr Murdoch’s property, or at Sedan in any event, didn’t have G codes on them, but there is no evidence of course as to how G codes are set up and to what extent G codes all should have similar numbers of how the packaging is done. But it’s consistent with the evidence of course, that they were different numbers, G code numbers on the ones found at Sedan apparently the property of Mr Murdoch and those that were used in the cable ties that you’ve got to look at. That’s true, they’re different but that may not be of any significance at all in terms of this case.

[page 104]

3.16

In the next sequence, Wild addresses the question of guns and what proper inferences can be drawn from the fact that Murdoch always had a gun with him on these trips. He refers to the evidence of the eyewitnesses and suggests that their evidence should be accepted.

MR WILD: Now there’s evidence, as you know, that Mr Murdoch carried guns as part of his business and you might wonder if the purpose of it was really defensive and in what way they would have been used. Presumably people who carry guns have them available for use. There is evidence that he sometimes carried it in the side door of the car and others at other times. He speaks of owning a 357 Magnum revolver and a Beretta. So you can accept that that’s true and you might assume that one at least or other of his guns was with him on the particular trip that he carried out in July 2001 because he says that he always carried a gun or usually carried a gun perhaps it was. Now Rachael Maxwell saw a silver John Wayne western styled [sic] gun on the table at Sedan with both Hepi and Murdoch present. She told you and she was cross-examined about that and my learned friend gave you the final result of that cross-examination, but if I just read you the questions and answers which were in cross-examination, and you understand the difference between examination in chief and crossexamination, I assume, having watched us for the last six weeks. Now the question was asked in cross-examination: Just finally in relation to this silver gun, could it have been that it was Mr Hepi who had the silver gun? — It could well have been. I honestly don’t know whose it was, it could well have been James, yes. And I guess what I’m suggesting is, could it be if you actually saw a silver gun you saw it with Mr Hepi and Mr Murdoch wasn’t even there? — It could. Well, I’m pretty sure they were both there but yeah.

It might have just been Mr Hepi? — Yeah. Now this is the power of questioning of course, you can get witnesses to say what you want to some extent and what was being said there is the witness has said, ‘Yeah, it could have just been one of them but’ — ‘but’ she says: I’m pretty sure they were both there. I’m pretty sure they were both there. It could have just been one? — Yeah. People agree generally with possibilities when they’re put to them when they don’t have an absolutely clear recollection. Not being asked for an opinion like a scientist might be or an expert, they’re being asked for an opinion, ‘Was Joe there?’, ‘Was it half past 6?’ or ‘It could have been half past 5?’, that kind of thing. People tend to agree with questions that are put to them if it doesn’t do any harm. Perhaps you can follow what I’m putting there. So cross-examination, you can get a response that you want from the question. People don’t tell lies, people can be mistaken and you might think that of all the witnesses that have come there, most of them are doing the best to tell the truth and that’s a fact of life, most people do their best, sometimes their memories are faulty. What they try and do is do the best they can to help the court. [page 105] Then we have the other person who saw the gun, of course, was Julie-Anne McPhail. Now that was a very bizarre whole episode across the Nullarbor, stopping, speed and amphetamines, cannabis, drinking, sleeping, talking, both of them, both people doing those things, Mr Murdoch as well. And you might think, ‘Gee whiz, what an incredibly strange adventure that was’. But why at the end of it does her evidence about the talk of the gun and the suggestions that she had that she wanted to buy such a gun and the offer by Mr Murdoch of such a gun, why is that any more bizarre than the rest of it?

My learned friends would say to you, ‘Well, that’s all bizarre’. The whole thing is bizarre and it happened because Mr Murdoch agrees it happened. What he doesn’t agree with is that which hurts him, which is that which deals with a silver gun. She says there was a silver gun that was fired and he says, ‘No, there was no silver gun, I didn’t see her again after Ceduna’. Well, you’ll have to decide where the truth lies in all of that. But you might think it strange that the witness, Ms McPhail, admits to a whole heap of very strange behaviour and then tells a lie about one aspect of it at the end. So that’s something you’ll have to consider when you try to weigh where the truth lies in that as between the witness who comes from outside this courtroom to assist the court and Mr Murdoch who’s giving his evidence. 3.17

Wild deals with the evidence relating to the various trips made by Murdoch. The purpose of this evidence is to establish a chronology of Murdoch’s movements, to support the Crown case that Murdoch’s vehicle did not have mesh sides under the canopy and that the bull bar was the same as that shown in the truck stop CCTV footage.

MR WILD: Now, I want to just turn to something else to assist you and help your memory in relation to the trips that were done by Mr Murdoch. This is to try and put into context the trip that was conducted on 14 July and what I’ve done is — or we’ve done is prepared a chronology for you which his Honour’s going to allow you to use as an aide-memoire which means you can have it while I’m talking and then you’ll have to give it back. So, my suggestion is — his Honour’s suggestion will be don’t write all over because we’ll all see it. The jury guard will see it, in any event. HIS HONOUR: Ladies and gentlemen, Mr Wild is quite right. It’s just one of the rules we have, whether it’s right, wrong or indifferent doesn’t matter. It is one of the rules that an aide-memoire of this nature goes to you while Mr Wild is addressing you and then you must return it. So if you need to make notes, make them on something you’re not going to have to give back.

MR WILD: I’m not sure your Honour’s got a copy of this version. HIS HONOUR: No, not yet, thank you. MR WILD: One is coming, your Honour. HIS HONOUR: Thank you. MR WILD: Ladies and gentlemen, the document you have in front of you starts off with the year 2000. Although it’s headed 2000–2002, there’s a couple of entries right at the end in 2004 which won’t trouble you a great deal. The dates set out on the first page indicate the times during which Mr Murdoch was working at West Kimberley Diesel during 2000. You have these set out for you in exhibit P240 and I’ve [page 106] just extrapolated them here to show the sort of dates he was working and the times he was working during that period. You’ll see from it, that he’s not working full-time by any means and there is a time during August, September, October for him to be doing trips to South Australia. The evidence from Mr Cragan is of one trip that he did with him and you might remember he said it was in the hot part of the year. Mister Murdoch, in his evidence, indicated it was in the latter part of the year and you can try and work out for yourself when it is. It was on the Tanami. They went down and back. This is the trip that Mr Cragan said, in cross-examination, took 24 hours on the Tanami. You might have some doubts about that, but that’s the evidence he gave in crossexamination about this trip and I think Mr Murdoch adopted that. You’ll see that on 10 October Mr Murdoch applied for the lease at Forrest Street, Broome, where he was to live for the next 12–15 months on and off between trips. There’s a note that he did a return trip with Darryl Cragan and that’s the one I told you about. Now, Mr Cragan of travelling with the dog in the back. They had the F100 — not at that time. It wasn’t purchased until later in the year, so he travelled with him in the 47 series which

you’re all very familiar with by now, I would think. So that’s the vehicle which had the mesh on it and the older canopy. So that return trip was done. Mister Cragan talks about stopping at self-service places, truck stops and purchasing things like coffee and water and other items, filling up with petrol or diesel. Fuel, I think, we’ll use as an expression. In December or November, over the page, the F100 was purchased and registered and you’ll recall, from Mr Duthie’s evidence, that it was purchased from one of his other customers and you’ll recall what subsequently occurred with that vehicle, the canopy was shifted over from the Toyota — and it was the same mesh one we’ve heard about, with mesh fittings on it for the time being. We’ll deal with that a little bit more carefully in due course. Mr Murdoch was still employed at WKD during the first half of January up until 18 January.10 Thereafter, he did not work there and was fully employed — you might say — in his other business of doing his road trips backwards and forwards. Now during this period, and for another little while, WKD did work on Mr Murdoch’s vehicle but didn’t do any after about the end of March and you’ll find that in your exhibits as well. So then in June he ceased working. He commenced his business with James Hepi at about this time. The evidence you have indicates that the trip to — trip or trips to South Australia at the end of 2000, were done preparatory to entering into a business with Mr Hepi, but were introductory to him. So by January he had made contact with Sheriff and in February he did his first trip to Sedan and back with the Sheriff as his co-driver. This may have been the trip where they had the disagreement with the kangaroo. So they were at the property in Sedan during this month, in Mr Hepi’s property and they collected the cannabis for the return trip. You might remember that when Mr Cragan went with him the previous year, they had only gone to Adelaide, they didn’t go to Mr Hepi’s property, they only went to Adelaide and found their business contacts in that part of the world. We know that they returned from that

trip on 26 February because the vehicle went across the border control from South Australia to Western Australia. One of the things that’s difficult in this case to establish clearly, is precise movements of people because as you’ll have noticed, this [page 107] was a cash society that we’re dealing with. They were not using credit cards, so the chances of tracing exact movements are very difficult. It may not be so relevant in some areas, in others it might be more helpful if we had some record of when people carried out transactions. We do have a receipt, as you know, for Joanne Lees’ petrol stop, but that’s because it was provided by her. We do have a receipt from the Shell stop of the goods sold at 12.48 whatever, on 15 July 2001, but we don’t have a corresponding credit card entry or whatever, because it’s a cash transaction. And the same applies of course to Mr Murdoch’s transaction that he talks about as having occurred at the Repco earlier in the day because it was a cash purchase. All right, now on 26 February we’ve got them both back in Western Australia, crossed the Nullarbor on both occasions. There’s then a further trip in March, we don’t have the date because as Mr Murdoch told you, you don’t necessarily have to go through the check point in Ceduna, it’s just as easy to skirt the town and miss it altogether. So we have to assume that’s what happened on this occasion because there’s no record of it. On 13 March11 we know that Mr Murdoch purchased the 75 series and you’ve got photographs of that taken by the previous owner and exhibit P244. Between 13 and 20 March the tray and canopy of the F100 were transferred to the Toyota and this is the period during which we suggest to you, the mesh gates were removed from that vehicle at Sedan and stayed there ever since. There’s strong evidence we suggest to you, from Mr Johnston, in respect to that and from a number of other witnesses who travelled in that vehicle subsequently and they say there were no mesh gates on it at that time from then onwards.

So on 27 March Mr Murdoch is in Broome and effectively he’s carrying out the arrangements for the registration of that vehicle in Western Australia and it becomes 1AWR520, which is the registration number we know from then onwards during the rest of the relevant months and the one that is recorded from time to time at the quarantine stations. In April, Mr Johnston moves to 67 Forrest Street with Mr Murdoch and Mr Hepi comes shortly after. Mr Murdoch’s Toyota, on 10 April, travelled from Broome to Sedan passing through Ceduna on this occasion. Mr Johnston, Sheriff, wasn’t with him on this occasion. There’s no material before you as to whether anyone was present. A property manager inspected Forrest Street on 18 April, Mr Murdoch was present. That’s consistent with him then being in South Australia and thereafter returning from Sedan. So we don’t have any details of the travel to and from except that he left — he did travel across on 10 April, we don’t know when he came back or which way he came back, for that matter. It’s up to Mr Murdoch to tell us and he did a lot of trips and he can’t necessarily tell us all the travel. Sometime before 17 April — or perhaps before I go to that. During April, Bev Allan travelled from Broome to Wyndham and Kununurra with Mr Murdoch. They passed through Fitzroy Crossing, you remember, and she met the Jamiesons there on that visit and she says on that trip there was no mesh on the vehicle. Now that’s consistent with it having disappeared in March in accordance with the evidence of Mr Johnston. So it’s the Crown’s submission to you that you should be satisfied on all the evidence that as from March12 that mesh had disappeared — not on the vehicle. [page 108] On 17 May, IAWR travelled through Eucla to Western Australia with

two passengers and a dog and that’s the reference that you’ll find in exhibit P309. And this clearly, on the evidence, is the trip that was — that Rachael Maxwell did with Mr Murdoch. She travelled with him to Norseman, where she was picked up by Mr Hepi, who was her friend at the time, and Mr Murdoch continued on down to Perth where he bought the tyres for the vehicle which I suggest you can see are similar to the tyres on the vehicle in the Truck Stop, Sunraysia tyres, identified as such by Mr Panozzo in his evidence. Mister Murdoch, for that matter, agrees that they appear to be Sunraysias. So Rachael Maxwell, when she travels across — and that’s on 17 May — that’s in the middle of the trip no doubt. She says that her bag, her overnight bag was thrown in the back of the Toyota by lifting the canopy, the canvas part of the canopy just behind the passenger’s door, it was thrown in there. Exactly the same lifting effect that was described by Ms Lees in respect of what occurred to her. Lift up the corner of the flap and throw it in. There’s no mesh there, nothing to prevent that happening. That’s the evidence she gave and that’s the same person that gave evidence that she didn’t know whether Mr Hepi or Mr Murdoch was responsible for the silver gun. That was her evidence in this case. Now there’s then a trip that Mr Murdoch and Mr Johnston carried out from Broome to Sedan and they used the Buchanan Highway. This was in May according to Mr Johnston. One of the things about Mr Johnston, you might remember, he gave his evidence over there and he was slow and deliberate and he thought about the questions and I suggest to you that he was as honest a witness as you could ever have. There he was and he thought about everything very carefully and then he provided you with the answer. He was not shifted on crossexamination by my learned friend in respect of any issue. And in particular, on the issue of these mesh sides, I’m going to give you a little bit more detail about that later, but he was very strong on that. He’s also the witness, you might remember this — he’s also the witness who tells you that the bull bar had changed before he left town. He left town on 24 July, he says that bull bar had changed before then, and the bull bar that it was changed to is of the same configuration

that we see in the Truck Stop. Now he’s a very significant witness, Mr Johnston and because, in our submission you’ll find him to be a witness of truth, he will be of great assistance to you in considering the issue that my learned friend has raised for your consideration this morning. They are important issues, but in the Crown’s submission they’re matters that you’ll be able to resolve consistently with his evidence and our submissions to you. Now you might remember that Mr Johnston said that on the way south on that trip down the Tanami — sorry, not the Tanami — they wanted to go on the Tanami, it was closed at that time, so they came down, and they came across the Buchanan, Dunmarra and then down to Alice Springs, and they stopped at the Shell Truck Stop, the first one on the right as they came into town. I think Mr Murdoch was prepared to agree that they might’ve done that, that’s a matter that you might remember. Mr Johnston told you that on that trip, they got back using the same return route, up the Buchanan, up the Stuart Highway and across to Buchanan in one day and 19 hours, 43 hours. He told you that they used amphetamines during those trips and that’s how they managed to stay awake and drive long distances, and that’s entirely consistent with all the evidence you have, I suggest to you, about Mr Murdoch’s driving methods during the whole of this time. And he told you that when they stopped they bought coffee, iced coffee and water and ice at the stops. All consistent we suggest to you with what the man at the Truck Stop did on 15 July. [page 109] Now we know that Mr Murdoch attended for an eye test in Broome on 13 June. Then there’s some phone calls. Phone call records help us because they tell us where the phone’s ringing from. Mr Murdoch, as you know, had a phone in the name of the Sheriff, the Sheriff who bought it for him because he didn’t want phones in his name because they tell people where you are. And of course, now we’ve got the

records they are of some assistance in that regard, as showing where phone calls are made from and where to. It’s the trip that’s on the top of page 3 in 5 of your notes that describes the trip across the Nullarbor with Julie-Anne McPhail and of course her trip and the route taken is supported by the material that’s contained in the various exhibits, in particular her receipts from it and her bank records. So you can follow the trip from the 19 and 20 and of course, the documented part of it supports her story. The part that is not accepted by Mr Murdoch, is the part which can’t be documented, which is that that deals with the pistol, the revolver. So he admits, as it turns out, the rest of that bizarre bit of behaviour but that’s the part he doesn’t admit. It’s seems that there is then a return and you’ve heard that Mr Murdoch could do return trips within about seven days or so, three days one direction, and a day or so collecting, three days back, that kind of thing, two or three days travelling. And it seems there is a return as well between 20 and 25 June and we can work this out from these phone calls and you’ve got them all there if you want to do that exercise. Then we know that after 4 July he returns to South Australia again and on my calculations and as I put to Mr Murdoch when I was asking questions, there were seven trips including the Cragan one, between the end of — I’m sorry not including the Cragan one. There were seven trips between February and July of 2001. ‘Too many trips, Mr Wild.’ He couldn’t confirm that was right or not. A lot of trips, a lot of trips. So, then we know that on 20 June, Mr Murdoch telephoned Rachel Maxwell and you heard her evidence as well, that he came to visit her on that trip and there was the return between then. And then on the 25th — sorry, after 4 July, he came back on the trip which was to lead, we suggest to you, to the events that you’re dealing with here. 3.18

Wild addresses the evidence concerning the camper-trailer, especially the evidence from Jamieson, who was called as a Crown witness. Jamieson also gave evidence that the vehicle had mesh sides

at that time. Wild submits that Jamieson should not be believed for various reasons and even goes so far as to suggest that ‘there is a bit of manufactured evidence’, which he later withdraws. He presents calculations to show that Murdoch could easily have made the trip to Fitzroy Crossing from Alice Springs in the times indicated by the evidence. MR WILD: On 9 July he purchased the camper-trailer. Now, the evidence about the camper-trailer we’ll have to look at that more closely but the only evidence apart from Mr Murdoch that the campertrailer travelled on that trip is that from Mr Jamieson. Mr Jamieson’s his friend from Fitzroy Crossing, you remember, and there are aspects of Mr Jamieson’s evidence you might regard as somewhat suspect. He was the man who thought that Mr Murdoch was a mobile mechanic, you remember. So, we’ll need to look at that a bit more carefully. The trailer could just as easily, in our submission, have stayed at Murray Bridge nearby or it was registered at Murray Bridge, stayed at Sedan and taken over at some later time. [page 110] Now, there is then, on our document for you, 15 July is the Truck Stop episode and we’ll need to examine that carefully, of course. On 25 July also, between 18.00 hours and 21.00 hours, Western Australian time, and this is according to the evidence of Mr Murdoch and Mr Jamieson, he arrived at Fitzroy Crossing. Now, you’ll bear in mind that those hours need to be adjusted for Central Standard Time. The reason that you do that is to see just how much time he had to do the trip and that was something that we discussed earlier in the case. So, in actual fact, the Central Standard Time was 19.30–22.30 so it extends by an hour and a half, the actual elapsed time that Mr Murdoch would have had or the man in the Truck Stop would have had, just to put it neutrally, would have had to get to

Fitzroy Crossing that night. So that means that there was, in fact, at least 18 and a half, at the limit, the lowest end, 18 and a half hours or 21 and a half hours to get to Fitzroy Crossing and on the figures that we put to you from the other witnesses, plenty of time to do that trip at that time on those days. Not two months earlier or two months later but at that time. This is the other evidence you’ve got. MR WILD: Ladies and gentlemen, I said to you before the break that you might not accept Mr Jamieson as a witness of complete truth in respect of various matters. I’d like to remind you of the telephone conversation he had with Mr Murdoch that you’ve heard, and you’ve got to listen to again if you wish, in respect of this matter. He was telephoned by Mr Murdoch who said to him: ‘Has Jan got in touch with you?’, Jan Pitman, a lady friend of Mr Murdoch’s: ‘And told you what to say?’ is effectively what he was putting and Mr Jamieson said that he’d spoken to the police officer. He said: ‘I’ve spoken to that cunt, Jason’. Now this is a witness that you’ve been asked to accept as a witness of truth, by my learned friend, and I suggest you might have some doubts about a man who talks about police officers in that way. And you might not be impressed by that and I would submit to you that nor should you be. The only person, apart from Mr Murdoch, who can put that trailer on the back of his vehicle at that time, is Mr Jamieson and you should have some very significant doubts about the worth of his evidence. One of the other things that he said, you might remember, was that the mesh was still on the vehicle. He’s one of the people that say the mesh was still on the vehicle as at that time and the reason he knew the mesh was on the vehicle because he saw it got lifted to let Jack out. What was Jack doing in the back of the vehicle? Jack travels up the front with Bradley Murdoch; he doesn’t travel in the back. So you might think there’s a bit of manufactured evidence there as well. So I invite you to treat Mr Jamieson with a great deal of respect, in the sense of not believing his evidence where you have some doubt about it and I invite you to have doubts about his evidence.

Now it’s probably true, however, that Mr Murdoch passed through Fitzroy Crossing that night because we know that he was in Broome at about 4 o’clock in the morning, because we have the phone records there and I’ve just itemised them for you. The phone calls to Mr Hepi and the calls made to Mr Hepi at 4.00 am or thereabouts. You’ve heard what happened thereafter. Now we therefore know Mr Murdoch is in Broome. I’ll ask you to, again, treat all that evidence about his travel movements between Alice Springs and Broome with some doubt because of the time it takes, but we’ll analyse that shortly. He’s at OPSM collecting his glasses on the Monday morning. Afterwards he visits Beverley Allan, according to her evidence, in those next couple of days and I will come to that again in a moment. He collects the batteries from Mr Brett Duthie, you remember Mr Duthie who is his friend at WKD who’d ordered the batteries for him [page 111] and you’ve got the invoice addressed to Mr Hepi, and the evidence that the batteries were collected and they were for the two vehicles driven by those two men, Mr Hepi and Mr Murdoch, heavy duty batteries. We then got a visit to Barred Creek and that’s significant. You know why it’s significant, because in those pictures you can see the vehicle without any mesh on it. The story that Mr Murdoch wants you to accept is that he took them off by himself, sometime between we assume 16 and 25 July. The Crown case to you is that that’s a complete lie, that he did not do that, that they were gone three months or more before that. The only evidence you have that they were there on that time is his evidence, the fact that he took them off. There’s no evidence from Mr Jamieson for example because when Mr Jamieson sees the vehicle at Barred Creek, it doesn’t have the mesh on it. Mr Jamieson claims it was there on the 15th, the Sunday night, but as I’ve suggested to you, you shouldn’t accept that evidence. Fishing trip and, important, because it shows the car without the

mesh, I suggest to you. Mr. Murdoch was at Anne Street the day before they went on that trip and the only real relevance of that is that you can see a picture of him there with shaven face. You can see it in the back, just behind where Mr Docherty was standing in the picture. That’s the one that’s got the date 24 July on it, which some of us couldn’t see, but some of us could. All right, so 27 July Mr Murdoch is back in Broome and has the tray of his Toyota extended and we’ll deal more with the detail of that in due course. There’s a new exhaust fitted to the Toyota, a new canopy fitted, and this is the big new bonanza that’s fitted in August. There’s a renewal of the lease in September. Some of these matters are of lesser importance. On 2 October, you remember Detective Howard coming to Forrest Street and speaking to Mr Murdoch while another officer was speaking to Mr Hepi and there was quite a bit of discussion about the turbo which had been fitted to the Toyota by Mr Murdoch. And you might think that’s significant, this is a man who was used to just plodding along the highways and the byways and the back roads, and here he is fitting a turbo to his vehicle, perhaps to iron out some of those corrugations on the road. There was a routine property inspection in January and it seems as if Mr Murdoch had left the premises by January 2002, and as you know there was a bit of travel towards South Australia by that time and he was eventually living there at that time. I won’t trouble you with the two other dates in respect of the medical examination, it’s just a confirmation to let you know that Mr Murdoch had some dentures at some point, and had them by 2004. 3.19

Wild deals in detail with the evidence of identification of Murdoch from the truck stop video, beginning with the lay witnesses who knew him well. Strictly speaking, the evidence from those witnesses who knew Murdoch well and claimed to recognise him on the video was not evidence of identification, but evidence of recognition. However, as we will come to see, probably for good reason the trial judge did not see it that way, principally because, apart from Hepi,

none were able to say that it was in fact Murdoch, only that for various reasons it looked very much like him. Wild begins by shoring up the credibility of these witnesses.

[page 112] The defence. I’m going to talk about the Truck Stop in a little detail in a moment, and about the evidence of various witnesses about the Truck Stop and about the Truck Stop video. Evidence of Dr Sutisno, evidence of Mr Ringrose and evidence of friends and acquaintances of Mr Murdoch who identify him from that Truck Stop video or pictures. And there’s quite a deal of evidence about that and it’s important, a very important area in this case I suggest to you. Before I do that, I just want to touch very briefly on the defence experts that have been called, and I do this in a generic way, I’ll just talk about them generally. When I deal with each of the issues that they address in this case, then I’ll need to refer more specifically to them. For example, Dr Both speaks about the DNA. When I come to the DNA, I’ll mention in specific terms some of the matters that she addressed. The defence called three eminently qualified, experienced and distinguished expert witnesses. They added precisely zilch to the defence case. They took nothing away from the prosecution case. That’s our submission to you. You’ll have noticed during the trial, as I’ve said to you earlier, the defence had all the material that we’ve got and they have the chance to examine it and if we provide expert material, they can look at it and report on it and consider it. And for that matter, they can come with their witnesses and sit in the court and listen to all the evidence, which is something other witnesses can’t do you’ll understand. So witnesses come in one by one, they can’t listen to the evidence before they get here because they’d be tainted by it. Expert witnesses have that advantage. They’re allowed to listen and comment and

instruct and then give their evidence, and that’s what happened in this case. Now we don’t have copies of their reports because it’s a one-way traffic, that’s the way it works and we accept that it probably should be so. The Crown provides the material; the defence sits back and snipes away. Now what happens in a case like this, should happen, is that the arguments that are going to be put get put to the witnesses so they’ve got a chance to answer them. So if Mr Ringrose is in the witness box he’ll be asked questions which will then be answered and supported by the defence witnesses in due course. That didn’t appear to happen so much in this case. So the opportunity was not always there for us to respond in advance to what was being put. You will see where the gaps are and you will take that into account when you consider the value of the evidence given by the defence witnesses.13 Professor Spring is an example of this, and he appeared a man with a slightly North American accent, very fine man he appeared to be and distinguished and qualified. You might remember he said that the quality of the video was so poor that you couldn’t even tell whether the man had a moustache. Now as I suggested to him at the time, we’d been sitting here for six or seven weeks and we’ve all seen the video many, many times, and I suggest to you that you can see a moustache. Maybe you don’t see it on this view and perhaps you don’t see it in the back of his head, but you see it when the man’s walking in and you see him walking backwards and forward and you can form a pretty good view about it. You can see, I suggest to you, that he’s got thongs on and other details. Professor Spring wasn’t prepared to make any of those concessions. Maybe he’s got a cap on. And I pointed out the peak, ‘Maybe there’s a cap there’, kind of thing. So bear that in mind. [page 113] When Dr Sutisno gave her evidence, it was never suggested to her, for example, that you couldn’t even see the man had a moustache.

Now there was criticism, as you know, of the quality of the videos. You’ve seen the videos and okay, they’re not perfect, they’re not what you’d watch on the home video if you were watching a movie, but they’re still videos that are useful and have been proven useful in this case. Even Dr Henneberg — you remember Dr Henneberg — he could see the moustache and that was the one thing he could see, ‘There’s a moustache’. Maybe it’s a man, maybe he’s clothed, but that’s what you have to confront. So neither Mr Ringrose nor Dr Sutisno was told, for example, that Prof Spring couldn’t see even a moustache. So they weren’t able to answer that in advance. They gave their evidence and I suggest to you that you’ll accept their evidence for what it was. Now, if it is as bad as he would suggest, then you will have some difficulty in accepting on the other hand, you see, Mr Murdoch’s assertion that he could see flared mud flaps and different exhaust pipes and a different angle on that bull bar to what other people have seen and a fuel tank, whatever. So it works both ways. If the experts aren’t supposed to see them and neither can he. So, bear all that in mind when you are dealing with these expert witnesses. They all seem to be older; I don’t know if this is familiar, than the ones we called. And whether they’re not happy that younger people are coming forward, I don’t know what that might be but maybe that’s just in my mind. So, I want to talk about the Truck Stop now. I’ll come to that point later because it is relevant, I think, the age of some of the people here and new science. New science, hmm. Worried about new science. The Truck Stop. Now, it’s a very important piece of evidence, isn’t it, in this case. Now one thing you’ve got to remember is that the fact that the man at the Truck Stop is or isn’t the murderer, is not the end of the argument. It may be, as my learned friend said, that the person at the Truck Stop came there from somewhere else altogether. Didn’t come south from Barrow Creek. May not be him.14 And yet the way this case has been conducted, Mr Murdoch has vehemently said the whole time, ‘It’s not me at the Truck Stop’. And I suggest to you it’s because he’s

conscious of the fact that if you accept that it is him at the Truck Stop, that he is in the frame for the Barrow Creek job. That’s the way I suggest to you that the case has been conducted by the defence. So, it becomes even more important as an issue in this case.15 Now, he’s denied that it was him through his counsel, through the whole of the prosecution case. He’s denied it in conversations with people with the exception of one person. And he has denied it on his oath here. The Crown suggests to you that it’s a false denial. He’s not telling the truth about that. And he’s not telling the truth because of a consciousness of guilt of the Barrow Creek offences. That’s what it is. And I invite you to find that that’s what it’s all about. [page 114] Now, my learned friend says things to you like he wouldn’t have driven in to the Truck Stop with a body in the car. Well, maybe he wouldn’t. We don’t know that. It may be your view that if Mr Murdoch is the offender, that’ll be a view you come to at the end of the case, that he may or may not have driven in to the Truck Stop with a body in the back. Sounds like a dangerous thing to do but maybe his confidence level is of such [sic] that he was prepared to do it. On the other hand, there was plenty of time, you might think, between 8 o’clock and 12.45 or 12.38, I think, is the nearest time. Lowest time. To get from Barrow Creek which is only 300 km on a derestricted highway. Three hours, we could do that in easily, you might think, if you had to. No traffic of any kind. Still leaves him an hour and a half to do what he had to do. That assumes 8 o’clock was the starting time. Might’ve been a bit earlier, might’ve been a bit later. Well, now, how is the Crown to prove it was Mr Murdoch at the Truck Stop? A number of ways we do that. Firstly by calling witnesses who knew him well, who look at that Truck Stop and have given evidence before you that, in their opinion, it’s him. And it’s not one witness or two, it’s a handful. And you know from the feeling you’ve got listening to the evidence in this case, that the whole of Broome was abuzz when

this newspaper was published with the picture and earlier, no doubt, when the other pictures were released publicly. People, as Mr Murdoch himself said, were thinking it’s him. Mr Hepi, of course, takes it a step further. Says that eventually Mr Murdoch agreed that it was him. Now, Mr Hepi, you’ve been told, was a special kind of witness in that he has a genuine dispute with Mr Murdoch, which might make it likely, so they say, that he would tell lies on his oath.16 Well, you have to decide whether you think that’s true, bearing in mind that in a number of instances he did not give evidence that would have hurt Mr Murdoch. You might think therefore that he was telling the truth about all sorts of matters and in fact all these matters. Mr Algie, my learned friend, said that you might think that he was still using his get out of jail card. Now we know that that was his offence — his offence was in May 2002, that’s three and a half years ago. He’s out of jail, he’s been out of jail for three and a half years, so he’s not still I suggest to you, using a get out of jail card. That’s long used, if it ever was related to the evidence he was going to give in this case, which didn’t become the subject of a statement17 as you heard until September, in any event, of 2002. So, in our submission, you can discard that and you can treat him as every other witness on his merits in the witness box. ‘Is he telling the truth? I can see him, I can see the way he’s answering the questions. Do I accept that answer or not?’. And that’s your job of course, and that’s why they’re all sitting there, right there, right in your face so you can make an appreciation of them. And I suggest to you that Mr Hepi, although he’s got a checkered background as we obviously all know, nevertheless was a witness of truth that you could accept in this case and that’s a matter — I think my learned friend would say — a matter for you in due course. [page 115] What I wanted to tell you about in particular, in this area, was the

witness Beverley Allan again. You might remember at the commencement of my remarks to you, I reminded you of what Beverley Allan was said, was said to her by Mr Murdoch on 16 or 17 July, when he first came home from this trip. And he’d had something to deal with, you’ll remember. Now Beverley Allan, you might think, was a very honest witness. I suggest to you that she gave her evidence in a forthright manner and was fair to Mr Murdoch and told her story without, again, embellishment. She clearly had been fond of him, and I’ll demonstrate that for you in a moment. Mr Murdoch, in his evidence, said she was wrong about a lot of things in her evidence. But in fact the only matters that she was attacked about or cross-examined about was whether the mesh was on the vehicle when she did the trip in April and she was very strong about that, and whether or not he’d had a moustache at all times, and she was strong on that as well. I mean she’d known the man very closely you might think, she stayed over at his house she said, between that period and he always had a moustache. That’s her evidence. Well now, let’s take you through some of the things she told us, to see if this helps you with appreciating the way in which she dealt with this issue of recognition. So he told her that he came back — this it at p 1185 — he’d come back a different route. He said he had to come the longer way because of roadblocks due to looking for Mr Falconio. Why was that, why was he coming back a longer way because of roadblocks due to looking for Mr Falconio? Was he in front of that, on his story? Or is he really saying, ‘There would’ve been roadblocks and I would’ve had to avoid them because I knew what had happened because I’d been there’. Is that really what that was about? How would he know about roadblocks when he was up the Tanami, miles away, as he says? I asked this question: The next few days was Mr Murdoch unwell? She said he was. Did you provide some TLC in that respect? — Yes. What did that take the form of? — I went down with the Vicks

and Berocca and gave him a rub down with the Vicks. Did that improve his health? — No, apparently not. Now this is the woman who is only going there for one thing according to Mr Murdoch and whom he regarded as not having a relationship with. A friendship I think would be much too strong a word for him to use. That’s the way he regarded this woman who was obviously fond of him. I asked her about what clothes he wore. You might think this next bit is significant. She said in cooler weather — I asked ‘in cooler weather’. She said: Cooler weather, jeans, work boots, you know, pull on elastic work boots, flannelette shirts. Flannelette shirt, you said? — Flannelette shirts, peak caps. Are you able to tell us what colour flannelette shirts? — One in particular, a cream and black padded shirt. When you say cream and black, do you mean stripes or what? — Checked. [page 116] Then there was talk about a Pennzoil cap. Now I want to take you to something completely different. Exhibit 274 — and you might need to look at this later if it’s of interest to you and I commend it to you — is the notes taken by Issy Cummins, Isobel Cummins, police officer, when she took instructions on 15 July 2001 from Joanne Lees. And she took instructions about the man that they were about to do the comfit of. This is what Exhibit 274 says: In vehicle driving alongside. Black baseball cap. Shield motif. Yellow border around it.

Have a look at the Pennzoil cap. Collar length. White with lots of grey. And you might think that’s the hair, not shoulder length, collar length, that’s what she said. Long or ovalish face. Longish face, narrow. Ovalish face, isn’t that what Dr Sutisno mentioned, ovalish face? Cheeks sunken. What does that sound like, who said that? Doctor Sutisno. Eyes deep set. Who has got deep set eyes? Eyebrows black and grey streaky. Moustache black and grey, down past mouth. Forty five plus age, medium complexion. Tall. Cowboy look. Wore T-shirt, dark coloured. Checked shirt over top. Who wears T-shirts and checked flannelette shirts over the top? Checked shirt over top, possibly black and white. Black and white checked shirt ‘over the top of a T-shirt’. Who wears those sort of clothes? Heavy duty trousers, canvas or jeans. Stocky build. Didn’t remember him having fringe. Dark circles under eyes. Who does that sound like? It sounds like Bradley Murdoch, doesn’t it? Exhibit 274, have a look at that when you get the chance. Now at page 1187, she had a conversation with Mr Murdoch about the newspaper and that’s the Western Australian that you’ve seen as exhibit 249, Tuesday edition. Picture of a card and a man.

Who drew your attention to the front page of the newspaper? — He did, I hadn’t seen it. [page 117] What did he tell you about it? — He pointed out differences on the back of the Landcruiser. What differences? — I can’t remember what they were. Said it couldn’t have been him because he was actually towing a camper-trailer at the time. So he’s got that as part of his story at that time already, p 1187. At p 1188: Was there any discussion of the picture of the man? — He told me that it wasn’t him on the front of the paper. Did you at that stage form a view about that picture? — Yes, I was fairly convinced that it was him at the time. Why was that? — Because of the way his whole body posture, you know, his stance. When you know somebody you know someone. Exhibit 25318, picture of the man coming into the Truck Stop. Did he tell you at that time the route he’d taken back from South Australia on that last trip? — No, he didn’t, except he’d taken a different route to the one he’d first planned. What do you think was the route he’d first planned? Do you think he planned to go up the highway, straight up? And then he had to change his mind because of the matter he’d had to deal with? Do you think that’s what happened? Was there any further discussion at that time about that article on that night? Only that his father had rung him and he’d told his father also that it wasn’t him on the front page.

His father’s ringing him, saying, ‘Hey, you’re on the front page.’ ‘No, it’s not me, dad.’ Now, when the witness gave evidence, she was challenged about that and yet when Mr Murdoch gave evidence, you might remember that he conceded that there was an occasion there may have been a group of people, not just Beverley Allan, around the table at which he told them that his father had rung. So it gives some credence to what she says, doesn’t it, if it needs any more as I suggest you’d accept what she says anyway. So that’s exhibit 25319 is the one she looked at. And then at p 1190, she’s asked again about that exhibit: What do you say about that man? — I think it’s Bradley Murdoch. His Honour didn’t hear the answer: Sorry, I didn’t hear that answer? — Yes, I do believe that’s Bradley Murdoch. Is there anything in particular that makes you say that? — With what he’s wearing, the way he holds himself, the hat. [page 118] And then she looked at 25420 which is that one of the man walking out of the shop, remember the back view, and: What do you say about the length of the hair shown in that picture? — I’m not sure, it just looks like him to me at the time. So, there’s a pretty positive identification of admittedly what’s a poor photograph but there’s more to it than that, isn’t there, there’s a style and a stance and a holding which that witness regarded as being Mr Murdoch and many others who saw it thought the same. And you might think in the context of this case that’s a pretty important piece of

evidence. Now, identification as you’ve heard from me and you heard from my learned friend, and his Honour will give you the proper and full direction about these matters, is always a thing that you need to carefully consider. And it’s why it’s important that I reminded you this morning, of the evidence that Ms Lees gave about that concentration between her and the man in the face over a period of time. And then when you then think of someone who knows somebody well, and in this case had a relationship by whatever name over a period of at least seven or eight months, and they spent time in the same house as the person, then the evidence, I suggest to you, starts to have a great deal more credibility. You’ve got that evidence from Beverley. And you’ve got it from other people as well and in due course we’ll come to it. 3.20

In the next section Wild deals with the evidence of Dr Sutisno and the evidence of Prof Henneberg on the subject of facial and body mapping. He points to some areas where the experts agree, but submits that in areas of disagreement Sutisno’s evidence is to be preferred.

MR WILD: But, what I want to talk to you now about is Dr Sutisno. Now we called Dr Sutisno as you know. She gave evidence there for a day or two. Young woman, highly qualified, I suggest to you already. She’s a consultant forensic anatomist and she has done work, because of her reputation, in Indonesia, Bali and in Jakarta, Java, on behalf of the police there, helping identify bodies, suspects, in Bali bombings. She’s well regarded I suggest to you. She has careful methods and she explained them to you very comprehensively. You’ve got a video from her which is Exhibit 258 which you can look at later, that explains her work. And during the course of it, we went through it with her, she explains her definitions and you’ll find those in Exhibit 257 and what she does, and she describes for you, morphology, which is shape, structure, character form, face. And

morphology analysis, and this is important, which is also — you’ve got this document — morphology analysis is facial and body mapping — that’s her subtitle to it. And it is the feature by feature approach to evaluating faces, heads and bodies. It involves the comparisons of two images, one from the crime scene and videos generally and one of the suspect. It involves subdividing the face, and you heard the way she described that, subdividing the face, head and body into components to obtain a thorough qualitative [page 119] analysis and determine visual similarities or differences. Now that’s how she describes it and the definition is there for you to see. Now, Dr Henneberg was very dismissive of her, new kid on the block, doesn’t use the same methods as him, and yet when we examine that carefully it turns out that they’re using exactly the same method, except she has some different computer systems. Because when we got to it, you see, she described what she did in these terms and this is at page 1287, your Honour. I was asking her something about her work, and she said: I’ll take one step back. It actually first came out as photographic comparison, then dubbed face mapping or facial mapping and by incorporating analysis of the body, it is face and body mapping in this case. Now, Dr Henneberg called it photographic comparison, she was calling it morphology analysis, face and body mapping. So, he was critical of that change of name, he’d been calling it something else for 20-odd years, but it’s an established scientific method and procedure and they were both doing the same thing. It’s just when it came to it, she was seeing more than him, and that was his criticism you remember. Now she uses her knowledge of anatomy to identify people from

remains — this is the work she does in Bali and other places, but also live people. So she compares the CCTV footage with an alleged suspect and she does precisely the same work that Dr Henneberg does. He, as I said, calls it photo comparison and that sort of led to some disagreement between them, but really it was on his part with respect. So what she did in this case is that she was sent the CCTV footage from the Truck Stop and asked to look at it and see whether or not it was of sufficient quality for her to do further work. So she wasn’t sent everything at once. Here’s the suspect, here’s Bradley Murdoch — well the Truck Stop — here’s Bradley Murdoch, put them together. It wasn’t done like that at all, she looked at the Truck Stop footage and said, ‘Yes, I can make out enough details here to justify you sending me some more material which I’ll need’, and it will be material which tries to stand a man in the same position and assists in that regard. ‘So I need further material so I can then do the comparison.’ So that was the stage, now you might remember that Dr Henneberg said the same thing, when he gave evidence. He said, ‘I always call for the stuff first, I don’t want any bias, I just want the video footage’, and he seemed quite surprised in cross-examination when I said to him, but that’s exactly what Dr Sutisno did, he said, ‘Oh’, he was surprised, you might remember when I put that to him. ‘I hadn’t realised that.’ He’s sitting in court the whole time, had her report, but hadn’t realised she was using the same method. So what she does, she analyses the footage, sees whether there’s enough material there, unlike Professor Henneberg and unlike Professor Spring who couldn’t even see the moustache, and she said, ‘Yes, there’s sufficient material there, I want further material’. So she called for the further material and she was given it. It took a month or so to get it. Then she did exactly the same thing as Dr Henneberg, and she has the two images, CCTV, she has the still images taken of Mr Murdoch and she compares them feature by feature. So where is the dispute about methods? The dispute is what she sees that he can’t see, that’s what the dispute is. The difference might be in the actual computer system she uses, you might think, and also in the fact that she was looking at the images on the screen as well as —

Henneberg, sorry — looking at the screen with a magnifying [page 120] glass as well. So it was a different exercise being conducted by this young person and Professor Henneberg couldn’t see it. So she had the material and she used the same method, except she used a thing called the MGI video wheel that Professor Henneberg wasn’t familiar with. There it was. So when I asked him about it — I’d have to, I’m afraid, go to this — I said to him: She did the comparisons that you talk about? — Yes. Item by item and she reaches different views to you. That’s right, isn’t it? — Yes. She sees different things to what you can see? Do you agree with that? — Well, actually she could see a lot of things I can’t see. Now he’s actually being critical saying that they weren’t there, I think, but that’s how he answered it. He was asked: I extracted still images and enlarged and brightened and contrast where necessary’. Did you do that? — No, I got the still images but I never manipulate images. He said [sic]. Now I said enlarged and brightened, he answered manipulated. Well, that’s not what I asked him. She went on to say, and I asked this question: ‘Did it require you to use any magnification process? — Yes. So basically in terms of extracting it would use or I use the MGI video wave software.’ Are you familiar with that? — No. He said [sic]. Not familiar with what she’s doing. Goes on: The usage of magnifying glass helps enlarge it without

breaking more of the pixels. So she’s saying, ‘I used the magnifying glass because it doesn’t affect the pixels’. ‘I get a better view of it with one of these magnifying glasses here without causing a problem?’ — Yes, but it doesn’t bring out any additional detail. There’s a difference between you, isn’t there. She says it does? — If she says so, that’s her opinion. Do you use a magnifying glass? — No. Do you recall Dr Sutisno saying that when she enlarged these to A4 size, she lost quite a bit of detail? — Yes, I recall that. Now do you remember when we had the big pictures up there, that’s what he was looking at, saying you can’t see anything, but she wasn’t using those to do her research and to do her comparisons, she was using the ones on her computer screen and with the assistance where necessary of her magnifying glass and that’s how she was doing it. She explained all that to you and apparently Dr Henneberg didn’t follow that. [page 121] His Honour was asking her about it and she told the jury — and this is me asking him a question: Yes, these for demonstration purposes — Demonstration purposes — — of what I did, but in fact I had better images because I had these smaller ones which I was looking at with a magnifying glass? And the professor said to me:

Well, I was saying the same this morning when I said that the smaller image sometimes is better, so I don’t think we disagree. Do you follow what I’m putting? She was saying something and he was saying to me, ‘Well, that’s — I agree with it’. And I said then: I know, exactly my point, professor. So what it amounts to is that she can see more than you can and she had different methods that she was using in coming to the conclusion she did? — Well, she may have been looking at images differently. That’s the end point we got to. She’s looking at different things to him and getting results that he couldn’t get and that’s where we finished up with Professor Henneberg. Now you might remember he was asked by his Honour this question — and he had all the pictures, he’d had them before and he had them up there on the boards. His Honour asked this question: Does the accused have a flat back posture? You might think that’s an anatomical description of something. And the answer: Not in my opinion. Well not particularly so. I believe I observed photographs and as far as I can tell his back, yet again, is not very distinct. The question his Honour asked: Leaving aside whether it’s distinct, Dr Sutisno explained in terms of the curvature of the spine what she meant by a flat back posture. And you remember her doing that: In your view does the accused possess that type of curvature or are you unable to say or does he not possess it? He’s got the pictures there and he says:

Well, I’m unable to say quite honestly. And I think he left the witness box fairly soon after that. [page 122] Professor Henneberg, I suggest to you, wasn’t of a great deal of help. He came here to criticise Dr Sutisno and criticise her methods and ended up saying: Well, she’s looking at something different. I don’t understand the MGI software, I’m not familiar with it. She’s doing something different to what I did and I didn’t see what she saw. Well, that’s no help to you at all. Now what Dr Sutisno did say — and I’ll just finish if I can, your Honour, on this area — she found the following significant identifying features with no dissimilarities. She compared many features and described some distinguishable features of this man, these two men. The question I asked at page 1279: Did you find some distinguishing factors specific to these two subjects? Meaning the man in the Truck Stop and Mr Murdoch — and she says: What consists of the distinguishable features, first that sunken overceding upper alveolar region. And you remember all of that evidence about the upper lip consistent with no teeth. We have the habit of placing the hand on the hip and side bending the torso. We have matching distinctive gait. We have matching distinctive hairline pattern and a flat back posture.

Which is the matter which Prof Henneberg couldn’t work out. And I asked her what her conclusion was. She said: I will read it out: The multiple numbers of features match, which includes the most noticeable or recognisable features, the distinctive unique identifiers, the habitual characteristics and racial traits indicate the level of identification is the same person. Now that was her scientific view after explaining to you how she got to it and doing the comparison. The final area here is the superimposition which was done. Now Professor Henneberg wanted to tell you that that was all rubbish, but he didn’t follow, I suggest to you, the methodology. The methodology was to do the analysis first, the comparison of the two subjects and then, having satisfied herself that there was a match, she then did the superimposition which you’ve seen for yourself and I suggest to you it’s very effective as demonstrating the similarities, the likenesses. The two figures, in each case there’s a number of them, you’ve got them on the video, they all move seamlessly into the one. I suggest to you there’s no suggestion of force in that exercise. You see it happen very simply. A matter for you to consider but in our submission to you you’ll have no difficulty in accepting that that’s the case. Now as far as Professor Henneberg is concerned — and we do have this disagreement along the Bar table about what we see here — but I suggest to you when you look at [page 123] his exhibit which is D9, I think, his series of superimpositions, I suggest there was some laughter at it. Now perhaps I’m wrong about this, but you could see very clearly that one man was being forced into the other

man, he was smaller and as the exercise was being conducted, he moved into match with him by forcing the two images together. No such thing, I suggest to you if you look at the superimposition CD which is Exhibit 260 of Dr Sutisno. By all means compare them, I urge you to do so, and you’ll see that hers work and his don’t. And it’s our submission to you, and we concede that Dr Henneberg is not the man at the Truck Stop, but our submission to you is that Bradley Murdoch is. Ladies and gentlemen, still talking about the Truck Stop. A couple of more issues I wanted to raise with you this evening and there’ll be more in the morning, I’m afraid to say. 3.21

As part of the argument concerning whether or not Murdoch was at the Shell Truck Stop, Wild refers to the evidence about the conditions of the Tanami Track and the speeds at which it was possible to drive safely on the track, in an effort to prove that Murdoch could have reached Broome by 4 am on Monday morning.

MR WILD: I wanted to remind you about the trip up to Tanami and the distances and the time because we’ve provided some strong evidence for you in relation to what’s a reasonable time to make that trip at the relevant time. And we suggest to you that it indicates that the plodding trip that Tommy the Tourist21 made is nothing like what could be done and can be done by a driver who has to get from A to B at that time. So we were able to provide to you two witnesses who between them had a very good current knowledge of conditions on the Tanami at the time. One of them is a road inspector and that’s Mr Stanes. Remember Mr Stanes gave evidence. And then we had Mr Hall, Steve Hall, the police officer who was on duty at the very time and was sending his troops up the Tanami on jobs related to this very case. So we’ve got very current information and assessments of the time that are appropriate. Now, I’ve just used some round figures here and you’ve got your maps and you can do the precise mileages if you want to. You’ll remember we gave you a simple map which is Exhibit 305 but it

doesn’t have the mileages on it. It just gives you directions, really, to give you some assistance in that respect, but I’ve used these rough mileages because the total trip is said to be within this compass. Alice to Yuendumu, 300 km. Yuendumu to the border, 400 km. And the border to Halls Creek turnoff, another 400 km. They’re round figures, as you’ll appreciate. 1100 km so it’s often said there’s 1100 of the Tanami from Alice to the Halls Creek turnoff. And then it’s a further 300 km to Fitzroy Crossing and that’s on the bitumen, obviously, on the Great Northern Highway and another 400 km from Fitzroy down to Broome. So there’s another 700 km. Total trip, 1800 km. You and I may be a bit frightened of doing that in a day or so but they’re the sort of mileages that truck drivers are used to and fourwheel drivers are used to and Mr Murdoch was used to and, in particular, he’s a driver with an extra skill that you don’t have which is the ability to stay awake for long times and we know why that is. [page 124] So, what you have is Mr Stanes who’s the road inspector who told you that he’s a conservative driver. And, of course, usually he’s driving at 60 to 70 km because he’s stopping and inspecting things. But he told you the speeds that could be travelled along the Tanami as at that time because he, in fact, did a trip at exactly that time and he was inspecting the roads in exactly the days that we’re concerned with. On the 17th, he’s up the track, up the Tanami. And he gave you this estimate that from Alice to Halls Creek, would be 14 and a half hours to the border. I’m sorry, 14 and a half hours would be a reasonable time for that trip and then Mr Hall gave you a figure — sorry, your Honour, that was at 17.23. And then Mr Hall gave you an estimate of 12–15 hours for the trip and if you add a little bit and round it off, and I’m using generous figures here, Mr Stanes would have you getting to Halls Creek, 18–20 hours and Mr Hall 16–18 hours. They’re realistic and reasonable times given their estimates. Mr Hepi said that he could get from Alice all the way through to

Broome in 16–20 hours. That sounds a bit extravagant you might think, given these other estimates, but bear in mind that he’s a man with a purpose and maybe he could do that. But we needn’t concern ourselves with that kind of speed, we’re only concerned with getting to Halls Creek — sorry, getting to Fitzroy Crossing within the times, and what I’m suggesting to you is that the Fitzroy Crossing 18–20 hours is Mr Stanes, and 16–18 is Mr Hall. I think I may have said before to Halls Creek, but I’m putting these figures on their estimates as the time to get to Fitzroy Crossing. So 18–20 for Mr Stanes, 16–18 for Mr Hall. So let’s use the outside of all of those and say 20 hours. 20 hours to get from Alice Springs to Fitzroy Crossing and that’s the outer limits of their estimates. And we’re talking here actual hours, actual hours. So on those figures, 20 hours is the limit, that allows plenty of time to stop, mess about with your dog, go to the bathroom do all the things you have to do on this road at that time. That would enable you to get to Fitzroy Crossing 20 hours after 1.00 am is 21.00 hours Central Time, Central Time. So 1 plus 21 is 9 o’clock Alice Springs time. So in fact there’s extra time if in fact the person arrived at 9.00 pm in Fitzroy Crossing time, it’s then 10.30 pm in Alice Springs, so it’s an extra hour and a half, so you’ve got to get there by 9 o’clock at night, you’ve got 21 and a half elapsed hours, which is much greater than the estimate. And that assumes you haven’t got somebody chasing you or you’re concerned about someone chasing you and some need to get there. What Mr Murdoch has told you is that he took this enormous amount of time to do this trip and he slept for some hours on the Sunday morning on his version. So he tells you he couldn’t have done the trip in the time, but in fact even he could’ve done it if he hadn’t slept so much or stopped so much or rested so much as he suggests to you. The Crown position is that he had plenty of time, on the evidence you’ve got from two — dare I call them experts — expert drivers, fourwheel drivers on that road at that time. Now Mr Murdoch says, ‘I can’t believe that a grandfather would drive on that road with his kids’ and whatever. Well, Tommy the tourist mightn’t I suppose. If you’ve got a

need — and I think his Honour asked this question at some point. If you’ve got a need to get from A to B you can do it, the vehicle can do it, it’s built for it, that’s what he’s got if for. His idea is to get from Alice to Broome eventually as quick as he can, not to plod along as he keeps telling us. So there it was, could be done and on the Crown case, that’s exactly what he did. Now just remember this as well if you would. On the estimate that’s given by Mr Murdoch — he doesn’t exactly tell us what time he gets there, somewhere between 6.00 and 9.00, maybe it was 8.00, whatever, it’s Western Australia time — he then had to get on the timetable we have to Broome by 4.00 am. We look there at 9.00, he still [page 125] had seven hours to drive the 400 km down to Broome on the Great Northern Highway, bitumen road, speed limit 110 kilometres an hour. I used the expression ‘do it on your ear’ I think at some point and I hope you understand that expression. Do it easily. You would have to drive — forgetting how many stops you had — at less than 60 kilometres an hour to take seven hours to do that trip. I suggest to you if you are travelling down that road at 60 kilometres an hour, that’s the time you’ll be stopped, not when you’re driving normally, at 100, 90. So there is plenty of time for this trip. We only know that Mr Murdoch got to Fitzroy Crossing between 6.00 and 9.00 because he says so and Pete Jamieson says so. We don’t have any receipts for their petrol, we don’t have any credit cards. It works both ways, doesn’t it, not having credit cards and not having some proof of where you are and what you’re doing. He’s got no receipts, nothing. He tells us the time he gets there. We don’t know. But all of these allowances are made on the basis that he and Mr Jamieson have got it within the right frame. If they haven’t, if he didn’t get there till 11 o’clock at night, there are another couple of hours he had to travel and then he still would have had plenty of time to drive the 400 km down to Broome.

The total time between 1.00 am, Alice Springs time, and 4.00 am the next day, is 28 and a half hours. Twenty seven hours plus an hour and a half for elapsed time. He had 28 and a half hours to get from Alice Springs to Broome and Mr Hepi can do it in 16–20. Well, maybe that’s really flying, but he had an extra big margin there, didn’t he. As I say, we only know what time he got to Fitzroy Crossing because of what he and his mate Jamieson say. I think with respect we can put that issue to bed. We don’t have to worry about the time. He had plenty of time that he could have done it and he was an experienced fourwheel driver driving on the Tanami when it was in reasonable nick. And whether he had a trailer on or not, some trailer which he may have put off the vehicle at some other point — and we’ll talk about it in the morning or not — it wouldn’t have made a great deal of difference and he could have flown over those corrugations as any other experienced four-wheel driver would do, including I suggest, members of this jury. You know how to drive on corrugations, you don’t drive at 20 km an hour, you drive at a reasonable speed. In effect, fly over them, and that’s what I suggest he would have done and knew what to do. 3.22

Wild explains to the jury how the amount of diesel fuel purchased at the truck stop fits the Crown theory.

MR WILD: Now, your Honour, I’ve got one other matter I can deal with today, just quickly. The amount of diesel that was purchased by the man in the Truck Stop. You’ve got Exhibit P270 which is the receipt from the Truck Stop. It’s in your book there. The man at the Truck Stop purchased diesel fuel, I think purchased 117.56 L, which is more than fits in most of your cars, I suspect. So it’s somebody who’s got an enlarged tank of some kind. Not surprising for a four-wheel drive, I accept that. But nevertheless it’s one of the factors you might bear in mind. This is a man at the Truck Stop, if it is Mr Murdoch, who has got to travel 1400 km, which he can do, he’s got that range with his long range fuel tank and his petrol. So he’s filling up. The reason he’s filling

up you might think is because he’s just spent 600 km worth of his diesel driving up to Barrow Creek and back, and he’s filled up at the BP in Alice Springs at 2.00 pm that day, and he’s driven up the track up to Barrow Creek and [page 126] thereabouts, and done a few little twists and turns, and back down to Alice Springs, he’s got 600 Km empty fuel he has to fill up. So he fills up, I suggest to you. Exhibit P270 demonstrates how much, and he buys crushed ice this man, this man, I suggest Mr Murdoch, and he buys spa water and he buys iced coffee which we know he drinks and he pays cash money, $136. And up the road a bit and Jack no doubt gets out and has a walk. And you will see in the video — and my learned friend relies on this too — is that the man who deposits his purchases after them, puts them in the right-hand side, back driver’s side of the canvas, flicks it up, in it goes, no mesh in there of course. That’s what my learned friend relies upon as well, because there was mesh, therefore it couldn’t be done. The Crown says there was no mesh in that vehicle and that’s why it could be done, and that’s Mr Murdoch’s vehicle. 3.23

Wild next deals with the identification evidence from the staff at Brown’s Service Station and at the Aileron Hotel, and why the jury should not act on this evidence even though it was called by the Crown.

MR WILD: Ladies and gentlemen, sometimes in trials the Crown calls evidence that it’s ambivalent about, to this extent. You’ll know that in this case we’ve called some witnesses that have told you that Peter Falconio is not dead and he was alive a week or so after the events at Barrow Creek. Now I’m going to just analyse that evidence for you and indicate why

it is that you may not accept it, notwithstanding the Crown has called it. I’ll also refer to the evidence of the sighting of two people in a Kombi at Aileron on the afternoon of 14 July in the same vein and explain to you why you should or shouldn’t accept it, should have some doubts about that evidence. Now having said that, yesterday I spoke of the witness Peter Jamieson, who lives at Fitzroy Crossing, and I suggested to you that you shouldn’t accept his evidence and in respect of two matters. Now I don’t resile from that but in the course of it I used the word ‘manufactured’, he manufactured evidence. Now I resile from that. I don’t ask you to accept that he deliberately manufactured or fabricated evidence in respect of this matter. He wasn’t given any opportunity by me or by anyone to answer that allegation and it would be unfair for you to accept that that’s the case. However, I still put to you and invite you to find that he is wrong about the evidence he gave, two matters in particular, one that he saw mesh gates on that vehicle, and that they were open to let the dog out, and for the reason I told you yesterday — the dog didn’t travel in the back when Mr Murdoch was travelling just with Jack. And second, you should have doubts about whether he in fact saw the camper-trailer on that trip. Now they’re the two issues but I withdraw, as I said to you clearly, the allegation or suggestion or invitation — which was how I actually phrased it — that he’d manufactured that evidence. It’s an unfortunate turn of phrase I used. Now I want to deal with the Aileron sighting first, if I may. You will recall that there was evidence given that three people who were working at the Aileron roadhouse on the afternoon of 14 July saw two people, a couple, who came in, in an orange campervan — sorry, a Kombi and that they were identified subsequently as being or perhaps being Joanne Lees and Peter Falconio. [page 127] Those people’s estimates of times varied quite a bit, and the best you

can get really from looking at all their evidence is that the so called sighting was between 3.00 and 4.30 pm on the afternoon of Friday 14 July. Now the reason for the discrepancy there is they all have different memories, one of them in fact says it was somewhere between 3.00 and 4.30, another one says 4 o’clock and another one says about 4.30, so there’s a variation through there. Anne Floyd gave evidence, she said the woman had shoulder length hair, light brown, with a light blue long sleeved top, and that was her first and best memory, a long sleeved top. She didn’t see much of them, you might recall if you can recall six weeks ago. Mister Oatley said that the man didn’t speak English that well, the girl had an English accent. She was 5’ 1, 5’ 2. People’s estimates of heights are pretty average you might think when you think of all the estimates we’ve been given in this case. She was wearing a blue or black summer dress, well, that’s not Joanne Lees obviously enough as we know it. He gave them some brochures and postcards, now they weren’t found in the Kombi driven by Peter Falconio and Joanne Lees. The man had an Italian accent, according to Mr Oatley, had a foreign appearance. And you’ve seen photographs of Mr Falconio, he certainly had an Italian sounding name, maybe that’s where the suggestion come from, but he doesn’t have an Italian accent you might think. No suggestion of it, you’ve heard his brother speak in the witness box, his father has a slight accent, and you heard him. Mr Dick said he had short cropped dark hair, he was Italian Greek or something. A look about him, now you’ve got photographs of Mr Falconio, you can have a look and see whether you think you would describe him in that way. So he thought that it was Peter Falconio and Joanne Lees and so did Mr Oatley, but I suggest to you, they’re wrong. Ms Floyd didn’t really know and couldn’t say who they looked like precisely, thought perhaps that they were the people, they’d been [in] an orange Kombi and that’s really the linchpin isn’t it. We’ve got evidence that there were three orange Kombi Vans up the Stuart Highway near Alice Springs that day, this was one of them. It wasn’t the one driven by Joanne Lees and Peter Falconio, and you’ve got Joanne’s evidence in respect of that matter and you’ve got the

evidence in particular, that they stopped at Ti Tree to fill up with petrol. Another 62 km up the road from Ti Tree, so it’s very unlikely I suggest to you they would’ve stopped at both places, stopped to eat, as apparently these people did and then fill up with petrol 60 km further. And it’s not what they said they did. Joanne Lees’ evidence is they had been to the Red Rooster after the Camel Cup and if you accept that, then why are they stopping the next town up the road for more stops and foods. So that’s the evidence there. It’s only, as I say, it’s 133 km to Aileron, you’ve got your maps there, and it’s 62 further to Ti Tree. So it’s some help. Now we had another sighting and this is of Peter Falconio on 22 July 2001, which is Sunday a week afterwards. And this was said to be in Bourke and at a time when, on the Crown case, as you’ll understand it, Mr Falconio was deceased. In any event we called these people so that you can assess them and [it] becomes, as my learned friend says, a matter for you, whether you think that on 22nd Peter Falconio was alive as a result of this evidence. And it’s a matter of fairness that you should have it and consider it. And you’ll bear in mind that the police officers have told you there were a number of sightings and alleged sightings and they were all investigated by the police and found to have no substance, otherwise they’d all be trotted out in front of you. This one is marginally worthy of your attention. So it will be a matter for you to consider. [page 128] You’ll remember Mr Brown, the tall man who gave evidence and Ms. Kendall, his partner. Now I just want to outline their evidence briefly for you so you can get a comparison of it. Now on Ms Kendall’s account, Mr Falconio was with a man who was alleged to have been his murderer or abductor the week before. She described a man similar, as she understood it. The photo in the Sunday Telegraph of that day was an example that she used. That was the Sydney Sunday Telegraph.

Neither Ms Kendall nor Mr Brown had seen Mr Falconio in real life before this at any time, so they weren’t sighting someone they knew, which is a significant difference, you might think, in identification cases and in the identification which was led in this case. People who know people from previous experience are better able to say ‘I know that person’. So if you see one of counsel in the street, you’re likely to recognise us, you’ve seen us day after day after day. But if you see somebody who has been in the back of the court, the first time, one day only, you’re less likely to recognise them in the street the day after or to be able to describe them. So remember those things when you’re considering this evidence and other identification evidence that you’ve heard in this case. Ms. Kendall said that the man would come up to Mr Brown’s chin. Mr Brown said up to his nose. Well, that’s not much difference, it’s only a few inches. That’s the sort of difference you might get with different views of things. Ms Kendall said he had a shaved head with dark stubble growing through. Mr Brown said he had blonde or sandy hair, which is about the same length as his own, which was, as you remember, reasonably lengthy hair. Both said they had a stocky build, the man had a stocky build, and you can have a look at the pictures of Peter Falconio that you’ve got and see whether you agree with that. Ms Kendall said the man had a fair complexion, Mr Brown said it was white. That’s very extreme in fairness. Ms Kendall didn’t notice any accent, Mr Brown said the man had a slight accent. Ms Kendall said it all happened in the afternoon, it was still light. Mr Brown said it was just on dark at around 6.00 pm. Ms Kendall said she served the man. Mr Brown said he served the man. Ms Kendall said that once both men had left, she went and told Mr Brown who was in the kitchen washing the bain-marie. Mr Brown said that when he came out, Peter Falconio was still in the shop. And he called him Pete, you remember, very familiar, but that was his style. Ms Kendall said that the vehicle was parked in the laneway, she could only see the back half of it. There were two people, both went around the passenger’s side, drove away. Mr Brown said the vehicle was not in the laneway and he drew a picture for us, Exhibit P13,

showing where the vehicle was. Ms Kendall thought the vehicle was not a four-wheel drive. Mister Brown thought it was. Ms Kendall didn’t see any dog. There was a second man. Ms Kendall said that he was about her height, that is up to Mr Brown’s shoulders, was shorter man than the man she thought was Peter Falconio. Mister Brown said the second man was taller by 10 cm. Ms Kendall says she saw the pictures in Sunday Telegraph. Mr. Brown wasn’t sure what paper he saw, you might remember. And they’re examples, I suggest to you, of incorrect identification by these people. Well meaning, all these people. As the people at Aileron were. They’d come forward in response to police requests for help but they’re wrong. And you heard their evidence. Contrast the matters I put to you and you’ll be satisfied that these events didn’t occur. Now, the second series of sightings at Bourke are fairly significant in this case and if you found that that evidence is accurate. I invite you not to. Then that’ll have a [page 129] significant effect on your views about this case. Inconsistent, I’d suggest, with the rest of the evidence. However, the Aileron matter really doesn’t matter in a sense. If you accept that these two people, the Italian person and the woman with the dress, on one view, were Peter Falconio and Joanne Lees, it’s possible they could’ve got between there and Ti Tree in the time and so what, you might think. But the Crown invites you to reject that evidence, not on the basis of any falsity but on the basis that the people just got it wrong. And that can happen. 3.24

Wild returns to Murdoch’s dog, Jack, as another piece of circumstantial evidence in the case. It is not put that Jack was identified by Lees, but Wild draws upon the similarities between her description as given to the police and the dog itself.

MR WILD: I want to talk about something a little bit similar to that. And it’s something that I meant to tell you yesterday and it’s about Jack the dog. Jack the dog we’ve been calling him throughout this case. Now, Jack, by every reference that my learned friend makes to him, is not a pure bred Dalmatian. You can see it, I suggest to you, when you look at him. And you heard Mr Johnston say, a man who had some experience with dogs, not that that really matters much in this context, that he was a — he used the word ‘mongrel’, that he was not a purebred dog. And he used the expression, ‘He is a Dalmatian blue heeler cross’. Now, that’s not a significant thing. Blue heeler, that’s been running around in this case. That’s not such a significant thing. The name, the title. But you might think it’s significant in respect of the style of the dog. And then you see the pictures of him, you might think that he doesn’t look like one of those soft and furry hundred and one Dalmatians. He’s got spots, naturally. He’s got lots of white colour. But he’s got a nice, big, strong chest and a nice big strong head. He’s a good looking, strong dog. But he doesn’t look, I suggest to you, like a purebred Dalmatian. Now, that’s one thing about him. Now, you have to bear in mind again that Ms Lees has seen this dog as she comes into the front of the car backing in looking at Mr Murdoch, I suggest to you, or the man, the bad guy, my learned friend calls him. And that’s where her concentration is. She doesn’t see the dog for a long time. And it’s an impression thing that she has. Now, we know a bit about Jack, don’t we? We know that he’s not a mad barking dog. He’s not an aggressive dog. He’s a good dog. People like Jack, he’s a good dog. And I suggest to you that the way the dog behaved in the front seat of this vehicle is exactly how Jack would’ve behaved. Backs up, sees his owner coming in and as you remember was said to you by Beverley Allan, ‘Jack wouldn’t bark or carry on if Mr Murdoch was there’. So you bear that in mind. In effect all Jack did, a good obedient dog, was back off, make room, make space for what was to occur. So when you were asked to say that this could not have been Bradley Murdoch because his dog is

not a dog that appears in a Dog-a-Log, identified by Ms Lees some time later as the result of — as my learned friend might put to, suggestibility about the name of the dog — you’ll consider the terror — I described this to you yesterday, and the way in which the whole of this event occurred. [page 130] Now you might remember that she — the blue heeler name from her perspective came from meeting Tex the dog at Barrow Creek that night. And she said that’s the sort of dog. Now you look at the pictures again and see what you think about an impression which Ms Lees might have got in seeing Tex and recalling the dog she’d seen in the car and what she remembered about it. One of the things she always says of course, is a short haired dog, short haired dog. It’s clear enough isn’t it, Jack is a short haired dog. Other people own dogs and other people who drive up the Stuart Highway own dogs as well, bear that in mind. Just before I turn to that, my learned friend indicates that Ms Lees said, ‘Jack is the dog’ when she sees this picture of him. That is not her evidence, her evidence is it’s very similar, Jack is very similar, he’s the same size ears as Tex, the width of the dog she talks about, and you might think she means the barrel chest appearance of him and the colouring, the general colouring similar to Tex, Jack. And that’s where she gets the identity from. And all of that comes from the front of the car, being pushed in, in this terror situation that we talked about yesterday, and I hope you recall. Now I just said there’s a vehicle up the Stuart Highway with a dog in it on this day Mr Murdoch was on the Stuart Highway at one point at least, even on his story he’s there between Alice Springs and the Tanami turnoff. He’s certainly in the vicinity, on the Crown case, he’s the man but he’s up the Stuart Highway with a dog and other people that might’ve been on the Stuart Highway on 14 July didn’t all have moustaches, didn’t all have guns in their vehicle, they didn’t all drive

four-wheel drives. They didn’t all have what you might think is a slightly stooped shoulder effect, so there’s a lot of coincidences there for you to consider. And the Crown’s submission to you is they’re not coincidences, they are part of the circumstantial case. The circumstances that you can use in relation to Bradley Murdoch in finding that he was the man. 3.25

Wild deals with the expert evidence which purports to measure the height of the person shown in the CCTV footage and compares it with the height of Murdoch, to support the conclusion that it is Murdoch shown on the footage. A similar exercise was also done in relation to the dimensions of the canopy.

I want to turn to something else. You heard from a witness, David Ringrose who was the police officer, the forensic officer with the Australian Federal Police. You’ve seen his video enhancement a number of times, it’s exhibit 251. I suspect you might have another look at it yourselves in due course. Now he explained to you what he was asked to do, which was to analyse the video to determine the height of the man and the dimensions of the vehicle, and in particular the dimensions of the canopy area. He explained how he did it to you, the enhancement process, he visited the Truck Stop himself and took measurements and he examined the system used to record the footage. They weren’t things that Prof Spring did, you recall. He didn’t actually visit to firm in [up] his view about the [un]satisfactory nature of the video footage, although he gave more general evidence. Now after Mr Ringrose had done that research, he returned to his laboratory, he used his computer software, which a number of our expert witnesses have done, and he constructed a 3D model. You know the model, you’ve seen pictures of it, and that’s in P283, a representation that he’s — a 3D and a 2D model. [page 131]

His results from all that work are set out in exhibit 284 and you’ll recall that there were two separate cameras that he used in respect of the person’s height and he came to two results. You’ve got it at 284 but I’m just reminding you of it, you can have a look later. Two results, 1908 mm and 1903 mm and he then explained to you that he used a variation percentage accuracy up or down 3% because the nature of the work he does, he can’t be absolutely precise, does the best he can with the measurements and material he has. So there’s an accuracy variation of plus or minus 3% and he therefore gives you a range from one of the cameras, camera 8 in the shop, image 1, the first image — two images, 1851–1965 mm. And from the second one, 1846–1960. So the range is 1851–1960, 196 cm that equates to, which of course is Mr Murdoch’s height according to Mr Sandry’s evidence, 196 cm. So a couple of matters that he told you which you should take into account. First he measures the man that he sees. He doesn’t measure a man standing up with shoulders back and head back against a measuring stick. So the man in the Truck Stop, as you will see, I suggest to you, is slightly shoulder stooped. So he measures on that basis. So he doesn’t stand him up or enhance him in any way, he measures him as he is. So it’s a man slightly stooped and I suggest to you you might take the view that a man slightly stooped is not at his full height unless he stands up as I’m doing now. That’s the first thing. The second thing, he then did the measurements of course on the vehicle and he found that the vertical upright — remember this, this is exhibit 284 and then the pictures — the representations are 283. The vertical upright on the canopy was not entirely perpendicular within the tray. And that’s consistent, on his view, with the frame structure being inside the tray and creating a slight angle inside the tray. So it meant that he couldn’t get quite a true result on his evidence. Now the results he provided to you for the canopy length, which seems to be an area which is in dispute here — so I won’t trouble you with the other figures at this stage. The canopy length, the result was 2355 mm with a plus or minus 5% because in this case he’s got the problem with the exact perpendicular standards that he’s using and he says that the range there for — this is something you could do yourself,

I suppose — plus or minus 5% with his Honour’s calculator is 2237, 2473 mm. So that’s the range he gives. I’ll come back to that in a little while when we’re talking more about the Truck Stop vehicle itself and the identification of it, because as you know from yesterday, Mr Murdoch’s counsel gives you some different figures and indicates that the figures of Mr Ringrose are acceptable but show a difference. I’ll come to that in due course. Now the argument is, as I understand it from my learned friend, that the calculations have a problem in that although Mr Ringrose says it’s plus or minus 3%, my learned friend suggests that it should be minus rather than plus. In other words the figures are being overstated in some way and of course the point of that is that my learned friend would prefer the man not to be 196 cm, but some shorter height, because it won’t fit. Now bear in mind what I’ve already said to you that the man in the Truck Stop is slightly stooped and therefore is going to be shorter anyway than a man standing up straight, so that’s one thing. Now the other thing is when Mr Ringrose was questioned about this, he said he was not comfortable in stating that he could have been overstated given all the variables that operate. Now he’s the expert, he’s asked a question by my learned friend and he stood firm on that evidence. In his view the plus or minus that he saw and calculated for you was accurate so you’re entitled, in our submission, to accept those figures as being accurate and to operate on that basis. Accepting those figures and what they do, in our submission, is indicate that Mr Murdoch fits within the range, that’s all it seeks to do. [page 132] It’s important though, because you’ll remember Mr Head, my learned friend reminded you of this yesterday. Mister Head was the man behind the counter, said that the man that he was serving was 175 cm, that was his estimate and once again as I’ve said to you about 10 minutes ago, people’s observations of height can be quite different

and quite wrong, and I suggest to you that Mr Head was wrong when you compare him to the expert who is measuring and using the mythology that Mr Ringrose was and you should accept what he has to say about that and should prefer him. Now I should make some further comment here about Professor Spring. He explained to you all the technical aspects of the process by which the Truck Stop video came to be recorded and his evidence was interesting you might’ve thought. He explained to you the conversion system and he did, you’ll remember talk about artifacts. Artifacts, you could see things there on the screen that didn’t exist, that was in that context that I think his Honour may have asked him about a moustache and I you might remember was critical yesterday of Professor Spring in that he couldn’t see a moustache and I suggest that we can all see it. Maybe I’m speaking only for myself and not others, but my submission is we can all see it there. On that basis you might think that any criticism from Mr Spring, Professor Spring is not well justified in this case. Certainly Mr Ringrose had no difficulty on his view in doing the measurements that he did, because he’s not of course concerned with facial expressions or moustaches in any event, but he’s concerned with heights and measurements. So presumably there was no complaint about the way he’s done his work. 3.26

Wild explains away the evidence of Ms Southerden about the registration plate number which had ‘333’ in it.

MR WILD: I want to move to something else akin to it. It was suggested to you yesterday, that you should — I think this was how it was put — accept that there was a number plate on this vehicle with the number 333 on it. Now you’ll remember how this comes about — these cameras don’t record registration numbers, so the staff — something that I hope none of us have to worry about, about sneaking off from petrol shops, but they don’t and they’re not intended to cover your registration number.

So what was happening this night, and both Mr Head and Ms Southerden did this, they went out and took numbers. So while the person is filling up, they’re just taking the number just in case the person doesn’t come in. If the person does come in, they throw it in the rubbish bin because surplus to requirements at that point. And that’s what happened on this night in respect of this particular vehicle. They both think they took numbers or one of them thinks they took numbers, but they were discarded. Now some month or more later, Ms Southerden, who as you heard, suffers from night wakeness, can’t sleep well, had this recurring number coming up in her mind and she’s an insomniac, she says, and the number she came up with [was] 333. Now she didn’t know whether it had anything to do with registration numbers or anything, but she told the police about it and it turns up in her statement she made. So she’s asked about it and she said: I woke up in the middle of the night thinking about all sorts of things and I had this recurring number coming up and wondered whether that was what it was. I actually did ring the Alice Springs Police Station and reported it then. [page 133] This is at page 1376: and report that then. I can’t tell you what date that was. I have no idea whether it was relevant or not, I have no idea. The number was 333. At the time when the police came and saw you on the Sunday night, that’s the night after, did you have any recollection of the registration number of the vehicle you’d seen? — No, I didn’t, not then. Then she’s asked this question:

How long after the night when the four-wheel drive was in the Truck Stop was it that you remembered these numbers from a number plate? — I don’t even know if it is a number from a number plate, it’s just that about three nights in a row these numbers just kept popping up in my head, I wondered if they were significant, so I mentioned them. As silly as it sounds but that’s what you do. And that’s all there is to it. So there’s three numbers there that I suggest to you, mean absolutely nothing in this case. What all that does is confirms, I suppose, for us, that the registration numbers of the vehicle that was in the Truck Stop that night are unknown and have always been unknown to us. 3.27

Notwithstanding what the experts have had to say about the CCTV footage, Wild reminds the jury that they can make up their own minds after having seen the footage for themselves a number of times. The quality of the footage is such that this is not really feasible.

MR WILD: Now I’ve been speaking to you about the Truck Stop. I’m going to talk some more about Mr Bradley Murdoch’s vehicle shortly. Yesterday, I was taking you through the various people, some of them at least who had identified Mr Murdoch at the Truck Stop. And you’ll remember the ones I mentioned, I won’t repeat it. Part of it is Dr Sutisno’s observations and calculations and her findings. Dr Ringrose, the height. Beverley Allan, etc. On this very point, you are entitled to make your own observations because you’ve seen the Truck Stop video a number of times. You’ll see it again and you’ve seen Mr Murdoch here in court. Now this is the eighth week of this case and you’re entitled to use your observations to assist you as well. You have spent more time with him than a lot of people have and you’ve seen him in the witness box, you’ve seen him in profile. So you are entitled to use those observations to assist you as best you can. Yesterday I suggested to you that when you look at the comfit

pictures again, you might like to picture that comfit picture without a moustache and see the likeness that I suggest are there with Mr Murdoch. The other thing you might like to do is picture Mr Murdoch as he now is with a moustache and that might give you some help in this identification process. Now ladies and gentlemen, as I have warned you, I suppose, I’m going to talk some more about the vehicles. You’ve heard a lot of evidence now and a lot of argument and [page 134] discussion about Mr Murdoch’s vehicle. I hope I can do this without repeating matters you are very familiar with. 3.28

Wild then takes the jury through the evidence dealing with the history of the various vehicles which Murdoch owned, as part of his submission that the vehicle he owned at the relevant time was consistent with the description given by Lees, consistent with the CCTV footage at the truck stop, and demonstrated, by the process of ‘rebirthing’ the vehicle, an attempt to hide the vehicle to avoid being identified as the person responsible for Falconio’s death. These were all pieces of circumstantial evidence relied upon by the Crown to prove that Murdoch was the perpetrator. In the course of this submission, Wild deals with the mesh and bull bar issues again at some length.

MR WILD: I just need to explain where I’m coming from. We start off with a 47 series, we go to the F100 and then we go to the 75. I’ll just use that shorthand means of describing them each time, if I may. Now we know that the 47 had a particular canopy on it and we know that that canopy, including what was with that canopy, was moved over to the F100 and we’ve seen pictures of all of this and my learned friend has reminded you of all the numbers. I don’t think you need further

reminding by me about it. Then what happened, and we went through this yesterday, on 13 March, the 75 series was purchased and when that was purchased, the configuration from the F100 was initially moved over to it and you’ve got the evidence of that from a number of people. The canopy frame, you remember, was a square steel structure with a solid roof and the panel behind the cabin and then the remaining three sides of it had the metal mesh on it and you remember how that was opened, the drop sides, etc. I don’t need to remind you of that, I’m sure, at this stage. The access was by lifting up the mesh and dropping out the tail gates. The wheels — tyres, rather, spare tyres were carried on the roof, you’ll remember. You’ll see that in F100. Now, when the vehicle — when the canopy was shifted over, the evidence appears to be that the tyres were then stored inside. Now, Brian Johnston, the Sheriff, a very important witness in this case. We talked about him yesterday. I don’t think we talked about him for the day and a half before my learned friend was speaking. But Brian Johnston is an important witness. The Crown relies upon him. He was with Bradley Murdoch when that vehicle was purchased. They brought it back to Mr Hepi’s property at Sedan and the three of them made modifications to it. I need you to remember a couple of things about that vehicle because it’s that vehicle, the Crown says, is depicted in the truck video. The Truck Stop. First, when you look at Exhibit 244, which is the Reynolds’ vehicle which was purchased on 13 April. It’s got an ARB bull bar and it’s got a shorter than standard tray size. Now, there hasn’t been any argument about that during the course of the trial until we got some difference of opinion yesterday as to what the measurements of the Murdoch vehicle in 2002 were. In other words, the adjusted vehicle. And I need to take you through that, I’m afraid, to explain what the difficulty is there. You’ll remember Brett Duthie and he’s the man from WKD. He looked at the photographs for us, he looked at P244, the three

pictures, and he explained to you [page 135] how the hinges on the side and the cogs on the side matched up with the vehicle that you could see in the Truck Stop. And that indicated a similar sized tray. And, in fact, Mr Murdoch, during his evidence, agreed with that. It was only yesterday, I suggest to you, that some discrepancy was shown in the measurements when my learned friend was addressing you. And, in fact, the discrepancy is only, on our calculations, 30 mm. Three centimetres. It’s only that much, in fact. It’s a very small area. And you might think it’s explained, in any event, by the discrepancies on Mr Ringrose’s plus or minuses. Nevertheless, it’s an important matter then perhaps I need to take you through it. It works this way: according to Mr Ringrose and I gave you this figure before, the canopy length is between 2237 and 2473. Now, Mr Sandry did some measurements for us of the vehicle that was this vehicle but extended by Mr Somerville. Remember the evidence of Mr Somerville that he extended the tray. So, Mr Sandry’s tray measurements with the length was 2430, and that’s an outside measurement and an inside measurement of 2350, bear in mind the length of the tray is going to be smaller inside because you take account of the tail gates. So there’s then a measurement of the extension of the tray of 222 mm, so that’s the extension area that Mr. Sandry measures when he examines the vehicle in 2002, which is said to be Mr Murdoch’s vehicle. So the difference you see the outside figure then that was given to us, if you take Mr Ringrose’s figure of 2237, and the length before the extension, if you take the 222 off is 2208 mm. I haven’t explained that to you very well, I’m sorry, but the length outside is 2430, the extension of the tray is 222 the length before the extension therefore on the outside was 2208 mm. Now they’re Mr Sandry’s figures of the vehicle he seized.

Now, the figure that Mr Ringrose gave you is 2237 as the lowest end, to 2473 so the difference is 29 mm from his shortest distance to Mr. Sandry. I suggest to you that’s a matter of no consequence in this case and to argue about it really is nonsense and a waste of your time. Nevertheless, the argument was put yesterday, so I have to raise it with you. You should remember in this context, as I’ve said to you already, that Mr Panozzo looked at the tray in the picture and Mr Duthie22 looked at it, who you might think is fairly expert in these matters, he seemed to show a great deal [of] knowledge about it. They counted the lugs — the lugs being the items on the bottom bar where the tray hinges, and the hinges themselves and it matches a short tray. That’s all the argument is, this is a short tray, a 7 footer, not an 8 footer and that’s all the argument is about, and what we put to you is that the tray that you see in the Truck Stop is the same tray that Mr Bradley Murdoch had on his 75 series prior to the amendments and the adjustments and the extension that was done by Henry Somerville after July 2001, that’s all the argument is about. And in our submission there is no significant argument about that really at all. Now we go from there to the taking off of the top guard rail of the construction, the canopy that was put onto the 75, that’s done according to the witnesses in Western Australia but the evidence that we urge you to accept in this case, is that the mesh — the aluminium mesh was removed at Sedan. And it was removed at Sedan in March 2001, the vehicle was purchased on the 13th, the vehicle was driven back to Western [page 136] Australia and reregistered on 27 March and it’s the Crown case before you that the mesh had gone by then and stayed at Mr Hepi’s property thereafter. There is good support for all that in a lot of the evidence that we led in this case and really the only evidence that you’re entitled to accept, if

you chose to do so, is that of Mr Murdoch and that of Mr Jamieson to the contrary. As from March 2001, right until the incident at Barrow Creek it’s the Crown case to you that that mesh, those mesh sides, did not exist on that vehicle from that time. Now Mr Murdoch was asked about this during his evidence. He was asked about the construction in particular of the mesh sides. And I said this to him at page 2216: I wanted to ask you again about the mesh sides, Mr Murdoch. Now were the mesh sides attached with hinges and pop rivets? — With hinges and screws to the top, pop rivets on one side, screws on the other side of the hinge. Did you have to drill them off? — No, no. How did you remove the pop rivets? — If you wanted to remove the hinges you would — you don’t have to drill, you just sheer them off with a screwdriver if you had to, like any pop rivet. Did you in fact drill them off? — No, I did not. You say you did this at Forrest Street? — Yes. Did you have any assistance? — No. Do you remember the other day I asked Mr Johnston how they were removed? — Yes. And he said this at p 1858. ‘Mr Johnston, how are the mesh gates attached to the frame? — They are on hinges, riveted, pop rivets’. And these were questions I asked Mr Murdoch but they’re a repeat of the evidence that Mr Johnston gave at p 1856: And is that correct they were hinged? And this is me asking Mr Murdoch: They had a — like, not actually hinged, they were like a saddle. Do you remember he said they weren’t hinged, they were a saddle. He changed his emphasis at that point.

You said hinged a minute ago when I asked you? — That’s what I meant y hinge. They’re saddle, a piece of pop riveted and screwed, comes down nd around over your metal. I think he may have demonstrated for us. That’s a hinge point. He’s right when they said they were hinged? — Well, that’s how they turn in and out. They’re hinged, something’s got to be hinged to move up and down. [page 137] He’s right when he said there were pop rivets? — There were pop rivets there. He was asked whether he was part of the team that took them off, do you remember that being asked of him, and he said, ‘Yeah, we had a — we had to drill them off, had to drill out the pop rivets to remove them’? — No. Do you disagree with that? — I told you all along, there’s a lot of things I disagree with, one of Hepi’s gophers, Sheriff. So he’s wrong about that? — Wrong about a lot of things, yes. Right about the pop rivets? — There was pop rivets and there is a lot of pop rivets. Pop rivets were holding the aluminium. Now I suggest to you, that what is being said there is an agreement, effectively, by Mr Murdoch and you should interpret it as such that Mr Johnston knew exactly how that construction was fitted and he played a part, as he told you in evidence, in its deconstruction. The evidence he gave you was clear enough, I suggest. The evidence he gave you was that he was present in Sedan, that the whole of the canopy was moved over to the new vehicle, the 75 and then a day or so later — and that’s his exact evidence — a day or so later the mesh gates were removed. All of this happening, according to Mr Johnston, in March 2001. Now because this has become a major issue, it’s important that you

deal with it and understand it. Mr Johnston said at page 1820: Do you remember the wire mesh that had been on the F100? — Yes. What happened to that? — We took it off. What did you do with it? — It just ended up out the back of the shed at James Hepi’s place. And then he was asked in cross-examination at 1840: Is it your position by the time you left Sedan in the 75 series for the first time, the mesh sides had been taken off? — Yep. By the time the 75 series got back to Broome there were no mesh sides on it? — Yep. Is that what you’re saying? — Yes. It follows that throughout the drive from Sedan back to Broome there were no mesh sides on the canopy of the 75 series? — Yes. And my learned friend cross-examined about that but the final position, I suggest to you, was Mr Johnston’s evidence that the mesh was off. It was suggested on page 1858: Mr Johnston, I suggest to you that when you initially said that the mesh was on the F100 when the canopy was put there — sorry, I’ll withdraw that. I suggest to you that when you initially said at the committal that the mesh remained on the canopy after it was taken from the F100 onto the [page 138] Landcruiser, that is in fact correct? — Yeah, like I just said, when we fitted it, then we took the mesh before we left. Totally consistent I suggest to you with his evidence here, a day or so later it was taken off. And it’s finally on this point as far as Mr Johnston

is concerned, he was asked in re-examination on the same page: Mr Johnston, how are the mesh gates attached to the frame? — They were on hinges, riveted, pop rivets. As I understand it you just move the whole construction over onto the other vehicle? — That’s right. How long did the mesh gates stay on the other vehicle, not long maybe a day or two. Then taken off before you left? — That’s right. Were you part of the team? — Yes, we had to drill them off, had to drill the pop rivets to remove them. Now there’s a difference there between Mr Johnston and Mr Murdoch. Mister Murdoch said, ‘We sheared them off’, he said, ‘We drilled them off’. The point is that they’re the same pop rivets they’re talking about and Mr Johnston is not, I suggest not inventing this, he’s there, he’s part of the team that’s doing it. It’s in his memory, it’s clear and it’s consistent with another four or five witnesses that I’ll refer you to shortly. So: Do you remember what happened to them? — They ended up behind James’ house. MR WILD: Ladies and gentlemen, I was telling you about the mesh gates and you’ve been hearing about them now for many, many weeks. The mesh gates were still on the vehicle on 14 July. Don’t have any mistake about that. It’s a very important matter from your perspective. Now I want to say this to you. Mister Hepi gave some evidence about this and what he said was this: Metal mesh, is that what you mean? He’s being asked. He says: Metal mesh, that is the photograph in the F100, had been removed and they were zips rolled up and they also had fly wire in them.

Do you remember that? Could you get access to the items inside? This is at page 1112, your Honour: Yes, the canopy sides were held down by occy straps, you could undo them, slip a zip up, reach in, grabbing whatever you needed from the Esky or from one of the boxes. Did that include the back of the vehicle? — Yes, all the way around, three sides. [page 139] Three sides? — Yes. He’s asked then about the Magna seats. Do you remember the Magna seats I told you about yesterday? This is the passage where he says there were bucket seats in the front after they were changed over from the 60/40 configuration that we’d heard about earlier. They were changed, the Magna seats. He couldn’t remember when, ‘Sometime during the year? — Yes’. Then he’s asked again about the mesh and he said, The canopy from the F100. This is at page 1157 in cross-examination: … was put onto the back tray of the Landcruiser? — Yes. Still with the mesh on both sides and possibly on the back? — I think the mesh was removed. It was removed at my place, I think. Why was the mesh removed, do you know? — No idea, it’s Brad’s stuff, not mine. Could I suggest to you that the mesh wasn’t removed? — You could suggest it to me.

And you remember Mr Hepi was difficult to get on with at different times during his examination. He was then asked: Am I right? — I’ve got no idea. Later on he said: What I’m suggesting to you is that nothing changed in terms of the canopy and the structure of the canopy, it was simply taken from the F100 and then put on the back of the Landcruiser? — It was not. There were pieces cut off. The top was cut off, the top was off at my place. There are still pieces of this canopy lying at my place today. I didn’t mean to mislead you, Mr Hepi. I accept at some point you cut off the railing from the top of the canopy? — Yes, I don’t know what happened to the sides, they were removed at my place or removed later. You haven’t got them at your place, have you? — There is this mesh lying around my place, there’s quite a bit of this mesh lying around my place. That’s consistent, I suggest to you, with the evidence of Mr Johnston in respect of that and again consistent with other evidence which I’ll now remind you of. You heard Mr O’Dore, he was the canopy maker, about work that he performed — the canvas man actually. He didn’t have records of when the canopy was fitted. That he says a new fitting with the canopy — and I’ll take you to this side issue about that — was in fact when the new canopy that we’ve heard about, fitted, was that a completely new canopy, the canvas, or was it merely cut-outs and insertions of fly wire behind — fly wire mesh behind. [page 140] We’d been dealing for some time on the basis that there was

completely new canvas fitted to the 75 series but, in fact, it turned out in due course that Mr Murdoch said, at least, that what actually happened was that there were windows cut out with wire mesh behind to give the same configuration of the vehicle that you see in the Truck Stop, for example, and the same configuration that you do see in the vehicle at Barred Creek. And with a look in into that vehicle at Barred Creek and you can see where there’s a wire mesh, fly mesh window there. You’ll remember seeing that. Exhibit 248. Now, so Mr O’Dore wasn’t asked about that when he gave evidence. His evidence was that he fitted a new canvas canopy at that time to the 75 series but later we heard that all he did was do these cut-outs. There is an issue, as you know, about whether one of his logos is sewn onto that canopy. Mr Murdoch says you can’t see it in the Truck Stop. You can’t positively identify it. That’s certain. And you’ve also heard from the witnesses, from Mr O’Dore’s employment, that they sometimes forgot to put it on. So that’s really a bit of very equivocal evidence, you might think. You don’t know one way or the other. As far as the Truck Stop’s concerned, whether that’s one of Mr O’Dore’s or not. However, what he says is it looks like one of his canvas canopies. So you’ve got that information. Now, I just want to remind you of those witnesses who say — I think I did this yesterday, but I’m going to remind you of it because of the importance. Beverley Allan travelled in April with Mr Murdoch to Wyndham in Kununurra. Went via Fitzroy Crossing where Mr Jamieson was living and they stopped in and saw Peter and Roma at that time. She says there was no mesh in that vehicle at that time. It’s never been suggested by Mr Murdoch that he put it in and took it out from time to time. It obviously required a bit of work to do it because you had to drill or shear off the pop rivets. So it wasn’t just a question of unscrewing and screwing it back in again. So there’s never any suggestion that it was taken out and put in again. It was swapped from vehicle to vehicle but never a suggestion that you take it off for the weekend for example. The only time Mr Murdoch says he did that was for the Barred Creek

trip and that was because he was preparing it, as he says, for the new canopy that was to be fitted. So, there can’t be a suggestion, there hasn’t been a suggestion and you shouldn’t countenance it that it’d just been taken off for the April trip. Wouldn’t make any sense for that to happen. What Mr Murdoch says is, ‘I needed it’. So it’s either needed or it’s not needed. So there’s no suggestion that it’s taken out for the April trip and Ms. Allan says it was not there. And she was cross-examined about it and she was very positive. Now, this is a woman who had demonstrated tender, loving care to Mr Murdoch at an appropriate time and was friendly with him, from her perspective, at least. And I suggest to you she was telling the truth about this matter and throughout her evidence and you should accept it. And that becomes powerful evidence. You then heard from Mr Johnston. He told you that by the time of his third trip it wasn’t there. And of course that’s right from his point of view because he’d taken it off, helped take it off, in March. Gone. Canopy adjusted by taking off the metal mesh. And he goes a step further because he says when he got into the back of the vehicle to have a sleep he didn’t have to lift up any mesh. So he’s got a clear recollection of the status of that vehicle, one that he travelled in. He travelled in it with Jack. Jack was in the back. So, there are all of the indications that Mr Johnston would know what he’s talking about. [page 141] Now, once again I invite you to recall Mr Johnson in the witness box there, he’s asked a question and he thought about it. And he was doing his very best, I suggest to you, to give truthful answers to every question he was asked. And you should be satisfied as to (inaudible) on this and every other issue. You’ll bear in mind that he had travelled with Bradley Murdoch

as his accomplice, if you like, in the drug business. It’s not an entirely innocent man in that sense, but you should accept his evidence, he’s come and given it to you. Rachel Maxwell travelled with Bradley Murdoch from Adelaide to Norseman you’ll recall in May and you worked out the dates, and I discussed that with you yesterday. Around about 19 or 20 May she crossed the border with Bradley Murdoch to Norseman and met James Hepi and travelled up to Broome with him. She says that as far as she was concerned, all you had to do to put gear in the back, lift that flap on the corner immediately behind the passenger and in went her overnight bag. Just in like that, that’s at page 1871. At p 1876 she was cross-examined and she stuck to her guns. No mesh in May, no mesh in April or May or ever again. Now you might think that Ms. Maxwell is on the other side to Mr Murdoch, I’ll take you to some evidence shortly which might have given you the impression that he thinks that. However, when she was asked about the silver gun if you recall, by my learned friend, she didn’t put the boot in as far as Mr Murdoch was concerned. She didn’t say that was Bradley Murdoch’s gun, she said: I don’t know, it was there, there were two men there, it might have been James Hepi’s gun, I don’t know whose gun it was. So this is a witness again doing her best to be honest and tell you what she remembers, what she saw, and you should accept that evidence. You should accept it more because it’s consistent with Bev Allan’s evidence, consistent with the Sheriff’s evidence, it’s consistent with Mr Hepi’s evidence and it’s consistent with Julie-Anne McPhail’s evidence. Now Julie-Anne McPhail travelled across the Nullarbor, you might have some misgivings — my learned friend invites you to have some about her evidence — I suggest to you that she has given you a warts and all story and as part of it, she tells you she saw him set up the camp that night, he was there, she saw Jack, there were no mesh sides on the vehicle.

And again, you can put these people altogether and line them up if you like and say all right, it wasn’t there in April. Start at the beginning. It was taken off in March, it wasn’t there in April, it wasn’t there in May, it wasn’t there in June, is it a fair bet that it wasn’t there in July, of course it is, because we know it wasn’t there on 25 July when they’re at Barred Creek, so are we going to come to a decision that it is there in that vehicle on 14 July. Well, how ridiculous, with respect would that be, given all the other evidence you have? Now, the only contradiction to that I suggest to you is Mr Murdoch and we understand his argument about that, certainly nobody could get out the back, could they, with that mesh there. And Mr Jamieson, I invite you to give little weight to Mr Jamieson’s evidence in this regard. So there it is, I suggest to you with respect that you shouldn’t have any doubt at the end of the day that the mesh had disappeared from that vehicle by that time. Now the effect of all of that in the Crown’s submission is that the vehicle that you see in the Truck Stop pictures with that configuration of the zips on the side, is the [page 142] same configuration as Mr Murdoch’s vehicle was at that time with no metal mesh behind it and that is the same configuration as the vehicle that was up the track that day, that evening at Barrow Creek, and you shouldn’t in our submission have doubt about it. There is another issue that you’ll remember yesterday, we spent some time with and the issue is about the bull bar, I need to take you to that. There is no doubt is there that the bull bar in the Truck Stop is different to the bull bar on the photographs you’ve seen of the 75 series, 244. It’s a bigger, stronger bull bar, it has that scoop effect on the bottom of it that we talked of. It is a bull bar of the configuration which is described by the witness Minshull and described by the witnesses Duthie and Sadler, I think, as being Bradley Murdoch’s bull bar. But they say — Mr Murdoch says it wasn’t there on 14 July, it was

later put on. So that’s the issue, and it was an issue that we looked at closely yesterday and my learned friend spent some time with you in respect of the evidence given by Mr Minshull. I need to remind you of what Mr Minshull said when he was re-examined about this, because you might have got the impression yesterday that it was Mr Minshull’s position that this bull bar was put on after 14 July. It may well be that that was his reconstructed recollection with the assistance of hindsight, as it were. But this is what he said when he was giving his — he was reexamined by Ms Barnett, my learned friend next to me, at page 1632: When you made that statement to police in December of 2002, that was approximately 15 months after the purchase that we’re talking about? — Yeah, it was a fair while afterwards, yeah. Did you have any records then to go back and check what the date of it was? — I did go back through all my diaries and have a look and I physically didn’t, there was nothing written in my diaries and there was never an invoice created for it and I couldn’t find the old bar. It had been traded in apparently: And also couldn’t find the sale of the old bar as well. So I did go back and look for all that, but. So when you made that statement to police in 2002 in December, you were just going from memory? — That was just an estimate, yes. An estimate yes, 15 months later. Now one of the problems — I told you this yesterday — one of the problems in this case and in all cash economies is you don’t have receipts and you don’t have order forms, you don’t have invoices, people pay cash and that has a connotation with it perhaps, but there’s no records kept, no records in this case. So Mr Minshull is asked 15 months later, ‘Now, when did you put that bull bar on?’ and then he

starts approximating and thinking back, ‘Did he have a moustache, was his moustache off, was it after the Falconio case?’. How would he remember, ladies and gentlemen? It’s a guesstimate. There is some help that you get when you’re trying to work out what he’s talking about. Mr Minshull did some drawings and things, similar to the bull bar that you find on the front of the vehicle in the Truck Stop. But you get some help because you’ve [page 143] got somebody who remembers and it’s the Sheriff, he remembers. He’s given strong evidence about this, and you’ll remember. He says: That bull bar was on that vehicle before I left on July 24.’ He left on 24 July 2001 when he left Broome altogether and he told you, he worked backwards, and he told you: I don’t think it was on in the May trip we did. He gave this evidence to you: I don’t think it was on in the May trip. — which was the third of his three trips, you remember. He said: We came back and I left the house. I got criticised for the questions I asked about this, but on reflection I was right, I think. He came back to the house and then he says: The bull bar was on. If you work out his dates, the bull bar was on certainly in July. It was on the vehicle before he moved out, he says. On the vehicle before he moved out. Now he’s moved out, as he told you, some weeks before 24 July. 24 July was the date he left Broome, but you’ll remember that he was

actually thrown out by the combination of Mr Hepi and Mr Murdoch, as I understand it and he was out of there in June. And of course Mr Murdoch was away on one of his trips in June and we have the dates of that, the trip on 20 June, I think he went across the Nullarbor with Julie-Anne McPhail. So, you’ve got strong evidence, he describes the bull bar that we’re talking about in his evidence. He’s asked about it on page 1825, he was asked: Had there been any changes to the bull bar? — There was another bull bar fitted to the one that was on it, when the car was purchased. Which was the ABR one. It was more of a heavy duty type, more similar to the one that was on the F100. His Honour: Was that more heavy duty bull bar on the vehicle on this trip, meaning the May trip? — It may not have been, it may have been fitted afterwards, I’m not positive about that. When you say after, after what? — Well, after I did the third trip, yeah. And before when, are you able to tell us some time frame? — Well before I moved out of the house. [page 144] And it works out on his evidence before he moved out the first time, which was obviously in June. So the bull bar is there, I suggest to you despite what my learned friends say. What you’ve got is a witness who remembers, who’s got a time frame that’s certain. And his time frame is certain because he

knows he left Broome on 24 July and he gave that evidence to you, ‘I left Broome on 24 July’. And he’d seen the bull bar and he was there as he told you, left there three weeks before, well before that, in June. So he sees the bull bar, he sees the bull bar which is similar to the one in the Truck Stop video. Mr Minshull on the other hand 15 months later is operating on a guesstimate. So what do you prefer, I suggest to you the evidence of Mr Johnston is superior. Bear in mind that the bull bar that we’re talking about is one which all the witnesses that have been asked about it, say is similar to Bradley Murdoch’s bull bar. Anyone — with the scoop at the bottom, you remember the scoop at the bottom, you’ll see it again in the pictures that are made for you, the drawings from Mr Minshull. So it’s our submission to you that you shouldn’t have any doubt about that either. So the defence can point to these differences, ladies and gentlemen, but they don’t stand up to close examination with respect. And the same thing applies to the other differences that my learned friend was able to point to, during the course of his able address to you yesterday. And you might think listening to his strong and persuasive address, ‘Well, this couldn’t have been the vehicle, look at all these differences’. The differences are imaginary, the differences are not established by the evidence that is acceptable to you as we submit to you. Ultimately of course, you’ll make your mind up about what evidence you accept in this area. As I said to you earlier today, Mr Johnston was virtually ignored by my learned friend in his address because, ‘I don’t like what he says’. It’s against their view and it’s against their story, but it’s good strong evidence of a man who travelled with him, who lived with him. He knew that vehicle intimately and knew when it was being changed. You might think, one particular thing about Mr Johnston, he’s the man who swerved to avoid the kangaroo and got told off for it. So he would’ve had a very lively awareness of any change in the bull bar set up on that vehicle, something that he would’ve been alerted to. And bear in mind of course, that Mr Murdoch himself, as he’s doing these changes to his vehicle is not slow to point them out to his colleagues

and friends, they discussed them, that’s the interest. But Mr Johnston had seen them, they were there before the end of June. Duthie, as I said, gave evidence that it was similar to the one in the Truck Stop, the one he saw. Of course he’s unable to tell you exactly when he saw it. The difference might be, of course, that after that time the whole vehicle changed, so the new bull bar that Mr Murdoch talks about has been put on, in fact on our submission to you, is put on earlier. Interesting, that otherwise, there was very little modification done between March and June on the version you’re asked to accept. One major one that was made, we heard from Mr Panozzo, who’d spent 38 years with Toyota, and he was able to identify the vehicle for you as likely to be a 75 series and that, you might think, was a significant matter and of assistance to you. He told you the wheels were Sunraysia and Mr Murdoch accepted that the wheels were Sunraysia on that vehicle and agreed that that’s what he had on his vehicle, particularly following the trip to Perth on 20 May or thereabouts. [page 145]

3.29

Wild then turns to other issues about the vehicle in the truck stop video: the flared mud guards, canopy height, tray length, side zippers, inside trim of the canopy, whether there were spikes on top of the canopy structure, and the over-sized wheels; all details which were debated on the subject of whether the vehicle was Murdoch’s.

MR WILD: There was an argument about flares, you might remember. Well, you have a look and see if you can see flares on that quality. That’s one of the problem with the video, it works in both directions. Some things that we suggest you can see and some things the defence suggest you can see. It’s a matter for you to look at and see what you can see. Flared mud guards, the parts they said or maybe that’s there, but he couldn’t really see them. Mr Murdoch says he can see them.

Well, perhaps you can see them. Again, something that you’ll need to consider. Mr Murdoch agreed in cross-examination the canopy was the same height as his. You remember the idea of having the top of the canopy level with the top of the cabin. I suggested for aerodynamics. Mr Murdoch, I think, thought that it was — opined that it was because you wouldn’t stand out, I think was the point that he made. The tray was the same size, he conceded in his evidence. I suppose if you are looking at a tray, if it’s 3 cm out, as my learned friend was arguing yesterday, I suppose you wouldn’t see that. The wheels, the canvas sides he agreed had the three zippers. He thought there might have been a slight kink, I think, at the bottom of one of the zips. It may have looked a bit different when his Honour was asking him about it, and he agreed that the bull bar was similar to the bull bar but that he’d purchased it post July. The argument we’ve just had in respect of it. Just as a side wind, I might remind you — and I told you this yesterday — the Toyota Landcruiser in exhibit 280, has an inside trim consistent with that that Joanne Lees described to Mr Stagg when she was doing her pictures. Just remember again, while I’m thinking of that, the way in which those drawings were done with Mr Stagg. It’s suggested to you by my learned friend, the vehicle finally depicted by Mr Stagg is the vehicle. You shouldn’t by any means be satisfied with that given the whole way in which that interview, whatever you call it, was conducted with Mr Stagg on that day. Mr Stagg, a lovely man, very concerned to do the right thing, but put a lot of himself into it, the way he conducted the whole day. So just be wary with respect of what weight you give to all those drawings. 3.30

Wild reminds the jury of the evidence of witnesses who had raised with Murdoch the issue of whether the vehicle was his and what he had told them. He also deals with the recognition evidence from the witnesses who knew Murdoch and claimed to have recognised him in the video.

MR WILD: There are other people who again are familiar with the vehicle and with Mr Murdoch, who remember something about the vehicle. Mr Hepi, for example, thought that the person in the video clip was Mr Murdoch. You’ll remember evidence, there was media attention at the time, given in this court, I’m talking about, not what [page 146] you saw at the time yourselves. The Western Australian is of a poor quality but the image same as you’ve seen in other places. I’m talking about that picture on the front of the Western Australian newspaper which is exhibit P25323 that you’ll have a picture of a man coming into the shop. You remember that he had a discussion originally with Mr Murdoch in which he said it couldn’t be his vehicle because of the spikes on the top. And you’ll remember the spikes disappear in the next frame as the vehicle goes out. But in the one in the paper, the spikes are there so Mr Hepi, for his part, knew the spikes have been taken off. The guard rail and whatever had been taken off the vehicle so he was prepared to accept that it wasn’t his vehicle at that time. Nevertheless, he thought it was his vehicle, apart from that one matter. He’d driven the vehicle himself. He knew it had oversized wheels. He knew it had that kind of a bull bar. It was his vehicle given that there’s a vehicle and a man. And he puts the two together. You might say, well, it’s a Toyota Landcruiser, there’s lots of those and there’s lots of men with moustaches. Put them together, a man you know and you take a view. Now, Mr Hepi told you that he had a later conversation with Mr Murdoch which was denied, as you remember, and it was at that stage that Mr Murdoch actually admitted that it was him in the Truck Stop. Now, that’s a matter for you of some significance. If you accept that piece of evidence then we’ve been wasting our time here for two or three of these weeks. But that’s the evidence that Mr Hepi gives. And it’s a matter for you whether you accept it.

As far as Beverley Allan’s concerned, she had pointed out to her various differences in the Landcruiser, including the spikes on the top. I think she said she thought it was similar and she told him, it couldn’t have been him. He was towing a camper-trailer. Now, there’s an example of a witness that Mr Murdoch says has got a lot of things wrong who’s got something right, from his point of view. She remembers him saying, ‘I was pulling a camper-trailer’. That doesn’t mean he was pulling a camper-trailer but it means she remembers him telling her that. If she was agin him and trying to say everything against his interest would she remember that? Would you concede that? Well, she wouldn’t, I suggest to you. It makes it easier for you to accept all of her evidence because she’s telling you everything. Bits that don’t suit the Crown case, you might think. So, there it is. She also told you that she was fairly convinced it was him. That’s a different issue, of course. She was very strong about this. Because of the way his whole body posture, you know, the stance when you know somebody, you know someone. At p 1188, she said that. Mr Murdoch denied it was him. She said later in her evidence: What he’s wearing, the way he holds himself. She’s talking about the whole picture of the man. She knows him. She knew him. She recognised him. At the time and still. [page 147] He was the one who told you about Mr Murdoch’s father ringing. I told you all this yesterday, I know, but you might think this is particularly significant evidence. She told you about the conversation where he said: ‘Ah, the (inaudible)’, saying something to the effect, you know, ‘Is that you on the front page’. She told you about that. Some

discrepancy from Mr Murdoch’s point of view. You see, what’s happening at this time, Mr Hepi’s asking, ‘Is that you?’. Bev Allan is in a conversation with him. His father’s ringing up. Mr Jamieson asked him, ‘Did you do it?’, you remember that evidence. Mr Duthie. All of them are talking to him. There’s a buzz around Broome. I think I said that to you yesterday. People in Broome. ‘You know, here’s the front page of the Western Australia. We get it up in Broome’. There’s a picture of the vehicle, everyone knows Brad Murdoch, my learned friend would call him. There he is, a picture of him. Mr Murdoch tells you, ‘Lots of people were rung up and alerts and whatever’. These are the people who know him best. They’re the ones that are identifying him. Now we talked about bad identifications before, but these aren’t strangers, these aren’t people in the Bourke Servo. These are his friends, his family, people who spend time in his house with him. They know the way he looks and acts and hangs and his body, his clothing, that’s the view they have. We talked about it yesterday, because it’s important to you I’m repeating it. Mr Murdoch had a conversation with Brett Duthie and he agreed that it did look like him. He didn’t say, ‘Yes, that’s me’. He said just looks like him. Now there’s a fair admission, if you like, ‘It looks like me’. ‘It’s not me but it looks like me’. So you don’t really need to spend a lot of time again, you might think, worrying about whether it looks like him, because he agrees it looks like him or did at the time. If he went the next step and said, ‘It is me’ as he did to Mr Hepi, well, you’ll have to consider that. Of course Mr Johnston identified him and the vehicle. He said the vehicle looked very similar, the canopy configuration was the same as was the bull bar, the man looked like Brad in the way he carries himself, the way he walked. Isn’t that a common thread of the witnesses ‘the way he carries himself’. You can look at that picture and see what they’re talking about. And they could all see it. Yes, Mr Johnston said this — I did overlook this, I’m sorry: Not only the way he walked but the clothes he was wearing as

well. Mr Johnston said that. He said the grey woollen top — he identified that as a top he knew. Mr Murdoch told us in evidence that he was wearing a Fitler(?) jacket or I just lost the word, but a particular kind of jacket he was wearing, and it wasn’t him, of course. But there it is, a grey woollen top that Mr Johnston recognises as one that he had and the cap looked like the Pennzoil cap. Now you’ll remember Murdoch says: I only had a Pennzoil cap for a day or two. Mr Johnston says it looks like the Pennzoil cap in that picture. Maybe that’s a big call. You can see there’s the front emblem on it and you can see there’s one on the back as the man walks away. I don’t think Professor Spring could see it, but you might be able to see it. Have a look at it, maybe it’s an artifact, maybe it’s not. Maybe it’s the same Pennzoil cap that’s exhibit — whatever it is — in the exhibits you’ve got. It’s not exactly the same one, of course, because that one has been exhibited. But have a look at it and you’ll see there’s a badge on the back of that cap. And that’s unusual, you might think, for such caps. [page 148] So that might be of some minor assistance to you, but when you consider it with all the other material that you are getting in this case, this man, this man here, put a cap on him as you look at him, put a moustache on him as you look at him. Is this the man? I suggest to you it’s the man in the Truck Stop sitting there. 3.31

Wild next discusses the changes made to the vehicle after Mr Falconio’s disappearance and what inferences are open to be drawn as to why those changes were made, as another piece of circumstantial evidence.

MR WILD: I want to just deal with some changes and I’ll try and do this more quickly for you, but it’s still important that you understand it, with respect. Changes made to Bradley Murdoch’s vehicle after July. Now I’ve suggested to you that the changes to the mesh, (inaudible), a bull bar, new bull bars, were already there before 14 July. But we know there were changes afterwards and massive changes. Now we’ve spent a lot of time with witnesses saying well, Bradley Murdoch loves changes to his car, obsessive about it, changing this, changing that, and changing the next thing. And yet in between that period we’ve just talked about March to July, he wasn’t doing any great deal of changing, but the great changes occur afterwards and you’re entitled to ask why, why is this so? Changes (inaudible) spends a lot of money you might think on them and we don’t have good dates for some of the stuff, some of it’s cash business, but we can follow a fair bit of it. Despite what Mr Murdoch says in his phone calls to various people, and you’ve got those at Exhibit 282, despite those phone calls, he had not ordered the aluminium before the end of July and you’ve got evidence as to when he ordered the aluminium and it was from after the Barred Creek trip, on 25th, 26th, 27th, after that he ordered it. Now Mr Murdoch and his counsel will say, ‘Well, that’s consistent with a plan to do it and he’d been talking about doing these things and maybe he had been talking about doing things but the fact is he didn’t do it until the 27th or after that of July when he ordered the aluminium’. That was Mr Somerville, Henry he was known as, you remember Henry, Henry Somerville, that’s not his real name, Michael I think it is. Henry, from Corella Welding, was asked to do the work on it at that time, so that’s a significant matter you might think, but more important as to all the rest of the work that was then done, so the new canopy was built and you’ve got all the pictures at that at that time. And then we moved from there to the turbo, and you might have wondered what the turbo was for, why would you need to go any faster if you’re just being ‘Tommy the tourist’ up and down the Tanami, plodding along. Why would you needed a turbo booster for your vehicle? That’s what he did. So you know that the changes were

dramatic, more than just a hobby you might think, and what then happened in the next year was a complete transformation and you’ve been given a very helpful document which is exhibit P276, which shows all of the changes made to three separate vehicles which seem to suddenly get all swapped and changed around. Tray put on this one, cabin from this one, engine from this one perhaps, chassis from this one, you can follow it through. I’m perhaps exaggerating slightly but you follow it and you’ll see the precise changes that were made. I don’t want to take your time up going through it now, and that’s why we gave you that exhibit P276. It shows the changes. [page 149] But one of the important things that you might remember is the change of identification of the vehicles. With the plates going across and you were told by Mr O’Connor — I’ll just remind you of this. They removed the cabin from Mr Kotz’s vehicle, do you remember the young man, Mr Kotz and discarded it. He was the man who gave evidence about Mr Hepi being put in by Bradley Murdoch. They finished the work, Mr Murdoch decided that he’d keep that vehicle. He paid Mr Kotz $10,000 and then he started to re-identify that vehicle, the cabin was discarded, and Mr Kotz saw the compliance plates stuck in the glovebox of Mr Murdoch’s cabin and then Mr O’Connor said they were put on the firewall of Mr Murdoch’s vehicle and what he told you about all that was that this is a method of rebirth of the vehicle, so you’re actually changing a vehicle over entirely to disguise its true identity. So we are able to put together all these vehicles or take them apart again but in fact it would be almost impossible for someone who didn’t know to do this exercise. So 12 months later, beyond July 2001, the vehicle that Mr Murdoch was driving on 14 July wherever he was, has gone. And it’s in this other configuration married up and Mr Murdoch’s has told us, not only all that, but of the new configuration he’s put on the back, the new canopies, the new canvas, he’s changed the canvas, and he gave

evidence here about that, that he took the canvas off and he put a new canvas on and if you look at the pictures, it’s obviously been painted a different colour as well. So, the changes are going on and my learned friend would say, well, that’s what he always did. He changed things. But, this is more than just a transitory change or a new buzz bar or whatever. Bug bar at the front. This is a total transformation to make it impossible, without the kind of work that was done by Mr Connor, to work out exactly what had happened. Now, why did he go to that extent? That’s the question that you might ask yourself. And it’s our submission to you you should find as consistent with a man who, as from 16 July was endeavouring to distance himself and his vehicle from the events that occurred the night before at Barrow Creek. And that’s what was happening. So, if it’s suggested to you that all these were part of his meticulous nature and improvements. Well, just consider whether that’s just a convenient excuse to do what we suggest to you he was doing which is disguising the vehicle that was involved in the Barrow Creek murder. 3.32

Wild returns to the subject of the camper-trailer and the route which Murdoch took along the Tanami Track, and why he would have come back south to have taken that route instead of crossing west along the Buchanan Highway or continuing north towards Katherine.

MR WILD: Now, ladies and gentlemen, there’s just one final area in respect of the motor vehicle, at least. There’s other areas I’ve got to cover with you. The camper-trailer. Now, we here today are not in Mr Bradley Murdoch’s vehicle on 13 July 2001 when he left Sedan — 12 July, when he left Sedan. So we don’t know if he ever took that camper-trailer away from there. All we have is his word for it and Mr Jamieson’s word for it and the suggestion made to Beverley Allan that he had. He didn’t show it to her. Just a suggestion made. So that’s what we have. We know here, don’t we, and we being everybody, I don’t mean just

you and me, we know from the evidence that he’s a meticulous man. Was he intending to travel with that [page 150] camper up the Tanami? ‘Well, it’s a camper-trailer, Mr Wild’, he said. ‘That’s what you do it for, what do you think?’ You know, I should realise that. But this is his brand new trailer, hasn’t even tried it out yet and he’s going to take it on the roughest 1100 km of road in Australia according to him. You heard him say that in the video. So his brand new trailer, just spent $4200 or something on it, registered it, up the Tanami with it. On a trip in which he’s carrying over 20 pounds of cannabis as part of his business. Not a holiday trip. This is his business. His business is getting back there as quick as he can and what he’s doing, he’s plodding up the Tanami. Now, if he’s playing Tommy tourist, why can’t he drive straight up the Stuart Highway on a decent road and cut across Dunmarra, Buchanan,24 as he’s done before? Why does he choose this rough road? There’s a clue to it. Let’s just assume he’s pulling the trailer for a minute. There’s a clue to it in what he says to Beverley Allan. And the clue is, ‘I had to take a different route’. Here’s a man, let’s say he’s going up the Stuart Highway with or without a camper-trailer and an incident occurs, a problem occurs. ‘Drama’, is his word, that he has to deal with and changes his route. Isn’t that what happened? I suggest it is. Whether the camper-trailer is with him, we don’t know. Can I suggest this to you: if he found a drama which he needed to deal with, it would not have been difficult for him to take the trailer off and leave it one of the many spots that he camps at and stops at for a temporary time. If that’s what he wanted to do if he had the trailer with him. He could have done that. Now, we’re told, ‘He’s too meticulous to do that’, but there are competing interests in his life, and you’ve been told repeatedly that one

of the things that’s uppermost in his mind is to avoid contact with police officers and avoid contact with police officers and avoid contact with other bad guys who might be after his stock, that’s why he carries a weapon. So if the drama arises, somebody is following him, he sees perhaps, Kombis, three Kombis, I don’t know, it might start to worry you a bit, is he being followed. Somebody he says followed him, is that what he has to deal with? So the camper-trailer, I suggest to you, is expendable, but say it is stolen or pinched or disappears. It’s expendable if there is a bigger drama in life and there is no reason I suggest to you why it couldn’t have been left in an appropriate spot if he had it with him. And it’s consistent with that perhaps, and this is consistent with Mr Murdoch’s view I suppose that he was originally — that he did have it with him and was originally intending to go straight up the highway. Now we know from the evidence of Mr Stanes and in particular Mr Hall, if he’d pulled the trailer, it wouldn’t have made a great deal of difference in time, perhaps an hour or so in total and you’ll bear in mind from the times I gave you yesterday, there’s plenty of leeway there for that trip, so whether he’s got the trailer or not, he could’ve done it. A meticulous man we’ve been told, a man who sprays off his vehicles when he gets through to Alice Springs, that’s the kind of thing he does. All right, well, now if he had the need, for whatever reason there’s a Kombi vehicle he’s interested in. He sees it goes past, he knows he can catch it if he needs to or wants to, why couldn’t he leave the trailer? So that’s an alternative view for you. There’s two possibilities, he didn’t have it with him, of if he did, it was disconnected at the time at which he was involved in this incident. [page 151] I want to talk about Mr Murdoch’s evidence, and this won’t take long. What I’m going to talk [to] you about after lunch, and then we’ll move towards the end of my remarks is DNA which I haven’t touched on yet. And you might think it’s pretty important in this case.

3.33

Wild suggests that Murdoch has tailored his evidence to fit with the facts that the Crown has proven — particularly his evidence about having gone to the Red Rooster, which Wild implies is a lie — in order to provide a possible explanation for the blood found on Lees’ T-shirt. This goes beyond merely suggesting that Murdoch is untruthful. Wild is suggesting that the lie shows a consciousness of guilt, which is in itself a piece of circumstantial evidence which can be used against Murdoch.

MR WILD: All right, Mr Murdoch’s evidence. Now you’ve had an ample opportunity I suggest to you to look at him, think about the evidence he’s given, think about the evidence he had to answer and no doubt you talk about it from time to time. He’s had an opportunity to tailor his story to the evidence that’s given. Now it’s very proper, as you’ll understand, that the accused person in a case hears all the evidence, it’s very proper so he can answer it. That’s what the role is of the court, to provide the evidence so he can answer it if he wants to. Other witnesses are out of court and they come in as they’re required, so they don’t hear what other people are saying, the theory. He has a chance and he can address the issues as they come, and his counsel has an opportunity as well. So when you think of his evidence and listen to it, just bear that in mind that he’s had that opportunity. He realised I suggest to you, and his counsel I think put this through him, that the original idea that the DNA had been planted on Joanne Lees by James Hepi in some way was crazy. And his evidence on that, as I understood was, ‘You know I was locked up, I was looking for some answer, therefore I picked on James Hepi as someone who might’ve done it’. Well, you can understand that sort of view I suppose, but it was ridiculous and always was, so some other theory develops and he’s given evidence that he went to the Red Rooster at 10.30 that day. That time perhaps covers all the bases, doesn’t it, because there might be some argument somewhere about exactly what time Joanne and Peter went to the Red Rooster, but nothing suggests they were there before

10.30. So if Mr Murdoch was there at 10.30, that gives him the accidental opportunity to leave some of his blood around that is going to somehow cling to Joanne Lees later in the day, which is one of the suggestions that you’ve got in this case. Ultimately — and this is the problem for Mr Murdoch in his evidence, I suggest to you — it comes down to this, is how did that DNA get on Joanne Lees’ T-shirt that day, how did that happen? It wasn’t at the Camel Cup, we’re told. It could have been at Red Rooster. We’ll look at that more closely after lunch. 3.34

Wild addresses the jury on the weight to be given to Murdoch’s evidence where it differs from the evidence called by the Crown. The effect of this submission is that if Murdoch’s evidence on these issues is not accepted, it can be ignored.

[page 152] MR WILD: Mr Murdoch frankly says to you, and you might think this is a sound admission on his part, or lack of confession, whatever, he doesn’t know how it got on there. You know what the Crown suggests happened and how it got there. Now he had this problem with witnesses that — I asked this question and stopped, which was very proper of course, I shouldn’t have asked it. But I put it to you now, what he says is that if people disagree with him in his evidence, they’re wrong, and if they agree with the evidence he gives, they’re right. Now that’s convenient for him but it leads you into a difficult situation because you’re not sure which bit might be accepted and which isn’t, except for those he asked questions of through his counsel. He was asked this at page 2233: You subsequently thought that Mr Hepi wasn’t pulling his weight? — Yes. You were doing too much of the driving? — Yes. It was running

you down a bit? — It’s not only the driving, I was also doing all the buying and packing and everything over the other side, not just driving. You’d lost a bit of weight, did you? — No, not really. Not really at all? — No. Didn’t lose any weight? — No. You’ve heard other people suggest that you had lost weight? — Certainly two or three people have suggested I’ve lost weight. It just seems to be the same lot of people suggesting the same as that I didn’t have any mesh sides in my vehicle. The same group of people. They’re wrong? — They’re wrong. These are people that disagree with him, they’re wrong and they’re siding against him, he says. I invite you again to consider Mr Johnston, Bev Allan, Rachael Maxwell, Julie McPhail, were they all ganging up on him. Mr Hepi, you can have a different view about because you know that he had a general grievance, he thought he had a general grievance anyway. But those other people, they were all ganging up and therefore not to be believed. That’s the essence of what Mr Murdoch is saying. So I suggest to you that he admits — hear what he has to, otherwise people are wrong. Mr Hepi about many things, he said. Bev Allan, a lot of things wrong — although she was only attacked on a couple. Mr Johnston — as I said, we hardly heard about him in the address, but he got a lot of things wrong so Mr Murdoch said. Mr Cragan, he was wrong about the caps. And Mr Cragan’s one of his friends, you might think, he didn’t give any harsh evidence against him. He did say he wore — carried caps in the vehicle. ‘No, didn’t carry caps in the vehicle’. It doesn’t suit him to have caps in the vehicle because the man at the Truck Stop has a cap and the man at Barrow Creek has a cap. Bradley Murdoch doesn’t have caps in the car, but Mr Johnston says he does and Mr Cragan says he does, and they’re men who travelled with him collectively on four trips at least and said that he

put a cap on at times to go into shops and things. Denies that. [page 153]

3.35

Wild refers to the hair ties evidence and suggests to the jury that the hair tie found in Murdoch’s possession was a souvenir.

MR WILD: Ladies and gentlemen, I was discussing with you this morning the evidence given by Mr Murdoch during the course of this trial and I wanted just to take you and remind you of his reaction — and these are things you’re entitled to take into account — his [re]action to the issue of the hair ties. I told you yesterday what I suggested to you was an unusual reaction when the cable ties handcuffs were shown to him. In this respect, the hair ties are an important issue. You might not have thought of it as such a big issue initially. The hair tie that we produced to you early in the trial, the packet P3, is a packet of hair ties similar to the ones that Joanne Lees uses. They’re big and thick ones, she told you, because she has thick hair. She ties her hair in a bun at the back. And she had done so on the day of the Barrow Creek incident and lost it at that time. And I suggested to Mr Murdoch, you might recall, that perhaps he kept it as a souvenir. Now, he realised, I suggest to you, that during the course of the case that it’s an important issue and when he was provided with the hair ties that came from the police were produced the day or so earlier, he almost recoiled from them because they were thinner than the ones that are shown in P3. They’re thinner than the ones that Joanne Lees uses. His story to you was that he uses hair ties as well, but they’re quite different, they’re a different size. What happened is this. I said — this is me talking: Could the witness see exhibit P325 please? And that’s the big packet, the packet that was produced by the police

of the thinner kind. And I said at the same time, this was probably a mistake on my part. I said: ‘Also, P3’ at the same time. So they both went up together onto the table up there in front of the witness and I said this to him: Mr Murdoch, the exhibit 325, the small … It says air ties here, but hair ties: … were found in your belongings. I think they’re two separate ones, 325 and 326. Exhibit P326 is the two single ones. You remember, there was a blue and a black one. And I said: Could you pass those over too please? So I asked them to all go over, two single ones. Are they the sort you used, Mr Murdoch? — These ones here are. Now that doesn’t tell you anything on the transcript, but I suggest to you that he was pointing to those in P3, the thick ones, that’s what he did. And then I said: The ones marked P325? — No, too skinny. I dispute they are mine, ‘cause in the photographs that you’ve shown … [page 154] There was photographs there: … all that gear in Adelaide, this packet has been sitting out in the sun and has been sun kissed. Now you can have a look at P325 and you see if it’s sun kissed. The packet that’s in the photo was all nice and clean. How can a packet be sun kissed when it’s been sitting in a cardboard box

for a couple of years? That packet there, I say no.’ He’s talking about Exhibit P325. What exhibit number does that have on it, Mr Murdoch? — P325, your Honour. So P325, did you say they’re too skinny? — Yes, and they’re sun kissed, they’re faded. So they’re not your property? — No. Now these are the ones the police produced and you remember we had to call the police back to identify them. What about the two thin ones, Mr Murdoch, the finger ones? I don’t know where finger comes from, thinner I think I was saying: No, they don’t belong either, no. Well, you see they’re the ones that were produced by the police officer here the other day? — No, they’re not. They might be, but they’re not the ones with the possession all came out of my handbag. So there he is, he’s quite upset about being shown thin hair ties which the Crown says are the ones that came from his possessions in South Australia and not the thick ones which the Crown says are of the style used by Ms Lees. He is using thinner ones — you can have a look at them, you can take them out of the packet if you want to, and you’ll find the thinner ones are far more elastic, the thicker ones are firmer. And you can accept or not, as you wish, that was a strange reaction and perhaps consistent with the allegations being made here, that the thick tie that is produced in evidence in photograph — the one that came from Joanne is the one that came from Joanne Lees’ hair on 14 July. Now you might think not a major point and perhaps it wasn’t until we got this reaction from Mr Murdoch. Sometimes these reactions can give you some knowledge of what’s going on. So he didn’t want to be confronted with the hair tie and the same problem with the manacles.

3.36

Wild suggests to the jury that Murdoch downplayed his trip across the Tanami Track.

MR WILD: Now let’s come to another issue about his evidence. Did he deliberately downplay, do you think, the way in which he was driving his vehicle on 15 July across the Tanami. Just plodding along, plodding along. This was not a holiday, ladies and [page 155] gentlemen, he was on a business trip. He was there to get from A to B, to get his product to the market place. He was not tripping. He was not being Tommy the tourist. Does he know, do you think, the way to drive across corrugations on rough roads, as any of you would who have driven in the Northern Territory on our rough roads. Does he not know that you accelerate across corrugations? Of course he does, he must do, but he tells you he doesn’t accelerate and doesn’t believe that’s the proper way to deal with it. That’s a matter that you’ll have to consider in due course. I suggest to you that he is playing with you. He’s not telling the truth on those issues. He is playing a game with you about it. He’s wanting to look as if he’s not in a hurry. You know from other witnesses that these trips are taken seriously. The idea is to get from A to B. They pop pills to stay awake while they’re doing it. So, it’s our submission to you that you treat that part of his evidence and therefore a great deal of his evidence with suspicion and you’re entitled to do that. 3.37

Wild returns to the topic of what to do about Murdoch’s evidence.

MR WILD: Now, because he’s the accused, it doesn’t make any difference to the way in which you treat him as a witness. You look at him as a witness and you accept that part of his evidence which you

regard as acceptable and truthful. A lot of it you might think is. That which is contentious, you might have different views about. As to his denials of his involvement in this matter, I suggest you will have no confidence at all and you will disbelieve him. You’re entitled, like every other witness, to accept some things he says and not others. And that’s for you to judge. You should not accept his evidence in relation to the mesh gates. I think at one stage before lunch I said that they were on on 14 July. You know what I mean. They’re not on 14 July. And that’s the Crown submission. It’s not just the number of witnesses that speak about it and I’ve hammered this all morning, I know. It’s the quality of the evidence that you’ve got which should make you accept that’s the case and the same applies in respect of the bull bar. Two very important matters which we spent a lot of hours on, particularly in the last day or two. If you don’t find him credible on either or both of those issues, and it’s our submission you shouldn’t, then you can use that finding, that lack of credibility that you find in his evidence in considering his other evidence. So, if you don’t believe him in respect of the mesh gates, and you shouldn’t, and if you don’t believe him in respect of the bull bar, and you shouldn’t, then you can use that in considering how good the rest of his evidence is. And we invite you to do that. 3.38

Wild suggests that the DNA evidence is damning and is the linchpin in the Crown case. He deals with this evidence in detail to show how Murdoch’s DNA was found on Lees’ T-shirt, the manacles and the gear stick of the car and how improbable it is to suggest any explanation for this other than the fact that Murdoch is the perpetrator. Wild answers criticisms made of Dr Whitaker and LCN DNA testing.

[page 156]

MR WILD: Now, I’m going to turn to the DNA. Now, some of you may have wondered why I didn’t start with this and then stop with it. Because it is so damning evidence in this case. It really, in our submission, is the linchpin of the case and it will help you decide the case. The Crown obviously has to prove that Bradley Murdoch was at Barrow Creek on 14 July. One of the things that happens at Barrow Creek on 14 July is that a man comes into the Kombi vehicle, assaults, wrestles with, whatever expression you want, Joanne Lees and clearly in the course of it, is into her back. And you know what I mean by that. He’s all over her and at the stage she’s down, head down between her knees and he’s trying to put the handcuffs on her and her back is exposed to him. The same applies when she’s walked along the bitumen, gravel, to the other vehicle. The man’s behind her holding her by the neck. He’s then forced her into the other vehicle, he’s forcing her into the back of the vehicle. At some point, all of that gives him, that man, the opportunity to plant whatever blood he’s got loose on a finger or on his nose or a scratch somewhere on her and that’s what happens. So it’s a fairly significant thing, isn’t it, that there is blood just there on the back of her T-shirt and you’ve seen it, you’ve seen the T-shirt. It’s exhibit P1. It’s the very first exhibit in this case. And you’ve seen it already and you’ll have it in the ‘witness box’ with you.25 So, the Crown relies on the DNA which is found on that T-shirt as being the most single significant piece of evidence in this case. And what it does is supports all of the other evidence that we’ve led and been talking about for the last day or so. It supports all of that. You can have a little bit of doubt about this or that. But this makes all of those doubts of no point because it ties this man to this woman on this day. Now DNA works in this way as you know, there is a match. We all have DNA and there are matches of our DNA with a database. And what the database says in this case is that the DNA that Bradley Murdoch has matches exactly the DNA which is found in the bloodstain, the blood smear on Joanne’s T-shirt. We have an exact

match and you’ve been told what that means, it’s an astronomical figure, I’ll tell you what it is again in a minute, it’s an astronomical match figure. We also have some DNA on the gear stick of the vehicle which is not unexpected, but it’s a mixed bag you might say, and the percentages aren’t so great, it’s a small percentage and I’ll discuss what it means to you shortly. And then we have DNA on the manacles, the handcuffs, the cable ties, by whatever name, and it’s deep in the interstices of the cable ties. Deep inside the layers of the cable ties and it is a match with Bradley Murdoch’s DNA, deep inside the cable ties. Exactly where you would expect the maker of the cable ties to have left his DNA, and it matches Bradley Murdoch and the figures you’ve got for that are 100 million to 1, or 1 in 100 million chances that a sample taken from some other person randomly would match that — 1 in 100 million. A very significant figure. So what does that mean? I want to deal with them individually for you and perhaps deal first with the T-shirt and this is where there is some interesting evidence and some interesting submissions. Because my learned friend, in his argument to you yesterday, talked about secondary and primary transfer. When Mr Murdoch’s giving evidence, ‘How did your DNA get on the T-shirt? — I don’t know’. We say he does know, but he says he doesn’t know. So there’s no explanation given by him for it. It doesn’t fly through the air, this DNA, just like that. We’re told about people blowing their noses, but of course if one of you blows your nose, Bradley Murdoch’s [page 157] DNA doesn’t get on the page in front of you, your DNA gets there, so it’s not a miraculous thing that floats around the sky somewhere. DNA has to be transferred in some positive way. Now my learned friend said this to you yesterday in his address, ‘The

situation you might think is this in relation to the blood or the DNA — blood you might think is obviously capable of both primary and secondary transfer’. That’s true if my finger is bleeding and I’d put it on Ms. Barnett’s shoulder, then there’ll be a transfer, that’s how it happens. There’s nothing stopping blood being transferred from me to you if we just bump into each other accidentally, if I’ve got a cut or blood on me. What you do know, members of the jury, and this is where it’s important is that Ms Lees was in Alice Springs, certainly for most of the day on 14 July and for a couple of days before. She was apparently wearing this shirt on 14 July during the whole time. There is on the very face of it, members of the jury, given that fact alone, the very real possibility, a very real possibility he says, that any blood on her T-shirt could have been a product of primary or secondary transfer while she was in Alice Springs, while she was in Ti Tree, while she was in Aileron if she was there. Now how it could have got on her at Ti Tree or Aileron is a bit of a mystery because we don’t know of Mr Murdoch being in either of those places on that day, but that’s what my learned friend says, ‘while she’s in Ti Tree’. He goes on, ‘What else do we know about Joanne Lees, the T-shirt in Alice Springs?’. And he says, ‘We know that she was at the Red Rooster’. There’s some uncertainty as to exactly what time she went there and then he talks about what Libby Andrew has on the brown paper bag and then Joanne Lees’ evidence that she left late in the day and he says, ‘But whether she was there in the morning, the afternoon or lunchtime is of no great consequence, because it’s the fact she was there and you might think Brad Murdoch was there on the same day that is important, because you know now that Brad Murdoch was in Alice Springs’. He’s told you the sequence of events. His evidence was, I think, between 10.30 am and 3.30 pm when he left to go up the Tanami he went to the Red Rooster. So there it is, it’s the Red Rooster where this has happened. That’s the very real possibility that my learned friend talks about. There’s obvious and reasonable possibility that given the evidence and

the information, there’s a very real chance that any of his DNA on the back of her T-shirt could have been accidentally deposited without anybody knowing about it in Alice Springs. Well, what do you think about that? The Crown says that’s the remotest possibility that ever has been discussed in this court. A matter that you might think we’re wrong, but just to say it makes it sound ridiculous in our submission. No suggestion that they were there together, they bumped into each other, that she bumped into the chair or the wall or anything else that Mr Murdoch may have done and when she was there, well, who knows with regard to his timing. That’s why it’s interesting, isn’t it, that when he gives his evidence, he says he was there at 10.30 am because that covers the rest of the day and all the possibilities when she might have been there. Interesting way in which he gives that evidence, because there’s nobody else to say what time he was there. It’s his evidence he was there at 10.30 am. No receipts, cash as you’d expect in Red Rooster, I suppose. So we’ll rely on his word entirely, for him being at 10.30 am which is a time carefully selected, you might think, to cover the whole of the rest of the day which she might have been there. Just in case there’s that vaguest possibility that you would believe such nonsense. Well, in our submission you shouldn’t. [page 158] Now the T-shirt is very valuable evidence. It was worn that day, she was jostled inside the Kombi. Isn’t it most likely by about 10 billion to 1 chance of her getting the blood on the T-shirt that it happened in the Kombi or outside the Kombi or in the back of the other vehicle, and not somewhere else, at Ti Tree, Aileron, anywhere else in the world. That’s where it happened, it must have happened, and you should accept it happened there. There are other good reasons why you should accept it happened there, just by the coincidences of all these events and the DNA that you’re dealing with.

Now the forensic biologist, remember Ms Eckhoff giving evidence. She examined the whole of the T-shirt, she took a number of samples, she found bloodstains on the front of it and you’ll remember that Joanne Lees was bleeding herself. So she’s got her own blood on this T-shirt. You can see the stains on it if you take it out of the bag and have a look. You’ll see it in the photographs as well. So it was said to be a light blue, French Connection, capped sleeve T-shirt that had the Camel Cup badge on, do you remember, that she’d been wearing at the Camel Cup, and you’ll see that close up. It had red staining on the front and back and it proved positive for blood. It also had some of Mr Millar’s DNA on it. Now how would that get on it. Do you think she’d been in the same pub as him sometime or do you think it got on her when she was rescued by Vince or taken into the Barrow Creek pub or when giving her a bit of a cuddle, a bit of calming affection, whatever, or do you think she was out in the bathroom and he’d been there and she rubbed up against a post or something. What’s the obvious reason? So the DNA is tested, the T-shirt is tested, there’s a presumptive test for blood. There’s a small — I’m reading this to you because this is from her evidence: There’s a small smudged stain … At page 815, your Honour: … near the back left sleeve. And as I said in my opinion, the whole area, as you can see in the close-up photograph has come from one stain. So, you’ll see if you look the T-shirt is bunched up a bit towards the shoulder cuff here, so there’s a bit — stains both sides of the — of the — where the seam meets there, and you’ll see that clearly enough. So it’s as if it’s bunched up, the smear goes across both sides and you can see that in the photograph. And the stain appears to be from one person, and you can tell that in the folds the way it’s in the material, they’re actually lined up as being one. You can see the folds in the material and they actually fold so that the main stain on the cuffed sleeving, matches that

or is part of the continuum on the back of the T-shirt, which is what I was trying to explain to you. She goes on: The most common way of a stain being left on the T-shirt was in a liquid form. A liquid form, as in it was wet blood, not dried blood, on a chair or on a wall or on a door post, wet blood, that’s the common way it’s transferred. And the pattern she said doesn’t indicate a flicking, it indicates a contact because of the smudged stain. Contact so that’s all consistent we suggest to you, with having been left by the man in the vehicle at Barrow Creek that night. So it’s blood and it’s smeared blood and it’s exactly what you’d expect to find, and it matches exactly, matches exactly the DNA profile of Bradley John Murdoch. [page 159] Now you’ve heard the figure, and it’s an astronomical statistic, the chance of a blood smear coming from someone else in the population, who is chosen at random, is 150 quadrillion times more likely than that DNA has come from the accused, than that it did come from the accused, than if it came from another person randomly chosen. One hundred and fifty quadrillion, a huge statistic. Bradley Murdoch’s DNA matches perfectly the blood smear on the back of Joanne Lees T-shirt. Now of course we didn’t know that and the police didn’t know that for a long, long time. Now it’s so important I can’t emphasise it enough for you. How did it get there? When she was cross-examined and talked about Red Rooster, no evidence that she ever stayed at Red Rooster for more than the time it took to sit down and have a drink of coke. So you should be satisfied if I sit down right now that this man committed this offence, but I want to tell you more. The gear stick, now one of the things we know happened is that the

Kombi was moved and despite Mr Algie’s suggestion, I suggest to you that it was moved by the man who killed Peter Falconio. Not by her, with her handcuffs on, but by Bradley John Murdoch. One of the things that our scientist expects to happen and this makes a lot of sense you would think, is that if somebody drives a vehicle, that’s a manual vehicle with a gear stick, their DNA will get on the gear stick. Not talking about blood in this case, all the other DNA that our bodies do have on our skin all the time, so you’d expect it. But of course more than one person often drives a vehicle, so you’re going to have DNA from more than one person perhaps and you might think it’s logical that the last person on, is going to express the most DNA, and the person before the next most and down the line, and it may be there comes a point, this is the evidence that you’ll be considering that it’s overtaken by the person, the last person on top as it were of the gear stick, or the steering wheel or something else. I’ll come to the steering wheel later. So when Ms Eckhoff was in Alice Springs inspecting the Kombi, she made a swab of the gear stick — there’s no arguing about these things apparently — which was found to be negative for blood. So it’s not a blood smear, this one. And the swab was of the entire gear stick and it was extracted and tested by Ms Eckhoff and retained in a liquid form. I just interpose here and say this: allegations flowing through this case of contamination and, worse, corruption of items against the police officers, you’ve heard them been made. Why didn’t they stick some of Bradley Murdoch’s DNA on the steering wheel? Wouldn’t that have been simple? If they’re up to dirty tricks, isn’t that the obvious one? Or make it a better mix on the gear stick than the one I’m about, to tell you about which is really quite a low percentage in terms of the quadrillions we’re talking about a minute ago. So it’s a low figure but it’s still a figure that is useful to you. Now, the result — and I’ll tell you the result now so you remember it — the result is 19,000 or 13,000 depending on whether Mr Buckleton’s evidence — I’m sorry, that’s not right — Dr Whitaker’s evidence was 19,000: 1. A 1 in 19,000 chance and the other figure is 13,000.

So take the lower one and I suppose if you were doing it statistically, you’d say 1 in 10 or 20 people in the Northern Territory at the moment, it could be. So it’s a low figure. But you have to take it in conjunction with the fact that you’ve already got the man’s DNA on the T-shirt. You’ve got a lower ratio, a lower proportion, a lower statistical probability rate on the gear stick. Now, what happened was that Ms Eckhoff tested it. She used routine methods and you know now the difference. Probably you wouldn’t be able to write a paper on it but you know the difference between normal DNA as discussed by Ms Eckhoff. [page 160] Doctor Whitaker knows about it, of course, and Dr Both who talks about normal DNA accepted for a bit longer than the LCN, you might think. But, she subjects it to the normal DNA, gets a partial profile and her finding was that Mr Murdoch could not be excluded. Could not be excluded. So he was still in there as a possible donor. That’s how it works. Now, then she thought of Joanne Lees as a possible contributor which has some sense about it, you might think. And she thought Joanne Lees, rather than Peter Falconio, was the other contributor. But, because the quantities of DNA were so low on the gear stick, it was thought appropriate to take the sample to Dr Whitaker who uses low copy number DNA which is a scientific method proved — despite what our learned friends would say about it — in the United Kingdom and we’ll talk a bit more about that in a minute — and he tested it, she took it over to him in person, sealed with paraffin film and kept frozen for the right continuity to protect the item and he subjected it to his special testing and you’ll find the results in exhibit P227 as far as that’s concerned. The profile he thought was incomplete, there was a mixed profile. He

subjected to his normal analytical processes. He took the view, as he does, that you have expectations as what you might find, the same expectations that you and I would have. As he said to us at one point, ‘It’s not rocket science, this’. You expect to find someone’s DNA on items they’ve used. They[‘ve] done special research in his centre in relation to gear sticks and steering wheels and low quantities of DNA and found that you do get these samples. So, there’s a mixed sample there and he found that the major contributor to it was the driver of the vehicle, the second driver, the last driver who might well be thought to be the person who moved it. In other words, the offender and his finding was that that was Mr Murdoch and he then found there was a secondary contributor and that was Mr Falconio. So he did his statistics, he did his analysis, he was cross-examined about all this of course and his finding was that there was a mixed profile mixture of Peter Falconio as the minor contributor and Bradley Murdoch as the major. And the results he provided as a result of that was, as I said, 19,000 as opposed to the other doctor, 13,000. So that’s a fairly significant finding, you might think. My learned friend said, ‘Well, why not use the approach and put Joanne Lees in as well?’ and Dr Whitaker didn’t think that was the appropriate approach, using his methodology but nevertheless if you were to do that you might get a lesser figure but you will still have Bradley Murdoch’s profile — partial profile on the gearstick. That you might think, is fairly significant, even though it’s a lower number by a bit of a number of naughts. Now let’s talk about the cable ties. Now one of the things, exhibit 176 over there, shows that it’s a very complex set up and it doesn’t take much thinking about it to realise that DNA of the maker is going to be deep inside it. Now what happened is that the police forensic centre here in the Territory did some preliminary work on it and found, as you would expect, that there was DNA present of Joanne Lees on those restraints which she’d worn for some time. Now one of the things that happens is that through the tape on the

cable ties they’re porous to, for example, the lip balm that Joanne Lees was using. So her DNA in fact had soaked through to the inner layers. So when Dr Whitaker did what you’d expect him to do, using his knowledge and experience to go right to the heart of these cable ties, right inside them to test, what did he find, he found the DNA of the maker, the maker of the cable ties, which is what you and I might expect. [page 161] But because the samples are in small quantity, it’s necessary for him to use his method of low copy number, a method of testing in order to find and see and analyse the results. So the result he gets by doing that work is a mixed profile but which has a very much more significant major component as far as matching Bradley John Murdoch. And that’s what makes this evidence, in our submission, so powerful. Just as a side point. The DNA isn’t the only thing that you get from the cable ties. Ms Eckhoff found a short white hair. You might remember the evidence about that hair examined by Ms Tridico, in her opinion was typical of being a dog hair. It doesn’t go a long way but there is a white dog hair stuck to those cable ties. That may be of some assistance to you. You might expect there to be some dog hairs somewhere, given the story that Joanne Lees has told you. Now a couple of other things you might bear in mind. Superintendent Kerr gave evidence that she tried to make some of these cable ties and the material that she used was very sticky. Do you remember her saying that it stuck to her hands as she was trying to make it? And that’s consistent, I think, the DNA of the maker being imparted to those ties, exactly as Dr Whitaker found them. Now you might think that Dr Whitaker was a very impressive witness. He said to you that his view was that if you undo the ties and get right into the middle of it, that you would find a matching DNA with the maker of it and that’s when he said it wasn’t rocket science in that aspect of it. This is the way he expressed his finding.

There was one sample — so he did a lot of samples, this is important. There was one sample that had a profile that matched Mr Murdoch. That was Sample 12 which was in the adhesive surface of the innermost layer of tape on the inside of a loop. It was a mixed profile. It had clearly identifiable major and minor components which Dr Whitaker could separate out just on the basis of scientific principle. He wasn’t doing this on a whim. He’s a man who’s researched this area, analysed this area, he’s an acknowledged expert despite Dr Both’s views about it. You will recall he talked about apples and oranges and how he reads them, that’s his skill and just by looking at the size of the alleles he could tell which were apples and which were tomatoes. Doctor Both, I think used vegetables for work. The major profile corresponded to that of Mr Murdoch. It was almost complete but it wasn’t a 145 quadrillion match, it was 100 million match, that you might think is good enough for your purposes, with a minor profile correspondent to Joanne Lees. The results of that analysis are set out in exhibit P226 and he told you about the major/minor difference. It’s exactly what you’d expect to find given what I said to you before, that there’s this porous aspect to the tape and Joanne Lees’ use of the lip balm soaked through with her DNA going through with it. So that’s why you find that inside. But on the other layers of the — the further ones out, no finding of Bradley Murdoch’s DNA. Now what you might think is significant about that is that if the police had corrupted this item, contaminated this item, they would have done a better job just in one spot. Just imagine, they got a bit of blood from Mr Murdoch and let’s pour it on top, well, you’d have it everywhere. They somehow or rather have got it deep inside where on Dr Whitaker’s evidence to you, there is no sign of it having been cut or opened, unsealed, since the article was made. He was asked these questions and he gave that evidence to you. Nor could he see any evidence of contamination and you would have expected if there had been some to have this DNA all over the place. You wouldn’t need low copy number methodology to find it, it could

have been found anywhere, in any laboratory. [page 162] So you expect to see a match, Mr Murdoch in the circumstances and what he says — and this is at page 946: If the DNA profile had originated from an unknown person, unrelated to Mr Murdoch, then I’ve assessed at a fair and reasonable estimate of obtaining that profile would be 1 in 100,000,000. That means it’s 100 times26 more likely to get that DNA profile if it had originated from Mr Murdoch rather than from someone else. And Dr Buckleton agreed with that. Dr Buckleton, I was trying to think of before, is the man who suggested the 13,000 figure for the gear stick. So he says if Mr Murdoch’s profile is only there by contamination, would you find any other profile of the possible maker and he says, ‘No’. The other thing that he says is that if Mr Murdoch’s DNA is only there by contamination or corruption, then you would nevertheless expect to find DNA of the original maker. So who’s the original maker? Bradley John Murdoch, that’s what he finds. As he says, a deliberate contamination would contaminate all of the areas, not just one little section. He rejected absolutely that the DNA could’ve got on there by any contamination or corruption and you will remember he was cross-examined about his methodology and he made it very clear that his results were accurate. My learned friend, I think, objected to his confidence27 in this area but this is what he said: I repeat the results are accurate, they’re reliable. This is at page 960.

They’re duplicated, they’ve been checked, they’ve been peer reviewed, they satisfy the research, they satisfy the validation. And then he’s pushed a bit on this, and he says: I’ll say it for the third time, the interpretation is right, we’ve applied rules, guidelines, what you’re trying to highlight is things which I’ve absolutely taken into account. He’s been doing this for six years and he’s the acknowledged leader in this area. The position of the bands relative to other bands, the height of bands relative to other bands, what allows me to interpret the profile and determine which are the alleles and which aren’t, that’s my field, that’s what I do. And that’s what Dr Both doesn’t do, as she told us. So Dr Whitaker is the expert, and he provides it to you, it’s up to you whether you accept him or not, but you heard him and in our submission, you’ve got no reason to doubt the validity of his findings, the way in which he expresses them and the net results. And the net results in our submission to you are very, very significant. [page 163] Just excuse me a moment, your Honour. Now Dr Both came into court and criticised the science and criticised LCN DNA testing and you heard the doctor give evidence, and as I said yesterday, and I meant it, she is well qualified but this is an area — and I say this with the greatest of respect to her, [which] has overtaken her, this is another stage of DNA testing and she doesn’t accept it yet. It’s not as if she’s saying the world’s still flat, but ‘We haven’t got to the stage’ she says, ‘in South Australia of using this method in our laboratory’. There was some pressure put upon her to say why this was so and, ultimately, you might have found it a bit

difficult to understand why this was so. You thought perhaps it was too difficult, maybe that’s what she was saying. She was saying they didn’t have the validation system in South Australia, they didn’t have the same laboratory facilities that they have in England — well, that’s obvious enough — and therefore she wouldn’t do it. There was argument from her that it couldn’t be checked, and his Honour asked: Why can’t you check it? And she said: We don’t check it. But why not, and it was very difficult to get any clear view from her as to why not except, ‘We don’t do it’. ‘We don’t do it.’ So the argument was you’ll remember the Crown had provided a sample, and said that, ‘There’s a sample available, check the results’. ‘No, no we don’t want to check the results, we don’t check results, we can’t do it’. ‘Nobody in the world does it’, they said. And then it turned out, you might remember that New Zealand is about to set up — another colonial group is going to set up a laboratory, just looking at that in the near future. So you might think that her evidence didn’t assist you very much and she was asked if it could be done physically I suppose, and she says, ‘You might’, but eventually his Honour got her to concede that it could be done. But she didn’t want to do it, did she, you remember it. I think she was asked this question by his Honour: It’s like all new steps in science, it’s introduced it becomes subject to scrutiny and then if it withstands scrutiny it becomes acceptable. And she said: That’s right. And of course it had been used in England since 1999, Dr Whitaker

is one of the founding people at the laboratory, they are aware of all of the same things that other people who do DNA are, and there it is, good science is often challenged in the courts as you know, and eventually it becomes accepted. So there it is. And there’s also — as you heard — another organisation in England called Forensic Alliance. You’ll remember that Dr Whitaker comes from forensic science whatever name. There is another organisation Forensic Alliance which does the same work and could check it if required. Doctor Both hedged bets a bit about that and said, ‘They used to be able to do it. I know someone who’s there who now works in South Australia’, but no evidence to [page 164] suggest it couldn’t be done at this other organisation. And you’ve got Dr Whitaker’s evidence that it has been used in places apart from the FBI. Apparently if the FBI don’t use it, that’s really significant. Well, ladies and gentlemen, we colonials and the British Commonwealth still have something to show the Americans. So I wouldn’t be too concerned about what the FBI do. Their track record may not be as good as ours in some areas. So, I just want to sum up this area for you. Dr Whitaker said a lot about expectations in this area. Now, what might our expectations be? We’ve got a man in a vehicle all over a victim. There’s DNA on her Tshirt from blood from him. Then there’s a vehicle driven, there are some handcuffs which he used on her. Would you not expect to find DNA on each of those items from the offender? Yes, you would. And what do you find in this case? DNA which matches the offender. In each case the same DNA. Statistics are different. The probabilities are different. One hundred and forty five quadrillion, hundred million, 13,000–19,000. Very significant figures. And you might think very powerful evidence in this case. I want to correct something I said earlier about the gear stick results

from Dr Whitaker and I told you there was a major/minor split. Now, I want to qualify that slightly. You will recall that Dr Whitaker spoke about apples and tomatoes, and being able to put some results into a major profile based on just their size. And he was able to do that with the cable tie results and give the result we spoke of. It was not so clear with the gear stick, and the sort of distinction between the major and minor contributors didn’t apply across the whole of the mixed profile, it only applied at some of the alleles and to the extent that there were major elements, which he thought were present, they all belonged to Mr Murdoch. The most important demonstration of this major/minor differential comes in the case of the cable ties where he says there was a very obvious major and minor split between Mr Murdoch on the one hand and Ms Lees on the other. And the net result of all of this, you might think, is you get different probabilities and the different statistics that I’ve put before you. Now, I just thought I should explain that as well. I told you that Dr Whitaker put a 19,000 figure on the gear stick and Dr Buckleton, whose figures you have, put a 13,000 ‘dollar’ figure. Now, there’s not a great deal of difference in Territory terms, you might think, in respect of those figures. However, I should tell you that what Dr Whitaker does, he uses the base that he’s familiar with to do his calculations and Dr Buckleton has used the Northern Territory base. So the figure reduces because of that different base. Now, when we get to the cable ties, they both have the same figure of 100,000,000 because using the databases and the probabilities, they get to the same result. So you don’t have to differentiate. In real terms, the difference between 13,000 and 19,000 is not a great deal and it is still in the context of this case a very significant matter. And I’ll explain that to you in this way. Now, it works this way. Any of these figures we’ve given you, three separate items with DNA, might be capable of an innocent explanation. You might be prepared to accept that the gear stick DNA, for example, it’s only a partial profile, which 20 people in the Northern

Territory statistically have the potential to donate because of that figure. But the strength of these three separate pieces of DNA comes, not from looking at them alone, but by looking at them together. [page 165] Now, I said to you earlier you could probably stop with the DNA on the T-shirt. But, look at it all together and it becomes the collective powerful, powerful pieces of evidence. So, ask yourself these questions: Mr Murdoch is completely innocent and yet, by the most unfortunate combination of events, blood comes to be on a chair or a wall or somewhere, wherever, and then happens to become smeared on the back of the T-shirt of the young woman who just happens later that day to be in a four-wheel drive, having been put in it by a man who’s overtaken a Kombi which she’s in, a man who happens to look like Mr Murdoch, has a dog, has a gun, all the things that we know, pulled over with the boyfriend and she’s attacked. The attacker leaves no DNA on her but Mr Murdoch, who accidentally left his DNA somewhere in Alice Springs earlier that day, did. How unfortunate would Mr Murdoch be? And then you add this: somehow or other, some other person, perhaps even the person who’s responsible for the killing and the attack, deposits DNA which matches Mr Murdoch on the gear stick of the vehicle which is driven off after the young woman’s attacked. How unlucky would you be with those two sets of circumstances running against you? And then the third one: in this most remarkable of possible coincidences, your DNA turns up deep inside the cable ties, the only thing clearly able to demonstrate a connection between the crime and the statistics indicate it’s a hundred million more likely to have come from Mr Murdoch than anyone else. So you’re asked to conclude, this has come about from innocent or devious means. Mr Murdoch is in no way connected to the crime. A

combination of those three things and I said at the outset to you, of those three things put together, makes this as powerful [a] case as you could expect there to be. And all of this, ladies and gentlemen, all of this DNA is on top of the identification of this man by Joanne Lees. Or you might discount it by itself. The vehicle that he has, the dog that he has, the gun that he has, the fact he’s on this road on this night, on this day, all of those matters which you’re entitled to take into account. 3.39

Wild returns to the subject of contamination.

MR WILD: I have to say a few other things. Contamination has been talked about and I just touched on it a minute ago. I’m not sure whether really you want to hear too much about this, given the matters I’ve just put to you, but I have to do this. Tim Sandry, the senior examiner, took the handcuffs to Adelaide and he was a palpably honest witness, I suggest to you. In fact three times he was an honest witness. You’re the judges of the fact and our submission will be that you’ll accept his evidence entirely. He would not have contaminated that item or any other item or anything like. This is a man who has a lively awareness of what contamination is about. He told you all of that and you should believe him. So, who was it who contaminated the cable ties? One person contaminated the cable ties and that is Bradley Murdoch, he contaminated them with his DNA when he made them. Now the contamination of course is important to the defence for the reasons I’ve [page 166] just told you about the DNA. How did those three lots of DNA get there if they didn’t get there from Bradley John Murdoch? And in our submission [you] could not possibly accept any combination of events

apart from the ones we’ve pointed to. You heard, my learned friend makes an issue of it, that Dr Thatcher’s DNA was on these cable ties at some point. Well, that was on the outside and you heard the circumstances of it and they have a system that produces the answer. ‘Okay, whose DNA is that?’ ‘Well, it’s mine, I’ve made a mistake, I perhaps handled them without any gloves, I touched a pen, something like that’. But here he is, he’s here to tell you about it, all of them are here to tell you about it. There’s no cigarette butts, there’s no evidence of contamination at all. I wrote these notes for you but I’m not going to trouble you with them. You’ve got to have evidence to act on, ladies and gentlemen, before you can make assumptions, to throw allegations at police officers. There’s nothing in this case that you could rely upon that would be of any assistance to you. There is no suggestion of contamination of the T-shirt, it’s only this possible bumping into somebody or something transfer. 3.40

Wild returns briefly to the finding of the tube of lip balm and the footprints found at the scene.

MR WILD: I was thinking, overnight, of the lip balm. You know we talked about the lip balm lid that was found in the bush. On that first day the police’s inquiry was for a body, a live body hopefully. They were looking for Peter Falconio on that first day and the second day and the third day, huge resources involved. The lip balm lid was found by those police officers, remember when they walked through the bush, and they guarded the spot, as it were. I don’t think I made this clear to you yesterday, but I should remind you, but when that was found, Officers Spilsbury and Sandry were in Ti Tree. They were down there having a briefing, 60 km down the track. They had to be recalled to do their forensic work. Now in those circumstances — and Mr Fielder came back and took the photos — and those circumstances you might well think that by the time they got back there they would have expected the rest of the search to have

been done. So the misunderstanding, I suggested to you yesterday, is explained more properly in those circumstances. The guard is left there guarding the items, there’s no further searching done. I told you there was a footprint there. You’ve been told that it didn’t match any of Mr Murdoch’s shoes. Mr Murdoch’s shoes 12 months later we’re talking about, not Mr Murdoch’s shoes then, whatever shoes he might have been wearing at that time. I suggest to you, you know what he was wearing, 003845, he was wearing thongs, you can see it in the video, that’s Mr Murdoch. When those pieces of tape were found, black tape, you’ve got them, exhibit 129. You’ll have them next week to look at, have a good look at them. Take them out if you want to, you — you can use gloves — or whatever as you wish, and just compare them with the exhibit here of the manacles with the tape that you’ve got and you’ll see the grid on them and you can make your own comparison. It’s not detective work, it’s just what you can do. So to forget about contamination in this case. DNA [is] powerful evidence for you, you can rely upon it, and you should rely upon it. [page 167]

3.41

Wild discusses the question of motive, which, if it can be proved, can also be a piece of circumstantial evidence. However, Wild cannot prove a motive. All he can do is to suggest some possible motives which might be drawn from the evidence, which is perhaps a way of dealing with the problem that no motive has been proved. Even though no motive is proved, Wild submits that the evidence shows that the killing was premeditated, that is, Murdoch intended to kill.

MR WILD: Now on 15 July 2001, there was a gunman on the loose in the Northern Territory, and the police were mobilised looking for him. You heard the effort that was put into it, a massive undertaking at that point. Three hundred kilometres away from Alice Springs, the nearest

big centre, is where the police are based, roadblocks are set up — this man’s got to be found. He’s just killed somebody, that’s the suspicion at that point, and this woman has been tied up, escaped, this man is out in the bush somewhere, they’re looking for him. And the fear the police have as you might expect is that they’re going to be too late, they’ve lost four or five hours already by the time the woman is brave enough to get out on the road and be rescued. The best they can do is put their roadblocks on the arterial and we know, I suggest to you, where the man was by the time the roadblocks were up, which is daylight at the earliest probably, the man’s up the Tanami, long gone. Even though, he’s had to go back to Alice Springs to fuel up, and perhaps pick up his trailer. Once he was gone and up the Tanami the chances of getting him were very, very slim. An experienced bush driver gone and kept going and got to Fitzroy Crossing as soon as he could, out of there. Now you know the width of the police investigation, you’ve had a lot of evidence about how thorough the searches were, they were unsuccessful but the effort was put in and we had evidence you remember, of Mr Hall’s officers racing up the Tanami, to chase that fellow that they saw as a suspect. It turned out he wasn’t. That’s the kind of work they were doing and that wasn’t happening just there. You’ve heard how many reports and things the police were dealing with. But this man was gone, he knows the bush, and in the meantime the rest of us are left wondering what’s happening. Now you might think if this was the action of some crazed gunman, he’d have been found pretty quickly, but this man is not a crazed gunman, this man is cunning, alert and a practised driver, fit, awake on speed, able to move quickly and get away, but he’s a fastidious man as we know and he is concerned to clear that scene as best he can, as quickly as he can and he does so. The car is off the road, the car left on the road is a focal point, it’s not found until the morning you’ll remember, until daylight when people can search. He tries to hide the blood. He moves the body to a safe place, a place where it’s not been found since. The possibilities of the police getting him were pretty slim, you might think, and so it

turned out to be, except for the DNA on the back of the T-shirt. As long as he could stay away, he was safe. Eventually he couldn’t. Now you might think that this whole episode that occurred, although we can’t tell you exactly why it occurred, was premeditated. Why do I say that? Because the handcuffs were pre-made weren’t they? These handcuffs are not things you sit down and make like that. These had been made some time before. We don’t know when before, we don’t have a use by date on them. They’d been made beforehand and you’ve got some [page 168] evidence as to when they might have been made and where they might have been made. We know by whom they’re made because you’ve got his DNA on them. So he’s had these available for whatever it was that he had in mind on this night. His Honour’s going to tell you later that the Crown don’t have to establish a motive and you might think that’s sensible because in many, many cases, you and I — none of us could contemplate killing someone, a person, so you couldn’t contemplate reason for it, perhaps, and I can’t supply that to you. All I can do is point to the fact — these two factors that might help you somewhat. They might not, I don’t know. Two factors. One is what he says to Bev Allan, ‘I was being followed, I had to deal with it’. Those being words of a man dealing in drugs, carrying a gun for protection. That’s one thing. Now you might think a bit fanciful that he attacks a Kombi driver, but if he happens to see the Kombi two or three times that night and it appears to be following or overtaking him, it might well be he thinks that. That’s one possibility. Because we know that he carries the gun for a purpose, he told us. And he’s carrying 20 pounds or more of cannabis. I don’t think we’ve ever had any value put on it but we’re told that he carries thousands of dollars on the reverse trip to buy. You

can assume it’s not peanuts we’re talking about. So that’s one thing. The other thing is this. When Joanne Lees set off from Alice Springs that day driving north to Ti Tree, she was driving and Peter sat in the back and he’s reading a book, he went to sleep. So there’s a point there, isn’t there, you might think, where that vehicle is being driven along the road by a single female. Whether that has anything to do with it, I can’t help you. But the fact is we know that after Peter disappeared at the back of the vehicle, shot dead we say to you, she is trussed up and kept in the back of the vehicle. We know that. Why? There it is. So that’s the situation that we had on 15 July 2001 and the situation you have today with respect is that you know who did that, he’s sitting in court opposite. Now his Honour will give you directions on the law. I don’t talk about the law at all and I should say something however, about the offence of murder, because that’s what the Crown has alleged and I’ve already told you the Crown doesn’t have to provide a motive. Murder, by its nature, happens in the pitch black of night. No one there to see it. In this case, someone almost sees it, but even then doesn’t see it. So, we have to rely, in this case as I’ve said to you earlier, on the circumstances that led to it. His Honour will explain all that to you. The submission we make to you is that you should find that Peter Falconio died of a gunshot wound from a handgun fired by Bradley Murdoch. And these circumstances are helpful to you: he waved them over, this man; he was armed with a loaded weapon; he carried constructed handcuffs. After the shooting, he restrained Joanne Lees. He removed the body and hid the vehicle and he fled from the scene. As we’ve told you, we say he fled via Alice Springs. Now, all of that is evidence of premeditation. The importance of that is that the man who shot Peter Falconio must have intended to do so and intended to either kill him or do grievous harm to him. His Honour will explain that to you. But, if you put those circumstances together, then it’s the Crown submission although you didn’t see it happen and Joanne Lees didn’t see it happen, you can use the circumstances which you find to be

proved before you to find Bradley Murdoch guilty of murder. And that’s the way that you should carry out your exercise. [page 169] Now, ladies and gentlemen, what type of person would manufacture those handcuffs? Try to hide the blood, would clean up the scene, would try to prevent blood going into his car, perhaps using Joanne Lees’ jacket? Would hide the car, would dispose of the body in such a way as it wouldn’t be found for a long, long time, if ever? I suggest to you it would be a meticulous, perhaps obsessive person who would do those things, someone just like Bradley John Murdoch. You should be so satisfied that he was the man. If your Honour pleases.

1 2

3 4 5 6 7 8 9 10 11 12 13

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See Exhibit P135, Photo 19. This witness was Kylie Whealans, who gave evidence that on Saturday 14 July 2001 at 11.28 am she had a phone call with Ms Lees, who told her about various things happening in Alice Springs that day. Kylie Whealans was known as ‘Amanda’. The lip balm and cable tie. There was evidence that the grease on the cable ties and the lip balm were tested by a chemist, Dr Thatcher, who found no significant difference between them. Although it was not New Year’s Eve, that was the theme of the party. This is obviously a slip of the tongue. He meant Lees. See Exhibit P61, Photo 20. The small white object in the photo is the roof of the Kombi Van in situ. Photo 14. 2001. 2001. 2001. This is an implied criticism that the rule in Browne v Dunn (1894) 6 R 67 was not complied with. This rule requires, as a matter of practise, a witness to be cross-examined on an area about which there is contention and given the opportunity to comment upon a contrary version, if evidence is to be called to contradict what the witness has said. Wild is acknowledging that the truck stop video is only one piece of circumstantial evidence; that is, even if it is of no value, this does not result in the Crown case falling apart, because there is a lot of other evidence to support it.

15

16

17 18 19 20 21 22 23 24 25 26 27

This is a way of saying that the defendant has denied that it is him in the video when on the evidence it is him, because he thinks that if he tells the truth it will be damning. Ultimately, it is put as evidence of a consciousness of guilt. This is also a form of circumstantial evidence in itself. Wild is referring to the fact that Mr Hepi was an accomplice in the drug business and because of this, and the fact that Hepi had cause for believing that Murdoch had informed on him to the police, he had his own purposes to serve. Wild is here dealing with the fact that the trial judge will give a stern warning about the dangers of accepting evidence from a witness of this kind. That is, to the police. See Photo 11. See Photo 11. See Photo 12. Murdoch described his trip across the Tanami Track in these terms to indicate he was taking his time pretending to be a tourist. Brett Duthie was a mechanic who owned West Kimberley Diesel, who employed Murdoch part-time and was familiar with his vehicles. See Photo 11. Buchanan Highway. He obviously means the jury room. This is an error. It should read ‘100 million times’. This is probably a typographical error; it should read ‘competence’.

[page 171]

CHAPTER FOUR THE TRIAL JUDGE’S SUMMING UP TO THE JURY OVERVIEW 4.1 What follows is a very careful, obviously well-prepared, summing up by the Chief Justice. It is instructive to see how his Honour wove into the narrative the arguments of counsel, the logical way in which he dealt with each of the many issues which were in contention between the parties, and how he managed to remain objective and impartial throughout his summing up. We shall see also that from time to time his Honour introduced an issue and divided it into a number of logical steps upon which a decision could be made, before proceeding to the next step, leading to the reaching of an ultimate conclusion about a particular issue. Often, each step in the process involved determining a fact in issue from circumstantial evidence, which in turn was used with other circumstantial facts to lead to another circumstantial fact, which in turn was used to lead to a conclusion, which in itself might have only been a circumstantial fact. At the beginning of his summing up, the Chief Justice explained to the jury some general matters which are customarily dealt with in every criminal trial. These included the role of the jury as the sole arbiter of the facts, the role of the judge as the sole arbiter of the law, the burden and standard of proof, some general observations about the witnesses, the importance of crossexamination as a tool for assessing the reliability of witnesses, and how witnesses’ recollections can be affected by the passage of time or the experience of a traumatic event. In this case, the Chief Justice was anxious to ensure that in assessing the evidence, the jury did not improperly use evidence which suggested that Mr Murdoch was a person of bad character

and therefore the sort of person who would have committed the offences — a type of reasoning called ‘propensity reasoning’. Usually, evidence of bad character cannot be led by the Crown unless the accused puts his or her own good character in issue. In this case, there was evidence before the jury about Murdoch’s involvement in drug-running, the fact that he had a pistol in his car and the fact that he had been charged with rape. Normally, every effort would be made to exclude evidence of this type because of its prejudicial effect, but in this case it was necessary to admit it into evidence in order to prove other facts which made up the circumstantial case which the Crown had to prove. After telling the jury to ignore anything they may have heard about proceedings in South Australia involving Murdoch, including a comment made by Mr Hepi concerning those proceedings during crossexamination, the Chief Justice continued with some general remarks about the task of making an assessment of the witnesses.

ADDRESS TO THE JURY HIS HONOUR MARTIN CJ: I will give you a warning about Mr Hepi’s evidence later, but it must be perfectly obvious to you that there is no love lost between Mr Hepi and the accused and, to put it colloquially, that Mr Hepi has an axe to grind with the accused. [page 172] Whether you accept all or any of Mr Hepi’s evidence will be a matter entirely for you. But you must ignore completely his reference to events in South Australia, other than events in Sedan; and I remind you in connection with those South Australian events that the accused was acquitted. I am sure you will appreciate that you must approach your task of assessing the evidence in an impartial and dispassionate manner. If feelings of sympathy or anger have been aroused in you during the course of the trial, and as I said earlier feelings like that can be aroused quite naturally, you must put them aside and approach the

evidence without being influenced by them. I need to say a few words about the assessment of witnesses. First, the accused has given evidence. He was not obliged to do so. Having chosen to give evidence, he exposed himself to cross-examination by counsel for the prosecution. Cross-examination, as you will appreciate, is the way in which the reliability and the credibility of the evidence of all witnesses is tested in our criminal courts. You will approach the evidence of the accused in the same way as you will approach the evidence of all other witnesses. As counsel have told you, you have the absolute right to accept or reject any evidence that has been given to you in this court and that includes the evidence of expert witnesses. You may accept or reject the whole of any witness’s testimony. You may reject some part or parts of a witness’s evidence and accept other parts of that same witness’s evidence. You may have a doubt about a part of, or parts of a witness’s evidence, yet accept other parts. As I said, your right to accept or reject any part of the evidence given to you includes evidence given by expert witnesses. Naturally evidence from witnesses who are expert in a particular field requires very careful consideration, but you are not bound by their opinions. It is part of your function to determine whether you accept all or any of the evidence given by each of the expert witnesses. Now, in the context of expert witnesses, a number of them were asked whether they had previously given evidence in a court and whether their evidence had been accepted. Invariably they answered yes. Ladies and gentlemen, there are legal rules governing whether a person may give expert evidence and those questions about whether their evidence had been accepted were directed to whether the witness was qualified in law to give expert evidence. Although they were asked whether their evidence had been accepted by a court, in reality they were being asked whether they had been permitted to give expert opinion evidence to other courts. They were not being asked whether the court accepted their opinion evidence as reliable or otherwise. Please understand that you must not proceed on the assumption that

somehow, these witnesses gained extra credibility because they have previously been permitted to give expert evidence. We do not know, one way or the other, what view the courts or juries took of the reliability of their evidence and, even if we did know, the opinion of others in the past in different cases is totally irrelevant to your consideration of the reliability of the opinions that were given to you in this matter. Returning to the topic of witnesses generally. You should have regard to your impressions of each witness while giving evidence and to the intrinsic likelihood of their evidence. Were they straightforward and open or were they evasive? Consider how the evidence stood the test of cross-examination and how the evidence fits with other evidence in the case which you find to be convincing. You might think that this last factor [page 173] of how the evidence of a witness fits with other evidence in the case which you accept is particularly important in this matter. It is also important that you make allowance for differing abilities to give evidence. You have seen an exceptionally large range of personalities pass before you into and out of that witness box. It was a wonderful kaleidoscope in one sense. Some witnesses find the experience of giving evidence in court more daunting and traumatic than others. Witnesses vary greatly in their ability to express themselves. Education and intelligence levels vary greatly. The witness who has difficulty through nerves, language or for any other reason, may never the less be truthful and accurate. Now, I would like to spend a few moments discussing with you factors that you might think can play a very significant part in affecting the memories of witnesses and the reliabilities of the accounts that they have given you. Our ordinary experience tells us that there are many matters which can affect the accuracy of a person’s recall of events. It might just be the passing of time and you know that the critical events

occurred over four years ago. As much as moments of great significance can impress themselves on the minds of people involved, you might have little difficulty in accepting the fact that memories fade and change over such a long time. You would only have to think back to events in your own lives of significance, such as weddings and birthdays, to appreciate that after four years you cannot remember everything. If you are lucky enough to look at a video of events some years ago, while watching the video you are likely to think to yourself, ‘I had forgotten that’ or ‘That is not quite how I remembered it’. You might even think to yourself, ‘I do not remember that at all’. Perhaps, what you see on the film is something that you did see at the time, but you had forgotten or it might be something that you would expect to have seen because you were there but because you were concentrating on something else for a moment or two, although the event was in your vision generally, it did not impress itself upon your mind. It could be that you were concentrating on something else that took your attention and you did not take in the event, even though it was quite close to you. I am not sure whether this is a good example but perhaps umpires on a football field might provide an example. They might be concentrating on one particular aspect of the play and not see something alongside about which the crowd roars mightily. It all depends on where the concentration is placed. Sitting in this court over the last few weeks, some of you will have noticed things happening in the court or expressions on the faces of people in the court, that others will not have noticed or remembered. May I give you a couple of simple examples in this case from the uncontroversial evidence of the truck driver, Rod Adams, who was asleep in the truck when Ms Lees jumped out onto the highway. Mr Adams told you that after they helped Ms Lees into the truck there was conversation. And then he gave this evidence: There was a small conversation but she kept asking about her boyfriend and I just looked at Vince and he looked at me went, ‘What boyfriend?’ and she said, ‘Peter’. I’m still taken by it. A lot

of things get said, a lot of things don’t get said, you remember certain things, you remember nothing. You might think that is a good example of an honest and generally reliable witness telling you how difficult it is to remember details and how we remember some things but not others. The same witness later said he knew he wiped Ms Lees’ knees, but he [page 174] could not remember whether he wiped the injuries on the elbows. When he was asked whether Vince Millar pulled the prime mover forward before doing a U-turn, Mr Adams said: This night, everything happened so fast, so quick, that is something that is not taken into consideration by myself or any other professional driver out there. Another example: Mr Millar said they went looking — sorry, that when they went looking, he got out of his truck to look at the pile of dirt on the road. Mr Adams said they stayed in the truck. These are just small examples of how honest witnesses remember events differently and remember some things, but not others. The other factor arising from the events out on the Stuart Highway that night that you might think is of particular significance in this case, is the sheer trauma of those events. Leaving aside questions of detail and leaving aside the issue of identification of the man in the fourwheel drive, if you accept the evidence of Ms Lees about the essential events of being pulled over and attacked, you might have little difficulty in concluding that Ms Lees underwent a terrifying ordeal. A pitch black night in the middle of the Australian outback, confronted by a man with a gun who she feared had just shot her boyfriend. Tied up tight. Afraid for her own life and of being raped. Escaping into the scrub. Hiding under a bush for hours. Speaking generally about the evidence of Ms Lees and not about any

aspect for the moment, if you accept that she was attacked in this way, you will need to consider whether the trauma of the experience has or might have affected the reliability of her observations and recall. Traumatic events can impress themselves upon a mind quite vividly, but there is also the potential for the trauma and distress to lead to inaccurate or incomplete observation or recall. You will need to consider carefully the impact of trauma and distress upon Ms Lees’ ability to take in and later recall details of the events that were occurring and of her surroundings. Ladies and gentlemen, you have been listening to talk for some time now, we will just take a short adjournment. We will just take a short break for about 10 minutes. Thank you. HIS HONOUR: Thank you, we will have the jury. Ladies and gentlemen, continuing with some observations about witnesses. There is a further matter relating to the evidence of prosecution witnesses, and only prosecution witnesses, to which I should draw your attention. It concerns previous statements made by the witnesses to the police and evidence given by witnesses in front of a magistrate during the preliminary examination or committal in this matter. On a number of occasions, your attention has been drawn to the previous statements or evidence by witnesses which were different from evidence given to you in this court. In particular, Ms Lees and Mr Hepi were asked on numerous occasions about statements to police or evidence given at the preliminary examination, on matters which were different from the evidence they gave to you. Counsel for the accused in his address has highlighted a number of those differences. Again speaking generally and not about any particular witness or difference, where differing versions have been given by a witness you will need to assess whether the differences cause you to doubt the reliability of the evidence given to you in this court. It is a question of whether it causes you to doubt the reliability of the evidence generally or on a particular topic.

[page 175] Minor differences in recall are to be expected, particularly so long after the events. But if the evidence of a witness to you is significantly different from what a witness has said on a previous occasion or occasions, you will need to consider very carefully whether such differences cause you to doubt the honesty of the witness or, even if the witness is honest, the reliability of the witness. In considering the impact of differences or inconsistencies, it is important that you have regard to the nature and extent of the differences and the particular matters about which the witness has given different versions. You will also need to give very careful consideration to any explanation for the differences. Is it just the effluxion of time? Do the differences relate only to minor details such as you might expect when a memory fades and changes, or do the differences relate to matters of significance? Are the differences the natural product of many repetitions indicating a witness of truth? Even if a witness is truthful, do the differences cause you to doubt reliability? In your consideration of the reliability of the witnesses and the impact of any differences, I invite you to bear in mind that witnesses are not robots programmed to respond in particular ways or programmed to remember word for word everything that has happened. If the computer of a robot is programmed with certain information, it can always be retrieved in precise terms word for word. Human beings are not like that. Human beings suffer from frailties of observation and recall. Unless something has been learnt, that is learnt by heart and by memory, you might think that the recall of most of us will vary from day to day. If today, a witness recounted events that occurred four years ago and then a few days later gave an identical version word for word, you might well be suspicious that what you were hearing is not a reflection of memory, but a recitation learnt by heart. So ladies and gentlemen, it is not just a matter of saying there are differences, therefore the recall is not reliable. It is a matter of assessing each difference in its context and considering the explanation for each

of those differences. I need to point out to you that, what a witness said on a previous occasion, is not the evidence of the witness before you unless the witness adopts what was said on the previous occasion. You heard some witnesses agree that what they said previously was more likely to be accurate because, for example, the statement to the police was made closer to the events. In those circumstances where the witness adopts what was said before as accurate, you can take what the witness said previously as their evidence to you. If however, the witness did not adopt what was said on a previous occasion as the correct version, then the evidence of the witness is what the witness said to you in court and not what was said previously. There was one witness who provided a very good example of a prior statement which he said was not accurate. That was the school teacher and artist, Mr Stagg. You will recall that he gave a statement to the police and also evidence in the preliminary examination, in which he said he was told by Ms Lees that while she was in the rear of the vehicle she moved her hands from behind her, under her bottom and legs to a position in front of her body. That was Mr Stagg’s statement to the police and evidence at the preliminary examination. However, he told you that on reflection he thought he had become confused and made an error. He was cross-examined at some length and it was put to him that his original statement and evidence were correct. However, Mr Stagg did not agree that they were correct and maintained that he had a doubt and thought that he was in error. In those circumstances, ladies and gentlemen, you may use the previous statement and evidence of Mr Stagg as statement and evidence inconsistent with what he has told you, and therefore as relevant to his credit and reliability. However, as Mr Stagg did [page 176] not agree that his previous statement and evidence were correct, you cannot use those earlier versions as evidence that Ms Lees said to Mr

Stagg, that while in the rear of the four-wheel drive, she got her hands from the back to the front. Ladies and gentlemen, I have been speaking generally about matters which might affect your assessment of the evidence. I have also spoken generally about matters that you should take into account in assessing the reliability of the evidence. There is no mystery about these matters, they are matters of commonsense. 4.2

The Chief Justice deals with the drawing of inferences from the evidence, as a prelude to instructing the jury about circumstantial evidence.

HIS HONOUR: In all of this, I urge you not to be afraid to draw inferences from the evidence which appealed to you and to your commonsense. The drawing of inferences from evidence is a very natural process and one which we follow every day of our lives without thinking about it. If you see a child with grazed and bloody knees who is limping and crying, the evidence before you is what you see and hear of the child. However, without hearing a word from the child, from what you see you will draw the inference that the child is in pain and has sore knees. You do so quite subconsciously, without thinking, I am drawing an inference. In the criminal court, you are asked to follow exactly the same process, that is, to look at the evidence and draw inferences from the evidence that you find to be convincing. The drawing of inferences, ladies and gentlemen, is different from speculation not based on the evidence. As I said to you at the outset of the trial, no doubt a case like this, by its very nature and through the extensive publicity that it has caused, and will continue to cause, people here and elsewhere have and will speculate about what has happened and they will, and have in the past, produced their own theories. There is a bit of a novelist and detective in most of us, and in a case like this, particularly when sitting around having a few drinks, it is easy to imagine and theorise about all sorts of things. You can hear it, can’t you, ‘I reckon what really happened’, and on it goes.

Ladies and gentlemen, it is vitally important that you draw inferences that arise from the evidence and not inferences based on speculation. It is vitally important that you avoid drawing inferences adverse to the accused that are based only on speculation and which have no foundation in the evidence. What you are required to do is to take the evidence before you, that is, the evidence that you accept, and draw inferences from that evidence that appeal to you and your commonsense and that you find to be convincing. And in the context of speculation, I want to add this. When this trial has finished and you have given your verdicts, no doubt speculation and theorising will continue. Please do not be concerned about what might or might not be said in the future. You are the only ones who have listened to every word of the evidence and examined every exhibit. You are the only ones who have listened to and examined the evidence knowing that you have to make a decision as to whether the Crown has proven guilt or not. When you are put in that position, your consideration of the evidence is far more concentrated than others and you come to the evidence with a different perspective from others. So, do not be concerned about what might or might not be said in the future about this case or your verdicts. Your sole concern is the assessment of the evidence and a determination as to whether the Crown has proven guilt or not. [page 177]

4.3

In the next section, his Honour deals with the standard and burden of proof.

HIS HONOUR: The next matter I want to discuss with you concerns the central feature of our system of criminal justice, which I mentioned to you at the outset of the trial. It relates to the presumption of innocence and the burden of proof that rests upon the Crown. As with all persons charged with crimes in the criminal court, the

accused comes into this court with a presumption of innocence in his favour. The law regards the accused as innocent until his guilt has been proven to the satisfaction of you, the jury. The burden of proving the charge lies wholly on the Crown. The accused does not have to prove anything. It is not for the accused to prove that Peter Falconio was not murdered or, if Peter Falconio was murdered, that the accused did not murder him. It is the Crown that must prove that Mr Falconio was murdered and that the accused murdered him. Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or to show that the accused is probably guilty. The accused is not to be convicted unless his guilt has been proved beyond reasonable doubt. You will bear in mind that this is a practical court of law and decisions must be made in a reasonable and sensible way. But if at the end of the day, you are left with a reasonable doubt about the guilt of the accused, then you must give him the benefit of that doubt and find him not guilty. To put it another way, if there is a reasonable possibility that the accused is not guilty, the Crown will have failed to prove its case beyond reasonable doubt and you must acquit the accused. If in what I have already said and in what I am about to say, I speak of matters being proved or being established to your satisfaction or of you being satisfied or accepting evidence, or if I use any similar expression, you will understand that I will always mean proof or satisfaction or accepting beyond reasonable doubt. Please also remember that when discussing a defence or an explanation or possibility put forward by the accused, it is not always easy to avoid using expressions which might appear to convey the impression that the accused must prove such defence, explanation or possibility. Do not be misled by any inadequacy of expression by me. The accused does not have to prove such defence, explanation or possibility. The Crown must disprove it. Please also bear in mind that you really have a dual function. As you know, the accused is charged with the most serious of offences. He is

not to be convicted on doubtful or insufficient evidence. That is a duty that you owe to the accused and to the community at large. It must be said the community at large has a vital interest in accused persons not being convicted unless guilt has been proven. On the other side, you also have a duty to the wider community that if the accused has been proven guilty, you must say so. The criminal law exists for the protection of the public. If you, the jury, are satisfied that the accused is guilty, you must return the verdict accordingly of guilty. To do otherwise, of course, would amount to a failure on a part of the criminal law to protect the community. [page 178]

4.4

The Chief Justice instructs the jury on what circumstantial evidence is and how it may be used to draw conclusions or inferences in circumstances where there is no body and no eyewitness to say that he or she saw either Falconio’s dead body or that he was shot by someone. The point is made that a piece of evidence is not to be ignored merely because no inference can be drawn from it standing by itself. It must be considered in the light of the whole of the evidence. Note also the instruction that is given that before drawing an inference of guilt from circumstantial evidence, the Crown must prove beyond reasonable doubt that there is no reasonable hypothesis consistent with innocence arising from the evidence.

HIS HONOUR: Now, ladies and gentlemen, having spoken to you about inferences and about the burden of proof, I need to discuss with you the nature of the Crown case against the accused. As counsel have reminded you, there is no direct eyewitness to the actual killing of Mr Falconio. The prosecution case is based upon what is known as circumstantial evidence. Now, I must confess ladies and gentlemen I do not watch legal shows on television. But I do have a memory long enough, which

probably goes back to past the memories of any of you on the jury — of a show that was called Perry Mason. So I see some of you do recall it. And whenever Perry Mason wanted to object to evidence and say it was inadequate, ‘I object, it is circumstantial’, and there was this, if you like, impression that because it was circumstantial, therefore the evidence was of no weight whatsoever. Ladies and gentlemen, there are no preconceptions in this court about either direct or circumstantial evidence. Direct evidence is evidence of a person who witnessed the actual offence. In a case of murder, direct evidence would come from a person who saw the act of killing. As close as she was on the Crown case, Ms Lees did not see the act of killing. Circumstantial evidence is to be distinguished from direct evidence. As its name suggests, circumstantial evidence is evidence of circumstances surrounding the offences charged, from which the prosecution asks you to infer beyond reasonable doubt, that Peter Falconio was murdered and that the accused committed that crime of murder. Now to come back to the point I was making when I mentioned Perry Mason. I emphasise there is nothing inherent in the quality of either direct or circumstantial evidence which makes such evidence necessarily good, bad or indifferent. Like direct evidence, circumstantial evidence can be good, bad or indifferent. It all depends upon the case and the nature of the evidence. In saying that, the Crown case is based upon circumstantial evidence, all that is meant, is that instead of having a witness who saw and is able to describe the actual events constituting the crimes, we have instead witnesses who describe a multitude of acts, events, circumstances and statements from which you are asked to work out what happened. Perhaps it is a reasonable observation that, speaking generally, crimes are not usually committed in front of witnesses or disguises are used and, therefore, it becomes almost inevitable that a great deal of evidence that is received in this court and considered by juries like you is circumstantial evidence. The amount of evidence that will be sufficient to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances can vary enormously and

so can the weight of the individual circumstances. Importantly, the process of reasoning remains the same. First you must [page 179] decide what facts you accept are established by the evidence. Then you consider what inference or inferences you are prepared to draw from those proven facts. When deciding whether you accept that a particular fact has been established, you are entitled to take into account the whole of the evidence. Having decided as I said, having decided what facts have been proven, then you consider what inference you are prepared to draw from those proven facts. When you are considering what inference you are prepared to draw from proven facts, you do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone. Let me give you an example completely removed from this case. Suppose you see a bus stationary at a bus stop and some distance away you see a man running along the footpath in the direction of the bus stop. At that point, the proven facts are that the bus is stationary and the man is running in the direction of the bus. Now, when the man is some distance from the bus, from those facts it might occur to you as a matter of inference that the man might be running for the bus. However, at that point you would not be prepared to draw that inference beyond reasonable doubt because other reasonable possibilities exist. The man might simply be running late for an appointment or for some other reason might have caused the man to run. It might just be a coincidence that the bus is at the stop. What if you keep watching? You can add in some more proven facts. The man gets closer to the bus, he waves his hand and you can hear him calling out but you cannot hear what he is saying. From these proven facts, you might now be prepared to draw the inference that the man is running for the bus. It would be a question for you whether you

were prepared to exclude other possibilities. Finally, you keep watching and you can add in some more facts. The extra facts are that the bus pulls away just as the man reaches the bus stop and he stomps his feet and reacts angrily. Well, now when you have put all the facts together, you might well be satisfied that you can exclude any other possibility and find beyond reasonable doubt that the man was running for the bus.1 Examples of the circumstantial evidence that you have before you include the accused’s Toyota and, to take another one, a hair tie. If you are satisfied that in the early hours of 15 July 2001, the accused drove into the Shell Truck Stop in Alice Springs, that is a piece of circumstantial evidence, but that fact alone would not, and I stress ‘alone’, would not be sufficient to enable to draw the inference that it was the accused who attacked Ms Lees. I emphasise if you are considering that fact alone. All that can be said from that fact alone is that as the accused was in Alice Springs at that time, he could have been in Barrow Creek some hours earlier. So, ladies and gentlemen, although you cannot draw an inference of guilt from that fact alone, if you find that fact proven, you keep it in mind and you eventually consider it in conjunction with the other facts that you find are proven. [page 180] At the end of the day, you must have regard to the totality of the circumstances, that is, the totality of the facts that you find to be proved. And you must have regard to the united force of all the proven facts put together. In other words, you assess the combined effect of the proven facts and consider whether as a matter of inference they prove beyond reasonable doubt that Peter Falconio was murdered and that the accused murdered him. Finally, on the question of circumstantial evidence and the proven facts along the way, when you are considering this evidence you must have regard to the possibility that a piece of circumstantial evidence or a proven fact might not necessarily point to guilt. Similarly, when you

put all the pieces of circumstantial evidence together, that is when you put all the proven facts together, you should also consider whether it is reasonably possible that the combined force of the circumstantial evidence does not point to guilt. You cannot return a verdict of guilty based on circumstantial evidence, unless the proven circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence charged. Before you can be satisfied that the accused is guilty, you must be satisfied not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances you find proved enable you to draw. Ladies and gentlemen, I will call a halt there. Can I say to you that there is a lot of evidence in this case. I will not be canvassing all of it, but it is part of my duty to remind you of a substantial amount of the evidence. So this will take some time and I ask you to exercise patience and to give careful consideration to it. There is a real possibility, bearing in mind that we are only sitting half a day on Friday, and that you will not be sent out to consider your verdicts until Wednesday. I cannot be more precise than perhaps Tuesday afternoon, probably more likely Wednesday. I would not want to send you out very late in the day, and it is important that we have breaks regularly to enable you help with your concentration. So just plan your next week on that basis if you would. Thank you, we will now adjourn until 10.00 am on Friday, thank you. Thank you the accused can leave. Would you adjourn please until 10.00 am on Friday. HIS HONOUR: Thank you, could we have the jury. 4.5

In the next section, his Honour explains the law which must be applied by the jury in deciding whether or not the Crown has proven the charges against Murdoch. His Honour explains what the elements of each of the offences are and that each of the elements must be proved beyond reasonable doubt before a verdict of guilty can be reached. His Honour has prepared written instructions on

what these elements are, which are handed out to the jury. This is what he means when he refers to an aide-memoire. HIS HONOUR: Ladies and gentlemen, having discussed some features of the witnesses and circumstantial evidence with you, I now turn to the crimes that are charged on the indictment. Each of the crimes is made up of elements or ingredients and in order to prove the guilt of the accused, the Crown must prove each of those elements or ingredients. Motive is not an element; the Crown is not required to prove a motive. [page 181] In this matter, you may find that the law does not cause you any difficulty. At the end of the day, you might think this case comes down to whether you accept the evidence of Ms Lees beyond reasonable doubt that she and Peter Falconio were attacked and that it was the accused who attacked them. When I say ‘whether you accept Ms Lees’ evidence’, I mean whether, having regard to all of the evidence in the case, you accept her evidence. Obviously, you do not consider just Ms Lees’ evidence alone; you consider all of the evidence. First, the crime of murder. The accused will have committed murder if, by an intentional act, he unlawfully killed Peter Falconio and if, at the time of that unlawful act of killing, he intended to cause the death of Mr Falconio or to do him grievous harm. Let me break that definition down for you into four essential elements, each of which the Crown must prove in order to prove guilt and I have for you an aide-memoire to assist. Could we hand out the aide-memoire for murder please? Ladies and gentlemen, you can see the four elements are set out. First, the Crown must prove that the accused killed Peter Falconio. That is that the accused did an act which caused the death of Mr Falconio. It is of course the Crown case that the accused shot Mr Falconio and,

as you know, Mr Algie has raised the question as to whether you can be satisfied, in the absence of a body, that Mr Falconio was in fact shot and killed. Obviously, if you have a reasonable doubt about that, then there cannot be any question and the accused would have to be acquitted. So the first thing is that the accused did an act which caused the death of Mr Falconio. Secondly, the Crown must prove that the act, by which the accused killed Mr Falconio, was an intentional act, that is, that it was a deliberate act as opposed to an accident. Thirdly, the Crown must prove that the act of killing was unlawful. By unlawful, I mean that the Crown must prove that the killing was without justification. Sometimes a deliberate killing is justified, for example, in self-defence. But there is no suggestion in the evidence or submissions of any issue of justification. Fourthly, the Crown must prove that, at the time the accused did the act which killed Mr Falconio, the accused intended either to kill him or cause him grievous harm. Grievous harm means any physical injury of such a nature as to endanger or be likely to endanger life or cause or be likely to cause permanent injury to health. Ladies and gentlemen, I suggested earlier the law with respect to murder should not cause you any difficulty. In substance you might think this is a case about whether the Crown has proved, first, that Mr Falconio was killed and, second, that the accused killed him. It is a matter for you, but you might think that if you accept the essence of the Crown case that the accused pulled Mr Falconio and Ms Lees over and if you accept the essential events occurred as described by Ms Lees, that the Crown will have proved that Mr Falconio was killed and that the accused killed him in circumstances that amount to murder. That is, if you accept that evidence to which I just referred. The second charge is one of deprivation of liberty, that is, that the accused deprived Ms Lees of her personal liberty. In order to prove this offence, the Crown must prove that by an intentional act the accused deprived Ms Lees of her personal liberty against her will. Again, I have an aide-memoire to assist you.

So you might think this is fairly straight forward. There are two elements to be proved. First, that by an intentional act the accused deprived Ms Lees of her personal liberty and, secondly, that when the accused deprived Ms Lees of her personal liberty it was against her will. [page 182] Again, you might think the legal elements will not cause you any difficulty. If you accept the evidence of Ms Lees, she was deprived of her personal liberty and she was deprived of that liberty against her will when, under the threat of the gun, she was tied up and then put into the accused’s vehicle. If you accept her evidence about that and if you accept that it was the accused who was involved, you would have little difficulty in finding that the Crown has proved its case on this charge. The third offence is one of unlawful assault. You will see that count 3 also charges that the assault involved a number of circumstances of aggravation. For the moment, I will leave aside the circumstances of aggravation and concentrate on the charge that the accused unlawfully assaulted Ms Lees. For your purposes, the offence is committed by the intentional and unlawful, direct or indirect application of force to the person of Ms Lees. And again, I hand out an aide-memoire for your assistance. There are three elements to be proved. First, that the accused, directly or indirectly, applied force to the person of Ms Lees. Secondly, that the application of the force was intentional. Third, that the application was unlawful, that is without justification. If you accept the evidence of Ms Lees, that without her consent, the accused tied her up and did the other things with her and to her that she described, then the Crown would have proved its case. As to the circumstances of aggravation, if you find the accused not guilty of the charge of assault then you will not be required to consider the circumstances of aggravation. It is only if you find the accused guilty of the assault that you will then be asked to consider whether the

Crown has proved any or all of the circumstances of aggravation. If you find the accused guilty of the assault, you will then be asked to return a verdict as to each of the circumstances of aggravation set out in the indictment under count 3 and which are identified in the aidememoire. First, that the assault caused Ms Lees to suffer bodily harm. Bodily harm simply means any physical injury that interferes with health. If you accept the evidence that as a result of Mr Murdoch applying force to Ms Lees, she suffered the abrasions to her knees and elbows, and if you are satisfied that those abrasions or any of them amounted to physical injury that interfered with Ms Lees’ health, this circumstance of aggravation would be proved. You will note, ladies and gentlemen, in para 1 related to this circumstance of aggravation that the question is whether the Crown has proved that the assault caused Ms Lees to suffer bodily harm. Now that is a question of causation. It does not mean necessarily that it is limited to, for example, somebody punching another person and causing a black eye. It is a question of whether there is a sufficient connection and that is a matter for you to decide. That is, connection between the assault and the bodily harm. You know of course from Ms Lees’ evidence that she does — if you accept that evidence that she does not have a memory of how she came to go out of the Kombi Van onto the ground. If you are of the view that the abrasions were caused when she landed on the ground, then the question would be, ‘Are you satisfied that an assault by the accused caused Ms Lees to, in effect, fall out of the vehicle and land on her knees or elbows and suffer the harm’. So, I am talking about a connection between what the accused did and the harm that was suffered by Ms Lees. It would be sufficient if something the accused did in the course of the assault, be it a push, or even if Ms Lees was jumping out of the vehicle trying to get away — though she has no memory of doing that. But even if it was that sort of thing there would

[page 183] be a sufficient connection between the assault and the harm for these purposes. So it is a matter for you whether the Crown has established first the assault, second the connection between the assault and the harm. The second circumstance of aggravation is whether the Crown has proved that Ms Lees is a female and Mr Murdoch is a male. Obviously, there is no difficulty about that. The third circumstance of aggravation charged is that Ms Lees was threatened with an offensive weapon, namely a gun. If you accept the evidence of Ms Lees, that about the time the accused applied force to her, she was threatened with the gun, the third circumstance of aggravation will have been proved. So, these circumstances of aggravation arise only if you find the accused guilty of the assault. If you do, then you will be asked to return separate verdicts on each of the circumstances of aggravation. 4.6

In the next section of his address, the Chief Justice isolates the principal overall issues in the case, namely, whether Falconio is missing, whether he is missing because he is dead, and whether the accused is responsible for his death, and provides an overall short summary of the principal contentions of the parties.

HIS HONOUR: Ladies and gentlemen, that brings me to the evidence. You will be pleased to know I do not intend to canvass all of the evidence, but it will be necessary for me to spend some considerable time with you on the evidence. You have heard two very helpful addresses which have each emphasised particular aspects of the evidence. In an effort to assist you, I will try to identify what I suggest you might find are the critical issues and canvass some of the evidence bearing on those issues. As I said, however, you should have regard to all of the evidence. The fact that I, or counsel, have not mentioned some part of the evidence does not mean it is not important. What

matters is your view of the evidence. Ladies and gentlemen, how you approach the evidence is a matter for you, but in whatever approach you adopt you may find it helpful to have in mind the overall issues that have emerged from the evidence and the addresses of counsel. Obviously there are many issues which have arisen out of the evidence, but what are the larger overall issues that have emerged? Well, you might think they are first, whether you are satisfied that Peter Falconio disappeared in the circumstances described by Ms Lees. Second, if you were satisfied that he disappeared in those circumstances, whether you are satisfied that those circumstances indicate not just foul play, but prove that Mr Falconio was murdered. Third, whether you are satisfied that the accused committed the murder, that is, the issue of identification of the offender. Still, standing back from the many individual issues and taking a broad overview of the cases for the Crown and accused, on the Crown case here was a young couple enjoying a working holiday who were deceived into stopping at night, on a lonely stretch of highway and who were attacked by the man who stopped them, the accused. It is the Crown case that the couple in the petrol station at Bourke are well meaning, but plainly wrong, and that you should have no doubt that Mr Falconio met with foul play. Mister Wild put to you that Ms Lees had more than ample opportunity to see the face of the offender close up and that you should have no doubt that she has correctly identified the accused as the offender. He suggested that any variation in Ms Lees’ evidence, compared [page 184] with her statements, is perfectly understandable in the circumstances. He reminded you of the trauma of the events, coupled with what he suggested was enormous stress and pressure after the events. Many hours and many pages of interviews without sleep. Mister Wild put to you that in addition to the evidence of Ms Lees there is a large body of

circumstantial evidence, including the DNA, which not only proves that Mr Falconio was murdered, but convincingly implicates the accused in that murder. On the other hand, on behalf of the accused Mr Algie put to you that there are features of Ms Lees’ evidence which should give you cause for concern and which create, at the least, a doubt about the reliability of her evidence as to the circumstances in which Peter Falconio disappeared. He suggested that people do create their own disappearance for no apparent reason and in the absence of Mr Falconio’s body you cannot be satisfied that he was killed that night. Mr Algie submitted that if Mr Falconio was murdered, the Crown has not proved that the accused committed that crime. He put to you that Ms Lees’ identification of the photograph, in the Internet article, cannot be relied upon because the article identified the accused as a suspect. Mr Algie suggests that the four-wheel drive described by Ms Lees was not the accused’s Landcruiser, or at least there is a doubt about that, and that the DNA evidence is unreliable because innocent causes and contamination are not excluded. He suggested the rest of the circumstantial evidence is inadequate and conflicting. So, ladies and gentlemen, that is a very broad overview of the issues presented to you which provide the context in which you are required to consider the evidence and determine what facts are proved. 4.7

Next, the Chief Justice deals with the evidence of Melissa Kendall and Robert Brown, who purported to identify Falconio at Bourke about a week After the events on the Stuart Highway. His Honour reminds the jury of the discrepancies in their evidence with the descriptions they each gave to the jury. These descriptions form the first touchstone of what is, and what is not, reliable evidence of identification. His Honour then reminds the jury of other circumstantial evidence which might suggest that these witnesses were wrong and that the only reasonable inference is that Falconio is dead. The point is made that the crucial link between the various pieces of evidence is Lees’ evidence, and that unless the essential facts which arose from her evidence are accepted there could be no

finding of how Falconio met with foul play and no finding of guilt. HIS HONOUR: In a moment I will begin my discussion of the evidence with consideration of what you know about Mr Falconio, Ms Lees and their relationship. First, however, I want to mention the evidence of Melissa Kendall and Robert Brown that they saw Peter Falconio alive in Bourke on 22 July 2001. Ladies and gentlemen, as you would undoubtedly appreciate, if it is reasonably possible that Peter Falconio was alive in Bourke on 22 July 2001, the Crown will have failed to prove that he was murdered and you would acquit the accused of all charges. On behalf of the accused, Mr Algie put to you that you cannot reject their evidence. He said they are honest people who are giving a truthful account. On the other hand, the Crown suggests that this couple is obviously mistaken. Your attention was drawn to a number of features of their evidence from which the Crown [page 185] ask you to find that their evidence is unreliable. In addition, the Crown put to you that the remainder of the evidence proved beyond reasonable doubt that Mr Falconio is dead. So, it is not just a matter of considering the evidence of Ms Kendall and Mr Brown in isolation. Their evidence must be considered against the rest of the evidence to which the Crown points as proving the death of Mr Falconio. For the moment, just dealing with the evidence of Ms Kendall and Mr Brown, Mr Wild drew your attention to a number of discrepancies between the evidence of Ms Kendall and that of Mr Brown about the appearance of the man and which of them served him. Ms Kendall thought the man had a shaved head with dark stubble. Mister Brown said the man was blonde or sandy of hair and of some length. Mister Wild reminded you that Ms Kendall thought that the man,

accompanying the man she believed was Peter Falconio, looked like the comfit of the offender. In addition, Mr Brown said the vehicle was identical to the drawing in the paper which was, of course, Mr Stagg’s drawing. Well, ladies and gentlemen, you will make what you will of their evidence. As always, it is a matter for you, but you might think that if Mr Falconio was alive one week after the events at Barrow Creek, bearing in mind that his family have not heard from him and all the other evidence including the blood on the road, the obvious conclusion would be that Mr Falconio faked his own death and sought to disappear. If that was his intention, given all the publicity and the appearance of his photographs in the newspaper, in your view, would he have been likely to appear in a service station at Bourke and openly converse with the proprietors? To consider another possibility of the type that might be used by a novelist, if Mr Falconio was suffering from amnesia and was moving across the country openly, you might have expected that either he would seek medical treatment or he would be seen and recognised by more than just two people at Bourke. Ms Rowe told you that all reported sightings were checked. Finally, ladies and gentlemen, as I said, the evidence of Ms Kendall and Mr Brown must be considered against the weight of the rest of the evidence and I am about to turn to that evidence. As I said earlier today, it is entirely for you how you approach the evidence. But I suggest that it might be helpful if you look at the events in the order in which they occurred. You may also find it of assistance if, as you go through the evidence, you keep a note of the facts that are not in dispute or facts that you find are clearly proved. Sometimes it is helpful to begin with clearly proved facts and work from there. I suggest that you will find it of great assistance when considering the evidence of a particular witness, to look to other evidence in the case to see if that other evidence supports or contradicts the witness. This is a very important part of the process of assessing the whole of the evidence and arriving at a decision based on all the evidence.

Let me begin my discussion with you by considering what you know of Peter Falconio, Ms Lees and their relationship. You heard from Mr Falconio’s father and brother about how Peter always maintained contact even when travelling overseas. Do you have any doubt that he came from a close-knit family? Are you satisfied that if Peter Falconio was alive and able to make contact with his family he would have done so? The Crown put to you that Peter Falconio would not put his family through the trauma they have and are experiencing. [page 186] In July 2001, Ms Lees and Mr Falconio were aged 27 and 28 years. They met in 1996 and had lived together since August 1997. Mister Falconio had graduated from university in 2000 and you have the photograph, exhibit P4, taken at the time of graduation. If you accept the evidence of Mr Falconio’s brother and Ms Lees, Mr Falconio had a good job and they had previously travelled abroad together. Ms Lees told you they planned to travel the world together and you heard how, before coming to Australia they had travelled to Nepal, Singapore, Malaysia, Thailand and Cambodia. The trip commenced in November 2000 and in January 2001 they arrived in Sydney. According to Ms Lees they made friends in Sydney. She overstepped the boundaries of friendship with a man in Sydney, after which they resumed their normal relationship. Ms Lees told you that Peter did not know of that relationship. Ms Lees said that they purchased the Kombi Van at the end of May and the Kombi was Peter’s pride and joy. On 25 June 2001, they left Sydney with a plan to travel via Canberra, Melbourne, Adelaide and Alice Springs through to Darwin. From there they were planning to go to Cairns and then back to Brisbane before flying to New Zealand. Mister Falconio wanted to go to New Guinea on an adventure trip, but Ms Lees did not want to join him, so she was planning a week in Sydney.

So to Alice Springs. You have the receipt from the caravan park, exhibit P34 and the evidence of Maureen Laracy that Peter Falconio met with her at about 10.00 am on 14 July to discuss his tax. You have also heard from Ms Whealans of a telephone conversation she had with Ms Lees at 11.28 am that day. Ladies and gentlemen, just pausing there in the events — I mean pausing in Alice Springs on that morning, the Crown put to you that Peter Falconio was a young man with everything to live for. Is there any evidence before you to suggest that Mr Falconio and Ms Lees were living other than normal lives of young people, working and living together and planning a future and that they were enjoying an extended working holiday together? Counsel for the accused has not suggested otherwise. If you are satisfied that this was a young couple enjoying a working holiday together and planning to continue to do so, then that is a fact that you keep in mind when you come to consider the following events and when you come to consider the suggestion that Peter Falconio did not meet with foul play and Ms Lees was not attacked in the manner described. You will keep that fact in mind, if you find it to be proved, in considering an implied suggestion that somehow Ms Lees was involved in the disappearance of Peter Falconio. So to the events north of Barrow Creek. You should take into account all the evidence, but I wish to concentrate upon the particular issues raised by counsel for your consideration and the evidence relating to those issues. Again taking an overview for a moment, do you accept the essential parts of Ms Lees’ evidence? When I speak of the essential parts, I am speaking of her evidence that she and Mr Falconio were pulled over by a man in a four-wheel drive, that while the man and Mr Falconio were at the rear of the Kombi, she heard a bang and she was then confronted by the man with a gun, following which she was tied up and later managed to escape. I am leaving aside all the details in between for the moment because it is this essential evidence which lies at the heart of the Crown case.

You might think that, if you accept this essential evidence, it points strongly to Peter Falconio meeting with foul play at the hands of the man from the four-wheel drive. While the rest of the Crown evidence such as the blood on the road and the fact that Mr Falconio has not been seen or heard of since 14 July would suggest that he has met with foul play, if you do not accept Ms Lees’ evidence about those essential [page 187] matters the Crown would not have proved how Mr Falconio met with foul play. The crucial link is Ms Lees. 4.8

In the section that follows, his Honour draws attention to other pieces of circumstantial evidence, and the jury is invited to consider whether or not they tend to support the essential account given by Lees.

HIS HONOUR: Whether you accept Ms Lees’ evidence about the essential features that they were pulled over and in effect attacked by a man with a gun is, of course, to be determined by a consideration of the whole of the evidence and not just the evidence of Ms Lees. You do not isolate her evidence from the rest of the evidence. For the moment, however, I will mention a few matters that you might care to consider when you are determining whether you accept the evidence of Ms Lees about these essential events. First, there is no dispute that Mr Falconio’s family last heard from him shortly before 14 July 2001. Similarly, there is no dispute that Mr Falconio was alive in Alice Springs on the morning of 14 July 2001. He saw the accountant. Next, if you accept the evidence of Ms Lees, she and Mr Falconio were together at Ti Tree when petrol was purchased at around 6.21 pm. Next, as I mentioned a moment ago, if you accept the evidence this young couple were enjoying their holiday and planning future trips like

any normal couple on a working holiday. Next, no one who knew Mr Falconio has heard from him since 14 July 2001. His passport has remained in the Kombi and his banking accounts have not been accessed. There is no suggestion in the evidence of a large insurance claim that might provide a motive to disappear.2 Next, knowing that no one who knew Peter Falconio has heard from him, if you accept the evidence of Ms Eckhoff and other witnesses blood containing DNA matching that of Peter Falconio was found on the edge of the bitumen surface north of Barrow Creek. If you accept the evidence of Ms Eckhoff, it is 3.8 quadrillion times more likely that the blood came from Peter Falconio than from an unrelated person selected at random from the population. You might recall the counsel for the accused accepted in his submissions that it was Peter Falconio’s blood on the road. Are you satisfied that it was Peter Falconio’s blood on the road? If you are, viewed in the light of all the other evidence, you might think that would be a very significant fact in determining whether Ms Lees has told you the truth about the essential events that night and in determining whether you are satisfied that Peter Falconio was murdered that night. Next, do you know any more about the bloodstain and when it might have got there? Obviously, you have the evidence of Ms Lees. Independently of the evidence of Ms Lees, you will recall the evidence of Mr Millar, the truck driver, who said that after Ms Lees got into their prime mover and they went searching for Mr Falconio, he saw a pyramid of dirt on the road. When he came back the next day with the police, he could see that the dirt had been on top of the bloodstain. [page 188] If you accept the evidence of Mr Millar, it will be open to you to conclude the bloodstain was on the road in the middle of the night and

somebody had gone to the trouble of covering it with dirt. Mister Algie suggested the existence of a pyramid of dirt was odd. You will make what you will of that suggestion. What other evidence from the scene might assist you? The Kombi Van. Independently of Ms Lees, you have the evidence of Mrs Brown and her husband, Jasper Haines, that on the night of 14 July 2001 they saw an orange Kombi Van stopped on the side of the road in the vicinity of the area of the bloodstain on the road. The Kombi lights were off and neither Mr Haines nor Mrs Brown saw anyone in the vicinity. They both saw a white four-wheel drive come onto the roadway as they approached the position of the Kombi Van. Mrs Brown thought that vehicle came onto the road before the Kombi Van — that is between them and the Kombi — and that would be north of the Kombi. But Mr Haines said it came from behind the Kombi and drove past them heading north quite slowly. Ladies and gentlemen, if as Ms Lees said the four-wheel drive,driven by the man, stopped behind the Kombi Van, regardless of the identity of the offender, if that offender had just killed Mr Falconio and Ms Lees had escaped and the offender became aware of lights of a car — that is the car of Mrs Brown and Mr Haines — approaching from the north, you might think it would not be surprising that the offender would drive away from the scene rather than risk his vehicle being seen stopped in the vicinity of the Kombi Van. That is a matter for you. The next you know of the Kombi Van is that it is found in the scrub. Somebody drove it off the road on a non-existent track and through the scrub to a point where you might be satisfied that whoever was driving it was trying to hide it. Next, if you accept the evidence of Sergeant McPhee and Officer Spilsbury, the lip balm lid was found under a tree the next day, about 60 m from the bloodstain. Both witnesses told you they also saw an area of flattened grass under the tree. You will appreciate I am leaving aside, for the moment, any question of the bits of tape and the tube of lip balm. Leaving aside those items, does the finding of the lid under the tree and the area of flattened grass tend to support the evidence of Ms Lees, that she hid under the tree and later, in an effort to get out of

the cuffs, used lip balm? As to the use of lip balm on the cuffs, you will also recall the evidence of the forensic scientist Ms Eckhoff, that an amount of lip gloss was permeated over the cable ties. Ms Eckhoff described a reddish pink substance with the consistency of lip gloss and a greasy feel. She said the cable ties smelt like strawberry. Doctor Thatcher examined the ties on 30 July 2001 and analysed the greasy material to compare it with the material found in the lid of the lip balm. He found no significant difference between the two substances and, similarly Ms Dianne Watson, a forensic scientist who has worked for 17 years in analytical chemistry. She examined the cable tie restraints under the microscope and saw the pink grease like substance both on the tape and on the ties. The restraints were also slightly dusty. On examination of the lip balm lid, she saw dirt and smudges on the lid and also a pink grease-like material on both the inner and outer surfaces of the lid. Again she analysed the substance from the cable tie restraints and from the lid and was unable to detect any significant chemical difference. So, ladies and gentlemen, leaving aside the controversy about the lip balm tube and the bits of tape, if you accept the evidence of Sergeant McPhee and Officer Spilsbury you have the lip balm lid under the bush, and the area of flattened grass, and a greasy substance like lip gloss on the cable tie restraints. Does that evidence in your view tend [page 189] to support Ms Lees when she says she hid under a bush and later used lip balm in an effort to get out of the cuffs? After Ti Tree, what is the next evidence independent of Ms Lees as to her movements? It comes from the truck drivers, Vince Millar and Rod Adams. If you accept their evidence, and counsel for the accused has not suggested that you should not accept their evidence, in the middle of the night bearing abrasions on her knees and elbows and scratches

on her legs and with her wrists tightly bound in cable tie handcuffs, Ms Lees jumped out onto the Stuart Highway in front of a road train. Mister Millar estimated that Ms Lees was only about 20 m in front of his road train when she jumped onto the bitumen. He also estimated that she jumped onto the bitumen far enough to be on the roadside of the white line that runs down the left-hand side of the bitumen. As you know, Mr Millar thought that Ms Lees was roughly two steps onto the road and so close that despite his swerve to the right she had been struck by one of the trailers. Ladies and gentlemen, the conduct of Ms Lees in jumping onto the Stuart Highway in the middle of the night, is a piece of circumstantial evidence and, like any other piece of circumstantial evidence, it is a matter for you what inference you are prepared to draw from it. Does that conduct by Ms Lees tell you anything about her state of mind? In other words, from her conduct when considered in conjunction with the rest of the evidence, such as the locality, the Kombi in the scrub, the blood on the road and Ms Lees’ hands being tied together, are you prepared to draw an inference beyond reasonable doubt about Ms Lees’ state of mind? As a piece of circumstantial evidence, does Ms Lees’ conduct tend to support her evidence that her boyfriend had disappeared and she had been attacked? In addition to Ms Lees’ conduct, you also have the evidence of Mr Millar and his co-driver Rod Adams about Ms Lees’ emotional state. In your view was that emotional state consistent or inconsistent with the events she has described to you? You also have the evidence of Mr Millar and Mr Adams about Ms Lees’ general appearance and condition. In the middle of the night on that lonely stretch of road, Ms Lees’ wrists were tightly bound in cable tie handcuffs to the extent that they left marks around her wrists. The tape — there was tape in Ms Lees’ hair and around her leg. There were abrasions on her knees and elbows and scratches on her legs. If you accept the evidence of Mr Millar and Mr Adams about these matters, what inference or inferences are you prepared to draw from those facts? The question is whether those facts tend to support Ms Lees about essential evidence about being pulled over and attacked.

Ladies and gentlemen, as I said at the outset, how you approach the evidence is a matter for you, but you can see how with circumstantial evidence it is a matter of taking the proven facts and putting them all together and then deciding what inferences, if any, you are prepared to draw from those proven facts. As I also said, I have selected some of the evidence about the events that night, which you might care to consider, as having a bearing upon whether you are satisfied about the essential features of Ms Lees’ evidence concerning the circumstances of Mr Falconio’s disappearance. I remind you, however, that it is not just the evidence I have been highlighting, but all the rest of the evidence which you should take into account in deciding this question. [page 190]

4.9

Next, his Honour deals with the points made by Mr Algie in his address, which he submitted suggested that there was a reasonable doubt about whether Falconio was dead, and whether that death was the result of a gunshot wound. The first issue is whether or not Lees and Falconio had stopped at Aileron. His Honour refers to the weaknesses in their evidence of identification.

HIS HONOUR: As you appreciate, it is the case for the accused that whatever happened on the highway north of Barrow Creek, he was not involved. In addition, counsel for the accused has questioned the reliability of the account by Ms Lees. As a consequence, he has suggested that you might have a doubt about the circumstances in which Mr Falconio disappeared. I will mention some of the topics addressed by Mr Algie, but I remind you of the need to take into account everything he has put to you. I will not be canvassing all the points he made on this issue. First, Aileron. Mr Algie reminded you of the evidence of the witnesses from Aileron, Ms Floyd, Mr Oatley and Mr Dick. He put to you if Ms

Lees and Mr Falconio were at Aileron between 3.00 and 4.30, that threw out the Crown case as to the time that Ms Lees and Mr Falconio left Alice Springs. Aileron, as you know, is 133 km north of Alice Springs and the Aileron Roadhouse is 1.5 km off the highway. Counsel said that if the couple were at Aileron, why would Ms Lees not tell you about it? It is one of the features that Mr Algie referred to as odd. Well, it is a matter for you what you make of the evidence of those witnesses. It was pointed out to you by the Crown, that from the evidence of Mr Oatley and Mr Dick they were viewing a male who had a foreign appearance and a noticeable foreign accent, perhaps Italian. Mr Oatley said the man did not speak English very well. I remind you that Mr Falconio’s brother described his own accent as Yorkshire and he said that Peter spoke in a similar manner. Mr Wild reminded you that Ms Floyd said the woman was wearing a long sleeved light blue top. That was the one thing she was sure about. Mr Oatley spoke of a blue or black summer dress. As you know, Ms Lees was not wearing either. There are three further factors of which Mr Wild reminded you. According to the witnesses, the couple at Aileron purchased postcards, including an Aileron postcard of which you have an example in exhibit P55. Could we have that on the screen please? So ladies and gentlemen, if that postcard was purchased at Aileron, the Crown says to you it would have been in the Kombi Van when the Kombi was searched and no such postcard was found. Secondly, there were two other Kombis on the track that day, says Mr Wild. The witnesses saw an orange Kombi Van. Could it raise the possibility of the witnesses jumping to a conclusion? Thirdly, Mr Wild put to you that there was no reason for Mr Falconio and Ms Lees to call at Aileron. If they did, Mr Wild suggested they would have purchased fuel, but they bought petrol a few kilometres further on at Ti Tree. So, ladies and gentlemen, it is a matter for you whether you think it is a reasonable possibility that they were there or whether you are

satisfied that the witnesses are wrong. [page 191]

4.10

The next matter dealt with is the absence of any evidence of a gunshot wound found at the scene and whether there is a reasonable explanation for the absence of this evidence. The mere finding of blood on the road does not necessarily mean that a gun was used, because the blood could have another explanation — a knife wound, for example. The way the Crown put its case, it was the absence of this evidence which gave rise to the possibility that the weapon used was a .22 calibre pistol. The absence of evidence is being used to draw an inference that a .22 calibre pistol was used, rather than positive evidence. The possibility of some other weapon being used was not explored by the Crown, probably because of Lees’ evidence that she heard a sound like a vehicle back-firing, which the Crown suggested was a gunshot, and also because Lees was assaulted with a small pistol. Nor was it explored by the defence; there was no forensic advantage to the defence to suggest the wound might have been caused by a knife, for example. The real significance of the pistol seen by Lees is that the Crown sought to prove that Murdoch had such a pistol in his possession, which linked him circumstantially to the crime.

HIS HONOUR: Mr Algie referred to the absence of blood on the Kombi Van and the absence of any trail of blood or blood spatter. Although he did not mention it in his address, you will recall he raised with the witnesses the absence of human tissue on the roadway where the large bloodstain is visible. He also, in this context, mentioned the absence of a projectile. Well, ladies and gentlemen, it is entirely a matter for you, but you might think this is one area where the assistance of specialised knowledge can be of considerable assistance to you. That assistance

came from the forensic pathologist practising in Victoria, Mr Woodford, and the forensic officer, Mr Wrobel. Doctor Woodford told you that if a person is shot in the head and immediately rendered unconscious, that person — ladies and gentlemen, you may have noticed, just pausing, the family, particularly Mrs Falconio, leaving the court from time to time. You might not think that very surprising. The evidence is distressing for someone in the position of Mrs Falconio and the rest of the family. But as I said to you at the outset of the trial and as I have repeated yesterday — sorry, the day before yesterday, you must put aside any emotions that you see in other people or that you may feel and decide these questions purely objectively and dispassionately and without being influenced by those emotions. I return to Dr Woodford. He told you that if a person was shot and immediately rendered unconscious, that person might make no sound at all or a groaning sound. There were other areas where, if shot, the person might not make any noise. Perhaps, you did not need an expert to tell you that, but it confirms from a medical point of view what you and I might assume was a matter of commonsense that if a person is wounded by a gunshot to certain areas of the body, the person might not be capable of making a sound. The other question concerns the likely consequences if a. 22 weapon was used and a. 22 bullet or projectile was fired into the head of Mr Falconio. First, whether the bullet would be likely to exit the skull. Secondly, whether from the entry wound or exit wound you would expect to find tissue, bone fragments and be found perhaps on the Kombi Van or on the ground in the vicinity. [page 192] Doctor Woodford assumed that a. 22 calibre projectile or bullet was involved at relatively low range. He told you that in his experience, and in the literature, most gunshot wounds to the head with a. 22 calibre projectile do not result in an exit wound. He said the .22 projectiles are

relatively low powered and, if anything, tend to ricochet around inside the skull. Another possibility is that the bullet enters the skull and then lodges in a thicker part of the skull such as the other end of the skull vault or the thick bone at the base of the skull. There are other areas where such a projectile could be brought to a halt by a bony structure. Mr Woodford observed what you might also think is a matter of commonsense that if a bullet did exit the skull it might continue off into the scrub and never be found. He added that the scalp skin is reasonably thick in most adults and can sometimes essentially seal the wound or obscure the wound, so that even if a bullet exited from the skull, it does not necessarily follow that there would be an extrusion of tissue from that area. If there was an extrusion, it might be deposited immediately around the exit wound or be caught on the clothing. Doctor Woodford also told you that sometimes blood can ooze from the wound or from the sinuses or the ear canals. Sometimes the bleeding can be minimal. Ladies and gentlemen, during cross-examination it was suggested, on more than one occasion, that if there was a gunshot wound to the head, the absence of any sign of brain or other tissue or bone fragments is unusual. Doctor Woodford did not agree. He said that a. 22 calibre entrance wound is often small and with entrance wounds, bone tends to be driven into the brain rather than tearing back through the scalp and exiting. He said he would not necessarily expect any brain matter to accompany the bleeding. He said for the reasons he had given in evidence he did not think it was unusual that there would be no sign of brain or other tissue or bone fragments. On the question of whether a. 22 projectile is likely to exit the skull, you also heard from Mr Wrobel, the forensic officer from Victoria, who has worked for over 20 years in this field. For a period in excess of 18 years he has examined hundreds, if not thousands, of gunshot scenes of which something in the order of 30 or 40% would have involved .22 calibre weapons. As a guesstimate, Mr Wrobel told you that something in the order of 20% of those would have involved wounds caused by discharge of weapons from point blank range to arm’s length distance. He thought there would have been hundreds of such cases.

Mr Wrobel said that over a period of 18 years where a. 22 projectile has entered a skull cavity from close range, including contact with the muzzle with the head, Mr Wrobel is unable to recall any cases where the projectile has exited the skull. Ladies and gentlemen, as with all evidence, it is a matter for you whether you accept or reject the evidence of Dr Woodford or Mr Wrobel or either of them or whether you have a doubt about it. You are entitled to bear in mind that their evidence is uncontradicted by any other evidence. If you accept their evidence, does it provide an explanation for the absence of blood and tissue in places that you might otherwise have expected to find blood if someone had been shot? Mr Algie also referred to the absence of gunshot residue on the steering wheel, gear knob and rear of the Kombi. It appears from Dr Thatcher, that the swabs from the rear of the Kombi were not tested for gunshot residue. I suggest you assume there is no such residue. Mr Algie put to you that you might think this is a little odd. Again, ladies and gentlemen, Mr Wrobel gave you some evidence concerning gunshot residue and the various factors which will influence, first, whether the residue finds its way onto a surface and, secondly, whether it stays on the surface or is removed. Mr Wrobel told you that while gunshot residue lands on the hands and clothing of the [page 193] person firing the weapon, activity by that person can result in a loss of that residue. The Crown put to you that whoever the offender was, after firing the weapon, the offender moved and was then involved in tying Ms Lees up and all the other activities described by her. On the Crown case, any gunshot residue would have been lost because of that activity meaning it is unlikely that there would be any left to be transferred to the gear stick knob or the steering wheel when the offender drove the Kombi into the scrub. In addition, those areas, that is the gear stick knob and the steering wheel, had been swabbed and that process

would have removed any residue that happened to find its way onto the wheel or the knob. And similarly, ladies and gentlemen, on the Crown case if any residue had landed onto the bumper bar of the Kombi, the Crown put to you that movements into the scrub and then carriage on the back of a tow truck to Alice would have removed any sign whatsoever. Under cross-examination, when it was put to Mr Wrobel that it would be unusual not to recover residue from the steering wheel, notwithstanding the activity involved, Mr Wrobel responded that in his view it was not unusual because the residue falls off reasonably easily. Ladies and gentlemen, we will take the morning break now for about 10 minutes. Thank you. HIS HONOUR: Thank you, could we have the jury please. Ladies and gentlemen, counsel for the accused also raised the question of odour and heat in connection with the evidence of Ms Lees; that she did not detect any odour or feel any heat. Mr Wrobel again gave you evidence about this matter. He said the odour that emanates when a. 22 revolver is fired is different from a gun powder smell. He was not able to describe a more similar common smell with which you might be familiar. He told you the smell is not as pungent as the smell of sulphur that emanates from gunpowder and the persistence of the smell will depend upon the conditions. In a firing range, without exhaust fans, the smell might persist perhaps for half a minute to a minute, but outside in a really windy area the smell may not be detected at all. Many factors will play a role. It is a matter for you, but you might think that some of the factors that will play a role in the circumstances with which you are concerned are first, that the weapon was fired in the open and, second, whoever fired the weapon then moved from the rear of the Kombi to the door of the Kombi. The weapon was held up and pointed through the closed window. Then the door was opened and the person entered the Kombi Van, pointing the weapon at Ms Lees and finally it was put to her head. That is the sequence of events described by Ms Lees. It is a matter for you whether you would expect any appreciable odour to remain by the

time the weapon was close to Ms Lees’ face or head. In addition, as to whether Ms Lees might detect the odour and remember detecting it, you should bear in mind the likely level of the odour by the time the gun was put to Ms Lees’ head and the circumstances in which she was confronted by the weapon. Even if some odour did remain, would you find it surprising that Ms Lees might not sense it or, if she sensed it, that she might not recall it given the circumstances in which the weapon was put to the side of her head? As to the question of heat, Mr Wrobel told you that the amount of heat depends upon the actual mass of the barrel, but generally speaking if a. 22 was fired through a 6 inch barrel the end of the muzzle would not be heated up very much, if at all. After looking [page 194] at the diagram of the revolver, Mr Wrobel expressed the view that any heat would be negligible. When it was put to him in cross-examination that given the circumstances of a firing at the rear of the van, the offender walking to the front, producing the gun and getting into the van, it would be unusual for the barrel not to produce appreciable heat, Mr Wrobel answered, ‘I would say no’. 4.11

His Honour then dealt with the absence of footprints at the scene consistent with having come from Ms Lees, and whether this factor was a matter giving rise to an inference that Lees’ account ought not to be believed.

HIS HONOUR: Another matter mentioned, was the question of footprints and a suggestion that perhaps you might expect to have found, or the police to have found, footprints of Ms Lees if she had run through the scrub. Well, ladies and gentlemen, you can see for yourself from the photographs the nature of the terrain and the coverage on the

ground. You also have the evidence of the various persons who were at the scene concerning the type of soil and where you can see that there are three prints with markers in exhibit P102. The plan is exhibit P127. Well, is it odd, as suggested by Mr Algie, that there were no prints apparently left by Ms Lees, or not surprising that a slender woman running across that terrain would not leave footprints? If you accept the positioning of the lip balm lid and the area of depressed grass, are you satisfied that Ms Lees got there without leaving any discernible footprints? 4.12

The next matters dealt with relate to a number of points made by Algie which he suggested threw doubt upon Lees’ account. His Honour deals with them first individually and then with whether in combination they amount to anything of substance.

HIS HONOUR: Ladies and gentlemen, counsel for the accused also addressed a number of points arising out of Ms Lees’ evidence about which he suggested you should have concern. He mentioned and he posed the question as to why Ms Lees would get into the driver’s seat when Mr Falconio went to the rear of the vehicle. He mentioned differences between Ms Lees’ evidence and her statements to the police concerning whether the man knelt on the seat and whether he put a knee in her back. Counsel suggested that surely Ms Lees would have glanced to the rear of the Kombi as she was being walked from the Kombi Van to the four-wheel drive. He put to you that Ms Lees’ evidence that she tried to grab the testicles of the man while she was lying on the ground, has an air of unreality. In essence, he was putting to you that there are features of Ms Lees’ behaviour, as she described it to you, should cause you to doubt the reliability of her evidence. Ladies and gentlemen, these are matters that are properly brought to your attention and you will give them such weight as you see fit. As you consider them, and as you consider whether they have any significance, you may also consider it appropriate to bear in mind that you are asked to make this assessment from the comfortable and calm

[page 195] surroundings of this court which are a far cry from the events on the Stuart Highway in the black of the night. In the circumstances described by Ms Lees — and this is if you accept her evidence as to the circumstances — it is a matter for you but you might think there are no standard or normal reactions to be expected of a person placed in that situation. Some people might react calmly, while others would react with high emotion and in what might later seem to be an irrational manner. The mere fact that someone reacts in an irrational or illogical manner in a moment of stress, does not necessarily mean that the event did not occur as described by the witness. Other people might react calmly and logically at one point, but overcome by the trauma and stress might resort to what appears to be illogical behaviour at another time. In making these remarks, I am not suggesting that you should not take into account the reactions and behaviours that you might expect of the individuals involved in determining whether their evidence is reliable. I am simply sounding a note of caution that you might think you should not begin your assessment by applying some mythical standard of what an ordinary person would do in those circumstances. It is a matter of assessing each individual and the circumstances in which the individual found themselves. This includes any trauma and emotions involved. Counsel for the Crown has reminded you of Ms Lees’ evidence about how she felt. As to the question of Ms Lees not glancing to see if Peter Falconio was at the rear of the Kombi, Mr Wild reminded you of the way, as he put it, Ms Lees was marched to the four-wheel drive, hand at the back of her neck and the accused behind and to her left. Mr Wild suggested that if Ms Lees wanted to embellish she could have easily have said she glanced and saw Mr Falconio’s body. One of the matters to which counsel for the accused referred was the absence of injuries to the front of Ms Lees’ body and the injuries to her elbows. Mr Algie suggested it was strange that there were no injuries to

the front of Ms Lees’ body and that her account as to how she received the injuries to her elbow could not be correct. Ms Lees said she was unable to recall precisely how she came to be on the ground. You do not know whether she first landed on her knees and/or her elbows and then fell onto the front of her body. Ms Lees told you that there are a number of bruises that were not initially obvious. As to the injuries to the elbows, you might care to consider whether they could have been caused in the initial fall from the Kombi or in a struggle on the ground. As Mr Algie put to you, if Ms Lees was lying on the front of her body with her hands cuffed behind her, it is obvious that she [could] not sustain any injuries to her elbows while lying face down. If she started to struggle and move from side to side, could she scrape her elbows on the gravel? Could she have caused damage to her elbows when she brought her hands from behind her underneath her bottom and past her feet? These are possibilities to which you might care to give consideration. Mr Algie referred to the statement of Mr Millar in which he said Ms Lees crawled under the trailer. Mr Millar told you he did not mean a crawl as in on hands and knees. He was adamant Ms Lees was not on her knees. She crab walked. Another matter to which Mr Algie referred was the behaviour of the dog. I will discuss the question of the dog in more detail with you later, but the Crown put to you that this was not a situation where a person was entering the vehicle in the absence of the dog’s master. It was a well-behaved dog in the presence of its master. As to the suggestion that the offender, whoever he was, would be likely to take his dog into the scrub and look for Ms Lees after she escaped, Mr Wild suggested to you that this was a brief search. In this context, you are entitled to have regard to [page 196] the circumstances that would have been facing the offender. On the

Crown case, the offender had just shot Peter Falconio on the edge of the Stuart Highway. He had not had time to do anything with the body because he immediately confronted Ms Lees with the gun. The next few minutes were taken up with tying Ms Lees up and putting her into the rear of the four-wheel drive. On the Crown case the offender was returning to the body and was being distracted by Ms Lees calling out. Then Ms Lees escaped. Whatever the offender was planning, at least part of it was not going to plan. Well, if the offender had a well-trained hunting dog, you might have expected the offender to make use of the dog in looking for Ms Lees, but on the Crown case the offender had a real problem because of the body of Peter Falconio. Time was of the essence. If the dog was not well-trained, there might be a risk of the dog wandering off into the bush and causing a delay. Again, ladies and gentlemen, these are simply matters for you to consider in the context of a suggestion that it is odd that the offender did not make use of the dog to look for Ms Lees. You were also referred by Mr Algie to the evidence of Mrs Brown and Mr Haines about the four-wheel drive that pulled onto the road as they approached. I have already mentioned this earlier, but the point made by Mr Algie is that if this was the offender heading north with the body of Peter Falconio in his vehicle, how did the Kombi get shifted? He posed the question: would the offender really come back? Mr Haines told you that after the four-wheel drive pulled out from behind the Kombi Van, it travelled to the north quite slowly. The Crown put to you that, panicking, as soon as the vehicle being driven by Mr Haines disappeared, the accused turned around and came back to do what he had to do: look for Ms Lees, clean up by putting dirt on the road and get rid of the Kombi Van. As Mr Wild put it, the accused was being meticulous or fastidious. Mr Algie also suggested there is no rational explanation for why an offender would not simply have left the body on the side of the road and shot through. He pointed out that the offender was not to know that Ms Lees would stay hidden in the scrub for some hours. Again,

ladies and gentlemen, it is a matter for you to make that assessment, but on the Crown case the accused in his meticulous way would want to dispose of the body and the evidence it might provide. In connection with disposal of the body, on the assumption that the offender is the person shown in the Truck Stop video, Mr Algie posed the question as to how much spare time the offender would have to get rid of the body. Well, ladies and gentlemen, you can do your own calculations. If you accept the docket P6, the petrol at Ti Tree was paid for a few seconds after 6.22 pm. Assuming a departure at about 6.30, it was 100 km to the point north of Barrow Creek where the events occurred. At 80 kph, that would take one and a quarter hours. On those figures the incident would have commenced at somewhere around 7.45 pm–8.00 pm. It is a matter then of making an assessment of how long the incident took, that is the incident as described by Ms Lees. On Ms Lees’ description, would it be reasonable to allow something in the order of 15 minutes before she escaped from the rear of the four-wheel drive? You might think that is a bit long, but perhaps a reasonable figure for the purposes of this assessment. If Ms Lees escaped somewhere around 8.00–8.15 pm, it would be open to you to conclude that the offender was gone by 8.30 pm. It is 292 km from that point north of Barrow Creek to Alice Springs. At 110 kph, that distance would be covered in 2.65 hours. That would leave up to approximately one and a half hours to dispose of the body. [page 197] And on the question of a body, Mr Algie put to you that if Mr Falconio’s body had been buried you would have expected the extensive and thorough search to have uncovered it. In response, Mr Wild reminded you of just how large and remote those areas of the Territory are. He suggested it would not be difficult to bury a body which could lie undiscovered for many years.

Ladies and gentlemen, I have not endeavoured to cover every point on this question that has been put to you by counsel. You should have regard to all of them. As counsel put it to you, these points should be considered not just individually, but in combination. Ultimately of course, in deciding whether you are satisfied that Peter Falconio was murdered by someone, you will have regard to all of the evidence and not just those matters mentioned by me or by counsel. 4.13

The Chief Justice next deals with Lees’ evidence relating to the identity of the attacker as being Murdoch. His Honour begins with a warning about the dangers of mistaken identifications and then with the identification evidence of Lees. He reminds the jury of the opportunity Lees had to get a look at her attacker and the circumstances of her subsequent identification of Murdoch through the photographs which she saw, and whether in those circumstances there was a real possibility of the displacement effect having a bearing on her identification. The warning part of the direction is a standard direction given in all cases such as this. Because of the fact that Lees had already seen the Internet photo a month before she made a positive ID from the photoboard, the Chief Justice very fairly suggests that the photoboard ID should be given little weight, even though there are significant differences between the two photos, and that in any event almost no weight could be given to the dock identifications. His Honour explained why, nevertheless, the dock identification was led into evidence.

HIS HONOUR: Ladies and gentlemen, that brings me to the question of identity. Both Ms Lees’ evidence and the circumstantial evidence upon which the Crown relies as pointing to the accused as the offender. In dealing with this evidence, I will assume that you accept the essential features of Ms Lees’ evidence that she and Mr Falconio were stopped on the highway and attacked. I will assume, in this part of my discussion, that you are satisfied that whoever attacked Ms Lees and Mr Falconio murdered Mr Falconio. First, I propose to deal with the positive identification by Ms Lees of

the accused, and for the moment, while dealing with Ms Lees’ evidence, I will leave aside any other circumstantial evidence that might bear upon the question of whether the Crown has proved it was the accused who attacked Ms Lees. I am directing these remarks to Ms Lees’ evidence identifying the accused considered in isolation from the rest of the evidence. When you come to consider the evidence of Ms Lees that she was able to identify the accused as the offender, obviously your view of the reliability of Ms Lees generally is part of your assessment of whether you accept the evidence of Ms Lees as to the identity. You will have formed your own views about her reliability generally and you will take those views into account deciding whether you accept her evidence of identification. [page 198] Ladies and gentlemen, it will be obvious to you that the identification by Ms Lees is evidence of particular importance that will require close attention by you. Independently of any other evidence in this case, if you accept the evidence of Ms Lees that it was the accused who pulled her and Mr Falconio over that night and was at the back of the Kombi with Mr Falconio when the bang occurred, and if you accept Ms Lees’ evidence that it was the accused who came to the window with the gun and put her through the subsequent events, the Crown will have proved that it was the accused and not some other man who is implicated. If you are satisfied from the evidence of Ms Lees, and other evidence, that Peter Falconio was murdered by the man who pulled them over and confronted Ms Lees with a gun, and if you accept the evidence of Ms Lees that the man was the accused, you might think the Crown will have proved its case. So it is very obvious that the evidence of Ms Lees identifying the accused is of particular importance. As to the identification of the accused by Ms Lees, I must give you a warning born out of the experience over many years in the criminal court. It is easy for honest witnesses to make a mistaken identification.

Experience in criminal courts has shown that miscarriages of justice have occurred as a result of mistaken identifications by honest witnesses. Mistakes can occur even though the witness is quite sure of the identification. A mistaken witness, who is sure of the identification, can be a convincing witness and therein lies considerable danger. Even when the person is previously known to the witness, mistakes can occur and the risk of error is much greater when the person is a stranger. Many factors may affect the ability to form and retain an accurate impression of a previously unknown person, including that unknown person’s physical appearance and features, dress or any other distinctive matters connected with that person. Factors include the lighting, the opportunity to see the person and record accurately in the mind the image of that person. The witness’s involvement in the incident and the trauma involved are obviously relevant factors, together with the frailty of human observation and memory and a tendency to reconstruct events in the mind over a period of time. So ladies and gentlemen, born out of the experience of the court to which I have referred, I give you a warning that you must examine very carefully the circumstances in which Ms Lees saw the man who attacked her and you should approach her evidence of identification of the accused with caution. You must also examine very carefully the circumstances in which Ms Lees made her identification. I will come to that in a moment. In giving you this warning, I am not commenting upon whether you should or should not accept the evidence of Ms Lees when she says she is able to identify the accused as the man who attacked her. Whether you accept her evidence or not is a matter entirely for you. What I am doing is drawing your attention to the experience of the courts about the need for particular care in your approach to evidence of identification because experience has shown that mistakes can occur. If having paid due heed to the warning I have given you and having carefully examined Ms Lees’ evidence, you are satisfied beyond reasonable doubt that her identification of the accused is accurate, then

you are entitled to act upon her evidence. I repeat, whether you accept her evidence or not is a matter entirely for you. In the context of Ms Lees’ identification, I draw your attention to a number of features from the evidence. What weight you give these matters is, as always, a matter for you. First, if you accept the evidence of Ms Lees, her observations of the man who attacked her occurred in circumstances of great trauma. You hardly need me to tell you that [page 199] traumatic events which give rise to high emotion and conflicting thoughts, such as those described to you by Ms Lees, have the potential to create confusion of observation and recall. On the other hand, traumatic events can also stimulate the attention and cause some matters to remain vivid in the mind long after the occasion in question. It is a matter for you to make your own assessment as to the impact of the trauma of the events on Ms Lees’ capacity to observe the features of the man who attacked her and on her capacity to remember and recall those features. Next, you know the events occurred at night. It was pitch black. If you accept the evidence of Ms Lees, when the other vehicle pulled up adjacent to the Kombi while they were travelling along the highway, the interior light was on in the other vehicle. From her position in the passenger seat and looking across the Kombi and past Mr Falconio and the dog, Ms Lees got a brief look at the driver. She told you the vehicle was not alongside them for very long. She said she made eye contact with the driver and could see from that position that the driver was wearing a black baseball cap with a badge or motif on the front and a long-sleeved shirt with a T-shirt underneath. In this position, she told you, the driver was a man who looked older and looked like a local. She could see he had a Mexican type moustache drooped down past the sides of his mouth.

Ladies and gentlemen, Ms Lees’ opportunity at that time when the vehicle pulled alongside to observe the man in the other vehicle, was obviously very brief and in difficult circumstances where he was illuminated only by the interior light. Ms Lees’ next observation of the man was after Peter Falconio went to the rear of the Kombi. She looked back partly through the door and partly through the window. She got the impression that the man was tall. She told you the man was taller than Peter, who was 5 foot 11 inches, which is just over 180 cm. As you know, the accused is approximately 196 centimetresm in height. Ms Lees said the man seemed to be hunched and stooping. She could see the same clothes and in addition heavy duty trousers. Well, again, you might think that this was a very limited opportunity through the door and the windows of the Kombi to view the man standing at the rear of the Kombi. Ms Lees’ next opportunity was when she saw the man at the window pointing the gun at her. The window was up and, according to Ms Lees, all she saw was the man’s face. Ms Lees told you the man stared at her. Cross-examined as to whether the man had his hat on, Ms Lees said she could not see at that point and added, ‘I just saw his face and a gun’. Ladies and gentlemen, what happened from that moment forward is, of course, not to be separated into little sections or compartments. It is one continuous series of events. It is a matter for you what you make of the totality of Ms Lees’ opportunities to see the face of the man during that series of events after the man appeared at the door pointing the gun at her. Ms Lees told you that when the man opened the door she did not see whether his cap was on or not because she was looking at his face. She said it did not mean he did not have a cap, but rather it means she did not register the cap because she was looking at the man’s face or the gun. Did Ms Lees, in your view, get a good look at the man’s face at that time? Do you accept her evidence that she was concentrating on the gun and the man’s face?

Ms Lees told you about the man getting into the Kombi Van and how, as he came through the driver’s door and into the van, he seemed to be all around her. He was always coming towards her, pushing her to the other side. There was considerable [page 200] cross-examination about whether the man was kneeling or not and you will make what you will of that. Ms Lees told you the man asked her to turn the Kombi off, but her hand was shaking too much. She backed away into the passenger seat and when the man asked her to put her head down and her hands behind her back, she put her feet on the shelf. It was then the man pointed the gun to her right temple and she did as instructed. Ms Lees told you that when the man pointed the gun at her temple, she could see his face close up. I remind you that Ms Lees told you how she was feeling as the events began to unfold in the Kombi Van and how she was feeling is obviously relevant to your consideration of what view she got, whether her view was reliable or could it have been distorted or confused. This was her evidence: I just kept thinking this isn’t happening to me. I can’t believe this is happening and I felt alone. I kept shouting for Peter. I thought I was going to die but mainly I just kept thinking I can’t believe this was happening. Well, what do you make of Ms Lees’ opportunity to see the man’s face as she backed into the passenger’s seat? As you know, after Ms Lees put her head down and her hands were tied behind her back, she did not see the face of the man again until, as she told you, she was pushed into the passenger side of the fourwheel drive. She said she was taken to the four-wheel drive by the man who had his hand at the base of her neck and was standing behind her

and slightly to her left. She was pushed into the passenger seat and she told you she was going backwards with her hands behind her back. Ms Lees said she was edging, moving towards the dog on the driver’s side door. She told you the man was there in front of her and she said the man was looking at her. She was looking at him. Asked later what she was doing when the man was looking at her and she was looking at him, Ms Lees said she was backing away towards the driver’s door. As to what she was looking at as she was backing away Ms Lees replied, ‘His face’. You might recall that I asked her to look at the clock and to see how long she was actually looking at the man’s face. Ms Lees looked at the clock and it was something in the order of 10 to 15 seconds. According to Ms Lees, the interior light was on in the four-wheel drive. As to how far apart their faces were, she said, ‘Very close, difficult to say, but he was coming up to my face and coming closer and closer, and I’m just leaning backwards, trying to distance myself from him’. And you might remember her demonstration of how she put her hand up in front of her face, and moved her hand toward her face and her face backwards as the demonstration of how the man was coming at her. She estimated by her demonstration that his face got to within a foot to 18 inches, or 30 cm–45 cm of her face. Well, ladies and gentlemen, what do you make of that opportunity for Ms Lees to see the face of the man who attacked her? Is it reasonably possible that as close as they were, the trauma and lighting distorted Ms Lees’ views or recollection of the image of the man? Or are you satisfied that this was an opportunity which, in the circumstances, gave Ms Lees a very good look at the face of the man for a reasonable period and which would have impressed the face upon her mind quite vividly? What was the combined effect of the two stages at which Ms Lees could see the man’s face, that is in the Kombi and in the four-wheel drive? Well, ladies and gentlemen, it is against the background of those opportunities and the circumstances in which Ms Lees saw the face of the man who attacked her that

[page 201] you come to consider the circumstances of Ms Lees’ identification of the photograph in the Internet article. Ms Lees told you that this took place in October 2002, which is some 15 months after the events. The article is exhibit P148. Could we have that on the screen please? This is a particularly important occasion because this is the first time that Ms Lees saw a photograph of the accused. As I discuss this evidence I [will] remind [you] of the points made by counsel. On behalf of the accused Mr Algie suggested that you should have a doubt about the reliability of the identification of the photograph on the Internet, because Ms Lees was aware from the article, that the photograph was of a man who was suspected of having committed the attack upon her and Mr Falconio. Just leave the front page on please? Thank you. Mr Algie reminded you that Ms Lees knew, from the article, that the police were saying that his man was linked by DNA and he suggested there is a risk that this engendered in Ms Lees, a belief that the person in the article, the accused, was the offender. Mr Algie put to you that Ms Lees has been shown in other areas to be susceptible to suggestion,3 and as she would have believed that this was the offender, there is a real risk that the image of the offender in her mind was displaced by the image of the accused in the photograph attached to the article. Mr Algie is correct that experience in the courts has shown that some people are suggestible and that this type of displacement effect can occur when a victim views a photograph of a person the victim is told by others is the offender. So this is a matter to which you must give careful consideration. In response to this suggestion, Mr Wild put to you that Ms Lees was not expecting to see a photograph of the suspect and that this was a reliable and spontaneous act of identification by a person into whose memory the image of her attacker had been firmly fixed. Ladies and gentlemen, in your consideration of Ms Lees’ evidence

you should bear in mind the content of the article that she saw. You can see for yourselves that when Ms Lees saw the article it would have been obvious that this was a photograph of a man who was regarded as a suspect and who was linked through DNA. That much of course appears on the front page of the article. Could we have the second page, please? As you can see from the article, there was a comment by police Assistant Commissioner, etc, and you can see the photograph that Ms Lees identified. Ladies and gentlemen, I need to remind you of the circumstances in which Ms Lees came to access that article. She was working in Sicily. She told you that she did not look at the article because of any information from the Northern Territory Police that a suspect had been identified. She looked at the particular website, about which she had been told, because she was looking for information about herself. This was her evidence about the reason why she looked at that website: The reason why I looked at the website at that time was because a friend had said, ‘The media are writing some positive things about you’ and the fact that I was in Sicily, away from the United Kingdom, I just wanted to know what I could expect when I returned to the United Kingdom. [page 202] Ms Lees told you that when she went to the website she did not expect to see a photograph of a suspect or of a man that might be the person who attacked her. She said the article indicated there was a suspect for the murder of Peter Falconio. On the second page was the photograph. Asked what she thought when she saw the picture, Ms Lees responded, ‘That — that’s the man’. Well, you have the article. Ms Lees was asked whether the photograph, when she saw it on the Internet, was of the same quality of the photo that appears in the copy you now have and in the course of

her answer Mr Lees spoke of her reaction to the photograph. I will read that question and answer to you. Was it of the same quality as the copy of the article that you have before you or otherwise? — I couldn’t tell you. I didn’t really study the photograph of the man. I just needed to have a look. I really don’t know, have to look at him or look at photographs of him, I just knew that it was him. Almost at the end of cross-examination it was put to Ms Lees that she was wrong when she looked at the Internet and formed the view that the picture was of the man at Barrow Creek. She gave this answer: I wasn’t looking for the man on the Internet, I didn’t — the picture just came up. I just glanced at it. I really — I recognised him as being my attacker. But the article at which you were looking on the Internet concerned a man who had been identified as a suspect for Barrow Creek, didn’t it? I can’t really remember what the article said now but at the end of the day, I know what happened. I don’t need to read it from the press. Did the article and the person being identified as a suspect influence you at all in your identification of that purpose? — No, I’d recognise him anywhere. Ladies and gentlemen, I pause there in the sequence of evidence given by Ms Lees about identification to mention a couple of matters for your consideration. First, what assessment do you make of the circumstances in which Ms Lees saw her attacker? Did she have a good opportunity to see his face or not? Are you satisfied that the circumstances were such as to leave a vivid impression upon her mind of the image of the attacker or is it possible that the circumstances created distortion or confusion? Second, what do you make of Ms Lees’ evidence that she would

recognise the man anywhere? Do you accept her evidence in that regard against the background of the events that occurred that night? Third, bearing in mind your answers to those two questions, is it a reasonable possibility that whatever image Ms Lees had in her mind, it was displaced by a combination of the circumstances of the article and the photo of the accused with the image of the accused? Was there the displacement effect, to which Mr Algie referred, or is it reasonably possible that such a displacement effect occurred, or are you satisfied that Ms Lees had a vivid and reliable image in her mind which she accurately recognised as soon as she saw the photograph and the article?4 [page 203] Ladies and gentlemen, I turn from that identification to the photoboard. As I have said the occasion of identification on the Internet photograph is the critical occasion. The next time Ms Lees saw a photograph of the accused it was only a month later in November 2002. You have a video tape of that occasion which is exhibit P47 and you have the page of the photographs that Ms Lees looked at which is exhibit P48.5 Perhaps could we have P48 on the screen please? As you know Ms Lees picked the accused and she told you that when she said, as shown on the video, ‘I think it’s number 10’, she was very positive. Ladies and gentlemen, as I said, this was only a month after Ms Lees had seen the photograph on the Internet and formed the belief that the person shown in that photograph was the offender. She was shown a photograph here on the photoboard of the same man, albeit that there are differences between the two photographs. In photograph 10, the accused has slightly longer hair and a full beard and moustache. The Internet photograph is taken at a slight angle to the accused’s face, showing more of the left-hand side of the face, while the photograph

on the board is straight on. As you can see, the photograph on the board is one of 12 of men with varying shapes of faces and full beards and moustaches. What weight you give the evidence of Ms Lees when she identified this photograph as the person who attacked her is a matter for you. However, as I have said, you must bear in mind this was only one month after Ms Lees had identified the photograph on the Internet. You will quickly appreciate that you cannot place too much weight on the identification of the photograph in the photoboard, because it is obviously a photograph of the same man whose photograph appeared on the Internet. In those circumstances, it is hardly surprising that Ms Lees would pick the photograph because you would still expect her to have in mind the image of the photograph she saw on the Internet. However, the identification of photograph 10 is a matter for you to bear in mind and to give such weight as you see fit. Finally, you have the two identifications of the accused sitting in the dock. The first occurred in May 2004, during the preliminary examination. The next occurred in front of you. Ladies and gentlemen, although Ms Lees previously identified photographs of the accused, it was appropriate for her to be asked whether she could see the offender in court, otherwise you might have found it quite odd that she was not asked. However, you will quickly appreciate that very little weight, if any, can be given to these identifications of the accused in the dock. Ms Lees had already seen and identified photographs of the accused on two occasions and, of course, she knew that when she came to court it would be same man sitting in the dock. So for these reasons, although it completes the picture for you by having Ms Lees look at the accused in the dock and be asked whether she recognises him, the two dock identifications are of that very limited value only. And so, as I said at the outset of addressing you concerning identification, you might think it is the occasion of the Internet identification that is the critical occasion for your consideration and I have reminded you about the opposing submissions concerning that identification.

Ladies and gentlemen, we will take another short break. HIS HONOUR: Thank you. [page 204]

4.14

In the following section, the Chief Justice deals with the circumstantial evidence which goes to the question of whether Murdoch was the driver of the vehicle which caused Falconio to pull over. In this section, his Honour is concerned with identification evidence of a circumstantial nature. The Chief Justice places the evidence into the following categories: evidence which establishes that Murdoch had the opportunity to be the driver; evidence of the sighting of a vehicle by Brown and Haines; the characteristics of the driver; a comparison between the accused’s vehicle and Lees’ initial description of the vehicle to the police; evidence concerning the dog; evidence concerning whether or not the accused had a silver revolver; the accused’s conduct; evidence connecting the accused to Lees, especially the DNA evidence on the T-shirt, cable ties, steering wheel and gear stick; and miscellaneous items such as the hair tie. At the start, the Chief Justice makes it clear that this is all based on the assumption that the broad outline of Lees’ account is accepted by the jury, because obviously if none of what she told the jury ever happened, the Crown would not have got very far. Second, he describes this evidence as independent from the evidence of Lees that

the accused was the attacker. Third, he deals with those items of the circumstantial evidence which the jury might find proved, or tended to prove, that Murdoch was not the attacker. HIS HONOUR: Ladies and gentlemen, I turn now to circumstantial evidence upon which the Crown relies independently of Ms Lees to establish that the accused was the driver of the four-wheel drive who pulled Ms Lees and Mr Falconio over that night. Again, this discussion proceeds on the assumption that you are satisfied that Ms Lees has told you the truth about the essential events of being pulled over and attacked. In this discussion, I will also endeavour to remind you of the points made by counsel for the accused that there are items of circumstantial evidence which tend to suggest the accused was not the offender. The items of circumstantial evidence that I intend to discuss with you can be put into the following categories. First, opportunity. This concerns evidence including the Truck Stop video as to whether the accused was in the vicinity or could have been in the vicinity of Barrow Creek at the time Ms Lees was attacked. Second, the vehicle at the scene observed by Ms Brown and Mr Haines to pull onto the roadway and how that vehicle compares with a vehicle being driven by the accused in July 2001. Third, the characteristics of the man driving the four-wheel drive. This is different from any positive evidence by Ms Lees identifying the accused. This involves a comparison between the physical characteristics of the man in the four-wheel drive as described by Ms Lees and the physical characteristics of the accused. Fourth, a comparison between the vehicle driven by the offender as described by Ms Lees and the accused’s vehicle as at 14 July 2001. [page 205] Fifth, the dog. This involves consideration of the evidence that Jack

used to accompany the accused on his trips and a comparison between Jack and the dog described by Ms Lees which she said was accompanying the man in the four-wheel drive. Sixth, according to Ms Lees the offender used a gun. This concerns evidence as to whether the accused was or could have been in possession of a weapon of that type. Next, the seventh category of evidence which I will discuss with you concerns the conduct of the accused. Is there anything in the conduct of the accused to suggest that he was involved at Barrow Creek? The eighth category, I have put under the heading of any evidence tending to connect the accused to Ms Lees or the Kombi Van. This relates to the DNA evidence in connection with Ms Lees’ T-shirt, Kombi van and the cable ties. Finally, I have labelled the last category miscellaneous which includes a matter such as the hair tie. Ladies and gentlemen, before I turn to each category I must give you a direction about the approach to the evidence of Mr James Hepi. I am giving you these directions now because Mr Hepi gives evidence relevant to a number of these categories of circumstantial evidence I am about to discuss. I have already made some general remarks about your approach to witnesses and those remarks apply to all witnesses, including Mr Hepi. However, there are special features associated with the evidence of Mr Hepi and with him, which require me to give you quite specific directions and warnings about how you must approach his evidence.6 As you listen to these directions and warnings, please understand that I am not commenting upon whether you should or should not accept the evidence of Mr Hepi, that is accept him generally or any part of his evidence. Whether you accept any or all of his evidence is entirely a matter for you. However, in your approach to his evidence you must apply the warnings that I am about to give you. There are a number of reasons associated with Mr Hepi, which make it dangerous to rely upon his evidence alone and which require that you approach his evidence with great caution and scrutinise it

particularly carefully before acting upon it. First, it is clear that Mr Hepi is not a person of integrity or good character. On his own evidence, he was involved in the transporting and selling of cannabis on a commercial scale. Next, you know that Mr Hepi was involved with the accused in that illegal enterprise and they fell out. Mr Hepi believes he has been ripped off by the accused in connection with cannabis and a large sum of money from the sale of cannabis. Mr Hepi also believes that the accused dobbed him in to the police about the cannabis in the gas bottle and that the accused was involved in stealing a large quantity of his property. Ladies and gentlemen, as a matter of commonsense you would recognise that this background could provide a strong motive for Mr Hepi to falsely implicate the accused in connection with the disappearance of Mr Falconio. In this instance, commonsense and the experience of the courts are one and the same. Experience in the criminal courts has shown that evidence of people in the position of Mr Hepi can be unreliable. [page 206] Such people often have their own interests to serve. They may wish out of malice to implicate falsely their former associates. People in Mr Hepi’s position may also seek to curry favour with the authorities in order to improve their own situation. This factor applies to Mr Hepi. He was arrested and charged with a very serious drug offence and was facing the prospect of going to jail. He recognised that he might be able to improve his position by giving authorities information implicating the accused in connection with the disappearance of Mr Falconio. He agreed with the proposition by Mr Algie, that he thought he had a get out of jail free card. Mr Hepi acknowledged that as a result of his assistance, that is that he was giving or was about to give the authorities, he managed to stay out of jail.

In addition, Mr Hepi intends to seek a reward should the accused be convicted. If Mr Hepi started out giving a false story, he would hardly be able to change it now. If he started with a false story, he would be committed to seeing it right through or something might be done about his sentence and he might lose the opportunity of claiming a reward. Ladies and gentlemen, for all these reasons I direct you that it would be dangerous to convict the accused upon the evidence of Mr Hepi or to rely upon his evidence unless, having paid due heed to my warning and having approached his evidence with great caution and given it particularly careful scrutiny, you are satisfied that the evidence you are considering is both truthful and reliable. In giving you this warning, I repeat what I said a few moments ago. I am not commenting on whether you should or should not accept the evidence of Mr Hepi on a particular matter or generally. I am giving you a warning, born out of the experience of the courts, that it would be dangerous to rely upon the evidence of Mr Hepi unless, having given full weight to the warning and having approached his evidence with great caution and given it particularly careful scrutiny, you are satisfied that his evidence on a particular matter is both truthful and reliable. I am concerned with your approach to his evidence, not with whether you should or should not accept it. These are really matters of commonsense and so is my next observation, that when you are considering the evidence of Mr Hepi about a particular matter, you should not consider his evidence in isolation from the balance of his evidence nor in isolation from other evidence. You should take into account whether or not in respect of other matters Mr Hepi has been truthful and reliable or whether you have a doubt about his evidence on other matters. If, for example, you find that Mr Hepi has been consistently truthful and reliable on various matters, that is, a fact you are entitled to take into account, in deciding whether you accept his evidence on a particular matter. On the other hand, if there is a possibility that Mr Hepi has been dishonest or unreliable on a particular matter or in respect of various matters, the possibility of that dishonesty or unreliability would also be relevant when you come to consider his honestly and reliability on other issues.

Importantly, ladies and gentlemen, when considering the evidence of Mr Hepi, you should have regard to other evidence that you accept and take into account whether other evidence supports or contradicts Mr Hepi. If, generally speaking, his evidence is supported by other evidence which you find to be convincing, that fact will be relevant to your assessment of his general honesty and reliability. If, on the other hand, generally speaking, other evidence contradicts him, that fact would also be significant in your assessment. And the same can be said when looking at his evidence on particular matters. Is it supported by other evidence that you find to be convincing or does the other evidence tend to contradict it? [page 207] Ladies and gentlemen, a moment ago I mentioned that Mr Hepi believed that the accused had dobbed him into the police. I remind you in this context of the evidence of Mr Kotz about a conversation with the accused concerning dobbing in. According to Mr Kotz, the conversation took place a couple of weeks after the registration of the re-built vehicle. That registration certificate is Exhibit P303 and was paid on 4 July 2002. According to Mr Kotz, the accused was pretty distraught and said he had done something wrong and that he had dobbed in his Kiwi mate. Mister Kotz understood this meant dobbing into the police and he knew who the accused was talking about. In cross-examination, it was put to Mr Kotz that rather than the accused saying he had dobbed his mate in, the accused said, ‘My Kiwi mate’s been dobbed in’. Mr. Kotz denied that suggestion. The accused denied that he said he had dobbed in his Kiwi mate. He described what he said in the following terms. I said to his mother who was sitting at the dining room table — Ben Kotz was sitting in the lounge room watching a video — and I said to Trudy, ‘Someone — Hepi, had been busted in Broome’. Obviously someone had dobbed him in and I was probably

going to get the blame for it. Ladies and gentlemen, do you accept the evidence of Mr Kotz? If you do, the accused admitted to him that he had dobbed in his Kiwi mate, which you might find little difficulty in being satisfied was a reference to Mr Hepi. If you are satisfied that the accused dobbed in Mr Hepi, that would be a factor for you to take into account in assessing the nature of the relationship that existed between Mr Hepi and the accused. That relationship is relevant to the question of a motive for Mr Hepi to falsely implicate the accused. It is also relevant to the accused’s attitude to Mr Hepi. 4.15

The Chief Justice discusses the subject of the accused’s opportunity to commit the crimes.

HIS HONOUR: I turn then from Mr Hepi to the first of the categories of circumstantial evidence that I identified a moment ago: opportunity. This concerns whether the accused possessed the opportunity to be at Barrow Creek at the time Ms Lees and Mr Falconio were pulled over. Obviously, when a person is charged with a crime, if it is unlikely that the person could have been at the scene of the crime at the time the crime was committed, that fact would be a piece of circumstantial evidence pointing in the direction of innocence. However, if the person charged could have been at the scene of the crime and could have committed it, while that opportunity alone cannot prove guilt, it is a piece of circumstantial evidence to be taken into account with all the other proven facts in deciding whether the evidence, in its entirety, proves guilt. As you know, the accused denies that he was anywhere near Barrow Creek at the time of the events. He says he was well on his way across the Tanami Desert. In addition, the accused said he could not have made it from Barrow Creek to Fitzroy Crossing or Broome in the time available. According to the accused, he was met with a little drizzle, a little bit of rain which was heavier in some spots, slippery road and

wash outs. [page 208] He said he always lets his tyres down and did so on this trip. According to the accused, he would have been travelling at only 50–65 kph, possibly up to 70. I might be wrong, and counsel will correct me if I am wrong, but on my memory none of the witnesses were asked about the accused letting his tyres down. The accused acknowledged during cross-examination that the speed at which the Tanami could be crossed depended on whether the driver was in a hurry and the type of vehicle being driven. Asked in examination whether he could have left Alice Springs at 1.00 in the morning and arrived at Halls Creek by 8.00 pm or thereabouts the following evening, the accused replied, ‘No’. Well, as you know, the accused gave evidence that he arrived at Fitzroy Crossing at about 8.00 pm and it may be that he had in mind Fitzroy Crossing when he gave the answer. 4.16

In discussing opportunity, the Chief Justice outlines the evidence which, if accepted, might show that Murdoch had time to have committed the crime and to have arrived at Broome on the following Monday morning at about 4 am. In the first part of this exercise, estimates are given of the time it would have taken to travel from the truck stop to Broome, assuming Murdoch left the truck stop at 1 am on Sunday morning and arrived in Broome at 4 am on Monday morning, which is a total of 28.5 hours.

HIS HONOUR: The Crown asks you to reject the accused’s evidence about the time that it would take to travel from Alice Springs to Fitzroy Crossing and on to Broome. In that context, I turn to the evidence about distances and road conditions which you might care to consider. This relates only to the question whether the Crown has proved

opportunity in the sense that the Crown has proved there was sufficient time for the accused to have committed the crimes at Barrow Creek and to travel from Barrow Creek to Alice Springs and on to Fitzroy Crossing between 6.00 and 9.00 pm Western Australian time and then to Broome arriving in Broome in the early hours of 16 July 2001. In this discussion, I will use the starting point of 1.00 am Saturday 15 July 2001. That is near enough to the time that the four-wheel drive left the Shell Truck Stop. As to the finishing time in Broome, I will use 4.00 am Western Australian time. Mr Hepi told you that the accused arrived in the early hours of the morning while he, Mr Hepi, was still in bed. He could not be more precise about the time. The accused said he arrived at about 4.00 am. In addition, in the list of phone calls, exhibit P295, there is a phone call recorded from the mobile phone used by the accused to the mobile phone of Mr Hepi. That call is recorded as having occurred at 27 seconds past 4.00 am on 16 July. You might think that fits with the evidence of both Mr Hepi and the accused that when the accused arrived in Broome he phoned Mr Hepi. I mentioned this was 4.00 am Western Australian time. You should bear in mind that Western Australia was one and a half hours behind Northern Territory time, so arriving at 4.00 am Western Australian time is the same as arriving at 5.30 am Northern Territory time. If my arithmetic is correct, you will be able to correct me and so will counsel if I have messed this up, leaving Alice Springs at 1.00 am on Sunday 15 July and arriving in Broome at 5.30 am Northern Territory time on Monday 16 July, is a total travelling time of 28 and a half hours. That time is to be compared with the evidence of Mr Hepi, who said the trip from Alice to Broome via the Tanami could be achieved in 20 hours [page 209] of constant driving. If Mr Hepi is right, it would not have been unduly difficult for the accused to leave Alice at 1.00 am on 15 July and arrive in Broome 28 and a half hours later.

So, ladies and gentlemen, even without looking at the Truck Stop video, if you accept the evidence of Mr Hepi it would be open to you to find that the accused could have been in Alice Springs in the early hours of 15 July 2001. If the accused was in Alice Springs in the early hours of 15 July 2001, it would be open to you to conclude that he could have been at Barrow Creek at the time of the events in question. The evidence of Mr Hepi is, of course, in conflict with the evidence of the accused, who said that on average it took a day and a half to get from Alice Springs to Broome, depending on road conditions and whether you are in a hurry or not. When he was asked what it could be done in, if he was in a hurry, the accused responded, ‘Day and a half, that’s basically what you work on’.7 Reminded of Mr Hepi’s evidence that it could be done in 16–20 hours, the accused responded, ‘Yeah, well, he probably would try something — attempt something like that’ and went on to say it could not be done that quickly. 4.17

In the second part of this exercise, the Chief Justice calculates the total distance from Alice Springs to Broome, divides the road conditions into sections of bitumen and sections of dirt, and calculates the speeds needed to cover these distances, assuming there is no stopping and if an average speed of between 90 and 110 km/h is the speed travelled on the bitumen sections.

HIS HONOUR: Ladies and gentlemen, what distances are involved and what type of road surfaces and conditions? As to the distance from Alice Springs to the Great Northern Highway, just south-west of Halls Creek, if my arithmetic is correct, the map in the front of your jury book says 1035 km, the other map says 1034. I will use 1035 km as the distance from Alice Springs to the Great Northern Highway, where the Tanami Road joins it a short distance from Halls Creek. From that point where the Tanami Road joins the Great Northern Highway to Broome is 665 km. A total distance therefore from Alice to Broome via the Tanami is 1700 km. How much of that was dirt? Approximately 20 km is bitumen on the Stuart Highway from Alice Springs to the Tanami turnoff. Then,

according to Mr Stanes, in July 2001 there was a further 127 km of bitumen from the Stuart Highway towards Yuendumu. It was bitumen from Halls Creek to Broome. On my calculations, that leaves a balance of 888 km of dirt, all on the Tanami Road. So, ladies and gentlemen, you might care to test the evidence by calculating average speeds with the 20 hours, suggested by Mr Hepi, and the 28 and a half hours from 1.00 am 15 July to 5.30 am on 16 July in Broome. Could that 1700 m be done in 20 hours? If the 812 km of bitumen was covered at 115 kph, it would take a little over seven hours to traverse the bitumen sections. That would leave 13 hours to cover 888 km of dirt, which would require an average speed of nearly 68.5 kph. So 20 hours would involve on these types of figures, an average of 115 kph on the bitumen and about 68.5 kph on the dirt. [page 210] You can approach this from a different way and use lower average speeds. For the 812 km of bitumen, if the average speed was 90 kph, that distance would be covered in a little over nine hours. As to the 888 km of dirt, at an average speed of 50 kph, it would take approximately 17 and three-quarter hours to cross the dirt section of the Tanami. On those speeds, 90 kph and 50 kph on the dirt, the entire journey from Alice Springs to Broome would take somewhere between 26 hours and 45 minutes and 27 hours. If higher average speeds are used, obviously the time is shortened. For example, at 100 kph, that would mean the 812 km of bitumen would be covered in something between eight and eight and a quarter hours. If the average across the 888 km of dirt was 60 kph, that distance would covered in a little over 14 hours and 45 minutes. So, ladies and gentlemen, at 100 kph across the bitumen and 60 kph across the dirt, the total distance from Alice Springs to Broome would be covered in approximately 23 hours.

So leaving aside any suggestion of 20 hours, using those figures as examples, the approximate times for the entire journey, without allowing for stops, would range from 23–27 hours. If the accused stopped at Fitzroy Crossing for something in the order of an hour, the total time is increased from 24–28 hours. Ladies and gentlemen, I am about to turn to factors that might, from the evidence and as a matter of commonsense, affect that time but I notice that we have reached the hour of adjournment. So, being Friday, I am sure you will appreciate if I actually adjourn on time. Ladies and gentlemen, I will have a much better idea at the end of Monday but, although there is a chance that you will go out on Tuesday, it is more likely to be Wednesday, but I cannot be more precise than that. So thank you. If you will be back here at 10.00 am on Monday morning. HIS HONOUR: Well ladies and gentlemen, I hope you are feeling refreshed, we have a way to go, but please bear with me. It is very important that you be reminded of the evidence and that you give careful consideration to all of the evidence and what has been put to you by counsel. ADJOURNED We had reached the point of dealing with times and distances and I just recap briefly. Alice Springs to Broome 1700 km; 1.00 am Sunday 15 July to 4.00 am Western Australian time, being 5.30 am Northern Territory time on Monday 16 July, is 28 and a half hours travelling time. On the figures that I gave you as examples at 100 kph on the bitumen and 60 kph on the dirt, it would take 23 hours. At 90 kph and 50 kph it would take pretty close to 27 hours. 4.18

Having discussed the possible speeds needed to travel the total distance in 28.5 hours, the next part of the exercise is to discuss factors which may have affected Murdoch’s ability to have completed the journey in 28.5 hours or less, such as road conditions etc.

HIS HONOUR: Now ladies and gentlemen, you hardly need evidence from witnesses to tell you that there are a number of factors which will have influenced the time taken, particularly on the dirt section of the Tanami. There are a number of questions that you [page 211] might care to consider. First, is the driver in a hurry? Obviously, on the Crown case, the accused would have been in a hurry. Please remember I am here dealing not with the accused’s version, I am considering the question of whether it is possible, if the accused wanted to do it, to travel that distance in the time available. So on the Crown case, the accused would have been in a hurry. How much of the trip was at night, particularly on the dirt? From Alice Springs there was a total of 147 km on bitumen. If a driver in a hurry travelled at say 100–110 kph on that bitumen section, the driver would arrive at the dirt at somewhere around 2.00–2.30 am. The next five hours, approximately, would be on the dirt at night or in the half light of the morning. What type of vehicle was being used, and was it equipped with good lights? You know the accused was driving a Toyota Landcruiser fourwheel drive, and if you accept the evidence of Ms McPhail and Mr Johnston, that vehicle was fitted with spot lights. Mr Johnston described them as ‘100 watters, six inch sort of air craft landing light type things’ giving a lot better vision than ordinary headlights. Ms McPhail said the accused’s vehicle had big spotlights. What is the experience of the accused and does the accused have any knowledge of the road, that is driving experience and knowledge? The accused told you, he drove trucks for a number of years, mainly in Western Australia carting livestock and general and driving as well, together with driving in the eastern states, including Sydney. He told you that the first trip involved with cannabis was the trip with Mr Cragan in 2000 and that in the course of the business with Mr Hepi he had many trips between Broome and South Australia. Only once did he

use the route through Katherine and Kununurra. The other routes, were the Buchanan Highway or the Tanami Road, or down through Western Australia and across the Nullarbor. Asked if there was any particular route that was better than others, the accused gave the following answer: ‘No particular way but usually the Tanami was your best one. If you could get across it, was sort of what you’d call your shortest route and no checks on there, no fruit fly roadblocks checks’. Counsel for the Crown took you through an overview of the trips. He suggested there were at least seven trips between February and July 2001, plus the trip with Mr Cragan in 2000 which was across the Tanami. Well, ladies and gentlemen, in view of the evidence of the accused and taking into account other evidence, if you accept it, you are able to draw your own conclusions as to the experience of the accused generally in driving on remote roads, including dirt roads, and on the Tanami in particular. As to possible speeds that the accused might be capable of driving, both on the bitumen and the dirt, Mr Johnston told you the third trip in May 2001 was intended to be via the Tanami but the Tanami was closed and instead they used the Buchanan Highway via Top Springs and Dunmarra. According to Mr Johnston, the trip back from South Australia to Broome via the Buchanan Highway was achieved in one day and 19 hours. Mr Johnston said the accused did all the driving. The accused said Mr Johnston was wrong about that. Well, it is a matter for you. Do you accept the evidence of Mr Johnston and if you do, does that give you some idea of the capacity of the accused to drive long distances without rest and does it give you some indication as to the type of speeds that the accused might be prepared to drive at if the need arose. In connection with speed, Mr Johnston said that on the trip down to South Australia some of the dirt section of the Buchanan Highway was travelled at night. He thought

[page 212] coming back was in day light. Now asked whether he could give an idea of the type of speeds on the Buchanan Highway dirt sections at night, Mr Johnston replied: ‘I don’t know, around 100 km, I suppose’. As to day time on the dirt he answered: ‘About the same, maybe a bit faster. It sort of maybe 110, didn’t do too much more than that, it’s only a diesel, so yep’. As to bitumen, Mr Johnston said: ‘Probably 110’. Ms McPhail said she was doing about 100 kph when the accused overtook her. That, of course, was on bitumen. Mr Cragan told you that he crossed the Tanami with the accused during 2000 in the old series Landcruiser. Conditions were rough in places but in others, according to Mr Cragan, they were able to travel at a decent speed of 100–110 kph. The accused drove all the way. Mr Cragan thought that on the return trip they crossed the Tanami at night. Mr Cragan also said that, on the return trip, the section from Stuart Highway turn-off to Halls Creek, took over 24 hours. He said Mr Murdoch was careful with his motor vehicle and cautious in terms of looking after it while driving the Tanami track. Well, it is a matter for you, but you might wonder how that period of 24 hours fits with the evidence of Mr Cragan that on the way down, although the track was rough in places, they were able to make a decent speed of probably 100–110, and on the way back conditions were pretty good and they made good speeds. Mr Cragan said there was no difficulty on the Tanami on the way back and they travelled it in day light. So, ladies and gentlemen, bearing in mind that the dirt section across the Tanami is 1888 km in length,8 it is a matter for you whether you think Mr Cragan’s evidence is accurate that it took 24 hours. The other factor of importance to the question of possible speed on the dirt section of the Tanami is, obviously, the road conditions. As the accused told you, they can vary quite considerably from day to day. But the Crown relies on the evidence of witnesses who were familiar with the road in mid-2001. They are Mr Bruce Stanes9 and the police officer, Mr Hall. You might have little difficulty in accepting that they

both knew the road very well. From Mr Stanes you have photographs of the Western Australia side taken on 17 July 2001. That is exhibit P306. You also have other photographs taken just under a month earlier on 20 and 21 June, exhibit D14. I will not canvas their evidence in detail. Mr Stanes explained the various sections to you and how safe speeds would necessarily vary according to conditions. You might recall, ladies and gentlemen, Mr Stanes described himself as not a lead foot and he said people were always passing him. You might think, on the other hand, it is highly unlikely that anyone would be passing Mr Hall. It is a matter for you, but you might think that any estimate given by Mr Stanes that is safe speed estimates, is likely to be conservative. According to Mr Stanes, as at 17 July 2001 a fair and reasonable safe time from Alice Springs to the Halls Creek turn-off, that is to the Great Northern Highway, would be 14 and a half hours. If you accept the evidence of Mr Stanes that a safe speed during day light would mean you could get from Alice Springs to that turn-off in 14 and a half hours, it is not difficult to add the time to cover the 665 km of bitumen from that [page 213] turn-off to Broome. At 100 kph on the bitumen that distance would be covered in just over six and a half hours, which would give you a total travelling time, on the estimate of Mr Stanes, from Alice to Broome of just over 21 hours plus, of course, stopping time. You can cross-check that, if you wish, against the 23–27 hours on the average speeds I used earlier, as examples. Mr Hall also gave some estimates. He travelled most of the Tanami in June 2001, while on holidays. He and his fellow travellers were experienced four-wheel drivers and they were all towing campertrailers. As I said, you might think Mr Hall is a considerably faster driver

than Mr Stanes. He spoke about an average of 80–90 kph across the Tanami and of doing some sections at 100–120. Asked to give an estimate of a reasonable time from Alice to the Great Northern Highway turn-off to Halls Creek, Mr Hall said it could be done in 10– 12 hours given the road conditions at that time. He added, what you might think is a very relevant and commonsense observation, that it also depends on the driver and the vehicle and whether the driver is experienced. So, ladies and gentlemen, if you add just over six and a half hours to cover the remaining 665 km on the bitumen to Broome, on Mr Hall’s estimate on the trip from Alice to Broome would take just over 16 and a half hours to just over 18 and a half hours plus stopping time. Mr Hall was properly cross-examined about a number of factors which can influence the speed, particularly the safe speed, of which the Tanami can be driven. The time of day, the wildlife, dust, etc. When it was put to Mr Hall that it would be prudent for someone without intimate knowledge of the track, driving at night, to travel at 50–60 kph on average, Mr Hall gave you this answer: Depends on the person, if they are cautious or not, sir. There have been tourists on that road that have travelled at high speed, who have had no experience on the track. Some have come to grief, others have made it all the way through, at night time as well as day time. There are some people who take their time, particularly the older ones, but a lot of the younger ones and particularly some tourists, they just travel the road faster than what I would travel it and like I said, some come to grief. Well, what do you make of the evidence of Mr Stanes and Mr Hall? The accused disagreed with their views and was quite derogatory about the evidence of Mr Hall. He disagreed with the concept of increasing the speed slightly to ride on top of corrugations. Is it reasonably possible that the accused was telling you the truth, or are you satisfied that Mr Stanes and Mr Hall are right and that the accused was embellishing his evidence, in an endeavour to avoid a conclusion that if he wished to do so, he could have left Alice at about

1.00 am on 15 July and arrived in Broome at 4.00 am Western Australian time on 16 July, being 5.30 Northern Territory time? The other witness I have not mentioned in connection with the possibility that the accused could have been at the truck stop, is Mr Jamieson. As you know, he and his wife were running the petrol stop at Fitzroy Crossing. At the moment, I am concerned only with respect to Mr Jamieson’s evidence about times and I will come back to his evidence later with respect to issues concerning the canopy, the camper-trailer and the date. For present purposes, I will assume that Mr Jamieson has the right weekend. The accused told you he arrived at Fitzroy Crossing at about 8.00 pm. Mister Jamieson said the accused arrived just on dark between 6.00 and 9.00 pm. Mr Jamieson was [page 214] unable to be any more precise. For the purposes of calculations, if you use the period 6.00 pm to 9.00 pm, that is Western Australian time. In Northern Territory time, it means arrival at Fitzroy Crossing between 7.30 pm and 10.30 pm. If a vehicle left Alice Springs at about 1.00 am on 15 July and arrived at Fitzroy Crossing between 7.30 pm and 10.30 pm Northern Territory time, that means a total travelling time of between 18 and a half and 21 and a half hours. How does that travelling time compare with other estimates? In particular, you will recall that Mr Hall estimated that travelling at between 80 and 90 kph, a vehicle could get from Alice Springs to Fitzroy Crossing via the Tanami in 16 hours. Mr Hall said that estimate was based on someone experienced in a four-wheel drive and who would know the off-road conditions. As with other estimates, this can be tested by looking at distances and average speeds. Alice Springs to the Great Northern Highway, just out of Halls Creek, is 1035 km. From that point to Fitzroy Crossing is

272 km, giving you a total distance of 1307 km. Of that distance, 888 km is on dirt, leaving 419 km on bitumen. Assuming a departure in Alice Springs at 1.00 am on 15 July and arriving at Fitzroy Crossing between 7.30 and 10.30 pm Northern Territory time, as I said, the total travel time is 18 and a half to 21 and a half hours. For the sake of this exercise, if you assume the 419 km of bitumen is covered at 100 kph, in about 4 hours and 15 minutes, that would leave between 14 and a quarter and 17 and a quarter hours to cross the 888 km of dirt on the Tanami. If the crossing of the Tanami took 14 and a quarter hours, the average speed would be just over 62 kph. If that distance took 17 and a quarter hours, the average speed would drop to about 51.5 kph. Then, of course, you can add on time for stopping at Fitzroy Crossing and then the time to travel the distance on the bitumen which was 393 km from Fitzroy Crossing to Broome. Ladies and gentlemen, if you accept the exercise that I have just undertaken on the basis that the accused left Alice Springs at 1.00 am on 15 July, he could have arrived at Fitzroy Crossing between 6.00 and 9.00 pm Western Australian time, being 7.30–10.30 Northern Territory time, if he had averaged between 51.5 and just over 62 kph on the dirt, and 100 kph on the bitumen. If you accept that situation, what do you make of the accused’s evidence that if he left Alice at 1.00 am, he could not get to Fitzroy Crossing by 8.00 pm. In that context you are entitled to bear in mind not only the evidence of Mr Stanes and Mr Hall, but the accused’s own evidence that not being in a hurry he was travelling across the Tanami on this trip at between 50 and 65 kph, possibly up to 70 kph. Ladies and gentlemen, as I said at the outset of this discussion about distances and speeds, this is all about the question of opportunity to commit the crimes. If the accused was at Barrow Creek at about 8.00 pm on 14 July 2001, has the Crown proved that he had sufficient time to make it to Broome by 4.00 am Western Australian time on 16 July 2001? There are three stages, Barrow Creek to Alice Springs and it is a matter for you whether you make allowance for disposing of the body on the way. Alice Springs to Fitzroy Crossing is the second stage and

the third is Fitzroy Crossing to Broome. For the sake of this exercise, may I suggest that you put aside the truck stop video, just put aside the truck stop video for the moment, and ask the following questions. First, are you satisfied that leaving Barrow Creek at about 8.30 pm, in a hurry to distance himself from the scene, are you satisfied the accused could have covered the 292 km to Alice at about 110 kph? If so, that distance would take about just over two and half hours. That would put the accused in Alice Springs at about 11.15 pm. [page 215] If you added perhaps one and a half hours to dispose of the body and, if it is your view, pick up the camper and drop it off, while getting fuel then of course you have the accused — could the accused have been in Alice at about 12.45 pm? Second, still leaving aside the truck stop video, are you satisfied given the distances, road conditions, accused’s vehicle and driving experience and all the other factors, that if the accused was in a hurry to distance himself from the Northern Territory, he could have refuelled, left Alice somewhere around 1.00 am and made it to Broome 28 and [a] half hours later. Could he have done that if he was towing the camper trailer? If you are not satisfied of these matters, the Crown would have failed to prove that the accused had the opportunity to commit the crime. If, on the other hand, you are satisfied of these matters, then even if you put aside the truck stop video, the Crown would have proved that the accused had the opportunity to commit the crimes. 4.19

In the next section, the Chief Justice deals with the relevance of the truck stop video by showing that, if the Crown is correct that Murdoch was at the truck stop at about 12.15 am, this fits with the times calculated on the Crown case to prove opportunity. On the other hand, if the accused was not the person on the video, the

defence suggested that the perpetrator might have been someone other than Murdoch. Logically, by itself this evidence cannot prove or disprove either contention. As far as evidence of opportunity is concerned, at best it is circumstantial evidence which, depending on what finding is made about it, might tend to support one case or the other. The evidence about this apparently relatively minor issue consumed an enormous amount of time during the trial, so it had to be addressed in some detail. This is because the truck stop video evidence went a lot further than mere evidence of opportunity. Of more significance was the fact that Murdoch denied that he had stopped at the truck stop, but this point is dealt with later. What made this evidence of great importance was that it confirmed the evidence of Lees, in that the description she gave of her attacker fitted the person shown on the video (although the Chief Justice told the jury that her evidence of identification of Murdoch from the CCTV footage should be ignored), as did her description of his vehicle, and it added weight to the circumstantial evidence of the accused’s blood found on Lees’ T-shirt and his DNA found on the cable ties and the gear stick. The Chief Justice addressed a number of points about the video: the evidence concerning the quality of the video; the dangers of the jury making their own assessment from having watched the video a number of times; whether the person on the video was tall and lanky, and stooped; the evidence as to what items were purchased and whether they were consistent with the sort of items which might have been needed by Murdoch; the description of this person given by Mr Head and how this fitted with Murdoch’s appearance at that time; and the evidence concerning the vehicle in the CCTV footage and whether this showed that the vehicle was Murdoch’s. To make this comparison it was necessary to canvass the evidence concerning the features of Murdoch’s vehicle and canopy at that time.

[page 216] HIS HONOUR: What then of the Truck Stop video? Ladies and gentlemen, the truck stop video has nothing to do with any assumption by investigators, or others, that it is the offender in the video. Any assumption by anyone in that regard is irrelevant to your consideration. The Crown says that although on times and distances they have proved opportunity by those matters themselves, the video adds weight to the opportunity, because it proves the accused was in Alice Springs right at the time you would expect him to be there if he had committed the crimes and fled the area disposing of the body on the way. On the other hand, the defence says that at the least it is a reasonable possibility that it was not the accused at the truck stop and therefore it is a reasonable possibility that a candidate for being the offender, other than the accused, was in Alice at that time. So what then of the video. Are you satisfied that it was the accused and his vehicle or do you have a doubt about it? Ms Lees was shown photographs from the truck stop video which are now exhibit P38. When police first showed her the photograph of the man entering the shop, Ms Lees thought the man looked too old. Subsequently she was shown an enhanced version and came to the view that the man depicted was the man who attacked her. By then it must have been clear to Ms Lees that the police believed the man in the video was the offender. In addition, as you know, Ms Lees had very limited opportunity to see the offender walking and the movements in the video are frame by frame. In fact, ladies and gentlemen, if memory serves me correctly, Ms Lees did not ever see the offender walking. On her version he came into the Kombi Van. After she was tied up, somehow she fell out. She does not say she saw the offender walk from one side of the Kombi Van to the other or come through the Kombi Van, and on her version the offender walked her back to the four-wheel drive from a position behind her. So on Ms Lees’ evidence she did not ever see the man walking. In these circumstances, ladies and gentlemen, you should disregard

Ms Lees’ belief as to the offender being in the video. Her belief in that regard cannot help you. Perhaps her belief is very understandable, but it cannot be of any assistance to you. As to the vehicle in the truck stop, Ms Lees said it was similar to the vehicle being driven by the man that night. As you know, the accused denies that it was his vehicle or him in the video. When it was put to the accused that it looks like him, the accused replied: ‘It looks like a lot of people. Like I said, it is not me there and it is not me’. The accused said the vehicle in the video was not towing a campertrailer and the bull bar was different. He told you his vehicle still had the original ARB bull bar that you can see in the photographs, exhibit P244. He said the heavy duty bull bar was put on after this trip and even that heavy duty bull bar is not the same as the one shown in the video. He said the one in the video is more angled forward at top and bottom than the heavy duty bull bar. The accused also said that the vehicle in the video had flared mud guards which were not present on his vehicle. He suggested there might be a filler pipe for a fuel or water tank on the passenger side. These were possible features to which Mr Panozzo referred. The accused also said the exhaust shown on the vehicle in the video is different from the exhaust on his vehicle. He acknowledged that the canopy seen in the video is similar to his canopy, but added that there are thousands like that. Ladies and gentlemen, you know the film, exhibit P251, comes from more than one camera. You also know that you do not have the original film because the hard drive was not seized. The images were copied onto a VHS cassette. There has been some enhancement which has apparently improved the images. Well, there is no way, [page 217] on the evidence, of knowing just how good the original images would

have been. Mr Ride told you that when he viewed the images on the monitor when he was doing the copy, he was unable to see the number plate of the vehicle. He told you the system was not designed to provide a legible view of the number plate. That evidence was not challenged in cross-examination and no evidence was led from Professor Spring to contradict it. So as I said to you previously, in this instance with respect to the truck stop video equipment, whether the police should or should not have seized the hard drive and whether they made a sound judgment or otherwise is not to the point. Views might differ according to one’s perspective. What is important is that you know you do not have what would have been the best evidence and you must work with the evidence that you have been given. Whether you are able to draw any conclusions from the evidence you have been given is a matter entirely for you. Leaving aside for a moment the views of witnesses who have looked at that video, you are entitled to look at the video and, within limits, draw your own conclusions. But in the context of your drawing your own conclusions from your observations of the video, I must add a note of caution. I am sure you appreciate that the quality of the video is not good; you hardly need me to tell you that there are dangers in trying to draw conclusions from your own observations of the images of poor quality. In addition you have the evidence of Professor Spring who spoke about information or data being lost every time there is a copying process unless it is a digital to digital process and how the software is programmed to reinterpret or fill in data. Professor Spring expressed the opinion that the film and photographs available to you are not suitable for analytical purposes. He said there is a risk that some of what you see is artifacts introduced to the images by software in an endeavour to improve the general appearance of the picture. So, ladies and gentlemen, you need to exercise great caution in trying to draw your own conclusions from your observations only. In addition, when it comes to comparing the vehicle in the truck stop with the accused’s vehicle, you do not have a photograph of the accused’s vehicle as it appeared in July 2001. All you have are the descriptions by the witnesses. So in that situation, although you may

make a general comparison, it will be obvious to you that from your viewing of the video alone — and I stress from your viewing of the video alone — you could not safely draw a conclusion as to whether the vehicle in the video was the vehicle driven by the accused. I will come back to the evidence concerning the vehicle when dealing with the evidence of witnesses who were familiar with that vehicle, but I am dealing with you drawing your own conclusions purely from looking at the video. At best, if you accept the general description given by the witnesses and leaving aside specific issues such as the bull bar etc, from your own viewing, at best, you could conclude that the vehicle shown on the video is similar to the accused’s vehicle. As to the man depicted in the video, the warning I gave you a moment ago based on the evidence of Professor Spring applies with even greater force. The quality of the image of the person in the truck stop is poor. You might think that there are some very general features apparent on the images, but the image is far from clear enough to enable you to draw a conclusion beyond reasonable doubt, from your own viewing alone, that the man in the video is the accused. The images are simply not clear enough. One of the general features you might think you can discern of the man in the video — and this is a matter entirely for you — is what might be called rounded shoulders or a stooped posture. I will come to the evidence of Dr Sutisno later, but in the context of that feature I remind you of the evidence of Mr Johnston and Ms McPhail. When Mr Johnston was asked how the accused stood, he said, ‘There might be a slight stoop in the shoulder’. Later in his evidence, it was put to him that Mr Murdoch does not [page 218] appear stooped and Mr Johnston replied, ‘No I wouldn’t say stooped, no’. When it was put to Mr Johnston, however, that the accused adopts quite an erect, upright posture, Mr Johnston replied, ‘I don’t know about erect but depends on what degree of erect and whatever, I don’t

know’. When it was suggested that the accused stands upright, square shouldered, Mr Johnston replied, ‘Not really, not to my knowledge anyway’. As you know Ms McPhail saw the accused on 19 and 20 June 2001. She said that when she first saw the accused as she drove past and he was parked on the side of the road, she saw that the man was ‘Tall and lanky, and a bit stooped’. She said, ‘He was a bit rounded in the shoulder’, and she described the man as ‘Standing there with his dog, hands on his hips in a very relaxed pose, I suppose’. Now that was her evidence of her first view of the accused at a time when she did not know him and she drove past and saw him on the side of the road. Asked to describe the accused and this is a description being given by Ms McPhail having got to know the accused on that trip, Ms McPhail gave this answer: He was a very tall man, very wiry, you know. He was quite lean and tall. He had a moustache. Was there anything specific about his posture that you remember? — With being so tall, he was quite stooped. Ladies and gentlemen, Ms McPhail’s evidence about the accused’s stooped posture and lean build was not challenged in crossexamination. Ms McPhail also said the accused had a moustache and was wearing simple clothes. Jeans and maybe a windcheater or flannelette checkered, coloured shirt. Well, it is a matter for you how you view those descriptions and whether those descriptions compare as consistent with what you see of the man in the video or otherwise. Now, as I have emphasised, I have been talking about what conclusions you might or might not be able to draw from your viewing of the video alone. Obviously, there is a deal of other evidence to which you should have regard in deciding whether you are satisfied that it is the accused and his vehicle depicted in the video. I remind you that the evidence of Professor Spring applies to the other evidence as much as it applies to your viewing of the video. There

is a need for caution because of the factors identified by Professor Spring and you should bear those matters in mind when you are considering the evidence of other witnesses who have been asked to express views based upon their viewing of the video. Ladies and gentlemen, counsel have canvassed the evidence concerning the video at some length so I do not intend to repeat that exercise. I will endeavour to summarise the main points. 4.20

In the next section, the Chief Justice summarises the evidence concerning the CCTV footage and the submissions of counsel concerning this evidence. He begins with the evidence from the staff at the Shell Truck Stop, their descriptions of what they saw and their evidence concerning the purchases made there, and the use which could be made of this evidence as circumstantial evidence supporting or not supporting the conclusion that Murdoch is the person shown in the footage.

[page 219] HIS HONOUR: First, the people at the scene. Ms Deborah Southerden and Mr Andrew Head. They worked the 10.00 pm–6.00 am shift. The main point discussed from Ms Southerden’s evidence concerns the number she had going around in her head. She told you that about a month after seeing the vehicle, she was waking up in the middle of the night and she had the number 333 recurring in her mind. She said she wondered whether it was the number of the vehicle so she rang the Alice Springs Police Station. She told you that she did not even know whether the numbers were from the number plate, but it was three nights in a row when the numbers kept popping into her head. Ms Southerden’s attention was drawn to her statement to police in which she said: ‘After thinking about this, I believe I remember part of the number plate on the white ute. I believe it was 333’. When asked whether that would have been correct at the time she made the

statement, Ms. Southerden replied that it was the thought she had that it may have been from the white ute. She also told you in reexamination that she thinks the wording of the statement was wrong. She said that in that month, she saw a lot of vehicles and noted many registration numbers. Mr Head saw both the vehicle and the customer. His initial view was on the monitor, but then he had a view of the vehicle from the truckie lounge. He described the vehicle as a white Toyota Landcruiser single cab with a green canopy on it. It was a single cab tray top. Now, you have the evidence of Mr Head from personal observation, not just from an observation of the video. Three main points about the man as described by Mr Head were highlighted by counsel. First, Mr Head estimated the height of the man as 175 cm. Second, he said the man was of slim build. To him slim and thin are the same. Third, as to the features of the man, Mr Head told you that the man had a moustache and his hair was sort of down to about his collar. He said the hair was probably black. Mr Head said in cross-examination that it was a dark messy moustache. So, ladies and gentlemen, again you have direct observation of the man in the shop from Mr Head which is not based upon the video. Mr Head described the cap as a baseball style cap with a peak at the front and he thought there was some sort of motif on the front above the peak. He said the motif was small and probably white in colour. He thought the age of the man was probably late thirties or forty. In your view how does that description compare with what you know of the accused as at 14 July 2001? As to height. The Crown says Mr Head is in error. The Crown relies on Mr Ringrose and I will come to him in a moment. As to the slim build, I read to you a moment ago Ms McPhail’s evidence that the accused was very wiry and quite lean. On the other hand, of course, counsel for the accused put to you that Mr Head was describing someone inconsistent with being the accused. Another feature from the evidence of both Mr Head and Ms Southerden is the presence of a security car and a police vehicle in the

truck stop when the four-wheel drive pulled in. Not knowing whether Ms Lees had raised the alarm, would you expect the accused to pull in, particularly if he was carrying a body in the back of the vehicle. On the other hand the Crown puts to you that desperate people do desperate things. On the question of the likelihood of the accused using the Shell Truck Stop, you will recall that it was suggested to a number of witnesses that the accused had a preference for BP. Only Mr Cragan agreed with that suggestion. More than one witness, however, agreed that the accused used a particular BP Truck Stop in Port Augusta. You will also recall the evidence of Mr Cragan that on a trip heading south in 2000, the accused [page 220] refuelled at the first truck stop in Alice Springs on the northern side. On the evidence that is the Shell Truck Stop. The accused agreed in evidence that he had previously used that Shell Truck Stop. The final feature from the evidence of Mr Head concerns the purchases made by the man in the video. The Crown asks you to compare those purchases with the type of purchases you might have expected the accused to make if he was at that truck stop in the middle of the night. The docket is exhibit P270. Could we have that on the screen please? Ladies and gentlemen, first there is $124.50 worth of diesel. Well, you know the accused was driving a diesel vehicle, but also diesel Toyotas are very common. The Crown put to you that the accused would be filling right up because he had been out of his way up to Barrow Creek and back. On the other hand it is not unusual, of course, for people in the centre of Australia to be buying large quantities of diesel fuel. There were two bags of crushed ice, two Mt Franklin spring waters, each of 1.5 litres and one iced-coffee. Mr Johnston told you that drinks

were carried in the esky and were kept cool by crushed ice purchased at a service station when they purchased fuel. He said the normal purchase at a fuel stop would be two bags of ice and drinks to restock the esky. Mister Johnston favoured Diet Coke, but according to Mr Johnston the accused would have flavoured milks, usually iced coffee or choc mint. Mister Johnston said the accused used to get heartburn fairly badly and the flavoured milks relieved the heartburn a bit. The other thing that Mr Johnston told you, ladies and gentlemen, was that the man in the video put the items in the right rear corner of the tray, which is the area where the accused kept the esky. The accused denied that the items purchased were what he would have bought. He said he never bought water and, if he bought iced coffee, he would buy five or six. Ladies and gentlemen, do you accept the evidence of Mr Johnston that the purchases were the type consistent with what he would expect the accused to make. If the answer to that question is yes, obviously that fact alone does not prove that it was the accused at the truck stop, but it would be a piece of circumstantial evidence that you would be entitled to keep in mind. 4.21

Next, the Chief Justice deals with the evidence relating to the canopy, and the different contentions made by each side. There is no photograph of Murdoch’s vehicle which is proven to have been taken on the date in question, although there are before and After shots from which an inference can be drawn as to what it actually looked like and whether or not this fitted with the vehicle shown in the CCTV footage.

HIS HONOUR: I turn then to the other evidence. First, the other evidence as to the vehicle depicted in the truck stop. You have the evidence of Mr Panozzo who spent 38 and a half years with Toyota. There was no challenge to the opinion of Mr Panozzo that the vehicle in the truck stop was a 75 series. You should bear in mind however that the 75 series was a very

common vehicle, it was sold between 1984 and 1999 and it was a big seller. Mr Panozzo guessed about 700 units a month and a lot of them were white. Blue, grey or sable were common interior colours. [page 221] In Mr Panozzo’s opinion the wheels on the vehicle shown in the truck stop video are Sunraysia wheels. You have a photograph of Sunraysia wheels in exhibit P279. Mr Panozzo also spoke about the wheels on the vehicle in exhibit P244 — could we have that up please. It is common ground this is the vehicle that was purchased by the accused in March 2001. Mr Panozzo told you those wheels are Sunraysia wheels, but they are not oversized wheels and Mr Panozzo told you that the wheels on the vehicle in the truck stop appear to be oversized. Thank you, that can come down. In considering this question of oversized wheels, you are entitled to bear in mind that it is an agreed fact that on 18 May 2001, in Midvale, Western Australia, the accused purchased five 16 inch all terrain tyres which are a larger size then a standard tyre, together with five 16 inch white rims with a six stud pattern. The photos of the tyres and the rims are attached to the agreed facts, exhibit P239. And as to the Sunraysia wheels, I remind you that on 12 September 2002 when police conducted the search at Port Broughton, they found six 16 inch white Sunraysia style tyre rims which it is admitted belonged to the accused. The accused agreed in his evidence that the wheels on the vehicle at the truck stop were the same or similar to his wheels. Mr Panozzo was not certain but he thought the vehicle in the truck stop may have had flares in the front mud guards, which can be attached by simply drilling holes and using screws or bolts. However, Mr Panozzo added the qualification that although it appeared to him to be a flare, he could not really tell as the definition in the photograph was not clear enough for him to say with certainty that there was a

flare. As you know the vehicle in exhibit P244 does not have a flare and the accused said his vehicle did not have flared mudguards. Well, counsel for the accused relies on this evidence as a establishing at least a possibility that it was not the accused’s vehicle. On the Crown case, however, you can reject that possibility because of all the other evidence and because the image is not clear enough to say it is a reasonable possibility that the vehicle has flares. The other witness relevant to motor vehicle who did not know the accused or the vehicle was Mr Ringrose. He told you about arriving at measurements of the canopy and the vehicle. I need not canvass the figures he gave you as his calculations for the canopy. They are in exhibit P284 and are to be compared with Cnst Sandry’s measurements in P197 and 199. Counsel for the accused put to you that there is a discrepancy as to the length and this is a piece of evidence, said Mr Algie, that points to the canopy on the vehicle in the truck stop being inconsistent with the size of the canopy on the rear of the accused vehicle. On the other hand the Crown put to you that these are not precise figures and they were calculated with limited information and based on poor quality images. Mr Wild put to you that the difference was minimal and he reminded you of the evidence of both Mr Panozzo and Mr Duthie who said that the tray on the Landcruiser in the video was a 7 footer, not the usual 8 footer. Mr Duthie also spoke about the hinges and lugs which he thought matched those on the accused’s vehicle. Ladies and gentlemen, I am about to turn to those people who knew the accused and his vehicle and I will do that after we have had the morning break, thank you. [page 222] ADJOURNED 4.22

In the following section, the Chief Justice refers to the evidence and

the contentions made by the parties concerning the witnesses who ‘recognised’ Murdoch and his vehicle from having seen stills from the CCTV footage in The West Australian newspaper, and from having seen the same photos later on. There is a difference in the weight of this evidence when compared with the evidence of Lees about the same subject because these witnesses knew the accused well and some of them had seen the whole footage, whereas Lees had not. His Honour also deals with the evidence relating to the purchase or installation of a bull bar with a scooped bottom and whether the evidence on this point reliably supported one side or the other. HIS HONOUR: Ladies and gentlemen, still with the truck stop video and witnesses who knew the accused and his vehicle and starting with the vehicle. As you know, two of the major issues about which there have been submissions and evidence concern the bull bar and the canopy. Mr Duthie is unable to help you with the date on which the bull bar was fitted, that is the big one. But it was Mr Minshull who carried out the sale and the fitting. He gave you two sketches. The first was P300. If we could have 300 up, please? Now, that was Mr Minshull’s sketch of the bull bar that was there at the time that this changeover occurred. He called that an ARB light duty bar. Then he drew the bar that he sold to the accused which is P301. If we could have that up please? And you will remember Mr Minshull said the bottom bit is a like a scoop. When Mr Minshull was shown the pictures from the Truck-Stop video in P285, he said the bull bar on the vehicle in the video looks similar to the bull bar he sold to the accused and he included in that similarity the scoop part of the bull bar. Thank you, we’re finished with that. The critical question, of course, is the date of the sale. You have been reminded of the evidence by counsel and you have heard their submissions. Mr Algie put to you that Mr Minshull is reliable when he says that the sale occurred after the publicity about Mr Falconio and when the accused was clean shaven. And he pointed out to you that Mr

Minshull gave that timing when he spoke to the police in December 2002. Mr Wild said that you should reject Mr Minshull’s timing because Mr Minshull admitted that even when he spoke to the police about the timing, it was a guess. Mr Wild urged that Mr Johnstone has a reliable way of fixing the timing. Ladies and gentlemen, counsel will correct me, but I think there is a factor that neither of them have mentioned about Mr Minshull’s evidence and it relates to the type of canopy on the back of the accused’s vehicle at the time of the purchase. According to Mr Minshull, when the sale occurred, there was a canopy on the back, but it was just a wooded roof with no sides. Mr Minshull said there was a long-range fuel tank and carpet on the floor. Well, counsel for the accused has pointed out that on the accused’s evidence, he started dismantling things, but I will come to the evidence about [page 223] the canopy in a moment. But if I remember it correctly, no one, other than Mr Minshull, has spoken of a wooded canopy roof with no sides. The critical question is whether you are satisfied, from a consideration of all the evidence, that Mr Minshull is wrong about the sale occurring after Mr Falconio disappeared and when the accused was clean shaven. That was the other factor that Mr Minshull said he recalled. There is no evidence to suggest that some time around the middle of 2001, but before Mr Falconio disappeared, the accused was clean shaven. Remember Ms Allan told you she had not recalled him being clean shaven for the 12 months she had known him. It is only if you are satisfied that Mr Minshull is wrong about the timing, that you could find beyond reasonable doubt that the vehicle in the truck stop is the accused’s vehicle. If it is a reasonable possibility that Mr Minshull is right, it follows that it is a reasonable possibility that the accused’s vehicle did not have the scoop type bull bar on it on 15

July at the time a Landcruiser drove into the truck stop. In that situation, it would follow it is a reasonable possibility that it is not the accused’s vehicle at the truck stop. Mr Hepi also gave evidence about the bull bar. He said he had done a lot of work on the vehicle. He was confident that the vehicle shown in the video is the accused’s vehicle and that the man in the video is the accused. I have given you a warning about your approach to Mr Hepi’s evidence and that warning applies. In addition, as I said to you in connection with Ms Lees’ evidence, it is the experience of courts that mistakes can be made and made by honest witnesses in matters of identification. That warning applies to the evidence of Mr Hepi and others who say they can positively identify the vehicle and the man. You will approach the identification evidence with caution and the warning in mind. However, if after giving the evidence particularly careful scrutiny you are satisfied that Mr Hepi is both honest and reliable in his identification of the vehicle or the man or both, you may act upon it.10 There does not appear to be any dispute that Mr Hepi was very familiar with the vehicle. He told you of the features that he could see in the video upon which he relied in reaching his opinion. He mentioned the oversized wheels with white rims, the bug deflector and the positioning of the ice and cold water in the esky on the driver’s side to which he assumed the man was going with the shopping. While Mr Hepi acknowledged that there are thousands of vehicles generally like the one in the video, he was adamant that there were not thousands like the particular vehicle driven by the accused. Ladies and gentlemen, as to the bull bar, Mr Hepi said that the bull bar on the Landcruiser, exhibit P244 — could we just have 244 up please. Now you can see the sufficient [sic] of that there. We will leave it there, thank you. Now, Mr Hepi said that is the bull bar that came off the F100. In comparing the bull bar on the vehicle in the truck stop, Mr Hepi spoke of the bull bar on the vehicle in the truck stop as a four post upright bull bar of the same construction as the bull bar that had been removed from the F100 and put onto the Landcruiser. So Mr Hepi was comparing the bull bar in the video with the bull bar from the F100.

Well, ladies and gentlemen, you know that the bull bar on the vehicle in the video has that scoop on the bottom. The bull bar in the F100 is shown on P242. Could we have P242 please? That bull bar does not have a scoop. So Mr Hepi was telling you that the bull bar in the video is the same as the one that had been on the F100. As you can see, that cannot be right. So, ladies and gentlemen, if Mr Hepi is right that as at [page 224] 14 July 2001 the accused’s Landcruiser was still wearing the bull bar from the F100, then the vehicle shown in the truck stop is not the accused’s vehicle. Thank you, that can go down now. The Crown relies on Mr Johnston. Mr Johnston spoke about the heavy duty bull bar with the bottom kicked out a little bit like a scoop and he said that this was the one that was put on to the accused’s vehicle. As to the date on which the bull bar with the scoop was fitted, Mr Johnston initially said he was not positive whether it was before or after the May 2001 trip. Then there was a bit of to-ing and fro-ing about Mr Johnston moving out of the house in which the accused was living and he was asked to take it step by step. From bank records Mr Johnston was able to say that he left Broome on 24 July 2001. He said it was two or three weeks before 24 July 2001 that he finally moved out of the accused’s home. According to Mr Johnston, it was before he finally moved out of the accused’s home that the truckie style bull bar was put on the accused’s Landcruiser. During cross-examination Mr Johnston repeated his evidence that the heavy duty bull bar had been put on before he finally left the accused’s home. When it was suggested it had been done after Mr Johnston left Broome, Mr Johnston replied: ‘No, that’s wrong’. If you accept Mr Johnston’s evidence, it will be open to you to find that as at 15 July 2001 the heavy duty bull bar with the scoop had been fitted. The accused says Mr Johnston is wrong. The Crown say he

is a reliable witness who sat and thought about his answers and he is a person who can fix the timing by reference to the date he left Broome. So, ladies and gentlemen, as to the bull bar what do you make of the evidence? Are you satisfied that the bull bar with the scoop was fitted to the accused’s vehicle before the accused travelled to South Australia in July 2001, or is it a reasonable possibility that as at 15 July 2001, the accused’s bull bar did not have the bottom scoop section and therefore, a reasonable possibility that it was not the accused’s vehicle at the truck stop? I move from the bull bar to the canopy. Ladies and gentlemen, the accused agreed that the appearance of the canopy in the truck stop video is similar to the appearance of the canopy that was on his vehicle at that time. The accused, having agreed that there was a similarity in the general appearance, I need not canvass the evidence of the other witnesses who said that there was a similarity. The accused did say, when asked whether there were any differences that the lugs down the side did not show too well, and [that] could be one difference. He agreed the windows were similar, but suggested that the windows on the vehicle in the truck stop probably came down a little longer and below the bottom zip line where the canvass runs all the way along and it looked a little loose and uneven compared with his vehicle. Well, you will recall a number of witnesses who gave the evidence that the appearance of the canopy was similar to the one they understood was on the accused’s vehicle and that included Mr O’Dore who made, on his evidence, the canopy. Ladies and gentlemen, at the moment I am concentrating on a comparison with the vehicle in the truck stop. You will appreciate that the canopy is an important issue in connection with Ms Lees’ description of the events. I will come back to the question of the type of canopy and the issue of mesh sides later when I deal with Ms Lees’ evidence about it. I will also come back to the question of the campertrailer, the feature upon which counsel for the accused placed considerable emphasis.

[page 225] The real question for you in this area with the Truck Stop video and the vehicle, is whether you are satisfied that the vehicle in the video is similar to the accused[‘s] vehicle and that there are no dissimilarities or inconsistencies. Or is it a reasonable possibility that there are inconsistencies? So they are the critical questions with the truck stop video and the vehicle. I turn then to the man in the video. I have already reminded you of the identification warning and the need for caution generally as to identification, but particularly with these poor images. Mr Hepi was the first witness who gave evidence about the image of the man. You will remember that he had seen the images in the newspaper which were taken from the Truck Stop video before he ever saw the Truck Stop video. So when it comes to the evidence of Mr Hepi about seeing the truck stop video, that evidence is given against the background that he already knew that the images in the video had already been out in the newspaper and on the television. He had already arrived at his view that it was the accused’s vehicle and the accused shown in the video. He had arrived at that view from the pictures in the paper. Having arrived at that view it is unlikely that he would change his mind when he saw the video coming to court and in court. So the mere act of identification of the video in court is not the critical evidence. The critical evidence is Mr Hepi’s claim to recognition that came earlier and it is a matter for you whether you accept that Mr Hepi did recognise the accused in the photo in the newspaper and, if he did, whether his recognition or opinion that it was the accused is both truthful and reliable. There has been a challenge to the evidence of Mr Hepi. I will read some of his evidence to you about the man in the picture. Question: You have seen the man in the picture, what can you tell us about him? — The way Brad walked, it’s his stance, looks like my shirt on him, yeah just the way he walked, the way he kept is figure. He always kept his arms out of pose so no one could get close.

What about his facial hair? — Yes, handle bar moustache on, down below the crease on your mouth. Did you notice what footwear he had on? — Thongs. What footwear would Mr Murdoch use when driving? — Thongs, he kicked them off quite regularly, he kept the floor of the car quite clean. You notice the man was wearing a cap? — Yes. A bit similar to the …? — Similar cap to … as we used. What about the length of the hair? — I didn’t really notice it in that. It didn’t stand out? — No. Did you notice the man had glasses on? — Yes. Is that consistent with Mr Murdoch? — Yes. [page 226] Ladies and gentlemen, it does not appear to be in dispute that the accused used to wear thongs while he was driving on long trips. Mister Hepi said he could see thongs on the man in the video. So with that in mind I will play exhibit P251 again for you, not right through, and I will ask that it be stopped at a point where you have a rear view of the man — and this is a point on the counter I think of 01.16. So could we play exhibit P251 and stop it at that point please. VIDEO PLAYING HIS HONOUR: Well ladies and gentlemen, it is a matter for you, having seen that video up to that point and where it is stopped now, whether you are satisfied that the man in the video was wearing thongs. That is the inference the Crown has asked you to draw from that video. If you

are satisfied that the man in the video is wearing thongs, then that is a feature of the man in the video that the Crown asks you to compare with the evidence which is that the accused used to wear thongs when he was driving long distances. Thank you, that can come down. In connection with whether it was the accused in the truck stop video, you also have the evidence of conversations between Mr Hepi and the accused. According to Mr Hepi, back in August 2001 he saw the Western Australian newspaper of 7 August 2001 which is now exhibit P249 and there are front page pictures you can see that came from the truck stop video. Mister Hepi also said he saw images on the television and they were much clearer. According to Mr Hepi, he did not immediately discuss the newspaper pictures with the accused, but later, he cannot remember whether it was on the same day as the accused returned or subsequently, the accused said to Mr Hepi that the vehicle could not be the accused’s vehicle because there was still spikes above the canopy. As you can see from the Paper, there appeared to be spikes, but you now know from the video that what appeared to be spikes were not spikes at all. Mr Hepi said that at the time of talking to the accused those pieces caused him to change his view about the vehicle. Now Mr Hepi told you that in his discussions with the accused, the accused said: ‘It wasn’t me’. As to the man and the view that Mr Hepi formed, he gave you the following evidence: What about the picture of the man? — That man, that’s Brad, the way he walks. Did you say that to him at that time? — No, because the photo wasn’t as clear as that. So did you have further discussion with him about it, and he said, it wasn’t him and you pointed out the poles at the top? — Yeah. Was there any further discussion about it at that time? — Later on he said, well, it was him because we got to discussing it, he

had to be in Alice Springs at that time, that’s the way he was going. Home? — Yeah, and yeah. He said, ‘It was a photo of me in the service station’, that that was all he was doing there was in the service station. A little later in his evidence, Mr Hepi said this conversation occurred, ‘And they got to talking about it’? — Yeah. [page 227] Go on, sorry I’ll go back to one earlier answer. Mr Hepi said he’d seen the photo and ‘It came on the telly, it was not a good picture and there is a certain way in which Bradley walks, the way he was wearing the hat to disguise his face, the whole likes of’? — We got to talking about it later because it appeared on the telly quite a bit in Broome. And you got to talking about it? — Yeah. Go on? — And then he just said, ‘Well it wasn’t me, but that was just the way he would be coming home from Sedan to Broome and he claimed that he’d used the Tanami track’. That’s what he said to you? — Yes, later on. Ladies and gentlemen, the accused has denied admitting to Mr Hepi that he was the person in the video and it is a matter for you whether you accept the evidence of Mr Hepi or not. In considering the evidence of Mr Hepi, you are entitled also to take into account the evidence of Mr O’Dore from Tropical Upholstery. I will deal later with his evidence about the making of the canopy. He told you that he saw photographs of what he thought was their work on the canopy and he spoke with the accused about it. This was his evidence in answer to questions by the prosecutor:

Did you have a conversation with Mr Murdoch about that first canopy that you built for him? — I believe I said I’d seen photographs of the car and I thought it was ours, our canopy. And what did he say? — I think he said, ‘It may have been’ because he goes up there. It may have been him in the truck stop. And Mr O’Dore confirmed the photograph he was talking about was the photo in the Truck Stop video, P252. During cross-examination, Mr O’Dore expressed doubts in the following evidence: Because I suggest to you, although you may have thought that, that that’s not something that you ever spoke with Mr Murdoch about? — I believe I said to him that I’d seen the canopy, I’d seen the car at the truck stop, it looked like ours. I’m suggesting to you, you might be mistaken about that and that you never actually spoke to Mr Murdoch about it, he never said that it could have been him. Might I be right? — I thought I did, I was convinced, I thought I had spoken to him, it’s been a long time since, and I’ve got doubts. Well, ladies and gentlemen, what do you make of Mr O’Dore’s evidence? He now has doubts. How does his evidence fit with that of Mr Hepi? Are you able to draw a conclusion beyond reasonable doubt from Mr Hepi or Mr O’Dore or both, or do you have a doubt about what was said? If you accept the evidence of Mr Hepi, and if you are satisfied that the accused admitted it was him in the photograph, it will be open to you to find that the accused was telling Mr Hepi the truth and that it was the accused in the Truck Stop video. That brings me to the evidence of Ms Allan. She also saw the newspaper photographs from — that is taken from the video. She told you that she went to the accused’s home to tell him about the phone call she had received from Northern Territory police looking

[page 228] for another truck driver. They were not looking for the accused. Until then, Ms Allan had not seen the newspaper. According to Ms Allan, the accused drew the newspaper to her attention. He told her that it could not be him because he was towing a camper-trailer and he pointed out differences between the vehicle in the video and his vehicle; and again there was reference to the little spikes. He told Ms Allan he was not the person in the picture. According to Ms Allan, the accused said his father had rung and he’d also told his father it was not him in the picture. In evidence, the accused agreed his father had rung and said the picture in the paper looked similar to the accused, but he denied that he told Ms Allan his father had rung. He denied saying anything to her like, ‘Look at this’ or that he showed Ms Allan the newspaper. He said the topic of his father ringing could have come up in the context of a few people sitting around the table talking. Ladies and gentlemen, I pause to mention a comment by Mr Wild that Broome was abuzz and the accused’s father and friends all thought it was the accused in the photograph. I direct you that you must put that comment aside. You cannot use evidence that the accused’s father or others spoke to him as evidence that they thought it was the accused in the photograph. That would be quite unfair. You have not heard from any of these people. You know nothing of their views. Whatever views they held have not been tested in cross-examination. You may have regard only to the views of the persons who have appeared before you in the witness box. I return to Ms Allan and her view. She told you that from the picture in the newspaper, she was fairly convinced that it was a picture of the accused. As to why she was of that view, Ms Allan said: Because of the way that he — his whole body posture, you know, the stance. When you know somebody, you know someone. Ms Allan was shown photographs taken from the video which are

now exhibits P252, 253 and 254.11 She said the vehicle in the photo was similar to the accused’s vehicle. As to the man in the photograph, Ms Allan said she believes it is a photograph of the accused. Having expressed that view, Ms Allan gave the following evidence: Is there anything in particular that makes you say that? — With what he’s wearing, the way he holds himself, the hat. If you look at the next one please — and this was P254 showing a rear view — What do you say about the length of the hair shown in that picture in relation to Mr Murdoch? — I’m not sure. It just looks like him to me at the time. Well, again ladies and gentlemen, it is not the identification from the photos in court that is of critical importance because Ms Allan was aware that these were the same as the photographs she had seen in the newspaper. It was suggested to Ms Allan that she might be wrong as to whether it is the accused in the photograph and I will read her evidence about that. Question: Now, that may not be Mr Murdoch in those photographs, do you agree with that? — Well, in my opinion, it is him. [page 229] But you could be wrong about that, couldn’t you? — Anybody could be wrong. I’m not having a go at you, as such, Ms Allan, but they are not all that clear, the photographs themselves are not all that clear, are they? — No, I agree with that. Well, ladies and gentlemen, what do you make of that evidence? In essence, counsel for the accused suggested Ms Allan and others may have exaggerated and you cannot rely on their evidence even if they

believe it is the accused. Because of the poor quality of the images, they could be mistaken. Mr Algie suggested that, at best, all they can say is that there is a similarity in overall appearance. On the other hand, Mr Wild put to you that these were people who knew the accused very well. They knew his posture, manner of walking and mannerisms very well. Mr Wild suggested that Ms Allan has obviously been very fond of the accused and that sufficient is seen in the video to enable friends of the accused to recognise him. Well, the other person who knew the accused was Mr Johnston. He told you about the man walking into the shop and he was asked: What can you say about that? — Yeah, it looks like Brad. What looks like Brad? — Just the way he carries himself and just the way — yeah. What do you mean by the way he carries himself, Mr Johnston? — The way he walked and that and yeah. He was cross-examined. It was put to him that it might not be Mr Murdoch and Mr Johnstone replied: ‘I think it is’. Question: But you might be wrong, mightn’t you? — Well, it’s a possibility, yeah. Mr Johnston went on to say that the top on the man in the video looked similar to the top of the accused and he referred to it as a grey woollen top. He said the cap on the man in the video looked like the Pennzoil cap that the accused owned. I mentioned a moment ago Ms Allan also spoke of what the accused was wearing. The accused says to you that these witnesses are wrong and are part of a group giving evidence against him. The Crown says they are honest and reliable. Ladies and gentlemen, the other witness who said he spoke with the accused about the pictures in the newspaper of the man was Mr Duthie. Apparently, the photos had been put up in the roadhouse and delis around Broome. When asked what discussion he had with the

accused about the photographs, Mr Duthie gave you this evidence: Just about the particular photos and the person they had a photo of and of a vehicle which was there and Brad said: ‘It does look like me’, but that was basically it. As to whether the accused also said it was not him in the photograph, Mr Duthie said: I can’t honestly remember. He said he never did it but he said it does look like him, that’s for sure. [page 230] Ladies and gentlemen, the evidence of Mr Duthie was not challenged in cross-examination. If you accept that evidence then the accused admitted to Mr Duthie that the man in the photograph looked like him. Does that statement, if you accept it was made, reflect the accused’s own state of mind? If the accused thought it looked like himself it would be open to you to use that fact as evidence that the man in the truck stop bore an appearance similar to the appearance of the accused. 4.23

In the next section, the Chief Justice deals with the expert evidence given by Ringrose and Sutisno. Ringrose calculated the height of the man in the footage, as did Prof Henneberg. Ringrose’s calculation did not exclude Murdoch, although both the evidence of Head and of Henneberg suggested that the person on the CCTV footage was shorter than Murdoch. This evidence was of limited value because, at best, it was a piece of weak circumstantial evidence because of the room for error in the calculations.

HIS HONOUR: Well ladies and gentlemen, in addition to witnesses who knew the accused, you have evidence from two expert witnesses called by the Crown who did not know the accused and who worked solely from the content of the video. They are Mr Ringrose and Dr Sutisno.

I have already mentioned Mr Ringrose in the context of the calculation of the size of the canopy. His three-dimensional models in terms of the man are exhibit P283 and the summary of his results is found in P284. The range that Mr Ringrose reported was 1846 mm– 1965 mm. That is 72.68 in–77.36 in. It is a matter for you whether you are satisfied that Mr Ringrose has given reliable evidence about that range. You are able to compare it with the accused’s height of 1960 mm. If you accept the evidence of Mr Ringrose, what impact does that have upon the reliability of Mr Head’s evidence about height or do you have a doubt about the reliability of Mr Ringrose. There is one other factor arising out of the evidence of Mr Ringrose and his estimate of the height. The Crown put to you that this is a range based upon the height of a man in a video in the stooped position. The accused also stoops, says the Crown, and the Crown also put to you that the height of 196 cm is based upon him standing upright. In his normal stooped stance, his height would be less and well within the range given by Mr Ringrose. Ladies and gentlemen, as to the height, you also had evidence from Prof Henneberg. He said the Australian average is about 175 cm12 and large is one standard division above that average, being 6 or 7 cm.13 He gave you the view that the man was medium to large. So he was giving a range in the order of 182–185 cm. Professor Henneberg based that on CCTV images and on the height of the measuring bar on the door to the truck stop shop. He assumed the top of the bar was 190 cm and the bottom 180 cm above the floor. He said the person of interest passed through the door with the top of his head somewhere between the bottom and the middle of the top of the bar at about 180. [page 231] Well, ladies and gentlemen, you can make your own assessment of that. Professor Henneberg acknowledged there were obviously issues of parallax and camera angle. As to the height of that measuring bar, Mr

Ringrose took measurements and he said the top was 1853 mm above the floor tiles and the bottom was 1642 mm. Ladies and gentlemen, you have heard submissions about Mr Ringrose’s work and about his methodology and the problems with the axis, each of them. Counsel for the accused put to you that if anything it is likely to be an overstatement. Mr Ringrose, on the other hand, said he was not comfortable with saying the program was more likely to have overstated the height from image 2 than to have understated it. If you were satisfied that Mr Ringrose has given accurate and reliable evidence, then you have a person of the height that is within the range that does not exclude the accused as another piece of circumstantial evidence. On the other hand, if you have a doubt about the reliability of the evidence of Mr Ringrose, and if you think the evidence of Mr Head is a reasonable possibility, then you have a person who is not as tall as the accused. I am about to turn to the evidence of Dr Sutisno, ladies and gentlemen, and it might be a good time to take a 10 minute break. Thank you. 4.24

During the adjournment and in the absence of the jury, Wild raised with the Chief Justice the difference between recognition evidence and identification evidence. As can be seen by the exchange between his Honour and counsel below, his Honour decided to take a cautious approach, deliberately favouring the accused by not instructing the jury to consider the evidence of Murdoch’s friends and acquaintances as recognition evidence. Although his Honour does not explain why, the reason is probably because of the poor quality of the photos and the CCTV footage, and in the case of Hepi, because Hepi is a witness with a purpose of his own to be served, and for that, and other reasons, he falls into the category of a potentially unreliable witness. I have included this part of the transcript for completeness.

HIS HONOUR: I have not said it, but I am assuming that if counsel have

any concerns whatsoever about my dealing with the evidence or the facts or the law that counsel will raise it at the break, immediately after that concern arises. MR WILD: Thank you, your Honour. There’s just one matter. I wonder if your Honour has given regard to the fact that recognition identification is a different category to the other kind. HIS HONOUR: I have, Mr Wild, and I framed my directions knowing that there is a difference, but I frame my directions deliberately in the way I did. MR WILD: I wasn’t sure, with respect, you had in respect of — when you were introducing Mr Hepi’s evidence on this point. HIS HONOUR: What are you suggesting? MR WILD: I thought you just put it in the same class as all identification. In other words, it requires a warning of great significance. HIS HONOUR: I did and I did that deliberately. [page 232] MR WILD: I understand why in respect of Mr Hepi and I accept that but in respect of Ms Allan, for example, and Mr Johnston, they are in different categories. HIS HONOUR: Well no, Mr Wild, I did frame the directions deliberately. I’m erring on the side of caution in doing so. MR WILD: If your Honour pleases. HIS HONOUR: Thank you. We’ll adjourn until midday. ADJOURNED 4.25

In the following section, the Chief Justice deals with the evidence relating to facial and body mapping.

HIS HONOUR: Ladies and gentlemen, I come to Dr Sutisno. She is

presented to you by the Crown as an expert in the field of what she described as facial and body mapping. Professor Henneberg called it photo comparison. That was a term that Dr Sutisno told you was used when it originally was developed. Professor Henneberg was critical of Dr Sutisno’s evidence because in his view the images are of such poor quality that the features she discussed cannot be seen and conclusions cannot be drawn. Doctor Sutisno explained the basis upon which she arrived at her opinion. You have most of the material upon which she relied and you are able to make your own examination of the various exhibits. You will remember that Dr Sutisno explained that the photoboards are enlargements and they are not as clear as the images that she extracted from the Truck Stop video. She recommended that you freeze a frame that you wish to examine from the Truck Stop video and look at it with the assistance of a magnifying glass. Doctor Sutisno identified the various factors which she took into account in arriving at her view. She told you it is not just one factor but a combination of factors. And by way of summary, and it is a brief summary only, the following were the primary features upon which Dr Sutisno relied. Elliptical — that is oval shaped face. Narrow with large middle to lower facial height. The sunken or receding region — that is the alviola or upper lip, commonly due to a loss of upper frontal teeth. The cheek bones which have a project towards the front and a slight to medium to the left or lateral side. The cheek bones are not projecting forward entirely because there is a retreating or sloping back. The large mandibular symphysis which Dr Sutisno described as the region in the mid line covering the actual chin area. The mandibular prognathism which was slightly present, meaning the slightly protruding forward of the region of the chin. The mouth area in which the feltrum height, that is the height from the lower tip of the nose to the top of the lip, is quite large. The down turn of the corners of the mouth which is a common

feature of individuals with missing teeth. The very thin bottom lip. [page 233] The large ears of large height and large projection. The distinctive hairline pattern. The head shape itself — which Dr Sutisno described as quite high, of medium length and wide from side to side. The neck which is short in length or height and of medium width. The cervical spine extending forward and producing the forward projection of the head. The forward curving of the upper back due to increased flexion of the upper thoracic spine. Meaning that due to the forward curvature of the upper thoracic spine there is a projection of the chest and the fatness from the chest to the abdominal region. Squarish shoulders that are high and broad. Long torso, long arms, long legs. The flat back posture. The gait — which she said is a distinctive walking pattern of side bending in the torso with corresponding step and the sway of arms. There was also the feature of the feet pointing outwards. The habitual placement of the hand on the hip whilst standing. That is, the right hand on the hip while laterally flexing the torso or side bending the torso to the left. Right handedness. By way of confirmation, Dr Sutisno then undertook the photographic superimposition. You have heard the cross-examination of Dr Sutisno about the individual features on which she relied. By way of example she was unable to give you statistics as to how many Caucasians possess the

individual features. Counsel pointed out through cross-examination that individual features may appear on a lot of people. You heard Dr Sutisno cross-examined about the distinctions she drew between morphological differences and temporary changes such as changes in facial expression or general appearance and posture. You will recall the counsel for the accused suggested to Dr Sutisno and to you that the images from the Truck Stop video are just too vague and blurred to be of any use in this type of comparison. Doctor Sutisno disagreed and expressed the view that her experience and training put her in a better position to make these types of assessments. In his address to you, Mr Algie urged that you should treat the evidence of Dr Sutisno with great caution and skepticism. He said it is always wise to be cautious when people say they cannot be wrong and people who justify their opinions by saying, ‘I can see but you may not be able to see because my eyes are trained and yours are not’. Counsel put to you that if you cannot see what Dr Sutisno is talking about, then there is a very real risk that the feature is not there. Counsel suggested that unique identifiers relied upon Dr Sutisno either were not visible or were not unique features at all. Mr Algie urged that you cannot rely on Dr Sutisno’s opinion that what appear to be differences can be explained as temporary changes. In support of the suggestion that the images are not of sufficient quality to enable a comparison to be safely undertaken, the accused called Professors Spring and Henneberg. I have already mentioned Professor Spring. He was not prepared to say that the man in the video had a moustache. Professor Henneberg is undoubtedly a highly experienced anthropological scientist. He told you he started learning how to identify individuals from the analysis of their anatomical features in the 1970s. And that into the ‘80s, he was carrying out comparisons for the purposes of paternity analyses. The professor explained that this involved an [page 234]

anatomical procedure that classifies the degree of expression of each feature in turn and compresses them to frequencies of those features in the population and calculates probabilities that a child received particular features from a particular male person. From the 1980s onwards, Professor Henneberg has applied the same principles to the analyses of images from CCTV systems and photographs by undertaking analysis of images to be compared anatomically to a suspect. While disagreeing very strongly with the opinions expressed by Dr Sutisno, Professor Henneberg acknowledged in cross-examination that although Dr Sutisno spoke of facial and body mapping, she was performing the same work that he did by comparing images. Professor Henneberg said that in her descriptions, Dr Sutisno uses the same basic principles in her approach to comparing images feature by feature. And to that extent, it is the same procedure he follows. Ladies and gentlemen, Professor Henneberg explained what you might think is a matter of commonsense. Some features are very common and individually are of little weight in a comparison. As also is a matter of commonsense, Professor Henneberg regarded the frequency of a particular feature in the relevant population as significant. In Professor Henneberg’s view, the images are so poor that the only conclusions that can be drawn is that they show a man of a lean body build and of a body size that is medium to large, but not excessively large. The professor concluded from the frame sequences that there is nothing peculiar or unusual in the walking or other movements of the person depicted. He said there was insufficient information to assess the facial features. In Professor Henneberg’s opinion, the only thing that could be discerned is that the man has a face which is light in colour and some form of moustache. You will also recall that Professor Henneberg expressed the opinion that the person in the CCTV differed in body build and overall size from the stature of the accused. I think, if I remember correctly, that Professor Henneberg acknowledged that his reasoning in that area was weak.

Professor Henneberg also said he was unable to see how the CCTV images could be used to access the anatomical detail about which Dr Sutisno spoke. He doubted Dr Sutisno’s anatomical knowledge because of what he perceived were incorrect uses in several of anatomical terminologies. He was critical of the grades of opinion given by Dr Sutisno. He suggested they were contrary to scientific logic. He disagreed it could ever be said with 100% certainty that a person in a CCTV image was a particular person. I think the highest he got was something in the order of 98% as a matter of principle. Ladies and gentlemen, in connection with Professor Henneberg’s evidence, you will recall that he enlarged photographs of himself for the purposes of a superimposition exercise. During cross-examination he denied that it was perfectly obvious that the superimposition was not of the man in the truck stop. He disagreed with the propositions that the images of the accused matched perfectly upon superimposition. Well, you have heard counsel about that, and you can conduct the superimposition exercises yourself and draw your own conclusions. You will recall that Dr Sutisno said she used superimposition only as a means of confirmation or otherwise of her analysis by way of comparison of morphological features. Professor Henneberg acknowledged that, unlike Dr Sutisno who carried out further enhancement of the video, he used the original images. He was not familiar with the video wave software used by Dr Sutisno, but he was familiar with the enlargement by Adobe PhotoShop. Professor Henneberg did not use a magnifying glass. [page 235] Well, ladies and gentlemen, you will have reached your own impressions and conclusions about the evidence of those experts and about them as witnesses. You should give careful consideration to the criticisms advanced by Professor Henneberg. Importantly, did Dr Sutisno impress you as a careful and reliable scientist and witness, or to use an expression that is often used in this context, is it reasonably

possible that she was pushing the boundaries of science too far? Is it reasonably possible that she was drawing conclusions from inadequate material?14 I have already reminded you of the essential criticisms levelled by Mr Algie at the evidence of Dr Sutisno. On the other hand, Mr Wild put to you that Dr Sutisno was, from the point of view of Professor Henneberg, ‘The new kid on the block’, who was viewed with unjustified suspicion. Mr Wild pointed out that Dr Sutisno uses the same methods of feature by feature comparison with updated equipment. He suggested that she was a careful scientist who comprehensively explained her methods to you. On the other hand, said Mr Wild, Professor Henneberg was too dismissive of Dr Sutisno and was in reality quite unhelpful. Mr Wild used the example of Professor Henneberg not being able to say if the accused has a flat back posture. Ladies and gentlemen, if you are satisfied that the evidence of Dr Sutisno is reliable such that you are satisfied that her opinion is correct and it was the accused shown in the Truck Stop video, that would lead you to a conclusion that the accused was in Alice Springs in the early hours of 15 July 2001. From that conclusion, the Crown ask you to draw the inference that the accused had the opportunity of being at Barrow Creek at the time the Kombi Van was pulled over and Ms Lees was attacked. What then if you have a doubt about the ultimate opinion of Dr Sutisno? If you have a doubt about that opinion, then you will put that opinion aside. However, even if you have a doubt about Dr Sutisno’s opinion, it does not necessarily follow that you would put aside entirely all of her evidence. Even if you have a doubt about Dr Sutisno’s ultimate opinion, the question remains whether her evidence is of any assistance to you by way of a general comparison of the features of the man in the truck stop video with the features of the accused. It would be open to you to have regard to Dr Sutisno’s evidence of the comparison of the various features in deciding whether you are satisfied that there is a significant similarity between the features of the accused and the features of the man in the video.15 Whether you are prepared to rely upon the evidence of Dr Sutisno

about those features that she said she could discern will obviously depend upon whether you accept her evidence in preference to that of Professor Henneberg. If it reasonably possible that Professor Henneberg is right and that a useful comparison cannot be undertaken because of the poor quality of the images, then the opinion of Dr Sutisno about individual [page 236] features must also be put aside. It is only if you accept the evidence of Dr Sutisno that she was able to discern the individual features and compare them that you would be able to rely upon her evidence.16 Doctor Sutisno also told you she was unable to identify any dissimilarities and you will compare that evidence with the view of Professor Henneberg. Do you accept the evidence of Dr Sutisno that there were no dissimilarities? Do you accept her evidence as to the existence of a number of similarities? If you do, again, that would amount to circumstantial evidence that you could take into account in deciding whether you were satisfied that the person in the Truck Stop video is the accused. Ladies and gentlemen, the other evidence to which you may also have regard in considering whether there may be dissimilarities or whether there are significant similarities in appearances comes from Mr Hepi, Ms Allan and Mr Johnston. Like Dr Sutisno, if you are not satisfied to rely upon their ultimate opinion, it does not mean that necessarily you must put aside entirely their evidence about the man in the video. They all told you that there were similarities between the man in the video and the accused. I have already mentioned Mr Hepi’s evidence that the man in the video walked the way the accused walk. He said the stance of the man was the same and the way he kept his figure. He also spoke of the moustache, the cap and the glasses. Ms Allan also spoke of the similarity in what she called the whole body posture. She spoke about what the man in the video was wearing and the way he held himself, as

well as the hat. Mr Johnston also described similarities between the man in the video and the accused. As to what it was, Mr Johnston replied: ‘Just the way he carries himself and just the way, yeah’. He went on to add that it was the way the person walked. Well, ladies and gentlemen, it is a matter for you. If you accept the evidence of those three witnesses, are you able to discern a common theme in those witness’ evidence about the similarities between the man in the video and the accused. Do you discern a common theme about body posture, the way the man carries himself in the video and the way the man walked. If you accept their evidence about those similarities, then the existence of those similarities would be a piece of circumstantial evidence which you could take into account in deciding whether you were satisfied that the person in the video is the accused. On the other hand, if you are not satisfied of those similarities, then again that evidence would be put aside. If you are of the view that it is possible that there are dissimilarities, then that would be a factor weighing against a conclusion that the man in the video is the accused. Finally, ladies and gentlemen, in connection with similarities or dissimilarities, you heard the evidence of a number of witnesses about the clothing that the accused often wore. The Crown put to you that this was a man who regularly wore a checked shirt, flannelette shirt and that this is a significant feature which comes through from the evidence also of Ms Lees about the man who attacked her. There was also reference to caps, that is, baseball type caps. You have heard evidence from Mr Hepi, I think Mr Johnston and certainly Ms Allan about a Pennzoil cap, an example of which is exhibit P247. The accused said that he had a cap like that for about one and a half days or maybe two days. He said he had hats in the car, but not baseball caps such as the type seen on the man in the truck stop. [page 237] Well, ladies and gentlemen, it is a matter for you whether you accept

the evidence of the prosecution witnesses or whether the evidence of the accused causes you to have a doubt about that evidence. In the context of the question of the cap you would be entitled to bear in mind the evidence of Mr Duthie, if you accept it, that the accused said the man in the photo looked like him. Well, ladies and gentlemen, if from a consideration of all the evidence you are satisfied it was the accused and his vehicle at the truck stop, it will follow that you are satisfied that the accused has not been truthful with you and others and he has falsely denied being at the truck stop in the early hours of 15 July 2001. If you reach that view that the accused has not been truthful with you about this matter, then I need to give you directions about the proper use of a finding that the accused has not been truthful with you. 4.26

What now follows is what is called a ‘lies direction’, or an ‘Edwards direction’. The direction follows the decision of the High Court in Edwards v R.17 The form of the direction which is called for depends upon whether the lie is being used as the only reason for concluding that the accused is guilty or it is an indispensable link in a chain of reasoning leading to a finding of guilt. In either situation, the lie must be proven to be a deliberate lie springing from a consciousness of guilt. If this is the only reason for concluding guilt, there must be proof beyond reasonable doubt. If the lie is being used as a piece of circumstantial evidence to be taken into account as part of the whole material relied upon to reach a finding of guilt, the lie does not have to be proved to any particular standard. The direction given in this case treats the possible lie as a piece of this kind of circumstantial evidence only.

HIS HONOUR: Speaking generally, as a matter of common sense, if you are satisfied that any witness, including the accused, has been untruthful with you or with other people about a particular matter, the fact that the witness has told an untruth might reflect adversely upon their credibility as a witness. Whether the fact that a witness has been untruthful with you or others, reflects adversely upon the credibility of

the witness is a matter for you to determine bearing in mind the matter about which the witness has been untruthful and any explanation for that untruth. It might simply reflect adversely on the credit of the witness in respect of the particular matter about which the untruth was told, or it might reflect more widely and generally upon the witness’ credibility. Naturally if a witness has been prepared to be untruthful with you about a particular issue, it raised the possibility that the witness might be prepared to be untruthful about other matters. So applying this to the accused, if on any particular issue you are satisfied that the accused has been untruthful with you, it is a matter for you whether the fact that he has been untruthful reflects adversely upon his credibility generally and, if so, to what extent. And the same applies to Crown witnesses. However, in addition, applying to Crown witnesses only, if it is a reasonable possibility that a Crown witness has been untruthful, you will take that into account in deciding whether there is a possibility that the Crown witness has been untruthful [page 238] about other matters. As you can see this goes back to the burden of proof. It is only if you are satisfied that the accused has been untruthful that you may take that into account. On the other hand, if it is a reasonable possibility that a Crown witness has been untruthful then you should take that into account with respect to the Crown witness. Now with respect to the accused and being untruthful about being at the Truck Stop. If you are satisfied that the accused was untruthful when he denied to you and others that he was at the Truck Stop, there is additional use that you may make of that fact that the accused has been untruthful. If you are satisfied that the accused has deliberately lied about being at the truck stop, and if you are satisfied that the accused told the lie because he knew that the truth would implicate him in the murder of Peter Falconio, you may use that lie as some evidence of a consciousness of guilt on the part of the accused. If you are

satisfied that the accused disclosed in this way a consciousness of guilt, it is another piece of circumstantial evidence that on its own cannot prove guilt, but is to be considered in conjunction with the rest of the proven facts. In giving you this direction, I must emphasise some matters. First, you must be satisfied that the lie was deliberate. Second, you must be satisfied that the lie relates to a material issue in the case. You might think there is little doubt that a lie by the accused as to whether he was at the truck stop is material to the case. Third, and importantly, it is only if the accused told the lie because he perceived the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. It must be a lie which an innocent person would not tell. You will quickly appreciate that innocent people tell lies for a number of reasons, including panic, or perhaps because they think that even though they are innocent, the truth might wrongly implicate them in the offence. Before you can use the evidence of the lie about the Truck Stop as evidence of a consciousness of guilt on the part of the accused, you must reject all other possible reasons and be satisfied that the telling of the lie is explicable only on the basis that the accused knew the truth would implicate him in the offences. That is, that the accused was conscious that if he told the truth, the truth would convict him. This direction, ladies and gentlemen, only applies to a lie by the accused, if you find that he lied, about being at the Truck Stop. If you find the accused has lied to you or anyone else about other matters, those lies about other matters cannot be used as evidence of a consciousness of guilt. Other lies may, however, be used by you, if you see fit, as reflecting adversely upon the accused’s credibility as a witness. I stress that you may only use a lie as reflecting adversely upon the accused’s credibility if you are satisfied that he deliberately told a lie. Well, are you satisfied that the accused lied about being at the Truck Stop? If you are so satisfied, are you satisfied to reject all innocent explanations? Are you satisfied that the lie is explicable only on the basis that the accused knew the truth would implicate him in the crime, that is, that he lied because of a consciousness of guilt?

Well, ladies and gentlemen, for example, you must carefully consider whether it is reasonably possible that the accused lied because he was afraid that he would be falsely implicated. On the other hand, the Crown put to you that with the exception of Mr Hepi, right from the outset, before he was a suspect and before he might have had reason to lie if innocent, the accused displayed a consciousness of guilt by falsely denying that he was at the truck stop. Well, ladies and gentlemen, that brings me to the conclusion of my remarks about the truck stop. I am about to turn to the second category that I mentioned earlier of the circumstantial evidence, and that is the vehicle at the scene. We will do that after lunch at 2 o’clock. [page 239] LUNCHEON ADJOURNMENT HIS HONOUR: Ladies and gentlemen, just before lunch I was talking to you about a lie, if you find it to be a lie by the accused to you and to others about whether he is in the Truck Stop video and I mentioned to you the necessity of excluding all other reasonable explanations. In that context you should bear in mind of course, that the accused had a reason for not wanting to be involved with police or with any investigation of any sort because of course he was running the drugs. So you need to consider whether it is reasonably possible that he lied to his friends and acquaintances in Broome about that matter for that reason. And similarly, when it comes to the lie to you, of course, you should consider whether it is reasonably possible that having told the lie earlier to his friends or acquaintances, the reason that he’s lied is simply he did not want to admit having lied and has just continued it with you. 4.27

His Honour next deals with the question of whether the vehicle seen by the witnesses Brown and Haines was likely to have been the accused’s vehicle. If so, it is another piece of circumstantial evidence

pointing to the guilt of the accused. HIS HONOUR: Now, I turn then to the vehicle at the scene near Barrow Creek, and I am here addressing the evidence of Mrs Brown and Mr Haines and whether the vehicle they saw could have been the accused[’s] vehicle. Mrs Brown said she only got a glimpse of the side. She told you, ‘It was big and white and sort of like a Landcruiser or whatever.’ In crossexamination Mrs Brown agreed it looked like ‘A Hilux’. Well, it’s a matter for you to make what you will of that evidence. Nobody asked Mrs Brown to specifically identify what she meant by a Toyota Landcruiser or a Toyota Hilux and what differences she understood there were between those two vehicles. Mr Haines initially said it was a white Landcruiser, a ute, tray top with a greenish canopy on the back. In cross-examination Mr Haines said it was not a Troop Carrier, but he did not know what model Toyota it was. In evidence at the preliminary examination Mr Haines said he had a Troop Carrier and a Ford Courier in mind. Now he was not sure, but a Troop Carrier does not have a rear canopy. Well ladies and gentlemen, as always it is a matter for you what you make of that evidence. You might think there is considerable doubt in the mind of Mr Haines concerning the precise make of the vehicle, but are you satisfied that he was accurate when he described it as a ute or a tray top and are you satisfied that he was accurate when he said it had a greenish canopy on the back? Or does his evidence tend to support a view that the four-wheel drive in the vicinity was a different vehicle from the accused? Or is his evidence too vague or uncertain to be of any assistance? 4.28

Next, the Chief Justice deals with an important aspect of the identification evidence of Lees, by comparing her description of her attacker with the accused’s actual appearance at that time. Lees’ description was also represented by the comfit, which his Honour also deals with.

[page 240] HIS HONOUR: I move to the third category, this is the physical characteristics of the offender compared with the characteristics of the accused as at 14 July 2001. In drawing your attention to this evidence, I am leaving aside the positive identification of the accused by Ms Lees. That is a separate question. Assuming you are satisfied that someone attacked Ms Lees and Mr Falconio, I am addressing these remarks to the evidence of the characteristics of the offender as recalled by Ms Lees compared with the characteristics of the accused as at 14 July 2001. Are they consistent or inconsistent or is the evidence too vague or uncertain to be of any assistance? Ms Lees said the man, was taller than Peter — Peter was 5’11” — and she said that when she saw the man at the rear of the Kombi, he appeared to be hunched and stooping. Ms Lees description of the man was as follows: A tall man aged 45 ish, an oval face with — I think I described his hair as straggly hair — he had a baseball cap, but his hair came out from underneath. There was lots of grey in his hair, there was grey flecks in his eyebrows and in his moustache which I described earlier as a Mexican moustache which was drooped, came down. His eyes seemed — were quite — I described them as droopy. I could see lines on his face and lots of lines underneath his eyes. I gave a description of the clothes he was wearing, with the check shirt, a dark T-shirt underneath, heavy duty trousers, possibly jeans. Well, the accused is now aged 47. How does that description fit with what you know of his appearance in July 2001? Is the appearance of the offender described by Ms Lees consistent or inconsistent with the appearance of the accused? The Crown put to you that there was a remarkable similarity, right down to the check shirt and baseball cap. Mister Algie put to you that the best test was to look at the comfit which he suggested does not resemble the accused.

Much has been said about the comfit and I need not repeat Counsel’s submissions. It is, of course, appropriate for you to bear in mind the circumstances in which the comfit was put together. If you accept the evidence of Ms Lees, she had not slept since the evening of Friday 13 July into the morning of Saturday 14 July. She had driven from Alice Springs to Ti Tree and had been a passenger from Ti Tree to Barrow Creek. She had been through the events she has described and was taken to Barrow Creek where she was obliged to wait for the police through the early hours of Sunday 15 July. Once the police arrived, she spoke to police in Barrow Creek and ended up giving two statements. Because the computer did not save the first one, she had to give a second statement quickly which was taken down by an officer in handwriting. That was an 18-page statement. Ms Lees said that all of that took a long time. Later on Sunday 15 July 2001, Ms Lees was taken to Alice Springs. At 7.43 pm, an interview commenced which involved many tapes and went on for hours. At the end of the interview, there was something like 136 pages of transcript. It was while giving this statement, not having had any sleep since Friday night, that Ms Lees was going backwards and forwards, trying to fix the comfit picture. In addition, Ms Lees told you she was never happy about the hair on the comfit. She said she was always a bit confused about the hair because the man was wearing a cap. In connection with the comfit, you also have the evidence of the police officer involved, Detective Isobel Cummins. She explained the procedure to you and you have her comfit request and her notes, exhibit P274. The comfit book from which the examples were drawn is exhibit P37. [page 241] Ms Cummins confirmed that Ms Lees had been without sleep for two days and that the interview was taking place at the time she was getting instructions for the comfit. She would interrupt the interview to get her

instructions. The process commenced at about 7.43 pm and finished at about 11.20 pm. As Ms Lees was driven back to her accommodation, she was taken past some car yards. Ms Cummins thought Ms Lees would have reached her accommodation at about midnight. The next morning Ms Lees was picked up at about 8.00 am and the process continued, that is the interview and the comfit process. Ms. Cummins thought the comfit was finished shortly after midday. Ms Cummins told you that Ms Lees was given as much time as she needed to get it right. It was explained to Ms Lees that she had time and could make changes. Ms Lees told you that she felt she was not given as much time as she would have liked. She was aware of the importance of getting an image to the public as soon as possible. In you[r] view, ladies and gentlemen, how does Ms Lees’ comfit compare with other evidence as to the accused’s appearance at the time? Mister Algie suggested to you that it points to someone other than the accused who never had long hair or a part. Mister Wild, on the other hand, invited you to remove the long hair in your mind and suggested you will see a resemblance to the accused right down to the deep set eyes. Ladies and gentlemen, in connection with the evidence of Ms Cummins and the creation of the comfit, Mr Wild drew your attention to the comfit request, Exhibit P274. He highlighted the description recorded by Ms Cummins as given to her by Ms Lees. This document became an exhibit because it provides the context in which the comfit was prepared. It was the starting point and you may use it to assist you in understanding how the comfit was created. You may not, however, use it as Ms Lees’ evidence of the description. Her evidence of the description is what she told you. I move then to evidence concerning the accused’s appearance in July 2001. Once you arrive at a view as to the accused’s actual appearance at that time, you are in a position to compare it with Ms Lees’ description of the man in the four-wheel drive and the comfit. Mr Hepi told you that in July 2001, before the accused returned from the trip, he had longish hair, not to the collar, but longer than the lobe

of the ear. Mr Hepi also spoke of a long handlebar moustache reaching down below the creases of the mouth line. Mr Hepi told you that depending on the weather the accused generally wore thongs, singlets, shorts or a flannel or swansdown shirt. In cooler weather he would wear a jumper. It was Mr Hepi who told you about keeping caps in the car, which he said were put on when they went into roadhouses. He said the accused owned a Mariner peaked cap, although Mr Hepi agreed it could have been another brand of marine motor, and a cap connected to one of the oils they used in the car. He said they used Pennzoil in their motor vehicles and Mr Murdoch had a cap like the Pennzoil cap, exhibit P247. Both Ms Allan and Mr Johnston also spoke of the Pennzoil cap. As I have already mentioned, the accused said he owned a Pennzoil cap for one and a half to two days and did not have a baseball type cap in the vehicle. Mr Allan also told you about the accused’s bushy moustache, the handlebar type moustache. She indicated the size of the moustache extending below the mouth, almost to the line of the jaw. And you might remember the accused agreed that he had that type of moustache and again when he demonstrated his moustache you might recall he demonstrated down almost to the line of the jaw. [page 242] Ms Allan described the accused’s hair as short and to the nape of the neck. Cross-examined about the accused’s hair, Ms Allan agreed he always had short hair. When it was put to her that it was in the style of a crew cut, Ms Allan responded: ‘No, real close shave to the head, no’. She then gave the following evidence: But the style, if I can use that word, the style was a crew cut; do you see what I mean? — Fairly long hair though. It was either like a number one, a number two or a number three, depending

on when the last time it had been cut. Do you agree with that? — It wasn’t a number one after he’d come back from this particular trip. Would you agree that normally it was a number two or a number three crew cut styled haircut? — I don’t know how to describe it exactly. You know, like he had hair, put it that way. Let’s put it this way then, he certainly never had shoulder length hair or long hair, did he? — No. And you never saw him with hair such that he had a part in the middle or anything like that, did he? — No. Mr Duthie told you that from January 2001 onwards the accused’s weight changed and it went up and down a little and the photograph taken at the beach camp, exhibit P248, which you know was taken during that period 25–27 July 2001, and in particular in the third photograph, Mr Duthie said the accused looked a little skinnier than usual. Mr Duthie also said that the accused always had a moustache or a beard, but he agreed the facial hair varied. As to the accused’s head hair, he said it was always a number one or number two. He also said the accused’s hair grew fairly quickly. Mr Kotz, Mr Sandler and Mr Mills all said the accused always had short hair. Finally, as to the general appearance of the accused in mid 2001, I remind you of the evidence of Mr Johnston and Ms McPhail to which I have already referred. Well, ladies and gentlemen, what is your view as to whether the description by Ms Lees of the man in the four-wheel drive and the comfit are consistent or inconsistent with the appearance of the accused at that time. I think it is fair to say that counsel for the accused relied heavily on the difference between the accused’s hair and the hair in the comfit, and in particular the part of the hair in the comfit, as demonstrating a significant inconsistency. On the other hand Mr Wild invited you to ignore the hair, picture the comfit with short hair and look at the rest of the description which he said bore a remarkable resemblance to the accused.

4.29

In the following lengthy passages a similar exercise is thoroughly and carefully undertaken by comparing Lees’ description of the vehicle with the evidence about Murdoch’s vehicle at that time. This includes the drawings prepared by Stagg and the use which can be made of them and what Lees told Stagg and Ms Elizabeth Andrew. As part of this exercise, his Honour summarises the

[page 243] evidence relating to the canopy and whether or not the canopy had steel mesh sides, and whether or not Murdoch was trailing a campertrailer. HIS HONOUR: I turn then to the next category. This is comparing the features of the offender’s vehicle, as recalled by Ms Lees, with the features of the accused’s vehicle as at 14 July 2001. Ms Lees’ first sighting of the vehicle was as it pulled alongside adjacent to them. She said from that position she saw it was a white four-wheel drive, brightly lit up against the dark of the night. She saw a bull bar or a roo bar which she said was all very bright and it lit up against the dark of the night. She saw a bull bar or a roo bar which she said was all very bright, and it could have been silver or chrome or her impression was that it was silver or chrome [which] could have been due to the brightness of the light. During cross-examination Ms Lees said she did not see the bull bar again after the four-wheel drive stopped behind the Kombi. So if you accept her evidence, her observation of the bull bar was limited to the time when the vehicle pulled adjacent to them on the highway and was alongside them. Ms Lees agreed she told the police on Sunday 15 July that the bull bar was a silver chrome bull bar and that she held that belief at that time. She also agreed that she spoke of the bull bar as being a chunky

roo bar or bull bar. When it was put to Ms Lees that this was her observation at the time, Ms Lees gave this evidence: I couldn’t say if it was my observation, or a feeling that I had from the lighting of the — coming from the four-wheel drive headlights — because it was again such a black night, it was pitch black, so everything seemed to be bright and white and shiny in the headlights of the vehicle. Later in her evidence, Ms Lees said there was a possibility it was not a chrome bull bar and the reason for that was related to the light and the brightness of the light against the darkness of the night. She said it had never been mentioned to her that the vehicle driven by the accused did not have a silver or chrome bull bar, and that she did not really give the bull bar that much of her attention. Well, ladies and gentlemen, whatever bull bar was on the accused vehicle, it is common ground that it was black. So that feature of the accused’s vehicle is inconsistent with the description of the bull bar on the four-wheel drive as Ms Lees described it. If it is a reasonable possibility that Ms Lees has accurately described the bull bar on the front of the four-wheel drive as silver or chrome, then it would follow that it is a reasonable possibility that it was not the vehicle owned by the accused which pulled alongside. On the other hand, from all of the evidence are you satisfied that Ms Lees was in error about the colour of the bull bar? Are you satisfied that Ms Lees, only having a glance across at the other vehicle, at a time when she was looking at the driver, gained an incorrect impression of the bull bar because of the headlights of the four-wheel drive illuminating the bull bar. It is only if you are satisfied that she was in error that you could find that it was the accused’s vehicle that pulled alongside. Ms Lees said she did not see the make of the vehicle, but it was definitely a four-wheel drive utility. She told you she was not familiar with four-wheel drives such as those with which we in the Northern Territory are particularly familiar. Mr Stagg said it

[page 244] was apparent to him that Ms Lees was not familiar with these types of vehicles and he started out drawing a rough sketch and asking whether that appeared to be the type of vehicle. You have the drawings prepared by Mr Stagg, exhibit P30, and you have heard counsel about those drawings. Mr Algie suggested to you that the drawing is inconsistent with the accused’s vehicle. On the other hand, Mr Wild put to you that there was a lot of Mr Stagg in these drawings, that he had a lot of input, and there is material there, that was not spoken about by Ms Lees. I remind you that Ms Lees said she did not regard the drawing as an accurate representation of the vehicle although she agreed it was a good attempt. Both Ms Lees and Mr Stagg have told you of the process that was involved. In the context of the conversations that took place between Ms Lees and Mr Stagg, I remind you that Mr Stagg’s evidence as to what Ms Lees said cannot be used by you as in effect the evidence of Ms Lees as to what occurred unless Ms Lees adopted it. Her evidence as to what occurred is what she said to you. There are two proper uses that you can make of the evidence of what Ms Lees said to Mr Stagg, whatever you find that to be. First, it provides an explanation for the various drawings and notations made by Mr Stagg. It gives you the context in which he made those notes and sketches. Second, if you think it is a reasonable possibility that Ms Lees said something to Mr Stagg which is inconsistent with her evidence to you, you may use that possibility of inconsistency as evidence bearing upon Ms Lees’ general reliability and her credit and reliability, with respect to particular matters in her statements, and of course with respect to her credit and reliability, with respect to particular matters in her evidence. If she said something different to Mr Stagg from what she said to you, or if that is a reasonable possibility, you will need to consider very carefully whether that causes you to have any doubt about her evidence generally or about her evidence on a particular topic.

In the context of statements to Mr Stagg, I have already mentioned that Mr Stagg said to you that he thought he was wrong when he said in his previous statement of evidence that Ms Lees told him she got her hands from behind her back to the front while she was still in the back of the four-wheel drive. In those circumstances there is no evidence that Ms Lees said to Mr Stagg that she got her hands to the front while still in the four-wheel drive. Having mentioned that evidence of Mr Stagg, you will recall that a number of propositions were put to him about that conversation with which he did not agree. It is a convenient time therefore to make an observation about propositions put to witnesses. It is very proper for counsel, and I mean both counsel, to put propositions to witnesses, because in this way witnesses are given the opportunity to comment on particular suggestions. However, I point out that a proposition put by counsel is not evidence. It is the witness’ answer which is the evidence. So if a witness agrees with a proposition, only then does the proposition become the evidence of the witness. If the witness disagrees with the proposition, then the proposition is not evidence. It is merely an assertion which is rejected by the witness. In the context of conversations between Mr Stagg and Ms Lees, you also have the evidence of Ms Andrew, the police officer who was present throughout. She told you that she made notes of what was said and that Ms Lees did not say she got her hands from the back to the front while in the four-wheel drive. According to Ms Andrew, Ms Lees told Mr Stagg that her hands were still behind her back when she managed to slide out of the four-wheel drive and run into the scrub. [page 245] The evidence of Ms Andrew is put before you as evidence contradicting any suggestion that Ms Lees previously made a statement inconsistent with her evidence. It is a matter for you whether you accept the evidence of Ms Andrew.

The other issue to which particular attention has been given, is the shape of the canopy drawn by Mr Stagg. As you can see it is not entirely square, nor is it rounded. Different expressions have been used to describe it. It is angled with a flat section across the top. You will appreciate that attention has been given to this because the canopy on the rear of the accused’s vehicle was quite square. Counsel for the accused has put to you that what Ms Lees described to Mr Stagg was, therefore, inconsistent with the appearance of the accused’s vehicle. In this context, ladies and gentlemen, you will recall the evidence of Ms Andrew, that in fact Ms Lees described to Mr Stagg a square canopy. In other words it is put to you by the Crown that Mr Stagg has made a mistake and has not accurately reproduced the description given by Ms Lees. Again, this is a matter for you whether you accept the evidence of Ms Andrew. Ladies and gentlemen, on the question of whether you accept the evidence of Ms Andrew, there is of course the issue of the date on her notes. The events with Mr Stagg occurred on 20 July 2001 while the notes of Ms Andrew, D12, bear the date 22 July 2001. Counsel have addressed you on this issue and I will not repeat the evidence or their submissions to you. It is a matter for you, what you make of the explanation of Ms Andrew, that in fact the notes you have before you are not the original notes, but are a rewritten copy. Ms Andrew said they were rewritten on the Sunday. You are entitled to look at the notes and make your own assessment of whether their appearance tends to support the view that they were rewritten. Do the notes have the appearance of notes made while Ms Andrew was sitting in a room listening to a conversation? Or does the absence of corrections and general neatness and setting out of the notes give the appearance of notes that were made at leisure on the Sunday as described by Ms Andrew? There is a further feature from the evidence of Ms Andrew about her conversation with Ms Lees. It relates to shelving. Ms Andrew told you that she recorded Ms Lees telling Mr Stagg about coming out of the four-wheel drive and then speaking about shelving as recorded in the notes. When Ms Lees was recalled, she said she had no memory of any

shelves in the rear of the four-wheel drive and she had never recalled the presence of shelves. She said she did not recall any conversation with Ms Andrew about the shelves and did not tell Mr Stagg that there were shelves in the rear. As you know, there are no notes by Mr Stagg of any mention of shelves. Nor is there any drawing of shelves by Mr Stagg in any of his sketches, exhibit P30. Well, ladies and gentlemen, it is a matter for you whether you are satisfied that somehow Ms Andrew has got it wrong about Ms Lees mentioning shelving. If the notes relate to the conversation between Mr Stagg and Ms Lees, you might wonder why there is no note by Mr Stagg of any mention of the shelving, nor any attempt to draw shelves. On the other hand, if it is a reasonable possibility that the notes relate to a conversation two days later, is it a reasonable possibility that Ms Lees mentioned shelves or are you satisfied that Ms Andrew has got it wrong? Regardless of when the conversation took place, if it is a reasonable possibility that Ms Andrew has got it right, and if it is a reasonable possibility that Ms Lees was referring to the vehicle of the offender, then you have a statement of Ms Lees inconsistent with her evidence to you. Because Ms Lees did not agree that she made the statement, you cannot use the statement as in effect her evidence. You may only use it as evidence [page 246] of a previous statement inconsistent with her testimony and therefore relevant to her credit and reliability. Ladies and gentlemen, there is one other piece of evidence that counsel have not mentioned and you may or may not find this particular part of the evidence of any assistance in considering the question of shelves. It’s evidence from Ms McPhail. In describing the canopy on the accused’s vehicle as being of a rigid structure, a steel structure, Ms McPhail said this:

There was support beams that went across the top to hold it nice and firm in place and hanging off those beams, there were objects, stuff, ropes, bits and pieces. That was the state of the interior of the canopy according to Ms McPhail on 20 June 2001. You might care to consider whether a description of items hanging around like that could result in confusion in the darkness as to presence of shelves. You may think it of absolutely no significance whatsoever. That is a matter entirely for you. Ladies and gentlemen, a further direction in connection with the notes of Ms Andrew, exhibits D11 and D12. I need to add this: you must be very careful not to use the rest of the notes, that is, the other parts to which no attention has been drawn so far, as in some way reinforcing or buttressing the evidence of Ms Lees because what she said to Ms Andrew is consistent with her evidence to you. The notes have a very limited use relating to previous inconsistent statements and, of course, to Ms Andrew’s explanation about the rewriting. However, they cannot be used as evidence demonstrating that Ms Lees made a prior consistent statement and therefore is, in some way, reinforcing or bolstering her evidence or credibility. Well, ladies and gentlemen, returning to the description of the vehicle, you might think a very important issue centres on the lack of access from the cabin of the Landcruiser of the accused into the rear canopy. It is common ground that there was no such access, interior access, on the accused’s vehicle. Indeed, you might think it is common knowledge, and certainly it appears from the evidence about Landcruiser utilities, that in standard form there is no interior access from the cabin to the tray. It is quite a different vehicle from the Kombi van. Immediately after these events, and this includes while Ms Lees was talking to Mr Stagg, Ms Lees believed that the vehicle had bucket seats and that she got through to the rear by moving between those seats inside the vehicle. In evidence she said that as she sat in the witness box she was now not sure whether she moved through the inside of the vehicle or came around from the outside and over the side.

Ms Lees had been told that there is no Landcruiser with interior access from front cabin to the rear tray between the seats. Asked whether anything had happened to cause her to doubt the reliability of her initial reaction, Ms Lees gave the following answer: What’s kind of caused me to doubt is that all I remember — I mean I wasn’t taken, I didn’t walk around to the back of his vehicle and get in that way. Perhaps I sort of presumed, as I have front to rear access in the Kombi Van, that might have been why I got through. But as I’ve had time to reflect after my initial statement, I now remember sort of landing in the rear of his vehicle on my stomach on my side. It’s possible now that he may have pushed me through the side canvas. [page 247] Ladies and gentlemen, as I said, obviously this is a very significant issue. If it is a reasonable possibility that Ms Lees’ original recollection was correct and that the vehicle into which she was forced had interior access from cabin to the tray, then it would follow it is a reasonable possibility it was not the accused’s vehicle. If it is a reasonable possibility it was not the accused’s vehicle, then it would also follow that it is a reasonable possibility that it was not the accused who attacked Ms Lees. If that is your view, then you would acquit the accused.18 On the other hand, bearing in mind the explanation given by Ms Lees, and having regard to all of the other evidence, are you satisfied that Ms Lees’ initial recollection was incorrect. As I have said, this will involve not only a consideration of Ms Lees’ explanation, but a consideration of all the rest of the evidence. In connection with the possibility of Ms Lees being put into the tray over the side of the vehicle, you will be[ar] in mind the overall height of the sideboards and the evidence of witnesses concerning the packing of the vehicle to which I will turn in a moment. In addition, you will recall that Mr Johnston told you that if he or the accused got in and out of the

tray, they usually got out on the passenger side rather than go around the back. Mr Johnston also said that on his trip the swag was laid out on top of the tubs on the passenger side of the rear tray. Counsel for the accused put to you that Ms Lees could not be wrong about this question and that she has shifted her evidence because she now knows that the vehicle driven by the accused did not have interior access from the cabin to the tray. On the other hand, Mr Wild suggested that Ms Lees could have become confused because of the trauma and distress and because of the interior access that existed in the Kombi Van. Mr Wild suggested that Ms Lees has got the bucket seats right because Mr Hepi told you about the change to bucket seats and when inspected in 2002 the accused’s vehicle had bucket seats. As you have heard, bucket seats are not standard on a 75 series Landcruiser ute. Mister Wild put to you that the accused is a big strong man who would not have had any difficulty in putting Ms Lees over the side. Ladies and gentlemen, I then move to the canopy. Ms Lees told you there was a canopy with sides, but there was an opening at the back through which she escaped. She said she never saw the roof or the top of the vehicle and for that reason she could not say that the drawing was a good representation. There was something soft that she thought was like a mattress in the rear. She was able to slide straight out, over the back and drop to the ground. It was her memory that the canvas cover was dark olive or green. She gained the impression of canvas when the man lifted the corner flap behind the passenger seat to get to the back. Ladies and gentlemen, you well know that as to the canopy the accused and Mr Jamieson told you that the mesh sides were still in place on 14, 15 July 2001. If it is reasonably possible that those mesh sides were still in place, it would follow that it is a reasonable possibility that the vehicle into which Ms Lees was placed was not the accused’s vehicle. Or are you satisfied from the evidence of Mr Hepi, Mr Johnston, Mr O’Dore, Ms Allan, Ms Maxwell and Ms McPhail, or any of them, that as at 14 July 2001 the canopy on the rear of the accused vehicle did not contain the mesh sides? If you are satisfied that the

canopy did not contain mesh sides and was a canvas canopy with tie down sides and zip entries, it would be open to you to conclude that the canopy is consistent with the evidence of Ms Lees. [page 248] This evidence is obviously also a matter of significance. I remind you of what the accused said about the canopy. He told you that about 1999, Mr O’Dore made the green canvas sides for the canopy on the 47 series Landcruiser. The canopy including the green canvas sides was then put on the F100 and from there onto the 75 series. The accused said to you that somewhere around a month or two months after the canopy and canvas had been put onto the 75 series, he had Mr O’Dore put the flaps or windows in on the two sides and the rear. This included putting fly wire mesh under the flaps. The accused said that at this time the original mesh sides that had been on the F100 were still on the 75 series over which this canvas which was altered by Mr O’Dore was fitted. According to the accused this was the canvas and the canopy that were in place in July 2001. The accused told you that after July 2001, he had the new canopy made, which he agreed was made by Mr Galvin in late August 2005.19 At that time he had Mr O’Dore make up the PVC cover which you can see in exhibits D3. The accused referred to those as the welded plastic sides. According to the accused, sometime after the canopy welded plastic sides were in place, and at a time when he was living in Adelaide, he decided to try some canvas sides. As to why he decided to try canvas sides the accused gave you this evidence. He said: Because the plastic side ones were flapping against the fly wire, the welded mesh and you could sort of hear them, even with the window wound up, so I decided I’d try some canvas sides to see if that pushes in noise instead of a welded plastic flap, being canvas, see if it made any difference, which it didn’t make too much difference and they were sort of — weren’t a flash made

set and they were quite tight to do the zips up, at either end to do them up, it was quite hard. And so that’s what that sort of canvas was. The accused said the set were made later in Adelaide and they are the ones that were in his vehicle at the time of his arrest as shown in exhibit P277. This was the poorly made set. They were in the back of his vehicle in August 2002, because they were not needed anymore. As to where the better quality set of canvas into which Mr O’Dore cut the flaps or windows, that is, to the whereabouts, the accused told you that set had been stored at Mr Hepi’s. As to why he did not take that better set when he left Mr Hepi’s in August, the accused replied, ‘They were gone from James Hepi’s property then’. So, ladies and gentlemen, you have the accused telling you that there was the original canvas cover over the mesh sides that went from the F100 onto the 75 series. He has told you that there was not a completely new canopy canvas made in 2001, but rather Mr O’Dore only cut windows into it. I turn to try and summarise the lengthy evidence that you have heard about different canopies on the accused’s vehicle, including the nature of the canvas cover and whether there were mesh sides still in place. It is common ground that soon after the accused purchased the 75 series, the canopy from the rear of the F100 was transferred to the rear of the Landcruiser. According to Mr Hepi, there were modifications required and that included the guardrail around the top of the canopy being removed. Mr Hepi said that in the next two or three months after March, the mesh sides were removed and a new canvas was fitted. He said the mesh remained at his place at Sedan. So that’s the evidence of Mr Hepi. What other evidence is there? [page 249] If you accept his evidence, Mr Johnston was with the accused at the time of the purchase of the Cruiser in March 2001. Mr Johnston told

you he drove the F100 back from Mr Hepi’s place. According to Mr Johnstone, at Mr Hepi’s place he helped transfer the canopy from the F100 to the cruiser and in the process the wire mesh sides and rear were taken off. It was just the original canopy left with a green canvas. And Mr Johnston identified the green canvas in P277 as looking similar. You will recall that Mr Johnston was cross-examined about his evidence at the preliminary examination in which he initially described the canopy on the Landcruiser as having mesh sides. But later in that same evidence he had said the mesh sides were removed. In his evidence to you, Mr Johnston said that the mesh sides were removed a day or two after the canopy was transferred. He spoke of drilling out the pot rivets. The accused says Mr Johnston has got this wrong. According to the accused, the mesh sides were not removed until after the July 2001 trip and he did the removal on his own at Forrest Street. Well, is it a reasonable possibility that Mr Johnston has got it wrong? The Crown put to you that Mr Johnston was a careful and thoughtful witness whose evidence has been consistent throughout. Mr Wild put to you that Mr Johnston’s evidence is consistent with Mr Hepi and other witnesses. Mr Johnston also told you about a new canvas cover or canopy. The third trip, being May 2001, Mr Johnston said the new canopy was put on before the third trip. He described it as canvas with zipper windows on three sides which could be rolled up independent of the side of the canopy. If the windows were rolled up, you would see the fly wire screen. Mr Johnston, on one occasion, slept in the rear and he told you of them getting in and out of the tray. They would do it from the passenger side. According to Mr Johnstone, the canopy on the vehicle in the video looks much the same. Ladies and gentlemen, how does the evidence of Mr Hepi and Mr Johnstone about the removal of the mesh sides and the fitting of the new canopy by May 2001 fit with other evidence? The other witnesses who you might think are significant on this issue are Mr O’Dore, Ms

Allan, Ms Maxwell and Ms McPhail. You also have Mr Docherty and Mr Jamieson. First, Mr O’Dore to take things, at least roughly, in the chronological order. Mr O’Dore told you that his firm fitted two canopies to the 75 series and a boat canopy. He has no records. Interesting, ladies and gentlemen, not many of the people who did work in Broome have any records. However, we do the best with the evidence that we have. Working backwards, as to the second occasion of work on a canopy on the vehicle, you also have the evidence of Mr Lockley of Tropical Upholstery, who told you that he put the PVC curtains over the mesh sides of the canopy frame. He looked at photographs 6 and 7 of P275 and said they appeared to be the curtains. So, ladies and gentlemen, if you accept the evidence of Mr O’Dore and Mr Lockley, it would be open to you to conclude that the second job they did for the accused was to put the PVC curtains on the final canopy which was built by Mr Galvin toward the end of August 2001. So that would be open to you to draw that conclusion; this was the second job. What then of the first job? According to Mr O’Dore, the work was likely to have been done by Dan Wescott, but Mr Wescott could not remember doing that particular job. Mr Wescott told you they did not always know who the job was for and would simply do it in accordance with instructions from the boss. [page 250] Mr O’Dore told you that in the first job there was a three-sided canopy constructed which he thought was PVC, but it could have been canvas. He took the initial inquiry from the accused and booked it in, probably a week or two later. Mr O’Dore saw a photograph from the Truck Stop video. When he saw it he thought that was the canopy that his firm had made. It was put to Mr O’Dore that there was nothing distinctive or unusual about the canopy in itself that is in the video. He

agreed with that but added: ‘We do put zips in like that and you can roll up and flyscreen beneath’. Mr O’Dore agreed he was unable to see their little diamond sign on the canopy in the video and, having acknowledged that the sign was not there, it was put to him: So it may be a canopy similar to one your business might have made but in fact a canopy made by another canopy maker, mightn’t it? — It’s possible. Well, ladies and gentlemen, just pausing there on that question for a moment, on the video, and as to that monogram. The witnesses have told you that usually the monogram is affixed, but sometimes it is overlooked. Mr O’Dore told you he would expect to see it on the rear of the canopy shown in the truck stop video at the bottom right hand side. Well first, is the image of the bottom right hand side corner of that canopy clear enough to show if the monogram is there or not. That might be your first question. Second, if you accept the evidence of Mr Ride and Mr Ringrose, the camera system was not designed to pick up details of a number plate and Mr Ringrose was unable to find the number plate itself in the images. And you recall the explanation given to you about the number of lines available to pick up particular images. Well, ladies and gentlemen, if you are satisfied that the camera was not capable of picking up a number plate, are you satisfied that it would not be capable of picking up a small diamond monogram on the bottom right hand side, even if it was there. Now, returning to Mr O’Dore and the construction of this canvas cover or canopy. It is a matter for you but you might think Mr O’Dore was talking about the construction of an entire canopy and not simply cutting flaps or windows into an existing canvas canopy. Are you satisfied Mr O’Dore could not have been talking about a 1999 canopy because according to the accused, the 1999 canopy did not have any windows in it? Mr O’Dore was talking about canopies with windows.

It was never put to Mr O’Dore that he did not construct an entire canopy, but rather only cut flaps or windows into an existing canopy. So you are left with his evidence, as it stands, and it is a matter for you whether you are satisfied that Mr O’Dore was talking about the construction of an entire canopy rather than simply cutting windows or flaps into an existing one. If you are satisfied that Mr O’Dore was talking about the construction of an entire canopy with zips and windows, then his evidence would stand in contrast to the accused’s evidence. Ladies and gentlemen, I am about to move to other witnesses. We might take a 10 minute break. ADJOURNED HIS HONOUR: Ladies and gentlemen, I turn to the evidence of Ms Allan concerning the nature of the canopy. She told you that in April 2001 she travelled with the accused on a trip in that vehicle from Broome to Kununurra and Wyndham. She said the canopy was a canvas canopy with tie down elastic sides and zip up sides which enabled the [page 251] canvas to be rolled up leaving fly screen in place. The fly screen could also be rolled up. It was soft fabric and no metal. During cross-examination Ms Allan was shown a photograph of the F100 and it was put to her that the canopy, including the mesh, as seen on the F100 was on the Landcruiser. Ms Allan was positive that the canopy on the back of the Landcruiser was not the same and did not include the mesh. She said, ‘It was a canvas canopy with tie down sides and zip entries’. And on more than one occasion Ms Allan disagreed with the suggestion that there was mesh beneath the canvas and fly wire. Well, as always, it is a matter for you what you make of the evidence of Ms Allan. What, in your view, was the opportunity that she had to

see the canopy on that trip? Is it a reasonable possibility that somehow she’s got this all wrong, or that she is deliberately giving false evidence? Or are you satisfied that this was a witness who was, as the Crown put it, fond of the accused and who is plainly telling the truth? In the period before 14 July 2001, there are three other witnesses who gave evidence of trips with the accused and about the canopy of the accused’s vehicle. First there is Mr Johnston. The first trip was back in March 2001; then there was the return trip in May that I have mentioned. He said there was no mesh on either trip. The others are Ms Maxwell and Ms McPhail. Rachel Maxwell was a friend of Mr Hepi. She lived in South Australia and was at Mr Hepi’s place at Sedan on occasions when the accused was present. I will come later to her evidence about the silver hand gun. From a combination of evidence including the quarantine records, and if you need to be reminded about the evidence in detail just let me know, but from a combination of those records and other evidence it would be open to you to conclude that Ms Maxwell accompanied the accused on the trip when the accused’s vehicle passed from South Australia into Western Australia on 17 May 2001. Ms Maxwell said she carried an overnight bag. She saw the accused put it in the back tray. She said he lifted up enough of the canopy to put the bag in the back. She told you he lifted up the front section near the cabin on the passenger side. She recalled zips and tie downs and did not see any cage. On other occasions she had looked in the back of the Landcruiser she had never seen a cage. I pause on Ms Maxwell’s evidence to remind you that the accused said in order to put Ms Maxwell’s bag in the back he had dropped a sideboard and lifted the mesh. Is it reasonably possible that she has forgotten that or are you satisfied that she has got it right and there was no mesh? During cross-examination Ms Maxwell repeated that she had never seen any of the accused’s canopies with security mesh. When she was asked whether the accused had to lift up the side or back of the canopy to put her bag in the tray, Ms Maxwell responded: ‘It looked to me like it just lifted up, like the, what do you call it, like the

tarpaulin was by itself’. Asked if the accused lifted up the whole side, Ms Maxwell said she thought he undid just enough to slip her bag in. She agreed she did not pay particular attention to the canopies on the rear of the vehicle and she could not recall any mesh on the canopy on the F100. Well ladies and gentlemen, taking events chronologically, you have the evidence of Mr Hepi, Mr O’Dore, Ms Allan, Mr Johnston and then Ms Maxwell. Then if you accept it, you have the evidence of Ms McPhail who met up with the accused crossing the Nullarbor on 19 and 20 June 2001. According to Ms McPhail — and this much is not disputed by the accused — in the early hours of 20 June 2001 she and the accused parked side by side off the main highway just west of the head of the bite and slept for [page 252] a few hours. You will recall the accused agreed they slept side by side for some time after they had had a chat. Ms McPhail told you that the accused got into the back tray of his utility to have a rest on some kind of swag set up. The accused agreed they slept the night, but he said he slept on the ground. Ms McPhail described the accused’s vehicle in the following terms: It was a white ute with a green canopy, tarpaulin type canopy that was on a rigid structure, a steel structure. There was support beams that went across the top to hold it nice and firm in place and hanging off those beams there were objects, stuff, ropes, bits and pieces. Was there any mesh on the sides of the vehicle? — No, I didn’t see a cage, it wasn’t — it was just the tarpaulin with that — that opened up. When you say Mr Murdoch jumped in the back of the ute? — Yes.

How was access obtained to the back of the ute? — Just rolled up the flaps. Did you see either of the side flaps rolled up at that time? — Yes, the right hand side one. Completely rolled up? — That’s right. Was there a window in it? — Yes, there was. What sort of window? — Just a zipper one. Pardon? — A zipper one. When that was open, what could you then see? — Into the ute. Are you talking about — I’m asking you about a window rather than a whole side, do you understand? — Yes. If there was a gauze there, I’m not sure. Well, ladies and gentlemen, if you accept the evidence of Ms McPhail, on 20 June 2001 the accused’s canopy did not have mesh sides. You will need to consider what opportunity Ms McPhail had to see whether there were mesh sides. Do you accept their evidence that the accused got into the back tray and slept on some sort of swag set up? Or is there a reasonable possibility that Ms McPhail is wrong about where the accused slept and about the mesh sides? Leaving aside the question of a weapon, you know that the accused agrees with Ms McPhail about how they joined up and how they spent the night side by side at the head of the Bight. Is it a reasonable possibility that although Ms McPhail is right about those other matters, somehow she has got it wrong when it comes to the canopy and where the accused slept. As always, in considering whether you accept the evidence of Ms McPhail, you should take into account other evidence that bears upon the topic of the nature of the canopy and whether or not the mesh was in place. The other witness who gave evidence about a canopy was Mr Jamieson from Fitzroy Crossing. He told you that the only type of

canopy he has ever seen on the accused’s vehicle was a canopy with mesh. He said that on the occasion the accused arrived [page 253] towing the camper-trailer, which he worked out was the weekend of 14–15 July, he saw the accused lift up the mesh, prop it up with a stick and let the dog out. Is it a reasonable possibility that Mr Jamieson is right about the date and the canopy? If it is a reasonable possibility that he is right, then as at 14–15 July the accused vehicle had a canopy with mesh sides on it and it could not have been the vehicle at Barrow Creek from which Ms Lees escaped. On the other hand, are you satisfied from other evidence that Mr Jamieson is wrong either about the date on which he saw the vehicle with the canopy, or if he is right about the date, he is wrong about the nature of the canopy? First, the date. Mr Jamieson told you he set about trying to work out the date when he spoke to police in September 2002. He had records that indicated that on 5 July he attended a function in relation to community business awards and on 22 July was his wedding anniversary. And he knew from his father-inlaw’s diary that he had been away on a fishing trip from 25–27 July. Putting all that together, he worked out that the accused came through early on the Saturday or Sunday evening, being 14 or 15 July. Well, ladies and gentlemen, if Mr Jamieson is right about the date, what then of his evidence about the nature of the canopy? How does his evidence and that of the accused stand against the evidence to which I have referred that came from Mr Hepi, Mr Johnston, Mr O’Dore, Ms Allan, Ms Maxwell and Ms McPhail?. I point out it is not just a question of weighing up numbers on each side. It is a question of weight up the totality of the evidence and deciding, if you can, what evidence you accept and what you reject. Counsel for the Crown put to you that you have a number of reliable witnesses all of whom had more than ample opportunity to see the canopy and all of whom were positive that there were no mesh sides.

Mr Wild pointed out that they could not be wrong about the dates because they were able to do cross-checks with documentary records to confirm dates. In combination, said Mr Wild, you could see the progress from the removal of the mesh sides through the various trips to late June 2001 with Ms McPhail. In simple terms, Mr Wild put to you that you should reject the evidence of the accused and Mr Jamieson because of the powerful evidence coming from a combination of those witnesses. Mr Wild invited you to give little weight to the evidence of Mr Jamieson, particularly in view of Mr Jamieson’s evidence that he saw the mesh sides lifted to enable the dog to get out. Mr Wild put to you that as the accused was on his own, Jack would have been travelling on the front seat or the floor of the cabin. On the other hand, counsel for the accused asked you to find on the basis of the evidence given by the accused and Mr Jamieson that it was at least a reasonable possibility that the mesh sides were in place. Mr Algie suggested the accused would never have driven around for that period of time without the security of those mesh sides. He put to you that the photographs at Barred Creek in late July occurred after the long-range fuel tank, mesh sides and other gear had been removed by the accused in preparation for future work. Ladies and gentlemen, in the context of submissions about the evidence of Mr Jamieson, you will recall that Mr Wild withdrew his suggestion that Mr Jamieson, at the behest of the accused, had manufactured evidence. Mr Wild accepted that such a suggestion was unfair. That was a very proper withdrawal and concession. It was never put to Mr Jamieson or the accused that somehow they had put their heads together. In those circumstances, you should disregard that suggestion. What Mr Wild explained to you was that sometimes the Crown call witnesses about whom the Crown is ambivalent. Mr Wild used the examples of witnesses from Bourke [page 254]

and Aileron. Those witnesses gave evidence that did not favour the Crown case, but nevertheless the Crown complied with its duty to put the witnesses before you so that you could decide the question. In those circumstances, the Crown invites you to find that those witnesses did not give reliable evidence and invite you to reject their evidence. The same applies to the evidence of Mr Jamieson. If you are satisfied from a combination of all the evidence that as at 14–15 July the canopy fitted on the accused’s vehicle was as described by various witnesses, a canvas canopy with zipper window sides, what impact does that have on your view of Mr Jamieson’s evidence. Is he right about the date but wrong about the canopy? Or are you satisfied that although Mr Jamieson did his best to tie down the dates, he is wrong in his reconstruction and it was another date on which the accused came through Fitzroy Crossing towing the camper-trailer? You will appreciate that this is a significant issue because if you accept the evidence of Ms Lees, the four-wheel drive at Barrow Creek was not towing a camper-trailer. Ladies and gentlemen, if you are satisfied that as at 14 July and 15 July the accused’s vehicle had a canvas canopy without mesh sides, not only would such a canopy be consistent with the description by Ms Lees, but it would mean that you have rejected the accused’s evidence about the canopy. If you find that the accused has been untruthful with you about the canopy you would be entitled to regard his lack of truth as reflecting adversely upon his credibility as a witness. As always, the extent to which any untruthfulness about this issue reflects on the credibility of the accused as a witness, is a matter for you. I will come back to the question of the camper-trailer in a moment. First, I will complete my discussion of the evidence concerning features of the canopy or tray of the offender’s vehicle. The next feature of the tray of the offender’s vehicle concerns Ms Lees’ evidence that when she was put into the rear of the vehicle she was on something soft. In addition she was able to slide straight out over the back tail gate and drop to the ground. Both Mr Hepi and Ms Allan — I will go back a step. She was able to slide straight out and drop to the ground. Whether there was a back tail gate over which she

slid or whether there was no back tailgate will be a matter for you to consider. Both Mr Hepi and Ms Allan told you that the accused was meticulous about his packing of the vehicle. When Mr Hepi was shown photograph D3 which depicted a mesh canopy on the back of the vehicle at the time it was in the possession of the police in South Australia, and which shows in the back, well above the level of the sideboards, a lot of gear, Mr Hepi told you that the photograph was taken after Mr Murdoch had packed all his gear in there to travel interstate. Mister Hepi said it was dissimilar to the situation that existed in July 2001 and there was more gear in the rear shown in that photograph than would have been in place in July. Mr Duthie also commented on the accused’s packing. He agreed the accused kept most of his worldly goods and possessions in the back canopy and was obsessive about it. He also agreed everything was meticulously in its place. As to what is shown in the photograph D3, Mr Duthie agreed they give a fair indication as to the type of gear the accused used to keep in the back of his canopy, but it was not that untidy. He said the quantity of gear is fairly represented in the photograph. In due course, ladies and gentlemen, you may care to look at those photographs that show the gear in the rear of the canopy and ask yourselves whether that displays the meticulous type of packing about which you have heard or not. [page 255] Mr Hepi told you that everything was packed to the level of the top of the sideboards and tailgate. He drew a diagram, exhibit P246. Could we have that on the screen please. You can see how Mr Hepi has marked in a number of items and drawn in the level of the packing. He explained how a number of boxes or crates covered the floor and they were then covered by about four pieces of plywood. A swag was thrown on top so that in his words, the deck was level. The plywood

was across the top so that the swag could be rolled out and used to sleep. As Mr Hepi explained, ‘The whole thing like keeps everything out of sight’. Ms Allan told you that on the trip to Wyndham the rear was packed up for camping. She said the packing was very orderly, and everything had its spot. ‘It was packed to the top of the tray and the dog’s bed doona was across the top.’ Mr Johnston said that on the trips he did with the accused they carried a number of items in the rear, such as the esky, the Engel fridge, a 20 L drum of water and three or four plastic tubs. He said they slept on top of that lot on a swag. Speaking of the canopy that was on the F100, Mr Johnston demonstrated that he could not quite sit upright when sitting on the swag, rather he had his shoulders bent down a little. You might recall he gave a demonstration of the distance from the swag to the roof of about 3 feet. As to how the swag could be laid out in the back with all that gear that was carried, Mr Johnston told you that he slept once on the way down during the third trip in the rear of the Landcruiser. He said he was on the accused[‘s] swag which would have been laid out. As to how it was laid up to enable him to sleep, Mr Johnston pointed out that the fuel tank was against the cab and about four to six inches higher than the tubs. Along the passenger side were the tubs and he indicated that they were about 18 inches deep [or] a bit less. He said he laid the swag out across on top of the tubs. The accused also gave evidence about the packing of the tray. He told you that in July 2001, except for the position of the table and two chairs, the tray was packed in an identical manner to the packing you see in the photographs D2. You can compare what you see in the photograph D2 with the description given by other witnesses. It was suggested to the accused that the vehicle was packed in D2, to move all his worldly belongings interstate. The accused gave this evidence: One bag of clothes, two bags of clothes extra, otherwise no. That’s the amount of gear that was carried in the back all the

time. You were moving everything weren’t you? — Not everything. Were you moving interstate, that is does this photograph depict what was packed when you were moving interstate? — No it doesn’t your Honour, I was going interstate are you putting a thing on my moving, why am I going interstate? You were going bush weren’t you? — No I was going interstate, I was going over to see mum and dad. You weren’t returning? — Not straight away, I wasn’t returning. Ladies and gentlemen, the accused told you in that passage that he was not moving everything. Earlier in his cross-examination, the accused was being asked about why he took the rubbish canvas from Mr Hepi’s in August 2002, but not the better quality [page 256] ones. He said the better quality ones were gone from Mr Hepi’s property by that time. He then gave the following evidence: So you took the rubbish ones with you, the old ones, and you didn’t bother to secure the good ones — Took all my gear that was left at James Hepi’s property, that’s what I took. Well, ladies and gentlemen, it is a matter for you what you make of that evidence. Are you satisfied that Mr Hepi told you the truth when he said the accused packed up everything or is it a reasonable possibility that the accused is telling you the truth that he did not pack everything? To bring it back to the time with which you are concerned, 14 July 2001. Are you satisfied that in a general way the accused[‘s] vehicle was similar to the offender’s vehicle in the way it was packed? If you are satisfied of that fact, then that fact becomes another piece of circumstantial evidence that you put into the scales to be considered

with the rest of the proven facts. If there is a reasonable possibility that there were dissimilarities, that would be a factor to be put into the scales as tending against a conclusion that it was the accused vehicle who pulled over the Kombi Van that night and attacked Ms Lees. Allied to the question to the consistency or otherwise between the offender’s vehicle and the accused’s vehicle, is the question of the camper-trailer. Is it a reasonable possibility that the accused was towing a campertrailer on this trip? Or are you satisfied that he left the camper-trailer in South Australia? If it is a reasonable possibility that the accused was towing a camper-trailer on this trip, counsel for the accused suggest[s] it would follow that you could not be satisfied that it was the accused in the four-wheel drive north of Barrow Creek. The four-wheel drive north of Barrow Creek was not towing a campertrailer. Nor was the four-wheel drive in the Truck Stop video. Mr Algie suggested that plainly, the accused having just bought the camper-trailer and only just registered it, he would want to take it to Broome and he put to you that the evidence from Repco about the purchases of those water containers supports that conclusion. Mr Algie put to you that it is fanciful to suggest that the accused would have dropped the camper-trailer off somewhere before overtaking the Kombi and later before going into the truck stop. Ladies and gentlemen, as to whether the accused brought the camper-trailer on that particular trip from Sedan to Broome, I remind you of the evidence of Mr Hepi that on one of the runs the accused had a green camper-trailer. Mr Hepi could not remember precisely when it was returned to Broome, but asked whether he was able to say whether it was before or after the Barrow Creek incident, Mr Hepi said: ‘I think it was beforehand, I’m not sure’. Mr Hepi went on to say that the accused had just come back from a run and had a camper-trailer, but added later in his evidence that he was not sure if it was towed straight back to Broome after it was purchased in Adelaide. In addition to this, of course, you have the evidence of Mr Jamieson to which I have referred and the evidence of Ms. Allan that the accused told her he had been towing a camper-trailer.

Counsel for the Crown put to you, in essence, that you only have the evidence of the accused and Mr Jamieson. I have already discussed how Mr Jamieson worked out the dates and whether in your view, if Mr Jamieson is wrong about the mesh sides, it has an impact on his reliability concerning the date or the towing of the camper. [page 257] Mr Wild put to you that even if it is a reasonable possibility that the accused was towing a camper-trailer on that trip, the answer to the absence of the camper-trailer is simply that the accused, for his own reasons, unhitched the camper-trailer before he overtook the Kombi and attacked Mr Falconio and Ms Lees. He suggested that it was highly unlikely that this meticulous man, having just paid $4000 for the camper-trailer, would take that brand new camper across what the accused called the roughest dirt in Australia. Mr Wild suggested there was a clue in the conversation between the accused and Ms Allan when the accused told her that there had been a few dramas on the trip and he suspected someone had been following him and he had had to deal with it. Perhaps, said Mr Wild, the accused had seen all three Kombi Vans and had come up with the wrong idea that he was being followed. Perhaps, suggested Mr Wild, he had competing interests, but uppermost in his mind was avoiding contact with police or others and the camper-trailer was expendable if there was a bigger drama in life. Mr Wild suggested it would not have been difficult for the accused to get rid of the campervan in one of his many camping spots while he set about dealing with whatever problem he regarded as a drama. The other factor mentioned by Mr Wild was Ms Allan’s evidence that the accused spoke of changing the route he intended to follow. The accused told Ms Allan, according to her evidence, that he came back on a different route, a longer way, because of roadblocks looking for Mr Falconio. Mr Wild suggested to you the accused was embellishing somewhat with Ms Allan about roadblocks, but he questioned whether there was a clue in the conversation that the accused intended going

up the Stuart Highway with his new campervan, bypassing the Tanami. But because of having to deal with a problem, it was necessary to change his route. Well, ladies and gentlemen, is it a reasonable possibility that when the accused drove into Alice Springs he was towing a camper-trailer or are you satisfied that he did not have the camper-trailer? If it is a reasonable possibility that the accused was towing the camper-trailer on this trip, does that reasonable possibility create a doubt about whether it was the accused’s vehicle north of Barrow Creek? Or are you satisfied that even if he was towing a camper-trailer on this trip, nevertheless it was the accused’s vehicle north of Barrow Creek without the camper because for his own reasons he had left it somewhere. 4.30

His Honour next summarises the evidence and contentions concerning the accused’s dog, Jack. It is treated as yet another piece of circumstantial evidence to be considered. Comparisons are made between Lees’ description of the dog, the Dog-a-Log and a photo of Jack.

HIS HONOUR: The next category of evidence that I mentioned to you, the fifth category, relates to another characteristic of the offender and it concerns the dog. Ms Lees told you the man in the four-wheel drive had a dog with him. There does not appear to be any dispute that the accused had a practice of his dog being with him. Mr Hepi told you the dog used to sit on the front passenger seat. According to Mr Hepi, the accused also put a mat on the floor to enable the dog to sleep on the floor. Other witnesses spoke of the dog travelling in the back. Ms McPhail saw the dog on the front seat. Ladies and gentlemen, if you accept that the accused travelled with Jack in the car, just as opportunity itself cannot prove the accused committed the crime, nor can the fact [page 258]

that the offender had a dog in the car and the accused had a practice of taking his dog with him. However, if the dog seen accompanying the offender could have been the accused’s dog, that will be another piece of circumstantial evidence to be put into the scales. So, are you satisfied that the dog accompanying the offender as seen by Ms Lees could have been the accused’s dog? Well, ladies and gentlemen, it is unnecessary for me to repeat the evidence or counsel’s submissions. You will make what you will of their submissions and you can make your own comparisons. The accused[‘s] dog is shown in exhibit P44. Can we have exhibit P44 on the screen for a moment, please? And you also have pictures of the accused[‘s] dog in exhibit D1. Tex, the dog from Barrow Creek, a year or more after the events is in exhibit P41. Could we have that, please? So, ladies and gentlemen, Ms Lees told you that the dogs were similar. That is the dog the offender had and this [is] that of the accused. What is your view about that matter? Thank you, we’re finished with that. Ms Lees gave you this description of the dog in the car with the offender: It’s of medium build, quite a broad chunky dog. It had pointy ears — pointed ears. It was black or dark brown and white. ‘ You say — and white? — Patchy. As to the similarities between Tex and the accused’s dog, Ms Lees gave you this evidence: ‘What can you say about the dog in the picture’ — and this was a picture of the accused’s dog. She gave this answer: It’s very similar to Tex, the dog I identified as similar to the dog the man had at Barrow — when I was at Barrow Creek and it’s like the dog the man had. What are the points of similarity? — Size, ears, width of head,

the width of the dog and the colouring of the dog. Well, ladies and gentlemen, then you have the Dog-a-Log. Ms Lees said the colouring of the dog she picked, the Australian Cattle Dog, was not the same but the build and size was similar. She told you she was influenced by the description in the Dog-a-Log mentioning that the cattle dog was a Blue Heeler. Ms Lees did not claim to positively identify the accused’s dog in the photograph as the dog that was in the four-wheel drive. She told you of what she regarded were the similarities between the dog at Barrow Creek and the dog she saw with the offender. In considering the weight to be given to that evidence, you should bear in mind that when Ms Lees first saw the photograph of the accused’s dog she knew it was a photograph of the suspect’s dog. She told you, however, that her knowledge that the dog belonged to the accused or the suspect did not influence her decision. She said she was never asked to assess whether the dog we know to be the accused’s dog was similar to the dog in the four-wheel drive. She was presented with the two photographs, that is the photograph of Tex, on the one hand, and the photograph of the accused’s dog on the other, and was asked if they looked similar or alike. [page 259] Finally, in connection with the Dog-a-Log, you will recall that Ms Lees was asked whether she saw the entry in the Dog-a-Log for the Dalmatian. She said she did not regard the Dalmatian as representing the dog in the four-wheel drive because she regarded Dalmatian’s as friendly, floppy eared and always reminding her of the film 101 Dalmatians. 4.31

The next topic concerns the evidence relating to the subject of weapons and their connection with Murdoch. Once again, at best this is a piece of circumstantial evidence.

HIS HONOUR: I move to the next category of evidence which concerns the weapon that was used by the offender according to the evidence of Ms Lees and whether the accused owned a weapon or had possession of a weapon that was consistent with the description given by Ms Lees. As I come to this topic, I pause to repeat earlier directions about the use of evidence concerning the accused dealing in cannabis, use of amphetamines and habit of carrying a weapon. Considered in its entirety, this evidence has been led to establish that the accused regularly drove roads between South Australia and Broome, including roads to the north and west of Alice Springs. The reason he did so was his involvement in the trading of cannabis. In those circumstances it might not be surprising that the accused would be in the habit of carrying a weapon on such trips. In addition, you have heard about the use of amphetamines which is put before you as evidence that the accused would be capable of travelling long distances, including from Barrow Creek to Broome with very little, if any, rest. I have already given you directions about not reasoning that the accused is a person of bad character because he engaged in selling of cannabis or because he had weapons and, therefore, he is the type of person who is likely to have committed the crimes charged. It is necessary that I repeat and emphasise that direction. When evidence of illegal activity such as trading in cannabis, use and possession of amphetamines and possession of weapons is put before a jury for proper purposes, as in this case, it is very important that the jury only use the evidence for those proper purposes and not engage in the impermissible line of reasoning that because the accused is a person who engaged in illegal activities or possessed weapons, he is, therefore, the type of person who is likely to have committed the crimes charged.20 You would quickly appreciate that this would be a very unfair and inappropriate line of reasoning. You must not reason that because of these other activities, the accused is the type of person who is likely to have committed the offences charged. You must only use the evidence in the way I have described. It provides the setting for the accused’s

travel and explains why he was on the road that weekend. It is evidence from which you may draw conclusions, if you see fit, as to the accused’s driving experience, knowledge of the roads and ability to drive long distances without rest. As to the possession of a weapon and habit of carrying a weapon, the Crown puts this evidence forward as demonstrating that the accused had the capacity to carry out the crime of murder by shooting Mr Falconio. The Crown seeks to link that evidence [page 260] with the accused’s practice of carrying a weapon on his trips, to prove that the accused could well have had such a weapon with him on this occasion. Now, ladies and gentlemen, as to Ms Lees’ evidence, you will appreciate if you accept her evidence that the only time she had an opportunity to see the weapon was when the offender confronted her with it, and as he moved into the Kombi van and put it to her head. She told you that as the man moved into the Kombi she was concentrating on the man’s face and not upon the gun. Ms Lees said that through the window of the driver’s door she saw it was a silver gun. A few moments later when the man was in the Kombi Van and pointed the gun to her head, she got her best sighting of it. She did not ever see the butt of the gun or the trigger. This was her description: It’s a silver revolver; I’d never seen a gun before. To me it looked like a western type gun, it had … it had engraving on it which was in a rectangular box that was down the barrel of the gun. Later in her evidence, Ms Lees said the barrel was shining and she demonstrated the length of the barrel by the length of her hand which was then measured at about six to seven inches. Six inches is approximately 15.25 cm.

Ms Lees went through the same process with the artist as she did with the drawings of the vehicle and the drawings of the gun are in Exhibit P31. During cross-examination Ms Lees told you she could not give a description of the scrolling. She just described it as scrolling engraved along the barrel. She agreed that on 15 July she told the police that the gun had a scroll like pattern without words or symbols engraved in a box like border. As to whether the pattern on the final drawing is a fair representation of what she saw, Ms Lees said she could not say. She added that it was not a good representation, but it was hard to describe and she could not remember vividly what the engraving was, only that there was some engraving. As to whether what is seen in the drawing is similar to what she saw on the night, Ms Lees responded that it was similar. Well, ladies and gentlemen, Mr Hepi only saw two dark coloured guns, that is hand guns. Mr Johnston did not see a silver hand gun. Two witnesses spoke of the accused and a silver hand gun. First, Ms McPhail who said she told the accused she had always wanted to buy a pearl-handled lady’s gun. She said the day after they had the rest at the head of the Bight, when they came to the quarantine station the accused told her to go ahead. She did so. Later as she passed a sign indicating she was entering the Iron Triangle, she saw the accused stopped on the side of the road. She told you he was stopped in the dip where you could not see him until you were right there. According to Ms McPhail she came up behind the accused and stopped. He had the passenger side of the vehicle open and when she went around to that side the accused pulled out a small gun and offered to sell it to her. Ms McPhail described the weapon as a silver palm-sized revolver. She declined the offer and she told you the accused fired a shot into the bush. She said the weapon had a short barrel and she did not recall seeing any ammunition. The accused denied there was any talk at any time about Ms McPhail wanting to buy a weapon. He said his last contact with Ms McPhail was west of Ceduna. He mentioned

[page 261] Penong. He denied meeting later on the side of the road and showing Ms McPhail a weapon. The accused said he did not own a silver hand gun. As to whether you should or should not accept the evidence of Ms McPhail, you are entitled to bear in mind your impressions of her as a witness. Did she impress you as quite forthright and natural or did she try and evade answering questions? Apart from a suggestion that they may have seen each other in some general way in Broome, there is no suggestion in the evidence that Ms McPhail knew the accused or would have any reason to be other than truthful with you about those events generally and, in particular, about the weapon. Counsel for the accused suggested you should have serious concerns about the reliability of Ms McPhail’s evidence. He mentioned her consumption of alcohol and drugs. Obviously that is a relevant factor for your consideration and that is your consideration of the capacity of Ms McPhail to take in events that were occurring around her and to later accurately recall them. We all know the consumption of alcohol and drugs can have an adverse impact on our mental faculties. As to the evidence about the gun specifically, counsel suggested that the story is simply unbelievable. Mr Algie put to you that, unprompted and out of the blue, here was Ms McPhail telling the accused she had always wanted to buy a pearl handled ladies handgun. In addition Mr Algie posed the question as to why the accused would be parked on the side of the road with a weapon out as claimed by Ms McPhail. He pointed out that she was way out with her times in connection with travel from Ceduna to somewhere in the Iron Triangle. In response to those suggestions, Mr Wild put to you that the whole episode of travelling together is bizarre, yet the accused agrees with all of it except those bits that hurt him. So says Mr Wild, why would you doubt that Ms McPhail is telling the truth about a part of this episode that might otherwise seem unusual. Well, ladies and gentlemen, as always, it is a matter for you. If you

have a doubt about her reliability with respect to the weapon, then you would put Ms McPhail’s evidence aside. On the other hand, if you were satisfied she is telling the truth, the Crown asks you to infer that the accused owned or was in possession of a silver hand gun late in June 2001 which is consistent with the weapon seen by Ms Lees. If you are satisfied the accused was in possession of such a weapon, that would be another piece of circumstantial evidence to be considered, in conjunction with the rest of the evidence. The other witness who spoke about the silver hand gun was Rachael Maxwell. She told you of an occasion when the accused and Mr Hepi were sitting at a table at Mr Hepi’s place in Sedan. She walked in and there was a revolver on the table which she described as about 21 cm in length. She said it was silver-chambered, a revolver with a swinging chamber. A wooden handle. She described it as an older style gun like a country and western weapon and she was thinking of John Wayne. The Crown, of course, put to you that that is very consistent with the description given by Ms Lees. During cross-examination, Ms Maxwell gave the following evidence: What was happening with the gun, was it just sitting on the table or was it being passed between the two of them? — I’ve just — it was sitting on the table when I walked in, yeah. Like in between both of them. Just sitting there? — Yeah. [page 262] So, neither of them were touching it? — Not that I recall. I honestly didn’t take much notice, if you know what I mean, of what they doing. I just seen that and went in and walked back out. And neither of them were saying anything about the gun? — I don’t know. I seen the gun and I just went, okay, that’s not my

business, you know what I mean. Yeah. Because I suggest there was never an occasion where Mr Hepi and Mr Murdoch had a silver gun sitting on the table? — Okay, well, that’s what I seen. And I suggest there was never an occasion when you saw Mr Hepi and Mr Murdoch with a silver gun? — Well, that’s what I seen, yeah. Ms Maxwell was then asked about the accused’s appearance and, in particular, his moustache. And the questioning then returned to the issue of the gun: Just finally, in relation to this silver gun, could it have been that it was Mr Hepi who had the silver gun? — It could well have been. I honestly don’t know whose it was. It could well have been James’, yes. And I guess what I’m suggesting is could it be, if you actually saw a silver gun, you saw it with Mr Hepi and Mr Murdoch wasn’t even there? — It could well. I’m pretty sure they were both there but, yeah, it could. Might it’ve been just Mr Hepi? — Yeah. Well, ladies and gentlemen, the accused denied in evidence that there was ever any such occasion. You heard from that evidence that Ms Maxwell said she was pretty sure they were both present, but she agreed it might have been just Mr Hepi. What you make of that evidence is for you. In considering that evidence, you are entitled to take into account the evidence, if you accept it, of Ms McPhail. Finally, in connection with the weapon, I remind you of the evidence of Mr Hepi and Mr Johnston that the accused regularly carried a hand gun with him on his trips. The accused agreed he did so for protection because in one direction he was carrying large quantities of money and in the other, a large quantity of cannabis. The accused said he had the 357 with a very large dark grey barrel

and a black 38 Beretta. He said he has never owned a silver revolver or a. 22. He told you that he did not always carry a weapon, but when he did so it was either in the fuel tank or under the seat or in the side of the door panel. Ladies and gentlemen, as you appreciate, it is the Crown case that [the] accused shot Mr Falconio with a small calibre weapon that did not cause a large amount of bleeding. On the evidence, if you accept it, such a weapon could be a. 22 revolver. If you are satisfied the accused owned a silver hand gun consistent with the weapon described by Ms Lees, and if you are satisfied the accused regularly carried a weapon with him on the trips, it would be open to you to find that the accused had means by which to carry out the murder of Mr Falconio in the circumstances put forward by the Crown. If you find that to be a fact, then the fact that the accused possessed such means does not, in itself, prove he committed the murder, but it is a piece of circumstantial evidence to be considered in conjunction with the rest of the facts. [page 263] Are you satisfied he owned such a weapon or do you have a reasonable doubt about it? This comes back to your view of Ms McPhail and Ms Maxwell and you have heard counsel’s submissions. Ladies and gentlemen, the next category I’m to turn to is the conduct of the accused after the events at Barrow Creek and this might be a convenient time to take a 10 minute break. ADJOURNED HIS HONOUR: Ladies and gentlemen, in trying to get to the break for you, I did not quite complete what I wanted to say at the end about the weapon. If you are satisfied that the accused owned a weapon of the type or was in possession of a weapon of the type described by Ms Lees, as I said, that would be a piece of circumstantial evidence to take into

account. If on the other hand there is a reasonable possibility the accused did not own such a weapon, or that no one had seen such a weapon in the possession of the accused, then the Crown will have failed to prove this piece of circumstantial evidence. In addition, you will be left with evidence that the accused owned two dark-coloured weapons inconsistent with the description given by Ms Lees. If that is the situation, that would be a piece of circumstantial evidence tending against the view that it was the accused in the four-wheel drive at Barrow Creek. 4.32

The next topic relates to the evidence concerning the accused’s conduct after he returned to Broome, and whether an inference could be drawn that he changed his appearance, and the appearance of his vehicle, to avoid being suspected of the murder of Falconio, or whether there was an innocent explanation for his actions.

HIS HONOUR: Now to the conduct of the accused after his return to Broome. The Crown puts to you that the conduct of the accused was demonstrative of a man who knew that his appearance and the appearance of his vehicle could connect him to the events at Barrow Creek and who has endeavoured to distance himself from those events. On the other hand, counsel for the accused suggested that there were other possible explanations for the accused’s conduct. The accused was always changing his appearance and making alterations to his vehicle. Ladies and gentlemen, this evidence requires very careful consideration before you can reach the view put forward by the Crown. There are two aspects of the accused’s conduct upon which the Crown relies. First, the behaviour of the accused when he arrived back in Broome, particularly the changes to his appearance. Second, the changes the accused made to his vehicle soon after returning to Broome and in the following months. When you come to consider this evidence, you will need to examine the accused’s conduct very carefully and consider whether they may be innocent explanations for that conduct. If the accused behaved in an unusual way, you must consider whether he might have done so for a

reason or reasons other than attempting to distance himself from the events at Barrow Creek. As you know, the accused was involved in the business of cannabis and for that reason alone he would have good cause to be nervous about police and being caught up in an investigation of this matter. He had good reason to avoid roadblocks or quarantine stations. The combination of circumstances might have caused him to panic. [page 264] In addition, the accused was aware that police were looking for someone driving a four-wheel drive with a canopy which might have been thought to be similar to the canopy on his vehicle. In those circumstances, if he was innocent, the accused might nevertheless have a good reason to be worried or to panic. So, ladies and gentlemen, you must first determine the nature of the conduct. Second, you must consider all possible explanations for that conduct. Third, you can only use the conduct in the way advanced by the Crown, if you reject all possible innocent explanations for the conduct and you are satisfied that the accused engaged in the conduct because he realised that, unless he changed his appearance or the appearance of his vehicle or both, the appearance or appearances of the vehicle and of his person, would implicate him in the murder of Peter Falconio. If you are satisfied that his conduct was motivated by concern that the appearances would implicate him in those crimes, you may use the evidence as circumstantial evidence to be considered in conjunction with the other proven facts.21 The witnesses who can assist you as to the accused’s conduct immediately on his arrival in Broome are Mr Hepi and Ms Allan. Mr Hepi told you the accused was scattered. By that he meant the accused had obviously taken a lot of amphetamine to stay awake for many hours and he spoke about erratic movement and obvious nervous tension. Ms Allan told you she saw the accused earlier in the week when he told her that it had not been a good trip. He had said there

had been a few dramas, he suspected someone had been following him and he had had to deal with it. Ms Allan did not ask what he meant. According to Ms Allan, the accused told her he was forced to come a long way because of roadblocks looking for Mr Falconio. Ms Allan described the accused as not very happy, very strung out and very stressed. Ladies and gentlemen, bearing in mind that the accused was, colloquially speaking, running cannabis, and taking into account the Crown case that he had covered a very long distance in a few hours with the assistance of amphetamines, you could not use his scattered condition, if you accept he was in that condition, as in itself indicative of the accused’s guilt. On the Crown case there is an alternative and reasonable explanation for his condition. Ms Allan told you it was not unusual for the accused to be appearing almost exhausted on his return. She agreed that sometimes he would return looking worn out, tired and drawn. She agreed he would look stressed and worried because of the possibility of being busted by the police. As Ms Allan put it, ‘What they were doing was a fairly stressful little business, wasn’t it’. As to the question of the accused’s condition, however, you also have the evidence of the accused. In substance, although the accused said he was concerned when he heard from Mr Jamieson about the Barrow Creek events and about the roadblocks and how he might have got caught up in it with drugs on board, the accused told you that the trip was uneventful and he just plodded along. He stopped for periods of sleep. There were a couple of occasions when he took a little amphetamine, but on his version he was not scattered on his return and he denied telling Ms Allan that there had been a few dramas. He denied telling her he suspected somebody had been following him or that he had had to deal with it. [page 265] Well, ladies and gentlemen, you have seen and heard Ms Allan and

the accused. Are you satisfied that Ms. Allan told you the truth or is it reasonably possible she has got this wrong? According to the accused Ms Allan is wrong about this conversation and about the accused’s condition when he returned home, as well as being wrong about whether there were mesh sides on the canopy when she travelled to Wyndham with him. The accused says that Ms Allan is wrong, in her evidence, that at his home the accused showed her the Western Australia newspaper and spoke of his father. Well, ladies and gentlemen, what was your impression of Ms Allan as a witness? The Crown puts to you that Ms Allan was quite accommodating, but was a very honest and straight forward witness. On the other hand, Mr Algie suggests you should have cause for concern about her evidence. Well, it is a matter what impression what you gained of her evidence and whether you can discern anything in her or her evidence to cause you to doubt the reliability of what she has told you. 4.33

The Chief Justice directs the jury on the use which can be made of the accused’s evidence, and deals with the suggestion by Wild that the accused has tailored his evidence to fit the Crown case.

HIS HONOUR: It is unnecessary for me to canvass the details of the accused’s evidence about his trip. Mr Wild put to you that the accused has tailored his evidence to meet the Crown case. He said the accused has had the opportunity to do this because, unlike other witnesses, prior to the trial the accused has had available statements and evidence of witnesses and he has sat in court during the trial and listened to the evidence. Ladies and gentlemen, it is correct that the accused has had the material and heard the evidence, but I remind you that every accused receives the Crown material and hears the Crown evidence at the preliminary examination. Every accused sits in court at the trial and hears the trial evidence because it is a fundamental requirement that in the absence of special reasons, an accused person be present in court

when the evidence is given. In the absence of special reason the law requires that every accused including the accused before you, be present throughout the trial. As I said at the beginning of my summing up, you should approach the evidence of the accused in exactly the same way as you approach the evidence of all other witnesses. You may accept or reject any part of the accused’s evidence just as you may accept or reject any part of the evidence of any other witness. The requirement that you approach the evidence of the accused in exactly the same way as any other witness carries with it the requirement that you should not approach the evidence of the accused with any assumption that because he is the accused, or because he has heard the Crown evidence, he is therefore not likely to be telling the truth or likely to have tailored his evidence to meet the Crown case. To approach the accused’s evidence in this way would be to undermine the presumption of innocence and to treat him differently from other witnesses. You do not approach other witnesses with any assumption that they are not telling the truth, and you should not approach the accused’s evidence with that assumption in mind. So, returning to the question of the accused tailoring his evidence, just as you are entitled with any other witness to consider whether a witness has tailored their evidence, you are entitled to consider that question with respect to the accused’s evidence. Just as [page 266] you are entitled to consider Mr Algie’s submission that Ms Lees has moved in her evidence because she knows there is no front to rear access in the accused’s vehicle, so you are entitled to consider Mr Wild’s suggestion that the accused has tailored his evidence to meet the Crown case. It is a matter for you whether you are able to find signs that the accused has in fact, tailored his evidence and whether, in your view, in the light of those signs you are satisfied that he has in fact tailored his evidence in the way suggested by Mr Wild.

I need not canvas the details of the accused’s evidence about that trip. He told you about his various stops and rests and sleeps that he had all the way through to Fitzroy Crossing. He was carrying about 23 pounds of cannabis. He talked about avoiding entering Alice Springs on Friday night, and similarly of arriving in Broome at a time he would not draw attention to himself. The Crown put to you, however, that the accused’s version about his trip just cannot be accepted. It is the Crown case that you should reject the accused’s evidence that he was just plodding along. This was a man carrying a large load of cannabis who would hardly be likely to be plodding along in a way he described. This, said Mr Wild, was a business trip and no occasion for playing Tommy the tourist. The accused has demonstrated in his past trips when he was on the road for business that he would get there and back as quickly as possible. Mr Wild put to you that the accused would not have spent so many hours in Alice and his evidence about times and distances simply does not match up. Mir Wild urged that the accused was embellishing his evidence to suit his purposes. He suggested that you should reject out of hand the accused’s evidence about travelling over corrugations. On the other hand, on behalf of the accused Mr Algie put to you that this was a man who was not in hurry because he did not want to draw attention to himself. He adjusted his travelling times and speeds in order to arrive in Alice Springs and Broome at the right times. And he was travelling slowly to avoid accidents or bringing attention to himself. Mr Algie suggested there was no hurry on this occasion and as the other evidence establishes, the accused was following his usual practice of looking after his vehicle. In addition, said Mr Algie, he was towing a new campervan. In this context, you will recall the evidence of the accused about taking his new campervan across the Tanami knowing that on the previous occasion, in May, when he wanted to use the Tanami, it had been closed and also in view of his experience that the Tanami was always rough. The accused responded that rough roads are what offroad campers are built for and you don’t drive them up and down the bitumen.

Well, ladies and gentlemen, what do you make of the accused’s evidence about his trip on this occasion? What is your view of his evidence about corrugations, plodding along and cattle delays? Are these reasonable explanations as urged by Mr Algie? Or, as the Crown puts it, are you satisfied he was giving you an untrue account which is inherently implausible? It is also a matter for you how the accused’s evidence of a plodding trip with rests and sleeps does or does not fit with the evidence of Mr Hepi and Ms Allan. If you accept the evidence of Mr Hepi and Ms Allan about the accused being scattered or very strung out and stressed, what does that tell you about the nature of the trip that the accused had just undertaken? Or is the accused’s version a reasonable possibility? I return to the question generally of the accused’s conduct upon his return to Broome. As I understand the Crown case, what is put to you is not so much that the accused’s stress is, in itself, indicative of the accused having been involved at Barrow Creek. But it is the combination of his condition and his appearance and behaviour on return considered [page 267] in conjunction with him changing his personal appearance and the appearance of his vehicles that should lead you to a conclusion that, at the least, his behaviour is consistent with him having been involved. As to changes in personal appearance, Mr Hepi told you that when the accused arrived in Broome in the early hours, Mr Hepi noticed the moustache was already shorter and the accused’s hair had been cut. He told you that during the day there was a further change. The moustache came off completely and the hair went back to a number one or number two. Now, of course, Mr Hepi was cross-examined about these changes and it was put to him that there was nothing unusual because this was the business they were in. Mr Hepi agreed there was nothing unusual

about changing appearance, but he said it was unusual to the extent of going from full moustache to no moustache. He said he had not known the accused to shave off the whole lot before. Mr Hepi was then confronted with his statement to the police when he said: At other times, Brad would grow it into a full beard or a goatee and then shave it completely off. Brad went from full facial hair to no facial hair to everything in between! The time that I knew him, Brad would always keep his mousy not quite grey, not quite black hair short. Well, Mr Hepi agreed he made that statement, but he maintained that it was quite unusual to see the changes done so dramatically and very quickly upon arrival at home. In assessing the reliability of the evidence of Mr Hepi, obviously you should take into account his statement and consider whether it is inconsistent with his evidence to you. Ms Allan told you that when the accused left on this trip he had a bushy handlebar moustache with hair short to the nape of the neck. When she saw him early in the week of his return, in her words, he was completely clean shaven, no moustache, shaved his head. By shaved his head, she meant completely crew cut. During cross-examination, Ms Allan agreed that the accused was almost obsessive about not getting busted by the police. However, when it was put to her that the accused regularly changed his facial appearance, Ms. Allan responded, ‘Not to my knowledge, not in the time that I knew him’. She said she knew him close to a period of over 12 months or so and that during that time, he had always had a moustache. She disagreed with the proposition that the accused would go from a full beard to a moustache, sometimes a goatee and sometimes clean shaven. She said she had not seen the moustache shaven off during the previous 12 months. Well, the accused told you that as at 14 July his hair appeared like a number three or a number four cut. He said he had a moustache and

indicated it stretched below the corners of the mouth to the line of the jawbone. He told you the changing of his appearance on his return to Broome was just part of the usual routine. He denied that he had possessed a moustache throughout the whole of 2001 until he returned from that trip in July. He disagreed with the evidence of Ms Allan. The accused told you, ladies and gentlemen, that he did not shave his moustache off immediately upon his return to Broome. His evidence is in conflict with the evidence of Mr Hepi. The accused said it could have been a couple of days or three days after his return. When it was put to him that he was clean shaven when he saw Ms Allan, the accused replied, ‘Not two days after, it could have been three days after’. He went on to deny that he was clean shaven when he saw Ms. Allan. He told you that he still had [page 268] his moustache when he saw Ms. Allan and not only was she wrong about him being clean shaven, she was wrong about a lot of things. The accused also denied that he had already trimmed the tips of his moustache by the time he arrived home. He disagreed with the evidence of Mr Hepi. He also disagreed with the evidence that he immediately shaved his head. He said it was the second or third day after his return. Well, ladies and gentlemen, again, as always, it is a matter for you whether you accept the evidence of Mr Hepi or Ms Allan or both or whether you have a doubt about their evidence. If you accept their evidence, and in the light of the other evidence about changes in appearances, if you are satisfied this was not a change simply as part of the normal practice in connection with the drug business, then you may use the change of appearance as a piece of circumstantial evidence.22 As to the changes in the vehicle, the accused told you that all of the changes had been planned almost from the time he bought the cruiser

in March 2001. He said he talked it over with the boys in the workshop for a couple of months before he did anything. The bull bar, tray extension, canopy and turbo were all discussed and were all part of his plan. He said it was in this context he started work in preparation for other work. He took out the fuel tank, the mesh sides were taken off, the bull bar was taken off and finding a replacement bull bar was one of the first things he did with Mr Minshull after his return from this trip. As to what happened to the bull bar, that is the bull bar that was on when he did the trip in July, the accused told you he sold it to one of the workers who was renting a unit in a set of units in which the accused was living in Adelaide. He said it was a reasonable bull bar, but it was a bit heavy and he was not doing any more long trips, therefore he did not need it. He bought a brand new ARB bull bar. As to why he changed the plates on one of the vehicles, the accused said he changed vehicles over. It was something to do; there was nothing illegal about it. There was the vehicle he owned and the vehicle Mr Kotz owned and they were chopping and changing parts around. As to why he needed to change the plates inside the vehicle, the accused said, ‘So it just keeps the standard of the vehicle’. The accused disagreed with the suggestion that he disguised the vehicle. He said the chassis number was not changed. It was put to the accused that when he purchased a 79 series he set about changing its identity. He agreed he changed a few things on it but denied it was to change the vehicle’s identity. He agreed that changes previously were to avoid being identified by authorities and other people who might want to make him a target. In the context of his evidence that he stopped doing runs in 2001, that is, Christmas 2001, the accused was asked why in 2002 he was still going through the exercises of disguising his vehicle. He replied that he had stopped his drug running to Broome in 2001, but was still running cannabis into Perth and he did some trips. Ladies and gentlemen, you have heard about the changes to the accused’s vehicles from a number of witnesses and how over time there were discussions about improving the 75 series. You have also heard about substantial changes to the vehicles from Benjamin Kotz and

Detective Sergeant Connor. What do you make of that evidence? Mr Algie put to you that these were just part of the accused’s practice of always changing his vehicles either because of the business of running cannabis or simply [page 269] because of his interest and hobby. This was a project said Mr Algie, that was put in place before July 2001, and later the accused was just trying to help Mr Kotz out. Mr Algie put to you that the accused could have got rid of the vehicle entirely and that in reality after the work was done, he was left with a white 75 series with a green canopy and a bull bar. Mr Wild reminded you that the aluminium was not ordered until the end of July, that is, the aluminium that was used to construct the final canopy. He said this was contrary to the suggestions in the recorded phone calls. Mr Wild put to you that from March to July the canopy was changed, the mesh sides removed and the bull bar changed, but these were minor changes compared with the massive changes that occurred afterwards. He suggested that in the next year there were complete transformations and changes of identification. This was a rebirth designed to disguise the identity of the vehicle and make it impossible to work out what happened. In addition to those massive identification changes, Mr Wild put to you that there was a new canopy that looked nothing like the canopy in the truck stop video and a bull bar that did not match the vehicle in the video. This, said Mr Wild was the accused endeavouring to distance himself from the events at Barrow Creek. Well, ladies and gentlemen, what conclusions, if any, are you prepared to draw from the conduct of the accused after his return from that trip and in the weeks and months following? First, you must be satisfied as to the nature of the conduct. It is only when the conduct is proven to your satisfaction beyond reasonable doubt, that you can take

the next step and consider what conclusions you are prepared to draw from that conduct. It is the accused’s conduct in its entirety which you should consider. Please remember that it is only if you reject all other explanations, and find that those other explanations advanced are not reasonably possible explanations, that you can move to a finding beyond reasonable doubt that the accused was endeavouring to distance himself from the events at Barrow Creek. Ladies and gentlemen, I am now about to turn to a topic under the heading of ‘Connection to the Scene’ which relates to the DNA. We will continue this tomorrow. Can I tell you, ladies and gentlemen, that I will be sending you out to consider your verdict somewhere around lunch time tomorrow, so please make your arrangements accordingly. You are now retired and we will resume at 10 o’clock in the morning, thank you. HIS HONOUR: Ladies and gentlemen, a minor correction from yesterday. When I started dealing with Mr Hepi’s evidence about the bull bar, I think I said that it was his evidence that the bull bar shown on the vehicle in P244 came from the F100. That was wrong. He did not say that. What he said was the bull bar shown in P244 was taken off and replaced by the bull bar by the F100. 4.34

In the following passages, the Chief Justice summarises the DNA evidence and the contentions of the parties concerning that evidence. It is important to note that DNA evidence is circumstantial evidence even if odds of quadrillions to one are given. This is because experts do not test the entire DNA of a person, and also because of the possibility that the DNA is casual DNA, explicable on some basis other than that the off ender was present at the precise time of the murder. The first question put by the Chief Justice is whether the DNA was in fact found on the individual item. This requires proof that the DNA did not come from some other source or was not deliberately or accidently placed on the item in question.

[page 270]

HIS HONOUR: So, turning to the DNA evidence. As you appreciate, it is the Crown case that you should be satisfied that the DNA from the accused was found on Ms Lees’ T-shirt, on the knob from the Kombi gear stick and on the tape from the cable tie restraints. For various reasons, which I will mention as I discuss this evidence, counsel for the accused suggested you should have a doubt about the reliability of the DNA evidence. Before I turn to the specifics of the DNA, I want to say something briefly about expert evidence. As with all experts, you may accept or reject any of the evidence that has been given to you by expert witnesses in connection with the DNA. In connection with this evidence, however, I suggest you must put aside the flamboyant suggestions of counsel, that we do not need experts from the mother country teaching us colonials how to do things. Or, for that matter, that the British and people of the Commonwealth are capable of teaching the FBI a few things. Entertaining, no doubt, but not to the point. Nor is it to the point to look back at other cases in which experts have given evidence that has proven to be wrong. That is not to the point either. There is always the potential for any witness, including an expert witness, to be wrong. That is why you look at all the evidence, not just the expert evidence. That is why witnesses get into the witness box, give their evidence and are tested in cross-examination. That is why expert witnesses explain their science to you and explain their methodology to you and how they arrive at their conclusions. All of this [is] to enable you to assess the credibility and reliability of the particular witness and their evidence and to determine whether you are satisfied that the particular witness is accurate or whether you have a doubt about it. Please put aside all the hyperbole and concentrate on the evidence before you. The other matters are these: Mr Wild suggested that in some instances Crown expert witnesses had not been given the opportunity to comment on what the defence knew their experts would say and that this was unfair. Ladies and gentlemen, in a case with as much evidence as this one, sometimes counsel overlook putting matters to opposing witnesses or material comes in late after opposing witnesses have

finished. There is no suggestion in this case that the accused or his advisors have deliberately held things back in an unfair way to ambush the Crown and you should not draw that implication from Mr Wild’s remarks.23 Second, while praising the qualifications and experience and expertise generally of the defence experts, Mr Wild did pose the question as to whether they might not be happy about younger experts coming along. Again, ladies and gentlemen, just a little counsel flamboyance. Not intended to suggest that the defence experts are biased in some way against the science of views of the younger generation of experts. Mr Wild was really suggesting that perhaps they have been overtaken by new methodology. I suggest that when consider this evidence, you keep in mind three fundamental questions that apply to each of the three items of the DNA. And I am leaving aside the steering wheel for a moment. I will mention that shortly. But it is the other three items that are the critical items for your consideration. So, three questions: first, are you satisfied that DNA matching the DNA of the accused was found on the individual item? Second, if you are so satisfied, are you satisfied that the accused was the source of the DNA or is it a reasonable possibility [page 271] that someone with an identical DNA profile was the source? Third, if you are satisfied it was the accused’s DNA on an item, are you satisfied that the DNA came to be on the item because of contact in the course of the accused attacking Ms Lees and shifting the Kombi into the scrub? Or, in the case of the cable ties, because the accused made them. Or is it a reasonable possibility that the DNA came to be on the item through an innocent cause such as innocent contact between the accused and Ms Lees in Alice Springs or through some form of contamination, either deliberate or accidental?

The other matter about which I wish to remind you in connection with DNA evidence, is that DNA evidence is a form of circumstantial evidence. As I said to you during the trial, DNA evidence is not like finger print evidence where the finger print expert gives evidence that the finger print at the scene is the finger print of a particular individual. As Ms Eckhoff explained, the forensic scientists do not examine the entire DNA of an individual and compare it with the entire DNA, if it is available, from a stain at the crime scene. The examination is done at particular sites of the DNA that are known to vary widely between individuals. So as Ms Eckhoff explained, because they only test part of the DNA, neither she nor Dr Whitaker give an opinion that the DNA came from a particular person. The opinion is given that the DNA could have come from the person and a statistical calculation is made as to the likelihood that the DNA came from the particular person as opposed to someone else chosen at random from the community. Ladies and gentlemen, one of the issues that has been the subject of a considerable quantity of evidence about the DNA is the possibility of contamination of items or samples which were analysed. In a moment I will come to the particular exhibits and samples and the question of whether it is reasonably possible that they were the subject of contamination. But speaking generally for the moment about the issue of contamination, counsel for the accused put to you that there are features associated with the work done and the laboratory generally in Darwin which should cause you to have a doubt about the reliability of the evidence. He suggested you could not have confidence in a laboratory in which the Director contaminated an important exhibit with his own DNA. Counsel referred to the fact that it was an old laboratory which was not accredited and had poor record keeping which failed to keep track of the movement of the cable tie handcuffs. Still speaking generally, you have the evidence of Officer Spilsbury, Cnst Sandry and Ms Eckhoff about their training and practices in the area of collection of evidence and the avoidance of contamination. That does not necessarily mean that they could not have caused or permitted contamination. You have a very good example of how contamination can occur in the case of Dr Thatcher. You do not need

experts to tell you that mistakes can sometimes occur. But you are entitled to bear in mind that the people involved are trained in procedures designed to avoid contamination and they are alert to the possibility of contamination while carrying out their work. In addition, you will have formed your own impression of those witnesses individually and of their competence and reliability. Part of the evidence before you concerns the conditions in the old laboratory where the work was done in July 2001. The move from the old laboratory to the new one occurred in October 2001. As to the conditions in the old laboratory and whether those conditions increased the risk of contamination, Ms Eckhoff said that although the situation in the old laboratory was not ideal, particularly from an occupational work health and safety point of view, in terms of the scientific work that was carried out the laboratory was operating to a level that justified accreditation. Because she and others in the old laboratory appreciated the risk of contamination, they put in place protocols [page 272] to minimise the risk such as always using sealed containers and putting them in the freezer and locking the freezer. If you accept the evidence of Ms Eckhoff, from a scientific point of view the laboratory was operating to accepted scientific standards in connection with measures to avoid contamination. Ms Eckhoff said the old laboratory was subject to inspection by NATA accreditors and there was never any question prior to 2001 about the scientific methodology employed. Nor was there any doubt raised about the result of the work. Efficiency tests carried out by an outside agency resulted in a 100% success rate. Ms Eckhoff told you that with each sample, both negative and positive controls were run to ensure that there was no contamination. This is part of the accepted methodology of checking each examination with a view to picking up contamination. Doctor Whitaker and Mr Pearman24 were also asked about the layout of the old laboratory by looking at P201. They agreed the layout

was not ideal and the risk of contamination is increased in less than ideal conditions. However, you might recall that Dr Whitaker said that the layout was perfectly acceptable if appropriate working practices were in place and adopted. In particular, he said the extraction and the fume cupboard did not present any problems and commented that, ‘We used to do that’. He agreed that because air was being sucked into the fume cupboard, it might bring dust particles carrying foreign DNA. It is unnecessary for me to canvass the details or the issues raised by counsel. They have been discussed with you and you will draw your own conclusions. In connection with the handling of exhibits, your attention was also drawn to what Mr Algie suggested were inadequate practices with respect to recording the movement of exhibits. This was reference to the log in the forensic biology laboratory in which the movement of exhibits was recorded. Well, ladies and gentlemen, you will make what you will of the submissions that were given to you about the movement log and about the explanation for why there were no further entries after 8 October 2002 about the movement of the cable tie handcuffs. You will recall that Dr Thatcher and Monique Holland25 explained how that came about. You will also recall that you were told that the decision to delete the entry was made by Dr Thatcher, but there was a record of the fact that the deletion had occurred. This is not a case, if you accept the evidence of Dr Thatcher and Ms Holland, in which the deletion could be made without anybody knowing about it. The fact of the deletion and the reason for it are recorded on the log so that anyone who looks at it later can see the entry has been deleted. With respect to the handling of exhibits and samples including those with which you are concerned, Ms Eckhoff told you that it is standard and acceptable practice within the scientific community to place exhibits or samples in heavy duty brown paper bags in order to avoid contamination from outside sources. Doctor Whitaker and Mr Pearman were also of that view. There is no evidence to the contrary. Ms Eckhoff told you that in the Northern Territory brown paper bags are preferred to plastic because plastic tends to sweat. Mr Pearman also expressed that view. According to Ms Eckhoff the bags are rolled

over twice, that is in 2001 they were rolled over twice. These days they are stapled to ensure the sealing. According to Ms Eckhoff, if a paper bag containing an exhibit or sample was received in the laboratory in a torn or [page 273] damaged condition, there would have been a note made of it. Ms Eckhoff explained how things are stored one on top of the other. As long as they are in brown paper bags of this heavy duty quality, then in her view there is no risk of contamination. Ms Eckhoff also told you that once a sample like the material from the T-shirt is taken from the original exhibit, it is put into a tube and sealed. If you accept that evidence, that would be very relevant to your consideration of whether contamination could occur after an item was in a sealed tube. You also had evidence from Mr Sandry and Ms Eckhoff about the cleaning of the benches and the use of gloves etc, all of which are designed to avoid the possibility of contamination. Ladies and gentlemen, counsel have made their points to you about whether the systems and practices were appropriate and whether you should have a doubt about the standard of the laboratory generally, and in particular, about the reliability of the work carried out and results obtained, I need not go through those points again. While the adequacy or otherwise of the systems is a relevant matter for you to take into account, the critical question is, of course, not whether the system was faulty or less than ideal, but whether you are satisfied beyond reasonable doubt that the results of the individual samples are reliable or whether there is a reasonable possibility that some form of contamination has occurred which casts doubt upon the results. Ladies and gentlemen, finally as to general remarks about contamination, you may care to bear in mind that what you are considering is not the possibility of contamination by a piece of dust or harmless fluff. Nor are you considering the possibility of contamination by an examiner’s DNA. You are considering the possibility of

contamination by a substance containing DNA matching that of the accused and that is matching either a full or partial profile. While contamination by Dr Thatcher is relevant to your consideration of the overall standards and to the possibility of mistakes being made, it is not contamination from Dr Thatcher or other people involved in the investigation and scientific work which is in issue. What is in issue is the possibility that a particular item or sample that was analysed and found to contain DNA matching that of the accused was in some way, either deliberately or accidentally, contaminated by the introduction of DNA matching that of the accused. In these circumstances, you should examine very carefully the evidence with respect to each item or sample and determine, if you can, where the item came from, what was done with it and how the analyses were carried out in order to assess whether there is a reasonable possibility of contamination. First Ms Lees’ T-shirt. You will appreciate that this is regarded by the Crown as part of the linchpin of the Crown case. There does not appear to be any dispute that Ms Lees was wearing the T-shirt that night and that after she took it off, Officer Spilsbury placed the T-shirt in a brown paper bag from where it was transported to Ti Tree and then to Darwin. The T-shirt was received into the laboratory in Darwin on 17 July 2001 in a brown paper bag. According to the notes read by Ms Eckhoff, which were made by the scientist Megan Hibble, when the bag containing the T-shirt was received it was sealed. When I say sealed, there was a tick in the box on the notes to indicate it was sealed. Ms Eckhoff told you that the T-shirt was in a grubby condition with red, brown staining front and back. She noticed hair and speargrass on the T-shirt. Ms Hibble worked on the T-shirt on 17 July and took the extracts which were subsequently analysed.26 I need not canvas all the tests done by Ms Eckhoff. You will [page 274]

recall the areas as shown in the photographs P211 through to 214 and a number of areas tested positive with a presumptive test for blood. Tape lifts from the rear of the T-shirt produced a mixture of profiles. In two of them, the major contributor was Ms Lees and the minor contributor was consistent with coming from Vince Millar. You might consider this in the context of what you would expect to find in the circumstances. As I am sure you appreciate, the main focus of the DNA evidence in connection with the T-shirt concerns point B on the rear of the T-shirt to the top and to the left. The overall view is in photograph P212.27 Could we have that up please. You can see, ladies and gentlemen, point B, the stain and then the stain adjacent on the beginning of the sleeve — and I will come back to this — but you recall Ms Eckhoff said this was one and the same stain because she looked at the folds in the material. The closer view is in photograph exhibit P213.28 Could we have that on the screen please? Now you can see the area from which the sample was taken and the folds in the T-shirt to which Ms Eckhoff referred. Ladies and gentlemen — we will just leave that on there for the moment, thank you. Ms Eckhoff expressed the view that the stain near the letter B and the one on the sleeve were one and the same stain caused by a single event. She reached that view because of the way of the material folded and a match was achieved and a continuum of the stain on the back of the T-shirt. In Ms Eckhoff’s view, that stain does not indicate a flicking of blood. It indicates to Ms Eckhoff a contact and the blood being deposited onto the T-shirt in a liquid form as in wet blood. If you accept that opinion — and it was not challenged — you may think that the nature of the stain and how it came to be deposited on the rear of the T-shirt are significant in assessing the suggestion that it was deposited at the Red Rooster.29 Thank you, that can come down now. Ms Eckhoff told you she obtained a full profile at 10 sites. This was using the standard ‘Profiler Plus’ test kit. However, at that time the

profile did not match anyone. It did not match Peter Falconio, Ms Lees, Mr Millar or Mr Millar’s off-sider, Mr Adams. Ms Eckhoff, in July 2001, was unable to match the profile with any record on databases around the country. In January 2003, Ms Eckhoff used a different test called ‘Identifiler’ which gave the same results across the 10 sites, but added an additional six sites. So from January 2003, Ms Eckhoff had a profile from that stain on the back of the T-shirt across 16 sites. Mr Pearman reviewed Ms Eckhoff’s work and could see no reason to disagree with her interpretation. Mr Pearman did not undertake any statistical calculation, but in his view there was only one individual profile on that stain and there was no indication of a second contributor. It was Mr Pearman who said it was not unusual, particularly if the DNA came from a blood stain, not to find the DNA from the wearer of the clothing, in this case, Ms Lees. Mr Pearman said that the blood stain tends to overwhelm any DNA of the wearer that might have been on the clothing. [page 275] So that was January 2003. It was not until December 2003, that Ms Eckhoff was able to match that profile. This was over two years after Ms Eckhoff obtained a profile across 10 sites and 10 months after she did the additional work across 16 sites. Until December 2003, Ms. Eckhoff did not have the DNA profile of the accused. She received the sample in December 2003 and on 31 December she analysed the sample from the accused and found it was an exact match of the profile from the rear of the T-shirt. It was an exact match across all 16 sites. The match of the DNA profile from the back of Ms Lees T-shirt, from the stain on the back of Ms Lees T-shirt, with the DNA of the accused across 16 sites is summarised in the table Exhibit P215. Could we have that on the screen, please?

Well, ladies and gentlemen, given a match across the 16 sites, what is the significance of that evidence? You have heard the evidence about the databases and the use of statistics and the calculation of probabilities. It is a matter for you to say, taking into account the statistical evidence and all the other evidence in the case, whether you are satisfied that the DNA found on the sample on the back of the Tshirt came from the accused. Ms Eckhoff told you that given the match across 16 sites, in her opinion it is at least 150 quadrillion times more likely that the DNA on the T-shirt came from the accused than from another person in the population selected at random. That opinion was shared by Dr Buckleton from New Zealand whose statement is P286. In connection with Dr Buckleton, I should mention that when his statement was tendered, I said it was an agreed fact. Strictly speaking, that is not correct. His statement was tendered by consent and has not been challenged but, strictly speaking, it is not an agreed fact. We will have that down, thank you. If you accept the opinions of Ms Eckhoff and Dr Buckleton, and bearing in mind all the other evidence in the case, are you satisfied that the DNA on Ms Lees’ T-shirt came from the accused? If I understood Mr Algie’s address correctly, he did not dispute that it was open to you to find that the DNA on Ms Lees’ T-shirt came from the accused and he did not suggest any reason why you should not be satisfied of that fact. As the DNA was extracted from the blood stain, you would also be entitled to conclude that it was the accused’s blood on Ms Lees T-shirt. In my remarks from here on, I will assume you are satisfied that it is the accused’s blood on the rear of that T-shirt. If you are satisfied the accused’s DNA and blood were on the rear of the T-shirt, the next question is whether you are satisfied it came to be there because it was the accused who was the man in the four-wheel drive. Mister Algie suggested to you that investigators have proceeded on the assumption that it was the offender who left the blood on the Tshirt. Whether that was an assumption made by investigators or not is, as with any other assumption by investigators not to the point. It might depend upon the stage of the proceedings, it might depend upon whether an investigator has detailed knowledge or otherwise. All of

those assumptions are utterly irrelevant. The question to be considered by you is whether you are satisfied that the accused’s blood did not come to be on the T-shirt through some innocent or accidental means, but in the course of the accused attacking Ms Lees north of Barrow Creek. On the Crown case, the blood is exactly where you might expect it to be if the accused had forced Ms Lees to put her hands behind her back to be tied in the handcuffs, and after Ms Lees was on the ground, the accused was behind Ms Lees and above her during the struggle. In addition, on the Crown case the accused was behind and slightly to the left of Ms Lees when he took her from alongside the Kombi Van back to his four-wheel drive. In addition, in that movement you will recall the [page 276] evidence of Ms Lees that the offender had his hand at the base of her neck. So, ladies and gentlemen, on the Crown case, at a number of points in the sequence of events, the accused’s blood could well have been deposited on the rear of Ms Lees T-shirt. Ms Eckhoff told you the blood could have come from something as small as a nick. The Crown put to you that the overwhelming weight of the evidence is that the only way the accused’s DNA through his blood could have come to be on the T-shirt is because it was the accused north of Barrow Creek. On the Crown case, there was simply no possibility of some form of contamination occurring before or during the analysis of the sample from the T-shirt. The Crown put to you that any suggestion that the blood somehow came to be on the T-shirt because the accused came into contact with Ms Lees or came in close proximity of her in the Red Rooster, is utterly fanciful and should be rejected by you. On the other hand, counsel for the accused put to you that it is reasonably possible that the blood came to be deposited on the T-shirt in Alice Springs without anyone knowing about it. Mister Algie suggested that they may have come into accidental contact in the Red Rooster without realising it, or perhaps the accused’s blood was left on

a seat or a door frame in the Red Rooster. Nobody would know about [it] and as Ms Lees brushed up against it, there was a transfer of the accused’s blood from such a surface onto the rear of her T-shirt.30 Well, ladies and gentlemen, as with any suggestions to you by either counsel, what is the evidence that bears upon this issue? There are two stages to be considered, first, there is the question of whether the accused’s blood could have been deposited on the T-shirt before the events at Barrow Creek. Second, if the blood was not on the T-shirt before Barrow Creek, could it have been deposited on the T-shirt through some form of contamination after the events at Barrow Creek? Let me deal with the second stage first, because you might think the second stage can be disposed of quite briefly. As I said, counsel for the accused did not advance any reason why you should not be satisfied that it was the accused’s blood on the rear of Ms Lees’ T-shirt. If you are satisfied it is the accused’s blood, then you might think there is no room in the evidence for any suggestion that the blood could have been deposited on the T-shirt some time after the events at Barrow Creek. Put simply, there is nothing in the evidence to suggest that there was any source of the accused’s blood that could account for a deposit of his blood on the T-shirt either at Barrow Creek after the events, or in the laboratory at Darwin. The only place that the accused’s blood has been located is on the rear of the T-shirt. It is a matter for you, but you might think it is not difficult to conclude that the blood could not have been deposited on the T-shirt after the events at Barrow Creek. Even if you were considering a source of the accused’s DNA other than blood, I remind you that the T-shirt travelled in its own brown paper bag to Darwin before Ms Eckhoff collected the samples from the gear stick and the steering wheel. At the time that the DNA was extracted from the T-shirt in Darwin the only other item in the laboratory containing the DNA was, on the Crown case, the handcuffs. No one has suggested the handcuffs could be a source of the accused’s DNA on the T-shirt. [page 277]

So, ladies and gentlemen, I return to what you might think is the critical issue, namely, whether you are satisfied the accused’s blood was deposited on the T-shirt because he attacked Ms Lees at Barrow Creek or whether it is a reasonable possibility that it came to be deposited there in Alice Springs. And when I say Alice Springs, although Mr Algie spoke of Aileron and Ti Tree, you might think the only suggestion arising out of the evidence and submissions is that the blood could have been deposited while Ms Lees was at the Red Rooster. Well, ladies and gentlemen, you might care to consider first whether there is a reasonable possibility that the accused and Ms Lees were in the Red Rooster or in the vicinity of it at the same time. That is the first question. The accused said he arrived in Alice Springs at 10.30 or about 10.30 and went straight to Red Rooster. The Crown says you should simply reject this evidence. Mister Cragan said this was not the sort of place they called in on during these trips and on the Crown case, the accused was well stocked and tended to be self-sufficient in the food department when travelling. The Crown put to you that this is simply an invention to create the opportunity for advancing an argument of innocent contact. Mister Wild suggested the accused chose the time of 10.30 because that leaves open the rest of the day for some sort of transfer to have taken place. On the other hand, counsel for the accused suggested this was just the sort of place the accused could well call into to get food for the planned trip across the Tanami. Well, ladies and gentlemen, if you accept the evidence of Mr Pierson, the man from Repco, the accused was in Repco paying for his purchases at 1.15 pm. There is no suggestion that Ms Lees went to Repco. She said she did not go there. What then of Ms Lees’ movements that Saturday morning? Could she have been at Red Rooster at about 10.30? You know from Maureen Laracy, the accountant, that Peter Falconio kept his appointment with her at 10.00 am. She said the appointment would not have lasted longer than 15 minutes. But bearing in mind that appointment with the accountant was at 10.00 am, what did Ms Lees tell you? Well, in answer to Mr Wild, Ms Lees told you that while Mr

Falconio was at the accountant she went to the library. When Mr Falconio finished with the accountant, he met her at the library and they went off to a cafe opposite the library to have breakfast. After initially saying they went back to the caravan park to have a shower early in the afternoon before going to the Camel Cup, Ms Lees corrected her evidence and said that after having breakfast they went to the Camel Cup where they spent two or three hours. She thought it was around 3.00 pm when he left and went back to the caravan park where she had a shower. She said they left Alice Springs between 4.00 and 4.30 pm. Well, ladies and gentlemen, it is a matter for you, but you might think that Ms Lees was not correct about the sequence in that initial evidence. You know that she rang Ms Whealans at 11.28 am. At 11.28 — and the conversation, I think, lasted about eight minutes — Ms Lees told Ms Whealans that she was waiting for Peter who was having a shower. The conversation came to an end when Ms Lees said Peter was coming back from the showers. You will recall from the cross-examination that there was some issue in Ms Whealans’ evidence about whether Ms Lees said she had been to the Camel Cup or was going to the Camel Cup. Bearing in mind the first race was at 1.00 pm and the evidence of Ms Lees that they missed the first race, are you satisfied that Ms Lees told Ms. Whealans that they were intending to go to the Camel Cup? During cross-examination Ms Lees confirmed that she used the Internet at the library while Peter was at the accountant. She agreed they then went to the Green Frog Cafe [page 278] where they had breakfast. So, ladies and gentlemen, if the appointment with the accountant finished at about 10.15 am, where were Ms Lees and Mr Falconio at about 10.30 am? Are you satisfied that they were in the Green Frog Cafe having breakfast?

Ms Lees agreed they went out to the airport after breakfast to buy the new ticket31 and then went to the Camel Cup. She agreed that after the Camel Cup they went back and had showers. When she was asked whether after the showers they headed north, Ms Lees said, ‘We went to the Red Rooster after the showers’. I may be wrong, but I think that was the first mention by Ms Lees of the Red Rooster. Well again, ladies and gentlemen, if Ms Lees told Ms Whealans at about 11.30 that Peter was in the shower and if they arrived at the Cup after 1.00 pm, they did not shower, you might think, after the Cup. As to the Red Rooster, Ms Lees said they parked in the carpark of the Red Rooster and were not in there very long. The restaurant was fairly empty and it was just enough time to order fast food, sit down and eat it. Ladies and gentlemen, if you accept the evidence of Ms Lees, perhaps some assistance can be gained about times by considering the race times and the beauty pageant. You might recall the first mention of the beauty pageant came during questioning about the races and just after Ms Lees said she had missed the first race. She was asked whether they stayed to the end of the races and she said, almost to the end, and then she added that she remembered they had a bit of a beauty pageant and she saw some of it. Well, the Camel Cup program is exhibit P56. Could we have that on the screen please? The first race which Ms Lees said she missed was at 1.00 pm. The Cup itself was at 2.15; the pageant at 2.30. The last race at 4.15 pm. If you accept the evidence of Ms Lees, they arrived sometime after 1.00 pm, she saw the pageant which was at 2.30 and they left sometime up to the last race. Now you might think that the program is of some assistance to you about timing, if you accept the evidence of Ms Lees. Now, as to going to the Red Rooster. Thank you, I have finished with that. Ms Lees was cross-examined about a conversation with Libby Andrew on 23 July 2001. Ms Andrew recorded Ms Lees as saying they went to the Red Rooster before going to the airport to change the airline tickets and before going to the Camel Cup. Ms Lees said she did

not remember the conversation with Ms Andrew and that all she could say was that they went to the Red Rooster once and that was before they left to head north to Darwin. She said she would not have told Ms Andrew that after going to the Red Rooster they went to the airport to change the tickets, because that would not have happened. Ladies and gentlemen, the notes upon which Ms Andrew relied are those notes on the brown paper bag. I think they are exhibit D12. This was the occasion when, according to Ms Andrew, they had been harassed by members of the media and they ran back to the hotel and then drove out to Hermannsburg. She did not have any book with her to make notes so she used the brown paper bag from the boot of the car. It is not clear from the evidence of Ms Andrew whether she made the notes as they were travelling or after the conversation had taken place. You might recall also in this context that Ms Lees said there were lots of conversations and she was always trying to help the police, to think of something that might assist them. Ladies and gentlemen, Ms Lees did not acknowledge the truth of what Ms Andrew recorded. In those circumstances Ms Lees’ evidence is that they went to the Red Rooster [page 279] after the Camel Cup and before they left Alice Springs. If you find the statement was made to Ms Andrew, you cannot use the statement as evidence by Ms Lees that they went to the Red Rooster before the Camel Cup. You may use the statement only as a statement inconsistent with the evidence of Ms Lees and bearing upon the reliability of her evidence that they went to the Red Rooster after the Camel Cup. Mr Algie put to you that you should have a reasonable doubt about Ms Lees’ evidence that they went to the Red Rooster after the Cup. He suggested it is a reasonable possibility they went before the Cup and arrived there not long after Peter Falconio had been to the library.

Ladies and gentlemen, as to the suggestion that they might have been at the Red Rooster soon after the library, you might care to compare that with the evidence of Ms Lees that after the library they went to the café across the road. If Ms Lees’ evidence about that is right, somewhere around 10.30 am they were in the café having breakfast and that is, of course, the time at which the accused said he was in Red Rooster. If you accept the evidence of Ms Lees about going to the café at that time, there was no occasion on which she came into close proximity to the accused. The other matter you might care to consider is this. If you accept the evidence of Ms Lees that somewhere around 10.15 am-10.30 am they had breakfast in the café, does that help you in determining when it was likely they would go to the Red Rooster. It is a matter for you, but if you accept the evidence about the café, it would be open to you to conclude that the only realistic alternatives are that they went to the Red Rooster shortly before going to the Camel Cup or after they had left the Camel Cup. Finally, you might care to consider the plans that Ms Lees and Mr Falconio had. They were off up the track. Do those plans fit with the evidence of Ms Lees that they would go to the Red Rooster shortly before heading up the highway? Ladies and gentlemen, if you reject the accused’s evidence about going to the Red Rooster at about that time, there is no evidence that he and Ms Lees ever came close to each other in Alice Springs and no occasion for the accused to have left his blood directly onto the T-shirt. Similarly, if you accept the evidence of Ms Lees that they were in the café having breakfast soon after Peter finished with the accountant, again there would be no evidence that she and the accused ever came close to each other in Alice Springs. What then of the alternative, that is, what if it is a reasonable possibility that they were at the Red Rooster at the same time. Ms Lees told you she has no recollection of passing the accused or being in the vicinity of the accused at the Red Rooster. She agreed she would not necessarily remember such an event. The accused does not say he has a memory of seeing Ms Lees in the Red Rooster and he told you on

more than one occasion that he is unable to explain how his DNA came to be on her T-shirt. Ladies and gentlemen, if, contrary to the Crown case, it is a reasonable possibility that they were in the Red Rooster at the same time, is it a reasonable possibility that the accused’s blood was transferred from him to Ms Lees in the Red Rooster. Well, the accused told you in evidence he bleeds like anyone else. He does not get blood noses. He did not suggest that he was bleeding when he went to the Red Rooster. As to the possibility of some form of contact, Ms Lees told you the restaurant was fairly empty. They were in there just long enough to order, sit down and eat. Ms Lees told you she did not recall bumping into anyone and anyone even coming close to her in the Red Rooster. So, ladies and gentlemen, even if they were in the Red Rooster together, how is it suggested that the accused’s blood came to be on the back of Ms Lees’ T-shirt? [page 280] And when you are considering this question, I remind you of the evidence of Ms Eckhoff that the pattern of the stain does not indicate a flicking. The stain is smudged with part of it being on the back of the Tshirt and part on the sleeve. In the view of Ms Eckhoff, as the stain is a smudged blood stain the most common way for the blood to be deposited is in liquid form, as in wet blood. The nature of the stain indicates to Ms Eckhoff that it came about through contact. Counsel for the accused, as I have said, suggested this could have occurred through direct accidental contact in the Red Rooster or through secondary transfer, because the accused had been in the Red Rooster and left his blood on some item such as a door frame or a seat. Counsel for the Crown responded by suggesting this is simply fanciful and should be rejected. Well, ladies and gentlemen, you will take into account all the

circumstances. If you reject the suggestion of direct accidental contact, when you come to consider the possibility of a secondary exchange you might think that the evidence of Ms Eckhoff, that this is a stain that came about through contact with wet blood, could be significant. If it was not direct contact between the accused and Ms Lees, is it reasonably possible that blood somehow left by the accused on the door frame or the seat or some other part of Red Rooster was still wet when Ms Lees T-shirt somehow came into contact with it? Or are you satisfied that the suggestion that direct or secondary transfer at the Red Rooster is not a reasonable possibility and should be rejected? Ladies and gentlemen, if in your view it is a reasonable possibility that the blood of the accused got onto Ms Lees’ T-shirt while they were both in Red Rooster or through some secondary transfer, then the presence of the DNA or the blood on the T-shirt cease[s] to be evidence of contact at Barrow Creek. On the other hand, what is the effect if you are satisfied that the deposit of the blood did not occur in or in the vicinity of Red Rooster? If you are satisfied that the DNA came from the accused’s blood, and if you are satisfied that the blood could not have been deposited on the T-shirt after the events at Barrow Creek, the Crown puts to you that the only other alternative is that it was deposited while the accused was attacking Ms Lees north of Barrow Creek. Ladies and gentlemen, if that is your view, if you are satisfied that the Crown’s submission is correct, and if you are satisfied that the man who attacked Ms Lees murdered Peter Falconio, then the Crown would have proved its case of murder. I am about to turn to the gear stick knob so we will take a break, thank you. ADJOURNMENT 4.35

The evidence concerning the presence of a DNA match on the gear stick and the cable ties was highly significant because, as Mr Wild said in his address to the jury, how unlucky could Murdoch be that his DNA ended up on all of these items? From the Crown’s point of view, this was the icing on the cake. The DNA match on the T-shirt

was bad enough for the defence case, but from the accused’s point of view the other DNA matches stretched that case to incredulity. Consequently, the attack on the other sources of DNA by Algie was of prime importance to the defence case. The weakness, from the Crown’s point of view, was persuading the jury that Low Copy Number DNA profiling was reliable, particularly as it had not been accepted outside of the United Kingdom.

[page 281] HIS HONOUR: Ladies and gentlemen, I turn to the gear stick knob on the Kombi. You will appreciate that Ms Eckhoff took a swab from the knob and only the knob. The DNA was extracted from that swab by Ms Hibble on 18 July. Ms Eckhoff analysed the extract and only got a partial profile which did not exclude the accused. If the evidence of Ms Eckhoff stood alone and the only evidence you had was of that partial profile, the evidence would amount to a piece of circumstantial evidence to the extent that the results, as far as they went, did not exclude the accused. As you know, a complete profile was not obtained and because it is such a partial profile, standing alone that evidence could not be used by you as evidence pointing to the accused. As Dr Whitaker explained, many people could possess such a partial profile. You need much more than a match at a few sites. So considering the evidence of Ms Eckhoff alone, there is very limited value that can be placed on that evidence and only to the extent that the accused is not excluded as a source of that DNA. Then of course you have the evidence of Dr Whitaker. As you now appreciate, Dr Whitaker used what has been called the Low Copy Number technique to obtain additional results. He has explained the history of that technique to you, including the period of research, investigation and experimentation. He has told you that it has been in use in the United Kingdom since 1999. Doctor Whitaker was cross-examined about potential difficulties

associated with the technique and he explained how he and other scientists have developed validation techniques and ways of interpreting the results which, in his opinion, give reliable results. Mr Pearman was cross-examined about difficulties associated with LCN and he agreed it is very sensitive because of the number of times that the DNA copies are multiplied. He agreed that the number of applications is a significant issue for laboratories which undertake it and said that a method needs to be developed to take that into account. He acknowledged that the interpretation of low copy number can be quite difficult. In re-examination Mr Pearman was asked whether the absence of LCN in Australia is because of doubt about the scientific validity of the process. He said from his perspective it evolves around difficulties in interpretation and validation procedures. He said he knows from reports that the Forensic Science Service in the United Kingdom is undertaking extensive validation and at this stage most of the laboratories in Australia are waiting to see whether it is adopted more widely. Ladies and gentlemen, in connection with the LCN technique you also have the assistance of evidence from Dr Both. She is undoubtedly well qualified and experienced in the area of forensic DNA. Doctor Both said that her knowledge of the LCN methodology comes from 32cycle work which she has done in South Australia on pieces of bone and reading the literature. She explained her concerns as a scientist about the reliability of results generated by LCN and about issues of interpretation of results. She spoke about the sensitivity of the process and the difficulties associated with contamination and of the problem of picking up a very small particle of DNA and determining whether it has come from the sample or contamination. In Dr Both’s view there is no means of isolating contaminants from the sample. Doctor Both spoke of allelic drop out and drop in and of her concerns about the process of reporting consensus results. In that context Dr Both agreed it came down to an issue of interpretation and that she was not an expert in interpreting LCN results. In connection with the consensus approach and excluding possible

alleles from the report, Dr Both said there might be more alleles than had been reported, but she agreed it does not change the validity of the profile that has been obtained. She said [page 282] it brings into question whether the alleles belong to one individual or will come from more than one individual. With alleles dropping in and out, the number of contributors changes and even if there is a consistent DNA profile, the actual contribution from individuals may change. Doctor Both agreed that it came back to validation and, mainly, interpretation. Doctor Both also talked to you about the problem of stutter which exists not only in LCN, but in the conventional 28-cycle DNA analysis. She said that from the publications she understood that the height of the stutter is much higher and more frequent in LCN and that the Forensic Service in England does not talk about heights. They talk about areas of peaks rather than actual heights. Doctor Both expressed the view that the peaks being so high, the stutter might be masking a true allele. If the stutter was actually another allele, there may be another contributor. Doctor Both said the process of 34-cycles has not been taken up by other laboratories, but the armed forces laboratory uses 32-cycles and a different system. Doctor Both did agree that there is a private laboratory called Forensic Alliance which she understood was using the LCN technique approximately two years ago. She agreed that the technique has been used in Dr Whitaker’s laboratory since 1999 and she acknowledged that New Zealand authorities are considering the introduction of LCN. You might recall that in expressing the view that LCN technique is dangerous in the context of forensic science, Dr Both also said there was no way the results could be independently reviewed. She said that if her work using profiler plus was challenged she could send it to anyone and they would be able to look at the work and say whether she is right or wrong. When asked why she could not look at the results

of Dr Whitaker, Dr Both began talking about problems of contamination. She agreed that her laboratory or another laboratory could carry out an increased number of cycles, but said she would not be confident of the results. Asked to assume that the work was done and that she came up with the same results of Dr Whitaker, and asked why, in that situation she would have cause to doubt the validity of the result, Dr Both said she would not do that number of cycles and nor would her laboratory. Well ladies and gentlemen, it is a matter for you but did you get the impression that Dr Both was reluctant to answer the questions about independent reviewing and the effect if the result was the same as Dr Whitaker. You might recall also that, asked to leave aside contamination issues, Dr Both agreed that they could do the 34-cycle if they had to. Asked, again, why she would have cause to doubt the result obtained by Dr Whitaker if she or her laboratory undertook independent testing and came up with the same result, Doctor Both gave the following evidence. She said: Because again you can’t do the similar thing in a laboratory where you haven’t validated it, and it may be that our machinery will not pick up or will pick up extra peaks that Dr Whitaker hasn’t. Now he did his work on a 377 which is fairly old technology, we have other machines which are more sensitive now and they may pick up in fact extra alleles. But what if it did not pick up extra alleles, what if it actually confirmed and came out with exactly the same result as Dr Whitaker, why would that be in doubt? — If it did, and I am saying if it did. Yes, if it did? — Then fair enough I would agree with his results, but I would have to look at how he got it, and I would have to look at his validation studies in detail. [page 283]

Ladies and gentlemen, it is a matter for you what you think of Dr Both’s approach. You also heard her questioned about the negative control. She expressed the view that there were problems with negative controls in LCN because LCN accepts contamination in negative controls and, in her view, that is not a valid method. You might recall it was then put to Dr Both that the negative controls were clear in this case and it was suggested therefore that there was no contamination. Doctor Both repeated her answer about not accepting the general science of a laboratory accepting spurious alleles or contamination in their negative controls. She said it does not matter about this case because this is a general scientific principle. When it was put again to her that if the controls were clear it suggested there was no contamination, Dr Both responded: They are clear this time, but that means that if I agree with the results, that means that I am accepting the science and I do not accept the science. Doctor Both was then asked again whether if the negative is clear it indicates no contamination and she said, ‘Normally I would say yes’, and again repeated that if she made any comments about the validity of the results then she would be agreeing with the science. She would not agree that the technique is valid and expressed the view that Dr Whitaker is pushing science to the limits. Well, what do you make of Dr Both’s evidence and of her criticisms of the LCN technique? You might think that both she and Dr Whitaker were very firm in their views. They are both highly qualified generally in the area of DNA, including forensic DNA, but as Dr Both acknowledged she has very limited experience with respect to LCN. She is relying upon general scientific principles with respect to DNA analysis and publications in expressing her concerns that the technique is not proven and dangerous in the context of the criminal law. As to them individually as witnesses, you will have formed your own impressions. Mr Algie suggested you should have disquiet about the reliability of a technique which is confined to Dr Whitaker’s laboratory and about the evidence of Dr Whitaker in giving his assurances that he

is the expert and his interpretations are correct. He put to you that you should give weight to the very serious concerns of Dr Both and the problems associated with issues such as false alleles, alleles dropping in and out and contamination. In addition there is the difficulty, said Mr Algie, of interpretation. On the other hand, Mr Wild put to you that Dr Whitaker was an impressive witness who is the leader in his field. He put to you that you can be confident in the results and the opinions of Dr Whitaker which were subjected to peer review. While acknowledging that Dr Both is highly qualified and experienced in the area of DNA, Mister Wild suggested that she has been overtaken by these developments which have been used in the United Kingdom since 1999. Mr Wild said it was very difficult to get a clear view from Dr Both as to why the results could not be checked and suggested she did not want to make any concessions in this area. Mr Wild pointed out that Dr Whitaker’s results could have been checked by another laboratory and a sample has been available for analysis, yet there is no evidence to contradict Dr Whitaker’s results or his interpretation of those results. I turn then to the results about which Dr Whitaker gave evidence. First the gearstick knob. The results are summarised in exhibit P227. Could we have that on the screen please? In summary, Dr Whitaker told you that this was a mixed profile and in his opinion there was nothing to suggest that there were more than two donors. Because some of the sites did not show a major/minor split, it was not distinct enough to draw conclusions without more information. [page 284] Now it was here that Dr Whitaker referred to the concept of expectations. That is, what he would expect to find in particular situations. So on the assumption that Peter Falconio had driven the Kombi Van shortly before it was driven by the offender, Dr Whitaker said there would be an expectation of finding Mr Falconio’s profile on the gearstick. Finding those DNA bands which matched Mr Falconio,

Dr Whitaker subtracted those bands from the mixture leaving a series of DNA bands not related to Mr Falconio. Doctor Whitaker told you that the accused was not excluded as a contributor. Having deducted the bands related to Mr Falconio and taking what Dr Whitaker regarded as a conservative approach by not using the results coloured in light green, Dr Whitaker calculated the chances of observing the combination of the dark green DNA bands which appear in the accused’s profile as one in 19,000. In calculating that statistical probability Dr Whitaker used the United Kingdom base. Doctor Buckleton used the Northern Territory database and his match probability calculation was one in 13,000. The other aspect concerned identifying a major as opposed to a minor profile. Looking at the profile as a whole, Dr Whitaker was unable to identify a major compared with a minor profile. He told you, however, that there was information indicating major components at some of the discrete DNA sites tested. At those sites the indications were that the DNA matching that of the accused was the major contributor. This is the type of results that Dr Whitaker would have expected to find if the accused drove the vehicle and used the gearstick knob after Mr Falconio. Counsel for the accused questioned the logic of only deducting the alleles or bands matching the alleles found in Mr Falconio’s DNA. He pointed out that Ms Lees drove from Alice Springs to Ti Tree and you might expect that some of her DNA would be found on the mixture. On that basis, counsel put to you that there were an additional three alleles which should be deducted because they could have come from Ms Lees and not the accused. Those alleles were at D3 the number 15, at D8 the number 14 and at D19 the number 13. If those are deducted, apart from the match as to sex, five of the alleles match those in the accused’s profile. Mister Algie put to you that this reduces the statistical probabilities and increases the chances of another contributor providing those alleles which match the profile of the accused. Mr Wild responded by reminding you of Dr Whitaker’s view that there was no indication that there were more than two contributors and of his view that it was not appropriate to make a deduction for the

possibility that Ms Lees was a contributor. He added that even if you do, there is still a partial profile on the gear stick matching the accused. Well, ladies and gentlemen, it is a matter for you whether you consider there is a reasonable possibility that Ms Lees was a contributor or whether you are satisfied, from the evidence of Dr Whitaker, that there were only two contributors and the appropriate method is to only deduct those alleles which could have come from Mr Falconio. If you think it is a reasonable possibility that Ms Lees’ alleles should be deducted, then you have a more limited number of matches across the profile of the accused’s DNA. If there is a more limited number of matches, then the statistical probabilities will alter quite significantly. You do not have any evidence as to what the statistical probabilities would be if you deducted those three alleles as suggested by Mr Algie. If you did deduct those three alleles, it would leave you with a partial profile and you could not conclude from that partial profile alone that the accused contributed all the alleles to the mixture. In fact, with this partial profile alone, even if you take it at its fullest according to the evidence of Dr Whitaker, considered on its own you could not draw a conclusion that [page 285] it was the accused’s DNA. It is a question of whether, in the light of the whole of the evidence, you are satisfied that it was the accused’s DNA. There is a further factor about which I should remind you. It is the question of stutters. In connection with this and other results, you heard Dr Whitaker cross-examined about other peaks that he did not report as alleles because in his opinion they were stutters. Doctor Whitaker explained how over the years of their research and experience, they have developed a technique for distinguishing stutters from alleles. You might recall that although Dr Whitaker finally, after extensive cross-examination, conceded as a scientist that his method of interpretation could be in error, he was very strong in his opinion and confident that his opinion was right. Doctor Whitaker pointed out that

his opinion is supported by the other scientist who checked his work. Ladies and gentlemen, I remind you again that the questions put by counsel are not evidence. It is the answer of the witness that is the evidence. The fact that it was put to Dr Whitaker that the stutters could be hiding true alleles does not amount to evidence that they could be hiding true alleles. What you need to do is consider the evidence that bears upon this topic. Doctor Both spoke about the possibility of peaks which are regarded as stutters in fact being true alleles that are wrongly discarded. I remind you that she said this comes down to a question of interpretation and it is an issue which exists with the standard ‘Profiler Plus’ technique. The point made by Dr Both was that the peaks, which are interpreted as stutter, are larger in LCN and, in her view, this makes greater room for error. Doctor Both acknowledged, however, that she is not an expert in the interpretation of LCN results and she was not asked to comment on the results obtained by Dr Whitaker. Because she lacks the expertise in this particular interpretation, Dr Both was not asked to comment on Dr Whitaker’s opinion about the various peaks which he attributed to stutter. There is no evidence before you to contradict the views expressed by Dr Whitaker that his interpretation in this case of stutters is reliable. That does not mean that you must necessarily accept the evidence of Dr Whitaker. That will depend upon your view of him as a witness and a scientist and upon your view of his methodology, which he says has been validated by experimentation and experience. However, you are entitled to bear in mind that his evidence, with respect to the interpretation of these results and the exclusion of peaks which he regarded as stutters, is not contradicted by any other evidence. Is it a reasonable possibility that Dr Whitaker has discarded as stutter one or more true alleles? If it is, then as put by Mr Algie, there might be more contributing to the soup of DNA than reported by Dr Whitaker. Counsel put to you that if this is a reasonable possibility it makes it more difficult to assert that there is a profile from one individual. As I have said, Mr Wild urges that you should accept the evidence of Dr Whitaker and rely upon his opinion because he is the man who is

experienced in the field, has done the research and the validation and he is able to reliably tell you that his interpretation is correct. Ladies and gentlemen, if you accept the evidence of Dr Whitaker, then the statistical calculation is 1 in 13,000. That is, that the chance of a second unrelated person producing the partial DNA profile on the gear stick, which matches the accused, is less than 1 in 13,000. To put it another way, it is 13,000 times more likely that the accused contributed those alleles than an unrelated person selected at random from the population. If you are satisfied of that fact, it will become a piece of circumstantial evidence to be put with the rest of the evidence. [page 286] If, from a consideration of the whole of the evidence, you are satisfied that it was the accused’s DNA on the gear stick knob, the next question would be whether you are satisfied that it came to be on the gear stick knob because the accused drove the Kombi Van. This raises the question as to whether it is of reasonable possibility that the DNA got onto the gear stick knob because of some form of contamination rather than because the accused drove the Kombi. 4.36

Next, the Chief Justice deals with the defence suggestion that the DNA results in relation to the gear stick knob and the cable ties could have been the result of contamination. It is interesting to see how the Chief Justice methodically takes the jury through the evidence and poses questions for the jury to consider as to how likely it is that this might have occurred.

HIS HONOUR: As with the T-shirt, your answer to this question will be determined by a close consideration of the evidence relating to this and other samples. If you accept the evidence of Ms Eckhoff, when the gear stick knob was swabbed the swab was put into a sealed container. By this time, the police had already collected the T-shirt and sent it off to

Darwin in a police plane. It was Ms Eckhoff who conveyed the sample from the gear stick knob to the laboratory. It is a matter for you, but if you accept all that evidence, you might think that the evidence does not disclose any occasion when the gear stick knob could have come into contact with Ms Lees’ T-shirt and it would be open to you to exclude direct contamination from the T-shirt to the gear stick knob as the source of the DNA on the gear stick knob. If I recall submissions correctly, there was no submission from Mr Algie that it was reasonably possible that some form of direct transfer of that nature took place. In addition, bearing in mind that the blood of the accused gave a full DNA profile, if there had been a direct transfer from the T-shirt to the gear stick knob, if you accept the evidence of Ms Eckhoff and Dr Whitaker you would have expected to find a full profile on the gear stick knob. So, ladies and gentlemen, if you exclude a direct transfer as the source of contamination, the next question is whether the sample from the gear stick knob could have been contaminated by the accused’s DNA coming from a source in a laboratory at Darwin. You have heard evidence about how the samples were stored. Does that evidence satisfy you that the gear stick knob could not have been contaminated before work began on that sample? What then of the work on that sample? Ms Eckhoff told you that the extraction of the DNA from the swab was done by Megan Hibble on 18 July 2001. Is it a reasonable possibility that somehow DNA from the Tshirt got transferred to the swab from the gear stick? How could that have occurred? And moving ahead, is it reasonably possible that somehow the cross contamination occurred after the extraction process began? In this context, you will recall the evidence of Dr Whitaker, that if cross-contamination had occurred during or after the extraction, he would have expected that the negative control would pick this up. In considering this question, again you might think that the partial profile only on the gear stick knob stands to be contrasted with the full profile obtained from the blood sample. As Dr Whitaker, and I think Ms Eckhoff, explained if the contamination came from the blood sample you would expect a full profile. Doctor Whitaker mentioned how it

would be a bit like over exposing a film. [page 287] Well, ladies and gentlemen, if a contamination did not come from the blood sample from the T-shirt, what other source of the potential DNA profile partially matching the accused was available in the laboratory? If you exclude the cable ties, there is no evidence of any other source of a partial DNA profile in the laboratory at the time that the analysis of the gear stick sample was undertaken. In these circumstances are you satisfied that the possibility of contamination has been excluded? That is a matter entirely for you and, of course, there is the question of what happened to the sample after the analysis in the Darwin laboratory and before it went to Dr Whitaker in the United Kingdom. You heard how the sample was stored in the freezer, that is, a locked freezer in the biology section. I turn from the gear stick knob to the steering wheel. Except for a small area which Ms Eckhoff had seen a police member touch a few hours earlier, Ms Eckhoff swabbed the entire surface of the steering wheel. She then tested the steering wheel for blood and the presumptive test was negative. Ladies and gentlemen, you heard that the sample eventually found its way to Dr Whitaker and he told you that by using the LCN technique that got a DNA mixture. Observing the number of bands it was Dr Whitaker’s opinion that the DNA had originated from at least, at least, three people. He could not identify any major or minor components. Across the bands he was unable to exclude Mr Falconio, Ms Lees or the accused as contributors. During cross-examination Dr Whitaker said that although the individuals, including the accused, could not be excluded, because of the very low number of matching bands a large number of other individuals chosen at random would also be likely to match the limited number of bands simply by chance. I think Dr Whitaker may have even

referred to your bands and suggested that there would be a very good chance of finding some of your bands on this particular profile because there are so few of them. He compared his own profile and perhaps others in the court. So ladies and gentlemen, as an isolated result the evidence does not and cannot point positively to the accused as a contributor. These bands could have come quite easily from a very large number of people. All that can be said is that the accused is not excluded and nor are many, many others. And so I come to the cable tie restraints. As with the DNA on the Tshirt and the gear stick knob, the first question is whether you are satisfied that DNA matching the DNA of the accused was found on those restraints. You will appreciate that we are here dealing with one of the three centre loops. Can we look at photograph P170A32 please on the screen? It is the loop to which the red arrow is pointing. That was a marking made on the photograph by Ms Eckhoff. And so, ladies and gentlemen, when you come to consider all the points that have been made about the cable tie restraints it is the examination of this individual loop with which you are concerned. Thank you we are finished with that. The major sample upon which the Crown relies is sample number 12, which was taken from the adhesive surface of the innermost layer of the tape that was applied around the inside of that loop. So it is the tape around the inside of the loop and the innermost layer of that tape, that is, the adhesive surface. It is the adhesive surface that was actually against the inside cable tie. [page 288] Doctor Whitaker told you the sample was taken from the adhesive surface because it is the adhesive on the tape which will actually retain the cells containing DNA. He had to apply a chemical to achieve the removal of the DNA from that adhesive surface.

Sample 12 gave a mixed DNA profile result. Doctor Whitaker told you, unlike the gearstick knob, he did not have to make any assumptions about who handled the tape in order to arrive at his view because the bands were so plain. He said this was like apples and tomatoes in the bag. The major bands could be seen to come from the same individual leaving a minor component comprised of a series of smaller DNA bands in the profile. This is done purely on scientific principle and, having arrived at a view that there were two contributors, Dr Whitaker told you they can then proceed to look and see who, if anybody, the profile matches. Doctor Whitaker told you that the minor bands in the profile also exist in the profiles of Ms Lees and Mr Falconio. He pointed out, however, that he was not saying that the minor contributor was the DNA of Mr Falconio. Doctor Whitaker said there was a need to be sensible about these results and that if it was Mr Falconio’s DNA that was responsible for the minor component, he would expect to see more than just one band which matched Mr Falconio’s profile in that minor component. Doctor Whitaker told you that one DNA band statistically is about one in three of the population and the fact that Mr Falconio has that band is in Dr Whitaker’s view neither here nor there. He would have expected to see more bands which actually match Mr Falconio if Mr Falconio was responsible for that minor component. As to Ms Lees, there were a number of bands in the minor component which are also represented in her profile. In the opinion of Dr Whitaker this would not be surprising as the ties had been applied to the wrists of Ms Lees tightly. Chaffing could be responsible for finding bands matching bands in the profile of Ms Lees. The major component was a substantial profile which was not entirely complete. Could we have exhibit P226 on the screen please? You will recall that in the area where results were obtained, the profile matched that of the profile of the accused’s DNA. One allele is missing from the cable tie extraction, sample 12, at D16 and potentially another at D8. Ladies and gentlemen, as to the meaning of this result, Dr Whitaker explained that he considers two points arise. First, that if the DNA had

come from the accused, you would expect to see a match of this type. In Dr Whitaker’s view the alternative is that the profile came from someone else who has the same DNA profile as Mr Murdoch and the chances of that are occurring would be one in 100 million. In Dr Whitaker’s view, this means that it is 100 million times more likely to get the DNA profile if it had originated from the accused, rather than from someone else chosen at random from the population. Doctor Buckleton agreed with that figure. Ladies and gentlemen — thank you, we are finished with that — as Dr Whitaker told you, it is not rocket science to work out that whoever constructed the cable ties tore the tape into strips and placed it on the inside of the cable ties. It is not rocket science to work out that whoever did that could well have left cells on the adhesive tape containing their DNA when tearing the tape and fixing it on the inside of the ties. Are you satisfied from the evidence relating to the DNA result in sample 12, considered in conjunction with the rest of the evidence, that the DNA recovered from the adhesive tape was the accused’s DNA? If you are satisfied it was his DNA, are you also satisfied that it came to be on the adhesive part of the tape because the accused constructed or was involved in the construction of those cable tie handcuffs? Or is it a reasonable possibility that someone else constructed the cable ties and the accused’s [page 289] DNA came to be on those ties through some form of contamination occurring either deliberately or accidentally after the ties were removed from Ms Lees? As to the other results, sample 13 which came from the inner side of the tie itself, gave a mixed profile in which all the bands of Ms Lees profile were represented. Doctor Whitaker was unable to interpret the mixture as containing a major or minor contributors. Some of the minor bands were represented in the accused’s profile and that of Mr Falconio. However, again because of the small number involved, no

conclusion could be drawn. It is unnecessary for me to canvas the results of the other samples. Ladies and gentlemen, I turn then to the issue of the possible contamination of those cable ties, but more particularly the possible contamination of the sample, that is sample 12, which gave those results. This requires careful consideration by you of what happened to those cable ties before the particular loop, if you accept it was that particular loop, was conveyed to Dr Whitaker. First, could DNA from the blood stain on the T-shirt or the DNA extracted from that blood, have made its way onto the cable ties. As you know the cable ties were cut off Ms Lees by the two truck drivers and put into the toolbox of the prime mover. Ms Lees was still wearing her T-shirt. Later that T-shirt was taken off and put into a separate brown paper bag. The cable ties were collected from the tool box by Mr Sandry and put into a separate bag. All the bags were then taken to Ti Tree and from there to Darwin. Is it a reasonable possibility that somehow blood from the T-shirt got onto the cable ties or are you satisfied to exclude that possibility? In considering this there is also the factor of the results you would expect on the cable tie if blood had somehow been transferred from the T-shirt. The outside of the cable ties did not give any results for DNA matching the DNA of the accused. If blood was somehow transferred to the cable ties, would you expect that the outside of the cable tie would also give a full profile? Next, ladies and gentlemen, you have the evidence about what was done with the cable ties once they were in the laboratory. Ms Julie Stitfold conducted the initial examination. She is a biologist. A swab was taken from the groove site of the cable ties. The swab was found to contain a mixture of DNA from at least two individuals, the major contributor being Ms Lees and the second contributor being consistent with Mr Millar. You might think this comes back to expectations again. Given that Mr Millar was involved in removing the cable ties, Ms Eckhoff did not find this result surprising. The cable ties were then taken for the purposes of fingerprints. There

is no evidence as to what was done in that process or where it occurred. The cable ties were then returned to the laboratory where Ms Eckhoff took tape lifts from the outside of the wrist bands and the actual cable ties. She marked the areas on photograph P209 and it is not necessary for me to deal with those other than to remind you that there were mixed profiles, including alleles that could have come from Ms Lees and Mr Millar. Ladies and gentlemen, I pause on the sequence of events to invite you to consider the significance, if any, that the swab and tape lifts from the outside of the cable ties showed DNA which was consistent with contributions from Ms Lees and Mr Millar, but not a contribution from the accused. Is that significant, in your view, to the question of whether it is a reasonable possibility that the innermost layer of the tape was somehow contaminated with the accused’s DNA, either accidentally or deliberately. On the face of this evidence, if you accept it, if the laboratory practices were not up to appropriate standard and if somehow laboratory practices resulted in the accidental contamination of that inner most layer of tape, they did not at the same time result in accidental contamination with the accused’s DNA on the outside of the handcuffs in those areas swabbed and tape lifted. [page 290] Moving on in the sequence of events. You have heard evidence of examinations by Ms Eckhoff, Mr Sandry and Dr Thatcher all occurring before October 2002. If you wish to be reminded of the details of those examinations, you would let me know. As you know, on 8 October 2002 Dr Thatcher retrieved the cable ties from the freezer in the forensic biology section and handed them to Mr Sandry. According to Mr Sandry the cuffs were still packaged in a paper bag within a paper bag. You then have the evidence of Mr Sandry as to what he did with that bag and his trip to South Australia. Ladies and gentlemen, I will not repeat the evidence of the events in South Australia. In essence Mr Sandry told you that apart from the

occasion of an examination by Mr Sheldon, while the handcuffs were with him they remained sealed in a bag in a bag. And similarly, you heard from Superintendent Gwynne and Detective Sergeant Chalker that the bag was never opened. If you accept that evidence, do you accept the evidence of Ms Eckhoff and Dr Whitaker that even if the bag came within proximity of the accused or his property, there was no risk of contamination if the bag remained closed. In this context, you are entitled to bear in mind that there is no evidence from any witness that the bag was ever opened in the presence of the accused, or in the presence of his property. And there is no evidence to suggest that if the bag remained closed, there was any risk or contamination. As to the examination by Mr Sheldon33, you will recall that he had no recollection of examining the cable tie restraints. He said that if the exhibit was not being treated by Mr McKenzie as his exhibit, and if it was Mr Sandry’s exhibit, he would not necessarily contact Mr McKenzie before going to his room with Mr Sandry to enable Mr. Sandry to collect the exhibit. As to the examination by Mr Sheldon, Mr Sandry told you that he asked Mr Sheldon to undertake an informal examination of the cable ties. He said they took precautions because it was an important piece of evidence and he did not know at that time if further testing would be required. He made a briefing note and gave a copy to Dr. Thatcher and the officer in charge of the investigation, Mr Chalker. Ladies and gentlemen, as to accidental contamination, counsel for the accused advanced the broad suggestion that you simply do not know what has happened to these cable ties at various times over the years. This — pointed out Mr Algie — comes about because of the inadequacy of the movement log and the failure to record all the movements in the movement log. You had evidence of course, from Mr Sandry and others, that if the cable ties stayed within the laboratory it was not the practice to make a note in the movement log. From 8 October 2002 there is no entry at all. So ladies and gentlemen, Mr Algie puts to you that anyone could have had access to these cable ties and we do not know, because of the absence of records, what was done with them.

[page 291] On the other hand, you have the evidence of those connected with the laboratory that people from the outside such as investigating police officers cannot simply walk in and have access to exhibits such as these. In addition, Mr Algie reminded you of the memo from Superintendent Kerr, expressing serious concerns about the handling of the cable ties, but you will recall the evidence of Superintendent Kerr that she was not concerned about improper physical handling of the ties. Her concern was that insufficient testing had been done. Do you accept her evidence in that regard? You are entitled to bear in mind that there is no evidence that Superintendent Kerr had any knowledge about how the handcuffs had been physically handled. If she had no such knowledge then that might be a pointer, from your point of view, as to what she was talking about in her memorandum. Mr Algie also referred to the memo written by Commander Hardman saying he wanted the handcuffs immediately dismantled. He suggested that if the Commander made that request it would have been done. On the other hand, you have heard evidence from other witnesses that this loop was not completely dismantled. Do you accept their evidence or is there a reasonable possibility that they are either wrong or are deliberately misleading you? Both Ms Eckhoff and Mr Sandry told you that the loop which was sent to Dr Whitaker was not dismantled. In this context, you are entitled to bear in mind that if the loop was dismantled, somebody must have gone to the trouble of not only dismantling it but of putting it back together again before it was sent to Dr Whitaker. You might recall that Dr Whitaker said he did not see any signs that the loop had been dismantled and put back together again. Are you able to discern anything about Ms Eckhoff or Mr Sandry or their evidence to cause you to doubt their evidence that the loop was not dismantled. And on the question of whether the loop could have been dismantled, you would be entitled to ask who did it, when was it done and you are entitled to bear in mind the difficulties associated

with the very adhesive or sticky nature of the adhesive side of the tape. Is the Crown right, in your view, when it says that these people who gave evidence about these matters are patently honest? So, ladies and gentlemen, you might think there are two fundamental questions for your consideration. First, do you accept the evidence of the witnesses about what was done with the cable ties from time to time. Second, are you satisfied that the precautions prevented any contamination occurring. When I speak of contamination occurring, I mean contamination of the cable ties, and in particular of the tape that was subsequently tested and gave that partial profile matching the DNA profile of the accused. As I have said, in considering this question you will bear in mind counsel’s submission that you do not know what happened from time to time over a period and you will have to balance that against the evidence of the witnesses who spoke about what was done and who did or did not have access to the cable ties. Perhaps one final matter before I give you another break. In looking at the possibility of accidental contamination, that is before the cable tie loop reached Dr Whitaker, you are entitled to bear in mind the area of the tape from which the sample that Dr Whitaker analysed came. You will recall Dr Whitaker’s evidence about how he removed the layers of the tape and you have the photographs in exhibit P224 and a diagram from Dr Whitaker’s working notes, exhibit P225. Doctor Whitaker explained how he peeled off the outer layers to expose the outer surface of the cable tie themselves. Doctor Whitaker also removed the inner layer of the tape exposing the inside surface of the cable tie loop. He told you that the inner layers of tape tracked along the edge of the ties while some of the outer layers were folded over the rim of the ties. [page 292] The particular sample upon which the Crown relies was sample 12, which came from the innermost or deepest layer of the tape peeled away from the inside of the cable ties. This is to be contrasted with the

outside or the top layer of the tape going around the outside. It is a matter for you, but you might think that accidental or even deliberate contamination with material containing the accused’s DNA could occur more easily on the outside layer than on the very innermost layer around the inside of the loop. How could such accidental contamination occur of that area, particularly you might think, without also contaminating in the same way the outer layer? Is it a reasonable possibility that somebody peeled back all those layers and accidentally or deliberately contaminated the area sampled by Dr Whitaker? And I have already reminded you about Dr Whitaker’s evidence that he did not see any signs that they had been dismantled and put back together again. Or are you satisfied that the witnesses have told you the truth when they said that apart from a small amount of sampling done by Ms Eckhoff, that particular loop remained intact throughout? If, at the end of the day, ladies and gentlemen, you are satisfied that the loop remained intact throughout until the layers were peeled away by Dr Whitaker, you are entitled to consider how accidental contamination could have reached the innermost layer, and you are entitled to consider how deliberate contamination could have reached that innermost layer unless the layers were peeled back in the manner described by Dr Whitaker. I am about to come specifically to the question of deliberate contamination but it might be appropriate to have a break. Thank you. ADJOURNMENT 4.37

The Chief Justice deals with the evidence, to see what support there is for the possibility that the cable ties were deliberately contaminated. Notice how logically this task is approached.

HIS HONOUR: Ladies and gentlemen, you have been very patient. I ask you to exercise a little more patience and you will go out at lunch time, but your lunch will be a little delayed. So I am intending now to go through to the finish of my summing up and to ask you to retire.

I am turning to the question of quite specifically deliberate contamination and I have mentioned that topic already. You will recall that Mr Algie suggested that, as police believed the accused had committed the crime, they might be prepared to lie and bend a bit. In his words, ‘No harm done’. He suggested Ms Andrew was prepared to tell a little lie about when she made the notes. He suggested Mr Sandry and Mr Spilsbury would have searched for the lip balm tube, once they found the lid. He put to you that you should reject their explanations that they thought someone else had done that job. In essence, Mr Algie was putting to you that those witnesses lied about not conducting a search at the time. Well, ladies and gentlemen, you saw and heard those witnesses. What was your view of them? Counsel for the Crown put to you that they were obviously and patently honest witnesses. As to the lip balm tube and the tape, Mr Wild pointed out that as at October 2001, when the police say they found those items, the police did not [page 293] have a suspect. The DNA profile on the T-shirt had not been connected to anyone. Why then, asked Mr Wild, would anyone bother to plant the lip balm tube and pieces of tape under the bush? As to the cable ties themselves, if memory serves me correctly the only witnesses to whom the suggestion of deliberate contamination was made were Superintendent Gwynne and Detective Sergeant Chalker. Both denied that suggestion. Again it is your assessment of them as witnesses that counts. In your view, is it reasonably possible that either of them thought, as suggested by Mr Algie, that it would do no harm and they set about deliberately contaminating the cable tie? When you come to consider that suggestion you might care to reflect on Mr Chalker’s reaction to the suggestion that he or any other officer might deliberately contaminate the cable ties. In considering this question of deliberate contamination, you are

entitled to not only take into account your view of the witnesses, but to consider carefully how such contamination could have been achieved. First, there would have to be a source of the DNA with a profile matching that which was found in sample 12. Assuming we are talking about the accused’s DNA, that means there would have to be a source of the accused’s DNA that did not give a full profile, but gave the profile you saw in exhibit P226. So you are entitled to ask: what material was available as a source of DNA giving that profile? If the blood stain was used or the DNA extracted from the blood stain was used, according to Dr Whitaker and Ms Eckhoff you would expect that you would obtain a full profile. Deliberate contamination with such a strong sample would be a bit like overexposing a film. Doctor Whitaker told you there was no such overexposure in sample 12. The sample from the gearstick, you might think, could not have given such a profile. It only had a match on a number of lesser bands. So, ladies and gentlemen, what was the source and how did the police officer, assuming it was a police officer, come to have access to that source? What did counsel for the accused suggest to you? If I remember counsel’s submissions correctly, he did not suggest a specific source to you. If you are satisfied there was no such source, then you might think that would be the end of the suggestion of deliberate contamination. Mr Algie did make mention of the strange evidence of Mr Hepi about cigarette butts. This arises out of the evidence of Mr Hepi, about asking a friend to get cigarette butts from his home in South Australia.34 Well, ladies and gentlemen, if cigarette butts were the source, how was the contamination achieved. Could it have been achieved by simply applying a wet cigarette paper to the outside of the cable ties? If that occurred would you expect the examiners to have found the accused’s DNA on the outside of the cable tie. If somehow the cigarette paper was applied to the outside of the cable tie without leaving the accused’s DNA on the outside, how could the DNA have got to the innermost layer of the tape? Did it simply soak through without leaving any trace on the outside of the tape? Did somebody dismantle the loop, contaminate the innermost layer and then reconstruct the loop?

How does that sit with the evidence of Dr Whitaker? Who did this? How did this person get access not only to the source of the DNA, but to the particular loop? [page 294] In addition, ladies and gentlemen, in order to find this suggestion is a reasonable possibility, you would first have to have a doubt about the evidence of Mr Hepi that he did not do anything with the butts. Second, it would also involve you having a doubt about the evidence of the police officers who dealt with Mr Hepi and said that he did not provide any butts to them. This included Detective Jenal from Broome and Detective Dooley-McDonnell who told you that she spoke with Mr Hepi on more than one occasion. She told you that she did not ever take possession of any cigarette butts from Mr Hepi or anyone else. Ladies and gentlemen, it might be that Mr Hepi had in mind originally, the possibility of obtaining the accused’s DNA from the cigarette butts, but the first critical question for you is whether there is a reasonable possibility that he did anything about it. The Northern Territory Police first went to Broome on 25–26 September 2002. As I said, all of the witnesses that you have heard before you denied the Mr Hepi gave them cigarette butts. Well, what did counsel say about this? Mr Algie said that the evidence of taking the cable ties to South Australia was extraordinary and unbelievable. He pointed to the difference between Mr Sandry and Mr McKenzie, as to where the bag containing the handcuffs was stored, and he said you could have serious concerns about what reliance you can place on the evidence that no-one else could have had access. He suggested another police officer might have had access. He said this also applies to when the cable ties were stored in the biology laboratory in Darwin. As I said, he put to you that you do not know who had access and what was done. In response Mr Wild said there was not one tittle of evidence to support all the innuendo of corruption and conspiracies. Mr Wild put to

you that you cannot just pull corruption or conspiracies out of the air in the absence of evidence. He suggested that if the police were looking to fit the accused up, they could have done a much better job. If deliberate contamination had occurred during the October 2002 trip to Adelaide, why asked Mr Wild, did they not test the cable ties again immediately?35 Why wait, if they had contaminated the cable tie, why wait until May 2005, and why send it to the United Kingdom? Mr Wild put to you that you should reject the suggestion of contamination, either deliberate or accidental, and that you should reject it out of hand. Here, said Mr Wild was the DNA of the maker, right where you would expect it to be. In addition, Mr Wild posed the question that if the DNA of the accused came to be on that inner layer of adhesive tape through some form of contamination and not because he made the handcuffs, where is the DNA of the maker? 4.38

The Chief Justice reminds the jury that Hepi claimed to have seen Murdoch making manacles from cable ties while he was at Sedan. This might have been an experiment by Murdoch to see how functional they would be, because it was not suggested that these cable tie manacles were the same ones used on Lees.

[page 295] HIS HONOUR: Ladies and gentlemen, in connection with those cable tie restraints you also have the evidence of Mr Hepi about what he said he saw the accused doing in the making of cable ties: and I think this was at Sedan. He said the accused was making handcuffs by taping together two zip ties in a manner similar to those shown in the mock up. Mr Hepi was cross-examined at some length about this. He said that each of the loops was made from two cable ties and taped, three loops in the centre and the outside loops for the hands which had not been joined together. You might recall however that Mr Hepi’s attention was drawn to the

statement he gave on 28 September 2002, when he said that he saw the accused making single looped handcuffs out of zip ties which were made out of one single zip tie for each cuff. After he read that statement, Mr Hepi was asked if he saw the accused making single loops and he replied, ‘Singles and doubles, there were lots of handcuffs made at our place, I didn’t take much notice’. He said there were several sets that had been made and that obviously what he described in his statement was what he saw, namely single zip tie loops. In addition, in the same statement Mr Hepi told Detective Chalker that the accused was not using tape when he was making the zip ties. Mr Hepi said he spent a sum total of about two minutes in the shed getting equipment for himself. Faced with the prior statement about the tape, Mr Hepi said it was his recollection the accused was using tape on the pair he was working on, but there were other pairs already made there on which the tape had been used. It was pointed out to Mr Hepi that in an earlier statement dated 10 September 2002, a seven-page statement, there is no mention of seeing the accused making cable ties. Mr Hepi responded that he did not think the question was asked. Ladies and gentlemen, you will make what you will of that evidence of Mr Hepi, but you should bear in mind the warning I gave you about his evidence, and you should bear in mind and take into careful consideration the inconsistency between his statements to the police and what he has told you. 4.39

The Chief Justice returns to the DNA evidence again and the possibility of coincidence.

HIS HONOUR: Ladies and gentlemen, just to finalise on the question of the DNA. In my discussion of the DNA, I have deliberately dealt with each item separately because you need to consider carefully whether in respect of each item there might be an innocent explanation for the presence of a DNA profile either completely or partially matching the

profile of the accused. You should bear in mind, however, that you should also consider the impact of this evidence in its entirety. I remind you again of the evidence of Dr Whitaker about expectations. As Dr Whitaker told you, and I mentioned it before, this is not rocket science. You might think this is a matter of logical reasoning borne out of commonsense and experience of life. You might expect that whoever attacked Ms Lees could have left material containing their DNA on Ms Lees. You might expect that if the offender drove the Kombi Van after Ms Lees escaped into the scrub, the offender could have left his DNA somewhere on the Kombi Van that he was likely to have handled in the course of driving the Kombi. Finally, you might expect that the offender would have made or been involved in the [page 296] making of the cable ties handcuffs and might have left his DNA somewhere on the handcuffs, particularly on the adhesive side. The Crown put to you that all these expectations have been fulfilled. The offender left his DNA on Ms Lees T-shirt, gear stick knob and cable ties. The Crown relies on the presence of DNA completely, or partially, matching the accused’s DNA on each of those items just where you would expect that the DNA of the offender could be found. In response, it is the defence case that there is an explanation consistent with the accused’s innocence that has not been excluded by the Crown. As you know, the accused do not have to prove any explanation. The Crown must disprove it. And the Crown says to you that it has disproved any possibility of an innocent explanation for all of these results. In addition, it is the Crown case that when you view the DNA evidence in its entirety, it is stretching coincidence too far to suggest that it is all a produce of innocent contact or contamination or both. On the Crown case, it is stretching coincidence too far to say it is

reasonably possible, that not only was the accused’s blood deposited on Ms Lees T-shirt by innocent means in Alice Springs without anyone knowing about it, but somehow two samples, one from the gear stick and one from the cable ties, became contaminated with DNA partially matching the accused’s profile. In addition, the Crown put to you that if the accused is not the offender, not only did all these coincidences occur, but the true offender did not leave his DNA anywhere that you might have expected to find it. In response, Mr Algie suggests that not only is there a reasonable possibility of contamination, but there is a reasonable possibility that other true alleles exist, or existed, which were wrongly treated as stutters and, therefore, there could well be another DNA profile on the gear stick knob and cable ties which have been overlooked. Well, ladies and gentlemen, what do you make of the effect of the DNA evidence in its entirety? If you are satisfied that the results are reliable, it is reasonably possible that for each of the three items there is an innocent explanation such as innocent contact or contamination? Or are you satisfied that coincidences do not stretch that far and the reason DNA completely or partially matching the accused’s profile is on these items where you might expect the offender’s DNA to be found is because the accused is the offender? 4.40

The last topic dealt with is the evidence concerning a hair tie found in Murdoch’s possession, and whether it might have been kept by him as a souvenir.

HIS HONOUR: Ladies and gentlemen, that brings me to what I called earlier and you might think a long time earlier, the ninth category and that is under the heading of miscellaneous. The only item I intend to mention here is the question of the hair tie. You may think there are other bits and pieces, but it is unnecessary for me to remind you of them. You should take them all into account. Ms Lees cannot say that the hair tie found with the accused is the very same hair tie she was wearing that night. The Crown put to you that

this is a piece of circumstantial evidence and suggestive of the accused keeping the hair tie as a souvenir. Well, ladies and gentlemen, you know that the accused apparently uses hair ties. A number of them were found in his possessions. It might appear to you that what the Crown is really putting to you is that the accused would have no occasion to be [page 297] in possession of a hair tie unless he had souvenired it from Ms Lees. But the accused explained that he does use hair ties and you know they were found. At the end of the day, you might think that the mere fact of possession of a hair tie identical to that of Ms Lees is of little significance. In the context of hair ties, however, you also have the evidence of the accused that those produced in court are not his property. The Crown put to you that you should accept the evidence of the officers that these hair ties did come from the accused’s property and what the Crown suggests is that this is another example of the accused recoiling from a connection with Ms Lees in a manner similar to his recoil from the mock handcuffs. Counsel for the accused put to you that it might simply be the result of the accused misinterpreting the difference between the exhibit and the photograph where the tie appears to be thicker. Well, ladies and gentlemen, that concludes my overview of the evidence. There may be other items, as I have said, that I have not mentioned. You should have regard to all of the evidence. During my remarks, I have mentioned counsel’s submissions concerning particular issues. I remind you that you should take into account not just those parts that I have mentioned, but everything they have put to you. 4.41

The Chief Justice gives the jury an overview of the case.

HIS HONOUR: I remind you that in his address Mr Wild put to you that when you look to the characteristics of the offender, the accused is not just a candidate, but he fits the bill. The offender was driving on the Stuart Highway at night, with his dog in the passenger seat, in a white four-wheel drive with a canopy. So was the accused, said Mr Wild. The offender was a big person aged about 45 with an oval face, a Mexican droopy moustache, droopy eyes and lines underneath his eyes. Mister Wild put to you that if you imagine the accused with a Mexican moustache, Ms Lees was plainly describing the accused right down to the checked shirt with a T-shirt underneath. The offender appeared to be hunched and stooping and, said Mr Wild, it is no coincidence that this is the view Ms McPhail got of the accused. On the other hand, Mr Algie put to you that when you go behind this general overview of the characteristics of the offender, you can find significant differences or at the least it is a reasonable possibility that there are significant differences. The hair, the offender’s vehicle with chrome or silver bull bar and interior front to rear access. Mr Wild put to you, ladies and gentlemen, that the accused must be one of the unluckiest people you can imagine. He happened to be in the centre of Australia at the same time as Ms Lees and, on the defence case, unfortunately for him, although he does not now remember it, he happened to be bleeding and to drop some of his blood either directly on Ms Lees T-shirt in a casual contact, that neither can remember, or onto some surface in the Red Rooster that Ms Lees happened to lean against. Not only that, said Mr Wild, but those coincidences having occurred, this woman who somehow picked up the blood of the accused, happened to be the woman who was subsequently attacked on the Stuart Highway. But on the defence case, the true offender did not leave his DNA anywhere where you might have expected to find it. Instead, said Mr Wild, unluckily for the accused through some form of unidentified contamination, DNA giving a profile partially matching the accused found its way onto samples from places where you would expect the DNA of the offender to be found, namely the gear stick knob and the

[page 298] cable tie handcuffs. Mr Wild added that, on the defence case, not only was the accused unlucky on those fronts but he was unlucky enough that the contamination of the cable ties reached to the deepest layer of the tape. In addition, ladies and gentlemen, to that combination of events, Mr Wild suggested that the unlucky series of events which the defence would have you say has occurred or might have occurred, simply stretches coincidences way beyond credulity. Mr Wild said that on the defence case how unfortunate it was that the accused not only had his DNA found where you expect the offender’s to be found, but the man who overtook the Kombi Van and subsequently attacked Ms Lees happened to look like the accused, have a dog, have a gun and be driving a vehicle very similar to the accused’s vehicle. Finally, said Mr Wild, all of this on top of the positive identification of the accused by Ms Lees. On the other hand, Mr Algie urged that you cannot rely upon the identification by Ms Lees. It is suspect when you carefully examine the circumstances in which she made that identification. He urged that there is a reasonable explanation for the possible primary or secondary transfer of blood in Alice Springs and that the practices and conditions that existed in the laboratory in Darwin have been shown to be such that the possibility of contamination cannot be excluded. The cable ties have travelled the country and you do not know what has happened to them. The science used with respect to the gear stick knob and the cable ties is, suggests Mr Algie, suspect and you cannot rely on the results. There may be another profile or profiles wrongly discarded as stutter. Mr Algie put to you, that when you carefully examine the characteristics of the offender and go behind the overview the Crown would have you rely upon, there are dissimilarities or inconsistencies between the offender and the accused and the offender’s vehicle and the accused’s vehicle. Finally, ladies and gentlemen, I remind you that Mr Wild invited you

to consider what you know of the accused and his meticulous ways. He put to you that the cable tie handcuffs bore the hallmark of being meticulously put together and the behaviour of the offender in removing the body and covering a bloodstain with dirt was just what you would expect of a fastidious person like the accused. This was a man, said Mr Wild, who arrived home in Broome looking and behaving just as you might expect if he had murdered Peter Falconio, lost Ms Lees into the scrub, had to get rid of the body and made a dash for Broome. Mr Wild put to you that you cannot believe the accused when he says that the various witnesses who agree with him are right, but if their evidence hurts him they are wrong. Mr Wild put to you that Ms Lees’ evidence coupled with the combination of DNA and other evidence completes a powerful case against the accused. Mr Algie urged however that when you put the features from Barrow Creek together, they do not point to the accused, and particularly they do not point to his vehicle. This was a man, said Mr Algie, who was towing his camper-trailer and taking his time because he did not wish to draw attention to himself. Mr Algie put to you that when all the oddities and the inconsistencies are considered, not just individually but in combination, and when you look carefully to the offender’s features and the features of the offender’s vehicle, it is at least a reasonable possibility that it was not the accused on the road north of Barrow Creek that night. 4.42

In this last section of the summing up, the Chief Justice tells the jury it may not have to resolve every issue which has arisen in this case. The jury is told

[page 299] that individual factors may have greater significance than others or, to put it another way, may carry more weight; but in a circumstantial case, the question is whether the combined weight of the

circumstances proves that the accused is guilty, or whether it shows that there is a reasonable hypothesis consistent with innocence which the Crown has not disproved. HIS HONOUR: Ladies and gentlemen, I am coming to the end of my remarks and it is now necessary for me to discharge three reserve jurors. They are numbers 121, 99 and 143. I am sure you know your numbers and you will excuse me for referring to you by number only, as you will appreciate that we have used numbers in order to preserve your anonymity. I do not know how you feel about being discharged at this stage of the trial. I must say I would not be surprised if you are feeling considerably miffed or at the least, somewhat frustrated. However, I have no choice in the matter. The law dictates that the maximum number of jurors who can deliberate and bring in verdicts is twelve. I will not try and explain why the number of 12 has been regarded as sacred because I do not understand the logic behind that number. But it is not just in the Northern Territory where the number 12 is regarded as sacred. I think it applies across Australia. It may just be the product of historical practice. Please do not feel that you have not made a contribution or that your contribution is not appreciated. On behalf of the court and the community, I thank you for your service and hope that your knowledge that you have contributed to the proper functioning of the criminal law will be some compensation for the inconvenience that service on this jury has undoubtedly brought to you. Please remember that you must not speak to anyone about the case or what has occurred in the jury room. I remind members of the public, including journalists and writers that they are not permitted to approach or speak to any juror including the reserve jurors, after the reserve jurors have been discharged or when the trial has finished. So would you please now, the reserve jurors, accompany the Sheriff’s Officer into the jury room where your individual notes and folders will

be collected by the Sheriff’s Officer and later destroyed. Thank you for your service. Well, ladies and gentlemen, just a few remarks in conclusion. As I said at the outset, how you approach the evidence is a matter entirely for you. There are many issues that have been raised for your consideration and you may or may not find it necessary to resolve all of the issues. In addition, you may or may not be able to resolve all of the issues. For example, you may or may not be able to arrive at a conclusion about the failure to locate the lip balm tube and the pieces of tape during the initial searches. However, if from all the other evidence you are satisfied that the Crown has proven the accused’s guilt, it would not matter that you have not been able to solve that particular issue. Similarly, the issue of the camper-trailer. Even if it is a reasonable possibility that the accused was towing a camper-trailer in Alice Springs, provided you are satisfied from all the evidence that the accused is guilty of the crime of murder, then your verdict would be guilty and the question of the whereabouts of the camper-trailer at the time of the murder may remain unresolved. In giving you that direction I am not implying that the issue of the camper-trailer is not an important issue for your consideration. Similarly, I am not intending to detract [page 300] from the fundamental requirements that the Crown must prove guilt. If in your view an unresolved issue or issues result in a reasonable doubt about the guilt of the accused, then your verdict will be not guilty. On the other hand, you may be in a position where you are satisfied that the Crown has proven the accused’s guilt, notwithstanding that there is an issue or issues which remain unresolved. I mention these possibilities because there are many, many issues that have been raised in this case and you should not retire to the jury

room thinking that necessarily you must resolve every issue that has been raised. Life often throws up little mysteries simply because the course of human affairs is not like the pieces of a jigsaw which are carefully cut to pattern. Human affairs are complicated by the mere fact of frailty of human observation and recall. You may reach conclusions in this matter yet leave some areas unresolved. But I repeat, if in your view an unresolved issue or issues results in a reasonable doubt about the guilt of the accused, then your verdict will be not guilty. On the other hand, if you are satisfied from all of the evidence that guilt has been proven, then your verdict will be guilty notwithstanding that an issue or issues remain unresolved. In addition, in the context of circumstantial evidence. I mentioned some time ago the requirement that you must look to see if any of the circumstances tend to point away from the accused being the offender. If in your view there are circumstances pointing away from the accused, you must give careful consideration to those circumstances and consider whether they cause you to have a doubt about the guilt of the accused. Please remember, however, that you do not consider the impact of these circumstances in isolation from the rest of the evidence. You assess the impact in the light of all the evidence. Your own experience will tell you that it is not uncommon in life where a dispute exists to find factors pointing in different directions. This does not mean that the dispute is incapable of resolution; and so it is in the criminal court. Circumstances may point in different directions, but if at the end of the day from a consideration of the whole of the evidence you are satisfied guilt has been proven, then you will return a verdict accordingly. You will readily appreciate that in whatever direction circumstances point, the strength or weight of individual circumstances and the strength of weight of a combination of circumstances can vary greatly. So, ladies and gentlemen, you must make a careful assessment of the weight of not just individual circumstances but combinations of circumstances. What is your view of the weight of the combination of proven facts? Does the combined effect of proven facts point beyond reasonable doubt to guilt and exclude any other reasonable hypothesis

other than that the accused is guilty? In this area, counsel for the accused has urged that when you combine the circumstances that existed at Barrow Creek with respect to the accused and his vehicle, that combination, or individually and in combination, a reasonable doubt is created. On the other hand the Crown put to you that the combination creates a powerful case against the accused. It is a matter for you entirely, but in this area of combination of evidence, you might think that the DNA evidence is of particular importance. What is your view of the effect of not just the individual items of DNA that you find proven, but also of the combined DNA facts that you find proven? And finally, ladies and gentlemen, separately from all the circumstantial evidence, do you have a doubt about the reliability of Ms Lees’ identification of the accused, or are you satisfied her identification is accurate.? That is obviously another question of considerable importance. [page 301] Ladies and gentlemen, during my summing up I have referred to whether the Crown has proved the accused guilty of the charge of murder. That was just a short hand way of asking the question whether the Crown accused guilty of all the offences charged. As you are aware, there are two further charges that you must consider. So, although I have talked about whether the Crown has proved the accused guilty of the charge of murder, you are obviously required to consider the other two charges. Each of the three charges must be considered separately. You will have the exhibits in the jury room and gloves will be provided should you wish to use them. You should use gloves if you are handling the photoboards prepared by Dr Sutisno. It may take a little time for the exhibits to be brought in to you because there is a need for

us to check that they are all in proper order for you. The exhibits include the Kombi Van. If you wish to see the Kombi Van, the Sheriff’s officers will arrange for you to be taken to see it, on your own. At any time, if you need any assistance whatsoever, please do not hesitate to ask and I will return to the court to give you such assistance as I can. This could include either directions about the law or reminders about the evidence. If required evidence can be read to you. How you go about your deliberations is entirely a matter for you. This includes what duties, if any, you give to the foreperson. You may find it helpful if the foreperson acts a bit like a chairperson of a meeting to ensure that each of you has a reasonable opportunity to have your fair say. The foreperson will be the person responsible for delivering your verdicts and for that reason to avoid any misinterpretation or misunderstanding, when you return to court for the delivery of your verdicts, I will ask that the foreperson sit in the front seat corner here nearest to me. Now, ladies and gentlemen, we’re into the lunch hour. You will find that if a meal time comes around while you retire to consider your verdict, I will simply send a message in that we will not take a verdict until a particular time. This enables the court staff and everybody else to have a break because, you will appreciate, that while you are retired to consider your verdict we are all constantly on call. So I can indicate to you now that lunch will be provided, obviously, and I will not be available to take a verdict until after 2.30 pm. The verdicts whether they be guilty or not guilty must be unanimous. Would you please retire to consider your verdicts. JURY RETIRED 12.44 PM 4.43

After the jury had retired for some time, there was a jury question. The court was re-convened and the Chief Justice answered the question and sent the jury out again. Sometimes, jury questions are like ‘Dorothy Dixers’ — they are no more than an indication that a particular juror, or jurors, are holding out on some point and the rest of the jury wants the judge to, in effect, tell these jurors that the

majority are right and the others are wrong. This is particularly so with very basic questions which really ought not to cause the jury much trouble. For example, in a case where the only question is whether the person who shot the gun which resulted in death intended to kill or cause grievous harm, and the defence position is that the gun was accidently discharged, a jury question framed along the lines that, if the jury were satisfied that the accused intended to

[page 302] kill, could a verdict of manslaughter be open, is a fairly clear indication that one or more jurors are not following the judge’s instructions on the law. Often in such cases, the re-direction quickly results in a unanimous verdict, although it did not do so in this case. Whether the question in this case was a Dorothy Dixer or not, I cannot say. HIS HONOUR: Ladies and gentlemen, you have asked for clarification of a guilty verdict for murder without a body. The first thing I need to say to you is that the absence of a body is not a bar to a guilty verdict of murder. The critical question for you to consider, on this issue is whether on the whole of the evidence, notwithstanding that you do not have a body, you are nevertheless satisfied that Peter Falconio was killed that night. That is the first question. Are you satisfied from all of the evidence that Peter Falconio was killed that night? If you are not satisfied that Peter Falconio was killed that night, then obviously the Crown has failed to prove a case of murder and you would acquit the accused. If, however, from the whole of the evidence you are satisfied that Peter Falconio was killed that night, the next question is whether you are satisfied that he was killed by the accused. If you are not satisfied he was killed by the accused then of course the accused is to be acquitted.

If you are satisfied that Peter Falconio was killed by the accused, then you must consider whether the Crown has proved the four elements of the offence that are set out in the aide-memoire for you. And as I said to you in my remarks, the issue that has been fought in this trial, or the two issues, are whether you can be satisfied that Peter Falconio was killed and if you are satisfied that he was killed, whether you are satisfied whether the Crown has proved that it was the accused who killed him. If you are satisfied that the accused killed Peter Falconio, the elements of the offence set out in the aide-memoire you might think, would not cause you any difficulty. But they must be proven. So if you were satisfied that the accused killed Peter Falconio then you ask the questions, has the Crown proved those four ingredients that are set out in the aide-memoire? Does that answer your question? Thank you, if you require any further assistance just let me know. Would you now retire again. 4.44

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After the jury had retired for about eight hours, unanimous verdicts of guilty were entered on each charge.

The references in the example given to ‘beyond reasonable doubt’ as the standard of proof required before inferences can be drawn from circumstantial evidence is arguably technically incorrect and too favourable to the accused. However, the Chief Justice may have had in mind that in this case he would need to give a Shepherd direction, which would require proof beyond reasonable doubt, particularly in relation to the Shell Truck Shop CCTV footage and the DNA evidence, for example, and he may have thought that it would be too confusing to the jury to attempt to explain why it was necessary in relation to that evidence but not in relation to other circumstantial evidence. In fact, the subject of a possible insurance claim was not mentioned at all in the evidence, nor in the submissions of counsel. For example, by describing the dog ‘Jack’ as a blue heeler, when she had not heard of that breed of dog before. Note how the Chief Justice uses the expression, ‘is it reasonably possible’, to remind the jury that there must be proof beyond reasonable doubt, and if it is reasonably possible that Lees’ memory was displaced by the photo, obviously there would be no such proof. Photo 14. In the following passages, the Chief Justice outlines why it is dangerous to act on the

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evidence of Hepi. Each of the reasons he identifies, in itself, would be a sufficient reason to give such a warning, but in this case there were a number of such reasons, the combination of which joined together made it all the more imperative that the warning should be heeded. Presumably, 36 hours. This must be a typographical error. The length was 888 km. Bruce Stanes was a road maintenance inspector whose employment required him to travel along the Tanami Track twice a month and who had travelled on the track on 17 and 18 July 2001 to the Western Australian border. He took photographs of the road as he went. This is the same identification warning which had been given earlier in relation to the evidence of other witnesses. Photos 11, 12 and 13. Almost 5 ft 9 in. An extra 2–2.5 in. Objection had been taken to the admissibility of Sutisno’s evidence, but Martin CJ ruled the evidence in. The objection was in part based on the proposition that body mapping was not recognised by the broader scientific community. The point was raised again later on appeal and is discussed in Chapter 5. There are two ideas expressed in this passage. First, if there is a doubt about Sutisno’s opinion that the man in the CCTV footage is Murdoch, that opinion is to be put aside. In other words, before accepting the opinion evidence it needed to be proved beyond reasonable doubt. The reason for this is that the opinion is an ultimate conclusion which the expert has arrived at after consideration of all of the evidence available to the expert. But the jury has available to it other evidence not available to the expert. Hence, if the opinion is put aside, the similarity in the features which Sutisno identified could be used as circumstantial evidence (strand-type evidence) which could support other circumstantial evidence leading to a conclusion that the man in the footage was Murdoch. Here the Chief Justice has directed that if the footage was not of sufficient quality to draw any conclusions, or if there is a doubt about that, then the whole of Sutisno’s evidence should be put aside. (1993) 178 CLR 193; 117 ALR 600. This was, arguably, a very favourable direction to the accused because it is hard to see how such a finding could be reached without, at the very least, rejecting the DNA evidence, which is not mentioned in this context. This canopy was made in August 2001, not 2005. This is, again, an instruction to the jury not to use evidence as evidence of propensity. Strictly speaking, it was not essential to prove that the accused was solely motivated to avoid detection for the crimes. He might also have had other motives. It would be sufficient if one of the motives was to distance himself from the crime. The Chief Justice does not mention this explicitly at this point, although the point is made later in his address. Here the Chief Justice makes the point that the change in appearance might have had more than one motive. This was a wise direction by the Chief Justice. There are cases of high authority to the

24

25 26

27 28 29

30

31 32 33

34

35

effect that inferences adverse to an accused should not ordinarily be drawn in criminal cases where the rule in Browne v Dunn (1894) 6 R 67 has not been properly complied with. Mr Pearman was a forensic scientist from Adelaide who had been asked to review the laboratory file in relation to the DNA samples collected from the scene and to comment upon the methods and protocols in place in the laboratory in Darwin. An exhibit liaison officer employed in the Darwin laboratory. Megan Hibble was not called to give evidence. As a general rule, this is not necessary if the person in charge of the laboratory work — in this case, Carmen Eckhoff — is called and no objection is taken. See Photo 21. See Photo 22. The fact that the blood was wet when it left a stain on the back of the T-shirt indicated a narrow time frame within which Murdoch and Lees came into contact. Also, the location of the stain is important because it is consistent with the allegation that Murdoch had hold of Lees from behind. So it is not just the fact that the DNA matched Murdoch’s DNA — the circumstantial facts include these other circumstantial facts as well. This theory is put forward because it satisfies the requirements that the blood was still wet at the time, and it focuses upon a time relatively close to the actual assault when both Murdoch and Lees were in the same place, at the Red Rooster, and it was put that the blood could have been deposited there by Lees leaning against a door frame or the back of a seat, so that it became smudged. An Ansett ticket for Lees to fly from Brisbane to Sydney and back while Falconio was planning to be in New Guinea. Photo 17. Sgt Paul Sheldon was a forensic examiner with the South Australian Police, whose specialty was tyre and shoe impressions. His evidence did not produce anything useful, and he was called, it would appear, more to satisfy curiosity which the jury may have had if he had not been called. He was not called to give evidence on this subject when he originally gave evidence but was later recalled to rebut the suggestion that he may have had access to the cable ties while they were in the exhibit room in South Australia when Cnst Sandry took the ties with him, at the time the Northern Territory Police intended to interview Murdoch in Yatala prison. Sergeant Sheldon had no memory of having had access to the cable ties but said that the protocol would have required him to use gloves if he had looked at them. The defence was trying to establish the possibility of contamination of the cable ties while in the exhibit room in Adelaide. However, as the Chief Justice points out, the area of the cable ties where the positive sample was taken was from the inside deepest layers of the adhesive tape, which was stuck to the cable ties when they were made into manacles, so the chances of contamination were very remote. According to Hepi, the purpose of collecting cigarette butts was to find evidence that proved that Murdoch had been at the house in Sedan, at a time when Hepi believed Murdoch had stolen his property. He said that although the butts arrived he did nothing with them and did not give them to the police because he did not see how they would be relevant to the police enquiry. If this had occurred, surely it would had raised some real questions about integrity, given that the cable ties had already been tested by Carmen Eckhoff.

[page 303]

CHAPTER FIVE THE APPEALS 5.1 After his conviction and sentence, Mr Murdoch exercised his right to appeal, both against his conviction and sentence, to the Court of Criminal Appeal.1 At the hearing of the appeal in December 2006 Murdoch was represented by Ian Barker QC, Grant Algie and Ian Read. The Crown was represented by Rex Wild QC, Josephine Down and Anne Barnett. There were eight grounds of appeal argued: Ground 1: That the trial judge had erred in admitting Ms Lees’ evidence identifying Murdoch and his dog. This ground was divided into four subcategories: — internet identification; — photo-board identification; — dock identification; and — dog identification. As to ground 1, the essential criticism was that the trial judge had wrongly failed to exercise his discretion to reject this evidence because it was not spontaneous or reliable, and it was tainted in all the circumstances; alternatively, its probative value was outweighed by its unfair prejudice to Murdoch. The principal argument rested upon the possibility of displacement from seeing the Internet photo. The court unanimously dismissed these contentions.2 Ground 2: That the trial judge had erred in instructing the jury that if they had found that Murdoch had lied about whether he had stopped at the truck stop, this could be used as evidence of a consciousness of guilt of the offences charged. The essence of this submission was that consciousness of guilt could not be drawn from such a finding as it was not forensically linked with the crime at Barrow Creek. The court rejected this argument as ‘plainly

untenable’ because the trial judge left it to the jury only as a piece of circumstantial evidence, and nothing more.3 Grounds 3 and 4: These grounds challenged the admissibility of the evidence relating to Murdoch’s possession and ownership of firearms and the use of that evidence as circumstantial evidence pointing towards the accused’s guilt. The substance of this submission was that the evidence was irrelevant or, alternatively, should have been rejected on the ground

[page 304] that its probative value was outweighed by unfair prejudice to the accused. These grounds were also dismissed. Although the evidence could have been misused as evidence of bad character and evidence of mere propensity, it was inevitable that evidence of bad character would be before the jury in any event because of the relevance of the possession of drugs etc, and, since the trial judge had carefully and properly instructed the jury not to reason in this way, and because the evidence was an important piece of circumstantial evidence, it had been properly admitted.4 Ground 5: This ground challenged the admissibility of the evidence of Ms Allan, Mr Johnston and Mr Hepi that Murdoch was the person shown in the truck stop video. The appellant’s argument was that it was impermissible to permit lay witnesses to give evidence of recognition of the accused any probative value, because the video evidence was of such poor quality and these witnesses did not enjoy any advantage which the jury itself would have had from viewing the images. It was also submitted that because the images were of poor quality, the admission of the evidence was inconsistent with the admission of the expert evidence of Dr Sutisno. The court rejected these submissions, holding that the evidence fell within an exception to the rejection of lay opinion evidence based on recognition from photos, referring to the judgment of Kirby J in Smith v R,5 where his Honour said: In past decisions, it has been observed that such identification evidence may be relevant if the jury require further assistance on the

interpretation of photographs; if the appearance of the accused has changed and the witness can testify to the specific appearance at the time of the offence; or if the witness has an advantage over the jury based on sufficient familiarity with the accused or other expertise. Furthermore, the evidence of those witnesses did not positively identify Murdoch, as it went no further than that there were similarities which were based on their intimate knowledge of Murdoch, the particular features of similarity to which they referred, the fact that Murdoch had changed his appearance, of which they were all well aware, and the fact that the trial judge had told the jury that they were not to make their own assessment based on these same images.6

[page 305] Ground 6: That the trial judge had erred in admitting the evidence of Hepi that the person in the truck stop video was Murdoch. This argument was rejected for much the same reasons as were dealt with in ground 5. Although Hepi had in cross-examination purported to make a positive identification of Murdoch from the video, this was a spontaneous comment made in cross-examination, whereas the substance of Hepi’s evidence depended upon specific characteristics of similarity which he had identified in his evidence. As to the other complaints made (which related to Hepi’s antagonism towards Murdoch, as well as other matters), the court said this went to the weight of the evidence rather than its admissibility.7 Ground 7: That the trial judge had erred in admitting the evidence of Sutisno, because it was not established that body mapping, face and body mapping, or posture comparison were recognised fields of specialist knowledge, nor was it established that Sutisno was an expert in any identified field of specialised knowledge relevant to her evidence. There was no objection to facial mapping. After considering the evidence and the authorities in Australia and England in some detail, the court concluded that the evidence of body mapping, or facial and body mapping, was not admissible as expert evidence

on the grounds asserted by the appellant and should not have been led. Nor should Sutisno have been permitted to assert positively that the images were those of the appellant. However, she could have given evidence of any similarities or dissimilarities between the facial features in the video as compared with the appellant, and also with respect to similarity of the body and movements which were not apparent to the jury.8 Although this ground was upheld, the court held that there was no miscarriage of justice because the evidence properly admitted at the trial clearly established Murdoch’s guilt beyond reasonable doubt.9 Consequently, the appeal against conviction was dismissed. Ground 8: That the trial judge had fixed a non-parole period which was manifestly excessive in all the circumstances. The effect of the appellant’s argument was that there were no aggravating features, such as those referred to in the legislation (sexual offences; multiple murders) which demanded such a high minimum term, and the term actually set meant that the appellant would probably die in prison. The court rejected this argument because the killing was cold-blooded and premeditated, the accused showed no remorse, the other offences were inherently serious

[page 306] and there were no mitigating factors. The court held that it had not been shown that the sentence was manifestly outside of the range of a reasonable sentence, and dismissed this ground as well.10 The appeals against conviction and sentence were both dismissed. 5.2 From this decision, Murdoch sought special leave to appeal to the High Court. The grounds sought to be argued were: alleged error in the admission of identification evidence; and alleged error in the application of the proviso, that is, the decision to dismiss the appeal notwithstanding that the court found that in material respects the evidence of Sutisno should not have been admitted into evidence. Counsel for Murdoch were David Grace QC and Ian Read. Rex Wild QC

and Anne Barnett appeared for the Crown. The application was heard on 21 June 2007 before Gleeson CJ, Hayne and Callinan JJ. Because it was an application for special leave to appeal, the appellant needed to show at the very least that the judgment of the Court of Criminal Appeal was attended with sufficient doubt to warrant the granting of special leave. The application was refused, the court merely observing that it could see no error in the reasoning of the Court of Criminal Appeal and that the proposed grounds had insufficient prospects of success to warrant the grant of special leave. As is customary in these circumstances, no detailed reasons were given. Since then, Murdoch has lodged an application for leave to appeal against his conviction for a second time, and an application for an extension of time. The proposed second appeal related to a claim that the prosecution had coached some of the prosecution witnesses. This claim was strongly denied. Murdoch has since withdrawn these applications. There would have been formidable legal obstacles in the way of a second appeal, which I will not canvass here. Suffice it to say it would take something quite extraordinary before Murdoch could overcome these obstacles, such as, for example, incontrovertible evidence that Falconio is still alive, and even then it would not be easy. Doctor Sutisno and Professor Henneberg have in recent times been called to give evidence in other cases about similarities between suspects and a person captured on CCTV images. In general, body mapping has been rejected as not an area of scientific expertise.11 In Honeysett v R12 Henneberg gave evidence of similarities based on CCTV footage between

[page 307] images of an armed robber holding up a hotel and images of the suspect while in a holding cell. The CCTV footage showed the offender wearing a covering of white material, which shrouded the head and face apart from a slip showing the eyes, dark clothing covering the rest of the body, and gloves. There was a small area of skin visible between the gloves and the end of the cuff of the sleeve. Henneberg made physical comparisons between the

offender and the suspect, and concluded that there was a high degree of anatomical similarity between them, and that there were no discernable dissimilarities. This evidence was objected to, but admitted at the trial. Sutisno was called by the defence at the trial to rebut Henneberg’s evidence. Upon conviction, an appeal to the New South Wales Court of Criminal Appeal was unsuccessful. On appeal to the High Court, the Crown conceded that it would have been open to the prosecutor to have invited the jury to make the same comparisons as Henneberg had made. The High Court unanimously allowed the appeal, observing that Henneberg’s opinion was not based wholly or substantially on his expertise as an anatomist, and his evidence gave the unwarranted appearance of science to the prosecution case that the appellant and the offender were the same person. Even though the evidence sought to be admitted was only circumstantial evidence, rather than evidence of a positive identity, it was not admissible because it did not rely upon any specialised knowledge or skill. This decision was based upon the provisions of the Evidence Act 1995 (NSW) relating to the admission of expert opinion evidence, but I think it can be fairly argued that the result would have been the same at common law. 5.3 The Murdoch trial is a good example of the dangers of admitting identification evidence, why those dangers exist, and how, in a given case, those dangers may either result in the exclusion of the evidence, or, if the evidence is admitted, how much weight can be attached to it. The factors which go to the weight of this kind of evidence were thoroughly canvassed by the trial judge. In some cases, the trial judge in his summing up discounted the eye-witness identification evidence as plainly unreliable for the reasons which he gave, while in other instances his summing up indicated that the evidence was much more likely to be of assistance, assuming that it was accepted as truthful and accurate. In some cases, such as the evidence of Lees, the evidence was direct evidence of identity. In other cases, such as the evidence of the Shell Truck Stop CCTV footage, it was only a piece of circumstantial evidence. The case is also illustrative of how circumstantial evidence can be used to reach an inference, which is circumstantial evidence of another circumstantial fact, and how circumstantial evidence can prove both positive and negative facts.

1 2 3 4 5 6 7 8 9 10 11 12

Angel ACJ, Riley J and Olsson AJ. Murdoch v R [2007] NTCCA 1 at [41]–[146]. Above n 2 at [147]–[169]. Above n 2 at [170]–[202]. (2001) 206 CLR 650; 181 ALR 354 at CLR 656. Murdoch v R [2007] NTCCA 1 at [203]–[236]. Above n 2 at [237]–[244]. Above n 2 at [245]–[300]. Above n 2 at [301]–[368]. Above n 2 at [369]–[378]. R v Tang (2006) 65 NSWLR 681; Morgan v R (2011) 215 A Crim R 33. (2014) 253 CLR 122; 311 ALR 320.

[page 309]

APPENDIX TRIAL EXHIBIT PHOTOGRAPHS

Photo 1

Exhibit P29 showing handcuffs made from tape and cable ties

Photo 2

Exhibit P134A showing Ms Lees’ lip balm on the ground [page 310]

Photo 3

Exhibit P69 showing the removed duct tape from Ms Lees’ legs and hair that were stored in a tool box in the vehicle

Photo 4

Exhibit P13 showing Ms Lees’ injuries and clothing [page 311]

Photo 5

Exhibit P62 showing Kombi Van parked some distance off the highway

Photo 6

Exhibit P78 showing a large pool of blood that was located underneath the pyramid of dirt [page 312]

Photo 7

Exhibit P80 showing that the largest stain was over an area 60 cm by 40 cm [page 313]

Photo 8

Exhibit P11A showing the lip balm tube and some black duct tape under some leaves beneath a small tree in the area near where the top of the tube had been found previously

Photo 9

Exhibit P161 showing a blood stain found on the back of the T-shirt worn by Ms Lees

[page 314]

Photo 10

Exhibit P32 showing the comfit of Ms Lees’ assailant [page 315]

Photo 11

Exhibit P253 showing suspect entering Shell Truck Stop

Photo 12

Exhibit P254 showing suspect leaving Shell Truck Stop [page 316]

Photo 13

Photo 14

Exhibit P252 showing Toyota at Shell Truck Stop

Exhibit P48 showing photoboard which included a photo of Mr Murdoch (10) which Ms Lees chose as that of her attacker

[page 317]

Photo 15

Exhibit P214 showing close view of the area of staining on rear of Ms Lees’ T-shirt

Photo 16

Exhibit P236 showing gunshot residue being expelled from a gun after it had discharged, to illustrate the point that the residue did not proceed further than about 3 m from the end of the barrel [page 318]

Photo 17

Exhibit P170A showing a close view of cable ties marked

Photo 18

Exhibit P122A showing location of lip balm lid [page 319]

Photo 19

Photo 20

Exhibit P135 showing two pieces of black tape

Exhibit P61 showing roof of Kombi Van in bushland [page 320]

Photo 21

Photo 22

Exhibit P212 showing rear of Ms Lees’ T-shirt

Exhibit P213 showing area B on Ms Lees’ T-shirt where the blood sample was taken

INDEX References are to paragraphs

A Addresses to jury defence, counsel for …. 2.1–2.35 prosecutor, final address by …. 3.1–3.41

Aggravation circumstances of, judge’s summing up, to jury …. 4.5

Aileron witnesses defence address to jury in respect of …. 2.5 judge’s summing up to jury …. 4.9 prosecutor’s final address in respect of …. 3.23

Algie, Grant appeal, defence counsel on …. 5.1 counsel for accused, legal personnel in case …. 1.12 jury, counsel for defence address to …. 2.1–2.35 structure of …. 2.1

Allan, Beverley appeal, grounds of …. 5.1 judge’s summing up to jury about evidence of …. 4.29 truck stop video, identification evidence in respect of …. 1.9

Appeals conviction, against sentence and …. 5.1–5.3 High Court, application for special leave to appeal to …. 5.2

Arrest Hepi, James …. 1.4 Murdoch, Bradley John Falconio, for murder of …. 1.6 rape, on charges of abduction and …. 1.4

Assault elements of offence of unlawful, judge’s summing up, to jury …. 4.5

B Barker, Ian QC appeal, defence counsel on …. 5.1

Barnett, Anne appeal, Crown counsel on …. 5.1 junior counsel for Crown at trial, as …. 1.12 special leave to appeal, Crown counsel on application …. 5.2

Barrow Creek crime scene, prosecutor’s final address in respect of …. 3.11 footprints found at …. 3.40 judge’s summing up to jury …. 4.11 events at …. 1.2

Both, Dr Katrine DNA, defence evidence from …. 1.6 defence counsel submissions in respect of …. 2.17 judge’s summing up to jury about …. 4.35 prosecutor’s final address in respect of …. 3.38

Brown, Pamela judge’s summing up to jury in respect of evidence of …. 4.27 prosecutor, final address in respect of evidence of …. 3.2

Brown, Robert defence address to jury …. 2.9 judge’s summing up to jury …. 4.7

Burden of proof judge’s summing up, to jury …. 4.3

C Cable ties …. 4.37 evidence of Murdoch making manacles from …. 4.38

Camper-trailer …. 2.27, 2.33, 3.18, 3.32 Chamberlain case …. 2.18 Circumstantial evidence …. 2.1, 2.7, 2.34 camper-trailer, in respect of …. 2.27, 2.33, 3.18, 3.32 defence counsel submissions …. 2.22, 2.33, 2.35 hair tie as …. 2.15, 2.24, 3.15 judge’s summing up to jury …. 4.8, 4.40 souvenir …. 3.35, 4.40 judge’s summing up, to jury …. 4.2, 4.4, 4.8, 4.14 positive facts, use to prove negative facts and …. 5.3 vehicle, as to …. 2.28

Cragan, Darryl distances, evidence about drugs, about routes and …. 1.9

Crime scene footprints found at …. 3.40 judge’s summing up to jury …. 4.11 prosecutor’s final address in respect of …. 3.11

D

Death defence address to jury …. 2.1 judge’s summing up to jury …. 4.6, 4.9 prosecutor’s final address …. 3.3

Deprivation of liberty …. 4.5 Dick, Gregory defence address to jury …. 2.5 judge’s summing up to jury …. 4.9

Distances evidence about routes and …. 1.9, 3.18 judge’s summing up to jury …. 4.17–4.18 Tanami Track …. 3.21 trip across …. 3.36

DNA profiling contamination …. 3.39 judge’s summing up to jury …. 4.36 deliberate, of cable ties …. 4.37 evidence explanation of …. 1.6 judge’s summing up to jury about …. 4.34, 4.35, 4.39 police search for …. 1.3 Murdoch, DNA match …. 1.6 Whitaker, testing by Dr Jonathan …. 1.6 prosecutor’s final address …. 3.38

Dog appeal, against admission of evidence identifying …. 5.1 appearance of attacker’s …. 1.5 defence address to jury …. 2.4

judge’s summing up to jury …. 4.30 prosecutor’s final address …. 3.6–3.7, 3.24

Down, Josephine …. 5.1 E Eckhoff, Carmen DNA, evidence about …. 1.6 defence counsel submissions …. 2.17 judge’s summing up to jury …. 4.8, 4.34 prosecutor’s final address …. 3.38

Edwards direction …. 4.26 Elliott, Tony …. 1.12 Evidence attacker’s dog, as to appearance of …. 1.5 belongings, about Falconio’s …. 1.8 CCTV footage, judge’s summing up to jury …. 4.22 circumstantial …. 2.1, 2.7, 2.34 camper-trailer, in respect of …. 2.27, 2.33, 3.18, 3.32 defence counsel submissions in respect of …. 2.22, 2.33, 2.35 hair tie as …. 2.15, 2.24, 3.15 judge’s summing up to jury …. 4.8, 4.40 souvenir …. 3.35, 4.40 judge’s summing up, to jury …. 4.2, 4.4, 4.8, 4.14 positive facts, use to prove negative facts and …. 5.3 vehicle, as to …. 2.28 defence evidence at …. 1.11 distances, about routes and …. 1.9, 3.18 facial mapping, Dr Sutisno’s evidence on …. 1.11

judge’s summing up to jury about …. 4.25 gun shot …. 1.7 identification, of Lees appeal, against admission of …. 5.1 dangers of admitting …. 5.3 defence address to jury …. 2.13 displacement effect …. 2.14 judge’s summing up to jury …. 4.13, 4.28 objection to admissibility of …. 1.5 prosecutor’s final address …. 3.12 recognition evidence, distinction …. 4.24 negative …. 2.1, 2.7 police search for …. 1.3 trial, Crown evidence at …. 1.11 truck stop defence address to jury in respect of identification …. 2.12 prosecutor’s final address in respect of …. 3.19, 3.27 vehicle in video, submissions about …. 3.29

F Facial mapping …. 1.11, 5.2 appeal, grounds of …. 5.1 judge’s summing up to jury about …. 4.25

Falconio, Peter background …. 1.1 Barrow Creek, events at …. 1.2 belongings, evidence about …. 1.8 birth …. 1.1 death

defence address to jury …. 2.1 judge’s summing up to jury …. 4.6, 4.9 prosecutor’s final address in respect of …. 3.3 Lees, relationship with Joanne …. 1.1 missing, whether, judge’s summing up to jury …. 4.6

Floyd, Anne defence address to jury in respect of …. 2.5 judge’s summing up to jury …. 4.9

G Grace, David QC …. 5.2 Guilty verdict judge’s summing up, to jury …. 4.5 jury, question from, where no body …. 4.43 unanimous, entry of …. 4.44

Gun shot defence address to jury …. 2.8, 2.23 evidence …. 1.7 judge’s summing up to jury …. 4.10 prosecutor’s final address …. 3.8, 3.16

H Haines, Jasper judge’s summing up to jury …. 4.27 prosecutor, final address …. 3.2

Hair tie …. 2.15, 2.24, 3.15 judge’s summing up to jury …. 4.8, 4.40 souvenir …. 3.35, 4.40

Henneberg, Professor facial mapping, defence evidence on …. 1.11, 5.2 judge’s summing up to jury …. 4.23 prosecutor’s final address …. 3.20

Hepi, James allegation against Murdoch of stealing …. 3.4 arrest of …. 1.4 bias, defence address to jury in respect of alleged …. 2.12 cable ties, evidence of Murdoch making manacles from …. 4.38 drug running, account of Murdoch’s …. 1.4 Johnston, telephone call from mobile in name of Brian …. 1.4 judge’s summing up to jury warning about evidence of …. 4.22 truck stop video, identification evidence in respect of …. 1.9 appeal, grounds of …. 5.1

High Court special leave to appeal, application for …. 5.2

I Identification evidence appeal, against admission of …. 5.1 dangers of admitting …. 5.3 defence address to jury …. 2.13 displacement effect …. 2.14 judge’s summing up to jury …. 4.13, 4.28 objection to admissibility of …. 1.5 prosecutor’s final address …. 3.12 recognition evidence, distinction …. 4.24

Innocence, presumption of …. 2.1

J Jamieson, Peter distances, evidence about routes and …. 1.9

Johnston, Brian telephone call from mobile in name of …. 1.4 truck stop video, identification evidence in respect of …. 1.9 appeal, grounds of …. 5.1

Jury addresses to defence, counsel for …. 2.1–2.35 prosecutor, final address by …. 3.1–3.41 guilty verdicts, entry of unanimous …. 4.44 law to be applied by, judge’s summing up …. 4.5 question from …. 4.43 summing up, trial judge’s, to …. 4.1–4.44 last section of …. 4.42 overview of case …. 4.41

K Kendall, Melissa defence address to jury …. 2.9 judge’s summing up to jury …. 4.7 prosecutor’s final address …. 3.23

L Lees, Joanne Barrow Creek, events at …. 1.2 Falconio, relationship with Peter …. 1.1

identification evidence appeal, against admission of …. 5.1 dangers of admitting …. 5.3 defence address to jury …. 2.13 displacement effect …. 2.14 judge’s summing up to jury …. 4.13, 4.28 objection to admissibility of …. 1.5 prosecutor’s final address …. 3.12 recognition evidence, distinction …. 4.24 injuries sustained by …. 1.2 Murdoch, recognition of …. 1.5 truth, as witness of judge’s summing up to jury …. 4.12 prosecutor’s final address …. 3.5, 3.9 United Kingdom, return to …. 1.3

Lies Edwards direction, judge’s summing up to jury …. 4.26 appeal, grounds of …. 5.1

Lip balm finding of tube of …. 3.40 judge’s summing up to jury …. 4.8

M Martin CJ summing up, trial judge’s, to jury …. 4.1–4.44 trial judge, legal personnel in case …. 1.12

Maxwell, Rachel gun shot evidence …. 1.7

judge’s summing up to jury about evidence of …. 4.29

McPhail, Julie gun shot evidence …. 1.7 truck stop video, identification evidence in respect of …. 1.9

Motive …. 3.41 Murder elements of offence, judge’s summing up, to jury …. 4.5

Murdoch, Bradley John admissions made by …. 1.12 appearance judge’s summing up to jury about …. 4.32 prosecutor’s final address in respect of …. 3.14, 3.25 arrest Falconio, for murder of …. 1.6 rape, on charges of abduction and …. 1.4 blood of defence address to jury …. 2.11 prosecutor’s final address in respect of consciousness of guilt …. 3.33 DNA match …. 1.6 drug running, Hepi’s account of Murdoch’s …. 1.4 evidence of defence counsel submissions in respect of …. 2.26 directions to jury about …. 4.33 Lees, recognition by …. 1.5 opportunity to commit crimes, judge’s summing up to jury …. 4.15, 4.16 rape, arrest on charges of abduction and …. 1.4 sentencing of …. 1.12 trips made by, prosecutor’s final address in respect of …. 3.17

vehicle bull bar, submissions in respect of …. 2.32 canopy, steel mesh sides …. 2.30, 3.17, 3.28 Crown expert in respect of …. 2.31 judge’s summing up to jury …. 4.21, 4.29 description, judge’s summing up to jury in respect of evidence about …. 4.29 prosecutor’s final address in respect of Toyota …. 3.13, 3.28 purchase and modification of …. 1.4, 3.31 Toyota vehicles, Panozzo as Crown expert on …. 2.29 judge’s summing up to jury …. 4.21 van, changes to …. 1.10, 3.31 defence counsel submissions providing innocent explanation for …. 2.25 judge’s summing up to jury about evidence of …. 4.32 weapons, judge’s summing up to jury about evidence of …. 4.31 appeal, grounds of …. 5.1 weight of evidence of, prosecutor’s final address in respect of …. 3.34, 3.37 Yatala prison, attempt to interview at …. 2.20

N Non-parole period appeal, grounds of …. 5.1

O Oatley, Michael Aileron witnesses defence address to jury in respect of …. 2.5 judge’s summing up to jury …. 4.9 prosecutor’s final address in respect of …. 3.23

Offences elements of, judge’s summing up, to jury …. 4.5

P Panozzo, John Toyota vehicles, as Crown expert on …. 2.29 judge’s summing up to jury …. 4.21

Police evidence, search for …. 1.3 Kombi Van evidence, as …. 1.12 examination of….1.3 set-up defence counsel submissions in respect of …. 2.21 prosecutor, final address in respect of …. 3.1

R Read, Ian appeal, defence counsel on …. 5.1 special leave to appeal, defence counsel on application …. 5.2

Ringrose, David canopy of vehicle, Crown expert …. 2.31 circumstantial evidence, defence address to jury about …. 2.34 prosecutor’s final address …. 3.25 judge’s summing up to jury …. 4.23

S Southerden, Ms registration plate, evidence about number …. 3.26

judge’s summing up to jury …. 4.15

Spring, Dr Gail facial mapping, defence evidence on …. 1.11

Stagg, Mr artist’s drawings made by …. 3.10 judge’s summing up to jury in respect of …. 4.29

Standard of proof judge’s summing up, to jury …. 4.3

Summing up trial judge’s, to jury …. 4.1–4.44

Sutisno, Dr Meiya defence counsel submissions in respect of evidence of …. 2.16 facial mapping, evidence on …. 1.11, 5.2 appeal, grounds of …. 5.1 judge’s summing up to jury about …. 4.25 judge’s summing up to jury about evidence of …. 4.23 prosecutor’s final address in respect of …. 3.20

T Tanami Track …. 3.21 trip across …. 3.36

Thatcher, Dr …. 2.19 Trial background to …. 1.1–1.12 Crown evidence at …. 1.12 legal personnel in …. 1.12

Truck stop

diesel fuel purchased at, prosecutor’s final address …. 3.22 judge’s summing up to jury about relevance of video …. 4.19, 4.20 recognition evidence from witnesses …. 3.30 appeal, grounds of …. 5.1

Twiggs, Mark …. 1.12 V Vehicle bull bar, submissions in respect of …. 2.32 canopy, steel mesh sides …. 2.30, 3.17, 3.28 Crown expert …. 2.31 judge’s summing up to jury …. 4.21, 4.29 description, judge’s summing up to jury …. 4.29 Kombi Van evidence, as …. 1.12 examination of …. 1.3 prosecutor’s final address in respect of Toyota …. 3.13, 3.28 purchase and modification of …. 1.4, 3.31 Toyota vehicles, Panozzo as Crown expert on …. 2.29 judge’s summing up to jury …. 4.21 van, changes to …. 1.10, 3.31 defence counsel submissions providing innocent explanation for …. 2.25 judge’s summing up to jury about evidence of …. 4.32

W Whitaker, Dr Jonathan defence counsel submissions in respect of evidence of …. 2.16 DNA testing by …. 1.6 judge’s summing up to jury …. 4.35

White, Professor Jason …. 1.9 Wild, Rex QC appeal, Crown counsel on …. 5.1 DPP, as counsel for Crown at trial …. 1.12 final address by prosecutor …. 3.1–3.41 special leave to appeal, Crown counsel on application …. 5.2

Woodford, Dr Noel …. 1.7 Wrobel, Harold gun shot evidence …. 1.7 judge’s summing up to jury …. 4.10