R v Adams (No 6)

Citation: R v Adams (No 6) [2016] NSWSC 1565
Court: Supreme Court of New South Wales
Date: 4 November 2016
Judge: Button J

Background

The accused stood trial on a single count of murder, alleged to have occurred on 24 September 1983 in Sydney. The victim disappeared after being in the accused's company in the early hours of that morning and was never seen again. No body was ever recovered.

The trial proceeded by judge alone, following a prior order to that effect (see R v Adams (No 2) [2016] NSWSC 1359). The Crown put a wholly circumstantial case, relying on the doctrine of felony murder as it applied in 1983. Under that doctrine, a killing that occurs in the course of committing a serious felony (here, rape involving violence) constitutes murder.

A central pillar of the Crown's circumstantial case was tendency evidence: the proposition that, as at the date of the alleged murder, the accused had a demonstrated tendency to choke or strangle women to overcome their resistance to non-consensual sexual intercourse.

Legal Issues

• Whether the Crown could prove beyond reasonable doubt, on a wholly circumstantial case, that the accused murdered the victim under the felony murder doctrine as it operated in 1983
• Whether tendency evidence, drawn from the accounts of three other women, established that the accused had a propensity to rape and strangle women
• Whether mitochondrial DNA analysis and hair comparison evidence linking hairs found in the accused's car boot to the deceased was sufficiently reliable and probative
• Whether all reasonable alternative hypotheses for the evidence, including innocent explanations for the accused's conduct, could be excluded beyond reasonable doubt

Decision

Button J admitted and acted upon tendency evidence from three women (referred to by pseudonyms in the judgment) who alleged that the accused had raped and strangled them on separate occasions. His Honour was satisfied, beyond reasonable doubt, that the accused had indeed raped and strangled each of those women, and that these incidents established a proven tendency to use choking or strangulation to overcome resistance to non-consensual intercourse.

The court examined mitochondrial DNA evidence relating to hairs found in the boot of the accused's vehicle. His Honour noted the recognised limitations of this form of forensic evidence, as required under s 165(1)(a) of the Evidence Act 1995 (NSW), but concluded that the hair evidence was nonetheless capable of connecting the victim to the accused's car. The hairs were not disputed at trial to be from the deceased. The court also noted that, within 48 hours of his last known contact with the deceased, the accused undertook activity involving the boot of his vehicle and a hose, which his Honour considered significant.

Button J considered and rejected each alternative hypothesis advanced by the defence. He found the similarities between the accused's interactions with the tendency complainants and his interaction with the deceased to be marked, and that the deceased had never been seen again after being in the accused's company. The accused had ample opportunity to dispose of the body. The possibility of a sudden, non-violent death during consensual intercourse was rejected as not reasonable on the evidence.

His Honour was satisfied beyond reasonable doubt that, while alone with the deceased in his vehicle in the early hours of 24 September 1983, the accused choked or strangled her with the intention of having sexual intercourse without her consent. That voluntary act caused her death. The accused then disposed of her body, which had at some point been in the boot of his car.

Orders Made

• The accused, Robert John Adams, was found guilty of murder on the count alleging the murder of Mary Louise Wallace on 24 September 1983 at Sydney, New South Wales.

Key Takeaways

• A conviction for murder under the felony murder doctrine, as it operated in New South Wales in 1983, could be established entirely through circumstantial evidence, without a body, provided all reasonable alternative hypotheses were excluded beyond reasonable doubt.

• Tendency evidence from multiple complainants, each found credible beyond reasonable doubt, can cumulatively establish a proven tendency relevant to a murder charge where the alleged killing arose in the course of an offence reflecting that tendency.

• Mitochondrial DNA and hair analysis evidence carries recognised limitations acknowledged under s 165(1)(a) of the Evidence Act 1995 (NSW), but remains capable of forming part of a circumstantial case when weighed alongside other evidence.

• The Supreme Court applied the standard framework for circumstantial cases, drawing on Plomp v The Queen (1963) 110 CLR 234 and Shepherd v The Queen (1990) 170 CLR 573: a guilty verdict requires that the inference of guilt be the only rational inference available from the whole of the evidence.

• No pre-trial ruling on tendency evidence was revisited at trial, even though the Crown ultimately called only three of the four tendency complainants whose evidence had been the subject of the earlier admissibility judgment; defence counsel made no application to reopen the pre-trial ruling on that basis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 17A, 18, 37, 61D, Pt 1A
- Evidence Act 1995 (NSW), ss 79, 165(1)(a), 165B

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- Browne v Dunn (1893) 6 R 67
- Edwards v The Queen (1993) 178 CLR 193
- Green v The Queen (1971) 126 CLR 28
- HML v The Queen (2008) 235 CLR 224
- Peacock v The King (1911) 13 CLR 619
- Plomp v The Queen (1963) 110 CLR 234
- RPS v The Queen (2000) 199 CLR 620
- Ryan v The Queen (1967) 121 CLR 205
- Shepherd v The Queen (1990) 170 CLR 573
- R v Adams [2015] NSWSC 1960 (pre-trial tendency ruling)
- R v Adams (No 2) [2016] NSWSC 1359 (judge-alone order)
- DJV v R [2008] NSWCCA 272
- Lane v R (2013) 241 A Crim R 321
- R v Cook [2004] NSWCCA 52