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R V Murdoch the Falconio Case A Study in Identification
and Circumstantial Evidence 1st Edition Dean Mildren
Digital Instant Download
Author(s): Dean Mildren
ISBN(s): 9780409342208, 0409342203
Edition: 1
File Details: PDF, 3.74 MB
Year: 2015
Language: english
 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
 LexisNexis
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 LexisNexis, Miamisburg, OHIO

National Library of Australia Cataloguing-in-Publication entry

Author: Mildren, Dean.

Title: R v Murdoch: The Falconio Case: A Study in
Identification and Circumstantial Evidence.
Edition: First edition.
ISBN: 9780409342192 (pbk).
9780409342208 (ebk).
Notes: Includes index.
Subjects: Murdoch, Bradley. Falconio, Peter. Criminal
investigation — Northern Territory. Evidence,
Criminal — Northern Territory. Evidence,
Circumstantial — Northern Territory.
Dewey Number: 363.25099429.

© 2015 Reed International Books Australia Pty Limited trading as

LexisNexis.
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form whatsoever without such permission.
Inquiries should be addressed to the publishers.
Typeset in Futura and Minion Pro.
Printed in China.
Visit LexisNexis Butterworths at www.lexisnexis.com.au
 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 cross-
examining 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 mug-
shots 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 R v Murdoch [2005] NTSC 80.

2 Green v R (1971) 126 CLR 28; [1972] ALR 524.
3 Cheatle v R (1993) 177 CLR 541; 116 ALR 1.
4 Grey v R (2001) 184 ALR 593; 75 ALJR 1708; Mallard v R (2005) 224 CLR 125; 222
ALR 236.
5 R v Apostilides (1984) 154 CLR 563; 53 ALR 445; Diehm v Director of Public
Prosecutions (2013) 203 ALR 42; 88 ALJR 34.
6 Mallard v R (2005) 224 CLR 125; 222 ALR 236.
7 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.
8 See, for example, Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505.
9 The charge sheet.
10 R v Basher (1989) 39 A Crim R 337 at 339–40.
11 That is to say, the formal charges will be read and the accused will be required to plead.
12 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).
13 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.
14 Cited by Murphy J in Alexander v R (1981) 145 CLR 395; 34 ALR 289 at CLR 435.
15 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.
16 Festa v R 208 CLR 593; 185 ALR 394.
17 Domican v R (1992) 173 CLR 555; 106 ALR 203.
18 (2001) 208 CLR 593; 185 ALR 394.
19 Wigmore on Evidence, vol 9 (Chadbourn, rev ed 1981), pp 412–14, para 2497.
20 (1984) 153 CLR 521; 51 ALR 225.
21 (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
Another Random Scribd Document
with Unrelated Content
naista, jota rakastan, jota rakastan kokonaan sekä hengen että
ruumiin puolesta, mutta en ketään muuta ihmistä. Kuinka minä
kadehdin niitä, jotka rakastavat äitiänsä ja voivat milloin tahansa
heittäytyä äitinsä kaulaan! Sellaisia olen nähnyt ja minä tunnustan
että sellainen suhde on kaunista. Mutta miksi minä yksin olen
tällaiseksi jäänyt, miksi, miksi, miksi?…"

Onneton poika itki, kun hän tätä ajatteli.

"Ehkä siksi että lapsuudessani olen liian varhain vieroitettu

äidistäni ja että minuun siellä mailmalla on tullut paljon sellaista, jota
hän ei ymmärrä. Hän ei ikinä ole ymmärtänyt minun omituista
sairauttani ja on aina arastellut siitä puhua. Minä taas olen siitä aina
tahtonut puhua suoraan ja peittelemättä, mutta hän on sitä
hävennyt. Äidin hienotunteisuus on juuri sitä väärää häveliäisyyttä,
joka tuottaa turmion niin moneen hyvään kotiin. Hän on tarkoittanut
parastansa, mutta antanut huonointansa. Kun minä tämän olen
huomannut, on se minussa ensin synnyttänyt surun, ettei äiti osaa
koskettaa sisälliseen ihmiseeni, ja sitten vähitellen on minussa
kehittynyt häntä kohtaan tuo julma poistyöntämisen tunne, joka ei
ole mitään muuta kuin kärsimyksen vuoksi nurinpäin kääntynyt
rakkauden tunne. Se on kehittynyt minussa hirveäksi sielun taudiksi,
ja kuta enemmän hän nyt koettaa minua lähestyä, sitä enemmän
minä työnnän häntä luotani. Tässä ei auta omantunnon ääni, joka
minut rikki raatelee ja joka on se raskain taakka mitä elämässäni
kannan. Voi minua, voi poikaa joka ei rakasta äitiänsä! Hän tuntee
olevansa tuomittu siihen helvettiin, joka polttaa häntä täällä maan
päällä eivät haudantakaiset rangaistukset häntä hirvitä, sillä tässä
elämässä oli jo kylliksi…"
 Ja taas painoi onneton poika poskensa vasten pienen varsan
kaulaa. Se katseli häntä veitikkamaisen lauhkeasti silmiin ja tavoitteli
leikillä purrakseen hänen kättään. Eläimen terve viattomuus vaikutti
nuorukaiseen hyvästi: "Jos olisi terve kuin eläin" hän ajatteli, "niin
eivät sielussa raivoaisi nämät pimeyden myrskyt, ja ihminen minussa
olisi hyvä."

Metsätieltä kuului askeleita ja puhetta. Nuorukainen säpsähti. "Ne

ovat isä ja äiti, jotka tulevat kotiin", Hän piiloutui puiden taa ja antoi
vanhusten mennä ohitsensa. Hän näki äitinsä raskaasti
nojautuneena isän käsivarteen kulkevan kömpelöin askelin pitkin
kivistä tietä. Molemmat olivat he jo vanhuuttaan köyristyneet.
Nuorukainen katseli heidän kulkuaan puun takaa ja hänen sydäntään
viilsi kuin veitsellä. Hän ajatteli: "Kuinka monta kertaa olen tuntenut
omantunnon vaivoja siitä etten ole äitiäni taluttanut käsivarresta,
että olen hänet tahallani jättänyt muiden autettavaksi! Miksi, oi
Jumalani, on minulle niin äärettömän vastenmielistä ruumiillani
häneen koskea?"

Vanhusten askelten ääni hiljeni vitkaan, ja he katosivat näkyvistä.

Poika jäi metsään ja istahti kannolle. Puristi käsillään ohimoitaan ja
peittäen silmänsä jäi liikkumattomaksi.

"Kunnioita isääs ja äitiäs, ettäs menestyisit ja kauvan eläisit maan

päällä." Tätä raamatunlausetta oli hän satoja kertoja ennenkin
miettinyt. "Sentähden ei minulla ole menestystä elämässä, etten
rakasta vanhempiani. Ja sentähden en kauvan voi elää. Minulle tulee
huono loppu ja se loppu tulee pian. Mutta", jatkoi hän ajatuksiaan
hetken päästä: "jos en näin kauheasti kärsisi huonosta elämästäni,
niin se todistaisi, että olisin vielä huonompi. Minussa on siis jäljellä
vielä hyvän kipuna. Jos en sitä voi puhaltaakkaan suureksi,
lämmittäväksi tuleksi, niin voin ehkä varoa, ettei se pääse ainakaan
sammumaan, tämä viimeinen hyvyyden kipinä." Ja nuorukainen
vähän tyyntyi, että vielä oli löytänyt jonkun kiinnityskohdan elämään.
Äsken, kun hän salaa katseli vanhempiaan, oli hän ollut valmis
hirttämään itsensä tunnon vaivoissa samaan puuhun, jonka takaa
hän äitiään katsoi.

Vasta illan pimettyä hiipi hän kotiinsa. Mutta heti kun hän näki
äitinsä, joka ystävällisesti häneltä tiedusteli, missä hän oli ollut,
valtasi hänet uudella voimalla tuo onneton poistyöntämisen tunne.

Ja samana yönä hän, kurjuutensa puuskassa, kuitenkin teki minkä

teki — —

Ystävämme Polykarpus

Jo koulunpenkillä on hänet huomattu. Pappa oli arvokas mies ja

veljet tunnettuja isänmaallisia puhujia. Ja kaikilla tuollaiset komealle
kilahtelevaiset akateemiset arvonimet, Se on ollutkin kunnia-asia
koko suuressa suvussa, että perheiden pojista pitää tulla vähintään
filosofiian-maisterit sekä että heidän sitten pitää koettaa tehdä
itsensä jollakin tavalla huomatuiksi yhteiskunnassa. Jos joku ei ole
saanut kandidaatti-tutkintoa suoritetuksi, niin sellainen on ikäänkuin
pyyhkäisty pois sukunsa kronikoista. Mutta hän, joka on palannut
isäinsä majaan tohtorin valtakirja taskussaan, on otettu vastaan
ylpeällä riemulla, pappa-ukko on rykäissyt kaikuvalla äänellään:
"jassoo — sinä olet nyt filosofiian tohtori!" johon poika heilauttaen
tukkaansa vielä kaikuvammin on rykäissyt vastaan että "hömm…
joo!" Ja äiti — joku Sursillien jälkeläinen, tuo hiljainen, luja
pohjolainen nainen, jonka tärkein tehtävä on ollut synnyttää niin
paljon terveitä poikia kuin mahdollista maailmaan — on tervehtinyt
tullutta sankaria äidillisillä sanoillaan: "Adolf, vill du int' ha' äggtoddy
efter resan?"… Mutta oikeastaan he eivät kukaan olisi munatotia
tarvinneet tässä suvussa, sillä heillä kaikilla on isiltä peritty mitä
mainioin kurkku, jonka äänitorvi aina pysyy selvänä ja antaa
juhlallisen pontevia kajahduksia. Tämän suvun traditsiooneihin
kuuluu, että ollaan innokkaita fennomaaneja julkisuudessa, mutta
kodeissa viljellään ruotsinkieltä ja pidetään se ehdottomasti
kuuluvana sivistykseen. Onhan Runeberg ruotsiksi laulunsa
helähyttänyt ja suuri Snellman ruotsiksi puheensa huutanut,
selväähän on että ruotsinkielisen kulttuurin pohjalta tässä
ponnistellaan suomalaisuuden suuria ihanteita kohden. Pääasia onkin
että povessa asuu tuollainen kevätraikas ihanne, josta alituisesti voi
rinnan täydeltä puhua, puhua…

Tällaisesta isänmaallisesta suvusta hän oli syntynyt pikku-Posse,

joka jo koulunpenkillä huomattiin. Polykarpus oli hänen oikea
nimensä, mutta Posseksi häntä kutsuttiin. Oikeastaan ei häntä
toverien keskuudessa olisi huomattu muuksi kuin herraspojaksi,
mutta opettajat ne hänet ensin merkitsivät. He antoivat heti alussa
pikku-Possen tuntea, että kyllä tiesivät, mitä miehiä vanhemmat
veljet olivat, ja puhuttelivat poikaa aina vähän erikoisemmin kuin
muita poikia. Puhuttelipa rehtori häntä ensi tunnilla ruotsiksikin, joka
tapaus herätti tavatonta huomiota supi-suomenkielisessä koulussa.
Pian saivat toverit uuden tulokkaan tähden myös nauraa, kun Posse
eräällä uskonto-tunnilla kovalla äänellä kertoi, kuinka Mooses särki
kultavasikan ja teki siitä "pulveria". Tällainen selitys oli aiheutunut
siitä, että poika oli hutiloimalla lukenut läksynsä, mutta ei tahtonut
näyttää epävarmuutta vasikka-jutun suhteen, vaan lateli tietonsa
umpimähkää. Vilkas hän oli pikku-Posse, herttainen ja
sukkelasanainen. Vallatonkin hän oli ja aina valmis pieniin
koirankureihin niinkuin terveiden poikien pitääkin olla. Ei ollut
harvinaista että opettajan, keskellä tuntia, täytyi katkaista
opetuksensa, koska pikku-Possen toinen saapas hurjasti kierteli
ympäri luokkaa, tai sieltä, jossa Posse istui, kuului kimeä kiljahdus,
taikka liituinen jäniksenkäpälä lennähti vasten ultimuksen poskea.
Kyllähän häntäkin muistutettiin siivommin käyttäytymään, mutta ei
milloinkaan saatu todistetuksi että hän oli ollut syypää. Ja totta onkin
että aina joku muu oli ollut keksinnön tekijä ja Posse ainoastaan
kiitollinen välikappale yleisessä metelissä. Aina häntä vedettiin
sääristä tai käsistä, ja voimistelutunneilla häntä suorastaan
rääkättiin, niin että hän kamalasti parahteli kuin mikäkin marttyyri
piinapenkissä. Tähän lienee ollut syynä se, että Posse poikasena oli
hyvin hempeä ruumiiltaan, pullovatsainen, keikkaselkä ja vetkula
jäseniltään, niin ettei jaksanut nostaa edes omaa painoansa — ja
tovereista sentähden oli hirveän hauskaa leipoa häntä kuin
tahdotonta taikinaa, pyöritellä häntä pitkin lattiaa tai käyttää häntä
kuin höyhenpatjaa alustanaan. Tämä muokkaus, vaikka se näyttikin
syrjästä katsoen vähän peloittavalta, teki pikku-Possen terveelle,
mutta hemmotellulle ruumiille, kuitenkin sanomattoman hyvää, sillä
siinäpä hän vähitellen kehittyi siksi vahvarintaiseksi
housunkantajaksi, mikä hän sittemmin aina on ollut. Ja varmaan se,
että hän näissä koipien ja käsien kiskomisissa joka päivä huuteli
enemmän kuin muut pojat, osaltaan yhä vahvisti hänen
äänijänteitään, niin että hän ylemmillä luokilla esiintyi jo tavallista
voimakkaampana konventtipuhujana. Priimuksena ei hän koskaan
istunut, sillä niitä on aina luokalla sellaisia, jotka kiusallisuuteen asti
jännittämällä ahkeruuttaan valtaavat tämän kunniatoimen, mutta
Posse ei vielä koulupoikana ollut mikään läksyjen panttaaja, vaikka
istuikin aina ihan likimpänä priimusta. Hänelle, kuten kaikille
luonnollisille lyseolaisille oli pääasia että nuot viisi ikävää tuntia
saataisiin niin pikaisesti kuin mahdollista, mutta kuitenkin onnellisesti
tapetuiksi, jotta sitten illalla päästiin suureen kelkkamäkeen
tyttökoulun "tipoja" hakkailemaan. Ei Possella ollut vakinaista
flammaa, vaan hän seurusteli sen kanssa, joka enin paistoi esiin
tyttöparvesta, mutta koskaan ei hänen tiedetä keneenkään
pikiintyneen, niinkuin muutamat jo koulupoikina ovat herkät
hellimmille tunteille. Läksyt ne olivat Posselle helpoin asia mailmassa,
niissä kun vaadittiin enemmän hyvää muistia kuin ajattelemista;
tarvitsi vain vähän vilkaista kotoa lähtiessään, ja kaikki luisti
liukkaasti kuin öljyllä voideltu, paitsi matematiikka, joka huolimatta
toverien avustuksesta silloin tällöin kiikasteli, niinkuin ylipäänsä
ihanteellisilla luonteilla, osaksi kai myös sentähden että siinä
aineessa tarvitsee itsenäisesti ajatella. Mutta Posse ei antanut sen
seikan vähän-vähääkään mieltänsä karvastella, hän oli ylpeä, ja
nautti täysin sieluin, koulupojan riemut loppuun asti. Kahdeksannella
luokalla, kirjoitusten jälkeen, ilmoitti hän eräänä päivänä tovereilleen
että oli "juhlallisesti polttanut Algebraansa kuten muinoin Luther
paavin bullan". Tällä teolla oli hän lausunut tulevaisuutensa
tunnussanan. Ei matematiikkaa, ei missään nimessä matematiikkaa
eikä luonnontieteitä hän tulisi yliopistossa lukemaan, vaan —
itämaisia kieliä. Toverit kuulivat tämän kummastuneina, heistä ei
kukaan edes selvästi tietänet, mitä itämaisilla kielillä käsitettiin,
persiaako, arabiaako vai mitä… — Mutta Posse puheli niistä
asiantuntijan varmuudella, ensi kertaa esiintyen ikäänkuin
etevämpänä muita. Tottapa hän, jolla veljet olivat viisaustiedeitten
vihkimiä, tiesi, mitä varten piti ruveta lukemaan itämaisia kieliä…

Niin matkusti hän muiden mukana Helsinkiin ylioppilastutkintoa

suorittamaan, ja saapas lakkasi nyt kiertelemästä toverien käsissä.
Veljet olivat vastassa pääkaupungin porteilla ja pitivät nuorimman
veikon valkolakki-kekkereissä liikuttavan kauniita tervehdyspuheita;
"Posse, sinä olet nyt ylioppilas!" huomauttivat he. "Sinä olet nyt
astunut yli elämän portin kynnyksen… tästä portista ovat kaikki
suuret miehemme astuneet sisään!…" — Hymm! rykäsi Posse ja
kohautti ylpeästi hartioitaan. Tässä juhlassa huomasivat toveritkin
vasta todenteolla, minkä puun vesoja heidän Possensa oli. Hänellä
oli kaikki edellytykset paisua joksikin… päteväksi henkilöksi.
Mahtavat sukulaiset, onnelliset raha-asiat, hyvä ryhti ja terveys,
kursailematon käytös, pirteä kaunopuheisuuden kyky, terävä
muistinlahja, esteetön ruotsinkielen taito — ja kaiken pohjana mitä
kirkkahin auktoriteetti-usko. Sellaisella nuorukaisella on aina ollut
mainio menestys ja loistava tulevaisuus.

Ensimmäinen ylioppilaskesä kului kiihkeissä unelmissa. Veljet

osasivat kutkutella kunnian kultaisimmasta kantapäästä. "Polykarpus,
näytä mailmalle että olet mies!"…

Syksyllä oli Posse ihan ensimmäisiä, jotka saapuivat yliopistoon

ilmoittautumaan luennoille. Hän pääsi asumaan mainion miehen
perheeseen, sellaisen, joka oli "suuri" ja kuitenkin vielä eli. Ja
kandidaattitutkinnon suoritteleminen lähti luistamaan kuin vettä
valaen.

Kaikki aineet olivat edeltäpäin tarkasti määrätyt, mikään epäröivä

valikoiminen ei tullut kysymykseen kuten niin monella muulla, jotka
poloiset akatemiian portaille astuessaan pysähtyvät elämänuraansa
hautomaan ja kuluttavat sentakia vuosikausia hukkaan. Possella oli
kiitollisia opastajia: likeisiä heimolaisia istuskeli ihan kateederin
korkeudessa ja muita professoreja voi hätätilassa voidella veljien
maineella ja ruotsinkielellä. Tarvitsi vain kohteliaasti kumartaen
mainita nimensä sekä rykäistä kaikuvasti — niin jo heti saivat asiat
hyvän alun, ja professorit auttelivat kilvan toivorikasta ylioppilasta
ylös laudaatturien korkeita portaita. Vähintään yksi laudaatturi —
vuodessa — ja kolmen vuoden perästä seppelöittiin Posse jo
oppineeksi viisaustieteen maisteriksi. Hän oli silloin tuskin 21 vuotias.
Hänen kandidaattikekkereissään, jotka maksoivat kolmesataa
markkaa, nähtiin dosentteja, teologian kandidaatteja, jopa
professoreitakin. Puheet, joita pidettiin läpi yön, olivat suurisanaiset.
"Minä luulen", lausui eräskin, "että nuori ystävämme Polykarpus,
joka tänään on suorittanut ensimmäisen korkeamman akateemisen
arvotutkintonsa, on niitä, joka tulee menemään elämässään sangen
pitkälle". Sanat "sangen pitkälle" jäivät kaikkien mieleen, syvimmin
kuitenkin itsensä illan sankarin. Ja kun hän hotellista kevätaamun
koitossa läksi palaamaan asuntoonsa, kantaen kainalossaan kestistä
säästynyttä sikaarilaatikkoa, ja eräs juhlasta huumautunut toveri
äkkiä huudahti keskellä esplanaadia: "katsokaas pojat Possea, hän
kantaa laatikkoa aivan kuin tohtori väitöskirjaansa!" niin tämäkin
leikkipuhe mieluisasti hiveli hänen hermojansa. Mutta seuraavana
päivänä tavatessaan toverinsa kuultiin hänen kertovan: "arvatkaas
mitä tein siitä juhlasta kotiintultuani aamulla? — joo, minä istahdin
lukemaan raamattua!" Tämän hän kertoi osoittaakseen, kuinka
runollisen ylevään mielentilaan hänen maisterikekkerinsä oli
loppunut. Osakunnassa oli hänet jo hyvin huomattu, joka
kokouksessa oli hän esiintynyt innokkaana keskustelijana,
isänmaallisten iltamain puuhaajana, kansanopisto-asiain pohtijana
j.n.e. Jos oli lähetystö lähetettävä jonkun mainion, ruotsiapuhuvan
vanhuksen luo kutsumaan tätä kunniavieraaksi johonkin
juhlatilaisuuteen, niin lähetystöön välttämättä valittiin Posse.
Riidoissa ruotsinmielisten kanssa osasi hän aina esiintyä
humaanisena välittäjänä suomenmielisten puolelta niin että hän sillä
tavalla voitti vastapuolueenkin suosion, puhellen aina heille kiltisti
kahdenkesken ruotsia, mutta julkisuudessa juhlallisesti suomea.
Pienessä suomenmielisessä piirissä saattoi hän olla hyvin
suutuksissaan ruotsikkoihin, vieläpä haukkua heitä "pässinpäiksikin".

Maisteriksi päästyä kävi osakunta hänelle liian ahtaaksi. Piti

välttämättä tulla huomatuksi koko ylioppilaskunnassa… Ja hän
antautui täydellä sielunsa voimalla sen asioihin. Siinä olikin paljon
puuhaa, laskemista, juoksemista ja huutamista. Jumalankiitos että
äänijänteet olivat valmiiksi vahvistetut ja kaunopuheliaisuuden kyky
varmalla pohjalla. Ennen pitkää olikin Posse jo hoitokomitean jäsen,
ja vielä muutama vuosi lisää hikisessä riehussa — ja hänkin alkoi jo
suhteellisessa äänestyksessä saada ääniä ylioppilaskunnan
johtomiesten toimiin. Kaikki ihmettelivät, kuinka maisteri Polykarppus
niin paljon kerkesi. (Hän oli ruvennut kirjoittamaan nimensä kahdella
p:llä veljen mukaan, joka kirjoitti kansallisen leveästi: Roopertti.) Hän
oli pedagoogi kolmessa eri koulussa ja kuitenkin hän ehti kaikkiin
osakunnan istunnoihin ja juhliin, kaikkiin ylioppilaskunnan sekä sen
hoitokomitean kokouksiin, Suomalaisen Seuran iltamiin sekä kaikkiin
surusaattoihin, kun joku erinomaisempi yhteiskunnan henkilö sattui
kuolemaan. Sitäpaitsi oli hän Y.L:läinen ja mukana sen
kukkaiskonserteissa, punssipyräyksissä, rekiretkillä ja kaikilla
serenaadeilla, jotka pidettiin jollekkin huomatulle naiselle tai jonkun
huomatun professorin huomiota-ansaitsevalle tyttärelle. Toveri-
elämään oli hän aina ottanut reippaasti osaa, mikäli se pysyi
traditsioonien rajoissa, eikä suinkaan harvoin istunut Kämpissä
höyryävä malja nenänsä alla, mutta ei koskaan häntä nähty
humalassa. Ajelipa hän toisinaan toverien seurassa sellaisiinkin
paikkoihin, joista ei päivänvalossa puhuta, mutta aina tuli hän sieltä
takaisin yhtä viattoman punaposkisena ja ylpeänä kuin oli
mennessäänkin. Hän vain tahtoi olla mukana näkemässä, miten
muut tekevät. "Se on terveellistä nähtävää" selitti hän sellaiselle
pelkurille, joka ei koskaan tuollaiseen paikkaan ollut hirvennyt.
Kämpissä hän joskus maljapuheiden lomassa saattoi siirtyä jonkun
toverinsa viereen, rykäistä arvokkaasti ja tiukasti katsoen silmiin
kysäistä: "mitenkäs se on, veli, sinun sielusi tilan laita? Luetkos sinä
koskaan raamattua?" Ja hän antoi isällisiä neuvoja yhtä-ikäisilleen
tovereille. Hän oli hyvä toveri ja aina aulis auttamaan toista
rahalainoilla, hänellä kun ei itsellään milloinkaan ollut rahapulaa.
Rahan vippaamisen mukaanhan näet toveri usein arvostellaankin
ylioppilaselämämme pyörteissä.

Opettajana kouluissa oli hän aivan mailman mainio. Sellainen

metallinkirkas ääni ja kukahteleva kaunopuhelu ei kaikunut turhaan
nuorten poikien ja neitosten korvissa. Kun lisäksi tuli alentuvainen
kohtelutapa sekä osanotto oppilasten konventti-elämään tai
hiihtoretkiin lupapäivinä, niin eipä ollut kummasteltavaa, että
semminkin tyttölapset ihan jumaloitsivat Polykarppus-maisteria. "Jalo
mies!" sanottiin suomalaisissa oppilaitoksissa. — "Hva' han är söt!"
kuiskuttelivat neitoset ruotsalaisissa kouluissa. Ja kun
Polykarppuksen-päivä tuli, toivat oppilaat lemmikilleen suuria
kukkaisseppeleitä, niin että nuori opettaja ihan oli liikutuksissaan. Ja
pelkästä hyvästä mielestä syötti hän silloin ensimäiselle
vastaantulevalle toverille, jonka kadulla tapasi, kilon marmelaadeja
— mieliherkkujansa.

Mutta korkeammalle, korkeammalle tähtäävät hänen pyrintönsä.

Siinä ei ole kyllin että jonakin kauniina päivänä hämmästyttää
pääkaupunkia jollakin uudella komealla tutkinnolla ja samana
päivänä julkaisee kihlauksensa jonkun pätevän miehen tyttären
kanssa — koulu on kuitenkin liian ahdas hänen-moiselleen ja
ylioppilaskunnan luottamustoimet eivät ajan pitkään nekään tyydytä,
Täytyy nousta sellaiselle viheriäiselle kummulle, että koko isänmaan
on pakko katsoa sinne ylös…

Hän on nyt noussut sellaiselle viheriäiselle kummulle! Entinen

pikku-Posse on nyt siinä määrin huomattu henkilö että koko maa sen
ytimissään tuntee. Kauvan sai hän ensin miettiä, minkä äänen
puhaltaisi torveensa, niin että se kajahtaisi kauvemmas akatemiian
seiniä. Lopulta hän sen huomasi. Kerran, jossakin puheessa, tuli hän
maininneeksi "sisällisen ja ulkonaisen terveydenhoidon merkityksestä
kansojen elämässä" sekä sai sitten lukea pääkaupungin lehdissä siitä
selonteon, jossa juhlallisesti seisoi: "— — Ja senjälkeen kosketteli
puhuja tuota yhteiskunnan suurta kysymystä…" Suuri kysymys?
todellakin! Sitäpä hän ei ennen ollut niin ajatellutkaan. Siinäpä asia,
josta sopii ruveta äänekkäämminkin huutamaan. Ja erinomaisen
kiitollinen ala. Ei yksikään mies koko maassa ennen ollut siitä
voimakkaammin saarnannut. Ja mistä syystä ei? Siitä syystä
varmaan että kaikki tunsivat itsensä tässä arassa kysymyksessä
epäpäteviksi, jokaisella oli jotakin rumaa ja rikkonaista
omallatunnollaan. Mutta hänpä ottaa sen elintehtäväkseen! Hän on
siihen kuin Jumalan lähettämä välikappale, sillä hänhän on
sielullisesti ja ruumiillisesti terve — (mitä pienistä lasten taudeista).
Hän on mallikuva muille ja soveltuu sentähden mainiosti moraalisen
hygienian apostoliksi. Ja hän rupesi vihellellen tutkimaan, mitä
ulkomailla tästä asiasta oli sanottu. Löysikin ihmeen paljon sopivaa
kirjallisuutta, rupesi refereeraamaan, suomentelemaan huomattujen
miesten teoksia — ja tuli itsekkin huomatuksi. Sitä tulee nimittäin
huomatuksi mieheksi sillä tavalla, että rupeaa huomauttelemaan
muista huomatuista miehistä, jotka ensin ovat huomauttaneet
jotakin huomattavaa kysymystä. Jos ei itsellä ole mitä antaa, niin
ottaa mitä muut ovat antaneet ja antaa sen. Se ei suinkaan ole synti,
vaikk'ei se ole mikään vahvakaan puoli ihmisessä. Meidän
sankarimme ainoa heikko puoli on aina ollutkin se, ettei hänellä ole
ollut mitään oikein omaa. Kaikki arvokkaat ajatukset, jotka noissa
kauneissa lauselmissa vilahtelivat, olivat haalitut kokoon tuolta ja
täältä mailman mainioilta henkilöiltä. Hän oli mestari niitä hyväkseen
käyttämään ja tuomaan ne esiin melkein ominaan, niin että harva
arvasikaan, mistä ne olivat lähtöisin. Eivätkä ainoastaan ajatukset,
vaan myös yksityiset sanat ja lausemuodot. Kaikki, mitä oli kauniin-
kilahtelevia sanoja Aatamista alkaen lausuttu auringon alla, tarttui
kuin rautanaulalla hänen päällänsä. Sieltä hän niitä sitten tarpeen
mukaan irroitteli varastoistansa. Hänen aivokoppansa on täynnä
sitaatteja suurilta miehiltä. Niitä hän nakkelee kuin kalamies täkyjä
järveen, yhden toisensa jälkeen: kas tuossa… ja tuossa… ja tuossa!
Ja kalat uivat syötiltä syötille ja tarttuvat koukkuihin. Näillä sitaateilla
hän puolusteleiksen kaikissa vaikeissa kysymyksissä. Jos häneltä
kahdenkesken kysyy esimerkiksi että, oliko Kristus hänen mielestään
Jumala vai ihminen, niin on hänellä heti suun täysi sitaatteja, joltakin
saksalaiselta teologiian professorilta, mutta mitä hän itse
sisimmässään ajattelee, siitä ei ikinä selkoa saa. Tai jos häneltä
tiedustaa, uskooko hän hebrealaista tarinaa mailman luomisesta,
sotkee hän vastauksen taas sitaateilla englantilaiselta Ruskinilta,
mutta mahdotonta on onkia hänen omaa mielipidettään. Hän on
varovainen näissä kysymyksissä. Vasta sitten kun hän on saanut
varmuuden siitä että jonkun pulmallisen kysymyksen ratkaisu niin tai
toisin on jonkun mahtavan, vallitsevan ihmisluokan järkähtämätön
mielipide, syöksee hänkin sen suustaan omana, kallionlujana
vakaumuksenaan. "Minulla on ollut paljon sisällisiä taisteluita!"
saattaa hän juhlallisesti rykäisten lausua, kun joku toveri leikillä
uskaltaa epäillä hänen vakaumustaan. Mutta sille, joka julkenee
arvostella jotakin selitystä, minkä suuri enemmistö antaa jostakin
uskonopin kohdasta, tokasee hän murhaavasti: "sinulla ei ole
sisällistä rehellisyyttä!" Toisella kertaa on hän taas vallan
suostuvaisella tuulella, tuontuostakin huudahdellen: "no juuri niinhän
minäkin ajattelen! ja juuri niinhän meidän kirkkommekin opettaa!"
vaikka ei hän lainkaan niin ajattele eikä kirkko sinnepäinkään niin
opeta. Mutta seuraa, jossa hän aavistaa olevan teräväjärkisiä
ihmisiä, hän karttaa, sillä hänellä on vaisto siitä, ettei hän siellä,
väittelyn syttyessä, ehkä suoriutuisikaan pelkillä sitaateilla, ja voisi
joutua, niinkuin sanotaan, pussiin. Ja se olisi hirmuista, jos
Polykarppus joskus joutuisi pussiin! Ei ole hyvä antautua taisteluun
avonaisella tanterella, parasta aina pysyä muurien turvissa…

Hän on kunnon mies, ja minä olen ensimmäinen tunnustamaan

että hän on kunnon mies. Mutta salaisimmassa itsessäni ajattelen
että jos kaikki olisivat samallaisia kunnon miehiä kuin ystävämme
Polykarppus, niin mailma olisi kuin helisevä vaski ja kilisevä
kulkunen. Vaan niitä täytyy olla sellaisia miehiä kuin hän, jotka niin
hauskasti myyskentelevät toisten poimimia hedelmiä mailman
turulla. Itsenäisyyttä etsivillä luonteillahan tosin pian saattaa tulla
ikävä ystävämme Polykarppuksen seurassa, mutta suurille laumoille
on hän aina oleva kaikkien kauniiden ajatusten herätyskellona.

Hän on nyt meidän suurin terveydenhoidon-holhoojamme, meidän

innokkain raittiusriehakoitsijamme, meidän suloisin
sunnuntailääkärimme — ja ratkaisee elämän vaikeimmat asiat
erinomaisen helposti. Hän uskoo että kaikki kyllä voivat elää yhtä
terveesti, yhtä raittiisti, kauniisti, vieläpä yhtä siveästikkin kuin hän,
jos vain — kuinka sanoisimme — ovat täydelliset.

On olemassa siveyttä, joka on saatu taistelemalla; on olemassa

siveyttä, joka on saatu lankeamalla; mutta on myös sellainen laji
siveyttä, joka on saatu ilman erityistä kärsimystä ja ilman tarvetta
ensin hukkua.

On miehiä, jotka pysyvät koskemattomina naisiin — ei siveellisen

ihanteen perustuksella, vaan sentähden että se on heille helpoin
tapa loistaa muiden yli. Tällaisten miekkoisten täytyy tietysti olla
erityisen terveitä ruumiiltaan, mutta vähemmin kehittyneitä tunne-
elämältään, niin että aina jäävät jääkylmiksi kiusauksille. Minä luulen
että tällaisia miehiä on peräti vähän, ehkä yksi sadastatuhannesta —
ja sellainen juuri on sankarimme Polykarppus. Hänen siveytensä on
kuin päärly, joka löydetään maasta niin puhtaana ettei sitä tarvitse
ensinkään puhdistaa heti nähdäkseen, kuinka kirkas se on — se on
kuin kuninkaan kruunusta suoraan singahtanut kuivalle, hiekoitetulle
paraatikäytävälle…

Niin. Tohtori Polykarppus on kyllin huomattu mies ja jonakin

päivänä tulee hänestä vielä meidän arkkipiispamme. Jos kohtalo olisi
sallinut hänen syntyä roomalaiskatoolisen kirkon helmoissa, niin tulisi
hänestä ihan varmasti kardinaali ja sitten ihan varmasti itse paavi,
Pius viidennentoista nimellä. Mutta sallimus antoi hänen syntyä
vaatimattoman luteerilaisen kirkon helmoissa ja sentähden hänen
maallinen kunniansa ei voi kohota mainittua asemaa korkeammalle.
 *** END OF THE PROJECT GUTENBERG EBOOK NUOREN MIEHEN
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