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Kashif, Rumesha --- "Murders With Missing Bodies: Evidential Construction of Prosecutorial No-Body Murder Cases" [2022] CanLawRw 9; (2022) 19(1) Canberra Law Review 149


Murders With Missing Bodies: Evidential Construction of Prosecutorial No-Body Murder Cases

Rumesha Kashif*

To prevent human rights violations, the State has an obligation, one that may not be legally recognised, to provide victims of crime and their families with justice, and consequently, the truth. Therefore, in cases of unlawful deaths, or homicides, the State must make the necessary efforts to locate the victims and perpetrators of the offence. This can become increasingly difficult in the absence of the victim’s body or any forensic evidence indicative of death, also referred to as no-body murders. However, though rare, convictions for no-body murders have been tried and successfully prosecuted in Australia. It follows, that as investigators and prosecutors continue to bring such cases forward, and jurors gain more confidence in deciding such matters, the courts could see a rise in no-body murder prosecutions, by which, research in this area is of current relevance. Research in the area remains scarce and limited to the history of the offence and covers international jurisdictions. This article examines the factors contributing to and impeding the successful prosecutions of no-body homicides in Australia. In pursuit of this, the article analyses two successful and one unsuccessful no-body murder prosecution, whilst also providing an interdisciplinary perspective on the relationship between factfinders and evidence. It argues that disparate pieces of evidence related to victimology, which establishes the death, rather than missingness, of a person, and circumstantial evidence, which establishes the unlawful circumstances of death, are given meaning through a narrative structure or case theory to prosecute no-body homicides.

I INTRODUCTION

The fact that a murderer may successfully dispose of the body of the victim does not entitle him to an acquittal. That is one form of success for which society has no reward.

People v Manson[1]

Homicide refers to the unlawful death of a human being by the actions or omissions of another.[2] This general offence is then divided into two categories: murder and manslaughter.[3] An aversion to causing harm is, to some degree, inherent to the human condition.[4] Accordingly, causing the wrongful death, or murder, of a human being, is considered the most deplorable of acts.[5] Therefore, offenders, though successful in the disposal of their murdered victims, should not go unpunished. However, establishing the guilt of an accused becomes necessarily challenging in the absence of the victim’s body.[6]

Often, the physical element of a homicide will be established by the body or remains of a dead person. Without the body, or any such forensic evidence, definitively establishing the death of a person is difficult. These types of murder are commonly referred to as no-body murders.[7] Murder investigations differ from those focused on missing persons. Without a body it is difficult to determine what process is required.[8] This investigative hinderance results in a low clearance rate for such crimes. [9]

The body is also, arguably, the most expressive piece of evidence in a homicide case.[10] The old adage ‘dead men tell no tales’[11] does not necessarily hold true for homicide cases. First, the manner and chronology, in particular cause and time of death, of a crime can be pieced together through analysis of the body and its disposal site.[12] Second, scenes of violent crimes, in most cases, provide invaluable forensic information.[13] This most noticeably includes genetic material, in particular from blood, semen, sweat, and urine.[14] This evidence is most cogent to identifying the perpetrator, but can also aid in understanding the criminal event through a reconstruction of it.[15] Often, the absence of a body also means an absence of an investigable crime scene.[16] Therefore, the absence of a body undoubtedly causes a deficiency in available evidence.[17]

Despite the difficulties, prosecuting no-body murders is important by virtue of the social good[18] it serves.[19] In particular, the area of no-body murder investigations, and in turn prosecutions, are most relevant to the issue of missing people. The doubt between whether a person is missing or murdered will often lead to delayed and misguided investigative efforts.[20] Due to this, the estimated number of no-body homicides, which are still considered missing persons, cannot accurately be deduced, and the number may be far greater than expected.[21] However, victims of crimes have a right to justice and they, and their family, have a right to the truth.[22] This is not a legally recognised obligation, but this duty must be undertaken by the State to prevent human rights violations.[23] In pursuit of this right, it is necessary that efforts are made to either find the victim or identify the perpetrator of their death.[24]

A Aim and Relevance

No-body murder prosecutions are rare.[25] However, interest in no-body murders is becoming more widespread, a fact that can be inferred from the continued media interest[26] and legislative developments in the area.[27] As the public, and in turn jurors, become more comfortable with the idea of convicting offenders for no-body murders, so too will prosecutors[28] and investigators when it comes to bringing these cases forward.[29] It reasonably follows, that this could lead to a rise in prosecution of no-body murders.[30] Therefore, research regarding this area is of current relevance, especially to practitioners in the legal sector.

Research in the area of no-body murders is scarce.[31] Current literature in this area is anecdotal in nature, focused on the history of the offence, and limited to larger jurisdictions, in particular, the United Kingdom and United States.[32] At present, there is no research regarding the issue of no-body murders from the Australian legal perspective.[33] The purpose of this article is to address that gap.

It explores the elements required for the prosecution of no-body murders. It seeks to identify and analyse, the factors required for the success of no-body murder prosecutorial cases, as well as those impeding them. To achieve this, the following research questions will be explored. First, how is a person established as being deceased. Second, what evidential factors underpin no-body murder cases. Third, how are these disparate pieces of evidence used, in particular in a case theory or narrative, to successfully prosecute an offender for a no-body murder.

B Approach

This article is predominantly comprised of doctrinal research, with an aim to synthesise the principals, norms, and rules guiding the prosecution of no-body murder cases in Australia.[34] Through the integration of social science research, it uses an interdisciplinary perspective to explore the research questions, in particular the relationships between factfinders and evidence.[35]

The following cases of no-body murder prosecutions will be examined. They will be referred to as the Lane case,[36] the Burrell case,[37] and the Edwards case.[38] The aggregate of the various hearings and judgements related to each matter will form the body of the cases. The former two resulted in successful prosecutions, whilst the latter failed due to an absence of substantial evidence establishing the guilt of the accused. These cases have been selected due to their recency and absence of substantial direct evidence, in particular forensic material.

In the current study, the cases of successful no-body murder prosecutions will be compared[39] to that of an unsuccessful one. Comparison with this case will provide a wider view of the factors that affect, specifically those that aid and impede, the prosecution of no-body murders. This will better place the article to discern the strengths and weaknesses, and future applicability, of the legal concepts, doctrines, and practices that underpin the prosecution of the offence.[40]

The research will be jurisdictionally limited to Australia.[41] There is no restriction on the forms of evidence being used to establish no-body murders. However, owing to constraints on the length of the article, the current research will only be analysing a few, rather than all, categories of evidence used in the cases. These categories of evidence have been selected due to the high frequency in which they appear in the cases.

This article proceeds in four parts. Part II is descriptive in nature and provides the background knowledge necessary to understand the subsequent Parts. This includes a brief discussion on the legal framework governing criminal law, and in particular the offence of murder. In line with the jurisdictions of the cases to be examined, the laws concerning murder as they stand in New South Wales (‘NSW’) and Western Australia (‘WA) will be outlined. Following this, the material facts of each case will be provided, as well as a brief discussion on the topic of jury and judge alone trials. Part III will explore the use of victimology in no-body murder cases. This includes an exploration of the use of victim characteristics, such as age, social designation, and behaviour, to establish the death, as opposed to disappearance, of a person. Part IV will examine the various types of circumstantial evidence used by prosecutors in no-body murder cases. This includes circumstances related to the criminal event, evidence of motive, and propensity evidence. Part V will explore the construction of case theories and legal narratives, and their impact on the success of no-body murder prosecutorial cases.

II BACKGROUND

A Murder and the Law in Australia

In Australia there is no national or uniform legal framework governing criminal law.[42] This is attributable to the limited powers vested in the Commonwealth by the Constitution[43] regarding such matters. Through these powers the Parliament effectuates laws for any subject matter in the Constitutions ambit.[44] For example, the Criminal Code 1995 (Cth) (‘Criminal Code 1995’),[45] which codifies the standard principles of criminal responsibility,[46] finds its constitutional basis in s 51(xxxix).[47] Instead, criminal offences are governed by State and Territory laws by virtue of their plenary powers.

In NSW, the laws concerning homicide[48] are set out in div 1 of the Crimes Act 1900 (NSW) (Crimes Act’).[49] In essence, murder, as defined under s 18(1)(a), is the causing of death to another through an act, or omission, of the accused, which was committed with reckless indifference to human life, or with the intent to kill or inflict grievous bodily harm[50] upon some person. This also includes the causing of death done in an attempt, or during or immediately after the commission by the accused of a separate crime punishable by imprisonment for life or for 25 years.[51] Manslaughter is defined as every other punishable homicide.[52]

In WA, ch XXVIII of the Criminal Code Act Compilation Act 1913 (WA) (‘Criminal Code Act’)[53] sets out the offences related to homicide. Under s 268, the killing of a person, without justifiable reason, is unlawful. Similar to the Crimes Act,[54] murder, as defined in s 279, is the unlawful killing by a person who intended to cause the death of the person killed or another person, or intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person, or caused the death, by an act that would likely endanger human life, during the pursuit of an illegal purpose.[55]

In general, the offence of murder in the two jurisdictions are relatively similar. Broadly speaking, the charge of murder, in both jurisdictions requires the establishment of two elements: the physical element (actus reus) and the fault element (mens rea).[56]

The first is the physical element. The physical element encapsulates the outer, behavioural, objective and public aspect of the criminal conduct. [57] Within this also exist two categories, resulting crimes and conduct crimes. The former is dependent on conduct leading to a certain prohibited result, whilst the latter is concerned with the prohibited conduct independent of any result.[58] The physical element of murder, and homicide in general, is conduct resulting in the death of a human being.

The second is the fault element. The fault element of a crime is the subjective and mental state, as well as the private aspect, of the conduct.[59] The fault elements considered by the criminal law are much narrower than those used for everyday moral judgements.[60] Traditionally, the law has, for several crimes, looked to mental states that are malicious, wilful, and and/or wanton.[61] The contemporary laws governing criminal conduct, including murder, have condensed these into concepts of intent, recklessness and knowledge.[62]

For many statutory crimes, such as murder, the physical element must be accompanied by the requisite fault element. This accounts for the relationship between mind and body, as expressed by Rene Déscartes, ‘I think, therefore I am’.[63] It also aligns with Lord Kenyon’s idea about natural justice, in which the physical and fault element must concur to constitute a crime.[64] The establishment of these elements is also a statutory requirement under Federal law. By virtue of the Criminal Code 1995,[65] the fault elements and physical elements, as required by the laws creating the offence, must be established to constitute the offence.[66] Due to the substantial punishments[67] and stigma associated with a murder conviction, it is paramount that the label only be applied to those guilty of the offence.[68] For this reason, the prosecution is required to prove each element, beyond reasonable doubt, relevant to the guilt of the person charged.[69] This task, and in particular the establishment of the physical element, becomes increasingly difficult in the absence of the victims body. Therefore, the prosecution must rely on other forms of evidence to establish the death of a person.

B Material Facts

The following is a brief outline of the three cases to be examined in this article: Lane, Burrell, and Edwards.

1 Lane[70]

This case concerns the death of Tegan Lane (‘Tegan’).[71]

In December 1995 Keli Lane (‘Lane’) became pregnant at the age of 20. Prior to this, Lane had been pregnant three different times. The first two pregnancies, and their terminations, were concealed from friends and family. Then, at, the age of 18, Lane once again became pregnant. This pregnancy was carried to term in secrecy. Lane assumed the father of this child to be Duncan Gillies (‘Gillies’), her then significant other. Her first child, born 19 March 1995 unbeknownst to Gillies, was placed for adoption.

In December 1995, Lane, still in a relationship with Gillies, became pregnant once again. This pregnancy was also carried to term in secret. During this time, Lane did not attempt to terminate the pregnancy, nor did she seek any medical care. On 12 September 1996, at Auburn Hospital, Sydney, Lane gave birth to Tegan. Two days later, Lane and Tegan, who both appeared healthy and happy, were discharged. Tegan has not been heard of or seen since.

Following this pattern, Lane became pregnant and gave birth to another child in May 1999. This pregnancy, as well as the birth of the child, was concealed from the child’s father and her family. Soon after the birth, Lane commenced proceedings to have the child adopted. Lane falsely claimed Gillies as being the father of this child. This led to an investigation by a child services worker, who uncovered the birth of Tegan, and the matter of the missing child was referred to the police.

Lane claims Tegan to be alive and in the care of the child’s biological father. The Crown alleged the child to have been murdered by Lane soon after her birth. On the afternoon of 13 December 2010, a jury of twelve found Lane guilty of murdering Tegan.

2 Burrell[72]

This case concerns the death of Kerry Whelan (‘Whelan’).

On the morning of 6 May 1997, Mr Bernie Whelan (‘Bernie’)[73] was informed by his wife of an appointment to see a beautician she had later that day. The couple was to meet at Crown Equipment around 3:45pm that day to depart for Adelaide together.

Around 9:40am that day, Whelan was seen in the Parkroyal Hotel parking. She was then seen, as captured by the hotel’s security camera, walking up a ramp to exit the car park. Of interest was a Pajero 4WD seen driving around the hotel from 9:01am. Approximately, 45 seconds after Whelan’s exit from the car park, this Pajero was seen driving away. Whelan, who, from 1:30pm, could not be reached by phone, did not make it to Crown Equipment as promised. Worried, Bernie arrived at Parkroyal Hotel looking for his wife, only to find her car with the keys still in the ignition.

The following day, a ransom note was received by Bernie. The note detailed the steps to be taken regarding the ransom amount of $US 1 million.

The Crown argued that Whelan was kidnapped and killed by Burrell, a friend of the family and former colleague of Bernie, for financial gain. Burrell argued that he could not have committed the offence due to his ailed physical state at the time. According to him, the Crown has no, or insufficient, evidence, linking him to the offence. On 6 June 2006, Burrell was found guilty of the kidnapping and murder of Kerry Whelan by a unanimous verdict.

3 Edwards[74]

The no-body victim of this case is Sarah Spiers (‘Spiers’).

In the span of 15-months, three women disappeared from or around the Claremont entertainment precinct in Perth. Jane Rimmer (‘Rimmer’) and Ciara Glennon (‘Glennon’) were confirmed to have been murdered after the discovery of their bodies. However, the location or body of Spiers, who was 18 at the time of her disappearance, has not yet been uncovered.

On the evening of 26 January 1996 Spiers, with her friends, visited the Claremont area. She remained at the Ocean Beach Hotel until midnight, after which the group moved onto another location, Club Bayview. Spiers, departing alone, telephoned for a taxi at a nearby telephone box. After this, she was seen by three eyewitnesses waiting on the side of the road. Sometime between 2:06am the next morning, when she made a telephone call for a taxi, and 2:15am Spiers disappeared without a trace.

On 22 December 2016, Robert Bradley Edwards (‘Edwards’) was arrested for the deaths of Rimmer and Glennon. Edwards, who at the time of the offences was a Telstra telephone technician, was linked to the murders through forensic evidence. The Crown posited that, like Rimmer and Glennon, Spiers was also murdered by Edwards. Edwards agreed that Spiers must be dead, but firmly denied any involvement.

On 24 September 2020, Justice Hall found Edwards guilty of the murders of Rimmer and Glennon, but not guilty for that of Spiers.

C Decisionmakers: Judge vs Jury

It is instructive to note that the cases with successful prosecutions, Lane and Burrell, were decided by a jury, whilst Edwards, the unsuccessful no-body prosecution, was decide in a judge alone trial. Both decision making bodies will be explored in turn.

Research indicates several benefits to trial by juries. The jury, which is selected at random from the electoral roll, is seen to embody the interests and experiences of the public.[75] Following this, the jury serves as a representation of the community in an attempt to eliminate discriminatory treatment of defendants.[76] The jury is also perceived as an independent decision-making body, separate from the State, and therefore essential to a fair trial.[77]

However, in some cases, defendants will be tried before a judge. Unlike judges, jurors have no obligation to provide reasoning for their verdicts.[78] There is a sense of uncertainty in the ability of jurors to make decision based on the evidence and facts alone.[79] The jury are also considered incompetent in matters involving technical evidence.[80] In this regard, a judgement from a judge, which requires adherence to the law and coherent reasoning, is deemed more reliable.[81] Cases with significant media attention are also, arguably, best tried by a judge. Media attention can lead to prejudicial publication which can unfairly influence jurors.[82] This risk is reduced by opting for a judge alone trial.[83] Through State legislation a defendant may, under certain conditions, apply for a judge alone trial.[84]

Research shows that both jurors and judges are able decisionmakers.[85] Further, the differences in decisions between the two are not indicative of who is more or less accurate.[86] However, it would be remiss not to acknowledge the possibility of the different trial types affecting the outcome of the cases. This topic, however, is beyond the scope of this article.

When referring to the judge and jury as a collective, the subsequent Parts will refer to them as ‘factfinders’ or ‘decisionmakers’.

III VICTIMOLOGY AND ESTABLISHING DEATH

The starting point of any homicide is the death of a human being. Ordinarily, this can be established through the deceased body of that person. However, under certain conditions, the severed parts of a body[87] and forensic evidence could also lend towards an inference of death.[88] Therefore, in the absence of a body, and any forensic evidence related to it, proving the death of a person becomes increasingly difficult.[89] As a case in point, the defendant in Lane recurringly challenged the notion that Tegan’s death could be conclusively proven, reminding the court that the victim could be alive, therefore negating the prosecutions entire argument.[90] This Part will explore the use of victimology, which is the study of victims of crime,[91] in positioning the victim as being dead, as opposed to missing.

A Background

The need to conclusively determine the death of a person in the absence of a body also carries historic significance. The ‘no body, no murder’ rule finds it roots in 17th century English law.[92] Lord Hale is credited for the origin of this doctrine, under which a person should not be convicted for homicide in the absence of the victim’s body or evidence establishing death.[93] The underlying basis of this principle was to prevent the punishment of a person for a non-existent crime. This was in line with Blackstone’s ratio,[94] who proposed the need for a higher degree of certainty when rendering someone guilty, even if the likelihood of error increased, so as to avoid punishing the wrong person.[95] Though Hales principle has eroded over time, Blackstone’s ratio, in some form, still exists in Western jurisdictions.[96] For this reason, the current judicial system requires the death of the victim to be proved beyond any reasonable doubt.[97]

People go missing every day.[98] Some are forced, whilst others disappear voluntarily.[99] To disappear intentionally is not a crime.[100] Therefore, at the commencement of such issues, the investigating authority is required to establish the circumstances of the disappearance in order to decide the concern to be attributed to the individual and their welfare.[101] Certain characteristics and behaviours are used to distinguish, even tentatively, between voluntary and involuntary disappearances.[102] Similarly, the court must determine if, in the absence of a body, the victim has died, or if there is an alternative theory for their disappearance. In this situation, the prosecutor will often turn to the characteristics of the victim, and their behaviour after their disappearance, to evidence their death.[103] However, the factors affecting the disappearance of children, will in some respect, always differ to those affecting adults.[104] Both categories of victims will be examined in turn.

B Missing Victims: Adults

1 Victimology

Often, an intentional disappearance can be triggered by moments of extreme emotional distress.[105] Those facing trauma will generally experience interpersonal conflict, usually brought on by feelings of panic and guilt.[106] In response, people will try to distance themselves from the trauma and/or crisis by physically removing their presence.[107] This can be a temporary disappearance to dissipate their emotional instability, or it can be a permanent change.[108] Most commonly, voluntary disappearances are brought on by financial problems, and relationship, marital, and familial issues and breakdowns.[109]

Certain people are also more likely to disappear, or be reported missing, than others. For this reason, when someone from the latter category does go missing, their disappearance is, more often than not, considered involuntary. This will be evidenced with the subsequent discussion.

One such group includes those that are systemically marginalised.[110] Traditionally, someone is missing when they are physically absent.[111] However, according to Stewart,[112] a person is missing when their absence is felt by those concerned about their welfare and whereabouts.[113] For this reason, those facing social exclusion[114] can be missing for some time before their absence is even noticed.[115] This then leads to delayed, and in some cases effortless, investigations into their disappearance.[116] This is based on the misconception that these individuals have disappeared voluntarily.[117] For this reason, those facing social exclusion are usually overrepresented amongst missing people.[118] Factors affecting this social exclusion can also be linked to the persons circumstances of disappearance.[119] This demographic comprises of those who are socially and economically disadvantaged.[120] This commonly includes homeless people, unemployed people, victims of domestic violence, and, in places like Australia and Canada, Indigenous people.[121]

Another group more likely to be assumed as intentionally missing include those with transient lifestyles. Stewart argues that people without social ties can be considered as missing due to their geographical presence.[122] This includes their absence being felt by those accustomed to seeing them in a single or set of locations.[123] However, those from a transient population are less likely to have social designations, and in turn, less likely to be missed.[124] This demographic generally includes homeless people, runaways, hustlers, and prostitutes.[125]

Beyond this, modern technology has made locating a missing person considerably easier. As an example, Thomas DiBiase[126] takes the ability of serial killers who could, in the past, construct and maintain lies regarding the whereabouts of their victims.[127] This was, he attributed, to the lack of instantaneous communication devices. Modern day developments have made it so everyone leaves an electronic trail, especially if they disappear.[128] Therefore, in the absence of physical evidence, evidence showing lack of life, such as no electronic activity, can also establish death.

2 Case Analysis

Victimology was used in both the Burrell and Edwards case to successfully evidence the death, as opposed to disappearance, of the adult victims.

In the case of Burrell, the victim was Whelan. The court’s illustration of Whelan and her life make it clear that she was unlikely to have voluntarily disappeared.[129] Whelan was described as having close familial relationships.[130] This is evident from the statement regarding her and her husband, who were ‘a devoted couple and ... equally devoted to their three children’.[131] Beyond this, Whelan had made plans with her husband regarding the future, in particular, a prospective overseas vacation.[132] There was no evidence that Whelan suffered any emotional trauma prior to her disappearance, nor was she in any financial distress. The court held that, due to Whelan’s social designations and responsibilities, such as her children, it was improbable her disappearance was voluntary.[133] Further, there was no plausible reason for a voluntary disappearance.[134]

Evidence regarding Whelan’s activities prior to, and after, her disappearance was also used in the trial. This included no contact by Whelan with any family or friends, her bank accounts not being accessed by her, no immigration records evidencing departure from the country, and no Medicare[135] records evidencing any medical attention sought.[136] In its totality these factors evidenced a lack of life. This, in conjunction with her victimology, allowed the court to declare Whelan as having died rather than disappearing.

In the case of Edwards, the no-body victim was Spiers. The notion that Spiers had voluntarily disappeared was, similar to Whelan, illustrated to be out of character for her person. Spiers was ‘from a loving family’, working as a secretary, and had made plans for the future.[137] The court found no reasons for Spiers to have willingly disappeared. The Crown used evidence from those in acquaintance with Spiers to preclude theories of her voluntarily disappearing or taking her own life.[138] The Crown used the evidence of Christine Ham[139] to eliminate suggestions of Spiers experiencing an emotional crisis prior to her disappearance.[140] This was reinforced by Amanda Spiers,[141] whose evidence was led to establish Spiers’ out of character behaviour in not informing her family about her whereabouts.[142]

Similar to Whelan, Spiers’ lack of life was evidenced from her non-existent electronic activity. This included no contact with family or friends, no access to bank accounts or medical services, and no departure from the country.[143] In light of this evidence the court found Spiers to be dead as there was ‘no other satisfactory explanation for her disappearance.’[144]

C Missing Victims: Children

1 Victimology

The major issue facing children is the actual knowledge of their disappearance. In many cases, such as child abduction situations, the family, friends, and police, will be unaware the child is even missing.[145] For illustration, in Lane, Tegan had been missing for around three years before anyone questioned her whereabouts. This was due predominantly to Lane’s concealment of the child’s existence from family and friends.

Children, in contrast to adults, are more likely to face victimisation.[146] This condition owes to several factors. First, the physical stature of a child will often impact their level of risk. Younger children, who will generally be physically weak and small, will be dependent on others for their protection and care.[147] For this reason, they are unable to retaliate or deter those intending to harm them. Children of a higher age, such as those aged between 15 and 17, are less prone to victimisation due to their physical ability to protect themselves.[148] Second, children are at greater risk of victimisation due to their early stage of development.[149] The younger the child, the greater their social and psychological immaturity.[150] In turn, children develop a dependency on adults to supplement their immaturity. Third, children have little to no choice in who they associate with or their circumstances.[151] Other segments of the population, such as women experiencing domestic violence, also face this issue. However, these vulnerabilities can sometimes be overcome through an assertion of autonomy by these people. Children, due to their dependency, are unable to do this.[152] Therefore, it stands that as a child ages their development increases, which leads to a decrease in their dependency, which then leads to a decreased risk of victimisation.[153]

2 Case Analysis

Following this path, it can be argued that a child, that is no more than two days old, would be dependent on their parent or guardian. This was the case with Tegan who disappeared two days after her birth. The court in Lane makes note of the child being ‘completely defenceless’ and being dependant on her mother for ‘protection, sustenance and care’.[154] During the investigation, the search conducted for the child was ‘painstaking, meticulous and exhaustive’[155] as she could not have voluntarily gone missing. This point was accepted by Simpson and Adamson JJ, and Bathurst CJ, who noted that Tegan was either in the care of some other person, as argued by Lane, or dead, as put by the Crown.[156] The investigation yielded no child who could have been Tegan, or any person who Tegan may be in the care of.[157] Therefore, by evidential elimination of the first alternative, it was concluded that Tegan was dead.

IV CIRCUMSTANTIAL EVIDENCE

Evidence can be categorised in two ways.[158] The first is used to directly prove a fact, aptly named ‘direct evidence’.[159] This includes eyewitness identifications and testimonies, confessions, and, in murder cases, the body of the victim.[160] The second is indirect evidence, referred to as, in legal parlance, ‘circumstantial evidence’.[161] Circumstantial evidence is evidence from which the existence of a fact may be inferred.[162] This form of evidence is an accepted form of proof even though it does not explicitly exist in statute.[163]

The absence of a body in a murder case often results in an absence of direct evidence. This article argues that prosecutorial cases of no-body murders rely substantially, if not wholly, on circumstantial evidence. In the outset of this Part the reasoning processes, legal application, and issues, surrounding this form of evidence will be, for contextual purposes, explored.

The topic of circumstantial evidence has long been an area of contention. The process of inferential reasoning is interpretative, and therefore imperfect.[164] For this reason, critics argue that circumstantial evidence is inherently less accurate and has, historically, led to miscarriages of justice.[165] Cossins[166] posits that inferential reasoning involves heuristic processing.[167] Heuristic processing is a thought process characterised by ‘fast, intuitive judgements’.[168] This process is plagued by flaws as it involves a modicum of cognitive effort, specifically, regarding the assessment of evidence.[169] This is caused by the use of heuristic cues, which are generalisations about human behaviour.[170] It is also suggested that people have an inherent ‘proneness’ to construct theories and distort evidence to establish guilt.[171] Curiously, empirical research indicates that factfinders are less likely to impose guilt based on indirect, as opposed to direct, evidence.[172] This can be owed to the abstract and general nature of such evidence, the inability of jurors to understand the evidence, and avoidance of personal responsibility, which is much greater when convicting on circumstantial evidence.[173]

As an area embroiled in conflicting opinions, the use of circumstantial evidence, in the face of statutory silence, has been guided by common law. The principles regarding the evidence are as follows.

Circumstantial evidence is evidence from which inferences about the facts in issue can be drawn.[174] A fact in issue in a criminal matter are ‘those that establish the elements of the offence’.[175] An inference is a deduction or conclusion drawn from established evidence or circumstances.[176] This inference must be more than a guess or mere speculation.[177] This reasonable inference need not depend on the assessment of each circumstance in isolation. A combination of facts, or the evidence as a whole, may be used to draw an inference.[178] This inference, establishing the guilt of the accused, must also be the only reasonable one that can be drawn.[179] Following this, if any reasonable[180] hypotheses, or even a possibility of one, consistent with innocence can be inferred, the benefit of the doubt should be given to the accused.[181] This is because, an inference consistent with innocence raises reasonable doubt about the guilt of the accused.[182] Therefore, this requirement is merely an expectation of the prosecutor’s burden of proof,[183] under which guilt needs to be established beyond a reasonable doubt.[184] This rule is especially pertinent to prosecutorial cases based substantially on circumstantial evidence.[185] Therefore, the only reasonable inferences available from circumstantial evidence in a no-body murder must be that the victim is dead and was killed by the accused.[186]

The focal cases of this article explicitly note the substantial reliance on circumstantial evidence by the Crown.[187] Various forms of circumstantial evidence exist, and some can be found throughout these cases. The substantial stock of them will be considered in turn.

A General Circumstances of the Crime

This general category encompasses the circumstances, such as actions and physical material, surrounding the offence.

There were several circumstantial items in the Burrell case.[188] However, there were ‘three prominent factual circumstances upon which the Crown relied’.[189]

The first will be referred to as the ‘Pajero evidence’. On 6 May 1997 the image of a Pajero 4WD motor vehicle was captured by security cameras parked outside the Parkroyal Hotel. Whelan was seen exiting the hotel’s parking up a ramp. Soon after, the Pajero was seen driving away from the hotel. From there her image disappeared. Whelan was not observed, by the other cameras, on any pathways she could have taken at her exit. The Pajero had features similar to one owned by the accused. The inference here is that Whelan, at the time of her disappearance, left the vicinity in the vehicle of the accused. An investigation of Pajero owners and drivers in the area, as well as the condition of the windscreen of the accused,[190] was used to eliminate the hypothesis of a different Pajero.

The second item of circumstantial evidence was referred to as the ‘dot point notes’. Two notepads were seized from the accused’s premises. Of interest were two notes in his handwriting and in dot point formation. There was no direct evidence as to the meaning of these notes. It was concluded, by the Crown, that the notes contained short-hand instructions guiding the kidnapping of Whelan. This was supported by the similarities between the notes and the ransom letter.

The third item of evidence will be referred to as the ‘Goulburn call’ evidence. On 23 May 1997 a call was made, from a public phone in Goulburn, to Crown Equipment by the kidnapper. It was deduced that the person was the kidnapper as they relayed knowledge consistent with the ransom note. The contents of the note, at the time, were only known by those immediately present when it was received. On the same day, the accused admitted to being in the Goulburn area and making two phone calls from a public phone. From this, the Crown deduced that it was the accused who made the call and was therefore the kidnapper. The possibility the accused made a different phone call was eliminated by investigation of his calls to the claimed people.[191] Burrell argued that the phone call he made was to his solicitor’s office. However, after analysis of the records kept by the solicitor’s office, it was deduced, by the Crown, that the phone call was made from a different phone booth and a different time to the one made by the kidnapper. Though a call to the solicitor was proven to be made earlier in the day, it could not be used as a reasonable hypothesis as to the innocence of the accused making the phone call to Crown equipment later in the day.[192]

A more minor circumstance relied upon was the accused’s future financial plans. The inference from this evidence regarded the kidnapping and ransom of Whelan, and in turn, the accused’s involvement in her death. Burrell had asked a female friend to marry him and move to Tasmania with him. He claimed to be looking for a property to buy in the area. He had also made enquiries regarding the purchase of property, from the project manager of Tasmania Development and Resources, for the purpose of setting up a winery. Then, during a property search, police discovered a note, written by the accused, detailing planned improvements, totalling $62,000. Both these instances can innocently be explained. However, in light of the accused’s precarious financial state at the time, the Crown argued that such plans were ‘consistent with an expectation of a sudden and significant improvement in his financial situation’.[193]

The Lane case, to a lesser extent, also contained evidence related to the circumstances of the crime.[194] Most significantly, the Crown case was that Lane had the opportunity to commit the murder. Lane left the hospital at around 12:00pm on 14 September 1996. Tegan was with her. She arrived at her parents’ house at 3:00 pm the same day. Tegan was not with her. The intervening three hours are unaccounted for. The Crown contends that it was this period in which Lane killed, and disposed of, the child. There was no evidence indicating the child had been given to another person.

Further, evidence regarding Lane’s preparation and arrangements, or lack thereof, for the birth and care of Tegan was also used. The Crown alleged that this absence of preparation gave rise to the inference that Lane did not ever intend to bring the child home. Therefore, she left the hospital intending to dispose of Tegan.

In addition, the Crown used the body of lies told by Lane to infer a consciousness of guilt on her part. Lies evidencing a consciousness of guilt is an accepted form of evidence in Australia.[195] The relevant legal principles pertaining to them is set out in Edwards v The Queen (‘Edwards v The Queen’).[196] Not every lie is probative of guilt. The lie must be in response to a realisation of guilt or fear of the truth.[197] The lie must be told in relation to a material issue as the accused must be endeavouring to avoid implication of the matter charged.[198] It can be argued that lies are a form of guilty behaviour.[199] Guilty behaviours are important as they are circumstantial evidence of guilt.[200] This stems from the general notion that guilty individuals will behave differently to those that are innocent.[201] However, it must be noted that guilt is not the only reason people lie.[202] For example, an individual suspected of a crime, may lie to distance themselves from the alleged event or avoid the inconvenience of an investigation. [203]

In Lane, the Crown advanced three lies, all pertaining to the whereabouts of the child, for this argument. First, Lane told Virginia Fung[204] she had given the child to a family in Perth (‘Perth lie’). Second, Lane, in her February 2001 interview with the police, informed that the child had been given to the child’s father, Andrew Morris (‘Morris lie’). Then, Lane, in her October 2002 and May 2003 interviews, named the father as being Andrew Norris (‘Norris lie’). It is instructive to note that the Morris and Norris lies were asserted over nine different accounts.[205] In this case, each assertion was to be evaluated by the jury as an individual statement. These statements were held to be lies as persons consistent with the Perth family, Andrew Morris or Norris could not be located or linked to Lane’s story. The inference the jury was invited to make was regarding the physical element of the offence, in particular, that Lane had told these lies, and perpetuated them, because she had killed Tegan and ‘the truth was too terrible to contemplate’.[206]

B Evidence of Motive

The prosecutorial cases for the three no-body murders all included evidence related to the motive of the accused.

The motive behind the accused’s actions, in some cases, can be used as circumstantial evidence.[207]

In Australia, the prosecution does not have an obligation to prove motive on the part of the accused.[208] Nonetheless, there are several ways in which motive evidence may be used, and even more reasons it may be beneficial to the prosecution.

Motive evidence is most cogent to establishing the fault element. The distinction between murder and manslaughter, which have a similar physical element, is the accused’s mental state. To find a murder conviction, it must be proved that the accused had an intention to cause death or grievous bodily harm (‘GBH’) or was recklessly indifferent to human life.[209] This will not always be easily ascertainable.[210] This is aptly embodied in the dictum of Brian CJ who noted that ‘the devil himself knows not the thought of man.’[211] However from motive evidence factfinders can draw inferences relevant to the state of mind of the accused.[212] In Baden Clay[213] the court found that motive evidence, though not necessary, could assist in proving whether the intent to kill or cause GBH existed. More specifically, such evidence may make murder a more probative event than manslaughter.[214] It may be argued that intent is what guides the offender whereas motive is the driving force behind it.[215] In some cases, the motive may be the very thing that gives rise to the intention, in turn, turning an innocent physical element into an unlawful act.[216] Therefore, motive may be defined as the circumstances or emotions which induce a person to act.[217]

Evidence of motive can also be used to discern the identity of the offender.[218] The motive may have bearing on the question of whether a crime was committed and, if so, it was done so by the accused.[219] When using circumstantial evidence to identify the offender it is pertinent that alternative hypotheses be eliminated.[220] For this reason, such evidence will have probative value as an accused with a motive to kill will make the hypothesis that they were the offender, as opposed to any alternative theory, more probable.[221] As noted in Edwards, ‘evidence of motive ... can be relevant because it may make it more likely that the accused committed the offence alleged’.[222]

The Crown, in the Burrell case, established motive by evidencing the accused’s ‘desire for money and his increasingly, apparently irrational, pursuit of it’.[223] The accused’s actions, prior to May 1997, regarding his finances were used as evidence.[224] In May 1996 Ms Bromely, the accused’s wife, stopped providing Burrell financial support after the deterioration of their marriage, and his subsequent departure from the family business.[225] Evidence was led from the accused’s father who admitted to loaning Burrell a substantial amount of money to maintain his property.[226] In May 1997 the accused had a bank balance of $634.[227] From this body of circumstantial evidence, it was inferred that the accused was facing financial difficulties. Therefore, according to the Crown, the kidnapping and killing of Whelan was financially motivated.

This inference was strengthened by further circumstantial evidence. The Crown submitted evidence regarding the accused’s interactions with Peter Buckley, a former friend and work acquaintance of the accused. In early 1997, Burrell asked Buckley to provide him a fictious letter of employment for the purposes of obtaining a loan from a bank.[228] He also, forcefully, asked Buckley to either gift or loan him a substantial sum of money.[229] This, the Crown argued, showed the desperate state of the accused. This desire, according to the Crown, is what prompted the intentional kidnapping and ransom demand, and eventual murder, of Whelan. Therefore, the Crown established Burrell as the probable killer, as he had reasonable motive for the commission of the crime.

Similarly, the motive put forward in Lane regarded the selfish desires of the accused.[230] The Crown brought charges of murder, as opposed to manslaughter, against Lane. This necessitated the establishment of a state of mind to commit the crime, and for this reason, motive evidence was used.[231]

The Crown supplied the jury with two motives. Lane’s short-term motive, the Crown argued, was to avoid the responsibility for the care of Tegan.[232] In the long-term, Lane was motivated by ‘[h]er sporting life, her social life, educational career, her job, her Olympic ambitions, her overwhelming fear of rejection by her family and friends that would bring shame on her’.[233] These inferences were drawn from the evidence regarding Lane’s disposal of prior and subsequent pregnancies.[234] The Crown alleged that Lane, motivated by selfish endeavours and a fear of shame, found ways to permanently dispose, whether through terminations or adoptions, of her pregnancies.[235] Therefore, it can be inferred that the same was done with Tegan, however, in this case, unlawfully.

In the Edwards case, the Crown relied on motive evidence to make more probable the identity of the killer as the accused. The motive here was emotional turmoil. The Crown argued, that in light of emotional upsets or distresses in his life, Edwards was motivated to commit sexual assault and acts of violence towards unknown females.[236] EB was the first wife of the accused.[237] The two divorced in or around 1997. They had separated before this and resided in different premises. On an evening close to Australia Day, the accused visited EB, unannounced, at her mother’s residence. Edwards asked EB if she would accompany him to ‘see some fireworks’.[238] EB declined. According to the Crown, from this it can be inferred that EB rejected a ‘gesture of reconciliation’ from the accused.[239] Then, in the early hours of 27 January 1996, Spiers disappeared. The Crown concluded that this offence was motivated by the ‘accumulation of significant emotional upheaval in the accused’s person life in the immediate lead up to the disappearance of Sarah Spiers’.[240]

C Propensity and Similar Fact Evidence

Instead of evidence regarding circumstances, the Crown in Edwards, used propensity evidence. Propensity evidence is a form of circumstantial evidence under common law.[241] Propensity evidence refers to the tendency, disposition, or inclination of a person to behave in a particular way or on the basis of a certain state of mind.[242] Under the umbrella of propensity evidence exists similar fact evidence.[243] Similar fact evidence is evidence of the accused’s past behaviour that is similar to, or shares common features with, the conduct giving rise to the current charges.[244] This generally incudes past conduct that is criminal or disreputable.[245]

The admission of propensity evidence can be done in two ways.[246] First, the evidence may be admitted if it is relevant to matters other than propensity, notwithstanding that it shows propensity.[247] Alternatively, the evidence may be admissible if its probative value outweighs its prejudicial effect.[248] The latter approach is taken in Western Australia[249] where propensity evidence is legislated under s 31A of the Evidence Act 1906 (WA) (‘Evidence Act’). Notwithstanding its statutory enactment, ‘[p]ropensity evidence is a form of circumstantial evidence’.[250]

Similar fact evidence, and in particular, its admissibility, inhabits an area of legal uncertainty.[251] The primary issue is the conflicted nature of such evidence, as it is admissible by virtue of its relevance, but can, simultaneously be prejudicial, and therefore, inadmissible.[252] The admissibility of such evidence is guided by the High Court decision of Pfennig v The Queen [1995] HCA 7 (‘Pfennig’).[253] The Pfennig[254] test goes to the relevance of the evidence.[255] The test echoes the test required for the evaluation of circumstantial evidence.[256] When dealing with propensity evidence, the factfinder is asked to gauge whether any rational[257] inferences consistent with innocence can be drawn.[258] Therefore, an adverse inference about the accused can only be drawn if it is the only reasonable one, and no other rational explanation exists for it.[259] An innocent explanation gives rise to reasonable doubt, and in turn, admission of it will be prejudicial to the accused.

Though relevant, often propensity evidence can engender a risk of prejudice. Evaluation of such evidence can, in some instances will, involve a generalisation of human conduct.[260] Just because a person acted in a particular way in the past does not necessarily mean they have done so again. People can, and do, break patterns of behaviour.[261] However, establishing propensity can make it more likely that the perpetrator was the accused.[262] Evidence of past negative conduct may also distract the jury from the matter in dispute. Acorn[263] believes this may lead some jurors to punish the accused for past conduct by convicting the current conduct.[264] Therefore, the threshold for admissibility of propensity evidence is high.[265]

The prosecutorial case in Edwards relied on both propensity and similar fact evidence to establish the identity of the killer.[266] The similar fact evidence relates to the other two charges in the trial. According to the Crown, the similarity regarding the disappearances of the three victims, necessarily ‘establishes that they were killed by the same person’.[267] This body of evidence included several items.[268] First, the similarity in age and appearance of the victims.[269] Second, the vulnerable situation the victims were in, in particular caused by their alcohol consumption and unaccompanied presence near the Claremont entertainment precinct. Third, the time and date of the disappearances as all three victims were last seen alive in the early morning hours of the weekend. Finally, the geographical and temporal proximity of the offences.[270]

The propensity evidence relates to the earlier criminal incidents of the accused. The first related to a break in and attempted rape (‘Huntingdale’ offence).[271] The second related to an attack by the accused on an unknown woman, in which she was gagged, dragged towards a toilet cubicle, but ultimately escaped (‘Hollywood Hospital’ offence).[272] The third was the abduction and sexual assault of a 17-year-old female (‘Karrakatta’ offence).[273] Each offence, which the accused had already pleaded guilty to,[274] provided propensity evidence. In totality, the evidence was used to establish the accused as having a propensity to violently attack, and in some cases abduct, unknown and vulnerable females. The Karrakatta offence was also used as similar fact evidence, due to the similarity in abduction site, time and day, age and appearance, and vulnerabilities of the victims. This evidence was also used to indicate the accused having the knowledge and ability to subdue and abduct women.[275]

The Crown also used motive to establish propensity.[276] The Crown argued that prior to the murders of Glennon and Rimmer, the accused experienced emotional turmoil.[277] According to the Crown, this was indicative of a propensity, on the part of the accused, to attack unknown women when in a state of emotional distress.

V CASE THEORY AND THE LEGAL NARRATIVE FRAMEWORK

Case theory refers to the explanatory narrative or framework which details the prosecutorial or defence case.[278] This explanatory structure is dependent on the evidence. Evidence itself can be considered disparate bodies of information.[279] These individual pieces are given value when placed in a legal narrative.[280] As noted in Edwards, the ‘proper approach is to fit the case theory to the evidence, not to try to fit the evidence to the case theory’.[281] Evidence acts as the ‘blocks’ used to construct a narrative. This analogy is aptly captured by the closing remarks of the Crown in Burrell: ‘a circumstantial case is a case that depends on a whole lot of building blocks to make wall’.[282] This article argues that the success of a no-body murder prosecution hinges on the strength of the prosecutor’s case theory. This part will demonstrate the impediment a weak case theory, and to a lesser extent, lack of pieces of evidence, are to the success of obtaining a no-body murder conviction.

Case theory has become an indispensable tool in lawyering, and its effectiveness stems from its story like nature.[283] Storytelling has always played a part in legal advocacy.[284] Therefore, the concept of case theory relies on an understanding of narratives. In the broadest sense, a narrative refers to the recounting and reception of stories.[285] From the legal perspective, this involves two parties: the producers of the stories, the lawyers, and the receivers of said stories, the factfinders. The aim of a case theory is to frame the evidence and facts in a manner which best achieves the client’s goals.[286] In terms of a no-body murder trial, the evidence, for the prosecution, must be framed so as to convict the accused.

In a trial, factfinders will be faced with complex and copious amounts of evidence. Research suggests that in these circumstances, factfinders, in particular jurors, will organise this information in a narrative framework. [287] Often this is an unconscious occurrence.[288] This notion stems from the fact that humans inherently rely on stories to process most aspects of life.[289] This is most obvious in the way in which memories are constructed or dreams are experienced.[290] Jurors will often make judgements on complicated matters without any, or insignificant, prior knowledge of the subject matter. This supports the theory that factfinders possess ‘everyday equipment for living’ that provides this ability.[291]

The narrative mode of recounting and receiving evidence carries several risks which merit some comment. First, nearly all aspects of a conventional story, such as events and characters, have salience.[292] This is not true for a legal case theory. Therefore, due to their expectations of narrative structures, factfinders may give improper weight to certain pieces of evidence.[293] Second, legal stories are constrained by procedural rules, in particular regarding the use and admissibility of evidence.[294] This process is beneficial as it increases the efficiency of the trial process and brings attention to only probative and relevant matters.[295] However, the exclusion of certain items of evidence will lead to informational gaps in the narrative. In these situations, Griffin[296] argues, factfinders, in pursuit of completing the narrative, will supplement these deficiencies with their own knowledge or generalisations.[297] This is referred to as heuristic processing,[298] and is engaged by both jurors and judges.[299] This may lead to the construction of incorrect stories, which in turn, lead to false conclusions. However, as discussed in Part II, both jurors and judges are reliable and responsible decision makers. Beyond this, the need for narratives as a means for processing complex and unfamiliar information certainly counters these risks.

Legal narratives draw on the factfinders use of ‘schemas’.[300] A schema refers to the framework by which stories are understood.[301] Information is placed into a pre-existing structure built on conventions and previous experiences. This includes familiar plot structures with a beginning, middle and end, shared beliefs or stereotypes, motives and morals, and traditional actors such as heroes and villains.[302] Some scholars refer to these narrative structures as ‘stock’ stories or scripts.[303] These stock stories are effective as they establish, and in some cases reinforce, a relationship between evidence and the shared understandings held by factfinders.[304] For example, a narrative develops character tropes through incidents and interactions, rather than just explicitly characterising them.[305]

Furthermore, narrative structures are used to assess the evidence.[306] The acceptance of a case theory is dependent on the credibility and cohesiveness of the explanatory narrative.[307] According to Kruse,[308] evidence itself has no value; neither can its credibility be gleaned in isolation.[309] Therefore, to construct the credibility, and in turn value, of evidence it must be incorporated into a narrative.[310] Stories facilitate the organisation, interpretation, comparison, and testing of vast amounts of information.[311] The narrative acts like a reference framework, into which pieces of evidence, over the course of the trial, are fit into and interpreted.[312] The factfinder will construct several competing narratives with the same items of evidence.[313] These stories are then compared, and the most persuasive and plausible one selected.[314] This selection then guides their verdict. This is indicative of the theory that jurors test the evidence as a whole rather than assessing each piece individually.[315]

In legal practice, the doctrine of case theory encapsulates narrative construction.[316] The narrative involves events that occur over a period of time, and are selected, invented, and/or emphasised by the creator.[317] Therefore, the case theory ‘shapes what happened’.[318] In a case, there are two competing, yet no less truthful, stories.[319] In turn, there are two dominant narratives in any given case: the ‘guilty’ perspective and the ‘innocent’ perspective.[320] The aim for the prosecution, and defence, is to persuade the factfinder into adopting their narrative.[321] Certain practices and tactics have, in pursuit of this goal and in alignment with knowledge regarding the interpretative processes of factfinders, developed in the legal realm.

First, lawyers will strive to construct a narrative that aligns with those already imbedded in the factfinders mind.[322] This story should act as the broad framework in which the factfinder can reconfigure their interpretation of the evidence.[323] Rather than a complex analysis of the evidence, it will be used to support factual propositions.[324]

Second, lawyers must construct narratives that impart certainty. Certainty is governed by concepts of coherence and plausibility.[325] Coherence corresponds to the ‘internal assessment’ of the story.[326]

A coherent narrative should be free of contradictions, whether it be the evidence or other factual propositions, and should provide a recount that is, or close to, complete.[327] Plausibility is the external assessment of the narrative. A plausible narrative is one which, in light of personal experience, the factfinder perceives to be believable.[328] The effectiveness of a story, as posited by Pennington and Hastie,[329] will be lessened if other coherent and plausible narratives are introduced.[330]

To attain a favourable outcome, the defendant must create reasonable doubt about their guilt. The prosecution will provide the factfinders with a case theory. The defendant will provide a rebuttal to this or offer an alternative narrative.[331] An attack on the prosecutorial case, as posited by Miller,[332] is akin to ‘poking holes’ in it.[333] This in turn will weaken it.[334] Therefore, a successful prosecutorial case will consider and account for any potential deficiencies in the narrative constructed.

The prosecutorial case theories of Lane, Burrell, and Edwards use various items, as examined in Part IV, of circumstantial evidence. These evidential items are placed into a narrative to establish the guilt of the accused. A few observations can be made from the outset. The narratives in Lane and Burrell are constructed on a considerable amount of circumstantial evidence, free from substantial contradictions, and able to withstand attacks by the defence. The same cannot be said for Edwards. This is indicative of a weak case theory impeding on the success of a no-body murder prosecution. The legal narratives of the cases will be explored in turn.

A Case Analysis: Lane

The Crown narrative regarding the murder of Tegan Lane was as follows. The case theory established connections between Lane and the circumstantial evidence. These relationships were aimed at positioning Lane as the likely ‘villain’, the guilty party, of the story. In totality, ‘the Crown case relied upon an extensive and factually interwoven circumstantial case’.[335]

The circumstantial evidence was used to support the factual propositions of opportunity and motive. Motivated by her fear of rejection from family and friends, Lane had a history of becoming pregnant and disposing of her children. In the present case, Lane was also concerned with continuing her sporting and educational life, as well as keeping ‘her social life at its optimum’.[336] This time her pregnancy was brough to term. These ‘selfish’ fears motivated her disposal of Tegan.[337] Knowing the child was not to remain in her care, Lane had made no preparations regarding Tegan’s care after birth. Therefore, Lane’s intentional disposal of Tegan satisfied the requisite fault element for murder. Beyond this, the child was last seen with Lane. In the otherwise unexplained intervening hours between her departure from the hospital and arrival at her parent’s residence, Lane ‘had the opportunity to kill Tegan’.[338] Through victimology, specifically the vulnerability of the child and inability to locate the child, and opportunity, the Crown posited that the child was dead and not missing.

The defence rebutted this narrative.[339] The major argument being that, in light of no direct evidence indicating the death of Tegan, the child could be alive. According to this narrative, Tegan was given into the care of her natural father by Lane. This was supported by evidence of Lane lawfully disposing of previous pregnancies. Alternatively, if this rebuttal narrative was rejected, the defence also directly attacked the prosecutorial story. Namely, by challenging the ability of the evidence to positively identify the death of Tegan as the intentional and ‘deliberate’ act of Lane.[340]

Coherence was established by refuting the defence contradictions. The Crown knew that they carried ‘an obligation of excluding any reasonable explanation or hypothesis inconsistent with guilt’.[341] The Crown discredited the alternative narrative through evidence of victimology.[342] The attacks on the prosecutorial case were accounted for through evidence of Lane’s lies. The lies told by Lane were created, and perpetuated, because she ‘wished to conceal the fact that she had murdered her daughter Tegan’.[343]

The plausibility of the narrative was drawn through a process of elimination. When considered in light of general human experience, the narrative offered by the defence was hard to accept because, as Whealy J put regarding the transfer of Tegan’s care to her father, ‘[i]t would be an unusual thing for a mother to do’.[344] Therefore, the narrative constructed by the Crown better withstood the test of plausibility.

To summarise, the strength of the Lane prosecutorial case theory can be attributed to its adherence to narrative conventions and the sense of certainty it imparted to the factfinder.

B Case Analysis: Burrell

The Crown narrative regarding the murder of Whelan is one involving ‘motive, knowledge and opportunity’.[345]

According to the Crown, Whelan left the scene of her last known whereabouts in a white Pajero 4WD. This vehicle was owned and driven by the accused. This, coupled with the unlikeliness of Whelan voluntarily disappearing, as deduced from her victimology, leads to the conclusion that she was dead. The fact that she was last in the company of the accused leads to the belief that he was the killer. This establishes the physical element of the offence.

The narrative then shifts to satisfying the requisite fault element of the charge. The Crown placed the other evidential items ‘against a background of the appellant’s financial difficulties’.[346] Burrell is depicted as a man desperately acting to remedy his impecunious situation, going as far as to threaten acquaintances and engage in conduct to commit fraud. This then motivated the accused to engage in a ‘desperate move and that desperate move was kidnapping Mrs Whelan for a ransom’.[347] This relationship was evidenced by the accused’s future planning consistent with an improved financial situation. As explored earlier, intent is necessarily linked to motive as the latter often gives rise to the former.[348]

The ‘dot point’ evidence was also used to show intent, as well as reinforce Burrell as the killer. These notes, as put by the Crown, were drafts of the ransom and/or plans of the kidnapping.[349] The Crown narrative also provided a ‘suggested interpretation’ of these notes.[350] It can be argued that the Crown’s extrapolation of the ‘dot point’ evidence was to avoid the possible heuristic processing of the evidence in manner that contradicted their narrative. It was noted, that ‘the Crown case at all times remained one where individual facts gained cogency from other facts in the case’.[351] Therefore, to establish plausibility, the Crown relied on the similarities between the ransom note, the interpretation of the dot point notes, and the murder plot constructed.

The Crown case then turned to the ‘Goulburn call’ evidence. Now knowing the ransom was written by the accused, it only made sense for the accused to have been the one to have made the call. This is evidenced by the fact that the caller had knowledge of the ransom note known only to a limited number of people, and the accused making a call on the same day, and from the same public phone, as the offender.

Rather than offer an alternative narrative, the defence efforts focused on ‘poking holes’ in the prosecutorial case. The defence case was that there ‘was no, or insufficient, evidence to connect the appellant with the disappearance’ of Whelan.[352]

However, each of these was successfully rebutted by the Crown. As a result, the coherence of the prosecutorial narrative was maintained. First, the defence contended that there was no clear evidence proving Whelan got into the Pajero.[353] Whelan, as argued by the defence, walked to the left of the ramp, and therefore this was the cause of the image of her person disappearing from the security camera recording. However, this scenario was easily struck down due to its implausibility. If this had occurred, then Whelan would have exited and progressed across Philip Street.[354] There was nothing to support this suggestion, and as the judgement noted, the ‘evidence is entirely inconsistent with her movements in the video recording’.[355]

Second, as regards to opportunity, the accused contended that he, at the time of the alleged offence, had had a telephone conversation with an acquaintance. Beyond this, the accused claimed to have a back condition,[356] which physically impacted him at this time. He argued that, due to these incapacitations, it is unlikely he carried out the crime. The Crown contended that there was no sufficient evidence regarding this call. In addition, the possibility of the accused making the call and being present at Parramatta was possible. The Crown also relied on evidence of the accused’s physical activities leading up to the day of the offence, as well as a lack of response to his prescription for medication, to discredit the severity and/or existence of a back condition.[357] The Crown case painted these accounts as a false alibi and ‘part of a smokescreen’.[358]

Third, in regard to the ‘Goulburn call’ the defence posited that there existed an inference consistent with the innocence of the accused. Namely, that the accused had made a call to his solicitor, from that public phone and at that time. However, this attack was already considered by the Crown, who argued that this was not plausible as this ‘account was inconsistent with the record of calls kept by the solicitor’s office’.[359]

C Case Analysis: Edwards

The narrative about the murder of Spiers is constructed to reflect those led for the murders of Rimmer and Glennon. In essence, the Crown’s narrative is that ‘the similarity of the circumstances relating to the disappearance of the three victims ... establishes that they were killed by the same person’.[360]

The Crown’s narrative involved the killer, the accused, preying upon young woman who were alone and inebriated in the Claremont entertainment precinct.[361] Spiers, as outlined by her victimology, was accepted by both sides as having died. As evidenced through the Huntingdale, Hollywood Hospital, and Karrakatta offence, the accused, according to the Crown, possessed the knowledge and ability to successfully subdue, restrain and abduct women.[362] Therefore, the accused was responsible for the abduction and murder of Spiers.

According to the Crown narrative, in response to emotional turmoil in his personal life, the accused would violently attack unknown women. This was the case before the murders of Rimmer and Glennon, and therefore, an emotional distress around Australia Day motivated the accused to murder Spiers.[363] This was indicative of an intention on the part of the accused and established the requisite fault element.

The prosecutorial narrative was subject to substantial deficiencies. These were successfully exploited by the defence. These also significantly affected the decision reached by the judge. The attack on the Crown narrative is as follows.

First, the defence raised doubts as to the timeline of events posited by the State. To have murdered Spiers, the accused would, due to a work shift the previous day, have had, as Hall J noted, ‘no realistic opportunity to sleep for some 30 hours or more’.[364] The prosecutorial rebuttal was an assertion to the possibility of the accused being a man ‘with unusual stamina’.[365] In response, the judge noted that it ‘may or may not be so’.[366] This, arguably, did not restore the verisimilitude of this part of the narrative, in turn, negatively impacting the overall plausibility. There was also little or no evidence to support this notion. The chronology created by the Crown failed to consider this contrary evidence.[367] This diminished the coherence of the prosecutorial narrative as it was contradicted and imparted a sense of incompleteness.

Second, the Crown was forced to accept, at the end of their case, that the evidence was incapable of establishing the purported motive.[368] The subtraction of this evidence had significant impact on the overall prosecutorial narrative. Motive can, as evidenced by Lane and Burrell, be used to characterise the accused as the ‘villain’ of the narrative. This is occurrs because the motives underlying the actions of an individual can affect the perceived liability to be attributed to them.[369] Therefore, factfinders are more inclined to attribute blame, and punish, those who act with ‘bad motives’.[370] In this case, the prosecutorial motive was discredited. This, in turn, weakened the plausibility of the accused being the blameworthy party for the murder.

Third, the defence attacked the potential similarities between the Karrakatta offence and Spiers’ murder. Unlike Spiers who was murdered, the accused did not, or make any attempt to, kill the victim of the Karrakatta offence.[371] This, according to the defence, was due to nothing but the intention of the accused to not do so, as he ‘could have killed her if he had wished to do so’.[372] The Crown countered by arguing that the intention did exist, however circumstances arose to inhibit the murder.[373] This argument was rejected by the factfinder.[374] In turn, the propensity from this evidence relied on by the Crown was weakened.

Fourth, the Crown narrative plot detailing Spiers’ murder hinged on the theory of the person killing her being the same as the one who killed Rimmer and Glennon.[375] To establish this, the Crown relied on ‘broad factual similarities between the disappearances’ of the victims’.[376] For this argument to proceed, the similarities must be ‘sufficiently cogent and compelling’ as to exclude alternative narratives explaining them.[377] The judge in this instant did not find in favour of the prosecutorial narrative, holding the similarities general, rather than striking, in nature.[378] As a result, an alternative consistent with the innocence of the accused was a possibility.[379] Therefore, this part of the prosecutorial case was unable to persuade the factfinder into acceptance of it.

Following this, it was noted that a body of propensity evidence alone was unlikely to establish guilt.[380] Other items of evidence were needed to show the accused as having acted upon his tendencies. As the other major items of evidence, and subsequently their narrative parts, were either rejected or carried insignificant weight, they were unable to support the propensity evidence and implicate the accused. Therefore, the prosecutorial narrative constructed for Edwards failed to persuade the factfinder due to its lack of evidential items, and decreased coherency and plausibility. This was not the case for Lane and Burrell, which created a narrative that adhered to the expectations of the factfinders and was able to maintain its sense of certainty in the face of the defence’s rebuttals.

VI CONCLUSION

The absence of a dead body can be a challenging circumstance for investigators and prosecutors, whether it be a lack of direct evidence or doubt about the victim’s death. However, despite the hurdles, convictions for no-body murders have been tried, and successfully prosecuted, in Australia. These cases, though scarce, are instrumental in defining the practices, rules, and norms guiding the prosecution of no-body murders.

For the purposes of establishing the physical element of a murder, the victimology of an individual is instrumental in evidencing their death in the absence of their body. The cases of Lane, Burrell, and Edwards are indicative of this. In Burrell and Edwards, the victims were held to be dead due to the lack of life evidenced through a lack of sightings of their person, contact with family, and digital footprint. The alternative proposition, of the victims having disappeared, was overcome by deeming such an occurrence to be out of character. In Lane, due to the vulnerable state of the child and inability to locate the child in the care of another person, the victim was established as being dead.

These cases also demonstrate the deficiency in evidence, in particular direct evidence, the absence of a body causes. In this situation, successful prosecutorial cases of no-body murders must rely on circumstantial evidence. The varying types of circumstantial evidence can be used to discern the identity of the murderer, for example by evidencing opportunity, as well as establish the requisite fault element, most effectively through evidence of motive.

However, on its own, each item of evidence in unlikely to establish the guilt of the accused.[381] Therefore, evidence in a circumstantial case must be looked at ‘as a whole’ rather than in a ‘piecemeal fashion’.[382] Accordingly, a successful prosecutorial case theory, as evidenced by Lane and Burrell, requires a substantial, and varying, body of circumstantial evidence. This evidence acquires meaning through the support of a coherent and plausible explanatory narrative. As demonstrated by Edwards, a prosecutorial case will be jeopardised if it fails to account for alternative narratives, theories, and contrary evidence, and fails to support factual propositions with evidence. All these deficiencies are further compounded by a lack of items of evidence.

No-body murders are not a new phenomenon, however, they have, in recent times, found greater interest in the public, media, and legal sphere. Following this, their potential effect on missing persons cases, and the willingness of jurors to convict without a body, prosecutorial pursuit of these cases is likely to increase. Therefore, an understanding of the law developing in the area is important for the prosecution of perpetrators of murder, and in turn, justice for their missing victims.

***


* Rumesha Kashif is a Canberra Law School graduate. The article is based on the author&#82[1]s LLB Honours dissertation.

1 People v Manson, 71 Cal App 3d 1, 42 (1977).

[2] Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (Oxford University Press, 5th ed, 2014) 14. The offence of homicide, and its many forms, is defined by state legislation: see, eg, Crimes Act 1900 (NSW) pt 3 div 1.

[3] See Andrew Cornford, ‘Mitigating Murder’ (2016) 10(1) Criminal Law and Philosophy 31.

[4] Fiery Cushman et al, ‘Simulating Murder: The Aversion to Harmful Action’ (2012) 12(1) Emotion 2; Pri Perera, Emina Canic and Elliot A Ludvig, ‘Cruel to Be Kind but Not Cruel for Cash: Harm Aversion in the Dictator Game’ (2016) 23(3) Psychonomic Bulletin and Review 893.

[5] See, eg, Findlay, Odgers and Yeo (n 2); Thomas Crofts, ‘Two Degrees of Murder: Homicide Law Reform in England and Western Australia’ (2008) 8(2) Oxford University Commonwealth Law Journal 187.

[6] See Rollins M Perkins, ‘The Corpus Delicti of Murder’ (1962) 48(2) Virginia Law Review 173.

[7] See, eg, Claire Ferguson and Kamarah Pooley, ‘Australian No-Body Homicides: Exploring Common Features of Solved Cases’ (2019) 66 Journal of Forensic and Legal Medicine 70; James Morton, ‘Evidence in “No-Body” Murder Trials’ (2006) 70(6) Journal of Criminal Law 459; Claire Ferguson and Kamarah Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (2019) 23(4) Homicide Studies 381.

[8] Doug LePard et al, ‘Challenges in Serial Murder Investigations Involving Missing Persons’ (2015) 16(4) Police Practice and Research 328.

[9] See Ferguson and Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (n 7).

[10] See, eg, Kylie Reale and Eric Beauregard, ‘Body Recovery After the “First 48”: Implications for Sexual Homicide Investigations’ (2019) 23(2) Homicide Studies 126.

[11] According to the Collins Dictionary, the saying is used to ‘mean that someone who is dead cannot reveal the truth about what caused their death’: ‘Definition of “dead men tell no tales”’, Collins English Dictionary (Web Page) <https://www.collinsdictionary.com/dictionary/english/dead-men-tell-no-tales>.

[12] See LePard et al (n 8); Reale and Beauregard (n 10).

[13] For example, the value of forensic evidence can be inferred from the fact that cases with DNA evidence in Queensland are more likely to be accepted for prosecution and reach court: Tom McEwen and Wendy Regoeczi, ‘Forensic Evidence in Homicide Investigations and Prosecutions’ (2015) 60(5) Journal of Forensic Sciences 1188.

[14] R Aparna and R Shanti Iyer, ‘Tears and Eyewear in Forensic Investigation: A Review’ (2020) 306 (January) Forensic Science International 110055:1–9.

[15] Ibid; Joseph A Prahlow et al, ‘DNA Testing in Homicide Investigations’ (2017) 57(4) Medicine, Science and the Law 179.

[16] Reale and Beauregard (n 10).

[17] Ferguson and Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (n 7).

[18] Social good refers to products, services, and causes targeted at enhancing the wellbeing of humans at large: Michàlle E Mor Barak, “The Practice and Science of Social Good: Next Generation Paths for Social Change” (2018) 28(2) Research on Social Work Practice 214, 214.

[19] Francis Paul Greene, ‘I Ain't Got No Body: The Moral Uncertainty of Bodiless Murder Jurisprudence in New York After People V. Bierenbaum’ (2003) 71(6) Fordham Law Review 2863, 2899.

[20] See, eg, LePard et al (n 8); Reale and Beauregard (n 10).

[21] Ferguson and Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (n 7) 383. See also Enzo Yaksic et al, ‘Detecting a Decline in a Serial Homicide: Have We Banished the Devil from the Details?’ (2019) 5(1) Cogent Social Sciences 1678450: 1–23.

[22] Y Gloria Park, ‘Truth as Justice: Legal and Extralegal Development of the Right to Truth’ (2010) 31(4) Harvard International Review 24.

[23] Ibid.

[24] See, eg, Jeremy Sarkin, ‘Why Victimology Should Focus on All Victims, Including Missing and Disappeared Persons’ (2019) 25(2) International Review of Victimology 249.

[25] See, eg, Thomas A DiBase, No-Body Homicide Cases: A Practical Guide to Investigating, Prosecuting, and Winning Cases When the Victim is Missing (CRC Press, 2015).

[26] See, eg, Megan Palin, ‘“No body” Murder Convictions Prompt Calls for Shake Up of Australia’s Legal System’, News.com.au (online, 2 March 2016) <https://www.news.com.au/lifestyle/real-life/news-life/no-body-murder-convictions-prompt-calls-for-shake-up-of-australias-legal-system/news-story/d19968b5c570d5e01a412663cba82215>; Eliza Laschon, ‘“No Body, No Parole” Laws Give Murder Victim Wade Dunn’s Fresh Hope’, ABC News (online, 22 March 2018) <https://www.abc.net.au/news/2018-03-22/no-body-no-parole-laws-already-having-an-impact/9569310>.

[27] See, eg, Corrective Services Act 2006 (Qld) s 193A.

[28] In Australia the prosecution in a criminal trial is referred to as the ‘Crown Prosecutor’. The article will use the term ‘Crown’ interchangeably with the term ‘prosecution’.

[29] DiBase (n 25) 43.

[30] Ibid.

[31] See especially Ferguson and Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (n 7) 382.

[32] See, eg, ‘Murder Conviction Upheld Despite Lack of Direct Evidence of Corpus Delicti’ (1961) 61(4) Columbia Law Review 740; Perkins (n 6); Francis Willmarth, ‘Criminal Law: Murder: Proof of Corpus Delicti by Circumstantial Evidence’ (1960) 48(5) California Law Review 849; Steve Weinberg, ‘Missing and Presumed Murdered’ (1995) 81(9) American Bar Association Journal 62; Gordon Linkon, ‘The Corpus Delicti – Confession Problem’ (1952) 43(2) Journal of Criminal Law, Criminology, and Police Science 214; Theodore Sachs, ‘Criminal Law: Proof of the Corpus Delicti by the Use of Extra-Judicial Confessions’ (1950) 48(8) Michigan Law Review 1197; M J S, ‘Corpus Delicti’ (1923) 21(3) Michigan Law Review 339; Greene (n 19); Artem M Joukov and Samantha M Caspar, ‘Wherefore is Fortunato: How the Corpus Delicti Rule Excludes Reliable Confessions, Helps the Guilty Avoid Responsibility, and Proves Inconsistent with Basic Evidence Principles’ (2018) 41(3) American Journal of Trial Advocacy 459; Peter C Bennet, ‘Corpuse Delicti in the New York Law of Homicide’ (1957) 24(1) Brooklyn Law Review 71; Michael E Wheeler, ‘Invitation to Murder?: Corpus Delicti, Texas-Style’ (1989) 30(2) South Texas Law Review 267; David A Moran, ‘In Defense of the Corpus Delicti Rule’ (2003) 64 Ohio State Law Journal 817; ‘Evidence: Proof of Particular’ (1974) 87(5) Harvard Law Review 1074.

[33] There are, however, two research articles regarding no-body murders in Australia, however these are not from the legal perspective as they focus primarily on the investigation of such cases and use quantative research: Ferguson and Pooley, ‘Australian No-Body Homicides: Exploring Common Features of Solved Cases’ (n 7); Ferguson and Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (n 7).

[34] See Terry Hutchinson and Nigel Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ [2012] DeakinLawRw 4; (2012) 17(1) Deakin Law Review 83, 84. The doctrinal research will aid in bringing to attention the ‘interplay’ between the various legal doctrines and elements present in no-body murder prosecutions: Sanne Taekema, ‘Methodologies of Rule of Law Research: Why Legal Philosophy Needs Empirical and Doctrinal Scholarship’ (2021) 40(1) Law and Philosophy 33.

[35] See, eg, Terry Hutchinson, 'Developing Legal Research Skills: Expanding the Paradigm ' [2008] MelbULawRw 33; (2008) 32(3) Melbourne University Law Review 1065.

[36] The Lane case is an aggregation of the following hearing and judgement documents: R v Keli Lane [No 13] [2010] NSWSC 1540 (‘Lane [No 13]’); R v Keli Lane [No 18] [2010] NSWSC 1545 (‘Lane [No 18]’); R v Keli Lane [No 24] [2011] NSWSC 72 (‘Lane [No 24]’); R v Keli Lane [2011] NSWSC 289 (‘R v Keli Lane’); R v Lane [2011] NSWCCA 157 (‘Lane Appeal [2011]’); Lane v R [2013] NSWCCA 317 (‘Lane Appeal [2013]’).

[37] The Burrell case is an aggregation of the following hearing and judgement documents: Burrell v R [2007] NSWCCA 65 (‘Burrell v R’); Burrell v Regina [2009] NSWCCA 163 (‘Burrell Appeal’).

[38] The Edwards case is an aggregation of the following hearing and judgement documents: The State of Western Australia v Edwards [2019] WASC 87 (‘The State of Western Australia v Edwards’); The State of Western Australia v Edwards [No 2] [2019] WASC 282 (‘Edwards [No 2]’); The State of Western Australia v Edwards [No 4] [2019] WASC 418 (‘Edwards [No 4]’); The State of Western Australia v Edwards [No 7] [2020] WASC 339 (‘Edwards [No 7]’).

[39] Comparative research has always had a role in the broader doctrinal paradigm: See Terry Hutchinson, ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law’ (2015) 8(3) Erasmus Law Review 130, 133.

[40] Charles Manga Fombad, ‘Comparative Research: Contemporary African Legal Studies’ (2018) 67(4) Journal of Legal Education 984.

[41] It is also instructive to note, that due to the dearth of research regarding no-body murders, most, if not all, literature in this area is of value. Therefore, articles that have not been peer reviewed may be considered, though will not be given significant weight.

[42] David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 6th ed, 2015) 146.

[43] Australian Constitution.

[44] Greg Carne, ‘Detaining Questions or Compromising Constitutionality?: The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth)’ [2004] UNSWLawJl 32; (2004) 27(2) University of New South Wales Law Journal 524, 527.

[45] Criminal Code 1995 (Cth) (‘Criminal Code 1995’).

[46] R v LK [2010] HCA 17 [99].

[47] Australian Constitution.

[48] Homicide is the generic offence under which murder and manslaughter fall: R v Downs (1985) 3 NSWLR 312.

[49] Crimes Act 1900 (NSW) (‘Crimes Act).

[50] Grievous bodily harm is defined to include the destruction of a foetus of a pregnant woman, any permanent or serious disfiguring of the person, and causing the contracting of any grievous bodily disease: Ibid s 4 (definition of ‘grievous bodily harm’).

[51] Ibid s 18(1)(a).

[52] Ibid s 18(1)(b).

[53] Criminal Code Act Compilation Act 1913 (WA) (‘Criminal Code Act’).

[54] Crimes Act (n 49).

[55] Criminal Code Act (n 53) s 279. It should be noted that WA is a code jurisdiction and therefore legislation guides most, if not all, criminal law there. NSW, on the other hand, is a common law criminal jurisdiction and for this reason, the criminal law is partly covered by legislation, but substantially governed by laws derived from judicial decisions: Australian Law Dictionary (2nd ed, 2013) ‘codification’, ‘common law criminal jurisdiction’ (‘Australian Law Dictionary’); LexisNexis Concise Australian Legal Dictionary (5th ed, 2015) ‘code jurisdictions’, ‘common law jurisdictions’ (‘LexisNexis Legal Dictionary’).

103 and 111.

[56] The Crimes Act (n 49) uses ‘actus reus and ‘mens rea in reference to the elements of offences. The Criminal Code Act (n 53), due to an absence of any specific language, uses ‘physical’ and ‘fault’ elements as codified in the Criminal Code 1995 (n 45). The elements henceforth will be referred to as the ‘physical’ and ‘fault’ elements.

[57] Michael Gorr, ‘The Actus Reus Requirement: A Qualified Defense’ (1991) 10(1) Criminal Justice Ethics 11; Douglas N Husak, ‘The Orthodox Model of the Criminal Offense’ (1991) 10(1) Criminal Justice Ethics 20.

[58] Meir Dan Cohen, ‘The “Actus Reus” and Offences of “Situation”’ (1972) 7(2) Israel Law Review 186, 189.

[59] Gorr (n 57); Husak (n 57).

[60] Nori pg 150 TxtBook.

[61] Brown et al (n 42) 175.

[62] Crimes Act (n 49) s 18(1)(a). See also Criminal Code 1995 (n 45) div 5.

[63] Laura Spitz, ‘I Think, Therefore I Am; I Feel, Therefore I Am Taxed: Descartes, Tort Reform, and the Civil Rights Tax Relief Act’ (2005) 35(2) 429, 434.

[64] Fowler v Padget [1798] EngR 47; (1798) 101 ER 1103. See, eg, Colin Manchester, ‘The Origins of Strict Criminal Liability’ (1977) 6(4) Anglo-American Law Review 277; Chan Wing Cheong, 'The Requirement of Concurrence of Actus Reus and Mens Rea in Homicide' (2000) 2000(1) Singapore Journal of Legal Studies 75.

[65] Criminal Code 1995 (n 45).

[66] Ibid div 3.

[67] For example, a person who commits murder is liable to imprisonment for the term of the person’s natural life: Crimes Act (n 49) s 19A.

[68] Prue Bindon, ‘The Case for Felony Murder’ [2006] FlinJlLawRfm 9; (2006) 9(2) Flinders Journal of Law Reform 149, 151.

[69] Criminal Code 1995 (n 45) s 13.1–13.2.

[70] The material facts of the case are summarised from the judgement of Whealy JA in R v Keli Lane (n 36).

[71] The first name, as opposed to the surname, of the victim will be used henceforth to avoid any confusion with the name of the accused.

[72] The material facts of the case are summarised from the judgement of Beazely JA, and Grove and Howie JJ in Burrell Appeal (n 37).

[73] The first name, as opposed to the surname, of the Bernie Whelan will be used henceforth to avoid any confusion with the name of the victim.

[74] The material facts of the case are summarised from the judgement of Hall J in Edwards [No 7] (n 38). For an in-depth recount of the material facts see: Tim Clarke, Enigma of the Dark (West Australian Newspapers, 2020).

[75] Michael Chesterman, ‘Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy’ (1999) 62(2) Law and Contemporary Problems 69. See also Doney v The Queen [1990] HCA 51 (‘Doney’).

[76] See, eg, Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171.

[77] John Jackson and Sean Doran, ‘Judge and Jury: Towards a New Division of Labour in Criminal Trials’ (1997) 60(6) Modern Law Review 759, 760.

[78] Vicki Waye, ‘Judicial Fact-Finding: Trial by Judge Alone in Serious Criminal Cases’ [2003] MelbULawRw 16; (2003) 27(2) Melbourne University Law Review 423.

[79] See Neal Ellis, ‘Saving the Jury Trial’ (2006) 23(2) GPSolo 28.

[80] Ibid.

[81] Waye (n 78).

[82] Jodie O’Leary, ‘Inspiring or Undermining Confidence? Amendments to the Right to Judge Alone Trials in the ACT’ (2011) 10(3) Canberra Law Review 30.

[83] Ibid; Rebecca McEwan, John Eldridge and David Caruso, ‘Differential or Deferential to Media? The Effect of Prejudicial Publicity on Judge or Jury’ (2018) 22(2) International Journal of Evidence and Proof 124.

[84] See, eg, Criminal Procedure Act 2004 (WA) s 118. The order for a judge alone trial was granted in Edwards due to the pre-trial publicity, technical and disturbing nature of the evidence, and likely length of the trial: Edwards [No 7] (n 38).

[85] See, eg, Daniel Givelber and Amy Farrell, ‘Judges and Juries: The Defense Case and Differences in Acquittal Rates: Judges and Juries’ (2008) 33(1) Law and Social Inquiry 31; Bornstein, Brian H and Edie Greene, ‘Jury Decision Making: Implications For and From Psychology’ (2011) 20(1) Current Directions in Psychological Science 63; ‘Juror understanding of judicial instructions in criminal trials’, NSW Bureau of Crime Statistics and Research (Media Release, 29 October 2008) <https://www.bocsar.nsw.gov.au/Pages/bocsar_media_releases/2008/bocsar_mr_cjb119.aspx>.

[86] Givelber and Farrell (n 85) 32.

[87] For example, Australian businesswoman Melissa Caddick has been pronounced dead in the absence of her body. The police arrived at this conclusion after her decomposing foot was found 400 kilometres from where she disappeared: Jessica Kidd, ‘Melissa Caddick Dead, Police Confirm, After Campers Find Her Foot on NSW South Coast’ ABC News (online, 26 February 2021) <https://www.abc.net.au/news/2021-02-26/melissa-caddick-found-dead/13195242>; Australian Associated Press, ‘Melissa Caddick is Most Likely Dead, NSW Police Commissioner Says’, The Guardian (online, 8 March 2021) <https://www.theguardian.com/australia-news/2021/mar/08/melissa-caddick-is-most-likely-dead-nsw-police-commissioner-says>; Finabar O’Mallon and Michael Pelly, ‘Fraudster Caddick’s Death May Make It Easier to Recover Stolen Funds’, The Australian Financial Review (online, 26 February 2021) <https://www.afr.com/companies/financial-services/remains-of-missing-fraudster-melissa-caddick-found-20210226-p57618>.

[88] This was the case in the death of Azaria Chamberlain. Though Azaria’s body was never located, the clothes she was wearing were found. Due to their heavily blood-stained state, the court deduced that the child must be dead: Chamberlain v R [1982] FCA 235.

[89] See, eg, Weinberg (n 32).

[90] Lane Appeal (n 36) [23], [28], [258], [270]; R v Keli Lane (n 36) [39].

[91] Victimology is the study of victims of crime: The Oxford Dictionary of Sports Science and Medicine (3 ed, 2006) ‘victimology’.

[92] Morton (n 7) 459; Moran (n 32) 826; Joukov and Caspar (n 32) 464.

[93] Morton (n 7); John George Van Meter, ‘Proof of the Corpus Delicti by Circumstantial Evidence Where the Body is Never Found’ (1961) 63(2) West Virginia Law Review 156.

[94] Jan W de Keijser, Evianne GM de Lange and Johan A van Wilsem, 'Wrongful Convictions and the Blackstone Ratio: An Empirical Analysis of Public Attitudes' (2014) 16(1) Punishment and Society 32.

[95] Ibid.

[96] Ibid; Wheeler (n 32).

[97] JF Northey, ‘Murder: Proof of Corpus Delicti’ (1952) 15(3) Modern Law Review 348; R v Horry [1952] NZLR 111.

[98] See, eg, Geoff Newiss, ‘Estimating the Risk Faced by Missing Persons: A Study of Homicide Victims as an Example of an Outcome-Based Approach’ (2004) 6(1) International Journal of Police Science and Management 27; Sarkin (n 24).

[99] See, eg, E Bonny, L Almond and P Woolnough, ‘Adult Missing Persons: Can an Investigative Framework Be Generated Using Behavioural Themes?’ (2016) 13(3) Journal of Investigative Psychology and Offender Profiling 296; Marianne James, Jessica Anderson and Judy Putt, ‘Missing Persons in Austalia’ (2008) 353 (March) Trends and Issues in Crime and Criminal Justice 0817-8542: 1–6.

[100] See, eg, Nicholas R Fyfe, Olivia Stevenson and Penny Woolnough, ‘Missing Persons: The Processes and Challenges of Police Investigation (2015) 25(4) Policing and Society 409; Bonny, Almond and Woolnough (n 99); Erin Stewart, ‘Missingness: The Social Realities of Physical Absence’ (2020) 28(4) Illness, Crisis, and Loss 388.

[101] See Newiss (n 98); Fyfe, Stevenson and Woolnough (n 100).

[102] DiBase (n 25).

[103] Ibid 2.

[104] Claire Taylor, Penny S Woolnough and Geoffrey L Dickens, ‘Adult Missing Persons: A Concept Analysis’ (2019) 25(4) Psychology, Crime and Law 396.

[105] See, eg, Bonny, Almond and Woolnough (n 99).

[106] Ibid 298.

[107] Ibid.

[108] Fyfe, Stevenson and Woolnough (n 100); James, Anderson and Putt (n 99).

[109] Stewart (n 100)398; Bonny, Almond and Woolnough (n 99) 298.

[110] Stewart (n 100) 392.

[111] Ibid 388.

[112] Author Erin Stewart holds a doctoral degree from the University of Wollongong in Australia.

[113] Stewart (n 100) 389. See also Elisabeth Baumgartner and Lisa Ott, ‘Determining the Fate of Missing Persons: The Importance of Archives for “Dealing With the Past” Mechanisms’ (2017) 99(2) International Review of the Red Cross 663.

[114] Social exclusion generally includes people that are, due to systemic reasons, are excluded from engaging in economic, social and political activities that other citizens in society have access to allowing them to maintain an acceptable standard of living: Laura Kiepal, Peter J Carrington and Myrna Dawson, ‘Missing Persons and Social Exclusion’ (2012) 37(2) Canadian Journal of Sociology 137, 141.

[115] Stewart (n 100) 389.

[116] See, eg, Ferguson and Pooley, ‘Comparing Solved and Unsolved No-Body Homicides in Australia: An Exploratory Analysis’ (n 7).

[117] Kiepal, Carrington and Dawson (n 114) 138.

[118] See, eg, Kiepal, Carrington and Dawson (n 114).

[119] Ibid.

[120] Ibid 137.

[121] The causal relationship between going missing and these lifestyle characteristics is explored in depth in Kiepal, Carrington and Dawson (n 114). See also Boni Robertson and Catherine M Demosthenous, Young Aboriginal Females Reported Missing to Police: ‘Which Way for Prevention and Service’ (Report, December 2004).

[122] Stewart (n 100).

[123] Ibid 398.

[124] Kenna Quinet, ‘The Missing Missing: Toward a Quantification of Serial Murder Victimization in the United States’ (2007) 11(4) Homicide Studies 319, 323.

[125] Ibid.

[126] Thomas DiBiase is a former United States Prosecutor.

[127] DiBase (n 25) xv.

[128] DiBase (n 25).

[129] This was explicitly stated in Burrell Appeal (n 37) [134].

[130] Burrell v R (n 37) [318].

[131] Ibid [6].

[132] Ibid [318].

[133] Burrell Appeal (n 37) [135].

[134] Burrell v R (n 37) [318].

[135] Medicare is the universal health insurance scheme used in Australia to access health and hospital services: Commonwealth of Australia, ‘Medicare’, Australian Government Department of Health (Web Page) <https://www.health.gov.au/health-topics/medicare>.

[136] Burrell v R (n 37) [318]; Burrell Appeal (n 37) [34], [135].

[137] Edwards [No 7] (n 38) [8], [730].

[138] Edwards [No 2] (n 38).

[139] Christine Ham was the mother of a friend of Sarah Spier.

[140] Edwards [No 2] (n 38) [67].

[141] Amanda Spiers was the sister of Sarah Spiers.

[142] Edwards [No 2] (n 38) [72]–[73].

[143] The State of Western Australia v Edwards (n 38) [10]; Edwards [No 7] (n 38) [8], [730].

[144] Edwards [No 7] (n 38) [2358].

[145] Stephen J Morewitz, Clinical and Psychological Perspective on Foul Play (Springer International publishing, 2019) 66–8.

[146] David Finkelhor and Jennifer Dziuba-Leatherman, ‘Victimization of Children’ (1994) 49(3) American Psychologist 173. Victimisation refers to the illegitimate subjection of a person to a detriment as result of an act or omission of another: LexisNexis Legal Dictionary (n 55) ‘victimisation’.

[147] Finkelhor and Dziuba-Leatherman (n 146).

[148] David Finkelhor, ‘The Victimization of Children: A Developmental Perspective’ (1995) 65(2) American Journal of Orthopsychiatry 117, 179–80.

[149] Finkelhor and Dziuba-Leatherman (n 146).

[150] Finkelhor (n 148) 177.

[151] Finkelhor and Dziuba-Leatherman (n 146) 176.

[152] Ibid 177. The issue of autonomy and its comparison to dependant women are noted in Finkelhor (n 148).

[153] Finkelhor (n 148).

[154] R v Keli Lane (n 36) [40].

[155] Lane Appeal (n 36) [244].

[156] Lane Appeal (n 36) [279]–[283].

[157] See, eg, Lane Appeal (n 36).

[158] See, eg, Eyal Zamir, Elisha Harlev and Ilana Ritov, ‘New Evidence About Circumstantial Evidence’ (2017) 41 Law and Psychology Review 107.

[159] Young S Kim, Gregg Barak and Donald E Shelton, ‘Examining the “CSI-Effect’ in the Cases of Circumstantial Evidence and Eyewitness Testimony: Multivariate and Path Analyses’ (2009) 37(5) Journal of Criminal Justice 452.

[160] Kevin Jon Heller, ‘The Cognitive Psychology of Circumstantial Evidence’ [2006] MichLawRw 31; (2006) 105(2) Michigan Law Review 241; Willmarth (n 32).

[161] Zamir, Harlev and Ritov (n 158).

[162] Shephard v The Queen [1990] HCA 56; (1990) 170 CLR 573 (‘Shephard’); Festa v R (2001) 208 CLR 593; Doney (n 75). See Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) 355.

[163] See, eg, De Gruchy v R [2002] HCA 33; (2002) 211 CLR 85 (‘De Gruchy’).

[164] See Karen Ann Montee, 'Sufficiency of Circumstantial Evidence in Nebraska Civil Cases: What is the Test' (1981) 60(3) Nebraska Law Review 636.

[165] Donald L Gaffney, 'Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine' (1977) 55(7) Texas Law Review 1255, 1256.

[166] Annie Cossins is an Associate Professor of Law at the University of New South Wales, Australia.

[167] Annie Cossins, ‘The Legacy of the Makin Case 120 Years On: Legal Fictions, Circular Reasoning and Some Solutions’ [2013] SydLawRw 29; (2013) 35(4) Sydney Law Review 731.

[168] Chris N H Street and Jaume Masip, ‘The Source of the Truth Bias: Heuristic Processing?’ (2015) 56(3) Scandinavian Journal of Psychology 254, 254.

[169] Cossins (n 167) 738.

[170] Ibid 738.

[171] R v Hodge (1838) 168 ER 1136; Gaffney (n 165).

[172] Zamir, Harlev and Ritov (n 158); Heller (n 160).

[173] Zamir, Harlev and Ritov (n 158); Heller (n 160).

[174] Odgers (n 162) 355.

[175] Hughes v The Queen [2017] HCA 20 [16].

[176] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Australian Law Dictionary (n 55) ‘inference’; LexisNexis Legal Dictionary (n 55) ‘inference’.

[177] See R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211.

[178] Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 (‘Chamberlain’); Shephard (n 162); R v Hillier [2007] HCA 13; (2007) 228 CLR 618.

[179] Chamberlain (n 178); Shephard (n 162).

[180] To be considered reasonable the hypothesis must rely on more than mere conjecture: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 (‘Peacock’).

[181] See, eg, Knight v R [1992] HCA 56; (1992) 175 CLR 495; Peacock (n 180); Barca v R [1975] HCA 42; (1975) 133 CLR 82.

[182] Doney (n 75).

[183] Shephard (n 162). For more on the prosecutorial burden of proof see: Paul Ames Fairall, ‘Unravelling the Golden Thread: Woolmington in the High Court of Australia’ 5(2) Bond Law Review 229.

[184] See, eg, Criminal Code 1995 (n 45) s 13.2; Woolmington v DPP [1935] AC 462. This is especially important as it is fundamental principle of the Australian juridical system, specifically in regard to the presumption of innocence afforded to those who stand accused: Lee v The Queen [2014] HCA 20; Momcilovic v The Queen (2011) 245 CLR 1. Also, this does not necessarily require the prosecution to exclude all possible hypotheses in advance, only ones capable of causing reasonable doubt in the mind of the factfinder: Andrew Ligertwood, ‘Can DNA Evidence Alone Convict an Accused?’ [2011] SydLawRw 21; (2011) 33(3) Sydney Law Review 487.

[185] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 (‘Baden-Clay’).

[186] Edwards [No 7] (n 38) [204].

[187] In the Lane case Whealy J noted that ‘the Crown Case is a circumstantial case’: Lane [No 18] (n 36) [4]. In the Burrell case McClellan CJ and Sully and James JJ noted ‘[t]he Crown case against the appellant was entirely circumstantial’: Burrell v R (n 37) [5]. In the Edwards case Hall J noted ‘[i]n this case the prosecution relies upon circumstantial evidence’: Edwards [No 2] (n 38) [162].

[188] The evidence to be examined in this subsection has been extracted from: Burrell v R (n 37); Burrell Appeal (n 37).

[189] Burrell Appeal (n 37) [104].

[190] The Pajero on the CCTV footage was observed as having a dirty rear windscreen. On inspection by the police on 16 May 1997, the Pajero owned by the accused also a dirty rear window: Burrell v R (n 37) [35].

[191] See Burrell v R (n 37).

[192] See Ibid.

[193] Ibid [16].

[194] The evidence to be examined in this subsection has been extracted from: Lane Appeal [2011] (n 36); Lane Appeal [2013] (n 36); Lane [No 13] (n 36).

[195] See Andrew Palmer, ‘Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other “Guilty Behaviour” in the Investigation and Prosecution of Crime’ [1997] MelbULawRw 3; (1997) 21(1) Melbourne University Law Review 95. See also R v Finn [1994] QCA 1.

[196] [1993] HCA 63 (‘Edwards v The Queen’).

[197] Lane Appeal [2011] (n 36) [56].

[198] Edwards v The Queen (n 196).

[199] Palmer (n 195).

[200] Ibid 97.

[201] Ibid 96.

[202] Ibid 113.

[203] Ibid. See, eg, Harris v R (1990) 55 SASR 321.

[204] Virginia Fung was the caseworker with the adoption agency appointed to Lane for the purposes of having her child born May 1999 adopted out.

[205] This was also referred to as the ‘perpetuation’ of the lie: Lane Appeal [2011] (n 36) [77].

[206] Ibid [22].

[207] Edwards [No 7] (n 38) [134].

[208] Ibid.

[209] See, eg, Crimes Act (n 49) s 18(1)(a).

[210] Leonard I Morgenbessen, Ann W Burgess and Mark E Safarik, ‘Motive in a Triple Spree Homicide’ (2008) 3(1) Victims and Offenders 114.

[211] Year Book (1477) 17 Edw IV 1, quoted in Lee Aitken, ‘Interpreting R v Baden-Clay: “Discovering the Inward Intention”, or “what Lies Under the Veil”?’ [2016] UQLawJl 18; (2016) 35(2) University of Queensland Law Journal 301.

[212] De Gruchy (n 163)

[213] Baden-Clay (n 185).

[214] Ibid.

[215] See, eg, Morgenbessen, Burgess and Safarik (n 210).

[216] See Hyam v DPP [1974] UKHL 2; [1975] AC 55 (‘Hyam’).

[217] LexisNexis Legal Dictionary (n 55) ‘motive’; Australian Law Dictionary (n 55) ‘motive’.

[218] See Jeremy Gans, ‘The Case of the Improbable Murder: De Gruchy v R(2002) 24(1) Sydney Law Review 123.

[219] See, eg, HML v The Queen [2008] HCA 16.

[220] This is in line with the use of all circumstantial evidence which requires a guilty verdict only be returned if the only reasonable hypothesis to be drawn from the evidence is inconsistent with the innocence of the accused: Peacock (n 180).

[221] See Richard D Friedman and Roger C Park, ‘Sometimes What Everybody Thinks They Know Is True’ (2003) 27(6) Law and Human Behaviour 629.

[222] Edwards [No 7] (n 38) [134].

[223] Burrell v R (n 37) [152].

[224] Burrell Appeal (n 37).

[225] Ibid [10]–[11].

[226] Ibid [11].

[227] Ibid [13].

[228] Ibid [12]–[14].

[229] Ibid [12].

[230] R v Keli Lane (n 36) [36].

[231] Lane Appeal [2013] (n 36) [111].

[232] Ibid.

[233] Ibid [267]. See also Lane [No 13] (n 36) [11].

[234] It must be noted that this evidence was initially submitted as tendency evidence: Lane Appeal [2013] (n 36). It is acknowledged that tendency evidence may have affected the Lane case, however this form of evidence is beyond the scope of this article.

[235] Ibid [119].

[236] Edwards [No 7] (n 38) [135].

[237] Edwards [No 4] (n 38) [37].

[238] Edwards [No 7] (n 38) [237].

[239] Edwards [No 4] (n 38) [77](h).

[240] Ibid.

[241] Edwards [No 7] (n 38) [127].

[242] Australian Law Dictionary (n 55) ‘propensity evidence’; LexisNexis Legal Dictionary (n 55)

‘propensity evidence’; Edwards [No 7] (n 38) [127]; Evidence Act 1906 (WA) s 31A(1)(definition of ‘propensity evidence’) (‘Evidence Act’).

[243] See, eg, Pfennig v The Queen [1995] HCA 7 (‘Pfennig’).

[244] Australian Law Dictionary (n 55) ‘similar fact evidence’; LexisNexis Legal Dictionary (n 55) ‘similar fact evidence’.

[245] Kenneth J Arenson, 'The Propensity Evidence Conundrum: A Search for Doctrinal Consistency' [2006] UNDAULawRw 4; (2006) 8(1) University of Notre Dame Australia Law Review 31, 31–32. See Edwards [No 7] (n 38) [133].

[246] Arenson (n 245).

[247] Ibid 35; Mirko Bagaric and Kumar Amarasekara, 'The Prejudice against Similar Fact Evidence' (2001) 5(2) International Journal of Evidence and Proof 71, 75. See also Perry v The Queen (1982) 44 ALR 449.

[248] See Sutton v The Queen [1984] HCA 5; 152 CLR 528; David Hamer, 'Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious' [2007] UNSWLawJl 36; (2007) 30(3) University of New South Wales Law Journal 609.

[249] Evidence Act (n 242) s 31A(2).

[250] Edwards [No 7] (n 38) [127].

[251] See Wendy Harris, ‘Propensity Evidence, Similar Facts and the High Court’ [1995] 11 QUT Law Review 97; Arenson (n 245); Bagaric and Amarasekara (n 247); David Hamer, 'The Structure and Strength of the Propensity Inference: Singularity, Linkage and the Other Evidence' [2003] MonashULawRw 7; (2003) 29(1) Monash University Law Review 137.

[252] See Arenson (n 245). See also Ian Barker, ‘Circumstantial Evidence in Criminal Cases’ [2011] (Winter) Bar News: The Journal of the New South Wales Bar Association 32.

[253] Pfennig (n 243); Though Pfenning mainly concerned similar fact evidence, Wendy Harris argues that the decision tends to treat propensity evidence as requiring the same admissibility test: Harris (n 251) 104–5.

[254] Pfennig (n 243).

[255] See Harris (n 251).

[256] Pfennig (n 243).

[257] The term ‘rational’ can be defined here as ‘reasonable’: See, eg, Peacock (n 180).

[258] Pfennig (n 243) [60].

[259] See, eg, Harris (n 251); Harriman v R [1989] HCA 50; (1989) 167 CLR 590.

[260] A E Acorn, 'Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense' (1991) 11(1) Oxford Journal of Legal Studies 63, 65.

[261] Ibid.

[262] The State of Western Australia v Edwards (No 7) [2020] WASC 339 [127].

[263] A E Acorn is a Professor of Law at the University of Alberta.

[264] See Acorn (n 260) 67; Hamer (n 251) 140.

[265] See Bagaric and Amarasekara (n 247).

[266] Edwards [No 7] (n 38) [14].

[267] Edwards [No 7] (n 38) [43].

[268] These are extracted from Edwards [No 7] (n 38) [74].

[269] All three victims were described as being small in stature, with blond hair and a fair complexion aged between 18 and 27: Edwards [No 7] (n 38) [74].

[270] The victims disappeared around the Claremont precinct area and all three offences occurred within a 14-month period: Edwards [No 7] (n 38).

[271] Edwards [No 7] (n 38) [53].

[272] Ibid [54].

[273] Ibid [55].

[274] Ibid [122].

[275] Ibid [59].

[276] Ibid [64].

[277] See, eg, ibid [64].

[278] Australian Law Dictionary (n 55) ‘case theory’; LexisNexis Legal Dictionary (n 55) ‘case theory’. See also Binny Miller, ‘Give Them Back Their Lives: Recognizing Client Narrative in Case Theory’ (1994) 93(3) Michigan Law Review 485 (‘Give Them Back Their Lives’); Kimberly A Thomas, ‘Sentencing: Where Case Theory and the Client Meet’ (2008) 15(1) Clinical Law Review 187.

[279] See, eg, Burrell v R (n 37) [145].

[280] See, eg, Heller who posits that an item of circumstantial evidence cannot ‘stand or fall’ on its own: Heller (n 160) 279.

[281] Edwards [No 7] (n 38) [90].

[282] Burrell Appeal (n 37) [108].

[283] See eg, Binny Miller, ‘Teaching Case Theory’ (2002) 9(1) Clinical Law Review 293 (‘Teaching Case Theory’).

[284] See Ibid; Phil Meyer, ‘Why a Jury Trial Is More Like a Movie Than a Novel’ (2001) 28(1) Journal of Law and Society 133; Kate Rossmanith, ‘The Problem of Story: Criminal Evidence, Affect, and Sense-Making’ (2020) 17(4) Life Writing 503. According to Taylor this has increased in the recent years: Rebecca Taylor, ‘Integrating Legal Theory and Technique in the Reporting Class Curriculum’ (2014) 4(2) Teaching Journalism and Mass Communication 1.

[285] Jane B Baron and Julia Epstein, ‘Is Law Narrative?’ (1997) 45(1) Buffalo Law Review 141, 147.

[286] See Miller, ‘Give Them Back Their Lives’ (n 278).

[287] See Lance W Bennett, ‘Rhetorical Transformation of Evidence in Criminal Trials: Creating Grounds for Legal Judgement’ (1979) 65(3) Quarterly Journal of Speech 311 (‘Rhetorical Transformation of Evidence’); Lisa Sarmas, ‘Storytelling and the Law: A Case Study of Louth v Diprose[1994] MelbULawRw 8; (1994) 19(3) Melbourne University Law Review 701; Laurie C Kadoch, ‘Seduced by Narrative: Persuasion in the Courtroom’ (2000) 49(1) Drake Law Review 71; Nancy Pennington and Reid Hastie, ‘A Cognitive Theory of Juror Decision Making: The Story Model’ (1991) 13(2–3) Cardoza Law Review 519; Vicki L Smith, ‘Prototypes in the Courtroom: Lay Representations of Legal Concepts’ (1991) 61(6) Journal of Personality and Social Psychology 857; Givelber and Farrell (n 85).

[288] Lisa Kern Griffin, ‘Narrative, Truth, and Trial’ (2013) 101(3) Georgetown Law Journal 281.

[289] Ibid.

[290] Ibid.

[291] Lance W Bennett, ‘Storytelling in Criminal Trials: A Model of Social Judgement’ (1978) 64(1) Quarterly Journal of Speech 1, 19 (‘Storytelling in Criminal Trials’). See also Richard L Wiener et al, ‘The Psychology of Telling Murder Stories: Do We Think in Scripts, Exemplars, or Prototypes?’ (2002) 20(1– 2) Behavioral Sciences and the Law 119.

[292] Griffin (n 289) 307.

[293] Ibid.

[294] Peter Heerey, ‘Truth, Lies and Stereotype: Stories of Mary and Louis’ [1996] NewcLawRw 2; (1996) 1(3) Newcastle Law Review 1, 29–30.

[295] See Griffin (n 289).

[296] Lisa Kern Griffin is a Professor of Law at Duke University.

[297] Griffin (n 289) 310.

[298] For a more detailed look at heuristic processing see Cossins (n 167).

[299] See ibid.

[300] Kimberly YW Holst, ‘Non-Traditional Narrative Techniques and Effective Client Advocacy’ (2014) 48(2) Law Teacher 166, 168.

[301] Ibid.

[302] See Susan Bandes, ‘Empathy, Narrative, and Victim Impact Statements’ (1996) 63(2) University of Chicago Law Review 361; Holst (n 300); Philip N Meyer and Catlin A Davis, ‘Law Students Go to the Movies II: Using Clips from Classic Hollywood Movies to Teach Criminal Law and Legal Storytelling to First-Year Law Students’ (2018) 68(1) Journal of Legal Education 37.

[303] Corinna Kruse, ‘Legal Storytelling in Pre-Trial Investigations: Arguing for a Wider Perspective on Forensic Evidence’ (2012) 31(3) New Genetics and Society 299; Meyer (n 284).

[304] Meyer (n 284).

[305] Miller, ‘Teaching Case Theory’ (n 283) 305. See also Kruse (n 303).

[306] Kruse (n 303) 301. See also Jackson and Doran (n 77).

[307] See Floris Bex and Bart Verheij, ‘Legal Stories and the Process of Proof’ (2013) 21(3) Artifical Intelligence and Law 253.

[308] Corinna Kruse is a senior lecturer at the Linköping University, Sweden.

[309] Kruse (n 303).

[310] Ibid 301–2.

[311] Ibid 301.

[312] See Bennett, ‘Rhetorical Transformation of Evidence’ (n 287)

[313] See Pennington and Hastie (n 287).

[314] See Ibid. Griffin (n 289).

[315] Griffin (n 289).

[316] Miller, ‘Teaching Case Theory’ (n 283) 295.

[317] See Richard A Posner, ‘Legal Narratology’ (1997) 64(2) University of Chicago Law Review 737.

[318] Miller, ‘Teaching Case Theory’ (n 283) 298.

[319] See, eg, Rae Kaspiew, ‘Rape Lore: Legal Narrative and Sexual Violence’ (1995) 20(2) Melbourne University Law 350.

[320] Bex (n 307) 257.

[321] Kadoch (n 287); Heerey (n 294).

[322] See Meyer (n 284).

[323] Ibid.

[324] Ibid.

[325] See Steven Cammiss, ‘Law as Narrative: Narrative Interpretation and Appropriation as an Element of Theft’ (2019) 40(1) Statute Law Review 25.

[326] Ibid.

[327] Pennington and Hastie (n 287).

[328] See ibid; Cammiss (n 325).

[329] At the time of publication, both Nancy Pennington and Reid Hastie were researchers affiliated with the University of Colorado: Pennington and Hastie (n 287).

[330] Ibid.

[331] See Miller, ‘Give Them Back Their Lives’ (n 278).

[332] Binny Miller is a Professor of Law at The American University, Washington College of Law.

[333] Miller, ‘Give Them Back Their Lives’ (n 278) 499.

[334] Miller, ‘Give Them Back Their Lives’ (n 278).

[335] Lane Appeal [2011] (n 36) 157 [42].

[336] Lane [No 13] (n 36) [11].

[337] See, eg, R v Keli Lane (n 36) [36].

[338] Lane [No 13] (n 36) [13].

[339] This is extracted from ibid [18].

[340] Lane [No 18] (n 36) [5].

[341] Lane [No 13] (n 36) [107].

[342] See, eg, ibid [44].

[343] Lane [No 24] (n 36) [8].

[344] Lane [No 13] (n 36) [107].

[345] Burrell Appeal (n 37) [167].

[346] Ibid [7].

[347] Ibid [104].

[348] See, eg, Morgenbessen, Burgess and Safarik (n 210); Hyam (n 216).

[349] Burrell Appeal (n 37) [115].

[350] Burrell v R (n 37) [105]. The suggested interpretation can be found at [105].

[351] Burrell Appeal (n 37) [134].

[352] Ibid [76].

[353] Ibid [122].

[354] Burrell v R (n 37) [28].

[355] Ibid.

[356] It is instructive to note that the Appellant did sustain a back injury following a fall while unloading hay in 1982 or 1983; this could have led to ongoing back pain: Burrell Appeal (n 37) [77].

[357] See ibid.

[358] Ibid [176].

[359] Ibid [172].

[360] Edwards [No 7] (n 38) [43].

[361] Ibid [44]

[362] This established the physical elements of the murder. It is instructive to note that the first two offences were held to be irrelevant to this theory. They could, however, add weight to the tendency of the accused attacking unfamiliar women: Ibid [536].

[363] See, eg, Ibid [64].

[364] Ibid [631].

[365] Ibid.

[366] Ibid.

[367] Ibid.

[368] Ibid 339 [134].

[369] See Janice Nadler and Mary-Hunter McDonnell, ‘Moral Character, Motive, and the Psychology of Blame’ (2012) 97(2) Cornell Law Review 255.

[370] Ibid 258. For more on assessing blame, motives, and mental states see: Janice Nadler, ‘Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame’ (2012) 75(2) Law and Contemporary Problems 1.

[371] Edwards [No 7] (n 38) [541].

[372] Ibid.

[373] Ibid.

[374] Ibid [548].

[375] Ibid [2338].

[376] Ibid [2360].

[377] Ibid.

[378] Ibid [2361].

[379] Ibid.

[380] Ibid [2370].

[381] See, eg, Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2nd ed, 2014) 76.

[382] Lane [No 18] (n 36) [8].


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