Hi Scip
I think you are missing my point of what the jury did not know at the time of trial, regarding the forensic evidence of the windows. The whole saga of the windows was one the grounds for the 2002 appeal. It was classed as new evidence.
The 2002 appeal didn't involve any new evidence concerning the kitchen window. It concerned alleged new evidence concerning the bathroom window.
The defense claimed that Barlow's statements made prior to trial didn't reveal he had looked at any windows on 8/22/85 other than the kitchen window which he found could be locked from the outside.
Subsequent to the trial (during the course of the COLP investigation) Barlow wrote in a statement that he looked at all the windows not just the kitchen window and noted the other windows were mostly sash type windows that could be unlocked from the outside but not locked.
The defense argued that had they been on notice that he looked at all the windows on that date then they would have argued that since he failed to note seeing any marks on the bathroom window that they would have questioned him about such.
The Court held that whether the marks were there before or after the murders makes no difference, the defendant admitted that he unlocked that window among other prior to the murders to enter the house and thus the marks had no significant impact on the issue. All that matters was whether he could get in there was no need to establish precisely which door or window he used to enter.
"The prosecution had established conclusively and without challenge the appellant's ability to enter and leave the White House Farm when it was apparently secure from his own answers. Julie Mugford confirmed the fact.
The Crown did not have the burden of proving by which window and by which mechanism the entry was made. The Crown proved capacity both to enter and leave. There was no issue. As the trial Judge said (at page 10E):
"… how he got there and out again whether by the kitchen window or any other means, though of interest, cannot affect the outcome of the case"
The only way in which the window evidence could have been of importance in the jury's decision is if despite other evidence pointing to the appellant as the killer, they might have been prevented from reaching that conclusion by doubting that he could have got in and out on the night in question with the windows being found next day in the condition in which they were found.
On the appellant's own admissions, no such doubt could arise. It follows that any failure to disclose earlier examination of windows cannot affect the safety of this conviction."
