Clay v The State of Western Australia
[2023] WASCA 77
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CLAY -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 77
CORAM: MAZZA JA
BEECH JA
HALL JA
HEARD: 1 FEBRUARY 2023
DELIVERED : 16 MAY 2023
FILE NO/S: CACR 199 of 2021
BETWEEN: COOPER CLAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: CACR 199 of 2021
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: McGRATH J
File Number : INS 97 of 2019
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of manslaughter - Where DNA evidence of stains on appellant's shoes relied on to prove he was a participant in assault on deceased - Where expert witness allowed for possibility that DNA could have biological source other than blood - Whether expert evidence inadmissible because there was no foundation for an opinion as to likelihood of blood being source of DNA rather than being from trace DNA or contamination - Whether expert advanced any such opinion - Whether verdict unreasonable or cannot be supported by evidence - Whether evidence as a whole supported conclusion that stains on appellant's shoes were blood - Whether this evidence together with that of co‑offender supported verdict
Legislation:
Nil
Result:
Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms K Kumar |
| Respondent | : | Mr B Murray |
Solicitors:
| Appellant | : | Kaminni Kumar |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Wark v The State of Western Australia [2023] WASCA 66
JUDGMENT OF THE COURT:
The appellant was charged with murder. After a trial he was acquitted of murder but convicted of the alternative offence of manslaughter contrary to s 280 of the Criminal Code (WA). He seeks leave to appeal against that conviction. An appeal against sentence was abandoned at the hearing of the appeal.
The appeal notice was filed eight days after the last date for appealing and an extension is required. The delay is relatively short and an explanation for it has been provided. An extension should be granted.
There are two grounds of appeal. The first ground is that the learned trial judge erred in law in admitting expert evidence regarding DNA. It is contended that a proper scientific foundation for the evidence was not established. The second ground is that the verdict of the jury was unreasonable or unsupported by the evidence.
For the reasons that follow we would refuse leave to appeal on both grounds and dismiss the appeal.
Prosecution case
In February 2019 the appellant was an inmate at Hakea prison. His cell was in Unit 9. That unit had cells on the ground floor and cells on the first floor, the two floors being connected by stairs. Alf Deon Eades was also an inmate at the prison. He was in the same unit, but in a different cell.[1]
[1] ts 911.
The prosecution case was that on the afternoon of 26 February 2019 Mr Eades was alone in his cell eating his dinner. Six men, including the appellant, entered the cell without warning. Some of the men were wearing T-shirts wrapped around their faces and gloves on their hands. The attack was planned to take place at dinnertime when prison officers would be occupied supervising inmates and other inmates would be having their dinner and be less likely to intervene.[2]
[2] ts 914.
The men attacked Mr Eades by kicking and punching him. There were multiple kicks and punches, predominantly to the head. During the assault Mr Eades fell to the floor of the cell and bled from the wounds inflicted on him. He later died as a result of his injuries.[3]
[3] ts 916.
The cell was small, being 5.4 m by 3.8 m in dimensions. It contained bunk beds, bookshelves and a chair. Mr Eades was seated on the chair when he was first attacked.[4]
[4] ts 914.
One of the co‑offenders pleaded guilty to manslaughter prior to the trial and agreed to testify against the others. He will be referred to in these reasons as B. The prosecution case against the appellant and the other men relied heavily on B's evidence, which the prosecutor foreshadowed would be to the following effect.
According to B, he was approached early in the afternoon of 26 February 2019 in his cell by Brandon Taylor and the appellant. Mr Taylor said that B and his cell-mate, Shaun Kapene, had to assault 'someone downstairs', who was referred to as a rapist, in order to earn their 'spot in this wing'. If they did not do what they were told then what was to happen to the man downstairs would happen to them. Later that afternoon Mr Taylor returned to B's cell and provided a pair of blue gloves to each of B and Mr Kapene. Such gloves are available within the prison for hygiene purposes, such as when working in the kitchen.[5]
[5] ts 915.
Later, when B was having his dinner in the dining area of Unit 9, the appellant approached him and said that he would show him who the rapist was when he came for dinner. When Mr Eades came to the dining area to collect his dinner the appellant pointed him out to B. B had never met Mr Eades before and did not know him. Mr Eades' cell was on the ground floor (A wing), whereas B had a cell on the first floor (B wing). The dining area was situated in a mezzanine section between the two floors.[6]
[6] ts 915 - 916.
Later, when B was washing his plate, he saw Mr Taylor, the appellant, Clinton Penny, Mr Kapene and Liam McGlade go down the stairs leading to A wing and separate into two groups. Both groups went into empty cells on A wing, where they put on gloves and wrapped T-shirts or tea towels over their faces. B joined them and there was a discussion about bashing Mr Eades.[7]
[7] ts 915 - 916.
The six men then went to Mr Eades' cell. Mr Taylor entered first, followed by the appellant, Mr Penny and Mr McGlade, and then B and Mr Kapene. The assailants were all physically fit men in their 20s, whereas Mr Eades was in his late 40s.[8]
[8] ts 916.
According to B, the appellant was one of the principal assailants, punching Mr Eades and kicking him to the head when he was on the ground. At one stage the appellant grabbed on to the shelves near the bunk bed and did what was described as a double jump on to Mr Eades' head. B also provided an account of the actions of the other men and admitted to punching Mr Eades himself. The attack was over within minutes and the men dispersed. Other inmates became aware of what had occurred, and an emergency alarm was activated.[9]
[9] ts 916 - 917.
Prison officers attended Mr Eades' cell and called for medical assistance. A prison doctor and a nurse attended, by which time there was 'a lot of blood' coming from Mr Eades, in particular from his face. The nurse and others mopped up some of the blood with towels. An ambulance was called and arrived about 10 minutes later. Mr Eades died in hospital on 11 March 2019.[10]
[10] ts 917 - 919.
Following the attack the other inmates in Unit 9 were placed in lockdown in their cells for about two days. Police attended and conducted an investigation, including searching the cells. A pair of shoes was seized from the cell occupied by the appellant. The prosecution case was that these shoes were worn by the appellant at the time of the attack on Mr Eades. The shoes were examined for bloodstaining. A red stain on the right shoe tested positive to a presumptive test for blood. A swab from the area of that stain produced a DNA profile that matched that of Mr Eades.[11]
[11] ts 926 - 927.
In his opening address the prosecutor described the significance of the staining on the shoe in the following terms:[12]
On the right shoe, notionally where the laces of the shoe are, a red stain was seen and located and photographed. That stain was analysed by Dr Fiona Baxter of the PathWest Health Laboratory and Dr Baxter will give detailed evidence of a number of tests that she conducted in this trial.
She tested it and found it was, as she will refer to, presumptively positive for blood. She then tested it for the presence of DNA and Dr Baxter will give evidence that a DNA profile - and you'll hear a good deal of evidence about something you've probably heard about before, what DNA is, from Dr Baxter, how it's transmitted, the surfaces it can be left on - a DNA profile within what the State alleges was blood on the shoes taken from the accused Cooper Clay was matched to the DNA profile of Mr Eades.
Senior Constable Outred, an expert in the examination and interpretation of blood patterns, will give evidence that in order for that bloodstain to have gotten where it was found, the blood must have been liquid and airborne at the time it was deposited. And you've already heard me say that Mr Eades lost quite a bit of blood immediately following this attack on him.
So what the State alleges is that Dr Baxter conducted a presumptive test for blood and the DNA came within what the State will allege was blood on the shoe and the State will invite you to draw the conclusion that the red stain on the shoe as viewed by Senior Constable Outred and analysed by Dr Baxter is, indeed, blood, and the presence of a single source profile on that particular shoe is evidence that the shoe came from contact with Mr Eades .
[12] ts 927.
A stain on a shoe alleged to belong to Mr Penny produced similar results. The State case was that the results of the analysis of the stains on both the appellant's and Mr Penny's shoes were evidence that supported the evidence of B that the appellant and Mr Penny were involved in the attack on Mr Eades.[13]
[13] ts 928.
The appellant, Mr Taylor, Mr Penny, Mr Kapene and Mr McGlade were jointly charged with murder. The State case was that liability for murder could arise in two alternative ways. First, that when each man punched, kicked or jumped on Mr Eades, he either significantly contributed to his death or enabled or aided others to kill Mr Eades. Second, that all of the men formed a common intention to prosecute an unlawful purpose, namely to seriously assault Mr Eades with the intention of causing serious injury, that in the prosecution of that unlawful purpose Mr Eades was murdered and that such murder was a probable consequence of the prosecution of that unlawful purpose.[14]
[14] ts 923 - 924.
The appellant, Mr Taylor, Mr Penny and Mr Kapene were each found not guilty of murder, but guilty of manslaughter. Mr McGlade was acquitted.[15]
[15] ts 3315.
Defence case
It was not in issue at the trial that the deceased had died as a result of injuries inflicted on him in the course of an assault and that the killing was unlawful. The appellant's defence was that the jury could not be satisfied beyond reasonable doubt that he was a participant in the assault.[16]
[16] ts 948.
Insofar as the prosecution relied on B, the appellant's case was that B disliked the appellant and therefore had a motive to lie about the appellant's involvement in the attack on Mr Eades. Further, it was said that B was an inconsistent, untruthful and unreliable witness.[17]
[17] ts 947.
As regards the forensic evidence, the defence case was that the forensic testing was done under difficult circumstances and that the police ran out of time and did some of the testing at the police station. It was suggested that the forensic tests were compromised and unreliable, though no details were given in the opening address.[18]
[18] ts 948.
Grounds of appeal
The grounds of appeal are as follows:
(1)The trial judge erred in law when he permitted the respondent to adduce the opinion evidence of a forensic expert in circumstances where the scientific foundation for their opinion expressed was inadequate.
(2)The verdict was unreasonable or unsupported by all of the evidence.
There are lengthy particulars to each of the grounds. The particulars to ground 1 identify the evidence in question as that of Dr Fiona Baxter. Dr Baxter is a forensic scientist who gave evidence of the results of DNA analysis of swabs taken by police officers from, amongst other things, the appellant's shoes. At the trial an application was made to exclude Dr Baxter's evidence. A voir dire was conducted, at the conclusion of which the trial judge ruled that the evidence was admissible.[19]
[19] WAB 10.
Whilst Dr Baxter gave evidence that the DNA found on the appellant's shoes could have come from blood, she could not exclude the possibility that it was 'trace' DNA (that is, DNA present in the environment of the prison by virtue of Mr Eades living there). Nor could she exclude the possibility of contamination. The essential contention of the appellant is that it was not possible to conclude on the testing undertaken that the source of the DNA was blood. It is submitted that Dr Baxter's opinion that the DNA results were consistent with blood, but that other explanations for the DNA were possible, did not have a 'scientific foundation' and was inadmissible.[20]
[20] WAB 10 - 11.
The particulars of ground 2 focus on the issue of whether or not the appellant was a participant in the assault. In this regard the principal evidence against the appellant consisted of the evidence of B, the expert opinion evidence of Dr Baxter regarding the DNA, and the expert opinion evidence of a blood pattern analyst, Senior Constable Katherine Outred. The appellant contends that the blood pattern evidence was minimal and unreliable and that the opinion of Dr Baxter was marred by the issues of contamination referred to in respect of ground 1. For these reasons it is suggested that the expert evidence did not provide any meaningful support for the testimony of B. It is said that B was self‑interested and his evidence was not credible or reliable. In these circumstances it is said that the jury should have entertained a reasonable doubt about the participation of the appellant in the assault.[21]
[21] WAB 12 - 13.
Ground 1 - the evidence of Dr Baxter on the voir dire
For the purposes of ground 1 it is relevant to consider the evidence that Dr Baxter gave on the voir dire. It is on the basis of that evidence that the learned trial judge made the ruling that the evidence was admissible.
Dr Baxter is a forensic scientist. There was no challenge to her qualifications as an expert. We will refer to those qualifications briefly. Dr Baxter holds a Bachelor of Science with first class honours and a PhD from Curtin University. She was employed as a post‑doctoral research scientist at the Department of Pathology at the Royal Perth Hospital from 2001 to 2003 and then at the University of Cambridge from 2003 to 2007. She has been employed as a forensic DNA scientist at PathWest since returning to Perth in October 2007. She has over 20 years of experience working in the field of DNA technology. In particular, she has 13 years' experience in interpreting, reporting and reviewing DNA profiles.[22]
[22] ts 1976 - 1977.
Dr Baxter said that whilst DNA is found in blood, skin and saliva, bodily fluids like blood are rich sources of DNA from which it is more likely to recover a DNA profile.[23]
[23] ts 1977.
Dr Baxter said that when analysing swabs she also has available a presumptive test to identify the possible presence of blood. That test is the Kastle‑Meyer (K-M) test. She said that this test does not confirm the presence of human blood. It also reacts to blood from other animal species and to some plants, vegetables, copper salts and metals. In the presence of blood or a blood-like substance it produces a pink colour change indicating the possible presence of blood.[24]
[24] ts 1977 - 1978.
A DNA profile may also be obtained from a swab. If a DNA profile is obtained, a likelihood ratio is calculated to give significance to the findings. A likelihood ratio is the comparison of two alternative hypotheses. The first is that a known individual was the donor of a single source DNA profile or a contributor to a mixed DNA profile. The second is that a known individual was not the donor of the single source DNA profile or is not a contributor to the mixed DNA profile, but rather the DNA profile originated from an unknown individual or individuals selected at random from the population. A statistical evaluation is undertaken to determine which of these two propositions is more likely to explain the DNA results.[25]
[25] ts 1978.
Relevantly, Dr Baxter received swabs from the police that were labelled 'SPE18' and 'SPE22'. SPE18 was a swab from a left shoe seized from the appellant's cell and alleged to have been used by him. SPE22 was a swab from the appellant's right shoe. Both swabs gave a positive reaction to the K-M presumptive test for blood.[26]
[26] Exhibit 2 (voir dire).
SPE18 was submitted for DNA testing and produced a mixed profile. A contributor to this mixture, amounting to approximately 99% of the DNA, matched the deceased's reference DNA profile. The mixed profile was more than 100 billion times more likely to be obtained if Mr Eades and an unknown individual were contributors than if it came entirely from unknown and unrelated individuals.[27]
[27] Exhibit 2 (voir dire).
SPE22 was submitted for DNA testing and produced a single source profile matching that of the deceased. That outcome was assessed as being 100 billion times more likely if Mr Eades was the donor of the DNA than if some other unknown and unrelated person was the donor.[28]
[28] Exhibit 2 (voir dire).
The likelihood ratios are made on the basis of the DNA results and are not affected by whether the source of the DNA is from blood or some other cellular material. The likelihood ratios do not identify the biological source of the DNA (that is, what type of cell they are from), nor do they identify the mechanism by which the DNA came to be present on an item.[29]
[29] ts 1984 - 1985.
It was suggested to Dr Baxter in cross-examination by counsel for Mr Penny that the meal served to prisoners that day, spaghetti bolognese, could have caused a stain that would react positively to the presumptive test for blood. She said that this would depend on the nature and colour of the ingredients. She also said that she would not expect to recover a human DNA profile from a meat meal such as spaghetti bolognese unless it contained human biological material. She did, however, accept that it was possible that a swab could pick up DNA present from the surface underneath the stain.[30]
[30] ts 1987.
Counsel for Mr Penny then asked:[31]
So if there was touch DNA, DNA from, say, human skin cells, to the extent that they pass on DNA, to what extent might that be capable of being picked up in a stain swab if it's already on the surface?---It would depend on the vigorousness of which the swab was applied to the surface to collect any potential trace DNA sources underneath a - a - what we're calling a spaghetti bolognese stain.
So how would we measure for that possibility or potentiality in the circumstances of this case? How would we measure for that uncertainty?---As I - we can't determine the biological source of the DNA profile. Even if we had done HemaTrace testing I still could not definitively say that the DNA profile had come from human blood.
[31] ts 1987.
Dr Baxter explained that HemaTrace was another test for blood, but that it was not used as a confirmatory test as it also produces false positive reactions, including to some animal blood and citric acid. She said that HemaTrace could indicate the possible presence of human blood but 'again, I cannot attribute a DNA profile to an exact biological source'. When asked when it might be worthwhile using a HemaTrace test, Dr Baxter said:[32]
In our laboratory if we have a stain that has the visual appearance of blood - - -
Yes?--- - - - gives us a positive presumptive reaction with a Kastle‑Meyer test - - -
Yes?--- - - - and we have a human DNA profile, these three factors in combination are consistent with a blood source of DNA being present, but I can't exclude the possibility of other biological sources of DNA also being present.
So the highest one can go without more is that it's consistent with blood, correct?---Correct.
And in terms of probabilities, in your study of the field, what is the - what are the probabilities concerning a sample that's K-M positive turning out to be human blood, or aren't you able to say?---I can't comment on that, no.
[32] ts 1987 - 1988.
Dr Baxter maintained her position in respect of the possible biological source of DNA in regard to other samples. For example, in respect of swab MSE33 she said 'I can never definitively say what the biological source of a DNA profile is' and 'I can't determine with any certainty the biological source of any DNA profile we recover'. In respect of swab MSE32 she said that the findings were consistent with a blood source but that she could not 'definitively say the DNA has come from the K‑M positive stain, which may be blood' and 'I cannot determine definitively the biological source of a DNA profile'. Asked by the trial judge whether that would be so in every case, Dr Baxter said 'Yes, it would, your Honour'.[33]
[33] ts 1992 - 1994.
Dr Baxter said that it was not possible for her to determine whether a swab had collected DNA from a stain or DNA that was under the surface of the stain. She said that in recent years forensic scientists had moved away from excising bloodstains due to the possibility of collecting material underneath the stain. There had been a move to swabbing in order to limit the collection of material under the stain.[34]
[34] ts 1998.
Dr Baxter said that, though the police may describe a swab as coming from a bloodstain, no assumptions were made as to the biological source when undertaking DNA testing. She then said:[35]
It cannot be assumed?---I can't determine the biological sources of the material within a mixed DNA profile nor whether that material has come from a stain or the DNA that may be present underneath a stain.
All right. So when it comes to being able for - for us to be able to determine whether or not a particular stain in this case is in fact human blood, we don't really have any studies or probabilities, do we, to assist us in the literature?---There are - there are different levels of propositions within likelihood ratio so there's a hierarchy. In our laboratory we work out the sub-source level so our likelihood ratios do not determine the biological source of the DNA or the way that it came to be on the surface or the offence that led to that DNA being deposited. There is a recent use of what's called evaluative reporting or activity level reporting where within this the propositions considered are both - sorry, are altogether the profile, the biological source and the activity by which it came to be there. But this is not reported in my report and it is not a method of reporting likelihood ratios that we use at PathWest.
[35] ts 1999 - 2000.
Dr Baxter was then asked about the possibility of transference, in particular whether dried blood could be transferred from one surface to another. She said that it was possible for dried blood to be transferred but that wet blood was more likely to be transferred. She said that the possibility of transference needed to take into account the duration of any contact, the nature of the surfaces and the degree of pressure of any contact. She was then asked:[36]
So in this case if there's some prospect of a number of persons with footwear walking through an area that has been stained with blood, do we know how to measure the possibility of DNA from that blood being transferred to footwear?---If it's wet the transfer would be more likely than if it's dry.
That's the best we can say. What about if it's dry? Any studies that give us an idea of how likely it is that DNA might be transferred or just the general factors?---Just generally speaking I can speak to the factors.
Yes, all right. And obviously - I mean, it's trite, you would agree, that the - the more dried blood there was about the place and the more people who have stepped on dried blood the greater the likelihood of DNA being transferred to footwear from the dried blood, is that correct?---No, I'd say it would be more likely if we're talking with a wet blood source than a dry blood source.
Yes, I'm - I'm actually looking at dried bloodstains?---It's possible but, again, I would have to consider the other factors involved in a transfer event.
Yes. But you yourself are not aware of any specific studies that cover that point of dry blood on to footwear?---Not off the top of my head, no.
No. All right. Possible, you don't know how likely?---With regards to any DNA transfer event, possible but I can't say how likely without consideration of the factors and even then I still would not be able to say it - - -
Yes?---The likelihood of it.
[36] ts 2001 - 2002.
Dr Baxter said that dry blood would appear as flakes on top of a surface, whereas wet blood would soak into an absorbent surface. She had no information as to the appearance of the stains in this case as the swabs were taken by the police. She accepted that she could not test for the possibility of transference of dry blood, she could only comment on scenarios and the factors affecting them.[37]
[37] ts 2003.
It was put to Dr Baxter that one swab associated with Mr Penny had tested negative for the K-M presumptive test for blood but had produced a DNA result that matched the DNA of Mr Eades. It was suggested that this result and the quantity of DNA involved suggested that the DNA could have been trace DNA of Mr Eades:[38]
Yes. Now, in the event that given the evidence of it being run as a two person mix that - if Mr Eades' DNA is present in this mixture, it's an if, given the likelihood ration of I think six billion that would necessarily be DNA present at trace levels, wouldn't it?---I can't comment on the biological source of the DNA profile.
Of course. But if it was Mr Eades' DNA, if it was, the levels at which it was present in the mix would be within the definition of trace DNA, is that correct?---Trace DNA is DNA that is not attributable to a body fluid.
All right. So would this - indeed Mr Eades' DNA in this be attributable to a body fluid?---We have a K-M negative finding but there are reasons other than the stain not being blood that may give us a K-M negative finding.
Well, in the event that there is the K-M negative result and the reason for that is that it can't be presumed to be blood, can it?---No, it cannot.
So in the event that it wasn't blood and Mr Eades' DNA was present then that will be an example of - well, trace DNA being present in some?---There - there may be other body fluids present that we just can't see, so it may be - - -
All right?--- - - - other body fluids or it may be trace or it may even be a combination of those.
[38] ts 2011.
In cross‑examination by counsel for the appellant Dr Baxter accepted that trace DNA would provide limited assistance to the investigation. She accepted that it was possible that a swab could pick up trace DNA. Counsel then put to Dr Baxter that the DNA that matched the profile of Mr Eades could have been trace DNA as opposed to being from the blood of Mr Eades:[39]
[39] ts 2014 - 2015.
Well, you've got one theory which is the DNA of Mr Eades is located within blood?--- It's a possibility.
Yes. And you've agreed also that the same swab that turned up the DNA of Mr Eades could have picked up trace DNA?--- Yes, that's possible.
So - - -?---From Mr Eades, sorry.
So isn't it the case that its usefulness is limited because you - we have no idea of the broadness of occurrence of trace DNA belonging to Mr Eades throughout the prison that you can't balance or give a weight between a theory that the DNA was located in the blood as opposed to the DNA being located as trace?---The findings in the report with respect to possible bloodstains would be consistent with a blood-like source of DNA. I can't definitively say it is DNA. It is blood though.
Yes. But - and we have no idea as to the value to attribute to the occurrence of Mr Eades' DNA throughout the prison?---I can't comment on to the presence of Mr Eades' DNA throughout the prison.
No. Wouldn't that be required if you were to balance the two theories between each other?---Whose theories?
Well, the theory that the DNA got there through blood as opposed to the DNA got there through trace?---The DNA profile does not tell me how the DNA came to be there.
If you had have - if there had have been trace testing done of every prisoners' shoes, that is, the whole of the shoe for trace DNA, would you be in a better position to be able to determine the likelihood of one theory that I've spoken of being true as opposed to the other?---The likelihood ratios we report do not tell us the biological source of the DNA.
In any event, trace DNA wasn't - testing wasn't done because of the environment within which the item's located, i.e., a prison?---We did do some trace sampling with regards to the shoes but it - it was my understanding from the information I received that the police were not targeting trace DNA in their examinations. (emphasis added)
It was put to Dr Baxter that no control testing had been done in order to determine the level at which trace DNA of Mr Eades could have been present within Unit 9, as result, for example, of co-mingling of laundry:[40]
Well, you've mentioned it could have got there by comingling, et cetera, et cetera, there's been no control testing done in order to determine the level of presence of DNA through comingling?---Even with control samples I still can't say that the DNA came to present on the shoes through the act of wearing them.
But it would assist in the process of weighing things up, wouldn't it?---Sorry, I - I - I can't - of -again, I couldn't say how the DNA came to be present on the shoes, whether it was from the potential trace DNA in the environment, external environment, or through the act of wearing the shoes. Even if someone had worn the shoes they may not necessarily leave behind their DNA.
[40] ts 2015 - 2016.
Dr Baxter was asked whether the circumstances in which the samples were taken were relevant to her assessment:[41]
You'd agree, wouldn't you, that it's fundamental to have an understanding of what occurred before the exhibit is in your laboratory and being worked on?---Information regarding?
The handling of that item?---I can only speak to what has happened to the exhibit when we receive it in the laboratory until after it leaves the laboratory.
But you do take into account, don't you, contextual information about how the exhibit was handled from when police first collect it to when it ends up on your workbench in the laboratory?---I have had no - received no contextual information prior to discussions with yourself and Mr Davies.
All right. And does that contextual information that you received in those discussions affect anything in your reports?---As per my additional witness statements it did not.
And why is that?---Given the information from yourselves it was apparent that possible bloodstaining had been targeted by the police and that trace sampling was not - so the - the manner in which they collected the exhibits was not to assist with potential trace DNA sampling.
And - and your report's not about trace DNA, it's about what - - -?---My report is about DNA. Regardless of whether it's trace or attributable to a body fluid, it is simply the reporting of the examinations and testings and the resultant DNA profiles and the likelihood ratios in respect to the DNA profile alone.
[41] ts 2016 - 2017.
Ground 1 - the evidence of Dr McDonald on the voir dire
Mr Penny also called Dr Brian McDonald on the voir dire. Dr McDonald is a molecular geneticist and DNA consultant. He was not cross-examined by counsel for the appellant, though the appellant relied on the evidence that he gave. It is not necessary for the purposes of this appeal to refer to Dr McDonald's evidence in detail.
Dr McDonald said that where there had been a positive presumptive test for blood but no confirmatory test, an inference that the DNA was derived from blood could not be drawn unless other substances that can cause a positive result can be excluded. He suggested that one possible alternative was cooked meat. He said that no control testing had been undertaken of the food served at the prison. He also suggested that management of the crime scene had not been optimal and had not excluded 'the availability of blood to transfer outside the cell'. In his view it was possible that DNA from blood had been transported into common areas of Unit 9 on the footwear of those people who attended the cell.[42]
[42] ts 2033 - 2034.
As regards trace DNA, Dr McDonald said that the distribution of trace DNA was unknown. He said that the fact that a swab produces a positive presumptive test for blood does not reveal whether the DNA on that swab was from blood. That was an assumption that did not need to be made in order to explain the results. He said that he would not dispute that the DNA results did not exclude Mr Eades, but he did dispute that the DNA came from blood.[43]
[43] ts 2036 - 2037.
Dr McDonald said that a swab taken from a stain on a shoe of Mr Penny had tested K-M negative but had been found to have DNA matching that of Mr Eades. He said that this was effectively a control sample and showed that there was DNA of Mr Eades on the shoe that was unrelated to blood.[44]
[44] ts 2047.
Ground 1 - the trial judge's ruling
The objection to the evidence of Dr Baxter was essentially that she did not provide any basis for concluding that the relevant DNA of Mr Eades was derived from blood. The possibility that the DNA was trace DNA could not be excluded, nor did the evidence provide any basis for assessing whether trace DNA was a more or less likely source than blood.
The trial judge ruled that the evidence of Dr Baxter was admissible as expert opinion evidence. In doing so his Honour noted that the evidence needed to be understood in the broader context of the evidence as a whole, which he summarised. We will return to that broader evidence shortly. His honour then noted:[45]
In cross-examination Dr Baxter said a confirmatory test as to whether or not the swab was from blood would be an additional factor to be considered in the entire factors to determine whether the biological source is human blood. Dr Baxter said PathWest is unable to determine definitively the biological source of a DNA profile. Dr Baxter said a HemaTrace test can provide additional information but she would still be unable to say whether a DNA profile definitively came from a human source of blood.
Other factors, though, such as the colour of the stain may assist in that determination, but a scientist is unable to definitively say whether a stain is blood. In short, the determination as to whether the stain is blood will be based upon the entire circumstances including the results of the test, whether it be Kastle-Meyer or the HemaTrace test.
In respect to whether a swab sample of a bloodstain may collect material from under that stain, PathWest is unable to definitively state whether or not that has occurred. Dr Baxter said within a mixture of DNA profiles there cannot be determined what biological source is contributed into that mixture from each of the individuals.
In cross-examination Dr Baxter was asked questions concerning the cross-contamination of dry blood which she conceded was possible, but there would be other factors that would have to be considered in that scenario including pressure, duration of the contact, or whether the surface is absorbent versus non-absorbent.
Dr Baxter was asked in cross-examination how a hypothetical experiment could be done to determine how broadly the deceased's DNA was spread throughout the Hakea wing. To that question Dr Baxter said it would not be unreasonable to find the deceased's DNA source present within the prison. Therefore, in her opinion, one cannot make a control for that determination but that:
You may be able to detect the presence of his DNA.
Dr Baxter confirmed that she was unable to comment on the presence, therefore, of the DNA, if any, but most likely there would be, in her opinion, of the deceased's DNA throughout the prison.
[45] ts 2098.
His Honour summarised the defence contention in regard to the admissibility of the evidence in the following way:[46]
In short, it's contended the jury would be unable to exclude the realistic possibility of innocent transfer. The contention there is based on the known circumstances and studies of transference. Therefore, it's contended the scientific evidential basis for allowing an inference of the stains on the shoes of Mr Penny and Mr Clay are blood of the deceased is not sound in that the degree of uncertainty cannot be known or assessed reasonably by a lay tribunal in the circumstances of this case.
[46] ts 2101.
His Honour concluded that:[47]
I do not accept the defence submission. The question whether there was any contamination of the DNA material and, if so, whether it had any significance is a matter to be determined by the jury.
In undertaking that assessment and making findings, the entire evidence at trial may be relied upon by the jury. Should the jury find that the particular piece of evidence that they are considering is relevant to their determination, the jury must consider the entirety of the circumstances and make findings about the integrity of the item they are considering and determine the weight to be placed on that piece of evidence.
There are two pairs of shoes. They are the items that form the State's evidence concerning DNA. The jury though will not consider the two items in isolation but in light of other evidence they will be assisted by expert opinions.
An illustration of this point is a contention that the blood on the two pairs of shoes may have been contaminated by spaghetti Bolognese. The jury must consider the entirety of the evidence that includes that the evening meal was spaghetti Bolognese, that the deceased was found in a pool of blood without any other person present.
[47] ts 2102 - 2013.
His Honour set out some facts regarding the possibility of contamination arising from a spillage of food and then said:[48]
This analysis does not require scientific modelling to assist. For example, scientific modelling to determine the likelihood that at least Mr Eades' blood may have been spread throughout the wing of the prison. It is with the providence (sic) of the jury to undertake the assessment, make findings and give weight.
In this trial there is no submission that the analysis undertaken by Dr Baxter or her calculations were unreliable. What is being contended is the primary material upon which she relies is contaminated, further, assumptions are being made.
Those assumptions though are fully disclosed. Her reasoning is fully disclosed in the manner in which is necessary as outlined by his Honour Heydon J in Makita v Sprowles.
It is a matter for the jury to determine whether or not what was swabbed from the shoes was human blood. It's a matter for the jury to determine. The jury have the ability to do so. The jury do so virtually in every criminal trial in which the State relies upon DNA evidence. I therefore do not accept there is merit in the first basis upon which the defence relies to exclude the evidence.
[48] ts 2013 - 2014.
Ground 1 - the appellant's submissions
The appellant's written submissions advance an argument that Dr Baxter's evidence was inadmissible because she provided no basis upon which the jury could assess the degree of contamination present and its significance upon the results. Although Dr Baxter accepted that contamination by trace DNA was a possibility, it is said that she failed to lay a scientific foundation for how she arrived at that conclusion rather than contamination being something more than a mere possibility.[49]
[49] Appellant's submissions [11] - [14].
In oral submissions counsel for the appellant sought to draw support for her argument from the terminology used by Dr Baxter. It was suggested that there was significance in the fact that Dr Baxter said that the relevant results were consistent with being blood, whereas later she said that she could not rule out the possibility of contamination or transference. Counsel submitted that this conveyed a suggestion that blood was the more likely source.[50]
[50] Appeal ts 11 - 23.
Counsel particularly relied on the italicised portion of the passage quoted at [46] and the statement by Dr Baxter 'it is blood though'. She said that this should be understood as meaning that Dr Baxter was advancing a positive opinion that the relevant DNA was derived from blood. She contrasted this with the answers that followed in the same passage in which Dr Baxter, when asked what was required to balance the two theories, is said to have avoided the question by saying that the DNA profile does not reveal how the DNA came to be present. Counsel accepted that ground 1 depended on acceptance of her interpretation of Dr Baxter's evidence. She also accepted that any assessment of what opinions Dr Baxter was advancing required a reading of the evidence as a whole.[51]
[51] Appeal ts 11, 24 - 25.
Ground 1 - the merits
The relevant law regarding the necessity for expert opinion evidence to have a proper foundation is not in dispute. It must be established that the facts on which an expert opinion is based form a proper foundation for it. The evidence must concern a matter about which ordinary persons are unable to form a sound judgement without the assistance of those possessing specialist knowledge, expertise or experience. There must be a scientific or other intellectual basis for any conclusions reached. The expert witness must explain how their specialised knowledge applies to the observed facts to produce the opinion expressed.[52]
[52] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 [85] (Heydon JA); Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [24] ‑ [29], [56].
In the present case it is important to bear in mind the relevance of Dr Baxter's evidence in the context of the evidence led by the prosecution as a whole. The prosecution case was that the appellant had blood from Mr Eades on his shoes as a consequence of his participation in the killing. Proof of this depended on an accumulation of evidence, including the position and appearance of the stains, the presumptive testing for blood and the DNA testing. Dr Baxter's evidence regarding the DNA testing was only one component of the evidence. The admissibility of the DNA analysis evidence did not depend on that analysis alone being able to establish that the DNA was derived from blood.
The ground of appeal contends that the whole of Dr Baxter's evidence should have been excluded. However, the ground does not clearly identify what opinion it is that Dr Baxter gave that is said to be without a proper foundation. Nor do the particulars. The closest the particulars come to addressing the issue is at par q):
In the absence of any control testing or assessment of risk of contamination, Dr Baxter did not lay any scientific foundation upon which:
a.A jury could meaningfully assess the degree of contamination present and its significance upon the results, if any; and
b.How she arrived at her conclusion of it only being a possibility rather than anything more.
Subparagraph a) does not refer to an opinion given by Dr Baxter. It is directed to a different question, that is, whether the evidence enabled the jury to assess the likelihood that the DNA was derived from contamination (rather than blood). That is not a challenge to the foundation of the expert opinion of Dr Baxter. It is a suggestion that the evidence was deficient in some material aspect. That is a matter canvassed in dealing with ground 2.
Subparagraph b) (putting aside the awkward grammar) refers to a conclusion that contamination was 'only … a possibility rather than anything more'. The implication is that when Dr Baxter said that contamination was a possibility she was, in effect, saying that it was unlikely. The contention is that there was no proper foundation for advancing an opinion as to the likelihood of contamination.
The obvious flaw in this argument is that it takes an opinion that something is possible as being an opinion that it is a mere possibility and nothing more. That is not what Dr Baxter said. Nor is such an interpretation of her evidence reasonably open. It is clear from her evidence that when asked about contamination Dr Baxter accepted that it was a possible explanation for the DNA results. She referred to some factors that could influence the likelihood of contamination, but she did not advance a view one way or the other as to whether that was a probable or improbable explanation in this case. It was, of course, for the jury to consider those factors in making its assessment of the evidence as a whole.
On the basis of the information available to Dr Baxter the only view she could properly give regarding the alternative explanations put to her by the defence was that they were possible. That it was possible that the DNA in question could be trace DNA, or DNA transferred from another source or contamination, was open because the DNA testing could not identify the source of the DNA as blood. The DNA testing did not distinguish between cellular material derived from blood and cellular material from other sources. There was clearly a proper foundation for expressing an opinion that it was possible that the DNA came from another source.
In oral submissions the focus shifted to whether Dr Baxter had advanced a positive opinion in her evidence on the voir dire that the DNA found on the appellant's shoes was derived from blood. The appellant submitted that such an opinion had been given and that it had no proper foundation. In essence this argument depends on the meaning of the answer 'The findings in the report with respect to possible bloodstains would be consistent with a blood-like source of DNA. I can't definitively say it is DNA. It is blood though' in the passage extracted at [46]. If Dr Baxter was advancing an opinion that the DNA came from blood then such an opinion would require a proper basis. If Dr Baxter was not advancing an opinion that the DNA came from blood then there is obviously no substance in a complaint that such an opinion was not properly based.
Any assessment of Dr Baxter's evidence must involve a consideration of the whole of that evidence. To confine consideration to individual words or phrases removed from their context is apt to produce results that are misleading. Words or phrases may be uncertain or ambiguous as to their meaning, until the broader context is taken into account. Further, it may be apparent that a phrase used by the witness in one part of their evidence is inconsistent with what the witness has said in other parts and does not fairly represent what the witness was saying.
On any fair reading of Dr Baxter's evidence, it is clear that she was not advancing a concluded opinion or indeed any opinion as to the biological source of the DNA. She said that the presumptive test for blood was only an indicator of the possibility of the presence of blood and that it was not conclusive. She was at pains to say that the process of DNA analysis did not distinguish between cells derived from blood or from some other bodily source. She repeatedly said that she could not say that the DNA had come from blood. There was nothing remarkable in this; it is a feature of DNA analysis in every criminal case (as acknowledged by Dr Baxter in her evidence).
The phrase 'I can't definitely say it is DNA - it is blood though' cannot be viewed as an expression of an opinion that the DNA was sourced from blood when seen in the context of the whole of Dr Baxter's evidence. It may be that this was merely a reference to the K-M test result, or it could have been a linguistic slip (in that Dr Baxter inadvertently transposed the words 'blood' and 'DNA' in this answer). It is not reasonably open to infer that by this phrase Dr Baxter was doing what she had said, multiple times, she could not do - express a concluded view as to whether the DNA was blood.
It was suggested that there is significance in Dr Baxter's terminology, in that she used the word 'consistent' when referring to the possibility that the DNA was blood but said that other explanations were 'possible' or could not be ruled out. The contention was that this difference in terminology implied that blood was the preferable or more likely explanation.
The word 'consistent' is used by scientists to convey that the available data is capable of being explained by a suggested hypothesis. It bears the ordinary dictionary meaning of 'not containing any logical contradictions'.[53] To say that the testing results are consistent with blood means that the results allow for that possibility; that is, there is nothing that logically excludes it. The word does not convey probability or likelihood. When referring to the results in this case as being consistent with blood it is clear that Dr Baxter was using the word in this sense. At no stage did she use the words likely or probable or express any view that could be viewed as implying such concepts. There is no significance in the fact that Dr Baxter said she could not exclude or rule out or deny the possibility of other sources of DNA.
[53] Shorter Oxford English Dictionary (5th ed, 2002).
There was an implication in the submissions at trial and on appeal that Dr Baxter must have been expressing a view about blood being the source of the DNA as otherwise there would be no basis for the jury to draw a conclusion in that regard. This argument fundamentally misunderstands the nature of the available evidence. Unlike Dr Baxter, the jury had available to it other evidence which, when considered together with the DNA evidence, could support an inference that the DNA was derived from blood. That evidence will be considered in more detail in relation to ground 2, but it includes the evidence of B, the evidence of the appearance of the stains and the evidence of Senior Constable Outred regarding blood spatter.
Dr Baxter did not advance an opinion that the source of the DNA found on the appellant's shoes was, or was likely to be, blood. Thus, the alternative basis on which this ground was pressed is not made out. There is no need to consider whether such an opinion would have had a proper foundation.
Even if, contrary to our view, in the passage at [46] Dr Baxter was to be understood as saying that the source was likely blood, at most that may have meant that this particular statement of opinion was inadmissible. It would provide no basis to exclude the whole of Dr Baxter's evidence.
There is no basis for the contention that the trial judge erred in permitting the evidence of Dr Baxter to be adduced.
This ground has no reasonable prospects of success. Leave in respect of it should be refused.
Ground 2 - relevant evidence
The appellant contends that there was insufficient evidence for the jury to conclude beyond reasonable doubt that he was a participant in the assault. The evidence said by the appellant to be relevant to that issue is largely confined to that of B, Senior Constable Outred and Dr Baxter.[54] Although some of the other evidence might well be seen as providing further support for the verdict, this ground can be resolved by reference to the combined force of the evidence of these witnesses. A summary of the trial evidence of each of those witnesses follows.
Evidence of B
[54] Appellant's submissions [17], [19].
B was 22 years old at the time of the trial. In February 2019 he was in custody in Hakea Prison. He first went into custody on 3 February 2019. His cell mate was Mr Kapene. At the time of the assault they had been cell mates for about a month.[55]
[55] ts 762 - 763.
B had known the appellant from when he (B) was about 15 years of age, that is about five years at the time of the offence. He said that the appellant has a tribal tattoo of New Zealand origin on his neck. He also was aware of tattoos on Mr Taylor and Mr Penny.[56]
[56] ts 764.
B said that lunchtime at the prison was around 11.00 am. Prisoners were allowed to eat lunch either in their cell or in the common area set aside for that purpose. At around lunchtime on 26 February 2019, B was in his cell with Mr Kapene when the appellant and Mr Taylor came in. Mr Taylor said 'There is a rapist downstairs' and that he wanted B and Mr Kapene to assault that man. Mr Taylor said that if they did not do so then the same thing would happen to them. B and Mr Kapene asked why they had to be involved and Mr Taylor said because they had to earn their spot on the wing. Mr Taylor and the appellant were in the cell for no longer than five minutes.[57]
[57] ts 764 - 766.
Dinner was around 4.00 pm. Prior to dinnertime Mr Taylor came back to B's cell and gave him and Mr Kapene two pairs of blue gloves each, telling them to put them over their hands. Mr Taylor also told B and Mr Kapene to use a shirt as a balaclava.[58]
[58] ts 767.
At dinner, B sat at a table closest to the sink on the right-hand side of the dining area. Dinner was spaghetti. As B was having dinner the appellant approached him, pointed out Mr Eades and said 'There is the rapist' as Mr Eades was walking back down to level A with his spaghetti dinner. B had never met Mr Eades before. The appellant then went back upstairs and B finished eating his dinner.[59]
[59] ts 767 - 769.
Shortly after dinner, as B went to wash his plate in a sink, he saw the appellant, Mr Taylor, Mr McGlade, Mr Penny and Mr Kapene run downstairs. He quickly ran upstairs and put his plate in his cell and put his gloves on and then ran downstairs. He ran into a cell on the right side with Mr Kapene, who was already downstairs. He could not recall which cell number it was. He went into the cell to put on a balaclava but did not end up doing so. He did not at any stage cover his face.[60]
[60] ts 769 - 770.
B said that he heard a discussion and understood that Mr Taylor was meant to go into Mr Eades' cell first. He knew that Mr Eades' cell was the one on the left side at the very end. B saw Mr Taylor run into the cell and hit Mr Eades. Mr Eades was sitting on a chair eating his dinner. Mr Taylor hit Mr Eades to the head twice, first with his right fist then with his left fist, with an estimated force of 9 out of 10.[61]
[61] ts 771 - 772.
B then saw the appellant hit Mr Eades about five times to his face while Mr Eades was still in his chair. The appellant had a balaclava on but B could tell it was him from the tribal tattoo on his neck.[62]
[62] ts 772.
B also saw Mr Penny hit Mr Eades to his face two or three times. B knew it was Mr Penny from a tattoo on his neck. At this time Mr Eades was in his chair with his back up against the window. B then hit Mr Eades twice, once with his right fist with a force of 9 out of 10 and once with his left fist. Mr Kapene then hit Mr Eades once in the chest. Mr Eades was still sitting down but was 'sort of off the chair'. B then saw Mr Taylor grab Mr Eades by his head and throw him to the ground with maximum force. Mr Eades landed on the ground with his head facing towards the door and the back part of his body facing towards the cell window. When Mr Eades landed on the floor B saw his eyes flicker. One of Mr Eades hands was trying to block his face and the other was by his side.[63]
[63] ts 772 - 774.
B then saw Mr Taylor use both his feet to kick Mr Eades' face several times with a force of 9 out of 10. The appellant was next to Mr Taylor. Most of the men were grouped around Mr Eades' head, approximately 30 cm away from him.[64]
[64] ts 774.
B then saw the appellant kick Mr Eades to the side of his face four or five times with a force of 9 out of 10. When the appellant was kicking he had his face covered but B identified him by the tattoo on his neck. Mr Penny also kicked Mr Eades. At this time B was standing behind Mr Penny and Mr McGlade was near the door, with Mr Kapene behind him. Mr Eades received at least 15 kicks within a minute whilst he was on the floor.[65]
[65] ts 775.
B saw blood coming from Mr Eades' face and nose while he was receiving kicks. He could also hear him trying to breath. He said Mr Eades' face looked like it had many cuts, bruises and also damage to the bones from being kicked. The kicking went on for two to three minutes.[66]
[66] ts 776.
B then saw the appellant grab onto the shelf and the top of the bunk bed and double kick Mr Eades to the face several times. He saw the appellant double stomp with both feet and with force by holding and pushing himself off the top bunk. This went on for three or four minutes. The appellant's feet came off the ground as high as the first bed of the bunk bed. B saw lots of blood and there was a pool of blood around Mr Eades' head.[67]
[67] ts 776 - 778.
B then saw the appellant attempt to get out of the cell by pushing the door but it was being held shut. About 30 seconds later, B forced the door open and ran upstairs to his cell. He and Mr Kapene then grabbed some toilet paper and took their gloves off and flushed them down the toilet. Three or four minutes later he heard Mr Taylor and the appellant walk up the hallway. He heard the appellant say to Mr Taylor 'I don't care what happened. I don't care if I killed him. He was a rapist. He deserved it'.[68]
[68] ts 778 - 779.
A 48-hour lockdown was ordered and B and Mr Kapene remained in their cell the whole time. The lockdown finished on 28 February 2019. The only time B and Mr Kapene left their cell during the lockdown was when detectives came to take their shoes and clothes and gave them new clothes.[69]
[69] ts 779 - 780.
After the lockdown, Mr Penny came to B's cell and said to him and Mr Kapene 'All we have to do is keep our mouths shut and none of us will go down with it'. A short time later B asked Mr Taylor why he had to be involved, to which Mr Taylor replied 'Cos you had to'.[70]
[70] ts 780.
In cross‑examination B accepted that he had had the 'odd run‑in' with the appellant and that they avoided each other in the main. He accepted that almost every day the appellant would come to B's cell and take his cigarettes. He accepted that he disliked the appellant very much for taking his cigarettes.[71]
[71] ts 864.
B accepted that he lied in his first interview with police on 10 April 2019 by saying that he had nothing to do with the attack. He said that he lied because he wanted to avoid being charged with murder and going to jail for 20 years. He accepted that he lied again for the same reason in a second interview on 16 April 2019. He also accepted that on a previous occasion, when caught with drugs, he had given the police his brother's name and date of birth in order to avoid going to jail. He accepted that he was capable of making up a story and sticking to it until he got caught. He accepted that after he was caught lying to the police about having nothing to do with the death of the deceased, he changed his story.[72]
[72] ts 866.
B accepted that he had made a commitment to the prosecution to give evidence in the trial and had received a discount on his sentence. It was put to B that the appellant had nothing to do with what happened and that his name had been thrown in the 'mix' during a subsequent conversation between B and Mr Kapene. B denied saying this and maintained that the appellant was involved.[73]
Evidence of Senior Constable Outred
[73] ts 788 - 789, 873 - 874.
Senior Constable Katherine Outred is a crime scene investigator who has expertise in bloodstain pattern analysis. She attended at Hakea Prison on 27 February 2019 to conduct a forensic examination of clothing and footwear of prison inmates. She was responsible for collecting exhibits from cells in the downstairs area. She did not enter any cells but remained in the common area where items were brought to her by investigators.[74]
[74] ts 2289 - 2291.
Senior Constable Outred examined items that were brought to her and identified any stains that she believed to be blood. She set up her workstation by placing brown paper onto the benches in a common area and put sterile drop sheets to create a physical barrier between the surface that she was working on and the exhibits that were handled. The sterile drop sheets were changed between each item to minimise the risk of contamination. She was wearing a mask covering her nose and mouth and was wearing gloves. The gloves were always present but she changed them as she was handling the exhibits.[75]
[75] ts 2291 - 2294.
Senior Constable Outred said that when she received an item she first did a visual examination, which involved looking over the surfaces of the item for stains. If a stain was identified and had the appearance of blood she would conduct a presumptive test. A presumptive test was conducted by twisting a sterile swab onto the stain and lifting it off.[76] The swab was then applied to the chemical testing strip and water was applied. If a test was positive the colour would change almost instantaneously, or within 10 seconds, and would become very dark very quickly.[77]
[76] This test is the Hemastix test, another presumptive test for blood. The Kastle Meyer presumptive test was used at PathWest.
[77] ts 2292.
Senior Constable Outred said that originally the shoes seized were placed into brown paper bags which were folded twice at the opening and taped with clear tape. The swabs, clothing and other items that were seized were taken back to the forensic field operations office.[78]
[78] ts 2295.
As regards the appellant's right shoe, Senior Constable Outred said that stain SPE22 was a red/brown deposit on the velcro strap which had an upside-down teardrop shape. She identified this stain as a spatter bloodstain. She gave three reasons why this stain had the appearance of a spatter blood stain. First, the red/brown colour was consistent with dried blood. Secondly, the way the stain had interacted with the surface had the appearance of being a liquid deposited on to the surface. Thirdly, the stain had a raised perimeter which is a characteristic feature of a spatter bloodstain.[79]
[79] ts 2307.
Senior Constable Outred gave the opinion that SPE22 was created by liquid blood being dispersed through the air in the form of droplets by an external force and being subsequently deposited on to the shoe. She said that this indicated that the shoe was near the source of the deceased's liquid blood at the time that the blood was distributed through the air in the form of droplets. She said that there were not enough spatter stains to indicate a pattern; therefore, a particular mechanism could not be attributed as to how these spatter stains were created. She said that research indicates that a droplet from an impact can travel up to 5.36 m. She said that if the shoes were within 5.36 m of an impact with a source of blood, they could have blood deposited on them.[80]
[80] ts 2342 - 2343, 2349.
On 15 March 2019, Senior Constable Outred returned to the prison to conduct a bloodstain pattern analysis examination of the cell of Mr Eades. She also examined photographs taken during the initial crime scene examination. There were blood spatter stains on the underside of the lowest shelving unit, the leg of the bunk bed, the ladder leading to the top bunk and on the floor.[81]
Evidence of Dr Baxter
[81] ts 2296 - 2300.
Dr Baxter gave evidence at the trial that was largely consistent with that she had given on the voir dire. She confirmed her qualifications and experience. She said that the Kastle‑Meyer test is a presumptive test used to identify the possible presence of blood. However, it does not confirm the presence of blood. Nor does a negative reaction confirm the absence of blood. She said that the HemaTrace test is also available but is no longer referred to as a confirmatory test for human blood as it is known to react to citric acid at a low pH.[82]
[82] ts 2592 - 2596.
In regard to swabs SPE18 and SPE22, Dr Baxter said that these gave a positive reaction to the presumptive chemical test for blood. She gave the same evidence regarding the DNA analysis as she had given at the voir dire, namely that in each case it was 100 billion times more likely that Mr Eades was the source or was a contributor than that the samples came from unknown individuals.[83]
[83] ts 2621 - 2622, 2625 - 2626.
In cross‑examination Dr Baxter accepted that, when examining DNA obtained from a swab of an area that looks like a stain, she cannot tell whether the DNA was from the stain itself or was underneath the stain before it was deposited. She also accepted that she cannot determine how the DNA came to be present. She accepted that the quantity of DNA obtained from swab SPE22 was 0.009 ng. The average cell is between 0.005 or 0.007 ng. There was, however, no acceptance on her part that the relative smallness of the sample affected the results.[84]
[84] ts 2766 - 2769.
When defence counsel put to Dr Baxter the possibility that the DNA found on the shoes was trace DNA as opposed to being from blood, she said that control sampling can be done of areas other than the stain but this may not represent what is underneath the stain. She said that more control sampling could provide a more informed representation of what DNA may be around. She said 'DNA may not be present uniformly across the shoe so different areas of the shoe may yield different DNA results'. She accepted that contamination can occur in the laboratory. There are procedures for investigating and determining the significance of any such contamination. She accepted that contamination events cannot be completely eliminated in the laboratory and that even with the best practices, instances of contamination of DNA can occur.[85]
[85] ts 2775 - 2778.
Ground 2 - the appellant's submissions
The appellant's written submissions are to the effect that the only evidence incriminating the appellant was that of B, the forensic evidence regarding DNA found on his shoes and the blood spatter evidence. It is suggested that B's evidence was not credible or reliable, that Dr Baxter's evidence was marred by issues of contamination, and that Senior Constable Outred's evidence was minimal and unreliable.
In oral submissions counsel for the appellant said that an additional factor was that the DNA found on the appellant's shoes was only small in quantity. It was suggested that if the appellant had done what B alleged it would be expected that there would be more blood on the appellant's shoes. The small quantity was said to be inconsistent with the prosecution case, but supportive of a case that the DNA was merely trace DNA with no forensic significance. However, significantly, counsel conceded that there was no evidence regarding how much DNA might be expected in any particular scenario.[86]
[86] Appeal ts 29 - 35.
Counsel suggested that the small quantity of DNA found on the appellant, even if it be from blood, was more consistent with him being a spectator, rather than an active participant. It was submitted that there were also other possible explanations for the DNA that could not be excluded on the evidence. One of these was that the DNA was trace DNA that did not indicate the appellant's presence at the time of the attack. Another was that it was contamination from dried blood that was spread into the common areas of Unit 9 by prison officers who assisted in the clean-up.[87]
[87] Appeal ts 40 - 47.
In written submissions the appellant asserted that B had wrongly stated that the appellant had a tattoo on the back of his neck. In fact that was not B's evidence. B, in describing the appellant, said that he had a tattoo on his neck and that it was a tribal tattoo referring to his New Zealand descent. When describing the incident and how he knew that one of the men was the appellant, B said 'because I could tell his tribal tattoo on his neck'. When asked how he knew the appellant was involved in the kicking, he said 'Because of the tattoo on his neck'.[88]
[88] Respondent's submissions [25].
Ground 2 - the merits
The relevant legal principles regarding grounds of this type are well established and have been recently restated by this court in Wark v The State of Western Australia.[89]
[89] Wark v The State of Western Australia [2023] WASCA 66 [329] - [342].
In deciding whether a verdict of guilty is unreasonable or cannot be supported, this court must make its own independent assessment of the sufficiency and quality of the evidence. That assessment must address whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant having regard to the whole of the evidence, including any competing evidence.[90] However, the question is not merely whether as a matter of law there was sufficient evidence to sustain a conviction. The appeal court must decide whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in all the circumstances to let the verdict stand.[91]
[90] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
[91] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appeal court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, must not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilty or innocence, or that the jury has had the benefit of having seen and heard the witnesses.[92] In Pell v The Queen,[93] the High Court said:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)
[92] M (493); SKA [13]; R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
[93] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
Circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. This also applies when considering whether the evidence allows for an inference consistent with innocence. In R v Baden-Clay,[94] French CJ, Kiefel, Keane and Gordon JJ said:
For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King (1911) 13 CLR 619, 661, quoted in Barca v The Queen (1975) 133 CLR 82, 104) (original emphasis). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier (2007) 228 CLR 618, 637 [46] (footnote omitted)) (original emphasis). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535; [1984] HCA 7).
[94] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].
The appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any reasonable doubt that the appellant was guilty of the offence.[95] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial'.[96]
[95] Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).
[96] Dansie [16] (Gageler, Keane, Gordon, Steward & Gleeson JJ).
In the present case the evidence of B was particularly important. That evidence was direct evidence of the appellant's involvement in the assault on Mr Eades. B gave a detailed account of what occurred in the cell, including that the appellant kicked and stomped on Mr Eades' head. He also gave evidence regarding the discussions that occurred before the attack, which included the appellant pointing out Mr Eades, and the conduct of the appellant after the attack, including an overheard admission by him of his involvement. B was cross‑examined about his initial lies to police in order to distance himself from the killing of the deceased, his subsequently reduced sentence as a result of his cooperation, and inconsistencies in his account of events.
In our assessment B's evidence was detailed and compelling. We do not accept that he was incapable of being accepted as credible and reliable, particularly when regard is had to the substantial other evidence that supports his account. In coming to this latter conclusion, we have also taken into account the advantage that the jury had in hearing and seeing B give evidence (albeit in pre-recorded form).
The evidence of B was corroborated by the scientific evidence, including the opinion of Dr Baxter that swabs taken from stains on the appellant's shoes contained a DNA profile which matched that of the deceased. Evidence regarding the appearance of the stain, the presumptive testing and the forensic examination of the cell supported a conclusion that the stains were blood. The evidence of Senior Constable Outred also supported a conclusion that the blood had been deposited on the shoes by means of projected spatter. The presence of blood on the bunk, shelving and wall of the cell supported B's account that the appellant held onto the bunk and the shelving whilst he stomped on the deceased's face.
It is important to view the evidence as a whole and not in a piecemeal way. When that is done the inference that the appellant was a participant is compelling. Furthermore, inferences consistent with innocence are speculative or readily capable of being excluded. The appellant suggested that the possibility of trace DNA or contamination was not excluded by the evidence, but that contention cannot withstand examination of the whole of the evidence. For example, the hypothesis of trace DNA or contamination would provide no explanation for the stain and the evidence referred to in the previous paragraph. The evidence referred to in the previous paragraph strongly supports a conclusion that the stains on the appellant's shoes were from blood of Mr Eades. This, in turn, supports a conclusion that the appellant was a participant in the assault.
The evidence, when taken together, was plainly and readily capable of supporting an inference that the DNA on the appellant's shoes was derived from blood that got on to the shoes during the attack on Mr Eades. Indeed, on our analysis of the trial record, the inference was compelling. Trace DNA could be excluded as a reasonable explanation having regard to the whole of that evidence. Contamination from dried blood relied on an unlikely conjunction of coincidences and could not account for the stains being on the upper parts of the shoes. The suggestion that the appellant may have been merely a spectator was never suggested at the trial and is inconsistent with the defence case that was put. Moreover, there being no evidence to suggest that the appellant was present during the attack without participating in it, the alleged inference to that effect does not rise above mere conjecture.
It was plainly open to the jury to conclude on the whole of the evidence that the appellant was a participant in the assault on Mr Eades. The evidence was comfortably sufficient in nature and in quality to eliminate any reasonable doubt that the accused was guilty. Our examination of the trial record and the evidence as a whole does not leave us with a reasonable doubt as to the appellant's guilt.
This ground has no reasonable prospect of succeeding and leave in respect of it should be refused.
Conclusion
We would make the following orders:
1.Extension of time to appeal granted.
2.Leave to appeal on Grounds 1 and 2 refused.
3.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
16 MAY 2023
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