Eastwell v The Queen
[2002] WASCA 146
•7 JUNE 2002
EASTWELL -v- THE QUEEN [2002] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 146 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:190/1997 | 2 APRIL 2002 | |
| Coram: | MALCOLM CJ WHEELER J McKECHNIE J | 7/06/02 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ERIC ALBERT EASTWELL THE QUEEN |
Catchwords: | Evidence Opinion of expert as to time of death Opinion based on observation of maggots and assumptions Juries Obligation to consider whole case No obligation to accept expert's opinion No new principles |
Legislation: | Nil |
Case References: | Velevski v The Queen [2002] HCA 4 Chamberlain v The Queen (No 2) (1983) 153 CLR 521 Hocking v Bell (1945) 71 CLR 430 R v Massey (1994) 77 A Crim R 39 R v Chester (1981) 5 A Crim R 296 R v Hall (1988) 36 A Crim R 368 R v Matheson [1958] WLR 474 Taylor v The Queen (1978) 22 ALR 599 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EASTWELL -v- THE QUEEN [2002] WASCA 146 CORAM : MALCOLM CJ
- WHEELER J
McKECHNIE J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Evidence - Opinion of expert as to time of death - Opinion based on observation of maggots and assumptions - Juries - Obligation to consider whole case - No obligation to accept expert's opinion - No new principles
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr D P A Moen
Respondent : Mr R E Cock QC
Solicitors:
Appellant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Velevski v The Queen [2002] HCA 4
Case(s) also cited:
Chamberlain v The Queen (No 2) (1983) 153 CLR 521
Hocking v Bell (1945) 71 CLR 430
R v Massey (1994) 77 A Crim R 39
R v Chester (1981) 5 A Crim R 296
R v Hall (1988) 36 A Crim R 368
R v Matheson [1958] WLR 474
Taylor v The Queen (1978) 22 ALR 599
(Page 3)
1 JUDGMENT OF THE COURT: On 29 October 1997, the appellant was convicted of the wilful murder of Llewellyn Parkman Bourne and sentenced to life imprisonment. The appellant lodged an appeal against conviction within time but, for reasons which have not been satisfactorily explained, this appeal has taken over 4 1/2 years to be heard. At the appeal the Court granted leave to amend the grounds of appeal. The Crown did not object and the appeal was conducted on amended grounds.
2 The grounds of appeal directly relate to the expert evidence given by Dr Ian Dadour, a forensic entomologist, as to the time of death. In order to understand the grounds of appeal, it is necessary to set out in summary some aspects of the Crown case at trial. (The appellant did not give evidence at trial.) The Crown case was entirely based on circumstantial evidence. No challenge is made to the trial Judge's directions to the jury except to the omissions said to have been made in respect of Dr Dadour's evidence.
Background
3 In 1981 Llewelllyn Parkman Bourne married Lola Jean Bourne, who is known as Rosie Bourne. They had two children. After a time they separated. Rosie Bourne and the children moved to Northam. She and Mr Bourne divorced in 1989. In 1993 Mr Bourne married Judith May Smith.
4 In the early 1990's, Mr Bourne and Judith commenced farming at Shadley Farm in the Trayning/Kellerberrin region. Their attempts were unsuccessful. The appellant was invited to work on the farm and did so for some months before being laid off because of the financial deterioration in the Bournes' circumstances. On 1 January 1995, the appellant started work as the manager of a chicken farm at Lot 1 Casuarina Road, Casuarina. The chicken farm was owned by Mr Cayeux.
5 In April 1995, Shadley Farm was sold and Mr Bourne and Judith lived on the streets of Perth for a time before splitting up. On 5 June 1995, Bourne rented Unit 25, 17 Bromley Road, Hilton.
6 The appellant harboured strong and antipathetic feelings about Mr Bourne, feelings which he expressed to Mr Clarke who, for a time, worked with him at the chicken farm. The appellant would become very upset and red in the face when expressing his views about how Mr Bourne had ruined a perfectly good farm and caused its bankruptcy. On several occasions the appellant told Mr Clarke that somebody should kill Mr
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- Bourne and described, on at least one occasion, how he had a small piece of steel – a key steel - which he could have used to strike Mr Bourne on the head.
7 In August 1995, the chicken farm was sold by Mr Cayeux to Mr Warrington. Settlement was to take place on 21 September 1995.
The events of September 1995
(a) Northam
8 In early September 1995, Mr Bourne decided to visit Shadley Farm, apparently to take some form of inventory. On 8 September, he duly travelled to Trayning and, between 8 and 12 September, was in the Trayning/Kellerberrin area where he met a number of people who gave evidence at trial. On 12 September, he travelled to Northam, his intention being to meet Rosie Bourne and his children. He caught a train and apparently slept through the Northam stop, because the train stopped at Avon from where a railway officer drove him to Rosie Bourne's house. He arrived mid-afternoon. Mr Clarke was present for most of the time thereafter. Rosie Bourne did not want her former husband sleeping in the house. While Mr Bourne and Mr Clarke went together to a nearby guest house to arrange a room for the night, Rosie Bourne rang the appellant at the home of his friend, Mrs Hansen in Orelia, and asked him to drive to Northam and take Mr Bourne home. The appellant agreed to do so.
9 The appellant arrived at Rosie Bourne's house in Northam about 9.30 pm. He and Mr Bourne had a conversation during which there were raised voices, but the evidence is unclear whether they were arguing. Mr Bourne left with the appellant at about 10.30 pm. The appellant returned to Ms Hansen's house somewhere between 2 and 6 am the next morning, the 13 September.
(b) Hilton
10 Meanwhile, on 12 September at Hilton, a neighbour checked Mr Bourne's unit around 2 pm, observing loaves of bread on a table outside the unit which had been pecked by gulls. On the sink in the kitchenette the neighbour observed that there were two packs of meat which had turned black. He noticed a note in the flat addressed to a woman. That woman was Tracy Keir who visited the flat at about 7 am
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- on 13 September 1995. Mr Bourne was not there. She left a note in reply to the note to her.
11 On 13 September, Rosie Bourne made several unsuccessful attempts to speak to Mr Bourne by telephone.
12 Mr Moore, formerly the manager of St Vincent de Paul Society, who knew Mr Bourne, gave evidence that to the best of his recollection on 15 or 16 September he was driving along South Street at about 50 kph when he saw a man walking by the road toward Fremantle. Mr Moore did not see the person's face, only his back. The recognition took place in a few seconds. He was sure it was Mr Bourne. He blew the truck's horn but got no reaction. The Crown submitted to the jury that Mr Moore was mistaken. Certainly, the evidence of recognition was weak. Other than Mr Moore's evidence, there was no other evidence that Mr Bourne was seen alive between the time he left Northam in the company of the appellant on 12 September and when his body was discovered on 19 September.
(c) Events at the chicken farm
13 On 15 September, Mr Cayeux visited the chicken farm. He noticed a number of wheelie bins out at the gate along the road, but no bin on the farm. Bins were kept at the boundary of the property so that dead birds could be placed in them and from time to time taken away by a collection service. However, due to the sale of the property, that service had been suspended for September.
14 On 16 September, a Saturday, Ms Hansen and her grandson arrived at the farm between 10 and 11 am and stayed to between 3 and 4 pm. She came in response to a request from the appellant. She gave evidence that the appellant was trying to repair a motor vehicle. During the day a real estate agent attended at the chicken farm and spoke with the appellant. Her grandson started to mow the lawn before claiming sickness and so she finished mowing. The appellant came home around 7 pm. Although Ms Hansen was not constantly in the company of the appellant during the period she was on the chicken farm, the general circumstances make it very unlikely that the appellant would have killed Mr Bourne during the daylight hours of 16 September.
15 On Sunday 17 September, the appellant hired Mr Magee to work with him for a day generally cleaning up and carting materials. They worked together most of the day.
(Page 6)
16 On 18 September, Mr Warrington and Mr Jeans, who was to be the new manager after the 21 September settlement, visited the chicken farm for an inspection. Mr Warrington asked for access to the workshop. He had previously been given access. It was conceded at trial that the appellant lied when he told Mr Warrington that the workshop was locked and he had no key. In fact, the appellant did have a key to the workshop.
17 In the afternoon of 18 September, Mr Cayeux attended the chicken farm for a couple of hours. The appellant was then present.
18 Early in the morning of 19 September, Mr Jeans arrived for the inspection of the premises. This had been arranged with the appellant the previous night. Mr Jeans arrived at 6.55 am and noticed a green wheelie bin near the buildings. It was not a usual place for a wheelie bin because they were mainly kept on Coyle Road as Mr Cayeux had described. It had not been there the day before. Mr Jeans looked inside the bin and saw a body. The police attended along with a forensic pathologist, Dr Karin Margolius who, after examining the body, made arrangements for it to be conveyed, still in the bin, to the mortuary at the Queen Elizabeth II Hospital where she performed an autopsy. Her subsequent opinion as to the cause of death was "head injury". She collected samples from the body including fly larvae often called maggots. The deceased man was identified to her as Llewellyn Parkman Bourne. There were numerous injuries to his head and Dr Margolius identified some of the injuries as being consistent with having been inflicted by the back of an axe which was found in a car used by the appellant.
19 The next day the appellant was arrested and charged with wilful murder.
The evidence linking the appellant with the crime
20 The nature of the injuries and the circumstances of the disposal of the body were such that a jury could readily draw the inference that Mr Bourne had been wilfully murdered by someone. This was not really in contention at the trial. The Crown case was that the circumstances pointed irresistibly to the conclusion that the person was the appellant.
21 The evidence of the animosity felt by the appellant towards Mr Bourne, including comments that he should be killed, is evidence of a motive by the appellant to cause the death of Mr Bourne.
(Page 7)
22 The body was found early on 19 September at the chicken farm where the appellant was the manager. The appellant had keys to the workshop which the day before he had falsely claimed he could not unlock. The bin must have been put in position overnight. The appellant left Ms Hansen's house in Orelia at 5.30 am on that morning for the 20 minute drive to the chicken farm, having woken at 3.30 am for an early start.
23 The appellant used Ms Hansen's car during the period of the clean-up and, more particularly, on 19 September. A search of that car and subsequent forensic examination revealed an axe with blood upon it, in respect of which the deceased was the possible donor. Two magazines with Mr Bourne's fingerprints on them were also found in the car. In another bin on the chicken farm police found a packet of White Ox tobacco, a brand commonly smoked by Mr Bourne, together with a Telstra bill in his name.
24 In a bag in the house on the chicken farm were found articles of clothing, including a pair of jeans which, when tested, showed the presence of blood. The deceased, but not the appellant, was a possible donor of the blood. The appellant, but not the deceased, was a possible wearer of the jeans. The wearing of jeans of any sort by the appellant was a matter of contention. Traces of blood, which were consistent with the deceased's blood group, were found in the laundry in the house.
25 The appellant was renting a property in Forrestdale. In October 1995, Ms Hansen went to fetch some clothing for the appellant. While there she looked into a shed and hidden behind tyres she discovered a yellow oil skin bag which contained, among other things, two bottles of tablets which were clearly those of Mr Bourne, and a pair of "Honcho" boots which she had previously bought for the appellant. There was human DNA and human blood on the boots, but it was unable to be matched to any person.
The issue as to the time of death
26 Dr Dadour's opinion was that death of the deceased occurred on the afternoon of 16 September. If death did occur at such a time it is unlikely the appellant was the killer because he was at the chicken farm with Ms Hansen and her grandson.
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The indictment
27 The indictment charged that on a date unknown between 12 September 1995 and 19 September 1995 at Perth Eric Albert Eastwell wilfully murdered Llewellyn Parkman Bourne.
28 On 12 September, Mr Bourne was seen by Rosie leaving Northam in a car driven by the appellant. In the morning of 19 September his body was found. The Crown case as to the time of death was opened by the learned Crown Prosecutor as follows:
"It is not possible to say precisely when Llewellyn Bourne died or where exactly he was killed. The Crown however suggests the fact that Llewellyn Bourne's body was found head first down in a rubbish bin bearing the injuries that it did, clearly indicates that the killer had intentionally killed him and attempted to conceal evidence of that fact. It is the Crown case that the accused is that person."
29 The trial Judge in directing the jury commenced by making the observation:
"... that the circumstances are somewhat unusual in this case, in that you do not have a murder scene which has been positively identified and you do not have any direct evidence as to the circumstances of the killing, as to what took place at the time, where it took place and when it took place.
The Crown must prove that he was murdered, that it was a wilful murder and that it was by Eric Eastwell and that the dates are alleged to have been between 12 September 1995 and 19 September."
The amended grounds of appeal
30 The amended grounds of appeal are as follows:
"1. The evidence of the Crown case could not support the verdict of the jury, and as such it was unreasonable and against the weight of the evidence.
PARTICULARS
- (a) There was direct evidence on the Crown case as to when the alleged murder took place;
(Page 9)
- (b) The Indictment was framed in terms that the alleged murder was to have taken place between 12 September 1995 and 19 September 1995;
(c) The evidence of the Crown expert witness Dr Dadour was that the alleged murder took place on the afternoon of 16 September 1995;
(d) The expert evidence on the Crown case was that the death of the deceased occurred 2.5 days prior to when the body was located;
(e) The evidence of Dr Dadour was supported by Dr Cook;
(f) Dr Margolius deferred to the expert opinion and assessment as made by Dr Dadour and Dr Cook as to the time of death;
(g) Thus the alleged murder could not have taken place at any other time than in the afternoon of 16 September 1995, on the evidence;
(h) Dr Dadour's evidence was not wrong, nor was he mistaken as to the time of death;
(i) The suggestion by the Crown that Dr Dadour's evidence was only a prediction or that he was mistaken or wrong was a peripheral attack on their own witness and case, and could not be supported in any way;
(j) The circumstantial evidence and direct evidence supported the proposition that the Applicant could not have committed the alleged murder on 16 September 1995 in the afternoon;
(k) The dates on the Indictment other than 16 September 1995 were therefore erroneous, and their inclusion in the Indictment would welcome speculation and could have therefore lead to a miscarriage of justice when the evidence of the Crown case taken at its highest identified the time of death beyond reasonable doubt;
(Page 10)
- (l) the jury could not have been satisfied beyond reasonable doubt that the Applicant committed the alleged murder on 16 September 1995, and as such a miscarriage of justice has arisen.
- 2. The learned trail (sic) judge was required to direct the jury that they must accept the unchallenged expert evidence of Dr Dadour in considering their verdict.
PARTICULARS
- (a) The jury was not bound by what expert witnesses say;
(b) The jury must act on the evidence which was before them;
(c) There were no facts and no circumstances shown before the jury in the present case which threw doubt on the expert evidence of Dr Dadour, and as such that was all that they were left with;
(d) As a result, Walsh J., was obliged to direct them that in those circumstances they must accept that evidence."
32 Dr Dadour is a forensic entomologist. He gave evidence at the trial as to his observations of the fly larvae extracted from the body by Dr Margolius and his predictions as to the time of death. He had earlier written a report. This report was signed by Dr Cook. Dr Cook was not called to give evidence but it was accepted at trial that his opinion was the same as that of Dr Dadour and that Dr Dadour's opinion was effectively the expression of two experts as to the prediction of the time of death.
The evidence of the forensic pathologist as to time of death
33 Dr Margolius gave evidence that it looked as though the deceased's body was put into the bin "pretty soon after death" because "it has been fixed in that position." In her examination-in-chief she was asked:
(Page 11)
- "In this particular case, taking into account the features that you have noticed and what you have told us about in relation to your findings, what kind of estimate are you able to give the court as to the time of death of the deceased person?---From the time that we did the autopsy, that would be in the range of about not less than two days before and seven days would be exceeding the range.
So what would that put it in in terms of a timeframe, between what days?---Probably after the 12th - shortly the night of the 12th to about the 16th going on to 17th September."
34 In cross-examination she conceded that 12 September was a guess. However, she confirmed that death could have occurred not less than two days before the autopsy, which would put it around 16, going on to 17 September. She was further cross-examined about the evidence of an entomologist:
"… so it is fair to say that you would defer to Dr Dadour's opinion?---What I would say is that I have given a range and if his opinion fits within it, then I would be very comfortable with it."
35 In re-examination she was asked whether the death could have occurred before 16 September and whether she would be able to rule that out and she said:
"I can't. The reason is that I don't know where the bin has been. I don't know if it has been in the shade or in the sun, so I can only give a range with a variation - with the realisation I don't know where the bin was.
And with that information, that is, where it has been and temperatures and the like, would that be of assistance in helping someone to be more accurate about estimating a time of death or giving a time of death?---That's correct. If I had a better understanding of where it was stored, then it would be more helpful."
The evidence of the forensic entomologist
36 Dr Dadour gave evidence that he had a PhD in Entomology with other qualifications and post-doctoral experience in Germany and Adelaide, had worked as a livestock entomologist since 1989 and has
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- been practising forensic entomology or medico-criminal entomology since 1989. His qualifications as an entomologist were not in issue.
37 Dr Dadour received the fly larvae taken from Mr Bourne's body at autopsy by Dr Margolius. The larvae was of a blowfly called lucilia sericata which is a green blowfly occurring in most of the urban centres in Australia but not generally associated with rural zones. He explained that larvae of all flies pass through three stages known as instars. The eggs hatch into larvae and pass through one stage called the first instar. The second instar is the follow-on from the first instar and the third instar is the final instar before the insect pupates, a cocoon-type structure, which is generally formed away from the carcass or the corpse and buried in soil. It is at this point the maggot metamorphosises into a fly. He explained how maggots off a body are able to be used to ascertain the time of certain events based on the time it has taken for the maggots to get to a certain stage. To do that:
" … we need several pieces of information. We need weather parameters, we need to know where the body was located, and from this we can generally – in this particular case anyway – ascertain what stage or when the body was placed in the position that it was found. Sometimes that placement coincides with the time of death, so time of placement can equal time of death. It all depends. But this particular fly is what is called a primary strike species. … Now, in Australia this fly is not known to strike live animals. It's only known to strike carcasses, corpses, things that are dead."
38 The fly larvae taken from the head area of the deceased were in the early second instar stage.
39 In this case weather parameters at Casuarina were not compiled by means of a weather station at the site. Dr Dadour took the data from the closest weather station which was at Jandakot. He did not know whether this accurately reflected the weather at Casuarina.
40 Dr Dadour had not been able to obtain any information about the temperature inside the bin and so he made an assumption by reference to work done on boots in cars where the temperatures would be generally three to four degrees higher than the environment temperature, but "that is dependent upon whether or not it's in the sun or the shade or partially in sun and shade". He added four degrees onto the daily maximum temperature for his calculations.
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41 Dr Dadour had no information about whether the bin lid was up or down at any time prior to the finding of the body and that information would have been interesting:
"... because had the lid been open it would have been akin then to environmental temperatures and not elevated temperatures. If the lid had have been open we may have had other species of flies gain access to the bin, which may have told a slightly different story or may have backed up the story we already have. It's hard to say.
... It would have been of assistance to us because knowing where the bin was, what was in the bin, yeah, prior knowledge would have helped because the bin may have been - if it was on a chicken farm, as it has been said, it may have been full of chicken offal, those sorts of things. It may have already been struck, so the body had been put into it, the maggots may have crawled from the contents onto the body, yeah. It's hard to know."
42 Dr Dadour gave, what he described several times as, a prediction as to the time of death. He took the oldest maggot on the body and with the temperatures on the days leading up, determined when that particular fly laid its eggs which gave a time-span between when the eggs were laid and the second or early second instar. On this basis, Dr Dadour put the egg deposition at midnight on 16 September 1995 on a presumption, because he did not know how much artificial light there was so he presumed that the fly would not be flying at night. Dr Dadour said that the particular fly likes to lay its eggs generally on a body that is up to four, five or six hours old, freshly killed. He could not rule out a fly depositing its eggs on a body or wound area older than that. He did qualify that statement:
"… Because these flies come in at different times, if the body was older we would have expected to see secondary strike flies or tertiary strike flies. This particular one was the only one that was present so it must have been very early on after death that the fly struck the body. "
43 Given all of that Dr Dadour put the time of death in the afternoon of 16 September 1995 which was 2-1/2 days from the autopsy.
44 Dr Dadour finished his evidence-in-chief by explaining that his opinion was no more than a prediction. He explained it this way:
(Page 14)
- "Is there any reason why you employ the term 'predict' in coming to your conclusion?---Yes, because there's a few assumptions in all of this so we can't be certain. It is basically based on probabilities. Science is not full of certainties, it is full of probabilities; so we have to say basically that we predict this time.
Certainly, and this is by no means a criticism of you, but if in fact you had been privy or someone had been able to give you the kind of information that you were lacking, are you able to say whether or not that would have made a difference to your findings and indeed perhaps the ultimate precision or accuracy of your findings?---That's correct, yes, it would have because forensic entomology is one of these sciences that is old in its history but fledgling in its use. We get more and more cases where we are used and we get then to set up our weather stations and look at these sorts of parameters, more so now than we used to - and when I say now, that is in the last 2 years. So, yes, it would have helped, knowing a lot more things about this particular case."
45 In cross-examination he was asked:
"… is it fair to say that in coming to the 16th, you and Dr Cook have built into that prediction, that finding a number of possible errors and miscalculations or something of that nature?---Yes, we try to do that, yes."
46 He explained that everything was over-estimated. He was asked:
"Whilst there are a number of ifs and whats and better information is always desirable, but nevertheless at the end of the day, given all that you have, your prediction has a fairly high degree of accuracy, has it not?---I would say so, yes.
Yes. So when you say that these eggs would have deposited on about mid afternoon of 16th - -?---Or early afternoon, yes. Somewhere around there.
Somewhere around about there?---Post-lunch.
Death, of course, could have taken place around about lunchtime of the 16th?---Yes, I guess so, yeah.
(Page 15)
- About 12 o'clock or thereabouts?---Yeah.
I think you have described the science and your findings before, that it is a high level of probability that what you say is correct. What you and Dr Cook say?---Yes, I think so.
Separately and collectively?---Yeah, I think so, yes. Still it's a prediction."
The appellant's argument
47 In essence, the appellant's submission is that the evidence of Dr Dadour was uncontroverted. The Crown relied upon it. The jury were required to accept the evidence that death had occurred sometime during the day of 16 September 1995. On that day there was no evidence to suggest that the deceased had been on the chicken farm or that the appellant was seen with or near him. The Judge ought to have so directed the jury. The jury's failure to apply Dr Dadour's opinion has caused the verdict to be unreasonable.
48 We are unable to accept the submission. The Crown case at all times was that it was unable to specify the time or place of death. From the outline of the circumstantial evidence earlier in this judgment, it was open for the jury to be satisfied beyond reasonable doubt that, at some stage in the period specified in the indictment, the appellant did wilfully murder the deceased.
49 The Crown was obliged to lead the evidence of Dr Dadour, but it was not thereby bound to accept that evidence uncritically. The Crown has a duty to lead material evidence which it regards a credible even though such evidence may be exculpatory. It is unnecessary to explore whether there may be limits on this duty insofar as it concerns expert evidence: Velevski v The Queen [2002] HCA 4. In this case the Crown led the evidence. The Crown was not obliged to put to the jury that it must accept the evidence of Dr Dadour as to time of death. The jury were obliged to examine all the evidence and all the circumstances. The opinion evidence of Dr Dadour cannot be isolated from the other evidence which pointed to the appellant as the offender.
50 Dr Dadour himself described his opinion as to the time of death being the day of 16 September as only a prediction, albeit one which in his view had a high degree of probability. As he is looking back in time it is not strictly correct to call his opinion a "prediction". The use of the
(Page 16)
- term by him however reinforced that he was using the available information to form an estimation of the time of death. Some of that information is measurable. The size of the instars is measurable and may be compared with similar measurements taken at different stages of an instar's development. Some of the information is derived from measurable matters with assumptions made based on experience. The calculation of temperature at Casuarina compared with the known temperature at Jandakot some distance away is an example. The assumption of a four degree rise in temperature by comparing a wheelie bin with a car boot may be of that character though there are other unknown variables, such as the effect of sun on the bin. Some information is completely unknown. The state of the bin lid, whether open or closed, and over what period, is of this character, as well as whether the bin was kept in the dark or the light.
51 In assessing the weight to be given to Dr Dadour's prediction, and indeed the opinion of Dr Margolius, as to time of death, of critical importance is the condition of the wheelie bin, particularly whether the lid was open or closed at any time. Of course, neither Dr Margolius nor Dr Dadour could know the answer to this critical question and, unsurprisingly, no evidence was led about it. The lack of knowledge about the lid renders Dr Dadour's prediction as to the time of death no more than an estimation based on assumptions which may or may not have particular validity. If the lid was closed for a substantial period, that would affect both the darkness of the bin, the temperature within the bin and even the ability of flies to access the bin. The jury was required to evaluate Dr Dadour's prediction very carefully, but not in a vacuum.
52 The trial Judge noted that to assist the jury in relation to the date of death they had the evidence of Dr Margolius and Dr Dadour whom the trial Judge described as very highly qualified.
53 Later the Judge set out the evidence and then said:
"The Crown puts to you that that is no more than a prediction but, of course, Dr Dadour said that the conclusion he reached had a fairly high degree of accuracy and he said that the death could well have taken place at about 12 o'clock on 16th September. He put it at a fairly high degree of accuracy and that is the evidence of an impartial expert witness supported by Dr Cook who gives you, with a fairly high degree of accuracy, the time of death.
(Page 17)
- If you accept his evidence, that of course is very pertinent because you then focus, as well as everything else, on the 16th. That is really essentially what Mr Singleton properly put to you because on the day before the 16th the farm was buzzing with activity, with people coming around on the days afterwards because the property had been sold to Mr Warringer (sic) and there were people coming backwards and forwards and inspecting the property, I suppose, getting ready for a takeover with all that entails."
54 We are satisfied that the jury had the evidence of Dr Dadour quite clearly put before them for their consideration as part of the overall case.
55 We do not consider that the jury were obliged to accept that evidence as to the time of death. It was open to the jury on the whole of the evidence to conclude that, although they may not be satisfied as to when and where the deceased met his death, nevertheless it was at the hand of the appellant who intended to kill him.
56 We have conducted a review of all the evidence and do not consider the jury's verdict to be unreasonable or against the weight of evidence. Rather it was open to the jury to be satisfied as to the guilt of the appellant. Consequently the appeal is dismissed.
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