Munmurrie v The State of Western Australia

[2007] WASCA 184

MUNMURRIE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 184
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:130/2005	Heard:	8 AUGUST 2007
Coram:	PULLIN JA BUSS JA MILLER JA	Delivered:	7/09/07
No of pages:	44	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
Category:	A
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Parties:	MICHAEL PATRICK MUNMURRIE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal Manslaughter Circumstantial case Whether verdict of guilty unsafe Whether trial Judge directed jury adequately on cause of death Whether direction on inferences sufficient Whether trial Judge required to identify to jury any inferences consistent with innocence Criminal law and evidence DNA evidence Whether admissible Whether relevant to cause of death Failure to call person who actually performed tests Inference to be drawn from blood on seat of motor vehicle Whether warning should have been given about misuse of items found in boot of vehicle Evidence of prior assaults on deceased by appellant Whether jury sufficiently warned of the use to which evidence could be put
Legislation:	Nil
Case References:	Barca v The Queen (1975) 133 CLR 82 Buttsworth v The Queen (2004) 29 WAR 1 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Christie v The Queen [2005] WASCA 55 Cook v The Queen (2000) 22 WAR 67 Edwards v The Queen (1993) 178 CLR 193 Greer v The Queen, unreported; SCt of WA; Library No 960120; 6 March 1996 M v The Queen (1994) 181 CLR 487 Plomp v The Queen (1963) 110 CLR 234 R v Beserick (1993) 30 NSWLR 510 R v Fuzzle Ahmed [1929] St R Qd 222 R v Gibb and McKenzie [1983] 2 VR 155 R v Grech [1997] 2 VR 609 R v Jarrett (1994) 62 SASR 443 R v Kotzmann [1999] 2 VR 123 R v Mullen (1938) 59 CLR 124 R v Nieterink (1999) 76 SASR 56 R v Taufahema (2007) 81 ALJR 800 Roberts v The State of Western Australia [2007] WASCA 48 Sharwood v The Queen [2006] NSWCCA 157 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Stevens v The Queen (2005) 80 ALJR 91 Tully v The Queen (2006) 81 ALJR 391 Woolmington v Director of Public Prosecutions [1935] AC 462

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MUNMURRIE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 184 CORAM : PULLIN JA

BUSS JA
MILLER JA

HEARD : 8 AUGUST 2007 DELIVERED : 7 SEPTEMBER 2007 FILE NO/S : CACR 130 of 2005 BETWEEN : MICHAEL PATRICK MUNMURRIE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : BLAXELL J

File No : INS 178 of 2004

Catchwords:

Criminal law - Appeal - Manslaughter - Circumstantial case - Whether verdict of guilty unsafe - Whether trial Judge directed jury adequately on cause of death - Whether direction on inferences sufficient - Whether trial Judge required to identify to jury any inferences consistent with innocence

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Criminal law and evidence - DNA evidence - Whether admissible - Whether relevant to cause of death - Failure to call person who actually performed tests - Inference to be drawn from blood on seat of motor vehicle - Whether warning should have been given about misuse of items found in boot of vehicle - Evidence of prior assaults on deceased by appellant - Whether jury sufficiently warned of the use to which evidence could be put

Legislation:

Nil

Result:

Leave to appeal granted

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr D J Ross QC & Ms K M Farmer
Respondent : Mr R E Cock QC & Mr M G Nicol

Solicitors:

Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Barca v The Queen (1975) 133 CLR 82
Buttsworth v The Queen (2004) 29 WAR 1
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Christie v The Queen [2005] WASCA 55
Cook v The Queen (2000) 22 WAR 67
Edwards v The Queen (1993) 178 CLR 193
Greer v The Queen, unreported; SCt of WA; Library No 960120; 6 March 1996

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M v The Queen (1994) 181 CLR 487
Plomp v The Queen (1963) 110 CLR 234
R v Beserick (1993) 30 NSWLR 510
R v Fuzzle Ahmed [1929] St R Qd 222
R v Gibb and McKenzie [1983] 2 VR 155
R v Grech [1997] 2 VR 609
R v Jarrett (1994) 62 SASR 443
R v Kotzmann [1999] 2 VR 123
R v Mullen (1938) 59 CLR 124
R v Nieterink (1999) 76 SASR 56
R v Taufahema (2007) 81 ALJR 800
Roberts v The State of Western Australia [2007] WASCA 48
Sharwood v The Queen [2006] NSWCCA 157
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Stevens v The Queen (2005) 80 ALJR 91
Tully v The Queen (2006) 81 ALJR 391
Woolmington v Director of Public Prosecutions [1935] AC 462


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1 PULLIN JA: I agree with Miller JA.

2 BUSS JA: I agree with Miller JA.

3 MILLER JA: This is an application for leave to appeal against conviction. Roberts-Smith JA ordered on 7 February 2007 that the application for leave be heard together with the appeal. An order was also made that the application for an extension of time to commence the appeal be heard with the appeal. However, there is no requirement for an extension of time, as the notice of appeal was filed within time. It was filed within 21 days of the date of sentencing: s 28(3) and (4), Criminal Appeals Act 2004 (WA).

4 The appellant's conviction was for the crime of unlawful killing. The appellant had been charged on indictment that, on or about 5 January 2004 at Carnarvon, he wilfully murdered Gayle Joanne Noble ("the deceased") and, in the alternative, on the same date and at the same place murdered her. At the close of the prosecution case, there was a submission that the appellant had no case to answer. The learned trial Judge acceded to the submission insofar as the indictment alleged wilful murder or murder, but ruled that the trial should proceed in respect of the alleged offence of manslaughter. An amendment to the indictment was directed and a fresh indictment filed, in which the appellant was alleged to have committed the crime of unlawful killing.

Grounds of appeal

5 The appellant seeks leave to appeal from his conviction for unlawful killing on six grounds. They are as follows:

"1. The learned trial judge erred in law and fact in failing to properly direct the jury that the prosecution had to prove:

(a) that the deceased did not die from natural causes;

(b) that someone other than the Appellant did not cause her death;

(c) that even if the Appellant caused her death it was not an accident.


2. The learned trial judge erred in law and fact by misdirecting the jury on the drawing of inferences

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(a) by failing to direct the jury that the prosecution must prove that there was no other inference than that the Appellant killed the deceased;

(b) by directing the jury to determine whether there were inferences consistent with innocence or pointing away from guilt which could reasonably be drawn.

3. The learned trial judge erred in law and fact in allowing items of evidence containing and not containing DNA evidence in to evidence, when such evidence was inadmissible

(a) by failing to be relevant to a cause of death;

(b) by the state's failure to call the person who performed the testing; Alternatively, even if the items were admissible,

(c) His Honor's [sic] should not have invited the jury to infer that the blood of the deceased on the seat cover came to be there on 5 January 2005; and

(d) His Honor's [sic] should have warned the jury against the misues [sic] of such items.


4. The learned trial judge erred in law by failing to warn the jury that prior assaults by the Appellant

(a) should not be used to show that the Appellant was the sort of person who was likely to have assaulted Ms Noble so as to kill her;

(b) were uncharged acts which had not been proven beyond reasonable doubt.


5. The verdict is unsafe and unsatisfactory in that it was unreasonable and has occasioned a miscarriage of justice in that a Jury properly instructed could not be satisfied beyond reasonable doubt that an offence had been committed let alone an offence by the Appellant.

Particulars
(a) The State could not prove the deceased did not die from natural causes. Cause of death was unknown.

(b) The Appellant denied causing the death of the deceased.

(c) None of the evidence led by the State, on its own or in combination with other evidence, could allow the Jury to come to a proper conclusion that the only reasonable inference open is that the Appellant caused the death of the deceased.

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6. The grounds set out above individually have occasioned a miscarriage of justice, alternatively, the cumulative or aggregate of the errors of law, misdirection's [sic] or failure to direct have caused the trial to miscarry."

6 These grounds of appeal are supplemented by extensive detailed written submissions of the appellant. In a number of respects, the submissions go outside the grounds of appeal. However, at the hearing of the appeal, Senior Counsel for the appellant sought only to sustain the grounds of appeal as drawn and it is those grounds with which I will deal.

The facts

7 This statement of the facts of the case is taken from a chronology prepared by the respondent. Senior Counsel for the appellant agreed that it was an accurate chronology, save that it failed to include a piece of evidence to which I will later refer.

8 The deceased was the de facto wife of the appellant. She met him in or about December 2002. They lived together at the Burringurrah community out of Carnarvon. It was a dysfunctional relationship, marked by numerous separations and violence.

9 During a period in September or October 2003, when the deceased and the appellant had separated, the appellant formed an intimate relationship with one Patricia Dodd. The relationship ended when the deceased returned and she and the appellant resumed cohabitation.

10 The appellant assaulted the deceased on numerous occasions during the course of the relationship. The number, circumstances and extent of the assaults was in dispute, but the appellant admitted to four assaults, which included throwing a stick at the deceased at the Burringurrah community whilst the deceased was cooking kangaroo tails; throwing a stick at the deceased when she was behind a bush in Norseman and when her forehead was cut; punching the deceased to the eye as he was driving a motor vehicle in Norseman; and giving her a "backhander" in or near Mount Augustus.

11 The prosecution relied on a number of additional assaults. There were five in number and as follows:

(i) An assault by the appellant on the deceased in the house of Mervyn Lewis and Janet Campbell, when the appellant punched the deceased to the ground; jumped on her; stomped on her; beat her around the mouth and ribs; dragged her by the hair; and

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threatened her with a crowbar. This assault was denied by the appellant.

(ii) An assault by the appellant on the deceased in mid-September 2003, which led to the deceased attending the local nursing post with a number of injuries, which included a small laceration to the left eye; a black, swollen left eyelid; a tender left chest; a grossly swollen left hand; a laceration between the second and third fingers of the left hand; and a bruised right leg. This incident was admitted by the appellant, who said that all he did was throw a stick at the deceased as a result of which she suffered a fractured arm.

(iii) An assault in September or October 2003, when the appellant caused the deceased an injury to her lip and a lump to her forehead. The assault was denied by the appellant.

(iv) An assault at the house of Theresa Harris in Norseman, during which the deceased suffered a cut forehead and an injury to her hand. The appellant denied that this assault had occurred.

(v) An assault on or about 19 December 2003 at the house of Derrick Ryder (the deceased's son) in Carnarvon, where the appellant caused an injury to the lip of the deceased. The appellant denied that this assault had occurred.

12 During Christmas 2003, the deceased and the appellant stayed in Carnarvon with the deceased's son, Fabian Noble. It was intended that they would remain there until mid-January 2004.

13 The appellant owned a motor vehicle and on 30 December 2003, he and the deceased purchased new seat covers to be placed over the seats in the vehicle. They were put on those seats on that day.

14 On 1 January 2004, the deceased and the appellant, with other friends, went fishing at a remote bush location out of Carnarvon. It was described as Bush Bay.

15 On 5 January 2004, the deceased and the appellant were in Carnarvon. They spent most of the morning at the KARU Aboriginal Centre.

16 Derrick John Ryder was born to the deceased and Brian Ryder. Derrick Ryder saw his mother on 5 January 2004. She was staying with the appellant at Fabian Noble's house. Derrick Ryder went with the deceased and the appellant to the KARU Centre. He went in the vehicle

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of the appellant, which was a red Ford Falcon. He recalled that the vehicle had seat covers. He knew that the deceased and the appellant had bought new seat covers for the vehicle.

17 On the morning when Derrick Ryder went to the KARU Centre with the deceased and the appellant, it was the deceased who drove the vehicle from Reynolds Court to the KARU Centre. She also drove the car back from the KARU Centre to Reynolds Court. This was some time before lunchtime. Later, they went to Woolworths. Again, the deceased was driving and the appellant and Derrick Ryder were in the vehicle. From Woolworths, they went to Craig Street. The journey was taken in the appellant's vehicle and the deceased was driving. They remained at Craig Street for about half an hour.

18 It appears that there were two visits to Craig Street and there was drinking at that location. The deceased and the appellant were drinking Tawny Port. They left Craig Street to go back to Reynolds Court in the appellant's vehicle, which was again driven by the deceased. In short, the deceased appears to have driven the appellant's vehicle several times on the day of 5 January 2004, although until precisely what time is not clear. Derrick Ryder described his mother as "pretty happy" during the course of the afternoon of 5 January 2004. She had no injuries and was in good health.

19 In the afternoon, or early evening, of 5 January, the deceased and the appellant left the house of Cedric Oliver in Acacia Way, Carnarvon, to drive to a liquor store to buy port.

20 The appellant later admitted that he and the deceased had a verbal altercation in the appellant's vehicle on the way to the liquor store. On this occasion, the appellant was driving the vehicle. The subject of the dispute was Patricia Dodd.

21 It is convenient to turn to the testimony of the appellant as to the events that then occurred. The appellant said that he and the deceased had gone to Al's bottle shop to get some port. The appellant drove to the liquor bottle shop. The port was purchased. The appellant then headed back out to "the village" and that was when an argument started. The "issue" of "Tricia" Dodd was raised.

22 The appellant said that he drove from the liquor store into Dewsons' carpark and out onto Reynolds Street. He corrected this to Cornish Street. His evidence then proceeded as follows:

(Page 9)

"Cornish?---Cornish. Cornish Street, and we parked there for a split-second and I said to Gayle, I said, 'Look, home's just there, we could go home,' and she said, 'No, no, no. You've got to take the port back now.' So I said, 'All right, let's go.' So we drove off down Cornish Street - main road there and as we was going over the road that's when things started happening.

Okay, what started happening?---She started talking about not wanting to go back out to the village, wanting to go to Coxy's, wanting to go to Babbage; this Trisha Dodd started being a conversational thing then I think.

Okay. You are driving?---Yes.

What happened then?---She yanks me by the hair. When she knocked it out of gear that's - - -

She knocked what out of gear?----The gear stick.

Yes?---She knocked it out of gear and that's when I hit the brakes - told her to get out and go home.

Did you stop?---Yes, I stopped.

All right. How did she appear to you in terms of alcohol intake at that stage?---She was well and truly intoxicated.

When she got out did she take anything?---Yeah. Because we had this - when we left from Craig Street Uncle Paul had a full cask and a half a cask in a bladder so that - we chucked - I chucked half a cask under the front seat.

When Gayle Noble left the car what happened in relation to that?---With the cask?

Half cask, yes?---Yeah, she took the half a cask.

After she left the car what happened in relation to the door of that vehicle? Did it remain open or shut?---When I first hit the brakes she'd opened the door and she had one leg out and one leg in and she still - she was raving on about me just wanting to go back to the village to see Patricia Dodd and I just kept telling her to get out, get out, go home, you know. She eventually got out and she was leaning on the door and she didn't slam or nothing, she sort of closed it and lent on the door and she was still raving on about Trisha Dodd and I just told her, 'I'll be back in a minute,' and I just flattened it.

What was she wearing?---Well, just - I can't remember the colour of the T-shirt but the trousers were blackish, greyish with yellow pockets and barefoot.

(Page 10)

…

What did you then do after she got out?---I went to - I ended up at the old tip.

How did you get there?---I drove there.

Did you see Gayle again after that?---No.

…

Why didn't you go back to the village?---Numerous reasons really. The Trisha Dodd situation and - because I was shelving out by then I flew past the turn-off and I just kept going until I hit the bitumen and that's when I went to the old tip.

You are talking about HMAS Sydney Drive being the bitumen?---Yes.

Then you went to the old tip. How long did you stay there for and what did you do?---I stayed there for a while. I was drinking, playing music, had a few can bongs.

A few what?---Can bongs.

Bongs. Cannabis?---Cannabis, yeah.

How long did you stay there for?---Timewise I cannot say but I do know that it was dark.

When you left?---When I left, yes.

Where did you go after you left?---I first went back to Fabian's house, then I went to - - -

You went to Fabian's house. What happened when you got to Fabian's house?---Because there was no lights on I - at that time right there and then I didn't believe they was there so I drove off. Because I didn't really consider it late in the sense that bedtime I just drove off and that's when I went to Craig Street.

Who was at Craig Street?---When I got there there was Raylene Oliver and a few kids."

23 Other evidence revealed that, from the time the appellant left the "party" to go to the liquor store until the time he was seen again, approximately three hours had passed. The appellant appeared at Raylene Oliver's home between 9.30 and 10 pm. He remained there for about an hour. When he departed, he left behind a red torch. This torch was later the subject of forensic testing. On its lens was found the presence of a DNA profile which matched that of the deceased. Scott Elliot Egan, a
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forensic scientist in forensic biology at the PathCentre in Perth gave the following evidence about it:

"As I'm holding the torch I have got the handle - the torch is in its upright normal position. Where would those stains be?---On the lower half in towards the centre.

Lower half in towards the centre?---Yeah, that's correct. Two very light-brown stains just visible to the naked eye, probably in the range of approximately one centimetre in diameter each.

Was there any particular shape to those stains?---They were roughly circular but very dilute and very light brown. It's very difficult to say what type of staining they are.

In relation to the DNA, you say that the DNA profile that was found on the stains on the torch and the two stains that you have mentioned on the left side of the car seat - driver's side car seat cover, that profile matches the profile of the deceased woman by your analysis?---That's correct, yes.

What's the - have you done any probability statistics in terms of the chance of finding that profile elsewhere?---Yes, we did. The probability of finding that DNA profile if the cellular material recovered from stains 1 and 2 on the seat cover as well as stains 1 and 2 on the torch lens had come from someone other than and unrelated to Gayle Noble is less than one in 19.3 million based on Western Australian population data."

24 The appellant denied in evidence that he had taken the torch to Raylene Oliver's. He said he had never seen the torch before and when it was produced at trial was the first time he had ever seen it.

25 At some time between 10 and 11 pm, the appellant visited the house of Rueben Jones (also in Carnarvon) and asked Jones if he had seen the deceased. The appellant said that Patricia Dodd's name was mentioned and he asked where she was. He said he was told she was just around the corner. He asked Jones to show him where, but he said Jones would not go, so he decided to go and have a look. He walked around the corner and heard Patricia Dodd "[sing] out to [him]". He then spoke to her and returned with her to the Jones' house, where he spent the night with her. He told Patricia Dodd that he had finished with the deceased and he wanted to start a new relationship with Patricia.

26 On the morning of 6 January 2004, the appellant left Carnarvon with Patricia Dodd and others and drove to Geraldton. The appellant said that he did this because Delores Roberts wanted to go to Geraldton, but her car had broken down. The trip to Geraldton was taken in the appellant's

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vehicle. The appellant said that the plan was to go to Geraldton, spend a night there and return.

27 The appellant stayed in Geraldton with Patricia Dodd until he was arrested on 10 January 2004 on warrants for outstanding fines. He was placed in custody at the Greenough Regional Prison.

28 On 12 January 2004, the deceased's family reported her as a missing person. Meanwhile, some time between 10 and 13 January, after the appellant had been taken into custody in Geraldton, Patricia Dodd cleaned the appellant's vehicle. She threw away a job network card belonging to the deceased, which was found in the vehicle.

29 On 13 January 2004, police seized the appellant's vehicle in Geraldton. Numerous items within it were seized and were forensically examined. The driver's side seat cover was described as a red and black moulded seat cover. It was in a good, but stained condition. Two red-brown stains were found on the backrest on the left side. The evidence of Mr Egan was that they gave a positive reaction for blood when screened chemically. The stains were sampled and submitted for DNA analysis.

30 Mr Egan described the stains as "smear-type stains. They weren't droplets but they were more smear-type stains, as if they'd been put on there and moved around". He said that if a person was sitting in the seat, he would expect the blood to be around the lower back, on the left-hand side, or even possibly around the area where the elbow of the left arm would be.

31 A DNA profile was obtained from the stains. It was consistent with the reference samples from the T-shirt labelled as coming from the deceased. Other stains were found on the seat, which gave a positive reaction for blood, but no DNA profile could be taken, and it was impossible to say whether the blood was human or animal. These stains were respectively where the left-hand upper back of a person sitting in the driver's seat would be touching the seat; where the left buttock would be located on the driver's seat; and where the back of the right knee would be located on the driver's seat.

32 Various items from the boot of the vehicle were analysed and positive reactions were obtained for blood. This was thought to be probably animal blood, because no DNA could be extracted from it.

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33 Mr Egan was asked in cross-examination about the volume of blood that may have caused the stains that he observed on the driver's seat of the vehicle. He answered as follows:

"No, no. No, sorry, that was the other question. The other area?---Okay. If you were talking about the volume of blood that would be deposited on there I wouldn't be able to say what volume of blood would make that sort of stained area. I couldn't say.

You can't say? Can you say what percentage of that area was covered with blood?---All the back rest. The entire back rest, maybe 10 per cent and the seat part of the cover maybe 20 per cent. They are very rough estimates though."

34 The matter was pursued by the learned trial Judge and further answers were given:

"Mr Egan, if you go back to when you were asked about the volume of the stains and the upper back rest area of the driver's seat cover. Remember you were giving evidence about that just a little while ago?---Yes. Yes, your Honour.

You said something about 10 per cent of the back rest cover and 20 per cent of the seat cover had something on them and I'm not quite sure what you're saying there. What are you saying there?---As I understand it the question was asked, 'What percentage of the back rest and the seat rest were covered with blood?' so my approximate estimations of the area that gave us reactions for blood were approximately 10 per cent of the back rest gave us a reaction for blood, and approximately 10 to 20 per cent of the seat bit had a reaction for blood.

Of the actual surface area?---That's correct.

Now, there is a question which has got to be asked here and no-one has asked you but I think I've got to ask it and that is, there has been evidence that before the seat cover was provided to you that someone cleaned the interior of the vehicle with suitable cleansers, could that have some bearing upon the area? If there's, say, a small stain on a seat cover and it's cleaned can that spread it out in some fashion which would give the reaction that you get or not?---Absolutely. If a drop of blood was diluted and spread out over a larger surface area then absolutely, that could be a possible cause.

So that could explain why a stain might cover 10 per cent or 20 per cent, might have started off as a small area if it's been cleaned?---That's correct. It's a possibility for sure."

35 On 26 January 2004, the appellant was interviewed by detectives. There were two interviews, the first of which was conducted at
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approximately 11.22 am on 26 January 2004. That interview concluded at 2.52 pm. It was resumed shortly afterwards, and the second interview concluded at 6.09 pm.

36 The interviews are extensive. The transcript of the video record of interview runs to over 100 pages for the first interview and 56 pages for the second. Certain sections have been excised, which would reduce the number of pages, but not greatly.

37 During the course of the interviews, the appellant denied any involvement in the death of the deceased. The account given by the appellant in the first record of interview was as follows:

"A. Well, she didn't want to go back out there. She wanted to go home but I said, 'No, I'm just driving back there, you can just wait till we come back'. She said, 'No, I don't want to go out to the fucking village'. ... (indistinct) ... She knocked a gear - - knocked a gear out so I pulled up and she jumped out. She reckoned fucking Trisha Dodd or something - - Trisha Dodd was out at the village. That's when she said, 'Well, you - - go and look for her, that's why you want to go out to the fucking village for', and I said, 'Oh, well, I might as well'. Whereas if she hadn't said she was at the village I would have went back to the village. So I was in two states of mind, I think. So I just went straight out to - - straight through to the bitumen and went to the old tip and I sat there till it got dark and then I went back - - back into town.

...

Q. What was the last memory you have of Gail, seeing her?

A. In the rear vision mirror standing up looking and - -

Q. Was Gail crying?

A. No. She didn't look - - she didn't want me to go back out the village.

Q. So why didn't you go back to the village, Michael? You had Paul's port.

A. Yeah; because I - - like I said I was in two states because I know - - I'm thinking to myself if - - if I had of gone back down to the village and if she had of been there and fucking - - I just don't know. ... (indistinct) ... to the old tip to get my shit together."

38 There were numerous questions of the appellant which pursued the precise detail as to what had happened prior to the deceased's exit from
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the vehicle. It is unnecessary to detail them. In the second interview, the appellant said that he was at the tip for quite some time. He said that he drank most of "that full port there … had a few cones" and wanted to stay there until it got dark before he drove away. He was unable to say how long he had been at the tip, but said that it was a good while after the sun had gone down. Apart from drinking and having "a few cones", he had just played music. He had shouted because he was angry and eventually he had driven back to "Fab's house".

39 On 10 February 2004, the deceased's body was found by her relatives. It was off a dirt track on the way to Bush Bay. This is a remote bush location outside Carnarvon. It was an area with which the appellant was familiar. He and the deceased had gone to a location near it with friends on New Year's Day 2004.

40 When the deceased was found, she was wearing the same clothing that she had been seen wearing on 5 January 2004. She was barefooted. Her body was badly decomposed, and it was not possible to ascertain the cause of her death.

41 Dr Gerald Andrew Cadden was the forensic pathologist who examined, and conducted a post-mortem examination on, the deceased. He attended at a bush location outside Carnarvon, where the body was found. He described what he found in the following terms:

"Can you describe what you saw at that time?---I have provided a scene report for this purpose. The body was that of an adult female. She was obviously deceased. She was lying face upwards. She was in a state of decomposition. The body surfaces showed established decomposition change, widespread insect effect, drying of the skin such as there was mummification. There was exposure of parts of the skeleton. One could see into the body cavity from the exterior. The changes in respect to decomposition were well established."

42 Dr Cadden was unable to reach a conclusion about the cause of death because of the degree of decomposition. He said:

"When you say that, was there any reason why you were unable to come to any kind of conclusion?---The main reason both at Carnarvon and at the later autopsy was on account of the degree of decomposition. It's as simple as that.

Yes?---The severity of the decomposition."

43 The deceased did have a number of fractured ribs, but they were old fractures because they showed signs of healing. Nine ribs fell into this
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category. Dr Cadden's opinion was that the broken ribs had been sustained between two and eight weeks prior to her death. No other fractures were identified.

44 Dr Cadden's ultimate conclusion was as follows:

"Doctor, I just want to ask you a couple of questions. In relation to the cause of death, I take it that you are unable to determine a cause of death?---That's right. The cause of death at the time of the initial examination was left as undetermined pending ongoing investigations and inquiries. When those investigations were complete, specifically by way of the examination of what brain tissue one had and the limited toxicology that became available, then - and also to my recollection the x-ray review, at the conclusion of certainly those first two it was decided to proceed to say that the cause of death was unascertainable.

With a conclusion such as that, I take it that you were unable to exclude natural causes?---That's correct.

Things like heart attack, liver malfunction, those sorts of things?---Yes. Because of the absence of organs that follows on.

Likewise, you are not able to exclude death by a blow to the head, for example?---I'm not able to exclude death on account of a blow to the head.

Because you would accept, doctor, that somebody can die with one simple blow to the head which does not cause any fracturing to any bony part of the body. Is that right?---That is correct, yes.

Likewise, you are unable to exclude - are you able to exclude asphyxiation?---No.

Are you able to exclude strangulation?---That's part of a succession, that's correct. I'm not able to exclude that.

Doctor, are you able to age the time of death - are you able to determine the time of death?---Only in terms of weeks and in the broad time frame of being in keeping with the period of being known to be missing, which I understand was about five weeks. The changes that were seen can occur in a very varying time frame. One cannot be overly precise about the time frame. A body that's left out to the elements - has become exposed to the elements, to put it another way, can deteriorate very rapidly. There can be variation even in numbers of weeks so all I can really say it's in keeping with the time frame I was given, which was of five weeks. Certainly the changes you would anticipate would take weeks to occur."

45 On 12 May 2004, the appellant was charged with the wilful murder of the deceased.

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Grounds of appeal

Ground 1

46 This ground contends that the learned trial Judge erred in failing to direct the jury that the prosecution had to prove: (a) that the deceased did not die from natural causes; (b) that someone other than the appellant did not cause her death; (c) that, even if the appellant caused her death, it was not an accident.

47 It was contended that the prosecution had a duty to prove beyond reasonable doubt that the deceased did not die from natural causes. It is also said that "[b]y parity of argument" the prosecution had to prove beyond reasonable doubt that the deceased did not die at the hand of another. Further, if the jury "were left in a fix" about whether the appellant caused the death of the deceased, the prosecution still had to prove that the death at his hand was not an accident. I cannot accept these propositions.

48 In the first place, it was not for the prosecution to prove that the deceased did not die from natural causes. It was for the prosecution to prove beyond reasonable doubt that the appellant unlawfully killed the deceased. The cause of death of the deceased could not be ascertained. The advanced stage of decomposition of the deceased's body precluded any cause of death being found. Because of this, the forensic pathologist was unable to exclude death by natural causes. In the same way, he was unable to exclude death from any other cause.

49 The prosecution did not rely on evidence as to the cause of death. There was simply no evidence about it. In Chamberlain v The Queen (No 2) (1984) 153 CLR 521, Gibbs CJ and Mason J at 568 made the following observations about a case in which many aspects of the crime remain unexplained:

"It is true that many incidents of the crime remain unexplained. However, the Crown does not bear the onus of solving all the mysteries that may have attended a crime, or of establishing in every detail how it was committed, provided that it is proved satisfactorily that the crime was committed, and that the accused committed it."

50 In this case, the learned trial Judge accurately summarised the evidence of the forensic pathologist and told the jury in clear terms that this evidence could not establish one way or the other whether death was due to natural causes or as a result of foul play:
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"The body was also in a very advanced state of decomposition and the subsequent forensic examination and post-mortem examination could not reveal a cause of death. However, there was no sign of any penetrating injury through the clothing or an injury affecting the bone structure. There was no fracture to the skull and the small bone at the front of the throat was intact. The evidence shows that strangulation often results in that bone being damaged.

In summary, the medical evidence cannot suggest one way or the other, whether the deceased has died as the result of natural causes or as the result of foul play."

The jury could have been under no misapprehension on this issue and, in my opinion, the ground advanced has no merit.

51 In Roberts v The State of Western Australia [2007] WASCA 48, Roberts-Smith JA (with whom Wheeler JA agreed) referred to the judgment of Pidgeon J in Greer v The Queen, unreported; SCt of WA; Library No 960120; 6 March 1996 where, at 49, Pidgeon J said, inter alia:

"As I see the law, it is open to conclude that if it were proved that a person did the act to cause the death followed by disposing of the body so it is not recovered and with nothing else being known, he can be convicted of murder."

52 Roberts-Smith JA at [154] - [155] added:

"154 His Honour went on to discuss a number of cases in which it had been held that both the fact of death and the necessary mental element in the accused could be inferred notwithstanding the absence of a body or a cause of death. They were R v Horry [1952] NZLR 111; R v Onufrejczyk[1955] 1 QB 388 and R v Camb (1948), unreported; Notable British Trials; Edited G Clark; William Hodge & Co Ltd.

155 I discussed those authorities and others on this point in Macartney v The Queen(2006) 31 WAR 416 at [438] - [455]. I adhere to what I said there, but do not now repeat that. What the cases do show in my opinion, is that the drawing of inferences is very fact specific and it is not the principle which is in question here, but rather whether the evidence in the individual case goes far enough to enable a particular inference to be drawn."

53 It is therefore quite clear that absence of proof of a cause of death does not mean that a jury cannot conclude by inference that an accused person caused the death of the deceased.

54 The prosecution was not required to establish that somebody other than the appellant did not cause the death of the deceased. Its task was to

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prove beyond reasonable doubt that it was the appellant who caused the death of the deceased. The prosecution case was not concerned with the question "Who else?" may have caused the death of the deceased. The proper investigation of the jury was limited to the question whether the appellant was responsible for the crime. Speculation as to whether somebody else may have caused the death of the deceased would have been entirely inappropriate. No-one else was alleged by the appellant to have caused the death of the deceased.

55 In Christie v The Queen [2005] WASCA 55 the appellant contended that the verdict of the jury was unsafe, unsatisfactory and not reasonably open to the jury. A particular of the ground asserted that "there were a number of other persons with proven motive and opportunity to have killed the deceased at or around the time of her disappearance". McKechnie J (with whom Le Miere and Jenkins JJ agreed) pointed out that even if it was accepted that others may have had a motive to kill the deceased, and that there were many people who had a temporal opportunity to do so, no other person nominated by the defence conducted themselves in a manner indicative of guilty knowledge. Nor was any other person physically linked to the deceased by blood on any article of clothing. The various persons who were nominated by the appellant as having a proven motive or opportunity to kill the deceased were five named individuals and taxi drivers/strangers whom the deceased had invited to her unit.

56 At [62] McKechnie J said:

"These were matters for the evaluation of the jury. It was open for the jury to conclude that the possibility other persons might have had motive and opportunity did not displace the circumstances linking the appellant to the killing so as to cause a reasonable doubt in their minds."

57 Christie v The Queen (supra) was a case in which the defence actually nominated persons who may have had motive and opportunity to kill the deceased. The decision illustrates that in such a case the jury may conclude that there is a possibility that other persons may have had the motive and opportunity to kill the deceased, but it does not suggest that in every case in which there has been a death and an accused person is alleged to have caused that death, that the prosecution must prove that no other person caused the death. To the contrary, it is only where the defence raises the spectre of another killer, that the matter becomes an issue for the jury.

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58 The appellant contends that the learned trial Judge should have directed the jury that, even if they rejected the denial by the appellant that he was in any way connected with the death of the deceased, they still had to be satisfied beyond reasonable doubt that death was not an accident. Reliance was first placed upon what was said by Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 210 - 211. However, that passage has nothing to do with the present case. It deals with how lies told by an accused person should be dealt with if a lie is relied upon to prove guilt. As their Honours said, at 211:

" … the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'."

59 In the present case, the prosecution did not rely upon any lies told by the appellant. The appellant's contention that he had nothing to do with the death of the deceased was his defence to the allegation made against him. It was not suggested by the prosecution that it was a lie spoken from a consciousness of guilt.

60 Two cases were relied upon to support the submission that in a circumstantial case like the present, it was incumbent upon the trial Judge to instruct the jury on the defence of accident, notwithstanding that it was not a defence raised by the appellant. The first case relied upon was R v Fuzzle Ahmed [1929] St R Qd 222. This was a case that is now of doubtful import because it preceded the seminal case of Woolmington v Director of Public Prosecutions [1935] AC 462. Macrossan SPJ, delivering the Judgment of the Court of Criminal Appeal in Fuzzle Ahmed, said that the proper direction to give to a jury in a case in which excuse for a killing was raised by the accused was as follows at 232:

"…'It is unlawful to kill any person unless such killing is authorised or justified or excused by law.' The jury should then be told that the burden of proving authority, justification or excuse rests in each case on the person alleging the existence of such authority, justification or excuse. In the event of any defence based on authority to kill or on justification or excuse for killing having been raised for the accused, or if it appears to him that any such defence is suggested by or might possibly have been raised on the evidence, whether for the Crown or for the accused, the Judge should then proceed to explain to the jury the provisions of the Code relevant to such defence or possible defence."

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61 Since Woolmington v Director of Public Prosecutions, there is no longer any burden of proof cast upon an accused person to prove authority, justification or excuse. Leaving that to one side, it is apparent from the quotation that it is only where authority, justification or excuse is raised for the accused, or where it appears that any such defence is suggested or might possibly have been raised on the evidence, that a trial Judge should explain the defence to the jury. The case is no authority for the proposition that where the accused does not raise any foundation for the defence of accident, the trial Judge has an obligation to direct the jury in relation to that defence.

62 The second case referred to was R v Mullen (1938) 59 CLR 124. This case was post-Woolmington v Director of Public Prosecutions and (not surprisingly) the High Court concluded that no burden is cast upon an accused person to satisfy the jury on the issue of accident. The case was concerned with "what rule should be applied when a defence of accident is raised to a charge of murder": see Latham CJ at 128. The defence was that the victim was shot accidentally in the course of a struggle. This clearly raised the defence of accident.

63 More recently, in Stevens v The Queen (2005) 80 ALJR 91 the High Court made it clear that the defence of accident only becomes a live issue in a trial where there is a foundation in the evidence for the defence to be put. Kirby and Callinan JJ each pointed out that there was evidence from which a reasonable jury could have concluded that the death of the deceased was an event which occurred by accident. Kirby J said at [71] that there was evidence of firearms experts to the effect that there was a defect in the firing mechanism of a rifle which resulted in a propensity for it to discharge if it was hit. The appellant had given sworn evidence before the jury that he had lunged at the deceased and would have "whacked into the gun" as he tried to grab it. If the jury accepted that evidence it was open to accept that the actions described by the appellant might have constituted the initiating force that caused the rifle to discharge the fatal shot that killed the deceased. Callinan J at [149] also referred to the evidence of a firearms expert. His Honour concluded that the defence of accident was raised on the evidence and was available as a defence to the charge of murder faced by the appellant. This case highlights the need for an evidentiary basis for the defence of accident before it can be put to the jury. The jury is not entitled to "engage in groundless speculation": Barca v The Queen (1975) 133 CLR 82 at 105.

64 In the present case, there was no evidentiary basis upon which the defence of accident could have been addressed by the learned trial Judge

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or considered by the jury. The defence was simply not open on the evidence at trial.

65 It was the obligation of the learned trial Judge to identify for the jury what the issues were in the case. It would, in my view, have been positively wrong to have raised the question of accident in circumstances where there was no foundation for it on the evidence at the trial. In this respect, I would respectfully rely upon the observations of Hayne J in Tully v The Queen (2006) 81 ALJR 391 at [79] to the following effect:

"It is of the first importance to the proper administration of criminal justice that trials not be made longer or more elaborate than they need to be. That object is defeated if trial judges do not focus the minds of the jurors upon what are the real issues in the case and confine the instructions that are given to the jury to only so much of the law as the jury needs to decide those issues. Prudence may well be said to suggest that the judge should err on the side of stating more rather than fewer issues. But it is important to recognise that doing that tends to defeat the object of confining the length and complexity of criminal trials to what is necessary for the attainment of justice. The trial judge must, therefore, steer a difficult course between stating only the real issues in the case, and stating too many issues for the jury's consideration, with consequent over-elaboration and prolongation of the trial. As Owen J said in Commissioner for Road Transport v Prerauer [(1950) 50 SR (NSW) 271 at 277], the first duty of the trial judge is 'to explain to a jury in a simple, understandable fashion the law which is applicable to the particular case before them' (emphasis added)."

66 In my opinion, there is no substance in ground 1 of the grounds of appeal.

Ground 2

67 This ground contends that the learned trial Judge erred by misdirecting the jury on the drawing of inferences. Two particulars are given. First, it is contended that the learned trial Judge was obliged to direct the jury that the prosecution must prove that there was no other inference than that the appellant killed the deceased. Second, it is contended that the learned trial Judge was obliged to specifically direct the jury on any inferences consistent with innocence which could reasonably be drawn.

68 This ground was confined in oral argument to a contention that the learned trial Judge failed to direct the jury in relation to matters which might give rise to a drawing of an inference consistent with the innocence of the appellant.

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69 In my opinion, the learned trial Judge gave a model direction to the jury on the question of the drawing of inferences and sufficiently related that direction to the facts of the case. The relevant portion of the direction was as follows:

"From all of those circumstances the prosecution asks you to draw the inference that Gayle Noble was killed by the accused. As I have already explained to you, you can only make the finding that the accused killed Gayle Noble if [sic] are satisfied beyond reasonable doubt that that is indeed what happened. What I now need to explain to you are the rules that apply when there is no direct evidence as to an essential issue and when you are asked to draw an inference as to the accused's guilt.

When it comes to inferences and considering the evidence there is no room for guessing or for speculation or conjecture or for looking for theories unsupported by the evidence. However, you are entitled to draw inferences from facts which you have in the first place found to be established. An inference is simply a logical deduction or conclusion arising from the facts as you find them to be. However, it is most important for you to realise that before you draw any inference against the accused you must be satisfied that that is the only inference which can reasonably be drawn consistent with the proven facts.

If you think there may be some alternative reasonable inference which can be drawn and which is open on the proven facts then you should make no adverse inference against the accused. When you think about it that is just a simple rule of fairness consistent with the standard of proof beyond reasonable doubt that if you have got a given set of facts and there is one inference or logical conclusion you can draw which would tend to suggest to his [sic] guilty and there is another inference which could be consistent with his innocence then the only fair thing is not to draw the adverse inference. It is only when the only adverse inference points to his guilt that you can draw that particular inference."

70 The learned trial Judge then went on to refer to the DNA evidence. As to that his Honour said:

"… It's a question of fact but obviously, I suggest, if you come to the conclusion that the inference that it might not be her blood is not a reasonable one, then therefore the only reasonable inference is that it is her blood. Because that's an inference which tends to implicate the accused in what happened on the night it's an adverse inference but you can draw that adverse inference because it's the only reasonable inference. That's the sort of process you go through."

71 The learned trial Judge gave other examples and it is unnecessary to detail them all. It is sufficient to say that in each case it was made clear that the jury could only draw an adverse inference (adverse to the accused
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because it tended to implicate him in the death of the deceased) if the jury considered it was the only reasonable inference open. His Honour said clearly that if the jury thought there was an alternative possible inference that the deceased had died some time after 5 January, the jury should not draw the adverse inference against the accused.

72 Senior Counsel for the appellant complained that the learned trial Judge did not remind the jury of strong pieces of evidence which pointed away from knowledge of the appellant as to where the victim was on 5 January 2004. This evidence consisted of the evidence of witnesses to the effect that the appellant asked a person on the evening of 5 January whether she had seen the deceased and the evidence of Ms Dodd that the appellant had told her in the kitchen on the evening of 5 January that he was going to tell the deceased the following day that he wanted to finish with her and that he wanted Ms Dodd. He had allegedly added that the deceased was "probably sleeping with other men out there or wherever she is".

73 When the learned trial Judge summed up the defence case he made it clear that the defence contended that the jury could not conclude that the only reasonable inference open on the evidence was that the deceased was killed by the appellant. The various reasons relied upon by the defence were put:

"The defence contends that that is not the only reasonable inference and that you must have a reasonable doubt as to what happened to Gayle Noble for a number of reasons. Firstly, there is no evidence to positively indicate that Gayle Noble was killed. It is entirely possible that she died of natural causes, particularly when regard is had to her alcohol consumption.

The circumstances in which the body was found are also consistent with death by natural causes. She was lying, what the defence would say, in the open. There was no concealment in nearby bushes or an attempt at burial. She was visible because of the red shirt. There was no sign of damage to the clothing. The skull and the skeleton were intact and showed no signs of any injury that might have caused death.

It was put to you that the relationship between the accused and the deceased was not entirely bad and that they appeared to be getting on well while in Carnarvon. When the accused was first interviewed by the police he was forthcoming about his movements on the night that his wife went missing and he told them where they could find his clothing. The accused has explained why he left for Geraldton and remained there until his arrest, and you should accept his explanation.

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As to the DNA evidence, it's submitted that you should have regard to the fact that no blood at all was detected over extensive areas of the interior of the vehicle including the floor mats. You can accept and there is evidence that the deceased had been driving the vehicle within the previous few days and her blood on the driver's car seat could be explained by her having a minor wound on her elbow. Furthermore, the car was out of the control of the accused for a period while he was at Geraldton and the presence of the other blood on the car seat could be due to unknown activities of other people."

74 This brief summary of the defence case highlighted what the defence said were inferences open which were consistent with innocence. The addresses of counsel have not been transcribed, but it can be assumed from the learned trial Judge's summary of the defence contentions that inferences consistent with innocence were clearly articulated before the jury by defence counsel.

75 In my opinion, the learned trial Judge was not obliged to identify every possible inference open which was consistent with the innocence of the appellant. The question was whether the jury was satisfied beyond reasonable doubt that the only inference that could be drawn was one consistent with the guilt of the appellant. They were told that in considering this issue they could not draw such an inference unless it was the only one which was open. If any inference consistent with innocence was open, that was the inference that had to be drawn.

76 I do not consider that the learned trial Judge was obliged to specifically advert to the two conversations which the appellant relied upon on the evening of 5 January 2004. As the respondent points out, it was open to the jury to conclude that the appellant well knew at the time he made these statements that the deceased was already dead. It was open to the jury to conclude that the appellant was disingenuous when enquiring about the whereabouts of the deceased on the evening of 5 January.

77 In my opinion, there is no substance to ground 2 of the grounds of appeal.

Ground 3

78 This ground contends that the learned trial Judge erred in law and in fact in allowing items of evidence containing and not containing DNA evidence into evidence. It is contended that such evidence was inadmissible because it was not relevant to a cause of death and because the prosecution had failed to call the person who performed the testing.

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79 In the alternative, it is contended that even if the DNA evidence was admissible, the learned trial Judge should not have invited the jury to draw an inference that blood of the deceased on the seat cover came to be there on 5 January 2004 and the learned trial Judge should have warned the jury against the misuse of various items which were referred to.

80 I shall deal with each of these contentions in order. The first of them is that the DNA evidence was inadmissible because it was not relevant to a cause of death. In my view, it was clearly admissible evidence. I respectfully adopt the conclusion reached by Mullighan J in R v Jarrett (1994) 62 SASR 443 at 451 to the following effect:

"The starting point is that all evidence is admissible if it is relevant to a fact in issue and may only be excluded if it falls within one of the well-known policy grounds for exclusion or within one of the recognised grounds for the exclusion of evidence in the exercise of the trial judge's discretion. Expert evidence is no exception. Once it is determined that expert evidence is relevant to a fact in issue, and there is no reason on policy or discretionary grounds for its exclusion, it should be admitted even though it is contested and there is apparently credible expert testimony to the contrary: Chamberlain v The Queen (No 2) (1984) 153 CLR 521, per Brennan J (at 598):"

81 I also adopt his Honour's conclusion as to the admissibility of expert testimony on the subject of DNA evidence at 453:

"In my view, admissible expert testimony relevant to a fact in issue and of probative value may not be withheld from the jury. Once the expert testimony is found to be admissible, it should be admitted even though challenged and it is a matter for the jury, properly and adequately directed, to decide in the context of all of the evidence in the case, whether the evidence should be accepted: Commissioner for Government Transport v Adamcik (1961) 106 CLR 292. I also refer to the observations of the United States Court of Appeal, 4th Circuit, in United States v Baller 519 Fed 2d 463 (1975) cited with approval in R v Gilmore [1977] 2 NSWLR 935 at 939:

'Absolute certainty of result or unanimity of scientific opinion is not required for admissibility. (Every useful new development must have its first day in court. And court records are full of the conflicting opinions of doctors, engineers, and accountants, to name just a few of the legions of expert witnesses.) ... Unless an exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial or likely to mislead the jury, it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation ...'"

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82 The DNA evidence was clearly admissible. It was relevant evidence. Its relevance was not to the cause of death, but to the question whether the appellant was responsible for the death of the deceased. Stains that gave a positive reaction for blood and which contained a DNA profile consistent with (my emphasis) the deceased's DNA profile were found on the driver's seat cover of the appellant's car. Stains on a torch left by the appellant at Raylene Oliver's house on the night of 5 January 2004 were of material in respect of which the DNA profile was again consistent with that of the deceased. The DNA evidence thus had probative value. It was a circumstance upon which the jury could rely when considering the totality of the evidence.

83 It is true that bloodstains on the driver's seat of the appellant's vehicle could have resulted innocently from the deceased being seated in that position whilst driving the vehicle. I have already referred to Mr Ryder's evidence that the deceased drove the vehicle on the day of 5 January 2004. However, it was a question for the jury to decide what (if any) inference should be drawn in consequence of the DNA evidence.

84 The evidence established that the deceased was last seen alive in the presence of the appellant in the vehicle in which the bloodstains containing DNA consistent with her own DNA profile were found. The bloodstains could only have been deposited on the driver's seat within a period of a week before 5 January 2004 because the seat covers had been purchased during that time. The presence of the deceased's blood in the appellant's car went to the question whether she suffered injury in that vehicle on 5 January 2004.

85 The stains on the torch which revealed a DNA profile consistent with that of the deceased were also probative. The evidence was capable of establishing that the appellant had been carrying the torch on the night of 5 January 2004 not long after the deceased had last been seen alive. This fact was capable of supporting an inference that the appellant had been responsible for causing some injury to the deceased in the period since she was last seen alive. Just how that may have occurred was not known. All that was known was that there was a DNA profile consistent with that of the deceased found on the torch which was in possession of the appellant. It was a question for the jury to determine what inference (if any) should be drawn from that fact.

86 The appellant contended in written submissions that the evidence of Mr Egan was "strictly speaking inadmissible" because he was not the

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person who carried out the DNA testing. His evidence was said to be hearsay.

87 At the commencement of the trial the learned trial Judge raised the question whether any directions were required. The following exchange took place:

"BARBAGALLO, MS: The DNA, your Honour.

BLAXELL J: The DNA, yes.

BAYLY, MR: The witness statements seem to clarify that. It may well be that those witness statements could be read in - I will have a discussion with my learned friend - as indeed can some of the dental record materials be read in."

The only conclusion that can be reached from the statement of defence counsel is that there was no objection to the evidence of Mr Egan.

88 Mr Egan was cross-examined on the question of who had actually conducted the DNA testing and he said that he had supervised the testing. He was asked what this meant and he said:

"What does 'supervise' mean?---Well, I instruct the person doing the test to carry out the test, they do it, I check their results and sign off on the case work to my satisfaction because I have to talk about these results at a later date.

Who did the test?---A scientist in the laboratory.

What's his name?---Surname is Galvin."

89 The matter was not taken any further by defence counsel. No objection was taken to the evidence. This is not surprising, as at the outset of the trial the entitlement of Mr Egan to give the evidence was accepted.

90 I can only conclude that defence counsel made a tactical decision that it was unnecessary to call the person who had actually performed the testing. This being so, I would respectfully adopt what Kirby J said in R v Taufahema (2007) 81 ALJR 800 at [168]:

"Tactical decisions and even-handedness: A particular consequence of the "common law system of criminal procedure", and of its consequence that accused persons are ordinarily bound by the conduct of their legal representatives, has been a reluctance of courts of criminal appeal to permit an accused, having second thoughts on appeal, to challenge miscarriages of justice said to have arisen from tactical decisions made by trial counsel in the course of the trial. This reluctance has a very practical

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foundation. Such decisions are made in trials on countless occasions every day. If they were susceptible to being reopened on appeal, few forensic choices could be treated as final. Trials, and appeals, might never conclude. For this reason, in very many cases, this Court has declined to permit accused persons to reopen decisions made by counsel at trial, characterised as those made for tactical reasons." (references omitted)

91 In Sharwood v The Queen [2006] NSWCCA 157 the New South Wales Court of Criminal Appeal made it clear that where the scientific processes by which DNA was extracted are not challenged or in question there can be no later challenge to the admissibility of that evidence. The facts were very similar to the present case as is revealed from the judgment of Hoeben J (with whom McClellan CJ at CL and Johnson J agreed). His Honour said at [30] et seq:

"30 That there was no issue relating to the scientific processes of extracting DNA from the exhibits was made clear by defence counsel when he said:

'Your Honour she's talking about the processes carried out, the scientific processes carried out. There is no real argument about that. It's the possession.' (T.174.36)

31 It follows that the point now taken that the DNA evidence was not admissible because evidence had not been called as to the scientific processes used to extract it from the exhibits was not a point taken at trial. Not only was the point not taken at trial, it was expressly conceded. The point taken at trial was whether or not the evidence was admissible because continuity of possession and lack of contamination had not been established once the exhibits had reached the laboratory. That was a matter correctly left to the jury. By leaving it as a jury matter defence counsel was able to submit with force to the jury that there was a significant gap in the Crown's case in relation to the DNA evidence.

32 The fact that the scientific processes by which the DNA was extracted were not challenged or in question, distinguishes this matter from R v Sing [(2002) 54 NSWLR 31]. There the court assumed that there were relevant questions which the appellant's counsel wished to put to the persons who carried out the scientific processes and it was unfair for those persons not to be called so as to enable those questions to be put. Such unfairness did not arise here because there was no issue relating to the carrying out of the scientific processes in the laboratory."

92 In my opinion, it is not open to now contend that the evidence of Mr Egan was inadmissible.

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93 Senior Counsel for the appellant contends that the learned trial Judge should not have invited the jury to infer that the blood of the deceased on the seat cover came to be there on 5 January 2005. That is not what the learned trial Judge did. His Honour made it clear that there was no evidence that the blood was actually that of the deceased. He said:

"For example, when it comes to the DNA analysis of the blood there is in fact no evidence that the blood was Gayle Noble's. What the evidence is is that the DNA profile of the blood on the car seat cover was the same DNA profile as Gayle Noble's. That's the evidence; it's the same. Not that it is hers but it's the same. However, you were also told by the expert that statistically there's a one in 19.3 million chance that it's not her blood."

94 The learned trial Judge cautioned the jury about how they should treat the evidence of bloodstains on the seat cover. In so doing, his Honour drew clear attention to the possibility that there may be an inference open that the blood got there in an entirely innocent way:

"Another example is when it comes to the - yet again the blood on the seat cover matching the deceased's DNA. The state asks you to draw the inference that she must have received an injury while in the accused's car on the night of 5 January 2004. You should only draw that inference if it is the only reasonable inference in all the circumstances. If you think it's reasonably possible that her blood came to be on the seat cover as a result of her driving the vehicle during the previous six days whilst suffering from some minor cut or abrasion on her elbow, then you should make no adverse inference against the accused."

95 The final complaint is that the learned trial Judge allowed evidence about the forensic examination of various items which were found in the vehicle of the appellant. They included a shovel, two tyre levers, a pair of scissors, a pair of half scissors and a hammer. On some of these items there were reactions to blood. However, no DNA profile could be obtained and it was therefore deemed that anything that gave a reaction to blood on these items was probably not human blood.

96 The learned trial Judge gave a clear direction to the jury that bloodstains on items in the boot of the vehicle should be disregarded. His Honour said:

"The bloodstains in the boot or on the items in the boot can be disregarded because they were either animal blood or could not be distinguished as being either animal or human blood. Quite obviously given that there was animal blood in the boot it is not open for you to conclude that any of the indistinguishable blood on an item from the boot was human blood, that inference is simply not open on the evidence."

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97 Any complaint that evidence of the various items in the boot might have been misused by the jury (in the sense that they might be considered to be in some way related to the death of the deceased) was clearly overcome by this strong direction which it could be taken that the jury understood and applied.

98 In my view, there was no substance in ground 3 of the grounds of appeal.

Ground 4

99 This ground contends that the learned trial Judge erred by failing to warn the jury that prior assaults by the appellant should not be used to show that he was the sort of person who was likely to have assaulted and killed the deceased. It also contends that the learned trial Judge should have warned the jury that the alleged assaults were uncharged acts and that they had to be proven beyond reasonable doubt.

100 The learned trial Judge warned the jury that they were not to conclude that because the appellant may have previously assaulted the deceased he was therefore likely to have been violent towards her on the night of 5 January. His Honour gave two directions. The first was in the following terms:

"At this point I need to give you a warning as to the use you make of the evidence of the past relationship between the deceased and the accused. Much of that evidence is in issue because the accused denies that he committed some of the past acts of violence on the deceased as alleged by the prosecution. So you need to consider that area of the evidence very carefully making findings as to the extent to which the accused might previously have behaved violently towards the deceased.

If you do find that the accused committed acts of violence on the [sic] Gayle Noble in the past you must not simply leap to the conclusion that because he did it in the past he did it once again or behaved violently towards her on the night of 5 January 2004. Your obligation is to consider the whole of the surrounding circumstances and that area of the evidence is but a small part of the relevant facts. What you can do with the evidence of past acts of violence is to see what light that throws on the other surrounding circumstances.

Obviously if you find that the accused was violent on previous occasions that is relevant to the question of whether he was violent on the present occasion, the subject of this trial, but it cannot lead to an automatic assumption to that effect and an automatic assumption that he must have been violent on the night. You have to look at the whole of the evidence

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and see what light your finding of fact as to his past behaviour throws on the circumstances surrounding the night in question.

Obviously if you were to leap to such a conclusion that I warned you against that would be an impermissible line of reasoning and it would mean that you would be failing in your duty to consider the whole of the evidence before coming to your verdict."

101 The second passage was toward the end of the summing up and it was:

"In coming to your decision you must not be influenced by any prejudice or sympathy you may have towards anyone involved in this case. It would be very easy to be prejudiced against the accused because of adverse aspects of his character. In that regard he concedes he uses drugs, he willingly involved himself in what he called a drug run to Geraldton.

If you find he committed past acts of violence it would be very easy to be prejudiced because of them. The past acts of violence, as I explained to you, are relevant in the sense that they might throw light on the other surrounding circumstances as to what happened to the deceased on the night in question, but you shouldn't allow yourself to be prejudiced by the mere fact that he committed those past acts of violence and then just simply assume that he must have done something to her on the night."

102 The appellant admitted assaults on the deceased. He disputed some of those alleged but admitted to others. I have already detailed what that evidence was.

103 Senior Counsel for the appellant contended that the learned trial Judge ought to have told the jury that if he had been violent towards the deceased on prior occasions they must not reason that he was the kind of person who was likely to have done so on 5 January 2004 and caused her death (my emphasis). It seems to me that the second paragraph of the first passage I have quoted effectively says this. By stating that the jury must not reason that because he did it in the past he did it once again the learned trial Judge was effectively saying the jury must not reason that he was the kind of person who was likely to have committed the offence on 5 January 2004.

104 The direction urged for by Senior Counsel for the appellant is the so-called "Grech direction". It stems from R v Grech [1997] 2 VR 609. This was a sexual offence case. The accused was alleged to have committed five counts of incest with his daughter. Evidence was led at trial of other incidents, including an uncharged act of vaginal intercourse

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by the accused with his daughter which had occurred in 1982. The offences alleged were said to have occurred between 1988 and 1994.

105 Callaway JA (with whom Phillips CJ and Smith AJA agreed) said at 614:

"In my opinion the jury should have been told that:

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it –


(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged."

106 I must confess to finding very little difference between what the learned trial Judge said in this case and the direction recommended by Callaway JA. In any event, the latter direction relates to cases of sexual offences and has particular relevance in those cases.

107 Further, in Cook v The Queen (2000) 22 WAR 67 Anderson J referred at [80] to the recommended direction in R v Grech (supra) and in particular to the recommendation that the jury should be told that they must not reason that the accused committed the offence because he was the kind of person who was likely to have done so. At [81] Anderson J pointed out that in R v Beserick (1993) 30 NSWLR 510 Hunt CJ at CL at 515 – 516 held that the directions should be to the effect that the jury must not reason that because the accused may have done something wrong with the complainant on some other occasion or occasions "he must also have done so on the occasion which is the subject of the offence charged". This is essentially the direction given by the learned trial Judge in this case. As Anderson J pointed out, this is not quite the same form of direction as is given in Victoria. It does not contain a specific reference to disposition or tendency.

108 Anderson J reviewed a number of cases in Cook v The Queen and concluded at [90] - [91]:

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"90 In my opinion, it is not the law that, in every sexual assault case in which generalised relationship evidence is admitted, the jury must be expressly directed that they must not engage in any form of propensity reasoning; and must be directed that they must not reason that the accused was the kind of person who was likely to have done the act charged.

91As the authorities presently stand, I think the best guidance for trial judges is provided by King CJ in R v Dolan. Having explained in standard terms the limited purpose of relationship evidence and that it cannot be used for any other purpose and that it cannot be used at all unless it is found to be credible, it will usually be sufficient to instruct the jury that they cannot convict the accused unless they find, on the evidence relating to each charge, that he is guilty of that charge; and, if they are not satisfied that the charge in question is proved, they cannot convict the accused on the basis of the evidence of the other conduct. Of course, there will be cases in which it will be necessary to act on the advice of Doyle CJ in R v K and say a little more."

109 In Buttsworth v The Queen (2004) 29 WAR 1 a court comprising Murray, Templeman, Wheeler, Miller and McKechnie JJ approved the decision in Cook v The Queen (supra) and regarded it as an accurate statement of the law in relation to the directions required in such a case.

110 I am unable to conclude that the direction sought by Senior Counsel for the appellant in this case was necessary. I consider the direction given by the learned trial Judge to have been entirely adequate.

111 The second question raised by ground 4 is whether the uncharged acts needed to be proven beyond reasonable doubt. Senior Counsel for the appellant relied upon the observations of Doyle CJ in R v Nieterink (1999) 76 SASR 56 at [83]. This, again, was a case alleging sexual offences. What Doyle CJ said was:

"The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R's conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt: cf R v Ball and Gipp (at 133 - 134) per McHugh and Hayne JJ."

112 It is submitted on behalf of the respondent that this reasoning is applicable to the present case. In particular, it was contended that without
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evidence of earlier violence on the part of the appellant the prosecution would not have had a case against him. The earlier violence was thus "a link in a chain". This metaphor stems from Wigmore on Evidence the reference to which is contained in a passage from a judgment of Dawson J in Shepherd v The Queen (No 5) (1990) 170 CLR 573 at 579:

"… it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."

113 In my opinion, it was unnecessary in the present case for the jury to be satisfied beyond reasonable doubt that the uncharged acts of violence had occurred. In no sense was that evidence indispensable to the prosecution case against the appellant. Evidence of prior assaults constituted intermediate facts, but in my opinion, they were merely facts which constituted part of the circumstantial case against the appellant. They were truly "strands in a cable rather than links in a chain" and it was thus unnecessary to require their proof beyond reasonable doubt. The prosecution had a case against the appellant irrespective of the evidence of prior violence on his part towards the deceased. I will identify under the next ground what that case was, but it is sufficient for present purposes to say that there was circumstantial evidence, apart from the evidence of prior violence, which implicated the appellant in the death of the deceased. Accordingly, I do not accept that the learned trial Judge erred as contended for in ground 4 of the grounds of appeal.

Ground 5

114 This ground contends that the verdict of the jury was unsafe and unsatisfactory in that it was unreasonable and occasioned a miscarriage of justice. It is contended that no jury properly instructed could have been satisfied beyond reasonable doubt "that an offence had been committed let alone an offence by the Appellant". The test to be applied under this

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ground is well established. It was put by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493 and at 494 in these terms:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [See Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at 532; Knight v The Queen (1992) 175 CLR 495 at 504-505, 511.] But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. [Chamberlain v The Queen [No 2] at 621.]

…

… It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. [See Chamberlain v The Queen [No 2] at 618 - 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 - 444]."

115 I have reviewed the evidence in the case. In my opinion, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. I say that because the evidence established the following facts. The deceased was a 43-year-old woman with five children by her first husband, Brian Ryder. He had predeceased her. She had met the appellant in about December 2002 at the Burringurrah community. This was approximately 400 kilometres from Carnarvon.

116 The deceased and the appellant began a relationship and lived together at the community. They lived in the house of Margaret Oliver. The deceased's brother, Terrance Noble, also lived at the community.

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117 The relationship was marred by violence. There were a number of incidents in which the appellant was guilty of violence towards the deceased. Some of these he admitted. Others, were established by evidence of witnesses who were called at the trial. On the appellant's evidence, the deceased left him on about five occasions, the most significant of which was in the period September-October 2003, when the deceased went to Edmond Station and then to Carnarvon. She was absent for six or seven weeks. It was during this time that the appellant began a relationship with Patricia Dodd. It had ostensibly concluded when the deceased returned to the Burringurrah community and when the deceased and the appellant resumed living together.

118 The appellant admitted to four attacks upon the deceased, but denied that they were severe assaults. There was evidence that there was an assault in the house occupied by the appellant and the deceased at the Burringurrah community, when the appellant punched the deceased to the ground, then jumped on her, stomped on her and beat her. The beating was described as being in the area of the mouth and the ribs. The appellant only desisted from the assault when Janet Campbell hit him on the back with a crowbar. The details of this assault were variously described by witnesses. Not surprisingly, there was some inconsistency in the evidence. Janet Campbell described the incident in rather different terms from her husband, Mervyn Lewis. She said that the appellant had dragged the deceased out of the house by her hair and had then booted her in the back and head. The appellant had gone to his car and grabbed a tyre lever, but Janet Campbell had stood between him and the deceased and had tried to get the tyre lever from him. This assault was denied by the appellant, but it was open to the jury to accept the evidence of Mervyn Lewis and Janet Campbell that an assault did occur in which the appellant attacked the deceased in a severe manner.

119 A second incident at the Burringurrah community was alleged to have occurred as a result of which the deceased was referred to the Carnarvon Hospital. She presented with a number of injuries which included a lacerated left eye, swollen left eye lid, tender left chest, grossly swollen left hand, laceration between the second and third fingers on the left hand and a bruised right leg. There were suspected fractures in the left hand and the deceased was admitted as an in-patient at the hospital. X-rays revealed three fractures in the dorsum of the hand and in the phalanx of the index finger. These fractures were a few weeks old. This was an assault admitted to by the appellant. He said that he had thrown a stick at the deceased and had broken her arm when she raised her left arm to protect herself. That evidence was inconsistent with the other evidence

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and it was open to the jury to conclude that there had been an assault in which the appellant had caused the injuries to which I have referred.

120 Another assault was alleged at Norseman. Theresa Harris gave evidence that an assault occurred at her house in Norseman. The deceased and the appellant were both described as being drunk. They had been staying in the lounge room at the house. Theresa Harris awoke to a call from the deceased for help. When she went into the lounge room she found the appellant standing over the deceased. The deceased was under a table. The appellant was demanding that the deceased go out to the car and threatened that if she did not do so he would knock her out and put her in the boot. Theresa Harris observed that the deceased was bleeding from a cut on her forehead and there was blood on the carpet. This was an assault denied by the appellant. He admitted to throwing a stick towards the deceased when she was behind a bush near a salt lake at Norseman. He admitted that the stick had cut her forehead but that was all.

121 There was a further incident near Norseman. The appellant admitted to this. The deceased was punched by the appellant and left with a black eye. The appellant said that he had done this to the deceased because she had nearly caused an accident whilst he was driving the vehicle.

122 Another assault occurred at Mount Augustus. The appellant agreed that at that location he had given the deceased "a backhander". The reason for it he could not remember. He said that the backhander had not caused any injury.

123 A final assault was alleged on or about 19 December 2003 in Carnarvon. This was the date of Derrick Ryder's birth. He gave evidence that he heard the deceased and the appellant arguing in their bedroom. Prior to that argument the deceased showed no injury but afterwards she was observed to have a cut lip. The appellant denied that the incident had occurred.

124 There was a good deal of other evidence which centred around the relationship between the appellant and the deceased. Much of it was in dispute. There was also a great deal of inconsistency in the evidence of witnesses which related to the relationship. Nevertheless, there was evidence which established without doubt that the appellant had been guilty of violence towards the deceased during the course of their relationship. Its relevance was that it explained the background to the events alleged to have occurred on 5 January 2004. It did not establish that because the appellant had been guilty of violence towards the

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deceased in the past he was therefore likely to have assaulted and killed her on 5 January 2004. Nor did it establish that he was the "kind of person" who would have been likely to have brought about the death of the deceased. The evidence was one of the circumstances in the circumstantial case which was brought by the prosecution against the appellant and its importance was to set the background and history of the relationship. It could not be suggested on behalf of the appellant that the relationship between the appellant and the deceased was a close, loving and caring relationship which might have counted against any suggestion that the appellant was guilty of the crime alleged.

125 On 5 January 2004 the deceased appeared to witnesses to be in a normal state. Obviously, she had a number of fractured ribs but from the evidence of Dr Cadden they were in the process of healing. The appellant was cross-examined about the cause of the fractured ribs and he said he knew nothing about the matter. He said there was nothing he had done within the period of two to eight weeks before 5 January 2004 that could have caused those fractured ribs. He volunteered that he could suggest how it occurred. The appellant agreed in cross-examination that on 5 January 2004 the deceased was healthy and happy with plans to stay in Carnarvon for a week or so.

126 I have already traced the events that occurred on the afternoon of 5 January 2004. There is no doubt that a good deal of alcohol was consumed by the appellant and the deceased. Eventually, the appellant drove his vehicle with the deceased as a passenger to Al's Liquor Store. The appellant said that after leaving the liquor store the deceased did not want to go home and did not want to return to the village. The issue of Patricia Dodd was raised and then, for no apparent reason, the deceased (pulled) the appellant's hair and knocked the vehicle out of gear. The appellant said that he then hit the brakes and told her to get out and go home. She was intoxicated but she got out of the vehicle and took with her "half a cask". She was "raving on about (the appellant) just wanting to go back to the village to see Patricia Dodd". The deceased got out of the vehicle but did not slam the door. He said to her that he would be back in a minute and "just flattened it".

127 When cross-examined about the matter the appellant said that it did not faze him that the deceased had been referring to Patricia Dodd. He said he did not act violently towards the deceased. He claimed that what she had said "never bothered [him]". He denied that he got wild or ever laid a hand on the deceased. He denied that he was angry but admitted that he got angry as he was going to the tip. He was angry out at the tip.

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It was put to the appellant that he had taken the deceased in his vehicle "out to that road to Bush Bay" but he denied that he had. It was put squarely to him that he had left the deceased "for dead in the bush" and gone to the tip after that. He denied it. He admitted, however, that he cleared his head at the tip and he admitted that the last person he was with before going to the tip was the deceased. When asked about the red Arlec torch the appellant denied that it was his torch. He was asked about blood on the car seat and said that he "now" knew that it was the deceased's blood. He said that he had always believed there was no blood there because there was no violence.

128 The prosecution case against the appellant was built on the fact that he was the last known person to be in company with the deceased. He was in her company until she left his vehicle at a place not far from where her body was found some weeks later. On his own admission he had gone to the old tip nearby "for a while". Time-wise, he could not say, but he knew that it was dark when he left the tip. The prosecution case was that this time frame was three hours and so gave him ample time to commit the offence which was alleged against him. The prosecution also relied upon the fact that there was no attempt made by the appellant to locate the deceased after she had left the vehicle. Evidence that the appellant had later made enquiries about the whereabouts of the deceased and that he had told Patricia Dodd that he was going to tell the deceased the next day that he wanted to finish with her were said by the prosecution to be "disingenuous". In my opinion, it was open to the jury to reach that conclusion.

129 After leaving the site of the old dump, the appellant sought out and thereafter remained with Patricia Dodd. It was open to the jury to conclude that this conduct was consistent with the appellant being aware of the fact that the deceased was in fact dead and could do nothing about the appellant's formation of the new relationship. There was ample evidence that the deceased had previously been greatly concerned about the appellant's relationship with Patricia Dodd.

130 On 6 January 2004 the appellant left Carnarvon with Patricia Dodd. He did not return. It was not until 10 February 2004 that the deceased was found dead in bushland off the road to Bush Bay. This was an area where the appellant and the deceased had been about four days before the date of the deceased's disappearance. The deceased was in the same clothes as she had been wearing on the evening of 5 January 2004. This supported the conclusion that she had met her death on or close to that date.

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131 In judging a circumstantial case all the circumstances must be weighed. A clear statement of the way in which a circumstantial case is to be considered is to be found in the judgment of Gummow, Hayne and Crennan JJ in R v Hillier (2007) 81 ALJR 886 at [46] – [48]:

"A circumstantial case

[46] The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that 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.

[47] The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.

[48] Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain (No 2):


'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen.

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Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.'

And as Dixon CJ said in Plomp:

'All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.' (emphasis added)"

132 To adopt the words of Dixon CJ at 243 in Plomp v The Queen (1963) 110 CLR 234, this is a case in which, if the jury weighed up all of the circumstances, they might reasonably conclude that it would put "an incredible strain on human experience" to think that the deceased coincidentally met her death on 5 January 2004 in circumstances unconnected with the appellant. She had been ejected from the car in which she was travelling with the appellant in circumstances where:

(1) She had been until that time in an apparent normal state of health.

(2) She was last seen in the company of the appellant.

(3) The appellant then spent a period of up to three hours unseen by anybody in the area.

(4) The appellant then took up with and continued a relationship with Patricia Dodd.

(5) The deceased had previously been concerned about the appellant's relationship with Patricia Dodd.

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(6) The appellant and Patricia Dodd left Carnarvon on 6 January 2004 and did not return. He made no attempt to locate the deceased. The deceased when found was in the same clothes she had been wearing on 5 January 2004.

(7) The deceased was found in an area where the appellant and the deceased had recently been.

(8) This location was relatively close to the area where the appellant and the deceased had been involved in an altercation.

(9) There was evidence of bloodstaining in the appellant's motor vehicle which contained a DNA consistent with that of the deceased.

(10) There was evidence that the appellant had been in possession on the night of 5 January 2004 of a torch on which there was a substance which contained DNA consistent with that of the deceased.

(11) There was a long history of violence in the relationship between the appellant and the deceased.

133 Having reviewed the evidence in the case, I consider that the circumstantial evidence was such that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. I would therefore dismiss ground 5 of the grounds of appeal.

Ground 6

134 This ground contends that grounds 1 to 5 individually have occasioned a miscarriage of justice or in the alternative, the cumulative or aggregate of the errors of law, misdirections or failures to direct have caused the trial to miscarry. It is a ground based on the decision of the Full Court of the Supreme Court of Victoria in R v Gibb and McKenzie [1983] 2 VR 155. There, the Court (Young CJ, Crockett and King JJ) said at 166:

"Whilst none of the matters to which we have referred might standing alone necessarily be regarded as producing the result that there was a miscarriage of justice, we have come to the conclusion after prolonged consideration that a combination of all of them means that there was."

135 A more recent statement of the principle is that of Batt JA in R v Kotzmann [1999] 2 VR 123 at [114]:
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"Aggregation of defects

Mr Tehan argued that, even if each of the grounds individually failed, nevertheless the combination or aggregation of the defects said to be identified in several grounds should lead this court to conclude that there had in truth been a miscarriage of justice. That such a conclusion is open to a court of criminal appeal is clearly established: R v Ireland (1970) 126 CLR 321 at 331 per Barwick CJ (with whom the other members of the court agreed); R v Gibb and McKenzie [1983] 2 VR 155 at 166; R v Levidis [1991] 2 VR 179 at 182; R v Appleby (1996) 88 A Crim R 456 at 488; R v McKellin [1998] 4 VR 757 per Phillips CJ and Charles JA at 763; R v Zorad (1990) 19 NSWLR 91 at 108 (though the function of substantial miscarriage there is not clear to me) and R v Robertson [1998] 4 VR 30 at 42 per Callaway JA (like this, a case concerning directions as to use of evidence). It is clear from those cases that the 'defects', 'faults' or 'errors' which may thus be aggregated are such as have not led to a miscarriage of justice; for, if any of them have done so, the court would, unless the proviso were held applicable, be obliged by virtue of s 568(1) and (2) of the Crimes Act 1958 to allow the appeal and quash the conviction. (I am speaking with reference to the third limb only of s 568(1).) Compare R v Konstandopoulos [1998] 4 VR 381 at 388 and 391 - 392."

136 This is not a case in which the appellant has revealed any errors, the accumulation of which can be regarded as producing the result that there was a miscarriage of justice. For the reasons that I have previously set out, I can find no substance in any of the grounds of appeal. That being so, ground 6 of the grounds of appeal should be dismissed.

Conclusion

137 I consider that leave to appeal should be granted in this case, but the appeal should be dismissed.