Rinaldi v The State of Western Australia - [2007] WASCA 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RINALDI -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 53

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 19 & 20 JUNE 2006 & 27 OCTOBER 2006

DELIVERED : 7 MARCH 2007

FILE NO/S: CCA 40 of 2004

BETWEEN: ANTHONY ROSS RINALDI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McLURE J
File No  :INS 104 of 2003

Catchwords:

Criminal law and procedure - Appeal and new trial - Accused convicted of wilful murder - Fresh evidence and new evidence - Nondisclosure of State evidence - New expert evidence disputing conduct of forensic testing - No miscarriage of justice

Criminal law and procedure - Appeal and new trial - Alleged incompetence of trial counsel - Accused did not testify - No witnesses called for defence - Decision not to crossexamine witness - No miscarriage of justice

Criminal law and procedure - Appeal and new trial - Direction by trial Judge on point not contested at trial - No misdirection by trial Judge

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 39, s 40

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Mr S B Watters
Respondent: Mr D Dempster

Solicitors:

Appellant: Andree Horrigan
Respondent: State Director of Public Prosecutions

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

Ali v The Queen (2005) 79 ALJR 662
Beamish v The Queen [2005] WASCA 62
Bounds v The Queen (2006) 80 ALJR 1380
CDJ v VAJ (1998) 197 CLR 172
De La Espriella‑Velasco v The Queen (2006) 31 WAR 291
Easterday v The Queen (2003) 143 A Crim R 154
Gallagher v The Queen (1986) 160 CLR 392
Grey v The Queen (2001) 75 ALJR 1708
King v The Queen (2003) 215 CLR 150
Lawless v The Queen (1979) 142 CLR 659
Mallard v The Queen (2005) 224 CLR 125
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (2004) 29 WAR 13
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Nudd v The Queen (2006) 80 ALJR 614
R v Birks (1990) 19 NSWLR 677
Ratten v The Queen (1974) 131 CLR 510
TKWJ v The Queen (2002) 212 CLR 124
Weiss v The Queen (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365

STEYTLER P: On 17 March 2004, after a trial by jury, the appellant was convicted of the wilful murder of his estranged wife, Anne Lorraine Rinaldi ("Mrs Rinaldi"). He appeals against that conviction relying, in part, upon new evidence.

The trial

The charge against the appellant was that, on an unknown date between 1 September 2002 and 5 September 2002, he wilfully murdered Mrs Rinaldi. Her body was never recovered and the case against the appellant was circumstantial.
Mrs Rinaldi was a school teacher. Her marriage to the appellant had failed. She had been separated from him since late 1996. The marriage had produced two daughters (Melissa and Penelope) and a son (Peter). All were adults at the time of the trial.
The evidence established that on Monday 2 September 2002 Mrs Rinaldi attended work, as usual, at the Booragoon Primary School. She was seen leaving work at about 4.30 pm on Monday 2 September by David John Lawson, a work colleague, whose statement was tendered by consent at the trial. He said that he spoke to Mrs Rinaldi on Monday 2 September. She had intended to be at work the next day in order to do some marking. He scheduled a meeting with her and a parent on the afternoon of Tuesday 3 September. She did not attend the meeting. She was not at the school on that day or on any subsequent day.
Mrs Rinaldi had been in good physical health apart from the fact she had a kidney stone. There was unchallenged evidence that she did not leave the country at any time on or after 2 September 2002. An operation to remove the kidney stone had been scheduled for 12 September 2002, but Mrs Rinaldi failed to attend at the appointed time. Her bank statements reveal that she did not access her bank accounts after Saturday 31 August 2002.
Evidence was given by Mr Ashley Ivan Kazmer. He lived in Attadale, one street up from the unit in which Mrs Rinaldi had lived. He said that, on a Monday night in early September 2002, he heard a loud bang. The sound came from the direction of units in Swan Road. Mrs Rinaldi lived in those units. Between 10 and 20 seconds later he heard a second bang. He had thought that the first noise might have been a car backfiring. After hearing the second bang he thought that the noises sounded more like gunshots. About two days later he saw police cars at the Swan Road units. He told the police about the noises he had heard on the Monday night.
Penelope and Melissa Rinaldi gave evidence. Each had attempted to telephone her mother a number of times on Tuesday 3 September 2002. Neither received an answer. On Wednesday 4 September 2002, Penelope Rinaldi visited her mother's apartment, as was her practice on Wednesday mornings. She noticed that her mother's car was in the garage. Her mother should have been at work and always drove to work. She let herself into the apartment using a spare key which was kept in a "pot plant thing" in the garage. She noticed that the television had been left on. This was unusual. She also noticed a large wet patch on the carpet in front of the television set. She touched it and it appeared to be blood. She asked her sister, to whom she spoke on the telephone, to come to the unit. She also telephoned the police. She went into the bedroom. There, she saw more stains on the bedspread. They looked like bloodstains. She saw no other sign of disturbance at the unit, except that the coffee table had been moved from its usual place in front of the television set in the lounge room. She saw no sign of forced entry. The sliding doors in the lounge room and bedroom were locked.
Amanda Wood, a police officer who was on duty at the South Metropolitan Incident Management Unit at Fremantle Police Station on 4 September 2002, made inquiries as to the whereabouts of Mrs Rinaldi. She telephoned four major hospitals. None of these had treated a woman with suspicious injuries.
Police officers examined Mrs Rinaldi's Attadale unit on 4 September. A Forensic Investigation Officer, Senior Constable Allyson Beaton, supervised the videotaping and photographing of the scene. She collected a number of exhibits ("Beaton exhibits"). These included swabs from the bloodstains in front of the television (exhibits AB 1(a) and 1(b)), swabs from bloodstains on the paving outside the sliding door of the main bedroom (exhibit AB 11) and swabs from bloodstains on a carton next to the sliding door of the main bedroom (exhibit AB 13).
Constable Beaton returned the following day. She collected more exhibits. These included a toothbrush, comb and hairbrush from the bathroom (exhibits AB 28, 29 and 30). She also collected some metal shavings found in the hallway outside the spare bedroom (exhibits AB 54 and 55). She returned on 11 September 2002 to collect a square of carpet that had been removed from the area adjacent to the television set in the lounge room. This bore a dark red/brown stain approximately 25 cm by 35 cm in area (exhibit AB 60).
These exhibits were sent to the State Health Laboratory for forensic examination. Reports prepared by a forensic scientist, Mr A Bagdonavicius, dated 17 October 2002 and 8 March 2004 were tendered as exhibit 23 at the trial. These showed that exhibits AB 11, 13 and 60 of the Beaton exhibits (the square of carpet and the swabs from the paving and the carton) had been tested and had given positive reactions for blood. DNA obtained from the swabs was compared with DNA taken from Mrs Rinaldi's toothbrush, comb and hairbrush ("reference samples"). The DNA profiles from the swabs matched that recovered from the reference samples. This led Mr Bagdonavicius to conclude that:
"The probability of finding this DNA profile if the cellular material recovered from the above items had come from someone other than and unrelated to Anne Lorraine Rinaldi is less than one in 10 billion based on Western Australian population data."
On the afternoon of Wednesday 4 September 2002 police officers went to the appellant's workplace, Turntek Engineering, in Jandakot. They told him that they were investigating the disappearance of his wife. They cautioned him and invited him to accompany them to the police station for questioning. The appellant's vehicle, a white Toyota landcruiser registration 6DW‑009, was secured and towed to a shed at the Maylands Police complex.
On the same day, police officers went to the appellant's house in Bull Creek. There, the officers (including Federal Police Forensic Firearms Investigator Senior Constable Eric Davies) executed a firearms search warrant. They removed a number of firearms and ammunition from the appellant's house and from a shed at the rear of the property. The appellant asked them to place the firearms in gun bags. He provided the police with several bags for that purpose.
Earlier that day, Constable Davies had recovered a spent cartridge case from Mrs Rinaldi's unit. He had found it on the lounge room floor. He examined the guns taken from the appellant's home. None of these had discharged the cartridge. However, as he was test‑firing the guns he noticed that one of the gun bags provided by the appellant, a dark green bag, had a red/brown discolouration towards one end. He sent it to the Western Australian Centre for Pathology and Medical Research ("PathCentre") for analysis. The discoloured area was tested by Mr Bagdonavicius. It gave a positive reaction for blood. DNA was taken from the stained area. On analysis, it was found to have a less than one in 10 billion probability of coming from someone other than and unrelated to Mrs Rinaldi.
On Thursday 5 September 2002, police officers returned to the appellant's Bull Creek house. They searched the premises. Senior Constable George Diamond recovered two items. The first was a letter from the Government Employees Superannuation Board ("GESB") dated 13 July 2002, addressed to the appellant (exhibit 11). The letter revealed that the appellant had instructed GESB that his superannuation benefits were to be paid directly to him and not to Mrs Rinaldi. Other documents tendered at the trial revealed that there was then a Family Court order in place which required the appellant to pay to Mrs Rinaldi the sum of $85,000, plus interest, on or by 1 September 2002. They also revealed that the appellant had, on 16 August 2002, made an application for early release of his superannuation benefits for the purpose of paying that sum to Mrs Rinaldi. A further document tendered at the trial recorded that this application was refused on 20 August 2002. The second item recovered from the appellant's house on 5 September 2002 was a portrait of Mrs Rinaldi. It had been defaced. Her eyes had been whited out and replaced with dollar signs.
On Friday 6 September 2002, Constable Diamond carried out a "luminol examination" of Mrs Rinaldi's unit. In his evidence at the trial he explained that luminol is a reactive chemical "that enhances any blood residue". He said that, even if blood has been cleaned from an area, if any trace remains it will produce a chemical reaction upon being sprayed with luminol. This causes it to become fluorescent and give a light bluish tinge in complete darkness. A test for blood using this means is not conclusive and gives only a "presumptive" result.
After completing the luminol examination, and having chalked the areas that had reacted both inside and outside the unit, Constable Diamond sketched these areas. The sketches (exhibit 13 at the trial) show a trail starting in front of the television set in the lounge room, passing through the house to the main bedroom, then passing through the sliding doors in that bedroom into a courtyard area and finally passing along a paved path in the courtyard and through a gate to the driveway area. The trail ends in the driveway.
Dr Karin Margolius, a forensic pathologist, examined Mrs Rinaldi's unit on 5 September 2002. She looked at the stains on the carpet. She also subsequently examined the sketches that had been prepared by Constable Diamond. She agreed that the sketches showed areas of blood that were more extensive than those which were visible to the naked eye. She confirmed that there had been a large area of visible blood in the lounge room in front of the television. She said that, if the blood was that of Mrs Rinaldi, its quantity was so great that she would have died without medical treatment.
I have mentioned that metal shavings (referred to as "swarf") were found at Mrs Rinaldi's unit. Swarf is a substance that was generated by the appellant in the course of his work at Turntek Engineering. It sticks to clothing and boots. The appellant's children said that they had often seen it on the appellant. However, I have said that the swarf was found on the second day of the examination of Mrs Rinaldi's unit. It could consequently have been deposited accidentally by police officers to whom it had adhered after they had visited the appellant at his work and at his house on Wednesday 4 September 2002. Also, Mr Mark Bryson, who lived on the same road as Mrs Rinaldi, gave evidence that he had seen a white four wheel drive vehicle reverse parked in front of her unit on Sunday 1 September 2002. If the vehicle belonged to the appellant (Mr Bryson gave a description that was similar, but not identical, to the appearance of the appellant's landcruiser), the swarf could have been deposited by him on that day. There is no doubt that Mrs Rinaldi was alive on the following day.
On Friday 6 September 2002, Constable Peter Malins, a Forensic Investigation Officer, conducted a forensic examination of the appellant's landcruiser. He made a video‑recording of the examination. In the course of it he identified several visible bloodstains that had been found in the back of the landcruiser. He marked these and took swabs from them. The swabs were marked "PM 6" to "PM 10". The blood had been found on the underside of the bench of the back seat, which could be moved forward and then tilted up against the back of the front seats to create more storage space in the vehicle. The backrest of the back seat could also be laid flat for that purpose.
Swabs PM 6 to 10 were tested by Mr Bagdonavicius. The tests were positive for blood. A DNA analysis of the swabs was made. This revealed that the probability of finding the DNA profile of the cellular material tested in some person other than and unrelated to Mrs Rinaldi was less than one in 10 billion based on Western Australian population data.
Constable Malins and Senior Constable George Paton conducted a luminol test on the appellant's landcruiser on 9 or 10 September 2002 (Constable Paton said 9 September and Constable Malins said 10 September). They explained the forensic procedure that had been followed. Luminol was sprayed on each "relevant" surface of the landcruiser. The luminol was used to identify "points of interest". The luminescent spots were swabbed and a substance known as "Haema‑Stix" ("HS") was applied to the area. HS reacts with haemoglobin and turns from yellow to green on contact with blood. As with luminol, an HS test is presumptive only. Consequently, the swabs were further tested in order to discover whether or not the material was blood and, if so, whose blood it might be.
In the course of cross‑examination, Constable Paton acknowledged that luminol will sometimes react with other materials than haemoglobin. He gave as examples copper, oxidised metals and some cleaning products. However, he said that experienced forensic investigators such as Constable Malins would usually be able to tell the difference between a possible blood reaction and one resulting, for example, from rust on a bolt. However, because the tests were only presumptive, swabs were routinely sent for analysis and further testing. Constable Paton had prepared a sketch of the inside of the landcruiser, identifying the areas that had given a positive reaction for luminol. This became exhibit 22 at the trial.
Evidence was given by Melissa Rinaldi that on 13 September 2002, while her father was in custody, she had a conversation with him. Her evidence‑in‑chief in this respect reads as follows (transcript 71 ‑ 72):
" On 13 September, that is, approximately 10 days after you discovered what you discovered in your mum's unit, did you visit the Fremantle detectives office?‑‑‑Yes, I did.
Did you ask to and did you have a conversation with your father there?‑‑‑Yes, I did.
At that stage, was your father then in police custody?‑‑‑Yes, he was.
Do you recall the conversation with him?‑‑‑Yes, I do.
Can you tell us what was said? First of all, who spoke first?‑‑‑After just saying hello, I did. I asked my dad a question. I said to him, 'You must realise what the police have told us,' and I asked him, 'How could this, in all of our family history, have possibly happened?'
Did he reply to that?‑‑‑His reply to me was, 'Avarice.'
Just the one word?‑‑‑Just the one word. I said to him, 'Well, that would be great if I knew what it meant,' and he said to me, 'It's when one dedicates one's lives [sic] to accumulating money and material things,' and then he paused and quantified [sic] it with, 'Not mine, mind you.'
Did you continue to speak to him at that time?‑‑‑Yes. I asked basically how it had come to that, how it was even an issue, and he went on to say that, 'Don't ever make plans for somebody else, and particularly if you don't tell them.'
He said, 'Don’t ever make plans for someone else'?‑‑‑Yes.
'Particularly if you haven't told them'?‑‑‑'Haven't told them about it.'
Did you continue to speak to him? Do you remember?‑‑‑Yes. I went on to ask how he could hate us all that much to have done this and he replied that he didn't hate us, it was quite the opposite, and started talking about how we, meaning all three of us, my brother and my sister, needed to move on with our lives."
Melissa Rinaldi also said that she and her brother had gone to her father's home on about 4 October 2002, a few weeks after his arrest. There, they found a small jewellery bag containing the wedding rings belonging to her mother and father and her mother's engagement ring. She said that the engagement ring was always at her mother's unit on a ring tree in her bedroom. She said that it was unusual that the ring should have been in her father's possession.
Each of the Rinaldi children gave evidence to the effect that the relationship between their father and mother had been troubled for many years. They argued about many things, especially money (transcript 47, 66 and 78). Peter Rinaldi went so far, in the course of his evidence (transcript 81), as to say that the appellant had told him, while in police custody, that, many years ago in about 1986, the appellant had dug a hole "in reference to putting mum in it", but had subsequently thought better of it. The Rinaldi daughters said that Mrs Rinaldi would not have been in the appellant's landcruiser for many years. Penelope Rinaldi said that the last time that she had seen her mother in the landcruiser was 10 or 15 years ago. She did not remember ever seeing Mrs Rinaldi in the back of the landcruiser. Melissa Rinaldi said that she had last seen her mother in the landcruiser (she had been in the front seat) "at Christmas of either 1994 or 1995".
Evidence was given by one of the appellant's work colleagues, Mr Ryan Kirk. He said that the appellant had often said that his wife was "after his money". He also gave the following evidence (transcript 136):
"Was something said about that at one time you remember about the middle of August 2002?‑‑‑Yeah, he was talking about how she was after his superannuation money and just jokingly I said to him for $10,000 I would get rid of her, 'You'd never see the body.'
Did he reply to that?‑‑‑He had a laugh and said that it was too expensive and that he could do it himself.
Were there others there when that was said?‑‑‑Yeah, a few of the blokes, everyone jumped in, 'I'll do it for eight,' 'I'll do it for six,' 'I can get it cheaper.'
But Ross said he could do it himself ‑ ‑ ‑?‑‑‑Yep."

Mr Colin Moore, an acquaintance of the appellant and a former work colleague of his, also gave evidence. He said that he had spoken to the appellant about Mrs Rinaldi on a number of occasions. The appellant told him how unfair the Family Court was. The appellant also told him, over the telephone in late 1999 or early 2000, that he was prepared to kill his wife if he was pushed too far.
The appellant did not give evidence at the trial.
In his closing address, the prosecutor suggested to the jury that the appellant had murdered Mrs Rinaldi, essentially for financial reasons. He was going to have to sell his Bull Creek house in order to make the payment to her that was required by the Family Court order. In order to avoid doing this, the prosecutor said, the appellant shot his wife on the night of Monday 2 September 2002 while she was in the lounge room of her house. The prosecutor suggested that the appellant then dragged Mrs Rinaldi's body through the house to his landcruiser and put the body in the back of it. He suggested that the appellant must have attempted to shield the car from contamination by blood, but that some light traces of blood had found their way onto the vehicle. He said that the appellant must subsequently have dumped the gun and the body in a place in which they would not be found.
The then counsel for the appellant, Ms Braddock SC, contended in her closing address that the evidence was insufficient to implicate the appellant in the murder beyond reasonable doubt. She relied, in particular, upon the absence of any forensic material, such as DNA or fingerprints, linking the appellant to Mrs Rinaldi's murder. She relied, also, on the fact that the cartridge case that was found in Mrs Rinaldi's unit had not been fired from any of the appellant's guns. She acknowledged that blood containing DNA consistent with that of Mrs Rinaldi had been found in the appellant's landcruiser and on his green gun bag. Her contention, in this respect, was that there was no evidence that the blood had been deposited recently. She said that it might have been deposited at any time during the 25 years in which the appellant had owned the landcruiser.

Grounds of appeal

There are four grounds of appeal. They read as follows:
"1.Non-disclosure by the prosecution of material evidence, exculpatory of the Appellant, resulted in a miscarriage of justice.
Particulars of Undisclosed Evidence
1.1On the afternoon of Friday 6 September 2002 the Appellant's Toyota motor vehicle was examined by Mr S E Egan ("Egan"), a scientist from the Path Centre in Perth. He found no visible signs of blood.
1.2Egan then conducted Kastle Meyer presumptive blood tests over the cargo area of the rear of the Toyota. The tests were negative. No traces of blood were found.
1.3Egan's notes and drawings made on 6 September 2002 and his interim report dated 10 September 2002 concerning the tests carried out by him on 6 September 2002 and the negative results, were not disclosed to the Appellant or his legal representatives.
2.Evidence obtained since the trial, particulars of which appear below, in conjunction with the undisclosed evidence particularised above, is capable of raising a reasonable doubt as to whether there was any of the deceased's blood in the Appellant's Toyota, consistent with it having been used to carry her body, rendering the verdict unsafe or unsatisfactory.
Particulars of Fresh Evidence
2.1A report of Professor Barry Boettcher ("Boettcher") dated 7 November 2005 as follows:
(a)The results of DNA tests on swabs from:
• the back of the rear seat;
•the floor of the boot and the side panel; and
•the inside of the tailgate;
of the Appellant's Toyota 'showed little evidence of any possible blood in these areas of the vehicle. No blood was demonstrated in these areas' (para 1.1.4 report).
(b)The only evidence of DNA obtained from swabs in the area in the back of the vehicle produced a profile that excluded the DNA as being that of the deceased, and was consistent with being the Appellant's (para 1.1.4 report).
(c)A positive result to luminol examination is not necessarily a positive identification of blood being present in those areas (para 2 report).
(d)There are no records of observable blood stains being seen in the back seat area (para 2 report).
(e)It is not certain that the DNA came from the deceased's blood. 'It could have come from, for example, skin cells that were in the area that was swabbed' (para 2 report).
(f)Tests undertaken in the relevant part of the Appellant's Toyota showed only the possibility of blood, but 'The presence of blood in the area was not definitely established' (para 2 report).
(g)Testing of swabs taken from these areas produced identifiable DNA from only one area and this was not the deceased's but was consistent with coming from the Appellant (para 2 report) and
•there were no appreciable indications of blood in this specific area of the vehicle (para 2 report);
•the only DNA identifiable in swabs taken from this specific area was not from the deceased but was consistent with coming from the Appellant (para 2 report).
2.2A further report of Boettcher dated 10 November 2005 as follows:
(a)The likelihood of obtaining important DNA profile results from either the set of swabs taken by Egan on 6 September 2002 or Police Officer Peter William Malins ('Malins') would not have been known to the prosecution until testing was complete (p.2 pt C).
(b)The swabs taken by Egan comprised Batch 2. The swabs taken by Malins (PM 6‑10), together with samples of the deceased's DNA comprised Batch 3. The Incoming Exhibits Log shows that Batch 3 was received by Egan on 7 September 2002 (p.1 pt E).
(c)The swabs collected by Malins together with samples of the deceased's DNA, were tested before the swabs taken by Egan on Friday 6 September 2002 (p.2 pt C).
(d)Batch 2 was received by Egan on 7 September 2002. It was not submitted for testing until 9 September 2002, whereas the items that comprised Batch 3 (also received on 7 September 2002) were submitted for testing two days before, on 7 September 2002 (p.2 pt A).
3.The conduct of the Appellant's defence by his counsel was such that the Appellant did not have a fair trial, and there was a miscarriage of justice.
Particulars
[J] as a 'person of interest'
3.1The Appellant's counsel failed to request or to view a videotaped interview by the police of … [J] conducted on 4 September 2002, although the Appellant had told his counsel that his wife (the deceased) had been having an affair with … [J], and the Appellant had requested his counsel to view the videotaped interview, which would have been made available by the prosecution.
3.2During the videotaped interview, … [J] initially told the police that his relationship with the deceased was simply that of financial adviser and client, whom he saw about twice a year, which was substantially what he stated in his witness statement, provided to the defence as part of the prosecution brief.
3.3However, in the videotaped interview … [J] ultimately admitted that he had been having sexual relations with the deceased over a number of years, and that he had been visiting her at her unit 'once or twice a month'.
3.4Several weeks before the trial, which began on Monday 15 March 2004, the Appellant's counsel was provided by the prosecution with a Path Centre report dated 2 February 2004 ('the Path Centre report') containing an analysis of semen and other fluid stains found on the doona cover on the bed in the unit of the deceased. The semen matched the DNA of … [J], and the other fluid stains indicated that sexual intercourse had occurred on the doona.
3.5On the second day of the trial, the author of the Path Centre report, Dr. Bogdanovicius [sic], was called as a prosecution witness. His examination in chief did not refer to the analysis of the semen and other fluid stains in the Path Centre report. When the Appellant's counsel asked the Appellant whether he wished her to cross‑examine Dr Bogdanovicius [sic], to elicit evidence that … [J's] semen was on the doona cover, and that sexual intercourse had occurred, the Appellant said that he wanted her to do so.
3.6When the Appellant's counsel, in accordance with his instruction, began to cross‑examine Dr Bogdanovicius [sic] about the Path Centre report, prosecuting counsel said, in the absence of the jury, that if the purpose of this line of questioning was in order to establish that 'a third party' … [J] was 'a person of interest' (meaning a possible suspect) … [J] would be called by the prosecution to give evidence. The Appellant's counsel was granted a brief adjournment to consider the matter.
3.7During the short adjournment, the Appellant's counsel did not confer with him on the matter, or seek his instructions, but told him that she was not going to continue with that line of questioning because the trial judge had told her that she would rule against her doing so.
3.8The trial judge had not said that she would rule against that line of questioning, but when the trial resumed the Appellant's counsel did not continue with it.
3.9The prosecution therefore did not call … [J]. The result was that defence counsel abandoned the forensic opportunity to establish, through cross examination of Dr. Bogdanovicius [sic] and … [J], that … [J] was a recent visitor to the deceased's unit, and may have been responsible for her death.
Election not to call evidence
3.10On Friday 12 September 2004, the Appellant's counsel had a brief (less than half an hour) discussion with him about the forthcoming trial. The Appellant expected to give evidence in his defence and there was no suggestion that he should not. He had provided his legal representatives with extensive notes for that purpose.
3.11On the morning of the first day of his trial, in the courtroom and before the prosecution case had started, the Appellant's counsel said to him words to the effect 'I don't want you to give evidence. That way, I can address the jury last'. She then produced, and asked him to sign (which he did) a typed 1 page document stating (inter alia):
'Having considered the advice given to me, I elect not to give evidence'.
3.12There had been no discussion between the Appellant and his counsel before she produced the typed page for his signature, and no advice was given to him on the matter, other than that his counsel would have the right to address last. The Appellant's agreement not to give evidence was uninformed. Properly advised, he would have given evidence, and called witnesses on his behalf.
Failure to properly prepare defence
3.13The Appellant's counsel failed to proof witnesses who could give evidence capable of undermining the prosecution case and who had provided statements that formed part of the prosecution brief. These included witnesses who lived very close to the deceased and did not at the relevant time hear any gun shot. These witnesses were not called at trial by the prosecution. Further, those witnesses who were with the Appellant at the Lone Ranger Shooting Club earlier in the evening of Monday 2 September 2002 [sic].
3.14As a result of her failure to proof these witnesses, the Appellant's counsel lost the opportunity to call them as witnesses for the defence before the Primary Court.
4.The learned trial judge misdirected the jury on significant factual issues, resulting in a miscarriage of justice.
Particulars
4.1Her Honour told the jury that it was not in dispute that Anne Rinaldi was killed with a rifle (t/s 173, 179). In fact, there was no evidence that this was so. No gunshot residue was found in the deceased's unit, despite forensic testing. Although a spent cartridge was found by police on the floor of the unit, but [sic] there was no evidence of how or when it had got there.
4.2Her Honour referred (t/s 174) to evidence of Anne Rinaldi's blood, when the evidence was that it was DNA and cellular material, and not necessarily blood."

Grounds 1 and 2

Because there is some overlap between grounds 1 and 2, it is convenient to deal with them together. I propose, first, to deal with the undisclosed material. I will then turn to the new evidence relied upon in support of ground 2, and also to evidence given in that regard by Mr Scott Egan. I will then discuss the applicable tests and the appellant's contentions before drawing conclusions in respect of both grounds.

The undisclosed material

The material which, the appellant contends, should have been but was not disclosed by the prosecutor comprises notes and drawings made by Mr Egan on 6 September 2002 and a report prepared by him on 10 September 2002.
Mr Egan is a forensic scientist employed in the Forensic Biology Section of the PathCentre. On the afternoon of Friday 6 September 2002 Mr Egan examined the appellant's landcruiser in the presence of Constables Malins and Jones. His notes of the examination reveal that he divided up the area examined by him into 10 smaller areas. These comprised the inside of the tailgate of the landcruiser (identified as areas one and two), the floor of the luggage area (identified as areas three, four, five and six) and the back of the rear seat of the landcruiser (identified as areas seven and eight). He also examined each of the interior side panels of the luggage area of the landcruiser. After visually inspecting the landcruiser, Mr Egan tested it for the possible presence of blood. He did this by means of a "Kastle‑Meyer" ("KM") test, the primary active ingredient of which is phenolphthalein. That test, as with luminol and HS tests, is presumptive, rather than conclusive, of the presence of blood. He also used HS, the primary active ingredient of which is tetramethylbenzidine. He examined the landcruiser with its back seat in its normal seating position. The KM test produced a weak positive result towards the top of the right‑hand side of the back of the rear seat. A swab taken from the white trim on the edge of the right‑hand side of the back of the rear seat produced a positive KM result. The HS test also produced a positive result on the white trim. A weak positive at the top of area eight, being the left side of the back of the rear seat, was found in the course of the HS testing.
Mr Egan also tested other areas in the landcruiser, being primarily those that would have been touched by its driver. His notes reveal that three of these produced a positive result on KM testing. The first was a red/brown smear found on the right side of the rear of the bucket seat. The second was the landcruiser's indicator switch. The third was a "red stain drop" on the inside rim of the driver's door (the edge that faces outward when the door is open).
In his report dated 10 September 2002, Mr Egan did not refer to his examination of the landcruiser. He referred only to his receipt of the swabs taken by Constable Malins (PM 6 to 10) and also to his receipt of exhibits AB 28, 29 and 30 (the toothbrush, comb and hairbrush). His report revealed that each of swabs PM 6 to 10 had given positive reactions for blood when screened chemically and that each had been submitted for DNA analysis. The report concluded by noting that the DNA profile recovered from the cellular material on the comb, brush and toothbrush matched the DNA profile recovered from the stains on the swabs.
Mr Egan did not give evidence at the trial. The prosecution brief had contained a one‑page statement, signed by him, which recorded no more than that he was a forensic scientist employed at the PathCentre and that he had received exhibits AB 28 to 30 and PM 6 to 10, each of which had been "processed" within the laboratory. However, there is nothing in Mr Egan's report dated 10 September 2002 that was not included in exhibit 23, being, as I have said, the reports of Mr Bagdonavicius that were tendered at the trial.

The new evidence

As ground 2 makes plain, the new evidence relied upon by the appellant is that of Professor Barry Boettcher, a retired Professor of Biological Sciences. Professor Boettcher has prepared five reports. These are respectively dated 7 November 2005, 10 November 2005, 5 February 2006, 19 February 2006 and 21 February 2006. I will deal with each in turn. I will also deal with oral evidence given by Professor Boettcher in the course of the appeal.

The report dated 7 November 2005

In his report dated 7 November 2005 Professor Boettcher makes seven points.
The first is that the results obtained from the examination of, and swabs taken from, the back of the rear seat, the floor of the luggage area, the side panels, and the inside of the tailgate of the landcruiser demonstrated that no blood, or DNA matching that of Mrs Rinaldi, had been found in any of those areas. The only DNA that was found in these areas produced a profile that excluded the possibility of it coming from Mrs Rinaldi. The profile of that DNA was consistent with that of the appellant.
Professor Boettcher's second point is based upon annotations of times which can be seen in photographs of the tubes that contained swabs PM 6 to 10. He understood from these annotations that the person who took these swabs had first tested the rear bench seat of the landcruiser, finding several areas that were KM positive, and that the whole of the testing and swabbing had been done in the very brief interval between 19:42 and 19:47, the times recorded on labels on the tubes having fallen within that period. He said that it was difficult to imagine that the testing and swabbing could have been done in that time.
Professor Boettcher's third point is that he considers it to be very surprising that Constable Malins obtained positive results on all five areas swabbed by him, when Mr Egan, who swabbed and tested a much larger area, obtained only a few positive results.
His fourth point is that the swabs taken by Mr Egan from the landcruiser (identified as "Batch 2") were recorded in an Incoming Exhibits Log ("Log") on 9 September 2002, whereas the swabs taken by Constable Malins and exhibits AB 28 to 30 (together identified as "Batch 3") were recorded in the Log on 7 September 2002. Professor Boettcher considered it inappropriate that Batch 2 should have been logged after Batch 3 when Batch 2 had been received earlier than Batch 3.
Next, Professor Boettcher observes that the DNA profiles obtained from swabs PM 6 to 10 and from the comb, brush and toothbrush were obtained on Saturday 7 September 2002, prior to their having been recorded in the Log. He also notes that these profiles were seemingly obtained prior to the DNA concentrations being determined. He regarded this as unusual.
The final two points made by Professor Boettcher relate to what he considers to have been misstatements by the prosecutor at the trial. The first of these is said to be constituted by a comment by the prosecutor to the jury that a luminol examination had been carried out on the landcruiser. Professor Boettcher had seen no record of any such examination. The second misstatement is said to arise out of two comments made by the prosecutor concerning the finding of blood. The first of these was that:
"A luminol examination was conducted and blood was traced visibly in the back particularly but also in the driver's seat area. However, blood was traced visibly in the back seat".
The second comment was that:
"Blood consistent with the deceased woman's blood was found on the top of the back seat, the cushion seat, when it was raised to put the back seat down to obtain more carrying space".
Professor Boettcher says, in respect of these statements, that a positive luminol result is not necessarily a conclusive identification of blood. He points out that many substances other than blood can give a positive reaction to a luminol test, as is the case with the other presumptive tests. He also says that there are no records of observable bloodstains in the back seat area. He makes the comment that, although the carpet on the back of the rear seat gave a weak KM result, this did not necessarily mean that blood was present and no DNA was detected in material derived from the swab of that area (area 7). He also suggests that DNA was not isolated from individual, identifiable bloodstains but from swabs of areas, with the consequence that it could not be regarded as certain that the DNA had come from blood. He says that it could, for example, have come from skin cells that were in the area swabbed.

Professor Boettcher also notes in this last respect that, in the course of explaining to the jury how the seat in the landcruiser might be moved, the prosecutor said:
"Perhaps I can explain it this way: this is an older model of Toyota landcruiser. To obtain a greater carrying area, you bring up the bench seat, the rear seat, by rotating it forwards and upwards and then put down the very back seat to give a larger area to carry things."
He remarks that a sketch prepared by Mr Egan on 6 September 2002 (forming part of his notes) depicts the results of presumptive tests for blood "in the precise area" that the prosecutor had been referring to being, he says, the back of the rear seat, the floor of the boot, the left and right side panels and the inside of the tailgate. He goes on to remark that only three of 19 tests undertaken in that area showed the possibility of blood, that the presence of blood in the area had not been definitely established, that only one swab of identifiable DNA was obtained and that this was consistent with the appellant's profile and not that of Mrs Rinaldi.

The report dated 10 November 2005

In his report dated 10 November 2005, Professor Boettcher reiterates some of the concerns previously expressed by him. Amongst these are concerns relating to the order of testing, as to which he says:
"It is surprising, to say the least, that items from a well‑organised inspection of the Toyota landcruiser ‑ clearly detailed … - should be ignored for testing in favour of urgently testing PM 6 ‑ 10, for which no details of their collection have been provided.
Why were items PM 6 ‑ 10 considered to be so important that they should be tested on a Saturday, ahead of items collected earlier than them on Friday, 6^th September 2002? Presumably there should not have been any prior knowledge of the likelihood of obtaining important DNA profile results from one set of swabs taken from the Toyota compared with another set of swabs taken a few hours earlier in the day from the same vehicle."

The report dated 5 February 2006

In his report dated 5 February 2006, Professor Boettcher again expresses a number of concerns. He reiterates that no luminol examination had been undertaken before going on to say:
"This point is important.
When luminol is used to screen a surface, the whole of the surface is sprayed. The specific location that gives a positive result with the luminol test can be identified and marked. Later testing can then be undertaken on the actual location that has given the positive result in the screening test.
When either the Hemastix [sic] or Kastle‑Meyer procedures are used to screen a surface, the swab or filter paper is wiped over the surface. First, unlike the luminol test procedure, not all of the surface is sampled, only the precise parts of the surface that the swab or filter paper has touched. Secondly, it is only after the swab or filter paper has been rubbed over the surface that a test is undertaken to determine whether the test result is positive or negative. If the test is positive, it is uncertain what section of the area that was examined gave the positive result.
Consequently, when the K‑M (or the Hemastix [sic]) test is used on a surface, and the result is positive, and DNA is later obtained from a swab, it is not certain that the DNA was obtained from the same part of the surface that gave the positive result in the K‑M (or the Hemastix [sic]) test.
I note that area 7, half of the back of the rear seat (page 98) gave a 'weak KM pos' result, but did not yield DNA.
Confidence that DNA is derived from blood on a surface needs identification that the stain is of blood.
The Kastle‑Meyer, the Hemastix [sic] and many other presumptive tests for blood are not specific for blood. A number of substances other than blood can be responsible for a positive reaction. In fact, in the Kastle‑Meyer test, an old batch of hydrogen peroxide which has 'gone off' can give false positive results due to the presence of free oxygen. Let me add that I am not suggesting that this is the basis of positive results in this case. Appropriate results with positive and negative controls ensure that false positive results are not obtained due to poor quality hydrogen peroxide.
A specific test for blood, such as the Takayama test that identifies the haem group of haemoglobin, is necessary before it can be certain that blood has been identified.
Commonly, a stain that has the appearance of blood is identified. This is a red‑brown stain which, when viewed with a magnifying glass, often shows minute flakes of blood. This stain is then removed for testing. If testing reveals the stain to be of blood, and if DNA is obtained from the portion of the stain that has been removed, it can be concluded that the DNA has been derived from blood."
Professor Boettcher goes on to stress that the results from the swabs obtained from the landcruiser should not, in his opinion, be taken as identifying the presence of bloodstains in the vehicle. He points to the fact, as he understands it to be, that although some individual stains were tested (he appears to be relying upon those tested by Mr Egan) none gave a positive result in the KM test (with the consequence that the origins of any DNA obtained from the swabs was uncertain). He also suggests that, because no stains with the appearance of blood were recorded, it is unlikely that blood from a wound was the source of any DNA that was isolated. He says that it is possible that there was something in the vehicle, other than bloodstains, that had produced positive results in the presumptive tests for blood and that the DNA that was found did not come from blood but had been derived from other cells, such as skin cells, on the swabbed surfaces. He adds that it is possible that blood was responsible for the positive presumptive tests, but not blood derived from a cut or wound. He mentions, as an example, that vomit can contain blood and other DNA cells.
Professor Boettcher reiterates that he does not consider it feasible to undertake 10 swabs of surfaces, and KM tests of those swabs, in six minutes.

The report dated 19 February 2006

In his fourth report, Professor Boettcher records that he is "now aware that a luminol examination was (apparently) conducted" on the landcruiser. He refers, in that respect, to a diagram headed "Luminol Examination 10/09/02", prepared by Constable Paton (whose evidence at the trial has been referred to earlier in those reasons).
In this report, Professor Boettcher again refers to the improbability of all five KM tests (those the subject of Batch 3) producing positive results, when only a small proportion of the swabs taken by Mr Egan tested positive. This led him to conclude that the two sets of tests had been differently conducted. He also concludes that, having regard to the DNA findings, the stains identified in the second set of tests (those relating to swabs PM 6 to 10) were different in nature from the other stains that were identified. He comments that, for some unknown reason, the concentrations of DNA in those stains was higher than in the other stains.
Professor Boettcher returns to a number of concerns earlier expressed by him without adding anything of substance, for present purposes, to what had previously been said. He also identifies a number of deficiencies in the recording of evidence, but these are not presently material.

The report dated 21 February 2006

In his most recent report, Professor Boettcher suggests that the results of the luminol tests conducted by Constable Paton are inconsistent with the results of the KM tests conducted on swabs PM 6 to 10. He points to the fact that Constable Paton took 12 swabs ("GP 1 to 12") from locations that gave positive reactions to luminol and, on chemical screening, each gave negative reactions for blood, as appears from a forensic biology report prepared by Mr Bagdonavicius on 14 March 2003. He suggests that, since luminol tests screen the entire surface of an object, the location of a bloodstain detected in a KM test should show up in a luminol test conducted some four days later, but not all of the sites that were swabbed by Constable Malins did so.

Professor Boettcher's oral evidence

In his oral evidence, Professor Boettcher reiterated much of what had been said by him in his reports. He stressed that there are different substances that can "give false KM positives" and said that blood from any sort of animal would give a positive KM result. A Takayama test, which is conclusive for blood, was not made. He explained that the general procedure, when testing for blood, is to take a swab such as a cotton bud and "run it over quite an area". If the test is positive, that suggests that there is something "in the whole area" that might warrant further investigation. He said that DNA found on the swab might have come from anywhere in the area and not necessarily from the area that produced the positive result. He said that any cell having a nucleus will provide DNA. Examples are one‑thousandth of a drop of blood, a skin cell or a piece of dandruff.
When commenting upon his assumption that DNA profiles were apparently obtained from swabs PM 6 to 10 prior to the DNA concentrations being determined, he suggested that this revealed a breach of ordinary laboratory operating procedures. He said that these involved, first, the isolation of the DNA, then a determination of its concentration and, finally, the undertaking of the profiling procedures.
Professor Boettcher had not, until the hearing of the appeal, seen the video‑recording of Constable Malins' examination of the landcruiser on 6 September 2002. Nor was he aware of the evidence that had been given by Constables Malins and Paton at the trial. After seeing the video‑recording, he acknowledged that some staining was apparent. When asked whether this was inconsistent with his earlier observation that there had been no stains with the appearance of bloodstains, he said (mistakenly, when regard is had for the evidence of Constables Malins and Paton at transcript 110 and 122 respectively):
" … really from the video I wouldn't like to make a comment but what I would like to make a comment about is that there's no record of anybody actually having a look at any of the stains and saying, 'Yes, this … [has] the appearance of a blood stain or anything else like this'."
Professor Boettcher reiterated his concern as regards the apparent inconsistency between the results obtained from Constable Malins' swabs and the later luminol testing. He said, in this respect (transcript 92):
"When an area is swabbed for blood you do not remove all of the blood from that area even with a very smooth surface, but with an indented surface with cloth it's virtually impossible to remove all traces of blood. Luminol is sprayed over a complete area and if PM 6 to 10 were obtained from a position on the folded up swab [sic] of the rear seat I would have expected for that to be also ‑ those locations to also be recorded in the luminol testing … undertaken four days later … it is my conclusion that the two sets of results are inconsistent."
Professor Boettcher also reiterated his opinion that the absence of any blood in the "back" (which I take to mean luggage area) of the landcruiser was "completely out of consistency" with the finding of positive results on each of swabs PM 6 to 10. This conclusion was seemingly based upon his assumption that Mrs Rinaldi's body had been placed in the luggage area of the landcruiser.
Professor Boettcher's attention was directed, in the course of his evidence‑in‑chief, to evidence that had been given by Constable Paton concerning the luminol testing of the landcruiser. As has been mentioned, Constable Paton had prepared a diagram showing the areas in which there had been a positive reaction to the luminol. These included the steering wheel, the floor pan, the accelerator, the ignition area, the driver's seat area, the rear driver's "pillar" and the "side window beam". He was asked whether this evidence was consistent with Mr Egan's notes of his examination. He responded that Mr Egan had found that each of the accelerator pedal, clutch pedal and brake pedal was KM negative (although he accepted that the accelerator pedal and floor pan were "different locations"). He also mentioned that Mr Egan had found that the driver's seatbelt, the gear stick, the steering wheel, the parking brake and the driver's door handle had all been KM negative. He concluded that the positives found in the course of the luminol testing may have been false positives, as Mr Egan had found so many negatives in similar areas.
Professor Boettcher was cross‑examined in respect of his comment that the two sets of samples (the Egan swabs and those taken by Constable Malins) had given a different pattern of results. He accepted, as a possible explanation, that the samples had been taken from different places in the landcruiser. He also accepted that, if there was evidence from experienced forensic officers that they had found visible blood, he would "rely on" this evidence.
Finally, Professor Boettcher was cross‑examined about his comments concerning the times annotated on the tubes containing swabs PM 6 to 10 and in respect of the logging of Batches 2 and 3. As to the former, he acknowledged that the recorded times might have been those at which the stains were "lifted", rather than the times of testing. As to the latter, he accepted that, if Batch 3 came from heavier stains than Batch 2, there might be "more urgency or more point to analysing or sampling Batch 3 before Batch 2". He also accepted that, if swabs PM 6 to 10 came from more heavily stained areas, this might account for the greater "success" in obtaining positive results from those swabs.

Mr Egan's evidence

The respondent led evidence from Mr Egan in response to that given by Professor Boettcher.
Mr Egan said that the use of the KM test is standard in the laboratory in which he works. He was confident that it is standard around the country as a presumptive test for blood. He said that the Takayama test referred to by Professor Boettcher was not used because it is "a very involved" test and because the testing agent is potentially hazardous.
Mr Egan described the standard testing process. He said that forensic investigators ordinarily looked, first, for a visual sign of blood in the form of a red or red/brown coloured stain that was consistent with the texture of dried blood. This is followed by the testing of the stain using the KM process. If that produces a positive result, a sample is removed from the stain for the purpose of obtaining a DNA profile which is "human specific". If a human profile is obtained, it will ordinarily be concluded that the DNA profile came from blood. Mr Egan acknowledged that this is not always the case and that sometimes other blood sources might cover up cellular material.
Mr Egan was asked why he had examined swabs PM 6 to 10 before examining the swabs which he had himself taken from the landcruiser. He said that he did so because he had been told by Constable Malins that the stains that Malins had found seemed much stronger than those that had been seen by Mr Egan. He said that there was a better prospect of obtaining a DNA profile from a larger stain.
Next, Mr Egan was asked why Batch 3 had been logged before Batch 2. He said that he had labelled the samples that he had taken from the landcruiser as Batch 2 and that he had put them in secure storage in a drying oven without logging them. He said that, when Batch 3 was received during the next morning (a Saturday), that batch was logged by him upon receipt. However, he did not log Batch 2 until the following Monday morning. He said that this was a matter of no significance and that it was merely a clerical mistake on his part.
Mr Egan was also asked about the labelling of the tubes containing swabs PM 6 to 10. He said that he had written the times that appeared on those labels and that they are a transcription of notes that had accompanied the swabs. His understanding was that the times that he had transcribed were those at which each sample had been taken from the landcruiser.
Mr Egan was asked to "grade" the merits of luminol, HS and KM testing. He said that he would put KM "up the top" because of its ease of use and because the "things" with which it reacts are "small and easily identifiable". He rated luminol next and HS last. He said that HS was not as specific as the other tests.
When asked, in the course of cross‑examination, why he had not lifted up the back seat in order to examine the area under it, he explained that he had had limited time because he was in a borrowed car which had to be returned that afternoon. He said that the normal procedure was to examine the car in the condition in which it was found and then to examine other areas. He said that, if his available time had permitted this, he would have performed further testing on the underside of the back seat.
Mr Egan acknowledged that he had effectively excluded the possibility that blood was present on the floor of the luggage compartment. He had earlier said that he had thought that this would be the most obvious place to find blood. He also acknowledged that there was no way of telling the age of a dried bloodstain. He agreed that it was possible that DNA from a source other than blood might be found underneath a bloodstain that was not human. Mr Egan also acknowledged that some plants, vegetables and cleaning fluids were known to "cross‑react" with the active ingredient used in KM testing.
When asked whether a negative luminol result might be expected from an area which had previously produced a positive result on KM testing, Mr Egan said that this was possible if the whole of the stain was removed in the course of sampling. However, he agreed that it is extremely difficult to remove every trace of a bloodstain.

Principles relating to the failure to disclose evidence

In Mallard v The Queen (2005) 224 CLR 125 at [17], Gummow, Hayne, Callinan and Heydon JJ noted that Grey v The Queen (2001) 75 ALJR 1708 stands as authority for the proposition that the prosecution must, at common law, disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. They also referred, at [16], to the "Statement of Prosecution Policy and Guidelines" made and gazetted pursuant to the Director of Public Prosecutions Act 1991 (WA) on 3 November 1992. Paragraphs 57 to 60 of those guidelines read as follows:
"Disclosure of Crown case
57.The Crown has a general duty to disclose the case in‑chief for the prosecution to the defence.
58.Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.
Disclosure of information to the defence
59.When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence ‑
(a)the nature of the information;
(b)the identity of the person who possesses it; and
(c)when known, the whereabouts of the person.
60.These details should be disclosed in good time."
In Mallard, Kirby J, after reviewing the relevant authorities, said (at [81]) that the review indicated "the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial (RPS v The Queen (2000) 199 CLR 620 at 630 [22]), of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial". He said that such evidence must ordinarily be provided by the prosecution to the defence, more especially in circumstances in which the evidence might cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for an accused.

In dealing with the question for the Court in a case of non‑disclosure, Kirby J said at [83] and [84]:
"Ultimately, where there has been non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, the question is whether the omission has occasioned a miscarriage of justice. This is so both by the common law and by statute [relevantly because of the terms of the Code, s 689(1) (now s 30(4) of the Criminal Appeals Act 2004 (WA))] … The courts are guardians to ensure that 'justice is done' in criminal trials (Stinchcombe [1991] 3 SCR 326 at 333; cf Berger (1935) 295 US 78 at 88). Where the prosecutor's evidentiary default or suppression 'undermines confidence in the outcome of the trial' (Kyles (1995) 514 US 419 at 434), that outcome cannot stand. A conviction must then be set aside and consequential orders made to protect the accused from a risk of a miscarriage of justice. At least, this will follow unless an affirmative conclusion may be reached that the 'proviso' applies - a conclusion less likely in such cases given the premise.
In a case of very limited non-disclosure which the appellate court concludes affirmatively to have been unlikely to have altered the outcome of the criminal trial, the proviso may be applied as it was in Lawless ((1979) 142 CLR 659). However, in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand. Such was the case in Grey ((2001) 75 ALJR 1708; 184 ALR 593)."

Fresh/new evidence

There is, under the common law, a well‑established distinction between "new" and "fresh" evidence. New evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered: see Mickelberg v The Queen (2004) 29 WAR 13 at [410] ‑ [411]; Beamish v The Queen [2005] WASCA 62 at [9].
The rationale for setting aside a conviction on the ground of fresh evidence was said by Toohey and Gaudron JJ in Mickelberg v The Queen (1989) 167 CLR 259 at 301 to be that the absence of that evidence from the trial was, in effect, a miscarriage of justice (see also Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410; Beamish at [10]). Different considerations have been said to apply in the case of new evidence. In Lawless v The Queen (1979) 142 CLR 659 at 675 ‑ 676 Mason J said:
"However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."
In Mickelberg, at 301, Toohey and Gaudron JJ said:
"There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v. The Queen (1974) 131 CLR 510 at pp 516-517, per Barwick CJ … "
It has been suggested that the distinction between fresh and new evidence is not as significant as it once was: see, for example, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement. However, as this Court has noted in Easterday v The Queen (2003) 143 A Crim R 154 at [204] and in Beamish at [13], the distinction is one which is soundly based in principle and which continues to be recognised, even though there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials: see Ratten v The Queen (1974) 131 CLR 510 at 517; Mickelberg (High Court) at 301; De La Espriella‑Velasco v The Queen (2006) 31 WAR 291 at [150] ‑ [153].
Where the evidence is fresh, the test appears to be whether there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted the accused: see Gallagher, at 399, 402 and 421; Mickelberg, at 273, 275 and 302; Beamish at [14].
In this State, the admission of evidence for the purposes of dealing with an appeal is provided for by the Criminal Appeals Act 2004 (WA). Section 39(1) of that Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that subs (1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Sections 40(1)(a), (b), (d) and (e) read as follows:
"40. General powers to deal with appeals
(1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence; … "
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they "should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction": CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella‑Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.
In this case, counsel for the appellant acknowledges that the evidence of Professor Boettcher is new and not fresh. However he contends that, had there been disclosure of Mr Egan's materials, evidence of the kind now given by Professor Boettcher would very probably have been led at the trial. He suggests that it is consequently appropriate, when considering the undisclosed material, to ask whether, if it had been disclosed, the disclosure might have influenced the result of the trial, taking into account the probability that, had there been disclosure, evidence of the kind now given by Professor Boettcher would have been led at the trial.

The appellant's contentions

The appellant's contentions, made in light of the Egan materials and Professor Boettcher's evidence, essentially amount to five propositions.
The first is that the failure to find any blood in the luggage compartment or on the back of the rear seat of the landcruiser is significant for two principal reasons. The first reason is that it points strongly to the conclusion that Mrs Rinaldi's body was not placed there, that having been the obvious place to put it, had the appellant been her killer. The second reason is that the absence of Mrs Rinaldi's blood in the areas examined by Mr Egan casts doubt upon the conclusion that the blood found elsewhere, if it was blood, came from her.
The second proposition is that, while it was always the case at the trial that there was no evidence that Mrs Rinaldi's blood had been found in the luggage compartment, positive evidence that comprehensive testing for her blood had been carried out, without finding it, strengthened the defence case in that regard.
The third proposition is that the reliability of the positive results obtained from swabs PM 6 to 10 is called into question by the fact that subsequent luminol testing did not produce a positive result in all of the five areas swabbed by Constable Malins. Because substances other than human blood (including blood from animal meat) might produce a positive result upon KM testing, and because Mrs Rinaldi's DNA could have been deposited in the stained area at any time and in any number of ways, counsel for the appellant contends that it could not reliably be concluded that the material tested was human blood.
The fourth proposition is that, if swabs PM 6 to 10 did contain human blood, the fact that those swabs contained DNA consistent with that of Mrs Rinaldi did not necessarily mean that the blood was her blood. This is because her DNA could have been deposited, at any time, in the area in which the blood was found.
The fifth proposition relies upon the criticisms made by Professor Boettcher concerning the fact that Batch 3 was logged and submitted for testing before Batch 2, notwithstanding that the swabs comprising Batch 2 had been taken earlier than those comprising Batch 3 and in circumstances in which the likelihood of obtaining a DNA profile from either set of swabs would not have been known until testing was complete. This evidence is said to be part of that capable of raising a reasonable doubt whether there was any of Mrs Rinaldi's blood in the appellant's landcruiser, consistent with that vehicle having been used to carry her body.

The first proposition

As to the first of those propositions, it is true that the failure to find any blood, or any DNA matching that of Mrs Rinaldi, in the luggage compartment or on the back of the rear seat points to the conclusion that Mrs Rinaldi's body was not placed there. However, as I read the trial transcript, it was never the prosecution's contention that it was placed there. The prosecution case was that Mrs Rinaldi's body had been placed in the landcruiser by means of the rear door on the driver's side of the vehicle. In his closing address to the jury, the prosecutor did not say this expressly. However, it sufficiently appears from what he said, as follows:
"If you imagine … the accused man dragging the body into the back from outside, then particularly if there were, as one would expect, head shots involved it's quite conceivable that blood would reach the top of what was the side of the back seat in the way demonstrated on the video because that's where the blood is. The blood isn't just in one spot. It's in a number of areas and it's visible in the video along what is the top when it's taken out of the back of the back seat.
Of course to carry out that exercise, the only purpose of putting up the back seat is to put down the very rear seat to provide storage and carrying space and that's what would be required if you were going to transport a body …
It's noticeable as well when you look at the blood in the 4‑wheel drive that the positioning is at the driver's side … You have the sketch that shows the luminol reaction of the driver's seat. Again that's consistent with the offender being the driver, being involved in what happened with the deceased woman, and there is also some blood indeed around the rear passenger door but on the driver's side. The blood was principally on the driver's side."
The prosecutor next referred to evidence that had been given at the trial by Mr Mark Bryson, who lived on the same street as Mrs Rinaldi. Mr Bryson said that he had seen a white four wheel drive vehicle reverse parked in front of Mrs Rinaldi's unit on Sunday 1 September 2002. The prosecutor said that the existence of blood on the driver's side of the landcruiser was consistent with Mr Bryson's evidence. He went on to say:
"I will come to that a bit later but it was adjacent to the gate; again consistent with blood markings that the deceased woman was taken into the car with the car in that position, so you would expect to find blood on the driver's side as indeed occurred."
All of this seems to me to indicate that the prosecutor was suggesting that the body had been placed in the area in which the seat would have been were it not for the fact that the bench part of that seat had been folded up against the rear of the front seat and the rear part of the back seat had been folded down. This accords with what had been said by him in his opening address (transcript 22). He said, in this respect:
" … [B]lood was found visibly in the back seat. Perhaps I can explain it this way: this is an older model of Toyota landcruiser. To obtain a greater carrying area, you bring up the bench seat, the rear seat, by rotating it forwards and upwards and then put down the very back seat to give a larger area to carry things …
Blood consistent with the deceased woman's blood was found on the top of the back seat, the cushion seat, when it was raised to put the back seat down to obtain more carrying space, if you follow what I mean. Blood was along the top of that which is the rear edge of the rear seat. Of course when the rear seat … [is] put back down, it's not visible but that was the position."
My understanding of what was said by the prosecutor appears to be consistent with that of the trial Judge. She said, in this respect (transcript 175):
"The State also relies on Mr Bryson's evidence that a vehicle that was strikingly similar to the accused's vehicle was parked near Anne Rinaldi's unit on Sunday, 1 September and it was reverse parked, so the blood shown on the luminol sketch of the vehicle would correspond with a car being reversed and the body being placed in on the driver's side. That's the Crown position."
Neither counsel sought to correct what her Honour had said in that regard.
I should add that I am not persuaded that the luggage compartment of the landcruiser was the obvious place to put a body. That might depend upon the way in which the vehicle was parked or even on what was thought to be the best method of concealment by the person loading the body.
I am also unable to accept the appellant's contention that the absence of Mrs Rinaldi's blood or DNA in the luggage compartment and in other areas examined by Mr Egan casts doubt upon the conclusion that blood found elsewhere, if it was blood, came from her.
Counsel for the appellant, and seemingly also Professor Boettcher, relied in this regard to some extent upon the assumption that, if Mrs Rinaldi's body was placed in the landcruiser, more blood would have been found than was found. That assumption is said to be supported by the evidence of Dr Margolius that the amount of blood present in the unit was so great as to lead her to conclude that, in the absence of medical treatment, Mrs Rinaldi would have died from her wound or wounds. However, the fact that Mrs Rinaldi bled profusely in the unit does not mean that her body continued to do so when it reached the landcruiser. The evidence to which I have earlier referred suggests that the amount of blood diminished as the body was taken towards the car. Also, there is nothing to exclude the possibility that the body was wrapped in a blanket, or a sheet of plastic or the like, or that an item of that kind was placed on the floor of the landcruiser before the body was placed in it.
Counsel for the appellant also submitted that the location of the stains identified as blood by the forensic personnel who gave evidence at the trial is inconsistent with the body having been placed in the back of the landcruiser, whether in its luggage compartment or elsewhere. Again, I am not persuaded by this submission. It is a matter of speculation, giving rise to a number of different possibilities, how the blood was transferred to the sites in which it was found. To take one example, the floor of the landcruiser, as I have said, may have been protected by some form of covering in the course of loading the body into the vehicle through the rear passenger side door, but some blood was nevertheless transferred to the places in which it was found during the loading process. I am not aware of anything in the location of the stains relied upon that is inconsistent with this possibility. I should add that there are various ways in which the body might have rested in the vehicle.
It seems to me to be fundamentally important, in this respect, that DNA matching that of Mrs Rinaldi was obtained from swabs PM 6 to 10. Also, swabs taken by Constable Paton from the rear of the driver's seat and the rear of the centre seat produced DNA which matched that of Mrs Rinaldi.
Next, it is important to bear in mind that, even though trial counsel for the appellant knew that there was no evidence that any blood had been found in the luggage compartment of the landcruiser, she made no point in that regard in the course of her closing submissions. Nor did she dispute that what had been found elsewhere in the landcruiser was blood. She said, in this last respect (page 14 of the transcript of her closing address):
"Then the State also relies upon the blood in the 4‑wheel drive. What do we know about the 4‑wheel drive; that Mr Rinaldi had owned it since about 1979, 1980; that the parties did not separate finally until 1996; that clearly Mrs Rinaldi had used the vehicle and clearly there is no way of knowing to what extent and how many different ways on how many other occasions she had been in that vehicle. There is no evidence to suggest the age of the particular blood found in the vehicle and there is no evidence therefore, I would suggest, that you can conclude beyond reasonable doubt that it is recent. Beyond reasonable doubt can you conclude how it got there?"
She also said, when dealing with the luminol testing done by Constable Paton and with the sketch that had been prepared by him (page 15 of the transcript):
"The other point which [you] may or may not consider of any significance is in relation to the sketch. When you look at the sketch for the luminol examination of those supposed bloodstains you can see the highlighted bit where the luminol was fluorescing and you can see the officer's indication of the numbers that were attached to the swabs that he took from those particular sites. What you will then see when you compare that with Mr Bagdonavicius' forensic biology report is it is only swabs 6 to 10 that he examined and found to actually contain the blood that was consistent with Mrs Rinaldi's toothbrush, comb, et cetera.
There's no results given for the swabs which are 1, 2 and 3, for example, in the vicinity of the ignition of the vehicle. So it's only the rear samples that ultimately Mr Bagdonavicius was able to help us with … 6 to 10 were the swabs from the rear seat, underside seat, top seat, seat cream strip and seat top edge."
It is important to note, in this respect, that the appellant's trial counsel did not cross‑examine Mr Bagdonavicius in respect of that part of his report dated 17 October 2002 (which, as I have said, is one of the reports making up trial exhibit 23) in which he said that swabs PM 6 to 10 had given positive reactions for blood when screened chemically. Also, her cross‑examination concerning his conclusions with respect to the finding of DNA, matching that of Mrs Rinaldi, on those swabs was limited to questions asking him to explain how he had arrived at the probability figure given by him in his report dated 8 March 2004.

As I have said, Ms Hillel arrived home at "about" 10 pm on Monday 2 September 2002. It is consequently possible that she arrived shortly after the shots were fired. Her evidence is significant insofar as it reveals that Mrs Rinaldi was not moving around, as she usually did, on the following morning. This suggests that she was killed at some time during the preceding night. The existence of the discharged cartridge near a pool of blood indicates that she was killed by a rifle shot.
Mr Hamilton's evidence seems to me to take the matter no further. He went out onto his balcony at "about" 10 pm, possibly after the shots were fired. I have mentioned that he said that, when in his unit, the noise from his airconditioner was such that he could not hear anything outside.
Mr Jose's evidence is more significant. However, as I have said, he was unsure whether he saw the car to which he referred in the early hours of 3 September or on the night of Sunday 1 September 2002. If he did see the car on the night of 1 September 2002, his description of it is very different to that given by Mr Bryson, who said that he saw a four wheel drive vehicle in the driveway. However, the two men may have seen different vehicles at different times and, of course, that was not the night on which Mrs Rinaldi was killed.
The statements of Woodhouse, Hollingsworth and the two Granvilles were made in September and October 2002. The appellant contends that they are important in establishing his whereabouts on the night of 2 September 2002. He says that this is particularly significant given that, after the jury had retired to deliberate, they sent to the trial Judge a note asking where the accused had been when the "incident" occurred. In his affidavit, the appellant says that on the evening of 2 September 2002 he went to the Lone Ranger Shooting Club in Belmont and that the statements of these four witnesses confirm that he was there.
However, Troy Granville's statement records that the Club premises closed at 9 pm that night. Trevor Granville's statement says little more than that the appellant was at the range that evening. The statement of Rohan Woodhouse reveals that, when he helped close the shooting range at about 9 pm, the appellant had already left. The statement of Mr Hollingsworth records that the appellant left the range shortly after 8.45 pm that night. There is accordingly nothing in any of these statements that would suggest that the appellant could not have been at Mrs Rinaldi's unit at about 10 pm that night. The appellant appears to have appreciated that these statements do not assist him. His evidence before us was to the effect that he believed them to be inaccurate (transcript 185).
In his affidavit, the appellant asserts that there was no discussion with Ms Braddock concerning the question whether or not these witnesses, or any of them, should be called to give evidence. His affidavit reveals that Ms Braddock visited him in prison on only three occasions. The first was on 8 July 2003. That visit lasted about 30 minutes. The second visit took place on 23 February 2004. It lasted for around an hour. The third visit was on the afternoon of Friday 12 March 2004. It lasted for about 20 minutes.
In her oral evidence, Ms Braddock said that her recollection was that the issue of witnesses was discussed during the conference on 23 February 2004. She said, in that respect (appeal transcript 208):
"I have some very scrappy handwritten notes in relation to that. My recollection is that witnesses were, as it were, first on the agenda at that conference. Obviously both ‑ in two senses was what were the witnesses that were proposed to be called by the prosecution and what were the witnesses that Mr Rinaldi wished to have called. My recollection is his response was, 'There aren't any witnesses. It's all what other people have been told'."
Ms Braddock was cross‑examined in respect of the witness statements made available to her in the prosecution brief. She said, as regards the evidence of Ms Hillel, that her recollection of time was "somewhat approximate". She also said that, by the first day of the trial, she did not propose to call any witnesses on behalf of the defence. There were initially something like 130 "witnesses" in the State brief and she and the prosecutor had negotiated with respect to the "culling" of these. She and the prosecutor exchanged correspondence concerning the witnesses proposed to be called. By about mid‑November 2003, the point was reached where the number of witnesses had come down to around thirty. Because her leg was injured she was, at that time, working from home. She asked Ms Horrigan to tell the appellant which witnesses were to be called by the prosecution and to ask him whether he wanted anybody else to be called.
In all of these circumstances, it seems to me that there is nothing in the matters raised which should lead to the conclusion that the trial was unfair or that there was otherwise a miscarriage of justice.

Conclusion ‑ ground 3

I am accordingly not persuaded that any of the three broad propositions contended for in ground 3 has been made good. I am also not persuaded that, taken together, the matters raised resulted in the trial being unfair or that there was otherwise a miscarriage of justice.
Ground 3 consequently fails.

Ground 4

Two misdirections on the part of the trial Judge are complained of in ground 4. The first relates to her comment to the jury that it was not in dispute that Mrs Rinaldi was killed with a rifle. The second relates to a reference, in her summing up, to Mrs Rinaldi's blood having been found in the landcruiser.
As to the first of these, the trial Judge, having recounted the material circumstances as they had emerged from the evidence, told the jury (transcript 173):
"What you have to determine is whether the only reasonable inference available from all of those circumstances considered together is that Mrs Rinaldi was killed. That's the task and in that context you can see how you have got to apply the rules to the process of making factual findings and being satisfied beyond reasonable doubt ‑ as I have said, I do not understand it to be controversial but having regard to all those circumstances ‑ that Anne Rinaldi was killed … and was killed with a gun, a rifle."
Later, in the course of discussing the element of intention, the trial Judge said (transcript 179):
"Once again, intention ‑ look at all of the circumstances, really the circumstances that were relevant to the scene in which Anne Rinaldi was killed. It was by gunshot in a small area, there was extensive blood loss. Those matters, you might think, would satisfy you, but it's entirely a matter for you, that the intention was to kill."
Counsel for the appellant, in suggesting that these comments concerning the death by gunshot wound amounted to a misdirection, relied upon the fact that there was no direct evidence that Mrs Rinaldi was killed by a gunshot. Also, no gunshot residue was found in her unit and there was no evidence of how the spent cartridge had found its way into the unit.
While it is true that there was no evidence of the kind referred to, it is common cause that there was no suggestion at the trial, by the appellant's then counsel or anyone else, that Mrs Rinaldi was not killed by a gunshot, as contended for by the prosecution. That being so, and in circumstances in which a spent cartridge was found near a pool of Mrs Rinaldi's blood and a nearby witness had heard what he understood to be gunshots, it seems to me to have been unsurprising, and entirely appropriate, that the trial Judge should have said to the jury that she did not understand it to be controversial that Mrs Rinaldi was killed with a gun.
As to the second alleged misdirection, the trial Judge, after telling the jury that the controversial issue in the case was whether Mrs Rinaldi had been killed by the appellant, said, in the course of dealing with the relevant evidence (transcript 173 ‑ 174):
"What is the connecting evidence or the circumstances? There is the cellular material recovered from the swabs taken by Officer Peter Malins from the accused's white four wheel landcruiser and there is the DNA evidence from the gun bag that the accused gave to police officers at his home on the day when the firearm search warrant was executed.
I have referred you to the evidence of the forensic scientists about the probabilities of that blood being that of Anne Rinaldi.

I don't think it's seriously suggested by anyone that it is someone other than Anne Rinaldi's blood."

Counsel for the appellant contends that the trial Judge erred by referring to blood and also by saying that it was not seriously suggested that the blood belonged to anyone other than Mrs Rinaldi. He pointed to the fact that the evidence had established no more than that the stains had tested positively on a presumptive test for blood and that Mrs Rinaldi's DNA had been found on the swabs taken from the stained areas. He contended that this evidence proved only that Mrs Rinaldi's DNA had been found, and not that it was her blood that had been found, if what was found was blood.
I have already referred to the material evidence in this respect. Constable Malins, when dealing with swabs PM 6 to 10, described the material swabbed as "visible blood". It was never suggested to him, or to anyone else, that what he had seen and swabbed was not blood. The evidence revealed that the swabs had tested positively for blood, albeit presumptively, and that they contained human DNA (matching that of Mrs Rinaldi). I have said that Ms Braddock, in her closing submissions, accepted that what had been found was blood. There was no suggestion by anyone that the blood belonged to someone other than Mrs Rinaldi. The real issue at the trial, in relation to the blood, was, as I have said, how long it had been there. I have said that Ms Braddock, in her closing submissions, referred to swabs PM 6 to 10 as having contained "the blood that was consistent with Mrs Rinaldi's … [DNA]". She did not suggest, and nor did anyone else, that the DNA had not come from Mrs Rinaldi's blood which, of course, was found in a number of different places in the landcruiser.
In all of the circumstances, I am not persuaded that there was any misdirection. The issues were as the trial Judge described them and the evidence was appropriately referred to by her.
Ground 4 has consequently not been made out.

Conclusion

I would dismiss the appeal.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.

PULLIN JA: I agree with Steytler P that the appeal should be dismissed for the reasons that he has given. The reasons I have added below are limited to the appellant's submission about the effect of the nondisclosure of the Egan evidence.
The law requires a prosecutor to disclose all relevant evidence to an accused. A failure to do so will result in a miscarriage of justice: Mallard v The Queen (2005) 224 CLR 125 at [17]; Grey v The Queen (2001) 75 ALJR 1708. A miscarriage of justice occurs whenever a trial is not conducted according to law; when some "irregularity" has occurred (see Weiss v The Queen (2005) 224 CLR 300 at [18] and [36]; Bounds v The Queen (2006) 80 ALJR 1380 at [78]). However, this Court may decline to set aside a verdict where it concludes that the miscarriage does not involve a substantial miscarriage of justice (see s 30(4) of the Criminal Appeals Act 2004 (WA) (see Weiss at [35], [39] and [40]; King v The Queen (2003) 215 CLR 150 at [100]).
In this appeal the appellant contends that the evidence not disclosed was relevant evidence. Whether evidence is relevant will be determined by reference to the "contested" issues in the case: Mallard (supra) per Kirby J at [81]. Although the onus is always on the prosecution to prove all elements of a charge beyond reasonable doubt, the issues which are truly in contest will vary from case to case. In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ said:
"As Smith J rightly said … 'Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence' [[1974] VR 201 at 214]. It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in‑chief or in cross‑examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility."
In Nudd v The Queen (2006) 80 ALJR 614 at [9], Gleeson CJ said that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding "what issues to contest" and what "lines of argument to pursue".
It is necessary to bear in mind, however, that the protagonists set the issues by reference to the material which is known to them. The nondisclosure of material may mean that the accused and his or her advisors are not alerted to the need to raise, or the desirability of raising, an issue.

What were the contested issues in the case and would the disclosure of the Egan evidence have caused the appellant to alter the issues?

The prosecution lead evidence that blood was found in the appellant's vehicle and other evidence was led to the effect that it was the victim's blood. No issue was raised by the appellant about the fact that blood was found in the appellant's vehicle, nor was an issue raised about the fact that it was the victim's blood. The issue the appellant raised was that the prosecution had not been able to establish the age of the blood, although he did this without leading any evidence of any occasion (other than when the victim was allegedly killed) on which the victim's blood may have been deposited there. The President has set out in his reasons the evidence which was led at the trial and the way the case was conducted. It is not necessary for me to repeat it.
The appellant on this appeal now seeks to lead new evidence via Professor Boettcher to raise issues that the material was not blood at all, that any DNA of the victim which was detected may have been deposited at some earlier time not related to the time when the appellant's wife was killed, and that the victim's DNA may not have been in the blood at all. Putting aside the effect of the nondisclosure of the Egan evidence, the new evidence reveals no miscarriage of justice. That is so because the new evidence never reaches the point of establishing that the appellant was innocent or that he should not have been convicted. The new evidence does not do more than lead to the possibility that the jury may have reached a verdict of not guilty. This does not establish the existence of a miscarriage of justice: Lawless v The Queen (1979) 142 CLR 659 at 675 ‑ 676.
However, the appellant submits that the nondisclosure of the Egan evidence meant that he was not alerted to the need to consider raising an issue about whether there was blood in the vehicle and, if blood, to raise an issue about whether it was the blood of the victim. In my opinion the submission must be rejected. The new issues could have been raised at the trial and the undisclosed Egan material does not bear upon the decision, which was made at trial by the appellant, to raise no issue that the victim's blood was found in the vehicle. Indeed, an innocent person accused of murdering his wife would surely make every effort to dispute evidence of the existence of his wife's blood in his vehicle if he did not place her body in it and if there was no other occasion he knew of when his wife had deposited blood there. The appellant did not raise these issues.
The appellant submitted that the prosecution case was advanced on the basis that the victim was shot by the appellant, the body dragged through the unit and outside and then loaded into the "rear" of the four‑wheel drive. The appellant submits that the Egan report, if it had been disclosed, showed no positive reaction to blood in chemical tests that Mr Egan conducted on Friday 6 September in the rear of the vehicle in the area where the victim's body would have been stowed if it had been loaded through the tailgate door.
The assertion that this was the Crown case is not correct. The prosecution case was that blood was in the back seat area. The prosecutor in opening the case made no suggestion at all that the body was loaded into the "rear" of the vehicle meaning the area to which access is gained via the tailgate. He opened on the basis that blood was found on the top of the back seat.
In closing the case and addressing the jury, the prosecutor said (AB 54):
"If you imagine it - and you may not wish to imagine it but if you imagine a body being dragged from inside - the accused man dragging the body into the back from the outside, then particularly if there were, as one would expect, head shots involved it's quite conceivable that blood would reach the top of what was the side of the back seat in the way demonstrated on the video because that's where the blood is. The blood isn't just in one spot. It's in a number of areas and it's visible in the video along what is the top when it's taken out of the back of the back seat.
Of course to carry out that exercise, the only purpose of putting up the back seat is to put down the very rear seat to provide storage and carrying space and that's what would be required if you were going to transport a body."
A little later the prosecutor said:
"It's noticeable as well when you look at the blood in the four‑wheel drive that the positioning is at the driver's side. Remember the luminol reaction? You have the sketch that shows the luminol reaction of the driver's seat. Again that's consistent with the offender being the driver, being involved in what happened with the deceased woman and there is also some blood indeed around the rear passenger door but on the driver's side. The blood was principally on the driver's side."
This does not in any way suggest that the prosecution advanced the case that the body was loaded into the rear of the vehicle. On the contrary, it reveals a suggestion by the prosecution that the body was loaded into the rear seat area from the driver's side rear door. Her Honour in summing up did not suggest that the prosecution alleged that the body of the victim had been loaded into the vehicle via the rear door.
I agree with the appellant's submission that there is a distinction between absence of evidence of the existence of something and evidence that the thing does not exist. However, I agree with the President's conclusion that the distinction is not significant in the context of this case. I therefore conclude that there was no miscarriage of justice.
However, it may be that other minds will form the view that the Egan evidence was relevant because there was no formal admission by the appellant at trial that the victim's blood had been found in the vehicle. From that position, it might be said that any evidence about the existence or non‑existence of the victim's blood in the vehicle during the police examination was relevant to the prosecution case. If that were so, then the nondisclosure of the Egan evidence would amount to a miscarriage of justice. As explained in Weiss (supra) [18], a miscarriage of justice occurs when there is "any" departure from a trial according to law "regardless of the nature or importance of that departure".
However, the question then arises as to whether the miscarriage is a "substantial" miscarriage. In circumstances where the prosecution did not allege that the body was loaded into the back of the vehicle, the positive evidence that there was no blood found in the back, as opposed to the absence of evidence at trial that there was blood found in the back of the vehicle, would not have altered the outcome of the trial or the way it was conducted.

The nondisclosure of the Egan evidence did not undermine the effective presentation of the defence case or the selection of issues by the appellant. The nondisclosure did not produce a radical or fundamental flaw in the trial process: Wilde v The Queen (1988) 164 CLR 365 at 372 ‑ 373. There was no substantial miscarriage of justice and so the appeal should be dismissed.