The State of Western Australia v Pope [No 3] - [2020] WASC 438

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- POPE [No 3] [2020] WASC 438
CORAM:   DERRICK J
HEARD:   11 NOVEMBER 2020
DELIVERED          :   13 NOVEMBER 2020
PUBLISHED           :   1 DECEMBER 2020
FILE NO/S:   INS 260 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

MARINA GERTIE POPE
Accused

Catchwords:

Criminal law - Application under s 158 and cl 7(1)(b) of sch 3 of the Criminal Procedure Act 2004 (WA) to admit audio recording of witness's evidence

Evidence - Objections to admissibility of bloodstain pattern analysis evidence and DNA analysis evidence - Relevance of evidence - Whether fact that stains on jumper worn by accused were bloodstains is an indispensable component of prosecution case - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Application by State to admit audio recording of witness's evidence allowed
Accused's objection to admissibility of evidence dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr L Hobson and Ms S M Manson-Grumley
Accused	:	Ms H E Prince

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Helen Muhling

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

Chaudhry v The Queen [2007] WASCA 37
Daniels v The State of Western Australia [2010] WASCA 200
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Galea v The Queen (1989) 1 WAR 450
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
The State of Western Australia v Muller [2015] WASC 199
The State of Western Australia v Pope [No 2] [2019] WASC 345
Thong v The State of Western Australia [2020] WASCA 182

DERRICK J:

(These reasons were delivered orally on 13 November 2020 and have been edited from the transcript)

Introduction

The accused is charged on an indictment dated 29 November 2018 with one offence of murdering Mr Travis Patrick Wicker (the deceased) (count 1) and three offences of making a threat to unlawfully kill. The three complainants the subject of the three threat to kill charges are Ms Pamela Roslyn Morrison (count 2), Mr Douglas Elvis McArthur (count 3) and Mr Neil Edward Gerardi (count 4).
The accused's first trial on the charges commenced on 16 September 2019 (the first trial). However, on 26 September 2019 shortly before asking the jury to retire, I discharged the jury from giving verdicts on the charges pursuant to s 116(2) of the Criminal Procedure Act 2004 (CPA).
The accused's retrial is listed to commence on 16 November 2020. I will be the trial judge.
I now have before me an application by the State to admit the audio recording of the evidence given by one of the prosecution witnesses at the first trial, and an application by the accused to exclude certain categories of evidence.

The alleged facts of the State's case

The alleged facts of the State's case are apparent from the prosecutor's opening address at the first trial.[1] It is not necessary for me to repeat the alleged facts herein.
[1] ts 127 ‑ 134, 16 September 2019.

The issue at trial

At the first trial the accused asserted that she was not present in the unit when the deceased was stabbed or when any threats to kill were made to Ms Morrison, Mr McArthur and Mr Gerardi. The accused's position was that although she had spent the night at the unit in which the events the subject of the charges occurred, at the time of the events she was not at the unit and was walking around some nearby streets. Accordingly, the primary issue at the first trial was whether the accused was the offender, that is, was the person who had stabbed and killed the deceased and was the person who had made the relevant threats.

Application to admit audio recording of evidence

Background

I will deal first with the State's application to admit the audio recording of the evidence given by one of the prosecution witnesses at the first trial. The witness in question is Mr Gerardi, the complainant in count 4 on the indictment.
The application in its written form, which was filed on 22 September 2020, specified that the application was made under s 79C(1) and s 79C(2)(b) of the Evidence Act 1906 (WA). However, on the hearing of the application counsel for the State made clear that the application is not made under s 79C, but rather under s 158 and cl 7(1)(b) of sch 3 of the Criminal Procedure Act 2004 (WA) (CPA).
Mr Gerardi gave evidence at the first trial on 17 September 2019. His evidence appears at transcript pages 264 to 310.
It is not necessary for me to detail the evidence given by Mr Gerardi. It suffices to say that Mr Gerardi was one of four persons present at the unit at the time of the incident that is the subject of the charges (the other three persons being Ms Morrison, Mr McArthur and the deceased) and that his evidence, if accepted, went to prove that the accused was not only the person who stabbed the deceased, but also the person who made the threats the subject of counts 2, 3 and 4 on the indictment. In short, Mr Gerardi was an important prosecution witness.
It is worth noting that during the cross‑examination of Mr Gerardi at the first trial it was suggested to him that it was either he or Ms Morrison who, in the course of an argument with each other, had stabbed the deceased as the deceased had tried to get between the two of them (ts 309).
The State now makes an application for the audio recording of the evidence given by Mr Gerardi at the first trial to be admitted into evidence pursuant to s 158 and cl 7(1)(b) of sch 3 of the CPA on the ground that Mr Gerardi's medical or mental condition is such that he is unable to give evidence satisfactorily.
The application is opposed by the accused.

The evidence adduced in support of the application

The State has filed and tendered in support of the application an affidavit sworn on 3 November 2020 by Mr Hobson, who is a senior State Prosecutor employed by the Office of the Director of Public Prosecutions for Western Australia (DPP) and counsel for the State. Annexed to Mr Hobson's affidavit is a report prepared by Professor Flicker, consultant geriatrician, in relation to Mr Gerardi which is dated 16 September 2020 and which is addressed to Dr Depak Naran of the Derbarl Yerrigan Health Service. It is not in issue that Dr Naran is Mr Gerardi's general practitioner.
In addition to tendering the affidavit to which I have referred the State called Professor Flicker to give oral evidence.

Professor Flicker's evidence

I turn to Professor Flicker's evidence.
Professor Flicker's material evidence, given by reference to his report, was as follows.
He is the professor of geriatric medicine at the University of Western Australia.
He reviewed Mr Gerardi at Royal Perth Hospital Memory Clinic on 16 September 2020 on referral from Mr Gerardi's general practitioner.
Relevant history was obtained from Mr Gerardi's sister. She appeared to be a reliable historian.
Mr Gerardi's sister reported that Mr Gerardi had been having increasing memory problems over the last 10 years but particularly over the last two years. She further reported that Mr Gerardi sits around the house all day, drinks a lot of alcohol, smokes cigarettes and also smokes cannabis.
In 1992 Mr Gerardi suffered a very serious head injury which resulted in him being severely impaired cognitively for several months.
Mr Gerardi reported that he has been involved in several car accidents which have resulted in him suffering head injuries. Mr Gerardi was only able to provide limited detail about these car accidents.
Mr Gerardi reported that despite his cognitive problems he has been able to independently undertake personal activities of daily living such as washing, dressing and feeding, but that he has been unable to independently undertake instrumental activities of daily living such as travelling, shopping, preparing meals, housework, and managing his medications and finances.
He administered the Informant Questionnaire to Mr Gerardi's sister. The Informant Questionnaire is a standardised scale used to ask informants about any cognitive impairment they may have noticed over the last 10 years. On the basis of the answers given by Mr Gerardi's sister, Mr Gerardi's code score was very close to five which suggested major problems.
He reviewed Mr Gerardi cognitively. On formal cognitive examination Mr Gerardi was completely disorientated to time (that is, day, date and month) but was relatively orientated to place. He had no major language difficulties. His memory was impaired. He could recall three out of six objects without visual cues but six out of six objects with visual cues. He failed to recall any of three objects at five minutes and could only remember 2/5 facts of a name and address at five minutes. His verbal fluency was reasonable. He could name 14 animals in one minute. His general knowledge was probably intact.
Mr Gerardi has poor literacy and numeracy skills.
Mr Gerardi was able to do some aspects of tests of concentration. He had no obvious planning or praxis issues but was only able to follow a two stage command. He would forget the third part of the instruction. He had some difficulties with complex instructions.
Mr Gerardi's mini mental state examination score was 16/30 which may have been in part due to his poor literacy and numeracy skills but which still represents quite a degree of cognitive impairment.
Mr Gerardi had a CT head scan performed at Sir Charles Gairdner Hospital in June 2019. He was able to review the scan as well as the associated report. The scan demonstrated some quite marked frontal atrophy as well as evidence of periventricular lucencies.
The marked frontal atrophy could be due to a number of causes. First, it could be due to the head injury that Mr Gerardi suffered in 1992. Second, it could be due to prolonged alcohol ingestion.
The frontal lobe of the brain is a very important part of the brain in relation to overall emotional control and also control of what the rest of the brain is doing.
The periventricular lucencies revealed by the CT scan indicate that there are tiny holes in the white matter of Mr Gerardi's brain surrounding the ventricles. The existence of such tiny holes can be caused by a number of things. In people who are growing older, particularly older people with vascular risk factors, one of the major causes is a series of mini strokes.
The existence of tiny holes in the white matter of the brain can dramatically increase cognitive impairment. The amount of damage is an indicator of vascular damage, although this does not really indicate how bad the cognitive damage is.
There is a general correlation between the amount of periventricular lucencies and the degree of cognitive impairment. However, the correlation is not a tight one.
In his opinion Mr Gerardi definitely has evidence of dementia the cause of which is probably multifactorial, the contributing causes being severe head injuries, alcohol and cannabis use, and vascular disease. He believes that Mr Gerardi is incapable of giving reliable evidence based on his memory which, in his opinion, is relatively impaired and is worsening over time. His belief that Mr Gerardi's memory impairment is worsening over time is based on the history provided by Mr Gerardi's sister.
Dementia is a syndrome with multiple causes. A person has to have a disease of the brain to have dementia. The syndrome is currently defined by the fact that there must be memory impairment as well as cognitive dysfunctioning. The cognitive dysfunctioning must be severe enough to impact on the person's daily living in some way. Mr Gerardi has clear dysfunctioning in instrumental activities of daily living. Therefore Mr Gerardi fulfils the criteria for dementia and has evidence of brain disease which could be the explanation for the dementia.
One of the things associated with frontal lobe damage is an impact on the ability to regulate emotional responses to incidents. A person with frontal lobe damage can have outbursts of anger. However, when he examined Mr Gerardi he was by no means as disinhibited as some of the patients he has seen. Mr Gerardi was appropriate, co‑operative and was not irascible. He did not make any inappropriate comments. Nonetheless, it is still possible that he may be disinhibited in other more stressful situations.
His overall impression was that Mr Gerard's poor memory was not just due to poor literacy and numeracy.
In his opinion, given Mr Gerardi's periventricular lucencies and his frontal atrophy as revealed by the June 2019 CT head scan, it is likely that Mr Gerardi was cognitively impaired in June 2019. However, he cannot be certain about this because he did not examine Mr Gerardi at that time. He has no idea of the exact level of cognitive impairment that Mr Gerardi may have been manifesting before September of this year.
It is probable that if very sensitive testing had been done on Mr Gerardi in the mid‑1990s the tests would have revealed some cognitive impairment because of the frontal damage that was done as a result of the 1992 head injury. However, it is hard to quantify the degree of cognitive impairment that Mr Gerardi may have had in times past associated with his head injuries or his alcohol use. The fact that Mr Gerardi is still a smoker increases his risk of having further little strokes quite markedly. So one can speculate, but he certainly cannot be certain about Mr Gerardi's degree of cognitive impairment at any time prior to September this year.
Mr Gerardi's frontal atrophy could have been partly due to his head injury in 1992 so it is very likely that this is a longstanding problem that is getting worse.
His opinion that Mr Gerardi will be unable to give evidence in court is based on the fact that his memory is unreliable. Although Mr Gerardi's long term memory was relatively intact, the details of his memories were quite scanty. So although Mr Gerardi has not lost all of his long term memory, the details are obscure and he was not able to determine which of the details provided by Mr Gerardi were reliable and which were not reliable when he was taking Mr Gerardi's history.
Long term memories include memories from years ago, a year ago or six months ago.
Given Mr Gerardi's dementing process, it is hard to work out which bits of his long term memory he has retained and which bits he has lost.
So that is a statement of the relevant evidence given by Professor Flicker.

Pre-conditions for admissibility

Section 158 and cl 7(1)(b) of sch 3 of the CPA give to the court a discretion to admit into evidence a recording of a witness's evidence provided that certain pre-conditions are met. The pre‑conditions are as follows:
1.The recording must be made in accordance with cl 6 of sch 3; and
2.The witness's medical or mental condition must be such that the witness is unable to give evidence, or to give evidence satisfactorily.
There is no dispute between the parties that the recording of the evidence given by Mr Gerardi during the first trial was made in accordance with cl 6 of sch 3.
I note that implicit in the acceptance by the parties that the recording of the evidence given by Mr Gerardi during the first trial was made in accordance with cl 6 of sch 3, is the acceptance of the proposition that a recording of the witness's evidence can be made in accordance with cl 6 even though the recording was not made during a hearing conducted pursuant to an order made by the court under cl 5(4) of sch 3. In my view the parties' acceptance of this proposition is correct. A recording of a witness's evidence can be 'made in accordance with cl 6', specifically cl 6(4) to cl 6(7), even though the recording was not made during a hearing conducted pursuant to an order made under cl 5(4). Further, it would not make sense for cl 7(1) to be read in a way that, in cases of recorded evidence, limits its operation to recordings of evidence conducted pursuant to an order made by the court under cl 5(4).
I turn to the second pre-condition for admissibility of the audio recording, specifically that Mr Gerardi's medical or mental condition is such that he will be unable to give evidence, or to give evidence satisfactorily, at the accused's upcoming trial.
The accused concedes that the second pre‑condition for admissibility is met in Mr Gerardi's case.
The expert opinion evidence of Professor Flicker is that Mr Gerardi has dementia, an aspect of which is impaired memory, and that his impaired memory is such that he is now incapable of giving reliable evidence.
The evidence of Professor Flicker was not challenged. I accept his evidence. I therefore find that Mr Gerardi has dementia, and that as part of his dementia he has an impaired memory which has rendered him incapable of giving reliable evidence of the events the subject of the charge.
It is not suggested on behalf of the accused that impaired memory associated with dementia is not a 'mental condition' within the meaning of cl 7(1)(b). In any event, I am satisfied that it is.
Given that Mr Gerardi's dementia and associated impaired memory, that is, his mental condition, has rendered him incapable of giving reliable evidence of the events the subject of the charge, I am satisfied that Mr Gerardi's mental condition is such that he is unable to give evidence satisfactorily within the meaning of cl 7(1)(b). If a person's mental condition means that they do not have the ability to reliably recall events that they are being asked about the person's mental condition is, in my view, such that the person is unable to give evidence satisfactorily. I note that my view in this regard is consistent with the decision in The State of Western Australia v Muller.[2]
[2] The State of Western Australia v Muller [2015] WASC 199.
For these reasons I am satisfied that the pre‑conditions for the admission of the audio recording of the evidence given by Mr Gerardi at the first trial specified in cl 7(1)(b) of sch 3 are met.

Should the audio recording be admitted?

The question that remains is whether I should, given that the pre‑conditions for the admissibility of the audio recording of the evidence given by Mr Gerardi are met, exercise the discretion given to me by cl 7(1)(b) to admit the recording.
In exercising the discretion given to me I must have regard to cl 7(5) of sch 3. Clause 7(5) provides that a court may refuse to admit a recording under cl 7(1) if it is satisfied that the admission of the recording 'would be unfair to the party'. In this case the relevant party is the accused.
Although cl 7(5) provides that the court 'may' refuse to admit a recording under cl 7(1) if to do so would be unfair to the party, it is difficult to conceive of a situation where the admission of a recording in such a circumstance would be allowed.[3]
[3] Daniels v The State of Western Australia [2010] WASCA 200 [60].
There are a number of appellate decisions which have considered the admission of evidence under cl 7(1) or its predecessor, s 107 of the Evidence Act.[4] Although the cases have been concerned with the admission of a witness statement rather than an audio recording of a witness's evidence, the following generally applicable propositions can be derived from the cases:
1.The unfairness to which cl 7(5) of sch 3 is directed is that flowing from the fact that the jury is deprived of the opportunity of seeing and hearing the witness give their evidence;
2.The fact that the evidence goes to a central rather than a peripheral issue in the case and is prejudicial to an accused because of its tendency to show that they committed the charged offence is a factor in favour of the admission, not exclusion, of the evidence;
3.Consideration must be given to the practical unfairness which would arise from the absence of the witness given the likely course of the trial. Matters to be considered in this context include whether there are other means of challenging the witness's evidence, and whether the accused is unable to pursue lines of cross-examination to his or her material advantage;
4.In assessing unfairness it will be relevant to note the opportunity which may be presented to an accused to give evidence concerning or affecting the absent witness without fear of contradiction; and
5.It is necessary to consider whether unfairness occasioned by the fact that the witness is not called can be negated by directions given by the trial judge.
[4] Galea v The Queen (1989) 1 WAR 450; Chaudhry v The Queen [2007] WASCA 37; Daniels v The State of Western Australia [2010] WASCA 200.

With the above general propositions in mind I make the following comments.
First, the only thing that the jury will be deprived of if the audio recording of the evidence given by Mr Gerardi at the first trial is permitted to be played is seeing Mr Gerardi give the evidence.
Second, the evidence of Mr Gerardi will be able to be followed by the jury even though they will not see Mr Gerardi giving the evidence. If necessary the audio recording can be paused at those points in his evidence at which Mr Gerardi was shown a photograph or other item so that the photograph or item can be displayed to the jury. This will further ensure that they are able to follow the evidence.
Third, at the first trial Mr Gerardi was cross‑examined in detail and at length. Therefore, this is not a case in which the jury will, if the audio recording is permitted to be played, be deprived of the benefit of assessing Mr Gerardi's credibility in light of his evidence having been fully and adequately tested.
Fourth, Mr Gerardi's evidence is central to the issues in dispute in the case. This is a factor that favours the admission of the audio recording.
Fifth, the audio recording of Mr Gerardi's evidence, if admitted, will not be the only evidence of what happened inside the house during the relevant incident. Evidence of the incident will also be given by Ms Morrison and Mr McArthur. Therefore, the jury will be able to assess the credibility of Mr Gerardi's evidence in light of the evidence of these other witnesses.
Sixth, any prejudice to the accused that may flow from the jury not having the benefit of actually seeing Mr Gerardi give his evidence will, in my view, be able to be more than adequately addressed by me giving the jury directions to the effect that the fact that they did not see Mr Gerardi give his evidence is something that they must take into account in assessing the credibility of his evidence.
All of the above factors point in favour of me exercising my discretion to admit the audio recording of Mr Gerardi's evidence.
Despite the factors pointing in favour of the admission of the audio recording the accused submits that it will be unfair to her to admit the audio recording of Mr Gerardi's evidence. The accused does not submit that it can be concluded on the basis of Professor Flicker's evidence that Mr Gerardi was suffering from any cognitive or memory deficits when he gave his evidence in September 2019. This is unsurprising given Professor Flicker's evidence that he has no idea of the exact level of cognitive impairment that Mr Gerardi may have been manifesting before September of this year, and that he cannot be certain about Mr Gerardi's degree of cognitive impairment at any time prior to September of this year. What the accused does submit, however, is that because the accused, through no fault of her own, did not at the time of the first trial know about the results of Mr Gerardi's June 2019 brain scan, this information only having come to light as a result of the State's application to admit the audio recording of Mr Gerardi's evidence, there were viable lines of cross-examination of Mr Gerardi that were not pursued at the first trial and are now, given Mr Gerardi's condition, unable to be pursued. The lines of cross‑examination of Mr Gerardi that were not pursued that have been identified by the accused are as follows:
1.Questioning as to Mr Gerardi's memory and whether it has been getting worse over time;
2.Questioning as to Mr Gerardi's 'level of intoxication in relation to his memory'; and
3.Questioning as to whether Mr Gerardi has experienced explosions of anger associated with his worsening memory.
The accused submits that given that the above identified lines of cross‑examination of Mr Gerardi were not pursued at the first trial, it would be unfair to her to permit the audio recording of Mr Gerardi's evidence to be admitted at her retrial.
Before dealing with each of the identified lines of cross‑examination it is, I think, worth making some brief reference to the manner in which Mr Gerardi gave evidence at the first trial.
There was nothing about the way in which Mr Gerardi gave his evidence at the first trial which would justify the conclusion that he was at that time incapable of giving reliable evidence. During the giving of his evidence at the first trial Mr Gerardi was apparently orientated to time and place. He certainly did not demonstrate any obvious signs of confusion about why he was at court or what he was being asked about. His answers in both examination‑in‑chief and cross‑examination demonstrated that he was not having any difficulty understanding the questions that were being asked of him. He appeared to have a relatively clear memory of the incident the subject of the charge, his evidence as to the incident being broadly consistent with, although not precisely the same as, the evidence as to the incident given by Mr McArthur and Ms Morrison. Further, to the extent that the questioning of him revealed deficiencies in his memory as to precise sequences of events or details, the deficiencies were not such as to give rise to any suggestion that he was incapable of giving reliable evidence as to the incident the subject of the charge. Indeed, any apparent deficiencies in his recollection were, bearing in mind that he was giving evidence of a traumatic incident that occurred in April 2017, no more striking than would ordinarily be expected.
Against this background I return to the lines of cross-examination which the accused asserts she was unable to pursue at the first trial.
With respect to a line of cross‑examination relating to Mr Gerardi's level of intoxication and its impact on his memory, Mr Gerardi was cross‑examined in relation to the amount of alcohol he had consumed on the night before the incident.[5] The cross‑examination revealed that Mr Gerardi had, with three others, consumed a cask of Golden Oak wine during the night before the incident. The cross‑examination was clearly directed at demonstrating to the jury that Mr Gerardi's consumption of alcohol may have impacted upon his ability to recall the events the subject of the charges. In other words there was questioning as to Mr Gerardi's 'level of intoxication in relation to his memory'.
[5] ts 285 ‑ 286, 17 September 2019.
To the extent that the accused's submission is intended to convey that Mr Gerardi could have been questioned about the impact of his long term use of alcohol on his cognitive functioning and memory, this is not an issue that Mr Gerardi could usefully or properly have been questioned on. Mr Gerardi would not have been in a position to say whether his long term use of alcohol had impacted adversely on his cognitive functioning and memory. Such an issue would, it seems to me, to be a matter for expert evidence.
As to the line of cross‑examination relating to whether Mr Gerardi's memory had been getting worse over time, it is difficult to see how such a line of questioning could have advantaged Ms Pope's case. Even if Mr Gerardi had been questioned on this topic and had conceded that his memory had been getting worse over the years, the jury would still have been left with his relatively clear account of the incident the subject of the charges which was broadly consistent with the evidence given by Ms Morrison and Mr McArthur. It is difficult to see how in these circumstances any questioning about his worsening memory would have given rise to doubts about the accuracy of his recollection of the actual incident the subject of the charge and hence materially advantaged Ms Pope's case.
Finally, with respect to the identified line of cross‑examination relating to whether Mr Gerardi has experienced explosions of anger associated with his worsening memory, even if Mr Gerardi had been questioned along these lines, and even if he had conceded that he had in recent times experienced explosions of anger, whether or not associated with his worsening memory, it is in my view unrealistic to suggest that by reason of such evidence the jury might have been left with a reasonable doubt as to whether it was Mr Gerardi who had, in a moment of anger, stabbed the deceased. This is particularly so given that there was absolutely no evidence of any disagreement or altercation between Mr Gerardi and the deceased, and given also that the proposition that was actually put to Mr Gerardi at the end of cross‑examination was that he and Ms Morrison had had a fight, that the deceased had got between them, and that one of them had stabbed him,[6] the implication being that the stabbing of the deceased by Mr Gerardi or Ms Morrison had been inadvertent. It was not suggested to Mr Gerardi that he had stabbed the deceased in the context of being angry at the deceased.
[6] ts 309, 17 September 2019.
For the reasons I have given, in my view the asserted unfairness in admitting the audio recording of Mr Gerardi's evidence, which is said to arise from the fact that the identified lines of cross‑examination of Mr Gerardi were not able to be pursued at the time of the first trial, is more perceived than real. I am not persuaded that the inability of the accused to conduct the identified lines of cross‑examination of Mr Gerardi renders it unfair to her to admit the evidence of the audio recording of the evidence that Mr Gerardi gave at the first trial.
Further and in any event, if during the course of the trial the evidence adduced reveals that there was a line of cross‑examination of Mr Gerardi that the accused was, through no fault of her own, unable to pursue at the first trial and which, if pursued, would have materially advantaged her case, I am satisfied that I will be able to deal with any unfairness arising therefrom by giving an appropriate direction to the jury.
For the reasons I have given, I am satisfied that I should exercise my discretion to admit into evidence the audio recording of Mr Gerardi's evidence. I am satisfied that it will not be unfair to the accused to do so.
I allow the State's application and order that the audio recording of the evidence given by Mr Gerardi at the first trial is admissible as evidence at the accused's retrial.

The accused's application to exclude bloodstain pattern analysis evidence and DNA analysis evidence

I turn now to the accused's applications to exclude certain categories of evidence.
Prior to the first trial, and by an application dated 28 August 2019 (the first application), the accused applied pursuant to s 98(2)(a) of the CPA for orders that were in substance as follows:
1.The evidence of Ms Julie Murakami, forensic scientist, relating to the location of the deceased's DNA in two stains on the accused's jumper, stain A and stain B, is inadmissible; and
2.The bloodstain pattern analysis evidence of Ms Michelle Hayes, forensic investigation officer, relating to stain A and stain B, is inadmissible.
The orders were sought on the ground that each of the categories of evidence was irrelevant. In the alternative, it was contended that if either category of evidence was relevant, it should be excluded by the court in the exercise of its discretion on the basis that the probative value of the evidence was outweighed by its prejudicial effect.
I dismissed the first application. I obviously did so on the basis of the evidence that was expected to be given by Ms Murakami and Ms Hayes at the first trial. I produced written reasons for my ruling.[7]
[7] The State of Western Australia v Pope[No 2] [2019] WASC 345.
The accused now, in light of the evidence that was actually given at the first trial by Ms Murakami and Ms Hayes, again applies for the orders that were sought by the first application.
In dealing with the current application I do not propose to repeat everything I said in my reasons for dismissing the first application. It is not necessary for me to do so. However, these reasons should be read in light of my reasons for dismissing the first application and as incorporating, to the extent that is relevant, what I said in my reasons for dismissing the first application.

Objection to the DNA analysis evidence

It is convenient to deal first with the objection to the DNA analysis evidence that the State proposes to adduce from Ms Murakami. I do so on the understanding that the evidence to be given by Ms Murakami, if I permit the evidence to be adduced, will be the same as the evidence that she gave at the first trial.
Ms Murakami's proposed DNA analysis evidence relates to the two stains, stain A and stain B, that were found on the jumper that the accused was wearing at the time of her arrest shortly after the occurrence of the incident the subject of the charges.
Before turning to the specifics of the DNA analysis evidence, it is necessary, for reasons that will become apparent, to refer to the evidence that was actually given by Ms Murakami and Ms Hayes (and to a more limited extent by other witnesses also) as to the composition of stain A and stain B. The evidence was as follows:[8]
[8] My statement of the evidence reflects the summary of the evidence that I provided to the jury during the course of my directions to them at the first trial: ts 862 ‑ 864, 25 September 2019. At the time of the first trial neither party suggested that my statement of the evidence was inaccurate or incomplete.
1.Stain A and stain B were red‑brown in colour so they are consistent with having come from blood or a blood like substance;
2.A hemastix test was conducted on stain A on the jumper by the police (Sergeant McCance and Senior Constable Popiel). A hemastix test is a presumptive test for blood from any animal, not just human blood. As a presumptive test it tells you that the substance may be blood;
3.The hemastix test on stain A gave a positive presumptive result for blood;
4.The hemastix test detects peroxidase-like activity of haemoglobin in the blood. There are other sources of peroxidases including plant and vegetables. Therefore the hemastix test can give a false positive for blood;
5.The PathWest laboratory subjected both stain A and stain B on the jumper to the Kastle‑Meyer test which is a presumptive chemical test for blood. The chemical test relies on the presence of haemoglobin in the blood to cause a colour-change reaction in the chemicals used. The presumptive test gives an indication that the substance may be blood;
6.Both stain A and stain B gave a positive reaction to the presumptive chemical test for blood;
7.There are other substances that can react with a chemical that is used in the Kastle‑Meyer test and which may therefore give a positive reaction. Therefore it cannot be said definitively on the basis of the Kastle‑Meyer test that blood was present in stain A and stain B;
8.The substances other than haemoglobin that can react with the chemical used in the Kastle‑Meyer test include some chemical oxidants that might be found in cleaning agents, some plant peroxidases, some vegetable matter and some iron containing compounds;
9.Given that there are substances other than haemoglobin that can react with the chemical used in the Kastle‑Meyer test a false positive reaction for blood can be obtained on the use of the test. However, in the case of a false positive result the reaction after the chemicals are added is usually delayed so the colour change is a little slower and the colour is a little different. However, this is not always the case and sometimes exactly the same reaction as to what would be seen in a standard blood sample will occur;
10.There is no record in Ms Murakami's notes that the positive reaction on the use of the Kastle‑Meyer test on stain A and stain B was delayed;
11.Stain A and stain B were not subjected to hematrace testing to confirm the presence of human blood. Such a test will cross-react with higher primates and ferrets; and
12.Stain A and stain B were not subjected to hematrace testing because the stains were small. In order to run the hematrace testing some of the stain would need to have been consumed so sometimes there is a 'payout' between recovering a DNA profile and getting a reaction with the confirmatory test for blood;
13.Even if hematrace testing had been performed on stain A and stain B and had confirmed the presence of blood, it would still not have been possible to link the particular cellular source to the DNA profile obtained from the stains. That is, it would still not have been possible to say that the DNA profile came from blood as opposed to some other source, for example, skin cells or saliva.
So that is a statement of the evidence adduced at the first trial as to the composition of stain A and stain B.
Returning then to the DNA analysis evidence given by Ms Murakami.
The essence of the DNA analysis evidence given by Ms Murakami was that DNA profiles located in samples taken from stain A and stain B matched the deceased's DNA profile, but that it was not possible to identify the cellular source of the DNA profile. That is, it was not possible to say that the DNA profile came from blood as opposed to other cellular sources, for example, skin cells or saliva.[9]
[9] ts 637 ‑ 642, 659, 23 September 2019.
It is in light of Ms Murakami's inability to identify the source of the DNA profiles obtained from stain A and stain B as being the deceased's blood that the accused submits, as she did in support of the first application, that Ms Murakami's DNA analysis evidence is irrelevant and inadmissible. The accused submits that given that the evidence is incapable of establishing that the stains were comprised of the deceased's blood, and hence that the DNA profile came from the deceased's blood rather than some other source such as saliva or skin cells, the evidence of the finding of the deceased's DNA on the jumper is incapable of proving or going to prove that the accused was in the presence of the deceased at the time the deceased was stabbed. This is particularly so, it is submitted, given that the accused had spent the night at the unit with the consequence that the location of the deceased's DNA on the jumper may be the result of the secondary transfer from surfaces inside the unit which the deceased had come into contact with. Therefore, it is submitted, the evidence is irrelevant to the fact in issue, namely whether it was the accused who stabbed the deceased.
The State's submission is that the fact that the deceased's DNA was found on the accused's jumper, assuming the jury make this finding of fact is, even though it cannot be established that the source of the DNA is the deceased's blood, a fact or circumstance which, taken in conjunction with all the other evidence to be adduced, goes to prove that the accused was at the unit at the time that the deceased was stabbed. Accordingly, it is submitted, the evidence is relevant to a fact in issue, namely whether it was the accused who stabbed the deceased.
I do not accept the accused's submissions. I do not do so for essentially the reasons that I gave at [53] to [54] of my reasons for dismissing the first application. The accused's defence will be that she was not the person who stabbed the deceased and that she was not at the unit at the time of the stabbing. Therefore, any evidence which, whether considered alone or in conjunction with other evidence, is capable of linking the accused to the deceased is evidence that could rationally affect, directly or indirectly, the assessment of the probability of the fact in issue, namely whether it was the accused who stabbed the deceased.
The fact that there may be explanations for the location of the deceased's DNA on the accused's jumper consistent with her innocence arising from her presence at the unit during a period of time prior to the time at which the deceased was stabbed (for example, secondary transfer of the deceased's DNA from furniture within the unit) does not render the DNA evidence irrelevant. The likelihood of the deceased's DNA ending up on the deceased's jumper by means other than the accused being in close contact with the deceased in the course of stabbing him, is a matter that will be able to be taken into account by the jury in assessing the weight to be placed on the fact of the location of the deceased's DNA on the jumper in determining if the accused was the person who stabbed the deceased.

I therefore rule that the DNA analysis evidence of Ms Murakami is admissible. I dismiss the application to exclude the evidence.

Objection to the bloodstain pattern analysis evidence

I turn to the bloodstain pattern analysis evidence.
As I have already mentioned, at the first trial the bloodstain pattern analysis evidence was given by Ms Hayes. However, I am informed by the prosecutor that Ms Hayes no longer works in the field of bloodstain pattern analysis and is no long qualified as a bloodstain pattern analyst, and that the evidence that was given by Ms Hayes is now proposed to be given by Officer Brett McCance. Officer McCance was the officer who peer reviewed the report that was prepared by Ms Hayes for the purposes of the first trial. Officer McCance is qualified as a bloodstain pattern analyst.
The bloodstain pattern analysis evidence given by Ms Hayes at the first trial related to stain A and stain B. The evidence she gave at the first trial, which I understand is the evidence that the State seeks to adduce at the retrial through Officer McCance, was as follows:[10]
[10] My statement of the evidence reflects the summary of the evidence that I provided to the jury during the course of my directions to them at the first trial: ts 866 ‑ 867, 25 September 2019. At the time of the first trial neither party suggested that my statement of the evidence was inaccurate or incomplete.
1.There are four broad bloodstain pattern categories; bloodstains formed due to gravity, bloodstains arising from contact between a blood bearing surface and another surface, bloodstains that have been exposed to an additional force (that is, spatter stains) and bloodstains that do not fit into any of these categories and are grouped as 'other';
2.The only two bloodstain pattern categories that are relevant to the present case are contact and spatter;
3.The mechanism behind 'contact' bloodstains is described as when a wet bloody surface contacts a second surface as a result of compression or lateral movement;
4.A sub‑category of a contact bloodstain is transfer which is a bloodstain resulting from contact between a blood bearing surface and another surface without lateral movement. A transfer bloodstain may contain a recognisable or comparable pattern type;
5.All spatter bloodstains are the result of a blood drop being dispersed through the air due to an external force applied to a source of liquid blood;
6.Regardless of the type of external force, all spatter bloodstains are the result of blood droplets in flight depositing on a surface;
7.Although the definitions of transfer bloodstains and spatter bloodstains are clear, the differentiation between them on fabric can be less clear and is challenging. Stains on fabric surfaces are more challenging to interpret. Accordingly, the analyst needs to exercise caution;
8.Based on her training, knowledge, experience and physical characteristics of the stains (specifically size, shape, the overall consistent colour, the absence of surface coating of nearby fibres, the penetration of the weave of the fabric, the staining of both left and right loop legs and the absence of the appearance of lateral movement) it is her opinion that the stains are spatter bloodstains, although it is within the realms of possibility that stain A and stain B could be transfer bloodstains;
9.If the stains are spatter bloodstains, it is her opinion that the jumper was in close proximity to a source of liquid blood as the liquid blood travelled through the air in the form of droplets as a result of external force being applied to the liquid blood source; and
10.Due to the inability to age blood and the biological analysis of stain A and stain B resulting in a mixed DNA profile, from a bloodstain pattern analysis perspective the stains cannot be correlated to the scene of the stabbing incident nor the injuries sustained by Mr Wicker nor his subsequent death. She cannot identify the source of, or contributor to, the bloodstain.
As is patently obvious from what I have just said, Ms Hayes' evidence was premised, and Officer McCance's evidence will be premised, on stain A and stain B being bloodstains. Indeed, at trial, and with the agreement of the prosecutor, I directed the jury that if they were not satisfied beyond reasonable doubt, on the basis of the evidence given by Ms Murakami and Ms Hayes as to the composition of stain A and stain B, that either or both of the stains were blood stains, then the bloodstain pattern analysis evidence given by Ms Hayes would be irrelevant and would need to be put to one side and disregarded by them (ts 864 and 866). This is a point that I will return to shortly.
The accused submits that the evidence to be given by Ms Murakami and now Officer McCance as to the composition of stain A and stain B, is incapable of proving that the stains contained the deceased's blood. Therefore, it is submitted, there is no evidentiary foundation for the bloodstain pattern analysis evidence.
In the alternative, the accused submits that even if it is only necessary to prove that stain A or stain B contained human blood, as opposed to the deceased's blood, in order to establish the evidentiary foundation for the bloodstain pattern analysis evidence, the evidence to be given by Ms Murakami and Officer McCance is not capable of proving that the stains did contain human blood.
Finally, and again in the alternative, the accused submits that even if it is only necessary to prove that stain A and stain B contained blood, as opposed to human blood, in order to establish the evidentiary foundation for the bloodstain pattern analysis evidence, the evidence to be given by Ms Murakami and Officer McCance is not capable of proving that the stains did contain blood; that is, is not capable of proving that the stains were bloodstains.
The State necessarily accepts that it must prove that stain A and stain B contained blood in order to establish the evidentiary foundation for, and hence relevance of, the bloodstain pattern analysis evidence. The State submits that the evidence to be given by Ms Murakami and Officer McCance as to the composition of the stains is capable of proving this fact. The State does not, however, accept that it must prove that stain A and stain B contained the deceased's blood or human blood in order to establish the evidentiary foundation for, and hence relevance of, the bloodstain pattern analysis evidence.
The State's argument as to the relevance of the bloodstain pattern analysis evidence is in essence as follows.
The evidence to be adduced from Officer McCance is, if accepted, capable of proving that the two stains, stain A and stain B, are spatter bloodstains and that consequently the jumper was in close proximity to a source of liquid blood as the liquid blood travelled through the air in the form of droplets as a result of an external force being applied to the source of the liquid blood. If the jury makes this finding of fact, the finding will be something that they will be able, along with all the other facts that they find to have been established by the evidence, to take into account in deciding if they are satisfied beyond reasonable doubt that the accused was, contrary to her evidence, the person who stabbed the deceased. That is, the State's position is that the fact that there were spatter bloodstains on the jumper and that the jumper had been in close proximity to a source of liquid blood as the liquid blood travelled through the air in the form of droplets, if the jury makes this finding, will be a fact or circumstance that the jury can take into account along with all of the other facts that they find to have been established by the evidence, in deciding if the State has proved beyond reasonable doubt the allegation that it was the accused who stabbed the deceased. On the State's argument, the fact that the evidence to be adduced at trial will be incapable of proving that the blood is the deceased's blood or human blood does not deprive the evidence of its relevance. It is the fact of there being blood on the jumper, which could be human blood and which originated from a source that was in close proximity to the jumper, that is the relevant fact or circumstance.
The State's argument is premised on the jury finding that the stabbing of the deceased was a bloodletting event. It is not suggested by the accused that this is not a finding that the jury will be able to make on the evidence to be adduced.
Consistently with the conclusion I expressed at [57] of my reasons for dismissing the first application, I accept the State's submissions. In my opinion, it is not necessary for the State to prove that stain A and stain B contained the deceased's blood or human blood in order for the bloodstain pattern analysis evidence to be relevant. In my view, if the jury find that the stabbing of the deceased constituted an application of external force to a source of liquid blood (that is, was a bloodletting event), that there were spatter bloodstains on the jumper, and that such stains were the result of the jumper being in close proximity to a source of liquid blood to which an external force had been applied, these findings could, along with all other findings made by the jury, rationally affect, directly or indirectly, the jury's assessment of the probability of the fact in issue, specifically whether it was the accused who stabbed the deceased. In my view these findings could rationally affect the jury's assessment of the probability of this disputed fact even though the evidence is incapable of proving that the stains contained the deceased's blood or human blood.
Of course, the position would be different if the evidence conclusively proved that the stains did not contain human blood. In those circumstances the bloodstain pattern analysis evidence would be obviously irrelevant. However, that is not the effect of the evidence to be adduced in this case.
The question which in my view remains, however, is whether the evidence to be given by Ms Murakami and Officer McCance is capable of proving that stain A and stain B did contain blood, that is, were bloodstains.
As I have already indicated, at the first trial I directed the jury, with the agreement of the prosecutor, that before they could place any reliance on the bloodstain pattern analysis evidence they needed to be satisfied beyond reasonable doubt that either stain A or stain B or both contained blood, that is, were bloodstains.
As is apparent from the evidence given by Ms Murakami and Ms Hayes at the first trial as to the composition of stain A and stain B to which I have already referred, neither the hemastix test nor the Kastle‑Meyer test undertaken on the stains definitively established that blood was present in stain A or stain B. Only hematrace testing, which was not undertaken, could have definitively confirmed the presence of blood in either stain. In these circumstances, it is my opinion that the evidence that was given at the first trial in relation to the composition of stain A and stain B, which is the evidence that the State expects to be given at the retrial, is simply not capable of proving beyond reasonable doubt that either stain A or stain B contained blood. It necessarily follows, that if the position is that the State must prove beyond reasonable doubt that stain A or stain B contained blood in order to establish the evidentiary foundation for, and hence relevance of, the bloodstain pattern analysis evidence then, given that the evidence is not capable of establishing this fact beyond reasonable doubt, the evidence of the bloodstain pattern analysis evidence is irrelevant and inadmissible.
On the hearing of the present application the State resiled from the position it took at trial. The State submitted that it does not have to prove beyond reasonable doubt that stain A or stain B contained blood in order to establish the evidentiary foundation for the bloodstain pattern analysis evidence, and that its obligation is limited to satisfying the jury of this fact.
For her part the accused, while maintaining that the State had to prove that stain A or stain B contained the deceased's blood, or in the alternative human blood, did not attempt to contend that the State had to prove either of these facts beyond reasonable doubt. The accused accepted that the relevant standard of proof was on the balance of probabilities.
On reflection, it is my view that the direction that I gave to the jury that before they could rely on the bloodstain pattern analysis they had to be satisfied beyond reasonable doubt on the basis of the evidence given by Ms Murakami and Ms Hayes as to the composition of stain A and stain B, that either or both of the stains were blood stains, was unduly favourable to the accused. I say this for these reasons.
The bloodstain pattern analysis evidence is not an indispensable component of the State's case against the accused. If the jury reject the bloodstain pattern analysis evidence it will still be open to them to find, on the basis of other evidence to be adduced by the State, that the accused committed the charged offences. Given that the bloodstain pattern analysis evidence is not an indispensable component of the State's case against the accused, it necessarily follows that the jury will not have to be satisfied beyond reasonable doubt of the reliability of the evidence in order to act on it; that is, they will not have to be satisfied beyond reasonable doubt of the reliability of the evidence in order to make a finding, based on the evidence, that the jumper being worn by the accused was in close proximity to a liquid blood source that had had an external force applied to it.[11]
[11] Thong v The State of Western Australia [2020] WASCA 182 [124] ‑ [143].
In my opinion, if the jury does not have to be satisfied beyond reasonable doubt of the reliability of the bloodstain pattern analysis evidence in order to act on it, it follows that it is also not necessary for them to be satisfied beyond reasonable doubt that stain A or stain B was a bloodstain. Rather, the jury will only need to be satisfied, to no particular standard, that stain A or stain B was a bloodstain in order to act on the bloodstain pattern analysis evidence. They will need to make a finding of fact that stain A or stain B was a bloodstain before acting on the bloodstain pattern analysis evidence. However, they will not need to be satisfied beyond reasonable doubt that the stain was a bloodstain before making a finding to this effect. Accordingly, I am not persuaded that the evidence of the bloodstain pattern analysis evidence is inadmissible on the basis that the evidence to be adduced at trial is not capable of proving beyond reasonable doubt that stain A or stain B is a blood stain.
In my opinion the evidence to be given by Ms Murakami and Officer McCance as to the composition of stain A and stain B to which I have already referred is, when viewed as a whole, capable of satisfying a jury that blood was present in stain A and stain B. It follows that in my opinion the essential factual foundation for the admissibility of the bloodstain pattern analysis sought to be adduced from Officer McCance can be established. Of course, whether the jury makes a finding that stain A and stain B contained blood will be a matter for them. I will direct the jury that they must find that stain A or stain B is a bloodstain before they can place any reliance on the bloodstain pattern analysis evidence. I will also direct the jury, as I did at the first trial, that the bloodstain pattern analysis evidence, if accepted by them, is not of itself sufficient to prove that it was the accused who stabbed the deceased.
For the reasons I have given, in my view the evidence of the bloodstain pattern analysis is relevant.
At the hearing of the application the accused contended, as she did on the first application, that even if the bloodstain pattern analysis evidence is relevant it should be excluded on the basis that its prejudicial effect exceeds its probative value.[12] The essence of the accused's submission in this regard, as I understand it, is that there is a real risk that the jury will give the evidence much greater weight than should be accorded to it.
[12] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51]; Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [190].
For the reasons stated in [60] of my reasons for dismissing the first application I do not accept the accused's submission that the bloodstain pattern analysis evidence should be excluded on the basis that its prejudicial effect exceeds its probative value.
For the reasons I have stated my ruling is that the bloodstain pattern analysis evidence is admissible. I dismiss the application to exclude the evidence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
1 DECEMBER 2020