The State of Western Australia v Wark [No 2]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WARK [No 2] [2018] WASC 18

CORAM: JENKINS J

HEARD: 9 OCTOBER - 24 NOVEMBER 2017

DELIVERED : 22 JANUARY 2018

FILE NO/S: INS 370 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
FRANCIS JOHN WARK
Accused

Catchwords:

Criminal law - Trial by judge alone - Wilful murder and the alternative verdicts - Victim disappeared and never found - Circumstantial prosecution case - Alibi - Propensity evidence - Delay in prosecution

Legislation:

Criminal Code (WA), s 1, s 270, s 277, s 278, s 279
Criminal Procedure Act 2004 (WA), s 118, s 120(2)
Evidence Act 1906 (WA), s 32, s 31A, s 106R

Result:

Not guilty of wilful murder
Guilty of murder

Category: B

Representation:

Counsel:

Prosecution : Ms A J Burrows & Mr B F Tooker
Accused: Mr D N Ryan

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Chelmsford Legal

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

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Craig v The King [1933] HCA 41; (1933) 49 CLR 429
Davies v The King [1937] HCA 27; (1937) 57 CLR 170
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
MJS v The State of Western Australia [2011] WASCA 112
Noto v The State of Western Australia [2006] WASCA 278
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Conaghan [2017] EWCA Crim 597; (2007) WLR (D) 716
R v Reed, Reed and Garmson (2009) EWCA Crim 2698; [2010] 1 Cr App 23
Stewart v The King [1921] HCA 17; (1921) 29 CLR 234

Table of Contents

Introduction
The State's witnesses
Special witness direction
The defence witnesses
Witness credibility
The view
General legal principles

Burden and standard of proof
Charges open on the indictment
Judge of the facts
The evidence and witnesses generally
Accused's out of court statements

Alibi
Expert evidence
Admissions made under the Evidence Act s 32
Drawing inferences
Accused did not give evidence
Lies told by the accused
Post 29 July 1999 conduct by the accused
Propensity evidence
Modified Longman warning
The view
Identification warning

Motive

Elements of wilful murder
Elements of murder
Elements of the offence of manslaughter
Factual issues

Facts

The accused

Badgingarra
Mr McConnell's ute
Ms Dodd's background
Ms Dodd's purchase of the ankh earrings
Ms Dodd's movements on 29 July 1999
Witnesses who claim to have seen a girl on North West Road on 29 July 1999
Witnesses who claim not to have seen a girl on North West Road on 29 July 1999
Evidence of Mr Jamie Smith
Evidence of Mr Wayne Molloy
Alleged sightings of Ms Dodd at places other than North West Road
Searches for evidence of Ms Dodd's post 29 July 1999 conduct
Searches for Ms Dodd or items connected to her
Conclusions about Ms Dodd's movements
The accused's movements on and around 29 July 1999
Supa Valu
DJs Quality Meats, Moora
Pioneer Bakery, Moora
The indicator lever of Mr McConnell's ute
Conclusions about the accused's movements on 29 July 1999
The commencement of the police enquiry
Examination of Mr McConnell's ute August 1999
Recording and storage of exhibits seized from Mr McConnell's ute August 1999
Seat cover and vacuumings 1999 ‑ 2006
IMS incident report created for Operation Bluegum October 2010
Seat cover and vacuumings 2006 ‑ 2011
Seat cover and vacuumings 2012
Seat cover and vacuumings 2013
Seat cover and vacuumings May 2013
Operation Bluegum 2007 ‑ 2013
Seat cover and vacuumings August 2013
Examination of the seat cover 5 September 2013
Forensic examination of vacuumings and other items
Dr Dadna Hartman - VIFM
Dr Michael Wallbank - Cellmark
Mr Andrew McDonald - Cellmark
Professor Allan Jamieson - The Forensic Institute
Conclusions about hair 13
Propensity evidence of Ms M
Conclusions about the propensity evidence
Conclusions about the earring
Other possible suspects

Conclusion as to whether the accused killed Ms Dodd
Conclusion as to whether the accused intended to kill Ms Dodd
Conclusion as to whether the accused intended to cause Ms Dodd grievous bodily harm or whether he killed her in the other circumstance which constitutes murder

Verdict
Attachment 1
Attachment 2
Attachment 3

JENKINS J:

Introduction

Hayley Marie Dodd[1] was 17 years old on 29 July 1999 when she set out alone to hitchhike from Dongara to a farm on North West Road, 24 km from Badgingarra. Since that day Ms Dodd has not contacted her family and friends. For the reasons which follow in this judgment, I find that she died on the same day.
[1] Ms Dodd's name on her birth certificate was Hayley Marie Stephenson but she was usually known by her father's last name of Dodd; ts 164, 168.
The accused[2] is charged on indictment that on 29 July 1999 he wilfully murdered Ms Dodd. The accused applied for a trial by judge alone and on 7 June 2017 Pritchard J ordered that he be tried by judge alone.[3]
[2] This is the usual way a person charged with a criminal offence is referred to in Western Australia during a criminal trial. It does not imply that he is guilty of the offence with which he is charged.
[3] Criminal Procedure Act 2004 (WA) (CPA) s 118.
The accused's trial took place before me on 9 October ‑ 24 November 2017. At the commencement of the trial the accused entered a not guilty plea.
A fundamental difference between a trial by jury and a trial by judge alone is that a jury's deliberations are secret and it does not reveal the reasons which have led to its verdict. By contrast, the judgment in a trial by judge alone must include the principles of law that the judge has applied and the findings of fact on which the judge has relied.[4]
[4] CPA s 120(2).
These are the principles of law that I have applied and the findings of fact on which I have relied for finding that the accused is not guilty of wilful murder, but guilty of murder.

The State's witnesses

With the consent of the accused, the State read into evidence the statements of the following witnesses:
(1)John Norman Ashworth (P);[5]
[5] (P) denotes police officer.
(2)Margaret Elizabeth Dodd;
(3)Shantell Francis Boothey;
(4)Toni Anne Stephenson;
(5)Byron James Dodd;
(6)Raeanne Ethel Dodd;
(7)Jamie Anthony Hutchinson;
(8)Linley Grace Bell;
(9)Margaret King;
(10)Eva Gerrard;
(11)Michael John Russell;
(12)Paul Joseph Wilkins;
(13)Gina Kenny;
(14)Eileen Jane Purser;
(15)Donald Victor Cheek;
(16)Laurie Edward Giles;
(17)Kenneth William Barrett;
(18)David Neil Martin;
(19)Melinda Jayne Borwick;
(20)Clark Thomas Skinner;
(21)Lyall Edward Schwan;
(22)Peter David Russell;
(23)Shane Geoffrey Wheeler (P);
(24)Travis John Paul Dunn;
(25)Christine Gaye McCooke;
(26)Matthew David Turner (P);
(27)Bevan Richard Newham;
(28)Natalie Jane Di Pietro;
(29)Paul Johnson (P);
(30)Ryan Ernest Murphy (P); and
(31)Bradley John Davies.
The statements of Albert Hall Rowland, Stanley Keith Hammond, Leonard John Hale, Lorna Christine Andrijich, Peter Andrew Boucher and John Robert McConnell, all of whom died prior to the trial, were read in by the State as a consequence of Pritchard J's order made on 7 June 2017.
The State called the following witnesses to give oral evidence:
(1)Lisa Marie Frederickson;
(2)Tracy Lorraine Ferris (P);
(3)Adam James McCulloch (P);
(4)Zandrea Louise Morgan;
(5)Helen Louise James;
(6)Bradley Geoffrey Hammond;
(7)Olive Lynette Ward;
(8)Geoffrey Joseph Mulroy;
(9)Donald Wayne Spry;
(10)John Alexander Piper;
(11)Margaret Anne Johnson;
(12)Fiona Ellen Weaver;
(13)Mark Christopher Weaver;
(14)David Michael Skipworth;
(15)Carl Adrian Moltoni;
(16)Geoffrey Michael Wyatt;
(17)Nigel Joseph Johannes Streppel;
(18)Timothy Jankowski;
(19)Stephen Edward Koeberle;
(20)David Leslie Stribley;
(21)Norman Robin Alexander Smith;
(22)Kim Annette Smith;
(23)Wayne Edward Molloy;
(24)Timothy Gordon Peacock;
(25)Peter David Westbrook;
(26)Sue Ann Westbrook;
(27)Robert Bruce Calder Smith;
(28)Graham Michael Burnett;
(29)Terrence Michael Jones;
(30)Christopher John Cubbage (P);
(31)Catherine Mary Edwards;
(32)Paul Anthony Springer;
(33)Robyn Gayle Crouch;
(34)Graeme David Ellis;
(35)Bronwyn Dallas Brown;
(36)Jamie Andrew Smith;
(37)Darren John Greay;
(38)Maria Natalie Russell;
(39)Alexander Ian McCooke;
(40)Andrew James McCooke;
(41)Angela May Wilkinson;
(42)Terence John Hughan;
(43)Kahu Smiler;
(44)Ms M;
(45)Edward Jorge Thomas Rowe (P);
(46)Robert John Borbely (P);
(47)Kornelis Christianus Prins (P);
(48)Shane Leslie Graham (P);
(49)Matthew Sullivan (P);
(50)Craig Digory Keals (P);
(51)Aaron James Cleaver (P);
(52)Alexander Elliott (P);
(53)John Robert Davison (P);
(54)Stephen Marshall Coleman (P);
(55)Colynn Phillip Rowe (P);
(56)Craig Kenneth John Scott (P);
(57)Raymond Douglas Whitehead (P);
(58)Francis Robert Whitford (P);
(59)Christopher John Rainford (P);
(60)Rodney William Harris (P);
(61)Lee‑Anne Sadlier (P);
(62)Claire Lydia Mustafa (P);
(63)Gavin John Fisher (P);
(64)Carolyn Joy Jones;
(65)Tracy Louise Horner;
(66)Michael Anthony Hill (P);
(67)Geoffrey John Buck (P);
(68)Darryl Wayne Cox (P);
(69)Timothy Heinz (P);
(70)Darren John Bethell (P);
(71)Matthew James Sullivan (P);
(72)Philip Alexander Ward (P);
(73)Darren Keith Harston (P);
(74)Scott Elliott Egan;
(75)Dr Dadna Hartman;
(76)Dr Michael Wallbank;
(77)Dr Andrew John McDonald;
(78)Lysle Phillip Cubbage (P);
(79)Debbie Louise Chapman (P); and

Special witness direction

The State called a witness, Ms Maria Russell, who I declared a special witness pursuant to the Evidence Act 1906 (WA) s 106R. Her evidence was transmitted to the courtroom by means of a video link. I direct myself that is a normal procedure in court proceedings in Western Australia. No adverse inference may be drawn against the accused because Ms Russell was declared a special witness.

The defence witnesses

The accused elected not to give evidence personally. He called the following witnesses to give oral evidence:
(1)Mr Keith Leslie Skelley;
(2)Mr Larry Ronald Puls;
(3)Ms Nicola McNamara;
(4)Mr David Jose Casthaneira;
(5)Mr Christopher William Blair;
(6)Mr Jason Luke Rogers; and
(7)Professor Alan Jamieson.
The statement of Mr Sean Harley Troy, who died prior to trial, was read into evidence by my order.

Witness credibility

I find that most of the lay witnesses who gave oral evidence about events in 1999 were doing their best to honestly recall events which happened over 18 years ago. The overwhelming majority of them had good or reasonably good recollections of these events. There were very few times that witnesses were alleged to have given evidence which was inconsistent with their statement made in or around 1999.
There were only four witnesses who I conclude were not doing their best to honestly recall events or whose demeanour or recollections were so poor that I formed a poor opinion of their overall credibility. They are Bradley Hammond, Jamie Smith, Ian McCooke and Paul Springer. Where necessary, I have made comments about them when dealing with their evidence and the conclusions I draw from it.
There were some other witnesses who I conclude are in error about times and events, even though I have no doubt they were trying their best to honestly recall these matters. Where this is the case and the evidence is important, I have noted it when considering their evidence.
I find that the police witnesses, whether they were involved in the investigations in 1999 or at a later time, were honestly trying to recall events and conversations about which they gave evidence. The memories of some police witnesses are lacking or mistaken. Where this is the case and the evidence is important, I have noted it when dealing with their evidence.
The expert witnesses were qualified to give opinion evidence about the matters on which they testified. I find that they were each giving those opinions honestly and to the best of their ability. Where there is conflict between their opinions, I have expressed my reasons for preferring one opinion over that of another or for why I am unable to make findings about the conflicting opinions.

The view

During the course of the State's case, the court had a view of Badgingarra, North West Road and other roads between Badgingarra and Moora. Whilst on North West Road, the court viewed the exterior of the accused's former home on North West Road and the front exterior of the two homes on the Seldom Seen farm.

General legal principles

The principles of law which I apply are as follows.

Burden and standard of proof

The accused is presumed to be innocent of any charge open on the indictment. The State has the onus of proving his guilt of a charge. I cannot return a verdict of guilty on a charge unless the State satisfies me beyond reasonable doubt of the guilt of the accused by establishing each of the essential elements of the charge to that standard. The accused is entitled to the benefit of any reasonable doubt in my mind. The accused does not have to prove anything.
Beyond reasonable doubt is a high standard. It is the highest standard that is known to the law.

Charges open on the indictment

The parties agree that the charges open on the indictment are wilful murder, murder and manslaughter. I need only return a verdict on murder if I am not satisfied beyond reasonable doubt that the accused is guilty of wilful murder. I need only return a verdict on manslaughter if I am not satisfied beyond reasonable doubt that the accused is guilty of wilful murder or murder.

Judge of the facts

I am the sole judge of the facts in this case. Counsel have put certain views about the facts to me and urged me to come to those views. But I must not adopt anybody else's views of the facts. It is my role alone to decide what facts have been proved in this case, and then applying the law as I now set it out, to decide whether the State has proved a charge beyond reasonable doubt.

The evidence and witnesses generally

I must judge the evidence fairly and impartially. I must determine my verdict on the evidence adduced in the trial and not on any other matters. I must assess that evidence dispassionately. I must not decide the case on prejudice or sympathy. I must not guess or speculate about matters which are not in evidence or about what a certain person may have said if they had been called to give evidence. Neither should I look for theories which are not supported by the evidence.
I may accept part of a witness' evidence and reject other parts of that witness' evidence. I may find that a piece of evidence is important, even though it has not been mentioned by either counsel.
When a witness statement has been read into evidence, I have not had an opportunity to assess the witness give the evidence. Where the statement has been read into evidence by consent, there is an implication that the witness' evidence is not in dispute. The implication does not arise where a statement has been read in by order of a judge.
In relation to witnesses whose statements were read in by order of the court, I warn myself that I have not had the benefit of seeing the witness give evidence or hearing his or her evidence tested by cross‑examination. I should take these matters into account when deciding whether to rely on the witness' evidence.

Accused's out of court statements

The accused's statements to the police and electronically recorded record of interview conducted on 27 November 2013 (EROI) are part of the evidence. It is the accused's answers in the EROI which are the evidence, not the questions.
I may use the statements and EROI for or against the accused. It is up to me to decide which part of the statements and EROI I accept and which parts I reject. I may take into account that the accused's statements and EROI made out of court were not made on oath or affirmation. As a consequence I may give his exculpatory statements less weight.

Alibi

The accused told the police that he was in Moora at the time that the State says that Ms Dodd disappeared from North West Road (the alibi). By saying this, the accused does not undertake to prove that he was in Moora or to prove any other fact. The onus remains on the State to prove that the accused committed an offence. That means that it must eliminate any reasonable possibility that the alibi is true.

Expert evidence

Four of the witnesses who gave evidence are forensic scientists and are expert witnesses. They are Mr Andrew McDonald, Dr Dadna Hartman, Dr Michael Wallbank and Professor Allan Jamieson. Professor Jamieson's opinions are in conflict with the opinions of the other named scientists to some extent.
Other witnesses are expert witnesses but their evidence is not disputed by any other witness. Witnesses in this category include Mr Scott Egan, Ms Tracey Horner and Senior Constable Darren Harston.
I am not bound to accept and act upon a witness' evidence, even an expert witness' evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's opinion is unreliable. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that expert evidence, I must accept it.
It is for me to decide whose opinion I accept in whole or in part. The resolution of areas of conflict between expert witnesses may depend on the State's onus of proof. It may also depend on my decision as to whether the facts upon which an opinion is based accord with the facts as I have found them to be, whether the expert has taken into account facts which I have found were not proven and whether steps of reasoning in the formation of an opinion have been soundly taken. I may also take into account a particular expert witness' level of expertise in a particular area.

Admissions made under the Evidence Act s 32

The accused made some formal admissions under the Evidence Act 1906 (WA), s 32.[6] Section 32 provides that an accused may admit on his trial any fact alleged against him or sought to be proved against him and such admission will be sufficient proof of the fact without other evidence. However I am not bound to accept admitted facts.

Drawing inferences

[6] Exhibit 259.

The State's case is circumstantial. There is no witness who testified that they saw the accused kill Ms Dodd. I am required to look at the evidence of all the surrounding circumstances (the circumstantial evidence) to see what conclusions, or inferences, if any, can be drawn from it. I may draw an inference or inferences against the accused from the circumstantial evidence. Circumstantial evidence and the inferences which can be drawn from it may prove the commission of a criminal offence.
There may be a number of surrounding circumstances proven, none of which would individually prove a charge, but when considered together they may lead to the conclusion that the accused is guilty of a charge.
It is a matter for me to determine what facts have been proven by the circumstantial evidence that I find to be reliable and true. It is open for me to draw an inference against the accused from those proven facts if that is the only inference which is reasonably available. If there is an alternative inference open within reason then I must not draw the inference of guilt.

This direction applies to each element of a charge and to my consideration of a charge as a whole. If I think that the evidence is capable of a reasonable explanation, other than that the accused is guilty of the charge I am considering, he must be found not guilty of it. This is because he is entitled to the benefit of any reasonable doubt.
Sometimes, in a circumstantial case, there will be evidence of matters which, when looked at in isolation from other evidence, will yield an inference compatible with either the guilt of the accused or the innocence of the accused. But a circumstantial case must not be considered piecemeal. I must consider all the circumstantial evidence. In doing so, I may find that one piece of evidence resolves or increases my doubts as to another. I should not reject one circumstance because, when considered alone, no inference can be drawn from it. I must consider the weight which is to be given to the united force of all the proven circumstances.

Accused did not give evidence

The accused did not give evidence. It was his right not to do so. His silence is not to be used against him. It does not constitute an admission. The fact that he did not give evidence proves nothing.

Lies told by the accused

The State says that the accused told lies to various people about his health and the reason he was selling his home and moving to Queensland and that he lied to Mr McConnell about being in hospital when he had already been discharged. It says that these are lies going to the credibility of his statements to police about his movements on 29 July 1999.[7]
[7] ts 2700, ts 2715.
There was no objection to the admission of the evidence said to prove the accused's alleged lies.
The accused's counsel made submissions at the end of the trial as to why I should not find the evidence to be significant.
Neither counsel included a proposed direction as to lies in their written submissions on the legal directions.
When reflecting on the proper direction relating to these lies, I determined that there was no proper basis for the admission of the evidence. It was evidence of collateral matters and its only relevance was to establish the accused's bad character and, in particular, his propensity to lie. Evidence of an accused's bad character is inadmissible at common law unless the accused has put his character into issue, has attacked the character of the prosecutor's witnesses or it is relevant to prove the accused's guilt.[8] Those circumstances do not apply to these alleged lies. Neither is the evidence admissible pursuant to the Evidence Act 1906 (WA) s 31A.
[8] Stewart v The King [1921] HCA 17; (1921) 29 CLR 234; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 299; MJS v The State of Western Australia [2011] WASCA 112 [144]. The rule is reflected in the Evidence Act 1906 (WA) s 8.
There are many cases where evidence of an accused's lies are so integrated with evidence relevant to proof of the accused's guilt or innocence, that they are admissible in that context. Where that occurs, the jury may be entitled to take the alleged lies into account generally in deciding whether to believe other things said by the accused. This is not such a case. As the evidence concerning these lies should not have been adduced, I will ignore it and not take it into account.
The State submits that if I should find that Ms Dodd was in Mr McConnell's ute on 29 July 1999, the accused's denial to the police in the EROI that she had ever been in the ute is a lie showing consciousness of guilt of wilful murder.[9]
[9] ts 2755.
It is for me to decide whether the accused told a lie about that matter and whether it was a deliberate lie. If I find that he lied, it is for me to decide the significance of a lie in relation to the issues.
If I find that the accused lied to the police about Ms Dodd not having been in Mr McConnell's ute, I may accept the lie as supportive of the State case, that is, evidence which directly goes to strengthen the State case. Before I do so, I must be satisfied of the following matters:
(1)The lie was deliberate.
(2)The lie relates to a material issue. A material issue is one which is relevant to the guilt or innocence of the accused. The lie must reveal that the accused had some knowledge of the alleged offence or an aspect of it. That knowledge must, in my view, be inconsistent with his innocence. A statement that Ms Dodd had not been in Mr McConnell's ute relates to a material issue.
(3)The lie must, in my opinion, spring from a realisation of guilt and fear of the truth. That is, I must be satisfied that the accused knew that unless he lied about that matter, he would be unable to provide any innocent explanation for his actions. There may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. If I accept that a reason of that kind is the explanation for the lie, I cannot regard it as an admission.
(4)The lie must clearly be proved by evidence other than the evidence which is to be supported or corroborated by the lie.[10]
[10] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 198.
A lie told out of court becomes important when there is other evidence which is sufficient to sustain a verdict of guilty. In those circumstances, if I am satisfied of the above matters, I may use the lie to strengthen that evidence.

Post 29 July 1999 conduct by the accused

The State submits that the accused's conduct since 29 July 1999 in concealing Ms Dodd's death are actions that are only demonstrable of an intention to kill her.[11]
[11] ts 2755.
In this regard, the State relies on what the High Court said in R v Baden‑Clay.[12] Their Honours said:
[12] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [72] ‑ [79].
The respondent's false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should 'lie low', and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter‑related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing.
In R v White, in the Supreme Court of Canada, Major J said:
'As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact‑finding role.'
In R v White, Major J went on to say that there may be cases where post‑offence conduct, such as the accused’s flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post‑offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: 'The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute.'
In Lane v The Queen, the Court of Criminal Appeal of the Supreme Court of New South Wales rejected the contention that a count of manslaughter of the accused's child should have been left to the jury as an alternative to murder. The Court held that the jury were entitled to take the post-offence conduct of the accused as evidencing consciousness of guilt of murder. In particular, the Court held that the lies told by the accused 'alone were sufficient to provide the evidentiary foundation for an inference that … she acted with the intention of killing.' Their Honours went on to say that the false accounts given by the accused 'provide no factual foundation for an inference that the manner in which she killed [her child]' would establish manslaughter by criminal negligence.
It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.
However, even if the evidence of post‑offence conduct were neutral on the issue of intent, that alone would provide no basis to conclude that the reasonable hypothesis relied upon by the Court of Appeal was open on the evidence led at trial. To so conclude is to adopt an impermissible 'piecemeal' approach to that evidence. All of the circumstances established by the evidence were to be considered and weighed, not just some of them.
Finally, the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about the respondent's intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm.
In all the circumstances of this case, other than speculating about how things might have happened, it was open to the jury rationally to conclude that the respondent killed his wife and did so with intent, at least, to cause her grievous bodily harm. Upon the whole of the evidence led at trial, it was open to the jury to be satisfied beyond reasonable doubt that the respondent was guilty of murder.
In order to be able to use what is sometimes described as post‑offence conduct as evidence of proof of an element of an offence, such as proof of an intention to kill, I must be satisfied that:
(1)the accused's conduct was deliberate;
(2)the behaviour relates to a material issue;
(3)the accused acted in the manner he did out of a realisation of guilt and fear of the truth. That is, he knew he had intentionally killed Ms Dodd and unless he behaved in this way he would be unable to provide an innocent explanation for his actions; and
(4)the conduct has been proved by independent evidence.

Propensity evidence

The evidence of Ms M was admitted as propensity evidence. Propensity evidence is evidence which I may use to infer that the accused, who is a person who has been responsible for other criminal acts, is likely by reason of that fact to have committed the offence charged.[13] Another way of putting it is that 'the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he … is charged'.[14] It may support an inference of guilt, in the sense that that it makes it objectively improbable 'that a person other than the accused committed the act in question, that the … act was unintended, or … occurred innocently or fortuitously'.[15]
[13] Noto v The State of Western Australia [2006] WASCA 278 [22].
[14] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235.
[15] BRS v The Queen, 299.
As the evidence of Ms M was admitted as propensity evidence, I do not give myself a propensity warning about it. However it remains the case that I cannot reason that just because of the propensity evidence, the accused is guilty of an offence open on the indictment. I cannot convict the accused of an offence open on the indictment unless the State has satisfied me beyond reasonable doubt that he unlawfully killed Ms Dodd on the basis of all the evidence, including the propensity evidence.

Modified Longman warning

In deciding whether the State has proved a charge against the accused, I must take into account that Ms Dodd disappeared over 18 years ago. Over time, memories fade and the long delay between her disappearance and the trial means that there was considerable opportunity for witnesses to be mistaken in their memories of relevant events. Sometimes the passage of time plays tricks on memories. In this case, very few witnesses were alleged to have given evidence inconsistent with their earlier written statements.
It is also a matter of common experience that the longer a witness believes something to have happened or that they saw something the more convinced they may become that it has happened or that they saw it. This can be so even if they were mistaken in their original recollection.
These issues are particularly relevant to witnesses' recollections of the times they commenced or finished their journeys on North West Road and where and when they believe they saw Ms Dodd or the accused on or after 29 July 1999.
Although the accused was interviewed by the police in 1999, he was not charged with wilful murder until after the EROI in November 2013. The longer the time between the disappearance of Ms Dodd and the accused being charged, the more difficult it may be for him to answer the allegation that he was responsible for her disappearance. For example, time may have deprived him of the opportunity of obtaining evidence to support the alibi.
If he had been charged soon after July 1999 he would have been able to get more evidence from businesses in Moora and he may have had some documents, such as till receipts, to prove when he was in Moora. It is likely that the seat cover would have been examined earlier.
As a result of delay, the accused has been placed at a real disadvantage in putting forward his case and testing the State's case. I take these matters into account in his favour when deciding whether the State has proved a charge against him. I must scrutinise the evidence with great care, and not reach a conclusion of guilt on a charge unless I am satisfied beyond reasonable doubt of his guilt, after taking the forensic disadvantage into account.

The view

The view can be used by me to assist in understanding and applying the evidence, but it is not evidence.

Identification warning

Both parties submitted that I should give myself an identification warning. However identification warnings are required when a witness or witnesses have purported to identify the accused as an offender.[16] This is not such a case. Neither is any witness' purported sighting of the accused said to be in error. I do not regard an identification warning as being applicable in this case.
[16] Davies v The King [1937] HCA 27; (1937) 57 CLR 170, 181; Craig v The King[1933] HCA 41; (1933) 49 CLR 429, 445; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [56] ‑ [57], [218].
Some witnesses have purported to identify Ms Dodd as being in various locations at various times. Other witnesses have simply described seeing a girl whose appearance is similar to that of Ms Dodd. Some purported identifications are favourable to the accused and others are not. Some of the purported identifications of Ms Dodd which are not favourable to the accused are disputed by him as to the time and location of the sighting, and some are not. The accused does not submit that any witness who purported to see a young girl on North West Road on 29 July 1999 or at other places after that did not in fact see a young girl. The accused does not submit that any such sighting was not in fact Ms Dodd. Rather, it is the State who submits that some witnesses who purported to see a young girl did not in fact see such a girl in the location and at the time they allege they saw her or that they saw a girl other than Ms Dodd.[17]
[17] For example, Mr and Mrs Smith, Mr Bradley Davies and Mr Bruce Smith.
In deciding whether a purported identification of Ms Dodd is reliable, I take into account matters such as the circumstances in which identification was made, how long the witness had the person under observation, if the witness was travelling in a vehicle, at what speed the vehicle was travelling, at what distance and in what light the purported observation was made, whether the witness' observation was impeded, the circumstances in which the purported identification was made, and whether the witness had ever seen Ms Dodd or a picture of Ms Dodd at any other time. I also take into account whether the purported identification is consistent with other evidence which I believe to be true.
I warn myself that an honest witness may be mistaken in their purported identification of a stranger who was seen by them only once and in less than ideal circumstances.

Motive

The motive by which a person is induced to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.[18]
[18] Criminal Code (WA) s 23.
However the State's propensity evidence gives rise to an inference that the accused's motive in picking up Ms Dodd was for a sexual encounter. The accused says that the propensity evidence does not give rise to such a motive because the circumstances between it and any alleged encounter with Ms Dodd were very different. In any event, he denies that the State has proved that he had any encounter with Ms Dodd.
The State does not have to prove that the accused had a motive. However if the accused had the motive, it is one matter from which I may infer that the accused picked up Ms Dodd, assaulted her and in the course of doing so, killed her.
Just because someone has a motive does not mean that they will act on it and I need to look at all the surrounding circumstances in order to determine whether the State has satisfied me beyond reasonable doubt that the accused killed Ms Dodd and if so, his intention when he did so.
There is no onus on the accused to prove anything and in this context that means there is no onus on the accused to prove that he did not have a motive or that, if he did, he did not kill Ms Dodd.

Elements of wilful murder

Before I may find the accused guilty of wilful murder, I must be satisfied that the State has proved each of the following elements of the charge to the standard of beyond reasonable doubt:
(1)that the accused killed Ms Dodd, that is, caused her death, directly or indirectly, by any means whatever;[19]
(2)that when he killed Ms Dodd he intended to cause her death;[20] and
(3)that the killing was unlawful.[21]
[19] Criminal Code s 270, s 277 and s 278 (rep).
[20] Criminal Code s 278 (rep).
[21] Criminal Code s 277.

Elements of murder

Before I may find the accused guilty of murder, I must be satisfied that the State has proved each of the following elements of the charge to the standard of beyond reasonable doubt:
(1)that the accused killed Ms Dodd, that is, caused her death, directly or indirectly, by any means whatever;[22]
(2)that when he killed Ms Dodd he intended to cause her grievous bodily harm, that is any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health;[23] and
(3)that the killing was unlawful.
[22] Criminal Code s 270, s 277 and s 278 (rep).
[23] Criminal Code s 1 and s 279 (1).
If I am satisfied of the first and third elements of murder but not satisfied of the second element, the accused, may alternatively, be guilty of murder if I am satisfied beyond reasonable doubt that Ms Dodd's death was caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.[24]
[24] Criminal Code s 279 (2).

The State's case was put on the basis that if I was satisfied beyond reasonable doubt that the accused killed Ms Dodd, then I should find him guilty of wilful murder and there was no factual basis for any other verdict. The prosecutor submitted that the accused's lie about Ms Dodd not having been in Mr McConnell's ute on 29 July 1999 and his post‑offence conduct in concealing Ms Dodd's death for over 18 years are demonstrative only of an intention to kill her.[25] After a comment from me during closing addresses and further consideration by counsel, the State changed its position and submitted that should I find that the accused killed Ms Dodd in the course of overpowering her with a view to sexually assaulting her, murder was a verdict open on the evidence.[26]
[25] ts 2750 ‑ 2751.
[26] ts 2755.
The accused's counsel acknowledged that whilst the State had run its case on the basis that the only appropriate verdict was wilful murder and whilst the accused's position was that the State had not proved that he killed Ms Dodd, if I made contrary findings, I would have to consider the alternative verdicts.[27] There was no suggestion by counsel that it was not open to me to convict the accused on one of the bases for murder, as opposed to wilful murder.
[27] ts 2758.

Elements of the offence of manslaughter

Before I may find the accused guilty of manslaughter, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1)that the accused killed Ms Dodd, that is, caused her death, directly or indirectly, by any means whatever;[28] and
(2)that the killing was unlawful.
[28] Criminal Code s 270, 277 and 278 (rep).

Factual issues

The State submits that the accused is guilty of wilful murder because he encountered Ms Dodd at about midday on 29 July 1999, picked her up, killed her and disposed of her body. It submits that I should be satisfied beyond reasonable doubt of these matters from the following circumstances:
(1)when she disappeared, Ms Dodd was wearing a pair of earrings, one of which was later found in the vehicle that the accused was driving on 29 July 1999;
(2)one of Ms Dodd’s hairs was later found in the same vehicle;
(3)the accused was alone in the vehicle when he had the opportunity to encounter Ms Dodd on North West Road;
(4)there have been no reliable sightings of Ms Dodd since the accused had the opportunity to encounter her; and
(5) the accused had a propensity to pick up a lone female hitchhiker and to rape them, and in doing so to use extreme violence.
The accused submits that he is not guilty because of the alibi that he was in Moora at the time Ms Dodd disappeared. He says that in any event, I should not conclude:
(1)that he had the opportunity to encounter Ms Dodd;
(2) that the earring and hair belonged to Ms Dodd; and
(3)that the propensity evidence is probative of his guilt.
There are no facts or circumstances raised by the evidence which would render the killing of Ms Dodd lawful. Therefore, the issues for my determination are:
(1)Whether the accused killed Ms Dodd;
(2)If so, did he intend to kill her; and
(3)If he did not intend to kill her, did he intend to cause her grievous bodily harm or did he kill her in the alternative circumstance which constitutes murder?

Facts

Many facts are not in dispute. There are also many facts which, although not agreed to by the accused, are not the subject of disputed evidence and the undisputed evidence grounding the facts was given by witnesses whose credibility is not in issue. In relation to many such facts I will not explain the reason why I have found the facts unless a fact has particular relevance to the reasoning towards my verdict.
There are other facts in issue about which there is conflicting evidence, or which can only be found by inference or which have been given by a witness whose credibility is in issue. I will explain the reasons why I have found those facts.

The accused

The accused was born on 21 February 1956 and was 43 years old in July 1999. There is no direct evidence of the accused's height and weight in July 1999. However an audio visual recording of him in August 1999[29] shows him to have been of at least an average Caucasian man's height and weight.
[29] Exhibit 261.
In July 1999, the accused owned and lived in a very basic home on lot 10 ‑ 12 North West Road, Badgingarra (the accused's home). He had been living there for about 15 years. The accused's home was on the site of the old Badgingarra township. The township was moved when the Brand Highway was realigned. The lot was much larger than a standard residential block. The house was set back from the road and there was a freestanding tin shed at the rear of the house, which was large enough to fit a car. There was scrub surrounding the house and shed. There was no obvious other homes or developments nearby. The north side of the block was bounded by North West Road. The western side of the block was bounded by McNamara Road. On the other two sides there was more scrub and sparse bush.[30]
[30] Exhibit 261.
The accused was single. He had a boarder, Mr John McConnell, who died on 10 January 2013.[31] The accused worked each Monday, Wednesday and Friday as a gardener at Badgingarra Primary School, which was on McNamara Road, a short distance from the accused's home.[32]

Badgingarra

[31] ts 861.

[32] Exhibit 149.

Badgingarra is 205 km north of Perth. The new Badgingarra township is in the area of the corner of Brand Highway and Meagher Drive. At the time of Ms Dodd's disappearance, the Badgingarra town site consisted of a roadhouse, a tavern, Badgingarra Motors, a general store and Badgingarra Rural Traders, which was a supplier of farming equipment. All of these businesses were close to one another along Meagher Drive. From its junction with Brand Highway, Meagher Drive runs in an easterly direction for a short distance and then curves to the north. It then meets North West Road at a T‑junction. North West Road also runs off Brand Highway but to the north of Meagher Drive. There was also a golf course on the northern side of North West Road and a small number of residential homes to the east of Meagher Drive.[33]
[33] ts 202; exhibit 18.
The accused's home was 7.6 km south east of the roadhouse, which is close to the corner of Meagher Drive and Brand Highway. To get to the accused's home from the roadhouse, you would travel along Meagher drive, turn right onto North West Road and travel along North West Road until you came to the junction of North West Road and McNamara Road. The accused's home was on the southeast corner of North West Road and McNamara Road.
McNamara Road and Winjardie Road almost form a cross‑intersection with North West Road, although McNamara Road meets North West Road slightly to the east of the junction of Winjardie Road and North West Road. Winjardie Road runs roughly north from North West Road, McNamara Road runs in a south westerly direction towards Brand Highway.[34]
[34] Attachment 1 is a road map of the Badgingarra/Moora area.
From the accused's home it was a further 50.7 km in a south easterly direction to Moora along North West Road.[35] North West Road is the main road which runs between Badgingarra and Moora. However before arriving in Moora, travellers must turn left off North West Road onto Dandaragan Road in order to travel into Moora. Moora is a larger town and it had a shopping area on both sides of a railway line.
[35] Exhibit 60.
North West Road is primarily bordered by farm paddocks, with low lying scrub and areas of national park. The Badgingarra National Park is west of the town site and Watheroo National Park lies to the northeast.

Mr McConnell's ute

The accused purchased a white 1973 HQ Holden Utility,[36] registration number DN735 (Mr McConnell's ute) in December 1998, from a local farmer, Mr Terry Hughan. Mr Hughan testified that when he sold the ute to the accused it had a canvas covered front bench seat[37] in place of the original bench seat which had been damaged, and that the bench seat did not have a seat cover on it. If this was the case, by 29 July 1999, the accused or Mr McConnell had replaced that front bench seat with an original bench seat because the photographs of Mr McConnell's ute taken by the police in 1999 show that the bench and backrest portions of the seat match each other and the colour of the ute's interior. Neither of the seats were canvas. Alternatively, Mr Hughan is incorrect in his recollection.
[36] Exhibit 164.
[37] ts 1163.
Mr Hughan testified that the ute was purchased second‑hand.[38] It was used as a farm ute around his farm and to transport him and his family to and from the farm and Badgingarra.[39] He said that he would not have driven it to Moora.[40] Mr Hughan had two daughters and a son. Neither daughter, it appears from the evidence, would have been in the ute after about 1986.[41] However Mr Hughan said that there would have been a lot of people and children in the ute over the years he owned it.[42] Mr Hughan did not know Ms Dodd.[43]
[38] ts 1164.
[39] ts 1165.
[40] ts 1165.
[41] ts 1161.
[42] ts 1165.
[43] ts 1164.
The accused sold the ute to Mr McConnell in June 1999, and it was formally transferred into Mr McConnell's name on 1 July 1999.[44] The accused continued to use Mr McConnell's ute to travel to Moora to hire and return videos and shop for the household.[45] It was the accused's habit to drive to Moora on a Thursday.[46]
[44] Exhibit 164.
[45] ts 863.
[46] ts 864.
As at July 1999, Mr McConnell's ute was very old. Although the accused drove it regularly to Moora, I accept that he would have driven it at about 80 km per hour.[47] In his statement to police, the accused said that the trip to Moora took him just over 30 minutes and that it would not take more than 45 minutes. At 80 km per hour the trip would take 39 minutes. I infer that he sometimes drove a bit faster or a bit slower.

Ms Dodd's background

[47] ts 876, 1061, 1067, 1309 and exhibit 150.

Ms Dodd was the daughter of Margaret and Raymond Dodd. Her parents were born in the United Kingdom. She was born on 30 November 1981 in the Lancaster, United Kingdom. At the time of her disappearance she was 17 years old.[48]
[48] ts 164.
Ms Dodd was the middle child in a family of five brothers and sisters. Her older brother, Martin, was born in 1975. Her older sister, Toni, was born in about 1979. Her younger brother, Byron, was born in 1985. Her younger sister, Raeanne, was born in 1986.[49]
[49] ts 165.
At the time of her disappearance in July 1999, Ms Dodd was of small stature. Various estimations were given of her height by those who knew her but none were above 154 cm, or 5'1". She also had a slim build. Various estimations were given of her weight but no one who knew her put it above 50 kg and most estimated it at about 40 kg. Her small size meant that an adult male of average strength would likely be able to overpower her.
In 1990 Ms Dodd moved with her parents and siblings to Australia. Shortly after arriving in Australia her parents bought a house in Mandurah.[50] Ms Dodd lived there with her parents until she moved out of home in about March 1999.[51] There is no evidence that she travelled out of Australia, or even interstate, between her arrival in Australia and when she went missing.[52]
[50] ts 166.
[51] ts 171.
[52] ts 2488; exhibit 292.
Ms Dodd left school in 1997. She was not interested in pursuing academic studies.[53] She commenced work as a shop assistant in a local deli. She stopped working in 1999 and commenced receiving a job seeker's benefit from Centrelink.[54]
[53] ts 167.
[54] ts 172.
In March 1999 Ms Dodd chose to move out of the family home and to live in an on‑site caravan with a friend, Ms Rebecca O'Donnell. She subsequently moved to the Ravenswood Caravan Park in Mandurah with another friend, Ms Lisa Frederickson, who was then 21 years old.[55] Around this time Ms Dodd drank alcohol, used drugs recreationally, partied and had her first relationships with young men. She remained close to her parents and siblings, in particular her mother and sisters.[56] She still relied on her mother and older sister, Toni, to organise her life in significant ways.[57]
[55] ts 172 ‑ 173.
[56] ts 166.
[57] ts 189.
Ms Frederickson and Ms Dodd made plans to travel in regional Western Australia. Ms Dodd was excited about the plan and she told her family about it.[58] Ms Frederickson had an opportunity to obtain work for them as roustabouts on a shearing team in the Dongara area. Ms Frederickson had experience in this sort of work. Ms Dodd did not.[59]
[58] ts 174.
[59] ts 192.
Ms Dodd told Ms Frederickson that she would also like to visit the Hammond family on a farm called Seldom Seen farm.[60] The Seldom Seen farm was owned by Mr Keith Hammond.[61] Ms Dodd had previously visited the farm, which is on the southern side of North West Road 24.6 km from Badgingarra and 33.7 km from Moora.[62] In October 1998, Ms Dodd stayed there with her younger sister, Raeanne, who was a friend of Keith Hammond's granddaughter, Kristal. Ms Dodd told others that she had enjoyed her time on the farm.[63] She had also told others that she wanted to see Kristal's older brother, Mr Bradley Hammond,[64] who she had met at the farm.[65]
[60] ts 193.
[61] ts 391.
[62] See attachment 2.
[63] ts 170.
[64] I will refer to Mr Bradley Hammond as Bradley, and his father, Mr Keith Hammond, as Keith to distinguish between them. Bradley was also known as Brad.
[65] ts 185, 193.
Bradley Hammond testified that he did not have a close or any friendship with Ms Dodd.[66] This is not entirely consistent with the impression Ms Dodd gave to her friends,[67] or with Keith Hammond's evidence that Ms Dodd had telephoned and spoken to Bradley on two earlier occasions.[68] Bradley Hammond was not a convincing witness. It is unnecessary for me to determine the nature of the relationship between Bradley Hammond and Ms Dodd and whether Bradley has forgotten the contact he had with Ms Dodd or whether his evidence deliberately minimised that contact. This is because Bradley has an alibi for the day Ms Dodd went missing and it was not suggested to him or submitted to me that there is any evidence that he had anything to do with Ms Dodd's disappearance.
[66] ts 361.
[67] ts 185, 193.
[68] ts 393.
In pursuance of what they saw as an adventure, Ms Dodd and Ms Frederickson sold their vehicles, bought clothes and other equipment and pooled their resources in preparation for their trip. In the early morning of 22 July 1999 they left Mandurah. They hitchhiked to Rockingham where they walked to the home of Ms Frederickson's ex‑partner Mr Stuart Cutt. He gave them a lift to somewhere north of Perth. From there they hitchhiked to Eneabba, where they arrived on the afternoon of 22 July 1999.[69]
[69] ts 199 ‑ 200.
Ms Dodd called her mother from Eneabba to let her know that they had got there safely. She sounded excited and told her mother that she would ring her later.[70] She rang her mother again from Dongara that evening. Dongara is 154 km north of Badgingarra.[71] Mrs Dodd recalls that Ms Dodd told her that she and Ms Frederickson had hitchhiked from Eneabba to Dongara. However Ms Frederickson testified that a friend, Darren, gave them a lift to Dongara.[72] It does not matter which version is correct. The girls stayed at Darren's house, located on Ocean Drive, Dongara, that evening. Darren, who was a shearer, arranged work for Ms Dodd and Ms Frederickson as roustabouts on a local shearing team for the next two days.[73]
[70] ts 174.
[71] Exhibit 60.
[72] ts 199.
[73] ts 199.
Whilst in Dongara, Ms Dodd telephoned her mother[74] and sister Toni.[75] She sent a postcard to her mother, a birthday card to her sister, Raeanne,[76] and a present to her young niece.[77] In the postcard she said that she was having a good time.[78] She gave no indication that she was unhappy, that she was intending to travel out of Western Australia or was intending to stop communicating with her family.
[74] ts 175.
[75] ts 191.
[76] ts 178 ‑ 179; exhibits 3.1 ‑ 3.4, 4.1 and 4.2.
[77] ts 192.
[78] Exhibit 3.2.
On Sunday, 25 July 1999, Ms Dodd and Ms Frederickson went to the hotel at Mingenew, because Ms Frederickson's friends managed it. They cashed their pay checks for $180 at the hotel and bought some alcohol. After the hotel closed, they went to a party. Ms Dodd drank some alcohol but did not get very drunk.[79] The following day Ms Dodd told Ms Frederickson that she had been intimate with a young man but that she did not want to have a relationship with him.[80] Ms Dodd and Ms Frederickson got a lift back to Dongara.
[79] ts 202 ‑ 203.
[80] ts 232.
Ms Dodd told Ms Frederickson that she did not like the roustabout work because it was physically too hard for her.[81] On Monday, 26 July 1999, Ms Dodd and Ms Frederickson walked around Dongara and Ms Dodd put her name down at a number of businesses for work.[82] This behaviour was consistent with her wanting to get employment and stay in the area and also with her wanting to obtain proof that she was searching for work so as to maintain her entitlement to Centrelink benefits.
[81] ts 204.
[82] ts 217.
Ms Dodd and Ms Frederickson spoke to one another about getting a caravan together at the Dongara Strata Caravan Park, so that they would not have to live with other people.[83]
[83] ts 221.
On Tuesday, 27 July 1999, the girls' Centrelink benefits were paid into their bank accounts. Ms Dodd received a Youth Allowance of $270 per fortnight. It was paid directly into her Bankwest bank account.[84] Ms Dodd only had the one bank account and a key card to access that account.

Ms Dodd's purchase of the ankh earrings

[84] ts 121, 247.

Sometime on 27 July 1999 Ms Dodd and Ms Frederickson went to the Treefrog Book & Crystal Shop in Dongara (the Treefrog shop). Ms Dodd purchased a pair of silver metal earrings with a turquoise coloured stone in them. Ms Frederickson also wanted a pair, but there was only one set on display for purchase.[85] The earrings were in the design of the ankh, which is sometimes called the Egyptian cross, and the stone was in the middle of the ankh. Ms Frederickson described the ankh as being 2.5 cm ‑ 3 cm long.[86] The ankh was attached to a hook shaped piece of metal which looped through a pierced ear (shepherd's hook).[87] Ms Dodd also purchased a couple of silver rings.[88]
[85] ts 219.
[86] ts 219.
[87] ts 219.
[88] ts 220.
Ms Frederickson's evidence about Ms Dodd's purchase of the earrings is supported by the evidence of Ms Zandrea Morgan, the sales assistant from the Treefrog shop who recalls selling jewellery to Ms Dodd in July 1999, a few days before she saw a photograph of Ms Dodd on the news.[89] Ms Morgan told the police that she sold one or two rings to Ms Dodd. Although she did not mention earrings to the police, she testified that she sold rings or earrings but she could not recall any more specifics.[90]
[89] ts 308 ‑ 309.
[90] ts 310.
In cross‑examination, Ms Frederickson conceded that in her first statement to the police on 1 August 1999, she did not say that the earrings were bought at the Treefrog shop.[91] The only items she mentioned having been bought at the Treefrog shop were two rings. I do not consider this to be a significant omission. At the time that Ms Frederickson gave her statement, the place and time of purchase of the earrings was not a significant issue. She told the police that Ms Dodd owned the earrings and on 2 August 1999, she drew for the police a detailed picture of the earrings and other jewellery purchased by Ms Dodd.[92] Ms Frederickson made a second statement on 22 August 1999 in which she said that the earrings were purchased at the Treefrog shop.[93]
[91] ts 267.
[92] ts 233; exhibit 25. A copy of Ms Frederickson's drawing of the earrings is attached to these reasons as part of attachment 2.
[93] ts 266.

In the course of her evidence, Ms Frederickson also acknowledged that when she was re‑interviewed in 2013 and she made a third statement, she told the interviewing police officer that the earrings were purchased in Geraldton.[94] Ms Frederickson testified that this was an error. She gave reasons for her error. She said that the events had occurred 13 or 14 years earlier. In 2013, she had not had the opportunity to refresh her memory from her earlier statements, was very upset at being reminded of what are traumatic events and had a lot of personal problems at the time.[95] She testified that having refreshed her memory from her earlier statements she was certain that the earrings were purchased from the Treefrog shop by Ms Dodd.[96] I accept her evidence. The reasons she gave for the error she made in 2013 sufficiently explain why she made the mistake.
[94] ts 267.
[95] ts 259.
[96] ts 267.
The then proprietor of the Treefrog shop, Ms Helen James, testified that she saw Ms Dodd's image in the media. She recalled a person who looked like the image in the media purchasing jewellery from the shop a few days to a week beforehand.[97] She said that she was alone in the shop and the customer was also alone.[98] She said that it was the fact that the media information disclosed that Ms Dodd had a backpack which reminded her of the customer. A couple of things are notable about this evidence. First, Ms James said that the customer was alone[99] and secondly, Ms James' physical description of the customer did not match the description of Ms Dodd.[100]
[97] ts 321 ‑ 322.
[98] ts 323.
[99] ts 322.
[100] ts 322.
Ms James testified that the sort of jewellery she told at the Treefrog shop was not available anywhere else in Dongara. She said that it may have been stocked by a new age shop in Geraldton, but other than that Perth would have been the location of the nearest retailer of similar jewellery.[101]
[101] ts 326.
On 25 November 2013 a police officer showed Ms James three photographs of the ankh earring found by Ms Horner on the seat cover seized from Mr McConnell's ute on 6 August 1999. She said that the earring was identical to an earring which she sold in the Treefrog shop, although it looked bigger in the photographs.[102] This was not surprising as they were close up photographs of the earring. In cross‑examination, when reminded that in her police statement she had said that the earrings were similar to the one she stocked, she agreed that the earring was similar.[103] In re‑examination she said that the earrings were very similar and that there were no differences between the earring and the type she stocked.[104]'
[102] ts 328.
[103] ts 336.
[104] ts 339.
Ms James said that she stocked two sizes of these earrings. One size was around 2.5 cm long and the other around 3.5 cm long. The smaller size cost $15.00 and the larger size cost $25.00. She said that the earrings sold 'really well'. About once a month she would order about six pairs of these particular earrings in each size and she would order more in school holiday periods.[105]
[105] ts 330.
I conclude that Ms Dodd purchased the ankh earrings when she was in the Treefrog shop with Ms Frederickson on Tuesday, 27 July 1999. I do not exclude the possibility that Ms Dodd may have been in the shop on another occasion when Ms James was serving alone in the shop. She may also have purchased other jewellery at that time.
Also on Tuesday 27 July 1999, Ms Frederickson's then boyfriend, Mr Jamie Hutchinson, drove the girls to Geraldton.[106] In Geraldton, Ms Dodd purchased a number of items, including clothing, make‑up, sunglasses, and jewellery.[107]
[106] ts 268.
[107] ts 268.
Ms Dodd still wanted to visit the Hammond family at the Seldom Seen farm. On Wednesday, 28 July 1999, Ms Dodd telephoned Keith Hammond and told him that she was planning to visit the farm on Thursday, 29 July or Friday, 30 July 1999.[108] He told her that he would not be home on Thursday as he would be attending to responsibilities as a Shire councillor.[109] He told her that if she arrived at the farm before he returned home she could make herself at home until he returned. She did not tell him that she planned to hitchhike to the farm and he presumed she had a car.[110]
[108] ts 393.
[109] ts 394.
[110] ts 396.
Ms Dodd telephoned her mother and asked her to deposit $150 into her bank account as she had run out of money.[111] Mrs Dodd said she would see what she could do. Ms Dodd had received $450 in wages and government benefits in the previous week and she had spent all of this money on living expenses, clothes, jewellery, toiletries and alcohol. There is no evidence that she was saving money for a planned disappearance and the evidence indicates that she was still highly dependent on her parents for support.
[111] ts 122, 176.
On the evening of 28 July 1999, Ms Dodd gave Ms Frederickson her Bankwest key card and gave her permission to withdraw $100 from her account after her mother had deposited money into it.[112] The money was to assist with the rent of the caravan in Dongara. The plan was that Ms Frederickson would obtain accommodation for the pair at the Dongara Strata Caravan Park whilst Ms Dodd was at the farm. Ms Frederickson gave Ms Dodd the phone number for the caravan park, and it was agreed between them that Ms Dodd would telephone when she had reached the farm.[113]
[112] ts 218.
[113] ts 228.
I conclude that, consistent with what she told Ms Frederickson, Ms Dodd intended to return to Dongara after visiting the Seldom Seen farm for a couple of days.

Ms Dodd's movements on 29 July 1999

On Thursday, 29 July 1999, Ms Dodd woke and dressed before Ms Frederickson. She was wearing a pair of dark blue jeans, brown hiking boots, a black singlet‑type top and a black tight fitting cardigan with a single top button. The cardigan was made of a stretchy, polyester‑type fabric. Over the top of that she had a grey Dunlop brand jacket.[114] Sometime in the morning she left Ms Frederickson to hitchhike to the Seldom Seen farm via Badgingarra.[115]
[114] ts 225.
[115] ts 228.
When she left Ms Frederickson, Ms Dodd was wearing the clothes I have just described. She had on numerous silver rings, a silver cross necklace with a figure of Jesus and the ankh earrings she had purchased at the Treefrog shop.[116] I accept Ms Frederickson's evidence in this respect as she recalled seeing the earrings in Ms Dodd's ears when she gave Ms Dodd a farewell hug.
[116] ts 226.
Ms Dodd was carrying an Equip brand backpack, which contained more clothes. She also had a Quiksilver brand purse with a long shoulder strap. Other items she had with her included a camera, a map of Western Australia which Ms Frederickson had marked with the route of their journey,[117] Ms Frederickson's pocket knife and $5 ‑ $6 which Ms Frederickson had given to her.[118] Ms Frederickson also gave her a postcard to post to her daughter in Mount Magnet. The card arrived at its intended address on 2 August 1999 and so someone posted it.[119]
[117] ts 227.
[118] ts 227.
[119] ts 229.
Ms Dodd walked in a southerly direction along Brand Highway. Mr Donald Spry was driving a prime mover and towing a trailer with an excavator on it when he passed Ms Dodd approximately 700 m ‑ 800 m south of Dongara. He stopped at the Ampol service station on Brand Highway. Shortly afterwards, Ms Dodd approached Mr Spry and asked him if he was going to Perth. He told her that he was and she asked for a lift to Badgingarra. Mr Spry agreed to give her a lift in his truck.[120]
[120] ts 408 ‑ 409.
Mr Spry noted that Ms Dodd was wearing black and that she had a backpack and a map on which she followed their progress towards Badgingarra.[121]
[121] ts 410.
On the way Ms Dodd introduced herself as 'Hayley' and Mr Spry described her as 'bubbly'.[122] Ms Dodd told Mr Spry that she had been working as a roustabout and that she was going to stay with friends in Moora. She said she would be returning to Dongara in the near future. Mr Spry told her that he would be travelling back to the Dongara area and offered her a lift should she require one. He gave her a piece of paper with his name and mobile telephone number on it.
[122] ts 414.
Ms Dodd told Mr Spry that she was expecting her mother to deposit money into her bank account but it had not arrived and she had no money in her account. Mr Spry gave her about $15 before she got out of his truck.[123]
[123] ts 414.
At Badgingarra, Mr Spry turned left off the highway. Because of the size of his truck, Mr Spry could not pull up on the side of the highway. He drove his truck so that it was facing back towards the highway. He stopped the truck on the southern gravel verge of Meagher Drive, near a speed sign which was between the roadhouse and the highway. Ms Dodd got out of the truck and Mr Spry continued on his trip to Perth. He did not hear from her again.[124]
[124] ts 415.
Mr Spry testified that he dropped Ms Dodd off at just before 11.00 am[125] but other sightings of Ms Dodd[126] and telephone records prove that it was close to 10.30 am.[127]
[125] ts 417.
[126] These include Mr Albert Rowland, ts 426, and Mrs Eva Gerrard, ts 430.
[127] Exhibit 49.2.
Ms Dodd went to the public telephone box situated on the verge outside of the roadhouse.[128] She called the Dongara Strata Caravan Park at 10.35 am on 29 July 1999. The duration of this call was 47 seconds.[129] She spoke to a receptionist and asked to leave a message for her friend 'Lisa' to say that she was in Badgingarra.[130] It is agreed that at 10.38 am Ms Dodd purchased a bottle of water and a packet of potato chips at the roadhouse.[131]
[128] ts 426, 430.
[129] Exhibit 49.1.
[130] ts 424.
[131] ts 427; exhibit 259, 280.2.
Ms Dodd then started to walk along Meagher Drive, towards North West Road. She was not hitchhiking.[132] She was seen on Meagher Drive by Mr Michael Russell, a gasfitter, who drove into Badgingarra at approximately 10.30 am ‑ 11.00 am.[133]

Witnesses who claim to have seen a girl on North West Road on 29 July 1999

[132] ts 427 ‑ 428.

[133] ts 447; exhibit 55.4.

Mr John Piper saw Ms Dodd walking along the north side of North West Road, about half a kilometre from the Badgingarra town site, near the Badgingarra golf course, as he drove into Badgingarra from his home on the corner of North West Road and Winjardie Road.[134] He did not give evidence of the time he saw Ms Dodd but he said that he drove into Badgingarra after having morning tea at home at 9.30 am and then making some telephone calls.[135] His sighting of Ms Dodd is consistent with her leaving the roadhouse and starting to walk east, along North West Road, soon after she had purchased her chips and water. She was not hitchhiking when Mr Piper saw her.
[134] ts 439.
[135] ts 437.
Mr Piper described the girl he saw as wearing dark jeans, a short sleeved top which was dark blue and a grey or brown jumper tied around her waist.[136] Although the description of her clothing is not quite the same as that given by Ms Frederickson, it is likely that the top described by Mr Piper was the black cardigan and/or top described by Ms Frederickson and the jumper Mr Piper said was tied around her waist was the Dunlop brand jacket.
[136] ts 439.
Mr Piper returned to his home along the same route about 1½ ‑ 1¾ hours later, that is, between about 11.15 am and 11.30 am. He did not see Ms Dodd or anything out of the ordinary.[137] This is consistent with her having travelled past North West Road and Winjardie Road junction by the time Mr Piper drove home.
[137] ts 442.
Ms Dodd was also seen by Mrs Margaret Johnson, as she drove her gold coloured Holden Commodore sedan from Badgingarra to her workplace at Badgingarra Research Station, which was situated on Winjardie Road. Mrs Johnson does not recall the time she saw Ms Dodd but she said that the normal time at which she drove into Badgingarra to collect the mail was about 11.30 am ‑ 11.40 am.[138] She said that the trip took 10 minutes or maybe a bit longer and that she spent about 10 minutes in Badgingarra before she made the return trip and picked up Ms Dodd.[139] If Mrs Johnson made the trip at her usual time, she would have seen Ms Dodd at the earliest at 11.50 am.
[138] ts 472.
[139] ts 473.
Another witness who claims to have seen Ms Dodd in the same area, but around midday, is Mr Paul Wilkins. However his statement was given in 2015 and he was relying on his memory in order to estimate the time.[140] I also note that he is wrong about the spot he says he saw Ms Dodd on the side of the road because Ms Dodd travelled that section of road in Mrs Johnson's car, as I will now describe.
[140] ts 447; exhibit 56.
The times given by Ms Johnson and Mr Wilkins are inconsistent with that of other witnesses including Mr Giles, Mr Rowland, Mr Piper Mr Skipworth, Mr Moltoni and Mr and Mrs Weaver, whose evidence I will next recount. I find that Mrs Johnson made the trip earlier than she recalls that she usually made the trip to Badgingarra.
Just after the golf course, Mrs Johnson saw Ms Dodd walking on the north side of North West Road.[141] Ms Dodd was not hitchhiking but Mrs Johnson stopped her car and asked Ms Dodd where she was going. Mrs Johnson and each witness who was asked said that it was very unusual for a young girl to be walking along North West Road by herself.[142] Ms Dodd told her that she was going to Moora and Mrs Johnson told her that she could not take her that far but that she could give her a lift a bit further along the road. Ms Dodd accepted the lift and got into the front passenger seat of Mrs Johnson's car.[143]
[141] ts 474.
[142] ts 345, 354, 417, 440, 476.
[143] ts 476.
Ms Dodd told Mrs Johnson that she was going to visit friends who lived near Moora. She mentioned their name but Mrs Johnson did not know them. She said that they were expecting her at about 6.00 pm. She had got to Badgingarra quicker than she thought, and her friends would not be home when she arrived. Mrs Johnson asked whether she would be able to get into her friend's place if they were not home. Ms Dodd said she would. Ms Dodd had a bottle of water and a map in her hand. She had her jacket tied around her waist. Mrs Johnson turned left into Winjardie Road and dropped Ms Dodd off a short distance from the corner. She last saw Ms Dodd crossing North West Road onto the south side of the road.[144]
[144] ts 480 ‑ 481.
A married couple, Mark and Fiona Weaver, testified that just before 11.00 am they were driving in an easterly direction along North West Road, going to Badgingarra Primary School, which was on McNamara Road. The Weavers saw Ms Dodd get out of Mrs Johnson's car which had stopped after it turned off North West Road onto Winjardie Road. They noticed Ms Dodd start to walk on the north side of North West Road in an easterly direction.[145]
[145] ts 454, 461.
The Weavers then went to Badgingarra Primary School. They said that at approximately 11.15 am, they left the primary school and turned onto North West Road. They travelled in an easterly direction, towards the Badgingarra rubbish tip, which is on the northern side of North West Road, 400 m from the junction of North West Road and McNamara Road. Close to the entry of the rubbish tip, they saw Ms Dodd walking on the northern side of the road and in the same direction as they were travelling. She was not hitchhiking. Mr and Mrs Weaver drove into the rubbish tip and drove around the loop road in the tip. Only a couple of minutes later they exited the tip and turned right onto North West Road to return home. Ms Dodd had walked about 100 m further along North West Road towards Moora. She was not hitchhiking and she did not try to get their attention.[146]
[146] ts 457 ‑ 458, 463.
Mr and Mrs Weaver said that they knew what time it was because they were timing their visit to the primary school to coincide with recess which they believed was at 11.00 am.[147] However there is evidence from the then Badgingarra Primary School principal, Ms Angela Wilkinson, that recess was held usually between 10.20 am ‑ 10.35 am.[148] Unfortunately, this discrepancy was not put to Mr and Mrs Weaver and so I do not know what their response to it would have been. I also note that Ms Wilkinson was on sick leave between 19 July ‑ 6 August 1999.[149] Consequently, whilst she could give evidence about the usual recess time, she could not give direct evidence as to when recess occurred on 29 July 1999.
[147] ts 453, 458.
[148] ts 1079.
[149] ts 1079 ‑ 1080.
Even accepting that Mrs Johnson dropped Ms Dodd off earlier than she thought she did, Mrs Johnson could not have dropped Ms Dodd at the corner of North West Road and Winjardie Road by 10.20 am because Ms Dodd did not leave the roadhouse until after 10.38 am. Mrs Johnson was a patently honest witness and her evidence is entirely inconsistent with her travelling east along North West Road as early as 10.20 am.
I conclude that Mr and Mrs Weaver are incorrect in their evidence that they were at the primary school at recess. I am of the opinion that they were at the school around 11.00 am, as they testified. It is possible that at this point in the day Ms Dodd was not in a hurry to get to the Seldom Seen Farm because she knew that no one would be home so early in the day.
Another witness who saw Ms Dodd at about the same spot was Mr Laurie Giles, a transport driver. He was driving a white Toyota Hilux four wheel drive dual cab ute with a roo bar and roof rack. He was driving in a westerly direction along North West Road. He saw Ms Dodd when he passed a sign indicating the old Badgingarra town site. That would have been close to the intersection of McNamara Road and North West Road. He estimated the time to be between 11.00 am and 11.30 am.[150]
[150] ts 484.
Two other witnesses who saw Ms Dodd at around the same time were brothers‑in‑law, Mr David Skipworth and Mr Carl Moltoni. They were local residents who planned to travel to Jurien Bay for a fishing trip.[151] At about 10.30 am they met on the corner of North West Road and Dandaragan Road, having driven to that spot in different cars.[152] After a short conversation, Mr Skipworth drove his car in a westerly direction on North West Road, heading for Jurien Bay.
[151] The town of Jurien Bay was referred to as Jurien by some witnesses.
[152] ts 485 ‑ 486, 503 ‑ 504.
About 10 minutes along the road,[153] Mr Skipworth saw his cousin, Mr Geoffrey Wyatt, driving the shire rubbish truck in the opposite direction. Mr Skipworth said that he saw Mr Wyatt after he had passed the houses on the Ellis farm, which is on North West Road, east of Muthawandery Road.[154] He estimated that he saw Mr Wyatt a short distance to the east of the intersection of North West Road and Muthawandery Road.[155] Mr Ellis estimated that his farm gate which leads to the houses on his property to be about 8 km east of the intersection of North West Road and Muthawandery Road.[156] This evidence tends to suggest that Mr Skipworth saw Mr Wyatt further to the east than he recalled at the time he gave his evidence. This is especially so given that Mr Wyatt thought that he saw Mr Skipworth near Kolburn Road,[157] which is about 10 km further east than the meeting point indicated by Mr Skipworth.[158]
[153] Mr Skipworth was fairly vague about where and when he saw Mr Wyatt.
[154] ts 498; exhibit 20.
[155] Exhibit 65.
[156] I have estimated this distance by examining exhibit 133, and exhibit 17.
[157] On exhibit 17 it looks as if Kolburn Road turns into Agaton Road when it crosses North West Road. On exhibit 133 the two roads are slightly offset with Kolburn Road terminating where it meets the southern side of North West Road and Agaton Road commencing a short distance to the east but on the northern side of North West Road.
[158] ts 533.
Both Mr Wyatt and Mr Skipworth stopped their vehicles and Mr Wyatt got out of the rubbish truck to speak to Mr Skipworth. Mr Wyatt was planning to travel to Jurien Bay the following day and wanted to talk about the plans for the trip.[159]
[159] ts 522.

They were driving for about 10 minutes, during which the accused asked Ms M a lot of personal questions, such as where she lived and if she was running away from something such as a domestic dispute. He told her she was safe with him, and he offered to take her to the local Police if she had any problems as he got on really well with the local police. He appeared normal and concerned. She did not feel uncomfortable.
Eventually, he stopped the van at an intersection. She went to get out, but he offered her a coffee at his place. He agreed to drop her off afterwards, and she went with him. He drove on a dirt driveway to a very rundown house. He welcomed her into his home. They went inside, and the interior was very bare. There was an outdoor chair in the kitchen, and he told her to have a seat, which she did.
He offered her wine. When she refused, he insisted she have a drink of some kind, so she accepted an orange juice. The accused sat on the floor and asked if she smoked cannabis. She said that she did, even though she really did not. The accused produced some cannabis and asked her to roll a joint, which she did. She knew it was cannabis, because she had seen it and used it before. She lit it and gave it to him. She then said that she was ready to go home. He offered to let her stay for the night, but she said she wanted to go. He told her she could walk, and that he was not going to give her a lift. Ms M went to leave. She unlocked a latch and opened the front door. She heard the accused get up and follow her. She walked down the driveway and was just past the van when the accused called out to her that he would give her a lift. She took a couple of steps back towards the van when the accused started walking towards her. She noticed that his demeanour had changed, and he was threatening and scary. He approached her, grabbed her arm, and swung her around to face him. He had a large piece of wood in his hand, like an axe handle.
He raised it and hit Ms M twice on the top of her head. He may have hit her a third time, but she cannot recall. He went to hit her again, and she broke free of him and said to him 'Why are you doing this?' The accused replied, 'This is rape'. He told her that he liked her and that she was feisty.
He then dragged her back into the house by her hair. He dragged her into a room with a bed. He let go of her hair and grabbed her wrist. He told her to undress. Ms M was so frightened that she urinated. She was crying. He threatened to hit her again, if she did not do what he said, so she complied.
As she went to take off her top, the accused grabbed her skirt, sports shorts and underpants and pulled them all down at once. When she was completely naked, the accused pushed her onto the bed. The accused sat on top of her and tied her hands to the bedhead with rope which he got from the railing of the bedhead. He then sexually assaulted her by rubbing his penis on the outside of her vagina. Ms M described that he was treating her like she was his girlfriend and the incident was normal.
He kept her wrists tied together, but let her loose from the bed. He demanded she suck his penis and forced her to do so. He slapped her when she stopped. He told her that if she did what she was told, she would be okay. The silver locket Ms M was wearing on a chain around her neck flipped across her face.
She removed it and threw it across the room, fearing the accused would strangle her with it. The accused did not notice that she had thrown it. He eventually put her back on the bed. She promised she would not run away if he did not tie her back to the bed. He was mumbling about something, but she could not comprehend what he was saying. He lay on top of her. She started crying and he smacked the bottom of her jaw and covered her mouth with his hands saying, 'Shut up and keep quiet if you don't want to get hurt'. He fondled and sucked her breasts and bit her left breast. She screamed and he slapped her and then covered her nose and mouth with his hand causing her to have trouble breathing. He made her suck his penis again.
The accused dragged Ms M into the bathroom and made her have a shower. He made her suck his penis while she did so. He urinated on her back and hair. He showered her and then took her back into the bedroom. He lay on top of her and slapped her again. He then told her to take the star‑shaped earring out of her left ear. It was a small silver five pointed star stud earring which she wore in the top of her left ear. He said to her 'Take the earring out bitch'. She did so and gave it to him. She did not see what he did with it or where he put it, but he did not get off her.
After Ms M gave the accused the earring, he started to kiss her again and was licking and sucking her breasts. The accused asked her if she wanted to have sex with him and if she wanted him to wear a condom. She did not respond. He then tried to engage in penile vaginal penetration with her, but was unable to maintain his erection.
Not long after that, the accused fell asleep. Ms M tried to move, and the accused woke up. He told Ms M to suck his penis again and, eventually he ejaculated in her mouth. A short time later the accused fell asleep again. Eventually, Ms M noticed the room getting lighter as it was almost daylight. She moved and he woke up. He took her to another room and made her lie down, smacking her buttocks.
He put his left hand over her mouth and digitally penetrated her anus. He told her that he was going to keep her and that she would be fine if she did what he said. The accused then went out of the room and it sounded like he was in the kitchen. Ms M loosened the ropes on her wrists and her left hand came free. She grabbed the clothes she could and her wallet and ran out of the house.
He called out to her, but she kept running. She turned and saw him running behind her. He was naked and carrying a rope. She ran to the neighbour's house and sought help from a couple who were sitting on their front patio. Police arrived shortly thereafter.

Conclusions about the propensity evidence

The accused submits that there are significant differences between the accused's attack on Ms M and the State's allegations in this case which mean that the propensity evidence is not probative of the accused's guilt of an offence against Ms Dodd. These differences include:
(1)Ms M was significantly older at the time of the offence than Ms Dodd was at the time she disappeared;
(2)the accused had been drinking alcohol and smoking cannabis before he assaulted Ms M, whereas there is no evidence of him using alcohol or drugs on 29 July 1999;
(3)the assault on Ms M took place at night, while Ms Dodd disappeared during the day;
(4)Ms M was a mature woman, whereas Ms Dodd was childlike in her appearance; and
(5)the offences against Ms M occurred eight years after Ms Dodd disappeared.
He submits that I should conclude that Ms M was a one‑off victim.
The accused also submits that there is a difference between the intention of the accused when he attacked Ms M and the State's case that he attacked Ms Dodd intending to kill her.
After taking all of these matters into account, I find that the propensity evidence persuades me that in 1999, the accused was the type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her. This would be for the purpose of subduing her or overpowering her so that she was incapable of resisting him and so that he could rape her.
Although the incident with Ms M occurred eight years after Ms Dodd disappeared, there is no evidence of any change to the accused's character or life which would justify me finding that he developed this propensity between 1999 and 2007.
This means that it is more likely that he unlawfully killed Ms Dodd in the course of a similar attack. However I agree with the accused's counsel that it is far less probative of an intention to kill Ms Dodd. I acknowledge that it is possible that a person could become so enraged during such an attack that they would form an intention to kill. However as the propensity evidence shows a propensity for physical violence in order to facilitate a sexual assault, I consider that it is much more likely that Ms Dodd died in the course of being attacked to facilitate her sexual assault, rather than as a result of an attack intended to kill her.
I also find that the propensity evidence proves that the accused is a person who would be likely to take an earring as a trophy from his victim. This would explain why an earring was removed from Ms Dodd's ear but not why it was left in Mr McConnell's ute. On the other hand, the earring may well have come out of Ms Dodd's ear during a struggle with the accused.

Conclusions about the earring

I have already found that the earring was not planted in the seat cover. The accused submits that the evidence does not enable me to exclude as a reasonable hypothesis that the earring was dropped in the car by a person other than Ms Dodd.
First, he submits that given the damage to the hook there should have been trace DNA on the earring consistent with injury to the ear when it was removed. I do not accept that injury to the wearer would have occurred when the earring was removed. The wire of the shepherd's hook is malleable and could be bent without cutting or injuring skin, even if I assume that the damage was done whilst it was in the ear of the wearer.
In any event, if this was so, there should have been trace DNA of whoever was the wearer on the earring and there was none. The absence of DNA on the earring proves nothing.
Alternatively, the accused submits that the shepherd's hook's bent shape, the age of the ute and the seat cover, the availability of earrings of the same type, and evidence of the number of people who had used the ute, means that it is possible that the earring was left in the car prior to or after 29 July 1999 by a person unrelated to Ms Dodd and that it sat in the crease between the bench seat and backrest until it was disturbed by the police when they removed the car seat cover from Mr McConnell's ute on 6 August 1999.
Isolated from other evidence, that would be a reasonable possibility. However when considered with the evidence that:
(1)Ms Dodd was wearing an identical earring on 29 July 1999;
(2)the accused was driving Mr McConnell's ute on that date;
(3)the accused had the opportunity to pick up Ms Dodd;
(4)the accused told the police he would have picked her up had he seen her;
(5)the accused has a propensity to violently assault female hitchhikers; and
(6)the accused has a propensity to seek an earring from such victims,
I find that it is not a reasonable possibility that the earring found on the seat cover was left there prior to 29 July 1999 or that it belonged to anyone other than Ms Dodd.

Other possible suspects

Over the years, the police considered that there were a number of suspects who could have been involved in the disappearance of Ms Dodd.
These included:
•Mr Richard Watson. The police arranged to speak to him and on his way to the appointment he crashed his car and died.[914]
[914] ts 2293.
•Mr George Woolston.
•Mr Clinton James Horn.
•Mr Nathan John Murphy.
•Mr Robin David Macartney. In 1999, he was considered a person of interest because he was arrested, charged and convicted for the murder of Lalita Horsman in Geraldton. As that was in a broad area which included Badgingarra, the investigators had cause to consider him a person of interest for the disappearance of Ms Dodd.
•Mr Macartney had left the body of Ms Horsman in sand dunes in Geraldton in December 1999. A number of Crime Stoppers reports nominated him as a person of interest for Ms Dodd's murder.
•The police bugged his prison cell in an attempt to gain evidence. Some other inmates, who were not reliable informers, had alleged that Mr Macartney had said certain things to them about his involvement with Ms Dodd and there was also an allegation that he had newspaper clippings relating to Ms Dodd. Whilst Detective Sergeant Buck was the investigating officer, he spoke to Mr Macartney in prison and asked if he wanted to participate in an electronic record of interview. He declined to take part in a formal interview, but he was happy to take questions and speak to the police.[915]
•In Detective Sergeant Buck's opinion there was nothing to implicate Mr Macartney in the offence but he could not be excluded either. Mr Macartney is now dead.
•I also note that Geraldton is approximately 240 km from Badgingarra and it is another approximate 10 km from Badgingarra to where Ms Dodd went missing. It would have to be an amazing coincidence for Mr Macartney, who I understand resided in Geraldton or nearby, to have been on North West Road at the time Ms Dodd went missing.
•Mr Wayne Tynan. He was Mr Macartney's former brother‑in‑law and Mr Macartney nominated him as a person who may have been involved in Ms Dodd's disappearance.[916]
•Mr Mark Pendleton. Mr Pendleton was a known paedophile. In 1999 he was a teacher in Moora. He was on sick leave on 29 July 1999.[917]
•Mr Gregory Earnest Drage. Mr Drage had a long record of offending, including convictions for sexual assault. He regularly drove from South Hedland to Perth. The direct route would not take him along North West Road, but he could have taken a detour. He died on 21 March 2010 before the police had interviewed him about Ms Dodd's disappearance.[918]
[915] ts 2295.
[916] ts 2296.
[917] ts 2297.
[918] ts 2298.
There were also many shearers and itinerant farm workers in the area, not all of whom were spoken to and eliminated as persons who may have killed Ms Dodd.
In respect of these possible suspects, the only evidence before me of them and their movements was hearsay. In fairness to the accused and because there was no objection to the admission of the evidence, I have taken it into account. However I give the evidence limited weight because it is hearsay.
The result is that I find that there are other people who theoretically could be responsible for Ms Dodd's disappearance, but there is no evidence that they were so involved.

Conclusion as to whether the accused killed Ms Dodd

I have found that:
(1)in 1999 the accused had a propensity to pick up a lone female hitchhiker and to violently and seriously assault her so that she could not resist his sexual assault;
(2)the accused was alone in Mr McConnell's ute on North West Road in the area of the location of the 961 marker and 2 km east of it at about midday on 29 July 1999;
(3)on the same date Ms Dodd was picked up by a person in a vehicle from North West Road in the area of the 961 marker and 2 km east of it and killed by that person;
(4)at the time she was picked up by her killer Ms Dodd was wearing ankh silver earrings with a blue stone in the middle of the cross;
(5)on 5 August 1999 the police seized the car seat cover from Mr McConnell's ute and it had on it an ankh earring;
(6)the ankh earring which was found on the car seat cover was identical to one of the earrings worn by Ms Dodd on 29 July 1999; and
(7)it is not a reasonable possibility that the ankh earring belonged to anyone other than Ms Dodd.
Given these findings, I am satisfied beyond reasonable doubt that the accused picked up Ms Dodd and killed her on 29 July 1999 by some unknown means.
In coming to this finding I have taken into account not just the above circumstances, but all the proven circumstances. I consider that some of those circumstances favour the accused. In particular, I have taken into account that:
(1)there was a narrow window of time for the accused to encounter and pick up Ms Dodd;
(2)there was a limited period of time for him to then dispose of her body;
(3)people who spoke to the accused at the roadhouse shortly afterwards did not notice anything unusual in his demeanour;
(4)despite extensive searches, nothing has been located to connect the accused with Ms Dodd, apart from the earring;
(5)there are other suspects for the killing of Ms Dodd; and
(6)the accused suffers from the disadvantage of defending the State's allegations after a delay of 18 years.
I also take into account that much of the accused's account to police of what he did on 29 July 1999 is true or consistent with the facts I have found. However that is not of great weight because there is only approximately an hour and a half in which time the offence was committed and for which the accused could not honestly tell the police what he did and when he did it. Further, I have found that contrary to what the accused told the police, he was not in Moora at about midday on 29 July 1999.
I must weigh all the circumstances and after doing so, it is my judgment that there is no reasonable inference that I can draw which is consistent with the accused's innocence.
In particular, I do not consider it a reasonable inference to draw that the accused could be innocent when the evidence proves the following matters. They are, that he was driving alone on the same stretch of isolated road that Ms Dodd was walking on when she disappeared, that he has a propensity to pick up female hitchhikers and seriously assault them and compelling evidence that Ms Dodd was in Mr McConnell's ute in the form of the ankh earring which Ms Dodd was wearing the day she went missing being found in the ute.

Conclusion as to whether the accused intended to kill Ms Dodd

As I stated at the commencement of this judgment, the State put its case on the basis that if I was satisfied beyond reasonable doubt that the accused killed Ms Dodd, then I should find him guilty of wilful murder. I can only find him guilty of wilful murder if I am satisfied beyond reasonable doubt that the accused intended to kill Ms Dodd when he caused her death.
The State submits that the accused's lie to the police that Ms Dodd had not been in his car on 29 July 1999 and his conduct since that date in concealing Ms Dodd's death are words and actions that are demonstrative only of an intention to kill her.[919]
[919] ts 2755.
I am satisfied that the accused deliberately lied to the police when he told them that he had not picked up any hitchhiker and therefore Ms Dodd had not been in Mr McConnell's ute on 29 July 1999. I am satisfied that the lie related to a material issue. I am satisfied that the lie sprang from a realisation of guilt and fear of the truth. That is, I am satisfied that the accused knew that unless he lied about that matter he would be unable to provide any innocent explanation for him picking up Ms Dodd on North West Road and his actions thereafter. There is, however an issue as to whether the lie has been shown to be a lie by independent evidence, that is, by evidence other than the evidence which is to be supported by the lie. That is because it has been proven to be a lie by a combination of all the evidence in the case.
I am also satisfied that the accused's post‑offence conduct in concealing Ms Dodd's death for over 18 years is deliberate conduct which springs from a realisation of his guilt and a fear of the truth. Clearly that conduct relates to a material issue in the trial. However there is also an issue as to whether the post‑offence conduct has been proven by independent evidence; that is evidence other than the evidence which is to be supported by the conduct.
It is unnecessary for me to resolve the issues relating to the lie and the post‑offence conduct, because I am satisfied that even if they could be used to prove the intention of the accused when he killed Ms Dodd, the lie and the post offence conduct, in conjunction with all other relevant evidence, do not satisfy me that the accused intended to kill Ms Dodd.

That is because I find that it is a reasonable inference to draw from the evidence that the accused picked up Ms Dodd in order to sexually assault her and that he killed her in the prosecution of that unlawful purpose, without necessarily forming an intention to kill her.
It is my judgment that the accused's lie and post‑offence conduct is equally consistent with him killing Ms Dodd in the course of him subduing her for the purpose of sexually assaulting her as it is with him forming an intention to kill her. On the other hand, the propensity evidence and the evidence as a whole satisfies me that the accused has a propensity to use considerable violence against a victim in the course of a sexual assault. It does not satisfy me that the accused has a propensity to form an intention to kill and to kill for no other reason.
Consequently, I am not satisfied beyond reasonable doubt that when the accused killed Ms Dodd, he intended to kill Ms Dodd.

Conclusion as to whether the accused intended to cause Ms Dodd grievous bodily harm or whether he killed her in the other circumstance which constitutes murder

The accused may be found guilty of murder either on the basis that when he killed Ms Dodd he intended to cause her grievous bodily harm or alternatively that Ms Dodd's death was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger life.
There is a significant difference between the two bases. The first requires me to be satisfied beyond reasonable doubt that the accused had a subjective intention to cause grievous bodily harm to Ms Dodd. The alternative does not require me to be satisfied beyond reasonable doubt that the accused had such a subjective intention. Rather, it is necessary for me to be satisfied beyond reasonable doubt that the accused caused Ms Dodd's death by means of an act done in the prosecution of an unlawful purpose[920] and that the act which caused death was of such a nature as to be likely to endanger human life. That is an objective test.
[920] To prosecute an unlawful purpose means to carry out an unlawful purpose.
I am satisfied beyond reasonable doubt that the only inference to draw from the evidence is that the accused's act which caused Ms Dodd's death was an act done in his prosecution of an unlawful purpose. That is, it was done in the course of him carrying out an unlawful purpose, which was to subdue or overpower Ms Dodd by physically assaulting her. The purpose being, ultimately, to sexually assault her.
I am further satisfied beyond reasonable doubt that the act causing death must have been of such a nature as to be likely to endanger human life. There is no evidence before me which would enable me to conclude that the act causing death was an accident, or anything of that nature.
Further I am satisfied beyond reasonable doubt that at the time the accused did the act, his intention must have been to cause Ms Dodd grievous bodily harm. This is because his act or acts must have been done with the intention of preventing her from resisting his further assault on her. He could not have thought that he would be able to do that unless he caused her grievous bodily harm.
Thus the facts found by me prove beyond reasonable doubt both of the circumstances required for proof of murder.
As I noted earlier in my reasons, there is no evidence which could establish that the killing of Ms Dodd was lawful. I am satisfied beyond reasonable doubt that it was unlawful.

Verdict

It follows from the above findings that the accused is not guilty of wilful murder but guilty of murder.

Attachment 1

Attachment 2

Attachment 3

[2018] WASC 18

01/01/2018