Tilley v The King - [2023] SASCA 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TILLEY v THE KING
[2023] SASCA 80
Judgment of the Court of Appeal
(The Honourable Acting Chief Justice Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Buss)
3 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - ADMISSIBILITY GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
CRIMINAL LAW - PROCEDURE - SUMMING UP
This is an appeal against conviction.

Following a trial, Matthew Donald Tilley, the appellant, was found guilty of the murder of Mrs Suzanne Poll on 29 April 1993. The appellant was not arrested and charged with the offence until 21 September 2019. The trial commenced in November 2021.
The prosecution alleged that the appellant attended the Sands and McDougall newsagency located at Parabanks Shopping Complex in Salisbury (‘the newsagency’) on the evening of 29 April 1993 and stabbed Mrs Poll to death in the rear office of the store. There was no apparent motive for the offence.
There was no dispute that the offender stabbed Mrs Poll multiple times with the requisite intention to commit murder. The central issue in dispute at trial was identity. The prosecution case was wholly circumstantial and based primarily on DNA evidence which supported the proposition that the appellant was a contributor to multiple blood stains located at the crime scene. The prosecution alleged that in the course of the attack the appellant sustained a free-bleeding injury which caused him to deposit blood at various locations between the rear office of the newsagency (where Mrs Poll's body was found) and the sole point of entry/exit to the store.
The appellant did not give or call any evidence at the trial. Defence counsel challenged the accuracy and reliability of the DNA evidence; and contended that evidence adduced as part of the prosecution case raised a reasonable doubt as to whether the prosecution had proved the appellant was the offender.
The appellant now appeals against the conviction on the following, consolidated, grounds:
1.The trial Judge erred as a matter of law in his directions to the jury in relation to the absence of motive, inter alia, in that his Honour erroneously directed the jury that the prosecution did not have to prove motive because, in a case such as the present, ‘they would not know what it was themselves’ and ‘that it was a responsible position to take’.
2.The trial Judge erred in his directions to the jury as to the forensic evidence by failing to direct the jury that before they could rely on the forensic results, they must be satisfied beyond reasonable doubt that: the chain of evidence was established; and the risk of contamination was excluded.
2A. The trial Judge erred as a matter of law in admitting the evidence of the DNA results.
2A.1 The trial Judge erred in failing to provide any, or adequate, reasons for his ruling that the DNA evidence was admissible and/or, alternatively, in declining to exclude the evidence in the exercise of his discretion.
2A.2 The trial Judge erred in failing to find that the DNA evidence implicating the appellant was obtained in breach of the provisions of the Criminal Law (Forensic Procedures) Act 2007 (SA) (‘the CLFPA’).
Alternatively, the trial Judge ought to have excluded the DNA results in the exercise of his discretion as a result of the alleged breaches of the CLFPA and in the purported absence of authority to conduct familial searching, together with the unlawful and/or unfair circumstances in which police obtained the appellant’s DNA sample.

2A.3 The trial Judge erred in failing to find that the methodology and circumstances relating to obtaining the appellant’s DNA sample were unlawful, unfair and/or not authorised by the CLFPA.

Alternatively, the trial Judge ought to have exercised his discretion to exclude the DNA evidence as a result of the unlawful conduct and/or unfairness arising from the circumstances in which police obtained the sample of the appellant’s DNA.
2A.4 In relation to the alleged crime scene samples, the prosecution could not establish beyond reasonable doubt proof of the chain of evidence nor exclude the risk of contamination.

3.The trial Judge erred in his directions as to the evidence of M.
3.1.The trial Judge erred by failing to direct the jury as to the exculpatory use they could make of the evidence if they found that the appellant's statements were referable to Mrs Poll and true.
3.2.The trial Judge erred by failing to direct the jury that they must find proved beyond reasonable doubt that the appellant's statements were referable to the deceased before they could use them as evidence of lies.
3.3.The trial Judge’s directions were flawed in so far as they constituted a lies direction.
3.4.The trial Judge erred by failing to adequately present the defence case in relation to such statements.

3A.The trial Judge erred as a matter of law in admitting the evidence of M for the purposes contended by the prosecution. Alternatively, the trial Judge erred by failing to exclude the evidence of M in the exercise of his discretion.
4.The trial Judge erred in his directions as to the burden and standard of proof, and in failing to adequately and fairly present the defence case.
4.1.The trial Judge erred by failing to adequately direct the jury that the prosecution must exclude the reasonable possibility that the appellant did not kill the deceased.
4.2.The trial Judge erred by failing to adequately put the defence case as to the forensic evidence and M’s evidence, and interspersed his presentation of the defence address with rebuttal comments.

4A. The fair trial of the appellant miscarried as a result of the unbalanced summing up of the trial Judge.
5.The trial Judge erred by directing the jury that the evidence of Ms Deborah Parsons and the evidence of Dr Sara Jones (the shoe print evidence) was ‘consistent with’, and confirmatory of, the prosecution case.
6.The fair trial of the appellant miscarried as a result of the admission of the evidence of Dr Ross James that it was possible that the offender had suffered a cut during the attack causing a free-bleeding injury, and of Sergeant David Veldhoen as to a free-bleeding injury being responsible for various blood deposits located at the crime scene.

Permission to appeal on Grounds 2, 3.1, 3.4 and 4 was granted and the question of permission in relation to the balance of the remaining grounds was referred to this Court for consideration.
Held, per the Court, granting permission to appeal on Grounds 3.2, 3.3, 3A and 4A but refusing permission to appeal on the remaining Grounds and dismissing the appeal:
1.The trial Judge’s directions as to motive were not inadequate. His Honour made clear that motive, or the absence of motive, for the appellant to commit the offence was a factor the jury could take into account when determining whether the prosecution had proved the appellant’s guilt beyond reasonable doubt.
2.The trial Judge did not err in admitting the blood and DNA deposition evidence, nor were his directions in relation to that evidence inadequate such that there was a miscarriage of justice. His Honour expressly linked the requirement for the prosecution to prove the blood and DNA deposition evidence beyond reasonable doubt to an acceptance of the accuracy and reliability of the evidence, which was directly informed by reference to proof of the chain of evidence and the exclusion of the risk of contamination of the crime scene samples.
3.Notwithstanding the express strictures within the CLFPA as to what will constitute an impermissible use of the database, a plain reading of the Act permits the scientific processes which were conducted in this case; they were not unlawful.
4.The CLFPA regulates the performance of forensic procedures on a person’s body but does not go so far as to codify the manner in which police are required to obtain all forensic samples, nor does it apply to a forensic procedure authorised under another law of this State or a search of a person. In this case, the provisions of the CLFPA were not engaged by the police conduct in seizing the appellant’s discarded coffee cup. This conduct did not constitute a ‘forensic procedure’ for the purposes of the CLFPA in that it did not involve taking a sample, or other material, from a person’s body. Accordingly, the mechanism by which police obtained the appellant’s DNA profile was not unlawful or improper such as to give rise to the Bunning v Cross discretion.
5.There was sufficient evidence before the jury capable of establishing beyond reasonable doubt both the chain of evidence and excluding the risk of contamination. In any event, the issue of whether those matters were proven beyond reasonable doubt was a question of weight rather than admissibility.
6.The evidence of M was admissible, and the trial Judge did not err in declining to exclude it in the exercise of his discretion.
7.There was no miscarriage of justice occasioned by the trial Judge’s directions on lies.
8.In summing up, the trial Judge outlined the standard and burden of proof in orthodox terms. Those matters were reiterated when his Honour came to discuss the elements of the offence of murder and when instructing the jury on circumstantial evidence. The trial Judge did not err in his directions as to the burden and standard of proof.
9.When considered in its entirety, the trial Judge’s summing up was not unbalanced and his Honour’s remarks were not apt to create a substantial risk that the jury might actually be persuaded of the appellant’s guilt. Nor did his Honour fail to adequately and fairly present the defence case.
10.The evidence of Ms Parsons and Dr Jones were minor strands of the circumstantial case against the appellant. The trial Judge’s directions in relation to those bodies of evidence did not elevate the evidence beyond what it could properly establish as part of the prosecution case and were not erroneous; there was no risk that the jury would approach that evidence as directly implicating the appellant.
11.The authority of R v B and D (1993) 66 A Crim R 192 does not stand for the proposition that it is improper or misleading for a trial Judge to use the terms ‘consistent with’ in relation to strands of circumstantial evidence which, of themselves, do not necessarily implicate the accused.
12.The evidence of Dr James was not speculative, nor extend beyond his specialised knowledge or field of expertise. The evidence was not inadmissible.
13.The evidence of Sergeant Veldhoen was within his established expertise as to blood pattern analysis and was admissible as expert evidence.

Criminal Law (Forensic Procedures) Act 2007 (SA) ss 3, 4, 40, 41(1), 45(2), 45(2)(a), 45(3)(a), 47, 50, 50(1), 50(1)(a), referred to.
McKell v The Queen (2019) 264 CLR 307, applied.
Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; R v B and D (1993) 66 A Crim R 192, distinguished.
De Gruchy v The Queen (2002) 211 CLR 85; Dhanhoa v The Queen (2003) 217 CLR 1; Madubuko v The Queen (2011) 210 A Crim R 249 ; Nasaris v The Queen [2021] SASCA 143; Pyliotis v The Queen [2020] VSCA 134; R v Berry (2007) 176 A Crim R 195; R v Dastagir (2013) 118 SASR 83; R v Emes [2019] SASCFC 75; R v Golubovic [2016] SASCFC 144; R v Smith (1998) 71 SASR 543; Straker v The Queen (1977) 15 ALR 103; Velevski v The Queen (2002) 187 ALR 233; Volpe v The Queen [2020] VSCA 268; Webb v The Queen (1994) 13 WAR 257, discussed.
Bunning v Cross (1978) 141 CLR 54; Edwards v The Queen (1993) 178 CLR 193; R v Bonython (1984) 38 SASR 45; R v Christie [1914] AC 545; R v IAS (2004) 89 SASR 159; R v Karger (2002) 83 SASR 134; R v Tomazos NSWCCA 6 August 1971; R v Singh [2019] SASCFC 51; Roberts v The Queen (2022) 365 FLR 367; Shepherd v The Queen (1990) 170 CLR 573; Zoneff v The Queen (2000) 200 CLR 234, considered.

TILLEY v THE KING
[2023] SASCA 80
Court of Appeal – Criminal: Livesey P, David JA and Buss AJA

THE COURT: After a trial before a jury, the appellant, Matthew Tilley, was found guilty of the offence of murder. He was alleged to have murdered Mrs Suzanne Poll (‘Mrs Poll’) by stabbing her to death on 29 April 1993, when he was 21 years old. The appellant was not arrested and charged with the offence until 21 September 2019. The trial commenced in November 2021.
The prosecution alleged that the appellant attended a newsagency store, Sands and McDougall, located at the Parabanks Shopping Complex in Salisbury (‘the newsagency’), where Mrs Poll worked as a shop assistant. At around 9:00pm on 29 April 1993, shortly before closing time, the appellant allegedly violently attacked Mrs Poll in the rear office of the store, stabbing her to death with a knife. Mrs Poll’s cause of death was ultimately attributed to rapid blood loss caused by multiple stab wounds. There was no apparent motive for the offence.
The central issue at trial was identity. The prosecution case was wholly circumstantial and based primarily on DNA results extracted from multiple samples of blood-like stains located at the newsagency. The prosecution alleged that the offender sustained a free-bleeding injury during the attack and, consequently, deposited blood at various locations between the rear office, where Mrs Poll’s body was found, and the sole point of entry to, or exit from the store. Forensic evidence supported the proposition that the appellant was a contributor to blood- like samples taken from Mrs Poll’s cardigan, her right shoe, a plastic cup holding receipts, a State Bank envelope, and a Commonwealth Bank envelope.
The appellant did not give or call any evidence at trial. Defence counsel challenged the accuracy and reliability of the DNA evidence on two bases: first, that the chain of evidence relating to the blood samples was incomplete; and second, that the risk of contamination of the blood samples could not be excluded beyond reasonable doubt. It was submitted that the DNA results could not be relied on due to the imperfections in police crime scene examination processes, evidence collection techniques, exhibit recording, and the possibility of errors in forensic laboratory processes and record keeping.
At trial, defence counsel contended that there was evidence adduced as part of the prosecution case which raised a reasonable doubt as to whether the prosecution had proved the appellant was the offender. That evidence included:
·fingerprints on Mrs Poll’s handbag (which appeared to have been rifled through) which did not match the appellant’s fingerprints;
·DNA evidence that the appellant was not a contributor to samples taken from beneath Mrs Poll’s fingernails;
·witness’ evidence of other males observed in, or near, the newsagency at the relevant time who had an appearance inconsistent with the appellant’s appearance;
·the lack of injuries or cuts observed on the appellant (inconsistent with the prosecution case that he had sustained a free-bleeding injury during the alleged attack);
·the significant forensic disadvantage occasioned to the appellant by reason of the passage of time which precluded his ability to access work records which may otherwise have given him an alibi; and
·the absence of any known motive.
In recorded telephone calls, the appellant denied having committed the murder and said that he was not there when Mrs Poll was killed, nor did he have any knowledge of who committed the murder.
There was no contest as to the cause of death. Nor was it in dispute that the offender stabbed Mrs Poll multiple times with the requisite intention to commit murder. The contested issue at trial was whether the prosecution had proved the appellant was the offender; in other words, the identity of the offender.
The appellant now appeals against his conviction on the following (consolidated) grounds:
1.The trial Judge erred as a matter of law in his directions to the jury in relation to the absence of motive, inter alia, in that his Honour directed the jury that the prosecution did not have to prove motive because, in a case such as the present, ‘they would not know what it was themselves’ and ‘that it was a responsible position to take’.
2.The trial Judge erred in his directions to the jury as to the forensic evidence by failing to direct the jury that, before they could rely on the forensic results, they must be satisfied that the chain of evidence was established beyond reasonable doubt; and the risk of contamination was excluded beyond reasonable doubt.
2A. The trial Judge erred as a matter of law in admitting the evidence of the DNA results.
Particulars
2A.1The trial Judge erred in failing to provide any, or adequate, reasons for his ruling that the DNA evidence was admissible and/or, alternatively, in declining to exclude the evidence in the exercise of his discretion;
2A.2          The trial Judge erred in failing to find that the DNA evidence implicating the appellant was obtained in breach of the provisions of the Criminal Law (Forensic Procedures) Act 2007 (SA) (‘the ‘CLFPA’) and, in particular, that the use of ‘familial searching’ was authorised by the CLFPA.
Alternatively, the trial Judge ought to have excluded the DNA results in the exercise of his discretion as a result of the breaches of the CLFPA and the absence of authority to conduct familial testing, together with the unlawful and/or unfair circumstances in which police obtained a sample of the appellant’s DNA.
2A.3 The trial Judge erred in failing to find that the methodology and circumstances relating to obtaining a sample of the appellant’s DNA were unlawful, unfair and/or not authorised by the CLFPA.
Alternatively, the trial Judge ought to have exercised his discretion to exclude the DNA evidence as a result of the unlawful conduct and/or unfairness arising from the circumstances in which police obtained the sample of the appellant’s DNA.
2A.4 In relation to the alleged crime scene samples, the prosecution could not establish the chain of evidence nor exclude the risk of contamination, beyond reasonable doubt.
3.The trial Judge erred in his directions as to the evidence of M.
Particulars
3.1    The trial Judge erred by failing to direct the jury as to the exculpatory use they could make of the evidence if they found that the statements referred to Mrs Poll and were true.
3.2    The trial Judge erred by failing to direct the jury as to the need to make a finding beyond reasonable doubt that they were referable to Mrs Poll before they could use them as evidence of lies.
3.3    The trial Judge’s directions were flawed in so far as they constituted a lies direction.
3.4    The trial Judge erred by failing to adequately present the defence case in relation to such statements.
3A. The trial Judge erred as a matter of law in admitting the evidence of M for the purposes contended by the prosecution. Alternatively, the trial Judge erred by failing to exclude the evidence of M in the exercise of his discretion.
4.The trial Judge erred in his directions as to the burden and standard of proof, and in failing to adequately and fairly present the defence case.
Particulars
4.1    The trial Judge erred by failing to adequately direct the jury that the prosecution must exclude the reasonable possibility that the appellant did not kill Mrs Poll.
4.2    The trial Judge erred by failing to adequately put the defence case as to the forensic evidence and M’s evidence and interspersed the presentation of the summary of the defence address with rebuttal comments.
4A. The fair trial of the appellant miscarried as a result of the unbalanced summing up of the trial Judge.
5.The trial Judge erred by directing the jury that the evidence of Ms Deborah Parsons, and the shoe print evidence, was consistent with, and confirmatory of, the prosecution case.
6.The fair trial of the appellant miscarried as a result of the admission of the evidence of Dr Ross James that it was possible that the offender had suffered a cut during the attack causing a free-bleeding injury, and of Sergeant David Veldhoen as to a free-bleeding injury being responsible for various blood deposits located at the crime scene.

Permission to appeal on Grounds 2, 3.1, 3.4 and 4 was granted and the question of permission to appeal on the balance of the remaining grounds was referred to this Court for consideration.
Overview of the evidence
The prosecution case was that Mrs Poll had been stabbed to death at about 9:00pm on Thursday, 29 April 1993, while she was working alone in the newsagency. There were no eyewitnesses to the stabbing. The weapon used in the attack was never recovered by police. At the time of the discovery of Mrs Poll’s body, the store cash register draw was open and almost empty, and Mrs Poll’s handbag had the appearance of having been rifled through, thus raising the possibility that her death was connected to a robbery.
Mrs Poll was last seen alive at about 8:55pm by witnesses Lisa Watts (a co‑worker) and Ms Watts’ husband, Anthony Watts. Mrs Poll’s body was found at about 10:00pm by her husband, Darryl Poll, who attended at the store after she failed to return home by the expected time. Thus, the prosecution placed the timing of her death at between 8:55pm and 10:00pm.
Mrs Poll had been stabbed to death in a small staff-only office area located at the rear of the store behind the main service counter. Her body was found lying face-up on the floor and her handbag was nearby. The office door appeared to have been recently damaged as a result of the bottom part being pulled away from its frame with considerable force.
There was no dispute that the cause of death was haemorrhaging due to 18 stab wounds to the back, six of which penetrated so deeply that they exited through the front of Mrs Poll’s chest cavity and abdomen. There were also incised wounds to both hands, areas of the back, and the left side of her scalp, consistent with defensive wounds. Based upon the physical characteristics of the stab wounds, a forensic pathologist, Dr Ross James, concluded that a strong-bladed knife at least 22cm long had been used to inflict the wounds.
By reason of the nature and severity of the knife attack, ‘the large spillage of blood at the crime scene’, and the likely size and sharpness of the knife used in the attack; the prosecution alleged that the offender had sustained a free-bleeding injury whilst stabbing Mrs Poll.
There was a pool of blood on the floor under, and around, the body of Mrs Poll which, if trodden in, could have accounted for the presence of shoe impressions in the rear office and main shop area leading to the single point of entry to, and exit from the shop. The shoes worn by the first police officer on the scene, Mr Poll, and the only ambulance officer to go into the office area, were provided to forensic examiners and were accounted for amongst the shoe marks, thus leaving a number of unidentified shoe marks at points located between Mrs Poll’s body and the shop door. The shoe prints appeared to follow a path from the inside of the office to the shop door consistent with the departure route of the injured, free-bleeding offender after the attack. At the time of his arrest in September 2019, a men’s size nine shoe was the optimum fit for the appellant. The unaccounted shoe impressions were within that same size range.
The prosecution case was that the DNA evidence supported a conclusion that the appellant had deposited his blood (from a free-bleeding injury sustained during the attack on Mrs Poll) at various locations in the shop including: where Mrs Poll was stabbed in the rear office; on her handbag (which appeared to have been rifled through); around the shop in a general pathway leading from the rear office through the entry/exit door; and on and around the entry/exit door.
The samples which the prosecution relied upon as providing evidence of the appellant’s blood at the crime scene were as follows:
Exit door samples
(a)Stain on the lintel (SAM1):
There was a stain on the lintel which appeared to be a ‘drip stain’, that being a stain caused by blood falling under gravity at approximately 90 degrees and striking the surface below. In 1993, the stain gave a presumptive positive result for blood. A sample from the stain gave a single source DNA profile with a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the sample than if he was not.
(b)Stain on floormat inside the entrance of the store (SAM2):
There were three spots of blood on the vinyl floor mat inside the sole point of entry/exit to the store which had the appearance of drip stains. In 1993, the stain gave a presumptive positive result for blood. A sample from the stains gave a single source DNA profile with a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the sample than if he was not.
(c)The interior door handle (GDB1.1):
There was an apparent run of blood on the interior door handle which consisted of a transfer stain – that is, a stain caused by a bloodied object having come into contact with the door handle thus transferring a volume of blood onto it – which then ran down the handle under the force of gravity and caused a flow pattern. In 1993, the stain gave a presumptive positive result for blood. The sample gave a mixed DNA profile from two contributors with a calculated likelihood of 22 billion in favour of obtaining the profile if the appellant was a contributor to the sample rather than if he was not.
Office samples
(d)The damaged office door (SAM13):
There was a stain on the damaged office door which appeared to be a drip stain in that it had dropped onto the horizontal surface of the door and created a downward flow pattern under the force of gravity before something wiped across it from the inside of the office to the outside. In 1993, the stain gave a presumptive positive result for blood. The sample gave a mixed DNA profile from two contributors with a calculated likelihood of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the sample rather than if he was not.
(e)Mrs Poll’s cardigan (SAM15.B):
There was a stain detected on the front lower right sleeve of Mrs Poll’s cardigan which was located on the rear office floor. A cutting was taken from the stain which gave a mixed DNA profile from two contributors. There was a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the profile than if he was not, and a likelihood ratio of 880,000 in favour of the inclusion of Mrs Poll.
(f)Mrs Poll’s right shoe (SAM16.A):
There was a swab taken from the outer aspect of the sole of Mrs Poll’s right shoe which was loose on the rear office floor. It gave a mixed DNA profile from two contributors with a calculated likelihood of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor than if he was not. Statistical weightings were calculated in favour of the exclusion of Mrs Poll and Mr Poll as contributors to the mixture.
Handbag samples
(g)Commonwealth Bank envelope (JPH1.3.A):
There was apparent blood-like smearing on the front of a Commonwealth Bank envelope. The smearing gave a mixed DNA profile from two contributors for which there was a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor than if he was not; and a likelihood ratio of 2,300 in favour of the inclusion of Mrs Poll.
(h)State Bank envelope (JPH1.4.A):
There was apparent blood-like smearing on the edges of paper inside a State Bank envelope which gave a presumptive positive result for blood. This gave a mixed DNA profile from two contributors for which there was a likelihood ratio of 40 billion in favour of obtaining the profile if the appellant was a contributor than if he was not; and 680 in favour of the inclusion of Mrs Poll.
(i)Plastic holder (JPH1.6.A):
There was a stain approximately 20mm x 5mm in size located in the corner of a plastic holder containing receipts and paperwork which gave a presumptive positive result for blood. In 1993, the stain gave a single source DNA profile with a calculated likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor than if he was not.
Sergeant David Veldhoen, a blood stain pattern analyst, gave evidence that the entry/exit door samples could have been made by a person with a free-bleeding injury grabbing hold of the door handle, the pressure of which would cause blood to expel from the hand, thereby creating the flow pattern (GDB1.1), and when releasing that hold, causing individual blood drops to form and strike the ground (SAM1, SAM2).
On the prosecution case, the DNA results supported a conclusion that the appellant’s blood had been deposited at various positions in the newsagency during the course of, and in connection with, his attack on Mrs Poll. The crime scene evidence, blood pattern analysis, and DNA results (referred to by the trial Judge compendiously as the ‘blood and DNA deposition evidence’) were the primary pieces of circumstantial evidence against the appellant.
It was common ground between the parties that proof of the accuracy and reliability of the blood and DNA deposition evidence was an ‘indispensable link’ in proof of the offence and therefore needed to be proved beyond reasonable doubt.
Other circumstantial evidence
In addition to the blood and DNA deposition evidence, the prosecution relied on other pieces of circumstantial evidence to support their case that the appellant was the offender.
Appellant’s mother lived in the area
The appellant made a number of formal admissions at the trial pursuant to s 34 of the Evidence Act 1929 (SA). The admissions included that:
(a)in April 1993, the appellant's mother, Ms Mary Richardson, resided at a house at Lawrie Avenue, Salisbury;
(b)on 26 October 1992, the appellant reported the theft of his backpack to police and stated that his home address was his mother's house at Lawrie Avenue, Salisbury; and
(c)Department of Infrastructure and Transport records showed that on 26 May 1993 the appellant reported that his residential address was his mother's house at Lawrie Avenue, Salisbury.
From those admitted facts, the prosecution alleged that in 1993 the appellant’s mother lived in a house at Lawrie Avenue in Salisbury, which was on the opposite side of the Salisbury railway line to the Parabanks Shopping Centre. The appellant lived with her, at this address, until sometime just before June 1993. Ms Richardson gave evidence that after moving out, the appellant continued to visit her at her home at least once a fortnight. In recorded telephone calls from prison made after his arrest, the appellant confirmed to family members that he had been into the newsagency but denied that he was present at the time of the attack on Mrs Poll.
Evidence of Ms Deborah Parsons – male of a similar description
According to Ms Richardson, at the time the appellant lived with her at Lawrie Avenue, and visited her there in 1993, he had dark hair and ‘prominent’ dark eyebrows.
Sometime between about 9:10pm and 9:15pm on the evening of the murder, a witness, Ms Parsons, saw a young man with dark hair and thick, dark eyebrows, with his hands inside the pockets of a long coat, walking purposefully through a car park located between the newsagency and the Salisbury railway line. The male was heading from the general direction of the crime scene to the direction of the home of the appellant’s mother. Ms Parsons said that as her vehicle approached the young man, he spun around to face her, adopting an aggressive and defensive semi‑crouched stance; and it appeared he had been sweating.
The prosecution relied on the evidence of Ms Parsons as a piece of circumstantial evidence as to identity; that is, a young man fitting the general physical appearance of the appellant was seen in the area of the shop heading towards the home of the appellant’s mother shortly after the commission of the offence.
Shoe impressions
Following his arrest in September 2019, the appellant’s known shoe size was a men’s size nine, which was within the same size range as the shoe impressions of unknown origin located at the crime scene.
Appellant’s conversations with M
In July 2019, prior to the appellant’s arrest, and at a time when he could not have known he was a person of interest in connection with Mrs Poll’s murder, the appellant had a conversation with his then intimate partner, M, in Warrnambool (‘the Warrnambool conversation’). It was M’s evidence that the appellant told her that when he was younger he had an affair with an older married woman who worked in a shop that he used to go into and that this woman had been knifed to death by her husband.
On the prosecution case, it was open to the jury to conclude that the appellant was talking about Mrs Poll and thereby asserting a ‘connection’ to her. On the defence case, the appellant was discussing a different woman in different terms. This conversation is the subject of Appeal Grounds 3 and 3A.
With that overview of the evidence and the issues in dispute at trial, we turn to consider the appeal grounds.
Ground 1 – Directions as to motive
The appellant complains that the trial Judge erred as a matter of law in his directions to the jury regarding the absence of motive. The evidence at trial revealed no motive for the appellant to commit the offence. While there was some evidence suggestive of a robbery, it was not relied upon by the prosecution in proof of the appellant’s guilt.
Both the prosecutor and defence counsel addressed the jury as to the absence of motive. The prosecutor emphasised that while there was no evidence of a motive for the appellant to attack Mrs Poll, that did not detract from the incriminatory evidence against him. The prosecutor submitted that even without an apparent motive, there was no reasonable view of the blood and DNA deposition evidence consistent with innocence. The prosecutor urged the jury to delineate between a lack of motive and a lack of involvement in the crime and said:
The weight of the evidence reveals Suzanne Poll was happily married, supported by her family, and committed to her job. The point is not to say she could not possibly have had any enemies but rather to highlight the absence of anyone having an obvious motive to harm her. That is just another way of making the point that the absence of motive is not the be-all and end-all of determining a charge of murder because sometimes there is just no explicable reason for why things happen as they do.
Defence counsel also addressed the jury on the absence of motive and said that while motive was not an element of the offence, the jury ‘might still think that in a case like this [motive] is important’. Defence counsel said:
Now, robbery has been mentioned. Would you kill like that and not get the money? These are really ruminations or questions, rhetorical questions I’m posing. I don’t pretend, on the evidence, to be able to assist you about the motive here.
…
So, what to make of motive. You might think you’re not assisted very much by the evidence in this case about what the motive was. It has been described as a ferocious attack, and you might agree.
One thing which hasn’t been addressed is that we know from Dr James that Mrs Poll met her death lying face down because she received those stab wounds in the back and the exit wounds came out the front. But Darryl Poll describes arriving and he doesn’t describe turning her over, for example. So, has someone committed this ferocious attack and then turned her over? Is that the act of someone who knows her well? What does that tell you if anything?
It can be seen that both parties addressed the jury on the topic of motive, and the absence of the appellant having had a motive to murder Mrs Poll. On the one hand, the prosecutor contended that the absence of motive did little to undermine the strength of the prosecution case; while on the other, defence counsel emphasised that the appellant had no motive to have committed an offence characterised by its brutality suggestive of animosity between the offender and Mrs Poll.
The trial Judge instructed the jury that it was not for the prosecution to prove that the appellant had a motive to commit the offence; but the presence or absence of motive was a relevant matter for the jury to consider when assessing whether guilt had been established. The trial Judge instructed the jury not to speculate as to possible motives on the part of the appellant and cautioned the jury against ‘bootstrap reasoning.’ His Honour also noted that there is a distinction between the absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. His Honour instructed the jury that this was a case involving the former:
It is not for the prosecution to say why a person did kill a deceased person if it can be satisfactorily proved beyond reasonable doubt that he did do that killing and that you are prepared to infer from the circumstances I have taken you to before that it was not an accident and that it had the intention of killing or causing at least grievous bodily harm. We have been through that.
Of course, as I said at the outset, it is only human and reasonable to ask oneself ‘The accused is charged with murder, why would he do that? What is his motive?’, so you may look at the presence or absence of motive as a relevant matter when deciding whether the prosecution have indeed proven that the accused did commit the crime of murder but, as I have told you already, the prosecution do not have to prove, do not have to explain what the motive was because they would not know what it was themselves in a case like we have got here.
The next thing is that in a case such as this where the evidence does not clearly establish a definite motive for the accused to kill the deceased one must not adopt a process of, or akin to, speculating upon what motive he may have had and then using such possibility as a factor to be taken into account in assessing whether guilt has been established.
You can understand that is bootstraps reasoning, you know what that is: you cannot lift yourself up by your own bootstraps. It is sort of assuming that the person is guilty and asking why did he do it and then taking that speculation as to why he did it back to the original question of whether or not he did it. I will leave that with you, that is perhaps not the easiest thing I have discussed today, but it is not unimportant.
As I say, you can look at the situation of motive, you can take it into account with all of the rest of the facts before you when coming to that final decision as to whether or not it has been proven beyond reasonable doubt that the accused did commit murder.
I will put it in another way, which may or may not help you. It is another way of expressing what I have already put, so do not be worried about it because I am not suddenly putting something different or new. But in a number of cases, and in a decision of the High Court in De Gruchy v The Queen, the judges have explained that although an absence of evidence of possible motive is clearly a matter to be taken into account by the jury (as I have said to you that it is, particularly in a case based on circumstantial evidence, as this case is) there is a critical distinction between two things: between the absence of proven or apparent motive on the one hand and proven absence of motive on the other.
In other words, these are my words now, you have got to remember that you can have an absence of evidence of motive in a particular case, in other words prosecution tender their evidence, what they have got and there is an absence of evidence of motive there, so there is that. But that does not equate to proof that the accused could not have had some unknown motive or reason to commit the charged crime.
In other words, a person may have a reason that seems good to him, however logical or illogical, but which is never revealed and he commits a crime. Prosecution cannot stand up and say ‘Here is our evidence, here is all the circumstantial evidence that he committed a crime and here is our evidence as to why he did it’, but the fact that they do not lead evidence as to why he did it, or cannot do so, does not amount to proof that there was no motive because you simply do not know in a circumstance like that. You have to keep those situations apart.
(emphasis added)

Later, in summarising the prosecution case, his Honour said:
Next, the prosecutor referred to the fact that the deceased had no known enemies and, clearly, Mr Poll was not the killer. You can entirely discount him as the police have. There can be no suggestion that he was. So, the prosecutor says ‘Well, the motive is unclear, we do not know.’ Well, that is a responsible position to take and I have already directed you about the matter of motive and the prosecution do not have to prove a motive in circumstances where they simply cannot say, so I leave that with you.
(emphasis added)
The appellant contends that the trial Judge erred in his directions on motive. First, the appellant submits that the trial Judge, in referring to the prosecution’s stance in relation to motive as ‘a responsible position to take’, diluted the importance of the absence of motive to the defence case. Second, the appellant contends that the trial Judge erred by directing the jury that the prosecution do not have to prove a motive because ‘they would not know what it was themselves in a case like we have got here.’ The appellant complains that the inadequacy of the directions as to the absence of motive has resulted in a miscarriage of justice.
In De Gruchy v The Queen,[1] Gaudron, McHugh and Hayne JJ drew a distinction between an absence of apparent motive, on the one hand, and proven absence of motive, on the other:[2]
The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of “positive significance”, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.
[1] (2002) 211 CLR 85.
[2] De Gruchyv The Queen (2002) 211 CLR 85 at [30] per Gaudron, McHugh and Hayne JJ.
Relevantly, in a separate judgment, Kirby J set out some general propositions relevant to directions on motive and, in particular, the absence of motive. His Honour said:[3]
(1)    No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole.
(2)    Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation.
…
(5)    Where there is no evidence that the accused had a motive to commit the crime alleged, that is “always a fact in favour of the accused”. There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury's notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: “the more heinous the act … the more important becomes the question of motive.” If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard.
(6)    Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, “there may be a motive, and perhaps a strong one, but no evidence of it available”. In Pointer v United States, the Supreme Court of the United States put it this way: “The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction.”
(citations omitted)
[3]     De Gruchyv The Queen (2002) 211 CLR 85 at [57] per Kirby J.
We are satisfied that the trial Judge’s directions were not inadequate as to motive. As set out above, the trial Judge directed the jury that the term ‘motive’ is used in the sense of having a reason to do a particular act and noted that there may be many reasons for doing an act; and proof of motive is not an element of the offence of murder and need not be proved by the prosecution. His Honour instructed the jury that in a case such as this, where the evidence does not clearly establish a motive for the accused to kill Mrs Poll, one must not adopt a process of, or akin to, speculating about what motive he may have had and then use that possibility as a factor to be taken into account in assessing whether guilt has been established, or engage in ‘bootstrap reasoning’. As his Honour made clear, the absence of motive is still to be taken ‘into account with all the rest of the facts’ by the jury when coming to the final decision of whether or not it has been proven beyond reasonable doubt that the accused was guilty of murder.
In light of those directions, there is no basis to suggest that the jury would have failed to understand that while the prosecution need not prove motive beyond reasonable doubt, an absence of motive on the part of the appellant was a factor which they could take into account when determining whether his guilt had been proved. Whilst the trial Judge noted that the prosecution’s position as to motive was ‘responsible’ and the prosecution ‘would not know what [the motive] was themselves in a case like this’, those statements were directed towards, and would have been understood as, referable to the prosecution’s approach in not relying on a motive when there was no evidentiary basis for doing so.
Whilst it would have been preferable for the trial Judge to have referred to, or summarised, defence counsel’s arguments as to the appellant’s lack of motive to commit the offence, we are satisfied that the failure to do so did not result in a miscarriage of justice. The jury would have well understood that the apparent absence of a motive for the appellant to commit the offence was a factor which they could take into account when determining whether the prosecution had proven the appellant’s guilt beyond reasonable doubt.
Further, defence counsel did not, at any point during the summing up, request that the trial Judge give further directions on the topic of motive. While not determinative, the absence of any such request provides some practical indication that the trial Judge’s directions were sufficient to resolve the issues in the case.
We refuse permission to appeal on Ground 1.
Grounds 2 and 2A – The blood and DNA deposition evidence
These grounds of appeal relate to the alleged wrongful admission of the DNA evidence, and the trial Judge’s directions as to the blood and DNA deposition evidence.
Ground 2A – Admissibility of the DNA results
The appellant complains that the trial Judge erred as a matter of law in admitting evidence of the DNA results. There are four limbs to this argument which are as follows. First, the trial Judge provided inadequate reasons for his ruling which did not sufficiently expose the process of reasoning by which he admitted the DNA evidence. Second, the use of ‘familial testing’ constituted a breach of the CLFPA such that the evidence ought to have been excluded in the exercise of the discretion reposed in Bunning v Cross (‘the discretion’).[4] Third, police obtained the appellant’s DNA sample through unlawful or improper behaviour and the evidence ought to have been excluded in the exercise of the Court’s discretion. Fourth, the DNA evidence was inadmissible by reason of the prosecution’s inability to prove the chain of evidence or exclude the risk of contamination beyond reasonable doubt. In effect, the fourth limb of the complaint invokes largely the same submissions made in relation to Ground 2.
[4] Bunning v Cross (1978) 141 CLR 54.
At trial, defence counsel challenged the DNA results on the basis that ‘familial searching’ by Forensic Science South Australia (‘FSSA’) of the South Australian Criminal Reference and Evidence DNA Database (‘SACREDD’) which provided information that the appellant’s brother was a possible relative of the unknown male contributor to the crime scene sample JPH6.1.A, was unlawful. Evidence regarding the process of ‘familial searching’ undertaken at FSSA was adduced from two forensic scientists who were employed there at the relevant time: Dr Duncan Taylor and Dr Damien Abarno.
The trial Judge ruled that the DNA evidence was admissible as a matter of law and, in any event, he would not have exercised his discretion to exclude the evidence. His Honour said:
I presently have before me a rule 49 notice filed by the defence which seeks 10 orders concerning exclusion of evidence.
…
As to proposed order 5 concerning the DNA evidence, I now rule in favour of the prosecution and rule that the DNA evidence is, in fact, admissible as a matter of law.
Of course, I have to also consider the further question of discretionary exclusion. I note, of course, s.47 of the Forensic Procedure Act does refer to this topic, but 47(1) is limited to evidence which is obtained as a result of the forensic procedure. And that evidence is stated to be not admissible in evidence against the person on whom the procedure was carried out.
That, of course, is not the factual situation in the present case, and counsel for the defence quite reasonably concedes that that is the position, and that what she is, in fact, relying upon is the common law Bunning v Cross discretion to exclude.
As to the exercise of that discretion, I would decline to exclude any of the evidence, having taken into account all of the well-known factors referred to in Bunning v Cross and, of course, the facts and circumstances in this particular case.
I do not propose to give any further detailed reasons on that now but that is my ruling.
Adequacy of reasons
As to the first limb, the appellant submits that the trial Judge’s reasons are inadequate.
The obligation to give reasons for intermediate evidentiary rulings was considered by the Full Court of the Supreme Court of Western Australia in Webb v The Queen[5] (‘Webb’). Justice Ipp said:[6]
Where an omission to give reasons at the conclusion of a voir dire concerning the admissibility of a confession results in it not being possible to determine whether the presiding judge has considered the true issues, and whether he has applied the appropriate legal principles and has taken all relevant factors into account, legal error is disclosed. If that were not the case the statutory right of appeal would be rendered nugatory. It is crucial that the judge's reasons be sufficient to satisfy the overriding principle, namely, that the decision be couched in such a form as to make it possible for an appellate court, fairly, to assess its merits.
[5] (1994) 13 WAR 257.
[6] Webb v The Queen (1994) 13 WAR 257 at 271 per Ipp J (with whom Malcolm CJ and Seaman J agreed).
The case of Webb involved the admissibility of a confession where in issue was the appellant’s intellectual capacity to comprehend relevant matters whilst giving evidence. The Court held that the reasons were inadequate as they did not reveal whether the judge, at first instance, had properly considered the relevant issues and applied the appropriate legal principles. As the matter concerned a factual dispute turning on issues of credibility, the Court was not in the same position as the primary judge to arrive at its own view; and the appeal was allowed.
In Madubuko v The Queen[7] the Court of Criminal Appeal of New South Wales considered the failure to give reasons in the context of an application by the appellant for a separate trial. The appellant complained that the failure to provide reasons constituted an error of law. In dismissing the appeal, Hodgson JA said:[8]
Considering first the question of failure to give reasons, such failure does generally constitute an error of law where reasons are appropriate, but this does not necessarily require that an appeal be upheld. In particular, if the matter as to which reasons are not given is one on which an appeal court can come to its own view, and if that view is that the result arrived at by the primary judge was correct, then normally an appeal would be dismissed.
[7] (2011) 210 A Crim R 249.
[8] Madubuko v The Queen (2011) 210 A Crim R 249 at [22] per Hodgson JA (with whom Hoeben J and Grove AJ agreed).
In the present case, the trial Judge was required to determine whether familial searching was permitted under the CLFPA. This involved an exercise in statutory construction. Depending on the determination of that question, the trial Judge was then required to determine whether the DNA results (subsequently obtained from a comparison between the appellant’s DNA profile taken from his arrest buccal swab and the crime scene samples) ought to be excluded in the exercise of his discretion. In considering whether to exercise his discretion to exclude the evidence, the trial Judge was also required to take into account defence counsel’s submission as to the lawfulness by which the appellant’s DNA sample was first obtained by police from a coffee cup which was said to have been discarded by the appellant into a nearby bin.
It is to be accepted that the trial Judge’s reasons were brief and did not specifically address the issues raised by counsel, nor provide an analysis of the relevant legislative provisions which were the subject of comprehensive oral and written submissions. However, the absence of detailed reasons does not present this Court with any impediment in determining whether the trial Judge’s ruling was correct. In doing so, there is no need for this Court to consider any issues of credibility, nor is there any dispute as to the factual basis upon which the issues arise for determination. The trial Judge did not enjoy any advantage over this Court in deciding whether the DNA evidence ought to be admitted. Accordingly, if the DNA evidence was properly admitted, the brevity of reasons for doing so does not constitute an error of law which would require that the appeal be allowed.
Familial Searching
Turning to the appellant’s second contention, that the trial Judge erred in finding that ‘familial searching’ was authorised by the CLFPA or, alternatively, that he erred in declining to exclude the DNA evidence in the exercise of his discretion, we first set out the statutory framework upon which the appeal must be decided.
The statutory framework
The CLFPA provides for the carrying out of forensic procedures to obtain evidence relevant to the investigation of criminal offences and for other purposes, and to make provision for a DNA database. The CLFPA confers power, in certain stated circumstances, upon the police or a law enforcement authority to obtain forensic material (relevantly, a DNA sample and DNA profile) from a person through the conduct of a forensic procedure.
The CLFPA purports to strictly regulate the circumstances in which a DNA profile may be obtained in the course of carrying out a forensic procedure; what may, or may not, be done with a DNA profile once obtained; and what may, or may not, be done in relation to the DNA database.
The structure of the Act is as follows:
1.Part 1 includes an interpretation section.
2.Part 2 authorises the carrying out of forensic procedures upon persons. There are four categories of ‘persons’ defined under this Part. Division 1 governs procedures relating to volunteers and victims. Division 2 governs procedures relating to suspects. Division 3 governs procedures relating to offenders. Division 4 governs blood testing of certain persons for communicable diseases.
3.Part 3 makes provision for the carrying out of forensic procedures.
4.Part 4 concerns material obtained by the carrying out of forensic procedures and how it is to be dealt with.
5.Part 5 makes provision for the ‘DNA database system’, including access to, and use of, the database.
6.Part 6 concerns evidence including the effect of non-compliance with the CLFPA.[9]
7.Part 7 concerns miscellaneous matters including confidentiality or non‑disclosure provisions.[10]
[9] Relevantly, s 47 of the CLFPA relates to the effect of non-compliance on the admissibility of evidence.
[10] Relevantly, s 50 of the CLFPA sets out the requirements in relation to confidentiality.
The terms ‘forensic material’ and ‘forensic procedure’ are defined in s 3 as follows:
forensic material means material obtained by carrying out a forensic procedure (but does not include the results of the analysis of any such material);
forensic procedure means a procedure carried out by or on behalf of South Australia Police or a law enforcement authority and consisting of—
(a) the taking of prints of the hands, fingers, feet or toes; or
(b) an examination of a part of a person's body (but not an examination that can be conducted without disturbing the person's clothing and without physical contact with the person); or
(c) the taking of a sample of biological or other material from a person's body (but not the taking of a detached hair from the person's clothing); or
Note—
This would include, for example, taking a sample of the person's hair, a sample of the person's fingernails or toenails or material under the person's fingernails or toenails, a blood sample, a sample by buccal swab or a sample of saliva.
(d) the taking of an impression or cast of a part of a person's body;
Note—
This would include, for example, the taking of a dental impression or the taking of an impression or cast of a wound.
In relation to the retention of DNA samples and DNA profiles, s 41(1) provides that the Commissioner of Police may maintain a ‘DNA database system’.
The term ‘DNA database system’ is defined in s 40 of the CLFPA as follows:
DNA database system means a database (whether in computerised or other form and however described) containing—
(a) the following indexes of DNA profiles and information that may be used to identify the person from whose biological material each DNA profile was derived:
(i) a crime scene index;
(ii) a missing persons index;
(iii) an unknown deceased persons index;
(iv) a suspects/offenders index;
(v) a volunteers (unlimited purposes) index;
(vi) a volunteers (limited purposes) index; and
(b) a statistical index; and
(c) any other index prescribed by the regulations;
Relevantly, the terms ‘crime scene index’ and ‘suspects/offenders index’ are also defined in s 40 as follows:
crime scene index means an index of DNA profiles derived from biological material found—
(a)     at any place (whether within or outside Australia) where an offence was, or is reasonably suspected of having been, committed; or
(b)     on or within the body of the victim, or a person reasonably suspected of being a victim, of an offence; or
(c)     on anything worn or carried by the victim at the time when an offence was, or is reasonably suspected of having been, committed; or
(d)     on or within the body of any person, on any thing, or at any place, associated with the commission of an offence;
…
Suspects/offenders index means an index of DNA profiles derived from forensic material of persons—
(a)     on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 1 if an assimilation order has been made in relation to the material or a court or other authority has ordered, in accordance with a corresponding law, that the material be treated as if it were material obtained from a person suspected of an offence; and
(b)     on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 2, or a corresponding law; and
(c)     on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 3 or a corresponding law.

The DNA database maintained by the Commissioner is, as previously mentioned, called ‘SACREDD’.
Other provisions in Part 5 of the CLFPA regulate what information from forensic material may be included in the database, and creates offences for the unauthorised storage, accessing and retention of such information, as well as a criminal penalty provision for intentional or reckless disclosure of such information.
Section 45(2) sets out the purposes for which a person authorised by the Commissioner of Police may access information stored on the DNA database. It provides:
(2)A person authorised by the Commissioner of Police may access information stored on the DNA database system for 1 or more of the following purposes:
(a)     for the purpose of comparing a DNA profile stored on an index of the DNA database system with any other DNA profiles stored on the DNA database system;
(b)     for the purpose of proceedings for a serious offence or proceedings under the Criminal Assets Confiscation Act 2005;
(c)     for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act or a corresponding law;
(d)     for the purpose of a coronial inquest or inquiry;
(e)     for the purpose of making the information available to the person to whom the information relates;
(f)     for the purpose of administering the DNA database system;
(g)     for the purpose of an arrangement entered into by the Minister under section 41(2);
(h)     for the purpose of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 of the Commonwealth;
(i)    for the purpose of an investigation by the Ombudsman or the Police Ombudsman;
(j)    for the purpose of an audit under section 57;
(k)     for any other purpose prescribed by regulation.
In Part 7 of the CLFPA there are provisions as to confidentiality including s 50 which provides:
50—Confidentiality
(1) A person who has, or has had, access to information obtained under this Act or information stored on the DNA database system must not disclose the information unless—
(a)the disclosure is necessary for criminal investigation purposes or a missing persons inquiry; or
(b)the disclosure is necessary for the purpose of proceedings for a serious offence or proceedings under the Criminal Assets Confiscation Act 2005; or
(c)the disclosure is necessary for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act or a corresponding law; or
(d)the disclosure is necessary for the purpose of a coronial inquest or inquiry; or
(e)the disclosure is necessary for the purpose of making the information available to the person to whom the information relates; or
(f)the disclosure is necessary for the purpose of administering the DNA database system; or
(g)the disclosure is necessary for the purpose of an arrangement entered into by the Minister under section 41(2); or
(h)the disclosure is necessary for the purpose of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 of the Commonwealth; or
(i)the disclosure is necessary for the purpose of an investigation by the Ombudsman or the Police Ombudsman; or
(j)the disclosure is necessary for the purpose of an audit under section 57; or
(k)the disclosure is made to a legal practitioner and is made for the purpose of obtaining legal advice; or
(l)the information is publicly known; or
(m)the disclosure is necessary for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure was carried out; or
(n)the disclosure is necessary for the medical treatment of the person to whom the information relates or any other person; or
(o)the person to whom the information relates consents to the disclosure; or
(p)the information is disclosed for a purpose of a kind prescribed by regulation.
(2) A person who intentionally or recklessly discloses information in contravention of this section is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
The forensic processes undertaken by FSSA
In considering whether ‘familial searching’ is permitted under the CLFPA, it is necessary to outline the specific forensic processes by which the relevant DNA profiles were obtained, and the scientific tasks undertaken in this case, which have compendiously been referred to as ‘familial searching.’
The appellant’s DNA profile was obtained in the following way.
An investigation into the murder of Mrs Poll commenced in April 1993. No arrest was made, and the investigation remained open. In 1993, various crime scene samples (collected from the newsagency store) were analysed at FSSA utilising DNA profiling systems, available at the time, which targeted up to four regions, or loci, on the DNA strand. In 1999, FSSA commenced using the Profiler Plus System which targeted nine loci, plus a gender determining locus, and carried greater discriminating power in distinguishing individuals. In December 2001, FSSA reported that one of the crime scene samples (from a plastic holder containing receipts and paperwork in Mrs Poll’s handbag labelled JPH1.6.A) yielded a DNA profile of an unknown male on an item described as ‘a plastic holder and receipts and motor reg papers from black handbag’. This unknown male DNA profile was uploaded onto the SACREDD.
As of August 2009, there was no match between the unknown male DNA profile and any other DNA profile held on the SACREDD. Police requested FSSA to compare the unknown male DNA profile against other DNA profiles held in the database to identify possible relatives of the donor of that sample. It is this process of comparison which is described as ‘familial searching’. We will set out in more detail later the scientific task involved in that process in this case.
Dr Taylor, a Forensic Scientist at FSSA, undertook the process of familial searching and identified a number of potential female relatives of the donor of the unknown male DNA profile (‘the first familial search’).
As of 29 November 2016, there was still no match between the unknown male DNA profile and any other DNA profile held on the database. Dr Taylor undertook a second familial search. By this time the FSSA was using the GlobalFiler DNA Profiling System targeting 21 loci on non-sex chromosomes and three loci on sex chromosomes. Thus, it had greater power to distinguish relatives from non-relatives. In addition to identifying several potential female relatives of the donor of the unknown male profile, this second familial search identified one potential male relative on the basis of shared possession of the same Y‑Chromosome profile. The male relative was identified as the appellant’s brother, whose DNA profile was on the suspects/offenders index of the SACREDD.
There was no suggestion at trial, or before this Court, that the DNA profile of the appellant’s brother, or the DNA profile of the unknown male, were not lawfully and properly on the relevant indices of the database.
The second familial searching report was forwarded by the FSSA to the investigating police officer, Detective Roderick Huppatz. He then made inquiries into members of the Tilley family and, ultimately, the appellant.
On 5 September 2019, Detectives Huppatz and Tucker travelled to Ballarat, Victoria and, once there, contacted the appellant advising him of their wish to speak with him.
On 6 September 2019, they met with the appellant in Daylesford and advised him that a family member (his brother) whose profile was on the DNA database was similar to a DNA profile located at the crime scene of the murder of Mrs Poll. Detective Huppatz also advised the appellant of the possibility of a male relative of the appellant’s brother having a similar or matching DNA profile, and requested a ‘volunteer sample’ from the appellant. The appellant declined to provide a sample. A short time later, Detective Huppatz observed the appellant discard a disposable coffee cup into a public rubbish bin. Once the appellant had left the area, Detective Huppatz retrieved the coffee cup from the bin, sealed it in a paper envelope and brought it back to Adelaide where it was subsequently submitted to FSSA for DNA analysis.
Dr Taylor extracted a mixed DNA profile from a sample taken from the coffee cup, the major component of which was compared to the unknown male DNA profile from the crime scene sample JPH1.6.A. Dr Taylor calculated a likelihood ratio of more than 100 billion in favour of the hypothesis that the contributor of the major component of the DNA sample taken from the coffee cup was a contributor to the single source crime scene profile extracted from sample JPH1.6.A.
On 21 September 2019, on the basis of that aforementioned DNA result, the appellant was arrested for the murder of Mrs Poll. On 23 September 2019, he was extradited to South Australia and police took a buccal swab from him. There was no dispute that the appellant’s arrest buccal swab was lawfully obtained under the CLFPA. The forensic material from the appellant’s buccal swap was used for comparison with the crime scene samples (including JPH1.6.A) resulting in the impugned DNA evidence.
Thus, there were in fact three processes engaged in by the FSSA which produced the DNA results.
The first process involved the ‘familial searching’ of the database. More specifically, Dr Taylor compared the DNA profile of the unknown contributor to sample JPH1.6.A with profiles on the suspects/offenders index on SACREDD (including that of the appellant’s brother). This involved identifying the commonality of alleles between two profiles (one being the unknown male DNA profile extracted from JPH1.6.A) with a view to drawing some statistical evaluation as to the relatedness between the donor of the two DNA profiles. FSSA then conducted an analysis of Y-Chromosome short tandem repeats (Y-STR) profiles, which enabled the identification of potential close male relatives on account of the Y-Chromosome passing down unchanged via paternal lineage.
More specifically, in the second familial search, Dr Taylor compared the unknown male profile to reference profiles of suspects and convicted offenders that had been uploaded to SACREDD up to 25 October 2016.[11] Dr Taylor calculated paternity[12] and sibship[13] indexes and then further investigated the top 100 most likely potential relatives. Following analysis on the GlobalFiler system, it was determined that the appellant’s brother possessed the same Y-Chromosome profile as the unknown male contributor to the DNA profile extracted from JPH1.6.A. Further, the sibship index was 255, meaning that the probability of obtaining the profile of the unknown male DNA sample and the profile of the appellant’s brother was 255 times higher if they were siblings than if they were unrelated to each other. This likelihood ratio was described as ‘very strong support’ for that hypothesis.
[11] The first search only identified potential female relatives.
[12] A paternity index is a ratio that specifically considers the likelihood of two people being a parent and child, as opposed to being unrelated.
[13] A sibship index is a ratio that specifically considers the likelihood of two people being either siblings or unrelated.
The second forensic process undertaken by the FSSA involved extracting a DNA profile from a swab taken from the discarded coffee cup. It was common ground at trial, and in this Court, that this process did not involve a ‘forensic procedure’ as defined by the CLFPA. Further, the DNA profile was not uploaded to the database because it did not meet the definition of ‘forensic material’ that may form part of the crime scene index (or any other index). The FSSA compared the DNA profile obtained from the discarded coffee cup with the unknown male DNA sample taken from the crime scene sample JPH1.6.A. This was a direct comparison between DNA profiles which did not involve accessing the DNA database.
The third process engaged in by the FSSA occurred after the appellant’s arrest. The appellant’s DNA profile was obtained from the buccal swab taken upon his arrest. The FSSA then conducted a series of direct comparisons between the appellant’s DNA profile and various crime scene samples. The results of that forensic work gave rise to the impugned DNA results/evidence adduced at trial.
The parties’ submissions
The appellant contends that the process of ‘familial searching’ is not permitted under the CLFPA. The CLFPA allows for the obtaining of DNA profiles, and the retention of those DNA profiles onto a DNA database, in strictly prescribed circumstances. It amounts to legislation which authorises intrusion into an individual’s privacy and what would otherwise be tortious conduct. Accordingly, the legislative provisions should be strictly construed and applied.
The appellant emphasises that throughout the CLFPA a distinction is drawn between the rights of offenders as opposed to other members of the community. For example, there are three lawful means by which a person’s DNA profile may be obtained under the Act: volunteers and victims’ procedures, suspects procedures, and offenders’ procedures. In the case of a person who is not a suspect or an offender, there is no power to compel the provision of forensic material. The incursions permitted in respect of offenders are not permitted on other members of the community.
Moreover, the CLFPA creates a DNA database in two parts: one containing profiles and information that may be used to identify the person from whose biological material each DNA profile was derived (an ‘identified database’); and one which is compiled for statistical purposes and cannot be used to discover the identity of persons from whom the biological material was obtained (a ‘statistical database’). Thus, it is submitted that the CLFPA strictly regulates the use to which the profiles may be put.
The appellant submits that familial searching effectively creates ‘virtual profiles’ on the DNA database for relatives of persons legitimately on the database and, in that way, undermines the distinction the CLFPA seeks to draw between different categories of persons. Whilst the Act recognises that offenders and suspects have diminished rights of genetic privacy, that rationale does not apply to relatives of suspects or offenders. The appellant submits that if familial searching is permitted under the CLFPA, relatives of persons who are suspects or offenders, in effect, have less protections than those afforded to persons who volunteer forensic material and from whom consent is required before their DNA is put on the identity database.
The appellant submits that in the absence of express reference to familial searching by Parliament, it is not permitted under the CLFPA. Where there are clear restrictions on whose DNA may be obtained, what forensic material can be included on the DNA database and for what purpose, the CLFPA should not be construed as allowing ‘the effective inclusion in the database of persons who do not meet these restrictions.’ In the absence of express language to the contrary, the appellant submits that this Court should assume that Parliament did not intend the legislation to impinge on fundamental rights, namely the right to genetic privacy.
For the respondent, it is contended that familial searching does not involve an unlawful use of the DNA database. The respondent submits that s 45(2)(a) of the CLFPA expressly allows a ‘familial search’ in the sense that the technical forensic searching task undertaken in this case involved a comparison of DNA profiles lawfully stored on the database.
Consideration
This Court must begin with the words used by the section considered in their statutory context. A plain reading of s 45(2)(a) permits an authorised person to access information stored on the database for the purpose of comparing one profile stored on the database with another profile stored on the database. In the present case, the scientific task described as ‘familial searching’ involved the comparison of DNA profiles lawfully stored on the database. More specifically, the FSSA undertook numerous individual comparisons of DNA profiles in the suspects/offenders index and identified one potential male relative of the donor of the unknown male DNA profile taken from the crime scene sample JPH1.6.A.
Contrary to the appellant’s contentions, a plain reading of s 45(2)(a) which permits familial searching is also supported by the broader context, and purpose, of the CLFPA.
The legislative provisions, which provide for a DNA database and regulate the information which may be stored within the database and its use, are enacted in the context of a statutory scheme which envisages the storage of DNA profiles on a database for future use in connection with ongoing and future criminal investigations, and for admission into evidence.
Notwithstanding the express strictures within the CLFPA as to what will constitute an impermissible use of the database, it does not expressly preclude familial searching (in terms of the scientific processes which were undertaken in this case.) By contrast, for example, s 45(3)(a) provides that a person must not compare a DNA profile stored on the volunteers (limited purposes) index, with a DNA profile stored on another index, if the volunteer has not granted consent. There is no such restriction placed on the use of familial searching.
Further, s 50 of the CLFPA prohibits disclosure of information stored on the database unless the disclosure is necessary for a specified purpose or otherwise authorised by the section. The disclosure exceptions in s 50(1) align with the permissible use provisions in s 45(2). In particular, s 50(1)(a) permits disclosure where it is ‘necessary for criminal investigation purposes or a missing persons enquiry’, and complements s 45(2)(a) which authorises the disclosure of results of a database search to law enforcement for the purpose of criminal investigation. Thus, read together, ss 45 and 50 govern the permissible and impermissible uses of forensic material stored within the DNA database and support a plain reading of s 45(2)(a) to permit familial searching as it was conducted in this case.
In relation to the appellant’s submissions that familial searching (as it was conducted in this case) infringes a person’s right to genetic privacy such that, unless expressly provided, s 45(2)(a) should not be construed to permit familial searching, it is important to emphasise the limited reach of the actual processes undertaken. The familial searching conducted in this case did not reveal the appellant’s DNA profile, nor did it migrate his DNA profile into the database at all. The familial searching exercise only resulted in the identification of the appellant’s brother as a potential male relative of the contributor to the unknown male DNA profile extracted from the crime scene sample JPH1.6.A. It did not engage directly, or at all, with the appellant’s DNA profile. As much is borne out by the prosecutor’s concession at trial that the police, upon receipt of the second familial search report, did not have reasonable cause to suspect the appellant of having committed the offence; and once he declined to provide his DNA sample, they had to resort to other investigative techniques outside of conducting a forensic procedure (as defined in the CLFPA) to further their investigation.
It is a moot point whether, if the appellant had been included in the volunteers (limited purposes) index, familial testing may still have revealed that he was a relative of the appellant’s brother (without his consent) as, without more, that information would not reveal or yield any information about his DNA profile and would not infringe any right he may have had to genetic privacy.

In relation to the discretion of the trial Judge to comment on the parties’ respective cases, the appellant also relied on the authorities of R v Emes[78] and Pyliotis v The Queen.[79]
[78] [2019] SASCFC 75.
[79] [2020] VSCA 134.
In R v Emes, the trial Judge commented adversely on the appellant’s explanation for an incriminating text message. This Court ultimately found that while the trial Judge presented both prosecution and defence submissions on that critical issue, in a short summing up, he effectively presented a better address to the jury than the prosecutor had done in a way that ‘improperly skewed the balance in favour of the prosecution.’[80] For that reason, the appeal was allowed.
[80] R v Emes [2019] SASCFC 75 at [35] per Kelly J (with whom Nicholson and Hinton JJ agreed).
In Pyliotis v The Queen, the trial Judge made a series of comments responding to various submissions advanced by defence counsel. The Court of Criminal Appeal of Victoria held that the comments added force to the prosecution case and undermined the applicant’s defence. The Court considered that the comments were not necessary to restoring an imbalance of fairness between the prosecution and defence, nor to correct errors that might otherwise have adversely affected the jury’s capacity to decide the case fairly on the merits; and there was a real risk that the comments may have unfavourably influenced the jury’s consideration of the defence case. The appeal was allowed.[81]
[81] Pyliotis v The Queen [2020] VSCA 134 at [78]-[79] per Priest, Niall and T Forrest JJA.
With those general principles in mind, we turn to consider the question of whether the trial Judge adequately put the defence case and whether the trial miscarried as a result of an unbalanced summing up. In doing so, it is necessary to consider the summing up in its entirety in the context of the evidence led at trial and the issues in dispute.[82]
[82] McKell v The Queen (2019) 264 CLR 307 at [30] per Bell, Keane, Gordon and Edelman JJ; See also Roberts v The Queen (2022) 365 FLR 367.
As noted above, the ultimate issue for determination by the jury was whether the prosecution had proved that the appellant was the offender. The prosecution relied primarily on the blood and DNA deposition evidence. The appellant did not give or call any evidence at trial. The appellant’s case, at trial, consisted of a challenge through cross-examination of prosecution witnesses as to the accuracy and reliability of the blood and DNA deposition evidence, and a reliance on other aspects of the evidence adduced as part of the prosecution case. Accordingly, it was inevitable that the summing up would consist largely of a summary of the prosecution case.
As to the defence case on the blood and DNA deposition evidence, the trial Judge dealt with defence submissions in detail and made express reference to: the absence of modern safeguards for the collection and preservation of evidence; defence exhibits which were said to provide examples of procedures being inadequately observed (exhibits D13 and D15); videos of the crime scene examination which cast doubt on the vigour of police crime scene examination procedures (exhibits D1 and D3); the absence of accreditors checking the FSSA’s handling of this case and its mistakes in paperwork; and the absence of written records of procedures relating to DNA analysis in the FSSA’s case file.
The trial Judge also went on to give additional directions sought by defence counsel as to the blood DNA and deposition evidence.
In relation to the trial Judge’s rebuttal comments, summarised above, we are satisfied that the juxtaposition of the prosecution and defence positions on that topic was simply a means of drawing the jury’s attention to competing considerations and did not involve the trial Judge aligning himself with the prosecution case nor deprecating the defence case.
As to the evidence of M, the trial Judge reminded the jury of defence counsel’s submission that M was an ‘honestly mistaken witness’. The trial Judge addressed the jury as to M’s level of intoxication and, as requested by defence counsel, reminded the jury of defence counsel’s submission that her account of the conversation was affected by the fact of the accused’s arrest. The trial Judge also reminded the jury of defence counsel’s submission that the appellant’s account of the affair placed it at a time after his relationship with Ms Young had ended, and therefore after Mrs Poll was murdered.
As to the other evidence relied upon in the appellant’s defence, the trial Judge specifically referred to defence counsel’s submissions as to the unreliability of Ms Parsons’ evidence; highlighted the absence of injury to the appellant’s hand; referred to the absence of the appellant’s DNA under Mrs Poll’s fingernails; and, in dealing with the shoe impressions, noted that 40 per cent of the male population take a size nine shoe. A significant forensic disadvantage direction was given concerning the unavailability of the appellant’s work records due to the passage of time.
Having considered the trial record and the summing up as a whole, we are satisfied that it was not unbalanced, and the trial Judge adequately presented the defence case to the jury. We do not consider that the trial Judge’s comments, individually or cumulatively, were apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant’s guilt.
We grant permission on Ground 4A but dismiss both Grounds 4 and 4A.
Ground 5 – Directions as to the evidence of Debra Parsons and Dr Sara Jones
This complaint concerns the trial Judge’s directions as to the evidence of Ms Parsons and her description of a male she observed in the vicinity of the newsagency at around the time of Mrs Poll’s murder; and the evidence of Dr Jones as to the unidentified shoe impressions left at the crime scene. The trial Judge instructed the jury that both bodies of evidence were ‘consistent with’ the prosecution case. The appellant contends that his Honour did not make clear to the jury that the evidence did not directly implicate the appellant, and in the absence of a direction in those terms, there exists a risk that the jury approached the evidence as confirmatory of the appellant’s guilt.
In his summing up, after reciting a passage of the prosecution’s address in relation to the evidence of Ms Parsons, the trial Judge gave the following direction:
Ladies and gentlemen, the Crown here is of course conceding that you could not convict the accused on that basis, on the basis of that evidence of Ms Parsons alone; it is simply not enough, but the prosecution says if you are prepared to accept that the prosecution have established their major strand of the blood and DNA deposition evidence, then you can also take into account other strands of varying weight. And this particular strand shows that there was someone whose description given by Ms Parsons was consistent with having just committed a crime of this sort, consistent, it doesn’t have to be, but consistent and, secondly, consistent with the general appearance of the accused as he would have appeared at that time. It is not said to be strong by itself but it is just a matter you can bear in mind if you adopt the process that the Crown suggest you should.
In a similar way, the Crown point to the shoe print evidence, that the testing found that the shoe was in certain parameters which were equivalent to a size 9, male shoe. It is of course immediately disclosed to you that about 40% of the male population take a shoe size in that range so again it is consistent with the accused but of itself could never prove a case. It does, however, constitute even more confirmatory evidence that it was not Mr Poll, whose shoe size was seven to seven and a half. But, as I say, it is a matter you can take into account and give it what weight you consider it deserves.
Later in the summing up, after referring to defence counsel’s address as to the evidence of Ms Parsons, and when addressing the jury as to the defence case, his Honour said:
Well, that is the defence position on that. You do have to remember that she did have her headlights on, so it was not as though this was entirely dark. But, in any event, the question remains, how good were her observations, and do you accept that she is correctly reporting to you what she saw. You saw her in the witness box, you can weigh up her evidence. It is a matter for you.
It is the case that people can, some people can, have difficulties in making observations and describing and remembering the appearance of other persons. Is this lady, Ms Parsons, such a person or not? It is a matter for you. People have made mistakes, serious mistakes over the years, when purporting to identify a person as a person who committed a crime, and those mistakes have been later exposed.
And here, of course, no-one suggests that Ms Parsons has picked the accused out of a line-up of people, and she does not point to him in court and say ‘That’s him’. So you do not have any of those things. This is not a case where she purports to identify the accused as that person she saw. But, once again, as I say, it is no more than a minor strand in the prosecution case of consistency, rather than this is definitely the person, and so I will leave it at that.
It can be seen that the trial Judge instructed the jury that on one view of Ms Parsons’ evidence, and the shoe impression evidence, it was consistent with the prosecution case on the issue of identity. That is, the appearance of a male in the vicinity of the newsagency (purportedly the offender) was consistent with the appellant’s appearance at the time of the attack in April 1993, and the size of the unaccounted shoe impressions (inferentially worn by the offender) was consistent with the size of shoes worn by the appellant at the time of his arrest.
In support of this ground of appeal, the appellant relied on the authority of R v B and D.[83] In that matter, the appellants were charged with five counts of unlawful sexual intercourse involving the daughter of the appellant, B. The prosecution adduced medical evidence that the state of the complainant’s vagina and hymen were such that there could have been penile penetration. The appellant complained about the trial Judge’s direction to the jury that the medical evidence was ‘consistent’ with the history provided by the complainant. In allowing the appeal, King CJ said:[84]
It is literally true, of course, that what Dr Moody found was consistent with the history the girl gave and Dr Moody expressed that opinion. I think, however, that the account which his Honour gave of the evidence of Dr Moody in the summing up was inadequate to convey the true effect of her evidence to the jury. The expression “consistent with” is frequently used in ordinary conversation as synonymous with “confirmatory of”. The failure of the judge to make clear that Dr Moody’s evidence did not in any way implicate the appellants created the risk that the jury might understand the learned judge as conveying that they could regard Dr Moody’s evidence as tending to confirm the guilt of the appellants.
[83] (1993) 66 A Crim R 192.
[84] R v B and D (1993) 66 A Crim R 192 at 196 per King CJ.
In relation to the evidence of Ms Parsons, the appellant submits that, as in R v B and D, the true import of her evidence was that it was not inconsistent with the appellant being the offender; however, it could not positively implicate the appellant in the offence. The appellant contends that the trial Judge’s directions in relation to the evidence of Ms Parsons created the risk that the jury understood that it was permissible to embark upon a process of reasoning whereby the evidence implicated the appellant.
In relation to the shoe print evidence of Dr Jones, the prosecution relied upon the evidence that two unidentified shoe marks in the blood at the crime scene were of a size nine shoe, that being the optimal fit for the appellant at the time of the trial. There was no evidence which positively established what size shoe the appellant wore in 1993.
The appellant relied on Volpe v The Queen.[85] There, the appellant was charged with murder. A male body was located in a reserve and a number of shoe impressions were identified close to the body. Evidence was led of one such impression being part of a shoe’s heel and arch. Approximately a year after the deceased’s body was located, police seized a woman’s size 11 New Balance running shoe from the appellant’s house. There was evidence that the seized shoe could have produced the unidentified impression near the deceased’s body. The Court of Criminal Appeal of Victoria, in allowing the appeal, held that the shoe evidence, while relevant, was of slight probative value and should have been excluded. Justices Priest, Forrest and Weinberg said:[86]
Moreover, there was no satisfactory evidence about the size of the class of New Balance shoes sold in Victoria which could have left that impression.
…
At its highest, that evidence established no more than that a shoe with a similar – but not necessarily identical – sole to the shoe seized could have left the impression at marker 3…
[85] [2020] VSCA 268.
[86] Volpe v The Queen [2020] VSCA 268 at [72]-[73] per Priest, Forrest and Weinberg JJA.
Their Honours concluded:[87]
In our view there was a real prospect that the evidence might be used by the jury as proving more than it was capable of doing. By itself, the evidence could never have placed the applicant at the site where the body was dumped; yet, because of its importance to the prosecution case, it was relied upon to prove exactly that. At its highest, the evidence proved no more than that the applicant had access to a shoe that might have left an impression near where the body of the deceased was found, within a few hours of the body there being dumped, and thus that the applicant - were he wearing the shoe - could have dumped it. As we have said, it was a relevant piece of circumstantial evidence, but it was afflicted by substantial limitation.
Next, the risk that the jury would conclude from the impugned evidence that the applicant was the man who dumped the body was magnified by two things: first, the evidence being given a cloak of authenticity by Sergeant Kohlmann’s “expert” contribution to the overall shoeprint evidence; and, secondly, the misstatement by the judge in his charge as to how the prosecution put its case.
[87] Volpe v The Queen [2020] VSCA 268 at [74]-[75] per Priest, Forrest and Weinberg JJA.
In the present case, the appellant contends that the direction given by the trial Judge, which erroneously permitted the jury to use the shoe impression evidence as being consistent with the prosecution case, was highly prejudicial to the appellant’s fair trial; and the error was compounded by the trial Judge describing the evidence as ‘confirmatory’ in excluding Mrs Poll’s husband as the offender.
It is important to note at the outset that there was no challenge to the admissibility of the evidence of Ms Parsons or Dr Jones at trial, or on this appeal. Further, the evidence of Ms Parsons, and the shoe impression evidence, were minor strands of the circumstantial case against the appellant and were described in that manner by the prosecution, and indeed the trial Judge. Both bodies of evidence were capable of supporting the prosecution case as to identity, although individually or cumulatively they were not sufficient of themselves to prove identity. The prosecution case rested primarily on the blood and DNA deposition evidence.
In respect of the impugned directions as to Ms Parsons’ description of the male she saw in the vicinity of the newsagency as consistent with the appearance of the appellant, the trial Judge made plain that it did not constitute identification evidence; and it was not direct evidence that he committed the crime. Indeed, his Honour prefaced his directions as to both Ms Parsons’ evidence and the shoeprint evidence by instructing the jury that it was only if they were prepared to accept as proven the ‘major strand’ of the blood and DNA deposition evidence, that they could take into account the other strands of evidence of varying weight.
The authority of R v B and D does not stand for the proposition that it is improper or misleading for a trial judge, in the course of summing up the prosecution case, to use the term ‘consistent with’ in relation to strands of a circumstantial case which, of themselves, do not necessarily implicate an accused. The impugned direction in the case of R v B and D was considered erroneous because it failed to convey the true effect of the evidence; the direction suggested the medical evidence was consistent with the history provided by the complainant, when in fact the evidence was only consistent with a general allegation that penetration had occurred.[88]
[88] R v B and D (1993) 66 A Crim R 192 at 196 per King CJ.
Here, the matter is quite different. The trial Judge’s directions did not elevate the evidence of Ms Parsons or Dr Jones beyond what it could properly establish as part of the prosecution case. Both bodies of evidence were properly left to the jury as minor strands of a circumstantial case, which, when considered in conjunction with other evidence, were probative in proof of identity. As noted above, the trial Judge expressly instructed the jury that it was only if they were prepared to accept beyond reasonable doubt that the prosecution had established the blood and DNA deposition evidence, that they could then take into account the other strands of circumstantial evidence in proof of the identity of the appellant as the offender.
Further, as discussed earlier, the trial Judge outlined the limitations in the evidence of Ms Parsons. In relation to the unidentified shoe impressions, the trial Judge emphasised the limited weight to be afforded to the evidence by reminding the jury that 40 per cent of the male population take a shoe size in the range of size nine. As to his remarks that a shoe size nine is ‘confirmatory evidence’ that the offender was not Mr Poll, that remark was of little moment in circumstances where there was evidence that his shoes had been examined and excluded as having made the shoeprint impressions.
For those reasons, we are satisfied that the trial Judge’s directions were not erroneous and there was no risk that the jury approached this evidence as directly implicating the appellant.
We refuse permission to appeal on Ground 5.
Ground 6 – Expert evidence of Dr Ross James and Sergeant David Veldhoen
This ground of appeal relates to the expert evidence of Dr James and Sergeant Veldhoen in relation to the deposition of the appellant’s blood. The admissibility of the impugned evidence of Dr James and Sergeant Veldhoen was not challenged at trial.
The appellant complains that the admission of the evidence of Dr James, a pathologist, that the offender may have received a cut during the attack on Mrs Poll by his hand slipping onto the knife blade, was erroneous and resulted in a miscarriage of justice. The appellant contends that Dr James’ opinion was speculative given there was no evidence that the appellant had sustained an injury to either hand at the relevant time; indeed, the evidence was to the contrary.
On the prosecution case, the evidence of Dr James as to the offender having sustained a cut during the attack was significant; it linked the blood deposited at the crime scene with the appellant (by reason of the DNA results), to the knife attack on Mrs Poll. Sergeant Veldhoen gave evidence that a free-bleeding injury was responsible for the various deposits of blood at the crime scene.
Dr James conducted a post-mortem examination on Mrs Poll. At trial, he explained that there were 18 stab wounds near Mrs Poll’s backbone. He considered that the wounds were inflicted while Mrs Poll was face down on the floor. Six of the wounds were consistent with a knife having passed through Mrs Poll’s body into the floor. There were also defensive wounds to her hands and ‘scalping injuries.’ Dr James said that there was no reason to assume that more than one knife was involved. He thought the blade of the knife was very strong with an extremely sharp edge. He estimated the blade was at least 22cm in length and that it was not a kitchen knife, but rather, a hunting knife. Dr James noted that it was not possible to determine the movements of the offender and Mrs Poll during the attack with any accuracy; he agreed that a stabbing involves a dynamic situation.

Dr James explained that the offender’s hand may have been injured during the attack in the following way:
… the blade being very sharp, the assailant’s hand can slip down over the blade and receive a cut in that fashion. It is also possible, I suppose, if one wants to get involved in choreography, for the assailant to perhaps hold some hair whilst slashing the back of the scalp and in doing so might inadvertently cut his or her own hand. That’s speculation on my part.
Dr James was asked what factors might affect the circumstances in which the offender’s hand would slip onto the blade. He responded:
You’re drawing me out here. I suppose whether the blade comes to a sudden stop and a vigorous thrust to a blade that suddenly stops allows the hand to slip over the bloodstained handle and encroach on the sharp knife edge.
Dr James agreed blood could act as a lubricant making a slip more likely ‘given the number of injuries and how violent the soft tissue damage was, the blade and the handle would inevitably be covered with blood.’
Sergeant Veldhoen gave evidence that several of the blood stains were consistent with drip stains from a free-bleeding injury. A free-bleeding injury was described as one which expels blood, as opposed to blood remaining adhered to the surface. He explained that a cut that breached blood vessels was capable of causing a free-bleeding injury. He said that blood stains in the back office and on, or under, the interior door handle of the sole entry/exit door to the newsagency were consistent with having been deposited by a free-bleeding injury.
The prosecution urged the jury to draw the inference from the combined effect of the evidence of Dr James and Sergeant Veldhoen that the offender had sustained a cut in the course of, or in connection with carrying out the attack on Mrs Poll in the rear office, and then deposited blood in that office and on the internal door handle of the sole entry/exit door when fleeing the newsagency after the attack.
The appellant contends that the evidence of Dr James and Sergeant Veldhoen was not admissible as the evidence was purely speculative and without an evidentiary foundation. It was emphasised that both the appellant’s mother, Ms Richardson, and his girlfriend at the time, Ms Young, said that they observed no injuries on the appellant’s hands in April 1993.
The appellant contends that Dr James should not have been permitted to speculate on the possibility that the offender sustained a free-bleeding injury during the attack when there was no other evidence which would support that conclusion (as that was a matter directly relevant to a fact in issue).
In Straker v The Queen,[89] the accused was convicted of the murder of a homosexual male. He did not dispute that he caused the deceased’s death by striking him in the head with a hammer but raised the issue of provocation. The pathologist who conducted the post-mortem examination gave evidence as to the condition of the deceased’s anus and rectum, and the possible cause of that condition. He said that it was explicable on the basis that the deceased was a person who had regular anal intercourse and who had some form of anal interference, or intercourse, shortly before or after death. In allowing the appeal, the High Court held the evidence was inadmissible and prejudicial to the appellant. Justice Jacobs said:[90]
The real complaint of the appellant is that Dr James was permitted to speculate on a possibility of which there was no evidence of probability, namely, that shortly before or after the killing, a person, who could only be the accused, had played the active role in anal intercourse with the deceased. If there had been evidence of such anal intercourse after death, it would have been strong evidence against the accused in two ways. First, it would have suggested a motive for the killing, namely, necrophilia. Secondly, it would have rebutted the defence of provocation.
The question, therefore, is whether Dr James’ speculation on possibilities which had no basis of probability was admissible. I can see no basis upon which it was admissible. It is true that in many circumstances an expert witness is entitled to explain the steps by which he reaches his expert opinion. But he is not entitled to speculate on a possibility directly relevant to the issue or a fact in issue when the speculation is adverse to the accused person and when there is no evidence which would support a conclusion that the fact was established. … An expert may give evidence that a condition found by him is consistent with a certain cause, but, if the cause is in issue, such expert evidence is only admissible against an accused if there is other evidence to support a finding of that cause. The jury may be invited to draw inferences from the evidence but not to join an expert witness in speculation on possibilities adverse to the accused.
[89] (1977) 15 ALR 103.
[90] Straker v The Queen (1977) 15 ALR 103 at 114 per Jacobs J.
In R v Berry,[91] Redlich JA (with whom Buchanan and Kellam JJA agreed) explained that:[92]
an expert will not ordinarily be permitted to speculate as to inferences when there is no evidence that could support such an inference. Where there is such evidence, the expert may testify that such circumstances are consistent with such an explanation. Thus, an expert may be invited to consider whether a hypothesis is consistent with the known facts so long as the hypothesis is sought to be drawn from facts which may be established by the evidence and the assessment of such facts is within the witness’s expertise.
[91] (2007) 176 A Crim R 195.
[92] R v Berry (2007) 176 A Crim R 195 at [69] per Redlich JA (with whom Buchanan and Kellam JJA agreed) citing Straker v The Queen (1977) 15 ALR 103 at 108 per Barwick CJ, at 109 per Gibbs J, at 110 per Stephen J, at 114 per Jacobs J.
Justice Redlich also noted that the judgments in Straker v The Queen suggested that where an inference is adverse to the accused, the expert should only be permitted to express such an opinion where it is a probable inference from the known facts.[93]
[93] R v Berry (2007) 176 A Crim R 195 at footnote [45] per Redlich JA.
The broader principles that govern whether the opinion evidence of an expert is admissible at trial are well-established. As explained in R v Dastagir:[94]
The principles that govern whether the opinion evidence of an expert is admissible at trial can be reduced to two questions. First, whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This question of itself may be divided into two parts:
i.whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area; and
ii.whether the subject matter of the opinion forms part of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his or her opinion of assistance to the Court.
Second, whether the witness has acquired, by study or experience, sufficient knowledge of the subject to render his or her opinion of value in resolving the issues before the Court.
[94] (2013) 118 SASR 83 at [46] per Kourakis CJ, Vanstone and Stanley JJ citing R v Bonython (1984) 38 SASR 45 at 46-47 per King CJ.
We are satisfied that the evidence of Dr James as to the possibility of the offender having sustained a cut during the attack on Mrs Poll was not speculative but had an evidentiary foundation in the results of the post-mortem examination of Mrs Poll. More specifically, the evidentiary basis for his opinion as to the offender possibly having sustained a cut resulting in a free-bleeding injury was drawn from the following: the nature and the number of the injuries sustained by Mrs Poll; the size and nature of the weapon used during the attack; the likelihood that the weapon used would have become covered in blood; the fact that blood acts as a lubricant; and the presence of blood deposited throughout the store which were not attributable to Mrs Poll.
Moreover, Dr James’ evidence on this topic did not amount to mere speculation as to a possible explanation from an observed fact where there was no other evidence supporting the explanation. The other evidence referred to above was such that it was open for the jury to infer that it was likely or probable that the offender would have sustained a cut during the attack on Mrs Poll given the attack consisted of 18 stab wounds inflicted with a 22cm long knife to her back region with some of the wounds penetrating through her body to the floor.
Nor did the evidence of Dr James extend beyond his specialised knowledge or field of expertise. There was no challenge made to the expertise of Dr James as a forensic pathologist or to his evidence. It is well within the expertise of a forensic pathologist to comment on the likely mechanisms by which an injury may be inflicted.[95] The fact that Dr James, in formulating his opinion that the offender may have sustained a cut during the attack and as to the mechanisms by which this may have occurred, had regard to matters which were within the knowledge or experience of lay persons (such as the likelihood that the weapon used would have become covered in blood during the attack and that blood acts as a lubricant) did not mean that his opinion as a whole was not based on specialised knowledge or experience as a pathologist. As Gaudron J explained in Velevski v The Queen:[96]
The concept of “specialised knowledge” imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which “is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.” So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion.
(citations omitted)
[95] Velevski v The Queen (2002) 187 ALR 233 at [160] per Gummow and Callinan JJ.
[96] Velevski v The Queen (2002) 187 ALR 233 at [82] per Gaudron J.
As to the concession by Dr James of ‘speculation’ in respect of the likelihood of the offender sustaining a cut while inflicting the injuries to Mrs Poll’s scalp, we agree with the respondent’s submission that this was a comment which went to his relative confidence in expressing an opinion as to the mechanism of the ‘slashing injury’ to Mrs Poll’s scalp. Dr James was simply being careful not to overstate his evidence on this topic rather than engaging in ‘speculation.’
For those reasons, we are satisfied that Dr James’ opinion as to the likelihood of the offender having received a cut or free-bleeding injury during the attack on Mrs Poll was neither speculative nor inadmissible.
In relation to Sergeant Veldhoen’s evidence that the blood stains were consistent with drip stains from a free-bleeding injury, that evidence was within his established expertise as to blood pattern analysis and were matters on which the jury would not be able to form a sound judgment without assistance. There was unchallenged evidence at trial that blood pattern analysis is a discipline which is sufficiently organised or recognised as a specialised body of knowledge, or experience, to constitute expert evidence. There was also ample material to establish that Sergeant Veldhoen possessed sufficient knowledge and experience as to blood pattern analysis to provide an opinion as to his observations and characterisation of the blood stains, and the inferences to be drawn from them. That evidence was highly probative in explaining the mechanisms by which blood (not attributable to Mrs Poll) came to be deposited at various locations within the newsagency.
For those reasons, we are also satisfied that the evidence of Sergeant Veldhoen was admissible as expert evidence.
We refuse permission to appeal on Ground 6.
Orders
1.We refuse permission to appeal on Grounds 1, 2A, 5 and 6.
2.We grant permission to appeal on Grounds 3.2, 3.3, 3A and 4A but dismiss the appeal.