Wark v The State of Western Australia - [2023] WASCA 66

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WARK -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 66
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   19 & 20 MAY 2022
DELIVERED          :   2 MAY 2023
FILE NO/S:   CACR 41 of 2021
BETWEEN:   FRANCIS JOHN WARK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 62 of 2021
BETWEEN: FRANCIS JOHN WARK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HALL J
File Number            :   INS 370 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of manslaughter - Whether the verdict of guilty was unreasonable or cannot be supported having regard to the evidence - Whether the admission of evidence pursuant to s 31A of the Evidence Act 1906 (WA) at the trial occasioned a miscarriage of justice

Criminal law - Appeal against sentence - Appellant sentenced to 18 years' imprisonment with parole eligibility - Whether the sentence was manifestly excessive - Whether the sentence infringed the totality principle - Whether the trial judge erred in finding in his sentencing remarks that the appellant had used 'violence for the purpose of furthering a sexual objective' in relation to the complainant when how the complainant died was unknown and the circumstances leading up to her death were unknown

Legislation:

Criminal Code (WA), s 280 (repealed)
Evidence Act 1906 (WA), s 31A

Result:

CACR 62 of 2021: conviction appeal
Leave to appeal on grounds 1 and 2 granted
Appeal dismissed

CACR 41 of 2021: sentence appeal
Leave to appeal on grounds 1, 2 and 3 granted
Appeal dismissed

Category: B

Representation:

CACR 41 of 2021

Counsel:

Appellant	:	Mr D Grace KC & Mr D N Ryan
Respondent	:	Ms A L Forrester SC & Ms K C Cook

Solicitors:

Appellant	:	Chelmsford Legal
Respondent	:	Director of Public Prosecutions (WA)

CACR 62 of 2021

Counsel:

Appellant	:	Mr D Grace KC & Mr D N Ryan
Respondent	:	Ms A L Forrester SC & Ms K C Cook

Solicitors:

Appellant	:	Chelmsford Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Armstrong v The State of Western Australia [2013] WASCA 290
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419
Braham v The Queen (1994) 116 FLR 38
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Colledge v The State of Western Australia [2007] WASCA 211
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428
DKA v The State of Western Australia [2017] WASCA 44
Dodd v The State of Western Australia [2013] WASCA 80
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
Flessas v The State of Western Australia [2018] WASCA 210
Gaskell v The State of Western Australia [2018] WASCA 8
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Giglia v The State of Western Australia [2010] WASCA 9
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Harvey v The State of Western Australia [2015] WASCA 250
Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409
Hishmeh v The State of Western Australia [2012] WASCA 183
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
La Bianca v The State of Western Australia [2019] WASCA 105
Lilley v The State of Western Australia [2019] WASCA 164
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McAlpine v The State of Western Australia [2018] WASCA 195
McNamara v The State of Western Australia [2013] WASCA 63
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
Moore v The State of Western Australia [2019] WASCA 35
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Onekawa v The State of Western Australia [2012] WASCA 105
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
PES v The State of Western Australia [2014] WASCA 96
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56
R v Berry [2007] VSCA 202; (2007) 17 VR 153
R v Churchill [2000] WASCA 230
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Isaacs (1997) 41 NSWLR 374
R v Karger [2002] SASC 294; (2002) 83 SASR 135
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v PBB [2018] QCA 214
R v Rye [2007] VSCA 247; (2007) 178 A Crim R 345
R v Wark [2008] QCA 172
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
RH v The Queen [2014] NSWCCA 71; (2014) 241 A Crim R 1
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Roffey v The State of Western Australia [2007] WASCA 246
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Smith v The State of Western Australia [2010] WASCA 176
Stagno v The State of Western Australia [2015] WASCA 115
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81
The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v JHN [2021] WASCA 225
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Paolucci [2020] WASCA 188
The State of Western Australia v Walley [2008] WASCA 12
The State of Western Australia v Wark [No 2] [2018] WASC 18
Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
Tuite v The Queen [2015] VSCA 148; (2015) 49 VR 196
Vyater v The Queen [2020] VSCA 32
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Wicks v The Queen (1989) 3 WAR 372
Xie v The Queen [2021] NSWCCA 1; (2021) 386 ALR 371
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

Table of Contents

Conviction appeal: an overview of the circumstances surrounding Ms Dodd's disappearance

Conviction appeal: the appellant and his personal circumstances

Mr McConnell's vehicle

Mr McConnell's death and his written statements

The appellant's statements to the police on 3 and 5 August 1999 and on 27 November 2013 about his movements on and about 29 July 1999

Conviction appeal: the appellant's admissions pursuant to s 32 of the Evidence Act

Conviction appeal: overview of the State's case at the trial

Conviction appeal: overview of the appellant's case at the trial

Conviction appeal: ground 1

Conviction appeal: ground 1: the trial judge's directions in relation to the earring and Hair 13

Conviction appeal: ground 1: the evidence of alibi at the trial

Conviction appeal: ground 1: the evidence in relation to the purchase by Ms Dodd of the earrings

Conviction appeal: ground 1: the evidence of police and forensic witnesses in relation to the earring and continuity

Conviction appeal: ground 1: some fundamental concepts in relation to the DNA evidence concerning Hair 13

Conviction appeal: ground 1: some terms and expressions referred to in the DNA evidence concerning Hair 13

Conviction appeal: ground 1: the evidence of Hair 13: Ms Dodd's ancestry

Conviction appeal: ground 1: the evidence of Hair 13: the colour of Ms Dodd's hair

Conviction appeal: Ground 1: the evidence of Hair 13: Ms Horner's evidence

Conviction appeal: ground 1: the evidence of Hair 13: the DNA evidence of the expert witnesses

Conviction appeal: ground 1: the propensity evidence: Ms M's evidence

Conviction appeal: ground 1: the propensity evidence: the appellant's responsive evidence

Conviction appeal: ground 1: the trial judge's directions in relation to Ms M's evidence

Conviction appeal: ground 1: evidence of alibi: the appellent's submissions

Conviction appeal: ground 1: the evidence of the earring: the appellant's submissions

Conviction appeal: ground 1: continuity: the appellant's submissions

Conviction appeal: ground 1: the evidence of Hair 13: the appellant's submissions

Conviction appeal: ground 1: the propensity evidence: the appellant's submissions

Conviction appeal: ground 1: other evidence: the appellant's submissions

Conviction appeal: ground 1: conclusion: the appellant's submissions

Conviction appeal: ground 1: evidence of alibi: the State's submissions

Conviction appeal: ground 1: evidence of the earring: the State's submissions

Conviction appeal: ground 1: continuity: the State's submissions

Conviction appeal: ground 1: evidence of Hair 13: the State's submissions

Conviction appeal: ground 1: the propensity evidence: the State's submissions

Conviction appeal: ground 1: other evidence: the State's submissions

Conviction appeal: ground 1: conclusion: the State's submissions

Conviction appeal: ground 1: applicable legal principles

Conviction appeal: ground 1: its merits

Conviction appeal: ground 1: conclusion

Conviction appeal: ground 2

Conviction appeal: ground 2: the appellant's submissions

Conviction appeal: ground 2: the State's submissions

Conviction appeal: ground 2: its merits

Conviction appeal: ground 2: conclusion

Conviction appeal: the proviso

Conviction appeal: conclusion

Sentence appeal: the grounds of appeal

Sentence appeal: the trial judge's sentencing remarks

Sentence appeal: the organisation of the balance of these reasons

Sentence appeal: ground 3: the appellant's submissions

Sentence appeal: ground 3: the State's submissions

Sentence appeal: ground 3: its merits

Sentence appeal: ground 3: conclusion

Sentence appeal: ground 1: the appellant's submissions

Sentence appeal: ground 1: the State's submissions

Sentence appeal: ground 1: its merits

Sentence appeal: ground 1: conclusion

Sentence appeal: ground 2: the appellant's submissions

Sentence appeal: ground 2: the State's submissions

Sentence appeal: ground 2: its merits

Sentence appeal: ground 2: conclusion

Sentence appeal: conclusion

Annexure 1 – Map of Badgingarra (Exhibit 3)

Annexure 2 – Map of North West Road and surrounding roads (Exhibit 5)

Annexure 3 – Map annotated by David Stribley (Exhibit 63)

Annexure 4 – Map annotated by Norman Smith (Exhibit 70)

Annexure 5 – Photographs of Mr McConnell’s vehicle (Exhibit 38)

Annexure 6 – The appellant’s section 32 admissions (Exhibit 1)

JUDGMENT OF THE COURT:

On 17 December 2015, the appellant was charged with one count on an indictment which alleged that on or about Thursday 29 July 1999, at Badgingarra, the appellant wilfully murdered Hayley Marie Stephenson (also known as Hayley Marie Dodd), contrary to s 278 (as enacted at the material time but now repealed) of the Criminal Code (WA) (the Code).
It is convenient in these reasons to refer to the deceased as Ms Dodd.
On 22 January 2018, after a trial before Jenkins J alone without a jury, her Honour found that the appellant had unlawfully killed Ms Dodd and was guilty of murder, but not guilty of wilful murder. The appellant did not give evidence at the trial. Her Honour published written reasons for decision. See The State of Western Australia v Wark [No 2].[1] Her Honour sentenced the appellant to life imprisonment with a minimum non-parole period of 21 years.
[1] TheState of Western Australia v Wark [No 2] [2018] WASC 18.
The appellant appealed against his conviction on seven grounds.
On 21 February 2020, this Court (Buss P, Mazza and Beech JJA) allowed the appeal on the basis of ground 3, which alleged, in essence, that her Honour erred in fact, or in fact and law, resulting in a miscarriage of justice, by:
(a)erroneously taking into account evidence that the appellant had been convicted of serious offences that he had committed against a female hitchhiker (Ms M) in Queensland on 1 June 2007 in making an assessment of the honesty and reliability of his accounts to police on 3 and 5 August 1999 about his movements on 29 July 1999; and
(b)erroneously concluding that her Honour was 'not minded to accept' that the appellant had visited all of the businesses that he told police he had visited, or the times that he did 'certain things', in Moora on the morning of 29 July 1999, without 'independent proof' or 'independent evidence'.
See Wark v The State of Western Australia (the First Wark Appeal Decision).[2]
[2] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365.
The court held that the other grounds of appeal had not been made out.
The judgment of conviction was set aside and a new trial ordered on the charge of murder.
On 31 March 2021, after a new trial before Hall J and a jury, the appellant was found not guilty of murder, but guilty of the manslaughter of Ms Dodd, contrary to s 280 (as enacted at the material time but now repealed) of the Code.
On 13 April 2021, Hall J sentenced the appellant to 18 years' imprisonment with eligibility for parole. The sentence was backdated to 1 June 2019 to take account of time which the appellant had spent in custody solely in relation to Ms Dodd's unlawful killing.
The appellant has now appealed against his conviction for manslaughter and against the sentence imposed on him for that offence.
It is convenient in these reasons to refer to the retrial as the trial and to Hall J as the trial judge.
In the conviction appeal, the appellant relies on two grounds of appeal. Ground 1 alleges that the verdict of guilty upon which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. Ground 2 alleges that the admission into evidence at the appellant's trial, pursuant to s 31A of the Evidence Act 1906 (WA), that on 1 June 2007 the appellant had detained, assaulted and sexually assaulted a female hitchhiker (that is, Ms M) in Queensland occasioned a miscarriage of justice.
We would grant leave to appeal on each of the grounds in the conviction appeal. However, as we will explain, neither of the grounds has been made out. The conviction appeal must be dismissed.
In the sentence appeal, the appellant relies on three grounds of appeal. Ground 1 alleges that the sentence of 18 years' imprisonment was manifestly excessive. Ground 2 alleges that the sentence infringed the totality principle. Ground 3 alleges that his Honour erred in finding, at [71] of his sentencing reasons, that the appellant had used 'violence for the purpose of furthering a sexual objective', when how Ms Dodd died was unknown and the circumstances leading up to her death were unknown.
Leave to appeal should be granted on each of the grounds in the sentence appeal. However, as we will explain, none of the grounds has been made out. The sentence appeal must be dismissed.
It is convenient to consider the conviction appeal before turning to the sentence appeal.

Conviction appeal: an overview of the circumstances surrounding Ms Dodd's disappearance

In 1999 Ms Dodd, who was then aged 17, and her friend, Lisa Frederickson, who was then aged 21, made plans to travel in regional Western Australia.
Ms Dodd was about 152 cm in height and weighed about 40 kg. She appeared younger than her 17 years.
On 22 July 1999, Ms Dodd and Ms Frederickson left Mandurah. They hitchhiked to Rockingham. Ms Frederickson's former partner, Stuart Cutt, drove them to a location north of Perth. From that location, Ms Dodd and Ms Frederickson hitchhiked to Eneabba. They arrived in Eneabba on 22 July 1999. Next, Ms Dodd and Ms Frederickson travelled to Dongara.
On 27 July 1999, Ms Dodd and Ms Frederickson went to the Tree Frog Book & Crystal Shop (the Tree Frog shop) in Dongara. Ms Dodd purchased a pair of sterling silver metal earrings with a blue‑coloured stone in them. The earrings were in the design of the Ankh. The coloured stone was in the middle of the Ankh. The Ankh was attached to a hook‑shaped piece of metal which was designed to pass through a pierced ear.
On or about 27 July 1999, Ms Dodd told Ms Frederickson that she wanted to visit the Hammond family at their farm in Badgingarra. Stanley 'Keith' Hammond owned the farm (ts 3368). The farm was called Seldom Seen. It abutted North West Road. In October 1998, Ms Dodd had stayed at the farm with her younger sister, Raeanne, who was a friend of Mr Hammond's daughter, Kristal. Ms Dodd had told other people that she had enjoyed staying at the farm (ts 3102). She had also told other people that she wanted to see Kristal's older brother, Bradley Hammond, whom she had met while staying at the farm (ts 3142).
Keith Hammond died before the trial. His witness statements were read into evidence (ts 3368 ‑ 3376).
On 28 July 1999, Ms Dodd telephoned Keith Hammond and told him that she was planning to visit Seldom Seen farm on 29 or 30 July 1999 (ts 3368). Mr Hammond told Ms Dodd that he may not be home on 29 July 1999. He said that if she arrived at the farm before he returned, she should make herself at home. Ms Dodd did not tell Mr Hammond that she planned to hitchhike to the farm. He assumed that she had a car (ts 3376). Mr Hammond did not see Ms Dodd on 29 July 1999 and she did not arrive at Seldom Seen farm on that or any later date.
Bradley Hammond is Keith Hammond's son. At the material time, Bradley Hammond was a farm worker. He lived on Seldom Seen farm with his father. Olive Ward was, at the material time, a farm worker who resided on Seldom Seen farm. Both Bradley Hammond (ts 3289 ‑ 3316) and Ms Ward (ts 3359 ‑ 3367) gave evidence that they did not see Ms Dodd on 29 July 1999 and that she did not arrive at Seldom Seen farm on that or any later date.
On the morning of 29 July 1999, Ms Dodd woke and dressed before Ms Frederickson. Her clothing included a pair of dark blue jeans, brown hiking boots, a black singlet‑type top and a Dunlop jacket. During that morning, Ms Dodd separated from Ms Frederickson. According to Ms Frederickson, when they separated Ms Dodd was wearing, in addition to the clothing we have mentioned, numerous silver rings, a silver cross necklace with a figure of Jesus Christ and the Ankh earrings she had purchased from the Tree Frog shop (ts 3188, 3220).
Donald Spry and Margaret Johnson gave evidence at the trial. On the basis of their evidence, each of Mr Spry and Mrs Johnson had given Ms Dodd a lift in his or her motor vehicle on the morning of 29 July 1999.
Mr Spry, who was driving a truck and towing a trailer with an excavator on it, said he passed a girl, who was aged about 14, 800 m to 900 m south of Dongara. He stopped at the Ampol Roadhouse in Dongara. Shortly afterwards, the girl approached Mr Spry and asked if he was travelling to Perth. He told her that he was travelling to Perth and, at her request, agreed that she could ride in the truck to Badgingarra (ts 3346). Mr Spry described the girl as very tiny. She had very fair skin, almost black hair and weighed about 43 ‑ 47 kg. She carried a little black backpack and a road map. Mr Spry gave evidence that Ms Dodd approached him at about 8.00 am or 9.00 am (ts 3348). He then drove her to Badgingarra where he stopped and she alighted from his vehicle. Mr Spry said that the duration of the journey from Dongara to Badgingarra was about 1 hour 30 minutes or 1 hour 45 minutes (ts 3349).
Ms Dodd made a telephone call at 10.35 am from a public telephone box on the verge outside the Badgingarra Roadhouse. She telephoned a caravan park known as the Dongara Denison Strata Caravan Park. The duration of the call was 47 seconds. She spoke to a receptionist and left a message for Ms Frederickson. At 10.38 am, Ms Dodd purchased a bottle of water and a packet of potato chips at the Roadhouse.

On the morning of 29 July 1999, Mrs Johnson was driving a bronze coloured Holden Commodore sedan from Badgingarra to her workplace at Badgingarra Research Station after having collected mail. Mrs Johnson said she saw a girl walking on the north side of North West Road. The girl was little and slender with dark hair which fell just below her shoulders. She carried a khaki coloured knapsack, a map and a water bottle. The girl was not hitchhiking. However, Mrs Johnson stopped her vehicle and asked the girl where she was going. The girl said she was going to Moora. Mrs Johnson told the girl that she could not take her to Moora, but she could drive her further along North West Road. The girl accepted the offer and got into Mrs Johnson's vehicle (ts 3414). The girl alighted from Mrs Johnson's vehicle near the intersection of North West Road and Winjardie Road. Mrs Johnson saw the girl crossing North West Road to the south side of that road.
After Ms Dodd alighted from Mrs Johnson's vehicle, a number of people who were travelling in motor vehicles saw a girl walking along North West Road in the direction of Seldom Seen farm. Those people included Mark and Fiona Weaver, Laurie Giles, Donald Cheek, Timothy Jankowski, David Skipworth, Carl Moltoni, Stephen Koeberle and Kim and Norman Smith.
David Stribley gave evidence to the effect that, shortly after 11.30 am on 29 July 1999, he saw a girl while he was driving on North West Road. The girl was about 9.6 km from Badgingarra and about 12 km from Seldom Seen farm. The point at which Mr Stribley saw the girl was, at the time of the trial but not on 29 July 1999, marked with a distance marker that was referred to at the trial as the 961 marker. On the State's case, the girl seen by Mr Stribley was Ms Dodd, and that was the last occasion on which Ms Dodd was seen alive by anyone apart from the person who picked her up and then killed her.
The 961 marker is 48.7 km from Moora via North West Road.
Attached to these reasons and marked:
(a)'Annexure 1' is a map of Badgingarra that was tendered at the trial and marked Exhibit 3;
(b)'Annexure 2' is a map of North West Road and other roads between Badgingarra and Moora that was tendered at the trial and marked Exhibit 5;
(c)'Annexure 3' is a map depicting, amongst other things, the location of the 961 marker and farms abutting North West Road that was annotated by Mr Stribley and tendered at the trial and marked Exhibit 63; and
(d)'Annexure 4' is a map depicting, amongst other things, the Badgingarra golf course and that was annotated by Norman Smith and tendered at the trial and marked Exhibit 70.
Ms Dodd's mother, Margaret Dodd, gave evidence that she last saw Ms Dodd on the evening of 22 July 1999 (ts 3090). Margaret Dodd received telephone calls from Ms Dodd on 22, 24, 25 and 28 July 1999 (ts 3103 ‑ 3104, 3106 ‑ 3108). Ms Dodd told Margaret Dodd that she had hitchhiked from Eneabba to Dongara (ts 3103). Margaret Dodd received a postcard dated 26 July 1999 from Ms Dodd, before Ms Dodd disappeared (ts 3110 ‑ 3111). Ms Dodd's sister, Raeanne Dodd, received a birthday card from Ms Dodd, before Ms Dodd disappeared (ts 3111).
Detective Senior Constable Debbie Chapman was involved in the police investigation into Ms Dodd's disappearance. She carried out a proof of life enquiry (ts 5231). Detective Senior Constable Chapman made enquiries of Medicare, the Pharmaceutical Benefits Scheme, Centrelink, the Department of Foreign Affairs and Trade, the Department of Immigration and Border Control, the Department of Human Services, the Australian Taxation Office, the National Tenancy Database, the Department of Transport and a number of banks (including Police and Nurses Bank, Westpac, the National Australia Bank, the Commonwealth Bank, Citibank, the ANZ Bank, Bankwest and the Bank of Queensland) to ascertain whether those institutions or agencies had any records of any dealings with or transactions involving Ms Dodd after 29 July 1999. Detective Senior Constable Chapman's enquiries did not reveal any dealings or transactions relating to Ms Dodd after that date. For example, the Department of Human Services confirmed that Ms Dodd had not received a payment from the Department since July 1999 and the Australian Taxation Office confirmed that the last income tax returns for Ms Dodd were lodged in 1998 and 1999 (before 29 July 1999) (ts 5233 ‑ 5236).
Margaret Dodd and other family members gave evidence to the effect that it would not have been in character for Ms Dodd to have voluntarily disappeared and to have voluntarily ceased contact with her family.

Conviction appeal: the appellant and his personal circumstances

The appellant was born on 21 February 1956. In July 1999, he was aged 43.
In July 1999, the appellant owned and lived in a simple, basic house on Lot 10 North West Road, Badgingarra. He had lived there for about 15 years. There was a tin shed at the rear of the home, which was large enough to accommodate a vehicle. The home and the shed were surrounded by scrub. The northern side of the lot was bounded by North West Road. The western side was bounded by McNamara Road. On the other sides there was scrub and sparse bush.
At all material times, the appellant was single. However, he had a boarder, John McConnell. The appellant worked each Monday, Wednesday and Friday as a gardener at Badgingarra Primary School. The school was located on McNamara Road, a short distance from the appellant's home.
The appellant's home was 7.6 km south east of the Badgingarra Roadhouse. The Roadhouse was close to the corner of Meagher Drive and Brand Highway. The appellant's home was 50.7 km from Moora via North West Road. Moora has a shopping area on both sides of a railway line.

Mr McConnell's vehicle

In December 1998, the appellant purchased a white 1973 Holden HQ utility vehicle (Mr McConnell's vehicle). In June 1999, the appellant sold the vehicle to Mr McConnell. However, the appellant continued to use the vehicle to travel between his home and Moora. The appellant regularly drove to and from Moora each Thursday. Attached to these reasons and marked 'Annexure 5' are photographs of Mr McConnell's vehicle that were tendered at the trial and marked Exhibit 38.
At the material time, Craig Keals was a Detective Senior Constable with the Western Australian Police. He retired in 2018. Mr Keals gave evidence that on 5 August 1999 he obtained an authority from Mr McConnell to seize Mr McConnell's vehicle (ts 3639 ‑ 3641). On 5 August 1999, Constable Aaron Cleaver drove Mr McConnell's vehicle from a farming property in the vicinity of Badgingarra to the Moora Police Station and then to the St John's Ambulance depot in Moora (ts 3641 ‑ 3642). Mr Keals followed Mr McConnell's vehicle in a police vehicle (ts 3642).
Constable Cleaver (who was a Sergeant at Kiara Police Station at the time of the trial) gave evidence confirming that on 5 August 1999 he drove Mr McConnell's vehicle to Moora. He and Mr Keals secured Mr McConnell's vehicle in a shed at Moora that was owned by St John's Ambulance (ts 3647 ‑ 3648). Constable Cleaver said that he drove Mr McConnell's vehicle to Moora without incident (ts 3648). Constable Cleaver said in cross‑examination that he had no recollection of the indicator lever being missing from Mr McConnell's vehicle when he drove the vehicle to Moora. Constable Cleaver accepted that when he drove the vehicle to Moora he had to make turns at various points in the road. However, he maintained that he was unable to recall 'one way or the other' whether he used the indicator lever in making the turns (ts 3653 ‑ 3654).

Mr McConnell's death and his written statements

Mr McConnell died on about 10 January 2013 at the age of 59.
At the trial, the prosecutor read into evidence two written statements made by Mr McConnell, one dated 4 August 1999 and the other 11 August 1999.
Mr McConnell's statement dated 4 August 1999 states, relevantly (ts 4798 ‑ 4803):
I am 46 years old, born on 29 January '53. I live at Lot 10, North West Road, Badgingarra. My occupation is shearer. I'm currently working for Terry Jones doing some sheep husbandry work. I've been living in Badgingarra since about 1 June 1999. I am boarding at this address with [the appellant]. It is his property.
[The appellant] works at the Badgingarra Primary School as the part-time gardener. I have known [the appellant] for about 16 years. And because I have only recently come out of prison, I had nowhere to live or work. He said I could stay with him until I got on my feet.
I'm divorced from my wife. She lives in Jurien. We have been divorced approximately five years.
I have a room at [the appellant's] place and all my belongings are kept in a caravan which is at the rear of the house.
I have a white HQ Holden ute, registered number DN-735. I bought the ute just after I was released from prison. The ute is roadworthy and licensed and I use it to drive to work most mornings.
Over the past week I have been doing mulesing with Terry and another young bloke who also works for Terry. His name is Brad Hammond. He lives on North West Road on a farm called Seldom Seen, which is about 10 kilometres from me. Brad has only recently got his car back from Moora Wreckers. He had a new motor put in it. It is a green HZ Holden sedan, rego 1000-DN. I actually know Brad's father quite well through both of us having gone through family separations.
I started working for Terry not long after I came out of prison. I came out of prison on 17 May 1999. I was in for indecent dealings, supposedly against my daughter and niece. It was in the middle of June 1999 that I started working for Terry.
On Monday, 26 July 1999, I went to work with Terry and Brad. I'm pretty sure I drove to Badgingarra Roadhouse in my ute then Terry picked us up and we went to the Chamberlains'[(?)] property which is north of Badgingarra on the Brand Highway.
The normal arrangements on the mornings we go to work, is that Brad will drive to my place and we either drive to the roadhouse to meet Terry in my ute or Brad's car. There are some times that Terry will pick us up at the telephone exchange, which is about 300 to 400 metres from the house. He picks us up from there as [the appellant] doesn't like us being picked up from the backyard of the house as he gets woken up.
We leave to start work at around 6 or 6.30 am.
When we got to Chamberlains it was wet. I think we did a small mob of sheep, but it was too wet so we packed up for the day. We left all the gear there and we went home.
On Tuesday, 27 July 1999, we went back out to Chamberlains and worked the whole day. Our finish times vary each day depending on the sheep numbers, weather and how far we have to travel.
On Wednesday 28 July 1999, Terry turned up at my place around 6.30 am. It was raining and he told me to ring Brad to stop him from coming to work. I rang Brad and spoke to him. Terry and myself then drove to the Wilkinsons' property on Dewar Road which is north of Badgingarra. We set up the cradle, then we came back and Terry dropped me off at home about two hours later. I remained at home for the rest of the day.
I think I did some work on the starter motor on the ute, sharpened my tools and some housework. [The appellant] was at home. He may have borrowed my ute to go into town, but I'm not sure. [The appellant] has been using my ute as he only has [his] motorbike. His car was wrecked about a month ago in an accident.
I also have two other HQ utes which are unregistered and I use them for parts and this is where I was getting parts for the starter motor from. I can't remember if I went to the tavern this Wednesday night.
The next day Thursday 29 July 1999, Terry came and picked myself and Brad up from the telephone exchange. We went out to the Wilkinsons and were there for the whole day from about 6.30 am to about 5.30 pm. We remained at this property having our lunch there. We always pack our own lunches.
To get to Wilkinsons' property after leaving my place we travelled up Winjardi Road heading north, then east on Watheroo West Road, then north on Dewar Road. To come home, we travelled the same way.
I don't remember seeing any other vehicles in the morning and don't remember seeing any others when we came home. On Friday 30 July 1999 at about 6 or 6.30 am, myself and Brad got picked up by Terry and we went out to Wilkinsons' property, but this time it was their property on Watheroo West Road.
The only vehicle I can remember seeing is the school bus and that was in the afternoon. We remained at this Wilkinsons' property mulesing until about midday, then we moved onto the Holmes' property which is on Green Head Road I think.
We finished for the day at the Holmes' property and got dropped off at home. It was late, about 6.30 or 7 pm. I didn't go out anywhere on Friday night, just stayed home listening to music. I don't watch TV because we don't have reception. The only time I watch TV is when [the appellant] puts a video on.
Every Thursday I know that [the appellant] uses my ute to go into Moora to take back the videos he has hired for the week and get some others. He gets the videos from Checkpoint Videos in Moora.
On Saturday 31 July 1999, I went to work. I can't remember if I went to the roadhouse in my ute or in Brad's car, but remember being picked up at the roadhouse early by Terry. [It] would have been about quarter-past 6. We went back to Holmes's property and did a whole day's work and got home late again, around 6.30 or 7 pm.
On Sunday 1 August 1999, it was a day off and I drove over to Jurien in my ute to see my boys. My sons are 16 and 14 years old. Their names are Nathan and Phillip.
I'm not supposed to visit my children because of the court order, but Nathan had [rung] me on Saturday night wanting me to bring him a motorbike over to him which I did. I met the boys down at the beach in Jurien near the changerooms and car park.
I stayed with my sons for about an hour at the beach, then I left and went to my step-brother's farm just out of Jurien. His farm is on Whitfield Street. I collected some engine parts, gearbox, barbeque table and chairs, pushbike and tyres and took these back to [the appellant's] place and put them in the garage.
After this, I went down to the Badgingarra Tavern. It was about 4 pm. When I got to the tavern I was the only person in the bar, but later on around 6 pm about four or five people turned up. I didn't talk to anyone. I just sat at the bar by myself. While there, someone said they wanted to hear the news and the TV was turned on and this person said something about he wanted to see the news as a girl had gone missing at Badgingarra. A short, brief mention was made on the news about this missing girl.
I can't remember much about it other than it said that she was dropped off at Badgingarra. The only other news I heard about this missing girl was something I'd heard on the radio a day or two before.
I went back home to [the appellant's] after the news had finished and I got a phone call from Terry saying there was no work on Monday. Then later on, Ian Griffiths from Regans Ford area rang and said he wanted some crutching down. I told him I could do it for him and I loaded my ute up and went to Regans Ford to Ian's place and camped the night in a caravan I have on his property.
I did the crutching on Monday and came back to Badgingarra around 8 pm. On Tuesday 27 July 1999 when I was back at home doing things around the house, [the appellant] mentioned something to me about wanting to use the ute on Thursday which was normal. He said something about going to Perth to go to a party that was on the weekend. He didn't say when he was going to Perth. I remember when I got home on Thursday evening it was still light. I noticed that the ute was in the shed and the house was locked.
Because the house was locked, I knew he had gone to Perth. It was unusual for the ute to be in the shed after [the appellant] has used it as he usually just parks it wherever. I immediately thought he may have damaged it when he went into Moora, so I went over and had a look at it. I noticed that the indicator lever had been broken off and was lying on the driver's side floor.
I went inside and there was a note from [the appellant] on the kitchen table asking me to separate the meat. I didn't really understand what he meant and I looked in the freezer and saw a whole heap of bulk meat just sitting there. That's when I realised he wanted me to break up the sausages and chops into smaller packages. The bundle of meat was cold, but it wasn't frozen. It was all in three, white plastic bags.
I didn't really know when [the appellant] was coming home, but in the past when he has gone to Perth he has come back on the Sunday night. Since I have been staying at [the appellant's], he has gone down to Perth twice before.
I think it was Monday night, 2 August 1999 after I had got back from Regans Ford, [the appellant] rang and told me that some stupid bitch had pulled out in front of him and had wiped his bike off. He told me he was in RPH with a broken leg and big toe. I asked him about his dog as I knew the dog travels with him, sitting on the fuel tank. He said that the dog was all right and had only got a graze on the nose. His motorbike is a black Moto Guzzi.
[The appellant] rang again on Tuesday night, 3 August 1999 and said he was still in hospital. I told him I was going to a party in Perth on Saturday and he asked if I could give him a lift back to Badgingarra. We didn't talk about anything else. I don't know where the accident was. In fact, I haven't asked.
On Thursdays, it is almost a ritual for [the appellant] to go into Moora to swap the videos and do some shopping. As far as I know, there is no set time that he goes, but from the time I've been living with him it would be more often than not for him to go into Moora around mid-morning.
I know this because he goes to the Badgingarra Post Office first and that opens at 9 am. He collects the mail, goes back home to drop it off, packs the videos, rewinds them and heads off to Moora. He then spends some time in Moora and goes to the Moora Hotel and has a drink and usually comes home about 2 or 3 pm.
I have gone with him in the past only once on a Thursday and this is what we did. The only other time I've gone into Moora with him was on a Saturday and this was after he had smashed his car. We tried to retrieve it from the side of the road, but we couldn't as it needed a tow truck.
This Saturday was the middle of June 1999 and it was only just after he had relicensed his car which was a Sigma station wagon, a yellow colour. This car was crashed on the Dandaragan Moora Road.
I definitely have not seen a young girl hitchhiking around Badgingarra over the past week. When I am at work with Terry and Brad, we don't have time to talk much as we are too busy and it's noisy with the lambs bleating and I have enough difficulty listening to conversations while I'm working as I am partially deaf.
On … the day that [the appellant] went to Perth I stayed home all night. [The appellant] didn't ring and I didn't get any phone calls or visitors.
[The appellant] is trying to sell the house and the two blocks of land, the one the house is on and the one the shed is on. I have been doing some work around the yard to tidy things up. I have been raking up the dead grass and leaves and rubbish around the house and have been doing some burning of the rubbish I have raked up.
Mr McConnell's statement dated 11 August 1999 states, relevantly (ts 4804):
I am a 46 year old shearer who lives at lot 10 North West Road, Badgingarra. I own a white 1973 Holden ute. I have owned it for about two months. For about one month, it has been backfiring when I take my foot off the throttle. The backfiring has been getting worse and the muffler has a big hole in it, about as big as a tennis ball. When my ute backfired, it was very loud.
On Tuesday 10 August 1999, I took the old muffler off and replaced it with a new one I bought from Badgy Motors. I also have bought another motor to put in the ute when I have time. When the ute is hot, it backfires about five times and used to sound twice as loud as a shotgun when it was backfiring.

The appellant's statements to the police on 3 and 5 August 1999 and on 27 November 2013 about his movements on and about 29 July 1999

On 3 August 1999, the appellant gave a written statement to police about his movements on and about 29 July 1999. The appellant gave the statement voluntarily. At the time he was not a suspect. In the statement, the appellant said:
On Thursday, 29 July 1999, I was at home. I live with John McConnell, and I had friends staying as well. Their names are Paul and Catherine. I don't know their surnames but I have known them for a couple of years. I call Paul, 'Harley', and Catherine, 'Cat'.
Paul and Catherine were going back to Perth and Paul was going to have a party at his house on the Saturday night. I was planning to travel with them in the morning. I don't wear a watch but I got up about 8 am. Paul and Catherine were already up. John had already gone to work. …
I didn't see John at all this day.
…
Paul and Catherine had been staying with us since Tuesday afternoon and had planned to go back to Perth on Wednesday. They stayed the extra night, because it was raining on the Wednesday. I didn't travel to Perth with them that morning, because our food supplies wouldn't have lasted John until I got back on the Sunday. I decided to go into town and get supplies before leaving. When I say 'town', I mean Moora.
I had breakfast, and I showered. I think I had toast, but I'm not sure.
Paul and Catherine left first, before 9 am. They both ride motorbikes.
… I planned to meet them at their house, in Beaconsfield, in the afternoon. I hadn't been there before, which is why I wanted to ride with them.
I left home about 9.30 am and drove John's white Holden HQ ute into Moora. It's about a 50 kilometre drive and takes me just over half an hour to get there. It wouldn't take more than 45 minutes. The car doesn't do more than 80 kilometres an hour.
I drove down North West Road to Dandaragan Road. I [turned] left and [drove] into Moora.
I don't remember seeing anybody hitchhiking at this time. If I did see a hitchhiker, I would stop and give them a lift. I have hitched before and know what it's like to be stuck.
When I got to Moora I withdrew my pay of $496 from the Bankwest branch. This would have taken 10 minutes at the most. I returned 10 weekly videos at the video store and hired another 10. I spent some time looking for something I haven't seen. I can't remember what I got out. I would have been there 15 or 20 minutes.
I went to the post office and paid $80 for a postal order to pay a fine to the Ministry of Justice. I still have the money order. It is signed by a B. Brown, and it is numbered 5529417876.
I also got a tax pack from the post office. I think it was the last one, because I had to go to the newsagency to get a second one for John. I don't think I bought anything from the newsagency. I wasn't there long.
I then went back to the car to drive to the supermarket and the butchers. They're both across the railway line.
I stopped off at the bakery and bought a couple of pies for lunch. I'm not sure what time it was. This was the last thing I did before leaving town. I'm pretty sure it was after 12 pm. There were a few people in the bakery.
Before the bakery, I went to the supermarket and the butcher.
The supermarket is a Supa Valu, and I got basic stores like bread, veggies, and canned goods. I try and buy enough to last about two weeks. I would spend about $150.
I then went to the butchers next door and bought about $50 worth of meat, again, to last about two weeks. I know the butcher as Darren. I would have had a yarn to him about something. I can't remember what.
I don't know how long this shopping took me.
I then went to drive out of town and stopped off at the bakery, as I've said.
I got home around 1 pm.
I drove the same route home, and I can't remember seeing any hitchhikers.
If I had have seen a young girl hitchhiking, I would remember her for sure. I would have stopped to find out where she was going. You don't see many people hitchhiking down those roads, especially young girls.
I did not see or pick up any hitchhiker on this day.
I unpacked the supplies when I got home, and I left a note for John to repack the meat. I had just put it all in the freezer.
I was in a bit of a rush, because I wanted to get going.
I packed my saddlebag and rode my motorcycle to the Badgingarra Roadhouse. I fuelled up the bike and left for Perth.
The time would have been about 1.30 pm.
I hadn't packed any pants or undies because I was going to buy some in Perth. In the saddlebag were some tools for the bike, a towel, jumper, and a shirt. I forgot to pack any toiletries.
When I bought the fuel, I paid Ian McCooke my outstanding bill for about $20. He should have it recorded in the accounts book. I remember it's number 13.
… Leaving for Perth, I turned onto the Brand Highway.
Just as I was pulling out of the roadhouse, I saw Keith Skelley pulling in.
I rode my motorbike, which is a Moto Guzzi, registration DN2527.
I don't remember seeing any hitchhikers on the Brand Highway.
I wouldn't have been able to give anyone a lift, because the bike only has one seat anyway.
I came into Perth via West Swan, and took the Roe Highway to Albany Highway. I then turned onto Nicholson Road.
While I was riding down Nicholson Road, a car turned in front of me and crashed.
I was taken to Royal Perth Hospital by ambulance. I had a very badly injured right leg and injuries to my right hand and face.
I was admitted to hospital and was released on Sunday, 1 August 1999.
I heard about the missing girl near Moora on the Saturday night's news while I was in hospital.
I have been staying with Paul and Catherine since I got out. I'm on crutches and will be unable to work for about eight weeks.
I have lived at my house, in Badgingarra, for about 15 years.
John has lived with me since May or June this year. He just got out of jail for indecent dealing.
He has told me that this was on his daughter and niece when he took them skinny dipping.
I have known John for a couple of years, and he told me this before he went into jail.
He was in jail for two years. I wrote to him while he was in jail to let him know how things were going and to keep in touch.
I have spoken to John a few times since the accident. I mentioned the missing girl to him, and he told me that the police were everywhere. He mentioned that he had noticed tyre tracks on the property. He said it might have been the police.
We keep any eye out for tracks so we notice if anything has been stolen, or we've been visited. I've had things stolen before.
Living with Paul and Catherine, we have talked about the missing girl and that the police would want to speak to us, because we were in town on the Thursday.
On Monday morning, I rang Fremantle detectives and gave my name. They said they would forward it on to missing persons.
On Monday night, I tried ringing Moora Police, but I couldn't get through. I then rang Crime Stoppers.
On 5 August 1999, the appellant signed a typewritten version of the statement he gave to police on 3 August 1999 with a few additions. In the signed statement the appellant gave the following information about Mr McConnell's vehicle:
The ute is parked in the rear shed. It's the only car parked in there. It has a black bull bar with no spotlights and is generally clean other than the dust from the gravel drive way. There is no damage to the car that I know of. It has a bucket seat with a multi‑coloured seat cover.
I only drive it about once a week or a fortnight. I usually only drive the car to the pub or to get the groceries. I normally ride my motorbike around.
On 5 August 1999, the appellant added that Mr McConnell's vehicle overheated if it was driven in excess of 80 km per hour.
On 5 August 1999, the appellant also added that on 29 July 1999 he spoke to Graeme Ellis at the front of the Australia Post shop in Moora. The appellant said:
[Mr Ellis] was sitting in his new four‑wheel drive. His wife had gone into the post office and we talked until she came out. I can't remember what we talked about. He had been to the doctor's about his sore back.
On 5 August 1999, the appellant also added that when he returned from Moora to his home on 29 July 1999 he parked Mr McConnell's vehicle 'around the back of the house and unpacked the supplies' and he 'then parked the car in the shed'.
On 5 August 1999, the appellant also added information as to his future intentions, as follows:
My house [in Badgingarra] is a two‑bedroom cottage.
I've had a for sale ad in The Sandpaper for the property. The Sandpaper is the local paper. I've only just got the phone on and have recently been advertising in the Saturday West Australian and The Sunday Times.
I've described my place as a two‑bedroom cottage on a treed block.
I'm not in any hurry to sell, but I plan to travel east on my bike.
Before 29 July 1999, the appellant's house was for sale and he had told other people of his plans to sell the house and move to Queensland.
In about late 1999, the appellant sold his house and in about late 2000 he moved to Queensland.
On 26 November 2007, the appellant was convicted, on his pleas of guilty in the District Court of Queensland, of a number of offences committed against Ms M in Queensland. The offences included one count of assault occasioning bodily harm whilst armed, one count of assault with intent to rape, one count of deprivation of liberty, five counts of rape and five counts of sexual assault. Those offences were committed over several hours on 2 June 2007 (commencing shortly after midnight on 1 June 2007). Ms M gave evidence as a State witness at the trial in relation to Ms Dodd. Evidence of the appellant's offending against Ms M was admitted at the trial as propensity evidence pursuant to s 31A of the Evidence Act.
On 27 November 2013, the appellant participated in an electronic record of interview (EROI) with police. During the EROI, police put to the appellant his previous statements made on 3 and 5 August 1999. The appellant told the police on 27 November 2013 that he could not remember the details of his movements on 29 July 1999. However, he confirmed substantially his previous statements.

Conviction appeal: the appellant's admissions pursuant to s 32 of the Evidence Act

At the trial, the appellant made a number of admissions, pursuant to s 32 of the Evidence Act, including the following:
(a)On 29 July 1999, between 9.30 am and 1.30 pm, the appellant was in possession of Mr McConnell's vehicle.
(b)On 29 July 1999, the appellant went to the Moora Post Office. It was recorded at the Post Office that at 10.35 am the appellant obtained a money order in the amount of $82.60.
(c)On 29 July 1999, the appellant attended the Badgingarra Roadhouse where at 1.36 pm he paid an account in the amount of $14.40.
(d)The appellant's nuclear DNA profile was as set out in an annexure to the document recording his admissions pursuant to s 32.
(e)On 29 July 1999, at 10.38 am, Ms Dodd purchased a packet of chips and a bottle of water at the Badgingarra Roadhouse.
(f)A hair (referred to at the trial as Hair 13) was located in material vacuumed by police on 6 August 1999 from the passenger footwell of Mr McConnell's vehicle.
The appellant also made admissions, pursuant to s 32 of the Evidence Act, as to the distance between a number of geographic locations of relevance at the trial.
The appellant's admissions were set out in a document which is attached to these reasons and marked 'Annexure 6'.

Conviction appeal: overview of the State's case at the trial

The State's case at the trial was circumstantial.
The State alleged that the appellant had the opportunity to abduct and kill Ms Dodd.
The State sought to prove beyond reasonable doubt that the appellant had abducted and killed Ms Dodd:
(a)by negating the appellant's alibi that at the relevant time he was not in the vicinity of the place where Ms Dodd was last seen because he was in Moora or had just begun the journey from Moora to his home on North West Road;
(b)by establishing, on the whole of the evidence, that an earring and a hair (that is, Hair 13) found upon forensic examination of the front seat cover of Mr McConnell's vehicle and the passenger footwell of the vehicle respectively belonged to Ms Dodd; and
(c)by asserting that propensity evidence of the appellant's abduction, violent assault and rape of Ms M and a demand for an earring from her (Ms M being a stranger to the appellant) strongly suggested that the appellant was the type of person who would do what the State alleged he did in relation to Ms Dodd.
More specifically, the State alleged that the appellant's guilt in relation to the charged offence of murder (and the alternative offence of manslaughter) was proved beyond reasonable doubt having regard to the following facts:
(a)at about 11.40 am on 29 July 1999, Ms Dodd was seen near the 961 marker on North West Road;
(b)on 29 July 1999, Ms Dodd was wearing distinctive Ankh earrings with a blue‑coloured stone at their centre;
(c)by 12.00 noon on 29 July 1999, Ms Dodd had disappeared from North West Road;
(d)at the relevant time on 29 July 1999, the appellant was driving Mr McConnell's vehicle in the vicinity of the 961 marker;
(e)three people saw a white utility vehicle, after they had seen Ms Dodd on North West Road, and one of these people identified the white utility as a Holden HQ utility (being the make of Mr McConnell's vehicle);
(f)there were only six licensed white Holden HQ utility vehicles in the whole shire area and there was no evidence that more than one of those vehicles was driving west on North West Road on the day in question;
(g)on 5 September 2013, Tracy Horner (a medical scientist at PathWest) found an earring identical to the earrings being worn by Ms Dodd on 29 July 1999 in the seat cover of Mr McConnell's vehicle, the seat cover having been seized by police on 6 August 1999 and placed in storage;
(h)the hook of the earring found in the seat cover was bent, as if it had been removed violently or had been mishandled;
(i)a hair (that is, Hair 13) was found in vacuumings made by police of the passenger footwell of Mr McConnell's vehicle on 6 August 1999 and the hair had a mitochondrial DNA profile which matched Ms Dodd's profile as well as a partial nuclear DNA profile which, apart from one Y allele, matched Ms Dodd's profile;
(j)it would be a very significant coincidence if a male person had those same alleles;
(k)the likelihood ratio of finding that partial nuclear DNA profile was approximately 7.2 million;
(l)the likelihood ratio of that DNA profile coming from Ms Dodd and an unknown person as opposed to a single unknown person if that DNA belonged to Ms Dodd was approximately 100 million;
(m)the combined likelihood ratio of that mitochondrial DNA profile and that partial nuclear DNA profile coming from Ms Dodd, as opposed to those profiles coming from an unknown person if the DNA belonged to Ms Dodd, was approximately 154 million;
(n)the appellant's account of his movements during the morning and the early afternoon of 29 July 1999 lacked any credibility and involved a reconstruction of his usual routine;
(o)the appellant's movements in Moora on the morning of 29 July 1999 were unusual and could not be verified independently, apart from his purchase at 10.35 am of the money order from the Post Office, despite the appellant being well known in Moora and, on his account, the appellant having been in busy establishments during the morning;
(p)the appellant, unusually, parked Mr McConnell's vehicle in the shed at the rear of his home, without any reasonable explanation;
(q)Mr McConnell said that the indicator lever on the steering wheel of his vehicle had been broken (as distinct from simply falling out), but the indicator lever was operational when police examined it on 6 August 1999 (suggesting that the indicator lever had been repaired between 29 July 1999 and 6 August 1999);
(r)after he returned home on 29 July 1999, the appellant suddenly came to be in a rush; and
(s)the appellant had a tendency to give a lift in his vehicle to a single woman on a road in a rural setting, take her to an isolated location and violently attack and sexually assault her.

Conviction appeal: overview of the appellant's case at the trial

The appellant's case at the trial was that:
(a)it is reasonably possible that Ms Dodd is not dead; and
(b)alternatively, if she is dead, then the appellant did not kill her.
The appellant gave sworn evidence at the trial. Defence counsel also adduced evidence from other witnesses.

Conviction appeal: ground 1

Ground 1 of the conviction appeal alleges that the verdict of guilty upon which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

Conviction appeal: ground 1: the trial judge's directions in relation to the earring and Hair 13

The trial judge directed the jury that the jury could not convict the appellant unless the jury was satisfied beyond reasonable doubt, on the whole of the evidence, that at least either the earring or Hair 13 came from Ms Dodd (ts 5752).
The correctness of that direction was not challenged in any ground of appeal in the conviction appeal. No notice of contention was filed.

Conviction appeal: ground 1: the evidence of alibi at the trial

The State tendered at the trial the appellant's written statement to police dated 3 August 1999 (Exhibit 175), the appellant's typewritten version of the statement he gave to police on 5 August 1999 with a few additions (Exhibit 177) and the appellant's EROI with police on 27 November 2013 (Exhibit 206). In the statements and the EROI the appellant made numerous assertions concerning his visit to Moora on the morning of 29 July 1999, including the time he began and completed the journey from his home to Moora, his activities while in Moora, and the time he began and completed the journey from Moora to his home.
The appellant also gave evidence at the trial about his visit to Moora on the morning of 29 July 1999, as follows:
(a)The appellant responded to the evidence in Mr McConnell's statement dated 4 August 1999 that when Mr McConnell returned home from work on 29 July 1999 he noticed that the indicator lever of Mr McConnell's vehicle 'had been broken off and was lying on the driver's side floor', by asserting that the indicator lever 'is actually made of metal, it doesn't break; the pin [which] hold it in falls out so every now and again [the lever] falls out' (ts 5287). The appellant added that when the indicator lever fell out he would 'pick it up and put it back in' (ts 5287). The appellant did not have any memory of the indicator lever falling out on 29 July 1999 (ts 5287), but it was a common occurrence for the lever to fall out (ts 5323).
(b)On 29 July 1999, the appellant travelled to Moora in Mr McConnell's vehicle. He was accompanied by his dog, Miss Piggy (ts 5291).
(c)The appellant began the journey from his home to Moora at about 9.30 am (ts 5291). The journey from his home to Moora would have taken him about 30 ‑ 45 minutes (ts 5291).
(d)On 29 July 1999, the appellant was not wearing a watch. He did not usually wear a watch (ts 5291).
(e)When the appellant arrived in Moora he parked Mr McConnell's vehicle on Dandaragan Road, opposite the R & I Bank (ts 5291 ‑ 5292).
(f)The appellant arrived in Moora some time after 10.00 am. The bank was open and he withdrew some money over the counter at the bank (ts 5292). The transaction would have taken no longer than 10 minutes (ts 5292).
(g)After visiting the bank, the appellant returned to Mr McConnell's vehicle, retrieved ten videos he had hired previously and went to Checkpoint Café (ts 5292).
(h)At Checkpoint Café, the appellant greeted a man behind the counter, handed him a bag containing the ten videos he had hired previously and was returning, and proceeded to select ten other videos to hire (ts 5293).
(i)The appellant went to Checkpoint Café to return and hire videos on a regular basis. It usually took him about 10 ‑ 15 minutes (possibly a little longer) to carry out the transaction (ts 5293).
(j)The appellant returned to Mr McConnell's vehicle with the new videos he had borrowed and then went to the Post Office (ts 5293).
(k)At the Post Office, the appellant paid a fine to the Ministry of Justice by money order and acquired a tax pack (ts 5294 ‑ 5295).
(l)The appellant acquired the last tax pack available at the Post Office and, consequently, he went to the newsagent to get a tax pack for Mr McConnell (ts 5296).
(m)The appellant saw Robyn Crouch on the footpath outside the Post Office. They spoke for about 5 minutes (ts 5297).
(n)The appellant then went to the newsagent and acquired another tax pack (ts 5297 ‑ 5298).
(o)As he was walking to the newsagent, the appellant saw Graeme Ellis sitting in his parked car. The appellant had a conversation with Mr Ellis for a couple of minutes (possibly 5 minutes) while Mr Ellis' wife went to the newsagent or Post Office (ts 5299).
(p)After speaking with Mr Ellis, the appellant went to the newsagent. He waited in line to get to the counter. He acquired another tax pack (ts 5299).
(q)Next, the appellant returned to Mr McConnell's vehicle. He put the tax packs in the vehicle and added water to the vehicle's radiator. He then drove to Supa Valu and DJ's Quality Meats on the other side of Moora (ts 5299).
(r)At Supa Valu, the appellant acquired a fortnight's worth of groceries. He usually spent about $150 on this shopping. After the groceries he selected were scanned at the counter, the appellant packed the items into plastic shopping bags supplied by the supermarket. The appellant paid for the groceries with cash. He then took the groceries to Mr McConnell's vehicle, put them in the rear tray of the vehicle, returned the shopping trolley and went to DJ's Quality Meats (ts 5299 ‑ 5301).
(s)At DJ's Quality Meats, the appellant ordered a side of mutton. He spoke to the butcher while the mutton was cut up. The appellant may have purchased some sausages and mince in addition to the mutton. The appellant checked the specials that were available at DJ's Quality Meats. He would have been at the butcher shop for about 10 ‑ 15 minutes. The appellant purchased enough meat for a fortnight and would have spent about $40 or $50. The appellant returned to Mr McConnell's vehicle and put the meat in the back of the vehicle with the other groceries (ts 5301 ‑ 5302).
(t)Next, the appellant drove Mr McConnell's car to the Pioneer Bakery. The car bays outside the bakery were taken. The appellant parked Mr McConnell's vehicle in the vicinity. When he walked into the bakery there were two customers in front of him at the counter. According to the appellant, he arrived at the bakery at about 12.00 noon. He said that would have been the time because his stomach was rumbling, people were coming and going, the bakery was busy and there was 'a lunchtime buzz'. The appellant purchased two pies at the bakery. He returned to Mr McConnell's vehicle, put the pies on the dashboard and began the return journey to his home (ts 5302 ‑ 5303).
(u)The appellant ate the pies as he was driving to his home. He was travelling at about 70 ‑ 75 km per hour. The appellant did not see anyone walking or standing on the side of North West Road. The appellant believed that he arrived at his home at about 1.00 pm. Upon arrival, he drove to the back of the house, entered the house through the back door and put the groceries and meat onto the table. He stored the dry goods in the cupboard, placed the meat in the freezer and put milk and other refrigerated produce in the refrigerator. The appellant wrote a note for Mr McConnell asking him to separate the meat (ts 5304).
(v)When he arrived home from Moora, the appellant parked Mr McConnell's vehicle at the back of the house to facilitate the unloading of the groceries and the meat. After he had stored the groceries and the meat in the house, he moved the vehicle into the shed because it appeared likely to rain (ts 5307).
(w)Next, the appellant got ready to travel to Perth. He packed tools for his motorcycle in addition to a towel, a jumper, spare pants and his swag. He also checked the oil in his motorcycle. The appellant did not change the clothes he had been wearing in Moora. He did not lock the house when he left. The appellant rode the motorcycle, with Miss Piggy sitting on the tank of the motorcycle, onto North West Road. He stopped at the Badgingarra Roadhouse to pay a bill and to purchase petrol for the motorcycle (ts 5308 ‑ 5310).
(x)As he was leaving the Badgingarra Roadhouse, the appellant saw Keith Skelley. The appellant spoke to Mr Skelley. The appellant would have departed from the Badgingarra Roadhouse after 1.30 pm. The appellant rode his motorcycle along Brand Highway to Muchea. He then travelled on Great Northern Highway towards South Fremantle (ts 5310 ‑ 5311).
(y)As he was riding his motorcycle in the Perth metropolitan area, the appellant was involved in an accident. The motorcycle was written‑off. The appellant was injured and taken to Royal Perth Hospital. He was admitted to the hospital in the late afternoon of 29 July 1999 and was discharged from the hospital on 1 August 1999 (ts 5311 ‑ 5312).
(z)The appellant had never seen or met Ms Dodd. He did not pick her up in Mr McConnell's vehicle on 29 July 1999. He did not kill Ms Dodd (ts 5320 ‑ 5321).

In July 1999, Catherine Edwards and her boyfriend, Paul Springer, stayed at the appellant's house (ts 4745 ‑ 4746). They left the house at about 8.30 am on 29 July 1999 (ts 4747). Ms Edwards gave evidence that on the evening of 28 July 1999 Mr McConnell drove her to Badgingarra in Mr McConnell's vehicle (ts 4749). Mr McConnell drove the vehicle extremely slowly (ts 4759). Ms Edwards said that on the morning of 29 July 1999 Mr McConnell left for work and the appellant got ready for an appointment in Moora. The appellant was still at home when she and Mr Springer left the house (ts 4751).
Michael Hughan gave evidence that in 1998 he sold an old white Holden utility vehicle (that is, Mr McConnell's vehicle) to the appellant for $200 (ts 4788 ‑ 4789). When Mr Hughan sold the vehicle to the appellant the vehicle did not have a car seat cover (ts 4797). When Mr Hughan owned the vehicle there was at least one occasion on which it was necessary for the indicator lever to be reattached (ts 4794).
Darren Harston, a Senior Constable with the Vehicle Investigation Unit, gave evidence concerning the repair of an indicator lever on a Holden HQ utility vehicle. He said that, for someone with experience, it would take about 15 minutes to replace the lever. However, for someone with limited experience, it might take 30 minutes (ts 5138 ‑ 5139). Senior Constable Harston acknowledged that he had not examined Mr McConnell's vehicle. He had seen only photographs of the vehicle. The photographs showed that the indicator lever was held in place by a single screw (ts 5142). The lever fitted into a receptacle in the plastic housing and the single screw kept it in position. The plastic could stretch if the screw was tightened excessively (ts 5143). It was possible for the screw to become loose. If the screw became loose the indicator lever could fall out (ts 5144). If the screw became loose and the lever fell out, nothing would be damaged and the lever could be reattached (ts 5145). The screw that held the indicator lever in place was about 10 mm in length (ts 5145).
Detective Sergeant Ryan Murphy carried out time and distance checks in the vicinity of Moora and Badgingarra. Detective Sergeant Murphy gave evidence that he and another police officer travelled from the Pioneer Bakery in Moora to the 961 marker. They drove their vehicle at a maximum of 80 km per hour. The vehicle left the Pioneer Bakery at 11.18 am and arrived at the 961 marker at 11.58 am. The odometer measured that the distance travelled was 51 km (ts 5247).
Other evidence at the trial, relevant to the appellant's alleged alibi, included evidence from the following witnesses of events and circumstances on or in the vicinity of North West Road and at or in the vicinity of the Badgingarra Roadhouse:
(a)The evidence of Mr Spry to which we have referred at [27] above.
(b)The evidence of Ms Dodd's telephone call at 10.35 am and the evidence of the purchase she made at the Badgingarra Roadhouse at 10.38 am, to which we have referred at [28] above.
(c)The evidence of Mrs Johnson to which we have referred at [29] above.
(d)Margaret King worked, at the material time, in the office at Dongara Denison Strata Caravan Park. Ms King gave evidence that at about 11.00 am on 29 July 1999 she received a telephone call at work from a young girl who she thought sounded about 15 ‑ 18 years (ts 3421). The girl asked Ms King whether her friend Lisa had arrived and asked that Lisa be told that she was in Badgingarra (ts 3421). Ms King spoke to Ms Frederickson later that day and told her that Ms Frederickson's friend had telephoned and was in Badgingarra (ts 3422).
(e)Albert Rowland worked, at the material time, as a sales representative for Repco Auto Parts. Mr Rowland said in his witness statements, which were read into evidence, that between 10.30 am and 11.00 am on 29 July 1999 he saw a girl aged about 15 alighting from a prime mover truck at the front of the Badgingarra Roadhouse (ts 3424). Mr Rowland then saw the girl in a telephone box at the Roadhouse. Next, the girl went into the Roadhouse and purchased a bottle of water and a packet of chips. Mr Rowland said the girl was about 5 ft 4 in in height and had dark shoulder length (maybe longer) hair. She was wearing dark jeans, a black short sleeved midriff top and brown hiking boots. She was carrying a brown backpack and had a grey jumper draped over her shoulders (ts 3424). Mr Rowland saw the girl again when he was driving on the road to Moora. The girl was walking along the road and did not hail for a lift (ts 3425).
(f)Eva Gerrard was, at the material time, a tourist from South Australia. Ms Gerrard said in her witness statement, which was read into evidence, that between 10.00 am and 10.30 am on 29 July 1999 she and her husband refuelled their vehicle at the Badgingarra Roadhouse. Ms Gerrard saw a girl aged about 15 alight from a lorry and walk into the Roadhouse. The girl then went into a telephone box and appeared to make a telephone call. The girl was wearing walking or hiking boots and carrying a backpack (ts 3427 ‑ 3428).
(g)Fiona Weaver and her husband, Mark Weaver, lived at the material time in Badgingarra. Ms Weaver gave evidence that on 29 July 1999 she and her husband drove to the Badgingarra Primary School to carry out some printing on the school computer (ts 3430). As they were travelling to the school, Ms Weaver noticed a vehicle stop near the intersection of North West Road and Winjardie Road. Ms Weaver's description of the vehicle matched the description of the vehicle that Mrs Johnson was driving that day. Ms Weaver said that a young girl alighted from the passenger side of the vehicle (ts 3431). The girl had pale skin. She was small, petite, had dark hair and looked young. She was wearing hiking boots, jeans and a dark coloured shirt and was carrying a yellow/khaki backpack (ts 3431). Ms Weaver said she would have seen the girl alighting from the vehicle at just before 11.00 am. Ms Weaver and her husband arrived at the school at morning recess time, which was about 11.00 am (ts 3430). She and her husband remained at the school for about 10 ‑ 15 minutes (ts 3432). After leaving the school, they turned right onto North West Road because they wanted to make sure that the girl they had seen was still walking on the road (ts 3454). Ms Weaver saw the girl again just before the turn into the Badgingarra rubbish tip. The girl was walking along the northern side of North West Road towards the east (ts 3455).
(h)Mark Weaver gave evidence that was generally consistent with the evidence given by his wife, Fiona Weaver (ts 3796 ‑ 3802).
(i)Carl Moltoni, a farmer, was driving a motor vehicle along North West Road on 29 July 1999. Mr Moltoni met David Skipworth on the corner of Rowe Road and Dandaragan Road at 10.30 am (ts 3438 ‑ 3439). Mr Moltoni saw a young girl near the old Badgingarra townsite. She was walking towards Dandaragan Road. The girl was slim, about 5 ft to 5 ft 2 in in height, young, had dark shoulder length hair and an olive complexion. She wore long dark pants, a dark top (which possibly had stripes) and was carrying a dark coloured bag (ts 3443 ‑ 3444). The girl was on the north side of North West Road and was walking casually towards Moora (ts 3444 ‑ 3445). Mr Moltoni saw the girl sometime after about 10.45 am (ts 3442). He did not know the precise time at which he saw the girl (ts 3449).
(j)David Skipworth, a concrete worker, met Mr Moltoni on the corner of Rowe Road and Dandaragan Road at about 10.25 am/10.30 am on 29 July 1999 (ts 3462). Mr Skipworth saw Geoffrey Wyatt driving a rubbish truck on North West Road (ts 3464). Mr Skipworth also saw a young girl on the north side of North West Road just after the old Badgingarra townsite (ts 3466). The girl had dark hair (not necessarily black), a dark top and something black in her hands (ts 3467, 3473). Mr Skipworth's motor vehicle was travelling at about 90 km per hour when he saw the girl (ts 3470). Mr Skipworth had only a quick glimpse of the girl. He could not be sure that he saw the girl at about 11.00 am (ts 3474).
(k)Nigel Streppel worked as a truck driver. He lived 9 km west of Moora. Mr Streppel gave evidence that on 29 July 1999, at about 11.30 am, he left his house and rode his motorcycle to the Badgingarra Roadhouse (ts 3500). It took Mr Streppel about 30 - 45 minutes to travel from his house to the Roadhouse. He passed three cars but did not see anyone on the side of the road (ts 3495 ‑ 3496). Mr Streppel withdrew $100 at the Roadhouse. A receipt for the transaction was time stamped 12.24 pm (ts 3494).
(l)Eileen Purser worked, at the material time, as a bookkeeper in Moora. Ms Purser gave evidence that on 29 July 1999, at 10.40 am, she left Moora in her motor vehicle to meet her sister at the Badgingarra Community Centre. She drove along North West Road (ts 3522 ‑ 3523). On the journey to Badgingarra, Ms Purser saw a young girl on the north side of North West Road walking towards Moora. The girl had shoulder length dark hair (ts 3525). She wore jeans, a black midriff top and a long sleeved top/jacket. She carried a backpack (ts 3524). Ms Purser saw the girl when Ms Purser arrived at the Badgingarra Road turnoff (ts 3525 ‑ 2536). Ms Purser saw the girl at 11.20 am (ts 3527).
(m)Timothy Jankowski worked, at the material time, as a truck driver. On 29 July 1999, at about 11.20 am/11.30 am, Mr Jankowski was driving his vehicle along North West Road when he saw a young teenage girl walking on the gravel shoulder on the northern side of the road heading towards Moora (ts 3534 ‑ 3535, 3537). The girl was about 5 km from Badgingarra. She had long darkish hair and wore darkish clothing including pants and boots. She carried a backpack (ts 3535).
(n)Donald Cheek gave evidence that on 29 July 1999 he saw a girl on the side of the road when he was driving a vehicle along North West Road. The girl was about 7 ‑ 8 km from the new Badgingarra townsite (ts 3548). The girl was short and of slight build (ts 3548).
(o)Stephen Koeberle worked, at the material time, as a contractor for Australia Post. He lived in Moora and used a motor vehicle to transport mail. Mr Koeberle gave evidence that his schedule for collecting mail bags included collecting mail bags from Jurien Bay at about 10.05 am, Badgingarra at about 11.05 am, Dandaragan at about 11.55 am and Moora at about 12.30 pm on Thursdays (ts 3555, 3556). Mr Koeberle said that on 29 July 1999 he saw a young girl after he had left Badgingarra (following the collection of mail bags) near the intersection where he turned right to travel to Dandaragan (ts 3556). The girl was walking on the gravel towards Moora. She was carrying a brownish backpack/knapsack and did not indicate that she wanted a lift (ts 3557). The girl was on the north side of the road about 20 m before the intersection (ts 3558). Mr Koeberle saw the girl about 10 minutes after he left Badgingarra (ts 3562).
(p)David Stribley was, at the material time, the manager of an Elders store in Moora. Mr Stribley gave evidence that on 29 July 1999 he drove a white Falcon sedan from Moora to Creswick Farm to deliver herbicides (ts 3563 ‑ 3564). Mr Stribley saw a farm utility and Mr Koeberle's vehicle along Badgingarra/Dandaragan Road before Mr Stribley arrived at Creswick Farm. Mr Koeberle's vehicle was travelling in the opposite direction. Mr Stribley passed Mr Koeberle after Koonah Road, but before Creswick Farm (ts 3581 ‑ 3582). Mr Stribley arrived at Creswick Farm at about 11.15 am ‑ 11.20 am and was at the farm for, at most, 5 ‑ 10 minutes (ts 3566). After leaving Creswick Farm, Mr Stribley drove north on Badgingarra/Dandaragan Road up to North West Road. He then turned right to travel to Moora (ts 3568). On the return journey to Moora, Mr Stribley noticed a girl kneeling or squatting beside the road. She was going through a backpack (ts 3569 ‑ 3570). The girl appeared to be very young. She did not try to stop Mr Stribley or wave him down (ts 3570). The girl was near a driveway to a farm owned by the Roberts family (ts 3571). She had brownish hair (ts 3571). Her backpack was small and black and she was wearing jeans. Mr Stribley was 'pretty sure' she was wearing a black shirt (ts 3571). Mr Stribley gave evidence that the girl was near the 961 marker (ts 3572 ‑ 3573). Mr Stribley said that the marker had not been installed in 1999 (ts 3573). He identified the girl's location because of her proximity to the driveway of the farm owned by the Roberts family (ts 3571, 3573). After passing the girl, Mr Stribley saw a farm utility, a Telstra vehicle with gear on the roof and another vehicle closer to Moora (ts 3578). Mr Stribley saw the farm utility before Muthawandery Road, about 5 ‑ 10 minutes after seeing the girl (ts 3578). The farm utility was a standard farm utility. It was an older type (ts 3578). The farm utility was dirty‑white with a single cab and tray (ts 3579 ‑ 3580). Mr Stribley arrived in Moora at about 12.00 noon (ts 3581). Mr Stribley told police in a witness statement made in August 1999 that he left the Moora office at 11.00 am (ts 3590). Mr Stribley has always maintained that he left Creswick Farm at 11.30 am (ts 3593). Mr Stribley estimated that he saw the girl at 11.35 am ‑ 11.40 am (ts 3583). After Mr Stribley saw the girl front on and passed her, he saw her only briefly in his rear vision mirror because of the speed at which he was travelling (ts 3573). Mr Stribley did not look at a watch or clock when he saw the girl (ts 3584). On 29 July 1999, he did not wear a watch (ts 3584). When Mr Stribley got into his car to leave Creswick Farm a programme called The World Today was on the radio. The programme had a familiar jingle. Mr Stribley heard the jingle when he got into his car to leave Creswick Farm (ts 3567). Mr Stribley had the radio on all of the time that he was in the car. He was not sure whether The World Today programme had just begun or not when he got into the car to leave Creswick Farm. However, he maintained that he heard the jingle at about the half‑way stage of the programme (ts 3584). Mr Stribley acknowledged in cross‑examination that in the witness statement he made in August 1999 he had said that, when he left Creswick Farm, The World Today programme had only just begun (ts 3585). Mr Stribley said he thought that was the truth when he made the witness statement, but he believed when he gave his evidence at the trial that 'the programme was running and probably half‑way through' (ts 3585). He was mistaken about that issue in the statement he made in August 1999 (ts 3585 ‑ 3586). Mr Stribley also acknowledged in cross‑examination that in his witness statements made in August 1999 and in 2001 he said that he had passed three vehicles, but could not remember in what order (ts 3587). He told the truth when he gave those statements (ts 3588). Mr Stribley was aware of the difference between a tray‑back and a well‑body utility vehicle. Mr Stribley said that a tray‑back is, in essence, a cab chassis with a tray fitted after manufacture. The tray is usually flat but it can have sides. The tray is usually made from steel or aluminium (ts 3589). He said that a well‑body has panels on the sides and the back of the utility which form part of the utility and are usually the same colour (ts 3590). Mr Stribley agreed that the farm utility he saw was a Toyota Hilux type of utility with, to the best of his recollection, a tray‑back (ts 3589). He thought the utility was one of the older models: it was not the LandCruiser type, but was an older style, closer to the road than the LandCruiser jacked‑up type 4‑wheel drive utility (ts 3579). The farm utility did not have any special features (ts 3579). The first vehicle Mr Stribley saw after the girl was the farm utility (that is, an older single cab with a tray‑back); the second was the Telstra vehicle; and the third was a sedan or wagon (ts 3589 ‑ 3590).
(q)Sarah Knight is the local manager of ABC Radio Perth. She has worked for the ABC for 32 years. Ms Knight had examined the ABC's records in relation to a programme on ABC regional radio in 1999 called The World Today (ts 3597). Ms Knight said that in 1999 there was a 10 minute news bulletin on ABC regional radio which began at 11.00 am. In 1999 The World Today programme was 50 minutes in duration and began on ABC regional radio at 11.10 am (ts 3598). In 1999 there was a distinctive jingle that was played during The World Today programme. The jingle was played on four occasions during each programme. In particular, the jingle was played at the beginning of the programme, at the end of a brief introduction by the broadcaster, in about the middle of the programme and at the end of the programme (ts 3600).
(r)Norman Smith and his wife, Kim Smith, were driving from Geraldton to Lake Hinds on 29 July 1999 (ts 3601 ‑ 3602). Mr Smith gave evidence that they stopped in Dongara for fuel and food after about 45 minutes and stopped again about 20 km before Badgingarra (ts 3602). A receipt for the fuel purchased in Dongara was time stamped 9.48 am (ts 3603). As they drove along North West Road towards Moora, Mr Smith saw a young girl not far from the end of the golf course (ts 3605). The time was about 11.40 am (ts 3606). The girl was short, petite and had darkish hair down to her shoulders. She wore long navy blue pants and a top with a stripe. She carried a small backpack and had a navy blue jumper around her waist (ts 3606). Mr Smith thought they passed only one vehicle, namely an old off‑white Holden utility around the HQ era. There was one person in the utility and they were heading towards Badgingarra (ts 3608 ‑ 3609). Mr Smith saw the utility a little to the east of Mungedar Road (ts 3609). Mr Smith was familiar with the model because he had previously had a HQ utility on his farm (ts 3609). Mr Smith said the utility had a well‑body and the whole of the vehicle was the same colour (ts 3611). He did not recall any special features of the utility (ts 3611). Mr Smith said that the utility he saw did not have a roo or bull bar; did not have a tonneau cover; did not have a large antenna on its front; did not have any two‑way aerials; and had indicators on the side, not on the bumper bar (ts 3613). Although defence counsel cross‑examined Mr Smith on minor matters of detail about the utility, defence counsel did not challenge Mr Smith's identification of the vehicle as a utility around the HQ era (ts 3612 ‑ 3614).
(s)Mrs Smith said that she saw the young girl at about 11.40 am on 29 July 1999 (ts 3616). She was little; aged 15 or 16; fairly short in height; had dark hair; carried a dark backpack; and wore long pants and a casual jumper (ts 3618). The girl was walking along North West Road near the golf course area. The radio in their vehicle said it was 11.40 am (ts 3616). The girl was not hitchhiking (ts 3618). Mrs Smith saw a white utility on the road travelling in the opposite direction to them, about 5 to 10 minutes after seeing the girl (ts 3619 ‑ 3620). Mrs Smith thought that the utility was most probably a LandCruiser type utility (ts 3619). However, she is not very good at identifying cars (ts 3619). Mrs Smith said she knew the difference between a tray‑back and a well‑back utility. The utility she saw had a tray‑back (ts 3621).
(t)Michael Russell worked, at the material time, as a self‑employed plumber and gas fitter. Mr Russell said in his witness statement, which was read into evidence, that between about 10.30 am and 11.00 am on 29 July 1999, he drove along Meagher Drive and saw a girl walking north on the western side of the road in front of a sign that said 'Tavern'. The girl was very short and appeared to be aged about 14 or 15. She appeared to be eating. Mr Russell slowed his vehicle and said 'Hi', but the girl did not respond (ts 3624). When Mr Russell drove back along Meagher Drive about 10 minutes later, he did not see the girl (ts 3625). The girl had mousy brown shoulder length hair, was wearing boots and was carrying a backpack (ts 3624).
(u)Paul Wilkins worked, at the material time, as an industrial equipment supplier. Mr Wilkins said in his witness statement, which was read into evidence, that on a Thursday in July 1999 he was travelling from Moora to Badgingarra around or just before 12.00 noon. He saw a girl on the north side of the road walking towards Moora. She appeared to be aged 14 or 15. The girl had white skin, dark hair and was wearing jeans and a dark top (ts 3629). The girl did not appear to be hitchhiking (ts 3629). The girl was no more than 2 km from Brand Highway (ts 3629). After seeing the girl, Mr Wilkins appoached a bend in the road and saw a light coloured sedan that was parked. He thought the sedan had four doors. Mr Wilkins had previously seen the light coloured sedan in that location and had previously seen a man jogging in the vicinity (ts 3629 ‑ 3630).
(v)Laurie Giles worked, at the material time, as a transport driver. Mr Giles said in his witness statements, which were read into evidence, that on 29 July 1999 he delivered working materials to various sites. He arrived in Moora at about 10.00 am. Mr Giles then drove to Jurien Bay and, on the way, he saw a young girl on North West Road, as he passed a brown coloured sign indicating the old Badgingarra townsite. The girl wore dark coloured trousers and a dark coloured jacket. She was also wearing a grey/light brown backpack. He saw the girl between 11.00 am and 11.30 am (ts 3893). The girl appeared to be aged about 15 or 16. She had long brown hair, was about 5 ft in height and was slim (ts 3893). About 50 m after Mr Giles passed the girl, a white van and a small car, possibly dark brown in colour, passed him. The vehicles were travelling towards Moora (ts 3896).
(w)Leonard Hale was, at the material time, a Telstra technician in Moora. Mr Hale said in his witness statement, which was read into evidence, that on 29 July 1999 he attended a work team briefing in Moora between 7.30 am and 10.20 am. At about 10.35 am, Mr Hale left Moora and drove towards the Jurien East exchange (ts 4654). Mr Hale saw a girl walking along the right hand side of North West Road. The girl appeared to be aged about 19. She had fair skin, dark brown wavy hair and wore sunglasses. She was wearing a shirt, with her midriff exposed, and possibly black trousers. The girl carried a light coloured backpack (ts 4655). Mr Hale was on a straight stretch of road and looked at the girl for about 20 seconds. She was walking towards Moora (ts 4655). (It appears that Mr Hale was driving a white Nissan Patrol Telstra tray‑top utility (ts 4658 ‑ 4659).)
(x)Timothy Peacock was, at the material time, a farmer at Badgingarra. Mr Peacock gave evidence that on the morning of 29 July 1999 he sprayed fire breaks (ts 4669). He was driving an olive green 1987 model Ford Maverick tray‑back utility, which had an orange tank on the back (ts 4670). At about 11.00 am Mr Peacock ran out of spray. He went home and then drove to Badgingarra to get more spray. Mr Peacock would have been wearing a watch (ts 4670). He left his house at about 11.30 am. He did not recall seeing any particular vehicles on the road that day (ts 4673). Mr Peacock went to the Badgingarra Roadhouse and bought something to eat and drink on his way home. He did not recall seeing anyone walking on the side of the road as he drove home (ts 4675). He arrived home at about 12.30 pm (ts 4676).
(y)Kenneth Barrett was, at the material time, a Telstra worker. He was based in Cervantes but the main Telstra depot was in Moora. A number of Telstra personnel worked in that area (ts 4679). On 29 July 1999, Mr Barrett drove from Cervantes to Moora for a team meeting. The meeting began at about 7.30 am and ended at about 10.30 am (ts 4680). Mr Barrett then went to Checkpoint Café in Moora and ordered lunch. Mr Barrett left Moora but returned when he realised he had forgotten some cable. On the return journey, he saw Mr Hale, who was driving a white Nissan Patrol utility (ts 4681). Mr Barrett left Moora again at about 11.30 am (ts 4682). He met with a contractor in Jurien Bay at about 12.45 pm. On 29 July 1999, Mr Barrett was driving a white Nissan Patrol vehicle with Telstra markings (ts 4683 ‑ 4684). Mr Barrett did not see anyone walking along North West Road on 29 July 1999. He did not recall the vehicles he saw on that day (ts 4685).
(z)Melinda Borwick who, at the material time, resided on a farm at Cervantes Road, provided a witness statement that was read into evidence. On 29 July 1999, Ms Borwick took her children to Moora to see a medical practitioner. They arrived in Moora by 10.15 am. Ms Borwick and her children went to the Moora Bakery before the medical appointment. Next, they went to see the medical practitioner. They left the medical practitioner's rooms at about 11.45 am (ts 4707). After visiting the chemist and the newsagency in Moora, Ms Borwick began driving home. On the return journey, Ms Borwick turned onto North West Road at about 12.25 pm. She did not see anyone hitchhiking on any road while travelling home (ts 4708). Ms Borwick recalled passing only one car on the return journey. That was a white LandCruiser or Nissan utility with a male driver. The utility appeared to be turning left onto Wathingarra Road. The utility was clean and about a 1993 model (ts 4708).
(aa)Graham Burnett was, at the material time, a linesman employed by Telstra. On 29 July 1999, Mr Burnett was in charge of Robert Smith (known as Bruce Smith). Mr Burnett drove a white Nissan Patrol with Telstra markings, and Mr Smith drove a white LandCruiser station wagon with Telstra markings (ts 4718). After lunch on 29 July 1999, Mr Burnett and Mr Smith drove to the Yallalie Exchange on the corner of Muthawandery Road and North West Road (ts 4719 ‑ 4721). Mr Burnett and Mr Smith then drove to the Cook's farm to carry out some work. Mr Burnett left Mr Smith at the Cook's farm and drove to the Richards' property. Mr Burnett then returned to the Cook's farm. He met Mr Smith at the farm gate. Mr Burnett returned to the Yallalie Exchange and then drove to Moora (ts 4722 ‑ 4725). Mr Burnett left the Cook's farm at about 3.15 pm to 3.30 pm. He arrived at Moora at just before 4.00 pm. During the entirety of his travels along North West Road and other roads on 29 July 1999, Mr Burnett did not see any person walking on the side of the road (ts 4726). On 29 July 1999, Mr Burnett did not have a discussion with Bruce Smith about a young woman having gone missing in the North West Road area (ts 4726). He had a discussion on that topic with Bruce Smith some days later (ts 4727). On 29 July 1999, Bruce Smith did not mention to Mr Burnett that he had seen a hitchhiker (ts 4732). Mr Burnett was 'absolutely gobsmacked' when Bruce Smith told police, in Mr Burnett's presence, at the Moora Police Station that they had seen a hitchhiker on 29 July 1999. Mr Burnett had not seen anyone hitchhiking on that day (ts 4732 ‑ 4733).

It was submitted that, in considering the appropriate range of sentences to be imposed in a particular case, regard must be had to what has occurred in other cases for the purpose of ensuring consistency. Counsel argued that other cases such as McNamara v The State of Western Australia,[48] Dodd v The State of Western Australia[49] and Hishmeh v The State of Western Australia[50] must be considered. Counsel also argued that it was important to have regard to the fact that Jenkins J sentenced the appellant after the original trial to life imprisonment with a minimum non‑parole period of 21 years for the offence of murder.
[48] McNamara v The State of Western Australia [2013] WASCA 63.
[49] Dodd v The State of Western Australia [2013] WASCA 80.
[50] Hishmeh v The State of Western Australia [2012] WASCA 183.
It was submitted that the trial judge appeared to have given 'little weight' to the fact that the appellant had been incarcerated since 2007 and had completed 'extensive rehabilitation in custody' as evidenced by his significant and impressive educational and vocational achievements or to the fact that the sentencing factor of personal deterrence will have little role due to the appellant's age.
Counsel contended that implied error was shown by the magnitude of the appellant's sentence having regard to all the circumstances of the case.

Sentence appeal: ground 1: the State's submissions

Counsel for the State argued that counsel for the appellant's reliance upon previous cases was misguided. The unchallenged finding of the trial judge was that the appellant's offence was within the worst category. Consequently, the sentencing range established under the transitional provisions is not applicable. Further, the range of sentences customarily imposed for manslaughter outside the worst category has no utility as a yardstick for consistency purposes.
It was submitted that there is no substance in counsel for the appellant's undeveloped contention that it was important to have regard to the sentence imposed by Jenkins J following his conviction for murder.
It was submitted that counsel for the appellant's complaint about the weight given by the trial judge to various matters was misconceived. A complaint about the attribution of weight to a particular sentencing factor does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
It was submitted that counsel for the appellant had failed to engage with the trial judge's findings in relation to the factual circumstances of the appellant's offence, the aggravating and mitigating factors which were relevant to the seriousness of the offence or the ultimate finding that the offence was so serious as to warrant a sentence approaching the maximum penalty.
Counsel contended that the sentence of 18 years' imprisonment was not outside the range of a sound exercise of the sentencing discretion.

Sentence appeal: ground 1: its merits

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen,[51] the maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'. See also Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym).[52] Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of the offence in question to the worst category, being those offences so grave as to warrant the maximum penalty. See Ibbs v The Queen[53] and R v Kilic.[54]
[51] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[52] Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10] (Kiefel CJ, Bell & Keane JJ).
[53] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey & Gaudron JJ).
[54] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] (Bell, Gageler, Keane, Nettle & Gordon JJ).
If offending falls within the 'worst category' of an offence, it is an instance of the offence which is so grave that it warrants the imposition of the maximum penalty. Both the nature and facts of the offending and the circumstances of the offender must be considered in deciding whether the case falls within this 'worst category'. If offending falls within the 'worst category' it is immaterial that it may be possible to conceive an even worse instance of the offence. Accordingly, an offence may be so grave as to warrant the maximum penalty even though it is possible to imagine an even worse instance. See Kilic [18].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[55] The State of Western Australia v Doyle;[56] McAlpine v The State of Western Australia;[57] and The State of Western Australia v Paolucci.[58]
[55] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[56] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[57] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
[58] The State of Western Australia v Paolucci [2020] WASCA 188 [53] (Buss P, Mazza & Beech JJA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[59]
[59] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the trial judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Part 2 div 1 comprises s 6 to s 9AA.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[60]
[60] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty for manslaughter has been life imprisonment. Previously, the maximum penalty was 20 years' imprisonment.
In the present case, the maximum penalty applicable to the appellant is 20 years' imprisonment.
There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts. See Wicks v The Queen;[61] Colledge v The State of Western Australia;[62] and The State of Western Australia v Walley.[63]
[61] Wicks v The Queen (1989) 3 WAR 372, 379 ‑ 380 (Malcolm CJ).
[62] Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen & Miller JJA agreeing).
[63] The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler & Miller JJA).
The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA (Owen & Miller JJA agreeing) noted in College [18]:
A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing. The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years.
So, manslaughter is, of its nature, an offence where the facts and circumstances of each case will usually differ significantly. See Walley [32]. Wheeler and Miller JJA pointed out in Walley [32] that comparisons with sentences imposed at trial, and even in the case of R v Churchill,[64] after appeal, are seldom helpful in manslaughter cases.
[64] R v Churchill [2000] WASCA 230.
Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See Taylor v The State of Western Australia;[65] and Walley [32].
[65] Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 [54] (Miller JA; Owen & Wheeler JJA agreeing).
We have considered numerous prior cases of offending against s 280 of the Code when the maximum penalty was 20 years' imprisonment. See, in particular, The State of Western Australia v Munda;[66] Hishmeh; McNamara; Dodd; Heaton v The State of Western Australia;[67] Armstrong v The State of Western Australia;[68] The State of Western Australia v Camus;[69] Stagno v The State of Western Australia;[70] and Harvey v The State of Western Australia.[71]
[66] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137.
[67] Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409.
[68] Armstrong v The State of Western Australia [2013] WASCA 290.
[69] The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384.
[70] Stagno v The State of Western Australia [2015] WASCA 115.
[71] Harvey v The State of Western Australia [2015] WASCA 250.
It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. The facts and circumstances of the present case are not truly comparable with the facts and circumstances of any of the prior cases.
We are satisfied, having regard to the nature and facts of the appellant's offending and his personal circumstances and antecedents, including the aggravating factors and the mitigating factors mentioned by his Honour, that the appellant's offending was not merely a grave instance of the offence of manslaughter. It was within the 'worst category' of the offence. The appellant's offending warranted the imposition of the maximum penalty of 20 years' imprisonment, subject to reductions on account of the mitigating factors.
The appellant was not youthful or inexperienced for sentencing purposes. He was, of course, entitled to proceed to trial, but he was unable to claim the mitigation that a plea of guilty would have brought. The appellant's criminal record, and any failure of previous sentences to achieve the purposes for which they were imposed, did not aggravate the offending in question, but his record demonstrated that, when he was sentenced, he was not otherwise of good character. No victim empathy was apparent. The appellant was unremorseful and did not accept any responsibility for his criminal conduct. As the trial judge rightly observed, there were few mitigating factors [48].
We are of the opinion, after evaluating the sentence of 18 years' imprisonment in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)the vulnerability of Ms Dodd;
(d)the standards of sentencing customarily observed;
(e)the place which the appellant's offending occupies on the relevant scale of seriousness;
(f)the appellant's personal circumstances and antecedents;
(g)the aggravating factors mentioned by his Honour; and
(h)the mitigating factors mentioned by his Honour,
that the sentence was commensurate with the seriousness of the offence. The length of the sentence was not unreasonable or plainly unjust. Error by his Honour in the exercise of his discretion cannot be inferred from the sentencing outcome.

Sentence appeal: ground 1: conclusion

Ground 1 of the sentence appeal has not been made out.

Sentence appeal: ground 2: the appellant's submissions

Ground 2 alleges that the sentence imposed by the trial judge infringed the totality principle.
As to the first limb of the totality principle, counsel for the appellant noted that the appellant had served a sentence of 12 years' imprisonment for the Queensland offences before being sentenced to 18 years' imprisonment for the offence in question. It was submitted that the sentence of 18 years' imprisonment following the appellant's service of the sentence of 12 years' imprisonment resulted in a total sentence of 30 years' imprisonment for all of the offences and that total sentence, viewed in its entirety, did not bear a proper relationship to the overall criminality involved in all of the offences.
As to the second limb of the totality principle, it was noted that the appellant would be aged about 80 when he becomes eligible to be considered for release on parole. It was submitted that the sentence of 18 years' imprisonment was crushing, in the relevant sense, in that the sentence destroyed any reasonable expectation that the appellant would have a useful life after release from custody.

Sentence appeal: ground 2: the State's submissions

As to the first limb of the totality principle, counsel for the State noted that the appellant's offending in Queensland and Western Australia involved two separate and distinct offences with an interval of eight years between the offending in Western Australia and the offending in Queensland. During that time the appellant enjoyed freedom in the community. The offending in Western Australia and Queensland was not interrelated or contemporaneous. Counsel referred to the trial judge's unchallenged finding that there was no positive indication that the appellant had been rehabilitated [50] ‑ [51]. The appellant was not entitled to any mitigation for acceptance of responsibility or remorse. His Honour recognised that it was necessary, in consequence of the appellant's lengthy sentence for his offending against Ms M, for there to be some limited reduction of the sentence for the appellant's offending against Ms Dodd to ensure that the time the appellant spent in custody was proportionate to the criminality of the whole of his offending viewed together. It was submitted that the sentence of 18 years' imprisonment had been reduced from a starting point of or approaching the maximum penalty of 20 years' imprisonment and, in all the circumstances, that involved a proper application of the first limb of the totality principle.
As to the second limb of the totality principle, it was submitted that whether leniency is to be extended to an offender on account of advanced age depends significantly on the circumstances of the case. Age is only one factor in the sentencing process. Advanced age in and of itself can never be a justification for an unacceptably inappropriate sentence. Counsel argued that the trial judge properly determined that, to the extent that the sentence of 18 years' imprisonment may deprive the appellant of a reasonable prospect of useful life upon his release, that was no more than a necessary consequence of imposing a sentence which adequately reflected his overall criminality.

Sentence appeal: ground 2: its merits

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender has recently completed or is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[72] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia[73] and Gaskell v The State of Western Australia.[74]
[72] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[73] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[74] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia[75] and Paolucci [54].
[75] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
The second limb of the totality principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.

Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter;[76] Braham v The Queen;[77] R v Whyte;[78] Gulyas v The State of Western Australia;[79] and R v Iles.[80]
[76] R v Hunter (1984) 36 SASR 101, 103 (King CJ).
[77] Braham v The Queen (1994) 116 FLR 38, 51 (Angel J).
[78] R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P; Bongiorno & O'Bryan AJJA agreeing).
[79] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P; McLure & Miller JJA agreeing).
[80] R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA; Neave JA agreeing).
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.
So, the second limb of the totality principle is not absolute. There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.
As a matter of fact, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence.
In Smith v The State of Western Australia,[81] Buss JA (McLure P & Mazza J agreeing) referred to various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the duties imposed on the Chief Executive Officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act and on medical officers to ensure that medical care and treatment is provided to prisoners.
[81] Smith v The State of Western Australia [2010] WASCA 176 [68].
In the present case, in 2007 the appellant was sentenced in the District Court of Queensland to a total effective sentence of 13 years' imprisonment for his offending against Ms M. On appeal, the Court of Appeal of Queensland reduced the total effective sentence to 12 years' imprisonment. See R v Wark.[82] We have read and considered the reasons of the Court of Appeal of Queensland.
[82] R v Wark [2008] QCA 172.
When the trial judge sentenced the appellant to 18 years' imprisonment, with parole eligibility, his Honour backdated the sentence to 1 June 2019 to take into account the time the appellant had spent in custody in relation to his unlawful killing of Ms Dodd.
There is no doubt that the offences which the appellant committed against Ms M and the offence of unlawfully killing Ms Dodd were extremely serious.
The appellant was aged 43 when he unlawfully killed Ms Dodd. He was aged 51 when he offended against Ms M. The appellant's offending in respect of Ms Dodd was separate and distinct from his offending against Ms M.
The trial judge made unchallenged findings that the appellant's attitude did not provide any positive indication of rehabilitation and that it had not been demonstrated that the appellant had been rehabilitated in respect of his unlawful killing of Ms Dodd [50] ‑ [51].
It was submitted on behalf of the appellant to his Honour that the appellant has suffered from skin cancer, high blood pressure, back injuries, high cholesterol and gout. It was conceded, however, that the appellant was in reasonable health for a person of his age. There was no suggestion that the appellant could not properly be treated in custody for his medical conditions.
The facts and circumstances of the appellant's overall offending are not truly comparable with the facts and circumstances of offending in any prior cases.
The appellant will not complete the sentence of 18 years' imprisonment until 1 June 2037. He will not be eligible to be considered for release on parole until 1 June 2035. By 1 June 2037 the appellant will be aged 81. If he is not released on parole he will have served 30 years in prison for his offences in Queensland and Western Australia. The appellant has, by his deliberate and extremely serious criminal conduct, ruined his life from the age of 51, when he was remanded in custody for his offending against Ms M.
In our opinion, the overall total effective sentence of 30 years' imprisonment does not infringe the first limb of the totality principle. A custodial term of that length was required in order properly to reflect the extremely serious nature of the appellant's offending as a whole in respect of Ms M and Ms Dodd and to give effect to all relevant sentencing considerations. The overall total effective sentence bears a proper relationship to the criminality involved in all of the appellant's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the extremely serious character of the overall offending, the vulnerability of Ms M and Ms Dodd, the standards of sentencing customarily observed, the aggravating factors and the limited mitigation.
Further, in our opinion, the overall total effective sentence of 30 years' imprisonment does not infringe the second limb of the totality principle. Unfortunately, from the appellant's perspective, the extremely serious nature of his offending, considered as a whole, and the necessity for appropriate punishment, denunciation of his criminal conduct and the demands of general deterrence, significantly reduced the extent to which humanitarian considerations could be accommodated in the overall sentencing disposition. Notwithstanding that it is possible that the appellant may die in custody or that upon release he may not have any prospect of a useful life, a more lenient overall total effective sentence was not appropriate.
The overall total effective sentence of 30 years' imprisonment did not infringe the first or the second limb of the totality principle. The overall total effective sentence was not unreasonable or plainly unjust. Error by his Honour in the exercise of his discretion cannot be inferred from the sentencing outcome.

Sentence appeal: ground 2: conclusion

Ground 2 of the sentence appeal has not been made out.

Sentence appeal: conclusion

Leave to appeal should be granted on each of the grounds in the sentence appeal. However, none of the grounds has been made out. The sentence appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YK
Associate to the Honourable President Buss
2 MAY 2023

Annexure 1 – Map of Badgingarra (Exhibit 3)

Annexure 2 – Map of North West Road and surrounding roads (Exhibit 5)

Annexure 3 – Map annotated by David Stribley (Exhibit 63)

Annexure 4 – Map annotated by Norman Smith (Exhibit 70)

Annexure 5 – Photographs of Mr McConnell’s vehicle (Exhibit 38)

Annexure 6 – The appellant’s section 32 admissions (Exhibit 1)