Wark v The State of Western Australia [No 2]
[2023] WASCA 67
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WARK -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASCA 67
CORAM: BUSS P
HEARD: 19 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 : IND 370 of 2016
Catchwords:
Courts and judicial system - Judges - Application for disqualification of judge on ground of apprehended bias - Presumed knowledge or awareness of hypothetical fair‑minded lay observer - Whether reasonable apprehension of bias
Legislation:
Criminal Code (WA), s 278 (repealed)
Evidence Act 1906 (WA), s 31A
Result:
Refusal of disqualification
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):
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polites; ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
BUSS P:
The appellant has appealed against conviction and sentence.
On 31 March 2021, after a retrial before Hall J and a jury, the appellant was found not guilty of having murdered Hayley Marie Stephenson (also known as Hayley Marie Dodd), but guilty of her manslaughter.
I will refer to the deceased as Ms Dodd.
On 13 April 2021, Hall J sentenced the appellant to 18 years' imprisonment with eligibility for parole.
On 19 and 20 May 2022, Mazza and Vaughan JJA and I heard the appeals and reserved judgment.
On 19 May 2022, when the appeals were called for hearing, counsel for the appellant made an oral application to the effect that Mazza JA and I should disqualify ourselves from hearing the appeals. After counsel for the appellant made submissions, I refused to disqualify myself. I stated that I would publish reasons for decision at a later date. These are my reasons.
The appellant's original trial and his original appeal against conviction
The appellant was originally tried on an indictment which alleged, relevantly, that on or about 29 July 1999 the appellant wilfully murdered Ms Dodd, contrary to s 278 (as enacted at the material time but now repealed) of the Criminal Code (WA).
On 22 January 2018, after a trial before Jenkins J alone without a jury, the appellant was found not guilty of having wilfully murdered Ms Dodd, but guilty of her murder.
Her Honour sentenced the appellant to life imprisonment with a minimum non‑parole period of 21 years.
The appellant appealed to this court against his original conviction on seven grounds.
The appellant's seven grounds of appeal were as follows.
Ground 1 alleged that Jenkins J erred in fact in finding that the appellant's alibi was false and that there was no reasonable possibility that it was true, when her Honour should have found that the State had failed to prove beyond reasonable doubt that the alibi was false, which finding occasioned a miscarriage of justice.
Ground 2 alleged that her Honour erred in fact in finding that the appellant had the opportunity to encounter Ms Dodd on North West Road, when her Honour should have found that the State had failed to prove that fact beyond reasonable doubt, which finding occasioned a miscarriage of justice.
Ground 2A alleged that her Honour erred in fact in finding that it was not a reasonable possibility that the earring found on the seat cover of the vehicle driven by the appellant on 29 July 1999 belonged to anyone other than Ms Dodd, having regard to her Honour's finding that the appellant had the opportunity to pick up Ms Dodd, which finding occasioned a miscarriage of justice.
Ground 3 alleged 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 in 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 visited all of the businesses that he told police he had visited, or the times he did 'certain things', without 'independent proof' or 'independent evidence'.
Ground 4 alleged that the decision to admit evidence at the appellant's trial, pursuant to s 31A of the Evidence Act 1906 (WA), that on 1 June 2007 he had detained, assaulted and sexually assaulted a female hitchhiker (Ms M) in Queensland constituted a wrong decision on a question of law or the admission of that evidence at the trial occasioned a miscarriage of justice. Ground 4 was supported by two particulars. The first particular asserted that the evidence was not 'significantly probative' for the purposes of s 31A(2)(a) of the Evidence Act. The second particular asserted that her Honour erred in using evidence that the appellant had forced Ms M to give him an earring as evidence that the appellant had the propensity to seek an earring from female hitchhikers whom he had violently assaulted.
Ground 5 alleged that her Honour erred in fact, or in fact and law, resulting in a miscarriage of justice, by taking into account the absence of any 'evidence of any change to [the appellant's] character or life which would justify [her Honour] finding that [the appellant] developed this propensity between 1999 and 2007' in weighing the probative value of the evidence of the appellant's conduct on 1 June 2007 in Queensland.
Ground 6 alleged that the verdict of guilty, upon which the conviction of murder was based, was unreasonable or cannot be supported having regard to the evidence. The particulars of ground 6 asserted that it was not open to her Honour to conclude beyond reasonable doubt that the appellant killed Ms Dodd.
On 21 February 2020, Mazza and Beech JJA and I allowed the original conviction appeal on the basis of ground 3. See Wark v The State of Western Australia.[1]
[1] 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.
As to ground 4:
(a)I was satisfied that the propensity evidence had significant probative value [329] ‑ [337];
(b)I was satisfied that the probative value of the propensity evidence, compared to the degree of risk of an unfair trial, was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial [338]; and
(c)I was satisfied that the decision to admit the propensity evidence at the trial did not constitute a wrong decision on a question of law and did not occasion a miscarriage of justice [339].
As to ground 6, upon my review of the trial record and Jenkins J's reasons for judgment, I concluded [503] ‑ [507]:
Subject to my reasons and conclusions in relation to ground 3, her Honour was entitled to be satisfied beyond reasonable doubt, having regard to all of the facts and circumstances that were established by the evidence and have not been challenged or not challenged successfully in the appeal, including:
(a)Ms Dodd 'disappeared' between the location of the 961 marker and 2 km east of that location on North West Road between about 11.40 am and about 12.10 pm on 29 July 1999;
(b)Ms Dodd must have been picked up on North West Road at that time by a person who had a motor vehicle;
(c)Ms Dodd is dead;
(d)the person with a motor vehicle who picked up Ms Dodd was responsible for her death;
(e)on 29 July 1999, the appellant was driving Mr McConnell's vehicle;
(f)the appellant's alleged alibi was false;
(g)the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at 'about 12.05 pm';
(h)at that time the appellant was alone in Mr McConnell's vehicle;
(i)the earring on the seat cover seized by the police from Mr McConnell's vehicle belonged to Ms Dodd;
(j)the propensity evidence established that in 1999 the appellant had the highly significant inclination or predisposition to which I have referred at [320] above;
(k)the appellant had sufficient time between encountering Ms Dodd on North West Road on 29 July 1999, on the one hand, and his arrival at the Badgingarra roadhouse at 1.36 pm on that date, on the other, to kill Ms Dodd and dispose of her body; and
(l)there were other people who theoretically could have been responsible for Ms Dodd's disappearance, but there was no evidence that any other people were involved in her disappearance,
that the appellant had unlawfully killed Ms Dodd, with the requisite intention for murder or in circumstances sufficient to constitute murder.
Subject to my reasons and conclusions in relation to ground 3, I am satisfied, after examining the trial record and weighing the evidence, that it was reasonably open to the trial judge to reject the appellant's defence and to be satisfied beyond reasonable doubt that he was guilty of murder.
Subject to my reasons and conclusions in relation to ground 3, a tribunal of fact, acting reasonably, was not precluded by the state of the evidence at trial (including, for example, the absence of direct evidence of guilt and the absence of a body or any evidence as to a cause of death) from convicting the appellant of murder. Subject to my reasons and conclusions in relation to ground 3, a tribunal of fact, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of all the facts and circumstances established by the evidence, that the appellant unlawfully killed Ms Dodd in circumstances constituting the offence of murder.
Subject to my reasons and conclusions in relation to ground 3:
(a)The trial record does not require the conclusion that the trial judge must necessarily have entertained a doubt about the appellant's guilt.
(b)The verdict of guilty of murder was not unreasonable.
(c)The verdict was supported by evidence that her Honour was entitled to accept and inferences that her Honour was entitled to draw.
(d)After paying full regard to the consideration that her Honour was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that her Honour had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction.
(e)It would not be dangerous to permit the verdict to stand.
Finally, in connection with ground 6, I emphasise that my reasons and conclusions in relation to ground 3 do not mean that it was not open to a tribunal of fact, acting reasonably and in accordance with all relevant and appropriate directions of law, to be satisfied beyond reasonable doubt that the appellant's alibi was false. As I have mentioned, the evidence in relation to the earring on the seat cover seized by the police from Mr McConnell's vehicle on 6 August 1999 (in combination with the propensity evidence) was of critical significance in the State's circumstantial case against the appellant. All of that evidence could and, in my opinion, should have been used by her Honour in deciding whether the State had disproved the appellant's alibi beyond reasonable doubt.
I decided that leave to appeal should be granted on each of the grounds of appeal, the original conviction appeal should be allowed on the basis of ground 3 and the judgment of conviction should be set aside [509].
I then turned to consider whether the court should enter a judgment of acquittal or order a new trial [510]. I was satisfied, for five reasons, that a judgment of acquittal should not be entered and that a new trial should be ordered [518]. Those five reasons included that there was no apparent defect in the State's case and that '[t]he admissible evidence adduced at the original trial was sufficiently cogent to support a conviction on the charged offence' [522].
The appellant's grounds of appeal in his current appeal against conviction
In his current 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 retrial, pursuant to s 31A of the Evidence Act, that on 1 June 2007 the appellant had detained, assaulted and sexually assaulted Ms M occasioned a miscarriage of justice.
Counsel for the appellant's submissions on the disqualification application
Counsel for the appellant submitted that, having regard to [503] ‑ [507] of my reasons for judgment in the original conviction appeal (see [22] above), a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide in the context of ground 1 of the current conviction appeal because ground 1 in the current conviction appeal is relevantly identical to ground 6 of the original conviction appeal (appeal ts 2 ‑ 3).
Counsel for the appellant said that the disqualification application did not rely upon any coincidence between ground 2 of the current conviction appeal and ground 4 of the original conviction appeal (appeal ts 3 ‑ 4).
The function of an intermediate court of appeal in determining whether a verdict of guilty is unreasonable or cannot be supported
It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[2] Zaburoni v The Queen;[3] GAX v The Queen.[4]
[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ).
[3] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).
[4] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[5]
[5] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[6]
[6] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[7] SKA [13].
[7] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.[8]
[8] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46], [48] (Gummow, Hayne & Crennan JJ).
In R vBaden‑Clay,[9] French CJ, Kiefel, Bell, Keane and Gordon JJ made these observations in relation to determining whether, in a circumstantial evidence case, a reasonable inference consistent with the accused's innocence is open:
For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King (1911) 13 CLR 619, 661, quoted in Barca v The Queen (1975) 133 CLR 82, 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier (2007) 228 CLR 618, 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535).
[9] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].
In Pell v The Queen,[10] the High Court made these statements about the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)
[10] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. See Dansie v The Queen.[11] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the [fact finding tribunal] can be taken to have had by reason of having seen and heard the evidence at trial': Dansie [16].
[11] Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. See M (494 ‑ 495); Hillier[20]; Fitzgerald v The Queen;[12] Baden‑Clay [66].
[12] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[13] GAX [25].
[13] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).
The nature and extent of the appellate court's task, in a particular case, will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
The principles that apply where the tribunal of fact is a judge sitting alone are analogous to the principles that apply where the tribunal of fact is a jury. See Filippou v The Queen.[14]
[14] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [8] ‑ [12] (French CJ, Bell, Keane & Nettle JJ).
The relevant legal principles concerning disqualification on the ground of apprehended bias
The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. See Webb v The Queen;[15] Ebner v Official Trustee in Bankruptcy;[16] Johnson v Johnson;[17] Michael Wilson & Partners Limited v Nicholls.[18]
[15] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 ‑ 68 (Deane J).
[16] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
[17] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[18] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [31] (Gummow A‑CJ, Hayne, Crennan & Bell JJ).
The application of the test does not involve a prediction about how the judge will in fact approach the resolution of the question. The issue is one of possibility (real and not remote), not probability. See Ebner [7].
However, a judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless substantial grounds are established. See Bienstein v Bienstein.[19] As Mason J observed in Re JRL; ex parte CJL:[20]
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
See also British American Tobacco Australia Services Limited v Laurie.[21]
[19] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36] (McHugh, Kirby & Callinan JJ).
[20] Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.
[21] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 [45] (French CJ), [71] (Gummow J).
Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party. See Re JRL; ex parte CJL (352); Re Polites; ex parte The Hoyts Corporation Pty Ltd.[22]
[22] Re Polites; ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86 (Brennan, Gaudron & McHugh JJ).
The test for apprehended bias is objective. This is founded in the need for public confidence in the judiciary and gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. The neutrality of a judge is fundamental to the administration of justice. See Johnson [12]; British American Tobacco [139] (Heydon, Kiefel and Bell JJ); Michael Wilson & Partners [32]; Isbester v Knox City Council.[23]
[23] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23] (Kiefel, Bell, Keane & Nettle JJ).
The determination of whether a fair‑minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice raises largely a factual issue, but one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision. See Isbester [20].
Although the hypothetical fair‑minded lay observer is not to be taken to have a detailed knowledge of the law, the observer is presumed:
(a)to be reasonable;
(b)not to make snap judgments;
(c)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and
(d)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.
See Livesey v The New South Wales Bar Association;[24] Laws v Australian Broadcasting Tribunal;[25] Re JRL (368) (Brennan J), (371 ‑ 372) (Dawson J); Webb (67 ‑ 68); Johnson [12] ‑ [14]; Isbester [23].
[24] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 ‑ 294 (Mason, Murphy, Brennan, Deane & Dawson JJ).
[25] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 ‑ 88 (Mason CJ and Brennan J), 95 (Deane J).
In Ebner [8], Gleeson CJ, McHugh, Gummow and Hayne JJ said that the application of the test for apprehended bias requires two steps. First, the identification of what allegedly might lead a judge to decide a case other than on its legal and factual merits. Secondly, the articulation of the logical connection between the matter complained of and any deviation from the course of deciding the case on its merits. The reasonableness of the asserted apprehension of bias can only be assessed after the two steps have been performed. See also Isbester [21].
In Minister for Immigration and Multicultural Affairs v Jia Legeng,[26] Hayne J observed that an assertion that a decision-maker has prejudged or will prejudge an issue, and an assertion that there is a real likelihood that a fair-minded lay observer might reasonably apprehend that the decision-maker might not act impartially and without prejudice, in effect makes a statement which has several distinct elements at its foundation. His Honour elaborated:
First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[26] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185].
The merits of the disqualification application
In my opinion, the hypothetical fair‑minded lay observer should be presumed to know or be aware of all the objective circumstances of the present case.
The objective circumstances of the present case of which the hypothetical fair‑minded lay observer should be presumed to know or be aware of include:
(a)The appellant's original trial before Jenkins J was a trial before her Honour alone without a jury. Her Honour published reasons for judgment which included the principles of law that she had applied and the findings of fact on which she had relied. Her Honour's verdict was not inscrutable.
(b)The appellant's retrial before Hall J was a trial before his Honour and a jury. The jury was not obliged to deliver a judgment which included the principles of law that the jury had applied or the findings of fact on which the jury had relied. The jury's verdict was inscrutable.
(c)At the original trial the appellant was charged with wilful murder and convicted of murder.
(d)At the retrial the appellant was charged with murder and convicted of manslaughter.
Further, the objective circumstances of the present case of which the hypothetical fair‑minded lay observer should be presumed to know or be aware of include:
(a)There were material differences between the body of evidence given by the lay witnesses at the original trial and the body of evidence given by the lay witnesses at the retrial.
(b)There were material differences between the body of evidence given by the police witnesses at the original trial and the body of evidence given by the police witnesses at the retrial.
(c)There were material differences between the body of evidence given by the expert witnesses at the original trial and the body of evidence given by the expert witnesses at the retrial.
(d)There were material differences between the body of exhibits tendered at the original trial and the body of exhibits tendered at the retrial.
Attached to these reasons and marked 'Annexure 1' is a schedule which contains the names of the lay witnesses who gave evidence at the original trial and the names of the lay witnesses who gave evidence at the retrial. Where a witness gave evidence, in the same format, at both trials the name of the witness has been shaded in green. Where a witness gave evidence at both trials, but in a different format, the name of the witness has been shaded in yellow. Where a witness did not give evidence at both trials the name of the witness has been shaded in red.
For example:
(a)the appellant did not give evidence at the original trial, but he did give evidence at the retrial;
(b)Ms M gave evidence by means of a statement of agreed facts and examination in chief (without any cross‑examination) at the original trial, but she gave pre‑recorded evidence (and was cross‑examined) at the retrial; and
(c)the appellant called numerous witnesses at the retrial who were not called at the original trial.
Attached to these reasons and marked 'Annexure 2' is a schedule which contains the names of the police witnesses who gave evidence at the original trial and the names of the police witnesses who gave evidence at the retrial. Where a witness gave evidence, in the same format, at both trials the name of the witness has been shaded in green. Where a witness gave evidence at both trials, but in a different format, the name of the witness has been shaded in yellow. Where a witness did not give evidence at both trials the name of the witness has been shaded in red.
Attached to these reasons and marked 'Annexure 3' is a schedule which contains the names of the expert witnesses who gave evidence at the original trial and the names of the expert witnesses who gave evidence at the retrial. Where a witness gave evidence, in the same format, at both trials the name of the witness has been shaded in green. Where a witness gave evidence at both trials, but in a different format, the name of the witness has been shaded in yellow. Where a witness did not give evidence at both trials the name of the witness has been shaded in red.
In particular:
(a)the State called Professor David Balding as an expert witness at the retrial, but did not call him at the original trial; and
(b)the appellant called Dr Dan Krane as an expert witness at the retrial, but did not call him at the original trial.
Annexed to these reasons and marked 'Annexure 4' is a schedule which lists the exhibits that were tendered at the original trial and indicates whether those exhibits were also tendered at the retrial. Where an exhibit was tendered at the original trial and also tendered at the retrial the exhibit numbers and descriptions are shaded in green. Where an exhibit was tendered at the original trial, but was not tendered at the retrial, the exhibit number at the original trial and the description of the exhibit are shaded in yellow.
Attached to these reasons and marked 'Annexure 5' is a schedule which lists the exhibits that were tendered at the retrial, but were not tendered at the original trial.
In particular:
(a)numerous exhibits were tendered by each of the State and the appellant at the original trial that were not tendered at the retrial; and
(b)numerous exhibits were tendered by each of the State and the appellant at the retrial that were not tendered at the original trial.
There are significant differences between the trial record at the original trial and the trial record at the retrial.
I am satisfied that there is no proper basis upon which a fair‑minded lay observer, who knows or is aware of all the objective circumstances of the case, including the matters set out at [53] and [54] above, might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I would be required to decide, in the context of ground 1 of the current conviction appeal, if I sat as a member of the court hearing the current conviction appeal.
My reasons are as follows.
The court, in determining ground 1 of the current conviction appeal, must decide whether, having regard to the evidence adduced at the retrial, the verdict of guilty on which the conviction for manslaughter is based is unreasonable or cannot be supported. The
court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence adduced at the retrial. The court must examine the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the retrial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt. The court's function is to determine for itself whether the evidence at the retrial was sufficient in nature and quality to remove any reasonable doubt as to the appellant's guilt of the offence of manslaughter.
The court, in making an independent assessment of the sufficiency and quality of the evidence, must have regard solely to the trial record at the retrial.
The trial record at the original trial is irrelevant to the court's function in determining ground 1 of the current conviction appeal.
As I have mentioned, there are significant differences between the trial record at the original trial and the trial record at the retrial.
There is no logical connection between the passages at [503] ‑ [507] of my reasons in the original conviction appeal on the one hand, having regard to the content of the trial record at and the nature of the original trial (being a trial before a judge alone without a jury) compared to the content of the trial record at and the nature of the retrial (being a trial before a judge and a jury), and any deviation from the course of deciding ground 1 of the current conviction appeal on its merits, on the other. There is no reasonable basis for the asserted apprehension of bias.
I am therefore satisfied that I should not disqualify myself.
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 - Lay witnesses who gave evidence at the original trial and lay witnesses who gave evidence at the retrial
| First Trial – Trial by Judge Alone Jenkins J | Second Trial – Trial by Jury Hall J | |
| Lay-witnesses | ||
| State | Margaret Elizabeth Dodd (witness statements) | Margaret Elizabeth Dodd |
| Shantell Francis Louise Boothey (witness statements) | Shantell Francis Louise Boothey (witness statements) | |
| Toni Anne Stephenson (witness statements) | Toni Anne Stephenson (witness statements) | |
| Byron James Dodd (witness statement) | Byron James Dodd (witness statement) | |
| Reanne Ethel Dodd (witness statement) | Reanne Ethel Dodd (witness statement) | |
| Lisa Marie Fredrickson | Lisa Marie Fredrickson | |
| Jamie Anthony Hutchinson (witness statement) | Jamie Anthony Hutchinson | |
| Zandrea Louise Morgan | Zandrea Louise Morgan-Elson | |
| Helen Louise James | Helen Louise James | |
| Olive Lynette Ward | Olive Lynette Ward | |
| Geoffrey Joseph Mulroy | Geoffrey Joseph Mulroy (witness statements) | |
| Bradley Geoffrey Hammond | Bradley Geoffrey Hammond | |
| Stanley Keith Hammond (witness statements) | Stanley Keith Hammond (witness statements) | |
| Linley Grace Bell (witness statement) | Linley Grace Bell (witness statement) | |
| Donald Wayne Spry | Donald Wayne Spry | |
| Margaret King (witness statement) | Margaret King (witness statement) | |
| Albert Hall Rowland (witness statement) | Albert Hall Rowland (witness statement) | |
| Eva Gerrard (witness statement) | Eva Gerrard (witness statement) | |
| John Alexander Piper | John Alexander Piper | |
| Michael John Russell (witness statement) | Michael John Russell (witness statement) | |
| Paul Joseph Wilkins (witness statement) | Paul Joseph Wilkins (witness statement) | |
| Fiona Ellen Weaver | Fiona Ellen Weaver | |
| Mark Christopher Weaver | Mark Christopher Weaver | |
| Gina Kenny (witness statement) | Gina Kenny | |
| Margaret Anne Johnson | Margaret Anne Johnson | |
| David Michael Skipworth | David Michael Skipworth | |
| Carl Adrian Moltoni | Carl Adrian Moltoni | |
| Geoffrey Michael Wyatt | Geoffrey Michael Wyatt | |
| Nigel Joseph Johannes Streppel | Nigel Joseph Johannes Streppel | |
| Eileen Jane Purser (witness statements) | Eileen Jane Purser | |
| Timothy Jankowski | Timothy Jankowski | |
| Donald Victor Cheek (witness statement) | Donald Victor Cheek | |
| Laurie Edward Giles (witness statement) | Laurie Edward Giles (witness statement) | |
| Leonard John Hale (witness statement) | Leonard John Hale (witness statement) | |
| Stephen Edward Koeberle | Stephen Edward Koeberle | |
| David Leslie Stribley | David Leslie Stribley | |
| Sarah Jane Knight | ||
| Norman Robin Alexander Smith | Norman Robin Alexander Smith | |
| Kim Annette Smith | Kim Annette Smith | |
| Timothy Gordon Peacock | Timothy Gordon Peacock | |
| Peter David Westbrook | Peter David Westbrook (witness statement) | |
| Sue Anne Westbrook | Sue Anne Westbrook (witness statement) | |
| Kenneth William Barrett (witness statements) | Kenneth William Barrett | |
| Lorna Christine Andrijich (witness statement) | Lorna Christine Andrijich (witness statement) | |
| David Neil Martin (witness statement) | David Neil Martin | |
| Lyall Edward Schwan (witness statement) | Lyall Edward Schwan | |
| Peter Andrew Boucher (witness statement) | Peter Andrew Boucher (witness statement) | |
| Robert Bruce Calder Smith | Robert Bruce Calder Smith | |
| Graham Michael Burnett | Graham Michael Burnett | |
| Terrence Michael Jones | ||
| Melinda Jayne Borwick (witness statement) | Melinda Jayne Borwick (witness statement) | |
| Clark Thomas Skinner (witness statement) | Clark Thomas Skinner | |
| Peter David Russell (witness statement) | Peter David Russell (witness statement) | |
| Bradley John Davies (witness statement) | Bradley John Davies (witness statement – note 1 x paragraph struck out) | |
| John Robert McConnell (witness statements) | John Robert McConnell (witness statements) | |
| Catherine Mary Edwards | Catherine Mary Edwards | |
| Travis John Paul Dunn (witness statements) | Travis John Paul Dunn | |
| Bronwyn Dallas Brown | Bronwyn Dallas Brown | |
| Jamie Andrew Smith | Jamie Andrew Smith | |
| Graeme David Ellis | Graeme David Ellis | |
| Alexander Ian McCooke | Alexander Ian McCooke | |
| Diane Winifred Stewart | ||
| Kerren Ellen Benning | ||
| Christine Gaye McCooke (witness statements) | Christine Gaye McCooke | |
| Maria Natalie Russell | Maria Natalie Russell | |
| Wayne Edward Molloy | ||
| Bevan Richard Newham (witness statement) | ||
| Paul Anthony Springer | Paul Anthony Springer | |
| Robyn Gayle Crouch | Robyn Gayle Crouch | |
| Angela May Wilkinson | Angela May Wilkinson | |
| Matthew Alan Newman | ||
| Leif Eric Rubenis (EFTPOS expert) | ||
| Darren John Greay | Darren John Greay | |
| Terrence John Hughan | Terrence John Hughan | |
| Kahu Smiler | ||
| Ms M (statement of agreed facts + XN) | Ms M (pre-recorded evidence) | |
| Andrew James McCooke | ||
| Defence | Sean Harley Troy (witness statement) | Sean Harley Troy (witness statement) |
| Jason Luke Rogers | Jason Luke Rogers | |
| Keith Lesley Skelley | Keith Lesley Skelley | |
| David Jose Castanheira | ||
| Nicola McNamara | ||
| Christopher William Blair | ||
| Larry Ronald Puls | ||
| Francis John Wark | ||
| David Peter Moltoni | ||
| Robert Wayne Sewell | ||
| Robert Bruce Calder Smith | ||
| Kristy Nicole Treen | ||
| Colleen Alana Treen | ||
| Bradley John Davies | ||
| Douglas Edward Davey | ||
Annexure 2 - Police witnesses who gave evidence at the original trial and police witnesses who gave evidence at the retrial
| First Trial – Trial by Judge Alone Jenkins J | Second Trial – Trial by Jury Hall J | |
| Police officers | ||
| State | Tracy Lorraine Ferris | Tracy Lorraine Ferris |
| Adam James McCulloch | Adam James McCulloch | |
| John Norman Ashworth | John Norman Ashworth | |
| Shane Geoffrey Wheeler (witness statement) | Shane Geoffrey Wheeler (witness statement) | |
| Christopher John Cubbage | Christopher John Cubbage | |
| Matthew David Turner (witness statement) | Matthew David Turner (witness statement) | |
| Edward Jorge Thomas Rowe | Edward Jorge Thomas Rowe | |
| Shane Leslie Graham | Shane Leslie Graham | |
| Kornelis Christianus Prins | Kornelis Christianus Prins | |
| Craig Digory Keals | Craig Digory Keals | |
| Aaron James Cleaver | Aaron James Cleaver | |
| Robert John Borbely | ||
| John Robert Davison (forensic police officer) | John Robert Davison (forensic police officer) | |
| Alexander Elliott (forensic police officer) | Alexander Elliott (forensic police officer) | |
| Stephen Marshall Coleman (forensic exhibits officer) | Stephen Marshall Coleman (forensic exhibits officer) | |
| Grant Kenneth Taylor | ||
| Paul Reed | ||
| Phillip Alexander Ward | Phillip Alexander Ward | |
| Colynn Phillip Rowe | Colynn Phillip Rowe | |
| Raymond Douglas Whitehead | Raymond Douglas Whitehead | |
| Craig Kenneth John Scott (unsworn police officer) | Craig Kenneth John Scott (unsworn police officer) | |
| George Burns Paton | ||
| Francis Robert Whitford | Francis Robert Whitford | |
| Rodney William Harris | Rodney William Harris | |
| Christopher John Rainford | Christopher John Rainford | |
| Lee-Anne Sadlier | Lee-Anne Sadlier | |
| Paul Johnson (witness statement) | Paul Johnson (witness statement) | |
| Claire Lydia Mustafa | Claire Lydia Heinz (née Mustafa) | |
| Gavin John Fisher (forensic police officer) | Gavin John Fisher (forensic police officer) | |
| Michael Anthony Hill | Michael Anthony Hill | |
| Debra Bowen (witness statement) | ||
| Matthew James Sullivan | Matthew James Sullivan | |
| Timothy Heinz (forensic investigation officer) | Timothy Heinz (forensic investigation officer) | |
| Lysle Phillip Cubbage | ||
| Kim Massam | ||
| Geoffrey John Buck | Geoffrey John Buck | |
| Mitchell Wayne Howard | ||
| Darryl Wayne Cox | Darryl Wayne Cox | |
| Darren John Bethell | Darren John Bethell | |
| Darren Keith Harston | Darren Keith Harston | |
| Ryan Ernest Murphy (witness statement) | Ryan Ernest Murphy (witness statement) | |
| Mark David Frankland | Mark David Frankland | |
| Debbie Louise Chapman | Debbie Louise Chapman | |
| David Charles Shepherd (witness statement) | ||
Annexure 3 - Expert witnesses who gave evidence at the original trial and expert witnesses who gave evidence at the retrial
| First Trial – Trial by Judge Alone Jenkins J | Second Trial – Trial by Jury Hall J | |
| Pathwest | ||
| State | Natalie Jane Di Pietro (witness statement) | Natalie Jane Di Pietro (witness statement) |
| Carolyn Joy Jones | Carolyn Joy Jones | |
| Tracy Louise Horner | Tracy Louise Horner | |
| Scott Elliot Egan | Scott Elliot Egan | |
| DNA experts | ||
| State | Andrew John McDonald | Andrew John McDonald |
| Dadna Hartman | Dadna Hartman | |
| Michael Harvey Walbank | ||
| David Joseph Balding | ||
| Defence | Allan Jamieson | Allan Jamieson |
| Dan Edward Krane | ||
Annexure 4 - Exhibits that were tendered at the original trial and whether those exhibits were also tendered at the retrial
| First Trial – Trial by Judge Alone – Jenkins J | |||
| Exhibit | Description | Tenderer | Exhibit number in second trial |
| 2.1 | Handwritten statement of Margaret Elizabeth Dodd | State | N/A |
| 2.2 | Typed statement of Margaret Elizabeth Dodd dated 20.08.1999 | State | N/A |
| 2.3 | Additional statement of Margaret Elizabeth Dodd dated 29.10.2015 | State | N/A |
| 2.4 | Additional statement of Margaret Elizabeth Dodd dated 28.09.2017 | State | N/A |
| 3.1 | Photograph of post card addressed to 20 Tuart Road, Mandurah | State | Exhibit 8 – same postcard, but one exhibit was the actual postcard and one was just 3x photographs of the postcard |
| 3.2 | Photograph of post card addressed to 20 Tuart Road, Mandurah | State | |
| 3.3 | Photograph of post card addressed to 20 Tuart Road, Mandurah | State | |
| 3.4 | Photograph of post card addressed to 20 Tuart Road, Mandurah | State | |
| 4.1 | Two photographs of birthday card | State | Exhibit 9 |
| 4.2 | Two photographs of birthday card | State | |
| 5 | Photograph of white vehicle signed by Margaret Elizabeth Dodd | State | Exhibit 10 |
| 6.1 | Two photographs of Hayley Dodd | State | Exhibit 7 |
| 6.2 | Two photographs of Hayley Dodd | State | |
| 7.1 | Handwritten statement of Shantell Francis Louise Boothey dated 18.08.1999 | State | N/A |
| 7.2 | Typed statement of Shantell Francis Louise Boothey dated 23.08.1999 | State | N/A |
| 8.1 | Handwritten statement of Toni Anne Stephenson dated 20.08.1999 | State | N/A |
| 8.2 | Typed statement of Toni Anne Stephenson - undated | State | N/A |
| 8.3 | Further statement of Toni Anne Stephenson dated 29.10.2015 | State | N/A |
| 9 | Endorsed photograph of Holden ute by Toni Anne Stephenson dated 29.10.2015 | State | Exhibit 13 |
| 10 | Statement of Byron James Dodd dated 29.10.2015 | State | N/A |
| 11 | Endorsed photographs of Holden ute dated and signed 29.10.2015 by Byron James Dodd | State | Exhibit 14 |
| 12 | Statement of Reanne Ethel Dodd dated 30.10.2015 | State | N/A |
| 13 | Endorsed photographs of holden ute dated 30.10.2015 by Reanne Ethel Dodd | State | Exhibit 15 |
| 14 | Schedule of relevant telephone numbers and calls | State | N/A |
| 15 | 1999 distance map of the Greater South West | State | Exhibit 2 |
| 16 | Road satellite map from Moora to Badgingarra | State | Exhibit 4 |
| 17.1 | Road map from Badgingarra to Moora | State | Exhibit 5 |
| 17.2 | Road map overlayed with distances | State | N/A |
| 18 | Badgingarra town site map | State | Exhibit 3 |
| 19 | Moora town site map | State | Exhibit 6 |
| 20 | Farm map | State | Exhibit 36 |
| 21 | Photograph of backpack | State | Exhibit 16 |
| 22 | Photograph of Lisa Marie Fredrickson's Dunlop jacket | State | Exhibit 17 |
| 23 | Map of Western Australia shown to Lisa Marie Fredrickson | State | Exhibit 18 |
| 24 | Photograph of Hayley Dodd’s Bankwest key card and transaction record from 29.07.1999 | State | Exhibit 19 |
| 25 | Drawings of Hayley Dodd’s jewellery | State | Exhibit 23 |
| 26.1 | Signed statement of Jamie Anthony Hutchinson dated 17.08.1999 | State | N/A |
| 26.2 | Unsigned typed statement of Jamie Anthony Hutchinson | State | N/A |
| 27 | Receipt 1999/465880 | State | Exhibit 28 |
| 28 | 2 x photographs of a pair of jeans | State | Exhibit 26 (with 1 additional photograph of purse) |
| 29 | Photograph of black singlet top | State | |
| 30 | Photograph of sunglasses | State | |
| 31 | DVD footage of the Badgingarra area in July 2001 | State | Exhibit 30 |
| 32 | 4 x photographs of Badgingarra | Defence | Exhibit 31 |
| 33.1 | Statement of John Norman Ashworth dated 20.10.2015 | State | N/A |
| 33.2 | Statement of John Norman Ashworth dated 03.02.2016 | State | N/A |
| 34 | 5-page property receipt details | State | Exhibit 81 & 82 |
| 35 | Property transfer history | State | Exhibit 25 |
| 36 | Series of 3 photographs endorsed by Helen Louise James | State | Exhibit 40 |
| 37 | Farm map identified by Bradley Geoffrey Hammond | State | Exhibit 35 |
| 38 | Screenshot of three males from video footage | State | Exhibit 32 |
| 39 | Still of Bradley Geoffrey Hammond’s car | State | Exhibit 33 |
| 40 | Screenshot of the accused’s home | State | Exhibit 34 |
| 41 | Photographs of ute signed by Bradley Geoffrey Hammond | State | Exhibit 38 |
| 42.1 | Handwritten statement of Stanley Keith Hammond dated 30.07.1999 | State | N/A |
| 42.2 | Typed statement of Stanley Keith Hammond | State | N/A |
| 43.1 | Handwritten statement of Stanley Keith Hammond dated 30.07.1999 at 6.50pm | State | N/A |
| 43.2 | Typed edited statement of Stanley Keith Hammond dated 30.07.1999 at 6.50pm | State | N/A |
| 44 | Statement of Stanley Keith Hammond dated 3.08.1999 | State | N/A |
| 45.1 | Call charge record for Stanley Keith Hammond | State | N/A |
| 45.2 | Reverse call charge record for Stanley Keith Hammond | State | N/A |
| 45.3 | Persons who called Stanley Keith Hammond | State | N/A |
| 46.1 | 2-page calendar year planner | State | Exhibit 41 |
| 46.2 | Term dates 1994-2000 | State | Exhibit 42 |
| 47.1 | Handwritten statement of Linley Grace Bell dated 5.08.1999 | State | N/A |
| 47.2 | Typed statement of Linley Grace Bell dated 10.08.1999 | State | N/A |
| 48.1 | Handwritten statement of Margaret King dated 30.07.1999 | State | N/A |
| 48.2 | Typed statement of Margaret King dated 14.09.1999 | State | N/A |
| 49.1 | Call charge record for the caravan park | State | N/A |
| 49.2 | Call charge record for Badgingarra public telephone box | State | N/A |
| 50.1 | Typed statement of Albert Rowland dated 31.07.1999 | State | N/A |
| 50.2 | Typed statement of Albert Rowland dated 1.09.1999 | State | N/A |
| 51 | Statement of Eva Gerrard dated 23.08.2000 | State | N/A |
| 52 | Copy of farm map identified by John Alexander Piper | State | Exhibit 44 |
| 53 | 2013 aerial photograph marked by John Alexander Piper | State | N/A |
| 54 | Road map marked by Mr Piper | State | Exhibits 45 & 46 |
| 55.1 | Handwritten statement of Michael John Russell dated 10.08.1999 | State | N/A |
| 55.2 | Typed statement of Michael John Russell dated 12.08.1999 | State | N/A |
| 55.3 | Statement of Michael John Russell dated 18.08.1999 | State | N/A |
| 55.4 | Statement of Michael John Russell dated 25.08.1999 | State | N/A |
| 56 | Statement of Paul Joseph Wilkins dated 27.08.2015 | State | N/A |
| 57 | Sketch drawn by Paul Joseph Wilkins | State | Exhibit 72 |
| 58 | Unmarked copy of 2013 aerial photograph | State | N/A |
| 59 | Statement of Gina Kenny dated 25.08.1999 | State | N/A |
| 60 | Schedule of distances | State | N/A |
| 61 | Photograph of Hayley Dodd endorsed by Margaret Anne Johnson on 1.08.1999 | State | Exhibit 49 |
| 62 | Aerial photograph marked by David Michael Skipworth | State | Exhibit 54 |
| 63 | Road map marked by David Michael Skipworth | State | Exhibit 53 |
| 64 | Copy of receipt dated 29.07.1999 | State | Exhibit 55 |
| 65 | Farm map marked by David Michael Skipworth | Defence | N/A |
| 66 | Road map marked by Carl Adrian Moltoni | State | Exhibit 51 |
| 67 | Aerial photograph marked by Carl Adrian Moltoni | State | Exhibit 52 |
| 68 | Road map marked by Geoffrey Michael Wyatt | State | Exhibit 56 |
| 69 | Receipt of Nigel Joseph Johannes Streppel dated 29.07.1999 | State | Exhibit 57 |
| 70.1 | Statement of Eileen Jane Purser dated 2.08.1999 | State | N/A |
| 70.2 | Statement of Eileen Jane Purser dated 10.08.1999 | State | N/A |
| 70.3 | Statement of Eileen Jane Purser dated 23.09.1999 | State | N/A |
| 71 | Aerial photograph marked by Timothy Jankowski | State | Exhibit 60 |
| 72 | Job sheets | State | N/A |
| 73.1 | Handwritten statement of Donald Victor Cheek dated 11.02.2002 | State | N/A |
| 73.2 | Typed statement of Donald Victor Cheek | State | N/A |
| 73.3 | Typed statement of Donald Victor Cheek dated 16.04.2002 | State | N/A |
| 74 | Copy of job sheet | State | N/A |
| 75.1 | Statement of Laurie Edward Giles dated 17.08.1999 | State | N/A |
| 75.2 | Statement of Laurie Edward Giles dated 21.05.2001 | State | N/A |
| 76 | Map of Shire of Dandaragan marked by Laurie Edward Giles | State | Exhibit 97 |
| 77.1 | Typed statement of Leonard John Hale dated 30.07.1999 | State | N/A |
| 77.2 | Typed statement of Leonard John Hale dated 04.08.1999 | State | N/A |
| 77.3 | Annotated statement of Leonard John Hale dated 31.07.1999 | State | N/A |
| 77.4 | Typed statement of Leonard John Hale dated 3.12.2001 | State | N/A |
| 78 | Sketch of glasses by Leonard John Hale | State | Exhibit 163 |
| 79 | Map marked by Leonard John Hale | State | Exhibit 162 |
| 80 | Map of work area marked by Leonard John Hale | State | Exhibit 164 |
| 81 | Aerial photograph marked by Stephen Edward Koberle | State | Exhibit 61 |
| 82 | Close up of part of Exhibit 15 | State | N/A |
| 83 | Farm map marked by David Leslie Stribley | State | Exhibit 62 |
| 84.1 | Bundle of photographs shown to David Leslie Stribley | State | Exhibit 66 |
| 84.2 | Bundle of photographs shown to David Leslie Stribley | State | |
| 84.3 | Bundle of photographs shown to David Leslie Stribley | State | |
| 84.4 | Bundle of photographs shown to David Leslie Stribley | State | |
| 84.5 | Bundle of photographs shown to David Leslie Stribley | State | |
| 85 | Map marked by David Leslie Stribley showing the vehicles he passed | State | Exhibit 67 |
| 86 | ABC The World Today transcript 29.07.1999 | State | Exhibit 68 |
| 87 | Receipt belonging to Norman Robin Alexander Smith | State | Exhibit 69 |
| 88 | Map of Badgingarra town site marked by Norman Robin Alexander Smith | State | Exhibit 70 |
| 89 | Road map marked by Norman Robin Alexander Smith marking where he saw the ute | State | Exhibit 71 |
| 92 | Farm map marked by Timothy Gordon Peacock | State | Exhibit 165 |
| 93 | Receipt from Rural Traders for 29.07.1999 | State | Exhibit 167 |
| 94 | Photograph of Timothy Gordon Peacock’s Ford Maverick Utility | Defence | Exhibit 220 |
| 95.1 | Series of photographs of Timothy Gordon Peacock’s ute | State | |
| 95.2 | Series of photographs of Timothy Gordon Peacock’s ute | State | |
| 95.3 | Series of photographs of Timothy Gordon Peacock’s ute | State | |
| 95.4 | Series of photographs of Timothy Gordon Peacock’s ute | State | |
| 96 | Fuel receipt for Peter David Westbrook | State | Exhibit 169 |
| 97.1 | Handwritten statement of Kenneth William Barrett dated 12.08.1999 | State | N/A |
| 97.2 | Timeline of Kenneth William Barrett dated 12.08.1999 | State | N/A |
| 97.3 | Typed statement of Kenneth William Barrett dated 13.12.1999 | State | N/A |
| 98 | Typed statement of Kenneth William Barrett dated 13.09.2017 | State | N/A |
| 99 | Call charge records of Kenneth William Barrett | State | N/A |
| 100.1 | Handwritten statement of Lorna Christine Andrijich dated 13.09.1999 | State | N/A |
| 100.2 | Typed statement of Lorna Christine Andrijich dated 23.09.1999 | State | N/A |
| 101 | Bankwest receipt endorsed by Ray Gibbs | State | Exhibit 166 |
| 102.1 | Handwritten statement of David Neil Martin dated 23.08.1999 | State | N/A |
| 102.2 | Typed statement of David Neil Martin dated 13.09.1999 | State | N/A |
| 102.3 | Typed statement of David Neil Martin dated 22.05.2001 | State | N/A |
| 103.1 | Handwritten statement of Lyall Edward Scwann dated 19.08.1999 | State | N/A |
| 103.2 | Typed statement of Lyall Edward Scwann dated 26.08.1999 | State | N/A |
| 104 | Dentist appointment book | State | Exhibit 218 |
| 105 | Badgingarra Rural Traders transaction sheet | State | Exhibit 167 |
| 106 | Badgingarra Rural Traders invoice dated 30.07.1999 | State | N/A |
| 107.1 | Handwritten statement of Peter Andrew Boucher dated 6.08.1999 | State | N/A |
| 107.2 | Handwritten narrative of Peter Andrew Boucher dated 6.08.1999 | State | N/A |
| 107.3 | Typed statement of Peter Andrew Boucher dated 10.09.1999 | State | N/A |
| 108 | Map marked by Robert Bruce Calder Smith | State | Exhibit 223 |
| 109 | Hand drawn map of where Robert Bruce Calder Smith saw the girl | Defence | Exhibit 224 |
| 110 | Jurien regional road map marked by Graham Michael Burnett | State | N/A |
| 111 | Marked copy of road map by Graham Michael Burnett | State | Exhibit 168 |
| 112 | Statement of Shane Geoffrey Wheeler dated 6.09.1999 | State | N/A |
| 113 | Service details relating to witness summons for Peter James Hewitt | State | N/A |
| 114 | WA Police file fact sheet – service of MDL | State | N/A |
| 115 | Diary entry of Terrence Michael Jones for 29.07.1999 | State | N/A |
| 116 | Shire of Dandaragan map marked by Terrence Michael Jones | State | N/A |
| 117.1 | Handwritten statement of Melinda Jayne Borwick 08.09.1999 | State | N/A |
| 117.2 | Typed unsigned statement of Melinda Jayne Borwick | State | N/A |
| 118 | Copy of the entry for 29.07.1999 for Moora doctors’ surgery | State | N/A |
| 119 | Medicare receipt | State | N/A |
| 120 | Receipt from Moora pharmacy | State | N/A |
| 121 | Statement of Clark Thomas Skinner dated 24.08.1999 | State | N/A |
| 122 | Copy of pages from Clark Thomas Skinner’s diary | State | N/A |
| 123 | Shire of Dandaragan map marked by Clark Thomas Skinner | State | Exhibit 173 |
| 124.1 | Handwritten statement of Peter David Russell dated 25.08.1999 | State | N/A |
| 124.2 | Typed statement of Peter David Russell dated 16.09.1999 | State | N/A |
| 125 | Statement of Bradley John Davies dated 6.02.2010 | State | N/A |
| 126.1 | Handwritten statement of John Robert McConnell 4.08.1999 | State | N/A |
| 126.2 | Handwritten statement of John Robert McConnell 11.08.1999 | State | N/A |
| 126.3 | Typed statement of John Robert McConnell 4.08.1999 | State | N/A |
| 127 | Typed statement of John Robert McConnell 15.09.1999 | State | N/A |
| 128 | Aerial photograph marked by Catherine Mary Edwards | State | Exhibit 170 |
| 129 | Statement of Travis John Paul Dunn dated 5.08.1999 | State | N/A |
| 130.1 | Statement of Travis John Paul Dunn dated 20.08.1999 | State | N/A |
| 130.2 | Statement of Travis John Paul Dunn dated 03.09.1999 | State | N/A |
| 131 | Statement of Travis John Paul Dunn dated 01.08.2000 | State | N/A |
| 132.1 | Purchaser’s receipt | State | Exhibit 172 |
| 132.2 | Australia Post records | State | |
| 133 | Farm map marked by Graeme David Ellis | State | Exhibit 178 |
| 134.1 | Images of Moora hospital location | Defence | N/A |
| 134.2 | Images of Moora hospital location | Defence | N/A |
| 134.3 | Images of Moora hospital location | Defence | N/A |
| 134.4 | Images of Moora hospital location | Defence | N/A |
| 135 | Street map of Moora marked by Graeme David Ellis | Defence | Exhibit 179 |
| 136.1 | Page from doctor’s progress notes | State | N/A |
| 136.2 | Diary entry for 29.07.1999 | State | N/A |
| 137 | Invoice/Statement | State | Exhibit 182 |
| 138.1 | Handwritten statement of Christine Gaye McCooke dated 5.08.1999 | State | N/A |
| 138.2 | Handwritten statement of Christine Gaye McCooke dated 12.08.1999 | State | N/A |
| 138.3 | Typed statement of Christine Gaye McCooke dated 26.08.1999 | State | N/A |
| 138.4 | Typed statement of Christine Gaye McCooke dated 7.09.1999 | State | N/A |
| 138.5 | Typed statement of Christine Gaye McCooke dated 17.09.1999 | State | N/A |
| 139 | Typed statement of Christine Gaye McCooke dated 19.12.2013 | State | N/A |
| 140 | Cash sale document dated 29.07.2017 | State | Exhibit 187 |
| 141 | Cash sale document for sale 136 dated 29.07.1999 | State | Exhibit 188 |
| 142 | Copy of EFTPOS transaction for 29.07.1999 at 12:26:42 | State | Exhibit 190 |
| 143 | Copy of EFTPOS receipt for 29.07.1999 at 11.43.10 | State | |
| 144 | Copy of EFTPOS receipt for 29.07.1999 at 11.00.46 | State | |
| 145.1 | 3-page document containing copies of receipts from the bakery | State | N/A |
| 145.2 | Marked up copy of 3-page document containing copies of receipts from the bakery | State | N/A |
| 146.1 | Wayne Edward Molloy's time sheet | State | N/A |
| 146.2 | Personnel change notice | State | N/A |
| 147 | Edited audio-visual interview with Wayne Edward Molloy dated 8.08.1999 | State | N/A |
| 148 | St John Ambulance record and covering fax sheet | State | Exhibit 174 |
| 149 | Handwritten statement of Francis John Wark dated 3.08.1999 | State | Exhibit 175 |
| 150 | Typed statement of Francis John Wark dated 5.08.1999 | State | Exhibit 177 |
| 151 | Property receipt for Australia Post money order | State | Exhibit 176 |
| 152 | Statement of Bevan Richard Newham dated 27.08.2014 | State | N/A |
| 153 | Sunrise and sunset data | State | N/A |
| 154 | Meteorology data | State | N/A |
| 155 | Extract of EX 20 marked and signed by Robyn Gale Crouch | State | N/A |
| 156 | Copy of EX 19 marked by Robyn Gale Crouch | State | N/A |
| 157 | Extract from the school’s administrative notebook | State | N/A |
| 158 | Butcher's till roll from 29.07.2017 | State | Exhibit 186 |
| 159.1 | Photocopy of the till roll | State | |
| 159.2 | Typed version of the till roll | State | |
| 160.1 | Marked up document entitled ‘Times and Dates on Receipt Roll’ | Defence | |
| 160.2 | Marked up document entitled ‘If the Time is Fast by 12 Hours’ | Defence | |
| 160.3 | Marked up document entitled ‘If the Till Clock is Slow by 12 Hours’ | Defence | |
| 161 | Enlargement of original till receipt showing transactions 3.4, 3.5, 3.6 and 3.7 | Defence | |
| 162 | Enlargement of till receipt showing transaction 1.4 | Defence | |
| 163 | Itinerary of view | Judge | MFI 1 |
| 164 | Certificate of evidence from Department of Transport | State | Exhibit 211 |
| 165 | Statement of Matthew David Turner dated 18.12.2013 | State | N/A |
| 166.1 | Till rolls that looked like the till rolls that Matthew David Turner collected from the Badgingarra Roadhouse | State | Exhibit 180 |
| 167 | Document signed by Matthew David Turner on 26.08.1999 | State | Exhibit 181 |
| 168 | Bundle of 4 photographs of the clothes on/bought for the mannequin | State | N/A |
| 169 | Email dated 28.11.2001 | State | N/A |
| 170.1-170.12 | Series of photographs of clothing/items | Defence | N/A |
| 170.13 | The redacted version of the article | Defence | N/A |
| 171 | Map of the search areas | State | Exhibit 191 |
| 172 | Fax cover sheet and two-page document from Royal Perth Hospital | State | Exhibit 193 |
| 173 | WA Police dispatch print out with handwriting | Defence | Exhibit 192 |
| 174 | Computer printout from Telstra prepared 21.09.1999 | Defence | N/A |
| 175 | Authority signed by John Robert McConnell | State | Exhibit 73 |
| 176 | Property receipt for Holden utility dated 6.08.1999 | State | Exhibit 74 |
| 177 | Call charge record read on 11 August 1999 | State | N/A |
| 178 | Statement of agreed evidence of Ms M | State | N/A |
| 179 | DVD of forensic examination on 6.08.1999 | State | Exhibit 75 |
| 180 | Bundle of 16 photographs of utility vehicle | State | Exhibit 76 |
| 181 | 7 photographs of paper bag | State | Exhibit 77 |
| 182 | Bundle of 6 photographs of jars and bag | State | Exhibit 78 |
| 183 | Car seat cover from DL 735 | State | Exhibit 80 |
| 184 | Photocopy of exhibit list relating to vehicle DN 735 with original handwriting | State | Exhibit 79 |
| 185 | Property receipt report with handwritten notation of AE 38 | State | Exhibit 81 |
| 186 | Property tracing system report | State | Exhibit 82 |
| 187 | Running sheet endorsed with handwriting dated 6.08.1999 | Defence | Exhibit 84 |
| 188 | Copy of Forensic Division Crime Scene Report face sheet (Annexure A) | Defence | Exhibit 83 |
| 189 | Copy of Forensic Division Crime Scene Report face sheet with blue handwriting | Defence | |
| 190 | Forensic Division Crime Scene Report with checked box signed | Defence | |
| 191 | Forensic Branch Crime Scene Report - Motor Vehicle with some original signatures and dates | Defence | Exhibit 85 |
| 192.1 | Enlargement of EX 180 photograph 12 | Defence | Exhibit 87 |
| 192.2 | Close up enlargement of EX 180 photograph 12 | Defence | |
| 193 | Enlargements of EX 180 photograph 11 | Defence | |
| 196 | Letter to the CEO of PathCentre dated 9.08.1999 | State | Exhibit 29 |
| 197 | 3 pages of property transfer system paperwork for AE 38 | State | Exhibit 89 |
| 198 | 4 pages of property transfer system paperwork for AE 48 | State | Exhibit 90 |
| 199 | Statement of Natalie Jane Di Pietro dated 19.10.2015 | State | N/A |
| 200 | IMS database print out for AE 38 | State | Exhibit 92 |
| 201 | IMS database print out for AE 48 | State | Exhibit 93 |
| 202 | Property update history report created 1.02.2016 | State | Exhibit 94 |
| 203.1 | Photograph of the PRESS warehouse | State | N/A |
| 203.2 | Photograph of the PRESS warehouse | State | N/A |
| 204 | 4-page email chain from Detective Paton dated 27.08.2013 | State | Exhibit 100 |
| 205 | DVD of the movement of the hessian bag played to the court | State | Exhibit 117 |
| 206 | PRESS items for destruction/disposal document | State | Exhibit 105 |
| 207 | Prosecution edited DVD of footage from PRESS | State | Exhibit 107 |
| 208.1 – 208.11 | Bundle of 11 photographs of Lot 10 North West Road | Defence | N/A |
| 209 | Special crime squad continuity document signed 12.12.2013 re Margaret Dodd's DNA | State | Exhibit 108 |
| 210 | Victorian Institute of Forensic Medicine - Chain of custody evidence transfer record | State | N/A |
| 211 | Photograph taken by Sgt Sadlier of shed at Lot 10 | Defence | Exhibit 110 |
| 212 | Typed and signed statement of Paul Johnson dated 17.02.2017 | State | N/A |
| 213 | 4-page Informed Consent to an Identifying Procedure Volunteer | State | N/A |
| 214 | Bundle of 7 photographs taken by Constable Mustafa | Defence | Exhibit 114 |
| 215 | Still photograph from EX 207 | Defence | N/A |
| 216 | Defence edited DVD of footage from PRESS | State | N/A |
| 217 | Corporate visitors register | State | N/A |
| 218 | Cross Reference Chart | State | Exhibit 115 |
| 219 | Prosecution disk containing edited CCTV of Sergeant Fisher | State | Exhibit 120 |
| 220 | 4 pages of notes made by Sergeant Fisher | State | N/A |
| 221 | Copy of email marked by Sergeant Fisher | State | N/A |
| 222.1 | Continuity form signed by Carolyn Jones on 3.09.2013 | State | Exhibit 121 |
| 222.2 | Conveyance Form signed by Carolyn Jones | State | N/A |
| 223 | Hessian bag, labels, twine and plastic bag | State | Exhibit 135 |
| 224 | Bundle of 20 photographs | State | Exhibit 122 |
| 225.1 | Torn piece of evidence tape | State | N/A |
| 225.2 | Intact piece of evidence tape | State | Exhibit 125 |
| 226 | Exhibit SC1 in bag from EX 206 | State | Exhibit 124 |
| 227 | Exhibit SC26 in bag from EX 206 | State | N/A |
| 228.1 | Original brown paper bag packaging for the car seat cover | State | Exhibit 123 |
| 228.2 | Plastic bag that the original paper bag for the car seat was in | State | |
| 229.1 | 3-page continuity form signed by Sergeant Fisher dated 20.07.2015 | State | Exhibit 127 |
| 229.2 | Victorian Institute of Forensic Medicine chain of custody record dated 22.07.2015 | State | N/A |
| 230.1 | 2-page WA Police continuity form dated 10.11.2015 and 11.11.2015 | State | Exhibit 123 |
| 230.2 | Chain of custody form dated 11.11.2015 | State | N/A |
| 231.1 | WA Police continuity form dated 11.11.2015 | State | Exhibit 129 |
| 231.2 | Victorian Institute of Forensic Medicine chain of custody form dated 11.11.2015 | State | |
| 232 | Continuity form dated 23.11.2015 | State | Exhibit 130 |
| 233.1 | Consignment note dated 24.11.2015 | State | Exhibit 131 |
| 233.2 | WA Police continuity form of 2 pages dated 24.11.2015 | State | Exhibit 132 |
| 233.3 | Cellmark submission of work for scientific examination | State | Exhibit 130 |
| 234 | Continuity form dated 2.12.2015 | State | Exhibit 133 |
| 235 | 1 Earring | State | Exhibit 134 |
| 236 | Email chain dated 10.09.2013 | State | Exhibit 86 |
| 237 | Bundle of 11 photographs taken by Tracy Louise Horner | State | Exhibit 145 |
| 238 | Bundle of 8 photographs | State | Exhibit 136 |
| 239 | Bundle of 8 photographs taken by Tracy Louise Horner on 6.09.2013 | State | Exhibit 137 |
| 240 | 2 photographs taken by Tracy Louise Horner on 20.09.2013 | State | N/A |
| 241 | 2 x photographs of earring taken by Tracy Louise Horner on 18.03.2014 | State | Exhibit 143 |
| 242 | 3 x photographs of hair 13 | State | Exhibit 147 |
| 243 | 49 pages of item examination notes made by Tracy Louise Horner | State | Exhibits 138, 139, 141, 143, 144 |
| 244 | Email from Tracy Louise Horner to Brent Fletcher on 20.09.2013 | Defence | Exhibit 149 |
| 245 | Collage of 3 photographs in Exhibit 242 | Defence | N/A |
| 246 | Close up of earring in situ on car seat cover taken on 6.09.2013 | Defence | Exhibit 140 |
| 247 | Maternity table | State | Exhibit 152 |
| 248 | Scott Elliott Egan's report of 34 pages dated 31.10.2016 | State | N/A |
| 249.1 | Reports by Emily O'Shea dated 9.12.2015 | State | N/A |
| 249.2 | Reports by Emily O'Shea dated 29.12.2015 | State | N/A |
| 250 | STR Multiplex Summary Table | State | Exhibit 155 |
| 251 | Andrew John McDonald's PowerPoint presentation | State | Exhibit 154 |
| 252.1 | Run 1 | State | Exhibit 156 |
| 252.2 | Run 2 | State | |
| 252.3 | Run 3 | State | |
| 253 | NGM SElect profile of Hayley Marie Dodd | State | |
| 254 | NGM SElect profile result sheet | State | |
| 255 | Combined Allele reports | State | Exhibit 157 |
| 257 | 2 x tables of Mitochondrial Sequence Data | State | N/A |
| 258 | Hardcopy of PowerPoint presentation by Dr Hartman | State | Exhibit 160 |
| 259 | Statement of agreed facts - Badgingarra Roadhouse till roll | State | N/A |
| 260.1 | Handwritten statement of Francis John Wark dated 11.08.1999 | State | Exhibit 197 |
| 260.2 | Typed statement of Francis John Wark dated 26.08.1999 | State | |
| 261 | Edited video of search of Francis John Wark’s property on 17.08.1999 | State | Exhibit 196 |
| 262 | EFTPOS records from Supavalu in Moora | State | Exhibit 184, 185, 189 |
| 263.1 | Supavalu till rolls x 2 | State | Exhibit 183 |
| 263.2 | Photocopy of till rolls labelled A | State | |
| 263.3 | Photocopy of till rolls labelled B | State | |
| 264 | 2 x aerial photographs of Lot 10 | State | Exhibit 200 |
| 265 | Series of 7 photographs of excavation of the animal pen | State | Exhibit 201 |
| 266 | Visitors book for PRESS ending 23.06.2017 | State | N/A |
| 268 | Aerial photograph of areas searched | State | Exhibit 199 |
| 269 | Edited DVD of EROI with Francis John Wark | State | Exhibit 206 |
| 270 | 3 documents referred to in Francis John Wark's EROI | State | Exhibit 205 |
| 272 | Bundle of advertisements | Defence | Exhibit 221 |
| 273 | Email chain dated 23.09.2013 | Defence | N/A |
| 275 | Email chain Bethel to Webb dated 27.08.2013 | State | Exhibit 219 |
| 278 | Diagrams of indicator repairs | State | N/A |
| 279 | Statement of Ryan Earnest Murphy dated 23.06.2017 | State | N/A |
| 280.1 | 1 page document with 2 x charts to Moora bakery | State | N/A |
| 280.2 | Chart from Badgingarra Roadhouse | State | N/A |
| 281 | Spread sheet of registered Holden HQ utilities in July 1999 | State | Exhibit 203 |
| 282 | Letter from Bank of Queensland dated 31.01.2017 | State | N/A |
| 283 | Letter from Citibank dated 1.02.2017 | State | N/A |
| 284 | Letter from P&N bank dated 1.02.2017 | State | N/A |
| 285 | Letter from Commonwealth Bank dated 1.02.2017 | State | N/A |
| 286 | Letter from Centrelink dated 30.01.2017 | State | N/A |
| 287 | Memo from Westpac Bank dated 3.02.2017 | State | N/A |
| 288 | Affidavit of Anthony McMahon at Bank West dated 6.02.2017 | State | N/A |
| 289 | Statement of Kathleen Melia dated 7.02.2017 | State | N/A |
| 290 | Report from ANZ 14.02.2017 | State | N/A |
| 291 | ATO report dated 13.02.2017 | State | N/A |
| 292 | Statement from Department of Border Protection | State | N/A |
| 293.1 | Report from Medicare dated 4.02.2014 | State | N/A |
| 293.2 | Reports from Medicare dated 20.06.2017 | State | N/A |
| 294 | Letter from National Tenancy Database dated 5.12.2013 | State | N/A |
| 295 | Letter from National Australia Bank dated 20.10.2017 | State | N/A |
| 296 | 4 pages of medical notes in respect of Francis John Wark from Moora Hospital | State | N/A |
| 297 | Bundle of documents from Queensland Prison medical notes | State | N/A |
| 298 | Letter from WA Cancer Registry and brochure | State | N/A |
| 274 | Email exchange dated 25.09.2015 | State | N/A |
| 276 | VIPER entry dated 27.08.2013 | State | N/A |
| 277 | Page 272 of a viper entry dated 7.04.2014 | State | N/A |
| 300 | Call charge records to Gingin | State | N/A |
| 301 | Extract from Telstra whitebook in 1999 | State | Exhibit 215 |
| 303 | Typed statement of Sean Harley Troy dated 10.08.1999 | Defence | N/A |
| 302 | Handwritten statement of Sean Harley Troy dated 9.05.2000 | Defence | N/A |
| 299 | Newspaper article dated 2.08.1999 | State | N/A |
| 304 | Extract from The West Australian dated 3.08.1999 | State | N/A |
| 305.1 | Map shown to Mr Pulls | State | N/A |
| 305.2 | Map shown to Mr Pulls | State | N/A |
| 305.3 | Map shown to Mr Pulls | State | N/A |
| 305.4 | Map shown to Mr Pulls | State | N/A |
| 306 | Bundle of documents shown to Professor Jamieson together with the new close up | Defence | N/A |
| 307 | Disk containing all digital photo evidence and index | State | N/A |
| Exhibits relevant to application by defence for the statements of Sean Harley Troy to be admitted into evidence – 6.11.2017 | |||
| 1 | Statement of Sean Harley Troy dated 10.08.1999 | Defence | N/A |
| 2 | Statement of Sean Harley Troy dated 9.05.2000 | Defence | N/A |
| 3 | Original death certificate of Sean Harley Troy | Defence | N/A |
Annexure 5 - Exhibits that were tendered at the retrial, but were not tendered at the original trial
| Second Trial – Trial by Jury – Hall J | ||
| Exhibit | Description | Tenderer |
| 1 | Section 32 Admissions signed by Mr Francis John Wark on 11.02.2021 | Defence |
| 11 | Photograph of Hayley Marie Dodd taken about 1996 | Defence |
| 12 | Photograph of Raeanne Ethel Dodd’s charm bracelet | Defence |
| 20 | Photograph of hiking boots | State |
| 21 | Photograph of grey jacket | State |
| 22 | Photograph of backpack similar to that that Hayley Marie Dodd had | State |
| 24 | Property tracing receipt in respect of those seven items | State |
| 27 | Photograph of a beaded necklace which was formerly MFI 4 | Defence |
| 37 | Three photographs of the entrance to Seldom Seen Farm in 1999 | State |
| 39 | Six stills from the video dated 17.08.1999 | Defence |
| 43 | Larger version of the map showing Badgingarra farm area | State |
| 47 | Farm map marked by Gina Kenny | State |
| 48 | Badgingarra map marked by Margaret Anne Johnson | State |
| 50 | Farm map marked by Carl Adrian Moltoni | State |
| 58 | Map of Moora marked by Eileen Jane Purser | State |
| 59 | Aerial map marked by Eileen Jane Purser | State |
| 63 | Farm map as annotated by David Leslie Stribley | State |
| 64 | Farm map annotated by David Leslie Stribley | State |
| 65 | Photograph marked by David Leslie Stribley showing where the female seen by the witness was squatting | State |
| 88 | Request for analysis on 9.08.1999 | State |
| 91 | Three enlarged photographs of the car seat cover | Defence |
| 95 | Three photographs of crates at PRESS | State |
| 96 | Four photographs of the wooden crates after the SCERM review project | State |
| 98 | Seven photographs of the crates at the PRESS warehouse | State |
| 99 | Five photographs of processed crates at Supra | State |
| 101 | Two stills from the CCTV footage of the crate | Defence |
| 102 | Photograph of the volume crime 39 crate | Defence |
| 103 | Surveyed plan of PRESS showing Project Supra production line | State |
| 104 | CCTV footage from 13.05.2013 and 14.05.2013 at PRESS, formerly MFI 7 | State |
| 106 | Email exchange on 10.03.2014 | Defence |
| 109 | Still photograph from the CCTV footage | Defence |
| 111 | Two photographs showing the area excavated at Lot 10 North West Road, Badgingarra | Defence |
| 112 | Five photographs of the earring taken on 8.11.2013 | Defence |
| 113 | DNA forms for the reference sample from Margaret Dodd | State |
| 116 | Three photographs from the CCTV footage of the crate showing the removal of the box | State |
| 118 | Two screenshots showing the comparison between the crate on 13.05.2013 at 15:43:20 and 14.05.2013 at 7:40:44 | State |
| 119 | Email sent to Sergeant Fisher on 29.08.2013 | State |
| 126 | Security movement envelope example | State |
| 128 | Continuity form for the collection of exhibits on 10 November 2015 and the submission of them on 11.11.2015 to VIFM | State |
| 142 | Sheet showing the evidence tape on the evidence bag for the car seat cover | State |
| 146 | Microscopic photo of Hair 13 marked by Tracy Louise Horner | State |
| 148 | Hair fibre processing worksheet for AE48 | State |
| 150 | Four photographs of the earring taken by Tracy Louise Horner | Defence |
| 151 | PowerPoint presentation | State |
| 153 | Two partial profile examples | Defence |
| 158 | CFS 933439-15 Item VA 952 Seed 42 no-drop-in-Evaluation-Report | Defence |
| 159 | Evaluation Report with drop-in | Defence |
| 161 | The likelihood ratio when Mitochondrial DNA is added to the Nuclear DNA results | State |
| 171 | Stub of money order | State |
| 194 | Missing person public notice | Defence |
| 195 | Vehicle inquiry printout for the Ford Maverick with registration N.542 | Defence |
| 198 | Map of Moora marked by Matthew Alan Newman | State |
| 202 | PowerPoint presentation of the procedure for replacing the indicator stalk in a HQ Holden | State |
| 204 | Three shire maps | State |
| 207 | Transcript of the accused's record of interview | State |
| 208 | VIPER entry dated 13.03.2014, formerly MFI 8 | Defence |
| 209 | copy of the crime scene report with the "SCS review" stamp of 16 October 2014 formerly MFI 6 | Defence |
| 210 | Bundle of proof of life inquiry responses | State |
| 212 | Death certificate for John McConnell | State |
| 213 | Audit reports for the information management system in regards to AE38 of Detective Sergeant Bethell | State |
| 214 | Call charge records for the public telephones at the Ampol Station, Cataby | State |
| 216 | Moora to 961 marker time and distance calculations | State |
| 217 | Roadhouse to Langford distance calculation | State |
| 222 | Moora town map marked by the accused | Defence |
| 225 | PowerPoint presentation | Defence |
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