WARK -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : WARK -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 19

CORAM : BUSS P
MAZZA JA
BEECH JA

HEARD : 21 & 22 MARCH 2019
DATE OF LAST
SUBMISSIONS : 12, 15, 23 APRIL 2019 & 17 JANUARY 2020

DELIVERED : 21 FEBRUARY 2020

FILE NO/S : CACR 26 of 2018

BETWEEN : FRANCIS JOHN WARK
Appellant

    AND

    THE STATE OF WESTERN AUSTRALIA
    Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File Number : INS 370 of 2016

Catchwords:

Criminal law – Appeal against conviction – Appellant convicted of murder after a trial before a judge alone – Victim abducted in 1999 while walking or hitchhiking on a country road – Victim’s body never found – Prosecution case based on circumstantial evidence

Alibi – Appellant asserted an alibi in his out‑of‑court statements to the police – Whether the trial judge erred in finding that the appellant’s alibi was false and that there was no reasonable possibility that it was true

Opportunity – Whether the trial judge erred in finding that the appellant had the opportunity to encounter the victim – Whether the trial judge was required to be satisfied beyond reasonable doubt that the appellant had the requisite opportunity

Propensity evidence – Victim killed in 1999 – Appellant convicted of serious offences that he committed in 2007 – Whether evidence of the circumstances of the serious offences committed in 2007 was admissible as propensity evidence – Section 31A of the Evidence Act 1906 (WA) – Whether the evidence was significantly probative for the purposes of s 31A – Whether the trial judge erred by taking into account the appellant’s conviction of the serious offences committed in 2007 in assessing the honesty and reliability of the appellant’s alleged alibi – Whether the trial judge erred in concluding, based on the convictions and on the statements in support of the alibi not being on oath, that the appellant’s statements in support of his alibi should not be accepted unless they were supported by independent evidence

Unreasonable verdict – Whether the verdict of guilty was unreasonable or cannot be supported having regard to the evidence – Whether it was open to the trial judge to conclude beyond reasonable doubt that the appellant killed the victim

Legislation:

Criminal Appeals Act 2004 (WA), s 23, s 28, s 30, s 39, s 40
Criminal Code (WA), s 278 (repealed)
Criminal Procedure Act 2004 (WA), s 96, s 98, s 119, s 120
Evidence Act 1906 (WA), s 31A
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25

Result:

Leave to appeal granted on each ground of appeal
Appeal allowed
Judgment of conviction set aside
New trial ordered on the charge of murder

Category: A

Representation:

Counsel:

Appellant : Mr S Vandongen SC
Respondent : Ms A L Forrester SC and Mr L M Fox

Solicitors:

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

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Anderson v The Queen (1991) 53 A Crim R 421
Ascic v Bedworth [2013] WASCA 174
Austic v The State of Western Australia [2010] WASCA 110
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
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
BSD v The State of Western Australia [No 2] [2009] WASCA 152
Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172
Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517
Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DKA v The State of Western Australia [2017] WASCA 44
DKA v The State of Western Australia [2019] WASCA 123
Dodd & Dodd Pty Ltd v Shire of Mundaring [2011] WASCA 37; (2011) 213 A Crim R 92
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Evans v The State of Western Australia [2011] WASCA 182
Fennell v The Queen [2019] HCA 37
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Flessas v The State of Western Australia [2018] WASCA 210
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Gelavis v Australian Securities and Investments Commission [2003] WASCA 300
Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620
Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430
Hofer v The Queen [2019] NSWCCA 244
House v The King [1936] HCA 40; (1936) 55 CLR 499
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305
KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417
Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Kitto v The Queen [2019] WASCA 161
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
La Bianca v The State of Western Australia [2019] WASCA 105
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Lilley v The State of Western Australia [2019] WASCA 164
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MIB v JAP [2019] WASCA 175
Morgan v The State of Western Australia [2011] WASCA 185
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Nuhana v The State of Western Australia [2018] WASCA 79
OKS v The State of Western Australia [2019] HCA 10; (2019) 93 ALJR 438
Onekawa v The State of Western Australia [2012] WASCA 105
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45
Quinn v The Queen [2018] NSWCCA 297
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Bauer [2018] HCA 40; (2018) 92 ALJR 846
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v J (No 2) [1998] 3 VR 602
R v Johnson (1961) 46 Cr App R 55
R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527
R v Kilbourne [1973] AC 729
R v Merrett [2007] VSCA 1; (2007) 14 VR 392
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v PBB [2018] QCA 214
R v Small (1994) 33 NSWLR 575
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Taylor [1968] NZLR 981
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
R v Yusuf [2005] VSCA 69; (2005) 11 VR 492
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
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
Taylor v The Queen [2017] NSWCCA 2
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
The State of Western Australia v Wark [2017] WASC 154
The State of Western Australia v Wark [No 2] [2018] WASC 18
Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
Upton v The State of Western Australia [2008] WASCA 54
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Williams v The State of Western Australia [2017] WASCA 206
YBJ v The State of Western Australia [2019] WASCA 126
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

TABLE OF CONTENTS

BUSS P:
Brief overview of the facts and circumstances of Ms Dodd’s disappearance 10
The appellant and his personal circumstances 14
Mr McConnell’s vehicle 14
Mr McConnell’s death and his written statements 15
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 15
Brief overview of the State’s case at trial 20
Brief overview of the appellant’s case at trial 20
The grounds of appeal 21
The orders sought by the appellant and the State’s response to the orders sought 22
Ground 1: the appellant’s alibi 23
Ground 1: the trial judge’s findings in relation to the appellant’s alibi 24
Ground 1: the appellant’s submissions 31
Ground 2: the trial judge’s finding that the appellant had the opportunity to encounter Ms Dodd on North West Road 35
Ground 2: the appellant’s submissions 38
Grounds 1 and 2: the State’s submissions 49
Ground 2A: the trial judge’s finding that the earring found on the seat cover of Mr McConnell’s vehicle belonged to Ms Dodd 51
Ground 2A: the appellant’s submissions 56
Ground 2A: the State’s submissions 57
Ground 3: the trial judge’s approach to assessing the honesty and reliability of the appellant’s accounts to police on 3 and 5 August 1999 about his movements on 29 July 1999 57
Ground 3: the appellant’s submissions 58
Ground 3: the State’s submissions 60
Ground 4: the decision to admit evidence at the appellant’s trial, pursuant to s 31A of the Evidence Act, that on 1 June 2007 he had detained, assaulted and sexually assaulted a female hitchhiker, Ms M, in Queensland 61
Ground 4: the appellant’s submissions 68
Ground 5: the trial judge having taken into account the absence of any ‘evidence of any change to [the appellant’s] character or life which would justify [her Honour] finding that he developed this propensity between 1999 and 2007’ in weighing the probative value of M’s evidence as to the appellant’s conduct on 1 June 2007 in Queensland 71
Ground 5: the appellant’s submissions 71
Grounds 4 and 5: the State’s submissions 72
Ground 6: the trial judge’s ultimate finding of guilt: was the verdict of guilty, upon which the conviction for murder was based, unreasonable or unable to be supported having regard to the evidence? 75
Ground 6: the appellant’s submissions 77
Ground 6: the State’s submissions 81
The organisation of the balance of these reasons 83
The grounds of appeal: some legal principles applicable to a trial before a judge alone 83
The grounds of appeal: some legal principles applicable to a State case based on circumstantial evidence 89
The grounds of appeal: some legal principles applicable in an appeal to this court from a judgment of conviction entered after a trial before a judge alone 91
Grounds 4 and 5: their merits 103
Grounds 1, 2, 2A and 3: their merits 118
Ground 6: its merits 158
The outcome of the appeal 165
Should this court enter a judgment of acquittal or order a new trial? 165
Conclusion 168

MAZZA JA: 169

BEECH JA:
Introduction 169
Primary judge’s reasons 170
Modified Longman warning 170
State and defence cases 171
Background facts 172
Ms Dodd’s movements on 29 July 1999 172
The appellant’s movements on 29 July 1999 179
Conclusions about the appellant’s movements on 29 July 1999 183
Police investigation 185
Propensity evidence of Ms M 186
Conclusions about the propensity evidence 187
Conclusions about the earring 188
Conclusion as to whether the appellant killed Ms Dodd 189
Intention 191
Verdict 191
Grounds of appeal and submissions 191
Appeals from a trial by judge alone: legal principles 191
Grounds 1, 2 and 2A 195
What matters needed to be proved beyond reasonable doubt? 195
The judge’s approach 198
Ground 1 199
Ground 2 201
Ground 2A 207
Ground 3 207
Background 207
The judge’s impugned reasoning 208
Error in the judge’s reasoning? 210
Miscarriage of justice? 214
Application of the proviso 216
Ground 6 220
Retrial or judgment of acquittal? 222
Conclusion 222
Annexure A 223

BUSS P:

1 On 22 January 2018, the appellant was convicted, after a trial in the Supreme Court before Jenkins J alone without a jury, of one count of murder.
2 The indictment alleged that on or about 29 July 1999, at Badgingarra, the appellant wilfully murdered Hayley Marie Stephenson (also known as Hayley Marie Dodd), contrary to s 278 (as then enacted but now repealed) of the Criminal Code (WA).
3 I will refer to the deceased as Ms Dodd.
4 The appellant was not charged until after he was interviewed by police on 27 November 2013. He was tried between 9 October 2017 and 24 November 2017.
5 On 22 January 2018, the trial judge found that the appellant had unlawfully killed Ms Dodd and was guilty of murder, but not guilty of wilful murder. Her Honour published written reasons for decision. See The State of Western Australia v Wark [No 2].
6 Her Honour sentenced the appellant to life imprisonment with a minimum non‑parole period of 21 years.
7 The appellant has appealed against his conviction on seven grounds.
8 I would grant leave to appeal on each of the grounds of appeal. The appeal should be allowed on the basis of ground 3. The other grounds have not been made out. The judgment of conviction should be set aside and a new trial ordered on the charge of murder.
Brief overview of the facts and circumstances of Ms Dodd’s disappearance
9 In about March 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.
10 On the morning of 22 July 1999, Ms Dodd and Ms Frederickson left Mandurah. They hitchhiked to Rockingham and then walked to the home of Ms Frederickson’s former partner, Stuart Cutt, who drove them to a location north of Perth. From that location, Ms Dodd and Ms Frederickson hitchhiked to Eneabba. They arrived in Eneabba on the afternoon of 22 July 1999. Next, Ms Dodd and Ms Frederickson travelled to Dongara.
11 On 27 July 1999, Ms Dodd and Ms Frederickson went to the Treefrog Book & Crystal Shop (the Treefrog shop) in Dongara. Ms Dodd purchased a pair of silver metal earrings with a turquoise‑coloured stone in them. The earrings were in the design of the ankh (sometimes called the Egyptian cross). The coloured stone was in the middle of the ankh. Ms Frederickson gave evidence, as a State witness at the trial, that the ankh was 2.5 cm to 3 cm in length (ts 219). The ankh was attached to a hook‑shaped piece of metal which was designed to pass through a pierced ear.
12 Ms Dodd told Ms Frederickson that she wanted to visit the Hammond family at Seldom Seen farm (ts 206). Keith Hammond, who was a State witness at the trial, owned the farm (ts 391), which is on the southern side of North West Road, 24.6 km from Badgingarra and 33.7 km from Moora [102]. North West Road runs from Badgingarra in approximately a south-easterly direction until it intersects with Dandaragan Road. Dandaragan Road then runs in an easterly direction to Moora. In October 1998, Ms Dodd had stayed at the farm with her younger sister, Raeanne, who was a friend of Mr Hammond’s granddaughter, Kristal. Ms Dodd had told other people that she had enjoyed staying at the farm (ts 170). 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 185, 193).
13 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 394). Mr Hammond told Ms Dodd that he may not be home on 29 July 1999. He told her 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 396).
14 Ms Dodd and Ms Frederickson spent the night of 28 July 1999 in Dongara.
15 On the morning of Thursday, 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, a black tight‑fitting cardigan with a single top button, and a grey jacket. During that morning, Ms Dodd separated from Ms Frederickson to hitchhike to Seldom Seen farm via Badgingarra [125]. According to Ms Frederickson, when they separated Ms Dodd was wearing, in addition to the clothing I have mentioned, numerous silver rings, a silver cross necklace with a figure of Jesus Christ and the ankh earrings she had purchased from the Treefrog shop [126].
16 Donald Spry and Margaret Johnson were State witnesses at the trial. The trial judge found, on the basis of their evidence, that each of them had given Ms Dodd a lift in his or her motor vehicle on the morning of 29 July 1999.
17 Mr Spry, who was driving a prime mover and towing a trailer with an excavator on it, passed Ms Dodd approximately 700 m to 800 m south of Dongara. He stopped at a service station abutting Brand Highway. Shortly afterwards, Ms Dodd 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 prime mover to Badgingarra (ts 408 ‑ 409). Mr Spry gave evidence that Ms Dodd left his vehicle when he stopped on the southern gravel verge of Meagher Drive, near a speed sign between the Badgingarra roadhouse and Brand Highway. Although Mr Spry said that Ms Dodd alighted from his prime mover at just before 11.00 am (ts 417), her Honour found on the basis of other evidence that the time was close to 10.30 am [133].
18 Ms Dodd made a telephone call at 10.35 am from a public telephone box on the verge outside the Badgingarra roadhouse. She telephoned the Dongara 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 [134].
19 Ms Dodd then began walking along Meagher Drive towards North West Road. She was not hitchhiking. She was seen on Meagher Drive by another State witness, Michael Russell, between about 10.30 am and 11.00 am [135].
20 On the morning of 29 July 1999, Ms Johnson, who was driving a motor vehicle from Badgingarra to her workplace at Badgingarra Research Station after having collected mail, saw Ms Dodd walking on the north side of North West Road. Ms Dodd was not hitchhiking. However, Ms Johnson stopped her vehicle and asked Ms Dodd where she was going. Ms Dodd said she was going to Moora. Ms Johnson told Ms Dodd that she could not take her to Moora, but she could drive her further along North West Road. Ms Dodd accepted the offer and got into the front passenger seat of Ms Johnson’s vehicle. Ms Dodd alighted from Ms Johnson’s vehicle near the intersection of North West Road and Winjardie Road. Ms Johnson saw Ms Dodd crossing North West Road to the south side of that road. Ms Johnson did not see Ms Dodd again [139] ‑ [143].
21 Ms Johnson did not recall the time she saw or gave a lift to Ms Dodd. However, Ms Johnson gave evidence that she usually drove from Badgingarra Research Station to Badgingarra to collect mail at about 11.30 am to 11.40 am. She said the journey took about 10 minutes and she spent about 10 minutes in Badgingarra before making the return journey [139]. Her Honour found that, on the basis of her usual practice, Ms Johnson would have given a lift to Ms Dodd, at the earliest, at 11.50 am [139]. However, her Honour also found, on the basis of other evidence, that Ms Johnson made the outbound journey from Badgingarra Research Station to Badgingarra on the morning in question ‘earlier than she recalls that she usually made the trip to Badgingarra’ [141].
22 David Stribley, a State witness at the trial, gave evidence that he saw Ms Dodd on North West Road. The trial judge described Mr Stribley as ‘an apparently credible witness’ [177]. After considering his evidence against other facts which she had found, her Honour was satisfied that Mr Stribley saw Ms Dodd near a location at which there is now a small sign which states ‘961’ (the 961 marker) ‘at about 11.40 am’ on 29 July 1999 [178], [318]. Her Honour said there were no witnesses who claimed to have been in the area of the location of the 961 marker ‘from around 11.40 am – 12.10 pm’, apart from Timothy Peacock and Kenneth Barrett, but her Honour was of the view that Mr Peacock’s and Mr Barrett’s failure to see Ms Dodd was not decisive [318]. Her Honour further found that there were witnesses who claimed to have driven along North West Road ‘at around the location of the 961 marker from about 12.10 pm onwards’ and that none of the witnesses saw Ms Dodd, apart from Bruce Smith and Bradley Davies, whose evidence her Honour did not accept [319]. Mr Peacock, Mr Barrett, Bruce Smith and Mr Davies were State witnesses at the trial.
23 Her Honour found that 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 [321]. Her Honour also found that the appellant had abducted Ms Dodd and, later on 29 July 1999, had killed her [322], [794].
24 The 961 marker is 48.7 km from Moora via North West Road. The point 2 km east of the 961 marker is 46.7 km from Moora via North West Road [173].
25 The trial judge attached to her reasons, as Attachment 1, a map of the Badgingarra/Moora area. A copy of that attachment is annexed to these reasons as Annexure A.
The appellant and his personal circumstances
26 The appellant was born on 21 February 1956. In July 1999 he was aged 43. At that time he was at least of an average Caucasian man’s height and weight [83].
27 In July 1999, the appellant owned and lived in ‘a very basic home’ on lot 10‑12 North West Road, Badgingarra. He had lived there for about 15 years. The home was built on a lot that was ‘much larger than a standard residential block’. The home was set back from the road. There was a freestanding 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. There were no other homes or developments in the vicinity [84].
28 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 [85].
29 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 [87], [89].
Mr McConnell’s vehicle
30 In December 1998, the appellant purchased a white 1973 HQ Holden utility vehicle [91]. 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 habitually drove to and from Moora each Thursday [91], [93].
31 The trial judge found that, when he travelled between his home and Moora, the appellant would drive Mr McConnell’s vehicle at about 80 km per hour [94]. At 80 km per hour the one-way 50.7 km journey would take about 38 minutes.
Mr McConnell’s death and his written statements
32 Mr McConnell died on 10 January 2013 at the age of 59.
33 At the trial, the prosecutor tendered four written statements made by Mr McConnell, dated 4 August 1999, 11 August 1999, 27 August 1999 and 15 September 1999.
34 In his statement dated 27 August 1999, Mr McConnell said that on 29 July 1999 he arrived at the appellant’s home, after work, while it was ‘still light’. Mr McConnell then said (ts 865 – 866):
I noticed that the ute [that is, Mr McConnell’s vehicle] was in the shed, and the house was locked. Because the house was locked, I knew [the appellant] had gone to Perth. It was unusual for the ute to be in the shed after Frank [that is, 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 Frank 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 in 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.
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
35 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 turn left and drive 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 will 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 would have recorded it 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.
36 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.
37 On 5 August 1999, the appellant added that Mr McConnell’s vehicle overheated if it was driven in excess of 80 km per hour.
38 On 5 August 1999, the appellant also added that on 29 July 1999 he had spoken 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.
39 On 5 August 1999, the appellant also added that when he returned from Moora to his home on 29 July 1999 he parked the vehicle ‘around the back of the house and unpacked the supplies’ and he ‘then parked the car in the shed’.
40 On 5 August 1999, the appellant 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.
41 At the trial, it was not in dispute that before 29 July 1999 the appellant’s house was for sale and that he had told other people of his plans to sell the house and move to Queensland.
42 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 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. The EROI did not contain anything which implicated the appellant in the commission of an offence against Ms Dodd.
Brief overview of the State’s case at trial
43 The State’s case was circumstantial. It was based on the proposition that the trial judge should be satisfied beyond reasonable doubt, from the following facts and circumstances, that the appellant was guilty of wilful murder or the alternative offence of murder:
(a) When she disappeared, Ms Dodd was wearing the ankh earrings she had purchased from the Treefrog shop, one of which was later found in the motor vehicle that the appellant admitted he had been driving on 29 July 1999.
(b) One of Ms Dodd’s hairs was also later found in the vehicle.
(c) The appellant was alone in the vehicle when he had the opportunity of encountering Ms Dodd on North West Road.
(d) There have been no reliable sightings of Ms Dodd since the appellant had the opportunity of encountering her.
(e) The appellant had a propensity to pick up a lone female hitchhiker and to use extreme violence in the course of raping the hitchhiker.
Brief overview of the appellant’s case at trial
44 The appellant’s case was that the State had failed to prove his guilt beyond reasonable doubt because he had an alibi, namely he was in Moora when Ms Dodd disappeared.
45 Further, and in any event, the appellant contended that the trial judge should not be satisfied that:
(a) he had the opportunity at the material time to encounter Ms Dodd;
(b) the earring and the hair belonged to Ms Dodd; or
(c) the propensity evidence was probative of his guilt.
46 The appellant did not give evidence at the trial, but defence counsel adduced evidence from a number of witnesses.
The grounds of appeal
47 The appellant’s seven grounds of appeal are as follows.
48 Ground 1 alleges that the trial judge 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.
49 Ground 2 alleges 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.
50 Ground 2A alleges 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.
51 Ground 3 alleges 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’.
52 Ground 4 alleges 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 is supported by two particulars. The first particular asserts that the evidence was not ‘significantly probative’ for the purposes of s 31A(2)(a) of the Evidence Act. The second particular asserts 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.
53 Ground 5 alleges 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 me finding that he 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.
54 Ground 6 alleges 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 assert that it was not open to her Honour to conclude beyond reasonable doubt that the appellant killed Ms Dodd.
55 On 12 July 2018, I referred the appellant’s application for leave to appeal to the hearing of the appeal.
The orders sought by the appellant and the State’s response to the orders sought
56 The orders sought by the appellant are that leave to appeal be granted, the appeal be allowed, the judgment of conviction be set aside and a judgment of acquittal be entered.
57 Counsel for the State submitted that grounds 1, 2, 2A, 3, 4 and 5 merely raise alleged express errors in the trial judge’s reasoning process. It was submitted that if the appeal were to be allowed on any of those grounds a new trial should be ordered. It is only if ground 6 were to be made out that it would be appropriate to enter a judgment of acquittal.
Ground 1: the appellant’s alibi
58 The appellant’s alibi is apparent from his statements to the police on 3 and 5 August 1999.
59 The particulars of the alibi are as follows:
(a) On 29 July 1999 at about 9.30 am, the appellant departed from his home to travel to Moora. He drove Mr McConnell’s vehicle. The journey from the appellant’s home to Moora was about 50 km. It took him ‘just over half an hour’ and would not have taken ‘more than 45 minutes’ to complete the journey. The vehicle could not travel at more than 80 km per hour.
(b) At about 10.00 am to 10.15 am the appellant arrived in Moora.
(c) When he arrived in Moora the appellant withdrew $496 from the Bankwest branch. He would have completed this transaction by about 10.10 am to 10.25 am.
(d) The appellant then returned some videos and hired some videos at a video store in Moora. He would have left the video store between about 10.25 am and about 10.45 am.
(e) Next, the appellant went to the Australia Post shop in Moora. He purchased a postal order for $80 to pay a fine to the Ministry of Justice and acquired an income tax pack. The appellant then went to a newsagency in Moora and acquired another income tax pack. He ‘wasn’t there long’.
(f) The appellant then went to the Supa Valu shop in Moora. He purchased ‘basic stores like bread, veggies and canned goods’. He would have spent about $150.
(g) Next, the appellant went to DJs Butcher shop in Moora, which is next door to Supa Valu. He purchased about $50 of meat. He usually had ‘a yarn’ to the butcher.
(h) The appellant could not recall the duration of his shopping at Supa Valu and DJs Butcher.
(i) The appellant then went ‘to drive out of town and stopped off at the bakery’. He went to the Pioneer Bakery in Moora and purchased ‘a couple of pies for lunch’. That was the last thing he did before leaving Moora. He was ‘pretty sure’ that he left Moora after 12.00 noon.
(j) The appellant arrived at his home at ‘around 1.00 pm’.
60 It was an agreed fact at the trial that at 1.36 pm on 29 July 1999 the appellant arrived on his motorcycle at the Badgingarra Roadhouse [440].
Ground 1: the trial judge’s findings in relation to the appellant’s alibi
61 The trial judge’s findings in relation to the appellant’s alibi were as follows.
62 At the trial, the State tendered as part of its case the appellant’s EROI with the police on 27 November 2013.
63 During his interview with the police on 27 November 2013, the appellant said that he was in Moora at the time the State alleged that Ms Dodd disappeared from North West Road. In her reasons, the trial judge referred to the appellant’s statement as ‘the alibi’. Her Honour observed that the appellant did not have any onus of proving that he was in Moora and that the burden remained on the State to prove that the appellant had committed the offence. Her Honour said ‘[the State] must eliminate any reasonable possibility that the alibi is true’ [29].
64 Her Honour recounted the evidence relating to the appellant’s movements on 29 July 1999 [323] ‑ [413] and arrived at conclusions about the evidence [433] ‑ [442].
65 Early on the morning of 29 July 1999, Mr McConnell went to work. On that day he worked with Bradley Hammond and Terry Jones. When Mr McConnell went to work his vehicle remained at the appellant’s home [334] – [335], [343].
66 The appellant had permission to use Mr McConnell’s vehicle on 29 July 1999. The appellant had told Mr McConnell that on 29 July 1999 he would travel to Moora in Mr McConnell’s vehicle to purchase household supplies and, after returning to his home, he would ride his motorcycle to Perth and attend a party on the weekend [336].
67 On the evening of 29 July 1999, Mr McConnell returned to the appellant’s home. Mr McConnell’s vehicle was in the shed at the rear of the home. Mr McConnell said the appellant did not usually park the vehicle in the shed. Mr McConnell noticed that the vehicle’s indicator lever had been broken. It was lying on the floor of the vehicle on the driver’s side. Mr McConnell found a note from the appellant in the home in which the appellant asked Mr McConnell ‘to separate the meat that [the appellant] had purchased that day’. Mr McConnell found a bulk package of meat in a freezer in the home which required repackaging into smaller lots for use [337] – [338].
68 It was the appellant’s case that in the statements he had made to the police he had told the truth about his movements on 29 July 1999. In particular, it was the appellant’s case that he had departed from Moora after 12.00 noon and had arrived at his home at about 1.00 pm and that he did not encounter Ms Dodd on the journey [339].
69 Catherine Edwards and Paul Springer were State witnesses at the trial and friends of the appellant. All of them shared a common interest in motorcycles. On Tuesday, 27 July 1999, Ms Edwards rode her motorcycle from Geraldton to the appellant’s home and Mr Springer rode his motorcycle from Perth to the appellant’s home. Ms Edwards and Mr Springer stayed at the appellant’s home on the nights of 27 and 28 July 1999 [341].
70 Her Honour found on the basis of evidence given by Ms Edwards and Mr Springer and on the basis of other evidence that early on the morning of 29 July 1999:
(a) Bradley Hammond drove to the appellant’s home;
(b) Bradley Hammond left his vehicle at the appellant’s home; and
(c) Mr Jones collected Mr McConnell and Bradley Hammond from the appellant’s home in Mr Jones’ vehicle and drove to work [343].
71 The trial judge found that at about 9.05 am on 29 July 1999 Ms Edwards and Mr Springer left the appellant’s home on their motorcycles and rode to the Badgingarra Roadhouse [344]. When they left the appellant’s home, the appellant was preparing to travel to Moora [345]. Prior to leaving the appellant’s home, Ms Edwards and Mr Springer had arranged with the appellant that later on 29 July 1999 the appellant would travel from Badgingarra to Perth and stay with them at their home in the Perth suburb of Beaconsfield. Mr Springer had organised a party for the weekend which the appellant intended to  attend. Ms Edwards expected the appellant to arrive at their Beaconsfield home by about 3.00 pm – 4.00 pm [347].
72 During the afternoon of 29 July 1999, Ms Edwards received a telephone call from Royal Perth Hospital. Ms Edwards was informed that the appellant had been involved in a road accident in Perth. A few days later, after he was released from hospital, the appellant stayed with Ms Edwards and Mr Springer at their home. He was in pain and using crutches [349].
73 On 29 July 1999 at about 9.30 am, Robyn Crouch, a State witness at the trial, departed from her family farm. The farm is located on the corner of North West Road and Badgingarra Road. She travelled to Moora. She estimated that, travelling at 110 km per hour, the journey took her about 45 minutes. Ms Crouch’s family farm is about 50 km from Moora. Her Honour found that if Ms Crouch travelled at an average speed of 110 km per hour it would have taken her only 27 minutes to drive to Moora. Her Honour concluded that, having regard to Ms Crouch’s estimate of 45 minutes, either she was driving slower than she recalled or she left home later than she recalled [356] ‑ [357].
74 On the trip from her home to Moora, Ms Crouch overtook the appellant, who was driving Mr McConnell’s vehicle. Ms Crouch estimated that the appellant was travelling at 70 km per hour. Ms Crouch knew the appellant because he was a gardener at Badgingarra Primary School and her daughter attended the school [358].
75 The trial judge found that Ms Crouch ‘would have arrived’ in Moora between 10.00 am – 10.10 am. Her Honour also found that the appellant would have arrived in Moora between 10.05 am – 10.15 am [359].
76 Ms Crouch saw the appellant while she was in Moora. They spoke for about five minutes. After the conversation the appellant walked towards Mr McConnell’s vehicle, which was parked outside the Australia Post shop. Her Honour found (on the basis of the time, 10.35 am, which was stamped on an Australia Post receipt given to the appellant that morning when he purchased a money order at the Australia Post shop in Moora) that the encounter between Ms Crouch and the appellant occurred shortly after 10.35 am [361] ‑ [362].
77 After speaking with the appellant, Ms Crouch walked to Purser’s Butchery. She spent 5 to 10 minutes in the butcher’s shop. Next, Ms Crouch went to Melrose Store and did her weekly grocery shopping. She estimated that the shopping would have taken 30 – 40 minutes to complete. Ms Crouch then drove home to her family farm. Ms Crouch gave evidence that she left Moora at about 11.45 am and that she arrived at her home at 12.30 pm [363].
78 The trial judge said that Ms Crouch was ‘a very impressive witness’. Her Honour accepted Ms Crouch’s evidence in all respects, except her evidence that she drove at 110 km per hour between her home and Moora and that the journey took 45 minutes. Her Honour said that she also had ‘some difficulty accepting [Ms Crouch’s] estimation of the time that she left Moora’. According to her Honour, Ms Crouch ‘should have been ready to leave Moora closer to 11.30 am, than 11.45 am’ [364].
79 On 29 July 1999, Travis Dunn, a State witness at the trial, was working at the Checkpoint Café & Video Store in Moora. Mr Dunn gave evidence that at about 10.30 am – 11.00 am the appellant entered the store. He returned 10 videos he had hired and selected 10 others to hire. Her Honour said that if, as the appellant told the police, the second thing he did when he arrived in Moora was to attend the video store, her Honour was of the opinion that the appellant was at the store ‘well before 10.30 am’. He could only have been in the video store at or close to 11.00 am and been at the Australia Post store at 10.35 am if he did some of his other shopping before he went to the video store and the Australia Post shop. Her Honour said that this scenario ‘seems so unlikely as not to be credible’. Her Honour noted that Mr Dunn did not have any documents to support his evidence that the appellant entered the video store at about 10.30 am – 11.00 am. Her Honour was satisfied that Mr Dunn was ‘in error’ and that the appellant was in fact ‘in the store around 10.20 am ‑ 10.30 am’ [365] – [367].
80 At 10.35 am the appellant undertook a transaction at the Australia Post shop in Moora [368].
81 On 29 July 1999, between ‘roughly’ 10.30 am – 11.00 am, Graeme Ellis, a State witness at the trial, saw the appellant in Moora. Mr Ellis and his wife had driven to Moora for a medical appointment at 10.00 am. After the appointment, Mrs Ellis parked their vehicle outside the Australia Post shop and went into the shop. Mr Ellis remained in the vehicle. The appellant, whom he knew, walked past. The appellant and Mr Ellis began a conversation while Mr Ellis was in the vehicle. Mr Ellis alighted and walked onto the footpath to continue the conversation [369].
82 The appellant asserted in his statements to the police that after he went to the Australia Post shop he did some shopping at the Supa Valu store in Moora. The trial judge found that if that assertion was correct then it would have taken him ‘no more than five minutes’ to drive from the Australia Post shop to Supa Valu [370].
83 In August 1999, the police collected till rolls and EFTPOS transaction records from Supa Valu in respect of 29 July 1999. However, no witness from Supa Valu was called at the trial to explain those documents.
84 The appellant said in his statements to the police that he went to Supa Valu before he went to DJs Butcher shop and the Pioneer Bakery. He also said that he usually spent about $150 at Supa Valu. However, in her Honour’s view, ‘given that [the appellant] knew that he was going to be away for at least a few days, it may be that he would have purchased fewer groceries than usual’. Her Honour added that it was not in dispute between the parties that the appellant would have paid cash at Supa Valu [376].
85 The trial judge examined the till rolls to ascertain whether there was any evidence of cash transactions between $100 – $200, which may have assisted in determining whether the appellant did in fact shop at Supa Valu on 29 July 1999 and, if so, when he was in the shop. Her Honour made the following observations and findings:
I have identified the following transactions:
(1) till roll A – cash transaction for $114.90, which is recorded at 12.21 pm but in corrected terms would have finished at about 12.37 pm;
(2) till roll B – cash transaction for $103.70 which is recorded at 10.07 am but in corrected terms would have finished at about 10.11 am;
(3) till roll B – cash transaction for $142.15 which is recorded at 11.02 pm [sic] but in corrected terms would have finished at about 11.06 am; and
(4) till roll B – cash transaction for $131.50 which is recorded at 12.31 pm but in corrected terms would have finished at 12.35 pm.
Transactions (1) at 12.21 pm – 12.37 pm and (4) 12.31 pm – 12.35 pm are too late to have been conducted by [the appellant] in accordance with his statement to the police and the agreed fact that [the appellant] paid his account at the roadhouse at 1.36 pm. That is because he could not have concluded either of those transactions and had time to go to the butcher, and Bakery, get home, pack and get to the roadhouse by 1.36 pm. Further, they are not consistent with the time he could have finished his business at the post office and newsagency. If he finished that business by 10.45 am at the latest, it is contrary to common sense that it took him over an hour and a half to do the grocery shopping.
Transaction (2) at 10.07 am – 10.11 am is too early to have been conducted by [the appellant], using the Australia Post receipt and Ms Crouch’s and Mr Ellis’ evidence as objective evidence that [the appellant] did not arrive in Moora until shortly after 10 am and he was on the other side of the railway line at 10.35 am.
That leaves on till roll B, transaction (3) for $142.15 which concluded at 11.02 am – 11.06 am as the transaction on the Supa Valu till rolls which could have been conducted by [the appellant] and which is consistent with the facts as I have found them. If that is his transaction, it would mean that his grocery shopping took him about 20 minutes to complete, which does not seem to be unreasonable [377] – [380].
86 Her Honour’s references in those passages to time ‘in corrected terms’ is to variations between the times printed on the till rolls for transactions and the times printed on the EFTPOS records for corresponding transactions. Her Honour said that in relation to till A there was always a variation of 15 – 16 minutes between ‘the till clock time and the time on the EFTPOS record of purchase’ and in relation to till B there was always a variation of ‘three to five minutes between the till clock time and the time on the EFTPOS record of purchase’. Her Honour was of the view that the times printed on the EFTPOS records of purchase were likely to be accurate ‘given that they are part of the national EFTPOS system’. However, her Honour added that she would take the till and  EFTPOS times into account ‘so that [the appellant] will not be prejudiced’ [374] – [375].
87 The appellant said in his statements to the police that he went to DJs Butcher after he went to Supa Valu. DJs Butcher and Supa Valu were in the same building. Darren Greay operated DJs Butcher. Mr Greay, who was a State witness at the trial, knew the appellant as a regular customer. The appellant usually shopped at around midday on a Thursday. Mr Greay took 5 – 10 minutes and a maximum of 15 minutes to cut up and package the appellant’s order [381] – [382].
88 Mr Greay recalled in evidence that the appellant had shopped on 29 July 1999. The trial judge gave detailed consideration to Mr Greay’s evidence [383] – [406]. Her Honour concluded that on 29 July 1999 the appellant went to DJs Butcher and ‘this is likely to have been around 11.10 am’. Her Honour also concluded that the appellant would have completed his purchase at DJs Butcher ‘by 11.25 am’ [406].
89 The appellant said in his statements to the police that after completing his purchase at DJs Butcher he went to the Pioneer Bakery and purchased two pies. In July 1999, Maria Russell was the Pioneer Bakery’s office manager. On 25 August 1999, at the request of the police, Ms Russell searched the Pioneer Bakery’s till records for 29 July 1999 for a transaction involving the sale of two pies, which would have cost $4.40. At that time the Pioneer Bakery had two tills. One was computerised and the other was not. On the computerised till records, Ms Russell found one transaction for two pies at a cost of $4.40. It was a cash sale and, consequently, no time of sale was recorded. Ms Russell did not find a transaction for $4.40 on the non-computerised till records [407]. On the basis of Ms Russell’s evidence, her Honour was satisfied that on 29 July 1999 there was only one sale at the Pioneer  Bakery for two pies only. That sale occurred between 10.30 am – 11.30 am, but her Honour noted that this time period was ‘a broad estimation’ [413].
90 In summary, the trial judge made findings, relevantly to ground 1, as to the appellant’s movements on 29 July 1999 as follows:
(a) The appellant ‘would have arrived in Moora between 10.05 am ‑ 10.15 am’ [359] (emphasis added).
(b) The appellant was in the video store in Moora ‘around 10.20 am ‑ 10.30 am’ [367] (emphasis added).
(c) The appellant completed the purchase of a money order at the Australia Post shop in Moora at ‘about 10.35 am’ [368] (emphasis added).
(d) Based on:
(i) a finding that it would have taken the appellant no more than five minutes to drive from the Australia Post shop in Moora to the Supa Valu shop in Moora [370];
(ii) the appellant’s statement that he ‘usually spent about $150.00’ at Supa Valu, the possibility that he bought fewer groceries than usual and the fact that he paid with cash [376]; and
(iii) an examination of till rolls and EFTPOS records from Supa Valu, which involved a reconstruction of those records to arrive at conclusions about the times at which certain transactions may have occurred [377] ‑ [380],
if the appellant had conducted the transaction reported on ’till roll B’, which her Honour found occurred between 11.02 am and 11.06 am, then ‘it would mean that [the appellant’s] grocery shopping took him about 20 minutes to complete, which does not seem to be unreasonable’ [380] (emphasis added).
(e) On 29 July 1999, the appellant went to DJs Butcher shop in Moora and ‘this is likely to have been around 11.10 am and … he would have concluded his purchase by 11.25 am’ [406] (emphasis added).
(f) On 29 July 1999, there was only one sale of two pies only at the Pioneer Bakery in Moora. That sale for $4.40 occurred ‘at between 10.30 am ‑ 11.30 am, but that is a broad estimation’ [413] (emphasis added).
91 The trial judge found that ‘if I accept that [the appellant] transacted business in Moora at the places he told the police he [had] visited, he is likely to have left Moora around 11.30 am’ [434]. Her Honour said she was ‘satisfied that the alibi is false, in that [the appellant] did not leave Moora after [12.00 noon]’ [434]. There was ‘no reasonable possibility that the alibi is true’ [434].
Ground 1: the appellant’s submissions
92 By ground 1, the appellant does not challenge any of the trial judge’s findings of fact that were based on credibility assessments. Instead, the appellant submitted that her Honour’s primary findings of fact, and the inferences that should properly be drawn from those facts, demonstrated that her Honour’s conclusion that there was no reasonable possibility that the alibi was true, was erroneous.
93 Counsel for the appellant noted that the State’s case about the appellant’s alibi, and about his opportunity to commit the offence, relied upon eyewitness accounts and business records to establish Ms Dodd’s movements and the appellant’s movements on 29 July 1999, about 18 years before the commencement of the trial. Counsel submitted that the estimates of the eyewitnesses in relation to time and speed were unreliable and that there were ‘significant problems with drawing any reliable conclusions from business records’. Her Honour’s conclusions were based upon estimates and, to some extent, speculation.
94 It was submitted that:
(a) the trial judge’s conclusion that the appellant’s alibi was false, in that he did not leave Moora after 12.00 noon, was based upon speculation as to when the appellant completed his shopping at Supa Valu;
(b) that speculation then formed the basis of findings about the time that the appellant was ‘likely’ to have been, or would have been, in DJs Butcher; and
(c) those findings about DJs Butcher then influenced conclusions about when the appellant left the Pioneer Bakery, or the finding about when he left the Pioneer Bakery was based only on a ‘broad estimation’ of time arrived at as a result of reconstruction and guesswork.
95 According to counsel for the appellant, her Honour’s reasoning process should not (and could not properly) have resulted in a conclusion that the State had proved beyond reasonable doubt that the alibi was false. Her Honour should have concluded either that the alibi was true or, at the very least, that the State had failed to prove beyond reasonable doubt that the alibi was false. Her Honour should have found that it was reasonably possible that the alibi was true.
96 It was submitted that the trial judge’s error was reinforced by the following matters:
(a) Her Honour found erroneously that if the appellant had left Moora at any time between 12.00 noon and 12.10 pm then Ms Crouch ‘should have overtaken [the appellant] … by the time she got to Badgingarra Road’ [363]. It was argued that this conclusion was obviously wrong. Ms Crouch had given evidence that she left Moora on 29 July 1999 at about 11.45 am [363]. She knew the appellant and recognised Mr McConnell’s vehicle [358]. Counsel for the appellant submitted that it would have been impossible for Ms Crouch to have overtaken the appellant if she had left Moora before the appellant. Further, the fact that Ms Crouch gave evidence that she did not see Ms Dodd on North West Road should have given rise to a reasonable doubt about the appellant’s guilt. It was argued that it was unclear to what extent her Honour’s erroneous finding that Ms Crouch ‘should have overtaken [the appellant]’ influenced her Honour when she made findings about the timing of the appellant’s movements and the truthfulness of his alibi.
(b) Subject to counsel for the appellant’s submissions about her Honour’s observations and findings at [438] – [439], counsel complained that her Honour did not make any findings about the credibility or reliability of the appellant’s statements to police as to his movements on 29 July 1999. Also, her Honour did not refer to the fact that the appellant made the statement voluntarily within four days of 29 June 1999 and at a time when the appellant was not a suspect. Further, her Honour did not refer to the fact that the appellant’s account to police about his movements on 29 July 1999 was otherwise true or consistent with the facts her Honour had found, as she noted later at [796].
97 Counsel for the appellant contended that it was unclear whether her Honour’s conclusions about the appellant’s alibi were based upon or influenced by her findings at [435] or her finding in the first sentence of [436]. Her Honour found at [435] that if the appellant left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area at around 12.07 pm. Her Honour also found at [435] that if, after she was last seen near the location of the 961 marker at around 11.40 am, ‘Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, [the appellant] would have been in the area where Ms Dodd was on North West Road at about 12.05 pm’. Her Honour found in the first sentence of [436] that the appellant had ‘the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm’. It was argued that if her Honour’s conclusions about the appellant’s alibi were based upon, or influenced by, the findings at [435] and the finding in the first sentence of [436], then it was also apparent from those matters that her Honour’s conclusion in relation to the alibi was erroneous. Those findings were not capable of supporting a conclusion that the State had proved beyond reasonable doubt that the alibi was false.
98 Counsel for the appellant further contended that it was unclear whether the trial judge’s findings at [434], namely that:
(a) if her Honour accepted that the appellant transacted business in Moora at the places he told the police he had visited, ‘he is likely to have left Moora around 11.30 am’; and
(b) her Honour was satisfied that the alibi was false in that the appellant ‘did not leave Moora after [12.00 noon]’ and there was no reasonable possibility that the alibi was true,
were based upon or influenced by her Honour’s observations and findings at [438] – [439], where her Honour said:
Given [the appellant’s] conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so.
Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police.
99 It was submitted that if her Honour’s findings at [434] were based upon or influenced by what her Honour said at [438] – [439], her Honour’s reasoning process in relation to the alibi was flawed in that:
(a) her Honour’s observations and findings at [438] – [439] were erroneous for the reasons advanced by counsel for the appellant in support of ground 3; and
(b) the observations and findings at [438] – [439] expressly left open the ‘possibility’ that the appellant did go to the Pioneer Bakery in Moora, as he said he did, and did not constitute a finding that the State had proved beyond reasonable doubt that the appellant’s assessment of ‘the time he did certain things’ was untrue.
100 According to counsel, the trial judge erred in finding that the alibi was false and that there was no reasonable possibility that it was true. Her Honour should have found that the State had failed to satisfy her beyond reasonable doubt that the alibi was false. Accordingly, so it was argued, a miscarriage of justice had occurred. Counsel argued that the appeal should be allowed on the basis of ground 1, the conviction should be set aside and a judgment of acquittal entered.
Ground 2: the trial judge’s finding that the appellant had the opportunity to encounter Ms Dodd on North West Road
101 The trial judge found that the last reliable sighting of Ms Dodd by the witnesses at the trial was made by Mr Stribley near the location of the 961 marker at about 11.40 am on 29 July 1999. Her Honour said that, by that time, Ms Dodd had walked 3 km east from Winjardie Road, where she had alighted from Ms Johnson’s vehicle. Her Honour said it was ‘likely that [Ms Dodd] continued to walk’ [318]. She had a further 13 km to travel before she would arrive at Seldom Seen farm. No witness who travelled along North West Road ‘after about 11.40 am’ on 29 July 1999 saw Ms Dodd or anyone else in that area [318]. There were no witnesses who claimed to have been in the area of the location of the 961 marker ‘from around 11.40 am – 12.10 pm’, apart from Mr Peacock and Mr Barrett, but her Honour was of the view that Mr Peacock’s and Mr Barrett’s failure to see Ms Dodd was not decisive [318].
102 There were witnesses who claimed to have driven along North West Road ‘at around the location of the 961 marker from about 12.10 pm onwards’. None of them claimed to have seen Ms Dodd, apart from Bruce Smith and Mr Davies. Her Honour did not accept Mr Smith’s or Mr Davies’ evidence [319].
103 The trial judge found that Ms Dodd ‘disappeared from somewhere between the location of the 961 marker and 2 km east of that area’ on North West Road between about 11.40 am and about 12.10 pm on 29 July 1999. It was ‘a sad, but inescapable, conclusion that she is dead’ [321]. Her Honour based that conclusion upon a number of facts, namely that there had been ‘no reliable sightings of [Ms Dodd] since then, despite extensive searches’; inconsistently with her past behaviour, Ms Dodd had not contacted her parents, family or friends; Ms Dodd’s bank account and her Centrelink file had not been used since 29 July 1999; and no one using her name or her identity had been recorded as departing from Australia [321]. Her Honour elaborated:
Ms Dodd had no means of leaving North West Road by herself. Indeed, she was intent on following it until she got to the Seldom Seen farm. It was her intention to hitchhike to the Seldom Seen farm. Given that she disappeared from the road and never arrived at her destination, another person must have picked her up from the road. In order to do so, this person must have had a vehicle of some description. It is a further inescapable conclusion that whoever picked her up was also responsible for her death [322].
104 Her Honour said she was satisfied that the appellant drove from his home to Moora in Mr McConnell’s vehicle on 29 July 1999, where he visited various retailers and conducted various transactions with them, and that he then returned to his home in the vehicle [433].
105 The trial judge said that the ‘matter for [her] to determine’ was whether the timing of the appellant’s movements in Moora would have enabled him ‘to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm’ on 29 July 1999 [433].
106 Her Honour said that:
(a) if she accepted that the appellant had transacted business in Moora at the places he told the police he had visited, the appellant was likely to have left Moora at ‘around 11.30 am’;
(b) she was satisfied that the appellant’s alibi was false in that he did not leave Moora after 12.00 noon; and
(c) there was no reasonable possibility that the appellant’s alibi was true [434].
107 The trial judge reasoned that:
(a) if the appellant had left Moora ‘at 11.30 am’ and had driven to the location of the 961 marker at 80 km per hour, he would have arrived at that area at ‘around 12.07 pm’; and
(b) if, after she was last seen near the location of the 961 marker at ‘around 11.40 am’, Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, ‘[the appellant] would have been in the area where Ms Dodd was on North West Road at about 12.05 pm’ [435].
108 Her Honour found that the appellant had ‘the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm’ [436]. Although the timeframe for the appellant ‘to encounter and pick up Ms Dodd’ was ‘extremely tight’, that was ‘to be expected’ [436]. Her Honour elaborated:
If [the appellant] is responsible for picking up Ms Dodd, then there will be no evidence of her being on North West Road after he drove past the area where she was on the road, and given that the encounter was opportunistic as he drove along the road, there will be no evidence that he had the opportunity to pick her up apart from that limited time he would have been driving past her location.
If [the appellant] did not go to the Bakery or if he finished his business in Moora before 11.30 am, which is quite possible, he had the opportunity to encounter Ms Dodd between 11.45 am and 12.05 pm [436] – [437].
109 The trial judge then made findings about the credibility of the appellant’s account of his movements on 29 July 1999, as follows:
Given [the appellant’s] conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so.
Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police [438] – [439]. 
110 The appellant’s convictions, to which her Honour referred, comprised the appellant’s conviction on 26 November 2007 in the District Court of Queensland, upon his pleas of guilty, of a number of offences against Ms M. 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, commencing shortly after midnight on 31 May 2007.
111 Next, the trial judge considered whether, if the appellant did encounter Ms Dodd on North West Road, he had sufficient time, between encountering her and 1.36 pm on 29 July 1999 (when it was agreed between the parties that he was at the Badgingarra Roadhouse), to kill Ms Dodd and dispose of her body. Her Honour was of the opinion that it would have taken ‘very little time’ for the appellant to have killed Ms Dodd [441]. Her Honour added:
If [the appellant] had attacked her and she had resisted, it is quite possible that he could have injured her in order to subdue her and thereby have caused her death within a short period of time. However it is not logical that this could have occurred on North West Road. He certainly could not have concealed her body on the road. [The appellant] would have had to drive somewhere more secluded in order to do this. One such place he could have attacked her would have been on his property. He may also have concealed her body there. However [the appellant] was familiar with the area, having lived there for a number of years, and it is possible that he may have driven elsewhere. He then needed to have had time to leave her body somewhere it could not be found, leave his shopping in his house, write a note to Mr McConnell, pack a few belongings, collect his dog and ride to the roadhouse by 1.36 pm. [441]
112 Her Honour said that if the appellant had driven Mr McConnell’s vehicle at 80 km per hour, it would have taken him two or three minutes to drive to his home, depending on the precise location at which he picked up Ms Dodd, and another six minutes to travel from his home to the Badgingarra Roadhouse. If the appellant did not take Ms Dodd to any other place, he would have had about one hour 20 minutes to kill Ms Dodd, conceal her body and complete the other tasks which her Honour had described. If he had driven (with Ms Dodd alive or dead) to some other location, that period of time would have been shortened, but in any case he would have had sufficient time to kill Ms Dodd, conceal her body and complete the other tasks before riding to and arriving at the roadhouse by 1.36 pm [442].
Ground 2: the appellant’s submissions
113 Counsel for the appellant asserted in relation to ground 2 that even if it was open to the trial judge to find that there was no reasonable possibility that the appellant’s alibi was true, there remained a very significant issue to resolve. That issue was whether the State had proved beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd on North West Road. According to counsel, even if the State proved to her Honour’s satisfaction that the appellant did leave Moora before 12.00 noon on 29 July 1999, there was still the potential for Ms Dodd to have ‘gone missing’ before the appellant reached the point where she disappeared. It was submitted that her Honour erred in finding that the appellant had the opportunity to encounter Ms Dodd on North West Road and that this error occasioned a miscarriage of justice.
114 By ground 2, as with ground 1, the appellant does not challenge any of her Honour’s findings of fact that were based on credibility assessments. Instead, the appellant submitted that her Honour’s primary findings of fact, and the inferences that should properly be drawn from those facts, demonstrated that her Honour’s conclusion that the appellant had the opportunity to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm on 29 July 1999, was erroneous.
115 Counsel submitted that it can be inferred from the trial judge’s reasons at [340] that her Honour recognised, correctly, that it was necessary for her to be satisfied beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd on North West Road, notwithstanding her Honour’s satisfaction beyond reasonable doubt that the appellant had left Moora before 12.00 noon.
116 It was submitted that, ultimately, her Honour found, by the following process of reasoning, that the appellant did have the opportunity to encounter Ms Dodd on North West Road. First, her Honour analysed the evidence relating to Ms Dodd’s movements on 29 July 1999. Next, her Honour analysed the evidence relating to the appellant’s movements on that date. Finally, after completing the analysis of Ms Dodd’s and the appellant’s movements on 29 July 1999, her Honour made a number of findings at [433] – [439].
117 Counsel asserted that it was ‘difficult to identify with certainty’ the trial judge’s ‘actual findings’ which formed the basis for her conclusion that the appellant had the opportunity to encounter Ms Dodd on North West Road. In particular:
(a) Counsel argued that the first sentence of [436], namely ‘I find that [the appellant] had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm’, strongly suggested that her Honour positively found that the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm on 29 July 1999.
(b) However, counsel argued that the finding in the first sentence of [436] appears to have been made on the basis of her Honour’s observations at [434] – [435], namely:
My finding in this regard is that if I accept that [the appellant] transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am. I am satisfied that the alibi is false, in that he did not leave Moora after 12.00 pm. There is no reasonable possibility that the alibi is true.
If he left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area at around 12.07 pm. If, after [Ms Dodd] was last seen near the location of the 961 marker at around 11.40 am Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, [the appellant] would have been in the area where Ms Dodd was on North West Road at about 12.05 pm.
(c) Counsel submitted that, with the exception of the second sentence of [434], the observations at [434] – [435] are expressed as conditions of the finding in the first sentence of [436], rather than actual findings of fact. However, at [437], her Honour said that ‘[i]f [the appellant] did not go to the Bakery or if he finished his business in Moora before 11.30 am, which is quite possible, he had the opportunity to encounter Ms Dodd between 11.45 am and 12.05 pm’.
118 It was submitted that, when the trial judge’s reasons are considered as a whole, either her Honour did not in fact find that the appellant had the opportunity to encounter Ms Dodd on North West Road ‘between 11.45 am and 12.05 pm’ or, if she did make that finding, then it was erroneous having regard to the following matters:
(a) By contrast with the words used in the first sentence of [436], her Honour did not expressly state that she found that the appellant had the opportunity to encounter Ms Dodd on North West Road ‘between 11.45 am and 12.05 pm’. Instead, when discussing at [437] – [439] whether the appellant went to the Pioneer Bakery or whether he finished his business in Moora before 11.30 am, her Honour referred only to ‘possibilities’, in a context in which the State was required to prove beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd.
(b) Her Honour said at [793] that she had found that the appellant was in the area of the location of where she considered that Ms Dodd went missing ‘at about midday on 29 July 1999’.
(c) Her Honour found at [406] that ‘[the appellant] went to DJs Butcher in Moora and this is likely to have been around 11.10 am and that he would have concluded his purchase by 11.25 am’. According to counsel, this means that her Honour could not positively have found that the appellant had the opportunity to encounter Ms Dodd before about 12.00 noon, even if her Honour positively had found that he did not go to the Pioneer Bakery before leaving Moora.
(d) When considering the evidence of Keith Barrett, a State witness at the trial, at [229] – [239], her Honour made reference to the finding she made later  in her reasons about the appellant’s movements. The consideration of Mr Barrett’s evidence, especially at [236] – [239], appears to be based on a finding that the appellant left Moora at about 11.30 am. This is because the evidence suggested that Mr Barrett himself left Moora ‘at around 11.30 am’ [229].
(e) Her Honour erroneously took into account the fact that the appellant had been convicted of serious offences against Ms M when assessing the weight to be given to the appellant’s statements to the police. The fact that he was convicted of those offences about eight years after he gave those statements meant that the convictions were not logically capable of affecting the appellant’s credibility at the time he made the statements.
(f) Her Honour also erroneously reversed the onus of proof, or failed properly to apply the onus of proof, when her Honour decided that she was not ‘minded to accept’ that the appellant visited all of the businesses that he said in his statements he had visited ‘without independent proof that he did so’. It was not for the appellant to adduce independent proof of his movements. The absence of independent proof of his movements was not a factor that should have been used by her Honour in deciding whether to accept his statements to the police about those movements. It was for the State to prove beyond reasonable doubt, based upon all of the evidence, that the appellant did have the opportunity to encounter Ms Dodd.
119 Counsel for the appellant also advanced submissions on the basis that the trial judge did find, as she stated at [436], that the appellant had the opportunity to encounter Ms Dodd on North West Road ‘at about 12.05 pm’. Counsel asserted that this finding was erroneous in that:
(a) the finding of opportunity was based upon unproven assumptions;
(b) the finding of opportunity was not open having regard to the evidence of witnesses whose evidence was accepted by her Honour;
(c) the finding of opportunity (and the finding that the appellant’s alibi was false) was not open based on her Honour’s findings about Ms Crouch’s evidence; and
(d) the finding of opportunity was not open because her Honour did not find, beyond reasonable doubt, that Bruce Smith did not see Ms Dodd at the intersection between Coalara Road and North West Road at around 1.30 pm.
120 As to the contention that her Honour’s finding of opportunity was based on unproven assumptions, it was submitted:
(a) First, the finding that the appellant had the requisite opportunity at about 12.05 pm was based on an assumption that was not proved at the trial or found by her Honour, namely that the State had proved that Ms Dodd had not gone missing before 12.05 pm. Her Honour’s finding at [321] was that Ms Dodd ‘disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road, between about 11.40 am and 12.10 pm on 29 July 1999’. Her Honour inferred that Ms Dodd went missing during that period because ‘[n]o witness who travelled on North West Road after about 11.40 [am] sighted Ms Dodd or anyone else in that area. There were no witnesses who claimed to have been in the area of the location 961 marker from about 11.40 am – 12.10 pm, apart from Mr Peacock and Mr Barrett’ (emphasis added) [318]. The fact that there were no witnesses who claimed to have been in the relevant part of North West Road between about 11.40 am and 12.10 pm proved nothing about when Ms Dodd went missing, other than that it was after 11.40 am. In particular, that fact did not prove that Ms Dodd had not already left the relevant part of North West Road before 12.05 pm. It was implicit in the appellant’s submissions that the State was obliged to prove beyond reasonable doubt that Ms Dodd had not ‘gone missing’ before 12.05 pm. Accordingly, it was not open to her Honour to find, and she erred in finding, that the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm.
(b) Secondly, the finding that the appellant had the requisite opportunity was based on a further assumption that was not the subject of any direct evidence and, also, was not capable of being inferred and, in any event, was not proved. The further assumption was that the appellant drove at an average speed of 80 km per hour when he drove from Moora towards his home near Badgingarra. There was no evidence of the average speed at which the appellant drove at the relevant time. The only evidence from which an inference could be drawn about the appellant’s average speed was contained in the appellant’s statements to the police, namely that the driving distance from his home to Moora was about 50 km and the time to make that journey in Mr McConnell’s vehicle was about 30 minutes; Mr McConnell’s vehicle ‘doesn’t do more than 80 km an hour’; and Mr McConnell’s vehicle would overheat if it was driven in excess of that speed. As her Honour noted at [436], the timeframe for the appellant to encounter and pick up Ms Dodd was ‘extremely tight’. That observation demonstrated the difficulties inherent in her Honour’s reliance upon assumptions as to the appellant’s average speed in making findings about opportunity. For example, if the appellant had left Moora at 11.30 am and had travelled at an average speed of 75 km per hour or 70 km per hour then, based upon her Honour’s approach at [435], the appellant would have arrived at the location of the 961 marker at about 12.09 pm or 12.12 pm respectively, rendering the timeframe even tighter, if not impossible. Those difficulties become even greater if the time at which the appellant left Moora is also adjusted, even by five minutes.
(c) Thirdly, the finding that the appellant had the requisite opportunity was based upon a further assumption that Ms Dodd (if she was still on North West Road at all relevant times) continued to walk towards Moora after she was last seen at 11.40 am and the further assumption that she walked at an average speed of about 4.5 km per hour. There was no evidence to support either of those assumptions.
121 As to the contention that her Honour’s finding of opportunity was not open having regard to the evidence of witnesses whose evidence was accepted by her Honour, it was submitted:
(a) Her Honour’s conclusion at [321] that Ms Dodd disappeared between about 11.40 am and about 12.10 pm was based upon a finding that ‘[t]here were no witnesses who claimed to have been in the area of the 961 marker [during that time], apart from Mr Peacock and Mr Barrett’ [318]. However, a necessary step in reaching that conclusion was her Honour’s finding that the evidence of Mr Peacock and Mr Barrett that they did not see Ms Dodd was ‘not decisive’ [318].
(b) Her Honour dealt with Mr Peacock’s evidence at [219] – [227]. Her Honour ultimately found that his evidence was consistent with Ms Dodd not being on the side of North West Road between the Badgingarra Roadhouse and Wathingarra Road when he drove to Badgingarra between 11.30 am and 12.10 pm. Although Mr Peacock described his estimates of times as ‘rubbery’, her Honour did find that he was at Rural Traders in Badgingarra at about 12.20 pm. Her Honour took into account the evidence of Lyall Schwan, who ran the store, in making that finding [221] – [222]. Given the time that it would have taken Mr Peacock to drive from his farm to Badgingarra, and the time that her Honour found that Mr Peacock was at Rural Traders, Mr Peacock must have left his farm before 12.00 noon. If he left his farm before 12.00 noon then it was reasonably possible that Mr Peacock passed the point at which her Honour found Ms Dodd disappeared at or very close to the time that her Honour found the appellant had the opportunity to encounter her. In any event, it was reasonably possible that Mr Peacock drove in the vicinity of the 961 marker between 11.40 am and 12.10 pm but did not see any person or any vehicles on the road. That evidence, and her Honour’s findings about it, should have given rise to a reasonable doubt about whether the appellant had the opportunity to encounter Ms Dodd.
(c) Her Honour dealt with Mr Barrett’s evidence at [236] – [239]. Mr Barrett gave evidence that he left Moora at about 11.30 am and drove on North West Road towards Badgingarra. Mr Barrett said that he ‘definitely’ did not see a person on the road. He did not recall overtaking any vehicles. Her Honour noted that Mr Barrett’s evidence gave rise to three possibilities, namely that Mr Barrett left Moora around the same time as the appellant; that Mr Barrett left Moora before the appellant; or that Mr Barrett left Moora after the appellant. Her Honour then examined each of those possibilities. Her Honour concluded at [237] that it did not seem possible that, if Mr Barrett left Moora ‘even five minutes after [the appellant]’, he would have gained sufficient distance on the appellant to have seen Mr McConnell’s vehicle at or near the location of the 961 marker. On that basis, her Honour concluded that the appellant would have had the opportunity to stop, pick up Ms Dodd and drive on without that event having been seen by Mr Barrett. However, whether Mr Barrett travelled at an average speed of 116 km per hour (as referred to by her Honour at [230]) or at 96 km per hour (as referred to by her Honour at [235]), it was reasonably possible that Mr Barrett would have gained sufficient distance on the appellant, if the appellant had left Moora even five minutes before Mr Barrett, to have reached the location of the 961 marker, and a point 2 km east of that location, before the appellant. As her Honour noted at [238], if Mr Barrett left Moora just a few minutes after the appellant, or if Mr Barrett left Moora before the appellant, then Mr Barrett would have reached the location of the 961 marker before the appellant. Accordingly, based upon her Honour’s findings, it was reasonably possible that Mr Barrett reached the location of the 961 marker, and a point 2 km east of that location, before the appellant. As her Honour noted at [239], that raised the issue of whether Ms Dodd was still in the area of the 961 marker or a point 2 km east of that marker when the appellant passed those points. If it was reasonably possible that Ms Dodd was not in the area of those points when the appellant drove past those points then it was reasonably possible that Ms Dodd had disappeared before the appellant drove past those points. Her Honour ultimately concluded that the fact that Mr Barrett did not see Ms Dodd was ‘not decisive’ [318]. However, whether it was ‘decisive’ was not to the point. As her Honour found at [239], one of the possible explanations for Mr Barrett not having seen Ms Dodd was that ‘she was not on the road’. The fact that there were other possible explanations for the fact that Mr Barrett did not see Ms Dodd, that were consistent with Ms Dodd not having already disappeared, did not exclude, as a reasonable possibility, that Ms Dodd disappeared between 11.40 am and the time that Mr Barrett drove past the points in question, but before the appellant drove past.
(d) The evidence of each of Mr Peacock and Mr Barrett, whether considered alone or in combination, should have given rise to a reasonable doubt about whether the appellant had the opportunity to encounter Ms Dodd between 11.40 am and 12.10 pm on 29 July 1999.
122 As to the contention that her Honour’s finding of opportunity (and the finding that the appellant’s alibi was false) was not open based on her Honour’s findings about Ms Crouch’s evidence, it was submitted:
(a) Her Honour, in the course of reasoning towards the conclusion that the appellant’s alibi was false and that, in any event, the appellant had the opportunity to encounter Ms Dodd, referred in detail at [356] – [364] to the evidence of Ms Crouch.
(b) Her Honour said at [364] that Ms Crouch was a ‘very impressive witness’ and that her Honour accepted Ms Crouch’s evidence ‘on all counts’ except in relation to some of her estimations of speed and timings.
(c) However, her Honour found at [363] that, if Ms Crouch had left Moora at about 11.45 am and the appellant had left Moora between 12.00 noon and 12.10 pm, ‘[Ms Crouch] should have overtaken [the appellant] in Mr McConnell’s [vehicle] by the time she got to Badgingarra Road’. That finding was plainly wrong. If Ms Crouch had left before the appellant then it would have been impossible for her to have overtaken the appellant.
(d) Her Honour took Ms Crouch’s evidence into account when considering the appellant’s opportunity and Ms Dodd’s movements. Her Honour concluded at [228] that Ms Crouch would have been at the location of the 961 marker at about 12.10 pm to 12.15 pm and that Ms Crouch did not see Ms Dodd at that time. Her Honour concluded that this was consistent with Ms Dodd not being on North West Road, east of Badgingarra Road, at that time.
(e) However, when her Honour came to consider Ms Crouch’s evidence in the context of the appellant’s movements, at [357] – [364], her Honour said that she had some difficulty accepting her estimation of the time that she left Moora. Her Honour observed that ‘she should have been ready to leave Moora closer to 11.30 am, than 11.45 am. Unfortunately, she was not questioned about this time discrepancy’ [364].
(f) If Ms Crouch left Moora closer to 11.30 am, and travelled at an average speed of 110 km per hour, then Ms Crouch should have passed the location of the 961 marker at about 11.56 am to 12.06 pm (based on a range of departure times between 11.30 am and 11.40 am). However, her Honour made no reference to this possibility in her assessment at [228] of Ms Dodd’s movements. That approach to Ms Crouch’s evidence is capable of giving rise to the reasonable possibility that a ‘very impressive witness’, in relation to whom her Honour accepted ‘her evidence on all counts’, did not see Ms Dodd in the vicinity of the 961 marker before the appellant arrived at that point because Ms Dodd had already disappeared.
(g) Even if her Honour did find that the appellant had the opportunity to encounter Ms Dodd between 11.45 am and 12.05 pm, the submissions made by the appellant at [120] above apply. A conclusion that the appellant had the requisite opportunity between 11.45 am and 12.05 pm relies upon at least two unproven assumptions, namely that Ms Dodd was still on North West Road at 11.45 am and that the appellant drove from Moora at an average speed of 80 km per hour.
123 As to the contention that her Honour’s finding of opportunity was not open because her Honour did not find, beyond reasonable doubt, that Bruce Smith did not see Ms Dodd at the intersection between Coalara Road and North West Road at around 1.30 pm, it was submitted:
(a) On 29 July 1999, Mr Smith was employed by Telstra. He was working with Graham Burnett, but they were driving separate cars. Mr Smith gave evidence that he saw a girl who was wearing blue jeans, a jumper tied around her waist and a light coloured top [198]. He saw the girl about 15 km beyond the 961 marker, in the direction of Moora, at about 1.30 pm. If the girl seen by Mr Smith was Ms Dodd then he saw her at a time when the appellant could not have previously encountered her and then later killed her.
(b) Her Honour identified at [195] – [213] a number of difficulties with Mr Smith’s evidence. It was open to her Honour to decide not to accept his evidence. However, the only conclusion her Honour reached was that Mr Smith’s evidence did not ’cause [her] to believe that Ms Dodd somehow made it to that point on North West Road’, on the basis that there was nothing to support his evidence [213].
(c) Although Mr Smith’s evidence did not cause her Honour to believe that Ms Dodd had made it to the relevant point on North West Road, that was not the end of the matter. Given the potential importance of Mr Smith’s evidence to the question of whether the appellant had the opportunity to encounter Ms Dodd, it was necessary for her Honour to be satisfied beyond reasonable doubt that Mr Smith’s evidence about seeing a girl was unreliable or that he was untruthful. However, nothing in her Honour’s reasons indicates that she reached either of those conclusions.
(d) Her Honour found that Mr Smith was apparently honest and was trying to do his best to recall what he had seen and done on 29 July 1999 [212]. Her Honour found that Mr Burnett’s evidence was more credible than Mr Smith’s. However, it did not follow from that finding, and her Honour did not expressly find, that Mr Smith’s evidence did not raise a reasonable doubt about whether Ms Dodd had made her way to the point on North West Road where Mr Smith said that he saw a girl at about 1.30 pm.
(e) In the absence of a conclusion by her Honour that Mr Smith’s evidence did not raise a reasonable doubt, it follows that her Honour erred in finding that the appellant had the relevant opportunity to encounter Ms Dodd.
(f) Her Honour observed at [213] that it made ‘little sense’ for Ms Dodd to be where Mr Smith said that he saw a girl and that, at the time he saw her, the girl was looking for a lift. That observation was based on the fact that Ms Dodd would have passed Seldom Seen farm to get to the relevant point. However, according to counsel for the appellant, it did in fact make sense for Ms Dodd to be in that location at about 1.30 pm when regard is had to the evidence of Ms Johnson.
(g) Ms Johnson gave Ms Dodd a lift earlier on 29 July 1999. Ms  Dodd alighted from Ms Johnson’s vehicle near the intersection of North West Road and Winjardie Road. During the journey Ms Johnson had a conversation with Ms Dodd about where Ms Dodd was going. Although Ms Dodd said things to Ms Johnson from which it could be inferred that she intended to go directly to Seldom Seen farm and to wait at the farm until her friends arrived at 6.00 pm, Ms Dodd also said things from which it could be inferred that she intended to go to Moora. Given the time of day, and the duration of the time she would have to wait at Seldom Seen farm, and the fact that Ms Johnson told Ms Dodd (who had already hitchhiked from Dongara) that farmers would be travelling along North West Road on that day to go to the bank in Moora, it could not be said that it made ‘little sense’ for Ms Dodd to have travelled beyond Seldom Seen farm.
124 Counsel for the appellant submitted that, in all the circumstances, the trial judge erred in fact in finding that the appellant had the opportunity to encounter Ms Dodd on North West Road. The State had to prove that fact beyond reasonable doubt before the appellant could properly be convicted of murder. Her Honour’s erroneous finding of fact occasioned a miscarriage of justice. Counsel argued that the appeal should be allowed on the basis of ground 2, the conviction should be set aside and a judgment of acquittal entered.
Grounds 1 and 2: the State’s submissions
125 Counsel for the State asserted that the appellant’s contentions in support of ground 1 (concerning the evidence as to his movements on 29 July 1999) and ground 2 (concerning the evidence as to his opportunity to encounter Ms Dodd on North West Road and Ms Dodd’s movements on 29 July 1999) do not accord with the relevant legal principles governing the consideration of circumstantial evidence.
126 It was submitted that the appellant’s contentions proceed on the false premise that certain ‘discrete facts’ had to be proved beyond reasonable doubt or that evidence inconsistent with those ‘discrete facts’ had to be disproved beyond reasonable doubt.
127 Counsel argued that the State’s case, reduced to its most fundamental propositions, was that the appellant’s guilt could be inferred beyond reasonable doubt from the following facts:
(a) the appellant had the opportunity to encounter Ms Dodd on North West Road within ‘a narrow timeframe’ in the vicinity of 12.00 noon on 29 July 1999;
(b) a hair belonging to Ms Dodd was found inside Mr McConnell’s vehicle which the appellant was driving on 29 July 1999;
(c) one of the earrings which Ms Dodd was wearing on 29  July  1999 was recovered from the seat cover of Mr McConnell’s vehicle; and
(d) the appellant had a propensity to pick up a lone female hitchhiker, to rape her and, in the course of doing so, to use extreme violence.
128 The trial judge did not accept that the hair found in Mr McConnell’s vehicle belonged to Ms Dodd. Her Honour concluded only that it was ‘possible’ that it was Ms Dodd’s hair, but without being persuaded that the hair in fact belonged to Ms Dodd [757].
129 Given that finding, it was necessary for her Honour to be satisfied beyond reasonable doubt (which she ultimately was at [787]) that the earring recovered from the seat cover of Mr McConnell’s vehicle belonged to Ms Dodd.
130 Counsel argued that the only indispensable intermediate fact which the State had to prove beyond reasonable doubt (apart from proving that there was no reasonable possibility that the appellant’s alibi was true) was that the earring recovered from the seat cover of Mr McConnell’s vehicle belonged to Ms Dodd. It was argued that the circumstantial evidence, in totality, overcame any gaps in the evidence as to the precise time and place at which Ms Dodd was taken from the road and as to precisely when the appellant was in the general location where she was taken.
131 Counsel asserted that the appellant seeks erroneously to elevate ‘discrete facts’ to the level of indispensable intermediate facts. Counsel argued that, with the exception of the alibi (which the State had to negative beyond reasonable doubt) and the earring (which the State had to prove beyond reasonable doubt belonged to Ms Dodd), her Honour needed only to be satisfied beyond reasonable doubt that the appellant had killed Ms Dodd, with the requisite intention for murder or in circumstances sufficient to constitute murder.
132 Counsel for the State accepted that the appellant could not have killed Ms Dodd unless he had encountered her in the vicinity of the 961 marker on North West Road ‘in a small time period proximate to midday’. However, it was argued that ‘opportunity’ or ‘presence’ at the place and time when Ms Dodd was last seen alive was not a discrete step in the reasoning process. Proof of opportunity (or disproof of alibi) was not a fact which was a necessary condition for establishing a further (and different) fact. Rather, evidence as to opportunity was one of a number of ‘strands in the cable’ rather than one of a number of ‘links in a chain’ as to the ultimate issue of whether the appellant killed Ms Dodd.
133 It was submitted that when the evidence concerning opportunity and presence is considered in the correct context (namely, the correct standard of proof for facts which are not indispensable ‘links in a chain’), the appellant’s criticisms of the trial judge’s reasons, in the context of grounds 1 and 2, ‘largely fall away’.
134 In any event, counsel argued that the appellant’s contentions raise various purported factual errors in her Honour’s reasoning process concerning the movements of both Ms Dodd and the appellant. It was submitted that, upon a fair reading of her Honour’s reasons, no error is apparent.
135 The State relied upon the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) in relation to any errors alleged in grounds 1 and 2 which this court finds have been established.
136 It was accepted by counsel for the State that the proviso would not be open if the appellant establishes that both opportunity and alibi were indispensable links in the chain of reasoning which the State had to prove beyond reasonable doubt and that any errors by her Honour were material to her ultimate conclusions on those issues.
137 Counsel submitted that if the proviso was open then the evidence as to the appellant’s opportunity to encounter Ms Dodd was substantial. The finding that the earring in Mr McConnell’s vehicle belonged to Ms Dodd was an ‘insurmountable obstacle’ to the appellant’s contention that he lacked the opportunity to encounter Ms Dodd. Accordingly, so it was submitted, even if her Honour’s reasons on the issues of opportunity and alibi were tainted by error, those errors did not give rise to a substantial miscarriage of justice.
Ground 2A: the trial judge’s finding that the earring found on the seat cover of Mr McConnell’s vehicle belonged to Ms Dodd
138 On the evening of 29 July 1999, the police were notified of Ms Dodd’s disappearance. She had failed to contact her family or friends.
139 Late on 30 July 1999, Detective Edward Rowe and Senior Constable Borbally drove from Perth to Moora and commenced an investigation into Ms Dodd’s disappearance. On 31 July 1999, Detective Senior Constable Shane Graham drove from Perth to Moora to join the investigation. The police investigation was called Operation Bluegum.
140 On 4 August 1999, Sergeant Craig Keals (who was then a Detective Senior Constable at Geraldton Police Station) and Constable Aaron Cleaver (from the Moora Police Station) took a statement from Mr McConnell.
141 On 5 August 1999, the police seized Mr McConnell’s vehicle. On 6 August 1999, the vehicle was examined forensically by Senior Constable Alexander Elliott and Sergeant John Davison, both of whom were experienced forensic officers.
142 The vehicle had a single bench seat with a continuous back rest. The vehicle was fitted with sash seatbelts for the driver and a passenger with a lap seatbelt for a middle passenger. The seat was covered by a one‑piece blue and grey geometrically patterned car seat cover. The seat cover ran down the back rest and was tucked into the crease between the back rest and the bench seat. The seat cover was worn, damaged and faded in places.
143 On 6 August 1999, the police made a video and took photographs of the interior of Mr McConnell’s vehicle. No item was visible on the car seat cover other than the seatbelts and buckles. The seatbelt webbing and buckles obscured those parts of the seat cover on which they rested. Other parts of the seat cover were obscured because the seat cover folded on itself. In the result, it was not possible to see the whole of the seat cover or the whole of the bench seat in either the video or the photographs.
144 On 6 August 1999, the police seized the car seat cover as an exhibit. It was placed in a large paper bag. Neither of the police officers (that is, Senior Constable Elliott and Sergeant Davison) saw an item of interest on top of the seat cover. Both of them gave evidence at the trial that the seat cover:
(a) was not examined carefully in situ;
(b) was not vacuumed prior to being removed; and
(c) was removed without disturbing its fabric so as to preserve as much of the trace evidence that may have been on top of the cover, within the cover.
145 In October 2012, Detective Sergeant Darren Bethell was appointed the investigating officer of Operation Bluegum. He was supervised by Detective Senior Sergeant Darryl Cox.
146 In July 2013, a coronial inquiry into Ms Dodd’s disappearance was listed to commence on 14 January 2014.
147 On 26 August 2013, Detective Sergeant Bethell decided that he would make further enquiries in relation to exhibits held by the police in relation to Operation Bluegum ‘to see what material we may still have from the searches’ [573].
148 On the morning of 27 August 2013, Detective Sergeant Bethell requested Sergeant Rodney Harris to ascertain which of the Operation Bluegum exhibits related to Mr McConnell’s vehicle. Sergeant Harris identified five exhibits relating to the vehicle. The exhibits included the seat cover.
149 On 3 September 2013, the police delivered to Carolyn Jones, an officer at PathWest, the exhibit bag containing the seat cover and other items taken by the police from Mr McConnell’s vehicle.
150 On 5 September 2013, Tracy Horner, a medical scientist at PathWest, retrieved the seat cover from the secured storage area of PathWest in order to examine it. Ms Horner opened the bag and removed the seat cover. She noted that the seat cover was sandy but folded neatly. Ms Horner opened the seat cover onto a bench covered with clean examination paper. The outside front of the seat cover was facing her. Ms Horner saw an earring lying on the passenger side of the seat cover, near the seatbelt buckle hole [597].
151 Ms Horner took an overall photograph of the seat cover and a close up photograph of the earring. As she straightened the seat cover to take the photographs, the earring did not appear to move [598].
152 The trial judge was of the opinion that the area in which Ms Horner found the earring on 5 September 2013 would have been completely or partially obscured by the seatbelt and buckle on 6 August 1999. Her Honour did not expect that a person looking at the seat cover in situ on 6 August 1999 would have been able to see the earring; alternatively, the person would only have been able to see the earring if he or she had ‘specifically looked underneath or very close to the seat belt webbing and buckle’ [600].
153 Her Honour made the following observations about the close up photograph of the earring taken by Ms Horner:
The close up photograph taken by Ms Horner of the earring shows a small silver coloured metal ankh earring with a turquoise coloured stone or ornament in the centre of the cross. It has a small silver coloured metal circle attached to the top of the cross. Attached to that small metal circle is a shepherd’s hook pierced ear attachment. In the photograph taken with the earring in situ on the car seat cover, the top portion of the hook passes underneath the small metal circle and runs underneath the left arm of the cross. It then lies on the top of the lower portion of the stem of the cross. The shepherd’s hook does not appear to be attached to the seat cover but it is possible that it was attached by a thread or two of the seat cover [601].
154 The trial judge compared the earring found by Ms Horner on 5 September 2013 with the earring described and drawn by Ms Frederickson for the police in August 1999:
The earring is nearly identical to that described and drawn by Ms Frederickson for the police in August 1999. The only differences are in the size of the loop at the top of the cross, the size of the small metal circle and the connection on the shepherd’s hook. Ms Frederickson’s drawing shows the small metal circle being relatively smaller and the connection on the shepherd’s hook being relatively larger than the same parts of the earring found by Ms Horner. However, when Ms Frederickson drew the earring in 1999 she added a note which said ‘Not certain of join’. [602]
155 On 5 September 2013, after she had found the earring, Ms Horner informed Sergeant Harris of her discovery. Mr Ken Sanderson, who was Ms Horner’s senior at PathWest, told Ms Horner to leave the earring in situ, to pack the seat cover away and to await further instructions. Ms Horner folded the seat cover, with the earring in situ, placed it in the exhibit bag and put the bag in PathWest’s secured storage area [603] – [604].
156 The next day, 6 September 2013, Ms Horner removed the exhibit bag from the secured storage area. She opened the bag and took out the seat cover and placed it on an examination table. Ms Horner turned over the seat cover. As she did, the earring dropped on to the examination table.  She estimated that the earring would have dropped no more than a centimetre. She picked up the earring and put it in a sterile container [606].
157 After taking photographs of the seat cover, Ms Horner removed the earring from the sterile container and took photographs of the earring. The earring was approximately 2.5 centimetres in length, excluding the shepherd’s hook attachment. Ms Horner noted that the shepherd’s hook attachment was bent so that the hook shape was flatter than a normal shepherd’s hook. Her Honour noted that at the time of the trial this feature of the earring was still apparent. Ms Horner thought that the main part of the earring was metallic. It was marked with the number ‘925’, which is the hallmark for sterling silver. Her Honour examined the earring and Ms Horner’s photographs of it. Her Honour said there were some scratches on the metal cross of the earring. It was a muted or dull silver colour. Her Honour concluded that the earring did not appear to be ‘brand new’ in 2013. However, her Honour said there was nothing to indicate that the earring ‘could not have been relatively new’ in 1999 [607].
158 The trial judge found, on the basis of Ms M’s evidence in relation to the charges the subject of:
(a) the appellant’s conviction on 26 November 2007 in the District Court of Queensland; and
(b) the propensity evidence relied upon by the State,
that in the course of his offending against Ms M the appellant told Ms M to remove a small silver five pointed star stud earring which she wore in the top of her left ear. Her Honour found that the appellant said to Ms M, ‘Take the earring out bitch’. Ms M did so and gave it to him. She did not see what the appellant did with the earring or where he put it [772].
159 Her Honour found that the propensity evidence proved that the appellant was ‘a person who would be likely to take an earring as a trophy from his victim’ [782]. Her Honour said that this would explain ‘why an earring was removed from Ms Dodd’s ear but not why it was left in Mr McConnell’s [vehicle]’ [782]. Her Honour added that ‘on the other hand, the earring may well have come out of Ms Dodd’s ear during a struggle with [the appellant]’ [782].
160 At the trial, defence counsel submitted to the trial judge that the evidence did not enable her to exclude, as a reasonable hypothesis, that the earring found by Ms Horner was dropped in Mr McConnell’s vehicle by a person other than Ms Dodd. Her Honour set out in more detail the submissions made on the appellant’s behalf:
First, [defence counsel] submits that given the damage to the hook there should have been trace DNA on the earring consistent with injury to the ear when it was removed. I do not accept that injury to the wearer would have occurred when the earring was removed. The wire of the shepherd’s hook is malleable and could be bent without cutting or injuring skin, even if I assume that the damage was done whilst it was in the ear of the wearer.
In any event, if this was so, there should have been trace DNA of whoever was the wearer on the earring and there was none. The absence of DNA on the earring proves nothing.
Alternatively, [defence counsel] submits that the shepherd’s hook’s bent shape, the age of the ute and the seat cover, the availability of earrings of the same type, and evidence of the number of people who had used the ute, means that it is possible that the earring was left in the car prior to or after 29 July 1999 by a person unrelated to Ms Dodd and that it sat in the crease between the bench seat and backrest until it was disturbed by the police when they removed the car seat cover from Mr McConnell’s ute on 6 August 1999 [784] – [786].
161 Her Honour said that ‘[i]solated from other evidence, that would be a reasonable possibility’ [787]. However, her Honour rejected the hypothesis advanced by defence counsel. Her Honour reasoned:
[W]hen considered with the evidence that:
(1) Ms Dodd was wearing an identical earring on 29 July 1999;
(2) [the appellant] was driving Mr McConnell’s ute on that date;
(3) [the appellant] had the opportunity to pick up Ms Dodd;
(4) [the appellant] told the police he would have picked her up had he seen her;
(5) [the appellant] has a propensity to violently assault female hitchhikers; and
(6) [the appellant] has a propensity to seek an earring from such victims,
I find that it is not a reasonable possibility that the earring found on the seat cover was left there prior to 29 July 1999 or that it belonged to anyone other than Ms Dodd [787].
Ground 2A: the appellant’s submissions
162 Counsel for the appellant asserted that ground 2 and the appellant’s submissions in support of that ground established that:
(a) the trial judge made errors of fact in finding that the appellant had the opportunity to encounter Ms Dodd; and
(b) the errors were material to her Honour’s finding.
163 It was submitted in relation to ground 2A that:
(a) the finding that the appellant had the opportunity to encounter Ms Dodd was material to her Honour’s finding that there was no reasonable possibility that the earring belonged to anyone other than Ms Dodd (appeal ts 96 – 97); and
(b) therefore, the finding in relation to the earring was also tainted by the material errors of fact made by her Honour in finding that the appellant had the opportunity to encounter Ms Dodd.
164 It was also submitted in relation to ground 2A that, even if it was unnecessary for the State to disprove the appellant’s alibi and prove opportunity beyond reasonable doubt, the errors in the trial judge’s reasoning in relation to alibi and opportunity, as alleged in grounds 1 and 2, were material in the context of ground 2A because those errors ‘infected’ her Honour’s finding that the earring belonged to Ms Dodd. That finding concerned an indispensable intermediate fact (appeal ts 96 – 97).
Ground 2A: the State’s submissions
165 Counsel for the State asserted that ground 2A is entirely dependent upon the success of ground 2. It cannot be made out independently. Ground 2A is also dependent upon this court concluding, in considering the application of the proviso to ground 2, that opportunity was not established on the evidence (regardless of the materiality of any errors of fact and regardless of whether the finding as to opportunity had to be established as an indispensable intermediate fact).
166 Counsel did not dispute that the finding as to opportunity was material to the finding in relation to the earring. Its materiality is apparent from the manner in which the trial judge expressed her conclusions on this issue. Counsel accepted that ground 2A must necessarily be made out if ground 2 succeeds and the proviso does not apply to that ground. However, it did not follow that the appeal ought to be allowed if ground 2A is made out. The State relied upon the proviso in relation to ground 2A.
Ground 3: the trial judge’s approach to assessing the honesty and reliability of the appellant’s accounts to police on 3 and 5 August 1999 about his movements on 29 July 1999
167 The trial judge made the following observations at [438] – [439] about the approach she would adopt in relation to the appellant’s statements to the police on 3 and 5 August 1999 about his movements on and about 29 July 1999:
Given [the appellant’s] conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so.
Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police.
Ground 3: the appellant’s submissions
168 Counsel for the appellant asserted in relation to ground 3 that the trial judge’s observations at [438] – [439], to the extent that they may have affected her Honour’s conclusion that the appellant did have the opportunity to encounter Ms Dodd on North West Road, reveal material error and that the error occasioned a miscarriage of justice.
169 It was submitted that, while it was open to her Honour to decide to give less weight to the appellant’s exculpatory statements because they were not made on oath and were not tested in cross-examination, it was not open to her Honour to take into account the fact that, almost eight years after he gave the statements to the police, he was convicted of serious offences against Ms M. As the convictions related to offending that occurred many years after the appellant’s statements to the police, that offending could not, as a matter of logic, have had any effect on the appellant’s credibility in 1999.
170 It was also submitted that the nature of the alleged tendency revealed by the serious offences which the appellant committed against Ms M in 2007 could have no bearing on an assessment of the appellant’s credibility in 1999, even if the alleged tendency was found to exist in 1999.
171 Counsel argued that, in any event, the trial judge’s approach to the  appellant’s statements to the police as to his movements on 29 July 1999:
(a) assumed that the only relevant question for her Honour to decide was whether she would ‘accept’ the statements;
(b) reversed the onus of proof by requiring that there be ‘independent proof’ or ‘independent evidence’ before her Honour would ‘accept’ the statements; and
(c) failed to give any effect to the warnings that her Honour gave herself at [56] – [61].
172 The warnings given by her Honour to herself at [56] – [61] were these:
In deciding whether the State has proved a charge against [the appellant], I must take into account that Ms Dodd disappeared over 18 years ago. Over time, memories fade and the long delay between her disappearance and the trial means that there was considerable opportunity for witnesses to be mistaken in their memories of relevant events. Sometimes the passage of time plays tricks on memories. In this case, very few witnesses were alleged to have given evidence inconsistent with their earlier written statements.
It is also a matter of common experience that the longer a witness believes something to have happened or that they saw something the more convinced they may become that it has happened or that they saw it. This can be so even if they were mistaken in their original recollection.
These issues are particularly relevant to witnesses’ recollections of the times they commenced or finished their journeys on North West Road and where and when they believe they saw Ms Dodd or the accused on or after 29 July 1999.
Although [the appellant] was interviewed by the police in 1999, he was not charged with wilful murder until after the EROI in November 2013. The longer the time between the disappearance of Ms Dodd and [the appellant] being charged, the more difficult it may be for him to answer the allegation that he was responsible for her disappearance. For example, time may have deprived him of the opportunity of obtaining evidence to support the alibi.
If he had been charged soon after July 1999 he would have been able to get more evidence from businesses in Moora and he may have had some documents, such as till receipts, to prove when he was in Moora. It is likely that the seat cover would have been examined earlier.
As a result of delay, [the appellant] has been placed at a real disadvantage in putting forward his case and testing the State’s case. I take these matters into account in his favour when deciding whether the State has proved a charge against him. I must scrutinise the evidence with great care, and not reach a conclusion of guilt on a charge unless I am satisfied beyond reasonable doubt of his guilt, after taking the forensic disadvantage into account.
173 It was submitted that, even if the trial judge did not positively ‘accept’ the  appellant’s statements to the police as to his movements on 29 July 1999, her Honour was still obliged to consider whether there was a reasonable possibility that the appellant’s statements were true. Although there were some indications that her Honour may have approached the issue of whether the appellant went to the Pioneer Bakery in that manner, it was apparent that her Honour did not approach the issue of the appellant’s assessment of the times that he did certain things in that manner.
174 Counsel argued that it was plain that her Honour approached the issue of the appellant’s movements on 29 July 1999 on the basis that she was not minded to accept his version without independent proof or evidence. That approach was erroneous in that it reversed the onus of proof. The appellant did not bear an onus to prove anything or to adduce any evidence at all.
175 It was submitted that the trial judge could not have taken into account the forensic disadvantages that she had identified at [56] – [61] and, simultaneously, have decided not to accept the appellant’s version of his movements on 29 July 1999 without independent proof or evidence. The forensic difficulties included being deprived, consequent upon the delay in charging him with Ms Dodd’s wilful murder, of the opportunity of obtaining evidence to support his alibi and of obtaining evidence from the businesses in Moora to establish with precision when he was in Moora and the businesses he had visited.
176 Counsel contended that the appeal should be allowed on the basis of ground 3 and the judgment of conviction should be set aside.
Ground 3: the State’s submissions
177 Counsel for the State asserted that the appellant’s contention that, as a matter of logic, the acts he committed in June 2007 could not have any relevance to his character in July 1999 and, therefore, could have no proper bearing on an assessment of the credibility of his statements to the police in August 1999, is founded upon a misunderstanding of the trial judge’s findings as to the appellant’s tendency.
178 Counsel emphasised that her Honour found at [779] that as at 1999 the appellant was the type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her for the purpose of subduing her or overpowering her so that she was incapable of resisting him and he could rape her. It was submitted that the fact that the appellant ‘had yet to commit or be convicted of the offending [that is, the offences he committed in June 2007] which was adduced to prove this tendency’ was ‘not to the point’. Counsel argued that ‘the existence of this tendency’ in 1999, combined with the fact that the appellant’s statements to the police in August 1999 were not on oath, entitled her Honour to give less weight to the exculpatory account the appellant gave to the police.
179 It was submitted, also, that it does not follow from the fact that the trial judge attributed less weight to the exculpatory account the appellant gave to the police that her Honour reversed the onus of proof. According to counsel for the State, her Honour’s reasons as a whole do not support that proposition. It was submitted that her Honour gave herself a ‘meticulous’ direction about who bore the onus in relation to the appellant’s alibi and opportunity (appeal ts 84 – 85).
180 Counsel argued that once the propensity evidence was found to be significantly probative of the issues at the trial, there was no impediment to her Honour using the propensity evidence to assess the appellant’s credibility. Further, counsel argued that it was ‘putting it too high’ to say that her Honour used the propensity evidence as a basis for finding that his statements to the police on 3 and 5 August 1999 were not credible unless supported by other evidence (appeal ts 80). Rather, it was apparent that her Honour found that the totality of the evidence in relation to the appellant’s alibi and opportunity overwhelmed the appellant’s statements.
181 The State relied upon the proviso in relation to ground 3.
Ground 4: the decision to admit evidence at the appellant’s trial, pursuant to s 31A of the Evidence Act, that on 1 June 2007 he had detained, assaulted and sexually assaulted a female hitchhiker, Ms M, in Queensland
182 Ms M’s evidence as to the offences which the appellant committed against her was admitted as propensity evidence at the trial. Her evidence was undisputed. The trial judge summarised Ms M’s evidence as follows:
[Ms M] was a 31-year-old seasonal worker on farms in the Atherton area of Queensland when she encountered [the appellant] on the Palmerston Highway in the early hours of 1 June 2007. At that time she was around 152 cm tall and weighed about 65 kg.
Ms M was hoping to be able to get a lift to Atherton from a passing truck after spending the evening with friends. Over the course of the evening, she had consumed six cans of premixed rum and soft drink. Ms M was very intoxicated.
At about 1.00 am, a white van pulled up beside her. [The appellant] was driving. [The appellant] asked her if she was alright and where she was going. She told him that she was okay and that she was going to a nearby town. He offered her a lift, and she accepted it. He introduced himself, but she did not catch his name. He said he was coming from a nearby hotel.
They were driving for about 10 minutes, during which [the appellant] asked Ms M a lot of personal questions, such as where she lived and if she was running away from something such as a domestic dispute. He told her she was safe with him, and he offered to take her to the local Police if she had any problems as he got on really well with the local police. He appeared normal and concerned. She did not feel uncomfortable.
Eventually, he stopped the van at an intersection. She went to get out, but he offered her a coffee at his place. He agreed to drop her off afterwards, and she went with him. He drove on a dirt driveway to a very rundown house. He welcomed her into his home. They went inside, and the interior was very bare. There was an outdoor chair in the kitchen, and he told her to have a seat, which she did.
He offered her wine. When she refused, he insisted she have a drink of some kind, so she accepted an orange juice. [The appellant] sat on the floor and asked if she smoked cannabis. She said that she did, even though she really did not. [The appellant] produced some cannabis and asked her to roll a joint, which she did. She knew it was cannabis, because she had seen it and used it before. She lit it and gave it to him. She then said that she was ready to go home. He offered to let her stay for the night, but she said she wanted to go. He told her she could walk, and that he was not going to give her a lift. Ms M went to leave. She unlocked a latch and opened the front door. She heard [the appellant] get up and follow her. She walked down the driveway and was just past the van when [the appellant] called out to her that he would give her a lift. She took a couple of steps back towards the van when [the appellant] started walking towards her. She noticed that his demeanour had changed, and he was threatening and scary. He approached her, grabbed her arm, and swung her around to face him. He had a large piece of wood in his hand, like an axe handle.
He raised it and hit Ms M twice on the top of her head. He may have hit her a third time, but she cannot recall. He went to hit her again, and she broke free of him and said to him ‘Why are you doing this?’ The [appellant] replied, ‘This is rape’. He told her that he liked her and that she was feisty.
He then dragged her back into the house by her hair. He dragged her into a room with a bed. He let go of her hair and grabbed her wrist. He told her to undress. Ms M was so frightened that she urinated. She was crying. He threatened to hit her again, if she did not do what he said, so she complied.
As she went to take off her top, the [appellant] grabbed her skirt, sports shorts and underpants and pulled them all down at once. When she was completely naked, the [appellant] pushed her onto the bed. [The appellant] sat on top of her and tied her hands to the bedhead with rope which he got from the railing of the bedhead. He then sexually assaulted her by rubbing his penis on the outside of her vagina. Ms M described that he was treating her like she was his girlfriend and the incident was normal.
He kept her wrists tied together, but let her loose from the bed. He demanded she suck his penis and forced her to do so. He slapped her when she stopped. He told her that if she did what she was told, she would be okay. The silver locket Ms M was wearing on a chain around her neck flipped across her face.
She removed it and threw it across the room, fearing [the appellant] would strangle her with it. [The appellant] did not notice that she had thrown it. He eventually put her back on the bed. She promised she would not run away if he did not tie her back to the bed. He was mumbling about something, but she could not comprehend what he was saying. He lay on top of her. She started crying and he smacked the bottom of her jaw and covered her mouth with his hands saying, ‘Shut up and keep quiet if you don’t want to get hurt’. He fondled and sucked her breasts and bit her left breast. She screamed and he slapped her and then covered her nose and mouth with his hand causing her to have trouble breathing. He made her suck his penis again.
[The appellant] dragged Ms M into the bathroom and made her have a shower. He made her suck his penis while she did so. He urinated on her back and hair. He showered her and then took her back into the bedroom. He lay on top of her and slapped her again. He then told her to take the star-shaped earring out of her left ear. It was a small silver five pointed star stud earring which she wore in the top of her left ear. He said to her ‘Take the earring out bitch’. She did so and gave it to him. She did not see what he did with it or where he put it, but he did not get off her.
After Ms M gave [the appellant] the earring, he started to kiss her again and was licking and sucking her breasts. [The appellant] asked her if she wanted to have sex with him and if she wanted him to wear a condom. She did not respond. He then tried to engage in penile vaginal penetration with her, but was unable to maintain his erection.
Not long after that, [the appellant] fell asleep. Ms M tried to move, and the [appellant] woke up. He told Ms M to suck his penis again and, eventually he ejaculated in her mouth. A short time later [the appellant] fell asleep again. Eventually, Ms M noticed the room getting lighter as it was almost daylight. She moved and he woke up. He took her to another room and made her lie down, smacking her buttocks.
He put his left hand over her mouth and digitally penetrated her anus. He told her that he was going to keep her and that she would be fine if she did what he said. [The appellant] then went out of the room and it sounded like he was in the kitchen. Ms M loosened the ropes on her wrists and her left hand came free. She grabbed the clothes she could and her wallet and ran out of the house.
He called out to her, but she kept running. She turned and saw him running behind her. He was naked and carrying a rope. She ran to the neighbour’s house and sought help from a couple who were sitting on their front patio. Police arrived shortly thereafter [761] – [776].
183 On 7 June 2017, following a pre-trial hearing pursuant to s 98 of the Criminal Procedure Act 2004 (WA), Pritchard J ruled that Ms M’s evidence was admissible at the appellant’s trial as propensity evidence pursuant to s 31A of the Evidence Act. See The State of Western Australia v Wark.
184 At the pre-trial hearing the State submitted that Ms M’s evidence demonstrated that the appellant had ‘a propensity to commit crimes of violence against a woman, in particular circumstances, namely where the woman has been hitchhiking along an isolated road, and to whom [the appellant] has given a lift’ [49]. Pritchard J said:
In my view, [Ms M’s] evidence is evidence of conduct which is so far outside the realms of ordinary human behaviour, and outside the bounds of behaviour which is within the law, that that evidence is capable of demonstrating an inclination on [the appellant’s] part to engage in violent crimes against women in those circumstances, and of demonstrating that [the appellant] is the sort of person likely to have committed an offence of that kind. In my view, [Ms M’s] evidence is either evidence of a tendency on [the appellant’s] part, or alternatively it is ‘other evidence of the conduct’ of [the appellant] which shows an inclination to behave in a particular way, but in either event, it is ‘propensity evidence’ within the scope of s 31A(1) [49].
185 At the pre-trial hearing the State also submitted that Ms M’s evidence that the appellant had asked for one of her earrings was evidence of a propensity to seek an earring as a trophy of his violent conduct against women [35]. Pritchard J said:
In my view, the evidence of [the appellant’s] conduct in this respect is so distinct and unusual that even that one instance of such conduct is capable of constituting evidence that [the appellant] has a tendency to keep a trophy of his violent, sexually motivated, conduct towards women. Alternatively, [Ms M’s] evidence is evidence of ‘other conduct’ on [the appellant’s] part which is capable of supporting the inference that [the appellant] would behave in a similar way in a similar situation. Accordingly, that part of [Ms M’s] evidence constitutes propensity evidence within s 31A(1) [50].
186 At the pre-trial hearing defence counsel argued that Ms M’s evidence did not have significant probative value in assessing whether the appellant murdered Ms Dodd because of the significant lapse of time between the alleged wilful murder of Ms Dodd on 29 July 1999 and the offences committed against Ms M in June 2007. Pritchard J rejected that argument. Her Honour reasoned:
While the lapse of time between the events the subject of proposed propensity evidence, and the alleged conduct the subject of a charge, will be relevant to assessing the probative value of that propensity evidence, it will not necessarily be determinative of that assessment, particularly as the significance of the proposed propensity evidence falls to be considered in the context of all of the circumstances of the case. If there are strikingly similar characteristics between the conduct the subject of the proposed propensity evidence and that of the alleged offence, the lapse of a significant period of time will be less significant, whereas if the connection between the conduct is more tenuous, a lapse of a significant period will attain a greater significance. In my view, there are strikingly similar characteristics between the conduct of [the appellant] which is disclosed by [Ms M’s] evidence, and the circumstances which, on the State’s case, surrounded [Ms Dodd’s] murder. Consequently, the lapse of time between Ms Dodd’s death and the conduct the subject of [Ms M’s] evidence does not diminish the probative value of [Ms M’s] evidence. That is all the more so given that the conduct the subject of [Ms M’s] evidence – serious violence and sexual assaults – is of a kind that could not be frequently engaged in by a person without the risk of apprehension by the authorities. In that context, a lengthy gap between the occurrence of the conduct the subject of propensity evidence, and an alleged offence, would hardly be surprising [59]. (footnote omitted)
187 At the pre-trial hearing defence counsel also argued that Ms M’s evidence was not probative because of deficiencies in the State’s evidence in relation to the earring found in Mr McConnell’s vehicle. Those deficiencies were apparently directed to whether the State would be permitted to adduce evidence that the earring was found in Mr McConnell’s vehicle and whether the State could establish that the earring found in his vehicle belonged to Ms Dodd. Pritchard J said that, in considering the State’s application to adduce the alleged propensity evidence pursuant to s 31A of the Evidence Act, it was necessary to consider the State’s case in its totality and to assume that the evidence of the earring in Mr McConnell’s vehicle would be admissible. Her Honour then said:
The weight to be attached to the evidence of the earring located in [Mr McConnell’s vehicle] will be a matter for the jury (or the trial judge). If that evidence is regarded by the jury (or the trial judge) as evidence which assists in establishing that Ms Dodd was in [Mr McConnell’s vehicle] at some stage, then the fact that [the appellant] has a propensity to keep an earring as a trophy of his violent conduct towards women will clearly be of importance in assessing the probability not only that it was [the appellant] who picked up Ms Dodd in [Mr McConnell’s vehicle], but also that he killed her [63].
188 At the pre-trial hearing defence counsel also argued that the fact that the earring was found in Mr McConnell’s vehicle was inconsistent with any propensity to take an earring as a trophy. Pritchard J also rejected that argument. Her Honour said:
Again, that is a matter for the jury (or trial judge) to assess in determining the weight to be given to [Ms M’s] evidence, but it does not mean that [Ms M’s] evidence concerning the earring would not be important or of consequence in assessing the probability that [the appellant] picked up Ms Dodd in [Mr McConnell’s vehicle] and subsequently killed her [64].
189 It is unnecessary to mention other issues that were dealt with by Pritchard J in relation to Ms M’s evidence. It is sufficient to note that her Honour concluded that Ms M’s evidence satisfied the requirements of s 31A(2)(a) of the Evidence Act; that is Ms M’s evidence was ‘propensity evidence’, as defined in s 31A(1), and her Honour considered that Ms M’s evidence would, having regard to other evidence to be adduced by the State at the appellant’s trial, have significant probative value [65]. Her Honour also found that the test in s 31A(2)(b) was satisfied [68].
190 At the trial, defence counsel submitted to Jenkins J that there were significant differences between the appellant’s attack on Ms M and the State’s allegations in the present case, and consequently the propensity evidence was not probative of the appellant’s guilt of an offence against Ms Dodd. The alleged significant differences included:
(a) Ms M was significantly older at the time of the offending against her than Ms Dodd was at the time she disappeared;
(b) the appellant had been drinking alcohol and smoking cannabis before he assaulted Ms M whereas there was no evidence of his having used alcohol or drugs on 29 July 1999;
(c) the appellant assaulted Ms M at night while Ms Dodd disappeared during the day;
(d) Ms M was a mature woman whereas Ms Dodd was childlike in her appearance; and
(e) the offences against Ms M occurred eight years after Ms Dodd disappeared.
Defence counsel argued that her Honour should conclude that Ms M was a ‘one-off victim’ [777].
191 Defence counsel also submitted to the trial judge that there was a difference between the appellant’s intention when he attacked Ms M and the State’s case that the appellant attacked Ms Dodd intending to kill her.
192 Her Honour said that, after taking into account all of the matters raised by defence counsel, the propensity evidence persuaded her that ‘in 1999, [the appellant] was the type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her’ [779]. Her Honour said that ‘[t]his would be for the purpose of subduing her or overpowering her so that she was incapable of resisting him and so that he could rape her’ [779].
193 The trial judge was of the opinion that although the offences against Ms M occurred eight years after Ms Dodd disappeared, ‘there [was] no evidence of any change to [the appellant’s] character or life which would justify me finding that he developed this propensity between 1999 and 2007’ [780].
194 Her Honour then said:
This means that it is more likely that [the appellant] unlawfully killed Ms Dodd in the course of a similar attack. However I agree with [the appellant’s] counsel that it is far less probative of an intention to kill Ms Dodd. I acknowledge that it is possible that a person could become so enraged during such an attack that they would form an intention to kill. However as the propensity evidence shows a propensity for physical violence in order to facilitate a sexual assault, I consider that it is much more likely that Ms Dodd died in the course of being attacked to facilitate her sexual assault, rather than as a result of an attack intended to kill her [781].
195 As I have mentioned, the trial judge also found that:
(a) the propensity evidence proved that the appellant was ‘a person who would be likely to take an earring as a trophy from his victim’;
(b) this would explain why an earring was removed from Ms Dodd’s ear, but not why it was left in Mr McConnell’s vehicle; and
(c) on the other hand, ‘the earring may well have come out of Ms Dodd’s ear during a struggle with [the appellant]’ [782].
Ground 4: the appellant’s submissions
196 Counsel for the appellant asserted that the evidence that on 1 June 2007 the appellant had detained, assaulted and sexually assaulted Ms M did not satisfy the requirements of s 31A of the Evidence Act and that, as a consequence, Pritchard J made a wrong decision on a question of law in ruling that the evidence was admissible. Alternatively, counsel asserted that the admission of the evidence occasioned a miscarriage of justice.
197 It was submitted that the impugned evidence did not have significant probative value and therefore should not have been admitted into evidence at the appellant’s trial.
198 The trial judge found, on the basis of the impugned evidence, that the appellant had a tendency to ‘pick up a lone female hitchhiker and violently and seriously assault her … for the purpose of subduing her or overpowering her so that she was incapable of resisting him and so that he could rape her’ [779].
199 Her Honour also found that the appellant ‘is a person who would be likely to take an earring as a trophy from his victim’ [782]. However, counsel noted that her Honour then said immediately that while this might explain why an earring was removed from Ms Dodd’s ear, it did not explain why an earring was left in Mr McConnell’s vehicle [782]. Counsel also noted that when her Honour set out her conclusions as to whether the appellant was responsible for Ms Dodd’s death, her Honour made no mention of a tendency to take an earring as a trophy. Her Honour did use her finding that the appellant had a propensity to ‘violently assault female hitchhikers’ and to ‘seek an earring from such victims’ in reaching a conclusion that the earring found on the car seat cover was Ms Dodd’s [787]. Counsel argued that this expression must be understood as referring to a propensity to take an earring as a trophy.
200 It was submitted that it was not open to the trial judge to find that the appellant had a propensity to take an earring ‘as a trophy’ from his victim because Ms M’s evidence was not capable of establishing that this was the appellant’s purpose when he demanded an earring from her.
201 Counsel argued that Ms M’s evidence was not capable of supporting, or at least was not capable of sufficiently supporting, a conclusion that the appellant had the relevant tendency, for the purposes of s 31A, when Ms Dodd disappeared, in that:
(a) The incident the subject of the impugned evidence was the only occasion on which the appellant had acted in this manner. At the time of his offending against Ms M the appellant was aged 51 years. There was no evidence that the appellant had engaged in any course of conduct from which it could be inferred that he had a behavioural tendency of the nature which her Honour found existed as at 29 July 1999.
(b) The incident the subject of the impugned evidence occurred about eight years after Ms Dodd disappeared. It was therefore not open to reason that having previously behaved in a certain manner, the previous incident was probative of a conclusion that the appellant had developed the relevant tendency by the time Ms Dodd disappeared. Instead, it was necessary to conclude that the impugned evidence (when considered with any other relevant evidence) was probative of a conclusion that the appellant had by 29 July 1999 a tendency of the kind found by her Honour, which tendency had endured until at least June 2007.
(c) Evidence of an isolated incident that occurred when the appellant was aged 51 years (about eight years after Ms Dodd disappeared) does not support, or does not support to a sufficient degree, the existence of the relevant tendency as at 29 July 1999.
(d) The absence of any evidence about the appellant’s life or character during the period from August 1999 to June 2007 is not capable of positively affecting the probative value of the impugned evidence for the purposes of s 31A. The absence of evidence during that period is only capable of adversely affecting the probative value of the impugned evidence.
202 It was submitted that, on the assumption that the impugned evidence is capable of establishing, at least to some degree, that the appellant had the relevant tendency as at 29 July 1999, the next issue for consideration is the extent to which that tendency makes more likely the facts that make up the charged offence. In the present case, where the issue was whether the appellant was the person who was responsible for Ms Dodd’s death, the probative value of the impugned evidence depends upon the existence of close similarity between the conduct evidencing the tendency, on the one hand, and the alleged offence, on the other.
203 It is not apparent that the trial judge used the impugned evidence in the course of finding that the appellant was the person who killed Ms Dodd by reference to the existence of any similarities between the conduct the subject of the impugned evidence, on the one hand, and the alleged offence, on the other.
204 By contrast, Pritchard J found that the lapse of time between August 1999 and June 2007 did not diminish the probative value of the impugned evidence because there were ‘strikingly similar characteristics between the conduct of [the appellant] which is disclosed by [Ms M’s] evidence, and the circumstances which, on the State’s case, surrounded [Ms Dodd’s] murder’ [59].
205 Counsel argued that there was very little evidence of the circumstances in which Ms Dodd disappeared on 29 July 1999. In particular, there was very little evidence as to the conduct of the person responsible for her death. On the basis of the trial judge’s findings, the most that could be concluded is that on the morning of 29 July 1999 Ms Dodd had hitchhiked to a point west of Badgingarra on North West Road. From that point, Ms Dodd had walked a short distance along North West Road in the direction of Moora. It is apparent from the evidence of Ms Johnson [142], Mark Weaver [145] and Eileen Purser [161] that at that stage Ms Dodd was not behaving in a manner that suggested she was still hitchhiking. Ms Dodd was last seen at about 11.40 am and (based on the evidence of some but not all witnesses) after about 12.10 pm she was not seen by witnesses who might have been expected to see her had she continued to walk along North West Road. Her Honour found that Ms Dodd died on 29 July 1999 [321].
206 It was submitted that, accordingly, it was difficult (if not impossible) to conclude that there was a close similarity between the conduct the subject of the impugned evidence, on the one hand, and the alleged offence, on the other.
207 Counsel argued that it followed that the impugned evidence was wrongly admitted. In particular, because of the limited capacity (if any) of the impugned evidence to establish that the appellant had the relevant tendency as at 29 July 1999, further or alternatively, because of the fact that it was not possible to conclude that there was a close similarity between the conduct the subject of the impugned evidence, on the one hand, and the alleged offence, on the other, the impugned evidence was not admissible pursuant to s 31A. The impugned evidence did not have significant probative value either by itself or having regard to other evidence that was adduced at the trial.
208 As I have mentioned, counsel argued that it was not open to her Honour to find that the appellant had a tendency to take an earring ‘as a trophy’. It was submitted that if this finding is disregarded and the relevant tendency is instead a tendency to pick up a lone female hitchhiker and assault her, the link between the alleged events in 1999 and the events in 2007, for the purpose of establishing the alleged significant probative value of the tendency evidence, is substantially weaker.
Ground 5: the trial judge having taken into account the absence of any ‘evidence of any change to [the appellant’s] character or life which would justify [her Honour] finding that he developed this propensity between 1999 and 2007’ in weighing the probative value of M’s evidence as to the appellant’s conduct on 1 June 2007 in Queensland
209 As I have mentioned, the trial judge was of the opinion that although the offences against Ms M occurred about eight years after Ms Dodd disappeared, ‘there [was] no evidence of any change to [the appellant’s] character or life which would justify me finding that he developed this propensity between 1999 and 2007’ [780]. After expressing that opinion, her Honour concluded, in effect, that Ms M’s evidence, combined with the absence of any evidence of any change to the appellant’s character or life between 1999 and 2007, made it ‘more likely that [the appellant] unlawfully killed Ms Dodd in the course of’ an attack similar to his attack on Ms M [781].
Ground 5: the appellant’s submissions
210 Counsel for the appellant noted that, at [780] of her reasons, the trial judge was not considering whether the impugned evidence was admissible but, rather, whether that evidence satisfied her Honour that the appellant had the relevant tendency as at 29 July 1999.
211 It was acknowledged that her Honour had expressly recognised that the appellant did not have any onus of proof. However, it was submitted that when considering whether the impugned evidence did in fact establish that the appellant had the relevant tendency as at 29 July 1999, her Honour either reversed the onus of proof or, further or alternatively, impermissibly used the absence of evidence during the period from August 1999 to June 2007 adversely to the appellant.
212 Counsel noted that there was no obligation on the appellant to adduce any evidence. In particular, the appellant was not obliged to adduce any evidence, for the purpose of establishing that there had been changes to his character or in his life since 29 July 1999 that culminated in his commission of the offences in June 2007, in an attempt to answer the impugned evidence.
213 It was submitted that the trial judge nevertheless concluded (adversely to the appellant) that ‘there is no evidence of any change to [the appellant’s] character or life which would justify me finding that he developed this propensity between 1999 and 2007’ [780]. It followed, so it was argued, that her Honour must have reached the conclusion that the appellant had the relevant tendency at least partly on the basis that evidence of the kind identified at [780] had not been adduced.
214 Counsel argued that, in any event, the fact that there was no relevant evidence about the appellant’s character or life during the period from August 1999 to June 2007 was a matter that properly could only have adversely affected her Honour’s ability to conclude that the appellant had the relevant tendency as at 29 July 1999. The absence of any such evidence should not have been used by her Honour, in effect, to confirm or bolster the conclusion that the appellant did have that tendency at that time. The absence of evidence did not prove anything about whether the appellant did, or did not, develop the relevant tendency after 29 July 1999. Indeed, it undermined the potential for a conclusion that the evidence was significantly probative.
215 Accordingly, it was submitted that ground 5 had been made out, a miscarriage of justice had occurred, the appeal should be allowed and the conviction for murder set aside.
Grounds 4 and 5: the State’s submissions
216 Counsel for the State’s submissions dealt with two issues raised by grounds 4 and 5. First, the admissibility of the propensity evidence. Secondly, the trial judge’s use of the propensity evidence.
217 Counsel argued that the appellant had contended, in effect, that the propensity evidence lacked significant probative value because of a combination of the following factors:
(a) the propensity incident is singular and hence isolated in nature;
(b) there was an interval of eight years between Ms Dodd’s murder and the propensity incident;
(c) the propensity incident occurred after Ms Dodd’s murder;
(d) the facts concerning the propensity incident were not sufficiently similar to the facts concerning Ms Dodd’s murder; and
(e) it was not open to the trial judge to conclude that the appellant had a propensity to take an earring as a trophy.
218 It was submitted on behalf of the State that Pritchard J was correct in concluding that:
(a) a single episode of conduct may establish a relevant propensity and that the propensity incident involving Ms M was capable, alone, of establishing the appellant’s alleged propensity [49]; and
(b) there were strikingly similar characteristics between the appellant’s conduct towards Ms M, as disclosed by her evidence, and the circumstances which, on the State’s case, surrounded Ms Dodd’s murder. Consequently, the lapse of time between Ms Dodd’s death and the appellant’s conduct towards Ms M did not diminish the probative value of Ms M’s evidence [59].
219 Counsel argued that evidence of events which have occurred after an alleged offence has been committed is capable of having significant probative value, depending upon the circumstances including the nature of the propensity evidence and the nature of the alleged offence.
220 Pritchard J concluded that the propensity incident involving Ms M was ‘so far outside the realms of ordinary human behaviour’ that the relevant tendency could be established by a single incident [49]. It was submitted that the relevant tendency could not have ‘developed overnight’. As Pritchard J observed, a person could not act regularly upon such a tendency without the risk of apprehension [59].
221 It was submitted that the trial judge’s conclusion that there was no evidence of any change to [the appellant’s] ‘character or life’ was nothing more than an observation as to the absence of evidence undermining an inference that was clearly open, namely that the appellant had the relevant tendency in 1999. The observation did not in any sense constitute a reversal of the onus of proof.
222 Counsel argued that in all the circumstances it was open to the trial judge to infer that the appellant had the relevant tendency in 1999.
223 Counsel submitted that the appellant’s contentions overstate, in the context of the present case, the degree of similarity which must be established for propensity evidence to have significant probative value. Although the propensity incident involving Ms M was relevant to proving that the appellant killed Ms Dodd, the identification of the appellant as the killer did not depend upon the admission of the propensity evidence. The appellant was in the place where Ms Dodd was taken from the road at about the time she was taken. Ms Dodd’s earring was found in Mr McConnell’s vehicle. The propensity evidence, combined with other circumstantial evidence, increased the probability that the appellant was the killer. The propensity evidence was also relevant to issues of motive and intention. Its admission was not dependent upon, and its use at trial was not limited to, the issue of the identity of the killer.
224 It was submitted that there was a compelling inference to be drawn from the propensity incident involving Ms M that the appellant’s demand for one of her earrings was for the purpose of keeping it as a trophy. Counsel argued that, in the context in which the demand was made (namely, committing various acts of sexual violence against Ms M over a number of hours), the inference was ‘inescapable’. Counsel also argued that the trial judge’s observation that the ‘trophy’ propensity may explain how an earring was removed from Ms Dodd’s ear, but not why it was found in Mr McConnell’s vehicle, was favourable to the appellant [782].
225 As to the issue of the identity of the killer, it was submitted that the only finding in the course of which the trial judge referred to the ‘trophy theory’ was her Honour’s conclusion to the effect that the earring was not deposited in the car seat cover at some other time or by some other person than Ms Dodd [787].
226 According to counsel for the State, the alleged errors asserted in grounds 4 and 5 have not been made out. The State relied upon the proviso in relation to grounds 4 and 5.
Ground 6: the trial judge’s ultimate finding of guilt: was the verdict of guilty, upon which the conviction for murder was based, unreasonable or unable to be supported having regard to the evidence?
227 The trial judge made the following findings:
(a) in 1999, the appellant had a propensity ‘to pick up a lone female hitchhiker and to violently and seriously assault her so that she could not resist his sexual assault’;
(b) the appellant was alone in Mr McConnell’s vehicle on North West Road ‘in the area of the location of the 961 marker and 2 km east of it at about midday on 29 July 1999’;
(c) on 29 July 1999, ‘Ms Dodd was picked up by a person in a vehicle from North West Road in the area of the 961 marker and 2 km east of it and killed by that person’;
(d) at the time she was picked up by her killer, Ms Dodd was wearing ankh silver earrings with a blue stone in the middle of the cross;
(e) on 5 August 1999, the police seized the car seat cover from Mr McConnell’s vehicle and an ankh earring was on the car seat cover;
(f) the ankh earring which was found on the car seat cover ‘was identical to one of the earrings worn by Ms Dodd on 29 July 1999’; and
(g) it was not a reasonable possibility that the ankh earring which was found on the car seat cover belonged to anyone other than Ms Dodd [793].
228 Her Honour said that, ‘[g]iven [those] findings’, she was satisfied beyond reasonable doubt that the appellant had ‘picked up Ms Dodd and killed her on 29 July 1999 by some unknown means’ [794].
229 The trial judge also said that, in concluding that she was satisfied beyond reasonable doubt that the appellant had ‘picked up Ms Dodd and killed her on 29 July 1999 by some unknown means’, she had taken into account ‘all the proven circumstances’, and not merely those I have set out at [227] above. Her Honour added that, in her view, some of the proven circumstances ‘favour[ed]’ the appellant. Her Honour noted, in particular, that she had taken into account the following factors, which were favourable to the appellant:
(a) there was ‘a narrow window of time for [the appellant] to encounter and pick up Ms Dodd’;
(b) there was ‘a limited period of time for [the appellant] to then dispose of her body’;
(c) people who spoke to the appellant ‘at the [Badgingarra] roadhouse shortly afterwards did not notice anything unusual in his demeanour’;
(d) despite extensive searches, nothing had been located to connect the appellant with Ms Dodd, apart from the earring;
(e) there were other suspects for the killing of Ms Dodd; and
(f) the appellant suffered from the disadvantage of defending the State’s allegations after a delay of 18 years [795].
230 Her Honour recorded that she had taken into account ‘that much of [the appellant’s] account to police of what he did on 29 July 1999 [as] is true or consistent with the facts I have found’ [796]. However, in her Honour’s view, ‘that is not of great weight because there is only approximately an hour and a half in which time the offence was committed and for which [the appellant] could not honestly tell the police what he did and when he did it’ [796]. Further, her Honour had found that ‘contrary to what [the appellant] told the police, he was not in Moora at about midday on 29 July 1999’ [796].
231 The trial judge stated that she was bound to ‘weigh all the circumstances’ and that, having done so, there was in her view ‘no reasonable inference that [she could] draw which [was] consistent with [the appellant’s] innocence’ [797]. Her Honour elaborated:
In particular, I do not consider it a reasonable inference to draw that [the appellant] could be innocent when the evidence proves the following matters. They are, that he was driving alone on the same stretch of isolated road that Ms Dodd was walking on when she disappeared, that he has a propensity to pick up female hitchhikers and seriously assault them and compelling evidence that Ms Dodd was in Mr McConnell’s [vehicle] in the form of the ankh earring which Ms Dodd was wearing the day she went missing being found in [Mr McConnell’s vehicle] [798].
Ground 6: the appellant’s submissions
232 Counsel for the appellant emphasised that there was no direct evidence as to the appellant’s involvement in Ms Dodd’s disappearance. The State’s case was circumstantial. Accordingly, it was not open to the trial judge to find the appellant guilty unless no explanation except guilt was reasonably compatible with the circumstances.
233 As I have outlined, the State’s case was that her Honour should be satisfied beyond reasonable doubt that the appellant was guilty of wilful murder from the following circumstances:
(a) When she disappeared Ms Dodd was wearing a pair of earrings, one of which was later found in Mr McConnell’s vehicle, being the vehicle that the appellant was driving on 29 July 1999.
(b) One of Ms Dodd’s hairs was later found in Mr McConnell’s vehicle.
(c) The appellant was alone in Mr McConnell’s vehicle when he had the opportunity to encounter Ms Dodd on North West Road.
(d) There have been no reliable sightings of Ms Dodd since the appellant had the opportunity to encounter her.
(e) The appellant had a propensity to pick up a lone female hitchhiker and rape her and, in doing so, to use extreme violence.
234 Counsel argued that, based on the trial judge’s reasoning at [610] – [760], there was no basis for concluding that one of Ms Dodd’s hairs was later found in Mr McConnell’s vehicle.
235 Counsel for the appellant addressed his submissions on ground 6 to the remaining circumstances that were relied upon by the State.
236 As to the earring found in Mr McConnell’s vehicle, it was submitted that:
(a) It was not open to her Honour to find that the earring found in Mr McConnell’s vehicle was Ms Dodd’s earring.
(b) As her Honour found, correctly, at [786] ‑ [787], there was a reasonable possibility that the earring had been left in the vehicle before or after 29 July 1999 by a person other than Ms Dodd, when the evidence as to the finding of the earring was considered in isolation from the other evidence referred to by her Honour at [787].
(c) The other ‘evidence’ referred to by her Honour at [787] included her Honour’s findings that the appellant had the opportunity to pick up Ms Dodd and that he had a propensity to seek an earring from a female hitchhiker whom he had violently assaulted. It follows that her Honour’s finding that the earring found in Mr McConnell’s vehicle was Ms Dodd’s earring relied upon a conclusion that the State had proved that the appellant had the requisite opportunity.
(d) Based on the submissions advanced by counsel at [237] ‑ [239] below, it was not open to her Honour to be satisfied that the appellant had the requisite opportunity and, accordingly, it was not open to her Honour to be satisfied that the earring was Ms Dodd’s.
(e) Further, based on the submissions advanced by counsel in relation to grounds 4 and 5, it was not open to her Honour to conclude that the appellant had a propensity to seek an earring from a female hitchhiker. In any event, there was no evidence that the earring found in Mr McConnell’s vehicle had been ‘sought’ and ‘obtained’ by the appellant. The earring was not found in the appellant’s possession and it was open, in the circumstances, to conclude that the earring had merely fallen out of the ear of whoever had been wearing it at the relevant time.
237 As to the appellant’s opportunity to encounter Ms Dodd on North West Road, it was submitted that:
(a) It was for the State to prove that the appellant had the requisite opportunity. The appellant was not required to prove anything. Accordingly, to the extent that there may have been gaps in the evidence due to (for example) incomplete or inadequate records or because of the frailties of human memory, those were matters that adversely affected the State’s case.
(b) It was not open to her Honour to find that the appellant had the requisite opportunity to encounter Ms Dodd on North West Road because a finding of opportunity, in the circumstances, relied critically on estimates by witnesses of times and speeds that were made, in many cases, almost 20 years after the events in question. Her Honour made calculations based on those estimates.
(c) Against that background, and on the approach taken by the State at the trial, whether the appellant had the requisite opportunity turned, ultimately, on whether there was ‘a window of opportunity of only a few minutes’. As the prosecutor submitted in her closing address, it was a ‘tight timeframe’ (ts 2717).
(d) Those factors alone should give rise to a conclusion that the verdict of guilty was unreasonable or cannot be supported and that her Honour must have had a reasonable doubt about the issue of opportunity.
238 In addition, on the question of whether the appellant had the opportunity to encounter Ms Dodd on North West Road, counsel for the appellant reiterated his submissions on grounds 1 and 2. According to counsel, those submissions establish that, even if it was open to her Honour to find that Ms Dodd was last seen alive at 11.40 am, it does not follow that it was open to her Honour to conclude beyond reasonable doubt that the appellant had the requisite opportunity after that time. That is because it is not, at least, possible to find:
(a) when Ms Dodd went missing after 11.40 am;
(b) that the outer limit as to when Ms Dodd left North West Road was about 12.10 pm;
(c) that Ms Dodd walked towards Moora after she was seen at 11.40 am or that she walked at a certain average speed; or
(d) that the appellant left Moora at a time, and then drove at a speed, that would have been necessary for him to arrive at or about a point just east of the last place that Ms Dodd was seen alive, before 12.10 pm.
239 Also, counsel submitted, in relation to whether the appellant had the requisite opportunity, that it was necessary for the State to prove that the appellant’s statement to the police that he was ‘pretty sure’ he left Moora after 12.00 noon was false, and that he had in fact left Moora a significant time before 12.00 noon. However, according to counsel, it was not open to her Honour to find beyond reasonable doubt that the appellant’s alibi was false. In particular, there was nothing in the evidence of the various witnesses who saw the appellant in Moora on 29 July 1999 that could properly have supported a finding beyond reasonable doubt that his statement as to the time he left Moora was false. In addition, apart from the receipt for the money order which demonstrated that the appellant was in Moora at 10.35 am, the various business records from Supa Valu, DJs Butcher and the Pioneer Bakery were not capable of establishing (either alone or in combination with any other evidence) that the alibi was false.
240 As to there having been no reliable sightings of Ms Dodd since the appellant had the opportunity to encounter her, it was submitted that:
(a) It was not open to her Honour to find that there were no reliable sightings of Ms Dodd after Mr Stribley said he saw her at 11.40 am. That is because of Bruce Smith’s evidence, especially when his evidence is considered in the context of the fact that it was unusual to see people walking along North West Road (ts 345, 354, 383, 417, 440).
(b) Given that Mr Smith’s evidence was inconsistent with a conclusion that the appellant had the requisite opportunity, it was necessary for his evidence to be excluded as not being reasonably possible. Although Mr Smith had some initial difficulties in recalling his movements on 29 July 1999, he was adamant that he did see the girl (ts 804). In particular, it was not open to her Honour to disregard Mr Smith’s evidence, given his apparent honesty, on the basis that there was no ‘support’ for it [213]. Also, it was not open to her Honour to find that Mr Smith did not see Ms Dodd at a time that would have made it impossible for the appellant to have encountered her on North West Road on the basis that it made ‘little sense’ for Ms Dodd to have been in the area in which Mr Smith said he saw her [213]. It was reasonably possible that Ms Dodd received a lift from a farmer and alighted from the famer’s vehicle at a point past Seldom Seen farm, having regard to the evidence of Ms Johnson (ts 476 ‑ 479).
241 As to the appellant having a propensity to pick up a lone female hitchhiker and rape her and, in doing so, to use extreme violence, counsel for the appellant reiterated his submissions on grounds 4 and 5. It was argued that those submissions established that it was not open to her Honour to conclude that the appellant had the relevant propensity.
242 In addition to the other matters raised by counsel for the appellant in support of ground 6, counsel asserted that, on the State’s case, there was an unrealistically short timeframe within which the appellant was alleged to have:
(a) seen Ms Dodd on the (opposite) side of North West Road, stopped and encouraged her to get into Mr McConnell’s vehicle, which had been travelling away from Moora;
(b) killed her and disposed of her body (which has never been found, despite extensive searches);
(c) dealt with the shopping that he had purchased in Moora earlier that day;
(d) packed and left his home to travel to Perth; and
(e) arrived on his motorcycle at the Badgingarra roadhouse at 1.36 pm, and appeared completely normal.
243 It was submitted that the unrealistically short timeframe added support to the contention that the verdict of guilty was unreasonable or cannot be supported.
Ground 6: the State’s submissions
244 Counsel for the State asserted that the appellant’s contentions approach the circumstantial case against him in a piecemeal fashion.
245 It was submitted that the trial judge was, in effect, satisfied beyond reasonable doubt that the earring in Mr McConnell’s vehicle belonged to Ms Dodd. It was also submitted that there is no rational hypothesis, consistent with innocence, which may be reconciled with that finding. According to counsel, that finding, of itself, can resolve ‘any gaps’ in the evidence concerning the appellant’s opportunity to encounter Ms Dodd.
246 Counsel argued that her Honour’s reasons address in detail the defence case theory at trial to the effect that a police officer ‘planted’ the earring in order to falsely implicate the appellant in Ms Dodd’s murder [450] – [578]. Her Honour was satisfied that the earring was not ‘planted’ [578].
247 Counsel reiterated the submissions advanced on behalf of the State in response to grounds 1, 2, 4 and 5.
248 As to the DNA evidence concerning the hair (hair 13) found in Mr McConnell’s vehicle which the State alleged belonged to Ms Dodd, the trial judge concluded that ‘it is possible that it is Ms Dodd’s hair but I am not persuaded that it is her hair’ [757]. According to counsel, it is open to this court to conduct its own review of the evidence and to find that hair 13 belonged to Ms Dodd. Counsel argued:
(a) On the issue concerning the nuclear DNA from hair 13, her Honour stated that she preferred the opinion of the State’s expert, Mr Andrew McDonald, to the appellant’s expert, Professor Allan Jamieson [757]. Nevertheless, her Honour said that both witnesses were experienced and qualified to give evidence in this area and their opinions needed to be ‘given weight’ [757]. In the circumstances, it would be open to this court to accept Mr McDonald’s evidence in preference to Professor Jamieson’s.
(b) Mr McDonald was of the view that Ms Dodd could be a contributor to the trace level amount of DNA detected in the extract from hair 13. Mr McDonald gave evidence that all 17 components found in the DNA extract from hair 13 matched components found in the DNA extract from components in Ms Dodd’s reference profile. Mr McDonald ‘would not expect to see that degree of representation just by chance’ [706], (ts 2057). The most conservative likelihood ratio generated was 7.2 million times in favour of the State’s hypothesis (ts 2073), a ratio which provides ‘extremely strong support’ for the proposition that Ms Dodd contributed to the DNA extract from hair 13 (ts 2075).
(c) Accordingly, on Mr McDonald’s view, it was open to conclude that hair 13 belonged to Ms Dodd.
(d) On the issue concerning the mitochondrial DNA from hair 13, the relevant probabilities in isolation could not establish that hair 13 belonged to Ms Dodd [653] – [656], [668] – [671]. Dr Michael Wallbank gave evidence that the results of the mitochondrial DNA only established ‘moderate support’ for the proposition that the mitochondrial DNA originated from Ms Dodd or a close maternal line relative [671].
(e) However, according to counsel, and contrary to her Honour’s ultimate finding, it is open to this court to conclude from the nuclear DNA and mitochondrial DNA results, in combination, and from all of the other circumstances concerning the recovery of hair 13, that hair 13 belonged to Ms Dodd.
The organisation of the balance of these reasons
249 I will consider, first, the legal principles applicable to a trial before a judge alone, then the legal principles applicable to a State case based on circumstantial evidence, then the legal principles applicable in an appeal to this court from a judgment of conviction entered after a trial before a judge alone, then the merits of grounds 4 and 5, then the merits of grounds 1, 2, 2A and 3 and, finally, the merits of ground 6.
The grounds of appeal: some legal principles applicable to a trial before a judge alone
250 Section 119 and s 120 of the Criminal Procedure Act applied to the appellant’s trial.
251 Section 119 provides, relevantly:
(1) In a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
(2) …
(3) If any written or other law –
(a) requires information or a warning or instruction to be given to the jury in certain circumstances; or
(b) prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by a judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.
252 By s 120, relevantly:
(1) In a trial by a judge alone –
(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2) The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
253 In Fleming v The Queen, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ construed provisions of the Criminal Procedure Act 1986 (NSW). At the material time, the relevant provisions of that Act were these:
(a) Section 33(1) provided:
A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(b) Section 33(2) provided:
A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(c) Section 33(3) provided:
If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
254 For the purposes of this appeal, at least, there is no material difference in effect between s 33(1) of the New South Wales Act and s 120(1) of the Western Australian Act, s 33(2) of the New South Wales Act and s 120(2) of the Western Australian Act, or s 33(3) of the New South Wales Act and s 119(3)(a) of the Western Australian Act.
255 Section 119(3)(a) of the Western Australian Act provides, relevantly, that if any written or other law ‘requires … a warning … to be given to the jury in certain circumstances’, the judge in a trial by a judge alone ‘must take the requirement … into account if those circumstances arise in the course of the trial’. In my opinion, if any law requires a warning to be given to the jury in certain circumstances, the judge in a trial by a judge alone takes the requirement into account, if those circumstances arise in the course of the trial, by including the particular requirement in his or her reasons for judgment and, in the reasoning process revealed by those reasons, heeding the warning.
256 In Fleming, their Honours said, in relation to s 33(2) and s 33(3) of the New South Wales Act:
[27] … whilst they are differently framed, the requirements of s 33(2) and (3) are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33.
[28] … whilst s 33(2), when specifying that which a ‘judgment’ must include, does not use the expression ‘reasons for judgment’, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.
[29] … the judgment may record what the judge regarded as a principle of law which then was applied, but the principle may have been erroneously formulated. There may have been a literal compliance with s 33(2), but by this means there is disclosed an error of law which, without there being a breach of s 33(2), attracts at least the second limb of s 6(1) of the Criminal Appeal Act.
[30] … if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.
[31] … there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account.
[32] The obligation imposed by s 33(3) ‘to take the warning into account’ is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law.
[33] The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account. (citations omitted)
257 In my opinion, the obligations imposed by s 119(3)(a), s 120(1) and s 120(2) of the Western Australian Act are, in substance, those which were identified and explained in Fleming in the context of the then applicable and comparable New South Wales legislation. The obligations are not limited to responding to and addressing the submissions of the parties as to the applicable legal principles, warnings and directions, but extend to identifying and applying any other legal principles, warnings and directions which are relevant. The judge must provide a reasoned decision that meets the criteria of s 120(2). See AK v The State of Western Australia.
258 In the passage which I have cited from Fleming, reference is made to s 6(1) of the Criminal Appeal Act 1912 (NSW). For the purposes of this appeal, at least, there is no material difference in effect between the first limb of s 6(1) of the New South Wales Act and s 30(3)(a) of the Western Australian Criminal Appeals Act, the second limb of s 6(1) of the New South Wales Act and s 30(3)(b) of the Western Australian Act, the third limb of s 6(1) of the New South Wales Act and s 30(3)(c) of the Western Australian Act or the proviso to s 6(1) of the New South Wales Act and s 30(4) of the Western Australian Act.
259 Section 30(1) of the Western Australian Criminal Appeals Act provides that s 30 applies in the case of an appeal against a conviction by an offender.
260 By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.
261 Section 30(3) provides:
The Court of Appeal must allow the appeal if in its opinion –
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
262 By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
263 The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).
264 I will discuss the general legal principles applicable to s 30(3)(a) in the course of dealing with ground 6 of the appeal.
265 A ‘wrong decision on a question of law’ within s 30(3)(b) includes misdirections on matters of substantive law and, also, misdirections on matters of adjectival law. The question under s 30(3)(b) is whether the trial judge’s error constituted a miscarriage of justice in the sense of a departure from trial according to law. See Weiss v The Queen; Filippou v The Queen. In Simic v The Queen, Gibbs, Stephen, Mason, Murphy and Wilson JJ said, in effect, that the phrase a ‘wrong decision on a question of law’ by the judge refers to a wrong decision on a material point of law. If a trial judge fails to give a direction that is required by law and the failure may have resulted in the conviction of the accused, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. See KBT v The Queen.
266 The expression ‘miscarriage of justice’ within s 30(3)(c), having regard to its historical context, refers to ‘any departure from trial according to law, regardless of the nature or importance of that departure’: Weiss [18] (original emphasis). See also King v The Queen. Section 30(3)(c) covers cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippou [14]. In M v The Queen, McHugh J said that a ‘miscarriage of justice’ arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones v The Queen, Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a ‘miscarriage of justice’ also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. An error of fact, which is disclosed by the reasons for judgment in a trial by judge alone, may, in some circumstances, be productive of a ‘miscarriage of justice’. See Filippou [4], [14], [48], [54]. When the expression ‘miscarriage of justice’ in s 30(3)(c) is understood in the manner explained in Weiss, King and Filippou, the word ‘substantial’, in the context of the expression ‘substantial miscarriage of justice’ in the proviso in s 30(4), has work to do. See Weiss [18]; King [53]; Filippou [15].
267 Section 30(3)(b) may overlap in some circumstances with s 30(3)(c). See AK [47], [86]; Gassy v The Queen.
268 The proviso in s 30(4) applies to par (a), par (b) and par (c) of s 30(3). See Filippou [15].
269 By s 30(3) read with s 30(4), two questions arise for determination. First, whether the appellate court ‘[is of the] opinion’ specified in par (a), par (b) or par (c) of s 30(3) and, secondly, whether the court ‘considers that no substantial miscarriage of justice has occurred’ within s 30(4). See Perara-Cathcart v The Queen.
The grounds of appeal: some legal principles applicable to a State case based on circumstantial evidence
270 In the present case, the State’s case was circumstantial. Circumstantial evidence, as distinct from direct evidence, is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. See Festa v The Queen.
271 In Barca v The Queen, Gibbs, Stephen and Mason JJ explained the principles governing criminal cases that turn upon circumstantial evidence, as follows:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King (1911) 13 CLR 619, at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963) 110 CLR 234, at p 252; see also Thomas v. The Queen (1960) 102 CLR 584, at pp 605‑606.
272 Direct evidence is not necessarily more reliable than circumstantial evidence. Indeed, in some cases, circumstantial evidence can be more persuasive than direct evidence. As McHugh J noted in Shepherd v The Queen, there will often be cases ‘where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances’. His Honour cited the observation of Lord Simon of Glaisdale in R v Kilbourne, that circumstantial evidence ‘works by cumulatively, in geometrical progression, eliminating other possibilities’.
273 In the present case, the State sought to prove, upon the basis of the facts and circumstances established by the evidence, that the only reasonable inference was that the appellant was guilty of wilful murder or the alternative offence of murder.
274 It was necessary for the trial judge to evaluate and weigh all of the facts and circumstances established by the evidence in deciding whether there was an inference consistent with innocence reasonably open on the evidence. The circumstantial case relied upon by the State was not to be considered by examining each piece of evidence or each fact or circumstance established by the evidence in isolation or on a piecemeal basis. The facts and circumstances established by the evidence in a circumstantial case must be evaluated and weighed in their entirety, both at trial and on appeal. See R v Hillier; R v Baden‑Clay; Fennell v The Queen.
275 In Baden-Clay [47], French CJ, Kiefel, Bell, Keane and Gordon JJ approved the statement in Peacock v The King that, 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’ (emphasis added).
276 The role of intermediate factual conclusions, in the context of a prosecution case based upon circumstantial evidence, was considered by Dawson J in Shepherd. His Honour said:
The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence (579).
The grounds of appeal: some legal principles applicable in an appeal to this court from a judgment of conviction entered after a trial before a judge alone
277 Section 23(1)(a) of the Criminal Appeals Act provides that an offender convicted of an offence on indictment may appeal to this court against the conviction.
278 By s 28(1) of the Criminal Appeals Act, an appeal under pt 3 of the Act (which comprises s 22 – s 35A) must be commenced and conducted in accordance with pt 3 and the rules of court.
279 Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) provides that an appeal to this court will be ‘by way of a rehearing’ unless another written law provides otherwise. No other written law ‘provides otherwise’, within r 25, in relation to an appeal to this court under s 23 of the Criminal Appeals Act.
280 The meaning to be ascribed to the term ‘by way of rehearing’ in r 25 depends upon the statutory context, including the provisions of the Criminal Appeals Act, the Court of Appeal Rules and the scheme which is discernible from those provisions. See CDJ v VAJ; Elliott v The Queen; Dwyer v Calco Timbers Pty Ltd.
281 The nature of an appeal ‘by way of rehearing’ under s 23(1)(a) of the Criminal Appeals Act read with r 25 of the Court of Appeal Rules, and the role and function of this court in dealing with the appeal, informs whether the principles enunciated in Warren v Coombes apply in relation to inferences of fact drawn or not drawn by the tribunal of fact.
282 Warren v Coombes was a civil case in which the appellant brought an action to recover damages for personal injuries alleged to be due to the negligent driving by the first respondent of a motor vehicle owned by the second respondent. Gibbs ACJ, Jacobs and Murphy JJ made these observations about the function of an appellate court in a civil appeal in relation to inferences to be drawn from established facts:
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation (551).
Later, their Honours stated that ‘if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it’ (553).
283 In Evans v The State of Western Australia, the appellant was convicted of murder after a trial before a judge and jury. He appealed against his conviction. One of his grounds of appeal alleged that the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it was unreasonable or could not be supported. A majority of this court (McLure P and Mazza J; Pullin JA dissenting) allowed the appeal on a different ground, set aside the judgment of conviction and ordered a new trial. McLure P held that the principles enunciated in Warren v Coombes did not apply to this court’s task in considering for itself whether, having regard to the evidence, the verdict of guilty was unreasonable or could not be supported. Her Honour arrived at that conclusion, in essence, because a jury is not required or permitted to give reasons for its decision. The issue in Evans was whether, having regard to the whole of the relevant evidence, it was open to the jury as a matter of fact (not law) to fail to be satisfied, on the balance of probabilities, that the appellant’s mental impairment deprived him of the capacity to know that he ought not to do the act in question. McLure P said [114] ‑ [115]:
The question is how the approach in M v The Queen applies when the real issue is not whether the prosecution has discharged its burden of proving guilt beyond reasonable doubt but whether the accused has proved a defence on the balance of probabilities. If the test in M v The Queen is literally interpreted, the task of the court might be regarded as being to review all of the evidence, come to its own view on the defence and substitute its view for that of the jury unless the court is relevantly disadvantaged by not seeing or hearing the witnesses. That approach would be very close to the role of an appellate court in civil appeals. If the judges in a civil appeal consider that the trial judge was in no better position to decide a particular question of fact than they are, the appeal court must give effect to its own judgment: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
However, as clearly emerges from Warren v Coombes itself, that is not the case in an appeal against the verdict of a jury who, unlike a judge, are not required to give reasons for their decision: see also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J). It is necessary to be cognisant of the role of the jury as the constitutional tribunal for resolving disputed factual questions in criminal trials.
Neither Mazza J nor Pullin JA considered whether the Warren v Coombes principles applied.
284 In Morgan v The State of Western Australia, McLure P referred to her reasons in Evans and reaffirmed her opinion that the principles enunciated in Warren v Coombes have no application in the context of appeals against conviction after a trial before a judge and jury. Her Honour said [2] ‑ [3]:
The appellants contend that the guilty verdicts against them are, having regard to the whole of the evidence, unreasonable or cannot be supported. The principles relating to the proper construction and application of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) have been stated by the High Court: M v The Queen (1994) 181 CLR 487, 492 – 493. M v The Queen was explained by Hayne J in Libke v The Queen (2007) 230 CLR 559. After noting that the evidence adduced at the trial in that case did not all point to the appellant’s guilt, Hayne J continued:
But the question for an appellant court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (original emphasis)
It is clear from this explanation that the task of an appellate court under s 30(3)(a) is not to form, and act upon, its own assessment as to the verdict it would reach. That remains the position even if this court is in as good a position to weigh and assess the facts as the jury. Contrast that with this court’s role in a civil appeal: Warren v Coombes (1979) 142 CLR 531; Evans v The State of Western Australia [2011] WASCA 182.
285 However, in Morgan, Pullin JA (Hall J agreeing) expressed a different view. His Honour considered that the Warren v Coombes principles should be applied by this court in deciding for itself whether, having regard to the evidence, a conviction was unreasonable or could not be supported. Pullin JA said [96] – [97]:
In short, the approach of this court on a criminal appeal is similar to its approach in determining a civil appeal (subject only to the difference in approach required because of the difference in the burden of proof). In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369, Beaumont and Lee JJ explained that in relation to a civil appeal:
[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 ‑ 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)
See Warren v Coombes [1975] HCA 9; (1979) 142 CLR 531, particularly at 553.
286 In The State of Western Australia v Rayney, the State appealed from a verdict of acquittal after a trial before a judge alone. The State’s right of appeal was conferred by s 24(2)(e) of the Criminal Appeals Act. Section 33 of the Act applied. Section 30 (in particular, s 30(3)) did not apply. After referring to Evans and Morgan, Weinberg, Whealy and Buddin AJJA noted that there was ‘no authority whatever’ as to whether the principles enunciated in Warren v Coombes apply to an appeal from a verdict of acquittal following a trial before a judge alone, and ‘certainly none where the basis of the appeal involves an allegation of factual error’ [416]. Their Honours considered that it was unnecessary, for the purposes of determining the appeal before them, to resolve that issue. Their Honours said that any views they expressed on the subject should be considered as dicta [417]. Nevertheless, their Honours were content, for the purposes of determining the appeal before them, to proceed on the basis that the Warren v Coombes principles apply to a criminal appeal based upon alleged factual error in a judge alone trial. Their Honours added that, notwithstanding their acceptance, on the basis I have mentioned, of the application of the Warren v Coombes principles, the ‘advantages enjoyed by the judge’ who conducted the trial must be considered alongside the ‘natural limitations’ that attend the appellate process, and that the product of those ‘natural limitations’ will be a measure of appellate restraint [418].
287 The High Court has emphasised, on numerous occasions, the role of the jury as ‘the constitutional tribunal for deciding issues of fact’, in which the appeal court must have ‘particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’. A court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that, having regard to the evidence, the verdict of guilty is unreasonable or cannot be supported, a court of criminal appeal, in allowing the appeal on that ground, is not substituting trial by an appeal court for trial by jury, because the ultimate question must always be whether the court of criminal appeal thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. See M (494 ‑ 495); Hillier [20]; Baden‑Clay [66]; Lane v The Queen; OKS v The State of Western Australia. Similarly, although the proviso in s 30(4) of the Criminal Appeals Act is expressed in terms which permit this court to dismiss an appeal from a judgment which gives effect to a jury’s verdict of guilty, the proviso does not permit this court to exercise the jury’s function. See Lane [48], [54].
288 In Filippou, the appellant was charged with the murder of two brothers. He pleaded not guilty to their murder by reason of provocation. The appellant was tried in the Supreme Court of New South Wales before a judge alone. He was convicted of both murders. The appellant’s appeal to the Court of Criminal Appeal was dismissed. On appeal to the High Court, French CJ, Bell, Keane and Nettle JJ noted:
(a) It is clear from the New South Wales equivalent of s 120(1) of the Western Australian Criminal Procedure Act that the effect of the New South Wales equivalent of s 120(1) is to equate a judge’s finding of guilt to a jury’s finding of guilt ‘for all purposes’ [11]. Their Honours said that it followed from the natural and ordinary meaning of the text of the New South Wales equivalent of s 120(1) that, for the purposes of an appeal against conviction, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt [11].
(b) A jury’s finding of guilt is not to be disturbed unless ‘it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice’ [12]. It follows, by virtue of the New South Wales equivalent of s 120(1) of the Western Australian Criminal Procedure Act, that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the New South Wales equivalent of s 30(3)(a) of the Western Australian Criminal Appeals Act unless ‘there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice’ [12]. Their Honours added that it is, however, ‘to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced’ [12].
289 In Filippou, the right of appeal was conferred on the appellant by s 5 of the Criminal Appeal Act 1912 (NSW). By s 5, a person convicted on indictment may appeal to the Court of Criminal Appeal against conviction on any ground which involves a question of law alone and, with the leave of the court or on the certificate of the judge, on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal. French CJ, Bell, Keane and Nettle JJ held that the right of appeal conferred by s 5 was not an appeal by way of rehearing [48].
290 French CJ, Bell, Keane and Nettle JJ concluded in Filippou that the Court of Criminal Appeal is required to deal with an appeal against conviction by an offender, who has been convicted after a trial before a judge alone, in three stages. The first is to determine whether the trial judge has erred in fact or law [4]. If there is such an error, the second stage is to decide whether the error, either alone or in combination with any other error or circumstances, produced a miscarriage of justice [4]. If so, the third stage is to ascertain whether, notwithstanding that the error produced a miscarriage of justice, the Crown has established that the error did not occasion a substantial miscarriage of justice [4].
291 French CJ, Bell, Keane and Nettle JJ held that the Court of Criminal Appeal (McClellan CJ at CL; Fullerton and S G Campbell JJ agreeing) in Filippou had not engaged with the requirements of the statutory task under s 6(1) of the Criminal Appeal Act 1912 (NSW) (being the New South Wales equivalent of s 30(3) of the Western Australian Criminal Appeals Act). Their Honours explained:
McClellan CJ at CL did not consider that the errors he identified in the judge’s reasoning process were productive of an error in her Honour’s conclusion because he was satisfied beyond reasonable doubt that the appellant was guilty. It is as if his Honour conceived himself to be deciding a civil appeal by way of rehearing under s 75A of the Supreme Court Act 1970 (NSW). But, if so, that was not a proper way of disposing of the appeal. As was earlier explained, an appeal from judge alone under s 5 of the Criminal Appeal Act is not an appeal by way of rehearing. Having identified error, the task for the Court of Criminal Appeal is to determine whether the error is productive of a miscarriage of justice. In this context that would have meant determining whether the judge had so erred in fact by preferring Allen’s version of events over Mrs Filippou’s recollections as to engage either the first or third limbs of s 6(1), or so erred in law by giving “determinative” weight to the appellant’s post-offence statements as to engage the second limb of s 6(1); and, if so, then assessing whether it was established that the error was not productive of a substantial miscarriage of justice in the sense of depriving the appellant of a chance of acquittal (or, in this case, a chance of a manslaughter verdict) fairly open to him. To dispose of the matter on the basis simply that the Court of Criminal Appeal was not satisfied that the judge’s conclusion was erroneous because the Court of Criminal Appeal considered that the appellant had been proved guilty beyond reasonable doubt did not engage with the requirements of the statutory task [48].
292 In the event, French CJ, Bell, Keane and Nettle JJ decided that the trial judge had not committed either of the errors identified by the Court of Criminal Appeal. The appeal to the Court of Criminal Appeal should have been dismissed for that reason [54], [60]. Any error which the trial judge may have made in essaying the test for provocation specified in s 23(2)(b) of the Crimes Act 1900 (NSW) was of no consequence [55], [59].
293 In Filippou, Gageler J observed in relation to the New South Wales equivalent of s 30(3)(a) of the Western Australian Criminal Appeals Act:
(a) whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the New South Wales equivalent of s 30(3)(a) is always ‘whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence’;
(b) in some cases following a trial by judge alone, it will be necessary for the appellate court ‘to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge’ given in compliance with the New South Wales equivalent of s 120(1) of the Western Australian Criminal Procedure Act;
(c) in a case where the contention in the appeal is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the appellate court to discharge its function ‘by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary [to deal with that contention] while adopting, without need for independent assessment, other intermediate findings of fact by the trial judge about which no complaint is made’;
(d) however, having adopted the intermediate findings of fact by the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent required to deal with the particular contention, ‘the question for [the appellate court] in such a case will remain whether or not [the appellate court] has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge’s advantage in seeing and hearing the evidence’ [83].
294 Also, Gageler J observed in relation to the New South Wales equivalent of s 30(3)(b) of the Western Australian Criminal Appeals Act that ‘the trial judge’s finding of guilt must be set aside (subject to the proviso) if (amongst other possibilities) the Court of Criminal Appeal concludes that the reasons for judgment of the trial judge disclose any error of law which was material to the way in which the trial judge arrived at the ultimate finding of guilt’ [84].
295 Further, Gageler J observed in relation to the New South Wales equivalent of s 30(3)(c) of the Western Australian Criminal Appeals Act that ‘the trial judge’s finding of guilt must be set aside (subject again to the proviso) if the Court of Criminal Appeal concludes, for some reason not already covered by [the New South Wales equivalent of s 30(3)(a) or s 30(3)(b)], that there was a miscarriage of justice’ [85]. His Honour added that there was ‘no reason in principle why an error of fact in arriving at an intermediate finding of fact, which is disclosed by the reasons for judgment of the trial judge, should not be characterised as a miscarriage of justice if that error might reasonably have affected the ultimate finding of guilt’ [85].
296 Gageler J then referred to Simic (326, 332) and noted that where a trial judge, in a trial by judge alone, misstates an important matter of fact then, unless the error of fact results in the accused losing a real opportunity of acquittal and consequently gives rise to a substantial miscarriage of justice, the New South Wales equivalent of s 30(3)(c) would not be engaged [86].
297 Next, Gageler J examined the manner in which the reasons for judgment of a trial judge in a trial by judge alone might be examined on appeal:
Where, in an appeal against conviction following a trial by judge alone, it is argued that the reasons for judgment of the trial judge disclose an error of fact in the way in which the trial judge reasoned from the evidence to make an intermediate finding of fact on which the trial judge relied in arriving at the ultimate finding of guilt, I cannot see how the appellant can discharge the onus of establishing a miscarriage of justice under [the New South Wales equivalent of s 30(3)(c)] unless the appellant can persuade the Court of Criminal Appeal of two things. The first is that the trial judge did make that error of fact in arriving at an intermediate finding of fact. The second is that, having regard to the gravity of the error of fact and the strength of the case against the appellant, it was reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error [87].
298 In Taylor v The Queen, Basten JA considered the scope of an appeal under s 5 of the New South Wales Criminal Appeal Act, having regard to the appeal not being by way of rehearing, in the context of an appeal against conviction after a trial before a judge alone. His Honour referred in detail to the reasons of French CJ, Bell, Keane and Nettle JJ in Filippou and then said [68] ‑ [69]:
So far as [the New South Wales equivalent of s 30(3)(a) of the Western Australian Criminal Appeals Act] is concerned, it would be open to an appellant to establish that an intermediate finding of fact which was essential to the chain of reasoning leading to the ultimate finding of guilt, could be reviewed on the basis that it was unreasonable and not supported by the evidence. Thus, although the focus remains squarely on the verdict, the fact that the process of reasoning is revealed will allow greater opportunities for appellate challenge.
A challenge to the process of reasoning may, in some cases, constitute a challenge to the adequacy of the reasons as found in the judgment, and thus a possible breach of [the New South Wales equivalent of s 120(2) of the Western Australian Criminal Procedure Act]. That in turn may be seen to invoke either [the New South Wales equivalent of s 30(3)(b) or s 30(3)(c) of the Western Australian Criminal Appeals Act].
299 As Weinberg, Whealy and Buddin AJJA observed in Rayney [398], it is a fundamental precept that the jurisdiction of this court, on appeal, is appellate and not original. This court’s role and function is to correct errors and miscarriages of justice. See Lacey v Attorney‑General (Qld).
300 Section 39(1) of the Western Australian Criminal Appeals Act provides, relevantly, that this court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s 39(1) does not affect the power of this court in s 40 to admit evidence. Section 40(1) provides, relevantly, that for the purposes of dealing with an appeal, this court may admit any other evidence (par (e)).
301 In my opinion, an appeal ‘by way of rehearing’ to this court, within r 25 of the Court of Appeal Rules, in the context of an appeal to this court under s 23(1)(a) of the Western Australian Criminal Appeals Act, is to be conducted by reference to the record of the proceedings in the trial court together with any other evidence which this court admits pursuant to s 40 of that Act. The powers of this court in relation to alleged legal or factual errors (including inferences of fact drawn or not drawn), in the context of an appeal under s 23(1)(a) after a trial before a judge alone, are to be determined having regard to the role and function of this court under s 30(3)(a), s 30(3)(b), s 30(3)(c) and s 30(4) of the Western Australian Criminal Appeals Act, properly construed.
302 In my opinion:
(a) The High Court’s statements that the role and function of an intermediate appellate court under statutory provisions equivalent to s 30(3) and s 30(4) of the Western Australian Criminal Appeals Act do not permit the intermediate appellate court to exercise the functions of the jury apply, by analogy, to the fact-finding functions of the judge in a trial by judge alone. I am of that opinion because s 30(3) and s 30(4) do not substitute trial by appellate court for trial by jury or trial by judge alone and because s 120(1) of the Western Australian Criminal Procedure Act requires that, in the context of an appeal against conviction, a judge’s finding of guilt is to be treated as if it had the same effect as a jury’s finding of guilt. The High Court’s statements apply, notwithstanding that the appeal to this court is expressed in r 25 of the Court of Appeal Rules to be ‘by way of rehearing’.
(b) As to s 30(3)(a) of the Criminal Appeals Act, the question for this court, in the present case, is whether the trial judge’s finding of guilt was open to her Honour on the whole of the evidence. This court must review for itself the trial record for the purpose of forming its own assessment of whether or not it was open to her Honour to be satisfied beyond reasonable doubt that the appellant was guilty. Her Honour’s finding of guilt is not to be disturbed unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or her Honour has so misdirected herself on a matter of law as to result in a miscarriage of justice. In Filippou, French CJ, Bell, Keane and Nettle JJ adopted and adapted the language of M (494), as follows:
It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [12].
(c) As to s 30(3)(b) of the Criminal Appeals Act, the trial judge’s finding of guilt, in the present case, must be set aside, subject to the proviso, if her Honour made a material error of law (for example, if her Honour misdirected herself on a matter of substantive law or a matter of adjectival law) and the material error constitutes a miscarriage of justice in the sense of a departure from trial according to law. See Filippou [13].
(d) As to s 30(3)(c) of the Criminal Appeals Act, this court must determine, in the present case, by reference to the grounds of appeal, whether the trial judge erred in fact or law. If her Honour made such an error, this court must decide whether the error, either alone or in combination with any other errors or circumstances, produced a miscarriage of justice. See Filippou [4], [14], [48], [54].
(e) Where an error of the kind identified in s 30(3)(a), s 30(3)(b) or s 30(3)(c) is established and amounts to a miscarriage of justice, this court may dismiss the appeal, pursuant to s 30(4), if it is satisfied that the error has not been productive of a substantial miscarriage of justice. There will be a substantial miscarriage of justice if the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or if there was some other departure from a trial according to law that warrants that description. See Filippou [15].
303 It is unnecessary, in the present case, to decide whether the approach of Pullin JA (Hall J agreeing) in Morgan to the application by this court of the Warren v Coombes principles is consistent with High Court authority.
Grounds 4 and 5: their merits
304 It is convenient to consider grounds 4 and 5 together.
305 Section 31A of the Evidence Act provides:
31A. Propensity and relationship evidence
(1) In this section –
propensity evidence means –
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is 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.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
306 The principles relevant to whether propensity evidence has significant probative value, within the meaning of s 31A of the Evidence Act, were summarised in RMD v The State of Western Australia as follows:
(1) In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3) Evidence has ‘probative value’ if the evidence could rationally affect, directly or indirectly, the assessment of [the] probability of the existence of a fact in issue.
(4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence ‘would’ (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5) The adjective ‘significant’ in the phrase ‘significant probative value’ in s 31A(2)(a) connotes important or of consequence.
(6) If propensity evidence has probative value, then whether the probative value is ‘significant’ will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7) The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
307 Recently, in The State of Western Australia v Jackson, the following points were made:
First, the term ‘propensity evidence’, as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, ‘evidence of the conduct of the accused person’ and ‘evidence … of a tendency that the accused person has or had’. The word ‘conduct’, in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words ‘a tendency’, in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a) the evidence is capable of proving the propensity; and
(b) proof of the propensity increases the likelihood of the commission of the offences (Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26], [34]; Flessas v The State of Western Australia [2018] WASCA 210 [46]; La Bianca [145]).
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the ‘work the propensity evidence is tendered to do’ (Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [23]). For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value (DKA v The State of Western Australia [2017] WASCA 44 [43]; La Bianca 26).
308 In McPhillamy v The Queen, the appellant was convicted after trial on six counts of sexual offences committed against an 11-year-old boy (A). At the time of the alleged offending the appellant was an acolyte at a cathedral and A was an altar boy who was under the appellant’s supervision. The alleged offending occurred in the public toilets of the cathedral. The offences were alleged to have occurred on two separate occasions between 1 November 1995 and 31 March 1996. At the trial two witnesses (B and C) called by the prosecution each gave evidence that in 1985, when each was aged 13, the appellant had committed sexual acts on them when they were boarders at a school and the appellant was an assistant housemaster at the school. B and C had gone to the appellant’s bedroom to be comforted when they were homesick. This evidence as to the alleged sexual acts in 1985 was admitted as tendency evidence pursuant to the Evidence Act 1995 (NSW). Section 97(1) of that Act conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court’s assessment that the evidence will, by itself or taken with evidence adduced by the party seeking to adduce it, have ‘significant probative value’. The High Court allowed the appellant’s appeal on the ground that proof of the 1985 offending was not capable of affecting, to a significant extent, the assessment of the likelihood that the appellant had committed the offences with which he was charged. The reasoning of Kiefel CJ, Bell, Keane and Nettle JJ was, relevantly, as follows:
Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to ‘B’s and ‘C’s evidence of events that occurred in 1985. … [T]here was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against ‘A’.
…
… [W]here, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together (Hughes v The Queen (2017) 92 ALJR 52 at [64] per Kiefel CJ, Bell, Keane and Edelman JJ; R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]). The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over ‘A’, an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that ‘A’ was vulnerable in the way that ‘B’ and ‘C’ were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with ‘A’s account that the appellant followed him into a public toilet and molested him.
‘B’s and ‘C’s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against ‘A’ to a significant extent (R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]). It rose no higher in effect than to insinuate that, because the appellant had sexually offended against ‘B’ and ‘C’ 10 years before, in different circumstances, and without any evidence other than ‘A’s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that ‘A’ alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act [27], [31], [32]. (original emphasis)
309 Propensity evidence is a kind of circumstantial evidence. Where, as in the present case, the State’s case is circumstantial, it will ordinarily be necessary for the court to evaluate and weigh the propensity evidence having regard to other evidence adduced or to be adduced (and not merely to evaluate and weigh the propensity evidence by itself), in determining whether the evidence has ‘significant probative value’, within s 31A(2)(a).
310 At common law and under s 31A and other statutory provisions analogous to s 31A, similar fact evidence and propensity evidence have been held to be admissible where the evidence relates to facts and circumstances that happened after the charged offence occurred. See Thompson v The Queen; Pfennig v The Queen; Di Lena v The State of Western Australia; RH v The Queen; R v PBB.
311 Evidence of an accused’s conduct after the commission of an alleged offence is capable, depending on the circumstances and the nature of the evidence, of being relevant and sufficiently probative to require its admission as propensity evidence. See Onekawa v The State of Western Australia.
312 If an appellant who has been convicted after trial appeals to this court against his or her conviction on the ground that evidence was wrongly admitted under s 31A or that the admission of the evidence occasioned a miscarriage of justice, the task of this court is to decide for itself:
(a) whether the evidence, either by itself or having regard to other evidence adduced at the trial, had ‘significant probative value’, within s 31A(2)(a); and
(b) whether the probative value of the 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, within s 31A(2)(b).
That was the approach taken by the High Court in Stubley v The State of Western Australia and IMM v The Queen.
313 In other words, on an appeal against conviction after trial, this court determines whether the evidence in question was admissible by reference to the principles enunciated in Warren v Coombes and not by reference to those enunciated in House v The King. See R v Bauer and DKA v The State of Western Australia. In the present case, whether the admission of Ms M’s evidence occasioned a miscarriage of justice is concerned with the use made of the evidence at trial.
314 Ground 4 of the appellant’s appeal asserts that the decision to admit the propensity evidence at the appellant’s trial constituted a wrong decision on a question of law or the admission of that evidence at the trial occasioned a miscarriage of justice. The first particular of ground 4 claims that the propensity evidence was not ‘significantly probative’ for the purposes of s 31A(2)(a). The second particular claims that the trial judge erred in using evidence that the appellant had forced Ms M to give him an earring as evidence that the appellant had a propensity to seek an earring from female hitchhikers whom he had violently assaulted.
315 The trial judge directed herself in relation to the propensity evidence as follows [54] – [55]:
The evidence of Ms M was admitted as propensity evidence. Propensity evidence is evidence which I may use to infer that [the appellant], who is a person who has been responsible for other criminal acts, is likely by reason of that fact to have committed the offence charged (Noto v The State of Western Australia [2006] WASCA 278 [22]). Another way of putting it is that ‘the evidence is tendered to prove that [the appellant] is the type of person who is likely to have committed the crime with which he … is charged’ (KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235). It may support an inference of guilt, in the sense that … it makes it objectively improbable ‘that a person other than [the appellant] committed the act in question, that the … act was unintended, or … occurred innocently or fortuitously’ (BRS v The Queen, 299).
As the evidence of Ms M was admitted as propensity evidence, I do not give myself a propensity warning about it. However it remains the case that I cannot reason that just because of the propensity evidence, [the appellant] is guilty of an offence open on the indictment. I cannot convict [the appellant] of an offence open on the indictment unless the State has satisfied me beyond reasonable doubt that he unlawfully killed Ms Dodd on the basis of all the evidence, including the propensity evidence.
316 The appellant’s grounds of appeal do not challenge the correctness of any of her Honour’s directions in relation to the propensity evidence.
317 The trial judge made unchallenged findings of fact in relation to Ms Dodd as follows:
(a) Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road between about 11.40 am and about 12.10 pm on 29 July 1999 [321];
(b) Ms Dodd is dead [321];
(c) a person must have ‘picked [Ms Dodd] up’ at the place where she disappeared [322];
(d) the person who ‘picked [Ms Dodd] up’ must have had a motor vehicle [322]; and
(e) the person who ‘picked [Ms Dodd] up’ had killed her [322], [793(3)].
318 The ultimate issue at the trial was whether the State had proved beyond reasonable doubt that it was the appellant who had ‘picked [Ms Dodd] up’ and killed her on 29 July 1999 [794].
319 I am satisfied (having regard to other evidence adduced by the State at the trial) that the evidence in relation to the appellant having detained, assaulted and sexually assaulted a female hitchhiker, Ms M, on 1 June 2007 in Queensland, and having demanded that Ms M remove and give him her earring, was ‘evidence of the conduct of’ the appellant (within par (a) of the definition of ‘propensity evidence’ in s 31A(1)) and evidence of an inclination or predisposition that the appellant had (that is, evidence of ‘a tendency’ that he had within par (b) of the definition of ‘propensity evidence’ in s 31A(1)).
320 The inclination or predisposition was that the appellant was the type of person who would be inclined or predisposed:
(a) to pick up a lone female hitchhiker in his motor vehicle in an isolated location and violently and seriously assault her for the purpose of overpowering her so that he could rape her; and
(b) to seek to obtain an earring from the hitchhiker.
321 In my opinion, the fact that the propensity evidence relied upon by the State comprised a single episode did not materially diminish the capacity of that evidence to be evidence of the appellant having the inclination or predisposition I have described at [320] above.
322 The appellant’s offending against Ms M occurred over a period of several hours and included violent and depraved conduct towards her. The appellant’s criminal behaviour was not confined to sexual assaults. He committed a number of discrete and deliberate acts of violence before he sexually assaulted her, including an assault with a large piece of wood. The appellant’s violence and depravity were the external manifestation of a perverted state of mind to engage in conduct of that kind against a lone female whom he had picked up in his vehicle in an isolated location. His demand that Ms M remove and give him the earring she was wearing occurred in the course of his violent and depraved conduct. Seeking to obtain an earring from Ms M in those circumstances was distinctive and unusual behaviour.
323 The appellant’s action in seeking to obtain an earring from Ms M, in the course of committing the offences against her, demonstrated of itself an inclination or predisposition which the appellant had, irrespective of his purpose in seeking to obtain the earring (in particular, irrespective of whether the appellant sought the earring as ‘a trophy’ in relation to his offending). The appellant’s relevant inclination or predisposition included seeking to obtain an earring from the hitchhiker. The trial judge’s characterisation of the appellant’s conduct as involving the taking of ‘a trophy’ was not a material error. That characterisation, either alone or in combination with any other errors or circumstances, did not produce a miscarriage of justice. There is no reasonable prospect that the characterisation of the appellant’s conduct as involving the taking of ‘a trophy’ might have affected her Honour’s ultimate finding of guilt.
324 Although the trial judge found at [782] that the propensity evidence proved that the appellant was a person who would be likely to take an earring as a trophy from his victim, what is important is the manner in which her Honour used the propensity evidence. As I have mentioned, whether the admission of Ms M’s evidence occasioned a miscarriage of justice is concerned with the use made of the evidence at the trial. Her Honour used the propensity evidence in excluding, as a reasonable possibility, that the earring belonged to someone other than Ms Dodd [787]. In that respect, her Honour had regard to the evidence that the appellant had a propensity to seek an earring from female hitchhikers whom he had violently assaulted. In other words, her Honour did not make use of her conclusion that the appellant was the type of person who took an earring as a trophy.
325 In my opinion, the fact that the propensity evidence relied upon by the State occurred in 2007 did not deprive that evidence of its character as evidence of an inclination or predisposition that the appellant had in 1999.
326 I accept that the length of an interval between the circumstances of propensity evidence and the circumstances of the charged offence is relevant and, in a particular case, may be decisive in determining whether the interval materially diminishes the capacity of the propensity evidence to be evidence of an inclination or predisposition at the time of the charged offence. However, the significance of the length of the interval must be evaluated in the context of all of the circumstances of the particular case. For example, if there are striking similarities between relevant circumstances of the propensity evidence and relevant circumstances of the charged offence, a long interval will generally be less significant than the long interval would have been if the connection between relevant circumstances of the propensity evidence and relevant circumstances of the charged offence lacked striking similarities. See Bennett v The State of Western Australia.
327 In the present case, there were striking similarities between relevant circumstances of the appellant’s conduct towards Ms M and relevant circumstances, on the State’s case, of the charged offence involving Ms Dodd. In particular:
(a) Ms M was a lone female who was walking in an isolated rural location and Ms Dodd was a lone female who was walking in an isolated rural location.
(b) The appellant picked up Ms M in his motor vehicle and, upon evidence adduced by the State, the trial judge found that the person who killed Ms Dodd must have picked her up in a motor vehicle.
(c) The appellant was alone in his vehicle when he picked up Ms M and, upon evidence adduced by the State, her Honour found that the appellant was alone in Mr McConnell’s vehicle on North West Road when he had the opportunity to encounter Ms Dodd and when she disappeared.
(d) The appellant sought and obtained an earring from Ms M and evidence adduced by the State was capable of supporting an inference that the earring on the seat cover seized by the police from Mr McConnell’s vehicle belonged to Ms Dodd.
(e) The appellant detained Ms M after he picked her up in his motor vehicle. Later, the appellant told Ms M, in the course of his violent and depraved assault, that he was ‘going to keep her’. The appellant did not release Ms M. She escaped from him. Upon evidence adduced by the State, her Honour found that the person who picked up Ms Dodd in a motor vehicle did not release her. The person killed Ms Dodd. She did not escape.
328 Further, the appellant was born on 21 February 1956. On 29 July 1999 he was aged 43 and on 1 June 2007 he was aged 51. Human experience teaches that a violent and depraved inclination or predisposition is highly unlikely to be formed suddenly in middle age. A man whose actions display a violent and depraved inclination or predisposition at the age of 51 is highly likely to have had that inclination or predisposition at the age of 43.
329 In my opinion, the evidence in relation to the appellant having detained, assaulted and sexually assaulted Ms M on 1 June 2007 and having demanded that Ms M remove and give him her earring (having regard to other evidence adduced by the State at the trial) could rationally affect, to a significant extent, the assessment of the probability that:
(a) on 29 July 1999, the appellant picked up Ms Dodd in Mr McConnell’s vehicle at the place where she disappeared on North West Road;
(b) after picking up Ms Dodd, the appellant detained and assaulted her; and
(c) the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose.
330 The other evidence adduced by the State at the trial, to which I have referred at [319] and [329] above, included the evidence that supported:
(a) her Honour’s unchallenged findings of fact in relation to Ms Dodd which I have mentioned at [317] above;
(b) her Honour’s finding that the appellant’s alibi was false;
(c) her Honour’s finding of fact that the appellant was alone in Mr McConnell’s vehicle on North West Road in the area of the location of the 961 marker and 2 km east of it at about 12.00 noon on 29 July 1999;
(d) her Honour’s finding of fact that the appellant had the opportunity to encounter Ms Dodd between about 11.40 am and about 12.10 pm on 29 July 1999;
(e) her Honour’s finding of fact that, when she was picked up by her killer, Ms Dodd was wearing the ankh earrings she had purchased from the Treefrog shop;
(f) her Honour’s findings of fact that on 6 August 1999 the police seized the seat cover from Mr McConnell’s vehicle and the cover had on it an ankh earring; the ankh earring found on the seat cover was identical to one of the earrings worn by Ms Dodd on 29 July 1999;
(g) an inference that the ankh earring found on the seat cover belonged to Ms Dodd;
(h) her Honour’s finding of fact that 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;
(i) her Honour’s finding that the appellant deliberately lied to the police when he told them that he had not picked up a hitchhiker on 29 July 1999 while he was driving Mr McConnell’s vehicle; and
(j) her Honour’s finding that 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.
331 If the State proved the facts, circumstances and matters referred to at [330] above then the evidence that the appellant was the type of person who would be inclined or predisposed:
(a) to pick up a lone female hitchhiker in his motor vehicle in an isolated location and violently and seriously assault her for the purpose of overpowering her so that he could rape her; and
(b) to seek to obtain an earring from the hitchhiker,
could rationally affect, to a significant extent, the assessment of the probability that on 29 July 1999 the appellant picked up Ms Dodd in Mr McConnell’s vehicle at the place where she disappeared on North West Road; after picking up Ms Dodd, the appellant detained and assaulted her; and the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose.
332 It is true that there were differences between the known circumstances of the appellant’s conduct towards Ms M and the known and unknown circumstances of Ms Dodd’s disappearance. Those differences included that the appellant’s conduct towards Ms M included sexually assaulting her whereas it was unknown whether Ms Dodd had been sexually assaulted; the appellant took Ms M to his home whereas there was no evidence that the appellant had taken Ms Dodd to his home; the appellant deprived Ms M of her liberty for an extended period whereas the appellant could not, on the State’s case, have deprived Ms Dodd of her liberty for a similar period or for any substantial period; at the material time, Ms M was aged 31 whereas Ms Dodd was aged only 17; the appellant’s offending against Ms M occurred in the middle of the night whereas Ms Dodd disappeared in the middle of the day; and the appellant had apparently been drinking alcohol and using cannabis before he committed the offences against Ms M whereas there was no evidence that the appellant had been drinking alcohol or using cannabis on 29 July 1999.
333 However, those differences between the known circumstances of the appellant’s conduct towards Ms M and the known and unknown circumstances of Ms Dodd’s disappearance do not deprive the evidence of the appellant’s inclination or predisposition referred to at [320] above of its capacity (having regard to the other evidence referred to at [330] above) to rationally affect, to a significant extent, the assessment of the probability that on 29 July 1999 the appellant picked up Ms Dodd in Mr McConnell’s vehicle at the place where she disappeared on North West Road; after picking up Ms Dodd, the appellant detained and assaulted her; and the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose.
334 The fact that the ankh earring was on the seat cover which the police seized from Mr McConnell’s vehicle on 6 August 1999, and not in the appellant’s actual physical possession, did not deprive the evidence of the appellant’s inclination or predisposition referred to at [320] above of its capacity (having regard to the other evidence referred to at [330] above) to rationally affect, to a significant extent, the assessment of the probability that on 29 July 1999 the appellant picked up Ms Dodd in Mr McConnell’s vehicle at the place where she disappeared on North West Road; after picking up Ms Dodd, the appellant detained and assaulted her; and the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose. The significance of the ankh earring having been on the seat cover and not having been in the appellant’s actual physical possession was a matter to be weighed by the trial judge having regard to the other evidence adduced by the State at trial, including the evidence referred to at [330] above and the evidence as to the appellant’s prior arrangement with Ms Edwards and Mr Springer to travel from Badgingarra to Perth on 29 July 1999 and the expectation that he would arrive at their Beaconsfield home by about 3.00 pm – 4.00 pm [345], [347].
335 Also, the fact that the circumstances in which the ankh earring found on the seat cover was removed from Ms Dodd’s ear were unknown did not deprive the evidence of the appellant’s inclination or predisposition referred to at [320] above of its capacity (having regard to the other evidence referred to at [330] above) to rationally affect, to a significant extent, the assessment of the probability that on 29 July 1999 the appellant picked up Ms Dodd in Mr McConnell’s vehicle at the place where she disappeared on North West Road; after picking up Ms Dodd, the appellant detained and assaulted her; and the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose. The appellant’s relevant inclination or predisposition included seeking to obtain an earring from the hitchhiker and did not extend to the manner in which the earring was removed from the hitchhiker’s ear. The circumstances in which the earring was removed from Ms Dodd’s ear were unknown. Her Honour’s comment that ‘the earring may well have come out of Ms Dodd’s ear during a struggle with [the appellant]’ [782] was not, and did not reveal, a material error. Her Honour’s comment did not, either alone or in combination with any other error or circumstances, produce a miscarriage of justice. There is no reasonable prospect that her Honour’s comment might have affected her Honour’s ultimate finding of guilt.
336 The striking similarities between relevant circumstances of the appellant’s conduct towards Ms M and relevant circumstances of the charged offence involving Ms Dodd, which I have set out at [327] above, constitute a strong and distinctive connection which linked the appellant’s offending against Ms M to his alleged offending against Ms Dodd.
337 In the present case, the propensity evidence was of practical relevance and importance to the facts in issue; in particular, it was influential in the context of fact-finding. The probative value of the propensity evidence, having regard to the matters I have mentioned, was substantial.
338 I am 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, within s 31A(2)(b). The directions which the trial judge gave herself were adequate to overcome any irrelevant or impermissible prejudice arising from the propensity evidence. As I have mentioned, the appellant’s grounds of appeal do not challenge the correctness of any of her Honour’s directions. Her Honour did not misuse the propensity evidence or overestimate its probative force. The admission of the propensity evidence did not occasion an unfair trial. The propensity evidence was highly relevant to and probative of the State’s case. If the propensity evidence had not been admitted, her Honour would have considered the balance of the State’s case without an important contextual matter, and the trial would have been unfair from the State’s perspective.
339 I am satisfied that the decision to admit the propensity evidence at the trial did not constitute a wrong decision on a question of law. I am also satisfied that the admission of the propensity evidence at the trial did not occasion a miscarriage of justice. The propensity evidence was ‘significantly probative’ for the purposes of s 31A(2)(a). The trial judge did not misuse that part of the propensity evidence which involved the appellant’s demand that Ms M give him her earring.
340 Ground 4 has not been made out.
341 Ground 5 of the appellant’s appeal asserts that the trial judge 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 me finding that he 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.
342 The trial judge’s findings in relation to the propensity evidence were, relevantly, as follows:
… I find that the propensity evidence persuades me that in 1999, [the appellant] was the type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her. This would be for the purpose of subduing her or overpowering her so that she was incapable of resisting him and so that he could rape her.
Although the incident with Ms M occurred eight years after Ms Dodd disappeared, there is no evidence of any change to [the appellant’s] character or life which would justify me finding that he developed this propensity between 1999 and 2007 [779] ‑ [780].
343 In my opinion, her Honour’s reference to the absence of any ‘evidence of any change to [the appellant’s] character or life which would justify [her] finding that he developed this propensity between 1999 and 2007’ does not indicate that her Honour either reversed the onus of proof, further or alternatively, impermissibly used the absence of evidence during that period adversely to the appellant.
344 The trial judge’s reference to the absence of evidence of that kind, in the context of her reasons as a whole, was merely a remark to the effect that she drew the inference that was plainly open to her Honour, namely that evidence of the inclination or predisposition which the appellant manifested in relation to his offending against Ms M in 2007, was also evidence of an inclination or predisposition that the appellant had in 1999. On the whole of the relevant evidence, her Honour was entitled to conclude that the State had proved that the appellant had the relevant inclination or predisposition in 1999. I refer to what I have written at [325] ‑ [328] above. Her Honour did not arrive at that conclusion because she considered that the appellant had an onus which he had failed to discharge.
345 In any event, even if (contrary to my opinion) her Honour made the errors alleged in ground 5, I am satisfied that:
(a) the propensity evidence was admissible on the basis I have mentioned; and
(b) the errors were not material to the manner in which her Honour arrived at the ultimate finding of guilt and, further, did not produce a miscarriage of justice. It is not reasonably possible that her Honour might not have arrived at the ultimate finding of guilt if her Honour had not made the errors.
346 Ground 5 has not been made out.
Grounds 1, 2, 2A and 3: their merits
347 It is convenient to consider grounds 1, 2, 2A and 3 together.
348 Ground 1 of the appellant’s appeal asserts that the trial judge 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.
349 Ground 2 of the appellant’s appeal asserts that the trial judge 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.
350 Ground 2A asserts that the trial judge 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.
351 Ground 3 asserts that the trial judge 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 the offences he had committed against Ms M 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’.
352 In my opinion:
(a) the evidence in relation to the appellant’s alleged alibi;
(b) the evidence as to the appellant’s alleged opportunity to encounter Ms Dodd on North West Road at the material time on 29 July 1999; and
(c) the evidence about the earring on the seat cover seized by the police from Mr McConnell’s vehicle on 6 August 1999 allegedly belonging to Ms Dodd,
had relevance to multiple issues.
353 The evidence in relation to the appellant’s alleged alibi was relevant to whether the appellant had the opportunity to encounter Ms Dodd and to whether the earring on the seat cover belonged to Ms Dodd. Also, the evidence as to the appellant’s alleged opportunity was relevant to whether the appellant’s alibi was false and to whether the earring on the seat cover belonged to Ms Dodd. Further, the evidence about the earring on the seat cover was relevant to whether the appellant’s alibi was false and to whether the appellant had the opportunity to encounter Ms Dodd. Those propositions underscored the importance, in the context of the State’s circumstantial case, for the evidence and the facts and circumstances established by the evidence to be evaluated and weighed in their entirety. Each item of evidence and each fact or circumstance established by the evidence was not to be evaluated and weighed in isolation or on a piecemeal basis.
354 The present case was a case where the probability of the correctness of an inference of guilt drawn from all the facts and circumstances of the case was greater than the probability of the truth of any of the individual facts and circumstances.
355 The appellant’s alleged alibi was that he was ‘pretty sure’ he left Moora after 12.00 noon on 29 July 1999 and that he arrived at his home at about 1.00 pm. The State could eliminate any reasonable possibility that the alibi was true by proving that the appellant began his return journey from Moora to his home before 12.00 noon or that he arrived at his home before about 1.00 pm. However, proof that the alibi was false in that the appellant began his return journey from Moora to his home before 12.00 noon did not necessarily prove that the appellant had the opportunity to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm. On the State’s case, it was necessary, having regard to the evidence as to the speed at which Mr McConnell’s vehicle could travel without overheating, for the State to prove that the appellant began his return journey from Moora to his home not later than about 11.35 am.
356 A surprising feature of the trial judge’s reasons is that, despite the interconnections between the evidence in relation to the appellant’s alleged alibi, the evidence as to the appellant’s alleged opportunity and the evidence about the earring on the seat cover, in the context of the State’s circumstantial case, her Honour did not rely upon the evidence about the earring on the seat cover in concluding that:
(a) the appellant’s alleged alibi was false (in that his assertion that on 29 July 1999 he began his return journey from Moora to his home after 12.00 noon was false) and there was no reasonable possibility that the alibi was true [434]; and
(b) the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm [436].
357 Her Honour did, however, rely upon her conclusion that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm in finding that it was not a reasonable possibility that the earring on the seat cover was left there prior to 29 July 1999 or that the earring belonged to anyone other than Ms Dodd [787].
358 In my opinion, 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.
359 If the evidence established that the earring on the seat cover belonged to Ms Dodd then, having regard to the trial judge’s unchallenged findings of fact that:
(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 [321];
(b) Ms Dodd must have been picked up on North West Road at that time by a person who had a motor vehicle [322];
(c) Ms Dodd is dead [321]; and
(d) the person with a motor vehicle who picked up Ms Dodd was responsible for her death [322],
the fact that the earring belonged to Ms Dodd (in combination with the propensity evidence) would be of powerful (if not overwhelming) probative force in disproving the appellant’s alibi and in establishing that he had in fact encountered Ms Dodd on North West Road at the material time on 29 July 1999.
360 In my opinion, there were two indispensable facts or circumstances which the State had to prove as part of its circumstantial case. First, that the appellant’s alleged alibi was false. Secondly, that the earring on the seat cover belonged to Ms Dodd. The earring on the seat cover was of fundamental importance to the State’s case in that if there was no reasonable possibility that the earring was left on the seat cover before 29 July 1999 and no reasonable possibility that the earring belonged to anyone other than Ms Dodd, then the earring directly connected the appellant with Ms Dodd and the only reasonable inference open, on all the evidence, was that the appellant picked up Ms Dodd at the time she disappeared and from the place where she disappeared.
361 The two indispensable facts or circumstances I have mentioned were so essential to the process of reasoning towards guilt that each of them had to be established beyond reasonable doubt. See Shepherd (579). To that extent, the State’s case was, to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourne rev. 1981), par 2497, a ‘links in a chain’ case. Otherwise, the evidence relied upon by the State comprised ‘strands in a cable’.
362 The term ‘alibi’, in the context of the criminal law, refers ordinarily to a defence raised by the accused to the effect that the accused was not present at the place where the charged offence was committed but was at some other particular place or in some other particular area.
363 By s 96(3)(a) of the Criminal Procedure Act, if the accused intends to give or adduce any ‘alibi evidence’ (as defined in s 62(1) of the Act), the accused must lodge and serve, within the prescribed period before the trial date, written notice of the accused’s intention to do so, the details of the nature of the evidence and the name of each person who the accused intends to call to give any such evidence and the person’s address or other information sufficient to enable the person to be located.
364 Where an accused gives, adduces or points to evidence of an alibi, no onus of proving the alibi rests on the accused. The burden of proving the accused’s guilt beyond reasonable doubt remains upon the State. It is necessary for the State to remove any reasonable doubt which the alibi may create. If the State fails to satisfy the tribunal of fact beyond reasonable doubt that the alibi evidence should be rejected, then the accused must be found not guilty. The State must eliminate any reasonable possibility that the alibi is true before the accused can be convicted. If the State satisfies the tribunal of fact beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that the tribunal of fact must necessarily find the accused guilty. The burden remains upon the State to prove beyond reasonable doubt each element of the charged offence. See R v Johnson; R v Taylor; Killick v The Queen; R v Small; Palmer v The Queen; R v J (No 2); R v Kanaan; R v Merrett.
365 In Johnson, the Court of Criminal Appeal said ‘[i]t may be that the true view of an alibi is the same as that of self‑defence or provocation’ (57).
366 In Taylor, the Court of Appeal of New Zealand said:
As with self‑defence, provocation and intoxication so, in our opinion, with alibi. It is not different in character from the other defences mentioned, and there are no special features about it (986).
367 In Killick, Gibbs CJ, Murphy and Aickin JJ referred with approval to Johnson and Taylor. Their Honours said:
Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward as it must negative a claim that the accused acted in self‑defence or as a result of provocation: see Reg v Johnson ((1961) 46 Cr App R 55); Reg v Taylor ([1968] NZLR 981, at pp 985 ‑ 986) (569 ‑ 570).
368 In Palmer, the appellant was charged with 11 counts of sexual offences against a girl aged 14 years. He was convicted after a trial of 10 of the 11 charges. A majority of the High Court (Brennan CJ, Gaudron, McHugh and Gummow JJ; Kirby J dissenting) held that in the face of cogent alibi evidence the convictions were unsafe and unsatisfactory. The judgments of conviction were set aside and judgments of acquittal were entered. Brennan CJ, Gaudron and Gummow JJ said in the course of considering the stark inconsistency between the complainant’s evidence and the alibi evidence:
Moreover, the summing up did not draw the jury’s attention to the necessity to be satisfied beyond reasonable doubt that there was no truth in the alibi evidence before they could convict [21].
369 In my opinion, where an accused gives, adduces or points to evidence of an alibi, the principles enunciated by the High Court in Killick and Palmer apply, regardless of whether the State’s case relies solely upon direct evidence or partly upon direct evidence and partly upon circumstantial evidence or wholly upon circumstantial evidence.
370 An alibi may be contained in an accused’s out‑of‑court statements or in evidence of the accused or another witness given on oath or affirmation at the trial. Where an accused is interviewed by police and the accused makes admissible and incriminating statements during the interview, the prosecution may rely upon those statements at the trial. Where the accused also makes exculpatory statements during the interview, the prosecution, if it wishes to rely on the interview at all, is bound ‘to take the good with the bad’ and put the admissible and incriminating statements and the exculpatory statements before the jury. See R v Soma.
371 However, there is a distinction between alibi evidence contained in an accused’s out-of-court statements, on the one hand, and alibi evidence of an accused or other witness given on oath or affirmation at the trial, on the other. Out-of-court statements made by an accused to police officers which are tendered by the prosecutor as evidence at the trial become evidence of the facts in issue whether those statements are inculpatory (for example, admissions against interest) or exculpatory (for example, self-serving assertions as to the existence of an alibi). See R v Yusuf. It is proper for a trial judge, in his or her summing up or reasons for judgment, to observe that the accused’s out-of-court statements (including any assertions as to the existence of an alibi) are not sworn or affirmed testimony and have not been tested in cross-examination. The trial judge is entitled to inform the tribunal of fact that it is open to the tribunal of fact to evaluate the accused’s out-of-court statements (including any assertions as to the existence of an alibi) in that light. The trial judge is also entitled to inform the tribunal of fact that exculpatory parts of an out-of-court statement do not necessarily have the same weight as inculpatory parts. The weight to be given to an accused’s exculpatory out-of-court statements is a matter for the tribunal of fact to consider and determine. See Mule v The Queen.
372 In the present case, the appellant’s alleged alibi had a number of notable aspects. First, although there was evidence, which the trial judge accepted, that the appellant had visited Moora on the morning of 29 July 1999, the time at which he began his return journey from Moora to his home was crucial. Secondly, the appellant’s assertion as to the time he began and completed his return journey from Moora to his home (namely, that he was ‘pretty sure’ he left Moora after 12.00 noon and that he arrived at his home at about 1.00 pm) was a self-serving out-of-court statement to police on 3 and 5 August 1999. The appellant did not give evidence on oath or affirmation at the trial. Thirdly, the evidence of the witnesses at the trial as to the timing of the appellant’s alleged movements in Moora on the morning in question were estimates. However, none of the witnesses gave evidence which supported the appellant’s assertion as to the time he began his return journey. Fourthly, the State could eliminate any reasonable possibility that the alibi was true by proving beyond reasonable doubt that the appellant began his return journey from Moora before 12.00 noon or that he arrived at his home before about 1.00 pm. However, the exculpatory effect of the alleged alibi (that is, whether the appellant had the opportunity to encounter Ms Dodd on North West Road between about 11.40 am and about 12.10 pm) would not be eliminated unless the State proved that he began his return journey not later than about 11.35 am. Fifthly, although the appellant’s alleged alibi was not ‘cast iron’, if his assertion as to the time at which he began his return journey was accurate, then (having regard to her Honour’s finding as to the speed at which the appellant ordinarily drove Mr McConnell’s vehicle between the appellant’s home and Moora, her finding as to the speed at which the appellant drove on the day in question and her finding that Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road between 11.40 am and 12.10 pm) the alleged alibi would raise a reasonable doubt as to his guilt.
373 Subject to my opinions and conclusions in relation to ground 3, it was open to her Honour to conclude, for the reasons she gave, that:
(a) the appellant ‘would have arrived’ in Moora between 10.05 am – 10.15 am [359];
(b) the appellant had a conversation with Ms Crouch ‘shortly after 10.35 am’ [361] – [362];
(c) the appellant was in the video store ‘around 10.20 am – 10.30 am’ [365] – [367];
(d) at ‘roughly’ between 10.30 am – 11.00 am, the appellant had a conversation with Mr Ellis [369]; and
(e) it ‘would have taken’ the appellant ‘no more than five minutes’ to drive from the Australia Post shop to Supa Valu [370].
374 I think that her Honour’s expression ‘would have arrived’ in Moora between 10.05 am – 10.15 am, in the context of the relevant part of her Honour’s reasons considered as a whole, indicates that her Honour found that the appellant did arrive in Moora between 10.05 am – 10.15 am. Similarly, I think her Honour’s expression ‘would have taken’, in the context of the relevant part of her Honour’s reasons considered as a whole, indicates that her Honour found that the appellant did take ‘no more than five minutes’ to drive from the Australia Post shop to Supa Valu.
375 The appellant asserted in his statements to the police that on the morning of 29 July 1999 he went to Australia Post to pay $80 for a postal order and to obtain a tax pack. He also said that he had to go to the newsagency to get another tax pack for Mr McConnell. The appellant thought he did not purchase anything at the newsagency. He ‘[was not] there long’. Her Honour did not mention, in the course of examining the appellant’s alibi, that he claimed to have visited the newsagency immediately after he went to Australia Post. However, having regard to her Honour’s finding that the appellant was likely to have completed his grocery shopping at Supa Valu at about 11.02 am to 11.06 am [380], it is apparent that her Honour’s failure to refer to the appellant’s earlier visit to the newsagency was an immaterial omission. If the appellant did visit the newsagency for a brief period to obtain a tax pack, that fact is not inconsistent with her Honour’s finding that the appellant completed his grocery shopping at Supa Valu at about 11.02 am to 11.06 am.
376 As I have mentioned, the appellant asserted in his statements to the police that on the morning of 29 July 1999 he went to Supa Valu in Moora before he went to DJs Butcher and the Pioneer Bakery.
377 Subject to my opinions and conclusions in relation to ground 3, it was open to the trial judge to conclude, for the reasons she gave, that on 29 July 1999 the appellant was likely to have completed his grocery shopping at Supa Valu at about 11.02 am to 11.06 am [380].
378 DJs Butcher and Supa Valu were in the same building.
379 Subject to my opinions and conclusions in relation to ground 3, it was open to her Honour to conclude, for the reasons she gave, that the appellant was likely to have arrived at DJs Butcher at ‘around 11.10 am’ and that he ‘would have concluded’ his shopping at DJs Butcher ‘by 11.25 am’. I think that her Honour’s expression ‘would have concluded’, in the context of the relevant part of her Honour’s reasons considered as a whole, indicates that her Honour found that the appellant did complete his shopping at DJs Butcher by about 11.25 am.
380 As to the timing of the appellant’s alleged transaction at the Pioneer Bakery, I am satisfied that:
(a) The evidence concerning the till records from the Pioneer Bakery established that there was only one transaction for $4.40 (consistent with the cost of two pies at $2.20 each, which the appellant claimed to have purchased) on 29 July 1999. Her Honour’s analysis of the till records led her to conclude that, as a broad estimation, this single transaction occurred between 10.30 am and 11.30 am [407] ‑ [413]. Her Honour’s analysis as to when this transaction occurred was based solely upon the till records and the evidence of the Pioneer Bakery’s office manager, Ms Russell, as to the interpretation of the till records. The opening words to [413] of her Honour’s reasons make it clear that it was ‘[o]n the basis of Ms Russell’s evidence’, and not on the basis of any other evidence, that her Honour was satisfied as to this timeframe.
(b) Ms Russell acknowledged the possibility that the transaction could have occurred after 11.26 am. In particular, Ms Russell accepted the possibility that the $4.40 transaction could have occurred less than one hour before 12.26 pm. However, the computerised till records revealed that 31 transactions had occurred between the $4.40 transaction and 12.26 pm. The computerised till records also revealed an average of about 21 – 25 transactions per hour. Although the period between 12.00 noon and 1.00 pm was busy, Ms Russell did not accept that the number of transactions during that period would be twice the average. The acceptance of Ms Russell’s evidence shows a possibility, but also the improbability, of the relevant transaction falling outside the ‘broad estimation’ of 10.30 am to 11.30 am [413].
381 Subject to my opinions and conclusions in relation to ground 3, it was open to the trial judge to conclude, for the reasons she gave, that if the appellant did in fact purchase two pies from the Pioneer Bakery on 29 July 1999, then he was likely to have begun his return journey from Moora at ‘around 11.30 am’.
382 Unlike DJs Butcher, there was no evidence, independent of the appellant’s self‑serving out‑of‑court statement, that he had attended the Pioneer Bakery. Her Honour was not prepared to make a positive finding that the appellant had attended the Pioneer Bakery. Her Honour merely found that it was ‘possible’ that he did so [438]. Significantly, however, her Honour assumed that the appellant did in fact purchase two pies from the Pioneer Bakery in arriving at her conclusion that he was likely to have begun his return journey from Moora at ‘around 11.30 am’.
383 Subject to my opinions and conclusions in relation to ground 3, the trial judge was entitled to be satisfied beyond reasonable doubt that the appellant’s alleged alibi was false (in that his assertion that on 29 July 1999 he began his return journey from Moora to his home after 12.00 noon was false) and there was no reasonable possibility that the alibi was true. I do not accept that her Honour’s conclusion as to the approximate time (that is, between about 11.02 am and 11.06 am) at which the appellant completed his grocery shopping at Supa Valu was based upon speculation. Also, I do not accept that her Honour’s fact-finding in relation to the approximate time at which he completed his transactions at DJs Butcher and the Pioneer Bakery were flawed. Subject to my opinions and conclusions in relation to ground 3, it was open to her Honour to be satisfied to the criminal standard that the appellant’s alleged alibi was false having regard to her Honour’s findings in relation to the timing of the appellant’s transactions at Supa Valu and DJs Butcher; her Honour’s assumption (favourable to the appellant) that he had in fact attended the Pioneer Bakery; her Honour’s finding as to the timing of the assumed transaction at the Pioneer Bakery; her Honour’s conclusion that the appellant was likely to have begun his return journey from Moora at ‘around 11.30 am’; and the length of the interval (namely about 30 minutes) between her Honour’s conclusion that the appellant was likely to have left Moora at ‘around 11.30 am’ and the appellant’s assertion that he was ‘pretty sure’ that he left Moora after 12.00 noon. As I have mentioned, her Honour’s failure to refer to the appellant’s visit to the newsagency for a brief period to obtain a tax pack was an immaterial omission.
384 I accept that there is a logical error in her Honour’s finding at [363] concerning Ms Crouch overtaking the appellant after departure from Moora. If Ms Crouch left Moora before the appellant then, obviously, she could not have overtaken the appellant further down the road.
385 However, I am not persuaded that the trial judge’s erroneous finding that Ms Crouch ‘should have overtaken [the appellant]’ materially influenced her Honour’s findings about the timing of the appellant’s movements in the course of assessing the truthfulness of his alibi. Although her Honour accepted that Ms Crouch was a ‘very impressive witness’, her Honour emphasised that she did not accept Ms Crouch’s evidence as to the speed at which she drove, or as to the time she took to travel, from her farm to Moora [364]. Also, her Honour had ‘difficulty’ accepting Ms Crouch’s evidence as to how long she took to attend to various items of business in Moora and as to the time at which she departed from Moora. Her Honour observed that Ms Crouch had not been questioned by counsel on a time discrepancy [364]. Her Honour’s erroneous observation at [363] was made in the course of a detailed consideration of the evidence as to the appellant’s movements, which her Honour undertook at [323] ‑ [413]. After that detailed consideration, her Honour arrived at the conclusions at [433] ‑ [439]. Her Honour did not refer again to what she had said at [363]. Her Honour’s logical error concerning Ms Crouch overtaking the appellant after departure from Moora did not, either alone or in combination with any other error or circumstances, produce a miscarriage of justice. It is not reasonably possible, having regard to all of her Honour’s findings in relation to the appellant’s alleged alibi, that her Honour might not have been satisfied beyond reasonable doubt that the alibi was false if her Honour had not made the logical error. I am also of that opinion in relation to her Honour’s finding of opportunity which is the subject of ground 2.
386 Subject to my opinions and conclusions in relation to ground 3, there is no merit in counsel for the appellant’s complaint about the manner in which her Honour assessed the credibility and reliability of the appellant’s out-of-court statements to the police as to his movements on 29 July 1999. It is true that, in the course of her fact‑finding in relation to the appellant’s alleged alibi, her Honour did not mention that the out‑of-court statements were made voluntarily within four days of 29 July 1999 and at a time when the appellant was not a suspect. However, her Honour stated at [323] that on 3 August 1999 the appellant gave a written statement to the police about his movements on 29 July 1999, that the appellant was not a suspect as at 3 August 1999 and that the appellant gave his statement voluntarily. There is no doubt, on a fair reading of her Honour’s reasons as a whole, that her Honour was cognisant that the appellant did not become a suspect until a substantial period had elapsed after he made the out-of-court statements to the police.
387 There is no merit in counsel for the appellant’s complaint about the trial judge not referring to the fact that the appellant’s account to police as to his movements on 29 July 1999 was otherwise true or consistent with the facts her Honour had found, until later in her reasons at [796]. It is true that, in the course of her fact-finding in relation to the appellant’s alleged alibi, her Honour did not mention that the appellant’s account to police as to his movements on 29 July 1999 was, in numerous respects, true or consistent with the facts her Honour had found. However, the fact that her Honour did not mention, until later in her reasons, those features of the appellant’s account to police did not undermine her Honour’s conclusion that the appellant’s alleged alibi was false. Her Honour’s failure to mention, until later in her reasons, those features of the appellant’s account to police did not, either alone or in combination with any other error or circumstances, produce a miscarriage of justice. It is not reasonably possible, having regard to all of her Honour’s findings in relation to the appellant’s alleged alibi, that her Honour might not have been satisfied beyond reasonable doubt that the alibi was false if her Honour had mentioned, in the course of her fact-finding in relation to the appellant’s alleged alibi, that the appellant’s account to police as to his movements was, in numerous respects, true or consistent with the facts her Honour had found.
388 In my opinion, it is apparent, on a fair reading of the relevant part of her Honour’s reasons as a whole, that her Honour’s conclusion that the appellant’s alleged alibi was false was not based upon or influenced by her findings at [435] or her finding in the first sentence of [436]. Her Honour found at [435] that if the appellant left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area at around 12.07 pm. Her Honour also found at [435] that if, after she was last seen at the location of the 961 marker at around 11.40 am, ‘Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, [the appellant] would have been in the area where Ms Dodd was on North West Road at about 12.05 pm’. Her Honour found in the first sentence of [436] that the appellant had ‘the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm’. I am satisfied that those findings by her Honour related to her Honour’s conclusion that the appellant had the opportunity to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm and not to her Honour’s conclusion that the appellant’s alibi was false.
389 The trial judge was entitled to evaluate the appellant’s out-of-court statements having regard to the fact that they were not sworn or affirmed testimony and had not been tested in cross-examination. Her Honour was also entitled to give the exculpatory parts of the out-of-court statements less weight than the inculpatory parts. Her Honour could properly take into account her findings of fact in relation to other relevant and admissible evidence adduced at the trial, in addition to the appellant’s alleged alibi not having been verified by sworn or affirmed evidence or tested by cross‑examination. Subject to my opinions and conclusions in relation to ground 3, I am not persuaded that her Honour’s approach to the evaluation of the appellant’s out-of-court statements was misconceived or unfair and I am not persuaded that her Honour’s findings in relation to those statements were erroneous.
390 I am satisfied, upon my appraisal of her Honour’s reasons as a whole, that her Honour did not engage in impermissible speculation or mere conjecture in making findings as to the timing of the appellant’s movements in Moora on 29 July 1999 or the timing of his arrival at and his departure from Moora. Naturally, her Honour’s findings in relation to timing involved estimates. However, the estimates were made on a rational basis. Her Honour had the advantage of evaluating the credibility and reliability of the witnesses and of receiving and considering the entirety of the evidence as it was adduced in the course of the trial. That advantage is not fully shared by this court reading the transcript. Subject to my opinions and conclusions in relation to ground 3, the findings as to timing were open to her Honour having regard to the evidence as a whole and her Honour’s assessment of it.
391 Subject to my opinions and conclusions in relation to ground 3, it was open to the trial judge to be satisfied to the criminal standard, having regard to her Honour’s findings of fact in relation to the appellant’s alleged alibi and the process of reasoning she adopted, that:
(a) the appellant’s assertion that on 29 July 1999 he began his return journey from Moora to his home after 12.00 noon was false; and
(b) there was no reasonable possibility that his assertion was true,
without taking into account any finding as to whether the earring on the seat cover belonged to Ms Dodd.
392 Ground 1 of the appeal has not been made out.
393 The trial judge found that Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road ‘between about 11.40 am and 12.10 pm on 29 July 1999’ [321].
394 The time interval between about 11.40 am and about 12.10 pm was fixed by her Honour on the basis of:
(a) her Honour’s acceptance of Mr Stribley’s evidence that he saw Ms Dodd near the location of the 961 marker at ‘about 11.40 am’ [178];
(b) her Honour’s finding that Mr Stribley’s identification of Ms Dodd at the location of the 961 marker at ‘about 11.40 am’ was ‘the last reliable sighting of Ms Dodd’ [318];
(c) her Honour’s finding that there were no witnesses who claimed to have been in the area of the location of the 961 marker ‘from around 11.40 am – 12.10 pm’, apart from Mr Peacock and Mr Barrett [318];
(d) her Honour’s finding that the failure of Mr Peacock and Mr Barrett to see Ms Dodd was not decisive [318]; and
(e) her Honour’s finding that there were witnesses who claimed to have driven along North West Road at the location of the 961 marker ‘from about 12.10 pm onwards’ and none of them gave evidence that they saw Ms Dodd, apart from Bruce Smith and Mr Davies whose evidence her Honour did not accept [319].
395 The trial judge found that the appellant did in fact have the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at ‘about 12.05 pm’ [436]. Her Honour actually made that finding. I accept the appellant’s submission that when her Honour’s reasons are considered as a whole her Honour did not in fact find, on the balance of probabilities, that the appellant had the opportunity to encounter Ms Dodd on North West Road between 11.45 am and 12.05 pm. Her Honour found only that it was possible [437], but positively found that the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm [436].
396 The time of ‘about 12.05 pm’ was fixed by her Honour on the basis of:
(a) her Honour’s finding, in the context of considering the appellant’s alleged alibi, that the appellant ‘was likely’ to have begun his return journey from Moora to his home at ‘around 11.30 am’ [434];
(b) her Honour having made that finding on the assumption that the appellant had visited all of the businesses which he claimed to have visited in Moora, including the Pioneer Bakery, despite her Honour having concluded that she was not minded to accept his account without independent evidence [434], [438];
(c) her Honour’s finding that the appellant ordinarily drove Mr McConnell’s vehicle between the appellant’s home and Moora at a speed of about 80 km per hour and her Honour’s inference that sometimes the appellant drove ‘a bit faster or a bit slower’ than 80 km per hour [94]; and
(d) her Honour’s reasoning at [433] – [436]:
The matter for me to determine is whether the timing of [the appellant’s] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm.
My finding in this regard is that if I accept that [the appellant] transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am. I am satisfied that the alibi is false, in that he did not leave Moora after 12.00 pm. There is no reasonable possibility that the alibi is true.
If he left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area at around 12.07 pm. If, after she was last seen near the location of the 961 marker at around 11.40 am Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, [the appellant] would have been in the area where Ms Dodd was on North West Road at about 12.05 pm.
I find that [the appellant] had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm.
397 So, on the assumption that the appellant had visited the Pioneer Bakery, the trial judge was satisfied, on the basis that he was ‘likely to have left Moora around 11.30 am’ and he would have driven Mr McConnell’s vehicle at an average speed of 80 km per hour, that the appellant did in fact have the opportunity to encounter Ms Dodd at ‘about 12.05 pm’.
398 I note that:
(a) the trial judge acknowledged that ‘the timeframe for [the appellant] to encounter and pick up Ms Dodd [was] ”extremely tight”’ [436]; and
(b) her Honour found that the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at ‘about 12.05 pm’, without taking into account any finding as to whether the earring on the seat cover belonged to Ms Dodd.
399 I do not accept the appellant’s submission that the State was obliged to prove beyond reasonable doubt that Ms Dodd had not already gone missing before 12.05 pm.
400 As I have mentioned, there were two indispensable facts or circumstances which the State had to prove beyond reasonable doubt as part of its circumstantial case, namely that the appellant’s alleged alibi was false and that the earring on the seat cover belonged to Ms Dodd.
401 Subject to the State proving those two indispensable facts or circumstances, the trial judge had to be satisfied beyond reasonable doubt, having regard to the whole of the evidence which her Honour accepted and all of the findings of fact which her Honour made, that the appellant killed Ms Dodd with the requisite intention or in circumstances to constitute murder. If her Honour was not so satisfied then her Honour was obliged to return a verdict of not guilty.
402 The evidence established that Ms Dodd was alive at about 11.40 am and that she was not seen in the vicinity of the 961 marker from about 12.10 pm (on the basis of which it may be inferred that Ms Dodd had by then already been taken from the road by her killer).
403 It was not necessary, having regard to the two indispensable facts or circumstances I have identified (which the State had to prove beyond reasonable doubt) and having regard to the other components of the State’s circumstantial case, for the State to prove beyond reasonable doubt the negative proposition that Ms Dodd had not already gone ‘missing’ prior to 12.05 pm.
404 As to the average speed at which the appellant drove from Moora to the vicinity of the 961 marker on 29 July 1999:
(a) In his out‑of‑court statements to the police, the appellant said that it took ‘just over half an hour’, but not more than 45 minutes, to travel from his home to Moora in Mr McConnell’s vehicle. The appellant also said that the vehicle ‘doesn’t do more than 80 km an hour’.
(b) At an average speed of 80 km per hour it would take the appellant about 38 minutes to travel the 50.7 km from Moora to his home.
(c) Her Honour inferred, from what the appellant told police as to how long the journey usually took, that sometimes the appellant drove ‘a bit faster or a bit slower’ than 80 km per hour [94]. Thus, her Honour did not find that the maximum speed Mr McConnell’s vehicle could travel was 80 km per hour.
(d) The only evidence that Mr McConnell’s vehicle could not be driven in excess of 80 km per hour was contained in the appellant’s out‑of‑court statements to the police. Sergeant Cleaver, who drove the vehicle from the appellant’s home to Moora after 29 July 1999, gave evidence that the vehicle was not ‘the most roadworthy car’ he had driven, but ‘there [were] no other major issues that I recall’ (ts 1309). However, Sergeant Cleaver did not give any evidence as to the maximum speed at which the vehicle could be driven.
405 There was no direct evidence as to the speed at which the appellant drove on the return journey from Moora to his home on 29 July 1999. There was no evidence as to whether there were or were not any circumstances on the road which may have affected the speed at which the appellant could have travelled on the return journey. However, the appellant said in his out-of-court statements to the police that he regularly drove Mr McConnell’s vehicle between the appellant’s home and Moora and that the one-way journey took him ‘just over half an hour’. The appellant had plans to travel from his home to Perth on the afternoon of 29 July 1999. As her Honour noted at [338], the appellant said in his statement that when he arrived at home he ‘was in a bit of a rush’ [323]. In all the circumstances, the proper inference is that the appellant was likely to have travelled at an average speed of between 75 km per hour and 80 km per hour on the return journey. On that basis, it would have taken the appellant:
(a) between about 35 minutes and about 37 minutes to travel the distance of 46.7 km from Moora to the point 2 km east of the 961 marker; and
(b) between about 37 minutes and about 39 minutes to travel the distance of 48.7 km from Moora to the 961 marker.
406 Her Honour’s finding that the appellant would have driven Mr McConnell’s vehicle at an average speed of 80 km per hour on the return journey from Moora to his home did not, either alone or in combination with any other error or circumstances, produce a miscarriage of justice. It is not reasonably possible, having regard to all of her findings, that her Honour might not have been satisfied that the appellant had the opportunity to encounter Ms Dodd on North West Road between about 11.40 am and about 12.10 pm if her Honour had inferred that the appellant was likely to have travelled at an average speed of between 75 km per hour and 80 km per hour on the return journey, rather than at a speed of 80 km per hour.
407 As to the inference that Ms Dodd continued to walk east past the location of the 961 marker and the inference as to her walking speed:
(a) Ms Dodd’s actual walking speed was established by the evidence to be about 4 km to 4.5 km per hour.
(b) Her Honour found that the last reliable sighting of Ms Dodd was by Mr Stribley at the location of the 961 marker at about 11.40 am [318]. Mark Weaver and Fiona Weaver, who were State witnesses at the trial, gave evidence that they saw Ms Dodd alight from Ms Johnson’s vehicle at the Winjardie Road intersection at about 11.00 am [144]. The Winjardie Road intersection is about 3 km from the 961 marker. If Ms Dodd travelled that distance on foot in 40 minutes she would have been travelling at an average speed of 4.5 km per hour. That is a normal walking pace. Mark Weaver and Fiona Weaver also gave evidence that they saw Ms Dodd again about 15 minutes later near the entrance to the Badgingarra tip [145]. That evidence supports the proposition that Ms Dodd was walking at an average speed of about 4 km per hour in that, during the 15 minute period between the two sightings of her, Ms Dodd had travelled a distance of about 1 km.
408 In my opinion, it was open to her Honour to infer that Ms Dodd continued to walk in an easterly direction after she was seen by Mr Stribley at about 11.40 am. It is unlikely that, despite a number of people having seen Ms Dodd walk at a normal walking pace in an easterly direction along North West Road, Ms Dodd suddenly stopped walking after Mr Stribley had passed her on the road.
409 Mr Stribley’s evidence is important in evaluating the evidence of Mr Barrett. The trial judge examined the interplay between their evidence at [232], [233] and [237].
410 Mr Stribley gave evidence that, while driving in an easterly direction on North West Road:
(a) Mr Stribley saw Ms Dodd at the location of the 961 marker (ts 627);
(b) about 5 to 10 minutes later, at a location before (that is, to the west of) Muthawandery Road, Mr Stribley saw ‘what I call a farm ute, an older style white – dirty white colour, a farm ute’ travelling in the opposite direction (ts 629 – 632);
(c) about 5 to 10 minutes after seeing the ute, Mr Stribley saw a Telstra vehicle to the east of Muthawandery Road (ts 631); and
(d) about 10 to 15 minutes after seeing the Telstra vehicle, Mr Stribley saw another car or wagon (but not a truck or van) near the Dandaragan Road intersection (ts 632 ‑ 633).
411 Two marked Telstra vehicles were driven in a westerly direction from Moora on 29 July 1999 and passed the location of the 961 marker. Mr Barrett, a Telstra employee, left Moora at about 10.50 am [229]. When he was about 5 km from Moora, Mr Barrett realised that he had failed to bring some cables with him. He returned to Moora. On the return journey to Moora he passed another Telstra employee, Mr Hale, who was driving a marked Telstra vehicle in a westerly direction. Mr Hale estimated that he saw Ms Dodd at about 11.30 am on North West Road between Wathingarra Road and Badgingarra Road. Given their respective departure times and locations, Mr Hale’s vehicle could not have been the Telstra vehicle seen by Mr Stribley. That is because Mr Stribley did not see the Telstra vehicle he saw until between 11.50 am and 12.00 noon and at a point well to the east of the place where Ms Dodd went missing.
412 Mr Barrett gave evidence that he left Moora on the second occasion at about 11.30 am. That is consistent with call charge records which reveal that Mr Barrett concluded a telephone call in Moora at 11.29 am [229]. Her Honour did not make any finding accepting Mr Barrett’s estimate of the time at which he departed from Moora or, by deduction, the speed at which he travelled. Mr Barrett estimated that he departed from Moora ‘at around 11.30 am’ [229]. On the basis of his estimate that it took him about 30 minutes to drive from Moora to the Brand Highway, he would have been travelling at an average speed of 116 km per hour, including while he was driving out of Moora and into Badgingarra [230]. Her Honour decided that it was more likely that Mr Barrett had travelled at an average speed of 96 km per hour [235]. Mr Barrett gave evidence that he ‘definitely’ did not see any person on North West Road and he did not recall seeing any vehicles on North West Road [230]. If Mr Barrett had driven from Moora at 96 km per hour and the appellant had driven from Moora five minutes earlier at 80 km per hour, they would have reached a point 2 km east of the 961 marker at about the same time. However, on Mr Stribley’s evidence, the utility he saw (which appears to have been Mr McConnell’s vehicle) was ahead of the Telstra vehicle he saw (which appears to have been Mr Barrett’s vehicle) by about five to 10 minutes. That interval was sufficient for the appellant to have interacted with Ms Dodd and not to have been seen by Mr Barrett. Her Honour was entitled to accept Mr Stribley’s evidence in preference to Mr Barrett’s evidence where their evidence was inconsistent or in conflict. Therefore, contrary to the appellant’s contention, Mr Barrett’s evidence did not give rise to a reasonable doubt as to whether the appellant had the relevant opportunity to encounter Ms Dodd.
413 In my opinion, the appellant’s criticisms of the trial judge’s reasoning in relation to Mr Peacock’s evidence overlook her Honour’s findings to the effect that Mr Peacock’s recollection as to times was not merely unreliable, but was plainly wrong.
414 Mr Peacock accepted that his estimates as to times were ‘rubbery’ [220]. Lyall Schwan’s evidence was important in establishing why Mr Peacock’s ‘rubbery’ recollection as to times could not be correct.
415 Her Honour accepted Mr Peacock’s evidence that he spoke to Mr Schwan at Rural Traders and that Mr Schwan was ‘in a hurry’ to get to a dental appointment [221]. For that reason, Mr Schwan was conscious of the time and accordingly more reliable on that issue. Mr Schwan was, in fact, running late for his dental appointment. When Mr Schwan was serving another customer (not Mr Peacock) a member of his staff interrupted him to say, ‘it’s 20 past 12 [y]ou had better get going’ [222]. Mr Schwan left Rural Traders, collected his wife’s banking from her shop in Badgingarra and then left Badgingarra for Moora. He left Badgingarra for Moora at 12.30 pm [222]. Mr Schwan knew that he was running late. He asked his wife to call the dentist and tell them he would be late. Mr Peacock gave evidence that Mr Schwan left Rural Traders shortly before he did. That informed her Honour’s finding that Mr Peacock was at Rural Traders at about 12.20 pm and that he left Rural Traders at about that time.
416 Mr Peacock’s ‘rubbery’ estimate was that he had left his farm at 11.30 am. It took about 17 minutes to drive from his farm to Badgingarra at 90 km per hour [219]. If his ‘rubbery’ estimate was reliable, Mr Peacock would have arrived at Rural Traders at about 11.47 am. It is clear from Mr Schwan’s reliable evidence that Mr Peacock arrived at Rural Traders well after 12.00 noon. On the preponderance of the evidence, Mr Peacock did not leave his farm until shortly before 12.00 noon.
417 Similarly, Mr Peacock’s evidence that he had returned to his farm as early as 12.30 pm was plainly wrong, given that he purchased his lunch at the Badgingarra Roadhouse at about 12.30 pm [222] ‑ [224]. Hence, the trial judge found that Mr Peacock would not have returned to his farm until at least 12.50 pm.
418 The appellant’s contention that Mr Peacock’s evidence ought to have raised a reasonable doubt as to the appellant’s guilt depends primarily upon an acceptance of Mr Peacock as a reliable witness. However, as her Honour in effect found, Mr Peacock’s recollection as to times, which he candidly stated were ‘rubbery’, were plainly wrong. Her Honour rightly found that Mr Peacock’s statements concerning time ‘do not add up’ [226]. Her Honour also noted that it was entirely possible that, as Mr Peacock was rushing and preoccupied, he was not observant as he drove [226]. After taking his evidence at its highest, her Honour was only able to find that Mr Peacock’s evidence was consistent with Ms Dodd not being on North West Road between Wathingarra Road and Badgingarra, at whatever time Mr Peacock drove past that point between 11.30 am and 12.10 pm [227].
419 It is unsurprising that Mr Peacock’s evidence did not cause the trial judge to doubt her findings, on the totality of the evidence, as to Ms Dodd’s movements [227]. Her Honour was entitled to arrive at that conclusion. Mr Peacock’s evidence does not give rise to a reasonable doubt as to the appellant’s opportunity to encounter Ms Dodd, either alone or in combination with other relevant evidence. Further and in any event, as I have mentioned, her Honour was not required to find that the State had proved opportunity beyond reasonable doubt and, as I explain below, her Honour did not direct herself in that manner.
420 Further, the absence of any error in her Honour’s consideration of Mr Peacock’s evidence is supported by other facts as follows.
421 Mr Stribley saw Ms Dodd in the vicinity of the 961 marker at about 11.40 am. Between five and 10 minutes later he saw the older, dirty white farm ute travelling west. That observation is plainly consistent with the appellant driving Mr McConnell’s vehicle on that stretch of road and in that direction and at about that time. Mr Stribley saw that vehicle at a location to the west of Muthawandery Road. The next vehicle that Mr Stribley saw, between five and 10 minutes after he saw the ute, was the marked Telstra vehicle. That observation is plainly consistent with Mr Barrett driving his marked Telstra vehicle on that stretch of road and in that direction and at about that time. Mr Stribley could not recall the third and final vehicle that he saw, other than that it was a car or wagon and not a truck or van (ts 629 ‑ 633).
422 Mr Stribley did not see Mr Peacock’s distinctive olive green utility with a 400 litre orange firefighting tank and boom on the back. Mr Peacock entered North West Road at the Wathingarra Road intersection (ts 733). Wathingarra Road is 5.1 km east of the 961 marker.
423 That neither Mr Stribley nor Mr Peacock saw the other’s vehicle, and that only Mr Stribley saw Ms Dodd at the location of the 961 marker, belies the suggestion that Mr Stribley and Mr Peacock were on the same stretch of North West Road at the same time which, in turn, belies the proposition that Mr Peacock left his farm as early as 11.30 am.
424 I have already dealt with her Honour’s findings in relation to Ms Crouch’s evidence. See [384] ‑ [385] above.
425 In my opinion, there were obvious difficulties with Bruce Smith’s evidence and the trial judge was entitled to refuse to accept his evidence [319].
426 Bruce Smith said in his evidence-in-chief that he first saw a ‘girl’ in the vicinity of the Cook farm which was, on his evidence, about 5 or 6 km along Midlands Road. Midlands Road runs north from Moora and is not proximate to North West Road [195] ‑ [196]. On Bruce Smith’s evidence, he observed the girl shortly before 1.30 pm [195] ‑ [197].
427 Bruce Smith’s account in cross-examination was significantly different from his evidence-in-chief in relation to where he saw the ‘girl’. He said in cross-examination that he saw the girl at the intersection of what would be Coalara Road and North West Road [202] ‑ [207]. That location is 2.2 km further east of Ms Dodd’s intended destination, namely Seldom Seen farm.
428 Bruce Smith’s reliability was also damaged by his claim that he had asked Mr Burnett whether he had seen the ‘girl’ (to which Mr Burnett replied that he had not). By contrast, Mr Burnett was ‘gobsmacked’ when Bruce Smith told the police during the following days, in Mr Burnett’s presence, that they had both seen the girl [211].
429 It was impossible for Ms Dodd to have travelled on foot from the location of the 961 marker to the Coalara Road/North West Road intersection, a distance of about 15 km, in a little over one and a half hours in order to have then been observed by Bruce Smith. Bruce Smith’s alleged observation could only be correct if someone other than the killer had picked up Ms Dodd in a vehicle along North West Road, had driven her to the vicinity of that intersection where she alighted, had continued on their way and had never come forward [213].
430 Bruce Smith’s description of the clothing worn by the ‘girl’ he allegedly saw differs from the clothing worn by Ms Dodd. Bruce Smith said the girl was wearing a light coloured top [198]. Her Honour accepted other evidence that Ms Dodd was wearing a black singlet with a black cardigan [125].
431 The trial judge was correct in concluding that it made ‘little sense’ for Ms Dodd to have been looking for a lift at the Coalara Road/North West Road intersection because Ms Dodd would have had to have overshot her intended destination (Seldom Seen farm) to have arrived at the intersection [213].
432 The appellant’s contentions extrapolate from unparticularised aspects of the hearsay account of what Ms Dodd said to Ms Johnson to support the proposition that Ms Dodd may have been intending, contrary to all other evidence concerning her intended destination, to travel to Moora rather than Seldom Seen farm. The contention that Ms Dodd intended to travel to Moora because she would have been alone upon arrival at Seldom Seen farm overlooks the evidence of Keith Hammond to the effect that he told Ms Dodd to make herself at home until he returned from Moora later that day [121].
433 The appellant contended that it can be inferred from her Honour’s reasons at [340] that her Honour recognised, correctly, that it was necessary for her to be satisfied beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd on North West Road, notwithstanding her Honour’s satisfaction beyond reasonable doubt that, contrary to his alibi, the appellant had left Moora before 12.00 noon. At the hearing of the appeal, counsel for the State conceded that the appellant’s contention was correct (appeal ts 86 ‑ 87, 100). After the hearing of the appeal, the court put the appellant’s lawyers on notice that it might not accept counsel for the State’s concession and gave the appellant’s lawyers an opportunity to make further submissions on the point. On 17 January 2020, the appellant’s lawyers filed further submissions addressing this issue.
434 The trial judge said at [340]:
The question for me to answer is whether the State has satisfied me that [the appellant] was on North West Road east of the location of the 961 marker between about 11.40 am and 12.10 pm and had the opportunity to pick up Ms Dodd. [The appellant] says that he was in Moora between these times and thus did not have the opportunity to pick up Ms Dodd and to kill her. I remind myself that there is no onus on [the appellant] to prove that he did not have the opportunity to pick up Ms Dodd and to murder her. The onus of proof remains on the State at all times.
435 I do not accept that it can be inferred from her Honour’s reasons at [340] that her Honour recognised or proceeded on the basis that it was necessary for the State to prove beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd on North West Road between about 11.40 am and about 12.10 pm. Her Honour did not make an observation to that effect elsewhere in her reasons. By contrast, her Honour expressly stated that it was necessary for the State to eliminate any reasonable possibility that the appellant’s alleged alibi was true [29]; her Honour expressly found that there was no reasonable possibility that the alibi was true [434]; her Honour expressly stated that it was not a reasonable possibility that the earring found on the car seat cover was left there prior to 29 July 1999 [787]; and her Honour expressly stated that it was not a reasonable possibility that the earring belonged to anyone other than Ms Dodd [787], [793]. It is apparent, from her Honour’s reasons considered as a whole that her Honour examined and made findings on the question of opportunity having regard to the probability or likelihood of relevant facts and circumstances. The proper inference from her Honour’s reasons considered as a whole is that her Honour was of the view that it was necessary for her to be satisfied that the appellant had the opportunity to encounter Ms Dodd on North West Road between about 11.40 am and about 12.10 pm, but the State did not have to prove that fact beyond reasonable doubt. Her Honour was correct in proceeding on that basis. As I have mentioned, the State had to disprove the appellant’s alleged alibi beyond reasonable doubt, but the only other indispensable fact or circumstance that the State had to prove to the criminal standard was that the earring found on the seat cover belonged to Ms Dodd.
436 As I have mentioned, subject to my opinions and conclusions in relation to ground 3, it was open to the trial judge to conclude, for the reasons she gave, that if the appellant did in fact purchase two pies from the Pioneer Bakery on 29 July 1999, then he was likely to have begun his return journey from Moora at ‘around 11.30 am’. As I have mentioned, in all the circumstances, the proper inference is that the appellant was likely to have travelled on the return journey at an average speed of between 75 km per hour and 80 km per hour and, on that basis, it would have taken the appellant between about 35 minutes and about 37 minutes to travel from Moora to the point 2 km east of the 961 marker and between about 37 minutes and about 39 minutes to travel from Moora to the location of the 961 marker. It follows that, subject to my opinions and conclusions in relation to ground 3, the appellant would have arrived at the point 2 km east of the 961 marker at between about 12.05  pm and about 12.07 pm and he would have arrived at the location of the 961 marker at between about 12.07 pm and about 12.09 pm.
437 Subject to my opinions and conclusions in relation to ground 3, the trial judge did not err in finding that the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at ‘about 12.05 pm’ [436]. Subject to my opinions and conclusions in relation to ground 3, her Honour was entitled to find that the appellant had the requisite opportunity. As I have mentioned, in the course of considering ground 1, her Honour had the advantage of evaluating the credibility and reliability of the witnesses and of receiving and considering the entirety of the evidence as it was adduced in the course of the trial. That advantage is not fully shared by this court reading the transcript.
438 Ground 2 has not been made out.
439 As to ground 2A, the trial judge’s reasoning and findings about the earring found on the seat cover which the police seized from Mr McConnell’s vehicle on 6 August 1999 were, relevantly, as follows:
[W]hen considered with the evidence that:
(1) Ms Dodd was wearing an identical earring on 29 July 1999;
(2) [the appellant] was driving Mr McConnell’s ute on that date;
(3) [the appellant] had the opportunity to pick up Ms Dodd;
(4) [the appellant] told the police he would have picked her up had he seen her;
(5) [the appellant] has a propensity to violently assault female hitchhikers; and
(6) [the appellant] has a propensity to seek an earring from such victims,
I find that it is not a reasonable possibility that the earring found on the seat cover was left there prior to 29 July` 1999 or that it belonged to anyone other than Ms Dodd [787].
440 Later, her Honour reiterated her findings that:
(a) at the time she was picked up by her killer, Ms Dodd was wearing ‘ankh silver earrings with a blue stone in the middle of the cross’;
(b) on 6 August 1999, the police seized the seat cover from Mr McConnell’s vehicle and ‘it had on it an ankh earring’;
(c) the ankh earring which was found on the seat cover ‘was identical to one of the earrings worn by Ms Dodd on 29 July 1999’; and
(d) it is not a reasonable possibility that ‘the ankh earring belonged to anyone other than Ms Dodd’ [793].
441 The appellant does not challenge the trial judge’s findings that:
(a) on 29 July 1999, Ms Dodd was wearing an earring identical to the earring found on the seat cover of Mr McConnell’s vehicle that was seized by police on 6 August 1999;
(b) on 29 July 1999, the appellant was driving Mr McConnell’s vehicle; and
(c) the appellant had told the police that he would have picked up Ms Dodd had he seen her.
442 For the reasons I have given in relation to grounds 4 and 5, I am satisfied that the evidence as to the appellant having detained, assaulted and sexually assaulted a female hitchhiker, Ms M, on 1 June 2007 in Queensland, and having demanded that Ms M remove and give him her earring, was properly admitted as propensity evidence at the appellant’s trial. As I have explained, the propensity evidence established that the appellant was the type of person who in 1999 would be inclined or predisposed to pick up a lone female hitchhiker in his motor vehicle in an isolated location and violently and seriously assault her for the purpose of overpowering her so that he could rape her and to seek to obtain an earring from the hitchhiker.
443 Subject to my opinions and conclusions in relation to ground 3, I am satisfied, for the reasons I have given in relation to grounds 1 and 2, that her Honour did not err in rejecting the appellant’s alleged alibi or in finding that the appellant had the opportunity to encounter Ms Dodd on North West Road at the material time.
444 It is significant that the appellant was driving Mr McConnell’s vehicle near the area from which Ms Dodd disappeared at a time proximate to the time of her disappearance.
445 Subject to my opinions and conclusions in relation to ground 3, in all the circumstances the trial judge did not err in finding that it was not a reasonable possibility that the earring found on the seat cover belonged to anyone other than Ms Dodd. Further, subject to my opinions and conclusions in relation to ground 3, in all the circumstances her Honour did not err in making that finding by having regard to her Honour’s finding that the appellant had the opportunity to encounter Ms Dodd on North West Road at the material time.
446 Ground 2A has not been made out.
447 As to ground 3:
(a) The appellant asserted, in the statements he gave to police on 3 and 5 August 1999, that the last thing he did before leaving Moora was to buy ‘a couple of pies for lunch’ at the Pioneer Bakery. The appellant said he was ‘pretty sure it was after [12.00 noon]’. Also, the appellant said that the journey between his home and Moora ‘takes [him] just over half an hour’ and would not take more than 45 minutes. Further, the appellant said that he arrived home from Moora at ‘around 1.00 pm’.
(b) Her Honour was satisfied that the appellant drove to Moora in Mr McConnell’s vehicle on 29 July 1999, visited various retailers and conducted transactions with them. He then drove from Moora to his home. A crucial matter for her Honour to determine was whether ‘the timing of [the appellant’s] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm’ [433].
(c) Her Honour said that ‘if [her Honour accepted] that [the appellant] transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am’. Her Honour said the appellant’s alibi was false in that ‘he did not leave Moora after [12.00 noon]’ [434].
(d) Her Honour said that if the appellant left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, the appellant ‘would have arrived at that area at around 12.07 pm’ [435].
(e) Her Honour found that the appellant ‘had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm’ [436]. Her Honour said that ‘[if the appellant] did not go to [the Pioneer Bakery] or if he finished his business in Moora before 11.30 am, which is quite possible, he had the opportunity to encounter Ms Dodd between 11.45 am and 12.05 pm’ [437].
448 The trial judge then said:
Given [the appellant’s] conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so.
Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police [438] ‑ [439].
449 Next, her Honour considered whether, if the appellant did encounter Ms Dodd on North West Road, he had sufficient time to kill Ms Dodd and dispose of her body before he arrived at the Badgingarra Roadhouse at 1.36 pm [440].
450 The trial judge’s reference at [438] to ‘[the appellant’s] conviction for serious offences’ was to the offences the appellant committed against Ms M in 2007.
451 Her Honour’s reasons at [438] and [439] must be read together. They relate, relevantly, to:
(a) the appellant’s assertions, in his out‑of‑court statements to police, as to his dealings in Moora and the timing of his movements on 29 July 1999; and
(b) her Honour’s comments that she was ‘not minded to accept’ the appellant’s assertions unless there was ‘independent evidence’ to support them.
452 It is apparent, when [438] and [439] are read together, that, by reason of the appellant’s conviction for the offences he committed against Ms M in 2007 and the fact that the appellant’s alleged alibi was embodied in self‑serving out‑of‑court statements that were not made on oath or affirmation, the trial judge was ‘not minded to accept’:
(a) the appellant’s assertions as to the businesses he visited in Moora; or
(b) the appellant’s assertions as to the time he ‘did certain things’,
without ‘independent proof’ of the truth and accuracy of his assertions.
453 Her Honour’s reference at [439] to the time the appellant ‘did certain things’ appears, in context, to relate to the appellant’s assertions as to the time he arrived in Moora, the time he visited the businesses he claimed to have visited, the time he departed from Moora and the time he arrived home from Moora.
454 The expression ‘not minded to accept’ at [438] and [439] connotes that the trial judge was ‘not inclined to accept’ the appellant’s assertions without ‘independent evidence’.
455 The expression ‘independent evidence’ at [438] and [439] indicates that her Honour was ‘not minded [or inclined] to accept’ the appellant’s assertions unless those assertions were corroborated by other evidence which her Honour accepted.
456 The trial judge proceeded to make findings at [438] that the appellant did in fact visit the video store, Australia Post and DJs Butcher because there was ‘independent proof’ that he did so and that the appellant did in fact visit the Bankwest branch and Supa Valu because that was his usual practice when he went to Moora. Her Honour did not make a finding that the appellant visited the Pioneer Bakery because there was no ‘independent evidence’ that he did so. Her Honour merely found that it was ‘possible’ that he visited the Pioneer Bakery.
457 Her Honour made a conditional finding at [434] that ‘if [her Honour accepted] that [the appellant] transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am’. In other words, subject to the condition that her Honour accepted that the appellant visited all of the businesses he claimed to have visited, her Honour found that the appellant was likely to have left Moora at ‘around 11.30 am’. The conditional finding as to the time the appellant was likely to have left Moora (if he did in fact visit all of the businesses he claimed to have visited), namely at ‘around 11.30 am’, was based on other findings and on an assumption that her Honour made.
458 In particular, the trial judge’s conditional finding that the appellant was likely to have departed from Moora at ‘around 11.30 am’ was based on:
(a) her Honour’s acceptance (having regard to ‘independent evidence’) that the appellant was in fact present in Moora on the morning of 29 July 1999;
(b) her Honour’s acceptance (having regard to ‘independent evidence’ and the appellant’s usual practice) that the appellant did in fact visit all of the businesses he claimed to have visited, except the Pioneer Bakery; and
(c) her Honour’s assumption, favourable to the appellant, that the appellant did in fact visit the Pioneer Bakery before he left Moora.
459 After finding that the appellant was likely to have left Moora at ‘around 11.30 am’, her Honour said she was satisfied that the appellant’s alibi was false in that he did not leave Moora, as he had asserted, after 12.00 noon. Her Honour added that there was no reasonable possibility that the alibi was true. I note that there was no ‘independent evidence’ at trial that the appellant left Moora after 12.00 noon or that he arrived home from Moora at ‘around 1 pm’.
460 There is some ambiguity as to whether the trial judge’s reference at [438] to the appellant’s conviction for the offences he committed against Ms M in 2007 related to:
(a) the fact of his conviction for those offences; or
(b) the evidence of the facts and circumstances of those offences that was admitted at the trial as propensity evidence.
461 I consider that her Honour’s reference at [438] to the appellant’s conviction was to the fact of his conviction for the offences he committed against Ms M in 2007. Her Honour was not referring to the evidence of the facts and circumstances of those offences that was admitted at the trial as propensity evidence. I am of that view for the following reasons. First, as counsel for the State acknowledged at the hearing of the appeal (appeal ts 99, 129), the prosecutor did not submit to her Honour that her Honour could or should use the propensity evidence to impugn the appellant’s credibility and, on that basis, discount or reject his alibi unless his assertions as to the time he arrived in Moora, the businesses he visited in Moora and the time he departed from Moora were supported by ‘independent evidence’. The State’s case and the appellant’s case at trial (and the submissions of the prosecutor and defence counsel) were concerned with whether and, if so, to what extent the propensity evidence (either by itself or having regard to other evidence) was probative of the appellant being the type of person who in 1999 was likely to have committed the offence charged. Secondly, if her Honour had intended to rely upon the propensity evidence in connection with the appellant’s alibi, her Honour would have referred to and discussed (in the context of her decision, in effect, that it was necessary for the alibi to be supported by ‘independent evidence’) the inclination or predisposition that the appellant manifested in 2007 and not merely have made a brief reference to the appellant’s conviction.
462 As I have mentioned, at the trial the prosecutor tendered in evidence, as part of the State’s case, the appellant’s out‑of‑court statements to police. The statements included the appellant’s alleged alibi. Also, as I have mentioned, where an accused gives, adduces or points to evidence of an alibi, no onus of proving the alibi rests on the accused. The burden of proving the accused’s guilt beyond reasonable doubt remains upon the State. It is necessary for the State to disprove the alibi. The State must eliminate any reasonable possibility that the alibi is true before the accused can be convicted.
463 In the present case, the appellant did not carry or bear any onus of proving his alleged alibi. The appellant was not obliged to support his alibi by adducing or referring to ‘independent evidence’ or corroboration as a precursor to her Honour considering whether there was at least a reasonable possibility that the alibi was true.
464 I accept that the trial judge was entitled to take into account, in deciding whether the State had disproved the appellant’s alibi (including in deciding whether the State had established that the appellant did not visit some of the businesses he asserted he had visited and in deciding whether the State had established that the appellant did not leave Moora after 12.00 noon), the fact that the appellant’s alibi was embodied in self‑serving out‑of‑court statements he made to the police and not in sworn or affirmed evidence. The weight to be given to the appellant’s self‑serving out‑of‑court statements was a matter for her Honour to consider and determine. Her Honour was also entitled to give the exculpatory parts of the out‑of‑court statements less weight than the inculpatory parts. Her Honour could properly take into account her findings of fact in relation to other relevant and admissible evidence adduced at the trial, in addition to the appellant’s alleged alibi not having been verified by sworn or affirmed evidence or tested by cross‑examination. However, her Honour was not entitled to approach the consideration and determination of the weight to be given to the appellant’s alleged alibi on the basis that, the alibi not having been verified by sworn or affirmed evidence, it was necessary for the appellant to support the alibi by adducing or referring to ‘independent evidence’ or corroboration. I am satisfied that, on a fair reading of the relevant passages in her Honour’s reasons, considered as a whole, her Honour did approach the consideration and determination of the weight to be given to the appellant’s alleged alibi on that impermissible basis. Her Honour’s approach imposed on the appellant, in effect, an onus to adduce independent evidence and, further, was inconsistent with the Longman warning which her Honour correctly gave herself at [56] – [61]. Those material errors of law produced a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act, in that the appellant did not receive a trial according to law. See Filippou [14], where French CJ, Bell, Keane and Nettle JJ said in relation to the New South Wales equivalent of s 30(3)(c) that the provision ‘covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial (See, eg, Weiss v The Queen (2005) 224 CLR 300 at 317 [45])’.
465 In Hall v Braybrook, Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings. See also Hall (648) (Fullagar J); Dawson v The Queen, Phillips v The Queen.
466 In the present case, the evidence relating to the appellant’s conviction in 2007 was evidence of, amongst other things, the appellant’s bad character. The evidence of the appellant’s conviction and of the facts and circumstances of his offending against Ms M was adduced at the trial, pursuant to s 31A of the Evidence Act, because the evidence was ‘propensity evidence’, as defined in s 31A(1), and the criteria specified in s 31A(2) were satisfied. In particular, the evidence (having regard to other evidence adduced by the State at the trial) was evidence of an inclination or predisposition that the appellant had in 1999 when he allegedly committed the offence charged. As I have mentioned, the evidence of the appellant’s conviction and of the facts and circumstances of his offending against Ms M was correctly admitted, pursuant to s 31A, as evidence of that inclination or predisposition. The propensity evidence was probative of the appellant being the type of person who in 1999 was likely to have committed the offence charged. However, the evidence of the appellant’s conviction in 2007 was not admitted on the basis that it was relevant to his credibility generally in 1999 or to his credibility specifically in 1999 in relation to the assertions he made in his out‑of‑court statements to the police. As I have mentioned, the weight to be given to the appellant’s self‑serving out‑of‑court statements was a matter for her Honour to consider and determine. However, her Honour was not entitled to approach the consideration and determination of the weight to be given to the appellant’s alleged alibi on the basis that, the appellant’s conviction in 2007 having shown him to be a person of bad character, it was necessary for the appellant to support the alibi by adducing or referring to ‘independent evidence’ or corroboration. I am satisfied that, on a fair reading of the relevant passages in her Honour’s reasons, considered as a whole, her Honour did approach the consideration and determination of the weight to be given to the appellant’s alleged alibi on that impermissible basis. Her Honour relied upon the convictions as evidence of the appellant’s bad character. The reliance upon the convictions for that purpose was wrong as a matter of law. Her Honour’s approach imposed on the appellant, in effect, an onus to adduce independent evidence and, further, was inconsistent with the Longman warning which her Honour correctly gave herself at [56] – [61]. The material errors of law I have identified produced a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act, in that the appellant did not receive a trial according to law. See Filippou [14].
467 I turn to consider whether, despite the miscarriages of justice I have described in the context of ground 3, ‘no substantial miscarriage of justice has occurred’, within s 30(4) of the Criminal Appeals Act.
468 I am satisfied that no substantial miscarriage of justice has occurred in relation to that part of the appellant’s alibi which concerned the businesses which the appellant asserted he had visited in Moora. I am of that opinion because her Honour assumed, favourably to the appellant, that the appellant did in fact attend the Pioneer Bakery (where he purchased two pies) and her Honour accepted that the appellant did in fact visit all of the other businesses he claimed to have visited. So, despite her Honour indicating that she was ‘not minded to accept’ that the appellant had visited all of the businesses he claimed in his out of court statements to have visited without independent proof that he did so [438], her Honour did, in fact, consider and weigh the appellant’s alleged alibi on the basis that he did in fact visit all of the businesses he claimed to have visited. I am persuaded to the criminal standard of proof that the appellant has not been denied a chance of acquittal which was fairly open to him. See Filippou [15]. I have put aside her Honour’s failure to refer to the appellant’s visit to the newsagency for a brief period to obtain a tax pack because, as I have mentioned, that failure was an immaterial omission.
469 However, I am not satisfied that no substantial miscarriage of justice has occurred in relation to that part of the appellant’s alibi which concerned the time he departed from Moora and the time he arrived home from Moora.
470 As I have mentioned, the appellant asserted in the statements he gave to police on 3 and 5 August 1999 that he was ‘pretty sure’ that he left Moora after 12.00 noon; the journey between his home and Moora takes him just over half an hour and would not take more than 45 minutes; and that he arrived home from Moora at ‘around 1.00 pm’. Also, as I have mentioned, there was no ‘independent evidence’ at the trial that the appellant left Moora after 12.00 noon or that he arrived home from Moora at ‘around 1.00 pm’. The trial judge found that if the appellant had visited all of the businesses he claimed to have visited then he was likely to have left Moora ‘around 11.30 am’ [434]. Her Honour therefore rejected the appellant’s alibi that he did not leave Moora until after 12.00 noon. Further, her Honour found that if the appellant left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area ‘at around 12.07 pm’ [435]. Her Honour then found that the appellant had the opportunity to encounter Ms Dodd on North West Road at ‘about 12.05 pm’ [436]. Her Honour acknowledged that the timeframe for the appellant to encounter and pick up Ms Dodd was ‘extremely tight’ [436]. Her Honour found at [321] that Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road ‘between about 11.40 am and 12.10 pm’. Her Honour formulated the crucial question in relation to timing at [433] when she said that ‘[the] matter for [her Honour] to determine is whether the timing of [the appellant’s] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm’.
471 Her Honour’s finding that if the appellant left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area ‘at around 12.07 pm’ [435], in response to the crucial question she posed, namely ‘whether the timing of [the appellant’s] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm’ [433], demonstrates that her Honour’s finding of opportunity depended, critically, upon the appellant having left Moora by not later than about 11.35 am. Her Honour’s finding was merely that the appellant was likely to have left Moora around 11.30 am if he had visited all of the businesses he claimed to have visited [435]. As I have mentioned, although the appellant’s alleged alibi was not ‘cast iron’, if his assertion as to the time at which he began his return journey was accurate, then (having regard to her Honour’s finding as to the speed at which the appellant ordinarily drove Mr McConnell’s vehicle between the appellant’s home and Moora, her finding as to the speed at which the appellant drove on the day in question and her finding that Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road between about 11.40 am and 12.10 pm) the alleged alibi would raise a reasonable doubt as to his guilt.
472 In the circumstances, the possibility cannot be excluded beyond reasonable doubt that if the trial judge had not impermissibly approached the consideration and determination of the weight to be given to the appellant’s alleged alibi on the basis that it was necessary for the appellant to support the alibi by adducing or referring to ‘independent evidence’ or corroboration, then her Honour may not have found that the appellant departed from Moora at a time (namely by not later than about 11.35 am) that would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm. It is conceivable that her Honour’s impermissible approach to the consideration and determination of the weight to be given to the appellant’s alleged alibi influenced at least some of her Honour’s findings in relation to the timing of the appellant’s movements while he was in Moora and the timing of his departure from Moora. It is necessary for the issues relating to the appellant’s alleged alibi (in particular, whether the State disproved the alibi by eliminating any reasonable possibility that the alibi was true) to be reconsidered according to law. That is not a task which this court can adequately undertake by reference to the transcript. In any event, the proviso in s 30(4) of the Criminal Appeals Act does not permit this court to exercise the function of the fact finding tribunal at the trial. See Lane [48]. It follows that the possibility that the appellant has been denied a chance of acquittal which was fairly open to him cannot be excluded beyond reasonable doubt. See Filippou [15].
473 Ground 3 has been made out.
474 I reiterate, for completeness, that a surprising feature of her Honour’s reasons is that, despite the interconnections between the evidence in relation to the appellant’s alleged alibi, the evidence as to the appellant’s alleged opportunity and the evidence about the earring on the seat cover, in the context of the State’s circumstantial case, her Honour did not rely upon the evidence about the earring on the seat cover in concluding that the appellant’s alleged alibi was false and that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm. Relevantly, in relation to the appellant’s alleged alibi, her Honour did not rely upon the following facts and circumstances:
(a) on 6 August 1999, the police seized the seat cover from Mr McConnell’s vehicle and the cover had on it an ankh earring;
(b) the ankh earring found on the seat cover was identical to one of the earrings worn by Ms Dodd on 29 July 1999;
(c) the appellant was driving Mr McConnell’s vehicle on 29 July 1999;
(d) the appellant told the police that he would have picked up Ms Dodd had he seen her; and
(e) the appellant had an inclination or predisposition to pick up a lone female hitchhiker in his motor vehicle, in an isolated location, and violently and seriously assault her for the purpose of overpowering her so that he could rape her, and to seek to obtain an earring from the hitchhiker,
in considering whether the State had proved beyond reasonable doubt that the appellant’s alleged alibi was false.
475 In my opinion, those facts and circumstances were very significant items of evidence in the proof of the State’s circumstantial case against the appellant.
476 However, the trial judge merely used those facts and circumstances, in combination with her Honour’s finding that the appellant had the opportunity to pick up Ms Dodd, in deciding that it was not a reasonable possibility that the earring found on the car seat cover was left there prior to 29 July 1999 [787] and that it was not a reasonable possibility that the earring belonged to anyone other than Ms Dodd [787], [793].
477 As I have mentioned, the prosecutor did not submit to her Honour that her Honour could or should take into account, in evaluating the weight to be given to the appellant’s alleged alibi and in deciding whether the State had disproved the appellant’s alibi (including in deciding whether the State had established that the appellant did not visit some of the businesses he asserted he had visited and in deciding whether the State had established that the appellant did not leave Moora after 12.00 noon), the appellant’s inclination or predisposition (as revealed by the propensity evidence) as a matter adversely affecting his credit. I will, however, briefly make some comments about the matter.
478 As I have mentioned:
(a) The relevant inclination or predisposition revealed by the propensity evidence was that the appellant was the type of person who would be inclined or predisposed to pick up a lone female hitchhiker in his motor vehicle, in an isolated location, and violently and seriously assault her for the purpose of overpowering her so that he could rape her, and to seek to obtain an earring from the hitchhiker.
(b) The appellant’s violence and depravity towards Ms M were the external manifestation of a perverted state of mind to engage in conduct of that kind against a lone female whom he had picked up in his vehicle in an isolated location.
(c) It is highly likely that the appellant had in 1999 the violent and depraved inclination or predisposition he manifested in 2007.
(d) The evidence as to the appellant’s conduct in relation to Ms M in 2007 could rationally affect, to a significant extent, the assessment of the probability that:
(i) on 29 July 1999, the appellant picked up Ms Dodd in Mr McConnell’s vehicle at the place where she disappeared on North West Road;
(ii) after picking up Ms Dodd, the appellant detained and assaulted her; and
(iii) the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose.
479 At common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. The rationale is that the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence charged. A propensity warning would contradict the basis on which the evidence was admitted. See KRM v The Queen. The same reasoning applies to evidence admitted generally as propensity evidence or relationship evidence under s 31A of the Evidence Act. If the evidence is admitted generally and satisfies the test for admissibility under s 31A, no propensity warning is required. See Noto v The State of Western Australia; Upton v The State of Western Australia; BSD v The State of Western Australia [No 2].
480 Propensity evidence and relationship evidence may be admitted under s 31A of the Evidence Act to rebut lines of defence of which the State has notice and possible lines of defence. See Donaldson v The State of Western Australia.
481 In Santos v The State of Western Australia [No 2], the appellant and a co‑offender, Joseph Micalizzi, were convicted after a joint trial of two counts of possession of a prohibited drug with intent to sell or supply it to another. The appellant piloted a light aircraft from Bankstown airport to Jandakot airport. Mr Micalizzi was his only passenger. Shortly after landing, police intercepted and searched the aircraft. In a black bag, in the rear cargo area of the aircraft, police located about 9 kg of ecstasy and about 22 kg of methylamphetamine. The appellant told the police that his passenger was on a joy flight from New South Wales to Western Australia. The appellant also told the police that he did not know the name of his passenger, that the black bag was not his and that he did not know whether the passenger had any bags when he boarded the aircraft. There was no forensic evidence to link either the appellant or Mr Micalizzi with the black bag containing the drugs. At the trial, propensity evidence concerning two prior drug offences committed by the appellant was adduced pursuant to s 31A of the Evidence Act. The purpose of the propensity evidence, in combination with other evidence, was to demonstrate that the appellant was involved in the business of drug dealing. The appellant did not give evidence at trial. This court dismissed the appellant’s appeal against conviction. In particular, this court rejected the appellant’s contention that the trial judge had erred in ruling that evidence as to the appellant’s prior convictions was admissible under s 31A. On that point, McLure P (Buss JA relevantly agreeing & Mazza JA agreeing) said that the propensity evidence was significantly probative in two respects. First, the propensity evidence was capable of supporting an inference that the appellant was involved in, and financially benefited from, activities connected with the commercial distribution of prohibited drugs. Secondly, the propensity evidence was capable of completely undermining the innocent explanation of the objective facts which the appellant gave to the police in his out‑of‑court statements [35].
482 In the present case, her Honour directed herself in accordance with KRM, Noto, Upton and BSD. See her Honour’s reasons at [54] ‑ [55].
483 The appellant’s inclination or predisposition (which was manifested in the serious offences he committed against Ms M in 2007 and which he was highly likely to have had in 1999) was not the inclination or predisposition of an honest or decent person.
484 However, in this appeal, it is unnecessary to decide, and it is undesirable in the absence of submissions from the parties to express an opinion on, whether the inclination or predisposition, in combination with the fact that the out‑of‑court statements were made by the appellant in the context of a police interview in connection with Ms Dodd’s disappearance, was capable of casting doubt on the credibility and reliability of the appellant’s assertions to the effect that he had visited numerous businesses in Moora on the morning in question and, consequently, he did not leave Moora until after 12.00 noon and, therefore, he did not have the opportunity to encounter Ms Dodd at the material time on North West Road.
Ground 6: its merits
485 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 (492 – 493); Zaburoni v The Queen; GAX v The Queen.
486 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.
487 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].
488 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.
489 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; SKA [13].
490 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: M (494 ‑ 495). See also Hillier [20]; Fitzgerald v The Queen; Baden‑Clay [66].
491 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].
492 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; GAX [25].
493 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.
For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant’s state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].
494 It is true that there was no direct evidence as to the appellant’s involvement in Ms Dodd’s disappearance. I accept that it was not open to the trial judge to find the appellant guilty unless no explanation except guilt was reasonably compatible with the circumstances.
495 The State’s circumstantial case relied upon, amongst other things, the allegation that one of Ms Dodd’s hairs had been found in Mr McConnell’s vehicle. The hair in question, which was labelled hair 13, was located by Ms Horner on 27 September 2013 when she examined material, including 93 hairs and fibres, that police had collected on 6 August 1999 when they vacuumed the passenger footwell of the vehicle. Hair 13 was suitable for nuclear DNA analysis. The hair was 18 mm in length. Ms Horner said hair 13 was a human hair that was black, straight and coarse [611].
496 At the trial, expert evidence in relation to hair 13 was given by Mr Andrew McDonald, Dr Dadna Hartman and Dr Michael Wallbank (who were State witnesses) and by Professor Alan Jamieson (who was a defence witness).
497 The trial judge reviewed the evidence about hair 13 and arrived at these conclusions [757] – [760]:
I am more inclined to accept Mr McDonald’s opinion as he is regularly involved in producing DNA profiles and using LikeLTD to interpret them. Professor Jamieson’s experience is in relation to reviewing the results of others work. However I accept that both Mr McDonald and Professor Jamieson are experienced and qualified to give evidence in this area and that both of their opinions deserve to be given weight. In these circumstances I am unable to conclude that it is more likely that the nuDNA profile obtained from hair 13 is that of Ms Dodd with drop in than to be that of a single source male contributor. I think it is possible that it is Ms Dodd’s hair but I am not persuaded that it is her hair.
In relation to the mtDNA analysis and the use of the EMPOP database, the experts are in agreement that the haplotype obtained from hair 13 is the same as Ms Dodd’s and Mrs Dodd’s haplotype.
Dr Hartman’s and Dr Wallbank’s use of EMPOP and the Australian haplotypes gives me some idea of the frequency of this haplotype amongst the population in the United Kingdom and Australia. However it is only a very rough indication. The evidence shows that hair 13 could be Ms Dodd’s hair but it does not persuade me that it is. This is the case even when the mtDNA and nuDNA evidence is considered together.
Another relevant matter which I have taken into account is Ms Horner’s description of hair 13. She described it as black (ts 1896). Ms Dodd had dark brown hair. Ms Horner’s description of its colour does not exclude hair 13 from being Ms Dodd’s hair but it is one matter which suggests that it may not be her hair.
498 I am not persuaded, on my review of the evidence, that hair 13 belonged to Ms Dodd. I do not accept the State’s submission that this court should set aside her Honour’s conclusion that she was not persuaded that hair 13 belonged to Ms Dodd and substitute a finding that hair 13 did in fact belong to Ms Dodd. Her Honour was entitled to arrive at that conclusion and I am not satisfied that she was wrong. Her Honour said she was ‘more inclined’ to accept Mr McDonald’s opinion than Professor Jamieson’s opinion [757]. However, her Honour decided that weight should be given to the opinions of both of them. It was in those circumstances that her Honour was unable to conclude that it was more likely that the DNA profile obtained from hair 13 was that of Ms Dodd. I am not persuaded that, having regard to the record, this court should accept Mr McDonald’s views to the exclusion of Professor Jamieson’s views where they are inconsistent or in conflict. I am not persuaded from the nuclear DNA and the mitochondrial DNA results, in combination, and from all of the other circumstances concerning the recovery of hair 13, that hair 13 belonged to Ms Dodd. Her Honour enjoyed an advantage which this court does not have in that she saw and heard the expert witnesses give their evidence. It was not suggested (and it could not reasonably have been suggested) that her Honour misused her advantage.
499 Subject to my reasons and conclusions in relation to ground 3, for the reasons I have given in relation to grounds of appeal 1, 2, 2A, 4 and 5, it was open to her Honour:
(a) to be satisfied beyond reasonable doubt that the appellant’s alleged alibi was false;
(b) to find that the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at ‘about 12.05 pm’;
(c) to find that the appellant had the propensity referred to at [320] above; and
(d) to be satisfied beyond reasonable doubt that the earring found on the car seat cover belonged to Ms Dodd.
500 As to the appellant’s contention that there was an ‘unrealistically short timeframe’ for the various acts which must have occurred between the appellant encountering Ms Dodd and the appellant arriving at the Badgingarra roadhouse by 1.36 pm, it is not apparent that the relevant timeframe was ‘unrealistically short’. Her Honour concluded that it would have taken ‘very little time’ for the appellant to have killed Ms Dodd [441]. Her Honour elaborated:
If [the appellant] had attacked her and she had resisted, it is quite possible that he could have injured her in order to subdue her and thereby have caused her death within a short period of time. However it is not logical that this could have occurred on North West Road. He certainly could not have concealed her body on the road. [The appellant] would have had to drive somewhere more secluded in order to do this. One such place he could have attacked her would have been on his property. He may also have concealed her body there. However [the appellant] was familiar with the area, having lived there for a number of years, and it is possible that he may have driven elsewhere. He then needed to have had time to leave her body somewhere it could not be found, leave his shopping in his house, write a note to Mr McConnell, pack a few belongings, collect his dog and ride to the roadhouse by 1.36 pm.
At 80 km per hour it would take two to three minutes to drive to his home, depending on where exactly he picked up Ms Dodd, and another six minutes to ride from his home to the roadhouse. If he did not take Ms Dodd to any other place, this would give him about one hour and 20 minutes to kill Ms Dodd, conceal her body and complete his other tasks, which I have described. If he had driven to some other location this time would be shortened but in either case, [the appellant] would have had sufficient time to kill and conceal Ms Dodd’s body and complete his other tasks [441] ‑ [442].
501 There are two flaws in the appellant’s contention that he needed to deal with the shopping he had bought in Moora earlier on 29 July 1999. First, the appellant did not ‘deal with’ the meat which he had obtained from DJs Butcher. Rather, the appellant left a note requesting Mr McConnell to separate the meat. Secondly, although Mr McConnell’s statement dated 27 August 1999 referred to the note requesting him to separate the meat, his statement was silent on whether groceries had been purchased, the quantity of any such groceries and whether groceries had or had not been put away by the appellant.
502 In my opinion, her Honour’s findings and reasoning on this issue are not attended by any material error.
503 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.
504 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.
505 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.
506 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.
507 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.
508 Ground 6 has not been made out.
The outcome of the appeal
509 I would grant leave to appeal on each of the grounds of appeal. The appeal should be allowed on the basis of ground 3 and the judgment of conviction set aside.
Should this court enter a judgment of acquittal or order a new trial?
510 I turn to consider whether this court should enter a judgment of acquittal or order a new trial.
511 Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender. It reads relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must –
(a) order a trial or a new trial; or
(b) enter a judgment of acquittal of offence A; or
(c) if –
(i) the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
512 In Director of Public Prosecutions (Nauru) v Fowler, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character. Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account ‘any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused’.
513 In King v The Queen, Dawson J reiterated that the discretion to order a new trial should not be exercised ‘when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective’. His Honour noted, in particular, that ‘the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes ((1948) 77 CLR 511, at p 518)’. See, to similar effect, the observations of McHugh J in Jiminez v The Queen, where his Honour held that a new trial should not be ordered because ‘a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial’. See also Parker v The Queen.
514 In R v Taufahema, Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen that:
(a) there is a public interest in the due prosecution and conviction of offenders; and
(b) it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
515 In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R v Wilkes, and by Dawson J in King (433), to ‘a new case’ must be ‘to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence’ [35] – [36].
516 Gleeson CJ and Callinan J also said in Taufahema that the general rule that ‘litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applied with at least as much force to the prosecution as to the defence’ [37]. Their Honours explained [37]:
The considerations identified in Crampton v The Queen ((2000) 206 CLR 161 at 172 – 173 [15] – [20]) as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.
517 Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that ‘the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial’ [67].
518 I am satisfied, for the following reasons, that in the present case a judgment of acquittal should not be entered and that a new trial should be ordered.
519 First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a fact‑finding tribunal.
520 Secondly, the miscarriage of justice at the appellant’s trial occurred as a result of errors of law in the trial judge’s reasoning.
521 Thirdly, the miscarriage of justice is not attributable to the manner in which the prosecutor ran or did not run the State’s case.
522 Fourthly, there is no apparent defect in the State’s case. The admissible evidence adduced at the original trial was sufficiently cogent to support a conviction on the charged offence.
523 Fifthly, there are no circumstances that render it unjust to the appellant to make him stand trial again.
Conclusion
524 As I have mentioned, leave to appeal should be granted on each of the grounds of appeal, the appeal should be allowed on the basis of ground 3 and the judgment of conviction should be set aside. A new trial should be ordered on the charge of murder.

MAZZA JA:

525 I have had the considerable advantage of reading in draft the separate reasons of Buss P and Beech JA. For the reasons given by Beech JA, I agree that grounds 1, 2 and 2A have not been made out. Save for my agreement with Beech JA’s conclusion that the State did not have to prove, as a separate intermediate fact or circumstance, as part of its circumstantial case that the appellant’s alleged alibi was false, I also agree with Buss P’s reasons on grounds 1, 2 and 2A. I agree with Beech JA’s reasons on ground 3. I agree with Buss P’s reasons on grounds 4, 5 and 6. In relation to ground 6, I also agree with Beech JA’s observations as to an alternative path of reasoning to guilt which was open on the evidence adduced at trial. The orders which should be made are those proposed by Buss P at [8] and [524] of his reasons.

BEECH JA:

Introduction
526 The appellant was charged with the wilful murder, on or about 29 July 1999, of Hayley Marie Stephenson (Ms Dodd). He was charged on 27 November 2013, tried, by judge alone, from 9 October 2017 to 24 November 2017, and convicted of murder. The trial judge published written reasons for her decision.
527 The appellant challenges his conviction for murder, advancing seven grounds of appeal.
528 I agree with Buss P, for the reasons he gives, that grounds 4 and 5 have not been made out. I also agree that grounds 1, 2, 2A and 6 are not established; my reasons regarding those grounds, which substantially overlap with Buss P’s reasons, and in some parts adopt them, are set out below. For the reasons given below, like Buss P, I would uphold ground 3 and the appeal. Consequently, I would set aside the appellant’s conviction and order a retrial.

529 Substantial parts of the judge’s findings and reasoning have been outlined in Buss P’s reasons. Nevertheless, I think it is worthwhile comprehensively outlining her Honour’s reasons to assist in understanding the logic with which the reasons are constructed. That is because the grounds of appeal and submissions require close attention to the interrelationship of several aspects of the judge’s reasoning.
Primary judge’s reasons
Modified Longman warning
530 The primary judge gave herself a modified Longman warning in the following terms:
In deciding whether the State has proved a charge against the accused, I must take into account that Ms Dodd disappeared over 18 years ago. Over time, memories fade and the long delay between her disappearance and the trial means that there was considerable opportunity for witnesses to be mistaken in their memories of relevant events. Sometimes the passage of time plays tricks on memories. In this case, very few witnesses were alleged to have given evidence inconsistent with their earlier written statements.
It is also a matter of common experience that the longer a witness believes something to have happened or that they saw something the more convinced they may become that it has happened or that they saw it. This can be so even if they were mistaken in their original recollection.
These issues are particularly relevant to witnesses’ recollections of the times they commenced or finished their journeys on North West Road and where and when they believe they saw Ms Dodd or the accused on or after 29 July 1999.
Although the accused was interviewed by the police in 1999, he was not charged with wilful murder until after the EROI in November 2013. The longer the time between the disappearance of Ms Dodd and the accused being charged, the more difficult it may be for him to answer the allegation that he was responsible for her disappearance. For example, time may have deprived him of the opportunity of obtaining evidence to support the alibi.
If he had been charged soon after July 1999 he would have been able to get more evidence from businesses in Moora and he may have had some documents, such as till receipts, to prove when he was in Moora. It is likely that the seat cover would have been examined earlier.
As a result of delay, the accused has been placed at a real disadvantage in putting forward his case and testing the State’s case. I take these matters into account in his favour when deciding whether the State has proved a charge against him. I must scrutinise the evidence with great care, and not reach a conclusion of guilt on a charge unless I am satisfied beyond reasonable doubt of his guilt, after taking the forensic disadvantage into account.
State and defence cases
531 The State submitted that the judge should be satisfied beyond reasonable doubt that the appellant encountered Ms Dodd at about midday on 29 July 1999, picked her up, killed her and disposed of her body, as a matter of inference from the following circumstances:
(1) when she disappeared, Ms Dodd was wearing a pair of earrings, one of which was later found in the vehicle that the accused was driving on 29 July 1999;
(2) one of Ms Dodd’s hairs was later found in the same vehicle;
(3) the accused was alone in the vehicle when he had the opportunity to encounter Ms Dodd on North West Road;
(4) there have been no reliable sightings of Ms Dodd since the accused had the opportunity to encounter her; and
(5) the accused had a propensity to pick up a lone female hitchhiker and to rape them, and in doing so to use extreme violence.
532 At trial, the appellant contended that he was not guilty because of the alibi that he was in Moora at the time Ms Dodd disappeared. He further contended that, in any event, the judge should not conclude:
(1) that he had the opportunity to encounter Ms Dodd;
(2) that the earring and hair belonged to Ms Dodd; and
(3) that the propensity evidence was probative of his guilt.
Background facts
533 In July 1999, the appellant lived on a block on the southeast corner of North West Road and McNamara Road, about 7.6 km from Badgingarra and 50.7 km from Moora along North West Road.
534 Mr McConnell’s vehicle, driven by the appellant on 29 July 1999, was a very old, white 1973 Holden HQ utility, or ‘ute’. The appellant, who owned the ute from 1998 to June 1999, regularly drove the ute to Moora.
535 Ms Dodd was small in stature, being not taller than about 5 foot 1, and somewhere around 40 to 50 kg.
536 Ms Dodd purchased new earrings in Dongara on 27 July 1999. Her travel partner, Ms Frederickson, drew a detailed picture of these earrings on 2 August 1999.
537 The judge found that, prior to 29 July 1999, Ms Dodd was planning to visit the Seldom Seen farm on the southern side of North West Road, 24.6 km from Badgingarra and 33.7 km from Moora. She had told Ms Frederickson, as much. On 28 July 1999, she telephoned the owner of Seldom Seen farm and told him that she was planning to visit on 29 or 30 July 1999.
Ms Dodd’s movements on 29 July 1999
538 Sometime in the morning, Ms Dodd left Ms Frederickson in Dongara to go to Seldom Seen farm via Badgingarra. When she did, Ms Dodd was wearing her new earrings. Ms Dodd got a lift with Mr Donald Spry, who was driving a truck to Badgingarra. Mr Spry dropped her off there at close to 10.30 am, which time can be identified because she made a phone call at 10.35 am. At 10.38 am, Ms Dodd purchased water and chips. She then started walking along Meagher Drive towards North West Road, not hitchhiking.
539 Mrs Margaret Johnson stopped and offered Ms Dodd a lift, which she accepted. After a conversation between them, Mrs Johnson dropped Ms Dodd off near the corner of North West Road and Winjardie Road. That was at about 11.00 am.
540 Mr and Mrs Weaver saw Ms Dodd being dropped off at about 11.00 am on their way to Badgingarra Primary School.
541 Mr Skipworth also saw Ms Dodd at the corner of North West Road and Winjardie Road at about 11.00 am.
542 Mr Moltoni was driving from Mr Streppel’s farm to Jurien Bay. He saw her at about 11.05 am to 11.10 am.
543 Shortly afterwards, on their return journey from Badgingarra Primary School, the Weavers saw Ms Dodd again, walking along North West Road towards Moora. The judge found that, after this, Ms Dodd continued walking in an easterly direction along North West Road.
544 Mr Giles saw Ms Dodd nearby, close to the intersection of McNamara Road and North West Road, between 11.00 am and 11.30 am.
545 Mr Koeberle saw Ms Dodd just west of the intersection of Badgingarra Road and North West Road at approximately 11.20 am.
546 Ms Purser saw Ms Dodd on North West Road, east of its intersection with Badingarra Road, between 11.15 am and 11.20 am. Ms Dodd was walking towards Moora.
547 Mr Cheek saw Ms Dodd on North West Road around 11.00 am to 11.30 am. Mr Jankowski saw Ms Dodd at about 11.20 am to 11.30 am. The judge found that it was likely that they saw her close to the intersection with Badgingarra Road.
548 Mr Hale saw Ms Dodd on the 6.7 km stretch of North West Road between Badgingarra Road and Wathingarra Road at about 11.30 am.
549 Driving east on North West Road towards Moora, Mr Stribley saw Ms Dodd near the location of the 961 marker at around 11.40 am. Via North West Road, the 961 marker is 48.7 km west of Moora and 1.6 km east of the junction with Badgingarra Road. Mr Stribley also gave evidence that he saw three cars on his way to Moora. The first was an older style dirty white farm ute, which the judge said was possibly Mr McConnell’s ute. The second was a signed Telstra van that he saw 5 to 10 minutes later; Mr Stribley’s evidence was that this was a transit van but also gave a HiLux as an example of such a van. Mr Stribley could not recall the third vehicle but it was not a truck or van.
550 Mr Bruce Smith and Mr Burnett were Telstra employees who worked together in the area that day. In evidence-in-chief, Mr Bruce Smith testified that he saw a young girl in a location a lot further east after about 1.15 pm to 1.20 pm; in cross-examination, he gave a very different account of where he saw the girl. Mr Burnett gave evidence that he did not recall seeing anyone on the road that day. The judge said:
Mr [Bruce] Smith and Mr Burnett were both apparently honest witnesses trying to do their best to recall what they had seen and done on and after 29 July 1999. However Mr Burnett’s evidence was more credible than Mr Smith’s evidence in that it was internally consistent and detailed. He also was much more familiar with the area through which he travelled on 29 July 1999.
It makes little sense for Ms Dodd to have been on North West Road at the intersection with Coalara Road at around 1.30 pm, looking as if she wanted a lift, when she would have had to pass the Seldom Seen farm to get to that spot. There was no way she could have walked to that intersection in the time between when she had been seen near to the location of the 961 marker and 1.30 pm. The intersection is 15 km from where Mr Stribley saw her. If she was walking, it would have taken Ms Dodd more than three hours to get to that location. There is no evidence that anyone gave Ms Dodd a lift to that point. In short, apart from Mr [Bruce] Smith’s apparent honesty, there is nothing to support his evidence that he saw a young girl there. Given the lack of support for his evidence, it does not cause me to believe that Ms Dodd somehow made it to that point on North West Road.
551 Various witnesses who drove on North West Road at a potentially relevant time, including Mr Streppel, Mr Peacock, Mrs Crouch and Mr Barrett, gave evidence that they did not see Ms Dodd.
552 Mr Streppel, at a very rough estimate, would have passed the location of the 961 marker at 12.10 pm to 12.15 pm. As he was on a motorbike keeping a careful lookout, the judge put particular weight on his failure to see Ms Dodd.
553 That morning, Mr Peacock travelled from his farm on Wathingarra Road into Badgingarra and back in a rush. That drive takes about 17 minutes, at 90 km per hour, one way. He gave 11.30 am as a ‘rubbery’ estimate of the time he left his farm. It would have taken him 5 to 10 minutes to reach the junction of Wathingarra Road and North West Road. His evidence was that, from there, he did not recall seeing any people on North West Road in the 15 km into Badgingarra. The judge found that Mr Peacock was at Rural Traders, in Badgingarra, at about 12.20 pm and left around that time. The judge found that, on his return journey, Mr Peacock would have been on North West Road in the area of the location of the 961 marker at about 12.40 pm. The judge said:
It is more difficult for me to ascertain when Mr Peacock was in the area of the location of the 961 marker when he was driving into Badgingarra as his times do not add up. It seems he must have either left his home later than he thinks or spent longer in Rural Traders than he thinks or a combination of both. It is also entirely possible that as Mr Peacock was rushing and preoccupied with getting his chores done, he was not being observant as he drove into and out of Badgingarra.
The most I can conclude is that Mr Peacock’s evidence is consistent with Ms Dodd not being on the side of North West Road anywhere between Badgingarra Roadhouse and Wathingarra Road when Mr Peacock drove into Badgingarra sometime between 11.30 am and 12.10 pm and at around 12.40 pm. His evidence does not cause me to doubt the findings I have made about Ms Dodd’s movements.
554 In respect of Mrs Crouch, the judge said:
[228] Another person who travelled on North West Road but did not see Ms Dodd is Mrs Robyn Crouch. Later in my reasons I will describe her evidence relating to her seeing the accused. Her evidence relating to Ms Dodd is that on 29 July 1999, Mrs Crouch drove from her farm on Badgingarra Road to Moora along North West Road at about 9.30 am and returned at about 11.45 am. She arrived home at about 12.30 pm. She travelled at about 110 km per hour on North West Road. In respect of the return journey, she would have been at about the location of the 961 marker at around 12.10 pm – 12.15 pm. She did not see Ms Dodd. Mrs Crouch’s evidence is consistent with Ms Dodd not being on North West Road, east of Badgingarra Road, at that time. (footnotes omitted)
555 Mr Barrett, another Telstra employee, was travelling westward, in a Nissan Patrol wagon with Telstra markings, from Moora to Badgingarra via North West Road. He was rushing on his way to his final destination of Jurien Bay. He estimated that he left the depot in Moora at the end of Roberts Street at around 11.30 am. He estimated that he arrived at Jurien Bay at around 12.45 pm and that it only took him about 30 minutes to drive from Moora to the Brand Highway. The judge calculated that, if this were the case, he would have had to have travelled at an average speed of 96 km per hour for the entire journey and 116 km per hour from Moora to the Brand Highway. The judge found that he was on North West Road between about 11.40 am to 12.10 pm. His evidence was that he ‘definitely’ did not see any person on North West Road (and did not recall seeing any vehicles). The judge said:
[236] In accordance with the findings which I make later in these reasons about the accused’s movements, Mr Barrett and the accused may have left Moora around the same time, Mr Barrett may have left before the accused or he may have left after the accused.
[237] If Mr Barrett had left the depot in Moora even five minutes after the accused drove out of Moora along Dandaragan Street, it does not seem that he would have gained sufficient distance on the accused’s vehicle by the location of the 961 marker. The accused would have been able to stop, pick up Ms Dodd and drive on without either Ms Dodd or the accused being seen by Mr Barrett. This would explain why Mr Barrett did not see Ms Dodd and it is consistent with Mr Stribley’s evidence that he saw a ute and then a Telstra vehicle driving west on North West Road, after he saw Ms Dodd. This timing and sequence of events seems to be very reasonable and possible.
[238] If Mr Barrett had left Moora just a few minutes after the accused it seems that he would have gained sufficient time on Mr McConnell’s ute to reach and overtake it before the area of the of the [sic] location of the 961 marker. Mr Barrett’s statement made on 12 August 1999 says that he may have passed some cars but he cannot be sure. Consequently, this appears to be a less likely scenario but still possible.
[239] If Mr Barrett left Moora before the accused, the accused is unlikely to have gained time on Mr Barrett. If Mr Barrett left Moora before the accused or overtook Mr McConnell’s ute, Mr Barrett would have past the area of the location of the 961 marker before the accused reached that area. If that was the timing and sequence of events, it raises the issue of whether Ms Dodd was still on North West Road when Mr Barrett and the accused drove past the area of the location of the 961 marker. It would be possible that Mr Barrett did not see Ms Dodd because she was not on the road. It would also be possible that she was on the road but he did not see her due to his preoccupation with getting to Jurien Bay. Also, North West Road in that area is undulating. Depending on where on the road Ms Dodd was there may not have been a lot of time for Mr Barrett to see her. (footnotes omitted)
556 The judge came to the following conclusions about Ms Dodd’s movements:
[318] There is no evidence that Ms Dodd got a lift with anyone other than Mr Spry and Mrs Johnson and, by inference, the person who took her away from North West Road. I accept that the last reliable sighting of Ms Dodd was made by Mr Stribley at the location of the 961 marker at about 11.40 am. By then, Ms Dodd had walked a total of 3 km east from Winjardie Road where Mrs Johnson dropped her off. It is likely that she continued to walk. She had a further 13 km to travel to get to the Seldom Seen farm. No witness who travelled on North West Road after about 11.40 am sighted Ms Dodd or anyone else in that area. There were no witnesses who claimed to have been in the area of the location 961 marker from around 11.40 am ‑ 12.10 pm, apart from Mr Peacock and Mr Barrett. I have given reasons why the failure of Mr Peacock and Mr Barrett to see Ms Dodd is not decisive.
[319] There are witnesses who claimed to have driven along North West Road at around the location of the 961 marker from about 12.10 pm onwards. None of them saw Ms Dodd, other than Mr Bruce Smith and Mr Davies, whose evidence I do not accept.
[320] In making these findings and assessing the evidence of the witnesses who travelled on North West Road on 29 July 1999, I have taken into account that most of the witnesses could not be precise about times and locations. However the weight of all the evidence permits me to make certain findings.
[321] I find that Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road, between about 11.40 am and 12.10 pm on 29 July 1999. There have been no reliable sightings of her since then, despite extensive searches. Entirely contrary to her past habits, she has not contacted her parents, family or friends. Ms Dodd’s bank account and her Centrelink file have not been used since 29 July 1999. No one using her name or her identity has been recorded as leaving Australia. It is a sad, but inescapable, conclusion that she is dead.
[322] Ms Dodd had no means of leaving North West Road by herself. Indeed, she was intent on following it until she got to the Seldom Seen farm. It was her intention to hitchhike to the Seldom Seen farm. Given that she disappeared from the road and never arrived at her destination, another person must have picked her up from the road. In order to do so, this person must have had a vehicle of some description. It is a further inescapable conclusion that whoever picked her up was also responsible for her death. (footnotes omitted)
557 Thus, the judge found that the last reliable sighting of Ms Dodd was at about 11.40 am at the location of the 961 marker and that she disappeared between then and 12.10 pm. The judge also found that Ms Dodd was dead, was picked up by someone while she was walking along the road and that whoever picked her up was responsible for her death.
The appellant’s movements on 29 July 1999
558 The appellant gave a written statement to police on 3 August 1999, and then a typewritten version of that statement, with a few additions, on 5 August 1999. Later, on 27 November 2013, he participated in an electronically recorded record of interview (the EROI). He did not give evidence at the trial.
559 In setting out ‘[g]eneral legal principles’ towards the beginning of her Honour’s reasons, the judge said the following as to the appellant’s out of court statements:
I may use the statements and EROI for or against the accused. It is up to me to decide which part of the statement and EROI I accept and which parts I reject. I may take into account that the accused’s statements and EROI made out of court were not made on oath or affirmation. As a consequence I may give his exculpatory statements less weight.
Her Honour then said the following as to the appellant’s alibi:
The accused told the police that he was in Moora at the time that the State says that Ms Dodd disappeared from North West Road (the alibi). By saying this, the accused does not undertake to prove that he was in Moora or to prove any other fact. The onus remains on the State to prove that the accused committed an offence. That means that it must eliminate any reasonable possibility that the alibi is true.
560 In his statement given voluntarily while not a suspect, as the judge observed, on 3 August 1999, the appellant described what he did on 29 July 1999. Its contents are set out in Buss P’s reasons and may be summarised as follows.
(a) When he arrived in Moora, a little after 10.00 am, he withdrew some money from Bankwest, taking 10 minutes at most.
(b) He then went to the video store for 15 or 20 minutes, where he exchanged ten weekly videos for another ten, spending some time looking for videos he had not already seen.
(c) He then went to the post office where he paid for a postal order to pay a fine and obtained a tax pack.
(d) He then went to the newsagency to get a second tax pack; he was not there long.
(e) He then went back to his car and drove to the supermarket and the butcher, across the railway line. At the supermarket, he generally spent about $150 to last about two weeks. At the butcher, he bought about $50 worth of meat to last about two weeks. He did not know how long this shopping took him.
(f) Finally, he went to the bakery, where he bought a couple of pies for lunch. He said: ‘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.’
He drove home via Dandaragan Road and North West Road. The trip ‘takes [him] just over half an hour’; it would not take more than 45 minutes. Mr McConnell’s ute did not do more than 80 km per hour. He got home around 1 pm. The appellant said that he did not see or pick up anyone who was hitchhiking. He also said that if he had seen anyone hitchhiking, it would have been unusual and he would have stopped.
561 The parties agreed at trial that the appellant paid an account of $14.40 at the Badgingarra roadhouse at 1.36 pm.
562 In his typewritten statement of 5 August 1999, the appellant added that Mr McConnell’s ute overheated if it was driven above 80 km per hour.
563 The judge stated:
[340] The question for me to answer is whether the State has satisfied me that the accused was on North West Road east of the location of the 961 marker between about 11.40 am and 12.10 pm and had the opportunity to pick up Ms Dodd. The accused says that he was in Moora between these times and thus did not have the opportunity to pick up Ms Dodd and kill her. I remind myself that there is no onus on the accused to prove that he did not have the opportunity to pick up Ms Dodd and to murder her. The onus of proof remains on the State at all times.
564 The judge then detailed evidence relevant to the appellant’s movements on 29 July 1999, including the following.
565 Mrs Robyn Crouch drove from her farm, near the corner of Badgingarra Road and North West Road, to Moora. On the way, she overtook the appellant, whom she knew, in Mr McConnell’s ute, on his way towards Moora. She estimated that the ute was travelling at 70 km per hour. After she arrived in Moora, which was likely to be between 10.00 am and 10.10 am, she saw and spoke to the appellant there for about five minutes. The judge found that this would have taken place shortly after 10.35 am, after the appellant had been to the Post Office. Mrs Crouch drove back to the farm from Moora. She estimated that she left at about 11.45 am and got home at 12.30 pm. She did not see the appellant on the way. The judge said:
[363] … Mrs Crouch testified that she left Moora at about 11.45 am and that she arrived back at the farm at 12.30 pm. If Mrs Crouch left Moora at about 11.45 am and the accused had left Moora at any time between 12.00 pm and 12.10 pm, she should have overtaken the accused in Mr McConnell’s ute by the time she got to Badgingarra Road, which is where she turned off North West Road. …
[364] Mrs Crouch was a very impressive witness. She appeared to be intelligent, perceptive and to have a good recollection of events. I accept her evidence on all counts, except that she drove at 110 km per hour between the farm and Moora or that it took her 45 minutes to do so. I also have some difficulty accepting her estimation of the time that she left Moora. Adding all the times that she said it took her to do her chores in Moora to the time on the banking receipt, she should have been ready to leave Moora closer to 11.30 am, than 11.45 am. Unfortunately, she was not questioned about this time discrepancy.
566 Although Mr Dunn, who had been working at the video store, gave evidence that he saw the appellant in the video store at a time between 10.30 and 11.00 am, the judge found that the appellant was there ‘around 10.20 am – 10.30 am’. In so finding, the judge relied on her view that it was unlikely that the appellant did other shopping before going to the video store and Australia Post, and the known timing of the appellant’s visit to the Australia Post store.
567 It was known, from documents tendered at trial, including Australia Post records, that the appellant purchased a money order at Australia Post at 10.35 am.
568 The judge found that the process of the appellant collecting his car and driving to Supa Valu would not have taken more than five minutes. After considering the till rolls at Supa Valu, the judge identified only one transaction of approximately the right magnitude (between $100 and $200) to have been the appellant, which occurred at a time between 11.02 am and 11.06 am. Her Honour observed that if that were his transaction ($142.15), it would mean that his grocery shopping took him about 20 minutes, which did not seem unreasonable. The judge eliminated other transactions of approximately the right magnitude on the basis that those after 12.20 pm were too late, for reasons the judge explained, and the one before 10.30 am was too early.
569 The judge concluded, after consideration of evidence concerning the till roll at the butcher, DJs Quality Meats, that she could not determine what transaction related to the appellant. The judge gave detailed consideration to the evidence of Mr Greay, the butcher at DJs Quality Meats. Her Honour concluded that Mr Greay’s evidence and the till roll could not be relied on as to timing. However, she was satisfied, by other evidence, that the appellant went to the butcher on 29 July 1999, that this was likely to have been at about 11.10 am, and that he would have concluded his purchase by 11.25 am. Her Honour’s findings as to this timing is not explained. However, the 11.10 am time appears to be based on the earlier conclusion as to when the appellant left Supa Valu. The 11.25 am time appears to be based on Mr Greay’s estimate of the likely time involved in the appellant’s purchase at the butcher that day and of the maximum time it took to prepare the appellant’s order generally, being 15 minutes.
570 The judge also gave detailed consideration to the evidence concerning the till records at the bakery, Pioneer Bakery. The judge was satisfied that there was only one sale on 29 July 1999 for two pies. The judge appeared to accept Ms Russell’s evidence that, as a broad estimate, the sale took place between 10.30 am and 11.30 am.
571 The judge considered evidence concerning damage to the indicator lever of Mr McConnell’s ute. She concluded that it was probable that the indicator lever was broken after the appellant had used Mr McConnell’s ute on 29 July 1999. She observed that that was not a matter of great weight, as there were other ways in which the indicator lever could have been broken, other than during the course of a struggle with Ms Dodd. The judge observed that, nevertheless, it was a matter which she took into account in her deliberations.
Conclusions about the appellant’s movements on 29 July 1999
572 The judge’s conclusions about the appellant’s movements on 29 July 1999 were expressed as follows:
[433] I am satisfied that the accused drove to Moora in Mr McConnell’s ute on 29 July 1999, visited various retailers and conducted transactions with them. He then drove back to his home. The matter for me to determine is whether the timing of the accused’s movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm.
[434] My finding in this regard is that if I accept that the accused transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am. I am satisfied that the alibi is false, in that he did not leave Moora after 12.00 pm. There is no reasonable possibility that the alibi is true.
[435] If he left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area at around 12.07 pm. If, after she was last seen near the location of the 961 marker at around 11.40 am Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, the accused would have been in the area where Ms Dodd was on North West Road at about 12.05 pm.
[436] I find that the accused had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm. As the State acknowledges, the timeframe for him to encounter and pick up Ms Dodd is ‘extremely tight’. However that is to be expected. If the accused is responsible for picking up Ms Dodd, then there will be no evidence of her being on North West Road after he drove past the area where she was on the road, and given that the encounter was opportunistic as he drove along the road, there will be no evidence that he had the opportunity to pick her up apart from that limited time he would have been driving past her location.
[437] If the accused did not go to the Bakery or if he finished his business in Moora before 11.30 am, which is quite possible, he had the opportunity to encounter Ms Dodd between 11.45 am and 12.05 pm.
[438] Given the accused’s conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so.
[439] Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police. (emphasis added)
Many of these conclusions are challenged by grounds 1, 2 and 3.
573 After so concluding, the judge turned to a further issue: whether, if the appellant did encounter Ms Dodd on North West Road, he had sufficient time to kill her and dispose of her body between then and 1.36 pm, when it was agreed he was at the Badgingarra Roadhouse. Her Honour said:
I am of the opinion that it would have taken very little time for the accused to have killed Ms Dodd. If he had attacked her and she had resisted, it is quite possible that he could have injured her in order to subdue her and thereby have caused her death within a short period of time. However it is not logical that this could have occurred on North West Road. He certainly could not have concealed her body on the road. The accused would have had to drive somewhere more secluded in order to do this. One such place he could have attacked her would have been on his property. He may also have concealed her body there. However the accused was familiar with the area, having lived there for a number of years, and it is possible that he may have driven elsewhere. He then needed to have had time to leave her body somewhere it could not be found, leave his shopping in his house, write a note to Mr McConnell, pack a few belongings, collect his dog and ride to the roadhouse by 1.36 pm.
At 80 km per hour it would take two to three minutes to drive to his home, depending on where exactly he picked up Ms Dodd, and another six minutes to ride from his home to the roadhouse. If he did not take Ms Dodd to any other place, this would give him about one hour and 20 minutes to kill Ms Dodd, conceal her body and complete his other tasks, which I have described. If he had driven to some other location this time would be shortened but in either case, the accused would have had sufficient time to kill and conceal Ms Dodd’s body and complete his other tasks.
Police investigation
574 The primary judge outlined various aspects of the police investigation in considerable detail. The issues on appeal do not require detailed attention to these aspects.
575 On 6 August 1999, Mr McConnell’s ute was examined. Photographs and a video were taken of the examination. The judge viewed the video and photographs. The judge observed that it was not possible to see all of the seat cover in either the photographs or video. Among the areas not visible was the area where an earring was first seen in 2013 by Ms Horner, a medical scientist at PathWest.
576 The officers involved gave evidence that they did not remember how they removed and folded the seat cover. The judge accepted their evidence that they did not, and the reasons that they did not, carefully examine the seat cover in situ.
577 The car seat cover was not recorded on the original exhibit list or on the document management system, PTS. There was nothing fraudulent in that.
578 The judge found that reference to the car seat cover was added in blue pen to the exhibit list, on 6 August 1999, and into PTS, by no later than 13 August 1999.
579 Subsequently, the exhibits were transferred from PTS onto a new document management system, referred to as IMS. On 8 August 2011, Sergeant Rowe commenced converting the electronic record of the 14 items in the ute, from PTS onto IMS. The judge considered and rejected the defence theory that Detective Sergeant Bethell planted the earring. The judge catalogued a number of problems with that theory. Her Honour was satisfied that the earring was not planted. That finding is not challenged on appeal.
580 When the seat cover was examined on 5 September 2013, Ms Horner found an earring. She took photographs of the earring.
581 The earring is nearly identical to that described and drawn by Ms Frederickson.
582 The judge evaluated, in considerable detail, the evidence concerning hair 13, which was one of the hairs retrieved from Mr McConnell’s ute and which was submitted for DNA testing. The judge referred to the competing expert evidence of Mr McDonald and Professor Jamieson. Her Honour found that she was unable to conclude that it was more likely that the DNA profile from hair 13 was that of Ms Dodd. While it was possible that it was Ms Dodd’s hair, her Honour was not persuaded that it was her hair.
Propensity evidence of Ms M
583 The judge outlined the undisputed evidence of Ms M. Her evidence was to the following effect.
584 In the early hours of 1 June 2007, while she was intoxicated, Ms M was walking on a road near Atherton, hoping to get a lift from a passing truck. The appellant was driving a white van, and pulled up next to her. She accepted his offer of a lift.
585 They stopped at his home. After a while she said she wanted to go home. He said he would not give her a lift. She then left. The appellant followed her, grabbing her with large piece of wood in his hand. The appellant then subjected her to numerous various forms of sexual assaults. He also hit her, on the head, more than once, with the large piece of wood, dragged her by her hair and slapped her.
Conclusions about the propensity evidence
586 The judge came to the following conclusions about the propensity evidence:
The accused submits that there are significant differences between the accused’s attack on Ms M and the State’s allegations in this case which mean that the propensity evidence is not probative of the accused’s guilt of an offence against Ms Dodd. These differences include:
(1) Ms M was significantly older at the time of the offence than Ms Dodd was at the time she disappeared;
(2) the accused had been drinking alcohol and smoking cannabis before he assaulted Ms M, whereas there is no evidence of him using alcohol or drugs on 29 July 1999;
(3) the assault on Ms M took place at night, while Ms Dodd disappeared during the day;
(4) Ms M was a mature woman, whereas Ms Dodd was childlike in her appearance; and
(5) the offences against Ms M occurred eight years after Ms Dodd disappeared.
He submits that I should conclude that Ms M was a one‑off victim.
The accused also submits that there is a difference between the intention of the accused when he attacked Ms M and the State’s case that he attacked Ms Dodd intending to kill her.
After taking all of these matters into account, I find that the propensity evidence persuades me that in 1999, the accused was the type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her. This would be for the purpose of subduing her or overpowering her so that she was incapable of resisting him and so that he could rape her.
Although the incident with Ms M occurred eight years after Ms Dodd disappeared, there is no evidence of any change to the accused’s character or life which would justify me finding that he developed this propensity between 1999 and 2007.
This means that it is more likely that he unlawfully killed Ms Dodd in the course of a similar attack. However I agree with the accused’s counsel that it is far less probative of an intention to kill Ms Dodd. I acknowledge that it is possible that a person could become so enraged during such an attack that they would form an intention to kill. However as the propensity evidence shows a propensity for physical violence in order to facilitate a sexual assault, I consider that it is much more likely that Ms Dodd died in the course of being attacked to facilitate her sexual assault, rather than as a result of an attack intended to kill her.
I also find that the propensity evidence proves that the accused is a person who would be likely to take an earring as a trophy from his victim. This would explain why an earring was removed from Ms Dodd’s ear but not why it was left in Mr McConnell’s ute. On the other hand, the earring may well have come out of Ms Dodd’s ear during a struggle with the accused.
These conclusions are challenged by grounds 4 and 5.
Conclusions about the earring
587 The judge recorded the appellant’s submission that the evidence did not enable her to exclude, as a reasonable hypothesis, that the earring was dropped in Mr McConnell’s ute by a person other than Ms Dodd.
588 The judge referred to the appellant’s submission that the following meant that it was possible that the earring was left in the car, at a different time, by someone other than Ms Dodd, and that it sat in the crease between the bench seat and the back rest until it was disturbed by the police:
(a) the shepherd’s hook’s bent shape;
(b) the age of the ute and the seat cover;
(c) the availability of earrings of the same type; and
(d) evidence of the number of people who had used the ute.
589 The judge observed that, isolated from other evidence, that would be a reasonable possibility. However, her Honour found that, when considered with the evidence that:
(1) Ms Dodd was wearing an identical earring on 29 July 1999;
(2) the accused was driving Mr McConnell’s ute on that date;
(3) the accused had the opportunity to pick up Ms Dodd;
(4) the accused told the police he would have picked her up had he seen her;
(5) the accused has a propensity to violently assault female hitchhikers; and
(6) the accused has a propensity to seek an earring from such victims,
it was not a reasonable possibility that the earring found on the seat cover was left there prior to 29 July 1999 or that it belonged to anyone other than Ms Dodd.
590 Thus, it can be seen that the judge used the finding of opportunity, and two aspects of the propensity evidence, as part of her reasoning to exclude any reasonable possibility that the earring did not belong to Ms Dodd.
591 Ground 2A challenges this use of the finding of opportunity in excluding that possibility.
Conclusion as to whether the appellant killed Ms Dodd
592 The judge recorded that she had found that:
(1) in 1999 the accused had a propensity to pick up a lone female hitchhiker and to violently and seriously assault her so that she could not resist his sexual assault;
(2) the accused was alone in Mr McConnell’s ute on North West Road in the area of the location of the 961 marker and 2 km east of it at about midday on 29 July 1999;
(3) on the same date Ms Dodd was picked up by a person in a vehicle from North West Road in the area of the 961 marker and 2 km east of it and killed by that person;
(4) at the time she was picked up by her killer Ms Dodd was wearing ankh silver earrings with a blue stone in the middle of the cross;
(5) on 5 August 1999 the police seized the car seat cover from Mr McConnell’s ute and it had on it an ankh earring;
(6) the ankh earring which was found on the car seat cover was identical to one of the earrings worn by Ms Dodd on 29 July 1999; and
(7) it is not a reasonable possibility that the ankh earring belonged to anyone other than Ms Dodd.
593 The judge concluded that, given these findings, she was satisfied beyond reasonable doubt that the appellant picked up Ms Dodd and killed her on 29 July 1999 by some unknown means.
594 In so finding, the judge said she had taken into account circumstances favourable to the accused, including that:
(1) there was a narrow window of time for the accused to encounter and pick up Ms Dodd;
(2) there was a limited period of time for him to then dispose of her body;
(3) people who spoke to the accused at the roadhouse shortly afterwards did not notice anything unusual in his demeanour;
(4) despite extensive searches, nothing has been located to connect the accused with Ms Dodd, apart from the earring;
(5) there are other suspects for the killing of Ms Dodd; and
(6) the accused suffers from the disadvantage of defending the State’s allegations after a delay of 18 years.
595 The judge found that there was no reasonable inference that could be drawn that was consistent with the appellant’s innocence. That was so, given that the evidence proved that the appellant was driving alone on the same stretch of isolated road that Ms Dodd was walking on when she disappeared, he had a propensity to pick up female hitchhikers and seriously assault them, and there was compelling evidence that Ms Dodd was in Mr McConnell’s ute in the form of the earring that Ms Dodd was wearing on the day she went missing being found in the ute.
Intention
596 The judge was not satisfied that the appellant intended to kill Ms Dodd. The judge found it was a reasonable inference from the evidence that the appellant picked up Ms Dodd in order to sexually assault her, and that he killed her in the prosecution of that unlawful purpose without necessarily forming an intention to kill her. The judge was satisfied that the only inference to be drawn from the evidence was that the appellant’s act, which caused Ms Dodd’s death, was an act done in the prosecution of an unlawful purpose. The unlawful purpose was to subdue or overpower Ms Dodd by physically assaulting her, the ultimate purpose being to sexually assault her.
Verdict
597 Consequently, the primary judge acquitted the appellant of wilful murder, but convicted him of murder.
Grounds of appeal and submissions
598 The grounds of appeal and the parties’ submissions are detailed in Buss P’s reasons.
599 I will outline my understanding of the principles applicable to appeals from a trial by judge alone, before explaining the conclusions I have reached on the grounds of appeal.
Appeals from a trial by judge alone: legal principles
600 The relevant provisions of the Criminal Procedure Act 2004 (WA) and the Criminal Appeals Act 2004 (WA) are set out in Buss P’s reasons. I agree with what his Honour has said at [253] ‑ [258] as to the applicability to those Acts of what was said by the High Court in Fleming v The Queen.
601 The task of an appellate court in determining an appeal from a trial by judge alone on a ground under s 30(3)(a) of the Criminal Appeals Act was explained, in the context of the equivalent New South Wales legislative provisions, by the plurality in Filippou v The Queen:
Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act [the equivalent of s 120(1) of the Criminal Procedure Act 2004 (WA)] that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt ‘for all purposes’. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.
Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. … (footnote omitted)
602 The plurality explained, by reference to the New South Wales equivalent, that the appellate court must deal with an appeal under the third limb of s 30(3), namely par (c), in three stages. The first question is whether there was error of the kind alleged (assuming the appellant alleges error). If so, the second stage is to determine whether the error, alone or in combination with any other established error(s) or circumstance(s), was productive of a miscarriage of justice. If so, and if the respondent invokes the proviso, the third stage is to determine whether the respondent has established that the error was not productive of a substantial miscarriage of justice.
603 In explaining the task of the appellate court in this manner, the plurality distinguished that task from that which applies to deciding a civil appeal by way of rehearing.
604 The plurality made clear that, as regards the first enquiry, in deciding whether a finding of fact reveals error, the question is whether the finding was reasonably open, not whether the finding is, in the appellate court’s view, correct.
605 As regards the second enquiry, plainly, an error of fact that is not material, in the sense that it is not capable of having affected the result, will not give rise to a miscarriage of justice. The question is whether anything more than materiality in this sense is required in order that an error of fact give rise to a miscarriage of justice. The plurality did not address, in terms, the question of when and in what circumstances an error of fact made by a judge hearing a criminal trial without a jury would be productive of a miscarriage of justice.
606 That question was addressed by Gageler J in Filippou. His Honour referred to the position in jury trials, as explained in Simic v The Queen. In Simic, it was held that a judge’s misstatement of fact will give rise to a miscarriage of justice, and a substantial miscarriage, if it is reasonably possible that the misstatement may have affected the verdict, taking into account the gravity of the misstatement and the strength of the case against the appellant.
607 At [85] – [87] of Filippou, Gageler J took a similar approach in relation to an appeal against conviction following a trial by judge alone. His Honour stated that an appellant must establish two things in order to discharge the onus of establishing a miscarriage of justice. The first is that the trial judge made the alleged error of fact in arriving at an intermediate finding of fact. The second is that, having regard to the gravity of the error of fact and the strength of the case against the appellant, it is reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error.
608 Both parties submitted that what is said by Gageler J at [85] ‑ [87] of Filippou should be applied by this court. What was said by Gageler J was quoted with evident approval by Basten JA (with whom RA Hulme J agreed) in Taylor v The Queen. I will proceed on the same basis. That being so, I agree with Buss P’s conclusions at [302] above.
609 In my respectful opinion, in determining whether it is reasonably possible that an error of fact may have affected the judge’s verdict, it is necessary to take into account the judge’s expressed reasoning to the verdict (as well as the gravity of the error and the strength of the case against the appellant). For example, if the error of fact relates to something that is, on the judge’s stated reasoning, an essential step in that reasoning, then often, if not ordinarily, a conclusion that it is reasonably possible that the error affected the verdict may readily be drawn. In my respectful view, in hypothesising as to the verdict, absent the found error, the question is whether it is reasonably possible that the trial judge might have reached a different verdict, not whether it is reasonably possible that the appellate court would do so. Thus, the enquiry is not determined in the negative simply because, on the appellate court’s evaluation of the evidence as a whole, there is a path of reasoning to guilt that is wholly different to that taken by the trial judge. Just as, in applying the proviso, it is not for this court to exercise the function of the tribunal of fact, in determining whether an error of fact gave rise to a miscarriage, it is not for this court to exercise the function of the trial judge in a case of trial by judge alone. Conversely, consideration of other parts of the judge’s reasons may reveal, expressly or by implication, that an error in one aspect of the judge’s fact‑finding or reasoning is immaterial to the judge’s reaching of their conclusion. That is illustrated by Filippou itself. The plurality concluded that because the trial judge had found that any loss of self‑control was excluded beyond reasonable doubt, any error as to the test applicable to s 23(2)(b) of the Crimes Act 1900 (NSW), concerning provocation, was of no consequence. In these respects, the provision by a judge alone, of reasons for their verdict, provides a somewhat different framework for evaluating whether an error is productive of a miscarriage of justice. Another difference arises in the following respect.
610 As was emphasised in Simic, in a case of trial by jury, the trial judge tells the jury that the facts are for them and that they are not bound by what the judge says as to the facts. Thus, if a judge makes a misstatement of fact, the jury, who has heard the evidence, will not necessarily be misled at all. By contrast, where the judge is the tribunal of fact, the judge’s misstatement of fact necessarily means that the tribunal of fact has misdirected itself as to the facts. Whether, and to what extent, the error may have influenced the verdict is then to be evaluated in light of the reasons as a whole.
611 In Filippou, immediately following [85] ‑ [87], Gageler J further observed that the third limb (of the equivalent of s 30(3)) will not avail an appellant, unless the appellate court, on its own review of the evidence, can be persuaded that the error of fact gave rise to a reasonable doubt about the ultimate finding of guilt, which doubt cannot be resolved by the trial judge’s advantage in seeing and hearing the evidence. In my respectful opinion, that statement of principle is not consistent with the approach of the plurality. That is because what is said by Gageler J in this passage seems to me to be substantially the approach taken by McClellan CJ in the Court of Appeal in that case, which approach was rejected by the plurality. By contrast, Gageler J supported the approach taken by McClellan CJ. Consequently, and for the reasons in [609] above, I do not propose to apply this aspect of what Gageler J said in Filippou.
612 I will outline principles applying to the third enquiry, whether the proviso can be applied to dismiss the appeal, in the course of resolving ground 3.
Grounds 1, 2 and 2A
613 It is convenient to deal with grounds 1, 2 and 2A together, but without regard to the alleged error the subject of ground 3, before resolving ground 3.
What matters needed to be proved beyond reasonable doubt?
614 Grounds 1 and 2 are put in the framework that the falsity of the appellant’s alibi, and the fact that the appellant had the opportunity to encounter Ms Dodd on North West Road, respectively, were matters that needed to be proved beyond reasonable doubt.
615 The State was, undoubtedly, required to disprove the appellant’s alibi beyond reasonable doubt. However, I would not characterise it as an intermediate fact, because I do not think that disproving the alibi was necessarily a step separate from proof of guilt. I also do not accept that the prosecution was required to prove opportunity, as a distinct matter, beyond reasonable doubt. It is only when a fact is an indispensable link in a chain of reasoning towards guilt that it is an intermediate fact that must be proved beyond reasonable doubt. The notion of an intermediate fact being an indispensable link involves it being a discrete step necessary in order to establish another distinct step. The following observations of McLure P in Austic v The State of Western Australia seem to me to be applicable to the present case:
I do not accept the premise that either of the facts are indispensable links in a chain of reasoning towards guilt. Whether or not an intermediate fact is an indispensable link in a chain of reasoning towards guilt depends upon the issues and evidence in a particular case. As noted by Dawson J in Shepherd v The Queen (1990) 170 CLR 573, 581, whether or not the presence of the accused when the crime was committed is an indispensable link in the chain of reasoning depends on the circumstances of the case.
A fact will be an indispensable link in a chain of reasoning if it is a discrete step which must be proven before addressing the next step in the reasoning process towards the ultimate inference of guilt: Shepherd (576) (Mason CJ). That is, proof of the fact is a necessary condition for establishing a further (and different) fact.
The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the appellant killed the deceased, that being an element of the offence of wilful murder. The appellant could not have killed the deceased unless he had the opportunity to and was in the presence of the deceased when she was killed. However, opportunity and/or presence were not discrete steps in the reasoning process in this case. All of the circumstantial evidence in the case comprised strands in a cable rather than links in a chain on the issue of whether the appellant killed the deceased. (emphasis added )
616 For similar reasons, in DKA v The State of Western Australia, Mitchell JA, with whom Buss P and Mazza JA generally agreed, rejected an argument that, on a charge of sexual assault where the defence case was that the accused was incapable of an erection and ejaculation, the State was obliged to prove beyond reasonable doubt that the accused was so capable. His Honour explained the concept of an intermediate fact by reference to what Dawson J had said in Shepherd v The Queen, and then explained why the accused’s capacity to sustain an erection and ejaculate was not an intermediate fact as follows:
As a matter of fact, acceptance of the complainant’s evidence would carry with it a conclusion that the appellant must have been capable of sustaining an erection and ejaculating in the manner the complainant described. However, the jury did not need to be satisfied beyond reasonable doubt that the appellant was impotent before deciding whether it was satisfied beyond reasonable doubt that the accused engaged in the charged conduct. (original emphasis)
617 In the circumstances of this case, the alibi defence was an assertion that the appellant was not present at the place and in the period when Ms Dodd was walking on North West Road. What was characterised as the appellant’s alibi evidence related to the questions of when and at what speed the appellant left Moora on his return trip.
618 I accept that there are many cases, including some cited by Buss P at [364], holding that an alibi must be disproved beyond reasonable doubt. As I have said, I accept that the State must disprove alibi beyond reasonable doubt. However, that does not mean that disproof of the alibi is a separate or intermediate step in reasoning to guilt. Often, as here, the circumstantial evidence pointing to guilt is the evidence to be used to rebut the alibi defence.
619 In my view, in the circumstances of this case, neither the alibi defence nor opportunity was an intermediate fact requiring separate proof beyond reasonable doubt, distinct from the State’s onus to prove the elements of the offence beyond reasonable doubt. The position as to each of alibi and opportunity was materially different.
620 As to alibi, of course, the matters raised in the alibi could have provided a ground on which the judge was not satisfied beyond reasonable doubt of the guilt of the appellant. If the judge had been unable to exclude the reasonable possibility that the appellant was in Moora when Ms Dodd disappeared from North West Road, so that the alibi had not been disproven beyond reasonable doubt, a verdict of acquittal was required. But, in excluding any such reasonable possibility, the State relied, and was entitled to rely, upon the same matters as it relied to establish guilt, namely those set out at [531] above. The judge did not need to be satisfied beyond reasonable doubt that the appellant’s alibi was excluded before deciding whether they were satisfied beyond reasonable doubt that the appellant killed Ms Dodd. It was open for the judge to be satisfied beyond reasonable doubt, by the State evidence as a whole, both that alibi was disproved and that guilt was proved.
621 Opportunity was relied on by the State as one of several circumstances from which the inference of guilt could be drawn. It was, thus, a strand in the cable, not a link in the chain, and so did not require distinct proof beyond reasonable doubt.
622 In these respects, I accept the respondent’s submissions.
623 At trial, there was no single indispensable link in the reasoning invited by the State. That is because it relied on evidence relating both to the earring and to the hair found in Mr McConnell’s ute. In my view, the effect of the judge’s non‑satisfaction that the hair belonged to Ms Dodd was that proof that the earring was Ms Dodd’s became an indispensable link in a chain of reasoning to guilt. Consequently, that fact had to be proved beyond reasonable doubt. On appeal, the State accepted that this was so.
624 As I have explained, in my view, neither disproof of alibi nor proof of opportunity was required beyond reasonable doubt as a separate and distinct matter. However, in my view, whether any error on the judge’s part concerning opportunity or alibi occasioned a miscarriage of justice must be assessed by reference to the reasoning employed by the judge in coming to the verdict of guilty.
The judge’s approach
625 As Buss P has explained at [352] ‑ [358], the circumstantial nature of the State’s case required the finder of fact to consider the evidence as a whole, and not in a piecemeal fashion. In doing so, it would have been open to a tribunal of fact, after considering the evidence as a whole, to make findings as to the earring and to then take those findings into account in evaluating the questions of alibi and opportunity. A finding in relation to the earring was capable of resolving any doubts that may have otherwise existed as to alibi and opportunity. But, as explained below, that is not how the primary judge reasoned.
626 In coming to her conclusions on the questions of opportunity and alibi, the judge’s reasons do not refer to the evidence concerning the earring. As was ultimately accepted by the respondent, her Honour’s reasons cannot be read as impliedly relying on the evidence or findings concerning the earring in coming to the finding on opportunity. Indeed, given that the judge relied on her finding as to opportunity in coming to her conclusion, beyond reasonable doubt, that the earring belonged to Ms Dodd, it would have been circular and impermissible for her Honour also to have relied on the findings as to the earring in reaching her conclusions concerning opportunity.
627 It is clear, therefore, that the judge reached her conclusions as to opportunity independently of the evidence and findings concerning the earring. The same is true of the issue of alibi, with which the judge dealt together with opportunity. Whether appellable error in the judge’s findings as to alibi and opportunity has been demonstrated must be evaluated in that framework.
Ground 1
628 The critical issue on ground 1 is whether the judge erred in finding that alibi had been disproved beyond reasonable doubt.
629 I agree with Buss P, for the reasons he gives at [372] ‑ [391] and for the reasons below, that it was open to the primary judge to be, and her Honour did not err in being, satisfied beyond reasonable doubt that the appellant was not still in Moora at noon on 12 July 1999, and to be so satisfied without taking into account any finding as to the earring. (In so saying, I leave aside the alleged error the subject of ground 3, with which I will deal separately below.)
630 Witnesses at the trial gave evidence of seeing the appellant in Moora in the morning of 29 July 1999. However, none of the witnesses gave evidence supporting the appellant’s assertion that he left Moora sometime after noon. It was only what the appellant had told the police that provided evidentiary support for any conclusion that the appellant was still in Moora at noon. The weight to be given to what the appellant told the police was, of course, a matter for the judge to determine. In determining that question of weight, the judge was entitled, indeed obliged, to take into account the other evidence tendered at the trial.
631 In evaluating whether the appellant’s alibi was disproved, the judge took what the appellant had told the police at its highest, viewed from the appellant’s perspective. Subject to one qualification, she assumed, favourably to the appellant, that the appellant went to all the businesses in Moora that he told the police he had visited, in the order he described. The qualification is that the judge did not mention the fact that the appellant said that, immediately after the Post Office, he went to the newsagency to get another tax pack. Neither party’s submissions referred to this omission. Insofar as the judge relied on her conclusion, from the till rolls at Supa Valu, that the appellant’s purchase there was concluded by between 11.02 am and 11.06 am, the judge’s omission to refer to the appellant’s earlier visit to the newsagency was immaterial. That is because her Honour’s findings in respect of the appellant’s timing at Supa Valu rested on her identification of the 11.02 am to 11.06 am transaction as the sole transaction which could have been conducted by the appellant consistently with his account to police and the facts her Honour had found. The appellant having visited the newsagency before Supa Valu is not inconsistent with that identification of the appellant’s transaction. Consequently, any reference to his possible timing at the newsagency would have made no difference to the findings her Honour made as to the appellant’s timing at places he told the police he went subsequently.
632 Given the objective evidence as to the time at which the appellant was at Australia Post, what was critical was the duration of the things the appellant did after he was at Australia Post at 10.35 am. Thereafter, on the appellant’s account, he went to four places: the newsagency, Supa Valu, the butcher and the bakery. As I have said, the judge did not refer to the newsagency trip in her analysis of what the appellant did in Moora. The judge accepted it was likely that the appellant went to the Supa Valu store, in accordance with his habit. It was clear from other evidence that the appellant did visit the butcher. The judge was not positively satisfied that the appellant visited the bakery, but proceeded on the basis that it was possible that he did so. In proceeding in that fashion, the judge evidently allowed for that possibility in her evaluation of whether she was satisfied beyond reasonable doubt as to the appellant’s alibi.
633 As Buss P has outlined, the judge made findings as to the likely duration of each such visit. Proceeding on that assumption, the judge concluded that it was likely that the appellant left Moora around 11.30 am, and was satisfied beyond reasonable doubt, excluding any reasonable possibility to the contrary, that his time of departure was not after noon. To my mind, the manner in which that conclusion is expressed reveals and reflects her Honour’s approach to whether the alibi had been disproved beyond reasonable doubt. Her Honour evidently recognised that the process of estimation of the times taken for each of the appellant’s visits was necessarily an imperfect one. A degree of uncertainty always attends estimations. Consequently, her Honour distinguished between what was likely (that the appellant had left about 11.30 am) and what could be said beyond reasonable doubt (that the appellant did not leave later than noon). In effect, the additional 30 minutes from 11.30 am to noon provided a margin of comfort sufficient to account for the uncertainty arising from the process of estimation for her Honour to be satisfied beyond reasonable doubt that the appellant did not leave some time after noon. Taking into account her Honour’s advantage in having heard the evidence and received it in its entirety over a period of several weeks, I am not persuaded that her Honour erred in so concluding.
634 Consequently, ground 1 has not been established.
Ground 2
635 The appellant submits that even if, on proper analysis, opportunity did not need to be proved beyond reasonable doubt, that was the basis on which the judge proceeded, which is what matters for a ground concerned with miscarriage.
636 I agree with Buss P, for the reasons that he gives at [435], that the primary judge did not proceed on the basis that the State was required to prove beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd on North West Road between about 11.40 am and about 12.20 pm. As I have already indicated, in my view, the manner in which her Honour expressed her conclusions about the appellant’s movements demonstrates otherwise. In particular, her Honour’s conclusions as to alibi are expressed to be to the exclusion of any reasonable possibility to the contrary. By contrast, the judge’s finding as to opportunity is expressed by reference to what is likely. This contrast is reinforced by her Honour’s express exclusion of any reasonable possibility to the contrary in her conclusions as to the earring.
637 What her Honour said at [340] of her reasons might be taken to be a direction that opportunity had to be proved beyond reasonable doubt. The respondent conceded that this was so. However, in my view, that does not reflect her Honour’s critical conclusions and the terms in which those conclusions are expressed. I am satisfied, on a reading of the primary judge’s reasons as a whole, that she made findings as to opportunity having regard to what was likely, without a need to prove opportunity beyond reasonable doubt. Thus, if and insofar as the judge directed herself at [340] that opportunity had to be proved beyond reasonable doubt, her Honour did not act on that direction. Further, for reasons I have already explained, in my opinion it was not necessary that opportunity be distinctly proved beyond reasonable doubt. For these reasons, any error in what her Honour said at [340] was favourable to the appellant and, more significantly, immaterial to her Honour’s reasoning and conclusion.
638 I agree with Buss P that the primary judge did not err in finding that the appellant had the opportunity to encounter Ms Dodd on 29 July 1999 at about 12.05 pm. (Again, I leave aside the alleged error the subject of ground 3.) Subject to what follows, I agree with Buss P’s reasons for so concluding.
639 As already noted, whether a judge’s finding of fact reveals appellable error depends upon whether the judge’s finding was reasonably open, not whether that finding was, in the view of the appellate court, correct. In determining whether error has been demonstrated, weight must be given to the judge’s considerable advantage in receiving and considering the entirety of the evidence and in having the opportunity to reflect upon, and draw conclusions from, the evidence as a whole.
640 Many of the appellant’s submissions on ground 2 were directed to whether the judge should have had a reasonable doubt about opportunity, often being couched in terms of ‘reasonable possibilities’ that the appellant did not have the opportunity to encounter Ms Dodd. As I have explained:
(1) in my respectful view, the only intermediate fact that was an indispensable, and distinct, step requiring proof beyond reasonable doubt, was the finding that the earring found in Mr McConnell’s car belonged to Ms Dodd; and
(2) the judge did not approach the question of opportunity as though she needed to be satisfied of it beyond reasonable doubt.
Further, in my view, the State was not required to prove, and the judge was not required to find, beyond reasonable doubt that Ms Dodd had not disappeared from North West Road before 12.05 pm.
641 In the framework that opportunity did not need to be proved beyond reasonable doubt, the appellant’s submissions concerning the evidence of Mrs Crouch and Mr Barrett, and concerning the judge’s findings as to that evidence, do not establish that the judge’s finding of opportunity was not reasonably open.
642 The appellant emphasises that, in considering the appellant’s movements, the judge expressed some doubt as to Mrs Crouch’s estimate of when she left Moora, namely at 11.45 am. The judge observed that, adding the times Mrs Crouch said it took her to do her chores to the time of the banking receipt, she should have been ready to leave Moora closer to 11.30 am. Yet, the appellant submits, in earlier analysing Ms Dodd’s movements, the judge did not give him the benefit of this doubt as to Mrs Crouch’s time estimate. The appellant submits that if Mrs Crouch had left at 11.30 am, she would have reached Ms Dodd’s location before the appellant did; the fact that Mrs Crouch did not see Ms Dodd, therefore, raised the reasonable possibility that Ms Dodd was gone from the road before the time when the appellant reached her.
643 If the issue was whether opportunity was independently proved beyond reasonable doubt, these submissions would have considerable force. However, as I have said, that was not the issue. The judge found opportunity to be established on the balance of probabilities. In my view, Mrs Crouch’s evidence was not inconsistent with the judge’s finding that the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm. On Mrs Crouch’s evidence, she left Moora at 11.45 am. Travelling at the speed limit, she would have reached the location 2 km east of the 961 marker, where Ms Dodd otherwise would have been, a little after 12.10 pm, thus about five minutes after the appellant and so without overtaking him. The judge’s expression of doubt as to whether Mrs Crouch may have left before 11.45 am did not preclude, or render erroneous, her finding at [228] that Mrs Crouch’s evidence was consistent with Ms Dodd not being on North West Road at 12.10 pm.
644 For the reasons given by Buss P at [385], I am not persuaded that it is reasonably possible that, had the judge not made the logical error in [363] of her reasons, her Honour would have made a different finding as to opportunity.
645 The appellant submits that the evidence of Mr Barrett should have given rise to a reasonable doubt about whether the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm because his evidence gave rise to a reasonable possibility that Ms Dodd had disappeared from North West Road before 12.05 pm. I have already explained why I do not accept that opportunity needed to be separately proved beyond reasonable doubt.
646 The judge was required to evaluate, weigh and reconcile a considerable volume of evidence. In setting out her reasons, the judge considered some aspects of the evidence in stages, at times foreshadowing findings to be made later in the reasons. The judge dealt with Mr Barrett’s evidence in this fashion in the passage I have set out at [555] above. In that passage, the judge considered how Mr Barrett’s evidence interacted with other evidence and how it related to her findings, to be set out later, as to when the appellant left Moora. In doing so, the judge considered three scenarios as to when Mr Barrett left relative to when the appellant left: five or more minutes after the appellant; a few minutes after; and before the appellant.
647 As to the first scenario, the judge observed that if Mr Barrett had left the depot in Moora even five minutes after the appellant drove out of Moora along Dandaragan Street, it did not seem that Mr Barrett would have caught up with the appellant before the appellant reached the location of the 961 marker. The appellant submits that this finding reveals error in that, if Mr Barrett had driven at either of the 96 or 116 km per hour speeds considered by her Honour, given the appellant’s maximum speed of 80 km per hour, Mr Barrett would have caught up with the appellant by the location of the 961 marker.
648 I do not accept this submission. The judge found that the location of the depot would add ‘a couple of minutes’ onto Mr Barrett’s journey before he left Moora along Dandaragan Road. The judge evidently favoured the conclusion that Mr Barrett travelled at an average speed of 96 km per hour. In light of those matters, there is no error in the judge’s observation as to the first scenario. Travelling at 96 km per hour, and taking into account the extra couple of minutes, Mr Barrett’s time of travel to the point 2 km east of the 961 marker would have been only about four minutes less than the appellant’s.
649 In making her critical findings, the judge did not overlook Mr Barrett’s evidence. To the contrary, she carefully weighed it with all the other evidence, including Mr Stribley’s evidence.
650 In my view, on the whole of the evidence, it was open to find that the probabilities favoured the Telstra vehicle seen by Mr Stribley being Mr Barrett, and to find that Mr Stribley saw Ms Dodd, then the appellant in the ute, and then Mr Barrett five to ten minutes after the ute.
651 So far as I can discern, however, while identifying that as a ‘very reasonable and possible’ scenario, the judge did not expressly make a finding to this effect. Rather, in [237] ‑ [239], the judge identified that, on each of the three scenarios, there were possible reasons why Mr Barrett did not see Ms Dodd. As to the second and third scenarios, while recognising the possibility that this was because Ms Dodd was no longer on North West Road, the judge identified that Mr Barrett may not have seen her because he was preoccupied with getting to Jurien Bay or because, as the road was undulating, there may have been very little time for him to see her. In stating, at [318], her conclusions as to Ms Dodd’s movements, the judge said that she had given reasons why the failure of Mr Barrett to see Ms Dodd was not decisive. That is evidently a reference to what her Honour had said at [236] ‑ [239].
652 Thus, while favouring the first scenario, the judge took all the scenarios into account and, after weighing and evaluating the whole of the evidence, found that Mr Barrett’s evidence was not inconsistent with her finding of opportunity. Again, if opportunity had been required to be independently proved beyond reasonable doubt, there would be considerable force in the appellant’s submissions as to Mr Barrett’s evidence. However, as I have said, that was not, as the judge understood, what was required.
653 For these reasons, in my opinion, Mr Barrett’s evidence did not preclude, as not reasonably open, and does not otherwise reveal appellable error in, the judge’s finding that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm.
654 Similarly, for the reasons given by Buss P, Mr Peacock’s evidence did not weigh decisively against the judge’s finding, on the balance of probabilities, that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm.
655 I have, as the appellant invites, considered the cumulative effect of the matters to which the appellant points. To my mind, those matters would have precluded a finding beyond reasonable doubt that opportunity was independently proved. However, in my view, for the above reasons (which incorporate Buss P’s reasons), the cumulative effect of those matters did not preclude, by rendering not reasonably open, a finding, on the balance of probabilities, that the appellant had an opportunity to encounter Ms Dodd on North West Road at about 12.05 pm.
656 For the above reasons, ground 2 is not made out.
Ground 2A
657 Ground 2A is founded on the success of ground 2. Consequently, it fails with the rejection of ground 2.
Ground 3
658 By ground 3, the appellant contends that, in [438] and [439] of her Honour’s reasons, the judge erred in:
(a) using the appellant’s previous conviction for serious offences against Ms M, evidence of which was admitted under s 31A of the Evidence Act 1906 (WA), as an adverse basis for evaluating the weight to be attributed to what he had said in his police statement about where he went in Moora and the timing of his movements; and
(b) concluding that she was ‘not minded to accept’ aspects of what the appellant had said in his police statement without ‘independent proof’ or ‘independent evidence’.
659 The appellant’s principal submissions are summarised by Buss P at [168] – [175]. The appellant advances two main arguments, respectively supporting paragraphs (a) and (b) of the ground:
(1) The convictions did not logically bear on the appellant’s credibility because they related to offending that occurred in 2007, many years after his police statements, and the offending was of a nature that did and does not bear on credibility.
(2) In any event, the trial judge’s approach to the appellant’s police statements was flawed, including because it failed to give any effect to the modified Longman warning(s) that her Honour gave herself at [56] – [61] of her reasons.
Background
660 As already noted, the appellant’s alibi was embodied in the statements he made to police on 3 and 5 August 1999. The appellant did not give or adduce evidence on oath or affirmation at the trial. There was evidence from some witnesses that confirmed that the appellant had visited certain of the businesses that he said in his statements he had visited. No witness gave evidence supporting the appellant having visited the bakery or supporting the appellant’s assertion as to the time he left Moora to drive back to his home, namely ‘after 12 pm’.
The judge’s impugned reasoning
661 The parties’ submissions advance competing constructions of the judge’s reasoning in [438] and [439] of her reasons.
662 I accept the appellant’s submission that, in expressing the conclusion in [439], the judge in effect incorporated the reasoning in the first sentence of [438]. In [438], her Honour said:
Given the accused’s conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so. (emphasis added)
In [439], her Honour stated as follows:
Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police.
Comparison of the language of the first sentence of [438] and of [439], and the use in [439] of the connecting word ‘neither’, seems to me to demonstrate that the conclusion in [439] was, like the conclusion in [438], based on the two matters referred to in the opening phrase of [438]. In other words, both conclusions were based upon ‘the [appellant’s] conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation.’
663 In my view, in so reasoning, the first matter upon which the judge relied was the fact of the convictions as evidence of the appellant’s bad character; contrary to the respondent’s submission, her Honour did not rely on the tendency revealed by the convictions. In the relevant paragraphs, the judge did not refer to any tendency or propensity of the appellant, but only to his ‘conviction for serious offences’. This part of the judge’s reasons precedes, to a substantial degree, the judge’s analysis of, and conclusions about, the propensity evidence. Nothing in this part of the judge’s reasons explicitly refers to her Honour’s subsequent analysis of the propensity evidence and the propensities or tendencies that it revealed. Nor, to my mind, is there any implicit reference.
664 The respondent submits that [438] – [439], read with their preceding paragraphs, should be read as finding that the totality of the other evidence overwhelmed any weight to be attributed to what the appellant had told the police. As explained at [674] below, in my view, such a finding was open to the trial judge. However, to my mind, the judge’s reasons do not reveal such reasoning.
665 The judge set out what the appellant had told the police at [323] ‑ [329] of her reasons. Her Honour re‑articulated that the appellant’s case was that he had told the police the truth in that he had left Moora after 12.00 pm and got home around 1.00 pm and did not encounter Ms Dodd on his way home. At [340], her Honour said:
The question for me to answer is whether the State has satisfied me that the accused was on North West Road east of the location of the 961 marker between about 11.40 am and 12.10 pm and had the opportunity to pick up Ms Dodd. The accused says that he was in Moora between these times and thus did not have the opportunity to pick up Ms Dodd and kill her. …
666 The judge then gave careful and detailed consideration to all of the evidence bearing on the issues of alibi and opportunity, from [341] ‑ [413]. In that process, the judge referred to what the appellant had told the police as to what he had done and when he had done it; see, for example, [363], [366], [370], [376], [378], [381], [405] and [407]. In doing so, the judge used what the appellant had told the police as the frame of reference for examination of the evidence. However, nowhere from [341] – [413] did the judge make findings, or even observations, as to the credibility or reliability of what the appellant had told the police. It was not until the judge set out her conclusions at [433] ‑ [439] that the judge made observations or drew conclusions specifically directed to the credibility or reliability of, or the weight to be given to, the appellant’s statements to the police.
667 An element of the process of weighing the alibi against, and in light of, the evidence as a whole is to consider what weight is to be attributed to the evidence – in the form of what the appellant told the police – in support of the alibi and bearing on the opportunity issue. What is said in [438] and [439] does not reflect a conclusion that the evidence as a whole had overwhelmed what the appellant told the police – in other words, that it was the force of the other evidence and its inconsistency with the appellant’s account that led her Honour to reject the appellant’s account. Rather, it is directed to the appellant’s statements to police, considering their intrinsic weight and drawing an adverse conclusion as to that intrinsic weight. That is reflected by the terms of that conclusion – not to accept what the appellant had said without independent evidence to support it – which are terms conventionally used to express an adverse credibility finding.
668 Thus, what is said in [438] and [439] seems to me to be a distinct element of the judge’s resolution of the process of weighing the appellant’s statements against, and in the light of, the evidence as a whole. Moreover, what is said in [438] and [439] is not an expression of, and goes distinctly further than, a conclusion that the appellant’s unsworn statements should be discounted where they were in conflict with other evidence – in effect, her Honour found that, unless they were positively supported by other evidence, she declined to accept them.
Error in the judge’s reasoning?
669 As has been seen, in [438] ‑ [439], the judge used the appellant’s previous convictions for serious offences as part of the basis for attributing diminished weight to what the appellant said in his police statements as to where he went in Moora and his assessment as to his timing there. As recorded above, one strand of the appellant’s case on appeal contends that such use was impermissible. Such a use is, so far as I am aware, novel. The respondent could not identify any case in which a conviction admitted as propensity evidence, or indeed any admitted propensity evidence, had been used to diminish the intrinsic credibility of an accused’s statement to police. My research has not revealed any such case. At trial, the prosecution did not invite the judge to so use the appellant’s convictions, as the respondent acknowledged on appeal.
670 However, it is not necessary to decide whether the judge’s use of the appellant’s convictions to diminish the inherent credibility of his statements to the police was impermissible and, therefore, in itself, reveals error. That is because the judge used the convictions in coming to a specific adverse credibility conclusion – that the appellant’s statements would not be accepted unless supported by independent evidence. For the reasons below, I accept the appellant’s contention that the judge erred in drawing that conclusion, which I will refer to as the adverse credibility conclusion.
671 A trial judge has a considerable advantage over an appellate court in weighing and reconciling the varying and conflicting evidence of many witnesses, and in weighing the appellant’s statements against, and in light of, the other evidence. However, as explained above, the impugned finding is not of that nature. Rather, it is a conclusion as to the intrinsic worth of what was said by the appellant in his statements based, not upon an evaluation of its content but, upon its source – the appellant (having been convicted of previous offences) – and upon its form – not being on oath or affirmation. In determining whether such a conclusion should be drawn, the trial judge had no advantage over this court.
672 As I have said, the adverse credibility conclusion was expressed in terms conventionally used to express an adverse conclusion as to the credibility of a witness who gave evidence on oath or affirmation at trial. When a witness gives evidence at trial, there are many different bases on which such a conclusion might be reached. Some are based on the unsatisfactory manner in which a witness gave evidence, or the unsatisfactoriness of particular aspects of the content of what the witness said in their evidence. In some cases, a particular feature of the witness’s relationship to the events the subject of their evidence and the issues for decision may sustain a conclusion that their evidence should be approached with caution and not accepted without corroboration. Historically, accomplices provided an example of that. In some cases, a criminal record, for example for offences of perjury or of dishonesty, may sustain a conclusion of this kind.
673 In the present case, the judge’s adverse credibility conclusion was not based on the content of anything the appellant had said, but on the two specific matters identified in the opening phrase of [438]. In my respectful opinion, those two matters provided an insufficient foundation for the judge’s adverse credibility conclusion – declining to accept what the appellant had said in his police statements unless it was supported by independent evidence.
674 The fact that a statement to police is not made on oath or affirmation is, of course, relevant to the weight to be given to it. It is open to the court to give less weight to such a statement than it gives to evidence on oath or affirmation. To the extent that what the appellant said in his statements was inconsistent with other evidence that was given on oath or affirmation, it was open to the court to prefer the other evidence and, ultimately, to find that it disproved, beyond reasonable doubt, what the appellant had said in his statements. Had I accepted the respondent’s construction of [438] and [439] as expressing a conclusion that the totality of the other evidence overwhelmed any weight to be attributed to what the appellant had told the police, it would reveal no error. In determining ground 1, I have concluded that it was open to the judge to be satisfied beyond reasonable doubt that the appellant’s alibi – that he did not leave Moora before noon – was false. Thus, I accept that it was open to conclude that the evidence as a whole sustained the rejection, beyond reasonable doubt, of what the appellant had said to the police as to the timing of his movements and, in particular, as to the time of his departure from Moora, which statements were, of course, not on oath or affirmation.
675 However, as explained at [664] – [668] above, the impugned finding is not of that nature. Rather, it is a conclusion as to the intrinsic worth of what was said by the appellant in his police statements based, not upon an evaluation of its content but, upon its source – the appellant – and upon its form – not being on oath or affirmation. In my respectful view, the fact that what the appellant had said was not on oath or affirmation was not a ground to decline to accept what the appellant had said in his statements, regardless of its content, unless it was positively supported by other evidence. I agree with Buss P’s conclusion at [464] that the judge was not entitled to approach the evaluation of the weight to be given to the appellant’s alleged alibi on the basis that, as the alibi was not by sworn or affirmed evidence from the appellant, it was necessary for the appellant to support the alibi by reference to independent evidence in order for it to be accepted.
676 Nor, in my respectful opinion, was it open to conclude that the appellant’s convictions, alone or in combination with the fact that his statements to police were not on oath or affirmation, warranted a conclusion that what the appellant had said in support of his alibi would not be accepted unless it was supported by independent evidence. I am content to assume, favourably to the respondent, that the appellant’s convictions for his offending in 2007 were capable of diminishing the weight to be attributed to his statements. That would be on the basis that those convictions reveal defects in character which were highly likely to have been present in 1999 and which were capable of adversely impacting the appellant’s credibility because they were not the conduct of a decent person. While that may be so, the conduct the subject of those convictions, although undoubtedly appalling, does not bear directly upon honesty. Taken at their highest, to my mind, those convictions could not sustain the judge’s approach to the appellant’s statements that, unless positively supported by independent evidence, they should not be accepted.
677 Moreover, apart from the insufficiency of the basis for the adverse credibility conclusion, the effect of the judge’s adverse credibility conclusion was to put to one side what the appellant had said, without regard to its content, unless it was supported by independent evidence. Yet, as the judge had directed herself, the passage of so many years had very substantially diminished the appellant’s opportunity to obtain independent evidence to prove when he was in Moora and to support his alibi. In the concluding part of the reasons, the judge referred to the appellant’s disadvantages arising from the delay as a matter she had taken into account in reaching her conclusions. However, in making the impugned findings in [438] and [439], the judge made no reference to the modified Longman warning she had given. Determining the weight to be given to the appellant’s alibi as embodied in his statements was a critical step, in which the judge was obliged to have regard to the forensic disadvantage(s) suffered by the appellant. In the absence of express reference in this part of the reasons, in my view, it is not implicit in her Honour’s reasons, even having regard to the references to disadvantages in the direction and concluding part, that she did so. Thus, in my respectful view, in making the impugned findings the judge did not act consistently with the Longman warning she had correctly given.
678 For these reasons, in approaching what the appellant had said as to his movements and timing in Moora on the critical day in the manner already explained, in my respectful opinion, the judge erred.
Miscarriage of justice?
679 In a case of trial by jury, a miscarriage of justice occurs whenever the rules of evidence or procedure are not observed. On that approach, the error I have found is, in itself, a miscarriage of justice. However, the approach taken by the plurality in Filippou may suggest that, in a case of trial by judge alone, a different approach is taken to the miscarriage question, so that there is a miscarriage of justice only if it is reasonably possible that, but for the breach, the verdict may have been different. As already noted, the plurality concluded that, because the trial judge had found that any loss of self-control was excluded beyond reasonable doubt, any error as to the test applicable to s 23(2)(b) of the Crimes Act 1900, concerning provocation, was of no consequence. In other words, the plurality did not approach the miscarriage question on the basis that any departure from a trial according to law is, of itself, a miscarriage of justice. Rather, regard was had to the judge’s reasons and because those reasons indicated that the error of law was of no consequence, it did not occasion a miscarriage of justice. It is not necessary to decide the question as to the correct approach because, for the reasons that follow, in my opinion, the error the subject of ground 3 deprived the appellant of the possibility of a verdict of acquittal.
680 Whether, without the impugned approach to credibility, the judge’s verdict might have been different depends upon whether, without that approach, the judge may have come to a different conclusion on either or both of the issues of alibi and opportunity. In my view, it is reasonably possible that, if the judge had not taken the impugned approach to credibility, she may have come to a different conclusion in respect of the questions of alibi and opportunity.
681 In my view, the conclusions reached by the judge in [438] of the primary reasons were immaterial to the issues of alibi and opportunity. As noted at [631] and [632] above, subject to the qualification regarding the newsagency, which was immaterial, the judge assumed, favourably to the appellant, that he had visited all the places he told the police he had visited in evaluating both whether:
(1) she was satisfied beyond reasonable doubt that the alibi was disproved – in other words, that the appellant had left Moora by noon; and
(2) she found that the appellant had an opportunity to encounter Ms Dodd.
That being so, the judge’s statement that she was not minded to accept the appellant’s statements to the police as to the places he had visited was immaterial.
682 However, in my view, the same cannot be said of the judge’s like conclusion in [439] as to the appellant’s assessment of the time he did certain things. The appellant’s assessment of the time he did things includes what he said as to the time that he left Moora. Indeed, while he articulated the duration of some of his activities, in his statements to the police, apart from his assessment of the time he left Moora, the appellant did not attribute a time to other things that he said he did while in Moora. Self‑evidently, the time that the appellant said he left Moora was of critical significance – it was the subject of the appellant’s alibi and was of central significance to the issue of opportunity. Both of those issues were at the heart of the defence case at trial. Reasoning to the alibi and opportunity conclusions that the judge reached necessarily entailed rejection of the appellant’s account to the police of the time he left Moora. The structure of her Honour’s reasons reveals that [439] is directed to determining the issue the judge articulated in [433]: ‘whether the timing of the accused’s movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm’. One element of determining the issues of alibi and opportunity was the judge’s evaluation of the weight to be attributed to what the appellant had told the police as to the timing of his departure from Moora. What is said at [439] of the primary reasons represents the judge’s conclusion on that critical issue. While [439] follows the judge’s expression of her findings as to alibi and opportunity at [434] and [436], respectively, the paragraphs from [433] – [439] of the judge’s reasons are to be read as a whole.
683 As already explained, what is said in [439] is a distinct element of the judge’s resolution of the critical process of weighing the appellant’s statements against, and in the light of, the evidence as a whole.
684 For these reasons, in my respectful view, it is reasonably possible that had the judge not taken the approach to credibility reflected in [438] and [439] and drawn the conclusion she did in [439], she may have come to a different conclusion on the questions of alibi and opportunity and, consequently, may have come to a different verdict.
685 Thus, the error the subject of ground 3 gave rise to a miscarriage of justice.
Application of the proviso
686 The respondent relied on the proviso in response to ground 3. It submits that the fact the appellant’s statements to the police were not on oath or affirmation entitled the judge to give them little weight, so that, given the ‘relatively inconsequential use’ that the judge made of that evidence, no substantial miscarriage of justice arose.
687 I do not accept that the proviso can be applied so as to dismiss the appeal.
688 For the reasons at [682] – [683] above, it is reasonably possible that, had the judge not made the error the subject of ground 3 as it relates to [439] of the primary reasons, she may have come to a different conclusion on the questions of alibi and opportunity and, consequently, may have come to a different verdict. On the approach taken by Gageler J in Filippou, that means that there was a substantial miscarriage of justice. On the approach of the plurality in Filippou, there was a substantial miscarriage of justice because the appellant was denied a chance of acquittal that was fairly open to him.
689 The analysis in the preceding paragraph involves attention to whether the misdirection might have made a difference to the trial judge’s verdict. On the prevailing majority view in the High Court, that would appear not to be the correct enquiry. The majority in Kalbasi v The State of Western Australia observed, in the context of a jury trial, that the appellate court’s determination of whether the proviso applies does not turn on ‘its estimate of the verdict that [might have been returned] had the error not occurred’. Rather, the task of determining whether, notwithstanding an error, there has been no substantial miscarriage of justice is committed to the appellate court. In undertaking that task the following principles apply:
(1) The appellate court must undertake an independent assessment of the whole of the record of the trial. That examination requires account to be taken of the guilty verdict.
(2) It is a necessary, although not sufficient, condition of the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt. That is because the conviction of a person whose guilt has not been proved beyond reasonable doubt will always be a substantial miscarriage of justice.
(3) Consideration of the application of the proviso requires identification of, and consideration of the nature and effect of, the error(s) made at trial. Some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt.
(4) There are natural limitations on the appellate court’s ability to determine, based on the record, whether guilt was proved beyond reasonable doubt, particularly in cases in which the credibility of witnesses is of importance. In such cases, because the appellate court has not seen and heard the witnesses give their evidence, the court may be precluded from concluding that guilt was proved beyond reasonable doubt.
(5) In some cases, the appellate court may rely on the guilty verdict in a manner that enables those limitations to be overcome. However, the appellate court will not be able to rely on the verdict where the verdict may have been affected by the error(s).
(6) In some extreme cases, which are likely to be rare, the appellate court may be able to rely on its own conclusion, based on the record, that oral evidence contrary to the prosecution case is obviously false. The respondent did not suggest that this was such a case.
(7) Some errors are so fundamental or breach the fundamental presuppositions of the trial so as to be beyond the reach of the proviso regardless of whether, in the eyes of the appellate court, the evidence at trial proved guilt beyond reasonable doubt. This is not a case of that kind.
690 In my view, applying those principles, it cannot be said that there was no substantial miscarriage of justice.
691 As already explained, in my view, it is reasonably possible that the judge’s error the subject of ground 3 affected her Honour’s conclusions as to alibi and as to opportunity. That, in turn, affected the judge’s conclusion concerning the earring, as the judge relied on her finding of opportunity in excluding the reasonable possibility that the earring belonged to someone other than Ms Dodd. Thus, in my respectful view, the judge’s error the subject of ground 3 infected her conclusions as to the critically important issues of alibi, opportunity and the earring. That presents a significant obstacle to the application of the proviso.
692 This court has not seen and heard the numerous witnesses who gave evidence relevant to the issues of alibi and opportunity. As I have explained, the judge weighed the evidence of the appellant’s out of court statements to police against the other evidence, including that of the numerous relevant witnesses, in order to reach satisfaction as to disproof of alibi and proof of opportunity. In turn, those findings, founded on the outcome of that weighing process, supported the judge’s finding as to the earring. Therefore, in the process of reaching a verdict, evaluating, reconciling and resolving the conflicts in that evidence was very significant. In those respects, the trial judge’s advantage in having seen and heard the witnesses was, thus, significant. As explained above, in my view, it is reasonably possible that, without the error the subject of ground 3, the judge’s verdict may have been different. Consequently, the judge’s verdict does not enable this court to be satisfied, without having seen and heard the relevant witnesses, that guilt was proved beyond reasonable doubt. Working from the record, this court has no other gauge for evaluating, reconciling and resolving the conflicts in the evidence, and for weighing the appellant’s statements in support of his alibi in light of, and against, that evidence. In some cases of trial by judge alone, the judge’s unchallenged credibility or factual findings can be relied on by the appellate court. However, any aspect of the primary court’s reasoning that is, or may be, infected by error cannot be used by the appellate court in the application of the proviso. I have concluded, at [667] – [668] above, that what the trial judge said at [439] of the primary reasons was an element of the judge’s resolution of the process of weighing the appellant’s statements against, and in light of, the evidence as a whole. Therefore, working from the record, this court cannot conclude that guilt was proved beyond reasonable doubt.
693 Also, the application of the proviso could not be sustained by the different path of reasoning identified at [701] below. As there explained, in my view, on an assessment of the whole of the evidence, it was open to be satisfied beyond reasonable doubt of the appellant’s guilt by a path of reasoning that differs significantly from the path adopted by the trial judge in:
(1) making a finding, beyond reasonable doubt, as to the earring, without having made any finding as to opportunity; and
(2) then, using that finding to resolve any doubts as to opportunity and alibi.
694 However, even if this different approach were taken, with primary focus on the earring evidence, as Buss P has explained at [352] – [353], the whole of the evidence had to be considered. While it was open to make a finding as to the earring without first making a finding as to opportunity, the evidence as to opportunity and alibi was relevant to, and so had to be considered before making, any finding as to whether the earring belonged to Ms Dodd. Whether a tribunal of fact might adopt this different path of reasoning depends upon its assessment of the whole of the evidence, including its assessment of the opportunity and alibi evidence. Consequently, not having seen and heard the witnesses, in my view, this court cannot say that guilt was proved beyond reasonable doubt by that different path of reasoning.
695 Further, even if, on my assessment of the record, I formed the view that guilt was proved beyond reasonable doubt by employment of that different path of reasoning, there would be a real question as to whether the proviso could be applied in that manner. On one view at least, applying the proviso in a manner that employs a significantly different path of reasoning might be thought to be impermissibly exercising the function of the trial judge and to substitute trial by appeal court. However, as I have said, that question does not arise.
696 For these reasons, I am not persuaded that the appeal should be dismissed under s 30(4) of the Criminal Appeals Act.
697 Consequently, I would uphold ground 3.
698 It is, therefore, unnecessary to consider whether, in reaching the adverse credibility conclusion in [438] and [439], the judge breached the requirements of procedural fairness. The appellant may have advanced a contention to that effect, but the position was not entirely clear and the respondent did not address such a contention. Had it been necessary to determine the merits of such a contention, I would have sought further submissions from the parties, but, ground 3 having been otherwise upheld, it is not necessary to do so.
699 To some, it may seem strange that an error in one or two paragraphs of a careful judgment of almost 200 pages could lead to a successful appeal and a retrial.  However, the truth of what the appellant told the police was at the heart of his case at trial; acceptance of his account of when he left Moora would have required his acquittal.  In my respectful view, the judge’s erroneous discounting, unless supported by independent evidence, of what the appellant told the police occasioned a miscarriage of justice and a substantial one.
Ground 6
700 I agree with Buss P, for the reasons that he gives, that it was open to the trial judge to be satisfied beyond reasonable doubt as to the appellant’s guilt of the offence of murder. As his Honour has explained, it was open to the judge to find, as she did:
(1) that she was satisfied beyond reasonable doubt that the appellant’s alibi was false;
(2) independently of the evidence concerning the earring, that, on the balance of probabilities, the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm; and
(3) beyond reasonable doubt, that the earring found in the car seat cover belonged to Ms Dodd.
701 Further, on my review of the record, it was also open, on an assessment of the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt by a somewhat different path of reasoning. In my view, it was open to a tribunal of fact, as noted at [625] above:
(1) to be satisfied beyond reasonable doubt, having considered the whole of the evidence including that bearing on opportunity, but without making a finding as to opportunity, that the earring found in the car seat cover of Mr McConnell’s ute belonged to Ms Dodd;
(2) to take that finding, and the firmly established fact that the appellant was driving the ute on North West Road on the day and at a time proximate to when Ms Dodd disappeared, into account in considering the questions of alibi and opportunity; and
(3) on the whole of the evidence, to be satisfied beyond reasonable doubt that:
(a) the appellant’s alibi was disproved beyond reasonable doubt;
(b) the appellant had the opportunity to encounter Ms Dodd on North West Road; and
(c) the appellant unlawfully killed Ms Dodd with the requisite intention for murder or in circumstances sufficient to constitute murder.
702 Ground 6 has not been made out.
Retrial or judgment of acquittal?
703 I agree with Buss P, for the reasons that he gives, that there should be an order for a new trial.
Conclusion
704 For these reasons, I would make the following orders:

1. Leave is granted on each ground.
2. The appeal is upheld.
3. The appellant’s conviction is set aside.
4. There be a new trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JM
Research Associate to the Honourable Justice Buss

21 FEBRUARY 2020

Annexure A
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