DL v R

Court of Criminal Appeal (NSW)|2016-11-10|Before: Leeming JA, Rothman J, Wilson J, Hulme J

Judgment

THE COURT: DL stood trial before a judge and jury of 12 for the murder of Tania, a girl aged 15, on 19 July 2005 at Forresters Beach on the Central Coast of New South Wales. He pleaded not guilty, but was convicted on 27 March 2008 and sentenced, on 14 November 2008, to a term of imprisonment of 22 years. The sentence commenced on 19 July 2005; a non-parole period of 17 years, expiring on 18 July 2022, was fixed: R v DL [2008] NSWSC 1199. DL has been in custody since the day of the victim's murder. He seeks leave to appeal against both his conviction and sentence. Both appeals were heard together, but this is our judgment on the appeal against conviction. The Court's judgment on the appeal against sentence is DL v R (No 2) [2017] NSWCCA 58.
At the time of the murder, DL had just turned 16. Murder is a serious children's indictable offence and accordingly DL was dealt with at law, and tried in the Supreme Court. By reason of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), his name, and the names of other children involved at the trial, are not to be published, subject to the exceptions in ss 15B-15F. It does not appear on the material available to this Court that any of those exceptions are made out, and thus the deceased child cannot be named. However, we share the concern expressed by R A Hulme J in R v Maybir (No 8) [2016] NSWSC 166 at [2] that it would be disrespectful to the memory of Tania to anonymise her name completely.
By way of overview, most of the grounds of appeal against conviction relate, more or less directly, to the blood pattern analysis evidence adduced at trial from Detective Sergeant Gregory Moon. Matters raised include the way in which the evidence came to be adduced at trial, and more recent expert opinion evidence from Det Sgt Moon and from an expert retained by DL, Dr Mark Reynolds, led for the first time as fresh evidence on appeal. Both were cross-examined at some length in this Court. Speaking generally, DL alleges that a great deal of Det Sgt Moon's evidence at trial was incorrect, and in this Court, Det Sgt Moon has accepted that there were errors. DL also alleges that in any event Det Sgt Moon's evidence at trial was inadmissible and, that in the circumstances in which it came to be admitted, there was irremediable procedural unfairness to DL. The other aspects of the appeal against conviction are relatively confined, and relate to the conduct of the Crown Prosecutor.
The Crown denies that there was procedural unfairness, and that Det Sgt Moon's evidence was inadmissible. In light however of the acceptance by Det Sgt Moon of the deficiencies in some aspects of his evidence, the Crown points to the length of time which has elapsed, the operation of r 4 of the Criminal Appeal Rules, and relies very substantially on the proviso.
These reasons address the following issues: 1. The delay since 2008; 2. Overview of the facts; 3. The way in which Det Sgt Moon's evidence came to be adduced; 4. The content of Det Sgt Moon's evidence and its deficiencies; 5. Fresh evidence on appeal; 6. The other proposed grounds of appeal; 7. The proviso.

The delay since 2008

DL's applications seeking leave to appeal against his conviction and sentence were heard some eight years after sentence was imposed, and after DL had been imprisoned for more than 11 years. There was a lengthy, but not wholly satisfactory, explanation for the extreme delay.
DL was represented at trial by the Legal Aid Commission, which caused to be filed a notice of intention to appeal. Following the receipt of an advice on the merits of the appeal from senior counsel, and a further advice from junior counsel, legal aid to fund an appeal against conviction was refused on 22 October 2010. The Legal Aid Review Committee confirmed the refusal of aid on 16 March 2011.
DL's current solicitors, Matouk Joyner Lawyers, received instructions in May 2011 and briefed senior and junior counsel to prepare a merit advice on conviction and sentence appeal. It is not precisely clear when those counsel were briefed, although by letter dated 11 July 2011 to the Registrar of this Court, Mr Joyner advised that that had occurred. However, by letter dated 13 July 2011, the Deputy Registrar refused the application to file a notice of intention to appeal, stating as follows: "As you are aware, the NIA in this matter expired on 28 August 2009. Furthermore, I advise that on 21 September 2010 Registrar Drennan refused a subsequent late extension application, which had been submitted by the Legal Aid Commission on 17 September 2010. In light of the above, I advise that the current application, which is approximately 22 months out of time, is refused. As you are aware my decision does not prevent your client filing an appeal out of time with the court, supported by an application for such an extension."
A merit advice, said to have been "affirmative as to the prospects of success on appeal" was received on 20 February 2012 (at least seven months after counsel had been retained). Although its conclusion was disclosed, the content of the advice was not provided to this Court. However, it was said that "the contents of the merit advice and the proposed grounds of appeal were disputed by [DL] and his parents". Draft submissions on conviction and sentence from Queen's Counsel and junior counsel retained were only received on 20 November 2012, but it was said again that DL and his parents continued to dispute the proposed grounds of appeal.
The firm received instructions to brief alternative counsel and, on 21 November 2012, Ms Bashir SC was sent some documents in the matter. She advised that she would not be in a position to consider the matter until about March 2013. She provided a draft advice as to further steps to be taken prior to the determination of merit on 21 August 2013, during which time the solicitors appear to have been taking steps to recover exhibits, and making contact with blood pattern analysis experts. Not until 9 September 2013 was a decision taken that a blood pattern analysis expert should be engaged. Dr Reynolds was retained and he ultimately reviewed the exhibits and provided a report on 8 October 2014.
In the meantime, the High Court had delivered Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, and subsequently a large number of cases were reviewed by the Legal Aid Commission for "Muldrock error". In October 2013, Ms Bashir was briefed by the Legal Aid Commission in relation to DL's application for leave to appeal against sentence. A provisional hearing date of 12 March 2014 was allocated. The appeal against sentence was delayed because of DL's wish for the conviction and sentence appeals to be heard together, and also while awaiting the later High Court decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, governing the way in which applications for an extension of time were to be determined. The grounds of appeal and submissions in support were filed on 14 April 2016. The delay in the seven months thereafter was substantially attributable to the further exchange of fresh forensic evidence relating to bloodstains, and the need to find the lengthy period of time for the hearing (originally listed for five days) in this Court.
Thus, the first 2½ years of delay occurred while there was a dispute as to Legal Aid, which was refused. After private counsel were retained, part of the delay is attributable to DL's decision thereafter to retain different counsel, who herself had limited availability. Part of the delay of the appeal against sentence is attributable to the decision to seek to have the appeals against conviction and sentence heard concurrently. Finally, part of the delay (slightly more than a year) is attributable to the time between retaining Dr Reynolds and his preparation of a first report on two items of bloodstained clothing.
It is not possible to assess the ongoing distress to the victim's family and friends by the undue prolongation of proceedings in this Court, other than that it is undoubtedly real. Further, were the result to be that this Court quash DL's conviction and order a retrial, the prejudice occasioned by reference to the unavailability of witnesses and the fading of memories more than a decade after the events would be important matters, especially in relation to points not taken at the first trial and the force of r 4.
It was not suggested that the Deputy Registrar was wrong to state, in 2011, that this Court had power to extend the time within which to apply for leave to appeal, notwithstanding the earlier refusals by the Registrar. Such power was exercised (once again, without opposition) in Tongahai v R [2014] NSWCCA 81; (2014) 241 A Crim R 217 (see at [18]-[19]). The question of an extension of time cannot, however, be divorced from an assessment of the strength of the case sought to be advanced in this Court. The appropriate course in the circumstances of this case, where most of the proposed grounds of appeal relate to fresh evidence, is for the question of delay to be addressed when dealing with the various grounds of appeal.

Overview of the facts

In order to apprehend the nature of the proposed grounds of appeal against conviction, it is convenient to provide at the outset an overview of the nature of the Crown case. None of what follows in this section is controversial.
On the afternoon of 19 July 2005, Tania alighted from a bus which had carried her part of the way home from school. It had been the first day of the third school term. She walked through the car park of the Forresters Beach Resort with a view to walking to her home a little distance beyond. On the way, she was attacked, and stabbed with what appears to have been a short bladed knife. The knife was never found.
The forensic pathologist who conducted the autopsy confirmed that the deceased had suffered multiple stab wounds to the head, neck, arms, legs, chest and back. There were some 48 sharp force injuries. His evidence was that the injuries were widely spread and indicated "significant relative movement between the victim and assailant for at least part of the assault". One wound penetrated the wall of the right ventricle and passed into the ventricular septum. The pathologist gave evidence that, although it was quite difficult to assess how long those injuries would take to lead to cardiac standstill, he expected "a total survival time of 17 to 20 or maybe 30 minutes" because, despite their large number, all of the injuries were in fact relatively shallow, with no major blood vessels or major deep structures involved, apart from the heart. In cross-examination, he said: "I would expect her at least to remain certainly conscious, because there was no evidence of any significant head injury; scalp lacerations and incisions certainly, but no brain injury. So I'd expect her to remain conscious right until the time that there was sufficient blood loss and sufficient embarrassment of the heart's action because of its failing nature, because of the heart problem, that she would then develop some clouding of consciousness and then gradually become unconscious."
DL was arrested, at his home, because, as she lay dying, witnesses had reported the victim to have said "[D], Year 10, Erina High" (indicating DL's - relatively uncommon - given name). When the police arrived at DL's house, DL was seen opening the rear sliding door of the house reasonably quickly and running out towards the side gate. He was arrested as he sought to leave. DL's left hand was bandaged in a clean dressing and had been stitched. Police seized a hooded jumper and some blue shorts from the floor of one of the bedrooms, and noticed red coloured smears on the door of the bathroom and on the white coloured vanity. An officer took photographs of the clothes in the bedroom, and the red coloured smears on the floor of the bathroom.
Blood from the hooded jumper was subjected to DNA analysis and identified as being consistent with originating from both DL and the deceased.
One of the witnesses, Ms Audley, heard a noise from her holiday accommodation and saw a person stabbing the deceased. She said that the deceased was "lying on her back with her head near the stairs, and he was sitting on top of her stomach. So he had a leg on each side and he was stabbing her with his right hand." That witness said that the boy she saw was probably around 15 or 16, in a white polo shirt with grey board shorts and a blue baseball hat. That description did not match the deceased, and the witness failed to identify his photograph from amongst twenty photographs of young males nine days later. Other witnesses joined Ms Audley at the scene, waiting for an ambulance to arrive, and heard Tania's dying declarations.
Three witnesses gave evidence of seeing DL soon after the murder and before he was arrested. Ms Butcher, who lived nearby, gave him a tea towel to wrap around his bleeding hand. He told her that he fell over a rock and fell on something. DL's mother said that he told her that he cut his hand on some rose bushes. She and her son went to a doctor. The doctor said that DL told him that he had cut his hand on some barbed wire. At no time did the jury hear evidence of any account by DL that he sought to prevent some other assailant from striking the victim. DL did not give evidence at the trial.
None of those matters was specifically subject to any of the grounds of appeal. In addition to the foregoing, the Crown had also relied at trial upon expert evidence from Det Sgt Moon as to the nature of the blood spatters on DL's clothes. This was one of seven aspects of the Crown case summarised by the trial judge when summing up. Much of the appeal was directed to blood spatter evidence, both its content, and the way in which it came to be adduced.

The way in which Det Sgt Moon's evidence came to be adduced

Ground 1(a) was that: "The very late service of Det Sgt Moon's report and documents concerning experiments conducted by him and the trial judge's rulings pertaining to these matters caused irremediable procedural unfairness in the applicant's trial."
Within that ground is a complex procedural history, which was not always precisely delineated during the course of submissions.

(a) The late service of Det Sgt Moon's report

In order to assess the significance of the times at which Det Sgt Moon's report was served and experiments performed, it is necessary to summarise the course of the trial. DL's trial commenced on 4 March 2008 with a lengthy voir dire. The jury was empanelled on Monday 10 March 2008 and the trial ran for the balance of that week. On 17 March 2008, expert DNA evidence was given, including evidence that drops of blood behind the right shoulder of DL's sweatshirt were found to match the profile of the deceased.
There followed a further voir dire in relation to Det Sgt Moon's evidence lasting until Thursday 20 March. Good Friday was 21 March, and the trial resumed on Tuesday 25 March. The Crown addressed on 26 March, the defence on that afternoon and the following day, the judge summed up and the jury returned with a guilty verdict on the afternoon of 27 March.
At all times it had been clear that the Crown would rely upon, and the defence would have to deal with, expert evidence as to the blood stains on DL's sloppy joe and pants. Originally, it was planned to adduce evidence from another officer, Sgt Gibbs. Det Sgt Moon gave evidence on a voir dire that in early March 2008 he had received a brief, following Sgt Gibbs being taken ill. At that stage he was on holidays and did not return to work until the third week of March. He said that "from Friday through to the weekend, I had completed the report that's now [been provided]". There was a dispute at trial as to the extent to which Det Sgt Moon's report went beyond Sgt Gibbs' report. The report from Sgt Gibbs was not in evidence in proceedings before this Court.
During the voir dire, on 17 March 2008, Det Sgt Moon was invited to consider what was advanced as the "defence scenario", which was that DL confronted the assailant, while the latter was covered in blood and holding a knife that was dripping with blood, whereupon the assailant turned and attacked DL, slashing at him on more than one occasion, and inflicting a fairly deep cut to his hand. Det Sgt Moon gave a deal of evidence to the effect that much of what he observed was inconsistent with that scenario. During the course of that explanation, Det Sgt Moon was asked to assume that the blood on the shorts was "predominantly the accused's blood". Det Sgt Moon made it clear that he had not seen the analyst's report, and it seems clear that he had proceeded in preparing his report on the basis that all of the blood was that of the victim.
The difference between the reports prepared by Sgt Gibbs and Det Sgt Moon is a matter of speculation. Although the latter was tendered on the voir dire and therefore in the materials before this Court, the former was not. However, it was clear that the defence had, at some stage prior to the trial, engaged an expert of its own, Professor Hilton, to address the blood pattern evidence.
On Tuesday 18 March 2008, the primary judge put to counsel for DL: "It doesn't seem to me that the nature of the Crown case has changed or the nature of this aspect of it. Rather, you are being presented with a bit more evidence, on the same area, than you had expected."
The primary judge addressed the possibility that the defence would be unable to respond to the new evidence after indicating that an adjournment until the following Tuesday would be accommodated before Det Sgt Moon was called. His Honour said: "I think also that if you are going to mount a claim that an adjournment until next Tuesday is not sufficient, for whatever reason, you ought to make that claim supported by evidence. If Professor Hilton says, no, it's all beyond me, I think there ought to be evidence to that effect from Professor Hilton and perhaps evidence of what other steps you are taking."
His Honour then addressed the possibilities with the Crown: "Madam Crown, I think you have to accept the possibility still that I may take the view that Mr Moon's evidence should be excluded. If the defence, for argument's sake, can't find an expert in Australia to deal with it then you've got problems. Clearly if the evidence was only that of Mr Gibbs the defence has had time to prepare for it. The problem has arisen because Moon has gone appreciably further than Gibbs."
The Crown maintained that Det Sgt Moon had not gone much further than Sgt Gibbs. As noted above, it is not possible to express a view whether that was or was not so. The trial was adjourned until the following day.
On the following day, counsel for DL advised the court in the absence of the jury as follows: "The situation is that having had the opportunity to more fully consider Sgt Moon's statement and in light of the evidence that he has previously given Professor Hilton feels confident that he can answer that evidence, and indeed he anticipates that his answer to that evidence will not differ from the opinion he previously expressed to us."
Counsel went on to say that he expected that a further report would be able to be prepared by the following Tuesday.
Those matters refute the submission that there was any - let alone any irremediable - procedural unfairness in relation to reliance upon the 17 March 2008 report of itself. It is also plain that the trial judge was acutely aware of the potential prejudice which the late service of expert evidence could cause to the applicant, and was conscious of the need to ensure that the applicant could meet it.
Following the voir dire, the primary judge held that Det Sgt Moon was qualified to give most of the evidence in his 17 March 2008 report, with some exceptions. Immediately before indicating that view, his Honour said that "I will hear Mr Hogan on that if he wants to". After dealing with the various paragraphs which his Honour rejected (and after hearing further argument from the Crown in support of those paragraphs, which his Honour rejected), the primary judge returned to the defence: "HIS HONOUR: Mr Hogan, do you want to quibble, or I shouldn't use that term, do you want to challenge any of the rulings or indications I have made in favour of the Crown this afternoon? HOGAN: No. I think that the objective observations he is entitled to give evidence of. The conclusions as to proximity to an impact site with a surface covered in blood, he's entitled to give that evidence and I suppose it might be of assistance before he gives his evidence for an agreed version of that concluding paragraph to be prepared because as it stands I don't know that I am even inclined to cross-examine him."
Defence counsel confirmed that he did not need to address any further. That occurred at the conclusion of the hearing on 20 March 2008.

(b) Det Sgt Moon's experiments over Easter

However, after the voir dire, there were further developments which were central to the balance of this proposed ground of appeal.
First, after being confronted with the "defence scenario" during the voir dire, Det Sgt Moon performed a series of experiments on Easter Sunday, 23 March 2008, resulting in 34 photographs accompanied by a brief description. These were given a great deal of attention during the hearing of the appeal, notwithstanding that at no stage did they ever go before the jury. It is not necessary to summarise them in any detail. Essentially, using a plastic dummy and an inflatable ball, some clothes and some pig skin, a deal of blood was placed on the dummy which was repeatedly struck, with a view to determining how much blood was transferred onto the assailant's hand. Further experiments were done mimicking a stabbing motion to determine whether blood from the hand and forearm could be transferred to a nearby vertical surface. There was a deal of criticism in this Court as to the methodology adopted by Det Sgt Moon, much of which he accepted, although noting the impossibility of conducting any experiment which could truly replicate the effect of knife blows into a living human body.
The significance of the evidence was not that it went before the jury, but because it was disclosed to the defence and affected the decisions made by the defence in relation to Det Sgt Moon.

When the trial resumed after Easter on 25 March 2008, the Crown advised (in the absence of the jury) that Det Sgt Moon had performed those additional experiments over the Easter break. The Crown's stance was as follows: "The Crown would submit that it's entitled to call evidence about that defence-suggested scenario if the defence wish to persist with calling evidence to that effect. Of course it's not something that the Crown could have prepared before the trial because it was never put by the accused or by his representatives that that was what was going to be the suggested explanation for the evidence."
The Crown confirmed that if Professor Hilton gave evidence that the spatter pattern was as consistent with the defence hypothesis as the Crown's hypothesis, then it would seek to call that evidence in reply. And the prosecutor added "of course I'm putting the defence on notice that if Detective Sergeant Moon is asked whether he has performed the experiments relative to the defence hypothesis, he will now answer it in the affirmative, and that evidence will be there."
Defence counsel's immediate response was that the proposition did not give rise to any problem: "HOGAN: If my friend doesn't propose to lead any evidence about that experimentation in chief and is simply doing a courtesy of putting me on notice that that has occurred over the weekend, I'll take that into account in determining what cross-examination I have of Officer Moon and whether or not I call any evidence to that in my own case. That's not problematic."
However, presumably as the consequences of what had occurred were appreciated, defence counsel went on to say that if the Crown proposed to lead evidence about the recent experiments in chief, then it would be necessary to supply a report setting out the details of the experimentation, how it was undertaken and exactly what had been undertaken.
It appears, however, shortly thereafter, that defence counsel appreciated the difficulty in which he was placed. He said - and there is force in this - that: "It makes it impossible for me, I suppose, to make an informed decision whether or not I call evidence in my case and whether or not I cross-examine the witness about an alternative hypothesis, without me having any of the details of the experimentation that was undertaken".
At this stage, a further difficulty arose. It was that Professor Hilton's train had been cancelled and he was not able to attend court until 11:30 that morning. The court adjourned.

(d) The trial judge's ruling on Det Sgt Moon's further evidence

After the mid-morning adjournment, defence counsel advised that Professor Hilton had arrived "in the last ten minutes or so" and they had had an opportunity to look at the photographs and the four page description of what they depict. Counsel applied for a further voir dire, because it was his application that the evidence ought to be excluded. The primary judge was sympathetic to that application. His Honour said "I don't see a problem with excluding the evidence-in-chief because I think the Crown should have had this prepared at an earlier stage."
For that reason, no voir dire was necessary. His Honour then added the following: "HIS HONOUR: … How you cross-examine is a matter for you. You're on fair notice of some answers you would like to get if you raise a particular topic. If you don't cross-examine on the topic along the lines you did on the voir dire, I would see a difficulty in your calling Professor Hilton to give evidence along lines which you have not put to the Crown's expert. Although I'm not making a final decision, I see considerable difficulties in saying: Well, if you choose not to do it in chief to the Crown's witness but call evidence yourself, then the Crown ought to be allowed a case in reply. But of course that question only arises after (A) your cross-examination of Sergeant Moon in the Crown's case in chief and (B) your own case if there is one. Now, I can quite understand that you may wish, before you make a decision concerning your cross-examination, to have Professor Hilton look at this material but I'm not sure that you need a voir dire hearing at this stage. HOGAN: If the Crown doesn't seek to lead evidence-in-chief then with respect I agree with your Honour, that I have to just make the decision - a forensic decision based on the consequences of pursuing one course of action or another. It's a difficult position to be put in at this very late stage of the trial, to be constantly met with fresh evidence, whether or not the Crown seeks to lead it in chief. If the position is that the Crown is not going to seek any evidence from Detective Moon in relation to these experiments, then there's no need, as your Honour says, to conduct a voir dire about it."
A further short adjournment was granted. It was plain that at the forefront of the considerations being balanced by the primary judge was the fact that it was clear that both prosecutor and defence ought to have known at an early stage that the accused's clothing had a deal of blood on it, including the blood of the deceased.
The primary judge confirmed that, subject to the rulings already made excluding part of Det Sgt Moon's statement, his evidence in chief was to be limited to the subject of the contents of his statement.
At 12:05pm, Det Sgt Moon was called and gave oral evidence in chief which, for the most part, adhered precisely to the paragraphs of his report dated 14 March 2008 which had not been excluded by the primary judge. His evidence seems to have lasted for around 60 minutes. There was no cross-examination by defence counsel. Not only was the "defence scenario" not put to the expert, but also there was no challenge to call into question the assumptions or methodology or conclusions which he had expressed.

The content of Det Sgt Moon's evidence and its deficiencies

The most efficient approach is to summarise aspects of Det Sgt Moon's evidence in some detail and at the same time to indicate the criticisms advanced of it, eight years later, on behalf of DL and with the benefit of Dr Reynolds' report, and advances in forensic science in the intervening period.
First, when giving his qualifications, which included being a member of the New South Wales Police Service for 21 years and performing duties in the Crime Scene section for 14 years, Det Sgt Moon said "I have completed an advanced course in bloodstain pattern interpretation delivered by the National Institute of Forensic Science in 2004". DL was critical of his use of the word "advanced".
Secondly, DL was critical of the failure by Det Sgt Moon to identify the assumptions on which his opinions were based, and the qualifications to which they were subject.
Thirdly, the Crown tendered the hooded jacket and blue shorts taken from DL after his arrest. Det Sgt Moon said that: "The jacket was manufactured from a polyester/cotton mix and involved a tight weave. Due to the type of fabric used a small amount of distortion of bloodstain patterns on the garment could occur. Q. Thank you. You say that because there's some literature to that effect that you have consulted, is that right? A. Yes, that's correct."
DL was critical of his description of the jacket involving a "tight weave" and that only a "small amount" of distortion could occur. Dr Reynolds and Det Sgt Moon agreed in this Court that it was a "knit" rather than a "tight weave" and that "unless the specific composition of a garment is known then no estimation of bloodstain distortion is possible". (Exhibit D, par 23.)
Fourthly, Det Sgt Moon made it clear in his report that the literature was a paper by Joseph Slemko, "Bloodstains on fabric: the effects of droplet velocity and fabric composition", a presentation to the International Association of Bloodstain Pattern Analysts, Houston, Texas, November 9, 1999. DL was critical of Det Sgt Moon's reliance on that publication. Dr Reynolds said that in 2003, the IABPA newsletter was not a recognised peer review scientific journal, that the actual research from 1999 was dated, that the article contained a number of factual inaccuracies and errors, and that the research lacked scientific robustness due to poor experimental design. Dr Reynolds further said that Dr Slemko had himself recommended against the use of bloodstain directionality indicators on fabrics and had also cautioned against using bloodstain size as an indicator of distance from source.
Fifthly, after testifying that he was examining the items and giving evidence because Sgt Gibbs had gone on sick leave and was unable to attend court, Det Sgt Moon expressed a series of opinions based on the size, distribution and shape of bloodstains, as follows: 1. The opinions distinguished "projected blood", "cast-off blood" and "transferred blood". 2. Projected blood was described as relating to "an impact with force into a bloodstained item causing blood to dispel from that blood source". There was then the following exchange: "Q. So, blood moves from the blood source onto the garment? A. As a result of force being applied to the blood source or impact site. HIS HONOUR: Basically the splash? A. Basically the splash, yes, that's correct." There was criticism of the affirmative response being given to the trial judge's question. 1. Cast-off blood was described as "where blood is on an item, the item could be a weapon, could be any item, and as the item is moved blood is expelled from that item which caused cast-off." 2. Det Sgt Moon gave evidence that some of the bloodstains on the clothing were consistent with being projected blood or cast-off, but that evidence was premised on his assumption that all of the bloodstains were blood of the deceased, rather than blood of DL. 3. Det Sgt Moon also gave evidence about "directionality", being a reference to expressions of opinion about the direction from which blood leaving a stain on the clothing had come from. He gave the following evidence by way of explanation: "If we have a circular bloodstain we can say that that has been projected off at 90 degrees from the source. As that moves away, the angle changes, the blood becomes more elongated so the longer axis shows directionality of the bloodstain." Det Sgt Moon agreed in this Court that, taking into account the fact that there were two sources of blood, the analysis of directionality needed to be reconsidered. Det Sgt Moon gave evidence as to directionality, all of which he accepted required to be reconsidered in relation to bloodstains on the right cuff of the jacket (photographs 8 and 10), photographs 13-17 on the outer and inner cuff area of the left sleeve, photographs 3-5 on the front left leg of the shorts, photograph 8 on the front right leg of the shorts and photographs 15 and 16 of the left leg of the shorts. 1. In relation to photographs 13 and 14 on the bottom of the left sleeve, Det Sgt Moon said: "These stains were consistent with the garment coming into contact with a bloodstained item causing a transfer pattern. Some of these stains showed characteristics of smearing." Det Sgt Moon said in this Court that "the terminology 'smearing' is now referred to as either a 'swipe pattern' or a 'wipe pattern'". 1. At the conclusion of his evidence, Det Sgt Moon gave some opinions derived from the entirety of his examination of the clothing. The opinions included that: 1. it could be concluded that multiple events had occurred; 2. multiple areas on both clothing items had come into contact with bloodstained items causing numerous transfer patterns; 3. the large amount of fine projected blood spatters on the inner portion of the left sleeve indicated that this portion of the garment was in close proximity to the event, and the distribution and directionality of the spatter indicated that the blood deposit involved multiple contacts; 4. the large amount of transferred blood in and around the cuffs and in the right pocket of the shorts indicated that both hands of the person wearing the garments were heavily bloodstained; and 5. the position of blood spatter on the rear right side of the jacket was located and distributed in a linear corridor indicating that the source of the blood was cast-off blood as a result of blood being released or thrown from a moving bloodstained object.
It is convenient to note that, in relation to the rear portion of the jacket, located behind the right shoulder, where blood with a profile consistent with that of the deceased was found, Det Sgt Moon gave the following evidence: "There were numerous bloodstains located on the rear portion of the jacket. There was a combination of different types of bloodstain patterns. There were a number of blood spatters located on the rear portion of the right shoulder as indicated by photographs 20 of 22 and 21 of 22. Two further blood spatters were located further down the lower right side of the jacket. These marks were highlighted with red marker pen, marked by the DNA biologist. The position of these stains and the distribution in a linear corridor indicated the source of the blood is consistent with cast-off blood." This evidence was accepted by Dr Reynolds in 2016, who said: "These small bloodstains are of a size, shape, distribution and location such that they are likely a result of deposition by cast-off mechanism. [Tania] is the likely contributor of these bloodstains. In the limited instructions provided to this author regarding the appellant's versions of events it is difficult to reconcile the presence of these bloodstains with that version."
The Crown case closed shortly thereafter. There followed some short character evidence in the defence case that afternoon, and on the following day, 26 March 2008, the defence case closed. There was no case in reply.
Counsel addressed for the whole of that day. No objection was taken at the time to a number of aspects of the Crown's address, of which complaint was made on appeal. The defence address had not completed by the end of the day. On the following day, in the absence of the jury, the Crown pointed out that there had been an inaccurate summary of Det Sgt Moon's evidence, which counsel for the defence corrected at the outset, as follows: "Ladies and gentlemen, before I continue, there are two matters that I want to correct from what I put to you yesterday. … I put it to you that the stain on the right shoulder was something that [Det Sgt Moon] had described as a contact stain. In fact I'll read you what his evidence was in relation to that particular part of the sweatshirt. Your Honour, this is on page 607 at about line 12: 'There were a number of blood spatters located on the rear portion of the right shoulder as indicated by photographs 20 of 22 and 21 of 22. Two further blood spatters were located further down the right side of the jacket. These marks were highlighted with red marker pen, marked by the DNA biologist. The position of these stains and the distribution in a linear corridor indicate that the source of the blood is consistent with cast-off blood.' So to the extent that I suggested his analysis of that particular stain was that it was a transfer pattern, it's part of a group of stains apparently, which indicates are consistent with cast-off blood. However, the more general propositions that I've put to you still apply. Of those number of stains, however many it is, there's only one on which there's been any DNA analysis undertaken. And I think I also put to you in passing that as a common sense proposition, cast-off in the way the Crown indicated, is something going over the shoulder, you might think is equally explicable by motion downwards from behind the person wearing the jacket. So I correct what I put to you yesterday, but can I make this submission to you, that really it doesn't make any great difference. That's of course a matter for you."
The force of the deficiencies in Det Sgt Moon's evidence is best addressed in light of the fresh evidence adduced in this Court in support of ground 3.

Ground 3

Proposed ground 3 is: "There has been a miscarriage of justice in the trial of the applicant on account of evidence that is now available to the applicant and which is fresh evidence and/or evidence undisclosed at the trial."
There was a significant dispute in this Court as to the admissibility of parts of the evidence of Det Sgt Moon, and on the question of the extent to which DL was seeking to rely on evidence which was fresh. The lines of that dispute were drawn prior to Det Sgt Moon and Dr Reynolds reaching agreement following the expert conclave between the men on the first day of the hearing of the appeal. Because it is possible to resolve this ground favourably to DL without addressing that dispute, it may be passed over.
At the commencement of the hearing, Det Sgt Moon and Dr Reynolds were directed to participate in an expert conclave. The result was Exhibit D, which conveniently recorded a large number of deficiencies in Det Sgt Moon's evidence at trial. The extent of the concessions made by Det Sgt Moon may be seen from the following extracts: "1. Do the witnesses agree that the entirety of G Moon's evidence before the jury was on the basis that there was only one source of blood for the BPA on the clothing, namely the deceased? Agreed. … 3. Do the witnesses agree that the evidence that G Moon gave before the jury on directionality, angle of impact and perpendicularity needs to be withdrawn as the evidence was misleading? Yes already conceded except for the spatter pattern on the inside of the Sloppy Joe left sleeve. … 7. Do the witnesses agree that both cast off and discrete transfer can produce small stains on a worn (3D) clothing surface that is in motion at the time of deposit? Yes and in some instances you may not be able to distinguish between them. 8. Was the only experience that G Moon had in relation to BPA on worn (3D) clothing in motion the experiments that he conducted over the Easter long weekend during the trial? It was the first set of experiments conducted in relation to 3D clothing examination however Moon was unable to recall to what extent clothing worn on people was addressed in training that he had previously undertaken. … 10. Since the time of the trial in 2008 have there been significant developments in the area of Blood Pattern Analysis ('BPA') as it relates to the analysis of bloodstains on clothing? Agreed and also refer previous responses given by both witnesses dated 7th November 2016. 11. Do these developments encompass a greater understanding of the difficulty in drawing conclusions from bloodstains on clothing that were being worn by a person or persons who at the relevant time were moving? Agreed. 12. Is it now understood that blood stain directionality theory cannot be undertaken for curved surfaces or surfaces in motion at the time of blood deposition. It has only been validated for smooth, static, non-porous surfaces? In instances where there are individual or few bloodstains present then directionality features should not be relied upon however where complete patterns are present then directionality indicators can in some instance be relied upon. 13. Is a consequence of these developments that the evidence given by Det Sgt Moon at the trial regarding: directionality, angle of impact and perpendicularity of various blood stains is retracted? Yes already conceded except for the spatter pattern on the inside of the Sloppy Joe left sleeve. … 15. In light of the further testing done on the blue Mango brand board shorts, was the evidence given in relation to the "holistic" BPA analysis given by Det Sgt Moon before the jury now unable to be maintained? Agreed. 16. Can blood stain size stand alone criteria to separate spattered blood from cast off or from transferred blood? Was Det Sgt Moon's evidence at trial on this issue incorrect? Agreed with caveat: In instances where stains are few and no overall and obvious pattern features exist it may be impossible to distinguish between the three using size alone. Moon's evidence was not strictly incorrect it is better described as being incomplete. 17. Is size of the blood stain alone enough to categorise a blood stain as 'projected blood' as that term was used in 2008? Projected blood in 2008 now refers to spatter and as such the answer is NO. … 22. The blue mango shorts were adsorbent not absorbent? Agreed 23. The fabric of the sloppy joe is a 'knit' and not a 'tight weave'? The composition may result in significant distortions to the blood stain on the sloppy joe? Agreed re Knit v Weave component. Unless the specific composition of a garment is known then no estimation of bloodstain distortion is possible."
The consequence of that agreement means that there were highly material errors in the evidence of the last Crown witness, given without challenge, on the day before the case closed. There is no occasion for any lengthy analysis of the materiality of the evidence before the jury. This is a very clear case. The whole of Det Sgt Moon's evidence insofar as it was based on directionality, angle of impact, perpendicularity, or the assumption that there was a single source of blood, was not soundly based.

Conclusions on grounds 1(a) and 3

It is plain that to the extent that the conviction was in part based upon the evidence of Det Sgt Moon, it cannot safely be maintained, in light of what this Court now knows of the deficiencies in that evidence. There should be the requisite extension of time and grant of leave in respect of ground 3. Ground 3 is made out.
There is also force in part of the complaint that the defence was unable fully to cross-examine Det Sgt Moon by reason of the experiments he had done over Easter. That said, ultimately the issue which arises on a ground such as this was framed by Gleeson CJ: "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].
In this respect, there were significant deficiencies in the case advanced by DL in this Court. What was the evidence which Professor Hilton could have given? Why was he not called? Why was there no cross-examination at all of Det Sgt Moon? Was there a forensic decision to take that course so as to minimise the impact of his evidence before the jury?
Given the extraordinary efforts which have been directed to obtaining fresh evidence on these issues, and the length of time that has elapsed, it is curious that none of those matters were established by evidence.
This is also a ground where r 4 is of importance. As already noted, the trial judge made it quite plain that if there were evidence that the defence could not respond to in Det Sgt Moon's initial report, he would not permit the Crown to rely upon it. Defence counsel unequivocally advised the Court that he was able to deal with the evidence. The question then becomes quite a fine one: was there sufficient procedural unfairness flowing from the further experiments undertaken by Det Sgt Moon such as to give rise to an unfair trial.
However, notwithstanding those matters, we have concluded that the significance of the concessions made in this Court by Det Sgt Moon is such as to warrant an extension of time and the grant of leave in respect of ground 1(a). We cannot exclude the reasonable possibility, which was indeed raised by counsel in 2008, that he was placed in an unfair position in relation to Det Sgt Moon's experiments over Easter which materially affected the decision not to cross-examine or adduce evidence. This ground is made out.

Grounds 1(b) and (c)

Grounds 1(b) and (c) are that: "(b) Det Sgt Moon's evidence should have been excluded under s 76(1) of the Evidence Act 1995 (NSW), Det Sgt Moon's evidence not falling within the exception in s 79(1) of the Evidence Act. (c) The admission of Det Sgt Moon's evidence caused the applicant's trial to miscarry by reason of the limited (if any) basis for assumptions made by Det Sgt Moon, the failure to adhere to or express the limitations of his evidence and the consequent misleading nature of the evidence."
In light of the conclusions on grounds 1(a) and 3, nothing turns on these proposed grounds. It is appropriate therefore to address them concisely.
Paragraphs 121-158 of DL's written submissions in chief contend that the entirety of Det Sgt Moon's evidence should have been excluded. It is now said that (a) at the time of trial, "there was no validated science for the interpretation of blood staining on fabric worn by a person where two (or more) people were moving relative to each other and both bleeding at the time that blood stains were deposited", and (b) that even if there were, Det Sgt Moon did not have the relevant expertise. The submissions develop the latter point at length substantially by reference to the evidence given by Det Sgt Moon on the voir dire.
Ground 1(b) is not made out. Coincidentally, Det Sgt Moon had been lectured by Dr Reynolds on blood spatter analysis. It is true that there have been developments in three dimensional modelling of blood spattering in recent years. However, it is going too far to say that it was inadmissible to express opinions on the subject in 2008. This is not a case where opinion evidence which was inadmissible in 2008 has become admissible in 2016. It is a case no different from many others where it has been demonstrated in 2016 that the opinions given in 2008 were incorrect and required qualification. There is greater force in the challenge to the opinions of Det Sgt Moon in relation to his experiments over Easter, but nothing relevantly turns on this, because those opinions were not before the jury.
Ground 1(c) in very large measure covers some of the same ground as ground 3. The evidence in this Court confirms that much of Det Sgt Moon's evidence was misleading or incorrect. It is not necessary to say anything more.
Leave to appeal on these grounds should be refused.

Ground 2 - the Crown's closing address

This ground is in a different category from the remainder. In very large measure, it is independent of the blood spatter evidence.
The Crown Prosecutor addressed on 26 March 2008, finishing before the luncheon adjournment. No complaint was made about any aspect of her address at the time. Ground 2 of the appeal was that the Crown Prosecutor's closing address caused the applicant's trial to miscarry. It was common ground that r 4 of the Criminal Appeal Rules did not apply in terms to complaints about the address which had not been raised before the primary judge, but that the rule did apply insofar as there was a failure to seek curative directions from the trial judge at the time.
Paragraphs 183-196 of DL's written submissions developed this proposed ground of appeal. Complaint was made of the following aspects of the address.
First, it was said that by asking rhetorical questions in closing address, the prosecutor reversed the onus of proof by calling for an explanation from DL, in accordance with what had been said in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [605]-[606]. By way of illustration, DL relied upon: "If the accused was not the killer why didn't he get help? If he had the motivation to step in and be the good samaritan he expects you to believe he was why didn't he get help at reception? At the shops? From passing cars from Entrance Road? Anywhere? Bianca Butcher, his mother?" and: "Ladies and gentlemen, if the accused was not the killer … why wasn't he motivated to go and get help, to scream out, to knock on doors?"
Secondly, DL pointed to the words "what a coincidence then that the real killer, if it's not the accused, is also the same age as the accused", saying that this was designed to bolster this part of the evidence of Ms Audley, notwithstanding that on the prosecution case, her identification of him was unreliable.
Thirdly, it was said that emphasising the fact that Ms Audley's identification as to age and hair accorded with DL, although what she had said in other respects (such as his white shirt and his bicycle which were, on the Crown case, incorrect) was said to be contrary to the prosecutor's obligation of fairness.
Fourthly, the prosecutor relied upon the evidence of the bloodstains on the clothing, the DNA of the deceased from those bloodstains, and the dying declarations as being "without more" sufficient to find guilt beyond reasonable doubt; it was said by the prosecutor that these were "simple, undeniable facts". DL complained that those submissions were not fairly made, given the necessary assumptions in the Crown case about the pattern of the bloodstains and the weaknesses in Det Sgt Moon's evidence.
Fifthly, DL complained about two "demonstrations" given by the prosecutor before the jury, labelled in the written submissions as "demonstration 1" and "demonstration 2" which were said not to permit the fact that the deceased was moving, despite that being the Crown case. It was also said that the demonstrations were "likely to arouse prejudice and emotion in the jury by their graphic nature". It was said that the nature of the demonstrations was to be inferred by a demonstration which Det Sgt Moon had given on the voir dire.
Sixthly, it was said that the prosecutor wrongly invited speculation by the jury as to the deceased's DNA being present in more bloodstains than had been tested ("who knows how many more locations you might think?"). Further, it was said that the prosecutor had misstated the evidence as to the DNA on a fence post at the commencement of the address when stating that only the profiles of the deceased and DL were present, contrary to the fact. Although the prosecutor subsequently and correctly referred the jury to the forensic evidence that could not exclude the possibility of a third profile, complaint was made of the fact that the prosecutor did not in terms correct what she had said earlier in the morning.
Finally, it was submitted that to the extent that grounds 1(a), (b) or (c) are upheld, then the foundations for the prosecutor's address insofar as it was based upon the evidence of Det Sgt Moon were taken away.
Nothing is added by the submission that the Crown accurately addressed the jury on blood spatter evidence which has subsequently been shown to be misleading or incorrect. That final aspect of the submission may be put to one side immediately.
All other aspects of this proposed ground are matters which are independent of the fresh expert evidence which has delayed the hearing and determination of this appeal by years. In addition to requiring a substantial extension of time, rule 4 applies.
Even so, we address each aspect of the ground on its merits in turn.
As to the first, DL's written submissions selectively quote the rhetorical questions of which complaint was made. The passages need to be evaluated in their context. The entirety of this aspect of the Crown prosecutor's submission was as follows: "If the accused was not the killer why didn't he get help? If he had the motivation to step in and be the good samaritan that he expects you to believe he was why didn't get help at reception? At the shops? From passing cars from Entrance Road? Anywhere? Bianca Butcher, his mother? The only person that he cared to get help for was himself. He [went] and got a band aid from Bianca Butcher. What did he say to her? That he fell over a rock and fell on something. Ladies and gentlemen, if the accused was not the killer but a good samaritan motivated enough to get in close enough to be stabbed by the real killer, the same knife that killed Tania, why wasn't he motivated to go and get help, to scream out, to knock on doors? It wasn't as though he was so traumatised that he fell in a heap or he couldn't speak. He hotfooted it to Bianca Butcher's and he was able to make an account of himself to her but it was a false account you might ready, very readily conclude ladies and gentlemen."
Viewed in its context, it is clear that rather than reversing the onus of proof, the prosecutor was in that portion of her address highlighting the implausibility of a defence case consistent with innocence by exposing its inconsistency with what the Crown had demonstrated DL had in fact done later that afternoon. This is quite different from the circumstance in Wood v R, where the Crown Prosecutor gave the jury a series of 50 questions which were directed to the ultimate issue, whether the deceased in that case had committed suicide or had been thrown from a cliff.
The difficulty with the second and third aspects of complaint on appeal, which turned on the reference to Ms Audley's evidence, is of a similar nature. Once again, the written submissions have been selective in the passages extracted. Immediately after the Crown Prosecutor had pointed to Ms Audley's recollection being consistent with DL's age and hair, the Crown prosecutor - entirely fairly - added "she was reasonably certain of some clothing which was a white polo shirt and grey board shorts and blue baseball hat." Further, the prosecutor then added that Ms Audley had made an incorrect identification at the time.
As to the fourth, the proposition that the DNA of the deceased obtained from bloodstains on the clothing, and the dying declarations, were a sufficient proof of guilt, was not subsequently elaborated upon by DL at the hearing of the appeal. That, it may be inferred, is for good reason. There was and is no dispute that the deceased's blood was found on DL's clothing. There was and is no dispute that, as she died, the deceased identified "[D], Year 10, Erina High" (although there is, of course, a dispute as to the meaning to be attributed to those words).
The thrust of the submissions was directed to Det Sgt Moon's evidence of multiple blood events. It is far from clear that there was any material unfairness here, but in any event, there is nothing that goes beyond the matters addressed in grounds 1 and 3.
In relation to the complaints about the "demonstrations", it is clear from the transcript that, whatever gestures were made by the Crown Prosecutor during her closing address, they were brief. What precisely the Crown Prosecutor did is unknown. DL chose to adduce no testimonial evidence from any person who saw what the Crown Prosecutor did some eight and a half years ago, and no complaint describing what she did was made at the time. Perhaps the best indication of the limited weight to be given to this aspect of the address was the response by defence counsel that afternoon: "You might also wonder how on the Crown's version that he is stabbing with his right hand and holding Tania Burgess down with his left that he manages to cut his palm because it is his left hand that has the wound (indicated). The Crown did a demonstration. Obviously from where I was sitting I couldn't see it but it just seems to be contrary to common sense that if that is what the Crown says was happening (indicated), that you can therefore sustain a cut across the inside of your palm (indicated)."
There is simply no basis in the evidence in this Court to make any meaningful assessment of whether any prejudice or emotion was engendered by what the Crown Prosecutor did. Since defence counsel at trial raised no complaint about it, this Court is entitled to infer that he saw no difficulty with what was done.
The submission that the prosecutor had replicated a demonstration given on the voir dire by Det Sgt Moon, which the judge had ruled against, on the basis that it was not a matter of expertise, is entirely speculative.
To the extent that there was invited speculation about the deceased's DNA being in more bloodstains than had been tested, there is some force in the criticism. What matters however is not the amount of blood, but that there was some blood unequivocally identified from the deceased's DNA found on the clothing of DL.
Likewise, it is difficult to accept that anything material could turn upon the difference between a mistake being made as to one aspect of the DNA evidence toward the beginning of the Crown address, which was subsequently correctly quoted, but without expressly stating that the earlier statement was an error, and the case where the error had been expressly acknowledged.
It will be clear from the foregoing that this proposed ground seeks to advance quite minor criticisms of limited aspects of the Crown Prosecutor's address. Some have been taken out of context. Some are not founded in the evidence, and amount to speculation in this Court. Some are minor in the extreme. No complaint was made at all at the time.
It is trite that "the requirements of r 4 [of the Criminal Appeal Rules] do not constitute some mere technicality which may simply be brushed aside": R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]. The Court added at [13]: "[L]eave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: R v Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported), at 7, followed in R v DH [2000] NSWCCA 360: '...unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level'."
We consider that except insofar as this ground overlaps with the complaints as to Det Sgt Moon's evidence as to the bloodstains, in which case the submissions are addressed under those grounds, leave should be refused. No possibility of real injustice has been demonstrated in respect of the other matters of which complaint is made.

The proviso

The fresh evidence and agreed position in this Court between Dr Reynolds and Det Sgt Moon means that the unchallenged evidence of the latter at trial was materially flawed. It would be a large step to say that it did not influence the jury: cf Castle v The Queen; Bucca v The Queen [2016] HCA 46; (2016) 91 ALJR 93 at [65]. Indeed, as one of the seven matters identified by the judge when summing up to the jury, it is necessary to proceed on the basis that it was material to the guilty verdict obtained. That was how, after all, it was advanced by the Crown and regarded by the trial judge.
Further, as already noted, this Court should proceed, notwithstanding the gaps in the evidence presented in support, on the basis that there was material procedural unfairness in the way in which Det Sgt Moon's evidence came to be presented. To be clear, by this is meant not the late service of the original report, but instead the experiments conducted over the Easter weekend leading to the threat of opinions unsupported by any expert report which would be exposed in the event of cross-examination or a Crown case in reply.
Recognising those matters, at the forefront of the Crown submissions in this Court was reliance upon the proviso. This was not a case where, as sometimes occurs, the Crown had, as an unelaborated fall-back position, relied upon the proviso (contrast for example Mortada v R [2014] NSWCCA 36 at [156]). The approach adopted in this Court by the Crown was appropriate, and permitted a full exchange of submissions as to the applicability of the proviso.

(a) Applicable legal principles

First, although expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied" the proviso must be applied: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [25]; Lindsay v The Queen (2015) 155 CLR 272; [2015] HCA 16 at [43]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15].
Secondly, the task of this Court is to establish whether a "substantial miscarriage of justice has actually occurred": Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [35]. In Filippou v The Queen at [15], French CJ, Bell, Keane and Nettle JJ said that a substantial miscarriage of justice meant that the possibility could not be excluded beyond reasonable doubt that the appellant had been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description.
Thirdly, there are three limbs in s 6 of the Criminal Appeal Act 1912 (NSW) in relation to which the proviso may operate: (a) where the verdict is unreasonable, or cannot be supported having regard to the evidence, (b) where there is a wrong decision on any question of law, and (c) where "on any other ground whatsoever there was a miscarriage of justice". It is not suggested that this is a case in the first category, nor could it be having regard to the nature and strength of the Crown case. The grounds of appeal relate to the second and third limbs. In Filippou at [15], French CJ, Bell, Keane and Nettle JJ said that: "[E]ven where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. ... [W]here the second limb applies, the circumstances in some cases may be such that, despite the judge making 'the wrong decision of [a] question of law', the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate."
Fourthly, there is the "negative proposition" identified in Weiss at [44]: "It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty."
Fifthly, even where the properly admitted evidence proves guilt beyond reasonable doubt, there remain cases where the proviso is inapplicable. This was what was emphasised in Baiada Poultry at [29] and in Castle at [64] (the position is different elsewhere: see Lundy v The Queen (New Zealand) [2013] UKPC 28 at [160]-[161] and Stafford v The State [1999] 1 WLR 2026 at 2029). Hence Bathurst CJ, with the agreement of Hidden and Button JJ, said in Giourtalis v R [2013] NSWCCA 216 at [84] that: "it is a necessary but not always a sufficient pre-condition for the operation of the proviso that the appellate court be persuaded beyond reasonable doubt that evidence properly admitted at the trial proved the guilt of the accused."
In Weiss at [45] the Court identified cases where there has been a significant denial of procedural fairness as possibly providing examples. In Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 at [89], French CJ identified a trial process which was "flawed in a fundamental respect" as falling into that category. In Nudd v The Queen [2006] HCA 9; 80 ALJR 614, Gleeson CJ explained that there may be some instances where a defect in process was of such nature that its effect could not be overcome by pointing to the strength of the prosecution case. His Honour gave as an example a case where the failure of process deprived the appellate court of the capacity justly to assess the strength of the case against the appellant.
There has been some debate as to the extent to which Filippou marked a change in construction of the proviso: see notably Petersen v State of Western Australia (2016) 50 WAR 45; [2016] WASCA 66 at [18]-[20] and note Castle at [80] (Gageler J). It is unnecessary to outline, let alone evaluate, that debate in this judgment. That is because on any view of the proviso, it is applicable to this conviction for murder.

(b) The strength of the Crown case

The Crown maintained that this was a very strong Crown case.
Much of the strength of the Crown case came about from the combined force of the following matters, which are wholly independent of the blood pattern evidence: 1. Four witnesses attended the scene after the victim had been stabbed and, in response to questions about who the attacker was, heard her say "[D], Year 10, Erina High". 2. All had clear recollections of Tania identifying the appellant's first name, his year at school, and the high school. The deceased had sufficient clarity of mind to reject a proposition put to her in which another boy was nominated as the attacker, and specifically named the applicant. Of course, for all four witnesses, the event was highly traumatic but it is inherently plausible that all four would have clear recollections of the dying words of the deceased. The probative value of those recollections is, in our view, substantial, and unaffected by other errors in their recollection (notably, Ms Audley's misidentification of the killer). 3. A short time thereafter, police enquiries of the principal at the particular school confirmed there was a "[D]" in year 10 and, having identified the applicant, police seized bloodstained clothing at his home. Some of the bloodstains were those of the deceased. 4. DL gave three different versions of how he cut his hand to three witnesses: that he had fallen on a rock, that he had cut his hand on a rose bush, and on barbed wire. 5. The appellant attempted to flee when police attended at his home.
None of that evidence was controversial. Nor does that evidence exhaust the Crown case against DL. There were other aspects which were more equivocal, including: 1. Blood with DNA profiles of DL and the deceased was found on a fence post on the road at the front of the resort. 2. The lacerations to the inside of DL's left hand were consistent with having been inflicted by a short-bladed knife such as that used to kill the deceased. 3. Ms Audley saw a single boy stabbing the deceased. She did not observe any other person in the vicinity. 4. Ms Butcher when she saw DL and gave him a tea towel, said that there was a great deal of blood on him: "It was just like everywhere, like down his arms, on his shirt". 5. DL's mother gave evidence that he had a waterproof watch with a velcro band at the time of Tania's death. A watch with the brand "Pipeline" and a velcro band was located at the scene. The watch had blood stains on it. The deceased's mother gave evidence that all of Tania's property had been recovered. Necessarily, it did not belong to her. 6. A fellow inmate at the juvenile detention centre gave evidence that DL had told him three (inconsistent) accounts. One was that "he stabbed the girl but jumped over a putt putt golf fence and that's how he got the slice in his hand". Another was that "he was waiting behind the bushes and she got off the bus and he stabbed her. The only reason why he stopped stabbing her was because the knife cut his hand". The significance of that testimony is that it contains details (the putt putt golf fence, the deceased getting off the bus) which suggest that they must have been derived from what DL had said. We note that the third account was that DL had tried to stop an assailant and had been injured with the knife in his attempt to do so.
Against the force of that case, there is the consideration that if what Ms Audley had seen were correct, not nearly enough blood had been found on his clothes. There were other inconsistencies in the evidence of Ms Audley (in relation to her evidence that he was riding a bike and wearing a white shirt, together with the fact that she failed to identify him). It will also be noted that the cut to DL's left hand was to the inside of the hand. There was of course no real evidence of any motive, and DL was a person of good character.
However, the key limitation in the doubts sought to be raised by the defence summarised above is that they tend to detract only from the less equivocal aspects of the Crown case. None undermines the force of the dying declarations, the arrest of DL at his home as he sought to flee, and the recovery of his clothes stained with the blood of the deceased.
To that end, and for good reason, DL made quite elaborate submissions directed to creating doubt in what flowed from the dying declarations.
First, the defence pointed to the evidence that shortly before the deceased became unconscious, she would "develop some clouding of consciousness". However, the evidence at trial undermines the force of this submission. The repeated triple-0 calls to the Ambulance Service, which were played to the jury, and transcripts of which were tendered, constitute a contemporaneous and reliable record of the timing. The first triple-0 call was made at 3:56pm and the victim was described as conscious, breathing and (significantly) "completely awake". The caller was told to call back if the victim's injury changed. The Crown called an officer from the NSW Ambulance Service who had prepared a report dealing with the incident. His report was not tendered, but in cross-examination he was able to identify the last call taking place at 4:06pm. The response notification gave that time and referred to "CB", meaning call back, and recorded "patient now unconscious". That corresponds with the final transcript where the caller stated, "She's lost consciousness" repeatedly and, when asked whether the victim was still breathing, said, "Yeah, she's breathing, she's just lost consciousness." At the conclusion of that call, the caller said, "I can hear sirens", and the evidence established that the ambulance officers arrived at the scene at 4:11pm. When they arrived, the deceased had no pulse and was not breathing.
The consequence is that the contemporaneous evidence of the triple-0 calls demonstrates beyond all doubt that there were at least 10 minutes during which the victim was in the presence of the four witnesses before she lost consciousness. The idea underlying this aspect of DL's case, that what all four witnesses heard came at the very end of the time which elapsed as the deceased died, is implausible in the extreme. And it is squarely inconsistent with the evidence of one of the four witnesses (Ms Sneesby) who recalled hearing the deceased speaking approximately three times, each time saying "[D], Year 10, Erina High". It is also inconsistent with the capacity of Tania to reject a proposition put to her that her attacker was a different named individual, nominating instead the applicant.
Secondly, accepting that DL was identified by the deceased as she died, DL stressed that it does not follow that she was identifying her assailant. However, the clear recollection of at least two of the witnesses was that the deceased was answering questions as to who had attacked her. 1. Ms Audley said that the deceased was asked, "Do you know who did this to you? Do you know who attacked you?", at which stage LC interjected and asked, "Was it [Troy or some other boy's name]?" and Ms Audley said, "It wasn't until after then that the victim went, no - she didn't actually say 'No' she shook her head and said, 'it was [D], Year 10, Erina High". Ms Lawrence said that she asked, "Do you know who did this?", and that the answer was, "Yes, his name is [D] and he is in Year 10 at Erina High". 2. The evidence of one of the school children, LC, was slightly different. He recalled that he said "Who did this to you? Was it the same person who attacked your mother?" to which she replied "I don't know, but it was [D] from Year 10 at Erina High". In order to understand that evidence, it is necessary to say that the deceased's mother gave evidence that on 17 June 2005 a young boy dressed in school uniform walked into her house saying that he was looking for somebody. She told her daughter about the incident the following day, but did not say (because she did not know) who it was.
That is powerful evidence, from people with no motive to lie, who were understandably traumatised by the horrific scene confronting them, but who nevertheless might be expected to have the clear recollection which they professed to have of the deceased's repeated nomination of "[D], Year 10, Erina High" as her attacker.
In our view, although the dying declarations could not be tested, they were in the circumstances of this trial very powerful evidence identifying DL as the assailant. Their force is not undercut by the submissions advanced by DL on appeal.
No attempt was made to undermine the DNA analysis of some of the blood stains on DL's clothing which demonstrated beyond all doubt that DL had been in close contact with the deceased at the time she was attacked.
In those circumstances, the position is analogous to, if not even stronger than, the "compelling inference" to which the High Court referred in The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 at [50]-[51]: "the compelling inference is that he was the last person to see his wife alive and was the only person who knew the circumstances of her death. That inference did not, of course, diminish the overall burden on the prosecution of proving beyond reasonable doubt all elements of the offence of murder with which the respondent was charged. In the case of circumstantial evidence, the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence. However, where an accused person with knowledge of the facts is silent, then as was said in Weissensteiner v The Queen: 'In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' That passage was quoted with approval in RPS v The Queen. The significance to be attached to what was said in Weissensteiner must be understood in its context, as explained in Azzopardi v The Queen. Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses. It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source". [Citations omitted.]
So too here. If there were facts which explained the victim's repeated identification of DL as she died and her blood on his clothes, they were facts which were within the knowledge of DL.
The aspects of the evidence referred to are sufficient of themselves to establish DL's guilt to the criminal standard.
To all of the foregoing must now be added the agreed position of Dr Reynolds and Det Sgt Moon. True it is that there were significant and material errors by Det Sgt Moon in his evidence in 2008. However, Dr Reynolds confirmed the correctness of Det Sgt Moon's evidence in 2008 concerning the small drops of blood found behind the right shoulder of DL's sweatshirt (coincidentally, the evidence which was inaccurately summarised by the defence counsel in closing address and was corrected the following morning). As earlier noted, Dr Reynolds confirmed that: "These small bloodstains are of a size, shape, distribution and location such that they are likely a result of deposition by cast-off mechanism. [Tania] is the likely contributor of these bloodstains. In the limited instructions provided to this author regarding the appellant's versions of events it is difficult to reconcile the presence of these bloodstains with that version."
Once again, if there were facts that explained the presence of the deceased's blood behind his right shoulder otherwise than by their having been cast off as a knife in his right hand was used repeatedly to stab her, those facts were within the knowledge of DL.
The response advanced by Ms Bashir to the strength of this evidence was that it was not "conclusive". She referred to "the agreement between the parties that the upshot of the blood pattern analysis evidence is that it's inconclusive". Of course, that is correct; both blood spatter experts agreed that their opinions could never be conclusive. Such evidence cannot of itself demonstrate beyond all doubt any person's guilt.
Dr Reynolds suggested that more experiments could be done to test whether there might be other hypotheses consistent with innocence for those blood stains. It is not possible meaningfully to assess whether there is any realistic possibility of such experiments being performed, let alone what they might show.
However, the fact that, 11 years later, and despite the considerable efforts which have been directed to fresh evidence in this case, DL is presently unable even to advance a scenario consistent with innocence whereby the victim's blood has been spattered behind his right shoulder, tellingly confirms the force of this evidence.
We understood Ms Bashir to advance a submission that because the blood spatter evidence was material in 2008, and because (so it was said) the defence would be quite different in light of what is now known of its deficiencies and limitations, there should be a new trial. Her submissions included: "[T]he force of the defence case, it must have changed, altered immeasurably would change immeasurably if the blood pattern analysis evidence that's been before this Court was before that Court, and so applying the Gallagher test which has that lower threshold in our submission, looking at the fresh evidence that's before this Court, looking at all of the evidence together, this Court would order a new trial. … As the question here and the sole question in the trial was a question of identity, the blood pattern analysis evidence was presented as powerful evidence of identity. That's what it was relied on to identify the wearer of the jumper as the assailant, and it was used in that context where Ms Audley had not identified the applicant, so in our submission, to say that the blood pattern analysis evidence could be put to one side when this Court looks to the proviso, is wrong."
To the extent that DL submitted that for such reasons the proviso was inapplicable, we do not agree. The fact that there was material evidence before the jury from Det Sgt Moon which was unreliable is merely the premise to the operation of the proviso. Where as here DL's guilt was established beyond reasonable doubt by the balance of the evidence excluding the blood spatter evidence, and if the blood spatter evidence now available to this Court merely strengthens the Crown case, the proviso is available. Those matters lead us to be satisfied beyond reasonable doubt that DL murdered the deceased.

Was there a fair trial?

We are conscious of the fact that it is not sufficient for this Court to be satisfied beyond reasonable doubt that DL murdered the deceased, in order to apply the proviso. We acknowledge that there is at least a risk that there was a denial of procedural fairness in the way Det Sgt Moon's experiments over the Easter weekend were prepared and communicated to the defence.
However, the evidence now available demonstrates that the most critical aspect of Det Sgt Moon's evidence was correct. Although much of his opinion, including that based upon directionality and amount of blood, cannot safely be relied upon, he and Dr Reynolds agree that the bloodstains consistent with the profile of the deceased behind the right shoulder of the jacket are "difficult to reconcile" with any defence scenario. With all of the advantages of hindsight, there would have been no cross-examination on that aspect of Det Sgt Moon's evidence irrespective of any denial of procedural fairness. That is to say, even if the defence had had access to Dr Reynolds at trial in 2008, there would still have been no basis for cross-examination of this aspect of Det Sgt Moon's evidence. Nor would there have been a defence case.
Accordingly, this is not a case where the trial miscarried in such a way that it is not possible to assess the strength of the Crown case. To the extent the jury was exposed to evidence to which it should not have been exposed, the strength of that evidence has now been exhaustively assessed on appeal. Although material parts were inaccurate or misleading, the common position of the experts was that "it is difficult to reconcile" the presence of the linear cast off bloodstains on the right shoulder of the jacket with any scenario advanced on behalf of DL. This is not a case, such as Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, where no opportunity has been provided to answer the inferences which flow from the DNA evidence relating to those bloodstains. It follows that to the extent that there was a denial of procedural fairness to DL in 2008, it is not a denial that precludes the application of the proviso.

Conclusion on appeal against conviction

For those reasons, there should be an extension of time and grant of leave in relation to proposed grounds 1(a), 1(c) and 3. Leave should otherwise be refused. The appeal against conviction must be dismissed.

Amendments 13 April 2017 - Paragraph [1] - citation corrected. Paragraph [128] - citation corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (37)

Cited By (2)