Court of Appeal (WA)|2005-06-23|Before: Wheeler JA

Hillstead v The Queen [2005] WASCA 116 (23 June 2005)

HILLSTEAD -v- THE QUEEN [2005] WASCA 116 (23 June 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Evidence - Expert opinion evidence - Duty of prosecution and expert witness - Duty to explain opinion so that the jury may decide whether or not to accept it - Duty to express any qualification to the opinion

Criminal Law - Rule in Browne v Dunn - Part of defence case not put

Beamish v The Queen [2005] WASCA 62

Davie v Magistrates of Edinburgh (1953) SC 34

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1

Mickelberg v The Queen (2004) 29 WAR 13

Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999

Minhaj v The Queen [2000] WASCA 52

Oliverio v The Queen [1993] SASC 4341; (1993) 61 SASR 354

Pollock v Wellington (1996) 15 WAR 1

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Broadhurst v The Queen [1964] AC 441

Christie v The Queen [2005] WASCA 55

Cornelius & Briggs v The Queen (1988) 34 A Crim R 49

Fry v The Queen, unreported; CCA SCt of WA; Library No 8945; 12 July 1991

Jackson v The Queen [1990] WAR 105

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Khoo v The Queen, unreported; CCA SCt of WA; Library No 960184; 2 April 1996

Mitchell v The Queen (1998) 20 WAR 257

Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333

Monaghan v The Queen (1990) 3 WAR 466

O'Connor v The Queen, unreported; CCA SCt of WA; Library No 940525; 22 September 1994

R v Kostaras (No 2) [2003] SASC 323; (2003) 86 SASR 541

Scott v Cameron (1980) 26 SASR 321

Stern v National Australia Bank [2000] FCA 294; (2000) 171 ALR 192

Van Leeuwen v The Queen (1981) 36 ALR 591

Webb v O'Sullivan [1952] SASR 65

Zoneff v The Queen (2000) 200 CLR 234

1 WHEELER JA: The facts relevant to this appeal are set out in the reasons for decision of Pullin JA. I am generally in agreement with those reasons, and with the additional observations of Roberts-Smith JA.

2 However, I wish to set out briefly my own reasons for quashing the appellant's conviction, based upon the new evidence in this case. The evidence does not, in my view, either show the appellant to be innocent, or lead in my mind to such a doubt as to his guilt that the verdict should not be allowed to stand (cf Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516).

3 It is, however, evidence of a most unusual nature, in that it is evidence which removes the only element of the prosecution case which was objectively and conclusively inconsistent with the appellant's innocence. All other aspects of the story told by the appellant, implausible as they may have been, were potentially consistent with the objective facts described by the prosecution witnesses. Depending upon the view of the appellant's credibility formed by the jury, it would have been possible for the appellant to have been acquitted, but for the evidence of Senior Sergeant Jones which, as presented at trial, established that it was as a matter of objective scientific fact, impossible for the appellant's finger and palm prints to have been made at any time other than the time of the killing. That was, no doubt, why his Honour mentioned that fact more than once to the jury.

4 In the light of the importance of the evidence it is, as Roberts-Smith JA notes, very surprising that no attention was apparently given to this issue prior to trial. Counsel for the appellant concedes that it was an "oversight" not to cross-examine the Senior Sergeant at trial, but I agree with Roberts-Smith JA that the oversight was at an earlier stage. In any event, however, there plainly was a serious oversight by counsel, leading to the new evidence not being available at trial.

5 It is the combination of the actual unavailability of the evidence at trial, and the unusually critical and compelling nature of the evidence which it now in effect replaces, which leads me to the view that there has been a miscarriage of justice in this case.

6 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment of Pullin JA. Subject to what follows, I agree with his Honour's reasons and conclusions.

7 At trial, there was a powerful circumstantial case against the appellant. It is troubling that the Barnett report (or such a report from

another expert) was not obtained until after conviction - and a long time after, at that. The appellant was convicted on 9 September 2003. He had been arrested on 28 July 2002. The report is dated 14 February 2005.

8 Given the appellant's evidence, the "defence case" must from the outset have been that the bloody finger and palm prints had been made some seven hours after the death of the deceased. It must always have been apparent that in light of the compelling circumstantial evidence, the evidence as to the contemporaneity of the prints was crucial. It has not been suggested that an expert report to the effect of the Barnett report could not have been obtained prior to trial. It is also troubling that given the crucial nature of this evidence, Senior Sergeant Jones was not asked any question about it in cross-examination; nor was it put to him that the prints may have been made some seven hours after the death.

9 I fully appreciate the point made by Pullin JA that counsel may have been hesitant to do so because he may have been fearful that such cross-examination might have elicited a substantial and convincing scientific basis for the unqualified opinion. However, as now appears, Senior Sergeant Jones would have qualified the opinion had he been asked. Given its obvious importance, one might expect counsel or his instructing solicitor would have canvassed the point with the expert witness prior to trial - and if that had been done, presumably the Senior Sergeant would have expressed the qualification and it could have been put to him in cross-examination knowing what the answer would be. Alternatively, the query could have been raised with some other expert, whose information could then have been used to challenge the witness in cross-examination. For the matter now to be raised for the first time on this appeal in these circumstances, is most unsatisfactory. Counsel frankly conceded in his outline of submissions, that his failure to challenge this evidence at trial was "an appalling oversight". I have to agree.

10 Had it been the situation that Senior Sergeant Jones was drawn to the qualification only by reason of what was in the Barnett report, so that without that, he would not have made it at trial if asked, there would have been no qualification for him or the prosecution to disclose. It would have been necessary in that situation to consider the effect of the failure of the appellant's counsel to deal with the issue at trial (see Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1; R v Birks (1990) 48 A Crim R 385; Oliverio v The Queen [1993] SASC 4341; (1993) 61 SASR 354; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92). But that was not the situation and so the point must be approached on the basis explained by Pullin JA. That approach must be tempered by the fact that whilst the crucial nature of Senior Sergeant Jones' evidence of the contemporaneity of the prints must (or ought to) have been appreciated by the appellant's legal representatives from the outset, the prosecution would not have had that same appreciation. Certainly the prosecution had cause to regard that evidence as significant; but it was, from the Crown's viewpoint, just another item of evidence in a strong circumstantial case. What made it crucial was the appellant's explanation of how he may have (innocently) left the bloody prints some seven hours later. And the prosecution was not made aware of that explanation until the appellant gave evidence at trial.

11 The Barnett report is not "fresh evidence"; with reasonable diligence, it could have been made available before trial (Beamish v The Queen [2005] WASCA 62, [9]). The test is whether the new evidence either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand (Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1, at [15]; Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 520). A conviction will not be set aside if the new evidence reveals no more than a likelihood that the jury would have returned a verdict of not guilty (Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 per Mason J at 675 - 676). This requires an assessment of what the position would have been had the evidence been given at trial.

12 Counsel for the respondent contends there was "no way" the jury, acting reasonably, would not have rejected the appellant's evidence (which he describes as "patently fanciful") and not been satisfied beyond reasonable doubt of his guilt, even had this evidence been before them. He points to a number of matters, including the appellant's account that he lived alone with the deceased who was a close friend and when he came back to the house he found the deceased murdered but did nothing to get help, go to the police, nor indeed check to ascertain whether or not the perpetrator was still in the house. He said he simply found the murder weapon and ammunition in a bag and decided to take them with him. He decided there and then to move out, but although he left the house he locked the door and took the keys with him. Subsequently he returned and took a VCR and other property. In short, he retained control of the house by keeping it locked while he had the keys, knowing that the deceased's corpse was inside, while he took steps to remove items of value. There was evidence to suggest he had a familiarity with the murder weapon in that even though the police officer who found the shotgun had difficulty removing a cartridge from it whilst trying to make it safe, the appellant had demonstrated no such difficulty. The evidence showed he removed a cartridge and put it in the bin at the unit before inserting another cartridge into the barrel.

13 The behaviour of the appellant was bizarre on either account. If he was the murderer he kept possession of the murder weapon and other items from the house which would inevitably have tied him to the killing and he increased his risk of being detected by returning there some hours afterwards. On the other hand, if he was not the murderer, his conduct was such as to necessarily put him under grave suspicion that he was.

14 Counsel for the appellant contends there was a direct attack on the appellant's credibility on a vital issue (whether he was present at the time of death or some hours later) when unbeknown to counsel or the prosecutor, there was evidence capable of supporting the appellant on that issue. That contention must be rejected. The new evidence could not have had that effect. It is certainly not evidence which shows the appellant to be innocent. As appears clearly from the Barnett report and the affidavit of Senior Sergeant Jones, the evidence would not have been that the prints were made up to seven hours later, but that they could have been. At its highest, therefore, the new evidence would not have been inconsistent with the appellant's account - and nor would it have been inconsistent with the Crown case. The trial Judge would have to have directed the jury that the evidence of the blood prints was consistent with either version and could not be relied upon as tending to prove any more than that the appellant was at the scene at some time within the period from the death of the deceased up to seven hours later.

15 The new evidence, regarded in that way, has to be weighed against all the other evidence in the case. Had the appellant not given evidence there could not have been any reason to conclude the verdict should not stand. However, he did do so, and given the great emphasis the trial Judge and the prosecutor gave to the unqualified evidence of Senior Sergeant Jones, it is probable if not inevitable that the jury accepted that and concluded on the basis of it, that the appellant's account had to be rejected. The unqualified opinion of Senior Sergeant Jones that the blood prints were made about the time of the killing was the only evidence inconsistent with the appellant's account; it was the only evidence for which he had no explanation. Although bizarre on any view, as I have said, his testimony was specific and clear and he did not resile in any way in cross-examination from what he had said in chief. Absent the unqualified evidence that the blood prints were made contemporaneously with the killing, it is simply impossible for this Court to say what view the jury would have taken of the appellant's testimony. Whether it would at

least have caused the jury to have a reasonable doubt that he was the killer is simply imponderable and cannot be known.

16 The evidence is not such as to raise a doubt about the appellant's guilt in the sense in which that expression was used in Ratten. However, it does go fundamentally to the fairness of the trial. The authoritative judicial pronouncements on the test to be applied with respect to new evidence are predicated on a conviction which is "... regularly obtained after a fair trial" (per Mason J in Lawless v The Queen (supra) at 676). The evidence which was crucial to the appellant's credibility at trial is now shown to have been critically flawed; there is necessarily relevant unfairness in the appellant's guilt being determined by the jury on a demonstrably false basis, however occasioned. That being so, the conviction must be quashed.

17 PULLIN JA: The appellant was convicted of wilful murder after a trial before Miller J and a jury. The appellant appeals against that conviction.

18 The deceased was 66 years old. He lived in rented accommodation at a house in Shepperton Road, Victoria Park. The landlord was a Ms Watters. The appellant said he moved into the house about four days before the murder. The deceased slept in a bedroom which during the trial was called "bedroom 4". The appellant slept in another bedroom in the house. The deceased owned a Suzuki hatchback motor vehicle and a limousine. The deceased worked as a limousine driver and owned the limousine for the purpose of running his limousine business. At other times he worked as a process server, serving court documents. The appellant and the deceased had known each other for approximately 18 months.

19 On the evening of Tuesday 23 July 2002 the deceased went to a Freemasons' Masonic meeting in Mount Lawley and was seen there by an independent witness. The deceased left the meeting at 10 pm to 10.10 pm.

20 The deceased was killed on Wednesday 24 July 2002. His body was not found until the morning of Saturday 27 July 2002. On that morning the landlady Ms Watters went to the house. She unlocked the door, went inside and in bedroom 4 she found the body of the deceased lying face down on the floor. She could see that he was dead and could see blood "everywhere". His body was partly covered by a doona. The deceased had been clubbed a large number of times on the head. When his body

was examined it was found that he had a piece of rope around his neck. The expert opinion called at the trial was that he had been killed by one of the blows to the head. Blood was splattered onto the walls of the bedroom and some had been deposited when blood was cast off by the murder weapon as it was raised in an arc and fell again on the head of the deceased.

21 A police forensic investigation officer, a Senior Sergeant Jones was called in to help in the investigation. During the course of investigations a photograph of a near naked woman was found on the bed of the deceased. On this photograph two fingerprints were detected. As examination of the room continued, Senior Sergeant Jones discovered a right palm print on the melamine shelf above the deceased's bed. Both the fingerprints and the palm print were visible because in the opinion of Senior Sergeant Jones, the hand and fingers had blood on them when they touched the photograph and the shelf.

22 Senior Sergeant Jones and another expert signed a report dated 11 June 2003 which was tendered into evidence. It read:

"1. In our opinion, the size, position and distribution of the spattered bloodstains observed on the vertical surfaces proximate to the pillowed end of the single bed in bedroom 4 strongly indicate that a minimum of three blows were struck upon the head of the victim (ROBERTS) in all likelihood, as he lay on the bed.

2. It is our opinion that the linear bloodstain patterns observed on the bedroom ceiling are associated (Conclusion point 1) cast-off bloodstains and were created when droplets of blood have been projected away from a bloodied object or instrument arcing through the air.

3. ...

4. No bloodstains or bloodstain patterns were observed to indicate that a blow or blows were struck to the victim (ROBERTS) whilst he was lying, on or near, floor level in bedroom 4. Whilst it is not inconceivable that another intervening surface(s) may have prevented deposition of blood onto the surfaces examined, it is the opinion of the authors that this is highly unlikely.

5. It is the opinion of signatory JONES that the bloodstain (adjacent to ID label MRE 7) displaying friction ridge detail observed on the shelving above the single bed in bedroom 4 (later identified) is from an area of palm print that had pre-existing blood present on the skin surface and not the skin surface contacting a pre-existing bloodstain.

6. It is the opinion of signatory JONES that the bloodstain displaying friction ridge detail observed on the photograph (exhibit MG 77 and later identified) is from an area of fingerprint that had pre-existing blood present on the skin surface and not the skin surface contacting a pre-existing bloodstain.

7. ...

8. The bloodstains observed on the door and doorframe of Bedroom 4, and on the vertical wall surface immediately outside the entrance to Bedroom 4 appear to be cast-off bloodstains and the position and distribution of these stains indicate the door was in a partially open position during events that resulted in blood deposition.

9. ...

10. It is the author's opinion, that the events that brought about the deposition of blood on all surfaces examined in Bedroom 4, occurred contemporaneously."

The fingerprints and palm print were those of the appellant.

23 Subsequently on Sunday 28 July 2002 the appellant was arrested while driving the Suzuki motor vehicle which belonged to the deceased. It was admitted by the appellant that he was then staying at a unit at Burswood Lodge, Rivervale. He had checked in at about midday on Wednesday 24 July 2002.

24 When the police examined the unit, they found on the couch a sawn-off shotgun. Testing revealed DNA belonging to the deceased on the shotgun. Further investigation revealed that two small pieces of wood found on the floor of the deceased's bedroom had come from the handle of the shotgun. An examination of the wounds and the shotgun revealed that some of the wounds were caused by the trigger guard on the shotgun. The State case was, therefore, that the shotgun was the murder weapon which had been used as a club.

25 In a suitcase next to the shotgun on the couch in the Burswood Lodge unit, was one of the deceased's mobile phones. The appellant's wallet was found on the lawn, about 150 metres or so away from the unit. Within the wallet were credit cards belonging to the deceased man. One of the credit cards had been used a month before by the deceased to buy a video recorder. A pawnbroker gave evidence that around midday on Wednesday 24 July 2002, the appellant pawned the deceased's video recorder along with another mobile phone belonging to the deceased and a distinctive ring belonging to the deceased.

26 In addition, within the appellant's unit at Burswood Lodge, the police found a polo shirt and although there was not visible blood on it, it reacted for blood when treated chemically. It revealed a mixture of blood. A forensic scientist gave evidence that the probability was that the deceased's blood was on the polo shirt.

27 Without more, this was a powerful circumstantial case against the appellant. He had the murder weapon in his possession; his fingerprints and palm print were found at the scene; he disappeared after the death of the deceased; he had stolen property belonging to the deceased.

28 However the appellant gave evidence on oath in his defence. His case was that he did not assault or kill the deceased. His evidence was as follows.

29 He was staying with the deceased at the Shepperton Road house. He had been invited to do so by the deceased. The deceased had lent him his Suzuki motor vehicle which he had been using for about six months. On Tuesday night of 23 July 2002 the deceased went to the Freemasons' meeting. The deceased returned to the Shepperton Road house at about 10.30 pm on Tuesday night. The appellant was then at the house. The deceased said that he had limousine job to attend to but that he was tired and asked the appellant if the appellant would do the driving job for him. The appellant agreed. The appellant said that he was given the deceased's mobile phone and the keys to the limousine. He drove the limousine to Leederville to pick up a person who was to be driven to Scarborough. He waited there and then took a person from Scarborough to the Hip-E-Club in Leederville. This was in the early hours of Wednesday 24 July 2002. He then drove back to the Shepperton Road house and arrived there at about 3 am to 3.30 am. He went into the house, noticed the light on the in the deceased's bedroom and went to his bedroom. He there saw the body of the deceased lying on the floor next to his bed. The appellant touched the deceased to see if he was alive. He decided he was dead. He got a "blanket or something" and placed it across the body. He said that he panicked, left the house.

30 He said he went to a friend's place at Armadale where he remained for a while. He then went to Burswood Lodge and booked a room there. After he had booked the room he then went back to the Shepperton Road house to pick up his clothes at about 10.30 to 11 am (ie about seven hours after he first saw the body of the deceased). He went to the deceased's bedroom to "reassure myself that what I had seen earlier wasn't - you know, was correct. So I pulled the blanket back." (T/s 189) He said that he touched the body again with his right hand and realised the deceased was dead. He said that he knew there were some photographs in the room which belonged to him. He stood on the top of the deceased's bed and rummaged around on the shelf above the bed to see if the photographs were there. He used his right hand to steady himself by placing his right hand on the shelf. He could not recall finding the photographs.

31 He admitted taking the deceased's ring, his credit cards and the mobile phone which was in the deceased's bedroom. He admitted taking the video recorder. He admitted pawning the video recorder, the telephone and the ring. He said that he already had another mobile phone belonging to the deceased as a result of going on the limousine drive on 24 July.

32 Having searched for the photographs in the deceased's room he then went to his own bedroom. He found in his bedroom a burgundy coloured carry bag which was not his. He looked inside it and saw the shotgun and 20 shotgun cartridges. He said these items did not belong to him. He said that he grabbed the bag and put it into his suitcase and took it back to the Burswood Lodge.

33 In short, the appellant admitted stealing the deceased's goods and admitted having the murder weapon in his possession but denied that he had assaulted the deceased and denied that he had anything to do with his murder.

The testimony of Senior Sergeant Jones and the trial Judge's reference to it

34 In those circumstances the evidence of Senior Sergeant Jones and the evidence that in his opinion the fingerprint and palm prints were made "contemporaneously" with the cast-off blood marks on the walls was powerful evidence in the prosecution case. As well as Senior Sergeant Jones' report being tendered into evidence, he gave oral testimony during examination-in-chief. He was asked questions about his written report as follows (recorded at t/s 121):

"Your final conclusion, conclusion 10, is that the events that brought about the blood deposition occurred contemporaneously?---Yes.

What leads you to that conclusion?---I did not - when considering all of the bloodstains in total, I did not observe any significant variations in drying rates or any significant clotting that one would expect to appear had the events causing the blood deposition occurred at different times.

In relation to the bloodstained fingerprint on the photograph and the bloodstained hand print on the shelf, what are you able to tell use about the time of those in relation to the composition of the blood?---Once again, generally speaking, they occurred contemporaneously with the rest of the bloodstains present in bedroom 4."

35 When the trial Judge summed up, he mentioned the evidence about the contemporaneous deposition of the blood on at least eight occasions. I will give details of some of those occasions. His Honour said (t/s 274):

"Now, having said those few things Mr Foreman and members of the jury, let's look at how the crown presents its case. It did it fairly shortly and briefly really. Mr Dempster addressed you for only a relatively a [sic] short period of time because he said the crown case is overwhelming. The submission he made was: all roads lead to the accused. His fingerprints were there in the deceased's blood at the scene and he stressed, and it's very much the crown case, that the blood deposited by the fingers and the palm was deposited contemporaneously with the other blood found on the wall, not 7 hours later as the accused testified.

On that point, it's important I think that I should read you the evidence about this point about contemporaneous fingerprints, palm print and blood." (The italics have been added by me).

36 His Honour then took exhibit "Y", being the report of Sergeant Jones, and read from it and then read the oral evidence which I have set out above.

"So it's on that that the crown relies very heavily in its submission to you that clearly the accused was there at the time of the death of the deceased. Mr Dempster says that is a very strong evidence but there is more."

38 His Honour then referred to the evidence about the stolen items.

39 When reviewing the defence case his Honour said (t/s 281):

"... so Mr Watters suggests the evidence supports what the accused says, that he touched him and got blood on his hand, then touched the shelf and the photo, but of course you will bear in mind the crown prosecution, the crown case, that if the blood was contemporaneously left there, with the blood of the deceased on the wall and everywhere else it's hard to see how that could have happened 7 hours later. I'm not saying that; the crown is saying that.

...

As to the print on the shelf, he says the position was on the palm below the figures. The accused said he steadied himself and he says the evidence supports this; there were no prints on the top of the shelf but along the ridge of the shelf. So Mr Watters submits to you if the accused did this, you would expect prints all over the house and the room. Sergeant Jones said the blood left was contemporaneous with the blood which had been shed from the deceased, but, Mr Watters says, there's no evidence of drying times in relation to blood, but I read you the passage from Sergeant Jones' evidence. There's no need to reread it." (I have added the italics).

40 His Honour therefore emphasised the importance of the evidence about the contemporaneous placement of the fingerprints and the deposit of cast-off blood marks in the room. It was of course very powerful evidence and it is not at all surprising that the jury found the appellant guilty of wilful murder.

41 After the trial, counsel for the appellant sought and obtained from a "criminalist" a Peter D Barnett from Richmond, California, a report headed "Evaluation of Bloody Fingerprints". Accompanying the report was a curriculum vitae. It revealed Mr Barnett to be a fellow of the American Academy of Forensic Sciences (Criminalistics Section), member of the California Association of Criminalists, a member of the American Society for Testing and Materials and member of the Forensic Science Society, Great Britain (Affiliate). In his report which referred to the evidence which was led in the case, he said (vol 3, p 8 - 10):

"It is not always evident whether the blood portion of a bloody friction ridge impression represents the ridges or the furrows of the skin surface. If the skin makes light contact with a source of wet blood (or other serous fluid) so that only the ridges are coated with blood, the bloody areas of the impression resulting from a subsequent touching of some object represents the ridges on the original finger. On the other hand, if the quantity of blood on the friction ridge surface is sufficient to fill the valleys between ridges, then the bloody lines in the subsequent impression produced may be caused by the blood in the furrows between ridges. In general, it is not possible to distinguish between these two circumstances by examination of the impression.

The amount and condition of the blood transferred to a finger is dependent on the nature of the source of the blood, and the details of the contact between the blood and the friction ridge skin. The scene photographs show at least four areas with significant blood pools: two on the bed and two on the floor. There may have been other pools of blood on the decedent's body or clothing. If these pools of blood were still liquid when they were touched by Mr Hillstead, the amount of blood that transferred to his hands could have been sufficient to produce the fingerprints depicted in the photographs supplied.

The critical issue in this case is the condition of the blood that Mr Hillstead touched. It is difficult, if not impossible, to determine if blood was present several hours after the initial assault that could have transferred to Mr Hillstead's hands, or if such blood would only have been present a few minutes after the original assault. Environmental variables (temperature, humidity, air movement), the location of the blood which may enhance or impede the drying process, the amount of blood present in a pool or other location that Mr Hillstead may have touched, and the manner in which any contact occurred are among the factors that might have influenced the nature of the blood on his hands.

Further, the time between the contact with the source of the blood and the production of the bloody impression, and the amount and condition of the blood transferred to the skin, will affect the appearance of the impression. Dry blood on the ridge surfaces may adhere to the skin while wetter blood in the intervening furrows will be transferred to the contact surface leaving a negative impression. Alternatively, a thin coating of blood which is only on the surface may still be moist enough to transfer to the contact surface leaving a ridge impression. Another possibility is that wet blood on the skin surface may be forced into the furrows resulting in a negative impression."

"It is not possible to determine the condition of any source of blood at the scene at any particular point in time from the available evidence. Hence, the condition of bloodstains that Mr Hillstead may have contacted at any point in time cannot be determined.

Without knowledge of the condition of the blood which Mr Hillstead might have encountered at any particular point in time, the nature of the blood transferred to his skin when he come [sic] into contact with the blood is unknown.

The appearance of the bloody friction ridge impressions at the scene is dependent on the condition of the blood on Mr Hillstead's skin when the impressions were produced. Because the condition of the blood which was contacted, and the nature of the blood transferred to the hands, is not known, the condition of the blood on Mr Hillstead's skin at the time the impressions were made cannot be known.

It is not possible to determine if the impressions were made the first time Mr Hillstead was exposed to blood from the decedent's injuries, or at some later time."

The amendment of the notice of appeal to add ground 10

43 As a result of this report, the appellant added a new ground 10 which contends that the verdict of the jury in respect of the conviction "was unsafe and unsatisfactory having regard to new evidence that has emerged since the hearing of the Trial, which evidence was not known, disclosed or available at the time of the Trial or could reasonably have been discovered." Particulars of the fresh evidence were given and those particulars identified the Barnett report.

44 Arrangements were made for this Court to receive Mr Barnett's evidence by video-link, but after the report was shown to the prosecution, Senior Sergeant Jones deposed in an affidavit dated 22 April 2005 that:

"2. On 5th September 2003 I gave evidence that in my opinion the blood deposition, generally speaking, occurred contemporaneously. Annexed hereto and marked with the letter 'A' is a copy of transcript page 121 which includes the relevant passage of my evidence in chief.

3. I was not cross-examined at all as to the issue of the timing of blood deposition. Had I been asked if it was possible that Hillstead had placed his fingers in the victim's blood some hours later and subsequently deposited bloodstained fingerprints on surfaces, I would have conceded that as a possibility."

45 A copy of this was sent to counsel for the appellant by the DPP with a letter which read:

"I refer to previous correspondence and now enclose a copy of the affidavit of Bryn Melvin Jones which is about to be filed. In light of that I again confirm that I no longer wish to cross-examine your expert and a video link is unnecessary. I assume that you will incorporate the report of your client's expert and the Bryn Jones affidavit in the appeal book."

46 The appellant's case is that this new evidence shows that there has been a miscarriage of justice. The possibility that the fingerprints and palm prints on the appellant's case were made at least seven hours after the death of the deceased is consistent with the appellant's evidence. The new evidence alters the unqualified nature of the evidence about the contemporaneity of the deposition of the blood by the appellant's palm and fingers and the other blood in the room.

Legal requirements in relation to expert evidence

47 There are a number of requirements to be observed if expert opinion is to be led as evidence in a case. They were discussed in detail by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 79.

48 Two of those requirements are important here. The first is a requirement, not restricted to experts but imposed on all witnesses by the oath, which is to tell the truth and the whole truth. Thus, an expert who forms an opinion which is subject to a qualification should not express the opinion without disclosing the qualification: the second requirement is the requirement imposed on an expert to fully explain the way the opinion is formed. Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: Pollock v Wellington (1996) 15 WAR 1 at 3 - 4; Makita (Australia) Pty Ltd v Sprowles (supra) at [81]. In short, it is a primary duty imposed on experts in giving opinion evidence to furnish the trier of fact with the criteria to enable the evaluation of the expert conclusion: Makita (Australia) Pty Ltd v Sprowles at [59].

49 In criminal cases the prosecutor has a clear duty to acquaint the Judge and jury in ordinary language, through the evidence which is led, with those aspects of the expert's discipline and methods necessary to put the court in a position to make some sort of evaluation of the opinion that the expert expresses. Where the evidence is of a comparatively novel kind, the duty resting on the prosecutor is even higher. Then the evidence should demonstrate the scientific reliability of the opinion expressed: Lewis v The Queen [1987] NTCCA 3; (1987) 88 FLR 104 at 123 - 124 per Maurice J; Makita (Australia) Pty Ltd v Sprowles (supra) at [73]. It is the role of the prosecutor to strip forensic evidence of its mystery so far as is possible. The "bare ipse dixit" of a scientist upon an issue in controversy should carry little weight. See Davie v Magistrates of Edinburgh (1953) SC 34 at 39 - 40. (An "ipse dixit" is an unproved assertion resting on the bare authority of the speaker). If the opinion is a "ipse dixit" then as Heydon JA said in Makita (Australia) Pty Ltd v Sprowles at [62], the opposing party will have two choices. The first is to cross-examine in the dark "with the perils which usually face journeys into darkness", and the second is not to cross-examine and run the risk of the court attaching weight to the opinion, ill-substantiated though it may be on its face.

50 The unqualified opinion expressed by Senior Sergeant Jones in his written report was that the fingerprints and palm print in blood were deposited contemporaneously with the other impact and cast-off blood stains. In his oral evidence he repeated this and when asked again said that the blood deposition "generally speaking" occurred contemporaneously.

51 There are two deficiencies in this evidence. The first is apparent on the face of the report and a reading of his evidence. The second is revealed by his affidavit.

52 On the face of the written report no explanation was given at all as to why Senior Sergeant Jones held the opinion that the deposition of blood on all surfaces "occurred contemporaneously". When giving his oral evidence he purported to give a reason for his opinion when he said that he "did not observe any significant variation in drying rates or any significant clotting that one would expect to appear had the events causing the blood deposition occurred at different times." In my opinion the written report contained an unproved assertion, an "ipse dixit"; and the oral explanation did not, in my opinion, provide the jury with sufficient criteria for testing the accuracy of the opinion about contemporaneity. It touched on factors which I assume would be relevant to the explanation, but did not provide any information to allow the jury to decide whether the unqualified opinion was right or wrong. That is the first deficiency.

53 Senior Sergeant Jones now says in his affidavit that if he had been asked in cross-examination he would have conceded that it was possible that the appellant had placed his fingers in the victim's blood some hours later and subsequently deposited blood stained fingers on surfaces. It does not appear from his affidavit that it was only after reading the Barnett report that he came to realise that it was possible that the palm and fingerprints were deposited hours after the murder occurred. He merely says that if asked at the trial, he would have acknowledged the possibility in cross-examination. That being so, the only conclusion that can be drawn is that Senior Sergeant Jones' opinion about contemporaneity of deposition of the blood droplets and the fingerprints was not an unqualified opinion. The qualification should have been voiced in the written report, or if realised only after preparing the report, then disclosed to the DPP who would then have had a duty to disclose that qualification to the appellant's solicitor. At the very least the qualification should have been expressed in his oral evidence. That is the second deficiency.

54 The opinion that the fingerprints and the blood droplets were contemporaneous was critical evidence which put the appellant at the scene when the murder occurred. The prosecution referred to it as important evidence. The trial Judge during his summing-up stressed how important it was.

The significance of lack of cross-examination of Senior Sergeant Jones concerning his contemporaneity opinion

55 The State points to the fact that counsel omitted to cross-examine Senior Sergeant Jones and submits that this breached the rule in Browne v Dunn (1893) 6 R 67. The rule in Browne v Dunn is a rule of professional practice, which is a general requirement, subject to various qualifications, that a cross-examiner must put to an opponent's witness matters in respect of which or by reason of which it is intended to contradict that witness' evidence. The purpose of the rule is to secure fairness in the conduct of adversary proceedings. The rule applies not only to civil cases but also to criminal cases, although there are difficulties concerning the operation of the rule in criminal trials. See the discussion in R v Birks (1990) 19 NSWLR 677 per Gleeson CJ.

56 Counsel for the appellant concedes that he did not cross-examine Senior Sergeant Jones by oversight. In my opinion, this concession does not affect the outcome in this appeal, because even if counsel had directed his attention to whether or not he should cross-examine Senior Sergeant Jones, he may have been in two minds about whether to do so. Because the unqualified opinion about the contemporaneity was not explained, counsel may have been fearful that cross-examination of Senior Sergeant Jones would have drawn out a substantial and convincing scientific basis for the unqualified opinion. It is not likely that counsel would have expected the concession which has now been made by Senior Sergeant Jones.

57 In my opinion the lack of explanation for the contemporaneity opinion, coupled with the failure to disclose the qualification which Senior Sergeant Jones now concedes he would have expressed if he had been asked, means that there had been unfairness in the conduct of the prosecution case which is anterior to, and makes irrelevant, the concession that cross-examination on the point was overlooked. It is therefore unnecessary to consider cases which discuss whether the incompetence of counsel may amount to a miscarriage of justice; see for example Birks (supra); D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92 at [196].

58 The Barnett report and the affidavit of Senior Sergeant Jones is further evidence which has been adduced without objection by either party at this appeal. Further evidence advanced at the hearing of an appeal may be "fresh" evidence or "new" evidence. The distinction between the two is that "fresh" evidence must be evidence which did not exist at the time of the trial or which could not then, with reasonable diligence have been discovered. "New" evidence is evidence which was available at the trial or which could, with reasonable diligence have been discovered. See Beamish v The Queen [2005] WASCA 62 at [9]; Mickelberg v The Queen (2004) 29 WAR 13 at [416].

59 In this case no attempt has been made to suggest that the Barnett report and the affidavit of Senior Sergeant Jones is fresh evidence. With reasonable diligence the appellant could have retained an expert before the trial. Appellant's counsel could have cross-examined Senior Sergeant Jones and elicited the information (even though he should not have been driven to do so). The Barnett report and the affidavit of Senior Sergeant Jones is "new" evidence which has been adduced on the hearing of this appeal by consent. The question then arises as to what use may be made of it.

60 If it is to affect the outcome of this appeal, it must be shown that the new evidence establishes that a miscarriage of justice has occurred: see Mickelberg v The Queen (2004) 29 WAR 13 at [416] and Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999. If the evidence is contested then credibility and cogency of the new evidence must be considered. In this case the new evidence is not contested. It must therefore be accepted that the new evidence is both credible and cogent.

61 New evidence will reveal a miscarriage of justice only if it shows that the appellant is innocent or "raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand": Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 at [15]; Mickelberg v The Queen (2004) 29 WAR 13 at [413]. What was critical in this case was whether or not the jury believed the appellant. In the light of the expert evidence about the contemporaneous deposit of blood it is highly likely that the jury concluded that the appellant's evidence could not be believed. If the expert evidence had been that the finger and palm print may have been placed on the surfaces later, then the jury would have assessed his evidence and credibility without feeling compelled to reject his evidence. They would then have been able to assess his evidence, taking into account the possibility that the finger and palm prints were placed there later. This raises such a doubt about his guilt in my mind that the verdict should not be allowed to stand. That conclusion is enhanced because the opinion expressed in the written report and orally was not explained in a way which would allow the jury to decide whether or not to accept the opinion about the contemporaneous deposit of blood.

62 For that reason the conviction must be quashed and there should be a re-trial.

63 This ground of appeal is that the trial Judge erred in overruling the objection to the tender of three photographs showing the injuries to the head of the deceased. They were tendered for the purpose of demonstrating that some of the wounds on the deceased appeared to have been caused by the shotgun which the State said was the murder weapon. The State's case was that the shotgun was held by the barrel and the top of the trigger caused some unusual markings as did other parts of the gun. Counsel for the appellant objected on the ground that the photographs were unfairly prejudicial. A pathologist Dr Cadden was called and when he came to the point of referring to the three photographs, his Honour gave the follow direction to the jury:

"Mr Foreman and members of the jury, Dr Cadden is going to refer to some photographs which are post-mortem photographs. These photographs are pretty graphic, as you can imagine. Normally I wouldn't allow photographs of this type to go to the jury because they are so graphic and they can have a prejudicial effect upon people but in certain circumstances it's important forensically that witness refer to such photographs, and this is such a case, so I have limited them to three photographs so that Dr Cadden can refer to his conclusions by reference to what he actually saw on the head of the deceased as depicted in the photos.

I know that can be done by diagrams but in this case I think it's important that you do see the photographs, but as I say, beware, be careful. Be careful when you look at these photographs not to be influenced in a way that might excite prejudice against the accused person. We are of course I suppose in our everyday life exposed to a lot of violence on television. Every news item every night show continued war and conflict in the Middle East and so on and so we do see plenty of television images and indeed newspaper photograph images of death, destruction and wounding and so on, so I think to a certain extent we are inured to it, so I probably don't have to give you a warning as strong as I would have done in days past when we didn't see as much of that, but at the same time this is real life and as distinct from what you see on films and so on, it can have quite an effect on you.

So all I ask you to do is be clinical about it. Look at the photographs for the purpose of listening to the evidence and considering the evidence of Dr Cadden in his evidence about matching wounds to the weapon which he has formed the opinion caused those wounds. Thank you. Go ahead."

64 Dr Cadden then used the photographs to explain how some of the injuries corresponded with the weapon.

65 It is true that on some occasions the prejudicial effect of photographs may unfairly exceed their probative value. In that case they should not be admitted into evidence. See the discussion in R v Zammit [1999] NSWCCA 65; [1999] 107 A Crim R 489 at 415 and see also Minhaj v The Queen [2000] WASCA 52 at [14] - [20]. Evidence is not unfairly prejudicial merely because it strengthens the prosecution case. It is only unfairly prejudicial if the jury are likely to give it more weight than it deserves or when it may inflame the jury or divert the jury from its task: R v Festa [2001] HCA 72; (2001) 208 CLR 593.

66 In my opinion the photographs were not unfairly prejudicial and his Honour's warning to the jury was sufficient to ensure that the jury concentrated on their probative value. I would dismiss this ground of appeal.

67 In view of my conclusion that the conviction should be quashed by reason of the matters raised in relation to ground 10, it is not necessary to consider the other grounds of appeal against conviction because they were about the conduct of the particular trial.

68 I would therefore uphold ground 10, allow the appeal against conviction, quash the conviction and direct a re-trial. As a result, it is not necessary to consider the appeal against sentence and that should be dismissed.

Hillstead v The Queen [2005] WASCA 116

At a glance

Court

Decision date

Before

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Source

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Judgment (133 paragraphs)

Hillstead v The Queen [2005] WASCA 116 (23 June 2005)

HILLSTEAD -v- THE QUEEN [2005] WASCA 116 (23 June 2005)

Parties

Cases Cited (25)