Court of Appeal (WA)|2007-08-29|Before: Buss JA

OBLAK -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 176 (29 August 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : OBLAK -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 176

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Whether verdict of guilty unreasonable or cannot be supported having regard to the evidence - Whether trial Judge erred in allowing into evidence testimony of witness in relation to a bloodstained Tshirt - Whether expert evidence - Whether trial Judge erred in allowing evidence of knife found at scene of crime to be adduced - Turns on own facts

1 BUSS JA: I agree with Miller JA that leave to appeal should be refused, for the reasons he gives, subject to the remarks which follow.

2 Section 30 of the Criminal Appeals Act 2004 (WA) applies to an offender's appeal against conviction. By s 30(3):

"The Court of Appeal must allow the appeal if in its opinion -

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice."

3 Section 30(4) provides that, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

4 Where evidence is received at a criminal trial without objection and the trial Judge makes no ruling on its admission, there is no wrong decision by the Judge on a question of law, within s 30(3)(b) of the Criminal Appeals Act. See R v Soma [2003] HCA 13; (2003) 212 CLR 299 at 303 - 304 [11], 324 [79].

5 In the present case, the appellant's counsel at trial did not object to the evidence of Ms Lynette Tolliday concerning the "blood-stained T-shirt" and the learned Judge therefore did not make a ruling on its admission. Accordingly, ground 1, which alleges that his Honour erred in law by permitting that evidence to be adduced, is misconceived and must fail.

6 Where inadmissible evidence is given at a criminal trial without objection, and the accused is convicted, an appeal based on the receipt of that evidence will not be allowed unless this Court is satisfied that the admission of the relevant evidence constituted a "miscarriage of justice" within s 30(3)(c) of the Criminal Appeals Act. See Soma at 324 [79]; Birks v The State of Western Australia [2007] WASCA 29; (2007) 168 A Crim R 350 at 363 - 364 [47]. If the accused alleges, on appeal, that a miscarriage of

justice has occurred, it will be necessary to consider at least two issues. First, whether the evidence was technically admissible. Secondly, if the evidence was technically inadmissible, whether the accused's counsel at trial failed to object for rational forensic reasons so that, in the circumstances, no miscarriage of justice occurred.

7 As to the first issue I have mentioned, it is unnecessary, in this appeal, to determine whether Ms Tolliday's evidence as to the blood-stained T-shirt was technically admissible. I note, however, the observation in Wigmore on Evidence (Chadbourn revision, vol 2, 1979) at page 783 [568], in the context of what topics there are upon which a layperson in his or her ordinary experience is incapable of acquiring knowledge and forming opinions on medical and chemical matters:

"Of the particular topics most frequently arising for decision, it has been generally held that special qualification is not required upon the question whether a stain is of blood."

8 As to the second issue I have mentioned, it is apparent that the appellant's counsel at trial did not object to Ms Tolliday's evidence as to the blood-stained T-shirt for rational forensic reasons. In particular:

(a) the appellant's case at trial was, relevantly, that Ms Tolliday's son, David Tolliday, had killed the deceased;

(b) in her prior inconsistent statement, Ms Tolliday had said that when they went out on the night in question the appellant was wearing jeans and a polo-type shirt, not a T-shirt;

(c) Ms Tolliday agreed in cross-examination that David Tolliday regularly carried knives, had problems with drugs, often was impulsive, and frequently was involved in fights; and

(d) the blood-stained T-shirt was found under David Tolliday's bed at Ms Tolliday's home.

9 Even if Ms Tolliday's evidence as to the blood-stained T-shirt was technically inadmissible, for the reasons which Miller JA gives and in the circumstances I have mentioned at [8] above, there was no miscarriage of justice.

10 MILLER JA: This is an application for leave to appeal from a conviction for wilful murder. The application for leave and the hearing of the appeal were referred to the Court of Appeal by order of Roberts-Smith JA, dated 16 March 2007.

11 The appellant was tried before Templeman J and a jury on an indictment which alleged that on 16 July 2003 at Innaloo he wilfully murdered Celeste Assunta Vitale ("the deceased"). He was convicted on 19 August 2005 of the crime of wilful murder and sentenced on 28 October 2005 to life imprisonment with a minimum term before eligibility for parole of 25 years.

12 The appellant seeks leave to appeal on three grounds. They are:

"1. The learned trial judge erred in law in [sic] by allowing into evidence the testimony of Lynette Delia Tolliday concerning the 'blood-stained T-shirt' to be adduced to the jury.

The learned trial judge erred in law by allowing the evidence of a knife found at the scene of the crime, to be adduced to the jury.
The learned jury's verdict of guilty was unsafe and unsatisfactory by reason of the issues raised in grounds one and two and the unreliability of the crucial evidence of Lynette Tolliday."

13 This summary of the evidence at trial is taken from the learned trial Judge's directions to the jury, about which no complaint was made upon the hearing of the appeal.

14 Prior to 16 July 2003, the appellant and the deceased were in a relationship. It had commenced in 2001, but had ended some time towards the end of 2002 or in 2003.

15 For a period of time, the precise details of which were unknown, the appellant and the deceased had lived together. There was a period when they lived in Midland and, at that time, the appellant's friend, David Tolliday, lived with them. There was another period during which the appellant and the deceased lived in Meckering. The deceased apparently disliked Meckering and stayed for only three weeks. She then returned to live with her mother.

16 It was admitted at the trial that the deceased was, on 16 July 2003, 16-1/2 weeks pregnant with the appellant's child. The appellant also had a four-year-old daughter at that time.

17 On 16 July 2003, the appellant travelled from Meckering to Perth. He came by train. He had made arrangements to stay at the house occupied by David Tolliday. David Tolliday's mother, Lynette, and his aunt, Tania McGuinness, both resided there as well. They said in evidence that they had been asked by David Tolliday whether it would be all right for the appellant to stay on Wednesday, 16 July.

18 At 4.37 pm on 16 July, there was a telephone call from the East Perth train station to the deceased's mobile telephone. The prosecution case was that the call was made by the appellant to the deceased to make arrangements to meet her later that day.

19 On 16 July 2003, the deceased was staying at the home of her father in Rivervale. Her brother, David Vitale, was also there. David Vitale gave evidence that the deceased left the Rivervale residence between 4 and 5 pm on 16 July 2003, stating that she was going to the Innaloo cinema to meet the appellant.

20 Between 6.30 and 7 pm on 16 July 2003, Lynette Tolliday drove the appellant and her son, David, to the Whitfords train station. They had said that they were going to the Innaloo cinema.

21 At 7.03 pm, there was a telephone call from the Stirling train station public telephone to the deceased's mobile telephone. The prosecution case was that the call was made by the appellant to the deceased to see where she was.

22 At 7.14 pm, a person named Scot called Swan Taxis. He arranged to be collected at the Stirling train station and he was taken by taxi to Camberwarra Drive in Craigie, the street in which the Tollidays resided. He was then taken back in the same taxi, almost immediately, to the Stirling train station. He was accompanied at the time by David Tolliday, who was seated in the back of the taxi. The taxi driver gave evidence that the man sitting in the front seat (who clearly was the appellant) told him that he had a child and another on the way. The taxi arrived back at the Stirling train station at 7.49 pm. At that time, a telephone call was made from the Stirling train station public telephone to the deceased's mobile telephone. It was the prosecution case that it was the appellant ringing the deceased.

23 At 7.51 pm on 16 July 2003, $20 was withdrawn from the deceased's bank account. The withdrawal occurred at an ATM at the Perth train station. The next train leaving the Perth train station for the Stirling train station was scheduled to leave at 8.02 pm and to arrive at the Stirling train station at 8.11 pm. The train after that left at 8.32 pm and would have arrived at the Stirling train station at 8.41 pm. The prosecution case was that the deceased caught the first available train after 7.51 pm and therefore would have arrived at the Stirling train station at 8.11 pm.

24 Some time after this, the deceased was stabbed to death on a bush track which led from the Stirling train station to the Innaloo cinema complex. She was stabbed four times in the abdominal region. According to the evidence of the forensic pathologist, Dr Karin Margolius, one of the wounds was such that the deceased would have died "pretty rapidly". She was likely to have become unconscious extremely quickly and she would then have slowly bled to death.

25 A knife was found in the vicinity of the deceased's body, but there was no evidence to suggest that it was the knife which had killed her, or that it had been in the possession of the appellant at any time.

26 The appellant made a missing person's report to police on 6 August 2003. The appellant said that he had walked to the Innaloo cinema complex from the Glendalough train station and that he had met the deceased at the Innaloo cinema complex. He said that he had argued with her, following which she walked away from him.

27 These statements were relied upon by the prosecution as evidence of a lie told by the appellant and one which evidenced a consciousness of guilt. The prosecution contention was that the appellant had never gone to the Innaloo cinema complex from Glendalough, but had gone from the Stirling train station, if he went there at all.

28 The appellant also said in the missing person's report that he had not met David Tolliday until late on the night of 16 July 2003, some time after 8 pm. This, too, was relied upon as a lie which evidenced a consciousness of guilt. The prosecution case was that the appellant was in company with David Tolliday from early in the afternoon of 16 July 2003.

29 The prosecution case was that the deceased had arrived at the Stirling train station and had there met the appellant and David Tolliday. The three had then walked along a shortcut track through the bush from the Stirling train station towards the Innaloo cinema complex. Somewhere along that bush track, the appellant had stabbed the deceased four times and caused her death. The prosecution contended that the three were together because David Tolliday later told police where the body of the deceased was. It was claimed that he could only have known where the body was if he had been there at the time of the deceased's death. (The body was off the track and was only discovered some weeks after 16 July 2003.)

30 The prosecution contended that an inference could be drawn that the appellant and David Tolliday were together from the time they left the house at Camberwarra Drive to go to the Whitfords train station; when they returned by taxi to Camberwarra Drive; when they were driven in the taxi back to the Stirling train station and thereafter until the following morning.

31 The prosecution case was a circumstantial one. It was alleged that the appellant had a motive to kill the deceased. That motive was said to be because she would be a nuisance to him now that she was pregnant. He would have a financial commitment to her and to the child, and therefore had good reason to "get rid" of her.

32 As the stabbings were in the abdominal region, the prosecution contended that an inference could be drawn that they were perpetrated by somebody who was angry about the deceased's pregnancy or at least wanted to bring it to an end.

33 The prosecution relied upon the evidence of Ms Tolliday that a bloodstained T-shirt had been found under David Tolliday's bed on the Saturday or Sunday after 16 July 2003. Ms Tolliday gave evidence that this bloodstained T-shirt was the same colour as that which she saw worn by the appellant on 16 July 2003.

34 Ms Tolliday testified that on the night that she had dropped off the appellant and her son at the Whitfords train station, the appellant was wearing a creamy-coloured T-shirt. She said:

"Did you notice when you dropped Scot Oblak off what he was wearing?---He was wearing a white denim jacket, a buff or creamy coloured T-shirt and pale coloured jeans which I think were white but they could possibly have been a pale blue."

35 Ms Tolliday testified that a few days later she found a buff or creamy-coloured T-shirt at the end of her son's bed. Her evidence was:

"A few days later were you in David's room when you noticed something?---Yes. I was trying to just make sure the room was all right for my mother to sleep in. She was going to stay that night and David hadn't returned at that point.

Can you say how much later on the Wednesday that was?---It would have been I think the Saturday night. It could have been the Sunday but I'm pretty sure it was Saturday night.

That's the Saturday or Sunday after the Wednesday you were just talking about?---Yes.

Did you notice something particularly in relation to David's bed, or under David's bed?---I found a pair of socks at the foot of the bed and I picked them up because David's socks are putrid and I could then see there was something up the other end of the bed and when I went up there there was I think two articles of clothing. There was a buff or creamy coloured T-shirt and I think there was something, a darker piece of clothing there. I only picked up the T-shirt.

Did you notice something about the T-shirt? You say it was buff colour?---Yes.

Had you seen that colour of T-shirt before?---It's the same colour as the one that Scot had been wearing on the Wednesday night.

Did you notice when it was under the bed and you say you have picked it up - did you notice anything about it?---It was bloodstained.

Was there a lot of blood on it? Can you describe it?---There was quite a lot of blood and it was sort of in streaks across the T-shirt rather - rather than in blobs or blotches.

Did you do anything about that?---I was annoyed. It appeared to be a good quality T-shirt. I was annoyed that it had been left there. It was dry. You know, bloodstained things basically should be soaked if you want to get them clean, so I was annoyed that it had been left under the bed and not put in the wash.

Did you do anything with the T-shirt?---No, I thought, 'I'm not dealing with this. It's his problem, he can sort it out.'

Did you ever see the shirt again after that time?---Not that I recall, no."

36 Ms Tolliday was vigorously cross-examined in relation to a prior inconsistent statement made on 26 August 2003 in which she said that what she had found was a polo-type shirt. She agreed that this was different from the evidence she had given in court. She agreed that she had originally thought that the shirt was a black and white flecked T-shirt that had a collar. She agreed that in August 2003 she was unable to recall whether this shirt had been worn by the appellant or her son on the night of 16 July 2003.

37 It is important to reproduce portions of her cross-examination which were as follows:

"You would agree with me that a description of a cream or buff coloured shirt is quite different to the shirt that you described in your statement of 2003?---Yes, I would.

You would agree with me that your memory of - your memory back on 26 August 2003, that's when you - would you agree that's when you signed your statement?---Yes, I would.

Did you give the statement on the same day as you signed it?---Yes, I did, I think. If it's a Tuesday then, yes. If it's a Wednesday then it's the day after.

Okay; and in relation to that you would agree with me that your memory back in 2003 of this incident would be better then than it would now?---Not necessarily, no, I wouldn't.

...

Are you suggesting that you evidence - sorry, that your statement you gave on 26 August 03 was not true?---I'm suggesting that it was correct as to my recollection at that time.

It was correct as to your recollection at that time?---That's correct.

And at that time you were recollecting back a number of days. Is that correct?---Well, I was in a state of shock at what had occurred around me and what I had been advised of.

You were asked, when you were giving your statement, weren't you, 'Can you recall what Scot or David were wearing that night'?---That's correct.

And you thought back about it and to the best of your ability you indicated that Scot was wearing jeans and a polo-type shirt. Is that correct?---That I thought he was wearing jeans and a polo-type shirt.

And that you thought that they were both wearing jackets?---That's correct.

And that you thought that David was probably wearing tracksuit pants and a T-shirt?---That's correct.

And that the T-shirt that you got out from under the bed, to the best of your recollection in August 2003, was a black and white flecked shirt?---At that time that was the best of my recollection, yes.

At that time?---Yes.

So you are saying that now you have signed a statement back in August of 2005?---Yes. Last week, yes.

Changing what Mr Oblak was wearing?---Yes.

And you would agree with me it goes completely contrary to your statement of 26 August 2003 in that regard?---In the colour of the T-shirt, yes.

...

And now some two years later in another statement you are suggesting that you - not only is it not a black and white flecked shirt, you are saying that you think it was a cream shirt?---The statement was made last week. The recollection was within a week of making the original statement."

"DEMPSTER, MR: You said at one point that your memory in August 2003 was not necessarily better than now?---That's correct.

Can you explain what you mean by that?---Sometimes when - when the original statement was made, it was - I can't remember if it was the day we first spoke to the police or the next day to be honest, but I think I was in a state of shock to a degree, numb and still disbelieving that all of this was happening. I was in an odd, pokey little room with an officer asking me questions and saying, 'Are you sure? Are you pretty sure? How sure are you?' that it becomes very, very difficult and to a large extent blank, and I was also trying to recall events from a month ago that I'd had no reason to recall. To me it was frustrating to not be sure about things. The T-shirt bothered me and I would go to sleep thinking about it and I would wake up in the middle of the night with a visual picture of this T shirt in my hand which is when I realised that the description in the statement was wrong. I still wake up seeing that T-shirt in my hand.

Is there a particular reason why you say you recall the colour cream?---I don't like cream and white as a combination and I recall noting the combination when we were standing in the kitchen talking and just sort of thinking, 'I wouldn't wear that T-shirt with a white jacket,' because - no, it's just not a good colour combination to me and that's why it sort of came back to me.

Was there some connection with who was wearing the T-shirt, the colour?---Only that David didn't wear white denim jackets and Scott [sic] I could recall was wearing one, and I recall when I dropped them at the train station and they were walking away from me, sort of the back view, with no disrespect to anyone, I recalled the song Mr Whippy by John Farnham where he used to wear a white denim jacket and white jeans. It's just odd things that flick into the mind gradually came back."

39 The defence case was that there was no evidence to implicate the appellant in the death of the deceased. In particular, there was no evidence before the Court as to exactly what had happened to the deceased after 7.49 pm on 16 July 2003: there was no murder weapon; there was no DNA; and there was no forensic evidence at all to connect the appellant with the killing. The knife which was found near the body was not suggested to be one which had been used in the killing. Nor was it suggested that it had ever been in the possession of the appellant.

40 The defence contended that the evidence of Ms Tolliday was too unreliable for the jury to rely upon. The defence also pointed to the character of David Tolliday. He was alleged to be a drug user, using a range of drugs which included amphetamine, heroin and morphine. His mother, Ms Tolliday, had admitted that he was a drug user. She had also admitted that he was aggressive, suffered from ADD and had got into fights. A neighbour had given evidence that he was "short-fused" and regularly carried a knife or knives. The neighbour also testified that she thought David Tolliday was somewhat jealous of the relationship between the appellant and the deceased and that David Tolliday did not like the deceased. She gave evidence that they had "yelling arguments".

41 The defence submitted that the jury could conclude that either before arriving at the Innaloo cinema complex or perhaps returning from it, the deceased met her death on the bush track in circumstances where something had erupted between herself and David Tolliday. It was suggested that David Tolliday, in an aggressive fit or a fit of temper, or perhaps under the influence of drugs, had taken out a short-bladed knife and stabbed the deceased four times in quick succession, doing so in the presence of the appellant and in circumstances which were entirely unexpected by him.

42 The defence accepted that the appellant had made a false statement to police when making out a missing person's report. It was contended, however, that the falsity was not something which resulted from a consciousness of guilt, but by way of a misguided attempt to protect David Tolliday, or perhaps to distance himself from the events which had occurred.

43 The defence relied upon evidence from Ms Tolliday about problems experienced by her son. She said in cross-examination:

"Okay. You were aware that he was diagnosed with ADD?---Yes, I was.

And you are aware that he got into lots of fights?---He started to get into fights as an older teenager, I suppose, yes.

You are also aware that he would often carry knives?---Yes.

Can you tell me what sort of knives he used to carry?---Pocketknives, although he did once come home with a machete down his trousers.

A pocketknife or a machete down his trousers?---Yes.

When you say pocketknives, were they knives that could fold out?---Yes.

When they were folded out would they be some 22 centimetres long?---Could you give me - I'm not goon [sic] on measurements, I'm sorry. Highly unlikely the ones that I ever saw - smaller than that.

Smaller than that?---Yeah.

Are you aware that he got into trouble with the law for carrying weapons?---I know he was charged certainly on one occasion. There might have been a second occasion where he was charged with carrying a knife, yes.

Certainly - could it be three occasions where - - -?---It's possible. David did not - I mean, if it was when David wasn't living at home I wouldn't necessarily have known about it.

You are also aware that your son had problems with drugs?---Yes.

And that his behaviour was often impulsive?---Yes.

And that he would fail to consider the consequences of his actions?---Yes.

When I say are you aware of drugs, you are aware that he was taking heroin?---Yes.

Amphetamines?---Yes.

And that he was injecting those drugs?---Yes.

You are aware that amphetamines can cause people to be aggressive?---They can.

And you saw him exhibit outbursts of anger, did you not?---Yes."

"The situation is such that you are concerned for your son, aren't you?---Of course I am.

And that you don't want to think that your son may have been involved in a matter such as what we are in court today for. Is that correct?---I have never been known to protect my son from the consequences of his actions and if that includes standing up in a court of law and testifying against him, I would do that."

45 This ground contends that the learned trial Judge erred in law by allowing into evidence the testimony of Ms Tolliday that she found a bloodstained T-shirt which was similar to that being worn by the appellant on the night of 16 July 2003. The challenge to the evidence on this ground is based upon the fact that Ms Tolliday purported to identify blood stains on the T-shirt when she had no expertise which would have enabled her to reach that conclusion. It is complained that her evidence was in the nature of expert testimony and she should not therefore have been allowed to testify that, in her opinion, the stain she saw was blood.

46 At trial, there was no objection to the evidence of Ms Tolliday about the identification of blood on the T-shirt. In fact, it seems to have been accepted that what Ms Tolliday saw on the T-shirt was blood. The following passages indicate the approach of the cross-examiner:

"You also say that when you looked at that T-shirt, you picked it up and you saw that it had blood on it. Is that correct?---That's right.

...

And you never saw the bloodstained T-shirt again?---No.

Nor did you look for it?---No, I didn't.

...

After seeing this bloodstained shirt, I think you indicated that the blood was dry blood. Is that correct?---That's correct."

47 No forensic examination was conducted on the T-shirt. This was presumably because the T-shirt was never located. Ms Tolliday said that she never saw it again. Ms Tolliday gave no evidence that she had any expertise in identifying blood, but she was not challenged about the conclusion she reached.

48 I have referred to the evidence of Ms Tolliday as to what she saw on the T-shirt. The critical passage is as follows:

"Did you notice when it was under the bed and you say you have picked it up - did you notice anything about it?---It was bloodstained.

Was there a lot of blood on it? Can you describe it?---There was quite a lot of blood and it was sort of in streaks across the T-shirt rather - rather than in blobs or blotches."

As I have pointed out, there was no objection to this evidence. In cross-examination, the T-shirt was referred to as a "bloodstained T-shirt". Further cross-examination accepted that the blood was "dry blood".

49 Normally, a conclusion that stains on an object were bloodstains would constitute evidence of opinion. Such evidence would call for expertise.

50 In Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, Dixon CJ at 491 stated the rule of evidence relating to the admissibility of expert testimony in the following terms:

"The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J W Smith in the notes to Carter v Boehm, 1 Smith LC, 7th ed (1876) p 577. 'On the one hand' that author wrote, 'it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.' Then after the citation of authority the author proceeds: 'While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.' Adopted by Harding ACJ in Reg v Camm (1883) 1 QLJ 136."

A recent statement to similar effect is to be found in "Cross on Evidence" (7th Australian Ed) J D Heydon at [29050].

51 Although in "Cross on Evidence" (supra) [at 928 - 930] the learned author enumerates a number of matters which have been treated by the courts as requiring a sufficient degree of specified knowledge to render expert evidence admissible, they do not include blood. The passage is as follows:

"No useful purpose would be served by an endeavour to enumerate the matters which have been treated by the courts as requiring a sufficient degree of specialised knowledge to render expert evidence admissible. They include medical and scientific questions, podiatry, the meaning of technical terms, (but not words in common usage), questions of commercial practice or market value, the provisions of a foreign system of law, the general commercial effect of books of account, the merit of works of art and antiques, the identification of ear prints, inferences that a voice heard on tapes speaking in English or in a foreign language is the same as the taped voice of the accused, styles of clothing and shoes, the identification of foot prints by Aboriginal trackers, the rules and procedures of gambling games and video surveillance of those games and the identity of a person's handwriting." (Footnotes excluded)

52 The cases that deal with medical matters do not include reference to blood, but are concerned mainly with the question of causation of wounds or medical conditions.

53 It is not uncommon for non-expert witnesses to give evidence that blood was observed on an object. In Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, Gibbs CJ and Mason J made reference to the evidence of a number of witnesses who had seen blood in the tent which had been occupied by the Chamberlain family at Ayres Rock. The following passage (at 543) indicates that evidence of witnesses who claimed to have seen blood in the tent was admitted:

"A number of witnesses saw blood in the tent, although no one seems to have made a very thorough inspection of the tent or its contents that night. Most of the witnesses who looked into the tent described what they saw as spots or sprays of blood on blankets and other articles in the tent."

54 However, there was evidence in Chamberlain v The Queen that the articles upon which blood had been identified were later forensically examined. Clearly, that could not happen in this case, as the T-shirt was never found.

55 In this case, the evidence that Ms Tolliday recognised blood on the T-shirt was not objected to. No objection was raised before the evidence was given, and none after. Had objection been raised, the learned trial Judge would have been obliged to rule on it. If the objection was raised before the evidence was given, the learned trial Judge may have ruled that it was inadmissible evidence, because Ms Tolliday had not been qualified to express an opinion on the matter, which was one calling for expertise. If objection was raised after the evidence had been given, the learned trial Judge may have directed the jury that the evidence should be disregarded because Ms Tolliday was not qualified to express an opinion on the subject.

56 The learned trial Judge may have informed the jury that typically bloodstains are the subject of forensic examination and expert testimony because this is a field in which an inexperienced person would be unlikely to be capable of forming a judgment without assistance. He may have said that analysis of stains to ascertain whether or not they contain blood is something in the nature of a science which requires a study in order to attain knowledge of it: Clark v Ryan per Dixon CJ at 491.

57 However, in this case, there was no issue as to whether or not the substance seen on the T-shirt by Ms Tolliday was blood. It was accepted by the defence that it was.

58 In my opinion, in the absence of challenge to the qualification of Ms Tolliday to give evidence that she saw bloodstains on the T-shirt, it is not now possible for the appellant to argue that the evidence was inadmissible by reason of Ms Tolliday's lack of expertise in identifying blood. It was an accepted fact at trial that whatever T-shirt it was that Ms Tolliday saw, it was bloodstained. The issue was whether or not it was the T-shirt which had been worn by the appellant on the night of the death of the deceased.

59 Counsel for the appellant went so far as to submit that whether objection to the evidence was raised or not, the learned trial Judge had a responsibility to rule that the evidence of Ms Tolliday about bloodstains was inadmissible.

60 I do not accept this submission. A trial Judge has the responsibility for presiding at a criminal trial at which the issues between the prosecution and the accused are joined. Unless evidence is plainly prejudicial to the interests of an accused, it is not generally his or her role to look for evidence which may be inadmissible and to rule on it in the absence of objection. The case for an accused person will often be predicated upon the admission of what might normally be evidence to which objection might be raised, but which it suits the accused to have in support of his or her case.

61 This case is in that category. The defence accepted that there was a bloodstained T-shirt found in David Tolliday's bedroom, and contended that it was his T-shirt. This proposition was relied upon to support a case that David Tolliday, not the appellant, was the killer of the deceased.

62 Counsel for the appellant relied upon R v Anderson [2000] VSCA 16; (2000) 1 VR 1 to support the argument that the learned trial Judge was bound to rule on the admissibility of Ms Tolliday's evidence about blood.

63 R v Anderson was concerned (inter alia) with the question of whether the trial Judge was in error in admitting into evidence opinion evidence of two doctors that wounds of the deceased were self-inflicted. The evidence was admitted over objection from defence counsel. The following passage appears in the judgment of Winneke P (with whom Phillips and Chernov JJA agreed) at [59]:

"The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury's consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed: see Bugg v Day [1949] HCA 59; (1949) 79 CLR 442 at 456 - 7 per Latham CJ; R v Inch (1990) 91 Cr App R 51 at 54; R v Marquard (1993) 85 CCC 193 at 225. Although it is, of course, true that it is for the judge to decide whether an expert's opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed; and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless: R v Turner [1975] QB 834 at 840 per Lawton LJ. In that sense the existence of such a foundation, or proper foundation, for the expression of opinion is a matter relevant to be taken into account on the question of admissibility: R v Bonython at 46 - 7 per King CJ; R v J (1994) 75 A Crim R 522 at 531 - 2 per Brooking J."

64 R v Anderson is clearly distinguishable from the present case. The opinions expressed by the doctors were over objection and were on a critical issue. The case is not authority for the proposition that a trial Judge must in all cases where evidence of opinion is given, rule on the admissibility of that evidence, absent an objection and absent the evidence going to an issue in contest in the case. It might be otherwise if the evidence was plainly prejudicial to the interests of the accused.

65 It is a fundamental principle of the criminal law that normally an appellant is bound by the way in which he contested the issues at trial. This is made clear by Kirby J in R v Taufahema [2007] HCA 11; (2007) 81 ALJR 800 at [168]:

"Tactical decisions and even-handedness: A particular consequence of the 'common law system of criminal procedure', and of its consequence that accused persons are ordinarily bound by the conduct of their legal representatives, has been a reluctance of courts of criminal appeal to permit an accused, having second thoughts on appeal, to challenge miscarriages of justice said to have arisen from tactical decisions made by trial counsel in the course of the trial. This reluctance has a very practical foundation. Such decisions are made in trials on countless occasions every day. If they were susceptible to being reopened on appeal, few forensic choices could be treated as final. Trials, and appeals, might never conclude. For this reason, in very many cases, this court has declined to permit accused persons to reopen decisions made by counsel at trial, characterised as those made for tactical reasons."

66 Kirby J was in dissent as to the outcome of the appeal in R v Taufahema, but the statement of principle is a summation of a number of decided cases. They are collected in a footnote to the paragraph I have quoted which is as follows:

"Recent examples include Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 at [21]; [2001] HCA 4; 75 ALJR 454; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8], [16] - [17]; [2002] HCA 46; 76 ALJR 1579 per Gleeson CJ; cf at [24] - [33], [43], [49] per Gaudron J; at [102] - [104] per Hayne J; cf my reasons in Gipp v The Queen (1998) 194 CLR 106 at [130] - [138]; 72 ALJR 1012 and Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 at [56] - [58]. See also R v Birks (1990) 19 NSWLR 677 at 686."

67 The appellant chose to contest the case against him at trial by accepting Ms Tolliday's evidence about bloodstains on the T-shirt, and cannot now reopen the matter on appeal. I agree with the reasons of Buss JA at [4] - [5]. In my opinion, there is no substance in ground 1.

68 This ground contends that the learned trial Judge erred by allowing evidence of the knife found at the scene of the crime to be adduced.

69 The evidence relating to the discovery of the knife was given by Senior Constable Allan Keith Motu. He was also a forensic investigation officer. He was completing a diploma in forensic examination from the Canberra Institute of Technology. On 27 August 2003, he made a forensic examination of the scene on the bushland track where the body of the deceased had been found. He found a knife in an area which he described as a "drop off" which dropped down to a drain. It was close to the track which ran through the bushland area. The knife was found with the blade buried into the ground. The knife handle was sticking out of the ground. A photograph of the knife was tendered in evidence. There was no cross-examination of the witness.

70 It was never the prosecution case that the knife found at the scene was connected with the crime or with the appellant. At the hearing of the appeal, the respondent contended in written submissions that evidence of the knife was relevant for four reasons:

(a) The death of the deceased was caused by four stab wounds to the abdomen;

(b) the wounds were consistent with having been caused by the knife;

(d) there was no challenge to the admissibility of the evidence that the knife had been found.

"Are you able to say whether that knife was consistent or inconsistent with the wounds you found on the body?---The knife is consistent with the injuries I've seen."

72 The learned trial Judge directed the jury in strong terms that the evidence of the knife did not implicate the appellant in any way. His Honour said:

"There was of course the knife found in the vicinity of the body, and you will see on the plan where that was in relation to the body, but there's simply no evidence to suggest that that was in fact the knife, or even if it was the knife used, that it was wielded at the time by Scot Oblak."

73 In the circumstances of this case, it was inevitable that the evidence of Constable Motu should have been admitted. He found a knife at the scene of the death of the deceased. The injuries sustained by the deceased were consistent with having been caused by such a knife, although there was nothing to suggest that it was the knife which had been used.

74 Evidence of what is found at a crime scene is, generally speaking, always admissible on the trial of an accused person. It is a question of fact whether anything found at the scene can be identified with the death of the deceased and, if so, whether it can be linked to the accused. The fact that it cannot be so identified or linked does not mean that the evidence is inadmissible.

75 In this case, there was no objection to the evidence of the knife being found at the scene. Further, the learned trial Judge made it clear to the jury that there was no evidence to suggest that that was the knife which killed the deceased, or even if it was, that it was in any way connected with the appellant.

76 In my view, there is no substance in this ground of appeal.

77 This ground of appeal contends that the verdict of the jury was unsafe and unsatisfactory in that it was unreasonable and had occasioned a miscarriage of justice. Reliance is placed on the first and second grounds of appeal, but, as I have found that there is no substance in either ground, that contention can be put aside. It is then argued that "the crucial" evidence of Ms Tolliday was unreliable.

78 I have already dealt at length with the evidence of Ms Tolliday and there is no need to reproduce the passages previously set out.

79 The learned trial Judge directed the jury as to how the evidence of Ms Tolliday should be assessed. His Honour rightly described the evidence as contentious:

"The one witness whose evidence was very contentious and was the subject of considerable cross examination was that of Lynette Tolliday, David Tolliday's mother. The reason her evidence was contentious was that she had made a statement to the police before she gave evidence in court which was quite different from what she said in court and in particular about the shirt that she found under the bed, under David Tolliday's bed, with what she said were bloodstains on it."

80 The learned trial Judge then related to the jury in considerable detail the evidence which Ms Tolliday had given in court and contrasted that evidence with her prior inconsistent statement. His Honour did it twice. On the first occasion, it was in the context of the way in which the evidence should be viewed by the jury, and, in the second, it was in the context of the defence case and the contentions made by the defence about the unreliability of Ms Tolliday's testimony.

81 The learned trial Judge made clear to the jury what the test was. His Honour said:

"In other words, where you are satisfied that a witness has given evidence in court which is inconsistent with what they said previously you can use that fact to assess the credibility of that witness because if you can't trust them as a credible witness, albeit it an honest witness, if you are not satisfied that they are giving accurate evidence now, then you would of course disregard their evidence, but it's a matter for you as a jury to decide what you make of the previous inconsistent statement as opposed to the evidence now given in court."

82 In my view, it was open to the jury to accept the evidence of Ms Tolliday that her prior inconsistent statement was made according to the best of her recollection and in circumstances when she was in a state of shock. Her explanation in re-examination about the way in which she later realised that the description in the statement was incorrect and how it "came back" to her that the T-shirt was one and the same as the T-shirt

she had seen the appellant wearing on the night of 16 July 2003 was something the jury was entitled to accept.

83 The Court is not concerned under ground 3 with a general question whether on all the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The appeal is circumscribed by the grounds advanced. In relation to ground 3, the Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses" (my emphasis): M v The Queen [1994] HCA 63; (1994) 181 CLR 487, per Mason CJ, Deane, Dawson and Toohey JJ at 493.

84 The question for the jury in relation to the evidence of Ms Tolliday was first whether the evidence given by her in court could be accepted. This necessitated consideration of the prior inconsistent statement she had made. It was a jury question to determine whether they accepted that her evidence on oath was truthful and accurate. If accepted, the evidence of Ms Tolliday was part of the circumstantial case brought by the prosecution against the appellant. The question then became whether this evidence, when taken in combination with the other evidence in the case, meant that guilt was the only rational inference that could be drawn from the circumstances: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 per Dawson J at 578.

85 In my opinion, the evidence of Ms Tolliday was evidence which the jury was entitled to accept. It was entirely a jury question. Such inconsistencies as there were in her testimony were exposed by the learned trial Judge and the jury could have been under no misapprehension about the task which they faced when looking at this evidence.

86 In my opinion, there is no substance in the third ground of appeal.

87 In my opinion, the appellant has failed to make out any of the grounds of appeal. I would refuse leave to appeal and dismiss the appeal.

OBLAK -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 176 (29 August 2007)

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Judgment (124 paragraphs)

OBLAK -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 176 (29 August 2007)

Legislation Cited (1)

Cases Cited (13)