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[2012] QCA 179
General information, not legal advice.
Court of Appeal (Qld)
2012-06-29
Margaret McMurdo P and Fraser JA and Margaret Wilson, AJA, Separate reasons for judgment of each member of the Court, each, concurring as to the orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Spina [2012] QCA 179
PARTIES: R v SPINA, Jason Michael (appellant)
FILE NO/S: CA No 121 of 2011 / SC No 624 of 2010
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 29 June 2012
DELIVERED AT: Brisbane
HEARING DATE: 8 March 2012
JUDGES: Margaret McMurdo P and Fraser JA and Margaret Wilson AJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: The application to adduce further evidence is refused and the appeal against conviction is dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL – MATERIALITY AND COGENCY – where days before trial defence counsel identified photographs supplied by the prosecution at an earlier time that were seemingly inconsistent with the prosecution case – where an expert in the field of scientific photography provided an opinion – where the opinion supported the defence case – where the opinion evidence was held inadmissible on a voir dire – where the expert gave further evidence at the appeal hearing – whether this evidence is ‘fresh evidence’ – whether the expert was qualified to provide opinion evidence – whether this evidence, combined with the other evidence at trial requires that the conviction be set aside to avoid a miscarriage of justice / Criminal Code 1899 (Qld), s 590B / Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited / Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, cited / Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68, cited / Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited / R v Butler [2010] 1 Qd R 325; [2009] QCA 111, cited / R v Condren; ex parte Attorney-General [1991] 1 Qd R 574, cited / R v Daley; ex parte A-G (Qld) [2005] QCA 162, cited / R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, cited / R v Main (1999) 105 A Crim R 412; [1999] QCA 148, discussed / R v Young (No 2) [1969] Qd R 566, cited / Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited
COUNSEL: D Walsh, with M Henry, for the appellant (pro bono) / T A Fuller SC, with G P Cash, for the respondent
SOLICITORS: A W Bale & Son for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: On the night of 18–19 December 2009, the appellant, Jason Spina, killed his estranged wife, Haley Allison, in the garage of her home by strangling and stabbing her. His trial commenced on 5 April 2011. In the presence of the jury he pleaded not guilty to murder but guilty to manslaughter. The prosecution did not accept his plea in discharge of the indictment and the trial proceeded.
The prosecution case was that, after killing the deceased, the appellant poured petrol on her and partially burned her body in an attempt to conceal his crime. In the process he inadvertently suffered severe burns. The next morning, when the pain from his burns became intolerable, he called an ambulance and his crime was revealed. He was arrested and charged with murder. The defence case was that, in the course of a verbal and physical argument, the deceased produced a knife, threw petrol on him, set him on fire and accidentally burnt herself. He hosed himself down to extinguish the fire, then, provoked by her conduct, grabbed the knife from her and killed her. The sole issue was whether the prosecution proved beyond reasonable doubt that the appellant did not kill the deceased whilst acting under provocation.
After an 11 day trial the jury convicted him of murder. He appeals against his conviction on the ground1 that fresh evidence has emerged which, if led at trial, would have caused the jury to return a different verdict. The appeal turns on the evidence of Professor Gale Edward Spring, an associate professor of scientific photography at RMIT University. Before discussing this ground of appeal, it is necessary to set out the relevant events preceding and at the trial, and the evidence of Professor Spring.
Relevant events preceding trial and during the prosecution case
An indictment was presented in the Supreme Court at Brisbane on 13 August 2010. About a month before the trial, the appellant’s counsel, who was very experienced in criminal law, withdrew for medical reasons and retired from practice. The appellant (apparently through his solicitor2) instructed Mr Walsh, a barrister also experienced in criminal law. Junior counsel, Mr M J Henry, was briefed only five days before the trial. Mr Walsh and Mr Henry also appear for the appellant in this appeal.3
A key issue at the trial was whether the deceased was stabbed and died before the fire. An alternative hypothesis put forward by the defence was that there may have been a second fire. If so, the question was whether the deceased was stabbed and died before the first fire.
Pathologist, Dr Ong, gave evidence including the following. The most prominent burning was to the front of the deceased’s abdomen where there was also charring. The burns extended slightly to the upper right chest region with some heat shrinkage over most of the right chest and breast. The left upper arm had patchy burns and the back of the hand was extensively charred. The pelvic region was burned. The face was partially burned on the right side with the right ear showing heat shrinkage and charring. The back of the body was relatively free from burns. The burns were not red at the margins where they met unburnt skin. This suggested it was more likely the burns were inflicted after death.4 Her trachea and bronchi were clear of soot which also tended to suggest the burning occurred after death.5 Dr Ong, however, unable to express a view as to whether the wounds were inflicted before or after the deceased was burned.6
The appellant was at the deceased’s premises for some time after her death. No evidence was led as to what happened to the knife during that period.
Police scientific officer Manktelow gave evidence which includes the following. A rough plan of the crime scene showed the position of the body and the charring on the carpet (ex 2). When he first saw the knife near the body he was unsure whether it was partially covered by the appellant’s burnt shirt (as in photographic exhibit 6F) or not (as in photographic exhibit 6D).7 Other tendered photographs showed the position of the body when found, spread-eagled and face up (for example, ex 6A). On 31 December 2009 he examined the knife at police headquarters without any magnification. He did not notice any indication of blood marks or stains on top of the soot marks on the blade. He made a note that it appeared that the scorching or soot could be over the top of the blood staining on the blade. The knife was photographed in detail and twelve photographs of it were tendered (exs 55A to 55L) without objection. As the knife had been stained while testing for fingerprints, the photographs in ex 55 were now the best record of its condition when found.
The voir dire
Professor Spring’s evidence on the voir dire may be summarised as follows. He was an expert in scientific and forensic photography. For 11 years from 1976 he was Director of Photographic Services for the Department of Pathology at the University of Texas South Western Medical School. This appointment included work with the South Western Institute of Forensic Sciences and the examination of crime scenes. In 1988, he became the program leader of the Scientific Photography Program at RMIT University, the only such department in the southern hemisphere. His duties included training forensic photographers. He had extensive experience photographing blood and soot at crime scenes. Soot and other dark material were difficult to photograph correctly.
He was asked to express his opinion as to whether an apparent blood stain covered soot on a photograph of a knife blade (probably ex 55G or ex 55H). In beginning to explain why he could express an expert opinion on this issue, he said:
“… we are looking at two things that are interacting, one very thin layer on top of another material, and we need to make the proper adjustments, making an assumption, which we also have to check, … that the exposure on the original photograph is correct, which would then imply that all of the tonality information is captured in that digital file. … we have to go back to the original material that made that image. To look at a photograph is not sufficient. … once you’ve put all of those pieces of the puzzle together, you can then make an opinion on what that image actually shows. Without that information then it’s anybody’s best guess, but unfortunately it’s just a guess.”11
“We do have to make an assumption that the soot is the reasonably denser material, and even a very thin layer of soot, being typically made up of carbon particles, is going to be very, very black, is going to be very, very mat, it’s going to absorb all of that light in that range of digital photography that generally doesn’t do very well. … By making some adjustments that are possible through [a computer program] like Photoshop we can actually begin to separate those tonalities between a tone that may have a red appearance … and those tones that are classically neutral, that is grey or black. So by making those adjustments we can … assist in seeing that something may be laying on top of, as opposed to underneath, especially when you have the contrast of jet black verses … a different tonality in its colour.”12 (errors in the original)
In cross-examination, he confirmed that optimally the raw file should be used when examining digital images as there was an inevitable loss of tonality in the transfer to a JPEG file. He agreed that this meant that his opinion based on an image from a JPEG file was less accurate than if he had seen the image from the raw file.
The prosecutor submitted that Professor Spring’s evidence was inadmissible as it was based on the assumption that the original image contained in the raw file was correctly exposed to accurately capture the tonality when that tonality could be lost in the transfer to the JPEG file.
I observe that this submission was surprising in circumstances where the prosecution had relied on and tendered photographic prints from the JPEG file (ex 55) in its case. But the judge accepted the submission and ruled that Associate Professor Spring could not give evidence based on an assumption which had not been established. Exhibit 55 nevertheless remained an exhibit. I do not apprehend that the appellant’s counsel are directly contending that this ruling was wrong in law on the material then before the court.
The prosecution closing address
The prosecution closed its case. The appellant elected not to give evidence. The prosecutor’s closing address to the jury was to the following effect. The jury should reject the appellant’s account of events to police and others as unreliable. His accounts were contradictory and were also contradicted by physical evidence including the number of stab wounds to the deceased and the pattern of blood stains which suggested the stabbing occurred where the body was found. The prosecutor emphasised the nature and extent of the multiple stab wounds to the deceased; the location of the burns to the appellant’s body; the location of the burns on the carpet especially the absence of any burnt carpet under the body; the nature and location of the burns to the deceased; and the trail of both burnt carpet and petrol. The prosecutor also emphasised the evidence of an elderly neighbour who saw a tall male running up the back steps into the kitchen and returning downstairs soon after. This was evidence that the appellant had left the deceased unconscious on the garage floor, obtained a knife from the kitchen and returned downstairs with it.
The prosecutor placed some weight on Mr Manktelow’s evidence of his examination of the knife on 31 December 2009. He had a “good close look” at the knife, particularly the tip, not just at a photograph. He did not see any indication of blood marks or stains on top of the soot marks and noted that the soot could be over the top of the blood staining. Mr Manktelow was a scientific officer who looked through the crime scene and gave evidence of blood patterns and spatter. He was in a position to make expert assessments from examining the knife itself. His expert assessment was that as far as he could tell, if there was soot on the blade it was over the top, not under the blood. A photograph was a poor substitute for the object itself and Mr Manktelow had “one huge advantage” in seeing the knife. If the defence raised an issue about the photographs of the knife, the prosecutor urged the jury, to remember Mr Manktelow’s evidence. He actually looked at the knife and was in the best possible position to comment on it.13
[23] The prosecutor urged the jury to find that the evidence in combination showed the appellant had stabbed the deceased with premeditation, not when provoked.
The defence closing address
[24] The defence closing address to the jury included the following. The defence case was that the jury would accept the appellant’s account of events given to police and others. His relationship with the deceased, though rocky, had resumed. There were two fires, one before the death and one after, the second starting from embers on the floor. The deceased’s conversation with the 000 operator and police shows that he was savagely burnt by the deceased and immediately reacted to that and killed her. This was consistent with the exhibits tendered at trial. The water and diluted blood in the kitchen supported the appellant’s account that he hosed himself down in the kitchen after being burned. Some petrol was found in the car interior. This was consistent with the appellant’s account that the deceased threw petrol across the room at him when the car door was open. Her DNA was found on the petrol can and on the lighter. This showed she set him on fire before she was stabbed and was consistent with the appellant’s case. Burns are unimaginably painful. The appellant strangled and stabbed the deceased whilst acting under provocation. The jury should look very carefully at the photographs contained in ex 55 as a thorough examination showed blood was on top of charring on the knife blade which suggested there was a fire before blood got on the blade. This was consistent with the appellant’s account to police and others that he acted under provocation after having been severely burned by the deceased.
Professor Spring’s evidence in this appeal
[25] Professor Spring prepared three reports for the appeal hearing and gave oral evidence. He examined two digital photographic files in JPEG format showing the images of the prints in ex 55G and ex 55H. Of the 12 photographs contained in ex 55, these two most accurately reflected the condition of the blade at the time of the photograph. This was because these photographs were exposed properly to capture the correct tonal range. Blood was translucent, that is, light passes through it. By contrast, soot is dense and completely absorbs light. If red can be seen over the black in the images of the blade, that is because the red got there after the black. The JPEG format provides a superior image to any physical photographic print. The JPEG files show fibres mixed with blood on top of charred material on the blade. The only way to ensure that all possible detail in a digital photograph is viewed accurately is to view the image on a computer screen with the resolution of the image set at 100 per cent, matching the captured image data from the camera, pixel for pixel.14 The JPEG file is a smaller file than the raw file due to information compression. Nevertheless, JPEG files maintain a high degree of detail and are accepted by law enforcement agencies in Australia and New Zealand as meeting industry standard through the 2004 Australasian Guidelines for Digital Imaging Processes.15
[26] At the appeal hearing, the JPEG files of ex 55G and ex 55H were displayed on the judges’ bench computer screens which have a resolution of 1280×1024. Professor Spring was simultaneously viewing the images on a 17 inch Macbook Pro screen with a resolution of 1920×1200. Professor Spring indicated the areas on the images where he considered red could be seen over black on the blade. After the hearing, the Court again examined the images in the JPEG files of ex 55G and 55H, this time on a 24 inch monitor with a resolution of 1920×1200. The images seemed to depict some relatively small amounts of red over black more clearly than the photographic prints in ex 55G and ex 55H.
[27] In cross-examination, Professor Spring agreed that his evidence was based on the assumption that the original image in raw file was properly exposed and able to capture sufficient details of the knife as it then existed. For present purposes, a histogram of an image includes “a graphical representation of the tonality of the image”. If the JPEG file had altered the original image in a program such as Photoshop, its histogram would probably show that there had been a compression tonality so that the JPEG file was not a first generation exact copy but an altered second generation copy. The histogram of the relevant images were “quite adequate” for Associate Professor Spring’s purposes, and did not suggest a tonality compression. He maintained his firm opinion that, from his examination of the JPEG files relating to ex 55G and ex 55H, red existed in the dark area so that the red (apparently blood) was on top of the black material (apparently soot). He agreed that his expertise was in producing an accurate reproduction of a crime scene using photography. He had never been called on to physically examine a knife which had both blood and soot on it.
The appellant’s contentions
[28] The appellant’s counsel contend that Professor Spring’s evidence is fresh in the legal sense. It did not exist at the time of the trial. If it existed, the judge’s ruling prevented the defence from relying on the evidence. It was within Associate Professor Spring’s expertise to determine whether a digital image had been correctly exposed so as to accurately capture the tonal range of the image. It was also within his expertise to determine whether the image represented an accurate depiction of a physical object by utilising his specialised knowledge of photography and associated computer software.
[29] Viewing the JPEG file directly from a computer screen offers better detail and resolution than can be obtained by the photographic print process. Exhibit 55G and ex 55H in JPEG format are superior images to those tendered at trial. It disproves the prosecution case and supports the defence case that the appellant killed the deceased whilst acting under provocation only after she burned him.
[30] If the evidence did exist at the time of the trial, they contend that it could not have been obtained at trial with reasonable diligence. The defence became aware of Professor Spring’s expertise and the nature of his evidence as to the JPEG files only at the end of the prosecution case. They did not have a proper opportunity to speak with Professor Spring prior to his giving evidence on the voir dire. In the unusual circumstances of this case where counsel were briefed late in a complex case involving a great deal of material, the evidence could not with reasonable diligence have been produced at the trial.
[31] The fresh evidence combined with the other evidence at trial may have led the jury to have had a reasonable doubt about whether he killed the deceased whilst provoked. The application to adduce further evidence should be granted; the appeal against conviction allowed and a retrial ordered.
Conclusion
The relevant legal principles
[32] Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen;16 Lawless v The Queen17 and R v Katsidis; ex parte A-G (Qld).18 New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.19
[33] In determining whether to allow an appeal against conviction based on fresh evidence, the test is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted. See Gallagher v The Queen20 and Mickelberg v The Queen.21
[34] Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen;22 R v Young (No 2);23 R v Condren; ex parte Attorney-General;24 R v Main;25 R v Daley; ex parte A-G (Qld);26 and R v Katsidis.27 In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.28
Is the evidence from Professor Spring fresh evidence?
[35] The initial question is whether Professor Spring’s evidence in this appeal is fresh in the legal sense. That first requires a determination of whether his evidence is admissible in all or part. Associate Professor Spring’s expertise in forensic digital photography qualifies him to give opinion evidence on matters within his expertise outside the ordinary experience of the judge and jury. In this case he could give admissible evidence of the following matters.
[36] Having examined the photographic prints contained in ex 55 and the JPEG files from which they derived, ex 55G most accurately reflected the state of the blade at the time of the photograph. This was because this image was properly exposed to capture the correct tonal image. The JPEG image of ex 55G at 100 per cent resolution was superior to the photographic print in ex 55G. The photographs were taken by police officers. There was no evidence of any tampering or loss of integrity in the image of ex 55G resulting from its transfer from raw file to JPEG file. Had there been any tampering or loss of integrity, this knowledge could be expected to be brought to the attention of the prosecutor by police.
[37] Associate Professor Spring could also give evidence from his expertise that the translucent nature of blood means that it cannot be seen when it is covered by carbon (soot or charring). That is because carbon is dense and absorbs and blocks light. If a photographic image depicts reddish blood over black carbon, this indicates the blood is on top of the carbon. Associate Professor Spring could show the jury areas these areas in the JPEG images of ex 55G and ex 55H which he considered depicted red over black. But it would always remain a jury question as to whether the JPEG image of ex 55G in fact depicted blood over soot.
[38] The JPEG files from which the prints of the photographs contained in ex 55 were derived are the essence of Professor Spring’s evidence. Those files existed at the time of the trial. Defence counsel could have cross-examined Mr Manktelow about the photographing of the knife and the process leading to the prints in ex 55. If Mr Manktelow could not assist, they could have requested that the actual photographer and those who printed ex 55 be called to give evidence. They could have called for the JPEG files relevant to ex 55. They did none of these things. Professor Spring’s admissible evidence led in this Court concerning the photographs in ex 55 could have been given at trial had he been asked for his opinion in ample time before the trial. Had his evidence been placed before the trial judge in its form in this Court, it can be expected his Honour would have allowed the admissible aspects of it to be given at trial. The fact that the judge ruled inadmissible aspects of Professor Spring’s evidence expressed quite differently to his evidence in this Court, does not have the result that his admissible evidence given in this Court and the JPEG files it concerns did not exist at the time of trial.
[39] It follows that Professor Spring’s evidence and the JPEG files to which it relates will only be fresh evidence in the legal sense if that evidence could not have been discovered at the trial with reasonable diligence on the part of the appellant’s legal representatives.
[40] This Court seems to have been given only selective information about the preparation for the appellant’s trial. It is unclear when the appellant’s instructing solicitors at trial were briefed. What is known is that the killing occurred in December 2009 and the appellant was apprehended the next day. He must have been charged very soon after. He told police that he was provoked into stabbing and killing the deceased only after she poured petrol over and set fire to him. There must have been a committal proceeding in 2010 at which the prosecution evidence against him was led. The indictment was presented in the Supreme Court on 13 August 2010, almost eight months before his trial. We have been told the appellant’s counsel retired for health reasons one month before the trial and only then was Mr Walsh briefed. It seems extraordinary that before Mr Walsh was briefed, the appellant’s lawyers had not apprehended the significance of the photographs of the knife blade in ex 55G and ex 55H. It was, after all, uncontentious that the appellant stabbed the deceased with the knife. It was clear from the time the crime was detected that the appellant claimed the deceased burned him and that he reacted by killing her under provocation. A reasonably diligent lawyer preparing his case for trial would have noted that some photographs contained in ex 55, especially exs 55G and 55H, arguably showed blood over soot on the blade, consistent with the appellant’s account. The appellant’s trial solicitor (who is not the solicitor on the record in this appeal) should, at the very least, have drawn the photographs to Mr Walsh’s attention when he first instructed him in the matter one month before trial. Had that occurred, the investigations conducted by Mr Henry only days before the trial would have taken place much sooner and the JPEG images of ex 55G and ex 55H and Professor Spring’s considered opinion about them would have been available some days prior to the trial. The defence could then have met its obligations under s 590B Criminal Code and provided that opinion to the prosecution before the trial commenced.
[41] For these reasons, the admissible evidence now sought to be led by Professor Spring is not fresh evidence.
Should the evidence be received to avoid a miscarriage of justice?
[42] In determining whether this Court should receive the further evidence, it is necessary to consider whether that evidence, if received, when combined with the evidence at trial, requires that the conviction of murder be set aside to avoid a miscarriage of justice.
[43] The jury could have concluded from the photographic print of ex 55G that there was some blood on top of the soot on the knife blade. It is true that Associate Professor Spring’s evidence and the JPEG image relevant to ex 55G makes that conclusion more likely. It is also true that the prosecutor in his address at trial placed some emphasis on Mr Manktelow’s evidence that he examined the knife itself and did not see blood over soot on the blade. As an experienced police scientific officer, his examination of the actual knife must be given more weight than a photograph of the knife. By contrast, the defence urged the jury to look very carefully at the photographs in ex 55 and submitted that they showed blood on top of the charring on the knife which, consistent with the appellant’s account, suggested there was a fire before the stabbing. The new evidence therefore has some relevance. A jury may have been more willing to find there may be blood over soot on the blade after seeing the JPEG files and hearing Associate Professor Spring’s evidence.
[44] But even if it is accepted from the further evidence that there were small amounts of blood over soot on the blade, the further evidence (either alone or in combination with the evidence at trial) does not provide convincing support for the appellant’s contention that he killed the deceased only after she had poured petrol on and burned him. The blade did not seem to have a large amount of blood over soot near its tip where the blood could be expected had it been used to stab the deceased after the fire. The knife was found together with the appellant’s burnt shirt near the body. The appellant was at the deceased’s home alone for some substantial period of time after the killing. There is no evidence as to what happened to the knife after the appellant stabbed the deceased. There was a considerable amount of blood and blood spatters around the area where the deceased’s body and the knife were found. Blood could have been transferred onto the knife in some unexplained way consistent with the prosecution case after the deceased’s body was burned.
[45] The positioning of the body, the burn marks on the carpet and the blood and blood spatters around the area where the deceased’s body was found all suggest the deceased was killed where her body was discovered. The absence of any burnt carpet under the body strongly supports the conclusion that the deceased was burned after she was dead. Although the pathologist’s evidence was inconclusive, he considered that the condition of her wounds and burns and the absence of any smoke damage to her lungs were more consistent with her being stabbed before she was burned.
[46] In essence, the new evidence in this case amounts to little more than an enhancement of the evidence contained in ex 55G which was emphasised to the jury by the appellant’s counsel at trial. In that respect, the case is similar to R v Main29 where this Court dismissed the appeal against conviction brought by way of apetition for pardon under s 672A Criminal Code. The further evidence in the present case was capable of supporting the defence case more convincingly than the photographic print in ex 55G, but when it is considered together with all the other evidence at trial, it is not of great consequence. There was convincing evidence to support the prosecution contention that the stabbing occurred before the burning. Relatively small amounts of blood could have been transferred to the blade of the knife after the burning in any number of unknown ways. After reviewing the evidence led at trial together with the new evidence, I remain unpersuaded that the guilty verdict of murder amounts to a miscarriage of justice.
[47] It follows that the application to adduce further evidence is refused and the appeal against conviction is dismissed.
[48] FRASER JA: I agree with the reasons for judgment of the President and the orders proposed by her Honour.
[49] MARGARET WILSON AJA: I agree with the orders proposed by the President, and with her Honour's reasons for judgment.
Another ground of appeal was abandoned at the appeal hearing: Appeal Transcript 1-39 (8 March 2012). ↩
The transcript of the pre-trial application on 4 April 2011 records that Mr Walsh and Mr Henry were instructed by John Paul Mould Solicitors: Pre-trial Hearing Transcript 1-2 (4 April 2011). ↩
The appeal transcript records that they are instructed by A W Bale & Son, apparently on a pro bono basis: Appeal Transcript 1-19. ↩
Trial Transcript 5-48, lines 30–45 (11 April 2012). ↩
Trial Transcript 5-64, lines 15–30. ↩
Trial Transcript 5-64, lines 38–45. ↩
Trial Transcript 5-12, lines 8–20. ↩
Trial Transcript 5-12, lines 1–60. ↩
An acronym for Joint Photographic Experts Group – the name of the committee that created the JPEG standard and other still picture coding standards. JPEG is a commonly used method of lossy compression in digital photography. According to the Senior Managers Australian and New Zealand Forensic Laboratories (SMANZFL) Australasian Guidelines for Digital Imaging Processes attached to Associate Professor’s Spring’s report of 20 October 2011, the term "lossy compression" encompasses any compression technique where image data is irretrievably lost in the compression process. The effects of the compression may or may not be visible but the original data cannot be restored. The degree of compression can be adjusted allowing a selectable trade-off between storage site and image quality. ↩
R
Spina [2012] QCA 179
(1986) 160 CLR 392
(1979) 142 CLR 659
(2005) 224 CLR 125
(1989) 167 CLR 259
(1974) 131 CLR 510
The prosecution led no evidence about who took the photographs contained in ex 55. The markings on the back of each print suggested they were digital images. The prosecution did not lead evidence of the history of the images from raw file to JPEG file to tendered print. Defence counsel did not require the prosecution to call the photographer. Nor did defence counsel call for the relevant raw file or the JPEG file9 of the prints in ex 55.
Mr Henry has deposed that his brief comprised nine volumes of documents and two boxes containing about 1,600 loose photographs. He was instructed to appear both at the trial commencing on 5 April and at the pre-trial application under s 590AA Criminal Code 1899 (Qld) the day before the trial. On the evening of 4 April, Mr Henry embarked on the sorting and examining of photographs. This took several days. He identified photographs of the knife blade which appeared to show blood on top of soot. He told Mr Walsh these photographs seemed inconsistent with the prosecution case.
Mr Walsh arranged with the prosecutor to speak to the trial judge in chambers on the morning of Friday, 8 April (the fourth day of the trial). There is no transcript of that meeting10 but it seems uncontentious that Mr Walsh requested a short adjournment to find an expert and obtain a report. He hoped to find an appropriate expert who could examine the photographic exhibits 55G and 55H which each depicted a close up of the blade with what seemed to be both soot and blood on it, perhaps with blood on top of the soot. The judge did not accede to that request. It seems his Honour suggested that Mr Henry, instead of attending court, use his time to pursue these enquiries. By the end of the day, Mr Henry had identified, contacted and engaged Associate Professor Spring in Melbourne. Mr Henry scanned and emailed photographs, including ex 55G and ex 55H, to Associate Professor Spring. On Saturday, 9 April, Associate Professor Spring stated the scanned photographs were inadequate for his purposes; he needed the prints. These were couriered to him that evening. Both defence counsel unsuccessfully attempted to speak by telephone to Professor Spring on Sunday, 10 April.
Prior to court on Monday, 11 April, Professor Spring informed Mr Henry that he thought it was possible there was a layer of blood coating the soot on the knife but the prints were inadequate for his purposes. He required the JPEG files of the images to confirm his opinion. He was to be in Brisbane the following day and if then given the JPEG files he would produce his expert report that afternoon. By this time the prosecution had called all its anticipated witnesses but had not closed its case. When informed of these developments, the judge ordered that any expert report from Associate Professor Spring be provided to the prosecution under s 590B Criminal Code by 1.00 pm that day.
Associate Professor Spring arrived in Brisbane at about 12.20 pm on Tuesday 12 April. The prosecution did not provide the JPEG files to the defence until 1.00 pm. Associate Professor Spring did not begin viewing them on his laptop until about 1.30 pm. He informed defence counsel that he considered that at least one image showed the blood clearly coating the soot.
When court resumed that afternoon the prosecutor stated that he was challenging the admissibility of Professor Spring’s evidence. In the interests of saving time and progressing the trial, the judge resolved, with the parties’ apparent concurrence, that the question of admissibility would be determined by way of Associate Professor Spring giving evidence in the absence of the jury (a voir dire). The prosecution had not been provided with a copy of his report under s 590B.
Ordinarily it is desirable that requests for adjournments are made in open court so that there is a complete record of the application and the judge’s reasons for granting or refusing it. There seems no reason why this course should not have been followed here. ↩
Trial Transcript 6-27 to 6-28 (12 April 2011). ↩
Trial Transcript 6-30 (12 April 2011). ↩
Trial Transcript 7-9 to 7-10 (13 April 2011). ↩
A pixel is the smallest component of a digital image. ↩
A copy was attached to Professor Spring’s third report. ↩
(1974) 131 CLR 510, 516–517. ↩
(1979) 142 CLR 659, 674–676. ↩
[2005] QCA 229, [2], [10]–[19] (Katsidis). ↩
R v Butler [2010] 1 Qd R 325, 335 [41]–[42]. ↩
(1986) 160 CLR 392, 397, 407. ↩
(1989) 167 CLR 259, 273, 292, 301–302. ↩
(2005) 224 CLR 125, 131–132 [10]–[13]. ↩
[1969] Qd R 566. ↩
[1991] 1 Qd R 574, 579. ↩
(1999) 105 A Crim R 412, 416– 417 [16]–[17] (McMurdo P), 417–418 [22]–[24] (Pincus JA). ↩
[2005] QCA 162. ↩
[2005] QCA 229, [3], [19]. ↩
R v Main (1999) 105 A Crim R 412, 417–418 [22]–[23]; Katsidis [2005] QCA 229, [4]. ↩
(1999) 105 A Crim R 412. ↩