THE STATE OF WESTERN AUSTRALIA -v- WARK [No 2] [2018] WASC 18 (22 January 2018)

4 A fundamental difference between a trial by jury and a trial by judge alone is that a jury's deliberations are secret and it does not reveal the reasons which have led to its verdict. By contrast, the judgment in a trial by judge alone must include the principles of law that the judge has applied and the findings of fact on which the judge has relied.[4]

5 These are the principles of law that I have applied and the findings of fact on which I have relied for finding that the accused is not guilty of wilful murder, but guilty of murder.

6 With the consent of the accused, the State read into evidence the statements of the following witnesses:

7 The statements of Albert Hall Rowland, Stanley Keith Hammond, Leonard John Hale, Lorna Christine Andrijich, Peter Andrew Boucher and John Robert McConnell, all of whom died prior to the trial, were read in by the State as a consequence of Pritchard J's order made on 7 June 2017.

8 The State called the following witnesses to give oral evidence:

9 The State called a witness, Ms Maria Russell, who I declared a special witness pursuant to the Evidence Act 1906 (WA) s 106R. Her evidence was transmitted to the courtroom by means of a video link. I direct myself that is a normal procedure in court proceedings in Western Australia. No adverse inference may be drawn against the accused because Ms Russell was declared a special witness.

10 The accused elected not to give evidence personally. He called the following witnesses to give oral evidence:

11 The statement of Mr Sean Harley Troy, who died prior to trial, was read into evidence by my order.

12 I find that most of the lay witnesses who gave oral evidence about events in 1999 were doing their best to honestly recall events which happened over 18 years ago. The overwhelming majority of them had good or reasonably good recollections of these events. There were very few times that witnesses were alleged to have given evidence which was inconsistent with their statement made in or around 1999.

13 There were only four witnesses who I conclude were not doing their best to honestly recall events or whose demeanour or recollections were so poor that I formed a poor opinion of their overall credibility. They are Bradley Hammond, Jamie Smith, Ian McCooke and Paul Springer. Where necessary, I have made comments about them when dealing with their evidence and the conclusions I draw from it.

14 There were some other witnesses who I conclude are in error about times and events, even though I have no doubt they were trying their best to honestly recall these matters. Where this is the case and the evidence is important, I have noted it when considering their evidence.

15 I find that the police witnesses, whether they were involved in the investigations in 1999 or at a later time, were honestly trying to recall events and conversations about which they gave evidence. The memories of some police witnesses are lacking or mistaken. Where this is the case and the evidence is important, I have noted it when dealing with their evidence.

16 The expert witnesses were qualified to give opinion evidence about the matters on which they testified. I find that they were each giving those opinions honestly and to the best of their ability. Where there is conflict between their opinions, I have expressed my reasons for preferring one opinion over that of another or for why I am unable to make findings about the conflicting opinions.

17 During the course of the State's case, the court had a view of Badgingarra, North West Road and other roads between Badgingarra and Moora. Whilst on North West Road, the court viewed the exterior of the accused's former home on North West Road and the front exterior of the two homes on the Seldom Seen farm.

18 The principles of law which I apply are as follows.

19 The accused is presumed to be innocent of any charge open on the indictment. The State has the onus of proving his guilt of a charge. I cannot return a verdict of guilty on a charge unless the State satisfies me beyond reasonable doubt of the guilt of the accused by establishing each of the essential elements of the charge to that standard. The accused is entitled to the benefit of any reasonable doubt in my mind. The accused does not have to prove anything.

20 Beyond reasonable doubt is a high standard. It is the highest standard that is known to the law.

21 The parties agree that the charges open on the indictment are wilful murder, murder and manslaughter. I need only return a verdict on murder if I am not satisfied beyond reasonable doubt that the accused is guilty of wilful murder. I need only return a verdict on manslaughter if I am not satisfied beyond reasonable doubt that the accused is guilty of wilful murder or murder.

22 I am the sole judge of the facts in this case. Counsel have put certain views about the facts to me and urged me to come to those views. But I must not adopt anybody else's views of the facts. It is my role alone to decide what facts have been proved in this case, and then applying the law as I now set it out, to decide whether the State has proved a charge beyond reasonable doubt.

23 I must judge the evidence fairly and impartially. I must determine my verdict on the evidence adduced in the trial and not on any other matters. I must assess that evidence dispassionately. I must not decide the case on prejudice or sympathy. I must not guess or speculate about matters which are not in evidence or about what a certain person may have said if they had been called to give evidence. Neither should I look for theories which are not supported by the evidence.

24 I may accept part of a witness' evidence and reject other parts of that witness' evidence. I may find that a piece of evidence is important, even though it has not been mentioned by either counsel.

25 When a witness statement has been read into evidence, I have not had an opportunity to assess the witness give the evidence. Where the statement has been read into evidence by consent, there is an implication that the witness' evidence is not in dispute. The implication does not arise where a statement has been read in by order of a judge.

26 In relation to witnesses whose statements were read in by order of the court, I warn myself that I have not had the benefit of seeing the witness give evidence or hearing his or her evidence tested by cross‑examination. I should take these matters into account when deciding whether to rely on the witness' evidence.

27 The accused's statements to the police and electronically recorded record of interview conducted on 27 November 2013 (EROI) are part of the evidence. It is the accused's answers in the EROI which are the evidence, not the questions.

28 I may use the statements and EROI for or against the accused. It is up to me to decide which part of the statements and EROI I accept and which parts I reject. I may take into account that the accused's statements and EROI made out of court were not made on oath or affirmation. As a consequence I may give his exculpatory statements less weight.

29 The accused told the police that he was in Moora at the time that the State says that Ms Dodd disappeared from North West Road (the alibi). By saying this, the accused does not undertake to prove that he was in Moora or to prove any other fact. The onus remains on the State to prove that the accused committed an offence. That means that it must eliminate any reasonable possibility that the alibi is true.

30 Four of the witnesses who gave evidence are forensic scientists and are expert witnesses. They are Mr Andrew McDonald, Dr Dadna Hartman, Dr Michael Wallbank and Professor Allan Jamieson. Professor Jamieson's opinions are in conflict with the opinions of the other named scientists to some extent.

31 Other witnesses are expert witnesses but their evidence is not disputed by any other witness. Witnesses in this category include Mr Scott Egan, Ms Tracey Horner and Senior Constable Darren Harston.

32 I am not bound to accept and act upon a witness' evidence, even an expert witness' evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's opinion is unreliable. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that expert evidence, I must accept it.

33 It is for me to decide whose opinion I accept in whole or in part. The resolution of areas of conflict between expert witnesses may depend on the State's onus of proof. It may also depend on my decision as to whether the facts upon which an opinion is based accord with the facts as I have found them to be, whether the expert has taken into account facts which I have found were not proven and whether steps of reasoning in the formation of an opinion have been soundly taken. I may also take into account a particular expert witness' level of expertise in a particular area.

Admissions made under the Evidence Act s 32

34 The accused made some formal admissions under the Evidence Act 1906 (WA), s 32.[6] Section 32 provides that an accused may admit on his trial any fact alleged against him or sought to be proved against him and such admission will be sufficient proof of the fact without other evidence. However I am not bound to accept admitted facts.

35 The State's case is circumstantial. There is no witness who testified that they saw the accused kill Ms Dodd. I am required to look at the evidence of all the surrounding circumstances (the circumstantial evidence) to see what conclusions, or inferences, if any, can be drawn from it. I may draw an inference or inferences against the accused from the circumstantial evidence. Circumstantial evidence and the inferences which can be drawn from it may prove the commission of a criminal offence.

36 There may be a number of surrounding circumstances proven, none of which would individually prove a charge, but when considered together they may lead to the conclusion that the accused is guilty of a charge.

37 It is a matter for me to determine what facts have been proven by the circumstantial evidence that I find to be reliable and true. It is open for me to draw an inference against the accused from those proven facts if that is the only inference which is reasonably available. If there is an alternative inference open within reason then I must not draw the inference of guilt.

38 This direction applies to each element of a charge and to my consideration of a charge as a whole. If I think that the evidence is capable of a reasonable explanation, other than that the accused is guilty of the charge I am considering, he must be found not guilty of it. This is because he is entitled to the benefit of any reasonable doubt.

39 Sometimes, in a circumstantial case, there will be evidence of matters which, when looked at in isolation from other evidence, will yield an inference compatible with either the guilt of the accused or the innocence of the accused. But a circumstantial case must not be considered piecemeal. I must consider all the circumstantial evidence. In doing so, I may find that one piece of evidence resolves or increases my doubts as to another. I should not reject one circumstance because, when considered alone, no inference can be drawn from it. I must consider the weight which is to be given to the united force of all the proven circumstances.

40 The accused did not give evidence. It was his right not to do so. His silence is not to be used against him. It does not constitute an admission. The fact that he did not give evidence proves nothing.

41 The State says that the accused told lies to various people about his health and the reason he was selling his home and moving to Queensland and that he lied to Mr McConnell about being in hospital when he had already been discharged. It says that these are lies going to the credibility of his statements to police about his movements on 29 July 1999.[7]

42 There was no objection to the admission of the evidence said to prove the accused's alleged lies.

43 The accused's counsel made submissions at the end of the trial as to why I should not find the evidence to be significant.

44 Neither counsel included a proposed direction as to lies in their written submissions on the legal directions.

45 When reflecting on the proper direction relating to these lies, I determined that there was no proper basis for the admission of the evidence. It was evidence of collateral matters and its only relevance was to establish the accused's bad character and, in particular, his propensity to lie. Evidence of an accused's bad character is inadmissible at common law unless the accused has put his character into issue, has attacked the character of the prosecutor's witnesses or it is relevant to prove the accused's guilt.[8] Those circumstances do not apply to these alleged lies. Neither is the evidence admissible pursuant to the Evidence Act 1906 (WA) s 31A.

46 There are many cases where evidence of an accused's lies are so integrated with evidence relevant to proof of the accused's guilt or innocence, that they are admissible in that context. Where that occurs, the jury may be entitled to take the alleged lies into account generally in deciding whether to believe other things said by the accused. This is not such a case. As the evidence concerning these lies should not have been adduced, I will ignore it and not take it into account.

47 The State submits that if I should find that Ms Dodd was in Mr McConnell's ute on 29 July 1999, the accused's denial to the police in the EROI that she had ever been in the ute is a lie showing consciousness of guilt of wilful murder.[9]

48 It is for me to decide whether the accused told a lie about that matter and whether it was a deliberate lie. If I find that he lied, it is for me to decide the significance of a lie in relation to the issues.

49 If I find that the accused lied to the police about Ms Dodd not having been in Mr McConnell's ute, I may accept the lie as supportive of the State case, that is, evidence which directly goes to strengthen the State case. Before I do so, I must be satisfied of the following matters:

(2) The lie relates to a material issue. A material issue is one which is relevant to the guilt or innocence of the accused. The lie must reveal that the accused had some knowledge of the alleged offence or an aspect of it. That knowledge must, in my view, be inconsistent with his innocence. A statement that Ms Dodd had not been in Mr McConnell's ute relates to a material issue.

(3) The lie must, in my opinion, spring from a realisation of guilt and fear of the truth. That is, I must be satisfied that the accused knew that unless he lied about that matter, he would be unable to provide any innocent explanation for his actions. There may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. If I accept that a reason of that kind is the explanation for the lie, I cannot regard it as an admission.

(4) The lie must clearly be proved by evidence other than the evidence which is to be supported or corroborated by the lie.[10]

50 A lie told out of court becomes important when there is other evidence which is sufficient to sustain a verdict of guilty. In those circumstances, if I am satisfied of the above matters, I may use the lie to strengthen that evidence.

51 The State submits that the accused's conduct since 29 July 1999 in concealing Ms Dodd's death are actions that are only demonstrable of an intention to kill her.[11]

52 In this regard, the State relies on what the High Court said in R v Baden‑Clay.[12] Their Honours said:

The respondent's false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should 'lie low', and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter‑related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing.

In R v White, in the Supreme Court of Canada, Major J said:

'As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact‑finding role.'

In R v White, Major J went on to say that there may be cases where post‑offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post‑offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: 'The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute.'

In Lane v The Queen, the Court of Criminal Appeal of the Supreme Court of New South Wales rejected the contention that a count of manslaughter of the accused's child should have been left to the jury as an alternative to murder. The Court held that the jury were entitled to take the post-offence conduct of the accused as evidencing consciousness of guilt of murder. In particular, the Court held that the lies told by the accused 'alone were sufficient to provide the evidentiary foundation for an inference that ... she acted with the intention of killing.' Their Honours went on to say that the false accounts given by the accused 'provide no factual foundation for an inference that the manner in which she killed [her child]' would establish manslaughter by criminal negligence.

It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.

However, even if the evidence of post‑offence conduct were neutral on the issue of intent, that alone would provide no basis to conclude that the reasonable hypothesis relied upon by the Court of Appeal was open on the evidence led at trial. To so conclude is to adopt an impermissible 'piecemeal' approach to that evidence. All of the circumstances established by the evidence were to be considered and weighed, not just some of them.

Finally, the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about the respondent's intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm.

In all the circumstances of this case, other than speculating about how things might have happened, it was open to the jury rationally to conclude that the respondent killed his wife and did so with intent, at least, to cause her grievous bodily harm. Upon the whole of the evidence led at trial, it was open to the jury to be satisfied beyond reasonable doubt that the respondent was guilty of murder.

53 In order to be able to use what is sometimes described as post‑offence conduct as evidence of proof of an element of an offence, such as proof of an intention to kill, I must be satisfied that:

(3) the accused acted in the manner he did out of a realisation of guilt and fear of the truth. That is, he knew he had intentionally killed Ms Dodd and unless he behaved in this way he would be unable to provide an innocent explanation for his actions; and

(4) the conduct has been proved by independent evidence.

54 The evidence of Ms M was admitted as propensity evidence. Propensity evidence is evidence which I may use to infer that the accused, who is a person who has been responsible for other criminal acts, is likely by reason of that fact to have committed the offence charged.[13] Another way of putting it is that 'the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he ... is charged'.[14] It may support an inference of guilt, in the sense that that it makes it objectively improbable 'that a person other than the accused committed the act in question, that the ... act was unintended, or ... occurred innocently or fortuitously'.[15]

55 As the evidence of Ms M was admitted as propensity evidence, I do not give myself a propensity warning about it. However it remains the case that I cannot reason that just because of the propensity evidence, the accused is guilty of an offence open on the indictment. I cannot convict the accused of an offence open on the indictment unless the State has satisfied me beyond reasonable doubt that he unlawfully killed Ms Dodd on the basis of all the evidence, including the propensity evidence.

56 In deciding whether the State has proved a charge against the accused, I must take into account that Ms Dodd disappeared over 18 years ago. Over time, memories fade and the long delay between her disappearance and the trial means that there was considerable opportunity for witnesses to be mistaken in their memories of relevant events. Sometimes the passage of time plays tricks on memories. In this case, very few witnesses were alleged to have given evidence inconsistent with their earlier written statements.

57 It is also a matter of common experience that the longer a witness believes something to have happened or that they saw something the more convinced they may become that it has happened or that they saw it. This can be so even if they were mistaken in their original recollection.

58 These issues are particularly relevant to witnesses' recollections of the times they commenced or finished their journeys on North West Road and where and when they believe they saw Ms Dodd or the accused on or after 29 July 1999.

59 Although the accused was interviewed by the police in 1999, he was not charged with wilful murder until after the EROI in November 2013. The longer the time between the disappearance of Ms Dodd and the accused being charged, the more difficult it may be for him to answer the allegation that he was responsible for her disappearance. For example, time may have deprived him of the opportunity of obtaining evidence to support the alibi.

60 If he had been charged soon after July 1999 he would have been able to get more evidence from businesses in Moora and he may have had some documents, such as till receipts, to prove when he was in Moora. It is likely that the seat cover would have been examined earlier.

61 As a result of delay, the accused has been placed at a real disadvantage in putting forward his case and testing the State's case. I take these matters into account in his favour when deciding whether the State has proved a charge against him. I must scrutinise the evidence with great care, and not reach a conclusion of guilt on a charge unless I am satisfied beyond reasonable doubt of his guilt, after taking the forensic disadvantage into account.

62 The view can be used by me to assist in understanding and applying the evidence, but it is not evidence.

63 Both parties submitted that I should give myself an identification warning. However identification warnings are required when a witness or witnesses have purported to identify the accused as an offender.[16] This is not such a case. Neither is any witness' purported sighting of the accused said to be in error. I do not regard an identification warning as being applicable in this case.

64 Some witnesses have purported to identify Ms Dodd as being in various locations at various times. Other witnesses have simply described seeing a girl whose appearance is similar to that of Ms Dodd. Some purported identifications are favourable to the accused and others are not. Some of the purported identifications of Ms Dodd which are not favourable to the accused are disputed by him as to the time and location of the sighting, and some are not. The accused does not submit that any witness who purported to see a young girl on North West Road on 29 July 1999 or at other places after that did not in fact see a young girl. The accused does not submit that any such sighting was not in fact Ms Dodd. Rather, it is the State who submits that some witnesses who purported to see a young girl did not in fact see such a girl in the location and at the time they allege they saw her or that they saw a girl other than Ms Dodd.[17]

65 In deciding whether a purported identification of Ms Dodd is reliable, I take into account matters such as the circumstances in which identification was made, how long the witness had the person under observation, if the witness was travelling in a vehicle, at what speed the vehicle was travelling, at what distance and in what light the purported observation was made, whether the witness' observation was impeded, the circumstances in which the purported identification was made, and whether the witness had ever seen Ms Dodd or a picture of Ms Dodd at any other time. I also take into account whether the purported identification is consistent with other evidence which I believe to be true.

66 I warn myself that an honest witness may be mistaken in their purported identification of a stranger who was seen by them only once and in less than ideal circumstances.

67 The motive by which a person is induced to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.[18]

68 However the State's propensity evidence gives rise to an inference that the accused's motive in picking up Ms Dodd was for a sexual encounter. The accused says that the propensity evidence does not give rise to such a motive because the circumstances between it and any alleged encounter with Ms Dodd were very different. In any event, he denies that the State has proved that he had any encounter with Ms Dodd.

69 The State does not have to prove that the accused had a motive. However if the accused had the motive, it is one matter from which I may infer that the accused picked up Ms Dodd, assaulted her and in the course of doing so, killed her.

70 Just because someone has a motive does not mean that they will act on it and I need to look at all the surrounding circumstances in order to determine whether the State has satisfied me beyond reasonable doubt that the accused killed Ms Dodd and if so, his intention when he did so.

71 There is no onus on the accused to prove anything and in this context that means there is no onus on the accused to prove that he did not have a motive or that, if he did, he did not kill Ms Dodd.

72 Before I may find the accused guilty of wilful murder, I must be satisfied that the State has proved each of the following elements of the charge to the standard of beyond reasonable doubt:

(1) that the accused killed Ms Dodd, that is, caused her death, directly or indirectly, by any means whatever;[19]

(2) that when he killed Ms Dodd he intended to cause her death;[20] and

73 Before I may find the accused guilty of murder, I must be satisfied that the State has proved each of the following elements of the charge to the standard of beyond reasonable doubt:

(1) that the accused killed Ms Dodd, that is, caused her death, directly or indirectly, by any means whatever;[22]

(2) that when he killed Ms Dodd he intended to cause her grievous bodily harm, that is any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health;[23] and

74 If I am satisfied of the first and third elements of murder but not satisfied of the second element, the accused, may alternatively, be guilty of murder if I am satisfied beyond reasonable doubt that Ms Dodd's death was caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.[24]

75 The State's case was put on the basis that if I was satisfied beyond reasonable doubt that the accused killed Ms Dodd, then I should find him guilty of wilful murder and there was no factual basis for any other verdict. The prosecutor submitted that the accused's lie about Ms Dodd not having been in Mr McConnell's ute on 29 July 1999 and his post‑offence conduct in concealing Ms Dodd's death for over 18 years are demonstrative only of an intention to kill her.[25] After a comment from me during closing addresses and further consideration by counsel, the State changed its position and submitted that should I find that the accused killed Ms Dodd in the course of overpowering her with a view to sexually assaulting her, murder was a verdict open on the evidence.[26]

76 The accused's counsel acknowledged that whilst the State had run its case on the basis that the only appropriate verdict was wilful murder and whilst the accused's position was that the State had not proved that he killed Ms Dodd, if I made contrary findings, I would have to consider the alternative verdicts.[27] There was no suggestion by counsel that it was not open to me to convict the accused on one of the bases for murder, as opposed to wilful murder.

77 Before I may find the accused guilty of manslaughter, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:

(1) that the accused killed Ms Dodd, that is, caused her death, directly or indirectly, by any means whatever;[28] and

78 The State submits that the accused is guilty of wilful murder because he encountered Ms Dodd at about midday on 29 July 1999, picked her up, killed her and disposed of her body. It submits that I should be satisfied beyond reasonable doubt of these matters from the following circumstances:

(1) when she disappeared, Ms Dodd was wearing a pair of earrings, one of which was later found in the vehicle that the accused was driving on 29 July 1999;

(2) one of Ms Dodd's hairs was later found in the same vehicle;

(3) the accused was alone in the vehicle when he had the opportunity to encounter Ms Dodd on North West Road;

(4) there have been no reliable sightings of Ms Dodd since the accused had the opportunity to encounter her; and

(5) the accused had a propensity to pick up a lone female hitchhiker and to rape them, and in doing so to use extreme violence.

79 The accused submits that he is not guilty because of the alibi that he was in Moora at the time Ms Dodd disappeared. He says that in any event, I should not conclude:

(1) that he had the opportunity to encounter Ms Dodd;

(2) that the earring and hair belonged to Ms Dodd; and

(3) that the propensity evidence is probative of his guilt.

80 There are no facts or circumstances raised by the evidence which would render the killing of Ms Dodd lawful. Therefore, the issues for my determination are:

(3) If he did not intend to kill her, did he intend to cause her grievous bodily harm or did he kill her in the alternative circumstance which constitutes murder?

81 Many facts are not in dispute. There are also many facts which, although not agreed to by the accused, are not the subject of disputed evidence and the undisputed evidence grounding the facts was given by witnesses whose credibility is not in issue. In relation to many such facts I will not explain the reason why I have found the facts unless a fact has particular relevance to the reasoning towards my verdict.

82 There are other facts in issue about which there is conflicting evidence, or which can only be found by inference or which have been given by a witness whose credibility is in issue. I will explain the reasons why I have found those facts.

83 The accused was born on 21 February 1956 and was 43 years old in July 1999. There is no direct evidence of the accused's height and weight in July 1999. However an audio visual recording of him in August 1999[29] shows him to have been of at least an average Caucasian man's height and weight.

84 In July 1999, the accused owned and lived in a very basic home on lot 10 ‑ 12 North West Road, Badgingarra (the accused's home). He had been living there for about 15 years. The accused's home was on the site of the old Badgingarra township. The township was moved when the Brand Highway was realigned. The lot was much larger than a standard residential block. The house was set back from the road and there was a freestanding tin shed at the rear of the house, which was large enough to fit a car. There was scrub surrounding the house and shed. There was no obvious other homes or developments nearby. The north side of the block was bounded by North West Road. The western side of the block was bounded by McNamara Road. On the other two sides there was more scrub and sparse bush.[30]

85 The accused was single. He had a boarder, Mr John McConnell, who died on 10 January 2013.[31] The accused worked each Monday, Wednesday and Friday as a gardener at Badgingarra Primary School, which was on McNamara Road, a short distance from the accused's home.[32]

86 Badgingarra is 205 km north of Perth. The new Badgingarra township is in the area of the corner of Brand Highway and Meagher Drive. At the time of Ms Dodd's disappearance, the Badgingarra town site consisted of a roadhouse, a tavern, Badgingarra Motors, a general store and Badgingarra Rural Traders, which was a supplier of farming equipment. All of these businesses were close to one another along Meagher Drive. From its junction with Brand Highway, Meagher Drive runs in an easterly direction for a short distance and then curves to the north. It then meets North West Road at a T‑junction. North West Road also runs off Brand Highway but to the north of Meagher Drive. There was also a golf course on the northern side of North West Road and a small number of residential homes to the east of Meagher Drive.[33]

87 The accused's home was 7.6 km south east of the roadhouse, which is close to the corner of Meagher Drive and Brand Highway. To get to the accused's home from the roadhouse, you would travel along Meagher drive, turn right onto North West Road and travel along North West Road until you came to the junction of North West Road and McNamara Road. The accused's home was on the southeast corner of North West Road and McNamara Road.

88 McNamara Road and Winjardie Road almost form a cross‑intersection with North West Road, although McNamara Road meets North West Road slightly to the east of the junction of Winjardie Road and North West Road. Winjardie Road runs roughly north from North West Road, McNamara Road runs in a south westerly direction towards Brand Highway.[34]

89 From the accused's home it was a further 50.7 km in a south easterly direction to Moora along North West Road.[35] North West Road is the main road which runs between Badgingarra and Moora. However before arriving in Moora, travellers must turn left off North West Road onto Dandaragan Road in order to travel into Moora. Moora is a larger town and it had a shopping area on both sides of a railway line.

90 North West Road is primarily bordered by farm paddocks, with low lying scrub and areas of national park. The Badgingarra National Park is west of the town site and Watheroo National Park lies to the northeast.

91 The accused purchased a white 1973 HQ Holden Utility,[36] registration number DN735 (Mr McConnell's ute) in December 1998, from a local farmer, Mr Terry Hughan. Mr Hughan testified that when he sold the ute to the accused it had a canvas covered front bench seat[37] in place of the original bench seat which had been damaged, and that the bench seat did not have a seat cover on it. If this was the case, by 29 July 1999, the accused or Mr McConnell had replaced that front bench seat with an original bench seat because the photographs of Mr McConnell's ute taken by the police in 1999 show that the bench and backrest portions of the seat match each other and the colour of the ute's interior. Neither of the seats were canvas. Alternatively, Mr Hughan is incorrect in his recollection.

92 Mr Hughan testified that the ute was purchased second‑hand.[38] It was used as a farm ute around his farm and to transport him and his family to and from the farm and Badgingarra.[39] He said that he would not have driven it to Moora.[40] Mr Hughan had two daughters and a son. Neither daughter, it appears from the evidence, would have been in the ute after about 1986.[41] However Mr Hughan said that there would have been a lot of people and children in the ute over the years he owned it.[42] Mr Hughan did not know Ms Dodd.[43]

93 The accused sold the ute to Mr McConnell in June 1999, and it was formally transferred into Mr McConnell's name on 1 July 1999.[44] The accused continued to use Mr McConnell's ute to travel to Moora to hire and return videos and shop for the household.[45] It was the accused's habit to drive to Moora on a Thursday.[46]

94 As at July 1999, Mr McConnell's ute was very old. Although the accused drove it regularly to Moora, I accept that he would have driven it at about 80 km per hour.[47] In his statement to police, the accused said that the trip to Moora took him just over 30 minutes and that it would not take more than 45 minutes. At 80 km per hour the trip would take 39 minutes. I infer that he sometimes drove a bit faster or a bit slower.

95 Ms Dodd was the daughter of Margaret and Raymond Dodd. Her parents were born in the United Kingdom. She was born on 30 November 1981 in the Lancaster, United Kingdom. At the time of her disappearance she was 17 years old.[48]

96 Ms Dodd was the middle child in a family of five brothers and sisters. Her older brother, Martin, was born in 1975. Her older sister, Toni, was born in about 1979. Her younger brother, Byron, was born in 1985. Her younger sister, Raeanne, was born in 1986.[49]

97 At the time of her disappearance in July 1999, Ms Dodd was of small stature. Various estimations were given of her height by those who knew her but none were above 154 cm, or 5'1". She also had a slim build. Various estimations were given of her weight but no one who knew her put it above 50 kg and most estimated it at about 40 kg. Her small size meant that an adult male of average strength would likely be able to overpower her.

98 In 1990 Ms Dodd moved with her parents and siblings to Australia. Shortly after arriving in Australia her parents bought a house in Mandurah.[50] Ms Dodd lived there with her parents until she moved out of home in about March 1999.[51] There is no evidence that she travelled out of Australia, or even interstate, between her arrival in Australia and when she went missing.[52]

99 Ms Dodd left school in 1997. She was not interested in pursuing academic studies.[53] She commenced work as a shop assistant in a local deli. She stopped working in 1999 and commenced receiving a job seeker's benefit from Centrelink.[54]

100 In March 1999 Ms Dodd chose to move out of the family home and to live in an on‑site caravan with a friend, Ms Rebecca O'Donnell. She subsequently moved to the Ravenswood Caravan Park in Mandurah with another friend, Ms Lisa Frederickson, who was then 21 years old.[55] Around this time Ms Dodd drank alcohol, used drugs recreationally, partied and had her first relationships with young men. She remained close to her parents and siblings, in particular her mother and sisters.[56] She still relied on her mother and older sister, Toni, to organise her life in significant ways.[57]

101 Ms Frederickson and Ms Dodd made plans to travel in regional Western Australia. Ms Dodd was excited about the plan and she told her family about it.[58] Ms Frederickson had an opportunity to obtain work for them as roustabouts on a shearing team in the Dongara area. Ms Frederickson had experience in this sort of work. Ms Dodd did not.[59]

102 Ms Dodd told Ms Frederickson that she would also like to visit the Hammond family on a farm called Seldom Seen farm.[60] The Seldom Seen farm was owned by Mr Keith Hammond.[61] Ms Dodd had previously visited the farm, which is on the southern side of North West Road 24.6 km from Badgingarra and 33.7 km from Moora.[62] In October 1998, Ms Dodd stayed there with her younger sister, Raeanne, who was a friend of Keith Hammond's granddaughter, Kristal. Ms Dodd told others that she had enjoyed her time on the farm.[63] She had also told others that she wanted to see Kristal's older brother, Mr Bradley Hammond,[64] who she had met at the farm.[65]

103 Bradley Hammond testified that he did not have a close or any friendship with Ms Dodd.[66] This is not entirely consistent with the impression Ms Dodd gave to her friends,[67] or with Keith Hammond's evidence that Ms Dodd had telephoned and spoken to Bradley on two earlier occasions.[68] Bradley Hammond was not a convincing witness. It is unnecessary for me to determine the nature of the relationship between Bradley Hammond and Ms Dodd and whether Bradley has forgotten the contact he had with Ms Dodd or whether his evidence deliberately minimised that contact. This is because Bradley has an alibi for the day Ms Dodd went missing and it was not suggested to him or submitted to me that there is any evidence that he had anything to do with Ms Dodd's disappearance.

104 In pursuance of what they saw as an adventure, Ms Dodd and Ms Frederickson sold their vehicles, bought clothes and other equipment and pooled their resources in preparation for their trip. In the early morning of 22 July 1999 they left Mandurah. They hitchhiked to Rockingham where they walked to the home of Ms Frederickson's ex‑partner Mr Stuart Cutt. He gave them a lift to somewhere north of Perth. From there they hitchhiked to Eneabba, where they arrived on the afternoon of 22 July 1999.[69]

105 Ms Dodd called her mother from Eneabba to let her know that they had got there safely. She sounded excited and told her mother that she would ring her later.[70] She rang her mother again from Dongara that evening. Dongara is 154 km north of Badgingarra.[71] Mrs Dodd recalls that Ms Dodd told her that she and Ms Frederickson had hitchhiked from Eneabba to Dongara. However Ms Frederickson testified that a friend, Darren, gave them a lift to Dongara.[72] It does not matter which version is correct. The girls stayed at Darren's house, located on Ocean Drive, Dongara, that evening. Darren, who was a shearer, arranged work for Ms Dodd and Ms Frederickson as roustabouts on a local shearing team for the next two days.[73]

106 Whilst in Dongara, Ms Dodd telephoned her mother[74] and sister Toni.[75] She sent a postcard to her mother, a birthday card to her sister, Raeanne,[76] and a present to her young niece.[77] In the postcard she said that she was having a good time.[78] She gave no indication that she was unhappy, that she was intending to travel out of Western Australia or was intending to stop communicating with her family.

107 On Sunday, 25 July 1999, Ms Dodd and Ms Frederickson went to the hotel at Mingenew, because Ms Frederickson's friends managed it. They cashed their pay checks for $180 at the hotel and bought some alcohol. After the hotel closed, they went to a party. Ms Dodd drank some alcohol but did not get very drunk.[79] The following day Ms Dodd told Ms Frederickson that she had been intimate with a young man but that she did not want to have a relationship with him.[80] Ms Dodd and Ms Frederickson got a lift back to Dongara.

108 Ms Dodd told Ms Frederickson that she did not like the roustabout work because it was physically too hard for her.[81] On Monday, 26 July 1999, Ms Dodd and Ms Frederickson walked around Dongara and Ms Dodd put her name down at a number of businesses for work.[82] This behaviour was consistent with her wanting to get employment and stay in the area and also with her wanting to obtain proof that she was searching for work so as to maintain her entitlement to Centrelink benefits.

109 Ms Dodd and Ms Frederickson spoke to one another about getting a caravan together at the Dongara Strata Caravan Park, so that they would not have to live with other people.[83]

110 On Tuesday, 27 July 1999, the girls' Centrelink benefits were paid into their bank accounts. Ms Dodd received a Youth Allowance of $270 per fortnight. It was paid directly into her Bankwest bank account.[84] Ms Dodd only had the one bank account and a key card to access that account.

111 Sometime on 27 July 1999 Ms Dodd and Ms Frederickson went to the Treefrog Book & Crystal Shop in Dongara (the Treefrog shop). Ms Dodd purchased a pair of silver metal earrings with a turquoise coloured stone in them. Ms Frederickson also wanted a pair, but there was only one set on display for purchase.[85] The earrings were in the design of the ankh, which is sometimes called the Egyptian cross, and the stone was in the middle of the ankh. Ms Frederickson described the ankh as being 2.5 cm ‑ 3 cm long.[86] The ankh was attached to a hook shaped piece of metal which looped through a pierced ear (shepherd's hook).[87] Ms Dodd also purchased a couple of silver rings.[88]

112 Ms Frederickson's evidence about Ms Dodd's purchase of the earrings is supported by the evidence of Ms Zandrea Morgan, the sales assistant from the Treefrog shop who recalls selling jewellery to Ms Dodd in July 1999, a few days before she saw a photograph of Ms Dodd on the news.[89] Ms Morgan told the police that she sold one or two rings to Ms Dodd. Although she did not mention earrings to the police, she testified that she sold rings or earrings but she could not recall any more specifics.[90]

113 In cross‑examination, Ms Frederickson conceded that in her first statement to the police on 1 August 1999, she did not say that the earrings were bought at the Treefrog shop.[91] The only items she mentioned having been bought at the Treefrog shop were two rings. I do not consider this to be a significant omission. At the time that Ms Frederickson gave her statement, the place and time of purchase of the earrings was not a significant issue. She told the police that Ms Dodd owned the earrings and on 2 August 1999, she drew for the police a detailed picture of the earrings and other jewellery purchased by Ms Dodd.[92] Ms Frederickson made a second statement on 22 August 1999 in which she said that the earrings were purchased at the Treefrog shop.[93]

114 In the course of her evidence, Ms Frederickson also acknowledged that when she was re‑interviewed in 2013 and she made a third statement, she told the interviewing police officer that the earrings were purchased in Geraldton.[94] Ms Frederickson testified that this was an error. She gave reasons for her error. She said that the events had occurred 13 or 14 years earlier. In 2013, she had not had the opportunity to refresh her memory from her earlier statements, was very upset at being reminded of what are traumatic events and had a lot of personal problems at the time.[95] She testified that having refreshed her memory from her earlier statements she was certain that the earrings were purchased from the Treefrog shop by Ms Dodd.[96] I accept her evidence. The reasons she gave for the error she made in 2013 sufficiently explain why she made the mistake.

115 The then proprietor of the Treefrog shop, Ms Helen James, testified that she saw Ms Dodd's image in the media. She recalled a person who looked like the image in the media purchasing jewellery from the shop a few days to a week beforehand.[97] She said that she was alone in the shop and the customer was also alone.[98] She said that it was the fact that the media information disclosed that Ms Dodd had a backpack which reminded her of the customer. A couple of things are notable about this evidence. First, Ms James said that the customer was alone[99] and secondly, Ms James' physical description of the customer did not match the description of Ms Dodd.[100]

116 Ms James testified that the sort of jewellery she told at the Treefrog shop was not available anywhere else in Dongara. She said that it may have been stocked by a new age shop in Geraldton, but other than that Perth would have been the location of the nearest retailer of similar jewellery.[101]

117 On 25 November 2013 a police officer showed Ms James three photographs of the ankh earring found by Ms Horner on the seat cover seized from Mr McConnell's ute on 6 August 1999. She said that the earring was identical to an earring which she sold in the Treefrog shop, although it looked bigger in the photographs.[102] This was not surprising as they were close up photographs of the earring. In cross‑examination, when reminded that in her police statement she had said that the earrings were similar to the one she stocked, she agreed that the earring was similar.[103] In re‑examination she said that the earrings were very similar and that there were no differences between the earring and the type she stocked.[104]'

118 Ms James said that she stocked two sizes of these earrings. One size was around 2.5 cm long and the other around 3.5 cm long. The smaller size cost $15.00 and the larger size cost $25.00. She said that the earrings sold 'really well'. About once a month she would order about six pairs of these particular earrings in each size and she would order more in school holiday periods.[105]

119 I conclude that Ms Dodd purchased the ankh earrings when she was in the Treefrog shop with Ms Frederickson on Tuesday, 27 July 1999. I do not exclude the possibility that Ms Dodd may have been in the shop on another occasion when Ms James was serving alone in the shop. She may also have purchased other jewellery at that time.

120 Also on Tuesday 27 July 1999, Ms Frederickson's then boyfriend, Mr Jamie Hutchinson, drove the girls to Geraldton.[106] In Geraldton, Ms Dodd purchased a number of items, including clothing, make‑up, sunglasses, and jewellery.[107]

121 Ms Dodd still wanted to visit the Hammond family at the Seldom Seen farm. On Wednesday, 28 July 1999, Ms Dodd telephoned Keith Hammond and told him that she was planning to visit the farm on Thursday, 29 July or Friday, 30 July 1999.[108] He told her that he would not be home on Thursday as he would be attending to responsibilities as a Shire councillor.[109] He told her that if she arrived at the farm before he returned home she could make herself at home until he returned. She did not tell him that she planned to hitchhike to the farm and he presumed she had a car.[110]

122 Ms Dodd telephoned her mother and asked her to deposit $150 into her bank account as she had run out of money.[111] Mrs Dodd said she would see what she could do. Ms Dodd had received $450 in wages and government benefits in the previous week and she had spent all of this money on living expenses, clothes, jewellery, toiletries and alcohol. There is no evidence that she was saving money for a planned disappearance and the evidence indicates that she was still highly dependent on her parents for support.

123 On the evening of 28 July 1999, Ms Dodd gave Ms Frederickson her Bankwest key card and gave her permission to withdraw $100 from her account after her mother had deposited money into it.[112] The money was to assist with the rent of the caravan in Dongara. The plan was that Ms Frederickson would obtain accommodation for the pair at the Dongara Strata Caravan Park whilst Ms Dodd was at the farm. Ms Frederickson gave Ms Dodd the phone number for the caravan park, and it was agreed between them that Ms Dodd would telephone when she had reached the farm.[113]

124 I conclude that, consistent with what she told Ms Frederickson, Ms Dodd intended to return to Dongara after visiting the Seldom Seen farm for a couple of days.

125 On Thursday, 29 July 1999, Ms Dodd woke and dressed before Ms Frederickson. She was wearing a pair of dark blue jeans, brown hiking boots, a black singlet‑type top and a black tight fitting cardigan with a single top button. The cardigan was made of a stretchy, polyester‑type fabric. Over the top of that she had a grey Dunlop brand jacket.[114] Sometime in the morning she left Ms Frederickson to hitchhike to the Seldom Seen farm via Badgingarra.[115]

126 When she left Ms Frederickson, Ms Dodd was wearing the clothes I have just described. She had on numerous silver rings, a silver cross necklace with a figure of Jesus and the ankh earrings she had purchased at the Treefrog shop.[116] I accept Ms Frederickson's evidence in this respect as she recalled seeing the earrings in Ms Dodd's ears when she gave Ms Dodd a farewell hug.

127 Ms Dodd was carrying an Equip brand backpack, which contained more clothes. She also had a Quiksilver brand purse with a long shoulder strap. Other items she had with her included a camera, a map of Western Australia which Ms Frederickson had marked with the route of their journey,[117] Ms Frederickson's pocket knife and $5 ‑ $6 which Ms Frederickson had given to her.[118] Ms Frederickson also gave her a postcard to post to her daughter in Mount Magnet. The card arrived at its intended address on 2 August 1999 and so someone posted it.[119]

128 Ms Dodd walked in a southerly direction along Brand Highway. Mr Donald Spry was driving a prime mover and towing a trailer with an excavator on it when he passed Ms Dodd approximately 700 m ‑ 800 m south of Dongara. He stopped at the Ampol service station on Brand Highway. Shortly afterwards, Ms Dodd approached Mr Spry and asked him if he was going to Perth. He told her that he was and she asked for a lift to Badgingarra. Mr Spry agreed to give her a lift in his truck.[120]

129 Mr Spry noted that Ms Dodd was wearing black and that she had a backpack and a map on which she followed their progress towards Badgingarra.[121]

130 On the way Ms Dodd introduced herself as 'Hayley' and Mr Spry described her as 'bubbly'.[122] Ms Dodd told Mr Spry that she had been working as a roustabout and that she was going to stay with friends in Moora. She said she would be returning to Dongara in the near future. Mr Spry told her that he would be travelling back to the Dongara area and offered her a lift should she require one. He gave her a piece of paper with his name and mobile telephone number on it.

131 Ms Dodd told Mr Spry that she was expecting her mother to deposit money into her bank account but it had not arrived and she had no money in her account. Mr Spry gave her about $15 before she got out of his truck.[123]

132 At Badgingarra, Mr Spry turned left off the highway. Because of the size of his truck, Mr Spry could not pull up on the side of the highway. He drove his truck so that it was facing back towards the highway. He stopped the truck on the southern gravel verge of Meagher Drive, near a speed sign which was between the roadhouse and the highway. Ms Dodd got out of the truck and Mr Spry continued on his trip to Perth. He did not hear from her again.[124]

133 Mr Spry testified that he dropped Ms Dodd off at just before 11.00 am[125] but other sightings of Ms Dodd[126] and telephone records prove that it was close to 10.30 am.[127]

134 Ms Dodd went to the public telephone box situated on the verge outside of the roadhouse.[128] She called the Dongara Strata Caravan Park at 10.35 am on 29 July 1999. The duration of this call was 47 seconds.[129] She spoke to a receptionist and asked to leave a message for her friend 'Lisa' to say that she was in Badgingarra.[130] It is agreed that at 10.38 am Ms Dodd purchased a bottle of water and a packet of potato chips at the roadhouse.[131]

135 Ms Dodd then started to walk along Meagher Drive, towards North West Road. She was not hitchhiking.[132] She was seen on Meagher Drive by Mr Michael Russell, a gasfitter, who drove into Badgingarra at approximately 10.30 am ‑ 11.00 am.[133]

Witnesses who claim to have seen a girl on North West Road on 29 July 1999

136 Mr John Piper saw Ms Dodd walking along the north side of North West Road, about half a kilometre from the Badgingarra town site, near the Badgingarra golf course, as he drove into Badgingarra from his home on the corner of North West Road and Winjardie Road.[134] He did not give evidence of the time he saw Ms Dodd but he said that he drove into Badgingarra after having morning tea at home at 9.30 am and then making some telephone calls.[135] His sighting of Ms Dodd is consistent with her leaving the roadhouse and starting to walk east, along North West Road, soon after she had purchased her chips and water. She was not hitchhiking when Mr Piper saw her.

137 Mr Piper described the girl he saw as wearing dark jeans, a short sleeved top which was dark blue and a grey or brown jumper tied around her waist.[136] Although the description of her clothing is not quite the same as that given by Ms Frederickson, it is likely that the top described by Mr Piper was the black cardigan and/or top described by Ms Frederickson and the jumper Mr Piper said was tied around her waist was the Dunlop brand jacket.

138 Mr Piper returned to his home along the same route about 1½ ‑ 1¾ hours later, that is, between about 11.15 am and 11.30 am. He did not see Ms Dodd or anything out of the ordinary.[137] This is consistent with her having travelled past North West Road and Winjardie Road junction by the time Mr Piper drove home.

139 Ms Dodd was also seen by Mrs Margaret Johnson, as she drove her gold coloured Holden Commodore sedan from Badgingarra to her workplace at Badgingarra Research Station, which was situated on Winjardie Road. Mrs Johnson does not recall the time she saw Ms Dodd but she said that the normal time at which she drove into Badgingarra to collect the mail was about 11.30 am ‑ 11.40 am.[138] She said that the trip took 10 minutes or maybe a bit longer and that she spent about 10 minutes in Badgingarra before she made the return trip and picked up Ms Dodd.[139] If Mrs Johnson made the trip at her usual time, she would have seen Ms Dodd at the earliest at 11.50 am.

140 Another witness who claims to have seen Ms Dodd in the same area, but around midday, is Mr Paul Wilkins. However his statement was given in 2015 and he was relying on his memory in order to estimate the time.[140] I also note that he is wrong about the spot he says he saw Ms Dodd on the side of the road because Ms Dodd travelled that section of road in Mrs Johnson's car, as I will now describe.

141 The times given by Ms Johnson and Mr Wilkins are inconsistent with that of other witnesses including Mr Giles, Mr Rowland, Mr Piper Mr Skipworth, Mr Moltoni and Mr and Mrs Weaver, whose evidence I will next recount. I find that Mrs Johnson made the trip earlier than she recalls that she usually made the trip to Badgingarra.

142 Just after the golf course, Mrs Johnson saw Ms Dodd walking on the north side of North West Road.[141] Ms Dodd was not hitchhiking but Mrs Johnson stopped her car and asked Ms Dodd where she was going. Mrs Johnson and each witness who was asked said that it was very unusual for a young girl to be walking along North West Road by herself.[142] Ms Dodd told her that she was going to Moora and Mrs Johnson told her that she could not take her that far but that she could give her a lift a bit further along the road. Ms Dodd accepted the lift and got into the front passenger seat of Mrs Johnson's car.[143]

143 Ms Dodd told Mrs Johnson that she was going to visit friends who lived near Moora. She mentioned their name but Mrs Johnson did not know them. She said that they were expecting her at about 6.00 pm. She had got to Badgingarra quicker than she thought, and her friends would not be home when she arrived. Mrs Johnson asked whether she would be able to get into her friend's place if they were not home. Ms Dodd said she would. Ms Dodd had a bottle of water and a map in her hand. She had her jacket tied around her waist. Mrs Johnson turned left into Winjardie Road and dropped Ms Dodd off a short distance from the corner. She last saw Ms Dodd crossing North West Road onto the south side of the road.[144]

144 A married couple, Mark and Fiona Weaver, testified that just before 11.00 am they were driving in an easterly direction along North West Road, going to Badgingarra Primary School, which was on McNamara Road. The Weavers saw Ms Dodd get out of Mrs Johnson's car which had stopped after it turned off North West Road onto Winjardie Road. They noticed Ms Dodd start to walk on the north side of North West Road in an easterly direction.[145]

145 The Weavers then went to Badgingarra Primary School. They said that at approximately 11.15 am, they left the primary school and turned onto North West Road. They travelled in an easterly direction, towards the Badgingarra rubbish tip, which is on the northern side of North West Road, 400 m from the junction of North West Road and McNamara Road. Close to the entry of the rubbish tip, they saw Ms Dodd walking on the northern side of the road and in the same direction as they were travelling. She was not hitchhiking. Mr and Mrs Weaver drove into the rubbish tip and drove around the loop road in the tip. Only a couple of minutes later they exited the tip and turned right onto North West Road to return home. Ms Dodd had walked about 100 m further along North West Road towards Moora. She was not hitchhiking and she did not try to get their attention.[146]

146 Mr and Mrs Weaver said that they knew what time it was because they were timing their visit to the primary school to coincide with recess which they believed was at 11.00 am.[147] However there is evidence from the then Badgingarra Primary School principal, Ms Angela Wilkinson, that recess was held usually between 10.20 am ‑ 10.35 am.[148] Unfortunately, this discrepancy was not put to Mr and Mrs Weaver and so I do not know what their response to it would have been. I also note that Ms Wilkinson was on sick leave between 19 July ‑ 6 August 1999.[149] Consequently, whilst she could give evidence about the usual recess time, she could not give direct evidence as to when recess occurred on 29 July 1999.

147 Even accepting that Mrs Johnson dropped Ms Dodd off earlier than she thought she did, Mrs Johnson could not have dropped Ms Dodd at the corner of North West Road and Winjardie Road by 10.20 am because Ms Dodd did not leave the roadhouse until after 10.38 am. Mrs Johnson was a patently honest witness and her evidence is entirely inconsistent with her travelling east along North West Road as early as 10.20 am.

148 I conclude that Mr and Mrs Weaver are incorrect in their evidence that they were at the primary school at recess. I am of the opinion that they were at the school around 11.00 am, as they testified. It is possible that at this point in the day Ms Dodd was not in a hurry to get to the Seldom Seen Farm because she knew that no one would be home so early in the day.

149 Another witness who saw Ms Dodd at about the same spot was Mr Laurie Giles, a transport driver. He was driving a white Toyota Hilux four wheel drive dual cab ute with a roo bar and roof rack. He was driving in a westerly direction along North West Road. He saw Ms Dodd when he passed a sign indicating the old Badgingarra town site. That would have been close to the intersection of McNamara Road and North West Road. He estimated the time to be between 11.00 am and 11.30 am.[150]

150 Two other witnesses who saw Ms Dodd at around the same time were brothers‑in‑law, Mr David Skipworth and Mr Carl Moltoni. They were local residents who planned to travel to Jurien Bay for a fishing trip.[151] At about 10.30 am they met on the corner of North West Road and Dandaragan Road, having driven to that spot in different cars.[152] After a short conversation, Mr Skipworth drove his car in a westerly direction on North West Road, heading for Jurien Bay.

151 About 10 minutes along the road,[153] Mr Skipworth saw his cousin, Mr Geoffrey Wyatt, driving the shire rubbish truck in the opposite direction. Mr Skipworth said that he saw Mr Wyatt after he had passed the houses on the Ellis farm, which is on North West Road, east of Muthawandery Road.[154] He estimated that he saw Mr Wyatt a short distance to the east of the intersection of North West Road and Muthawandery Road.[155] Mr Ellis estimated that his farm gate which leads to the houses on his property to be about 8 km east of the intersection of North West Road and Muthawandery Road.[156] This evidence tends to suggest that Mr Skipworth saw Mr Wyatt further to the east than he recalled at the time he gave his evidence. This is especially so given that Mr Wyatt thought that he saw Mr Skipworth near Kolburn Road,[157] which is about 10 km further east than the meeting point indicated by Mr Skipworth.[158]

152 Both Mr Wyatt and Mr Skipworth stopped their vehicles and Mr Wyatt got out of the rubbish truck to speak to Mr Skipworth. Mr Wyatt was planning to travel to Jurien Bay the following day and wanted to talk about the plans for the trip.[159]

153 After another short conversation, Mr Skipworth and Mr Wyatt continued their trips, in opposite directions along North West Road.[160] Mr Skipworth saw Ms Dodd standing on the northern side of North West Road at the corner of Winjardie Road. That is the same general location at which she was dropped off by Mrs Johnson.[161] Mr Skipworth did not wear a watch. He estimated that he saw Ms Dodd 20 minutes after he saw Mr Wyatt, at about 11.00 am.[162] I am satisfied that it was about 11.00 am. This is further confirmed by an EFTPOS receipt he received from the general store in Jurien Bay which has a time stamp of 11.47 am.[163] Jurien Bay is about 60 km north west of Badgingarra.

154 Other evidence which helps to set the time of these events and sightings comes from Mr Wyatt and the till roll from the Badgingarra Roadhouse. Mr Wyatt agreed in cross‑examination that he had 'smoko' at the Badgingarra Roadhouse around 10.00 am.[164] My assessment of his evidence about times is that Mr Wyatt did not know the exact time he did certain things. He could only estimate the time events occurred.

155 Mr Wyatt also said that he purchased a pie and an iced coffee for his morning tea.[165] The State submits that the only transaction on the till roll from the Badgingarra Roadhouse,[166] which reflects a purchase of one cold drink and one piece of hot food at about 10.00 am is transaction #49 which is recorded as taking place at 6.05 am. As the parties agree that the till clock was three hours and 39 mins slow,[167] the transaction actually occurred at 9.44 am. Based on Mr Wyatt's evidence of what he did after that and the time it took him to do it, Mr Wyatt would have driven back to Moora, via North West Road between about 10.00 am and 11.00 am. In that period he also drove into the Badgingarra tip and deposited rubbish. Thus Mr Wyatt would have left the roadhouse and driven the initial section of North West Road well before Ms Dodd arrived in Badgingarra.[168] He would have arrived in Moora before the accused left.

156 After speaking to Mr Skipworth, Mr Moltoni drove his car to the farm of Mr Nigel Streppel, a short distance away in an easterly direction on North West Road.[169]

157 Mr Streppel, who was also going fishing, had told Mr Moltoni that he was going to ride his motorbike to Jurien Bay. Mr Moltoni dropped in at Mr Streppel's home to pick up Mr Streppel's personal belongings, food and drink which Mr Streppel would not be able to carry on his bike.[170] Mr Moltoni testified that he looked at the clock in his car when he left Mr Streppel's home to drive to Jurien Bay and that it was 10.42 am.[171] I accept that it was close to 10.42 am.

158 About 6 km ‑ 7 km past the junction of Dandaragan Road with North West Road, Mr Moltoni passed Mr Wyatt's rubbish truck travelling in the opposite direction.[172] This would have been shortly before 10.50 am. Neither vehicle stopped. Fifteen ‑ 20 minutes later Mr Moltoni saw Ms Dodd on the north side of the road just before the old Badgingarra town site.[173] This is consistent with Mr Moltoni seeing Ms Dodd after Mr and Mrs Weaver first saw Ms Dodd and before they saw her for her second time and shortly after Mr Skipworth saw her. Mr Moltoni did not stop. He continued driving to Jurien Bay.[174]

159 Mr Stephen Koeberle was a private courier working for Australia Post. He saw Ms Dodd as he drove east along North West Road, having come from the new Badgingarra town site. When he was about to turn right onto Badgingarra Road in order to travel to Dandaragan, he saw Ms Dodd approximately 20 m west of the intersection of Badgingarra Road and North West Road.[175]

160 He timed his sighting of Ms Dodd according to the usual times it took him to do his mail run. He estimated that he left Badgingarra at about 11.10 am.[176] It took him about 40 ‑ 45 minutes to get to Dandaragan from Badgingarra. He would have arrived in Dandaragan at about 11.45 am ‑ 11.50 am. This means that he would have seen Ms Dodd at about 11.20 am. He emphasised that these times were approximate.[177]

161 Ms Eileen Purser was also travelling on North West Road that morning between 11.15 am and 11.20 am. She saw Ms Dodd on North West Road east of the intersection of North West Road and Badgingarra Road. Ms Dodd was walking towards Moora and she was not actively hitchhiking.[178]

162 It is about 1.5 km from the corner of Winjardie Road and North West Road to the corner of North West Road and Badgingarra Road. It would take about 10 ‑ 15 minutes for Ms Dodd to walk this distance. Thus, I am satisfied that Ms Purser and Mr Koeberle saw Ms Dodd after Mr and Mrs Weaver had seen her on the second occasion. After Mr and Mrs Weaver saw Ms Dodd on the second occasion, she continued walking in an easterly direction along North West Road. Not only is this consistent with the time it would have taken Ms Dodd to walk this distance, it is also extremely unlikely that a motorist would have stopped and given her a lift for only 1.5 km.

163 Mr Donald Cheek and Mr Timothy Jankowski saw Ms Dodd along the same stretch of road. They were travelling in convoy in a westerly direction along North West Road. Mr Cheek was driving an escort vehicle in front of Mr Jankowski's Scania prime mover which was towing an oversize trailer with farm machinery on it.[179]

164 Mr Cheek's evidence is that he saw a girl as he rounded a slight bend and incline. She was standing on the north side of the road. He recalled that roughly 300 m after passing her, there was a road to the right joining North West Road.[180] He estimated that he would have been about 500 m in front of Mr Jankowski's truck. He estimated the time to be somewhere around 11.00 am to 11.30 am.[181]

165 Mr Jankowski testified that at about 11.20 am ‑ 11.30 am he saw a girl walking towards him on the north side of the road.[182] He could not pinpoint the location but he said that she was either on the eastern side of the Winjardie Road junction or the eastern side of the Badgingarra junction.[183] Mr Jankowski drove back along the same stretch of road at about 2.00 pm and did not see Ms Dodd or anything out of the ordinary.[184]

166 Based on the estimated times given by Mr Jankowski and Mr Cheek, it is likely that they saw Ms Dodd on North West road close to the intersection with Badgingarra Road.

167 Between 7.30 am and 8.00 am on 29 July 1999,[185] Telstra employees including Mr Les Cousins, Mr Graham Burnett, Mr Bruce Smith, Mr Leonard Hale, and Mr Keith Barrett had a meeting at the Telstra depot in Moora. The meeting finished at about 10.30 am and the men then dispersed and went about their duties.[186]

168 Mr Hale drove from Moora to Jurien Bay, via North West Road. He was driving a white Nissan Patrol utility, around a 1996 model, which was a tray top ute with cabinets and ladder racks on the back. The utility had two ladders on the back and a large HF radio telephone aerial on the front left‑hand side. It was also displaying Telstra signage. He saw Ms Dodd in the stretch of road between Wathingarra Road and Badgingarra Road,[187] which is 6.7 km long.[188] Mr Hale was only able to estimate that he saw Ms Dodd at about 11.30 am, somewhere along that stretch of road.[189] The accused submits that Mr Hale would have seen Ms Dodd just after 11.00 am, and just past the intersection of Badgingarra Road with North West Road. I do not think Mr Hale's evidence permits me to be so precise in my findings.

169 In July 1999, Mr David Stribley was the manager of the Elders shop in Moora. On 29 July 1999, he drove to the Creswick farm, which was situated along Badgingarra Road about 5 ‑ 6 km south of the intersection of Badgingarra Road with North West Road, to deliver some chemicals.[190] Prior to arriving at the property, he saw Mr Koeberle's vehicle travelling in the opposite direction towards him after Mr Koeberle had turned from North West Road onto Badgingarra Road to drive towards Dandaragan.[191] I have found that Mr Koeberle saw Ms Dodd at approximately 11.20 am at about the intersection of Badgingarra Road and North West Road. It had to be a few minutes after this that Mr Stribley saw Mr Koeberle and that he arrived at Creswick farm.

170 Mr Stribley estimated that he spent about 10 ‑ 15 minutes at the farm and that he departed the property at about 11.30 am. He heard the theme music for an ABC radio programme, called 'The World Today', as he left the farm. He turned onto Badgingarra Road and then right onto North West Road. He drove in an easterly direction towards Moora.[192]

171 Mr Stribley was travelling at between 120 km per hour and 130 km per hour on North West Road. As a rise in the road crowned out, from a distance he saw Ms Dodd. At first he thought that she may be an animal which may run in front of his car and so he reduced his speed a little bit. As he got closer he saw that it was a person who was kneeling down and fiddling with a backpack.[193]

172 He described Ms Dodd's location as being on the west side of a driveway to a farm on the north side of North West Road. He said that a few days later he had taken a police officer to the spot he saw Ms Dodd. He identified it by virtue of the driveway. There was also a large tree under which Ms Dodd was standing. The driveway was to the Roberts farm.[194]

173 In 2017, he also took a police officer to the spot where he saw Ms Dodd.[195] The officer took photos underneath the tree which show that there is now a small sign which says '961' (the 961 marker).[196] This marker has been placed there since 1999. It signifies that it is 961 m (9.61 km) from the junction of the Brand Highway and North West Road to that point. It is 48.7 km from the 961 marker to Moora. The 961 marker is on the northern side of North West Road, 1.6 km east of the junction with Badgingarra Road and 5.1 km to the west of the junction with Wathingarra Road.

174 Mr Stribley said that it would not have been more than 10 minutes after he left the Creswick farm that he saw Ms Dodd.[197] This means that he saw her around 11.40 am.

175 Mr Stribley was cross‑examined about a previous statement he had made to the police to the effect that he knew he had left the Creswick farm at about 11.30 am because that was the time 'The World Today' started and he heard the theme music when he left the farm.[198]

176 By the time of the trial, it was not disputed that 'The World Today' started at around 11.10 am on Thursday, 29 July 1999. Mr Stribley testified that he had been told of the different start time by police after he made his first statement. He said that he was certain that the theme music he heard on the radio was played between segments of the show. He maintained that he was certain that he had left the Creswick farm at around 11.30 am. He has always been consistent on this time.

177 Mr Stribley was an apparently credible witness. I am aware that even an honest witnesses who is doing their best to accurately recall events can be wrong. This is particularly so when the events occurred a long time in the past, as in this case.

178 However after considering Mr Stribley's evidence against other facts which I have found, I am satisfied that Mr Stribley saw Ms Dodd near the location of the 961 marker[199] at about 11.40 am on 29 July 1999. That is because Mr Stribley's evidence about timing is consistent with my findings as to the time Ms Purser, Mr Hale, Mr Giles Mr Jankowski, Mr Cheek and Mr Koeberle saw Ms Dodd and with the time it would have taken Ms Dodd to walk from the spot she was seen by Mr Koeberle to the location of the 961 marker. Mr Stribley's evidence as to when he saw Mr Koeberle is also consistent with the time Mr Koeberle would have been driving down Badgingarra Road.

179 As I have found that Mr Koeberle saw Ms Dodd at about 11.20 am on North West Road, it would not be possible for Mr Stribley to have seen Mr Koeberle on Badgingarra Road after that sighting, go to the Creswick farm and to have seen Ms Dodd shortly after 11.10 am on North West Road. Whereas if Mr Stribley saw Ms Dodd at about 11.40 am, the timing is consistent with my other findings. However I take into account that all the times given are approximations only.

180 Mr Stribley said he was speeding on his way back to Moora and he arrived there between 12.15 pm and 12.20 pm.[200] On his way he saw three cars. The first was an older style dirty white farm ute. He seemed to think that it was a Japanese made vehicle but also said that he did not know its make. It is possible that this was Mr McConnell's ute. The second was a Telstra van. I will refer to this vehicle in more detail when considering Mr Barrett's evidence. Mr Stribley could not recall the third vehicle but it was not a truck or van.[201]

181 On 29 July 1999, Mr Norman Smith drove, with his wife Mrs Kim Smith as the only passenger, in their Nissan Patrol 1999 model, from Geraldton to their farm at Lake Hines. To do so Mr Smith drove south along the Brand Highway. He stopped in Dongara for fuel and left there at about 9.50 am. This is confirmed by a receipt for the fuel.[202] He then stopped at a road side stop which was just north of Badgingarra and they had a cup of tea from a thermos which they carried with them and they also used the toilet facilities.[203] Both Mr and Mrs Smith estimated that they left that site at about 11.30 am.[204] Mr Smith then drove south on the Brand Highway and turned left at Badgingarra. They did not stop at Badgingarra. Both Mr and Mrs Smith gave evidence that at about 11.40 am they saw a girl walking on the northern side of North West Road between Lesueur Drive and the eastern boundary of the Badgingarra Golf Course.[205] They continued to drive to Moora along North West Road and arrived at 12.10 pm ‑ 12.15 pm.[206]

182 The time that Mr and Mrs Smith said they saw the girl loosely fits with the time it would have taken Mr Smith to drive from the service station in Dongara to a spot near the eastern boundary of the golf course, with time to stop for a break. On 15 September 2017, Detective Senior Constable Debbie Chapman drove from the service station in Dongara to a point 2 km along North West Road at the posted speed limits. It took one hour and 32 minutes.[207]

183 Mr Smith described the girl as being about 16 ‑ 17 years of age, with black hair, probably a little bit below the shoulder. She had tracksuit pants on which were navy blue in colour. She had on a sleeveless top and it had a bit of a marking around the chest area. He thought that it was probably navy blue or something like that. She had light coloured jogger shoes on and she was also carrying a little backpack on her back. She was not overly big or overly small, just petite. She was not actively hitchhiking. She was walking quite briskly along the road.[208]

184 Mr Smith said that he was partially colour blind. It was not explained how, if at all, this would affect his description of the girl's hair or clothing.[209]

185 Mrs Smith testified that she saw the girl walking down the left‑hand side of the road in the direction of Moora only a few minutes after her husband turned off the Brand Highway.[210] She knew where the golf course was and she was sure that the girl was around that area.[211]

186 Mrs Smith described the girl as 'a little girl' because she was about 15 or 16 years of age and not very tall, about 5' or 5'2".[212] She had dark shoulder length hair and everyday clothes like a tracksuit and a backpack. She noticed 'white - like a stripe on her', but she was not sure exactly where. She was not able to describe the backpack.[213]

187 Mr and Mrs Smith appeared to be honest witnesses who were doing their best to recall accurately what they had seen that day. On the other hand, I doubt the independence of their recollections given their close relationship.

188 If I accept that Mr and Mrs Smith saw Ms Dodd near to the golf course at about 11.40 am, I would not be able to accept Mr Stribley's evidence and it would seriously throw into doubt the evidence of Ms Purser, Mr Hale, Mr Jankowski, Mr Cheek and Mr Koeberle about their sightings of Ms Dodd around the same time as Mr and Mrs Smith, some distance away from the golf course. Given the inconsistency between Mr and Mrs Smith's evidence and that of other witnesses, I have concluded that Mr and Mrs Smith's evidence is wrong in that either they did not see Ms Dodd or they did not see her where they believe they saw her.

189 Mr Smith gave evidence that he was travelling at 110 km per hour. There is a record in a police serial[214] that he told police that he had been travelling at 118 km per hour on the Brand Highway.[215] In cross‑examination, Mr Smith denied that he had been travelling at 118 km per hour or that he had told the police that he had so. Given those denials and in the absence of other evidence to support such a finding, I am not able to find that he drove that speed. If Mr Smith had travelled at 118 km per hour from Dongara to Badgingarra, it would make only six to seven minutes difference on his journey time. This is insufficient to explain how he and Mrs Smith could have seen Ms Dodd near the golf course 11.40 am.

190 The State suggests that Mr and Mrs Smith may not have stopped for a cup of tea along on the Brand Highway, given that they had already had breakfast. That is speculation. In any event it would still only put Mr and Mrs Smith at that point on North West Road at 11.15 am at the earliest. This is still too late for Ms Dodd to be in that area.

191 It would make no sense for Ms Dodd to have been driven to, or to have walked past, a point east of Badgingarra Road and North West Road intersection, for her to have accepted a lift back to Badgingarra, and then for her to have started walking again in an easterly direction towards Moora, as Mr and Mrs Smith testified she was doing. If Ms Dodd had decided for some unknown reason to return to Badgingarra, it would be entirely contrary to common sense for her to have set off on foot a short time later on in the direction from which she had just come.

192 Mr and Mrs Smith testified that approximately 10 minutes after they saw the girl, they saw a utility which Mr Smith describes as a Holden HQ ute driving in the opposite direction from Moora.[216] It is not in dispute that Mr McConnell's ute which the accused was driving that day was a 1973 Holden HQ ute. However it is not possible for me to conclude that the ute Mr and Mrs Smith saw was being driven by the accused as the ute described by Mr Smith was quite different from Mr McConnell's ute.[217] For example, the ute described by Mr Smith did not have a bull bar, antenna or cargo cover similar to Mr McConnell's ute.

193 After the Telstra morning meeting, Mr Smith and Mr Burnett worked together for the rest of the day because Mr Smith was relatively new to Telstra in Moora. On the other hand, Mr Burnett was very familiar with the job and the area having worked for Telstra in Moora as a linesman between 1985 -1997. He worked in the area again from 1998 ‑ 2006.

194 At about midday, Mr Smith and Mr Burnett left Moora in convoy. Mr Burnett was leading the way in a white Nissan Patrol 4WD station wagon with four doors. Mr Smith said that his own vehicle was just two doors with a cab and that he had an equipment box on the back, whereas Mr Burnett said that Mr Smith was driving a Toyota LandCruiser station wagon. On the rooves they each had ladders and tubes for pipes and cables.

195 In evidence‑in‑chief, Mr Smith initially said that they drove north from Moora up Midlands Road to a telephone exchange which was east of Midlands Road. He said that he would have arrived at about 12.40 pm. He even pointed to the area on a map which was to the east of Midlands Road, which is a long way from North West Road. He said that they were there for about 20 ‑ 25 minutes. At about 1.15 pm ‑ 1.20 pm he said they drove back to the Cook Farm. Mr Smith said that they drove in a southerly direction. They turned right, back into the street on which they had driven in. When they were driving down a hill he said he saw a young girl standing on the side of the road, looking for a lift. He said that she was she was standing at a T‑junction where they turned right.

196 When he was asked to identify where the Cook farm was, he said that he was certain that it was on Midlands Road, about 5 or 6 km up on the left‑hand side. Mr Smith said that Mr Burnett was driving about 100 m in front of him. They had stopped at the T‑junction and the girl was standing on the opposite side of the road, heading north.

197 Mr Smith testified that the girl did not put her finger out to indicate she was looking for a lift. Mr Smith said that when they got to the Cook farm at about 1.30 pm, he asked Mr Burnett 'Did you see the young girl standing on the side of the road' and Mr Burnett said 'no'.

198 Mr Smith described the girl as wearing blue jeans, a jumper tied around her waist and wearing a light coloured top. He said that she was about 16 ‑ 17.

199 Mr Burnett and Mr Smith did some work at the Cook farm and Mr Burnett left at one point to go back to the exchange. Mr Smith remained on the property. After a time Mr Burnett returned. After about 45 minutes to one hour, they returned to Moora. Neither man saw a girl on the side of the road on the way back to Moora.

200 Whilst they were at the Cook farm, some police officers arrived. Mr Smith believes that this was just after he had driven through the gate, ready to go up to the house.

201 In cross‑examination, Mr Smith said that he was 'at a loss' because he had been called down to Perth and had not brought his statement with him so he could be prepared for court. His evidence about where he had been on 29 July 1999 and where he had seen the girl then changed.

202 He agreed that he had called his then wife from the first telephone exchange he and Mr Burnett worked at that day. The evidence shows that call was made from the Yallalie exchange at about 1.10 pm. He also agreed that when he made his statement in 2002 he had said that the exchange was on Coomberdale West Road at the intersection of Muthawandery West Road. He had said that to get there they had driven on North West Road to Coomberdale West Road. On the return journey when they drove out of Coomberdale West Road onto North West Road, he had seen the girl.

203 Despite giving completely different evidence in examination‑in‑chief to that which he gave in cross‑examination about his location and about where he saw the girl, he said that he would 'always remember' seeing the girl.[218]

204 Mr Burnett, in his evidence‑in‑chief, was clear that he and Mr Smith had driven out of Moora to the Yallalie exchange situated on the corner of Muthawandery and Coomberdale West Road. He estimated that they left Moora at about 12.30 pm. He said that he knew where they were going and so he was leading the way.

205 Mr Burnett said that he left Moora via Dandaragan Road and North West Road. He then turned right at Muthawandery Road and travelled along it until they reached the exchange. Mr Burnett thought that they were at the exchange for 15 ‑ 20 minutes. In cross‑examination he said he thought that they left the exchange at about 1.00 pm.[219]

206 Mr Burnett testified that once they had finished their work at the exchange, they drove onto the Coomberdale West Road and then onto Coalara Road until they reached North West Road. They turned right onto North West Road and travelled to the front of the Cook farm, which was on the northern side of North West Road and east of the corner of Mungedar Road and North West Road, where they had further work to do.

207 Mr Burnett testified that he did not see any person or anything unusual when he drove down Coalara Road, onto North West Road and to the Cook farm.[220] He said that he would have stopped at the corner of Coalara Road before he turned into North West Road, and looked for traffic but he could not remember whether there was any traffic or not.

208 Mr Burnett said that when he arrived at the Cook farm gate, he could not see the system they had to work on. He drove east on North West Road for about 2 km to the location of another pit on the Richards farm. He did not see anyone on the side of the road. He did not recall seeing or passing any cars on the way to or from the Cook farm.[221]

209 Mr Burnett still could not see the equipment he needed so he drove back to the Yallalie exchange, via the same route, made a phone call and cancelled the job. Mr Burnett was at the exchange for about 20 minutes. Mr Smith did not go back to the exchange. Mr Smith went to the Cook farm to commence work which needed to be done inside a farm house. Mr Burnett did not see any person on the side of the road during the journey to or from the exchange.[222]

210 Mr Burnett then drove back to the Cook farm. When Mr Burnett got back, he decided that there was a part of the job that he could do to help out the next linesman who would work on the job. He drove back up North West Road about 2 km to the pit on the Richards farm. He then returned to the Cook farm no more than 35 ‑ 40 minutes later. He said that it was then close to 3.00 pm.[223] This time is confirmed by Constable Shane Wheeler who was at the farm between 2.50 pm and 3.00 pm and saw two Telstra vehicles.[224] Once he and Mr Smith finished at the Cook farm they drove back to Moora on North West Road. It would have been between 3.00 pm ‑ 3.30 pm and Mr Burnett did not see anyone on the road.

211 Mr Burnett said that in the media in the following days he heard a request for people who had been on North West Road on 29 July 1999 to come forward. Consequently he and Mr Smith had attended the Moora police station. He said that they told a detective there that they had been on the road. They were told to ring Crime Stoppers. Mr Smith then said to him 'Well, we've seen her, didn't we, Chisel?'[225] Mr Burnett said that was the first time he had heard Mr Smith mention seeing a girl and it took him by surprise. He said he was 'gobsmacked'.

212 Mr Smith and Mr Burnett were both apparently honest witnesses trying to do their best to recall what they had seen and done on and after 29 July 1999. However Mr Burnett's evidence was more credible than Mr Smith's evidence in that it was internally consistent and detailed. He also was much more familiar with the area through which he travelled on 29 July 1999.

213 It makes little sense for Ms Dodd to have been on North West Road at the intersection with Coalara Road at around 1.30 pm, looking as if she wanted a lift, when she would have had to pass the Seldom Seen farm to get to that spot. There was no way she could have walked to that intersection in the time between when she had been seen near to the location of the 961 marker and 1.30 pm. The intersection is 15 km from where Mr Stribley saw her. If she was walking, it would have taken Ms Dodd more than three hours to get to that location. There is no evidence that anyone gave Ms Dodd a lift to that point. In short, apart from Mr Smith's apparent honesty, there is nothing to support his evidence that he saw a young girl there. Given the lack of support for his evidence, it does not cause me to believe that Ms Dodd somehow made it to that point on North West Road.

214 Mr Bradley Davies said[226] that in 1999,[227] he was touring the north‑west of Western Australia in his green Datsun 120Y sedan. When he returned to Perth that year, he gave a lift to man called Jason. He could not recall the exact route he took but he thought that together they drove from the north along the inland road to and through Moora. An inference available is that the inland road was North West Road. He remembered seeing a very young looking girl on the left‑hand side of the road. He thought that she was wearing a white top. About an hour or so later, a white Toyota LandCruiser came 'flying up' behind him while he was travelling at 105 km per hour. It backed off for a bit and was being driven erratically. Then it accelerated and overtook him at speed. As it was passing, he saw the girl who he had seen hitchhiking and who believes to be Ms Dodd, looking out the window at him. The window was up and she had the palms of her hands pressed up against the glass. He did not see the driver. Mr Davies soon lost sight of the Toyota.

215 Unfortunately, Mr Davies could not be found in order for a witness summons to be served on him. Consequently, his witness statement was read into evidence by consent and I did not hear his explanation as to why his statement was not given until 2010.

216 It is notable that no other witness recalled seeing a speeding white LandCruiser. Also, there is a lack of specificity in Mr Davies' evidence about the date, time, location of his sightings and his description of the girl he said he saw. It does not make sense that he would have seen Ms Dodd on North West Road and then an hour or so later have seen the LandCruiser pass him, as it would have only take about 35 minutes to drive from Badgingarra to Moora along North West Road at 105 km per hour. I do not place any weight on Mr Davies' evidence.

Witnesses who claim not to have seen a girl on North West Road on 29 July 1999

217 Mr Streppel testified that he left his home on Dandaragan Road, 10 km west of Moora and approximately 48 km south east of Badgingarra on his road trail XD Yamaha 600 motorbike at approximately 11.30 am ‑ 11.45 am.[228] He rode towards Jurien Bay to meet Mr Moltoni and Mr Skipworth. He travelled on Dandaragan Road and then turned into North West Road and travelled west. He estimated his speed at about 100 km per hour.[229] He arrived at the Badgingarra Roadhouse around 12.20 pm and withdrew $100 at the roadhouse using an EFTPOS machine at 12.24 pm.[230] This means that he most likely left his home close to 11.50 am given that it takes 29 minutes to drive 48 km at 100 km per hour. At a very rough estimate he would have passed the location of the 961 marker on North West Road, which was about 38 km from his home, at 12.10 pm ‑ 12.15 pm.

218 Whilst travelling along North West Road, he did not see any person matching Ms Dodd's description. His failure to see Ms Dodd is more significant than that of other witnesses because as he was on a motorbike he was being particularly careful to keep a close eye out for animals and other items on the sides of the road which may come onto his path.[231]

219 Mr Timothy Peacock and his family lived on a farm at 624 Wathingarra Road, Badgingarra. Wathingarra Road runs north from North West Road 14.7 km east of the Badgingarra Roadhouse and 5.1 km east of the 961 marker.[232] It takes about 17 minutes to drive from Mr Peacock's farm to the Badgingarra Roadhouse driving at 90 km per hour.[233]

220 On 29 July 1999, Mr Peacock was in a rush to get various chores on the farm completed before he travelled to Perth for an appointment on the following day. At approximately 11.30 am Mr Peacock left his farm in a 1992 olive green Ford Maverick 4WD tray back ute, with an orange 400 litre tank on the tray, to travel into Badgingarra. Mr Peacock can only estimate the time he left the farm.[234] He described this and other times as being 'rubbery'.[235] It would have taken him five to 10 minutes to drive to the junction of Wathingarra Road and North West Road. He did not recall seeing any vehicles or people on North West Road in the 15 km from the junction into Badgingarra.[236]

221 Once in Badgingarra, Mr Peacock went to Rural Traders to purchase farm supplies. There he saw Mr Lyall Schwan, who ran the store. He spoke to Mr Schwan who he said was in a hurry to leave to get to Moora for a dental appointment. He said that he believed that Mr Schwan left the store just before him. He said that he stayed in the store for approximately 10 minutes.[237]

222 Mr Schwan's evidence about times appears to be more reliable than that of Mr Peacock, given that he had an appointment to attend at a particular time. Mr Schwan said that he recalled his staff member interrupting him to remind him that he had a dental appointment. She said to him, 'It's 20 past 12. You had better get going'.[238] Mr Schwan then left the store and drove to the Badgingarra general store. He picked up his wife's banking and asked her to ring the dentist to advise that he was running late. When he left, the clock in Mr Schwan's ute read 12.38 pm and Mr Schwan knew that it was eight minutes fast.[239] I find that Mr Peacock was at Rural Traders at about 12.20 pm and that he left around that time.

223 After leaving Rural Traders, Mr Peacock drove to the roadhouse and bought himself a can of Coke and a Chiko roll for lunch. He paid in cash. He was in a rush and did not see anyone he knew in the roadhouse. He then drove back to his farm along the same route. Again, he did not recall seeing any vehicles or people on North West Road.[240] He testified that he was back at the farm, at approximately 12.30 pm, where he saw and spoke to a Western Power representative,[241] who was clearly Mr David Martin, whose evidence I will refer to later in these reasons. However given my finding as to when Mr Peacock was at Rural Traders, he would not have been back at his farm until about 12.50 pm.

224 This is consistent with the record of purchases on the Badgingarra Roadhouse till roll, which shows purchases consistent with being those of Mr Peacock at 12.28 pm, 12.30 pm and 12.31 pm.[242]

225 The above findings mean that Mr Peacock would have been on North West Road in the area of the location of the 961 marker, about 12.40 pm on the way back to his farm.

226 It is more difficult for me to ascertain when Mr Peacock was in the area of the location of the 961 marker when he was driving into Badgingarra as his times do not add up. It seems he must have either left his home later than he thinks or spent longer in Rural Traders than he thinks or a combination of both. It is also entirely possible that as Mr Peacock was rushing and preoccupied with getting his chores done, he was not being observant as he drove into and out of Badgingarra.

227 The most I can conclude is that Mr Peacock's evidence is consistent with Ms Dodd not being on the side of North West Road anywhere between Badgingarra Roadhouse and Wathingarra Road when Mr Peacock drove into Badgingarra sometime between 11.30 am and 12.10 pm and at around 12.40 pm. His evidence does not cause me to doubt the findings I have made about Ms Dodd's movements.

228 Another person who travelled on North West Road but did not see Ms Dodd is Mrs Robyn Crouch. Later in my reasons I will describe her evidence relating to her seeing the accused. Her evidence relating to Ms Dodd is that on 29 July 1999, Mrs Crouch drove from her farm on Badgingarra Road to Moora along North West Road at about 9.30 am[243] and returned at about 11.45 am. She arrived home at about 12.30 pm. She travelled at about 110 km per hour on North West Road.[244] In respect of the return journey, she would have been at about the location of the 961 marker at around 12.10 pm ‑ 12.15 pm. She did not see Ms Dodd.[245] Mrs Crouch's evidence is consistent with Ms Dodd not being on North West Road, east of Badgingarra Road, at that time.

229 Mr Barrett, one of the Telstra employees who had been at the meeting in Moora on 29 July 1999, left Moora at about 10.50 am and drove along Dandaragan Road. He realised that he had left equipment back in Moora and so did a U‑turn and drove back into town.[246] On the way back he passed Mr Hale, another Telstra employee, who was in his ute, heading out of Moora. He estimates that he resumed driving out of Moora 'at around 11.30 am'.[247] This time is consistent with telephone call charge records which record that he concluded a telephone call at 11.29 am in Moora.[248]

230 Mr Barrett drove along Dandaragan Road and North West Road to Badgingarra and onto Jurien Bay. He arrived at Jurien Bay at about 12.45 pm.[249] This means that he was on North West Road between about 11.40 am ‑ 12.10 pm. Mr Barrett estimates that it only took him about 30 minutes to drive from Moora to the Brand Highway as he was in a hurry to get to Jurien Bay for a prearranged meeting. He would have had to have travelled the 58 km trip at 116 km per hour, including driving out of Moora and into Badgingarra, to do the trip in 30 minutes. This means he would have been driving very quickly and well in excess of the speed limit. Mr Barrett said that he 'definitely' did not see any person on North West Road and did not recall seeing any vehicles on North West Road.[250]

231 The State's case is that Mr Barrett left Moora after the accused and this sequence explains why he did not see Ms Dodd on the side of the road around the area of the location of the 961 marker. Furthermore, it is the State's case that the Telstra vehicle which Mr Stribley saw after he saw the farm ute on North West Road, was Mr Barrett's vehicle.

232 Mr Stribley's evidence was that the van he saw was like a transit van. He referred to a Ford Transit van, Econovan, Mitsubishi Express, HiAce van or HiLux, as being examples of brand names for such vans. He said that it had roof racking and PVC piping on the roof rack in which to put cables and the like. He said that it had signage on it and he thought to himself, 'Well, it's a Telstra van. I wonder if that's me mate'. However he did not see who was driving the van.[251] He saw the van east of Muthawandery Road and five ‑ 10 minutes after he had seen the older style dirty white farm ute.[252]

233 Mr Barrett said that he was driving a Nissan Patrol wagon with Telstra markings on its bonnet and sides.[253] Ms Stribley's description of the Telstra vehicle which he saw as a van does not match the wagon driven by Mr Barrett. On the other hand, Mr Stribley's addition of it possibly being a HiLux means that it could have been a Nissan Patrol wagon.

234 It is 120 km from Moora to Jurien Bay. Mr Barrett said that he left the depot in Moora at the end of Roberts Street at around 11.30 am. He is not definite about that time. It is not clear which end of Roberts Street Mr Barrett was referring too. But in either case, this would add a couple of minutes onto the journey before Mr Barrett drove out of Moora along Dandaragan Road. He arrived in Jurien Bay at about 12.45 pm. When Mr Barrett arrived in Jurien Bay he met his friend and went to the toilet. He then looked at his watch and it was 1.00 pm.[254]

235 In order to reach Jurien Bay in an hour and 15 minutes, Mr Barrett would have travelled the whole distance at 96 km per hour. This is reasonable given the posted speed limits.

236 In accordance with the findings which I make later in these reasons about the accused's movements, Mr Barrett and the accused may have left Moora around the same time, Mr Barrett may have left before the accused or he may have left after the accused.

237 If Mr Barrett had left the depot in Moora even five minutes after the accused drove out of Moora along Dandaragan Street, it does not seem that he would have gained sufficient distance on the accused's vehicle by the location of the 961 marker. The accused would have been able to stop, pick up Ms Dodd and drive on without either Ms Dodd or the accused being seen by Mr Barrett. This would explain why Mr Barrett did not see Ms Dodd and it is consistent with Mr Stribley's evidence that he saw a ute and then a Telstra vehicle driving west on North West Road, after he saw Ms Dodd. This timing and sequence of events seems to be very reasonable and possible.

238 If Mr Barrett had left Moora just a few minutes after the accused it seems that he would have gained sufficient time on Mr McConnell's ute to reach and overtake it before the area of the of the location of the 961 marker. Mr Barrett's statement made on 12 August 1999 says that he may have passed some cars but he cannot be sure.[255] Consequently, this appears to be a less likely scenario but still possible.

239 If Mr Barrett left Moora before the accused, the accused is unlikely to have gained time on Mr Barrett. If Mr Barrett left Moora before the accused or overtook Mr McConnell's ute, Mr Barrett would have past the area of the location of the 961 marker before the accused reached that area. If that was the timing and sequence of events, it raises the issue of whether Ms Dodd was still on North West Road when Mr Barrett and the accused drove past the area of the location of the 961 marker. It would be possible that Mr Barrett did not see Ms Dodd because she was not on the road. It would also be possible that she was on the road but he did not see her due to his preoccupation with getting to Jurien Bay. Also, North West Road in that area is undulating.[256] Depending on where on the road Ms Dodd was there may not have been a lot of time for Mr Barrett to see her.

240 In July 1999, Mr Clark Skinner[257] was an Elders representative and stock agent, who lived in Moora. On Thursday, 29 July 1999, he left the Moora office at about 8.45 am. He drove from Moora to various farms in the Badgingarra district. His last stops before lunch were on Dewar Road, which is north of North West Road.[258]

241 Mr Skinner then decided to get some lunch from the Badgingarra Roadhouse. He drove down Dewar Road, Watheroo Road and Winjardie Road and he then turned right onto North West Road and drove to the roadhouse. He says that he probably saw some cars along the way but he cannot remember them. He did not see any people on that trip either. He says that he got to the roadhouse, pretty close to 12.00 pm.[259] Although Mr Skinner was on North West Road when Ms Dodd may also have been on the road, she would have been east of Winjardie Road and so Mr Skinner would not have seen her.

242 Mr Skinner said he would have purchased something like a pie and chips for lunch.[260] There is a transaction at 11.50 am on the Badgingarra Roadhouse till roll which is consistent with such a purchase but given that Mr Skinner is not definite about what he purchased it is not possible to find that that is the record his transaction. He left the roadhouse at about 12.20 pm. He drove along North West Road and turned left onto Coalara Road. He is definite that on that trip he did not see any people and he cannot remember if he saw any other cars. He went to a farm on Coalara Road for about 20 ‑ 30 minutes. He then drove back to Moora along Coalara Road, North West Road and Dandaragan Road. He arrived back at his office at about 2.00 pm.[261]

243 Mr Lyall Schwan was the proprietor of Rural Traders. On Thursday, 29 July 1999, Mr Schwan opened his store at around 8.00 am. He recalled speaking to Mr Piper, who came into the store to chat. Around midday, a customer called Bob Englekey came into the shop and Mr Schwan served him. He recalled his staff member interrupting him to remind him that he had a dental appointment in Moora. She said to him, 'It's 20 past 12. You had better get going'.

244 Mr Schwan then drove his ute to the Badgingarra general store, where his wife worked. He picked up her banking and asked her to ring the dentist to let them know he was running late. The clock in Mr Schwan's ute read 12.38 pm and Mr Schwan knew that it was eight minutes fast. He turned right into North West Road and drove towards Moora.

245 Mr Schwan recalled seeing some other vehicles heading back towards Badgingarra, and he overtook at least one vehicle, but he could not remember what type of vehicles they were. He arrived in Moora at the dental clinic at 1.00 pm. He did not see any person on the side of the road on his way to Moora. Thus, Mr Schwan was on North West Road between 12.30 pm ‑ 1.00 pm but did not see Ms Dodd.

246 Mr Schwan was at the dentist's surgery for about 20 minutes. He then went to the bank and conducted some other business in Moora. After doing that he dropped his ute off for a service and picked up a courtesy vehicle. He drove this vehicle back to Badgingarra, travelling along North West Road. He left Moora at around 2.30 pm or 3.00 pm and arrived back in Badgingarra around 3.30 pm. He did not see Ms Dodd on the road.

247 In July 1999, Mr Martin lived in Moora and worked as a Western Power linesman out of the Moora Depot.[262] His nickname was Podgy Martin.[263] Mr Martin left the Moora Western power depot around 9.00 am in a white Nissan single‑cab utility with dropdown aluminium sides on the tray. It had two extendable wood ladders on ladder racks at the rear of the cab and a large aluminium toolbox in the tray, a drum of wire, a red and white generator and another steel box with helmets and drills in it. He did various jobs before driving, via the Brand Highway, to the Badgingarra Roadhouse.[264] Mr Martin estimated that he got to the roadhouse between 11.15 am and 11.30 am and left it between 12.15 pm and 12.20 pm.[265]

248 Mr Martin said that he bought two chicken wings and a can of Diet Coke.[266] There is no transaction between 10.30 am and 12.15 pm on the Badgingarra Roadhouse till roll which clearly reflects this purchase. Mr Martin parked the ute near the public phone box outside the roadhouse, facing towards Moora and sat in it whilst he read the paper and ate his lunch. He said that he was there for a 'good hour'. Whilst he was there he saw Mr Streppel ride into the station on his motorcycle.

249 Mr Streppel said that he arrived at the Badgingarra Roadhouse around 12.20 pm and that he spoke to Mr Martin before he went into the roadhouse to withdraw $100 at the roadhouse using an EFTPOS machine at 12.24 pm.[267] This evidence tends to prove that Mr Martin arrived at the roadhouse closer to 11.30 am than 11.15 am and that he did not leave it until after 12.20 pm.

250 When he left the roadhouse, Mr Martin turned right onto North West Road, heading towards Moora. He could not remember seeing other vehicles or anyone walking on North West Road.[268] He turned left into Wathingarra Road, which is a gravel road. It is 18.5 km from Badgingarra Roadhouse to Wathingarra Road, which is about 4 km east of the 961 marker. He went to the Peacock's farm off Wathingarra Road and read two meters. He thought that he got to the farm about 12.40 pm, but he could not be sure of the time.

251 It would have taken 10 minutes to get to the Wathingarra Road turnoff from the roadhouse if Mr Martin's vehicle travelled at 110 km per hour for the whole distance. The other evidence which helps to identify the time Mr Martin was on North West Road relates to Mr Peacock, whose farm Mr Martin visited on Wathingarra Road. Mr Peacock said that after arriving home himself from a trip to Badgingarra, he went to get some sheep in to show to a stock agent later in the afternoon and in that process he saw and spoke to the Western power representative, who was clearly Mr Martin.[269] I have found that Mr Peacock arrived home close to 12.50 pm. Consequently, Mr Martin probably arrived at the Peacock farm a bit later than he estimated.

252 After leaving the Peacock farm, Mr Martin dropped in to see his friend, Keith Hammond, at the Seldom Seen farm. Mr Martin estimated that he arrived at about 1.00 pm.[270] He drove around the sheds near to the house to see if Mr Hammond's vehicle was there. He did not get out of his car at all and did not see anyone at the farm. Mr Martin then drove back onto North West Road, going east. He then turned right onto Dandaragan Road to continue his work. He did not see Ms Dodd on his travels that day.[271]

253 The upshot of his evidence is that Mr Martin was on North West Road between the Badgingarra Roadhouse and Wathingarra Road for about 10 minutes between 12.25 pm ‑ 12.45 pm but he did not see Ms Dodd. He would also have been on North West Road, other than the time it took him to drive around Seldom Seen farmhouses, between about 12.50 pm ‑ 1.00 pm. Again, he did not see Ms Dodd. Finally, he would have been on North West Road for about 20 minutes between Seldom Seen farm and Dandaragan Road between 1.05 pm ‑ 1.30 pm and did not see Ms Dodd.

254 Ms Lorna Andrijich is deceased but in July 1999 she worked at the Badgingarra Tavern. On 29 July 1999 at about midday, she left the tavern to drive in a gold coloured 1988 VL Holden Commodore sedan to Moora to do the banking for the tavern. She drove north on Meagher Drive and turned right onto North West Road. She could remember a number of cars passing her going towards Badgingarra but she could not say what they were.[272]

255 At about 12.20 pm or 12.30 pm, Ms Andrijich[273] stopped at Seldom Seen farm. Every Thursday, the tavern worker who drove into Moora to do the banking stopped at the farm to deliver a carton of beer, a pouch of tobacco and cigarette papers to Mr Mulroy's house on the farm. Mr Mulroy was Keith Hammond's former father‑in‑law and he lived in a separate house on the farm.[274] Ms Andrijich drove into Seldom Seen and parked the car on the north side of Mr Mulroy's house. She walked onto the back verandah of Mr Mulroy's house. She put the carton of beer in a fridge on the back verandah. She opened the back door and put the tobacco and papers on the table, which was just inside the door. She could not remember anyone being home.[275] Mr Mulroy normally worked away from home. Ms Andrijich picked up Mr Mulroy's 'footy tips' which were on the table. She walked out of the house and got in the car. She did a U‑turn and headed back out of the farm the way she drove in. Ms Andrijich turned right and headed east on North West Road towards Moora. When she was on the farm, she could not remember seeing anyone else or any vehicles there.[276] She would have only been at the farm for all of five to 10 minutes.

256 Ms Andrijich estimated that she arrived at Moora just before 1.00 pm. Nearly one hour is a very generous time allowance to drive between Badgingarra and Moora, even allowing for a 10 minute stop at the Seldom Seen farm. Travelling at 100 km per hour, the trip, without a stop, can be done in about 35 minutes.[277] If Ms Andrijich had left Badgingarra at midday, and travelled at an average speed of 100 km per hour, she would have reached the 961 marker at about 12.09 pm and at the Seldom Seen farm by 12.15 pm. As she said that she only spent five to 10 minutes at the farm, she would have been in Moora by 12.45 pm. These arrival times are earlier than she estimated. On the other hand, calculating back from her estimated arrival in Moora at just before 1.00 pm, she would have passed the 961 marker at about 12.20 pm ‑ 12.25 pm and left the Seldom Seen farm by 12.40 pm to travel to Moora if she was driving at an average speed of 100 km per hour and she arrived in Moora by 1.00 pm.

257 Ms Andrijich's estimated arrival time in Moora seems to me to be more accurate than other time estimates she gives because she had the Bankwest receipt time stamped at 1.31 pm to use to estimate her time of arrival. I am inclined to the view that Ms Andrijich left Badgingarra at closer to 12.10 pm than midday. This means that Ms Andrijich would have been driving along North West Road west of the Seldom Seen farm around 12.10 pm ‑ 12.30 pm and then east of the Seldom Seen farm between 12.40 pm and 1.00 pm. She did not see Ms Dodd on the road.

258 In Moora, Ms Andrijich may have gone to the newsagent to purchase lotto and instant lottery tickets. She went to the Challenge Bank first and paid money off a credit card. She then went to Bankwest, which is across Dandaragan Road. The Bankwest receipt shows that she was there at 1.31 pm.[278] She also went to the Commonwealth Bank. She went from there to the newsagent. She then drove to McIntosh's machinery store and made some purchases before driving to DJs Butcher shop, next to what was then Supa Valu supermarket (Supa Valu). Ms Andrijich probably went into Supa Valu after that and paid cash for a few small items. After going to Supa Valu, she drove back to the Badgingarra Tavern, again along North West Road. She recalled seeing cars on the road but could not recall what they were. At no time did she see a person on the road.[279]

259 Mrs Melinda Borwick[280] lived with her husband and four children at a farm on the Cervantes Road, about 16 km from the Cervantes town site. On Thursday, 29 July 1999, Mrs Borwick drove her children into Moora to see the doctor. She arrived in Moora at about 10.15 am and the trip had taken about one hour. On the way to Moora, she did not drive along North West Road and did not see anything of note.[281]

260 Mrs Borwick left Moora at about 12.25 pm and this time she drove via Dandaragan Road and North West Road. She estimates that to get from one end of North West Road to the other would have taken her about 40 minutes. During the entire trip from Moora back to Cervantes, she did not see Ms Dodd or see any person hitchhiking on any road.[282] She recalls only passing one car during the entire return trip. She believes that she passed the car as it indicated to turn left into Wathingarra Road. The car was a white LandCruiser or Nissan ute, a single cab, empty tray‑back with a roo bar. It appeared to be a farmer's ute and was clean. It was about a 1993 model, with a male occupant driver.[283] Thus, she did not pass the ute driven by the accused.

261 On 29 July 1999 at about 1.15 pm Mr Peter Boucher, Mr Smiler[284] and a shearer called Tim[285] left Badgingarra Research Station in Winjardie Road, where they all lived, in Mr Smiler's 1969 Fairlane. Mr Boucher said that they first drove to Badgingarra where Mr Smiler bought some shearing equipment. However he is wrong about that as the Rural Traders' records show that Mr Smiler bought the equipment on 30 July 1999.[286] They then drove to Moora along North West Road. Mr Boucher said that he did not notice anyone walking along the road or hitchhiking. If there was, he said that he would have noticed. They arrived at the doctor's surgery in Moora at approximately 1.50 pm.[287] Mr Smiler and Mr Boucher went into the surgery and Tim stayed in the car. Thus, they would have driven along North West Road from Winjardie Road to Moora well after 1.00 pm. Mr Smiler had the incorrect day for his appointment, so they left the doctor's surgery. Mr Boucher and Tim went to different banks. After that they went and picked up some stores from Melrose supermarket.[288] This is consistent with Mr Westbrook's evidence that he saw Mr Smiler in Moora between 2.30 pm ‑ 3.15 pm. They then visited another shearer in Moora. They drove back to the research station at about 5.30 pm. On the way back to the quarters, Mr Boucher did not see anyone walking along the road.[289]

262 In 1999 Mr David Westbrook,[290] his wife, Mrs Sue Westbrook,[291] and their teenage daughter lived on Brand Highway, 16 ‑ 17 km north of Badgingarra. At about 1.20 pm ‑ 1.30 pm on 29 July 1999, Mr and Mrs Westbrook left their home to drive to Moora to attend a doctor's appointment. They were driving a blue Nissan Pulsar sedan.[292]

263 It took Mr and Mrs Westbrook about 10 minutes to drive to Badgingarra where Mrs Westbrook got out of the car and collected their mail from the general store. They then drove to Moora via North West Road and Dandaragan Road. They would have been on North West Road after 1.30 pm. On the way they did not see Ms Dodd or the accused.[293]

264 They refuelled their car at 2.28 pm,[294] and then went to the post office and to the doctor's appointment, which was scheduled for 3.15 pm. Whilst in Moora, Mr and Mrs Westbrook saw Mr Smiler. After seeing the doctor they went to the chemist and then drove home via the same roads.

265 Mr Peter Russell lived in Moora and worked at a Moora bank branch. He left Moora at about 1.15 pm on 29 July 1999 to drive to Green Head via Dandaragan Road and North West Road in a green Mitsubishi Magna sedan. Mr Russell did not see Ms Dodd on the Road. At Badgingarra, he stopped at the roadhouse and bought a Masters iced coffee and some chicken wingdings which cost about $3.80. There are no transactions on the Badgingarra Roadhouse till roll which exactly match this sale between 1.50 pm ‑ 2.10 pm. However there are two transactions shortly after 2.00 pm which could be this sale, if the incorrect item codes were rung up. He drove the return trip at about 4.00 pm that afternoon and did not see Ms Dodd on that occasion either.[295]

266 Keith Hammond and Mr Mulroy were absent from Seldom Seen farm all day on 29 July 1999.[296] When they returned home in the afternoon, Ms Dodd was not there, and she did not arrive any time after that.

267 In 1999 Mr Jamie Smith was a friend of Bradley Hammond.[297] He must have also been friendly with the accused as he used to go into the Australia Post shop in Moora with him.[298]

268 Mr Smith had lived on Seldom Seen farm on and off for one to two years over a period which included his 17th birthday which was on 1 October 1998. He was friends with Bradley Hammond and knew members of his family, including Keith Hammond. Whilst he was staying at the farm, Ms Dodd came to visit on a couple of occasions with Kristal Hammond and Ms Dodd's sister. On his 17th birthday he had drinks at the Badgingarra Tavern with a small group of friends. Ms Dodd was present.[299] Mr Smith said that although he regarded Ms Dodd as a friend, he would not have invited her to Badgingarra especially for that occasion. Consequently, she must have been staying at the farm at the beginning of October 1998.[300]

269 Mr Smith was an unimpressive witness. He claimed to have no recollection of what he was doing on 29 July 1999, despite being spoken to by the police a few days later about that topic and reading his statement in preparation for court.[301] Mr Smith did not give evidence that he had an alibi for the time Ms Dodd went missing. He claimed to not have seen Ms Dodd around the time she went missing and to have no involvement in her disappearance.[302] It was not suggested to him that he was lying in that regard.

270 Mr Smith may have had an opportunity to offend against Ms Dodd on 29 July 1999. He knew her as a friend and there is no evidence before me that he did not have the opportunity to encounter her. The accused told the police that he saw Mr Smith at the post office on 29 July 1999.[303] This is as far as I can go. To make any further findings in respect to Mr Smith would be to speculate about matters which are not in evidence.

271 Mr Wayne Molloy drove along the Brand highway from a mine site in Cataby to Geraldton on the morning of 29 July 1999. He pulled off to the side of the road near the Hill River bridge on Brand Highway. The Hill River bridge is approximately 6 km north of Badgingarra.[304] As Mr Molloy sat in his car he heard what he believes was a girl scream briefly in the bush to the north west of where his car was stopped.[305] He heard a dog barking in the distance on the eastern side of the road. He did not see any car in the area.[306] Subsequent searches of that location failed to locate any trace of Ms Dodd.[307]

272 It was sometime around 11.00 am that Mr Molloy left the mine site.[308] He is not sure whether he returned to his accommodation at Cataby before he commenced his journey or whether he drove directly from the mine to Geraldton. His car did not travel very fast as it was prone to overheating at speed.[309] He would have arrived at the Hill River bridge sometime after 11.30 am.

273 Mr Molloy's evidence, either considered alone or in conjunction with all other evidence, does not affect the conclusions which I have come to about Ms Dodd's movements on 29 July 1999. All he heard was a scream from a distance. He could be mistaken about the direction from which the voice came or about the gender of the speaker. There were no related vehicles or people in the area. The police searched the area but did not find any trace of Ms Dodd or of a disturbance. I do not accept that Mr Molloy's evidence, however honestly given, is evidence which proves that Ms Dodd was in that area at that time.

Alleged sightings of Ms Dodd at places other than North West Road

274 At about 4.35 pm on 29 July 1999 Mr Larry Puls left his home in Mt Helena to drive to Kalamunda.[310] From Sawyers Valley Road he turned right onto Great Eastern Highway and drove towards Perth in a westerly direction.[311] About seven minutes after he left home, Mr Puls saw a young girl with her arm extended as if she was hitchhiking. She was on the opposite, or northern, side of Great Eastern Highway, near Railway Road, Mundaring. She was hitchhiking in an easterly direction. He did not see anyone else in the area.[312]

275 Mr Puls saw the girl from about 40 m away, across three lanes of traffic and the median strip. He was travelling at 80 km an hour and he did not slow down or stop to observe the girl. Although he only saw her for a short time, he was able to observe her as his car approached her position.[313]

276 Mr Puls described the girl as being 5' tall, pale skinned and skinny in build. She looked 15 ‑ 16 years of age. She had long, tidy, straight, brown hair, without a fringe. Her hair draped on either side of her shoulders. The girl was wearing pants of some sort and she had a long sleeved, dark top on. She did not have on a hat or sunglasses. To her left‑hand side, about 15 feet away, there seemed to be a bag, like a backpack, lying on the ground. It was around about 700 mm by 300 mm. It had dark coloured straps on it.[314]

277 In the following days, Mr Puls saw a photo of Ms Dodd in The West Australian. The photograph looked like the girl that he had seen. It prompted him to call Crime Stoppers.[315]

278 Mr Puls, like all the witnesses who allegedly saw a girl who they thought was Ms Dodd after midday on 29 July and away from North West Road, appeared to be an honest witness. However there are some characteristics of his sighting which make it improbable that the girl he saw was Ms Dodd. First, it makes no sense for Ms Dodd to have made her way to that point on the Great Eastern Highway and then for her to be hitching a lift in an easterly direction. It was nowhere near her intended destination, and was in the wrong direction for her to be heading back to her family or to Ms Frederickson. There is no evidence that she had expressed an interest in travelling by herself in the area. Secondly, according to Mr Puls the girl was standing in an obvious position on a busy road and yet no other witness claims to have seen Ms Dodd in the same position, to have taken her to that position or taken her away from there. I conclude that Mr Puls probably saw a girl hitchhiking but it was not Ms Dodd.

279 In July 1999 Mr Sean Troy was employed as a driver for a tour company. Early on Monday, 2 August 1999, he picked up tourists in Perth who were on the Pinnacles tour to Cervantes.[316] He was also accompanied by his nephew, Mr Jason Rogers.[317] Mr Troy then commenced driving to Cervantes along Brand Highway. He stopped at the Cataby roadhouse, where he and his passengers alighted. Cataby is about a 30 minute drive south of Badgingarra. Mr Troy went into the roadhouse and purchased some food. There were at least three other tour vehicles and passengers at the roadhouse. Most of the tourists were overseas tourists.[318]

280 In his evidence, Mr Rogers says he went to one of two public phone boxes outside the roadhouse to make a telephone call.[319] He thought that it was about 10.00 am but he was not sure.[320] Mr Rogers chose the phone box on the right because there was someone else in the left‑hand box. That person was female with dark hair, probably around shoulder length, maybe a bit longer. She had a dark bag at her feet with 'Equip' written on it. He could not describe her further and he did not see her face.[321]

281 Mr Troy left the roadhouse and walked towards his bus. He saw Mr Rogers in one of two phone boxes, making a call.[322] In the other phone box was a female person making a phone call.[323] Mr Troy said that he was about 10 m to 15 m from her. He described her as about 150 cm ‑ 160 cm tall and of slight build. Her hair was black or dark brown and was behind her left ear. He thought that it was tapered to her shoulder, to the middle of her back. She was wearing blue or dark pants but he did not remember their type. She was wearing a dark top and had a jacket over her left arm. He did not remember whether the top was long or short sleeved. Her jacket was not a white or light colour, but not as dark as her top. He did not remember what type or colour shoes she was wearing or even if she was wearing shoes. He recalled that she was wearing a watch, with a round face and slim band, on her left wrist. He recalled seeing that as it was on the wrist of the hand with which she was holding the phone. At her feet was a light to dark brown bag. It looked like a backpack with a flap at the top that had a zip or drawstring. Written on the flap or just below was the word 'equip'. It was written in lower-case print, in light colour. It was written in the middle of a dark oval shape.[324]

282 As Mr Troy walked towards the girl, she looked around and glanced at the front doors of the roadhouse. She then looked back. Mr Troy and Mr Rogers did not notice anyone else who seemed to be accompanying the girl. Mr Rogers left the phone box and Mr Troy rounded up his passengers. Mr Troy then drove away. According to his watch, he left Cataby at 10.43 am.[325]

283 On Thursday 5 August 1999 Mr Troy saw a picture of Ms Dodd. He thought that the girl he had seen in the phone box at Cataby was the same girl as depicted in the picture of Ms Dodd.[326]

284 The police obtained the phone call records for the two phone boxes at the Cataby roadhouse for Monday 2 August 1999.[327] These records are the successful call records. That is, they do not show any attempted, but unsuccessful, calls. I infer that because there is a duration of each call, which is recorded in minutes and seconds, and a charge in cents next to each call. I do not believe that information would exist unless the call was successful.

285 The records show that Mr Rogers made his phone call at 10.36 am and that it lasted for two minutes and 33 seconds.[328] There was a successful call made from the other phone box at 10.25 am and it lasted for three minutes and 33 seconds. That call was made to a Perth number which was recorded in the Perth White Pages telephone directory as being the number for G L Prince of 24 Johnston Street, Peppermint Grove. Ms G L Prince died on 12 August 2008 at 100 years of age. In 1999 Ms Prince had given two names to the police, neither of which were Ms Dodd's name.[329] There is no evidence that Ms Dodd knew Ms Prince or anyone associated with her. In any event, the call at 10.25 am would seem to be too early to have been the call witnessed by Mr Troy. The next successful call from that phone box was made at 11.43 am, which was too late to be the call witnessed by Mr Troy.

286 There is no other evidence that Ms Dodd was in the area of the Cataby roadhouse on 2 August 1999 despite there being a lot of people who could have seen her there and there having been recent publicity that she was missing. The publicity included a description of her, her clothing and her Equip branded bag. There was no reason for her to be in the Cataby area and for her not to contact her family or Ms Frederickson.

287 I conclude that the evidence of Mr Troy and Mr Rogers establishes that there was a girl who was in a phone box at the Cataby Roadhouse at about 10.35 am on Monday 2 August 1999, who bore some resemblance to Ms Dodd. It does not satisfy me that the girl was or could have been Ms Dodd.

288 Mr David Castanheira and Ms Nicola McNamara believe that they saw Ms Dodd or someone who looked very much like her at Hungry Jack's restaurant in Armadale on 3 August 1999.[330] Mr Castanheira was the manager of the restaurant and Ms McNamara was a junior staff member.[331] At about 6.00 pm Ms McNamara was in the kitchen area of the restaurant and she saw a girl at the service counter who she believed looked similar to a photo of Ms Dodd she had seen in the newspaper.[332] The girl appeared to be ordering food.[333] She looked again at the photo of Ms Dodd's head in the newspaper and confirmed her suspicion. She then showed Mr Castanheira the photo and told him that the girl looked familiar.[334] She asked him whether he thought that she looked like the girl in the photo. Together, they stood in the kitchen area of the restaurant and looked out at the girl, who was standing about 5 m away behind the counter in the public area of the restaurant.[335] The girl collected her food and left the restaurant. Neither Mr Castanheira nor Ms McNamara spoke to her.[336]

289 Ms McNamara described the girl as white with brown hair which was passed her shoulders.[337] At the time she gave evidence she could not recall what the girl was wearing, her age or anything else about her. She agreed that there were a lot of teenage girls who frequented the restaurant.[338]

290 Mr Castanheira gave evidence that the girl he saw was the girl in the photo in the newspaper. He said he was 100% sure that it was Ms Dodd.[339] He described her as quite thin with white skin, and dark brown or black, shoulder length hair. He said that she was wearing the blue jumper which was the same jumper that was in the photo in the newspaper.[340] She was waiting for her food and did not seem under pressure. Mr Castanheira contacted the police.[341]

291 By 3 August 1999 a small photo of Ms Dodd's head and shoulders had been published in the West Australian newspaper on two consecutive days.[342] The accompanying stories described her disappearance and her physical appearance. It seems highly unlikely to me that only two people in the Hungry Jack's restaurant would have recognised Ms Dodd if indeed the girl in the restaurant was Ms Dodd.

292 It is also highly unlikely that Ms Dodd would have been in Armadale at all on 3 August 1999. It was not an area near to her family, Ms Frederickson or her intended destination. There is no evidence that Ms Dodd had any interest in travelling by herself in that area. I am of the opinion that it is so unlikely that Ms Dodd would have deliberately disappeared and cut off all contact with her family and friends, that it can be excluded as a reasonable possibility. I conclude that it is likely that Mr Castanheira and Ms McNamara saw a different, but physically similar looking girl to Ms Dodd.

Searches for evidence of Ms Dodd's post 29 July 1999 conduct

293 Detective Senior Constable Chapman conducted enquiries in 2017[343] to ascertain whether there were any records of Ms Dodd leaving the country, accessing social security benefits, paying tax or operating bank accounts since 29 July 1999.[344]

294 According to Centrelink's electronic records, Hayley Marie Stephenson, date of birth 30 November 1981, has not received payments since July 1999.[345] According to the Medicare and/or Pharmaceutical Benefits Scheme database, Hayley M Stephenson, date of birth 30 November 1981, did not make a Medicare claim or receive pharmaceutical items between 29 July 1999 and 27 January 2017.[346] The Australian Taxation Office records disclose that Ms Dodd lodged returns in 1998 and 1999 but has not lodged a return since.[347] The Australian Passport Office's electronic database has no record of a passport being issued to Ms Dodd.[348]

295 It is the responsibility of the Australian Border Force (ABF) to maintain records of movements across Australia's international borders. ABF's records only show Ms Dodd's arrival into Australia on 27 October 1990 from the United Kingdom and it has no record of any subsequent movement.[349]

296 It is by no means conclusive as such records are destroyed after seven years, but the National Tenancy Database does not hold any rental history information for Hayley Marie Stephenson, date of birth 30 November 1981.[350]

297 Not all banks were requested to supply information about Ms Dodd.[351] Those that were asked are the Bank of Queensland,[352] Police & Nurses Bank, Westpac,[353] St George,[354] National Australia Bank,[355] Commonwealth Bank of Australia,[356] Citibank,[357] the National Australia Bank, the ANZ Bank[358] and Bankwest.[359] There were no such records.

298 If Ms Dodd had voluntarily left Ms Frederickson and stayed out of contact with her family in order to start a new life, I would have expected there to have been some record of her existence in one or more of the above organisations. The fact that there is no such record is powerful evidence that she met her death on or about 29 July 1999.

299 On 31 July and 1 August 1999 the police conducted a search of the verge and roadway of North West Road from the intersection of Badgingarra and North West Road down to the Seldom Seen farm.[360] On 31 July 1999, eight SES volunteers and police officers and a couple of search dogs attended that location. The search was reconvened the following morning with 40 SES officers. They searched between the fence lines on either side of North West Road. Nothing of relevance to Ms Dodd's disappearance was located.[361]

300 On 3 August 1999 the police searched the Badgingarra tip area. Between 3 and 5 August 1999 the police also conducted an aerial search and a motorbike search. The motorbike search was conducted by four officers on motorbikes.[362] The task allotted to those officers was to ride the boundaries of any roads, any firebreaks, any dams, bushy areas, sheds, outbuildings, or similar for anything that may assist the police to locate Ms Dodd. The properties adjoining North West Road between the intersection with Winjardie Road and Coalara Road, including the accused's home and the Seldom Seen farm were within the search parameters.[363]

301 The aerial search was conducted by a fixed-wing air aeroplane utilising FLIR, which I was told is a device that will show heat sources. However I have not received any evidence from an expert about FLIR, its capabilities or limitations.[364]

302 The search of the Badgingarra tip was a foot search using SES personnel. No heavy machinery was used to conduct that search.[365]

303 On 7 August 1999 the Telstra pits along North West Road were searched but nothing was found.[366] On 11 August 1999 the Seldom Seen farm was searched by police officers with the permission of Keith Hammond. Nothing was found that was connected to Ms Dodd.[367]

304 On 17 August 1999 a firearm search was conducted on the accused's home. Nothing relating to Ms Dodd was found in the search.[368]

305 On 28 August 1999 a very small area 3 km north of the Marchagee Track and 13.4 km west of Wilcox Road, which is over 80 km north of North West Road, was searched because an abandoned Datsun ute was located off a bush track. A number of its tyres were flat and it was not registered. The owner of the vehicle was located and it was ascertained that the ute was used by a flower picker. He left the ute in that location when he did not need it. The ute was towed back to Moora and forensically examined. The police enquiries did not reveal that the vehicle was related to Ms Dodd.[369] The police also searched 50 m either side of the track for 1 km but did not locate anything of interest.[370]

306 The police air wing conducted a further search on 30 August 1999 which included the Watheroo National Park. They flew over the area bounded by the Brand Highway in the west, Wilmott Road in the north, Midlands Road in the east and North West Road in the south. FLIR was apparently not used as the police do not have FLIR footage for that particular search. Nothing of interest to Operation Bluegum was seen.[371]

307 On 4 September 1999 police and SES personnel searched the corner of North West Road and Mungedar Road. They searched between fence lines on either side of Mungedar Road and parts of the Cook farm, including an area on the property used for rubbish disposal. On a later date the police went back and, with appropriate protection, searched that rubbish tip.[372]

308 On 4 September 1999 the police also searched an area around the intersection of Wathingarra Road and North West Road. They also searched another area near Goonderdoo Road and Dinner Hill Road because there were a couple of vacant buildings.[373]

309 On 6 September 1999 the remainder of the roadway on Wathingarra Road, from fence line to fence line was searched. Nothing of interest was located.[374]

310 On 13 August 2000 a search was conducted on the western side of Hill River Bridge. The police, accompanied by SES personnel, searched either side of the bridge and the river bed on the western side of the Brand Highway. That search was initiated as a result of information provided by Mr Molloy.[375] The search area measured approximately 500 m by 200 m. Not items related to Ms Dodd were recovered.[376]

311 At the end of November 2013, whilst the accused was in prison, the police searched his last known place of residence in Queensland. They relied on information supplied by an occupant of the property that the accused's property was stored in an outbuilding. A search of the outbuilding did not reveal any evidence linking the accused with the disappearance of Ms Dodd.[377]

312 From the end of November through to 24 December 2013 the police conducted a very thorough search and excavation of the accused's home. It included searches of septic tanks, the excavation of various parts of the property and removal of some walls and floors of the house. No items connected to the disappearance of Ms Dodd were found.[378] Some items were sent to PathWest for blood and DNA analysis. None of the results connected Ms Dodd to the premises.[379]

313 Between 27 December 2013 and 30 December 2013 the police and SES personnel conducted three days of searches at the back of the accused's home and Winjardie Creek. Nothing was found which was connected to Ms Dodd.[380]

314 On 16 January 2014 the police searched an area close to the accused's home but did not find anything of interest.[381]

315 In early 2014 the police seized the remains of the accused's Moto Guzzi motorcycle which he had stored on another person's property.[382] All of the areas which may have been touched by someone were swabbed. When analysed, no DNA was detected on the vast majority of the swabs. Low levels of DNA which were not suitable for further testing were detected on the left indicator. A stain on the foam edge on the underside of the seat was positive for the presumptive chemical test for blood. However confirmatory testing was negative. Low levels of DNA were detected on that area but it was not suitable for further analysis.[383]

316 On 6 May 2014 the police searched from 672 North West Road to the intersection of Dandaragan Road and North West Road and various other spots in the area where they thought that human remains could be left.[384] No items connected to the disappearance of Ms Dodd were found.[385]

317 On 12 January 2016 the police searched the eastern side of Brand Highway near the Hill River bridge. Nothing was located in the course of that search.[386]

318 There is no evidence that Ms Dodd got a lift with anyone other than Mr Spry and Mrs Johnson and, by inference, the person who took her away from North West Road. I accept that the last reliable sighting of Ms Dodd was made by Mr Stribley at the location of the 961 marker at about 11.40 am. By then, Ms Dodd had walked a total of 3 km east from Winjardie Road where Mrs Johnson dropped her off. It is likely that she continued to walk. She had a further 13 km to travel to get to the Seldom Seen farm. No witness who travelled on North West Road after about 11.40 am sighted Ms Dodd or anyone else in that area. There were no witnesses who claimed to have been in the area of the location 961 marker from around 11.40 am ‑ 12.10 pm, apart from Mr Peacock and Mr Barrett. I have given reasons why the failure of Mr Peacock and Mr Barrett to see Ms Dodd is not decisive.

319 There are witnesses who claimed to have driven along North West Road at around the location of the 961 marker from about 12.10 pm onwards. None of them saw Ms Dodd, other than Mr Bruce Smith and Mr Davies, whose evidence I do not accept.

320 In making these findings and assessing the evidence of the witnesses who travelled on North West Road on 29 July 1999, I have taken into account that most of the witnesses could not be precise about times and locations. However the weight of all the evidence permits me to make certain findings.

321 I find that Ms Dodd disappeared from somewhere between the location of the 961 marker and 2 km east of that area on North West Road, between about 11.40 am and 12.10 pm on 29 July 1999. There have been no reliable sightings of her since then, despite extensive searches. Entirely contrary to her past habits, she has not contacted her parents, family or friends. Ms Dodd's bank account[387] and her Centrelink file[388] have not been used since 29 July 1999. No one using her name or her identity has been recorded as leaving Australia.[389] It is a sad, but inescapable, conclusion that she is dead.

322 Ms Dodd had no means of leaving North West Road by herself. Indeed, she was intent on following it until she got to the Seldom Seen farm. It was her intention to hitchhike to the Seldom Seen farm. Given that she disappeared from the road and never arrived at her destination, another person must have picked her up from the road. In order to do so, this person must have had a vehicle of some description. It is a further inescapable conclusion that whoever picked her up was also responsible for her death.

323 On 3 August 1999 the accused gave a written statement to the police about his movements on 29 July 1999.[390] The accused was not a suspect at that time and he gave his statement voluntarily. In it the accused said:

On Thursday, 29 July 1999, I was at home. I live with John McConnell, and I had friends staying as well. Their names are Paul and Catherine. I don't know their surnames but I have known them for a couple of years. I call Paul, 'Harley', and Catherine, 'Cat'.

Paul and Catherine were going back to Perth and Paul was going to have a party at his house on Saturday night. I was planning to travel with them in the morning. I don't wear a watch but I got up about 8 am. Paul and Catherine were already up. John had already gone to work. ...

I didn't see John at all this day.

...

Paul and Catherine had been staying with us since Tuesday afternoon and had planned to go back to Perth on Wednesday. They stayed the extra night, because it was raining on the Wednesday. I didn't travel to Perth with them that morning, because our food supplies wouldn't have lasted John until I got back on the Sunday. I decided to go into town and get supplies before leaving. When I - when I say 'town', I mean Moora.

I had breakfast, and I showered. I think I had toast, but I'm not sure.

Paul and Catherine left first, before 9 am. They both ride motorbikes.

... I planned to meet them at their house, in Beaconsfield, in the afternoon. I hadn't been there before, which is why I wanted to ride with them.

I left home about 9.30 am and drove John's white Holden HQ ute into Moora. It's about a 50 kilometre drive and takes me just over half an hour to get there. It wouldn't take more than 45 minutes. The car doesn't do more than 80 kilometres an hour.

I drove down North West Road to Dandaragan Road. I turn left and drive into Moora.

I don't remember seeing anybody hitchhiking at this time. If I did see a hitchhiker, I would stop and give them a lift. I have hitched before and know what it's like to be stuck.

When I got to Moora I withdrew my pay of $496 from the Bankwest branch. This would have taken 10 minutes at the most. I returned 10 weekly videos at the video store and hired another 10. I spent some time looking for something I haven't seen. I can't remember what I got out. I would have been there 15 or 20 minutes.

I went to the post office and paid $80 for a postal order to pay a fine to the Ministry of Justice. I still have the money order. It is signed by a B. Brown, and it is numbered 5529417876.

I also got a tax pack from the post office. I think it was the last one, because I had to go to the newsagency to get a second one for John. I don't think I bought anything from the newsagency. I wasn't there long.

I then went back to the car to drive to the supermarket and the butchers. They're both across the railway line.

I stopped off at the bakery and bought a couple of pies for lunch. I'm not sure what time it was. This was the last thing I did before leaving town. I'm pretty sure it was after 12 pm. There were a few people in the bakery.

Before the bakery, I went to the supermarket and the butcher.

The supermarket is a Supa Valu, and I got basic stores like bread, veggies, and canned goods. I try and buy enough to last about two weeks. I would spend about $150.

I then went to the butchers next door and bought about $50 worth of meat, again, to last about two weeks. I know the butcher as Darren. I will have had a yarn to him about something. I can't remember what.

I don't know how long this shopping took me.

I then went to drive out of town and stopped off at the bakery, as I've said.

I got home around 1 pm.

I drove the same route home, and I can't remember seeing any hitchhikers.

If I had have seen a young girl hitchhiking, I would remember her for sure. I would have stopped to find out where she was going. You don't see many people hitchhiking down those roads, especially young girls.

I did not see or pick up any hitchhiker on this day.

I unpacked the supplies when I got home, and I left a note for John to repack the meat. I had just put it all in the freezer.

I was in a bit of a rush, because I wanted to get going.

I packed my saddlebag and rode my motorcycle to the Badgingarra Roadhouse. I fuelled up the bike and left for Perth.

The time would have been about 1.30 pm.

I hadn't packed any pants or undies because I was going to buy some in Perth. In the saddlebag were some tools for the bike, a towel, jumper, and a shirt. I forgot to pack any toiletries.

When I bought the fuel, I paid Ian McCooke my outstanding bill for about $20. He would have recorded it in the accounts book. I remember it's number 13.

... Leaving for Perth, I turned onto the Brand Highway.

Just as I was pulling out of the roadhouse, I saw Keith Skelley pulling in.

I road my motorbike, which is Moto Guzzi, registration DN2527.

I don't remember seeing any hitchhikers on the Brand Highway.

I wouldn't have been able to give anyone a lift, because the bike only has one seat anyway.

I came into Perth via West Swan, and took the Roe Highway to Albany Highway. I then turned onto Nicholson Road.

While I was riding down Nicholson Road, a car turned in front of me and crashed.

I was taken to Royal Perth Hospital by ambulance. I had a very badly injured right leg and injuries to my right hand and face.

I was admitted to hospital and was released on Sunday, 1 August 1999.

I heard about the missing girl near Moora on the Saturday night's news while I was in hospital.

I have been staying with Paul and Catherine since I got out. I'm on crutches and will be unable to work for about eight weeks

I have lived at my house, in Badgingarra, for about 15 years.

John has lived with me since May or June this year. He just got out of jail for indecent dealing.

He has told me that this was on his daughter and niece when he took them skinny dipping.

I have known John for a couple of years, and he told me this before he went into jail.

He was in jail for two years. I wrote to him while he was in jail to let him know how things were going and to keep in touch.

I have spoken to John a few times since the accident. I mentioned the missing girl to him, and he told me that the police were everywhere. He mentioned that he had noticed tyre tracks on the property. He said it might have been the police.

We keep any eye out for tracks so we notice if anything has been stolen, or we've been visited. I've had things stolen before.

Living with Paul and Catherine, we have talked about the missing girl and that the police would want to speak to us, because we were in town on the Thursday.

On Monday morning, I rang Fremantle detectives and gave my name. They said they would forward it on to missing persons.

On Monday night, I tried ringing Moora Police, but I couldn't get through. I then rang Crime Stoppers.

324 On 5 August 1999 the accused signed a typewritten version of that statement[391] with a few additions to it. In it he provided the following information about Mr McConnell's ute:

The ute is parked in the rear shed. It's the only car parked in there. It has a black bull bar with no spotlights and is generally clean other than the dust from the gravel drive way. There is no damage to the car that I know of. It has a bucket seat with a multi‑coloured seat cover.

I only drive it about once a week or a fortnight. I usually only drive the car to the pub or to get the groceries. I normally ride my motorbike around.

325 He also added that Mr McConnell's ute overheated if it was driven above 80 km per hour. In respect to his movements that day, the accused added that he had spoken to Mr Graeme Ellis at the front of the post office. He said:

He was sitting in his new four‑wheel drive. His wife had gone into the post office and we talked until she came out. I can't remember what we talked about. He had been to the doctor's about his sore back.

326 In respect of what he did when he arrived back home he added:

I parked the car around the back of the house and unpacked the supplies. I then parked the car in the shed.

327 The accused also added information about his future intentions. He said:

I have lived at my house in Badgingarra for about 15 years. My house is a two‑bedroom cottage.

I've had a for sale ad in The Sandpaper for the property. The Sandpaper is the local paper. I've only just got the phone on and have recently been advertising in the Saturday West Australian and The Sunday Times.

I've described my place as a two‑bedroom cottage on a treed block.

I'm not in any hurry to sell, but I plan to travel east on my bike.

328 It is not in dispute that the accused had his house for sale prior to 29 July 1999 and had told others that he had planned to sell it and move to Queensland.

329 On 27 November 2013 the accused took part in the EROI. During the EROI, his previous statement was put to him. He told the police that he could not remember the details of what he had done on 29 July 1999 but he confirmed substantially what was in his previous statement. There is nothing in the EROI which implicates him in the commission of an offence against Ms Dodd.

330 Mr Alexander (Ian) McCooke, was the proprietor of the Badgingarra Roadhouse in July 1999. He testified that on 29 July 1999 he saw the accused around 7.00 am at the roadhouse. He said that he was on a motorbike, wearing a black hat or a black crash helmet and overcoat. He refuelled his bike and came into the roadhouse and paid for the fuel and his account in the sum of $14.40.[392] Mr McCooke said that it was not possible that the accused came in at lunch time.[393]

331 Mr McCooke's evidence is to be contrasted with that of his wife, Mrs Christine McCooke. Mrs McCooke said that probably a bit before lunch on Thursday 29 July 1999 she saw the accused at the roadhouse with his dog, Miss Piggy. The accused went into the roadhouse and she stayed outside with the dog. The accused was 'in a good mood' and 'fairly normal'. He was riding his motorbike.[394]

332 Despite the evidence of Mr and Mrs McCooke, the parties agree that the accused paid his account in the sum of $14.40 at the Badgingarra Roadhouse at 1.36 pm on 29 July 1999.[395] It is implicit that this was on his way to Perth. Mr Keith Skelley's evidence that he saw the accused at about 1.30 pm at the roadhouse supports this timing. Mr Skelley said that the accused was on his bike with his dog. His demeanour was 'normal'. The accused told Mr Skelley he was on his way to Perth and he rode south down the Brand Highway.[396] Given that Mr and Mrs McCooke's evidence is inconsistent with both parties' cases, I place no weight on it.

333 It is not in dispute that St John Ambulance Service were called to attend the accused at 3.41 pm on 29 July 1999 at the corner of Langford Avenue and Nicholson Road, Lynwood, as a result of an accident between his motorbike and a car. The accused was taken to hospital, where his injuries were found to include two spiral fractures of the right fibula, a laceration to his right leg and fractures of one of his right toes. The fractures were treated conservatively and the right leg laceration was stitched. The accused was discharged from hospital on Sunday, 1 August 1999.[397] He returned to Badgingarra on 10 August 1999. He was then on crutches. By 17 August 1999 he was still using a crutch, but he was mobile.[398]

334 On 29 July 1999 Mr McConnell went to work at about 6.30 am. He was working that day with Bradley Hammond and Mr Terry Jones. They were mulesing sheep on a farm in the district until approximately 5.30 pm.[399] The three men did not leave the farm at which they were working at any time during the day and Mr McConnell did not use his ute that day. Mr McConnell had recently been in prison serving a sentence for child sex offences.[400] Despite this, the evidence is clear and I am satisfied that Mr McConnell and Bradley Hammond have alibis for the time Ms Dodd went missing.

335 Bradley Hammond drove his car to the accused's home in the morning before work and left it there for the day. Mr Jones picked up Mr McConnell and Bradley Hammond from the accused's home and took them out to work on the Wilkinson farm.[401] Mr McConnell's ute remained at the accused's home.

336 The accused had permission to use Mr McConnell's ute on 29 July 1999. He told Mr McConnell that on 29 July 1999 he was going to buy supplies for the household and was then going to ride his motorbike to Perth for a party on the weekend.[402]

337 Mr McConnell got home that evening and found his ute in the shed out the back of the accused's home. He said that location was unusual, as the accused did not usually park it in the shed. Mr McConnell looked for damage on the utility.[403] He saw that the indicator lever had been broken off and was lying on the floor of the vehicle, on the driver's side floor of the vehicle.[404] Inside the house was a note from the accused asking Mr McConnell to separate the meat that he had purchased that day.

338 Mr McConnell found a bulk package of meat in the freezer which required repackaging into smaller lots for use.[405] This request is consistent with the accused arriving home from Moora and being in a hurry to leave for Perth, which is what he told the police in his 3 August 1999 statement.

339 The accused's case is that he told the police the truth about his movements on 29 July 1999. Specifically, he submits that I should accept that he told the police the truth that he left Moora after 12.00 pm and got home around 1.00 pm and did not encounter Ms Dodd on his way home.

340 The question for me to answer is whether the State has satisfied me that the accused was on North West Road east of the location of the 961 marker between about 11.40 am and 12.10 pm and had the opportunity to pick up Ms Dodd. The accused says that he was in Moora between these times and thus did not have the opportunity to pick up Ms Dodd and to kill her. I remind myself that there is no onus on the accused to prove that he did not have the opportunity to pick up Ms Dodd and to murder her. The onus of proof remains on the State at all times.

341 Ms Catherine Edwards and her then partner, Mr Paul Springer, were friends of the accused through a common interest in motorbikes. On Tuesday, 27 July 1999, Ms Edwards rode her BMW motorbike from Geraldton and met Mr Springer at the accused's home on North West Road.[406] Mr Springer had ridden up from Perth on his Yamaha motorbike. There they met the accused and were introduced to his tenant, Mr McConnell. Ms Edwards and Mr Springer only intended to stay one night but because of bad weather on Wednesday, 28 July 1999, they decided to also stay Wednesday night with the accused.[407]

342 On either Tuesday or Wednesday, Ms Edwards was a passenger in Mr McConnell's ute when Mr McConnell drove it to Badgingarra Tavern to buy alcohol. She recalls the trip as being very slow but does not recall the car backfiring or making loud noises. Ms Edwards was wearing earrings with a post and stud fixing.[408] It was not suggested to her that she left an earring in Mr McConnell's car. I am satisfied that the ankh earring later found in Mr McConnell's ute was not Ms Edwards' earring.

343 On Thursday 29 July 1999 Mr Springer recalls Mr McConnell being up very early. Ms Edwards woke up early to repack the bikes after she had coffee and breakfast. When she got up, Mr McConnell was getting ready to go to work. Mr McConnell left the house and then she heard a vehicle leave. She did not see anyone else but she heard another couple of cars arrive and definitely one leave.[409] She recalls a metallic coloured sedan was left at the front of the house.[410] These events are entirely consistent with the statement of the accused and the evidence of Bradley Hammond, Mr McConnell and Mr Jones to the effect that early that morning Mr Hammond drove to the accused's home in his car, left it there and he and Mr McConnell were picked up by Mr Jones to go to work that day.

344 Ms Edwards and Mr Springer left the accused's home at about 9.05 am on their motorbikes and rode to the Badgingarra Roadhouse.[411] This time is reasonably precise because Ms Edwards made a phone call from the public telephone outside the roadhouse at 9.17 am.[412] Ms Edwards' motorbike was booked in for a service that morning in Perth and she wanted to advise the dealership that she would be late for the service.[413] It would only have taken about five minutes for Ms Edwards and Mr Springer to ride into Badgingarra from the accused's home.

345 When they left the house, Ms Edwards said that the accused was getting ready to go to Moora.[414] Ms Edwards believes that they left the house around the same time, although Ms Edwards did not see the accused drive out. She said that from her memory, she believed he took Mr McConnell's ute. Ms Edwards' evidence tends to indicate that the accused was at least getting ready to get into the ute and leave his property when Ms Edwards rode away. Mr Springer was less certain about the accused's whereabouts when they left the house but he believes that the accused was at home when they left.[415]

346 Ms Edwards and Mr Springer rode to the Badgingarra Roadhouse. Ms Edwards borrowed a phone book to find the telephone number for the dealership. She walked to the phone box, which was the same one used by Ms Dodd later in the day.[416] She rang and told the dealership that she would drop the motorbike off about 1.00 pm. She was hoping that the wind might blow itself out, so they stayed at the roadhouse for quite some time before she and Mr Springer commenced their trip to Perth.[417] Once in Perth they dropped off Ms Edwards' motorbike and returned to their home in Beaconsfield.[418]

347 Ms Edwards and Mr Springer had arranged for the accused to come down later in the day from Badgingarra and stay with them in Beaconsfield. Ms Edwards believes that the accused had business to attend to in Perth and wanted to catch up with friends. Mr Springer also had a party planned the following weekend which the accused intended to attend. Ms Edwards was expecting the accused to arrive at their home by about 3.00 pm ‑ 4.00 pm.[419]

348 Before Ms Edwards and Mr Springer left Badgingarra, the accused told them that he could not travel down to Perth with them because he had to go to Moora for an appointment. He did not say what the appointment was for or with whom. The arrangement had been that the accused would return from Moora to his property at Badgingarra and then he would pick up his motorbike and his dog before leaving for Perth.[420]

349 Later the same afternoon, Ms Edwards received a phone call from Royal Perth Hospital to say that the accused had been involved in an accident in Perth. A few days later, the accused went to stay with Ms Edwards and Mr Springer after he was released from hospital. He was on crutches and in pain.[421]

350 Mr Springer recalled him being 'pretty quiet' during that week but acknowledged that could have had something to do with the painkilling drugs he was taking.[422]

351 Ms Edwards heard on the radio that Ms Dodd had gone missing from Badgingarra. She spoke to Mr Springer and then the accused and said, 'Well, the police will want to know who everybody was so why don't we make it easier for them. We will contact them and say, "Look, we were at the roadhouse. I didn't see her at the roadhouse".[423]

352 Ms Edwards testified that neither the accused nor Mr Springer were particularly eager to contact the police.[424] However the accused said something to indicate that he understood that he was someone who lived fairly close by and that the police would probably want to know who was in the area. Mr Springer testified to the effect that there was no reluctance on either his or the accused's part to call the police. I accept Ms Edwards' account. She was an impressive witness. Mr Springer had a poorer recollection and his demeanour bordered on the flippant.

353 Eventually, the accused agreed to contact the police and as he was the local resident, to phone Crime Stoppers.[425]

354 The accused stayed four or five days with Ms Edwards and Mr Springer, and then he relocated to another friend's house, before he returned to Badgingarra.[426] Ms Edwards believes that the accused was given a lift back to Badgingarra because he could not ride his motorbike. She believes that it was friends called the McQueens, or one of their friends who gave him a lift.[427] Mr Springer told the police that he hired a car, which was paid for by the accused, and he drove him back to Badgingarra.[428] Mr Springer accepted that if that was what he told the police it must be right, although he now has no recollection of doing that.[429] It is not important as to who is correct.

355 A couple of months later Ms Edwards and Mr Springer returned to the accused's home for his going away party after he had sold his property. Ms Edwards said the accused was going over east, possibly Queensland. His plan was to find somewhere he wanted to settle. He had been up there for a few years and it was time for him to move on.

356 On 29 July 1999 at about 9.30 am Mrs Crouch left her family farm to drive a red Toyota Lexcen station wagon into Moora to do the weekly shopping and attend to other chores. The farm is on the corner of North West Road and Badgingarra Road. The farm gate is on Badgingarra Road and less than 1 km from the intersection.[430] She turned right onto Badgingarra Road and right onto North West Road. She estimated that it took her about 45 minutes, travelling at 110 km per hour to get to Moora.[431]

357 Mrs Crouch's farm is about 50 km from Moora. If Mrs Crouch drove at a constant 110 km per hour it would take only 27 minutes to drive to Moora. The fact that Mrs Crouch estimates that it took about 45 minutes to travel between her farm and Moora indicates to me that she was a slower drive than she recalls or that she left home later.

358 On North West Road about half way between Muthawandery Road and Agaton Road, Mrs Crouch overtook the accused, who was driving Mr McConnell's ute, in the direction of Moora. She estimated that the ute was travelling at 70 km per hour. She knew the accused because he was the gardener at Badgingarra Primary School, which her daughter attended.[432]

359 Mrs Crouch did not estimate the time at which she passed the accused. However it is about 30 km from her farm gate to the midpoint between Muthawandery Road and Agaton Road. If she was travelling at about 110 km per hour it would take her about 16 minutes to have reached that point. If she left home at about 9.30 am, this means that she first saw the accused at about 9.45 am that morning. Allowing for the fact that she may have been driving more slowly or have left home later, she may have overtaken the accused five to 10 minutes later. She still had about 22 km to drive to Moora. If she continued to travel at about 110 km per hour, it would have taken her about 12 minutes to get to Moora. If I again allow for the fact that she was driving more slowly, she would have arrived in Moora between 10.00 am ‑ 10.10 am. It also means that the accused would have arrived in Moora between 10.05 am ‑ 10.15 am.

360 Mrs Crouch parked her car near what was then called the Melrose Store, an independent grocer, on the corner of Roberts Street and Dandaragan Street, Moora.[433] She then went to the Westpac Challenge Bank and did the farm and personal banking. She received a transaction receipt for her personal banking which recorded the time of the transaction as being 10.19 am.[434] This time is generally consistent with Mrs Crouch's other evidence of the times at which she did certain things. It is also consistent with my conclusions concerning the timing of her trip into Moora.

361 Mrs Crouch then went to the pharmacy on the opposite side of Dandaragan Street. She spent about five minutes in the pharmacy. She then walked to the newsagent on Padbury Street and again spent about five minutes in there. After leaving the newsagency she walked back along Padbury Street to the corner of Padbury and Dandaragan Streets. As she walked back toward the post office, which is on the corner of Padbury and Dandaragan Streets, she saw the accused. She is not sure which direction he was walking, but she believes that he may have been coming out of the post office. She testified that this was well before 11.00 am.[435] Under cross‑examination she acknowledged that in her statement she had said that it was before 11.00 am. She agreed that was correct. However 'before 11.00 am' is not specific as to how long before 11.00 am it was. On my analysis and given the evidence which I will shortly relate about the time the accused was in Australia Post, this encounter would have taken place shortly after 10.35 am.

362 Mrs Crouch said hello and went to keep walking. She heard the accused behind her say 'hello'. She stopped, and they chatted for about five minutes. The accused asked her how her son was going at boarding school. Mrs Crouch tried to keep walking. The accused walked towards Mr McConnell's ute, which was parked outside the post office.[436]

363 Mrs Crouch then walked to Purser's Butchery which is on the same side of Dandaragan Road as, and close to, the pharmacy. Mrs Crouch was in the butcher's shop for five to 10 minutes. She then went to Melrose Store and did her weekly grocery shopping. She estimated that it would have taken 30 ‑ 40 minutes to complete. She then commenced to drive back to the farm. Mrs Crouch testified that she left Moora at about 11.45 am and that she arrived back at the farm at 12.30 pm.[437] If Mrs Crouch left Moora at about 11.45 am and the accused had left Moora at any time between 12.00 pm and 12.10 pm, she should have overtaken the accused in Mr McConnell's ute by the time she got to Badgingarra Road, which is where she turned off North West Road. Mrs Crouch recalls seeing a dirty white LandCruiser turning out of North West Road onto Dandaragan Road. She believes that it had two male occupants. She was certain that the driver was male. Otherwise she did not see another car or person on North West Road.[438]

364 Mrs Crouch was a very impressive witness. She appeared to be intelligent, perceptive and to have a good recollection of events. I accept her evidence on all counts, except that she drove at 110 km per hour between the farm and Moora or that it took her 45 minutes to do so. I also have some difficulty accepting her estimation of the time that she left Moora. Adding all the times that she said it took her to do her chores in Moora to the time on the banking receipt, she should have been ready to leave Moora closer to 11.30 am, than 11.45 am. Unfortunately, she was not questioned about this time discrepancy.

365 The accused was seen by Mr Travis Dunn who was working at the Checkpoint Café and video store on Roberts Road, Moora. Mr Dunn said that on 29 July 1999 at about 10.30 am ‑ 11.00 am, the accused came into the store. As he walked in, he put 10 videos on the front shop counter. He then walked around and selected 10 more videos to hire. As he was very busy, Mr Dunn did not fill out the cards to the videos. He wrote the accused's name on a piece of paper and attached it to the video cards. He put the videos into the accused's bag for him, and the accused paid for the videos. The accused then left the store. This type of transaction was a weekly occurrence. The accused was wearing black pants, a black shearer's‑type jacket, and a grey‑blue coloured woollen beanie.[439]

366 If, as the accused told the police, the second thing the accused did when he arrived in Moora was to go to the video store, I am of the opinion that he was at the store well before 10.30 am. The only way he could have been in the store at or close to 11.00 am and been at Australia Post at 10.35 am is if he did some of his other shopping before he went into the video store and Australia Post. This seems so unlikely as not to be credible.

367 I appreciate that Mr Dunn said that the accused was in the video store between 10.30 am ‑ 11.00 am, but he did not have any documents to support his evidence. I am satisfied that he is in error and the accused was in the store around 10.20 am ‑ 10.30 am.

368 At 10.35 am the accused was in the Australia Post shop in Moora. He purchased a money order in the sum of $80.00, payable to the Ministry of Justice. That transaction was completed at about 10.35 am.[440]

369 Another person to have seen the accused 'roughly' between 10.30 am ‑ 11.00 am in Moora was Mr Graeme Ellis. Mr Ellis and his wife had driven into Moora for a doctor's appointment at 10.00 am. After the appointment, Mrs Ellis parked the car on Padbury Street outside the post office and went into the post office. As Mr Ellis sat in the backseat of the car with his baby next to him, the accused, who he knew, walked past. They started to talk whilst Mr Ellis was in the car but Mr Ellis got out of his car and walked onto the pavement to continue the conversation.[441] Mr Ellis noticed that the accused's T‑shirt was inside out. Mr Ellis mentioned this to the accused. He ripped the label off it and walked off. Mr Ellis recalls the accused wearing a black T‑shirt and jeans.[442]

370 The accused said in his statement that after he had been to the post office he went to Supa Valu to do some shopping. In 1999 Supa Valu was on Gardiner Street, which is on the other side of, and parallel to, the railway line to the bank, Australia Post and the video store. If, as he said in his statement, he collected his car and drove to Supa Valu, across the railway line, this would have taken no more than five minutes.

371 The till rolls for the two Supa Valu tills and some EFTPOS transaction records for 29 July 1999 from Supa Valu were collected by the police in August 1999.[443] No witness from Supa Valu was called to explain the exhibits.

372 I have compared the EFTPOS records of purchase[444] and the till rolls[445] and determined that in relation to the Supa Valu till using the EFTPOS terminal ID Y69160 (till A) that on 29 July 1999 between 10.05 am and 12.27 pm the till clock was running about 16 minutes slow.[446]

373 In relation to the Supa Valu till using the EFTPOS terminal ID Y69161 (till B), I find that on 29 July 1999 between 10.16 am and 12.42 pm the till clock was running about four minutes slow.[447]

374 The accused submits that for some transactions there was a greater variance between the till clock time and the EFTPOS transaction time and that there was also significant variance in the time differential between transactions. He says that the time that is printed on the till roll before the record of the price for a series of items, is the time that sales transaction commenced. He says that the time on the EFTPOS records of purchase record the end of each transaction.[448] However after examining the till rolls, I have determined that if the till clock time which is printed on the till roll immediately below the amount of the EFTPOS total for a transaction is considered, in relation to till A there is always a variance of 15 ‑ 16 minutes between the till clock time and the time on the EFTPOS record of purchase and in relation to till B there is always a variance of three to five minutes between the till clock time and the time on the EFTPOS record of purchase. I am satisfied that the till rolls record one time for each transaction at the end of the record of the transaction and that is the time the transaction ended.

375 The accused also submits that there is no evidence that the time printed on the EFTPOS records is correct and I should not assume that it is.[449] I am satisfied that there is a standard consistency between the time variance in the records which establishes that the tills and the EFTPOS machines were each recording time consistently over the periods I have identified above. It is true that there is no evidence as to whether the till clock times or the time on the EFTPOS record of purchase is right or whether either time is right. However I am of the view that the times printed on the EFTPOS records of purchase are likely to be accurate, given that they are part of the national EFTPOS system. I will take the till an EFTPOS times into account so that the accused will not be prejudiced.

376 The accused said in his statement that he went to Supa Valu and did the shopping before he went to the butcher and Bakery. He said that he usually spent about $150.00. However given that the accused knew that he was going to be away for at least a few days,[450] it may be that he would have purchased fewer groceries than usual. It is not in dispute that he would have paid cash for any shopping.[451]

377 I have examined the till rolls to see if there is any evidence of cash transactions between $100 ‑ $200, which may assist to determine whether the accused was in Supa Valu on 29 July 1999 and, if so, when the accused was in the supermarket. I have identified the following transactions:

(1) till roll A - cash transaction for $114.90, which is recorded at 12.21 pm but in corrected terms would have finished at about 12.37 pm;

(2) till roll B - cash transaction for $103.70 which is recorded at 10.07 am but in corrected terms would have finished at about 10.11 am;

(3) till roll B - cash transaction for $142.15 which is recorded at 11.02 pm but in corrected terms would have finished at about 11.06 am; and

(4) till roll B - cash transaction for $131.50 which is recorded at 12.31 pm but in corrected terms would have finished at 12.35 pm.[452]

378 Transactions (1) at 12.21 pm ‑ 12.37 pm and (4) 12.31 pm ‑ 12.35 pm are too late to have been conducted by the accused in accordance with his statement to the police and the agreed fact that the accused paid his account at the roadhouse at 1.36 pm. That is because he could not have concluded either of those transactions and had time to go to the butcher and Bakery, get home, pack and get to the roadhouse by 1.36 pm. Further, they are not consistent with the time he could have finished his business at the post office and newsagency. If he finished that business by 10.45 am at the latest, it is contrary to common sense that it took him over an hour and a half to do the grocery shopping.

379 Transaction (2) at 10.07 am ‑ 10.11 am is too early to have been conducted by the accused, using the Australia Post receipt and Mrs Crouch's and Mr Ellis' evidence as objective evidence that the accused did not arrive in Moora until shortly after 10 am and he was on the other side of the railway line at 10.35 am.

380 That leaves on till roll B, transaction (3) for $142.15 which concluded at 11.02 am ‑ 11.06 am as the transaction on the Supa Valu till rolls which could have been conducted by the accused and which is consistent with the facts as I have found them. If that is his transaction, it would mean that his grocery shopping took him about 20 minutes to complete, which does not seem to be unreasonable.

381 In his statement, the accused said that he went from Supa Valu to the butcher. In July 1999 Mr Darren Greay operated the second butcher's shop in Moora called DJs Quality Meats (DJs Butcher). DJs Butcher was in the same building as Supa Valu.[453]

382 Mr Greay knew the accused as a regular customer of DJs Butcher.[454] The accused usually shopped around midday on a Thursday. His usual order was a side of mutton cut into chops. Mr Greay would put the whole of the side, including scraps, into several bags for the accused. The accused sometimes also purchased other items such as steak or sausages. It took five ‑ 10 minutes and a maximum of 15 minutes to cut up and package the accused's order.[455]

383 Mr Greay recalled the accused shopping on 29 July 1999. He testified that he discussed with him going to the pub whilst he got the accused's order ready, because it was going to take about 15 minutes to prepare. The accused told him that the pub was not open at that time.[456]

384 In response to this evidence, the State called evidence about the opening times of the hotels in Moora in 1999.[457] The evidence suggests that the hotels would have been open at the time the accused was in the butchers.

385 Mr Greay believes that on 29 July 1999 the accused ordered his usual purchase, which was a side of mutton and 3 kg of barbecue steak. A side of mutton cost $25 and the steak cost about $24.

386 Mr Greay agreed that on 5 August 1999 he had told a police officer that the accused had shopped at around lunchtime, meaning 12.00 pm ‑ 1.00 pm. He testified that he had come to that assessment by examining the shop's till roll. He gave the till roll, which had the date 29 July 1999 on it, to the police.[458] Mr Greay does not now have any other till rolls from around that time because they were later destroyed in floods in Moora.

387 Shortly before trial, Mr Greay had examined the till roll he gave to the police and concluded that the time and date on the roll is unreliable.[459] In evidence‑in‑chief he estimated that the accused came into the shop between 11.00 am and noon.[460] This estimate seemed to be connected with what he believed were the opening hours of the hotels in Moora and that he recalled the accused telling him that the hotels were not open. However other evidence tends to suggest that the hotels in Moora usually opened at 10.00 am.[461] Mr Greay refused to agree that the accused had, or the till roll showed that the accused had, purchased meat between noon and 1.00 pm on 29 July 1999. He did not agree that the estimation of time which he had given to the police in 1999 was accurate.[462]

388 Consequently, unless the till roll together with the other evidence of Mr Greay can prove the time at which the accused came into the store, there is no evidence of the time on 29 July 1999 that the accused was in DJs Butcher at Moora.[463]

389 One of the main reasons why Mr Greay concluded that the records on the till roll did not accurately reflect the time and date on which those transactions occurred is because the till roll which he gave to the police commences with sale transactions at 8.08 pm[464] on 29 July 1999.

390 Mr Greay's evidence was that he would start work anytime between 4.00 am and 6.00 am in the morning and finish between 7.00 pm and 9.30 pm, depending upon how busy he was. The weekday shop trading hours were from 8.00 am ‑ 6.00 pm. He testified that his first customers arrived from 8.15 am[465] but that they could have come in at any time between 8.00 am and 9.00 am.[466]Consequently, he would not have been conducting sales at 8.08 pm.

391 Mr Greay could not recall when he had purchased DJs Butcher but on the basis of the estimates he gave, he would have operated it for over five years prior to July 1999. When he purchased the business he inherited the till from the previous owner.[467] He was shown how to do basic operations on the till such as recording sales and ringing up the daily and total balances.[468] He used the till for those purposes. He did not record payments by cheque on the till at all. He did not have EFTPOS facilities.[469] Thus, unlike Supa Valu and the Bakery till records, there is no ability to cross check the times printed on the till roll with the EFTPOS records. He did not know how to change the date and time on the till. Consequently, he had not done so.

392 At the end of the day's trade he would obtain a total of the day's trading and the number of customers from the till. On a Thursday, Mr Greay would usually have 80 ‑ 120 customers. The portion of till roll provided to the police was for 56 customers. As a result, Mr Greay does not believe that the portion of the till roll which he gave the police was for a full day. Although, in giving the evidence about the number of customers he had in a day, it is unclear whether Mr Greay took into account the number of customers who paid by cheque and whose transactions he would not put through the till. The 56th customer was recorded as being at 5.26 am, based on my findings as to how to read the till roll.

393 The State's case is that no conclusions can be drawn from DJ's Butcher's till roll because of the lack of evidence to prove the variance between the till clock and the true time a sale was conducted.

394 The accused submits that the time of each transaction on the till roll is printed on the till roll before the amount of the transaction is rung up and that I should infer that the till clock was fast by 12 hours.

395 I have examined the till roll and am of the same view that I have come to in respect to the Supa Valu till rolls. That is, that the concluding time of each transaction is printed at the end of the record for that transaction. On the DJ's Butcher's till roll, the till printed consecutively, on separate lines, the number of the operator,[470] the price of individual items (if they were rung up individually), the total cost, the amount of cash accepted, the change to be given, the transaction number and a time. The process was then repeated for the next sale transaction.

396 In relation to any adjustment to be made to the time printed on the till roll for an individual transaction, Mr Greay did not accept that the till roll which he gave to the police was for the day 29 July 1999. Secondly, Mr Greay did not accept that the till clock was out by 12 hours.

397 Nevertheless the accused submits that I can conclude that the till clock was fast, as opposed to slow because it commences with till balances which Mr Greay said that he did at the end of each day.

398 The till balances recorded at the commencement of that portion of till roll given to the police have printed times of 7.00 am and 7.19 am respectively on 29 July 1999. There is then a break of nearly 13 hours before the next record of any kind is made on the till. The next record is another till balance which is stated to be printed at 8.08 pm on 29 July 1999. These till balances are consistent with Mr Greay doing two till balances at the end of one day's trade and a till balance the following morning before the start of trade. Unlike individual sale transactions, till balances recorded on the till roll include a date which is automatically calculated by the till.

399 There then follows sales transactions commencing purportedly at 9.26 pm and concluding 5.26 am. As there was no suggestion that the butcher traded in the evening, the till roll times only make sense if I conclude that the till roll is fast. If it was slow, it would mean that the butcher was trading in the middle of the night. I find that the till clock was fast.

400 Next, the accused submits that by adding or subtracting various amounts of times to certain transactions on the till, it is possible to work out that the till times only make sense if the till clock was about 12 hours fast. However that is on the basis that the time for each transaction is printed at the beginning of the transaction; whereas, I have found that the time of a transaction is printed at the end of the transaction.

401 On my analysis of the till roll, if I accept that the till roll records sale transactions for 29 July 1999, and the till clock was 12 hours fast, the till roll would record that the first sale which was put through the till occurred at 9.26 am, which appears to be too late to be Mr Greay's first customer of the day.

402 There is only one transaction on the till roll for the approximate cost of the accused's usual purchase being for $43. The time printed on the till roll for that transaction is 12.42 am. The time printed before the transaction is 12.37 am but I am satisfied that this purported to be the time that the previous transaction concluded. If the till roll is 12 hours fast, the transaction occurred at 12.42 pm.

403 There is no other transaction on the till roll consistent with the cost of the items which the accused usually purchased and no other transaction relied on by the accused as being consistent with what he told the police.

404 There are a number of obstacles to me finding that this transaction is that of the accused. First, Mr Greay did not accept that he had provided the till roll for 29 July 1999 to the police. The most favourable finding to the accused that I could make in this regard is that Mr Greay intended to give the till roll for 29 July 1999 to the police.

405 Secondly, Mr Greay did not know what adjustment was required to be made to the time printed on the till roll for a transaction to ascertain the time at which the transaction occurred. Thirdly, quite complex, arbitrary adjustments and assumptions have to be made to reach the conclusion that the till clock was fast by any particular period of time, let alone that it was the accused who conducted the transaction for $43. As the parties have agreed with respect to the till clocks at the roadhouse and Supa Valu, till clocks are not necessarily fast or slow by a round number of minutes or hours. Fourthly, if I accept the accused's analysis that the time printed on the till roll is 12 hours fast, the transaction would have concluded at 12.42 pm. This would allow over an hour and a half between the time the accused concluded his transaction at Supa Valu and the conclusion of his transaction at the butcher. This is definitely too long a gap. Further, it could not be right as it does not allow the accused sufficient time to go to the Bakery and to get home by about 1.00 pm, as he alleges he did[471] or to get to the roadhouse by 1.36 pm. Fifthly, there is no other evidence independent of the accused, for example from EFTPOS records, which enables me to determine the time of the relevant transaction. Sixthly, Mr Greay admitted that he did not put all sale transactions through the till for tax reasons. Although he said that it was only purchases paid for by cheque which he did not put through the till, I cannot discount the possibility that he sometimes omitted to put other transactions through the till.

406 I conclude that I cannot determine whether the transaction on the till roll submitted by the accused as being the transaction which he conducted at DJs Butcher is his transaction, or if it is, the time at which he conducted that transaction. All I can be satisfied of is on the basis of other evidence[472] that on 29 July 1999, the accused went to DJs Butcher in Moora and this is likely to have been around 11.10 am and that he would have concluded his purchase by 11.25 am.

407 Next, the accused said in his statement that he went to the Pioneer Bakery in Moora (the Bakery) and bought two pies. Ms Maria Russell was the office manager at the Bakery in July 1999.[473] On 25 August 1999, at the request of the police, Ms Russell searched the till records for the Bakery for 29 July 1999 for a transaction of two pies, which would have cost $4.40. At that time the Bakery had two tills, one was computerised and one was not.[474] On the computerised till records, Ms Russell found one transaction for two pies and for the correct amount of $4.40 (the $4.40 transaction). It was a cash sale and consequently no time was recorded for the sale.[475] It was numbered transaction 105, which meant that it was the 105th transaction that day on the computerised till. On the non‑computerised till records, Ms Russell did not find a transaction for $4.40.[476]

408 The only means by which Ms Russell could identify the approximate time of the $4.40 transaction was to locate the nearest EFTPOS transaction on the till records, as EFTPOS transactions included a transaction time. The first EFTPOS transaction Ms Russell found was transaction 136, being the 136th transaction on the computerised till. It occurred at 12.26 pm. Taking into account the trading conditions, Ms Russell believes that the $4.40 transaction would have occurred one ‑ two hours before transaction 136.

409 Ms Russell found two earlier EFTPOS transactions receipts, one at 11.00 am and one at 11.43 am. She testified that they were within the search timeframe. She said that they did not come from the computer till because there was no corresponding computerised till transaction record. Therefore, she could not link their time to any cash sale on the computer till.[477]

410 It was put to Ms Russell that she had simply found transaction 136 and stopped looking for other EFTPOS transactions which could have assisted to identify the time of the $4.40 transaction. It was put to her that this conclusion was verified by her written statement in which she did not say that she had looked at any EFTPOS transactions before transaction 136.[478] Ms Russell denied that she had not looked at the earlier EFTPOS transactions, although she acknowledged that she did not have a specific recollection of doing so. In re‑examination she explained the process which she adopted in checking for EFTPOS transactions, which included searching for other EFTPOS transactions.[479] She said that there was no need to state in her written statement that she had examined those earlier transactions because they could not be linked to a cash sale on the computerised till. Consequently they could not assist to identify the time at which the $4.40 transaction occurred. She said that there was only the one EFTPOS transaction with a specific time that could be linked to a transaction on the computer till. That was transaction 136.[480]

411 I accept Ms Russell's evidence generally and specifically in relation to that issue. Ms Russell had been declared a special witness because of a report which stated that she suffered from severe anxiety [481] which would make it difficult for her to give her evidence in open court. As a result of the special witness declaration she gave her evidence by audio visual link from another place. Despite those facts, Ms Russell gave her evidence in a clear and precise manner. I am convinced that she is a witness of truth and a reliable witness.

412 Ms Russell agreed that the busiest time of the day was from 12.00 pm ‑ 1.00 pm and that in 1999 the Bakery was busy.[482] She also testified that the Bakery opened either at 6.00 am or 7.00 am.[483] Consequently, she agreed that the records indicated that on 29 July 1999 there was an average of 21 ‑ 25 transactions per hour on the computer till. Whilst Ms Russell agreed that there could be a significantly higher number of transactions between 12.00 pm and 1.00 pm, she did not agree that it could have been twice the average.[484] However she did agree that it was possible that the 31 transactions between the $4.40 transaction and transaction 136 at 12.26 pm occurred in less than one hour.[485]

413 On the basis of Ms Russell's evidence I am satisfied that there was only one sale at the Bakery on 29 July 1999 for two pies only. That sale took place at between 10.30 am ‑ 11.30 am, but that is a broad estimation.

414 In the statement which Mr McConnell made to the police on 4 August 1999 he said that he recalled that when he got home on the evening of Thursday, 29 July 1999, it was still light outside. He noticed that his ute was in the shed and that the house was locked. It was unusual for the ute to be in the shed after the accused had used it, as he usually just parked it 'everywhere'.[486]

415 Mr McConnell immediately thought that the accused may have damaged the ute when he drove into Moora, so he went to the shed to look at the ute. Mr McConnell noticed that the indicator lever had broken off and was lying on the driver's side floor.[487]

416 The State submits that this damage was consistent with the indicator lever breaking when the accused had a struggle with Ms Dodd.[488]

417 The accused says that I should not rely on Mr McConnell's evidence because he has since died and thus he was unavailable to give oral evidence at the trial. The accused also points to evidence that when the police took possession of the ute from Mr McConnell on 5 August 1999, the indicator lever was intact.[489]

418 Senior Constable Darren Harston is a qualified mechanical fitter and vehicle examiner. He is a member of the Institute of Automotive Mechanical Engineers. For nearly 19 years he has been a member of the WA Police Vehicle Investigation Unit. In the course of his employment he examines vehicles for mechanical defects.[490]

419 In relation to this matter he was asked to provide his expert opinion about the fitment and replacement of an indicator switch stalk on a Holden HQ ute of the same age as Mr McConnell's ute.

420 The State's purpose in leading this evidence was to prove, if it could, that it would have been possible for Mr McConnell to repair the indicator lever on his ute between 29 July 1999 and 5 August 1999.

421 As described by Senior Constable Harston, the process to replace the indicator lever is to remove the horn pad from the steering wheel with a Phillips head screwdriver. The next stage is to remove the steering wheel nut, which is underneath the horn pad. That nut secures the steering wheel to the steering column. It can be removed with a shifting spanner or a socket. Once that is done the steering wheel has to be removed from the steering shaft. There are two methods to do that. One is with a steering wheel puller. A steering wheel puller can be purchased cheaply from an auto parts store. The other method is simply to put your knees underneath the steering wheel, place the nut back on the steering shaft and strike it with a hammer.[491] The jarring releases the steering wheel. Senior Constable Harston said that is the non‑preferred method but it is one that is used quite regularly.[492] Once that is done, the place where the indicator stalk is attached with a Phillips head screw to the steering column is exposed. Only one screw secures the indicator stalk.[493]

422 Senior Constable Harston also described the way to remove the turning signal switch but it does not seem to me that this would have been required to be done in order to repair the indicator lever on Mr McConnell's ute.

423 In any event, Senior Constable Harston said that for someone who may not have performed the procedure before and is following instructions from a workshop manual, it may take no more than 30 minutes to remove both the indicator lever and the indicator switch mechanism. An experienced person could complete the task more quickly. In order to put it back together, the reverse process is completed. The steering wheel puller or alternative method is not required because tightening the steering wheel nut forces the steering wheel back into its line. For someone with basic mechanical knowledge, it would take about 30 minutes to replace the indicator lever and switching mechanism.[494]

424 In cross‑examination, Senior Constable Harston said that the indicator lever sits in a plastic groove in the steering column. He agreed that in an older car it is not unusual for a screw to work itself loose,[495] but he said that he had never encountered it doing so when the screw secured an indicator lever in a plastic housing, as in the case of this indicator lever and screw.[496]

425 In Mr McConnell's statement he said that on 28 July 1999 he did some work on the starter motor of the ute. He also said that he had two other HQ utes which were unregistered and which he used for parts. He said that this was where he got parts for the starter motor. He also said that he had collected some engine parts and a gear box from his step‑brother and taken them back to the accused's home.[497]

426 On 17 August 1999 when the police conducted a firearms search at the accused's home, there were numerous hand tools at the home. There were a number of men, including Mr McConnell, working on the ute. They appeared to have removed the engine in order to work on it.[498]

427 In a second statement dated 11 August 1999, Mr McConnell said that on 10 August 1999, he had taken the muffler off his ute and replaced it with a new one which he had purchased from Badgingarra Motors. He said that he had also bought another motor to put into the ute when he had time to do so.[499]

428 I acknowledge that Mr McConnell was not available to give evidence and so I have not heard his evidence tested under cross‑examination. I also take into account that Mr McConnell has been convicted of indecent dealing offences. Consequently, I am cautious about accepting his evidence.

429 On the other hand, the evidence about the broken indicator lever was given in his written statement dated 4 August 1999, which was less than a week after the relevant events. There is no reason that I know of why Mr McConnell would make up this part of his evidence. Further, there does not appear to have been any attempt by him to fabricate a story in order to implicate the accused. In any event, Mr McConnell has no apparent motive to do so, given that he had an alibi for the time Ms Dodd disappeared.

430 One of the main reasons why the accused says I should not rely on Mr McConnell's evidence in this regard is because there is no evidence, independent of Mr McConnell, that the indicator lever was broken and there is no direct evidence that he repaired it. The accused also submits that Mr McConnell's evidence that it was still light when he got home on 29 July 1999 is wrong because sunset was at 5.42 pm[500] and he worked until 5.30 pm ‑ 6.00 pm.[501] Further, after work and after being driven home, Mr McConnell went to the Badgingarra Tavern.[502]

431 On the other hand, it is plain from Senior Constable Harston's evidence that repairing or replacing the indicator lever is a relatively simple procedure for someone with mechanical experience like Mr McConnell.

432 After considering all of these matters, I conclude that it is probable that the indicator lever was broken after the accused had used Mr McConnell's ute on 29 July 1999. It is not a matter of great weight, as there are other ways in which the indicator lever could have been broken, other than during the course of a struggle with Ms Dodd. However it is one matter which I take into account in my deliberations.

Conclusions about the accused's movements on 29 July 1999

433 I am satisfied that the accused drove to Moora in Mr McConnell's ute on 29 July 1999, visited various retailers and conducted transactions with them. He then drove back to his home. The matter for me to determine is whether the timing of the accused's movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm.

434 My finding in this regard is that if I accept that the accused transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am. I am satisfied that the alibi is false, in that he did not leave Moora after 12.00 pm. There is no reasonable possibility that the alibi is true.

435 If he left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, he would have arrived at that area at around 12.07 pm. If, after she was last seen near the location of the 961 marker at around 11.40 am Ms Dodd had continued to walk towards Moora, as it seems likely she would have done, the accused would have been in the area where Ms Dodd was on North West Road at about 12.05 pm.

436 I find that the accused had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm. As the State acknowledges, the timeframe for him to encounter and pick up Ms Dodd is 'extremely tight'. However that is to be expected. If the accused is responsible for picking up Ms Dodd, then there will be no evidence of her being on North West Road after he drove past the area where she was on the road, and given that the encounter was opportunistic as he drove along the road, there will be no evidence that he had the opportunity to pick her up apart from that limited time he would have been driving past her location.

437 If the accused did not go to the Bakery or if he finished his business in Moora before 11.30 am, which is quite possible, he had the opportunity to encounter Ms Dodd between 11.45 am and 12.05 pm.

438 Given the accused's conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation, I am not minded to accept that he did visit all the businesses he said in his statement that he visited in Moora without independent proof that he did so. There is independent proof that he visited the video store, Australia Post and DJs Butcher. I also am of the opinion that it is likely that he went to the bank and Supa Valu because it was his usual practice to do so when he went to Moora. There is no independent evidence that he went to the Bakery. I find only that it is possible that he did. I do not make a positive finding that he did so.

439 Neither am I minded to accept his assessment of the time he did certain things without independent evidence to support what he told the police.

440 The next issue for me to determine is if he did encounter Ms Dodd on North West Road, whether he had sufficient time between then and 1.36 pm, when it is agreed he was at the Badgingarra Roadhouse, to kill Ms Dodd and dispose of her body?

441 I am of the opinion that it would have taken very little time for the accused to have killed Ms Dodd. If he had attacked her and she had resisted, it is quite possible that he could have injured her in order to subdue her and thereby have caused her death within a short period of time. However it is not logical that this could have occurred on North West Road. He certainly could not have concealed her body on the road. The accused would have had to drive somewhere more secluded in order to do this. One such place he could have attacked her would have been on his property. He may also have concealed her body there. However the accused was familiar with the area, having lived there for a number of years, and it is possible that he may have driven elsewhere. He then needed to have had time to leave her body somewhere it could not be found, leave his shopping in his house, write a note to Mr McConnell, pack a few belongings, collect his dog and ride to the roadhouse by 1.36 pm.

442 At 80 km per hour it would take two to three minutes to drive to his home, depending on where exactly he picked up Ms Dodd, and another six minutes to ride from his home to the roadhouse. If he did not take Ms Dodd to any other place, this would give him about one hour and 20 minutes to kill Ms Dodd, conceal her body and complete his other tasks, which I have described. If he had driven to some other location this time would be shortened but in either case, the accused would have had sufficient time to kill and conceal Ms Dodd's body and complete his other tasks.

443 The police were notified when Ms Dodd failed to contact family and friends on the evening of 29 July 1999.

444 Late on Friday 30 July 1999, Detective Edward Rowe, the senior investigative officer, and Senior Constable Borbally drove from Perth to Moora and commenced an investigation into the disappearance of Ms Dodd. The operation was, and remains, entitled Operation Bluegum.[503] Another detective, Detective Senior Constable Shane Graham, travelled from Perth to Moora on 31 July 1999.[504] Prior to the Perth detectives arriving, Moora police conducted initial searches and enquiries.[505] The office space for Operation Bluegum was originally within the Moora police station, but because of limited space being available due to flooding, it was transferred to a transportable office, or what would now be called a mobile police facility, situated at the rear of the Moora Police Station.[506]

445 Detective Rowe's principal methodology was to confirm the last known movements of Ms Dodd, to arrange searches of the area Ms Dodd had been last seen and where she was planning to go and to collect as much information as possible about people in the area and their movements, for later analysis.[507]

446 Senior Constable Debbie Bowen became the family liaison officer. As the investigation continued, different police officers joined and left the enquiry team.[508]

447 Detective Rowe tasked other officers to purchase items of clothing similar to that worn by Ms Dodd on 29 July 1999. A mannequin wearing that clothing was used by police at the Moora football grand final to try and refresh the public's memory.[509] The mannequin did not wear the earrings described by Ms Frederickson as the police were unable to purchase the same or similar earrings.[510]

448 Detective Rowe and his initial team members stayed in Moora for a number of weeks. Then they returned to Perth but travelled up to Moora and stayed in Moora for the working week. At some point the enquiry team moved to Perth.[511]

449 Detective Rowe reviewed the two statements made by the accused on 3 and 5 August 1999. As a result he became aware that Mr McConnell's ute had been driven on North West Road on 29 July 1999. Detective Rowe directed that Mr McConnell's ute be seized and examined.[512]

450 On 4 August 1999 Sergeant Keals, then a Detective Senior Constable from Geraldton Police Station, and Constable Cleaver, from the Moora Police Station, took a statement from Mr McConnell. Later that day the police saw Mr McConnell's ute at the accused's home.[513]

451 Mr McConnell made his initial handwritten statement to the police on 4 August 1999.[514] In the statement he gave some information regarding his use of his ute between 29 July 1999 and 4 August 1999. In addition to seeing the ute in the shed and the broken indicator lever, he said that night he stayed home and he did not get any visitors. On Friday, 30 July 1999 he got picked up by Mr Jones and he worked until he got dropped off at home at about 6.30 pm or 7.00 pm. He did not go out anywhere that evening.[515]

452 On Saturday 31 July 1999 Mr McConnell said that he went to work. He could not remember if he went to the roadhouse in his ute or in Bradley Hammond's car but he remembered being picked up at the roadhouse early by Mr Jones. He worked all day and got home late again around 6.30 pm or 7.00 pm.[516]

453 On Sunday 1 August 1999 he had a day off and he drove his ute to Jurien Bay to see his sons. He stayed with his sons for about an hour at the beach and then he drove to his step‑brother's farm just out of Jurien Bay. He collected some engine parts and other items and transported them back to the accused's home and put them in the garage. After this he went to the Badgingarra Tavern at about 4.00 pm. After that he went back to the accused's home. Later, he loaded his ute up and drove to Regans Ford where he camped the night in a caravan he kept on someone else's property. The following day, Monday 2 August 1999, he worked in that area crutching sheep. He drove back to Badgingarra around 8.00 pm.[517]

454 Whilst the evidence is not complete, there was nothing in the account which Mr McConnell gave to indicate that any female was in the ute between 29 July 1999 and when he gave his statement on 4 August 1999, or that anyone was in the ute in that period other than himself and perhaps his sons and Bradley Hammond.[518]

455 On 5 August, the police met Mr McConnell on the farm on which he was then working and obtained his permission to seize his ute.[519] The police then drove to Mr Jones', Mr McConnell's employer, property on the corner of Bibby Springs Road and Yerramullah Road, where the ute had been left, and seized it. Constable Cleaver put on a forensics overall with hood, booties and gloves and at about 1.00 pm he drove the ute to the Moora police station. He drove with the windows up. He has no recollection as to whether the indicators were working or not.[520]

456 On the same day Constable Cleaver drove Mr McConnell's ute to the St John Ambulance depot shed in Moora and left it there.[521] Although no witness said that they applied evidence tape to the doors and Constable Cleaver has no recollection of doing so, I am satisfied on the basis of photographs taken the following day that on 5 August 1999, after the ute arrived at the shed, the police applied evidence tape to the doors. The shed was then locked.

457 On 6 August 1999 Mr McConnell's ute was examined forensically, by Senior Constable Elliot and Sergeant Davison. They were experienced forensic officers, who had travelled from Perth to Moora to work on Operation Bluegum. Sergeant Davison was a senior constable at that time. Sergeant Davison was in the Fingerprint Bureau and he did fingerprint and crime scene work.[522] Senior Constable Elliot worked in the Crime Scene Unit.[523] Both witnesses were honest and doing their best to recall events which had occurred 18 years ago.

458 They undertook an examination of the ute in the St John Ambulance depot shed, where the vehicle had been left the previous day. At 9.00 am they commenced the examination by taking a video of the exterior and interior of the ute.[524] Senior Constable Elliot also took still photographs of the ute. The description I will now give is what I am able to discern from looking at the video and still photographs taken by Sergeant Davison and/or Senior Constable Elliott in 1999.

459 The ute had a manual transmission with a column gear shift. The indicator lever was in place on the right‑hand side of the steering wheel column. The driver and passenger footwells were very worn but they still both had rubber mats or lining. There was a considerable amount of sand and small pieces of debris in the footwells. There were no obvious signs that the ute had been recently cleaned, either inside or outside. Between the footwells was a large transmission tunnel, covered in carpet, which ran from below the dashboard and continued underneath the bench seat.

460 The ute had a single bench seat with a continuous backrest. The backrest had two moulded headrest areas, for the driver and passenger. The colour of the bench seat and backrest matched the interior lining of the doors and headlining.

461 The ute was fitted with sash seat belts for the driver and passenger.[525] There was a lap belt for a middle passenger. The only portion of the middle passenger's seat belt which was clearly visible on the video was the long piece of webbing which would be placed across the lap of the occupant. The part of the buckle which would normally be at the end of the webbing was not visible as the webbing strap was draped over the bench seat and the end of it was obscured by the front of the seat. The portion of the buckle into which the sash webbing would be secured may be visible but as it would be very close to the driver's lap buckle, I cannot tell whether there was one buckle or two buckles present in that area.

462 The seat was covered by a one piece blue and grey geometrically patterned car seat cover. I will later describe other parts of the seat cover which were only visible when it was examined after its removal from the ute.

463 The seat cover appeared to have been made to fit that particular model or a similar model vehicle as its shape fitted the moulded head rests of Mr McConnell's ute. The seat cover ran down the backrest and was tucked into the crease between the backrest and bench seat. The seat cover was obviously worn, damaged and faded in places. The cover was able to be secured to the seat in two ways. One was by a skirt of material which was sewn to the edge of the part of the cover which covered the seats.

464 In the video and photographs, the skirt material covered the base of the passenger side of the bench seat and it also went underneath the bench seat and behind the backrest. However on the driver's side of the bench seat the cover had come away from the base of the seat, so that part of the driver's seat was exposed and that portion of the seat cover which should have covered the lower portion of the seat was scrunched up underneath where the driver would have sat. This also meant that the portion of the seat cover which would normally have been underneath where the driver sat had moved towards the passengers' seat area. There were folds of material in that area. There also appeared to be ties at the bottom of the cover but on the driver's side these were definitely undone. On the passenger side, it was not clear whether they were tied and whether they secured the cover to the seat.

465 On the driver's side there were holes in the seat cover's top layer of material, although the lining appeared to be largely intact. There were no holes in the passengers' side of the cover.

466 The seat belt buckles and the webbing to which they were attached were visible on the bench seat on top of the cover. They protruded through two holes in the seat cover. The seat belt buckles and webbing appeared from the crease between the backrest and the bench seat, where I would normally expect them to emerge. As I have already noted, the lap portion of the middle passenger's belt was draped over the top of the seat cover and fell over the front of the bench seat. The buckles were quite chunky and the webbing was quite wide.

467 On the video and still photographs, there was no item visible on the car seat cover other than the seat belts and buckles. The seat belt webbing and buckles obscured those parts of the seat cover on which they rested. Other parts of the seat cover were obscured where the seat cover was folded on itself. The result is that it is not possible to see the entire seat cover or the entire seat in either the video or still photographs which were taken in August 1999. In particular, the area in which Ms Horner, a medical scientist at PathWest, first saw an earring in 2013 is obscured by a seat belt buckle and webbing.

468 At 10.05 am on 6 August 1999 the officers seized the car seat cover.[526] They placed it in a larger paper bag and labelled it AE 38. AE are the initials of Senior Constable Elliott. Sergeant Davison also wrote the time, date and a description of the item being 'seat cover' on the bag. He then folded the bag opening (the folded flap) over onto the lower portion of the bag and placed brown adhesive packing tape, which was in common use at the time, along the lip of the folded flap, so that it sealed the folded flap onto the lower portion of the bag. He stuck a piece of police blue and white evidence tape transversely over the brown packing tape and sealed it onto the lower portion of the bag. Thus, he secured the bag by a second means. He wrote his name 'Davison' and the date '6/8/99' along the white portion of the evidence tape.

469 The officers had different descriptions of how the seat cover was removed from the seat and folded. Sergeant Davison said that Senior Constable Elliott went to one side of the ute and he went to the other side. He said that they carefully removed the top of the cover from the backrest, folded it over and then folded it in on itself to ensure that any hairs or fibres on the cover stayed within it.[527] He said that they would have had to carefully move it, because of the holes in the cover where the seat belts emerged. He specifically did not recall exactly how the seat cover was removed and did not recall whether the seat cover was worked off or pulled off the seat belts and buckles or whether he and Senior Constable Elliott pushed the seat belts and buckles through the cover. Sergeant Davison did not recall looking underneath the seat belts and buckles.[528] He thought that the logical way to remove the seat cover would have been to release the bottom of the cover first and then, as carefully as possible, lift the whole of the cover off the seat and fold it.[529]

470 Senior Constable Elliot did not remember how they removed and folded the seat cover. He said that it was usual to fold the corners in on themselves. In doing so he would try to retain whatever could be on the seat cover, minimise contamination, minimise loss of evidence and 'all that type of thing'.[530] He could not recollect whether he had lifted the seat belts but he thought that he had probably done so.[531] He gave an explanation of a method he would use to remove the cover by folding the top of the seat cover onto the portion of the cover on the bench seat, pulling the seat belts through their holes in the cover from the back of the cover and then folding it up.[532] However like Sergeant Davison's explanation this was nothing more than the witness' best guess as to how he removed the cover.

471 Neither officer saw an item of interest on top of the seat cover.[533] Both officers were certain that the seat cover:

(1) was not examined carefully in situ;[534]

(2) was not vacuumed prior to being removed;[535] and

(3) was removed without disturbing its fabric so as to preserve as much of the trace evidence that may have been on top to the cover, within the cover.[536]

472 The reason why the seat cover was not examined carefully in situ was that the St John Ambulance depot shed was not secure, the lighting was poor and the condition of the shed was not sterile.[537] The officers examined the ute with the door to the shed open because of the poor lighting in the shed. If the officers had carefully examined the car seat cover in the shed, they would have risked contaminating it with material in the shed or material that had blown in from outside the shed. They would have also risked losing evidence which was on the seat cover because there was no sterile area where they could lay out the cover and ensure that any evidence which fell off the cover was collected without being contaminated by other material. Senior Constable Elliott said that another factor which influenced him was that he was not a member of Operation Bluegum and so he was not aware of the forensic investigations that may be relevant to the broader investigation.[538] These were all sound reasons for not examining the car seat cover in situ.

473 The accused submits that I should find that the police officers examined the seat cover in situ, that if an earring was on the seat cover the officers should have seen it and that the reason why they did not see an earring on it was because the earring was not there. He submits that as forensic officers, the officers would have looked at the whole of the cover and moved the seat belts to enable them to do so.

474 For the reasons the officers gave, I find that the police officers did not examine the seat cover carefully in situ. Further, it is likely that they removed the cover either by pulling the seat belts through from the reverse side of the cover or by lifting the seat cover off the seat belts or by a combination of these two procedures. In completing these actions, they did not see what was on the cover underneath the seat belts or tucked into the crease between the bench seat and the backrest.

475 I reject the accused's submission that it would not have been possible to remove the seat cover without looking at these areas. As the bottom of the seat cover was loose, it would not have been difficult for the officers to undo any ties which held it to the bench seat, if there were any, and then to remove the back of the backrest portion of the seat cover from the backrest. Even if there was some resistance in the material, this would have been eased by lifting the bench seat portion of the seat cover at the same time as the back of the backrest portion of the seat cover was removed from the backrest.

476 Once the seat cover was removed, the officers took five swabs from various parts of the ute. These were labelled by Sergeant Davison as AE40‑AE45. On 9 August 1999 the swabs were submitted to PathWest for DNA analysis.[539] The swabs were tested for the presumptive presence of blood. They all gave negative reactions and they were not analysed further.[540] In December 2000 the swabs were returned to the police.[541] On 3 September 2013 they were returned to PathWest for further analysis. They were tested for DNA but none was detected.[542]

477 Either Sergeant Davison or Senior Constable Elliot then vacuumed three areas of Mr McConnell's ute, being the seat, the driver's side footwell and the passenger side footwell.

478 Both officers claimed to have vacuumed the passenger side footwell.[543] I am satisfied that one of the officers is mistaken in his memory, but that one of them did it. They vacuumed as much of the area as possible including the side of the transmission tunnel closest to the footwell they were vacuuming. The material which was vacuumed from each area was caught by a filter paper in the vacuum. The vacuumings were separately collected, along with the filter paper used for that area, and placed into individual yellow top containers. Sergeant Davison wrote 'AE 48', '6/8/99', 'vacuumings passenger floor DN 735' on the label of the yellow top container containing the same. He wrote similar information on the labels of the other two yellow top containers. The vacuumings from the seat were labelled AE46 and the vacuumings from the driver's side footwell were labelled AE47. He then placed the three yellow top containers into a clip‑seal plastic bag. He wrote his name and the date on a piece of blue and white police evidence tape and stuck it over the top of the bag.

479 The officers then collected the contents of two ashtrays in the ute and the tree bark and debris which they found in the rear tray of the ute.[544]

480 The contents of the ashtrays were not analysed until 2013. There were 10 cigarette butts in the contents of the ashtray on the driver's door.[545] The first, third and fifth butts produced mixed DNA profiles consistent with more than one person contributing to that DNA profile. No further interpretation was possible because the result was too complicated or it was not possible to ascertain how many people had contributed to the mixture. The second butt gave a non‑reportable result which means that DNA was present in that sample, but it was not above PathWest thresholds for its scientists to have confidence in reporting the result.[546] The fourth and tenth cigarette butts returned single source profiles which matched Mr John McConnell's reference DNA profile.[547]

481 Using the STRmix software, which PathWest uses for determining likelihood ratios, Mr Scott Egan, a forensic scientist employed by PathWest, said that in relation to the DNA found from the fourth butt, it is greater than 100 billion in favour of Mr John McConnell being the donor of that DNA profile than an unknown contributor. In relation to the DNA found from the tenth butt it is greater than 86 billion in favour of Mr John McConnell being the donor of that DNA profile than an unknown contributor.

482 No DNA was detected on the sixth butt. In relation to the seventh and eighth cigarette butts, mixed DNA profiles with two contributors were obtained. A contributor identified within this mixed DNA profile matched Mr John McConnell's reference DNA profile.[548] It was greater than 100 billion in favour of him and an unknown person being a contributor to that DNA evidence than two unknown people being the contributors. There was not enough DNA from the second person for PathWest to make any further interpretation. In relation to the ninth butt there was a mixed DNA profile consistent with having come from two people.[549] A contributor matched the reference sample of Mr John McConnell. The mixture was not as strong, so the likelihood ratio was lower.[550]

483 There were 17 butts in the contents of the ashtray on the passenger's door.[551] Eight butts produced single source profiles which matched Bradley Hammond's reference DNA profile. It was greater than 100 billion in favour of Mr Hammond being the donor of that DNA profile than an unknown person. The third and ninth butts produced non reportable DNA profiles.[552] That is, DNA was detected but it was not above PathWest's reportable threshold. From the fifth butt a mixed DNA profile with two contributors was obtained. A contributor identified within this mixed DNA profile matched Bradley Hammond's reference DNA profile. It was greater than 100 billion in favour of him and an unknown person being a contributor to that DNA evidence than two unknown people being the contributors. There was not enough DNA from the second person for PathWest to make any further interpretation.

484 The seventh butt produced a mixed DNA profile with two contributors. A contributor identified within this mixed DNA profile matched Ms Catherine Edwards' reference DNA profile. It was greater than 100 billion in favour of her and an unknown person being a contributor to that DNA evidence than two unknown people being the contributors. The eighth butt produced a mixed DNA profile consistent with having come from two people. There was a male contributor identified within that mixed DNA profile, but that person's DNA profile is not on the databases available to PathWest.[553]

485 The eleventh and seventeenth butts produced mixed DNA profiles with two contributors. A contributor identified within this mixed DNA profile matched Mr Nathan McConnell's reference DNA profile. The fourteenth and fifteenth butts produced mixed DNA profiles from two contributors. A contributor identified within this mixed DNA profile matched Mr Phillip McConnell's reference DNA profile. It was greater than 100 billion in favour of him and an unknown person being a contributor to that DNA evidence than two unknown people being the contributors. There was not enough DNA from the second person for PathWest to make any further interpretation.[554]

486 Consequently, the tests conducted on the contents of the ashtrays did not produce any evidence which supported the proposition that Ms Dodd or the accused had been in Mr McConnell's ute.[555] The results obtained confirmed other evidence that Mr McConnell, his two sons, Bradley Hammond and Ms Edwards had been in the ute at some time.

487 There were other items in the ute such as sunglasses, cassette tapes and tools, which the officers inspected but did not collect. Lastly, the officers lifted three fingerprints from the ute.[556] These fingerprint lifters are not in evidence and apparently cannot be found.[557]

488 At some point in the examination of the ute, the officers examined the indicators and noted that they were operational.[558]

489 The officers also completed an exhibit list at the time they collected the exhibits. The original exhibit list has been lost.[559] There is a photocopy of the original exhibit list in evidence.[560] The original exhibit list had all of the exhibits seized by the officers from Mr McConnell's recorded on it, other than the car seat cover. I know that because the photocopy which is in evidence has written on it in original blue pen the details of the seat cover at the end of the list of other exhibits seized by Sergeant Davison. Sergeant Davison could not recall why the car seat cover was not in its proper place at the start of the list but he thought that it may have been because the package containing the car seat cover was put into the police car, presumably before the exhibit list was commenced, and forgotten about until later on 6 August 1999.

Recording and storage of exhibits seized from Mr McConnell's ute August 1999

490 The officers took the exhibits seized from Mr McConnell's ute back to Moora police station. One of the officers, probably Senior Constable Elliott, then transferred the information from the exhibit list into the Western Australian Police Property Tracing System (PTS), which was an electronic database.[561] PTS generated a unique number being 1999477205 for all the exhibits seized from Mr McConnell's ute. The finger print lifters were not recorded in PTS. This was the practice in 1999.[562]

491 Senior Constable Elliott did not initially include the seat cover in PTS. Again, this appears to have been an oversight, which was perhaps due to Senior Constable Elliott using the original exhibit list to create the PTS entries.[563] There are also different versions created of another internal police document relating to the search of Mr McConnell's ute. The document is entitled 'Forensic Division Crime Scene Report Face Sheet'. The different versions appear to have been completed with different information. One version does not have the seat cover recorded on it. I also take into account that the Operation Bluegum original forensic file is not in evidence and cannot be located.[564]

492 After hearing the oral evidence of Sergeant Davison and Senior Constable Elliot and after examining the video, photographs, printouts from the electronic records, the car seat and its bag, I am satisfied that there was nothing fraudulent or deliberate in the omission of the car seat cover from the original exhibit list or the initial entry onto PTS. Neither do those omissions cause me doubt that the car seat cover from Mr McConnell's ute was seized on 6 August 1999 by Sergeant Davison and Senior Constable Elliott and that the cover which was examined by Ms Horner in 2015 and which is in evidence is the seat cover which was on the seat of Mr McConnell's ute on 29 July 1999.

493 Sergeant Davison believes that the omission to record the seat cover on PTS was discovered and corrected on 6 August 1999. Senior Constable Elliott testified that the car seat cover was not recorded on PTS until 13 August 1999. He based his evidence on a PTS Property Receipt Report dated 13 August 1999[565] which includes all the exhibits, including the car seat cover, seized by the officers from Mr McConnell's ute on 6 August 1999.[566] In re‑examination Senior Constable Elliott contradicted himself and said that he was not able to say on which date the car seat cover was added to the PTS system and all that the PTS property receipt dated 13 August 1999 showed was that Detective Shane Graham had accessed the PTS record of these exhibits on that date.[567]

494 I believe that Sergeant Davison is correct because the white adhesive label on the bag containing the car seat cover has written on it in Sergeant Davison's handwriting the PTS number for all of the exhibits and it is dated 6 August 1999. It seems unlikely that this would have been written on the item unless it had been entered into PTS on that date. Sergeant Davison was certain that he did not have anything more to do with the exhibits once he returned to Perth that same day.

495 For the same reasons, I reject the accused's submission that the blue writing adding the seat cover to the exhibit list was not added in 1999 and that it is a later fabrication. The PTS record shows that the exhibit list had been inputted correctly, including the seat cover, by 13 August 1999. I find that the handwritten exhibit list was completed on 6 August 1999.

496 I am also mindful of the evidence that on 9 August 1999 the exhibits were received at the secure[568] permanent holding area for exhibits, which was then on the ground floor of Police Headquarters at 2 Adelaide Terrace, Perth.[569] That area was then called the Forensic Exhibits Office.[570] It was renamed the DNA Exhibits Coordination Unit (DECU) in 2002.[571] I will refer to it as DECU whether I am referring to it before or after 2002. The exhibits would not have been accepted at DECU unless they each had been entered into PTS.[572] This evidence tends to prove that the omission of the car seat cover was discovered and corrected on 6 August 1999. Whatever is the situation, the omission of the seat cover from the handwritten exhibit list and the electronic record on PTS was corrected within a week of it being seized.

497 At the Moora Police Station Sergeant Davison wrote the details of the contents of the three yellow top containers containing the vacuumings and the seat cover onto individual white adhesive forensic exhibit labels and stuck the labels to the bags containing those exhibits.

498 The officers took the exhibits from Mr McConnell's ute back to Perth that day, which was a Friday. By the time they arrived back in Perth, DECU would have been closed for the week.[573] Over the weekend, the exhibits were probably stored in a secure room for the temporary holding of exhibits.[574]

499 On Monday, 9 August 1999, Senior Constable Elliott delivered the swabs AE40 ‑ AE45 and a control sample swab AE39 to PathWest for analysis. He testified that this would have been at the request of officers from the Major Crime Squad or the relevant forensic liaison officer. The swabs would have been placed in secure storage at PathWest.[575]

500 Senior Constable Elliott proffered the opinion that because there were many different types of examinations and tests that could be done on the car seat cover, there was a need for the Operation Bluegum investigative team to discuss and determine where it should be sent and what should be done with it.[576] As an officer who worked on the investigation for a short period of time he would not be the officer to make those decisions.[577] I accept that this is a logical deduction to make but the state of the evidence does not enable me to make a finding as to why the car seat cover was not sent for examination at that time.

501 On 9 August 1999, Senior Constable Elliott electronically transferred on PTS the remaining items seized from Mr McConnell's ute on PTS from himself to DECU. He then delivered them to Constable Coleman at DECU.[578] Constable Coleman would not have accepted the items unless they were securely packaged and had exhibit tape on them.[579] PTS recorded that the exhibits were stored in a particular location at DECU, so that they could be located at a later date.[580]

502 The delivery to DECU on 9 August 1999 of the vacuumings from the passenger footwell and the seat cover is the last movement of those items which is recorded on PTS.

503 In 2002 or 2003 the WA police transitioned from PTS to a new electronic case management system called the Incident Management System (IMS). After about 2006[581] officers could search PTS for information about exhibits but no new information could be entered onto PTS. After PTS was decommissioned it was not possible to record on an electronic case management system used by WA police the movement of an exhibit until an electronic record for the item was created on IMS.[582]

504 A short time after the police completed their examination of Mr McConnell's ute, it was returned to Mr McConnell.

505 In 2006 DECU moved from the then Police Headquarters to a new forensic building in Midland and the exhibits previously held at Police Headquarters were moved to Midland. Exhibits officers gathered all the exhibits and placed them into specially built crates, which were then placed into a truck, like a removalist truck. The trucks were sealed and an exhibits officer travelled with the trucks to Midland. The crates were unloaded at the Midland facility and taken to what in 2009 or 2010 became known as the Exhibits Management Unit (EMU), [583] where the crates were unloaded and the exhibits were re‑stored. The Midland facility still exists as EMU and it stores items required for forensic analysis.[584]

506 EMU is in a gated complex. It has a manned security area. There is electronically controlled access into the building, controlled access into EMU and controlled access in the basement where the exhibits are stored. EMU is monitored by CCTV.[585] However there are no records of who accessed the storage area in EMU between 2006 and 2009.[586]

507 There was also a WA police exhibit storage facility in Maylands between January 2008 and July 2009. The Maylands facility was used for the storage of physical items.[587]

508 Inspector Lysle Cubbage, who has been a police officer since 1980 and is the current Inspector attached to the Property Management Division,[588] gave evidence that he understood that the movements of exhibits from Police Headquarters to Midland were recorded on PTS before it was decommissioned.[589] That is not consistent with the evidence in this case because PTS was decommissioned before the move took place.

509 There is no record on PTS, IMS or in evidence about the whereabouts or movements of the yellow top containers containing the vacuumings and the seat cover between them being lodged at DECU in 1999 and when they were transferred to IMS in 2011. I infer that the vacuumings from the passenger footwell and the seat cover were moved from Police Headquarters to the Midland facility in about 2006, where they remained until they were transported to Belmont, as I later describe.

IMS incident report created for Operation Bluegum October 2010

510 On 21 October 2010 Senior Sergeant Philip Ward, in the course of his duties, created a master incident report numbered 21101012009962 for Operation Bluegum. Reading the number from left to right it is made up of the day, the month, the last two digits of the year and the time on the 24 hour clock that the master incident report was created. This information was followed by Senior Sergeant Ward's four digit regimental number.[590] This was the first time an IMS number had been created for Operation Bluegum. Senior Sergeant Ward entered some basic information relating to the Operation Bluegum into IMS but he did not enter any Operation Bluegum exhibits from PTS onto IMS and he did not know where the Operation Bluegum exhibits were held.[591] The Special Crime Squad (SCS),[592] who were then responsible for investigating unsolved homicides and investigating the disappearance of missing persons who were presumed to have been killed,[593] were using another electronic investigation system called Viper.[594] I do not know what information, if any, was on Viper about the exhibits seized from Mr McConnell's ute.

511 In around 2005 then First Class Sergeant Colynn Rowe started work with two other men on the PTS conversion project to place exhibits still held by WA police on PTS onto IMS. Sergeant Rowe, who retired in 2011, estimated that there were about 800,000 exhibits recorded on PTS which had to be either retained and placed onto IMS or disposed of. When the PTS conversion project commenced, DECU was situated in Midland. Sergeant Rowe and his assistants worked in separate premises at the back of the facility.

512 In the first half of 2009 the WA Police created a business area called the Property (Receival) and Exhibit Storage Section (PRESS). In July 2009 PRESS moved to a storage facility in Belmont, which is a larger version of the Midland premises.[595] PRESS in Belmont includes office areas and a secure warehouse facility protected by CCTV cameras and a secure card access system. It is used for the long term storage of exhibits.[596] A visitors book records who, from outside of PRESS, is given access to PRESS.[597]

513 After PRESS was created and moved to Belmont in mid‑2009, the officers working on the PTS conversion project continued their work in temporary premises at the back of PRESS in Belmont.[598]

514 Sergeant Rowe said that he saw the crates of exhibits he was to work on when they were in Midland, before they were transported to PRESS in Belmont.[599] However after mid‑2009 they were transported from Midland to Belmont[600] and they were stored on one of the main stacks within the PRESS warehouse. They were sealed in large crates with lids.[601] He said that they were sealed with tape similar to that used on vegetable boxes.[602] Looking at the photographs in evidence, a similar sort of tape is still in use at PRESS.

515 The sealed crates were brought to a locked cage within PRESS used by the PTS conversion team. If the conversion process took a number of days, the exhibits were stored each night in that enclosure.[603]

516 From there, Sergeant Rowe or a member of his team would break the seal to the crate, by cutting the tape with scissors,[604] and take some of the exhibits from a crate into their premises.[605] The first thing they did was check that all the items that were listed on PTS under the PTS receipt number written on the exhibits were present and that they were properly packaged and sealed. They did not inspect the items inside the packages. They then added the exhibits to IMS. Once that was done, the exhibits were repackaged into a package similar to the one in which they had come out of the crate. The package would be labelled with the IMS incident number and the items contained in that package.[606] Sergeant Rowe then transferred the exhibits electronically on IMS to PRESS.[607] Sergeant Rowe was required to walk with the package from their temporary premises to PRESS, ring a bell to obtain entry to the office in PRESS and to present the exhibits for formal receipt by it.

517 Sergeant Rowe said that the exhibits which he worked on were usually received by Mr Ray Whitehead, a public servant who worked for the police at PRESS. Mr Whitehead would check that the exhibits had been transferred electronically to PRESS. Mr Whitehead would check that he had received all the items which Sergeant Rowe had transferred electronically and that their evidence tape seals were intact.[608] He could not have done that if the exhibits had been repackaged together in another larger package. Therefore, I infer that at this point the exhibits were in individual bags.

518 Sergeant Rowe said that if an exhibit was not adequately packaged and sealed when he first inspected it, then he would have telephoned officers at EMU in Midland. However he then went on to say that in the time he was working at PRESS he did not find a package which was not intact and sealed properly.[609]

519 If Sergeant Rowe identified the exhibits as being subject to the WA Police Serious Crime Exhibit Retention Management (SCERM) policy, Mr Whitehead knew that the exhibits had to be placed in section 9 of the PRESS warehouse, but not in which crate the exhibits were to be stored.[610] Section 9 was the area reserved within PRESS for exhibits related to serious crime. Consequently, Mr Whitehead would electronically give the exhibits his location whilst they were in transit.

520 Mr Whitehead then walked into the PRESS warehouse and found space to put the exhibits. He then went back into his office, and electronically transferred the exhibits to that location, which was designated by a unique number. He then placed the exhibits in a large open crate within that area. When a crate was full of exhibits from different cases it was sealed with a lid and tape.[611] Even when a crate was partially full, it was secured with tape.[612] When a crate was being filled it was kept on the floor of the warehouse but when it was full it was stacked with other crates, one on top of another.[613] A forklift or similar is required to lift and move the crates. The PRESS warehouse at Belmont is not air conditioned and so is subject to temperature variations, in accordance with the seasons.[614]

521 Mr Whitehead and Mr Francis Whitford, the current acting officer in charge of PRESS, were able to describe what the process from 2008 involved if a police officer wished to inspect or take an exhibit. However they were not aware of earlier procedures because neither of them was employed by the WA police prior to that year.

522 The procedure is and was that police officers are encouraged to email PRESS to request access to an item before they attend the facility. When they attend, if the item is easily identified and it is transportable, the officer/s sign the visitor's book, stay in the PRESS office area and the item is brought to them. In the unusual situation that an officer needs to access the PRESS warehouse to find and/or inspect the item in situ, they are supervised by PRESS staff. Usually, they require a PRESS staff member to assist them to locate and access the crate in which exhibits are stored. A PRESS staff member usually remains with them whilst they inspect an item in the warehouse.[615] An exhibit as large as the seat cover would not be examined on the floor of the warehouse. The interior and exterior of PRESS is under CCTV surveillance.

523 If an officer takes an exhibit away from PRESS, Mr Whitehead or another PRESS staff member will electronically record the movement on IMS. If an officer inspects an item at PRESS, it may not be transferred to him or her on IMS but if they return it for storage, Mr Whitehead or another PRESS staff member will ensure that it has been resealed with evidence tape.[616]

524 On 8 August 2011 Sergeant Rowe commenced converting the electronic record of the 14 items seized from Mr McConnell's ute on 6 August 1999 from PTS to IMS. He said that Operation Bluegum 'was one of the packages' he pulled out on 8 August 2011. That comment sounds as if all of the exhibits he looked at on that date from Operation Bluegum were packaged in one bag or container of some sort and that there was something on the package which identified the contents as relating to Operation Bluegum.[617] When Sergeant Rowe looked on IMS he saw the master incident report number for Operation Bluegum which Senior Sergeant Ward had created in 2010. He then created an IMS entry for each of the 14 items on PTS 1999477205. The vacuumings from the passenger footwell was given the IMS reference 21101012009962/0044 and the seat cover was given the IMS reference 21101012009962/0048. The IMS print out for those two items states that occurred on 8 August 2011 at 10.56 am but the notes section records a date and time of 10 August 2011 at 8.21 am for the vacuumings and 8.22 am for the seat cover.

525 The IMS details for each item record that they were items from PTS 1999477205 and that they were 'conversion under SCERM project'. SCERM policy required that items related to serious crime be stored permanently or for a more limited time.[618]

526 On 15 August 2011 Mr Whitehead received the Operation Bluegum exhibits from Sergeant Rowe, including the yellow top container containing the vacuumings from the passenger footwell and the seat cover. Later that same day he transferred the exhibits to a specific location within PRESS. IMS records that they were received for 'secure storage'.[619] It was the practice for SCERM exhibits to be received for 'secure storage'.[620] The crate in which they were placed was on ground level.[621] Particular storage locations identified on IMS could not be easily found within PRESS, except by someone who was familiar with the layout of the PRESS warehouse.[622]

527 On 31 October 2012 then auxiliary police officer, Mr Craig Scott, was working on a SCERM project. A SCERM project is when the police examine their SCERM holdings and conduct an audit to make sure that an exhibit is a SCERM exhibit, that it has value and that it is being stored correctly in accordance with the WA police SCERM policy. Inspector Cubbage described it as an audit or stocktake.[623]

528 As part of that project, Mr Scott recorded on IMS that the vacuumings of the front passenger footwell and seat cover were moved from the location they were put into by Mr Whitehead to another area called 'PTSREVIEW'.[624] Mr Scott testified that it was his job to look at exhibits related to serious crimes. If an offender had been convicted and sentenced, he dealt with the exhibits in one manner, which is not relevant to this case. If an offender had not been convicted, as in the case of Operation Bluegum exhibits, he put the exhibits into a crate marked PTSREVIEW. Those crates were put aside for later review by other officers. Mr Scott could not recall whether he sealed the crates containing the PTSREVIEW exhibits.[625] Mr Scott performed these tasks within PRESS in Belmont.[626]

529 There are no other movements of these Operation Bluegum exhibits recorded on IMS until 30 August 2013.

530 Part of Mr Scott's job was to look for items which were not sealed and to secure them in new bags, with clear packing tape and new evidence tape.[627] During his work on the SCERM project he found several bags which had become unsealed. He found that brown packing tape had delaminated, in the sense that it was no longer sticky. Evidence tape put across the brown packing tape which had delaminated was sometimes broken.[628]

531 There is no evidence that Mr Scott resealed the bag in which the seat cover was contained. The fact that in 2013 the only sealing material on the bag was old brown packing tape, strongly suggests that he did not do so.

532 Mr Whitford also said that he had seen sealing tape which had delaminated and associated with it was broken evidence tape. Time and storage conditions were contributing factors. In Mr Scott's opinion brown packing tape was more likely to lose its stickiness, whereas Mr Whitford thought that clear sticking tape was more prone to doing so.[629]

533 Operation Supra was the name given to an SCS operation in 2013 to identify the location of, to catalogue and to co‑locate the exhibits held at PRESS which related to investigations which the SCS may carry out into old, unsolved cases.[630]

534 Operation Supra was located in a separate part of the PRESS warehouse. PRESS officers and staff were not permitted in the area. Parts of PRESS and Operation Supra's work were recorded using CCTV.[631] If Operation Supra officers wanted a particular crate from PRESS they would ask Mr Whitehead or another PRESS staff member to get it. They would do as requested and drop the crate at the boundary of the Operation Supra area. Operation Supra officers would move it on a trolley inside the Operation Supra area.[632]

535 Operation Supra involved 15 ‑ 20 people who worked from May to August 2013 and inspected 163 crates of exhibits at PRESS. Police officers who were seconded to work on Operation Supra had swipe cards which enabled them to access the PRESS carpark and warehouse without signing in as a visitor.[633]

536 Once a crate of exhibits was delivered to the Operation Supra area, either Senior Sergeant George Paton or Sergeant Rodney Harris would cut the strapping holding its lid on. Sergeant Harris did not recall any crates which were not strapped.[634] An exhibit bag within a crate may have had an identifier on it such as a PTS number, a PathWest number, a ChemCentre number or an operation name. Alternatively, it may have had no identifier on it. Operation Supra officers used whatever information they had to identify the exhibits and the investigation to which they were connected.[635] Within a crate there may be exhibits from a number of different investigations.[636]

537 Sergeant Harris first testified that all of the exhibits he dealt with in Operation Supra were recorded on PTS and had not been converted to IMS.[637] However this was clearly not the case as at least some of the Operation Bluegum exhibits, including the seat cover and the vacuumings had been recorded on IMS by Sergeant Rowe in 2011. When the IMS records for the car seat cover where brought to his attention, Sergeant Harris acknowledged that Operation Supra did find bags within the PTS crates that had had been earlier converted to IMS.[638]

538 Members of Operation Supra would examine and record the contents of the crates. If a number of items had to be taken out of a bag or container to be examined or identified they would be taken to what was called 'the clean room' where officers examined the exhibits under cleaner conditions. The officers in the clean room wore disposal booties, overalls, masks and caps. The surface on which they worked was clean and covered with clean brown paper before each bag of exhibits was examined. The work in the clean room was recorded on a CCTV camera, as was the area where the officers originally examined the items removed from the crates.

539 The exhibits which were taken into the clean room to examine included bags of multiple exhibits when it could not be ascertained what was in the bag without opening it. However the officers did not examine every item. If a bag said that it contained an item and it was of the right dimensions and feel to contain that item, Operation Supra officers did not open the bag to examine it.

540 Other exhibits which were taken into the clean room to examine were bags which had burst, bags which had deteriorated and bags on which the tape sealing the bag had broken or come away. In some bags the tape sealing the bag had come off. Sergeant Harris described that in some cases the tape had lost its adhesive quality and had become brittle.[639] Senior Constable Claire Mustafa, who worked on Operation Supra for about eight months, said that in respect of exhibits from around 1999, it was common for tape to have lifted.[640] She estimated that in working on Operation Supra she had seen hundreds of bags where the tape sealing the bag had lifted.[641] In 2015 she took some photographs of two bags of exhibits packaged in 2002 where the brown packing tape sealing the bag had lifted. On one bag, the evidence tape was also broken.[642]

541 Once Operation Supra officers had finished examining and cataloguing an exhibit, its officers put it into a crate containing exhibits related to different categories of offences, namely sexual assaults, SCS cases and homicides. PRESS staff put the lids on the crates, strapped them closed, and determined where they were to be stored.[643] Operation Supra had its own electronic database called Objective on which officers recorded information about the exhibits and the crate into which they were placed.[644]

542 Operation Supra officers gave weekly briefings to Detective Inspector Casey Prins, the then officer in charge of SCS, about the work of Operation Supra. Sergeant Harris said that the SCS officers did not know what was in the crates that were delivered to Operation Supra for examination and so the Operation Supra officers regarded the items as 'lost', until they examined them.[645] However the car seat cover and vacuumings and some other Operation Bluegum exhibits had been placed onto IMS by Sergeant Rowe in 2011. From August 2011, someone with a working knowledge of IMS could have found those items on the IMS database and their location at PRESS. However unless that person worked at PRESS, they would not have been able to link the description of the location of the exhibits on IMS with a location of a crate within which the exhibits were stored at PRESS.[646] They would not then have been able to access the crate without the assistance of an officer from PRESS.

543 Detective Senior Constable Christopher Rainford, then attached to the SCS, was a police officer assigned to Operation Supra whose job it was to remove bags of exhibits from crates and examine them. At about 8.00 am on 14 May 2013, Detective Senior Constable Rainford picked up a hessian sack out of the top of a crate at PRESS. The crate was full of packages. Detective Senior Constable Rainford's actions with the bag were recorded on CCTV.

544 The CCTV footage shows that the hessian sack had a number of tags tied onto the bag with the same string which secured the top of the bag. There was also an A4 size sheet of paper,[647] which seemed to be in plastic sleeve, attached to the top of the bag. There were six large cardboard luggage tags tied to the bag. On one side of each luggage tag, someone had written a different PTS property receipt number in black felt pen. On one tag the PTS property receipt number for the items taken during the examination of Mr McConnell's ute was written. On the other side of each tag, a different person[648] had written the IMS number for Operation Bluegum in blue felt pen.[649] The only other label on the hessian bag was an adhesive label which had a SCERM review date of '2036' written on it in blue felt pen.

545 As I will go on to describe, the hessian sack contained a number of bags and in some of these bags were the exhibits seized from Mr McConnell's ute, including the car seat cover and the vacuumings. There is no direct evidence as to how the exhibits came to be in the hessian bag. That is, no witness gave evidence that he or she had put them in to the hessian bag.

546 The State says that I should infer that Mr Scott put them into the hessian bag because the evidence of Sergeant Rowe is not consistent with them being in the bag when he examined the exhibits and Mr Scott is the only person who handled the exhibits between 2011 and when Detective Senior Constable Rainford located them in the hessian bag. It also draws my attention to the adhesive label which had a SCERM review date of '2036' written on it in blue felt pen stuck onto the outside of the hessian bag. It says that this is consistent with Mr Scott putting the exhibits into the hessian bag and sticking the label onto it as part of the SCERM review he was conducting. It is a mystery to me why neither Sergeant Rowe nor Mr Scott were questioned about the hessian bag.

547 The accused submits that it would be speculation to conclude that Mr Scott bagged the exhibits together in the hessian bag.

548 There is an available inference that it was Mr Scott who bagged the exhibits together into the hessian bag. However there is insufficient evidence to enable me to conclude definitely that it was he who did that. All I know is that they were placed into the hessian bag between 15 August 2011 and 14 May 2013. What is clear is that whilst the seat cover and vacuumings were in the hessian bag and it was tied up, it was not possible to access the individual exhibit bags or the exhibits themselves. However it would have been possible for someone to cut any existing tie on the hessian bag, and thereby access its contents, and to tie it up with twine without anyone being the wiser.

549 The accused also submits that it has not been explained how the Operation Bluegum exhibits, which had been entered on IMS, ended up in a crate on top of other exhibits which had not been entered onto IMS.

550 I am not sure of the status of all the other items in the crate, but I do not think that the presence of the Operation Bluegum exhibits in that crate is unexplained. Mr Scott testified that during his SCERM review, if an offender had not been convicted of an offence for which the exhibits had been collected, as in the case of Operation Bluegum exhibits, he put the relevant exhibits into a crate marked PTSREVIEW. Those crates were put aside for later review by other officers, which turned out to be Operation Supra. Mr Scott did not state that the only exhibits which he placed in such crates were not on IMS. Thus PTSREVIEW crates could contain a mixture of exhibits which were on PTS or IMS. The fact the exhibits were on top of the particular crate they were in, is not significant. The evidence is that the crate was sealed before it was opened for Operation Supra.[650]

551 On a clean double sided form which is entitled 'PRES Items for Destruction/Retention' (the Operation Supra form) Detective Senior Constable Rainford wrote down various pieces of information from the tags and A4 sheet(s). Unfortunately the A4 sheet(s) are not in evidence, but the Operation Supra form he completed by reading off the sheet/s is in evidence.[651] The information he put onto the Operation Supra form included that the bag's contents related to Hayley Dodd which was a missing person enquiry from July 1999 and that she was believed to have been murdered. Detective Senior Constable Rainford then taped the Operation Supra form to the hessian bag and passed it to Senior Constable Lee‑Anne Sadlier and Senior Constable Mustafa to inspect the contents of the bag in the clean room.[652]

552 At approximately 8.08 am on the same day Senior Constables Sadlier and Mustafa commenced examining the contents of the hessian bag in the clean room.[653] They were attired as described previously. They cleaned the table they were working on and laid out a clean piece of brown paper. They cut off the brown string which held the tags on the bag and secured it closed. Senior Constable Mustafa commenced to remove items from it. Senior Constable Sadlier wrote an itemised list of the contents of the bag on the Operation Supra form. When it was full she continued the list on a separate sheet of paper.

553 At approximately 8.28 am Senior Constable Sadlier removed from the hessian bag a brown bag, containing four small plastic bags. All four plastic bags appeared to be sealed with evidence tape but the paper bag was sealed only with sticky tape.[654] It had '1999 477205' in black felt pen written on it but nothing to identify the contents of the bag, which was why Senior Constable Mustafa opened the bag and removed its contents. One of the plastic bags contained AE51, being debris from Mr McConnell's ute, another contained seven swabs from the ute, the third contained the three yellow top containers of vacuumings from the ute and the fourth contained two yellow top containers being the contents of the ute's ashtrays. Those items were placed back into the paper bag from which they had come. That bag was not resealed.

554 At about 8.30 am Senior Constable Mustafa removed a reddish‑brown coloured paper bag from the hessian bag. It appeared to be difficult to remove from the hessian bag due to its size. Both officers manoeuvred it so it could be pulled out of the hessian bag. It is possible that in that process part of the tape securing the bag was loosened but I make no finding in that regard. Senior Constable Mustafa laid the bag on the examination table.

555 It is apparent from looking at the CCTV footage that there is a bulky item in the bag and, having regard to all of the evidence, I am satisfied that the seat cover from Mr McConnell's ute was in the bag and that the bag was the original bag into which Sergeant Davison put the seat cover. The folded flap nearly reached the bottom of the bag. In the middle of the folded flap '1999 477205' had been written in black felt pen. Underneath that, also on the folded flap, was the original white adhesive exhibit label which had been completed by Sergeant Davison. From viewing only the CCTV footage, it is not possible to see what was written, if anything, on the reverse of the bag.

556 Along the lip of the folded flap was a line of brown packing tape. It may have been one or more pieces of packing tape. That is not clear from the CCTV footage. A piece of evidence tape can be seen running transversely across the packing tape. It starts on the top portion of the bag and runs across the packing tape. It is not clear whether it runs over or under the tape. It is not visible on the lower portion of the bag. That is, it does not run over the lip of the folded flap and stick the folded flap of the bag to the lower portion of the bag.

557 Having regard to the bag as it is now in evidence,[655] what is apparent is that the folded flap was folded over further than when Sergeant Davison had sealed it originally. The evidence seal and brown packing tape he had put on the bag had been broken and the bag had been resealed using more brown packing tape, but no evidence tape. When that was done the folded flap had been folded over so that more of the top portion of the bag was folded over the bottom portion of the bag than it had been when Sergeant Davison sealed the bag. This meant that the portion of Sergeant Davison's evidence tape which had been and is still on the bottom portion of the bag was obscured by the folded flap. There was a piece of brown packing tape which had been placed over Sergeant Davison's brown packaging and evidence tape on the folded flap. This was not done to obscure the evidence tape, but rather to secure the folded flap in its new position.

558 None of the packaging and sealing of the bag appeared to have been done recently. Even now, there are still obvious creases in the bag where it was folded when Senior Constable Mustafa looked at it. When I lined up the top and bottom portions of Sergeant Davison's evidence tape, the folded flap had no creases in it at that position and it did not fold easily in that position. This indicates to me that the bag had been folded and sealed in the position in which it was on 14 May 2013 for a long time and it had not be folded and sealed in the original position for long enough for a marked crease to be made in that position.

559 Both Sergeant Davison's original brown packing tape and the second line of brown packing tape which been applied after Sergeant Davison's seal was broken, are still on the lip of the top portion of the bag. Both layers of tape appear old and they both have lost their adhesive qualities.

560 This is a change from the situation as it was on 14 May 2013. On the CCTV footage, Senior Constable Mustafa is seen lifting up the centre of the lip of the folded flap. The packing tape was not adhering to the majority of the lower half of the bag. When Senior Constable Mustafa put her hand in between the folded flap and lower portion of the bag, the folded flap was not stuck to the lower portion on the right‑hand side and on the middle of the bag. However on the far left‑hand side of the lip the packing tape was still adhering to the lower portion of the bag. This meant that when she pulled on the lip of the folded flap of the bag it did not come away entirely from the lower portion of the bag. I conclude that in the condition that the bag was in at that time, it would not have been possible to open the bag and access its contents.

561 Senior Constable Mustafa pressed down on the bag to satisfy herself that the description of its contents was consistent with the feel of the bag and then moved it to the left on the table. She then got out another bag from the hessian sack.

562 The next bag Senior Constable Mustafa removed from the hessian bag was a newer looking brown paper bag containing a number of other exhibits either in paper or plastic bags. That bag looked very much like the one containing the vacuumings and it was sealed with clear sticky tape only, without any evidence seal. There was at least one paper bag in it which did not appear to be sealed with evidence tape.

563 After cataloguing all the items in the hessian bag, Senior Constables Sadlier and Mustafa put the individual bags of exhibits into two large paper bags. They sealed them with clear packing tape, affixed a white adhesive label which contained the date and Senior Constable Sadlier's initials, wrote 'SCS HAYLEY DODD' on the bags and sealed them with evidence tape.[656] The exhibits were fairly tightly packed into the bags. This would have prevented them from moving around inside the larger bags but it could also have resulted in them being squashed and pressure being placed on their seals. In any event, the accused accepts that after the seat cover and its bag were repackaged under the CCTV surveillance on 14 May 2013, there was no opportunity for anything to be planted in the bag containing the seat cover.[657]

564 Since Ms Dodd's disappearance various detectives have been responsible for investigating the disappearance of Ms Dodd. In 2007, Senior Sergeant Wild completed a report concerning her disappearance to the coroner. No person had been charged with any offence relating to Ms Dodd.

565 Following him, Detective Sergeant Adam Matson was the investigating officer for Operation Bluegum. Then in early 2009, Detective Sergeant Geoffrey Buck took over the role as investigating officer. He left the SCS in September 2012.

566 Whilst Detective Sergeant Buck was the investigating officer, he prepared an addendum dated 28 May 2013 to the report to the coroner.[658] The conclusion in the addendum report was that despite continued investigation by SCS officers into Ms Dodd's disappearance, there had been no significant developments.[659]

567 Detective Sergeant Buck acknowledged that Mrs Dodd told the police at various stages that she was unhappy with how she thought the investigation was going, and that people were not being interviewed how she would like them to be.[660] Mrs Dodd was keen for a coronial enquiry to be held and the police welcomed such an enquiry.[661] Detective Sergeant Buck testified that he had 'no concerns' about allegations that Mrs Dodd may have made at a coronial enquiry about the police investigation into the disappearance of Ms Dodd.[662]

568 Detective Sergeant Darren Bethell, who commenced work at the SCS in October 2012, was appointed the investigating officer of Operation Bluegum shortly afterwards.[663] He was supervised by Detective Senior Sergeant Darryl Cox.[664]

569 From the end of 2012 to August 2013 Detective Sergeant Bethell familiarised himself with the Operation Bluegum file.[665] He read a letter which had been received by the SCS in 2007 which advised it of the accused's conviction for the propensity offence. He noted that it 'had been written off', on the bases that the accused may be looked at later if there was a review of Operation Bluegum and the initial enquiry had concluded that the accused had an alibi. Detective Sergeant Bethell looked at the material on the file and formed the view that the accused did not have an alibi.[666]

570 In July 2013 the coronial enquiry was listed to commence on 14 January 2014.[667]

571 On 23 July 2013 Detective Senior Sergeant Cox and Detective Sergeant Bethell went to PRESS on their way back to the SCS office from conducting unrelated enquiries in Forrestfield.[668] Detective Senior Sergeant Cox went there in his role as acting inspector of the SCS because a number of SCS staff were seconded to PRESS for Operation Supra. He went to look at the resources of the SCS officers, the conditions they were working under and whether there were any concerns or issues with the timeframe given for the operation. He spoke to staff in the office area from which Operation Supra was running. Detective Sergeant Bethell went because he had been conducting the unrelated investigation with Detective Senior Sergeant Cox at Forrestfield earlier that day. Neither officer went into the PRESS storage area.[669] Detective Senior Sergeant Cox's police journal records that he went there at 10.30 am and returned to the office at 11.40 am. Sergeant Paton used his electronic pass to open the secure doors to the facility for them to enter, so their visit was not recorded in a visitors' register. That is the only time Detective Senior Sergeant Cox and Detective Sergeant Bethell have visited PRESS at Belmont.[670]

572 Detective Sergeant Bethell did not know where the Operation Bluegum exhibits were but he knew that they were at PRESS. Initially he gave evidence that they were at PRESS in Maylands. He then said that was his mistake because he had been thinking about the old PRESS at Maylands.[671]

573 On 26 August 2013 at 9.31 am Detective Sergeant Bethell sent an email to Inspector Casey Prins and Detective Senior Sergeant Cox to the effect that he had received information about the accused's conviction for the propensity offence. He noted that Mr McConnell's ute, which the accused had been driving, was examined 'with nil result'. He advised that he was going to make some further enquiries in relation to exhibits held by the police in relation to Operation Bluegum 'to see what material we may still have from the searches'. At 9.33 am, Detective Sergeant Bethell sent a copy of his email to Sergeant Paton and advised him that he was searching through files to see if the police had any exhibits relating to the accused.[672] Around the same time, he also discussed this issue with Detective Senior Sergeant Cox in person.[673]

574 On 27 August 2013 at 9.00 am Detective Sergeant Bethell had a meeting with Mr Laurence Webb, then a senior scientist at PathWest, about Operation Bluegum exhibits and their analysis. Detective Sergeant Bethell's notes of that meeting record discussing that Mr Webb was advised of the accused's details. The notes state that '[s]wabs' will be tested forthwith and results possible in two weeks. It notes that PathWest did not have a record of vacuumings from the vehicle (presumably Mr McConnell's ute) and that it was to be checked to see if they had been submitted (presumably to PathWest). There was no mention of the car seat cover in the notes.[674] It is not in evidence how Mr Webb knew about the car seat cover seized from Mr McConnell's ute or the vacuumings taken from the ute but it seems that he mentioned these to Detective Bethell.[675] Some officers at PathWest had access to IMS[676] and, as I have already noted, it would have been possible to find these items on IMS.

575 At 11.20 am that day Detective Sergeant Bethell sent an email to Mr Webb which said that the car seat cover and vacuumings had been located 'at Midland' and that they would be sent to him.[677]

576 The accused submits that Detective Sergeant Bethell made the mistake in the email of saying that the exhibits were at Midland, when they were at PRESS in Belmont. He says that Detective Sergeant Bethell slipped up because he was inadvertently referring to where he had, in fact, earlier located the exhibits at Midland.[678] The inference being that it was then that he had planted an earring in the seat cover which was subsequently found by Ms Horner at PathWest on 5 September 2013. There are a number of problems with this theory:

(1) the seat cover had been at PRESS in Belmont, since, at the latest, 2011 when Sergeant Rowe saw it and entered it into IMS;

(2) Detective Sergeant Bethell was not attached to SCS until October 2012 and he became the investigating officer for Operation Bluegum after that date;

(3) the bag containing the seat cover was put into a larger bag with other Operation Bluegum exhibits and sealed by Operation Supra officers in May 2013 at PRESS;

(4) it was not until August 2013 that Detective Sergeant Bethell learned of the accused's conviction for the propensity offence and actively started looking for exhibits from the 1999 search of Mr McConnell's ute which were still held by the police;

(5) between May and August 2013, the seat cover and the bag it was contained in were sealed in a larger bag, which was only opened by Sergeant Fisher under CCTV surveillance on 29 August 2013;

(6) Sergeant Fisher resealed the bag on that date and it was not reopened until Ms Horner at PathWest opened it, laid out the seat cover and saw the earring on 5 September 2013;

(7) the reference to Midland in the email to Mr Webb is not the only mistake that Detective Sergeant Bethell has made about the location of PRESS. In evidence he said that he thought that Operation Bluegum exhibits were at PRESS in Maylands.[679] It seems that Detective Sergeant Bethell has a blind spot in his brain about the location of PRESS, which perhaps is not surprising given that he did not regularly go there and over the time he has been a police officer, exhibits have been held at a number of different locations; and

(8) the accused suggests that Detective Sergeant Bethell would have been motivated to plant the earring by a desire to solve the mystery of Ms Dodd's disappearance in order to avoid potential embarrassment to the police force at the forthcoming coronial enquiry from exposure of the police's failure to do certain things in the course of the original investigation. It is not obvious to me that finding the earring 14 years after the seat cover had been seized would avoid such embarrassment. Whereas finding the exhibits, such as the seat cover, and having them examined, would show that the police had acted appropriately, but belatedly.

577 There is no evidence before me that Detective Sergeant Bethell had any interest in Operation Bluegum at a time when the Operation Bluegum exhibits were in Midland. Neither is there any evidence that Detective Sergeant Bethell had any particular interest in the accused's possible involvement in the disappearance of Ms Dodd until August 2013. By then the Operation Bluegum exhibits had been sealed in larger bags and there was no means by which Detective Sergeant Bethell, or anyone else, could access the seat cover.

578 It would make no sense for someone at an earlier time to plant the earring and then not arrange for the seat cover to be examined. Thus, whilst it is possible that someone opened the bag containing the seat cover and resealed it, I am satisfied that the earring was not planted in it.

579 On the morning of 27 August 2013 Detective Sergeant Bethell spoke to Sergeant Harris and asked him to check which Operation Bluegum exhibits, if any, were recorded in Objective, and specifically related to Mr McConnell's ute.[680] This was the first enquiry Detective Sergeant Bethell had made of Sergeant Harris about the Operation Bluegum exhibits.[681]

580 Sergeant Harris checked and at 2.08 pm, he sent an email to Senior Sergeant Paton which referred to Detective Sergeant Bethell's request and included a list of Operation Bluegum exhibits located by Operation Supra at PRESS.

581 The accused described the fact that these exhibits were found the next day to be 'amazing'.[682] I do not agree. By then they had been placed on IMS and reviewed by Operation Supra. They should have been, and it seems they were, easily identified by Sergeant Harris.

582 There were approximately 132 exhibits on the list. Sergeant Harris highlighted in yellow five exhibits which were identified on that list as coming from Mr McConnell's ute. These were described as:

Debris from vehicle DN735 - AE51

Swab vehicle DN735 x 7

Vacuuming YTC - DN735

Ashtray contents DN735 YTC x 2

Seat cover - AE38.

583 The first three items are described as being in bag 1 and the last two are described as being in bag 2. This is consistent with how the exhibits were seen to be repacked in the CCTV footage taken in May 2013. Sergeant Harris asked Senior Sergeant Paton to forward the information to Detective Sergeant Bethell. This was done at 2.16 pm the same day.[683]

584 On 29 August 2013 Senior Sergeant Paton asked Sergeant Gavin Fisher to locate the above exhibits from Mr McConnell's ute and take them to PathWest for examination. At that time Sergeant Fisher was a forensic officer attached to the SCS but seconded to work on Operation Supra.

585 On the same date, Sergeant Fisher went to an open crate at PRESS and removed the two bags which Senior Constables Mustafa and Sadlier had packed and sealed on 14 May 2013. The crate was still open because it had not yet been filled. Sergeant Fisher took the bags to an area within PRESS which was being used by Operation Supra and which was under CCTV surveillance. He opened the two large bags which Senior Constables Mustafa and Sadlier had sealed and removed from them the exhibits, including the bags containing the car seat cover and the vacuumings. Neither of the larger bags had been tampered with between when Senior Constables Mustafa and Sadlier had sealed them on 14 May 2013 and when Sergeant Fisher opened them on 29 August 2013.[684]

586 From bag one Sergeant Fisher removed the items relating to Mr McConnell's ute, including the plastic bag which contained the yellow top container, which in turn contained the vacuumings from the passenger footwell of Mr McConnell's ute. Sergeant Davison's evidence tape was still intact on that bag.[685] He put some of the exhibits into larger plastic clip‑seal bags and then put them back into the paper bag which they had been in. He set them to one side.

587 After repackaging and resealing the first large paper bag, Sergeant Fisher moved onto the second large paper bag which had been packed and sealed in May. When Sergeant Fisher removed the bag containing the car seat cover from the bag, the CCTV footage clearly shows, and Sergeant Fisher testified, that the brown packing tape which was supposed to secure the folded flap of the bag to the lower portion of the bag was not adhering to the lower portion of the bag at any point.[686] The only reasonable explanations for this are that the adhesive quality of the brown packing tape which had secured it had further deteriorated in the nearly four months since it was examined in May 2013 and/or the movement of the exhibit bag against other exhibit bags had caused it to dislodge.

588 Sergeant Fisher briefly attempted to line up the edges of Sergeant Davison's evidence tape. Consistent with my examination of the bag, the bag did not fold easily into that position. Sergeant Fisher looked into the bag and satisfied himself that it contained what looked like a seat cover. He then resealed the bag with clear packing tape which secured the folded flap to the lower portion of the bag in approximately the same position the second layer of packing tape had sealed the bag. He wrapped the tape around the bag so that there were two layers of clear packing tape on the front of the bag and one on the back. He then placed his evidence tape transversely across the clear tape on the front of the bag. He did that because the item was to be submitted to PathWest and PathWest would not accept it unless it was sealed.[687]

589 For evidence purposes, it would have been better if he had left the bag as he had found it and placed it into a new bag and sealed it. He then sealed the bag containing the vacuumings and other items with clear packing tape and placed his evidence tape on it.

590 On 16 June 2015 Sergeant Fisher went to PathWest and examined the paper bag which had contained the seat cover in 2013 and took photographs of it. His examination confirmed what I have determined from examining the bag, which is that at some point in time Sergeant Davison's evidence seal was broken and the brown packing tape he sealed the bag with was lifted, without leaving any of the tape on the lower portion of the bag. I do not know how or why the tape lifted or the seal broke. At a later time, another layer of brown packing tape was placed on the lip of the folded flap and over Sergeant Davison's layer of brown packing tape and evidence seal and sealed to the lower portion of the bag, but in a lower position on the lower portion of the bag than where Sergeant Davison had sealed it. Sergeant Fisher said that the second application of brown packing tape was a bit more tacky than the original tape, which was dry.[688] Now, both layers are dry. Other than that I did not discern from his evidence that the bag was in a significantly different condition than it is in today.

591 Sergeant Fisher is an experienced forensic officer who has seen many exhibits, both recently and historically, acquired by the police. He said that he and other forensic officers only used clear packing tape on exhibits. However he said that he had seen brown packing tape on older exhibits and non‑forensic officers had given him exhibits sealed with brown tape.[689] He also said that although it was not common, he had seen exhibits which had been repackaged and which had old tape and evidence tape underneath new tape.[690] On the other hand, Mr Whitford said he had never seen exhibits packaged in this way.[691]

592 Sergeant Fisher produced in evidence two other exhibit bags which contained exhibits seized in 1999 during Operation Bluegum to show that the brown packing tape had dried and lost its stickiness on those bags too.[692]

593 This evidence, together with that I have already described from Mr Scott, Sergeant Harris and Senior Constable Mustafa, satisfies me that it is possible that the first layer of brown packing tape placed on the bag containing the seat cover by Sergeant Davison delaminated over time. This may have caused the evidence tape to break. However I cannot make a positive finding that this is what happened as it is also possible that someone broke the seal and lifted the tape. This seems less likely as the first layer of packing tape has lifted rather than been cut or ripped. The accused submits that I should be satisfied that the first layer of tape did not delaminate because there is a small portion of the lower portion of the bag stuck to it. In my view, that portion is so small that I cannot draw any conclusion from it. In every other respect it appears to have lifted.

594 After the first layer of tape and the evidence tape was no longer sealing the bag, someone folded the flap further down the bag and resealed it in that position with another layer of brown packing tape. The second layer of brown packing tape delaminated over time but was partially intact in May 2013 and still sealing the bag closed. It had become fully delaminated by 29 August 2013.

595 On 3 September 2013 Sergeant Fisher delivered the yellow top container containing the vacuumings from the passenger footwell and the bag containing the seat cover, as well as other items taken from Mr McConnell's ute, to Ms Carolyn Jones, the officer at PathWest whose job it was to receive items sent for analysis. Ms Jones took the yellow top containers containing the vacuumings out of the plastic bag in which Sergeant Davison had sealed them, by slicing open the bottom of the bag with a scalpel. She then placed PathWest adhesive labels on each yellow top container and then placed them in a new plastic bag.[693] Ms Jones then placed all of the items given to her by Sergeant Fisher items into secure storage.[694]

596 On 5 September 2013 Ms Horner retrieved the car seat cover from the secured storage area of PathWest in order to examine it. Before opening the bag it was in, she took photographs of the bag which clearly show that it was still sealed in the manner Sergeant Fisher had sealed it on 29 August 2013.[695]

597 Ms Horner then opened the bag using a scalpel to cut the bottom of the bag, so as not to disturb the seal of the folded flap onto the bag.[696] When she removed the seat cover from the bag, she noted that it was quite sandy but folded neatly.[697] She opened the cover onto a bench covered with clean examination paper. The outside front of the cover was facing her. She saw an earring lying on the passenger side of the seat cover, near the seat belt buckle hole.

598 Ms Horner took an overall photo of the car seat cover, and a close‑up photo of the earring. She said that as she straightened out the cover to take the photographs, the earring did not appear to move.[698] She put the photographs on the PathWest server, and printed them. She then covered the seat cover with brown examination paper and took the photos to Mr Ken Sanderson, her superior at PathWest, to seek advice as to how she should proceed with the examination.

599 On the photograph taken by Ms Horner of the outside of the seat cover, the earring can just be seen below the right corner of the seat belt hole on the right‑hand side of the cover. Ms Horner did not measure the distance between the seat belt hole and the earring.[699] However using the pattern on the passenger's side of the seat cover as a guide, it is approximately level with the lowest part of the 11th narrow dark coloured stripe from the bottom of the seat cover.[700]

600 When I compare the location of the earring in the photographs taken by Ms Horner to the photographs of the car seat taken by Senior Constable Elliott on 6 August 1999,[701] it is my judgment that the area in which the earring was located on 5 September 2013 would have been completely obscured or partially obscured by the seat belt and buckle on 6 August 1999. I do not expect that someone looking at the car seat cover in situ on 6 August 1999 would have been able to see the earring or they only would have seen the earring if they specifically looked underneath or very close to the seat belt webbing and buckle.

601 The close up photograph taken by Ms Horner of the earring shows a small silver coloured metal ankh earring with a turquoise coloured stone or ornament in the centre of the cross. It has a small silver coloured metal circle attached to the top of the cross. Attached to that small metal circle is a shepherd's hook pierced ear attachment. In the photograph taken with the earring in situ on the car seat cover, the top portion of the hook passes underneath the small metal circle and runs underneath the left arm of the cross. It then lies on the top of the lower portion of the stem of the cross.[702] The shepherd's hook does not appear to be attached to the seat cover[703] but it is possible that it was attached by a thread or two of the seat cover.

602 The earring is nearly identical to that described and drawn by Ms Frederickson for the police in August 1999. The only differences are in the size of the loop at the top of the cross, the size of the small metal circle and the connection on the shepherd's hook. Ms Frederickson's drawing shows the small metal circle being relatively smaller and the connection on the shepherd's hook being relatively larger than the same parts of the earring found by Ms Horner. However when Ms Frederickson drew the earring in 1999 she added a note which said 'Not certain of join'.[704]

603 Mr Sanderson then rang Sergeant Harris and reported the find to him. Sergeant Harris went into the SCS's electronic records and found the drawings done by Ms Frederickson of the earrings Ms Dodd was wearing on 29 July 1999. Sergeant Harris asked Mr Sanderson to forward a photograph of the earring to the police and to seal the seat cover until the police had time to consider the situation. At 3.15 pm, the police received the photograph from PathWest.

604 Mr Sanderson told Ms Horner to leave the earring in situ, to pack the seat cover away and to await further instructions. Ms Horner folded up the car seat cover with the earring left in situ, placed it back in the original packaging, sticky‑taped over the hole in the bag where she had cut it with the scalpel, placed a red evidence seal[705] over that area of the bag which she had cut and put it in the secured storage area of PathWest.[706]

605 Sergeant Harris contacted his supervisor, Senior Sergeant George Paton to advise him that an earring had been found. Sergeant Harris and Sergeant Fisher left PRESS and went to the SCS. They gave a briefing to Detective Inspector Casey Prins, Detective Senior Sergeant Cox, Detective Sergeant Jim Stanbury and Detective Sergeant Bethell. They discussed the next phase of examinations and testing of the exhibits.[707] On the same day Detective Senior Sergeant Cox was appointed the senior investigating officer into Operation Bluegum.[708]

606 The following day, Ms Horner repeated the process she had conducted the day before. It is apparent from the photographs which she took when compared to those taken the previous day that the earring had moved slightly on the seat cover. The shepherd's hook was no longer lying underneath the small metal circle and arm of the cross or across the stem of the cross. Rather, it was lying to the left and clear of the earring.[709] Ms Horton turned the car seat cover over and when she did so she heard the earring drop onto the examination table. She estimated that the earring would have dropped no more than a centimetre. She picked up the earring and put it in a sterile container.[710]

607 After taking photographs of the car seat cover, Ms Horner took the earring out of its container and took photographs of it.[711] The scale beside the photographs show that the earring is approximately 2.5 cm long, excluding the shepherd's hook attachment. Ms Horner noted that the shepherd's hook attachment was bent out of shape so that the hook shape was flatter than a normal shepherd's hook.[712] This apparent damage is still present. She thought that the main part of the earring was metal of some sort.[713] It is marked with the number '925'[714] which is the hallmark for sterling silver. I have examined the earring and the photographs taken by Ms Horner. There are some scratches on the metal cross of the earring. It is a muted or dull silver colour. I conclude that it does not look like it was brand new in 2013. There is nothing to indicate that it could not have been relatively new in 1999.

608 The photographs taken by Ms Horner on 6 September 2013 show the seat cover in the same condition generally in which it was in when photographs were taken by Senior Constable Elliott in August 1999. It is old, worn, dirty and sandy. It is creased, which is consistent with both its age and the fact that it had been folded and in storage for 14 years. There are two holes toward the middle of the seat cover for seat belts and buckles to be threaded through. On the reverse side of the cover there is a faded pattern consistent with the top portion of the rear of the seat cover having faded because it was exposed to sun coming through the rear window of the ute.[715]

609 Ms Horner then swabbed the earring's surfaces. Since then the surfaces have been swabbed once more and washed to try and remove DNA for testing.[716] Those swabs and washing solutions have been tested at PathWest and at Cellmark Forensic Services (Cellmark), a DNA laboratory in the United Kingdom, but no DNA has been recovered.[717]

610 On 27 September 2013 Ms Horner examined the vacuumings from the passenger footwell of Mr McConnell's ute and collected 93 hairs and fibres from them. Only two hairs were considered to be suitable for nuclear DNA analysis. One of those two hairs was labelled hair 13.[718]

611 Hair 13 was 18 mm in length. Ms Horner described it as being human hair which was black, straight and coarse.[719] Ms Horner examined the hair under a microscope and considered that the hair was in its telogen or dormant phase but that there was possibly some cellular material attached to the tip of the root which could make it suitable for DNA analysis.[720] Hairs in their telogen phase can fall out naturally.[721]

612 Hair 13 was sent to the PathWest laboratory for further nuclear DNA (nuDNA) analysis which is the standard DNA testing. NuDNA is DNA contained in the nucleus of a cell. It is different from mitochondrial DNA (mtDNA), which I will describe in detail later. PathWest does not have the facilities to examine exhibits for low level nuDNA or for mtDNA.

613 Ms Horner also collected 79 hairs from the seat cover. Seven of these were considered suitable for DNA analysis. PathWest did not detect nuDNA on any of these hairs. The six hairs that were determined to be human in origin were sent to the Victorian Institute for Forensic Medicine (VIFM) for further testing. A seventh human hair which had not been tested by PathWest because it had no root material on it was also sent to VIFM.

614 Ms Horner examined the 1999 vacuumings from the other area of Mr McConnell's ute and collected a large number of hairs and fibres. Only one hair from the seat vacuumings and one hair from the driver's side footwell vacuumings were suitable for nuDNA analysis at PathWest. However when they were tested at PathWest no nuDNA was detected on either hair. The hair from the seat was not further tested.[722] Seven hairs from the driver's footwell vacuumings of were sent to the VIFM for further testing.[723]

615 In early September 2013 Ms Horner took tape lifts from the seat cover and in March 2014 she swabbed 107 areas of the back and front of the car seat cover.[724] Seven tape lifts produced non reportable nuDNA profiles. That is, nuDNA was detected but at too lower level for further analysis.[725] Ten tape lifts produced mixed nuDNA profiles, but all of the profiles were unable to be interpreted further, either because they were too complex or because PathWest could not identify the number of contributors to the mixtures. One tape lift did not contain detectable nuDNA.[726] One hundred and six swabs produced either no nuDNA or no reportable nuDNA. One swab produced a mixed nuDNA profile which was either too complicated or PathWest could not determine the number of contributors.[727]

616 These results illustrate that a reportable nuDNA profile may not be obtained from an item even though it has been often used and handled by people. There may be many reasons why nuDNA is not detected on an item or on swab of an item. First, there may have been nuDNA or no biological material on the area that was sampled. Secondly, the wrong area may have been sampled. Thirdly, the area sampled might have been touched by someone wearing a barrier, like a glove, which would seriously minimise the ability to transfer nuDNA onto the item. Fourthly, if nuDNA or biological material was present, it might have been degraded by sunlight or temperature. Fifthly, the storage conditions of a sample may affect whether DNA will degrade. If it is kept cold, degradation will be fairly limited. If it is kept at room temperature, but dry, there would be not too much degradation, but if it is kept in a warm environment, then degradation can happen quite rapidly. Sixthly, bacterial activity may destroy the DNA.[728]

617 Further, the item might have been cleaned with cleaning agents or it might have been wet over a period of time and that might have destroyed the nuDNA. Moisture might have promoted the bacterial activity which might have destroyed any nuDNA that was present.

618 Whether nuDNA is left behind after an item was touched depends on how hard the item was touched. If an item is touched vigorously, then more biological material will be deposited, compared to a light touch. It also depends on the characteristics of the person who touched the item, because different people deposit nuDNA at different rates and at different times of the day. If the item is touched with the hands, it also depends on how often the person touching the items washes their hands. The amount of nuDNA available on a hand will reduce if it has been washed recently. The age of the nuDNA is another factor. The sooner an item is tested and the results analysed, the better chance there is of detecting any nuDNA on the item. The chance of recovering nuDNA reduces over time.[729]

619 There are then a number of reasons why detected nuDNA may not produce a reportable profile. There may be insufficient nuDNA present or there may be evidence of a number of contributors to the sample and as such it may be too complicated to interpret.

620 Ms Horner also tested four areas of visible staining on the seat cover, which gave positive presumptive tests for blood. However later confirmatory testing was negative and the areas also tested negative for nuDNA, even after different areas of the stains were resampled.[730]

621 Ms Horner identified 14 stains on the seat cover using an alternative light source called a Polilight. It highlights stains which cannot be seen with the naked eye. When the stains were later tested they had negative reactions for the presumptive chemical test for semen. No further sampling was done of those stains.[731]

622 On 11 December 2013 Sergeant Paul Johnson obtained a buccal swab from Mrs Dodd, Hayley's mother.[732] This was submitted to PathWest for analysis and a full nuDNA profile of Mrs Dodd was obtained.[733]

623 On 17 March 2014 Ms Horner excised 5 mm of the root end of hair 13 and sent it for DNA analysis.[734] It then went through an extraction process in which that portion of the hair was destroyed. The process involves dissolving any cellular material present on the hair. That cellular material remains in the extract or solution that is the end result of the DNA extraction process. In this case over 200 µl of extract was produced.[735] The extraction process may recover nuDNA and/or mtDNA.[736]

624 PathWest used a portion of the extract for nuDNA analysis. It did not detect any nuDNA in that portion of the extract. The balance of the extract and the remaining shaft of hair 13 was sent to VIFM.[737] The same process occurred with respect to the second hair from the passenger footwell vacuumings. PathWest did not detect nuDNA in its extract, either.[738]

625 On 20 July 2015 Ms Horner gave Sergeant Fisher the remaining shaft of hair 13 and 200 µl of the DNA extract from the 5 mm portion of the hair root which she had excised.[739]

626 In August 1999 Ms Frederickson had provided the police with two of Ms Dodd's lipsticks. Matching single source nuDNA profiles were obtained in 1999 and 2013 using extracts from each lipstick.[740] It would be possible for another person to have used the lipsticks and left their nuDNA on them, but when the single source profiles from those lipsticks were compared to Mrs Dodd's profile, the comparison showed that there was no exclusion of the possibility that Mrs Dodd is the biological parent of the donor of the nuDNA of those lipsticks.[741] I am satisfied, having regard to all the evidence, that the nuDNA profile obtained from the lipsticks is that of Ms Dodd.

627 On 10 November 2015 Ms Horner gave Sergeant Fisher 40 µl each of DNA extract from Ms Dodd, the accused and Mr McConnell.[742] On 23 November 2015 Ms Horner gave Sergeant Fisher the car seat cover and a further 40 µl of DNA extract for Ms Dodd.[743]

628 In December 2013 and July and November 2015 the WA police gave the remaining shaft of hair 13, 200 µl of DNA extract from hair 13, other hairs, DNA extracts from some of those other hairs, DNA extracts from various people, and three FTA cards[744] to VIFM[745] for further DNA analysis.[746]

629 Dr Hartman is the manager of the molecular biology laboratory and the chief molecular biologist at VIFM. She has worked at VIFM since 2008. She supervises a team of staff who undertake DNA analysis for all the matters that come to the laboratory. She and her staff specialise in working with compromised samples that are degraded in nature. She and her staff also specialise in mtDNA analysis.

630 Dr Hartman has a Bachelor of Science with Honours and a PhD in molecular biology. Her research for her PhD utilised DNA techniques which at the time were quite novel, including DNA sequencing.[747]

631 Dr Hartman is a founding fellow of the Royal College of Pathologists of Australasia's Faculty of Science and a member of the Biology Specialist Advisory Group (BSAG) which is convened by the National Institute of Forensic Sciences. That group provides advice and recommendations as to guidelines that forensic laboratories might follow.[748] She is also a member of the Australian and New Zealand Forensic Society, and the Victorian and Australian Disaster Victim Identification committees.[749]

632 Prior to commencing work at VIFM she was a senior scientist with the Victorian Department of Primary Industries. Throughout her time with the Department she held various positions culminating in leading a small team of researchers looking at animal genetics and genomics.[750]

633 Throughout her career, Dr Hartman has published papers on the different fields in which she has worked. Since joining VIFM, she has contributed to publications in peer reviewed journals about the methods that VIFM have developed to improve DNA analysis.[751] She has also presented this material at national and international symposiums.[752]

634 VIFM and its laboratory are accredited under the National Association of Testing Authorities (NATA). ISO 17025 is the standard that molecular biology labs are accredited to in order to provide forensic work. As the accused does not criticise VIFM's laboratory standards and processes, I will not elaborate further on them.

635 Dr Hartman explained that there are two types of DNA in human cellular material. There is nuDNA which exists in the nucleus of a cell and mtDNA which exists within the mitochondria of a cell. MtDNA is quite small, there are hundreds of copies of it within a cell and it is compartmentalised. It is more stable and tends to survive better than nuDNA. It can be recovered from specimens such as hair or skeletal remains when nuDNA has degraded.[753] MtDNA is inherited by both males and females from their mother, only. That is different to nuDNA which is inherited from both the mother and the father.[754] MtDNA is stable over, and between, a number of generations. How many generations depends on the profile but Dr Hartman gave the example of Ned Kelly's MtDNA which 100 years after his death matched that of a living relative.[755]

636 As there is no issue between the parties as to the existence of mtDNA, and VIFM's method of obtaining mtDNA from an exhibit, I will not detail those matters.

637 A mtDNA profile is called a haplotype.[756] Similar haplotypes are grouped into what are known as haplogroups. Haplogroups have distinct distribution patterns within different parts of the world.[757] For example, haplogroup H to which Ms Dodd's haplotype, H5, belongs is found mainly in Europe, although this is not to say that it is not found elsewhere.[758]

638 MtDNA profiling is used to help either include or exclude the possibility that a mtDNA haplotype has come from a particular donor. It cannot ascertain that it has come from the particular donor because a mtDNA haplotype is not unique.[759]

639 Apart from saying whether a mtDNA sample matches or does not match the haplotype another comparison sample, where there is a match, scientists may provide an assessment of the frequency of that haplotype amongst people. That evidence may indicate how common or rare a particular haplotype is. By comparing a mtDNA profile to a database of haplotype profiles, scientists can gauge the frequency of that particular profile. The guidelines that VIFM follow for reporting state that it can use that counting method, as it is known, to provide a frequency.

640 The mtDNA database used by VIFM is called EMPOP. EMPOP contains over 30,000 haplotypes[760] from all over the world, including Europe, but it does not contain any data for individuals who reside in the United Kingdom, Australia, New Zealand, Canada or most of Russia.[761]

641 VIFM has profiled the mtDNA of Australian volunteers in order generate Australian mtDNA haplotypes which can be uploaded into EMPOP. To date, 201 Australian haplotypes have been accepted into EMPOP for incorporation into the database. These will be part of the next release of the EMPOP database.[762]

642 The BSAG position is that Australian laboratories need to be able to provide some sort of idea of frequency of mtDNA haplotypes and, in the absence of a dataset for Australia, that EMPOP is a suitable database to use to do this. It includes groups that are known to have immigrated to Australia. Therefore, the haplotypes of individuals from overseas on EMPOP will be represented in the Australian population.[763]

643 In support of this position, Dr Hartman referred to Australian Bureau of Statistics data from 2015/16 to the effect that 28.5% of Australian residents and 33.4% of Western Australian residents were born overseas. The top 15 countries of birth were the United Kingdom,[764] New Zealand, China, India, Vietnam, Italy, Philippines, South Africa, Malaysia, Germany, Greece, Sri Lanka, USA, Lebanon and The Netherlands.

644 The accused criticised this evidence on the basis that the statistics were not relevant to the population of Western Australia in 1999.[765]

645 Dr Hartman also pointed out that the haplogroup H is very common in the haplogroups obtained from continental Europe.[766] The implication being that the lack of mtDNA samples from the United Kingdom in EMPOP is not significant because Ms Dodd's haplogroup is well represented in the EMPOP data.

646 The Scientific Working Group on DNA Analysis Methods (SWGDAM) is based in the United States of America (USA) and provides guidance to USA laboratories but their guidelines are also adopted more widely. VIFM follows its guidelines.[767] SWGDAM recommends the use of either two databases. In the USA, SWGDAM recommends the use of the CODIS haplotype database for haplotypes from the USA. It recommends the use of the EMPOP database for haplotypes outside of the USA. It states that the database used should be of large enough numbers, be representative of the population from which the haplotype being considering came and should be of a high standard.[768]

647 I conclude that there are obvious limitations on the usefulness of the frequency statistic because of the above issues with the database that is used to calculate them. If it were available, the most appropriate database to use in this case would be one for the mid north of Western Australia. That is because a helpful statistic is one which tells a court the frequency of the particular haplotype or haplogroup within the geographical area under consideration. A certain haplotype may be quite rare when compared to data sourced from all over the world, but very common amongst the inhabitants of a small community where a crime is suspected to have been committed, if the population mainly comes from the same ethnic group or maternal lineage.

648 The guidelines recommend that scientists use a 95% confidence interval for the frequency that they report. Dr Hartman said that this was to compensate in some way for the size of the database and for the fact that haplotypes may not be present in it. The confidence interval states that the frequency falls somewhere between a low value and a higher value. When VIFM calculates any statistics for a particular profile, it tends to use the most conservative figure, which is the higher figure.[769]

649 In Dr Hartman's opinion the EMPOP database is an appropriate, and the most appropriate, existing database of haplotypes to use in Australia, with or without the Australian haplotypes added to it.[770]

650 After receiving the remaining shaft of hair 13, VIFM subjected it to an extraction process which produced a DNA extract.[771] Before that occurred, the fragment of the hair was extensively washed for a number of hours to remove any external contaminants, dirt or anything that might be on the outside of the hair.[772] VIFM tested this extract as well as the DNA extract of the root of hair 13 recovered by PathWest. The extracts produced full mtDNA profiles.

651 The mtDNA profiles from hair 13 were compared to the mtDNA profile obtained from Mrs Margaret Dodd's DNA profile and Ms Dodd's DNA profile obtained from the lipsticks, and they matched. Therefore, VIFM could not exclude the possibility that the items could have originated from the same donor or a maternal relative.[773] The accused does not dispute this evidence.

652 The mtDNA profile obtained from hair 13 did not match the mtDNA profiles of either Mr McConnell or the accused. [774]

653 VIFM then proceeded to determine the frequency of that haplotype. Initially, VIFM used the EMPOP database, and the most conservative figure obtained as a result of the application of the 95% confidence interval. The statistical result was that one in 204 randomly chosen individuals would be expected to have this same mtDNA profile by chance. Conversely, 203 of 204 randomly chosen individuals would not have this same mtDNA profile, by chance.[775]

654 VIFM subsequently compared the recovered mtDNA profile to the 201 Australian haplotypes which have been approved for uploading into the EMPOP database. It was seen twice in that very small database. The match probability was that at most one in 42 individuals would have this same mtDNA profile by chance. Conversely, 41 out of 42 individuals would not have that mtDNA profile by chance.[776] However Dr Hartman testified that she would not use the 201 Australian haplotypes alone as a database, because it is too small.[777]

655 Dr Hartman testified that if the EMPOP database included the 201 Australian haplotypes, then Ms Dodd's mtDNA profile would recur 116 times in 27,704 profiles. That would not significantly alter the figure that was previously reported using the existing EMPOP database alone.[778]

656 VIFM's view is that the figure obtained using the EMPOP database is the most informative and that is consistent with the SWGDAM guidelines.[779]

657 VIFM also found that the mtDNA profiles from three other hairs (labelled 4, 21 and 25 by PathWest) recovered from Mr McConnell's ute matched each other and matched the mtDNA profile of Mr McConnell. The same result was obtained for other hairs received by VIFM on 12 December 2013. Thus, it cannot be excluded that these hairs originated from Mr McConnell or a maternal relative. Mr McConnell's mtDNA profile was not found in the EMPOP database, meaning that it is quite rare.[780]

658 The mtDNA profile from another hair (labelled 8 by PathWest) recovered from Mr McConnell's ute matched the mtDNA profile of the accused. The same result was obtained for two hairs received by VIFM on 12 December 2013.[781] This particular profile, when compared to EMPOP, was seen 900 times in a dataset containing 29,034 haplotypes. VIFM cannot exclude the possibility that these items have originated from the accused or a maternal relative.[782]

659 Another hair received on 12 December 2013 matched the mtDNA profile of Bradley Hammond.[783]

660 In addition to profiles for the above people, VIFM received profiles from Mr Phillip McConnell and Ms Catherine Edwards. Apart from the results described above, none of the profiles recovered from the hairs matched any of these people.[784] It was not suggested that any relevant person (other than Mrs Dodd and Ms Dodd) shared the same mtDNA profile.

661 The police also forwarded a number of items to the Cellmark for testing.

662 Cellmark is one of the four accredited forensic laboratories in the United Kingdom.[785]

663 MtDNA testing was carried out by Dr Michael Wallbank a reporting officer with Cellmark. His report was peer reviewed.[786] Dr Wallbank has a Bachelor of Science and a PhD in Biological Sciences.[787] He started work as a forensic scientist in 1997 with the Forensic Science Service in the United Kingdom. It provided forensic work to police forces in the United Kingdom. He joined Cellmark in 2007.

664 He performs DNA analyses and reports on cases involving DNA evidence. At Cellmark, Dr Wallbank tends to specialise in cases requiring specialist techniques, such as mtDNA analysis, in order to obtain DNA evidence. Dr Wallbank estimates that he has reported on 100‑200 DNA cases each year for the past 20 years. He has given evidence in court about DNA on several occasions, but never before on mtDNA.[788]

665 Dr Michael Wallbank undertook complementary mtDNA analysis to that conducted by VIFM. He was provided with the DNA extract from hair 13 obtained by VIFM. He was also supplied with mtDNA profiles of a number of persons and DNA results obtained from testing other items.[789] Dr Wallbank submitted these items to Cellmark's laboratory for mtDNA analysis which was carried out, and the results were passed back to him.

666 In relation to the DNA extract from hair 13, Cellmark obtained a complete mtDNA sequence which matched the reference sample from Ms Dodd and the reference sample from Mrs Dodd and VIFM's mtDNA results from hair 13. Dr Wallbank concluded that the mtDNA detected could have originated from Ms Dodd or another person who shares the same mtDNA sequence as her, such as a close maternal‑line relative.[790]

667 In order to estimate how common that mtDNA sequence might be, Dr Wallbank carried out a search of that sequence against the EMPOP database. Cellmark also follow the SWGDAM guidelines. Dr Wallbank regards the European haplotypes in the EMPOP database to be 'a very valid' comparative group.[791]

668 Dr Wallbank acknowledged that he did not know whether the European haplotypes in the EMPOP database were entirely representative of the population of the United Kingdom or Australia. He said that the frequency statistic which he provided gave an estimate of the frequency. In his view, human history indicates that white Caucasian individuals generally populate Western Europe. So it is not an unreasonable assumption that the United Kingdom frequency of mtDNA sequences would be akin to the frequencies seen in other countries in Western Europe.[792] As Australia has a substantial migrant population from Western Europe he considers that the same argument can be made in relation to using EMPOP for Australian mtDNA profiles, particularly as Ms Dodd was born in the United Kingdom.[793]

669 Dr Wallbank's analysis using the EMPOP database was done on 12 May 2016. The results from such an analysis will change slightly depending on the date on which the analysis is done and the parameters used to define the comparative geographical area.[794]

670 Dr Wallbank was informed that Hayley Dodd was a white Caucasian who was born in the United Kingdom. Therefore, he compared the recovered mtDNA profile from hair 13 to the European haplotypes[795] in the EMPOP database. Dr Wallbank calculated that the relevant frequency statistic is that you would expect to see that mtDNA haplotype in approximately one in 80 unrelated European individuals. That is the frequency without employing a confidence interval.[796]

671 Cellmark uses a verbal scale to express the likelihood of DNA originating from a particular person as opposed to it originating from an unknown person. The verbal scale is used in the United Kingdom as a means of evaluating the relevance of a range of evidence types, not just DNA.[797] The verbal scale has seven points on it starting with evidence providing no support for a given proposition. Going up the scale, there are points for weak, moderate, moderately strong, strong, very strong, and extremely strong support for a given proposition. An estimate of one in 80 equates to moderate support for the proposition that the mtDNA detected in the extract from hair 13 originated from Ms Dodd or a close maternal‑line relative of hers rather than from another person unrelated to Ms Dodd.[798]

672 Mr Andrew McDonald is a lead DNA forensic scientist at Cellmark. He conducted nuDNA testing on the extract from the hair 13.

673 Mr McDonald holds a Bachelor of Science degree with Honours in zoology and a Master of Science degree in forensic science. Since 1992 he has worked as a forensic scientist. He has been a reporting scientist for about 20 years and in that period he has reported on hundreds, if not thousands, of cases. He reviews DNA profiles daily.

674 Mr McDonald currently sits on the United Kingdom's Association of Forensic Service Providers DNA working group which is a body of operational scientists from different laboratories who meet to discuss operational issues and interpretation of DNA profiling results. He also sits on the United Kingdom's Forensic Science Regulator's[799] Y-STR[800] subgroup which looks at the interpretation of Y-STRs in forensic science.

675 For about five years, ending in 2014, Mr McDonald represented Cellmark on the United Kingdom Forensic Science Regulator's DNA working group. When he was a member of that working group, Mr McDonald predominantly advised on the interpretation of complex DNA results, being mixed DNA profiles and often low template DNA results.

676 In 2009 Mr McDonald published a paper on maximising the potential from low template DNA using more sensitive DNA techniques. In 2014/15 he published a paper on the use of Y‑STRs in sexual assault cases and co‑authored a chapter of a text book relating to the use of DNA in disaster victim identification incidents.[801]

677 Related to that area of expertise, Mr McDonald is trained in the use of the LikeLTD software program (LikeLTD). He completed his training in October 2015.[802]

678 Professor David Balding wrote the LikeLTD software when he was at the University College London. His expertise is in the statistical evaluation of DNA results, particularly in the forensic context. He has worked in that field for many years and in the early 1990s he developed the standard, statistical formulae for interpreting DNA profiles. Professor Balding was not a witness.

679 Professor Balding trained a number of scientists at Cellmark in the theory and use of the software. He has reviewed Cellmark's processes and agreed that the processes that it has in place, are appropriate for the use of the software. Mr McDonald has been using LikeLTD since about April 2014.

680 LikeLTD has been validated for use in the United Kingdom. The validation was done by Professor Balding. It has been published on numerous occasions. Cellmark validated the software in‑house.

681 The United Kingdom Accreditation Service reviewed Cellmark's scientist's training in the use of LikeLTD and accredited its use of LikeLTD software in the forensic context in October 2015. To get the accreditation Cellmark had to have written procedures for the use of the software, and demonstrate that its scientists who would use the software had training in it and had passed competency assessments.[803] The accreditation process also checked that the DNA Resolve interface which Cellmark had developed did not affect the operation of the LikeLTD software. However the accreditation process did not assess the quality of the LikeLTD software. [804]

682 LikeLTD has been used in United Kingdom courts 'many times'[805] Mr McDonald has given expert evidence in court using LikeLTD.[806] However it is important to note that Mr McDonald is not an expert in statistics and he relies on the expertise of the statisticians who have developed LikeLTD.

683 DNA Resolve is a term used by Cellmark for the LikeLTD software combined with a user interface. Cellmark developed the DNA Resolve interface to allow Cellmark to easily get data into the right format to be inputted into the LikeLTD software. It has been validated in the United Kingdom.[807]

684 Mr McDonald testified that nuDNA is a complex chemical found in almost all cells of the human body. It carries genetic information that determines the physical characteristics of an individual. It is inherited from both a mother and father, and it is believed to be unique amongst individuals, except genetically identical siblings. It may be found in blood, semen, saliva, skin, dandruff, hair, teeth and bones. It may also be found on items handled by another person.

685 There are four stages in the nuDNA analysis process. The first is to recover into a solution any cellular material from the item in question. The second is the quantitation stage to determine the concentration of nuDNA recovered. The third stage is the amplification process. Various chemicals are added to a small amount of the DNA extract. Parts of the DNA molecule that are called short tandem repeats (STRs), which are short sequences of DNA that repeat themselves, are targeted. The scientist tries to identify the number of repeating units at certain points along the DNA molecule. They are copied many times to try to get enough DNA. The fourth stage is the electrophoresis step, which separates out all the DNA fragments that have been amplified on the basis of their length to a point that the DNA results can be read. The scientist can then take aliquots of the DNA to test.[808]

686 Only specific areas or loci of the DNA molecule are examined. These areas of the DNA molecule contain STRs. Each locus has a pair of genes known as alleles. In nuDNA profiling a visual image of the DNA is produced which appears as a series of peaks at these loci. The height of a peak is proportional to the amount of DNA in the sample. If the sample contains a large amount of DNA, its profile produces larger peak heights. If the sample contains a small amount of DNA, its profile produces smaller peak heights.

687 If a person has inherited the same allele from both their mother and father, a single peak will be present at that locus. If a person has inherited different alleles from their mother and father, two peaks will be present at that locus. If the DNA sample comes from a single individual a scientist does not expect to observe more than two alleles at any one locus. If three are seen, it suggests that the DNA sample is from more than one person. If more than three alleles are seen, unless it is a sample from a person with a rare mutation, the DNA sample is from more than one person and it may include the DNA of a number of different people.[809] In a profile from a mixed DNA sample, a major contributor may be able to be identified because the large peaks on the profile are able to be matched to one contributor's DNA profile. This indicates that the person with that profile has contributed a larger amount of DNA to the sample.[810]

688 For nuDNA profiling, Cellmark uses software called NGM SElect, which examines a total of 17 loci, including the European standard set of loci and the gender loci.[811] The profile is represented in a linear manner. On the left‑hand side of the profile, the fragment sizes are relatively small and are called low molecular weight markers or loci. Whereas, moving across to the right‑hand side of the profile, the fragments get increasingly larger and are called high molecular weight markers or loci. DNA samples which have been subjected to degradation, whether it is environmental degradation or some other types, generally lose the high molecular weight fragments first, because they are large and it is easy for bacteria to destroy the DNA. Low molecular weight markers, are much smaller, and are more difficult for bacteria to destroy. Mr McDonald said that in forensic work he often sees a relatively strong result at the low molecular weight end, but lower peak heights on the right‑hand side of the profile, because the high molecular weight end is not as intact as it would be in a fresh DNA sample.[812]

689 When the amplification process is performed, artefacts can occur in the DNA profile as a by-product of the process. These are not true bits of DNA. There are a number of different kinds of artefacts. One type is called stutter peaks which are small peaks, one repeat unit in front of the parent or true peak. They are no more than about 10% to 15% of the size of the parent peak. Scientists generally ignore stutter peaks, but sometimes they need to take it into account when doing some statistical evaluations.[813]

690 When there is a single contributor to a DNA sample scientists use a match probability calculator to determine the statistical likelihood of the DNA in the sample coming from that individual. The scientists multiply the allele frequencies together in order to do that. For more complicated profiles, scientists use a likelihood ratio. There is a consensus amongst the forensic community that the evaluation of complex DNA profiles should be presented as a likelihood ratio.[814]

691 In order to determine the likelihood ratio, a scientist evaluates two propositions. Commonly one is called the prosecution hypothesis and the other, the defence hypothesis. In general terms, the prosecution hypothesis will be that a person of interest has contributed to the DNA profile, and the defence proposition will be that the person has not contributed to it. A scientist carries out some statistical evaluation on the likelihood of each of the hypotheses. Having worked out those two likelihoods independently, the likelihood ratio is the number of times one of the hypotheses is more likely than the other. Specialist statistical software is required to calculate likelihood ratios.[815] The likelihood ratio does not indicate whether the hypotheses which are being tested are true.[816] It tests the data against specific hypotheses, indicating which hypothesis is more consistent with the data.

692 LikeLTD was written specifically to produce likelihood ratios for low template DNA.[817] STRmix, which is the other system Cellmark uses, is not designed for use with low template DNA.[818]

693 Mr McDonald regularly reports on his findings in respect of low template nuDNA profiles. When there is a requirement for a statistical evaluation, two scientists, who are trained to do the statistical evaluations using DNA Resolve, look at the data, evaluate it, and interpret it. The LikeLTD software allows a scientist to input data into that software as certain or uncertain. The scientist requires training to enable him or her to determine what information is certain and what is uncertain.

694 The LikeLTD software does not take into account information from peak heights. That is because for low template DNA each time it is analysed a different strength peak may be detected, depending on how much of the DNA in the extract was included in that particular sample.[819]

695 One of the vagaries of low template DNA is that drop out is very common. Drop out is when an allele which has been present during one analysis does not appear on another analysis. So that, in one analysis there may be a peak at a particular locus and then when the extract is next tested that peak is not present. An allele may drop out or two alleles at the same locus may drop out. Mr McDonald described it as getting a 'little snapshot' of the DNA each time it is sampled, but never getting the whole of it. By carrying out multiple analyses of the DNA, the scientist tries to build up as much of a picture of the DNA profile as is possible but the whole picture will not be present in each analysis.[820]

696 Another occurrence with low template DNA is drop in. This is when a small amount of DNA has been deposited into the sample. This may occur during its collection, its storage or its analysis. It is not uncommon, but it tends to be just one component or at most, two components in a sample. They are most often observed at the low molecular weight markers.[821]

697 Mr McDonald was asked by the Western Australian Police to provide an opinion in relation to this matter. In order to do so he received:

(1) nuDNA extract from hair 13 obtained by PathWest;[822]

698 Mr McDonald also had regard to the mtDNA analyses of the extract from hair 13 carried out by Dr Hartman and Mr Wallbank.

699 Dr McDonald determined that Cellmark had received three times as much nuDNA extract from hair 13 as Cellmark would usually use. Consequently it concentrated the extract into 32 μl to give it the best chance of obtaining a nuDNA profile from it. That amount was selected because NGM SElect analysis, which Cellmark uses, only uses 10 μl. Having three times that amount meant that Cellmark could run three analyses, or runs, from the extract.[824] Cellmark found nuDNA in each of the runs.[825]

700 Cellmark has developed a technique called DNA enhancement that aims to boost the signal of low level nuDNA results. It is an approach that is recognised by many in the forensic community as a means to improve low level nuDNA profiles. It is often referred to as being post‑PCR[826] clean up or post‑PCR purification. The first stage involves running the PCR product for a slightly longer time on the electrophoresis platform. The normal process is to inject that sample onto the machine for just 10 seconds but if the injection time is increased to 20 seconds there is a better chance of detecting more of the nuDNA.[827]

701 The second stage of enhancement removes from the extract excess charged molecules from chemicals which were used to amplify the DNA, because they are no longer required.[828] In this stage only 1 μl of amplified DNA extract is used.

702 In the third stage the process in stage 2 is repeated with the remaining 9 μl of extract.[829] The final stage is phase three zoom which seems to be a magnified analysis of the stage 3 results.[830]

703 Mr McDonald then conducted the same processes twice more with the second and third 10 μl of DNA extract. Thus, he conducted three runs, each involving an analysis of 10 μl of extract, three enhancement phases and a final phase three zoom. In each of the enhancement and zoom phases, Mr McDonald expects to see the same DNA components getting bigger. If a component comes in, it should stay in and not disappear.[831] Whereas, it is not unusual to see different alleles appearing in different runs because each run uses a different portion of the DNA extract.[832] Mr McDonald uses the phase three zoom results for his statistical evaluation.[833]

704 Following these enhancement techniques, a small number of additional DNA components were detected. An average of 32% of Ms Dodd's alleles were found to be certain in each run.[834] All of the components detected as certain after these enhancement techniques were represented in the nuDNA profile of Ms Dodd, other than the Y peak. The Y allele, in addition to an X allele, was detected at the sex determining or gender marker during each phase of run three. This indicated that at least some of the nuDNA detected in the nuDNA extract from hair 13 was male in origin.[835]

705 There was no indication of more than one contributor to the DNA profile, in that there were not three alleles at any one locus. However Mr McDonald testified that it could be the DNA from more than one person because he did not know whether he had obtained all the DNA that was in the extract.

706 In the opinion of Mr McDonald, Ms Dodd can be a contributor to the trace level amount of DNA detected in the extract from hair 13. Mr McDonald said that all 17 components found in the DNA extract from hair 13 matched components in Ms Dodd's reference DNA profile. He would not expect to see that degree of representation just by chance.[836]

707 Mr McDonald said that the Y allele could be explained in a number of ways. First, the nuDNA may not be from Ms Dodd. Rather it could be a single source male contributor. An alternative explanation, given that the number of contributors to the extract from hair 13 is uncertain because it is such low level DNA, is that the nuDNA detected is from more than one person. That means that the nuDNA detected is predominantly Ms Dodd's nuDNA, but with some male nuDNA in some way becoming associated with the DNA extract.

708 Mr McDonald testified that the environment from which hair 13 was recovered and the way in which it was recovered from the car is one way that the extract could become contaminated with male nuDNA. Mr McDonald had seen a photograph of the passenger footwell of Mr McConnell's ute taken during the examination on 6 August 1999.[837] He noted that there was a lot of debris in the ute and it could be that some cellular material that may not have been originally associated with hair 13 became associated with the hair through the vacuuming process or the state of the car. He also said that as hair 13 had been stored for a long period of time with the vacuumings, there was an opportunity for DNA from other items in the vacuumings to become adhered to the root of hair 13.[838] If there was any extraneous DNA on the hair root when the DNA extract was obtained from it, the extraneous DNA will end up in the extract with DNA from the hair itself.[839]

709 In this respect, I note that Cellmark used the DNA extract obtained by PathWest from the root of hair 13. There is no evidence as to whether or not PathWest washed the hair root before it obtained the DNA extract from it. This is to be compared with the evidence from VIFM that before it produced the DNA extract from the shaft of hair 13, which it then used in the mtDNA analysis, it washed the hair for several hours in order to remove any extraneous DNA.[840] I do not think that I can assume that PathWest did the same thing to the root of hair 13, although it may have done so. Whether it did so or not, may depend on whether the aim of its testing was to recover any DNA on the hair, whether it be from the donor of the hair or someone who touched the hair, or whether it was only to identify the hair donor. Clearly, VIFM was trying to do the latter.

710 The DNA extract from hair 13 could also become contaminated through the introduction of a trace amount of DNA from somebody during testing. Mr McDonald said that it is a well‑recognised phenomenon in the forensic community that drop in occurs in a sample. He gave the example that even in control samples, from time to time a peak and usually no more than two peaks, will be seen. In those cases, a scientist knows that the control sample is negative and yet in some manner DNA from somewhere has got into it. The most likely markers where drop in is observed is in the low molecular weight markers, of which the gender marker is one.[841]

711 Given that this was low template DNA, all but one of the components of the nuDNA profile obtained by Cellmark matched Ms Dodd and the mtDNA profile obtained from hair 13 also matched Ms Dodd's mtDNA profile, Mr McDonald gives 'greater credence to the belief that this could be a mixed nuDNA profile'.[842] That is, Ms Dodd is the predominant contributor to the mixed nuDNA profile but there is a male contributor who has contributed the DNA at the sex marker.

712 In cross‑examination, Mr McDonald agreed that if the mtDNA analysis was 'deficient' it would impact on his conclusion.[843] However it was not made clear in what way it would have to be 'deficient'. For example, is that if the haplotyping was deficient or if the frequency estimate was not reliable?

713 Mr McDonald also agreed that given that the sample was low template nuDNA, no one could know for certain the actual number of contributors to the mixture, if it was a mixture.[844]

714 The nature of the nuDNA results obtained by Cellmark were such that they were not suitable for routine statistical evaluation. Instead, Mr McDonald undertook a statistical evaluation using the LikeLTD software which he described as a probabilistic genotyping software.[845] Before doing that he and another scientist independently created the input tables based on the results from the three runs. They then compared their input tables. There was one difference between them which they discussed and agreed on.[846] The software analyses the data which is inputted and determines the likelihood ratio between two competing hypotheses.

715 When Mr McDonald collected and summarised the results from the three runs he put the X allele in the confirmed position as two runs had produced it. He put the male Y allele in the unconfirmed position as only one run had produced it.[847] However LikeLTD does not take into account the results at the gender marker so that information was not inputted into LikeLTD. LikeLTD does not use the sex marker because it analyses allele frequency data and the alleles at the sex marker are not meaningful or informative in that context because every male has a Y allele and every person will have an X allele.[848] Other results were put into the table based on whether the peak observed met the required analytical threshold. Training in the LikeLTD software requires that even peaks which the scientists regard as stutter artefacts are included in the results as uncertain results.[849]

716 Mr McDonald then used different hypotheses to obtain different likelihood ratios. Although it would have been possible to use a prosecution hypothesis that Ms Dodd was the only contributor to the DNA profile obtained from hair 13, and get a likelihood ratio which favoured the prosecution hypothesis, Mr McDonald did not use that hypothesis because he knew that the presence of the Y allele meant that Ms Dodd could not be the only contributor to the DNA profile obtained from hair 13.[850]

717 Rather, for one analysis, Mr McDonald used a prosecution hypothesis that the nuDNA in the extract from hair 13 came from Ms Dodd and an unknown individual and the defence hypothesis that it came from two unknown people. The likelihood ratio generated by LikeLTD is that the DNA evidence is 7.9 million times[851] in favour of the prosecution hypothesis.[852]

718 However the analysis favoured by Mr McDonald used a prosecution hypothesis that the nuDNA in the extract from hair 13 came from Ms Dodd and some trace level contributor, whether it be from an environmental factor or from some other individual (with drop in), and a defence hypothesis that it came from an unknown person with drop in. This is because it produced the most conservative likelihood ratio.

719 The likelihood ratio generated by LikeLTD is that the DNA evidence is 7.2 million times in favour of the prosecution hypothesis.[853] That likelihood ratio did not change significantly if the prosecution hypothesis remained the same and defence hypothesis changed to that the nuDNA detected came from the accused with drop in.[854]

720 It is important to understand that the likelihood ratio is the likelihood of the ratio of those two hypotheses, both of which include that the nuDNA profile obtained from hair 13 is a mixed nuDNA profile. The likelihood ratio obtained by Mr McDonald does not tell me the likelihood ratio for the propositions that the profile came from Ms Dodd and drop in as opposed to an unknown male without drop in.[855]

721 In cross‑examination it was put to Mr McDonald, in effect, that the overall likelihood ratio was not credible because it was based on individual likelihoods of the prosecution and defence hypothesis which were 'fantastically low figures' or close to zero. Mr McDonald said that those figures were not important when looked at by themselves.[856] Rather, it was the ratio of those figures which was significant.[857] He also did not agree that the ultimate ratio was disproportionately large only because the individual figures for the prosecution and defence hypotheses were very small.[858]

722 However there were some figures calculated by the LikeLTD software which he was not able to explain. The best he could do was assert that there would be some reason for the apparent anomalies.[859] Mr McDonald gave evidence that in 2012 an error was found in the maths used in LikeLTD which Professor Balding corrected. Since then it has been admitted for use in courts in the United Kingdom. Mr McDonald is confident that the maths now used in LikeLTD has been scrutinised by appropriate experts and the model is deemed to be working correctly.[860]

723 Under the verbal scale used in the United Kingdom, a likelihood ratio of 7.2 million is nuDNA evidence that provides extremely strong support for the proposition that Ms Dodd has contributed to the nuDNA evidence from hair 13.[861] That is Mr McDonald's opinion.[862] According to the results, Mr McDonald also says that they give extremely strong support for the proposition that the nuDNA from hair 13 came from Ms Dodd and the accused, as opposed to Ms Dodd and an unknown person.[863]

724 There was quite a lot of cross‑examination of Mr McDonald about the maths which LikeLTD employed to calculate the likelihood ratio on which he relied. However there was no challenge to the admissibility of Mr McDonald's evidence which was, in part, dependent on the results produced by the LikeLTD software. It is ultimately a matter for me to determine the weight to be placed on Mr McDonald's opinion. In determining that weight, I remind myself that I am not an expert statistician and I am not qualified to determine whether the mathematical calculations carried out by the software are correct or not. Mr McDonald did not purport to be an expert statistician but he has been trained in the use of the software and he does understand how it works to a certain extent. He did not concede any of the propositions put to him which where expressly or impliedly critical of the software.[864]

725 Professor Allan Jamieson has a double first class honours degree in biology and genetics and a PhD in blood grouping systems. Following the award of his PhD, he participated in postdoctoral research in cystic fibrosis, pregnancy hormones and the herpes virus. From 1995 - 2002 he was the laboratory manager for the Lothian and Borders Police Forensic Science Laboratory.[865]

726 He is a visiting professor at Staffordshire University and Napier University in Edinburgh and an honorary professor at the University of the West of Scotland. He is a fellow of the Royal Society of Biology and a chartered biologist.

727 Professor Jamieson is the co‑editor of Wiley Encyclopaedia of Forensic Science. He has published both peer‑reviewed and non‑peer‑reviewed articles in journals.[866] With his colleague from the Forensic Institute, he has published a book on DNA profiling. He has published material on the likelihood ratio and on the interpretation of multiple contributor DNA mixtures. Up until 2016 he was a member of the editorial board of The Biologist and also published articles in the journal.

728 He has been an external examiner for forensic sciences at Edinburgh University and is currently the external examiner for Anglia Ruskin University in Cambridge.

729 Professor Jamieson has given numerous lectures and presentations in forensic science[867] and he has held positions on boards relating to forensic science.[868]

730 Professor Jamieson has given expert evidence in courts in the United Kingdom and in different states of the USA on many occasions. He has provided written opinions in relation to Australian cases but it seems that these proceedings are the first time he has given oral evidence in an Australian court. About 90% of his legal work would be in relation to DNA profiling, both nuDNA and mtDNA.[869]

731 In a case called R v Reed[870] the court said that his evidence was limited in comparison to that of the prosecution expert witness. He conceded that he had more limited experience than the prosecution expert but testified that he had expertise that was not dependent on daily hands‑on experience. He is also of the opinion that since 2009 he has gained more expertise in the area.[871] Apparently there was also some issue taken with an opinion he gave for the case of R v Conaghan,[872] although the evidence was such that I could not understand what the exact criticism was of him.[873] Despite these cases, Professor Jamieson said that he had never been prevented from giving expert evidence in court.[874]

732 Professor Jamieson works at the Forensic Institute located in Glasgow, Scotland (the Institute). He started the Institute. Its primary role is to review and to do research. It does not have a laboratory. If it requires any laboratory work to be done, it sends it to a contracted DNA laboratory. The laboratory will return the raw data to the Institute and the Institute scientists use relevant software to interpret it.[875]

733 Professor Jamieson agreed with the nuDNA results from the runs with the DNA extract from hair 13 which Mr McDonald did.[876] However he considers the variation in the results obtained by Mr McDonald to be so inconsistent that he did not have confidence in the results.[877] His view is that he cannot be certain about anything from Mr McDonald's analysis.[878]

734 In respect of the nuDNA, Professor Jamieson agreed that apart from the Y allele, the remainder of the alleles detected in the DNA extract from hair 13 matched the nuDNA profile of Ms Dodd.[879]

735 As to Mr McDonald's opinion that the profile he interpreted could have been from Ms Dodd and an unknown person or with drop in, Professor Jamieson said when there are no more than two alleles across the entire nuDNA profile obtained from the extract from hair 13, the most obvious conclusion is that it is a single source profile. He said that there was nothing in the profile to indicate to him the presence of a second contributor.[880] He considers it to be speculation to consider the presence of a second contributor.[881] Further, given that there is a Y allele detected, it means that a single source contributor would be male.[882] Mr McDonald and Professor Jamieson agree that if this is a single source profile the contributor could not be Ms Dodd because of the Y allele. However Professor Jamieson acknowledged that there is always a risk of external contamination and drop in.[883]

736 In respect to the calculations done by the LikeLTD software, Professor Jamieson said that it took two extremely small likelihoods and calculated the ratio between them. Although that calculation resulted in a large number, his opinion was that the actual likelihood in favour of the prosecution hypothesis is very small, if the actual numbers are taken into account.[884]

737 Professor Jamieson noted, as did Mr McDonald, that LikeLTD operates by adjusting different parameters within the statistical consideration to calculate the maximum likelihood for the prosecution hypothesis and the maximum likelihood for the defence hypothesis. Having done that calculation, the software concluded that the best result for the prosecution is obtained if Ms Dodd has a DNA dropout rate of 89.9% in run 1, 83.6% in run 2 and 90.6% in run 3. It concluded that the maximum likelihood is obtained when, in fact, there is a 100% chance of drop out for the second contributor. In other words, alleles of the second contributor will not be seen because they have entirely dropped out. That is the same for the defence proposition. Although Professor Jamieson appeared to ridicule this conclusion, he conceded that the conclusion accorded with the most obvious interpretation of the evidence that he had suggested earlier given that there was no evidence on Mr McDonald's analysis of more than two alleles at any locus.[885]

738 In relation to the mtDNA, Professor Jamieson agreed that the haplotype of the mtDNA from hair 13 matches the mtDNA of Ms Dodd.[886]

739 Professor Jamieson considers that the EMPOP database would be appropriate to use to provide frequency information if it could be demonstrated that the haplotype frequencies are the same in Australia and the United Kingdom as they are in the countries from which the EMPOP data comes. However the database has a restricted input in terms of the populations, and those populations have not been demonstrated to be the same as the populations of the United Kingdom or Australia.

740 In Professor Jamieson's view, what Dr Hartman and Dr Wallbank have done is compromise their opinions by looking at an inappropriate database simply because it was available and includes a reasonably large number of samples.[887] In Professor Jamieson's opinion, the Australian haplotype database is the more relevant database but it is too small to be regarded as accurate.[888]

741 As Dr Hartman and Dr Wallbank do, Professor Jamieson relies on the SWGDAM guidelines. The difference between them is that whilst they consider the EMPOP database to be a relevant, appropriately sized database, Professor Jamieson does not. He considers it relevant to take into account the frequency of the haplotype of the mtDNA of hair 13 in the Australian population because if it was not Ms Dodd's hair, it would have been the hair of an another Australian resident. He says that the relevant question is what is the chance that hair 13 would be found in a car in Australia; not what is the chance that hair 13 would be found in an English person?[889]

742 EMPOP also has a disproportionate number of samples from specific areas of the world, which Professor Jamieson believes may distort the results. He concludes that the results using the EMPOP database are irrelevant.[890]

743 In cross‑examination there were criticisms levelled at Professor Jamieson. These criticisms and his responses included:

(1) Professor Jamieson has never undertaken a mtDNA analysis.

(2) When Professor Jamieson was the chairperson of the Standards committee of the Forensic Science Society, there was an internal disagreement between himself and the president which resulted in a vote of no confidence against Professor Jamieson at a meeting of the society, when he was not in attendance. As a consequence, he resigned as chairperson.[891]

(3) The Forensic Institute is a private commercial organisation and it is not accredited by any body in the United Kingdom. However Professor Jamieson says that is because there is not any system within which it fits.[892] Professor Jamieson made the point that all of the current DNA providers in England and Wales are commercial organisations, since the Forensic Science Service was terminated.[893]

(4) Professor Jamieson acknowledged that he has not, whilst at the Institute, done any work for the prosecution in a case. However he says that there are many cases in which he has agreed with the prosecution.[894]

(5) In the case of Reed, it was noted that Professor Jamieson had completed a one day training course in the use of GeneMapper Software which Professor Jamieson says translates raw data into a picture. He says that his lack of training was not in the interpretation or analysis of DNA results. It was simply training in how to take a data file and convert it to a picture. His view is that a one day training course was standard.[895]

(6) Since the decision in Reed in 2009, Professor Jamieson has not undergone any proficiency testing in LikeLTD software.[896] The Institute does not use it. Neither has he ever used Cellmark's DNA Resolve software, which is the interface software with LikeLTD.[897] In respect of LikeLTD, Professor Jamieson has used online material and instruction manuals to familiarise himself with the software. His opinion is that he does not use it because it does not produce the correct results. He said that it was not this Institute's role to repeat the results. His role was to review the results, verify whether they correspond to the manufacturer's recommendations, and then form his view on whether the testing is valid.[898]

(7) Professor Jamieson has given evidence in court in over 30 cases involving LikeLTD and he has never been prevented from giving evidence on the topic of low‑template DNA as an expert.[899]

(8) Professor Jamieson conceded that he is not a statistician. He claims to understand the published formulae which produce the likelihood ratios in the LikeLTD reports but he acknowledges that he cannot provide an expert opinion on the software as a statistician.[900]

744 Professor Jamieson agreed that 'enhanced detection methods' are accepted and used in the United Kingdom. He also agreed that he was involved in a challenge to their validity many years ago but that challenge had 'fallen away' and they were accepted for use in the courts in the United Kingdom.[901] It is regrettable that it was not clarified with Professor Jamieson what 'enhanced detection methods' are. It seems that they are the sort of methods used by Mr McDonald to detect and analyse low template DNA.

745 Professor Jamieson also agreed that it was now accepted that likelihood ratios were the preferred method of calculating statistics when dealing with low template DNA.[902] He agreed that the DNA Commission of the International Society for Forensic Genetics recommends likelihood ratios as the preferred approach to nuDNA mixture interpretation. What Professor Jamieson does not agree with is that the LikeLTD software was a suitable programme for interpretation of the results obtained by Mr McDonald.[903]

746 One of the issues which concerns Professor Jamieson is that at some loci the LikeLTD software produced positive likelihood ratios for the prosecution hypothesis when at those loci no DNA was detected.[904] Neither does Professor Jamieson think that the validation of LikeLTD has been sufficient.

747 Although Professor Jamieson agreed that there was no evidence of DNA from more than one person in the extract from hair 13, he also acknowledged that when DNA is detected at such low levels as it was in this case, it is not possible to determine the number of contributors to it.[905]

748 Professor Jamieson also agreed that drop in does occur in the analysis of low template DNA samples and that if you 'invoke' drop in then it could explain the Y allele in this analysis. Professor Jamieson made the point that VIFM does not believe that it occurs in their laboratory but I note that the sample analysed by Mr McDonald came from PathWest. Professor Jamieson also agreed that drop in is more likely to occur at the low molecular weight markers and that the Y allele is a low molecular weight marker.[906]

749 Professor Jamieson also agreed that there may have been gross contamination of the root of hair 13 with DNA from another source due to its location in Mr McConnell's ute or the way in which it was stored after it was vacuumed from the ute in 1999.[907] However if there was gross contamination, Professor Jamieson noted that any of the alleles which were detected could be part of that gross contamination. Professor Jamieson does not think that gross contamination is highly likely because there is no evidence of the addition of a considerable number of alleles.[908] He accepted that any of the single occurrence alleles could be drop in.

750 Professor Jamieson agrees that a possible explanation for the mtDNA and nuDNA results from hair 13 is that it is a hair from Ms Dodd and the Y allele is explained by drop in. However Professor Jamieson's opinion is that the most probable conclusion is that it is a single source male profile.[909]

751 Professor Jamieson said that there are other pieces of software that claim to be able to interpret low template DNA. LGC, which was formerly the Laboratory of the Government Chemist in the United Kingdom, use a software called LiRa, which is supposedly based on LikeLTD. Professor Jamieson has used LiRa at LGC laboratories and also compared the results from LiRa with the results from LikeLTD in case samples. Both of those pieces of software do not use peak heights, whereas other software like STRmix and TrueAllele supposedly take into account the peak height. Professor Jamison agrees that is problematic in low template samples.

752 One of the reasons why Professor Jamieson does not agree that LikeLTD is the appropriate software to use in this case is that the validation process has not attempted to establish the limits beyond which the software cannot be used. In other words, whether a DNA profile can be so incomplete that the software cannot be used to interpret it. In Professor Jamieson's view, the production of likelihood ratios in this case at loci where there was no data highlights that there is an issue in this regard.[910]

753 In conclusion, Professor Jamieson is of the view that it is not possible to develop any reliable opinion about the nuDNA profile obtained from the root of hair 13 because of the 'paucity of the data', but the most likely explanation is that it is a single source profile from a male.[911]

754 An issue arose during final submissions as to whether it was appropriate for me to read the cases which were referred to during the cross‑examination of Professor Jamieson. Neither party was of the opinion that I should read the cases. The State was of the opinion that it was only if I embarked on an analysis of the scientific validity of LikeLTD that I should read the cases.

755 I have not read the cases and decided that I would not do so. They are not in evidence and they were, presumably, decided on the basis of different evidence than the evidence that is before me. I must determine this case based on the evidence before me.

756 Neither Mr McDonald nor Professor Jamieson is an expert statistician. There was no objection to the tender of Mr McDonald's evidence, which was based in part on his use of the LikeLTD software. Professor Jamieson is not an expert who can criticise the maths and statistics used by LikeLTD. He has criticised LikeLTD because it appears to obtain a positive likelihood ratio for loci for which there is no data. However as he is not a statistician or mathematician, his opinion in that area carries little or no weight. His opinion about LikeLTD which does carry weight is that with very low template DNA as in this case, there is too little DNA present for the calculation of reliable likelihood ratios for competing hypotheses. Mr McDonald believes that this is not the case and that LikeLTD is appropriate software to use to produce valid likelihood ratios.

757 I am more inclined to accept Mr McDonald's opinion as he is regularly involved in producing DNA profiles and using LikeLTD to interpret them. Professor Jamieson's experience is in relation to reviewing the results of others work. However I accept that both Mr McDonald and Professor Jamieson are experienced and qualified to give evidence in this area and that both of their opinions deserve to be given weight. In these circumstances I am unable to conclude that it is more likely that the nuDNA profile obtained from hair 13 is that of Ms Dodd with drop in than to be that of a single source male contributor. I think it is possible that it is Ms Dodd's hair but I am not persuaded that it is her hair.

758 In relation to the mtDNA analysis and the use of the EMPOP database, the experts are in agreement that the haplotype obtained from hair 13 is the same as Ms Dodd's and Mrs Dodd's haplotype.

759 Dr Hartman's and Dr Wallbank's use of EMPOP and the Australian haplotypes gives me some idea of the frequency of this haplotype amongst the population in the United Kingdom and Australia. However it is only a very rough indication. The evidence shows that hair 13 could be Ms Dodd's hair but it does not persuade me that it is. This is the case even when the mtDNA and nuDNA evidence is considered together.

760 Another relevant matter which I have taken into account is Ms Horner's description of hair 13. She described it as black.[912] Ms Dodd had dark brown hair. Ms Horner's description of its colour does not exclude hair 13 from being Ms Dodd's hair but it is one matter which suggests that it may not be her hair.

761 The undisputed evidence of Ms M[913] is that she was a 31‑year‑old seasonal worker on farms in the Atherton area of Queensland when she encountered the accused on the Palmerston Highway in the early hours of 1 June 2007. At that time she was around 152 cm tall and weighed about 65 kg.

762 Ms M was hoping to be able to get a lift to Atherton from a passing truck after spending the evening with friends. Over the course of the evening, she had consumed six cans of premixed rum and soft drink. Ms M was very intoxicated.

763 At about 1.00 am, a white van pulled up beside her. The accused was driving. The accused asked her if she was alright and where she was going. She told him that she was okay and that she was going to a nearby town. He offered her a lift, and she accepted it. He introduced himself, but she did not catch his name. He said he was coming from a nearby hotel.

764 They were driving for about 10 minutes, during which the accused asked Ms M a lot of personal questions, such as where she lived and if she was running away from something such as a domestic dispute. He told her she was safe with him, and he offered to take her to the local Police if she had any problems as he got on really well with the local police. He appeared normal and concerned. She did not feel uncomfortable.

765 Eventually, he stopped the van at an intersection. She went to get out, but he offered her a coffee at his place. He agreed to drop her off afterwards, and she went with him. He drove on a dirt driveway to a very rundown house. He welcomed her into his home. They went inside, and the interior was very bare. There was an outdoor chair in the kitchen, and he told her to have a seat, which she did.

766 He offered her wine. When she refused, he insisted she have a drink of some kind, so she accepted an orange juice. The accused sat on the floor and asked if she smoked cannabis. She said that she did, even though she really did not. The accused produced some cannabis and asked her to roll a joint, which she did. She knew it was cannabis, because she had seen it and used it before. She lit it and gave it to him. She then said that she was ready to go home. He offered to let her stay for the night, but she said she wanted to go. He told her she could walk, and that he was not going to give her a lift. Ms M went to leave. She unlocked a latch and opened the front door. She heard the accused get up and follow her. She walked down the driveway and was just past the van when the accused called out to her that he would give her a lift. She took a couple of steps back towards the van when the accused started walking towards her. She noticed that his demeanour had changed, and he was threatening and scary. He approached her, grabbed her arm, and swung her around to face him. He had a large piece of wood in his hand, like an axe handle.

767 He raised it and hit Ms M twice on the top of her head. He may have hit her a third time, but she cannot recall. He went to hit her again, and she broke free of him and said to him 'Why are you doing this?' The accused replied, 'This is rape'. He told her that he liked her and that she was feisty.

768 He then dragged her back into the house by her hair. He dragged her into a room with a bed. He let go of her hair and grabbed her wrist. He told her to undress. Ms M was so frightened that she urinated. She was crying. He threatened to hit her again, if she did not do what he said, so she complied.

769 As she went to take off her top, the accused grabbed her skirt, sports shorts and underpants and pulled them all down at once. When she was completely naked, the accused pushed her onto the bed. The accused sat on top of her and tied her hands to the bedhead with rope which he got from the railing of the bedhead. He then sexually assaulted her by rubbing his penis on the outside of her vagina. Ms M described that he was treating her like she was his girlfriend and the incident was normal.

770 He kept her wrists tied together, but let her loose from the bed. He demanded she suck his penis and forced her to do so. He slapped her when she stopped. He told her that if she did what she was told, she would be okay. The silver locket Ms M was wearing on a chain around her neck flipped across her face.

771 She removed it and threw it across the room, fearing the accused would strangle her with it. The accused did not notice that she had thrown it. He eventually put her back on the bed. She promised she would not run away if he did not tie her back to the bed. He was mumbling about something, but she could not comprehend what he was saying. He lay on top of her. She started crying and he smacked the bottom of her jaw and covered her mouth with his hands saying, 'Shut up and keep quiet if you don't want to get hurt'. He fondled and sucked her breasts and bit her left breast. She screamed and he slapped her and then covered her nose and mouth with his hand causing her to have trouble breathing. He made her suck his penis again.

772 The accused dragged Ms M into the bathroom and made her have a shower. He made her suck his penis while she did so. He urinated on her back and hair. He showered her and then took her back into the bedroom. He lay on top of her and slapped her again. He then told her to take the star‑shaped earring out of her left ear. It was a small silver five pointed star stud earring which she wore in the top of her left ear. He said to her 'Take the earring out bitch'. She did so and gave it to him. She did not see what he did with it or where he put it, but he did not get off her.

773 After Ms M gave the accused the earring, he started to kiss her again and was licking and sucking her breasts. The accused asked her if she wanted to have sex with him and if she wanted him to wear a condom. She did not respond. He then tried to engage in penile vaginal penetration with her, but was unable to maintain his erection.

774 Not long after that, the accused fell asleep. Ms M tried to move, and the accused woke up. He told Ms M to suck his penis again and, eventually he ejaculated in her mouth. A short time later the accused fell asleep again. Eventually, Ms M noticed the room getting lighter as it was almost daylight. She moved and he woke up. He took her to another room and made her lie down, smacking her buttocks.

775 He put his left hand over her mouth and digitally penetrated her anus. He told her that he was going to keep her and that she would be fine if she did what he said. The accused then went out of the room and it sounded like he was in the kitchen. Ms M loosened the ropes on her wrists and her left hand came free. She grabbed the clothes she could and her wallet and ran out of the house.

776 He called out to her, but she kept running. She turned and saw him running behind her. He was naked and carrying a rope. She ran to the neighbour's house and sought help from a couple who were sitting on their front patio. Police arrived shortly thereafter.

777 The accused submits that there are significant differences between the accused's attack on Ms M and the State's allegations in this case which mean that the propensity evidence is not probative of the accused's guilt of an offence against Ms Dodd. These differences include:

(1) Ms M was significantly older at the time of the offence than Ms Dodd was at the time she disappeared;

(2) the accused had been drinking alcohol and smoking cannabis before he assaulted Ms M, whereas there is no evidence of him using alcohol or drugs on 29 July 1999;

(3) the assault on Ms M took place at night, while Ms Dodd disappeared during the day;

(4) Ms M was a mature woman, whereas Ms Dodd was childlike in her appearance; and

(5) the offences against Ms M occurred eight years after Ms Dodd disappeared.

He submits that I should conclude that Ms M was a one‑off victim.

778 The accused also submits that there is a difference between the intention of the accused when he attacked Ms M and the State's case that he attacked Ms Dodd intending to kill her.

779 After taking all of these matters into account, I find that the propensity evidence persuades me that in 1999, the accused was the type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her. This would be for the purpose of subduing her or overpowering her so that she was incapable of resisting him and so that he could rape her.

780 Although the incident with Ms M occurred eight years after Ms Dodd disappeared, there is no evidence of any change to the accused's character or life which would justify me finding that he developed this propensity between 1999 and 2007.

781 This means that it is more likely that he unlawfully killed Ms Dodd in the course of a similar attack. However I agree with the accused's counsel that it is far less probative of an intention to kill Ms Dodd. I acknowledge that it is possible that a person could become so enraged during such an attack that they would form an intention to kill. However as the propensity evidence shows a propensity for physical violence in order to facilitate a sexual assault, I consider that it is much more likely that Ms Dodd died in the course of being attacked to facilitate her sexual assault, rather than as a result of an attack intended to kill her.

782 I also find that the propensity evidence proves that the accused is a person who would be likely to take an earring as a trophy from his victim. This would explain why an earring was removed from Ms Dodd's ear but not why it was left in Mr McConnell's ute. On the other hand, the earring may well have come out of Ms Dodd's ear during a struggle with the accused.

783 I have already found that the earring was not planted in the seat cover. The accused submits that the evidence does not enable me to exclude as a reasonable hypothesis that the earring was dropped in the car by a person other than Ms Dodd.

784 First, he submits that given the damage to the hook there should have been trace DNA on the earring consistent with injury to the ear when it was removed. I do not accept that injury to the wearer would have occurred when the earring was removed. The wire of the shepherd's hook is malleable and could be bent without cutting or injuring skin, even if I assume that the damage was done whilst it was in the ear of the wearer.

785 In any event, if this was so, there should have been trace DNA of whoever was the wearer on the earring and there was none. The absence of DNA on the earring proves nothing.

786 Alternatively, the accused submits that the shepherd's hook's bent shape, the age of the ute and the seat cover, the availability of earrings of the same type, and evidence of the number of people who had used the ute, means that it is possible that the earring was left in the car prior to or after 29 July 1999 by a person unrelated to Ms Dodd and that it sat in the crease between the bench seat and backrest until it was disturbed by the police when they removed the car seat cover from Mr McConnell's ute on 6 August 1999.

787 Isolated from other evidence, that would be a reasonable possibility. However when considered with the evidence that:

(1) Ms Dodd was wearing an identical earring on 29 July 1999;

(2) the accused was driving Mr McConnell's ute on that date;

(3) the accused had the opportunity to pick up Ms Dodd;

(4) the accused told the police he would have picked her up had he seen her;

(5) the accused has a propensity to violently assault female hitchhikers; and

(6) the accused has a propensity to seek an earring from such victims,

I find that it is not a reasonable possibility that the earring found on the seat cover was left there prior to 29 July 1999 or that it belonged to anyone other than Ms Dodd.

788 Over the years, the police considered that there were a number of suspects who could have been involved in the disappearance of Ms Dodd.

• Mr Richard Watson. The police arranged to speak to him and on his way to the appointment he crashed his car and died.[914]
• Mr George Woolston.
• Mr Clinton James Horn.
• Mr Nathan John Murphy.
• Mr Robin David Macartney. In 1999, he was considered a person of interest because he was arrested, charged and convicted for the murder of Lalita Horsman in Geraldton. As that was in a broad area which included Badgingarra, the investigators had cause to consider him a person of interest for the disappearance of Ms Dodd.
• Mr Macartney had left the body of Ms Horsman in sand dunes in Geraldton in December 1999. A number of Crime Stoppers reports nominated him as a person of interest for Ms Dodd's murder.
• The police bugged his prison cell in an attempt to gain evidence. Some other inmates, who were not reliable informers, had alleged that Mr Macartney had said certain things to them about his involvement with Ms Dodd and there was also an allegation that he had newspaper clippings relating to Ms Dodd. Whilst Detective Sergeant Buck was the investigating officer, he spoke to Mr Macartney in prison and asked if he wanted to participate in an electronic record of interview. He declined to take part in a formal interview, but he was happy to take questions and speak to the police.[915]
• In Detective Sergeant Buck's opinion there was nothing to implicate Mr Macartney in the offence but he could not be excluded either. Mr Macartney is now dead.
• I also note that Geraldton is approximately 240 km from Badgingarra and it is another approximate 10 km from Badgingarra to where Ms Dodd went missing. It would have to be an amazing coincidence for Mr Macartney, who I understand resided in Geraldton or nearby, to have been on North West Road at the time Ms Dodd went missing.
• Mr Wayne Tynan. He was Mr Macartney's former brother‑in‑law and Mr Macartney nominated him as a person who may have been involved in Ms Dodd's disappearance.[916]
• Mr Mark Pendleton. Mr Pendleton was a known paedophile. In 1999 he was a teacher in Moora. He was on sick leave on 29 July 1999.[917]
• Mr Gregory Earnest Drage. Mr Drage had a long record of offending, including convictions for sexual assault. He regularly drove from South Hedland to Perth. The direct route would not take him along North West Road, but he could have taken a detour. He died on 21 March 2010 before the police had interviewed him about Ms Dodd's disappearance.[918]

790 There were also many shearers and itinerant farm workers in the area, not all of whom were spoken to and eliminated as persons who may have killed Ms Dodd.

791 In respect of these possible suspects, the only evidence before me of them and their movements was hearsay. In fairness to the accused and because there was no objection to the admission of the evidence, I have taken it into account. However I give the evidence limited weight because it is hearsay.

792 The result is that I find that there are other people who theoretically could be responsible for Ms Dodd's disappearance, but there is no evidence that they were so involved.

Conclusion as to whether the accused killed Ms Dodd

(1) in 1999 the accused had a propensity to pick up a lone female hitchhiker and to violently and seriously assault her so that she could not resist his sexual assault;

(2) the accused was alone in Mr McConnell's ute on North West Road in the area of the location of the 961 marker and 2 km east of it at about midday on 29 July 1999;

(3) on the same date Ms Dodd was picked up by a person in a vehicle from North West Road in the area of the 961 marker and 2 km east of it and killed by that person;

(4) at the time she was picked up by her killer Ms Dodd was wearing ankh silver earrings with a blue stone in the middle of the cross;

(5) on 5 August 1999 the police seized the car seat cover from Mr McConnell's ute and it had on it an ankh earring;

(6) the ankh earring which was found on the car seat cover was identical to one of the earrings worn by Ms Dodd on 29 July 1999; and

(7) it is not a reasonable possibility that the ankh earring belonged to anyone other than Ms Dodd.

794 Given these findings, I am satisfied beyond reasonable doubt that the accused picked up Ms Dodd and killed her on 29 July 1999 by some unknown means.

795 In coming to this finding I have taken into account not just the above circumstances, but all the proven circumstances. I consider that some of those circumstances favour the accused. In particular, I have taken into account that:

(1) there was a narrow window of time for the accused to encounter and pick up Ms Dodd;

(2) there was a limited period of time for him to then dispose of her body;

(3) people who spoke to the accused at the roadhouse shortly afterwards did not notice anything unusual in his demeanour;

(4) despite extensive searches, nothing has been located to connect the accused with Ms Dodd, apart from the earring;

(5) there are other suspects for the killing of Ms Dodd; and

(6) the accused suffers from the disadvantage of defending the State's allegations after a delay of 18 years.

796 I also take into account that much of the accused's account to police of what he did on 29 July 1999 is true or consistent with the facts I have found. However that is not of great weight because there is only approximately an hour and a half in which time the offence was committed and for which the accused could not honestly tell the police what he did and when he did it. Further, I have found that contrary to what the accused told the police, he was not in Moora at about midday on 29 July 1999.

797 I must weigh all the circumstances and after doing so, it is my judgment that there is no reasonable inference that I can draw which is consistent with the accused's innocence.

798 In particular, I do not consider it a reasonable inference to draw that the accused could be innocent when the evidence proves the following matters. They are, that he was driving alone on the same stretch of isolated road that Ms Dodd was walking on when she disappeared, that he has a propensity to pick up female hitchhikers and seriously assault them and compelling evidence that Ms Dodd was in Mr McConnell's ute in the form of the ankh earring which Ms Dodd was wearing the day she went missing being found in the ute.

Conclusion as to whether the accused intended to kill Ms Dodd

799 As I stated at the commencement of this judgment, the State put its case on the basis that if I was satisfied beyond reasonable doubt that the accused killed Ms Dodd, then I should find him guilty of wilful murder. I can only find him guilty of wilful murder if I am satisfied beyond reasonable doubt that the accused intended to kill Ms Dodd when he caused her death.

800 The State submits that the accused's lie to the police that Ms Dodd had not been in his car on 29 July 1999 and his conduct since that date in concealing Ms Dodd's death are words and actions that are demonstrative only of an intention to kill her.[919]

801 I am satisfied that the accused deliberately lied to the police when he told them that he had not picked up any hitchhiker and therefore Ms Dodd had not been in Mr McConnell's ute on 29 July 1999. I am satisfied that the lie related to a material issue. I am satisfied that the lie sprang from a realisation of guilt and fear of the truth. That is, I am satisfied that the accused knew that unless he lied about that matter he would be unable to provide any innocent explanation for him picking up Ms Dodd on North West Road and his actions thereafter. There is, however an issue as to whether the lie has been shown to be a lie by independent evidence, that is, by evidence other than the evidence which is to be supported by the lie. That is because it has been proven to be a lie by a combination of all the evidence in the case.

802 I am also satisfied that the accused's post‑offence conduct in concealing Ms Dodd's death for over 18 years is deliberate conduct which springs from a realisation of his guilt and a fear of the truth. Clearly that conduct relates to a material issue in the trial. However there is also an issue as to whether the post‑offence conduct has been proven by independent evidence; that is evidence other than the evidence which is to be supported by the conduct.

803 It is unnecessary for me to resolve the issues relating to the lie and the post‑offence conduct, because I am satisfied that even if they could be used to prove the intention of the accused when he killed Ms Dodd, the lie and the post offence conduct, in conjunction with all other relevant evidence, do not satisfy me that the accused intended to kill Ms Dodd.

804 That is because I find that it is a reasonable inference to draw from the evidence that the accused picked up Ms Dodd in order to sexually assault her and that he killed her in the prosecution of that unlawful purpose, without necessarily forming an intention to kill her.

805 It is my judgment that the accused's lie and post‑offence conduct is equally consistent with him killing Ms Dodd in the course of him subduing her for the purpose of sexually assaulting her as it is with him forming an intention to kill her. On the other hand, the propensity evidence and the evidence as a whole satisfies me that the accused has a propensity to use considerable violence against a victim in the course of a sexual assault. It does not satisfy me that the accused has a propensity to form an intention to kill and to kill for no other reason.

806 Consequently, I am not satisfied beyond reasonable doubt that when the accused killed Ms Dodd, he intended to kill Ms Dodd.

Conclusion as to whether the accused intended to cause Ms Dodd grievous bodily harm or whether he killed her in the other circumstance which constitutes murder

807 The accused may be found guilty of murder either on the basis that when he killed Ms Dodd he intended to cause her grievous bodily harm or alternatively that Ms Dodd's death was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger life.

808 There is a significant difference between the two bases. The first requires me to be satisfied beyond reasonable doubt that the accused had a subjective intention to cause grievous bodily harm to Ms Dodd. The alternative does not require me to be satisfied beyond reasonable doubt that the accused had such a subjective intention. Rather, it is necessary for me to be satisfied beyond reasonable doubt that the accused caused Ms Dodd's death by means of an act done in the prosecution of an unlawful purpose[920] and that the act which caused death was of such a nature as to be likely to endanger human life. That is an objective test.

809 I am satisfied beyond reasonable doubt that the only inference to draw from the evidence is that the accused's act which caused Ms Dodd's death was an act done in his prosecution of an unlawful purpose. That is, it was done in the course of him carrying out an unlawful purpose, which was to subdue or overpower Ms Dodd by physically assaulting her. The purpose being, ultimately, to sexually assault her.

810 I am further satisfied beyond reasonable doubt that the act causing death must have been of such a nature as to be likely to endanger human life. There is no evidence before me which would enable me to conclude that the act causing death was an accident, or anything of that nature.

811 Further I am satisfied beyond reasonable doubt that at the time the accused did the act, his intention must have been to cause Ms Dodd grievous bodily harm. This is because his act or acts must have been done with the intention of preventing her from resisting his further assault on her. He could not have thought that he would be able to do that unless he caused her grievous bodily harm.

812 Thus the facts found by me prove beyond reasonable doubt both of the circumstances required for proof of murder.

813 As I noted earlier in my reasons, there is no evidence which could establish that the killing of Ms Dodd was lawful. I am satisfied beyond reasonable doubt that it was unlawful.

814 It follows from the above findings that the accused is not guilty of wilful murder but guilty of murder.

[1] Ms Dodd's name on her birth certificate was Hayley Marie Stephenson but she was usually known by her father's last name of Dodd; ts 164, 168.

[2] This is the usual way a person charged with a criminal offence is referred to in Western Australia during a criminal trial. It does not imply that he is guilty of the offence with which he is charged.

[3] Criminal Procedure Act 2004 (WA) (CPA) s 118.

[4] CPA s 120(2).

[8] Stewart v The King [1921] HCA 17; (1921) 29 CLR 234; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 299; MJS v The State of Western Australia [2011] WASCA 112 [144]. The rule is reflected in the Evidence Act 1906 (WA) s 8.

[10] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 198.

[12] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [72] ‑ [79].

[13] Noto v The State of Western Australia [2006] WASCA 278 [22].

[14] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235.

[16] Davies v The King [1937] HCA 27; (1937) 57 CLR 170, 181; Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 445; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [56] ‑ [57], [218].

[17] For example, Mr and Mrs Smith, Mr Bradley Davies and Mr Bruce Smith.

[19] Criminal Code s 270, s 277 and s 278 (rep).

[22] Criminal Code s 270, s 277 and s 278 (rep).

[28] Criminal Code s 270, 277 and 278 (rep).

[34] Attachment 1 is a road map of the Badgingarra/Moora area.

[47] ts 876, 1061, 1067, 1309 and exhibit 150.

[64] I will refer to Mr Bradley Hammond as Bradley, and his father, Mr Keith Hammond, as Keith to distinguish between them. Bradley was also known as Brad.

[76] ts 178 ‑ 179; exhibits 3.1 ‑ 3.4, 4.1 and 4.2.

[92] ts 233; exhibit 25. A copy of Ms Frederickson's drawing of the earrings is attached to these reasons as part of attachment 2.

[126] These include Mr Albert Rowland, ts 426, and Mrs Eva Gerrard, ts 430.

[151] The town of Jurien Bay was referred to as Jurien by some witnesses.

[153] Mr Skipworth was fairly vague about where and when he saw Mr Wyatt.

[156] I have estimated this distance by examining exhibit 133, and exhibit 17.

[157] On exhibit 17 it looks as if Kolburn Road turns into Agaton Road when it crosses North West Road. On exhibit 133 the two roads are slightly offset with Kolburn Road terminating where it meets the southern side of North West Road and Agaton Road commencing a short distance to the east but on the northern side of North West Road.

[199] I will refer to the 'location of the 961 marker' as opposed to the '961 marker' as the 961 marker was not in existence in July 1999.

[214] A 'serial' was what the WA police then termed a sequentially numbered written task which officers involved in an enquiry were required to complete and then report on. For example, this serial was the task given to officers to interview and obtain a statement from Mr Smith. When the relevant officer reported on having completed the serial he noted that Mr Smith had told him that he had been travelling at 118 km per hour. However this information was not contained in Mr Smith's statement.

[223] This time is confirmed by Constable Shane Wheeler who was at the farm between 2.50 ‑ 3.00 pm and saw two Telstra vehicles leaving.

[225] Chisel was Mr Burnett's nickname.

[230] ts 547, 2216; exhibits 69 and 259.

[273] ts 768 ‑ 772; exhibits 100.1 and 100.2.

[277] Exhibit 60. It is 58 km from Badgingarra to Moora. At 100 km per hour it takes 35 minutes to travel 58 km.

[284] Mr Smiler gave evidence (ts 1168); exhibit 107.3. He was not asked about his movements on 29 July 1999.

[295] ts 858 ‑ 859; exhibits 124.1 and 124.2.

[382] The date of seizure is not in evidence but the swabs taken from the motorcycle were received by PathWest on 3 February 2014; ts 1976.

[400] ts 863. The accused told police that these offences were against Mr McConnell's daughter and another female child relative.

[433] Attachment 3 is a map of Moora with relevant points marked on it (exhibit 19).

[446] For an EFTPOS transaction at 10.05 am, the variance is 15 minutes. This is explainable by the fact that neither the till nor the ETPOS terminal recorded transaction times in seconds. For an EFTPOS transaction at 12.35 pm the time on the record of purchase is unclear and it may read either '12.51' or '12.54'. If it is 12.51 pm, it would be consistent with the time variance I have found for other transactions on till A. If it is 12.54 pm, there would be a 19 minute variance between the till clock time and the time on the EFTPOS record of purchase. This would be inconsistent with the time variance I found between the till clock time and the time on the EFTPOS records of purchase for other transactions. Thus, I am of the opinion that it is likely that it is 12.54 pm.

[447] For some transactions there was a three or five minute time difference between the time printed on the till roll and the time on the EFTPOS record of purchase. This is explainable by the fact that neither the till nor the ETPOS terminal recorded transaction times in seconds.

[450] In his statement of 3 August 1999 he said until Sunday.

[452] The parties also identified a transaction on till roll B which is recorded at 12.44 pm but in corrected terms would have finished at 12.48 pm. I have disregarded it as being too late to be relevant.

[462] For example, ts 1127 ‑ 1128, ts 1136.

[464] The till prints times using the 24 hour clock but I will use the 12 hour clock for consistency.

[470] Mr Greay testified that he and each of his employees had a different number.