WARK -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 19 (21 February 2020)

(b) Her Honour was satisfied that the appellant drove to Moora in Mr McConnell's vehicle on 29 July 1999, visited various retailers and conducted transactions with them. He then drove from Moora to his home. A crucial matter for her Honour to determine was whether 'the timing of [the appellant's] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm' [433].

(c) Her Honour said that 'if [her Honour accepted] that [the appellant] transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am'. Her Honour said the appellant's alibi was false in that 'he did not leave Moora after [12.00 noon]' [434].

(d) Her Honour said that if the appellant left Moora at 11.30 am and drove to the location of the 961 marker at 80 km per hour, the appellant 'would have arrived at that area at around 12.07 pm' [435].

(e) Her Honour found that the appellant 'had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm' [436]. Her Honour said that '[if the appellant] did not go to [the Pioneer 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' [437].

Given [the appellant'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.

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 [438] ‑ [439].

1. Next, her Honour considered whether, if the appellant did encounter Ms Dodd on North West Road, he had sufficient time to kill Ms Dodd and dispose of her body before he arrived at the Badgingarra Roadhouse at 1.36 pm [440].
2. The trial judge's reference at [438] to '[the appellant's] conviction for serious offences' was to the offences the appellant committed against Ms M in 2007.
3. Her Honour's reasons at [438] and [439] must be read together. They relate, relevantly, to:

(a) the appellant's assertions, in his out‑of‑court statements to police, as to his dealings in Moora and the timing of his movements on 29 July 1999; and

(b) her Honour's comments that she was 'not minded to accept' the appellant's assertions unless there was 'independent evidence' to support them.

1. It is apparent, when [438] and [439] are read together, that, by reason of the appellant's conviction for the offences he committed against Ms M in 2007 and the fact that the appellant's alleged alibi was embodied in self‑serving out‑of‑court statements that were not made on oath or affirmation, the trial judge was 'not minded to accept':

(a) the appellant's assertions as to the businesses he visited in Moora; or

(b) the appellant's assertions as to the time he 'did certain things',

without 'independent proof' of the truth and accuracy of his assertions.

1. Her Honour's reference at [439] to the time the appellant 'did certain things' appears, in context, to relate to the appellant's assertions as to the time he arrived in Moora, the time he visited the businesses he claimed to have visited, the time he departed from Moora and the time he arrived home from Moora.
2. The expression 'not minded to accept' at [438] and [439] connotes that the trial judge was 'not inclined to accept' the appellant's assertions without 'independent evidence'.
3. The expression 'independent evidence' at [438] and [439] indicates that her Honour was 'not minded [or inclined] to accept' the appellant's assertions unless those assertions were corroborated by other evidence which her Honour accepted.
4. The trial judge proceeded to make findings at [438] that the appellant did in fact visit the video store, Australia Post and DJs Butcher because there was 'independent proof' that he did so and that the appellant did in fact visit the Bankwest branch and Supa Valu because that was his usual practice when he went to Moora. Her Honour did not make a finding that the appellant visited the Pioneer Bakery because there was no 'independent evidence' that he did so. Her Honour merely found that it was 'possible' that he visited the Pioneer Bakery.
5. Her Honour made a conditional finding at [434] that 'if [her Honour accepted] that [the appellant] transacted business in Moora at the places he told the police he visited, he is likely to have left Moora around 11.30 am'. In other words, subject to the condition that her Honour accepted that the appellant visited all of the businesses he claimed to have visited, her Honour found that the appellant was likely to have left Moora at 'around 11.30 am'. The conditional finding as to the time the appellant was likely to have left Moora (if he did in fact visit all of the businesses he claimed to have visited), namely at 'around 11.30 am', was based on other findings and on an assumption that her Honour made.
6. In particular, the trial judge's conditional finding that the appellant was likely to have departed from Moora at 'around 11.30 am' was based on:

(a) her Honour's acceptance (having regard to 'independent evidence') that the appellant was in fact present in Moora on the morning of 29 July 1999;

(b) her Honour's acceptance (having regard to 'independent evidence' and the appellant's usual practice) that the appellant did in fact visit all of the businesses he claimed to have visited, except the Pioneer Bakery; and

(c) her Honour's assumption, favourable to the appellant, that the appellant did in fact visit the Pioneer Bakery before he left Moora.

1. After finding that the appellant was likely to have left Moora at 'around 11.30 am', her Honour said she was satisfied that the appellant's alibi was false in that he did not leave Moora, as he had asserted, after 12.00 noon. Her Honour added that there was no reasonable possibility that the alibi was true. I note that there was no 'independent evidence' at trial that the appellant left Moora after 12.00 noon or that he arrived home from Moora at 'around 1 pm'.
2. There is some ambiguity as to whether the trial judge's reference at [438] to the appellant's conviction for the offences he committed against Ms M in 2007 related to:

(a) the fact of his conviction for those offences; or

(b) the evidence of the facts and circumstances of those offences that was admitted at the trial as propensity evidence.

1. I consider that her Honour's reference at [438] to the appellant's conviction was to the fact of his conviction for the offences he committed against Ms M in 2007. Her Honour was not referring to the evidence of the facts and circumstances of those offences that was admitted at the trial as propensity evidence. I am of that view for the following reasons. First, as counsel for the State acknowledged at the hearing of the appeal (appeal ts 99, 129), the prosecutor did not submit to her Honour that her Honour could or should use the propensity evidence to impugn the appellant's credibility and, on that basis, discount or reject his alibi unless his assertions as to the time he arrived in Moora, the businesses he visited in Moora and the time he departed from Moora were supported by 'independent evidence'. The State's case and the appellant's case at trial (and the submissions of the prosecutor and defence counsel) were concerned with whether and, if so, to what extent the propensity evidence (either by itself or having regard to other evidence) was probative of the appellant being the type of person who in 1999 was likely to have committed the offence charged. Secondly, if her Honour had intended to rely upon the propensity evidence in connection with the appellant's alibi, her Honour would have referred to and discussed (in the context of her decision, in effect, that it was necessary for the alibi to be supported by 'independent evidence') the inclination or predisposition that the appellant manifested in 2007 and not merely have made a brief reference to the appellant's conviction.
2. As I have mentioned, at the trial the prosecutor tendered in evidence, as part of the State's case, the appellant's out‑of‑court statements to police. The statements included the appellant's alleged alibi. Also, as I have mentioned, where an accused gives, adduces or points to evidence of an alibi, no onus of proving the alibi rests on the accused. The burden of proving the accused's guilt beyond reasonable doubt remains upon the State. It is necessary for the State to disprove the alibi. The State must eliminate any reasonable possibility that the alibi is true before the accused can be convicted.
3. In the present case, the appellant did not carry or bear any onus of proving his alleged alibi. The appellant was not obliged to support his alibi by adducing or referring to 'independent evidence' or corroboration as a precursor to her Honour considering whether there was at least a reasonable possibility that the alibi was true.
4. I accept that the trial judge was entitled to take into account, in deciding whether the State had disproved the appellant's alibi (including in deciding whether the State had established that the appellant did not visit some of the businesses he asserted he had visited and in deciding whether the State had established that the appellant did not leave Moora after 12.00 noon), the fact that the appellant's alibi was embodied in self‑serving out‑of‑court statements he made to the police and not in sworn or affirmed evidence. The weight to be given to the appellant's self‑serving out‑of‑court statements was a matter for her Honour to consider and determine. Her Honour was also entitled to give the exculpatory parts of the out‑of‑court statements less weight than the inculpatory parts. Her Honour could properly take into account her findings of fact in relation to other relevant and admissible evidence adduced at the trial, in addition to the appellant's alleged alibi not having been verified by sworn or affirmed evidence or tested by cross‑examination. However, her Honour was not entitled to approach the consideration and determination of the weight to be given to the appellant's alleged alibi on the basis that, the alibi not having been verified by sworn or affirmed evidence, it was necessary for the appellant to support the alibi by adducing or referring to 'independent evidence' or corroboration. I am satisfied that, on a fair reading of the relevant passages in her Honour's reasons, considered as a whole, her Honour did approach the consideration and determination of the weight to be given to the appellant's alleged alibi on that impermissible basis. Her Honour's approach imposed on the appellant, in effect, an onus to adduce independent evidence and, further, was inconsistent with the Longman warning which her Honour correctly gave herself at [56] - [61]. Those material errors of law produced a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act, in that the appellant did not receive a trial according to law. See Filippou [14], where French CJ, Bell, Keane and Nettle JJ said in relation to the New South Wales equivalent of s 30(3)(c) that the provision 'covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial (See, eg, Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [45])'.
5. In Hall v Braybrook,[65] Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings. See also Hall (648) (Fullagar J); Dawson v The Queen,[66] Phillips v The Queen.[67]
6. In the present case, the evidence relating to the appellant's conviction in 2007 was evidence of, amongst other things, the appellant's bad character. The evidence of the appellant's conviction and of the facts and circumstances of his offending against Ms M was adduced at the trial, pursuant to s 31A of the Evidence Act, because the evidence was 'propensity evidence', as defined in s 31A(1), and the criteria specified in s 31A(2) were satisfied. In particular, the evidence (having regard to other evidence adduced by the State at the trial) was evidence of an inclination or predisposition that the appellant had in 1999 when he allegedly committed the offence charged. As I have mentioned, the evidence of the appellant's conviction and of the facts and circumstances of his offending against Ms M was correctly admitted, pursuant to s 31A, as evidence of that inclination or predisposition. The propensity evidence was probative of the appellant being the type of person who in 1999 was likely to have committed the offence charged. However, the evidence of the appellant's conviction in 2007 was not admitted on the basis that it was relevant to his credibility generally in 1999 or to his credibility specifically in 1999 in relation to the assertions he made in his out‑of‑court statements to the police. As I have mentioned, the weight to be given to the appellant's self‑serving out‑of‑court statements was a matter for her Honour to consider and determine. However, her Honour was not entitled to approach the consideration and determination of the weight to be given to the appellant's alleged alibi on the basis that, the appellant's conviction in 2007 having shown him to be a person of bad character, it was necessary for the appellant to support the alibi by adducing or referring to 'independent evidence' or corroboration. I am satisfied that, on a fair reading of the relevant passages in her Honour's reasons, considered as a whole, her Honour did approach the consideration and determination of the weight to be given to the appellant's alleged alibi on that impermissible basis. Her Honour relied upon the convictions as evidence of the appellant's bad character. The reliance upon the convictions for that purpose was wrong as a matter of law. Her Honour's approach imposed on the appellant, in effect, an onus to adduce independent evidence and, further, was inconsistent with the Longman warning which her Honour correctly gave herself at [56] - [61]. The material errors of law I have identified produced a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act, in that the appellant did not receive a trial according to law. See Filippou [14].
7. I turn to consider whether, despite the miscarriages of justice I have described in the context of ground 3, 'no substantial miscarriage of justice has occurred', within s 30(4) of the Criminal Appeals Act.
8. I am satisfied that no substantial miscarriage of justice has occurred in relation to that part of the appellant's alibi which concerned the businesses which the appellant asserted he had visited in Moora. I am of that opinion because her Honour assumed, favourably to the appellant, that the appellant did in fact attend the Pioneer Bakery (where he purchased two pies) and her Honour accepted that the appellant did in fact visit all of the other businesses he claimed to have visited. So, despite her Honour indicating that she was 'not minded to accept' that the appellant had visited all of the businesses he claimed in his out of court statements to have visited without independent proof that he did so [438], her Honour did, in fact, consider and weigh the appellant's alleged alibi on the basis that he did in fact visit all of the businesses he claimed to have visited. I am persuaded to the criminal standard of proof that the appellant has not been denied a chance of acquittal which was fairly open to him. See Filippou [15]. I have put aside her Honour's failure to refer to the appellant's visit to the newsagency for a brief period to obtain a tax pack because, as I have mentioned, that failure was an immaterial omission.
9. However, I am not satisfied that no substantial miscarriage of justice has occurred in relation to that part of the appellant's alibi which concerned the time he departed from Moora and the time he arrived home from Moora.
10. As I have mentioned, the appellant asserted in the statements he gave to police on 3 and 5 August 1999 that he was 'pretty sure' that he left Moora after 12.00 noon; the journey between his home and Moora takes him just over half an hour and would not take more than 45 minutes; and that he arrived home from Moora at 'around 1.00 pm'. Also, as I have mentioned, there was no 'independent evidence' at the trial that the appellant left Moora after 12.00 noon or that he arrived home from Moora at 'around 1.00 pm'. The trial judge found that if the appellant had visited all of the businesses he claimed to have visited then he was likely to have left Moora 'around 11.30 am' [434]. Her Honour therefore rejected the appellant's alibi that he did not leave Moora until after 12.00 noon. Further, her Honour found that if the appellant 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' [435]. Her Honour then found that the appellant had the opportunity to encounter Ms Dodd on North West Road at 'about 12.05 pm' [436]. Her Honour acknowledged that the timeframe for the appellant to encounter and pick up Ms Dodd was 'extremely tight' [436]. Her Honour found at [321] 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'. Her Honour formulated the crucial question in relation to timing at [433] when she said that '[the] matter for [her Honour] to determine is whether the timing of [the appellant's] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm'.
11. Her Honour's finding that if the appellant 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' [435], in response to the crucial question she posed, namely 'whether the timing of [the appellant's] movements in Moora would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm' [433], demonstrates that her Honour's finding of opportunity depended, critically, upon the appellant having left Moora by not later than about 11.35 am. Her Honour's finding was merely that the appellant was likely to have left Moora around 11.30 am if he had visited all of the businesses he claimed to have visited [435]. As I have mentioned, although the appellant's alleged alibi was not 'cast iron', if his assertion as to the time at which he began his return journey was accurate, then (having regard to her Honour's finding as to the speed at which the appellant ordinarily drove Mr McConnell's vehicle between the appellant's home and Moora, her finding as to the speed at which the appellant drove on the day in question and her finding 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) the alleged alibi would raise a reasonable doubt as to his guilt.
12. In the circumstances, the possibility cannot be excluded beyond reasonable doubt that if the trial judge had not impermissibly approached the consideration and determination of the weight to be given to the appellant's alleged alibi on the basis that it was necessary for the appellant to support the alibi by adducing or referring to 'independent evidence' or corroboration, then her Honour may not have found that the appellant departed from Moora at a time (namely by not later than about 11.35 am) that would have enabled him to encounter Ms Dodd on North West Road between 11.40 am and 12.10 pm. It is conceivable that her Honour's impermissible approach to the consideration and determination of the weight to be given to the appellant's alleged alibi influenced at least some of her Honour's findings in relation to the timing of the appellant's movements while he was in Moora and the timing of his departure from Moora. It is necessary for the issues relating to the appellant's alleged alibi (in particular, whether the State disproved the alibi by eliminating any reasonable possibility that the alibi was true) to be reconsidered according to law. That is not a task which this court can adequately undertake by reference to the transcript. In any event, the proviso in s 30(4) of the Criminal Appeals Act does not permit this court to exercise the function of the fact finding tribunal at the trial. See Lane [48]. It follows that the possibility that the appellant has been denied a chance of acquittal which was fairly open to him cannot be excluded beyond reasonable doubt. See Filippou [15].
13. Ground 3 has been made out.
14. I reiterate, for completeness, that a surprising feature of her Honour's reasons is that, despite the interconnections between the evidence in relation to the appellant's alleged alibi, the evidence as to the appellant's alleged opportunity and the evidence about the earring on the seat cover, in the context of the State's circumstantial case, her Honour did not rely upon the evidence about the earring on the seat cover in concluding that the appellant's alleged alibi was false and that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm. Relevantly, in relation to the appellant's alleged alibi, her Honour did not rely upon the following facts and circumstances:

(a) on 6 August 1999, the police seized the seat cover from Mr McConnell's vehicle and the cover had on it an ankh earring;

(b) the ankh earring found on the seat cover was identical to one of the earrings worn by Ms Dodd on 29 July 1999;

(c) the appellant was driving Mr McConnell's vehicle on 29 July 1999;

(d) the appellant told the police that he would have picked up Ms Dodd had he seen her; and

(e) the appellant had an inclination or predisposition to pick up a lone female hitchhiker in his motor vehicle, in an isolated location, and violently and seriously assault her for the purpose of overpowering her so that he could rape her, and to seek to obtain an earring from the hitchhiker,

in considering whether the State had proved beyond reasonable doubt that the appellant's alleged alibi was false.

1. In my opinion, those facts and circumstances were very significant items of evidence in the proof of the State's circumstantial case against the appellant.
2. However, the trial judge merely used those facts and circumstances, in combination with her Honour's finding that the appellant had the opportunity to pick up Ms Dodd, in deciding that it was not a reasonable possibility that the earring found on the car seat cover was left there prior to 29 July 1999 [787] and that it was not a reasonable possibility that the earring belonged to anyone other than Ms Dodd [787], [793].
3. As I have mentioned, the prosecutor did not submit to her Honour that her Honour could or should take into account, in evaluating the weight to be given to the appellant's alleged alibi and in deciding whether the State had disproved the appellant's alibi (including in deciding whether the State had established that the appellant did not visit some of the businesses he asserted he had visited and in deciding whether the State had established that the appellant did not leave Moora after 12.00 noon), the appellant's inclination or predisposition (as revealed by the propensity evidence) as a matter adversely affecting his credit. I will, however, briefly make some comments about the matter.
4. As I have mentioned:

(a) The relevant inclination or predisposition revealed by the propensity evidence was that the appellant was the type of person who would be inclined or predisposed to pick up a lone female hitchhiker in his motor vehicle, in an isolated location, and violently and seriously assault her for the purpose of overpowering her so that he could rape her, and to seek to obtain an earring from the hitchhiker.

(b) The appellant's violence and depravity towards Ms M were the external manifestation of a perverted state of mind to engage in conduct of that kind against a lone female whom he had picked up in his vehicle in an isolated location.

(c) It is highly likely that the appellant had in 1999 the violent and depraved inclination or predisposition he manifested in 2007.

(d) The evidence as to the appellant's conduct in relation to Ms M in 2007 could rationally affect, to a significant extent, the assessment of the probability that:

(i) on 29 July 1999, the appellant picked up Ms Dodd in Mr McConnell's vehicle at the place where she disappeared on North West Road;

(ii) after picking up Ms Dodd, the appellant detained and assaulted her; and

(iii) the appellant killed Ms Dodd in the course of prosecuting that unlawful purpose.

1. At common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. The rationale is that the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence charged. A propensity warning would contradict the basis on which the evidence was admitted. See KRM v The Queen.[68] The same reasoning applies to evidence admitted generally as propensity evidence or relationship evidence under s 31A of the Evidence Act. If the evidence is admitted generally and satisfies the test for admissibility under s 31A, no propensity warning is required. See Noto v The State of Western Australia;[69] Upton v The State of Western Australia;[70] BSD v The State of Western Australia [No 2].[71]
2. Propensity evidence and relationship evidence may be admitted under s 31A of the Evidence Act to rebut lines of defence of which the State has notice and possible lines of defence. See Donaldson v The State of Western Australia.[72]
3. In Santos v The State of Western Australia [No 2],[73] the appellant and a co‑offender, Joseph Micalizzi, were convicted after a joint trial of two counts of possession of a prohibited drug with intent to sell or supply it to another. The appellant piloted a light aircraft from Bankstown airport to Jandakot airport. Mr Micalizzi was his only passenger. Shortly after landing, police intercepted and searched the aircraft. In a black bag, in the rear cargo area of the aircraft, police located about 9 kg of ecstasy and about 22 kg of methylamphetamine. The appellant told the police that his passenger was on a joy flight from New South Wales to Western Australia. The appellant also told the police that he did not know the name of his passenger, that the black bag was not his and that he did not know whether the passenger had any bags when he boarded the aircraft. There was no forensic evidence to link either the appellant or Mr Micalizzi with the black bag containing the drugs. At the trial, propensity evidence concerning two prior drug offences committed by the appellant was adduced pursuant to s 31A of the Evidence Act. The purpose of the propensity evidence, in combination with other evidence, was to demonstrate that the appellant was involved in the business of drug dealing. The appellant did not give evidence at trial. This court dismissed the appellant's appeal against conviction. In particular, this court rejected the appellant's contention that the trial judge had erred in ruling that evidence as to the appellant's prior convictions was admissible under s 31A. On that point, McLure P (Buss JA relevantly agreeing & Mazza JA agreeing) said that the propensity evidence was significantly probative in two respects. First, the propensity evidence was capable of supporting an inference that the appellant was involved in, and financially benefited from, activities connected with the commercial distribution of prohibited drugs. Secondly, the propensity evidence was capable of completely undermining the innocent explanation of the objective facts which the appellant gave to the police in his out‑of‑court statements [35].
4. In the present case, her Honour directed herself in accordance with KRM, Noto, Upton and BSD. See her Honour's reasons at [54] ‑ [55].
5. The appellant's inclination or predisposition (which was manifested in the serious offences he committed against Ms M in 2007 and which he was highly likely to have had in 1999) was not the inclination or predisposition of an honest or decent person.
6. However, in this appeal, it is unnecessary to decide, and it is undesirable in the absence of submissions from the parties to express an opinion on, whether the inclination or predisposition, in combination with the fact that the out‑of‑court statements were made by the appellant in the context of a police interview in connection with Ms Dodd's disappearance, was capable of casting doubt on the credibility and reliability of the appellant's assertions to the effect that he had visited numerous businesses in Moora on the morning in question and, consequently, he did not leave Moora until after 12.00 noon and, therefore, he did not have the opportunity to encounter Ms Dodd at the material time on North West Road.

1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen (492 - 493); Zaburoni v The Queen;[74] GAX v The Queen.[75]
2. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[76]
3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[77]
5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[78] SKA [13].
6. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 ‑ 495). See also Hillier [20]; Fitzgerald v The Queen;[79] Baden‑Clay [66].
7. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
8. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[80] GAX [25].
9. The nature and extent of the appellate court's task, in a particular case, will be informed by:

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant's state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].

1. It is true that there was no direct evidence as to the appellant's involvement in Ms Dodd's disappearance. I accept that it was not open to the trial judge to find the appellant guilty unless no explanation except guilt was reasonably compatible with the circumstances.
2. The State's circumstantial case relied upon, amongst other things, the allegation that one of Ms Dodd's hairs had been found in Mr McConnell's vehicle. The hair in question, which was labelled hair 13, was located by Ms Horner on 27 September 2013 when she examined material, including 93 hairs and fibres, that police had collected on 6 August 1999 when they vacuumed the passenger footwell of the vehicle. Hair 13 was suitable for nuclear DNA analysis. The hair was 18 mm in length. Ms Horner said hair 13 was a human hair that was black, straight and coarse [611].
3. At the trial, expert evidence in relation to hair 13 was given by Mr Andrew McDonald, Dr Dadna Hartman and Dr Michael Wallbank (who were State witnesses) and by Professor Alan Jamieson (who was a defence witness).
4. The trial judge reviewed the evidence about hair 13 and arrived at these conclusions [757] - [760]:

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.

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.

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.

Another relevant matter which I have taken into account is Ms Horner's description of hair 13. She described it as black (ts 1896). 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.

1. I am not persuaded, on my review of the evidence, that hair 13 belonged to Ms Dodd. I do not accept the State's submission that this court should set aside her Honour's conclusion that she was not persuaded that hair 13 belonged to Ms Dodd and substitute a finding that hair 13 did in fact belong to Ms Dodd. Her Honour was entitled to arrive at that conclusion and I am not satisfied that she was wrong. Her Honour said she was 'more inclined' to accept Mr McDonald's opinion than Professor Jamieson's opinion [757]. However, her Honour decided that weight should be given to the opinions of both of them. It was in those circumstances that her Honour was unable to conclude that it was more likely that the DNA profile obtained from hair 13 was that of Ms Dodd. I am not persuaded that, having regard to the record, this court should accept Mr McDonald's views to the exclusion of Professor Jamieson's views where they are inconsistent or in conflict. I am not persuaded from the nuclear DNA and the mitochondrial DNA results, in combination, and from all of the other circumstances concerning the recovery of hair 13, that hair 13 belonged to Ms Dodd. Her Honour enjoyed an advantage which this court does not have in that she saw and heard the expert witnesses give their evidence. It was not suggested (and it could not reasonably have been suggested) that her Honour misused her advantage.
2. Subject to my reasons and conclusions in relation to ground 3, for the reasons I have given in relation to grounds of appeal 1, 2, 2A, 4 and 5, it was open to her Honour:

(a) to be satisfied beyond reasonable doubt that the appellant's alleged alibi was false;

(b) to find that the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at 'about 12.05 pm';

(c) to find that the appellant had the propensity referred to at [320] above; and

(d) to be satisfied beyond reasonable doubt that the earring found on the car seat cover belonged to Ms Dodd.

1. As to the appellant's contention that there was an 'unrealistically short timeframe' for the various acts which must have occurred between the appellant encountering Ms Dodd and the appellant arriving at the Badgingarra roadhouse by 1.36 pm, it is not apparent that the relevant timeframe was 'unrealistically short'. Her Honour concluded that it would have taken 'very little time' for the appellant to have killed Ms Dodd [441]. Her Honour elaborated:

If [the appellant] 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 appellant] 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 appellant] 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.

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 appellant] would have had sufficient time to kill and conceal Ms Dodd's body and complete his other tasks [441] ‑ [442].

1. There are two flaws in the appellant's contention that he needed to deal with the shopping he had bought in Moora earlier on 29 July 1999. First, the appellant did not 'deal with' the meat which he had obtained from DJs Butcher. Rather, the appellant left a note requesting Mr McConnell to separate the meat. Secondly, although Mr McConnell's statement dated 27 August 1999 referred to the note requesting him to separate the meat, his statement was silent on whether groceries had been purchased, the quantity of any such groceries and whether groceries had or had not been put away by the appellant.
2. In my opinion, her Honour's findings and reasoning on this issue are not attended by any material error.
3. Subject to my reasons and conclusions in relation to ground 3, her Honour was entitled to be satisfied beyond reasonable doubt, having regard to all of the facts and circumstances that were established by the evidence and have not been challenged or not challenged successfully in the appeal, including:

(a) Ms Dodd 'disappeared' between the location of the 961 marker and 2 km east of that location on North West Road between about 11.40 am and about 12.10 pm on 29 July 1999;

(b) Ms Dodd must have been picked up on North West Road at that time by a person who had a motor vehicle;

(d) the person with a motor vehicle who picked up Ms Dodd was responsible for her death;

(e) on 29 July 1999, the appellant was driving Mr McConnell's vehicle;

(g) the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at 'about 12.05 pm';

(h) at that time the appellant was alone in Mr McConnell's vehicle;

(i) the earring on the seat cover seized by the police from Mr McConnell's vehicle belonged to Ms Dodd;

(j) the propensity evidence established that in 1999 the appellant had the highly significant inclination or predisposition to which I have referred at [320] above;

(k) the appellant had sufficient time between encountering Ms Dodd on North West Road on 29 July 1999, on the one hand, and his arrival at the Badgingarra roadhouse at 1.36 pm on that date, on the other, to kill Ms Dodd and dispose of her body; and

(l) there were other people who theoretically could have been responsible for Ms Dodd's disappearance, but there was no evidence that any other people were involved in her disappearance,

that the appellant had unlawfully killed Ms Dodd, with the requisite intention for murder or in circumstances sufficient to constitute murder.

1. Subject to my reasons and conclusions in relation to ground 3, I am satisfied, after examining the trial record and weighing the evidence, that it was reasonably open to the trial judge to reject the appellant's defence and to be satisfied beyond reasonable doubt that he was guilty of murder.
2. Subject to my reasons and conclusions in relation to ground 3, a tribunal of fact, acting reasonably, was not precluded by the state of the evidence at trial (including, for example, the absence of direct evidence of guilt and the absence of a body or any evidence as to a cause of death) from convicting the appellant of murder. Subject to my reasons and conclusions in relation to ground 3, a tribunal of fact, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of all the facts and circumstances established by the evidence, that the appellant unlawfully killed Ms Dodd in circumstances constituting the offence of murder.
3. Subject to my reasons and conclusions in relation to ground 3:

(a) The trial record does not require the conclusion that the trial judge must necessarily have entertained a doubt about the appellant's guilt.

(b) The verdict of guilty of murder was not unreasonable.

(c) The verdict was supported by evidence that her Honour was entitled to accept and inferences that her Honour was entitled to draw.

(d) After paying full regard to the consideration that her Honour was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that her Honour had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction.

(e) It would not be dangerous to permit the verdict to stand.

1. Finally, in connection with ground 6, I emphasise that my reasons and conclusions in relation to ground 3 do not mean that it was not open to a tribunal of fact, acting reasonably and in accordance with all relevant and appropriate directions of law, to be satisfied beyond reasonable doubt that the appellant's alibi was false. As I have mentioned, the evidence in relation to the earring on the seat cover seized by the police from Mr McConnell's vehicle on 6 August 1999 (in combination with the propensity evidence) was of critical significance in the State's circumstantial case against the appellant. All of that evidence could and, in my opinion, should have been used by her Honour in deciding whether the State had disproved the appellant's alibi beyond reasonable doubt.
2. Ground 6 has not been made out.

1. I would grant leave to appeal on each of the grounds of appeal. The appeal should be allowed on the basis of ground 3 and the judgment of conviction set aside.

Should this court enter a judgment of acquittal or order a new trial?

1. I turn to consider whether this court should enter a judgment of acquittal or order a new trial.
2. Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender. It reads relevantly:

If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -

(a) order a trial or a new trial; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the offender could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,

enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.

1. In Director of Public Prosecutions (Nauru) v Fowler,[81] Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character. Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'.
2. In King v The Queen,[82] Dawson J reiterated that the discretion to order a new trial should not be exercised 'when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective'. His Honour noted, in particular, that 'the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes ((1948) [1948] HCA 22; 77 CLR 511, at p 518)'. See, to similar effect, the observations of McHugh J in Jiminez v The Queen,[83] where his Honour held that a new trial should not be ordered because 'a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial'. See also Parker v The Queen.[84]
3. In R v Taufahema,[85] Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen[86] that:

(a) there is a public interest in the due prosecution and conviction of offenders; and

(b) it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.

1. In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R v Wilkes,[87] and by Dawson J in King (433), to 'a new case' must be 'to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence' [35] - [36].
2. Gleeson CJ and Callinan J also said in Taufahema that the general rule that 'litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applied with at least as much force to the prosecution as to the defence' [37]. Their Honours explained [37]:

The considerations identified in Crampton v The Queen ((2000) [2000] HCA 60; 206 CLR 161 at 172 - 173 [15] - [20]) as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.

1. Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that 'the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial' [67].
2. I am satisfied, for the following reasons, that in the present case a judgment of acquittal should not be entered and that a new trial should be ordered.
3. First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a fact‑finding tribunal.
4. Secondly, the miscarriage of justice at the appellant's trial occurred as a result of errors of law in the trial judge's reasoning.
5. Thirdly, the miscarriage of justice is not attributable to the manner in which the prosecutor ran or did not run the State's case.
6. Fourthly, there is no apparent defect in the State's case. The admissible evidence adduced at the original trial was sufficiently cogent to support a conviction on the charged offence.
7. Fifthly, there are no circumstances that render it unjust to the appellant to make him stand trial again.

1. As I have mentioned, leave to appeal should be granted on each of the grounds of appeal, the appeal should be allowed on the basis of ground 3 and the judgment of conviction should be set aside. A new trial should be ordered on the charge of murder.

1. I have had the considerable advantage of reading in draft the separate reasons of Buss P and Beech JA. For the reasons given by Beech JA, I agree that grounds 1, 2 and 2A have not been made out. Save for my agreement with Beech JA's conclusion that the State did not have to prove, as a separate intermediate fact or circumstance, as part of its circumstantial case that the appellant's alleged alibi was false, I also agree with Buss P's reasons on grounds 1, 2 and 2A. I agree with Beech JA's reasons on ground 3. I agree with Buss P's reasons on grounds 4, 5 and 6. In relation to ground 6, I also agree with Beech JA's observations as to an alternative path of reasoning to guilt which was open on the evidence adduced at trial. The orders which should be made are those proposed by Buss P at [8] and [524] of his reasons.

1. The appellant was charged with the wilful murder, on or about 29 July 1999, of Hayley Marie Stephenson (Ms Dodd). He was charged on 27 November 2013, tried, by judge alone, from 9 October 2017 to 24 November 2017, and convicted of murder. The trial judge published written reasons for her decision.[88]
2. The appellant challenges his conviction for murder, advancing seven grounds of appeal.
3. I agree with Buss P, for the reasons he gives, that grounds 4 and 5 have not been made out. I also agree that grounds 1, 2, 2A and 6 are not established; my reasons regarding those grounds, which substantially overlap with Buss P's reasons, and in some parts adopt them, are set out below. For the reasons given below, like Buss P, I would uphold ground 3 and the appeal. Consequently, I would set aside the appellant's conviction and order a retrial.
4. Substantial parts of the judge's findings and reasoning have been outlined in Buss P's reasons. Nevertheless, I think it is worthwhile comprehensively outlining her Honour's reasons to assist in understanding the logic with which the reasons are constructed. That is because the grounds of appeal and submissions require close attention to the interrelationship of several aspects of the judge's reasoning.

Primary judge's reasons Modified Longman warning

1. The primary judge gave herself a modified Longman warning in the following terms:[89]

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.

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.

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.

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.

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.

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.

1. The State submitted that the judge should be satisfied beyond reasonable doubt that the appellant encountered Ms Dodd at about midday on 29 July 1999, picked her up, killed her and disposed of her body, as a matter of inference from the following circumstances:[90]

(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.

1. At trial, the appellant contended that he was not guilty because of the alibi that he was in Moora at the time Ms Dodd disappeared. He further contended that, in any event, the judge 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 was probative of his guilt.[91]

1. In July 1999, the appellant lived on a block on the southeast corner of North West Road and McNamara Road, about 7.6 km from Badgingarra and 50.7 km from Moora along North West Road.[92]
2. Mr McConnell's vehicle, driven by the appellant on 29 July 1999, was a very old, white 1973 Holden HQ utility, or 'ute'. The appellant, who owned the ute from 1998 to June 1999, regularly drove the ute to Moora.[93]
3. Ms Dodd was small in stature, being not taller than about 5 foot 1, and somewhere around 40 to 50 kg.[94]
4. Ms Dodd purchased new earrings in Dongara on 27 July 1999.[95] Her travel partner, Ms Frederickson, drew a detailed picture of these earrings on 2 August 1999.[96]
5. The judge found that, prior to 29 July 1999, Ms Dodd was planning to visit the Seldom Seen farm on the southern side of North West Road, 24.6 km from Badgingarra and 33.7 km from Moora.[97] She had told Ms Frederickson, as much.[98] On 28 July 1999, she telephoned the owner of Seldom Seen farm and told him that she was planning to visit on 29 or 30 July 1999.[99]

1. Sometime in the morning, Ms Dodd left Ms Frederickson in Dongara to go to Seldom Seen farm via Badgingarra.[100] When she did, Ms Dodd was wearing her new earrings.[101] Ms Dodd got a lift with Mr Donald Spry, who was driving a truck to Badgingarra.[102] Mr Spry dropped her off there at close to 10.30 am, which time can be identified because she made a phone call at 10.35 am.[103] At 10.38 am, Ms Dodd purchased water and chips.[104] She then started walking along Meagher Drive towards North West Road, not hitchhiking.[105]
2. Mrs Margaret Johnson stopped and offered Ms Dodd a lift, which she accepted.[106] After a conversation between them, Mrs Johnson dropped Ms Dodd off near the corner of North West Road and Winjardie Road.[107] That was at about 11.00 am.[108]
3. Mr and Mrs Weaver saw Ms Dodd being dropped off at about 11.00 am on their way to Badgingarra Primary School.[109]
4. Mr Skipworth also saw Ms Dodd at the corner of North West Road and Winjardie Road at about 11.00 am.[110]
5. Mr Moltoni was driving from Mr Streppel's farm to Jurien Bay. He saw her at about 11.05 am to 11.10 am.[111]
6. Shortly afterwards, on their return journey from Badgingarra Primary School, the Weavers saw Ms Dodd again, walking along North West Road towards Moora.[112] The judge found that, after this, Ms Dodd continued walking in an easterly direction along North West Road.[113]
7. Mr Giles saw Ms Dodd nearby, close to the intersection of McNamara Road and North West Road, between 11.00 am and 11.30 am.[114]
8. Mr Koeberle saw Ms Dodd just west of the intersection of Badgingarra Road and North West Road at approximately 11.20 am.[115]
9. Ms Purser saw Ms Dodd on North West Road, east of its intersection with Badingarra Road, between 11.15 am and 11.20 am. Ms Dodd was walking towards Moora.[116]
10. Mr Cheek saw Ms Dodd on North West Road around 11.00 am to 11.30 am. Mr Jankowski saw Ms Dodd at about 11.20 am to 11.30 am. The judge found that it was likely that they saw her close to the intersection with Badgingarra Road.[117]
11. Mr Hale saw Ms Dodd on the 6.7 km stretch of North West Road between Badgingarra Road and Wathingarra Road at about 11.30 am.[118]
12. Driving east on North West Road towards Moora, Mr Stribley saw Ms Dodd near the location of the 961 marker at around 11.40 am.[119] Via North West Road, the 961 marker is 48.7 km west of Moora and 1.6 km east of the junction with Badgingarra Road.[120] Mr Stribley also gave evidence that he saw three cars on his way to Moora.[121] The first was an older style dirty white farm ute, which the judge said was possibly Mr McConnell's ute.[122] The second was a signed Telstra van that he saw 5 to 10 minutes later; Mr Stribley's evidence was that this was a transit van but also gave a HiLux as an example of such a van.[123] Mr Stribley could not recall the third vehicle but it was not a truck or van.[124]
13. Mr Bruce Smith and Mr Burnett were Telstra employees who worked together in the area that day.[125] In evidence-in-chief, Mr Bruce Smith testified that he saw a young girl in a location a lot further east after about 1.15 pm to 1.20 pm;[126] in cross-examination, he gave a very different account of where he saw the girl.[127] Mr Burnett gave evidence that he did not recall seeing anyone on the road that day.[128] The judge said:[129]

Mr [Bruce] 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.

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 [Bruce] 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.

1. Various witnesses who drove on North West Road at a potentially relevant time, including Mr Streppel, Mr Peacock, Mrs Crouch and Mr Barrett, gave evidence that they did not see Ms Dodd.
2. Mr Streppel, at a very rough estimate, would have passed the location of the 961 marker at 12.10 pm to 12.15 pm.[130] As he was on a motorbike keeping a careful lookout, the judge put particular weight on his failure to see Ms Dodd.[131]
3. That morning, Mr Peacock travelled from his farm on Wathingarra Road into Badgingarra and back in a rush. That drive takes about 17 minutes, at 90 km per hour, one way. He gave 11.30 am as a 'rubbery' estimate of the time he left his farm. It would have taken him 5 to 10 minutes to reach the junction of Wathingarra Road and North West Road. His evidence was that, from there, he did not recall seeing any people on North West Road in the 15 km into Badgingarra.[132] The judge found that Mr Peacock was at Rural Traders, in Badgingarra, at about 12.20 pm and left around that time.[133] The judge found that, on his return journey, Mr Peacock would have been on North West Road in the area of the location of the 961 marker at about 12.40 pm.[134] The judge said:[135]

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.

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 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. 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. Mrs Crouch's evidence is consistent with Ms Dodd not being on North West Road, east of Badgingarra Road, at that time. (footnotes omitted)

1. Mr Barrett, another Telstra employee, was travelling westward, in a Nissan Patrol wagon with Telstra markings, from Moora to Badgingarra via North West Road.[136] He was rushing on his way to his final destination of Jurien Bay.[137] He estimated that he left the depot in Moora at the end of Roberts Street at around 11.30 am.[138] He estimated that he arrived at Jurien Bay at around 12.45 pm and that it only took him about 30 minutes to drive from Moora to the Brand Highway.[139] The judge calculated that, if this were the case, he would have had to have travelled at an average speed of 96 km per hour for the entire journey and 116 km per hour from Moora to the Brand Highway.[140] The judge found that he was on North West Road between about 11.40 am to 12.10 pm.[141] His evidence was that he 'definitely' did not see any person on North West Road (and did not recall seeing any vehicles).[142] The judge said:

[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 [sic] 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. 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. Depending on where on the road Ms Dodd was there may not have been a lot of time for Mr Barrett to see her. (footnotes omitted)

1. The judge came to the following conclusions about Ms Dodd's movements:

[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 and her Centrelink file have not been used since 29 July 1999. No one using her name or her identity has been recorded as leaving Australia. 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. (footnotes omitted)

1. Thus, the judge found that the last reliable sighting of Ms Dodd was at about 11.40 am at the location of the 961 marker and that she disappeared between then and 12.10 pm. The judge also found that Ms Dodd was dead, was picked up by someone while she was walking along the road and that whoever picked her up was responsible for her death.

1. The appellant gave a written statement[143] to police on 3 August 1999, and then a typewritten version of that statement,[144] with a few additions, on 5 August 1999.[145] Later, on 27 November 2013, he participated in an electronically recorded record of interview (the EROI)[146].[147] He did not give evidence at the trial.[148]
2. In setting out '[g]eneral legal principles' towards the beginning of her Honour's reasons, the judge said the following as to the appellant's out of court statements:[149]

I may use the statements and EROI for or against the accused. It is up to me to decide which part of the statement 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.

Her Honour then said the following as to the appellant's alibi:[150]

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.

1. In his statement given voluntarily while not a suspect, as the judge observed,[151] on 3 August 1999, the appellant described what he did on 29 July 1999. Its contents are set out in Buss P's reasons and may be summarised as follows.

(a) When he arrived in Moora, a little after 10.00 am, he withdrew some money from Bankwest, taking 10 minutes at most.

(b) He then went to the video store for 15 or 20 minutes, where he exchanged ten weekly videos for another ten, spending some time looking for videos he had not already seen.

(c) He then went to the post office where he paid for a postal order to pay a fine and obtained a tax pack.

(d) He then went to the newsagency to get a second tax pack; he was not there long.

(e) He then went back to his car and drove to the supermarket and the butcher, across the railway line. At the supermarket, he generally spent about $150 to last about two weeks. At the butcher, he bought about $50 worth of meat to last about two weeks. He did not know how long this shopping took him.

(f) Finally, he went to the bakery, where he bought a couple of pies for lunch. He said: '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.'

He drove home via Dandaragan Road and North West Road. The trip 'takes [him] just over half an hour'; it would not take more than 45 minutes. Mr McConnell's ute did not do more than 80 km per hour. He got home around 1 pm. The appellant said that he did not see or pick up anyone who was hitchhiking. He also said that if he had seen anyone hitchhiking, it would have been unusual and he would have stopped.

1. The parties agreed at trial that the appellant paid an account of $14.40 at the Badgingarra roadhouse at 1.36 pm.[152]
2. In his typewritten statement of 5 August 1999, the appellant added that Mr McConnell's ute overheated if it was driven above 80 km per hour.[153]
3. The judge stated:

[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 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.

1. The judge then detailed evidence relevant to the appellant's movements on 29 July 1999, including the following.
2. Mrs Robyn Crouch drove from her farm, near the corner of Badgingarra Road and North West Road, to Moora. On the way, she overtook the appellant, whom she knew, in Mr McConnell's ute, on his way towards Moora. She estimated that the ute was travelling at 70 km per hour. After she arrived in Moora, which was likely to be between 10.00 am and 10.10 am, she saw and spoke to the appellant there for about five minutes. The judge found that this would have taken place shortly after 10.35 am, after the appellant had been to the Post Office. Mrs Crouch drove back to the farm from Moora. She estimated that she left at about 11.45 am and got home at 12.30 pm. She did not see the appellant on the way.[154] The judge said:

[363] ... Mrs Crouch testified that she left Moora at about 11.45 am and that she arrived back at the farm at 12.30 pm. 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. ...

[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.

1. Although Mr Dunn, who had been working at the video store, gave evidence that he saw the appellant in the video store at a time between 10.30 and 11.00 am, the judge found that the appellant was there 'around 10.20 am - 10.30 am'.[155] In so finding, the judge relied on her view that it was unlikely that the appellant did other shopping before going to the video store and Australia Post, and the known timing of the appellant's visit to the Australia Post store.[156]
2. It was known, from documents tendered at trial, including Australia Post records,[157] that the appellant purchased a money order at Australia Post at 10.35 am.[158]
3. The judge found that the process of the appellant collecting his car and driving to Supa Valu would not have taken more than five minutes.[159] After considering the till rolls at Supa Valu, the judge identified only one transaction of approximately the right magnitude (between $100 and $200) to have been the appellant, which occurred at a time between 11.02 am and 11.06 am.[160] Her Honour observed that if that were his transaction ($142.15), it would mean that his grocery shopping took him about 20 minutes, which did not seem unreasonable.[161] The judge eliminated other transactions of approximately the right magnitude on the basis that those after 12.20 pm were too late, for reasons the judge explained, and the one before 10.30 am was too early.[162]
4. The judge concluded, after consideration of evidence concerning the till roll at the butcher, DJs Quality Meats, that she could not determine what transaction related to the appellant.[163] The judge gave detailed consideration to the evidence of Mr Greay, the butcher at DJs Quality Meats. Her Honour concluded that Mr Greay's evidence and the till roll could not be relied on as to timing. However, she was satisfied, by other evidence, that the appellant went to the butcher on 29 July 1999, that this was likely to have been at about 11.10 am, and that he would have concluded his purchase by 11.25 am.[164] Her Honour's findings as to this timing is not explained. However, the 11.10 am time appears to be based on the earlier conclusion as to when the appellant left Supa Valu. The 11.25 am time appears to be based on Mr Greay's estimate of the likely time involved in the appellant's purchase at the butcher that day and of the maximum time it took to prepare the appellant's order generally, being 15 minutes.[165]
5. The judge also gave detailed consideration to the evidence concerning the till records at the bakery, Pioneer Bakery. The judge was satisfied that there was only one sale on 29 July 1999 for two pies.[166] The judge appeared to accept Ms Russell's evidence that, as a broad estimate, the sale took place between 10.30 am and 11.30 am.[167]
6. The judge considered evidence concerning damage to the indicator lever of Mr McConnell's ute.[168] She concluded that it was probable that the indicator lever was broken after the appellant had used Mr McConnell's ute on 29 July 1999. She observed that that was not a matter of great weight, as there were other ways in which the indicator lever could have been broken, other than during the course of a struggle with Ms Dodd. The judge observed that, nevertheless, it was a matter which she took into account in her deliberations.[169]

Conclusions about the appellant's movements on 29 July 1999

1. The judge's conclusions about the appellant's movements on 29 July 1999 were expressed as follows:[170]

[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. (emphasis added)

Many of these conclusions are challenged by grounds 1, 2 and 3.

1. After so concluding, the judge turned to a further issue: whether, if the appellant did encounter Ms Dodd on North West Road, he had sufficient time to kill her and dispose of her body between then and 1.36 pm, when it was agreed he was at the Badgingarra Roadhouse. Her Honour said:[171]

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.

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.

1. The primary judge outlined various aspects of the police investigation in considerable detail. The issues on appeal do not require detailed attention to these aspects.
2. On 6 August 1999, Mr McConnell's ute was examined.[172] Photographs and a video were taken of the examination.[173] The judge viewed the video and photographs. The judge observed that it was not possible to see all of the seat cover in either the photographs or video. Among the areas not visible was the area where an earring was first seen in 2013 by Ms Horner, a medical scientist at PathWest.[174]
3. The officers involved gave evidence that they did not remember how they removed and folded the seat cover.[175] The judge accepted their evidence that they did not, and the reasons that they did not, carefully examine the seat cover in situ.[176]
4. The car seat cover was not recorded on the original exhibit list or on the document management system, PTS.[177] There was nothing fraudulent in that.[178]
5. The judge found that reference to the car seat cover was added in blue pen to the exhibit list, on 6 August 1999, and into PTS, by no later than 13 August 1999.[179]
6. Subsequently, the exhibits were transferred from PTS onto a new document management system, referred to as IMS. On 8 August 2011, Sergeant Rowe commenced converting the electronic record of the 14 items in the ute, from PTS onto IMS.[180] The judge considered and rejected the defence theory that Detective Sergeant Bethell planted the earring. The judge catalogued a number of problems with that theory.[181] Her Honour was satisfied that the earring was not planted.[182] That finding is not challenged on appeal.[183]
7. When the seat cover was examined on 5 September 2013, Ms Horner found an earring.[184] She took photographs of the earring.[185]
8. The earring is nearly identical to that described and drawn by Ms Frederickson.[186]
9. The judge evaluated, in considerable detail, the evidence concerning hair 13, which was one of the hairs retrieved from Mr McConnell's ute and which was submitted for DNA testing.[187] The judge referred to the competing expert evidence of Mr McDonald and Professor Jamieson. Her Honour found that she was unable to conclude that it was more likely that the DNA profile from hair 13 was that of Ms Dodd. While it was possible that it was Ms Dodd's hair, her Honour was not persuaded that it was her hair.[188]

1. The judge outlined the undisputed evidence of Ms M.[189] Her evidence was to the following effect.
2. In the early hours of 1 June 2007, while she was intoxicated, Ms M was walking on a road near Atherton, hoping to get a lift from a passing truck. The appellant was driving a white van, and pulled up next to her. She accepted his offer of a lift.
3. They stopped at his home. After a while she said she wanted to go home. He said he would not give her a lift. She then left. The appellant followed her, grabbing her with large piece of wood in his hand. The appellant then subjected her to numerous various forms of sexual assaults. He also hit her, on the head, more than once, with the large piece of wood, dragged her by her hair and slapped her.

1. The judge came to the following conclusions about the propensity evidence:[190]

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.

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.

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.

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.

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.

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.

These conclusions are challenged by grounds 4 and 5.

1. The judge recorded the appellant's submission that the evidence did not enable her to exclude, as a reasonable hypothesis, that the earring was dropped in Mr McConnell's ute by a person other than Ms Dodd.[191]
2. The judge referred to the appellant's submission that the following meant that it was possible that the earring was left in the car, at a different time, by someone other than Ms Dodd, and that it sat in the crease between the bench seat and the back rest until it was disturbed by the police:[192]

(c) the availability of earrings of the same type; and

(d) evidence of the number of people who had used the ute.

1. The judge observed that, isolated from other evidence, that would be a reasonable possibility. However, her Honour found that, when considered with the evidence that:[193]

(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,

it was 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.

1. Thus, it can be seen that the judge used the finding of opportunity, and two aspects of the propensity evidence, as part of her reasoning to exclude any reasonable possibility that the earring did not belong to Ms Dodd.
2. Ground 2A challenges this use of the finding of opportunity in excluding that possibility.

Conclusion as to whether the appellant killed Ms Dodd

1. The judge recorded that she had found that:[194]

(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.

1. The judge concluded that, given these findings, she was satisfied beyond reasonable doubt that the appellant picked up Ms Dodd and killed her on 29 July 1999 by some unknown means.[195]
2. In so finding, the judge said she had taken into account circumstances favourable to the accused, including that:[196]

(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.

1. The judge found that there was no reasonable inference that could be drawn that was consistent with the appellant's innocence.[197] That was so, given that the evidence proved that the appellant was driving alone on the same stretch of isolated road that Ms Dodd was walking on when she disappeared, he had a propensity to pick up female hitchhikers and seriously assault them, and there was compelling evidence that Ms Dodd was in Mr McConnell's ute in the form of the earring that Ms Dodd was wearing on the day she went missing being found in the ute.[198]

1. The judge was not satisfied that the appellant intended to kill Ms Dodd.[199] The judge found it was a reasonable inference from the evidence that the appellant 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.[200] The judge was satisfied that the only inference to be drawn from the evidence was that the appellant's act, which caused Ms Dodd's death, was an act done in the prosecution of an unlawful purpose. The unlawful purpose was to subdue or overpower Ms Dodd by physically assaulting her, the ultimate purpose being to sexually assault her.[201]

1. Consequently, the primary judge acquitted the appellant of wilful murder, but convicted him of murder.[202]

1. The grounds of appeal and the parties' submissions are detailed in Buss P's reasons.
2. I will outline my understanding of the principles applicable to appeals from a trial by judge alone, before explaining the conclusions I have reached on the grounds of appeal.

Appeals from a trial by judge alone: legal principles

1. The relevant provisions of the Criminal Procedure Act 2004 (WA) and the Criminal Appeals Act 2004 (WA) are set out in Buss P's reasons. I agree with what his Honour has said at [253] ‑ [258] as to the applicability to those Acts of what was said by the High Court in Fleming v The Queen.[203]
2. The task of an appellate court in determining an appeal from a trial by judge alone on a ground under s 30(3)(a) of the Criminal Appeals Act was explained, in the context of the equivalent New South Wales legislative provisions, by the plurality in Filippou v The Queen:[204]

Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act [the equivalent of s 120(1) of the Criminal Procedure Act 2004 (WA)] that the effect of the latter provision is to equate a judge's finding of guilt to a jury's finding of guilt 'for all purposes'. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.

Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. ... (footnote omitted)

1. The plurality explained, by reference to the New South Wales equivalent, that the appellate court must deal with an appeal under the third limb of s 30(3), namely par (c), in three stages. The first question is whether there was error of the kind alleged (assuming the appellant alleges error). If so, the second stage is to determine whether the error, alone or in combination with any other established error(s) or circumstance(s), was productive of a miscarriage of justice. If so, and if the respondent invokes the proviso, the third stage is to determine whether the respondent has established that the error was not productive of a substantial miscarriage of justice.[205]
2. In explaining the task of the appellate court in this manner, the plurality distinguished that task from that which applies to deciding a civil appeal by way of rehearing.[206]
3. The plurality made clear that, as regards the first enquiry, in deciding whether a finding of fact reveals error, the question is whether the finding was reasonably open, not whether the finding is, in the appellate court's view, correct.[207]
4. As regards the second enquiry, plainly, an error of fact that is not material, in the sense that it is not capable of having affected the result, will not give rise to a miscarriage of justice. The question is whether anything more than materiality in this sense is required in order that an error of fact give rise to a miscarriage of justice. The plurality did not address, in terms, the question of when and in what circumstances an error of fact made by a judge hearing a criminal trial without a jury would be productive of a miscarriage of justice.
5. That question was addressed by Gageler J in Filippou. His Honour referred to the position in jury trials, as explained in Simic v The Queen.[208] In Simic, it was held that a judge's misstatement of fact will give rise to a miscarriage of justice, and a substantial miscarriage, if it is reasonably possible that the misstatement may have affected the verdict, taking into account the gravity of the misstatement and the strength of the case against the appellant.[209]
6. At [85] - [87] of Filippou, Gageler J took a similar approach in relation to an appeal against conviction following a trial by judge alone. His Honour stated that an appellant must establish two things in order to discharge the onus of establishing a miscarriage of justice. The first is that the trial judge made the alleged error of fact in arriving at an intermediate finding of fact. The second is that, having regard to the gravity of the error of fact and the strength of the case against the appellant, it is reasonably possible that the trial judge might not have arrived at the ultimate finding of guilt if the trial judge had not made that error.[210]
7. Both parties submitted that what is said by Gageler J at [85] ‑ [87] of Filippou should be applied by this court.[211] What was said by Gageler J was quoted with evident approval by Basten JA (with whom RA Hulme J agreed) in Taylor v The Queen.[212] I will proceed on the same basis. That being so, I agree with Buss P's conclusions at [302] above.
8. In my respectful opinion, in determining whether it is reasonably possible that an error of fact may have affected the judge's verdict, it is necessary to take into account the judge's expressed reasoning to the verdict (as well as the gravity of the error and the strength of the case against the appellant). For example, if the error of fact relates to something that is, on the judge's stated reasoning, an essential step in that reasoning, then often, if not ordinarily, a conclusion that it is reasonably possible that the error affected the verdict may readily be drawn. In my respectful view, in hypothesising as to the verdict, absent the found error, the question is whether it is reasonably possible that the trial judge might have reached a different verdict, not whether it is reasonably possible that the appellate court would do so. Thus, the enquiry is not determined in the negative simply because, on the appellate court's evaluation of the evidence as a whole, there is a path of reasoning to guilt that is wholly different to that taken by the trial judge. Just as, in applying the proviso, it is not for this court to exercise the function of the tribunal of fact,[213] in determining whether an error of fact gave rise to a miscarriage, it is not for this court to exercise the function of the trial judge in a case of trial by judge alone. Conversely, consideration of other parts of the judge's reasons may reveal, expressly or by implication, that an error in one aspect of the judge's fact‑finding or reasoning is immaterial to the judge's reaching of their conclusion. That is illustrated by Filippou itself. The plurality concluded that because the trial judge had found that any loss of self‑control was excluded beyond reasonable doubt, any error as to the test applicable to s 23(2)(b) of the Crimes Act 1900 (NSW), concerning provocation, was of no consequence.[214] In these respects, the provision by a judge alone, of reasons for their verdict, provides a somewhat different framework for evaluating whether an error is productive of a miscarriage of justice. Another difference arises in the following respect.
9. As was emphasised in Simic,[215] in a case of trial by jury, the trial judge tells the jury that the facts are for them and that they are not bound by what the judge says as to the facts. Thus, if a judge makes a misstatement of fact, the jury, who has heard the evidence, will not necessarily be misled at all.[216] By contrast, where the judge is the tribunal of fact, the judge's misstatement of fact necessarily means that the tribunal of fact has misdirected itself as to the facts. Whether, and to what extent, the error may have influenced the verdict is then to be evaluated in light of the reasons as a whole.
10. In Filippou, immediately following [85] ‑ [87], Gageler J further observed that the third limb (of the equivalent of s 30(3)) will not avail an appellant, unless the appellate court, on its own review of the evidence, can be persuaded that the error of fact gave rise to a reasonable doubt about the ultimate finding of guilt, which doubt cannot be resolved by the trial judge's advantage in seeing and hearing the evidence.[217] In my respectful opinion, that statement of principle is not consistent with the approach of the plurality. That is because what is said by Gageler J in this passage seems to me to be substantially the approach taken by McClellan CJ in the Court of Appeal in that case, which approach was rejected by the plurality.[218] By contrast, Gageler J supported the approach taken by McClellan CJ.[219] Consequently, and for the reasons in [609] above, I do not propose to apply this aspect of what Gageler J said in Filippou.
11. I will outline principles applying to the third enquiry, whether the proviso can be applied to dismiss the appeal, in the course of resolving ground 3.

1. It is convenient to deal with grounds 1, 2 and 2A together, but without regard to the alleged error the subject of ground 3, before resolving ground 3.

What matters needed to be proved beyond reasonable doubt?

1. Grounds 1 and 2 are put in the framework that the falsity of the appellant's alibi, and the fact that the appellant had the opportunity to encounter Ms Dodd on North West Road, respectively, were matters that needed to be proved beyond reasonable doubt.[220]
2. The State was, undoubtedly, required to disprove the appellant's alibi beyond reasonable doubt. However, I would not characterise it as an intermediate fact, because I do not think that disproving the alibi was necessarily a step separate from proof of guilt. I also do not accept that the prosecution was required to prove opportunity, as a distinct matter, beyond reasonable doubt. It is only when a fact is an indispensable link in a chain of reasoning towards guilt that it is an intermediate fact that must be proved beyond reasonable doubt.[221] The notion of an intermediate fact being an indispensable link involves it being a discrete step necessary in order to establish another distinct step. The following observations of McLure P in Austic v The State of Western Australia seem to me to be applicable to the present case:[222]

I do not accept the premise that either of the facts are indispensable links in a chain of reasoning towards guilt. Whether or not an intermediate fact is an indispensable link in a chain of reasoning towards guilt depends upon the issues and evidence in a particular case. As noted by Dawson J in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 581, whether or not the presence of the accused when the crime was committed is an indispensable link in the chain of reasoning depends on the circumstances of the case.

A fact will be an indispensable link in a chain of reasoning if it is a discrete step which must be proven before addressing the next step in the reasoning process towards the ultimate inference of guilt: Shepherd (576) (Mason CJ). That is, proof of the fact is a necessary condition for establishing a further (and different) fact.

The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the appellant killed the deceased, that being an element of the offence of wilful murder. The appellant could not have killed the deceased unless he had the opportunity to and was in the presence of the deceased when she was killed. However, opportunity and/or presence were not discrete steps in the reasoning process in this case. All of the circumstantial evidence in the case comprised strands in a cable rather than links in a chain on the issue of whether the appellant killed the deceased. (emphasis added )

1. For similar reasons, in DKA v The State of Western Australia,[223] Mitchell JA, with whom Buss P and Mazza JA generally agreed,[224] rejected an argument that, on a charge of sexual assault where the defence case was that the accused was incapable of an erection and ejaculation, the State was obliged to prove beyond reasonable doubt that the accused was so capable. His Honour explained the concept of an intermediate fact by reference to what Dawson J had said in Shepherd v The Queen,[225] and then explained why the accused's capacity to sustain an erection and ejaculate was not an intermediate fact as follows:[226]

As a matter of fact, acceptance of the complainant's evidence would carry with it a conclusion that the appellant must have been capable of sustaining an erection and ejaculating in the manner the complainant described. However, the jury did not need to be satisfied beyond reasonable doubt that the appellant was impotent before deciding whether it was satisfied beyond reasonable doubt that the accused engaged in the charged conduct. (original emphasis)

1. In the circumstances of this case, the alibi defence was an assertion that the appellant was not present at the place and in the period when Ms Dodd was walking on North West Road. What was characterised as the appellant's alibi evidence related to the questions of when and at what speed the appellant left Moora on his return trip.
2. I accept that there are many cases, including some cited by Buss P at [364], holding that an alibi must be disproved beyond reasonable doubt. As I have said, I accept that the State must disprove alibi beyond reasonable doubt. However, that does not mean that disproof of the alibi is a separate or intermediate step in reasoning to guilt. Often, as here, the circumstantial evidence pointing to guilt is the evidence to be used to rebut the alibi defence.
3. In my view, in the circumstances of this case, neither the alibi defence nor opportunity was an intermediate fact requiring separate proof beyond reasonable doubt, distinct from the State's onus to prove the elements of the offence beyond reasonable doubt. The position as to each of alibi and opportunity was materially different.
4. As to alibi, of course, the matters raised in the alibi could have provided a ground on which the judge was not satisfied beyond reasonable doubt of the guilt of the appellant. If the judge had been unable to exclude the reasonable possibility that the appellant was in Moora when Ms Dodd disappeared from North West Road, so that the alibi had not been disproven beyond reasonable doubt, a verdict of acquittal was required. But, in excluding any such reasonable possibility, the State relied, and was entitled to rely, upon the same matters as it relied to establish guilt, namely those set out at [531] above. The judge did not need to be satisfied beyond reasonable doubt that the appellant's alibi was excluded before deciding whether they were satisfied beyond reasonable doubt that the appellant killed Ms Dodd. It was open for the judge to be satisfied beyond reasonable doubt, by the State evidence as a whole, both that alibi was disproved and that guilt was proved.
5. Opportunity was relied on by the State as one of several circumstances from which the inference of guilt could be drawn. It was, thus, a strand in the cable, not a link in the chain, and so did not require distinct proof beyond reasonable doubt.[227]
6. In these respects, I accept the respondent's submissions.[228]
7. At trial, there was no single indispensable link in the reasoning invited by the State. That is because it relied on evidence relating both to the earring and to the hair found in Mr McConnell's ute. In my view, the effect of the judge's non‑satisfaction that the hair belonged to Ms Dodd was that proof that the earring was Ms Dodd's became an indispensable link in a chain of reasoning to guilt. Consequently, that fact had to be proved beyond reasonable doubt. On appeal, the State accepted that this was so.[229]
8. As I have explained, in my view, neither disproof of alibi nor proof of opportunity was required beyond reasonable doubt as a separate and distinct matter. However, in my view, whether any error on the judge's part concerning opportunity or alibi occasioned a miscarriage of justice must be assessed by reference to the reasoning employed by the judge in coming to the verdict of guilty.

1. As Buss P has explained at [352] ‑ [358], the circumstantial nature of the State's case required the finder of fact to consider the evidence as a whole, and not in a piecemeal fashion. In doing so, it would have been open to a tribunal of fact, after considering the evidence as a whole, to make findings as to the earring and to then take those findings into account in evaluating the questions of alibi and opportunity. A finding in relation to the earring was capable of resolving any doubts that may have otherwise existed as to alibi and opportunity. But, as explained below, that is not how the primary judge reasoned.
2. In coming to her conclusions on the questions of opportunity and alibi, the judge's reasons do not refer to the evidence concerning the earring. As was ultimately accepted by the respondent,[230] her Honour's reasons cannot be read as impliedly relying on the evidence or findings concerning the earring in coming to the finding on opportunity. Indeed, given that the judge relied on her finding as to opportunity in coming to her conclusion, beyond reasonable doubt, that the earring belonged to Ms Dodd, it would have been circular and impermissible for her Honour also to have relied on the findings as to the earring in reaching her conclusions concerning opportunity.
3. It is clear, therefore, that the judge reached her conclusions as to opportunity independently of the evidence and findings concerning the earring. The same is true of the issue of alibi, with which the judge dealt together with opportunity. Whether appellable error in the judge's findings as to alibi and opportunity has been demonstrated must be evaluated in that framework.

1. The critical issue on ground 1 is whether the judge erred in finding that alibi had been disproved beyond reasonable doubt.
2. I agree with Buss P, for the reasons he gives at [372] ‑ [391] and for the reasons below, that it was open to the primary judge to be, and her Honour did not err in being, satisfied beyond reasonable doubt that the appellant was not still in Moora at noon on 12 July 1999, and to be so satisfied without taking into account any finding as to the earring. (In so saying, I leave aside the alleged error the subject of ground 3, with which I will deal separately below.)
3. Witnesses at the trial gave evidence of seeing the appellant in Moora in the morning of 29 July 1999. However, none of the witnesses gave evidence supporting the appellant's assertion that he left Moora sometime after noon. It was only what the appellant had told the police that provided evidentiary support for any conclusion that the appellant was still in Moora at noon. The weight to be given to what the appellant told the police was, of course, a matter for the judge to determine. In determining that question of weight, the judge was entitled, indeed obliged, to take into account the other evidence tendered at the trial.
4. In evaluating whether the appellant's alibi was disproved, the judge took what the appellant had told the police at its highest, viewed from the appellant's perspective. Subject to one qualification, she assumed, favourably to the appellant, that the appellant went to all the businesses in Moora that he told the police he had visited, in the order he described.[231] The qualification is that the judge did not mention the fact that the appellant said that, immediately after the Post Office, he went to the newsagency to get another tax pack. Neither party's submissions referred to this omission. Insofar as the judge relied on her conclusion, from the till rolls at Supa Valu, that the appellant's purchase there was concluded by between 11.02 am and 11.06 am, the judge's omission to refer to the appellant's earlier visit to the newsagency was immaterial. That is because her Honour's findings in respect of the appellant's timing at Supa Valu rested on her identification of the 11.02 am to 11.06 am transaction as the sole transaction which could have been conducted by the appellant consistently with his account to police and the facts her Honour had found. The appellant having visited the newsagency before Supa Valu is not inconsistent with that identification of the appellant's transaction. Consequently, any reference to his possible timing at the newsagency would have made no difference to the findings her Honour made as to the appellant's timing at places he told the police he went subsequently.
5. Given the objective evidence as to the time at which the appellant was at Australia Post, what was critical was the duration of the things the appellant did after he was at Australia Post at 10.35 am. Thereafter, on the appellant's account, he went to four places: the newsagency, Supa Valu, the butcher and the bakery. As I have said, the judge did not refer to the newsagency trip in her analysis of what the appellant did in Moora. The judge accepted it was likely that the appellant went to the Supa Valu store, in accordance with his habit. It was clear from other evidence that the appellant did visit the butcher. The judge was not positively satisfied that the appellant visited the bakery, but proceeded on the basis that it was possible that he did so. In proceeding in that fashion, the judge evidently allowed for that possibility in her evaluation of whether she was satisfied beyond reasonable doubt as to the appellant's alibi.
6. As Buss P has outlined, the judge made findings as to the likely duration of each such visit. Proceeding on that assumption, the judge concluded that it was likely that the appellant left Moora around 11.30 am, and was satisfied beyond reasonable doubt, excluding any reasonable possibility to the contrary, that his time of departure was not after noon.[232] To my mind, the manner in which that conclusion is expressed reveals and reflects her Honour's approach to whether the alibi had been disproved beyond reasonable doubt. Her Honour evidently recognised that the process of estimation of the times taken for each of the appellant's visits was necessarily an imperfect one. A degree of uncertainty always attends estimations. Consequently, her Honour distinguished between what was likely (that the appellant had left about 11.30 am) and what could be said beyond reasonable doubt (that the appellant did not leave later than noon). In effect, the additional 30 minutes from 11.30 am to noon provided a margin of comfort sufficient to account for the uncertainty arising from the process of estimation for her Honour to be satisfied beyond reasonable doubt that the appellant did not leave some time after noon. Taking into account her Honour's advantage in having heard the evidence and received it in its entirety over a period of several weeks,[233] I am not persuaded that her Honour erred in so concluding.
7. Consequently, ground 1 has not been established.

1. The appellant submits that even if, on proper analysis, opportunity did not need to be proved beyond reasonable doubt, that was the basis on which the judge proceeded, which is what matters for a ground concerned with miscarriage.[234]
2. I agree with Buss P, for the reasons that he gives at [435],[235] that the primary judge did not proceed on the basis that the State was required to prove beyond reasonable doubt that the appellant had the opportunity to encounter Ms Dodd on North West Road between about 11.40 am and about 12.20 pm. As I have already indicated, in my view, the manner in which her Honour expressed her conclusions about the appellant's movements demonstrates otherwise. In particular, her Honour's conclusions as to alibi are expressed to be to the exclusion of any reasonable possibility to the contrary. By contrast, the judge's finding as to opportunity is expressed by reference to what is likely.[236] This contrast is reinforced by her Honour's express exclusion of any reasonable possibility to the contrary in her conclusions as to the earring.[237]
3. What her Honour said at [340] of her reasons might be taken to be a direction that opportunity had to be proved beyond reasonable doubt. The respondent conceded that this was so.[238] However, in my view, that does not reflect her Honour's critical conclusions and the terms in which those conclusions are expressed. I am satisfied, on a reading of the primary judge's reasons as a whole, that she made findings as to opportunity having regard to what was likely, without a need to prove opportunity beyond reasonable doubt. Thus, if and insofar as the judge directed herself at [340] that opportunity had to be proved beyond reasonable doubt, her Honour did not act on that direction. Further, for reasons I have already explained, in my opinion it was not necessary that opportunity be distinctly proved beyond reasonable doubt. For these reasons, any error in what her Honour said at [340] was favourable to the appellant and, more significantly, immaterial to her Honour's reasoning and conclusion.
4. I agree with Buss P that the primary judge did not err in finding that the appellant had the opportunity to encounter Ms Dodd on 29 July 1999 at about 12.05 pm. (Again, I leave aside the alleged error the subject of ground 3.) Subject to what follows, I agree with Buss P's reasons for so concluding.
5. As already noted, whether a judge's finding of fact reveals appellable error depends upon whether the judge's finding was reasonably open, not whether that finding was, in the view of the appellate court, correct.[239] In determining whether error has been demonstrated, weight must be given to the judge's considerable advantage in receiving and considering the entirety of the evidence and in having the opportunity to reflect upon, and draw conclusions from, the evidence as a whole.[240]
6. Many of the appellant's submissions on ground 2 were directed to whether the judge should have had a reasonable doubt about opportunity, often being couched in terms of 'reasonable possibilities' that the appellant did not have the opportunity to encounter Ms Dodd. As I have explained:

(1) in my respectful view, the only intermediate fact that was an indispensable, and distinct, step requiring proof beyond reasonable doubt, was the finding that the earring found in Mr McConnell's car belonged to Ms Dodd; and

(2) the judge did not approach the question of opportunity as though she needed to be satisfied of it beyond reasonable doubt.

Further, in my view, the State was not required to prove, and the judge was not required to find, beyond reasonable doubt that Ms Dodd had not disappeared from North West Road before 12.05 pm.

1. In the framework that opportunity did not need to be proved beyond reasonable doubt, the appellant's submissions concerning the evidence of Mrs Crouch and Mr Barrett, and concerning the judge's findings as to that evidence, do not establish that the judge's finding of opportunity was not reasonably open.
2. The appellant emphasises that, in considering the appellant's movements, the judge expressed some doubt as to Mrs Crouch's estimate of when she left Moora, namely at 11.45 am.[241] The judge observed that, adding the times Mrs Crouch said it took her to do her chores to the time of the banking receipt, she should have been ready to leave Moora closer to 11.30 am.[242] Yet, the appellant submits, in earlier analysing Ms Dodd's movements, the judge did not give him the benefit of this doubt as to Mrs Crouch's time estimate.[243] The appellant submits that if Mrs Crouch had left at 11.30 am, she would have reached Ms Dodd's location before the appellant did; the fact that Mrs Crouch did not see Ms Dodd, therefore, raised the reasonable possibility that Ms Dodd was gone from the road before the time when the appellant reached her.[244]
3. If the issue was whether opportunity was independently proved beyond reasonable doubt, these submissions would have considerable force. However, as I have said, that was not the issue. The judge found opportunity to be established on the balance of probabilities. In my view, Mrs Crouch's evidence was not inconsistent with the judge's finding that the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm. On Mrs Crouch's evidence, she left Moora at 11.45 am. Travelling at the speed limit, she would have reached the location 2 km east of the 961 marker, where Ms Dodd otherwise would have been, a little after 12.10 pm, thus about five minutes after the appellant and so without overtaking him. The judge's expression of doubt as to whether Mrs Crouch may have left before 11.45 am did not preclude, or render erroneous, her finding at [228] that Mrs Crouch's evidence was consistent with Ms Dodd not being on North West Road at 12.10 pm.
4. For the reasons given by Buss P at [385], I am not persuaded that it is reasonably possible that, had the judge not made the logical error in [363] of her reasons, her Honour would have made a different finding as to opportunity.
5. The appellant submits that the evidence of Mr Barrett should have given rise to a reasonable doubt about whether the appellant had the opportunity to encounter Ms Dodd at about 12.05 pm because his evidence gave rise to a reasonable possibility that Ms Dodd had disappeared from North West Road before 12.05 pm.[245] I have already explained why I do not accept that opportunity needed to be separately proved beyond reasonable doubt.
6. The judge was required to evaluate, weigh and reconcile a considerable volume of evidence. In setting out her reasons, the judge considered some aspects of the evidence in stages, at times foreshadowing findings to be made later in the reasons. The judge dealt with Mr Barrett's evidence in this fashion in the passage I have set out at [555] above. In that passage, the judge considered how Mr Barrett's evidence interacted with other evidence and how it related to her findings, to be set out later, as to when the appellant left Moora. In doing so, the judge considered three scenarios as to when Mr Barrett left relative to when the appellant left: five or more minutes after the appellant; a few minutes after; and before the appellant.
7. As to the first scenario, the judge observed that if Mr Barrett had left the depot in Moora even five minutes after the appellant drove out of Moora along Dandaragan Street, it did not seem that Mr Barrett would have caught up with the appellant before the appellant reached the location of the 961 marker.[246] The appellant submits that this finding reveals error in that, if Mr Barrett had driven at either of the 96 or 116 km per hour speeds considered by her Honour, given the appellant's maximum speed of 80 km per hour, Mr Barrett would have caught up with the appellant by the location of the 961 marker.[247]
8. I do not accept this submission. The judge found that the location of the depot would add 'a couple of minutes' onto Mr Barrett's journey before he left Moora along Dandaragan Road.[248] The judge evidently favoured the conclusion that Mr Barrett travelled at an average speed of 96 km per hour.[249] In light of those matters, there is no error in the judge's observation as to the first scenario. Travelling at 96 km per hour, and taking into account the extra couple of minutes, Mr Barrett's time of travel to the point 2 km east of the 961 marker would have been only about four minutes less than the appellant's.
9. In making her critical findings, the judge did not overlook Mr Barrett's evidence. To the contrary, she carefully weighed it with all the other evidence, including Mr Stribley's evidence.[250]
10. In my view, on the whole of the evidence, it was open to find that the probabilities favoured the Telstra vehicle seen by Mr Stribley being Mr Barrett, and to find that Mr Stribley saw Ms Dodd, then the appellant in the ute, and then Mr Barrett five to ten minutes after the ute.
11. So far as I can discern, however, while identifying that as a 'very reasonable and possible' scenario,[251] the judge did not expressly make a finding to this effect. Rather, in [237] ‑ [239], the judge identified that, on each of the three scenarios, there were possible reasons why Mr Barrett did not see Ms Dodd. As to the second and third scenarios, while recognising the possibility that this was because Ms Dodd was no longer on North West Road, the judge identified that Mr Barrett may not have seen her because he was preoccupied with getting to Jurien Bay or because, as the road was undulating, there may have been very little time for him to see her.[252] In stating, at [318], her conclusions as to Ms Dodd's movements, the judge said that she had given reasons why the failure of Mr Barrett to see Ms Dodd was not decisive. That is evidently a reference to what her Honour had said at [236] ‑ [239].
12. Thus, while favouring the first scenario, the judge took all the scenarios into account and, after weighing and evaluating the whole of the evidence, found that Mr Barrett's evidence was not inconsistent with her finding of opportunity. Again, if opportunity had been required to be independently proved beyond reasonable doubt, there would be considerable force in the appellant's submissions as to Mr Barrett's evidence. However, as I have said, that was not, as the judge understood, what was required.
13. For these reasons, in my opinion, Mr Barrett's evidence did not preclude, as not reasonably open, and does not otherwise reveal appellable error in, the judge's finding that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm.
14. Similarly, for the reasons given by Buss P, Mr Peacock's evidence did not weigh decisively against the judge's finding, on the balance of probabilities, that the appellant had the opportunity to encounter Ms Dodd on North West Road at about 12.05 pm.
15. I have, as the appellant invites, considered the cumulative effect of the matters to which the appellant points. To my mind, those matters would have precluded a finding beyond reasonable doubt that opportunity was independently proved. However, in my view, for the above reasons (which incorporate Buss P's reasons), the cumulative effect of those matters did not preclude, by rendering not reasonably open, a finding, on the balance of probabilities, that the appellant had an opportunity to encounter Ms Dodd on North West Road at about 12.05 pm.
16. For the above reasons, ground 2 is not made out.

1. Ground 2A is founded on the success of ground 2.[253] Consequently, it fails with the rejection of ground 2.

1. By ground 3, the appellant contends that, in [438] and [439] of her Honour's reasons, the judge erred in:

(a) using the appellant's previous conviction for serious offences against Ms M, evidence of which was admitted under s 31A of the Evidence Act 1906 (WA), as an adverse basis for evaluating the weight to be attributed to what he had said in his police statement about where he went in Moora and the timing of his movements; and

(b) concluding that she was 'not minded to accept' aspects of what the appellant had said in his police statement without 'independent proof' or 'independent evidence'.

1. The appellant's principal submissions are summarised by Buss P at [168] - [175]. The appellant advances two main arguments, respectively supporting paragraphs (a) and (b) of the ground:

(1) The convictions did not logically bear on the appellant's credibility because they related to offending that occurred in 2007, many years after his police statements, and the offending was of a nature that did and does not bear on credibility.[254]

(2) In any event, the trial judge's approach to the appellant's police statements was flawed, including because it failed to give any effect to the modified Longman warning(s) that her Honour gave herself at [56] - [61] of her reasons.[255]

1. As already noted, the appellant's alibi was embodied in the statements he made to police on 3 and 5 August 1999. The appellant did not give or adduce evidence on oath or affirmation at the trial. There was evidence from some witnesses that confirmed that the appellant had visited certain of the businesses that he said in his statements he had visited. No witness gave evidence supporting the appellant having visited the bakery or supporting the appellant's assertion as to the time he left Moora to drive back to his home, namely 'after 12 pm'.

1. The parties' submissions advance competing constructions of the judge's reasoning in [438] and [439] of her reasons.
2. I accept the appellant's submission that, in expressing the conclusion in [439], the judge in effect incorporated the reasoning in the first sentence of [438]. In [438], her Honour said:

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. (emphasis added)

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.

Comparison of the language of the first sentence of [438] and of [439], and the use in [439] of the connecting word 'neither', seems to me to demonstrate that the conclusion in [439] was, like the conclusion in [438], based on the two matters referred to in the opening phrase of [438]. In other words, both conclusions were based upon 'the [appellant's] conviction for serious offences and the fact that his statement to police is not evidence given on oath or affirmation.'

1. In my view, in so reasoning, the first matter upon which the judge relied was the fact of the convictions as evidence of the appellant's bad character; contrary to the respondent's submission,[256] her Honour did not rely on the tendency revealed by the convictions. In the relevant paragraphs, the judge did not refer to any tendency or propensity of the appellant, but only to his 'conviction for serious offences'. This part of the judge's reasons precedes, to a substantial degree, the judge's analysis of, and conclusions about, the propensity evidence.[257] Nothing in this part of the judge's reasons explicitly refers to her Honour's subsequent analysis of the propensity evidence and the propensities or tendencies that it revealed. Nor, to my mind, is there any implicit reference.
2. The respondent submits that [438] - [439], read with their preceding paragraphs, should be read as finding that the totality of the other evidence overwhelmed any weight to be attributed to what the appellant had told the police. As explained at [674] below, in my view, such a finding was open to the trial judge. However, to my mind, the judge's reasons do not reveal such reasoning.
3. The judge set out what the appellant had told the police at [323] ‑ [329] of her reasons. Her Honour re‑articulated that the appellant's case was that he had told the police the truth in that he had left Moora after 12.00 pm and got home around 1.00 pm and did not encounter Ms Dodd on his way home.[258] At [340], her Honour said:

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 kill her. ...

1. The judge then gave careful and detailed consideration to all of the evidence bearing on the issues of alibi and opportunity, from [341] ‑ [413]. In that process, the judge referred to what the appellant had told the police as to what he had done and when he had done it; see, for example, [363], [366], [370], [376], [378], [381], [405] and [407]. In doing so, the judge used what the appellant had told the police as the frame of reference for examination of the evidence. However, nowhere from [341] - [413] did the judge make findings, or even observations, as to the credibility or reliability of what the appellant had told the police. It was not until the judge set out her conclusions at [433] ‑ [439] that the judge made observations or drew conclusions specifically directed to the credibility or reliability of, or the weight to be given to, the appellant's statements to the police.
2. An element of the process of weighing the alibi against, and in light of, the evidence as a whole is to consider what weight is to be attributed to the evidence - in the form of what the appellant told the police - in support of the alibi and bearing on the opportunity issue. What is said in [438] and [439] does not reflect a conclusion that the evidence as a whole had overwhelmed what the appellant told the police - in other words, that it was the force of the other evidence and its inconsistency with the appellant's account that led her Honour to reject the appellant's account. Rather, it is directed to the appellant's statements to police, considering their intrinsic weight and drawing an adverse conclusion as to that intrinsic weight. That is reflected by the terms of that conclusion - not to accept what the appellant had said without independent evidence to support it - which are terms conventionally used to express an adverse credibility finding.
3. Thus, what is said in [438] and [439] seems to me to be a distinct element of the judge's resolution of the process of weighing the appellant's statements against, and in the light of, the evidence as a whole. Moreover, what is said in [438] and [439] is not an expression of, and goes distinctly further than, a conclusion that the appellant's unsworn statements should be discounted where they were in conflict with other evidence - in effect, her Honour found that, unless they were positively supported by other evidence, she declined to accept them.

1. As has been seen, in [438] ‑ [439], the judge used the appellant's previous convictions for serious offences as part of the basis for attributing diminished weight to what the appellant said in his police statements as to where he went in Moora and his assessment as to his timing there. As recorded above, one strand of the appellant's case on appeal contends that such use was impermissible. Such a use is, so far as I am aware, novel. The respondent could not identify any case in which a conviction admitted as propensity evidence, or indeed any admitted propensity evidence, had been used to diminish the intrinsic credibility of an accused's statement to police.[259] My research has not revealed any such case.[260] At trial, the prosecution did not invite the judge to so use the appellant's convictions, as the respondent acknowledged on appeal.[261]
2. However, it is not necessary to decide whether the judge's use of the appellant's convictions to diminish the inherent credibility of his statements to the police was impermissible and, therefore, in itself, reveals error. That is because the judge used the convictions in coming to a specific adverse credibility conclusion - that the appellant's statements would not be accepted unless supported by independent evidence. For the reasons below, I accept the appellant's contention that the judge erred in drawing that conclusion, which I will refer to as the adverse credibility conclusion.
3. A trial judge has a considerable advantage over an appellate court in weighing and reconciling the varying and conflicting evidence of many witnesses, and in weighing the appellant's statements against, and in light of, the other evidence. However, as explained above, the impugned finding is not of that nature. Rather, it is a conclusion as to the intrinsic worth of what was said by the appellant in his statements based, not upon an evaluation of its content but, upon its source - the appellant (having been convicted of previous offences) - and upon its form - not being on oath or affirmation. In determining whether such a conclusion should be drawn, the trial judge had no advantage over this court.
4. As I have said, the adverse credibility conclusion was expressed in terms conventionally used to express an adverse conclusion as to the credibility of a witness who gave evidence on oath or affirmation at trial. When a witness gives evidence at trial, there are many different bases on which such a conclusion might be reached. Some are based on the unsatisfactory manner in which a witness gave evidence, or the unsatisfactoriness of particular aspects of the content of what the witness said in their evidence. In some cases, a particular feature of the witness's relationship to the events the subject of their evidence and the issues for decision may sustain a conclusion that their evidence should be approached with caution and not accepted without corroboration. Historically, accomplices provided an example of that.[262] In some cases, a criminal record, for example for offences of perjury or of dishonesty, may sustain a conclusion of this kind.
5. In the present case, the judge's adverse credibility conclusion was not based on the content of anything the appellant had said, but on the two specific matters identified in the opening phrase of [438]. In my respectful opinion, those two matters provided an insufficient foundation for the judge's adverse credibility conclusion - declining to accept what the appellant had said in his police statements unless it was supported by independent evidence.
6. The fact that a statement to police is not made on oath or affirmation is, of course, relevant to the weight to be given to it. It is open to the court to give less weight to such a statement than it gives to evidence on oath or affirmation. To the extent that what the appellant said in his statements was inconsistent with other evidence that was given on oath or affirmation, it was open to the court to prefer the other evidence and, ultimately, to find that it disproved, beyond reasonable doubt, what the appellant had said in his statements. Had I accepted the respondent's construction of [438] and [439] as expressing a conclusion that the totality of the other evidence overwhelmed any weight to be attributed to what the appellant had told the police, it would reveal no error. In determining ground 1, I have concluded that it was open to the judge to be satisfied beyond reasonable doubt that the appellant's alibi - that he did not leave Moora before noon - was false. Thus, I accept that it was open to conclude that the evidence as a whole sustained the rejection, beyond reasonable doubt, of what the appellant had said to the police as to the timing of his movements and, in particular, as to the time of his departure from Moora, which statements were, of course, not on oath or affirmation.
7. However, as explained at [664] - [668] above, the impugned finding is not of that nature. Rather, it is a conclusion as to the intrinsic worth of what was said by the appellant in his police statements based, not upon an evaluation of its content but, upon its source - the appellant - and upon its form - not being on oath or affirmation. In my respectful view, the fact that what the appellant had said was not on oath or affirmation was not a ground to decline to accept what the appellant had said in his statements, regardless of its content, unless it was positively supported by other evidence. I agree with Buss P's conclusion at [464] that the judge was not entitled to approach the evaluation of the weight to be given to the appellant's alleged alibi on the basis that, as the alibi was not by sworn or affirmed evidence from the appellant, it was necessary for the appellant to support the alibi by reference to independent evidence in order for it to be accepted.
8. Nor, in my respectful opinion, was it open to conclude that the appellant's convictions, alone or in combination with the fact that his statements to police were not on oath or affirmation, warranted a conclusion that what the appellant had said in support of his alibi would not be accepted unless it was supported by independent evidence. I am content to assume, favourably to the respondent, that the appellant's convictions for his offending in 2007 were capable of diminishing the weight to be attributed to his statements. That would be on the basis that those convictions reveal defects in character which were highly likely to have been present in 1999 and which were capable of adversely impacting the appellant's credibility because they were not the conduct of a decent person. While that may be so, the conduct the subject of those convictions, although undoubtedly appalling, does not bear directly upon honesty.[263] Taken at their highest, to my mind, those convictions could not sustain the judge's approach to the appellant's statements that, unless positively supported by independent evidence, they should not be accepted.
9. Moreover, apart from the insufficiency of the basis for the adverse credibility conclusion, the effect of the judge's adverse credibility conclusion was to put to one side what the appellant had said, without regard to its content, unless it was supported by independent evidence. Yet, as the judge had directed herself,[264] the passage of so many years had very substantially diminished the appellant's opportunity to obtain independent evidence to prove when he was in Moora and to support his alibi. In the concluding part of the reasons, the judge referred to the appellant's disadvantages arising from the delay as a matter she had taken into account in reaching her conclusions.[265] However, in making the impugned findings in [438] and [439], the judge made no reference to the modified Longman warning she had given. Determining the weight to be given to the appellant's alibi as embodied in his statements was a critical step, in which the judge was obliged to have regard to the forensic disadvantage(s) suffered by the appellant. In the absence of express reference in this part of the reasons, in my view, it is not implicit in her Honour's reasons, even having regard to the references to disadvantages in the direction and concluding part, that she did so. Thus, in my respectful view, in making the impugned findings the judge did not act consistently with the Longman warning she had correctly given.
10. For these reasons, in approaching what the appellant had said as to his movements and timing in Moora on the critical day in the manner already explained, in my respectful opinion, the judge erred.

1. In a case of trial by jury, a miscarriage of justice occurs whenever the rules of evidence or procedure are not observed.[266] On that approach, the error I have found is, in itself, a miscarriage of justice. However, the approach taken by the plurality in Filippou may suggest that, in a case of trial by judge alone, a different approach is taken to the miscarriage question, so that there is a miscarriage of justice only if it is reasonably possible that, but for the breach, the verdict may have been different. As already noted, the plurality concluded that, because the trial judge had found that any loss of self-control was excluded beyond reasonable doubt, any error as to the test applicable to s 23(2)(b) of the Crimes Act 1900, concerning provocation, was of no consequence. In other words, the plurality did not approach the miscarriage question on the basis that any departure from a trial according to law is, of itself, a miscarriage of justice. Rather, regard was had to the judge's reasons and because those reasons indicated that the error of law was of no consequence, it did not occasion a miscarriage of justice. It is not necessary to decide the question as to the correct approach because, for the reasons that follow, in my opinion, the error the subject of ground 3 deprived the appellant of the possibility of a verdict of acquittal.
2. Whether, without the impugned approach to credibility, the judge's verdict might have been different depends upon whether, without that approach, the judge may have come to a different conclusion on either or both of the issues of alibi and opportunity. In my view, it is reasonably possible that, if the judge had not taken the impugned approach to credibility, she may have come to a different conclusion in respect of the questions of alibi and opportunity.
3. In my view, the conclusions reached by the judge in [438] of the primary reasons were immaterial to the issues of alibi and opportunity. As noted at [631] and [632] above, subject to the qualification regarding the newsagency, which was immaterial, the judge assumed, favourably to the appellant, that he had visited all the places he told the police he had visited in evaluating both whether:

(1) she was satisfied beyond reasonable doubt that the alibi was disproved - in other words, that the appellant had left Moora by noon; and

(2) she found that the appellant had an opportunity to encounter Ms Dodd.

That being so, the judge's statement that she was not minded to accept the appellant's statements to the police as to the places he had visited was immaterial.

1. However, in my view, the same cannot be said of the judge's like conclusion in [439] as to the appellant's assessment of the time he did certain things. The appellant's assessment of the time he did things includes what he said as to the time that he left Moora. Indeed, while he articulated the duration of some of his activities, in his statements to the police, apart from his assessment of the time he left Moora, the appellant did not attribute a time to other things that he said he did while in Moora. Self‑evidently, the time that the appellant said he left Moora was of critical significance - it was the subject of the appellant's alibi and was of central significance to the issue of opportunity. Both of those issues were at the heart of the defence case at trial. Reasoning to the alibi and opportunity conclusions that the judge reached necessarily entailed rejection of the appellant's account to the police of the time he left Moora. The structure of her Honour's reasons[267] reveals that [439][268] is directed to determining the issue the judge articulated in [433]: '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'. One element of determining the issues of alibi and opportunity was the judge's evaluation of the weight to be attributed to what the appellant had told the police as to the timing of his departure from Moora. What is said at [439] of the primary reasons represents the judge's conclusion on that critical issue. While [439] follows the judge's expression of her findings as to alibi and opportunity at [434] and [436], respectively, the paragraphs from [433] - [439] of the judge's reasons are to be read as a whole.
2. As already explained, what is said in [439] is a distinct element of the judge's resolution of the critical process of weighing the appellant's statements against, and in the light of, the evidence as a whole.
3. For these reasons, in my respectful view, it is reasonably possible that had the judge not taken the approach to credibility reflected in [438] and [439] and drawn the conclusion she did in [439], she may have come to a different conclusion on the questions of alibi and opportunity and, consequently, may have come to a different verdict.
4. Thus, the error the subject of ground 3 gave rise to a miscarriage of justice.

1. The respondent relied on the proviso in response to ground 3. It submits that the fact the appellant's statements to the police were not on oath or affirmation entitled the judge to give them little weight, so that, given the 'relatively inconsequential use' that the judge made of that evidence, no substantial miscarriage of justice arose.[269]
2. I do not accept that the proviso can be applied so as to dismiss the appeal.
3. For the reasons at [682] - [683] above, it is reasonably possible that, had the judge not made the error the subject of ground 3 as it relates to [439] of the primary reasons, she may have come to a different conclusion on the questions of alibi and opportunity and, consequently, may have come t[270] different verdict.270 On the approach taken by Gageler J in Filippou, that means that there was a substantial m[271]arriage of justice.271 On the approach of the plurality in Filippou, there was a substantial miscarriage of justice because the appellant was denied a chance of acquittal that w[272]fairly open to him.272
4. The analysis in the preceding paragraph involves attention to whether the misdirection might have made a difference to the trial judge's verdict. On the prevailing majority view in the High Court, that would appear not to be the correct enquiry. The majority in Kalbasi v The State of Western Australia observed, in the context of a jury trial, that the appellate court's determination of whether the proviso applies does not turn on 'its estimate of the verdict that [might have been returned] had the error not occurred'.[273] Rather, the task of determining whether, notwithstanding an error, there has been no substantial miscarriage of justice is committed to the appellate court.[274] In undertaking that task the following principles apply:

(1) The appellate court must undertake an independent assessment of the whole of the record of the trial.[275] That examination requires account to be taken of the guilty verdict.[276]

(2) It is a necessary, although not sufficient, condition of the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt.[277] That is because the conviction of a person whose guilt has not been proved beyond reasonable doubt will always be a substantial miscarriage of justice.[278]

(3) Consideration of the application of the proviso requires identification of, and consideration of the nature and effect of, the error(s) made at trial.[279] Some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt.[280]

(4) There are natural limitations on the appellate court's ability to determine, based on the record, whether guilt was proved beyond reasonable doubt, particularly in cases in which the credibility of witnesses is of importance. In such cases, because the appellate court has not seen and heard the witnesses give their evidence, the court may be precluded from concluding that guilt was proved beyond reasonable doubt.[281]

(5) In some cases, the appellate court may rely on the guilty verdict in a manner that enables those limitations to be overcome.[282] However, the appellate court will not be able to rely on the verdict where the verdict may have been affected by the error(s).[283]

(6) In some extreme cases, which are likely to be rare, the appellate court may be able to rely on its own conclusion, based on the record, that oral evidence contrary to the prosecution case is obviously false.[284] The respondent did not suggest that this was such a case.

(7) Some errors are so fundamental or breach the fundamental presuppositions of the trial so as to be beyond the reach of the proviso regardless of whether, in the eyes of the appellate court, the evidence at trial proved guilt beyond reasonable doubt.[285] This is not a case of that kind.

1. In my view, applying those principles, it cannot be said that there was no substantial miscarriage of justice.
2. As already explained, in my view, it is reasonably possible that the judge's error the subject of ground 3 affected her Honour's conclusions as to alibi and as to opportunity. That, in turn, affected the judge's conclusion concerning the earring, as the judge relied on her finding of opportunity in excluding the reasonable possibility that the earring belonged to someone other than Ms Dodd.[286] Thus, in my respectful view, the judge's error the subject of ground 3 infected her conclusions as to the critically important issues of alibi, opportunity and the earring. That presents a significant obstacle to the application of the proviso.
3. This court has not seen and heard the numerous witnesses who gave evidence relevant to the issues of alibi and opportunity. As I have explained, the judge weighed the evidence of the appellant's out of court statements to police against the other evidence, including that of the numerous relevant witnesses, in order to reach satisfaction as to disproof of alibi and proof of opportunity. In turn, those findings, founded on the outcome of that weighing process, supported the judge's finding as to the earring. Therefore, in the process of reaching a verdict, evaluating, reconciling and resolving the conflicts in that evidence was very significant. In those respects, the trial judge's advantage in having seen and heard the witnesses was, thus, significant. As explained above, in my view, it is reasonably possible that, without the error the subject of ground 3, the judge's verdict may have been different. Consequently, the judge's verdict does not enable this court to be satisfied, without having seen and heard the relevant witnesses, that guilt was proved beyond reasonable doubt. Working from the record, this court has no other gauge for evaluating, reconciling and resolving the conflicts in the evidence, and for weighing the appellant's statements in support of his alibi in light of, and against, that evidence. In some cases of trial by judge alone, the judge's unchallenged credibility or factual findings can be relied on by the appellate court.[287] However, any aspect of the primary court's reasoning that is, or may be, infected by error cannot be used by the appellate court in the application of the proviso.[288] I have concluded, at [667] - [668] above, that what the trial judge said at [439] of the primary reasons was an element of the judge's resolution of the process of weighing the appellant's statements against, and in light of, the evidence as a whole. Therefore, working from the record, this court cannot conclude that guilt was proved beyond reasonable doubt.
4. Also, the application of the proviso could not be sustained by the different path of reasoning identified at [701] below. As there explained, in my view, on an assessment of the whole of the evidence, it was open to be satisfied beyond reasonable doubt of the appellant's guilt by a path of reasoning that differs significantly from the path adopted by the trial judge in:

(1) making a finding, beyond reasonable doubt, as to the earring, without having made any finding as to opportunity; and

(2) then, using that finding to resolve any doubts as to opportunity and alibi.

1. However, even if this different approach were taken, with primary focus on the earring evidence, as Buss P has explained at [352] - [353], the whole of the evidence had to be considered. While it was open to make a finding as to the earring without first making a finding as to opportunity, the evidence as to opportunity and alibi was relevant to, and so had to be considered before making, any finding as to whether the earring belonged to Ms Dodd. Whether a tribunal of fact might adopt this different path of reasoning depends upon its assessment of the whole of the evidence, including its assessment of the opportunity and alibi evidence. Consequently, not having seen and heard the witnesses, in my view, this court cannot say that guilt was proved beyond reasonable doubt by that different path of reasoning.
2. Further, even if, on my assessment of the record, I formed the view that guilt was proved beyond reasonable doubt by employment of that different path of reasoning, there would be a real question as to whether the proviso could be applied in that manner. On one view at least, applying the proviso in a manner that employs a significantly different path of reasoning might be thought to be impermissibly exercising the function of the trial judge and to substitute trial by appeal court.[289] However, as I have said, that question does not arise.
3. For these reasons, I am not persuaded that the appeal should be dismissed under s 30(4) of the Criminal Appeals Act.
4. Consequently, I would uphold ground 3.
5. It is, therefore, unnecessary to consider whether, in reaching the adverse credibility conclusion in [438] and [439], the judge breached the requirements of procedural fairness. The appellant may have advanced a contention to that effect,[290] but the position was not entirely clear and the respondent did not address such a contention. Had it been necessary to determine the merits of such a contention, I would have sought further submissions from the parties, but, ground 3 having been otherwise upheld, it is not necessary to do so.
6. To some, it may seem strange that an error in one or two paragraphs of a careful judgment of almost 200 pages could lead to a successful appeal and a retrial. However, the truth of what the appellant told the police was at the heart of his case at trial; acceptance of his account of when he left Moora would have required his acquittal. In my respectful view, the judge's erroneous discounting, unless supported by independent evidence, of what the appellant told the police occasioned a miscarriage of justice and a substantial one.

1. I agree with Buss P, for the reasons that he gives, that it was open to the trial judge to be satisfied beyond reasonable doubt as to the appellant's guilt of the offence of murder. As his Honour has explained, it was open to the judge to find, as she did:

(1) that she was satisfied beyond reasonable doubt that the appellant's alibi was false;

(2) independently of the evidence concerning the earring, that, on the balance of probabilities, the appellant had the opportunity to encounter Ms Dodd on North West Road on 29 July 1999 at about 12.05 pm; and

(3) beyond reasonable doubt, that the earring found in the car seat cover belonged to Ms Dodd.

1. Further, on my review of the record, it was also open, on an assessment of the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt by a somewhat different path of reasoning. In my view, it was open to a tribunal of fact, as noted at [625] above:

(1) to be satisfied beyond reasonable doubt, having considered the whole of the evidence including that bearing on opportunity, but without making a finding as to opportunity, that the earring found in the car seat cover of Mr McConnell's ute belonged to Ms Dodd;

(2) to take that finding, and the firmly established fact that the appellant was driving the ute on North West Road on the day and at a time proximate to when Ms Dodd disappeared, into account in considering the questions of alibi and opportunity; and

(3) on the whole of the evidence, to be satisfied beyond reasonable doubt that:

(a) the appellant's alibi was disproved beyond reasonable doubt;

(b) the appellant had the opportunity to encounter Ms Dodd on North West Road; and

(c) the appellant unlawfully killed Ms Dodd with the requisite intention for murder or in circumstances sufficient to constitute murder.

1. I agree with Buss P, for the reasons that he gives, that there should be an order for a new trial.

1. For these reasons, I would make the following orders:
   1. Leave is granted on each ground.
   2. The appeal is upheld.
   3. The appellant's conviction is set aside.
   4. There be a new trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Wark [No 2] [2018] WASC 18.

[2] The State of Western Australia v Wark [2017] WASC 154.

[3] Her Honour's reference at [793] to 5 August 1999, as the date on which the police seized the car seat cover, was a mistake. It is apparent from other parts of her Honour's reasons that her Honour found that the relevant date was 6 August 1999. See, for example, [117], [457], [468] and [492].

[4] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250.

[5] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [56] (Gummow & Hayne JJ).

[6] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [17] - [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

[7] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [13] (French CJ, Bell, Keane & Nettle JJ).

[8] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 327 - 328.

[9] KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417, 424 (Brennan CJ, Toohey, Gaudron & Gummow JJ).

[10] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53] (French CJ, Crennan & Kiefel JJ).

[11] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523.

[12] Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

[13] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19] (Gummow & Hayne JJ).

[14] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595 [38] - [40], [48] (Kiefel, Bell & Keane JJ).

[15] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).

[16] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104.

[17] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 592.

[18] R v Kilbourne [1973] AC 729, 758.

[19] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46], [48] (Gummow, Hayne & Crennan JJ).

[20] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[21] Fennell v The Queen [2019] HCA 37 [82] (Kiefel CJ, Keane, Nettle, Gordon & Edelman JJ).

[22] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661 (O'Connor J).

[23] CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 [95] (McHugh, Gummow & Callinan JJ).

[24] Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 [7] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ).

[25] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 [2] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

[26] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

[27] Evans v The State of Western Australia [2011] WASCA 182.

[28] Morgan v The State of Western Australia [2011] WASCA 185.

[29] The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1.

[30] Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 440 (Latham CJ).

[32] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [50] (Kiefel CJ, Bell, Keane & Edelman JJ).

[33] OKS v The State of Western Australia [2019] HCA 10; (2019) 93 ALJR 438 [36] (Edelman J).

[34] Taylor v The Queen [2017] NSWCCA 2.

[35] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[36] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Beech J, Mazza JA relevantly agreeing). See also RMD [50] - [52] (Buss P); La Bianca v The State of Western Australia [2019] WASCA 105 [24] ‑ [26] (Buss P & Mazza JA), [144] (Mitchell JA).

[37] The State of Western Australia v Jackson [2019] WASCA 118 [20] - [23] (Buss P, Mitchell & Beech JJA).

[38] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.

[39] Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1.

[40] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.

[41] Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482.

[42] RH v The Queen [2014] NSWCCA 71; (2014) 241 A Crim R 1.

[43] R v PBB [2018] QCA 214.

[44] Onekawa v The State of Western Australia [2012] WASCA 105 [55(c)] (Buss JA; Martin CJ & Pullin JA agreeing).

[45] Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374.

[46] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300.

[47] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[48] R v Bauer [2018] HCA 40; (2018) 92 ALJR 846 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[49] DKA v The State of Western Australia [2017] WASCA 44 [33] - [34] (Buss P, Mazza JA & Beech J).

[50] McPhillamy [11]; Flessas v The State of Western Australia [2018] WASCA 210 [45] (Buss P, Mazza & Beech JJA); Lilley v The State of Western Australia [2019] WASCA 164 [62] (Buss P, Mazza & Beech JJA).

[51] McPhillamy [11]; Flessas [45]; Lilley [62].

[52] Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419 [33] (Martin CJ; Buss & Mazza JJA agreeing).

[54] R v Johnson (1961) 46 Cr App R 55, 57 (Ashworth J delivering the judgment of the Court of Criminal Appeal).

[55] R v Taylor [1968] NZLR 981, 985 ‑ 986 (Wild CJ delivering the judgment of the Court of Appeal of New Zealand).

[56] Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 569 - 570 (Gibbs CJ, Murphy & Aickin JJ).

[57] R v Small (1994) 33 NSWLR 575, 595 ‑ 596 (Hunt CJ at CL).

[58] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [21] (Brennan CJ, Gaudron & Gummow JJ).

[59] R v J (No 2) [1998] 3 VR 602, 629 - 632 (Winneke P & Charles JA).

[60] R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527, 559 - 560 (Hunt AJA, Buddin & Hoeben JJ).

[61] R v Merrett [2007] VSCA 1; (2007) 14 VR 392 [16] ‑ [17] (Maxwell P; Chernov JA & Habersberger AJA agreeing).

[62] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [31] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

[63] R v Yusuf [2005] VSCA 69; (2005) 11 VR 492 [19] (Winneke P; Charles and Chernov JJA agreeing).

[64] Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 [21] - [22] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).

[65] Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620, 627 - 638.

[66] Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 16 (Dixon CJ).

[67] Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 50 - 51, 55 (Mason, Wilson, Brennan & Dawson JJ), 59 - 60 (Deane J).

[68] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39] (McHugh J).

[69] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26] ‑ [28] (McLure JA; Steytler P & Wheeler JA agreeing).

[70] Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P; McLure & Pullin JJA agreeing).

[71] BSD v The State of Western Australia [No 2] [2009] WASCA 152 [36] (McLure JA; Buss & Miller JJA agreeing).

[72] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [177] ‑ [182] (Roberts‑Smith JA; Wheeler JA & Miller AJA agreeing).

[73] Santos v The State of Western Australia [No 2] [2013] WASCA 39.

[74] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[75] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

[76] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[77] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

[78] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[79] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[80] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

[81] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.

[82] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 433.

[83] Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 590.

[84] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520 (Dawson, Toohey & McHugh JJ).

[85] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51].

[86] Anderson v The Queen (1991) 53 A Crim R 421, 453.

[87] R v Wilkes [1948] HCA 22; (1948) 77 CLR 511.

[88] The State of Western Australia v Wark [No 2] [2018] WASC 18 (primary reasons).

[92] Primary reasons [84], [87], [89].

[93] Primary reasons [91], [93], [94].

[96] Primary reasons [113]. The drawing appears in attachment 2 to the primary reasons.

[97] Primary reasons [102], [121], [123], [124].

[107] Primary reasons [143]. See also primary reasons [144].

[108] Primary reasons [148] - [153].

[109] Primary reasons [144] - [148].

[112] Primary reasons [145] - [148].

[115] Primary reasons [160], [169].

[117] Primary reasons [163] - [166].

[119] Primary reasons [170] - [174], [178].

[123] Primary reasons [180], [232].

[125] Primary reasons [167], [194] - [210].

[127] Primary reasons [201] - [203].

[128] Primary reasons [207] - [211].

[129] Primary reasons [212] - [213].

[132] Primary reasons [219] - [220].

[135] Primary reasons [226] - [227].

[136] Primary reasons [230], [233].

[138] Primary reasons [229], [234].

[139] Primary reasons [230], [234].

[140] Primary reasons [230], [235].

[145] Primary reasons [28], [323], [324].

[147] Primary reasons [27], [329].

[154] Primary reasons [356] - [363].

[155] Primary reasons [365] - [367].

[157] ts 907 - 908; exhibit 132.1, 132.2.

[160] Primary reasons [371] - [380].

[162] Primary reasons [378] - [379].

[163] Primary reasons [386] - [406].

[165] See primary reasons [382] - [383].

[167] Primary reasons [408], [413].

[168] Primary reasons [414] - [432].

[170] Primary reasons [433] - [439].

[171] Primary reasons [441] ‑ [442].

[175] Primary reasons [469], [470].

[176] Primary reasons [471] - [475].

[177] Primary reasons [489] - [491].

[184] Primary reasons [595] - [597].

[185] Primary reasons [598], [606], [607]. One of the photographs is in attachment 2 of the primary reasons.

[186] Primary reasons [601] - [602].

[187] Primary reasons [610] - [756].

[189] Primary reasons [761] - [776].

[190] Primary reasons [777] - [782].

[197] Primary reasons [797] - [798].

[203] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [27]; see also AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47].

[204] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [11] ‑ [12]. This passage was recently applied by the New South Wales Court of Criminal Appeal in Quinn v The Queen [2018] NSWCCA 297 [128] ‑ [129].

[208] Filippou [86], referring to Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 326, 332.

[211] Appellant's supplementary submissions, 15 April 2019 [9] - [11]; respondent's submissions on the issue concerning errors of fact or reasoning, 23 April 2019 [1].

[212] Taylor v The Queen [2017] NSWCCA 2 [71] ‑ [73].

[213] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [48], [50], [54].

[214] Filippou [37], [55], [59], [60].

[218] Filippou [44] - [48], [54].

[221] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.

[222] Austic v The State of Western Australia [2010] WASCA 110 [2] ‑ [4]; see also [117] per Buss JA.

[223] DKA v The State of Western Australia [2019] WASCA 123.

[227] Shepherd (579); Williams v The State of Western Australia [2017] WASCA 206 [81].

[228] Respondent's submissions [6]; appeal ts 85 - 86, 90.

[229] Respondent's submissions [4]; appeal ts 87 - 88.

[231] Primary reasons [434] - [436].

[233] See MIB v JAP [2019] WASCA 175 [41] and the cases there cited at footnote 49.

[235] Subject, as regards the last sentence, to what I have said at [615] and [619] ‑ [620] above.

[237] Primary reasons [787], [793].

[240] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]; Ascic v Bedworth [2013] WASCA 174 [67]; The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 [374] - [375]; MIB v JAP [41].

[241] Appellant's submissions [49]; appeal ts 28, 45.

[243] Appellant's submissions [48] - [50]; appeal ts 36, 45.

[244] Appellant's submissions [50]; appeal ts 35 - 36.

[245] Appellant's submissions [39], [43] ‑ [44]; appeal ts 53 - 54.

[249] See primary reasons [235], and compare [230].

[250] See primary reasons [180], [231], [233], [237], [318].

[252] Primary reasons [238] - [239].

[254] Appellant's submissions [62]; appeal ts 13 - 14.

[255] Appellant's submissions [63] - [66]; appeal ts 15 - 19.

[256] Respondent's submissions [60] - [61].

[257] The passage of present relevance is at [438]; the judge deals with the propensity evidence at [761] - [782] of the primary reasons.

[260] While propensity evidence can be admitted and used to rebut potential or known lines of defence: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [177] ‑ [182], in my view, there is a distinction between that and diminishing the intrinsic weight to be attributed to an accused's statement to police. In my respectful view, Santos v The State of Western Australia [No 2] [2013] WASCA 39 is in the former category.

[262] Now see s 50 of the Evidence Act 1906 (WA).

[263] In the way that it might be thought that convictions for offences of perjury or of dishonesty do. See [672] above.

[264] Primary reasons [56] ‑ [61]; see [530] above.

[266] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18], [27]; Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12]; YBJ v The State of Western Australia [2019] WASCA 126 [113]; Kitto v The State of Western Australia [2019] WASCA 161 [71].

[267] Having regard to primary reasons [433] - [439], and [440] - [442].

[268] And its preceding paragraphs from [434].

[269] Respondent's submissions [104].

[270] For the reasons in [681] above, the position is different in relation to the error as it relates to [438] of the primary reasons. If the correct approach to miscarriage in an appeal from trial by judge alone mirrors the position for a jury trial, as to which see [679] above, no substantial miscarriage of justice arose from the error the subject of ground 3 as it relates to [438]. In this respect, I agree with Buss P at [468].

[271] Filippou [86], applying Simic (331 - 332).

[273] Kalbasi [12], referring to Weiss [35]. Compare Kalbasi [62] ‑ [64] (Gageler J), [158] (Edelman J); Lane [55], [56] (Gageler J); Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517 [41] (Edelman J).

[274] Kalbasi [12]; Nuhana v The State of Western Australia [2018] WASCA 79 [80](2).

[276] Weiss [43]; Kalbasi [14]; Nuhana [82].

[277] Weiss [44]; Kalbasi [12], [13]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [29]; Lane [38]; OKS v The State of Western Australia [2019] HCA 10; (2019) 93 ALJR 438 [31].

[278] Kalbasi [13]; Nuhana [80](3).

[279] AK [55]; Kalbasi [15]; Nuhana [80](4). See also Lane [46].

[280] Kalbasi [15]; Nuhana [80](4).

[281] Weiss [41]; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [29]; Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 [68]; Kalbasi [15]; OKS [31].

[283] Castle [65] ‑ [68]; Collins [36]; OKS [29], [31]; Hofer v The Queen [2019] NSWCCA 244 [57].

[285] Weiss [45], [46]; Kalbasi [16]; Lane [46].

[287] See, by analogy, Dodd & Dodd Pty Ltd v Shire of Mundaring [2011] WASCA 37; (2011) 213 A Crim R 92 [30], [32].

[288] See, by analogy with a case of trial by jury, Weiss [50] and, by analogy with an appeal from a decision of a magistrate, Gelavis v Australian Securities and Investments Commission [2003] WASCA 300 [24], [29].