MATTHEW DONALD TILLEY v THE KING [2023] SASCA 80

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE PEEK) SCCRM-20-344 Appellant: MATTHEW DONALD TILLEY Counsel: MRS M SHAW KC WITH MR W MICKAN - Solicitor: CALDICOTT & ISAACS LAWYERS Respondent: THE KING Counsel: MS C MATTEO SC WITH MS Z SMITH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 05/09/2022, 06/09/2022 File No/s: SCCRM-22-3 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TILLEY v THE KING [2023] SASCA 80 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Buss) 3 August 2023 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - ADMISSIBILITY GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE CRIMINAL LAW - PROCEDURE - SUMMING UP This is an appeal against conviction. Following a trial, Matthew Donald Tilley, the appellant, was found guilty of the murder of Mrs Suzanne Poll on 29 April 1993. The appellant was not arrested and charged with the offence until 21 September 2019. The trial commenced in November 2021. The prosecution alleged that the appellant attended the Sands and McDougall newsagency located at Parabanks Shopping Complex in Salisbury (‘the newsagency’) on the evening of 29 April 1993 and stabbed Mrs Poll to death in the rear office of the store. There was no apparent motive for the offence. -- 1 of 90 -- There was no dispute that the offender stabbed Mrs Poll multiple times with the requisite intention to commit murder. The central issue in dispute at trial was identity. The prosecution case was wholly circumstantial and based primarily on DNA evidence which supported the proposition that the appellant was a contributor to multiple blood stains located at the crime scene. The prosecution alleged that in the course of the attack the appellant sustained a free-bleeding injury which caused him to deposit blood at various locations between the rear office of the newsagency (where Mrs Poll's body was found) and the sole point of entry/exit to the store. The appellant did not give or call any evidence at the trial. Defence counsel challenged the accuracy and reliability of the DNA evidence; and contended that evidence adduced as part of the prosecution case raised a reasonable doubt as to whether the prosecution had proved the appellant was the offender. The appellant now appeals against the conviction on the following, consolidated, grounds: 1. The trial Judge erred as a matter of law in his directions to the jury in relation to the absence of motive, inter alia, in that his Honour erroneously directed the jury that the prosecution did not have to prove motive because, in a case such as the present, ‘they would not know what it was themselves’ and ‘that it was a responsible position to take’. 2. The trial Judge erred in his directions to the jury as to the forensic evidence by failing to direct the jury that before they could rely on the forensic results, they must be satisfied beyond reasonable doubt that: the chain of evidence was established; and the risk of contamination was excluded. 2A. The trial Judge erred as a matter of law in admitting the evidence of the DNA results. 2A.1 The trial Judge erred in failing to provide any, or adequate, reasons for his ruling that the DNA evidence was admissible and/or, alternatively, in declining to exclude the evidence in the exercise of his discretion. 2A.2 The trial Judge erred in failing to find that the DNA evidence implicating the appellant was obtained in breach of the provisions of the Criminal Law (Forensic Procedures) Act 2007 (SA) (‘the CLFPA’). Alternatively, the trial Judge ought to have excluded the DNA results in the exercise of his discretion as a result of the alleged breaches of the CLFPA and in the purported absence of authority to conduct familial searching, together with the unlawful and/or unfair circumstances in which police obtained the appellant’s DNA sample. 2A.3 The trial Judge erred in failing to find that the methodology and circumstances relating to obtaining the appellant’s DNA sample were unlawful, unfair and/or not authorised by the CLFPA. Alternatively, the trial Judge ought to have exercised his discretion to exclude the DNA evidence as a result of the unlawful conduct and/or unfairness arising from the circumstances in which police obtained the sample of the appellant’s DNA. 2A.4 In relation to the alleged crime scene samples, the prosecution could not establish beyond reasonable doubt proof of the chain of evidence nor exclude the risk of contamination. 3. The trial Judge erred in his directions as to the evidence of M. 3.1. The trial Judge erred by failing to direct the jury as to the exculpatory use they could make of the evidence if they found that the appellant's statements were referable to Mrs Poll and true. 3.2. The trial Judge erred by failing to direct the jury that they must find proved beyond reasonable doubt that the appellant's statements were referable to the deceased before they could use them as evidence of lies. -- 2 of 90 -- 3.3. The trial Judge’s directions were flawed in so far as they constituted a lies direction. 3.4. The trial Judge erred by failing to adequately present the defence case in relation to such statements. 3A. The trial Judge erred as a matter of law in admitting the evidence of M for the purposes contended by the prosecution. Alternatively, the trial Judge erred by failing to exclude the evidence of M in the exercise of his discretion. 4. The trial Judge erred in his directions as to the burden and standard of proof, and in failing to adequately and fairly present the defence case. 4.1. The trial Judge erred by failing to adequately direct the jury that the prosecution must exclude the reasonable possibility that the appellant did not kill the deceased. 4.2. The trial Judge erred by failing to adequately put the defence case as to the forensic evidence and M’s evidence, and interspersed his presentation of the defence address with rebuttal comments. 4A. The fair trial of the appellant miscarried as a result of the unbalanced summing up of the trial Judge. 5. The trial Judge erred by directing the jury that the evidence of Ms Deborah Parsons and the evidence of Dr Sara Jones (the shoe print evidence) was ‘consistent with’, and confirmatory of, the prosecution case. 6. The fair trial of the appellant miscarried as a result of the admission of the evidence of Dr Ross James that it was possible that the offender had suffered a cut during the attack causing a free-bleeding injury, and of Sergeant David Veldhoen as to a free-bleeding injury being responsible for various blood deposits located at the crime scene. Permission to appeal on Grounds 2, 3.1, 3.4 and 4 was granted and the question of permission in relation to the balance of the remaining grounds was referred to this Court for consideration. Held, per the Court, granting permission to appeal on Grounds 3.2, 3.3, 3A and 4A but refusing permission to appeal on the remaining Grounds and dismissing the appeal: 1. The trial Judge’s directions as to motive were not inadequate. His Honour made clear that motive, or the absence of motive, for the appellant to commit the offence was a factor the jury could take into account when determining whether the prosecution had proved the appellant’s guilt beyond reasonable doubt. 2. The trial Judge did not err in admitting the blood and DNA deposition evidence, nor were his directions in relation to that evidence inadequate such that there was a miscarriage of justice. His Honour expressly linked the requirement for the prosecution to prove the blood and DNA deposition evidence beyond reasonable doubt to an acceptance of the accuracy and reliability of the evidence, which was directly informed by reference to proof of the chain of evidence and the exclusion of the risk of contamination of the crime scene samples. 3. Notwithstanding the express strictures within the CLFPA as to what will constitute an impermissible use of the database, a plain reading of the Act permits the scientific processes which were conducted in this case; they were not unlawful. 4. The CLFPA regulates the performance of forensic procedures on a person’s body but does not go so far as to codify the manner in which police are required to obtain all forensic samples, nor does it apply to a forensic procedure authorised under another law of this State or a search of a person. In this case, the provisions of the CLFPA were not engaged by the police conduct in seizing the appellant’s discarded coffee cup. This conduct did not constitute a ‘forensic procedure’ for the purposes of the CLFPA in that it did not involve taking a sample, or other material, from a person’s body. Accordingly, the mechanism by which police obtained the -- 3 of 90 -- appellant’s DNA profile was not unlawful or improper such as to give rise to the Bunning v Cross discretion. 5. There was sufficient evidence before the jury capable of establishing beyond reasonable doubt both the chain of evidence and excluding the risk of contamination. In any event, the issue of whether those matters were proven beyond reasonable doubt was a question of weight rather than admissibility. 6. The evidence of M was admissible, and the trial Judge did not err in declining to exclude it in the exercise of his discretion. 7. There was no miscarriage of justice occasioned by the trial Judge’s directions on lies. 8. In summing up, the trial Judge outlined the standard and burden of proof in orthodox terms. Those matters were reiterated when his Honour came to discuss the elements of the offence of murder and when instructing the jury on circumstantial evidence. The trial Judge did not err in his directions as to the burden and standard of proof. 9. When considered in its entirety, the trial Judge’s summing up was not unbalanced and his Honour’s remarks were not apt to create a substantial risk that the jury might actually be persuaded of the appellant’s guilt. Nor did his Honour fail to adequately and fairly present the defence case. 10. The evidence of Ms Parsons and Dr Jones were minor strands of the circumstantial case against the appellant. The trial Judge’s directions in relation to those bodies of evidence did not elevate the evidence beyond what it could properly establish as part of the prosecution case and were not erroneous; there was no risk that the jury would approach that evidence as directly implicating the appellant. 11. The authority of R v B and D (1993) 66 A Crim R 192 does not stand for the proposition that it is improper or misleading for a trial Judge to use the terms ‘consistent with’ in relation to strands of circumstantial evidence which, of themselves, do not necessarily implicate the accused. 12. The evidence of Dr James was not speculative, nor extend beyond his specialised knowledge or field of expertise. The evidence was not inadmissible. 13. The evidence of Sergeant Veldhoen was within his established expertise as to blood pattern analysis and was admissible as expert evidence. Criminal Law (Forensic Procedures) Act 2007 (SA) ss 3, 4, 40, 41(1), 45(2), 45(2)(a), 45(3)(a), 47, 50, 50(1), 50(1)(a), referred to. McKell v The Queen (2019) 264 CLR 307, applied. Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; R v B and D (1993) 66 A Crim R 192, distinguished. De Gruchy v The Queen (2002) 211 CLR 85; Dhanhoa v The Queen (2003) 217 CLR 1; Madubuko v The Queen (2011) 210 A Crim R 249 ; Nasaris v The Queen [2021] SASCA 143; Pyliotis v The Queen [2020] VSCA 134; R v Berry (2007) 176 A Crim R 195; R v Dastagir (2013) 118 SASR 83; R v Emes [2019] SASCFC 75; R v Golubovic [2016] SASCFC 144; R v Smith (1998) 71 SASR 543; Straker v The Queen (1977) 15 ALR 103; Velevski v The Queen (2002) 187 ALR 233; Volpe v The Queen [2020] VSCA 268; Webb v The Queen (1994) 13 WAR 257, discussed. Bunning v Cross (1978) 141 CLR 54; Edwards v The Queen (1993) 178 CLR 193; R v Bonython (1984) 38 SASR 45; R v Christie [1914] AC 545; R v IAS (2004) 89 SASR 159; R v Karger (2002) 83 SASR 134; R v Tomazos NSWCCA 6 August 1971; R v Singh [2019] SASCFC 51; Roberts v The Queen (2022) 365 FLR 367; Shepherd v The Queen (1990) 170 CLR 573; Zoneff v The Queen (2000) 200 CLR 234, considered. -- 4 of 90 -- TILLEY v THE KING [2023] SASCA 80 Court of Appeal – Criminal: Livesey P, David JA and Buss AJA 1 THE COURT: After a trial before a jury, the appellant, Matthew Tilley, was found guilty of the offence of murder. He was alleged to have murdered Mrs Suzanne Poll (‘Mrs Poll’) by stabbing her to death on 29 April 1993, when he was 21 years old. The appellant was not arrested and charged with the offence until 21 September 2019. The trial commenced in November 2021. 2 The prosecution alleged that the appellant attended a newsagency store, Sands and McDougall, located at the Parabanks Shopping Complex in Salisbury (‘the newsagency’), where Mrs Poll worked as a shop assistant. At around 9:00pm on 29 April 1993, shortly before closing time, the appellant allegedly violently attacked Mrs Poll in the rear office of the store, stabbing her to death with a knife. Mrs Poll’s cause of death was ultimately attributed to rapid blood loss caused by multiple stab wounds. There was no apparent motive for the offence. 3 The central issue at trial was identity. The prosecution case was wholly circumstantial and based primarily on DNA results extracted from multiple samples of blood-like stains located at the newsagency. The prosecution alleged that the offender sustained a free-bleeding injury during the attack and, consequently, deposited blood at various locations between the rear office, where Mrs Poll’s body was found, and the sole point of entry to, or exit from the store. Forensic evidence supported the proposition that the appellant was a contributor to blood- like samples taken from Mrs Poll’s cardigan, her right shoe, a plastic cup holding receipts, a State Bank envelope, and a Commonwealth Bank envelope. 4 The appellant did not give or call any evidence at trial. Defence counsel challenged the accuracy and reliability of the DNA evidence on two bases: first, that the chain of evidence relating to the blood samples was incomplete; and second, that the risk of contamination of the blood samples could not be excluded beyond reasonable doubt. It was submitted that the DNA results could not be relied on due to the imperfections in police crime scene examination processes, evidence collection techniques, exhibit recording, and the possibility of errors in forensic laboratory processes and record keeping. 5 At trial, defence counsel contended that there was evidence adduced as part of the prosecution case which raised a reasonable doubt as to whether the prosecution had proved the appellant was the offender. That evidence included: • fingerprints on Mrs Poll’s handbag (which appeared to have been rifled through) which did not match the appellant’s fingerprints; • DNA evidence that the appellant was not a contributor to samples taken from beneath Mrs Poll’s fingernails; -- 5 of 90 -- [2023] SASCA 80 The Court 2 • witness’ evidence of other males observed in, or near, the newsagency at the relevant time who had an appearance inconsistent with the appellant’s appearance; • the lack of injuries or cuts observed on the appellant (inconsistent with the prosecution case that he had sustained a free-bleeding injury during the alleged attack); • the significant forensic disadvantage occasioned to the appellant by reason of the passage of time which precluded his ability to access work records which may otherwise have given him an alibi; and • the absence of any known motive. 6 In recorded telephone calls, the appellant denied having committed the murder and said that he was not there when Mrs Poll was killed, nor did he have any knowledge of who committed the murder. 7 There was no contest as to the cause of death. Nor was it in dispute that the offender stabbed Mrs Poll multiple times with the requisite intention to commit murder. The contested issue at trial was whether the prosecution had proved the appellant was the offender; in other words, the identity of the offender. 8 The appellant now appeals against his conviction on the following (consolidated) grounds: 1. The trial Judge erred as a matter of law in his directions to the jury in relation to the absence of motive, inter alia, in that his Honour directed the jury that the prosecution did not have to prove motive because, in a case such as the present, ‘they would not know what it was themselves’ and ‘that it was a responsible position to take’. 2. The trial Judge erred in his directions to the jury as to the forensic evidence by failing to direct the jury that, before they could rely on the forensic results, they must be satisfied that the chain of evidence was established beyond reasonable doubt; and the risk of contamination was excluded beyond reasonable doubt. 2A. The trial Judge erred as a matter of law in admitting the evidence of the DNA results. Particulars 2A.1 The trial Judge erred in failing to provide any, or adequate, reasons for his ruling that the DNA evidence was admissible and/or, alternatively, in declining to exclude the evidence in the exercise of his discretion; -- 6 of 90 -- [2023] SASCA 80 The Court 3 2A.2 The trial Judge erred in failing to find that the DNA evidence implicating the appellant was obtained in breach of the provisions of the Criminal Law (Forensic Procedures) Act 2007 (SA) (‘the ‘CLFPA’) and, in particular, that the use of ‘familial searching’ was authorised by the CLFPA. Alternatively, the trial Judge ought to have excluded the DNA results in the exercise of his discretion as a result of the breaches of the CLFPA and the absence of authority to conduct familial testing, together with the unlawful and/or unfair circumstances in which police obtained a sample of the appellant’s DNA. 2A.3 The trial Judge erred in failing to find that the methodology and circumstances relating to obtaining a sample of the appellant’s DNA were unlawful, unfair and/or not authorised by the CLFPA. Alternatively, the trial Judge ought to have exercised his discretion to exclude the DNA evidence as a result of the unlawful conduct and/or unfairness arising from the circumstances in which police obtained the sample of the appellant’s DNA. 2A.4 In relation to the alleged crime scene samples, the prosecution could not establish the chain of evidence nor exclude the risk of contamination, beyond reasonable doubt. 3. The trial Judge erred in his directions as to the evidence of M. Particulars 3.1 The trial Judge erred by failing to direct the jury as to the exculpatory use they could make of the evidence if they found that the statements referred to Mrs Poll and were true. 3.2 The trial Judge erred by failing to direct the jury as to the need to make a finding beyond reasonable doubt that they were referable to Mrs Poll before they could use them as evidence of lies. 3.3 The trial Judge’s directions were flawed in so far as they constituted a lies direction. 3.4 The trial Judge erred by failing to adequately present the defence case in relation to such statements. 3A. The trial Judge erred as a matter of law in admitting the evidence of M for the purposes contended by the prosecution. Alternatively, the trial Judge erred by failing to exclude the evidence of M in the exercise of his discretion. -- 7 of 90 -- [2023] SASCA 80 The Court 4 4. The trial Judge erred in his directions as to the burden and standard of proof, and in failing to adequately and fairly present the defence case. Particulars 4.1 The trial Judge erred by failing to adequately direct the jury that the prosecution must exclude the reasonable possibility that the appellant did not kill Mrs Poll. 4.2 The trial Judge erred by failing to adequately put the defence case as to the forensic evidence and M’s evidence and interspersed the presentation of the summary of the defence address with rebuttal comments. 4A. The fair trial of the appellant miscarried as a result of the unbalanced summing up of the trial Judge. 5. The trial Judge erred by directing the jury that the evidence of Ms Deborah Parsons, and the shoe print evidence, was consistent with, and confirmatory of, the prosecution case. 6. The fair trial of the appellant miscarried as a result of the admission of the evidence of Dr Ross James that it was possible that the offender had suffered a cut during the attack causing a free-bleeding injury, and of Sergeant David Veldhoen as to a free-bleeding injury being responsible for various blood deposits located at the crime scene. 9 Permission to appeal on Grounds 2, 3.1, 3.4 and 4 was granted and the question of permission to appeal on the balance of the remaining grounds was referred to this Court for consideration. Overview of the evidence 10 The prosecution case was that Mrs Poll had been stabbed to death at about 9:00pm on Thursday, 29 April 1993, while she was working alone in the newsagency. There were no eyewitnesses to the stabbing. The weapon used in the attack was never recovered by police. At the time of the discovery of Mrs Poll’s body, the store cash register draw was open and almost empty, and Mrs Poll’s handbag had the appearance of having been rifled through, thus raising the possibility that her death was connected to a robbery. 11 Mrs Poll was last seen alive at about 8:55pm by witnesses Lisa Watts (a co-worker) and Ms Watts’ husband, Anthony Watts. Mrs Poll’s body was found at about 10:00pm by her husband, Darryl Poll, who attended at the store after she failed to return home by the expected time. Thus, the prosecution placed the timing of her death at between 8:55pm and 10:00pm. 12 Mrs Poll had been stabbed to death in a small staff-only office area located at the rear of the store behind the main service counter. Her body was found lying -- 8 of 90 -- [2023] SASCA 80 The Court 5 face-up on the floor and her handbag was nearby. The office door appeared to have been recently damaged as a result of the bottom part being pulled away from its frame with considerable force. 13 There was no dispute that the cause of death was haemorrhaging due to 18 stab wounds to the back, six of which penetrated so deeply that they exited through the front of Mrs Poll’s chest cavity and abdomen. There were also incised wounds to both hands, areas of the back, and the left side of her scalp, consistent with defensive wounds. Based upon the physical characteristics of the stab wounds, a forensic pathologist, Dr Ross James, concluded that a strong-bladed knife at least 22cm long had been used to inflict the wounds. 14 By reason of the nature and severity of the knife attack, ‘the large spillage of blood at the crime scene’, and the likely size and sharpness of the knife used in the attack; the prosecution alleged that the offender had sustained a free-bleeding injury whilst stabbing Mrs Poll. 15 There was a pool of blood on the floor under, and around, the body of Mrs Poll which, if trodden in, could have accounted for the presence of shoe impressions in the rear office and main shop area leading to the single point of entry to, and exit from the shop. The shoes worn by the first police officer on the scene, Mr Poll, and the only ambulance officer to go into the office area, were provided to forensic examiners and were accounted for amongst the shoe marks, thus leaving a number of unidentified shoe marks at points located between Mrs Poll’s body and the shop door. The shoe prints appeared to follow a path from the inside of the office to the shop door consistent with the departure route of the injured, free-bleeding offender after the attack. At the time of his arrest in September 2019, a men’s size nine shoe was the optimum fit for the appellant. The unaccounted shoe impressions were within that same size range. 16 The prosecution case was that the DNA evidence supported a conclusion that the appellant had deposited his blood (from a free-bleeding injury sustained during the attack on Mrs Poll) at various locations in the shop including: where Mrs Poll was stabbed in the rear office; on her handbag (which appeared to have been rifled through); around the shop in a general pathway leading from the rear office through the entry/exit door; and on and around the entry/exit door. 17 The samples which the prosecution relied upon as providing evidence of the appellant’s blood at the crime scene were as follows: Exit door samples (a) Stain on the lintel (SAM1): There was a stain on the lintel which appeared to be a ‘drip stain’, that being a stain caused by blood falling under gravity at approximately 90 degrees and striking the surface below. In 1993, the stain gave a presumptive positive result for blood. A sample from the stain gave a -- 9 of 90 -- [2023] SASCA 80 The Court 6 single source DNA profile with a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the sample than if he was not. (b) Stain on floormat inside the entrance of the store (SAM2): There were three spots of blood on the vinyl floor mat inside the sole point of entry/exit to the store which had the appearance of drip stains. In 1993, the stain gave a presumptive positive result for blood. A sample from the stains gave a single source DNA profile with a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the sample than if he was not. (c) The interior door handle (GDB1.1): There was an apparent run of blood on the interior door handle which consisted of a transfer stain – that is, a stain caused by a bloodied object having come into contact with the door handle thus transferring a volume of blood onto it – which then ran down the handle under the force of gravity and caused a flow pattern. In 1993, the stain gave a presumptive positive result for blood. The sample gave a mixed DNA profile from two contributors with a calculated likelihood of 22 billion in favour of obtaining the profile if the appellant was a contributor to the sample rather than if he was not. Office samples (d) The damaged office door (SAM13): There was a stain on the damaged office door which appeared to be a drip stain in that it had dropped onto the horizontal surface of the door and created a downward flow pattern under the force of gravity before something wiped across it from the inside of the office to the outside. In 1993, the stain gave a presumptive positive result for blood. The sample gave a mixed DNA profile from two contributors with a calculated likelihood of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the sample rather than if he was not. (e) Mrs Poll’s cardigan (SAM15.B): There was a stain detected on the front lower right sleeve of Mrs Poll’s cardigan which was located on the rear office floor. A cutting was taken from the stain which gave a mixed DNA profile from two contributors. There was a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor to the profile than -- 10 of 90 -- [2023] SASCA 80 The Court 7 if he was not, and a likelihood ratio of 880,000 in favour of the inclusion of Mrs Poll. (f) Mrs Poll’s right shoe (SAM16.A): There was a swab taken from the outer aspect of the sole of Mrs Poll’s right shoe which was loose on the rear office floor. It gave a mixed DNA profile from two contributors with a calculated likelihood of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor than if he was not. Statistical weightings were calculated in favour of the exclusion of Mrs Poll and Mr Poll as contributors to the mixture. Handbag samples (g) Commonwealth Bank envelope (JPH1.3.A): There was apparent blood-like smearing on the front of a Commonwealth Bank envelope. The smearing gave a mixed DNA profile from two contributors for which there was a likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor than if he was not; and a likelihood ratio of 2,300 in favour of the inclusion of Mrs Poll. (h) State Bank envelope (JPH1.4.A): There was apparent blood-like smearing on the edges of paper inside a State Bank envelope which gave a presumptive positive result for blood. This gave a mixed DNA profile from two contributors for which there was a likelihood ratio of 40 billion in favour of obtaining the profile if the appellant was a contributor than if he was not; and 680 in favour of the inclusion of Mrs Poll. (i) Plastic holder (JPH1.6.A): There was a stain approximately 20mm x 5mm in size located in the corner of a plastic holder containing receipts and paperwork which gave a presumptive positive result for blood. In 1993, the stain gave a single source DNA profile with a calculated likelihood ratio of greater than 100 billion in favour of obtaining the profile if the appellant was a contributor than if he was not. 18 Sergeant David Veldhoen, a blood stain pattern analyst, gave evidence that the entry/exit door samples could have been made by a person with a free-bleeding injury grabbing hold of the door handle, the pressure of which would cause blood to expel from the hand, thereby creating the flow pattern (GDB1.1), and when releasing that hold, causing individual blood drops to form and strike the ground (SAM1, SAM2). -- 11 of 90 -- [2023] SASCA 80 The Court 8 19 On the prosecution case, the DNA results supported a conclusion that the appellant’s blood had been deposited at various positions in the newsagency during the course of, and in connection with, his attack on Mrs Poll. The crime scene evidence, blood pattern analysis, and DNA results (referred to by the trial Judge compendiously as the ‘blood and DNA deposition evidence’) were the primary pieces of circumstantial evidence against the appellant. 20 It was common ground between the parties that proof of the accuracy and reliability of the blood and DNA deposition evidence was an ‘indispensable link’ in proof of the offence and therefore needed to be proved beyond reasonable doubt. Other circumstantial evidence 21 In addition to the blood and DNA deposition evidence, the prosecution relied on other pieces of circumstantial evidence to support their case that the appellant was the offender. Appellant’s mother lived in the area 22 The appellant made a number of formal admissions at the trial pursuant to s 34 of the Evidence Act 1929 (SA). The admissions included that: (a) in April 1993, the appellant's mother, Ms Mary Richardson, resided at a house at Lawrie Avenue, Salisbury; (b) on 26 October 1992, the appellant reported the theft of his backpack to police and stated that his home address was his mother's house at Lawrie Avenue, Salisbury; and (c) Department of Infrastructure and Transport records showed that on 26 May 1993 the appellant reported that his residential address was his mother's house at Lawrie Avenue, Salisbury. 23 From those admitted facts, the prosecution alleged that in 1993 the appellant’s mother lived in a house at Lawrie Avenue in Salisbury, which was on the opposite side of the Salisbury railway line to the Parabanks Shopping Centre. The appellant lived with her, at this address, until sometime just before June 1993. Ms Richardson gave evidence that after moving out, the appellant continued to visit her at her home at least once a fortnight. In recorded telephone calls from prison made after his arrest, the appellant confirmed to family members that he had been into the newsagency but denied that he was present at the time of the attack on Mrs Poll. Evidence of Ms Deborah Parsons – male of a similar description 24 According to Ms Richardson, at the time the appellant lived with her at Lawrie Avenue, and visited her there in 1993, he had dark hair and ‘prominent’ dark eyebrows. -- 12 of 90 -- [2023] SASCA 80 The Court 9 25 Sometime between about 9:10pm and 9:15pm on the evening of the murder, a witness, Ms Parsons, saw a young man with dark hair and thick, dark eyebrows, with his hands inside the pockets of a long coat, walking purposefully through a car park located between the newsagency and the Salisbury railway line. The male was heading from the general direction of the crime scene to the direction of the home of the appellant’s mother. Ms Parsons said that as her vehicle approached the young man, he spun around to face her, adopting an aggressive and defensive semi-crouched stance; and it appeared he had been sweating. 26 The prosecution relied on the evidence of Ms Parsons as a piece of circumstantial evidence as to identity; that is, a young man fitting the general physical appearance of the appellant was seen in the area of the shop heading towards the home of the appellant’s mother shortly after the commission of the offence. Shoe impressions 27 Following his arrest in September 2019, the appellant’s known shoe size was a men’s size nine, which was within the same size range as the shoe impressions of unknown origin located at the crime scene. Appellant’s conversations with M 28 In July 2019, prior to the appellant’s arrest, and at a time when he could not have known he was a person of interest in connection with Mrs Poll’s murder, the appellant had a conversation with his then intimate partner, M, in Warrnambool (‘the Warrnambool conversation’). It was M’s evidence that the appellant told her that when he was younger he had an affair with an older married woman who worked in a shop that he used to go into and that this woman had been knifed to death by her husband. 29 On the prosecution case, it was open to the jury to conclude that the appellant was talking about Mrs Poll and thereby asserting a ‘connection’ to her. On the defence case, the appellant was discussing a different woman in different terms. This conversation is the subject of Appeal Grounds 3 and 3A. 30 With that overview of the evidence and the issues in dispute at trial, we turn to consider the appeal grounds. Ground 1 – Directions as to motive 31 The appellant complains that the trial Judge erred as a matter of law in his directions to the jury regarding the absence of motive. The evidence at trial revealed no motive for the appellant to commit the offence. While there was some evidence suggestive of a robbery, it was not relied upon by the prosecution in proof of the appellant’s guilt. 32 Both the prosecutor and defence counsel addressed the jury as to the absence of motive. The prosecutor emphasised that while there was no evidence of a -- 13 of 90 -- [2023] SASCA 80 The Court 10 motive for the appellant to attack Mrs Poll, that did not detract from the incriminatory evidence against him. The prosecutor submitted that even without an apparent motive, there was no reasonable view of the blood and DNA deposition evidence consistent with innocence. The prosecutor urged the jury to delineate between a lack of motive and a lack of involvement in the crime and said: The weight of the evidence reveals Suzanne Poll was happily married, supported by her family, and committed to her job. The point is not to say she could not possibly have had any enemies but rather to highlight the absence of anyone having an obvious motive to harm her. That is just another way of making the point that the absence of motive is not the be-all and end-all of determining a charge of murder because sometimes there is just no explicable reason for why things happen as they do. 33 Defence counsel also addressed the jury on the absence of motive and said that while motive was not an element of the offence, the jury ‘might still think that in a case like this [motive] is important’. Defence counsel said: Now, robbery has been mentioned. Would you kill like that and not get the money? These are really ruminations or questions, rhetorical questions I’m posing. I don’t pretend, on the evidence, to be able to assist you about the motive here. 34 … So, what to make of motive. You might think you’re not assisted very much by the evidence in this case about what the motive was. It has been described as a ferocious attack, and you might agree. One thing which hasn’t been addressed is that we know from Dr James that Mrs Poll met her death lying face down because she received those stab wounds in the back and the exit wounds came out the front. But Darryl Poll describes arriving and he doesn’t describe turning her over, for example. So, has someone committed this ferocious attack and then turned her over? Is that the act of someone who knows her well? What does that tell you if anything? 35 It can be seen that both parties addressed the jury on the topic of motive, and the absence of the appellant having had a motive to murder Mrs Poll. On the one hand, the prosecutor contended that the absence of motive did little to undermine the strength of the prosecution case; while on the other, defence counsel emphasised that the appellant had no motive to have committed an offence characterised by its brutality suggestive of animosity between the offender and Mrs Poll. 36 The trial Judge instructed the jury that it was not for the prosecution to prove that the appellant had a motive to commit the offence; but the presence or absence of motive was a relevant matter for the jury to consider when assessing whether guilt had been established. The trial Judge instructed the jury not to speculate as to possible motives on the part of the appellant and cautioned the jury against ‘bootstrap reasoning.’ His Honour also noted that there is a distinction between the absence of proven or apparent motive, on the one hand, and proven absence of -- 14 of 90 -- [2023] SASCA 80 The Court 11 motive, on the other. His Honour instructed the jury that this was a case involving the former: It is not for the prosecution to say why a person did kill a deceased person if it can be satisfactorily proved beyond reasonable doubt that he did do that killing and that you are prepared to infer from the circumstances I have taken you to before that it was not an accident and that it had the intention of killing or causing at least grievous bodily harm. We have been through that. Of course, as I said at the outset, it is only human and reasonable to ask oneself ‘The accused is charged with murder, why would he do that? What is his motive?’, so you may look at the presence or absence of motive as a relevant matter when deciding whether the prosecution have indeed proven that the accused did commit the crime of murder but, as I have told you already, the prosecution do not have to prove, do not have to explain what the motive was because they would not know what it was themselves in a case like we have got here. The next thing is that in a case such as this where the evidence does not clearly establish a definite motive for the accused to kill the deceased one must not adopt a process of, or akin to, speculating upon what motive he may have had and then using such possibility as a factor to be taken into account in assessing whether guilt has been established. You can understand that is bootstraps reasoning, you know what that is: you cannot lift yourself up by your own bootstraps. It is sort of assuming that the person is guilty and asking why did he do it and then taking that speculation as to why he did it back to the original question of whether or not he did it. I will leave that with you, that is perhaps not the easiest thing I have discussed today, but it is not unimportant. As I say, you can look at the situation of motive, you can take it into account with all of the rest of the facts before you when coming to that final decision as to whether or not it has been proven beyond reasonable doubt that the accused did commit murder. I will put it in another way, which may or may not help you. It is another way of expressing what I have already put, so do not be worried about it because I am not suddenly putting something different or new. But in a number of cases, and in a decision of the High Court in De Gruchy v The Queen, the judges have explained that although an absence of evidence of possible motive is clearly a matter to be taken into account by the jury (as I have said to you that it is, particularly in a case based on circumstantial evidence, as this case is) there is a critical distinction between two things: between the absence of proven or apparent motive on the one hand and proven absence of motive on the other. In other words, these are my words now, you have got to remember that you can have an absence of evidence of motive in a particular case, in other words prosecution tender their evidence, what they have got and there is an absence of evidence of motive there, so there is that. But that does not equate to proof that the accused could not have had some unknown motive or reason to commit the charged crime. In other words, a person may have a reason that seems good to him, however logical or illogical, but which is never revealed and he commits a crime. Prosecution cannot stand up and say ‘Here is our evidence, here is all the circumstantial evidence that he committed a crime and here is our evidence as to why he did it’, but the fact that they do not lead evidence as to why he did it, or cannot do so, does not amount to proof that there was no motive because you simply do not know in a circumstance like that. You have to keep those situations apart. -- 15 of 90 -- [2023] SASCA 80 The Court 12 (emphasis added) 37 Later, in summarising the prosecution case, his Honour said: Next, the prosecutor referred to the fact that the deceased had no known enemies and, clearly, Mr Poll was not the killer. You can entirely discount him as the police have. There can be no suggestion that he was. So, the prosecutor says ‘Well, the motive is unclear, we do not know.’ Well, that is a responsible position to take and I have already directed you about the matter of motive and the prosecution do not have to prove a motive in circumstances where they simply cannot say, so I leave that with you. (emphasis added) 38 The appellant contends that the trial Judge erred in his directions on motive. First, the appellant submits that the trial Judge, in referring to the prosecution’s stance in relation to motive as ‘a responsible position to take’, diluted the importance of the absence of motive to the defence case. Second, the appellant contends that the trial Judge erred by directing the jury that the prosecution do not have to prove a motive because ‘they would not know what it was themselves in a case like we have got here.’ The appellant complains that the inadequacy of the directions as to the absence of motive has resulted in a miscarriage of justice. 39 In De Gruchy v The Queen,1 Gaudron, McHugh and Hayne JJ drew a distinction between an absence of apparent motive, on the one hand, and proven absence of motive, on the other:2 The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of “positive significance”, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive. 40 Relevantly, in a separate judgment, Kirby J set out some general propositions relevant to directions on motive and, in particular, the absence of motive. His Honour said:3 (1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole. (2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and 1 (2002) 211 CLR 85. 2 De Gruchy v The Queen (2002) 211 CLR 85 at [30] per Gaudron, McHugh and Hayne JJ. 3 De Gruchy v The Queen (2002) 211 CLR 85 at [57] per Kirby J. -- 16 of 90 -- [2023] SASCA 80 The Court 13 that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation. … (5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is “always a fact in favour of the accused”. There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury's notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: “the more heinous the act … the more important becomes the question of motive.” If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard. (6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, “there may be a motive, and perhaps a strong one, but no evidence of it available”. In Pointer v United States, the Supreme Court of the United States put it this way: “The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction.” (citations omitted) 41 We are satisfied that the trial Judge’s directions were not inadequate as to motive. As set out above, the trial Judge directed the jury that the term ‘motive’ is used in the sense of having a reason to do a particular act and noted that there may be many reasons for doing an act; and proof of motive is not an element of the offence of murder and need not be proved by the prosecution. His Honour instructed the jury that in a case such as this, where the evidence does not clearly establish a motive for the accused to kill Mrs Poll, one must not adopt a process of, or akin to, speculating about what motive he may have had and then use that possibility as a factor to be taken into account in assessing whether guilt has been established, or engage in ‘bootstrap reasoning’. As his Honour made clear, the absence of motive is still to be taken ‘into account with all the rest of the facts’ by the jury when coming to the final decision of whether or not it has been proven beyond reasonable doubt that the accused was guilty of murder. 42 In light of those directions, there is no basis to suggest that the jury would have failed to understand that while the prosecution need not prove motive beyond reasonable doubt, an absence of motive on the part of the appellant was a factor which they could take into account when determining whether his guilt had been proved. Whilst the trial Judge noted that the prosecution’s position as to motive was ‘responsible’ and the prosecution ‘would not know what [the motive] was themselves in a case like this’, those statements were directed towards, and would have been understood as, referable to the prosecution’s approach in not relying on a motive when there was no evidentiary basis for doing so. -- 17 of 90 -- [2023] SASCA 80 The Court 14 43 Whilst it would have been preferable for the trial Judge to have referred to, or summarised, defence counsel’s arguments as to the appellant’s lack of motive to commit the offence, we are satisfied that the failure to do so did not result in a miscarriage of justice. The jury would have well understood that the apparent absence of a motive for the appellant to commit the offence was a factor which they could take into account when determining whether the prosecution had proven the appellant’s guilt beyond reasonable doubt. 44 Further, defence counsel did not, at any point during the summing up, request that the trial Judge give further directions on the topic of motive. While not determinative, the absence of any such request provides some practical indication that the trial Judge’s directions were sufficient to resolve the issues in the case. 45 We refuse permission to appeal on Ground 1. Grounds 2 and 2A – The blood and DNA deposition evidence 46 These grounds of appeal relate to the alleged wrongful admission of the DNA evidence, and the trial Judge’s directions as to the blood and DNA deposition evidence. Ground 2A – Admissibility of the DNA results 47 The appellant complains that the trial Judge erred as a matter of law in admitting evidence of the DNA results. There are four limbs to this argument which are as follows. First, the trial Judge provided inadequate reasons for his ruling which did not sufficiently expose the process of reasoning by which he admitted the DNA evidence. Second, the use of ‘familial testing’ constituted a breach of the CLFPA such that the evidence ought to have been excluded in the exercise of the discretion reposed in Bunning v Cross (‘the discretion’).4 Third, police obtained the appellant’s DNA sample through unlawful or improper behaviour and the evidence ought to have been excluded in the exercise of the Court’s discretion. Fourth, the DNA evidence was inadmissible by reason of the prosecution’s inability to prove the chain of evidence or exclude the risk of contamination beyond reasonable doubt. In effect, the fourth limb of the complaint invokes largely the same submissions made in relation to Ground 2. 48 At trial, defence counsel challenged the DNA results on the basis that ‘familial searching’ by Forensic Science South Australia (‘FSSA’) of the South Australian Criminal Reference and Evidence DNA Database (‘SACREDD’) which provided information that the appellant’s brother was a possible relative of the unknown male contributor to the crime scene sample JPH6.1.A, was unlawful. Evidence regarding the process of ‘familial searching’ undertaken at FSSA was adduced from two forensic scientists who were employed there at the relevant time: Dr Duncan Taylor and Dr Damien Abarno. 4 Bunning v Cross (1978) 141 CLR 54. -- 18 of 90 -- [2023] SASCA 80 The Court 15 49 The trial Judge ruled that the DNA evidence was admissible as a matter of law and, in any event, he would not have exercised his discretion to exclude the evidence. His Honour said: I presently have before me a rule 49 notice filed by the defence which seeks 10 orders concerning exclusion of evidence. … As to proposed order 5 concerning the DNA evidence, I now rule in favour of the prosecution and rule that the DNA evidence is, in fact, admissible as a matter of law. Of course, I have to also consider the further question of discretionary exclusion. I note, of course, s.47 of the Forensic Procedure Act does refer to this topic, but 47(1) is limited to evidence which is obtained as a result of the forensic procedure. And that evidence is stated to be not admissible in evidence against the person on whom the procedure was carried out. That, of course, is not the factual situation in the present case, and counsel for the defence quite reasonably concedes that that is the position, and that what she is, in fact, relying upon is the common law Bunning v Cross discretion to exclude. As to the exercise of that discretion, I would decline to exclude any of the evidence, having taken into account all of the well-known factors referred to in Bunning v Cross and, of course, the facts and circumstances in this particular case. I do not propose to give any further detailed reasons on that now but that is my ruling. Adequacy of reasons 50 As to the first limb, the appellant submits that the trial Judge’s reasons are inadequate. 51 The obligation to give reasons for intermediate evidentiary rulings was considered by the Full Court of the Supreme Court of Western Australia in Webb v The Queen5 (‘Webb’). Justice Ipp said:6 Where an omission to give reasons at the conclusion of a voir dire concerning the admissibility of a confession results in it not being possible to determine whether the presiding judge has considered the true issues, and whether he has applied the appropriate legal principles and has taken all relevant factors into account, legal error is disclosed. If that were not the case the statutory right of appeal would be rendered nugatory. It is crucial that the judge's reasons be sufficient to satisfy the overriding principle, namely, that the decision be couched in such a form as to make it possible for an appellate court, fairly, to assess its merits. 52 The case of Webb involved the admissibility of a confession where in issue was the appellant’s intellectual capacity to comprehend relevant matters whilst giving evidence. The Court held that the reasons were inadequate as they did not 5 (1994) 13 WAR 257. 6 Webb v The Queen (1994) 13 WAR 257 at 271 per Ipp J (with whom Malcolm CJ and Seaman J agreed). -- 19 of 90 -- [2023] SASCA 80 The Court 16 reveal whether the judge, at first instance, had properly considered the relevant issues and applied the appropriate legal principles. As the matter concerned a factual dispute turning on issues of credibility, the Court was not in the same position as the primary judge to arrive at its own view; and the appeal was allowed. 53 In Madubuko v The Queen7 the Court of Criminal Appeal of New South Wales considered the failure to give reasons in the context of an application by the appellant for a separate trial. The appellant complained that the failure to provide reasons constituted an error of law. In dismissing the appeal, Hodgson JA said:8 Considering first the question of failure to give reasons, such failure does generally constitute an error of law where reasons are appropriate, but this does not necessarily require that an appeal be upheld. In particular, if the matter as to which reasons are not given is one on which an appeal court can come to its own view, and if that view is that the result arrived at by the primary judge was correct, then normally an appeal would be dismissed. 54 In the present case, the trial Judge was required to determine whether familial searching was permitted under the CLFPA. This involved an exercise in statutory construction. Depending on the determination of that question, the trial Judge was then required to determine whether the DNA results (subsequently obtained from a comparison between the appellant’s DNA profile taken from his arrest buccal swab and the crime scene samples) ought to be excluded in the exercise of his discretion. In considering whether to exercise his discretion to exclude the evidence, the trial Judge was also required to take into account defence counsel’s submission as to the lawfulness by which the appellant’s DNA sample was first obtained by police from a coffee cup which was said to have been discarded by the appellant into a nearby bin. 55 It is to be accepted that the trial Judge’s reasons were brief and did not specifically address the issues raised by counsel, nor provide an analysis of the relevant legislative provisions which were the subject of comprehensive oral and written submissions. However, the absence of detailed reasons does not present this Court with any impediment in determining whether the trial Judge’s ruling was correct. In doing so, there is no need for this Court to consider any issues of credibility, nor is there any dispute as to the factual basis upon which the issues arise for determination. The trial Judge did not enjoy any advantage over this Court in deciding whether the DNA evidence ought to be admitted. Accordingly, if the DNA evidence was properly admitted, the brevity of reasons for doing so does not constitute an error of law which would require that the appeal be allowed. Familial Searching 56 Turning to the appellant’s second contention, that the trial Judge erred in finding that ‘familial searching’ was authorised by the CLFPA or, alternatively, 7 (2011) 210 A Crim R 249. 8 Madubuko v The Queen (2011) 210 A Crim R 249 at [22] per Hodgson JA (with whom Hoeben J and Grove AJ agreed). -- 20 of 90 -- [2023] SASCA 80 The Court 17 that he erred in declining to exclude the DNA evidence in the exercise of his discretion, we first set out the statutory framework upon which the appeal must be decided. The statutory framework 57 The CLFPA provides for the carrying out of forensic procedures to obtain evidence relevant to the investigation of criminal offences and for other purposes, and to make provision for a DNA database. The CLFPA confers power, in certain stated circumstances, upon the police or a law enforcement authority to obtain forensic material (relevantly, a DNA sample and DNA profile) from a person through the conduct of a forensic procedure. 58 The CLFPA purports to strictly regulate the circumstances in which a DNA profile may be obtained in the course of carrying out a forensic procedure; what may, or may not, be done with a DNA profile once obtained; and what may, or may not, be done in relation to the DNA database. 59 The structure of the Act is as follows: 1. Part 1 includes an interpretation section. 2. Part 2 authorises the carrying out of forensic procedures upon persons. There are four categories of ‘persons’ defined under this Part. Division 1 governs procedures relating to volunteers and victims. Division 2 governs procedures relating to suspects. Division 3 governs procedures relating to offenders. Division 4 governs blood testing of certain persons for communicable diseases. 3. Part 3 makes provision for the carrying out of forensic procedures. 4. Part 4 concerns material obtained by the carrying out of forensic procedures and how it is to be dealt with. 5. Part 5 makes provision for the ‘DNA database system’, including access to, and use of, the database. 6. Part 6 concerns evidence including the effect of non-compliance with the CLFPA.9 7. Part 7 concerns miscellaneous matters including confidentiality or non-disclosure provisions.10 60 The terms ‘forensic material’ and ‘forensic procedure’ are defined in s 3 as follows: 9 Relevantly, s 47 of the CLFPA relates to the effect of non-compliance on the admissibility of evidence. 10 Relevantly, s 50 of the CLFPA sets out the requirements in relation to confidentiality. -- 21 of 90 -- [2023] SASCA 80 The Court 18 forensic material means material obtained by carrying out a forensic procedure (but does not include the results of the analysis of any such material); forensic procedure means a procedure carried out by or on behalf of South Australia Police or a law enforcement authority and consisting of— (a) the taking of prints of the hands, fingers, feet or toes; or (b) an examination of a part of a person's body (but not an examination that can be conducted without disturbing the person's clothing and without physical contact with the person); or (c) the taking of a sample of biological or other material from a person's body (but not the taking of a detached hair from the person's clothing); or Note— This would include, for example, taking a sample of the person's hair, a sample of the person's fingernails or toenails or material under the person's fingernails or toenails, a blood sample, a sample by buccal swab or a sample of saliva. (d) the taking of an impression or cast of a part of a person's body; Note— This would include, for example, the taking of a dental impression or the taking of an impression or cast of a wound. 61 In relation to the retention of DNA samples and DNA profiles, s 41(1) provides that the Commissioner of Police may maintain a ‘DNA database system’. 62 The term ‘DNA database system’ is defined in s 40 of the CLFPA as follows: DNA database system means a database (whether in computerised or other form and however described) containing— (a) the following indexes of DNA profiles and information that may be used to identify the person from whose biological material each DNA profile was derived: (i) a crime scene index; (ii) a missing persons index; (iii) an unknown deceased persons index; (iv) a suspects/offenders index; (v) a volunteers (unlimited purposes) index; (vi) a volunteers (limited purposes) index; and (b) a statistical index; and -- 22 of 90 -- [2023] SASCA 80 The Court 19 (c) any other index prescribed by the regulations; 63 Relevantly, the terms ‘crime scene index’ and ‘suspects/offenders index’ are also defined in s 40 as follows: crime scene index means an index of DNA profiles derived from biological material found— (a) at any place (whether within or outside Australia) where an offence was, or is reasonably suspected of having been, committed; or (b) on or within the body of the victim, or a person reasonably suspected of being a victim, of an offence; or (c) on anything worn or carried by the victim at the time when an offence was, or is reasonably suspected of having been, committed; or (d) on or within the body of any person, on any thing, or at any place, associated with the commission of an offence; … Suspects/offenders index means an index of DNA profiles derived from forensic material of persons— (a) on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 1 if an assimilation order has been made in relation to the material or a court or other authority has ordered, in accordance with a corresponding law, that the material be treated as if it were material obtained from a person suspected of an offence; and (b) on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 2, or a corresponding law; and (c) on whom forensic procedures have been carried out in accordance with an authorisation under Part 2 Division 3 or a corresponding law. 64 The DNA database maintained by the Commissioner is, as previously mentioned, called ‘SACREDD’. 65 Other provisions in Part 5 of the CLFPA regulate what information from forensic material may be included in the database, and creates offences for the unauthorised storage, accessing and retention of such information, as well as a criminal penalty provision for intentional or reckless disclosure of such information. 66 Section 45(2) sets out the purposes for which a person authorised by the Commissioner of Police may access information stored on the DNA database. It provides: (2) A person authorised by the Commissioner of Police may access information stored on the DNA database system for 1 or more of the following purposes: -- 23 of 90 -- [2023] SASCA 80 The Court 20 (a) for the purpose of comparing a DNA profile stored on an index of the DNA database system with any other DNA profiles stored on the DNA database system; (b) for the purpose of proceedings for a serious offence or proceedings under the Criminal Assets Confiscation Act 2005; (c) for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act or a corresponding law; (d) for the purpose of a coronial inquest or inquiry; (e) for the purpose of making the information available to the person to whom the information relates; (f) for the purpose of administering the DNA database system; (g) for the purpose of an arrangement entered into by the Minister under section 41(2); (h) for the purpose of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 of the Commonwealth; (i) for the purpose of an investigation by the Ombudsman or the Police Ombudsman; (j) for the purpose of an audit under section 57; (k) for any other purpose prescribed by regulation. 67 In Part 7 of the CLFPA there are provisions as to confidentiality including s 50 which provides: 50—Confidentiality (1) A person who has, or has had, access to information obtained under this Act or information stored on the DNA database system must not disclose the information unless— (a) the disclosure is necessary for criminal investigation purposes or a missing persons inquiry; or (b) the disclosure is necessary for the purpose of proceedings for a serious offence or proceedings under the Criminal Assets Confiscation Act 2005; or (c) the disclosure is necessary for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act or a corresponding law; or (d) the disclosure is necessary for the purpose of a coronial inquest or inquiry; or (e) the disclosure is necessary for the purpose of making the information available to the person to whom the information relates; or -- 24 of 90 -- [2023] SASCA 80 The Court 21 (f) the disclosure is necessary for the purpose of administering the DNA database system; or (g) the disclosure is necessary for the purpose of an arrangement entered into by the Minister under section 41(2); or (h) the disclosure is necessary for the purpose of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988 of the Commonwealth; or (i) the disclosure is necessary for the purpose of an investigation by the Ombudsman or the Police Ombudsman; or (j) the disclosure is necessary for the purpose of an audit under section 57; or (k) the disclosure is made to a legal practitioner and is made for the purpose of obtaining legal advice; or (l) the information is publicly known; or (m) the disclosure is necessary for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure was carried out; or (n) the disclosure is necessary for the medical treatment of the person to whom the information relates or any other person; or (o) the person to whom the information relates consents to the disclosure; or (p) the information is disclosed for a purpose of a kind prescribed by regulation. (2) A person who intentionally or recklessly discloses information in contravention of this section is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. The forensic processes undertaken by FSSA 68 In considering whether ‘familial searching’ is permitted under the CLFPA, it is necessary to outline the specific forensic processes by which the relevant DNA profiles were obtained, and the scientific tasks undertaken in this case, which have compendiously been referred to as ‘familial searching.’ 69 The appellant’s DNA profile was obtained in the following way. 70 An investigation into the murder of Mrs Poll commenced in April 1993. No arrest was made, and the investigation remained open. In 1993, various crime scene samples (collected from the newsagency store) were analysed at FSSA utilising DNA profiling systems, available at the time, which targeted up to four regions, or loci, on the DNA strand. In 1999, FSSA commenced using the Profiler Plus System which targeted nine loci, plus a gender determining locus, and carried -- 25 of 90 -- [2023] SASCA 80 The Court 22 greater discriminating power in distinguishing individuals. In December 2001, FSSA reported that one of the crime scene samples (from a plastic holder containing receipts and paperwork in Mrs Poll’s handbag labelled JPH1.6.A) yielded a DNA profile of an unknown male on an item described as ‘a plastic holder and receipts and motor reg papers from black handbag’. This unknown male DNA profile was uploaded onto the SACREDD. 71 As of August 2009, there was no match between the unknown male DNA profile and any other DNA profile held on the SACREDD. Police requested FSSA to compare the unknown male DNA profile against other DNA profiles held in the database to identify possible relatives of the donor of that sample. It is this process of comparison which is described as ‘familial searching’. We will set out in more detail later the scientific task involved in that process in this case. 72 Dr Taylor, a Forensic Scientist at FSSA, undertook the process of familial searching and identified a number of potential female relatives of the donor of the unknown male DNA profile (‘the first familial search’). 73 As of 29 November 2016, there was still no match between the unknown male DNA profile and any other DNA profile held on the database. Dr Taylor undertook a second familial search. By this time the FSSA was using the GlobalFiler DNA Profiling System targeting 21 loci on non-sex chromosomes and three loci on sex chromosomes. Thus, it had greater power to distinguish relatives from non-relatives. In addition to identifying several potential female relatives of the donor of the unknown male profile, this second familial search identified one potential male relative on the basis of shared possession of the same Y-Chromosome profile. The male relative was identified as the appellant’s brother, whose DNA profile was on the suspects/offenders index of the SACREDD. 74 There was no suggestion at trial, or before this Court, that the DNA profile of the appellant’s brother, or the DNA profile of the unknown male, were not lawfully and properly on the relevant indices of the database. 75 The second familial searching report was forwarded by the FSSA to the investigating police officer, Detective Roderick Huppatz. He then made inquiries into members of the Tilley family and, ultimately, the appellant. 76 On 5 September 2019, Detectives Huppatz and Tucker travelled to Ballarat, Victoria and, once there, contacted the appellant advising him of their wish to speak with him. 77 On 6 September 2019, they met with the appellant in Daylesford and advised him that a family member (his brother) whose profile was on the DNA database was similar to a DNA profile located at the crime scene of the murder of Mrs Poll. Detective Huppatz also advised the appellant of the possibility of a male relative of the appellant’s brother having a similar or matching DNA profile, and requested a ‘volunteer sample’ from the appellant. The appellant declined to provide a -- 26 of 90 -- [2023] SASCA 80 The Court 23 sample. A short time later, Detective Huppatz observed the appellant discard a disposable coffee cup into a public rubbish bin. Once the appellant had left the area, Detective Huppatz retrieved the coffee cup from the bin, sealed it in a paper envelope and brought it back to Adelaide where it was subsequently submitted to FSSA for DNA analysis. 78 Dr Taylor extracted a mixed DNA profile from a sample taken from the coffee cup, the major component of which was compared to the unknown male DNA profile from the crime scene sample JPH1.6.A. Dr Taylor calculated a likelihood ratio of more than 100 billion in favour of the hypothesis that the contributor of the major component of the DNA sample taken from the coffee cup was a contributor to the single source crime scene profile extracted from sample JPH1.6.A. 79 On 21 September 2019, on the basis of that aforementioned DNA result, the appellant was arrested for the murder of Mrs Poll. On 23 September 2019, he was extradited to South Australia and police took a buccal swab from him. There was no dispute that the appellant’s arrest buccal swab was lawfully obtained under the CLFPA. The forensic material from the appellant’s buccal swap was used for comparison with the crime scene samples (including JPH1.6.A) resulting in the impugned DNA evidence. 80 Thus, there were in fact three processes engaged in by the FSSA which produced the DNA results. 81 The first process involved the ‘familial searching’ of the database. More specifically, Dr Taylor compared the DNA profile of the unknown contributor to sample JPH1.6.A with profiles on the suspects/offenders index on SACREDD (including that of the appellant’s brother). This involved identifying the commonality of alleles between two profiles (one being the unknown male DNA profile extracted from JPH1.6.A) with a view to drawing some statistical evaluation as to the relatedness between the donor of the two DNA profiles. FSSA then conducted an analysis of Y-Chromosome short tandem repeats (Y-STR) profiles, which enabled the identification of potential close male relatives on account of the Y-Chromosome passing down unchanged via paternal lineage. 82 More specifically, in the second familial search, Dr Taylor compared the unknown male profile to reference profiles of suspects and convicted offenders that had been uploaded to SACREDD up to 25 October 2016.11 Dr Taylor calculated paternity12 and sibship13 indexes and then further investigated the top 100 most likely potential relatives. Following analysis on the GlobalFiler system, it was determined that the appellant’s brother possessed the same Y-Chromosome 11 The first search only identified potential female relatives. 12 A paternity index is a ratio that specifically considers the likelihood of two people being a parent and child, as opposed to being unrelated. 13 A sibship index is a ratio that specifically considers the likelihood of two people being either siblings or unrelated. -- 27 of 90 -- [2023] SASCA 80 The Court 24 profile as the unknown male contributor to the DNA profile extracted from JPH1.6.A. Further, the sibship index was 255, meaning that the probability of obtaining the profile of the unknown male DNA sample and the profile of the appellant’s brother was 255 times higher if they were siblings than if they were unrelated to each other. This likelihood ratio was described as ‘very strong support’ for that hypothesis. 83 The second forensic process undertaken by the FSSA involved extracting a DNA profile from a swab taken from the discarded coffee cup. It was common ground at trial, and in this Court, that this process did not involve a ‘forensic procedure’ as defined by the CLFPA. Further, the DNA profile was not uploaded to the database because it did not meet the definition of ‘forensic material’ that may form part of the crime scene index (or any other index). The FSSA compared the DNA profile obtained from the discarded coffee cup with the unknown male DNA sample taken from the crime scene sample JPH1.6.A. This was a direct comparison between DNA profiles which did not involve accessing the DNA database. 84 The third process engaged in by the FSSA occurred after the appellant’s arrest. The appellant’s DNA profile was obtained from the buccal swab taken upon his arrest. The FSSA then conducted a series of direct comparisons between the appellant’s DNA profile and various crime scene samples. The results of that forensic work gave rise to the impugned DNA results/evidence adduced at trial. The parties’ submissions 85 The appellant contends that the process of ‘familial searching’ is not permitted under the CLFPA. The CLFPA allows for the obtaining of DNA profiles, and the retention of those DNA profiles onto a DNA database, in strictly prescribed circumstances. It amounts to legislation which authorises intrusion into an individual’s privacy and what would otherwise be tortious conduct. Accordingly, the legislative provisions should be strictly construed and applied. 86 The appellant emphasises that throughout the CLFPA a distinction is drawn between the rights of offenders as opposed to other members of the community. For example, there are three lawful means by which a person’s DNA profile may be obtained under the Act: volunteers and victims’ procedures, suspects procedures, and offenders’ procedures. In the case of a person who is not a suspect or an offender, there is no power to compel the provision of forensic material. The incursions permitted in respect of offenders are not permitted on other members of the community. 87 Moreover, the CLFPA creates a DNA database in two parts: one containing profiles and information that may be used to identify the person from whose biological material each DNA profile was derived (an ‘identified database’); and one which is compiled for statistical purposes and cannot be used to discover the identity of persons from whom the biological material was obtained (a ‘statistical -- 28 of 90 -- [2023] SASCA 80 The Court 25 database’). Thus, it is submitted that the CLFPA strictly regulates the use to which the profiles may be put. 88 The appellant submits that familial searching effectively creates ‘virtual profiles’ on the DNA database for relatives of persons legitimately on the database and, in that way, undermines the distinction the CLFPA seeks to draw between different categories of persons. Whilst the Act recognises that offenders and suspects have diminished rights of genetic privacy, that rationale does not apply to relatives of suspects or offenders. The appellant submits that if familial searching is permitted under the CLFPA, relatives of persons who are suspects or offenders, in effect, have less protections than those afforded to persons who volunteer forensic material and from whom consent is required before their DNA is put on the identity database. 89 The appellant submits that in the absence of express reference to familial searching by Parliament, it is not permitted under the CLFPA. Where there are clear restrictions on whose DNA may be obtained, what forensic material can be included on the DNA database and for what purpose, the CLFPA should not be construed as allowing ‘the effective inclusion in the database of persons who do not meet these restrictions.’ In the absence of express language to the contrary, the appellant submits that this Court should assume that Parliament did not intend the legislation to impinge on fundamental rights, namely the right to genetic privacy. 90 For the respondent, it is contended that familial searching does not involve an unlawful use of the DNA database. The respondent submits that s 45(2)(a) of the CLFPA expressly allows a ‘familial search’ in the sense that the technical forensic searching task undertaken in this case involved a comparison of DNA profiles lawfully stored on the database. Consideration 91 This Court must begin with the words used by the section considered in their statutory context. A plain reading of s 45(2)(a) permits an authorised person to access information stored on the database for the purpose of comparing one profile stored on the database with another profile stored on the database. In the present case, the scientific task described as ‘familial searching’ involved the comparison of DNA profiles lawfully stored on the database. More specifically, the FSSA undertook numerous individual comparisons of DNA profiles in the suspects/offenders index and identified one potential male relative of the donor of the unknown male DNA profile taken from the crime scene sample JPH1.6.A. 92 Contrary to the appellant’s contentions, a plain reading of s 45(2)(a) which permits familial searching is also supported by the broader context, and purpose, of the CLFPA. 93 The legislative provisions, which provide for a DNA database and regulate the information which may be stored within the database and its use, are enacted in the context of a statutory scheme which envisages the storage of DNA profiles -- 29 of 90 -- [2023] SASCA 80 The Court 26 on a database for future use in connection with ongoing and future criminal investigations, and for admission into evidence. 94 Notwithstanding the express strictures within the CLFPA as to what will constitute an impermissible use of the database, it does not expressly preclude familial searching (in terms of the scientific processes which were undertaken in this case.) By contrast, for example, s 45(3)(a) provides that a person must not compare a DNA profile stored on the volunteers (limited purposes) index, with a DNA profile stored on another index, if the volunteer has not granted consent. There is no such restriction placed on the use of familial searching. 95 Further, s 50 of the CLFPA prohibits disclosure of information stored on the database unless the disclosure is necessary for a specified purpose or otherwise authorised by the section. The disclosure exceptions in s 50(1) align with the permissible use provisions in s 45(2). In particular, s 50(1)(a) permits disclosure where it is ‘necessary for criminal investigation purposes or a missing persons enquiry’, and complements s 45(2)(a) which authorises the disclosure of results of a database search to law enforcement for the purpose of criminal investigation. Thus, read together, ss 45 and 50 govern the permissible and impermissible uses of forensic material stored within the DNA database and support a plain reading of s 45(2)(a) to permit familial searching as it was conducted in this case. 96 In relation to the appellant’s submissions that familial searching (as it was conducted in this case) infringes a person’s right to genetic privacy such that, unless expressly provided, s 45(2)(a) should not be construed to permit familial searching, it is important to emphasise the limited reach of the actual processes undertaken. The familial searching conducted in this case did not reveal the appellant’s DNA profile, nor did it migrate his DNA profile into the database at all. The familial searching exercise only resulted in the identification of the appellant’s brother as a potential male relative of the contributor to the unknown male DNA profile extracted from the crime scene sample JPH1.6.A. It did not engage directly, or at all, with the appellant’s DNA profile. As much is borne out by the prosecutor’s concession at trial that the police, upon receipt of the second familial search report, did not have reasonable cause to suspect the appellant of having committed the offence; and once he declined to provide his DNA sample, they had to resort to other investigative techniques outside of conducting a forensic procedure (as defined in the CLFPA) to further their investigation. 97 It is a moot point whether, if the appellant had been included in the volunteers (limited purposes) index, familial testing may still have revealed that he was a relative of the appellant’s brother (without his consent) as, without more, that information would not reveal or yield any information about his DNA profile and would not infringe any right he may have had to genetic privacy. 98 For those reasons, we are satisfied that s 45(2)(a) of the CLFPA permits the scientific task of familial searching, as it was conducted in this case, and it was not unlawful. -- 30 of 90 -- [2023] SASCA 80 The Court 27 The appellant’s DNA from the discarded coffee cup 99 The appellant contends the mechanism by which police obtained his DNA profile was unlawful or improper such that it ought to have been excluded in the exercise of the Bunning v Cross discretion. In support of that contention, the appellant submits that the CLFPA codifies the powers of police to obtain forensic samples; and his DNA sample was obtained outside of the procedures permitted by it. The appellant submits that having exercised his right to refuse to undergo a forensic procedure, the police’s conduct in seizing his discarded coffee cup undermined that right and directly contravened the CLFPA. 100 The CLFPA regulates the circumstances in which a DNA profile may be obtained by the carrying out of a forensic procedure. The conduct of Detective Huppatz in seizing the appellant’s discarded coffee cup did not constitute a ‘forensic procedure’ as defined in the CLFPA. Further, the sample extracted from the coffee cup (from which a DNA profile was obtained) did not constitute ‘forensic material’ in that it was not ‘material obtained by carrying out a forensic procedure’ as defined. 101 The CLFPA does not purport to regulate all forensic procedures per se; rather it only governs the carrying out of procedures defined as ‘forensic procedures’ in s 3. It says nothing about the procedures to be followed in obtaining forensic samples from inanimate objects found in public places. Contrary to the appellant’s submissions, the Act does not go so far as to codify the manner by which police are required to obtain all forensic samples. Accordingly, the seizure of the appellant’s discarded coffee cup from which his DNA profile was extracted did not engage the provisions of the CLFPA. 102 The appellant has not identified any other law purportedly contravened by police. The appellant discarded his coffee cup in a public place. There was no suggestion it was obtained by trickery or by the provision of any misleading information. There is no basis to find that police seizure of the coffee cup, and the appellant’s subsequent extraction of a DNA sample from it, was unlawful or improper such as to enliven the exercise of the Bunning v Cross discretion. 103 Given that the seizure of the coffee cup does not constitute a ‘forensic procedure’ for the purposes of the CLFPA, we are also satisfied that s 47 does not govern the question of the admissibility of the DNA evidence. 104 As to the appellant’s complaint that the DNA evidence should have been excluded on the basis that the prosecution could not establish the chain of evidence, nor exclude the risk of contamination beyond reasonable doubt, there was sufficient evidence before the jury capable of establishing both matters. There was a vast amount of evidence adduced by the prosecution as to the movement of the crime scene samples, and on the issue of potential contamination. Those matters were also the subject of considerable emphasis in the addresses of counsel. The issue of whether those matters were proven beyond reasonable doubt was a question for the jury. -- 31 of 90 -- [2023] SASCA 80 The Court 28 105 For those reasons, we refuse permission to appeal on Ground 2A. Ground 2 – Directions on the prosecution blood and DNA deposition evidence 106 The appellant complains that the trial Judge failed to instruct the jury that they had to find both the chain of evidence and the exclusion of the risk of contamination of the crime scene samples proven beyond reasonable doubt, as both matters were indispensable intermediate findings in proof of the offence of murder. 107 The trial Judge gave a Shepherd direction14 in respect of the evidence he compendiously referred to as the ‘blood and DNA deposition evidence’ and instructed the jury that it was an intermediate fact which formed an indispensable basis for an inference of guilt such that it must be proven beyond reasonable doubt. The appellant complains that the trial Judge erred in not further directing the jury that the chain of evidence, and exclusion of contamination of the crime scene samples, had to be proven beyond reasonable doubt. In considering that contention, it is necessary to set out the trial Judge’s directions in full. His Honour said: Now, ladies and gentlemen, I have already given you detailed directions about circumstantial evidence. I am not going to go through all of that again, but I have just made the point to you again that what we are dealing with, DNA evidence, is of course a type of circumstantial evidence. And I have given you the analogy of a rope with a number of strands in it and two of the strands, let us say two of the strands here, are composed – I will make it simpler for you. The rope has a number of strands. One of the strands is comprised by what I have termed the “prosecution blood and DNA deposition evidence”. Now, the position here is slightly different to the usual type of circumstantial evidence, and so I give you the further direction. I have previously said that in most cases of circumstantial evidence, it is not necessary to look at any one strand of circumstantial evidence individually and find that strand proven beyond reasonable doubt before you can consider it together with the other evidence in the case. Usually you look at all of the evidence taken together and then decide whether the case is proven beyond reasonable doubt. However, in the present case, the prosecution blood and DNA deposition evidence strand is, indeed, a very major part of the prosecution case. There are other strands, and I will mention them and you can think of a few, but the prosecution blood and DNA deposition strand is a very major part of the prosecution case. Accordingly, I direct you that you may only act on the DNA statistical evidence, or the likelihood ratios, you have heard about if you are satisfied of the accuracy and reliability of the prosecution blood and DNA deposition evidence beyond reasonable doubt. So the prosecution blood and DNA deposition evidence has got to be proven beyond reasonable doubt and if it is not,15 then that would be an end of the case, really. If it is,16 that is not an end of the case. It is proven beyond reasonable doubt, but you still go on to say ‘Right, I take that prosecution blood and DNA deposition evidence that I have found established beyond reasonable doubt as one strand’. I now look at other strands I am prepared to find established (but not within themselves beyond reasonable doubt, as you 14 See Shepherd v The Queen (1990) 170 CLR 573. 15 Emphasis original. 16 Emphasis original. -- 32 of 90 -- [2023] SASCA 80 The Court 29 will understand), and put them in the rope. ‘Does the entire rope, consisting of the blood and DNA deposition strand, together with what other strands I consider should be there, does that rope mean that the accused is to be found guilty on the basis of proof beyond reasonable doubt?’ Or, in other words, that the charge of murder is proven beyond reasonable doubt on the basis of that combination of circumstantial evidence. Now, in order to be satisfied beyond reasonable doubt that the prosecution blood and DNA deposition evidence is proven, you need to look at a number of things when you are determining whether the likelihood ratios you are asked to act upon are accurately calculated. And so, you do need to look at the process of taking of samples, storage of samples, analyses, and determine whether the evidence proves the safety of that process and the accuracy of that process beyond reasonable doubt. I direct you in that way because I consider that it is an essential step in reasoning in this particular case and, indeed, that the prosecution asks you to follow that process here, in order to establish its case. Accordingly, that all means that unless the “prosecution blood and DNA deposition evidence” is so proven beyond reasonable doubt, the reasoning relied upon by the prosecution must fail and you would return a verdict of not guilty. However, as I say, if you are satisfied that the prosecution blood and DNA deposition evidence has been proven beyond reasonable doubt, it would then remain for you to consider the evidence of those likelihood ratios that you have heard in combination with other prosecution evidence you consider to be established when ultimately considering whether the prosecution has proven the accused’s guilt beyond reasonable doubt. (emphasis added) 108 During the course of the trial, defence counsel sought a direction that each link in the chain of evidence, and the exclusion of contamination of the crime scene samples (either at the crime scene or at FSSA), had to be excluded beyond reasonable doubt. The trial Judge declined to direct the jury in that manner and considered that the two issues did not need to be separated out, but rather, could be subsumed within the one direction. 109 The appellant now submits that for the blood and DNA deposition evidence to be proven beyond reasonable doubt, the jury had to be satisfied that the chain of evidence was complete and that the samples were not contaminated. As such, both matters were indispensable intermediate facts and it was necessary for the jury to find both matters proven beyond reasonable doubt. 110 Moreover, the appellant contends that there was an insufficient nexus between the trial Judge’s Shepherd direction, on the one hand, and the requirements of proof beyond reasonable doubt of the links in the chain of evidence and the exclusion of contamination, on the other. Accordingly, the direction was inadequate. -- 33 of 90 -- [2023] SASCA 80 The Court 30 111 In Nasaris v The Queen,17 this Court had regard to the authorities governing the circumstances in which it may be necessary and appropriate to give a Shepherd direction. The Court said:18 The authorities governing the circumstances in which it may be necessary or appropriate to give a Shepherd direction were recently summarised by this Court in R v Singh.19 It is not necessary to repeat that summary. It is sufficient to observe that:20 In determining whether, in a particular circumstantial case, a Shepherd direction is appropriate, it will be necessary to consider the role and significance of the particular evidence or fact in respect of which the direction is said to be appropriate. If, by reason of either the inherent role or significance of that evidence or fact in the case, or in light of the way in which the case has been conducted, it forms an indispensable link in the chain of reasoning towards the defendant’s guilt, then such a direction may be appropriate. 112 It is to be accepted that the trial Judge was required to give a Shepherd direction in relation to the blood and DNA deposition evidence. The trial Judge had earlier set out for the jury what he meant by the terms ‘blood and DNA deposition evidence.’ His Honour said: For reasons that I will explain, the topic of blood is very important in this case for several reasons, and I will take you through them, but it is intimately woven into an analysis of DNA. Why is that so? Because in this particular case we are talking about DNA evidence which on the prosecution case is derived from the deposition of blood by the killer, on their case, at the crime scene. On their case, the killer nicks himself with the knife, he bleeds, he deposits blood at particular points at the crime scene. I will take you through these, and it is by taking a sample of those blood deposits and then analysing those samples for DNA that DNA results come before you. 113 It is evident the trial Judge highlighted that on the prosecution case, the significance of the DNA evidence, lay in the crime scene samples having been extracted from bloodlike stains deposited at various locations between Mrs Poll’s body in the rear office and the sole point of entry/exit to the newsagency. 114 On the prosecution case, the secondary source of blood (other than that associated with Mrs Poll) was deposited by the offender after he had been injured during the knife attack on Mrs Poll. The probative force of the evidence was derived from the combination of the DNA results having been extracted from bloodlike stains, and the location of those stains in a path from Mrs Poll’s body to the only operable entry/exit to the store. 115 The trial Judge explained to the jury the process by which a likelihood ratio is obtained; that is, by a DNA profile being extracted from a crime scene sample and compared with a DNA profile obtained from a reference sample provided by a person of interest, thus resulting in a likelihood ratio. His Honour then said, 17 [2021] SASCA 143. 18 Nasaris v The Queen [2021] SASCA 143 at [37] per Livesey P, Doyle and David JJA. 19 R v Singh [2019] SASCFC 51 at [86]-[113] per Doyle J (with whom Peek and Parker JJ agreed). 20 R v Singh [2019] SASCFC 51 at [89] per Doyle J (with whom Peek and Parker JJ agreed). -- 34 of 90 -- [2023] SASCA 80 The Court 31 ‘[t]hat is why I am going to refer to it by this compendious title of “prosecution blood and DNA deposition evidence”’. 116 As part of its case, the prosecution adduced detailed evidence relating to the chain of evidence on the incriminating DNA samples and as to the issue of the possibility of contamination. For example, to rebut the defence case regarding contamination of the DNA samples, the prosecution led evidence that, prior to the appellant’s DNA sample being submitted to FSSA, there were no pre-existing DNA reference samples relating to him stored in the laboratory. The prosecution also adduced evidence from the point of the identification recording and collection of samples by the crime scene examiners, through to police movement of exhibits (including to FSSA), through to the receipt, storage, evidence recovery, and DNA analytical processes undertaken at FSSA. There was also detailed evidence led about contamination minimisation measures undertaken as part of processing the crime scene, and internally within FSSA. This included police and FSSA processes for dealing with exhibits, samples, and overlapping issues about chain of evidence and contamination, all of which went to the integrity of the DNA results. 117 At trial, defence counsel undertook a generalised attack upon the accuracy and reliability of the DNA results based upon criticisms of crime scene collection techniques, police exhibit movement and storage methods, and FSSA processes for documenting analysis, movement, and storage of samples. Defence counsel did not contest the accuracy of the DNA results per se in that there was no challenge to the accuracy of the profiles obtained, or the calculated likelihood ratios. Rather, the challenge was confined to the chain of evidence, alleging that the possibility of contamination of the crime scene samples had not been excluded beyond reasonable doubt. 118 The trial Judge’s directions expressly linked the requirement of proof beyond reasonable doubt of the prosecution blood and DNA deposition evidence to an acceptance by the jury of the accuracy and reliability of the evidence. Proof of the chain of evidence and exclusion of contamination directly informed the accuracy and reliability of the blood and DNA deposition evidence. Given the manner in which the trial was conducted by both parties, the jury could have only understood the reference to the accuracy and reliability of the evidence as a reference to being satisfied beyond reasonable doubt as to the chain of evidence and the exclusion of contamination of the crime scene samples. For those reasons, additional directions of the kind sought by the appellant were not warranted. 119 We are satisfied the directions were adequate. We dismiss this ground of appeal. Grounds 3 and 3A – Evidence of M 120 Grounds 3 and 3A relate to the admission of the evidence of M. Ground 3A alleges that the trial Judge erred in admitting the evidence of M or, alternatively, in failing to exclude the evidence in the exercise of the Court’s discretion. Ground 3 concerns the trial Judge’s directions as to that evidence. There are four limbs to -- 35 of 90 -- [2023] SASCA 80 The Court 32 the appellant’s complaint. First, M’s evidence of the Warrnambool conversation exculpated the appellant in that it tended to prove that Mrs Poll was killed by another person (her husband, Darryl Poll) and the jury was not directed as to the exculpatory use of the evidence. Second, the jury was not directed that it was necessary to be satisfied beyond reasonable doubt that the Warrnambool conversation related to Mrs Poll. Third, the trial Judge’s directions as to the appellant’s purported lie were flawed in that they did not refer to the part of that evidence where the appellant’s credibility arose for consideration. Fourth, that the trial Judge did not adequately present the defence case on the exculpatory statements; this contention is considered under appeal Ground 4. 121 In considering those complaints, it is necessary to set out the relevant evidence adduced at trial in greater detail. 122 M commenced a relationship with the appellant around June 2019. The relationship ended in the week prior to the appellant’s arrest in September 2019. M gave evidence that the Warrnambool conversation took place in July 2019. She said that she and the appellant had been to a restaurant for a meal and had returned to her house. She said that she was talking about the fact that she had been single for several years and, during that time, was pursued by a married man. She said that she had consumed five alcoholic ciders between 7:30pm and about 10:00pm; and she was more than ‘a little bit tipsy.’ 123 M said that her and the appellant moved into the bedroom, whereupon the appellant gave the following account of an experience he had as a young man: He said that there was a woman that was much older than him that was after Miffy and he said that - he started to talk about - he said that she was married, that she was a lot older than him and then he started to talk about the sex that they had. He said she liked it with her legs up, that she liked it up against things and that she was petite, she was a little thing. And I asked if the sex was more exciting because she was married but I had noticed when he started to talk about this that his - his just demeanour had changed and his head was down and he was starting to look sad. I asked him if the sex was more exciting, given that this was sort of a fairly innocuous conversation previously and he said 'No, it was just sex' and then he said that it wasn't worth it and I thought - I was a bit confused by that and he said that she wasn't very attractive and then he put his head in his hands and he was - had moved from being up near the pillow end of the bed on his side of the bed to closer to me, I was standing at the door - inside of the door near the wardrobe and he sat on the edge on the corner of the bed and he put his hands in his head and he said that she liked it rough and that she asked him to do things. And then he moved around, I had a chair near a window where I put clothes on and he moved around to the bed - to the chair, sorry, and he stood there and he said 'She started telling me all this shit' and then he said 'And she was frightened, she was frightened that her husband would find out' and I said that she would be, because, you know, she would be frightened he would find out and he said 'No, she was frightened of him and she was petrified'. Then he moved over on my side of the bed and the conversation was a bit more rapid at this point and he said 'And there was another guy involved', I don't think he used the word 'involved' but he said there was someone else and that this guy was holding it over her, that he was going there and asking her for money. He said there was a lot of drugs around. He said that - and then his brother found out and he put his head in his hands and shook his head. He said 'The other guy was big and scary and a major drug dealer'. He said that her husband took drugs as well, he said they did drugs -- 36 of 90 -- [2023] SASCA 80 The Court 33 and there was drugs around. He said that the major drug dealer, the scary guy, said there was a lot of speed around and he said they did it together. Then he went back to the chair and he said 'She was frightened' and he said - and then - she was frightened her husband would find out and he said 'He did find out and he knifed her and they never got him for it' and then he walked over to me and I said 'How did you meet this woman?' and he said he met her - he said 'Well, she worked in a shop and I used to go in there and one night she asked me to come back and I did' and I said 'How long did that go on?' and he said 'Not even a couple of months'. And I was feeling very drained and tired at this point and overwhelmed and I could see he was very sad and drawn and sort of weary looking and he walked around and he got into bed and by that stage I had also walked around and got into bed and he was straight to sleep, which was normal really for Matt, and I laid there for a little while feeling overwhelmed and went to sleep. 124 M said that after the appellant’s arrest, she visited him at Yatala Labour Prison twice on the weekend of 26 and 27 October 2019. During the second visit, which lasted for about half an hour, she spoke with him at the visiting room. She gave evidence about their conversation (‘the Yatala conversation’): I said to Matt that I had come to tell him something, that I had - I asked him if he remembered when I was talking about having affairs and the conversation and he said 'No', and he said I could lean in and whisper what I needed to tell him. So I went to lean in and as I leant in, he said 'I never had sex with her'. And I said 'That's not what you told me'. And I then - then we were close - we were close (INDICATES) and I said to him - I whispered to him that 'You told me about an affair with Suzanne, you told me about the standover man and that her husband knifed her'. Then we pulled apart and he asked me - he said 'Who have you told?', and before I got a chance to say anything, he asked - he said 'My brothers?', and then I shook my head to say no, to indicate no. And then he said 'The police?', and I shook my head to indicate 'No'. And then I said ‘The lawyer'. 125 In cross-examination, it was put to M that the appellant said the woman with whom he was having an extramarital affair was ‘Vanessa.’ M responded that there were no names mentioned, including Mrs Poll’s name. Defence counsel also put to M, that there was no conversation about a woman being knifed to death; she disagreed. 126 M agreed that after learning of the appellant’s arrest, and before recounting the detail of the Warrnambool conversation to anyone, she did an internet search as to the charges the appellant faced and the ‘cold case’ of Mrs Poll. It was not suggested at any stage to M that there was no such conversation; rather, defence counsel challenged two aspects of it, namely that there was a reference to ‘Vanessa’ and that there was no reference to the woman being knifed. Defence counsel ultimately submitted that the conversation was not referable to Mrs Poll but another woman. 127 Mrs Poll’s husband, Darryl Poll, was also a prosecution witness at the trial. Mr Poll gave evidence-in-chief, relevantly, as follows: (a) Mr Poll was born and grew up in Adelaide. In the early 1980s he moved to Sydney. He met Mrs Poll in Sydney. (b) In 1984, Mr Poll and Mrs Poll were married. -- 37 of 90 -- [2023] SASCA 80 The Court 34 (c) In the middle of 1988, Mr and Mrs Poll and their children moved from New South Wales to South Australia. (d) From Mr Poll's perspective, his marriage to Mrs Poll was a 'happy one'. (e) In the early part of 1993, Mr Poll smoked marijuana about once a week, on the weekends. He grew marijuana plants for the purpose of smoking marijuana. (f) After 9:15 pm on 29 April 1993, Mr Poll became concerned when Mrs Poll had not returned home from work. He telephoned the newsagency but there was no answer. He also telephoned Mrs Poll's sister, Barbara Taylor, in case Mrs Poll had stopped at her sister's home, but she had not. After 9:30pm, Mr Poll drove to the newsagency. He saw Mrs Poll's car parked in a car park near John Street. Mr Poll saw that the lights inside the newsagency were illuminated. The door to the store was shut but not locked. Mr Poll entered the store and discovered his wife's body lying on the floor of a staff office area behind the counter. After attempting to resuscitate his wife, without success, Mr Poll telephoned the 000 emergency service. 128 Defence counsel cross-examined Mr Poll briefly. Mr Poll confirmed that he had a 'good marriage' with Mrs Poll. He was not aware of any affair between his wife and another person. He and Mrs Poll had not had any 'major falling-out'. 129 The prosecution also called Barbara Taylor, the sister of Mrs Poll. Mrs Taylor gave evidence-in-chief that in 1987 or 1988, Mr and Mrs Poll moved from New South Wales to South Australia. After that time Mrs Taylor visited Mrs Poll and her family regularly, 'probably once a week'. She observed the relationship between Mr and Mrs Poll. They were 'happy' and 'got on well together'. 130 Defence counsel did not cross-examine Mrs Taylor. 131 As discussed earlier, Detective Huppatz was the police officer with primary responsibility for investigating Mrs Poll's death. Detective Huppatz said in cross-examination that there was no evidence that he could find 'that there was ever any suggestion that [Mrs Poll] was having an affair or being unfaithful to her husband'. 132 Myfwanny Young, a former partner of the appellant, also gave evidence at the trial. Ms Young gave evidence that in the early 1990s she had a girlfriend/boyfriend relationship with the appellant. The relationship came to an end sometime after the appellant's 21st birthday in November 1993. As at November 1993, the appellant and Ms Young had been in a relationship for a couple of years. -- 38 of 90 -- [2023] SASCA 80 The Court 35 133 The prosecutor tendered, as part of the prosecution case, recordings of telephone conversations between the appellant and members of his family while the appellant was remanded in custody. Those conversations contained some exculpatory statements by the appellant and some admissions by him. The appellant stated that he was not responsible for Mrs Poll's murder. He was not present at the newsagency when she was attacked. The appellant acknowledged, however, that he knew of the newsagency, he had been in the store and his mother lived in the vicinity of the store. He told his former wife, Lucy Tilley, that the store was ‘more like a stationery shop than a newsagency.’21 The prosecutor's closing address at the trial 134 The prosecutor told the jury, correctly, in her closing address that the elements of the offence of murder do not require proof of motive. 135 The prosecutor commented that it was natural, in a case of this kind, to consider the ferocity and cruelty of the attack on Mrs Poll. The prosecutor then said that it was natural to think that 'someone with a great deal of personal hatred for [Mrs Poll] must have committed this crime'. That was an expectation based on 'so much of what we know about human beings'. The prosecutor added that 'human beings … can be unpredictable' and they 'can act without motive or for reasons known only to themselves'. 136 The prosecutor told the jury that she did not 'pretend for a moment to suggest why Mrs Poll was killed or why she was killed in the way she was but if [the jury were] asked to place much stock in the fact that [the appellant] apparently had no motive to kill her', the prosecutor asked the jury 'to reflect on what [the jury knew] about the unknowns of human behaviour'. The prosecution's position was that, even without the appellant having an apparent motive, there was no reasonable view of the evidence that was consistent with the appellant being innocent of the crime of murder. The prosecutor then elaborated: On what you know about [Mrs Poll's] life there is no obvious candidate with a motive to kill her, much less to kill her in this very violent manner. The weight of the evidence reveals [that Mrs Poll] was happily married, supported by her family and committed to her job. The point is not to say she could not possibly have had any enemies but rather to highlight the absence of anyone having an obvious motive to harm her. That is just another way of making the point that the absence of motive is not the be-all and end-all of determining a charge of murder because sometimes there is just no explicable reason for why things happen as they do. 137 The prosecutor submitted that the recorded telephone conversations between the appellant and members of his family revealed that the appellant knew of the newsagency and had been in the store. He appeared to know enough about the store to tell his former wife, Lucy Tilley, that the store was more like a stationery shop than a newsagency. The prosecutor then emphasised to the jury that when they were considering the prosecution's contention that the DNA analysis and 21 Emphasis added. -- 39 of 90 -- [2023] SASCA 80 The Court 36 likelihood ratios strongly supported the identification of the appellant as the source of the male blood at the crime scene, the jury should not look at the DNA evidence in 'complete isolation'. Rather, the jury should look at the DNA evidence 'within this broader fabric of [the appellant] having … other connections to the location'. Those connections included the appellant's mother, Ms Richardson, living in the vicinity of the store. The prosecutor also submitted that the relevant connections included M's evidence as to the conversation she had with the appellant in Warrnambool about the appellant having had 'an affair with an older married woman who worked in a shop and who was knifed to death'. The prosecutor reiterated that the prosecution's case was circumstantial in nature and consequently it was 'important to look', and the jury was 'entitled to look', at the combined effect of all of the evidence. The prosecutor added that, nevertheless, 'the DNA evidence has a particular importance in this case'. 138 The prosecutor repeated the substance of M's evidence as to her conversation with the appellant at Warrnambool and made detailed submissions about that evidence. In particular: (a) The prosecutor submitted that if the jury accepted M's evidence concerning the Warrnambool conversation and if the jury found that Mrs Poll was the married woman to whom the appellant referred, it would be open to the jury to conclude that the appellant was claiming to have some connection with Mrs Poll, that the appellant was speaking about the circumstances of Mrs Poll's killing and that the appellant was showing an interest in Mrs Poll and her murder. (b) The prosecutor reminded the jury of M's evidence as to the content of the Warrnambool conversation, including: (i) the appellant said the married woman was frightened that her husband would find out about their affair and that the husband 'did find out and [the husband] knifed her and they never got him for it'; (ii) the appellant said the woman worked in a shop and explained that he would go to the shop and one night she asked him to come back, and he did; (iii) the appellant said the affair did not last even a couple of months and at that point in the conversation the appellant was very sad and drawn and looked weary; (iv) M believed what the appellant told her that night; and (v) M rejected defence counsel's suggestion that nothing had been said in the conversation about the woman being knifed or killed. -- 40 of 90 -- [2023] SASCA 80 The Court 37 (c) The prosecutor submitted that the Warrnambool conversation was an 'inherently memorable conversation' for M and that M's memory of the conversation was vivid. (d) The prosecutor submitted that it was highly unlikely that, after carrying out internet searches about the appellant's arrest, M 'somehow reverse engineered a conversation about affairs and a married woman who worked in a shop who was knifed to death'. (e) The prosecutor acknowledged that there was no evidence in the trial or, according to Detective Huppatz, arising in the investigation, that Mrs Poll had been engaged in an extramarital affair. However, the prosecutor explained that the prosecution did not point to M's evidence as proof of an affair between the appellant and Mrs Poll. The prosecutor said that what was significant, if the jury accepted M's evidence, is that in the middle of 2019, some 26 years after Mrs Poll was killed, the appellant was talking about a married woman who worked in a shop, who was knifed to death and 'the culprit got away with it'22 (f) The prosecutor submitted that, even if 'the claimed affair is a complete embellishment', the appellant was claiming to have had an association with a married woman. The prosecutor contended that the features of the conversation could lead the jury to draw the inference that the appellant was speaking about Mrs Poll. The relevant features were that the appellant was talking about an older woman; the woman was married; she worked in a shop; he used to go into the shop; the woman asked him to come back one night; the woman was knifed; and the police 'never got the person for it'.23 The prosecutor submitted that the events of which the appellant spoke in the conversation were 'after Miffy, take that to be Myfwanny Young, which puts it in the ballpark of 1993, or at least thereabouts'. (g) The prosecutor acknowledged that there were points of difference between what the appellant said in the Warrnambool conversation and what the jury knew of Mrs Poll's life but, according to the prosecutor, 'the key features are so aligned that [the appellant] must have been talking on the topic of [Mrs Poll] and the circumstances of her killing'. The prosecutor suggested that 'the details of a married woman who worked in a shop being knifed to death, bring this matter that [the appellant] was talking about within a fairly narrow compass'. The prosecutor added that when the appellant 'talks about it being a shop he used to go into, the compass is even narrower'. 22 Emphasis added. 23 Emphasis added. -- 41 of 90 -- [2023] SASCA 80 The Court 38 (h) The prosecutor said that if the jury accepted that the appellant was 'talking on the topic of [Mrs Poll], then it is clear that in [the Warrnambool] conversation … he was claiming to have some connection to her'. The prosecutor then said that the Warrnambool conversation, if the jury accepted it, was 'capable of connecting [the appellant] to [Mrs Poll] through his own statements, statements which are completely separate to the forensic evidence at the crime scene'. (i) The prosecutor submitted that the appellant was saying to M, 'I knew this woman. She was knifed and I knew her'. The prosecutor then said that if the jury accepted that this is what the appellant was saying to M, namely 'that he knew this woman or had some connection to her, then, in the prosecutor's submission, [the jury] can look at the DNA results in that light'. (j) The prosecutor posed the question, 'what are the chances of a contamination event?' in relation to the DNA results. The prosecutor elaborated, specifically, '[a] mix up of samples, a mix up of tubes, or anything along those lines in relation to a crime scene that is not only nearby to [the appellant's] mother's house, not only frequented by him, but the scene of the killing of a woman who he talks about 26 years after the event?'. The prosecutor said that it would be 'a coincidence beyond comprehension that crime scene and/or laboratory error in relation to samples implicating [the appellant] took place in respect of a crime which he happens to speak about with a new girlfriend in another State all those years later'. (k) The prosecutor told the jury that the jury was 'entitled to look, and in the prosecution's submission [the jury] must look, at the evidence in its entirety'. The prosecutor then said '[t]he DNA results, in conjunction with the human blood testing and blood pattern analysis, provide sound evidence for a conclusion that [the appellant] bled in that shop' and that it was 'a shop he knew, in a suburb in which he had lived and to which he remained closely connected through his mother'. 139 The prosecutor made only a brief passing reference in her closing address to the conversation between M and the appellant at Yatala Labour Prison. The prosecutor merely said, in the course of recounting M's evidence as to the Warrnambool conversation, that M 'did not speak to [the appellant] about this topic again until she visited him in Yatala on 27 October 2019'. 140 The prosecutor did not refer in her closing address to any alleged inconsistencies between what the appellant told M (according to M) in the Warrnambool conversation and what the appellant told M (according to M) in the Yatala conversation. -- 42 of 90 -- [2023] SASCA 80 The Court 39 141 The prosecutor did not say to the jury in her closing address (or at any other stage of the trial) that the appellant had lied in the Warrnambool conversation or the Yatala conversation. Defence counsel's closing address at the trial 142 Defence counsel told the jury in her closing address that the jury had to be satisfied that the Warrnambool conversation was actually about Mrs Poll. The jury also had to be satisfied that M was not an honestly mistaken witness. 143 Defence counsel referred to M's evidence as to the content of the Warrnambool conversation and submitted: This was a conversation [in about July 2019] and lo and behold, after 26 years, a couple of months after this very conversation, a few months later, police come and talk to [the appellant]. You might think that's a very unusual coincidence. … So, six weeks into this relationship, in a conversation about affairs, [the appellant] is supposed to have mentioned this woman who later turns out to be highly relevant just a few months later and it's [Mrs Poll]. What a coincidence. Too big a coincidence. 144 Defence counsel noted the evidence of Mr Poll to the effect that there was 'no falling out or anything of that kind' between Mr and Mrs Poll. Defence counsel also noted the evidence of Mrs Taylor and what she had observed about the relationship between Mr and Mrs Poll. Defence counsel also noted Detective Huppatz's evidence that he could find no evidence of an affair by Mrs Poll. 145 Defence counsel then said that, somehow, '[the appellant] is the one person talking about an affair with [Mrs Poll]'. Defence counsel suggested that it was quite possible that M had 'got things mixed up'. 146 Next, defence counsel referred to 'the timing of this so-called alleged affair with [Mrs Poll]'. Defence counsel submitted that the timing of the affair that the appellant was talking about in the Warrnambool conversation was, in fact, 'after [Mrs Poll] is dead because it's after Miffy [that is, Myfwanny Young] and Miffy's evidence was that she was still in a relationship with [the appellant] at least in November of 1993'. 147 Defence counsel mentioned M's visit to Yatala Labour Prison in October 2019 and her evidence about the conversation she had with the appellant on that occasion. M gave evidence that the appellant said, 'I did not sleep with her'. According to M, the appellant then looked worried about what she was raising and wanted to know 'who have you told this to?'. Defence counsel submitted that the appellant's reaction was consistent with someone who was thinking, 'what she's saying is not right'. 148 Next, defence counsel referred to the recorded telephone conversations between the appellant and members of his family, including conversations on 30 December 2019 (after M's visit) in which the appellant said, 'I did not do this. I don't even know these people. I'm not guilty. It's not what you think.'. -- 43 of 90 -- [2023] SASCA 80 The Court 40 149 Defence counsel suggested that the jury might not be able to accept that M was necessarily correct in her evidence about the Warrnambool conversation. Defence counsel also said: Anyway, at the end of the day, you might think if [the appellant was] talking about an affair that took place after Mrs Poll's death, then it can't be an affair with Mrs Poll. 150 Defence counsel submitted that the jury could not accept the prosecutor's suggestion that M's evidence showed a connection between the appellant and Mrs Poll unless the jury accepted that M had 'got that conversation right'. Defence counsel added that the jury should take into account that there was 'no evidence of an affair' by Mrs Poll and that '[i]t just doesn't stack up'. 151 Defence counsel did not refer in her closing address to any alleged inconsistencies between what the appellant told M (according to M) in the Warrnambool conversation and what the appellant told M (according to M) in the Yatala conversation. Ground 3A – the admissibility of the evidence of M 152 The appellant complains that the trial Judge erred as a matter of law in admitting the evidence of M; or alternatively, erred in declining to exclude the evidence in the exercise of the Christie discretion. 24 153 As outlined above, the prosecution alleged that the Warrnambool conversation established a ‘connection’ between the appellant and Mrs Poll independent of the forensic evidence at the crime scene. The salient features of the appellant’s conversation included: (a) There was a married woman who was much older than him. (b) She worked in a shop which he used to go into and one night she asked him to come back, and he did. (c) They had sex. (d) It went on for several weeks. (e) The woman was frightened that her husband would find out. (f) The woman’s husband found out and knifed her and they never got him for it. 154 The prosecutor submitted that the appellant was referring to Mrs Poll by reason of the following details: Mrs Poll was a married woman; she worked in a shop which he used to go into; the forensic evidence suggested she died as a result of a knife attack; and the police never apprehended any person for the offence. It was also submitted that it was relevant that the appellant admitted in other recorded 24 See R v Christie [1914] AC 545. -- 44 of 90 -- [2023] SASCA 80 The Court 41 conversations that he had been into the newsagency, or ‘shop’, where Mrs Poll worked (but denied being present for, or having committed, the offence). The prosecutor put to the jury that it did not matter whether the appellant had in fact engaged in a sexual relationship with Mrs Poll or whether this was an ‘embellishment’; the relevance of the conversation was that it was capable of establishing a connection, or link, between the appellant and Mrs Poll, separate from the crime scene and blood and DNA deposition evidence; and the appellant was discussing, or claimed a connection with Mrs Poll 26 years after her death, and before he was made aware that he was a suspect in her murder, and at a time when there was no apparent reason to be discussing her. 155 Defence counsel objected to the admission of the Warrnambool conversation at trial. 156 The appellant contends that the evidence was wrongly admitted and resulted in a miscarriage of justice. He submits the conversation had limited probative force given those aspects which suggested it was not referable to Mrs Poll. Further, the appellant submits that the jury would need to first accept that the appellant had a sexual relationship with Mrs Poll for the evidence to have any relevance; a false connection could not, as a matter of logic, assist in resolving the issues at trial. Thus, the evidence carried with it an implied assertion that the appellant’s representation to M was true. That being so, the appellant contends that the impugned evidence was either inadmissible (as being not referable to Mrs Poll) or should have been excluded in the exercise of the Christie discretion as it was more prejudicial than probative (Ground 3A.1). 157 For the reasons which follow, we are satisfied the evidence was properly admitted. 158 The evidence derived from the appellant’s utterances of his connection with Mrs Poll at a time before he knew, or could have known, that he was suspected of her murder was considerably probative. It mattered not whether the appellant had in fact engaged in an affair with her; it was his claim of a connection to Mrs Poll some 26 years after her murder which was probative in establishing a link between her and the appellant, and that she was still on his mind, as a relevant piece of circumstantial evidence in proof of his guilt. 159 There was sufficient detail in the alleged narrative to link the Warrnambool conversation with Mrs Poll, namely: that she was an older woman who worked in a shop and was knifed to death, and the alleged offender (who the appellant claimed was her husband) was never apprehended. These are unusual matters which do not happen commonly or frequently in the experience of most people. 160 Against that, it is to be accepted that there was evidence adduced as part of the prosecution case that Mrs Poll was not having an extramarital affair; that her husband’s shoe impressions were inconsistent with the unidentified shoeprints at the crime scene; and the timing of the affair (as allegedly recounted by the -- 45 of 90 -- [2023] SASCA 80 The Court 42 appellant) would mean it occurred after the murder by reference to the timing of his relationship with Ms Myfwanny Young. 161 Notwithstanding that those matters were all relevant to the jury’s determination as to whether they accepted the Warrnambool conversation related to Mrs Poll, there was a sound basis for the jury to accept the veracity of M’s account of the conversation, and to accept that the appellant was referring to Mrs Poll. The jury were also properly instructed that it was open to them to accept some of the appellant’s assertions while rejecting others and to conclude that the appellant had a connection with Mrs Poll, even if they were not satisfied that the appellant had in fact had a sexual relationship with her. 162 If the jury accepted M’s account of the Warrnambool conversation and accepted that the appellant was referring to Mrs Poll, that was a piece of circumstantial evidence in support of the prosecution case as to the identity of the offender. The evidence did not go so far as to provide evidence of motive, but it did establish a connection between the appellant and Mrs Poll separate and distinct from the crime scene evidence. It had considerable probative value in proving that the appellant was the offender. 163 The prejudicial effect of the evidence was that the appellant allegedly had a sexual affair with a married woman, and there was potentially a risk that the evidence would be misused as providing a motive for the offence. However, any prejudice arising from that evidence was capable of being cured by directions (which were ultimately given by the trial Judge) and did not outweigh the probative force of the evidence. 164 We are satisfied the evidence was admissible and the trial Judge did not err in declining to exclude the evidence in the exercise of his discretion. 165 Under this ground of appeal, the appellant also makes the aligned complaint that the prosecutor, in her closing address, improperly urged the jury to use the evidence of M to prove both the chain of evidence of the crime scene samples and to exclude the risk of contamination, beyond reasonable doubt. 166 In her closing address, the prosecutor said: If you accept that Matthew Tilley was talking on the topic of Suzanne Poll, then it is clear that in that conversation in [M’s] bedroom he was claiming to have some connection to her. That conversation, if you accept it, is capable of connecting Matthew Tilley to Suzanne Poll through his own statements, statements which are completely separate to the forensic evidence at the crime scene. In the prosecution’s submission, what he was saying to [M] was ‘I knew this woman. She was knifed, and I knew her.’ If you accept that is what he was saying to [M], that he knew this woman or had some connection to her, then, in the prosecution’s submission, you can look at the DNA results in that light. What are the chances of a contamination event? A mix up of samples, a mix up of tubes, or anything along those lines in relation to a crime scene that is not only nearby to Matthew Tilley’s mother’s house, not only frequented by him, but the scene of the killing of a woman who he talks about 26 years after the event? It would be a coincidence beyond comprehension that -- 46 of 90 -- [2023] SASCA 80 The Court 43 crime scene and/or laboratory error in relation to samples implicating this accused to a place in respect of a crime which he happens to speak about with a new girlfriend in another State all those years later. Members of the jury, you are entitled to look, and in the prosecution’s submission you must look, at the evidence in its entirety. The DNA results, in conjunction with the human blood testing and blood pattern analysis provides sound evidence for a conclusion that the accused bled in that shop. It was a shop he knew, in a suburb in which he had lived and to which he remained closely connected through his mother. (emphasis added) 167 At trial, defence counsel advanced the argument on behalf of the appellant that the DNA results were not the consequence of him depositing blood in the course of, or in connection with, the stabbing of Mrs Poll, but rather, that it was the consequence of some contamination or error by police or FSSA handling and processing of the relevant inculpatory samples. 168 At the appeal hearing, the respondent accepted that the evidence of M, as to the Warrnambool conversation, could not directly disprove that there had been an error in the processing of the crime scene, or in the laboratory work, leading to contamination of the relevant crime scene samples. That is an appropriate concession. The accuracy and reliability of the blood and DNA deposition evidence stood to be assessed in isolation from the other circumstantial evidence. The other pieces of circumstantial evidence, including M’s evidence, could not assist in resolving challenges to the DNA evidence, nor could it exclude beyond reasonable doubt the risk of contamination of the crime scene samples. 169 As Perry J said in R v Smith:25 It is true that in evaluating circumstantial evidence one’s view as to the probative value of a particular item of circumstantial evidence which standing alone may not take the matter very far, may be substantially enhanced when it is considered in conjunction with another item of circumstantial evidence. But as to the DNA testing it was first necessary for the jury to resolve the question as to whether or not Ms Williams’ evidence or Dr Atchison’s evidence was to be preferred. In resolving the conflict between the testimony of those two witnesses no assistance could have been derived from any conclusion reached separately on a discreet [sic] body of evidence which went to the question of whether or not the appellant was the person responsible for the two other incidents. 170 The prosecutor urged the jury to look at the DNA results in light of the Warrnambool conversation, and the purported connection between the appellant and Mrs Poll, and suggested that in determining whether the blood and DNA deposition evidence was proven beyond reasonable doubt, and whether a contamination event was excluded beyond reasonable doubt, the jury could have 25 (1998) 71 SASR 543 at 559 per Perry J. See also R v IAS (2004) 89 SASR 159 at [104] per Besanko J; R v Karger (2002) 83 SASR 134. -- 47 of 90 -- [2023] SASCA 80 The Court 44 regard to other evidence in the case. That was an impermissible line of reasoning and should not have been advanced. 171 It was only if the jury was satisfied beyond reasonable doubt of the blood and DNA deposition evidence that they could then use the other pieces of circumstantial evidence (including the evidence of M) in proof of the offender’s identity as the appellant. 172 It is significant, however, that the comments made by the prosecutor and the approach she urged upon the jury were not adopted by the trial Judge in his summing up. His Honour gave comprehensive and appropriate directions about the proper use of the blood and DNA deposition evidence (discussed in relation to Ground 2) and as to the permissible and impermissible uses of the evidence of M (discussed in relation to Ground 3A). That being so, we do not consider that there has been any miscarriage of justice occasioned by the prosecutor’s impugned comments in her closing address. 173 We grant permission to appeal on Ground 3A but dismiss the appeal. Ground 3 - Directions as to M’s Evidence 174 The trial Judge commenced his directions by instructing the jury that they may wish to proceed by first considering whether M was an honest witness. His Honour then set out the detail of the Warrnambool conversation. His Honour referred to defence counsel’s submissions as to M’s level of intoxication before instructing the jury that alcohol may have adversely affected her ability to comprehend and recall the conversation, and that her recollection could also be affected by the effluxion of time. 175 The trial Judge then referred to, and commented in detail on, M’s evidence as to her conversation with the appellant at Warrnambool. 176 His Honour directed the jury that, if the jury accepted M’s evidence as to the Warrnambool conversation, the jury must not use the Warrnambool conversation in two ways, which his Honour then described. 177 First, the jury must not use the evidence of the Warrnambool conversation to find that what the appellant allegedly said in that conversation displayed 'some sort of knowledge that only the killer could have had'. Second, the jury must not use the evidence of the Warrnambool conversation to reason that the appellant was a person of bad character because he was prepared to encourage adultery by a married woman. 178 The trial Judge directed the jury that 'the only way in which you can use the Warrnambool conversation against [the appellant] is as follows': [I]f you accept that the Warrnambool conversation occurred as [M] testified then there is evidence which, when taken together with other circumstantial evidence before you, could -- 48 of 90 -- [2023] SASCA 80 The Court 45 found the inference that [the appellant] was then in his own mind referring to Mrs Poll when he said these things even though, of course, he did not use her name. 179 His Honour then elaborated: [Y]ou can take into account the Yatala prison calls that I will come to in a moment where [the appellant] said most definitely that he had been in that very shop more than once. So again, you have got evidence that he was acquainted with that shop, he had been in there more than once and so if you add those things to the Warrnambool conversation, if you accept it as [M] said it happened, you would be able to, if you so find, draw an inference that [the appellant] was referring to Mrs Poll during the Warrnambool conversation even though he did not use her name. If you draw that inference, then it is open to draw the further inference that he did have some sort of connection with, or interest in, Mrs Poll in some way or, indeed, some interest in her death in some way. I mean, as men and women of the world again you will appreciate that if he did say the things that [M] says that he did say, and he was then referring to Mrs Poll in his own mind, it does not necessarily follow that what he said about actually having sexual intercourse with her was true. A claim that he had had sexual intercourse with her may have been false. I mean, people tell falsities about whether they have or have not had sexual intercourse with a particular person on a fairly constant basis. So that aspect of what he said may be untrue. But, if untrue, the inference may still remain that he had an interest in her and the fact that he was prepared to claim that he had had intercourse with her may display the holding of such an interest, talking about a person sexually. 180 Next, the trial Judge summarised M's evidence about her visit to Yatala Labour Prison and the conversation she had with the appellant. His Honour then summarised the recorded telephone conversations between the appellant and members of his family. 181 His Honour then gave the jury directions about how the jury should proceed if they were to conclude that the appellant told a lie during the Warrnambool conversation, or the Yatala conversation with M or during any of the recorded telephone conversations between the appellant and members of his family. His Honour said: For example, if you were to accept the evidence of [M] concerning both the Warrnambool and Yatala conversations and you found that [the appellant] in the Warrnambool conversations had been referring to Mrs Poll and the described sexual activity, then you would be in a position of finding that [the appellant] has made two statements inconsistent with each other. First, the statement in Warrnambool that he had sexual intercourse with Mrs Poll. And then the later statement during the Yatala conversation that he did not have sexual intercourse with Mrs Poll. It would seem that both of those statements, those opposite statements, cannot be true. So I just want to caution you not to make too much of a finding of the telling of a lie if you so found. If you were to come to a conclusion that [the appellant] told a lie in any of the conversations led in evidence before you, it is for you, it is for you to say what conclusion you come to concerning such a lie. I will give you this general direction, you should make up your own mind whether [the appellant] told a lie and if he did whether he did so deliberately. It is for you to decide what significance a lie may have in relation to the credibility of [the appellant] and the issues in the case. I warn you, do not follow a process of reasoning to the effect that just -- 49 of 90 -- [2023] SASCA 80 The Court 46 because a person is shown to have told a lie about something that is positive evidence of his guilt of the offence charged against him. I emphasise that even if you made a finding of lying by [the appellant], nevertheless the onus remains at all times on the prosecution to satisfy you beyond reasonable doubt of each of the elements of the charge of murder. 182 The trial Judge then adjourned the trial until the following morning. 183 The following morning defence counsel raised with his Honour, in the absence of the jury, the directions his Honour had given about lies. Defence counsel said that she was 'a little uncertain' about the permissible, as opposed to the impermissible, use of those lies. 184 The following exchange occurred between the trial Judge and defence counsel: HIS HONOUR: … I don't know if you recognise it or not, but I gave the direction straight out of the High Court specimen direction as to what should be given these days. I did so on the basis that one outcome was that if the jury wholly accept the evidence of [M] then they are faced with the situation where they have got two opposing things said on two different occasions, if you will. Therefore, they could find a lie and therefore it seemed to me best to give the antiseptic direction recommended by the High Court. [DEFENCE COUNSEL]: Thank you, and I do recognise that your Honour has given them some direction about how not to use the lie. I suppose that leaves an area, though, where they might think there is some other way to use a lie in a case where - HIS HONOUR: Well no. It's not the way to use lies. I haven't directed as to lies evincing a consciousness of guilt or anything else, far from it. What I have directed on is the way in which you can and cannot use the Warrnambool conversation and that wasn't in any way or medium of finding lies, that was on a basis that you accept what [M] said as to the conversation between her and [the appellant] on that occasion, how you can use it or not use it. When you, however, go further and you come to, for example, the Yatala conversation and then you have the possibility of a lie sort of emerging there I haven't in any way suggested how you can use and not use lies. I've simply said the way that you would approach a lie, if you found it to be established, was this, and then given the verbatim High Court direction. [DEFENCE COUNSEL]: May it please the court. -- 50 of 90 -- [2023] SASCA 80 The Court 47 185 The 'High Court specimen direction' mentioned by his Honour was the direction formulated by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen (‘Zoneff’).26 186 The trial Judge directed the jury that unless the prosecution proved the blood and DNA deposition evidence beyond reasonable doubt, the reasoning relied upon by the prosecution must fail and the jury should return a verdict of not guilty. 187 His Honour also directed the jury that even if the prosecution proved the blood and DNA deposition evidence beyond reasonable doubt, it would be necessary for the jury to consider the evidence of the likelihood ratios in combination with other prosecution evidence which the jury decided was established 'when ultimately considering whether the prosecution has proven [the appellant's] guilt beyond reasonable doubt'. Ground 3.1 - No direction as to the exculpatory use of the statement 188 Under the first limb of Ground 3, the appellant complains that the trial Judge erred by failing to direct the jury as to the exculpatory use of the Warrnambool conversation. In so contending, the appellant relies on the authorities of Castle v The Queen; Bucca v The Queen27 (‘Castle’) and R v Golubovic28 (‘Golubovic’). 189 In Castle, a wholly exculpatory statement was erroneously characterised as an admission in circumstances where it was relevant to the defence case at trial that the accused had not shot the deceased. This Court found there was an error resulting in a miscarriage of justice but applied the proviso. The High Court held that the error in characterising the exculpatory statement as an admission, when it was in fact an exculpatory statement, gave rise to a perceptible risk of miscarriage of justice and the proviso could not be applied despite the strength of the prosecution case. 190 The present case can be distinguished on its facts. The appellant’s complaint is that the trial Judge did not direct the jury as to the use it could make of the exculpatory part of the appellant’s statement. It was not, however, the appellant’s complaint that it was erroneously left as an admission. 191 In Golubovic, the appellant was charged with five counts of possessing child exploitation material in relation to files found on a computer at his house. The trial Judge gave no directions to the jury on the permissible and impermissible uses of his denials made in a police interview. In allowing the appeal, Blue J held that it was impossible to know what weight the jury may have given to the evidence had a direction been given as to the exculpatory use of the denials.29 Justices Blue and Peek, in separate judgments, placed considerable weight on the fact that the 26 (2000) 200 CLR 234 at [23] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 27 (2016) 259 CLR 449. 28 [2016] SASCFC 144. 29 R v Golubovic [2016] SASCFC 144 at [126] per Blue J. -- 51 of 90 -- [2023] SASCA 80 The Court 48 exculpatory statements were detailed and consistent with defence arguments put at trial. 192 In the present matter, the appellant contends that embedded in the Warrnambool conversation was an exculpatory statement to the effect that Mrs Poll’s husband had killed her, which gave rise to a hypothesis consistent with innocence; that is, a person other than the appellant was responsible for her death. That being so, the appellant submits that the absence of a direction as to the exculpatory use of the evidence resulted in a miscarriage of justice. 193 It is to be accepted that if the jury was satisfied of the truthfulness and accuracy of the whole of M’s evidence, and that the appellant had been referring to Mrs Poll, then in that conversation was an exculpatory statement that Mrs Poll’s husband had ‘knifed’ her. However, the directions the trial Judge was required to give as to the exculpatory statement were, to some extent, informed by the way in which the trial was conducted by defence counsel. Further, the nature of the statement was such that whilst attributing responsibility to another, the appellant did not identify any basis for knowing about the suggested involvement of Mrs Poll’s husband, apart from what it was Mrs Poll had apparently told him. 194 The thrust of defence counsel’s submissions at trial was that the Warrnambool conversation related to another woman. Defence counsel did not expressly place any reliance on the appellant’s alleged assertion that Mrs Poll’s husband killed her. As outlined above, Mrs Poll’s husband, Darryl Poll, gave evidence that his role was confined to finding Mrs Poll’s body after she did not return home as expected. That evidence was never challenged. Indeed, when cross-examining Mr Poll, defence counsel adduced evidence from him that he had a good marriage to Mrs Poll, and he was unaware of any extramarital affair. Defence counsel, in her closing address, also relied on the absence of any evidence of an affair to suggest the conversation was not referable to Mrs Poll. 195 When directing the jury as to the permissible uses of the Warrnambool conversation, the trial Judge did not specifically refer to the exculpatory use of the evidence. However, earlier in his summing up, his Honour expressly instructed the jury that: … if at the end of the day you consider there remains, after looking closely at all of the evidence, there remains the reasonable possibility that someone other than the accused murdered Mrs Poll then, of course, you would have to acquit the accused. 196 This direction reflected the true effect and potential exculpatory use of the evidence. 197 Earlier in his summing up, the trial Judge also referred to the appellant’s denials in recorded telephone calls and directed the jury as to their exculpatory use. His Honour instructed the jury that they ‘… can take into account those denials in his favour should you wish to do so. It will be a matter for you as to how much weight you place on those denials, entirely a matter for you.’ -- 52 of 90 -- [2023] SASCA 80 The Court 49 198 Moreover, later in his summing up, the trial Judge referred to the two groups of evidence containing exculpatory statements, namely M’s account of the Warrnambool and Yatala conversations, and the appellant’s denials during recorded telephone calls, and again gave directions as to their exculpatory use. His Honour said: In terms of both of these groups that I have just outlined, both of the groups of evidence the prosecution chose to tender the evidence about conversations and points to matters therein that are said that it contends advance its case or are incriminating. That is all well, but I direct you that you can use all or any parts of that evidence, both for and against the accused as you see fit. You can have regard to statements and any of those conversations, for example, that you think are, or may be, exculpatory in nature, they may help the defendant. The mere fact that the prosecution has tendered this evidence does not mean that you do not look at all of it and it does mean that you can use all or any parts of the evidence both for and against the accused as you see fit. You will remember in parallel here really my directions concerning witnesses, that you can accept part of a witness’s evidence but not accept other parts. So it is in the present situation of these statements or statements here being made by the accused. You can place different weight on different parts of what the accused says in such circumstances. You may accept some comments or statements he makes and reject others. You may also bear in mind, as you look at this evidence, that exculpatory statements made by the accused in such conversations were not made on oath and have not been tested by cross-examination in court; that is something you can consider when deciding what weight to give to what parts of these conversations. 199 Whilst the trial Judge did not expressly direct the jury as to the exculpatory use of the appellant’s purported assertions during the Warrnambool conversation, that use would have been obvious to the jury. Further, the jury were expressly directed at other parts of the summing up that they were required to be satisfied beyond reasonable doubt of the identity of the offender and exclude as a reasonable possibility that another person had murdered Mrs Poll, which was the true effect of the exculpatory statement. That being so, and taking into account that the jury were also directed that they could have regard to the appellant’s denials of the offending in the recorded telephone conversations, we are satisfied that the absence of a specific direction as to the exculpatory use of the appellant’s assertion embedded in the Warrnambool conversation, that Mrs Poll’s husband ‘knifed’ her, did not amount to a miscarriage of justice. Ground 3.2 – a direction that the jury need to make a finding beyond reasonable doubt that the Warrnambool conversation was referrable to Mrs Poll 200 The appellant also complains that the trial Judge erred in failing to direct the jury of the need to find proven beyond reasonable doubt that the Warrnambool conversation was referable to Mrs Poll before they could use any part of it as evidence of a lie. 201 The trial Judge in his summing up directed the jury as to how they should proceed should they conclude that the appellant told a lie in either the Warrnambool conversation, or during the Yatala conversation or during any of the -- 53 of 90 -- [2023] SASCA 80 The Court 50 recorded telephone conversations. The trial Judge identified, as an example, that if the jury was satisfied that the appellant was referring to Mrs Poll in the Warrnambool conversation, there was an inconsistency between his statement during that conversation that he had sexual intercourse with Mrs Poll, and his later statement during the Yatala conversation that he did not have sexual intercourse with her. That left open the possibility that he had lied during one of those conversations. 202 The prosecutor submitted to the jury that the Warrnambool conversation was referable to Mrs Poll but contended that his statement that he had engaged in sexual activity with her was an ‘embellishment’. The prosecution did not contend at trial, or on appeal, that the purported ‘embellishment’ evinced a consciousness of guilt, nor was it submitted by the prosecutor that any such embellishment undermined the appellant’s credibility or detracted from his denials. 203 Defence counsel submitted to the jury that, the appellant did not lie; in the Warrnambool conversation he spoke of an affair with an unnamed woman (not Mrs Poll) and in the Yatala conversation he denied having had a sexual relationship with Mrs Poll. Thus, there was no inconsistency between the conversations and no basis for the jury to find the appellant had told a lie. 204 It was common ground between the parties that for the jury to be satisfied that the appellant had lied, they would first need to accept that the Warrnambool conversation related to Mrs Poll. The trial Judge directed the jury in those terms. The appellant contends, however, that the trial Judge was required to go further and instruct the jury that they must first be satisfied beyond reasonable doubt that the appellant was referring to Mrs Poll before they could use that as evidence of a lie. 205 For the reasons which follow, we are satisfied that the jury were not required to be satisfied that the appellant was referring to Mrs Poll in the Warrnambool conversation to a standard of proof beyond reasonable doubt before they could use the evidence to find that he had lied. It is true that if the jury were not satisfied that the Warrnambool conversation was referable to Mrs Poll, it could not be used as a basis to find the appellant had lied, or as part of the prosecution case at all. The jury were directed in those terms. Whilst the jury would need to engage in sequential reasoning to find the appellant had lied, it does not follow that the Warrnambool conversation was an indispensable intermediate link in the chain of reasoning towards an inference of guilt such that it needed to be proven beyond reasonable doubt. The prosecution case did not rest on proof of the appellant’s claimed connection with Mrs Poll made during the Warrnambool conversation, nor on any purported lie told by the appellant. The appellant’s assertions in the Warrnambool conversation were but one piece of circumstantial evidence concerning a connection between the appellant and Mrs Poll in proof of the identity of the offender as the appellant. It was not an indispensable link in proof of the offence of murder. There was no requirement for the trial Judge to instruct the jury in the terms contended by the appellant. -- 54 of 90 -- [2023] SASCA 80 The Court 51 Ground 3.3 – the lies direction was inadequate 206 As to the third limb of Ground 3, senior counsel for the appellant in her written submissions contended that the trial Judge’s directions on lies were 'overly general', namely that it was for the jury to determine the significance of any lies in relation to the credit of the appellant and the issues in the case. It was submitted that his Honour's 'generalised' directions, which were not linked to the facts in issue, gave rise to a risk of misuse by the jury. 207 Evidence which suggests a consciousness of guilt by an accused is admissible as an implied admission against interest. If the prosecution relies upon such evidence in a criminal trial, it is open to the accused to offer some explanation, consistent with innocence, which may nullify its force. Various categories of evidence suggesting a consciousness of guilt have been recognised in the case law.30 208 In Edwards v The Queen,31 (‘Edwards’) the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth. 209 An Edwards direction is ordinarily essential if the Crown relies on a lie told by the accused as evidence of his or her guilt. As Lord Devlin observed in Broadhurst v The Queen,32 there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. 210 If an Edwards direction is required, the direction must ordinarily encompass the following:33 (a) the lie must be precisely identified; (b) the lie will not be evidence against the accused unless the lie was deliberate; (c) there are many reasons why people tell lies, apart from the realisation of guilt; 30 See, for example, Cooper v The Queen (2012) 87 ALJR 32 at [86]-[87] per Heydon J. 31 (1993) 178 CLR 193. 32 [1964] AC 441 at 457 per Lord Devlin. 33 Edwards v The Queen (1993) 178 CLR 193 at 209-211 per Deane, Dawson and Gaudron JJ. See also Osland v The Queen (1998) 197 CLR 316 at [42] per Gaudron & Gummow JJ. -- 55 of 90 -- [2023] SASCA 80 The Court 52 (d) the lie cannot be used as evidence against the accused if the jury accepts an explanation for the lie that is consistent with innocence; (e) the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and (f) the facts, events and circumstances relied upon by the Crown to indicate that the lie constitutes an admission against interest must be precisely identified. 211 An accused's post-offence incriminating conduct, including lies which the prosecution alleges constitute implied admissions against interest, is circumstantial evidence. A jury may accept and act upon evidence of the accused's post-offence conduct, including lies, if the conduct constitutes an implied admission against interest, without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends.34 212 An accused's post-offence incriminating conduct, including lies which the prosecution alleges constitute implied admissions against interest, must not be considered on a piecemeal basis, but must be evaluated as part of the totality of the evidence.35 213 In Zoneff, the appellant was convicted, after a trial in which he was self-represented, of six of the seven charged offences. He gave evidence at the trial in which he denied the alleged offending. The prosecutor elected not to address the jury. During cross-examination, the prosecutor asked a number of questions in response to which the appellant admitted having lied in his dealings with the complainants. The prosecutor also put to the appellant on a number of occasions that he was telling lies. The prosecutor did not present the case on the basis that, if the jury found that the appellant had told lies, the prosecution relied on the lies as evidence of the appellant's guilt. The trial Judge directed the jury about the significance of any lies which the jury found the appellant had told. The Judge referred to the possibility that any lies the appellant had told may indicate a consciousness of guilt. The Judge reminded the jury, however, that there were many reasons why people lie and some of those reasons were not consistent with guilt. 214 A majority of the High Court in Zoneff allowed the appeal, set aside the judgments of conviction and ordered a new trial. Their Honours held that the trial 34 Edwards v The Queen (1993) 178 CLR 193 at 210 per Deane, Dawson and Gaudron JJ. 35 R v Hillier (2007) 228 CLR 618 at [46]-[48] per Gummow, Hayne & Crennan JJ. -- 56 of 90 -- [2023] SASCA 80 The Court 53 Judge, having raised the topic of lies, largely left the topic 'up in the air'.36 There was 'a serious danger that the jury might, themselves, seek to identify relevant lies and then draw adverse conclusions from them in an uninformed and impermissible manner'.37 The Judge's directions 'fell far short of those mandated' in Edwards.38 215 Chief Justice Gleeson, Gaudron, Gummow and Callinan JJ observed that for the trial Judge to raise, on his own initiative and in the manner he did, 'the possibility of a consciousness of guilt without any identification of relevant answers, and without any further explanation, was to invite the jury to infer that the alleged lies might be indicative of a consciousness of guilt', a position that was not advanced by the prosecution.39 216 Their Honours said that the case (Zoneff) was an unusual one.40 The prosecutor did not at the trial (or on appeal) suggest that any answer given by the appellant in cross-examination was a lie told out of a consciousness of guilt.41 Consequently, their Honours were of the opinion that it was unnecessary and undesirable that an Edwards direction be given in the circumstances of the case.42 217 Their Honours noted that the trial Judge was apparently concerned that, having regard to some of the prosecutor's cross-examination of the appellant, there was a real risk that the jury might use impermissible reasoning in relation to the alleged lies.43 Their Honours then said:44 A direction which might have appropriately been given and which would have allayed any concerns which the trial Judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: “You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.” A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has 36 Zoneff v The Queen (2000) 200 CLR 234 at [13] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 37 Zoneff v The Queen (2000) 200 CLR 234 at [13] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 38 Zoneff v The Queen (2000) 200 CLR 234 at [13] per Gleeson CJ, Gaudron, Gummow and Callinan JJ, citing Edwards v The Queen (1993) 178 CLR 193. 39 Zoneff v The Queen (2000) 200 CLR 234 at [25] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 40 Zoneff v The Queen (2000) 200 CLR 234 at [18] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 41 Zoneff v The Queen (2000) 200 CLR 234 at [18]-[19] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 42 Zoneff v The Queen (2000) 200 CLR 234 at [20] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 43 Zoneff v The Queen (2000) 200 CLR 234 at [22] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 44 Zoneff v The Queen (2000) 200 CLR 234 at [23]-[24] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. -- 57 of 90 -- [2023] SASCA 80 The Court 54 not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence. 218 It is of significance, in our opinion, that the terms of the direction set out by their Honours in Zoneff was said to be a direction which might have 'appropriately been given' in the 'unusual' circumstances of Zoneff and that the terms of the direction 'may well be adaptable to other cases' in which there is a risk of a misunderstanding about the significance of possible lies.45 219 In Osland v The Queen,46 (‘Osland’) the appellant and her son were tried jointly with the murder of a man who was the appellant's husband and her son's stepfather. The appellant and her son gave evidence. Neither disputed that they had killed the deceased. Each of them relied on provocation and self-defence. Both gave evidence that the deceased had behaved violently over many years and that the violence had increased in the days before his death. The son adduced evidence that, on the evening of the killing, the deceased had threatened to kill him. The appellant adduced expert evidence of 'battered woman syndrome'. The jury convicted the appellant of murder but was unable to reach a verdict in respect of the son. Later, the son was retried and acquitted. In the High Court, a majority (McHugh, Kirby and Callinan JJ; Gaudron and Gummow JJ dissenting) held that the appellant's conviction was not inconsistent with the jury's failure to reach a verdict in respect of the son. All members of the High Court agreed that the appellant's appeal must be dismissed, except for the issue of inconsistency. 220 The appellant in Osland engaged in deceptive conduct to conceal the deceased's death and give the impression that he had merely disappeared. The trial Judge did not direct the jury that it might treat this conduct as evidence of the appellant's guilt. Consequently, an Edwards direction was not given. 221 Justices Gaudron and Gummow were of the view that, although the jury was not directed that the appellant's lies might be evidence of her consciousness of guilt, 'there was a real risk that [the jury] might reason that, because she lied about her husband's disappearance, she must have known he had been the victim of premeditated murder'.47 Their Honours observed that the prosecution had 'suggested as much' by inviting the jury to find that the appellant's conduct was not that 'of a person who had killed somebody with lawful justification or excuse'.48 222 Justices Gaudron and Gummow then said:49 Where, as here, there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question. And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards v The Queen. If not, it should be 45 Zoneff v The Queen (2000) 200 CLR 234 at [23] per Gleeson CJ, Gaudron, Gummow and Callinan JJ (emphasis added). 46 (1998) 197 CLR 316. 47 Osland v The Queen (1998) 197 CLR 316 at [43] per Gaudron and Gummow JJ. 48 Osland v The Queen (1998) 197 CLR 316 at [43] per Gaudron and Gummow JJ. 49 Osland v The Queen (1998) 197 CLR 316 at [44] per Gaudron and Gummow JJ. -- 58 of 90 -- [2023] SASCA 80 The Court 55 instructed that the evidence is relevant only to the credit of the accused. Only by adopting that course can a trial judge guard against “a perceptible risk of injustice”. (citations omitted) 223 In Dhanhoa v The Queen,50 (‘Dhanhoa’) the appellant was convicted after trial of robbery in company with wounding, and kidnapping. On 27 September 1999, police interviewed the appellant in connection with the alleged offending. Later, the appellant was charged. The trial began on 1 May 2000. The appellant gave evidence at the trial. In the prosecutor's closing address, the prosecutor referred to differences between what the appellant had told police on 27 September 1999 and what the appellant had said in evidence at the trial. The prosecutor did not submit that what the appellant had said to police constituted lies indicating a consciousness of guilt. The trial Judge did not raise that possibility in his summing up. An Edwards direction was not sought or given. 224 A majority of the High Court in Dhanhoa dismissed the appeal. 225 Chief Justice Gleeson and Hayne J said:51 It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross- examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case. (citations omitted) 226 Justices McHugh and Gummow noted that, in his summing up, the trial Judge directed the jury:52 “The Crown says that … you will remember what the accused said when he was spoken to by the police officers at the time of his arrest and compare that to what he says to you now remembering that he received the police brief in this matter in February.” 227 Their Honours also noted that the judge then said:53 All those matters are part of the Crown case and it is for you to determine whether there is any relevance in that or whether there is not. It is entirely a matter for you. 228 Justices McHugh and Gummow were of the opinion that, but for that last statement, 'there would be no arguable ground for upholding the contention that 50 (2003) 217 CLR 1. 51 Dhanhoa v The Queen (2003) 217 CLR 1 at [34] per Gleeson CJ and Hayne J. 52 Dhanhoa v The Queen (2003) 217 CLR 1 at [56] per McHugh and Gummow JJ. 53 Dhanhoa v The Queen (2003) 217 CLR 1 at [56] per McHugh and Gummow JJ. -- 59 of 90 -- [2023] SASCA 80 The Court 56 the trial Judge should have directed the jury concerning the effect of lies if they thought Dhanhoa had lied to the police'.54 Their Honours elaborated:55 If the jury found that Dhanhoa had lied to the police, they were entitled to infer that his evidence lacked credibility. But we think that, if the Crown had asked for a direction, the jury were also entitled to conclude that he had lied because he knew that the victim had been assaulted, robbed and detained. That is to say, the jury were entitled to think that he had lied because he was conscious that he was guilty of participating in the crimes and could give no innocent explanation for his presence at the flat if he had admitted that he was there. But the Crown made no attempt to run a case of consciousness of guilt. At no stage of Dhanhoa's cross-examination did the prosecutor expressly suggest to him that he had lied to the police because he had a consciousness of guilt. And because that was so, the trial Judge did not direct the jury that, if they thought he had lied to the police, they could use the lie as evidencing a consciousness of guilt on his part. But the trial Judge did direct the jury that various matters — one of which was the difference between what the accused told the jury and what he told the police — was “part of the Crown case and it is for you to determine whether there is any relevance in that”. It is possible, therefore, that the jury may have reasoned that the accused was guilty because he had lied to the police. It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused's out-of-court statement is a lie. But in this case it would have been better if the trial Judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused. Given the way that the Crown conducted its case, it would have been better if the trial Judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility. (citations omitted) 229 Their Honours said that it was insufficient to establish a miscarriage of justice merely to show that 'it would have been better if the trial Judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police'.56 It was necessary, to succeed in the appeal, that the appellant establish that 'it is a reasonable possibility' that the trial Judge's failure to direct the jury 'may have affected the verdict'.57 Their Honours referred to Simic v The Queen58 and then said:59 Given the way that the prosecution conducted its case, we think that there is only a very slender possibility that the jury would have considered that his statement to the police indicated a consciousness of guilt. The jury would have done so only if, despite the way the Crown conducted its case, the jurors decided to add consciousness of guilt to the process of reasoning on which the Crown relied. It is true that the trial Judge told the jury that it was a matter for them to determine whether there was any relevance in the claimed inconsistency. But that was not an invitation to use consciousness of guilt reasoning although it is, of course, possible the jury decided to use it. But even if the jury decided to 54 Dhanhoa v The Queen (2003) 217 CLR 1 at [57] per McHugh and Gummow JJ. 55 Dhanhoa v The Queen (2003) 217 CLR 1 at [58]-[59] per McHugh and Gummow JJ (emphasis added). 56 Dhanhoa v The Queen (2003) 217 CLR 1 at [60] per McHugh and Gummow JJ. 57 Dhanhoa v The Queen (2003) 217 CLR 1 at [60] per McHugh and Gummow JJ (emphasis original). 58 (1980) 144 CLR 319. 59 Dhanhoa v The Queen (2003) 217 CLR 1 at [61] per McHugh and Gummow JJ. -- 60 of 90 -- [2023] SASCA 80 The Court 57 examine the accused's answers to the police as indicating a consciousness of guilt, to succeed in this appeal Dhanhoa must show a reasonable possibility that they convicted him because they took his statements as evidencing that consciousness. 230 Justices McHugh and Gummow concluded that there was no reasonable possibility that the verdict of guilty would have been different if the trial Judge had given a direction concerning lies.60 Their Honours added that an Edwards direction, if given, 'might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue'.61 231 In the present case, the out-of-court statements allegedly made by the appellant to M in the Warrnambool conversation and the Yatala conversation were admissible at the trial because her evidence of the conversations included alleged statements by the appellant which, on the prosecution's case, were admissions against interest. M's evidence as to the appellant's alleged out-of-court statements became evidence of the facts in issue whether the alleged statements by the appellant were inculpatory or exculpatory.62 232 In addition to the possible lies identified by the trial Judge (that is, the appellant’s claim during the Warrnambool conversation that he had engaged in sexual activity with Mrs Poll, or alternatively, his denial in the Yatala conversation of having had a sexual relationship with Mrs Poll), we consider that there was also a basis in M's evidence for concluding that the appellant may have told a lie during the Warrnambool conversation when he said that the married woman's husband had found out about the affair and knifed her. 233 In particular, if the jury found that the appellant's statement in the Warrnambool conversation that he had previously had an affair with a married woman was true and if the jury accepted the prosecution's contention that the married woman was Mrs Poll and if the jury accepted (consistently with the prosecution case and the appellant's case) that Mr Poll was not responsible for Mrs Poll's death, then the appellant may have lied when he said in the Warrnambool conversation that the married woman's husband found out about the affair and knifed her. 234 As to the possible lies identified, the prosecution's position at the trial was as follows: (a) The prosecutor did not refer in her opening address to M's anticipated evidence as to the Warrnambool conversation or the Yatala conversation. 60 Dhanhoa v The Queen (2003) 217 CLR 1 at [64] per McHugh and Gummow JJ. 61 Dhanhoa v The Queen (2003) 217 CLR 1 at [64] per McHugh and Gummow JJ. 62 See, generally, R v Yusuf (2005) 11 VR 492 at [19] per Winneke P (with whom Charles and Chernov JJA agreed). -- 61 of 90 -- [2023] SASCA 80 The Court 58 (b) The prosecutor did not assert in her opening address that the appellant had told or may have told any lie. (c) The prosecutor adduced evidence from Mr Poll to the effect that, from Mr Poll's perspective, his marriage to Mrs Poll was a 'happy one'. (d) The prosecutor adduced evidence from Mrs Taylor to the effect that she had observed the relationship between Mr and Mrs Poll, and they were 'happy' and 'got on well together'. (e) The prosecutor said in her closing address that it was natural to think that 'someone with a great deal of personal hatred for [Mrs Poll] must have committed this crime'. However, the prosecutor added that she did not 'pretend for a moment to suggest why Mrs Poll was killed or why she was killed in the way she was', but the jury should not place much weight on the fact that the appellant apparently had no motive to kill her. (f) The prosecutor submitted in her closing address that the weight of the evidence revealed that Mrs Poll was happily married and there was an absence of evidence of anyone having an obvious motive to harm her. (g) The prosecutor submitted in her closing address that if the jury accepted M's evidence concerning the Warrnambool conversation and if the jury found that Mrs Poll was the married woman to whom the appellant referred, then it would be open to the jury to conclude that the appellant was claiming to have some connection with Mrs Poll, that the appellant was speaking about the circumstances of Mrs Poll's killing and that the appellant was showing an interest in Mrs Poll and her murder. (h) The prosecutor said in her closing address that the prosecution did not rely upon M's evidence as proof of an affair between the appellant and Mrs Poll. The prosecutor explained that what was significant, if the jury accepted M's evidence, was that in the middle of 2019, some 26 years after Mrs Poll was killed, the appellant was talking about a married woman who worked in a shop, who was knifed to death and 'the culprit [got] away with it'.63 (i) The prosecutor submitted in her closing address that, even if 'the claimed affair is a complete embellishment', the appellant was claiming to have an association with a married woman and there were features of the conversation that could lead the jury to draw the inference that the appellant was speaking about Mrs Poll. Those features were that the appellant was talking about an older woman; the woman was married; she worked in a shop; he used to go into the shop; the woman asked him 63 Emphasis added. -- 62 of 90 -- [2023] SASCA 80 The Court 59 to come back one night; the woman was knifed; and the police 'never got the person responsible for it'.64 (j) According to the prosecutor in her closing address, 'the key features are so aligned that [the appellant] must have been talking [in the Warrnambool conversation] on the topic of [Mrs Poll] and the circumstances of her killing'. The prosecutor suggested that 'the details of a married woman who worked in a shop being knifed to death, bring this matter that [the appellant] was talking about within a fairly narrow compass' and when the appellant 'talks about it being a shop he used to go into, the compass is even narrower'. (k) The prosecutor submitted in her closing address that if the jury accepted that the appellant told M, 'I knew this woman. She was knifed and I knew her', then the jury '[could] look at the DNA results in that light'. The prosecutor elaborated that it would be 'a coincidence beyond comprehension that crime scene and/or laboratory error in relation to samples implicating [the appellant] took place in respect of a crime which he happens to speak about with a new girlfriend in another State all those years later'. (l) The prosecutor made only a brief passing reference in her closing address to the Yatala conversation. (m) The prosecutor did not say to the jury in her closing address (or at any other stage of the trial) that the appellant had lied in the Warrnambool conversation or the Yatala conversation. 235 As to the possible lies identified, the appellant's position at trial was as follows: (a) Defence counsel did not refer in her opening statement to the Warrnambool conversation or the Yatala conversation. (b) Defence counsel did not refer in her opening statement to any alleged lies the appellant had told or may have told. (c) Defence counsel adduced evidence from Mr Poll to the effect that he had a 'good marriage' with Mrs Poll, that he was not aware of any affair by either of them and that he and Mrs Poll had not had any 'major falling-out'. (d) Defence counsel put to M in cross-examination that the appellant did not mention in the Warrnambool conversation anything about a woman being 'knifed to death or knifed', a proposition which M rejected. 64 Emphasis added. -- 63 of 90 -- [2023] SASCA 80 The Court 60 (e) Defence counsel did not cross-examine Mrs Taylor. (f) Defence counsel adduced evidence from Detective Huppatz that there was no evidence that he could find 'that there was ever any suggestion that [Mrs Poll] was having an affair or being unfaithful to her husband'. (g) Defence counsel submitted in her closing address, in essence, that the effect of the evidence of Mr Poll, Mrs Taylor and Detective Huppatz was that Mrs Poll was happy in her marriage and there was no basis for thinking that she may have had an affair. Defence counsel suggested, in essence, that consequently there was no basis for supposing that in the Warrnambool conversation the appellant was talking about an affair with Mrs Poll. Defence counsel referred to the evidence of Ms Young that she was still in a relationship with the appellant at least in November 1993 and submitted that, having regard to the date on which Mrs Poll was killed and the reference in the Warrnambool conversation to the married woman having been killed 'after Miffy [that is, after Ms Young]', the appellant was not talking about an affair with Mrs Poll. (h) On the appellant's case, as put by defence counsel, the married woman to whom the appellant referred in the Warrnambool conversation was not Mrs Poll but another woman. (i) Defence counsel noted M's evidence that in the Yatala conversation the appellant in effect had denied having an affair with Mrs Poll. Defence counsel submitted that the appellant's reaction to M's mention of the Warrnambool conversation was consistent, in essence, with the appellant asserting that what M had said about the Warrnambool conversation, when she met with the appellant at Yatala Prison, was not correct. (j) Defence counsel submitted in her closing address, in essence, that the jury should not accept that M's evidence as to the Warrnambool conversation was correct because there was no evidence of an affair by Mrs Poll. (k) Defence counsel did not rely upon the appellant's assertion in the Warrnambool conversation that the husband of the married woman had knifed her. (l) Defence counsel did not refer in her closing address to any alleged lies the appellant had told or may have told. 236 As to the possible lies identified, the trial Judge directed the jury in his summing up as follows: (a) The jury could only 'use the Warrnambool conversation against [the appellant]' if the jury accepted that the Warrnambool conversation -- 64 of 90 -- [2023] SASCA 80 The Court 61 occurred as M recounted in her evidence. If the jury made that finding then it was open to the jury to infer, based on M's evidence as to the Warrnambool conversation together with other circumstantial evidence adduced at the trial, that Mrs Poll was the married woman to whom the appellant was referring. (b) If the jury inferred, as permitted by his Honour's direction, that Mrs Poll was the married woman to whom the appellant was referring in the Warrnambool conversation, then it was open to the jury to infer that the appellant had 'some sort of connection with, or interest in, Mrs Poll in some way' and 'some interest in her death in some way'. However, his Honour said that it did not necessarily follow that what the appellant said about having sexual intercourse with Mrs Poll was true. That aspect of what the appellant said 'may be untrue'. But, if that aspect was untrue, it was still open to the jury to infer that the appellant had 'an interest in [Mrs Poll] and the fact that [the appellant] was prepared to claim that he had had [sexual] intercourse with her may display the holding of such an interest, talking about a person sexually'. 237 His Honour directed the jury that if they were to conclude that the appellant lied in the Warrnambool conversation or the Yatala conversation, then 'it was for [the jury] to say what conclusion you come to concerning such a lie'. 238 The trial Judge then gave the jury a direction which mirrored the direction formulated by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff as a direction which their Honours said:65 … might have appropriately been given [in Zoneff] and which would have allayed any concerns which the trial Judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury. 239 His Honour directed the jury that even if the prosecution proved the blood and DNA deposition evidence beyond reasonable doubt, it would be necessary for the jury to consider the evidence of the likelihood ratios in combination with other prosecution evidence which the jury decided was established 'when ultimately considering whether the prosecution has proven [the appellant's] guilt beyond reasonable doubt'. 240 As we have mentioned, Ground 3.3 alleges that the trial Judge's directions were flawed insofar as they constituted a lies direction. His Honour's directions on lies must be considered by taking the directions (and the summing up) as a whole. They must be considered from the perspective of a jury listening to those directions (and the summing up) as a whole and how the jury might understand 65 Zoneff v The Queen (2000) 200 CLR 234 at [23] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. -- 65 of 90 -- [2023] SASCA 80 The Court 62 them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts.66 241 We turn to consider whether the trial Judge was required to direct the jury that if they were to conclude that the appellant lied during the Warrnambool conversation, then that conclusion was relevant only to the appellant's credit and the jury could not treat that conclusion as evidence of the appellant's guilt. 242 That question arises in respect of the possible lies in the Warrnambool conversation that first, the appellant had a sexual relationship with Mrs Poll and second, her husband found out about the affair and knifed her. 243 The risk of the jury identifying and misusing those possible lies must be evaluated in the context of the following: (a) The prosecution case at the trial was that on 29 April 1993 the appellant killed Mrs Poll by inflicting multiple stab wounds with a knife and that the appellant did not become a suspect in the murder investigation until about September 2019 (that is, after the occurrence of the Warrnambool conversation in about early July 2019). (b) The prosecutor did not say to the jury at any stage of the trial that the appellant had lied during the Warrnambool conversation. (c) The prosecutor did, however, submit to the jury, in essence, that M's evidence as to the content of the Warrnambool conversation (including M's evidence that the appellant said the married woman was frightened that her husband would find out about their affair and that the husband 'did find out and [the husband] knifed her and they never got him for it') was true and correct. (d) The prosecutor submitted to the jury, in essence, that if the jury found that M's evidence as to the content of the Warrnambool conversation was true and correct, then it would be open to the jury to conclude, and the jury should conclude, that the appellant was claiming to have some connection with Mrs Poll, that the appellant was speaking about the circumstances of Mrs Poll's killing and that the appellant was showing an interest in Mrs Poll and her murder. (e) The prosecutor submitted to the jury, in essence, that there was no evidence that at any time Mrs Poll had been engaged in an extramarital affair. The prosecutor then submitted, in essence, that even if the jury found that Mrs Poll was not having an affair with the appellant or anyone else, the jury should nevertheless conclude that during the Warrnambool conversation the appellant was claiming to have had an 66 See R v Dookheea (2017) 262 CLR 402 at [37] per Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ. -- 66 of 90 -- [2023] SASCA 80 The Court 63 association with Mrs Poll and '[the appellant] must have been talking on the topic of [Mrs Poll] and the circumstances of her killing'. (f) The prosecution's case at the trial was that Mr Poll was not responsible for Mrs Poll's death. (g) It was therefore, at least implicitly, a material aspect of the prosecution case at the trial that if the jury found that M's evidence as to the content of the Warrnambool conversation was true and correct and if the jury concluded that during the Warrnambool conversation the appellant was claiming to have had an association with Mrs Poll and '[the appellant] must have been talking on the topic of [Mrs Poll] and the circumstances of her killing', then the appellant's assertions in the conversation that he had sex with a married women and that '[the husband] knifed her and they never got him for it' were untrue and incorrect. (h) The prosecutor did not expressly confront the divergence between the appellant's assertion (on M's evidence) that the husband of the married woman had knifed her, on the one hand, and the prosecution case that Mr Poll was not responsible for Mrs Poll's death, on the other, despite the prosecutor submitting to the jury that (if the jury found that M's evidence as to the content of the Warrnambool conversation was true and correct) the appellant was claiming to have some connection with Mrs Poll, the appellant was speaking about the circumstances of Mrs Poll's killing and the appellant was showing an interest in Mrs Poll and her murder. (i) The prosecutor appears to have dealt with the divergence by saying that what was significant about the Warrnambool conversation was not whether the appellant had an affair with Mrs Poll, but that in the middle of 2019, some 26 years after Mrs Poll was killed, the appellant was talking about a married woman who worked in a shop, who was knifed to death and 'the culprit got away with it'.67 (j) The prosecutor also appears to have dealt with the divergence, in the course of enumerating the features of the Warrnambool conversation that, on the Crown's case, should lead the jury to draw the inference that the appellant was speaking about Mrs Poll, by saying that those features included the appellant asserting that the police 'never got the person responsible for it'.68 (k) The prosecutor submitted that, although there were points of difference between what the appellant said in the Warrnambool conversation and what was known about Mrs Poll's life, the appellant must have been speaking about Mrs Poll and the circumstances of her killing and, if he 67 (emphasis added). 68 (emphasis added). -- 67 of 90 -- [2023] SASCA 80 The Court 64 was speaking about those matters, then it was clear that the appellant was claiming to have some connection to Mrs Poll. The prosecutor elaborated that if the jury found that the appellant was speaking about Mrs Poll and the circumstances of her killing, then the jury could consider the DNA evidence in that light; in particular, what were the chances of a 'crime scene and/or laboratory error in relation to samples implicating [the appellant]' in respect of a crime about which the appellant was speaking to a new girlfriend, in another State, 26 years after the event. (l) Defence counsel submitted, in essence, that the jury should not be satisfied that the Warrnambool conversation related to Mrs Poll because the appellant was talking about an affair with a married woman and the evidence at the trial established that Mrs Poll had not engaged in an extramarital affair. It was submitted, in essence, that either M had 'got things mixed up' or the appellant was not referring to Mrs Poll in the conversation. (m) The trial Judge directed the jury, in essence, that if the jury found that M's evidence as to the content of the Warrnambool conversation was true and correct, then the jury must not use the evidence of that conversation: (i) to find that what the appellant said in the conversation displayed 'some sort of knowledge that only the killer could have had'; or (ii) to reason that the appellant was a person of bad character because he was prepared to encourage adultery by a married woman. (n) His Honour directed the jury, in essence, that if the jury found that M's evidence as to the content of the Warrnambool conversation was true and correct, then it would be open to the jury to draw an inference that Mrs Poll was the married woman to whom the appellant was referring and, if the jury drew that inference, it would be open to the jury to draw a further inference that the appellant had 'some sort of connection with, or interest in, Mrs Poll in some way or, indeed, some interest in her death in some way', even if the jury were not satisfied that the appellant was having an affair with Mrs Poll. (o) The trial Judge directed the jury, in essence, that if the jury concluded that the appellant told a lie during the Warrnambool conversation, then 'it was for [the jury] to say what conclusion you come to concerning such a lie'. The jury should 'make up your own mind whether [the appellant] told a lie and if he did whether he did so deliberately'. It was for the jury 'to decide what significance a lie may have in relation -- 68 of 90 -- [2023] SASCA 80 The Court 65 to the credibility of [the appellant] and the issues in the case'.69 His Honour then warned the jury not to follow 'a process of reasoning to the effect that just because a person is shown to have told a lie about something that is positive evidence of his guilt of the offence charged'.70 (p) His Honour directed the jury, in essence, that even if the prosecution proved the blood and DNA deposition evidence beyond reasonable doubt, it would be necessary for the jury to consider that evidence (in particular the likelihood ratios) in combination with other prosecution evidence which the jury accepted when considering the ultimate question, namely whether the prosecution had proven the appellant's guilt beyond reasonable doubt. So, on his Honour's directions, proof by the prosecution of the blood and DNA evidence was a necessary but not a sufficient basis for conviction of the appellant. 244 In our opinion, having regard to the trial record, the prosecution's case, the appellant's case and the trial Judge's directions, it was open to the jury to find that: (a) M's evidence as to the content of the Warrnambool conversation was true and correct; (b) during the Warrnambool conversation the appellant was speaking about Mrs Poll and the circumstances of her killing; (c) during the Warrnambool conversation the appellant was claiming to have had an association with or a connection to Mrs Poll and he was showing an interest in Mrs Poll and her murder; and (d) Mr Poll was not responsible for Mrs Poll's death and consequently the appellant's assertion in the Warrnambool conversation that '[the husband] knifed her and they never got him for it' was untrue and incorrect. 245 It is therefore necessary to consider whether, if the jury made those findings, there was a real risk, having regard to the trial record, the prosecution's case, the appellant's case and his Honour's directions, that: (a) the jury may have reasoned that the appellant told a lie in implicating Mr Poll as the person who had knifed Mrs Poll and that the appellant told the lie to conceal that in fact he had knifed Mrs Poll; and (b) the jury may have used that reasoning, in combination with other evidence which the jury accepted including the prosecution blood and 69 Emphasis added. 70 Emphasis added. -- 69 of 90 -- [2023] SASCA 80 The Court 66 DNA deposition evidence, in arriving at its ultimate conclusion that the prosecution had proven the appellant's guilt beyond reasonable doubt. 246 It is also necessary to consider whether in relation to the possible lie identified by the trial Judge, the jury may have found that the appellant was speaking about Mrs Poll and the circumstances of her killing and that the appellant’s statement that he had sex with a married women for several weeks (that being Mrs Poll) constituted a deliberate lie; and used that lie as evidence of his guilt. 247 In our opinion, any risk of the jury reasoning in the manner we have indicated in relation to each of the possible lies was adequately guarded against by the trial Judge's directions to the jury in the context of the trial record, the prosecution's case and the appellant's case at the trial. Our reasons for that opinion are as follows. 248 First, his Honour directed the jury that the jury must not use M's evidence as to the content of the Warrnambool conversation to find that what the appellant said in the conversation displayed 'some sort of knowledge that only the killer could have had'. Second, his Honour directed the jury, in accordance with Zoneff not to follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is positive evidence of his guilt of the offence charged.71 Third, there is no reason to think that the jury would not have understood and followed his Honour's directions.72 Fourth, the prosecutor did not say to the jury at any stage of the trial that the appellant had lied during the Warrnambool conversation. In particular, the prosecutor did not say to the jury at any stage that the appellant had told or may have told the possible lies identified. Nor did the prosecutor elevate the appellant’s purported ‘embellishment’ of having had a sexual relationship with Mrs Poll to a deliberate lie. Fifth, despite it being the prosecution's case that Mr Poll was not responsible for killing Mrs Poll, the prosecutor merely referred in her closing address to the appellant having asserted during the Warrnambool conversation that 'the culprit' got away with knifing the married woman and the police never got 'the person' responsible for knifing her. Sixth, defence counsel did not refer in her closing address to any alleged lies the appellant had told or may have told. Indeed, the appellant's case, as put by defence counsel, was that the appellant had not told any lies. Seventh, defence counsel, who is an experienced criminal trial lawyer, did not request his Honour to give the jury an additional direction or a redirection to the effect that if the jury found that the appellant had told any lies in the Warrnambool conversation then the lies were relevant only to his credit (and were not evidence of his guilt). Eighth, defence counsel sought, in the absence of the jury, to clarify with his Honour the directions that his Honour had given about lies. Defence counsel was content with the explanation his Honour gave. It is apparent, therefore, that defence counsel, who 71 Zoneff v The Queen (2000) 200 CLR 234 at [23] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 72 See Gilbert v The Queen (2000) 201 CLR 414 at [13] per Gleeson CJ & Gummow J, [31]-[32] per McHugh J; Dupas v The Queen (2010) 241 CLR 237 at [28]-[29] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ. -- 70 of 90 -- [2023] SASCA 80 The Court 67 was absorbed in the atmosphere of the trial, did not perceive that any redirection or additional direction was necessary including a direction to the effect that if the jury found that the appellant had told any lies in the Warrnambool conversation then the lies were relevant only to his credit (and were not evidence of his guilt). Ninth, in all the circumstances to which we have referred, had his Honour given the jury a direction to the effect that if the jury found that the appellant had told any lies in the Warrnambool conversation then the lies were relevant only to his credit (and were not evidence of his guilt), the direction would have raised an issue in relation to the Warrnambool conversation on which the prosecutor and defence counsel were not joined. The direction would have had the effect of highlighting issues in relation to the appellant's credibility and giving those issues some prominence in the jury's deliberations to the prejudice of the appellant. It is more likely than not that defence counsel's omission to request a direction to the effect that we have described was the result of a deliberate forensic decision. 249 Consequently, we are satisfied that the trial Judge was not required to direct the jury that if the jury were to conclude that the appellant lied during the Warrnambool conversation, then that conclusion was relevant only to the appellant's credit and the jury could not treat that conclusion as evidence of the appellant's guilt. 250 In any event, we are not satisfied that it is reasonably possible that his Honour's failure to give a direction to the effect that we have described may have affected the jury's verdict. None of the identified lies, if found proven in this case, could have had any significant impact on the appellant’s credibility in circumstances where the appellant did not participate in a police interview, nor give evidence. The appellant’s account was found in his largely bland denials during the recorded telephone calls to his family. 251 The appellant also submitted that the trial Judge did not direct the jury with adequate specificity that the evidence of the appellant’s lies was relevant to the jury’s assessment of the appellant’s denials in the recorded telephone conversations. In circumstances where there was no other evidence of the appellant’s denials or account, it would have been obvious to the jury that the trial Judge’s directions related to the appellant’s denials in the recorded telephone conversations. 252 We are not satisfied that the trial Judge’s directions as to lies resulted in a miscarriage of justice. 253 We grant permission to appeal on Grounds 3.2, 3.3 and 3A but dismiss both Grounds 3 and 3A. Grounds 4 and 4A – Failing to put the defence case and unbalanced summing up 254 The appellant complains that the trial Judge erred in his directions as to the burden and standard of proof, and in failing to adequately and fairly present the -- 71 of 90 -- [2023] SASCA 80 The Court 68 defence case (Ground 4). This ground of appeal has two limbs: first, that the trial Judge erred in failing to adequately direct the jury that the prosecution must exclude the reasonable possibility that the accused did not kill Mrs Poll; and second, that the trial Judge erred in failing to adequately put the defence case as to the forensic evidence and M’s evidence. The appellant also contends that the trial Judge interspersed his presentation of the defence address with ‘rebuttal comments’ and the trial miscarried as a result of an unbalanced summing up (Ground 4A). 255 In analysing the force of those complaints, it is necessary to say something further about each respective parties’ case at trial. 256 As discussed earlier, the central issue in dispute was whether the prosecution had proven the identity of the offender as the appellant. There was no contest as to the remaining legal elements of murder. In relation to the primary evidence implicating the appellant, that being the blood and DNA deposition evidence, the trial Judge directed the jury that the prosecution relied on six propositions in relation to that evidence. First, the offender cut himself during the attack on Mrs Poll. Second, there were 12 samples taken from the apparent blood stains deposited by the offender. Third, those 12 samples were properly collected by police and properly submitted for forensic testing. Fourth, those samples were properly preserved and analysed, and the results correctly reported. Fifth, all 12 samples had at least one contributor that was male. Sixth, of the 12 samples there were three single DNA profiles which identified a single contributor, and each had a statistical weighting of over 100 billion in favour of the proposition that the appellant was the contributor when compared with the hypothesis that it was from an unknown male contributor. Thus, as outlined earlier, the blood and DNA deposition evidence was described as a critical connection between the appellant and the crime scene and an indispensable, intermediate link in proof of the offence which needed to be established beyond reasonable doubt. 257 At trial, and as set out earlier, defence counsel’s submissions in relation to the DNA evidence were two-fold. First, the evidence did not establish a chain of evidence in relation to the collection, storage and examination of items undertaken in 1993, and again, in 2019. It was submitted that various errors, missing items, and an incomplete record of the history of those items were apparent in the documentation now available. Moreover, witnesses made mistakes at the time of analysis, and at the time of giving evidence, which undermined the chain of evidence. Second, there were anomalies identified in the records which undermined any confidence that proper procedures had been followed. It was also contended that protocols in place in 1993, requiring protective clothing and footwear protectors to be worn by crime scene examiners for the purpose of avoiding contamination and mistakes, were not adequately followed as shown by video footage recorded at that time. 258 In addition to contesting the DNA evidence, defence counsel also relied upon a body of evidence called as part of the prosecution case which, it was submitted, -- 72 of 90 -- [2023] SASCA 80 The Court 69 raised a reasonable possibility that the appellant was not the offender. That included the following evidence: • A qualified fingerprint expert, Senior Constable Graeme Bubner, testified that several fingerprints were located throughout the newsagency, and on Mrs Poll’s handbag, which were suitable for identification; none of the fingerprints matched those of the appellant. • A witness described seeing a male inside the newsagency at 8:55pm who did not fit the appearance of the appellant. • Another witness observed a male in the vicinity of the newsagency between around 8:50pm and 8:55pm who did not fit the appearance of the appellant. • As to the evidence of Ms Parsons that she observed a male in the vicinity of the newsagency with dark facial hair, the appellant’s mother, Ms Richardson, gave evidence that he was always clean shaven. • The appellant worked at a service station in 1993. Due to the passage of time, his employment records were unable to be obtained by police, depriving him of the ability to establish an alibi. • The appellant repeatedly denied being involved in the murder during recorded telephone calls from October 2019 to May 2020. • As to the evidence that the offender may have sustained a cut or free-bleeding injury during the attack on Mrs Poll, Ms Richardson, and Ms Young gave evidence that they did not observe any cut or injury to the appellant’s hand in April 1993. • Fingernail cuttings taken from Mrs Poll were analysed for the presence of DNA; the appellant was not a contributor to the DNA profile extracted from those cuttings. Dr James gave evidence that the DNA of an assailant was often found under fingernails due to defensive scratching. • The evidence of Dr Sara Jones in relation to the size of shoe worn by the offender implicated 40 per cent of the male population and the type of shoe the subject of the examination was proved to have not been worn by the appellant. • As to the evidence of M regarding the Warrnambool conversation, and to the extent that the jury were satisfied that the appellant was referring to Mrs Poll (as discussed in relation to Ground 3), such assertions included an exculpatory statement, namely a denial that he was the offender and an assertion that Mrs Poll’s husband stabbed her because -- 73 of 90 -- [2023] SASCA 80 The Court 70 he learnt that they were having an affair. Defence counsel challenged M’s account, and that it was referable to Mrs Poll, on the basis that: (i) she wrongly concluded that the subject matter was about Mrs Poll because of his subsequent arrest for the offence; (ii) there was no other material or evidence that suggested Mrs Poll was having an affair with the appellant, or anyone; and (iii) according to M, the appellant spoke of the affair having occurred at a time after he ended his relationship with Ms Young, which placed it at a time after the murder. • Beyond M’s evidence, there was no other evidence to suggest that the appellant was having an affair with Mrs Poll. • There was no evidence that the appellant had a motive to commit the offence. 259 The appellant complains that the trial Judge did not adequately put the full breadth of the defence case. In relation to the first limb of this contention, that the trial Judge erred in his directions as to the burden and standard of proof, the issue arose at trial in the following way. At the outset of his summing up, the trial Judge gave directions as to the presumption of innocence which he said could only be displaced by the prosecution proving beyond reasonable doubt every element of the charge. The trial Judge also informed the jury that the appellant had no burden of proof, including as to any defence put forward by the appellant, and that suspicion of having committed the offence, or probable guilt, would not suffice. His Honour reiterated that the burden remained with the prosecution to establish guilt to the highest standard of proof beyond reasonable doubt. 260 The trial Judge then gave the impugned direction: Ladies and gentlemen, if you think at the end of the day that it is a reasonable possibility that someone other than the accused killed Mrs Poll, then of course you should acquit the accused because the charge will not have been proven beyond reasonable doubt. 261 As discussed in relation to Ground 3, this direction had the effect of bringing to the attention of the jury the appellant’s purported exculpatory statement in the Warrnambool conversation that Mrs Poll’s husband had killed her. 262 During a break in the summing up, defence counsel sought a re-direction to the effect that the jury must acquit if they found it to be a reasonable possibility that the appellant did not kill Mrs Poll. Defence counsel submitted to the trial Judge that the impugned direction may leave the jury with the impression that the accused had to establish that there was a reasonable possibility someone else killed Mrs Poll. The trial Judge ultimately did not re-direct on the topic. The appellant submits to this Court that the impugned direction resulted in a miscarriage of justice. 263 For the respondent, it is submitted that the impugned direction must be seen in the context of the issues at trial, that being whether the prosecution had proved -- 74 of 90 -- [2023] SASCA 80 The Court 71 that the appellant was the offender (that is, the identity of the offender); and emphasised that there was no dispute that someone had murdered Mrs Poll. The respondent submits that, in the circumstances of this case, a reference to the prosecution being required to exclude as a reasonable possibility that Mrs Poll was killed by someone other than the appellant was the logical equivalent of instructing the jury that they must exclude as a reasonable possibility that the appellant did not kill her; the direction was referring to one and the same thing. 264 In considering this complaint, the summing up must be read as a whole. At the outset, the trial Judge outlined the standard and burden of proof in orthodox terms. His Honour reiterated those matters when discussing the elements of the offence of murder and when instructing the jury as to circumstantial evidence. Bearing in mind that the only issue in dispute at trial was the identity of the offender, we are satisfied that the jury would have well understood that the prosecution were required to establish beyond reasonable doubt that the accused killed Mrs Poll, including the exclusion as a reasonable possibility that someone other than the accused killed her, or that the accused did not kill her (being, in effect, the same reasonable possibility). The trial Judge did not, in the impugned direction, or at any stage during his summing up, suggest that the jury would have to identify an alternate killer in order to be left with a reasonable doubt that the accused committed the offence. 265 As to the second limb of this ground of appeal, and the contention that the trial Judge failed to adequately or fairly put the defence case as to the forensic evidence and M’s evidence, and that his Honour interspersed his summary of the defence address with rebuttal comments, there is considerable overlap between these contentions and the complaint that the summing up was unbalanced. They are, in effect, one complaint as to the unbalanced and unfair nature of the summing up. In support of this contention, the appellant relied on the trial Judge’s ‘rebuttal’ of various parts of defence counsel’s submissions in her closing address. 266 Defence counsel relied on internal emails within the FSSA concerning a ‘fridge audit’ of samples seized from the crime scene (Exhibit D13) and the testing of those samples (Exhibit D15) to demonstrate uncertainty as to the chain of evidence. The trial Judge summarised defence counsel’s submissions on that topic. However, the appellant submits that the trial Judge went on and diluted the force of those submissions when he emphasised that the emails were internal documents and formed only a small part of a voluminous file. His Honour said: It is fair to mention the general dates that we are talking about here and that, of course, these emails are not long after the accused was arrested on this charge and, accordingly, people at forensic science had to, as it were, gird themselves to start all over again in relation to this matter. So, if you look at the email of Dr Taylor D15 it is an introductory sort of a thing … and then basically making introductory requests and inquiries as you might, if you have suddenly got a big job ahead of you. But, ladies and gentleman, these two items are internal emails not designed to be formal documents. I will just say that. They are what they are. You place what weight you consider -- 75 of 90 -- [2023] SASCA 80 The Court 72 but remember that there are a great number of records from forensic science and I referred to those quantities a bit earlier today and one cannot expect a complete, an entire, recitation of a situation on any particular one document or email. In any event, defence counsel went on to refer to some cross-examination of Mr Taylor concerning taking cuttings from a [forensic recovery evidence device] generally and then went on to make this submission: “With D13 in mind as the only window we have on how these items have been stored and kept in a centre you can’t exclude, I suggest, the risk that there has been a contamination which has affected those results.” Ladies and gentleman, the records are voluminous; it will be for you to say whether D13 is the only window you have. 267 The appellant submits that the trial Judge’s comments had the effect of neutralising an important aspect of the defence address. 268 Defence counsel, in her closing address, also relied on police videos taken of the crime scene in 1993 (Exhibits D1 and D3) as undermining evidence of the rigour of police practices in preventing the contamination of crime scene samples. After summarising defence counsel’s submissions on this topic, the trial Judge commented: Defence counsel is certainly correct to say that crime scene procedures concerning collection of material that may be tested for DNA generally as at 1993 were nowhere near as rigorous as they are today and you should bear that in mind. But whether the differences that can be pointed to in such protocols may have led to material errors in the DNA results placed before you can be, of course, a rather different matter and I have put the prosecution position on that, I am certainly not going to repeat it. 269 The appellant contends that the trial Judge’s comments had the effect of weakening the defence submission on a matter in dispute, namely the issue of contamination. 270 As to the evidence of Ms Parsons, the trial Judge read out a portion of defence counsel’s address relating to her criticisms as to the reliability of the evidence. His Honour then said: Well, that is the defence position on that. You do have to remember that she did have her headlights on, so it was not as though this was entirely dark. But in any event, the question remains, how good were her observations, and do you accept that she is correctly reporting to you what she saw. You saw her in the witness box, you can weigh up her evidence. It is a matter for you. 271 It is important to note that at this stage of the summing up, and immediately after making the impugned comments, the trial Judge warned the jury that ‘[p]eople have made mistakes, serious mistakes over the years, when purporting to identify a person as a person who committed a crime…’ and contrasted the evidence of Ms Parsons with an identification from a line-up. His Honour then -- 76 of 90 -- [2023] SASCA 80 The Court 73 reminded the jury that her evidence was no more than a minor strand of circumstantial evidence. 272 In relation to the evidence of M, the trial Judge initially directed the jury in terms that confined defence criticisms of M’s evidence to her intoxication. That was in fact not the focus of defence counsel’s challenge to the evidence. Rather, her emphasis was on the absence of evidence that Mrs Poll was having an affair with anyone, let alone the appellant, and the fact that the timing of the affair (as per M’s account of the Warrnambool conversation) meant that it could not have been referable to Mrs Poll. The appellant contends that the trial Judge’s directions, in effect, withdrew two important aspects of defence counsel’s submissions on the unreliability of M’s evidence. 273 In her closing address, defence counsel also made the submission that M’s account of the conversation was coloured by the appellant’s subsequent arrest for murder, in that she had obtained information about the allegations before recounting the conversation to police. The trial Judge initially referred to that latter submission as ‘puzzling’ and mischaracterised it as a submission that it amounted to an ‘unusual coincidence’ as opposed to M’s account of the conversation being coloured by the fact of his arrest. 274 However, after defence counsel raised those matters, the trial Judge properly put defence counsel’s submissions to the jury. His Honour said: … it is actually a chronological sequence of events as described by M of the learning of the arrest, raising in her the memory of the conversation that had occurred and her then doing something about it... 275 The trial Judge also reiterated defence counsel’s submission that there was no evidence of an affair; and that the timing of the alleged affair would have placed it after Mrs Poll’s murder, so it could not be referable to her. 276 The appellant contends that, notwithstanding those further directions, the trial Judge did not adequately put or explain the defence case on the Warrnambool conversation. 277 In support of the contention that the trial Judge’s summing up was unbalanced, the appellant also relies on the following additional matters. First, the appellant repeated his submissions in relation to Ground 1, that the trial Judge erroneously detracted from defence counsel’s submissions that there was no evidence of motive. Second, the appellant submitted that the trial Judge undermined the exculpatory aspect of M’s evidence as to the Warrnambool conversation in directing the jury that ‘Mr Poll was not the killer. You can entirely discount him as the police have. There can be no suggestion that he was.’. Third, the trial Judge did not give sufficient emphasis to the appellant’s denials during the recorded telephone conversations. The appellant submits that the direction that ‘you can take into account those denials in his favour should you wish to do so’ was inadequate. Fourth, the trial Judge failed to adequately identify and -- 77 of 90 -- [2023] SASCA 80 The Court 74 summarise the prosecution evidence relied upon by the appellant, which we have already set out, as productive of reasonable doubt. Fifth, as to the blood and DNA deposition evidence, the appellant submits that the trial Judge materially undermined defence counsel’s submissions as to the problems with the chain of evidence, and the likelihood of contamination of the crime scene samples, by interspersing a summary of the defence position with reference to tranches of Dr Duncan Taylor’s evidence. The appellant also contends that defence counsel’s submissions as to contamination were effectively ridiculed by the trial Judge’s comment that: You will appreciate, ladies and gentleman, that saying he has been there, but he does not know when, is a very different kettle of fish from saying something along the lines of ‘I was there one morning of that day prior to the stabbing, I cut myself on a piece of paper, had a bleeding nose and somehow dropped some samples, hither and dither.’ He didn’t say anything like that, nothing like that. 278 In summary, the appellant contends that the trial Judge failed to adequately put the defence position as to his challenge to significant aspects of the prosecution case, and in relation to evidence relied on as being exculpatory. It is submitted that these inadequacies, when considered against the general unbalanced nature of the summing up, occasioned a miscarriage of justice. 279 The applicable general principles are well established. The fundamental task of a trial judge is to ensure a fair trial. That task will involve not only instructing the jury about the law but extends to identifying the issues and relating the law to those issues. A trial judge must hold an even balance between the respective cases and must fairly direct the jury’s consideration to the matters raised in an accused’s defence. 280 In McKell v The Queen,73 the High Court considered a trial judge’s ‘broad discretion’ to comment upon factual matters during the summing up. In allowing the appeal, the Court held that statements by the trial Judge were so lacking in balance as to be seen as an exercise in persuading the jury of the accused’s guilt, were unfair to the accused; and gave rise to a miscarriage of justice. 281 Justices Bell, Keane, Gordon and Edelman relevantly observed:74 A trial judge’s “broad discretion” to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion has to be exercised judicially as part of ensuring that the facts of the case are put “accurately and fairly” to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial Judge’s summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment. 73 (2019) 264 CLR 307. 74 McKell v The Queen (2019) 264 CLR 307 at [3] per Bell, Keane, Gordon and Edelman JJ. -- 78 of 90 -- [2023] SASCA 80 The Court 75 (citations omitted) 282 Their Honours considered that the relevant question was whether:75 the trial Judge’s comments were apt to create a “danger” or a substantial risk that the jury might actually be persuaded of the appellant’s guilt by comments in favour of the prosecution case made with the authority of the judge. (citations omitted) 283 As to the comments of a trial judge when the prosecution case is a strong one, their Honours acknowledged that:76 … even a neutral summary of that case by the trial Judge may sound adverse to the accused, but there is a real and well-recognised difference between the statement of a case and the advocacy of that case. ... Further, the circumstance that a case against an accused person appears a strong one in no way diminishes the obligation of those conducting the trial to ensure that it is a fair one. (citations omitted) 284 The extent of the duty to put the defence case is not informed by the strength of the prosecution case, nor the trial Judge’s views as to the relative merits or weaknesses of the defence case.77 285 In relation to the discretion of the trial Judge to comment on the parties’ respective cases, the appellant also relied on the authorities of R v Emes78 and Pyliotis v The Queen.79 286 In R v Emes, the trial Judge commented adversely on the appellant’s explanation for an incriminating text message. This Court ultimately found that while the trial Judge presented both prosecution and defence submissions on that critical issue, in a short summing up, he effectively presented a better address to the jury than the prosecutor had done in a way that ‘improperly skewed the balance in favour of the prosecution.’80 For that reason, the appeal was allowed. 287 In Pyliotis v The Queen, the trial Judge made a series of comments responding to various submissions advanced by defence counsel. The Court of Criminal Appeal of Victoria held that the comments added force to the prosecution case and undermined the applicant’s defence. The Court considered that the comments were not necessary to restoring an imbalance of fairness between the prosecution and defence, nor to correct errors that might otherwise have adversely affected the jury’s capacity to decide the case fairly on the merits; and there was a 75 McKell v The Queen (2019) 264 CLR 307 at [42] per Bell, Keane, Gordon and Edelman JJ. 76 McKell v The Queen (2019) 264 CLR 307 at [44] per Bell, Keane, Gordon and Edelman JJ. 77 R v Tomazos NSWCCA 6 August 1971. 78 [2019] SASCFC 75. 79 [2020] VSCA 134. 80 R v Emes [2019] SASCFC 75 at [35] per Kelly J (with whom Nicholson and Hinton JJ agreed). -- 79 of 90 -- [2023] SASCA 80 The Court 76 real risk that the comments may have unfavourably influenced the jury’s consideration of the defence case. The appeal was allowed.81 288 With those general principles in mind, we turn to consider the question of whether the trial Judge adequately put the defence case and whether the trial miscarried as a result of an unbalanced summing up. In doing so, it is necessary to consider the summing up in its entirety in the context of the evidence led at trial and the issues in dispute.82 289 As noted above, the ultimate issue for determination by the jury was whether the prosecution had proved that the appellant was the offender. The prosecution relied primarily on the blood and DNA deposition evidence. The appellant did not give or call any evidence at trial. The appellant’s case, at trial, consisted of a challenge through cross-examination of prosecution witnesses as to the accuracy and reliability of the blood and DNA deposition evidence, and a reliance on other aspects of the evidence adduced as part of the prosecution case. Accordingly, it was inevitable that the summing up would consist largely of a summary of the prosecution case. 290 As to the defence case on the blood and DNA deposition evidence, the trial Judge dealt with defence submissions in detail and made express reference to: the absence of modern safeguards for the collection and preservation of evidence; defence exhibits which were said to provide examples of procedures being inadequately observed (exhibits D13 and D15); videos of the crime scene examination which cast doubt on the vigour of police crime scene examination procedures (exhibits D1 and D3); the absence of accreditors checking the FSSA’s handling of this case and its mistakes in paperwork; and the absence of written records of procedures relating to DNA analysis in the FSSA’s case file. 291 The trial Judge also went on to give additional directions sought by defence counsel as to the blood DNA and deposition evidence. 292 In relation to the trial Judge’s rebuttal comments, summarised above, we are satisfied that the juxtaposition of the prosecution and defence positions on that topic was simply a means of drawing the jury’s attention to competing considerations and did not involve the trial Judge aligning himself with the prosecution case nor deprecating the defence case. 293 As to the evidence of M, the trial Judge reminded the jury of defence counsel’s submission that M was an ‘honestly mistaken witness’. The trial Judge addressed the jury as to M’s level of intoxication and, as requested by defence counsel, reminded the jury of defence counsel’s submission that her account of the conversation was affected by the fact of the accused’s arrest. The trial Judge also reminded the jury of defence counsel’s submission that the appellant’s account of 81 Pyliotis v The Queen [2020] VSCA 134 at [78]-[79] per Priest, Niall and T Forrest JJA. 82 McKell v The Queen (2019) 264 CLR 307 at [30] per Bell, Keane, Gordon and Edelman JJ; See also Roberts v The Queen (2022) 365 FLR 367. -- 80 of 90 -- [2023] SASCA 80 The Court 77 the affair placed it at a time after his relationship with Ms Young had ended, and therefore after Mrs Poll was murdered. 294 As to the other evidence relied upon in the appellant’s defence, the trial Judge specifically referred to defence counsel’s submissions as to the unreliability of Ms Parsons’ evidence; highlighted the absence of injury to the appellant’s hand; referred to the absence of the appellant’s DNA under Mrs Poll’s fingernails; and, in dealing with the shoe impressions, noted that 40 per cent of the male population take a size nine shoe. A significant forensic disadvantage direction was given concerning the unavailability of the appellant’s work records due to the passage of time. 295 Having considered the trial record and the summing up as a whole, we are satisfied that it was not unbalanced, and the trial Judge adequately presented the defence case to the jury. We do not consider that the trial Judge’s comments, individually or cumulatively, were apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant’s guilt. 296 We grant permission on Ground 4A but dismiss both Grounds 4 and 4A. Ground 5 – Directions as to the evidence of Debra Parsons and Dr Sara Jones 297 This complaint concerns the trial Judge’s directions as to the evidence of Ms Parsons and her description of a male she observed in the vicinity of the newsagency at around the time of Mrs Poll’s murder; and the evidence of Dr Jones as to the unidentified shoe impressions left at the crime scene. The trial Judge instructed the jury that both bodies of evidence were ‘consistent with’ the prosecution case. The appellant contends that his Honour did not make clear to the jury that the evidence did not directly implicate the appellant, and in the absence of a direction in those terms, there exists a risk that the jury approached the evidence as confirmatory of the appellant’s guilt. 298 In his summing up, after reciting a passage of the prosecution’s address in relation to the evidence of Ms Parsons, the trial Judge gave the following direction: Ladies and gentlemen, the Crown here is of course conceding that you could not convict the accused on that basis, on the basis of that evidence of Ms Parsons alone; it is simply not enough, but the prosecution says if you are prepared to accept that the prosecution have established their major strand of the blood and DNA deposition evidence, then you can also take into account other strands of varying weight. And this particular strand shows that there was someone whose description given by Ms Parsons was consistent with having just committed a crime of this sort, consistent, it doesn’t have to be, but consistent and, secondly, consistent with the general appearance of the accused as he would have appeared at that time. It is not said to be strong by itself but it is just a matter you can bear in mind if you adopt the process that the Crown suggest you should. In a similar way, the Crown point to the shoe print evidence, that the testing found that the shoe was in certain parameters which were equivalent to a size 9, male shoe. It is of course immediately disclosed to you that about 40% of the male population take a shoe size in that range so again it is consistent with the accused but of itself could never prove a case. It -- 81 of 90 -- [2023] SASCA 80 The Court 78 does, however, constitute even more confirmatory evidence that it was not Mr Poll, whose shoe size was seven to seven and a half. But, as I say, it is a matter you can take into account and give it what weight you consider it deserves. 299 Later in the summing up, after referring to defence counsel’s address as to the evidence of Ms Parsons, and when addressing the jury as to the defence case, his Honour said: Well, that is the defence position on that. You do have to remember that she did have her headlights on, so it was not as though this was entirely dark. But, in any event, the question remains, how good were her observations, and do you accept that she is correctly reporting to you what she saw. You saw her in the witness box, you can weigh up her evidence. It is a matter for you. It is the case that people can, some people can, have difficulties in making observations and describing and remembering the appearance of other persons. Is this lady, Ms Parsons, such a person or not? It is a matter for you. People have made mistakes, serious mistakes over the years, when purporting to identify a person as a person who committed a crime, and those mistakes have been later exposed. And here, of course, no-one suggests that Ms Parsons has picked the accused out of a line- up of people, and she does not point to him in court and say ‘That’s him’. So you do not have any of those things. This is not a case where she purports to identify the accused as that person she saw. But, once again, as I say, it is no more than a minor strand in the prosecution case of consistency, rather than this is definitely the person, and so I will leave it at that. 300 It can be seen that the trial Judge instructed the jury that on one view of Ms Parsons’ evidence, and the shoe impression evidence, it was consistent with the prosecution case on the issue of identity. That is, the appearance of a male in the vicinity of the newsagency (purportedly the offender) was consistent with the appellant’s appearance at the time of the attack in April 1993, and the size of the unaccounted shoe impressions (inferentially worn by the offender) was consistent with the size of shoes worn by the appellant at the time of his arrest. 301 In support of this ground of appeal, the appellant relied on the authority of R v B and D.83 In that matter, the appellants were charged with five counts of unlawful sexual intercourse involving the daughter of the appellant, B. The prosecution adduced medical evidence that the state of the complainant’s vagina and hymen were such that there could have been penile penetration. The appellant complained about the trial Judge’s direction to the jury that the medical evidence was ‘consistent’ with the history provided by the complainant. In allowing the appeal, King CJ said:84 It is literally true, of course, that what Dr Moody found was consistent with the history the girl gave and Dr Moody expressed that opinion. I think, however, that the account which his Honour gave of the evidence of Dr Moody in the summing up was inadequate to convey the true effect of her evidence to the jury. The expression “consistent with” is frequently used in ordinary conversation as synonymous with “confirmatory of”. The failure of the 83 (1993) 66 A Crim R 192. 84 R v B and D (1993) 66 A Crim R 192 at 196 per King CJ. -- 82 of 90 -- [2023] SASCA 80 The Court 79 judge to make clear that Dr Moody’s evidence did not in any way implicate the appellants created the risk that the jury might understand the learned judge as conveying that they could regard Dr Moody’s evidence as tending to confirm the guilt of the appellants. 302 In relation to the evidence of Ms Parsons, the appellant submits that, as in R v B and D, the true import of her evidence was that it was not inconsistent with the appellant being the offender; however, it could not positively implicate the appellant in the offence. The appellant contends that the trial Judge’s directions in relation to the evidence of Ms Parsons created the risk that the jury understood that it was permissible to embark upon a process of reasoning whereby the evidence implicated the appellant. 303 In relation to the shoe print evidence of Dr Jones, the prosecution relied upon the evidence that two unidentified shoe marks in the blood at the crime scene were of a size nine shoe, that being the optimal fit for the appellant at the time of the trial. There was no evidence which positively established what size shoe the appellant wore in 1993. 304 The appellant relied on Volpe v The Queen.85 There, the appellant was charged with murder. A male body was located in a reserve and a number of shoe impressions were identified close to the body. Evidence was led of one such impression being part of a shoe’s heel and arch. Approximately a year after the deceased’s body was located, police seized a woman’s size 11 New Balance running shoe from the appellant’s house. There was evidence that the seized shoe could have produced the unidentified impression near the deceased’s body. The Court of Criminal Appeal of Victoria, in allowing the appeal, held that the shoe evidence, while relevant, was of slight probative value and should have been excluded. Justices Priest, Forrest and Weinberg said:86 Moreover, there was no satisfactory evidence about the size of the class of New Balance shoes sold in Victoria which could have left that impression. … At its highest, that evidence established no more than that a shoe with a similar – but not necessarily identical – sole to the shoe seized could have left the impression at marker 3… 305 Their Honours concluded:87 In our view there was a real prospect that the evidence might be used by the jury as proving more than it was capable of doing. By itself, the evidence could never have placed the applicant at the site where the body was dumped; yet, because of its importance to the prosecution case, it was relied upon to prove exactly that. At its highest, the evidence proved no more than that the applicant had access to a shoe that might have left an impression near where the body of the deceased was found, within a few hours of the body there being dumped, and thus that the applicant - were he wearing the shoe - could have 85 [2020] VSCA 268. 86 Volpe v The Queen [2020] VSCA 268 at [72]-[73] per Priest, Forrest and Weinberg JJA. 87 Volpe v The Queen [2020] VSCA 268 at [74]-[75] per Priest, Forrest and Weinberg JJA. -- 83 of 90 -- [2023] SASCA 80 The Court 80 dumped it. As we have said, it was a relevant piece of circumstantial evidence, but it was afflicted by substantial limitation. Next, the risk that the jury would conclude from the impugned evidence that the applicant was the man who dumped the body was magnified by two things: first, the evidence being given a cloak of authenticity by Sergeant Kohlmann’s “expert” contribution to the overall shoeprint evidence; and, secondly, the misstatement by the judge in his charge as to how the prosecution put its case. 306 In the present case, the appellant contends that the direction given by the trial Judge, which erroneously permitted the jury to use the shoe impression evidence as being consistent with the prosecution case, was highly prejudicial to the appellant’s fair trial; and the error was compounded by the trial Judge describing the evidence as ‘confirmatory’ in excluding Mrs Poll’s husband as the offender. 307 It is important to note at the outset that there was no challenge to the admissibility of the evidence of Ms Parsons or Dr Jones at trial, or on this appeal. Further, the evidence of Ms Parsons, and the shoe impression evidence, were minor strands of the circumstantial case against the appellant and were described in that manner by the prosecution, and indeed the trial Judge. Both bodies of evidence were capable of supporting the prosecution case as to identity, although individually or cumulatively they were not sufficient of themselves to prove identity. The prosecution case rested primarily on the blood and DNA deposition evidence. 308 In respect of the impugned directions as to Ms Parsons’ description of the male she saw in the vicinity of the newsagency as consistent with the appearance of the appellant, the trial Judge made plain that it did not constitute identification evidence; and it was not direct evidence that he committed the crime. Indeed, his Honour prefaced his directions as to both Ms Parsons’ evidence and the shoeprint evidence by instructing the jury that it was only if they were prepared to accept as proven the ‘major strand’ of the blood and DNA deposition evidence, that they could take into account the other strands of evidence of varying weight. 309 The authority of R v B and D does not stand for the proposition that it is improper or misleading for a trial judge, in the course of summing up the prosecution case, to use the term ‘consistent with’ in relation to strands of a circumstantial case which, of themselves, do not necessarily implicate an accused. The impugned direction in the case of R v B and D was considered erroneous because it failed to convey the true effect of the evidence; the direction suggested the medical evidence was consistent with the history provided by the complainant, when in fact the evidence was only consistent with a general allegation that penetration had occurred.88 310 Here, the matter is quite different. The trial Judge’s directions did not elevate the evidence of Ms Parsons or Dr Jones beyond what it could properly establish as 88 R v B and D (1993) 66 A Crim R 192 at 196 per King CJ. -- 84 of 90 -- [2023] SASCA 80 The Court 81 part of the prosecution case. Both bodies of evidence were properly left to the jury as minor strands of a circumstantial case, which, when considered in conjunction with other evidence, were probative in proof of identity. As noted above, the trial Judge expressly instructed the jury that it was only if they were prepared to accept beyond reasonable doubt that the prosecution had established the blood and DNA deposition evidence, that they could then take into account the other strands of circumstantial evidence in proof of the identity of the appellant as the offender. 311 Further, as discussed earlier, the trial Judge outlined the limitations in the evidence of Ms Parsons. In relation to the unidentified shoe impressions, the trial Judge emphasised the limited weight to be afforded to the evidence by reminding the jury that 40 per cent of the male population take a shoe size in the range of size nine. As to his remarks that a shoe size nine is ‘confirmatory evidence’ that the offender was not Mr Poll, that remark was of little moment in circumstances where there was evidence that his shoes had been examined and excluded as having made the shoeprint impressions. 312 For those reasons, we are satisfied that the trial Judge’s directions were not erroneous and there was no risk that the jury approached this evidence as directly implicating the appellant. 313 We refuse permission to appeal on Ground 5. Ground 6 – Expert evidence of Dr Ross James and Sergeant David Veldhoen 314 This ground of appeal relates to the expert evidence of Dr James and Sergeant Veldhoen in relation to the deposition of the appellant’s blood. The admissibility of the impugned evidence of Dr James and Sergeant Veldhoen was not challenged at trial. 315 The appellant complains that the admission of the evidence of Dr James, a pathologist, that the offender may have received a cut during the attack on Mrs Poll by his hand slipping onto the knife blade, was erroneous and resulted in a miscarriage of justice. The appellant contends that Dr James’ opinion was speculative given there was no evidence that the appellant had sustained an injury to either hand at the relevant time; indeed, the evidence was to the contrary. 316 On the prosecution case, the evidence of Dr James as to the offender having sustained a cut during the attack was significant; it linked the blood deposited at the crime scene with the appellant (by reason of the DNA results), to the knife attack on Mrs Poll. Sergeant Veldhoen gave evidence that a free-bleeding injury was responsible for the various deposits of blood at the crime scene. 317 Dr James conducted a post-mortem examination on Mrs Poll. At trial, he explained that there were 18 stab wounds near Mrs Poll’s backbone. He considered that the wounds were inflicted while Mrs Poll was face down on the floor. Six of the wounds were consistent with a knife having passed through Mrs Poll’s body into the floor. There were also defensive wounds to her hands -- 85 of 90 -- [2023] SASCA 80 The Court 82 and ‘scalping injuries.’ Dr James said that there was no reason to assume that more than one knife was involved. He thought the blade of the knife was very strong with an extremely sharp edge. He estimated the blade was at least 22cm in length and that it was not a kitchen knife, but rather, a hunting knife. Dr James noted that it was not possible to determine the movements of the offender and Mrs Poll during the attack with any accuracy; he agreed that a stabbing involves a dynamic situation. 318 Dr James explained that the offender’s hand may have been injured during the attack in the following way: … the blade being very sharp, the assailant’s hand can slip down over the blade and receive a cut in that fashion. It is also possible, I suppose, if one wants to get involved in choreography, for the assailant to perhaps hold some hair whilst slashing the back of the scalp and in doing so might inadvertently cut his or her own hand. That’s speculation on my part. 319 Dr James was asked what factors might affect the circumstances in which the offender’s hand would slip onto the blade. He responded: You’re drawing me out here. I suppose whether the blade comes to a sudden stop and a vigorous thrust to a blade that suddenly stops allows the hand to slip over the bloodstained handle and encroach on the sharp knife edge. 320 Dr James agreed blood could act as a lubricant making a slip more likely ‘given the number of injuries and how violent the soft tissue damage was, the blade and the handle would inevitably be covered with blood.’ 321 Sergeant Veldhoen gave evidence that several of the blood stains were consistent with drip stains from a free-bleeding injury. A free-bleeding injury was described as one which expels blood, as opposed to blood remaining adhered to the surface. He explained that a cut that breached blood vessels was capable of causing a free-bleeding injury. He said that blood stains in the back office and on, or under, the interior door handle of the sole entry/exit door to the newsagency were consistent with having been deposited by a free-bleeding injury. 322 The prosecution urged the jury to draw the inference from the combined effect of the evidence of Dr James and Sergeant Veldhoen that the offender had sustained a cut in the course of, or in connection with carrying out the attack on Mrs Poll in the rear office, and then deposited blood in that office and on the internal door handle of the sole entry/exit door when fleeing the newsagency after the attack. 323 The appellant contends that the evidence of Dr James and Sergeant Veldhoen was not admissible as the evidence was purely speculative and without an evidentiary foundation. It was emphasised that both the appellant’s mother, Ms Richardson, and his girlfriend at the time, Ms Young, said that they observed no injuries on the appellant’s hands in April 1993. -- 86 of 90 -- [2023] SASCA 80 The Court 83 324 The appellant contends that Dr James should not have been permitted to speculate on the possibility that the offender sustained a free-bleeding injury during the attack when there was no other evidence which would support that conclusion (as that was a matter directly relevant to a fact in issue). 325 In Straker v The Queen,89 the accused was convicted of the murder of a homosexual male. He did not dispute that he caused the deceased’s death by striking him in the head with a hammer but raised the issue of provocation. The pathologist who conducted the post-mortem examination gave evidence as to the condition of the deceased’s anus and rectum, and the possible cause of that condition. He said that it was explicable on the basis that the deceased was a person who had regular anal intercourse and who had some form of anal interference, or intercourse, shortly before or after death. In allowing the appeal, the High Court held the evidence was inadmissible and prejudicial to the appellant. Justice Jacobs said:90 The real complaint of the appellant is that Dr James was permitted to speculate on a possibility of which there was no evidence of probability, namely, that shortly before or after the killing, a person, who could only be the accused, had played the active role in anal intercourse with the deceased. If there had been evidence of such anal intercourse after death, it would have been strong evidence against the accused in two ways. First, it would have suggested a motive for the killing, namely, necrophilia. Secondly, it would have rebutted the defence of provocation. The question, therefore, is whether Dr James’ speculation on possibilities which had no basis of probability was admissible. I can see no basis upon which it was admissible. It is true that in many circumstances an expert witness is entitled to explain the steps by which he reaches his expert opinion. But he is not entitled to speculate on a possibility directly relevant to the issue or a fact in issue when the speculation is adverse to the accused person and when there is no evidence which would support a conclusion that the fact was established. … An expert may give evidence that a condition found by him is consistent with a certain cause, but, if the cause is in issue, such expert evidence is only admissible against an accused if there is other evidence to support a finding of that cause. The jury may be invited to draw inferences from the evidence but not to join an expert witness in speculation on possibilities adverse to the accused. 326 In R v Berry,91 Redlich JA (with whom Buchanan and Kellam JJA agreed) explained that:92 an expert will not ordinarily be permitted to speculate as to inferences when there is no evidence that could support such an inference. Where there is such evidence, the expert may testify that such circumstances are consistent with such an explanation. Thus, an expert may be invited to consider whether a hypothesis is consistent with the known facts so long 89 (1977) 15 ALR 103. 90 Straker v The Queen (1977) 15 ALR 103 at 114 per Jacobs J. 91 (2007) 176 A Crim R 195. 92 R v Berry (2007) 176 A Crim R 195 at [69] per Redlich JA (with whom Buchanan and Kellam JJA agreed) citing Straker v The Queen (1977) 15 ALR 103 at 108 per Barwick CJ, at 109 per Gibbs J, at 110 per Stephen J, at 114 per Jacobs J. -- 87 of 90 -- [2023] SASCA 80 The Court 84 as the hypothesis is sought to be drawn from facts which may be established by the evidence and the assessment of such facts is within the witness’s expertise. 327 Justice Redlich also noted that the judgments in Straker v The Queen suggested that where an inference is adverse to the accused, the expert should only be permitted to express such an opinion where it is a probable inference from the known facts.93 328 The broader principles that govern whether the opinion evidence of an expert is admissible at trial are well-established. As explained in R v Dastagir:94 The principles that govern whether the opinion evidence of an expert is admissible at trial can be reduced to two questions. First, whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This question of itself may be divided into two parts: i. whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area; and ii. whether the subject matter of the opinion forms part of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his or her opinion of assistance to the Court. Second, whether the witness has acquired, by study or experience, sufficient knowledge of the subject to render his or her opinion of value in resolving the issues before the Court. 329 We are satisfied that the evidence of Dr James as to the possibility of the offender having sustained a cut during the attack on Mrs Poll was not speculative but had an evidentiary foundation in the results of the post-mortem examination of Mrs Poll. More specifically, the evidentiary basis for his opinion as to the offender possibly having sustained a cut resulting in a free-bleeding injury was drawn from the following: the nature and the number of the injuries sustained by Mrs Poll; the size and nature of the weapon used during the attack; the likelihood that the weapon used would have become covered in blood; the fact that blood acts as a lubricant; and the presence of blood deposited throughout the store which were not attributable to Mrs Poll. 330 Moreover, Dr James’ evidence on this topic did not amount to mere speculation as to a possible explanation from an observed fact where there was no other evidence supporting the explanation. The other evidence referred to above was such that it was open for the jury to infer that it was likely or probable that the offender would have sustained a cut during the attack on Mrs Poll given the attack 93 R v Berry (2007) 176 A Crim R 195 at footnote [45] per Redlich JA. 94 (2013) 118 SASR 83 at [46] per Kourakis CJ, Vanstone and Stanley JJ citing R v Bonython (1984) 38 SASR 45 at 46-47 per King CJ. -- 88 of 90 -- [2023] SASCA 80 The Court 85 consisted of 18 stab wounds inflicted with a 22cm long knife to her back region with some of the wounds penetrating through her body to the floor. 331 Nor did the evidence of Dr James extend beyond his specialised knowledge or field of expertise. There was no challenge made to the expertise of Dr James as a forensic pathologist or to his evidence. It is well within the expertise of a forensic pathologist to comment on the likely mechanisms by which an injury may be inflicted.95 The fact that Dr James, in formulating his opinion that the offender may have sustained a cut during the attack and as to the mechanisms by which this may have occurred, had regard to matters which were within the knowledge or experience of lay persons (such as the likelihood that the weapon used would have become covered in blood during the attack and that blood acts as a lubricant) did not mean that his opinion as a whole was not based on specialised knowledge or experience as a pathologist. As Gaudron J explained in Velevski v The Queen:96 The concept of “specialised knowledge” imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which “is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.” So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. (citations omitted) 332 As to the concession by Dr James of ‘speculation’ in respect of the likelihood of the offender sustaining a cut while inflicting the injuries to Mrs Poll’s scalp, we agree with the respondent’s submission that this was a comment which went to his relative confidence in expressing an opinion as to the mechanism of the ‘slashing injury’ to Mrs Poll’s scalp. Dr James was simply being careful not to overstate his evidence on this topic rather than engaging in ‘speculation.’ 333 For those reasons, we are satisfied that Dr James’ opinion as to the likelihood of the offender having received a cut or free-bleeding injury during the attack on Mrs Poll was neither speculative nor inadmissible. 334 In relation to Sergeant Veldhoen’s evidence that the blood stains were consistent with drip stains from a free-bleeding injury, that evidence was within his established expertise as to blood pattern analysis and were matters on which the jury would not be able to form a sound judgment without assistance. There was unchallenged evidence at trial that blood pattern analysis is a discipline which is sufficiently organised or recognised as a specialised body of knowledge, or experience, to constitute expert evidence. There was also ample material to establish that Sergeant Veldhoen possessed sufficient knowledge and experience as to blood pattern analysis to provide an opinion as to his observations and characterisation of the blood stains, and the inferences to be drawn from them. That evidence was highly probative in explaining the mechanisms by which blood 95 Velevski v The Queen (2002) 187 ALR 233 at [160] per Gummow and Callinan JJ. 96 Velevski v The Queen (2002) 187 ALR 233 at [82] per Gaudron J. -- 89 of 90 -- [2023] SASCA 80 The Court 86 (not attributable to Mrs Poll) came to be deposited at various locations within the newsagency. 335 For those reasons, we are also satisfied that the evidence of Sergeant Veldhoen was admissible as expert evidence. 336 We refuse permission to appeal on Ground 6. Orders 1. We refuse permission to appeal on Grounds 1, 2A, 5 and 6. 2. We grant permission to appeal on Grounds 3.2, 3.3, 3A and 4A but dismiss the appeal. -- 90 of 90 --