SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Keane JA's reasons for dismissing this appeal. 

[2] After considering the whole of the evidence, both at trial and that placed before this Court by the parties, I am not persuaded that the jury's verdict convicting the petitioner, Wayne Edward Butler, of murdering Celia Douty on 1 September 1983 at Brampton Island was unreasonable or that it cannot be supported having regard to the evidence: Mallard v The Queen[1] and s 672A(a) and s 668E(1) Criminal Code 1899.

[3] I have only a few brief observations to add to Keane JA's thorough investigation of this matter.

[4] The Attorney-General referred Mr Butler's petition for a pardon to this Court on 6 April 2005 under s 672A(a).  The matter originally came before the Court for hearing on 29 September 2005.  It was adjourned to allow the parties to obtain further evidence.  The subsequent lengthy delay in the hearing of this matter has been at the request of the parties whilst they fully investigated evidentiary matters believed by them to be relevant. 

[5] The crucial evidence against Mr Butler turns on the results of tests conducted by scientists at what is now the forensic biology section of Queensland's Forensic and Scientific Services mortuary, commonly known as the John Tonge Centre.  The John Tonge Centre specialises in forensic DNA work.  That evidence is that semen stains on the red towel taken from the deceased's body when it was located on 2 September 1983 were ultimately identified as containing the same DNA as in a blood sample voluntarily provided by Mr Butler in 1988.  Some of Mr Butler's blood sample was used to saturate a white calico cloth which was then dried.  It was marked 14467-9 and given the DNA tracking number 12151.[2]  Mr Butler's saliva and blood samples were apparently later discarded without any documentation.  This is obviously concerning.  Samples provided for DNA testing, especially by a suspect in an investigation of a serious criminal offence such as murder, should have been carefully stored and their whereabouts or destruction fully documented.  These matters are now regulated by chs 17 and 18 Police Powers and Responsibilities Act 2000. 

[6] But as Keane JA has demonstrated in his reasons, there is no evidence of any opportunity for Mr Butler's saliva and blood samples to have contaminated any portions of the red towel taken from the deceased's body.  Mr Freney was the supervising forensic scientist at the John Tonge Centre at the time.  He gave unchallenged evidence that in January 1997 he cut an area of stain from the red towel and placed it in a tube which he labelled 14467-2.  Sample 14467-2 was given the DNA tracking number 12150.[3]  Ms Henders (nee Egan) was then a scientist at the John Tonge Centre.  She gave the following unchallenged evidence.  She split the portion of red towel in sample 14467-2 (12150) into two portions which she marked 12150A and 12150B.  She did not confuse dried blood on the white calico cloth (12151) with any portion of red towel; the towel was of a completely different texture to the calico.  She prepared the red towel 12150B for DNA testing.  DNA was subsequently identified in 12150B.  This DNA matched Mr Butler's DNA profile from the dried blood on the white cloth in 12151.  During this appeal hearing, a colour photocopy of portions of the red towel was tendered.[4]  The towel was distinctive in both its bright red colour and its fluffy texture.  A piece of this distinctive red towelling could not be innocently confused with a piece of white calico cloth stained with brownish coloured dried blood.  The sample of white calico containing Mr Butler's dried blood (12151) could not have been innocently confused with the sample of the red towel taken from the deceased's body (12150B).

[7] To put the matter beyond doubt, in early 2006 Ms Sharon Neville, a forensic scientist with the New South Wales Health Department's Division of Analytical Laboratories (DAL) conducted further tests on a different portion of the red towel material taken from the deceased's body.  Mr Freney gave unchallenged evidence that in January 1997 he had cut another piece from the red towel found covering the deceased's body, placed it in a tube and labelled it 14467-7-1.  This sample 14467-7-1 was sent to DAL in early 2006, after the Attorney-General's reference of Mr Butler's petition for pardon to this Court.  Ms Neville prepared sample F14467-7-1 for DNA testing.  DAL's testing of F14467-7-1 did not detect the presence of any blood, but it did detect sperm with a DNA profile matching the DNA profile obtained from 12151, that is, Mr Butler's dried blood on the white calico cloth.  The chance that the sperm from sample F14467-7-1 came from someone other than Mr Butler was less than one in 10 billion.[5] 

[8] In the absence of any competing evidence, the review of the evidence given at trial and in this Court which is fully analysed in Keane JA's reasons allows for only one rational inference.  It is that, as Mr Butler was on Brampton Island for about four hours on 1 September 1983, the day when the deceased was killed, and as Mr Butler's sperm was located on the red towel removed from the deceased's body when it was found on 2 September 1983, Mr Butler murdered the deceased.

[9] This appeal should be dismissed.

[10]  KEANE JA:  In February 2001 Wayne Butler was convicted of the murder of Celia Douty ("the deceased").  Mr Butler appealed against his conviction.  That appeal was dismissed by this Court on 14 September 2001.[6] 

[11]  On 6 April 2005 the Honourable the Attorney-General referred "the whole case" to this Court on Mr Butler's petition for a pardon pursuant to s 672A of the Criminal Code 1899.  Upon such a reference, by virtue of s 672A(a), "the case shall be heard and determined by the Court as in the case of an appeal by a person convicted". 

[12]  The reference to this Court involves a consideration of evidence which was not adduced at Mr Butler's trial.  In order to render a discussion of this evidence intelligible, I must first summarise the circumstances in which Mr Butler was charged and the issues which were agitated at trial and on the appeal to this Court in 2001.  I will state the issues which arise for determination by this Court on the present reference and summarise the new evidence.  I will then proceed to a discussion of the new evidence as it bears upon the resolution of those issues.  

Mr Butler is charged

[13]  The deceased was killed on 1 September 1983 on a beach at Brampton Island.  She was apparently sunbaking at the time.  Her body was discovered on 2 September 1983 in some undergrowth at Dinghy Bay.  Blood spatter at the scene suggested that she had been killed a short distance from where she was found.

[14]  It was evident that the deceased's clothes and some of her personal possessions had been removed from the scene.  They were never recovered.  The deceased had suffered extensive head injuries inflicted by some form of implement.  Her corpse was covered with a red towel. 

[15]  Two days after the murder, Mr Leo Freney, the supervising scientist at the John Tonge Centre for Forensic Sciences of the Queensland Government, took the red towel into his possession at Brampton Island.  According to Mr Freney, the towel was at that time obviously new.  That the towel was new was confirmed by the evidence of Mrs Olive Leet, a friend of the deceased, who gave evidence that the deceased bought the red towel on 31 August 1983.  When Mr Freney took the towel into his possession, it had sand and vegetation adhering to it.  There was a large area of the towel stained with what proved to be the blood of the deceased.

[16]  Shortly afterwards, acid phosphatase ("AP") testing was carried out at the John Tonge Centre on six areas cut out from the red towel by Mr Freney.  This testing indicated the presence of semen stains.  Microscopic examination by Mr Freney confirmed the presence of spermatozoa in the semen stains.  The location of the stains on the towel suggested that the semen stains were produced by masturbation rather than intercourse. 

[17]  Blood grouping ("ABO") tests were performed on the areas of the towel which had proved positive to the AP testing.  This testing was carried out between September 1983 and April 1984.  These tests generally failed to yield a result, but in the case of one piece of cloth taken from the towel, an "O" reaction was obtained. 

[18]  On 1 September 1983 Mr Butler was visiting Brampton Island on a day trip with his wife.  He left his wife for a period of about four hours telling her he was going jogging or walking around the island.  When he returned to his wife he exhibited no signs of distress and there were no visible marks or blood stains on his clothing. 

[19]  As Mr Butler is a "B" secretor, the "O" result of the ABO test tended to exclude him as the likely killer of the deceased.  Nevertheless, Mr Butler remained a person of interest to investigating police.  On 28 September 1988 he was arrested.  He denied any involvement in the crime.  His house was searched, and nothing of relevance to the case was found. 

[20]  On 29 September 1988 Mr Butler voluntarily provided a specimen of his blood and saliva for testing.  He was subsequently released. 

[21]  After an inconclusive inquest into the death of the deceased in 1989 and 1990, Mr Butler remained a person of interest to the police.  In January and February 1997 Mr Freney supervised DNA testing on the semen stains at the John Tonge Centre.  Mr Freney cut out further samples of semen stained cloth from the red towel around the areas where the samples for ABO testing had been taken back in 1983.  The semen stains from these samples were soaked in aqueous solutions.  A process of quantitation was then applied within the laboratory to measure whether sufficient DNA was present in each solution to enable a measurable quantity to be extracted.  Measurable DNA was extracted from one sample of the red towel and various tests were then applied to obtain the DNA profile of the donor of the sperm. 

[22]  On 13 February 1997 testing of the DNA in the semen extracted from a section of the red towel yielded a DNA profile of a male person.  Comparison of this DNA profile with that which had been obtained from DNA in a sample of Mr Butler's blood on 7 February 1997 yielded a match.  The piece of the red towel which gave that result was taken from a piece of cloth cut out by Mr Freney in January 1997 and labelled 14467-2.  The DNA tracking number of this piece of cloth within the John Tonge Centre was "DNA # 12150B".

[23]  On 10 June 1997 Mr Butler was arrested for the murder of the deceased.  He again denied having had anything to do with the death of the deceased and said that he had never met the deceased.

The case at trial

[24]  Mr Butler's trial commenced on 30 January 2001.  The Crown case against him was based upon the DNA evidence and the evidence that he had the opportunity to kill the deceased. 

[25]  Mr Butler's case was that he was not present at the death of the deceased.  His principal contention was that the DNA evidence was not reliable.

[26]  It was not suggested by the defence, either at trial or subsequently, that even if the semen deposited on the red towel was Mr Butler's he might nevertheless be innocent of the murder of the deceased.  That is not surprising.  The head injuries suffered by the deceased were such as to establish that whoever inflicted them clearly intended to kill her or to cause her grievous bodily harm.  There can be no reasonable doubt that whoever killed her was guilty of murder.  Further, if it were the case that the semen found on the towel was truly that of Mr Butler, then his out of court statement that he had never met the deceased can be seen to be inconsistent with the possibility that, whatever contact of a sexual nature occurred between the deceased and Mr Butler on 1 September 1983, occurred with the conscious consent of the deceased. 

[27]  Once it is accepted that Mr Butler had some form of sexual contact with the deceased at about the time of her death, then the hypothesis that someone else was responsible for the attack which killed her may reasonably be discounted.  The circumstances of the contact between Mr Butler and the deceased are peculiarly within his knowledge, but he shed no light on the circumstances of that contact.  Accordingly, the following statement by Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen[7] is apposite:

"… in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."

[28]  On Mr Butler's behalf it was argued at his trial that the DNA results could not reliably establish that it was Mr Butler's sperm which was deposited on the red towel.  This was said to be so by reason of the possibility of contamination of the sample of semen from which the disputed DNA was extracted by the sample of blood or saliva taken from the appellant.  It was suggested that the DNA of the person who actually deposited the semen on the red towel may have become so degraded by the effluxion of time and the circumstances of the storage of the red towel that only Mr Butler's DNA in the hypothetical contaminant showed up on testing.  This hypothesis was refuted by the evidence of Mr Freney and of Dr Bruce Budowle, an independent, internationally recognised, expert in DNA testing.

[29]  Mr Butler did not give evidence at trial nor did he call evidence.  It may be noted in this regard that he did not call Dr Mullis, a Nobel Laureate and the founder of modern DNA analysis, who was available to him both as an adviser and a potential witness.  The defence also had the benefit of advice from Ms Mayne, a forensic scientist, and the services of AGRF, a scientific laboratory in Melbourne.

[30]  While Dr Mullis was not called as a witness at the trial, it appears that he was the source of the hypothesis raised by the defence at trial that the sample of semen taken from the towel may have been contaminated by the sample of blood taken from the petitioner.

The appeal in 2001

[31]  The contamination argument was agitated on appeal on Mr Butler's behalf.  This argument was rejected by the Court on the appeal in 2001 on the basis of the evidence of Mr Freney and Dr Budowle.  The Court summarised this argument, and its reasons for rejecting it, in the following passage:[8]

"As already mentioned there was no dispute that the section of towel from which the disputed DNA was extracted was a section of the towel which had partly covered the body of the deceased. But Mr Callaghan submitted that the condition in which the towel had been kept between the murder and the DNA analyses may have precluded the extraction of DNA from semen on it.

Mr Callaghan submitted that, over the 13½ years between the murder and the DNA analyses, the towel had been in a number of places and that there was no satisfactory evidence of the condition in which, at all times, it had been kept. Consequently, it was submitted, factors such as moisture, sunlight or heat could have so degraded the sample of semen from which the DNA was said to have been extracted that it was impossible to extract DNA from it. This, it was said, explained how, if that section of towel was contaminated by the appellant's blood sample, only the appellant's DNA was shown on testing it. There were, however a number of indications that this was not the case.

In the first place a period of 13½ years is not, in DNA terms a long time. Good results have been obtained 20 or 30 years after the event and Dr Budowle even gave the example of DNA extracted from bones 60,000 years old. If the substance containing it is dry and out of sunlight it will not degrade for many years.

Secondly, there is nothing to indicate that any of the conditions which could have caused even partial degradation, in particular moisture or heat or direct sunlight, existed in respect of the towel at any time. It was dry when Mr Freney took possession of it two days after the murder and it was always kept dry, indoors and, it seems, in a plastic bag, albeit with other things.

Thirdly, one of the advantages of the process by which DNA is extracted, so Dr Budowle said, is that unlike earlier processes such as the ABO process referred to later, partial degradation does not prevent good results from being obtained. That is because, unlike the other processes, it focuses on very small portions of the DNA, a few hundred letters long at the most. These may be mere fragments of DNA.

Fourthly, Mr Freney was able to microscopically observe sperm cells on the section of towel from which the DNA was extracted. And he said that if the cells were microscopically visible there must have been DNA which was extractable. If contamination occurred in that event then, provided the contaminating DNA was more than 10 per cent of the DNA extracted, there would be a mixed profile. That did not occur. For the contaminant to have overwhelmed the DNA from the semen to the point where there was no reading for the latter, that latter would have to have been so degraded or small in amount that it represented less than 10 per cent of the DNA profile. In Dr Budowle's opinion that was a hypothetical possibility but not, in these circumstances, a real one.

And fifthly there was, in any event, what Dr Budowle described as an unintentional control mechanism namely that the tests on 13 February which revealed DNA from the semen sample also revealed DNA in blood on the towel, apparently the blood of the deceased; certainly not that of the appellant. Dr Budowle thought that there was no reason in this case why the semen would degrade at any faster rate than the blood, both having existed in the same environment.

Dr Budowle did not think that degradation was a realistic possibility and there is no reason why the jury should not have accepted his evidence. Those conclusions are, subject to one matter, sufficient to reject any challenge to the reliability of the DNA evidence and consequently to require dismissal of the appeal."

[32]  On the appeal in 2001 the Court also addressed the implications of the 1983 ABO tests which appeared to exonerate Mr Butler.  The Court referred to the 1983 test and went on to say:[9]

"That test was said to reveal that semen on the towel indicated that it came from a group O secretor. The appellant was a group B secretor. It was therefore assumed, before DNA tests were done in February 1997, that the semen could not be his.

All six places on the towel where semen was found were tested. Only one of them gave a result and it was that one which yielded a group O secretor reaction. However a group O secretor reaction can be obtained from group A blood or group B blood if either is exposed to moisture, ultraviolet light or bacteria or if, for any other reason, the sugars in the sample break down. Some of these are problems which affect DNA testing, but not to anything like the same degree, because DNA is extracted from cells whilst ABO testing is done on bodily fluids; and because cells have very strong walls they are much less prone to degradation and, as mentioned earlier, DNA may be extracted even where degradation has occurred.

Moreover the deceased was group O blood type and the likelihood was that, like most people she was a secretor so that the ABO test result could have revealed her secretion, not that of the depositor of the semen. Of the six places where the test was performed, the only one which yielded a result was from a section where the spermatozoa count was weakest.

For these reasons the jury was justified in rejecting the ABO test as casting doubt on the reliability of the DNA tests."

The issues involved in the reference to this Court

[33]  Mr Butler's reference to this Court again seeks to cast doubt on the reliability of the DNA evidence adduced at the trial. 

[34]  It should be noted immediately that in Mallard v The Queen,[10] the High Court stated that this Court, when determining a reference under s 672A of the Criminal Code, may "derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it …".  This Court is not called upon to re-adjudicate upon any ground of appeal which has been previously determined "unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable".[11]

[35]  In this regard, the decision of this Court in 2001 rejected the "contamination" hypothesis in relation to the DNA test which inculpated Mr Butler.  It is not sought on this reference to suggest that the decision of the Court on that occasion was not justified by the evidence then before the Court, but on the present reference to this Court, a further attempt is made to cast doubt upon the DNA evidence which established that the semen obtained from the red towel belonged to Mr Butler.  This attempt is based upon the evidence of Professor Barry Boettcher, an internationally recognised biological scientist. 

[36]  In three lengthy reports which were tendered in evidence in this Court and in his oral evidence, Professor Boettcher offers the opinion that, because of the conflict between the ABO testing and the DNA testing, the DNA testing must be regarded as unreliable.  Professor Boettcher also criticises the testing procedures and conclusions of the John Tonge Centre, and particularly the work of Mr Freney and Ms Anjali Henders, another scientist involved in the DNA testing at the John Tonge Centre in early 1997.  Professor Boettcher's criticisms seek to undermine the reliability of the evidence, which was accepted at trial, of the DNA match between Mr Butler's DNA and the DNA found in the semen on the red towel.  In particular, Professor Boettcher puts forward the contention that the DNA testing at the John Tonge Centre in early 1997 actually confused the DNA from a sample of Mr Butler's blood with DNA extracted from a semen stain on the red towel.

[37]  It is submitted by Mr Cavanagh of counsel, who appeared in this Court on Mr Butler's behalf, that "an analysis of the evidence given at trial, and for the reasons set out in the reports of Professor Boettcher, the evidence given by Freney at trial was potentially misleading and the conclusions scientifically flawed." 

[38]  Section 672A of the Criminal Code provides that upon a reference to this Court "the case shall be heard and determined … as in the case of an appeal by a person convicted".  As explained by the High Court in Mallard v The Queen:[12]  "the words 'the whole case' embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or previously adduced …". 

[39]  Section 671B(1)(c) of the Criminal Code provides that on an appeal this Court may "receive the evidence … of any witness … who is a competent … witness".  At this point it is convenient to consider the bases on which evidence additional to that tendered at trial may be received on an appeal to this Court. 

[40]  In Rinaldi v The State of Western Australia,[13] Steytler P, with whom Wheeler and Pullin JJA agreed, succinctly summarised the effect of the authorities which bear upon the approach of a court of appeal to the reception and use of new evidence.  His Honour said:

"There is, under the common law, a well-established distinction between 'new' and 'fresh' evidence. New evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered: see Mickelberg v The Queen (2004) 29 WAR 13 at [410]–[411]; Beamish v The Queen [2005] WASCA 62 at [9].

The rationale for setting aside a conviction on the ground of fresh evidence was said by Toohey and Gaudron JJ in Mickelberg v The Queen (1989) 167 CLR 259 at 301 to be that the absence of that evidence from the trial was, in effect, a miscarriage of justice (see also Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410; Beamish at [10]). Different considerations have been said to apply in the case of new evidence. In Lawless v The Queen (1979) 142 CLR 659 at 675–676 Mason J said:

'However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.'

In Mickelberg, at 301, Toohey and Gaudron JJ said:

'There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510 at pp 516–517, per Barwick CJ …'

It has been suggested that the distinction between fresh and new evidence is not as significant as it once was: see, for example, Nolan v The Queen; unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement. However, as this Court has noted in Easterday v The Queen (2003) 143 A Crim R 154 at [204] and in Beamish at [13], the distinction is one which is soundly based in principle and which continues to be recognised, even though there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials: see Ratten v The Queen (1974) 131 CLR 510 at 517; Mickelberg (High Court) at 301; De La Espriella-Velasco v The Queen (2006) 31 WAR 291 at [150]–[153].

Where the evidence is fresh, the test appears to be whether there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted the accused: see Gallagher, at 399, 402 and 421; Mickelberg, at 273, 275 and 302; Beamish at [14]."

[41]  It is apparent from the authorities discussed by Steytler P that the reason for the difference in the approach taken by an appellate court to evidence which is truly "fresh" as opposed to merely "new" is that where evidence is "fresh", in the sense that it could not have been adduced at trial by the exercise of due diligence on the part of the defence, the accused has not had the benefit of the verdict of a jury fully and fairly informed by all the available evidence.  For that reason an appellate court may order a retrial where the fresh evidence is such as to give rise to a real possibility that it might lead to a verdict of acquittal by the jury.  Indeed, if on the fresh evidence considered with the evidence already adduced a verdict of guilty would inevitably be set aside as unreasonable, an appellate court might properly enter a verdict of acquittal itself.[14] 

[42]  On the other hand, where the new evidence could and should have been adduced at trial, the verdict of the jury was relevantly fully and fairly informed by all the evidence which the parties chose to make available.  In such a case an appellate court should set aside the jury's verdict only if the court of appeal concludes on the whole of the evidence before it that a reasonable doubt attends the conviction so that it cannot be allowed to stand.

[43]  Mr Cavanagh, in his first set of written submissions, argued that Professor Boettcher's evidence should be regarded as "fresh evidence".  In his second set of written submissions, Mr Cavanagh argued that the distinction drawn in the authorities between "fresh" evidence and "new" evidence is subsumed in this case in the broader question whether Mr Butler's conviction involved a miscarriage of justice.  This submission could not be accepted without qualification because it is apparent from the authorities discussed in the passage cited from Rinaldi v The State of Western Australia that the extent of this Court's intervention to correct an apprehended "miscarriage of justice" may differ depending on whether evidence is "fresh" or only "new". 

[44]  In oral argument in this Court, Mr Cavanagh advanced alternative submissions.  He contended first that if the totality of the evidence now adduced, both at trial and on the reference to this Court, establishes in the mind of the Court a reasonable doubt as to whether Mr Butler was guilty of the murder of the deceased, then the conviction should be set aside and Mr Butler should be acquitted.  On this argument, the issue presented for determination by this Court is whether the new evidence demonstrates to this Court Mr Butler's innocence or raises a reasonable doubt as to his guilt.[15]  On this approach, the function of this Court is to consider the new evidence in conjunction with the evidence adduced at trial in order to determine whether Mr Butler is either innocent, or that there is reasonable doubt as to his guilt, so that the verdict of guilty cannot stand.[16] 

[45]  Alternatively, Mr Cavanagh contended that there is "fresh" evidence available to this Court, that is, credible evidence which could not with reasonable diligence have been adduced at trial which gives rise to a significant possibility that a reasonable jury would have acquitted the accused.  On this view, the issue for determination by this Court is whether a new trial should be ordered because credible evidence is now available which could not with reasonable diligence have been made available at trial and which might lead a jury to entertain a reasonable doubt as to Mr Butler's guilt. 

[46]  Mr Martin SC, who appeared on behalf of the respondent, submitted that the new evidence could have been adduced at trial, and in any event it was not such as to give rise to any doubt that Mr Butler was duly convicted.  Further, whatever might be said as to doubts attending the original DNA testing in 1997, further DNA tests conducted in 2006 conclusively establish that Mr Butler was the donor of the semen on the red towel.  Mr Martin also argued that the results of further DNA tests in 2006 and the John Tonge Centre's results in 1997 were mutually supportive.Mr Martin submitted that whether the evidence now before this Court is characterised as "fresh" or merely "new", it is clear, beyond reasonable doubt, that the semen on the red towel is Mr Butler's.  As a result, so Mr Martin submitted, the contention that the conviction of Mr Butler involved a miscarriage of justice must fail and the appeal must be dismissed.

[47]  In further written submissions made with the leave of the Court after the conclusion of oral argument, Mr Cavanagh contended that the evidence of Professor Boettcher was "fresh" since it "was not provided at trial".  Mr Cavanagh submitted that the "reasonable diligence test is met because is [sic] could not reasonably be expected of an accused to be exhaustive in seeking expert opinion".  This argument is made without any evidentiary basis.  It is entirely inadequate to satisfy the "reasonable diligence" test of fresh evidence.  There is no evidence at all from Mr Butler's side to show what steps were taken to enquire whether evidence of the kind now given by Professor Boettcher was available at trial.  To say this is not to adhere to an unduly demanding standard:  after all Professor Boettcher has been available to assist Mr Butler since some time in 2004, and there is nothing to explain why he could not with reasonable diligence have been made available to Mr Butler at the time of the trial.  Furthermore, Mr Butler was able to engage the assistance of Dr Mullis, an internationally known expert, for his defence at trial.  It would be wrong for this Court to conclude, without an evidentiary basis, that the evidence of Professor Boettcher could not have been made available at trial. 

[48]  In the circumstances I do not think that it is possible to regard Professor Boettcher's reports and evidence as "fresh" evidence.  The question for this Court is, therefore, whether on the totality of the evidence now before it, this Court is led to entertain a reasonable doubt as to Mr Butler's guilt.

The new evidence

[49]  Professor Boettcher's evidence is not the only new evidence which this Court must consider.  Professor Boettcher's initial report was dated 9 November 2004.  It was this report which formed the basis for Mr Butler's petition which resulted in the reference to this Court on 6 April 2005.  The reference to this Court came on for hearing for the first time on 29 September 2005.  By that time the respondent had filed a number of affidavits in answer to Professor Boettcher's initial report.  In this regard, the respondent filed affidavits by Mr Robert Goetz, Ms Jessica Frances Lambert (exhibiting a statutory declaration by Thu Van Nyugen), Ms Susan Margaret Miles (exhibiting a statutory declaration by Ms Anjali Henders) and two affidavits by Mr Freney. 

[50]  When the matter came on for hearing in this Court on 29 September 2005, an application was made on Mr Butler's behalf for an adjournment of the hearing of the reference in order to enable further DNA testing to occur.  The Court granted that application.  In the three and a half years that have subsequently elapsed, the parties engaged in further testing and in the preparation of further evidence. 

[51]  Professor Boettcher provided two further reports, dated 10 January 2007 and 6 November 2008 respectively.  These later reports contain much of the same material as was contained in Professor Boettcher's original report together with comments upon the further evidence filed by the respondent.

[52]  The tests initially undertaken after the abortive hearing in September 2005 were of low numbers of individual spermatozoa remaining on slides prepared at the time of the earlier testing of the red towel.  These slides were subjected to testing by Professor Findlay, the former Chair of Molecular Diagnostics in the School of Biomolecular and Biomedical Science at Griffith University, by a technique known as "low-copy DNA profiling".  Professor Findlay's opinion was that these samples were so badly degraded that meaningful conclusions could not be drawn from them. 

[53]  Professor Boettcher, in his report of November 2008, interpreted the results of Professor Findlay's 2005 testing as excluding Mr Butler as the donor of the sperm in the samples tested.  Professor Findlay responded to Professor Boettcher's report rejecting this interpretation.  Professor Findlay said that the results of his testing were, at best for Mr Butler, inconclusive.  He strongly disagreed with Professor Boettcher's conclusion that the results of his testing were apt to exonerate Mr Butler.

[54]  Further DNA tests were carried out in February 2006.  This testing was undertaken with respect to different fragments of the same area of cut out towel used by the John Tonge Centre in the original pre-trial DNA testing in early 1997.  This new testing was carried out independently of the John Tonge Centre by Ms Sharon Neville of the Division of Analytical Laboratories of New South Wales. Ms Neville's testing of the samples of semen stained towel yielded a DNA profile.  Ms Neville certified the results of her testing on 31 March 2006.  Ms Neville also swore an affidavit on 4 April 2007. 

[55]  The circumstances of the testing in 2006 were described in affidavits by Samantha Joanne Cave and Suzannah Louise Gadsden (exhibiting a Certificate of Analysis by Ms Neville) which were sworn on 13 and 16 April 2007 respectively.  Ms Cave said in her affidavit that she compared the DNA profile obtained by Ms Neville from a sample of red towel designated F14667-7-1 and found it to be the same as the DNA profile obtained from the reference sample of Mr Butler's blood.  Ms Cave said that "the probability of this DNA profile occurring if the DNA present on the piece of red towel (F14467-7-1) had come from someone other than Wayne Butler is approximately one in 200 thousand billion (based on Queensland Caucasian data)".

[56]  Professor Boettcher's report of 10 January 2007 prompted a further round of affidavits from the respondent's side.  These further affidavits were by Mr Freney, Ms Anjali Henders, Professor Ian Findlay, Ms Neville and Mr Goetz.  These affidavits were filed in March and April 2007.  Professor Boettcher responded in turn to these affidavits in a further report dated 6 November 2008.

[57]  In this Court Professor Boettcher gave some oral evidence in addition to that contained in his three reports.  He was cross-examined at some length.  A number of witnesses for the respondent were also cross-examined in respect of their evidence, namely Mr Goetz, Ms Neville, Ms Henders and Mr Freney. 

[58]  Neither party objected to this Court receiving and acting upon any of this new material as evidence for the purpose of the determination of the reference.  Accordingly, this Court must deal with that evidence.  For the sake of completeness, however, I note that the approach of the parties relieved the Court of the need to decide whether any or all of the new evidence is strictly admissible according to the rules of evidence. 

[59]  To the extent that the evidence of Professor Boettcher consists of his opinions about the relative merits of ABO and DNA testing, it may be accepted that his evidence is admissible in accordance with the rules of evidence.  But insofar as Professor Boettcher's evidence seeks to establish that the evidence of the scientists on the respondent's side is not to be believed in relation to the processes of testing which they claim to have undertaken, it is not obvious that this material could have been admitted into evidence over objection. 

[60]  In criticising aspects of the record-keeping and other processes within the John Tonge Centre, Professor Boettcher was not expressing an opinion about matters within the area of his expertise.  Professor Boettcher is not an expert in the forensic analysis of field samples.  Rather Professor Boettcher was giving an opinion about the reliability of the evidence of other witnesses based upon inferences which might arguably be drawn from that evidence in the light of a study of the documentary records of the John Tonge Centre.  This kind of opinion is not admissible as expert evidence.  In HG v The Queen, Gleeson CJ said:[17]

"To paraphrase what was said by Dixon CJ in Clark v Ryan ((1960) 103 CLR 486 at 492) about the expert witness in that case, the evidence the defence sought to lead … really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely.

This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined … to opinions which are wholly or substantially based on their specialised knowledge.  Experts who venture 'opinions' (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted." 

[61]  In addition, while the hypotheses raised by Professor Boettcher as to the conduct of the scientists involved in the DNA testing processes in the John Tonge Centre might have been put to those witnesses in cross-examination, it is difficult to see that the defence could, in strictness, be allowed to use Professor Boettcher's evidence to contradict the answers given by those witnesses.  It is at least arguable in this regard that Professor Boettcher's evidence is relevant, if at all, only to the credibility of the prosecution witnesses,[18] and on that basis it would not be admissible.  On the other hand, it might be argued that this evidence goes, at least in a general way, to an issue, namely, the reliability of the DNA testing within the John Tonge Centre.  As I have said, however, the approach taken by the parties means that it has not been necessary for the Court to pursue these questions to a conclusion. 

[62]  On behalf of the respondent Mr Martin deliberately declined to object to the admission of any part of Professor Boettcher's evidence.  Rather, Mr Martin sought to deploy aspects of Professor Boettcher's evidence in which he exhibited a willingness to stray beyond his area of expertise as a basis for mounting a spirited attack upon the reliability of Professor Boettcher's evidence.[19] 

[63]  Mr Cavanagh, for his part, did not seek to limit his client's reliance on Professor Boettcher's reports to those parts which were strictly admissible or to argue that any of the evidence adduced by the respondent should not be received by this Court. 

[64]  A determination as to whether the evidence given by the witnesses called by the respondent at the original trial and in this Court is sufficiently reliable to be satisfied of Mr Butler's guilt beyond reasonable doubt necessitates a consideration of the relative weight which this Court should place upon the evidence given by Professor Boettcher and that given by the respondent's witnesses.  In an endeavour to achieve a coherent appreciation of this abundance of new evidence, it is, I think, best to attempt to summarise Professor Boettcher's contentions and then to consider those contentions in the light of Professor Boettcher's evidence and the responses which it has provoked from the respondent's side. 

Professor Boettcher's contentions

[65]  Professor Boettcher's principal thesis was (and remains) that the ABO testing of the semen stains taken from the red towel in 1983 was decisive in excluding Mr Butler as the donor of the semen found on the towel.  That testing, he says, demonstrated that the semen came from a man of blood group O.  Mr Butler was not of that blood group; and, accordingly, there must be a flaw in the DNA evidence which suggests that Mr Butler was the donor of the semen on the red towel.

[66]  Professor Boettcher went on to attempt to identify that flaw.  In relation to the 1997 testing at the John Tonge Centre, semen from the towel and Mr Butler's blood were tested in the same batch of samples.  The tube containing a sample of the semen-stained material cut from the red towel was given the DNA tracking number 12150.  Mr Freney's evidence at trial was that prior to the process of quantitation of DNA from the semen stain on the piece of red towel labelled 14467-2, the cloth was split and the separate pieces of cloth placed into two tubes designated 12150A and 12150B.  The tube given the DNA tracking number 12151 contained a sample of Mr Butler's reference blood.  This blood sample was a blood saturated white cloth.  The DNA match was established between the DNA extracted from the semen on the towel in the tube 12150B and the DNA in the reference blood of Mr Butler in tube 12151.  Professor Boettcher's thesis is that it was the tube 12151 containing Mr Butler's blood which was split into 12150A and 12150B.

[67]  Professor Boettcher's contention is based upon his examination of the laboratory records of the John Tonge Centre.  This examination led him to suggest that, when three tubes were produced from the semen stain and Mr Butler's blood sample, there was an error in the laboratory resulting in erroneous labelling of the tubes so that the tube designated 12150A was from the semen stain and both tubes 12150B and 12151 were from Mr Butler's blood.  Professor Boettcher contends that 12150B and 12151 have given consistently identical DNA profiles because they are both samples of Mr Butler's blood.

[68]  I turn now to a consideration of the evidence which bears upon Professor Boettcher's contentions.

The ABO testing

[69]  The point in relation to the exculpatory result of the ABO grouping carried out in 1983 was raised at the trial and on the appeal to this Court in 2001.  As I have said, the ABO testing in 1983 appeared to exonerate Mr Butler on the basis that semen taken from the towel was identified as coming from a group O secretor whereas Mr Butler is a group B secretor.  In his oral evidence Professor Boettcher emphasised that the 1983 ABO result was the strongest possible test result obtainable using ABO group testing. 

[70]  At the trial in 2001 the ABO grouping result consistent with Mr Butler's innocence was reconciled by Mr Freney and Dr Budowle with the DNA results, in a way consistent with Mr Butler's guilt, on a number of bases.  First, there was evidence that a group O secretor reaction can be obtained from a group A or B sample if the sample degrades as a result of exposure to moisture, ultra violet light or bacteria or if, for any other reason, the sugars in the sample break down.  At the trial, Dr Budowle said in relation to the ABO system that there can be:

"variations in the kinds of molecules in the whole test that can degrade at different rates.  Also the different forms of blood groups may be in different concentrations, so you may detect one of them and not see the other on the way the tests were designed.  You have to be very careful in your interpretation of the evidence." 

[71]  The evidence at trial was that because DNA is extracted from body cells rather than bodily fluids, DNA testing is not as susceptible to these problems as ABO testing.  Body cells have strong walls and are less prone to degradation, and DNA may be extracted even when degradation has occurred. 

[72]  A second basis for reconciling the 1983 ABO result and the 1997 DNA result is that the deceased's blood group was O.  It is therefore possible that the ABO test revealed the existence of the deceased's O group secretion as opposed to the blood group of the depositor of the semen.  In this regard, Mr Freney's evidence was that, of the six places on the towel which were tested with ABO grouping, the only one which yielded a result was from a section where the spermatozoa count was weakest. 

[73]  Professor Boettcher counters by observing that microscopic examination did not reveal any vaginal cells so that the material could not have come from the deceased.  But Professor Boettcher's observation does not exclude the possibility that the material was the sweat of the deceased.  In his oral evidence in this Court, Professor Boettcher said that sweat is not as rich a source of the ABO blood group compounds as semen, but he conceded that it is possible that the semen in the area of the towel which gave the O blood grouping did not contain any blood group components so that the O blood grouping could have been from the sweat of the deceased.

[74]  There is now further, and compelling, support for the view that the results of ABO testing in 1983 were not apt to cast doubt on the results of the DNA testing in 1997.  That support comes from the evidence of Mr Robert Goetz.

[75]  Mr Goetz is a senior forensic biologist who has been the officer in charge of the Forensic Biology/DNA Laboratory in New South Wales for 20 years.  He is a vastly experienced forensic analyst.  Mr Goetz examined the case notes produced by Mr Freney in relation to Mr Butler's tests.  Mr Goetz is of the opinion that Professor Boettcher is incorrect in his assertion that the 1983 blood grouping tests proved that the person from whom the semen originated was of the blood group O.  He says that if the ABO result which was obtained on the towel had been obtained by the New South Wales Forensic Biology Laboratory, it would have been reported as "inconclusive" rather than as of the blood group O. 

[76]  Professor Boettcher (and Mr Cavanagh) emphasised that the blood test result was "a strong result"; but Mr Goetz explained that such a result can be obtained from individuals of A or B blood groups for a number of reasons including the degradation of the blood sample.  Professor Boettcher in his oral evidence said that while blood group B may degrade to exhibit the characteristics of blood group O, the blood group B characteristics are not destroyed entirely.  But Mr Goetz' research and experience leads him to the opinion that, in the case of weak semen stains, reliable results are more likely to be obtained by DNA testing than by ABO grouping.  A study of criminal case work to which Mr Goetz referred reported that in 58 per cent of cases where semen was detected the "ABO type found was that of the victim". 

[77]  Mr Goetz said that where weak semen stains are subjected to the blood grouping tests performed by Mr Freney in 1983 and 1984 there is a 25 per cent or "one in four" chance that a blood group B semen donor would be mistyped as group O.  Professor Boettcher, in his report of January 2007, sought to use that opinion to suggest that, because Mr Freney performed the ABO grouping test three times, the probability that it would produce an erroneous result would be ¼ x ¼ x ¼, ie only "one in sixty-four".  Mr Goetz noted in his response to Professor Boettcher's suggestion:

"This represents the inappropriate application of a basic mathematical principle known as the product rule.  Using the product rule, the probability of each single event is multiplied together to give the probability of a combination of events occurring.  However, to apply the product rule, the single events must be independent of each other.  As the same stain is being tested each time, these are not independent events.  The stain may be expected to give the same result each time and the product rule calculation is therefore not appropriate in this situation." (emphasis in original)

[78]  In the course of cross-examination in this Court, Professor Boettcher accepted the proposition that DNA testing is apt, "in principle, to allow us to conclude that it's wrong to infer that the ABO test excluded [Mr Butler]" as a suspect.  In Professor Boettcher's report of January 2007, he accepted that unknown elements can affect the accuracy of ABO grouping.  Mr Goetz agreed that this is so, and went on to make the point that it is precisely for this reason that DNA testing has "completely superseded ABO grouping even in samples from vasectomised individuals even where the likelihood of a DNA result is fairly small". 

[79]  On the basis of the totality of the evidence, I do not accept that the ABO grouping result in 1983 casts doubt upon the accuracy of the DNA testing in early 1997.  The view put forward by Professor Boettcher does not accord with that of the other experts who have given evidence.  It is a view which is undermined by the concession Professor Boettcher made in cross-examination.  And while Professor Boettcher's view is within his area of expertise, for reasons which I will set out later, I do not have sufficient confidence in his independence as a witness to prefer his opinion to that of Mr Freney, Dr Budowle, and Mr Goetz.

[80]  Accordingly, I am unable to accept the first step in the argument put on Mr Butler's behalf, viz, that the DNA testing by the John Tonge Centre in 1997 must be flawed because it is inconsistent with the ABO testing in 1983.

[81]  I turn now to consider Professor Boettcher's explanation that the 1997 testing was flawed as a result of the mixing up of the semen stains and Mr Butler's reference blood.

The creation of tubes 12150A and 12150B

[82]  As to the DNA testing procedures which were adopted within the John Tonge Centre in 1997, Professor Boettcher's criticisms focus upon laboratory notes made by Mr Freney and Ms Henders in relation to the DNA testing at that time. 

[83]  The reliability of the evidence Mr Freney gave at the original trial was attacked by Professor Boettcher because Mr Freney made no mention at trial of the laboratory sheets which record, inter alia: "from AE's notes, seems that [semen] sample was split into two portions called 12150A and 12150B", and "critical extractions - only Anj can tell us about this".  The AE "Anj" referred to in this note is Anjali Henders (nee Egan).  In fairness to Mr Freney it should be said that, because no issue was raised at trial about the splitting of the semen sample in tube 12150, there was no occasion for Mr Freney to address this point at trial.  Professor Boettcher was, however, disposed to suggest that this note revealed that Mr Freney was beset by doubts as to whether it was the semen sample on the red towel or the blood sample which was split. 

[84]  Professor Boettcher made much of a note made by Ms Henders in a worksheet relating to the quantitation process carried out by her on "23-24/1/97".  This worksheet listed two columns of "sample type".  In the left-hand column were samples of blood and cells.  The last sample in this list was sample DNA No 12151 "Ref Bl. Butler".  In the right-hand column were listed samples of sperm and as sample DNA No 12150 "Semen Towel".  There was one other sample type listed in the right-hand column but that can be ignored because it is clearly irrelevant for present purposes.  Professor Boettcher focused upon the absence of a note that the DNA sample No 12150 (which was described as "Semen Towel") was split into samples 12150A and 12150B.  On the basis of the absence of a note recording the splitting of the material in sample 12150 into 12150A and 12150B, Professor Boettcher drew the inference that Ms Henders mistakenly split sample 12151 and numbered the tubes produced from it 12150A and 12150B.  Ms Henders gave evidence in this Court which explicitly refuted this inference.

[85]  Ms Henders had not been required to give evidence at Mr Butler's trial in 2001.  In her evidence in this Court, she referred to her extraction worksheet of "23-24/1/97" which recorded the extraction process for both samples.  She said that, although tube 12150 and tube 12151 were numbered sequentially, they were not processed sequentially because blood samples were held in one rack and semen stains in another.  Sample 12151 was processed and placed in an incubating water bath before sample 12150 was removed from the container. 

[86]  Ms Henders says that it was she who took the decision to split the piece of red towel which was in tube 12150 because it was very large.  If she had placed the whole of that piece of material into the processing test tube the surface area exposed to the solutions would have been reduced so as to compromise an effective washing out of the semen.  Accordingly, Ms Henders split the red towel sample into two parts.  She cut the piece of towel using sterilised tweezers and scalpel in a sterile Petri-dish.  One piece of the towel was placed in a test tube labelled 12150A.  She then placed the second piece of the towel into the tube which she labelled 12150B.  These tubes were then treated as independent samples for the rest of the DNA profiling process.  Ms Henders gave evidence that she transferred aqueous material from tubes 12150A and 12150B onto slides for microscopic examination. 

[87]  Professor Boettcher sought to suggest that the evidence of Ms Henders and Mr Freney should not be accepted.  He raised a number of contentions in that regard.  First, in relation to tube 12150A, the quantitation process revealed the presence of DNA at a concentration of 1 nanogram/10 microlitres (1ng/10μl), while the result in relation to tube 12150B was 10ng/10μl.  Professor Boettcher contended that this showed that it was not possible for the DNA samples in tubes 12150A and 12150B to have come from the same source. 

[88]  The difference in DNA quantities derived from the 12150A and 12150B is readily explicable, as Mr Freney said, on the basis that the semen stained cloth in 12150A had less semen on it than the other piece of cloth.  If it was, as Professor Boettcher suggests, the blood sample in 12151 which was split into 12150A and 12150B, the concentrations of DNA would have been precisely the same for 12150A and 12150B.  Professor Boettcher's speculation is plainly without substance. 

[89]  Professor Boettcher also argued that the quantitation process showed that the sample in tube 12151 also had a DNA measurement of 10ng/10μl.  Professor Boettcher argued that there could not have been enough sperm on the towel to give a DNA result of 10ng/10μl.  Mr Freney says that the different quantitation results between tubes 12150A and 12150B are explicable on the basis that the semen deposited was not distributed evenly between the two pieces of cloth.  There is no reason to doubt Mr Freney's evidence in this regard.  I have no difficulty accepting that the quantitation process yielded measurable DNA in sample 12150B while no such result occurred in relation to 12150A.  The obvious reason is that the quantity of semen-stained material containing DNA differed as between the two samples.

[90]  Professor Boettcher says that at least 15,000 sperm would be required to produce the quantity of sperm indicated in tube 12150B, and draws attention to Mr Freney's notes which indicate that the area from which the semen was extracted include only a small number of sperm.  In relation to Professor Boettcher's observation that the number of sperm necessary "to provide a sample with a DNA concentration of 10ng/10μl is at least 15,000", Mr Freney explained that the number of 15,000 spermatozoa:

"is really quite small in terms of how many may have been present.  There can be a hundred million spermatozoa (this can vary) per ml of ejaculate, there being about 3 ml per ejaculate.  The number, 15,000, pales into insignificance compared with the total, but is nevertheless more than an adequate number for a DNA test.  Even accepting the proposition that 15,000 sperm were necessary to give 10ng/10μl it is not at all surprising that 15,000 were present." 

I find nothing implausible in Mr Freney's explanation.

[91]  It is important to appreciate, as it would seem that Professor Boettcher did not, that Ms Henders was dealing with samples of cloth – one with semen stains, the other with Mr Butler's reference blood.  DNA had not yet been extracted from these samples when Ms Henders commenced the quantitation process. 

[92]  Professor Boettcher's suggestion is that the sample designated 12151 was split after DNA had been extracted from the semen stain on the red towel material.  It is on this basis that Professor Boettcher explains the similarity in quantitation between 12150B and 12151 (10ng/10μl).  But on the hearing of the reference, photographic evidence was tendered of slides containing material from tubes 12150A and 12150B before the process of chemical extraction of DNA had begun.  Professor Boettcher was obliged in cross-examination to accept that the photographic evidence showed that 12150 had been split before DNA extraction had occurred.  Professor Boettcher was also obliged to admit that he could think of no sensible reason why anyone would divide the sample of Mr Butler's reference blood in 12151 into two whereas there was a sensible reason for dividing the sample of towel in 12150 into two.

[93]  A further difficulty with Professor Boettcher's argument is that the material in 12150B and 12151 behaved differently upon processing in that 12151 yielded a positive DNA result whereas 12150B did not yield a positive result until Bovine Serum Albumin ("BSA") was added, at which point a positive DNA result was obtained.  If, as Professor Boettcher suggests, the material in 12150B and 12151 was exactly the same, ie DNA extracted from Mr Butler's blood, then this different behaviour is inexplicable.

[94]  I pause here to note that in the final submissions made on Mr Butler's behalf, reference is made to Mr Freney's evidence that he had no knowledge of records of tests being done on Mr Butler's saliva at the John Tonge Centre.  Reference to the records suggested that some testing of Mr Butler's saliva had occurred.  But Mr Freney's failure of memory in this regard casts no doubt on his reliability on matters material to the case against Mr Butler. 

[95]  The possibility that the piece of red towel in tube 12150B was contaminated by a sample of Mr Butler's saliva was litigated at the original trial.  It was clearly resolved against Mr Butler.  There was no basis in the evidence at trial for the possible contamination of the towel by Mr Butler's saliva even though the bag in which the red towel was returned to Mr Freney after the inquest may have been unsealed.  And, in any event, Dr Budowle gave evidence at the trial that if Mr Butler's saliva contaminated the DNA in the sperm from a different donor on the red towel, it would be apparent on DNA testing that the DNA of two donors was being examined.

[96]  There is, of course, no legal burden upon Mr Butler to adduce evidence which raises a doubt as to the reliability of the DNA evidence against him.  The ultimate question is simply whether the prosecution has proved his guilt beyond reasonable doubt, and in coming to a conclusion upon that question the Court must consider hypotheses raised by the evidence which are consistent with his innocence.  But insofar as the raising of an hypothesis consistent with Mr Butler's innocence depends on persuading the tribunal of fact that seemingly disinterested scientific witnesses have acted dishonestly or in a manner calculated to inflict callous harm upon Mr Butler, the practical burden of raising such an hypothesis is heavier than would be the case if the suggestion of error was based upon an innocent misunderstanding or faulty memory.[20]

[97]  I regard Mr Freney as an honest and reliable witness.  I also accept Ms Henders as an honest and reliable witness.  Ms Henders' evidence makes it impossible to entertain Professor Boettcher's suggestion that she mistakenly tested Mr Butler's reference blood unless one is prepared to entertain the possibility that Ms Henders was being deliberately untruthful in her evidence.  Her evidence in this regard could not be mistaken but honest:  it is not the kind of mistake which could occur through honest inadvertence. 

[98]  In truth, however, it is difficult to see how the mistake which Professor Boettcher propounds could have occurred at all.  The obvious inference from the creation of samples described as 12150A and 12150B is that they were both derived from sample 12150 which was quantitated quite separately from sample 12151.  Ms Henders' evidence that she performed the tests on the samples of blood and cells before performing the tests on the samples of sperm is perfectly plausible. 

[99]  Ms Henders acknowledged that she should have made a record of her decision to split sample 12150.  It may be that she did, and that the relevant notebook has been lost.  However that may be, the absence of a notation to the effect that sample 12150 was split into samples 12150A and 12150B is not a compelling basis for the inference that Ms Henders confused the sample of Mr Butler's reference blood with the red towel material in sample 12150.

[100]  In summary, in relation to the issue concerning the creation of tubes 12150A and 12150B, I do not consider that the arguments advanced by Professor Boettcher afford reason to doubt the reliability of the DNA testing at the John Tonge Centre.

General criticism of the DNA testing process

[101]  Professor Boettcher offers general criticism of the processes used in the DNA testing within the John Tonge Centre, citing notes of the processes as evidence of scientific incompetence and lack of understanding on the part of those involved in or supervising these processes.  I have already addressed his specific concern that his examination of Ms Henders' notes of the process does not reveal a note of the decision to split the tube 12150 into 12150A and 12150B. 

[102]  Mr Cavanagh, perhaps recognising the difficulty of seeking to support Professor Boettcher's thesis that a mix-up in fact occurred in the DNA testing process in 1997, emphasised in his final submissions that even if the Court could not be persuaded that it was a possibility reasonably open on the evidence that Ms Henders did actually mistake the contents of sample 12151 for 12150B, the Court could nevertheless not be satisfied beyond reasonable doubt of the reliability of the DNA testing at the John Tonge Centre in 1997. 

[103]  Mr Cavanagh focused upon Professor Boettcher's suggestion in cross-examination in this Court that samples described as DNA 12218 to 12223 had been "mishandled".  The basis for this suggestion was that Ms Henders said that she eluted, ie washed, samples of red towel material with a view to washing all the semen out of the cloth of the towel over a period of five days.  She put these samples in the quantitation room because she needed somewhere to store them while they were being eluted.  There they were erroneously treated by another scientist within the John Tonge Centre as if they contained extracted DNA and, in consequence, the samples were wasted.  Mr Cavanagh relied upon this mishandling as casting doubt on the integrity of the DNA extraction processes of the John Tonge Centre.  Even though none of these samples was relied upon to inculpate Mr Butler, it was said that they cast doubt on the security and continuity of the sample from 12150B which was relied upon to establish his guilt.

[104]  Mr Cavanagh argued that potential for confusion arose because of the multiple samples that were created at the John Tonge Centre, and difficulties said to arise from insufficient labelling and record-keeping.  This was said to give rise to such a general concern about the quality of the process as to necessitate, apparently as a matter of law, a doubt as to the reliability of the result.[21]

[105]  Mr Cavanagh, relying on the circumstance that a process of differential lysis was not performed at the John Tonge Centre in 1997 in order to ensure that the DNA from the sperm on the red towel was tested rather than DNA from blood cells or skin cells on the towel, submitted the identity of the donor of the DNA has not been established beyond reasonable doubt.  The short answer to this argument is that, while it might well have been better if the John Tonge Centre had used a process of differential lysis in 1997, the failure to use that process does not explain how Mr Butler's DNA was found on the towel.  On the evidence there is no reason to entertain the possibility that the DNA result occurred because of contamination of the towel with the DNA of another person.  Mr Cavanagh's approach should be rejected for a more general reason as well.

[106]  There are decisions of some courts in the United States which demonstrate some receptiveness to the general approach adopted by Mr Cavanagh,[22] but Australian courts are not similarly inclined.[23]  In Australia a court may exclude evidence in its discretion, either on the basis that its prejudicial effect exceeds its probative value,[24] or that it would operate unfairly against the accused.[25]  But where the question is whether there is reasonable doubt as to the accuracy of the outcome of the processes in question, that question is one of fact to be resolved by reference to the evidence.

[107]  Reasonable doubt is not to be imputed, as a matter of law, to a process of scientific testing for forensic purposes because the processes of the laboratory in question have not been shown to be fail-safe or because more perfect procedures might have been adopted or might now be available.  The question is whether there is reason to doubt whether the product of the processes of investigation and testing is what it is said by the Crown witnesses to be by reference to admissible evidence.  Insofar as Mr Cavanagh's submission addressed a different question, I would respectfully reject it.

[108]  This is not a case where there was no evidence from the persons who actually carried out the procedures which produced the DNA profiles in question.[26]  The question on which this case turns is whether the evidence of Mr Freney and Ms Henders suffices to allay doubt as to the integrity and continuity of the samples of red towel from which DNA was extracted.  This is a question of fact.  In resolving this question of fact, errors or deficiencies in records may be relevant as bearing upon the reliability of the evidence of witnesses such as Mr Freney and Ms Henders but these features do not give rise, as a matter of law, to a presumption of unreliability.

[109]  In summary on this aspect of the case, whether or not there is reason to doubt the accuracy of the DNA result in 1997 because of the possibility that security or continuity of the samples was not maintained is a question of fact.[27]  The points which Mr Cavanagh agitated did not cause me to doubt the evidence of Mr Freney and Ms Henders.  This evidence established that in 1997 DNA was extracted from semen taken from the red towel which was found to have a profile which matched that of Mr Butler.

The 2006 DNA testing

[110]  The further testing by Ms Neville established that the DNA profile in the semen deposited on the red towel found on the corpse of the deceased matches that of Mr Butler. 

[111]  There is no reason to doubt the integrity or expertise of Ms Neville.  She was an impressive witness whose evidence I accept without reservation.

[112]  There were some faint suggestions that Ms Neville's DNA testing did not accurately establish the DNA profile of the sperm on the sample of red towel material examined by her.  Professor Boettcher in his oral evidence suggested that the DNA testing performed by Ms Neville in 2006 may have produced an incorrect result because of some "insult" to non-sperm cells in the sample which resulted in their not releasing the DNA in the course of differential lysis.  Ms Neville had not ever heard of such a possibility, and Professor Boettcher did acknowledge that he could not point to any evidence that any such "insult" had occurred.  This suggestion can confidently be rejected.

[113]  In his oral evidence Professor Boettcher suggested that it was possible that the material which Ms Neville found gave a DNA match with Mr Butler may not have been sperm from a sample of the red towel.  The difficulty with this theory, so far as the material analysed by Ms Neville is concerned, is that Professor Boettcher was unable to suggest how Mr Butler's DNA could have come to be upon the material tested by Ms Neville.  There is simply no evidence which supports the hypothesis that some of Mr Butler's blood made its way into the tube labelled "14467-7-1". 

[114]  In relation to the red towel material tested by Ms Neville in 2006, Professor Boettcher said in his report of January 2007 that:

"the towel cutting 14467-7-1 also carried a DNA number, 12221, which was appropriate to the sample only after DNA had been extracted from 14467-7-1.  The DNA identification number 12221 is inconsistent with the item being a towel sample.

The number 12221 on the item implies that it was a DNA sample, not towel cuttings."

[115]  The inference drawn by Professor Boettcher is plainly wrong.  His error stems from his failure to understand that the DNA identification number 12221 is not the identification of a sample of extracted DNA but of a piece of towel cutting from which DNA was to be extracted if sufficient DNA could be obtained from the sample.  A photograph of that material shows that it was red towel material.  There is no plausible explanation in the evidence as to how Mr Butler's DNA came to be on that material in a way which is consistent with his innocence. 

[116]  Mr Freney explained in his affidavit of 30 March 2007 that 14467 is the case file number relating to the death of the deceased.  The further additional number is used to differentiate any one item of relevance to the case from other items relevant to the case.  So, for example, the number 14467-2 was not, as Professor Boettcher seems to think, a number given to the red towel:  it was, as Mr Freney explained, the number given by him to a single area of stain on cloth cut from the red towel.  That stained area of cloth was given the DNA tracking number 12150, and Ms Henders split the red towel sample so marked into two pieces and redesignated them 12150A and 12150B.

[117]  Ms Cave's affidavit identified the material sent on 22 February 2006 for testing at the Division of Analytical Laboratories in New South Wales as two 5 ml tubes each containing a piece of red towel.  These tubes were labelled "14467-6-1-1, TOWEL, LF 23/1/97, 12222" and "14467-7-1, TOWEL, LF 23/1/97, 12221".  Ms Neville's report of a DNA profile concerned the material in the tube marked "14467-7-1, TOWEL, LF 23/1/97, 12221".  Mr Freney says that these pieces of cloth were cut by him from the red towel in January 1997 and placed in their respective tubes on that day.  Professor Boettcher raises a query as to the accuracy of the dates on the labels, but this query does not cause me to doubt the substance of Mr Freney's evidence.

[118]  Mr Freney explained in his evidence at trial why the towel semen 12150 was split.  He said that the piece of towel originally cut by Mr Freney was physically too big to fit into a test tube used in the extraction process.  As a result, the piece of cloth was cut into two pieces.  Ms Henders said in her affidavit that only a portion of the red towel sample, 14467-7-1, was given to her by Mr Freney for DNA extraction; the remainder was kept in its original storage tube.  Ms Neville swore that what she tested for a DNA profile was red towel material in a tube labelled "F14467-7-1, TOWEL, LF 23/1/97, 12221".

[119]  As to the issue of continuity of the samples of red towel material processed by Ms Neville, Professor Boettcher raised a question as to sample 14467-6-1-1 because it did not appear to have been cut by Mr Freney on the date Mr Freney had suggested.  Professor Boettcher fixes upon evidence given by Mr Freney at the trial to the effect that "there was no cutting of the towel on 23 January 1997".  That evidence was directed to the cutting out of sample 14467-2, the sample of towel part of which ultimately was placed in tube 12150B.  Mr Freney says that the towel sample 14467-6-1-1 was cut out by him on 23 January 1997.  This was not the sample from which Ms Neville obtained a positive result.  Mr Freney says that the sample 14467-7-1 was cut out by him on 22 January 1997.  He continued work on that tube on the following day.  The date on that tube, ie 23 January 1997, reflects the fact that Mr Freney concluded his consideration of that tube on that day.

[120]  In any event, the tube of red towel material from which the DNA profile inculpating Mr Butler was obtained by Ms Neville was 14467-7-1-1.  Accordingly, Professor Boettcher's concern falls wide of the mark.  Professor Boettcher sought to make much of the circumstance that the date on the tube may have been the day after the day on which the sample of red towel material in the tube was cut from the red towel and placed in the tube.  But there can be no doubt that the material in the tube was what Mr Freney said it was.

[121]  There was also an attempt to raise again the suggestion (rejected by this Court in 2001) that some of Mr Butler's blood or possibly saliva may have contaminated the towel sample tested by Ms Neville.  But tests performed by Ms Neville involved the use of a process of differential lysis, the effect of which for all practical purposes was to exclude the effect of presence of blood or other material, such as saliva, from the DNA profile she obtained from the sperm which she tested.  This suggestion can confidently be rejected.

[122]  Professor Boettcher, in his report of January 2007, seized upon a statement made by Mr Freney in July 1997.  Mr Freney noted that old technology required a sample of semen stain of about the size of a 10 cent piece in order to obtain a DNA profile whereas the then modern technology requires only "a sample about the size of a pin-head or smaller".  Professor Boettcher, having measured the surface area of a 10 cent coin as about 4.2 cm2, drew the inference that the cuttings taken by Mr Freney in January 1997 from around the edges of the original cut-out areas on the towel were "less than about 4 cm2".  Professor Boettcher noted that the red towel material received by Ms Neville had a surface area of about 12 cm2.  Professor Boettcher commented: 

"This is out of all proportion with Mr Freney's description of the size of the cuttings he had taken from 'around the edges of the original cut-out areas'.  Additionally, of course, the original towel cuttings 14467-7-1 had been used for the preparation of spermatozoa and the isolation of DNA – which would have decreased their size.  In fact, as indicated, above, it seems that the original cuttings, 14467-7-1, had been used completely and discarded.

A proposition of remnants of 14467-7-1 in 2006 of about 12 cm2 in area is simply not credible." (emphasis in original)

[123]  The starting point for this aspersion on Mr Freney's honesty is the entirely unwarranted assumption that Mr Freney would have taken no more than a pin-head sized sample from the red towel in January 1997.  It is obvious that Mr Freney's July 1997 note was not concerned to describe the size of the cuttings he had actually taken from the red towel to create the towel sample 14467-7-1.  As Mr Freney explained, in 1997 he was concerned to take as much material from the edges of the original towel cuttings as he thought might contain semen stains.

[124]  Professor Boettcher's interpretation of Mr Freney's comment was distinctly unreasonable, and his attack on Mr Freney's honesty was without any reasonable basis.  It may be noted here that Mr Cavanagh was not disposed to put to Mr Freney in cross-examination that Mr Freney's evidence as to the source of the material tested by Ms Neville was untruthful.  I make this observation, not because of a concern about a possible infringement of the rule in Browne v Dunn,[28] but to make the point that the unreasonableness of Professor Boettcher's attack on Mr Freney's honesty was painfully obvious. 

[125]  In summary, in relation to the DNA testing in 2006, the evidence of Mr Freney, Ms Henders, Ms Cave and Ms Neville was sufficient to establish beyond reasonable doubt that the red towel material examined by Ms Henders in 1997 and Ms Neville in 2006 contained uncontaminated semen stains from the red towel of which Mr Freney took possession in September 1983. 

Professor Boettcher's credibility

[126]  It will be apparent that I do not regard Professor Boettcher's evidence as casting doubt upon the evidence of the respondent's witnesses.  In addition to the aspects of his evidence to which I have already adverted, there are other features of his evidence which led me to doubt his objectivity.  Regrettably, I have come to the conclusion that Professor Boettcher's criticisms stem from a stubborn zeal for Mr Butler's cause, rather than from the disinterested application of his expertise to the evidence.

[127]  The extent to which Professor Boettcher has taken it upon himself to perform the role of advocate for Mr Butler in his subsequent reports bespeaks a level of personal commitment to Mr Butler's cause which is not consistent with the detachment and independence which is to be expected of an expert witness if that witness' opinion is to be given full weight by the court.  In Cross on Evidence, in a discussion of the decision of the High Court in Fox v Percy,[29] the learned author observes: "An expert witness should never assume the role of an advocate and argumentative or adversarial evidence may be rejected."[30]  

[128]  In Fox v Percy, Callinan J observed that: "the adversarial stance taken by [the expert] … is very much to be regretted.  It also might have been basis enough for the rejection of his evidence."[31]  His Honour cited with approval the following passage from Phipson on Evidence in relation to the value of expert evidence:

"The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of pre-conceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will."[32]

[129]  In advancing criticisms of the procedures of the John Tonge Centre, Professor Boettcher did not shrink from the suggestion that on his view of the processes within the John Tonge Centre, Mr Freney and Ms Henders were lying in their explanations of their involvement in the DNA testing in 1997.  It is, I think, a matter of real concern that Professor Boettcher was so ready to conclude that evidence, which was either unexplained or which he simply did not understand, revealed dishonesty on the part of other scientists who had no apparent reason to fabricate a case against Mr Butler.  This concern served to undermine the confidence which one would ordinarily have in a witness of Professor Boettcher's stature. 

[130]  It is readily apparent that Professor Boettcher has simply not understood some of the records which he has purported to interpret.  Thus, for example, he treated references to sample numbers of "DNA" in DNA Extraction Sheets used by the John Tonge Centre as if they were references to DNA actually extracted from field samples.  In fact, as is obvious from the sheets themselves, the numbers of the samples refer to a particular piece of the field sample taken for DNA extraction and testing.

[131]  This lack of understanding led Professor Boettcher to regard a record made by Ms Henders on a DNA Extractions Sheet "3/2/97" in respect of DNA samples numbered 12218 to 12224 inclusive as asserting that Ms Henders had extracted DNA from those samples.  In this regard, Ms Henders' evidence is that in consultation with Mr Freney and other scientific staff at the John Tonge Centre it was agreed that she would try to dissolve the dried stain off the towel and to concentrate that sample in order to proceed with the actual process of extracting any DNA that was present.  Ms Henders explained that over five days to 3 February 1997 she had eluted these samples with a view to extracting DNA from the semen dissolved from cloth, but that she had not pursued this process to the point of quantitation and extraction after she had been informed that the sample 12150B yielded sufficient DNA for a DNA profile to be obtained.

[132]  Professor Boettcher's criticisms of Ms Henders are that the elution of these samples for five days shows a lack of understanding of the process.  Ms Henders says that the decision to run the incubation for five days was a deliberate choice made for operational reasons, not the result of any lack of understanding of the process.  The soaking of the towel material for this length of time was undertaken to ensure that any semen would be removed into solution because the towel was new and highly absorbent. 

[133]  Professor Boettcher's criticisms even extended to the use by Ms Henders in her laboratory notes of the use of the word "eluted" as an indication that she lacked understanding as to what she was doing.  There was no suggestion that Mr Freney or any other staff would not understand that the word "eluted" was used with respect to the washing process which had been applied by Ms Henders as opposed to the actual extraction of DNA from the semen in solution.  It appears that this material was later treated as if DNA had actually been extracted, but this error was not caused by Ms Henders' use of the word "elute". 

[134]  In Professor Boettcher's report of January 2007, he referred to the circumstance that Mr Freney continued his DNA testing in 1997 after the match with Mr Butler's DNA had been established.  As I have already noted, Professor Boettcher was disposed to suggest that this circumstance revealed that Mr Freney was beset by doubts as to the reliability of the testing which had been carried out.  Professor Boettcher's suggestion is not an inference drawn from experience of, or expertise in, the exigencies of forensic scientific analysis.  Professor Boettcher has little or no expertise or experience in these areas.  And, in truth, the further testing is readily explicable as evidence of a responsible scientific concern on Mr Freney's part to ensure the accuracy of the testing which had been undertaken. 

[135]  Professor Boettcher's general criticisms of the systems in place and of the records kept by the John Tonge Centre were rejected by Mr Freney.  They are not supported by any other expert who has given evidence in the case.  These criticisms were not advanced at trial when, as has been said, Mr Butler had access to Dr Mullis, Ms Main and the AGRF laboratory.  And at trial Dr Budowle gave evidence in which he was referred to the systems and procedures which were in place at the John Tonge Centre in early 1997.  In relation to his evidence this Court said in 2001:[33] 

"Dr Budowle expressed his approval of these systems and procedures and, on that basis and on the basis that there was an obvious explanation for the failure to obtain a result from testing of samples of the towel on 6 February, expressed the view that contamination was not a plausible explanation for what occurred either in the course of conduct leading to the DNA analyses on 6 February or in the course of conduct leading to the DNA analyses on 13 February. Moreover, as the experts showed, if contamination occurred, there would ordinarily be evidence of both DNAs appearing in the result of the analysis of semen stained towel on 13 February, whereas that was not the case here. It would be only where the level of one was so low as to be undetectable that that would not occur …"

[136]  In summary,  I do not regard Professor Boettcher's views as apt to cast doubt on the integrity or competence of Mr Freney or Ms Henders, or the reliability of their evidence, or the reliability of Ms Neville's testing in 2006. 

Conclusion and order

[137]  As has been noted above, there has never been any suggestion that the semen found on the red towel might reasonably be thought not to be that of the killer of the deceased.  I am satisfied that there is no reasonable doubt that Mr Butler's DNA was on the red towel found covering the body of the deceased when it was found on 2 September 1983.  I therefore conclude, on the whole of the evidence, that Mr Butler was rightly convicted of having murdered the deceased. 

[138]  Accordingly, the appeal should be dismissed.

[139]  HOLMES JA:  I agree for the reasons given by the President and Keane JA that the case referred should be dismissed.