Judge’s error sparks retrial of murder accused
An error by a long-serving judge has left Hayley Dodd's grieving family facing another trial of the man alleged to have snatched and murdered the 17-year-old more than two decades ago.
Francis John Wark - who turned 64 today - was set to spend the rest of his life in prison after a judge found he snatched the teenager from the side of the road near his Badgingarra, Western Australia, property in 1999 and murdered her in the course of a sexual assault.
It was found Wark - who was jailed for life with a non-parole period of 21 years - then hid her body so well that it is still missing today.
But in an extraordinary ruling on today, WA's highest court quashed Wark's murder conviction and ordered a retrial after three judges unanimously found he suffered a "substantial" miscarriage of justice.
Wark's guilty verdict was supposed to be the end of almost 20 years of torment for the Dodd family, but they now face another long and anxious wait for a new trial and the prospect of her daughter's alleged killer applying for bail.
The Court of Appeal upheld the appeal on one of seven grounds, finding Justice Lindy Jenkins, who heard his seven-week trial without a jury in 2017, made a mistake when she refused to accept his alibi without "independent proof or evidence", effectively reversing the onus of proof.
That was partly because Justice Jenkins, who was WA's longest-serving judge when she retired two weeks ago, mistakenly assessed Wark's honesty and reliability taking into account a violent rape he carried out on a hitchhiker in Queensland eight years after Hayley's disappearance.
Justice Jenkins found Hayley, who had been hitchhiking to a friend's farm near Moora, vanished from North West Road between 11.40am and 12.40pm and that Wark had the opportunity to encounter the teenager about 12.05pm.
But Wark told police at the time that he did not leave Moora after running his weekly errands until after noon and did not come across Hayley on his half-hour journey home.
President of the Court of Appeal Justice Michael Buss found Justice Jenkins "not minded to accept" Wark's statement to police without "independent evidence" or corroboration, which was an error, pointing out it was up to the prosecution to disprove his alibi.
"The State must eliminate any reasonably possibility that the alibi is true before the accused can be convicted," Justice Buss said.
"(Wark) was not obliged to support his alibi by adducing or referring to 'independent evidence' or corroboration as a precursor to her Honour considering whether there was at least a reasonable possibility that the alibi was true.
"Her Honour's approach imposed on the appellant, in effect, an onus to adduce independent evidence … those material errors of law produced a miscarriage of justice … in that the appellant did not receive a trial according to law."
During the trial, Justice Jenkins was allowed to use propensity evidence relating to Wark's violent rape of a 31-year-old hitchhiker in North Queensland in 2007, during which he demanded the victim hand over her earring.
Justice Jenkins found that horrific crime eight years after Hayley vanished proved he was the "type of person who would be likely to pick up a lone female hitchhiker and violently and seriously assault her (and) would be likely to take an earring as a trophy from his victim".
That was critical, because a unique ankh-shaped earring, identical to the one Hayley was wearing when she vanished was found lodged in the seat cover seized from the borrowed ute Wark was driving when it was examined during a cold case review in 2013.
Justice Jenkins said it was not a "reasonable possibility" that the earring belonged to anyone else but Hayley.
And Justice Buss said it was "surprising" that despite the "interconnections" between the Wark's alleged alibi, the evidence as to his alleged opportunity and the earring, she did not rely on that earring in concluding Wark's alibi was false.
Justices Andrew Beech and Robert Mazza agreed with Justice Buss' findings, with Justice Beech commenting that "to some, it may seem strange that an error in one or two paragraphs of a careful judgment of almost 200 pages could lead to a successful appeal and a retrial".
"However, the truth of what the appellant told the police was at the heart of his case at trial; acceptance of his account of when he left Moora would have required his acquittal," he said. "In my respectful view, the judge's erroneous discounting … of what the appellant told the police occasioned a miscarriage of justice and a substantial one."
Hayley's mother Margaret was in court for every day of Wark's first trial which involved evidence from dozens of eyewitnesses, overseas DNA experts, and a trip to Wark's former Badgingarra home, the roadside marker where Hayley was last seen and to Moora and the shops he allegedly visited.
Mrs Dodd was again in the public gallery today to hear the decision, and afterwards said she had no choice but to sit through the next trial and be "put through the mill again".
"It's my daughter we are talking about and I want to hear everything that goes on," she said. She said she was surprised and upset.
"I've come this far in life that I can't do anything so I'm not going to get unduly upset over it, even though I am upset." she said.
Asked about her thoughts on the justice system, Mrs Dodd said those involved were just doing their jobs.
She had to walk away from the interview, admitting she was too shaken to speak.
Wark chose not to be in court yesterday as the decision was handed down and his lawyer Darryl Ryan was going to phone him to break the news that he had a second chance at freedom.
He has now served his 12-year sentence for the Queensland rape and Mr Ryan said he would ask Wark if he would apply for bail.
Wark is due to appear in the Supreme Court on March 12 for a status conference.