Anne Lorraine RINALDI

The High Court has dismissed an application by a West Australian man convicted of murdering his wife.

Anthony Rinaldi was found guilty in 2002 of killing his estranged wife Anne Rinaldi.

While her body has never been found, prosecutors relied on strong circumstantial evidence and Rinaldi was sentenced to strict security life imprisonment with a 23 year minimum.

Rinaldi has always maintained his innocence and lodged an appeal against his conviction in the Supreme Court of Appeal.

Today, the High Court said it wasn't persuaded that any error or miscarriage of justice had occurred and Rinaldi's application was dismissed.

MR WATTERS: Around line 15 it starts off with the phrase, “His four‑wheel drive, his Toyota Landcruiser”, do your Honours see that?

His four‑wheel drive, his Toyota Landcruiser, was seized by the police very early and it was examined. A luminal examination was conducted and blood was traced visibly in the back particularly but also in the driver’s seat area. However, blood was found visibly in the back seat. Perhaps I can explain it this way: this is an older model of Toyota Landcruiser. To obtain a greater carrying area, you bring up the bench seat, the rear seat, by rotating it forwards and upwards and then put down the very back seat to give a larger area to carry things.

Bearing in mind the photograph that I have shown you, one can see that quite clearly. But more importantly, when one goes to the prosecution closing – because it is the contention of the applicant that it was never the State case at trial the body was placed in through the rear door. It was the State case that it was brought in through the back doors, the back opening of the Toyota Landcruiser. If I can take your Honours to page 3, this is the transcript dated “17/3/04” and it is the State closing, and around line 20 on that page the paragraph beginning “Perhaps now I could turn to those” you will see there the learned prosecutor is talking about the circumstantial evidence. A few lines through that paragraph he says, talking about when she was in the four-wheel drive:

she was in the front of the four-wheel drive, not the back, but we’re not talking here about somebody sitting in the back seat.

It is entirely consistent with the body of the deceased being put into that vehicle.

If you imagine it – and you may not wish to imagine it but if you imagine a body being dragged from inside – the accused man dragging the body into the back from outside, then particularly if there were, as one would expect, head shots involved it’s quite conceivable that blood would reach the top of what was the side of the back seat in the way demonstrated on the video because that’s where the blood is. The blood isn’t just in one spot. It’s in a number of areas and it’s visible in the video along what is the top when it’s taken out of the back of the back seat.

Of course to carry out that exercise, the only purpose of putting up the back seat, is to put down the very rear seat to provide storage and carrying space and that’s what would be required if you were going to transport a body.

Your Honours, that would make sense if you were going to transport a body in a car like this. You would fold down the seats as they were intended to be folded and drag the body in through that rear section, the back doors of the Landcruiser. It was never the State case at trial that the body was dragged in through the rear passenger door on the driver’s side. That is what the President found and ‑ ‑ ‑

KIRBY J: Do we not run a risk of getting lost, the trees in the forest here, because after all is said and done, there was blood in the Landcruiser which was consistent with that of the deceased and is that not the most important evidentiary fact, as I think the President was hinting? It is really not so significant which door the person went in as the fact that there was the blood in the Landcruiser and it is consistent with the deceased.

MR WATTERS: Yes. If I can deal with that point, I respectfully disagree, by way of illustration. If your Honours have the picture of the interior back seat of the Landcruiser and you have the part that you sit on lifted up and what was said to be visible sites of blood was found on the top part of that seat folded forward, so it would be, to put it bluntly, down in the crack behind where your bottom is where you are sitting on the seat, to put it in layman’s terms.

MR WATTERS: It is toward the driver’s side door but not necessarily adjacent.

MR WATTERS: Towards the driver’s side door, yes. But if I can come to the relevant aspect of the non-disclosed material, that blood was found by Peter Malins, Officer Malins, and his findings were contained in the report PM 1 to 6, and in fact there were 12 swabs. What is not contained in that report, and it was in a report that was not tendered, was that he also found a total of, I think, 12 negative swabs in the rear section.

But dealing with your Honour’s points about the presence of blood, it is this. If your Honours look at the supplementary material that is annexed at the back of the book, if I can take your Honours to, I think you may have it as 119b that is the non-disclosed material, the Egan Report that shows the diagram and the rear section divided up into eight sections. Do your Honours see that?

MR WATTERS: As your Honours will have noted from the transcript of the appeal, he divided the rear section up into 10. He took about eight swabs from each. There were a total of 80 swabs of which four gave some sort of response and they are ‑ ‑ ‑

KIRBY J: But is that not what is significant? Negative swabs are neutral, are they not, but positive swabs are very significant?

HAYNE J: Let it be assumed that you had known at trial that there was forensic evidence of no blood being found on the pan of the cargo area. What do you do differently at trial? That is what I need to know.

MR WATTERS: Thank you, your Honour. If your Honours look at the bottom of that diagram you will see there, “Examined in the presence of P. Malins”. He was present when Egan carried out that test. That test was carried out on the Friday afternoon. Later that evening Malins carries out a visible inspection and he says at trial that he sees visible spots of blood and it should have been put to him, if the counsel was availed of the non‑disclosed material, that there was a very strong inference that that blood had been put there by him for a number of reasons. This, firstly, that it was not shown up in the Kastle‑Meyer testing carried out by Egan, and, yes, it is conceded that the seat was not rotated in the manner it is when he did that testing, but Malins was present when that was carried out and the blood was not found.

More importantly, when you look at what the State case was, that here was a body, a large amount of blood inside the house, head shots or certainly fatal body shots, dragged out, put into the back of the car and there is no blood found in that rear section by Egan with regard to his testing. Egan’s positives were not as to blood. If your Honours look at the summary of the DNA typing results that I think your Honours might have at about 119(n). It is the “SUMMARY OF DNA TYPING RESULTS”. Down the bottom right‑hand section it has “8/9” and lists the findings and you will see there is “PM 6A & B” down to “10A & B”. They are the Malins swabs. You then have the three from Egan’s report and you then have two GP. They are the Paton ones.

But importantly, when you look down the bottom at the “CONCLUSIONS”, the only DNA that matched that of the deceased was down the bottom – I am talking here about the non-disclosed material – the “Drivers door swab”. So what you have is you have about 79, bearing in mind Egan took 80 swabs. The forensic opportunity was lost to cross‑examine the officers. Based on the State case a bleeding body was placed in the back of that car, that here was ‑ ‑ ‑

KIRBY J: What is your theory of the case? Your theory is that this is an instance of giving a presence is it, that somebody put the blood in the car in those limited spaces in order to implicate your client?

MR WATTERS: Yes, and there was evidence of Professor Boettcher that it was different in appearance. Also there was some issues as to the way in which it was tested and the time in which it was tested but, yes, if that is how the blood got there. I mean, your Honours, bear in mind this had been the family vehicle for some 20 years and, yes, there was evidence that she had not been in it for some time but there was no evidence as to how old that blood was of her on the backseat. It could have got there in any number of ways.

KIRBY J: I think we understand that point. Now, what about the evidence of J?

MR WATTERS: Your Honour, regarding the evidence of J, and if I can take your Honours to the findings of the President with regard to that, what your Honours have, in my submission, is the President was wrong to discount that as he did. This is on page 86 of the application book because towards the bottom there, line 30, what his Honour has concluded is that:

In these circumstances there was little to be gained by pursuing a course that would have resulted in J being called as a witness. There was no basis for suggesting that he might have killed Mrs Rinaldi.

With respect, it is almost the opposite. There was almost a consciousness of guilt lie by him when he is interviewed by police. When he is first interviewed by police he said that he was her financial adviser and did not see her very often, saw her once or twice or year or something like that.

HAYNE J: What, and that is consciousness of guilt?

CRENNAN J: He is a married man.

HAYNE J: Really, come on.

MR WATTERS: If I can develop it in this sense, he then admitted that he was her lover and saw her two or three times a month. So he is lying about the nature of his involvement with her and how often he sees her. He had been seeing her for a number of years and there was evidence that he was proposing to call off the relationship ‑ ‑ ‑

HAYNE J: No doubt he lied, but the proposition at which I bridled was that that evidenced some consciousness of his guilt of murder.

MR WATTERS: Your Honour, the reason for his lie was dismissed ‑ ‑ ‑

HAYNE J: There are a few other explanations why he might lie about an illicit relationship with this woman.

MR WATTERS: Your Honour, I accept that, and one of the reasons put forward was because he did not want his wife to know he was having an affair. But here he was being interviewed by police in a record of interview in a police station. This was not a public forum. He is being questioned about a possible murder and one would enquire, with respect, as to why he did lie to the police about his involvement. Buttressing that is also the presence of his semen on the doona, the presence of bodily fluids indicative of sexual intercourse that had probably happened that weekend. She was killed late on a Monday night/early Tuesday morning. Also evidence that he wished to call off the relationship.

Of course, with respect, it was not for the applicant to find who did it. But certainly the presence of J as a person of interest would certainly be something to cause a jury to have some reasonable doubt with regard to whether or not Mr Rinaldi did it when one looks at what the State case was as opened and closed at trial, the non-disclosed material that I have already spoken to your Honours about. I am mindful that, with respect, the special leave questions overlap to a degree because at some occasions when the Court of Appeal dismissed the cogency of the non-disclosed material, they raised the matter that, well, it was never put to prosecution witnesses this was not blood or it was never suggested it was not blood and that, with respect, goes to ground 2. Yes, that is accepted that was not done at trial, but that also goes to ground 2 with regard to what took place. I take it, your Honours, if I could move on then to that second ground ‑ ‑ ‑

KIRBY J: Just to help me, you did not have the evidence of the J’s interview at all? You did not have that at all? Was that provided to the accused?

MR WATTERS: No, the video had been disclosed, but it had not been watched by either counsel. That is alluded to at page 86 of the application book about line 20 when the President said:

Although it seems to me that at least one of Ms Braddock and Ms Horrigan should plainly have viewed the videotape, I am not persuaded that their failure to do so, and Ms Braddock’s decision not to pursue the issue with Mr Bagdonavicius, led to any miscarriage.

KIRBY J: Where is non‑disclosure relevant in the case of J’s evidence?

MR WATTERS: J’s evidence goes to the competence of counsel question. J’s evidence does not go to the non‑disclosure. It was disclosed late in the day and no issue was taken.

KIRBY J: I follow.

MR WATTERS: The DNA report linked his semen in the doona, sexual intercourse, et cetera, but there was certainly full disclosure of the J material. That goes to the issue of counsel looking at it and the forensic use that was made of it when the opportunity arose.

KIRBY J: Say what you want to say on that second ground, then.

MR WATTERS: As this Court said in Birks and Ali, it is a question of looking at whether there was a miscarriage with regard to the trial. In my respectful submission, there has been a miscarriage of justice on that ground when one looks at the conduct of counsel taken in a global sense. Now, I concede immediately ‑ ‑ ‑

KIRBY J: There was a clash between senior counsel and your client and the Court of Appeal preferred senior counsel’s version of events.

MR WATTERS: I accept that but, with respect, there is a cause for concern when the applicant says, “I remember A, B, C,” and senior counsel says, “I have no recollection,” and the court says, “We prefer her evidence when she has no recollection to his clear recollection of A, B, C”. Now, that is an issue but, yes, I do concede that both gave evidence. But, with respect, that really went to the issue of, in effect, signing him up not to give evidence on the first morning of the circumstantial case and, that is, the document that is produced where he signs saying, “I do not wish to give evidence,” on the first morning of what turned out to be a two and a half day trial. It appears that that was never revisited at the close of the prosecution case. There was abundant material that had been served that could have assisted the applicant. As your Honours are aware, he was willing to give evidence.

The Court of Appeal dismissed that, in my respectful submission, somewhat flimsily when they said that when he, the applicant, gave evidence before the Court of Appeal, “he never told us what evidence he could have given”. But, with respect, there was part of the disclosed material of the people at the Lone Ranger’s shooting club who would have made it fairly tight for him to have got back and committed this offence in time. But, more importantly and crucially, there was the evidence of the neighbours, the people who lived very close to her small ground floor unit who heard nothing. Yet, the prosecution bring a man who lives a street away or round the corner who says, “I recall hearing a shot around that time on that night,” and what the defence were armed with were statements of people who lived ‑ ‑ ‑

KIRBY J: Yes, we know this.

MR WATTERS: Yes, I am obliged, your Honour.

KIRBY J: What would you say about the version that – I think it was the daughter of your client who said – when asked for the explanation of her mother’s death, his answer was “Avarice.”

MR WATTERS: Your Honour, that was the daughter, Melissa. My recollection is not that she asked about, “Why did you kill her?” It was to do with the issue of hate or dislike. I might be wrong on that. It is set out in the Court of Appeal judgment, but my recollection is that it was to do with the issue of the hate between him and his wife. Your Honour, can I deal with that point exactly. The State do not have to prove motive, but they ran the case that, well, he was about to make a family law payment and therefore he killed her but, with respect, the payment had to be made anyway. Whether she fell under a bus the next day or nothing happened to her, it had to be paid to her estate.

I draw that back to what your Honour said about his statement about avarice is somewhat questionable with regard to the weight to be given to

that and, once again, that is a matter that could have been dealt with by – I appreciate this may be conjecture, but I do not think this is – the applicant had he given evidence at trial. Bearing in mind he was a mature man, a school teacher, one can infer from that he is educated and articulate and could have dealt with the circumstantial case that he faced. Your Honours, unless I can assist you any further, those are my submissions.

KIRBY J: Yes, thank you. Before we decide whether we will call on the respondent in this matter we are going to take a short adjournment.

AT 12.25 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.29 PM:

KIRBY J: Mr Dempster, we would like to hear what you have to say about the non-provision by the prosecution of the forensic material. What do you say about that and of its significance?

MR DEMPSTER: Your Honour, as we said, it was simply immaterial and ‑ ‑ ‑

HAYNE J: What, immaterial to your case or immaterial to the case, Mr Dempster? There is a real and radical distinction which needs to be observed by prosecuting authorities.

MR DEMPSTER: There is indeed, your Honour, and I appreciate the subtlety of the difference between no evidence of blood and evidence that there was no blood. But in the context of this case, that material could only have had relevance if the applicant establishes that the prosecution case was that the body was loaded in the tailgate which simply was not the case. The prosecution case was always that the body was loaded in the driver’s side, the back passenger door of the driver’s side.

HAYNE J: At the time the decision would have had to be taken about whether to disclose this or not, how could the prosecution be certain of whether this was irrelevant to the way in which the accused wished to run his defence?

MR DEMPSTER: The prosecution only became aware of the material after the conviction. That is the first thing. As far as the prosecution was aware, there was an absence of blood, as indeed the non-disclosed material has established, and the prosecution and everyone else approached the case on that basis and there is no change. The non-disclosed material has made no change to that position. The learned trial judge, Justice McLure, at page 71 of the book approached the matter having regard to Mr Bryson’s evidence of reverse parking a strikingly similar vehicle the day before the shooting, at paragraph 95, and “the body being placed in on the driver’s side. That’s the Crown position”. All the members of the Court of Appeal took the same approach.

It is perhaps put most forcefully by his Honour Justice Pullin beginning at page 97, paragraph 186, “The assertion that this was the Crown case is not correct.” That is a reference to the suggestion that the victim’s body had been loaded through the tailgate door, in the preceding paragraph. The same passages then are referred to as they are referred to independently by his Honour President Steytler, and his Honour Justice Pullin concludes at paragraph 189:

This does not in any way suggest that the prosecution advanced the case that the body was loaded into the rear of the vehicle. On the contrary, it reveals a suggestion by the prosecution that the body was loaded into the rear seat area from the driver’s side rear door.

The reference back then to the trial judge’s summing up which, of course, had no such suggestion about the body being loaded in the rear.

KIRBY J: Yes, but following Mallard, leave that point aside, every time the prosecution fails to provide material forensic evidence you are going to get complaints of this kind and courts are going to be very vigilant to ensure that the evidence was not material and because Courts of Appeal are not always in the best position not knowing all of the detail of the trial, you are going to find yourselves on the receiving end of appeals both to the Court of Appeal and to this Court. I mean, it does really require some rethinking of the policy of the prosecution authorities in Western Australia. What is the harm of providing it?

MR DEMPSTER: It was not known about and there was a video examination of the car shown to the jury. There were two forensic officers called in relation to that examination. The blood was found as visible, a matter accepted by Professor Boettcher during the course of these appeal hearings in the court below, visible, photographed and the subject, of course, of a forensic report. This matter was before the Court of Appeal in technicolour. Your Honours can see there were three hearing dates extending from two dates in June of last year through to a date in October of last year. Your Honours can see from the length of the judgment ‑ ‑ ‑

KIRBY J: What point are you making on that? That is simply showing that the Court of Appeal is looking at the matter with appropriate thoroughness.

MR DEMPSTER: Indeed. In the particular circumstances of this case, the non‑disclosure simply was immaterial. There is a reference ‑ ‑ ‑

KIRBY J: Is there anything else you want to say about that aspect of the matter on which we wish to hear you?

MR DEMPSTER: Not about that aspect.

KIRBY J: We do not need to hear you on the other issues that have been argued.

MR DEMPSTER: May it please the Court.

KIRBY J: What do you say, Mr Watters, in answer to what Mr Dempster has just said?

MR WATTERS: Your Honour, I strongly disagree that it was always the State case the body was loaded into the rear driver’s side door. My learned friend has not taken you to any transcript from the trial where he put that before the jury. In fact, I have taken you to his opening and his closing where it could be clearly inferred, if not crystal clear, that the seats were folded down and the body placed in through the rear section of the car. Now, my learned friend points to a quote by the learned trial judge, Justice McLure, as she then was, that seems to say that because a witness had seen the car similar reversed in on a Sunday night in a similar position that the body must have been pulled in through the driver’s side. But, with respect, there was no evidence to support that.

I do not wish to be repetitive but just to say it one more time; it was never put by the case. My learned friend stands here before your Honours today and says it was always the State case the body was loaded in through the rear driver’s side door. There is nothing in the primary transcript to show that. More importantly, if your Honours look at the photograph that was part of the material sent to your Honours with the seat folded up, it would have been almost improbable, if not extremely difficult, for a person to drag a person in through that driver’s door parked up against the wall that surrounded her unit, her ground floor unit, drag it in through that cavity, when one has that old‑fashioned Landcruiser, bearing in mind the luminol examination of Mr Paton that I have already taken your Honours to, that showed the rear seat folded down. That was marked as GP 10 or 11.

High Court dismisses appeal against murder conviction