Thank you for the CD disc from Path West, that included the laboratory working notes and correspondence in relation to your client. I have examined these documents and also note the letter from Dr Gavin Turbett dated 11 May 2007. This letter is in reply to a number of questions that we asked Dr Turbett during our meeting of 2 May 2007.
It is quite clear from the trial and appeal transcripts, that the forensic exhibit that was most damaging to Mr White was a stain from the underside of the central bar of the left gate (known as left 5 stain 1). In view of Reid's evidence to the jury, that Tapley had been shot whilst scaling this gate to escape, it became vital to the Crown to prove that it was Tapley's blood on the gate. I have therefore conducted an audit of the history of this exhibit, to try and determine exactly what happened to it during the investigation.
The first involvement of the forensic scientists from Path West in this case was 3 April 2002. Dr's Gavin Turbett and Aleksander Bagdonavicius were called to WA Police Service Headquarters where they met Sgt Webb and Sgt Sanderson. They were asked to examine a pair of gates that were in secure storage that had been taken from Jade Street. According to eleven pages of notes, this examination was conducted between 0900 hrs and 1040 hrs. A total of22 exhibits, mainly swabs, were taken from this initial examination. Despite conducting presumptive blood screening tests (KM or Kastle Meyer tests) over all the gates and stains there is no record on the notes of any of these tests being positive. In Dr Turbett's letter of 11 May 2007 he concedes:-
Number of KM Tests (screening for blood) The report states 'Numerous stains and areas were screened for the presence of blood, but none of the stains that were tested gave a positive reaction.'
The item examination notes (pages 100 - 120) show that a number of KM screening tests were conducted on site, but I can not recollect if the notes show a record of every test that was performed if it gave a negative result.
Well the answer is the notes do not record this. Page 103 does record Swab of entire centre bars "Left Centre Bars". So clearly extensive KM swabbing was conducted, but there was absolutely no indication of any positive reactions for blood from anywhere on the gates.
The Path West incoming exhibits log notes the 22 items that were deposited by 'AB' at 12.09 hrs on 3 April 2002. The next day 21 items are all retested by two presumptive tests for blood. This time some of the tests show a variety of reactions that Dr Turbett explains in his letter as follows:-
'In total 21 swabs were collected for further examination, plus the fabric threads. These were all screened in the laboratory (See pages 120 - 121) A number of these samples gave positive reactions with one of the two screening tests for blood (KM) but not with the other test (TMB). On the basis of that conflicting result, it was considered possible that the positive reaction was a false positive. Therefore, those "positive" results were not reported.'
These swabs were then submitted for DNA testing. They are all completely negative, other than item left 5 stain 1. This item records just one reading (16/17) at allele D3S1358. A full DNA profile will give ten readings, so this is in effect one tenth of a result, as low as one can get. Nevertheless it is the only reading they have from all the samples from the gates.
On 8 April 2002 the Forensic Biology case diary records an entry by Dr Turbett for a 'Quigen' on a number of items, including item left 5 stain 1. (My understanding of this procedure is to try to 'clean up' the exhibits so they can be retested for DNA).
On 16 April 2002 left 5 stain 1 was retested for a DNA profile. This time there were three results from the ten alleles. One was the 'Amel' site that indicates the sex, in this case X/Y indicates a male. Site Vwa gave a 17/18 and D8S1179 gave a 13/14 result. (Surprisingly there was no repeat of the 16/17 at D3S1358 found on 4 April 2002).
On 17 April 2002 Dr Turbett sends an e-mail to Sgt Ken Sanderson of the WA Police Forensic Services. It reads as follows:-
We have obtained a result from "LEFT GATE, PANEL 5, STAIN 1". This was on the metal bar across the middle of the left gate, towards the bottom half (we defined panel 5 as being the middle panel of the bottom halt) It was a black/brown stain. We did leave some of it behind.
However the only results I can formally call is 2 loci + sex. It is a male DNA profile. The statistics are 1 person in 62 for Caucasians. I can see a lot of other peaks, but they are below our reporting thresholds.
If I get a reference DNA profile from him, I will be able to tell you if it is his profile or not, but I will only be able to formally report the 1 in 62 part.
On the 19 April 2002 the following is the entry on the Forensic Biology Communications log:-
GRT to John Brandham (9223-3202) Parents profiled. The stain on the gate can't be excluded as having come from a son of theirs. JB said that the key issue is if it is blood or not.(My emphasis)
This is the first time that the Police emphasize that they are hopeful that it can be proved that left 5 stain 1 is actually blood - as opposed to any other body fluids that will give a DNA result. The emphasis on it being a key issue is self explanatory. After his conversation with John Brandham, Dr Turbett sends the following e-mail to Sgt Sanderson:-
Both of the parents profiles worked.
It is a good result, and it is possible that a child of theirs left the stain we discussed.
I think I need to retest the stain for blood. I didn't record it in my notes, so I can't be 100% sure if I did or not.
I am in Melbourne Mon - Wed next week, but will be back on Friday. Ring me if you need to: Mobile 0000 000 000.
Dr Turbett admits that he may have tested the stain for blood, but didn't record it in his notes, or which type of test he is referring to. This is not good practice and unusual for Dr Turbett. In many other aspects of this case, the notes show a dogged persistence by him to help the Police. In particular when trying to identify a suitable forensic practitioner around the world to examine the bones recovered from Northam.
On 24 April 2002 three more attempts were made to extract a DNA profile from left 5 stain 1, but the only results recorded on the QUser Query Columnar results are the initials SM and NO. I am not aware of what these initials refer to, but clearly they don't take the identification any further from the result of 16 April 2002.
On 10 May 2002 Dr Turbett returned to WA Police Headquarters, where he saw Sgt Sanderson. He re-examined the pair of gates, and in particular exhibit left 5 stain 1. In his notes of3 April 2002, it was noted that when they first examined this stain 'AB took 3/4 of it'. Dr Turbett again screened the remainder of this stain for the presence of blood, but the result was 'equivocal'. You will recall in our interview of Dr Turbett and in his letter he explains the meaning of equivocal:-
In the context of our reports the term equivocal means that a weak positive reaction was obtained with the test. As such the result is reported as equivocal, so as to not inappropriately imply in the report that a strong reaction was obtained.
It seems strange that on 3 April 2002 when the stain was first screened for the presence of blood, the result was negative. Yet, on the 10 May 2002 with only about a quarter of the stain remaining on the gate, a subsequent retest raises the result up to equivocal - In other words the stain may or may not be blood. By this time of course, Dr Turbett was under considerable pressure from the Police to confirm that the stain was the remains of Tapley's blood, to fit in with the information Reid was giving them.
On 17 May 2002 there is discussion between Dr Turbett, Dr Bob Goetz from the Division of Analytical Laboratories in Sydney and Sgt Sanderson. The police still wished further testing to be conducted on left 5 stain 1. The comment in the Communications log from Sgt Sanderson reads' ... we do need to proceed anyway, as it is definitely necessary to prove that it is blood'. There then followed an e-mail from Dr Turbett to Dr Goetz with the subject 'Blood Confirmation by OGD and anti-human haemoglobin MAb'
I have spoken to the Police and they have said that they still wish to proceed. There is a need to absolutely confirm that this is human blood. As I said to you it is positive with the Kastle-Meyer test, and I obtained a partial (2 + sex) profile but it is believed to have been exposed to the environment for quite a few months. Therefore could I please send the swab to you by Courier next week? I will include a formal letter of request with the swab.
I understand that you may need to use all of the stain. However if there is any material left over, I would like to get it back again, and you can courier it back to me at my expense. I also accept that there is a cost of $200 for the testing.
So on the 22 May 2002 the exhibit is sent to Dr Goetz in Sydney, with a covering letter stating 'There is a need to absolutely confirm whether or not this is human blood.' Dr Goetz reports back on 4 July 2002 that 'Human blood was not detected on the swab.' He clarifies this result with the following reasons.
The stain may have been human blood but the amount of blood present was Below the detectable level of the test and/or
The stain may have been human blood but the blood was too degraded to Obtain a result
The stain was not human blood but was human DNA and a chemical Reactant, plant peroxide etc that may cause false positives for the Screening test for blood
The stain was not human blood but human DNA with animal blood.
All of Dr Goetz's assumptions are based on the belief that the stain originally tested positive when chemically screened for blood. But as we have seen, that is strictly not correct. This stain has gone from negative to equivocal and finally to a positive reaction. So it really begs the question was it ever blood at all? Put quite simply, Dr Goetz did not detect blood because it could well be there was none there at the start. What Path West detected was partial human DNA from the stain on the underside of this central bar.
In any event, it is for the Crown to prove that this crucial stain is human blood. And clearly they have not done that. What has not helped Mr White, is the nature of the evidence of Dr Turbett in court. In chief, the DPP asked him if he could say when the stain was placed where it was found. In reply his first sentence was 'Perhaps in the case of bloodstains, once the blood is dry, it would only change appearance very slowly and you simply couldn't tell how long it had been there.' (Trial transcript 548) So regardless of what else follows, the jury have it fixed in their minds that the stain is blood.
When Mr Cannon was cross examining Dr Turbett about the partial DNA profile from left 5 stain 1, he asks 'So out of the 10 items that you were looking for to give certainty that it was Tapley's blood, seven were not reportable?' Little wonder that the jury took into the jury room with them the presumption that it was Tapley's blood on the gate. Exactly what the Crown wanted them to believe to back up Reid's evidence.
It could well be that Dr Brian McDonald's expertise on DNA testing and laboratory procedures could uncover more information. Especially in view of Dr Turbett's comments that he could 'see a lot more peaks but they are below our reporting thresholds'. Even if these peaks tend to confirm that Tapley was the likely originator of the DNA profile, I still don't see how the Crown can ever prove it's come from his blood?
I have also read the report from Dr's Buck and Cadden regarding the numerous bones discovered at Jennapullin. In particular their conclusions that eight exhibits 'represent fragments of skeletal elements that are consistent with being human'. Of these eight exhibits, three are subsequently sent to Dr John Bark of the Forensic Science Service in Birmingham, England, for more advanced DNA testing. His testing resulted in only one exhibit (RNMI) giving any reaction that these bones might be of human origin. And even then it was only a trace of mitochondrial DNA. His conclusion is self explanatory:-
'No mitochondrial DNA sequence that can be reliably demonstrated has been obtained from the bone samples. Therefore this test has not provided any evidence to support an identification of the remains.'
Out of 139 bone exhibits this is the closest that the Crown come to proving that these are Tapley's skeletal remains. I am not aware of a more advanced laboratory in the world that could conduct further tests on these bones. Although he should not have to, Mr White is in a position where he would have to prove that these bones are not those of the victim Tapley. As long as there is a semblance of a chance to have a jury believe they are of human origin, then that is all the Crown set out to achieve. This coupled with the belief that it was Tapley's blood on the gate gives credence to Reid's story.
To finalise my report in this case, I would like to see the police 'Request for Analysis' reports. I note that to obtain them you have to write to the Commissioner of Police as it is police generated documentation. On the first page of Dr Turbett's letter dated 11 May 2007 he lists eight batches of items that were forwarded by the police, that would have been accompanied by a RF A form. Sometimes these forms reveal items that were never tested, for whatever reason, but there may be items that could help Mr White's case.
Anonymous (name withheld by request - but available to give evidence if required)
27 May 2007