Ali v The Queen [2022] VSCA 31

EVIDENCE - Admissibility - Expert evidence - Pre-recorded evidence of victim - Offender described in terms not matching applicant - General expert evidence adduced at trial to explain victim's evidence - Victim not recalled at trial - No evidentiary foundation for expert evidence - Unfair prejudice outweighed probative value - Applicant abandoned unfairness objection at trial - Conviction inevitable in light of DNA evidence - No substantial miscarriage of justice - Evidence Act 2008, s 137.

PRACTICE AND PROCEDURE - Application for extension of time - Where notice of application for leave to appeal filed over two years late - Lack of funding - Difficulty in contacting solicitor - Various other reasons for delay not properly accounted for - No real prospects of success - Madafferi v The Queen [2017] VSCA 302, applied - Application refused.

1 On 29 April 2009 Ms N was alone at her home in Brunswick, in bed. Shortly after midnight, she heard what she thought was a knock at the front door. She got out of bed and opened her bedroom door and was confronted by an intruder in her home. He was naked from the waist down. He indecently assaulted her. She ran from the house, screaming, and ran across the street. A neighbour, Mr H, came out of his house and called out to her. She turned towards him, but did not stop. She later told police that she did not know who the person she saw in the street was, and was not sure whether it was the man who had been in her house.

2 The applicant was charged with two offences: aggravated burglary and indecent assault. He does not dispute that the events described by Ms N occurred, but disputes that he was the offender. At trial, the applicant relied upon Ms N's description of the offender. She described the offender in terms that did not match the applicant's appearance. Rather, her description was similar to Mr H, save for age and what he had been wearing. However, the Crown relied on DNA recovered from the scene, several samples of which were 100 billion times more likely if the applicant was the source than if he were not the source, according to expert testimony from Mr Gellatly. There was no challenge to Mr Gellatly's expertise, or to the continuity of the samples tested.

3 In addition to the DNA evidence, the Crown adduced evidence from an expert, Professor Thompson, in relation to the way in which memories are formed, stored and retrieved, and how those processes can be disrupted by the experience of a traumatic event. He also gave evidence about 'unconscious transference', when a person may see somebody and mistakenly attribute that sighting to a different person, who had been seen earlier. His evidence was general in nature; he did not examine or speak with Ms N and he did not express any opinion about the effect of the offending on her memory. Nonetheless, his evidence was adduced to provide an explanation to the jury of why Ms N's description did not match the offender's appearance. The Crown also relied on the fact that Ms N's description was similar to Mr H, who the jury had seen giving evidence, and invited the jury to consider that when considering Professor Thompson's evidence.

4 The applicant was convicted and sentenced as follows:

5 The applicant advances two proposed grounds of appeal:

Ground 1:

A substantial miscarriage of justice has been occasioned by reason of the learned trial judge and the learned prosecutor making the probabilistic reasoning error known as 'the prosecutor's fallacy'.

Ground 2:

The learned trial judge erred in admitting the evidence of Professor Thompson, in circumstances where the Crown had indicated that the victim would not be recalled.

6 In support of ground 1, the applicant seeks to rely on a report provided by Dr Hallam, an independent forensic biology consultant with experience in interpreting DNA profiles derived from sampling and testing DNA and the statistical analysis used to support the conclusions of the evaluation of DNA profiles.

7 The application for leave to appeal was filed some two years and three months out of time, thus an application was made for an extension of time. In our opinion, the application for an extension of time should be refused. That is because the explanation for the delay in filing the application for leave to appeal is inadequate and because, upon consideration of the merits of the proposed grounds of appeal, we do not think there has been any substantial miscarriage of justice. Our reasons for that conclusion are as follows.

8 In order to consider the application for an extension of time, it is necessary to set out a brief chronology of relevant events.

9 The applicant was convicted on 21 November 2018. He was sentenced on 1 February 2019. Accordingly, the time for filing a notice of application for leave to appeal lapsed on 1 March 2019.[1] The notice was ultimately filed on 9 June 2021. The reasons for the delay in filing were set out in an affidavit of Ms Milides, the solicitor acting for the applicant. She relevantly deposed as follows:

(a) At the time of the trial and plea hearing, the applicant was represented by a different firm of solicitors.

(b) On 11 June 2020, the applicant instructed Milides Lawyers to act for him, and to obtain advice from a DNA expert about the reports referred to in the prosecution case, and to brief counsel for an advice concerning leave to appeal against conviction. The file from the previous solicitors was delivered to Milides Lawyers on 17 June 2020. It did not contain the trial transcript.

(c) Ms Milides sent a fee estimate to the applicant on 21 August 2020.

(d) On 3 September 2020, Ms Milides requested transcript from the Victorian Government Recording Services ('VGRS'). Some transcript was provided on 4 September 2020.

(e) Also on 3 September 2020, Ms Milides contacted Dr Hallam by email. Dr Hallam requested further materials in order to prepare a report and provide a fee estimate.

(f) On 14 September 2020, Milides Lawyers wrote to the Office of Public Prosecutions ('OPP') seeking certain material that had not been in the file provided by the applicant's previous solicitors. The OPP provided the material on 16 September 2020.

(g) Milides Lawyers sent all material then on file to Dr Hallam on 17 September 2021 and funding was arranged for her to prepare her report.

(h) On 18 November 2020, further transcript was received from VGRS and was sent to Dr Hallam.

(i) Dr Hallam sent her report to Milides Lawyers on 12 February 2021.

(j) On 16 February 2021, Milides Lawyers provided it to counsel to inquire whether she would accept a brief, and to obtain a fee estimate.

(k) On 8 March 2021, a fee proposal was sent to the applicant's family.

(l) On 1 and 26 April 2021 counsel requested further material, including the video evidence of the complainant. This was requested from the County Court on 4 May 2021. The affidavit does not state when the video was provided to Milides Lawyers.

(m) On 21 April 2021, a conference occurred between counsel, Ms Milides and the applicant.

(n) On 11 May 2021, a conference occurred between counsel, Dr Hallam and Ms Milides.

10 On 28 May 2021, Ms Milides obtained instructions from the applicant about his delay in engaging a solicitor to act for him in relation to an appeal. She deposed that his instructions were as follows:

(a) At the time of the trial, the applicant was estranged from his family and had no income; his case was funded by legal aid.

(b) Upon conviction, the applicant was attended upon in the cells by his trial counsel, but thereafter had no further attendances or written advice concerning an appeal.

(c) The applicant's understanding was that an appeal would not be funded by legal aid because his sentence was 'in the range'. This was stated in written correspondence from his previous solicitor.

(d) The applicant attempted to make contact with his previous lawyers by telephone on more than one occasion but was unsuccessful.

(e) None of the applicant's family members were aware of his trial as it was occurring, his plea following conviction, or his sentence.

(f) While in custody, in about March or April 2020, the applicant wrote to his cousin, who suggested that he should engage a solicitor to review his case. This resulted in the applicant's brother offering to fund an appeal.

(g) The applicant's brother had difficulties in funding an appeal, as he is in a wheelchair due to paralysis and has limited income and savings. Funding from the applicant's brother had been paid in instalments to Milides Lawyers.

11 The applicant submits that, in light of the matters to which Ms Milides deposes, 'there are good reasons for the delay'. He contends that the delay has been explained, was through no fault of his own, and that there is a significant risk that an innocent man has been convicted. Thus, he submits, it is in the interests of justice to extend the time for filing the notice of application for leave to appeal.

12 The Crown opposes the application for an extension of time. The Crown points out that the verdicts had been delivered two and a half months before the sentence, which meant that the applicant had some three and a half months to consider whether to appeal against his conviction. While some explanation for the delay prior to instructing new solicitors is given, the Crown points out that the affidavit is silent as to whether the prospects of an appeal against conviction were discussed or considered following the jury verdict or at the time of the final attendance by the applicant's previous counsel.

13 Ultimately, we are prepared to infer from Ms Milides' affidavit that a lack of funding was the principal reason that the applicant did not promptly pursue an appeal, coupled with his difficulties in contacting his then solicitors and his belief that there were no real prospects of appealing. Once his brother agreed to assist with funding an appeal, the applicant then took steps to instruct new solicitors. Nonetheless, that initial delay was approximately 16 months. That is a very extensive delay in the circumstances.

14 Thereafter, there were various matters that contributed to the delay, including material missing from the files of the previous solicitors and, we infer, a delay in provision of instructions to engage an expert and brief counsel. Nonetheless, the missing transcript was not requested from the VGRS until 3 September 2020, some two and a half months after the original file had been received and the lack of transcript observed. Likewise, other material missing from the original file was not requested from the OPP until 14 September 2020, some three months after the original file had been received. And the video recording of Ms N's evidence was not requested until 4 May 2021, some 10 months after the original file had been received.

15 In addition, the preparation of the expert report took some five months, from 17 September 2020 to 12 February 2021. Even allowing for the holiday period, that was a relatively long period for a report in relation to a matter where the applicant was already out of time to file his appeal. No evidence has been provided as to the reason that report required five months to prepare, or whether Dr Hallam was requested to provide the report urgently. Likewise, and while accepting that counsel may well be busy on numerous matters, it appears that counsel commenced work on the matter on an unknown date in March (after 8 March 2021), but that advice was not provided in relation to the filing of an appeal until an unknown date after 11 May 2021, a period of at least one and a half months. No evidence has been adduced as whether counsel was briefed on the basis of urgency, or as to how swiftly, after counsel's advice was received, the relevant documents were prepared and filed.

16 It was common ground before us that the principles governing an extension of time are those summarised by this Court in Madafferi v The Queen:

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay - and the reasons for it - and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[2]

17 In light of those principles, four key considerations inform the question whether an extension of time should be granted:

(a) the length and explanation for the applicant's delay;

(b) the prospects of success of the proposed ground of appeal;

(c) the public interest in finality in criminal proceedings; and

(d) the public interest in an accused not being subject to a wrongful conviction.

18 We agree with the Crown that the delay in this case is inordinate and that the applicant and his lawyers have failed to satisfactorily account for it. While Ms Milides sets out the chronology of events, the delay in the conduct of the case after receipt of the original file from the applicant's previous solicitors has not been adequately explained.

19 Even accepting that funding for an appeal was not available until March or April of 2020, and that the applicant had not had written advice from counsel about an appeal, some responsibility for the delay lies with the applicant, because he did not instruct his solicitors until mid-June 2020, 16 months after he had been sentenced. Responsibility for the delay thereafter rests with the applicant's lawyers.

20 The applicant accepted before us that the process undertaken by the solicitors and others was 'done slowly'. He submits that, because the delay was already significant by the time the solicitors were instructed, it was appropriate for the solicitors to proceed carefully and methodically and without urgency. We do not accept that submission. Initial delay is not a basis for further delay. To the contrary, in light of the existing delay, the solicitors ought to have taken steps urgently to obtain materials, requested an urgent and timely report from Dr Hallam, and requested an urgent advice from counsel. There is no evidence that they did so.

21 There is an important public interest in finality in criminal proceedings. A delay of more than two years undermines that public interest. Further, if the appeal were to be allowed on either ground, a retrial would be necessary. As this Court has recognised, the continuation of proceedings after the conviction and sentence of an accused can prolong the trauma of victims, and retrials can cause stress and inconvenience to victims and witnesses.[3] Further, although Ms N's evidence was recorded, it is possible that she might be required to give evidence again, if ground 2 were to succeed. In those senses, there is prejudice to the Crown by the delay in filing the notice of application for leave to appeal.

22 However, it is axiomatic that no citizen should be convicted of an offence unless the evidence is capable of establishing beyond reasonable doubt that he or she committed the offence. There is thus a countervailing public interest, 'that an accused who is convicted of an offence which cannot be supported by the evidence is entitled to apply to this Court for an order expunging the wrongful conviction'.[4] For that reason, it may be appropriate in some cases to grant an application to extend time even where there has been an inordinate delay, lacking satisfactory explanation. That will particularly be so if the delay was, in whole or in part, not the responsibility of the applicant and if the grounds of appeal have sufficient prospects of success.[5]

23 It is thus necessary to evaluate the applicant's proposed grounds of appeal. However, for the reasons that follow, we consider that they have no real prospects of success.

24 The prosecutor's fallacy in the context of DNA evidence was helpfully explained by the United Kingdom Court of Appeal in 1996 in R v Doheny and Adams.[6] The Court gave an example in relation to a sample found at a crime scene (the 'crime stain'):

It is easy, if one eschews rigorous analysis, to draw the following conclusion:

1. Only one person in a million will have a DNA profile which matches that of the crime stain.

2. The defendant has a DNA profile which matches the crime stain.

3. Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.

...

Taking our example, the prosecutor's fallacy can be simply demonstrated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the Defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt.[7]

25 The prosecutor's fallacy involves the 'transposition of the conditional'; that is, it takes a statement about the probability of one thing (X) relative to another (Y), and inverts it to a statement about the probability of Y relative to X. In the DNA context, the prosecutor's fallacy takes the 'random match probability' - in the present case, the probability of a DNA match if the defendant was the (or a) source of the DNA (which is evidence that an expert is properly able to give) - and inverts it to a probability that the defendant is the (or a) source, given the DNA match (which is not evidence an expert is properly able to give).

26 In short, as Doyle CJ explained in R v Karger, _'_the risk is that the jury will reason that the evidence of the likelihood ratio or match probability expresses the probability that the incriminating DNA was the DNA of the accused. Properly understood, it does no such thing. Even worse is the risk that the jury will treat the likelihood ratio or match probability as expressing the probability that the accused is guilty.'[8]

27 It is apparent from the passages quoted from Doheny and Adams that the prosecutor's fallacy can seriously distort the probability of the defendant being the person whose DNA was found at the crime scene. In that case the Court of Appeal explained that, if the prosecutor's fallacy were applied, there was a 'million to one probability that the defendant left the crime stain'.[9] But, as the Court went on to point out, that was not correct. Bearing in mind the size of the UK population, and that the sample was from a male person, in such a case there would be approximately 26 other men in the UK who would have shared the DNA profile and so could have been the offender, thus the correct chance that the defendant's DNA was found at the scene was 1 in 26.[10] In such a context, the DNA evidence could not be conclusive and other evidence concerning the crime would be necessary in order to support a conviction.

28 However, the UK Court of Appeal also went on to observe that there comes a point where the prosecutor's fallacy does not result in a significant misrepresentation of the DNA evidence:

The more remote the random occurrence ratio, the less significant will be the adoption of the 'Prosecutor's Fallacy', until the point is reached where that fallacy does not significantly misrepresent the import of the DNA evidence.[11]

29 The Court took the view that a random occurrence ratio of 1 in 40 million was of a sufficient magnitude that, if that were the ratio, the jury would have reached the same verdict even if they had been properly directed.[12]

30 The Court also observed that as the science of DNA analysis develops, 'the stage may be reached when a match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence'.[13] The Court did not consider that, in 1996, that point in time had yet arrived. There was no evidence before us as to whether that stage of development of the science has arrived, save for the magnitude of several of the random occurrence ratios that was calculated by Mr Gellatly.

31 The remarks of the UK Court of Appeal in Doheny and Adams have been referred to with approval in various Australian cases, including decisions of this Court.[14] Most recently, in Xie the NSW Court of Criminal Appeal, after quoting from Doheny and Adams, observed that 'the necessity to guard against the adoption of the fallacy still pertains today, however it is also necessary to bear in mind the advances in DNA analysis since GK that have, in some instances, led to extremely high levels of correlation between an accused or victim's DNA and a reference sample'.[15]

32 Mr Gellatly gave evidence concerning the DNA testing and his method of analysis as well as evidence in relation to the DNA samples obtained from or near the crime scene. In relation to DNA matching, Mr Gellatly said this:

So when we have - when we obtain DNA - a DNA profile from an evidentiary sample from a crime scene, let's say, what we do is we go through - the process would be to determine the minimum number of contributors. From there we - we make an assumption on the number of contributors.

All right, first thing, can I just - because of jargon what do you actually mean by a 'contributor'?---A contributor is, um, a person that is contributing to that DNA sample.

So again if you took the cup that I've been drinking from?---Yes.

And you took the saliva from that?---Yes.

And found a DNA profile?---Yes.

I would be the - and matched my DNA to it, then you could say I'm the contributor?---So we'd never say that you were the contributor. We've never - we haven't DNA profiled everybody in the world, so we don't say that it's you. But what we'll do is we'll look at how common and how rare the DNA, um, at those locations are and we'll give an estimate of the chance that it's - that it's you.

33 There were five samples from which DNA results were obtained after testing, which came from two different sources:[16] a windowsill at a house close to Ms N's home, where fluid had been found,[17] and a pillowcase that was taken from a pillow recovered from Ms N's house.[18] In addition, reference samples were taken from Ms N and others who lived at her address (Ms J and Mr M), as they may have contributed to some of the samples.

34 The windowsill source was divided into two parts, known as the 'sperm fraction' and the 'non-sperm fraction'.[19]

(a) Mr Gellatly's evidence about the sperm fraction was as follows:

When I compare Mark Ali, um, the DNA evidence is 280,000 times more likely if he is the source. [Ms J], [Mr M] and [Ms N] were excluded as the source.

(b) Mr Gellatly's evidence in relation to the non-sperm fraction was as follows:

When I compare Mark Ali, the DNA evidence is 100 billion times more likely if he is the source.

HER HONOUR: One hundred?---One hundred billion times more likely.

Billion or million?---Billion.

Yes, thank you. A billion times more likely than what?---So what we do is we look at the - the two propositions, the two propositions being that he is the source versus that he is not the source. So we look at the - the strength of the evidence versus those two propositions.

MR NIBBS: All right. So when you look at that question that he - whether he is the source or he is not the source, your conclusion was that he is - or 100 billion times more likely that he is the source?---Well, the DNA evidence is 100 billion times more likely if - if he is the source, yes.

Than not the source?---Yes.

35 Four samples were taken from the pillowcase, at different locations. Mr Gellatly's evidence in relation to the pillowcase was as follows:

Regarding Mark Ali, the DNA evidence is 59,000 times more likely if Mark Ali is a contributor.

Than not a contributor?---Than - yes, sorry, the DNA is, ah, 59 times - 59,000 times more likely, ah, if he is a contributor than if he isn't.

All right. What about [Ms J]?---The DNA evidence is 93 billion times more likely if [Ms J] is a contributor.

Was [Mr M]'s DNA found on them?---When he was compared, the DNA evidence is 100 billion times more likely if [Mr M] is a contributor.

And what about [Ms N]?---The DNA evidence is 460,000 times more likely if [Ms N] is a contributor.

The DNA evidence is 100 billion times more likely if Mark Ali is a contributor.

And Ms [J]?---The DNA evidence is 100 billion times more likely if [Ms J] is a contributor.

Mr [M]?---DNA evidence is 6.1 billion times more likely if [Mr M] is a contributor.

And what about [Ms N]?---The DNA evidence is more likely if she is not a contributor.

Regarding Mark Ali the DNA evidence is 8.6 billion times more likely if he is a contributor.

For Ms [J]?---The DNA evidence is 100 billion times more likely if [Ms J] is a contributor.

For Mr [M]?---The DNA evidence is 100 billion times more likely if [Mr M] is a contributor.

And for Ms [N]?---The DNA evidence is nine times more likely if [Ms N] is a contributor.

The DNA evidence is 100 billion times more likely if Mark Ali is a contributor.

For Ms [J]?---The DNA evidence is 13 million times more likely if [Ms J] is a contributor.

Mr [M]?---The DNA evidence is 100 billion times more likely if [Mr M] is a contributor.

And what about Ms [N]?---The DNA evidence is 1.8 million times more likely if [Ms N] is a contributor.

Mr Gellatly also accepted in cross-examination that, in relation to at least one sample from the pillow, it was possible that there was a fifth (unknown) contributor of DNA.

36 The applicant does not contend that Mr Gellatly committed the prosecutor's fallacy in giving his expert evidence. However, he contends that both the prosecutor and the trial judge committed the prosecutor's fallacy by transposing the conditional. In relation to the prosecutor, he points to the exchange extracted at [34(b)], above, and notes that Mr Gellatly 'subtly corrected the transposition', albeit not entirely adequately.

37 In relation to the trial judge, the applicant contends that her Honour committed the prosecutor's fallacy on multiple occasions in her charge to the jury. The applicant contends that in summarising Mr Gellatly's evidence, her Honour conflated two conditional probabilities, namely:

(a) The probability that a DNA sample taken from an innocent person matches that found at the murder scene given that the person is innocent (being the correct approach);

(b) The probability that a person is innocent given that their DNA sample matches that found at the scene of the crime (being the prosecutor's fallacy).

38 The applicant pointed, by way of example, to the following statements by the trial judge:

1. Window swab

(i) Sperm fraction: It was '280,000 times more likely that this came from the accused man, Mark Ali, than it did not come from him'.

(ii) Non-sperm fraction: It was '100 billion times more likely to have come from Mark Ali than it did not come from him'.

2. Pillowcase

(i) Sample 2.1 - middle section upper surface: It was '59,000 times more likely that Mr Ali had been a contributor to than not'.

(ii) Sample 2.2 - middle section lower surface: It was '100 billion times more likely if the accused man was a contributor than if he was not'.

(iii) Sample 2.3 - plain end: It was '8.6 billion times more likely that the accused was a contributor than he was not'.

(iv) Sample 2.4 - patterned/floral end: It was '100 billion times more likely if Mark Ali was a contributor to this section than if he was not'.

39 The applicant filed with his submissions Dr Hallam's report, which, in addition to explaining the prosecutor's fallacy in mathematical terms, contains extensive discussion of decided cases concerning DNA evidence and the prosecutor's fallacy. In that sense it might be regarded as akin to a submission, rather than expert evidence. At the hearing, the applicant indicated that he did not propose to rely on the report as new evidence. However, the parties accepted that we could have regard to that report to the extent that it was adopted by the applicant as part of his submissions.

40 The Crown submits that the prosecutor did not engage in the prosecutor's fallacy. The Crown also submits that it is not necessary to decide whether the trial judge committed the prosecutor's fallacy, because even if her Honour had done so, that could not have produced a substantial miscarriage of justice in this case. That is because several of the random occurrence ratios were of such a magnitude that the prosecutor's fallacy would not significantly misrepresent the import of the DNA evidence (relying on Doheny and Adams).

41 The Crown further submits that, at trial, it was no part of the applicant's case to attack the DNA evidence or contend that the DNA evidence found at the scene was not his. Rather, the defence case was to query how the sample had got to where it was, when it had got there and whether the sample was indicative of the presence of a further person, other than the applicant, who might have committed the offences.

42 We accept the applicant's submission that both the prosecutor (in a single question) and the trial judge (in several statements in her summing up to the jury) committed the prosecutor's fallacy. However, we accept the Crown's submission that the applicant's case at trial, as reflected in the closing address, was implicitly to accept that he was a contributor to the DNA samples found on the pillowcase and at the nearby house. Given that, we consider that there was no miscarriage of justice occasioned by the trial judge's error.

43 As already noted, the applicant did not challenge Mr Gellatly's expertise, or his evidence more generally. There was no suggestion of any concerns about the integrity of the samples by reason of lax or inappropriate conduct in obtaining and handling samples. Nor was there any issue about the validity of the system used to conduct the testing. Although in cross-examination of Mr Gellatly the applicant's counsel pursued a line of questioning concerning the racial make-up of the various databases used,[20] no submissions based on that line of questioning were made in the applicant's closing address to suggest that these aspects of the DNA testing regime undermined the results of the DNA testing. To the contrary, in the course of submissions as to the admissibility of Professor Thompson's evidence, counsel for the applicant said that '[t]he defence are not challenging the DNA evidence to suggest it's false'.

44 Consistently with that submission, the applicant's counsel said to the jury that he 'didn't attack anything Mr Gellatly said'. Rather, the applicant emphasised the moveable nature of the pillow and the fact that expert evidence concerning the DNA analysis could not say how the DNA came to be on the pillow or when it had got there. He also submitted that there could have been an additional contributor to the sample on the pillowcase. No submissions were made in relation to the DNA found on the windowsill of the nearby house. That is, the applicant implicitly, if not expressly, accepted that his DNA was found in the samples that had been analysed by Mr Gellatly.

45 In that context the trial judge's error in charging the jury in a manner that inaccurately described the effects of Mr Gellatly's (clearly presented) DNA evidence and (correctly stated) likelihood ratios was not, in fact, damaging to the way in which the applicant advanced his case to the jury. That is, the prosecutor's fallacy is not a relevant error unless a fact in issue at the trial was whether the DNA found at the scene included the defendant's DNA. That was not put in issue at the applicant's trial.

46 Furthermore, in his evidence Mr Gellatly repeatedly described the likelihood ratios in a manner that was unimpeachable: 'the DNA evidence is [x] times more likely if the applicant is a contributor than if he isn't'. Mr Gellatly's evidence was that several of those ratios provided 'extremely strong support' for the evidence that the applicant was a contributor to DNA samples taken from both the windowsill and the pillow. Given the strength of the evidence, the judge's unfortunate re-formulation of Mr Gellatly's evidence could have had little prejudicial impact, if any.

47 Thus, although there was an 'irregularity' in the trial, by reason of the trial judge's description of Mr Gellatly's evidence, it was not one that led to a substantial miscarriage of justice so as to require us to allow the appeal under s 276 of the Criminal Procedure Act.

48 Ground 2 concerns the admission of Professor Thompson's evidence. The applicant's submission is that that evidence should not have been admitted in circumstances where the Crown did not propose to recall Ms N.

49 Professor Thompson's evidence has been briefly described above. It is not necessary to set it out in any greater detail. Rather, it is necessary to consider the way in which the admissibility of that evidence was dealt with at trial.

50 The Crown relied on ss 55 and 79 of the Evidence Act 2008 ('Evidence Act') as the basis for admission of Professor Thompson's evidence.[21] It was common ground that Ms N's description of her assailant did not match the applicant. The defence case was that Ms N was entirely reliable and credible and her description of her attacker ought to be accepted. The Crown thus sought to use Professor Thompson's evidence to rebut that aspect of the defence case, and explain why Ms N might have made a mistake in her description. The fact that, based on Professor Thompson's evidence, an inference might be drawn that Ms N's description was in fact of Mr H, and that 'unconscious transference' had occurred, was not revealed to the applicant until after submissions concerning the admissibility of Professor Thompson's evidence had commenced.

51 The applicant initially objected to the admission of Professor Thompson's evidence on several grounds concerning the Evidence Act:

(a) First, on the basis that it was not relevant and so was not admissible under s 55. Two arguments were advanced under this head: that the evidence was general in nature and did not concern, directly, Ms N's own memory on the night in question; and that, in the absence of Ms N being recalled and asked questions concerning her description, there was no foundation to which Professor Thompson's evidence was relevant.

(b) Secondly, on the basis that it was not admissible under s 79. In effect, the same argument as had been put in relation to s 55 was put again in relation to s 79.

(c) Thirdly, on the basis of the discretion to exclude evidence under s 135 or s 137, that its probative value was outweighed by its unfair prejudicial effect. This argument turned on the submission that Professor Thompson's evidence was being used to 'bolster the reliability' of Ms N, 'by explaining away her deficits'. It also turned on the general, rather than specific, nature of Professor Thompson's evidence.

(d) Finally, the applicant relied on the common law 'Haddara discretion' to exclude evidence,[22] on essentially the same basis as had been put in relation to ss 135 and 137.

52 However, in the course of argument, the applicant accepted that Professor Thompson's evidence met the criteria for admission under s 79. He also abandoned the s 137 argument (and, it appears, the s 135 and common law discretion arguments), based on the understanding that the trial judge would direct the jury about how to use expert evidence and that Professor Thompson's evidence did not prove the offence. Rather, the applicant sought to have the trial judge limit the use of the evidence, if admitted. In that regard, the applicant was concerned about certain examples Professor Thompson provided in his report. In response to the applicant's submissions on that issue, the Crown stated that it would not lead the examples in question, and those examples were not in fact led. Following that concession by the Crown, the applicant's counsel stated that, if the report was ruled admissible, he would no longer take issue with Professor Thompson's evidence.

53 The trial judge admitted Professor Thompson's evidence. She did not limit its use in the manner requested by the applicant. However, as foreshadowed, the Crown did not lead evidence of the examples that had been in the written report.

54 In his closing address, counsel for the Crown said this about Professor Thompson's evidence:

The other thing that is important is that Ms [N] has made is clear in her description the prosecution concede this, is that the description that she gives does not match Mr Ali and it's important then, particularly with having heard Professor Thompson's evidence this morning, remember the circumstances in which she had to look at that person and whether or not that would be a clear memory in her mind.

55 After dealing with the circumstances in which Ms N saw the offender, and the man in the street, he said this:

Now when you look at that description remember [Mr H] coming into court. He was a man who said that he had called out and said for this person to wait. Look at him and that memory of you - or that you have of him coming into the courtroom. Other than the age, and other than the fact that he says he was wearing a singlet and shorts, everything else is almost a match to that. Remember, that she at the time didn't know if that was the assailant or not. So consider that when you're also looking at Professor Thompson's evidence.

56 And then, after discussing the DNA evidence, counsel for the Crown said this:

So when you examine that evidence, look at it carefully. Look at it clearly. I expect that the defence will say, no, the person is as described. But when you look at the description of Ms [N] had actually provided, remember what Mr [H] looked like, remember the circumstances of what had occurred and also the evidence of Professor Thompson.

57 By proposed ground 2, the applicant submits that the trial judge erred in admitting Professor Thompson's evidence in circumstances where the prosecution had indicated that the victim would not be recalled. In both his written and oral submissions the applicant put his argument under this ground as one based on unfairness to the applicant.

58 At trial this point was raised on the basis that the Crown had not put to Ms N that she might have been identifying Mr H, or otherwise that she was mistaken in the description she gave of her assailant. Nor was defence counsel given the opportunity to have Ms N disavow that she might have been identifying Mr H. Before us, the applicant contended that 'it was quite unfair to the victim and ultimately to the applicant' to adduce Professor Thompson's evidence in those circumstances.

59 In response, the Crown contends that the gravamen of the applicant's case on ground 2 is not relevance, or a failure to satisfy s 79 of the Evidence Act; it is that the applicant has suffered unfair prejudice by admission of Professor Thompson's evidence because the possibility of 'unconscious transference' was not put to the complainant and she was not recalled so that questioning of that kind might occur. However, the Crown submits that an argument based on unfairness was expressly disavowed at trial. Rather, the applicant relied solely on relevance as the basis for his objection to this evidence. Further, the Crown points out that the applicant expressly stated that he did not want Ms N recalled. The Crown contends that an argument as to unfair prejudice expressly abandoned below, in the absence of any suggestion of incompetence, could not be productive of a substantial miscarriage of justice.

60 In the alternative, the Crown submits that even if the trial judge erred in admitting Professor Thompson's evidence, no substantial miscarriage of justice has occurred, particularly in light of the DNA evidence.

61 We accept the applicant's submission that Professor Thompson's evidence concerning unconscious transference should not have been admitted in the absence of Ms N being recalled. This evidence was adduced by the Crown to rebut the key argument for the defence, namely that Ms N had described her attacker and he looked nothing like the applicant. It is not necessary to decide whether the evidence was inadmissible simply because it was general in nature, rather than involving direct evidence about Ms N and her processes of memory formation, storage and retrieval, although we are inclined to think it was not.[23] Rather, it was the admission of the evidence in the absence of Ms N being recalled that was unfair in the particular circumstances of this case.

62 That is because the suggestion that Ms N had undertaken a form of 'unconscious transference' and described Mr H, instead of the offender, was not raised by the Crown until well after Ms N had given her recorded evidence. In the absence of her being recalled, the Crown had not laid any evidentiary foundation for the application of Professor Thompson's evidence. In particular, Ms N had not given any evidence about whether she had seen Mr H's face or, assuming she had seen his face, for how long she had seen it, or how clearly she had seen his face given that it was dark.

63 The only evidence from Ms N touching on this issue was that she had turned around and seen a man running in the street, that he had yelled out to her, and that she did not know if it was the same man who had assaulted her. Mr H's evidence was that Ms N was running, had 'momentarily turned towards' him, and then kept running. He was unable to say whether she 'looked at him' when he called out to her. He also gave evidence that it was dark, but not 'pitch black'. Further, the jury was, in substance if not in terms, invited to conclude that unconscious transference had occurred in relation to Mr H, in circumstances where the defence had not had an opportunity to cross-examine Ms N in relation to those matters.

64 We note that, in the course of argument at trial, the applicant's counsel said that he did not want to have Ms N recalled. The Crown submits that that is relevant to whether ground 2 can succeed. We disagree. It is unsurprising that the applicant did not wish to have Ms N recalled, given her evidence as to the description of the offender. But, nonetheless, the applicant maintained his objection to Professor Thompson's evidence on the ground of relevance in circumstances where the Crown did not propose to recall Ms N. It was not for the applicant to cure what he said was a defect in the evidentiary foundation for Professor Thompson's evidence. Further, there was nothing inconsistent in these positions. The applicant was entitled both to object to Professor Thompson's evidence being admitted if Ms N was not recalled, and also to indicate his preference that she not be recalled (with the consequence, from his perspective, that the evidence should be excluded).

65 We consider that the evidence concerning 'unconscious transference' involved unfair prejudice to the applicant in circumstances where Ms N was not recalled so as to lay an evidentiary foundation for Professor Thompson's evidence concerning unconscious transference. That unfairness outweighed the probative value of the evidence, which was slight in the absence of the evidentiary foundation. This aspect of Professor Thompson's evidence thus ought to have been excluded under s 137 of the Evidence Act.

66 However, although this constituted an irregularity in the trial, we do not think that it resulted in a substantial miscarriage of justice. There are two reasons for that conclusion.

67 The first reason concerns the manner in which Professor Thompson's evidence was dealt with in the course of the trial. As explained above, although the applicant initially objected to the admission of Professor Thompson's evidence on the basis of unfairness (including under s 137), he ultimately abandoned that objection at trial. In light of that forensic decision, it was not a substantial miscarriage of justice for the trial judge not to have excluded the evidence on grounds of unfairness.

68 In addition, while Professor Thompson's evidence might have been properly excluded as irrelevant in the absence of a proper foundation for it, which objection was maintained below and ruled upon by the trial judge, no argument that it ought to have been excluded as irrelevant was put by the applicant on the appeal. The applicant chose to rely only on unfairness on the appeal, both in the formulation of the ground of appeal and in his written and oral submissions, notwithstanding that he had abandoned that point below. Nor was any application made to amend his notice of appeal to raise an issue of relevance. It is thus not appropriate for us to resolve the issue of relevance in the present circumstances.

69 The second reason for concluding that there was no substantial miscarriage of justice is that, in light of the strength of the DNA evidence, we consider that the applicant's conviction was inevitable.[24] Our reasons for so concluding are as follows.

70 As we have explained in our consideration of ground 1, Mr Gellatly's evidence concerning the DNA present in the samples he tested was not challenged at trial. The applicant did not contend that his DNA was not present in the samples that were tested. Rather, he pointed to the fact that there was no evidence as to when or how the DNA got onto the pillowcase. But Ms N's evidence was that the pillow (inside the pillowcase) had been handled by the offender in the course of the assault. That was evidence as to when and how the applicant's DNA got onto the pillowcase. And there was no evidence to suggest that his DNA might have got onto the pillowcase at any other time or in any other manner.

71 In addition, Mr Gellatly's evidence provided 'extremely strong support' for a conclusion that the applicant's DNA had been found on a windowsill at a house a few doors down from Ms N's home, from a sample of fluid deposited there that same evening (based on the evidence of two women who lived at that other house). That was a fixed location. Again, the applicant did not contend that his DNA had not been found at that location.

73 For the reasons given above, the applicant's application for an extension of time to file his notice of application for leave to appeal against conviction is refused.

[1] Criminal Procedure Act 2009, s 275(1) ('Criminal Procedure Act').

[2] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations omitted).

[3] Bolton (a pseudonym) v The Queen [2021] VSCA 237, [25] (Kyrou and Kennedy JJA) ('Bolton').

[4] Bolton [2021] VSCA 237, [26] (Kyrou and Kennedy JJA).

[5] As occurred, for example, in Bolton, in what were described as 'unusual circumstances', involving a Crown concession that the proposed ground of appeal was 'reasonably arguable': [2021] VSCA 237, [27] (Kyrou and Kennedy JJA).

[6] [1997] 1 Cr App R 369; [1996] EWCA Crim 728 ('Doheny and Adams').

[7] Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 372-3 (Phillips LJ for the Court); [1996] EWCA Crim 728.

[8] R v Karger [2002] SASC 294; (2002) 83 SASR 135, 139-40 [12]; [2002] SASC 294 ('Karger').

[9] Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 373 (Phillips LJ for the Court); [1996] EWCA Crim 728.

[10] Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 373 (Phillips LJ for the Court); [1996] EWCA Crim 728.

[11] Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 379 (Phillips LJ for the Court); [1996] EWCA Crim 728.

[12] We note for completeness that Doheny's appeal was allowed as a consequence of other deficiencies in the expert evidence, which reduced the random occurrence ratio so that there could have been some 20 other persons with the same DNA profile as Doheny and the crime stain. In addition, pubic hairs from a person other than Doheny had been discovered at the scene: Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 380-1 (Phillips LJ for the Court); [1996] EWCA Crim 728.

[13] Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, 373 (Phillips LJ for the Court); [1996] EWCA Crim 728.

[14] See, eg, R v Berry [2007] VSCA 202; (2007) 17 VR 153, 169-70 [56] (Redlich JA); [2007] VSCA 202; Xie v The Queen [2021] NSWCCA 1; (2021) 386 ALR 371, 458-9 [307] (Bathurst CJ, RA Hulme and Beech-Jones JJ); [2021] NSWCCA 1 ('Xie'); R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317, 328-9 [48], 329 [51] (Mason P); [2001] NSWCCA 413 ('GK'); R v Keir [2002] NSWCCA 30; (2002) 127 A Crim R 198, 202-3 [22], 205-6 [31] (Giles JA); [2002] NSWCCA 30; Karger [2002] SASC 294; (2002) 83 SASR 135, 139-40 [12] (Doyle CJ), 174-5 [155], 179 [184], 180 [186] (Gray J); [2002] SASC 294.

[15] Xie [2021] NSWCCA 1; (2021) 386 ALR 371, 459 [311] (Bathurst CJ, RA Hulme and Beech-Jones JJ); [2021] NSWCCA 1. We note that in Xie the NSW Court of Criminal Appeal made some remarks about the applicability of some aspects of Doheny and Adams to the NSW context: at [313]-[318]. However, those aspects concerned the precise nature of the questions put and the answers given in Doheny and Adams, which are not presently relevant.

[16] There were two other possible sources of DNA evidence - a shawl and a make-up wipe. No DNA profile was obtained from the sample taken from the shawl. In relation to the make-up wipe, Mr Gellatly's evidence was that 'the DNA evidence [was] more likely if [the applicant was] not a contributor'.

[17] The occupants of the house had told police that they heard someone outside their window on the night of the offending against Ms N: Reasons, [3].

[18] Ms N had told police that the offender had been holding a pillow prior to indecently assaulting her: Reasons, [2].

[19] These are terms used to denote the weight of the two fractions; the term 'sperm fraction' does not mean that that part of the sample contains sperm or semen; and Mr Gellatly's evidence was that no sperm or semen was found in the 'sperm fraction'. The applicant does not take issue with the use of this term by Mr Gellatly or other participants in the trial.

[20] In the applicant's counsel's cross-examination of Mr Gellatly, he pursued a line of questioning that focussed on the racial make-up of the various DNA databases used by Mr Gellatly in his testing, including the fact that the 'Caucasian' database included DNA from persons of Middle Eastern and Indian descent, and the fact that there is no database specific to persons from Lebanon.

[21] The Crown did not seek to rely on s 108C of the Evidence Act or s 388 of the Criminal Procedure Act.

[22] See Haddara v The Queen (2014) 43 VR 53; [2014] VSCA 100.

[23] See discussion in MA v The Queen [2013] VSCA 20; (2013) 40 VR 564, 568-9 [21]-[23], 570-1 [32]-[34], 574 [43] (Osborn JA), 589 [89] (Redlich and Whelan JJA); [2013] VSCA 20.

[24] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 481 [32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.