Supreme Court of SA|2002-08-30

R v KARGER No. SCCRM-01-69 [2002] SASC 294 (30 August 2002)

CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- PARTICULAR GROUNDS --- MISDIRECTION AND NON-DIRECTION CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES AGAINST THE PERSON --- HOMICIDE --- MURDER EVIDENCE --- ADMISSIBILITY AND RELEVANCY --- HEARSAY

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - STATISTICS APPEAL AGAINST CONVICTION Deceased found strangled on her bed - Crown case was that the appellant was murdered during the course of a sexual attack - circumstantial case which included no forced entry - clothing cut and torn - blood-like stains found on deceased's clothing containing DNA material - evidence of relationship between appellant and deceased but no prior sexual relationship - appellant denied involvement and did not give evidence but called other witnesses and DNA experts - appellant convicted of murder after jury trial - whether judge wrongly admitted evidence of conversations that the deceased had with other persons prior to her death about the appellant - whether inadmissible hearsay and whether parts should have been excluded - whether conversations amounted to conduct which may allow inferences about the deceased's state of mind towards the appellant - whether judge's directions adequate as to the use of the evidence - appellant had conversation with police prior to his arrest at his home during a search - conversation was not recorded when audiotape recorder available and had been used during earlier conversations with the appellant that day - whether the conversation amounted to an `interview' and therefore attracted the provisions of section 74D-E of the Summary Offences Act 1953 (SA) - legislative scheme of section 74D-E and interpretation of the word `interview' - failure by police to comply with legislation - inadmissiblility of conversation - whether the interests of justice compelled its admission - rebuttal evidence led - admissibility of prior consistent statements - whether jury should have been warned that the evidence of possible anal penetration did not establish beyond reasonable doubt that it occurred - DNA evidence - statistical evidence - methods of presenting DNA evidence - accuracy, reliability and acceptability of DNA evidence - whether statistical evidence admissible form of expert evidence - prosecutor's fallacy - Bayes Theorem - challenge mounted to laboratory process followed by the South Australian Forensic Science Centre - scientific and laboratory errors suggested - whether evidence of likelihood ratio should have been excluded - Crown onus to exclude the possibility of laboratory error - whether judge's directions were adequate - procedures to be adopted with respect to reception and presentation of DNA evidence and directions concerning that evidence - whether summing up lacked balance and judge failed to adequately put the defence case - defence whether judge's comments unfavourable to defence - whether it was a reasonable hypothesis that DNA material on deceased's clothing by way of accidental or innocent transfer on another occasion - whether directions with respect to appellant's esoteric knowledge and expert peer review adequate - whether verdict unsafe and unsatisfactory - verdict open on the evidence - no error demonstrated - Appeal dismissed.

Summary Offences Act 1953 (SA), s74C, S74D, S74E, referred to.

The Queen v Duke (1979) 22 SASR 46, discussed.

Walton v The Queen [1989] HCA 9; (1988-1989) 166 CLR 283;

R v Georgatsoulis [1994] SASC 4580; (1993-1994) 62 SASR 351;

R v Nayda (1999) 203 LSJS 465;

R v Byster [2001] SASC 343; (2001) 80 SASR 373;

R v Day (2002) 82 SASR 85;

McKinney & Judge [1991] HCA 6; (1990-1991) 171 CLR 468;

The Queen v Killick (1980) 24 SASR 137;

Reid v Kerr (1974) 9 SASR 367;

R v Martin [1996] SASC 5542; (1996) 86 A Crim R 198;

R v Fraser [1995] SASC 5335; (1995-96) 65 SASR 260;

The Nominal Defendant v Clements [1960] HCA 39; (1960-61) 104 CLR 476;

Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961-62) 106 CLR 23;

R v Karger [2001] SASC 64;

R v Lucas [1992] VicRp 56; (1991) 55 A Crim R 361;

R v Jarrett [1994] SASC 4596; (1993-94) 62 SASR 443;

R v Pantoja (1996) 88 A Crim R 554;

Adams (No 2) [1998] EWCA Crim 2364; [1988] 1 Cr App R 377;

R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317;

R v Galli [2001] NSWCCA 504;

R v Latchka [1998] NTCCA 120; (1998-1999) 104 A Crim R 390;

Dohney and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369;

Adams [1996] 2 Cr App R 467;

Whitehorn v The Queen [1983] HCA 42; (1982-83) 152 CLR 657;

Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521;

Perry v The Queen (1982) 150 CLR 580;

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336;

R v Keir [2002] NSWCCA 30;

R v Lisoff [1999] NSWCCA 364;

KRM v The Queen [2001] 8 HCA 11; 75 ALJR 550, considered.

Counsel: MR WELLS QC WITH MR P CUTHBERTSON - Solicitors: NORTH EAST LAWYERS

Counsel: MS W ABRAHAM QC WITH MS L CHAPMAN - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2002] SASC 294

(Court of Criminal Appeal: Doyle CJ, Prior and Gray JJ)

Court of Criminal Appeal: Doyle CJ, Prior and Gray JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Gray J.

I wish to add some remarks in relation to the submission by Mr Wells QC, counsel for the appellant, that the Judge erred in failing to warn the jury against the danger of misusing the statistical evidence in this case. The statistical evidence to which I refer is the evidence interpreting or explaining the significance of the matches found in the DNA profile obtained from the material found on the deceased's blouse, and the DNA profile of the appellant. That statistical evidence was expressed in the form of a likelihood ratio and in the form of a match probability.

I add these remarks because of the practical importance of the issues raised by the submission. The issues are likely to occur in other trials.

I do not propose to summarise the relevant facts, the issues at trial, or the manner in which the prosecution case and the defence case were put at trial. All of these are adequately dealt with by Gray J.

Mr Wells submitted that a warning against the misuse of the statistical evidence should have been given for a number of reasons. As I recall his argument, the terms of the required warning were not spelt out by him. I take it that the type of warning which he submits should have been given flows from the circumstances said to give rise to the need for the warning.

Mr Wells submitted that a warning was required as a matter of law when the prosecution relies on a statistical calculation, expressed as a mathematical probability, to interpret or to explain the significance of evidence about a match between DNA material linked to the commission of a crime (I will call this the incriminating DNA) and DNA material obtained from an accused. He submitted in the alternative that in most such cases, and in this case in particular, such a warning will be required as a matter of practice to discharge the judge's duty to give the jury such directions as are required to ensure that there is a fair trial and to avoid a miscarriage of justice.

The fundamental reason for requiring the warning is said to be that without it the jury will give undue weight to the evidence of a match between the incriminating DNA and the accused's DNA. They are likely to do so because of the impact on them of the interpretative statistical evidence. Implicit in the submission is the acknowledgement that the danger arises when the likelihood ratio or match probability (see Gray J at [66] - [67] are calculated and expressed as a ratio that is sufficiently high or low to suggest to the ordinary person something like certainty, or something sufficiently high or low to be what one might call distractingly impressive. It is not necessary in this case to explore when the ratio acquires that quality. It suffices to say that a ratio of 1 in 90 billion, the ratio of which evidence was given in this case, has the qualities to which I just referred.

Mr Wells submitted that the jury may give undue weight to such evidence because they will be unfamiliar with the science of statistics and with the proper use of mathematically expressed probabilities. For present purposes I agree that it is reasonable to assume that the statistical concept of a probability differs from the everyday concept of probability, and that at times everyday assumptions about improbability will differ from statistical probabilities: see, for example, Perry v The Queen (1982) 150 CLR 580 at 594 Murphy J.

Mr Wells further submitted that the jury were likely to regard the evidence about the DNA match, and the statistical evidence, as establishing something equivalent to a kind of "genetic fingerprint", when in fact it does not do so.

In short, he submitted, the jury were likely to be overwhelmed by the evidence through a combination of unfamiliarity with the statistical terminology and the meaning of statistical probabilities, and the impact of a very high or very low ratio.

The end result, or an alternative danger, is that the jury would substitute reliance on a mathematical expression of probability for an actual persuasion or felt persuasion of a matter that had to be proved beyond reasonable doubt as a step in their reasoning towards guilt, or even worse as a substitute for proof of guilt itself beyond reasonable doubt. If this occurred there would be a double error. First, the jury would have relied on the statistical evidence explaining the DNA match to the exclusion of other evidence in the trial. Secondly, the jury would have substituted a mathematical expression of probability for actual persuasion of a matter beyond reasonable doubt.

A further or alternative reason for requiring a warning was that if it is not given there is a real danger of the jury committing the so-called "prosecutor's fallacy": see Gray J at [183] - [185] Doheny and Adams [1997] 1 Crim App R 369 at 372-373 and R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 at 328-329 Mason P. 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.

The evidence is summarised by Gray J at [66] - [68].

Mr Pearman's evidence about the likelihood ratio was as follows:

"The likelihood ratio is becoming a more commonly used form of presenting not only DNA evidence but other forms of forensic evidence. It is based on the fact that, in a Court situation, generally, the Court is faced with two competing scenarios, or points of view; the prosecution point of view that the accused has left the crime stain, and the defence point of view, or hypothesis, which is that some other unrelated person has left the stain. The calculation we do doesn't estimate the probability that the person left the stain, but what we can do is estimate the probability that the crime stain and the reference sample match, if the accused left it, or if someone else left it. You can then weigh up those two competing probabilities in what is called the likelihood ratio...for this stain, we would say that the crime stain is greater than 90 billion times more likely to match the profile of the accused if he left it, rather than if an unknown, unrelated person left it."

Dr Buckleton 's evidence about the matter was as follows:

"[The figure, reported as a 'frequency', being] the chance that another person [as well as the appellant] would possess this profile is approximately one in 90 billion...[reported as a likelihood ratio] it is just the other way up. So the evidence is about 90 billion times more likely if Mr. Karger donated a sample than if a random person donated the sample."

Clearly enough, that evidence must be used with care. For the purposes of expressing the likelihood ratio, two factual hypotheses are compared. One is the prosecution hypothesis that the appellant was the source of the bloodstain and of the incriminating DNA. The other hypothesis is the defence hypothesis that an unrelated person is the source of the bloodstain and of the incriminating DNA. The statistical evidence calculates the probability of the occurrence, in either case, of the match found between the incriminating DNA and that of the appellant, and expresses the competing probabilities as a ratio.

The statistical evidence interpreting the significance of the DNA match is not evidence of the probability that the appellant was the source of the incriminating DNA. To so regard it would be to make an error. However, the statistical evidence interpreting the DNA match is expert evidence that the jury could use in deciding whether it was satisfied beyond reasonable doubt that the appellant was the source of the incriminating DNA. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA, but is not direct evidence of that fact. And, as is obvious, the statistical evidence must be considered in the light of other evidence in the case.

It is necessary for the jury to appreciate these points if they are to make proper use of the statistical evidence.

It is also necessary to avoid the so-called prosecutor's fallacy, if the evidence is to be properly used. Reasoning in the form of that fallacy involves, as I understand it, both the error just identified and an approach which would treat the statistical evidence as proof of guilt, rather than as evidence from which a conclusion on a matter which might in turn point to guilt could be reached.

The evidence given by Mr Pearman and Dr Buckleton was expert evidence, placed before the jury to enable them to assess the significance of the match between the incriminating DNA and the appellant's DNA.

That evidence was to be treated like any other expert evidence in a criminal trial. It was for the jury to consider the evidence and to decide what significance and weight should be attached to the evidence. The jury were not obliged to act on the evidence. Nor should the jury allow any expert opinion put before them to be used as a substitute for their own satisfaction, to the appropriate degree of proof, of a matter required to be proved as part of the prosecution case. As Mr Wells submitted, proof of a matter, and in particular proof that the incriminating DNA came from the appellant, depended on the jury being actually persuaded of that fact. Proof could not be found in "a mere mechanical comparison of probability independently of any belief in its reality": Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 Dixon J.

The proper approach to the issue of whether the incriminating DNA came from the appellant, and to the issue of guilt of the crime charged, was to treat the statistical evidence as evidence to be considered and weighed along with the other circumstantial evidence, not allowing it to displace or to overwhelm the consideration of all material evidence, but at the same time giving it such weight as the jury thought proper.

Gray J has set out several passages from the Judge's directions. As well, I have considered the summing up as a whole. It is a lengthy summing up, but in the circumstances that was unavoidable. In my respectful opinion it was thorough. The Judge marshalled and summarised the expert evidence in particular, in a manner that one cannot fault. This included his summary of the evidence relating to DNA and to the statistical evidence.

The Judge gave the jury an adequate general direction about the use of circumstantial evidence, and about the use of expert evidence.

The Judge referred on a number of occasions to the statistical evidence, and to its use. I will set out some of the more significant parts of the summing up. They are as follows:

"1010 The next matter for you to consider is what is the proper use of this statistical evidence and calculation? It bears on the question of how common is the DNA profile of the accused? All of this DNA evidence might be interesting, but of little practical use to you in reaching your conclusion if, say, every other person in the community had the same profile. As you heard, the purpose of this evidence is to enable you to give some weight to the DNA evidence of a match between the DNA of the accused and that on the stains on the blouse."

"1024 Mr Pearman told you that in the context of this trial this means that the crime scene stain, KO22.C, is greater than 90 billion times more likely to match the profile of the accused if he left it than if an unknown and unrelated person left it. Dr Buckleton put it this way. He said that it is about 90 billion times more likely if the accused donated the sample KO22.C than if a random person donated the sample. Dr Atchison put it another way. He said that it is the probability of getting that result, given that the stain or DNA did not come from the accused.

1025 Well, however it is expressed, you will get the full import from that evidence as to the significance of this calculation. It is to enable you to understand the weight that you can give to this match, and you might conclude that if you accept the evidence of Dr Buckleton and Mr Pearman and accept that this is the way that it is now done in most places in the world, it shows that this match is an extremely powerful piece of evidence in this case."

"1028 Ladies and gentlemen, it is for you to say what you make of all this evidence and whether you find that the evidence of Dr Buckleton and Mr Pearman assists you to give appropriate weight to the evidence of the match of the DNA of the accused with the DNA in the samples in the stains taken from the blouse, assuming, of course, that you reach that conclusion beyond reasonable doubt that the DNA testing has been accurate and reliable."

"1090 I would not like you to have any misunderstanding at all about my directions in law as to the approach you should take to the conflicting scientific evidence. I thought I had made this plain on a number of occasions, but in case I had not, I shall say it again. If you are to rely on an opinion, or the evidence given by a Crown expert, meaning an expert called by the Crown; Ms Tridico, Mr Pearman, Dr Buckleton, then you have to accept that opinion, and in the case of the DNA evidence itself, you have to accept the opinions of Mr Pearman beyond reasonable doubt. If you do not, then you put those opinions aside.

1091 When you come to consider the evidence of the defence experts, you do not have to accept those opinions. What you have to do is to decide whether you accept them as a reasonable possibility, because if you do, then you may rely on them for that purpose, and you would not be able to find the contrary opinions of the Crown experts proved."

"1106 I now just want to briefly summarise a couple of matters to you. What conclusions about the DNA evidence are you able to reach beyond reasonable doubt? This evidence is very important and you must not rely on any matter unless you have found it proved beyond reasonable doubt. Are you satisfied beyond reasonable doubt that the DNA profile of the accused is the same as the DNA profile found in KO22.B and KO22.C?

1107 Having regard to the evidence of match probability, are you satisfied beyond reasonable doubt that it is about 90 billion times more likely if the accused donated those two samples than if some other random person donated them? If you do reach that conclusion, then it is a most important piece of circumstantial evidence to be considered along with all of the other circumstantial evidence in the case."

"1112 You might think, if you accept it, that the calculation of 1 in 90 odd billion gives you a realistic way of assessing the weight of the evidence of the match. It is fair to say that you may have regard to this evidence as a very powerful piece of evidence if you accept the opinions."

The Judge told the jury quite clearly that the evidence about the DNA material obtained from the back of the deceased's blouse was an important part of the case, as it clearly was. If the jury were satisfied beyond reasonable doubt that the incriminating DNA came from a bloodstain left by the appellant on the deceased's blouse, that conclusion was, in the circumstances, powerful evidence of guilt. In saying this I do not overlook the fact, as appears from the reasons of Gray J, that there was other evidence that the jury had to consider, and which the jury were likely to have treated as pointing towards guilt.

The understanding of, and proper assessment of, complex expert evidence can be difficult for a judge and for a jury. I accept that the statistical evidence was complex, and that it involved a form of analysis and discourse with which few in court, apart from the expert, would be familiar. It was admissible evidence nonetheless. As the Judge found, the statistical concepts used are a well established scientific method of explaining the significance of the match between the incriminating DNA and the appellant's DNA.

I accept also that the statistical evidence about probabilities used the concept of probability in the form of a prediction about a future hypothetical event, and that it speaks about a class of events or persons, and not any one event or person in the class. As Giles JA said in R v Keir [2002] NSWCCA 30 at [23]:

"...[T]he statistical probability within the relevant population does not translate to the same statistical probability for a given member of the population."

Those propositions reflect my own understanding of the position, based on the submissions put to us. I accept also the cautionary remarks made by King CJ in The Queen v Duke (1979) 22 SASR 46 at 48 when he said:

"There may be unusual cases in which the judge has reason to fear that the jury will be overawed by the scientific garb in which the evidence is presented and will attach greater weight to it than it is capable of bearing. It is to be remembered, however, that under our system, whatever criticisms of it there might be, the assessment of the weight to be attached to expert evidence, as to other evidence, is the function of the jury. That being the system, a trial judge must assume, in my view, that the jury is capable of understanding that it is not bound to accept the expert evidence, that it is capable of resolving conflicts of opinion amongst the expert witnesses, and that it will not be overawed by the scientific garb in which the evidence is presented to it."

As King CJ said, it is the function of the jury to determine issues of facts. In my view courts can be confident that, given proper guidance, juries can evaluate properly evidence such as was given in this case: R v Lisoff [1999] NSWCCA 364 at [49]; R v GK at 324-325 Mason P.

It is stating the obvious to say that the guidance that a jury requires, to ensure that a trial is fair and that there is no risk of a miscarriage of justice, will depend on the nature of the evidence, its significance, the manner in which the evidence is presented, and on the manner in which the trial is conducted.

As to the approach to be taken to expert statistical evidence interpreting evidence about a DNA match in particular, I gratefully refer to and adopt the general observations made by Mason P in GK. His Honour's reasons contain a valuable summary of the matters that call for consideration by a trial judge and by a court of appeal.

I do not accept that there is a requirement, as a matter of law, for a warning to the jury about the danger of the misuse of statistical evidence about the significance of a DNA match, when that statistical evidence is expressed in terms of a likelihood ratio or as a match probability.

To begin with, as I think Mr Wells conceded, such a rule could exist only in relation to a case in which the ratio or probability was expressed as a ratio so high or so low that the number itself seems impressively persuasive.

But even then I do not consider that such evidence brings with it such dangers of misuse or misapplication by a jury as to require a warning in every case. I do not accept that a jury is necessarily likely to give such evidence undue weight, or that a jury will necessarily surrender their evaluative and decision making functions to the influence of an impressively high or low number or ratio.

There are other kinds of expert evidence that juries must consider which are equally complex. There are other cases in which expert opinions are likely to sound every bit as impressive as the ratio put before the jury in this case. But, so far as I am aware, Australian courts have not identified other categories of expert evidence as requiring, as a matter of law, a warning to the jury about the misuse of the evidence. Nor have other Australian courts held that the law requires a warning to a jury against the misuse of statistical evidence about the significance of a DNA match in every case in which such evidence is given: see, for example, R v GK at 324-325 Mason P; R v Lisoff [1999] NSWCCA 364 at [49].

I am of the same view in relation to the suggested tendency for a jury to "transpose the conditional", that is, to treat the ratio as an expression of the probability that the appellant was the donor of the incriminating DNA. As long as the evidence is given clearly, as seems to have been the case here, and is accurately explained by the Judge to the jury, as occurred here, that should suffice. Nor do I see any reason to require a warning against the so-called "prosecutor's fallacy" as a matter of law, even when the evidence has not been expressed in that fallacious form or put to the jury in that fallacious form; see R v Galli [2001] NSWCCA 504 at [89]- [90].

A perusal of the Judge's summing up, and in particular the passages set out by Gray J and in my reasons, indicates that evidence of the type now under consideration can be summarised for the jury in a manner that avoids these dangers, or at least minimises them, without resort to warnings.

And, as has been observed by judges on a number of occasions, it is undesirable to impose on trial judges the obligation, as a matter of law, to give warnings to a jury except when that is truly necessary. Any idea that there is no harm in giving a warning, and therefore that it is appropriate to make the warning obligatory, should be rejected. Each warning adds to the length of a summing up, and to the matters that a jury must consider. And there is a danger that the giving of too many warnings will undermine the impact of those warnings that are truly required, or will distract the jury from a straightforward consideration of the material before them: cf KRM v The Queen [2001] 8 HCA 11; 75 ALJR 550 at [37] McHugh J, at [108] - [110] Kirby J.

As long as the judge explains to the jury how the evidence may be used, and how it should not be used, there is no need for warnings against its misuse generally, or for a warning against misuses of the evidence that have not taken place in the trial.

I turn to the question of whether, in the circumstances of this case, a warning was called for. As I have said, the ratio given in evidence was impressive and striking. But the Judge's directions, in my opinion, carefully confined the statistical evidence to its proper place. In light of the directions given, I find no reason to think that there was a risk that the jury, having heard the ratio expressed, would have been seduced by that evidence into a conclusion that this was as good as proof of guilt beyond reasonable doubt. The Judge told the jury several times that the statistical evidence was but one part of the evidence to be considered. There was no suggestion by counsel that their task could be reduced to or replaced by a mathematical computation. Nor do I consider that the jury were likely to have focused unduly on the DNA evidence, to the exclusion of the other evidence that called for consideration. The Judge went to great pains to guide the jury through the whole of the evidence, and to remind them of the need to consider the evidence as a whole. I set out two paragraphs only from the summing up where the Judge touched on these matters:

"484 Ladies and gentlemen, I want to turn to the DNA evidence, as I call it, which is the last piece of circumstantial evidence which the Crown says requires the inference that the accused committed the murder. And in that expression I include the statistical evidence which enables you, if you accept it, to place sensible weight upon the DNA evidence.

485 Ladies and gentlemen, a considerable part of this trial has been devoted to the DNA evidence but it is only one piece of circumstantial evidence in the Crown case. Although an important piece of evidence, it would be a mistake to think that it is the only important evidence. It must be considered along with all of the other evidence in the case, and the conclusion which you reach as to other circumstances may assist you to reach the correct conclusions about the DNA evidence and the statistical evidence."

The fact is that the DNA evidence was significant evidence, and was open to be treated by the jury as pointing strongly towards guilt. To give a warning of the kind suggested by Mr Wells carried with it other risks. One risk was that of further emphasising the probative force of the evidence. Another risk was that of wrongly detracting from its potential significance. My view is that the Judge dealt with the evidence appropriately. By giving the jury a careful summary of it, and by putting it in its appropriate context, the Judge adequately guarded against the dangers which Mr Wells submitted called for a warning. Warnings are not the only solution to the problem to which he averted. A careful and appropriate treatment of the evidence was equally good. That is not to say that the Judge would have been wrong, if he saw fit, to give some kind of warning. It is only to say that one cannot say that a warning had to be given.

It was not submitted that in this case the witnesses or counsel had misstated the effect of this statistical evidence by treating the relevant ratio as expressing the probability that the incriminating DNA was that of the appellant, or as expressing the prosecutor's fallacy. There was therefore nothing in particular that called for a warning or correction on either of these points. Obviously enough, if such an error was made in the course of the trial, a correction would be appropriate, but whether it would have to be expressed as a warning is another matter. In the present case there was nothing for the Judge to correct. I do not consider that there was such an inherent risk of the jury nevertheless lapsing into this form of reasoning that it was necessary for the Judge to warn them in terms against it. It was sufficient to give them clear guidance on how the evidence could be used. It was not necessary to warn them against this particular possible misuse of the evidence.

For all those reasons I do not accept the submission that the Judge erred in failing to warn the jury against the misuse of the statistical evidence.

For those reasons, and the reasons given by Gray J, I would dismiss the appeal.

PRIOR J I agree with the reasons given by Gray J and with the remarks added by the Chief Justice.

GRAY J Damon John Karger the appellant was charged with the murder of Kerryn Jean Ostendorf. He was convicted on the verdict of a jury. This is an appeal against the conviction.

Mrs Ostendorf ("the deceased"), aged 41 years, died at her home in Campbelltown in the early hours of Saturday 17 January 1998. She had been out the previous night and drove the last of her friends home at approximately 3.45 am. Given the proximity of her home to that address she arrived home shortly after 4.00 am. The Crown case was that the deceased was murdered during the course of a sexual attack soon after she returned home.

The deceased's body was found by her daughter Rachel Rowlands soon after 7.30 pm on Saturday 17 January 1998. She was lying face down on her bed. She had been strangled with a camisole. Most of the clothing she had worn on the Friday night lay on the floor near the bed. Her knickers, skirt, bra and blouse were cut and torn. The deceased had bruising to her arms and legs, bruising to her eyes and mouth and grazes on her knees.

Dr Ross James the examining pathologist gave evidence about the injuries sustained and the cause of death. On examination he observed that the deceased's anus was markedly dilated or enlarged. This was inconsistent with normal post mortem appearance but could not be described as an injury. Dr James' opinion was that penetration by an object could not be excluded as the cause. If penetration had occurred he could not say whether it was before or after death.

The deceased was security conscious. There were no signs of forced entry to her home. There were no signs of disturbance other than in her bedroom. There were no signs of theft other than it appeared that her purse had been emptied. It was the Crown case that the deceased knew her attacker.

The appellant, aged 28 years had known the deceased for some years through her daughter, Mrs Rowlands. In more recent times, the appellant had visited the deceased when he returned to Adelaide on army leave. In January 1998 the appellant was staying with his parents at Paradise. This was a three minute drive or a ten minute walk from the deceased's home.

On the night of Friday16 January 1998 and in the early hours of Saturday 17 January 1998 the appellant made nine unanswered telephone calls to the deceased. These calls were at 11.05 pm, 11.57 pm, 12.02 am, 12.12 am, 12.21 am, 12.32 am, 3.47 am, 3.50 am and 3.52 am. The appellant did not attempt to telephone the deceased after 3.52 am. She died shortly after that time. Her body was not found until soon after 7.30pm on Saturday 17 January 1998 and the media did not disclose the fact of her death until the Sunday afternoon.

The deceased had spoken about the appellant to her daughter and her friends in the week or so prior to her death. It was the Crown case that given what was said by the deceased on these occasions and the manner in which it was said, it was open to the jury to infer that she was upset with the appellant and that whilst he was a friend who would come into her home, she did not wish to have a sexual relationship with him.

The police interviewed the appellant on 21 January 1998 at his parents' home and then later at the police station. He denied any involvement in the murder. Taped records and transcripts of the interviews were tendered as part of the Crown case. In the police interview the appellant admitted that on one occasion he had made sexual overtures to the deceased. This occurred in the week prior to her death. These overtures were rejected. The appellant was also asked questions about his mobile telephone. He told the police that the deceased's number was programmed into his telephone.

Following the interview at the police station, the police returned to the appellant's residence to conduct a search. Whilst in the appellant's bedroom detective Crameri asked for his mobile telephone. The detective searched the mobile telephone for numbers. He then had a conversation with the appellant about the deceased's number. The appellant indicated that he had removed her number from the memory of his telephone after he heard about the murder. He also said that he had been placing the numbers in alphabetical order. Notes were made of that conversation but it was not recorded on audio or video tape.

As earlier observed, the deceased's clothes had been cut and torn. Inside the back of her blouse on either side of a pleat near where it had been cut or torn were two small blood-like stains. These stains KO22.B and KO22.C were tested using DNA technology.

KO22.B was tested in 1998. Its DNA profile matched the DNA profile of the appellant. KO22.C was tested in 1999. Its profile also matched the DNA profile of the appellant.

Fingernail scrapings from the deceased were also subjected to DNA testing. A minor DNA typing was located under the fingernails of her right hand. The appellant could not be excluded as the source of that typing. The chance of another unknown person unrelated to the accused having the same DNA profile was in the order of 1 in 13.

Two hairs were located on the back of the deceased's body. A comparison of these hairs with the appellant's chest hairs could not exclude him as the source.

It was the Crown case that DNA is found in all living cells. DNA profiles have been described as "genetic blueprints". They differ between people. DNA is found in the cells of the human body. Half of a person's DNA is inherited from the father and half from the mother. Biological material can be extracted from blood, saliva and tissue and analysed to determine a DNA profile. DNA technology targets certain locations on a DNA strand. Each location is called a locus and is identified by a series of letters and numbers. At each locus, a person has two alleles. One allele comes from the mother and the other from the father. DNA technology measures the length of each allele. A DNA profile is essentially a string of numbers, two numbers for each locus targeted.

Various methods have been used at the South Australian Forensic Science Centre ("the Centre") to obtain DNA profiles. One of the earliest systems used was the D1S80 system. D1S80 targeted and therefore potentially obtained results for only one locus. The results could be seen using silver staining technology. The Centre began using the Quadruplex system in 1994. Quadruplex targeted and therefore potentially obtained results for four loci. The results were displayed using fluorescent technology. In 1998 the Centre began validating a new system, Profiler Plus. It began using this system for casework during February 1999. Profiler Plus targeted and potentially obtained results for 10 loci. All three systems were used by the Centre to obtain DNA profiles in this case.

The stain KO22.B was circular and 1mm in diameter. KO22.C was a more elongated smear and 3mm x 1mm in size.

On the Crown case there was a very strong inference that the stains on the blouse were blood. The stains had the appearance of blood and gave "a good sound positive reaction to the Sangur test". This test was used as an indicator of the presence of blood. Defence counsel did not cross examine the Crown DNA expert witnesses to suggest that the stains were other than blood. The cross examination did no more than suggest that a species test would have revealed whether the stains were human blood rather than the blood of higher primates.

In 1998 KO22.B was tested on both the D1S80 and Quadruplex systems. The DNA typing obtained was the same as that obtained from the appellant's reference sample. Consequently the appellant could not be excluded as a source of that stain. KO22.B was tested using Profiler Plus but no result was obtained.

In 1999 KO22.C was tested using both the Quadruplex and Profiler Plus systems. The DNA typing obtained was the same as that obtained from the appellant's reference sample. Consequently the appellant could not be excluded as the source of that stain.

The profile obtained for KO22.B from the Quadruplex system in 1998 matched the profile obtained for KO22.C from that system in 1999. The result obtained for KO22.C using the Profiler Plus system was the same as the result obtained for KO22.C and KO22.B using the Quadruplex system.

Christopher John Pearman a DNA expert witness called by the Crown gave evidence that after the 1998 testing and before the 1999 testing he advised the defence that a portion of the two samples was available for testing. He later advised the defence through the Director of Public Prosecutions that the Centre was going to test KO22.C. On 14 July 1999 the defence was advised that further tests would be conducted on K022.C. A defence expert was invited to observe the testing on both occasions. The defence did not take up either offer.

Combining the results of the Quadruplex and Profiler Plus systems for KO22.C led to a DNA profile being obtained for 10 loci. That profile matched the appellant's DNA profile at those 10 loci. To interpret that match a calculation was made using a recognised statistical equation known as the 4.10 equation.

Once this calculation was made, there were two ways to present the result, as a "match probability" and a "likelihood ratio". The figure of 90 billion was presented to the court in both ways. The match probability was the chance of a second person having the same profile as that of the stain. This was one in 90 billion.

The likelihood ratio is a ratio of two probabilities. The first is the probability of the appellant's DNA profile matching that of the crime stain if he left the crime stain. This was the number one as it was assumed for the purpose of the ratio. The second was the probability of the appellant's DNA profile matching the crime stain if the appellant did not leave the crime stain, but rather an unknown unrelated person left it. This is the match probability. In this case, that was 1 in 90 billion. The likelihood ratio allowed the conclusion that the stain was greater than 90 billion times more likely to match the profile of the appellant if he left it rather than if an unknown person unrelated to the accused left it.

The judge summarised the Crown case as follows:

"... I summarise the Crown's approach to the DNA evidence. It is of considerable significance. It is circumstantial evidence, if you accept it, from which, along with the other evidence in the case, you may draw the inference that the accused murdered Mrs Ostendorf. The two stains on the back of her blouse and the accused's blood reference sample were analysed in different systems. If you accept the evidence that they are the same stain separated because of the crease in the blouse, then the stain and the accused's blood reference sample were tested on three different systems and at different times. The consequence is that the accused cannot be excluded as the donor of that stain, if you accept this evidence, and I have reminded you of the evidence as to the statistical significance of that matter. I have reminded you of the statistical significance of the combination of Mrs Ostendorf's DNA and the minor profile in the right fingernail clippings.

So, it is the Crown case that the testing at the Forensic Science Centre is reliable and accurate, the systems of Quadruplex, Profiler Plus and D1S80 are widely used throughout the world and are accepted as reliable and accurate. Fluorescence technology using Quadruplex and Profiler Plus is very sensitive and discriminating and permits the reliable analysis of very low quantities of DNA. With suitably trained and competent scientists, correct interpretation will produce accurate results. These systems have been tested and validated in the hands of the Forensic Science Centre and, on the Crown case, you should have confidence in the results which have been produced.

On the Crown case, the contentions to the contrary are simply untenable. The errors and contamination are to be expected from time to time, although regrettable, and far too much has been made out of them in this case. They have no bearing on the tests in this case. They do not show sporadic contamination. Far from it. The evidence establishes that all controls, protocols and procedures have worked and appropriate action taken. There could not have been contamination of any of the samples. No basis for contamination of KO22.B or KO22.C by DJK1 has or could be shown as a reasonable possibility and must simply be rejected.

The reason for the presence of the 31 band in the D1S80 test is as explained by Mr Pearman, or possibly by Mr Taylor. It does not indicate a Genotype different from the accused and, therefore, cannot exclude him. You should consider the DNA evidence in the context of all of the other evidence in the case. On the Crown case, all of the other facts and circumstances, when considered together, lend strong support to a conclusion that the accused donated the stain on the blouse and, therefore, assists in the conclusion that there has been an accurate and reliable testing and no contamination. Having accepted this evidence, you can give the weight to the match in accordance with the calculations and opinions of Dr Buckleton and Mr Pearman. So, the Crown says that you should accept the Crown case on DNA analysis and the weight to be given it as having been proved beyond reasonable doubt.

The Crown case is that, upon considering all of the facts and circumstances, only one inference is open; the accused murdered Mrs Ostendorf. He was interested in her sexually but she was not interested in him in that way, if at all. He became obsessed with her, perhaps, as is indicated by telephone calls. He went to her home in the early hours of the morning, perhaps around 4 a.m. or just before, she let him in, and he killed her. On the Crown case there is compelling evidence to establish that he is the murderer when all of the evidence is considered together. He had the opportunity and the sexual interest in her. You should conclude that he left two chest hairs on her or on her bed and blood on her blouse from all of the evidence, including the DNA evidence.

The statistical evidence enables you to give due weight to the DNA evidence and you should accept the evidence of Mr Pearman and Dr Buckleton. Upon doing so, there is no reasonable possibility that anybody else could have left the stain.

The accused did not telephone Mrs Ostendorf on the Saturday or Sunday, on the Crown case, because he knew she was dead. He removed her number from his telephone memory to distance himself from her. He was not forthcoming and truthful when he was questioned by the police. It is likely that he sustained a bruise to his chest during his attack on Mrs Ostendorf, on the Crown case. The lack of evidence of other injuries to his body, or hands, or deposits on his clothes is understandable, on the Crown case, in the circumstances, and is explained on evidence. The incident at The Glynde Hotel has no significance.

So, ladies and gentlemen, the Crown says that when you consider the combined force of all of these circumstances, there is only one inference that can be drawn; the accused murdered Mrs Ostendorf and you should find him guilty as charged."

The defence case was that the appellant did not commit the murder.

The defence called two expert witnesses whose evidence addressed the DNA issues. They challenged the evidence of the Crown DNA experts. It was said that the real possibility of laboratory error could not be excluded. It was also said that the likelihood ratio was of no relevance and had no application in this case. Other evidence included evidence from Rosa Baldino. She said she witnessed an incident on the Wednesday prior to the murder when the deceased was threatened by an adult male, a person other than the appellant. The appellant did not give evidence at trial.

When addressing the DNA evidence the judge discussed the respective cases as they related to each relevant issue. Other aspects of the defence case were also addressed in detail.

The judge summarised the defence case as follows:

"The defence case is that you cannot place reliance upon the DNA evidence. You cannot reach the conclusion that the accuracy and reliability of the DNA tests and results have been proved beyond reasonable doubt, it has not been established that the Forensic Science Centre was operating at appropriate reporting levels of RFU, the levels of 100 and 75 are not borne out by the validation studies and, therefore, that is the end of the matter.

The errors and contamination in the Forensic Science Centre in the testing in this case, the errors in the testing of the Profiler Plus database and the failure to use appropriate reagent blanks at times do not permit you to accept the accuracy and reliability of the testing. The possibility of inaccuracy or contamination is reasonable and cannot be excluded. The presence of the 31 allele in the D1S80 testing raises, as a reasonable possibility, that the typing is not that of the DNA of the accused, with the consequence that it is a reasonable possibility that the accused is excluded as the donor of the stains on the blouse. Consequently, you should not go any further. You should reject the DNA evidence.

If you were to go further, the evidence of Mr Pearman and Dr Buckleton as to the use of the two databases and the equation 4.10 on the defence case should not be accepted. It is necessary that the Profiler Plus database have independence, according to Dr Atchison, between alleles at each locus and between the loci, and that has not been proved. You should accept the evidence of Dr Atchison. The consequences that the statistical result produced by equation 4.10 is meaningless.

The other evidence in the case does not assist you in reaching conclusions about the accuracy and reliability of the DNA tests in this case. On the defence case, you cannot draw an inference of guilt from the other evidence and it cannot assist you to reach any conclusion about the DNA evidence. Ladies and gentlemen, you will reach your conclusions about that important part of the case.

The defence case is that no such inference is open on the evidence. It is a reasonable possibility that the accused did have a friendship with Mrs Ostendorf of the nature he described to the police and that she allowed persons, including men, into her home in the early hours of the morning. It is reasonably possible that she let her attacker in and was then murdered. He could have gained entry with her as she got home. The attacker could well have had an acquaintance with Mrs Ostendorf, but not necessarily so, and in any event, her lifestyle was such that she had many acquaintances. The hairs cannot be shown to have come from the accused, even if you accept the evidence that he cannot be excluded as the donor. The DNA tests have not been shown to be reliable, and the evidence should be rejected.

The light of suspicion having been cast upon the accused tends to give a sinister glow to each fact and circumstance which is not justified in the circumstances. It is the suspicion, on the defence case, which gives the sinister glow, not the circumstances themselves, as you find them to be. There is no reason to conclude that the accused did not stay at home on the night of the murder. Why would he go to Mrs Ostendorf's home when his telephone calls have been unanswered? There is no evidence of injury to his hands or body, except the bruise and, on the defence case, that occurred during lovemaking with his girlfriend, or at least that is a reasonable possibility.

There was nothing on his clothes to incriminate him. There was an incident at The Glynde Hotel, which is some evidence to suggest that someone else could have wanted to harm her. Each of the matters in the Crown case which the Crown says point to guilt, when considered individually, amount to nothing. They can all be explained by there being an unusual relationship between the accused and Mrs Ostendorf. When considered together, they amount to no more. If they amount to anything, it is mere suspicion, falling a long way short of proof beyond reasonable doubt.

On the defence case, the accused had a friendship with Mrs Ostendorf, which involved late night phone calls in bursts and his seeing her at times at her home. There was no sexual activity between them. Her lifestyle was such that she could have come into contact and made an acquaintance of any number of persons in the even short-term and, so, given the features of her lifestyle which had been established, it cannot be said that the evidence in allowing the attacker into her home, if that is the inference you draw, necessarily points to the accused. The accused, when approached by the police, answered their questions. When asked to donate samples and when not obliged to do so, he co-operated.

It is the defence case that when considering all of the facts and circumstances, it is simply not possible to draw the inference beyond reasonable doubt that the accused killed Mrs Ostendorf. It is not possible to exclude, as a reasonable possibility, that he did not kill her."

The grounds argued may be conveniently grouped under three headings albeit with some overlap. Complaints were made about the admission of evidence. It was also said that the judge's summing up contained misdirections, inadequate directions, lacked balance and was unfair. Finally it was said that the jury's verdict was unsafe and unsatisfactory.

The appellant complained about the admission of evidence of conversations the deceased had with a number of witnesses. It was said that each included inadmissible hearsay. In the alternative, it was said that if admissible the evidence should have been excluded as a matter of discretion. Its prejudicial effect was said to outweigh its probative force. It was contended that the judge failed to explain to the jury how the evidence of the conversations could be used in assessing the weight to be given to what the accused had told the police about his relationship with the deceased.

The deceased telephoned Mrs Rowlands about one week prior to her death. The deceased spoke about the appellant. Mrs Rowlands' evidence included:

A. She said that he had been a bit of a sleaze.

Q. When you asked her that, did she reply in what way.

A. Yes. She said that he wanted to go to bed with her.

Q. Did she say what, if anything, she had said, or done, when the accused had said that.

A. She said she was really tired, and just wanted to go to bed by herself.

A. No. I told her that she should have told him to go away, and come back at a decent hour.

Q. How did you mother sound when she was talking to you about this.

The deceased told Ms Rowlands that the accused had telephoned her at home at about 4.00am.

Lydia Hietanen had been a friend of the deceased for approximately 14 years. She lived nearby and they met regularly. Mrs Hietanen was at the deceased's home on the Monday before her death. The deceased raised the topic of the appellant with her:

"Q. Can you tell us when she raised the topic, what she said.

A. She told me initially that Damon's feelings towards her had changed.

A. She said that Damon had rung her very early one morning when she just got home and she just got into bed, and when she answered the phone, she told him that she was in bed, and he said to her 'Well, don't worry, I'll join you'.

Q. Did she say what, if anything, she had replied to him.

Q. What was her demeanour like when she was talking to you about this.

Q. You told us that the conversation occurred in her house.

A. Actually I was sitting at her kitchen table, and Kerry was walking, like pacing next to me, next to the table.

Q. For about how long did the conversation last.

Antonietta Christina DeCorso had been a neighbour of the deceased for six years. They visited each other's homes and maintained frequent contact. Mrs DeCorso recalled a conversation that she had with the deceased about two weeks prior to her death:

A. That she was sick and tired of him ring - Damon ringing up - ringing her up and coming around all the time.

Q. Did she tell you if she had said anything back to him about that.

A. She told him not to come around any more, or ring up.

Q. Did she mention a specific occasion that she said he had come around.

A. She told me that he rang about 5, 5.30 in the morning, that he wanted to come around, but she told him not to because she was tired and wanted to go to bed.

A. Yes, she did. She said that - he said to her that he is already at the door.

Q. Whether she said something to him, he said something to her, or that they did anything.

A. Yes, she made him a coffee and then asked him to leave.

Q. When she told you about him ringing up and turning up, did she say whether she told him anything about that.

A. She told him not to, not to ring her up and come over again.

Q. When you were having this conversation about him ringing up, how did she appear.

Q. When she was talking about a specific occasion that he came around, again, how did she appear.

Q. Sure. When she spoke about the particular occasion that he came around - you remember you've told us about a particular occasion - how did she appear when she was talking about that.

Q. Is that something that you've observed, or something she said, or both.

A. She was stick and tired of him coming around and ringing up."

Dr Peter Kubler was a friend of the deceased. He had known her for about five years. At one time they had been in a relationship. He gave evidence of two conversations in early January 1998:

"A. No, Kerry raised the topic of [the appellant] visiting her.

A. She said 'You know, it's a funny thing that happened the other night or was it last night?', and she said that 'I just got home and I had a telephone call from Damon and within a few seconds, within about 10 seconds, he was suddenly at my front door, which surprised me', she said.

A. The next time she mentioned him was perhaps a few days after this one. It was in my living room again.

A. In my living room, yes. She said that Damon had - the same scenario was that she had just got home very late, you know, 3 o'clock in the morning, or something like this, and he rang her up and he had come around and called on her again. But she said to him that, you know, something like 'Damon, look I'm very tired. Go home, I want to go to bed'.

A. She told me that he replied to her 'That's all right. I wouldn't mind coming back to bed as well'. She said 'Don't be stupid, go home.

Q. Her demeanour. How did she appear during the first conversation.

A. I thought she behaved more nervous. She had this way of giggling when she was nervous and that sort of alerted it to me. When she said not to worry about it, I said 'You know the bloke, I don't.

Q. The second conversation, how did she appear during that conversation.

A. She seemed more concerned that time than about the previous incident.

Q. You took that from her demeanour or something she said.

A. Again, when you know someone, and they are nervous about something, you know it, or if they feel concerned about it from what they said, and I got the impression she seemed much more concerned and worried about the incident. Certainly much more concerned about the incident than what she talked about previously."

The judge gave extensive directions with respect to each conversation[1]. The directions covered the use that could and could not be made of the evidence if accepted. The judge directed the jury that the evidence could be used for the purpose of considering the deceased's state of mind and to assess the weight that could be given to what the appellant had told the police about his relationship with the deceased. The judge repeatedly informed the jury that the evidence could only be used for the limited purpose of establishing what the deceased had said and not whether what she had said was true.

In regard to the conversations the judge's directions included:

"The evidence of what Mrs Ostendorf told her daughter is placed before you for a limited purpose, namely, as evidence of her state of mind at the time of the conversation. It is not evidence of the truth of what she said. It is not evidence that the accused is bit of a sleaze. Indeed, that is not what Mrs Ostendorf said, if you accept Mrs Rowlands' evidence. She said that he had been a bit of a sleaze, and I expect you will very likely accept that that was her way of describing his conduct when he said he wanted to go to bed with her, if that is what happened.

So the statement must not be used as any reflection upon the accused or his character. This evidence of the conversation is not evidence that the accused did go to Mrs Ostendorf's house in the early hours of the morning, be it 4 a.m. or any other time, that he said that he wanted to go to bed with her, that she told him that she was really tired and wanted to go to bed by herself.

It would be quite wrong to use the evidence for any of those purposes, because if you did so, you would be acting upon second-hand or hearsay evidence which is not permissible. The evidence can only be used for the limited purpose of establishing what Mrs Ostendorf said, not that what she said was true."

"... you will remember my directions to you about this type of evidence. It cannot establish that the person Damon had changed his feelings towards her, that he telephoned her early in the morning after she had arrived home and got into bed, or that he said that he would join her. The evidence is put before you so that you may decide if you are prepared to draw the inference from the statements, if she made them, that Mrs Ostendorf was of the state of mind that she did not want sex with the accused."

"... you will remember the directions I have given you. That evidence cannot prove that those events occurred, and it is placed before you only for the limited purpose of establishing the state of mind of Mrs Ostendorf in relation to the accused, if you are able to draw the inference that, when mentioning a person called Damon who was in the army, she was referring to the accused."

"Again, that evidence is not placed before you for the purpose of establishing that those events related by Mrs Ostendorf actually occurred, but only that she had said those things to Dr Kubler.

So, ladies and gentlemen, so far as those conversations with Dr Kubler are concerned, you must decide whether they occurred and then whether they do, in fact, reflect the state of mind of Mrs Ostendorf and, if so, what, in fact, was that state of mind."

Counsel for the appellant stressed that in each conversation the deceased spoke of earlier conversations that she had had with the appellant. It was said that no conclusion could be drawn from those parts of the conversations unless an assumption was made about the truth of their contents. As the truth had not been established it was said that evidence of those parts of the conversation was inadmissible hearsay. If the evidence of those parts of the conversations was admissible for any purpose, direction was required as to its limited use. It was contended that the judge's directions fell short of providing an adequate direction.

Counsel for the appellant did not complain about the admissibility of the remainder of each of the conversations. That evidence was accepted as relevant, probative and admissible to establishing the deceased's state of mind towards the appellant. The only parts of the conversation under challenge were those parts where the deceased recounted conversations that she had had with the appellant.

Counsel for the Crown submitted that the conversations in their entirety were relevant and probative and were properly admitted. The evidence was circumstantial and enabled the jury to infer certain facts about the deceased's state of mind towards the appellant, their relationship and whether she would ever have had sexual intercourse with him. It was further submitted that the evidence was relevant as it explained how the appellant could have entered the deceased's home in the absence of forced entry. The evidence demonstrated that the deceased did not want to have sexual contact with the appellant and that she would have resisted his demands. It was also said that the evidence could be used to negate the appellant's description of the nature of his relationship with the deceased.

In Walton v The Queen[2] the court concluded that conduct from which a state of mind can be inferred is circumstantial evidence and admissible if relevant and probative to an issue in the case. Wilson, Dawson and Toohey JJ said:

"When a person's state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made.

But in other cases a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. This case is an example. But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted. The distinction between the two approaches is one which can be fine, but it is one which in principle ought to be drawn."

The conversations in this case are properly characterised as conduct on the part of the deceased. The relevant conduct was the fact of the conversations and included the recounting of conversations between the deceased and the appellant to third persons. The conduct permitted inferences to be drawn about her state of mind toward the appellant. The evidence of each conversation in its entirety was relevant, probative and admissible.

The evidence of the recounted conversations between the deceased and the appellant was not admissible to prove the truth of the contents of those conversations. The judge gave clear and explicit directions both generally and then with respect to each of the conversations. These directions were appropriate and adequate.

In Walton Wilson, Dawson and Toohey JJ observed[3]:

"However, as we have said, not all conduct involving an assertion, expressed or implied, is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible."

In the present case the witnesses' evidence of statements made by the deceased was relevant and probative. This is especially so given the proximity of the conversations to the time of death.

The evidence could be used to establish the state of mind of the deceased and whether she would have had a sexual relationship with the appellant. This was a relevant fact. If satisfied that the conversations with the witnesses took place, it was for the jury to say whether they were prepared to draw the inferences the Crown sought.

The evidence may be understood as part of the context in which the appellant's statements to the police were to be assessed by the jury.

Evidence of conversations with a deceased from which conclusions may be drawn about the state of mind of a deceased towards an accused, if accepted by a jury, form part of the context in which an accused's statement to the police about the accused's relationship with the deceased can be considered. That evidence may tend to contradict an accused's assertions about the deceased's attitude to or relationship with the accused.

In R v Georgatsoulis[4] King CJ discussed the admissibility of evidence of statements made to witnesses by the deceased:

"Objection was taken at trial to the admissibility of evidence given by Stillitano, the deceased's mother Dianne Mazzone and her fiancé Mr Ressler, as to statements made to them by the deceased. The evidence was admitted over those objections. It was argued on the appeal that the evidence was wrongly admitted. Some of the statements deposed to were admitted to show the deceased's state of mind with respect to the appellant's attentions. It is true of course, as argued by counsel, that what was most significant was not her true state of mind but her words and actions in the presence of the appellant [as relevant to the provocation defence]. Nevertheless I think that her true state of mind had relevance. It was part of the context in which the jury had to assess the weight to be attached to the appellant's evidence as to what occurred at the relevant times and the true nature of the relationship between him and the deceased. The evidence was not hearsay but was original evidence of contemporaneous statements made by the deceased indicating her then state of mind.

Stillitano gave evidence of a conversation with the appellant in which he told the appellant 'not to touch Lisa any more or there'll be trouble'. The appellant did not respond. That conversation was admissible evidence as part of the context in which the appellant's attitude to the deceased was to be assessed."

The evidence of the conversations was also relevant and admissible to rebut assertions made by the appellant in his police interview about his relationship with the deceased. Evidence of the deceased's state of mind towards the appellant could be used to infer that the relationship between them may not have been as described by the appellant.

The judge directed that the evidence could be used to assess the weight to be given to the appellant's statements to the police. This direction was entirely appropriate. Put more directly, the evidence could be used to rebut the appellant's statements. The judge also gave clear and adequate directions about the nature of circumstantial evidence, the way that it should be assessed and how it could be used. Those directions were given generally and also specifically with respect to the evidence of the conversations.

The judge was correct to admit the evidence of the conversations. Each piece of evidence was a strand of circumstantial evidence relevant and probative to the deceased's state of mind towards the appellant. It was relevant to the nature of the relationship between the deceased and appellant.

The submission of counsel for the appellant that the prejudicial effect of the evidence of the conversations outweighed its probative force must be rejected. The submission that the directions given by the judge as to the impermissible uses of the evidence were inadequate may also be rejected.

Unrecorded Conversation between the Police and the Appellant

It is necessary to set out the relevant provisions of the Summary Offences Act 1953 (SA):

(b) a person authorised under an Act to investigate offences and arrest suspected offenders.

74D. (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person ("the suspect") of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:

(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;

R v KARGER No. SCCRM-01-69 [2002] SASC 294

At a glance

Court

Decision date

Catchwords

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Catchwords

Judgment (429 paragraphs)

R v KARGER No. SCCRM-01-69 [2002] SASC 294 (30 August 2002)

Parties

Legislation Cited (2)

Cases Cited (10)