R v KARGER No. SCCRM-98-224 [2001] SASC 64

James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; R v Karger [2001] SASC 64[67]; Jones v Scully [2002] FCA 1080[82-5]; Bux v Slough Metals Limited [1973] 1 WLR 1358; Seltsam Pty Limited v McNeill [2006] NSWCA 158; CASES CITED: BI (Contracting) Pty Limited v Myer Emporium Limited (2005) 3 DDCR 142; BI (Contracting) Pty Limited v Public Trustee of South Australia (2005) 3 DDCR 161; A.W. Baulderstone Holdings Pty Limited v Bradford Insulation (SA) Pty Limited [2006] NSWDDT17; Seltsam v Minehan (1996) 13 NSWCCR 410; Julia Farr Services Inc v Hayes [2003] NSWCA 37; Adelaide Chemical and Fertilizer Company Limited v Carlyle (1940) 64 CLR 513, 534

DATES OF HEARING: 30.10.06, 31.10.06, 01.11.06, 02.11.06, 11.12.06, 12.12.06, 05.04.07

Messrs M J Neil RFD QC and J C Sheller, instructed by Thompson Cooper, appeared for the cross claimant LEGAL REPRESENTATIVES: Mr T G R Parker SC, instructed by Makinson D'Apice, appeared for the cross defendant

JUDGMENT: 65 Dust Diseases Tribunal of New South Wales Matter No. DDT00073/2003/CC1 (re Derrick Rowley, Plaintiff)

BI (Contracting) Pty Limited (BIC), when it undertook insulation spraying in 1961, could have undertaken some simple steps that would have prevented Professor Rowley from being exposed to asbestos dust and fibre and contracting mesothelioma, from which he died. The statement of that proposition, whilst it might appear to provide the key to the resolution of this case, does not. It does not because that statement hides a number of issues that were contested in this case and that need resolution. Further, it is a statement going to the issue of breach of duty of care and it cannot be made good without an antecedent issue being determined in the affirmative. That antecedent issue is whether BIC owed Professor Rowley a duty of care at all. That was the main issue in this case.

Professor Rowley died as a result of contracting mesothelioma. For the contraction of that disease, he sued the parties to these proceedings. Those parties are the cross claimant, The University of Adelaide (the University) and the cross defendant, BIC. The University employed Professor Rowley. BIC sprayed asbestos insulation at the medical school at the University in 1961.

His case against the University and BIC was that he contracted his illness as a result of exposure to asbestos dust and fibre over a period of about five to ten minutes on one day in 1961 when some asbestos spraying was being conducted at the medical building at the University.

His case against the University and BIC commenced in Adelaide on 12 November 2003 when oral evidence was given and documents were tendered. During the currency of the case on the following day, Professor Rowley settled his case against BIC. The effect of the settlement was that he would receive nothing from BIC and, in due course, a verdict would be entered in favour of BIC in his claim against it. The University had an interest in that settlement and, for that reason, the verdict to be entered in favour of BIC was not entered at the time Professor Rowley settled his case with BIC. The reason for this was to overcome the effect of the High Court decision in James Hardie & Co Pty Ltd v Selstam Pty Ltd (1998) 196 CLR 53. As the matter was done in this way, the University's right to any claim for contribution it might have against BIC was preserved.

To return to the short historical narrative of the matter, after Professor Rowley's case against BIC was settled, he proceeded with his case against the University. The case continued on 18 December 2003, 16 February 2004 and 17 February 2004 when further oral evidence was given and documents were tendered. On 17 February 2004, Professor Rowley's case against the University was settled. It was settled by the entry of a judgment in his favour in the sum of $250,000, plus costs.

In these proceedings, the University seeks a contribution from BIC towards the amount of the judgment and costs it has paid to Professor Rowley.

The parties informed me that there was a question as to whether the applicable law to apply for the purpose of determining the contribution claim was the law of New South Wales or the law of South Australia. It was agreed, however, that it was a question that did not arise, because there was no material difference in the interpretation and application of the two pieces of legislation.

At the commencement of the hearing, the University applied to amend its cross-claim by adding additional particulars of negligence, in particular, that the so-called Dreessen standard had been breached. A ruling on that application was deferred. I do not consider any prejudice has flowed to BIC from the proposed amendment and I allow it.

After Mr M Neil of Queen's Counsel, who appeared with Mr Sheller of Counsel, for the University, opened the case, Mr Parker of Senior Counsel, who appeared for BIC, stated the issues.

It is apparent that these proceedings give rise to numerous issues. The issues concern the state of knowledge as to the health risks associated with asbestos in 1961 and also numerous evidentiary issues.

In a crude sense, the issue may be described as being whether approximately five to ten minutes of exposure to asbestos dust and fibre during the course of a spraying operation in 1961 was enough:

· to give rise to a duty of care, the content of which required the University and BIC to take reasonable steps to prevent Professor Rowley being harmfully exposed to asbestos dust and fibre; · if the answer to the above point is affirmative, to give rise to a breach of that duty; · to have caused Professor Rowley's mesothelioma.

In the course of the conduct of these proceedings numerous evidentiary questions arose. Senior counsel for both parties took the position that, rather than dealing definitively with each tender as it arose, I could receive all the evidence and make my final ruling on it during the course of these reasons.

In the end, the contentious evidence really finished up in two categories. There was evidence that was allowed in, but without prejudice to the right of either party to make appropriate objections and deal with it in the course of submissions and then there was evidence on the voir dire which, strictly speaking, would need to be dealt with differently. The only reason this needs to be expressed in these reasons is so that it is made clear that whichever category the evidence fell into, it was not intended to be treated in any different way to the other. All the contentious evidence, whether received subject to the right of the parties to deal with its admissibility in the course of submissions or whether received on the voir dire, was intended to be dealt with on the basis that the final disposition of that evidence would rest on my rulings which would be made during the course of these reasons.

Professor Rowley was exposed to asbestos dust and fibre from the spraying process of BIC at the medical school at the University in 1961

The statement contained in this heading includes two issues that were contested. They were whether BIC did the spraying at the medical school and whether it was asbestos that was sprayed.

In the course of the University's submissions in reply on the last day of hearing, Mr Parker SC announced that he did not contest that BIC was the party responsible for the spraying. That saves me setting out reasons why I would have made such a finding in any event. That simply leaves the issue as to whether it was asbestos that was sprayed.

Evidence supporting the fact that it was asbestos that was sprayed comes from a number of sources as follows:

(a) Mr Caon's evidence - Exhibit CX 9 paragraphs 6 and 9, Exhibit CX 83, 22.02 and Exhibit CX 85 paragraph 36. Objection was taken to his use of the term "asbestos" as evidence of the fact, but because of his lengthy experience as a lagger from 1953 including the spraying of asbestos, I accept his evidence on this point; (b) the University had a contract for work at the medical school in 1961 (Exhibit CD 4, Tab 7), the specifications of which included fire proof asbestos spraying (Exhibit CD 4, Tab 4 clauses 35 and 95);

(c) Mr Cushway (Exhibit CX 7) started at the University in 1979 as an engineer and in 1984 became Building and Estates Officer and Director of Property Services. Soon after he started in 1979 he became aware that asbestos had been used throughout the construction at parts of the University and this was considered to create a danger to those who may be exposed to asbestos. An asbestos register was maintained. Over time, the University sought to identify places where asbestos had been used and contracted for its removal. Asbestos was identified in the old medical school on Frome Road. The contracting for the removal of asbestos included asbestos located on the steel beams within the old medical school. I allowed much of this evidence over objection. I consider Mr Cushway's position equipped him to give the evidence he did; (d) documentary material evidences the presence of asbestos in the medical school in Frome Road - Exhibit CD 4, Tabs 14, 15, 19, 20, 29, 31, 43 and 47. It comprised 70%-90% amosite. By 8 December 1981, it had been removed - Tab 50.

I find that in 1961 for about five to ten minutes, Professor Rowley was exposed to asbestos dust and fibre at the medical school at the University when BIC was spraying asbestos insulation.

Professor Rowley was not otherwise exposed to asbestos dust and fibre

There is the possibility of some later exposure arising from Professor Rowley's continued work at the University. The evidence on this is flimsy. In the end, the further exposure was not pressed and I say no more about it other than that I am not satisfied on the evidence that there was any later exposure.

The nature and extent of Professor Rowley's exposure

I set out part of paragraphs 14 and 15 of Professor Rowley's affidavit.

14. While I was present at the building site, some of the workers sprayed a material on to the steel beams. There were workers on the ground spraying the beams and there were also workers on platforms spraying higher up…
15. The area where the spraying was being carried out was very dusty. The material that was sprayed was a dirty whitish-grey colour. I was in the vicinity of the spraying for about five but probably closer to ten minutes. I was keen to get out of there because it was not a particularly pleasant environment to be in. I commented to Geoff Harrison about how dusty the place was and that it did not seem very healthy for workers to be working in such a dusty environment…

Professor Rowley also gave evidence in his case and the transcript became evidence in these proceedings (Exhibit CX 83). He described being on the floor when the spraying was done and said it was very dusty. I mean there were clouds of dust everywhere (T.3.43). Professor Rowley walked all around the floor on which the spraying was being done including standing at the bottom of a ladder from which the sprayer was working. At this point, he must have been under some spray and dust cloud (see next paragraph). Over the whole of that floor It was dusty more or less everywhere to a greater or lesser extent. (Exhibit CX 83, p9.11)

Mr Caon swore an affidavit dated 29 October 2003 (Exhibit CX 9). He referred to there being a lot of dust around. Clouds of dust went into the air when bags of asbestos were tipped into the back of the asbestos spray machine. When the asbestos was sprayed, dust also went into the air. Some of the asbestos did not stick and went in to the air and on to the ground. He could see asbestos dust in the air. It looked like snow flakes. There was not a lot of ventilation at the medical school. In cross examination, this was qualified, in part, when he said that bags of asbestos were opened and, from the bag, handfuls of asbestos were put into the machine (Exhibit CX 83, 25.04). This evidence has a significance because it reveals that, apart from the asbestos spray, which was probably mixed with cement, there was also pure asbestos liberated into the atmosphere.

Mr Caon also gave evidence in Professor Rowley's case (Exhibit CX 83). His evidence was consistent with his affidavit. He stated that the asbestos spray on the girders was about one inch thick. This was in accordance with the specification (Exhibit CD 4, Tab 4, clause 95). The further removed from the source of spray, the finer the dust in the air became. He said there was a roof on the building as he had never been on a building that did not have a roof on it before he started.

Mr Caon also swore another affidavit. This was on 5 October 2005 and was in his own case. It became Exhibit CX 85. It is more extensive than his other affidavit and his evidence, but so far as concerns the spraying at the medical school, it is consistent with his other evidence.

On this material alone, which I accept, I am satisfied that Professor Rowley was exposed to asbestos dust and fibre for a period of five to ten minutes on a day in about mid to late 1961. The time in 1961, I take from Exhibit CD 4, Tab 7, from which it would seem work started probably at the beginning of March 1961. The timing of the spraying would then probably be mid to late 1961. Throughout that period of five to ten minutes, a process of spraying asbestos on the steel girders was being undertaken. It was an extremely dusty process. The asbestos dust and fibre in the atmosphere was very thick near the source of the spraying and thinned out over a distance removed from the source. Though the asbestos dust and fibre was thinned out over a distance removed from the source, it was still visible in the atmosphere at all places where Professor Rowley was on the floor over that five to ten minute period. Professor Rowley's exposure over the five to ten minute period encompassed exposure in the thickest of the dust and fibre and also where it had thinned out.

Even on a layman's view of it, this description of Professor Rowley's exposure exposed him to a level considerably in excess of ordinary background exposure that any member of the community is subject to. This, of itself, has a relevance on causation which I deal with from paragraphs 140-145.

I would add that this Tribunal, as a specialist tribunal, is well aware that spraying is one of the dustiest processes undertaken with asbestos if adequate steps are not taken to suppress the dust. I would add also that the content of the dust sprayed at the medical school had a high concentration of asbestos. The specification required a one inch thickness of asbestos (Exhibit CD 4, Tab 4, clause 95). That was applied (see paragraph 22). The asbestos mix also required some cement and a bonding agent.

(b) Other materials relevant to the extent of Professor Rowley's exposure

It is not uncommon for evidence to be given in this Tribunal that if dust is visible in the atmosphere in ambient light its concentration in the atmosphere is at least 5 million particles per cubic foot (5 mppcf). There was evidence to that effect in this case and, though there were qualifications, I accept that evidence. This evidence was given by Mr Stewart (T.106.42) although, with qualifications, he put it as high as 10 mppcf (Exhibit CX 113.47) and Professor Henderson (Exhibit CX 83, 15.40). Professor Henderson's qualifications to give that evidence were challenged, but for reasons given in paragraph 152, I accept he is able to give that evidence.

This evidence was also given in material tendered under section 25(3) of the Dust Diseases Tribunal Act, for example, Mr Kilpatrick (Exhibit CX 50; CX 51, 427T, 449H), Professor Ferguson (Exhibit CX 55, 99U; CX 74, 591), Dr Joseph (Exhibit CX 60, 78I, 149I) and Mr Stewart (Exhibit CX 71, 248F; CX 79, 43N). I note, especially, Mr Kilpatrick's practical experience in observing dusts in the atmosphere and undertaking laboratory assessments, relative to those observations.

There was evidence about the significance of visible dust. It is true that visible dust is not a scientific test of the concentration of asbestos dust and fibre in the atmosphere, nor of the concentration of respirable dust and fibre, nor of fibre type. However, it is a useful test to get some idea of the extent to which Professor Rowley was exposed where a spraying process, with a high concentration of asbestos, was being undertaken.

In the light of all this material, I find that Professor Rowley over the whole period of exposure during the spraying process was exposed to concentrations of asbestos dust and fibre in the atmosphere well in excess of 5 mppcf. I am unable to make a finding as to the precise level.

There was also some literature about the concentration of asbestos in the atmosphere in a spraying process as follows:

(1) article in 1971 by PG Harries (Exhibit CX 4). This was a study of the use of asbestos in naval dockyards. Records of dust sampling during spraying in 1951 showed asbestos fibre counts of 173-322 fibres per cubic centimetre and 3121-5957 particles per cubic centimetre of other dusts. These figures are not very helpful because it was agreed they could not be converted to an assessment of particles per cubic foot. It is, however, more evidence that spraying is a very dusty process;

(2) article in 1976 by Robert Barnes (Exhibit CX 24). This was a study of the process of spraying. The process was described. The process included spraying with a fine water mist, with a mix of chrysotile and small amounts of mineral oil and cement powder. The water mist was to give the mixture an adhesive quality when it hit the surface to be covered. It was sprayed to a depth of a quarter of an inch to two fifths of an inch. That may be contrasted with a spray depth of one inch at the medical school. Despite the use of water, fibres of asbestos contaminated the workers' environment and floated in the air for a considerable time. Concentrations as high as 150 mppcf had been registered in the vicinity of sprayers. Tests in Sydney in 1972 were said to give results varying from 15 to 80 fibres per cubic centimetre, although I note a reading of 5 fibres per cubic centimetre;

(3) chapter from Tweedale's book in 2000 (Exhibit CX 15). This chapter covers a number of matters, but, for present purposes, it is sufficient to note reports on measurements from spraying operations ranging from 4 f/cc (p204) to 1827 f/cc (p203). It demonstrates that spraying can give rise to very dusty conditions and not so dusty conditions where there is damping; (4) part of an article by Tweedale (Exhibit CX 14). This describes the spraying process. It notes that asbestos and cement were usually in a mix of 60/40 and that mineral oil and water were used. It went on to describe the process as obviously a very dusty technique and spoke of dangerous levels of fibre to many including bystander workers doing other jobs (p87). Measurements from 50 fibres per cubic centimetre to 1827 fibres per cubic centimetre were noted (p95). 32. In my view, these articles are not defining evidence as to what the concentration of asbestos was in the atmosphere at the medical school in 1961. Without knowing that conditions were comparable they could not be. The articles do give weight to spraying being a very dusty process and they do provide some indications of concentrations of asbestos that can prevail in certain conditions. They also offer support for the opinion expressed by Professor Henderson as to the probable concentration of asbestos in Professor Rowley's atmosphere (see paragraph 154 below).

33. Objection was taken to the tender of these articles. A useful statement of the law and the admissibility of scientific articles is to be found in the judgment of Mullighan J in R v Karger [2001] SASC 64[67]. I think they are admissible, not to prove the precise concentration of asbestos dust and fibre to which Professor Rowley was exposed, but to prove that spraying can be a very dusty process. Whether it is in any particular case then depends on the circumstances of the occasion and I have dealt with that especially in paragraphs 19 to 22. Professor Henderson has adopted the Harries article and the Tweedale measurements (T.42.17) and, accordingly, they are admissible. In my view, the Barnes article, being to the same effect, is admissible. There was an objection as to whether this comes within Professor Henderson's expertise in any event and, as already indicated, I deal with that in paragraph 152.

34. Mr Parker SC tendered an article by Bell (Exhibit CD 2). BIC relied on this to seek to demonstrate that spraying was not hazardous. The paper covered a number of matters including the investigation of asbestos concentrations in shipyards. Spraying of limpet asbestos carried the opinion no hazard. Wetting process at application of nozzle effective. Like Harries, Tweedale and Barnes, this is not defining evidence of the conditions at the medical school in 1961. It is, however, admissible. I do not find it of use in assessing the concentration of asbestos when Professor Rowley was exposed. The wetting process may have been effective in the Bell study, but it was not effective at the medical school.

35. Other evidence consistent with the fact that spraying can be a dusty process is to be found in Exhibit CX 45. This was a note of discussion on a number of papers that had been presented to the pneumoconiosis conference in 1968 and, in the course of discussion, Dr McNulty at p511 made an observation about asbestos spraying as follows.

The only reference I can find to asbestosis occurring in asbestos sprayers was a casual reference by Gilson in his Wyeth Memorial Lectures in which he mentioned that asbestosis was becoming less common in the textile industry and more common in laggers, asbestos sprayers, etc. There is no doubt that asbestos sprayers work in a very heavily contaminated and dusty atmosphere but there is a sort of pious hope that because the asbestos spray comes out surrounded by a collar of water that this causes aggregation of the smaller particles and that the eventual dust is not respirable.

36. This literature simply reinforces my view that Professor Rowley was exposed to high concentrations of asbestos dust and fibre when he visited the floor of the medical school on which spraying was being done in 1961.

37. There was a confounding factor in relation to the concentration of asbestos in the atmosphere where Professor Rowley was. That factor concerned the extent to which cement was added to the asbestos. I am satisfied there was some cement. The contract provided for it. There was no direct or circumstantial evidence as to the extent of cement being added to the asbestos. Two articles are not very helpful. Exhibit CX 24 describes the process of spraying as involving a mix of asbestos with small amounts of mineral oil and cement powder. The Tweedale article (Exhibit CX 14) refers to a proportion of asbestos to cement as being 60/40. This material does not enable me to make any specific finding about the content of the cement. I am satisfied, however, that asbestos was by far the predominant component of the spray mix. This confounding factor does not affect my view that Professor Rowley was exposed to a level of asbestos considerably in excess of ordinary background exposure, nor my view that his exposure was well in excess of 5 mppcf. In saying this, I am especially mindful of the fact that at all times Professor Rowley was standing or moving in dust visible in the atmosphere and also the fact that one of the sources of that dust was pure asbestos liberated into the atmosphere when it was removed from the bag to the machine.

What was the state of knowledge available in 1961 as to the risks to health associated with asbestos?

38. One of the circumstances to be taken into account in determining whether BIC owed Professor Rowley a duty of care will be the knowledge available to it in 1961 of risks to health associated with asbestos. In this regard, I note that all the knowledge and learning that was available in 1961 was in fact known to BIC. Mr Parker SC accepted BIC was as knowledgeable as any other informed industry participant in Australia in 1961 - submissions 74.48. I proceed to examine the state of knowledge.

39. A note in The Lancet (Exhibit CX 13) on 20 February 1932 referred to "the existence of chronic industrial pulmonary asbestosis" and noted that the first fatality from asbestosis was recorded in 1900. Later in the note, concern was expressed about the expectation in years to come of a large increase in pulmonary asbestosis.
40. Later, in response on 5 March 1932, the inventors of the process for insulating the London tube railways, explained the method they were to use. They noted that an incoming supply of fresh air would remove any possible traces of dust from the vicinity of the worker. Also, sufficient liquid was to be used to prevent the possibility of dry particles of fibre escaping into the surrounding atmosphere. Even at that stage in 1932, a fairly meticulous approach to ensuring the safety of the workers and others resulting from the process of spraying asbestos in 1932 was being expressed.

41. Report in 1930 by ERA Merewether, MD & CV Price (Exhibit CX 25). This report noted that the effects of dust, and this includes asbestos, on the lungs could vary from slight to severe and even fatal. The study, the subject of the report, examined manufacturing processes where there was exposure to pure, or near pure, asbestos. It did not study cases where there was exposure to asbestos mixed with other dusts. It thus has a qualification of not having studied cases of lower exposure than those that were studied to see what, if any, pulmonary consequences resulted. Nevertheless, the report draws a conclusion that pulmonary disability was likely as a consequence of the concentration of dust to which a person was exposed and the length of exposure. Amongst the cases studied, there was no fibrosis amongst 89 subjects who were employed in an asbestos process for a period of 0-4 years. There were three cases with less than five years' exposure, although it was considered that there was some earlier exposure to other dusts in these cases. The report noted that further research was necessary. A large section of the report dealt with preventative measures. It its summary, it stated The appropriate methods for the suppression of dust may only fully be determined when the harmful effects of comparatively low concentrations of asbestos dust are duly appreciated.

42. (a) Paper in 1933 by ERA Merewether, MD (Exhibit CX 26) - This paper noted that exposure to asbestos from less than five years can result in the development of a degree of asbestosis sufficient to cause death. The author stated it would be wrong to assume that so long as the period of exposure did not exceed five years, the risk of contracting asbestosis was almost negligible. He went on to say that this would occur if a worker was exposed to a dense concentration of dust. Development of asbestosis would not occur below a certain concentration of dust.

(b) If a certain, but unknown, amount of asbestos dust is trapped in the lungs, death due to the development of asbestosis is inevitable. The paper considered it important to consider what amount of dust would produce that result, or conversely, what amount of dust, from the practical standpoint, could be inhaled with impunity. (c) The paper went on to consider various processes and spinning was considered to be the process giving off the least concentration of dust. The level that emanated from that process was considered to be a safe level. The safe level was unknown. Further, the acceptance of the level given off by spinning as a safe level was with the reservation that it was subject to alteration and conformity with further medical evidence. It was a safe measure for practical purposes. (d) The paper noted that a practical maxim of the greatest value was that every translation of fiberised asbestos in the factory produces dust which, if not controlled is dangerous, although it was thought the outlook was bright if levels were kept to the safe level earlier mentioned. It noted that one could not be dogmatic that it was a safe level but nothing had arisen to cast doubt on its validity. 43. (a) Study in 1938 by W.C. Dreessen and others (Exhibit CX 12). The paper came to be commonly called, "the Dreessen standard". This study found that the incidence of asbestosis increased with increasing dust concentrations and also length of exposure. It was a study in industrial settings. The study found no cases of asbestosis where dust concentrations were below 2.5 mppcf. There were three doubtful cases of asbestosis that fell in the range of 2.5 to 4.9 mppcf. One of the difficulties pointed out was that there were very few workmen exposed for long periods of time to low concentrations of asbestos dust.

(b) In comments made in setting the value, the paper noted:

From a practical standpoint, one of the most important results of a medical and engineering study such as this is the definition of safe working conditions in the industry under study. (emphasis added)

(c) It was seen as desirable to use such data as are at hand to define tentative safe working conditions that may serve as standards for the guidance of factory managers and engineers until more complete data are available. (p91). (emphasis added)

(d) The value was then set at 5 mppcf tentatively … until better data are available (p91).

(e) The standard had recognised deficiencies: (1) technical difficulties in obtaining accurate measurements; (2) difficulties in evaluating the potency of particular particles perhaps highlighted by the fact that all particles under 50 microns can carry asbestos to the lungs, yet in the particle count in applying the standard, there was no distinguishing between a particle of 50 microns and one of one micron where the former would carry fifty times as much asbestos to the lungs as the latter (p60).

This demonstrates one of the problems of relying too heavily on scientific learning.

(f) The paper did note that it was thought that if asbestos dust concentrations in the air breathed were kept below the limit, new cases of asbestosis would not appear.

44. 7th February, 1945 - Gazettal of the Victorian "Harmful Gases, Vapours, Fumes, Mists, Smokes and Dusts Regulations 1945" (Exhibit CX 22). The preamble noted that health was endangered by excessive quantities of certain products in the atmosphere and that, in order to safeguard health, it was necessary to limit the quantities of such products in the atmosphere to quantities that would not endanger or impair health. It then provided that an occupier of premises or part of any premises should not allow concentrations in excess of specified amounts in the air likely to be inhaled by certain persons including those in the vicinity of the place where the process was carried on. In the case of asbestos, the limit was set at 5 mppcf of air.

45. 1948 Report of the Director of General Public Health of New South Wales (Exhibit CX 27). Of note was an examination of the use of asbestos as heat insulation in a steel foundry. Asbestos was used to reduce the escape of heat from molten metal held in a crucible. The exposure was intermittent and of short duration, about five minutes at each pouring, and was only being done two to three times per week. The dust hazard was considered to be small. However, in view of the dangers associated with asbestos dust, it was advised that a substitute… be used.

46. 1952 Journal of the Commonwealth Department of Health (Exhibit CX 28). Doubt was expressed as to whether any dust could be regarded as harmless if the exposure was sufficient. Steps to eliminate health risks associated with dusty processes were suggested.

47. 1953 (estimated) - Survey by C G Roberts & H M Whaite (Exhibit CX 29). This confirmed a quantitative relationship between dust exposure and onset and development of asbestosis. Methods of dust suppression were suggested.

48. 11 July 1956 Declaration of Certain Trades to be Dangerous Trades (Exhibit CX 30). The Governor of Victoria declared, amongst other things the trade of asbestos lagging or spraying to be a trade which, unless preventative measures were adopted, may be dangerous to the health of persons employed therein, to be a dangerous trade within the meaning of the Health Act 1928. There was tendered with this an extract from the Victorian Health Act 1956. It was the Health Act 1928 in place at the time, but it contained a like relevant provision authorising the Declaration.

49. 19 January 1957 article by D L G Thomas in The Medical Journal of Australia (Exhibit CX 32). This is a report on a 1952 survey to determine the sources and incidences of pneumoconiosis. Different occupations were surveyed including 300 asbestos workers of whom 47 were found to have pneumoconiosis. That 47 did not present the full picture because pulmonary fibrosis from asbestos is insidious in onset and the 47 were established cases. Others may have developed later. Asbestos workers surveyed covered a range of occupations including spraying. The paper commented that it was imperative that conditions improve in dusty trades. It noted that industry in Victoria was becoming very dust conscious. It added,

The use of respiratory devices is recommended only when the hazard is of short duration and when other methods cannot be used effectively. (Emphasis added.) It added that asbestos regulations were awaiting gazettal and that they were very stringent. 50. (a) 1960 paper by J C Wagner and others (Exhibit CX 33). This paper disclosed 33 cases of mesothelioma, all but one of which had probable exposure to asbestos. It implicated asbestos as the cause. The paper was described as a preliminary publication and the problem is being intensively investigated. Some case histories revealed industrial exposure and others revealed relatively short exposure. The findings suggested that mesothelioma occurred 20-40 years after exposure.

(b) Historically, the Wagner paper recorded that the first case of carcinoma of the lung associated with asbestos was described in 1935. By 1955, according to Doll, a total of 61 cases had been reported including one mesothelioma. Carter (1952) mentioned two cases of mesothelioma. A further three cases were described by van der Schobt in 1958.

51. March 1961 National Health and Medical Research Centre - Schedule of Recommended Maximum Concentrations of Atmospheric Contaminants for Occupational Exposures (Exhibit CX 34). This set 5 mppcf of air as the recommended value for asbestos dust. The introductory notes state that the values are intended as guides in the control of health hazards, not as fine lines between safe and dangerous concentrations. They represent conditions to which, it is believed, workers except hypersensitive persons, may be exposed without adverse effects for eight hours a day for five days a week.

52. Thereafter, there was a number of papers (Exhibits CX 35-47) post 1961. As they all post-date 1961 when Professor Rowley was exposed, they do not assist in terms of the state of knowledge that was available in 1961. It would seem that the parties had the same view about this as I was not referred to the content of any these exhibits, with the exception of Exhibit CX 35 where I was referred to the recommended concentration of asbestos in the atmosphere being limited to 5 mppcf.

53. Mr Parker SC objected to evidence of witnesses on this issue unless they were witnesses practising in the field at the time Professor Rowley was exposed and could, by reason of that fact, give evidence of the state of knowledge in 1961 or of what an appropriate expert might advise as to safety at that time. I do not think this submission is right. It would mean that in the case of an event at a time when no practising expert was alive, a person who later became an expert could not give evidence of an earlier state of knowledge based on his learning. I think this is historical material about which these persons may give evidence - see, for example, Jones v Scully [2002] FCA 1080[82-5].

54. Mr Stewart gave evidence in Professor Rowley's case (Exhibit CX 84) and was also called to give evidence on this cross-claim. Evidence he had given in other cases was also before me pursuant to section 25(3) of the Dust Diseases Tribunal Act. I detail the effect of his evidence hereunder.

55. Mr Stewart's qualifications were attacked. Even though he is not a medical practitioner, I consider he was suitably qualified to give evidence as to safety standards applicable in 1961 and his knowledge of such standards then. I consider he was also qualified to give evidence of the extent to which asbestos was a risk to health and I do not think that it is a pure medical question. I think it is a question covered by different disciplines, including Mr Stewart's.

56. From 1952, he was employed by the Department of Health in Victoria as a Scientific Officer - Industrial Hygiene. He retired from there in 1965 and took up a position as Industrial Hygiene Engineer with Mt Isa mines. When he worked in the Victorian Department of Health, he was aware of the Victorian 1945 Harmful Gases, Vapours, Fumes and Mists, Smokes and Dusts Regulations. Although he had not read it, he was aware of what was called the Dreessen standard. He was aware of the "standard" of 5 mppcf.

57. In the 1950s, he was made aware of principles associated with industrial hygiene. This was through the medical department and through reading books and industrial health papers and through discussions with scientific staff and formal discussions within the department.

· the 1945 Victorian Harmful Gases, Vapours, Fumes and Mists, Smokes and Dusts Regulations;

· the 1956 Declaration under the Victorian Health Act of 1928;

· article by Dr Thomas in The Age newspaper in 1956 and a report by Dr Thomas in 1957;

· generally reading books and industrial health papers though the literature he had read by 1961 on matters related to the Dreessen standard was limited; · regular discussions with scientific staff, inspectors and medical officers and formal discussions within the department where he worked;

· visits to factories where dusts were present even though such may not have been directed to asbestos dust;

· on his observations on his visits to factories where dusts were present, reporting on those observations, taking laboratory measurements for dust counts of dust in factories he had visited;

· communications with people working in other departments in other states.

59. In the mid-1950s if Mr Stewart visited a factory and saw dust in the atmosphere of a workplace, that was an indicator that there could be a risk to persons exposed to that dust. He thought asbestos was capable of producing a very serious pneumoconiosis if inhaled, that it was an extremely dangerous dust and that it could produce asbestosis, a progressive condition which could be lethal. He did not comment at that stage in giving his evidence as to the extent of exposure capable of producing such results.

· if dusts could be seen in the atmosphere of a workplace, that was an indication it could be a risk to persons exposed (Exhibit CX 84, 89.30, 93.29);

· the absence of visible dust did not necessarily indicate there was no risk (Exhibit CX 84, 93.30);

· asbestos was an extremely dangerous dust; its effects could be progressive and lethal (Exhibit CX 84, 91.23). He did acknowledge that his view may not have been correct (Exhibit CX 84, 107.39);

· if dust exceeded the standards, then ameliorating responses were required. If the dust could be life threatening, the exposure had to be minimised and this applied particularly to dusts such as asbestos that could be cumulative in their effect (Exhibit CX 84, 93.47);

· if a workplace did not meet the criteria for exposure level it was unsatisfactory whatever the length of time that failure to meet the criteria lasted (Exhibit CX 84, 102.32);

· in circumstances similar to those prevailing when Professor Rowley was exposed, Mr Stewart, if he had the authority, would have instructed that the site be cleared of persons not directly involved in the operation (Exhibit CX 84, 104.39). He gave evidence to similar effect at Exhibit CX 84 T.117.10-31;

· it was never the view that there was a body of thought that asbestos was not dangerous to a worker so long as he was not exposed to high levels of dust over a long period of time (Exhibit CX 84, 107.03);

· the standard used in the 1945 Regulations was not a standard that would guarantee that one would not get sick (T.130.06).

Before 1961, Mr Stewart did not have a view as to what level of exposure would have eliminated health risks from asbestos. He agreed he did not have the scientific expertise to form an opinion as to what was a safe level of exposure. The conclusion put to him does not necessarily follow and that is that as he did not have the expertise to form an opinion as to a safe level of exposure, therefore, he could not form an opinion that a particular level, for example, the Dreessen level, was not safe. It is consistent that Mr Stewart or anybody could have an opinion that exposure above a particular level was not safe, but have no idea at what level exposure was safe. This is because exposure above a particular level may have been determined to be not safe, yet the learning may have been ignorant or undecided as to exposure below that level.

Dr McNulty's report (Exhibit CX 10) opines that it was not reasonably foreseeable in 1961 that a person might contract an asbestos related disease if he was exposed to conditions that Professor Rowley was exposed to.

Dr McNulty gave evidence in Professor Rowley's case (Exhibit CX 11). He is a medical practitioner. In 1958, he knew nothing about asbestos, but he then became interested in the relationship between asbestos and asbestos related lung disease. He visited the Wittenoom mine about four times from 1959 to 1965. The atmosphere there was extremely dusty. He did not take any precautions on those visits. He did not think he was exposing himself to a risk of lung disease.

The standard for the level of asbestos in the atmosphere was reduced over time.

In cross-examination, Dr McNulty agreed that dust in the workplace generally throughout the 20th century was regarded as bad occupational hygiene.

Dr McNulty learned of asbestos in the late 1950s. He learnt that asbestos fibre was a dangerous fibre. He agreed that exposure to that fibre that could be avoided should be avoided. It was known that individuals varied greatly in their capacity to deal with dust. There were idiosyncratic differences between different persons. The reasons for that were not known and are still not known. In the late 1950s, as a principle, one avoided any unwarranted or unnecessary exposure to that sort of dust.

He agreed with the content of a letter from 1945 from the Chief Inspector of Factories. The letter was in the context of shipbuilding and ship repairs and included the following statement.

It is important that even if work will only be temporary, all reasonable practical steps should be taken to reduce the risk to a minimum. The letter also set out recommended steps for avoiding unnecessary or unwarranted exposure and Dr McNulty agreed those steps were in accordance with our recommendation.

By 1950, pulmonary cancer was recognised as a disease of persons working with asbestos.

He stated that the general principle was to eliminate the hazard insofar as humanly possible. If that could not be done, then stick to a limit of international acceptance. If that could not be done, then wear protection.

In 1961, he would have been concerned about persons working in clouds of asbestos dust and concerned if there were no precautions and would have recommended the principles mentioned in the previous paragraph. He wondered whether ten minutes' exposure would be harmful, but he would not have recommended such exposure.

He stated that the practice described in paragraph 45 was most undesirable. That was intermittent minor exposure described in 1948.

Dr McNulty had received the Wagner article probably in 1960 (T.138). It set out a number of case histories of mesothelioma, including housewives, domestic servants, cattle herders, farmers and accountants. They were removed from heavy concentrations of exposure, but they were exposed to environmental pollution. Reading especially the Wagner paper, one was left with the suspicion that a combination of individual idiosyncrasy and minimal exposure may be dangerous.

Dr McNulty was referred to an article in the British Medical Journal on 30 April 1960 where asbestos dust was said to be most toxic and the amount needed to cause asbestosis was not known, so constant vigilance and new preventative methods were needed if the disease was to be abolished. Dr McNulty agreed this was all good sense in 1960.

In re-examination, Dr McNulty agreed that in 1961, he did not consider that a person with a brief exposure to asbestos would have incurred an asbestos related disease. I do not consider that undoes the evidence he gave in cross-examination as to risks to persons who had brief exposure. His view that such a person would not have suffered an asbestos related disease is not inconsistent with his evidence that they were at risk and at risk because a safe level of exposure was not known and there could be variations between persons exposed and it was not known and is still not known why there are such variations.

Professor Henderson, in giving evidence in Professor Rowley's case, apparently agreed with Mr Rundle, then counsel for the University, that 5 mppcf was a safe level of exposure (Exhibit CX 83, T.19).

(a) However, there was an ambiguity in the evidence and it was not clarified (Exhibit CX 83, T.19). The following exchange occurred.

Q. But as you say it was regarded though for some years as the, for want of a better word, a safe level.

A. It was regarded as an exposure standard at the time.

Q. Viewed that it was safe but unfortunately it has not worked out that way.

A. It hasn't worked out that way, no, it hasn't. I agree with you.

(b) The premise in the first question was not justified. Professor Henderson had not said that the level was regarded as a safe one. That appears to be reflected in his answer to the question. The next question asserts the viewing of the standard as safe and then adds another subject matter to the question. The answer no is probably meant to be yes. That is, Professor Henderson was agreeing with what had been put to him and that seems evident from his next answer. It is a problem often raised with an answer in the negative when the question contained a negative. However, the cross-examiner in suggesting to Professor Henderson that he was agreeing with him has not made it clear whether the agreement is with the first part of the question, the second part or both parts. The fact that he was trying to clarify a negative upon a negative suggests that the last question was directed to the second part of the previous question. The answer to the last question seems to be founded on that too. I take it that Professor Henderson's agreement with the cross-examiner was that the standard had not worked out to be safe, not that it was viewed as safe. Mr Kilpatrick's evidence

Exhibit CX 52 at 465V to 466I, he thought that though a reasonably prudent employer who wished to protect his workers against asbestosis might have felt comfortable if he had adopted a standard below 5 mppcf, the Wagner article might have made some people think.

In 1962-65, there were almost no academically qualified occupational physicians practising in private industry in Australia (Exhibit CX 61).

In short, Professor Ferguson's view was that as at 1960 for asbestos to cause asbestos related illness, it required intense exposure over a long period of time, for example, day-in-day-out, eight hours per day in some sort of asbestos process to cause asbestosis (Exhibit CX 56, 765). The same was true of lung cancer (Exhibit CX 56, 778C). See also Exhibit CX 61, CX 66,820H. He thought the cases of mesothelioma in the Wagner paper were of considerable exposure (Exhibit CX 53).

Illustrative of the lack of appreciation of the hazard to other than prolonged and intense exposure were two episodes Professor Ferguson gave evidence about. A senior industrial hygienist colleague of Professor Ferguson in 1966 spent six months measuring dust levels at Wittenoom without taking protective measures and the industrial hygienist responsible for testing respiratory protective devices in Australia did not, in about 1967, know of the relationship between crocidolite and mesothelioma. I do not consider this evidence to be of much weight and nor do I consider it to be evidence that all industrial hygienists or others working in that field had that level of lack of appreciation for the following reasons:

(1) if truly the industrial hygienist in 1967 did not know of the relationship between mesothelioma and crocidolite, he should have. Not only had the 1960 Wagner paper been published, but there were developments following that paper - see, for example, the Newhouse & Thompson paper in 1965 (Exhibit CX 36);

(2) this does not tell us what the full extent of the industrial hygienists' state of knowledge was as to the relationship between asbestos and mesothelioma or other lung diseases;

(3) that a senior industrial hygienist in 1966 did not take precautions might tell us: (a) that he was not up-to-speed with the learning in the area when he should have been; or (b) that he was foolhardy or turning a blind eye to his own safety; or (c) both;

(4) at most, this tells us that in particular situations, two industrial hygienists did not consider they were at risk. Other industrial hygienists or persons working in that field might have taken a different view. In the 1950s, Mr Stewart was using a mask or respirator.

Cross-examination of Professor Ferguson elicited qualifications to his position that prolonged exposure to asbestos was required to cause lung disease and also elicited other relevant evidence and I proceed to look at some of that evidence.

It was known by 1930 that asbestos was a dangerous fibre (Exhibit CX 56, 805L) and that asbestosis was a debilitating, progressive disease that could kill (Exhibit CX 56, 803N). It was insidious and persistent (Exhibit CX 65, 197R). Different people exposed to asbestos could have different susceptibilities (Exhibit CX 65, 214H).

By the end of the 1930s, there were numerous reports in literature available in Australia of an association of asbestos with lung cancer (Exhibit CX 56, T.806Q).

It was well recognised through the 1940s that all asbestos was toxic (Exhibit CX 56, 809O) in sufficient quantity (Exhibit CX 56, 809U).

The 1947 Inspector of Factories report in Australia presented strong evidence of the link between asbestosis and lung cancer (Exhibit CX 56, T807T-808E). In 1955, the association was confirmed beyond reasonable doubt (Exhibit CX 61). As at 1961, the view was that one needed to have asbestosis to have lung cancer from exposure to asbestos (Exhibit CX 66, 827G).

He agreed that in 1961 asbestos dust was most toxic and the amount needed to cause asbestosis was not known, so constant vigilance and new preventative methods were needed if it was to be abolished (Exhibit CX 57, T.870T-W).

He agreed that mesothelioma and lung cancer kill and asbestosis is capable of killing. All may come on many years after inhaling asbestos. Unnecessary exposure to that fibre in 1950 should have been avoided. By 1959/60, because of the growth of knowledge, that was even more desirable (Exhibit CX 57, 880-881). He qualified some of this evidence in re-examination, but not in a way that, in my view, lessens the burden of his earlier evidence.

Alarm bells rang around the world with the Wagner article (Exhibit CX 65, 200P). The authors of the 1960 Wagner article called their observations preliminary and recommended further research. The Wagner finding immediately became the subject of further research. The article was enough to alert everyone working in the field that further investigation was needed (Exhibit CX 65, 193W).

Any dust should be avoided (Exhibit CX 56, 801O). It is one of the principles of occupational health to reduce exposure to the minimum practically achievable (this was speaking as at the 1950s) (Exhibit CX 56, 801S).

Then at Exhibit CX 56, T810T-V, he stated that as at 1950 there was a general principle in occupational medicine that it was desirable to reduce unnecessary exposures, not only having regard to reducing the exposure just below a putative safe limit, but to as low a level as was reasonably attainable. This was even if exposure was to a level that was not thought to cause disease (Exhibit CX 65, 198D-H).

The Dreessen standard of 5 mppcf did not set a safe limit (Exhibit CX 57, 861N). It was a standard to which people could be exposed with reasonable safety until a better standard was evolved. It tended to be adopted because there was nothing else people had to go on (Exhibit CX 57, 868U). It was a temporary standard until better data became available (Exhibit CX 61). It was clear at the time that Dreessen was underestimating the hazard (Exhibit CX 66, 840S). It was acknowledged to be marginal in terms of safety (Exhibit CX 81, 271V). In that context, Professor Ferguson would recommend that dust be reduced as much as reasonably feasible (Exhibit CX 66, 841E; CX 74, 593).

Any occupational physician reading the Dreessen paper would have got the message that 5 mppcf was not a safe lower limit (Exhibit CX 81, 300R).

In Exhibit CX 56 at 805V to 806D were the following question and answer:

Q. …if I can just put you to what the Chief Inspector wrote in 1938. "There can be no doubt that dust if inhaled, physiologically is undesirable. Moreover dust that is thought today to be harmless may, following research, be viewed in another light tomorrow. It's not many years ago when the dust of asbestos was regarded as innocuous while today it is recognised as highly dangerous." (emphasis added)

Professor Ferguson was clearly of the view that scientific knowledge in the field of asbestos and its known risks was something that had evolved over the years (Exhibit CX 56, 805V-806D). Also as at 1961, there was not, in the scientific learning a known and established safe level of exposure (Exhibit CX 65, 193W). And there are limitations in science in predicting unknown risks (Exhibit CX 74, 566, 583).

There is always a delay before initial findings of studies are accepted by the occupational health profession and years more before regulatory action follows (Exhibit CX 68, p21).

It would seem Professor Ferguson approached the matter from the point of view of the risk occurring without regard to the consequences of the risk. The questions and answers at Exhibit CX 74, 582 and 583 appear to support that.

He thought it was unlikely that a person would develop asbestosis if he was exposed to less than 5 mppcf for less than five years. It was a matter of the product of the concentration and time of exposure so that if exposure was less than 25 particle years, the chances of getting asbestosis were quite small (Exhibit CX 60, 117-8). He interpreted the Dreessen standard to mean there was no risk to health if a person worked at a level below the standard (Exhibit CX 60, 127). This is not a correct interpretation of the document. Nor, does it accord with other evidence. It is also undermined by evidence in another case where he said in 1958 nine months' exposure was sufficient to cause asbestosis (Exhibit CX 60, 144). The Dreessen paper itself speaks of two cases of asbestosis with less than 25 particle years of exposure (Exhibit CX 60,150). I do not accept the interpretation Dr Joseph put on the Dreessen paper.

He referred to the Dreessen paper as having some cases of asbestosis with an exposure of less than 5 mppcf (Exhibit CX 69, 152Q). He referred also to a paper in 1934 by Wood & Gloyne with three reported cases of asbestosis with less than a year of exposure (Exhibit CX 69, 162Q). He noted that the 1949 Merewether paper reported a lung cancer risk with asbestosis (Exhibit CX 69, 165G). He commented that the 1955 Doll paper reported three cases of lung cancer without asbestosis (Exhibit CX 69, 165L).

At Exhibit CX 69, 189P, Dr Leigh was asked a lengthy question about the Dreessen paper and whether, on the information available in it, an end-user might be seen to be at risk in 1938 of contracting asbestosis. He gave a lengthy answer, not entirely responsive, but it does seem to imply that there was a risk.

Asbestos has been recognised as a toxic substance since the 19th century (Exhibit CX69,177P). As at 1947, it was a dictum in the field of occupational hygiene to have the lowest possible exposure to a toxic substance (Exhibit CX 69, 179W).

The risk of mesothelioma should have been known in 1960 (Exhibit CX 69, 197P). The requirement for dust control to reduce it should have been known then (Exhibit CX 69, 197T). I am not really implying there how much reduction for mesothelioma would be required because the quantitative aspects of that were only worked out subsequently. (Exhibit CX 69,197Q). The requirement for dust control and respiratory protection to reduce the risk of mesothelioma should have been known in 1960 (Exhibit CX 69, 197T). This should have been known to executives of companies, such as James Hardie, but I'm not suggesting they should have known that it should be reduced to nothing. (Exhibit CX 69, 197X).

The following questions and answers appeared at Exhibit CX 69,199D-G.

Q. Does it come to this that you are of opinion that the executives of my client company ought reasonably to have given the Wagner paper some consideration and ought reasonably to have awaited developments in the profession. A. Yes, that's reasonable.

Q. You do not suggest therefore, that they ought to upon their receipt of the paper, accepted what was is in it as gospel and implemented alterations within their enterprise in response to it. A. Not immediately on receipt of the paper.

At T.203C-E, the following question and answer appeared.

Q. Would you agree with this proposition, "The existence of mesothelioma as a specific entity was not accepted by the world's leading cancer authority Professor Rupert Willis nor was its relationship to asbestos appreciated prior to the mid 1960s with the exception of a few deeply involved experts. A. By mid 1960 - by 1960, if you put 1960 there rather than mid 1960s.

As to the Dreessen standard, it was known in the 1940s and 1950s that measurement devices at the time were unreliable and accordingly dust levels should be kept as low as possible. That was the general premise of occupational hygiene at the time (Exhibit CX 73, 421U).

Mr Rogers's approach to worker safety is one that does not necessarily conform with the obligations of a person under a duty of care. He did not agree that obedience to legislation and protecting the health of persons exposed to asbestos might be two entirely different matters (Exhibit CX 73, 445R). I would add here that compliance with legislation or standards is not inconsistent with negligence. Statutory regulations or standards do not supersede a common law obligation - Bux v Slough Metals Limited [1973] 1 WLR 1358.

In speaking of the standard of 5 mppcf, he reported that effective fibre counting methods were not available until the 1970s. Hence, the conventional standard would have provided no safeguard against mesothelioma. On an empirical basis, it was assumed to reduce the risk of asbestosis (Exhibit CX 67, para 3.1.8).

He reported that prior to the Doll survey of 1955, lung cancer was associated with asbestosis with about two exceptions (Exhibit CX 67, 3.4.2).

He reported that the existence of mesothelioma as a specific entity was not accepted by the world's leading cancer authority, Professor Rupert Willis, nor was its relationship to asbestos appreciated prior to the mid-1960s, with the exception of a few deeply involved experts (Exhibit CX 67, para 2.7). He must have been talking of established scientific proof here, because at paragraph 2.24, he reported that the association of mesothelioma with asbestos was suspected in South Africa in 1958 and confirmed in 1960.

He was not particularly impressed by the Wagner paper (Exhibit CX 75, 606E). It was an exceedingly interesting paper, but one he put to one side for a year or so (Exhibit CX 75, 606H).

He agreed that if a substance was known to be dangerous or toxic in 1950, it was a basic tenet of industrial or occupational hygiene to minimise or eliminate the exposure to such a substance (Exhibit CX 82, 194H).

Findings of the State Coroner of Victoria, 18 June 2004, Case No. 2598/03. This concerned the death from mesothelioma of a Donald Rawson. It does contain a record of the history of asbestos exposure and knowledge of the risks associated therewith over time. However, this is really a second hand and truncated account of the Coroner of reports of other persons. I take no note of it, especially in the presence of more direct evidence put before me in the form of articles, reports and evidence in this and other cases. It lists many articles and reports that were not tendered in this case. I do not propose to take note of them.

Report by G Major and A J Rogers, Commonwealth Institute of Health, The University of Sydney, 11 August 1981. This was a report of an examination of asbestos in the University buildings in 1981 and an assessment of the safety aspects thereof. They dealt with safety aspects generally. One thing they commented on was the NH&MRC document and Threshold Limit Values for different types of asbestos. In this context, they wrote,

It is useful to point out that just as experienced occupational hygienists do not interpret the TLVs as fine lines between safe and dangerous concentrations, they do not support the wilful exposure of workmen to air contaminants. It is their practice to ensure that all exposures are kept at a level as low as is reasonably achievable and this is governed by their knowledge of the toxicology of the material and environmental, industrial and other practices. They would therefore recommend on occasions the adoption of prudent practices to limit exposure irrespective of the actual concentration of any contaminant to which persons are exposed.

Messrs Major and Rogers did not use respirators when inspecting the areas where asbestos was as they did not perceive themselves to be at any greater risk than that to which they were exposed during their normal working day. That might be their perception. Others might take a different view. This has been dealt with in paragraph 80. They added,

We do not think that tradesmen, either, are at any excess risk to their health when doing minor work but there are occasions when we would think it prudent for them to take certain limited precautions such as wearing a respirator and taking greater care with the house-keeping.

In large measure, this case was argued around McNeill. On the face of it, that case does have a special application to this case because Father McNeill's exposure was in 1961, the same year as Professor Rowley's exposure.

In 1961, Father McNeill assisted in placing a roof over a rumpus room at his sister's house. In doing that, he cut, drilled, rasped and fixed some corrugated asbestos cement sheeting. He did it on two to three Mondays for two to four hours on each occasion, totalling not more than about 10 to 12 hours' exposure at the most. The sheeting contained between 10 and 15% content of asbestos fibre. He contracted mesothelioma as a result. He sued the manufacturer of the sheeting for this injury.

Judge Duck found that what was foreseeable in the circumstances was the development of lung disease from exposure to the asbestos dust. The Court of Appeal disagreed with that and held that there was no duty of care owed to Father McNeill.

On the question of duty, it was held that in the context of those exposed to asbestos, it is not right to adopt one broad class of end-users to whom risk of exposure to asbestos was foreseeable. This was because there is a vast array in the degree to which end-users may be exposed, with some exposed to undiluted asbestos for hours per day over several years down to exposure of the kind suffered by Father McNeill. Father McNeill was in a class of persons to whom the body of knowledge of risk associated with asbestos use did not extend. The body of knowledge dealt with industrial disease risk where the intensity of exposure was different to that of Father McNeill. The person whose reasonable foreseeability of risk must be considered is and must remain a home handyman who does not encounter the product in an industrial or commercial continuing situation [38]. It would be a legal error to treat all end-users of a manufactured product uniformly.

I consider that there are several points of distinction between McNeill and this case and they are:

· McNeill was an end-user case. Professor Rowley was not a user at all. This is not an end-user case;

· in McNeill, the manufacturer had, for some time before Father McNeill used the product, ceased to have control of it. Here, BIC was in control of the spraying operation;

· in McNeill, there was no physical proximity between the manufacturer and Father McNeill. Here, BIC and Professor Rowley were physically proximate;

· an aspect of the control distinction is that the manufacturer in McNeill could do nothing practical at the time Father McNeill was using its product. Here, BIC had the opportunity to undertake simple, practical measures to avoid Professor Rowley being exposed. I shall come to those later;

· Father McNeill had a very light exposure over two to three broken periods. Professor Rowley had a short period of exposure, but it was intense;

· Father McNeill was exposed to the dust of a product which comprised about 10 to 15% asbestos. Professor Rowley was exposed to a product with a far higher concentration of asbestos;

· Father McNeill was exposed in a small, backyard home handyman situation. Professor Rowley was exposed in the course of a commercial, industrial enterprise.

These are, in my view, differences of significance, such that I do think McNeill is truly distinguishable and does not apply to this case. The learning up to 1961 must be looked at in the circumstances of Professor Rowley's exposure.

I proceed to make findings on that learning which I have summarised above and to consider whether that learning, together with other circumstances, gives rise to a duty of care in this case.

BIC owed Professor Rowley a duty of care when it conducted its spraying operation in 1961

I make the following findings as to the learning of the dangers of asbestos that was available in 1961:

(b) toxic effects included, but were not limited to, asbestosis, cancer and mesothelioma;

(c) each of those diseases was known to be fatal or potentially fatal;

(d) the effects of exposure to asbestos were not immediate and took many years to develop;

(e) it was known that exposure to a level of 5 mppcf over a sufficiently prolonged period would produce asbestosis and could produce lung cancer. There had been cases of asbestosis at levels below 5 mppcf and where the exposure was less than prolonged;

(f) there were cases of mesothelioma attributed to relatively light exposure to asbestos;

(h) light exposure to asbestos in certain processes, for example, that described in paragraph 45 was recognised to be hazardous even if the hazard was small;

(i) individuals were known to have different capacities to deal with dust; there were idiosyncratic differences;

(j) further investigation and study were required and were being undertaken;

(k) Dreessen understated the hazard and was marginal in terms of safety. The Dreessen value was a temporary one until better data became available;

(l) dust in the workplace was regarded as bad occupational hygiene. Any dust should be avoided. Exposure should be limited to the minimum practically achievable;

(m) because asbestos was a dangerous dust and fibre, if exposure to it could be avoided, it should be;

(n) the general principle was to eliminate the hazard insofar as humanly possible;

(o) responsible industrial hygienists in 1961 would have recommended against the exposure to asbestos dust in circumstances in which Professor Rowley was exposed;

(p) a combination of individual idiosyncrasy and minimal exposure might be dangerous. 122. The learning as to the dangers of asbestos up to 1961 had progressed in a way such that, at each new development, it was learned that asbestos was more dangerous than it had been understood to be up until then. Some, but not all, developments illustrating this were:

(a) in 1900, the first fatality from asbestosis was recorded;

(b) in 1933, the Merewether paper noted that exposure to asbestos for less than five years could result in asbestosis, sufficient to cause death;

(c) in 1935, there was the first recorded case of lung cancer;

(d) in 1938, the Dreessen paper reported three doubtful cases of asbestosis where the exposure level was between 2.5 and 4.9 mppcf;

(e) in 1947, there was strong evidence of the link between asbestosis and lung cancer;

(f) in 1950, lung cancer was recognised as a disease of persons working with asbestos;

(g) in 1952, there were two recorded cases of mesothelioma;

(h) by 1955, there had been 61 cases of lung cancer and the association of asbestosis and lung cancer was now beyond reasonable doubt. There were a couple of reported cases of lung cancer without asbestosis;

(i) in 1958, there were three recorded cases of mesothelioma;

(j) in 1960, the Wagner paper disclosed a number of cases of mesothelioma and also some of the cases were to exposure which was apparently short.

It will be seen that as knowledge of the dangers of asbestos emerged at different times up to 1961, the learning was that it was more dangerous than was previously thought. Up to 1961, this had happened in three ways; the intensity of exposure required to cause illness was seen to be lessening, likewise the length of exposure was seen to be lessening and new and more catastrophic illnesses were being discovered. There was no reason to think that scientific learning in relation to asbestos would be frozen in 1961 so that there would be no more learning. Several things may be said about that:

(a) it is not in the nature of scientific learning generally that it is frozen and makes no progress;

(b) there was every indication that there would continue to be more scientific learning about the dangers of asbestos. The papers were indicating that further studies were required;

(c) even if there was to be no further scientific learning, the scientific learning as at 1961 would not be the defining matter that determined whether or not BIC owed Professor Rowley a duty of care. This is because scientific learning cannot dictate whether or not a duty of care exists. It is a circumstance, an important one, to be taken into account in considering all the circumstances as to whether a duty of care arises. Further, in determining proof of requisite facts, it is not scientific proof that is required to satisfy the legal test of balance of probabilities.

The learning in 1961 as to the dangers associated with asbestos was to the effect that it was known in an established, scientific sense that exposure to asbestos at a sufficient level over a sufficient period would cause lung disease which could include asbestosis, lung cancer or mesothelioma.

If, in 1961, one asked the question "what is the known, established, scientific learning as to the dangers of asbestos?", one would be likely to obtain the answer in the previous paragraph.

If, in 1961, one were to go a step further and ask another question such as "has the learning expressed any other risk that has not reached the level of known, established, scientific learning?", the answer would be "yes".

If, in 1961, one were to ask the question and receive the answer in the previous paragraph, that would lead to another question, "what risk?" The answer to that question would include information such as:

(a) very recent studies have shown some cases of mesothelioma from relatively light exposure;

(b) how light the exposure needs to be is not known, but it has gradually been getting less over time and further research is being conducted;

(d) because further research is being undertaken, the information available today is not likely to be the last word on the matter.

If, in 1961, the person making the enquiry were then to ask "what should I do?", the answer would be "it depends".

The answer would depend on the circumstances of the operation and, if the process had to proceed, the advice would have been at least "to the extent that you can reasonably do it, take steps to avoid people being exposed". That advice would be especially important as asbestos was known to have potentially fatal consequences and those consequences would not occur for many years. It would be important not to expose persons whilst one waited for many years to see if there were going to be any developments and what those developments might be. It would be too late then to protect those exposed in the meantime. I reject Dr Gandevia's approach (paragraph 109) as an appropriate one in the circumstances especially in light of Professor Ferguson's evidence that alarm bells were ringing with the Wagner paper (paragraph 88).

In my view, BIC's submissions pose the wrong question. This is demonstrated by, for example, paragraph 8.3 of the written submission which includes,

In evaluating what BIC, as a reasonable person, should have done in response to the risk, it is essential to identify the risk that was known at the time. That is, a risk arising from prolonged and heavy exposure to asbestos fibre. It is true that that submission was in the context of breach of duty rather than existence of duty, but it ties in with a similar submission on the question of existence of duty. This, in effect, defines the question as one confined to particular defined risks. There were other risks at different levels of certainty. The same problem arises with paragraph 8.1 of BIC's written submission.

In considering whether BIC owed Professor Rowley a duty of care, I am mindful of the need that the duty be one owed by BIC to him and not to others, for example, to its employees - McNeill at [2]-[6].

I am also mindful of the facts that Professor Rowley was a bystander and that his exposure was of short duration. Neither is a disqualifying factor in law or policy as to the existence of a duty of care. They are both factors to be taken into account in considering all the circumstances. Examples of bystander cases include: BI (Contracting) Pty Limited v Myer Emporium Limited (2005) 3DDCR 142; BI (Contracting) Pty Limited v Public Trustee of South Australia (2005) 3DDCR 161; A W Baulderstone Holdings Pty Limited v Bradford Insulation (SA) Pty Limited [2006] NSWDDT 17. Selstam v Minehan (1996) 13NSWCCR 410 is an example of exposure of short duration (four days' exposure in 1955 - 421A).

In Julia Farr Services Inc v Hayes [2003] NSWCA 37, Giles JA wrote at [125],

Foreseeability can turn on knowledge of the dangers of any exposure to asbestos, including the calculus for breach of duty, and is not confined to knowledge of the dangers of exposure to high levels of asbestos or levels of asbestos above any particular standard.

In my view, the question to be asked in this case is not the question in paragraph 125 hereof. If it is, it is not the only question to be asked. In the circumstances of this case, questions of the kind posed in paragraphs 126 to 128 should have been asked. If they had been, information of the kind mentioned in those paragraphs would have been elicited.

I am mindful also that the law in relation to foreseeability does not require foresight of the precise mechanism of injury or of the precise injury. This is well established law and has been applied in many dust diseases cases including, BI (Contracting) Pty Limited v Public Trustee of South Australia at [22]. In that case, it was stated that the state of knowledge in the early years (1964) did not permit one to say that low doses were safe [39]. The same may be said of knowledge in 1961.

In all the circumstances, I am satisfied that BIC owed Professor Rowley a duty of care.

BIC breached the duty of care it owed to Professor Rowley

There was a number of simple steps that BIC could have taken as follows.

(1) It could have prevented Professor Rowley from gaining access to the site where it was conducting its spraying operation. That is a step that could have been undertaken at next to no cost.

(2) If that was beyond its capacity for want of some authority, it could still have taken that step in concurrence with the University. Alternatively, it could have placed an obvious sign warning of its operation. It would not have been difficult to frame a sign to the effect that asbestos spraying was in operation, that it was dangerous to health and could be potentially lethal and that entry was therefore prohibited or at the risk of the person entering. Such a step could have been undertaken at next to no cost.

(3) The spraying process could have been sealed off at low cost. This may have resulted in some consequential costs in dealing with the dust within the sealed off area, but that would be a cost necessarily occasioned by BIC having to satisfy its duty to its employees in any event. The submission that this step was not realistic because one does not know at what point to seal it off is not made good in my view. Sealing the process off at whatever point would have kept Professor Rowley away from the dust.

In considering whether BIC, as a reasonably prudent operator, ought to have taken any of the above steps, it is necessary to weigh a number of matters including a consideration of the degree of the probability of Professor Rowley's suffering injury (a realistic possibility, though not a probability, not far fetched or fanciful), a consideration of the consequences in the event of injury occurring (potentially lethal), a consideration of the expense, difficulty, inconvenience or impracticability of taking alleviating action (little expense, difficulty, inconvenience or impracticability).

The potentially lethal consequence calls for a high degree of precaution - Adelaide Chemical and Fertilizer Company Limited v Carlyle (1940) 64 CLR 513, 534.

When all matters are considered then, in my view, BIC, as a reasonably prudent operator, ought to have taken one or more of the above steps. Its failure to do so constituted a breach of its duty which it owed to Professor Rowley.

BIC's breach of duty caused Professor Rowley's mesothelioma

The medical causation question was dealt with by Professor Henderson. There was an attack on his qualifications.

Professor Henderson was challenged to the effect that one could not express a scientific opinion without knowing a number of variables (T.40.19). I do not accept that that is so as an absolute proposition. It depends on what it is that is sought to be proved or, as Professor Henderson said, on the level of certainty required. If, for example, it was established that a person was standing in a cloud of asbestos dust, that was so thick that he could not be seen from ten feet away, for half an hour, then one could express a scientific opinion that for that period the person was exposed to a level that was in excess of ordinary background exposure or that was above the Dreessen level, whatever the information as to the variables. If one wanted to know whether the exposure level was in excess of a particular figure, say, 50 mppcf, then one might have to analyse the variables.

It was that challenge that then led to a challenge on Professor Henderson relating to the Expert Witness Code of Conduct. I do not accept that the first challenge warranted the later one.

Professor Henderson's fundamental position was that Professor Rowley's exposure was brief and intermittent bystander exposure in excess of background exposure. That is evident from Exhibit CX 3, 6 June 2003, p11. On page 5 of that report, he explains clearly what is encompassed by background exposure and it is evident that Professor Rowley's exposure, however described, was in excess of background exposure. Professor Henderson explains it further on page 9 of that report. The distinction between background and above background exposure is further explained by Professor Henderson in Exhibit CX 83, T.16.36-17.05; see also T.21.09-18.

Whatever attack was made on Professor Henderson as to levels of asbestos in the atmosphere, his understanding as to whether the asbestos was mixed with cement, wind conditions, distance of Professor Rowley from the spray source and other physical conditions prevailing on the day, it does not, in my view, affect the opinion he expressed. On the findings I have made as to the conditions prevailing on the day, they are ample to found the view of Professor Henderson that Professor Rowley was subjected to brief and intermittent bystander exposure in excess of background exposure.

On these facts alone, I am satisfied that Professor Rowley's mesothelioma was caused by his five to ten minutes' exposure in 1961. Professor Henderson's history of Professor Rowley's exposure in 1961 is consistent with the facts relating to that exposure as I find them. The complicating factor on causation is that Professor Henderson assumed there was continued exposure from loose asbestos remaining on the site after the spraying was complete, from Professor Rowley brushing his clothes contaminated with asbestos from the spraying and from asbestos being disturbed when maintenance workers came to the medical school from time to time. These assumptions may not be unreasonable, but I do not think the evidence supports a finding of exposure in those ways. The question that remains then is whether the exposure from the spraying is sufficient. Professor Henderson expressed his view ultimately in this way.

Although Prof. Rowley's claimed exposure to asbestos represented brief or intermittent bystander exposure only, it is my perception that his exposure was in excess of any background levels of exposure sustained by the general population. As such, it is my opinion that his bystander exposure to asbestos at the Adelaide medical school in Frome Road, Adelaide, during the years of about 1960-1970 and especially in 1960/1961 represented exposure in excess of "background", and as such that exposure made a significant causal contribution in addition to, and on top of, his background risk of mesothelioma : as such that exposure made a significant and substantial causal contribution towards the induction of his right pleural mesothelioma, "on the balance of probabilities". (emphasis added)

The emphasis laid by Professor Henderson on the period especially in 1960/1961, that being the exposure to the spraying, leads me to accept that Professor Henderson's view is that that exposure, of itself, was sufficient to and did cause Professor Rowley's mesothelioma. I accept that view of Professor Henderson.

A number of matters supports that causal link. Some, in themselves, may be neutral, but together they support such a conclusion. The matters are:

• the latency period is classic for the development of mesothelioma;

• most health authorities (and Professor Henderson includes some in his report Exhibit CX 3) recognise that there is no threshold level of exposure to asbestos below which there is no increase in the risk of contracting mesothelioma;

• Professor Henderson set out a number of case studies (pages 5-7 of Exhibit CX 3) revealing an increase in the risk of contracting mesothelioma from low exposures;

• Professor Henderson also set out case studies from his own experience. He does note that Professor Rowley's exposure was one of the lowest in his experience. He did not remember a case of a smaller duration (Exhibit CX 83, T.21.22);

• Professor Henderson also set out details from the 2002 report from the Australian Mesothelioma Register supporting the nexus between low doses of exposure and the contraction of mesothelioma;

• during the spraying process in 1961, Professor Rowley was exposed to a bystander level of exposure that was in excess of a background level of exposure sustained by the general population. That was further explained in his evidence in Professor Rowley's case. It is clear that the exposure was in excess of background exposure and, accordingly, there was an incremental increase in risk additive upon background risk;

• as part of Exhibit CX 2, there was a report of Dr Gower being a report of a CT scan of 22 April 2003. Exhibit CX 2 was objected to. I think it is admissible. It notes calcification. That is a marker of prior asbestos exposure, but it does not advance the exposure beyond that which I have found;

• there is evidence, which I accept, that all exposure to asbestos is causative of, or materially contributes to, mesothelioma (Dr Leigh - Exhibit CX 69 - 190-1, 194R, 217-8; Dr Joseph - Exhibit CX 64 - 67P).

I find that Professor Rowley's exposure to asbestos from the spraying process in 1961 was causative in the development of his mesothelioma. I am fortified in my view by the failure of BIC to tender any countervailing evidence on this point.

There is another level at which the causation level was addressed by Professor Henderson and that is that Professor Rowley's exposure was in excess of 5 mppcf.

Professor Henderson's expertise to give such evidence was challenged and a line of cross-examination was undertaken to the effect that to express a scientific opinion on what levels of asbestos were in the atmosphere, one needs to have particular information or make particular assumptions. As to the latter point, I have dealt with that substantially in paragraph 140. The challenge to the effect that he should have taken into account the possibility that cement was mixed with the asbestos dust did not take full account of Professor Henderson's opinion where he commented on that in his report of 3 October 2006. Distance from the source and wind conditions were irrelevant in circumstances where Professor Rowley was standing in visible dust at all times.

Further, I do not accept the attack on the basis that in order to express a scientific opinion in the context of spraying, it would be necessary to have read every single available paper which had reported results of spraying. There was no limit to the suggestion in the question and Professor Henderson, quite rightly in my view, rejected it and explained why.

Following up that suggestion, Professor Henderson was then referred to a report by Allan Bell with which he was not familiar. His expertise was not then attacked on the basis that he should have been familiar with it. He was asked whether he ought to take the Bell figures into account. Professor Henderson, not unnaturally, said that if he had a copy of the paper, he would review it and see whether or not the figures were credible. The cross-examination then moved to another matter. The Bell figures were not put to Professor Henderson and he was not asked to consider whether they might affect his expressed views. Nor was he asked whether it was a paper he ought to have taken into account.

I do not believe it is correct to suggest that Professor Henderson's expertise, in terms of being qualified to give opinion evidence, is limited to what he sees and interprets on human tissue as a pathologist or on what causes the disease. His extensive experience, publications and other matters of expertise are an indicator of the extensive reading he must have undertaken and learning he has undergone. With his sub-specialty in mesothelioma, plainly he has acquired considerable knowledge as to its cause. His expertise is not limited to opining simply that asbestos was the cause. His knowledge and expertise has extended to the extent to which a person needs to be exposed to contract mesothelioma. That extent to which a person needs to be exposed has also been the subject of learning by him in the sense of being able to determine when a particular atmosphere is potentially dangerous. That covers a learning, knowledge and understanding of what processes give off particular concentrations of asbestos dust.

I do not propose to add further to an already lengthy judgment by elaborating on Professor Henderson's experience and qualifications. His qualifications are extensive. I simply note that his experience at a practical level is extensive, he has held numerous appointments, he has undertaken numerous speaking engagements, including at international conferences and his publications are numerous. He has a long-standing interest in asbestos related diseases with a major sub-specialty interest in mesothelioma.

• that visible dust indicates a concentration in excess of 5 mppcf (Exhibit CX 83, T.15.36);

• that spraying gives off a very high concentration of asbestos dust and fibre in the atmosphere;

• that wherever he was on the floor when the spraying was being done, Professor Rowley was, in the circumstances described, exposed to very high levels of dust and almost certainly well in excess of 5 mppcf.

I accept Professor Henderson's opinions on these matters.

155. Medical causation having been established, I am satisfied that causation in law is also established. This is because had BIC taken one or more of the steps I have suggested in paragraph 135, it would have been effective to prevent Professor Rowley contracting mesothelioma. In saying this, I accept that had he been warned he would not have entered the area. This is supported by his enquiry as to whether it was safe to be there and the assurance that it was.

The University is entitled to a contribution from BIC

156. The South Australian legislation, section 25 of the Wrongs Act 1936 (SA), relevantly provides:

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise…

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

157. It is acknowledged that the University is a tortfeasor within the meaning of the section. There was a suggestion that this acknowledgment may have been simply on the basis that there being a judgment against it by consent that conclusion is inevitable. If, by that, it was intended to make an issue of this matter for the purpose of considering the extent of the contribution that should be allowed I would find, in any event, that the University was a tortfeasor. I do not need to express any reasons for that. Enough has been written as to why BIC is a tortfeasor. The University, being Professor Rowley's employer, is in no better position than BIC.

158. That brings me to a weighting of the matters to assess an appropriate contribution. This is a relatively simple task within a fairly narrow compass. The causal potency of each tortfeasor's negligence is the same in the medical sense. In the legal sense, any difference there can be dealt with under the category of relative blameworthiness. So far as relative blameworthiness is concerned, I consider the following matters to be relevant:

· BIC had full available knowledge of the dangers of asbestos in 1961. The University did not. Why it did not mystifies me. What was it teaching its medical, engineering and architectural students in 1961? I would have thought a University with a medical school in 1961 would have been teaching its students about mesothelioma and about the Wagner paper. The University's failing on this point is so far from acceptable standards in my view that it should not benefit from its ignorance;

· BIC was conducting the spraying. The University was not;

· BIC could have taken simple steps to protect Professor Rowley; so too could the University. It could have informed him what was happening and instructed and warned him to stay out of the area. It gets worse from the University's position because it assured Professor Rowley, wrongly, that the area was safe.

159. I do not think that the fact that asbestos was specified in the contract is a matter that weighs either way. It was a requirement of a third party, a government body, and if it was thought to be inappropriate, either party could have dealt with it.

160. BIC argues that one matter that is relevant to a higher causal contribution being allocated to the University is that it was negligent, not only with respect to the spraying exposure, but also with respect to later exposure. I do not accept that the University's concession as to judgment means that it was negligent in respect of all exposures, nor indeed that there was any exposure after the spraying exposure. The spraying exposure is sufficient, of itself, to explain the concession as to judgment. Further, in the facts as I have found them, though there was opportunity for later exposure, the evidence does not establish it.

161. Considering these matters I think a fair contribution that the University is entitled to is 35%. In due course, I propose entering a verdict and judgment for the University in a sum representing 35% of Professor Rowley's judgment sum of $250,000, plus 35% of his costs of proceeding against the University to the extent that the University can establish these costs. I need to turn to that issue.

162. There is a question as to whether the University is entitled to a contribution to the costs it was required to pay to Professor Rowley. In principle, it is but the issue here is whether those costs have been proven. There is no doubt that the University paid $120,000 on account of Professor Rowley's costs in bringing the action. Mr Parker SC argues that the University has not proven those costs in the proper way. There was not an assessment by an assessor and nor was there expert evidence as to the costs. Mr Neil QC argues that the costs have been paid and that they have been paid on advice to the University given by a practitioner experienced in practice in this Tribunal and that I should accept that as reasonable.

163. I am required to find a contribution that is just and equitable. I do not consider I can do that if I leave the costs component out altogether. It seems to me that the parties did not entirely meet on this point. Mr Neil QC submitted that the costs of $120,000 were reasonable. An experienced solicitor, like Mr Cooper, would not have advised on their payment if they were not. Mr Parker SC submitted it had nothing to do with reasonableness and everything to do with the University being required to prove its entitlement, in effect, as a head of damage. The University, not meeting Mr Parker's reasonableness point, submitted I could reach my own conclusion as to what was reasonable. I was minded to go along with that at one point and then wondered about my power to do so. When I checked section 98 of the Civil Procedure Act 2005, I doubted my power. At first glance, that section seems to give me power to assess costs as between parties to litigation before me. I am being asked to assess costs between other parties. I do not know if that is a correct interpretation of section 98. It was not argued. I am not sure if there is any other basis for a power for me to make an assessment. If I had the power, I would be inclined to make an assessment to do justice between the parties. As the matter has not been argued, I propose to grant the University liberty to apply. As presently minded, that would be to present argument about any power or to call evidence on the point or both.

164. The order I make at this stage is that I grant the University liberty to apply in respect of the costs component of its cross-claim. Application in respect thereof should be made by filing a notice of motion with any supporting affidavit by 20 April 2007. I list the matter for directions on 20 April 2007.

Messrs M J Neil RFD QC and J C Sheller, instructed by Thompson Cooper appeared for the cross claimant.

Mr T G R Parker SC instructed by Makinson & d'Apice appeared for the cross defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

180 It may be seen that the general acceptance test is to be applied. It was, of course, necessary to consider what is the relevant subject matter. If, in this case, it is the DNA analysis by PCR STR fluorescent technology using electrophoresis technology, that subject matter has been widely and routinely accepted in the Courts in this country and overseas as accurate and reliable for some years. If it was DNA analysis by multiplex technology that subject matter has also been widely accepted by the Courts for many years. If it was multiplex technology with inspection by the 310, 373A or 377 sequencer and Genescan software, that subject matter has also been accepted as accurate and reliable by the Courts. In my view, the subject matter must be that DNA analysis by use of the Profiler Plus system which incorporates all of those features of technology but has the essential differences which have been described, namely the inspection of different loci using different primers at the amplification stage and the use of the Genotyper software.

181 So, the question is: has the Profiler Plus been accepted by the relevant scientific community as reliable and accurate for DNA analysis for the purpose of human identification? If that question is to be answered in the affirmative, there is a further question which is whether, as the Defence contends, the Profiler Plus should have been so accepted? If that question is answered in the affirmative, the remaining question at this stage of considering general acceptance is whether the Profiler Plus system has been accepted as reliable and accurate for analysis of unknown but low levels of DNA?

182 It was, of course, necessary to determine what is the relevant scientific community. It is obviously the scientific community which undertakes DNA analysis for the purpose of human identification, namely the forensic science community. According to Mr Pearman, Profiler Plus is used in medical science but there is no evidence placed before me as to the extent of that use. For present purposes, I thought that the relevant scientific community was the forensic science community in the context of human identification.

183 It was submitted by the Defence that the Profiler Plus system is a new or unfamiliar technique or technology and consequently the Court must be satisfied that it has "a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence": Bonython at p47. I did not think Profiler Plus is either new or unfamiliar technology except in the limited sense which I have mentioned.

184 In my view, it was established that there is a sufficient basis to accept that the use of Profiler Plus is part of the relevant field of knowledge. The forensic science community has developed and uses Profiler Plus. It has not only developed the various stages of DNA technology, it uses the technology on a daily basis and it has developed guidelines, standards and safeguards for its use. I include the commercial developers and manufacturers, such as Perkin Elmer, in this community. The practitioners are concerned with DNA analysis, including in difficult circumstances.

185 It is not necessary that there be universal acceptance. In R v Runjanjic; R v Kontinnen King CJ cited, with approval, the following passage of the judgment of Bernstein J in People (New York) v Torres:

"Upon careful reflection and analysis, however, it is the opinion of this Court that the theory underlying the battered woman's syndrome has indeed passed beyond the experimental stage and gained a substantial enough scientific acceptance to warrant admissibility. According to Dr Blackman, numerous articles and books have been published about the battered woman's syndrome; and recent findings of researchers in the field have confirmed its presence and thereby indicated that the scientific community accepts its underlying premises."

It may be seen that a "substantial enough" acceptance is sufficient. Non-acceptance by some in the relevant community would not render the subject matter inadmissible. In Gilmore, Street CJ accepted the observation of the United States Court of Appeals, 4th Circuit in United States v Baller (1975) 519 Fed 2d 463 at 466-467:

"Absolute certainty of result or unanimity of scientific opinion is not required for admissibility. 'Every useful new development must have its first day in court. And Court records are full of the conflicting opinions of doctors, engineers and accountants to name just a few of the legions of expert witnesses'."

Street CJ also accepted that the science does not have to be one hundred percent accurate if it has developed to the point where it can properly and responsibly be used as an aid in the resolution of contents of identity. He went on to say at p941:

"To recognise however, a degree of risk of inaccuracy and to recognise a need for caution in the use of the evidence, is far from treating the evidence as inadmissible."

In People v Castro 545 NYS 2d 985 (Sup 1989), a leading case in the United States of America on the admissibility of DNA identification evidence, Sheindlin J of the Supreme Court of the State of New York in Bronx County said at pp986-987:

"The Court of Appeals has explained the Frye standard as follows: 'the test is not whether a particular procedure is unanimously endorsed by the scientific community, but whether it is generally acceptable and reliable', People v Middleton 54 NY 2d at 49."

186 The question of general acceptance should be considered on the basis accepted in these cases. Having heard all of the evidence I reached conclusions as to what evidence was acceptable about these matters. I considered the decisions in other jurisdictions and what was revealed by the proven scientific publications? I heard a vast amount of evidence from Mr Pearman, mainly in cross-examination, Dr Davis and Dr Atchison which was relevant to whether the Profiler Plus system should be accepted by the relevant scientific community as producing accurate and reliable results and as to whether it does so in the hands of the Forensic Science Centre, but neither Dr Davis nor Dr Atchison appeared to challenge that the forensic science community, or a substantial part of it, had, in fact, accepted it as accurate and reliable and was using it extensively for criminal casework and for other serious purposes. Their position, as I understood it, was that it should not be so accepted. The effect of Mr Pearman's evidence is that it is generally so accepted by the forensic science community and that he regards it as accurate and reliable. I accept Mr Pearman's evidence.

187 Before expressing my reasons for reaching that conclusion, I return to the matters raised in Williams on the issue of reliability.

188 The evidence does not disclose that there is a considerable number of members of the relevant scientific community lining up on each side in favour or against acceptance of Profiler Plus. It seems clear that the vast preponderance of opinion is that it is accurate and reliable. If there was a "nose count", it would substantially, if not completely, indicate reliability. The relevant scientific community has reported widely as to the reliability of Profiler Plus indicating that there is no relevant error rate. Errors occur in the application of the system and are monitored by controls, protocols and procedures. The considerable training and experience of the scientists which operate the system substantially removes error. The error is not in the system or technology but in its use and is in the nature of human error. The evidence establishes that maintenance standards exist and are applied as may be seen in manuals and protocols admitted into evidence. Perkin Elmer provides maintenance and servicing facilities of the instrument. There is no basis in the evidence to suggest that the system lends itself to abuse. It must be operated by well trained scientists who are undertaking serious work all of which is checked and reviewed. Tests are repeated and analysed by more than one scientist and in that sense the system is as "fail safe" as is the case with any scientific procedure with human involvement.

189 Last, I mention the suggestion of bias by forensic scientists. I did not regard that as a matter of significance in view of the widespread acceptance of Profiler Plus in many parts of the world. I did not accept that if the system was unreliable, not one forensic scientist would say so and report accordingly.

190 It may be seen that whilst the tests in Williams and Daubert for admissibility do not apply, compliance with them could be established.

191 In this country forensic science laboratories have been established in all of the States and in the Northern Territory and the Australian Capital Territory and they undertake, inter alia, DNA analysis for the purpose of human identification in criminal casework.

192 Until 1997 not all forensic science laboratories in Australia were using fluorescence technology. Some laboratories, although using fluorescent technology, were using other technology and inspecting different loci. Most of the laboratories were using Perkin Elmer products and instruments such as the 373 or the 377 and the Genescan software. These scientists were familiar with the Perkin Elmer systems. There had been discussions about a common database. If that was to happen and for the database to be effective, it was necessary that all laboratories used the same loci.

193 The decision was made in October 1997 at a meeting of SAG to recommend the use of Profiler Plus in the Australian laboratories. Those participating in that part of the meeting and making the decision were forensic scientists specialising in DNA analysis who were managers of the laboratories. Mr Pearman was present and participated in making the decision. The meeting was also attended by representatives of forensic science laboratories in New Zealand, Singapore and Hong Kong, some of whom attended as observers. Two representatives of the Perkin Elmer Corporation, Ms Shepherd, the product manager for Australia, and Ms Fildes, the world-wide product manager for human identification, and Dr Werrett, the manager of the Forensic Science Service in the United Kingdom, also attended. It will be remembered that the Forensic Science Service had developed a quadruplex and the SGM. I accepted the evidence of Mr Pearman about this meeting. A presentation was made to the meeting by Ms Fildes who was involved in the development of the Profiler Plus system. She discussed validation. She and Ms Shepherd discussed with the scientists studies recommended by TWGDAM and matters relevant to the operation and reliability of the Profiler Plus system. It is unnecessary to set out all of the matters discussed at this meeting. This group of scientists received a detailed presentation about the nature of the system and problems which could arise and which required expert consideration.

194 I accepted that the members of SAG at this meeting were all well qualified forensic scientists working in the field of human DNA analysis for forensic purposes and made their recommendation for the use of the Profiler Plus system after receiving appropriate and detailed information as to its capabilities. I regard them as members of the relevant scientific community when addressing issues of admissibility of expert evidence. The recommendation of SAG was implemented by all of the forensic science laboratories in Australia.

195 Since the Forensic Science Centre acquired the Profiler Plus system in February 1999, it has been used extensively for casework. In the financial year ending 30th June 2000, the Centre has analysed about 5000 profiles, including repeats and controls, which represent about 750 cases. Prior to that period, the Forensic Science Centre undertook about another 200-250 cases.

196 I received evidence in the form of letters from most of the forensic science laboratories in Australia as to their use of Profiler Plus, the associated instruments used by them and their reporting criteria despite the objection of Mr Wells who contended that such evidence was inadmissible as hearsay. The contrary argument is that this evidence, or most of it, is part of the body of knowledge of forensic scientists in this country and Mr Pearman could testify as to that body of knowledge even if his means of knowledge was what he had been told by others. It was not possible to resolve this dispute without considering each piece of evidence which the Crown sought to lead in order to determine if it fell within the body of knowledge of forensic scientists in this country and if not, whether it if offended the hearsay rule. The issue is perhaps accurately described by Richardson J in Holt v Auckland City Council [1980] 2 NZLR 124 at 127:

"It is true that expert evidence, founded as it is on study and experience, necessarily involves the acceptance by the expert of the researches of others. In that sense his expertise and so his opinions are based to a significant extent on hearsay information. The expert rightly draws on the work of others in the same field. But he is no more entitled than any non-expert to give evidence relating to other fields of expertise of which he has no first hand knowledge."

I thought that the reporting levels and standards of other laboratories is not some other field of expertise, but part of the relevant body of knowledge. The distinction between an expert relying upon information obtained from reputable scientific publications and writings and professional colleagues and giving evidence about matters of fact not relating to expert opinion was discussed and drawn by Megarry J in English Exporters (London) Ltd v Eldenwall Ltd [1973] 1 All ER 726 at pp730-731. As to the latter type of matter, an expert is in the same position as any other witness and may not give hearsay evidence about matters of fact. The letters themselves containing the information were prepared not for use in the forensic scientific community, but for the purpose of this case, but that is a matter relating to the manner of giving evidence not as admissibility.

197 The contents of the letters were relevant to facts in issue and the evidence could have been given by the laboratory managers in the witness box, but only at considerable and, in my view, unnecessary expense to the Crown. I resolved the matter by ensuring that the authors of the letters were willing to provide information to the defence. I adjourned the tender for nearly two weeks to enable the defence to speak to the authors. No relevant prejudice was, or could have been, caused to the defence and I then admitted the letters as evidence of the truth of their contents pursuant to s59J of the Evidence Act 1929 which provides that a court may dispense with the rules of evidence for proving any matter that is not genuinely in dispute or where compliance with the rules of evidence might involve unreasonable expense or delay.

198 This recommendation to use Profiler Plus was implemented by all of the forensic science laboratories in Australia routinely involved in DNA analysis for human identification for criminal casework. The Profiler Plus system has been used routinely in casework by the Australian Federal Police Forensic Biology Laboratory in the Australian Capital Territory since January 1999. The instrument used is the 310. In New South Wales the Division of Analytical Laboratories of the Institute of Clinical Pathology and Medical Research commenced using the Profiler Plus system for casework in criminal cases in late 1998 with the 377. In the Northern Territory the Forensic Services Section of the Northern Territory Police has used the Profiler Plus system with the 310 for routine research and criminal casework since March 1998. In Queensland, the John Tong Centre for Forensic Sciences has used the Profiler Plus with the 377 since March 1998. In Victoria, the Victorian Forensic Science Centre has used the Profiler Plus and both the 310 and 377 since 1st July 1998. This evidence did not establish whether this laboratory uses the Profiler Plus for criminal casework but other evidence from Mr Pearman and Dr Atchison established that such is the case. The Western Australian Centre for Pathology and Medical Research has used the Profiler Plus system with the 310 for about two years and, presumably, for criminal casework. The Forensic Science Service in Tasmania has used the Profiler Plus system with the 310 in all forensic casework since August 1998.

199 SAG meetings of forensic scientists working in DNA analysis were held in 1998 and 1999. At each of those meetings the experience of each laboratory with the Profiler Plus system was discussed. Representatives of the Perkin Elmer Corporation were present to provide information and answer any queries. Mr Pearman attended all of those meetings. The evidence establishes that there were no disclosures at these meetings indicating other than that the Profiler Plus was accurate and reliable and was being used extensively for case work.

200 It may be seen from this evidence that there has been general acceptance of the Profiler Plus system by the forensic science community in Australia for DNA analysis for the purpose of human identification for forensic purposes, including criminal casework, and I made that finding accordingly.

201 I now mention the evidence of the acceptance and use of the Profiler Plus system by the forensic science community overseas.

202 Various documents, such as working protocols of laboratories and scientific publications admitted into evidence, establish wide use of the Profiler Plus system in the forensic context overseas.

203 It is used by the forensic science laboratory of the Royal Canadian Mounted Police for casework using the 377 at Ottawa, Ontario in Canada[30] and by the FBI forensic science laboratory in Quantico, Virginia in the United States of America. Both of these laboratories undertook validation of the system and published protocols for its use in DNA analysis which were introduced into evidence. It is also used by the Armed Forces DNA Identification Unit of the United States Army.

204 The Profiler Plus was used by the laboratory of the Royal Canadian Mounted Police for the purpose of human identification following the Swissair Flight 111 disaster in September 1998 using the 377[31].

205 Articles introduced into evidence establish that the Profiler Plus system using either or both the 310 and 377 is also used extensively by many other laboratories in the United States of America, Italy[32], Poland[33], Spain[34], Austria[35] and Portugal. It is also used in Germany by the Institute of Zoology and Anthropology at the University of Goetlingen for DNA profiling of ancient human remains. All of these laboratories reported the use of either, or both, of the 310 and the 377 and the software which has been mentioned. According to Dr Davis, it is used in the majority of the 97 laboratories which were the subject of a survey in the United States of America.

206 In 1998 the Bureau of Legal Dentistry in Vancouver, Canada, used the Profiler Plus with the 310 to analyse DNA extracted from saliva left in a bite mark on cheese at a crime scene which was used for forensic purposes and published the results[36].

207 The forensic science laboratory used Profiler Plus with the 310 to analyse DNA extracted from bone, muscle and bone marrow collected from rib bones taken from 12 individuals. Some of the bones had been buried and others were left on the ground surface. Results of these experiments were published[37] and the Profiler Plus system appeared to function accurately and reliably.

208 The Profiler Plus system is used with respect to each of the main racial groups, Caucasian, Asian and Indigenous. The use of the system with respect to the following groups of population is reported: African, American, Bahamians, Jamacians, Trinidadians, Spanish, Chinese, Vietnamese, Bangladesh, Swiss, Egyptian, North American, Australian, Portuguese, Hispanic, Brazilian, Japanese and certain Indigenous populations. Dr Mitchell, a population geneticist called by the accused, said that the Profiler Plus system is used in Japan and Taiwan and he thought in China, Hong Kong and Singapore.

209 It is significant, in my view, that there is not one scientific article introduced into evidence or referred to by any witness which disputes or challenges the reliability and accuracy of the Profiler Plus system.

210 I now turn to decisions of the Courts in this and other jurisdictions. In doing so, I appreciate that reference to other decisions is of only limited value because the decisions are made on the basis of the evidence given in each case.

211 Although DNA evidence is commonly admitted in Courts in this State, my attention was not drawn to any case where evidence of DNA profiling using the Profiler Plus has been rejected. It seems that if such evidence has been admitted, there was no challenge to admissibility.

212 Such evidence was admitted in R v Fitzherbert but it appears from the judgment of the Court of Criminal Appeal that the issue was not one of admissibility but of interpretation and probity and accuracy of the work of the scientist. In R v Rees (NSWSC 2000, unreported) Bell J of the Supreme Court of New south Wales held on 16th June 2000 that the results of DNA analysis using the Profiler Plus were admissible. She rejected the contention that DNA analysis by this method had not reached the stage where it was generally accepted as reliable, although it appears that in doing so she applied a test laid down by s79 of the Evidence Act 1995 (NSW). Her Honour's reasons are expressed relatively briefly and it seems that she may not have decided that the common law test of general acceptance did not apply. Also, it is clear from the judgment that the evidence relating to the challenge of admissibility did not occupy more than one day and so it may be accepted that Bell J did not have to consider a challenge with the vast volume of evidence and submissions as in the present case. I was not referred to any other case in Australia where admissibility of DNA analysis using the Profiler Plus was considered.

213 However, I was referred to a number of decisions of courts in the United States of America where this issue was considered. I propose to mention them only briefly.

214 There are two decisions rejecting admissibility of the results of DNA analysis by Profiler Plus in that country. The first is the decision of Judge Hale of the District Court of the County of Boulder in the State of Colorado in the People of Colorado v Shreck (CR 2475, Division 4, 2000 case, No. 98, unreported). He applied the general acceptance test established by Frye v United States having found that Profiler Plus was a novel scientific method. He held that the results obtained from the Profiler Plus were inadmissible as the Profiler Plus system could not be regarded as generally accepted because the primer sequences and the developmental validation studies by Perkin Elmer of the system had not been released for scrutiny by the relevant scientific community. He concluded that there had not been compliance with the TWGDAM guidelines. He said at pp19-20:

"Laboratories which choose to begin using such systems before appropriate validation has occurred, or systems which make adherence to TWGDAM difficult, as PE [Perkin Elmer] did by refusing to release its primer sequences and developmental data, must live with the possibility that their testing results may not be admissible in court."

Judge Hale also held that if the Supreme Court of Colorado should accept that the test for admissibility is as laid down in Daubert, the evidence would be inadmissible. I was informed that this decision is under appeal to the Superior Court of the State of Colorado.

215 The second decision is of Judge Kupersmith of the District Court of the State of Vermont in Grand Isle County, in the case of State of Vermont v Pfenning on 6th April 2000. The Judge held that the evidence of the DNA analysis using the Profiler Plus was inadmissible. He accepted that the Profiler Plus system was relatively new, but the technology and use of fluorescent tagged primers and STR loci was not new and are generally recognised as valid scientific techniques. However, he held that the Profiler Plus had not been examined and validated because Perkin Elmer had not disclosed the primer sequences they had created for the amplification of DNA. He found that the refusal to do so to be "anti-scientific" in that it inhibits the ability of scientists to test Perkin Elmer's claims. The Judge followed the decisions of the Supreme Court of Vermont in State v Streich 163 Vt 331 (1995) which had adopted the Daubert approach and he accepted that the general acceptance test had been replaced with "a flexible standard governed by two principles: reliability and relevance". He accepted the following as the test for admissibility at p3:

"(1) Whether the theory or technique involved is capable of being tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) the known or potential rate of error associated with the scientific technique; and

(4) whether the theory or technique has been generally accepted in the scientific community."

As has been seen, this is not the approach which is adopted in this country to the admissibility of evidence based upon new or unfamiliar technology, although I was satisfied on the evidence in the present case that all of these matters were established with respect to Profiler Plus. Judge Kupersmith went on to say, at p50, that:

"Regardless of whether the technique is generally accepted in the commercial forensic community or is widely used in building convicted offender databases, no appellate court has found that this system is validated for use in a criminal proceeding."

He held that the evidence of the DNA profile in that case was inadmissible because Profiler Plus had not yet been scientifically validated.

216 Of course, His Honour had to decide the case on the evidence before him and the relevant law in the State of Vermont by which he was bound.

217 I regard these decisions as being of little assistance with regard to the matters which I must resolve. I must follow the test of general acceptance. I have received a vast body of evidence to show not only general acceptance of the Profiler Plus as accurate and reliable, but also of validation of the system in this country and overseas, as has been discussed. Furthermore, there are cases in the United States of America in which it was held that the results of analysis using the Profiler Plus system are admissible. Those decided before Pfenning do not appear to have been brought to the attention of the Court in that case.

218 I now mention those cases to which I have been referred.

219 In The People of the State of California v Hackney (6th July 1999, unreported), Judge Park of the Superior Court of California for the County of Sacramento held that the results of DNA analysis using Profiler Plus were admissible. His reasons are brief and ex tempore and do not reveal the depth of analysis shown in judgments in other cases but that is not to say that his consideration of the matter lacked depth and critical analysis. He said at p4:

"So I am still of the same position I was last time. The literature that I have reviewed shows that the 310 machine itself along with the Profiler Plus typing kit are used widely throughout the entire world in clinical, forensic, and medical settings by physicians concerned with health care, by researchers, by professors and, indeed, by crime labs as well.

It appears to me that, therefore, that not only is STR DNA PCR testing generally accepted, but that the means in which the typing was done in this case through this equipment has also been generally accepted."

He applied the Frye test of general acceptance.

220 In The People of the State of California v Bertsch and Hronis (20th October 1999, unreported) Judge Connolly of the same Court in the same County also held that such evidence is admissible. He appears also to have given reasons ex tempore but more extensively than the reasons in Hackney. He held that in the absence of published information about the primer sequences, it could not be concluded that there had been strict compliance with all of the TWGDAM guidelines, but there had been internal and developmental validation of Profiler Plus, validation by Perkin Elmer and internal validation by the Department of Justice laboratory. The learned Judge held that the Daubert test for admissibility did not apply, presumably in the State of California upon the application of State law, and that it was the general acceptance test which he had to apply. Essentially the objection to admissibility was on the basis of failure to comply with TWGDAM guidelines in that the primer sequences had not been made available for scrutiny by the relevant scientific community and that there had not be developmental and internal validation according to those guidelines. The learned Judge concluded that the TWGDAM guidelines are only guidelines and not mandates. They are not a conditions precedent to be met before a court may find general acceptance but an absence of validation could be considered when evaluating general acceptance. He held that the evidence was admissible. He said:

"As the bottom line, the Court finds that the validation before it is extensive, both in the developmental context and the internal context as set forth by TWGDAM. This is particularly so when you consider that the validation is built upon previously general (sic) accepted science. One science stands on the shoulder of another, as indeed one advancement stands on the preceding advancement.

The Court concludes, therefore, that the validation before it is sufficient to show substantial compliance with TWGDAM."

He went on to say that when all of the evidence was considered including the forensic science publications, general acceptance had been established.

221 Judge Anderson of the District Court of the State of Minesota County of Hennepin in State of Minesota v Dishmon & Ors (3rd March 2000, unreported) held that because PCR STR DNA technology had been generally accepted in accordance with the Frye test, it was not necessary to establish general acceptance of the particular process, in that case the Profiler Plus using the 310, but he held that if that approach was incorrect, the evidence of witnesses and scientific publications did establish that the Profiler Plus and the 310 had nevertheless been generally accepted by the relevant scientific community. As to Perkin Elmer not publishing the primer sequences, Judge Anderson observed that the laboratory concerned in the case had validated the system as had other laboratories and went on to say at p15:

"The system simply has been shown to work, time after time, by lab after lab, with or without studies from PE Biosystems. The system is like a Model A Ford. Thousands of owners can tell us it works even if Henry Ford can't or won't explain it. The customers have thoroughly and scientifically validated this system."

222 Judge Ford of the Superior Court of the Commonwealth of Massachusetts in Commonwealth v Gaynor (13th April 2000, unreported) found that Profiler Plus with the 310 was used by many laboratories in the United States of America and that Perkin Elmer had not published the primer sequencers, with the consequence that the scientific community had not had the opportunity to validate the operation of the primers. Judge Ford accepted the reasoning of Judge Anderson in Dishmon. He found that the laboratory undertaking the test had done validation studies of Profiler Plus which had been produced in writing and presented at scientific meetings. In this case, it was also argued that most of the loci inspected by Profiler Plus had not been mapped on the human genome and so users of the system could not be certain that the genes which the kits detect are actually located on the designated chromosomes.

223 I expect that, as in the present case, the issue was not whether the loci were located on the designated chromosomes but whether they were located on the designated part of the particular chromosome. On the evidence before him, the learned Judge concluded that the loci inspected by the system had been selected by the scientists at the FBI, the Royal Canadian Mounted Police and other laboratories around the United States of America. The learned Judge concluded that the results of the analysis using Profiler Plus were admissible.

224 Judge Adams of the Superior Court of California in the County of Santa Barbara also considered the admissibility of evidence of DNA analysis undertaken on the Profiler Plus in The People of the State of California v Hill (18th April 2000, unreported). He ruled that the evidence was admissible. He applied the general acceptance test following the decision in People of the State of California v Kelly (1976) 17 Cal 3rd 24, which had accepted the Frye test.

225 In Hill the Court held that, upon the basis of the evidence given, DNA analysis by the Profiler Plus system is reliable and generally accepted as such in the relevant scientific community.

226 The most recent American case relating to the admissibility of evidence obtained using the Profiler Plus system is State of Florida v Yisrael, a decision of a Judge of the Circuit Court of 17th Judicial Circuit in and for Broward County, Florida on 8th August 2000. The name of the Judge does not appear in the report of the case made available to me. The Judge applied the Frye test of general acceptance of the relevance scientific community which, he said at p3, does not require "unanimity, consensus of opinion, nor even a majority among the scientific community". The Judge went on to say that general acceptance does not require even "substantial authority but may exist where the methodology is accepted in a reasonable, inconclusive manner". He held that the Profiler Plus using the 310 had gained general acceptance by the relevant scientific community. The evidence before the Judge was that Profiler Plus is the most widely used kit and that it was used by over 100 laboratories in the United States of America. Furthermore, the evidence disclosed that the laboratory which had undertaken the tests had undertaken sufficient internal validation of the Profiler Plus and the 310 to ensure accuracy of testing, and that both had been subjected to adequate peer review. The Judge had regard to scientific publications for that purpose.

227 Whilst the evidence given in those cases cannot be regarded as evidence in the present case, it does permit an appreciation of the basis for those decisions. That evidence is similar to the evidence in the present case and so there is no basis for distinguishing any of these decisions for factual reasons.

228 The preponderance of authority in the United States of America, when the general acceptance test is used, supports the proposition that the Profiler Plus system has been generally accepted by the relevant scientific community as accurate and reliable.

229 The evidence in the present case was clear and, in my view, overwhelming. Whilst the Profiler Plus system is relatively new, it utilizes familiar technology for amplification and inspection of STR loci which technology is widely, almost universally, accepted in the relevant scientific community as reliable and accurate. The variations fundamental to the Profiler Plus system, namely the particular loci and the number of them, the new primer sequences if they are new, and the use of Genotyper, have clearly been shown to have been accepted by the relevant scientific community as accurate and reliable.

230 As has been mentioned when discussing the history of the development of STR fluorescence technology, the primer sequences for the various loci have been published widely and are well known to the forensic science community. I accepted, as will be seen, that there have been modifications to the primer sequences by Perkin Elmer during the developmental stage which have not been published. However, the failure to do so has not been an obstacle to general acceptance by the forensic science community of Profiler Plus with Genotyper as an accurate and reliable system of DNA analysis for the purpose of human identification.

231 Before turning to the next issue which is whether the relevant scientific community should have accepted the Profiler Plus system as accurate and reliable for the purposes of human identification, it is necessary to set out my findings about the expertise and credibility of the witnesses, Mr Pearman, Dr Davis and Dr Atchison as the basis of the defence case on this issue depended upon acceptance of the evidence of Dr Davis and Dr Atchison and rejection of evidence of Mr Pearman.

232 In view of the attack upon the expertise and competence of Mr Pearman and the scientists at the Forensic Science Centre based upon the evidence of Dr Davis and Dr Atchison, it is necessary to consider, in some detail, much more than usually would be the case, the training, knowledge, qualifications and experience not only of the persons subject to the attack but also of those who make it.

233 Mr Pearman has been the manager of the Biology Section of the Forensic Science Centre since October 1998 and had acted in that position for the eighteen months prior to that time.

234 He was awarded a Batchelor of Science degree majoring in Botany and Zoology by the University of Adelaide in 1978. Subjects undertaken by him included genetics and statistics. In 1994 he completed a third year undergraduate subject entitled "DNA: Its Properties, Function and Manipulation" at Flinders University. This course was assessed by written examination and he was awarded a high distinction and the highest mark in the course. It is appropriate to mention aspects of this course in a little detail. The course involved about 40 lectures and ten tutorials and covered several aspects of DNA and DNA technology including the chemistry and structure of DNA, how it interacts with other molecules and chemicals and the enzymes which act upon it. It covered different types of DNA, the theory of PCR and various parts of the PCR process, the construction of chromosomes, repetitive DNA sequences and how to read the relevant scientific literature critically and to keep abreast of developments and new ideas in molecular biology.

235 During the period from 1978 until 1985, he worked as a botanist with the South Australia Police and joined the Forensic Science Centre, as it is now called, when it was established in 1985. Thereafter he worked as a forensic scientist with the Biology Section. In that role he undertook work in cases of alleged sexual assault and homicide. He became a senior forensic scientist about 1990. During this period he was involved in about 500 criminal cases. He then undertook a training course in DNA analysis which was provided by the Forensic Science Centre commencing in October 1993 and ending in late 1994. He commenced reporting on DNA analysis in criminal cases in October 1994. Also he has undertaken parentage testing by blood analysis and later by DNA analysis.

236 The internal training at the Forensic Science Centre was varied and extensive. For three months Mr Pearman worked as a technical officer in the laboratory undertaking extraction of DNA, running samples through the systems then being used and all bench work. His work was supervised by senior molecular biology staff. After completing the course work at Flinders University, he worked alongside a senior scientist for three or four months and was involved in the reading of general results and analyses and interpretation. He then participated in an internal competency test which involved the analysis of stains. Upon completion of this training, Pearman began reporting on criminal casework cases where DNA testing had been undertaken.

237 I have mentioned the practice in the Forensic Science Centre for the interpretation of electropherograms which is undertaken by two scientists experienced in DNA analysis and by a third scientist who makes the report. Mr Pearman estimated that since he commenced reporting results he has read analyses in about three to five other cases each week and has reported about 200 cases in Court. He has undertaken and passed at least one external proficiency test each year. Mention has already been made as to the NATA standards regarding DNA analysts and scientific publications referring to the crucial role of the analyst. Mr Pearman is suitably qualified in accordance with those standards and on a continuing basis.

238 Since Mr Pearman became manager of the Biology Section at the Forensic Science Centre, he has been responsible for quality control, ensuring that the accreditation criteria have been met, the supervision or overseeing of the training of new staff, and research and development undertaken by the Section and ensuring that manuals are kept up to date.

239 There are now about 12 persons working in the section including technical officers and forensic scientists. All but one has a university degree and some have high degrees, including a masters degree or a doctorate in philosophy and all have had practical training and experience.

240 As Mr Pearman is the manager of the Biology Section of the Forensic Science Centre, it is appropriate to consider the evidence about the proficiency of the Forensic Science Centre in that section as it reflects upon his expertise and competence.

241 The American Society of Crime Laboratory Directors ("ASCLD") undertakes accreditation of forensic science laboratories. In 1990 it awarded accreditation to the Forensic Science Centre for a period of five years. In brief terms, this accreditation process begins with written criteria which must be met. Protocols for operation of a laboratory are established. Inspectors of ASCLD check all aspects of laboratory work, organisation and security. Cases, procedures, equipment and staff are assessed and procedures and techniques are evaluated.

242 In Australia accreditation of forensic science laboratories has since been undertaken by the NATA. Earlier in the late 1980's, it had undertaken the responsibility of accrediting laboratories for paternity testing pursuant to the Family Law Act 1975 (Cth). Both the Forensic Science Centre and Mr Pearman received accreditation for that purpose at about that time. NATA offered accreditation for a wide range of testing authorities, including medical laboratories and engineering companies. In 1995 it became involved in the accreditation of forensic science laboratories and published standards to be met for that purpose. It was not until January 1999 that NATA published additional standards for laboratories undertaking DNA analysis, but nevertheless it carried out accreditation of such laboratories undertaking DNA analysis, including the Forensic Science Centre.

243 In July 1995 NATA and ASCLD jointly undertook accreditation of the Forensic Science Centre, including for DNA analysis. The Centre was inspected by four inspectors and a representative of NATA over a period of five days. The parts of their report relating to DNA analysis were admitted into evidence. The inspectors raised only a few matters in the DNA context which required attention and they were resolved. They reported:

"State Forensic Science provides an excellent forensic science service. It is staffed by well qualified, highly professional scientific, technical and administrative personnel."

They recommended accreditation in all areas, the subject of their enquiry, including DNA analysis, once the matters were resolved. Formal accreditation was granted on 22nd April 1996. The accreditation for DNA profiling included the PCR method. Also admitted into evidence was the Laboratory Assessment Checklist for forensic science laboratories which indicates that the accreditation process involves detailed and careful inspection and assessment.

244 In September 1998 NATA again assessed the Forensic Science Centre over a period of five days. The inspectors reported that the Centre complied with all accreditation criteria. They reported:

"Overall this laboratory was found to maintain a high standard of operation. It is staffed by well qualified, competent and enthusiastic personnel."

However, they did raise some matters which required attention which are not relevant for present purposes and were apparently resolved as the Centre was informed on 8th December 1998 that accreditation was continued. I accept that the accreditation process at each stage was undertaken critically, competently and thoroughly by suitably qualified and experienced experts.

245 The accreditation of the Forensic Science Centre and how it was undertaken is significant. As has been mentioned, it reflects upon the expertise and competence of Mr Pearman. His work has been reviewed by NATA. He and the Centre have been regarded well by the NATA inspectors. This is a piece of evidence to be considered when assessing Mr Pearman and his expertise and competence.

246 As has also been mentioned, Mr Pearman has been the representative of the Forensic Science Centre at SAG. He first attended a meeting in 1995 and then regularly since 1997. In the course of his involvement with SAG, he has discussed issues involving DNA analyses with other members and received reports from that Group.

247 Mr Pearman is also an inspector for NATA for the purpose of accreditation of the molecular biology sections in the laboratories. He was involved in two inspections before being appointed by NATA and one since which was a parentage testing laboratory.

248 The Forensic Science Centre is available to both the prosecution and the defence in criminal cases. It has what Mr Pearman described as an "open door policy". Work is accepted from persons interstate. Pearman is involved in the undertaking of some of this work and thereby has the opportunity of evaluating the work of other forensic scientists. Also, he participates in the training of forensic scientists from overseas. Scientists from countries with emerging technology, such as in parts of South East Asia, send forensic scientists to Flinders University in order to upgrade their qualifications. Those courses require attachment to the Forensic Science Centre for practical experience in aspects of forensic DNA work.

249 As might be expected of any forensic scientist undertaking serious work, Mr Pearman reads the relevant literature emanating from the forensic science community in this country and overseas. He had read the various articles and publications admitted into evidence and I accept the effect of his evidence that they and their contents form part of the body of knowledge of the forensic science community. I am satisfied that Pearman has kept himself informed about developments in DNA technology and the use of the various systems in the forensic scientific community. In addition Mr Pearman has regular contact with other forensic scientists in Australia through SAG meetings and otherwise and he has contact with several other forensic scientists overseas at laboratories in the United Kingdom, the Royal Canadian Mounted Police, the Armed Forces Laboratory in the United States of America and the forensic science laboratory in New Zealand. He has written a chapter published in the book Expert Evidence by Freckleton and Selby which chapter was peer reviewed by two scientists prior to publication and includes sections on DNA analysis and interpretation. He also gave evidence, which I accept, of attendance at conferences, workshops and symposia which included sessions on DNA analysis and interpretation conducted by forensic scientists and has presented various posters and presentations at conferences on topics related to DNA including the Profiler Plus system.

250 Having regard to the evidence of Pearman's education, training and experience, including his extensive hands-on work in DNA analysis, including in PCR and STR fluorescence technology over many years, I had no hesitation in accepting him as a suitably qualified expert to give evidence as to matters in issue on the voir dire. However, there was a further matter to be considered.

251 The nature of the case advanced by the Defence on the voir dire resulted in Pearman being extensively cross-examined in great detail about a wide range of matters relating to DNA analysis in general and by the Profiler Plus system in particular, laboratory and validation procedures. I found his evidence to be informative and displaying considerable knowledge about the matters he had to address. Also, the manner in which he gave his evidence showed balance and restraint which may be expected from an appropriately qualified and independent expert. He made concessions when appropriate regardless of their impact on the prosecution case and despite the nature and length of the cross-examination and the additional burden of having to find documents and information requested by the Defence, sometimes on short notice, he retained his composure and displayed a genuine desire to assist the Court. These matters confirmed my view of him which I have expressed.

252 Later in these reasons I mention the attack on Mr Pearman's expertise based upon the operation of the Quadruplex and the Profiler Plus systems at the Forensic Science Centre. I had regard to the evidence addressed on those matters, including from witnesses called by the Defence but, as will be seen, that evidence and submissions based upon it, did not alter my opinion of Pearman.

253 Lastly I mention my conclusions about his credibility. I found him to be an honest, reliable and accurate witness who never over-reached his expertise or memory when giving evidence.

254 Dr Davis is a medical scientist by training and the scientific director at Lexigen Science and Law Consultants Incorporated ("Lexigen") at San Francisco in the United States of America. She was called by the accused to give expert evidence about various matters in issue, including whether Profiler Plus has been accepted by the scientific community as accurate and reliable for DNA profiling, whether it should be so accepted, whether it is accurate and reliable for that purpose and whether it was used competently by the Forensic Science Centre. Her expertise to express various important opinions was disputed by the Crown and so it was necessary to reach a conclusion about whether she was qualified to express opinions after having identified the relevant subject matter.

255 As will be seen, the objection by the Crown was not made frivolously. It soon became apparent that there was a real issue about the capacity of Dr Davis to express opinions about many important matters.

256 She has never worked as a practicing forensic scientist. As will be seen, she worked for some years as a medical scientist, but seldom with human DNA. She has never used STR fluorescence technology. She has never used any of the systems of fluorescence technology for DNA analysis, including Quadruplex and Profiler Plus.

257 There are occasions when it is necessary to hear all of the evidence, including of the opinions of a witness, at a voir dire in order to determine if a witness is truly an expert and not someone with some, but inadequate, knowledge who is posing as an expert, even unintentionally. This was such a case and I ruled that I would hear all of her evidence before ruling on the objection taken by Ms Abraham.

258 In 1978 Dr Davis was awarded a Bachelor of Science degree by the Virginia Commonwealth University in the United States of America. She majored in biology which included the study of statistics, biochemistry, plant genetics and microbiology with some study of DNA and graduated with a high point average. After a year of study at College, she was accepted into the Medical College of Pennsylvania and was awarded a Doctorate of Philosophy in 1984. During the first two years at the College she worked as a research assistant in DNA systems which involved work as a laboratory assistant to an academic who was working on the herpes virus. She claimed to have acquired from this work knowledge about laboratory techniques, isolating a virus, isolating DNA from the virus and setting up cloning systems for particular areas of DNA. At this time she also made a study of restriction enzyme technology which involved, inter alia, using a restriction enzyme to cut up a piece of DNA at specific places. This technique enabled the many copies of the DNA fragment to be produced.

259 Dr Davis also held a position as clinical laboratory technical assistant. She undertook bacterial sensitivity studies for antibiotics in connection with human blood and other specimens and assisted in the identification of particular viruses. During the course of this work she became familiar with recognised laboratory methods and protocols. I heard a good deal of evidence from Dr Davis about the purpose and significance of laboratory protocols which I need not now mention. I accept that protocols are essential and must be followed to achieve reliable results.

260 During the first part of her doctorate programme she undertook study in Medicine in the microbiology and immunology section of the College. Her particular field of study was defining the genetic family of proteins as to their specific cellular activity, molecular weight and size to determine the size of a protein and its biological activity. She undertook study of aspects of DNA, including viral molecular biology, bacterial genetics, DNA structure and function, cellular genetics on an immunological system and DNA structure and function for human cellular DNA. According to Dr Davis she also undertook courses in radiation biology because at that time the detection of DNA was primarily by radioactivity. She also undertook a further course in statistics which focussed on scientific statistics.. During the course of her research work she did not work with human DNA.

261 Whilst undertaking her study for the higher degree, she had a teaching role within the Medical College in microbiology and immunology including preparation of samples for testing and laboratory techniques and handling. The work for the higher degree involved laboratory work during the course of which she said she designed, developed and produced protocols. According to Dr Davis, the PCR technology had not been developed at this time and she used cloning methodology in order to make copies of DNA. It is unnecessary to describe this process for present purposes although it was described by Dr Davis in some detail. It involved the separation of different types of DNA using a gel. Much of her work involved viruses, particularly the herpes virus.

262 Also, it involved the sequencing of DNA to obtain copies. It was necessary to use a primer in order to "tag" the four bases. She said that she derived these primers which were radioactive but otherwise similar to the STR primers which have been mentioned earlier. They attached to one of the bases, were detected by a Geiger counter and inspected by a manual method using an x-ray film.

263 The work of Dr Davis for her higher degree involved working with a particular type of rats. She studied their cell types and used viruses which she had defined to see their effect on cells and the defence reaction of cells. She designed and used controls in her laboratory work for much the same purpose as has been discussed earlier. Her work was in medical science and was research orientated.

264 After receiving her PhD, Dr Davis took up a position for two years as a post-doctoral fellow in the Department of Microbiology in the School of Medicine at the University of California. During this period she undertook research into the viral DNA system with a view to finding a cure for when a virus struck. This work included DNA and protein sequencing and the extraction of both viral and cellular DNA. She obtained a grant from the American Cancer Society and another grant from the national Institute of Health for research. During this period, Dr Davis met Dr Ford to whom reference is made later. He was also a post-doctoral fellow at the same University.

265 Dr Davis then took up a position of Research Specialist in the Department of Molecular Biology and Biochemistry at the University of California, Irvine Campus for four years. Her primary duty was running a research laboratory but she also undertook teaching within the department at both undergraduate and graduate levels. At the former level she presented a general DNA course. Again she was involved in establishing protocols for the laboratory of which she was the manager. She was involved in cancer research which included the cancer causing viruses and the examination of DNA. Towards the end of this period she was introduced to PCR technology in 1989. She said that this laboratory was the first in the United States of America to use PCR technology in research. At this time the procedure was essentially manual. It took the place of DNA cloning. She had to design primers to attach to DNA in order to make copies. The process was to separate the DNA strands so that the primers could bind to the single strands. As with her earlier procedure, the primers were marked with radioactive dye and read in the same way. The separation process used gel electrophoresis. DNA was quantified in a manner similar to the QuantiBlot system which has been mentioned where the DNA from a sample adheres to a membrane and is probed with a radioactive probe and measured by x-ray film. There are differences between the process used by Dr Davis and the QuantiBlot system but they need not be described.

266 Dr Davis said that at this time she designed primers and PCR reactions for the purpose of her research. She explained her understanding of essential scientific technique. It is necessary to design an experiment and to control the experiment so as to remove bias, meaning the result which the scientist expects, or hopes, to get. She said that it is necessary to have scientific discipline. Regard must be had to the limitations of an experiment. It is necessary that the scientist knows that the process can only go so far. Every variable must have a control, negative or positive, so as to expose the variable. According to her, these matters are of particular significance in the present case.

267 I pause to say that whilst these matters assumed importance in her evidence, I regarded them as easily understood and rather obvious. They are the types of basic views which would be held by any scientist undertaking experimental or validation work and it is obvious from his evidence of the work undertaken by him and others at the Forensic Science Centre in validation and use of Profiler Plus, that they were well understood by Mr Pearman.

268 Whilst working as a medical scientist, Dr Davis was a co-author of five articles published in scientific journals relating to aspects of her research which were published between 1983 and 1990 inclusive. Whilst of importance in her field of work and relevant to her expertise as a medical scientist, the subject matter of those articles did not relate to any matter in issue in the present case.

269 In 1990 Dr Davis left this employment and went to a position as the Manager of Information Systems and Designer Computer Graphics with an engineering firm in the United States of America. She did not ever again work in a medical science laboratory. She described her work as designing and developing computer systems for the firm and also being responsible for maintaining and upgrading them. She said that she had used computers in her previous work, but it would seem on a relatively limited basis. Dr Davis gave no evidence about any training which she had undertaken in the use of computer technology or of the detail of her work at the engineering firm.

270 Dr Davis joined her present employer, Lexigen, in 1997 as a consultant in forensic DNA technology. Dr Ford is the founder. Lexigen is a private firm which works primarily for the defence in criminal cases in the United States of America mainly by reviewing the work of laboratories regarding DNA testing in particular cases and in some other areas of forensic science. It does not operate a laboratory. She said that Lexigen is available to be retained by prosecution authorities as well as the defence but in cross-examination acknowledged that no such retainer had yet occurred and she had only worked for the defence.

271 Pausing at this stage, it may be seen that Dr Davis has relatively limited experience in DNA analysis. She received academic training and undertook laboratory work including research work for a period of about ten years. She worked mainly with animals and viruses. She has never worked in a forensic science laboratory. She has never examined or profiled human DNA. The PCR method was only introduced in 1989 about a year before she left medical science. However, she explained that there is no difference between human DNA and that of mammals and that she became familiar with the PCR method in her laboratory work. She had not been working as a medical scientist let alone in the field of DNA analysis in any capacity during the period from 1990 to 1997 when the substantial developments in DNA technology occurred which I have recounted.

272 Dr Davis claimed to have expertise in STR DNA analysis using the PCR method and modern multiplex technology. I have mentioned her qualifications and experience before she commenced work at Lexigen. She said that she then received training from Dr Ford who has been working in forensic science for about 12 years, including in the field of DNA analysis but there was no evidence as to his training and experience in DNA analysis and technology and in cross-examination she acknowledged that he had never worked in a forensic science laboratory.

273 She has not undertaken DNA analysis for the purpose of human identification at any time, including since being employed at Lexigen. She said that when she joined Lexigen, she "ghosted" Dr Ford for eight months by attending with him at laboratories and courts, attending meetings with attorneys and going through files. There is little evidence about the expertise of Dr Ford and so these experiences are of little assistance in establishing her own expertise. At all events she did not undertake any structured training at Lexigen and during this time at Lexigen, she did not have Genescan or Genotyper until they were acquired from Perkin Elmer by Lexigen in December 1998. Dr Davis said that she had acquired and read the manuals for the Profiler Plus, Genescan, the 375, the 377 and the 310 but that Lexigen did not acquire those sequencing instruments.

274 Dr Davis said that she and Dr Ford attended a training session in December 1998 conducted by Perkin Elmer in the use of Genescan and Genotyper which occupied five hours. In cross-examination she said that she had told a Court in the United States of America in a criminal case referred to as Butterfield in April 1999 that this training course had occupied three hours and she said that evidence was correct. The difference, although relevant, is not, per se, a major matter relating to the issue of her credibility but it shows that her training in using that software was minimal. It is to be compared with the nature and extent of training required to comply with the TWGDAM Guidelines and NATA standards.

275 She said that she read scientific articles relating to forensic science, including articles relating to electrophoresis and bio-techniques and text books. She said she had, on occasions, had discussions with personnel in private laboratories and with others with expertise in DNA analysis and she attended conferences in 1997, 1998, 1999 and 2000 relating to forensic science including STR DNA analysis. Dr Davis said that on some occasions she observed DNA analysis in a laboratory including fluorescent STR technology. As I understood her evidence, there was one occasion when Dr Davis observed the use of a Profiler Plus with a 310 and a Genotyper.

276 Her work at Lexigen has mainly involved the review of casework by laboratories for the prosecution at the request of the defence. On some occasions these reviews have been undertaken jointly by her and Dr Ford. She explained that she would review whether the analyst and the laboratory satisfied TWGDAM guidelines and whether validation studies had been undertaken. On occasions she acted as a reader when observing tests but there was no evidence as to the system being used on that occasion. Also, she said that she gave advice to defence attorneys about DNA generally to assist them in understanding the technology.

277 During an early stage of her evidence-in-chief, Dr Davis said that she had evaluated about 200 samples using the Genescan and Genotyper software in between 40 and 50 cases. After giving evidence-in-chief for many days, Dr Davis returned to the United State of America. I was told that she had a commitment to give evidence at a trial in Florida. She resumed giving evidence in the present case some weeks later. Upon doing so, a folder of documents prepared by her was admitted into evidence. It includes lists of scientific articles and books which she said are in the premises at Lexigen, a list of protocols in her possession which have been obtained from laboratories undertaking DNA analysis which she has considered and various documents relating to conferences, seminars and workshops which she said she had attended in 1999 and 2000. None of the articles or protocols were produced although some of the articles had earlier been admitted in the course of evidence-in-chief by Mr Pearman. The documents include abstracts of poster presentations presented at those events. The purpose of the tender was to establish the depth and spread of reading of Dr Davis and the extent of her exposure to the presentations and reports of forensic scientists in relation to DNA analysis at the various events. I shall return to the significance of these documents later.

278 Another document prepared at the request of Dr Davis, and included in the bundle, is a list of cases in the United States of America, in which she has undertaken work. It includes the present case. The names of most of the cases and the laboratories were supplied on a confidential basis. The document also contains the number of samples with respect to each case and the issues in each case. These issues are described in brief terms such as peak height imbalance, mixtures, allelic drop out, high baseline and stochastic effect. There are others. She gave evidence about most of these cases and as to the observations which she made and their significance. There are thirty cases in all. They are all criminal cases where analysis had been undertaken by forensic science laboratories and the prosecution proposed to lead, or did lead, evidence of DNA analysis of the samples.

279 Dr Davis was retained by the defence in each case to undertake a review of the work of the laboratories and the scientist. She said that she was adversely critical of the work of the scientists in 28 of the cases and found no significant problems in only two of them. She claimed to have analysed over 4200 samples in all which she estimated involved about half an hour to an hour for each sample. By analysis of samples she said that she obtained the relevant electronic data from the laboratories which she reviewed, presumably using Genescan and Genotyper software which she had obtained from Perkin Elmer. She did not undertake any other part of the process of analysis. In 25 of the laboratories the Profiler Plus system was used and in the other cases other PCR STR fluorescent technology was used.

280 This evidence is to be compared with her earlier evidence as to the number of cases and samples Dr Davis had considered. If there was appropriate analysis of over 4200 samples, it is difficult to understand why she would have so significantly under-estimated her experience of that nature earlier in her evidence unless, when she returned to the witness box, she was attempting to bolster her record of experience in some misleading way. Perhaps she included the number of samples she claimed to have analysed as well as samples which had been further analysed but that is not the effect of her evidence-in-chief. However, during cross-examination she acknowledged that she was counting the various control samples and the allelic ladders which were again counted with each repeat of the analysis. I regarded her evidence as misleading as to her experience with Profiler Plus and deliberately so. The fact of the matter is that Dr Davis has had very little relevant experience with Profiler Plus and the interpretive software and was attempting to portray the contrary. As will be seen, this is but one matter which reflects adversely upon her credit.

281 Dr Davis claimed extensive experience with the Profiler Plus system through her work at Lexigen. It may be seen that her practical experience is limited to the use of the software and in the narrow scope of assessing the interpretation by others of the electrophoresis produced by Genescan and Genotyper and the analysis of them in a limited number of cases.

282 Furthermore, Dr Davis has never undertaken the type of training required to interpret electropherograms and other data for the purpose of DNA profiling. I have referred earlier to the essential and critical role of the interpretation by competent and appropriately trained scientists, and to articles and publications relating to that matter. I have also referred to the TWGDAM Guidelines and the NATA Standards for interpretation. Dr Davis did not have anything like the training and experience necessary to be a competent analyst. She has not undertaken any proficiency testing. Her work has not been second read or checked by another competent scientist. She has not received any training in forensic DNA analysis. She does not meet the requirements of the TWGDAM Guidelines and NATA Standards.

283 A real safeguard in the reading process used at the Forensic Science Centre and presumably at other laboratories, is not just that the scientists must agree on a profile before there is a report for inclusionary purposes, that is of a match between the DNA profiles of the suspect and a crime scene sample, but, as has been mentioned, the scientists are a constant check upon the work of each other. Regular disagreement by a scientist with other scientists, is very likely an indication of lack of skill or expertise on the part of that scientist. Dr Davis has never been subjected to that type of scrutiny in her work. The evidence about Dr Ford does not remedy this deficit.

284 In order to overcome this problem an attempt was made to lead evidence from her during her evidence-in-chief that when she had given evidence in cases in the United States of America, forensic scientists had said in their evidence that she had correctly identified issues such as have been mentioned or had not been critical of her work or opinions. In some instances it was proposed that she give evidence of what she had read in transcripts of evidence given by forensic scientists. In other instances, it was proposed to lead from her what she had heard the scientists say in Court, even though it was acknowledged that she would not be able to remember exactly what was said. The purpose of this proposed evidence was to establish that forensic scientists have agreed with her opinions as to the existence of various matters which, it was said, was relevant to establishing her expertise. It was said to be similar in nature to the evidence of continual checking of interpretation of a forensic scientist by other scientists in forensic science laboratories which in a form of peer review.

285 Ms Abraham contended that the evidence was inadmissible and should be excluded as hearsay. Mr Wells submitted that the evidence was not to be given as evidence of the truth of the statements made by the scientists but so that an inference could be drawn from the statements that Dr Davis had correctly identified the issues in each case. Such an inference, it was submitted, would tend to establish her expertise in the interpretation of electropherograms for the purpose of DNA analysis by using Profiler Plus. Mr Wells argued that the evidence was not hearsay but was original evidence to prove the state of mind of each of the speakers. That state of mind was agreement with the views of Dr Davis as to the issues raised by her. He drew an analogy with proof of an intention to enter into an agreement with binding contractual obligations by proof of statements made by parties at relevant times. It is from that fact that the inference of expertise could be drawn. He cited The Queen v Hendrie (1985) 37 SASR 581, Walton v The Queen [1989] HCA 9; (1988-1989) 166 CLR 283 and R v Matthews (1990) 58 SASR 19.

286 In Hendrie evidence in a murder case of what the deceased said on the day before she was killed was admitted to prove her intention about a particular matter which could explain why she entered a bathroom without a struggle. It was held to be original evidence tending to prove her state of mind and intention at the time she made the statements. King CJ said at p585:

"It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind."

287 In Walton, another murder case, evidence was led as to statements made by the deceased to witnesses to the effect that she was going to meet the accused at a time relevant to when she died. The prosecution led the evidence to prove the intention or state of mind of the deceased. For present purposes it is unnecessary to mention the other type of evidence of this nature considered in Walton. Mason CJ said at p288:

"The hearsay rule applies only to out-of court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker's knowledge or state of mind when he made the state in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue: Reg v Blastland [1986] AC 41. Similarly, a person's statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish LJ remarked in Sugden v Lord St Leonards (1876) 1 PD 154 at p251:

'[W]herever it is material to prove the state of a person's mind, or what was passing in it, and what were his intentions, there you may prove what he said ...'

The point is that the making of the statement is itself evidence of the author's intentions at the time the statement was made. Evidence of the making of the statement may be given by the author himself or, in the case of an oral statement, by any person who heard it made."

The Chief Justice went on to say that this type of evidence is not hearsay but original evidence and has independent evidentiary value in proving the author's state of mind as to a fact in issue. 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."

See also Ratten v The Queen [1971] UKPC 23; [1972] AC 378 per Lord Wilberforce at p387:

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', i.e., as establishing some fact narrated by the words."

289 In R v Matthews, also a murder case, evidence of statements made by the deceased prior to her death as an inference could be drawn from them to prove her state of mind that she was in fear of the accused which was relevant to a fact in issue.

290 These decisions do not afford any basis for the admissibility of the evidence proposed to be led. The state of mind of a scientist about statements made by Dr Davis is not a fact in issue in these proceedings in the relevant sense. Whether Dr Davis is an expert competent to express certain opinions is not, in my view, a fact in issue in the sense discussed in these cases. Usually, in a murder case, it is only the state of mind of the accused which is relevant but, as these cases show, the state of mind of the alleged victim about a particular matter may also be relevant. In a particular case the same may be said about a witness, but evidence of this nature is only permitted to establish a matter relevant to a fact in issue. It may not be used to circumvent the hearsay rule. If the other scientists could give relevant evidence as to the expertise or competence of Dr Davis, that evidence had to be given in a permissible manner. The proposed evidence was plainly hearsay and I excluded it.

291 It may be seen from this narrative concerning the qualifications, training and experience of Dr Davis, that it may be accepted that she is a medical scientist with high academic qualifications and experience in the use of DNA in medical research of the type mentioned. It may be accepted that she has an understanding of DNA and some practical experience with PCR technology although in its infancy. She has some experience with some features of STR loci but not for the purpose of human identification. She has some experience in the establishing of protocols for experimentation in a medical science laboratory. I was prepared to accept, for present purposes, that Dr Davis had some understanding of the theory and basic science underlying DNA and its function and purpose in forensic science for the purpose of human identification.

292 However, the following matters are established unequivocally by her evidence. She has never undertaken analysis of human DNA. She has never examined STR loci for the purpose of human identification. She has never used the QuantiBlot system of quantification but I accept that she has used a similar method of quantification. She has never used multiplex or megaplex systems although she had some experience in 1989 with the inspection of two loci simultaneously. Although she said she built a thermalcycler for her own laboratory purposes, she has never used a thermalcycler of the type used in modern DNA technology for amplification. She has never used fluorescence technology in the way in which it is used in the multiplex kits or undertaken validation of fluorescence technology. She has never worked in a forensic science laboratory. She has never undertaken DNA analysis for the purpose of human identification in the forensic context. She has never conducted a DNA test on Profiler Plus or using any fluorescence technology. She had never seen the 377 before coming to Adelaide to give evidence in this case and has never used a 377. None of the cases in which she said she had undertaken work involved the 377 although one did involve the 310. On only one occasion had she considered results from the use of a Quadruplex. Dr Davis acknowledged that she is not qualified to work in an accredited forensic science laboratory without in-house training and proficiency testing. She agreed that experience in conducting DNA analysis and interpreting results is an important qualification for a forensic scientist and that a supervisor of analysts must have had hands-on experience. She is not an inspector for the purposes of accreditation of laboratories pursuant to TWGDAM, ASCLD or NATA.

293 Dr Davis acknowledged that she had never conducted validation studies for forensic purposes including for fluorescent technology or any other technology. She has never conducted any test to ascertain what level of DNA can be reliably tested using Profiler Plus, as to the appropriate RFU level to interpret results or as to the appropriate analysis parameters. She has never compiled a database for forensic purposes. She has never completed a competency test or a proficiency test for analysis of DNA results.

294 In order to determine whether Dr Davis is qualified as an expert and may express opinions about DNA analysis, it was first necessary to identify the subject matter about which her opinion was sought. The relevant subject matter included a number of topics: the interpretation of results using Profiler Plus, including the interpretation of electropherograms generated by Genescan and Genotyper, the appropriateness of laboratory techniques and protocols for DNA analysis using PCR STR fluorescence technology, the appropriate analysis parameters using Profiler Plus and, in particular, when low levels of DNA are used, and the appropriateness of validation studies for forensic purposes, including results obtained and conclusions derived from them.

295 I had real doubts about the expertise of Dr Davis to express opinions about any of these matters. There may be occasions when the evidence of a witness about the particular subject matter may demonstrate that the witness has acquired "sufficient knowledge of the subject to render his (or her) opinion of value in resolving issues before the court: Bonython at p47. It is not always possible to know one way or the other until the evidence is given, hence the utility of a voir dire when expertise is genuinely in dispute and qualification may be obtained by other than academic qualifications or professional practice. In Murphy Brennan J observed that the admissibility of opinion evidence tendered by an expert depends upon the fact which is sought to be proved by admission of the evidence and adopted the following passage from Wigmore on Evidence (Chadbourn rev. 1979), vol 2, p750:

"The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. His [her] fitness, then, is a fitness to answer on that point. He [she] may be fitted to answer about countless other matters, but that does not justify accepting his [her] views on the matter in hand ....... Since experimental capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not the kind of person."

See also R v Anderson (VSCA, 25th February 2000, unreported) per Winneke P at p22.

296 Whilst the forensic science community recognises that adequate training and experience, including practical hands-on experience in a laboratory is essential for DNA analysis, as has been seen, the law requires only that the witness from whom the opinion is sought is peritus. Lord Russell CJ in R v Silverlock [1894] 2 QB 766, with whom the other members of the Court agreed, said at p771:

"..... but we cannot say that he [she] must have become peritus in the way of his (her) business or in any definite way. The question is, is he [she] peritus? Is he [she] skilled? Has he [she] an adequate knowledge?"

That is not to say that experience and supervision are not very important matters and in the present case, depending upon the subject matter, they may be essential, but the necessary knowledge may be obtained in other ways, again depending upon the subject matter. Once it is established that a witness is an expert in the relevant field of knowledge, the witness will be permitted to express the opinion, however unconvincing it might appear to be: Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292; Bonython at p46.

297 It was not only necessary to consider the opinions and observations given by Dr Davis to answer the relevant question, but also to consider the manner in which she gave her evidence, her credibility and whether she approached her work and the giving of opinions as would be expected from a person of science. Many matters arose during the course of evidence which reflect upon her. I mention some matters, the cumulative effect of which cause grave doubts about the expertise, reliability and credibility of Dr Davis. I have not mentioned all of them because the others only reinforce the conclusions which I have reached and it is unnecessary to say more for present purposes. These are not mentioned in any order of importance.

298 The list of articles which Dr Davis produced upon her return to the witness box which has been mentioned does not contain one article or scientific publication which reported that Profiler Plus had been validated and found to be robust, accurate and reliable for human identification notwithstanding that about 230 articles are referred to in the list and many were published after the introduction of this technology into forensic science laboratories. As has been seen, a number of peer reviewed articles and scientific publications were admitted into evidence which purport to be validation of Profiler Plus and report its reliability. I concluded that this list was produced in an attempt to impress the Court as to the extent of the library at Lexigen and of the depth of Dr Davis' study and reading. There are various explanations for not including such validating articles in the list. One possible reason is that Dr Davis was not aware of them. Another is that she did not want the Court to know that they were available to her. The former is not possible because she was aware that they had been admitted into evidence in the present case. It is more likely to have been the latter. As will be seen, there were other instances when Dr Davis did not reveal favourable publications about Profiler Plus despite being aware of them.

299 I have mentioned that there are among these documents certain papers relating to various forensic science meetings, seminars and workshops in 1998, 1999 and 2000 which were attended by Dr Davis. She gave evidence as to which papers and presentations she attended. These documents include copies of extracts of papers given at those events as well as copies of poster and slide presentations. They cover a wide field of topics. The purpose of producing the documents was to show a manner by which Dr Davis claimed to be peritus.

300 The first matter of significance about these documents is that there is not one abstract, paper, poster or slide which suggests one criticism by forensic scientists of Profiler Plus. On the contrary there are abstracts, papers, posters and slides which indicate the contrary.

301 The second matter relates to an incident described by Dr Davis at the Annual Meeting of the American Academy of Forensic Sciences at Reno, Nevada in February 2000. She said she attended a session at this meeting at which forensic scientists from the Santa Clara County Crime Laboratory at San Jose in California presented a session about their validation study of Profiler Plus using the 310. One of these scientists was Ms Lisa Brewer. Dr Davis said that she spoke to Ms Brewer at this session who told her that she had concerns about mixtures when using Profiler Plus. Of course, if such a concern is validly based, Profiler Plus would not be suitable for DNA analysis in many types of criminal casework because it is not known if a sample is, or could be, a mixture.

302 Dr Davis gave evidence in the Superior Court of the State of California for the Court of San Francisco in The People of the State of California v Moevao (25th July 2000, unreported) as to whether capillary electrophoresis, the Blue Kit, the Green Kit and the 310 had all been generally accepted by the relevant scientific community. During her evidence she told the Court that she spoke to Ms Brewer during the previous year. She said she did not remember exactly when the conversation occurred, but her recollection was that it occurred in October 1999. She told the Court in Moevao that Ms Brewer told her that she had the concerns about mixtures. In her evidence in that case she said that she volunteered Ms Brewer's name and she mentioned the alleged conversation in support of her own evidence about the possible unreliability of Profiler Plus in determining mixtures.

303 In the present case, as has been mentioned, Dr Davis said that this meeting occurred in Reno in February 2000 which is only three months before she gave evidence in Moevao when, it might be expected, the conversation with Ms Brewer occurred, if it did occur, would be fresh in her memory. After all, the subject matter of the alleged conversation was of considerable importance with respect to the accuracy and reliability of Profiler Plus, a subject about which Dr Davis was frequently expressing opinions.

304 During cross-examination, in the present case, she was shown the abstract of the presentation by scientists of the Santa Clara County Crime Laboratory, including Ms Brewer, at that meeting which appears from the format and style to have been among the papers given to delegates at the meeting. The title of the abstract is "Validation of the AmpF_l_STR (r) Profiler Plus and the AmpF_I_STR (r) Cofiler PCR Amplification Kits, using TWGDAM Guidelines?". Ms Brewer is shown as one of the presenters. The abstract states that the presentation will provide an outline of the specific steps taken to validate Profiler Plus and Cofiler Kits for implementation into casework using the 310 and that the presentation was about important matters concerning that validation study and the specific sections of the TWGDAM Guidelines which it addressed. The abstract shows that extensive validation for Profiler Plus in accordance with the Guidelines had been undertaken by the Santa Clara County Crime Laboratory, including mixed specimen studies. Many tests were undertaken including with mixtures and also in collaborative studies by other laboratories. I shall again refer to this abstract for other purposes but it is the validation study of mixtures, for the present, which is significant. The conclusion presented by the scientists is:

"In conclusion, the validation studies conducted by the laboratory demonstrate that reliable and reproducible results are obtained when using the Profiler Plus and Cofiler amplification kits, and may be used for casework samples."

Dr Davis did not include this extract in the bundle of documents which she brought to Court after her return to the witness box despite her including 21 other extracts, only two of which could have some relevance to modern DNA technology. They all relate to workshops, not papers or presentations and include a wide variety of subject matter mostly unrelated to DNA analysis. Dr Davis did not say that she attended those workshops, but the point to be made is that she included all of the abstracts about the workshops regardless of the subject matter and only a few of the abstracts concerning presentations about Profiler Plus. Of considerable significance is that she did not include the abstract of the presentation of the validation studies which has been mentioned and further made no mention of it until she was cross-examined. Her explanation about this omission was that she did not have time to copy other material when back in the office in San Francisco before returning to Adelaide. I rejected this explanation. I did not regard Dr Davis as being truthful in her explanation.

305 Also I did not accept the evidence of Dr Davis that Ms Brewer made the disclosure to her which she asserted. It was the evidence of Dr Davis that Ms Brewer made this disclosure despite having taken part in a presentation on the same occasion to the contrary. When the unlikelihood of Ms Brewer behaving in this way at a serious professional meeting about a matter of importance was put to Dr Davis she did not address the questions she was asked. Eventually she acknowledged that Ms Brewer had participated in the presentation as shown in the abstract but had said to Dr Davis privately that she did not think the necessary scientific rigour had been undertaken relating to mixtures.

306 There is another matter regarding this incident which reflects upon Dr Davis. Despite her lengthy evidence-in-chief and her reference to other scientists, she did not mention this abstract or the validation study of the Santa Clara County Crime Laboratory. She was selective in what she asserted Ms Brewer had said about the reliability and accuracy of Profiler Plus. She agreed that this study and the abstract were relevant to matters I had to consider, but she did not give evidence about it until she was cross-examined and further had not told anyone in Adelaide about it before resuming her evidence. This evidence caused me to have great concern about the reliability, competence and impartiality of Dr Davis. It is inconceivable that she would not mention this presentation and abstract to anyone if she was practising the principles of science which she espoused in her earlier evidence.

307 There is one last matter which is of some, but less, significance. Dr Davis was prepared, in two courts of law concerned with very serious matters, to purport to speak for another scientist and did so without checking with the other scientist as to whether she agreed that the proposed evidence was accurate, and was prepared to have the opinion attributed to her.

309 Earlier I mentioned the case of The People of The State of California v Hill. Dr Davis gave evidence in that case at the pre-trial stage. During the course of her evidence she was asked if the DNA profile of the prosecutor could be the same as the profile of the defence counsel when all nine loci using the Profiler Plus system are inspected. She told the Court that at a scientific meeting she had attended, it was reported that it had been found that two unrelated persons had the same profile across the nine loci. As will be seen, it is generally regarded in the forensic science community that such a possibility is one in more than 90 billion. For practical purposes it is generally regarded that such a match could not occur although I was told by Dr Buckleton that such a match has been found involving two members of a remote indigenous tribe in South America. There are accepted reasons in population genetics why such a match could occur due to what may be described as in-breeding but it is a matter of no significance for present purposes.

310 What is significant is that Dr Davis gave this evidence in Hill on the basis of a conversation between two persons unknown to her and overheard by her during a coffee break at one of the conferences or meetings. She told the Court in Hill that the person who made the statement was an analyst. It was this evidence in Hill, which again was for a serious purpose, that caused me concern about the competence and reliability of Dr Davis. Assuming the incident to be true, it is alarming that a professed expert witness called to assist a court, would testify in that way without any enquiry as to whom the speaker was, what the statement had been based upon and other matters relevant to its validity.

311 In evidence in the present case Dr Davis expressed her own opinion that it "is not going to be an uncommon or non-existent event to find two people who match at all the loci inspected by Profiler Plus". She was then asked:

Q Do you have any scientific basis for that opinion at all: any article, any test, any analysis beyond which you have told me today.

312 Also, in the case of Hill, at a later hearing, Dr Davis told the Court that she had attended a session at a scientific meeting regarding the Swiss Air disaster presented by scientists from the laboratory of the Royal Canadian Mounted Police. Mention has been made of the article published by these scientists. Dr Davis said that the scientists stated that there were victims who were husband and wife whose DNA profile matched at seven out of nine loci. Dr Davis agreed that before giving evidence in Hill, the scientists had disputed that they had made that statement. Dr Davis insisted that they had done so. The following was put to her as the statement made by the scientists:

"In this other situation, an impressive sharing of alleles is obvious among the children of this family, which could find an explanation in the fact that the father's genotype featured five loci in a homozygote state, and he also shared with his spouse at least one allele at seven out of nine loci."

Dr Davis said that although she could not remember these words this may have been the point made at the meeting. She said that she did not volunteer to the court in Hill that there was a dispute about what was said at the conference but made that disclosure when questioned by counsel.

313 I found this evidence about these matters to be disturbing. The assertion of scientific fact or truth based upon an overheard conversation between persons unknown during a coffee break at a scientific meeting without any checking or validation is contrary to the degree of responsibility which the Courts are entitled to expect from experts. To assert a fact to be the findings of scientists when it is known that the scientists concerned dispute the assertion brings into serious question the reliability of the scientific method employed by the person making the assertion. Not to immediately disclose the dispute to the Court brings into question the probity of that person. I had no doubt that any competent and reliable scientist genuinely trying to assist the Court would not only relate the dispute in a balanced way but would check with the other scientists as to the true position before giving evidence. Dr Davis did neither.

314 Dr Davis gave evidence in some detail about the process of accreditation of a forensic science laboratory by ASCLD and for auditing a laboratory. The effect of her evidence is that the inspectors are concerned with practices and procedures, such as guidelines and protocols, rather than the quality of the work undertaken by the laboratory. She said they check case files for these purposes. In essence, she said the inspection is an administrative rather than a scientific audit. She claimed to be qualified to tell the Court about these matters. She acknowledged that she had no first-hand experience of any of these matters. She had never been at a forensic science laboratory when it had been audited. She was prepared to accept that the audit of the Forensic Science Centre, for accreditation purposes if by ASCLD, would have been administrative not scientific based upon what she had been told at meetings in the United States of America about accreditation in that country by ASCLD. These were meetings involving SWGDAM and NFSTC which she did not describe but which, I assume, is an organisation of forensic scientists.

315 I regard this evidence as indicative of the approach of Dr Davis about matters in issue. She acknowledged that she had not sought any information about the accreditation of the Forensic Science Centre beyond that it had been accredited. She down-played the significance of accreditation. As has been seen, the accreditation process of the Forensic Science Centre was nothing like what was described by Dr Davis. Quite simply she knew nothing about that matter and very little about the accreditation process in her own country. What she did know she claimed she had been told at conferences and the like. Her preparedness to express expert opinions about these matters calls into question not only her competence and reliability, but her impartiality.

316 I now turn to evidence which Dr Davis has given in other cases which has been shown to be untrue or unreliable. She gave a written declaration at the pre-trial stage at the request of the defence in a case of Thomas, the reference for which was not provided to me. In that case the Promega CTT DNA analysis system had been used. CTT is the silver staining test developed by Promega. In this declaration, Dr Davis stated:

"The CTT was not widely adopted by forensic labs and, for all intents and purposes, has been abandoned in favour of fluorescent technology, such as AmpFISTR, Profiler Plus, ABI 310."

Although the copy shown to her in cross-examination had not been signed by her, she acknowledged that she had prepared the document and the contents were true. The declaration was prepared in June 2000 shortly before Dr Davis came to Australia to assist the Defence in the present case. In Thomas the prosecution proposed to lead evidence of DNA analysis undertaken with the Promega CTT.

317 In her evidence in the present case, Dr Davis, before being shown the declaration, disagreed with the statement that Promega CTT had been abandoned in favour of fluorescence technology. She said it had been abandoned because of its own problems. She explained that she disagreed with the phrase "in favour". However, she said that she made declarations in very similar terms in other cases.

318 Dr Davis made another declaration on 19th June 2000 in the case of Nawi in the United States of America in which the same opinion is given in exactly the same terms. I was not given a reference to that case. Having given this other declaration in the same terms, she was asked why she said in the present case that she disagreed with the proposition that the Promega CTT had been abandoned in favour of fluorescence technology. Her reply was that Promega CTT had ceased to be used and that fluorescence technology was being used but she was not sure if one was abandoned in favour of the other.

319 I accepted that these declarations and this evidence impugned the credibility of Dr Davis as it indicated that she was prepared to express opinions in favour of fluorescence technology and Profiler Plus in those two cases in America but express a contrary opinion in the present case against general acceptance of Profiler Plus. Also, I took the view that these differences suggested a lack of impartiality on the part of Dr Davis.

320 Dr Davis also gave evidence in April 1999 in the case of Butterfield in the United States of America. In an affidavit prepared for that case she deposed that the loci inspected by Profiler Plus had not been used in prior DNA tests, meaning used in other systems. She acknowledged that evidence to be incorrect. She acknowledged that vWA and FGA had been used previously. As has been seen, the other loci inspected by Profiler Plus were used in other systems, including SGM which inspected D8, D21 and D18. Dr Davis said that she was not aware that such was the case. She agreed that she had made no enquiries about what loci had been inspected by SGM before giving evidence in Butterfield. When pressed about why she gave this and other evidence in Butterfield to the same effect, her answers were unsatisfactory and evasive in that she was attempting to equate lack of knowledge of chromosomal location with lack of knowledge of the primer sequences. As has been seen, the chromosomal locations and primer sequences for each locus inspected by Profiler Plus have been published to the forensic science community, although modifications to the primer sequences have not been published.

321 In the case of Hill, Dr Davis also told the Court that Profiler Plus was the first kit put out with any fluorescent tags. She agreed that this evidence was not correct. Her explanation was that she did not use her words very carefully and she was attempting to discuss the difference between fluorescence and non-fluorescence technology. I did not accept that explanation. As has been seen, fluorescent tags or primers have been used in DNA technology long before Profiler Plus. They were used in Blue I, Green I, Quadruplex and SGM as well as Promega Kits. Although she denied it, I concluded that her evidence in Butterfield was not only untrue but designed to establish that this technology was novel. She accepted, in the present case, that fluorescent kits had been in use for years before the advent of Profiler Plus but said that different primers had been used.

322 In evidence-in-chief in the present case, Dr Davis said that the phenomenon of primer binding site mutation is not as rare as some scientists had indicated and that it is appearing in about one case in every 200 cases. She referred to an article by Ms Kline and a responding article by Mr Walsh of Perkin Elmer as well as an article by Dr Budowle. Earlier in her evidence she referred to the published article by scientists of the Forensic Science Service entitled "Development of Guidelines to Designate Alleles using a STR Multiplex System", earlier mentioned in these reasons in the context of the crucial role of the analyst. In that article, the scientists observed that sometimes the vWA locus can behave atypically in that an allele can be in the region of 50 per cent of the size of its companion. They said that the reasons are not clear and that it is possible that there may be a mutation at one of the primer binding sites of this locus. They referred to a personal communication with Mr Walsh to whom reference is made shortly.

323 In fact the Kline article is a letter from Ms Kline of the National Institute of Standards and Technology (NIST) laboratory and two other scientists, to the Journal of Forensic Sciences advising about the typing of 600 population samples as part of the STR standardisation project of the FBI. The samples were taken from 200 Caucasian, 200 African American and 200 Hispanic persons. They encountered one African American sample that typed differently at the vWA locus when using the Promega PowerPlex Kit and the Perkin Elmer Blue Kit. When the sample was analysed with monoplex primers from both Promega and Perkin Elmer, the results were the same as when profiled by the Promega multiplex. The consequence was a different profile with one allele between the two Perkin Elmer Kits. The scientists reported that as those kits used different primers, they were not binding to the same location on the genome.

324 Mr Walsh, of Perkin Elmer, wrote a commentary on this letter which was subsequently published in the same journal. He explained the reason for the difference was a mutation which destabilizes primer binding and prevents amplification of an allele carrying the mutation and he reported that Perkin Elmer had undertaken a study to resolve the issue. He also reported the experience of the NIST laboratory and of the laboratory of the Office of the Chief Medical Examiner which analysed 200 samples (50 African American and 150 American Hispanic) and found one discordant sample. Perkin Elmer undertook studies using 683 samples using the primers found in SGM which has no sequence overlap with the Perkin Elmer primers. The results revealed no mutant allele at the vWA locus.

325 He further reported that considering the three studies together, there had been discordance with two alleles in 1483 individuals, yielding an allele frequency estimate for the mutant allele of 0.00067 per cent. Mr Walsh went on to set out reasons why full concordance is to be expected.

326 In an article published by Dr Budowle of the FBI Forensic Science Laboratory on 7th June 2000, he referred to the study by Ms Kline and reported that the FBI had undertaken a similar study with Promega of 750 samples from persons of various races using Profiler Plus and Cofiler. There were no differences in typing results and all alleles were within acceptable measurement error ranges. The article concludes that the primers from Promega and Perkin Elmer do not produce significant levels of drop out.

327 Dr Davis was cross-examined as to how she could justify the evidence that the primer binding site mutation was occurring in about one case in each 200. Her explanation was that the Kline letter shows two vWA primer binding site mutations in one in 200 Caucasian and one in 150 Hispanic people, presumably referring to the Walsh responses. Of course, that is not what Ms Kline and the other scientists were reporting. In their study there was one discordant result from an African American sample.

328 In my view, there was no basis in these publications for Dr Davis to give the evidence of it having been reported that primer binding site mutation at the vWA locus occurs in about one in 200 cases. When the publications were put to her, she attempted to use the statistics to support her argument but unsuccessfully. She was exposed in her attempt to portray that scientists accept such a high level of primer binding site mutation. Her evidence was inaccurate and, once again, disturbing. She attempted, in this way, to show unreliability of Profiler Plus and Perkin Elmer kits amplifying the vWA locus without any sound scientific basis.

329 Dr Davis then attempted to build on this assertion of a primer binding site mutation at the vWA locus for the purposes of showing that the South Australian Profiler Plus database was invalid. She said that with a database of more than 400 samples, which appears to be a reference to that database, to find one or two examples of preferential amplification where there is primer binding site mutation is a problem. Also she said that because of these mutations, there is concern with PCR STR technology.

330 There is no suggestion in the evidence that Dr Davis has ever undertaken any analysis of the frequency or extent of this problem or to see if it exists at other loci as she implies may be the case. Her opinion about this matter lacks any sound scientific basis and is not supported by the relevant scientific community. Nevertheless she was not reluctant to express a firm opinion. She said that the Profiler Plus system was unreliable for this reason. However, she agreed that there are other scientists who take the view that it is reliable and there was a difference of opinion between her and them. Having accepted that many laboratories around the world were using Profiler Plus for serious work, she was asked if she had any explanation as to why that is so if the system is unreliable. She said that it causes her concern and she did not know why anybody else would not consider there to be a reliability problem.

331 Another aspect of the use made of the article of Dr Kline by Dr Davis is her reference to it in the cases of Moevao and Silva, also a case in the United States of America. In both of these cases she made declarations in which she said, inter alia, that she was familiar with two publications that deal with stutter, allelic drop-out, mutations and slippage and other matters. The second of these articles was the Kline letter. In the declarations she said that the Profiler Plus kit was found to produce an allelic drop-out due to mutation in the primer binding site. In these declarations she made no reference to the Walsh response. Her explanation was that the declarations were not meant to be "a complete literature search", but she agreed that she was attempting to persuade the courts in those cases that there was a problem with mutation and that the articles she referred to demonstrated that problem which, of course, means a problem with the Profiler Plus system.

332 In neither of these cases did she inform the Court of the Walsh response. Judge Warren, in the Moevao case, made an adverse finding about Dr Davis for that reason saying that it affected her credibility "as an impartial scientist". Upon the evidence in the present case, I reached the same conclusion.

333 During cross-examination, Dr Davis was asked if the use of STRs was generally accepted in the forensic science community as a reliable region of DNA to test in the forensic context. She said that she thought it was used but she did not really have a knowledge of general acceptance. Pausing here, it must be said that her response that she thought STRs were used is specious. As has been seen, PCR STR technology had been in wide use through the world since the early 1990's. If she has any knowledge of the subject matter at all, she would know that the technology was widely used. If the answer is truthful and she only thinks that it is used, she is not an expert. The true understanding of her answer is that it is one of many examples of her not being able to accept an obvious proposition from the cross-examiner. Dr Davis then embarked upon a distinction between general acceptance in the law and general acceptance in science. During her evidence, certain obvious propositions were put to her of matters of science being generally accepted, but she declined to acknowledge that the concept was appropriate for scientists.

334 In Hill, Dr Davis told the Court that there was not any form of STR analysis that was generally accepted in the scientific community as being reliable for DNA profiling. However, later in cross-examination in the present case she agreed that she said in evidence in Hill that the Promega CTT Kit was generally accepted as reliable but explained that in giving that evidence she was using general acceptance in the legal, not the scientific, context.

335 I found this evidence puzzling. Of course, Dr Davis is not a lawyer and can only speak of her understanding of legal concepts. If she is wrong, that is not a matter which tells against her when assessing her expertise about relevant matters. However, to say that there is no concept of general acceptance of scientific principles as truth is an odd reaction for a scientist as at any given time many matters have been generally accepted by relevant scientific communities. It may be that Dr Davis is saying that because an accepted truth at a given time is found to be wrong in the light of new discovery or further information, no matter should ever be generally accepted by men and women of science. However, it was clearly established that many matters in the context of DNA and DNA analysis have been established and accepted by men and women of science. Indeed, her own evidence about her own research and experiments as a medical scientist establishes those matters beyond question.

336 In the end, I found that Dr Davis was using this alleged dichotomy between the law and science to avoid having to face the overwhelming evidence that matters which she denied had been generally accepted by the relevant scientific community.

337 I have mentioned the allelic ladders which are run in the gels with the samples which are analysed using Profiler Plus, 377, Genescan and Genotyper. Also I have mentioned the common artefact of stutter which occurs in fluorescence technology. Because of the sensitivity of the system, all of the alleles in the allelic ladder are recorded in the software together with peaks representing stutter or any other artefacts. Genotyper will give an allelic designation to all of these peaks unless they fall below the RFU level which has been set for the particular run of samples.

338 The electronic data for the analysis of an allelic ladder was provided by the Forensic Science Centre to the Defence and run by Dr Davis through her computer. She produced the electropherograms which were admitted into evidence. Peaks other than those representing alleles are shown on the electropherograms. Dr Davis expressed the opinion that the additional peaks should not be present and that the reason for their presence could be a scientific problem with the ladder, pull up or a manufacturing problem at Perkin Elmer. Whatever the reason, she said a mistyping could not be excluded because of the problem which she identified with the allelic ladder.

339 In cross-examination Dr Davis acknowledged that there could be stutter in the allelic ladder which would be represented as peaks in the electropherogram. The software has a stutter filter and Dr Davis acknowledged that when she produced the electropherograms of the allelic ladder, the stutter filter had been removed by her with the consequence that some stutter peaks were given an allelic designation by Genotyper. According to Dr Davis, there is no place for stutter filters when undertaking casework because they remove information which may be necessary in the interpretation process and it should not be assumed that a peak is a stutter.

340 In her evidence-in-chief Dr Davis did not say that she had turned off the stutter filters. She was prepared to express the opinions which have been mentioned as to the unreliability of the Profiler Plus system on the basis of allelic designations having been given to peaks which were plainly stutter without disclosing that the filters were not operating.

341 When Mr Pearman was cross-examined about the matter, he was not informed that the stutter filters had been removed. When he checked the electropherograms which had been produced by Dr Davis with the data at the Forensic Science Centre, he discovered that she had removed the filters. When re-examined after Dr Davis had completed her evidence, Mr Pearman explained the purpose of the filters. I describe that purpose only briefly. When Genotyper inspects the DNA in a lane, it looks at the first peak at each locus to designate the first allele. A 20 per cent filter is applied to the first peak so that stutter is not designated as the first allele. Once the first allele is designated, Genotyper designates the other allele or alleles at that locus. Where the sample is an allelic ladder, all of the usual alleles at the locus are designated. The process is well known and is set out in the manual. The Genotyper is then able to designate all of the peaks without selecting a stutter peak as the first allele.

342 During cross-examination Dr Davis acknowledged that she was aware of the contents of the manual about this matter and had a copy of it at Lexigen. It was put to her that she had not disclosed in examination-in-chief that she had removed the stutter filters. She said that she believed that she had done so. At no stage of her evidence-in-chief did Dr Davis say that she had removed the stutter filters. When pressed about the matter, she was asked if she accepted that if the Court read the transcript and the disclosure was not shown, then she had not said that the filters had been removed. She did not agree with that proposition and said that she had more knowledge and therefore she might recognise something which the Court might not.

343 I rejected that explanation. I found this evidence about the removal of stutter filters and the purported interpretation of the electropherograms to be very revealing about the credibility, competence and impartiality of Dr Davis. Careful consideration of her evidence revealed that either Dr Davis did not understand how to interpret the electropherograms or that she was attempting to mislead the Court in the interests of the Defence. Any competent forensic scientist adequately trained in DNA analysis with fluorescence technology using Profiler Plus or any other similar system, would understand the consequences of removing the stutter filters, including that stutter peaks would be given an allelic designation which should be given. No such scientist would interpret an electropherogram showing such a consequence as indicating the unreliability of the system. No scientist genuinely trying to assist the Court would refrain from mentioning that the stutter filters had been removed.

344 I now turn to evidence of Dr Davis about the South Australian Profiler Plus Caucasian database which was established by the Forensic Science Centre.

345 Mention has been made of the decision of SAG to establish a national Caucasian database and for the use of the Profiler Plus system for that purpose. After acquiring the Profiler Plus, the Forensic Science Centre compiled a database for the loci inspected by that system. It is comprised of the profiles of samples from persons who said that they are of the Caucasian race.

346 377 samples from members of staff, mothers and suspected fathers in the context of parentage testing and blood donors to the Red Cross were analysed using Profiler Plus. Many of these samples had been taken some years ago. The results were compiled in tabular form which included the number of the gel, the type of sample and the genotype at each locus. The database was sent to Professor Weir and Dr Buckleton, of whom mention is made later, for assessment of validity. Following a report from them, the samples were tested again and the results of other tests were added, making a total of 414 samples. The same type of information was included in the table of results which was again sent to Professor Weir and Dr Buckleton. A further report was given which resulted in further alterations to the database, although the number of the samples remained the same.

347 The electropherograms for all of the tests of the 414 samples were kept and made available to the defence and consequently to Dr Davis. She purported to interpret those electropherograms and a substantial body of evidence was led from her.

348 Of the 414 genotypes designated by the Forensic Science Centre, Dr Davis, in evidence-in-chief, expressed the opinion that there were only 160 genotypes which could be used. As to the others, she said there was peak imbalance which might be hiding another allele, pull up which may be hiding information that the analyst was disregarding and there were null alleles or possibly null alleles and tri-alleles. She said there was differential amplification, possible mixtures which had not been detected and possible high baseline which could be hiding peaks. So, out of the results of 414 samples, according to Dr Davis, only 160 could safely be used. She was taken through the electropherograms and expressed the reasons for her opinion about each of them.

349 In cross-examination she said she had reconsidered those electropherograms of samples which had been re-analysed by the Forensic Science Centre and the total number of useable samples for the database was 174 out of 414. Dr Davis prepared a list of her observations as to each of the 414 samples. Her first total of useable samples was 195. Later in cross-examination, she said that there were 196 useable samples. I do not regard that alteration as of much significance, but the different between 160 and 195 is of considerable significance.

350 I gained the impression that Dr Davis changed her mind during cross-examination. In her list she placed the results which she said could not be used into the following categories; 67 saturated with pull up, 111 null alleles or allelic drop out, 23 locus drop out, 19 unlabelled alleles, 34 low RFU levels and 33 peak imbalance. Obviously there was overlap in these categories because appropriate addition of these figures and subtraction from the total number in the database does not result in 196. However, I do not regard that as a matter of significance.

351 I do not propose to discuss the vast amount of evidence given by Dr Davis about these matters except in a general way. First I mention pull up. Earlier I mentioned pull up as an artefact in STR fluorescence technology, including in the Profiler Plus system. I accepted that it is easily recognised by the trained analyst as was reported by the Forensic Science Service in 1997 as previously mentioned.[38] Many examples of pull up in electropherograms were established in the evidence and its existence was often usually easily seen without the need for instruction for the reasons previously mentioned. In the electropherograms relating to the samples in the database, there were many peaks which were pull up. Usually they were in close proximity to two peaks being true alleles indicating that the donor of the sample is a heterozygote at that locus. In the 67 samples where Dr Davis identified pull up, she expressed the opinion that the possibility of the peak hiding a true allele could not be excluded which means that if two heterozygote alleles are present, the person who donated that sample would have been tri-allelic at that locus. As I understood her evidence, Dr Davis was not asserting three alleles at these loci, but expressed the opinion that it was a possibility. The possibility of a mixture could be excluded because the samples were given by single donors.

352 Mention has been made of the inheriting of one allele at each locus from each parent. A person can have three alleles. Dr Davis was not able to explain precisely how that condition can occur, although she did offer some possibilities, but it is known to forensic scientists. I accept that it is extremely rare. Dr Davis said that it was not common and was rare but would not accept that it was extremely rare. Scientists of the Forensic Science Service, in their discussion about interpretation of mixtures in an article which was published, refer to extra DNA bands appearing in rare cases due to chromosomal abnormalities such as chromosomal translocation, somatic mutations and trisomies[39]. Mr Pearman explained that this is a reference to tri-alleles. I accept his evidence that they are extremely rare. He had not seen one in his extensive experience.

353 I rejected the evidence of Dr Davis as to this matter. In my view, no competent expert qualified to interpret electropherograms and having a sound knowledge of DNA could seriously express the opinion that in one database of 414 samples, there could be 67 tri-alleles. I carefully considered her evidence so that I did not misunderstand it. I concluded that there were only two likely reasons for this evidence. The first is that Dr Davis had no understanding of how to interpret electropherograms and was simply wrong in her interpretation which would demonstrate lack of peritus in this context. The other reason is that she was not being truthful in her evidence to the Court. Whatever the reason, I rejected her evidence.

354 I also mention her evidence about there being 111 profiles where there null alleles or allelic drop out. As I understand her evidence she was referring to loci where the genotype was a homozygote. As has been mentioned, Dr Davis expressed the opinion that in that testing of the samples in the database, there had been 111 samples with possible null alleles and in some cases with two null alleles at the same locus. I accepted the explanation of Mr Pearman about the cause of this phenomenon. In an extremely rare case there may be preferential amplification to the extent that a primer does not bind to an allele so that only one allele is seen upon analysis. The allele is present but has not been observed.

355 I rejected the evidence of Dr Davis. I did not accept that it was possible that there could be such a larger concentration of rare events, that is null alleles, in one database and it is surprising that any competent scientist genuinely attempting to assist the Court could say so. Dr Davis said that she was not asserting that there were null alleles at each of these loci, but she said that if each of them was considered separately, a null allele could not be excluded. Even if that explanation is to be accepted, any competent scientist would reject that possibility if it is postulated to have occurred so many times in the one database. It seems that Dr Davis may have been using the expressions null allele and allelic drop out in parts of her evidence interchangeably. I accepted the evidence of Mr Pearman that allelic drop out was unlikely to occur with RFU levels of greater than 100. Dr Davis raised the possibility of allelic drop out when RFU levels were 500 RFU or greater. Mr Pearman rejected that possibility and I accepted his evidence. It might be said that if the possibility existed, a forensic scientist somewhere at some time would have reported that possibility. Once again, I thought that one of the same two reasons existed in this evidence. Dr Davis lacked understanding of the technology or she was not truthful.

356 It was the opinion of Dr Davis that the Profiler Plus system should not be used for forensic casework as it had not been shown to be accurate and reliable, the primer sequences had not been made known to the forensic science community and the Forensic Science Centre did not have sufficient expertise to use it appropriately.

357 Dr Davis said that she did not know of any scientific article or publication in which it is indicated that Profiler Plus, the 377, Genescan or Genotyper should not be used for forensic work. She said that there was no scientific article or publication in which the view that knowledge of the primer sequences is necessary.

358 Also Dr Davis expressed the opinion that in using Profiler Plus whenever there is an artefact, the sample must be re-run before interpretation using Genescan. She said that she had not written a published article to that effect. Various articles and publications admitted into evidence relate to interpretation where artefacts are present and I did not accept her opinion. I took the view that it also demonstrated a lack of understanding on her part of the interpretation process.

359 For these reasons I rejected the evidence of Dr Davis when it was in conflict with the evidence of Mr Pearman. In the end I did not have to decide whether she was qualified to give expert evidence about the matters in issue in the voir dire as she was not called to give evidence at the trial.

360 When discussing evidence of Dr Davis, I mentioned the Forensic Science Centre establishing the Profiler Plus Caucasian database. The samples were used because it was accepted that the donors were of the Caucasian race either because of their names or because they had said so. This is known as the "self declaration method".

361 The size of this database varied a little from locus to locus ranging from 778 alleles at the D7 locus to 824 alleles at the D8 locus which variation is not unexpected. The method used was to include a homozygote at a locus as two alleles. As has been mentioned, this database was forwarded to Dr Weir and Dr Buckleton in about the middle of 1999 for opinions as to validity. Other Australian databases were also sent to them from time to time for the same purpose. They noticed an anomaly with respect to one profile which was, in fact, not part of a sample but of an allelic ladder. Also a mistyping at one locus of a sample from a member of staff was detected. It should have been a heterozygote but was typed as a homozygote. It was decided to re-appraise the whole database.

362 At the time this database was established, the reporting guidelines of the Forensic Science Centre for the Profiler Plus system had not been established. It will be remembered that these guidelines required a level of 100 RFU for homozygotes and 75 RFU for heterozygotes. Some alleles were weak and would not have been included in the database if the guidelines had been in place. Initially the reading level of 50 RFU used for the Quadruplex system was used. These samples were re-analysed and the results read using the guidelines and, where necessary, changes were made. The corrected database was sent to Dr Weir and Dr Buckleton for their consideration.

363 This database was reviewed in April 2000. Three profiles were removed because it was ascertained that the persons concerned were not Caucasian. Two other profiles were also removed because they had been mistyped. By this time the Profiler Plus had been in use for some time and 40 additional profiles were added.

364 Following a further report from Dr Weir and Dr Buckleton, there was another review of the database. Allelic designations were changed for 19 loci out of a total of 3269. With additions, this database was comprised of profiles from 414 persons. The changes to allelic designations occurred because errors were detected in the reading of results shown in electropherograms upon analysis of the samples.

365 It is this final database which the Crown sought to use at the trial.

366 The prosecution also proposed to use the national Quadruplex database. The National Institute of Forensic Science ("NIFS") decided in 1993 to establish a national database for use by all Australian forensic science laboratories. Samples from Red Cross donors were typed using the Quadruplex system by laboratories in Queensland, New South Wales and Victoria and the results were collated by NIFS and presented at a workshop in July 1998. The Queensland and New South Wales laboratories profiled all of the four loci with the samples they inspected but the Victorian laboratory only profiled the THO1 locus. This database was relatively small with 314 samples at THO1 and 223 samples at the other three loci.

367 I accepted the evidence of Mr Pearman and Dr Buckleton that both of the databases were of sufficient size to be used in the calculations which were made and which the Crown sought to prove.

368 I accepted the evidence of Mr Pearman that the final version of the South Australian Profiler Plus database was sufficiently accurate for its purpose and I rejected the evidence of Dr Davis as to inaccuracies and possible inaccuracies. However, even after the final version of the database had been compiled, a few additional errors were detected. It was seen at the trial that when calculations were reviewed taking account of these alterations, the result made no practical difference.

369 In reaching my conclusions about Dr Davis, I had regard to all of her evidence and the other evidence during the voir dire. I carefully considered all of her extensive evidence about her qualifications, training and experience in order to see if she had acquired sufficient expertise about matters in issue and I concluded that she did not.

370 She not only has insufficient training and practical experience to interpret results of DNA analysis of STR loci using fluorescence technology with the 377, Genescan and Genotyper, but her evidence of interpretation of electropherograms clearly demonstrates that she lacks sufficient understanding of the system and the processes to qualify as an expert to that subject matter.

371 I did not regard her as an expert in the developmental and internal validation of fluorescence technology using multiplex or megaplex systems and again her evidence about those matters showed a lack of understanding of the systems and essential laboratory practice in their use.

372 Furthermore I simply did not accept her as a truthful and reliable witness. I rejected her evidence about matters in issue when it was in conflict with the evidence of Mr Pearman.

373 Dr Atchison was also called as a witness by the Defence and an objection was taken about his qualifications to express opinions about particular subject matter. Consequently, it is necessary to say something about his background, training and experience.

374 Dr Atchison is the Manager of the Molecular Biology Section at the Victorian Institute of Forensic Medicine. He is a molecular biologist and has worked extensively in various fields of forensic science for many years and, in particular, in DNA analysis. I accepted him as an expert suitably qualified to express opinions about many matters in issue on the voir dire, but because I did not accept him as a suitably qualified expert about all matters, it is necessary to say something about his background, training and experience.

375 He was awarded a Bachelor of Agricultural Science degree by the University of Adelaide in 1966, an Honours Degree in 1967 and the degree of Doctor of Philosophy in 1971. His thesis topic was molecular biology of viruses. He took the position of Postdoctoral Fellow at the University of California in Los Angeles until 1973. From 1974 to 1977 he worked as a research scientist with the Commonwealth (CSIRO) in Canberra. From 1977 until 1980 he was the Senior Tutor in the Department of Biochemistry at Monash University.

376 His fields of work until this time included molecular biology of plants, yeast and viruses involving extensive use of DNA and DNA technology. I accepted his evidence that there is little difference between the structure, mechanism and composition of DNA in plants and humans, the main difference being the sequence of the bases.

377 Dr Atchison extensively used DNA technology involving extraction, quantification and amplification of DNA and the separation of allele by electrophoresis. At Monash University, he taught undergraduates and supervised work of postgraduates in the field of molecular biology which involved teaching the structure and synthesis of DNA.

378 In 1980, Dr Atchison took the position of scientific officer at the State Forensic Science Laboratory in Victoria where he remained for about eight years. During this period he acquired considerable experience in criminal casework involving, initially, identification of individuals through serology testing as was common in forensic science laboratories in those days. In 1986 Dr Atchison, with others, developed techniques for the use of RFLP DNA technology in the Victorian laboratory. This method of DNA analysis was in its infancy at this time and, according to Dr Atchison, he had to develop procedures and systems for all stages of the process, including extraction of DNA, quantification and inspection. The inspection involved the DNA being run in a polyacrylamide and agarose gel with electrophoresis. The DNA fragments were then transferred to a nylon membrane and probes specific for genetic loci were used to look at variations. The probe was a short piece of DNA which had been labelled by either radioactivity or chemical means. By the time Dr Atchison left the State Forensic Science Laboratory in Victoria, RFLP DNA technology had not been used in casework.

379 In 1988 he was appointed the Scientist in Charge of Clinical Sciences, at what is now known as the Institute of Forensic Medicine in Victoria, which was established to assist the Coroner and has since remained in that position. It is a department within the medical faculty of the Department of Forensic Medicine of the Monash University. Dr Atchison also lectures to law and medical students in molecular biology as it relates to forensic science. His work includes the identification of human remains by DNA analysis and overseeing the operation of the molecular biology laboratory at the University. In 1989, he was appointed Honorary Senior Lecturer in Forensic Medicine at the University. Also, he was appointed by the Federal Attorney-General to undertake parentage testing and reporting under the Family Law Act 1975 (Cth).

380 Dr Atchison instituted RFLP DNA analysis for the Victoria Institute of Forensic Pathology. In 1990 he commenced working with PCR technology and introduced it into coronial work in 1991. At that time he inspected two loci, D1S80 and APOB. He devised laboratory procedures for the development of this technique. He had regard to published information about what primers should be used to inspect those loci and the conditions used to obtain results. He varied the conditions to obtain reproducible results.

381 In 1992 Dr Atchison began looking at four base repeat STR loci. He developed techniques to inspect a single locus and later multiple loci in about 1996. He introduced STR loci into his casework in 1993 or 1994. That work also involved cases from the police in Tasmania and the Australian Capital Territory at that time until at least when the former introduced STR fluorescence technology and the latter established a laboratory. The STR loci which he inspected were FES, vWA, CF13, D7, S460, D8639, CSF1PO, FABP and TH01. He also inspected the amelogenin locus. The D7460 and the D8639 are different loci than those inspected by the Profiler Plus system although on the same chromosomes, D7 and D8 respectively.

382 Dr Atchison used the chelex method of extraction. He did not quantify DNA until he developed a technique in about 1995 or 1996. He amplified DNA through the PCR process and used electrophoresis to separate the alleles. He used silver nitrate which reacts with DNA and the result is developed like a photograph to show the alleles which are then compared with an allelic ladder. This ladder had been compiled over the years and contains the alleles most common in the population. Each locus was inspected individually.

383 The criminal casework for the Victorian Police is undertaken by the State Forensic Science Laboratory in that State and not by Dr Atchison, however, he has undertaken criminal casework for laboratories in Tasmania and the ACT and occasionally for other States on behalf of the prosecution and also for the defence. As at May 2000, Dr Atchison estimated that he had undertaken DNA analysis in about 1350 cases of disputed paternity and about 350 criminal, coronial or civil cases. He said that since 1997 he undertook about 40 coronial cases and 150 paternity cases each year. He has given evidence extensively in Courts in New South Wales, Victoria, South Australia, Western Australia, Tasmania and the ACT. He has been consulted by the defence in 134 cases involving DNA analysis and has given evidence in 15 of those cases. He has written a number of articles, in conjunction with others, which have been published in peer-reviewed publications and has presented papers to various meetings.

384 Also, I accepted that Dr Atchison has read most of the relevant scientific literature regarding DNA analysis and the developing systems and techniques. He is a referee for an international scientific journal which is published in the United States of America specialising is in the publication of new techniques. He is also a referee for research projects for the SIDS Foundation.

385 Dr Atchison designed and developed his own primers. He explained what must be known for that purpose is the region outside the tandem repeat which is suitable to act as a primer and the temperatures at which the PCR will be undertaken. He said it is necessary to search a database to make sure the selected primers will not amplify other regions of the DNA. He optimised the PCR for the specific loci he targeted. He said that he selected loci following the TWGDAM guidelines which require that the sequences and locations of loci to be published. That approach was adopted by SAG in 1991. It was necessary to select loci which were genetically independent, this is achieved by choosing loci on different chromosomes or, if on the same chromosome, which were not in proximity.

386 Dr Atchison developed a multiplex system which analyses two groups of four of the eight loci which have been mentioned, amelogenin and APOB and D1S80. The four loci in each group are analysed simultaneously. He designed the PCR reactions and used the same primers. According to him, for use in a multiplex system the primers must be balanced. If not, they will interact with each other. The concentration of each of the primers must be adjusted accordingly so that each locus is producing the same intensity of result. If a locus produces a weak result, it may drop out. Dr Atchison also said that if the primers are not designed and optimised appropriately, they would bind to themselves producing either false bands or drop out of a locus. Having designed the primers, he arranged for them to be manufactured by a private company.

387 According to Dr Atchison, the more loci targeted at the same time, the greater the possibility of false reactions and artefacts. He said that an example is a primer from one locus may use a primer from another locus to produce a false fragment.

388 In developing these systems, Dr Atchison said that he observed the NATA standards and undertook validation in accordance with those standards.

389 The reasons why Dr Atchison developed these systems and did not acquire a Quadruplex system is that he was able to use the loci which he had previously used and about which he had considerable knowledge. He said he does not like the use of kits because they are developed by someone else and he would not know what was in the kit.

390 The Victorian Institute of Forensic Pathology was first accredited in 1991 for DNA analysis by NATA and again in 1996 by NATA and ASCLD.

391 According to Dr Atchison, it is necessary to publish in a peer-reviewed scientific journal the location of each locus on the chromosome as required by NATA. He said that the human genome mapping area is published on the Internet. He said that he selected loci which had been published in peer-reviewed literature and that it is a requirement of NATA that the sequences of primers are made known and published. He said that he undertook validation studies in accordance with the NATA standards, during the course of which he established the accuracy and reliability of those systems. He established protocols for that purpose which could then be used in casework.

392 Dr Atchison said that he tested about 100 samples from paternity cases and set up a database pursuant to the developmental validation standards of NATA. He also undertook the other developmental validation studies required by the NATA standards. The studies fell under the headings of reproducibility, mixed specimen studies (involving a mixture of DNA), analysis from specimens or "non-probative" material such as dirt, stone and cloth, analysis of non-human studies and sample quantity. In the last mentioned study, he said the lowest quantity of DNA he used from which he obtained a reliable typing was 200 picograms, but he said he would not use such a small quantity for casework. He expressed the opinion that in order to accept that a profile is accurate at a low level of DNA, the testing must be repeated about 100 times because of stochastic effect so that the probability of a correct result can be measured. He did not share the results of his validation studies with the scientific community as required by the NATA standard 5.2.1.4(g) because he understood that requirement only to be necessary if the system was to be used by someone else, which has not occurred.

393 I have mentioned those matters in some detail so as to indicate the extent of the knowledge and experience of Dr Atchison in DNA analysis, including in the use of multiplex technology which he designed himself and the reason for his opinion that primers must be made known to those who use them.

394 At no time has Dr Atchison used fluorescence technology, or any of the 310, 373 or 377 sequencers. He has not used Genescan or Genotyper, or any other computerised technology, although he has given evidence in some cases involving these procedures and instruments. In his work he is not concerned with RFU levels. He uses the silver staining method which involves manual inspection. Issues of pull-up and overloading do not arise in the technology used by him. He has never used the Profiler Plus. He has never conducted a low level study in regard to fluorescence technology. In about 99 per cent of his cases he is not concerned with mixtures and he said that he is loath to interpret mixtures. With the possible exception of some criminal casework which he undertakes, his work involves ample DNA. He has never undertaken any training or instruction in the interpretation of results of DNA analysis using fluorescence technology, Genescan or Genotyper.

395 On four or five occasions he has reviewed casework undertaken on the Profiler Plus system at the request of the defence. On one occasion within the last six months, he reviewed a case and gave evidence for the defence regarding Profiler Plus and Genotyper.

396 The Crown contested that Dr Atchison had expertise to express opinions about the Profiler Plus system and to interpret results obtained by use of that system. The Defence contended that although Dr Atchison has never used Profiler Plus or any semi-automated DNA analysis system, his qualifications training and experience enabled him to express opinions of value to the Court on matters relating to the Profiler Plus system. Consequently it was necessary to carefully consider the scope of his expertise with this system.

397 Dr Atchison claimed to have read scientific literature about Profiler Plus, the various instruments and the use of the software and to have attended meetings where they have been discussed. He said that in some of the cases involving Profiler Plus which he had reviewed, he had seen the Profiler Plus system in operation and discussed matters with the analyst. He has not analysed any of the samples in these cases with his own system. He said that there may not be sufficient DNA left after analysis for that purpose. There has only been one occasion where he gave evidence about results using Profiler Plus, this was recently in the Supreme Court of New South Wales in Rees to which reference has been made. It appears that was at the admissibility stage. In that case his evidence was not accepted. He expressed the opinion that the quantity of DNA was too low to obtain a reliable result and that a homozygote at a particular locus could not be called as such because stochastic effect, due to the low level of DNA, could be hiding another allele or alleles. The decision of Bell J in that case is not binding on me. She had to make her decision based upon the evidence before her, and I had to make a decision based upon the evidence before me. However, I did note that she found that Dr Atchison does not use the Profiler Plus system and had not interpreted electropherograms, presumably for the purpose of analysis.

398 Dr Atchison said that he did consider whether to use the Profiler Plus system in his laboratory. He attended a workshop in Brisbane in 1994 or 1995 where the technology was discussed and where he had some hands-on experience. He loaded only one sample on a 310 but, he said, there was instruction and discussion as to how the results should be interpreted. As his evidence progressed, he acknowledged that what was discussed at this workshop was not the Profiler Plus system because it was not available at that time.

399 When reviewing cases, Dr Atchison said that he has requested and seen the Genescan electropherograms for the purpose of checking whether conclusions of the analyses match the results. He said that he had done so in about 30 cases with an average of 10 samples in each case and on occasions some samples had been run more than once. He estimated that he had considered about 300 electropherograms over the years and that when considering them, he brought to bear all of his knowledge, training and experience as a scientist and DNA analyst, including what he had read in the relevant scientific literature.

400 However, later in his evidence he said that there have been about 30 cases where he had reviewed Genescan electropherograms and data and each case had about ten samples It will be remembered that Genescan was also used with the Quadruplex system. In Rees he gave evidence that he had looked at, and interpreted, in the order of 100 electropherograms. When this discrepancy was pointed out to him in cross-examination, he said it was a matter of rounding-off numbers and he could not remember the exact numbers. As has been seen, Rees was heard in June 2000 only about two months before Dr Atchison gave evidence in the present case. This discrepancy did tell against Dr Atchison's credibility and reliability to a limited extent. It did suggest a lack of care in giving his evidence and an exaggeration of his experience in the interpretation of electropherograms. Also this evidence revealed that he has had very little experience with the interpretation of results obtained by Profiler Plus.

401 Dr Atchison said that he had attended various meetings at which fluorescence technology was discussed and had read a manufacturer's manual regarding that type of technology although the evidence does not identify the manual. Dr Atchison also said that he had heard parts of many discussions with forensic scientists around Australia at various meetings during which fluorescence technology was discussed. He said there was discourse on the Internet involving forensic scientists about DNA analysis technology.

402 Dr Atchison claimed familiarity with the Profiler Plus system when it was proposed by SAG for use in the compilation of a national database. However, he said that he did not attend any meeting of SAG when the matter was discussed. He said he had read the scientific articles relating to the Profiler Plus system which were admitted into evidence and have been discussed and that he had read the manual for the system which was produced by Perkin Elmer and was also admitted into evidence.

403 He explained in a general way the manner of operation of the Profiler Plus system through the various stages which have been mentioned and also with respect to some of the earlier scientific semi-automated systems. It could be seen from this evidence that he did have a general understanding of how the Profiler Plus operates. However, the only part of the process used in the present case which he used was the extraction of DNA by the chelex method. In his work he quantifies the DNA either before or after the amplification stage. He said he was aware of the QuantiBlot and ACES systems for quantification and had considered, but did not use, in his laboratory. He acknowledged that the QuantiBlot system is widely used in the forensic science community.

404 Dr Atchison uses the PCR method of amplification which is similar to that used in the Profiler Plus system but he said that he was not aware of the primer sequences used by Perkin Elmer. According to him, there is little difference between his method of DNA analysis and the use of the 310, 377 and Genescan and Genotyper software. The essential difference is that in the system he uses, the analyst reads with the naked eye each allele in comparison to an allelic ladder whereas in the Profiler Plus system that reading is undertaken by the instrument used and the software. I thought that evidence was of significance when determining the extent of the expertise of Dr Atchison. As has been seen, the differences are much greater and more significant than he says. The analysis with multiplex technology, including Profiler Plus is not undertaken by the instrument and the software but by the analyst using them as aids for that purpose.

405 In the course of explaining why he rejected multiplex technology for his laboratory involving the 310, 373 or 377 he said that they produced artefacts and that it was not possible to tell the difference between an artefact and a true allele. He said that if there is some subjectivity in the assessment, there is a problem with scoring reliably as an artefact could be designated as an allele.

406 Later in these reasons I refer to other evidence of Dr Atchison and, in particular, to opinions which he expressed. I did regard him as a suitably qualified expert in order to express those opinions, but I did not accept him as an expert, on the basis of the evidence which he gave, suitably qualified to express opinions about the interpretation of results of DNA analysis by using the electropherograms produced by Genescan or Genotyper. I did not rule that he was not qualified to that subject matter but indicated, as his evidence progressed, that his qualification to that subject matter had not been established. Further attempts to qualify him did not succeed and I am able to say that upon the evidence given at the voir dire, he was not so qualified.

407 I have mentioned the extent of his experience in reading electropherograms produced by Genescan and Genotyper. It may be as little as only 10 cases involving 10 samples in each. He has not had any training or proficiency testing as would be required for an analyst. His work has not been checked by a suitably qualified analyst.

408 However, he is well qualified and with considerable experience in DNA science and analysis, including with respect to various forms of DNA analysis and procedures. He is knowledgeable and experienced in laboratory work, protocols and procedures and has considerable hands-on experience at the laboratory bench. I regarded him as an expert in those matters.

409 Dr Atchison gave evidence about his attendance at SAG meetings and the discussions which he had with forensic scientists at those meetings, including informed discussions about fluorescence technology and the Profiler Plus system. These matters were advanced, at least in part, to establish knowledge of those matters on the part of Dr Atchison as he has not had practical experience with them. He said in his evidence-in-chief that he was a member of SAG in 1991, was still a member and had attended all, except two, meetings since then. One of the meetings he did not attend was the meeting at which the presentations were made by the representatives of Perkin Elmer about Profiler Plus and by the Forensic Science Service about the SGM and at which the recommendation was made to acquire Profiler Plus. Dr Atchison said a representative of his laboratory attended. However, in cross-examination he acknowledged that he did not attend the SAG meetings in 1995, 1996, 1997 and 1998.

410 He agreed that fluorescent technology was being used in Australia in about 1994 or 1995. In fact, as has been seen, it was being used by the Forensic Science Centre in 1994. He also agreed that since that time the only SAG meeting which he attended was in 1999. In Rees the effect of his evidence was that he attended yearly meetings of "all of the laboratories in Australia" and that these issues were discussed at the meetings. In cross-examination in the present case he acknowledged that he was referring to SAG meetings and that he did not tell the Court in Rees that he had not attended four of the last five meetings. Dr Atchison said that he may not have been given the opportunity to answer a question in Rees to say that he had not been to all of the meetings and that in the present case he was mistaken when he said that he had been to all meetings since 1991 except two of them.

411 I found these explanations to be unsatisfactory. I concluded that Dr Atchison had not given truthful and accurate evidence about his attendance at these meetings and had attempted to establish knowledge of fluorescence technology and Profiler Plus by the inaccurate evidence which he first gave. This is a matter which reflects adversely upon his credibility and his reliability as an expert witness. A reliable expert must always, if asked, accurately relate the basis of his or her opinions including the source of knowledge and the experience of the expert about the particular subject matter.

412 In his evidence-in-chief, Dr Atchison related an incident which, if true, tends to indicate a perception by some scientists of the unreliability of Profiler Plus. He said that at the SAG meeting in 1999, scientists from a number of laboratories using the Profiler Plus kit reported that the kit was producing a large number of artefact bands and there had not been any explanation for that matter from Perkin Elmer although Perkin Elmer had suggested that it might be occurring at the denaturation stage of preparing the PCR product. However, Dr Atchison said, laboratories had undertaken tests and found that explanation not to be the cause. He said that the scientists had supplied data relating to this problem which was sent to Perkin Elmer for comment with a request for it to change the quality assurance programme. The SAG meeting discussed why the spurious peaks were being produced by Profiler Plus. He said that the problem had been encountered by the forensic science laboratories in Tasmania, South Australia and New South Wales. He could recall the representative for the laboratory in Tasmania speaking about the matter but he could not recall if representatives from the other two laboratories spoke or if Mr Pearman attended the meeting. He said that these laboratories were desperate for an answer and that by the time of his giving evidence, he had not been made aware of any response from Perkin Elmer. Dr Atchison said that he had raised this matter in his evidence because other scientists had found problems with the reliability of Profiler Plus which they found to be unacceptable. If this evidence is true, it may be seen that it is a matter of importance in considering whether Profiler Plus has been accepted by the forensic science community as accurate and reliable for DNA analysis.

413 The minutes of this SAG meeting in relation to this matter record the problem as being "blips in the baseline" when using the 310 and the 377 and that Perkin Elmer were interested in resolving these types of problems but needed complete information and data to be able to do so. It was decided that the laboratories which had experienced the problem would contact a designated scientist at the Tasmanian laboratory and provide him with relevant information by 18th July 1999 and that he would collate the information and draft a letter to be sent to Perkin Elmer and signed by the secretary of SAG.

414 The letter to Perkin Elmer was admitted into evidence and was written on 28th September 1999. The problem as described in the letter is broad blue and green background peaks in the negative controls and particulars were provided. There had been no such problem in the baseline with early kits, but additional peaks had occurred at around 100-120 base pairs and 210-230 base pairs in three batches of the kit when using the 310. At the Forensic Science Centre, it was only noticed when using the 310 which was not used in the tests relevant to the present case. It is unnecessary for present purposes to set out the balance of the letter. There was nothing in the minutes of the meeting or the letter indicating that scientists were desperate for an answer. It seems that the matter was resolved.

415 Mr Pearman's evidence, which I accept, is that with this artefact, the shape of the peak was different from that of a true allele but if the artefact could be obscuring a true allele, the sample would be re-run. Each kit was validated when acquired and if these peaks appeared too high and there was any risk if mistyping, the kit was rejected. He did not think the kit was unusable.

416 In my view, Dr Atchison exaggerated the significance of this matter in order to establish that Profiler Plus was unreliable and was regarded as such by scientists in Australia. The reports from the scientists to SAG establish no such thing. This is a matter which bears upon whether Dr Atchison's evidence should be accepted. There was simply no basis for the assertions of unreliability or that scientists were desperate for a resolution of the problem.

417 At no time before giving evidence and raising this matter did Dr Atchison check with any of the scientists as to what response had been obtained from Perkin Elmer or if these artefacts were still appearing. He did not discuss the matter with any scientist from a laboratory which was using Profiler Plus. When pressed in cross-examination, he said that he had spoken to the scientist from Tasmania on various occasions but he could not recall if this matter was discussed. He said he did not think it was appropriate to enquire of the various scientists in Australia using Profiler Plus as to whether the matter had been resolved before he gave this evidence. His explanation is that he assumed Mr Pearman would be giving evidence.

418 I found all of this evidence of Dr Atchison to be a significant reflection upon him. He was prepared to make serious but inaccurate assertions without checking to see if the problem still existed, which does not reveal a sound scientific approach. In cross-examination he agreed that he could not say if forensic scientists were of the opinion that these artefacts did not affect their ability to interpret results obtained through Profiler Plus.

419 Later in these reasons I discuss the significance of testing low levels of DNA for the purpose of human identification. It will be seen that there has been a considerable volume of scientific publications about this matter and at what low levels reliable results may be obtained. Low levels in this context means various levels below 1 ng of extracted DNA. Levels well below 1 ng are widely reported as sufficient for reliable results using Profiler Plus and earlier technology, including Quadruplex.

420 In his evidence-in-chief Dr Atchison said that if the level of DNA was below 1 ng, no system of DNA analysis would work and that this was a widely recognised and accepted opinion. He said that human interpretation was irrelevant as there would be errors whatever the interpretation. When he was asked if there was any other opinion apart from his opinion, he said this matter had been known for a number of years as being a problem and had been published several times and was due to stochastic effect. He then went on to say that 1 ng was not the absolute figure as it depended upon how many loci were being inspected at the same time. As will be seen, these opinions are contrary to what is published in relevant scientific publications and the evidence discloses that they are contrary to the accepted view of the forensic science community.

421 In cross-examination Dr Atchison said that there was opinion contrary to his opinion but then said that he did not know if anybody did have a contrary opinion. Dr Atchison then went on to say that 35 pg of DNA were needed for each locus. He would not acknowledge that those laboratories which test at a lower level must have an opinion contrary to his opinion.

422 Dr Atchison said earlier in his evidence that he had read most of the scientific articles which had been admitted into evidence. In cross-examination he was reminded of evidence he had given in the case of Rees. He had been shown a table which set out the levels of DNA which are established at the quantification stage and used in analysis at each of the forensic science laboratories in Australia. He agreed that it had been put to him that laboratories in Australia were testing when quantification had not shown a result. Also, he was shown the letters from managers of these laboratories which were admitted into evidence in the present case and which give information of a similar effect.

423 In my view, Dr Atchison had no basis for the opinions which he expressed. Clearly, the Australian laboratories do undertake analysis below 1 ng of DNA and, it may be accepted, that they do so because the scientists have a different opinion to that of Dr Atchison. He was made aware of that matter in Rees before he gave evidence in the present case. If he had read the articles admitted into evidence in the present case, he would have been aware of opinions of scientists overseas which are contrary to his opinion. He made no enquiry of the Australian laboratories before he gave evidence.

424 I thought that there were two possibilities for the giving of this evidence. One possibility is that Dr Atchison was trying to mislead the Court in an attempt to show that Profiler Plus is unreliable. The other possibility is that he ignored the well known opinions of others because he does not agree with them and was prepared to say that there were no contrary opinions. Whatever is the explanation, this evidence indicates unreliability on his part as an expert and as a witness.

425 Mention has been made of the evidence of Dr Atchison that about 35 pg of DNA per locus is required for analysis when inspecting more than one locus simultaneously. He also said that it was well accepted that the 35 pg per locus had to be amplified six times which means six times that amount. On that basis, for Profiler Plus, which inspects ten loci simultaneously, 2100 pg or 350 pg would be required for each of the six amplifications. Dr Atchison said this view was expressed in published literature but no such literature was produced in examination-in-chief. He confirmed this opinion in cross-examination and said that this level was the absolute minimum required to avoid stochastic effect. He then agreed that none of the articles admitted into evidence expressed that view, or that the amount of DNA required increased depending upon the number of loci being inspected.

426 He acknowledged in cross-examination that he had based this opinion upon a published article written by French scientists[40]. This article was referred to as the Taberlet article after one of the scientists. They reported their development of a mathematical model to account for stochastic effects when pipetting template DNA in a very diluted DNA extract. They had performed computer simulations. They tested this model by laboratory experiments using DNA extracted from bear faeces. The conclusion reached by the scientists is expressed as follows at p3193:

"Based on the results of the computer simulation, we estimated that at least 5U template DNA/locus (35 pg in mammals) are necessary to follow the procedure outlined in Figure 4 and to achieve a genetic typing with a 99% confidence level (this corresponds to 10 independent PCRs, with 5U amplifiable template DNA/reaction)."

The Figure 4 is a flowchart which need not be repeated for present purposes, but which is based upon separate amplification ten times per locus with individual analysis each time.

427 The report is expressed in technical terms and it is possible to be misunderstood without the assistance of a reliable expert. However, I do not think the article supports the proposition claimed by Dr Atchison that 350 pg of DNA is required when using a 10 locus multiplex. There was no scientific publication introduced into evidence to support such a proposition beyond the report of this mathematical model. No forensic scientist makes such a claim apart from Dr Atchison. Furthermore, it appears that the scientists in the Taberlet article did not use multiplex technology but undertook analysis of each amplification for each locus separately.

428 In re-examination Dr Atchison said that the mathematical model in the Taberlet study was based upon a model used in a study in 1992 by mathematicians and scientists at the University of Southern California at Los Angeles. The article reporting this study is known as the Navidi article[41]. The authors had developed a statistical procedure to determine whether a genotype could be conclusively assigned to a DNA sample where small amounts of DNA were analysed by inspecting each locus separately. The amount of DNA was not expressed by weight but by the number of fragments and varied from 10 fragments to 500 fragments. The authors concluded that this type of multiple-tube procedure could provide "reliable DNA typing in cases where the amount of DNA was too small to be reliably typed with a conventional or one-tube procedure".

429 Dr Atchison described this study as using a probability theory and that it was a theoretical study as opposed to a practical study. He acknowledged that none of the forensic science laboratories in South Australia, Victoria or New South Wales test each sample six times and that he did not know about the other Australian laboratories.

430 There was simply no basis for the assertion by Dr Atchison that it was widely recognised and accepted that no system could analyse DNA accurately below 1 ng of DNA. There is no basis established in the scientific literature for the opinion that a minimum 35 pg of DNA is required for each locus when using multiplex technology. Indeed, scientific publications admitted into evidence reveal the contrary.

431 I did not think Dr Atchison had any sound basis for the opinions which he expressed on this matter and if he was familiar with the scientific publications and the experience in forensic science laboratories, he could not have genuinely expressed the opinions which he did express. His evidence on this matter was unreliable and I rejected it. It reflected upon his competence as an expert.

432 During his evidence, Dr Atchison was prepared to express opinions about serious matters concerning the competence of the Forensic Science Centre without sufficient information or any enquiry.

433 He had examined the case file of the Forensic Science Centre with regard to the accused. He was shown the handwritten results of testing of samples on 29th January 1998 on the Quadruplex. The result recorded for the positive control is written as 4 4 at the F13 locus. When the same control was run on 30th January 1998, the result is recorded as 4 7. According to Dr Atchison, the different result indicates a failure of the control which could be due to the primers, the conditions for amplification or the electrophoresis being incorrect. He did not ask the Forensic Science Centre for an explanation. No reason was recorded on the written record.

434 According to Mr Pearman, this particular positive control had been run for many years and had never given a result of 4 4. He said, and I accepted, that the recorded result of 4 4 was a transcription error. He confirmed that opinion upon enquiry at the Forensic Science Centre. I add that when this positive control was run on 19th February 1998 and 27th February 1998 with other samples, it was typed as expected as 4 7 which is apparent from reading the same file.

435 It may be seen that Dr Atchison was prepared to suggest significant error in the DNA testing process without any enquiry of the laboratory. It reflects adversely upon Dr Atchison as a scientist and an expert witness that he was prepared to reach an opinion adverse to the laboratory and the scientists without having made a fundamental and obvious enquiry or considering the most obvious explanation, namely a transcription error.

436 Mention has been made of the purpose of the reagent blank sample. It will be remembered that it contains everything that is in the DNA sample to be analysed except DNA and operates as another control. The case file for the accused shows that when samples were run on the Quadruplex on 27th February 1998, the reagent blank contained DNA at each of the four loci which, according to Dr Atchison, shows contamination in the laboratory.

437 At the bottom of the page containing the relevant records, it is written, in relation to the reagent blank result "reload sample may be overflow from lane 14". The alleles shown in the record for the reagent blank were mainly the same as for the next lane in which a sample with DNA had been run. Once again Dr Atchison offered his opinion without seeking an explanation from the laboratory.

438 Mr Pearman said that in his opinion the presence of DNA was due to an overflow from the next lane because the alleles are the same, although one allele at F13 did not type, and they were weak results detected at low RFU levels. Overflow occurs at the loading stage when the scientist inadvertently blows the last of the product from the pipette tip and causes an air bubble with a small amount of DNA floating to the adjacent well. I accepted that explanation.

439 Dr Atchison said that it was not necessary to check the written explanation with the Forensic Science Centre before giving evidence that there was contamination in the laboratory.

440 In a run of samples on the Quadruplex on 19th February 1998, there is a record in the case file of the presence of allele 8 at the F13 locus which Dr Atchison said showed that there was contamination at the PCR stage. What had to be done, he said, was to discard the reagents in the laboratory, start again with fresh reagents, and perhaps change the procedures to see that it does not happen again. Dr Atchison did not make any enquiry of the laboratory before expressing this opinion.

441 Mr Pearman investigated the matter and looked at the Genescan electropherograph for the ROX, which is the internal sizing standard and which, as with the Profiler Plus, is run in each gel. He explained that the ROX standard is 200 base pairs in size which corresponds to allele 8 at F13. In this instance the baseline was flat and the ROX peaks can cause pull up if they are slightly higher than normal. The pull up peak shown in the record was at 24 RFU which is part of the baseline. He said that the baseline was particularly clear which explains why that peak stood out. I accept that explanation. Mr Pearman was a reader on this occasion. When this explanation was put to Dr Atchison, he said that if it was pull-up from the ROX, then there was no contamination.

442 These matters reflect adversely upon Dr Atchison for the same reason. He was prepared to express opinions about serious matters adverse to fellow scientists and, inferentially, their competency without making any enquiry. His explanation was that having read the case file, he reported these matters to the accused's legal advisers and it was for them to seek explanations from the Forensic Science Centre and not him. That evidence is no answer to the criticism. It is his preparedness to express opinions without enquiry which is significant. He was prepared to make adverse criticism of the Forensic Science Centre without a sound factual basis. In each instance there was a simple and, in my view, rather obvious explanation. I regarded the evidence about those matters as revealing that Dr Atchison had not adopted ordinary and obvious scientific method with the consequence that I did not regard him as a reliable witness who could assist the Court in many of the matters which were the subject of his evidence. Furthermore these matters indicate a lack of balance on his part in that he was prepared to assume contamination when another possibility was open. Indeed, he acknowledged that transcription error had occurred in his own laboratory.

443 Another example of the approach of Dr Atchison being inappropriate, in my view, is with respect to the South Australian Profiler Plus Caucasian database. I have mentioned that the database was revised with corrections on occasions. According to Dr Atchison, any system which allows a scientist to interpret different profiles in a different manner on different occasions should not be used. I doubt that there could be any criticism of such a statement in general terms, but it was made in the context of the database and once again Dr Atchison was prepared to express opinions without any enquiry or information as to the reason for the corrections.

445 Dr Atchison expressed a view about stochastic effect which I reject on the basis of Mr Pearman's contrary evidence and reports contained in various articles and publications. According to Dr Atchison, a level of DNA must be established at which there cannot be stochastic effect and there should not be testing below that level. He said that level could only be established after testing the particular quantity of DNA probably 100 times so that it can be seen how often a wrong result is obtained. In that way the probability of obtaining a correct result could be ascertained. He explained that if, say, one nanogram of DNA was used, there might be a 99 percent chance of getting a correct result. As the amount is decreased, the percentages of a correct result become less and less until, say, 30 picograms is reached where there would be a 95 per cent chance of getting an incorrect result. He went on to say that if the amount of DNA required to obtain a reliable result is to be ascertained, the tests would have to be repeated hundreds of times. No scientific literature was presented to support this view. It suggests that stochastic effect will be present in all cases under a particular quantity of DNA which is contrary to the views of forensic scientists as will be mentioned shortly.

446 Also, Dr Atchison expressed the view that forensic scientists tend to use a system because others are using it and do not assess reliability of the system for themselves. Such a statement demeans forensic scientists. It may be thought to have been an unguarded remark but it was explained in cross-examination as meaning some forensic scientists would have undertaken validation, but most would not have done so. Given the existence of the TWGDAM Guidelines and the SWGDAM Guidelines in the United States of America relating to validation which are mentioned shortly and the accreditation of laboratories undertaken by ASCLD in that country, it would be surprising if laboratories were accredited but the forensic scientists had not undertaken validation in accordance with the Guidelines. The same may be said about forensic scientists in Australia and the need to comply with NATA standards for accreditation. I did not accept this evidence of Dr Atchison.

447 There were many other criticisms of Dr Atchison and his evidence and it is not necessary to repeat them. I had regard to all of his evidence and to the opinions which he expressed. I concluded that he was qualified to express opinions about DNA and DNA analysis, what is required in the validation of new DNA technology, and appropriate laboratory procedures and controls. His lack of experience with fluorescence technology is a matter of considerable significance. His training and experience qualified him to express opinions about the theory of this technology, the relevant science which it employs and the presence and significance of artefacts in DNA technology generally and as produced by fluorescence technology. However, I did not regard him as being qualified to express opinions about the interpretation of electropherograms produced by Genescan and Genotyper software. He has had no practical experience with fluorescence technology. He has had no training or proficiency testing in the interpretation of results produced by this technology. Given that interpretation is a crucial part of the process, that lack of experience and training is decisive.

448 Whilst I accepted that Dr Atchison is highly qualified with considerable experience regarding DNA analysis, I did not think he was balanced and impartial in critical features of his evidence as I have mentioned. For the reasons which I have given, I did not accept his evidence when it was in conflict with the evidence of Mr Pearman.

Should the Forensic Science Community have accepted Profiler Plus?

449 Having mentioned my conclusions about the witnesses, it is appropriate to consider the contention of the Defence that there should not have been general acceptance of Profiler Plus by the forensic science community for two principal reasons. They are to be found in the further particulars which have been mentioned.

450 As has been seen, the first matter is that the scientific community cannot accept the Profiler Plus because it has not been able to test it as Perkin Elmer has refused to make available the primer sequences for each locus.

451 Mention has been made of the use of primers at the amplification stage, their purpose and that they are location specific. Considerable attention was given at the voir dire to Perkin Elmer having refused to disclose the sequences of the repeats of these primers.

452 Scientific articles and publications admitted into evidence establish that over the years since STR fluorescence technology was introduced, the chromosomal locations and primer sequences for each locus as they came to be used in the various systems have been published. I have mentioned some of them. They include those inspected by Profiler Plus and consequently have been available to the forensic science community. The manual provided by Perkin Elmer with the Profiler Plus when it was released to the market also published this information in the form of reference to scientific articles and publications. In 1999 the forensic science laboratory of the Royal Canadian Mounted Police published this information[42].

453 The forensic science community has had the opportunity to use the various systems with the knowledge of the particular primer sequences but I accept the evidence of Mr Pearman that when Profiler Plus was developed, the original primer sequences, or some of them, were used as a starting point and were modified and those modifications have not been published. So, it is in that sense that they have not been published. It is Mr Pearman's understanding that Perkin Elmer selected the loci as had been published and modified the primers so that they worked better together and also to ensure that the loci were spaced apart.

454 I am satisfied that Perkin Elmer has been requested on occasions to disclose the modified primer sequences but has refused to do so because it asserts that they are trade secrets. Ms Roby, a senior forensic specialist at Perkin Elmer, made that assertion in a declaration on 11th January 2000 in pre-trial proceedings in the Superior Court of the State of California in Dishmon. A letter from attorneys acting for Perkin Elmer dated 18th September 2000, admitted into evidence in the present case, asserts that Perkin Elmer has agreed to release the primer sequences to parties in various cases in the United States of America on a confidential basis protected by the Courts. Dr Davis is one of the persons who has received the primer sequences but she said she had not considered them because of her need to travel to Australia for the purpose of this case. Whether or not she could have examined them prior to the completion of the voir dire hearing was not made known to me. At all events, I accept that the modified primer sequences, and perhaps any modification to the chromosomal locations, have not been released to the forensic science community at large for consideration.

455 It was contended by the Defence that there has been no publication of the location of each locus on the chromosome which prevents, or should prevent, acceptance of Profiler Plus by the relevant scientific community but I reject that contention. The evidence does establish the chromosomal locations of each locus inspected by Profiler Plus and the publication of this information. Although the evidence is not clear, it is possible that the modification of the original primer sequences, or some of them, has necessarily resulted in some alteration in the chromosomal locations of all or some of the loci. Mr Pearman was inclined to accept that possibility and I proceeded on that basis.

456 In order to consider the significance of these contentions, it is necessary to mention evidence of Dr Davis, Dr Atchison and Mr Pearman.

457 According to Dr Davis, it is essential that the primer sequences and chromosomal locations be released to the scientific community, the former so that any problems with amplification such as mutations may be predicted and the latter so that, if seen in sites on chromosomes with mutations, they can be avoided. Dr Atchison expressed the opinion that PCR STR technology cannot be used unless the sequence of the DNA is known. I have earlier mentioned his evidence about this matter in brief terms. I add a little more of his evidence which will suffice for present purposes. He said that the primers must be designed to work appropriately. If they do not work as required, they might produce an amplified product but the process would be synthesising something which is spurious. He said that it was necessary to know the sequences, to ascertain whether or not they might interfere in certain conditions with other loci or other primers. Both of these witnesses expressed the view that without the primer sequences being known, which also involves disclosure of the chromosomal locations, the Profiler Plus system should not be used.

458 This proposition is said to gain support from the TWGDAM Guidelines and the NATA standards, both of which provide for validation of DNA analysis procedures. There are two stages of validation of DNA technology, validation at the developmental stage by the manufacturer and validation by a laboratory before using the new technology. The TWGDAM Guidelines and the NATA standards are of similar effect although not expressed in precisely the same terms. In the section relating to developmental validation, the TWGDAM Guidelines provide:

" 4.1.4 The DNA primers, probe(s), or oligonucleotides selected for use in the forensic DNA analysis must be readily available to the scientific community.

4.2 During the development of a DNA analysis system, basic characteristics of the loci must be determined and documented (Baird 1989; AABB Standards Committee 1990)

4.2.2 Gene Mapping - The chromosomal location of the polymorphic loci used for forensic testing shall be submitted to, or recorded in the Yale Gene Library or the International Human Gene Mapping Workshop.

4.2.3 Detection - The molecular basis for detecting the polymorphic loci shall be documented in the scientific or technical literature.

4.2.3.2 For PCR, this includes the primers and probes, if used.

4.4 Specific Developmental Validation of PCR-Based DNA Procedures.

4.4.1.1 The PCR Primers must be of known sequence."

459 I was informed that chromosomal locations are no longer recorded in a gene library at Yale and are available in the scientific literature and on the Internet at a web site entitled "The Co-operative Human Linkage Centre".

460 A copy of the NATA standards published in January 1999 were admitted into evidence. I accept the evidence of Mr Pearman that the standards in operation at the time the Forensic Science Centre acquired the Profiler Plus were much the same.

461 In the context of developmental validation, the NATA standards are:

5.2.1 General Considerations for Developmental Validation of DNA Analysis Procedures

5.2.1.1 Validation is the process used by the scientific community to acquire the necessary information to assess the ability of a procedure to obtain a desired result reliably, to determine the conditions under which such results can be obtained and to determine the limitations of the procedure. The validation process identifies critical aspects of a procedure which must be carefully controlled and monitored.

5.2.1.2 Validation studies must have been conducted by the DNA laboratory or scientific community prior to adoption of a procedure by the DNA laboratory.

5.2.1.3 The DNA primers, probes or oligonucleotides selected for use in the forensic DNA analysis must be readily available to the scientific community.

5.2.1.4 The validation process must include the following studies:

(a) Population Studies - Establish population distribution data in relevant ancestral groups.

(b) Reproducibility - Prepare dried stains using body fluids from donors of known source and analyse to ensure the stain specimens exhibit accurate, interpretable and reproducible DNA types or profiles that match those obtained on liquid specimens.

(c) Mixed Specimen Studies - Investigate the ability of the system to detect the components of mixed specimens and define the limitations of the system.

(d) Studies on Nonprobative Material - Examine DNA profiles in nonprobative stain materials. Compare the DNA profiles obtained for the known liquid blood versus questioned blood deposited on typical crime scene materials.

(e) Nonhuman Studies - Determine if DNA typing methods designed for use with human specimens detect DNA profiles in stains from representative nonhuman sources.

(f) Sample Quantity - Where appropriate, establish the quantity of DNA needed to obtain a result.

(g) It is essential that the results of the developmental validation studies be shared as soon as possible with the scientific community through presentations at scientific/professional meetings. It is imperative that details of these studies be available for peer review through timely publication in scientific journals.

During the development of a DNA analysis system, basic characteristics of the loci must be determined and documented.

5.2.2.1 Mutation - The DNA loci used in parentage testing must have a frequency of mutation and/or recombination of The reference in 5.2.4.2 to the measurement of fragment lengths in a reference to different DNA technology, namely Restriction Fragment length Polymorphism ("RFLP").

494 As has been seen, the Forensic Science Centre complied with the requirement of testing known samples provided by an external agency, namely NIFS.

495 I now turn to the other validation studies undertaken by the Forensic Science Centre. I do not propose to canvass the vast amount of evidence led by the Defence relating to these studies, although I mention my conclusions about each of the studies. I accept the evidence of Mr Pearman that each study achieved its purpose and the combined effect of all of them, together with the substantial amount of casework undertaken by the Forensic Science Centre which permitted the results of the studies to be monitored on a day to day basis, established the reliability and accuracy of Profiler Plus in the hands of the scientists at the Centre and the suitability of the thresholds which were established. I rejected the evidence of Dr Davis to the contrary. I formed the view that her criticisms were based upon a lack of understanding of the technology and how to interpret results or, in some instances, a lack of truthfulness. I also rejected the evidence of Dr Atchison. Consequently I found that the Forensic Science Centre did carry out appropriate internal validation and had complied, in practical respects, with the NATA standards in that regard.

496 It is to be remembered that whilst Mr Pearman and other scientists at the Forensic Science Centre were greatly experienced in the use of STR fluorescence technology and had validated and extensively used the Quadruplex, Dr Davis and Dr Atchison had no such experience.

497 The Forensic Science Centre undertook appropriate and extensive validation studies which were described as a casework study, a sensitivity study, mixture study, a baseline study, a low level study and a peak height study. A considerable amount of evidence was adduced by the Defence regarding these studies with a view to demonstrating that Profiler Plus had not been appropriately validated internally by the Forensic Science Centre. Consequently, it was submitted by the Defence that there had not been compliance with the NATA standards and therefore the impugned evidence was inadmissible.

498 Before considering the internal validation studies, it is necessary to say something about the approach of forensic scientists, including those employed by the Forensic Science Centre, to threshold levels for inclusionary purposes particularly when using small quantities of DNA. The amount of DNA extracted from the two stains in the samples KO22B and KO22C was undoubtedly very small. As has been mentioned, Mr Pearman estimated that there was about 100 picograms in KO22B and about 150 picograms, or perhaps more, in KO22C. Paragraph 4.1.5.10 of the TWGDAM Guidelines provides, in the context of developmental validation, that where appropriate the quantity of DNA needed to obtain a reliable typing result should be established. There is a similar provision in the NATA standards for developmental validation: see Paragraph 5.2.1.4(f).

499 I have mentioned that the QuantiBlot and ACES systems of quantification are inaccurate and so when using sensitive STR fluorescence technology such as Profiler Plus with 377 and interpretive software, forensic scientists have fixed reporting standards based upon RFU levels and not on quantification. The basis of this approach is simply that, in general terms, the lower the amount of DNA the lower the amount of fluorescence, and consequently, RFU level. Extensive testing has occurred around the world to establish safe reporting levels. Throughout its extensive use of the Quadruplex, the Forensic Science Centre established a reporting level of 50 RFU, which means that if a peak is of a lower RFU level, even if it was an allele, it would not be reported for inclusionary purposes as a matter of policy. After validation of Profiler Plus, the Forensic Science Centre established reporting levels of 100 RFU for homozygotes and 75 RFU for heterozygotes. The Forensic Science Centre would not call peaks at lower than those levels for inclusionary purposes but would call them at lower levels for exclusionary purposes. That is not to say that any peak at those or higher levels would necessarily be called as an allele for the purpose of genotyping. If at or above those levels, the analyst must interpret them and decide whether they could safely be called alleles.

500 I mention some particular matters set out in the Perkin Elmer manual. In the manual it is reported that the amplification kits are manufactured by Perkin Elmer and they are carefully tested to ensure that they perform according to specifications and are free from contaminants. The recommended range of DNA for amplification is 1.0 ng-2.5 ng but it is reported that the kit components have been used successfully to type samples containing less than 1 ng of human DNA. The following also appears:

"When the total number of allele copies added to the PCR is extremely low, unbalance amplification of the two alleles of a heterozygous individual may occur. This is due to stochastic fluctuation in the ratio of the two different alleles. The PCR cycle number and amplification conditions have been specified to produce peak heights of 150 RFU are consistently obtained when approximately 250-500 pg of DNA is added to the PCR amplification."

"Minimum 'Establish quantity of DNA needed to obtain a reliable

Sample result.' (referring to the TWGDAM Guidelines)

The AmpF_l_STR Profiler Plus PCR Amplification Kit has been optimized to amplify and type approximately 1.0 - 2.5 ng of sample DNA reliably. The suggested minimum peak height threshold for detection and assignment of genotypes is 150 relative fluorescence units (RFU) (see pages 9-33 to 9-34). In the Human Identification Group's laboratory at PE Applied Biosystems this amount is obtained from between 250 and 500 pg of AmpF_l_STR Control DNA 9947A. These results have been obtained on both the DNA Thermal Cycler 480 and GeneAmp PCR System 9600. Analysis was performed using the ABI PRISM 377 DNA Sequencer and GeneScan Analysis 2.1 Software."

It was submitted by the Defence that this was the standard established by the manufacturer and RFU levels should not be less than 150 RFU. I rejected that submission. There is no basis in the evidence to take that view. Perkin Elmer was reporting the result of the developmental validation in the optimum sense. Also at page 7.6 and 7.7 of the manual, Perkin Elmer set out what is required to set up the analysis parameters and the following is included:

"We generally recommend a Peak Amplitude Threshold of 150 RFU for Blue, Green and Yellow to avoid typing low amounts of input DNA (see 'Effect of DNA Quantity on Results' on page 9-33). However, when GeneScan data will be genotyped automatically using the Genotyper® AmpF_l_STR Profiler Plus template file, lowering the Peak Amplitude Threshold to a value less than 150 RFU for Blue, Green, and Yellow (we recommend as low as 50 RFU) will allow the Genotyper software to identify low signals automatically (see page 10-8)."

501 I did not regard these passages in the manual as establishing a standard or protocol asserted by Perkin Elmer that reportable levels should not be less than 150 RFU. When all of the references are considered, it is plain that Perkin Elmer reported what it saw as the optimum position but acknowledged that reliable results could be achieved at less than 1 ng of DNA and that laboratories using Profiler Plus should establish their own minimum peak height thresholds based upon their own results using low levels of DNA. As can be seen, Perkin Elmer had found that levels greater than 150 RFU occurred with amounts of DNA as low as 250 pg.

502 The protocol of the laboratory of the FBI was admitted into evidence. It was published in January 1999. The evidence did not establish whether this protocol was current, but for present purposes, I assumed that it was. This laboratory has fixed a minimum level of 200 RFU for the inclusionary purposes. It is suggested that this standard, adopted by the FBI, demonstrates that the forensic science community has not accepted thresholds below those recommended by Perkin Elmer.

503 I did not accept that submission. Each laboratory must determine its own levels for reliable genotyping. The FBI established a level of 200 RFU when using a 310. The evidence does not establish that it has established a level for the 377 which was used by the Forensic Science Centre in the present case. RFU levels must, of course, be established for the particular instrument which is used.

504 Recently scientists at the laboratory of the FBI have determined RFU levels for the amplification and typing conditions of the 13 loci used in the United States of America, including those amplified by Profiler Plus using, inter alia, that system and the 377. The results were published in an article which was admitted into evidence. The article has been accepted for publication in a peer review publication but has not yet been published. It was reported, in the context of Profiler Plus and the 377 that generally the best results were obtained using 1 ng to 2 ng, however, partial or complete profiles were attained with as little as 156 pg. The scientists further reported that Profiler Plus is robust and produced valid results and that some samples containing little DNA can be typed successfully. These amounts of DNA were not determined by interpretation of RFU levels but show that low amounts of DNA, well below 1 ng, analysed successfully. The scientists made the observation that the quality control measure for an effective stochastic threshold should be developed based upon a minimum peak height value which should be determined in-house because of variation in the efficiency of quantification systems and sensitivity of the analytical instruments.

505 The laboratory of the Royal Canadian Mounted Police set its reportable threshold level at 40 RFU with the stipulation that it must be clearly visible above the baseline noise, however it does not amplify a sample of less than .4 ng.

506 What this evidence establishes is not a minimum threshold level of 150 RFU but that laboratories using Profiler Plus must carry out their own studies and fix their own threshold levels.

507 That is precisely what has happened. I have mentioned the reporting levels eventually established by the Forensic Science Centre. Those levels were accepted after validation studies were undertaken, which I now mention.

508 Before turning to the particular validation, I mention a criticism of Dr Davis of all of the validation work. She said that before embarking upon the validation studies, protocols for them should have been, and were not, established. According to Dr Davis, such a protocol should be used for each test and if a test fails the protocol should be re-written and the test re-run. I expect that such a procedure is appropriate in some circumstances but I do not think the lack of it in the present case is of any significance. The STR fluorescent technology was familiar to the scientists at the Forensic Science Centre. They were familiar with validation procedures. They kept appropriate records of the validation studies and the electronic data was preserved. I reject this criticism.

509 Profiler Plus was tested to ensure that a positive control gave peaks at the appropriate height. Perkin Elmer's assurance that it should give peak heights at greater than 150 RFU was checked. Allelic ladders were checked for accuracy. The negative controls, reagent blanks, the 377, the Genotyper and Genescan were also checked and found to be operating accurately.

510 During the course of validation of the Profiler Plus system, the Forensic Science Centre considered 226 quantification results during 1999. 38 per cent of samples which showed no DNA on the quantification system produced either a partial or full DNA profile using Profiler Plus. About five per cent of such samples produced a full profile. The results of this study were produced to the Australian and New Zealand Forensic Science Society Conference held in Queensland in March 2000 and confirmed Mr Pearman's opinion that appropriate RFU levels is a sound basis for interpreting peaks as alleles.

511 I now turn to specific validation studies undertaken in the use of Profiler Plus, the 377 and the software, including Genescan and Genotyper. The first study has been referred to as the case work study. As has been mentioned, the Quadruplex and Profiler Plus systems inspect a common locus, vWA. DNA previously extracted from single samples and 17 criminal case samples with known DNA profiles, through the Quadruplex system, were amplified in using the Profiler Plus with the 377 at the level of about one nanogram of DNA. The sources of DNA included fingernail scrapings, blood, saliva, hair, body tissue and wearer/trace DNA.

512 Profiles were obtained on the Profiler Plus and compared at the vWA locus, with the known result obtained with the Quadruplex system with agreement in all cases. There was a considerable body of evidence adduced by the Defence both by cross examination of Mr Pearman and from Dr Davis and Dr Atchison about this testing and comparison. The records of this study had been made available to the Defence, some of which were admitted into evidence.

513 About 60 parentage samples which had previously been tested with the Quadruplex system were also analysed using the Profiler Plus. The analysis by the Profiler Plus showed the same results in the overall sense as the results obtained through the Quadruplex.

514 The Defence submitted that this study was flawed. It was submitted that there was unreliability in the Profiler Plus results which was not resolved in the study.

515 Issues arose as to the interpretation of some of the electropherograms produced in this study. It is unnecessary to mention all of these issues and the particular differences in interpretation between Dr Davis and Mr Pearman and the opinions expressed by those witnesses and Dr Atchison. I formed the view that if some of the results were to be used for reporting purposes, they would have had to be re-run. However, the purpose was to see if Profiler Plus produced the same result as Quadruplex at the common locus, and it did. I think any competent and balanced interpretation would lead to that overall conclusion and I rejected the contentions to the contrary. The issues which arose in particular tests were satisfactorily explained by Mr Pearman and they do not detract from the overall effect and significance of this study.

516 I was satisfied that the work undertaken was competently and correctly undertaken by the Forensic Science Centre was competently and correctly undertaken and the match of profiles at the vWA locus was a reliable indication that the Profiler Plus system was working appropriately and reliably in the hands of the forensic scientists at the Centre.

517 I turn to the sensitivity study. These studies involved the use of two samples of DNA of known quantity and profiles. One sample was a positive control from within the Forensic Science Centre and the other had been provided by Perkin Elmer. Both samples were amplified at 2, 1.5, 1, 0.5, 0.25, 0.1 and 0.05 ng. Analysis was undertaken of each sample at the reduced levels of DNA. Records were kept, including all electropherograms and tables produced by the Genescan. At the lower levels, the RFU levels were set at 60. The samples showed variability in peak heights. At .25 ng, all alleles were shown in the electropherograms and the peak heights were within forty percent of one another. At levels lower than .25 ng, not all peaks could be observed above 60 RFU, however all peaks could be observed at 0.1 ng but were approaching 30 RFU and stochastic effects were observed. At 0.05 ng, the peaks were at baseline level at less than 30 RFU. The phenomenon of baseline noise is common to all DNA instrumentation mentioned in the present case and is evident by other than a straight line at the base line. This noise is the undulations, like a wavy choppy motion, between the peaks representing alleles or other phenomenon such as pull up and artefacts which have been mentioned.

518 I accept the evidence of Mr Pearman that the sensitivity study was simply to ascertain the degree of sensitivity of the system using the 377. It was not undertaken to establish appropriate RFU levels for threshold purposes.

519 Dr Davis asserted that the sensitivity study did not provide scientific justification for analysing unknown samples at the thresholds set by the Forensic Science Centre. Dr Atchison expressed the same view. It appears that both witnesses misunderstood the purpose of the sensitivity study. I accept the evidence of Mr Pearman that the purpose was to ascertain at what levels of DNA alleles would be observed. I reject the submission of the Defence that this study was flawed. It had a particular purpose which was fulfilled. It showed the sensitivity of the system to the extent tested, namely that all alleles would be observed somewhere between .1 ng and .25 ng. Results were obtained near the baseline at 100 pg. It was an incorrect approach by Dr Davis and Dr Atchison to treat this study in isolation of the others which they appeared to have done.

520 The low level study involved the testing of a 1.40 and a 1.80 dilutions of amplified DNA on ten separate occasions and gels. The peak heights for each allele and the difference in peak heights expressed in percentage terms were recorded. The concentration of DNA was not known. The purpose of this study was the same as for the sensitivity study. The scientists wanted to see when there was no result in terms of the absence of alleles. There were further purposes, namely ascertaining when there were true alleles present as distinct from false alleles and also to enable a limit to be set for recognition of a true homozygote. In the 1.40 dilution study, all alleles were present at each locus in all ten tests except that on the tenth test one allele at the D31 locus was not detected. For that allele, which was detected in the other nine tests, there were peak heights between 55 RFU and 98 RFU in the other tests with an average of 64.2 RFU. In the 1.80 dilution study 10 alleles were not detected at particular loci.

521 It was submitted that this study was flawed and did not establish a valid threshold of less than 150 RFU. I do not propose to set out all of the evidence of Dr Davis and Dr Atchison in support of these contentions. They both misunderstood the true purposes of the study. It was not to establish a relationship between a particular quantity of DNA and peak height levels or to test the system to see if reliable results could be obtained at less than 150 RFU. I have mentioned the purposes of the study. Like the sensitivity study, it formed part of the process of evaluating the system in the hands of the Forensic Science Centre. It is a mistake to regard this study in isolation of the other studies. I accept the evidence of Mr Pearman that this study assisted in establishing the threshold levels for interpreting results and they were tested again with casework samples analysed on Profiler Plus and monitored in daily casework.

522 The Forensic Science Centre conducted a mixture study. Two samples of good quality DNA, each of 1 ng, were used. They were mixed in different proportions. In effect, there were two sets of mixtures. One sample was kept constant in one set of tests and was mixed with the other sample which was varied as to quantity of DNA being 1 ng, .75 ng, .5 ng, .25 ng, .1 ng. The mixtures were then altered by using the other sample as the constant sample and mixing with the same variations in quantity of DNA of the first sample. The total amount of DNA as mixed was kept at 1 ng to 2 ng as recommended by Perkin Elmer. These mixtures were then analysed on Profiler Plus at the level of 70 RFU.

523 In both mixtures, a clear mixture was observed down to .25 ng of the diluted sample and all alleles were present at 50 RFU. All alleles at all loci were present at above 70 RFU, except at the D7 locus. At .1 ng all peaks were present and were at the baseline or well above the baseline up to about 50 RFU and below the analysis threshold. In the second mixture a clear mixture was observed down to .5 ng of the diluted sample and at .25 ng of that sample most alleles were observed above the background or baseline and below the analysis threshold.

524 At .1 ng the peaks were comparable with the background or baseline.

525 The mixture was then varied so that each sample was reduced equally with a total quality of 1 ng. l75 ng, .5 ng and .25 ng. All alleles were observed down to .5 ng of each sample. At .25 ng of each sample, the alleles at each locus were random and variable between samples and molecular weights.

526 Mr Pearman said that there was allelic drop out at one locus at .25 ng for each sample in one of the mixtures. According to Dr Davis, this allelic drop out raised serious concerns about the reliability of the results. Dr Atchison was of much the same opinion. He said that not enough samples had been analysed to assess whether analysis of a particular level of DNA is outside stochastic effect. He suggested the test should be run perhaps 100 times. He said that this result was inconsistent with the results of the sensitivity study where there was no allelic drop out at .25 ng.

527 There are other explanations according to Mr Pearman. He did not undertake the tests but he pointed to a written note "poor Rox" which could mean that the peak heights were not as high as they could have been. He accepted that there were possible explanations of low Rox, inadequate sample being loaded, some failure in the kit or stochastic effect. He said that a conclusion had been drawn as to the cause of the allelic drop out which was a problem with the Rox and there was stochastic effect. There was also an anomaly in one of the tests with a slight preponderance of Y over X at the amelogenin locus which should have been the reverse because the mixture was two parts male to one part female. Mr Pearman expressed the view that there may have been pull-up due to saturation of the sample. Also he said there is not always balance at the amelogenin locus.

528 I did not regard these few matters as indicating that the Profiler Plus system was not operating accurately and reliably in the mixture study. The mixtures were identified at each locus except there were a few doubtful results which required interpretation and perhaps would have required re-analysis if being used for casework. I rejected the contention that because there was an indication of stochastic effect at thresholds below 150 RFU, reporting levels could not be below that level. As has been mentioned, stochastic effect is random and it may or may not be present. Trained analysts are able to correctly interpret results having regard to whether there is an indication of stochastic effect.

529 I now turn to the baseline study. Mention has been made of the phenomenon of baseline noise. The Forensic Science Centre undertook a study to determine the average RFU level for the baseline fluorescence using 74 different types of samples, including blood, positive controls, hair, urine, semen and other substances. Baseline values were recorded from electropherograms by randomly selecting 10 RFU values for each sample along the baseline that did not correspond to allelic peaks. The highest level was 22.08 RFU when testing the saliva samples. The scientists at the Forensic Science Centre concluded that using Profiler Plus with the 377, baseline values were not influenced by the type of sample.

530 The Forensic Science Centre concluded from this study that in samples which are not overloaded, fluorescent peaks that are above 30 RFU cannot be attributed to baseline fluorescence. Consequently a threshold standard was fixed which was that any peak below 30 RFU could not be designated as a true allele. Usually any peak above 30 RFU should not be regarded as part of the baseline.

531 Dr Davis was critical of this study. She said that it is not known if samples producing wavy baselines were used. She said saturated samples should have been used. The raw data should be examined. She pointed to some electropherograms of some samples which she said showed baseline noise above 30 RFU.

532 Having considered the evidence of Dr Davis, I formed the view that she had misunderstood the purpose of the baseline study and the use to be made of it. It appears that she formed the view that the Forensic Science Centre had used the results to conclude that peaks down to 30 RFU are to be regarded as true alleles. That is not the conclusion drawn from the study. As has been mentioned, the protocol established that peaks in the baseline up to 30 RFU must not be regarded as alleles. Whether a peak above that level is to be regarded as an allele or part of the baseline is a matter of interpretation. If it is to be regarded as an allele having regard to all relevant matters in the analysis, not merely the peak height, it may only be used for exclusionary purposes or to confirm a match of profiles in a clear case. It may not be used for inclusionary purposes.

533 I did not regard any of the electropherograms referred to by Dr Davis and her interpretation of them as reflecting upon the appropriateness or validity of the baseline study. It seems clear that the Forensic Science Centre in adopting a level of 30 RFU instead of the maximum indicated height of 22.08 RFU included a margin for safety which is appropriate and sensible.

534 I rejected the submission that the baseline study was flawed. It was submitted that it did not establish a valid threshold below 150 RFU for determining a profile. That is true but that was not the purpose of the study. It had nothing to do with reading levels of true alleles except in the negative or exclusionary manner which has been described. Without mentioning all of them, I rejected the criticisms by Dr Davis of this study.

535 I now turn to the last of the specific validation studies undertaken by the Forensic Science Centre canvassed in the evidence which is referred to as the peak height study.

536 According to Mr Pearman, the purpose of the peak height study was to determine the range of imbalance of peak heights between two alleles at a locus so that the information could be used to assign genotypes to alleles in mixed samples. The data was compiled by three scientists and collated by one scientist. In a report admitted into evidence, it is stated that in a perfect heterozygote locus the peak heights would be equal. However, measurement errors or differences in the efficiency of the PCR amplification will cause detectable differences in the peak heights. Peak height imbalance is an important factor in considering whether a sample might be a mixture. If the imbalance is too great, then the analyst must consider various possibilities, including problems at the amplification stage and whether the sample is a mixture. According to Mr Pearman, the purpose of this study was to see the range of variation which could occur in a single source sample. Once that is determined, variation outside that range may be used in interpreting whether a sample is a mixture.

537 The results of the study were admitted into evidence and, according to Mr Pearman, show that 95 per cent of the samples had an imbalance of 20 per cent or less. The degree of imbalance was well within the acceptable range seen in other studies. This study produced results well within the degree of imbalance of 60 percent which is regarded as normal in heterozygote profiles and which is reported by the Forensic Science Service in scientific articles about developing guidelines for multiplex STR technology although not specifically Profiler Plus[44].

538 A publication admitted into evidence did relate to Profiler Plus and was written by scientists at the laboratory of the Illinios State Police at Springfield and Chicago. They reported that in one study the maximum variation was 70 per cent when within the linear range of the instrument used.

539 I accepted that the results of the study undertaken by the Forensic Science Centre were significant in the internal validation process and showed that the Profiler Plus system was operating reliably in the hands of the scientists in the context of this study.

540 Most of the study was undertaken in 1998 when Profiler Plus was relatively new to the Forensic Science Centre and reading levels had not been established. I accepted that some of the scientists did not interpret some of the results accurately, but despite the evidence of Dr Davis to the contrary, that is not a reason to question the validity of the study given its purpose. Mr Pearman agreed that a few of the results should not have been included in the study. Some of the issues raised by Dr Davis are matters of interpretation and, given the present reading guidelines at the Forensic Science Centre and the experience of the scientists with Profiler Plus, would not now be misinterpreted. However, I accept the evidence of Mr Pearman, the effect of which is that the study was appropriate and the results were a relevant part of the internal validation process.

541 It would take a very long time indeed to recount all of the criticisms and opinions of Dr Davis about the various validation studies which were discussed by her almost sample by sample. I did not accept her evidence when it was in conflict with the evidence of Mr Pearman. She was quick to criticise and to interpret adversely to the Forensic Science Centre. Her views were often extreme and shown to be untenable. Her conclusion was that she could see in the summaries of the data that the scientists had expectations of what they expected to happen which "biased" their actual results. I could find no basis for such a conclusion. The validation studies were undertaken competently and accurately with relatively few exceptions. There was no basis for any suggestion of bias even in the way that concept is used in scientific method.

542 Dr Atchison expressed the opinion that there was a lack of data from which to assess the reliability of Profiler Plus but from what he had seen, it should not be accepted. He said that he did not know how the relevant scientific community regarded Profiler Plus. I do not accept that evidence. The evidence discloses that Dr Atchison knows very well that Profiler Plus is widely accepted by the forensic science community and that it is used for other purposes. I do not think Dr Atchison was trying to assist the Court when he gave that evidence and I reject it.

543 Dr Davis and Dr Atchison tended to focus on each of the studies individually. The Forensic Science Centre conducted each of them, assessed the results and monitored them against the considerable body of casework which it undertook thereafter. Each study was considered along with the others. The evidence clearly established that the Forensic Science Centre undertook appropriate internal validation and complied with the NATA Guidelines in that respect. Some of these studies covered aspects of development validation. With a relatively small number of exceptions, the studies were conducted without error and produced results which enabled the Forensic Science Centre to establish appropriate standards and protocols, including threshold levels which permit accurate and reliable analysis and interpretation of results, including for examples with low levels of DNA.

544 I now mention the position in each of the other forensic science laboratories in Australia. Each of them which acquired the Profiler Plus system undertook validation of the system in their own laboratories. As has been seen, it is a requirement of accreditation, pursuant to the NATA standards, that validation of new technology be undertaken before new equipment, instruments or systems are used for casework. Records were made of this work and results were given to other laboratories and were, or will be, given to NATA or ASCLAD in the accreditation process.

545 The Western Australian and Tasmanian laboratories undertook validation of the Profiler Plus system and provided to Mr Pearman an outline of that work. The Victorian Police Forensic Science Laboratory also undertook much work and produced a report in more detail which was received by Mr Pearman and so he had personal knowledge of validation studies undertaken by those laboratories.

546 No evidence was led of the actual validation work undertaken by the other laboratories in Australia.

547 However, a considerable body of knowledge of Profiler Plus has been acquired in this country. The evidence does disclose that low level studies have been undertaken. I briefly mention the evidence relating to each laboratory and it is to be expected that these laboratories would have undertaken internal validation of Profiler Plus as set out in the NATA standards, particularly if the laboratory is accredited pursuant to these guidelines. All of the laboratories are accredited except those in the Northern Territory and Queensland which are seeking accreditation.

548 The Australian Federal Police Forensic Biology Laboratory in Canberra reports heterozygote peaks of 50 RFU or greater and homozygote peaks of 100 RFU or greater if the profile is from a single source sample. If the sample is a mixture, all peaks greater than 50 RFU are reported. These reports are made even if there is a negative result at the quantification stage. Dr Sutton, the leader of the relevant section of that laboratory, explained that her laboratory adopts that course because the amplification stage is more sensitive than the quantification stage and also that inhibitors are often present in a sample which inhibit the quantification reaction but not the amplification reaction. Consequently, DNA may be seen following amplification although not observed at quantification. Profiler Plus was not part of the accreditation of this laboratory but, at the time of the voir dire, the re-accreditation process was about to commence which was to include Profiler Plus.

549 The Institute of Clinical pathology and Medical Research in New South Wales reads levels of 50 RFU for heterozygotes and 100 RFU for homozygotes and does report results at these levels where DNA has not been detected at the quantification stage. The Senior Forensic Biologist at this laboratory, Dr Goetz, explained that the quantification method is only an estimate of the amount of DNA present. At this laboratory the Profiler Plus has been part of an accreditation by NATA.

550 The Forensic Biology Laboratory of the Northern Territory, as the result of validation of, and experience with, the Profiler Plus, using the 310, reads heterozygotes at the level of 50 RFU and homozygotes at 150 RFU. That laboratory does not quantify DNA prior to amplification because the senior staff are not convinced that the quantification process provides any indication of the likelihood of obtaining detectable amplified products. That laboratory is not yet accredited but is working towards accreditation and works to NATA accreditation standards.

551 The Forensic Biology Section of the John Tong Centre in Queensland has used Profiler Plus since March 1998 and uses the 377. It reads a heterozygote at not less than 50 RFU and a homozygote at not less than 150 RFU, but if a single allele is seen at a locus at less than 150 RFU, its presence will be reported. Where DNA is not detected at the quantification stage, the sample is amplified and analysis undertaken because of the higher sensitivity of the 377 instrument compared with the much lesser sensitivity of the quantification test and the lower sensitivity of the product gel. According to Mr Frenley, the supervising forensic scientist of the forensic biology section at that laboratory, the main reason for the quantification process is to ensure that samples are not overloaded.

552 At the Forensic Science Centre of the Victorian Police, the reporting levels for heterozygotes is 50 RFU using the 377 and 100 RFU using the 310 and250 RFU for homozygotes whatever instrument is used. Samples of less than .5ng are amplified and analysed for urgent or pressing investigation reasons but the results are not reported.

553 The laboratory in Western Australian uses Profiler Plus with the 310 and reports heterozygotes at 50 RFU and homozygotes at 150 RFU. All samples are analysed even when DNA is not detected at the quantification stage and profiles are reported. At the time of the voir dire, this laboratory was not accredited but the accreditation inspection by NATA was about to commence.

554 The Forensic Science Centre is Tasmania is accredited by NATA, but the Profiler Plus was not in use at the time of the accreditation. Profiler Plus, with the 310, is used in all casework and peaks below 150 RFU are not reported. A homozygote is called at between 150 and 300 RFU if, in the judgment and experience of two independent readers, the baseline is clear of potential allele peaks. A detection of DNA limit of about .5 and 1 ng is employed by this laboratory and stochastic effect has been observed at below these levels.

555 It may be seen that these laboratories, with the exception of Tasmania which does not use the more sensitive 377, report a lower RFU level for heterozygotes than the optimum level reported by Perkin Elmer and most report homozygotes at less than 150 RFU. All of the laboratories using the 377 report heterozygotes at lower levels than the Forensic Science Centre.

556 Given the nature and seriousness of the work undertaken at each of these laboratories and the qualifications of senior staff, it is reasonable to infer that each laboratory has validated the Profiler Plus system by study and experience and has found it to be reliable and accurate.

557 It is to be expected that each of these many laboratories around the world would have carried out validation of the Profiler Plus system before using it for casework. In some of the articles, reports are given of such validation. I do not propose to set out the conclusions in all of the articles in detail as they were summarised by Mr Pearman's evidence about them. He said that they conclude that the Profiler Plus system used with fluorescence technology is a robust and reproducible technology suitable for use in the analysis of forensic DNA samples. That evidence accords with the conclusions in the articles.

558 I accept Mr Pearman's evidence that the Profiler Plus is also used in fields of science other than in forensic work. For example, it is used for typing in the field of bone marrow transplants, in archaeology to identify historical identities of interest and in the investigation of particular genetic diseases such as muscular dystrophy.

559 It was necessary to consider whether the Profiler Plus system has been generally accepted as accurate and reliable in the analysis of low levels of DNA.

560 Mention has been made of the low levels of DNA in the samples KO22B and KO22C as estimated by Mr Pearman.

561 I have mentioned the validation of Profiler Plus undertaken by the Forensic Science Centre and, in particular, the sensitivity studies which showed that at 0.1 ng all peaks could be observed, however many were approaching 30 RFU and stochastic effects were observed. No sensitivity studies were undertaken between .25 ng and 0.1 ng. However, the analysis of the sample KO22C in the present case is not without significance. A profile was observed at each locus although reported as inconclusive at the D18 and D7 loci at the reporting level fixed by the Forensic Science Centre. This profile matched the profile obtained from the reference blood sample taken from the accused which contained adequate DNA estimated at the quantification stage to be 6 ng which, when diluted, provided optimum template DNA for analysis. The analysis of the D18 and D7 loci of KO22C was also undertaken at the level of 30 RFU which showed profiles at both of these loci which matched the profile of the accused. The profiles at these loci were not reported because the RFU level was below the reporting threshold. Nevertheless this analysis revealed a profile consistent with that of the accused which establishes that he could not be excluded as the donor of KO22C because of different alleles being seen at that loci. There were other tests to the same effect which need not be mentioned for present purposes. This result regarding KO22C indicates that the Profiler Plus system is capable of accurate analysis at low levels of DNA including as low as .15 ng.

562 I have mentioned the recent article by forensic scientists of the laboratory at the FBI, in which they reported, inter alia, that partial and complete profiles were obtained using Profiler Plus with the 377 with as little as 156 pg. Also mention has been made of the validation study of Profiler Plus using the 310 undertaken by scientists at the Institute of Forensic Medicine at the Medical University of Gdansk in Poland. They reported that various quantities of DNA were used estimated from .09 to .25 ng using Profiler Plus with the 310. They reported that no complete amplification profile of all 10 loci was not obtained for DNA concentration below .78ng, but individual loci, mainly homozygotes and short fragments of DNA could be identified at .143 ng at RFU values of less than 150[45].

563 Samples of DNA diluted to .1ng per microlitre were analysed using Profiler Plus and the 310 by the laboratory of the California Department of Justice in Berkley in California in 1998 and were reported to the 1998 Conference of the Academy of Forensic Services in the United States of America.

564 Scientists at the Regional Crime Laboratory in Tampa, Florida, undertook validation of Profiler Plus pursuant to the TWGDAM guidelines at a time not specified in the abstract of the publication of results which was admitted into evidence. As part of that process, sensitivity studies were undertaken which established that results could be obtained from dilutions ranging from 2ng to as little as .1ng of a known type of DNA. These results were published at the 9th International Symposium on Human Identification in 1998.

565 Scientists from the Bureau of Legal Dentistry in Canada reported in a published article successful amplification of .2 ng of DNA recovered from the upper surface of the bite mark of cheese left at the scene of a crime using Profiler Plus and the 310[46].

566 Forensic Scientists from a laboratory by the name of Cellmark Diagnostics gave a presentation at the 10th International Symposium on Human Identification in 1999 as to their validation of the Profiler Plus and Cofiler PCR amplification kits using the 310. A copy of the abstract was admitted into evidence. They reported that they had undertaken validation in accordance with the TWGDAM guidelines with the result that reproducibility and proficiency was demonstrated with the 310. The validation also included sensitivity studies. Detectable results were observed with .15ng of DNA but the authors reported that the optimal range for amplification was determined to be .5ng to 2.5ng. The DNA used in this low level study was of high molecular weight.

567 Other publications admitted into evidence indicate that in the course of validation sensitivity studies, profiles were obtained with as little as .1 ng.

568 Similar studies were undertaken by two forensic scientists of the police laboratories at Springfield, Illinios and Chicago in the United States of America and the results were reported to the 9th International Symposium on Human Identification in 1998. A copy of the abstract was admitted into evidence. They used Profiler Plus and the 310 and created a dilution series for five samples ranging from 10ng to .036ng of DNA. As I understand the abstract, all loci which were detected at the lower limit at the laboratory at Chicago was .078 ng and at the laboratory at Springfield was .3 ng.

569 Given the publication of these studies in recognised journals and at the symposia, as the case may be, it is to be expected that they were read and understood by many forensic scientists working in the field. It is of significance that no article or commentary to the contrary has been published.

Earlier in the context of Dr Davis and her evidence, I referred to the abstract of the presentation by scientists from the Santa Clara County Crime Laboratory at San Jose, California, including Ms Brewer at the meeting of the American Academy of Forensic Sciences at Reno, Nevada. That abstract was admitted into evidence and it includes that, using Cofiler and Profiler Plus, genotypes were obtained with DNA levels of .25 ng and partial profiles were obtained at .125 ng.

570 When Mr Pearman was asked to express an opinion about these published validation studies, he said that sensitivity does vary from instrument to instrument, referring to the sequencers, because of the camera which is used to capture the information, but in general terms, the published studies showed that some loci can be analysed with as little as .1ng of DNA and about .15ng to .2ng or .25ng is necessary to obtain a full profile. I accept that evidence.

571 In my view, it was clearly established by the evidence that Profiler Plus using the 377 is capable of accurately analysing low levels of DNA, even as low as .1 ng, if used appropriately and the results are correctly interpreted. As has been seen, there are occasions when samples with such a low level of DNA are stochastically affected and there are others which are not. The results of the analysis of KO22C by the Forensic Science Centre show that there was no stochastic effect because all alleles were present and seen to be present when low RFU levels were used.

572 Published scientific literature in relation to other systems is also significant.

573 Scientists at the laboratory of the Royal Canadian Mounted Police reported that using a triplex system with the 377 permitted complete profiles to be obtained with .32 ng. Lower quantities contributed to locus dropout. However, when using larger aliquots of the PCR products, that is 6 microlitres, instead of 1.5 microlitres, peak heights at that level of DNA were no longer borderline values. Unreliable and partial profiles were obtained at .08 ng and .04 ng with major differences in peak heights due to stochastic effects[47].

574 Scientists at Perkin Elmer and the California Department of Justice DNA Laboratory reported that when using a triplex with the 377 and 310 that no signal was detected using .035ng or less but clear profiles were seen at .25 ng at 150 RFU and greater and at .125 ng the peaks were not significantly above the background[48]. In a report of scientists from Promega Corporation, the FBI, Palm Beach Sheriff's Crime Laboratory, the Blood Centre of South Eastern Wisconsin Milwaukee and the Californian Department of Justice DNA Laboratory in Berkeley, California, it is stated that using the Promega CTT triplex profiles were obtained with .1 ng[49] of DNA. Scientists at the Forensic Science Service published results in 1994 of complete profiles using a quadruplex with .1 ng of purified DNA[50]. Results published in 1995 by scientists at the laboratory of the metropolitan Police in London using a quadruplex and the 373A reveal a full profile at .125 ng[51]. Scientists at the Forensic Science Service and the laboratory of the Department of Defence, Armed Forces Institution of Pathology in Washington, evaluated using a quadruplex reported obtaining full profiles for three samples at .1 ng[52].

575 Scientists from Promega Corporation and the Palm Beach Country Sheriff's Office Crime Laboratory using the PowerPlex multiplex developed by Promega inspecting 8 STR loci and amelogenin reported obtaining consistent profiles from .25 ng to .2 ng[53]. Perspiration from inside latex gloves when analysed using SGM from the Forensic Science Service and Powerflex from Promega Corporation with the 377 by scientists of the forensic science laboratory of the Carabinieri in Italy provided profiles at seven STR loci which matched those of the suspect. Although it is reported that the extracted DNA was quantified, the report does not reveal the result of the quantification[54].

576 These references as to the capacity of other STR fluorescence systems are significant. It may be seen that the profiling of low levels of DNA has been known and accepted for some time using this type of technology and is not new to Profiler Plus.

577 Indeed, accepting the evidence of Mr Pearman, as I do, that is what happened with the analysis of the sample KO22B on the Quadruplex by the Forensic Science Centre in 1998.

578 Also the RFU levels of 50 for heterozygotes fixed by the Australian laboratories using the 377, including when DNA is not shown at the quantification stage, indicate that they have accepted that Profiler Plus is accurate and reliable when using low levels of DNA.

579 There is one further matter which bears upon whether Profiler Plus should have been accepted by the forensic science community as accurate and reliable for DNA analysis, including whether when testing low levels of DNA.

580 Mention has been made that the two stains KO22B and KO22C are very likely the same stain separated by a crease in the blouse. I accepted that to probably be the position. When KO22B and DJK1, the reference sample taken from the accused, were analysed in early 1998 using quadruplex, there was a match at all four loci, including vWA. Both samples were amplified twice and the same results were obtained on both occasions. KO22C was also analysed using Quadruplex in August 1999 and produced the same result.

581 When KO22C and DJK1 were analysed using Profiler Plus, there was also a match at the seven loci which produced results at reportable levels, including vWA. These results were confirmed by the Quadruplex analysis in the sense that there was a match when using both systems.

582 There was also a match between the two samples when inspecting the D1S80 locus.

583 I concluded that these results confirmed the accuracy of the Profiler Plus in the hands of the Forensic Science Centre and that it was an accurate and reliable system.

584 I now turn to paragraph 2 of the particulars of challenge to admissibility of the results of the DNA testing using Quadruplex and Profiler Plus.

585 I have already expressed my conclusions about Mr Pearman and there is no need to repeat them. It remains only necessary to say that each of these particulars was rejected. I concluded that the use of Quadruplex and Profiler Plus in his hands was, in the present case, efficient and effective as was his supervision of others. There was simply no basis in the evidence to even question his expertise. I was satisfied that he understood the relevant science and how it should be applied. He had considerable experience in the practical use of STR fluorescence technology using Quadruplex, electrophoresis, the 377 and other instruments and Genescan and acquired a sound working knowledge of Profiler Plus. The validation of Profiler Plus and his prior experience with Quadruplex establish his awareness and observance of relevant validated protocols. There was simply no reliable evidence to ever suggest a disregard by him of scientific method or a lack of scientific objectivity.

586 There was a considerable amount of evidence adduced by the Defence in an attempt to establish contamination in the Forensic Science Centre during the course of testing in the present case. No such contamination was established even as a possibility. Usually an issue of contamination would be a question for the jury. However, the contention of the Defence was that the manner in which the DNA testing was undertaken demonstrates such a lack of expertise on the part of Mr Pearman that he could not be regarded as an expert to give relevant evidence about the DNA testing using Quadruplex or Profiler Plus. If the evidence justified such a finding, there would be an issue of admissibility. I rejected that contention and I now briefly express my reasons for doing so.

587 I have mentioned the use of various controls during the extraction, PCR and analysis stages. According to Dr Atchison, there were various errors in the testing. I do not propose to set out all of the evidence. The so-called errors are not in doubt. It is only what interpretation should be given to them.

588 Before mentioning the particular matters in issue, it is necessary to say a little more about the controls used in DNA testing. At the extraction stage, a reagent blank control is prepared. It is comprised of reagents used in the extraction procedure and so it is the same as the sample except that it does not contain any part of the DNA in the sample. At the PCR stage a positive control is prepared using the same reagents employed in that stage together with DNA of known profile. It is used in this stage in the same way as the extracted sample. A negative control is also used at the PCR stage. It is comprised of the same reagents but with distilled matter instead of the DNA in the positive control or in the extracted samples. The reagent blank is also passed through the PCR stage. The three controls are run with the sample to be tested through the analysis stage. If any of them do not produce the expected result, then the scientists know that something is amiss. The reagent blank and the negative control should not show the presence of DNA and the positive control should show the known profile.

589 The Forensic Science Centre kept detailed and adequate records of those results. I have already referred to the transcription error in the record of the gel run with a positive control using Quadruplex. I was satisfied that the error was simply a transcription error. When the positive control was run again, the correct profile was seen.

590 In the run of another gel using Quadruplex, the positive control showed a typing at the FES locus outside the allelic range. I accepted the explanation of Mr Pearman that purely by chance it is expected that an allele will fall outside the allelic window from time to time. He said that there can be a change in electrophoretic conditions and that is what had occurred. He allelic windows were recalculated. The sample was run again with the expected result.

591 When another gel was run using Quadruplex, it was loaded incorrectly. The sample for the first lane was not loaded with the consequence that the next 15 samples were loaded in the incorrect lane and then one sample was loaded twice so that thereafter the samples were in the correct lane. It made no difference to the results. The error was that they were recorded in the wrong lane. The reagent blank actually loaded in lane 13 showed weak typings at the THO1 locus which Dr Atchison said was due to contamination. He said it should be re-run. It was, and the correct results were obtained. Mr Pearman was of the opinion that the weak typings at THO1 were due to lane to lane leakage from the sample in the next lane.

592 The table of results for another gel show that the negative control had typings at the F13 locus. Dr Atchison expressed the opinion that there had been contamination at the PCR stage. Mr Pearman established to my satisfaction that the presence of the typings were not due to contamination but to pull up in the ROX. The level was only 24 RFU. The Genescan supports that conclusion.

593 In another gel, typings were shown in a reagent blank which Dr Atchison said indicated contamination. I accepted Mr Pearman's explanation that these typings were due to overflow from an adjacent lane. The typings are very weak, except in the opinion of one of the readers at the THO1 and FES loci.

594 During the analysis of reference samples taken from the accused and Mrs Ostendorf at the D1S80 locus, a very weak 16 allele was seen in the reagent blank which, according to Dr Atchison, implies contamination. Mr Pearman expressed the opinion that it was very likely contamination from the allelic ladder. The samples were re-amplified and run again and the reagent blank was clear. I accepted the explanation of Mr Pearman and that appropriate action was taken.

595 In another gel run in Quadruplex, the reference sample taken from the accused showed a very weak off ladder allele being 9.3 at THO1. Once again Dr Atchison suggested contamination as the cause. There was no sign of contamination in the reagent blank relating to the reference sample. Dr Atchison said that the reagent blank had not picked up the contamination which, he said, did not mean that there was not contamination somewhere else.

596 The note of an analyst as to this to result was that the sample was overloaded. Mr Pearman explained overloading could explain an extra peak in the baseline being a 9.3. He said that it was a reference sample which typed at that locus as 6:7. When it was again analysed, the result was also 6:7. Mr Pearman said that he did not regard the very weak off-ladder allele as capable of comprising the result in any way and the likely explanation was the raised baseline due to the sample being overloaded. I accepted that explanation.

597 It was also suggested that there were errors in the testing in 1999 using Profiler Plus and Quadruplex.

598 At the amplification of the reference samples from the accused and Mrs Ostendorf using Profiler Plus on 3rd August 1999, her sample was loaded into the wrong tube being the tube containing the reagent blank. This mistake was discovered and a note to that effect was made on the appropriate written record by Mr Pearman on the same day. According to Dr Atchison, the procedures at the laboratory did not prevent the error and he interpreted this record as indicating that there had not been a reagent blank for the reference sample from Mrs Ostendorf . However, the records show, and Mr Pearman said, that the reagent blank was run again and shown to be clear.

599 When KO22C was amplified in the Quadruplex system on 3rd August 1999, all of the relevant controls were run, including the reagent blank, but the PCR failed because magnesium had not been added. Magnesium is an essential part of PCR. It is included in the Profiler Plus kit but not in the Quadruplex kit. On the same day the laboratory had amplified the reference samples of the accused and Mrs Ostendorf and the scientist had simply overlooked adding the magnesium when the process changed to Quadruplex. The mistake was detected and corrected. I concluded that it was easily understandable how it could occur. Dr Atchison said that the failure to add magnesium was not the only possible explanation for the failure of the PCR but did not elaborate. I accepted Mr Pearman's explanation.

600 Dr Atchison also appears to have been critical of the procedures taken by the Forensic Science Centre in an attempt to obtain a complete profile at each locus of KO22C using Profiler Plus. When the sample was run at 1.5 ul at the reading level of 75 RFU, profiles were obtained at the loci D3, vWA, FGA, amelogenin, D8, D5 and a partial profile at D13. Peaks were present at the other loci but below the reading level of 75 RFU. The sample was run again at the increased volume of 2 ul at the same reading level with the same result except there was some variation in peak height. The sample was run again at the same volume of 2 ul but with a reading level of 50 RFU. The same profiles appears but in addition there were profiles at the loci D21, D18, D13 and a partial profile at D7. All peaks appeared and only one at D7 was below the reading level of 50 RFU. All of these designated alleles corresponded with the profile of the accused.

601 KO22C was run again at the volume of 2.5 ul at the same reading level of 75 RFU. I have determined the reading level from the electropherogram. The same peaks were present but only those at D3, vWA, FGA, amelogenin, D8 and D5 showed a complete profile. There was a partial profile at D13. The sample at that volume was run again at the reading level of 30 RFU and a complete profile corresponding with that of the accused was obtained. Of course, the reading level for the alleles at D18 and D7, ranging from 30 RFU to 49 RFU, were too low for reporting purposes.

602 Dr Atchison was critical of this testing at increased volume of PCR product. He said that loading increased volume on to a gel has no logical use and is not a standard scientific procedure. He said there should be a set protocol.

603 I do not regard these criticisms as either valid or having a practical effect. KO22C had a low level of DNA. The scientists were obliged to go through these various procedures to see if a peak occurred which was inconsistent with the DNA profile of the accused and which, upon interpretation, could have excluded him. As it turned out, that did not happen and the tests with the increased volume and different reading levels tended to confirm the profile eventually given by the scientists to KO22C. I had difficulty in understanding why the criticisms were made. Given the experience of Mr Pearman in STR fluorescence technology, even if there was not a particular protocol for the process of using increased volume, the process and its purpose was so simple and obvious, it is a matter of no significance in the present case.

604 There is another matter. It was Dr Atchison's opinion that the Forensic Science Centre erred in not running the reagent blank with the relevant sample when that sample was again amplified and tested. The samples which were again amplified were the accused's blood reference sample, KO22B, KO22C on the Quadruplex and another sample, KO10, being nail clippings from the right hand of Mrs Ostendorf. The reagent blank for each of those samples was run through each relevant process with the first amplification with the expected result. According to Dr Atchison, the failure to run the reagent blank at the subsequent amplification does not permit the results to be regarded as accurate. Mr Pearman said that the practice at the Forensic Science Centre was not to use the reagent blank when a sample was again amplified because it had already done its work and had shown that there was no contamination at the extraction stage. The other controls, the positive and negative controls, monitored the position at any subsequent amplification.

605 The Forensic Science Centre used the Centricon process to increase the amount of DNA in KO22C. It is a filtration and concentration process generally accepted in the forensic science community. When the sample was analysed after this process at the reading level of 75 RFU, all peaks were present with complete genotypes at all loci except D18 and D7 where there was a partial genotype. This profile accorded with the profile of the accused. The sample was again run at 50 RFU with complete genotypes at all loci which accorded with the profile of the accused.

606 Dr Atchison said that the initial reagent should also have been run through the Centricon process and, as that did not occur, the analysis was invalid.

607 Once again there was a considerable amount of evidence led about those matters. I reached the conclusion that the approach of the Forensic Science Centre was sufficient. There was no need to run the reagent blanks again as these had been run through the whole process and had been clear. The results of the DNA testing in the subsequent amplification were the same as those for the initial tests. I do not think that this issue had any practical significance and was not capable of impugning the competence of Mr Pearman or the other scientists at the Forensic Science Centre. The issue did not arrive with respect to the tests undertaken on Profiler Plus. Mr Pearman did acknowledge that if a reagent blank did have a very low level of DNA due to contamination, it may be revealed if the reagent blank is placed through the Centricon process, but in the present context I did not regard the failure to do so as a matter of significance or as reflecting upon the competence of Mr Pearman.

608 I now turn to the many criticisms of the testing of the various samples in the present case by Dr Davis.

609 She was shown the electropherograms for the analysis of the Centricon sample of KO22C at the reading level of 75 RFU and for the sample of KO22C loaded at 2.5 ul. She said that they could not be profiled as an individual. She said she had loaded the electronic data into the computer at Lexigen. She expressed opinions about a positive control used in this testing and expressed the opinion that artefacts or contaminants were present or that true alleles were being masked. I rejected this evidence. It was contrary to the evidence of Mr Pearman and it revealed, in my view, a lack of ability to interpret electropherograms accurately.

610 I have not set out the claimed basis for the opinions of Dr Davis. It involved her interpretation of electropherograms and, as I have said, I did not regard her as having sufficient expertise to do so.

611 There was no substance in any of the criticisms and opinions of Dr Atchison or Dr Davis about the 1998 and 1999 tests such as to justify the assertion that Mr Pearman did not have expertise to use Quadruplex or Profiler Plus or to interpret the results. Errors do occur in laboratories, hence the use of protocols, controls and the keeping of records. The errors which occurred were recognised and recorded. The problems were resolved. There was no contamination in the relevant sense. The controls were effective. I rejected the challenge to the evidence on this basis.

612 Before parting with the evidence of Dr Davis and Dr Atchison, I make some further observations. Expert witnesses stand in a special place in our trial system. These days science is imported more and more into the justice system to assist in the accurate resolution of matters in issue. The Courts are entitled, and often obliged, to place their trust in men and women of science and it is essential that scientists respond accordingly so that a miscarriage of justice may be avoided. Courts are entitled to expect that they will undertake their work with appropriate investigation and impartiality.

613 Neither Dr Davis nor Dr Atchison sought any explanation from Mr Pearman or anyone else at the Forensic Science Centre about any matter before reaching conclusions. They were prepared to attack the competence and reliability of Mr Pearman and the Forensic Science Centre without adequate investigation and enquiry. As has been mentioned, Mr Pearman provided a considerable amount of information to the Defence and yet explanations were not sought from him about many matters which formed the basis of a most serious attack upon him. Had enquiries have been made, any competent, impartial and balanced expert would have had regard to the information provided and would not have made many of the attacks which were made. It is no answer to say that Dr Davis lived in California. She was in this Court for some weeks before she gave evidence and could easily have made the enquiries. I regarded the failure of Dr Davis and Dr Atchison to seek appropriate information and explanations as seriously reflecting upon their competence as scientists. I am not suggesting that the legal representatives of the accused dissuaded them from making enquiries, as I was not informed as to what happened, but even if they did, that also would reflect adversely upon Dr Davis and Dr Atchison. In my view, no competent scientist would refrain from being adequately informed at the request of legal representatives and I expect that any competent scientist who was obstructed in that way would decline to be involved. In making these observations, I am not reflecting adversely upon the legal representatives of the accused. I am merely reflecting upon the witnesses.

614 In my view, none of the challenges to the admissibility of the evidence could succeed. It is unnecessary to mention each of the particulars seriatim. The evidence overwhelmingly established that the Profiler Plus system is generally accepted throughout the forensic science community as reliable and accurate in DNA analysis for the purposes of human identification, including with low levels of DNA. The evidence also overwhelmingly established that Mr Pearman is a competent and highly experienced forensic scientist with a sound understanding of the Quadruplex and Profiler Plus systems and was well able to use both competently, accurately and reliably.

615 Whilst it would be a matter for the jury to decide if he did so, for the purposes of admissibility of the evidence of the DNA testing, I was easily satisfied that he did use both systems competently, reliably and accurately and that the protocols, systems and procedures at the Forensic Science Centre were appropriate for that purpose.

617 I now turn to the challenge to the evidence which the Crown proposed to lead as to the weight to be given to the match between the DNA profile of the accused and of the stain KO22C on the blouse assuming that the jury found such a match and that the stain was left by the person who murdered Mrs Ostendorf.

618 It is recognised in the cases that once a jury concludes that there is a match between the DNA profiles of a sample at the crime scene and the accused, the case proceeds to the statistical evaluation stage provided there is an adequate evidential basis: see Jarrett, Pantoja. This is because a match does not establish that the accused left the crime scene sample. As the Court of Criminal Appeal observed in R v Doheny and Adams [1996] EWCA Crim 728; [1997] 1 CrAppR 369 at p373:

"As the art of [DNA] analysis progresses ... 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. So far as we are aware that stage has not yet been reached."

See also Pantoja and the cases therein referred to and, in particular, R v Green (NSW CCA, File No 60308 of 1991, 26th March 1993, unreported). As was said in Green, the evidence of a match, if accepted, means that the accused cannot be excluded and therefore it was "possible" that he was the person responsible for the items.

619 The following passage of the judgment of Abadee J in Pantoja expresses what then happens at p578:

"Once the match is declared the expert must make a decision as to the significance of the match by calculating the match probability. Essentially this involves assessing the probability of the match having occurred by chance. Because it is possible for a match to occur by coincidence a decision must be taken as to the significance of the match and this is typically done. The second stage is the final phase in the DNA profiling process. It involves the utilization of population genetics to estimate the probability that a person picked randomly from the population would have a DNA profile identical to the DNA profile generated from the forensic sample. The frequency with which a particular DNA pattern will occur in a given population is predicted by determining the frequency with which that patter occurs in database samples. Some commentators suggest that it is the probability favouring a random match that provides the telling and convincing evidence in the DNA testing exercise."

620 The Crown proposed to lead evidence from Mr Pearman and Dr Buckleton about this subject matter. For the evidence to be admissible, a number of matters must be proved with the onus resting upon the Crown. The databases used in the exercise must be shown to be valid. It is asserted by the Defence that they must be accurate and also have statistical validity. The method of calculating the match probability must be valid and accord with principles of population genetics. The expert making the calculation must be shown to have sufficient expertise to do so and must have undertaken the task correctly. The first and second of these matters were challenged by the Defence. There was no challenge to the expertise of Mr Pearman or Dr Buckleton.

621 As the voir dire hearing progressed the particulars of the challenge to admissibility of this evidence were refined as follows:

"1 The accused challenges the validity of the database (D15(c)) and the National Caucasian (Quadruplex) database on the following grounds:

1.1 The racial/ethnic affiliation of the perpetrator being unknown, databases for each of the racial/ethnic groups represented in the relevant population must be used in order to derive the highest probability of seeing the profile.

1.2 An appropriate Fst/Theta factor for each of the relevant racial/ethnic groups must be calculated and applied. The proposed value for Fst/Theta (to adjust for dependence between alleles) is inapplicable.

1.3 Independence between loci in the sub-population of interest (comprising the perpetrator) must be established, but cannot be.

1.4 Independence between loci cannot be assumed as between the loci comprised in the national Caucasian Quad database and the loci comprised in the South Australian Caucasian Profiler Plus database - such as to justify multiplication of frequencies derived from those respective databases.

2 The accused challenges the use of the 'likelihood ratio' (LR) as an admissible method of representing the significance of the alleged profile match.

2.1 The LR is not a frequency, but the ratio of two conditional probabilities which functions as the multiplier in Bayes' Theorem to derive posterior odds from prior odds, and has no other relevant use.

2.2 The use of Bayes' Theorem by the jury is not permitted: the jury cannot make any mathematical estimate of the prior odds.

2.3 The use of conditional probabilities in deriving a LR without taking account of laboratory error rates is incomplete and misleading.

3 Alternatively, the evidence of opinion as to the LR should be excluded in the exercise of the court's discretion because its prejudicial effects outweigh any probative value."

622 The reference to the database is the South Australian Profiler Plus database established and used by the Forensic Science Centre when the DNA analyses have been undertaken using the Profiler Plus system.

623 Before turning to the issues raised in this part of the case, I mention the witnesses who gave evidence about them.

624 The Crown called Mr Pearman and Dr Buckleton. I have mentioned the qualifications, training and experience of Mr Pearman. In the course of his extensive experience in casework, he has made many calculations based upon accepted principles of the science of population genetics in order to give weight to the significance of a match of DNA profiles. He has undertaken reading and study of those principles. He has attended meetings and seminars at which they have been explained and discussed, including by Professor Weir, an acknowledged expert in this field of world renown, and Dr Buckleton. I was satisfied that Mr Pearman was sufficiently qualified to give expert evidence on this subject matter.

625 Dr Buckleton is a forensic scientist with a specialist interest in evidence interpretation. He was awarded a Master of Science Degree with first class honours and a Doctorate of Philosophy in chemistry by the University of Auckland in New Zealand. He has been working as a forensic scientist for about 16 years and is currently employed at the Mount Albert Science Centre of ESR in New Zealand which is accredited by ASCLD.

626 During three different periods, in 1988, 1993 and 1995 he worked at the Forensic Science Service in the United Kingdom in the Evidence Interpretation Research Unit, the head of which is Dr Ian Evett whose writings on DNA analysis and interpretation of profiles have been published widely in peer-reviewed journals. Whilst at the Forensic Science Service, Dr Buckleton specialised in the area of evidence interpretation including the interpretation of DNA profiles and was involved in a training and research programme in that country. He has since collaborated with Dr Evett in the field of evidence interpretation. He was involved in a training programme at the Forensic Science Centre in 1999.

627 In 1995 he worked with Professor Weir at the North Carolina State University. Professor Weir is a statistical geneticist and his writings in that field have also been published widely in peer-reviewed journals. Dr Buckleton has worked with him for some time in each year since 1995.

628 Dr Buckleton has published over 50 papers in peer reviewed journals and has lectured extensively in the United Kingdom, the United States of America, Australia and New Zealand in evidence interpretation. He has given evidence in courts in New Zealand and the United States of America and has undertaken extensive analysis of databases in the USA, UK and New Zealand and some such analysis in Australia.

629 This specialised area of expertise of evidence interpretation relating to DNA has been acknowledged and accepted by the courts. Once it has been established that there is in existence a reliable and valid database of DNA profiles, this type of expert may express an opinion as to the frequency with which the DNA profile matching the crime scene samples is likely to be found in the population at large. There has been much debate about how such an opinion should be expressed and the bases upon which it should formed, but there is no doubt that a suitably qualified expert can express the relevant opinion.

630 I have no doubt that Dr Buckleton, by reason of his training and experience, is suitably qualified as an expert to express a relevant opinion about that subject matter.

631 Also, the Crown proposed at the trial to lead evidence from Dr Buckleton as to the statistical validity of the Australian National Caucasian Quadruplex database and of the South Australian Profiler Plus database established in 1999 and amended in May 2000 and June 2000.

632 It is not only the size of the databases which is significant in order to establish statistical validity (see Pantoja) but also the manner in which they have been compiled, their statistical validity regardless of size and an acceptable method for statistical calculation in order to form the opinion. There are different views within the relevant scientific community about some of these matters, but there can be no doubt this subject matter forms part of a body of knowledge which is sufficiently organised and recognised to be accepted as a reliable body of knowledge: see Bonython at p47. Furthermore, the evidence clearly establishes that Dr Buckleton is well qualified on this subject matter, as is Mr Pearman.

633 Before turning to the principal issues raised by the challenge to this evidence, I mention the two witnesses called by the Defence, Dr Atchison and Dr Mitchell. I have referred to the qualifications, training and experience of Dr Atchison. I concluded that he was qualified to the subject matters relating to these issues and that he could give expert evidence about them.

635 He was awarded a Bachelor of Geography degree with honours by the University of Durham in 1968 during the course of which he studied demography, human populations and statistics. He undertook a post-graduate degree in anthropology at the same University which included study of genetic aspects of race, human evolution, demography and population genetics which was described as the distribution of genes in populations and the causes of that distribution. He was awarded a Doctorate of Philosophy in 1974 by the same University. The subject of his thesis was population genetics. His post-graduate work has also involved the study of statistics. Dr Mitchell then took a position as post-doctoral fellow at the University of Newcastle in the United Kingdom for a period of two years. He came to Australia in 1974 and took a position of post-doctoral fellow at La Trobe University in the Department of Genetics and Human Variation. In 1975 Dr Mitchell became a lecturer at that University in mainly human genetics and biological anthropology. He has remained at the University and is now a senior lecturer working in the same fields. His work includes population genetics, DNA and human evolution.

636 His particular field of interest is human population genetics in which he has since worked extensively. It is unnecessary for present purposes to set out in any detail his subsequent fields of study and areas of work, as I accepted him as an expert in human population genetics and regarded him as qualified to express opinions about matters in issue.

637 He has undertaken studies of population groups in England and in Australia using inherited genetics markers of protein and blood groups and compiling databases for the populations under study. With the development of DNA technology, he changed from using those types of markers to the use of specific STR loci using PCR and silver staining technology. He is familiar with appropriate statistical tests for the validity of databases which he uses.

638 In his research and studies, Dr Mitchell has looked at inbreeding in that sense and calculated Fst values for the population groups he was studying.

639 This very brief description of his qualifications, training and experience does not do justice to his life's work in this specialised field, but it is adequate for present purposes. I found Dr Mitchell to be a truthful witness who was attempting to assist the Court. He was qualified to the relevant subject matters. I regarded him as an expert and I had regard to his opinions.

640 Once again, a substantial body of evidence was led in support of the challenge to the evidence proposed to be led by the Crown but it is not necessary to do more than briefly summarise the issues and the evidence led in support of the various contentions.

641 Forensic scientists tend to divide the population into three main varied groups - Caucasian, Asian and sub-Sahara African, as well as Indigenous in particular countries. In Australia the groups are Caucasian, Asian and Aboriginal. The evidence discloses that the Caucasian and Asian populations have sub-populations. For example, Italian and Scottish people are sub-populations of the Caucasian race. Thai, Vietnamese and Chinese people are sub-populations of the Asian race.

642 Mr Pearman reported that the chance of finding the profile of the accused in another person in the population is one in a million. In fact, his calculation is quite different, but it was the policy of the Forensic Science Centre to report in those terms even when the result of the calculation is one in a very much greater figure.

643 Having developed databases, the frequency of the presence of each allele at each locus in each database was calculated in percentage terms. Those frequencies were used in the calculations.

644 I accepted the evidence of Mr Pearman and Dr Buckleton that there are two acceptable methods. The first is what is known as the product rule and the second is known as a match probability or, as it is often called, Equation 4.10, because it is included in that paragraph of the report of the NRC Report II. The product rule method requires that relevant states of independence, or equilibrium, exist in the databases. There must be independence between alleles at each locus, which is known as Hardy Weinberg equilibrium and there must be independence between each locus and the other loci, which is known as linkage equilibrium.

645 One of the purposes of sending the databases to Professor Weir and Dr Buckleton was to see if those states of independence existed. After applying appropriate tests, which need not be described, they concluded that because of the limited power of the tests, they could not exclude that there may be mild disequilibrium between alleles at each locus and between loci. They suggested that the match probability or Equation 4.10 method be used which does not, in the opinion of Dr Buckleton, require either of these states of independence to exist. He said that the tests used, when applied to databases of a few hundred individuals, do not have sufficient power to show that the underlying population is not in Hardy-Weinberg equilibrium or is sub-structured or is admixed. He expressed the opinion that the history of human populations of forensic importance shows that they have been subject to admixture and are sub-structured.

646 I accepted the evidence of Dr Buckleton that forensic scientists use either the product rule or the match probability, or Equation 4.10, approach and the latter is used extensively in the British Isles, and in laboratories in the United States of America, New Zealand and some laboratories in Australia. The Equation 4.10 method is accepted by forensic scientists. It is the most conservative of the other methods of calculation available. Both Mr Pearman and Dr Mitchell accepted that the Equation 4.10 was an accepted approach.

647 The Forensic Science Centre used Equation 4.10 in the present case with an Fst value of three per cent and a confidence limit of 95 per cent. Using software, this match probability was one in 90.558 billion.

648 Fst is the measure of co-ancestry or relatedness of alleles and reflects the probability that alleles within a population have a common ancestor. It is necessary to know the level of that ancestral relationship between people. Population geneticists undertake that task by using an Fst value. Scientists have estimated this level of relatedness among Caucasians as less than one per cent. The use of three per cent is conservative. Dr Buckleton explained that an Fst value of three per cent is based upon the premise that all Caucasians are related to the level of second cousins, which is obviously factually incorrect and therefore conservative. According to Dr Buckleton, this percentage value easily accommodates for any degree of relatedness within the Caucasian community.

649 The confidence level of 95 per cent was explained by Mr Pearman and Dr Buckleton in this way. If 200 persons are profiled and allele frequencies are determined on that basis and the process is again undertaken with 200 different persons, slightly different values would be obtained for the allele frequencies simply because different people within the same population are being sampled. That sampling variation is taken into account by use of a confidence level which defines, with some certainty, that the true value lies between a common value and a rare value. This means that it is certain that 95 per cent of the time the true allele frequency will fall between the upper limit and the lower limit. In the present case the upper confidence limit was one in 90 billion and the lower confidence limit was one in 272 billion and so the figure adopted is the conservative and lower figure.

650 Mr Pearman presented this figure as a likelihood ratio which, he said, means that the probability or likelihood of seeing a second unrelated person with the same DNA profile is more rare than 1 in 90 billion which, in the present context, means that the crime scene stain KO22C is greater than 90 billion times more likely to match the profile of the accused if he left it, than if it was left by an unknown and unrelated person. Dr Buckleton put it this way. He said that it is about 90 billion times more likely if the accused donated the stain KO22C, than if it was donated by a random person.

651 Both Mr Pearman and Dr Buckleton said that the two databases were acceptable and valid for this purpose and that it was acceptable to combine the THO1, FES and F13 loci of the Quadruplex loci with the seven Profiler Plus loci at which the accused showed a profile. Both of these witnesses also said that the selection of a Caucasian database was appropriate as the accused is Caucasian and that the racial group where it is most likely to see a second profile, the same as the accused, is in the same racial group. Therefore, to use the race of a suspect is the more conservative database to use.

652 Also, both Mr Pearman and Dr Buckleton expressed the opinion that the frequency of alleles in both databases could be used in the calculation using Equation 4.10. Their evidence was that the creation of racial databases is accepted and is the usual practice by forensic scientists and is preferable to the creation of general databases.

653 I now turn to the grounds of the challenge by the defence.

654 Whilst the particulars of the challenge do not raise an issue about the accuracy of the South Australian Profiler Plus database, it had to be considered whether that database was accurate for the purpose for which it was to be used. I concluded that it was and the remaining few errors were of no consequence. That is the effect of the evidence of Mr Pearman and Dr Buckleton. I mention that at the trial evidence was given of fresh calculations having been made after the few remaining errors had been corrected and the match probability was greater than one in 90 billion.

655 I need not repeat the particulars of the first ground. I accepted the evidence of Dr Buckleton and Mr Pearman that the DNA profile of the accused is likely to be more common within his own race, the Caucasian race, than in any other and therefore the use of the Caucasian database was not only appropriate but was most favourable to him and accorded with the practice accepted by the forensic science community.

656 As has been mentioned, the evidence of Dr Buckleton as to the appropriate Fst value was that it is about one per cent. The use of the value of three per cent is conservative by a substantial margin and therefore it is unnecessary to calculate a precise figure. Also the evidence of Dr Buckleton, which I accepted, established that independence between loci in the sub-population of interest, which includes the perpetrator, need not be established when using Equation 4.10 which is a view widely accepted by forensic scientists. Dr Mitchell expressed a different view. He said that the Fst value does not take account of any possible independence between alleles at loci or between loci. Also, he said that the two databases could not be combined as the same protocol for establishing racial characteristics had not been used and because the same individuals were not profiled in the databases. Dr Atchison expressed the same view.

657 I thought that these differing opinions were matters of fact to be resolved by the jury at the trial assisted by appropriate explanations and directions: R v Jarrett at pp451ff; see also R v Lisoff [1999] NSW CCA 364 at p14. Of course, if I accepted the evidence of Dr Atchison and Dr Mitchell and rejected the contrary evidence of Dr Buckleton and Mr Pearman and concluded that their views did not form part of the body of knowledge of the forensic science community, a question of admissibility could arise. I did not form that view. Consequently, I regarded the evidence as admissible despite the differing opinions.

658 Dr Atchison and Dr Mitchell both expressed the view that even with the Equation 4.10 approach, linkage equilibrium must be established. It may be seen that there is a difference of opinion between them and Dr Buckleton and Mr Pearman. There was a reference to scientific authority by Dr Buckleton in support of his view which I need not repeat. It was submitted by Ms Abraham that Dr Mitchell lacked expertise in the use of Equation 4.10 for forensic purposes and his opinion should not be preferred, and due to a lack of understanding on the part of Dr Atchison that his opinion should not be accepted.

659 I regarded this issue as a matter for the jury. I did not reject the evidence of Dr Buckleton or Mr Pearman which could have raised an issue of admissibility.

660 There was also a clear difference of opinion between Dr Buckleton and Mr Pearman and Dr Mitchell and Dr Atchison as to the use of both databases. I also regarded that matter as an issue for the jury. I did not reject the evidence of Dr Buckleton or Mr Pearman.

661 I now turn to the second ground of the challenge which is that evidence of the use of the likelihood ratio approach is inadmissible because it is meaningless without using the calculation known as Bayes' Theorem. This theorem is complex and need not be set out for present purposes. It may be seen in Aitken and Storey, The Use of Statistics in Forensic Science at p120. A likelihood ratio is a component of the theorem and involves calculations of the probability that a suspect is the offender and the probability that the suspect is not the offender. The ratio of those two probabilities is the likelihood ratio for the purpose of Bayes' Theorem. The theorem is a mathematic model for the reaching of a conclusion by taking into account all relevant evidence in the case. It was considered by the Court of Criminal Appeal in R v Adams [1966] 2 CrAppR 467. The defence had been permitted at trial to lead evidence from an expert as to the use of Bayes' Theorem in a rape case involving DNA evidence, the Crown having accepted that it was a valid method for looking at non-statistical matters in statistical terms. Rose LJ, in giving the judgment of the Court, observed at p481:

"... the theorem can only operate by giving to each separate piece of evidence a numerical percentage representing the ratio between probability of circumstance A and the probability of circumstance B granted the existence of that evidence. The percentages chosen are matters of judgment: that is inevitable. But the apparently objective numerical figures used in the theorem may conceal the element of judgment on which it entirely depends. More importantly for present purposes, however, whatever the merits or demerits of the Bayes Theorem in mathematical or statistical assessments of probability, it seems to us that it is not appropriate for use in jury trials, or as a means to assist the jury in their task. In the first place, the theorem's methodology requires, as we have described, that items of evidence be assessed separately according to their bearing on the accused's guilt, before being combined in the overall formula. That in our view is far too rigid an approach to evidence of the type that a jury characteristically has to assess, where the cogency of (for instance) identification evidence may have to be assessed, at least in part, in the light of the strength of the chain of evidence in which it forms part. More fundamentally, however, the attempt to determine guilt or innocence on the basis of a mathematical formula, applied to each separate piece of evidence, is simply inappropriate to the jury's task. Jurors evaluate evidence and reach a conclusion not by means of a formula, mathematical or otherwise, but by the joint application of their individual common sense and knowledge of the world to the evidence before them."

The use of the theorem was rejected by the Court, which re-affirmed the usual approach to scientific evidence as being appropriate, that is to assess the evidence and reach a conclusion about it. That decision was affirmed in Doheny and Adams at p375.

662 It was argued by the Defence that because Bayes' Theorem may not be used in cases of this nature, nor can a likelihood ratio because it is part of the theorem. Dr Atchison said that the likelihood ratio is part of Bayes' Theorem. Dr Buckleton said that the likelihood ratio is provided to courts without implying the use of Bayes' Theorem. I accepted that evidence. He referred to passages of the second report of the National Research Council in 1999 on the Evaluation of Forensic DNA Evidence (NRC Report II) which support that view and he mentioned other scientific publications and tests which, he said, also support that view.

663 In my view, this ground of the challenge also fails. I accepted the evidence of Dr Buckleton that reports are made using a likelihood ratio in the United Kingdom, parts of the United States of America and some laboratories in Australia. In the use of a likelihood ratio by forensic scientists in the manner described by Dr Buckleton and used by the Forensic Science Centre, other evidence, for example opportunity, alibi or confession, is not taken into account as would occur with the use of Bayes' Theorem.

664 I mention one other matter which was advanced by Dr Atchison. He said that as the denominator of the likelihood ratio points to the hypothesis that the profile seen does not come from the suspect but from some unrelated person, it is necessary when calculating the denominator to take account of laboratory error rates in so far as they may produce a false match between the DNA of the suspect and that found in the crime scene sample. It is the errors which are uncorrected which must be taken into account. Dr Atchison could not advance any way in which such an error rate could be calculated. He said that it was logically impossible to do so because the errors to be considered are unknown errors. The consequence, he said, is the likelihood ratio cannot be calculated.

665 I rejected this evidence. There is no support for this opinion to be found in the literature as disclosed in the evidence. Dr Buckleton said that an error should not be taken into account and that view is expressed in NRC II and other publications. His view is that the possibility of error is a separate matter. Mr Pearman said that there is much evidence to show that an error rate cannot be calculated. He could not see any difference between a frequency or a likelihood ratio with regard to an error rate.

666 I accepted their evidence. If the tribunal of fact concludes that there is a reasonable possibility of an error causing an incorrect match, be it in the handling of samples, or in the laboratory or in any other way, there could not be a finding of a match between the DNA of the accused and that in the crime scene sample to the required degree of proof, with the consequence that the DNA part of the case would collapse and there could be no need to consider the statistical evidence.

667 As to the third ground I saw no reason to exclude the evidence of statistical calculation in the exercise of discretion. I concluded that the evidence was admissible. The discretion does not fall to be exercised unless there is prejudice "additional to, or distinct from, the detriment to the accused's interests involved the probative force of the evidence": Duke per King CJ at p48. There was no such additional prejudice. I repeat the observations I made in Jarrett at pp457-458.

668 For these reasons I admitted the evidence of Mr Pearman and Dr Buckleton which the Crown proposed to lead.

Kimpton et al, "Evaluation of an automated DNA profiling system employing multiplex amplification of four tetrameric STR loci": International Journal of Legal Medicine (1994) 106 302-311

[2] Report of the European DNA Profiling Group (EDNAP): Forensic Science International 65 (1994) 51-59

[3] Report of the second EDNAP collaborative STR exercise: Forensic Science International 71 (1995) 137-152

[4] Report of the third EDNAD collaborative STR exercise: Forensic Science International 78 (1996) 83-93

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[20]: TWGDAM Validation of Amp_FISTR_ ProfilerTM: Website Reference: http://www.promega.com/geneticidproc/ussymp8proc/23.html:

[21] Validation of Amp_FISTR_ ProfilerTM STR Multiplex for use in Forensic Casework: Website Reference: http://www.promega.com/geneticidproc/ussynmp8proc/ab39.html

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[24] Op cit Forensic Science International 89 (1997) 185-197

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[28] Op cit, Forensic Science International 89 (1997) 185

[29] Op cit, Forensic Science International 91 (1998) 55-70

[30]Frégeau et al, "Fingerprint Enhancement Revisited and the Effects of Blood Enhancement Chemicals on Subsequent Profiler Plus Fluorescent Short Tandem Repeat DNA Analysis of Fresh and Aged Bloody Fingerprints": Journal of Forensic Science 2000; 45(2): 354-380

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[46] Sweet et al, "Saliva from cheese bite yields DNA profile of burglar: a case report" International Journal of Legal Medicine (1999) 112: 201-203

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[50]Kimpton et al, "Evaluation of an automated DNA profiling system employing multiplex amplification of four tetrameric STR loci": International Journal of Legal Medicine (1994) 106 302-311

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