R v Noll [1999] VSCA 164

Court of Appeal (Vic)|1999-10-07|Before: PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A.

The applicant, who is now aged 52, pleaded not guilty in the Supreme Court to a presentment containing seven counts. After a trial occupying 16 days in October 1997 he was convicted on three counts of false imprisonment and one count of attempted armed robbery. The learned trial judge heard a plea for leniency on his behalf and took time for consideration. On 20th November 1997 his Honour sentenced the applicant to four years' imprisonment on each count. He directed that one year of the sentence imposed on each of counts 2, 3 and 4 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of seven years' imprisonment. A non-parole period of four-and-a-half years was fixed and a declaration made regarding pre-sentence detention. The applicant originally sought leave to appeal against both conviction and sentence, but the latter application was abandoned by leave of the Court granted at the beginning of the hearing: see Rule 2.10(3) of the recently amended Supreme Court (Criminal Procedure) Rules 1998.

Before turning to the grounds of appeal against conviction, I shall say something of the circumstances of the offences of which the applicant was convicted.

In the early hours of Easter Tuesday, 13th April 1993, the applicant and two accomplices travelled to an orchard property at Tatura owned by an elderly couple, Mr. and Mrs. Cossari. They were armed, masked and wearing baseball caps. Mrs. Cossari heard them gain entrance to the house by smashing the glass in the kitchen door. When she went to investigate, she was grabbed, shaken, pushed back into the bedroom and forced to the floor, where her hands were tied behind her back with insulation tape. Her husband grabbed an unloaded Winchester rifle from beside the bed but it was wrenched from him and used to strike him on the head. He too was tied up. When Mrs. Cossari asked, "Why are you doing this?" she was answered with a blow to the face.

Mr. and Mrs. Cossari's son Thomas came to investigate. He was seized by the back of the hair and thrown to the floor. A gun was placed behind his head and one of the offenders said, "If you move, I'll blow your brains out." His hands were also tied behind his back. A demand for money was made and, to intimidate the victims, shots were fired into the walls and ceiling of the house.

In what his Honour rightly described as a courageous endeavour to protect his parents, Thomas Cossari told the intruders that there was money outside in the packing sheds. He then led one of them towards the part of the orchard where fruit bins were stacked. On the way he was shot with a handgun, receiving a wound in the area of the right chest muscle. He was told that, if he was lying, he would be shot again. His plan was to try to escape from the darkened area near the bins, which were double-stacked in rows separated by corridors about a metre wide. When they reached that area, he said that the money was beneath one of the bins that he knew would be difficult to lift.

In an attempt to shift the bin Thomas's captor let him go. Once he was released, he managed to snap the tape binding his arms and scrambled into one of the top bins with a view to jumping out on the other side of the row. Inside the bin, to his surprise, he found a sawn-off shotgun. It was suggested by the prosecution that it may have been placed there by Robert Airey, who was one of the offenders. Thomas grabbed the gun and discharged it at close range in the direction of Airey. The shot missed but the discharge of the hot gases from the muzzle of the weapon caused a burn to Airey's chest and the right collar of the dust-coat he was wearing was damaged. After an unsuccessful endeavour to fire the gun a second time, Thomas swung it as a club, striking, he believed, one of the two offenders who were then in the vicinity of the bins. Thereafter a number of shots were fired at him whilst he remained in the bin, seriously wounding him. He was nevertheless able to clamber out. Having done so, he was knocked to the ground.

The Crown case was that the applicant was the man who shot Thomas Cossari both en route to the bins and when he was inside the bin where the shotgun was found. (The expert evidence was that three .22 fired cartridge cases, found in Mr. and Mrs. Cossari's bedroom, as well as four found near the bins, were fired from the same weapon. The one bullet that remained in Thomas's body, which was later surgically removed, was of that calibre.) His Honour had no doubt that the jury would have been satisfied not only that the applicant was present at the bins but also that he was the person whom Thomas struck when he used the shotgun as a club, but it was not proved that it was the applicant's hand that pulled the trigger on either of the occasions that Thomas was shot. Having regard to the way the prosecution presented its case, he bore no criminal responsibility for that shooting.

As the events at the bins unfolded, Mr. Cossari managed to free himself and obtain a Biretta pistol from the pocket of a jacket he kept near his bed. Thus armed, he fired a shot at the intruder who had been left to guard him and his wife. The offender immediately turned and ran, pursued from the house by Mr. Cossari. The applicant and Airey abandoned Thomas and fled to their car. They departed the scene to the accompaniment of a volley of shots from the Biretta, two of which struck their retreating vehicle. Thomas, who was in need of urgent medical treatment, managed to stagger back to the house. He was later taken to hospital.

It is unnecessary to notice the circumstances in which the applicant was apprehended. More important for present purposes was a cap with the word "Captain" on it found at the bins. There was a contact-type bloodstain on the inner lining, which would have been in contact with the right side of the head of a person wearing it. Two witnesses who saw the applicant later that morning described a graze on the right side of his forehead towards the hairline. Blood analysis, which included DNA profiling, was said to match the blood on the cap with that of the applicant. The evidence of the alleged match was given by Dr. Gutowski, who relied in part on tests conducted by Mr. Hall and Dr. Tzaikou.

The grounds of appeal against conviction read:

"1. The evidence relating to the deoxyribonucleic acid ('DNA') analysis presented by Dr. Gutowski was incomprehensible or alternatively could not be understood by the jury.

2. No evidence or sufficient evidence was presented to establish Dr. Gutowski's knowledge or expertise in the subject of statistical analysis to qualify him to express statistical conclusions.

3. The evidence relating to the statistical analysis presented by Dr. Gutowski was incomprehensible or alternatively could not be understood by the jury.

4. The directions to the jury on the subjects of the DNA evidence and the statistical analysis were inadequate because:

(a) the jury should have been directed not to approach the issue of chance upon any strictly mathematical basis; and

(b) the directions were constructed in such a way as to permit the jury to accept the conclusions expressed by the experts and to avoid proper analysis."

There are essentially three complaints: first, that Dr. Gutowski should not have been permitted to express opinions on statistical questions, because he lacked the requisite expertise, so that his evidence was to that extent inadmissible (ground 2); secondly, that not only the statistical opinions he expressed but even the evidence he gave within his field of expertise was incomprehensible or could not be understood by the jury (grounds 1 and 3); and, thirdly, that the learned judge's directions to the jury were inadequate for the reasons given in ground 4(a) and (b). The concession to which I shall refer later is not relevant to ground 2.

The technique of DNA profiling has often been described. See, for example, the cases cited in R. v. Pantoja [No. 1] (1996) 88 A.Crim.R. 554 at 558 fn. 3. In one of them, R. v. Jarrett [1994] SASC 4596; (1994) 62 S.A.S.R. 443, Mullighan, J. said at 445-456:

"DNA is the abbreviation for deoxyribonucleic acid which is contained in the nucleus of cells in chromosomes in the human body. It is described as the building block of life and is the material, in most cells, that is the code for each of a person's characteristics, eg colour of hair and eyes, and is unique to each person except in the case of identical twins. DNA is consistent throughout the body and so, in the case of a male, the DNA in his blood is the same as in his semen. Each person has 23 pairs of chromosomes, one of each is inherited from each parent. The DNA in each chromosome has two strands which are held together by pairing mechanisms which are pairs of the bases. There are four different bases called A G T C [adenine, guanine, thymine and cytosine] which behave in a certain way; A always pairs up with T and G with C. There are about 3 billion base pairs along the strands of DNA and their sequence is responsible for the characteristics of a person. Almost 3 million sites vary from person to person.

The polymerase chain reaction (PCR) is a technique which amplifies or copies a small region of DNA millions of times. Only a small number of the bases are looked at by the PCR method. By using this method the type of DNA chosen is very variable from person to person. Once the chosen region is copied up there is produced two DNA fragments from each strand, one from each parent. One is longer than the other and they are separated. The PCR method provides a way of measuring the length of these two fragments which are known as alleles and their size is described by numbers. The two alleles together provide the genotype of a person."

Dr. Gutowski used methods based on PCR which, he said, had superseded restrictive fragment length polymorphism (RFLP) analysis: cf. The People v. Barney 10 Cal.Rptr. 2d 731 (1992) at 735.

The PCR technique and the significance of matching combinations were described as follows by Coldrey, J. in the course of a ruling given on 1st July 1994 at an earlier trial of the applicant and Airey:

"It is sufficient to state that the PCR test focuses upon small areas situated on different chromosomes of the long DNA molecule. These discrete loci are identified by the designations HLADQA1, D1S80 and HUMTHO1. Each locus has different forms or alleles of DNA. For example, in the case of HLADQA1 there are six different alleles, whilst the D1S80 [has] over 25 alleles. Since one allele is contributed by each parent there are varying numbers of possible combinations to be discerned in each site. For example, in the case of HLADQA1 there are 21 different combinations of the six alleles possible, whilst with D1S80 the combination will certainly be in excess of 100. Moreover, some alleles are more commonly to be found than others.

The significance of the matching allele combinations in the DNA in the suspect's blood and blood found at the crime scene, or upon items which may be associated with the commission of the crime, will depend upon the rarity or uniqueness of such combination within the general population. Possible frequencies of the combination of alleles in the general population are determined by reference to databases kept by the Forensic Science Laboratory in relation to each specific test.

In order to provide a reliable guide to such frequency in the general community, the databases from which such extrapolation is made must be representative of the general community, and the community from which the samples constituting each database is drawn must itself be in Hardy-Weinberg equilibrium (that is the population must effectively be a randomly mating one).

When recourse is had to the relevant database the results of each individual test may be statistically analysed to provide a population frequency for the combination of alleles revealed. Moreover, assuming the independence of each test (that is a lack of any significant statistical relationship between the results obtained from tests performed at each discrete locus) it is legitimate to utilize the product rule (that is the multiplication of the figure for population frequency at each locus) to obtain an overall figure for population frequency.

Again, assuming statistical independence, it is possible to include in such multiplication exercise the results obtained using different systems including, for example, the Gc protein test."

The blood on the Captain's cap and the applicant's blood were typed in four ways. Mr. Hall established that their Gc type was 1S. Dr. Tzaikou ascertained that their HLA type was 1.2,4. Dr. Gutowski's tests showed that their D1S80 type was 30/31 and their THO1 type 6/6. The frequency of those four types in the Victorian population was said to be approximately 1 in 3, 1 in 8, 1 in 360 and 1 in 23 respectively. Dr. Gutowski gave evidence that the four results were independent, so that it was permissible to multiply the frequencies. On that basis, he said that the likelihood of a random match was roughly 1 in 180,000; in other words, if everyone in Victoria were tested, one would expect of the order of 25 people to have that typing. (The product of 3, 8, 360 and 23 is 198,720. The approximate calculations imply a population of 4½ million.) Dr. Gutowski was a biochemist. He had no formal qualifications in statistics.

It is the statistical step in the reasoning that gives DNA evidence its probative value. In The People v. Barney at 742 it was called "the pivotal element of DNA analysis". As Hunt, C.J. at C.L., with whom Hidden, J. agreed, explained in R. v. Pantoja [No. 1] at 561:

"Where a number of blood tests - each of them operating differently from or independently of the others - have established a match between the suspect and the offender (in the sense that they have not excluded the suspect as such), the inference is that the greater the number of such tests the less the chances are that the suspect is not the offender. Very little more could be gleaned from such matches alone. The significance of those matches becomes far greater where it is possible to calculate the probability of the match having occurred by chance or coincidence. Databases have been built up which are said to demonstrate the probability that another person would share the particular blood type or would match the DNA of the suspect at a particular genetic marker. The greater the number of such matches the greater the probability, so that the statistics are calculated by multiplying the probabilities for each match."

The same point was made by James, J., with whom Wood, C.J. at C.L. agreed, in R. v. Pantoja [No. 2] (unreported, New South Wales Court of Criminal Appeal, 5th November 1998) at 37. Without careful examination, such evidence may appear to be more probative than it is: see R. v. Pantoja [No. 1] at 561-562 and R. v. Humphrey [1999] SASC 67; (1999) 72 S.A.S.R. 558 at 567-568.

In R. v. Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr. App. R. 369 the English Court of Appeal considered the procedures to be adopted in that country where DNA evidence was led. (For reasons that will appear later, the present case is not a suitable vehicle for this Court to undertake the corresponding task in Victoria.) The role of the scientist giving evidence was described as follows at 374D-E:

"He will properly explain to the jury the nature of the match ('the matching DNA characteristics') between the DNA in the crime stain and the DNA in the blood sample taken from the defendant. He will properly, on the basis of empirical statistical data, give the jury the random occurrence ratio - the frequency with which the matching DNA characteristics are likely to be found in the population at large. Provided that he has the necessary data, and the statistical expertise, it may be appropriate for him then to say how many people with the matching characteristics are likely to be found in the United Kingdom - or perhaps in a more limited relevant sub-group, such as, for instance, the caucasian, sexually active males in the Manchester area."

Subject to the concern as to confidence limits expressed in the next two paragraphs, I do not think that the evidence summarized in [18] travelled outside those limits. It is uncontroversial that independent frequencies may be multiplied.

In cross-examination, however, Dr. Gutowski said that he had not given any confidence limits because of the size of the databases. He believed that they were unnecessary with a database of more than 200. For example, the following questions were asked and answers given:

"So if you've got a database of more than 200, you can automatically apply that to the Victorian population, can you, without the use of confidence limits?---Well, if it's a Victorian database, yes.

Can you tell me why that's a valid thing to do, yourself?---Well, it has to stop somewhere. Obviously if you have say 10 or 15 different varieties of genotype that you can - that you can have, and you have a database of 10 or 15, then you're - the sort of predictions for the frequency in the general population are not going to be terribly accurate. If you have a database of 100,000 and 15 different varieties, then your predictions for the general population are going to be very accurate. Somewhere in between, one starts getting confidence that the predictions are not going to be too far wrong, and that's at around 200.

Why do you pick that figure?---Well, because you can - I've seen papers that look at the maths of this, and at around that figure with around the sort of number of alleles that we're looking at, you start to give reasonably accurate predictions.

In re-examination the figure 200 was said to be an arbitrary convention, which was ascribed to a "relatively august body" made up of "senior managers and scientists" of the International Society for Forensic Haemogenetics.

By contrast, in R. v. Milat (1996) 87 A.Crim.R. 446 a senior forensic biologist who had undertaken considerable study in forensic statistics and population genetics considered that a database should be at least 200 and that 95 per cent confidence limits should be the minimum required. That was said to be in line with the literature. See 447, 450 and 451. (Confidence limits of 95 per cent applied to the eight markers in R. v. Milat produced a range from as low as 1 in 54,000 to as high as 1 in 220,000.) A 95 per cent confidence limit also accords with expert evidence accepted by Coldrey, J. in the course of his ruling on 1st July 1994. On the voir dire Dr. Gutowski said that the size of the four databases was 262, over 800, 787 and about 650 respectively and that, if a confidence limit (presumably of 95 per cent) had been used, the likelihood of a random match would have been 1 in 124,000.

Nevertheless I do not think that ground 2 should be upheld. The attack on Dr. Gutowski's statistical competence at the conclusion of the voir dire did not focus on confidence limits but on his inability to explain the statistical theory underpinning his evidence. He had said, as he was later to say before the jury, that confidence limits were unnecessary with a database over 200. He was cross-examined as to why, but it was not suggested that he was mistaken. No application was made to adduce further evidence on appeal and it is very unlikely that such an application would have been successful: see Ratten v. R. [1974] HCA 35; (1974) 131 C.L.R. 510 at 516-520 and Kenny, J.A.'s judgment in R. v. Challoner (unreported, Court of Appeal, 28th July 1998) and compare R. v. Doheny and Adams at 371C. In those circumstances I do not think that we can say that the learned judge erred in ruling that Dr. Gutowski could give expert evidence of the kind he did.

Turning to grounds 1 and 3, it is true that Dr. Gutowski's evidence was led in a fashion that would initially have confused the jury. Nothing is to be gained by giving chapter and verse for that conclusion. It is sufficient to say that, after three pages of questions, the learned judge said that some of the evidence was meaningless. His Honour asked what it was linked to and said that the jury could not understand it. It would have been better if the witness had first explained DNA and DNA profiling, so that the jury could understand what the results meant in relation to each item of evidence. At the end of the day, however, the jury would have appreciated that the blood on the Captain's cap and the applicant's blood had been tested in four different respects, that they were said to be the same in those respects and that that would be true of only about 25 people in Victoria. Whether or not that would be sufficient in other cases, it was sufficient here having regard to the way in which the trial was conducted. For defence counsel, in the course of his final address, said that it was no longer part of his case to contest that it was the applicant's blood on the Captain's cap.

So, too, no exception was taken to the charge in either of the respects mentioned in ground 4. That is not surprising in view of the concession to which I have just referred, whether or not it counted as an informal admission under s.149A of the Evidence Act 1958. It is therefore unnecessary to consider what a charge on DNA evidence should cover. When that does become necessary, reference may be made to R. v. Vivona (unreported, Court of Criminal Appeal, 12th September 1994) at 5, R. v. Jarrett at 457, R. v. Pantoja [No. 1] especially at 559, 563 and 564, R. v. Milat at 452, R. v. Pantoja [No. 2] in the judgments of James, J. at 20-35 and of Adams, J. at 1-2, and R. v. Doheny and Adams at 372G-375E. DNA profiling establishes no more than that the accused could be the offender, not that he or she is the offender, and judges and prosecutors need to be aware of the fallacy mentioned in R. v. Milat at 451 fn. 22 and in R. v. Doheny and Adams at 372G-373E. Some of the authorities refer to proof beyond reasonable doubt, or in the English case to the jury's being sure, about aspects of the DNA evidence. Those observations must be read subject to the explanation of Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 in R. v. Kotzmann [1999] VSCA 27.

Notwithstanding Mr. Gurvich's comprehensive submissions, no wrong decision of a question of law or miscarriage of justice is shown in the instant case. For those reasons, the application must be dismissed.

Supreme Court (Criminal Procedure) Rules 1998

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