R v Ryan [2002] VSCA 176

5. On 19 October the jury returned verdicts of guilty on all charges. In consequence, and after hearing a plea in mitigation of penalty, on 30 January 2001, the sentencing judge imposed an effective sentence of imprisonment of five years with a non-parole period of three years being fixed.

8. It is not necessary for reasons which will shortly emerge, to set out the individual sentences imposed or the orders for cumulation made. Nor is there any need, in the particular circumstances of this matter, to elaborate upon the precise nature of the allegations advanced against him or the detail of the evidentiary base upon which the prosecution case rested. It is sufficient, we consider, to state that, the complainant, a woman of mature years, gave evidence that she was alone in her home in Bairnsdale at about 10 p.m. on Wednesday 2 December 1998 when a male intruder entered through her bedroom window which was partially open and unlocked. She screamed for assistance and endeavoured to open a security door to make her escape. However, the intruder intercepted her, threw her to the floor and thereafter committed a number of serious sexual offences against her before he eventually left.

11. There was, for practical purposes, in that situation, a single issue raised for determination in the trial, namely, could the prosecution establish beyond reasonable doubt that the applicant was the perpetrator of these offences. This, in turn, was dependent upon the admissibility of evidence of the possible presence of the DNA of the applicant at locations within the premises. It is clear, as counsel for the Crown has conceded before us, that without such evidence a verdict of guilty could not properly have been returned against him.

14. Against that background, and although the applicant sought leave to appeal against his convictions on a number of grounds, it is necessary to address only one of them, namely, that:

- the learned trial judge erred when he allowed Dr Gutowski to give evidence of the result of DNA testing when he had not done the testing or supervised it.

18. The prosecution attempted to establish the presence of the applicant through the evidence of a single witness, Stephen Gutowski, a forensic scientist employed by the Victorian Forensic Centre. He gave evidence that, in his opinion, biological material which he understood had been collected from the victim's home contained DNA which corresponded with the DNA that he believed had been extracted from a blood sample secured from the applicant. He calculated that the DNA found at the scene was 1.5 billion times more likely to come from the applicant than from another Aboriginal person. This evidence, we should add, is the subject of other grounds of appeal which it is not necessary to address at this stage.

21. Dr Gutowski was at that time employed in a senior position in the Biological Examinations Branch of the laboratory. During cross-examination he stated that biological materials, such as blood and semen are prepared in that branch for submission to another branch called the DNA Science Branch where the actual examination is conducted. Although in a general sense, he was responsible for the conduct of such examinations, it became clear that Dr Gutowski played no part whatever in the collection or examination of any of the materials that purportedly contained the DNA of the applicant. When counsel for the applicant queried the position, Dr Gutowski indicated that his evidence was based entirely upon examination of computer-generated printouts, the value of which was dependent upon a factual substratum of work and investigations about which no evidence was adduced before the jury.

24. Counsel for the applicant then objected to the reception of this opinion on the basis that it rested on hearsay evidence. However, the learned trial judge ruled that whilst he accepted that this was the case, the opinion was nevertheless admissible. He stated:

"In circumstances like this there is a practical consideration and there is a presumption of regularity. [He's] giving an opinion on material that he relies on as being accurate. Now he can give his opinion. You can say, I suppose, well how much weight can you give that because you don't know what's behind it. That's his opinion on someone else's work even though he supervises."

28. It is, as counsel for the Crown has conceded, quite clear that his Honour fell into error in so ruling. There was simply no evidentiary basis to support the opinion which accordingly should not have been put before the jury. The situation requires no elaborate exposition of the legal principles nor is the extensive citation of authority required with respect to such a basic proposition. An expert witness is, of course, entitled to draw upon what might be described as the general body of learning or experience accepted by those with expertise in the relevant discipline when giving opinion evidence. However, as Heydon, J.A. stated in Makita (Australia) Pty. Ltd. v. Sprowles:

"The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved." [1]

32. As the evidence of Dr Gutowski was the only evidence upon which a conviction could be based, the position is patently clear. The appeal had to be allowed and the conviction set aside

35. As earlier indicated, the question then arose as to whether or not a retrial should be ordered. As a general proposition:

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case."[2]

39. In the present matter, the prosecution simply failed to adduce any admissible evidence whatever in relation to what was in effect the single issue before the jury. No satisfactory explanation has been proffered as to how this came about or how it is that two years elapsed before the Crown concession that the trial had miscarried was made.

42. The situation is further complicated by the fact that both the blood sample and the database records relating to the applicant's DNA typing were destroyed in July 2001 and whilst the appeal was pending. This, we understand, occurred as a consequence of some misunderstanding within the laboratory. The effect would be, if a new trial were to be ordered, that a further sample would have to be secured and new comparisons made. In other words, the prosecution would have to mend its hand, not only by calling some of the evidence that it failed to adduce at the earlier hearing but by creating a new evidentiary foundation for a trial which almost certainly could not be conducted for at least several months. Mr Kayser, who appears for the Crown, has said it would probably be necessary to call at least six and possibly up to 12 witnesses additional to those called at the trial. It was, of course, assumed by the prosecution that the opinion of Dr Gutowski would be supported by this further evidence and accordingly an adequate evidentiary foundation would then exist.

45. The situation with which the Court is confronted in this matter is quite different from that considered by the courts in Parker v. The Queen[3]; King v. The Queen[4] and R. v. Cervelli[5], in each of which a retrial would have involved a differently formulated Crown case. Here, two years after a clear miscarriage of justice has occurred, if that course were to be adopted, a retrial would be ordered in the absence of a presently existing evidentiary base capable of supporting a conviction and in the anticipation, perhaps reasonable but nevertheless a matter of conjecture, that such a base may be established by securing new evidence.

48. Whilst the circumstances are clearly different, this case attracts the operation of the same underlying considerations. The courts recognize that the community which they represent has a powerful interest in the prosecution of those suspected of the commission of serious criminal offences against whom a properly arguable case based on admissible evidence can be seen to exist. It is also accepted that persons should not be subjected to the coercive processes of the criminal law with its potential for loss of liberty unless such a case can be made out. Where it is evident to an appeal court after the completion of a criminal trial that on the evidence adduced before the trial court the prosecution was doomed to failure, only in rare situations would a retrial be ordered. The simple failure of the prosecution to adduce crucial evidence which may have been available to it would not satisfy this requirement.

51. It is also relevant to the exercise of discretion in this matter that more than two years have elapsed since the trial was conducted and the applicant has already served a substantial portion of the non-parole period fixed by the trial judge. Each of these considerations also militates against the conduct of a further trial.

54. Having regard to all of these circumstances, in our opinion, the proper course for this Court to adopt is to direct that no retrial should be ordered and that a verdict of acquittal be entered.

[1] [2001] NSWCA 305; (2001) 52 N.S.W.L.R. 705 at 731-732.

[2] Director of Public Prosecutions (Nauru) v. Fowler [1984] HCA 48; [1984] 154 C.L.R. 627 at 630 per Gibbs, C.J., Murphy, Wilson, Deane and Dawson, JJ.

[3] [1997] HCA 15; [1996-1997] 186 C.L.R. 494.

[4] [1986] HCA 59; [1986] 161 C.L.R. 423.

[5] [1998] 3 V.R. 776.