R v Rye [2007] VSCA 247

3 On the morning of the fire an autopsy on the body of the deceased was conducted by pathologist Dr Burke. Dr Burke found a cartilage fracture in the area of the neck of the deceased. He identified the cause of her death as being neck compression caused by the use of hands, or by the use of some kind of ligature. No soot was found in the airways of the deceased and Dr Burke concluded that the deceased had died prior to her body having suffered damage by fire. Upon examination, a laceration of eight centimetres was found inside and at the opening of the vagina of the deceased. In the mid-point of the laceration was found a pubic hair which was sent to the Forensic Science Centre for DNA analysis. In addition, bruising was found to be associated with the vaginal lacerations. Foreign material, which was later found to be consistent with plaster, was found in the vagina. Blood and bruising were also found in the mouth of the deceased. Dr Burke concluded that the cause of the laceration and bruising in the vagina and the bruising in the mouth was blunt force trauma. He said that the vaginal injury was unlikely to have been caused by conventional sexual intercourse, but could have been caused by a foreign object. Dr Burke concluded that the injury to her vagina had been caused within 24 hours of the death of the deceased.**

**4 The deceased had moved into the Tamar Street house on 17 January 2002 having ended a relationship with the applicant in December 2001. That relationship had commenced in 1998. Soon thereafter the applicant and the deceased both contributed to the purchase of a house in Kelvin Court, Ringwood, where they lived together with the deceased's two daughters, until the breakdown of their relationship in December 2001. After the breakdown of the relationship, the applicant continued to live at the Kelvin Court house. That house was 1.4 kilometres from the deceased's house in Tamar Street Ringwood.

5 On 27 April 2004 the applicant was charged with the murder of the deceased. On 12 August 2005, a jury found him guilty of murder and he was sentenced to be imprisoned for a term of 20 years and ordered to serve a non-parole period of 15 years' imprisonment. He now seeks leave to appeal against his conviction on the single ground that the trial judge erred in admitting into evidence the evidence relating to the DNA analysis of the pubic hair found in the vagina of the deceased, and in particular, evidence that such analysis could not exclude the applicant as being the source of the DNA material.

6 Before turning to the ground of appeal relied upon by the applicant it is necessary to summarise briefly the evidence before the jury.**

**7 There was evidence that in the latter part of 2001 and prior to the death of the deceased the relationship between her and the applicant was strained. There was evidence of a number of occasions during this time when as a result of arguments with the applicant, the deceased with her daughters, stayed overnight in a motel or alternatively stayed with friends. By late October 2001 the deceased moved out of the house she had shared previously with the applicant and stayed at the house of a friend. By 17 December she had begun to make arrangements to move into the house in Tamar Street Ringwood.

8 Cameron Moody had been a friend of both the deceased and the applicant since 1988. From time to time up until late October 2001 he had dinner with the applicant and the deceased and her two daughters, who were then aged eight and ten years. Invariably he had dinner with both the applicant and the deceased. On one occasion in late October 2001 he went to the house in which the deceased and the applicant then resided. The applicant was not there and he and the deceased and her children went to a nearby hotel for dinner. This was the only occasion when Mr Moody dined with the deceased in the absence of the applicant. After having dinner at the hotel the deceased, Mr Moody and the two children returned to the applicant's house. Mr Moody assisted one of the children with her homework. Soon thereafter the applicant arrived home. He appeared to be in a bad mood. He said that he was going to bed. Mr Moody and the deceased sat on a couch talking. Within minutes of saying he was going to bed the applicant returned to the room and said to the deceased 'You are fucking him, aren't you Sharon?'. She responded by saying something to the effect that the applicant was having an affair with his male hairdresser upon which the applicant started yelling and screaming. An argument then took place between the applicant and the deceased. The deceased took off her engagement ring, after which the applicant grabbed her arm. Mr Moody, who gave evidence that he had told the applicant that he was 'crazy' to think that he was having an affair with the deceased, left soon afterwards.

9 The deceased's two daughters travelled to Malaysia in December 2001 to spend Christmas with their father during their school holidays. The deceased travelled to Adelaide between 21 December 2001 and 15 January 2002 and stayed with her younger sister, Heather Gorham. During that time the applicant made several telephone calls a day to the deceased. Ms Gorham gave evidence that on two occasions, and whilst the deceased was staying with her in Adelaide, she had spoken to the applicant who had seemed to be angry. On other occasions she had heard the deceased sounding angry and animated in her telephone conversations with the applicant. In particular Ms Gorham gave evidence that in the late afternoon on Sunday 6 January she and the deceased were at her home entertaining friends. The deceased's mobile phone rang. The deceased answered it. Ms Gorham heard the deceased say 'No Craig, no'. She said that from what she heard the deceased say, she understood the discussion to be about money. Ms Gorham's evidence was that after that phone call ended there were a number of calls made to the deceased's mobile phone which, after looking at her mobile phone, the deceased said were from 'bloody Craig again'. The deceased did not answer those calls. After that, phone calls were made to Ms Gorham's mobile phone and to her home phone. On one occasion Ms Gorham answered her mobile phone and the applicant told her 'I want to speak to Sharon, put her on'. The deceased refused to speak to him. Ms Gorham turned off her mobile phone. Following that, the house phone began to ring. It was not answered. Telephone records tendered before the jury reveal that between 5.35 pm on 6 January 2002 and 12.21 am on 7 January 2002 a total of 47 phone calls originating either from the applicant's mobile phone or his home phone, were made to the deceased's mobile phone, or to the mobile phone or home phone of Ms Gorham. Ms Gorham gave evidence that early on the following morning she heard the deceased's mobile phone ring and she heard the deceased talking on the phone. The phone records reveal that a phone call was made from the applicant's mobile phone to the deceased's mobile phone at 5.20 am on 7 January 2002. The duration of that phone call was just over 12 minutes.

10 Ms Gorham said that during the following days the deceased was telephoned on numerous occasions by the applicant. She overhead the deceased saying 'No, it is over' in response to some of those telephone calls. The telephone records tendered before the jury reveal that numerous phone calls were made from the applicant's mobile phone, or from his place of employment to the deceased's mobile phone every day thereafter whilst the deceased was in Adelaide with her sister.

11 The deceased returned to Melbourne on 15 January 2002 and moved into the house at 10 Tamar Street on 17 January 2002.

12 The last time Ms Gorham spoke to the deceased was by telephone late in the morning of 17 January 2002 at which time the deceased stated that she was 'doing some shopping'.

13 On 4 January 2002 the applicant telephoned a friend of the deceased, Maxine Barnes, and told her that he wanted the deceased 'back' and that he wanted to 'have sex with her one more time'. That was the only phone call that the applicant had ever made to Ms Barnes.

14 Another friend of the deceased, Karen Lewis, gave evidence that on 11 January 2002 the applicant telephoned her and told her of his desire to recommence his relationship with the deceased. She was unaware that the applicant knew her mobile phone number as he had never before called her. She urged him to accept that the relationship was over. He said 'I know that Sharon says 'no' to me all the time, but I know she doesn't mean no, I know what she really wants'. Ms Lewis urged him to leave the deceased alone. There was other evidence before the jury of arguments between the applicant and the deceased in late 2001 and early 2002 and of the failure of the applicant to accept that the relationship had ended.

15 Upon her return from Adelaide the deceased had spoken with another friend, Effy Iosifidis, by telephone and arranged to meet her on Friday 18 January 2002. Ms Iosifidis did not hear from the deceased and on Friday 18 January 2002 she tried to telephone the deceased at home and on her mobile phone without success. Another friend, Tessa Fraser, endeavoured to contact the deceased on Friday 18 January 2002 but the deceased's mobile phone was turned off. Ms Fraser had never had any trouble contacting the deceased by mobile phone before then. On Thursday 17 January 2002 the deceased had dinner with another friend of hers, Karen Suffern-Noble. The deceased told Ms Suffern-Noble that the applicant had come to her home that day and asked her for sex and that she had refused. The deceased left Ms Suffern-Noble's home shortly after 10.30 pm that night. On Friday 18 January 2002 Ms Suffern-Noble endeavoured to contact the deceased, both on the deceased's mobile phone and her home phone, but without success.

16 There was evidence before the jury that the next door neighbour of the deceased saw her washing her car on Thursday 17 January 2002. The neighbour saw a man arrive at the property and walk towards the front door of the deceased's house. He was driving a white car which the witness thought was a Magna. (The applicant drove a white Magna motor car.) The neighbour left her home at approximately 7.30 pm that evening to go to a supermarket. When she left her home the deceased's small black car was still in the driveway and the white car was still parked in the street. She said that when she went to work at approximately 10 am the next day, neither car was there. She did not see the deceased's car at the premises thereafter.

17 Another neighbour, Stephen Treloar gave evidence that on either a Wednesday or Thursday in the week before the fire he had been walking his dog in Tamar Street, Ringwood when he saw a woman washing her car in the driveway of 10 Tamar Street. He observed a male standing nearby. He observed the male approach the woman. She had her back to the male and she then turned around and pushed him aggressively in the chest. Mr Treloar said that he stopped and stared at the male for a short time before continuing his walk.

18 There was evidence before the jury that the deceased rarely turned her mobile phone off, so as to enable one or other of her daughters to ring her at any time of the day or night. It will be recalled that during January 2002 her daughters were with her former husband in Malaysia. Her former husband gave evidence that he had endeavoured to telephone the deceased from Malaysia on Friday 18 January 2002, but could not reach her because her phone was turned off. He had never known her to have her phone turned off at any time before then.

19 Another friend of the deceased, Suzanne Rolland, went shopping with the deceased on Wednesday 16 January 2002. Arrangements were made for the deceased to borrow Ms Rolland's lawnmower on Thursday 17 January 2002. The deceased borrowed the lawnmower on that date and told Ms Rolland that she was expecting a delivery of beds on Friday and that she would later have a discussion with Ms Rolland about dinner arrangements on Friday. There was evidence before the jury that the beds were in fact delivered at 5.45pm on Friday 18 January and placed on the porch as no-one appeared to be home. Ms Rolland endeavoured to telephone the deceased throughout Friday 18 January 2002 and found that her mobile phone was turned off. She rang the deceased's home phone and left a number of messages. At approximately 1 pm on Friday 18 January 2002 she drove to the house in Tamar Street. She observed that there was no car present and that the blinds were drawn. She observed an Optus card in the door. The evidence was that that card had been left in the door by an Optus technician when there was no answer at the door at 9.30 am that day. Ms Rolland said that she was concerned because 'no day goes by' that she and the deceased did not speak to each other. On Saturday 19 January 2002 she continued her endeavours to contact the deceased but without success. At 'about mid-morning' she left a message on the applicant's home phone answering machine expressing her concern. At approximately 11 am she drove to the Tamar Street house and again found no car at the house and found that the blinds were still drawn. There were beds on the verandah and with the help of her sons she moved them into the garden shed. At 4 pm that day she reported to police that she could not make contact with the deceased. At approximately 5 pm, having obtained the applicant's mobile phone number, she telephoned him. Ms Rolland told the applicant that she was concerned about the whereabouts of the deceased. The applicant informed her that he had seen the deceased on the previous Thursday and that she had told him she was going away to the beach because she needed time to think. He said that she wanted time away from everybody. He said that the deceased had said that she would switch off her phone. He told Ms Rolland that the deceased was tired of Ms Rolland telling her what to do. Ms Rolland told the applicant that she had contacted the police. He told her that that was not necessary and that the deceased had just gone away.

20 The following day, Sunday 20 January 2002, the Arson Squad came to Ms Rolland's home and advised her about the fire and about the finding of the deceased's body. At approximately 8 pm that day the applicant telephoned her and said that he had 'bad news'. Ms Rolland told him that she knew of the fire. She asked the applicant about the whereabouts of the deceased's car. He replied that he believed it was 'in for a service'.

21 The police attended at the Tamar Street house on 19 January 2002 to do a 'welfare check'. No doubt this occurred in response to the report made by Ms Rolland to police at 4 pm on Saturday 19 January about her concern. When police attended at the house in Tamar Street at 8.35 pm, no car was found in the driveway and all doors and windows were secure. All the blinds were closed. No lights could be seen. The police officer in question returned the following day after the fire and noticed no difference other than that the lawnmower had been moved approximately two metres away from the shed in which he had seen it situated the previous evening.

22 The black Mazda sedan registered in the name of the deceased was located in the car park of Ringwood railway station on 23 January 2002. There was evidence before the jury that it would take approximately seven minutes to drive from the deceased's residence to the Ringwood railway station. The vehicle was parked in a position obscured from the road. There was no damage to the car. Neither the locks nor the ignition had been forced. A key to the vehicle was found at the applicant's premises when they were searched subsequently by police.

23 Michael Morris, who was a long term friend of the applicant gave evidence of having had a number of lengthy conversations with the applicant during December 2001 and January 2002 whereby the applicant spoke of his desire to resume his relationship with the deceased. On the evening of Thursday 17 January 2002 the applicant came to Mr Morris's hairdressing salon at approximately 7.15 pm. At the hairdressing salon the applicant discussed his relationship with the deceased with a mature lady friend of Mr Morris. Mr Morris and the applicant then returned to Mr Morris's home soon after 8.00 pm. Further discussion took place about the applicant's relationship with the deceased, in the course of which Mr Morris suggested that the applicant 'leave her alone'. In the course of that conversation the applicant told Mr Morris that he had been to the deceased's house to fix her washing machine that afternoon and that the deceased had been 'amicable'. The applicant told Mr Morris that he and the deceased had cuddled as he left and that she had touched him on the outside of his jeans. The applicant left Mr Morris's house at approximately 9.30 - 9.45 pm. There was evidence before the jury that the distance from Mr Morris's home to the home of the applicant was 35 kilometres and that it would take approximately 44 minutes to drive that distance. Mr Morris gave evidence that he had told the applicant to go 'straight home'. Mr Morris said that that was because the applicant had been 'talking about Sharon, and it was just a follow up' to his earlier advice. Mr Morris then went to bed. Soon afterwards the deceased telephoned him. Telephone records show that the deceased telephoned Mr Morris at his home at 10.39 pm on Thursday 17 January 2002. In the course of the conversation the deceased told Mr Morris that the applicant had come to her home that afternoon and that he had fixed her washing machine. She told him that the applicant had wanted to have sex with her. She said that she could not do that. There is no evidence that the deceased was seen by or spoken to by any person after this telephone conversation.

24 Mr Morris gave evidence that at 6.15 am the next morning he telephoned the applicant at his home to 'see how he was' and to enquire as to 'whether he had gone straight home'. The applicant said that he had gone straight home.

25 A person who lived opposite the applicant gave evidence that she had come to know the deceased and the applicant during the time that they had lived together. She was aware of the fact that the deceased had moved out of the shared home prior to December 2002. The neighbour said that there was a malfunction with the alarm system in the house occupied by the applicant and the deceased. The malfunction caused the alarm to sound for one or two minutes when the applicant and/or the deceased came home. She said that she had seen one or other of them come home and then heard the alarm go off. She said that she was very familiar with the sound of the house alarm. She gave evidence that the alarm went off between 11 and 12 pm, 'probably closer to 12 pm' on either the Thursday or Friday night prior to her hearing about the death of the deceased. However there was evidence before the jury that the applicant had returned to his home on Friday 18 January 2002 at 11.15 pm in company with a woman friend and that the alarm had not gone off on that occasion.

26 The prosecution case was that the deceased was killed in the hours following her telephone call to Mr Morris on the evening of Thursday 17 January 2002.

27 Mr Morris gave evidence that on Saturday 19 January 2002 the applicant attended at his hairdressing salon at approximately 2 pm. The applicant was unshaven and quiet and said that he was tired. He made no mention of the deceased. Mr Morris made arrangements for the applicant to attend at Mr Morris's home for a bar-b-que that evening. As arranged, the applicant attended at Mr Morris's house at approximately 6 pm on the evening of Saturday 19 January 2002. Soon after the applicant arrived Mr Morris observed his (the applicant's) mobile phone to ring twice and he observed the applicant to answer the phone on each occasion. The applicant told Mr Morris that the first call was from one of the deceased's friends. He told Mr Morris that the friend had said that the deceased was 'supposed to have gone to a dinner party' and had not arrived. He said that the friend was worried about her. It will be recalled that Ms Rolland gave evidence that she rang the applicant and told him that the deceased had not attended the dinner which had been arranged for the previous evening and that she told him that she had reported her concerns to police. Telephone records show that Ms Rolland telephoned the applicant's mobile phone at 7.23 pm on Saturday 19 January 2002.

28 Mr Morris gave evidence that following the first telephone call the applicant continued eating until soon afterwards when a further telephone call was made to his mobile phone. Having answered that phone call the applicant told Mr Morris that the telephone call was from another of the deceased's friends.

29 One of those friends, Karen Lewis, gave evidence that she, having obtained the mobile telephone number of the applicant, phoned him at approximately 8 pm on the evening of Saturday 19 January 2002. She gave evidence that she spoke to him and said that the deceased could not be contacted. She asked the applicant if he knew the whereabouts of the deceased. The applicant told Ms Lewis that the deceased had gone away by herself for the weekend. He told Ms Lewis that the deceased had said that she was upset about their relationship and she needed some time to think about it. Ms Lewis told the applicant that the deceased's mobile phone was turned off and that it was completely out of character for the deceased to turn off her mobile phone. The applicant said that she should not worry about it as the deceased had told him that she was going to turn off her phone because she needed time to think. Ms Lewis said to the applicant that the deceased would never go away and never turn off her mobile phone without letting any of her friends know. Ms Lewis enquired of the applicant as to whether he knew the registration number of the deceased's new car. He said that he did not know the registration number. He asked her why she wanted the registration number. Ms Lewis told him a registration number was required because contact had been made with the police and the police needed a registration number. Telephone records reveal that Ms Lewis telephoned the applicant's mobile phone at 7.32 pm on Saturday 19 January 2002.

30 After these phone calls Mr Morris suggested to the applicant that he should stay at his house that night. He did that because he thought the applicant looked tired. The applicant left Mr Morris's home at approximately 9 pm. Apart from reference to the phone calls the applicant did not mention the deceased in the course of that evening.

31 The fire at the deceased's home took place approximately 3 hours later.

32 Mr Morris gave evidence that the applicant came to see him on the following Sunday 20 January 2002 and told him that the deceased had been 'burnt'. Mr Morris asked the applicant if the deceased was badly burnt, to which the applicant stated that she was dead. The applicant told Mr Morris that he had been told by police that her car was missing. The applicant expressed concern because he had driven the car, and he had washed it for the deceased, and accordingly, his fingerprints would be on the car. The applicant was asked by Mr Morris if he had the keys to the deceased's car. He answered 'Yes, they're in the boot of the Magna'. The applicant then asked Mr Morris where he thought someone might dump a car.**

**33 The brother of the applicant, Brenton Rye, gave evidence that he first learned of the deceased's death when the applicant telephoned him saying that he was in trouble. The applicant then came to his brother's house. He said 'She's dead'. His brother asked who was dead. The applicant said 'Sharon'. He said 'I'm in trouble, I'm fucked. She's dead, I killed her'. He said that he was 'pretty sure' that this conversation was between morning and lunchtime on either the 'Saturday or Sunday' before there was publicity surrounding the death of the deceased. Brenton Rye said that at the time he observed 'marks' on the back of one of the hands of the applicant. There was evidence before the jury that two phone calls had been made to the home telephone of Brenton Rye on the evening of Saturday 19 January 2002 from a public telephone box in Hawthorn Road, East Brighton. That telephone box was a very short distance from the home of Michael Morris. The first such call was at 5.59 pm and the second such call was at 7.42 pm. Each of the phone calls was of several minutes duration. The evidence of Mr Morris was that the applicant was visiting him at his house during the period of time that those phone calls were made.

34 The brother of the applicant gave further evidence that two weeks after that discussion the applicant again visited him and brought with him a stereo system and a video cassette recorder. The items were wrapped in plastic and appeared to be brand new. The applicant's brother sold them to a friend by the name of Kevin Meehan. There was evidence that on 17 January 2002 the deceased had purchased a Sony hi-fi system, model CMTCP100, and a Panasonic video cassette recorder, model NDFJ620A, from an electronics store in Ringwood. On 26 April 2004 police seized from Kevin Meehan a Sony stereo system which met the description of that sold to the deceased on 17 January 2002. Subsequently a Panasonic video cassette recorder which met the description of that sold to the deceased was recovered by police from a person to whom Meehan had sold it.

35 A member of the Arson Squad spoke to the applicant at 6.27 am on 20 January 2002. He observed that the applicant had cuts on his right hand.**

**36 On a voir dire Ms April Smith gave evidence that she is a senior scientist in the molecular biology laboratory at the Victorian Institute of Forensic Medicine. She has held that position since 1999. On 24 March 2004 Ms Smith was provided with a sample of extracted DNA from the applicant, a dried blood sample from the deceased and the pubic hair found in the deceased's vagina. She conducted mitochondrial DNA testing on both samples and on the pubic hair. Her conclusion was that the deceased was excluded as being the source of the hair. However, she was unable to exclude the applicant as being the source of the hair.

37 Ms Smith gave evidence that she had been trained in mitochondrial DNA analysis in 2000 and that subsequent to that she had undertaken 'about 20 to 40 mitochondrial cases'. The method used in both mitochondrial and nuclear DNA analysis is the same in that the object of the analysis is to look at differences, or variations between two different DNA samples. However, although the object of the analysis is the same, there is a difference between nuclear DNA and mitochondrial DNA.

38 Ms Smith gave evidence that in each cell there is a nucleus, the remainder of the cell being called the mitochondria. The nucleus contains two 'copies' of a person's nuclear DNA. One copy is inherited from the father, and the other copy is inherited from the mother of the person. Nuclear DNA is unique to an individual. Mitochondrial DNA is found in that area of the cell which is outside the nucleus, the mitochondria. There are up to 1000 mitochondrion in each cell and in each mitochondria there are several copies of mitochondrial DNA. Accordingly, mitochondrial DNA is thousands of times more abundant in any one cell than is nuclear DNA. Another difference between nuclear DNA and mitochondrial DNA is that the latter is inherited maternally. Mothers pass mitochondrial DNA on to all of their children. All men have the same mitochondrial DNA as their siblings, but they do not pass it on to their children. Only the mother passes it on. Accordingly, all siblings have the same mitochondrial DNA type, along with maternal cousins and maternal aunts.

39 The reason why mitochondrial DNA analysis is useful is that because each cell contains multiple copies of mitochondrial DNA, analysis of very old or degraded samples, such as bone, is possible. Likewise, analysis of samples that have an inherently low amount of DNA is possible.

40 However Ms Smith gave evidence that mitochondrial DNA analysis has limitations. Nuclear DNA testing involves analysis of nine DNA locations whereas mitochondrial DNA testing analysis involves only one location. Many more variations between individuals can be considered in nuclear DNA testing. This means that there is a restriction in the 'power of the statistics' which can be used to consider the results of the analysis. The mitochondrial DNA Ms Smith produced from the hair found in the deceased's vagina was not of a DNA type seen in the database used by her, which database relates to 257 individuals.

If we assume our figure of one in 257 is a true estimate of the frequency of this mitochondrial DNA type in the population, then we can say that it is 257 times more likely that we would get these results if the accused was definitely the source of the evidence versus if a random unrelated person was definitely the source of the evidence, that is all.

**42 She gave evidence that the conclusions she could draw were that the deceased was excluded as being the source of the DNA. The applicant could not be excluded as being the source of the DNA, he being included in the population of people who have the same type of mitochondrial DNA. She said that this evidence did not identify the applicant as being the source of the evidence.

43 Counsel for the applicant submitted to the trial judge that the evidence of Ms Smith as to her analysis of the hair should not be admitted into evidence. First he submitted that the evidence was of no probative value. He submitted that without a quantifiable statistical analysis of the frequency of the particular mitochondrial DNA pattern, the jury would be led to speculate about such frequency.

44 The trial judge ruled that the evidence was admissible. Subsequent to the ruling, counsel for the applicant submitted that in giving the evidence referred to in [41] above, Ms Smith had fallen into the well known 'prosecutor's fallacy'. In particular he submitted that the evidence proceeded on an assumption that the Victorian database of 257 individuals represented the true frequency of mitochondrial DNA in the population. He argued that there was no scientific evidence before the jury of the way in which the database had been 'put together' and that there was no evidence of the 'frequency of mitochondrial types in the population'. No specific ruling was made on this matter at that time. However, prior to giving her evidence in the trial Ms Smith was recalled to give evidence on a further voir dire. She was recalled for the purpose of explaining further the statistical relevance of the comparison between the mitochondrial DNA analysis of the DNA sample extracted from the applicant, and the DNA sample extracted from the hair in the context of the database of 257 individuals. She said that all databases used for DNA testing make the assumption of representing the true population. Whether the DNA testing is nuclear or mitochondrial makes no difference. Any DNA testing requires conversion into 'a likelihood, or frequency' estimate. She said evidence about DNA testing uses databases to give the Court an estimate of frequency. She said that a larger database would not make the estimate more accurate. (In the earlier voir dire she had pointed out that the standard database used by her laboratory for nuclear DNA consists of 100 individuals). She said that mitochondrial DNA would 'intuitively be more common in a population than a nuclear DNA type because mitochondrial DNA is the source with family members, maternal family members.'

45 The trial judge held that the witness could not give the evidence referred to in [41] above. His reason for doing so was that in giving her evidence on the voir dire Ms Smith had not been able to specify precisely the origin of the population base, which forms the database of 257 people.

46 Subsequently Ms Smith gave her evidence in accordance with her evidence on the voir dire, but in compliance with his Honour's ruling, she did not express any opinion as to the likelihood of the DNA material extracted from the hair being that of the applicant. Her conclusions were that the mitochondrial DNA analysis did not exclude the applicant as being the source of the mitochondrial DNA material, but that the analysis did not identify the applicant as being the source of the DNA material, he being included in the population of people who have the same mitochondrial DNA.**

47 The single ground of appeal is that his Honour should not have admitted the evidence that mitochondrial DNA analysis of the pubic hair could not exclude the applicant as being the source. It is submitted that it had no, or virtually no probative value and was irrelevant. In my view, there is force in this argument. In circumstances where no statistical analysis was put before the jury they were unable to gauge the probative value of the DNA evidence. As stated by Callaway JA in R v Noll:[1]

It is the statistical step in the reasoning that gives DNA evidence its probative value.

**48 In this case Ms Smith gave evidence that the mitochondrial DNA found in both the sample of DNA obtained from the applicant and in the pubic hair was different from any mitochondrial DNA sample in the database of 257 persons. However, there was no evidence before the jury as to what this means in terms of the frequency with which any matching DNA characteristics are likely to be found in the general population.

49 Clearly the evidence of DNA analysis is helpful to a jury in only one of two circumstances. The first of those is, that it is obviously highly relevant if the analysis excludes a person from having been a contributor to the DNA in question, just as the deceased was excluded as being the source of the DNA of the pubic hair in this case. The second circumstance is when the DNA analysis does not exclude a particular person as being a contributor to the DNA material in question. The question then to be determined is, 'What statistical probability is there, based upon valid and appropriate statistical databases, that persons other than the contributor may have contributed to the DNA?' The answer to this question may reveal that the DNA evidence is highly probative or it may reveal that the evidence is limited indeed. However in the case before us, the evidence before the jury provided them with no assistance at all as to matters of likelihood and thus lacked any real probative value.

50 However, the fact that evidence which has minimal, if any, probative value has been permitted to be put before a jury does not, by itself, mean that the trial has been unfair, or that there has been a miscarriage of justice. The question which must be considered is whether the evidence had any prejudicial impact or could have led to impermissible reasoning on the part of the jury.

51 The evidence given by Ms Smith was clear and unambiguous. It was not misleading or confusing. The difference between the analysis of nuclear DNA and mitochondrial DNA was explained clearly by her. She made it clear that her evidence did no more than not exclude the applicant as being a source of the DNA material, and that the evidence did not identify him as being the source of it. Indeed, the PowerPoint display she used to assist the jury, a copy of which was marked as an exhibit before them, contained as its last line the sentence: 'This does not identify the accused as being the source of the evidence'.

52 The evidence in chief sets out in clear detail the fact that mitochondrial DNA differs from nuclear DNA in that mitochondrial DNA is passed by mothers to their children and that a considerable number of people who are in the same maternal genetic line may have the same DNA mitochondrial type.

53 In the course of cross-examination, Ms Smith agreed that nuclear DNA is referred to as a 'unique identifier', whereas mitochondrial DNA is not a unique identifier. She agreed that if one was to have a maternal lineage back 'perhaps as far as 10 or 11 generations' the mitochondrial DNA would be the same, assuming it could be tested in such circumstances. She agreed that the frequency of mitochondrial DNA sequences varies within the population and that some such DNA sequences would be more common than others.

54 In the course of his charge his Honour reminded the jury of the evidence of Ms Smith and stated: 'She emphasised that the analysis did not warrant the conclusion that (the applicant) had been identified as the source of the hair.'

55 Furthermore the trial judge, in referring to the evidence of Ms Smith, said: 'It is still important to bear in mind the limitations of mitochondrial DNA compared with nuclear DNA. The hair was not identified as belonging (to the applicant) and you should not, as was pointed out by both counsel, treat it that way.'

56 Accordingly, there is simply no basis upon which the jury could be under any doubt that the DNA evidence could not be used as evidence that the hair was that of the applicant. In all the circumstances there is no basis upon which it can be said that there was a risk that the evidence could be misused by the jury in some unfair manner. The evidence, and the way in which it was treated by counsel and the trial judge, was all one way; that is that the hair could not be identified as belonging to the applicant. For the jury to have treated the evidence as meaning anything else would have required them to have ignored impermissibly the evidence of Ms Smith and the clear directions of the judge. There is no reason to suggest that the jury might have done so. It must be observed that there is no ground of appeal before us other than that the evidence in question should not have been admitted before the jury. No complaint is made about the judge's charge. There is no suggestion that the**

judge did not refer to all relevant issues before the jury or that his directions as to the burden and standard of proof, or to any other matter were deficient. There is nothing to suggest that the admission of the evidence had any capacity to be used in any manner other than that directed by the judge. The evidence in question falls into insignificance when considered in the context of the whole of the evidence before the jury. The case before them was a strong circumstantial case, and was supported by evidence of a credible confession made by the applicant to his brother. There is no basis in all the circumstances of this case to conclude that there was any realistic risk that the jury, contrary to the evidence of Ms Smith, and of the directions of the judge in regard to such evidence, used the DNA evidence as evidence that the applicant was the source of the hair.

**57 The highest point that the evidence could possibly reach was that as part of a circumstantial case the applicant could not be excluded as being the source of the DNA material. Furthermore, that evidence was admitted in the context of the admission of the evidence of the finding of the hair in the vagina of the deceased, and of the evidence that mitochondrial DNA analysis excluded the deceased as being the source of the hair. That evidence was properly before the jury as was conceded by counsel for the applicant upon the hearing of the appeal. In such circumstances, and although the evidence that the applicant could not be excluded as being the source of the hair was not of probative weight, it formed part of the evidentiary matrix. In my view the admission of the evidence, in all the circumstances, was not capable of producing a source of injustice.

58 The application for leave to appeal against conviction should be refused.

[1] [1999] VSCA 164; [1999] 3 VR 704, 708-9.