Regina v Wakefield

Court of Criminal Appeal (NSW)|2004-08-13|Before: Hodgson JA, Hulme J, Smart AJ, Mr J, Hodgson J

CITATION : Regina v Wakefield [2004] NSWCCA 288 HEARING DATE(S) : 13 August 2004 JUDGMENT DATE : 20 August 2004

JUDGMENT OF : Hodgson JA at 1; Hulme J at 2; Smart AJ at 6 DECISION : Appeal against conviction dismissed

CATCHWORDS : Identification case - appreciation and application of DNA and directions - case fought on risk of contamination of DNA and no other issue for sound forensic reasons - Point not raised at trial - Rule 4 applied - no substance in appeal. LEGISLATION CITED : Nil CASES CITED : R v Doheny & Adams [1997] 1 Cr App R 369 R v Keir 127 A Crim R 195 PARTIES : Regina v Leslie John Wakefield FILE NUMBER(S) : CCA 60207/04 COUNSEL : (A) G Bashir (C) P Barrett SOLICITORS : (A) S O'Connor (C) S Kavanagh

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0157 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60207/04

HODGSON J HULME J SMART AJ

HODGSON J: I agree with Smart AJ that the appeal should be dismissed, substantially for the reasons given by him and Hulme J.

HULME J: As the reasons of Smart AJ demonstrate, throughout the trial in this matter reference to DNA evidence was commonly made without precision and at times in the erroneous manner encompassed by the description "the Prosecutors Fallacy". The errors commenced as early as the Crown Prosecutor's opening. No objection was taken to this.

The counsel who appeared for the Appellant at trial was experienced. It is apparent he chose to contest the case not upon any basis to which those errors were relevant but rather on grounds which had more prospects of success. That is a proper method of advocacy - indeed some would say preferable to complicating a trial by additional issues considered unlikely to succeed.

With more than generous attention to the detail of the trial, Smart AJ has demonstrated that the case is one where leave under rule 4 of the Criminal Appeal Rules to raise these erroneous references to the DNA evidence should be refused.

I agree with the order proposed and with his Honour's Reasons.

SMART AJ: Leslie John Wakefield appeals against his conviction of aggravated robbery, the circumstance of aggravation being the infliction of actual bodily harm upon the complainant. He does not seek leave to appeal against his sentence. It was not in issue at the trial that the complainant, an elderly lady, had been robbed and that the robber had inflicted actual bodily harm upon her in the course of a serious assault. The sole issue in the trial was whether the appellant was the man who robbed and assaulted her.

The Crown case On 26 July 2001 the complainant parked her car in a car park at the Warringah Mall. As she walked along a corridor to the public lifts her attacker came towards her and told her that the public lift was not working and that they would have to take the service lift. She followed him to that lift which they entered. He was doing something with the lift buttons and she was standing behind him. He turned to her and said words to the effect "You are going to give me your bag", being a reference to her handbag, the shoulder strap of which she had wrapped around her wrist.

She replied, "No" The attacker struck her, probably with a closed fist, a hard blow to her face. He struck her two further hard blows to her face, grabbed her bag and took off. She was left in a very distressed condition in the lift. One of the blows had fractured her nose and she was bleeding profusely. Her dentures had also been broken. Her face was bruised, her prescription sunglasses, which she had been wearing, were knocked off. A pair of secateurs in a pouch and a handkerchief were found in the lift. The complainant noticed them on the floor of the lift. The Crown contended that these had been dropped by the attacker. There was some blood spattered in the lift.

The complainant, very shortly after the incident, gave Mr D Randall, the cleaning supervisor who attended to her, a description of the offender and a little later gave it to Mr J Gupwell, a security guard on duty who went to the lift (lift number 11 on level 1) in response to a call from Mr Randall. He completed an incident report and fixed the time of the incident as approximately 11am.

The complaint described the offender as muscular, thickset and with short dark wavy hair. He had a brown complexion and did not have facial hair. He was wearing a navy waterproof jacket with long sleeves and dark trousers (not jeans) and a pair of worn white sneakers. He was carrying a small sports bag about one foot in length. She could not be sure of the colour. She was shown a pair of sneakers and a small bag. She said that they could have been those of the offender but she was not sure. She was able to identify her bag and her purse which were seized by the offender.

The complainant lost her handbag with her purse containing some money and her personal effects such as her credit cards. She needed and received medical and dental treatment.

The offender worked at the nearby TAFE College as a trainee gardener. A little later that day the police attended at the college and interviewed him and others who worked there.

On 30 July 2001 the complainant went to the police station for the purposes of an identification parade. She was taken aback by the manner in which it was conducted. She expected to be behind glass and separated from those in the parade. Instead she was required to go into a room with all the men in the parade, including the appellant, standing there. She said that she recognized the appellant. She said that she was really frightened that she would be hit again. That was why she did not tell Inspector Moss that she recognized the offender and that the appellant was the offender. She told him that she could not be sure. This was not the truth. The complainant said that the offender looked different on the day of the identification parade from the day on which he robbed her. On the identification parade the offender's hair was not wet but it was wet on 26 July 2001. It had been raining heavily that day. He was dressed in different clothes on each of 26 and 30 July 2000.

After the parade had concluded, and outside the room, she spoke to Sgt Pickering and told him much of what she said in her evidence.

During her cross-examination the complainant estimated that she arrived at the Mall about 11am. She did not look closely at the man who later assaulted her at first. She only saw her assailant face on for a few seconds. In her first statement to police she did not say her assailant's hair was wet, or that there were items on the lift floor. When she spoke to Sgt Pickering after the identification parade she only told him she thought the man who assaulted her was number 8 (ie, the appellant), It was only after she had been told the DNA results that she made a statement saying she knew it was number 8 (in the lineout) who had attacked her. On a previous occasion she had said the reason she did not pick the appellant in the parade was because he looked very different.

Mr J Gupwell said that to him the complainant described her assailant as being mid-twenties to mid-thirties, solid build, short black wavy hair, European background, wearing a blue jacket, blue pants and white runners and carrying a blue sports bag.

Mr Randall said that the complainant told him that her assailant was in his mid-twenties to mid-thirties and mentioned a blue sports bag. Mr Randall stated that it was only after he and Jeffrey Gupwell took the complainant to a room near the lift and he went back to the lift to find people using it that he picked up what was on the floor of the lift.

Mr Randall put the secateurs, the pouch and the handkerchief in a plastic bag and took it to the receptionist at the Mall Management Centre. A few minutes later, on receiving instructions he retrieved the bag and gave it to two police officers. It was eventually delivered to the Exhibits officer at the police station. Mr Randall cleaned the service lift, removing the blood on the instructions of Mr Gupwell. In the incident report he wrote later that day he mentioned finding the garden shears but not the handkerchief. The first time he mentioned a patterned bandana was in his statement of 22 August 2001

The defence attached great importance to the absence of blood on the clothing and shoes of the appellant. Det Sgt Callister, an expert in bloodstain pattern interpretation, stated that blood splatter is unlikely to travel backwards towards the assailant. The blood spatter seen on the wall of the lift could be from either the complainant being struck and starting to bleed and that blood being dislodged, or from her aspirating blood.

Dr John Duflou, forensic pathologist, who was called in the defence case, thought it probable that the assailant would have on him both transfer blood (from his hand coming into contact with the blood flowing from the complainant's nose) when delivering the second and third punches, and impact blood from the spray of blood after the complainant's nose was hit. It was also possible that the assailant could have stepped in the pooled blood or had blood drip on to his shoes. In cross-examination Dr Duflou stated that the longer between blows the more likely there was time for blood to pool and be splattered. The quicker the blows the less likely this was.

Mr W Reeve, the Acting Operations Manager for Northern Beaches TAFE said that the appellant was a trainee gardener there, usually starting at 8.30am. On 26 July 2001 about 10.45am he went to the gardener's shed near F block and spoke with the head gardener, Craig Blake. He then went to his car parked nearby. He saw the appellant walking up the hill towards the shed. It would have been about five or seven minutes to 11am. The appellant was wearing dark blue trousers and a patterned shirt and was carrying a blue sports bag, although he only remembered the bag that morning. It was raining lightly. He was out of breath from coming up the hill, otherwise he seemed normal. The appellant told Mr Reeve that hw was just arriving at work and that he'd been to the doctor's.

Mr Reeve said that he asked Mr Blake, the gardener at the College, in consultation with the appellant, to draw up a list of tools required by the appellant. Mr Reeve approved the list brought to him and the items were purchased. Mr Reeve agreed that the work assigned to the appellant did not require him to do any pruning. There was some feeling between Blake and the appellant. Blake thought that he should have direct control over the appellant. The appellant and Blake worked in separate areas. Both men were under the control of Mr Reeve.

Craig Blake said that he first saw the appellant about 10.45am in the gardener's shed changing into his uniform. On 26 June 2001 he had purchased a number of tools for the appellant, including secateurs and a leather pouch for them. The secateurs were a Sandvik brand, orange in colour and very common. (The same brand and type of secateurs was found in the lift in the Mall). The appellant usually brought a dark blue overnight bag to work. On 26 November 2002 while working on foliage near F Block (the building closest to the gardener's shed) Blake found a handbag and purse. These were identified by the complainant as hers. In cross-examination he denied there was friction between him and the appellant.

However, Mr K F Keller, the College Director in charge of Northern Beaches TAFE at Brookvale said that at the time he was experiencing difficulty with Mr Blake, whose work performance was poor and that he decided to try and keep Mr Blake separated from the duties to be undertaken by the appellant. They were allocated different work areas. Mr Keller passed the appellant's work area several times per day. Almost daily he saw the appellant working in his area. He never saw him required to use, or using a pair of secateurs. He used other items. The photographs of the appellant's work area do not suggest that there would be a need to use secateurs.

The appellant's locker in the garden shed was searched. It contained a pair of New Balance running shoes and a blue Scenic Tours bag containing items of clothing and a handkerchief The bag was lent to the appellant by his sponsor, Gregory Clarke, at whose home the appellant was living. The items seized from the appellant's locker in the garden shed were taken back to the police station and entered in the Exhibits Book. While this was in progress Snr Constable Pieper (nee Jaric) entered and handed over the plastic bag with the items stated to have been found in the lift. They were entered in the Exhibits Book first and either put into individual field exhibit bags or one field exhibit bag, but were not put in with anything found in the gardener's shed.

Sally Rickus gave evidence that at 7am on 26 July 2001 she was playing the poker machines at the Broadway Hotel on Parramatta Road when she saw the appellant also playing the poker machines. He was wearing a dark casual waist-length zippered coat, dark track type pants and runners and was carrying a dark work bag. When it was towards 10am she told him he would be late for work. She did not see him leave. About a week later she wrote a letter for the appellant after he told her he had been in trouble over a robbery in which she noted the time she thought he had left, being around 10.15am. While the appellant mentioned 10.15am it appears she thought that that was correct.

John Heap, a state Transit customer service co-ordinator, stated that an L90 bus from Central Station to Warringah Mall was scheduled to leave Central at 9.55 and 10.25am and to arrive at 10.38am and 11.08 respectively.

Det Snr Cons S Jones, the officer in charge of the investigation spoke to the appellant and Craig Blake around 12.50pm at the TAFE gardener's shed. The appellant told him that he started work about 7.30am , that he had been in the shed all day and had not been in the Mall that day. The appellant stated that he did no have any secateurs, that he caught a bus to work and that he did not carry a bag on the bus. On being asked whether he would be prepared to go into a line up for identification parade purposes the appellant agreed, as did Mr Blake.

At 4.35pm that day Det Jones executed a search warrant and seized items from the personal locker of the appellant.

About 5.30pm on 27 July 2001 the appellant, at the request of the police, attended at Dee Why Police Station. He was arrested and after being cautioned, interviewed. That was electronically recorded. During that interview the appellant confirmed that he had started work that day at 7.30am, that he had been on the College campus all day in the shed, that he had not been to the Mall and that he did not have any secateurs.

The appellant told the police that he left the home at Milperra at which he was staying about 6.15am and arrived at Central about 7am. He went to a methadone clinic near Central about 7.05am. He was there about 15 minutes. By the time he came out he had missed the bus to Warringah Mall. He went with two acquaintances to an hotel/club on the corner of Regent Street and Parramatta Road. He stayed there for some hours. The barman told him to go to work as he was late. He caught a bus to the Warringah Mall about 10.30am from Central. On arrival he walked to the TAFE College and through the grounds. As he neared the shed he met Mr Reeve, who walked up to the shed with him, where he changed into his work clothes. Mr Reeve talked to him for about 20 minutes before he left. About 15-20 minutes elapsed before Craig Blake arrived. The appellant remained in the shed. Craig Blake had a lengthy whinge. The appellant denied that he had robbed and assaulted the complainant.

At a further recorded interview on 27 February 2002, Det Jones reminded the appellant that a handkerchief had been found in the lift in which the complainant was attacked, and that that handkerchief had been taken away for DNA testing. The appellant said he used handkerchiefs all the time. Det Jones then made a substantial leap. Question and Answer 57 read: "Q. You've just told me that you don't know how your handkerchief came to be there [in the lift]. A. Yeah"
The appellant denied that he was responsible for the assault and robbery of the complainant. He confirmed that he had told Det Jones that he (the appellant) had never entered the mall. The appellant told the police of friction between him and Craig Blake and that Blake was apprehensive that he was going to lose his job. The appellant insisted that he was with Wayne Reeve at the time of the robbery. He also referred to the letter written by Ms S Rickus as to when he left the Broadway Hotel/club and that she was able to verify his presence there until about 10-10.15am.

DNA evidence Rosamond Sayer, a forensic biologist, agreed in response to a leading question from the prosecutor that DNA serves as a genetic fingerprint as each individual's DNA is unique. She analysed the reference baccal swab taken from the appellant and prepared a DNA profile from it. She passed the results of the analysed sample to Mr R Goetz.

Ms Sayer agreed that one of the greatest fears occurring throughout the process of analysing the DNA and its classification was that of contamination. Masks have to be worn to prevent the scientist's breath going onto the samples. Gloves and a gown are worn and the hair is tied back. Ms Sayer was taken through each of the steps or precautions taken in the analysis and classification designed to ensure that there was no contamination. She was also taken to the possibilities of contamination by objects or items touching each other and mixtures of DNA of two or three people on the same item or object. In the case of items or objects much depends on how they are put in exhibits bags or other containers.

Mr R J Goetz, a forensic biologist, said that DNA testing was carried out on the handle of the secateurs, the leather pouch and the handkerchief and baccal samples purporting to come from the complainant and the appellant. The DNA profile from the handkerchief was a mixture originating from at least three individuals. The major DNA component of the mixture was consistent with originating from only one individual and had the same DNA profile (in the profiler plus system) as the appellant. That profile is expected to occur in fewer than one in ten billion persons. One of the contributors to the minor DNA component could be the complainant.

Mr Goetz said, "I would prefer the term genetic profile rather than fingerprint. I think fingerprint has got a connotation of uniqueness and we're not talking about uniqueness here, so I prefer the word genetic profile." Ms Sayer handed him a number of sheets containing the genetic profile of the appellant. This passage appears in Mr Goetz' evidence: "Q. So, in other words, while not being strictly unique, is it true that the change ( sic) of another profile turning up the same as Mr Wakefield's, the odds are one in ten billion? A. Not exactly but it's a pretty rare profile, in fact every profile received in the laboratory is rare. Every profile is found probably fewer than one in a hundred million people in the population because of a number of different areas of the DNA we target, it decreases that someone else in the population has the same DNA profile.

DNA testing on the handle of the secateurs and the pouch was unsuccessful. No blood was detected on the raincoat and a pair of running shoes.

The Appellant's Case The appellant contended that he was not responsible for the robbery of the complainant and only lied to the police due to panic. He had been misidentified by the complainant when he voluntarily took part in an identification parade. No blood was found on the appellant's clothes; there would have been if he had been the assailant. There was a significant amount of blood in the lift and it was splattered around. The crime scene was contaminated in so far as the service lift continued in service after the offence and was cleaned before it could be secured. The handkerchief, both before being taken to the police station and when being entered as an exhibit at the police station, was susceptible to DNA contamination from other items belonging to the appellant and the Crown could not establish that the handkerchief had not been contaminated with the appellant's DNA. If the appellant was the offender and had hidden the jacket before turning up at work as the Crown contended, he would not have left the offending bag where it was found. Due to the time frame of the incident the appellant did not have the opportunity to commit the robbery. He was at the Broadway Hotel and then Mr Reeve saw him at the campus. He was there when the robbery took place at 11am. The secateurs and the pouch were common items and the jury should not accept the evidence of Mr Blake

The appellant did not give evidence and relied on the version of events given in his recorded interviews and the evidence of three witnesses whom he called. I have earlier referred to the evidence of Mr Keller and Dr Duflou.

Dr B L McDonald, a well qualified expert in molecular genetics (DNA testing), said that for the most part he agreed with the conclusions of Mr Goetz. Dr McDonald agreed that the DNA testing of the handkerchief did not exclude the profile of the appellant.

Dr McDonald's evidence was a little discursive in parts and it is not necessary to refer to these parts. He expressed the opinion that the types of figures quoted, for example, one in so many billion, were theoretical. It was a mistake to place too much reliance on the statistical approach and when a large number of test results are reviewed there are many profile matches which the statistical approach does not reveal. A recent analysis of all the Australian data bases revealed that there were matches between unrelated people that occurred more frequently than a statistical approach would predict. He continued, "So the one in ten billion is a figure which makes assumptions which cannot be met. The figure is still going to be a big number". His studies suggested a figure of one in 600,000 for unrelated people. This evidence was given in answer to the appellant's trial counsel: "Q. The DNA evidence on the hanky, item 4 … identifying John Wakefield as one of several contributors is strong? A. Yes. … Q. Does the evidence identify when or how that DNA became deposited on the hanky? A. No, it doesn't. Which is one of the major problems with DNA evidence is that the DNA may have been on that hanky for a very, very long time and it may have been there for a very short time. It may have got there with direct contact with, you know in this case for the purposes of the discussion, Mr Wakefield or in fact Mr Wakefield may have never ever seen to touched that hanky (sic) but DNA of his which has been transferred onto something else can then get transferred onto the hanky.

Q. How easy is that to occur? A. It's very easy. " 43. Two comments should be made at this stage. First, in cross-examination counsel for the appellant did not suggest that the frequency of a DNA profile in the community matching that of the appellant was other than very rare, that is, other than a big number. Secondly, counsel for the appellant led evidence to that effect. Trial counsel focussed his attention as to the DNA evidence on the risk of contamination. On that issue he had some ammunition. He had none on the frequency of the recurrence of a DNA profile matching that of the appellant. The approach of trial counsel shows a keen grasp of reality and an astute attempt to maintain credibility with the jury.

An exhibit which is to be subjected to DNA testing must be handled with care. It should not come into contact with other objects and must be handled with gloves at all times. Once DNA is extracted in the laboratory it is highly transferable. Dr McDonald stated, ",,, DNA can readily transfer from item to item and as a consequence of that it is necessary that all items from which DNA evidence is to be adduced are kept separate from any other item. Thus, an item from which it is hoped to obtain DNA evidence is never placed on the same table as other items because of the risk of contamination.

The Crown's Contentions on Identification The Crown relied upon the following circumstances to prove that it was the appellant who had robbed Mrs Bateson: (i) The complainant's evidence that the appellant resembled her attacker "I think it was number eight, he's got his hair differently"

(ii) The appellant matched the physical description of the attacker given by the complainant immediately after the crime (This is subject to the estimate of age. She estimated mid-twenties to mid-thirties whereas he was aged 43 at the time of the offence.)

(iii) The appellant was in possession of clothing matching the description of that given by the complainant as having been worn by the attacker, being a dark coloured jacket (there being evidence that he had been wearing one earlier that day), a pair of dark coloured trousers and a worn pair of sandshoes.

(iv) Earlier that day the appellant had been carrying a dark coloured bag, an item that the complainant said her attacker had carried.

(v) The attacker had left items at the scene of the crime, namely secateurs and a pouch, both items being of the same make and type as those bought for the appellant.

(vi) Also with these two items was a blue check coloured handkerchief "on which the DNA of the accused was found, the odds being that this accused was the only person in 10 billion, that is 10,000 million to bear that DNA."

(vii) The proceeds of the robbery, namely, the handbag and the purse, were found, albeit four months later, on the premises where the appellant was employed as a gardener.

(viii) The appellant had the opportunity to commit the offences

(ix) The appellant told four lies to the police, that is that he had arrived at work at 7.30am, that he had been there all day; "we've been in the shed", that he did not have any secateurs and that he did not carry a bag on the bus. 46. While the Crown relied on the combination of these circumstances, the handkerchief found at the crime scene allegedly containing DNA matching the profile of that in the swab taken from the appellant was of major importance. In his closing address the prosecutor relied on the DNA evidence as being positive proof of the appellant's commission of the crime.

The sole ground of appeal reads: The presentation of the DNA evidence at trial was misleading and erroneous and the directions of the learned trial judge were inadequate and failed to correct the errors, resulting in a substantial miscarriage of justice.
The appellant contended that the erroneous presentation of the DNA commenced with the prosecutor's opening address when he said: "Now DNA, you will hear expert evidence from a scientist, will tell you is literally one of the submicroscopic building blocks of life. It is one of the chemical components. It is like a fingerprint. It is so individual that the odds are that this accused was the only one person in ten billion, that is ten thousand million other beings to bear that DNA fingerprint."
The use of the words "fingerprint" and "DNA fingerprint" was inaccurate. Evidence of DNA profile is not like a fingerprint.

The appellant pointed out that when Ms R Sayer was giving her evidence in chief the inaccuracy continued, reliance being placed on these questions: "Q. As far as forensic medicine is concerned, DNA serves as a genetic fingerprint, is that true? A. That's true. (T232)

Q. Those skin cells, as you have already told us, contain a person's DNA? A. Yes

Q. Their genetic signature A. Yes

Q. That provides you with a base sample to establish what the DNA signature of the particular person is ready to be compared with any other sample that you're given? A. Yes, we call that a reference sample. (T233)

Q. So is it the case that when you talk about a segment of DNA are you saying that there is a recurring pattern of chemicals … that gives that unique signature feature? A. Yes … the certain patterns that they appear in in each individual is different for each individual … Q. It's unique is it? A. It is unique" (T234) 51. It was submitted that this was misleading as a DNA profile does not have the same qualities as a fingerprint. A fingerprint is unique in every person, excluding identical twins. DNA profiles are not. When explaining DNA profiles the analogy of a fingerprint is not apt and should not be used.

As previously mentioned, Mr Goetz preferred the phrase when speaking of DNA of genetic profile rather than fingerprint, the latter having a connotation of uniqueness. He also did not accept that the chance "of another profile turning up the same as the appellant's profile was one in ten billion". He did accept that the appellant's profile was "a pretty rare profile". He added an important explanation, "Every profile is found probably in fewer than one in a hundred million people in the population because of the number of different areas of the DNA profile we target."

The appellant submitted that the upshot of the scientific evidence and the misunderstanding of it by the prosecutor (and possibly defence counsel) led to the jury being left with an erroneous appreciation of the DNA evidence. It was further submitted that the jury "were left with the impression that the appellant's DNA, rather than DNA the major component of which the profile was consistent with the appellant's DNA profile, thereby not excluding him as a contributor, was said to have been found on the handkerchief.

In his closing address the prosecutor said: "What about the DNA sample that was found on the handkerchief. If that wasn't his handkerchief - leave that answer to one side for a moment - how unlucky can he be that his DNA found its way onto someone else's handkerchief." (T321) "another explanation for the accused's DNA being on the handkerchief was that he - the accused - put it there." (T321)

"… So what do you really think the probability is that a little piece of the accused's DNA floated around, somewhere in the exhibit room perhaps and landed on this handkerchief … The obvious answer is, his DNA was there because he used that handkerchief and dropped it there in the lift along with the secateurs and the leather pouch." (T322)

"…Either it was his handkerchief or he'd used it and dropped it … That's how the DNA got there …" (T325) 55. In his summing-up the judge repeated the Crown's contentions; for example, that on the handkerchief the major DNA contributor was found to be DNA from the accused (SU11 and SU25).

The judge referred to Ms Sayer's evidence of DNA being a genetic fingerprint without explanation or qualification. He summarised Mr Goetz' evidence thus: "He said that the DNA from this handkerchief was a mixture from three individuals, the major component of which came from the accused. He said, as I understood his evidence, that statistically there is only a chance of there being 2 people with that DNA in fewer than one in ten billion people, that's … in 1000 million."
Mr Goetz put the matter a little differently.

It was submitted that this summary of the Crown's contentions elevated the status of the evidence from a DNA profile consistent with the DNA profile of the appellant to one suggesting that the DNA of the appellant was that found on the handkerchief, that in a case turning on the issue of identity this was a substantial misdirection and that this error pervaded the whole of the trial.

The appellant pointed out that there was no direction to the jury as to how they could use the evidence of the DNA profile. There was no complaint by the Crown or the appellant as to the summing-up. Leave was required under r 4 to raise the ground of appeal.

In R v Doheny & Adams [1997] 1 Cr App R 369 the English Court of Appeal gave detailed consideration to the use of DNA evidence and at 372-373 exposed what it described as "The Prosecutor's Fallacy:" in these terms:

"It is easy, if one eschews rigorous analysis, to draw the following conclusion 1. Only one person in a million will have a DNA profile which matches that of the crime stain

The defendant has a profile which matches the crime stain

Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime. … Taking our example the prosecutor's fallacy can be simply demonstrated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the Defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt.

The result is that, provided here is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio deduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative."

This exposition has been followed in this State: Keir (2002) 127 A Crim R 198 at 202-203. In Keir at [23] the Court, following Doheny & Adams, held that the statistical probability within the relevant population does not translate to the same statistical probability for a given member of the population. Put another way, the statistical probability of the profile occurring within the general population is not the same as the statistical probability of the appellant's DNA occurring at the crime scene. The appellant contended that this was not made clear in the summing-up.

The appellant complained, "there was no direction that evidence that a person's DNA profile is not excluded as a profile of the DNA found on an object at a crime scene does not equate to evidence that the person's DNA was found at the crime scene." It was also submitted that evidence that a person's DNA profile has the same DNA profile as that on an object found at the crime scene is not evidence that the person's DNA was found at the crime scene.

The appellant submitted that this case required the judge to instruct the jury not to engage in impermissible reasoning. Identity was the issue and there had been misleading evidence placed before the jury and misleading reasoning in the form of questions and answers from both parties. The DNA evidence was given an exactitude which it simply did not possess. The appellant submitted that the jury must have been misled as to the state of the evidence as it related to the handkerchief by the statements throughout the trial, repeated in the summing-up, that it was the DNA of the appellant that was found on the handkerchief. Thus, it was submitted, the jury were not in a position to properly assess the weight of the DNA evidence in the trial.

The appellant's contentions do not sufficiently take into account a number of factors. The experienced counsel who appeared for the appellant at the trial fought the Crown case on the basis that the Crown could not exclude contamination of the DNA material on the handkerchief, that is, the material could have got there by reason of the handkerchief coming into contact with objects having the appellant's DNA on them. This could have happened in the lift, when the handkerchief was placed in the plastic bag by Mr Randall and remained there, or in the police Station while the exhibits were being sorted and placed in Exhibits bags.

Counsel for the appellant at the trial must have thought (and justifiably so) that there was little point in insisting on what the cases say is the correct approach to the DNA evidence. In the present case there was some telescoping with the evidence, or what might be described as "short cuts". The rarity of the DNA profile of the accused led to this. It would be sound forensically to take the view that with the rarity of the appellant's profile, a matching profile being found on the handkerchief and the appellant's presence in the area and the other circumstances a jury would inevitably draw the conclusion that the appellant was the robber. In practical terms in the present case the approach propounded by the appellant's counsel, which is strictly correct, would have made no difference. The result was inevitable.

Counsel for the appellant at the trial fought the Crown case on the only sensible basis which was available. By doing so neither he nor his client lost any credibility.

As foreshadowed in Doheny & Adams as the art of analysis of DNA progresses DNA evidence is likely to become more significant. The experience in New South Wales is that the art of analysis has developed and that includes statistical development. The Courts are repeatedly seeing cases where DNA profiles are taken which are rare. Mr Goetz' evidence quoted earlier emphasises this point. Nevertheless, as the art of analysis is developing, precision and accuracy of expression as to DNA profiles are highly desirable. The task of the judge in this case was made more difficult by not having a daily transcript. Some of the distinctions are quite fine.

As a matter of substance the appeal must fail. Leave to raise the ground of appeal relied upon should be refused. Once an examination of the transcript is undertaken the lack of substance in the ground of appeal taken becomes apparent.

I propose that the appeal against conviction be dismissed.

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Judgment (88 paragraphs)

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