Aytugrul v The Queen

[2011] HCATrans 329

[2011] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S315 of 2011

B e t w e e n -

YUSUF AYTUGRUL

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 DECEMBER 2011, AT 10.01 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant with my learned friend, MS K.J. EDWARDS.  (instructed by Legal Aid Commission of NSW)

MR D.U. ARNOTT, SC:   May it please the Court, I appear with MS .V.J. LYDIARD for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours have the outline? 

FRENCH CJ:   Yes, thank you.

MR ODGERS:   I just wanted to make sure.  If I could begin?

FRENCH CJ:   Yes, go ahead.

MR ODGERS:   Thank you.  Your Honours, this appeal raises the general issue of the scope of the operation of section 137 particularly; perhaps also 135, although that will be a provision I will say very little about in the uniform evidence law.  Before I discuss those provisions I should briefly explain how their potential application arose in this case.  As your Honours would appreciate, the defence did not object to evidence that 1 in 1600 people in the general population would be expected to share the mitochondrial haplotype that was found in the hair on the deceased’s thumbnail and which matched the appellant.  That form of evidence is conventionally referred to as a random occurrence ratio or a frequency estimate.  So, in substance, 1 in 1600.  I will call it from now on a frequency estimate. 

However, defence counsel did object to evidence that 99.9 per cent of people in the general population would not be expected to have a profile matching the hair.  Now, that evidence is conventionally referred to as an exclusion percentage.  Defence counsel relied on section 137.  I do not think she referred to 135 but, as I say, I will come back to that in due course.  Section 137, as your Honours appreciate, is a provision in the Evidence Act which replicates the common law, what is conventionally called discretion, relating to probative value being outweighed by dangers of unfair prejudice.  I will not take your Honours, unless your Honours need me to, to take you to the actual transcript where the objection was taken or reference to 137, although I have given some references, particularly at appeal book 1, page 264 where the objection was taken.

The actual evidence I have described is the 99.9 per cent of people that are frequent – I am sorry, the exclusion percentage.  We discovered that the material in the appeal books is not comprehensive because there was on the voir dire tendered a report from Ms Pineda, which was a two‑page document which contained that particular – it contained the one in 1,600 and contained the 99.9 per cent.  We have got copies and I will hand those up to your Honours just so that you have a comprehensive set of materials.

FRENCH CJ:   This was not before the jury?

MR ODGERS:   No.  There was a voir dire in which Ms Pineda gave oral testimony and she was asked about this.  The key passage is at paragraph 3 on the first page where there is a reference to “0 times in 4839 individuals”.  Subsequently, she changed that to 1 in 4839 individuals but then “(99.9% excluded), that number stayed the same.  She gave oral evidence relating to that on the voir dire which your Honours will find in the appeal book at 274 to 275 and also at 277 where, in particular, she explained how she moved from the 1 in 1600 to 99.9 which essentially was a mathematical exercise in which she converted it to a percentage and then subtracted from 100 per cent.  We have given the references in the outline.

FRENCH CJ:   She got from the 1 in 4839 to the 1 in 1600 as the lower limit by applying that 95 per cent confidence ‑ ‑ ‑

MR ODGERS:   The 95 per cent confidence interval.  That is correct, your Honour.

FRENCH CJ:   And, 5000 was the upper?

MR ODGERS:   Correct, yes.  The evidence that was given before the jury, your Honours will see in the outline, we referred to pages 318 to 319 and 325 in the appeal book.  Again, unless it is necessary, I do not propose to take your Honours to that.  In essence, she gave the same evidence in front of the jury that she had given in the voir dire.

CRENNAN J:   Am I right, the only reference to 99.9 per cent in that evidence occurs on page 319?

MR ODGERS:   Yes, unless it is also at 325 and I do not ‑ ‑ ‑

HAYNE J:   Page 325, line16.

MR ODGERS:   Yes, I think those two pages seem to be the evidence, your Honour.  Unfortunately, the trial judge actually gave no formal written or unwritten ruling on the application to exclude the evidence pursuant to section 137.  Your Honours will see at the appeal book page 298A to B there is a judgment.  That was in relation to a separate issue relating to admissibility.  I think that the fair description would be to say that his Honour made it fairly clear in what had occurred orally between him and defence counsel that he was unpersuaded that the evidence should be excluded under 137.  He made comments which your Honours could infer as to what his reasons were, but he did not provide a formal written judgment in which he spelt out his reasons. 

It was argued in the Court of Criminal Appeal that a miscarriage of justice occurred because of the formal ground was because of the prejudicial way in which the DNA evidence was expressed to the jury, but it became clear in the Court of Criminal Appeal that it was essentially an argument about 137, that is, it was argued that the trial judge had erred in failing to apply either 137 or 135 to exclude the DNA exclusion or the statistical evidence as expressed in exclusion percentage terms.  It was argued by the Crown that in the Court of Criminal Appeal the proper objection had not been taken, but the Court of Criminal Appeal did not accept that and the Crown has not raised any issue about that in these proceedings, so I will not say any more about that. 

Your Honours will no doubt be not surprised that we adopt the reasoning of Justice McClellan, the dissenting judge, in the Court of Criminal Appeal and submit that Justice Simpson, with whom Justice Fullerton agreed, in essence, inappropriately limited the power of a trial judge to prevent unfairness in criminal trials.  In essence, that is our complaint about her Honour’s approach, but I will be more specific as I proceed.  It appears from the Crown’s written submissions that a lot of what has been ‑ ‑ ‑

HAYNE J:   Just before you go on, you said that the ground taken was miscarriage of justice, not a ground of wrong decision of any question of law?

MR ODGERS:   Your Honour, as formulated – in appeal book 4 your Honours will see at page 1863 the actual ground that was put in writing.  It is the first ground, “A miscarriage of justice occurred because of”, et cetera, but when the argument was presented orally, it became clear and the court accepted, Justice Simpson accepted, I do not think there was any issue about it, that it really did become an argument that the judge had erred, made a wrong determination on a question of law in failing to exclude it under 137.

As I say, there seems to be a considerable deal of common ground between the appellant and the respondent about the applicable legal principles, particularly in relation to 137 and 135, but nevertheless, it is my view that the Court might be assisted by at least brief oral submissions from me on those provisions and I am proposing to do that.  Just by way of introduction, your Honours are now, I am sure, becoming very familiar with the Evidence Act, perhaps too familiar, but Chapter 3 deals with admissibility.  You have got the fundamental provision in 56 which says evidence that is not relevant is inadmissible.  Then you have a provision in 56(2) which says if it is relevant it is admissible unless another provision in the Act excludes it.  Relevance is defined in 55 and then, of course, you have got Chapter 3, which contains 135 and 137.

At the time of the trial the heading to Part 3.11 was “Discretions to exclude evidence”.  A lot of comment was made at the time that that was not entirely accurate and in 2009 that heading was changed after this trial.  There was no change to the actual terms of 135 or 137, they have remained unchanged since 1995, but the heading became “Discretionary and mandatory exclusions” to reflect the fact that 137 is expressed in mandatory terms.  I just mention that to draw it to your attention.  Now, 135, I will touch on briefly.

FRENCH CJ:   Is it the position that you do not rely on 135?

MR ODGERS:   It is in the alternative, your Honour. 

FRENCH CJ:   Your primary position is 137 as a mandatory exclusion?

MR ODGERS:   Absolutely.  The only reason why we would need to rely on 135 is if your Honours took a narrow view of what unfair prejudice was.  If your Honours took a view that what we contended to be the risk, the dangers of unfair prejudice in this case, were not properly so characterised, then it may be necessary to rely on words like “being misleading or confusing”.

FRENCH CJ:   Then what is the error in the exercise of the discretion under 135 if that is the case?  Is it a failure to address it or is it some other?

MR ODGERS:   Perhaps if I could come back.

FRENCH CJ:   Come back to that perhaps, yes.

MR ODGERS:   I will explain later what I say the judge got wrong in respect of that.  It is interesting that 135 essentially replicates Rule 403 of the US Federal Rules and it is virtually identical with that provision.  I will be taking you in a moment to the decision of the United States Supreme Court on 403.  So, strictly speaking, if that is the right terminology, it is more applicable to 135, but we say everything that is said in that decision also applies to 137.  But I just mention by way of a discursus that to the extent that there are statements in the US Supreme Court or in other courts in the United States about an approach to 403, you have to bear in mind that 135 is the comparable provision, not 137.  There is no provision in the US Federal Rules with corresponds to 137. 

Turning then to 137, your Honours will immediately notice some aspects of the provision applies to any evidence “adduced by the prosecutor”.  So obviously we are not talking about defence evidence, we can put that to one side, but there is this word “evidence” which may – Justice Simpson took a view of that word which I will come back to in a moment.  Your Honours will appreciate that it is mandatory in the use of the word “must”.  I would also note at this point that section 190 of the Evidence Act which deals with waiver of various parts of the Evidence Act does not extend to 137.  So there is no capacity for either the parties or the judge to waive the operation of 137.  Returning to 137, it is a balancing test involving, obviously, an element of judgment by the court or the trial judge, in particular.  On the one hand you are balancing “probative value”. That is defined in the dictionary to the Act and in the outline I have extracted the definition.  It is:

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. 

That is similar in form of words to relevance, of course, but incorporates this idea of extent or degree.  There is no definition in the dictionary to the Act of the term “unfair prejudice”.  That is the overview.  As I have said and I have not said, but there is no definition, not surprisingly, of the term “evidence”, but as we argue in the written submissions at page 15, we submit that that should be read broadly, that each assertion made by a witness should be considered as a discrete item of evidence to which the provisions apply.  So that, in essence, even though two statements may be understood to contain the same content, they are still two discrete items of evidence, so that when a witness says 99.9 per cent of people in the general population would not have a DNA profile matching the hair, that is a different piece of evidence to 1 in 1600 people in the general population would be expected to share the DNA profile, regardless of the fact that the substantive content may be said to be the same.  That is referred to at page 15 at paragraphs 49 and 50.

HAYNE J:   Well, that is to abstract the issue and to take it at a level of abstraction which may not be entirely helpful.  If we go to 318 and 319 of the appeal book, we see the evidence that was led at the trial before the jury, do we not?

MR ODGERS:   Yes, your Honour.

HAYNE J:   The particular question would be, I would have thought, whether the witness could give that part of her evidence which commences at line 49 on 318 in the words, “If you take that frequency” through to the end of that answer.

MR ODGERS:   Yes, your Honour.  An important part of our argument ‑ ‑ ‑

HAYNE J:   Observing that there is mathematical equivalents may or may not be important in determining the weighing, but she gave this evidence.  She stood in the box and said, “If you take that frequency and invert it, this is what I say”.

MR ODGERS:   Yes, that is our submission.  Moving then to the point your Honour prefaced it by saying it may not bear on the weighing exercise, we strongly submit that it actually does, the fact that it is the same content.  An important part of our argument is that courts should assess probative value in the light of other evidence that has been or will be admitted in the trial.  In the light of that assessment it may be concluded, as we say it should have been in this case, that the probative value of an item of evidence in question is minimal. 

Here the other evidence that was to be admitted or had been admitted, was not the subject of objection, would be admitted in the trial included the frequency estimate evidence which, as Justice Simpson observed, had the same content – mathematically equivalent as your Honour Justice Hayne has put it – as the exclusion percentage evidence.  In those circumstances, to use the language of the definition of probative value, the exclusion percentage evidence could rationally only have a minimal effect on the assessment of a probability of the existence of a fact in issue in the proceeding because it added virtually nothing, if anything, to the substance or content of the evidence that was already before the jury. 

That this is an appropriate way to look at 137 is supported by a number of judgments.  The decision of the US Supreme Court in Old Chief, which I will go to in a minute, but also the approach of the common law in this country as highlighted in the case of Driscoll, and I will take you to that in a moment as well.  If I could take you to Old Chief v United States.  This was a case where the prosecutors wanted to get in the accused’s prior convictions and the details of them and the accused tried to prevent that by, to use the American language, stipulating to the fact that he had prior convictions.  So the question was, did the fact that he was going to stipulate that, in essence, the content of the evidence that the prosecution wished to lead would be before the jury, did that justify an application of Rule 403 to exclude the actual evidence of the prior convictions which the prosecution sought to lead?  At 589 in the judgment of the majority there is a passage on which we rely.

HEYDON J:   You said 589.  My copy begins on page 172.  Have you got a different ‑ ‑ ‑

MR ODGERS:   As your Honours appreciate, the US Supreme Court has a multiple of different versions.  The one that we were told that the High Court would be using is the US Supreme Court Reports 136 L Ed 2d.

HAYNE J:   Lawyer’s edition.

MR ODGERS:   Lawyer’s edition, thank you, your Honour, beginning at 574.  Your Honours do not have that?  We were told that that was what would be relied on.

HEYDON J:   Perhaps the footnote numbers might help.

MR ODGERS:   I am sure they will, I hope.  There is a footnote 6.  It is a paragraph beginning “As for the analytical method”.

BELL J:   Page 182.

MR ODGERS:   Thank you, your Honour:

As for the analytical method to be used in Rule 403 balancing, two basic possibilities present themselves.  An item of evidence might be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether the danger substantially outweighs the value and whether the evidence ought to be excluded.  Or the question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made.  This second approach would start out like the first but be ready to go further.  On Objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice.  If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well.  If an alternative were found to have substantially the same –

which, of course, is this case –

or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially –

the word of course “substantially” corresponds to Rule 403 and not to 137 –

outweighed by unfairly prejudicial risk.  As we will explain later on, the judge would have to make these calculations with an appreciation of the offering party’s need for evidentiary richness . . . It would only mean that a judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point.

Then in the next paragraph, their Honours say that the first approach, looking at it as an island on its own, is open to a very telling objection, which I will not read.  Then in the next paragraph beginning with the words, “Rather, a reading of the companions to Rule 403”, they concluded that that supported a conclusion that you should look at other evidence in applying Rule 403.  It is pertinent to the court’s discretion to look at other evidence.  Then towards the end of that paragraph there is a reference to McCormick, about 10 lines from the end of the paragraph:

See 1 McCormick 782, and n. 41 (suggesting that Rule 403’s “probative value” signifies the “marginal probative value” of the evidence relative to the other evidence in the case) –

That term “marginal probative value”, we have used the term I think in the written submissions “incremental probative value”, but it is the same idea.  That was the approach of the Supreme Court and, as a result, they concluded that even though the evidence of previous convictions that the prosecution sought to lead, looked at on its own, had significant probative value, when you took into account the stipulation, the probative value was very significantly reduced for the reasons they articulated and then they concluded that the discretion in Rule 403 should have been exercised.

HAYNE J: It is relevant to consider the dissenting opinion of Justice O’Connor at 193, 519 US 172, in the section marked 1, “Rule 403 provides that a district court may exclude”, in particular, her Honour’s reference to the need to determine that the prejudice is unfair prejudice.

MR ODGERS:   Of course relevant and of course something that your Honours would consider.  I did not take your Honours to that because there does not seem to be any clear discussion of the precise point that I am relying on.

HAYNE J:   I understand that, but do you accept that the inquiry, at least under 135, is an inquiry for what her Honour refers to as unfair prejudice?

MR ODGERS:   Of course and, indeed, under 137, it is danger of unfair prejudices.

HAYNE J:   And that unfair prejudice in this context can at least include prejudice that has, as her Honour puts it by reference to the advisory committee’s note, an undue tendency to suggest decision on an improper basis.

MR ODGERS:   Your Honour, that was something I was going to come to when I made submissions about the danger of unfair prejudice side of the balancing exercise, but I will say something in response to it now.  Certainly, 137, danger of unfair prejudice, includes that kind of unfair prejudice that your Honour just read out from Justice O’Connor’s judgment, that is, that the jury will use the evidence in an improper way.  Are we arguing that unfair prejudice in 137 is not limited to that and, in particular, that it includes a danger that the evidence will be given more weight than it properly deserves, which is a different idea, and I will seek to demonstrate that on the basis of Australian authority, but I would make the point here that this relates back to the point I was making earlier about Rule 403. 

American courts have been able to adopt a relatively narrow approach to unfair prejudice because Rule 403 refers to unfair prejudice or tendency to confuse or mislead and those other alternatives.  Therefore, something that might be characterised as a tendency for a jury to be misled, like, for example, give it much more weight than it really deserves, it is not surprising that the American courts have used that approach rather than characterise it as unfair prejudice.  However, in Australia, where 137 is a provision which only talks about unfair prejudice and where confusing and misleading is in 135, there has been a question whether or not unfair prejudice is so narrowly constrained and, in my submission, it is going to be clear to your Honours that it is not limited to unfair prejudice in the sense of risk that the jury will use it in an improper way, but I will come to that to answer your Honour’s question.

I would also mention that Justice O’Connor quite properly made the point and it is one that we have to contend with, which is that in determining whether or not there is unfair prejudice it is appropriate to consider what directions a judge is going to give to a jury.  That is a well‑established proposition.  Obviously it is conceivable that things that are said by a judge will either reduce or cure dangers of unfair prejudice, and I will have to come to that in due course in my submissions.  That was a point made by Justice O’Connor.  There is no issue about that as a general principle.

CRENNAN J:   That question of whether a piece of evidence might be given unfair weighting, would that be considered in the context of the evidence in relation to frequency, the 1 in 1600, or would it somehow be considered in isolation?

MR ODGERS:   No, perhaps I have misunderstood your Honour, but the question comes down to this.  Given that the jury will have before them the evidence of the 1 in 1600 and therefore given we would contend that the exclusion percentage evidence is of marginal probative value properly understood, is there a real risk of unfair prejudice in the sense that the jury will give that exclusion percentage evidence significantly more weight than it properly deserves or some form of words like that?  That becomes the question that the trial judge needs to turn his or her mind to.

CRENNAN J:   They always preface the weight question with having regard to the evidence of 1 in 1600 together with the 99.9 per cent.

MR ODGERS:   Yes, that is quite true.

CRENNAN J:   That is really what I am directing your attention to.

MR ODGERS:   Yes, it necessarily, just as in assessing probative value you consider the fact that you have got the other evidence, the 1in 1600, so in terms of assessing risk of unfair prejudice it is appropriate that you assess that in the light of the fact that the jury will also have the 1 in 1600, I have to accept that.

HEYDON J:   Does that make admissibility turn on the order in which the different pieces of evidence are tendered?

MR ODGERS:   No, with respect, I had thought that what the majority of the US Supreme Court had said in Old Chief had made it fairly clear that if you took it as an island approach, then it would have significance because it would make a big difference the order in which you presented it.  The answer to your Honour’s question is, no.  If the judge is satisfied that an item of evidence will be admitted in the proceeding, then even if it has not formally been admitted at that point it would be appropriate to take that into account or perhaps defer making a judgment about the admissibility under 137 of the other item of evidence, but, no, it should not in any practical sense make any difference at what point in the trial it occurs so long as the parties are able to resolve the question of what evidence will be admitted subsequently.

Your Honours, I have just noticed something else about Old Chief which I will just have to check whether I need to mention it.  Can I just take you back to Old Chief one last time.  This is really at the very end of the majority’s judgment.  It is the paragraph beginning “Given these peculiarities”.

BELL J:   Page 191.

MR ODGERS:   Thank you, your Honour:

Given these peculiarities of the element of felony‑convict status and of admissions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission –

that is, stipulation –

and of the legitimately probative component of the official record the prosecution would prefer to place in evidence.  For purposes of the Rule 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other.  In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.

Section 137 is based on the common law discretion to exclude unfairly prejudicial evidence in criminal cases.  We have provided to your Honours the ALRC Interim Report on Evidence.  There is just a very short passage I want to take your Honours to.  It is paragraph 957 in volume 1 of the interim report and there is nothing in the final report which altered what was said here.  It is a short paragraph.  In it the Law Reform Commission noted that:

Under present law, a trial judge in criminal cases has a discretion to exclude evidence adduced by the prosecution if it is more prejudicial than probative. 

Then there is a reference to uncertainties with it which I will not go to.  Then there is a reference, about six or seven lines down, to some uncertainty over the meaning of “prejudice” and what I will read out next is a response to Justice Hayne:

But, clearly, it does not mean simply damage to the accused’s case.  It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.  It is proposed to retain this judicial discretion in its conventional form.

I will come back, as I say, to the concept of unfair prejudice in a moment, but I just want to now just quickly take your Honours to the decision of the High Court in Driscoll which again bears on this question of probative value.

FRENCH CJ:   Just so we can put this in the particular context, can you just encapsulate it, as it were, out of your submissions in a kind of dot point summary what are the misuses of the exclusion percentage that inform the concept of unfair prejudice for the purposes of section 137?  You speak, I think, at one point of distraction from the random occurrence ratio, then the risk of falling into the prosecutor’s fallacy, conversion to probability.  You speak of giving it undue weight.  What does that actually mean, apart from those other things I have just mentioned?

MR ODGERS:   Your Honour asks, with respect, a very good question and we have struggled a little bit with terminology.  In the outline your Honour will see that at point 7 we have actually articulated two particular aspects of what we say are unfair prejudice and those are the things that I am going to spend a little bit of time developing; risk of encouraging mathematical rather than inductive reasoning and risk of fallacious reasoning.  They may not be appropriately even described as giving it more weight than it deserves, but we would say they would both be forms of unfair prejudice and I will attempt ‑ ‑ ‑

FRENCH CJ:   The fallacious reasoning, that is just a prosecutor’s fallacy, is it?

MR ODGERS:   Not just that, no.  As I say, I will come back to it, but they are the two ‑ ‑ ‑

CRENNAN J:   When you do come back to that, would you bear in mind at appeal book 1921 Justice Simpson in paragraph 193 makes an observation about weight and she essays the view that given the statistical analysis of the DNA evidence, and she has already referred to the fact that 1 in 1600 and 99.9 per cent are the same evidence but expressed differently, the evidence was capable of bearing very great weight.

MR ODGERS:   This is a reference to paragraph 193?

CRENNAN J:   Yes.

MR ODGERS:   Yes.  I will be contending in a very short while, I will contend now that that discloses error because her Honour has effectively looked at the evidence in isolation and not looked at it in terms of its incremental or marginal probative value, that her Honour has looked at it disregarding the facts that evidence that the 1 in 1600 would be before the jury or was before the jury and that her Honour’s approach, for that very reason, involves error.  I do not know if I have made myself clear.

CRENNAN J:   Well, in a sense, one point her Honour is making, as I understand it, is the 1 in 1600 bears very great weight just as does the 99.9.

MR ODGERS:   Yes, your Honour, quite.  The point I am making is that the content of both items of evidence, which is the same, they are mathematically equivalent, that content we do not dispute had significant probative value and the fact of the matter is, of course, there was no objection to the 1 in 1600, so the substance of the evidence was before the jury without objection.  What we contend though is that the probative value properly understood of the different way of expressing it was actually minimal because it added nothing in substance to what was already before the jury and that that is ‑ ‑ ‑

CRENNAN J:   That is the Old Chief point.

MR ODGERS:   Yes, it is exactly the Old Chief point and so we say that when her Honour said, well, the exclusion percentage evidence is capable of bearing very great weight, we say that that involves, in fact, an error of analysis on the basis of the Old Chief point, but I will come back to that.

I think I was taking your Honours to Driscoll.  The relevance, of course, of this is that the Law Reform Commission intended, and I think it is well accepted, that 137 substantially reflects the common law of what can be sometimes called discretion, although that observation, of course, has been qualified in a number of ways which I will not burden your Honours with.  At page 541, in the judgment of Justice Gibbs, with whom the other members of the Court agreed – I think Chief Justice Barwick had a separate judgment, but I am not sure that he significantly differed from Justice Gibbs, but, in any event, Justice Gibbs, the other members of the Court agreed with him – he said the issue, and there were a number of issues in Driscoll, but the relevant issue for these proceedings is evidence of a verbal, the old verbal, which was an unsigned record of interview, that is, you have the police say, “We give oral evidence, he confessed,” and then they tender a document which they say is a written record of the interview which is unsigned but they say was adopted by the accused and therefore technically admissible.  Justice Gibbs said:

Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter.  It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused.

Then there is a reference to some authorities.  In the next paragraph, the middle of the page:

It is manifestly in the interests of justice that wherever possible a contemporaneous written record should be prepared –

Then a few lines down there is a reference to the decision of Justice McClemens in Ragen who suggested –

it would be more satisfactory to put before the jury the contemporaneous record itself than to allow a witness to give oral evidence –

Then his Honour Justice Gibbs says –

The answer to this suggestion is that as a general rule such a record, if unsigned, will add nothing to the weight of the testimony of the police officers who give oral evidence as to what was said in the course of the interrogation, and will in itself be of little evidential value.

If I could just stop there.  That, with respect, is an application of the principle in Old Chief.   It is, in essence, saying you have got a document, it really adds nothing to the oral testimony of the police, it will in itself – “in itself” is perhaps misleading – it will in the context of the oral evidence be of little evidential value.  I am going to continue on.  Then there is a discussion of unfair prejudice:

The fact that a police officer has sworn that the accused adopted the record makes it legally admissible, but it is for the jury to decide whether they are satisfied that the accused did adopt it . . . The fact that the record had been prepared would in most cases be of no assistance to the jury in deciding whether the accused person had adopted it.

As for reasons that are explained over the page.  Then there is a reference to the danger, this is five lines down:

The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony.  Moreover the record, if admitted, will be taken ‑ ‑ ‑

FRENCH CJ:   That is a particular species of unfair prejudice and, I suppose, what we need to focus on is, in the context of 137, the unfair prejudice in this case.

MR ODGERS:   I completely accept that.

FRENCH CJ:   There is no point of principle to be drawn out of that, is there?

MR ODGERS:   I am just taking your Honours to the next few words that the record:

may have an influence upon their deliberations which is out of all proportion to its real weight.

FRENCH CJ:   You will have to tell us how that works in the context of this case.

MR ODGERS:   I understand that, your Honour.

HAYNE J:   It either works or does not work, Mr Odgers, on the proposition, I think, that observing that 99.9 per cent of the population could not be the offender distracts attention from the jury’s necessary focus upon whether this accused is the offender.  Now, either that point is good or it is bad.

MR ODGERS:   I would slightly reformulate it.  Distracts attention – and I think this is the point that Andrew Ligertwood makes in his article – from what should be the central focus, which is the possibility that, in this context, that it was somebody else’s hair because of course, in truth, if it was the accused’s hair, then since he never suggested that he had been to the apartment, it pretty much was the end of the story.  So the point I am making is, focus on the possibility that some other persons had been responsible – starting again – that it was someone else’s hair, that possibility.  I can see that I should not continue any more on these general principles.  The only thing I would ‑ ‑ ‑

HAYNE J:   Take a simple example.  Simplify the numbers.  The numbers are 1 in 2000.  Assume the relevant population to consider is the population of Sydney.  Let us round it out at, what, five million, say?

MR ODGERS:   Yes, your Honour.

HAYNE J:   Round it out at that.  One in 2000 of five million equals what?  This is what we are asking the jury to do, Mr Odgers, your are familiar with this, what is the answer?

MR ODGERS:   Your Honour, I have not got my calculator with me and ‑ ‑ ‑

HAYNE J:   Never give a lawyer a calculator.  That just shows they know where to turn it on.  This is what we are asking the jury to do.

MR ODGERS:   Yes, your Honour.

HAYNE J:   It will yield a number.

MR ODGERS:   Yes.  The point I think ‑ ‑ ‑

HAYNE J:   A number of persons from the population of Sydney who could be the offender.

MR ODGERS:   Could be the person who left the hair?

HAYNE J:   Yes.  Now, to observe that there are, whatever the number is ‑ ‑ ‑

MR ODGERS:   It is a substantial number.

HAYNE J:   Yes, who could be – may convey one thing to a jury.

MR ODGERS:   Yes.

HAYNE J:   What is it helping them to tell them that there is another four point whatever million who could not be?  Either there is a point there or there is not a point, but can we come and grapple with that point?

MR ODGERS:   Yes, your Honour.  In the light of what your Honours are saying to me ‑ ‑ ‑

HAYNE J:   Just me.

MR ODGERS:   I know that, your Honour, but I am sensing a general view.

HAYNE J:   Do not do that.

FRENCH CJ:   Do not try and guess the vibe.  It is terribly misleading.

HAYNE J:   Exactly.

MR ODGERS:   Your Honours, I have understood from day one that apart from the important point I made about probative value which I needed to make, that this case turns on danger of unfair prejudice and there is particular circumstances of this case and I will be very soon coming to explain, to develop why in this case there were dangers of unfair prejudice.

FRENCH CJ:   That is the killing point here. 

MR ODGERS:   Of course.

FRENCH CJ:   You keep telling us the cheque is in the mail, but you should get to it.

MR ODGERS:   I understand, your Honour, I am going to get there probably in one minute.  I do, however, rely of course on what the Court of Criminal Appeal said in the cases of GK and JCG where Justice Sully in the first case and Justice Spigelman in the second talked about good reasons why similar evidence to that in this case should have been excluded.  Very similar issue, on the one hand random occurrence ratio evidence, it is also presented as a percentage exclusion and that both courts thought it was appropriate or should have been the case that the latter should be excluded under 137.

FRENCH CJ:   You are not positing it as a general rule of exclusion.  It has to be unfair prejudice in the circumstances of this case.

MR ODGERS:   Correct.  Can I just say, your Honours, again it is, perhaps your Honours may think, of marginal relevance but, interestingly enough, since the decision of the Court of Criminal Appeal in Aytugrul, the Victorian bench book has been amended so that it now reads that essentially any way of formulating this kind of evidence, as long as it is mathematically equivalent, is permissible.  So, in fact, the practice has now become, in Victoria, that there is really no limitation on how you can present this kind of evidence.  I can provide the bench book if it is of any assistance to your Honours, but I will not unless your Honours ask for it.

BELL J:   Can I just inquire one aspect relating to the way this matter was presented in the Court of Criminal Appeal because you were taken a few moments ago to Justice Simpson’s judgment at appeal book 1921, paragraph 193.  In the succeeding paragraph, Justice Simpson says that in the course of the hearing in the Court of Criminal Appeal, the question that the Chief Justice asked of you a few minutes ago to identify the unfairness was pressed on counsel then appearing for the appellant and that there was no answer to that save to refer to the decisions in GK and [JCG], which I think is reported under initials. 

MR ODGERS:   Yes.

BELL J:   Now, was there material before the trial judge or the Court of Criminal Appeal to make good the proposition respecting the evidence pointing to the reasoning of sample jurors when confronted with the percentage?

MR ODGERS:   As I understand it, no.

CRENNAN J:   There is quite a degree of material in the chief judge’s judgment being a literature survey, but was that ‑ ‑ ‑

MR ODGERS:   My understanding is it was not tendered by either party before the court.  In essence, one understands that counsel for the appellant relied on the statements in GK and JCG in terms of the various reasons that were given by those judges as to why the evidence has a risk of unfair prejudice.  For example, subliminal impact was a term that was used by Justice Sully.  So, in essence, your Honours, it comes down to this.  You have cases where judges have formed a view, based on their own intuition, there is a danger, a risk, they have relied on that and said that judges should exclude this kind of evidence.  Then the case comes before the Court of Criminal Appeal, the same counsel relies on that line of authority.  Justice McClellan goes out and actually investigates literature and finds some experimental support for those risks and articulates them and we ourselves have, to some extent, done some investigation, and our friends have done as well, of literature to develop that and to assist your Honours on this question. 

So I am really now coming to, really, the literature which we say supports, in particular, two kinds of unfair prejudice and they are the kind that I have put in the outline; risk of encouraging mathematical rather than deductive reasoning and risk of fallacious reasoning.  In particular, the first, I rely on the Koehler article, which is number 10 in the list of authorities, and the Ligertwood article, which is number 11.

Now, juror studies identify what is now I think a fairly well‑established proposition, that there are changes in the weight given by mock jurors to the same DNA evidence in response to linguistic changes in the presentation of the evidence.  The Koehler article – and I am not going to take your Honours through it in any detail – supports the proposition that the changes in the weight that juries give to DNA evidence, statistical information about DNA evidence, is particularly acute when the evidence is given in frequency terms as compared with when it is presented in percentage exclusion terms.  If I could put it this way.  The Koehler article, particularly at pages 1283 to 1284, we say demonstrates that an exclusion percentage formulation encourages a narrow outlook in which the instant case is thought of in isolation rather than allowing or encouraging the jury to easily imagine the existence of others who might share the profile.  I am going to come back to the Koehler article in a moment, but I just now want to turn to the Ligertwood article and particularly the ‑ ‑ ‑

HEYDON J:   Can I just interrupt.  The author talks about research on probabilistic reasoning.  Is that an examination of how juries or artificially constructed groups of people as juries actually reasoned or is it more a priori in its reasoning?

MR ODGERS:   As I understand it, experiments were conducted with mock jurors in which they were presented with DNA statistical evidence in different ways and then conclusions are drawn from how they responded to the evidence presented in those different ways.

HAYNE J:   I thought Professor Koehler had written more than this piece on DNA.

MR ODGERS:   He has.

HAYNE J:   If we are going to be taken to one of them, what are we to make of it?  I thought his work included more recent work than this, too.  Perhaps I am mistaken.

MR ODGERS:   We are unaware of that, your Honour.  If there is, I cannot help your Honour with that.

HEYDON J:   This may not be fatal, but if Justice Callinan were here, there would be a fair bit of aggravation at this point.  This is not a matter of fact in issue between the parties.  It is a factual controversy that goes to the admissibility of evidence.  In a purist world it would have been shown to Acting Justice Hulme on the voir dire and then fully considered by the Court – it would have been in the open and considered by the Court of Appeal.  Did I understand you correctly when you said that the chief judge, as it were, referred to research work that had not been ventilated in argument between the parties?

MR ODGERS:   Yes, your Honour.

HEYDON J:   It may not be fatal to do what we are doing now here, but if Justice Callinan were here, there would be some aggravation.

MR ODGERS:   Yes, I understand that, your Honour.  I think it is fair to say that it is desirable that the material like that be ventilated so that the opposing party has an opportunity to respond.  I accept that, but we say it is not fatal in the circumstances of this case. 

CRENNAN J:   What about subsequent contestation of Professor Koehler’s views?  Are we provided with any of that material?

MR ODGERS:   The Crown, respondent, has some material which they are going to be relying on and I am not sure whether they are going to be – I do not think they are contesting the Koehler analysis.  I think what their position is is that in the particular circumstances of this case the dangers were minimal or non‑existent.  I do not think there is any challenge to the basic propositions of fact about how studies, experiments in respects of jurors indicate that they tend to reason.

FRENCH CJ:   There is a problem, I think, without the aid of, as it were, tested expert evidence that selected pieces of literature in a field of behavioural science which we do not know the range of the contest about both methodology and conclusions and the extent to which some of these things are repeatable and have been repeated or falsified.

MR ODGERS:   I have conceded that. 

FRENCH CJ:   In the ordinary course, a judge being called upon to make a judgment under section 137 is unlikely – it may be possible, I suppose, that this sort of material could be brought on a voir dire, but, as I understood it, one of the core elements of your complaint was that distraction from the random occurrence ratio distracted the jury from the very kind of exercise that Justice Hayne put to you before and I suppose one can link that to the notion that the exclusion percentage is a fairly course measure in a way.  If you look at the 1 in 50 of the Turkish subpopulation, the exclusion percentage is 98 per cent.  If you look at the 1 in 1600, it is 99.937 per cent.  Now, I can understand without the help of a great deal of behavioural science how there is a point to be made that there might be a distraction from what is most useful from the accused point of view at any rate.

MR ODGERS:   It may be that all the behavioural science stuff does is confirm what your Honours can reason based on just simple commonsense, which is that if you talk about one in a number, then that tends to draw one’s attention to the fact that in a larger population that means necessarily there will be more people, the number of people, who could also have been the source of the DNA.  Conversely, when you use percentages like 99.9 or 99.99, it tends to focus one’s attention on the mathematical strength, the apparent mathematical strength of the item of evidence.  So, in essence, your Honours, it may be that the literature is just supporting what is something which is self‑evident, in any event.

HAYNE J:   It comes to the point that proving that a lot of people did not do it does not immediately help in determining whether this accused did it.

MR ODGERS:   If this material is unhelpful to the Court, then I apologise for providing it to your Honours, but we thought it would provide some assistance and I will just say some short things about it.  If I could just go to Andrew Ligertwood’s article and his conclusion at page 326.  Again I am not going to go through it in great detail, but as a preliminary matter, can I just say this.  Mr Ligertwood makes the point that the ultimate question of proof beyond reasonable doubt is not a mathematical exercise.  It is ultimately a question of whether or not, particularly in a circumstantial case, whether or not the prosecution has excluded any reasonable alternative possibility consistent with innocence and, of course, in this context it really comes down to excluded the reasonable possibility, or at least on one view, the reasonable possibility that someone else was responsible for the hair, and that is what he calls an inductive approach rather than a deductive approach, in which you sort of combine probabilities and try to work it out in a sort of mathematical way.  That is not how Australian courts or, indeed, any courts approach proof beyond reasonable doubt.  That is an introduction to what he then says, which is that DNA evidence should be presented:

in a way that encourages inductive rather than mathematical reasoning.  This can be achieved through presenting DNA evidence in terms of relative or expected frequency rather than in terms of relative likelihood, whether expressed as a ratio or through a percentage.  This appears to be the approach taken by the English courts and it is suggested that Australian courts should do the same.

I am reminded, your Honours – I will not take your Honours to it – but we have put on the list of authorities the case of Doheny which is probably the leading English authority in DNA evidence and the point ‑ ‑ ‑

FRENCH CJ:   The reference?

MR ODGERS:   I am sorry, your Honour.  It is R v Doheny [1997] 1 CR App R 369.  Your Honours have it.  The important point about Doheny is at 374 to 375 Lord Justice Phillips indicated how DNA evidence should be presented and, in essence, he said that it should be presented by a random occurrence ratio.  Then, if appropriate, by spelling out to the jury how many people in, say, the United Kingdom would be expected to have the same profile, the point being that that draws attention to the number of people who would be expected to have that same profile as the accused and the relevant source.  There is nothing in that judgment which encourages the use of probabilities or exclusion percentages and, indeed, at 375 there is a suggestion that it would be appropriate for a judge to give a direction emphasising those points.  Again, I will not take your Honours to it except to say that the direction that his Honour Justice Phillips thought was appropriate was not given in this case. 

Mr Ligertwood was referring to English courts.  He was referring to that decision and, in essence, his article was saying it should be presented in random occurrence ration terms because that encourages the right of way to look at this kind of evidence.  It should not be presented in exclusion percentage or, indeed, any percentage terms because that really fails to do or encourages a mathematical approach.  The point is, in simple terms, presenting it in exclusion percentage terms tends to detract the attention of jurors away from considering the possibility of other matches. 

Interestingly, your Honours, your Honours may be aware that there is an increasing practice around the world for scientists when they are describing DNA evidence not to use percentage terms, not to use maths, but to use linguistic formulations like strong probability of a match, that kind of language, which we would say is a recognition by those very scientists that there is a problem with percentage formulations in terms of the impact it may have on the jury and the way that it might mislead them and might, in some cases, inappropriately tip a jury over the line to removal of a reasonable doubt without a proper consideration of alternative possibilities.

Can I say, by way of just a digression, that the trial judge at one point made a point that, well, the jury could convert it themselves, and I need to say just briefly, my response to that is that the possibility that a juror or a jury might themselves convert the random occurrence ratio into an exclusion percentage does not support an argument that such a conversion should be invited or encouraged by letting in the evidence in this case.

Now, the next point is, before I come to the risk of fallacious reasoning, the Crown, respondent, has argued in their submissions, and I will deal with it now, that whatever the problems may be when you have very high numbers, you know, one in a million, one in a trillion, that in their submissions it is not really a problem with low match ratios, that either that balances or ameliorates the risks.  We have responded to that in our reply at paragraph 8, and I will not read it out, I will not go to it in any detail, but can I just say that Koehler’s study suggests that the risks of undue weight being given to percentage or fractional figures actually decreases as the match odds get higher.  So as you get into millions, then the risks of the jury giving undue weight to the percentage exclusion is reduced.  That is to be found at 1293 through to 1295.  So we would say that that study tends to the reverse of what the Crown contends.

Also in response, I think Justice Crennan raised with me a point which is, with respect, an entirely valid one, which is, are the problems reduced or the dangers reduced if a jury gets both formulations, not percentage exclusion on its own but also at the same time a random occurrence ratio?  To the extent that it assists, common sense might suggest that there is a risk the jury will focus on one rather than the other, and focus on the ‑ ‑ ‑

FRENCH CJ:   Not just being given both, being told they are the same, the same thing, they are measuring the same thing.

MR ODGERS:   Yes, I accept that.  Yes, that is true.  Koehler’s study at page 1293 seems to indicate, we would say, that it is still a serious problem, that there is a significant increase in conviction rates compared with a situation where you only give the likelihood ratio.  If you give both, there is still a significant increase in conviction rates which tends to suggest that even though it is a situation where it is the substance – the content is the same, the addition of the exclusion percentage has a significant impact on the jury’s approach to the evidence. 

In any event, if I could conclude on this point, we say that the greater the pool of possible alternative candidates – and in this case there was a substantial pool of alternative candidates, both in the general population and also in the Turkish population – the more caution should be exercised by courts about allowing formulations that tend to disguise or undervalue that consideration of the pool of possible alternative candidates.  If I can turn to the second aspect of unfair prejudice, the risk of fallacious reasoning.  Again, if I could take you to Koehler.  I will go to this part of his article at 1301 and it is in the second paragraph from the bottom:

On the other hand, studies also show that people reason better with statistical data that are presented as frequencies rather than as probabilities.

Then there is a reference to a footnote to various articles.  So it is saying that studies have shown that people just understand, comprehend, work better with, make more sense of statistical data presented as frequencies rather than probabilities.  Then –

People are not only more likely to reason in accordance with the logic of probability theory with frequencies than with probabilities, but a frequency presentation decreases the risk that people will subscribe to various statistical fallacies.

This, of course, is the point the Chief Justice raised with me, which is the greater risk of certain fallacies, in particular, what is call the prosecutor’s fallacy, and your Honours will see at footnote 71, there is a reference to various articles, including Thompson & Schumann, which is referred to in brackets, which we have provided to your Honours and I will not take you to it directly, but the essence of the conclusion in that article is summarised in the brackets.

At this point, I want to hand to your Honours, I apologise, another article which we have not provided to this point.  It is short and it is pithy and it is helpful, I hope.  It is two pages.  It is in the journal “Science” in 2000.  I will provide that to your Honours.  Can I just take your Honours to some short excerpts from it?  The first paragraph:

Decisions based on statistical information can mean the difference between life and death – for instance, when a cancer patient has to decide whether to undergo a painful medical procedure based on the likelihood that it will succeed, or when a jury has to decide whether to convict someone based on DNA evidence.  Unfortunately, most of us, experts included, have difficulty understanding and combining statistical information effectively.

Then an example was given of some questioning of experts at Harvard Medical School, and then at the bottom of that first column:

It makes little mathematical difference whether statistics are expressed as probabilities, percentages, or absolute frequencies.  It does, however, make a psychological difference.  More specifically, statistics expressed as natural frequencies improve the statistical thinking of experts and non‑experts alike.

Again there is reference to various examples and studies.  In the third column on 2261, about halfway down, there is a paragraph which reads:

Natural frequencies facilitate inferences because they carry implicit information about base rates and reduce the number of computations required to determine the positive predictive value of a test.  They also correspond to the way in which humans have experienced statistical information over most of their history.

Then on the next page, first column, last paragraph:

Percentages can mislead in other ways.  For example, it may sound impressive to learn that mammography screening can reduce the risk of breast cancer fatality in women by 25% . . . However, this percentage does not say anything about the actual frequencies.

It is then explained why.  Then perhaps most relevant to your Honours, on the second column about halfway down, there is a study conducted in Germany in relation to DNA matching:

we asked 27 professionals who would soon qualify as judges and 127 advanced law students to evaluate two criminal-court cases files involving rape.

At the bottom of that column:

When these statistics were expressed as probabilities, only 13% of the professionals and under 1% of the law students correctly inferred the probability that the defendant was actually the source of the trace.  But when the identical statistics were stated as natural frequencies, 68% and 44% of these same participants made the correct inference.  The different ways of expressing the same statistical information altered the verdicts in each case.

The last paragraph of the article:

Teaching representations rather than rules – and expressing statistical information in natural frequencies where appropriate – can help to foster the statistical reasoning needed to make sound decisions.

HAYNE J:   That is largely, I think, building on the work of Gigerenzer at Max Planck Institute.

MR ODGERS:   Yes, that seemed to the case, your Honour.  That leads me to the risk of the prosecutor’s fallacy.  I am sure most of you are familiar with that concept, but there is a useful summary of it in Justice McClellan’s judgment at 1888, paragraph 78, where his Honour said:

The Prosecutor’s Fallacy is a failure in statistical reasoning that invites the jury to assume that a DNA statistic provides a statistical likelihood that the incriminating DNA belongs to the suspect and therefore that the suspect is guilty.

In essence, to give an application to this case, where you have evidence that 99.9 per cent of people would be expected not to match, the fallacy would then be to reason that means that it is 99.9 per cent likely that the hair came from the accused.  That is fallacious reasoning.  It may be that that is the kind of subliminal impact that Justice Sully was referring to in GK, that you have a 99.9 per cent, as properly understood, and then that becomes subliminally 99 per cent likely that the accused was responsible for the hair and then in the next step, 99 per cent likely that he is guilty.  The first aspect of that fallacy is demonstrated very clearly in the Crown’s submissions.  I am not suggesting the Crown has got it wrong.  They have acknowledged the fallacy.  If you go to paragraph 6.2 in the Crown’s submissions, in a passage that we found very helpful, it is stated there:

Without proper explanation random match probability ratios may appear to signify the likelihood that the accused was the source of the DNA.  For example, a random match probability ratio of 1 in 90 billion is likely to be understood to mean that there is a 90 billion to 1 chance that the profile matches the accused.  However, even a random match probability of 1 in 1 trillion does not signify that the likelihood of finding another person with the same profile is effectively impossible, for the probability that others share such a profile can be calculated to be about 1 in 182.

So, with respect, that demonstrates the point that there can be a vast difference between the two propositions - 99.9 per cent likely that persons in the community would not match does not equate in any way, shape or form to a proposition that it is 99.9 per cent likely that the accused – that it is the accused’s hair.

FRENCH CJ:   You can get to the prosecutor’s fallacy from the random frequency ratio, too, can you not?  That was The People v Collins, was it not?

MR ODGERS:   Yes, of course, but the point was in that case the jury were encouraged to – and, of course, just so we are very clear, no complaint was made in this case that the Crown or the judge had invited the prosecutor’s fallacy.  No one had made the mistake themselves.  The argument that is being advanced before your Honours now is that there is a greater risk that the jury will engage in that fallacious reasoning.  We say that that is confirmed by the literature.

FRENCH CJ:   Because if you know it is 1 in 1600 that may lead you to think, well that means 2 in 3200 and so forth.  That is the sort of reasoning which you do not want them to be distracted from, as it were.

MR ODGERS:   Quite, that is exactly the point.  Your Honours, again given the qualifications of literature one has to be careful but, we say, the Crown’s own article which they have relied on, an article by Kaye and others, and I am reluctant to go – perhaps I will – your Honours will have it.  It may be appropriate in reply for me to say something about it but at this stage all I am going to say about that article is, it, we say, strongly confirms that there is a substantially increased risk of the prosecutor’s fallacy with exclusion percentage evidence as compared with random occurrence ratio evidence.

Indeed, the article in one experiment showed that up to 50 per cent of jurors who were given the frequency - the exclusion percentage evidence, made the – engaged in the fallacy.  The authors then, sort of, discounted it by various reasons down to about 16 per cent, but the fact of the matter is it demonstrated, with respect, very clearly, that there was a much greater risk of the prosecutor’s fallacy being engaged in by the jury when it is presented in terms of exclusion percentages – or percentages, I should say, than compared with a random occurrence ratio.

BELL J:   Can I just take up with you something about the extent to which that risk might be thought to have been presented in the way this trial was conducted?  It was Ms Pineda’s evidence that involved the use of the exclusion percentage, as I understand it.  The impression I have from the Crown Prosecutor’s closing address and from the judge’s summary of this evidence was that the two other experts were relied upon somewhat more heavily for the statistical explanation of the significance of the profile.

In that context, when one looks at some of the things that were put to the jury by the Crown in address at appeal book 1211 starting at line 34, the Crown Prosecutor had referred to the rather stronger DNA evidence respecting the finding of Mr Tunc’s DNA on the neck of the deceased.  In that context, he went on to say:

The best that the prosecution can come up with on DNA in relation to that hair is somewhere between 1 in 50 or 1 in 100 –

and on it went.  Then, that was a flourish at the beginning but, nonetheless, what was being put by the Crown, as I read the Crown’s address, was consistently, the Crown acknowledges, we do not get any better than 1 in 50, 1 in 100.  But you look at that as an item of circumstantial evidence with all the other items of circumstantial evidence. 

So true enough it is Ms Pineda had referred to the exclusion percentage on two occasions in‑chief, but it does not appear that forensic use was made of that.  I draw these matters to your attention to inquire if you are successful in the contention that the trial judge ought have excluded the evidence of Ms Pineda respecting exclusion percentage, would you have some difficulty establishing it was a substantial miscarriage of justice having regard to the way the issues were presented?

MR ODGERS:   I fully appreciate that point and I will respond to it briefly now and perhaps a little bit more strongly in due course.  We have said in our submissions - made the point that the Crown to this point has not raised the proviso and we have not been given an opportunity to respond to that in writing.  So that, in a sense, it is something we have put to one side.

BELL J:   I see, all right.

MR ODGERS:   But the more comprehensive answer or, perhaps, a more direct answer to your Honour is this, that it is true.  The Crown Prosecutor wanted to get the evidence of 99.9 in.  It was objected to, but he wanted it in.  But then he kept away from it in his final address and the defence counsel pretty much kept away from it too.  We do, however, make the point that the trial judge did not and I will be taking you almost immediately to the summing‑up for two reasons:  one, to provide an answer to your Honour to say that what the judge said actually, in the circumstances of this case, created a problem or it certainly did not cure any risk of unfair prejudice, which is the first point, and, secondly, created more problems that addressed the kinds of issues your Honour is raising with me.  So even though the Crown Prosecutor had not said much about it at all the trial judge did and in a way that we say enhanced the problems.

BELL J:   What I am really taking up with you is any reference later to the 99 per cent figure as another way of expressing it in a context where one has had an address that has placed emphasis on the “This is a 1 in 50 within a confined community” and there is also quite a degree of emphasis on the number of Turkish visitors that the deceased was likely to have attend at her home.  To take us to evidence of – not to evidence - to take us to literature referring to mock juries and how they respond to evidence presented in particular ways just seems somewhat far removed from the issues that would have been to the forefront.

MR ODGERS:   I understand the logic of what your Honour says to me, but at the end of the day that question is really, I think, at the end of the summing‑up what dangers existed, were there any real dangers is a question which your Honours have to contemplate, although strictly speaking only in the context of the proviso.  But I will come to that.  I will come to it straightaway because I will take your Honours to the summing‑up at appeal book 3, page 1300.

Before I turn to this particular page, I think your Honours appreciate that it was the trial judge himself who, in the evidence and when witnesses were in the witness box, brought the jury back to or brought in references to percentages and so on because even when you had the defence expert and other prosecution experts he was asking questions about the relative ratios and the percentages and he, with respect, we would say, was more of a problem – if I might use that rather loose language – than the Crown Prosecutor.  I know that is not satisfactory but we say that certainly his summing‑up did not help.  At the bottom of 1300, your Honours will see that he referred to:

the opinion of Ms Pineda . . . 1 in 1600 people.  Putting it another way, 99.99% -

Your Honours appreciate, I suspect, that in fact that was inaccurate.  It was not 99.99 – it was 99.9.  It was unfortunate that his Honour repeatedly used the 99.99, but there it is:

could be excluded as possibly having this profile.

Well, that is not strictly correct.  It was more would be expected to be excluded but that is not something I need to emphasise.  Then, 1302, over the page at line 28, he again repeated the same evidence.

looking at it from the reverse perspective, you would not expect it in 99.99% of people.

Now, the judge did not outline how the statistical estimates were arrived at or repeat any of the evidence which undermined the apparent precision of those estimates.  The jury did not receive a warning that the question of proof beyond reasonable doubt is not a mathematical exercise or caution against adopting the statistical evidence as an expression of percentages of guilt.  It did not do any of that.

HEYDON J:   But did anyone invite the judge to withdraw parts of his summing‑up.

MR ODGERS:   No.

HEYDON J:   Or invite a curative direction or a warning.

MR ODGERS:   No, your Honour.  I do not have a ground of appeal that the judge’s summing‑up was wrong.  It is more relevant to the question of whether or not – two questions:  one, did anything he say cure or reduce the risk of unfair prejudice that was present and, of course, it also responds to the question that Justice Bell has raised about was there, in this particular case, a particular risk of miscarriage of justice?  So I am merely pointing out aspects of the summing‑up – what was in it and what was not in it – which bear on both of those questions.

As I have said, the judge did not warn against falling into the prosecutor’s fallacy.  The judge did not give any direction which highlighted the number of other members of the population who would share the profile which was the kind of direction which was suggested to be an appropriate one in Doheny.

At the bottom of 1301 and the top of 1302, his Honour did state that the evidence could not establish with certainty that the hair was the appellant’s.  So, to that extent, we concede that his Honour, in a sense, reminded the jury of what the Crown Prosecutor had said, although not perhaps in the same way that your Honour Justice Bell took me to, but then if you go to 1302, line 32, he says, referring to the evidence relating to Turkish people:

in at least 98% of Turkish people.

I might mention, your Honours, that that was never given in evidence.  His Honour was the one who first used that formulation – 98 per cent.

FRENCH CJ:   That is 49 over 50 by 100.

MR ODGERS:   Yes, quite.  Well, to be fair to his Honour, your Honour, there was a reference to 2 per cent so it has gone from an inclusion percentage to an exclusion percentage.  But then his Honour says:

Of course, the less likely the expectation of finding the same profile in other people in the population, the more value the evidence has in establishing the probability that the hair came from the accused. 

That, we say, might have suggested to the jury that the exclusion percentage evidence was to be preferred or given more weight.  Then at line 40 his Honour actually invited the jury to choose between the evidence of Ms Pineda on the one hand and the evidence of Professor Balding and Dr Buckleton on the other which was, with respect, somewhat misleading because there was no direct contest between the evidence of Ms Pineda and the remaining experts in relation to the different frequency for the Turkish population. 

Our submission, in essence, is that really, coming to the final point, that the exclusion percentage in the evidence in this case had minimal probative value in the light of the admission of the 1 in 1600 frequency ratio evidence.  It could not in any significant way rationally add anything to the jury’s assessment of the probability of the appellant’s guilt.  We say that there was a real danger, risk of unfair prejudice in the various ways that we have articulated it. 

We say that it follows that the probative value of the evidence was on that analysis clearly outweighed by the danger of unfair prejudice and it had to be excluded pursuant to 137 and the trial judge erred in not excluding it.  We say that nothing that the trial judge said in the summing‑up reduced the danger of unfair prejudice, and we go further and say in response to Justice Bell that what he said did give some emphasis to the 99.9 per cent evidence – even though it was wrongly formulated – and that risks of fallacious reasoning, even with the fact that it is also in the context of 1 in 1600 cannot be diminished, cannot be said to be non-existent, such that bearing in mind that this evidence was not the one in a million type case or the one in a billion type case, there were a significant number of alternative ‑ ‑ ‑

FRENCH CJ:   Does it bear on the question of unfair – does the answer to this question bear on the issue of unfair prejudice, that is, could the prosecutor have been prevented – absent evidence of the exclusion percentage, just the random frequency ratio – could the prosecutor have been prevented from, as a matter of argument, saying that this is an exclusion percentage of 99.937 per cent?

MR ODGERS:   We would say he could, because in a sense we are saying that becomes a form of evidence.

FRENCH CJ:   A form of argument, is it not - 1599 over 1600 times 100.

MR ODGERS:   I see that, your Honour.  Perhaps the answer might be that in those circumstances the judge would need to give some very careful directions to meet the problems that are thereby created.  But if the judge had ruled that the evidence could not be admitted, it would be a ‑ ‑ ‑

FRENCH CJ:   I am looking at the hypothesis.  The evidence was never there, just put as a matter of argument by the prosecutor, could you prevent the prosecutor from putting it as a matter of argument or would it be a matter for the judge just giving a warning.  It just then feeds back into the question of assessment of unfair prejudice, I suppose, accepting that the evidence comes from an expert witness which perhaps puts it in a different category.

MR ODGERS:   Yes, yes.

CRENNAN J:   Do your arguments also pick up an inclusion percentage?

MR ODGERS:   Yes.  We say that percentages have the same risks generally, have the kinds of risks that Mr Ligertwood pointed to generally and it is, a fortiori, where it is an exclusion percentage because of the risk of going from 99.99 per cent to, you know, very, very likely that it was the accused who was responsible for the hair, fallacious reasoning, and then very – almost inevitably the case that he is guilty.  It becomes worse with exclusion percentages, so that is our argument.

HAYNE J:   Does not that argument reveal that the centre of the complaint is that the jury is not armed with sufficient information about how the jury may properly use the statistical expressions given in evidence?

MR ODGERS:   Yes.

HAYNE J:   Now, that is an argument about sufficiency of direction ‑ ‑ ‑

MR ODGERS:   Yes, but ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ not a question about admissibility.

MR ODGERS:   Well, can I say this?  It would be theoretically possible that one could contemplate a situation in which if a judge was very careful and directions were given that might be held to exclude dangers with presenting it in percentage terms – perhaps I am not answering your Honour, but my submission would be that given what we would say is common sense, confirmed by the literature that there are risks with presenting it in percentage terms which are sufficient to conclude that the evidence should be excluded under 137 regardless of the possibility of directions, and that if it is admitted then the question becomes – the miscarriage risk – has anything the judge said effectively cured the problems?  That is my answer to your Honour.

HAYNE J:   Yes.

MR ODGERS:   May it please the Court.

FRENCH CJ:   Thank you, Mr Odgers.  Yes, Mr Arnott.

MR ARNOTT:   Thank you, your Honour.  Your Honours, going to the written propositions that we provided to you today, paragraphs 1 and 2 go to the context in which this evidence was led and the fact that the exclusion percentages were briefly mentioned three times only in the evidence of Ms Pineda and also Dr Buckleton.  The appellant acknowledges that the reference to the 99 exclusive percentage figure was referred to only briefly in the evidence and in circumstances as your Honour the Chief Justice noted that the jury were told that it meant exactly the same thing as the frequency ratio.

Neither counsel in their final address referred to it.  Justice Bell has referred to that passage in the Crown Prosecutor’s address towards the end of the prosecutor’s address in appeal book 3 at 1239.  He concluded by saying at line 6 – or starting at line 5:

But whatever your view about it is –

This is a reference to the DNA evidence –

that it’s just another strand and whatever it view you take of that, the Crown submits it’s certainly not an essential matter in the Crown case –

Further down, midway between lines 15 and 20:

The Crown case does not depend on this hair.

BELL J:   What are those submissions going to, Mr Crown, if the evidence was wrongly admitted at the point when objection was taken by defence counsel?

MR ARNOTT:   Given the submission, given the concession by the appellant that the evidence was probative, although as the appellant submits had minimal probative value, this goes to the question of unfairness.  Was it outweighed by unfair prejudice?  The items that I am taking you to now are the items in which we say demonstrate that, in fact, there was no prejudice at all, the first matter being the context in which this evidence was given.

Can I go to point 3, with my propositions?  The appellant draws support, as did the Chief Judge at Common Law in the Court of Criminal  Appeal, from the extensive writings of Professor Koehler.  We do not accept Professor Koehler, except to the extent that we acknowledge that there are some formulations, which may be more persuasive than others.

There are some writings, which I will come to very shortly, which question the method in which Professor Koehler arrives at some of his conclusions.  But accepting for the moment his writings on the subject and his “exemplar cueing theory” 99 per cent was not presented as a bare statistic and using Professor Koehler’s language other formulations were cued.  Professor Koehler himself acknowledges that 1 in 1600 who would be expected to share the same profile has a psychological impact which is less persuasive than exclusive percentage formulations because it conjures up thoughts of a match.

FRENCH CJ:   When you say “conjures up thoughts” they are not imaginary thoughts in the sense that they say something about the reality of the figures.

MR ARNOTT:   That is right.  It is a psychological factor that a juror, when sitting there, can associate and think of a match when they are sitting there listening to the evidence.

HAYNE J:   What directs their attention to consideration of the relevant population, that is are we concerned to apply these numbers to the population of Australia at large?  Maybe that does seem rather unusual to treat 21 million people as the available people who might have committed this crime?  Is the relevant population a smaller group?  How big is that population?

MR ARNOTT:   Yes, another ‑ ‑ ‑

HAYNE J:   But it is setting them on a path of reasoning which may be relevant to the task they have to undertake.

MR ARNOTT:   Yes.  Following Professor Koehler’s theories a football stadium was one to which brings to a jury’s mind coincidental matches more readily than the broad population.  For example, one of those was given by Ms Pineda in appeal book No 1 at page 338, starting at line 5:

Q.The one in 1,600.  So if you say one in 1,600– If you have a football stadium with [16,000] people in it on any given day, on that statistic, on average, there would be 10 people in that stadium who would have identical mitochondrial DNA to Mr Aytugrul?

A.Theoretically, yes.

Q.But that is an average?

A.Correct.

Q.So, on one day, with 16,000 people in the football stadium, you might have 100 people with the same mitochondrial DNA as Mr Aytugrul.

In other words, that is drawing attention to the match, something that Professor Koehler refers to in his article, if I could take your Honours to it.  If the need really arises to take you to it, it is at page 1283, at the top of the page:

To illustrate, suppose a juror hears that there is a one in one hundred thousand chance that a defendant who is not the source of the genetic evidence would match by coincidence.  The juror will probably not give much thought to the possibility that the match was a coincidence because one in one hundred thousand is very close to zero.  This might constitute overwhelming proof of identity in the juror’s mind.  Now consider a juror who hears that one in every one hundred thousand people in, say, Houston who are not the source will match coincidentally.  This juror may reason as follows:  “If one in every one hundred thousand people in Houston match, then dozens of people from Houston would match, as would thousands of others throughout the U.S.  For this reason, I do not find the evidence convincing as proof of identity.”

In other words, he says, as he says in the next line of the next paragraph –

I will refer to the difference between these two approaches as a difference in “target.” –

If increasing the numerator, that is, for example, 1 in 100 for argument’s sake, to 2 in 100, or 2 in the 10,000 in the football stadium also encourages thoughts of other matches and averts attention away from the general population, the 2 in 100, for example, was given at appeal book 3 by Dr Buckleton at page 1137, line 21:

Q.That means that it is likely to appear in 2 of every 100 of people?

A.Of the same group as Mr Aytugrul.  If you pop out to the other people outside of the sub group you pop back to the numbers I have got.

The 2 of 10,000 in the football stadium, which is combining quite a number of these cues, is to be found at appeal book No 2 at 851 in the evidence of Dr Balding.  At line 27 the question starts:

So we have a football stadium of two Turkish teams playing each other in football and ten thousand people attend, within that football stadium of ten thousand people there in your view would be on average two hundred people who have the same mitochondrial DNA profile as Mr Yusuf Aytugrul?
A.       That is right, yes, that is correct.  In 10,000 individuals the number having this profile could be as high as 200 although, as I said several times, I regard that as a conservative estimate.  That is not a true value.  A true value – 

that should probably read be less –

than 200.  200 would be a safe upper boundary.

So the point I make is that even embracing Professor Koehler’s cue theory, there were a number of other powerful cues focusing the mind of the jurors on matches with which they could readily identify. 

FRENCH CJ:   So that is to say that the exclusion percentage would be unlikely to distract them from those cues?

MR ARNOTT:   That is my submission, but that is not the only matter.  I firstly referred to the context in which the evidence arose.  Secondly, I am dealing with the theoretical basis behind which Mr Odgers advances his submission to this Court.  But there is more.  There was no risk in this context where the random match was said to be as low as 1 in 50, and I have given the reference there in the propositions that your Honours have before you, of there being a danger that the jury would think there were no other possible matches, notwithstanding passing reference to the exclusion figure.  We draw a distinction between the case of GK, to which reference has been made in the written submissions, because there the bare percentage figure was combined with other very high numbers. 

Now, I know my friend will prickle at this submission, but the appellant’s complaint is not really about percentage formulation, in our submission, but it is about very high numbers, for example, one in 90 billion.  It is the high numbers which possibly have this subliminal effect, not the exclusion percentages expression.  Percentage quantifications of themselves, in our submission, do not have a greater subliminal impact than other formulations with high numbers relevant to subliminal impacts of such things as the figures themselves, the explanations provided about the figures, what they mean and other formulations used. 

Without taking your Honours to the references there which I have in propositions relating to what President Mason said in GK, which was adopted by Chief Justice Doyle in Karger, your Honours will remember the five propositions set out there which are taken from the New South Wales case of Lisoff which effectively emphasised the trust that the court should place in juries to obey directions and understand the material and not to intellectually underestimate their capacities. 

BELL J:   Some of the submissions that you have just made brings one back to the way in which this matter was addressed at trial.  You have submitted that because of the low numbers in terms of the random chance, the cases to be distinguished from GK, as I understand it, Mr Odgers’ contention is there is a deal of psychological research which would suggest that low numbers can be even more damaging in terms of an invitation to fallacious reasoning than high numbers.  That may or may not be right.  One thing is clear and that is that the judge was not presented with any material to enable him to resolve that issue that seems to me to be presented in the differing submissions that we have heard today on the point.

MR ARNOTT:   The difficulty is that, as your Honour Justice Bell points out, the psychological material, the psychological writings were not brought to the attention of the trial judge.  Nor was this matter raised in the Court of Criminal Appeal but, nonetheless, we are dealing with it now, of course.

BELL J:   You commenced your submissions - Mr Crown, I do not intend to be critical but telling us the Crown did not accept Professor Koehler.  I am not quite sure what this Court is meant to do with a conflict about some material in the literature that is not in evidence.

MR ARNOTT:   There is extensive material.  You can imagine the hours we have spent researching various articles.  There is criticism of some of the approach of Professor Koehler, one of which I will take you to in a moment.  Another is the fact that mock juries – some of the studies involve mock juries rather than a real life jury situation where jurors have the benefit of cross‑examination with the witnesses in front of them in the live situation, the advantage of addresses by both counsel.  These are factors which are not – do not find their way into much of the Professor Koehler material.  So they are some of the limitations.

HAYNE J:   But the immediate task in which we are engaged is an assessment of whether section 137 of the Act should have been engaged.  What do you say about whether it is relevant, permissible, sensible to consider literature of the kind to which reference is made in determining that question?  Are the courts to determine the 137 question?  Is this Court to determine the 137 question saying that we pay no attention to literature of this kind?  What are we to do?

MR ARNOTT:   Our submission is if you play the same game as the appellant by referring to this literature we say, nonetheless, using that material in the circumstances of this case there was no miscarriage of justice.  Because the Chief Judge has raised this material and it is there that it would be appropriate to deal with the matter in that way.  Can I just ‑ ‑ ‑

FRENCH CJ:   One obvious problem with exclusion of percentages it seems to me is that they mask significantly different random frequency ratios.  From a jury’s point of view you get exclusion percentages in the very high 90s, whether you are talking about 1 in 50 in the Turkish sub‑population or 1 in 1600 in the general population.

MR ARNOTT:   Yes.  Your Honour, our submission is this.  We do not ask this Court to place its imprimatur upon the use of exclusion statistics.  Our submission is that in the circumstances of this case there was no miscarriage.  I do not know if my friend has said ‑ ‑ ‑

FRENCH CJ:   You accept, do I take it, that a jury can misuse exclusion percentages in the way that Mr Odgers has propounded, but that in the circumstances of this case that risk did not engage section 137?

MR ARNOTT:   Precisely, precisely.

FRENCH CJ:   What are the particular circumstances that lead you to say that that risk did not engage 137?

MR ARNOTT:   Apart from the matters that I have referred to if I can mention my next point, which appears in these propositions which says that Professor Koehler did not assess whether the cue sparked by exclusion percentages could be ameliorated by an expression of a frequency ratio.  Could I take your Honours very quickly to this article which is called Gold Versus Platinum, which is referred to there?

FRENCH CJ:   This is at a level of generality.  This is not rooted, as it were, in the circumstances of this case?

MR ARNOTT:   Well, it is because both the frequency ratio and the exclusion percentage was given.  The conclusion or the submission I am going to make after taking your Honours to this is that Professor Koehler has not measured that situation.  What he has measured is a set of people being given exclusion percentages and another group being given frequency, not the one group being given the both.  So that is one of the shortcomings of the Professor Koehler material. 

I need probably only to take you to page 46, the top paragraph there.  This is an article written in 2008 where the authors say, four lines down:

There is a risk, however, that once jurors are persuaded by the small percentage statistic, they could be unaffected by the ratio.  Koehler did not attempt to provide jurors with both statistics to see whether having the statistic transformed affected verdict choices.

I do not know that the conclusions in fact of this particular study are that satisfactory.  The next page I would direct your Honours to is page 52.  What happened in this study was that there was evidence led concerning the reliability of the basis of the data and you will see the second paragraph there starting “Additionally”. 

Could I take your Honours to another matter, but nonetheless, in answer to your Honour the Chief Justice’s way in which you have directed me, my thoughts and submissions?  In their written reply the appellants at paragraph 8, and I do not ask you to turn up their written submissions, but they refer to Professor Koehler’s study concerning mock jurors and the impact of the frequency of “0.1 out of 100 people” being more impressive than the identical formulation of 1 in 1000.  The frequency of 0.1 was not placed before the jury.  That was only referred to on the voir dire.  That is to be found in appeal book 1 at page 292.  Ms Pineda on the voir dire, your Honours will see between lines 15 and 20:

HIS HONOUR:   If the jury received evidence only in terms of that, of one in 1600, they could do this exercise for themselves.  They could say if it was one in a hundred, that is one per cent.  If one in thousand, that is .1 of per cent.  One in 1600 is less than .1 of a per cent.

I mention that because it may be a matter of linguistic seduction or psychological seduction but your Honours can see that 0.1 out of 100 people would be expected to match the profile is considerably more persuasive than one in 1000.

Indeed, Professor Koehler himself says that in his article at page 1303.  You will see there in that first full paragraph towards the end, perhaps starting a little further up, halfway down that paragraph:

The three formulations within each incidence rate were mathematically, but not psychologically, identical.  We predicted that the fractional numerators (0.1) would make it harder for people to think about others who might also match.  Indeed, the near-zero numerators might even suggest that no one else is likely to match (“0.1 out of ten thousand sounds a lot like no matches to me”).

The 0.1 was not placed before the jury.  Now, the Chief Judge referred to this as well.  In appeal book 4 at page 1891, he sets out six equally valid formulations.

HAYNE J:   Which paragraph?

MR ARNOTT:   Paragraph 86, and at paragraph 87, a little more than halfway down, he says:

Formulations 1, 3 and 4 were adopted in the course of the trial.

Now, if he is speaking about in the trial generally, including the voir dire, then he is perfectly accurate.  But if he is speaking about before the jury, he is inaccurate because, as I say, formulation 3, the 0.1, was not placed before the jury.  If I could go to my next proposition very briefly, there is a reference there to an article by Kaye, and I will not take your Honours to it.  I have given there the relevant page numbers, but it makes the point that what the literature refers to is the defence attorney’s fallacy has been found, in fact, to be as common as the prosecutor’s fallacy.  Now, as far as directions are concerned, our submission ‑ ‑ ‑

FRENCH CJ:   Can I just take it - is it oversimplifying your propositions to say that your submission on the literature is that it is contestable?

MR ARNOTT:   It is contestable, yes.

FRENCH CJ:   We should not draw any conclusions one way or the other from it.

MR ARNOTT:   I think some of the conclusions are, perhaps ‑ ‑ ‑

FRENCH CJ:   It depends which way they go, I suppose.

MR ARNOTT:   I think, possibly, follow as a matter of common sense.

FRENCH CJ:   Yes, putting it outside the realm of what one might intuit or use common sense to judge.

MR ARNOTT:   Yes.  Some we can see, such as 0.1, are linguistically attractive.  One can see that as a matter of common sense.  But to draw the conclusion, the firm conclusion as Professor Koehler does, that any reference, as it were, to exclusion percentages cannot be outweighed by other matters in the trial under other cues – psychological cues – other matters which happen in a trial, just does not follow.

CRENNAN J:   Would you accept that the conclusions in the literature, at least, indicate that directions given in relation to the presentation of DNA evidence need to be carefully done so as to ensure that the pitfalls which seem to be identified in the literature are avoided.

MR ARNOTT:   Yes.  In circumstances here, your Honour, where the frequency ratio was as low as 1 in 50 – we have gone to passages where the Crown Prosecutor placed weight on other evidence in the trial and really pushed this down to a minor aspect as we have seen.  There was no chance of the prosecutor’s fallacy arising here, in our submission.  As Justice Simpson said, the prosecutor’s fallacy does not arise in this case. 

Also, as to the strength of the DNA evidence, one needs to be reminded of some of the difficulties with it – and I do not want to go to the C‑stretch problem with the material – but that was one item which devalued the strength of that material.  As Justice Simpson noted – if we can go to the judgment of the Court of Criminal Appeal which is in appeal book 4 – and I wanted to conclude with some remarks about sections 135 and, particularly, 137, although I understand now that Mr Odgers does not rely upon 135, if I understood the exchange earlier.

HEYDON J:   My understanding is that he relies on it but only if the 137 argument fails.

MR ARNOTT:   Right.  At 1915, paragraph 171, Justice Simpson at about four lines down, notes that:

So far as I can glean, it was not contented that the evidence was, strictly, inadmissible. 

The appellant in this Court, as I understand it, does not say otherwise.  Their point is that it has minimal incremental value.

BELL J:   I think Mr Odgers’ point is that under 137, if the conclusion is reached that there exists the danger of unfair prejudice, and that is outweighed by the probative value of the evidence, the evidence is inadmissible.  It is not as though the judge has a discretion to nonetheless let it in. 

MR ARNOTT:   Yes.

BELL J:   Now, as I understand it, and correct me if I am wrong, your submissions thus far directed to at times what you contend was not a miscarriage of justice in the way the trial was run, have been directed to the proposition that at the point when the consideration of the admission of this evidence was made, over defence counsel’s objection, because it was evidence involving a relatively small – or to put it another way, high random chance, it did not have the danger of unfair prejudice that you have acknowledged might exist with exclusion percentage evidence with larger figures.  Is that a fair way of putting what ‑ ‑ ‑

MR ARNOTT:   It is, and in other circumstances than this trial, yes.

BELL J:   The matter I am just wanting to raise with you, quite a number of your submissions are directed to the trial that was had as distinct from a consideration of the admissibility of the evidence over objection, which is the central question.

MR ARNOTT:   Our submission is that the evidence was relevant and admissible in the first place.  One of the ways which – some of this argument has proceeded along the lines that 99.9 per cent conveys no information at all.  That is not right.

BELL J:   I think Mr Odgers’ point is it conveys no additional information, but carries with it the danger of unfair prejudice.

MR ARNOTT:   Yes, so that speaking of adding a minor incremental probative value, in our submission, is the wrong way of thinking of it, because you have the frequency ratio and the exclusion percentage ratio.  A better way of thinking about it is it provides combined information.  There are some jurors who in fact may find some mathematicians, for example, who may find the 98 per cent or the 99.9 per cent of more value to them in thinking about the matter.  There may be some who combine both the frequency and the exclusion percentage to provide information to them.

That was the point that Justice Simpson was making, so that although if one were to look at it in terms of additional information over and above the 1,600, although it arguably – and I do not concede this – might add only a little bit more probative value in circumstances where, in our submission, there was no prejudice, then you do not have a miscarriage of justice.

Now, they really are my submissions.  I have pointed out in my propositions and I do not want to labour the point that I do not know that Justice Simpson was really saying that either 135 or 137 cannot be used to control the manner of the presentation of evidence.  Indeed, there was a passage I noticed in ‑ ‑ ‑

BELL J:   I think it is clear from a passage in her Honour’s judgment that she is not saying that, where she refers to the discretion that the judge has.  It was a conclusion about the statement of the evidence in differing terms to express the same content that seemed to be the subject of her Honour’s analysis.

MR ARNOTT:   She accepts at the top of page 1917 that there is a general discretion.  I do not know that that is really a matter which features largely in this appeal.  They are my submissions.

FRENCH CJ:   Thank you, Mr Arnott.  Mr Odgers.

MR ODGERS:   Just in response to what was said.  We say that Justice Simpson inappropriately narrowed the scope of the operation of the discretion at 1916 going over to 1917 because, we say that her Honour - the only way we interpret what her Honour says in those passages is her Honour appears to take the view that 137 is simply not available to regulate the way in which evidence is expressed and that if it is the same content, then that is the end of the story, 137 does not apply and the rhetorical question at paragraph 177, her answer clearly is it cannot be unfairly prejudicial. 

We read her Honour, as I say, inappropriately narrowing the powers of a trial judge to control the way in which evidence is presented, particularly in cases of the sensitivity of DNA and statistical information where, on any view, there are risks and concerns about how any person who is not a statistician is going to respond to such information.  With respect, her Honour’s approach tends to not, we say - does not address that real problem.

We also submit that her Honour erred at 1922 in paragraph 198 when her Honour discerned nothing but suggested that the evidence, “framed as it was, was unduly or unfairly prejudicial”.  Her Honour did not engage in any way with the matters that were raised by Justice McClellan, and we say that the matters he raised at least indicated the possibility of a risk which needed to be addressed, and her Honour did not and we say she did not because her Honour appears to have taken an unduly narrow view to the operation of 137.

Justice Hayne’s question; we think that 1 in 1600 in Sydney is more than 3000 people.  That seems to be the numbers we have come up with.  My friend took your Honours to the cross‑examination of Ms Pineda where the football stadium evidence was led.  That was an attempt plainly by defence counsel to try to diffuse or reduce the unfair prejudicial impact of the exclusion percentage evidence.  As you would have read when you read 338, Ms Pineda significantly undercut the value of that evidence because she used responses like, theoretically, and on any day you might have no people in the stadium matching, so she undercut it.  More importantly, the judge did not remind the jury of that evidence.  No attempt was made by the judge to relate that example to the facts of this case.

The judge left the jury, at the end of the day, with you have got 1 in 1600 which means the same thing as 99.99, or rather the other way around, 99.99 per cent means the same thing as 1 in 1600 and we say that does not in any way reduce the obvious risk of the jury using the 99.99 as a shortcut to a conclusion that it is essentially inevitable that the accused, the appellant, left the hair and therefore inevitable that he must be guilty and engaging in that kind of fallacious reasoning which is clearly acknowledged to be a risk in some cases and we say was a risk in this case.  The 99.9 or 99.99 is in the same league of territory as the numbers that were in GK and JCG.  They were 99.9993 or whatever.  Justice Spigelman said 98 per cent creates real problems and we, with respect, endorse what his Honour said in that case. 

Lastly, we do not accept that there has been any significant challenge to the research of Mr Koehler and the conclusions he has drawn.  As I heard my friend, the only matter of substance in the literature which he suggested tended to contradict Mr Koehler was the Lieberman article, which he took you to, where he said that was an article where they looked at – a situation where you have both, a random occurrence ratio and an exclusion percentage, and he took you to page 52 of that Lieberman article.  He invited you to read it.  He did not read it.  He did not say anything about it. 

My reading of what that article concluded was that the fact that you give a random occurrence ratio as well as a percentage evidence did not reduce the rate of conviction.  It did not affect the rate of conviction that resulted from the percentage exclusion evidence.  It only reduced it in circumstances where there was also concerns about problems with the laboratory. So, if anything, with respect, that article confirms or highlights

that even if you have got both, you still have serious risks and they do not go away because you have got both. 

Indeed, my conclusion then, with respect, and again it is a response to Justice Bell, is that however the Crown sought to avoid emphasis of the 99.9, which they managed to get in over objection, the judge in his summing‑up left it at the end of the day to the jury in a way which, without carefully relating the learning on all of this to explain to the jury the dangers and the concerns and the care that they should take, he did not do any of that, with respect, he left them with the shortcut of 99.99 and the obvious dangers that flowed with it.

The last point, of course, with respect, the challenge is the evidence should have been excluded.  If the judge was wrong, he had made a wrong determination under section 6 of the Criminal Appeal Act, then the only remaining question is the operation of the proviso.  That has not been advanced.  We say the only conclusion must be that the appeal should be allowed and a new trial ordered.  May it please the Court.

FRENCH CJ:   Thank you, Mr Odgers.  The Court will reserve its decision.  The Court is adjourned until 2.15 this afternoon.

AT 12.30 PM THE MATTER WAS ADJOURNED