Aytugrul v The Queen

[2011] HCATrans 238

[2011] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S149 of 2011

B e t w e e n -

YUSUF AYTUGRUL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2011, AT 11.45 AM

Copyright in the High Court of Australia

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

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

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, firstly we require an extension of time.

FRENCH CJ:   Is that opposed, Mr Arnott?  No.  The extension is granted.

MR ODGERS:   Thank you, your Honour.  This application has general importance for the following reasons.  Firstly, the judgment of the Court of Criminal Appeal overturns a practice in New South Wales and other Australian criminal courts in respect of the presentation of statistical evidence in relation to DNA profiles.  Secondly, the judgment is a split decision where the dissenting member of the court, a senior and experienced judge, has identified a substantial body of empirically based literature that supports that practice.

FRENCH CJ:   Your focus is on the use of the exclusionary characterisation of the evidence?

MR ODGERS:   Correct, yes, what I will call the discretion to exclude evidence because the way in which it is presented, if I could put it in these terms ‑ ‑ ‑

FRENCH CJ:   I am talking about the exclusionary characterisation of the evidence, that is, that 99.9 per cent of people, et cetera, would not have ‑ ‑ ‑

MR ODGERS:   Yes, of course, I am sorry.  Yes, your Honour, the distinction between expressing it in terms of frequency is one in 1600, more in terms of percentages, 99.9 per cent of the population would not be expected to share that profile.  Yes, it is that distinction between the way of presenting the evidence.  Of course, there was no objection to it being presented in terms of frequencies.  The objection that was taken was to it being presented in terms of percentages.

We say that this case raises starkly the important question, does a trial judge in a criminal trial have a power to exclude evidence simply on the basis that the way in which it is presented is likely to have greater persuasive impact on the jury than if it is presented in another way.  Putting that proposition in a different way, may a trial judge exclude evidence simply on the basis that the way in which it is presented is likely to result in a jury giving the evidence more weight than it deserves.  Of course, if the judge has that power, should it be exercised to exclude the evidence on that basis.

Earlier judgments of the Court of Criminal Appeal, Galli, GK, had been understood to accept that a trial judge did have such a power and it had appropriately exercised in relation to statistical evidence relating to DNA.  That approach has been followed, so far as we understand it, in a number of jurisdictions other than New South Wales with the result that we are not aware of any case where, since those decisions, statistical evidence relating to DNA has been admitted in the form of percentages.  This judgment, the judgment of Justice Simpson ‑ ‑ ‑

CRENNAN J:   The real complaint is, is it not, that the exclusion percentages carry the risk that a jury may transpose them in some way into odds of guilt.

MR ODGERS:   There are a number of concerns and they are supported by the literature.  The first concern is that presenting it in that way may have an excessive subliminal impact.  That was a point that was made by Justice Sully in GK.  Another concern is a risk of rounding up, that you have 99.9 or 99.99 and there is a tendency for humans to engage in heuristic shortcuts where they round up to 100.  Another danger is what we would call the risk that it might encourage the jury to approach the whole question of proof in the wrong way.  The danger is that they will look at it in terms of percentage probabilities of guilt – this may be a response to what your Honour is putting to me – looking at it in terms of percentage probabilities of guilt rather than excluding the possibility that someone else was responsible for leaving the hair, for example, in this case.

It is not as simple as the way your Honour Justice Crennan puts it to me.  There are a number of concerns.  Those have been articulated in GK and Galli and other decisions.  They have been supported, we say, by the extensive body of literature that Justice McClellan referred to and, with respect, we submit that the result of this case is that the Court of Criminal Appeal has effectively disregarded those concerns about the potential impact of the evidence on a jury and required that there be something more, some special circumstances, particular risks of the prosecutor’s fallacy, for example, or the evidence being expressed in a way that is too complicated or more complicated to explain or particular dangers of oversimplification.  Justice Simpson appears to have approached the matter on the basis that the mere risk of the jury giving it more weight than it deserves is not a basis for exclusion under sections 135 or 137 or, indeed, an arguable basis for unfairness.  It is really that very precise narrow question which we say is perfectly raised by this case.

FRENCH CJ:   How was it put to the trial judge in terms of – was it just an argument about risk?

MR ODGERS:   At page 94 of the application book your Honour will find a relevant part of what was put by defence counsel.  Defence counsel in that extract on that page indicated that she was not objecting to frequency, one in 1600.  Then his Honour says:

HIS HONOUR:   But you object to 99.99 –

which, of course, was actually the 99.9, although funnily enough, he kept on using that term, we have noted.  Then she says –

DAVENPORT:   Because it has a connotation that is very different to the reality.

HIS HONOUR:   It means the same thing.

Which is, of course, a point that Justice Simpson came back to and the Crown ‑ ‑ ‑

FRENCH CJ:   What the trial judge is being invited to do is to make a kind of intuitive or common sense judgment about it, unaided by any of the literature that you are referring to.

MR ODGERS:   True, your Honour, but as I have said, GK and Galli had been understood, with good reason, to have effectively established a practice that when you have DNA evidence, it is appropriate to express the statistics in terms of frequencies, one in 1600, but not appropriate to express it in terms of percentages.  Then, of course, the defence counsel puts, really, the core of the argument:

DAVENPORT:   It may very well, your Honour, but it has a very different impact upon a jury’s consideration.

Which is really a summary form of the concerns that I put in response to Justice Crennan and which are articulated in GK and Galli and which Justice McClellan has indicated the literature supports.

CRENNAN J:   He has picked up the nub of the point, I think, Justice McClellan, at application book 97, paragraph 98:

the Crown should not have the advantage of the “subliminal impact” of statistics to enhance the probative value of the evidence.  To do so may come at the cost of a fair trial –

That is really the nub of ‑ ‑ ‑

MR ODGERS:   Absolutely, that is the nub of it, and we say that Justice Simpson does not seem to have grappled with that point.  In her judgment, she makes no reference – she is clearly responding to what Justice McClellan has written.  She does not, with respect, refer to any of that literature.  She says on at least one occasion that sections 135 and 137 are simply not available to exclude evidence because the way in which it is presented creates a risk of a jury giving the evidence too much weight and then says, well, there may be a general fairness discretion, but does not turn to consider it, which can only support a conclusion that her Honour saw no potential unfairness.

CRENNAN J:   Yes, 115 at the bottom of the page, she says:

Provided that what is contained in the formulations –

so whether it is a random occurrence rate or an exclusion percentage –

I see no reason to prefer one method of expression over another.

MR ODGERS:   Yes, your Honour, and similarly at 118, her Honour at paragraph 175 repeats the point that the trial judge had made, that:

The content of the evidence does not vary.

Then her Honour refers to 135 and 137, says:

Both sections are concerned with the content of the evidence, and not the manner in which it is expressed.

We take issue with that proposition.  Then says at paragraph 177:

How can evidence expressed in one way be such as not to attract the operation of s 135 or s 137 . . . but, when expressed in another way, become unfairly prejudicial?

That, of course, highlights the point.  Justice McClellan clearly indicated how.  Her Honour has asked the question and the answer seems to be she thinks that it simply cannot be.  That is a very important question, we say, one of general importance which is raised fairly and squarely by this case.  Your Honours, it is a matter of importance in this particular case and it is a suitable vehicle because this was a case where the DNA evidence ‑ ‑ ‑

FRENCH CJ:   Everything else was circumstantial.

MR ODGERS:   Quite, yes, and also, of course, the actual statistics were not overwhelming.  Because it is mitochondrial DNA, the numbers are relatively small and therefore we are not talking billions where it really does not make much difference how you present it.  Indeed, we would go on and say, your Honours, that the chance that the hair came from a different person, particularly from the Turkish community, was far from speculative or theoretical and that supports the conclusion that DNA evidence could not remove the doubts that arose from the other circumstantial evidence.  For that reason, we also seek special leave on the question whether the verdict was unreasonable.  If I start to talk about the details of the case, it would be overwhelming because, as your Honours have appreciated, there is a lot of material there.  I think I have to just essentially rely on what we put in the written submissions about that aspect of the application.  I am not sure that there is much more usefully I can add.  Those are my submissions, your Honours.

FRENCH CJ:   Thank you, Mr Odgers.  Yes, Mr Arnott, I think we would really just need to hear from you in relation to the matter that Mr Odgers has addressed rather than the unreasonableness of the verdict point.

MR ARNOTT:   Certainly, your Honour, yes.  The issue there is whether the use of the percentage method transposed into thinking in – the jury in terms of percentage probabilities.  That was despite counsel for the applicant in the CCA not being able to inform the court of the unfairness of the method.  It was notwithstanding also, if your Honours look at page 93 of the application book in the judgment of the Chief Justice, it being expressed in a number of ways.  It was expressed to the jury in all ways except 2 and 6.  The fifth one there was expressed in terms of a football stadium example so that the jury had not just simply the percentage expression that was used but also examples that they could work with to understand.

FRENCH CJ:   The problem is, I suppose, assuming for the sake of the argument that there is a risk that people will read the, as it were, exclusion percentage approach in a way that equates to the odds of guilt in a case which otherwise turns very much upon circumstantial evidence, then one becomes quite concerned about where there is a little tipping point affected by that risk.

MR ARNOTT:   Yes.  That needs to be considered in the backdrop of warnings which are given to the jury, which were given in this case.  That material ‑ ‑ ‑

FRENCH CJ:   Which particular warning are you referring to?

MR ARNOTT:   The warnings in terms of – they are really set out in the judgment of her Honour Justice Simpson where she refers to the ways in which the experts expressed it.

FRENCH CJ:   This is 115, is it, at 164?

MR ARNOTT:   That is right.  It also needs to ‑ ‑ ‑

FRENCH CJ:   I thought you were going to direct us to some warnings that the trial judge gave to the jury.

MR ARNOTT:   I am sorry, your Honour.  I should have had a notation of the page, if I might just try and bring you back to that later.  I am sorry, I do not quickly have that at hand.  But it also needs to be in the backdrop of the fact that the case of GK and others, where a case where the scientific material was actually inaccurately expressed, Justice Simpson, at page 119 of the application book, did not suggest that a trial judge does not have a discretion in this matter where the manner in which the evidence is expressed could lead to unfairness.  So it is not strictly an interpretation of sections 135 or 137.  But in the circumstances of this case in particular, our submission is that the issue does not warrant special leave.

FRENCH CJ:   The trial judge – I am looking at page 32 of the application book, line 20:

At one end, you have Ms Pineda’s evidence that such a profile can be expected to be found in 1 in 1600 people or, looking at it from the reverse perspective, you would not expect it in 99.99% of people.  At the other end –

et cetera.  There does not seem to be any warning against inferring odds of guilt.

MR ARNOTT:   Page 31 of the application book.

FRENCH CJ:   I am sorry, yes.

MR ARNOTT:   Line 50:

When you are considering the evidence of these experts, you should bear in mind that none of them are saying that the hair found on Ms Bayrak’s right thumb is in fact the accused’s.  None of them are saying that the mitochondrial DNA profile found in the hair establishes that it definitely came from him.

FRENCH CJ:   The risk is whether the jury, I suppose, would read or reflect upon 99.99 per cent of people excluded from this as suggesting that there is a 99 per cent probability that it says ‑ ‑ ‑

MR ARNOTT:   Yes.  The submission that the decision in this case was contrary to what has flown before, in our submission, is not right at all.  As I said a moment ago, GK dealt with wrong scientific information being put, that is, the likelihood of the stepdaughter in that case being GK’s child.  That is not what happened in this case.  There is also the fact that the jury are able to do the arithmetical calculations for themselves and if they did that, one would never know about it and no complaint could ever be made.  One would think, in my submission, that it would be better to be upfront, as it were, put the calculations that can be done and to explain it in the way which was done in this case.

Could I just say this, your Honour, that the circumstantial case – and I do not plan to speak about the second point or the second ground only to say this – to say that it was merely a circumstantial case is to make light of the significant circumstantial evidence that there was, ultimately, the experts who gave evidence in the case, whatever formulation they expressed, the material, were of the view that it was very rare that the mitochondrial DNA of the applicant in this case was found, was a rare event.  They are my submissions.

FRENCH CJ:   Yes, thank you, Mr Arnott.  Mr Odgers, we would grant special leave but limited to the DNA question, that is to say, on only the first ground, ground 2.1 of your draft notice of appeal.

MR ODGERS:   I understand that, yes, your Honour.

FRENCH CJ:   Yes, all right.  I expect that this would take, what, half a day?

MR ODGERS:   Half a day sounds realistic.

FRENCH CJ:   Yes.  Do you agree with that, Mr Arnott?

MR ARNOTT:   Yes, your Honour.

FRENCH CJ:   Yes, all right.  Thank you.

AT 12.05 PM THE MATTER WAS CONCLUDED