Bropho v The State of Western Australia [No 2]
[2009] WASCA 94
•29 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROPHO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2009] WASCA 94
CORAM: MARTIN CJ
OWEN JA
MILLER JA
HEARD: 19 MARCH 2008
DELIVERED : 29 MAY 2009
FILE NO/S: CACR 38 of 2008
BETWEEN: ROBERT CHARLES BROPHO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 45 of 2008
BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ROBERT CHARLES BROPHO
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :NISBET DCJ
Citation :THE STATE OF WESTERN AUSTRALIA -v- BROPHO [2008] WADC 30
File No :IND 1689 of 2003
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
Citation :BROPHO -v- THE STATE OF WESTERN AUSTRALIA [2007] WADC 77
File No :IND 1689 of 2003
Catchwords:
Criminal law - Trial by judge alone - Relevance of DNA paternity evidence - Whether paternity index used by expert witness reliable - Whether trial judge considered DNA paternity evidence together with all other evidence - Whether trial judge adequately set out reasons for judgment - Whether trial judge adequately dealt with evidence of expert called by appellant - Whether miscarriage of justice
Criminal law and procedure - Expert evidence - Extent of necessary expertise to express opinions generally
Criminal law - sentence - Five counts of unlawful carnal knowledge of a child under the age of 13 years - Aggregate sentence of 3 years' imprisonment - All sentences ordered to be served concurrently - Whether age and health of respondent justified conclusion in relation to concurrency - Whether aggregate sentence manifestly inadequate
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code, s 185(1) (repealed)
Criminal Procedure Act 2004 (WA), s 98(2), s 118, s 119, s 120
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), s 3
Result:
CACR 38 of 2008
Appeal dismissed
CACR 45 of 2008
Appeal allowed
Sentence increased to 6 years' imprisonment
Category: B
Representation:
CACR 38 of 2008
Counsel:
Appellant: Mr S A Walker
Respondent: Mr B Fiannaca SC & Mr L M Fox
Solicitors:
Appellant: Kim Farmer
Respondent: Director of Public Prosecutions (WA)
CACR 45 of 2008
Counsel:
Appellant: Mr B Fiannaca SC & Mr L M Fox
Respondent: Mr S A Walker
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Kim Farmer
Case(s) referred to in judgment(s):
Bropho v The State of Western Australia [2007] WADC 77
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Edwards v The Queen (1993) 178 CLR 193
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Gipp v The Queen (1998) 194 CLR 16
Hillstead v The Queen [2005] WASCA 116
HML v The Queen [2008] HCA 16
Jarvis v The Queen (1993) 20 WAR 201
Longman v The Queen (1989) 168 CLR 79
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
S v The Queen (1989) 168 CLR 266
Smith v The Queen (Unreported, WACCA, Library No 940285, 2 May 1994)
The State of Western Australia v Bropho [2008] WADC 30
The State of Western Australia v Henderson [2005] WASCA 89
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v Richards [2008] WASCA 134
Zoneff v The Queen (2000) 200 CLR 234; (2000) 72 ALR 1
MARTIN CJ: I agree with Miller JA.
OWEN JA: I agree with Miller JA that the appeal against conviction should be dismissed and the appeal against sentence allowed. I also agree that the appellant should be resentenced to a term of 6 years' immediate imprisonment structured in the way set out in the conclusion to Miller JA's reasons.
MILLER JA: The appellant in CACR 38 of 2008 appeals against his conviction by Nisbet DCJ in the District Court at Fremantle for five counts of unlawful carnal knowledge of a child under the age of 13 years, contrary to s 185 of the Criminal Code (WA). See The State of Western Australia v Bropho [2008] WADC 30. The appellant in appeal CACR 45 of 2008 appeals against the aggregate sentence imposed upon the respondent after his conviction for those offences. It is contended that the aggregate sentence of 3 years' imprisonment was manifestly inadequate.
Conviction appeal - CACR 38 of 2008
The appellant was charged on indictment with seven counts of having unlawful carnal knowledge of a child under the age of 13 years. The offences were alleged to have occurred between 23 March 1990 and 23 July 1991. They were variously alleged to have occurred at Guildford or Eden Hill. Each offence was alleged to have constituted an offence under s 185(1) of the Criminal Code. This provision was contained within the Criminal Code at the time of the commission of the alleged offences, but it has since been repealed by No 14 of 1992 s 6(2).
At the relevant time, s 185(1) of the Criminal Code read:
Any person who has unlawful carnal knowledge of a child under the age of 13 years is guilty of a crime and is liable to imprisonment of 20 years.
The appellant pleaded not guilty to the indictment and was tried before a judge alone (Nisbet DCJ). On 28 February 2008 he was found guilty of five of the seven counts on the indictment.
Prior to the appellant's trial before Nisbet DCJ, there was an application before Goetze DCJ in relation to expert evidence. The respondent applied for an order that evidence of Dr Brian McDonald, which was intended to be adduced by the appellant at his trial, be ruled inadmissible. Pursuant to s 98(2) of the Criminal Procedure Act 2004 (WA), at any time before the trial of an accused person the court may determine any question of law or procedure or give any direction that it is
necessary or convenient to do in order to facilitate the conduct of the trial. It was pursuant to this provision that Goetze DCJ determined the issue of the admissibility of Dr McDonald's evidence. His Honour ordered that Dr McDonald not be permitted to give evidence of an expert nature and ruled Dr McDonald's proposed evidence to be inadmissible. See Bropho v The State of Western Australia [2007] WADC 77 at [105].
The appellant's trial before Nisbet DCJ ('the trial judge') was made pursuant to an order under s 118 of the Criminal Procedure Act 2004. It was ordered that the appellant be tried by judge alone without a jury. This meant that s 119 and s 120 of the Criminal Procedure Act 2004 were applicable. Those sections govern the procedure to be applied upon trial by judge alone. The trial judge was fully aware of them and made reference to them in his reasons for judgment. Those reasons are 40 pages in length and contain detailed analysis of the evidence called by both the prosecution and the defence. The reasons include the trial judge's conclusions pursuant to which the appellant was convicted on five counts on the indictment.
Evidence of the complainant
The prosecution case relied primarily upon the evidence of the complainant.
Although the appellant was acquitted on counts 4 and 5 on the indictment, it is necessary to relate the evidence on those counts. The grounds of appeal place reliance upon the appellant's acquittal on them.
Count 1
This count alleged an act of sexual intercourse between the appellant and the complainant, on what the complainant said was the first occasion she had intercourse with the appellant. The complainant said that she was 11 years of age and in company with about 20 cousins and friends. She went to a house at 112 Helena Street, Guildford. It was the house of Margaret Jeffrey, a friend and supporter of the appellant.
The complainant said that she was on the way to the river with her friends for the purpose of sniffing glue and swimming. She called at the house to get money from the appellant for food. She said that she asked the appellant for $20 but he did not give it to her straight away. She said that she waited outside the house for about 20 minutes and then went inside. She contended that the appellant touched her on the breast on that occasion. She said that shortly afterwards the appellant gave her $20 and asked her to return later.
The complainant said that she later returned to the house (at night) and tapped on the window of the appellant's bedroom at the side of the house. She said that he let her in and took her into his bedroom where he said that he had $500 for which he wanted 'a munnie' (which meant sex). The complainant said that she took her clothes off, and was told to lie on the bed. She said that the appellant put a pillow underneath her bottom and then had penile intercourse with her. She said that it felt gross because he was her 'grandfather'. She was unable to say how long the sex went on, but it went 'till he blew'. The complainant said that she got the $500 and used it for the purpose of taking a taxi to her mother's place at the Lockridge camp.
The complainant then said that from approximately 11 years of age until 22 years of age the appellant regularly had sex with her until she decided she had had enough and refused further sex. She said that on the occasions upon which she did have sex with the appellant she received money for it.
Count 2
The complainant said that on this occasion she went to Mrs Jeffrey's house at 112 Helena Street. It was not long after the first occasion. She was still 11 years of age. She said that it was cold at the time and she did not see Mrs Jeffrey at the house. She was taken into the lounge room where there was a mattress on the floor. She said that she had sex with the appellant as he lay on his back and she sat on top of him. She was given money and she then went to sleep. She woke up the following morning and saw Mrs Jeffrey. The complainant said that Mrs Jeffrey asked her how she came to be there and she said that she had slept there because she had nowhere else to go.
Count 3
The complainant testified that on this occasion she had sex with the appellant in a toilet at the house at 112 Helena Street. She said that she was either 12 years of age or younger. She said that after Mrs Jeffrey had left the house she went into the toilet with the appellant. As far as she knew there was nobody else at the house. She said that she took her pants off and when the appellant came into the toilet he had sex with her from behind, while she bent over the toilet. She said that to aid the appellant in inserting his penis into her vagina she lifted one foot up onto the toilet seat. She described the appellant as having ejaculated, but she did not know 'if he come inside me or not but he pulled it out and was flipping it'. The complainant said that the appellant wiped his penis on toilet paper. She said that the appellant was not circumcised. The trial judge noted that this fact was uncontradicted by the appellant when he gave evidence.
Counts 4 and 5
These were the two counts upon which the appellant was acquitted. The offences, the subject of these counts, were alleged to have occurred at the Swan Valley Nyungah Community (commonly referred to as the Lockridge camp). The complainant said that the appellant had an accommodation unit attached to his office at the camp. When she was 12 years of age, she was living at the camp with her mother and her aunt. She said that she went to the appellant's unit to ask him for money. There was nobody there at the time. She went into the bedroom, took her clothes off, laid on the bed and asked the appellant to put on the television. She said that the appellant put a mirror in a position where he could see his penis going in and out of the complainant's vagina and he had sexual intercourse with her placing a pillow beneath her bottom. The complainant said that shortly after this incident there was a second act of sexual intercourse in the same place. On this occasion she said she was on top of the appellant.
Count 6
The complainant said that just before she turned 13 years of age there was an occasion outside the Lockridge camp in an area of bush 'over on the other side' where she had sexual intercourse with the appellant. She said that she asked for money and the appellant asked her to meet him in the bush outside the Lockridge camp. She did so and the appellant took off his jacket and laid it on the ground. She laid on her back on top of the jacket and the appellant had sexual intercourse with her. She said that she thought the appellant ejaculated inside her. She said that she got $80 after the act.
Count 7
The complainant said that on this occasion the appellant bailed her from the Longmore Juvenile Detention facility. She said she was then 12 years of age and had been placed in Longmore in consequence of offending. She said that she telephoned the appellant and asked him to bail her out and collect her. She said that he came in a taxi and picked her up. Her evidence was that she got out of the taxi underneath a bridge near Margaret Jeffrey's house in Guildford, walked into the bush with the appellant and had sex. She testified that the appellant lay on top of her and inserted his penis into her vagina. She said that the sex act did not take place for very long and that 'he come'. She said that she was given 'smokes' and $5 for her train fare.
Uncharged acts
The prosecution led 'relationship evidence'. This consisted of evidence of uncharged acts. The complainant said that there was an occasion when the appellant picked her up from outside the East Perth lockup and took her over the road to Queens Park gardens where she had sex with him in the bush. She was unable to say whether she was under or over the age of 13 years. There was also evidence of other uncharged acts in the sense that the complainant contended that she had regular sexual intercourse with the appellant, between the ages of approximately 11 and 22 years, until she brought the sexual relationship to an end.
Cross-examination of the complainant
The complainant was cross‑examined in detail about her criminal record. She admitted to having given false names and details to police on a number of occasions. She admitted to having used a number of aliases. She admitted to sniffing glue between the ages of 10 and 16 years and taking speed at the age of 14 years. At the time she was cross‑examined, she had spent a total of 4 1/2 years in gaol.
The complainant's evidence was pre‑recorded under s 106I and s 106K of the Evidence Act 1906 (WA). That pre‑recording was first conducted before Wager DCJ on 2 February 2006. It appears in the transcript that only evidence‑in‑chief was taken on 2 February 2006. Cross‑examination occurred on 8 February 2007, in proceedings presided over by Fenbury DCJ.
The video‑recorded evidence‑in‑chief of the complainant was played before the trial judge on the morning of 4 February 2008 and the cross‑examination later on the same day.
On 5 February 2008 oral evidence was called. The prosecution called Sharon Gabrielle Bropho. She gave evidence that the complainant told her in 2001 that the appellant was 'having an affair' with her. Ms Bropho also said that in or around 1993‑1994 the complainant told her that the appellant had been 'messing around with her'. Ms Bropho said the complainant did it because she needed money to support a drug habit. This evidence was led not as evidence of recent complaint, but to rebut the suggestion of recent invention, which had been put to the complainant during the course of her cross‑examination.
The prosecution called Bradley Alan Potter, who produced records from Longmore Remand Centre. He testified that there were two occasions (14 November 1989 and 21 December 1989) when the complainant had been bailed from the Longmore Remand Centre by the appellant. The address shown for the complainant on the discharge form was Helena Road, Guildford. There was a further occasion (22 June 1990) when the complainant was admitted into custody and discharged, but the records did not reveal whether she had been discharged from Longmore or Nyandi.
Peter Hugh Davey gave evidence that in 2003 he photographed the Johnson Street bridge, being the bridge described by the complainant, as the location at which she had sexual intercourse with the appellant.
Debra Joy Newman gave evidence in relation to investigations she made of an area in Guildford between the Johnson Street bridge and 112 Helena Street. There was a school on Helena Street which was closer to 112 Helena Street than the Johnson Street bridge.
The prosecution called two experts, being Lawrence Grant Webb and John Simon Buckleton. These witnesses gave evidence about DNA profiles and I will advert to that evidence when dealing with the grounds of appeal.
Evidence of the appellant
The appellant gave evidence in his defence. He denied that he had ever had sex with the complainant. He dealt with each of the counts in the indictment. In essence, his defence was that to have had sex with the complainant was 'against (his) knowledge and principles', because he was a senior Aboriginal elder.
He said, in relation to count 1, that the room identified by the complainant as a bedroom was the book room and not a bedroom at all.
He said, in relation to count 2, that the complainant had never slept at Mrs Jeffrey's house for a full night.
He said, in relation to count 3, that he had never had sex with the complainant in a toilet at Mrs Jeffrey's house and, to the best of his knowledge, there was never any occasion when he and the complainant were alone at the house.
The appellant said that his living quarters at the Lockridge camp were not constructed until after he had had a heart attack in 1994, so that the allegations made by the complainant about sex at the Lockridge camp (counts 4 and 5) could not have occurred when she was under the age of 13 years. Documents were tendered at the trial which revealed that the office and living quarters at the Lockridge camp were established on 30 November 1994.
The appellant said that he did not have sex with the complainant in the bush near the Lockridge camp as the complainant had alleged in relation to count 6. He said that the area in question was forbidden territory by reason of its Aboriginal associations and it was snake infested. He said that as a senior elder he would not do such a thing on sacred ground.
The accused denied having sex with the complainant under a bridge near Ms Jeffrey's house as the complainant had alleged in relation to ground 7. He did, however, agree that there was an occasion when he had collected the complainant from Longmore and taken her back to 112 Helena Street, Guildford. The appellant said that there were three bridges in the area in question and he had not had sex with the complainant under any one of them.
The trial judge made detailed reference in his reasons to the cross‑examination of the appellant on each count, but it is presently unnecessary to refer to that evidence.
Witnesses for the defence
The defence called Margaret Joanna Jeffrey to give evidence. She said that she was the owner of the property at 112 Helena Street, Guildford. She had lived at that address at all material times. She was the secretary of the Swan Valley Nyungah Community from 1978. Her house was used as the operational base for that community until an office and living quarters were erected at the Lockridge camp in November or December 1994.
Ms Jeffrey testified in relation to aspects of the house at 112 Helena Street. She said that the book room (which the complainant had identified as a bedroom) was one in which the appellant occasionally slept, but it was a very public room. She said that from the sleep‑out where she slept she could hear anything that was happening in the house, including people knocking on the front or back door. She said that the toilet and bathroom arrangement was such that it had flimsy asbestos walls and open louvres, so that anything taking place in the toilet could be heard in the house.
Ms Jeffrey gave specific evidence about an occasion in early 2001 when she picked up the complainant from the East Perth lockup. She said that, having picked up the complainant in Hay Street, she turned into Plain Street and as she did so the complainant pointed to a white building and said words to the effect that the people in that building wanted her to tell lies and say bad things about the appellant. The trial judge pointed out in his reasons that this incident had never been put to the complainant in cross‑examination. Counsel for the appellant stated that this was so, because at the time of the pre‑recording of the evidence he was unaware of it. When cross‑examined about the conversation, Mrs Jeffrey said that it must have taken place in either January or February 2001, because it was a hot, bright, sunny day. She said that she was shocked by what the complainant had told her and because she was so shocked it had engraved itself on her memory. When it was put to Ms Jeffrey in cross‑examination that the complainant was in custody between December 2000 and August 2001, Ms Jeffrey said she had no knowledge of that fact. It is unnecessary to refer to other aspects of Ms Jeffrey's cross‑examination. I shall refer later to the trial judge's view of her.
Dorothy Bropho, a first cousin of the appellant, testified that the complainant was always in her custody and at the time when the complainant alleged she had sexual relations with the appellant she had no opportunity to be alone with the appellant. She refused to agree that there could have been any occasion upon which the complainant was not within her care and control.
The trial judge's conclusions
The trial judge appreciated that because the complaints made by the complainant were 10 years old when she made complaint to the police in 2000 and 17 or 18 years old by the time of trial, the appellant was entitled to the benefit of a direction in accordance with the decision in Longman v The Queen (1989) 168 CLR 79 (a Longman direction). Such a Longman direction was administered by the trial judge to himself. He scrutinised the evidence of the complainant with great care. He thought that, in the circumstances of the case, an exceptionally close scrutiny of her evidence was called for. He appreciated that the appellant was under considerable forensic disadvantage by reason of the fact that many years had elapsed from the date of the alleged offences until the date of trial. His Honour identified a number of aspects of forensic disadvantage occasioned by lack of opportunity to test every aspect of the evidence.
When dealing with the credibility of the witnesses the trial judge repeated that, during the course of the complainant's evidence, he scrutinised her evidence with great care. He had since read and reread the transcript of her evidence and although aware of numerous shortcomings in her lifestyle (the abuse of solvents, the use of methylamphetamine, the likely effect of those substances upon mental acuity, the convictions for providing false information to police and the inconsistency between her evidence and written statements) he was nevertheless of the firm view that she was a completely truthful witness. The trial judge's conclusion was in the following terms:
I have … come to the firm and unshakable conclusion that she is telling the truth when she says that she was sexually abused by the accused from the time she was 11 years of age through until she was 22 years of age. I have no doubt about it whatever. Her evidence before me had the ring of truth and all the conviction of a truthful witness who had endured the acts of which she complained. There was not to me any hint of fabrication or malice or hidden motive for making a false complaint. Rather, she was, as a witness, for me, entirely credible. In this regard I wish to make it plain at this stage of my judgment that her credibility is as to each of the acts to which she was subjected by the accused. They happened as she said they did. As I have already said, I entertain no doubt that she was subjected to a long history of sexual abuse at the hands of the accused from the time she was about 11 years of age until she was about 22. [79]
The trial judge appreciated that each alleged offence had, as an element, the allegation that the complainant was under the age of 13 years. Because of this the trial judge subjected the complainant's evidence to 'even closer scrutiny' and that scrutiny meant that the complaints in relation to counts 4 and 5 could not be sustained. Nevertheless, the trial judge was convinced that, in terms of general credibility, the complainant was an entirely credible witness.
The trial judge rejected the sworn denials of the appellant in their entirety. He also formed a very poor view of the appellant as a witness. He described him as 'exceptionally evasive' and concluded that he had cynically taken advantage of his position of access to the complainant to abuse her [81]. The trial judge described the appellant's denials as 'glib and rehearsed' and said that he had lied 'over and over and over again in his testimony' [81].
The trial judge invited a reading of the transcript at 539 to 541. This was a portion of the cross‑examination of the appellant. When asked whether, on 20 January 2006, he had been convicted and sentenced in the District Court at Perth for two offences of indecently dealing with a child under 16 years of age, he prevaricated. The following questions and answers are instructive:
And that offence involved a 13-year-old girl?---I don't know the age.
Was a young girl?---The police and the welfare laid the charges, not me.
Do you accept she was a 13-year-old girl?---I don't know the age.
You sat through your trial, did you not?---Yes, I was in the trial.
There was evidence that she was 13 years of age?---I didn't hear it.
Okay. Do you accept there was evidence that she was 13 years of age?‑‑‑I couldn't accept nothing, but I didn't hear.
The cross‑examination continued:
The victim of the offences that you were convicted of was LMP, wasn't it?---Yes.
The younger sister of I?---Yes.
That happened in the offence at the Lockridge camp, didn't it. That's what ‑ ‑ ‑?---That was claimed, but it didn't happen.
Mr Bropho, you would accept that if anyone - and by 'anyone' I mean particular Aboriginal person - saw you - sorry, I will withdraw that and I will start again. It would not have been unusual for you to have been seen in the company of a young Aboriginal girl during the early 90s; 90, 91, 92, would it?---What is the real meaning in your question?
Are you asking me that you don't understand - is there anything about your question you don't understand?---Would you please explain your question.
Okay. My question to you, and I will repeat it - I will rephrase it. It was not unusual in 90, 91, 92 ‑ ‑ ‑?---What do you mean by 'unusual'.
These references are sufficient to illustrate why it was that the trial judge invited a reading of those pages of the transcript. His Honour stated that he paid no attention to the conviction itself (the evidence having been admitted pursuant to s 8(1)(e)(ii) of the Evidence Act), but he used the evidence to illustrate the appellant's patent lack of credibility.
The trial judge also found Ms Jeffrey to be evasive in cross‑examination. He did not accept her as a witness of truth. His Honour concluded that Ms Jeffrey had described a conversation with the complainant which was a complete fabrication. That was the conversation in which Ms Jeffrey alleged that the complainant said she was being forced to tell lies about the appellant. The trial judge found other reasons to discredit Ms Jeffrey's evidence. He rejected it in full.
The trial judge also rejected the evidence of Dorothy Bropho. He described her as 'an aggressive, hostile, belligerent witness' [88]. She shouted in the course of her evidence and abused the prosecutor during cross‑examination. The trial judge concluded that Ms Bropho's evidence that she had the complainant in her care and control at all times, 24 hours a day seven days a week, was so extravagant and so manifestly untenable that her evidence should be rejected in its entirety.
In short, the trial judge concluded that the evidence of both Ms Jeffrey and Dorothy Bropho was inherently unreliable because of its partisanship towards the appellant.
DNA evidence
The trial judge dealt with the DNA evidence in the following way.
The complainant had given birth to a number of children. Two who were relevant to the trial were Latoya (born 22 November 1996 and died 27 November 1996) and Deanna (born 17 July 1998).
The trial judge concluded that the act of sexual intercourse which gave rise to the complainant's pregnancy with Latoya would, if it was an ordinary full‑term pregnancy, have occurred some time late in February 1996. The act of sexual intercourse giving rise to the pregnancy and the subsequent birth of Deanna would have taken place around the middle of October 1997. The complainant would then have been 17 and 19 years of age respectively.
The prosecution case was that the appellant was the father of each of the children. This evidence was not led to establish the commission of any of the counts on the indictment, but was primarily led to demonstrate an ongoing sexual relationship with the complainant and also to establish that the appellant's denials that he had ever had sexual intercourse with the complainant were lies. There was a further reason. It was that if those facts were proven, the evidence could constitute corroboration of the complainant's testimony about the nature of her relationship with the appellant.
The trial judge instructed himself that, even if the prosecution established beyond reasonable doubt that the appellant was the father of either or both of the children, it did not prove that sexual intercourse had occurred with the complainant when she was under the age of 13 years. Nor did it prove a propensity in the appellant to have sexual intercourse with young girls. Nor did it constitute a lie in the 'Edwards sense' (Edwards v The Queen (1993) 178 CLR 193) because there were many reasons why the appellant might deny having sex with the complainant, whether before she was 13 years of age or after.
The trial judge concluded that he could only use lies of the appellant (if established) in the way instructed by the High Court in Zoneff v The Queen (2000) 200 CLR 234; (2000) 72 ALR 1. His Honour held that it is inappropriate to follow a process of reasoning to the effect that just because a person is shown to have told a lie about something it is evidence of his guilt.
The commencement point for the significance of the DNA evidence was that the evidence established that the complainant had a number of sexual partners at the time she could have conceived Latoya and Deanna. In relation to Latoya, they were Deon Woods, Gerard Stack (son of Valerie Pickett) and the appellant. In relation to Deanna, they were Deon Woods, David Kickett (son of Sharon Kickett) and the appellant.
Evidence was led by the prosecution to exclude Deon Woods and Gerard Stack as the possible fathers of Latoya and to exclude Deon Woods and David Kickett as the possible fathers of Deanna.
Evidence of Mr Webb
Laurance Grant Webb, a senior forensic scientist at PathWest, and an acknowledged expert in forensic biology, gave uncontradicted evidence that DNA analysis excluded Deon Woods as a potential father for both Latoya and Deanna; Gerard Stack as a potential father for Latoya; and David Kickett as a potential father for Deanna. This meant that only the appellant was a potential father of each of Latoya and Deanna. He could not be excluded on Mr Webb's analysis of the DNA evidence.
Mr Webb gave evidence that the statistical probability of the appellant being the biological father of either or both of the children could be calculated. He said, however, that this calculation was referred to Dr John Buckleton, who was a specialist in the area.
Evidence of Dr Buckleton
Dr John Buckleton testified that he was the Principal Scientist at ESR, which is the Government Forensic Science Service in New Zealand. He was clearly an expert with many qualifications. His brief was to provide a paternity index in respect of the paternity of each of Latoya and Deanna. He concluded that: (1) the genotypes of Deanna were 30,000 times more likely if the appellant was Deanna's father than if a random man from the same sub‑group as the appellant was the father; (2) the genotypes of Latoya were 700 times more likely if the appellant was the father of Latoya than if a random man from the same sub‑group as the appellant was the father; (3) the genotypes of each of Latoya and Deanna were 800,000 times more likely if the appellant was the biological father of both compared to a random man from the same sub‑population.
The evidence established that Dr Buckleton had developed a co‑efficient to account for the sub‑population effect. This was called a 'co‑ancestry co‑efficient'. It was synonymous with FST. The value which Dr Buckleton ascribed to it was also known as the theta value. At trial, Dr Buckleton gave oral evidence that he had used an FST value of 5% for the purpose of his calculations. This, he said, was very conservative.
The trial judge considered Dr Buckleton to be 'a most impressive witness' whom he described as 'scientific and considered in both approach and presentation' [103].
At the hearing of the appeal, counsel for the respondent sought to adduce additional evidence from Dr Buckleton with regard to the inconsistency between his oral evidence and the report dated 1 December 2005 which recorded that he used a theta value of 3% in arriving at a paternity index value of 30,000 in relation to Deanna. That evidence was in the form of a statement made by Dr Buckleton on 18 March 2009, in which he said that the correct FST value should have been 3%, so that the correct value (in the case of Deanna) was 30,000 for 3%. He believed that the most likely reason for his error in selecting 5% was that the FST value 'used routinely has changed between the calculation of the paternity index and the testimony and I have not had the presence of mind to note the change'.
The respondent sought to tender Dr Buckleton's statement (annexed to an affidavit of Mr Lindsay Makinson Fox of the office of the DPP sworn 18 March 2009) pursuant to the provisions of s 40(1)(e) of the Criminal Appeals Act 2004 (WA). Counsel for the appellant stated that he had no instructions on the matter because he had only received the document that morning. The court resolved to receive the affidavit on a limited basis, reserving the question whether it should be received on a more extended basis. This raised the question whether the extended evidence of Dr Buckleton as to the comparison between the use of a 3% FST value and a 5% FST value could be accepted.
In my opinion, the evidence should be accepted on a limited basis and the court should receive Dr Buckleton's summary contained within his statement of 18 March 2009 which is to the following effect:
This evidence should only be accepted to the extent that it identifies and confirms that the figure of 5% which was not used, but mentioned, at trial, was in fact 3% in relation to the paternity index value of 30,000 for Deanna. The evidence also provides an explanation for Dr Buckleton's erroneous statement in oral testimony.
The assertion that the correct paternity index value in Deanna's case would be 13,000 for 5% should not be accepted by the court, in circumstances where the appellant has not been given an opportunity to respond to it.
In written submissions, counsel for the respondent pointed out that the inconsistency was not put to Dr Buckleton at trial. It was not relied on by the appellant at trial. Furthermore, there is no evidence to suggest that the differential is of any real significance. It appears that the trial judge utilised the paternity index figure of 30,000 in arriving at his conclusion. In any event, as counsel for the respondent submitted, the inconsistency is of little relevance in view of Dr Buckleton's evidence that the FST value used to calculate the paternity index values is conservative, in that it favours the appellant.
Evidence of Professor Boettcher
The trial judge compared the evidence of Dr Buckleton with that of Professor Barry Boettcher, a witness called on behalf of the appellant.
Professor Boettcher testified that the sub‑population model employed by Dr Buckleton was not capable of producing a reliable paternity index. He gave two reasons for this: (1) the database being used was not reflective of the sub‑population of which the appellant was a member; (2) Aboriginals do not mate randomly because they are from small populations and are predominantly inbred, which, in turn, creates a sub‑structure which cannot be accounted for.
The trial judge had difficulty with Professor Boettcher's evidence. He concluded that he was not 'as well or as recently qualified by contemporary research as Dr Buckleton' [106]. He did not consider his publications and research to be as extensive as Dr Buckleton's.
Professor Boettcher acknowledged that he did not have Dr Buckleton's computing power in order to test the sub‑population model for himself against his own hypothesis. His opinion relied on some assumptions which the trial judge found unsupported by the evidence. The first of those was that he had assumed that the sub‑population to which the appellant belonged was a group of Aboriginals of the south‑west of Western Australia. However, the appellant was not a person who had a genealogy of having come from an inbred sub‑population group of the Aboriginal people of the south‑west of Western Australia. His accepted ancestry was quite different because he was a mixture. Half his genetic material came from an Aboriginal group in the Kimberleys and the other half, whilst primarily of Nyungah descent, demonstrated that of a genealogy which included a Caucasian and a West African.
The trial judge concluded that this error demonstrated a problem with Professor Boettcher's attack on Dr Buckleton's sub‑population model wherein he contended that Aboriginals do not mate randomly because they are from small inbreeding groups. The trial judge concluded that the case of the appellant was a case which proved precisely the opposite.
The second difficulty the trial judge had with Professor Boettcher's evidence was that he 'ascribed the use of a formula to Dr Buckleton without knowing that that was what he had actually used' [107]. Further, and in any event, it was revealed in cross‑examination of Professor Boettcher that he had used the wrong formula.
The trial judge preferred the evidence of Dr Buckleton to that of Professor Boettcher. His key conclusion was as follows:
[Dr Buckleton] has established to my satisfaction beyond reasonable doubt that the subpopulation model is a scientifically valid proven means of establishing a paternity index which in turn provides a statistical result that the genomes of each of Latoya and Deanna are 800,000 times more likely if the accused is the father of both of those children than if some other Aboriginal male from the same subpopulation on the State's DNA database was the father. This is highly persuasive. In a civil suit I would have no hesitation in finding that on the balance of probabilities the accused is the father of each of Latoya and Deanna. And within this setting in a criminal trial I find, beyond reasonable doubt, that the scientific evidence has established that the accused is the father of each of Latoya and Deanna. This finding demonstrates that the accused's denials that he has ever had sexual intercourse with the complainant are lies impacting seriously upon his credibility and, further, that the complainant was telling the truth when she said she had a sexual relationship with the accused over many years. [109]
The trial judge's conclusions on the indictment
The trial judge found the case against the appellant proven on counts 1, 2, 3, 6 and 7. He found the appellant not guilty on counts 4 and 5. Although concluding that incidents of the type described by the complainant as supporting counts 4 and 5 on the indictment had taken place in the appellant's bedroom at the Lockridge camp, his Honour was not satisfied beyond reasonable doubt that they occurred at the time contended for by the complainant. He accepted that the Swan Valley Nyungah Community office and living quarters were not put on site at the Lockridge camp until 30 November 1994 at the earliest and accordingly, the complainant was not under the age of 13 years at that time.
In finding the other counts proven, the trial judge repeated that he had scrutinised the complainant's evidence with great care. He believed her evidence and 'entertained no reasonable doubt about it' [111].
Grounds of appeal
Ground 1
This ground contends that the trial judge erred in law in concluding that he was satisfied beyond reasonable doubt of the guilt of the appellant on the five counts on which he was convicted. The first particular contends that the trial judge placed on the appellant a burden of proof to establish the identity of any other potential or actual father, besides himself, of each of the two relevant children. This was not pressed.
The second particular contends that the trial judge failed to consider the DNA paternity evidence together with all the other evidence in the case.
The third particular contends that the trial judge erred in concluding that the paternity index, produced as a result of the application of the sub‑population model employed by Dr Buckleton, was reliable.
The contention that the trial judge failed to consider the DNA paternity evidence, together with all the other evidence in the case, cannot be sustained. The trial judge did consider the paternity evidence in the context of the trial as a whole.
His Honour concluded on the evidence of the complainant alone that the five counts had been made out beyond reasonable doubt. He found her to be telling the truth and he had no doubt about it. His Honour formed what he termed a 'firm and unshakeable conclusion' that she was truthful [79]. This was in the face of scrutinising her evidence exceptionally closely. On the other hand, the trial judge totally disbelieved the evidence of the appellant and his witnesses.
In the circumstances of the case, the trial judge was entitled to conclude that each of the five counts had been made out in the absence of the DNA evidence.
However, the trial judge did consider the DNA evidence. He concluded that, by reason of the DNA evidence to the effect that the appellant was the father of each of Latoya and Deanna, it strengthened his conclusion that the appellant could not be believed. His credibility was destroyed. Further, the evidence was used to corroborate the complainant's testimony in the sense that she told the truth when she said that she had a sexual relationship with the appellant over many years.
The trial judge stressed that the DNA evidence in relation to paternity constituted only relationship evidence. It could not go to the question whether the appellant had committed each of the offences the subject of the five counts on which he was convicted. The admissibility of relationship evidence is clear. See Gipp v The Queen (1998) 194 CLR 16 per Callinan J at [182]. Different views have been expressed as to whether relationship evidence is, in truth, propensity evidence or whether it is similar fact evidence. See, for example, S v The Queen (1989) 168 CLR 266 per Toohey J at 279 ‑ 280.
Propensity and relationship evidence is dealt with under s 31A of the Evidence Act 1906. It is admissible if the court considers that it would have significant probative value and if the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that a fair‑minded person would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (s 31A(2)).
No issue was drawn in this case about the admissibility of the evidence. Nor was any issue drawn as to the standard of proof called for in relation to that evidence. As a fact, the trial judge found beyond reasonable doubt that the scientific evidence had established that the appellant was the father of each of Latoya and Deanna. Whether proof beyond reasonable doubt was required may be an open question (cfHML v The Queen [2008] HCA 16 per Gleeson CJ [29] ‑ [32], Gummow J [41], Kirby J [61] ‑ [63] and [83], Hayne J [132], [196], [244], Heydon J [339] and [395] ‑ [396], Crennan J [477], Kiefel J [506] and [512] ‑ [513]. If Crennan J is correct that only if the evidence is indispensable to a finding of guilt does it need to be proven beyond reasonable doubt [477], the relationship evidence in the present case did not require that standard of proof, as it was not indispensible to a finding of guilt. The trial judge reached a conclusion that proof beyond reasonable doubt was required and that conclusion was to the appellant's benefit.
In my opinion, the paternity evidence was considered together with all other evidence in the case. The other evidence in the case established to the satisfaction of the trial judge, beyond reasonable doubt, that the appellant was guilty of the five counts of which he was convicted. The DNA evidence was used only as relationship evidence and it was properly used by the trial judge. I do not consider that there is any complaint that can be made about it and I would dismiss ground 1(b) of the grounds of appeal.
Ground 1(c) questions the conclusion by the trial judge in relation to the paternity index produced by Dr Buckleton.
I have already pointed out that Dr Buckleton has said, in a statement dated 18 March 2009, that an FST value of 3% was more appropriate.
Nevertheless, the use of a 5% FST figure favoured the putative father of the children because it was a very conservative assessment.
When questioned about the Theta co‑ancestry co‑efficient, Dr Buckleton explained that it is used to correct the sub‑population effect. He explained this in the following way:
If people breed within a small group, and the most likely reason for this is just geography, it's just difficult to breed - for instance, if you're in Western Australia it's quite difficult to breed with someone from New South Wales until we invented modern transport. If you breed within a small group, the people in that group become slightly more like you and therefore the chance of a match is slightly elevated and this compensated for that slight elevation.
That's why you include it?‑‑‑Yes.
Figuring out what it should be - have you done that in this particular case, and if so, what figure did you use in this case?‑‑‑I didn't do it for this case. It actually arose out of a previous trial. The previous trial found that the existing data were not adequate to found the number I was using at that time. In response to that a massive survey has been done and it is that survey that is the foundation for the number I now use. (ts 311)
Dr Buckleton continued:
That study in order to come up with this 5 per cent, can you tell us what it entailed?---Yes. We had the cooperation of all the jurisdictions within Australia who provided us with data. Each person came with a genotype and a geographical place name that either we hoped was their place of residence but occasionally was the place of the crime.
Place of the?---Crime.
The crime. All right, thank you?---The people were assigned to Aboriginal groups on the basis of that place name and I then performed a set of calculations using established methodology to estimate theta. Having done so, we then chose a number markedly bigger than my estimate, so in fact the 5 per cent is markedly bigger than the estimate. (ts 312)
In point of fact, Dr Buckleton was really of the opinion that the mean theta estimate of 1.7 or 1.8 was the correct theta estimate. He said:
Having taken these profiles and attributed them to an Aboriginal tribal group based on this Horton's map of Aboriginal Australia, can you tell us what your findings were?---The mean theta estimate was of the order of 1.7 per cent - can you just help me with it exactly?
The mean theta - - -?---For remote only, if we can find it. Anyhow, it's of the order of 1.7 - we'll correct that in a minute when you find it. We looked at every pairwise distance and we found several outlier values in the north of the Northern Territory. Taking into account these outlier values we have eventually assigned a value of 5 per cent to work with, and that's our recommendation. I will find it in the interval.
NISBET DCJ: The mean theta estimate or all remote Aboriginal population away from stronger consensus was 1.7?---Yes, sir, I will just correct - it might be 1.8, 1.7, something like that. I'll just get it exactly right for you but - - -
That's enough for me at the moment. If there is any doubt about it, let me know. You adopted a value of theta, as I understand your evidence, of 5 per cent to take account of some particular populations of Aboriginal people where the - if you like, the conjugal pattern was such as to raise the probability of common parentage. Can I put it that way?---Yes, sir, that's broadly correct. I actually don't quite know the reason. There are various possible reasons for the extreme values. They were in the extreme north of the Northern Territory. I can name them if we wish. I can't quite exactly say the cause. There are various competing possibilities, but broadly you're spot on.
All right. Those populations were, generally speaking - I'm not using this pejoratively, but aberrant to the greater population of the study?---Yes, sir, and if I can put a couple of words of context, it's sometimes useful to have a scale so cousins have a theta of six and a quarter and siblings have a theta of 25 per cent if that's any use to you as a scale, and theta can be thought of very usefully as a difference, so the average difference between tribes was 1.7 per cent. There were a couple that were more different. (ts 317 ‑ 318)
Later, Dr Buckleton explained that he found the mean theta estimate to be 1.7% but recommended the use of an FST value of 5%. He said that he used 5% in the calculations he had made in the case. His statement of 18 March 2009 now makes it clear that he was really using an FST value of 3% not 5% with regard to arriving at a paternity index value of 30,000 in relation to Deanna. The reason for the error was that the FST value had changed between calculation of the paternity index and the testimony that he gave. He said he had not had the presence of mind to note the change.
Whichever way one looks at it, the fact is that Dr Buckleton adopted a very conservative figure, whether it be 3% or 5%, in selecting a theta value. The true value was 1.7%. The use of either 5% or 3% was thus highly favourable to the appellant.
Perhaps of more significance is the question of joint paternity. It was this calculation which impressed itself upon the trial judge. He concluded that Dr Buckleton had established beyond reasonable doubt that his sub‑population model legitimately established a paternity index which, in turn, provided a statistical result that the genomes of each of Latoya and Deanna were 800,000 times more likely if the appellant was the father of both of those children than if some other Aboriginal male from the same sub‑population on the State's DNA database was the father.
The 800,000 figure is derived from the use of a 5% FST value. It is thus very conservative and highly favourable to the appellant.
Counsel for the appellant challenged the use of a joint paternity index, but it seems to me that the joint paternity issue was important, for the reasons discussed below.
The commencement point is to take Mr Webb's report of 23 March 2007. The summary of DNA typing results is as follows (with the complainant shown as IB):
| Sample/Name | D3S1358 | D16S539 | Amel | HUMTHO1 | HUMTPOX | CSF1PO | Vwa | FGA | D8S1179 | D21S11 | D18S51 | D5S818 | D13S317 | D7S820 |
| IB - Oral swab | 15/18 | 11/11 | X/X | 6/6 | 8/11 | 10/11 | 14/16 | 17/25 | 16/17 | 27/29 | 11/15 | 12/13 | 8/11 | 9/11 |
| Deanna Roberta BROPHO - Oral Swab | 15/15 | 11/11 | X/X | 6/9 | 8/8 | 10/11 | 16/18 | 24/25 | 13/17 | 27/29 | 11/13 | 13/13 | 8/11 | 9/9 |
| Foetus (foetal cells from placental tissue) - Paraffin block 96 4725RA3 | 15/15 | 11/12 | X/X | 6/6 | 8/11 | NR | 16/18 | 25/25 | 13/17 | 29/29 | 11/13 | 12/13 | 11/11 | NR |
| Robert Charles BROPHO - Oral swab | 15/17 | 11/12 | X/Y | 6/9 | 8/9 | 10/11 | 18/18 | 24/25 | 12/13 | 29/33.2 | 13/15 | 13/13 | 11/11 | 9/11 |
| Deon David WOODS - Reference buccal sample (DNA7063043) | 14/15 | 12/12 | X/Y | 7/8 | 8/9 | 9/11 | 16/18 | 21/25 | 13/15 | 30/36.2 | 13/17 | 12/12 | 8/12 | 9/10 |
Amel = amelogenin (gender)
NR = not reportable
Mr Webb explained in evidence that loci had been selected to show the variation in DNA typing between individuals. Loci are selected areas on the DNA molecule.
There are two other tables of significance. In relation to Deanna, the true father had to possess certain DNA alleles. Mr Webb listed those as follows:
D3S1358:
15
allele
VWA:
18
allele
FGA:
24
allele
D8S1179:
13
allele
D21S11:
27 or 29
allele
D18S51:
13
allele
D5S818:
13
allele
D13S317:
8 or 11
allele
D7S820:
9
allele
D16S539:
11
allele
HUMTHO1:
9
allele
HUMTPOX:
8
allele
CSF1PO:
10 or 11
allele
In relation to Latoya, the true father had to possess the following DNA alleles:
D3S1358:
15
allele
VWA:
18
allele
FGA:
25
allele
D8S1179:
13
allele
D21S11:
29
allele
D18S51:
13
allele
D5S818:
12 or 13
allele
D13S317:
11
allele
D16S539:
12
allele
HUMTHO1:
6
allele
HUMTPOX:
8 or 11
allele
The above tables reveal that Deanna and Latoya had alleles in common and alleles which were different. At the appeal hearing, counsel for the respondent contended that the three figures which are different, which discriminate between the two children, are of the most significance. They are, in the case of both children, FGA, D16S539 and HUMTHO1. The father, in each case, had to have contributed to those alleles at those loci.
The summary of typing results reveals that the appellant is capable of contributing at these loci the obligate allele (the alleles that the true father must pass on) for both children. It was thus contended that the relevance of the statistical analysis (namely, that the appellant was capable of contributing not only the common alleles, but the different alleles for both children) is that it rebuts the notion of coincidence that the children's DNA matches the appellant.
Counsel for the respondent put it this way:
The immediate question that springs to mind, one might have thought when looking at this, before even one goes to population statistics, is: what are the chances that Mr Bropho would happen to have a DNA profile that is capable of contributing these different alleles for each of Deanna and Latoya at the same time as being able to contribute all of the alleles that are in common between Deanna and Latoya?
One is here concerned with the question of coincidence and it is a rebuttal of the notion that this could be a coincidence; that it is relevant to have regard, we would respectfully submit, to the combined statistical results to arrive at the joint paternity index that Dr Buckleton arrived at.
The ways in which one might consider the question of whether he could be the father or the likelihood that he is the father of each of these children is to consider the likelihood of his being the father of Deanna by reference to a statistical analysis of the database, consider whether he could be the father of Latoya by reference a statistical analysis of the database and then to consider the likelihood of his being the father of both children, as the complainant claimed him to be. ts 106 ‑ 107
The evidence of the complainant was that, as far as she knew, the father of both Deanna and Latoya was the appellant. She described him as 'old Robert' and 'my grandfather', but in fact the evidence established that he was not a true grandfather. He was her mother's uncle. The appellant repeated this evidence when cross‑examined.
The complainant did say that when pregnant with Deanna she was having sex with Deon Woods, David Kickett and the appellant. When pregnant with Latoya she was having sex with Gerard Stack, Deon Woods and the appellant. She thought at first that the child was Gerard Stack's.
In the course of her evidence‑in‑chief, the complainant said that she thought the appellant was Deanna's father because the child did not look like Deon and did not look like Phyllis, of whom Deon was the father. She said that Latoya looked like Deanna. She described her as the 'spitting image of her'. The 'bits of them that looked the same' were described as 'face, hair'.
In my opinion, the DNA evidence led by the prosecution was capable of establishing the likelihood that both Deanna and Latoya were fathered by the same person. Additionally, the DNA evidence supported the complainant's evidence that the appellant had had sexual relations with the complainant. Thus, the only person who was having sex with the complainant at the relevant time, who could have been the father, was on the DNA analysis, the appellant.
At the hearing of the appeal, the court requested that the solicitors for the appellant file a list of evidentiary references relevant to certain aspects of the DNA evidence. The court has taken into account (along with other matters) the evidence so identified.
Upon reviewing all the evidence, I consider that it was open to the trial judge to conclude (if he was required to do so) that he was satisfied beyond reasonable doubt that the scientific evidence established that the appellant was the father of each of Latoya and Deanna. The calculations of Dr Buckleton, which were accepted by the trial judge, revealed statistically that the genomes of each of Latoya and Deanna were 800,000 times more likely if the appellant was the father of both of them than if some other Aboriginal male from the same sub‑population on the State's DNA database was the father.
I would therefore dismiss ground 1(c) of the grounds of appeal.
Ground 2
This ground contends that the trial judge erred in law by failing adequately to set out in his reasons for judgment his findings and the intellectual processes which had resulted in his decisions. Particulars (a), (b) and (c) question the trial judge's use of Dr Buckleton's statistical analysis and particular (d) contends that the trial judge failed adequately to set out his reasons in dealing with the evidence of Professor Boettcher.
I have already pointed out that the trial judge saw the DNA evidence as relationship evidence only. It had a limited purpose. In one sense it was unnecessary for the trial judge to have reached any conclusion about the DNA evidence, but he did so. The conclusion was important because it went directly to the credibility of the appellant and it corroborated the testimony of the complainant. The question is whether the treatment of the DNA evidence was adequate.
I have already mentioned that the trial judge was impressed with the evidence of Dr Buckleton. He accepted him as well qualified and 'measured and careful' in the way in which he gave his evidence [103]. The trial judge summarised what Dr Buckleton's evidence was. He accepted it and in particular, accepted his conclusions in relation to the question whether the appellant was more likely than any other random male from the same sub‑population to be the father of both Latoya and Deanna.
The trial judge understood the link between the evidence given by Mr Webb and that given by Dr Buckleton. His Honour set out the uncontradicted evidence of Mr Webb, the evidence of Dr Buckleton in relation to his use of a paternity index and his conclusion that the genomes of each of Latoya and Deanna were 800,000 times more likely if the appellant was the father of both compared to a random Aboriginal male from the same sub‑population. I have already said that the FST value utilised by Dr Buckleton was extremely conservative and to the advantage of the appellant rather than the contrary. A lower FST value was clearly to his detriment.
The obligation of a trial judge to deliver reasons for judgment which set out the basis for the trial judge's decision is clear. See Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [26] ‑ [29]. The reasons for judgment must disclose adequately the intellectual process which has resulted in a particular determination. See Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 per Owen J at 73.
In my opinion, the trial judge adequately set out his reasons for concluding that the appellant was the father of each of Latoya and Deanna. The intellectual process by which his Honour reached that conclusion is clear from the section of the reasons which deals with the DNA evidence (see [89] ‑ [109]).
I am therefore of the opinion that grounds 2(a), (b) and (c) cannot be made out.
The only remaining component of ground 2 relates to the trial judge's treatment of the evidence of Professor Boettcher. Counsel for the appellant contends that the trial judge failed adequately to deal with his evidence.
The trial judge gave detailed consideration to Professor Boettcher's testimony (see [104] et seq). His Honour pointed out that Professor Boettcher questioned Dr Buckleton's sub‑population model in the sense that it could not (in his opinion) produce a reliable paternity index. Two reasons were given: (1) the database used was not reflective of the sub‑population of which the appellant was a member; (2) Aboriginals do not mate randomly because they are from small populations which are predominantly inbred, and, in turn, a sub‑structure is created which cannot be accounted for.
The trial judge observed that Professor Boettcher accepted the validity of the sub‑population model. He accepted that it was used internationally. He accepted that when dealing with a potential sub‑population a theta value had to be utilised.
The trial judge found a number of problems with Professor Boettcher's evidence. They were: (1) he was not as well qualified as Dr Buckleton; (2) he did not have the computing power of Dr Buckleton; (3) his opinion relied on assumptions which were unsupported by the evidence, they being (a) an assumption that the sub‑population to which the appellant belonged was a group of Aboriginals of the south‑west of Western Australia; (b) the ascribing of the use of a formula to Dr Buckleton which was the wrong formula.
In my opinion, the trial judge dealt adequately with what he saw as the shortcomings of Professor Boettcher's evidence and it cannot be said that his Honour failed adequately to set out in his reasons his findings and the intellectual processes which had resulted in his decisions in relation to that evidence. I therefore see no substance in ground 2(d).
Ground 3
This ground of appeal challenges Goetze DCJ's ruling in relation to the evidence of Dr Brian McDonald.
Goetze DCJ ruled that Dr McDonald's evidence was inadmissible. His conclusion was as follows:
I accede to the State's request to not permit Dr McDonald to give evidence of an expert nature. Further, much of the material in the report is otherwise inadmissible in that it refers to an earlier case involving Mr Bropho. Alternatively, the source of certain information for the report has not been identified. Thus, to adopt the State's submissions, Dr McDonald does not have expertise to give expert opinion on the following issues:
(a)the validity or otherwise of the database used by Dr Buckleton and Mr Walsh;
(b)the validity of any population model, and particularly that used by Dr Buckleton and Mr Walsh in the calculation of the paternity index in this case;
(c)the value of Fst; and
(d)the paternity index.
I will accordingly order that Dr McDonald's evidence be ruled inadmissible. [105] ‑ [106]
Goetze DCJ's reasons for judgment are an exhaustive analysis of the qualifications of Dr McDonald and his capacity to give the evidence which the appellant proposed. Because the reasons are lengthy, I will refer to the relevant paragraphs in the reasons.
The first issue related to Dr McDonald's qualifications. These qualifications included the fellowship of a number of bodies, one of which was the Human Genetics Society of Australasia in molecular genetics. Goetze DCJ was caustic in his criticism of this claim, concluding at [31] that apart from Dr McDonald being a Fellow of the Society (which was not an apparent class of membership under its constitutional by‑laws) there was no information as to classification of his membership of the Society. Its curriculum was only a draft and nobody was enrolled in a course which led to certification.
Goetze DCJ was unable to accept that Dr McDonald had any experience in the field of molecular genetics training. He said at [38] that he was not advised of any such experience or academic attention which Dr McDonald had given to the issue. He had not attended any course on population genetics and such knowledge as he had in relation to the issue appeared to have been learned from journals and other people. Goetze DCJ's conclusion was:
Following this passage in his evidence-in-chief, which again lacks detail of 'experience in the field' and 'academic attention', Dr McDonald confirmed that the various technical matters referred to by him such as mapping, linkage disequilibrium and haplotypes in the human genome, complex multi-factorial and quantitative traits, population genetics and Hardy-Weinberg equilibrium, a population driver for theta and subpopulation models were all things learned from the journals and other people, but which journals and which other people were not identified. [41]
Goetze DCJ also concluded at [43] that Dr McDonald had no qualifications or formal training in determining if a DNA profile was to appear in someone else in the population. Again, he said his knowledge in that area came from experience.
An important conclusion was reached by the trial judge with regard to Dr McDonald's capacity to give evidence in relation to an FST value. He concluded:
Although Dr McDonald knew that there are a number of ways of assessing Fst and that there are 'things' that can affect the value of theta, he could not specifically say what is a population driver for theta (T 214-215). He has never calculated a theta correction. The creation and validation of a subpopulation model would be outside his expertise (T 216). He does not have the expertise to 'derive a formula like that' for the purpose of this case. Dr Buckleton has done this (T 219). He could contribute to such a model with his genetics background, but a mathematician would be required to complete the model. Nonetheless, Dr McDonald thought that he could comment on the model (T 216). [44]
In relation to Dr McDonald's claim to expertise in DNA and molecular genetics, Goetze DCJ's conclusion was:
At the end of Dr McDonald's evidence-in-chief, I did not know from whom or from where Dr McDonald obtained his claimed expertise in DNA and molecular genetics. I still did not know what it is that Dr McDonald knows or does not know about DNA and genetics, and importantly, about population statistics, which he regarded as a 'rather esoteric little classification' (T 203). [45]
After reviewing the evidence of Dr Buckleton, Goetze DCJ concluded that a comparison with the evidence of Dr Buckleton and that of Dr McDonald explained why Dr McDonald was not an expert. He said:
He [Dr McDonald] does not have the expertise to derive and validate a subpopulation model. He cannot follow the derivations in such model. He has not attempted to follow the derivation of the subpopulation model used by Dr Buckleton in this case (T 237). [85]
His Honour added:
Dr McDonald is neither a population statistician nor a mathematician. His claim of expertise is as a molecular geneticist. Dr McDonald may be able to inform me what various terms mean, but, as I have indicated, such would be expected of counsel appearing in this case. I have previously noted the decisions concerning Mr Bropho and Riley (supra). Importantly, Dr McDonald does not understand the subpopulation model and its derivation.
…
In this case, it is the admitted inability of Dr McDonald to be able to ascertain his own formulae for use in a case such as the present by which he can create his own population model and understand the derivation of it which prevents him from commenting on the model prepared by Dr Buckleton. Dr McDonald cannot set forth a reasoning process or method which leads to his conclusion that Dr Buckleton's model is 'flawed' and 'invalidated'.
In the circumstances, there is insufficient evidence to persuade me that Dr McDonald is an expert in the subject area. Further, there is reason to doubt that his claimed 'Fellowship' in molecular genetics has in fact been bestowed by the Society, but, perhaps it just has not been properly proved. Membership of the Society, without more, does not establish expertise. [100], [103], [104]
The legal requirements in relation to expert evidence were discussed in detail by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [79]. They were summarised by Pullin JA in Hillstead v The Queen [2005] WASCA 116 at [48] ‑ [49]. His Honour said:
Two of those requirements are important here. The first is a requirement, not restricted to experts but imposed on all witnesses by the oath, which is to tell the truth and the whole truth. Thus, an expert who forms an opinion which is subject to a qualification should not express the opinion without disclosing the qualification: the second requirement is the requirement imposed on an expert to fully explain the way the opinion is formed. Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: Pollock v Wellington (1996) 15 WAR 1 at 3 ‑ 4; Makita (Australia) Pty Ltd v Sprowles (supra) at [81]. In short, it is a primary duty imposed on experts in giving opinion evidence to furnish the trier of fact with the criteria to enable the evaluation of the expert conclusion: Makita (Australia) Pty Ltd v Sprowles at [59].
In criminal cases the prosecutor has a clear duty to acquaint the Judge and jury in ordinary language, through the evidence which is led, with those aspects of the expert's discipline and methods necessary to put the court in a position to make some sort of evaluation of the opinion that the expert expresses. Where the evidence is of a comparatively novel kind, the duty resting on the prosecutor is even higher. Then the evidence should demonstrate the scientific reliability of the opinion expressed: Lewis v The Queen (1987) 88 FLR 104 at 123 ‑ 124 per Maurice J; Makita (Australia) Pty Ltd v Sprowles (supra) at [73]. It is the role of the prosecutor to strip forensic evidence of its mystery so far as is possible. The 'bare ipse dixit' of a scientist upon an issue in controversy should carry little weight. See Davie v Magistrates of Edinburgh (1953) SC 34 at 39 ‑ 40. (An 'ipse dixit' is an unproved assertion resting on the bare authority of the speaker). If the opinion is a 'ipse dixit' then as Heydon JA said in Makita (Australia) Pty Ltd v Sprowles at [62], the opposing party will have two choices. The first is to cross‑examine in the dark 'with the perils which usually face journeys into darkness', and the second is not to cross‑examine and run the risk of the court attaching weight to the opinion, ill‑substantiated though it may be on its face. [48] ‑ [49]
The application of these requirements to the present case illustrates that Goetze DCJ was justified in concluding as he did, that Dr McDonald was unable to give evidence of an expert nature. The judgment of Goetze DCJ on the issue is detailed and thorough. He has analysed in every respect the shortcomings of Dr McDonald's expertise and, in my opinion, he cannot be said to have adopted an overly narrow focus to the issue or to have scrutinised Dr McDonald's qualifications, awards and experience too rigorously.
There were four issues upon which Goetze DCJ considered that Dr McDonald did not have the expertise to give expert opinion. Counsel for the appellant contends that there was no reason why Dr McDonald could not have given evidence beyond these four issues. Counsel for the appellant referred in particular to a report of Dr McDonald dated 19 December 2005. Counsel contended that even allowing for Goetze DCJ's conclusions in relation to the four areas of expert evidence, there remained three opinions that Dr McDonald could have given. They were:
Dr Buckelton [sic Buckleton] has indicated that the CSF1PO locus is 25 centimorgans from the D5 locus. As such it would be expected that recombination between the two loci would occur 25% of the time during meiosis meaning that 75% they would segregate (be inherited) together. This is a situation that should preclude these two being used in a calculation such as this. The reason being is that multiplying frequencies of the two together gives a false indication of how frequently they occur together. The blond hair blue eye analogy is the one commonly cited, the two are linked and are not found independently and the product of their frequencies gives a false rarity of their occurrence together even with a theta correction. The results as calculated without CSF1PO are Pl 17,000 for unrelated and 38 for brothers.
The question of relatives is one that cannot be ignored. Dr Buckelton [sic Buckleton] has not provided his calculations but the brother hypothesis presumably assumes a fifty percent sharing of alleles and a correction of 3% for sub population effects but, an assumption, other than that, of no relationship between any parents. The 'real' figure may be more conservative than has been presented notwithstanding the inclusion of two linked loci. Other relatives of Mr Bropho may also include cousins, uncles, parent and children all of whom might be expected to cohabitate with Mr Bropho and also be potential parents of the child.
...
Finally, the Family Law Act paternity testing reports do not proceed to writing form 5 in the presence of relatives of the putative father not being tested and excluded. No facility exists in the report to give a probability for a relative being the father. All reports are written with regard to unrelated males and carry a specific note advising that the report is not valid in the presence of untested related males.
When pressed by the court to explain what import these opinions would have, counsel for the appellant conceded that it was doubtful that the first opinion went to any relevant evidence in the case. It was also conceded that the second and third opinions were of marginal import.
In these circumstances, I am unable to conclude that even if Dr McDonald had been allowed to give evidence in terms of the three opinions I have listed, it would have made any difference to the outcome of the case. There could be no miscarriage of justice occasioned by Goetze DCJ in ruling his evidence inadmissible. In my opinion, there is no substance in ground 3 of the grounds of appeal.
Grounds 4 and 5
These grounds contend that, as a result of the matters set out in grounds 1, 2 and 3, there has been a miscarriage of justice and the verdicts of guilty are unreasonable and cannot be supported. There is no need to deal further with them.
Conclusion on appeal against conviction
For the reasons I have given, I would dismiss the appeal against conviction on all grounds.
Sentence appeal - CACR 45 of 2008
The respondent was convicted of five counts of unlawful carnal knowledge of a child under the age of 13 years. He was sentenced as follows:
Count 1:3 years' imprisonment;
Count 2:2 years' imprisonment;
Count 3:2 years' imprisonment;
Count 6:2 years' imprisonment;
Count 7:3 years' imprisonment.
All sentences were ordered to be served concurrently and it was ordered that the respondent be eligible for parole.
The respondent was sentenced on 28 February 2008. This was prior to the amendment to s 41(4)(b) of the Criminal Appeals Act 2004 (WA) which has done away with the double jeopardy principle and its consequence that when resentencing an offender on a prosecution appeal a sentence will ordinarily be less than a sentence which should have been imposed at first instance. The amending section applies only to cases in which the sentence appealed dates after 27 April 2008. See The State of Western Australia v Richards [2008] WASCA 134; The State of Western Australia v Porter [2008] WASCA 154 [21] (Miller JA).
If the appeal against sentence is to succeed, the principles applicable to the appeal are those stated in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time‑honoured concepts' of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle', such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences. [62] (footnotes omitted)
The appellant was granted leave to appeal against the respondent's sentence on two grounds. They are as follows:
1.The learned sentencing judge erred in ordering that all the sentences be served concurrently, by failing to consider whether some degree of accumulation would more closely reflect the seriousness of the offending despite the offender's age and medical condition.
2.The learned sentencing judge erred in failing to consider the non‑parole period the offender would be required to serve in determining the degree of leniency that should be extended to the offender having regard to his medical condition.
The sentencing comments of the sentencing judge
When the sentencing judge imposed sentence upon the respondent he first turned to a number of facts which he considered aggravated the seriousness of the offences which the respondent had committed. The first fact was the age of the victim. The sentencing judge pointed out that although the complainant had reached puberty prior to the first act (which the trial judge wrongly categorised as an act of sexual assault) the complainant was still a child of very tender years, being only 11 years of age. The sentencing judge accepted that the first offence was not the first sexual experience of the complainant. However, the first act led to a long period during which the complainant was subjected by the respondent to sexual abuse. This abuse was only stopped when the complainant was well into her adult years and felt strong enough to terminate the 'relationship'.
The sentencing judge considered that the degree of participation, premeditation and the method of execution of the offences was 'at the highest level'. His Honour said:
I do not think I am putting too fine a point on my findings against you by saying that in my opinion you preyed on this girl. Whilst she was a willing participant and there is no suggestion that any of these sexual acts were forced upon her, she was nevertheless a girl in a particularly vulnerable state. She was young, she regarded you as her grandfather, she trusted you and she put herself, on a number of occasions, into your physical care, a trust which you breached and which I can only imagine has had a devastating impact upon her because I have no specific evidence of the effect that this has had upon your victim. (ts 741)
The sentencing judge pointed out that when the first offence occurred, the complainant was 11 years old and the respondent was in his late 50s. It appears in fact that he would have been approximately 60 years of age. The sentencing judge said that the complainant was vulnerable because of her family circumstances, lack of an ordinary home, and addiction to glue‑sniffing and drug use. She had no stability in her life. It was therefore particularly distressing that the respondent, who enjoyed a significant position in his community, took advantage of the complainant in the way in which he did.
The sentencing judge found other aggravating factors. He noted that there was no remorse or contrition. In fact, these could not have been aggravating factors. They were factors which meant that no mitigation could be afforded by the respondent. The sentencing judge noted that the respondent denigrated the complainant during the course of the hearing. His defence involved a deliberate attack on the character of the complainant with an attempt to portray her as a liar and a person of poor character. Whilst appreciating that the way in which the defence was run could not exacerbate punishment, the sentencing judge (effectively) held that there could be no mitigation of sentence because of the way in which the defence was conducted.
The sentencing judge noted that the respondent had no prior relevant criminal history. He looked for mitigating circumstances and was unable to find any.
The sentencing judge did however take into account the respondent's personal circumstances. He noted in particular that he had just had his 78th birthday which made him 'quite an old person to be convicted of offences of this type'. He observed that the respondent suffered from numerous health issues. They included diabetes, chronic renal failure, ischaemic heart disease, an under active thyroid and depression. He was in need of specialist medical care.
The sentencing judge made reference to the respondent's record of convictions. He found him not to be a person of good character because of that record. It was a record of mainly minor offences but dated from 1947 and included offences of stealing, damage, drunkenness, breaking and entering, resisting arrest and trespassing. For 30 years the respondent had not come to the attention of police, but in January 1997 he had been convicted of assaulting a police officer.
Although the respondent's record told against his being a person of a good character, a number of people gave character references speaking of the respondent's devotion to his people and his untiring work on behalf of those people. Some of the references spoke of the respondent as being a person of 'honour' but the sentencing judge stated clearly that he did not share those opinions. He was, however, prepared to accept that many people had spoken on behalf of the respondent and praised his work on behalf of the Aboriginal people of the State and Australia.
The sentencing judge considered that a sentence of a deterrent nature was called for. Specific deterrence was not required because 20 or 30 years had passed from the time of the offences and the respondent's health was such that he did not need a sentence which incorporated specific deterrence. There was, however, a need to impose a sentence which reflected the community abhorrence for the crimes which had been committed.
The sentencing judge began the sentencing process by taking a 'starting point' in respect of count 1 of 10 years' imprisonment. That was reduced by one‑third because the transitional provisions (since repealed) were then in place. The sentencing judge considered that the effective maximum was therefore 6 years 8 months' imprisonment and that was reduced to take account of the respondent's age and health so that a term of 3 years' imprisonment resulted.
In relation to count 2, the sentencing judge took a starting‑point of 8 years. He thought that the offence was not as serious as the first offence. This was because the respondent had not solicited the offence, but had taken advantage of the complainant who was looking for accommodation. The sentencing judge did not see the respondent as a predator in relation to this particular offence. From the starting‑point of 8 years, the sentencing judge brought the sentence down to a term of 2 years' imprisonment.
The sentencing judge regarded counts 3 and 6 as being in the same category as count 2. The same sentencing considerations were said to apply and the result was that terms of 2 years' imprisonment were imposed in relation to each count.
Count 7 was described by the sentencing judge as 'an act of cynical depravity'. His Honour was troubled by the fact that the complainant was a young Aboriginal girl who had been incarcerated after being in trouble with the police and had gone to the respondent as a person whom she regarded as a grandfather. She had asked him to bail her out of Longmore and, after he had done so, he took her by taxi to bushland adjacent to, or underneath, the Johnson Street bridge, where he had sex with her. The sentencing judge considered that the depravity of this offence meant that it required a term of imprisonment to be constructed in the same way as the sentence imposed on count 1. By adopting the same process as was adopted in relation to count 1, the sentencing judge reached a term of 3 years' imprisonment for that offence.
When turning to the question of totality, the sentencing judge took the view that the respondent's age and health meant that the sentences should be served concurrently. He imposed an aggregate term of 3 years' imprisonment. A declaration was made that the respondent should be eligible for parole.
Grounds of appeal
Ground 1
This ground contends that the sentencing judge erred in ordering that all sentences be served concurrently. No issue is drawn with the individual sentences imposed on the different counts and no question of the effect of the repeal of the transitional provisions (s 3 of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)) arises.
There is considerable substance in this ground. The criminal behaviour of the respondent was such that the imposition of totally concurrent sentences failed to reflect the degree of criminality involved. In my opinion, the sentencing judge placed too much emphasis upon the respondent's condition of health.
The respondent's health was of course an important factor in the sentencing process. However, unlike the case of The State of Western Australia v Henderson [2005] WASCA 89, there was no medical opinion on the question of the respondent's life expectancy. In particular, there was no suggestion that the respondent was, by reason of age and/or health, likely to die in custody. There was nothing to suggest that his health condition could not be properly supervised in a custodial setting.
Old age and ill health can justify (in the exercise of mercy) a sentence significantly shorter than might otherwise be the case. See Smith v The Queen (Unreported, WACCA, Library No 940285, 2 May 1994). However, the particular circumstances of the respondent's case were such that, on any view of it, an aggregate sentence of 3 years' imprisonment was manifestly inadequate. It should also be borne in mind that the respondent was not entitled to any discount by reason of his plea. He had defended the case at trial (as he was quite entitled to do), but the complainant was required to testify and undergo a thorough cross‑examination.
It is not clear why the sentencing judge considered that the respondent's age and health necessitated that the sentences of imprisonment should all be served concurrently. No reasons were given for reaching that conclusion and, in my opinion, there were insufficient reasons for an order for total concurrency.
It was necessary that the aggregate sentence imposed upon the respondent should fairly and justly reflect the total criminality of his conduct. See Jarvis v The Queen (1993) 20 WAR 201 per Ipp J at 207.
The criminality of the respondent's conduct was substantial. The sentencing judge's summary of the respondent's behaviour, which I have referred to at [150], indicates that he was a predator upon a young, vulnerable girl. She trusted the respondent and put herself in his physical care on a number of occasions, only to be the subject of sexual acts which constituted offences against s 185 of the Criminal Code as it then stood. The acts were repeated over a long period, although those which were charged were limited to a period of approximately 14 months. Nevertheless, each of the offences of which the respondent was convicted was a separate and discrete act.
The principles relating to double jeopardy are still relevant to this appeal. In the light of those principles, I consider that the sentences on counts 1 and 7 should have been ordered to have been served cumulatively, but all other sentences should have been ordered to be served concurrently with the sentence on count 1. I would set aside the sentencing judge's order for total concurrency and resentence the respondent accordingly. The aggregate sentence would then become one of 6 years' imprisonment. The order for eligibility for parole should remain, as should the date upon which the sentence takes effect.
Ground 2
This ground contends that the sentencing judge erred in failing to consider the non‑parole period that the offender would be required to serve in determining the degree of leniency that should be extended to him having regard to his medical condition.
Because I consider that ground 1 should be allowed and the sentence to be served by the respondent should be increased to an aggregate sentence of 6 years' imprisonment, it is unnecessary to deal with this ground.
The respondent will become eligible for parole after serving 4 years of the 6‑year sentence, which I consider appropriate.
Conclusion on appeal against sentence
I would quash the sentence imposed by the sentencing judge on 28 February 2008 and substitute in lieu thereof a sentence of 6 years' imprisonment. That is achieved by accumulation of the sentences imposed on counts 1 and 7, with an order that the sentences imposed on counts 2, 3 and 6 be served concurrently with the sentence imposed on count 1. The respondent remains eligible for parole. The date upon which the sentence takes effect is the date upon which the sentence was imposed; namely, 28 February 2008.
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