Dunn v The Queen

[1998] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A53 of 1997

B e t w e e n -

NORMAN JAMES DUNN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 3.20 PM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with my learned friend, MR D.M. RUSSO, for the applicant.  (instructed by Scammell & Co)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MS L.M. BOORD, for the respondent.  (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia)

GLEESON CJ:   Mr Kourakis, one of the points raised in this application has been overtaken by events, I think.

MR KOURAKIS:   Yes, and I abandon that ground, if the Court pleases.

GLEESON CJ:   Very well.  So we are left with the DNA?

MR KOURAKIS:   Yes, that is right.  If the Court pleases, of the remaining grounds, I deal firstly with the ground which challenges the approach of the Court of Criminal Appeal in deciding whether the jury ought to have entertained a reasonable doubt as to the guilt of the accused in considering the unsafe ground and with respect to that challenge, the special leave question is whether the court was required to approach the case on the basis that the jury had to be satisfied beyond reasonable doubt that certain expert evidence of DNA comparisons established that the assailant’s DNA was similar to the DNA of the applicant, that their profiles were similar.

GLEESON CJ:   Where do we find the erroneous portion of the judgment?

MR KOURAKIS:   If the Court pleases, at page 68 and from about point 2, the court considers the ground generally and if I can take your Honours briefly through that?  In the end it is my submission that that approach there contrasts sharply with the approach of Chief Justice Gibbs and Justice Mason in Chamberlain’s Case and the way in which they dealt with the controversy over foetal blood in that case.

GLEESON CJ:   But where is the special leave point?

MR KOURAKIS:   If the Court pleases, the special leave point is this:  whether a Court of Criminal Appeal, in considering this question, is required to approach the case on the basis that the jury would have to be satisfied of evidence such as this disputed forensic evidence, that it is safe to act on it in itself before placing it in the scales and determining whether the jury ought to have been left with a reasonable doubt.  In my submission, although the approach for which the applicant contends, and that is that the evidence would have to be proved beyond reasonable doubt before it could be put into the scales, is supported by the judgment of Chief Justice Gibbs and Justice Mason, and continued to be the case in the approach of Chief Justice Mason subsequently in Shepherd even.

GLEESON CJ:   I though there was some degree of explanation given to some of the things that were said in that case.

MR KOURAKIS:   If the Court pleases, I mean, with respect, is plainly so.  In Shepherd’s Case still in the end, simply with the directions that should be given and as it decided, the directions that did not need to be given about the jury being satisfied about separate items of evidence.

GLEESON CJ:   But as a general rule, in a criminal trial, what has to be proved and all that has to be proved beyond reasonable doubt is the ingredients of the offence charged.  In a circumstantial evidence case you do not have to prove each circumstance beyond reasonable doubt.

MR KOURAKIS:   No.  It, with respect, depends on the nature of the circumstance and the facts.  In Chamberlain’s Case, if your Honour pleases, Chief Justice Gibbs and Justice Mason specifically put to one side the question of the controversy over the foetal blood in determining whether there was sufficient evidence to support the verdict and their Honours did so because it was not possible to resolve the dispute between the experts other than by reasoning to guilt with respect to the other evidence.  If your Honour pleases, I ‑ ‑ ‑

GLEESON CJ:   I am just looking at the passage you referred us to on page 68.  That is where you say the error occurs?

MR KOURAKIS:   If the Court pleases, that is the commencement of the consideration.  The error itself appears from the bottom of page 68 over to page 69, and your Honours will see that after referring to some evidence, but evidence which, on the reasoning of his Honour Justice Cox, was not yet conclusive, his Honour turned to consider the importance of the DNA evidence and said of that, that:

together with all -

the abovementioned -

circumstances that the Crown’s DNA evidence against the appellant failed to be considered.  In deciding what weight, if any, they should give to that evidence, as a body of relevant circumstantial facts, in the light of Dr Atchison’s criticisms, the jury, (unlike Dr Atchison) was entitled to observe that, if there was a real risk of Mr Carroll’s tests and conclusions being invalidated by -

certain events, then:

it was a noteworthy coincidence that the results Mr Carroll arrived at were the same as the appellant’s genotype at the loci in question. 

In my submission, what his Honour Justice Cox is suggesting is that the disputes between Dr Atchison and Mr Carroll as to the validity of the tests and the conclusions based on those tests, could be resolved by reference to other circumstantial evidence, that evidence which was referred to at page 68.

HAYNE J:   But that is to assume that the jury’s collective eye is to be taken off the main game.  The main game is, has the Crown proved the elements of the offence?

MR KOURAKIS:   Yes.

HAYNE J:   That is not resolved, is it, by then segmenting the evidence and asking themselves of each disputed issue, “Has the Crown proved this evidentiary question beyond reasonable doubt?”

MR KOURAKIS:   With respect to many individual facts, that will be so, but the question of scientific evidence, particularly when it is disputed, is different and Chief Justice Gibbs and Justice Mason recognised that in Chamberlain’s Case and, with respect, I can best advance my arguments if I can take the Court briefly to precisely what they said in Chamberlain and then what his Honour Justice Mason said still in Shepherd’s Case.  In Chamberlain’s 153 CLR 521, but at page 559, after considering the controversy over whether the blood in the dashboard was foetal blood or adult blood, their Honours said this:

We do not doubt that if the question was whether there was evidence to support a finding that the blood in the car was foetal blood, the question should be answered in the affirmative.  But when the question is asked whether such a finding could safely be made it seems to us that the answer must be in the negative.  The conflicting evidence -

and this was conflicting evidence of eminent experts -

should have raised a doubt in a reasonable mind, and there is no other evidence that can resolve the doubt before a decision on the verdict is ultimately reached.

Now, if your Honours please, that passage is important, the recognition that there is no other evidence that could resolve the doubt before a decision on the verdict is ultimately reached because, of course, their Honours Chief Justice Gibbs and Justice Mason in Chamberlain came to the view that there was other evidence that more than adequately supported an ultimate verdict of guilt.  But their Honours, by putting aside the foetal blood evidence, must also have been of the view that those other circumstances could not resolve the disputed evidence as to foetal blood.

GLEESON CJ:   Was there not a judgment of Justice McHugh in a case where he commented on Shepherd?

MR KOURAKIS:   If the Court pleases, it is the judgment of his Honour Justice McHugh in Shepherd’s Case where he puts, with respect, the position which I adopt as to Chamberlain’s Case still standing as authority for the proposition that when a Court of Criminal Appeal approaches its task of investigating whether the evidence is sufficient, doubtful evidence which cannot be resolved by the other circumstances, should be left to one side. 

If it is convenient, I will take the Court now to Shepherd’s Case 170 CLR 573? If I may take the Court firstly to the judgment of his Honour Chief Justice Mason in Shepherd’s Case because his Honour the Chief Justice made it clear that the judgment in Chamberlain should not be read as insisting on proof beyond reasonable doubt of all circumstances.

GLEESON CJ:   Justice McHugh made it plain that he thought that Chamberlain was wrong in this respect.

MR KOURAKIS:   No.  Iif I can take your Honour the Chief Justice to Justice McHugh’s opinion in Chamberlain at page 594.  At about point 6 Justice McHugh said this:

In my opinion, Chamberlain is an authority only for the proposition that, in considering whether a verdict is unsafe or unsatisfactory, a court of criminal appeal must approach the case upon the basis that the jury had to be satisfied beyond reasonable doubt that each circumstance relied on to found the verdict was proved beyond reasonable doubt.  While the decision stands, it has to be followed in cases concerned with whether a verdict, based on circumstantial evidence, is unsafe or unsatisfactory.

If the Court pleases, the only modification, with respect, that might be made to that is one appearing from the judgment of Chief Mason in Shepherd’s Case where it is not every fact from which the inference of guilt might be drawn that must be proved beyond reasonable doubt, but those intermediate facts which will form an important foundation to that reasoning.  That appears from his Honour the Chief Justice’s judgment at pages 576 and 577 in Chamberlain.

GLEESON CJ:   The true principle is that stated by Justice Dawson on page 585 of Shepherd, is it not, the middle of the page?

MR KOURAKIS:   If the Court pleases, with respect, it is, but it is all a matter of what is characterised as the indispensable intermediate step and the indispensable intermediate step, even on Justice Dawson’s approach, which again, in my respectful submission, is directed more to the question of what the appropriate directions are, but even on that approach it is a question of what is an indispensable intermediate step and in this case, in the analysis of Justice Cox, in my submission, it is apparent that the validity of the DNA results is just such a step, an indispensable intermediate step.  Unless, therefore ‑ ‑ ‑

HAYNE J:   Intermediate to what?

MR KOURAKIS:   To the ultimate verdict.

HAYNE J:   To what finding?

MR KOURAKIS:   To the ultimate finding of guilt, the ultimate finding in terms of the elements that the applicant was the assailant.

GLEESON CJ:   There used to be a time when trial counsel used to ask trial judges to give what was called a Chamberlain direction, and I thought Shepherd established that a Chamberlain direction of the kind that counsel used to ask for would have been dead wrong.

MR KOURAKIS:   If the Court pleases, there is no doubt about that.  As it turns out, in this particular case the trial judge still gave a Chamberlain direction but that is not the ground which I address now.  The ground which I address now is in the approach of the Court of Criminal Appeal in making its own assessment as to whether the jury ought to have been left with a reasonable doubt.  In making that assessment, his Honour Justice Cox threw into the scales against the applicant evidence as to DNA matching which was disputed, and he threw it in on the basis that that dispute between the doctors could be resolved by the other circumstances in the case.

GLEESON CJ:   But the relevant principle is now established, is it not, that is that all that has to be proved beyond reasonable doubt are the elements of the offence and that it is wrong to instruct a jury that they have to be satisfied beyond reasonable doubt of all the facts relied upon by the Crown to establish the guilt of the accused?  However, as a proposition of fact, as Justice Dawson points out in Shepherd, there may be particular cases where you could not hold an element established unless you were satisfied beyond reasonable doubt of some specific fact.  That is just a question of fact, is it not, not a question of principle?

MR KOURAKIS:   If the Court pleases, whether as to that intermediate fact the Court of Criminal Appeal would have to be satisfied that it existed beyond reasonable doubt or at least that a jury could so find, is a question of principle.  His Honour Justice Cox appears to be of the view that with respect to its own, that is the Court of Criminal Appeal’s own assessment, it is not necessary for such indispensable intermediate steps to be proved beyond reasonable doubt.

GLEESON CJ:   Where do we find - the error is on pages 68 and 69, is it not?

MR KOURAKIS:   This particular error that I am now addressing the Court on, is at page 69 and it is where his Honour holds, from the first full sentence on that page:

In deciding what weight, if any, they should give to that evidence -

that is the disputed DNA evidence -

the jury (unlike Dr Atchison) was entitled to observe that, if there was a real risk of Mr Carroll’s tests and conclusions being invalidated by contamination or the stochastic effect or stutter or anything else, it was a noteworthy coincidence that the results Mr Carroll arrived at were the same as the appellant’s genotype at the loci in question.

In my submission, what his Honour is saying is that the disputes between the scientists can be determined in favour of the Crown expert because there is other circumstantial evidence which points to the accused and, in my submission, that is an error of principle contrary to the approach Chief Justice Gibbs and Justice Mason in Chamberlain and that that approach remains valid for the reasons explained, with respect, by his Honour Justice McHugh in Shepherd’s Case, notwithstanding the clear ‑ ‑ ‑

GLEESON CJ:   All he seems to be saying here, as I understand it, is that in considering the approach they take and the weight they attach to the DNA evidence, they are entitled to take into account that it was a coincidence, or that it would have been a “coincidence that the results Mr Carroll arrived at were the same as the appellant’s genotype”.  What exactly does he mean by that?

MR KOURAKIS:   What he means is that there were apparent results from Mr Carroll’s tests that the DNA that the assailant must have left matched the applicant’s, if Carroll’s tests were valid.  Atchison criticised them because, effectively, the quantities involved were so small that very few laboratories felt that they had the ability to accurately match from such small samples and that there was a great risk of error.  So that was the dispute.  What his Honour held was that you could resolve that dispute, not by deciding between the experts and the cogency of their views, but by reference to the extraneous material, the other circumstances in the case ‑ ‑ ‑

GLEESON CJ:   I do not see that at all.  The only other circumstance he seems to be referring to is the appellant’s genotype at the loci in question.

MR KOURAKIS:   Your Honour, the matching of the genotypes was the effect of Carroll’s evidence.  It was disputed that those tests were valid and that those conclusions of similarity could be drawn.  His Honour is suggesting that that dispute can be resolved by reference to the other circumstances.  It is my respectful submission that that is wrong because if that were so, their Honours Chief Justice Gibbs and Justice Mason would never have needed to have put aside the foetal evidence in the Chamberlain case because they could have resorted to all the other evidence which they found compelling as to Chamberlain’s guilt to resolve the dispute as to whether the blood was foetal or adult in the Chamberlain case.

HAYNE J:   Is what his Honour is saying amounting to say that if the tests were flawed it was an unfortunate or, as he put it, “noteworthy coincidence” that the flaws gave rise to tests that appeared to match the accused?

MR KOURAKIS:   Against whom there were other indications of guilt.

HAYNE J:   Is that process of reasoning faulty?

MR KOURAKIS:   In my submission, it is.  If it was not, if that process of reasoning was valid, then the Court in Chamberlain need never have put to one side the disputed foetal blood evidence because by reason of their confirmation of the verdict, they must have been of the view ‑ ‑ ‑

HAYNE J:   In the jury deciding whether the person who engaged in this conduct was the applicant, was it open to them to take to account the fact that there were some tests, said to be flawed tests, that were consistent with it being the accused?

MR KOURAKIS:   In my submission, not, your Honour, because the accuracy or otherwise of scientific tests conducted in the laboratory will not be affected, will not be enhanced, because it happens that quite independently of those tests other circumstantial evidence has been collected.  Whether or not those tests are valid, is to be decided on the face of the tests and the scientific evidence about them. 

Your Honours, can I address briefly the other challenge to the decision, and that relates to the directions that the applicant says ought to have been given by the trial judge in a case where it was apparent that the hotly disputed evidences to DNA comparison might well play a large part in determining guilt, but at the same time dealt with an area of science that was new, it was complex and was an area in which the accumulated commonsense of the jury was unlikely to enable the jury to fully evaluate the competing evidence.

In my submission, in those special circumstances and not in all circumstances of conflict between experts, a trial judge ought to warn the jury to take care that they may have difficulty, because of the very limitations to which I have referred, in deciding and choosing between the experts.  A trial judge, if of that view, ought to give the warning so as to avoid the risk of miscarriage in cases where, although there may be sufficient evidence to support the verdict, the danger exists that the guilty verdict was only arrived at because of the deceptive appeal in scientific evidence which, in fact, the jury were bound to have difficulty in evaluating.  The forms of directions, in my submissions, would approach and would be similar to those given by his Honour Justice Muirhead in Chamberlain’s Case, which were simply to point out the very difficulties and limitations to which I have already referred.  If the Court pleases, they are my submissions.

GLEESON CJ:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, if I could commence with my friend’s second point first.  In my submission there was no need in this particular case for a warning and, indeed, to put the need for a warning on the basis that there is conflicting scientific evidence, in my submission, is erroneous.  Clearly these courts have established that in certain cases warnings are required and, of course, there is a general discretion to give a warning if there is a perception by the trial judge of a risk of a miscarriage of justice.  But here what we had was evidence given by a witness for the Crown who conducted various tests using the DNA technology.  There was then a witness called by the defence, although who had not conducted the tests, criticised various aspects of the Crown witness’s evidence.

In my submission, if a warning was given to the jury on that basis alone, namely, that the defence has called a witness to challenge the Crown expert, in my submission, that assumes the validity of the criticisms and that, in my submission, is not the role of the trial judge.  It is very much for the jury to decide what, if any, weight they will place on any criticisms made of expert evidence, like other evidence.  In my submission, to give a direction like my friend seeks would be to assume that there was something in those criticisms and would be to usurp the function of the jury in doing that.  The other, in my submission, fundamental problem with my friend’s submission is that it is on the premise that the jury will not understand what was going on, would not understand the criticisms.  In my submission, there is absolutely no reason to start from that proposition, quite to the contrary.

For many, many years scientific evidence has been called, or expert evidence has been called, in cases and time and time again it is challenged.  But, in my submission, continually it is restated, as it was in Chamberlain, that it is the jury that are the deciders of the facts on that topic.  In my submission, to create a new category of warning, as indeed my friend is attempting to do in certain cases, would be inappropriate.  It, in fact, conflicts with the reason why court normally gives a warning.  The reason why a court normally gives a warning in a criminal trial is the nature of the witness, that there might be something about the witness that the jury would fail to appreciate without being told, for example, an accomplice who gives evidence; a jury might fail to appreciate certain aspects, for example, the motive, unless they were told.  This is not the sort of category we are dealing with in this particular case.

By the same token, in my submission, when one turns to the facts of this case, the direction given was very clear, very thorough and, indeed, very accurate.  All of the criticisms that were made by the defence were put to the jury.  It was suggested to the jury that they had to find things beyond reasonable doubt at various stages.  The jury were told to be careful, give careful consideration to the opinions before they acted upon them.  The nature of the direction in this case, in my submission, would have left the jury in no doubt as to what the criticisms were that were being made and that is sufficient in the circumstances. 

There is no need as a matter of practice to create a new category of warning simply because of DNA technology.  There is nothing about the technology that requires that by any stretch of the imagination and there is

nothing about this particular case which could give rise to any concern about that.  Your Honours, the problem also, with my friend’s suggestion about ‑ ‑ ‑

GLEESON CJ:   We have understood the arguments you make, thank you, Ms Abraham.  We will hear what Mr Kourakis has to say in reply.  Yes, Mr Kourakis?

MR KOURAKIS:   If the Court pleases, it is certainly not the applicant’s position that warnings need to be given in any case, nor would the provision of a warning assume the validity of the criticism.  It would simply recognise the risk of miscarriage which arises in certain cases of hotly disputed scientific evidence.  There is nothing, with respect, revolutionary about such a position.  It is a matter of controversy of them amongst legal circles and the public.  Royal commissions and fresh evidence appeals in this country and abroad have often raised this very matter.  To recognise the difficulty and provide for a warning against it, does not derogate in any way from the role of the jury, it simply enhances the position it can properly take in times of increasing scientific complexity.  If the Court pleases, they are my submissions.

GLEESON CJ:   The Court is of the view that the decision of the Court of Criminal Appeal is not attended by sufficient doubt to warrant a grant of special leave and the application is refused.

AT 3.45 PM THE MATTER WAS CONCLUDED