Galli v The Queen

[2003] HCATrans 506

[2003] HCATrans 506

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S72 of 2003

B e t w e e n -

JUAN CARLOS GALLI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 12.01 PM

Copyright in the High Court of Australia

MR W.P. LOWE:   If your Honours please, I appear for the applicant together with MS A.D. RONAN GIBBONS.  (instructed by Chahine & Associates)

MR R.D. COGSWELL:   If the Court pleases, I appear for the respondent with my learned friend, MS J.A. QUILTER.  (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Lowe.

MR LOWE:   On appeal the Court of Criminal Appeal found that the following errors were made at the trial of the applicant.  First, evidence was expressed in the form of a percentage, which is known as the likelihood – or it is in a form of what is called a relative chance of paternity, which is the likelihood that the applicant was the father of the foetus, was referred to by the trial judge in his summing up.  Now, the particular statistic that was referred to by the trial judge and which the jury heard was a percentage of 99.9999.

KIRBY J:   Now, that did go before the jury ultimately, did it not ‑ ‑ ‑

MR LOWE:   It did, indeed.

KIRBY J:   ‑ ‑ ‑ in the police record of interview?  It was suggested at one stage in the written submission that it was something that was said in the voir dire, but what was said in the voir dire was based upon the tape which was admitted into evidence and went before the jury.

MR LOWE:   Yes.  I will get to the prosecutor’s fallacy which was in fact committed in this case, but the trial judge did refer to evidence that was on the voir dire but not before the jury, which was the 99.9999 per cent basis.  That is found at application book page 66.

KIRBY J:   Could you just pause for one moment, get this clear in my mind.

MR LOWE:   Yes.

KIRBY J:   There is no question but that the disabled woman was pregnant and that the abortion took place and that a test was taken.

MR LOWE:   Yes, there is no ‑ ‑ ‑

KIRBY J:   There was no question that only five people had access to her and could have caused the pregnancy.  Two of those people were themselves disabled patients.

MR LOWE:   Yes, not tested ‑ ‑ ‑

KIRBY J:   It was accepted, as I understand it, that they could not, because of supervision and other reasons, have had access to the woman.  Two of them were also carers.  They were tested by DNA analysis and that excluded them in both cases.

MR LOWE:   Yes.

KIRBY J:   That, therefore, left only your client as the fifth person and the DNA tests indicated that there was a correlation, indeed a high correlation, or chance that your client could have been the person responsible for the pregnancy.

MR LOWE:   Yes, that is a fair assessment of the evidence that was led at trial.

KIRBY J:   Now, if that is so ‑ ‑ ‑

MR LOWE:   The Crown case is DNA evidence plus evidence of opportunity.

KIRBY J:   I realise that now.  You will remember that at the end of the Crown’s submissions before this Court it is said that even if you leave aside the DNA evidence and what was said about it, in the end by that process of exclusion it is a very powerful, indeed overwhelming, case of your client’s guilt.  Ultimately in these matters, unless there is some issue of general principle which elevates it, we have to look to whether or not a miscarriage of justice has occurred, and that tends to indicate very, very strongly – very, very strongly – that no such miscarriage has occurred in this case.

MR LOWE:   I think the Court of Criminal Appeal Chief Justice found that there was a miscarriage of justice because of the evidence that was led at trial, together with the failure of the trial judge to assist the jury with a technical assessment of the probabilities that DNA ‑ ‑ ‑

KIRBY J:   That is a miscarriage of a technical and legal kind, but if you are looking at the miscarriage of the ultimate outcome, then the point made at the close of the Crown’s submissions to this Court is that whatever mistakes might have happened on the way, the ultimate outcome is overwhelmingly, strongly indicative of the guilt of your client and that, therefore, no such miscarriage has occurred as would invite the intervention of this Court.

MR LOWE:   Yes, your Honour.

KIRBY J:   You see the pressure we work under, the number of cases we can deal with and, therefore, it is natural for the mind, like quicksilver, to go to that sort of issue in these cases.

MR LOWE:   Yes.  It is a difficult case.  The Chief Justice, I think, in the very end of his remarks in judgment, found writing the judgment a very difficult judgment.  It was finely balanced.  What you have in a case like this and in many cases of DNA is the evidence of DNA itself, generating what is called the likelihood ratio which is before the jury, which in this case, at the end of the day, was it was likely that the applicant was the father on the basis of a one in 2.4 million.  That is the likelihood ratio that was before the jury.  I will address your Honours in the fullness of time about that, the likelihood ratio, but what we have here is DNA evidence and evidence of the applicant at trial, which is a denial.  Generally, that is all you would have:  an explanation, whether it is accepted or rejected by the jury, as against the overwhelming nature of the evidence, that is DNA evidence today, in courts that is led on a day‑by‑day basis.

Now, all the applicant can do is deny it, if that is his explanation, and that denial goes to contradicting, as best the applicant do, the inferences that one draws from DNA evidence as interpreted by forensic biologists and the like.  That denial also goes to controvert evidence of opportunity because he is denying that he was the person involved as the father.  Now, the verdict of the jury is either a rejection of that explanation or it is an assessment of the applicant at trial has failed to raise a doubt in their minds.

Now, it is the nature of DNA evidence that it will tend, particularly in cases of this sort, to overawe a juror.  At the heart of our submissions in this case is that there has been a failure of the trial judge to give proper directions to a jury in cases of this sort.  I might just say at this stage that I do not think the pattern book in New South Wales has a model direction for DNA evidence in cases associated with what we say is the prosecutor’s fallacy.  That gives rise to an issue of national concern, not just New South Wales.  There seems to be – as your Honours may know from the material which I filed with the Court yesterday, an article which was published in the Law Society Journal by Dr Atchison who is the head of the Molecular Biology Department at Monash, that the issue of the prosecutor’s fallacy is one where minds may differ about when the fallacy has been committed.

Dr Atchison believes and opines in that article that President Mason in the case of R v GK has fallen into error in the prosecutor’s fallacy, as has the Chief Justice in the case of Galli.  That is because the likelihood ratio that is given by Mr Goetz and other molecular biologists is commonly used in trials in New South Wales to give an assessment of the likelihood of fatherhood, or the likelihood that the person who left the crime stain at the scene is the person who is the source of that material.

I have got ahead of myself, but the general thrust is the problem of the evidence that is led by molecular biologists today in New South Wales courts and the general lack of directions, or model directions, to assist trial judges in summing up these sort of matters for the jury.  It is also an issue that concerns accuseds generally that if we are to have an adversarial system where an accused can put the Crown to proof on matters relevant to proof of guilt, their explanation such as it is must be given sufficient weight in the summing up by appropriate directions by the trial judge so that the jury can properly assess their explanation; whether to accept it or reject it.  The absence of such a trial direction or assistance from this Court is giving rise to difficulties.

It may well be that the prosecutor’s fallacy is being committed by police officers, as happened in this case when interviewing the accused – and I do not concede, as the Chief Justice found, that because the prosecutor’s fallacy is committed by a police officer, it is not as significant as the prosecutor’s fallacy which was committed by an expert or by the trial judge.  In my respectful submission, no matter where the prosecutor’s fallacy is committed, it does give rise to problems with the jury’s assessment of the evidence of particularly the applicant’s case, and it involved in this the way that they view the Crown case, vis-à-vis the applicant’s case, or the accused’s case.  Do your Honours wish me to take you through the general evidence in the trial?

McHUGH J:   No.  You have to face up to the fact that the strength of the prosecution case was overwhelming.  There was no dispute as to the accuracy and the admissibility of the paternity index figure, nor was there was any dispute that only five men could possibly have had sexual intercourse with the woman involved, that two of those men were profoundly disabled and under constant supervision while the other two were excluded by DNA testing.  The case against your client was almost irresistible.

MR LOWE:   On the application of the proviso this is the first time that the proviso has been applied.

KIRBY J:   We realise that, but you see we have to look for cases where there is utility in our intervention.  If there is no real chance that you are going to win the appeal, then everything we are saying is a lot of obiter and it is not really extremely helpful for the profession.  Cases that present sharply divided issues where they can be decided either way are the cases in which we sometimes use the expression “appropriate vehicle”.  They are the cases in which you refine the issues and can express them well, whereas this case is just such – I mean there were so few people and two of them were excluded for one reason, two for the other.  That just left your client.  Even if his DNA had not been available, it would have been an overwhelming Crown case.

MR LOWE:   But DNA evidence does not prove identity.  That is the essential problem with DNA evidence.  If, as the Chief Justice found, it was DNA evidence alone, the case may not have reached trial…..But there is a fallacy of reasoning which says that the DNA can be used as a positive tool for identification.  All it is is exclusionary, and it may be on a statistical basis that you have two individuals working side by side who have the same DNA.  The point is no one knows ‑ ‑ ‑

KIRBY J:   I am familiar – there was a case in England where it was one in, I think, 20 million or one in 15 million, but they happened to find the person who was the person responsible for the crime, and he had had that same DNA match.  It was a very, very small risk, but he was found.

MR LOWE:   Yes.

KIRBY J:   So I am aware that that can happen – of course it can happen – but these were very peculiar closed circumstances.  That is what against you in this case.

MR LOWE:   Yes, I accept there are closed circumstances which may prevail against me at the end of the day in this case, a difficult case, but at the end of the day it was a four‑day trial.  The issue is whether the jury were assisted in their deliberations by proper trial directions relating to the applicant ‑ ‑ ‑

KIRBY J:   Well, it has been found that there were errors.  This is a proviso case.

MR LOWE:   Yes.

KIRBY J:   It has been found.  We do not have to re‑find that.  The Court of Criminal Appeal has found that.

MR LOWE:   I just rely on my submissions then about ‑ ‑ ‑

KIRBY J:   They are very good submissions, I might say, and very helpful.  It is a pity in a way that this is not a more appropriate vehicle for the issues because the issues are interesting and important.  But you do not get them

refined in the way you do where it is a case which could go either way.  This does not seem to me to be such a case.

MR LOWE:   Yes.  I cannot assist you any further then.

McHUGH J:   Yes, thank you, Mr Lowe.  Yes, we need not hear you, Mr Cogswell.

In this matter the Court of Criminal Appeal found errors in the instructions given to the jury by the trial judge.  Those errors raise issues of potential importance for the instructions to be given to juries concerning the use juries can make of DNA evidence.  In other circumstances those questions would warrant the attention of this Court to the so‑called prosecutor’s fallacy in dealing with such evidence. 

However, we are not convinced that, in the particular circumstances of this case, the applicant would have reasonable prospects of setting aside the judgment of the Court of Criminal Appeal.  The evidence against the applicant, even without the evidence of his DNA analysis, was extremely strong.  We are not convinced that a miscarriage of justice has occurred that would warrant the intervention of this Court.  Accordingly, special leave is refused.

AT 12.18 PM THE MATTER WAS CONCLUDED