Howson v The Queen - [2007] WASCA 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HOWSON -v- THE QUEEN [2007] WASCA 83

CORAM: ROBERTS-SMITH JA
BUSS JA
MILLER AJA

HEARD: 16 FEBRUARY 2007

DELIVERED : 23 APRIL 2007

FILE NO/S: CACR 223 of 2005

BETWEEN: JYE MATTHEW HOWSON
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MULLER DCJ
File No  :IND 1400 of 2004

Catchwords:

Appeal - Criminal law and procedure - Appeal against conviction - Importing not less than commercial quantity of cocaine - Bulge under appellant's trousers - Nothing found on search - Package subsequently found in interview room - Whether proved that appellant was in possession - Whether appellant imported the prohibited drug - DNA evidence that appellant "not excluded" as source of trace DNA - Additional expert evidence on appeal - Whether "new" or "fresh" evidence

Appeal - Criminal law and procedure - False denials that appellant carrying drugs - Direction that jury may take false denials into account as circumstantial evidence - Whether misdirection - Whether Edwards or Zoneff direction required

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr L M Levy
Respondent: Mr H G Dembo

Solicitors:

Appellant: Laurie Levy & Associates
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Beamish v The Queen [2005] WASCA 62
Broadhurst v The Queen [1964] AC 441
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Kuruma v R [1955] 1 All ER 236
Lawless v The Queen [1979] HCA 26; (1979) 142 CLR 659
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Nestorov v The Queen [2002] WASCA 356; (2002) 137 A Crim R 310
R v Christie [1914] AC 545
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zheng v The Queen (1995) 83 A Crim R 572
Zoneff v The Queen [2000] HCA 28; 200 CLR 234

ROBERTS-SMITH JA: This is an appeal against conviction on grounds of fresh or new evidence and claimed misdirections about the evidentiary use of false denials or lies.
The appellant is an Australian citizen. He left Australia through Perth Airport on 14 August 2003. He went to Bali. He returned to Australia on 19 August 2003, arriving at Perth International Airport about 11.30 pm. Having collected his baggage from the carousel in the arrival hall, he presented to the Customs baggage examination area. He immediately struck the Customs officer as being very confident and over‑friendly. In the course of preliminary routine questions, the appellant was observed by Customs officer Ms Mylonas to become nervous. He began sweating and fidgeting. She noticed the passport on which he was travelling had been issued on 12 August, his airline ticket had been purchased on 13 August and he had travelled to Bali on 14 August 2003. In response to her questions the appellant told her he was a builder and having just finished a couple of jobs he had decided to go overseas on holiday.
Another Customs officer, Mr Westaway, began to ask questions of the appellant, who appeared to become even more nervous and fidgety. He was wearing three‑quarter length pants. Westaway observed there was a slight bulge in the upper groin region of his pants, just underneath the beltline. He pointed to it and asked the appellant if he had anything there. The appellant said "No, look" and lifted his shirt to expose his stomach area. That did not expose the area where the bulge was. Westaway said "I think you have something there" and pointed to it again. He said he wanted to conduct a "frisk search" because he thought the appellant may be concealing something on his body.
The appellant became angry and told the Customs officer he had no right to do that, it was not legal and he asked if he needed his lawyer. Westaway said he would get the detention officer who would explain the appellant's rights. That was Officer Nicholas Whalley. Westaway went and spoke to Whalley and they both returned to the appellant. Whalley said he wished to conduct a frisk search of the appellant, and gave him a card explaining his legal rights. They informed the appellant he could choose to have the search done at the baggage table or in a private room and that he had the right to refuse to be searched. The appellant read both sides of the card. He said "You're not taking me to a private room", so Whalley told Westaway to commence the frisk search there. Westaway did so. He felt a "bulge‑like package" in the appellant's upper groin region. He described it as "sort of hard but a bulge. Something was sticking out that fitted my hand" (AB 1/81). He asked the appellant what it was. The appellant said it was his stomach. The officer touched and felt it again and said "It's not your stomach. Produce the item". His evidence was that he made that request pursuant to s 219 of the Customs Act 1901 (Cth). The appellant said, in an aggressive tone, "It's nothing. You touched my balls. What are you, a poofter?" Westaway then gave the appellant a formal caution and asked the appellant whether he understood it. The appellant said "No, I don't understand. What are you, a cop or something? What are you going to do to stop me from walking out of here? Get fucked".
Westaway said he was not a police officer but a Customs officer and he would read the appellant's rights to him again, which he then did. The appellant then said he understood and added: "So what are you going to do? You try and do anything and we'll see what happens. I'm a boxer. You want to go for the title?"
Whalley then asked the appellant whether he was refusing to produce the item. The appellant responded "It's my baby, my stomach. I have nothing".
Westaway said to Whalley that he definitely felt a package in the appellant's upper groin. The appellant then asked for a drink of water and a cup of water was brought over to him. Whalley then told him that if he was refusing to produce the item, they would have to upgrade the search to a strip search. The appellant said he wanted to call his lawyer. The officers told him that if he gave them the number, they would call the lawyer for him. He did not do so. Whalley then told the accused that they were formally detaining him for a strip search. He instructed the appellant to follow him to the interview room. The two officers escorted the appellant to the interview room, which was approximately 20 metres away.
The room is approximately 2.3 metres long and 2 metres wide.
About one metre to the left of the entry door was a table, with one side along the long wall. On the other side of the table was a chair. That was where Whalley sat, with his back to the short wall across the top of the room. Moving clockwise around the room, in the next corner was a cupboard type of fixture which contained video‑recording equipment. Next to that and running along the long wall opposite the entrance door, was a tall cupboard. Alongside that, also against that long wall, was a chair. That was close to another door set in the short wall to the right of the entry door. That other door led to a secure toilet. Between the door to the toilet and the entry door was another chair, with its back to the short wall opposite the recording equipment. That was the chair in which the appellant sat. The photographs (exhibit 7) show the chairs to be of tubular steel construction, so that it is easy to see through and under the legs. The two chairs to the right of the entry door are no more than a metre apart. These details are apparent from plans of the room (exhibit 4 and 4a) and a video‑recording of it (exhibit 6).
When the three of them entered the room, Whalley moved to the seat where the table was, the appellant sat on the chair just inside and to the left of the door and Westaway stood at the door. The appellant was handed another card which explained his rights in relation to strip searching and he appeared to read that.
When they first went into the room, each of the officers looked around it to make sure there was nothing that ought not to have been there and that the appellant could use as a weapon. They visually checked the table and the floor, including under the empty chair. There was nothing there.
Whalley asked the appellant if he understood his rights. The appellant said "I want to call my lawyer. I will get him down here, right now and you are fucked, you and you" pointing at both Whalley and Westaway. They again offered to call the lawyer for him but he did not give them the number. He said "I'm not taking my clothes off. If you want to go for the title, go ahead. I know who will be worse off". Whalley told him to calm down and explained why they wanted to do the search. He told the appellant that Westaway had seen a bulge at the top of his groin region, they had advised him to produce what was there and he had refused to do so. He said if it was the appellant's stomach, he could just show them and they could let him go.
The appellant said:
"I don't give a fuck. It's my stomach. I'm not going to show you. If you don't like it, too bad. You can go and get fucked. Get my lawyer down here now. I want your names. Give me your names. You guys are fucked."
Again, they told the appellant that if he would give them his lawyer's name and number they would call him and ask him to come down. The appellant said:
"As if my lawyer would be awake at this time of night. Fucking hell. Yeah, as if he's going to come down here."
Whalley asked if he was to take it that the appellant was refusing consent for a strip search. The appellant said he was. Whalley said they would contact a Justice of the Peace ("JP") who would make the decision.
Shortly afterwards another Customs officer came into the room. That was Officer Bass. He put the audio and videotapes in and started the recording equipment. The appellant was aggressive. Bass left the room. The appellant got out of his chair and turned the tapes off. Whalley restarted them and as he left the interview room briefly, Bass returned. Bass offered the appellant a drink of water but he declined. The appellant said "Why call a JP? You'd better call an ambulance because you'll be needing one". Having said that he got out of his chair again and turned the recording equipment off again. Bass attempted to restart it but then the appellant knocked his arm out of the way and stopped him. He said to Bass "Take a shot at the title. You press it again and you'll take a shot at the title". He then went and sat on his chair. They did not turn the video back on. Most of this can be seen on the video‑recording (exhibit 6).
While they were waiting for the JP to arrive, the appellant's behaviour was still verbally aggressive and threatening.
When the JP arrived, Westaway left the room and went elsewhere to prepare his statement. The JP said he wanted to speak to the appellant alone, so Whalley and other Customs officers remained outside the room while he did that. No more than five or six minutes later the JP opened the door and came out. He spoke briefly to Whalley for about half a minute. He told Whalley the appellant had agreed to let the search go ahead. No‑one else went into the room from the time the JP was left there with the appellant to the time Whalley went back in after the JP left. The appellant was there alone while the JP was talking to Whalley. The door to the room was self‑closing and a swipe card was needed to open it.
Whalley went back into the room and turned the video‑recording equipment on. He again explained the appellant's rights to him and the procedures that would be followed. The appellant asked him to turn the video‑recorder off. Whalley did so. These exchanges appear on exhibit 6. However, the appellant had nothing further to say, so Whalley turned the tape on again. Another Customs officer and an Australian Protective Services ("APS") Officer were called into the room and at Whalley's request, the appellant pulled his pants and undershorts down. He was wearing two pairs of boxer shorts under his trousers. There was no extraneous item to be seen. Whalley told the appellant he could go. The appellant then asked if he could use the toilet. Whalley agreed, accompanying him into the secure toilet, and then escorting him back into the interview room. As he did so, Bass was walking into the interview room from the other door. Bass said "What's that under the chair", bending and looking under the chair against the cupboard, near the chair in which the appellant had earlier been sitting. The appellant immediately said "I don't know what you're talking about. You probably planted it".
Under the chair, almost completely in the angle between the wall and the cupboard, was a black package. It can be seen in the photographs exhibit 7. All the Customs officers said it had not been there earlier. The JP was called back by Customs officers and asked to return to the doorway. He said in evidence (AB 2/211) that he then saw something that had not been there before:
"What did you see then that wasn't there before?‑‑‑There was a black plastic package under the chair I was sitting on on the rear right‑hand leg if you were viewing from the seated position or the rear left hand leg if you're looking at it.
That package, you say it hadn't been there before?‑‑‑No.
Had you looked to see if there was anything under the chair that you were going to sit on?‑‑‑No, I scanned that area and there was nothing - because the chair was a metal chair with very thin legs and nothing could be hidden under there. It was quite open."
Bass instructed the APS officers to come into the room and directed the appellant was not to be allowed to touch the package. Whalley called Australian Federal Police officers who subsequently arrived.
The package was later taken apart to ascertain what was in it and for testing. However, what was said to be an exact replica was made and tendered as such, as exhibit 8. The package is basically rectangular, but tapers somewhat at the bottom, like the front panel of a pair of men's jockey shorts. It measures 22 cm across the top with straight sides down 11 cm and then tapering sides for another 8 cm, and is 11 cm across the bottom. It is quite flat - the exhibit is approximately 1 cm or less thick, although its thickness would obviously depend upon what it contains.
What the package found in the interview room did contain was revealed on analysis to be 195.2 grams of cocaine with a purity of 78.5 per cent. Federal Agent Stoykovski testified that would have had a street value of $136,000.
The only issue at trial was whether or not the appellant had ever been in possession of the package. In his opening to the jury (AB 1/48 ‑ 50), counsel for the appellant said that was all that was in dispute.
The crux of the Crown case was that when the JP entered the room the package had not been there and that it must have been placed under the chair by the appellant when he was briefly alone in the room after the JP left and before the Customs officers returned. In addition to those circumstances, the Crown relied upon the evidence of the appellant's demeanour in his dealings with the Customs officers and what were said to be his false denials of having anything on him. The Crown also led evidence of analysis of DNA found on the package.
The grounds of appeal are:
"Grounds of Appeal Against Conviction
1.Since the conviction of the Appellant, new or fresh evidence has become available which is of such significance that it gives rise to a significant risk that a miscarriage of justice has occurred.
Particulars
1.1the Prosecution led evidence from an expert witness, Ms Mojca Keglovic that the comparison between the DNA sample recovered from the package containing the drugs and the DNA profile of the Appellant resulted in her concluding that she could not exclude the appellant as a donor of the DNA recovered from the package, based on:
a)The statistical probability of the appellant being the source of the DNA recovered from the package was somewhere between 1:91 to 1: 138.
b)The 95% confidence interval was 1: 112.
1.2On 21 February 2006 the solicitors for the Appellant received a report of Dr Brian McDonald, DNA expert. The report included the following conclusions:
a)The low level partial DNA profile was consistent with secondary transfer.
b)The limited DNA profile did not exclude the Appellant.
c)The DNA profile indicated that it was a mixed profile (i.e. came from more than 1 person)
d)The true calculation to be relied upon in relation to the probability that it was consistent with coming from the Appellant was that 1 in 36 of the population would not be excluded from the sample.
2.The learned trial Judge erred in law by directing the jury that the Appellant's 'allegedly false denials of having anything incriminating on him, may be relevant in your view to prove his state of mind at the time of the alleged importation of the drugs'.
Particulars
2.1The false denials alleged by the Prosecution were the denials by the Appellant that he had the package containing the prohibited drugs on him at any time.
2.2In order for the Prosecution to prove the falsity of the denials by the Appellant that he had anything on him that was incriminating, the jury were first required to decide the primary issue being that the Appellant was indeed in possession of the package containing the drugs.
3The learned trial Judge erred in failing to direct the jury adequately as to the use to be made by them of the false denials said to have been made by the Appellant.
Particulars
3.1The false denials were effectively put before the jury by the prosecution as lies told by him out of a consciousness of guilt.
3.2The learned trial judge erred by not giving to the jury a direction of the type approved by the High Court in Edwards v R (1993) 178 CLR 193 and restated in Zoneff v R (2000) 200 CLR 234.
3.3The jury should have been directed:
a)As to the identity of the specific lies relied upon by the prosecution as evidence of guilt;
b)That the lies must have been told out of a consciousness of guilt before they could be used as proof of guilt; and
c)That there may be reasons for the telling of a lie other than consciousness of guilt."

Ground 1: DNA evidence - "fresh" or "new" evidence

Ms Mojca Keglovic is a forensic scientist employed by the Australian Federal Police. She received DNA reference samples from the JP and the appellant. She also examined the package. She was able to obtain a partial DNA profile from the outside of the package. She described a "full profile" as having 10 markers (including the sex gene). If one or more of the markers (which are effectively the points of comparison) is missing, the profile is described as "partial". In this instance, she found eight markers were present, but only two were sufficient to be given a statistical weighting - that is only two were reportable. In short, there was only enough DNA for a comparison at two loci. These were D8 and D5.
From her analysis she concluded the JP was excluded as a possible contributor, but the appellant was not excluded. She said (AB 1/17) that the results:
"When considered in isolation from other information provides weak evidence to support the proposition that the donor of the reference sample said to belong to Jye Matthew Howson is the source of the partial DNA profile obtained from the wet/dry swab of the black tape."

She explained that there were differences between the trace sample and the reference sample from the JP, so that he could not have been the source of the DNA on the package; but there was no difference between the two markers on the trace sample and the appellant's DNA, so that he could not be excluded as the possible contributor of the trace sample.
Counsel for the appellant at trial objected to the DNA evidence on the ground that on Ms Keglovic's own evidence its probative value was weak, and as, in his submission, it did not satisfy the "probative value" test and was prejudicial to the appellant, it ought to be excluded (AB 1/11-12). The way in which the objection was expressed by counsel suggests he was seeking exclusion of the evidence in the exercise of the Judge's discretion (R v Christie [1914] AC 545, 559; Kuruma v R [1955] 1 All ER 236), although he did not expressly say so.
In light of the objection the evidence was taken on the voir dire following empanelment of the jury, but before the crown opened.
The first point to be made about this is that the word "weak" as used by Ms Keglovic was not an expression of her opinion about the cogency of the DNA evidence, but a classification or categorisation of statistical probabilities. She explained it this way (AB 1/18-21):
"---I use the word 'weak' because that was the word we used in our laboratory to associate a certain number to - after we do our statistical calculations. Now, because I was only able to do statistical calculations on two of those sites, looking at the relative frequencies of the two alleles at each site. I multiplied those together and I got the number 112; one in 112. Now, because I couldn't use the other six sites for statistical weighting the conclusion I could only give was weak however there are [sic] other information there that I can say that the donor of the reference sample could not be excluded as being the source of this DNA profile of the crime scene.
So one of the categories in your - at the time you were using, I understand, an in-house - if that's the proper terminology?--- Just an in-house reference table.
All right. So one of the categories that you would use in a DNA - you have told us a little bit about weak, what are the other categories?---We use weak; we use moderate, being slightly stronger; we use strong; very strong; and extremely strong.
Is there anything lower than weak, for example, not the DNA?---If there is no DNA, no statistical way that we can place for the comparison, we will say that, yes.
I hope I'm putting this question properly to you, but I think you know what I mean, is weak evidence your opinion or a classification?---Weak evidence is a word, a classification that we use to describe the amount, the number that we determine at the end of the statistical analysis.
And in this instance, just looking at your report, it seems that your point - you have headed something 'point estimate' using the ACT database. Is that the in-house base you were talking about?---That's the database we use to do - -
That was 1 : 112?---That's right.
Could you just explain to this court what 1 : 112 means and what the point estimate means?---1 : 112 means that if you grab at random 112 people from anywhere, you will get one person that could possibly have that DNA profile. If you went and grabbed another 112, you may get one person - on average each group of 112, you get one person that gets that profile.
MULLER DCJ: Where is that selection of 112 persons drawn from? Is it Australia wide?---It's at random. Just randomly. It could be from Perth. It could be from Canberra. It could be from somewhere outback. It could be anything. It's a random number, but because - - -
Outside Australia or only Australia?---We generally look at only Australia.
It's 112 within Australia?---Yes.
DEMBO, MR: This next part of your report, you have got a heading, '95 per cent confidence interval.' What does that mean?---That means that we've got 95 per cent confidence that the true value lies between the lower number and the higher number so in this case the true value will lie between 1 : 91 and 1 : 138.
So then there's, what, the 1 : 112, somewhere in between?---It's the 50 per cent mark, yes.
I understand from our discussion this morning that in about April this year, I think, a relatively - or a new publication came out with regard to DNA?---When I had a look at the book, it actually came out in early 2005 and we did - our laboratory did the statistical course actually in February.
February, okay. This year, 2005?---Yes, Yes.
Have you heard of the authors of that book?---Yes.
First of all, what is the book?---The book is a Forensic DNA Evidence Interpretation and it goes through statistical calculations in interpreting that evidence to the general - world.
To your knowledge and in your experience, is that book now widely used in Australia?---Our laboratory's accepted it and I know that the authors have been going around to every laboratory within Australia to promote their book and have that used as the standard.
Have you read the book?---Not from cover to cover.
Okay. The part that you have given evidence on today, does the text conform to your general scientific knowledge of what DNA is and how it should be extracted et cetera?---The book helps me with my statistical calculations and gives me some information on what you have just mentioned.
All right. Now, since we spoke this morning, you have had a look at the statistical information in that book. Is that correct?---That's right.
Were you to have used that book and not the ACT database for your calculations in this case, would there have been any difference in the calculation, the 1 : 112 calculation?---The actual number produced would be the same. However, if we used - if I referred to the book and we use a verbal scale for the number we produced, it'd actually be moderate now - we would call it moderate and - - -
MULLER DCJ: The classification would be moderate as opposed to weak?---Yes.
All right.
DEMBO, MR: Were you to have filed your report today - it's a hard question - what would you have said?---The difference would be that I would not say weak, I would say moderate.
And again, even the moderate, that's not your opinion, you're just going on statistical values?---That's right."
The trial Judge ruled (AB 1/23-24):
"… It is clear from the evidence of the expert that out of the 10 markers that are normally looked for only eight were present in this case. Further analysis revealed that only two of those sites could be used for the statistical conclusions that were eventually arrived at. In relation to those two sites they were considered to be just above the threshold to enable a statistical conclusion to be reached.
The question I have to decide is whether there is sufficient evidence on which a jury might infer that there was a match between the two profiles; that is to say, between what the witness described as the reference sample and the crime scene sample. Mr Levy has submitted that on the statistical conclusions reached by the witness approximately 169 to 220,000 people in Australia might have the same DNA profile as exhibited in the samples examined by the witness.
The witness relied upon the material available to her and said the accused could not be excluded from the profile she obtained. She also emphasised that you could not find any difference between the crime scene sample and the reference sample. It is quite clear from the evidence that has been given that this DNA evidence, if it were the only factor before the jury, would not be sufficient to enable the jury to conclude that there was a match sufficient to implicate the accused in any way.
If it were the only evidence against the accused, I would in the exercise of my discretion, exclude it because in my view it would not carry the necessary weight to enable a jury to conclude beyond reasonable doubt that the DNA lifted from the crime scene sample matched that of the accused. However, it is not the only evidence against the accused, it is but one factor in the circumstances upon which the prosecution relies.
What must not be lost sight of in this case is that the accused person was said to be in possession of the package that was found on the floor in the room. It is alleged that he and only he could have taken that package into the room. The other person who was in the room at the time can be excluded on the DNA evidence. When this DNA evidence, whether it is categorised as weak or otherwise, is looked at in that context it becomes one of the circumstantial factors which, in my view, the jury is entitled to consider in deciding whether on the whole of the evidence the prosecution has proved that the accused knowingly imported the cocaine into this country.
Consequently I would rule it to be admissible …" (My emphasis).
The evidence was accordingly led at trial.
In his summing up the trial Judge dealt with the DNA evidence in the course of his directions about circumstantial evidence. He said (AB 2/377‑378):
"… The circumstantial evidence, you will recall, consisted of the following factors. Firstly, the accused's behaviour. Secondly, evidence of opportunity to discard the parcel if in fact it were on his person and thirdly, evidence of the DNA findings.
I will deal with the DNA evidence first. The expert called by the prosecution said she obtained a partial male DNA profile from the outside of the black tape used to wrap the parcel. She explained what she meant by a partial profile by contrasting it with a complete or full profile. In a full profile, she told you, it is customary to find 10 loci or sites. In this instance, only two sites were considered suitable for use in reaching statistical conclusions. Each of the two sites used was considered to be just about the threshold for use as a statistical indicator. The most the expert was able to say is that the accused cannot be excluded as a contributor to the DNA profile found on the masking tape. She was unable to find any difference between the sample obtained from the tape and the reference sample provided by the accused …
Her evidence of course is uncontradicted, which will assist you, I would have thought, in reaching a conclusion that it is safe to accept. You will have to be satisfied that you accept her assertion that there was no difference between the partial profile obtained from the tape and the sample obtained from the accused. Even if you concluded there was no difference the only inference you could draw is, as the expert has said, that the accused cannot be excluded. You may not conclude, and the crown is not asking you to conclude, that it was the accused's profile on the masking tape and that he must have handled the package containing the cocaine.
The evidence does not go that far and cannot be used for that purpose. If, however, you accept the evidence of the expert witness, and you are satisfied that there was no difference between the two specimens as described by the expert witness, it would be open to you to find on her evidence that the accused is one in every group of approximately 112 males who form part of the Australian population which shares the same DNA characteristic that was found on the outside of the masking tape.
While this evidence goes nowhere near establishing beyond reasonable doubt that it was his DNA found on the outside of the tape or that he must have handled or been in possession of the package, it is one of the circumstances which you can take into account in deciding whether or not the prosecution has proved importation by the accused beyond reasonable doubt. While on its own it may not be of any significant probative value, you are entitled to consider it in conjunction with the other circumstances that you find to have been established, and looking at all the circumstances in combination decide whether the crown has satisfied you beyond reasonable doubt that the package was handled and brought into this state by the accused person." (My emphasis).
No point was raised by either counsel about these directions.
The appellant now seeks to rely upon what is put forward as the "fresh" evidence of Dr Brian McDonald, a molecular geneticist and DNA expert based in New South Wales. He reviewed Ms Keglovic's report and the evidence she gave on the voir dire and produced his own report. How that came about was explained by Mr Levy in an affidavit sworn 21 March 2006.
Mr Levy deposes that following the appellant's conviction on 7 October 2005 he had cause to discuss the DNA evidence with Ms Helen Prince of counsel. Ms Prince suggested he speak with Dr McDonald. On 23 January 2006 he was advised by Dr McDonald that in order to give a considered opinion he would need to consider the "genotyper profiles". A copy of the document containing the genotyper profiles had in fact been handed to Mr Levy on the morning of the voir dire. Other than that document the only DNA information provided to him by the prosecution had been Ms Keglovic's statement and report dated 1 March 2004. He deposes that on 21 February 2006 he received Dr McDonald's report which included the following conclusions:
(i)The low level partial DNA profile was consistent with secondary transfer;
(ii)The limited profile did not exclude the appellant;
(iii)The profile indicated was that of a mixed profile (that is, coming from more than one person); and
(iv)The calculation indicated that one in 36 of the population would not be excluded from the sample.
Mr Levy further deposes that Ms Keglovic gave evidence on the voir dire that the profile came from a single source and there was no mixed DNA at any site and that at no time did she give any information to the court or the defence that the DNA profile was an indication of a mixed profile, or that the low level of the partial profile was at a level consistent with secondary transfer, or that the statistical calculation used to calculate the probability of it being someone other than the appellant's DNA, should have included the fact that it was a mixed DNA profile and therefore the statistical calculation should have been one in 36 and not one in 112.
It is correct that Ms Keglovic did not give that information or that evidence; however, that is because that was not her opinion.
On 11 May 2006 I gave leave to each of the parties to adduce further evidence on the appeal, from Ms Keglovic and Dr McDonald. Whether or not that evidence will be admitted as such on the appeal remains a matter to be determined.
Senior counsel for the appellant submits the evidence of Dr McDonald is "fresh" evidence, that is to say, evidence which was not known to the appellant at the time of his trial and could not have been discovered by him with reasonable diligence. He submits the authorities show that considerable latitude must be given to an accused person in determining whether evidence is "fresh" or merely "new".
The distinction remains of importance, notwithstanding the statutory capacity of this Court to admit further evidence on an appeal (s 40(1)(a), (b) and (e) of Criminal Appeals Act2004 (WA)). The position was explained by Pullin JA in de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, at [152] ‑ [153]:
"The distinction is important because 'new' evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively, 'constructively' (Ratten v The Queen (1974) 131 CLR 510 at 517) known to be available at the time of the original trial. An accused will 'constructively' know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, 'great latitude' (Ratten at 517) must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between 'fresh' and 'new' evidence is not as significant as it once was. Nolan v The Queen (unreported, Court of Criminal Appeal, WA, No 99 of 1995, Malcolm CJ, Pidgeon and Murray JJ, 22 May 1997) [sic unreported; CCA SCt of WA; Library No 970260; 22 May 1997]. The distinction does, however, remain and is soundly based in principle. See Mickelberg v The Queen (at [415]). There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way.
The reason for continuing to distinguish between 'new' and 'fresh' evidence is not to re‑establish a set of rules bordering on fixed rules but merely to recognise that, in many cases, the court is likely to exercise its discretion and refuse to admit further evidence - in circumstances where the convicted person chose not to lead the evidence at trial or did not lead evidence which was available on reasonable inquiry. The fact that a tactical decision was made not to lead evidence or the fact that there was a failure to make reasonable inquiry will be facts relevant to the Court's decision about whether the convictions should be quashed and a retrial ordered. A decision made for tactical reasons is a decision which an accused person must live with. There will be no miscarriage of justice. Lawless v The Queen (1979) 142 CLR 659 at 675 - 676."
(See also Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154, [204]; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301; Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 402, 410. Evidence which was either available, or, with reasonable diligence, could have been obtained before trial, is not "fresh" evidence (Beamish v The Queen [2005] WASCA 62, [9]). There is no miscarriage of justice merely in the failure to call evidence at trial if it was then available, or with reasonable diligence, could have been available (Mickelberg, supra, per Toohey and Gaudron JJ at 301). The position was explained by Mason J in Lawless v The Queen [1979] HCA 26; (1979) 142 CLR 659 at 674 ‑ 676, where he said that in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 it was:
" … observed that when the evidence not called at the trial, whether or not it be fresh evidence in the strict sense of that expression, when taken in conjunction with the other evidence tendered at the trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright. The Chief Justice went on to point out that when the evidence not called at the trial, though it fails to show that the accused is innocent or fails to raise a doubt as to his guilt, none the less shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial, if and only if the evidence in question is fresh evidence properly so called, that is if it is evidence of which the accused was unaware at the time of his trial and it is evidence which he could not have discovered with reasonable diligence.
In both these cases the newly adduced evidence, considered in conjunction with the evidence tendered at the trial, reveals a miscarriage of justice showing, as it does, that it would be unsound or unsatisfactory to allow the conviction to stand, in the one case because the appellant should be acquitted, and in the other because there is a likelihood that the accused would be acquitted on a re-trial based on the fresh evidence. The quashing of the conviction by a court of criminal appeal in these cases is based, not on the existence of any irregularity in the conduct of the trial, but on the perceived injustice or unfairness in allowing the conviction to stand when it is viewed against the totality of the evidence including the newly adduced evidence.
However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."

Nonetheless, as is pointed out in Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 at [14]:
" … as was noted in Ratten, the accused person in the case of a criminal trial is afforded considerable latitude, because of the difficulty of the accused's position and the discrepancy between the resources perceived to be available to the Crown and to the accused. Evidence not actually available to an accused will often be treated as fresh evidence, notwithstanding that it could, on a narrow view, have been discovered by diligent inquiry. That is something which falls to be evaluated having regard to the circumstances of each case."
Thus, if the evidence is not "fresh", but is "new" evidence, an appellate court will quash a verdict of guilty only if it either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand (Mallard, supra, [15]; Ratten, supra, at 520; and see the discussion by Steytler P in Rinaldi v The State of Western Australia [2007] WASCA 53 at [78] ‑ [84]).
It was apparent from the very outset of this case that the crucial issue would be proof that the appellant had been in possession of the package, given that it could be expected that any DNA evidence would clearly have to have been subjected to early and careful scrutiny by the defence. The relevant events occurred on the night of 19/20 August 2003. The Federal Police sought a DNA sample from the appellant. He refused. The police made an application to a magistrate and on 21 November 2003 the appellant was ordered to provide a sample of his DNA to the Federal Police. He was charged with the offence the subject of this appeal on 27 April 2004. On 9 August 2005 Mr Levy wrote to the office of the Director of Public Prosecutions advising that the appellant objected to Ms Keglovic's evidence on the basis that it was so unreliable that it should not be admitted into evidence. On 11 August 2005 the Crown prosecutor wrote to Mr Levy indicating that he did intend to rely upon the DNA evidence and proposed that a voir dire should be held on the first day of the trial as Ms Keglovic needed to travel from interstate to attend the trial.
On 12 September 2005 Mr Levy again wrote to the Crown prosecutor and, amongst other matters, confirmed the appellant's contention that the DNA evidence had little or no probative value and should not be relied upon at trial. On the same day the Crown prosecutor replied, confirming that he did intend to rely upon that evidence.
In his affidavit, Mr Levy does not say when he spoke to Ms Prince about the DNA evidence at trial, except that it was after the appellant's conviction on 7 October 2005. In his evidence, Dr McDonald thought the request that he provide a report was probably made a short time before the date of it, which was 21 February 2006.
There can be no doubt whatever that this is "new" evidence and not "fresh" evidence. It was clearly readily available prior to trial. Mr Levy obviously had no difficulty obtaining it from Dr McDonald when he asked for it. He obtained it on the basis of Ms Keglovic's report which had been provided to the defence with the prosecution brief, together with the genotyper chart provided at the voir dire and the transcript of Ms Keglovic's evidence on the voir dire. The report was that which Mr Levy was already challenging in August 2005. Mr Percy submits "latitude" ought to be extended to the appellant here because Mr Levy had no reason to think there was any question about Ms Keglovic's calculations or methodology; he accepted those as correct and put his objection on the basis the figures were so low that the evidence had no probative value, and he says the genotyper chart had not been disclosed by the prosecution before the voir dire hearing.
None of that, however, is any answer. All it says is that the defence chose to deal with this evidence in a particular way at trial. That being unsuccessful, they now seek to deal with it in a different way. That different way was an approach well open to them at trial.
The claimed non‑disclosure of the genotyper chart before trial is not the subject of a ground of appeal. More to the point, it has not been suggested that the defence approach taken to the DNA evidence at trial would have been any different had that chart been included with Ms Keglovic's report. The fact is, the defence simply sought no independent expert advice on Ms Keglovic's report or the DNA evidence generally, before trial. That was a forensic choice. As Freckelton and Selby (Freckelton and Selby "Expert Evidence", Thomson Lawbook Company, vol 2) explain (at 14‑2051) about DNA evidence, under the heading "The Challenge of Presentation":
"The defence, on the other hand, has no option but to rely upon painstaking scrutiny of the scientific reliability and validity of the theories lying behind DNA profiling, as well as on the stringency of the protocols and procedures applied generally by the forensic laboratory and employed specifically in the case at hand and in the context of the particular profiling system employed. There is no substitute for such careful and detailed analysis, which may yield anything from inadequate care of exhibits to deficiencies in a laboratory's analytical procedures or protocols …"
The evidence of Dr McDonald being "new" evidence, it follows that this ground cannot succeed unless it either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the Court that the verdict should not be allowed stand.
It is convenient to set out the following extract from Dr McDonald's report, as it essentially encapsulates his evidence:
"Ms Keglovic has produced a single result for item 1l that demonstrated reportable and unreportable peaks at seven of the nine variable loci. Two loci produced reportable alleles which formed the basis for a calculation performed by Ms Keglovic based on allele frequency data from the ACT population. D8 and D5 were the loci used and the calculation was based on an assumption that a single person contributed the DNA.
Ms Keglovic has generated a point estimate match probability of 1 in 112 persons having the profile D8 12,14 and D5 12,13. In her report she provides a verbal description of weak to this result. This verbal expression is then 'upgraded' to moderate support for the proposition that Mr Howson is the donor on the basis of reading a recently published book.
Whilst I do not have the quantification data from the item 1l it is clear from the results that the amount of DNA is marginal and consistent with the lowest levels detectable by the technology. The amounts are those consistent with secondary transfer of DNA from donor to item via other intermediate persons or items. That is, transfer without direct contact.
Examination of the profiles relied on by Ms Keglovic demonstrates grossly imbalanced peaks for the two loci with the peak height ratio bellows 45% at D5. Whilst I also have not seen the laboratory validation data for peak ratio's it would not be expected that the lab would routinely see ratio's such as this in those studies. An explanation is required. The Profiler plus manual suggests ratio's of less than 70% indicate a problem whereas I have seen labs willing to accept ratio's down to 50% (Profiler Plus manual).
The explanations are found in degraded DNA samples, mixtures and rare primer binding site variations. Mr Howson does not have a primer binding site mutation at this locus based on his reference profile and so he is either excluded as a contributor, or the possibility of a mixture cannot be excluded.
As a consequence, Ms Keglovic MUST perform her calculation with the possibility in mind of this being a mixture. If she does this and makes no assumptions about who or how many contributors are involved she will get a figure that indicates that approximately 1 in 36 people would not be excluded as possible contributors to this item. The calculation is called a Random Man Not Excluded (RMNE) and has not included an Fst correction for subpopulation effects in the database. Inclusion of an Fst will mean one in even fewer people will not be excluded."
For her part, a report from Ms Keglovic dated 23 May 2006 sets out her response:
"1. With reference to Dr McDonald's report lines 17‑21
The statistical weighting of this DNA profile was calculated on the observation that there were only a maximum of two reportable alleles identified at any one locus. As a result a single source statistical calculation was performed (Chakraborty et al, 1993).
2.With reference to Dr McDonald's report lines 22-25
The descriptive 'weak' was an in‑house verbal descriptive used at the time the statement was produced to express a calculated probability of less than 1 in 1000. Dr McDonald states that 'This verbal expression is then "upgraded" to moderate support'. This is definitely not the case. The value of the statistical calculation has remained unchanged. In early 2005 AFP Biological Criminalistics adopted the standard verbal scale outlined in the publication Forensic DNA Evidence Interpretation (table 2.3, page 40) (Buckleton et al, 2005). According to this verbal scale moderate support indicates a probability between 1 in 100 and 1 in 999.
3.With reference to Dr McDonald's report lines 26-29
Dr McDonald states that low level DNA observed in this case is consistent with secondary DNA transfer. This is one possible mechanism for the low level of DNA obtained from item 1 (black plastic). Low levels of DNA can also be observed with direct contact/transfer. The amount of DNA that may be transferred to an item depends on several factors. These include, but are not limited to; the texture of the item, environmental conditions that the item is exposed to, length of time in contact with the item and an individual's tendency to deposit DNA, more commonly known as DNA shedding. Individuals may either be good shedders or bad shedders. A good shedder may deposit a large amount of DNA containing skin cells, while a bad shedder may deposit only small amounts (Ladd et al, 1999; Lowe et al, 2002).
Without knowing the full circumstances of a case it is impossible to determine how DNA was deposited onto a surface. In this instance I am unable to establish how DNA was deposited. All I am able to confirm is that DNA was detected on item 1 (black plastic) and Mr HOWSON can not be excluded as the source of this DNA.
4.With reference to Dr McDonald's report lines 30‑39
Peak imbalances may occur in mixed DNA profiles, however it is possible to see such peak imbalances in low levels of amplified DNA and Dr McDonald indicates they may also occur in degraded DNA. The DNA profile obtained from FP030053-1-l has not shown any further indicators of more than one contributor. I develop informed and educated opinions after considering all information available to me and I am unwilling to extrapolate or infer that more than one individual had contributed in this instance. No more than two alleles were detected in the DNA profile obtained from FP030053‑1‑l (both reportable and non‑reportable) indicating a single source.
Dr McDonald stated Mr HOWSON is excluded as a contributor to the DNA profile obtained from FP030053‑1‑l. I disagree. The comparison between the reference samples and crime scene samples were made by considering all available information in all the DNA profiles obtained. All reportable and non‑reportable alleles present were compared methodically to determine if Mr HOWSON could be excluded as a source of the partial DNA profile obtained from FP030053‑1‑l. Once completed, I was unable to exclude Mr HOWSON as a source of the DNA profile obtained.
5.With reference to Dr McDonald's report lines 40-46
The AFP Biological Criminalistics team uses the Likelihood Ratio (LR) when determining the probability of a mixed DNA profile as described by Weir et al, 1993. This approach utilises all information available (DNA profiles from crime scene samples, victims and suspects) when determining a result. This is the only validated method used by this laboratory for calculating the probability of mixed DNA profiles.
The statistical calculation that Dr McDonald is referring to (Random Man Not Excluded - RMNE) is a probability of exclusion. This type of calculation has limitations. It does not utilise all available information such as the DNA profile of the suspect and therefore may strip the evidence of its true probative worth. RMNE determines the probability of an individual selected at random from the general population being excluded as a contributor to a mixed DNA profile. The only state/territory in Australia that presently uses RMNE in preference to a LR is Tasmania.
Dr McDonald states that I must perform this calculation with the possibility in mind of this DNA profile being a mixture. I have not performed this calculation for two reasons. Firstly, it is not a validated method used by the laboratory and as a result I would prefer to employ the services of a professional statistician. Secondly, the DNA evidence before me suggests only one individual contributed to the DNA profile obtained. Thus the single source statistical calculation (Chakraborty et al, 1993) is used, which includes a very conservative subpopulation correction factor (Fst).
6.With reference to Dr McDonald's report lines 47-51
Verbal descriptives assist the jury and/or judge with understanding the meaning of numerical statistics. This value may hold no real worth until it is placed in context. An expert's evidence is intended to assist in this.
Dr McDonald has referred to a US case in which the probability of a DNA profile was 1 in 26000. He made comment that this would be described as 'very or extremely strong'. Using the published verbal scale adopted by the laboratory this would not be overstated and considered as 'strong' evidence only.
7.Conclusions
1.It is possible low levels of DNA may be a result of secondary transfer, however low amounts of DNA may also be deposited as a result of direct transfer/contact.
2.I believe that one individual is the source of the partial DNA profile obtained from FP030053‑1‑l and Mr HOWSON cannot be excluded as this source.
3.The DNA profile obtained from item FP030053‑1‑l showed no locus with three or more alleles present (either reportable or non‑reportable), including D5. Caution must be used when determining whether a mixture exists if the opinion is based only on one locus.
4.I believe my original single source statistical calculation is the most appropriate calculation to be used in this instance. The point estimate of this DNA profile is 1 in 112 with a 95% confidence interval between 1 in 91 and 1 in 138.
5.In my opinion these findings, when considered in isolation from all other information, provides moderate support for the contention that Mr HOWSON is the source of the DNA profile obtained from FP030053‑1‑l."
Possibly the most contentious issue between the two expert witnesses was their selection of the appropriate statistical model for the expression of the result of the DNA comparison.
As can be seen from her report, Ms Keglovic used the "Likelihood Ratio". She did so on the basis of her conclusion that the trace sample was not a mixture. In his cross-examination of her, senior counsel for the appellant cast his questions in terms that she had assumed there was only one contributor. However, a proper consideration of her evidence makes it clear she did not "assume" that; rather she had formed that opinion based on the results of her analysis and only then proceeded on the basis of that opinion.
Dr McDonald, on the other hand, was of the opinion the trace sample was quite possibly a mixture and that being so it was inapt to use the Likelihood Ratio calculation. He used the Random Man Not Excluded ratio ("RMNE").
Dr McDonald gave reasons why he considered the sample was probably a mixture. Both experts relied upon the genotyper chart (exhibit A on the appeal) which showed the measurements obtained in respect of the particular loci tested, and in particular those shown at D5 and D8. At D5 the two spikes shown measured 228 and 102 respectively. That is a differential of 45 per cent. At D8 the spikes show at 157 and 103 respectively, a differential of 65 per cent. Dr McDonald's evidence is that in the Profiler Plus manual the manufacturers of the testing kits specify that any differential less than 70 per cent is rare in a single sample and indicates a mixture and cannot properly be treated as coming from a single source. He further says that if the sample is a mixture, the appropriate calculation is RMNE. He agrees that the Likelihood Ratio is an appropriate method of calculation where the sample is from a single source.
The Likelihood Ratio (also called the "match probability") estimates the likelihood that a second person from the same population may possess the same DNA profile (Freckelton and Selby, supra, vol 4, 80A‑104).
The Random Man Not Excluded calculation shows the probability that a random man would not be excluded as a possible contributor to the mixture (Freckelton and Selby, supra, 80A‑602).
These are not interchangeable calculations; they ask different questions.
In the present context, as Dr McDonald explains, the question answered by the RMNE ratio is what proportion of the population would also not be excluded as a possible contributor to this mixture.
There is a distinction between the likelihood of another person being the source of the DNA trace and the likelihood of another person matching the profile. The former requires an examination of all relevant information, including the whereabouts, involvement and opportunity of the accused and others at the relevant time. The DNA expert cannot assess this likelihood. However, he or she can give an opinion about the second, because that is properly the subject of statistics and population genetics (see generally Freckelton and Selby, ibid, 80A‑202‑3).
Ms Keglovic adheres to her original opinion. She refers to a journal article "DNA Commission of the International Society of Forensic Genetics, Recommendations on the Interpretation of Mixtures", in which there is a comparison of the probability using the exclusion method versus the likelihood method. The recommendation is that the Likelihood Ratio is the preferred approach both to mixture and single source samples and the random man approach is generally restricted to DNA profiles which are unambiguous.
Asked by Miller AJA whether or not he still agreed with Ms Keglovic that whatever the precise calculation is, the profile did not exclude the appellant, Dr McDonald said (appeal transcript 34):
"---That's correct, yes. But the term 'not excluded' can go from nobody in the population being excluded up to everybody except that person being excluded. So 'not excluded' is the first step if you like.
But the value of DNA is often said to be as an exclusionary tool?‑‑‑Yes.
It's not exclusionary in this case?‑‑‑That's precisely right."
This, I think, is the key to the resolution of this aspect of this issue. The jury might well have accepted Dr McDonald's evidence that the trace DNA was a mixture, but the result still is that the appellant is not excluded, whereas the JP is.
The next aspect to which Dr McDonald's evidence is said to go is the possibility of secondary transfer.
The crux of his evidence on this was his testimony that the amount of DNA actually found in the trace sample is typically the amount of DNA which would be shared or which would be transferred from an individual "in normal daylight (sic)". He accepted, however, the analysis does not say anything about how the sample was transferred.
Dr McDonald agreed there could be a number of reasons for the problematical profile found on the trace sample. They include the possibility it was a degraded sample. He said the fact that what he described as the "larger fragments" are missing from the profile tells him the potential for it to be degraded is present. But he said it could also be because it was a low amount, and that would be consistent with secondary transfer. Ms Keglovic accepted it was possible that the lower levels of DNA found here were those which might be expected from secondary transfer, but said that was not the only possible explanation.

It is important to appreciate that DNA evidence is only one factor in the circumstantial matrix of proof. Clearly enough, it would not matter that a crime scene profile matched that of an accused exactly, nor that the statistical probabilities (by whatever method) were at the maximum, if independent evidence showed beyond question that the accused could not possibly have been the offender. In the same way, one would need to look for some reasonable possibility that there had been secondary transfer from the appellant to the package here.
Mr Percy QC suggested the appellant's DNA may have been transferred to the package by Westaway touching it after he had conducted his "frisk search" of the appellant, or by Bass touching it after he had pressed the video recorder button which the appellant had pressed to turn off the recording.
The difficulty with this submission is that there is no support for it in the evidence. It is not necessary to go through what each of the witnesses said about it. The net effect of the evidence is that:
•the package was first seen on the floor under the chair in the interview room;
•no customs officer nor protective service personnel touched it;
•the parcel was left there until the Federal Police arrived;
•Federal Agent Sawka instructed Federal Agent Windall to place the package in an audit bag, which he did;
•neither Federal Police officer had touched the appellant;
•Federal Agent Sawka realised at the time that the appellant's connection with or ownership of the package was much more of an issue than would normally be the case. As he did not want any forensic evidence that may be available, to be compromised by any testing or opening of the package, he ensured it was sent to forensics where it was examined by Federal Agent Adamek.
In short, the amount of DNA material found was consistent either with secondary transfer or with primary transfer and for the jury to come to a conclusion about which it was (if they could reach any conclusion), they would depend upon the other evidence. Mr Percy conceded there was no direct evidence in support of this submission and the highest he could put it is there was "opportunity" for secondary transfer. Again, however, that is not borne out by the evidence.
In any event, if the jury was left in a reasonable doubt whether the trace sample got on the package by way of primary transfer, that evidence would have to be disregarded. The position would still have been that the DNA trace could not have come from the only other person in the room at the time at which the prosecution said the package was placed there. There being no DNA evidence in respect of the appellant, the position would still have been that the DNA trace may or may not have come from him. There being no evidence either way, it would have been open to the jury to find on all the other evidence (including the DNA evidence which excluded the JP) that the appellant had put the package there himself and had been in possession of it when he came through Customs.
Furthermore, the possibility of secondary transfer was raised with the jury at the trial as a suggestion. Mr Percy said Dr McDonald's evidence could or would have added strength to the possibility. I cannot agree.
In light of the non‑DNA evidence concerning the finding of, and dealing with the package, as a whole, I cannot see any reasonable possibility that Dr McDonald's evidence on this aspect might have caused the jury to entertain a reasonable doubt on the basis that the appellant's DNA may have come to be on it by secondary transfer.
In the course of argument Mr Percy put it that at the end of the trial the jury had been left thinking the possibility of the appellant being excluded was a certain percentage. He submits that was a misleading figure, because according to Dr McDonald's evidence, the actual figure was about one‑third of that. Once again, for the reasons already given, I think that misapprehends the effect of the DNA evidence.
In summary, the evidence of Dr McDonald patently does not show the appellant to be innocent; nor do I consider that it raises such a doubt about his guilt that the verdict should not be allowed to stand. I would accordingly not receive the additional DNA evidence on the appeal. In my opinion, ground 1 must fail.

Ground 2: misdirection, false denials (circular reasoning)

It is submitted his Honour misdirected the jury in telling them (AB2/378):
" … his allegedly false denials of having anything incriminating on him, may be relevant in your view to prove his state of mind at the time of the alleged importation of the drugs."
The submission is that the direction demonstrates circular logic of the type that was referred to in Zheng v The Queen (1995) 83 A Crim R 572, because in order for the Crown to prove the falsity of the denials by the appellant that he had anything on him that was incriminating, the jury would have first been required to decide the primary issue in the case, that being that he was indeed in possession of the package containing the drugs.
The direction criticised is a very selective extract from what his Honour said. It is necessary to consider that part of what he said in context. He was at the time, adumbrating the various aspects of circumstantial evidence relied upon by the Crown:
"The next circumstantial factor relied upon by the prosecution was the accused's behaviour at the airport immediately before and at the time of the search. You may think that the accused's behaviour at this time was evasive, abusive and threatening. That is something that you will have to consider. His apparently belligerent attitude and what you may or may not find to have been his attempts to conceal something on his person, coupled with his allegedly false denials of having anything incriminating on him, may be relevant in your view to prove his state of mind at the time of the alleged importation of the drugs.
Evidence that a suspect found in possession of what is thought to be a suspicious object prevaricated, lied and did everything possible to avoid being searched may be relevant to his intention and knowledge in relation to the drugs said to have been found at a later stage. It may be significant evidence that you, the jury can consider in deciding whether the only reasonable inference is that the accused knew the package was on his person and intended to bring it into WA knowing it contained or was likely to contain a prohibited narcotic. Once again, evidence of his behaviour on its own does not establish his guilt. It is simply another of the circumstantial factors which the crown has asked you to take into account." (My emphasis).
Zheng was a different case altogether. The appellant had been convicted of three counts of supplying not less than a commercial quantity of heroin. The trial Judge directed the jury that it was essential to the Crown case that they find the appellant, on two separate occasions in a car park, received a plastic bag containing the heroin from another person, which he had placed in the boot of a car. The appellant was observed by police officers to arrive at the car park with another man, Chin, and later, when he was alone, to place a bag in the boot of a car. That was owned by one Johns, who later returned and collected the bag. Chin was later observed to take another bag from another car and give it to the appellant, who, when he was again alone, subsequently placed it in the boot of Johns' car.
The appellant made an unsworn statement at trial. He gave an innocent explanation for being in the car park, saying that he was only there cleaning cars. While waiting for the owner of a car he had cleaned to return and pay him, he had struck up a casual conversation with an Asian man he had never seen before.
The trial Judge directed the jury that it was open to them to find the appellant's contact with Johns and Chin as described by him was so unlikely to be accidental that they could be satisfied it was a lie and an illustration of a consciousness of guilt.
Hunt CJ at CL (Smart and Studdert JJ concurring) pointed out (576 ‑ 577) that proof the appellant put the bags in the boot was essential to the Crown case - and the only evidence of that was that of the police officers who observed his conduct. Thus, the only logical way the jury could have been satisfied the appellant was lying was if they accepted as true the evidence of the police officers' observations. But once they accepted that evidence, the jury would necessarily have been satisfied the appellant had done what they said he did. For them to be invited to conclude his lies concerning his conduct in the car park was available as evidencing a consciousness of guilt, which could then be taken into account in some way in determining whether he had in fact conducted himself in that way in the car park, was a wholly circular argument. Without any assistance from the trial Judge about how lies told by the accused could assist them, there was a real risk the jury would have reasoned from their disbelief of the appellant's account of what had happened in the car park, without more, that he had in fact done what the police officers had said he did. There was a miscarriage of justice and the convictions had to be quashed.
Although the present case was fought on the issue of possession, it was nonetheless incumbent upon the prosecution to prove all elements of the offence beyond reasonable doubt. One of those elements was that the appellant knew that what he was importing was a prohibited drug. It was that element that the direction complained of was addressing. This ground of appeal would have substance if the impugned direction had been given in relation to proof of possession. Then it would have involved the same circular reasoning as in Zheng. But it was not. The trial Judge made it perfectly clear that he was talking about the appellant's state of mind, not the issue of possession. If the jury were to be satisfied the appellant had been in possession of the package, then all the circumstances to which his Honour referred, including the appellant's evasive, abusive and threatening behaviour, his attempts to conceal the package and then to get rid of it, and his false denials about having it, were clearly evidence from which the jury could infer he knew the package contained prohibited drugs. There is no circularity of reasoning in that. This ground must fail.

Ground 3 (direction on lies)

This ground complains of the same direction which is the subject of ground 2. The submission here is first that it was "not entirely correct" for the trial Judge, when dealing with the question of "behaviour" and "false denials" to suggest they could be dealt with in the same manner. It is submitted that is because the question of the appellant's suspicious behaviour was evidence of a different character to the alleged lies said to have been told by him and the jury required specific assistance as to what use could - and could not - be made of the alleged lies. It is then submitted that the direction was defective in that it did not isolate the lie or lies relied upon nor include the minimum standard directions required by Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 211.
Alleged lies told by an accused may be relevant in two ways. First, they may go to the accused's credibility. Secondly, they may themselves be probative of the accused's guilt. In either case, there is a risk the jury might think the accused is guilty, just because he lied. This was explained by the Privy Council in Broadhurst v The Queen [1964] AC 441 at:
"There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so."
Their Lordships immediately went on to say:
"But if on the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."
In their joint judgment in Edwards, Deane, Dawson and Gaudron JJ characterised the type of lie which is probative of guilt as being told out of a "consciousness of guilt" - that is to say, it may amount to conduct which is inconsistent with innocence and so therefore to an implied admission of guilt (208, 209). In such a case, the jury should be directed that they need to be satisfied that the lie was a deliberate lie; that it related to a material issue; that the motive for telling the lie was a realisation of guilt and fear of the truth on the part of the accused; and that people may sometimes lie for reasons other than a consciousness of guilt.
Where the prosecution relies upon lies told by the accused as going only to his or her credibility, it is unnecessary and undesirable that an Edwards direction be given. That is what the High Court said in Zoneff v The Queen [2000] HCA 28; 200 CLR 234. They said (at [20]) that is because such a direction could have the effect of raising an issue on which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the mind of the jury to the prejudice of the accused. The majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) held that to be the position in that case; because the Crown did not put any submission that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, so an Edwards direction should not have been given. However, the trial Judge had evidently been concerned that there was a serious risk the jury might engage in impermissible reasoning in relation to the matter of lies. The direction he did give, unfortunately merely raised the topic and then left it largely up in the air. The majority said that in those circumstances, in what they described as "this unusual case" ([23]) a direction which might have been given to allay those concerns was:
"You have heard of lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies, and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case, but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
This has become known as a Zoneff direction. For the appellant it is said that if an Edwards direction was not required here, that at the very least a Zoneff direction ought to have been given.
A direction in the terms articulated in Zoneff will be called for where there is a risk that the jury might misunderstand the significance of possible lies, even though the prosecution has not sought to rely upon them as probative of guilt in the sense that the accused told them because he or she knew the truth would implicate him or her in the commission of the offence (Zoneff, [24]).
In the instant case, although we have not been provided with counsel's addresses to the jury, it seems clear enough that the alleged false denials of the appellant were not being relied upon by the Crown as going simply to his credit. They were part of the Crown's circumstantial case as to the appellant's knowledge that he was importing prohibited drugs. An Edwards direction will usually be essential where the Crown invited the jury to treat lies by an accused as part of its circumstantial case, as corroboration, as confirmatory or supportive material or simply as evincing a consciousness of guilt (Nestorov v The Queen [2002] WASCA 356; (2002) 137 A Crim R 310, at [53], per Hasluck J, Parker J and Olsson AUJ agreeing).
In my opinion, this was not a case in which a Zoneff direction was appropriate. In particular, the jury could hardly have been told that the appellant's lies (if they found them to be so) were not evidence of guilt. The alleged lies were part of the Crown's circumstantial case. If any specific direction about lies was required, it was an Edwards direction. The trial Judge did not give a direction in those terms. However, in the particular circumstances of this case I do not consider it was required as a matter of law. The alleged lies were identified by his Honour. They were simply the appellant's denials that he was carrying anything on his person. There was no other material the jury could have regarded as lies going to proof of guilt. If the jury were satisfied the appellant's denials were lies, they could not have been seen as other than deliberate lies and told because he knew the truth would implicate him in the importation of a prohibited drug. His denials certainly related to a material issue, that being whether he was aware the package contained a prohibited drug. The risk that the jury might have reasoned that the appellant was guilty simply because he told lies was not in fact a risk in this case. The jury could not have found the denials were lies unless and until they were satisfied beyond reasonable doubt he had been in possession of the package. If thereafter, having regard to the evidence as a whole, including the appellant's behaviour and false denials, they were satisfied he knew the package contained a prohibited drug, then (given the nature of the drug was admitted) the guilty verdict was inevitable. I do not see how the jury could have engaged in any kind of an impermissible process of reasoning which an Edwards direction would have warned them against. In my opinion, this ground must fail.
I should add that if an Edwards direction had been required here as a matter of law, it would follow that his Honour's failure to give it would have constituted a miscarriage of justice, but I would nonetheless not allow the appeal on this ground.
I consider that even were this ground to be decided in favour of the appellant, the appeal should be dismissed, because no substantial miscarriage of justice has occurred (s 30(4) Criminal Appeals Act). I would reach that conclusion for the reasons just expressed and by applying the approach laid down by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, at [41] ‑ [45].
The task is to be undertaken on the whole of the trial record and in the same way an appellate court decides whether a verdict of a jury should be set aside on the ground it is unreasonable or cannot be supported having regard to the evidence.
The appeal court must make its own independent assessment of the evidence, and determine whether, making due allowance for the natural limitations in proceeding wholly or substantially on the record, the appellant was proved guilty beyond reasonable doubt of the offence in respect of which the jury returned that verdict.
In my view, this is not a case in which those natural limitations require this Court to conclude that we cannot reach that necessary degree of satisfaction.
I have already explained why I consider the failure of the trial Judge to give an Edwards direction would have had no significance in determining the verdict returned by the jury. I take into account the fact that the jury did return a verdict of guilty. I am persuaded the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. In addition to my observations made above about the DNA evidence, including the possibility of secondary transfer, the evidence in support of the Crown case was compelling for the following reasons:

•the appellant's behaviour as described by the various Customs officers;
•the bulge observed by Westaway just below the belt line in the front of the appellant's trousers;

•Westaway's description of what he felt in that area on the "frisk" search;
•the fact the appellant was wearing two pairs of boxer shorts under his trousers;
•the evidence of the Customs officers and the JP that the package subsequently found under the JP's chair was not there until after the JP left the interview room;
•the fact that the appellant had the opportunity to place it there when the JP left the room;
•the DNA evidence that the JP was excluded as a possible source of the DNA trace found on the package;
•the DNA evidence that the appellant was not excluded as a possible source.

I am satisfied that all of that evidence as set out in the record established beyond reasonable doubt that the appellant did have the package in his possession when he presented to Customs and that he did import it. Given that conclusion, the appellant's behaviour, again, his attempted concealment of the package and his false denials about having it, show beyond reasonable doubt that he well knew it contained prohibited drugs.
Even if the law did require an Edwards direction there was no substantial miscarriage of justice and I would not allow the appeal on this ground.
I would dismiss the appeal.
BUSS JA: I agree with Roberts‑Smith JA.
MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Roberts‑Smith JA. I respectfully agree with those reasons and agree that the appeal should be dismissed on all three grounds. I have nothing further to add.