Karger v The Queen

[2004] HCATrans 128

[2004] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A274 of 2002

B e t w e e n -

DAMON JOHN KARGER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 10.09 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   If the Court pleases, I appear with my learned friend, MR S.D. OWER, for the applicant.  (instructed by North East Lawyers)

MS W.J ABRAHAM, QC:   If the Court pleases, I appear with MS L.J. CHAPMAN for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ:   Yes, Mr Tilmouth.

MR TILMOUTH:   Your Honours, there is the initial question of an extension of time, which is being sought.

GLEESON CJ:   Is that opposed?

MS ABRAHAM:   No, it is not.

GLEESON CJ:   Yes, you have that extension, Mr Tilmouth.

MR TILMOUTH:   I am obliged to the Court.  Your Honours, the point in this appeal, in our submission, is the question relating to directions that should be given in cases involving DNA evidence, especially in relation to whether or not a direction is required as to how the jury approach the task of dealing with the mathematical probabilities which are entailed in the figures which the expert evidence produces.

Your Honours, can I briefly, if I may, take you to the summing up, to demonstrate how the point arises.  For material purposes, the summing up commences at page 142 of the application book, which I do not intend to read, but I just wish to point out the build‑up, as it were, to what we submit were the crucial directions which, in our submission, were ultimately inadequate.  At 142, paragraph 900, the learned trial judge referred to the fact that in this case a very substantial part of the case, which occupied a very long period of time, related to the DNA evidence.  I should tell your Honours, it related to both methodology – the statistical base – as well as what the ultimate figures were. 

His Honour had dealt with the former to a point in the earlier part of the summing up, which is not the subject of complaint, and then, as your Honours will see at 902, he turned to the statistical part of the case, which is the subject of this application.  At page 143, your Honours, at paragraph 904, his Honour referred to what he called “the correct conservative factors” – this is at lines 1 to 2 of that paragraph: 

It has applied the correct conservative factors, as I call them, the confidence interval and the theta or Fst factor, and it has reached a conclusion applying all of those aspects of modern science.  It has reached a figure of 1 in 90 billion.  That is not an accurate figure, of course, but it enables, you, if you accept it, to give due weight to what is the significance of this DNA match.

Now, in essence, our point is, his Honour never went on anywhere later to explain why the figure was not accurate, or was not to be taken literally or mathematically, and he gave no directions as to how the jury were to use that otherwise start figure. 

The directions then continued by his Honour saying later on that page – this is at paragraph 908, the second part of the paragraph, where his Honour directed the jury, in the fourth to last line, that:

You do not have to understand the science.  What you have to understand is what the science is saying to you. 

The complaint is that his Honour really never told them what the bare figure of 1 in 90 billion meant or how they should go about it.  His Honour then dealt, at page 144, with the contentions in relation to methodology.  That is best captured at paragraph 913, on page 144, where his Honour says:

Dr Atchison –

who was the defence witness –

says you cannot use the two databases like they were used here because they are not the same people.  Dr Buckleton –

a prosecution witness –

says that is incorrect, and so does Mr Pearman –

also a prosecution witness –

So you will have to make a decision about that.

In short, your Honours, his Honour went on to give directions about how the jury approaches conflicting expert testimony, but his Honour did not, in our submission, go on to then deal with – assuming they accept the figures that have been brought forward by the prosecution witness – how they deal with those figures.

That is demonstrated, your Honours, if I may go to page 148 of the appeal book, where the question of the statistical evidence arose again.  During the course of submissions by defence counsel complaining about the summing up, his Honour noted, at paragraph 962, line 3: 

I do not think the jury has understood a great deal of the evidence in this case. 

Now, I only refer to that, your Honours, to emphasis the point that a jury unassisted about what 1 in 90 billion meant would be totally overwhelmed by that figure. 

GUMMOW J:   What should they have been told?

MR TILMOUTH:   What they should have been told, your Honour, in a generic sense, was given a Doheny and Adams direction, the English case.  What they should have been told or warned, in our submission, was not to approach the issue of chance upon a strictly mathematical basis and that the task before them was not one capable of being reduced to a mathematical computation.  Translated to the facts of this case, the jury should have been specifically directed that the figure of 1 in 90 billion was not a strictly mathematical probability figure, and it was not a figure that was capable of deciding the case, as it were, absolutely, one way or the other.  They were told none of that, if the Court pleases.  The jury was left with that figure without assistance.

Your Honours, that was done, in my submission, without proper explanation or warning at page 158, paragraph 1025, where your Honours will see in 1024 the figure of 90 billion is mentioned and at 1025 his Honour directed the jury:

however it is expressed, you will get the full import from that evidence as to the significance of this calculation.  It is to enable you to understand the weight that you can give to this match, and you might conclude that if you accept the evidence of Dr Buckleton and Mr Pearman –

for the prosecution –

and accept that this is the way that is now done in most places in the world, it shows that this match is an extremely powerful piece of evidence in this case.

Of course, if you accept the evidence of Dr Atchison –

the defence evidence, but that was a direction not about probability, it was a direction about how to resolve problems of conflict between expert witnesses.

At paragraph 1068, if the Court pleases, his Honour came back to this issue.  At 1107, his Honour again directed the jury:

Having regard to the evidence of match probability, are you satisfied beyond reasonable doubt that it is about 90 billion times more likely if the accused donated those two samples than if some other random person donated them?  If you do reach that conclusion, then it is a most important piece of circumstantial evidence to be considered along with all of the other circumstantial evidence in the case.

So it was put, in my submission, on the bare basis of the mathematical figure, without an appropriate warning.  Finally, your Honours, at 169 ‑ ‑ ‑

GLEESON CJ:   Can I just come back to paragraph 1107.  Does the word “it” in the second line mean “the match”?

MR TILMOUTH:   I need to be reserved about that, your Honour.  I am not sure, but the point I would put anyway is that the jury would clearly see it as being that.  What the submission is is that the jury would simply reason without assistance that the chance of the accused being innocent, or the chance of the accused not having donated the sample, was 1 in 90 billion.  That is, in essence, what the point ‑ ‑ ‑

GLEESON CJ:   But one thing the jury had heard was the evidence of these experts about this and about what this meant.

MR TILMOUTH:   That is so, but not about the problem of translating the statistical evidence into probabilities.  That is the fault which has been identified by Sir Owen Dixon in Briginshaw, which is referred to in our written outline.  Your Honours, can I just carry over to page 169, if I may.  It was left to the jury, at paragraph 1112, again just as a bare calculation:

the calculation of 1 in 90 odd billion gives you a realistic way of assessing the weight of the evidence of the match –

perhaps that answers your Honour the Chief Justice’s question as well –

It is fair to say that you may have regard to this evidence as a very powerful piece of evidence if you accept the opinions.

Now, your Honours, in our submission, this was simply in this case clearly left to the jury on a bare statistical basis, without any appropriate warning.  Quite apart, your Honours, from the cases the English ‑ ‑ ‑

GLEESON CJ:   Just before you leave it, what do you say was the significance of the DNA evidence?

MR TILMOUTH:   The significance of it was, of course, that it was capable of connecting the applicant with the crime, because it was capable of showing that he was the donor of what the Crown said was the blood in the stain on the shirt of the victim.  But it was not to be taken as being in the order of 1 in 90 billion as such. 

GLEESON CJ:   What was it to be?

MR TILMOUTH:   As I understand it, your Honour, there was no evidence about that, but it is not a question of evidence, it is a question that the 1 in 90 billion is a statistical future prediction.  It is not a question of probabilities in the case.  Can I illustrate the point, if I may, this way.  In Doheny and Adams the English Court of Appeal was attracted by revealing what has been called in the cases “the prosecutor’s fallacy” in this way.  The example was given of a poker game where the dealer deals himself a straight flush.  The probabilities, as it turns out, of that happening is 3 in 312,000, I think, but, of course, that says nothing about the probabilities of the dealer dealing that straight flush honestly or dishonestly, and that is the problem in this case.  It is one thing to reason about what the probabilities are of another match of DNA, but it says nothing about the probabilities – at least on the bare statistical basis – of the involvement of the applicant. 

GUMMOW J:   It is set out at page 275 of the application book, is it not, paragraph 39? 

MR TILMOUTH:   That is right. 

GUMMOW J:   It is really step 3, is it not?  Just the last part of step 3, “and is guilty of the crime”?

MR TILMOUTH:   Yes, that is the third point we make, although, in fairness, in direct terms the prosecutor’s fallacy was not put as such.

GUMMOW J:   That is right.

MR TILMOUTH:   What we submit is that the cases, so far as they go ‑ and this is another point why, in our submission, special leave is desirable – at page 276, your Honours, we point out that the cases which have dealt with this are essentially the New South Wales cases of GK, Galli and Keir; they are all dealt with at page 276.  They all touch on the problem, but do not resolve the question of whether a warning is required.  Now, what we put ‑ ‑ ‑

GLEESON CJ:   In a case where you have a person who has dealt some cards being charged with, or alleged to have engaged in, dishonestly dealing the cards, and you have some other evidence that indicates dishonesty on the part of the dealer, the statistical evidence then becomes very significant, does it not?

MR TILMOUTH:   There is no doubt it is capable of being that way.  As the Court of Appeal pointed out in Doheny and Adams itself, if, on the one hand, the case were that there was an alibi that the accused was in the north of England at the time, the statistical evidence might not be important.  If, on the other hand, it was shown coincidentally that the offender happened to be in the vicinity of the crime when it occurred, then the statistical evidence takes a different meaning.  I accept that. 

May it please your Honour the Chief Justice, the other example given in the Criminal Law Review article then went on to say, well, what if the dealer was the archbishop?  That would then suggest, they infer, that the chances of the archbishop acting dishonestly in dealing himself the cards would be slight.  So I accept that point, but, your Honours, in this case there is no doubt that a significant and important part of the case was this DNA evidence.  That is partly why I read those earlier passages to your Honours to demonstrate that the way it was put to the jury was that this DNA evidence was a major part of the case.  It is impossible to take the DNA component out and say, in effect, that nevertheless there would have been no miscarriage of justice.

Your Honours, what we put then – and, as I said a moment ago, this is all at page 276 of the application book – is that the Australian cases are unresolved on whether a warning is needed.  In our submission, a warning is required, especially where the probabilities statistically are so high as they were in this case.  We would submit that the principle derives from the broader principle of Longman, namely, that where there is a perceptible risk of miscarriage of justice, a warning to remove or reduce that risk, so far as possible, is required.  We submit that in DNA cases, particularly with high probability evidence such as in this one, such a warning would be required.

Finally, your Honours, the problem, in our submission, with the Court of Criminal Appeal is that the court did not resolve this question.  All the principal judgment of Justice Gray said was – and this is at page 250 of the application book, if the Court pleases, indeed, from 248 to 250.  From 248, his Honour is dealing with the case of Doheny and Adams, which I have been referring to.  At 250, line 3, Justice Gray says:

These recommended procedures form a useful benchmark against which to measure the way in which DNA evidence was addressed in this case.

But then his Honour goes on, at page 255 to 256, to deal with the argument, at line 1 of paragraph 183, “that a warning was required”.  His Honour then deals with Doheny and Adams, and, at 185, his Honour concludes that:

The judge’s summing up was devoid of any language that would lead to such a process of reasoning.  This complaint must be rejected. 

Then his Honour went on to deal with the significance of the DNA evidence, which is the statistical point, again refers to Doheny and Adams, but at 256, paragraphs 187 to 188, what his Honour says, in effect – to paraphrase it – is that the jury were adequately directed about how to go about dealing with the expert evidence and the conflicts of the evidence in the case. 

As I have endeavoured to demonstrate already, if the Court pleases, his Honour may well have dealt with the problem of how to deal with conflicting expert evidence, but nowhere at all did his Honour deal with the question of how the jury should approach the bare figure of 1 in 90 billion, which would have, in our submission, completely overwhelmed the jury and dominated its reasoning process.  It is that failure in the summing up and that failure of the Court of Appeal to deal with that issue which, in our submission, is the special leave point.  If the Court pleases.

GLEESON CJ:   Thank you.  We do not need to hear you, Ms Abraham.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case, and the application is refused.

AT 10.28 AM THE MATTER WAS CONCLUDED