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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Karger v The Queen

Details

AGLC: Karger v The Queen [2004] HCATrans 128
Case: [2004] HCATrans 128
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Karger against the decision of the Supreme Court of South Australia, which had dismissed his appeal against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant.

The primary legal issue before the High Court was whether the evidence obtained from the appellant, specifically statements made by him and items seized from his person, had been unlawfully obtained, and if so, whether that evidence should have been excluded from his trial. This involved considering the application of the common law exclusionary rule and the principles governing the admission of evidence obtained in contravention of legal rights.

The Court examined the circumstances under which the evidence was obtained, focusing on whether the appellant's rights had been infringed. It was held that the evidence was obtained in contravention of the appellant's rights. However, the Court affirmed that the common law exclusionary rule is not absolute and that evidence obtained in contravention of legal rights may still be admitted if its probative value outweighs any prejudice it may cause. The Court found that the trial judge had correctly exercised their discretion in admitting the evidence, as its probative value was high and the prejudice to the appellant was not such as to warrant exclusion.

Consequently, the High Court dismissed the appeal, upholding the appellant's conviction.

Orders