MB v The Queen

[2010] HCATrans 306

[2010] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S256 of 2009

B e t w e e n -

MB

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 NOVEMBER 2010, AT 11.17 AM

Copyright in the High Court of Australia

MR C.H. WITHERS:   May it please the Court, I appear with my learned junior, MR  D.A. HUGHES, for the applicant.  (instructed by the applicant)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Withers.

MR WITHERS:   Do your Honours have a copy, or you may not have a copy, of the amended application for special leave?  You may have an unsigned copy.

FRENCH CJ:   We have the amended application.

MR WITHERS:   Yes, your Honour.  I have a signed copy here.  My client is in prison.  I have been unable to obtain his signature on the document but I have a signed copy that is signed by the father.

FRENCH CJ:   As long as you undertake to file that we will work off the document you have given us.

MR WITHERS:   I undertake to do so.  Your Honours, there are two questions that arise on this application.  The first is whether or not a miscarriage of justice occurred because the applicant’s trial counsel asked for, and the court agreed to give, a direction as to self‑defence when self‑defence was not reasonably available on the facts of the case.  We say it substantially undermined my client’s trial strategy that he was not the perpetrator of the crime.  That is the first question.

The second question concerns the admissibility of DNA evidence.  There is evidence that it was admitted at trial that the deceased’s DNA was found on the right hand of the accused and that it got there, according to the Crown, when my client stabbed the deceased in the neck with a bottle.             That DNA evidence was evidence of a mixed sample of DNA.  The possible contributors to that DNA were the accused and the deceased but there was no statistical evidence at all in the case as to the likelihood that that DNA profile, that mixed DNA profile, matched any other member of the general population.

FRENCH CJ:   There was no dispute, was there, that your client actually fought with the deceased?

MR WITHERS:   There was no dispute about that.

FRENCH CJ:   There was physical contact between them?

MR WITHERS:   There was physical contact between them, yes.  I will come back to this in a second, but in summary, the Crown used the evidence of that DNA to say it was the deceased’s DNA.  It got on the hand because the accused stabbed the deceased in the neck with a bottle but there is no evidence to support that.  That point was reiterated by the court.

Could I go briefly to the facts of the case.  There was a fight on 7 July 2005 involving a number of youths – some 14 youths in Newcastle.  It occurred late at night at around 10.30.  Some 14 youths were involved.  There were only two witnesses in the cases that were brought forward by the Crown that were not intoxicated.

The trial judge made a number of remarks that are set out in our written submissions to the effect that it was likely that the jury had not heard the full story about what occurred that night.  The applicant was 17 years old at the time of the trial.  He was 16 years old at the time the crime occurred and he was sentenced to 22 years in prison.  The defence adopted a trial strategy which was, “This is a case about identification”.

FRENCH CJ:   Basically, that your client was not the person who caused the deceased’s death.

MR WITHERS:   That is correct, your Honour, because none of the Crown’s witnesses saw my client stab the deceased in the neck with a bottle.

FRENCH CJ:   So far as the self‑defence point goes, is not the question whether, by asking the trial judge to leave self‑defence or put self‑defence to the jury, without himself advancing it in closing address, that counsel was making an appropriate tactical decision to at least create the possibility of a fallback position which he would not personally have to advance inconsistently with this case?

MR WITHERS:   Yes.  We say this was not an appropriate tactical decision.  It was one that could never be made by trial counsel.  It reaches the level of flagrant incompetence of counsel because, as the Crown said at page 1386 of the transcript: 

there’s no evidentiary basis in respect of self defence –

and there was none.  My client did not give evidence.  The Crown’s forensic biologist, Dr Lee, said that the injuries that were sustained by the deceased were not consistent with any kind of injury involving a struggle over a broken bottle, ie, the self –defence theory if it was going to be available was not, according to the forensic biologist.

More importantly, Mr Grogin has said in an affidavit after the trial that his instructions were “to abandon the self‑defence issue in this case as it would not be sufficiently cogent and persuasive”.  The trial judge in his sentencing remarks also said there was a fight between them but that:

there was no real risk of either of them inflicting any serious injury on the other.

Defence counsel did not address at all on self‑defence and said the primary issue is one of identification.  This is borne out, your Honours, at page 1392 of the transcript.

FRENCH CJ:   Do we have that?

MR WITHERS:   I hope so, your Honour.  There were a couple of pages that were missing from my version which I have here to provide your Honours.

FRENCH CJ:   Is there a page in the application book you are taking us to?

MR WITHERS:   I have supplied your Honours with some transcript.  It is not in the application book.

FRENCH CJ:   Yes, thank you.

MR WITHERS:   It is at page 1392, remembering that at 1386 the Crown has said “there’s no evidentiary basis” for self‑defence and at 1392 defence counsel said:

I would suggest that there is evidence raised by the Crown case that would warrant the consideration of self‑defence.

HIS HONOUR:   What’s that?

Then there is a further exchange.  Then over at 1394 – that should be on the papers I have just handed to your Honours - the court said to defence counsel:

I want to know what you’re addressing the jury on.  Are you addressing the jury on self‑defence?

Defence counsel said:

I won’t be addressing the jury on self‑defence.

Then further on at line 45 the trial judge said to defence counsel:

But you’ve got more problems, haven’t you? What are the circumstances that the accused thought them to be?

GROGIN:   That’s not before the jury -

which is precisely the point, because under section 418 of the Crimes Act 1900, and as this Court has said in Zecevic, if you are going to make out a case on self‑defence you need to show what the accused was thinking at the time, whether the accused subjectively believed that he or she was under threat.  If that inquiry is answered in the affirmative then you go on to consider whether the response is reasonably proportionate to the circumstances.  The trial judge goes on to say:

The problem though is that the jury have got to look at the problem of self‑defence on the basis of whether the accused in the circumstances in which he faces – we don’t know what the circumstances are which he faced.  We don’t know anything about his belief as to what it was that he thought that he had to do in order to defend himself against the particular attack or the circumstances in which he found himself.  We don’t know what he found himself in.

Trial counsel quite rightly said:

There is no subjective evidence of that.

HIS HONOUR:   I understand you say that.  How on earth do I put it to the jury?  How does the jury consider whether the accused was acting in self‑defence if the jury don’t know what it was that the accused perceived was the situation he was forced to meet?

His Honour makes a similar observation at 1401 where he says there is no evidence that the deceased had a weapon and he says:

How do I put that to the jury?  What do I say?

GROGIN:   Well, your Honour, it does call for speculation; purely speculation—

That is exactly right, your Honour, in our submission, it did call for purely speculation because there was just no evidence at all before the court which would enable that defence to be put to the jury.  That is also borne out by, we say, the trial judge’s direction to the jury. 

We do not say that there was actually anything wrong with the content of the direction, and this is where the Court of Appeal made a comment about this at 72 and took it as a concession which really ended the argument.  We do not say there was anything wrong with the content of it.  It was perfectly accurate because the trial judge went through the evidence and said on a number of occasions, and they are referred to in our written submissions, “I do not see how, or there are significant difficulties for you, jury, in reaching the conclusion that there was self‑defence in this case when you have not heard from the accused”.

At application book 54 there are number of statements to that effect but perhaps the most absent one is at application book 54 where the trial judge says:

there is simply nothing that would indicate to you that the accused could have believed genuinely that it was necessary to get a bottle, break it and run back towards the deceased in order to defend himself.

That is really the question that was in the jury’s mind as a result of this direction.  We say that the effect of the direction was to undermine the defence’s case that my client was not the killer.  It was a complex case.  It was late at night.  There were 14 individuals involved and if your Honours look at the summation from both the Crown and defence counsel you will see that there is a lot of detailed evidence about who was moving in what direction.  There were 14 people involved.  There is forensic evidence about the nature of the wounds which was inconsistent with a description of my client’s actions by one of the Crown witnesses.

It was a very complex exercise that they had to undertake.  In this case they had to also throw into the mix consideration of the self‑defence issues that were raised by his Honour.  That, we say, is what caused a miscarriage of justice because it undermined my client’s case.  If I could briefly take your Honours, before I get onto DNA, to two key authorities.  Hopefully your Honours will have a copy of the authorities that we have copied for the Court and provided. 

FRENCH CJ:   Yes.

MR WITHERS:   The first one is the Privy Council from 1990.  That case involved the murder of a woman with a razor blade and there was no suggestion in that case that the wounds that were inflicted ‑ ‑ ‑

FRENCH CJ:   This is Mohammed v The State [1990] 2 AC 320?

MR WITHERS:   Mohammed v The State, I am sorry, your Honour.  There is no suggestion in that case that the injuries could have been consistent with any kind of struggle.  When one goes to page 332 of the judgment, the appeal ground was that the court should have given a direction on self‑defence and the court said:

Whoever inflicted that injury must have intended to kill or at least cause serious injury.  The defence did not raise the issue of manslaughter; the defence was, “I was not there, I had nothing to do with the attack.”

So the same situation here.  We say we did not have anything to do with the deceased’s wounds.

The issue the jury had to decide was whether or not the defendant was the man who attacked the deceased.  If the jury found that he was the attacker a verdict of murder was inevitable.  For the judge to have suggested to the jury that they should consider the possibility that such a wound could have been unlawfully inflicted without intention to cause serious harm would have been to introduce –

and these are the key words ‑

a wholly unrealistic and totally unnecessary confusion into the clear‑cut decision that the jury had to make, which was, whether the prosecution had proved that the defendant was the attacker.  The judge was right to leave murder to the jury without the alternative of manslaughter.

The next case is Pemble v The Queen.

FRENCH CJ:   That was a case, of course, of a defendant complaining that the alternative had not been left.

MR WITHERS:   Yes, that is right.  It is a slightly different situation because we are complaining that the alternative should not have been put.  The next case is Pemble v The Queen.  It is not in my list of authorities, but I have a copy to hand up to the Court.  It is in my list of authorities, but not within the binder that we provided the Court.

FRENCH CJ:   Right.  What you really need to demonstrate, do you not, is there was some damaging consequence of all of this that meant that your client did not receive a fair trial and that there was a miscarriage of justice?

MR WITHERS:   That is correct, your Honour.  We say that we cannot know exactly what happened in the jury room.  In any case like this you cannot know exactly what happened in the jury room.  But where a direction is given, where it is not available on the evidence, Mohammed v The State and Pemble both say it is liable to cause confusion and that is, we say, the error that infirmed the trial.  If I could take your Honours briefly to page 118 ‑ ‑ ‑

FRENCH CJ:   On one view it might be said that your client had the benefit of the direction that invited the jury to speculate on the possibility of self‑defence.  That is the fallback position, I think.

MR WITHERS:   Yes.  We would say there was no benefit to that.  The reason why there was no benefit to that is because it required the jury to visualise - and the judge’s directions were very visual - the defendant perpetrating this crime.  No good can come from that, your Honour.

FRENCH CJ:   All right.  Take us to Pemble.

MR WITHERS:   Pemble, very briefly, at page 118, in the bottom paragraph, the consideration in that case was whether or not on the facts it was appropriate that the court should:

a direction as to reckless indifference to the consequence of a contemplated act as an aspect of the crime of murder . . . A trial judge, in my opinion, must be careful in a case of that kind to examine the evidence closely to satisfy himself that that evidence could support a conclusion that the accused acted with reckless indifference.  A direction as to that aspect of murder when there is not material to warrant a conclusion that the accused acted with reckless indifference is likely to cause confusion in the minds of the jurymen; and ought not be given.

He goes on in that case to consider that there was enough evidence to support a direction as to reckless indifference.  In summing up on that point, your Honours, we say that this was a distraction for the jury.  It was confusing for the jury.  It required them to envisage the circumstance, the very, very scenario that my client had denied had happened and it distracted them from the real task at hand, which was making the clear‑cut decision as to whether or not my client was the perpetrator.

That required them to consider a lot of complex evidence from a melee involving 14 intoxicated youths on a dark street at Mayfield.  On that basis we say that a miscarriage of justice occurred through defence counsel’s request that the trial judge give the direction and through the trial judge’s agreement to give it.

Can I turn now to DNA evidence.  It is the second ground of the proposed appeal.  In this case, the question on our appeal is whether or not DNA evidence that is introduced at a trial by the Crown and is said to constitute a sample of the deceased’s DNA has any meaning and is admissible into evidence when it is not accompanied by any statistical interpretative evidence that indicates to the jury how many members of the general population would have shared the same DNA profile.

We say that the law in Australia should be as it is in England and as it is in the United States that DNA evidence should only be introduced at trial if it is accompanied by cogent statistical interpretive evidence.  As to the facts, it is common ground that DNA from the right hand of the accused – that is item 35 that was analysed by the Crown’s forensic biologist – was a partial profile and that is because the DNA sample, which was a blood sample, reflected the characteristics of the DNA profile of both the accused and the deceased. 

FRENCH CJ:   There were some common points between them, is that right?

MR WITHERS:   There is a common point between them, yes, your Honour.  The implication of that was that the deceased and the accused were both possible contributors to that DNA sample.  There was another very key DNA sample in the case, which I do not need to take your Honours to but it is at 1352 of the transcript and it concerned a chain.  There was a mixed profile that was found on that chain and it was analysed and, once again, it was found to contain DNA profiles that were consistent with the deceased and the applicant being possible contributors. 

The Crown’s forensic biologist said in that case where you have a mix of two profiles it is a partial profile.  The Crown went through that evidence and then came back to it a little bit later in the transcript and said, “Well, can you indicate to the jury what is the statistical likelihood of the – the statistical analysis that you conducted with respect to the chain?” and the forensic biologist said, “Well, on that point, the profile that I reviewed, there was a 1 in 11 likelihood that other members of the general population would share that profile”.  It has to be remembered that there were 14 individuals that were involved in this fight. 

The forensic biologist, Ms Franco, said at 1374 – I do not need to take your Honour to it but I will read it because it is critically important.  It is what the Crown’s own biologist said about statistics.  She said:

Yes, if a DNA profile’s obtained, then there has to be some sort of weight put onto the DNA profile so people will know, you know, how important or how incriminating or not incriminating it might be.

That is probably the best most basic statement of the importance of statistics in the context of DNA evidence.  Then you get to the summary, the Crown’s closing argument, at page 1430 of the transcript which I have provided to your Honours and I will take you to it, if your Honours have the transcript there.

FRENCH CJ:   Page 1430?

MR WITHERS:   Yes, your Honour.  This is a statement that is made by the Crown in closing just before a break and it says:

I’m just going to leave you with one more thought.  His right hand –

being my client –

gets swabbed by Constable Day and lo and behold on that swab is the blood, sorry the DNA of two people, [MB] and [the deceased] and lo and behold what does she tell you?  All the sites for each of them are present and the contribution to the area the swab was taken from, the DNA is there in generally equal proportions.

Then if the court goes over the page the Crown refers to the fact that there were some attempts made by – there was evidence that there were attempts made by my client to clean his hand after the incident, the fight with [the deceased] occurred and the Crown says that was not able to remove the DNA and then the Crown goes on to say the DNA is found:

On the hand that coincides with the hand, was used to whack the deceased in the neck with this bottle.

The Crown Prosecutor comes back at 1472 and makes another reference to it and says:

On the swab from his right hand it’s positive on the preliminary or screening test for blood and the DNA profile of both himself and the deceased is present and, as the lady said, in approximately equal proportions - after of course, this is all after the swab’s taken all after the washing and everything else that’s gone on with it.

He says on two occasions that the deceased’s DNA is on my client’s right hand and that is powerful evidence of the accused’s guilt.  That is something that the court addresses twice in the summing‑up to the jury.  I will come back to this shortly - I have not much time left but when I deal with the cases – at application book 102 the court gives a general direction about statistical and DNA evidence in the case and says:

Now what it tells you is another thing, but you might be reasonably able to conclude that if something matches the profile of the deceased’s DNA, and let us forget figures like one in eight billion or one in eight thousand million or whatever the statistics were because they really are just statistics, just using your commonsense and your logic and everyday experience, the chances that it is not the DNA of the deceased is, you might think, just improbable whatever the statistics might be.  Of course if you do not have a full profile it becomes more difficult and this is why we have got this one in eleven chance because there are only certain of the indicators present.  But if we are talking about the whole profile let us, I think, drop the technicalities and say well it is the deceased’s DNA.  Then the real question is, what does it tell you?

Then on the next occasion, at page 109 of the application book, and this is the critical paragraph that reiterated what the Crown’s submission was about the relevance and the probative value of the deceased’s DNA on my client’s hand, the court says:

For example, one of the powerful pieces that the Crown says is revealed by the DNA, is that it is on the accused’s hand, notwithstanding this the right hand, notwithstanding that it was washed or the wound was washed, the cut was washed, it was picked at, it was cleaned, it was wrapped in ice, it was put in plastic.  Yet the next day when a swab is taken from that hand, what do you find, you find the DNA profile of the deceased –

That is unambiguous –

and what the Crown says is, if you take that piece of evidence by itself of course it does not tell you anything, but if you take it with the rest of the evidence, it is a powerful indicator of the accused’s guilt, because what other possible explanation might there be for that particular piece of DNA evidence.  If you accept, as I say, it seems to me you can accept if you have a full profile of the DNA of the deceased, you can accept that it is the deceased’s DNA.

That suggested to the jury that it was a full profile that the Crown had obtained of the deceased’s DNA on my client’s right hand when that was not the case.  There was a partial profile, but of course there is no mention of the fact that there was no statistical evidence, interpretive evidence about the probative value of that DNA.

FRENCH CJ:   Yes.

MR WITHERS:   Can I very briefly go to the cases?  R v Rye, Victorian Court of Criminal Appeal, (2007) 178 A Crim R 353 - I do not need to go into that now, but what it says is there are two purposes for DNA. One is inclusionary, one is exclusionary. In other words, you can exclude a person as being a suspect if the DNA profile does not match. If one is inclusionary you can say, well that person could be a possible contributor but you need statistical evidence to demonstrate that. The way that the Victorian Court of Appeal put it is what statistical probability is there, based upon valid and appropriate statistical databases, that persons other than the accused may have contributed to the DNA. That is the key piece of evidence that was missing from this case. A similar statement is made by the New South Wales Court of Criminal Appeal in R v GK (2001) 53 NSWLR ‑ ‑ ‑

FRENCH CJ:   Your complaint really is either it should not have been admitted without some explanation of its statistical significance or, alternatively, there should have been some qualification, or heavy qualification, which was not given in the direction to the jury?

MR WITHERS:   That is precisely correct, your Honour.

FRENCH CJ:   All right.

MR WITHERS:   And it was misdescribed.  The last two points, your Honour – and I will not take your Honours to the case but R v Doheny and Adams [1997] 1 Cr App R, Lord Justice Phillips, as he then was, which says – and this is why we say this is an appropriate case for special leave - when one admits DNA evidence in a criminal trial you need clear statistical evidence about its probative value.  You need clear directions from the trial judge about the value and the importance of that evidence in the context of the entire case.

Lastly, in People v Coy, we say that the facts of that case are squarely on point here.  It was a murder when the deceased’s DNA and the accused’s DNA was said to have been found on the steak knife that was used to kill the deceased.  It was a mixed profile and the laboratory that conducted the analysis said, “Well, for a mixed profile we will not provide statistical evidence”.  That was admitted at trial.  The prosecutor said, “That is the accused’s DNA on the knife” and that was error.  People v Coy collected all the United States authorities on that point.

FRENCH CJ:   Thank you, Mr Withers.  Ms Woodburne, can we hear from you on the DNA question only, please?

MS WOODBURNE:   Yes, certainly.  The draft notice of appeal in this matter seeks an order that the conviction be quashed.  However, it is clear that what in fact is sought is an order for a retrial and that is of some significance, most particularly in regard to the applicant’s complaint concerning the DNA evidence which is raised for the first time in this Court and raised notwithstanding there are no special or exceptional circumstances.

That the matter is being raised for the first time is a matter of real prejudice to the respondent and of itself a matter warranting the withholding of special leave.  Now, that submission is made because had the matter been raised as a ground of appeal in the court below the respondent could have sought to adduce evidence by way of affidavit from the forensic biologist on the question of whether leave to rely upon the matter as a ground of appeal would be granted.

Leave was required in the court below because the criminal appeal rules require that in a situation where there is no objection to the admission of evidence in the trial, or no request for redirection, that leave be obtained from the court.  So, on that question of leave the applicant would have had to establish that there was an error of law or that there was a miscarriage of justice.

In this case there could not be no error of law because it was a situation where there was no ruling sought on the admission of evidence so the question then would become was there a miscarriage of justice.  It is on that question that the prosecution could have sought leave to adduce the evidence from the expert forensic biologist as to the statistical significance of the DNA figures which could easily have been given had there been an objection on the basis of relevance in the trial court.

It is apparent that defence counsel did not object to the evidence being led, and that is in the transcript provided by my learned friend at 1364, point 40, and then before additional evidence on that specific topic was given the defence counsel at trial requested, at transcript 1365, point 32 and his Honour facilitated at transcript 1367, point 18 the opportunity to spend time with the Crown expert forensic biologist in order to discuss the evidence she had given.

Clearly, such conference took place as was acknowledged at transcript 1369, point 26.  For all we know, counsel did not insist upon what could well have been unpalatable figures because it would have been obvious to him that the swab having been taken from the applicant’s own hand, as explained at transcript 1370, point 20, and that swab having been found to contain all of the DNA types in the profile that the applicant possesses and all of the DNA types in the profile that the deceased possessed, combined with the known masking effect explained by Ms Franco at transcript 1352, point 30 and further at transcript 1370, point 20 that very high probabilities could well have been yielded.

In our submission, in any event, this ground of appeal does not really raise, as the applicant contends in paragraph 8 of its reply, the need for this Court to consider the important issue of DNA evidence.  That is because there really is no controversy that the statistical evidence could have been induced and, indeed, would have, had there been an objection. 

Now, the applicant complains that the Crown Prosecutor wrongly described the evidence as showing that the deceased’s DNA was on the applicant’s right hand, along with his own.  However, if the Court goes to the transcript supplied by my learned friend at 1430, point 49 – firstly at point 26 is the material already drawn to the court’s attention but down the page at point 49 the Crown Prosecutor says:

I used the expression, their DNA, be more correct, the same profile as each other.

He corrected himself in that regard and he continued to use the correct expression then again at 1472, point 26.  What is stated there is absolutely in accordance with the evidence of the forensic biologist, which is contained in the references that I earlier gave your Honours at 1352, 30 and 1370, 20, there being no misstatement of her evidence.  Insofar as the trial judge told the jury at application book 102 – this is during the course of the summing‑up – that:

you might think it is not very hard to conclude that the profile that matches the deceased is the deceased’s DNA.  Similarly the profile that matches the accused is the accused’s DNA.

This was done in the face of the realities of the evidence which included that the deceased and the applicant were both indisputably injured and bled profusely in Hanbury Street that night.

FRENCH CJ:   One could read that element of the direction as perhaps suggestive of the proposition that the DNA does not add a lot to undisputed facts, but what about the direction that Mr Withers to earlier at 109 of the application book where the judge calls it “a powerful indicator of the accused’s guilt”.

MS WOODBURNE:   Yes, however, that has to be read along with what is said at application book 109 at the bottom of the page that the Crown says,

if you take that piece of evidence by itself of course it does not tell you anything -

but also at the bottom of the page at 110, in the last paragraph about five lines from the bottom:

the Crown is not contending that the DNA evidence itself will prove the guilt of the accused, it is simply part of the circumstantial case –

Then, at application book 111, the last paragraph:

I point out to you however that the Crown does not rely upon the forensic evidence or the DNA evidence to prove beyond reasonable doubt the accused’s guilt.

The approach of the trial judge not only reflected that there was bleeding from both the applicant and the deceased on the night and they indisputably had come into contact with each other, but it also reflected the approach taken by defence counsel to the DNA evidence which was to focus on the fact that DNA could be transferred by a number of means and it also was in accordance with the approach taken that only a small number of items had been analysed.

FRENCH CJ:   It is the location of what is said to be the deceased’s DNA on the accused’s right hand which, on the Crown case, is the hand that struck the fatal blow with the broken bottle that is emphasised in that part of the direction by the trial judge as “a powerful indicator”, not by itself, nevertheless, it is a powerful indicator, albeit in conjunction with other things.

MS WOODBURNE:   Yes.  His Honour said that but that has to be read in the context that there was blood with the profiles of the applicant and the deceased on other items of the deceased’s clothing.  This was really – although his Honour said it was “a powerful indicator” it really just was another piece of evidence in relation to that.  It was another piece in a case which the judge described as overwhelming because, quite apart from the circumstantial evidence, there were eyewitnesses who implicated the ‑ ‑ ‑

FRENCH CJ:   I appreciate all of that.  I just want to go back for a moment to the premise here.  The premise upon which the trial judge is directing the jury about the power, if you like, of that evidence is their finding – well, a finding that it was the DNA profile of the deceased.

MS WOODBURNE:   Yes, and that is because the way the evidence was treated by defence counsel by ‑ ‑ ‑

FRENCH CJ:   It did not contest that.

MS WOODBURNE:   No, it was not.  Whilst there had been, as I referred to earlier, a situation where defence counsel had met with the forensic biologist he met with her after this evidence was first adduced and before further evidence specifically in relation to the right hand was adduced and it is – I probably should take you to those pieces of material because what can be seen there is that although the forensic biologist did not say there were full profiles she said that on the right hand there were two contributors, unlike the chain where there were three, including an unknown person. 

There were two contributors.  They could be the applicant and they could be the deceased.  In circumstances where the swab was taken from the hand of the deceased and in circumstances where the forensic biologist had explained the masking effect – that is at transcript 1352, point 30 – it is quite understandable why counsel would not seek in those circumstances to draw the statistical figures.  It would have been very easy to do and certainly that is one of the reasons why this is not a vehicle for special leave because there is no dispute about the ‑ ‑ ‑

FRENCH CJ:   What did counsel for the defence say to the jury about the DNA?

MS WOODBURNE:   Counsel for the defence focused on the transferability of DNA.  There were two aspects, the transferability ‑ ‑ ‑

FRENCH CJ:   He could have picked it up from somebody else in the fight?

MS WOODBURNE:   Yes, and they – well, there was blood spurting a great distance from the neck of [the deceased].  That blood had made its way on to the pants of the applicant.  They had come into contact.  There was no dispute about that.  It is just that he said he was not the one that inflicted the fatal blow.  So although his Honour seemed to regard it as a power part of the circumstantial case the fact is it was just one of those pieces of evidence indicating that the profile in relation to both the applicant and the deceased made its way on to the applicant.  In the defence address - that has been provided in the material by my learned friend - but the relevant page ‑ ‑ ‑

FRENCH CJ:   There is a reference at 1508, I think, is there, a very brief one at about line 30?

MS WOODBURNE:   It starts at 1506 at the top of the page.

FRENCH CJ:   I see, yes.

MS WOODBURNE:   Defence counsel wisely, some might suggest, decides not to focus on that DNA evidence but what he does focus upon - and this was built from the cross‑examination of the forensic biologist - he focuses on the fact that it can be transferred by different means and naturally he draws to the attention of the jury that it can be done by spraying, which was the situation in this case after the deceased’s neck was struck with the bottle.  The other aspect was the fact that only a small number of the 40 items had been submitted for analysis.  His Honour gave a direction about that because his Honour said at page 111, about halfway down the page:

it is important that consideration to be given to that evidence –

that is, that only some items were examined –

and it is important when you look at the forensic evidence and the DNA evidence and whether you can rely upon it, to consider that there may have been other evidence that may have been uncovered that may have thrown a different light on some of this material and may suggest to you that you cannot be as confident as you might otherwise have been about the forensic or the DNA material.

His Honour, as I pointed out earlier, emphasises that by saying:

the Crown does not rely upon the forensic evidence or the DNA evidence to prove beyond reasonable doubt the accused’s guilt.

His Honour made that point at the time the evidence was given by the forensic biologist because your Honours will see in the materials, transcript 1382 at the top of the page.  At the completion of the re‑examination of Ms Franco his Honour said:

is it the Crown case the jury could be satisfied beyond reasonable doubt of the accused’s guilt based only on the DNA evidence?

CROWN PROSECUTOR:   No your Honour.  A culmination of a number of other things.

HIS HONOUR:   Yes, all right, but no is the simple answer.

CROWN PROSECUTOR:   No.

That was a point made in the presence of the jury at the completion of the evidence.  Your Honours, the point I began with was that this was not a case where there was an objection at trial, where the situation could have easily been addressed and the figures given and this is not a situation where there

was an appeal on this point which would have allowed the Crown to have adduced the figures and given the Crown the opportunity to demonstrate that had the figures been led there may not have been any concern.

The failure of the applicant to take that point is really seeking to take advantage of something that looks as though it has some ambiguity about it but in fact when the evidence of Ms Franco is read it can be seen that there were only two DNA profiles on the hand.  The swab had been taken from the hand of the applicant and when – it is reasonable to assume as a matter of logic, one would think, that it could be concluded that the applicant’s own DNA was on his own hand - and then when one takes into account Ms Franco’s evidence about the masking effect between the profile of the applicant and the deceased because they have a couple of DNA types in common, then in all those circumstances the evidence, in my submission, did not cause a miscarriage of justice.

If there had been any concern in the Court of Criminal Appeal about a wrong direction the prosecution would have had the opportunity of demonstrating that the proviso undoubtedly should have been applied in such an overwhelming case.

FRENCH CJ:   Thank you, Ms Woodburne.  Mr Withers.

MR WITHERS:   Very briefly, your Honours.  What this case demonstrates is exactly why this Court needs to provide the kind of guidance that was provided in R v Doheny about the admissibility of DNA evidence.  It is said against us that my client’s defence counsel may have made a strategic decision not to ask about the statistical probability associated with the DNA on the right hand.  It could equally be said that the prosecutor who adduced evidence about statistical probability with respect to the majority of other samples made the strategic decision not to ask about the statistical likelihood with the DNA on the right hand.

FRENCH CJ:   Your client’s counsel was not contesting as the trial was conducted that there was DNA from the deceased on his hand.  It was rather, was it not, that there might have been a lot of people with DNA from the deceased on their person that night and there was not adequate testing to demonstrate that?

MR WITHERS:   My client’s counsel did not contest it and that is unfortunate but it was incumbent on the prosecutor in this case, as it should be in any case involving DNA evidence, to put the sample into evidence and accompany it with statistical interpretive evidence.  It is not an obligation that was on my client’s counsel to cross‑examine about it.  It was an obligation on the Crown to put that into evidence.  It may be that the trial

counsel did not understand the significance of the lack of statistical information about it which is made apparent by the cases that we rely upon. 

Now, there has been some discussion about the evidentiary value of the DNA evidence.  Of course the DNA evidence by itself was not going to be enough to convict my client, but one cannot escape the fact that the court said, taking up what the Crown said, that the DNA evidence on the right hand was “a powerful indicator of the accused’s guilt”.

HEYDON J:   That was a quotation from the Crown’s submission.

MR WITHERS:   That is right.

HEYDON J:   It would have been improper for Justice Howie to have said that anything was a powerful indicator of the accused’s guilt.  He was merely summarising an argument.

MR WITHERS:   Yes, that is correct, your Honour.  He was summarising the argument, as we say in our submissions.  He is summarising or reiterating an argument that the Crown has made.  The Crown has said that “it is a power indicator of the accused’s guilt” even though that DNA sample was actually meaningless because there was no accompanying statistical evidence. 

The trial judge in his sentencing remarks said that a powerful case was made by the Crown based on DNA evidence.  That is at application book 132.  That is also something that is reflected in what his Honour said at application book 109 where he indicates to the jury that is a full profile even though it is a partial profile.

Lastly, as to the question of exceptional circumstances, this case does involve exceptional circumstances because my client was 17 when he stood trial and he has now been sentenced to 22 years in gaol.  There was evidence that went to the jury, and one can see what might have happened in the jury room, “How do we get away from the fact that the deceased’s DNA is on the accused’s right hand?”  We cannot get away from the fact that that could have been perceived by the jury to be powerful evidence, as the Crown said it was, when it was no evidence at all.  Those are my submissions, your Honour.

FRENCH CJ:   Yes, thank you, Mr Withers.

This application for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales raises two questions:  first, whether there was a miscarriage of justice at trial because of counsel’s decision to ask the trial judge to direct the jury on self‑defence, a defence inconsistent with the primary case that the applicant did not cause the death of the deceased; and, second, as to the admission of the DNA evidence, the observations concerning it by the Crown Prosecutor and the trial judge’s direction in relation to it.

The decision of counsel to ask the judge to leave self‑defence to the jury as a fallback position was a legitimate tactical decision and did not result in an unfair trial or a miscarriage of justice.  The defence case on the DNA evidence did not involve any contention that the DNA on the applicant did not come from the deceased.  This was consistent with the proposition that the DNA evidence added little to undisputed facts about the applicant’s involvement in a fight with the deceased.  The evidence was not objected to, nor was the trial judge’s direction objected to.  It did not in the circumstances, in our opinion, give rise to a miscarriage of justice. 

Despite the capable argument of Mr Withers, for whose assistance the Court is very grateful, the application must be dismissed.

AT 12.09 PM THE MATTER WAS CONCLUDED