Papaioannou v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0004

ANDREW PAPAIOANNOU	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2023
DATE OF JUDGMENT:	8 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 43
JUDGMENT APPEALED FROM:	DPP v Papaioannou [2021] VCC 1354 (Judge Todd)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of arson – Whether substantial miscarriage of justice occurred by reason of evidence given by prosecution expert witnesses – Whether trial judge should have discharged jury – Application for leave to appeal refused.

Maric v The Queen (1978) 20 ALR 513 referred to.

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Counsel
Applicant:		Mr SJ Tovey
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KAYE JA:

Introduction and summary

On 20 August 2021 a County Court jury found the applicant guilty of arson following a 15 day trial. The charge related to a fire that significantly damaged the house owned by Tamara Kirkland,[1] the then de facto partner of the applicant.
[1]A pseudonym.
It was alleged that after a series of incidents in which the applicant had been verbally and physically abusive to Ms Kirkland, she left the property with the assistance of their mutual friend, Scott Cameron, and the police shortly after 10:15 pm. The prosecution case was that at 11:40 pm the applicant ignited a bundle of advertising pamphlets in the living room of the property. Expert evidence from Laura Noonan and John Kelleher was called to establish that, upon later analysis with respect to the possible presence of flammable liquid, moderately evaporated petrol was detected on the pamphlets.
The applicant was previously granted an extension of time in which to bring an application for leave to appeal against conviction. He now seeks to do so on the following grounds:[2]
[2]Ground 4, a competence of counsel ground, was abandoned prior to the hearing. The applicant also abandoned an application for leave to appeal against sentence.
1(a).The admission into evidence of the ‘smell test’ from Noonan created a material unfairness to the accused and caused a miscarriage of justice.
1(b).That the ‘smell test’ went beyond any expertise of the witness and its admission into evidence was impermissible opinion.
2.That the evidence of Kelleher in relation to quantity and his ‘facetious’ comments created a material unfairness to the accused that could not be remedied.
3.That in combination Grounds 1 and 2 created a high degree of necessity to discharge the jury and the learned trial judge should have done so on the application of Defence.
5.A substantial miscarriage of justice occurred by virtue of the combination of matters referred to in grounds 1(a), 1(b) and 2, including:
a.The ‘petrol odour’ evidence of Noonan;
b.The evidence of Kelleher in relation to petrol quantity; and
c.The ‘facetious’ comments made by Kelleher during the course of his evidence.
For the reasons that follow, leave to appeal against conviction should be refused.

The prosecution case at trial

Events of 27 March 2017[3]

[3]The criminal behaviour of the applicant prior to the act of arson was the subject of earlier criminal proceedings on an indictment containing one count of arson and various charges relating to offences committed against Ms Kirkland and Mr Cameron. On 3 October 2019 he pleaded guilty before a County Court jury to one charge of common law assault, which offence comprised three incidents involving Ms Kirkland. He pleaded not guilty to the remaining charges. The jury was hung with respect to the charge of arson. The applicant was acquitted of all other charges. On 29 November 2019 the applicant was, without conviction, fined $3000 in respect of the common law assault: see DPP v Papaioannou [2019] VCC 1978 (Judge Trapnell).

In mid-2016 the applicant began cohabiting with Ms Kirkland in her Rosebud home. In early 2017 he became unemployed.
On 27 March 2017 Ms Kirkland assisted the applicant to complete an online job application. Shortly thereafter he became verbally abusive. Ms Kirkland left the home with her two dogs for a period of one hour. Upon her return, the applicant continued to shout at her before repeatedly punching his television. The applicant later approached Ms Kirkland in the kitchen and punched the air in front of her face. He calmed for a period while they watched television together.
Sometime later the applicant threw Ms Kirkland’s cup of tea on the ground and swore at her. When she went to get some paper towelling the applicant grabbed her from behind in a bear-hug. He squeezed her tight enough for her arms and chest to hurt. When released by the applicant Ms Kirkland went to her car, intending to drive away. The applicant entered the car to prohibit her from leaving. Ms Kirkland got out of the car, ran down the street and hid. She did not answer a phone call from the applicant, who left her a lengthy voicemail.
At 8:44 pm Ms Kirkland telephoned Mr Cameron and arranged to meet him at the local shops. Mr Cameron arrived, in the company of his mother, and they planned to return to Ms Kirkland’s home to collect her dogs and some of her belongings so that she could spend the night at the Camerons’ house.
At 9:38 pm the applicant called 000 and advised that Ms Kirkland was missing. When asked her date of birth he became frustrated and hung up. At 10:05 pm the applicant made a second 000 call, told the operator his ‘missus has gone missing’ and that she was suicidal. During this second phone call, Mr Cameron arrived at the address and told the applicant that Ms Kirkland was present to collect her dogs and that she would stay with him for the night.
Ms Kirkland entered the house. The applicant locked the door before Mr Cameron could follow. He then tightly grabbed Ms Kirkland by both hands and she struggled against him. When she began screaming, Mr Cameron used a baseball bat to smash the window pane next to the door in an attempt to get in. Ms Kirkland managed to free herself as the glass smashed. She ran outside.
Whilst this was occurring, Mr Cameron’s mother called 000. Police arrived at 10:16 pm. The applicant was observed by the police officers in attendance to be drunk and unsteady. After receiving police assistance, Ms Kirkland left in her own vehicle, following Mr Cameron and his mother to their home in Berwick.
The applicant called both Ms Kirkland and Mr Cameron multiple times until 11:17 pm. The calls went unanswered.

The arson

At 11:43 pm, Ms Kirkland’s neighbour telephoned 000 to request fire and police services. He said that he saw the applicant in the driveway of Ms Kirkland’s home before making the call.
The applicant also called 000 to report the fire.
The fire brigade arrived at 11:52 pm. The applicant was the only civilian present at the scene. He told officers that he had woken up to the house being on fire. He was observed to be visibly distressed and intoxicated. He attempted to use a garden hose on the fire and, three times, tried to get back into the house. Police officers who attended also observed the applicant to be intoxicated.
The fire caused extensive damage to the lounge area and spare room of the house. There was also some damage to the dining area.

Prosecution expert evidence at trial

Given the proposed grounds of appeal, it is necessary to detail part of the evidence given by each of Laura Noonan and John Kelleher.

Evidence of Noonan

Laura Noonan is a forensic officer at the Victoria Police Forensic Services Centre. She attended the scene on 28 March 2017 as a fire investigator to determine the fire’s area of origin and, within that area, the source of ignition.
Ms Noonan stated that she deemed a pile of pamphlets with burnt exterior surfaces to be an item of interest. In the process of so doing, she used a tool called a photoionisation detector or PID. She explained that the PID detects and provides a reading of hydrocarbons present in an area (in parts per million) by ‘sucking in’ the atmosphere around an object with a vacuum pump. The PID alarms upon detecting hydrocarbons at 50 parts per million. Hydrocarbons are present in flammable liquids and other materials commonly found in houses such as carpet, plastic and furniture foam. If the hydrocarbons are from a flammable liquid the PID reading will increase very rapidly and often accelerate to 1000 or 1500 parts per million.
Ms Noonan described a PID reading as an indicative tool and a non-specific technique. It was not used to conclusively determine the presence or absence of a flammable liquid, but rather to assist an investigator select samples of material for later laboratory analysis to avoid having to ‘sniff everything oursel[ves] with our nose to see whether it smells like there’s an accelerant there.’
Ms Noonan said the PID gave an elevated reading around or amongst the pile of pamphlets located on the floor in front of the window. That was the only elevated reading obtained at the scene. Ms Noonan described the pamphlets as being wet, with very brittle exposed surfaces with a strong ‘petrol-like odour’. She collected them for laboratory testing and analysed them using a gas chromatogram mass spectrometer or GCMS. That analysis detected moderately evaporated petrol on the pamphlets.
Ms Noonan formed the opinion that the area of origin of the fire was the floor space between an entertainment unit and couch and in front of the window, being the area in which the pamphlets were located. There were no obvious accidental ignition sources identified. Electrical appliances and wiring were excluded as ignition sources. The most likely source of ignition was direct ignition of the pamphlets by a match or cigarette lighter. The presence of petrol on the pamphlets would have assisted with the initiation and establishment of the fire.
When cross-examined about the PID, Ms Noonan accepted that it was just a screening tool. She added that as such, a PID reading would not be recorded in notes taken at the scene as it is not a recognised technique of determining the presence of a flammable liquid. She said that observations about odours would not be noted for the same reason.
In questioning Ms Noonan about the absence of elevated PID readings as well as the absence of ‘obvious odours’ in the rest of the house, defence counsel termed the PID a ‘sniffer device’. Counsel then turned to the use of the PID on the pamphlets. The following exchange occurred.
… you used the PID on them? --- Yes.
That gives you a reading? --- Yes.
Or it triggers or whatever the word is? --- Yes.
You either lift them up or pick them up; is that right? --- Yes, I pick them up.
Smell them? --- I can’t recall whether I brought them to my nose to smell them but I do recall smelling an odour.
Yes? --- As I picked them up and put them in the bag.
Yes. They give off a petrol odour, I think you said? --- Yes, that’s right.
And that’s all obviously at the scene at the time you put them in the arson bag? --- Yes.
Now, what you say is – you were asked questions by [the prosecutor] about the particular scientific basis or the reason for your seizure of these catalogues or pamphlets? – Yes.
And I think, as I understand, you nominated three reasons - one – tell me, if I’m right – one is that they’re in the area of origin? --- Yes.
Two is that the PID reacted? --- Yes.
And three is that they gave off this odour? --- Yes.
And you’ve indicated yesterday strong petrol-like odour? --- Yes.
All right. So that’s – you say, look, that’s the situation at the scene? --- That’s right.
That’s what you were encountered with? --- Yes.
Clear memory of all of that? --- Yes.
And that’s the evidence you give to this jury; correct? --- That’s right.
No doubt whatsoever? --- No.
Counsel then put to Ms Noonan a passage of transcript from her cross-examination at a preliminary hearing in which she said:
… I didn’t smell the sample myself because that’s why we have the PID, it saves us sniffing everything, but I would expect that if you, yeah, had have held those pamphlets up to your nose that perhaps there could have been an odour. Yeah, I can’t say for certain, I’m sorry.
When questioned about the apparent inconsistency, Ms Noonan explained that there was a difference between deliberately sniffing an item by physically bringing it up to one’s nose and smelling an odour. She reiterated that using the PID saved investigators having to ‘physically sniff’ a sample, but that if there was a volatile odour in the atmosphere, she would expect to smell it because ‘you can't turn your nose off.'
The cross-examination continued for some time. Ms Noonan stated that the ‘petrol-like odour’ she recalled smelling was not recorded in her scene notes because her opinion was ultimately based on the confirmation techniques used later in the laboratory. Further, her nose was not a scientific instrument that could be calibrated and used to quantify amounts. She agreed with the proposition that a smell was an unreliable indicator. When asked if a reason for selecting the pamphlets for further analysis was because the ‘petrol-like odour’ was ‘pretty significant,’ Ms Noonan agreed. She added that even if she had not smelt the ‘petrol-like odour,’ she would probably have selected the pamphlets for analysis because, in part, of the PID alarm. She emphasised that no one factor, be it a PID alarm, a smell or burn patterns, is relied on in isolation. In another passage of her evidence, she described fire investigation as a ‘scientific art’.

Evidence of Kelleher

John Kelleher is the team leader of the Fire and Explosion Unit at the Victoria Police Forensic Services Centre. He was the direct supervisor of Ms Noonan at the relevant time (and still is).
The defence case was that the pattern of hydrocarbons produced by the GCMS analysis was explicable by the presence of hydrocarbons in the pamphlets themselves. In this context, Mr Kelleher was cross-examined about Ms Noonan’s decision to not take a ‘control sample’ from the fire scene.
Defence counsel suggested that a control sample was necessary to identify contaminations and false positives in the GCMS analysis undertaken in a laboratory. Mr Kelleher disagreed with that proposition. The following exchange then occurred.
In this situation, if one went to, for example, the neighbour’s mailbox and picked up a copy – a copy of the exact same catalogues, wouldn’t that be a pretty easy way to find a control sample here? --- It would and it would answer some – some, some questions about the – about the sample, I suppose – what companies they were from and so on. I don’t really know that it would serve much other purpose.
Right. Isn’t – and I know you’ve rejected this but, I mean, in the absence of having a comparative sample, isn’t it right you’re not able to isolate what hydrocarbons are being produced by, you know, in this case the pamphlets or in another case the glue or as a carpet sample, that sort of thing? --- Well – well, it’s not possible to – to isolate them as – as being peculiar to the pamphlets, but I think if I got that sort of – if I got that sort of result from pamphlets every time, I’d be putting them in my petrol tank. I’d – that there was petrol on the pamphlets.
Right. The – and you’re talking about what the sniff, the feel – those sorts of observable phenomenon? You’re saying they wouldn’t appear in the way that we normally experience pamphlets? --- I’m sorry, what wouldn’t appear in a normal way?
So you’re talking about – ‘I’d put them in my petrol tank’? --- Oh, what I mean is – all right, that was a facetious remark and I apologise for it.
No, no, I’m just trying to understand the --- ? If the quantity of petrol that was on the pamphlets would mean that if that actually belonged to the pamphlets --
…The pamphlets would be mere valuable for their petrol content than for – I mean – if you’re suggesting that all – all other pamphlets that were – all other pamphlets of the same type had petrol, that means there would be an enormous amount of petrol involved.
In another passage of cross-examination Mr Kelleher said that petrol contains a combination of hydrocarbons not seen in other substances. As petrol is so valuable, it would not be ‘wasted’ by putting it in other products.
In re-examination, the prosecutor asked Mr Kelleher about his ‘facetious’ remark. The following exchange occurred.
You said yesterday that the quantity of petrol found on these pamphlets was such that if it was – if it was present on – on a mass production, as it were of such pamphlets, there would be an enormous amount of petrol involved? --- Yes, that’s right.
The prosecutor then asked if that statement was based on his knowledge and training. The trial judge intervened and remarked that Mr Kelleher’s evidence was that the analysis could detect the presence or absence of petrol but could not quantify the amount of it. Her Honour stated that the evidence was simply that it is a ‘non-quantitative test’.
Mr Kelleher had earlier given evidence that when he said that the particular analysis undertaken in this case showed a ‘significant amount of fuel’, that was relative to all the tests run. He said the test could not quantify how much fuel was present, but that compared with other tests run, it would be possible to conclude that there was a fair or significant amount present. It was not a trace or low level amount.
In the absence of the jury the trial judge stated that she had understood the evidence to be that petrol was detected on the pamphlets and that the process of detection was not a quantitative process. She proposed to direct the jury that the scientific process was one of identification rather than quantification and that the prosecution did not rely on a proposition that there was a great deal of petrol present. Both counsel submitted that the matter should be addressed through the witness.
Mr Kelleher was then asked a number of questions in the absence of the jury. He was asked to reconcile his evidence that the testing was not quantitative with his remark that if all other pamphlets of the same type contained petrol, ‘there would be an enormous amount of petrol involved.’ He stated that this remark referred to his observation that advertising material is printed in the tens and hundreds of thousands, so if they were printed using petrol it would be a substantial amount of petrol. He added that thousands of litres of solvent are used in a print run, so it was unlikely that petrol would be used in those sorts of quantities because it is a very expensive solvent.
Mr Kelleher also stated that while the laboratory analysis does not provide a measure of how much fuel is present, it does provide an indication of where the result sits in comparison to a range of results. In this case, the result indicated a ‘fair amount’. When the trial judge asked whether that assessment involved a degree of speculation because the ‘fair amount’ could not be measured, Mr Kelleher said:
A degree, your Honour. It is, as I said, a matter of having run, I don’t know many thousands of these over the years. If I wanted to reproduce it, I would – I would start in the millilitre range rather than the microliter range. Now, I – and that’s what I call a fair amount, so I can’t go any further with it.
The prosecutor then revisited the issue in front of the jury. Mr Kelleher stated that his remark about there being an ‘enormous amount’ of petrol involved was based on the premise that if petrol was being used as a solvent in a print run of hundreds of thousands of documents, very large quantities of petrol would be required.
The following exchange then occurred as to Mr Kelleher’s use of quantitative descriptors for the laboratory result obtained in this case.
… the testing does not involve quantitative analysis? --- That’s right.
There’s no measurement. It’s – it’s highly sensitive testing that can detect up to levels as low as five or 10 microlitres? --- That’s right.
Is that right? And I think you may have used the expression before the break of there being ‘a fair amount here’, and that statement is in the context of the sensitivity of the testing; is that correct? --- Yes.
All right. And what’s – what’s revealed by the testing is certainly indicative of a very small quantities? --- That’s right.
Detected on the test; is that right? --- Yes.
Yes, all right. And I think you may have used at one point the expression, ‘trace amounts’. And when you use that expression does that – does that refer to amounts even lower than the five to 10 microlitre level? --- Oh, no, that refers to amounts around the five to 10 microlitre level. I’d call those trace amounts.
All right. What colloquially I think might have been referred to in this case is ‘a fraction of a drop’? --- Oh, that’s right.
Yes, all right. And just – just by way of the last matter on this point, I think you’ve given evidence about this on a previous occasion when you were asked, ‘Beyond saying a particular sample didn’t need enhancement before it could be identified as part of a chromatogram, therefore it was more than five or 10 microlitres, can you say anything more about the quantities involved?’ And you answered ‘No’ when asked that question. And was that – is that – that’s still correct? --- It’s correct in that the test does not provide a measure of how much was there.

Defence counsel then made an application to discharge the jury on the basis that the language used by Mr Kelleher suggested that the quantity of petrol was evident in the laboratory analysis undertaken of the pamphlets. That application was refused. Thereafter the trial judge gave the jury a direction (which we will set out in full when discussing ground 2) to the effect that Mr Kelleher’s evidence was that the analysis detected the presence of petrol and there was no evidence as to the quantity present other than to say that it was detectable in the context of a highly sensitive test.

Defence expert evidence at trial

The defence argued that the prosecution could not establish beyond reasonable doubt that the fire was ignited by the applicant. Central to that argument was the asserted inability of expert evidence to prove the presence of accelerant (petrol) on the pamphlets. Underpinning that argument was criticism of the manner in which Ms Noonan undertook the fire investigation including her failure to adequately consider possible accidental causes of the fire, take sufficient samples from the fire debris and take a control sample.
The defence called Dr Walter Stern, a consultant chemist and forensic scientist and retired fire investigator, to make these criticisms (after they were put in cross-examination to Ms Noonan and Mr Kelleher). Dr Stern also gave evidence that the GCMS analysis did not definitively indicate the presence of moderately evaporated petrol because there are other substances such as inks, glues, cleaners and solvents which contain very similar petroleum hydrocarbon profiles to petrol. Further, the analysis did not show the presence of naphthalenes and higher alkanes. He said that petrol and moderately evaporated petrol present in a sample taken from fire debris would be expected to contain naphthalenes.

Grounds 1(a) and 1(b) - ‘Smell test’

The applicant contends that the evidence of Ms Noonan that the pamphlets had a strong odour led to a miscarriage of justice. First, the evidence implied that there was so much petrol on the pamphlets that it could be smelled even in a burnt state. The evidence assumed ‘great significance’ before the jury and this was compounded by her later statement that ‘everyone’s familiar with the smell of petrol’. Second, that evidence was not contained within her expert report nor given in evidence at a preliminary hearing. As such, it was in breach of Practice Note SC CR3 ‘Expert Evidence in Criminal Trials’ (‘Practice Note’). Third, she was not qualified as an expert in smelling petrol fumes.
The respondent contends that Ms Noonan’s evidence of odour did not cause a miscarriage of justice, substantial or otherwise. First, the evidence formed no part of her opinion concerning the presence of flammable liquid on the pamphlets. Second, defence counsel did not object to the evidence when given at trial but rather chose to focus upon it as a method of attacking Ms Noonan’s credit.

Analysis

It is plain that Ms Noonan’s evidence concerning odours was not an opinion based on her training, study or experience.[4] Rather, her evidence that she detected a ‘petrol-like’ odour was based on what she perceived olfactorily.[5] Moreover, it was abundantly clear from Ms Noonan’s evidence that any odours detected at the fire scene were nothing more than preliminary observations. In this regard it is notable that she used the phrase ‘petrol-like’ odour rather than ‘petrol odour’. At all times she made plain that an observed odour (or indeed an elevated PID reading) was only relevant as one factor contributing to the decision to select items for later laboratory analysis. Only at that later stage could the presence or absence of flammable liquid be identified. In this regard, the context of the impugned comment ‘everyone’s familiar with the smell of petrol’ is illuminating:
… It’s a petrol-like odour … so – and because I can’t confirm that that’s what it is, but I think everyone’s familiar with the smell of petrol and so that’s – I’m confident to say ‘petrol-like odour’ but if it was proven wrong on the instrumentation I wouldn’t dispute that.
[4]See Evidence Act 2008, s 79(1).
[5]See Evidence Act 2008, s 77.
It follows that her observations of odour were irrelevant to the basis of her opinion that there was moderately evaporated petrol on the pamphlets. Accordingly, clause 6.1(d) of the Practice Note had no application since it requires ‘observed facts … on which each opinion expressed in the report is based’ to be included in the relevant report. As Ms Noonan was not presented as an expert in smelling petrol fumes and did not give an opinion as to the presence of petrol based on an odour, cls 6.1(f) of the Practice Note, which refers to an issue that falls outside of an expert’s specialised knowledge, is also inapplicable.
Further, there was no danger that the jury would assume that the observed strong odour of a ‘petrol-like’ substance implied a large quantity of petrol was present. Ms Noonan repeatedly stated that smell was not quantifiable and that her nose was not a calibrated instrument. Also, the prosecution case depended on the mere presence of petrol. Quantity was irrelevant to the inference the jury was asked to draw that it was the applicant who purposely damaged the property by fire. If petrol – in any amount – had been added to the pamphlets in the living room and those pamphlets were the source of ignition, the jury was likely to reason that the fire was deliberately lit and that it was the applicant, being the only person present at the property, who did so. The defence case was that the applicant did not ignite the fire and the detected presence of ‘moderately evaporated petrol’ on the pamphlets was explicable otherwise than by deliberately added petrol. There was no issue at trial that the applicant did not know or believe that damage or destruction by fire was the likely result of his actions because only a small amount of petrol was on the pamphlets. And the jury had the benefit of Dr Stern’s evidence as to alternative explanations for the GCMS results obtained by Ms Noonan.
Finally, defence counsel made a forensic choice to rely upon Ms Noonan’s evidence of the ‘petrol-like’ odour as an alleged prior inconsistent statement. Ms Noonan had not previously given evidence of smelling a petrol-like odour.[6] Defence counsel was cognisant of that fact. At or after the time the evidence arose (given that the cross-examination continued for three days after the evidence of odour had been given) counsel could have sought a discharge of the jury or sought a corrective direction from the judge. He chose not to. That choice was sound. It was an opportunity central to the defence strategy to discredit the prosecution expert evidence and persuade the jury to accept the expert evidence of Dr Stern. Indeed in his closing address defence counsel argued that the inconsistency was ‘just another example’ of Ms Noonan contradicting herself, being entirely unreliable and being very far from ‘meticulous, cautious and conservative’ in her approach to the investigation. Counsel argued that the combined ‘changes, differences, inconsistencies, contradictions’ were the prism through which the jury should view and thereby reject the evidence of Ms Noonan.
[6]The witness had previously given evidence at the committal, the first trial and a pre-trial examination under s 198B of the Criminal Procedure Act 2009.
It is also telling that the discharge application by defence counsel after the evidence of Mr Kelleher made no reference to the alleged unfairness arising from Ms Noonan’s evidence, either alone or in combination with that alleged to arise from Mr Kelleher’s evidence.
Accordingly, grounds 1(a) and 1(b) are not made out.

Ground 2 – Kelleher remarks

The applicant contends that it was an agreed position between the parties that the scientific evidence was not quantitative. Nonetheless Mr Kelleher used quantitative descriptors. First, the reference to the ‘enormous’ amount of petrol in his self-described facetious remark reproduced above. Second, multiple references to a ‘fair’ or ‘significant’ amount, as opposed to a ‘trace’ amount, of petrol in the GCMS result. In oral argument the applicant’s counsel submitted that these non-numerical adjectives were misleading and likely to have led the jury to conclude that there was a lot of petrol on the pamphlets. The applicant does not criticise the direction given by the trial judge that the testing says nothing about the quantity of petrol detected. Rather the applicant submits that the unfairness caused by the evidence was incurable.
The respondent contends that the true meaning of Mr Kelleher’s facetious remark was clarified beyond any doubt in re-examination before the jury. Further, it was clear that the scientific evidence was not quantitative. The descriptors ‘fair’ or ‘significant’ to describe the amount of petrol detected were clearly used in comparison to other similar tests conducted by Mr Kelleher. Further, the strong direction from the judge as to the import of the prosecution expert evidence – its inability to say anything about quantity and the manner in which the jury should approach it – cured any unfairness, assuming the evidence had in fact created unfairness.
Analysis
The prosecution expert evidence was clear that the GCMS analysis did not and could not establish the exact quantity of petrol detected on the pamphlets. It was also clear that the GCMS analysis was a highly sensitive test that reported results in microliters or ‘a fraction of a drop’.
Against that background it is important not to conflate the two complaints made about the evidence of Mr Kelleher.
The first is his self-described facetious remark, reproduced above. It was the only time Mr Kelleher used the descriptor ‘enormous’. Even if it was not clear at the time he made the remark that Mr Kelleher was talking about the amount of solvent used in a print run, the question and answer given in re-examination clarified the matter. The jury could not have misunderstood that his evidence was that there was an enormous amount of petrol on the pamphlets taken from the fire scene.
The second is his use of the words ‘fair amount’ or ‘significant amount’ when describing the GCMS results obtained from the pamphlets in comparison to a suite of other GCMS tests. Although these words are undoubtedly descriptors of relative volume, the jury could not have taken them to mean that Mr Kelleher was giving evidence of the amount of petrol detected on the pamphlets. Rather, Mr Kelleher was challenged about the GCMS results showing the presence of any extraneous petrol, and his use of these relative descriptors was in answer to that challenge. In other words, his evidence was that the GCMS analysis, in indicating that the pamphlets showed the presence of moderately evaporated petrol, was not in doubt.
In this regard, it is notable that Ms Noonan also used the word ‘significant’ when cross-examined as to the sensitivity of the GCMS process and detectable levels of flammable liquids. She said that 10 microlitres was a safe detectable level and that samples with lower levels of three to five microlitres are often obtained. She continued:
… So we do have to adjustment (sic) our sensitivity, but for our everyday samples we don’t really like to venture down that low because it does bring about a level of uncertainty and that’s when you are really looking at contaminants as well, so we know that at the level of 10 microlitres what we’re seeing is a significant sample.
The following exchange then occurred.
And we’re still, we’re still in that fraction of a drop? --- It’s still very small, yes.
Aren’t we? --- Yes, still.
So that word is relative to the sensitivity of the testing? --- That’s right, yes.
And beyond that quantitatively you can’t say anything really? --- No, that’s right.
Even if there was any confusion on the part of the jury about either of these issues, either separately or together, the position was curable. The trial judge did so with a succinct, clear and powerful direction at the conclusion of Mr Kelleher’s evidence. It was in the following terms.
My next direction of law relates to some of the evidence that arose yesterday. You will recall that the witness, Mr Kelleher, agreed with the previous witness, Ms Noonan, that the testing of the samples found at the scene, subjected to the testing, showed moderately evaporated petrol. You have also heard that conclusion challenged in a number of ways by [defence counsel] – the absence of the naphthalenes, the inconsistency with the Australian Standard for such testing and for another example – it was put to the witness that other hydrocarbons, for example, those found in glue or carpet or those used in the printing industry could confuse the testing and invalidate that opinion. Mr Kelleher agreed that a great many things contain petroleum-based hydrocarbons in that context.
In giving his evidence on that subject, the witness used some turns of phrase and some concepts that are of no assistance to you in the case and I direct you, as a matter of law, to put them aside in your consideration of his evidence.
You will recall that the witness made some remark about putting pamphlets in his petrol tank, a remark that even he described as ‘facetious’, and there are a couple of other remarks too.
Importantly, the witness also gave evidence that this headspace analysis technique is highly sensitive, it can detect very small amounts of components in a sample. He said that the sensitivity of this testing has the capacity to go below 10 microlitres and perhaps even detect five microlitres, otherwise expressed as ‘a fraction of a drop’.
In re-examination, Mr Kelleher was asked to clarify his language about when he uses terms such as ‘enormous amount’ and he agreed that this statement was in the context of a proposition that petrol was being used as a solvent in a print-run of pamphlets of potentially hundreds of thousands of pamphlets.
On questioning by [the prosecutor], Mr Kelleher agreed that the testing involved in this case does not involve any quantitative analysis. There is no measurement of how much petrol was potentially there. He confirmed that it is a highly sensitive test that can detect levels as low as 5 or 10 microlitres and ‘a fair amount’ was a term he used in that context of the sensitivity of the testing. He confirmed that references to ‘trace amounts’ refers to amounts around the 5 to 10 microlitre level, otherwise expressed as ‘a fraction of a drop’. He confirmed that the test undertaken by his team does not and cannot provide a measure of how much petrol was there.
I am directing you that this is the state of the evidence as it relates to quantity in this case so as to clarify any confusion that may have arisen. There is no evidence in this case as to the quantity present other than to say, according to this witness, it was detectable in the context of a highly sensitive test.
Again, what you make as to whether the presence or absence of petrol on the sample will be a matter for you after you have listened to all of the evidence in the case. You will make that assessment after hearing all the evidence in the case and assessing the witnesses who gave evidence on the subject. Remember, that it is matter for you as judges of the facts. Experts are there to assist you but they do not get to decide the facts in this case.
In making your judgment of the fact about whether there is petrol detected in the process undertaken by Ms Noonan, it is the agreed position of the parties, both prosecution and defence, that the testing does not and cannot indicate anything about quantity. The sensitivity of this testing has the capacity to go below 10 microlitres and perhaps even detect five microlitres, otherwise expressed as ‘a fraction of a drop’. You should approach your assessment of the expert evidence in this case on that basis. That’s my second direction of law to you today.
This direction, particularly the parts emphasised above, was followed in her Honour’s charge with an exemplary direction as to contested expert evidence. The jury was left in no doubt as to the state of the evidence and what use they could make of it. Importantly, they were told that there was no evidence as to the quantity of petrol detected on the pamphlets by the prosecution’s expert witnesses.
Ground 2 is not made out.

Ground 3 – application to discharge jury

After the conclusion of Mr Kelleher’s evidence, defence counsel made application to the trial judge for a discharge of the jury.
The application was based on Mr Kelleher’s evidence alone. Defence counsel made no reference to the evidence of Ms Noonan. To the extent that ground 3 is expressed to refer to the evidence of Ms Noonan in combination with that of Mr Kelleher, it is misconceived. Defence counsel referred to the use of quantitative descriptors by Mr Kelleher and submitted that despite his evidence that the analysis was not quantitative, the clarification given in re-examination and the proposed direction of law about the matter, the prejudice was incurable.
The judge refused the application. As we have discussed in considering ground 2, she was correct to do so.
Maric[7] and other cases make clear that in a case such as this any appeal is not against the failure to discharge the jury, but against the conviction, so that the issue for determination is whether a substantial miscarriage of justice has occurred. We are not persuaded that any miscarriage of justice (substantial or otherwise) was occasioned by the continuation of the trial after the admission of the evidence to which grounds 1 and 2 relate. Any prejudice, if it subsisted after the re-examination of Mr Kelleher, was curable and cured by the trial judge’s direction set out above.
[7]Maric v The Queen (1978) 20 ALR 513.
It follows that ground 3 is not made out.

Ground 5 – cumulative prejudice

Given the conclusions reached with respect to the preceding grounds, it follows that ground 5 is not made out.
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[2023] VSCA 43

8 March 2023