Police v Le Platrier

[2010] NSWLC 22

Local Court of New South Wales

CITATION:	Police V Le Platrier [2010] NSWLC 22
JURISDICTION:	Criminal
PARTIES:	Police Le Platrier
FILE NUMBER:	00079590/2010
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	06/29/2010
MAGISTRATE:	Magistrate Heilpern
CATCHWORDS:	DNA evidence, admissibility, sibling issues.
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 Evidence Act 1995
CASES CITED:	R v Forbes [2009] ACTCA R v Rowe [2004] SASC
TEXTS CITED:
REPRESENTATION:	Ms Sala, Police Prosecutor Mr Blair for the Defendant
ORDERS:

Reasons for Decision

1 The defendant is charged with Break Enter and Steal. The prosecution rely on DNA evidence. The defendant challenges that evidence.

2 There are two issues in this case. The first is whether to admit a statement from an analyst as to probabilities (the first statement). The second is whether on the basis of the remaining evidence the defendant ought be convicted.

Uncontentious Facts

3 At 4.30am on 22 December 2007 three males were seen outside a shop on King Street, Newtown. They were seen to smash the shop window, grab a plasma television, and run away. A witness describes the first offender as wearing a dark reddish coloured top, had short hair and slim build. The second offender was described as having lighter coloured hair. The third male offender was described as wearing a grey T-shirt, slightly larger, and having light brown hair. They were described as 18 to 20 years old.

4 Later that morning a maroon jumper, like a Queensland State of Origin jersey, with a glove inside, was located under a car about 40m away in the direction the three fled, and a hammer was located near the shop. The civilian witness who located the jumper and glove thought they had blood on them. These three items were collected by police and delivered to DAL for analysis.

5 On 16 July 2009, for reasons which are unknown, the defendant was arrested as “he had been identified as a suspect for an old break and enter matter that happened in 2007” Statement of Const Adam Goodhew, at paragraph 7.. A buccal swab was taken from the defendant.

6 The police interviewed the defendant. He gives his date of birth as 30 August 1986. He could not remember where he was living in 2007. He has never owned a Queensland State of Origin Jersey, and he cannot remember having worn one. He is shown photographs of the crime scene, and it “rang no bells” with him. He made no admissions.

7 DNA was recovered from the jersey, the glove and the hammer. This was analysed with the DNA recovered from the defendant. It is the conclusion reached by the analyst that is in issue in this case.

8 In the absence of the DNA evidence, the case against the defendant cannot succeed. It is noted at this stage that the defendant does fit the age range of the description given by the witness.

The First Statement by the Analyst

9 The prosecution sought to tender an expert certificate by Jennifer Betina Burger (Ms Burger), who is a biologist at DAL. In paragraph (5) she states:

Dion Le Platrier has the same profile (in the Profiler Plus System) as the DNA recovered from a stained area on one of the gloves and from an area on the collar of the jersey. This profile is expected to occur in fewer than 1 in 10 billion individuals in the general population.

Dion Le Platrier has the same profile (in the Profiler Plus System) as the partial DNA profile recovered from the handle of the sledgehammer. This profile is expected to occur in approximately 1 in 2.9 billion individuals in the general population.

10 Ms Burger was cross-examined on the voir dire in relation to this evidence on 28 January 2010. She cogently explained the process of analysing DNA samples at page 11 of the transcript:

A. Okay, well first of all I'll start off by saying that we produce a DNA profile and once we have that, this is based on nine different locations on our DNA, and so it will give us nine different types because these locations that we look at differ between people. We get different types. So once we have our nine types, that makes up a full DNA profile, and we've also got a tenth type, and this tells us whether the DNA comes from a male or female. So we've got our nine types, and the way that we calculate the statistic is to work out how frequently each one of those nine types occurs within the general population. We have a database and we've calculated from that how frequently each DNA type occurs. So we take one and, for instance, if the first one occurs in one in 150 people and the next one occurs in approximately one in 180, we can then multiply those two, and the reason we can do this is because they occur independently. It is the same, if I can explain it this way, if you have a dice, and if you toss that dice the chances that you will get a 6 is one in six. If you have a coin and you toss the coin, the chances that you will get a head is one in two. So if you do both events, the chances that you will get a 6 on the dice and a head with a coin is six times two, so the chances of those two events occurring is one in 12 of getting a head and a 6. So with our statistics we do it the same way. In this case we have nine different events and the chance of each one of those events occurring is independent. So the chance of obtaining the nine types in one profile is the first one, the frequency of the first one multiplied by the frequency of the second one, multiplied by the frequency of the third and so on. By the time we've done all nine of them, multiplied them together, we end up with a figure of fewer than one in ten billion individuals would be expected to have those nine types.

Q. In the very next paragraph down where you say approximately 2.1 in 2.9 billion, is that done on the exact same example or description you've just given in regards the one in ten billion?

A. Yes, but why it is less is because we don't have all nine. As I've described, it's a partial DNA profile. So in this case we don't have all nine. We may only have six of them. So because we've only got six it's less.

11 Mr Blair for the defendant asked Ms Berger whether the statistics would change if the defendant had a close male relative, and she answered at page 13 of the transcript;

“ It would change, yes ”

12 There was then the following exchange:

Q. You'd agree with me there's no scientific basis at all that DNA of an individual is unique?

A. That's correct.

Q. The models that the DNA use, as you explained, are only based on databases because naturally enough we haven't DNA tested the whole population yet, have we?

A. That's correct.

Q. And, in fact, you can't rule out any male sitting in this honourable court as also being a contributor to the DNA sample found at the crime scene, can you?

A. Well, it would be extremely unlikely, but as you say, I cannot rule it out.

Q. You can't rule it out, and the reason you can't rule it out is because DNA is an exclusionary process, isn't it? It only excludes people?

A. Well, I can--

Q. Let me ask that question again. For example, it excludes females. You've been able to exclude all females as the possible source of the suspect sample, haven't you?

A. That's right.

Q. And as you go through the nine points of your loci, you can exclude people who don't have the same nine points or any one mismatch; that's correct, isn’t it.

A. Yes.

13 I then asked the following question:

Q. So if the person had a male sibling and the person was from a racial minority, then that would mean that the figure of one in ten billion would be one in much, much less than ten billion?

A. Much, much less, yes.

14 Mr Blair then called the defendant on the voir dire. As I understand it, the key evidence he gave was that he had two older brothers, one of whom lives in Marrickville and the other in New Zealand. He has many other male relatives who live in Sydney, some in the inner west.

15 Ms Burger then conducted some further calculations and was again cross-examined on 8 April 2010. Two “Identifiler Conditional Probabilty Calculation” sheets were tendered. The essence of these documents is a calculation where a full sibling was taken into account. The key upper confidence figures were 3,513 and 6.252. This is explained at page 8 of the transcript:

Q. When you’ve recorded 3,513, one way of interpreting that is that if the brother of the defendant was DNA-tested, there would be a probability of 3,513 that the brother’s profile on the profile ..(not transcribable).. would be the same as the defendant’s. Isn’t that the case?

A. That’s the case, yes - the one in 3,513.

Q. Ms Burger, that means that there is a one in 3,513 chance that the brother’s DNA profile matches the crime scene, doesn’t it?

A. Yes.

16 Clearly, the same position applies to the figure of 6252. Further at page 9 of the transcript:

Q. In the annexure to your statement - there’s a three-page annexure, which I think was exhibit 1 on the voir dire. On page 2 of 3 - do you have that in front of you, Ms Burger?

A. Yes, I do.

Q. The third paragraph down starts with these words: “the profile frequency calculation does not apply to closely-related individuals”. You would agree with me that that means that the calculations in relation to the general population do not apply when they are closely related individuals.

A. That’s correct.

17 Later in the transcript there are some questions from me, where I posit the hypothesis of tossing a coin 12 times and getting heads 12 times is a figure of 1 in 4096, or 13 times is 8,192:

Q. So is this a correct statement or an incorrect statement: that the chances that it’s his brother is about the same as if I tossed a coin twelve times and each time got a head.

A. The chances are the same, yes.

18 Then Mr Blair asked the following:

Q. Madam, the chances of tossing twelve heads in a row - his Honour has just referred to - is exactly the same probability of throwing a head, followed by a tail, followed by a head, followed by a tail, followed by a head, followed by a tail et cetera, et cetera up to 12.

A. Yes.

Issue One: The admissibility of the first statement.

19 The defence submits that the first statement relating to 1 in 10 billion and one in 2.9 billion is inadmissible as it is not relevant. This submission is based on Ms Burger’s concession, that the profile frequency calculations for the general population do not apply when there are closely related individuals.

20 The prosecution contend that the evidence ought to be admitted as it forms the basis of the defence submissions relating to the Forbes case and the terms “strong” and “extremely strong” discussed below:

“The defence cannot have it both ways; either the general population statistic is in, as they with so use the classification terms a taken from Forbes and those terms may only apply to those related to the general population, or the general population statistic is out and so are the classification terms as they are not related to the statistics concerning siblings”

21 I have decided to allow the evidence in, although in a jury trial the situation may well be different where the probative/prejudicial considerations may well be greater. It seems to me that they are not relevant to prove that the statistically larger probabilities are correct, as clearly they are not. However, they do show the path from 10 billion to 3513 or 6252. This is crucial for the reasoning in dealing with the second issue.

Issue Two – Beyond Reasonable Doubt

22 The prosecution bear the burden of proving their case beyond reasonable doubt. They bear the burden of negativing any reasonable hypothesis consistent with innocence. There is no fingerprint, visual identification, CCTV, recent possession or other real evidence to link the defendant to the crime. There are no admissions by the defendant.

23 The defence submit firstly that DNA evidence alone is not sufficient for a finding of beyond reasonable doubt. Secondly the defence contend that the probability ratio of 1 in 6252 is insufficient to permit a finding of guilt beyond a reasonable doubt where that is the only evidence. The defence approximates that there would be 439 sets of brothers in Australia who have the same DNA profile as each other.

24 On the first issue the prosecution submit that DNA evidence alone is sufficient for a finding of beyond reasonable doubt. On the second issue, the prosecution say that the ratio of 1 in 6252 with respect to siblings is sufficient to permit a finding of beyond a reasonable doubt when considered with the lack of memory evident in the ERISP.

25 Given my findings below, it is not necessary to consider the first issue. Neither the defence nor the prosecution could point to any cases where DNA alone has led to the conviction of a defendant, although a careful reading of the findings in R v Rowe [2004] SASC at 427 comes very close. In R v Forbes [2009] ACTCA 10 there was DNA evidence and the defendant gave alibi evidence. The High Court did not allow leave to appeal on the conviction, as it was open to the jury to convict on the defendants evidence and other evidence such as identification. In that case, the DNA evidence was greater than one million. There were no sibling issues. If, in this case, the only evidence was the 1 in 10 billion, then it would be necessary to make a decision.

26 However it is not necessary as in my view the prosecution have not proven their case beyond a reasonable doubt. I appreciate that the courts have been hesitant to define “reasonable doubt”, and clearly it does not mean that the prosecution have to prove the case beyond any doubt. In my view, tossing a coin 12 or 13 times and getting heads (or, as rightly pointed out by Mr Blair any other predetermined pattern of heads/tails) is not beyond reasonable doubt. Obviously there is a line somewhere, but in my view it is not at 6252. Similarly, the prosecution have not negatived the hypothesis that a brother of the defendant shares the same DNA profile as the defendant and thus is the perpetrator of the crime.

27 In my view, the ERISP is not inculpatory, and contains no admissions.

28 Accordingly, the charge is dismissed.

Magistrate David Heilpern