R v Berry

[2007] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN
	No 367 of 2005
v
nathan daniel BERRY
THE QUEEN	No 366 of 2005
v
STEPHEN MATTHEW WENITONG

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JUDGES:	BUCHANAN, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2007
DATE OF JUDGMENT:	21 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 202	3rd Revision 25 October 2007 – [18], [31], [84], [110]

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CRIMINAL LAW – Admissibility of DNA evidence – Admissibility of statistical analysis in relation to mixed DNA of a number of contributors – Possible contamination of DNA evidence – The use of likelihood and random occurrence ratios in the case of mixed DNA – Conflicting expert opinions – Jury’s ability to understand complex expert evidence – Adequacy of directions – Admissibility of expert opinion as to footprints enhanced by Luminol – Whether speculation – Adequacy of directions – Evidentiary value of exculpatory statements made to investigators – Jury wrongly directed that not evidence of the truth of their contents – Misdirection immaterial – Whether R v Edwards direction required where Crown alleged offenders concealed incriminating evidence by ‘cleaning up’ after crime – Whether direction required as to whether either applicant was accessory after fact when not raised as an issue by defence.

SENTENCING – Time spent in custody prior to sentencing which does not qualify as pre-sentence detention – Time served for other offences whilst on remand – Time in custody for an offence on which offender acquitted – Youth at time of offence – Offence committed in prison setting – Aggravating factor – Parity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K E Judd with Ms K Anderson	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant  Berry	Mr M J Croucher	Clarebrough, Pica
For the Applicant  Wenitong	Mr R A R Lewis	Lethbridges

BUCHANAN JA:

1. In my opinion each application for leave to appeal against conviction and sentence should be dismissed for the reasons stated by Redlich JA.

REDLICH JA:

1. On 2 March 1998 Brian Edwards was murdered whilst a prisoner in the Cassia Unit at Barwon Prison.  He had been transferred from Port Phillip to Barwon Prison only a few hours.  At the time, both Nathan Daniel Berry and Stephen Matthew Wenitong were inmates of the same Unit.  It was the Crown case that while acting in concert, they stabbed the deceased a number of times when he was in his cell. 

1. Following a five week trial in the Melbourne Supreme Court, Berry and Wenitong were each found guilty of one count of murder.  Both have appealed against their conviction and sentence.

1. Both applicants allege that the trial judge erred in admitting into evidence analysis of the DNA found upon a sock in the prison laundry and expert evidence of likelihood ratio calculations.  The sock contained a mixed DNA sample of at least four persons.  The applicants allege further that the directions given in relation to that and other DNA evidence was inadequate in a number of respects.  Wenitong alleges that certain expert evidence of footprints, enhanced by luminol, leading from the deceased’s cell to Wenitong’s cell was inadmissible as speculation and that inadequate directions were given as to that evidence.  Both applicants allege that the judge misdirected the jury as to the evidential status of exculpatory statements that they made to investigating police.  Berry alleges that the trial judge failed to give a necessary direction as to consciousness of guilt in relation to post offence conduct of an attempt to conceal  incriminating evidence.  Finally the applicants contend that the verdicts were unsafe and unsatisfactory.

1. It is convenient to summarise the circumstantial evidence upon which each applicant’s conviction was based. 

1. Generally prison officers became aware of proposed transfers of prisoners from Port Phillip to Barwon Prison some time prior to their transfer.  The knife used in the stabbing of the deceased was stolen from the prison officers’ console at the Cassia Unit at Barwon Prison on the evening of 26 February 1998.  The deceased learned of his intended transfer to Barwon Prison from Port Phillip Prison some days before it occurred and expressed concern that he would be killed if he was transferred to Barwon Prison.  He refused protection.

1. At the time of the deceased’s transfer the applicants, who were good friends, were both prisoners at Barwon Prison on the B side of the Cassia Unit.  There were then 53 prisoners residing in the Cassia Unit, with 23 prisoners residing on side B.  The deceased arrived at Barwon Prison at 12.30 pm on 2 March 1998 and was brought to the Cassia Unit at approximately 3.30 pm that day.  By 5 pm, 11 of the prisoners in the Cassia Unit had been locked in their cells for work-related penalties.  Six of those prisoners were from the B side of the Cassia Unit.  Shortly after the deceased’s arrival the applicants were observed in the programme room playing darts.  At the time the deceased was murdered the applicants, who had both borrowed tennis racquets earlier that afternoon, had still not returned them to collect their identification tags. 

1. At 6.20 pm the deceased went to his cell in side B.  At this time the applicants were in the Cassia Unit side B.  Prisoner Smeets went to see the deceased in his cell to see if he wanted some coffee.  As he approached the deceased’s cell he observed a prisoner, Ron Skelly, a half-brother of Wenitong, standing near the deceased’s cell.  As Smeets walked towards the deceased’s cell, Skelly approached Smeets and said that he wanted to talk to him.  He asked Smeets to accompany him to his cell inside A section of the Cassia Unit.  Smeets accompanied Skelly to his cell on side A and had a very brief conversation with Skelly before he returned to his own cell.  A short time later he was informed that the deceased had been stabbed in his cell. 

1. Another prisoner, McLeod, was playing table tennis very close to the deceased’s cell when he heard a moan.  He saw two males that he could not later identify, walk from near the front door of the deceased’s cell.  They nodded at him as they passed.  McLeod then saw the deceased emerge from his cell bleeding and holding his hand to his neck.  A prisoner from the adjoining cell heard a noise like a locker falling over and some minutes later saw the deceased standing in the doorway of his cell dazed and bloodied.

1. By 6.25pm the deceased had approached the prison officers’ console and was observed to be bleeding from a number of five to six cm deep stab wounds near his heart.  He had facial injuries to the nose, mouth, left eye and bruising consistent with a fall.  He was in a semi-coma.  He had a neck abrasion consistent with a ligature having been held tightly to prevent movement.  The deceased was asked who was responsible and responded with obscenities.  When asked how many persons had attacked him the deceased said ‘one’ and squeezed a prison officer’s hand to indicate one person. 

1. Prison officers went to the deceased’s cell and found blood on the floor in the form of drops and spatter.  A Code Black was called and the Cassia Unit was sealed and prisoners were escorted to their cells.  At the time that prison officers were attending to the deceased, a shower could be heard in use on the B side.  Shortly thereafter, Berry was found in his cell in boxer shorts.  On the floor was a towel which ultimately tested positive to Hemastix.  No other prisoner on the B side of the Cassia Unit was found to have just showered, to be in a state of undress or with any blood on his clothing.  Wenitong was found in his cell upstairs.  A washing machine near his cell upstairs, could be heard to be running as the prison officers attended to the deceased.  Thereafter it was turned off.  

1. The washing machine on the upper level, one cell from Wenitong’s cell, was found to contain items which were wet and had been washed recently.  They were one pair of Dunlop Volley runners with pen markings in size 8, one pair of Adidas Galaxy runners in size 7.5, two white T-shirts and two green tracksuit pants.  No runners were found in Berry’s cell when it was subsequently searched.  Wenitong had been issued Dunlop Volley runners and the pair found in the upper level washing machine were identified by a prison officer as belonging to Wenitong because of the particular pen markings.  On the lip of a bucket adjacent to the washing machine, there was a white sock which contained an apparent bloodstain. 

1. Prison records of cell property showed that Dunlop Volley and Adidas runners were available in prison in 1998 and that runners of that type had been issued to the applicants at Barwon Prison.  On 18 February 2003 Berry’s home was searched and Adidas runners size 7.5 were located.  The following day Wenitong’s cell at Lodden Prison was searched and Nike runners size 8 were found in his property box and a pair of size 8 Dunlop Volley runners were found.  The Crown relied upon these runners seized in 2003, as establishing the size of shoe which each of the applicants wore at the time of the deceased’s murder. 

1. Within the blood on the floor of the deceased’s cell there were shoe impressions of three sets of shoes.  One impression represented the deceased’s shoes, a second, the impression of a Dunlop Volley runner and the third the impression of an Adidas runner.  The Dunlop Volley runners said to belong to Wenitong found in the upper level washing machine, had a particular wear characteristic which matched the Dunlop Volley runner impression in the deceased’s cell.  The unique wear characteristic was so individual that it was highly unlikely that another runner made that impression.  The Adidas Galaxy runners in the washing machine had a  shape, pattern size and wear characteristic similar to the runner impression in the deceased’s cell . 

1. Because of the volume of blood and the runner impressions found in the deceased’s cell, B unit area was screened for apparent bloodstaining with the use of Luminol.  Leading from the deceased’s cell were three trails which reacted to fluorescing with Luminol.  The first trail went to the console area and the footprints were identified as those of the deceased.  The second trail of 9.6 metres and containing triangular studs went from the deceased’s cell to Berry’s cell concluding alongside Berry’s bed.  The Adidas Galaxy runners in the washing machine had a similar shape, pattern size and wear to the footprints on the trail to Berry’s cell and were consistent with the second trail having been left by the Adidas runner found in the washing machine.  There were no exit marks from the cell.  The third trail was 29.5 metres and contained a zigzag pattern which went from the deceased’s cell to the door of Wenitong’s cell.  The third trail which led to the doorway of Wenitong’s cell had been left by the Dunlop Volley runner belonging to Wenitong and which was found in the washing machine.  There was a reaction to Luminol testing within Wenitong’s cell but a swab taken proved inconclusive.  The Dunlop Volley runners found in the washing machine had on their surface what was thought to be diluted bloodstains which tested positive to Hemastix.  Further testing proved inconclusive. 

1. Each applicant’s cell was searched.  Berry was the only prisoner in the unit who did not have runners in his cell.  Only sandals and soiled clothing were found in the cell.  In Wenitong’s cell were two white sport socks which were found to contain what appeared to be very small spots of blood.  One was an Adidas sock.  The DNA results from the apparent bloodstain on the Adidas sock, which was a mixed profile, showed that the major contributor was the deceased.  The applicants could not be excluded as contributors to that DNA.  In the unstained area of the sock, DNA was also found and the applicants and the deceased could not be excluded as contributors to this DNA.  Apparent blood spatter was also found on the unlabelled sock.  This tested positive to Hemastix but subsequent testing was unable to confirm that it was human blood.  The deceased and Berry could not be excluded as contributors to the DNA in this mixture.  DNA was also found in an unstained area of the sock.  The applicants and the deceased could not be excluded as contributors to that DNA.  The statistical probabilities in relation to this DNA evidence is detailed in the discussion of grounds 1 and 2.

1. The sock found in the laundry contained a bloodstain.  The deceased and the applicants could not be excluded as contributors to the DNA at that site.  DNA was also found on an unstained area of the white sock and the deceased, the applicants and one Ali could not be excluded as contributors to the DNA at that site.  The statistical probabilities in relation to this DNA are also considered in dealing with ground 1.

1. In the course of a detailed examination of the deceased’s cell, a bloodstained ligature comprising three unused white runner laces which had been plaited together was found on the floor.  Subsequent DNA testing showed that the deceased and the applicant Berry could not be excluded as a contributor to the DNA on the ligature.  An unstained area of the ligature also contained a DNA mixture and the deceased and Berry could not be excluded.  The statistical probabilities in relation to this DNA are set out in dealing with ground 2.  A piece of black plastic was also found on the floor of the deceased’s cell.

1. A footwear search conducted of all other cells in the Cassia Unit revealed that no prisoner in sides A or B of the Cassia Unit had runners or shoes with blood on them or that could have left the imprints in the deceased’s cell. 

1. On 3 March 1998 the knife that was used in the stabbing a piece of black plastic missing from the handle was found outside the Cassia Unit in a garden bed of the Diosma Unit.  DNA was found on the blade of the knife and the deceased could not be excluded as the contributor to that DNA. 

1. Each of the applicants was interviewed on the morning following the murder and denied any knowledge of it. 

1. Ground 1 of Wenitong is in these terms:

The learned trial judge erred in allowing evidence of the analysis of the DNA material (taken from a sock which was exhibit 20) described in the trial as 10(e)(ii) to be led as evidence in the trial. 

Particulars

DNA profile of a person that matched Ali Ali was found on the sock.  Ali Ali was not at the Cassia Unit at the time of the death of Mr Edwards and could not have contributed his profile to the sock on any relevant day.  Certain of Ali Ali’s alleles matched those of the applicant.  There was no logical basis for preferring the applicant as the donor of those alleles to Ali Ali.  The analysis was irrelevant because no probative weight could be attached to it.

1. Ground 2 alleged that the learned trial judge erred in her discretion in admitting the evidence comprising item 10(e)(ii).  The ground and the particulars annexed thereto were otherwise in identical terms to ground 1.  Ground 1 of Berry was in similar terms to ground 1 of Wenitong.

1. It is convenient to deal with these grounds together.  The DNA material, items 10(e), are from the white sock found on the bucket in the upstairs laundry in B side of the Cassia unit shortly after the deceased was murdered.  The DNA analysis of the blood stain matched the reference sample from the deceased.  This DNA evidence was referred to during the trial as item 10(e)(i).  DNA found in the unstained area of the white sock from the laundry was item 10(e)(ii).  These grounds of appeal are concerned only with the admissibility of item 10(e)(ii).  No objection was taken to the admissibility of any other DNA analysis.

1. In relation to the bloodstain, item 10(e)(i) the expert evidence relied upon by the Crown was to the effect that it would be at least 72 million times more likely that the DNA came from the deceased than from a person selected at random from the Victorian caucasian population.  In relation to the DNA found in the unstained portion of the sock, item 10(e)(ii), the expert evidence relied upon by the prosecution was to the effect that DNA from at least four individuals was present at that site.  It was the Crown case that the largest portion of that DNA material matched a DNA profile of a person by the name of Ali.  His DNA was not detected in any other DNA material relied upon by the prosecution.  Ali was not in custody at the time of the deceased’s murder and had not been at Barwon Prison at any material time.  He had been a prisoner at Port Phillip some two months earlier when the deceased was a prisoner there and before the deceased was transferred to Barwon Prison.  Neither the deceased  nor the first or second applicants could be excluded as contributors to this DNA material.  The Crown relied upon the evidence of an expert, Dr Roberts who by calculation of ‘Likelihood Ratios’ found that the mixture of DNA profiles from item 10(e)(ii) would be at least 180 times more likely to occur if it did contain DNA from Ali, the deceased, both applicants and one unknown person than if it contained DNA from Ali and three or more unknown individuals.  He testified that this statistical conclusion provided strong support for the proposition that Ali, the deceased, the two applicants and an unknown person were the source of the DNA in item 10(e)(ii).  He also testified that the DNA evidence was at least 95 times more likely to occur if Ali, the deceased, the applicants and an unknown person were the source of the DNA than if it was Ali and the deceased and two or more unknown individuals and that this ratio provided moderate support for the proposition that the DNA did come from Ali, the deceased, the two applicants and one unknown person.  

1. Dr Roberts had given the same evidence prior to the empanelment of the jury in the course of an extensive voir dire and submissions.  The submission then made on behalf of the applicants, and which was repeated on this appeal, was that the evidence was inadmissible or should have been excluded in the exercise of the trial judge’s discretion.  The trial judge ruled this evidence admissible.

1. The applicants do not challenge the admissibility of the analysis of the DNA evidence or the conclusions that certain persons could not be excluded.  The expertise of the crown witnesses was not in issue nor was it contended that they failed to state the grounds and assumptions upon which their conclusions, and in particular the statistical probabilities, were based.  Rather, the argument focussed upon the admissibility of the statistical calculation using the ‘likelihood ratios’ on the grounds that the DNA analysis did not enable such a calculation to be undertaken, that such a statistical method was inappropriate for a mixed DNA sample, that the jury would be unable to resolve the conflict between the prosecution and defence experts and that the probative value of the evidence was outweighed by the prejudice that the jury would be unable to appreciate the limited probative value of the ‘likelihood ratios’.   

Relative frequency of DNA expressed as a Likelihood Ratio

1. DNA evidence involves a comparison of the alleles found at various common points – loci – in the DNA chain.[1]  Where the analysis shows that the DNA is consistent with coming from the accused, experts may compute the probability of finding a match of the DNA profile found with other randomly selected members of the population.  The scientist may, on the basis of empirical statistical data, give the jury the ‘random occurrence ratio’ (referred to in the present trial as the ‘random man’) -the frequency with which the matching DNA characteristics are likely to be found in the population at large.[2]  The genetic scientist, does not testify as to the probability that the DNA found came from the accused but has recourse to population genetics to determine the likely frequency of matching alleles at the various loci and uses the multiplication rule to extrapolate the relative frequency of a particular combination of alleles in the population at large.[3]

   [1]See Andrew Ligertwood “Avoiding Bayes in DNA Cases” (2003) 77 ALJ 317, 318.

   [2]R v Doheny & Adams [1977] 1 Cr App R 369, 374-5; R v Adams (No 2) [1998] 1 Cr App R 377, 384.

   [3]Ligertwood, above n 1, 318.

1. Where the DNA has come from a single source, the application of ‘the random occurrence ratio’ and the ‘likelihood ratio’ produce very similar results.  It is only where the DNA is from mixed sources that the difference in approach becomes material.[4]  By definition, a mixed sample of DNA contains DNA from at least two contributors and often with the consequence that there cannot be a match to a single individual or an identification of the DNA profiles of the individuals who make up that mixture.  Counsel for Wenitong contended that it was not appropriate for Dr Roberts to express the random occurrence in terms of a likelihood ratio for a mixed DNA profile.  I do not agree.  

   [4]‘Mixtures in which the prosecution must propose an unknown contributor or the defence proposes more than one unknown contributor can only be evaluated correctly by means of a Likelihood Ratio.’  Expert Evidence-I.  Freckleton and H Selby Part 8 – Forensic Science Chapter 8  [80A.540]

1. The likelihood ratio is now an accepted calculation which has the capacity to assist a jury.[5]  Based upon the mainstream of forensic science, an appropriate way for DNA mixtures to be evaluated is to consider competing hypotheses – usually the prosecution and defence case – and to assess the likelihood of the DNA evidence occurring if each hypothesis were true.[6]  It is the ratio of the probability of the occurrence of the DNA evidence if the Crown hypothesis is correct (Prob. of Evidence│Hyp. of Pros) to the probability of the occurrence of the DNA evidence if the defence hypothesis is correct (Prob. of Evidence│Hyp. of Def), which is called the likelihood ratio ().  It is the means by which the jury is able to weigh the prosecution and defence hypotheses and determine which is more likely to explain the DNA evidence.[7]

   [5]Latchav R (1998) 104 A Crim R 390; R v Karger (2002) 83 SASR 135, 173 (Gray J); R v GK (2001) 53 NSWLR 317, 329-330; R v JCG (2001) 127 A Crim R 493, 509. Ligertwood, above n 1, 320.  Model directions as to the statistical consequences of DNA evidence set out in Section 9 of the extension to Judge Kelly’s Criminal Trial Manual are concerned with explaining the random occurrence calculation.  Those directions will have to be suitably adapted where experts rely upon the likelihood ratio.

   [6]Freckleton & Selby, Expert Evidence:  law, practice, procedure and advocacy, (3^rd ed, 2005) Ch 80A.560-620;  Weir BS “Interpreting DNA Mixtures” 1997 42(2) Journal of Forensic Sciences 213;  R v Karger (2002) 83 SASR 135, 140; R v JCG (2001) 127 A Crim R 493, 503-6 (Spigelman CJ).

   [7]Confidence Interval of the Likelihood Ratio Associated with Mixed Stain DNA Evidence - Beecham and Weir, University of Washington 2006, 4.

1. Mr Ali had alleles which were in common with an applicant at eight different loci.  The deceased had alleles which were in common with an applicant at nine different loci.  The defence submission proceeds on the erroneous assumption that those facts preclude the application of the likelihood ratio.  Calculation for likelihood ratios are undertaken though the proportions of the components of the mix may be unknown and the possibility of shared alleles and consequent masking by a major contributor exists.[8]  Some of the contributors to the mix will invariably be hypothesised.  Where the suspect shares alleles with other contributors, the value of the likelihood ratio will be lower and the evidence will carry less weight in support of the Crown case.  Conversely, where the suspect has alleles that are not shared with other contributors and which are present in the DNA evidence, the likelihood ratio will increase and the evidence will carry greater weight in support of the Crown hypothesis.

   [8]Expert Evidence-I . Freckleton and H Selby Part 8 – Forensic Science Chapter 8 [80A.560, 80A.620];  Guide to Interpreting single locus profiles in DNA mixture in forensic cases – Evett Willott and Stoney - Journal of Forensic Science Society 1991- V. 31 (1).

Admissibility of the DNA at site 10(e)(ii)

1. The learned trial judge rejected the submission advanced on behalf of both applicants that they had been irreparably prejudiced because the DNA material at site 10(e)(ii) had been contaminated by the presence of Ali’s DNA.  It was submitted that as a consequence there were matching alleles between Ali and the applicants at a number of loci, that Ali’s DNA masked the presence or absence of the applicants’ DNA at those sites and they were thus denied the opportunity of establishing that they could be excluded as contributors to that DNA.  Thus it was said that the evidence had no probative value.  In the alternative it was argued that the evidence should have been excluded in the exercise of the trial judge’s discretion because the probative value of the evidence was exceeded by the prejudice which would flow from the opinion expressed by the Crown’s expert, and on the basis that it would be too difficult for the jury to discriminate between the competing experts’ opinions.  In ruling the evidence admissible, the trial judge proceeded upon the basis that there may have been contamination of the DNA material as Ali was not a prisoner at Barwon Prison at the relevant time. 

1. The Crown had adduced evidence from various witnesses as to the procedure followed at the forensic science laboratory.  The respondent submitted that the evidence did not support a finding that Ali’s DNA was present as a result of contamination of the other DNA material.  It submitted for the following reasons that there was no contamination:

•Item 10(e) was found and bagged by Sergeant Evans, an experienced crime scene officer, whilst wearing gloves on 2 March 1998.  He placed it in a bag with other dry number 10 items.  The bag was then sealed and a continuity label was placed on the join.

·Item 10(e) was lodged on 6 March 1998 at the Liaison Office (also known as the Forensic Exhibit Management Unit) where it was stored in exhibit shelving.

·Item 10(e) was received by forensic biologist, Mr Hall, at the Forensic Science Centre during the period 1 June 1998 to 17 February 1999, then again on 28 February 2001 until 15 March 2001.  Between these periods, and afterwards, it was lodged with the Liaison Office and stored in the secure unit.

·Before examining the various exhibits in the item 10 bag, which include item 10(e), Mr Hall cleaned the surface of his bench and put down clean paper.  He wore gloves, a mask and gown at all times.  When he was not examining the items they were kept in the same sealed bag in a secure area. 

·When taking a sample of item 10(e) Mr Hall collected it into a plastic tube with a lid and it was accompanied by paperwork identifying the sample.  It was then stored until a tester down the hallway analysed the sample for DNA.  Separate rooms are used for extracting the DNA and amplifying the DNA profile.  All scientists wear masks, gloves and a gown.

·While the DNA results of Ali Ali were found on item 10(e)(ii), he had been a prisoner at Port Phillip Prison on 17 December 1997, before being granted bail on 22 December 1997.  So Ali Ali was not in custody on 2 March 1998, although he was arrested on 5 March 1998.  However during 1997 and 1998 prisoners were transferred at least once or twice a week from Port Phillip Prison to Barwon Prison.

·     While material was received by the Victorian Forensic Science Centre for testing in relation to Ali Ali for the period 8 September 1999 to 16 November 1999, during that time item 10(e) was held at the Forensic Exhibit Management Unit, which is a secure and self contained unit with no external access.

1. Counsel for Wenitong asserted that as a matter of public policy the DNA evidence should not have been admitted once evidence of possible contamination emerged.  No principle or authority was cited in support of this proposition.  When one has proper regard to the nature of the calculation involved in the likelihood ratio, in my view there is no foundation for the submission that the possibility of contamination robbed the evidence of any probative value.

1. The likelihood ratio may be applied without resolving the question whether Ali’s DNA was present as a consequence of contamination or whether another hypothesis, reasonably open, may explain the presence of Ali’s DNA.  The likelihood ratio is calculated on the basis that Ali’s DNA was present.  Her Honour was correct in rejecting the proposition that the presence of Ali’s DNA denied the calculation its probative effect or necessarily prevented the jury from being able to evaluate properly the DNA evidence as a piece of circumstantial evidence.  The argument that the applicants had been deprived of a chance of demonstrating that they were excluded as contributors by virtue of the contamination must also be rejected.  It involves the misconception that the likelihood ratio cannot be applied when there is a mixed DNA sample, in which the profile of other contributors could mask the presence of the suspect’s profile, because there are common alleles between other contributors and the suspect at various sites.

1. Whether or not Ali’s DNA material was present as a consequence of contamination, there was no suggestion that the analysis undertaken or the calculations were unreliable.  The question whether there was contamination of the DNA material and if so, whether it had any significance, was left properly to the jury as a jury question.[9]  It was for them to form a view about the integrity of the item and to determine what weight they would attach to such evidence.  I see no chance that the jury failed to understand that an issue for their determination was whether the DNA had been contaminated.  The jury were instructed that they would have to be satisfied beyond doubt of any piece of evidence that they considered was necessary to establish guilt. 

   [9]Sharwood v R [2006] NSWCCA 157, [31].

1. The conclusion shared by the experts that the applicants could not be excluded as contributors rested upon the fact that at each locus, alleles were present, the source of which might have been the applicants.  The defence expert, Mr McDonald, applying the random occurrence method, had concluded that if the alleles were present from all assumed contributors, then one in 25 of the population was not excluded from this DNA profile.  He further opined that if at every locus, one allele of each contributor was present, then one in five of the population was not excluded from the DNA profile. 

1. The calculation of the ratio between competing hypotheses does not rest upon proof that the suspect’s DNA was present in the mix – that is to say that particular alleles in fact came from the suspect.  The fact that at a number of loci, the applicants had alleles which matched those of the deceased did not mean that a likelihood ratio calculation could not be undertaken.  For the purpose of evaluating the Crown hypothesis, it was to be assumed that the suspect’s DNA was present.  The statistical calculations of the Crown expert as to the likelihood ratio and the defence expert’s calculation as to the random occurrence gave the DNA evidence its probative value[10] as it provided the jury with assistance as to the weight which they might choose to attach to the DNA evidence.  The experts attached quite different weight to the DNA evidence.  Counsel for the respondent submitted that the defence expert had been substantially discredited and was not expert in relation to calculations involving the ‘likelihood ratio’.  Be that as it may, it was open to the jury to use the DNA in the manner advocated by either of the experts.  I see no error in her Honour’s conclusion that the evidence had probative value and was admissible. 

   [10]R v Noll [1999] 3 VR 704, 708-9; R v JCG (2001) 127 A Crim R 493, 504.

Capacity to resolve the competing expert opinions

1. It was submitted that the sophistication of the expert debate was of such an order that it would be beyond the capacity of the jury to discern which of the competing expert opinions was properly to be preferred.  As I understood the submission for Wenitong, there was a real risk that the jury would not understand what was meant by the opinion that he could not be excluded as a possible contributor to the DNA material.  Although not articulated, it was implicit from the outline of submission that the statistical evidence would be given more weight than was fit and would displace or overwhelm the consideration of all of the circumstantial evidence.  Relying upon the majority judgment in R v Pantoja, it was submitted that the evidence ‘would have overawed the jury by the seemingly scientific garb in which it was presented’ with the very real risk that they would have thought that it had greater weight than it may have been capable of bearing.[11]  The submission, though not further developed in oral argument, appears to be largely the same submission which was advanced in R vKarger in that the statistical evidence would be viewed by a jury as establishing something equivalent to a ‘genetic fingerprint’ when in fact it does not do so.[12]  The Court of Appeal in Karger, rightly in my respectful opinion, rejected the notion that a jury would be unable to interpret the significance of evidence about a match between incriminating DNA and the accused’s DNA when the prosecution was relying upon a statistical calculation expressed as a mathematical probability. 

   [11](1996) 88 A Crim R 554, 561-2.

   [12](2002) 83 SASR 135, 139.

1. It is well accepted that it is for the jury alone to determine the reliance that it will place on the expert testimony:  Hocking v Bell;[13]  Chamberlain (No 2) v The Queen;[14]  The Queen v Hallam.[15]  It was said however that the jury would be unable to resolve the conflict between the experts as to the appropriate method of calculation.  In Karger[16] Doyle CJ referred to the judgment of King CJ in R v Duke[17] and the confidence which the courts retain in the jury’s capacity to resolve conflicts of opinion amongst expert witnesses in complex matters.[18]  In R v Juric[19] Winneke P, Charles and Chernov JJA in a joint judgment observed that DNA evidence will not become inadmissible because experts express differing opinions upon the factual or scientific bases in respect of which their opinions are expressed.[20]  After referring to the judgment of Gummow and Callinan JJ in Velevski v R[21] in which it was said that it is not the law that a conflict in respect of difficult and sophisticated expert evidence in relation to a critical matter should for that reason alone be regarded as beyond the capacity of a jury to resolve, the court observed that there was –

a factual or scientific basis provided by each of the experts for the competing opinions given, a factual basis which was accessible to the jury and upon which they could come to a rational conclusion for preferring one opinion over the other … Full explanations were given by the experts for their competing views and his Honour in our view was correct to conclude that those were matters ‘accessible’ to the jury and capable of being resolved by them.[22]

[13](1945) 71 CLR 430, 496 (Dixon J).

[14](1984) 153 CLR 521, 558 (Gibbs CJ and Mason J), 598 (Brennan J).

[15](1990) 49 A Crim R 316, 326.

[16](2002) 83 SASR 135.

[17](1979) 22 SASR 46.

[18](2002) 83 SASR 135, 143 (Doyle CJ).

[19](2002) 4 VR 411.

[20]Ibid, 426.

[21](2002) 187 ALR 233.

[22](2002) 4 VR 411, 428.

1. Subsequently in the retrial of Juric Nettle J (as he then was) was to observe that although the DNA evidence was well beyond the ordinary experience of most men and women and was complex and difficult, he did not consider that the evidence ‘would be incomprehensible to any attentive lay person once explained as they have been to me in the course of the evidence.’[23]

   [23]R v Juric [2003] VSC 382, [41].

1. The applicants relied upon cases such as R v Tran[24] and R v Lewis[25] where the DNA evidence was excluded from the jury’s consideration on the basis either that there was no proper foundation upon which the jury could assess the reliability of the expert opinions or on the basis that the prejudicial effect of the evidence outweighed its probative value.  Those cases were considered by Nettle J in Juric who viewed Lewis as an extreme case where the expert opinion could not be sourced to the facts and where the jury were left without basis to decide for themselves whether the expert opinion should be accepted.  Tran was distinguished in The Queen v Vivona[26] on the basis that the DNA evidence was excluded in the exercise of the trial judge's discretion because he concluded that the testing results and conclusions were for stated reasons unreliable.  Thus in Tran the jury had no basis upon which to determine the reliability and weight to be accorded to the DNA evidence.

   [24](1990) 50 A Crim R 233.

   [25](1987) 29 A Crim R 267.

   [26](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Tadgell and Teague JJ, 12 September 1994), 9.

1. In the present case there was a voir dire conducted over three days in which her Honour received detailed evidence from each of the experts who were able to demonstrate by reference to the facts how they each reached their conclusions and why they contended that their method of statistical analysis was to be preferred.  Her Honour concluded that it was within the capabilities of a jury to understand the issue and to resolve the dispute between the experts as to the appropriate method of statistical interpretation. 

1. The submission that her Honour erred in the exercise of her discretion in admitting the DNA evidence at site 10(e)(ii) because of the competing expert opinions, cannot be sustained.  An examination of the detailed evidence adduced from the experts during the trial and the aids which were utilised to assist the jury in understanding their evidence reinforces the view held by the trial judge that this was not a case in which the jury were unlikely to have understood the probative value of the DNA evidence and attributed to it undeserved weight.  It could not be said that this was a case in which the jury was unable to evaluate the DNA evidence or resolve the conflict between experts. 

1. Ground 2 of Berry asserts a failure of the trial judge to give the following directions in relation to the DNA evidence:

The learned trial judge erred in her directions on DNA evidence:  and in particular she erred: 

(a)in failing to give any directions on the limitations of DNA evidence, including a caution that the presence of matching samples meant only that the applicant’s DNA could be on the items in question and that DNA evidence cannot disclose when or how the DNA was deposited on the items in question;

(b)in failing to direct that, before the jury could use the DNA evidence coming from the items in question against the applicant, they would have to be satisfied beyond reasonable doubt that the applicant’s DNA was found on the items found at the prison;

(c)in failing to direct the jury that, in considering whether they could be satisfied beyond reasonable doubt that the applicant’s DNA was on the items, they must have regard to Dr Roberts’ evidence of the comparatively low likelihood ratios in support of those propositions (particularly when compared to the likelihood ratios given in relation to other possible DNA deposits);

(d)in failing to direct that, before the jury could be satisfied beyond reasonable doubt that the applicant’s DNA was on exhibit 20 (the sock), they would have to exclude the possibility that the DNA analysis was contaminated and therefore unsafe.

1. It is convenient to set out all of the DNA evidence which formed part of the Crown case.

·     Two white socks, one an Adidas sock and the other an unlabelled sock, containing bloodstains were found in Wenitong’s cell. 

·     The DNA evidence adduced by the Crown in relation to the Adidas sock was that it was 21 million times more likely that the major component of DNA in the bloodstain was from the deceased than from an unknown person from the Victorian population.  There was evidence that the bloodstain contained DNA from at least two other contributors and that the applicants could not be excluded.  The evidence was that it was at least 98 million times more likely that the three types of DNA found within the bloodstain came from the deceased and the two applicants than from three unknown people from the Victorian Caucasian population. 

·     There was DNA evidence adduced as to unstained areas of the Adidas sock from Wenitong’s cell to the effect that it was at least 98 million times more likely that the DNA type came from Wenitong than from an unknown person from the Victorian Caucasian population. 

·     The unlabelled sock found in Wenitong’s cell contained bloodstains with DNA contributed by at least two people.  The deceased and Berry could not be excluded as contributors to that DNA.  It was at least 980 times more likely that the two types of DNA came from Berry and the deceased than from two unknown individuals from the Victorian Caucasian population.  A further statistical calculation showed that it was at least 83 times more likely that the two types of DNA came from Berry and the deceased than from Berry and an unknown person from the Victorian Caucasian population.

·     The unstained area of the unlabelled sock was found to have DNA from at least three persons.  The deceased and the applicants could not be excluded as contributors.  It was at least 98 million times more likely that the three types of DNA came from the applicants and one unknown person than from three unknown persons from the Victorian Caucasian population. 

·     A ligature found in the deceased’s cell had a bloodstain on it.  DNA taken from the ligature matched that of the deceased.  It was at least 98 million times more likely that the DNA came from the deceased than from an unknown person from the Victorian Caucasian population.

·     From an unstained portion of the ligature DNA from at least two persons was found.  The deceased and Berry could not be excluded as contributors.  It was at least 98 million times more likely that the majority of the DNA came from Berry than from an unknown person from the Victorian Caucasian population. 

1. Save for the bloodstain on the unlabelled sock in Wenitong’s cell, the expert evidence called by the defence did not dispute the Crown evidence as to those persons who could not be excluded as contributors to the DNA in each item.  As I have already said, the dispute focused upon the statistical calculations undertaken by Dr Roberts, his methodology and conclusions in relation to each item of DNA evidence. 

Adequacy of the charge

1. Having regard to the manner in which the evidence was given and the content of the charge, her Honour was not required to give any of the further directions asserted under ground 2.  

1. First, the learned trial judge gave the jury a standard direction in relation to the manner in which the jury should approach expert evidence and how they might permissibly resolve differences of opinion between the experts.  They were told that they could have regard to the surrounding circumstances which they found to be fact in determining the weight to be attached to such opinions.  No complaint is made about such directions nor is there any challenge to her Honour’s detailed directions concerning the use of circumstantial evidence or the drawing of inferences.  The jury were instructed that an inference should not be drawn unless the jury were satisfied that it was the only reasonable inference that was open.  Her Honour identified the pieces of DNA evidence and other circumstantial evidence upon which the Crown relied to establish, by inferential reasoning, that the applicants had murdered the deceased.  Her Honour explained to the jury that the case was neither one in which the Crown relied upon a chain of reasoning nor was it dependent upon proof of any particular piece of evidence but was one where the Crown relied upon the cumulative effect of the circumstantial facts as establishing that no innocent hypothesis was open.  The directions given to the jury emphasised that the facts upon which any inference was to be based must be proven beyond reasonable doubt and that the jury could not convict unless they were satisfied that the only reasonable inference to draw from the facts was one of guilt. 

1. Secondly, during the trial the effect of the DNA evidence was clearly explained.  It was done painstakingly during evidence and repeated in the summary of the evidence.  The jury were repeatedly told that where the DNA is mixed, the expert calculating the ‘likelihood ratio’ does not opine as to the source of particular alleles at a loci – they being from one or more of the hypothesised contributors.  The expert evidence and its summary in the charge emphasised that the calculation of the likelihood ratio enables the jury to assess what weight should be given to the competing explanations in relation to the DNA profiles.  As I have said, the Crown case, as reflected in the testimony of the Crown’s expert was in substance that it was only by comparing the probabilities of the evidentiary profile against the alternative explanations that the weight of the evidence could be assessed.

1. The DNA findings for item 10(e)(ii) were presented to the jury in a power point form and identified the alleles found at each locus on the DNA strand which had been analysed.  Considerable attention was directed to the obvious fact that at each locus of the mixed DNA there were alleles common to Ali, both the applicants and the deceased.  The evidence that was led at the trial, both oral and visual, made the limited nature of the conclusions that could be drawn from that DNA evidence very clear.  It was stated frequently during the course of evidence and again in the judge’s charge that the DNA evidence could not have established whether the DNA belonged to a particular person but could establish whether the person was excluded as a possible contributor.  The jury could not have failed to appreciate that a statistical evaluation was undertaken only when the deceased or an applicant could not be excluded as a contributor to the DNA material.  The basis upon which such conclusions were reached was fully and clearly explained during the course of the evidence. 

1. The trial judge gave the jury a detailed summary of the DNA evidence and reminded the jury of the terms in which the evidence had been given by each expert witness.  Her Honour identified each DNA item where the deceased or an applicant could not be excluded as a possible contributor to the DNA material found at that site.  The jury were reminded of the evidence as to the alleles present at each locus and the experts’ reasoning as to the number of contributors, whether they were major or minor contributors and why there was said to be a match of the DNA profiles.  As to the statistical conclusions to be drawn from the analysis of each piece of DNA, her Honour explicitly reminded the jury of the method of statistical analysis which had been employed by each expert, the nature of the conclusion that had been reached by that witness and the weight which the witness considered could be ascribed to that conclusion.  Both during evidence and in the charge, the limited significance of the statistical conclusions was repeatedly emphasised.  The jury could not have failed to understand that the likelihood ratio involved a statistical calculation of the likelihood of the Crown theory being correct. 

1. The difference in statistical calculation between the Crown and the defence experts was the subject of extensive evidence during the trial.  It was summarised at length by her Honour.  The explanations given by each expert witness for the methodology which they employed were accurately summarised by her Honour.  There was no risk, in my view, that the jury were unable to understand the difference between the use of the ‘likelihood ratio’ or the ‘random man’ method or the arguments advanced for or against each method.  Importantly, the detailed explanations given by the experts and accurately summarised by her Honour, fully equipped the jury to resolve the issues of difference between them.

1. No exception was taken to any aspect of her Honour’s charge with respect to the DNA evidence.  Counsel for Berry expressly acknowledged toward the conclusion of the charge that there was no exception in relation to these matters.  Her Honour's detailed summary of the DNA evidence and the opinions of the experts as to the conclusions that could be drawn from such evidence were sufficient to draw the jury's attention to the permissible manner in which the evidence could be used.  In summarising the evidence, her Honour reminded the jury that the experts testified only as to the likelihood or chance of the DNA coming from a particular source and that the opinions expressed by the experts did not amount to evidence that the DNA came from any particular person.

1. As to ground 2(c), the level of detail in which the DNA evidence was explained to the jury made it plain that such evidence could not conclusively establish the source of the DNA.  The jury were reminded of the different likelihood ratios which had been calculated by the Crown experts in relation to the different DNA evidence.  The jury were reminded by all parties and the trial judge of the comparatively low likelihood ratios in support of the DNA material at 10(e)(ii) and the likelihood ratios which were in the many millions in relation to other pieces of DNA evidence.  The jury were reminded that it was the low likelihood ratio that led to the opinion that it could provide only moderate support for the Crown hypothesis.  There is no force in the submission that the jury would have been unlikely to appreciate the true significance of the difference in magnitude of the various likelihood ratios which were calculated for different items of DNA evidence.  The jury were reminded, and in closing addresses in emphatic language, that the likelihood ratios for the DNA at 10(e)(ii) were not convincing likelihood ratios when compared with the likelihood ratios for other DNA evidence in the trial which were in the many millions.  For example, the likelihood ratio for the competing hypothesis to explain the DNA on item 10(e)(i) was 72 million to 1 whereas the likelihood ratio for the Crown hypothesis in relation to item 10(e)(ii) was either 180 to 1 or 95 to 1.  These differences in the magnitude of the mathematical likelihood were heavily relied upon by defence counsel in their closing address and would have been perfectly apparent to the jury.  The jury were reminded that the reduction in the mathematical likelihood was of such an order that it led the Crown expert to say of the lowest probability that it was evidence which only moderately supported the Crown hypothesis.

1. It was not contended that any witness or counsel or the trial judge had misstated the effect of the statistical evidence by treating the relevant ratio as expressing the probability that the incriminating DNA was that of an applicant.  It was not suggested that anyone had advanced what is sometimes known as the ‘prosecutor's fallacy’ that the likelihood ratio or match probability expressed the probability that the incriminating DNA was that of an applicant.[27]  No exception was taken to the manner in which the learned trial judge charged the jury with respect to the DNA evidence.  There was no error or inherent risk of the jury lapsing into a form of reasoning that necessitated a particular warning or the directions contended for.[28]

   [27]R v Doheny & Adams [1977] 1 Cr App R 369, 372-3; R v GK (2001) 53 NSWLR 317, 328-9 (Mason P); R v Karger (2002) 83 SASR 135, 139-40.

   [28]See R vKarger (2002) 83 SASR 135, 139-140 (Doyle CJ).

1. Those parts of ground 2 which claim that the charge was deficient because of a failure to instruct the jury that they should be satisfied beyond reasonable doubt that it was the applicant's DNA that was present must also be rejected.  Those authorities which refer to proof beyond reasonable doubt about aspects of the DNA evidence must, as Callaway JA observed in R v Noll,[29] be read subject to Shepherd (No. 5)[30] and Kotzmann.[31]  Where DNA evidence is part of the circumstantial evidence consisting of ‘strands in a cable rather than links in a chain’[32] it will not be appropriate to instruct the jury that such a fact must be found beyond reasonable doubt before the ultimate inference can be drawn.[33]  Whilst sequential reasoning or ‘indispensable links in a chain’ will usually attract a warning that satisfaction according to the criminal standard is required, it is unnecessary where the case rests upon an accumulation of detail and where it cannot be said that any particular fact is critical to a conclusion of guilt.  Those cases in which it has been said that the DNA evidence should be proved beyond reasonable doubt were discussed by Nettle J in Juric in these terms:

In most of these cases it has been assumed or it has been clear that the fact sought to be established by the use of DNA evidence in question was an indispensable link in the chain of logic leading to conviction, in the strict sense essayed in Shepherd v The Queen.  If DNA evidence is the only evidence of such a fact and perhaps also where any other evidence of the fact is 'weak' in the sense in which that word was used by Hunt CJ at CL in Pantoja, it is to be expected that the jury will be instructed that they must be satisfied beyond reasonable doubt of the reliability of DNA evidence before they could be satisfied of the fact sought to be proved.  But as Hunt CJ at CL pointed out, it is otherwise where there is other evidence of the fact sought to be proved and it is open to the jury on the basis of the totality of the evidence to be satisfied beyond reasonable doubt, even if none of the individual pieces of evidence relied upon has that effect.[34]

His Honour recognised that there may be crucial pieces of evidence, that though not essential links in the chain of logic, should be proved beyond reasonable doubt.  But as a matter of law unless -

there is no evidence apart from the DNA evidence or, perhaps, where the Crown case apart from the DNA evidence is “weak”, it is not necessary that the reliability of DNA evidence be established beyond reasonable doubt.  In this sort of case the DNA evidence may be regarded as one among a number of facts, none of which is necessarily established beyond reasonable doubt but on the basis of the totality of which a jury may be satisfied beyond reasonable doubt.  The point is explained by Callaway JA in R v Noll.[35]

[29](1999) 3 VR 704, 711.

[30](1990) 170 CLR 573.

[31][1999] 2 VR 123. See the recent discussion in R v Hillier (2007) 81 ALJR 886, 896-7 [46]-[49] (Gummow, Hayne and Crennan JJ); Muscat v Douglas (2006) 32 WAR 49, 52-3.

[32]John Henry Wigmore, Evidence in Trials at Common Law, Vol 9 (Chadbourne Rev. 1981) [2497], 413-4.

[33]R v Kotzmann (1999) 2 VR 123, 128 (Callaway JA); R v Ciantar [2006] 167 A Crim R 504, 519; R v Lam & Ors (Ruling No 18) [2005] VSC 292, [21].

[34][2003] VSC 382, [62].

[35]Ibid, [64].

1. As to the balance of ground 2(a), it was not necessary that the trial judge direct the jury that the DNA evidence did not disclose when or how the DNA was deposited on the items in question.  The jury could not have failed to understand from the detailed evidence given during the trial, including the issue of contamination which arose in relation to the presence of DNA of Ali that the DNA evidence does not reveal how or when the DNA was deposited on a particular item.  Her Honour's detailed summary of the DNA evidence constituted an effective reminder of that limitation of the DNA evidence.  Moreover, it is fanciful to suggest that the jury did not appreciate that a crucial question for them to determine was how the applicants’ DNA came to be on particular items - as for example how Berry’s DNA came to be on the ligature found in the deceased’s cell.  But the trial judge has no obligation to explain how pieces of circumstantial evidence may be used unless there is a real risk that the jury may utilise it in an illogical or impermissible fashion.  It is quite unrealistic to suggest that the jury may not have understood that it was necessary for them to be satisfied that the DNA came to be present in incriminating circumstances, before it could be used in support of the Crown case.  

1. There is no requirement of law or practice that any of the directions referred to in ground 2 should be given.  This area of expert evidence has not been identified as one which calls for some specific direction of law.  That said, the overriding duty of the trial judge to give such directions as are necessary to avoid any perceptible risk of a miscarriage of justice remains.  In the case of DNA evidence, the content of the charge must adequately address the danger that the jury not attribute to the DNA evidence a weight that is unjustified because of the complexity of the evidence and the form in which the scientific opinion is expressed.  This will ordinarily be achieved by a careful summary of the expert evidence which includes the limited nature of the conclusions reached.

1. Whilst the risks associated with the use of such evidence should be addressed in the course of the trial, it has not been thought that such dangers arising from expert testimony will ordinarily constitute an unfair prejudice requiring the exclusion of the evidence[36] nor has the absence of a direction concerning the caution with which the jury should treat the statistical calculations been regarded as necessarily constituting an error of law or a miscarriage of justice.[37]  The manner in which a trial judge should guard against such risks will depend upon the circumstances of each trial.  While it would have been preferable had the jury also been given a direction as to the use that could be made of the DNA analysis and the particular statistical probability calculations, the evidence had been given very clearly.  It was then carefully summarised by the trial judge and placed in its proper context so that the jury were reminded of its limitations.  No particular warning was therefore necessary.[38]

   [36]See the discussion in R v GK (2001) 53 NSWLR 317, [30], [56]-[58] (Mason P).

   [37]R v JCG (2001) 127 A Crim R 493, 505 (Spigelman CJ).

   [38]R v GK (2001) 53 NSWLR 317, 324-5 (Mason P); R v Lisoff [1999] NSWCCA 364, [49]; R v JCG (2001) 127 A Crim R 493, 509; R v Karger (2002) 83 SASR 135, 144-5.

1. Ground 2 in my opinion fails.

1. Grounds 3 and 4 of Wenitong may be considered together.  They are in these terms:

3.The learned trial judge erred in directing the jury that the evidence of Nigel Hall as to the possible route of the person whose footsteps were enhanced by Luminol (“the third trail”) was speculation and that she would have ruled it as inadmissible in the trial.

4.The learned trial judge erred in not directing the jury that the evidence of Nigel Hall as to the possible route of the person whose footsteps were enhanced by Luminol (“the third trail”) was admissible to rebut his evidence that the footsteps led into the cell occupied by the applicant with no exit.

1. It was the Crown case that there were three footstep trails containing blood which could be identified leaving the deceased’s cell.  One trail was that of the deceased which led from his cell to the console where the deceased collapsed and eventually died.  This was not in dispute.  The second trail was that of Berry which led from the deceased’s cell into Berry’s cell stopping adjacent to Berry’s bunk.  The third trail led from the deceased’s cell to the doorway of Wenitong’s cell.  The existence of these two trails was not disputed.  The forensic experts called by the Crown gave evidence that the trail of footsteps illuminated by Luminol, was very weak by the time it reached cell 51.  They said that it led ‘into cell 51’ – Wenitong’s cell.  Neither gave any evidence of the continuation of that trail inside his cell.

1. The first witness, Sergeant Evans, a crime scene examiner who was an expert in shoe impressions, testified that the Dunlop Volley impressions and the Adidas style impression, which led from inside the deceased’s cell, continued side by side to the stairs where they separated.  The Adidas trail led into Berry’s cell on the ground floor, the Dunlop Volley impression continued upstairs and stopped at cell 51 Wenitong’s cell, ‘with no apparent exit’.[39]  He further testified without objection that the trail went into but not out of cell 51.  In cross examination he was asked about the double footprints close to Wenitong’s cell.  In substance he said that he suspected that it was a result of the person standing in one spot for a moment.[40]  He volunteered that his explanation was ‘speculation’.[41]  Curiously, Sergeant Evans was not cross-examined as to his evidence that the trail of footsteps led ‘into cell 51’ nor was the hypothesis put to him later to be raised by the defence with a second witness, that the double shoe impressions may have been consistent with the person turning around at the cell door.

   [39]Transcript of proceedings, R v Berry and Wenitong (Supreme Court of Victoria, King J, 10 August 2005).

   [40]No questions were asked as to whether both heel to toe impressions, where there was a double print, continued to point towards cell 51 but it appears likely that the opinion could only have been proffered if they did.

   [41]Transcript of proceedings, R v Berry and Wenitong (Supreme Court of Victoria, King J, 11 August 2005).

1. Mr Hall, the second witness, was a forensic scientist and manager of the Biological Examination Branch of the Victorian Forensic Science Centre.  He sprayed luminol on areas of the carpet where there were runner impressions, which Sergeant Evans, whom he described as an expert in shoe impressions, was to then interpret.[42]  In cross examination, he confirmed that the Luminol testing did not indicate that there was blood inside cell 51.  He said that the foot marks illuminated by Luminol outside cell 51 could be explained by a large variety of movements.  He could not rule out the possibility that the person turned around at the doorway and walked away.  Defence counsel objected to the prosecutor re-examining Mr Hall about other possible explanations for the runner impressions at various points on the trail.  The objection was argued in the jury’s presence.  Her Honour expressed the view that the line of questioning which had been pursued by defence counsel[43] and which the prosecutor wished to also pursue required the witness to speculate.  The trial judge recognised that Mr Hall did not view himself as an expert in shoe impressions.[44]  She would not permit the prosecutor to further pursue this line of questioning. 

   [42]Transcript of proceedings, R v Berry and Wenitong (Supreme Court of Victoria, King J, 11 August 2005;  15 August 2005).

   [43]In the course of cross examination, defence counsel described the witness’s evidence as to where the trail might have gone as speculation.

   [44]Transcript of proceedings, R v Berry and Wenitong (Supreme Court of Victoria, King J, 15 August 2005).

1. In her charge to the jury the trial judge reminded the jury of the evidence of Mr Hall to which I have referred, and in particular the possibility that the person who left the runner prints may have turned around.  Her Honour, prefacing her remarks as ‘comment’, told the jury that she had prevented the prosecutor from re-examining because she considered the witness’s evidence about possible explanations for the footprints to be speculation by the witness.

1. In the absence of the jury, counsel for Wenitong took issue with Her Honour’s characterisation of Mr Hall’s evidence as speculation.  In response, her Honour, in my view rightly, pointed out that the witness was not an expert in shoe prints and that the defence had never asked him whether he could ascertain that the direction of any of the double footprints near the cell showed the person was walking away from the cell.  Defence counsel appeared to accept these points and asked that the judge balance her comment by emphasising that the witness’s evidence that the trail went up to and into the cell was equally speculation.  This her Honour agreed to do and directed the jury in these terms: 

There was a concern raised by counsel and I think it’s a valid one, that when I made the comment about the trails and what could be asked of witnesses from those footsteps, but it may not have been totally balanced, what I said.  What I indicated was that you couldn’t, in relation to that, have a witness speculate about what people may or may not have done.  They can talk about what they saw and it’s for you to draw your conclusions.  One of the things that I think Sergeant Evans, but particularly Mr Hall, talked about the footsteps, follow a trail to the door of cell 51 and going in.  There is no evidence of any footsteps inside cell 51, so a comment such as that is equally as speculative.  They can only talk about what foot shoe impressions they saw. 

1. Her Honour subsequently summarised the defence submissions in some detail.  In particular her Honour reminded the jury of the defence argument on this issue.  The jury were reminded that the trail did not go into the cell.  The jury were reminded of the defence submission that the Crown was unable to exclude as a hypothesis that the person had gone to the cell door, turned around and walked away. 

1. As to ground 3, an expert will not ordinarily be permitted to speculate as to inferences when there is no evidence that could support such an inference.  Where there is such evidence, the expert may testify that such circumstances are consistent with such an explanation.  Thus an expert may be invited to consider whether a hypothesis is consistent with the known facts, so long as the hypothesis is sought to be drawn from facts which may be established by the evidence and the assessment of such facts is within the witness’s expertise.[45]  The trial judge was correct in concluding that the evidence of the witness was no more than speculation.  First, as the witness and her Honour recognised, he did not have the expertise to draw any inferences from such facts as the evidence established.  Secondly there was no evidence which permitted the introduction of an expert opinion as to these possibilities.  The ground has no merit. 

   [45]Straker v R (1977) 15 ALR 103, 108 (Barwick CJ), 109 (Gibbs J), 110 (Stephen J), 114 (Jacobs J). Note that the judgments suggest that where the inference was adverse to the accused, the expert should only be permitted to express such an opinion where it is a probable inference from the known facts.

1. The oral argument in support of ground 4 was that the jury would not have appreciated that the experts were unable to say that the footprints went ‘into’ Wenitong’s cell.  Mr Hall’s evidence that the person may have turned around would have made that point plain.  The position ultimately adopted by counsel for Wenitong when exception was taken to her Honour’s initial direction makes this an impossible ground to maintain.  He acknowledged that the jury would have been alert to these issues because of the addresses of all parties.  The trial judge gave the jury the direction he finally sought.  All of the evidence which bore upon this issue, including Mr Hall’s evidence, and the arguments which the defence relied upon, were repeated during the course of her Honour’s substantial summation of the evidence and in her careful repetition of defence argument.  The jury were told that it was for them to determine what they made of the runner impressions.  There is no chance that the jury failed to appreciate that the evidence initially given that the trail lead ‘into’ the cell was speculation as was the evidence that the double foot prints were possible because the person turned around.  The issue was properly placed before the jury for its consideration.  These grounds are not made out.

1. Grounds 5, 6 and 7 of Wenitong and ground 3 of Berry may be considered together:

Berry:

Ground 5:     The learned trial judge erred in ruling that the statements made to the investigating police by the applicant did not contain any admissions.

Ground 6:     The learned trial judge erred in directing the jury that the statements made to the investigating police by the applicant were not evidence of the truth of their contents.

Ground 7:     The learned trial judge erred in not directing the jury that the statements made to the investigating police by the applicant were to be looked at as a whole and that the jury should give them such weight as they saw fit.

Wenitong:

Ground 3(a) is in similar form to ground 6 of Berry.   

Ground 3(b): The learned trial judge erred in her directions on the use to be made of the record of interview of the applicant and his co-accused and in particular she erred in failing to direct that the jury could not convict the applicant unless inter alia, they rejected beyond reasonable doubt his denial of involvement.

1. The following portion of Wenitong’s interview with investigating police was placed before the jury:

Q.     Do you know who the murdered prisoner is?

A.      No.

Q.      Do you know his name?

A.      No.

Q.      Do you know what happened?

A.      No.

Q.      Do you know what happened to cause the lockdown?

A.      I got told by the screws.

Q.      What happened?

A.The screws got us walking into the conference room.  I saw someone lying on the floor near the console.  There was blood on the console and on him.

Q.Where were you prior to the lockdown?

A.In me cell.

Q.What time was that?

A.Just before 7 pm.

Q.Had you seen the deceased before?

A.No.

Q.How long have you been in this unit?

A.Ten months.

Q.Where were you prior to that?

A.Port Phillip Prison.

Q.Do you know what cell the deceased was in?

A.No.

Q.Do you know the other prisoners in this unit?

A.I know most of the other prisoners.

Q.Did the deceased prisoner look familiar?

A.No he didn’t look familiar.

Q.Do you know where cell 37 is?

A.No.

Q.It’s on the ground floor on the B side of the unit.

A.No.  Don’t know it.

Q.Have you ever been into cell 37?

A.I can’t say I haven’t been in there.

Q.Have you been in there today?

A.No.

Q.Have you been into any cell today that had blood in it?

A.No.

1. Counsel for Wenitong submitted at trial and on appeal that there were a number of admissions contained in these answers to the investigators.  Her Honour was of the view that they did not constitute admissions.  Whether Wenitong’s answers that he had been in the vicinity of the crime scene shortly after the deceased was murdered and that he had been in his own cell shortly prior to the lockdown could be viewed as admissions need not be determined.  

1. Berry in that part of his interview with investigators which was placed before the jury had also said that he knew nothing about the murder of the deceased.  At the trial counsel for Berry conceded that there were no admissions contained in his client’s interview.  For reasons that will become apparent, nothing in my view turns upon whether any answers of either applicant constituted admissions.

1. Following submissions, the trial judge indicated to counsel prior to their closing address that reference could be made to the applicants’ denials in their respective police interviews, of any involvement in the murder of the deceased on the limited basis that it revealed their ‘first opportunity response’ to the allegations but that counsel would not be permitted to rely upon such denials as evidence of the truth of their content.  Accordingly, counsel for Wenitong in his closing, relied upon Wenitong’s answers on this limited basis.  It does not appear that counsel for Berry relied upon his client’s answers at all in closing submissions.

1. Her Honour directed the jury in the following manner:

Whilst I am on that topic, just let me say this about the evidence given by Mr Buchorn in relation to his conversation with Mr Wenitong the next morning.  That evidence is relevant to your deliberations as indicating Mr Wenitong’s first opportunity response to the allegations.  Although there were no specific allegations put to him, but rather general questioning about his knowledge of the death of Mr Edwards and whether he had been in that cell or any other that contained blood, the statements made by him to the police officers are not to be used as evidence of the truth of their contents.  It goes only to his first reaction on being asked about this. 

I did not intend to go any further than that originally, but Mr Lewis has indicated that there are distinctions, so I think I probably do have to say a little more.  He indicated that admissions are something that you could use in relation to the truth of them, and that would be correct.  There are no admissions here.  An admission is an admission against interest, that is, something that the accused person says to a police officer as an indicator of his guilt of the crime.  The reason that that is used as the truth of the contents is because people are unlikely to make confessional or admissions against interest unless they are true or, as in respect of exculpatory statements, you can’t be satisfied necessarily of the truth of those for the very obvious reasons.  People may say exculpatory things.  They may be true, they may not.  But when someone makes an admission against their own interest, the law regards that as something the jury can rely upon as to the truth.  There are no admissions here, but because Mr Lewis went into that I felt it necessary to explain why there is a difference and a distinction between them.

1. Later in the charge her Honour referred to the closing submission of defence counsel in these terms:

He then went on to the rules about statements and I have already explained what the rules are and the basis for it, so I will not cover that again.  He said but what you should do is look at this as a piece of behaviour.  He is doing exactly what an innocent man would do.  You cannot take it into account as the truth of its contents, but you should take it into account as a piece of behaviour.

1. Counsel for Wenitong took exception to her Honour’s direction that the applicant’s answers could not be used as evidence of the truth of their content.  Her Honour was in my view in error in so directing the jury as it incorrectly conveyed to the jury that as a matter of law the answers were of limited evidentiary value and could not be used as evidence of the truth of their contents. 

1. A statement of the accused placed in evidence by the Crown becomes evidence for the accused as well as against him.  Newton J in Sharp v Hotel International Ltd[46] examined a long line of authority which supported this basic premise.  His Honour concluded that it was for the tribunal of fact to determine whether any such exculpatory part of the accused’s statement should be believed and that the tribunal of fact should consider whether it is probable or improbable in itself and whether it is consistent or inconsistent with other circumstances of the case.  Subsequently Gibbs J in Lopes v Taylor[47] expressed the view which has come to be accepted in Australia, citing Sharp’s case and other authority for the proposition that –

where one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, become evidence of the truth of what was stated, although the Court is not bound to accept all parts of the statement as true but may give different weight to different parts of the statement.  (Emphasis added.)

This question was explored in detail by the Queensland Court of Appeal in R v Cox.[48] The judgment of Thomas J in Cox, recognised the wide divergence at that time between English and Australian authorities as to the use to which self-serving statements by an accused may be put and the way in which a jury should be told that they may act upon them.[49]  It was then well settled in Australia that the self-serving parts of a statement, once admitted, become evidence of the truth of what was stated therein.[50]  The view that the self-serving part of a mixed statement may be used as evidence of the truth is consistent with the wider principle that evidence such as hearsay evidence which is received without limitation or objection becomes evidence in the case.[51]  The High Court in Allied Interstate Qld Pty Ltd v Barnes[52] had recognised that the self-serving part of a mixed statement may be used as evidence of the truth. 

[46][1969] VR 103, 109-110.

[47](1970) 44 ALJR 412, 421-2.

[48][1986] 2 Qd R 55.

[49]Ibid, 64. The decision of the English Court of Appeal in R v Sharp had not yet been published. 

[50]Ibid, 63.

[51]Walker v Walker (1937) 57 CLR 630; R v Radford (1993) 66 A Crim R 210, 232.

[52](1968) 118 CLR 581, 585, 593-4, 598.

1. In England, at least until the case of R v McGregor,[53] the view prevailed that the evidence as a whole should be left to the jury to say whether the facts asserted by the prisoner in his favour were true.[54]  Thereafter English authority in Storey v Anwar,[55] and again in R v Donaldson,[56] departed from the Australian position.  These cases permitted the admission of the exculpatory statement on the limited basis that it showed the reaction of the accused to the allegations but it was not evidence of the truth. 

   [53][1968] 1 QB 371.

   [54]See ibid, 378 (Lord Parker CJ).

   [55](1968) 52 Cr App R 334.

   [56](1977) 64 Cr App R 59.

1. The directions given by the trial judge in the present case followed Storey.  The conflict in authorities in the United Kingdom was put to rest with the decision in R v Duncan,[57] Lord Lane CJ stating that the jury must be told that both the incriminating and exculpatory parts of a mixed statement were evidence of the facts stated and should be considered by the jury in deciding where the truth lies.[58]  Duncan recognised that a direction to the jury that they may use the statement in this limited manner, accompanied by the qualification that the evidence was something less than evidence of the facts therein asserted would be difficult for a jury to comprehend.  Subsequently in R v Sharp[59] the House of Lords emphatically rejected the notion that the exculpatory parts of a mixed statement are not evidence of the truth of the facts asserted.[60]  This was reaffirmed by the House of Lords in R v Aziz[61] where Lord Steyn also stated that the judge is entitled to comment adversely on the quality of the exculpatory parts of a mixed statement which have not been tested by cross-examination.[62]

   [57](1981) 73 Cr App R 359.

   [58](1981) 73 Cr App R 359, 365.

   [59][1988] 1 WLR 7.

   [60]Ibid, 15 (Lord Havers).

   [61][1996] 1 AC 41.

   [62]Ibid, 50.

1. The position in Australia was re-affirmed again in Spence v Demasi[63] Cox J referring to a passage from Lord Lane’s judgment in Duncan that it is unhelpful ‘to try to explain to the jury that the exculpatory parts of a statement are something less than evidence of the facts they state.’[64]  Cox J stated that where the Crown tenders the whole of the accused’s statement, it goes before the jury for them to decide what parts, if any, they will act upon in reaching their verdict, it being evidence for all purposes, whatever the weight of its individual parts might be.[65]  The defendant is not confined to passages of his statement that qualify or explain admissions upon which the Crown relies.  Cox J reviewed a number of civil cases concluding that the preponderance of authority also supported a longstanding practice of conceding the evidential value to self-serving parts of a mixed out of court statement, leaving it to the tribunal of fact to decide what weight they should be given.  In R v Su,[66] this court dealt with the evidential status of the self-serving parts of an accused’s non-incriminating statements in accordance with what had been said in Sharp and Spence.

   [63](1988) 48 SASR 536, 541; Duncan (1981) 73 Cr App R 359, 365.

   [64](1988) 48 SASR 536, 541.

   [65]Ibid, 541.

   [66][1997] 1 VR 1, 64-5. Within the passage cited from R v Donaldson (1977) 64 Cr App R 59, 65, is the erroneous statement that ‘it is not evidence of the facts stated.’

1. The Crown did not rely upon post-offence conduct by either applicant as evidencing a consciousness of guilt.  The inferred acts of cleaning up bloodstains or washing blood stained clothing was relied upon by the prosecution for the explicit and sole purpose of explaining the absence of clothing, footwear or blood in the applicants’ cells which may have incriminated them.  Cases such as R v Chang[86] and R v Nguyen[87] upon which the applicants relied, were cases in which the Crown relied upon specific post-offence conduct which was not in dispute.  In each case the probative value of the evidence was directed to establishing the accused’s state of mind at the time of the actus reus.  In each case there was such a danger that the jury may have used the evidence as indicating a consciousness of guilt because of its potential cogency in that regard; thus an Edwards direction was necessary.  Those cases are far removed from the present one.

   [86](2003) 7 VR 236.

   [87](2001) 118 A Crim R 479.

1. The probative force of post-offence conduct will depend upon both its nature and the use which is sought to be made of it.[88]  If the prosecution contends that the accused engaged in such conduct – whether a lie or other post-offence conduct – because the truth would implicate him in the offence[89] and the trial judge is satisfied that such an inference is properly open, an Edwards’ direction is required.

   [88]Ibid, [18], [20] (Winneke P); R v Cardamone [2007] VSCA 77, [28], and [32] (Warren CJ).

   [89]Zoneff v R (2000) 200 CLR 234 (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

1. In cases which involve a lie told by the accused, the issue will generally be confined to the question of whether the Crown relies upon it to demonstrate a consciousness of guilt or as only going to the accused’s credibility.  Post-offence conduct is potentially of a different character as the Crown may rely upon it, not only to support a consciousness of guilt, but as proof of an element of the offence.  It may do so by linking the accused to the commission of the offence or by permitting an inference to be drawn as to the accused’s state of mind.

1. Where the post-offence conduct is not relied upon as an implicit admission of guilt but is relied upon for some lesser use of the evidence, the absence of a warning may not be of significance.[90]  But the use which a jury may make of the evidence is not to be conclusively determined by reference to the Crown’s asserted purpose.  Where the Crown disclaims reliance upon the evidence for such a purpose it remains necessary for the trial judge to determine whether, notwithstanding that disclaimer, there is a real danger that the jury may apply such a process of reasoning in relation to such conduct.[91]  The cases of Chang and Nguyen are examples of where the trial judge ought to have so concluded.  In such cases an Edwards’ direction is required.  In R v Camilleri the Crown’s reliance upon the accuseds’ concealment of their involvement in the crime for a purpose other than to demonstrate a realisation of guilt, did not require an Edwards’ direction.[92]

   [90]Chang, [5] (Ormiston JA).

   [91]Dhanhoa v The Queen (2003) 217 CLR 1, 12 (Gleeson CJ and Hayne J).

   [92](2001) 119 A Crim R 106, 120-1 (Phillips CJ and Brooking JA).

1. Thus the purpose for which the evidence is relied upon, will be central to though not conclusive, as to whether an Edwards’ direction is required.[93]  The acts of discarding or washing clothing or other apparel which contained blood stains and which may have been linked to the commission of the crime were relied upon by the Crown for the purpose of establishing the identity of those responsible for the crime.  As to the clothes in the washing machine, the issue was the identity of the persons whose clothes had been placed in the washing machine, not what inference was to be drawn as to the state of mind of those who did so.[94]  As to the more general allegation that there had been ‘cleaning up’, it cannot be said that the jury might fairly have understood that such conduct was being relied on as part of the evidence pointing to guilt, let alone as proof of guilt in itself.[95]  The post-offence conduct was not relied upon at all by the prosecution as part of the body of circumstantial evidence leading to a conclusion of guilt but only as explaining the absence of evidence.  No Edwards’ direction was required.

   [93]R v Murphy [2004] VSCA 23, [69] (Eames JA with whom Winneke P and Vincent JA agreed).

   [94]Cf R v Chang (2003) 7 VR 236, 254 (Charles JA); R v Nguyen (2001) 118 A Crim R 479, 488-9 (Winneke P).

   [95]Cf R v Franklin (2001) 3 VR 9, 15 (Phillips CJ); R v Murphy [2004] VSCA 23, [74].

1. In any event to succeed on appeal against conviction on the basis that the trial judge failed to give an Edwards’ direction, the appellant must show that it is ‘a reasonable possibility’ that the failure to give the direction ‘may have affected the verdict’.[96]  Having regard to the strength of the circumstantial evidence and the fanciful nature of the hypothesis which counsel now contends should have been explored with the jury, there was not, in my view, a reasonable possibility that an Edwards direction would have made any difference.

   [96]Dhanhoa v R (2003) 217 CLR 1, 18; R v Cardamone [2007] VSCA 77.

1. Under ground 5 Berry submits that the aggregate of errors or defects in the trial caused the trial to miscarry.[97]  I am not persuaded that there was any error or defect which amounted to a miscarriage of justice or that any combination of errors were of such importance to the issues in the case that it can be said that the applicant did not receive a trial according to law.

   [97]See R v Kotzmann [1999] 2 VR 123, 157.

1. Ground 6 is in these terms:

·The verdict of the jury is unsafe and unsatisfactory in the sense that no reasonable jury properly instructed could exclude reasonable hypotheses consistent with innocence of murder, including the possibilities that the deceased was murdered by one person and that the applicant’s DNA was deposited on relevant items in innocent circumstances, whether before or after the deceased’s murder.

1. The following matters were advanced in support of the contention that no reasonable jury properly instructed to exclude reasonable hypotheses consistent with innocence.  First it was submitted that the deceased’s dying declaration indicated that there was only one assailant.  Secondly, it was contended that the pathologist’s evidence was consistent with a person standing behind the deceased holding the ligature and stabbing the deceased from behind.  This it was said supported the hypothesis that there was only one murderer.  These arguments are without substance.  A reasonable jury was entitled to reject such considerations.  Quite apart from the uncertainty of the deceased’s declaration, the prominent hypothesis was that one assailant held the deceased from behind with the ligature whilst the deceased was stabbed.  Then it was further submitted that such items which contained Berry’s DNA were explicable on the basis that his DNA was already present on those items or was otherwise deposited there after the fact when helping the murderer to clean up.  No innocent hypothesis which would explain how the applicant’s DNA would come to be on these items was apparent.  Furthermore the last of these facts was said to also explain the post-offence behaviour alleged against Berry.  The last of these contentions was left in an ambiguous state.  There was no evidence that supported an hypothesis that there had been any attempt by anyone to clean up anything in the deceased’s cell – to the contrary the appearance of the cell gave every indication that those responsible for the deceased’s death had left the cell immediately after he was stabbed.  As I have said, there was no evidence to support the hypothesis that one of the applicants, acting only as an accessory after the fact could have got blood on his clothing and runners whilst helping the murderer in some undefined way.

1. The evidence which I have earlier set out in some detail, demonstrates that the circumstantial case against each applicant was an extremely strong one.  The hypotheses advanced that only one person was involved in the murder of the deceased or that one of the applicants may have been an accessory after the fact who assisted the murderer or the other applicant, were hypotheses which the jury properly rejected as being not reasonably open on the evidence.

1. Finally, the Crown submission should be accepted that if any of the grounds were made out, this was an appropriate case for the application of the proviso under s 568(1) of the Crimes Act 1958. The Crown contends that even if item 10(e)(ii) should have been excluded and the directions the subject of grounds 4 and 7 should have been given, this was a case in which it could be concluded that any such error made at trial should have had no significance in determining the verdict returned by the jury.[98]  Having regard to all of the evidence, including the DNA evidence, extensively referred to earlier in my reasons, and after making due allowance for the limitations that exist for this court proceeding wholly on the record, I am satisfied that the guilt of each applicant has been proved beyond reasonable doubt.  There exists an overwhelming body of circumstantial evidence that established the applicants’ guilt.  Accordingly I am of the opinion that none of these grounds can succeed, either because in the circumstances there was no miscarriage or because, if there was, the proviso is applicable.  The applications for leave to appeal against conviction should be dismissed.

   [98]As to grounds 5, 6 and 7 of Wenitong and ground 3 of Berry. See [93].

Appeals against sentence

1. Berry was sentenced to 23 years’ imprisonment with a non-parole period of 17 years.  Wenitong was sentenced to 26 years’ imprisonment with a non-parole period of 20 years. 

1. Berry appeals against his sentence on three grounds.  Under ground 1 it is said that the sentencing judge erred in failing to pay any or sufficient regard to the fact that the applicant had been sentenced to be imprisoned for a total of seven months on unrelated matters during the currency of his remand for the present matter, thereby denying him a declaration of pre-sentence detention on the present matter as to that period, in circumstances where, had those unrelated matters been dealt with after the present matter, it is likely that they would have been served concurrently with the present sentence.

1. The applicant was arrested in relation to the present matter in January 2004.  Whilst on remand he was sentenced to a period of four months’ imprisonment on 24 February 2004 for burglary, theft and driving offences.  In May 2004 he was sentenced to a term of three months’ imprisonment for being a prohibited person in possession of a firearm, a silencer and another proscribed item.  Thus the applicant served a period of seven months for these offences whilst on remand for the present matter.  The seven months’ imprisonment for these unrelated matters did not form part of the pre-sentence detention on the present matter.  Had the sentences totalling seven months been imposed after the sentence in the present matter, it is submitted that it was likely that it would have been ordered that those sentences be served concurrently with the present sentence and that the sentences totalling seven months should have been taken into account as part of the applicant’s background.[99] 

   [99]See R v Ali (No. 2) (2005) 13 VR 257, 273-4 (Charles JA); R v Kotzmann [1999] 2 VR 123, 137 (Callaway JA).

1. A similar contention is raised under ground 2.  Complaint is made that the sentencing judge failed to pay any or sufficient regard to the fact that at the time the present offence was committed, the applicant was in custody and spent in the order of 21 months in custody on a charge of which he was acquitted.  It is submitted that as that 21 months was ‘dead time’ for which the applicant was not entitled to a declaration of pre-sentence detention on the present matter, it should have been taken into account in a general way. 

1. The power and obligation to credit a prisoner for pre-sentence detention is established by s 18(1). At common law, pursuant to the Court’s inherent jurisdiction, the Court is also empowered to discount the sentence that would otherwise be imposed in the light of detention already served.[100]  That jurisdiction extends to taking into account periods of custody before sentence which do not relate to the offence for which sentence is to be passed.  It is now accepted that, subject to the limitations imposed by s 18(2), time spent in custody which cannot be declared as pre-sentence detention within the meaning of s 18 of the Sentencing Act may be treated as time served,[101] in a general sense, awaiting trial on the charge on which the offender is about to be sentenced and is time that ought to be taken into account in the exercise of the sentencing discretion.[102]  But the reduction in an otherwise appropriate sentence to take account of periods in custody which are sometimes referred to as ‘dead time’ or to other periods in custody which do not qualify as pre-sentence detention is not to be treated as a mathematical exercise. 

   [100]R vArts & Briggs (1997) 93 A Crim R 56, 67; R v Heaney (Unreported, Victorian Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996).

   [101]As Vincent JA stated in McMahon, the fact that a period of pre-sentence detention is not encompassed by the provisions of s 18(1) of the Sentencing Act 1991 does not mean that it cannot be taken into account.

   [102]R v Renzella [1997] 2 VR 88, 96; R v Stares (2002) 4 VR 314; R v Watts and Others [2007] VSCA 81.

1. Where an offender is initially charged and is subsequently detained unconvicted in relation to unrelated matters for some time prior to the imposition of sentence on the initial charge, the time spent in custody on those unrelated matters is also usually to be taken into account in a general way.[103]  So also is time spent on remand for an offence upon which the accused was subsequently acquitted where it was time spent after the accused had been charged with the offence upon which he then fell to be sentenced.[104]  That is so even though it has been recognised that a person on remand who is subsequently acquitted cannot insist upon a sentencing court drawing upon the time served in remand when sentencing him in relation to subsequent offences unconnected with the reasons for his remand.[105] 

   [103]R v McMahon [2006] VSCA 240, [17]-[22] (Vincent JA).

   [104]R v Chimirri [2003] VSCA 45, [4]-[5] (Winneke P, Phillips and Eames JJA).

   [105]R v Kotzmann [1999] 2 VR 123, 137.

1. I accept the applicant’s submission that a similar approach should be taken, where an offender, who has been initially charged and is on remand, is subsequently convicted of other unrelated offences and serves the period of imprisonment for those sentences before falling to be sentenced for the initial charge.  R v Ali was such a case.  Counsel for Berry rightly submits, that had those sentences on unrelated matters not been imposed or completed, it is likely that an order for some concurrency would have been made.  Thus an offender is entitled to have the court in a general way take into account the sentences that have been served.  Thus the sentences which had been imposed on the applicant after the commission of the offence and which were served prior to being sentenced for the offence now before the Court and which could not be included as pre-sentence detention, should have been taken into account in a general way as part of the applicant’s background. 

1. As to ground 1, during the course of the plea and in her Honour’s reasons for sentence, express reference was made to the seven month period that the applicant had served for unrelated offences whilst on remand for the present offence.  There is no reason to conclude that the learned sentencing judge did not take into account in a general way as part of the applicant’s background, the seven months which the applicant had served on unrelated matters during the currency of his remand on the present matter in fixing the sentence that was imposed.

1. As to ground 2, I doubt that R v McMahon or R v Chimirri, upon which the applicant relies, are authority for the proposition that the time which the applicant spent in remand prior to being charged, should be taken into account.  Unlike Chimirri, the applicant was not awaiting trial on the present charge whilst in custody on remand.  That said, where an offender has not been charged with the offence upon which he now falls to be sentenced until after he has spent time in custody on remand, the circumstances may require the sentencing judge to take the time in custody into account in a general way.  R v Ali appears to have been such a case, the time spent on remand – for an offence upon which he was subsequently acquitted – and which should have been taken into account, occurring prior to the commission of the offence upon which he fell to be sentenced.

1. Her Honour made no reference to the 21 months which the applicant had spent in custody on the charge of murder on which he was ultimately acquitted.  It may be accepted that her Honour did not take that period of custody into account.  But the present offence was committed during that period on remand.  The applicant was not charged with the offence until January 2004, almost six years after he had spent that period in custody.  In the intervening period the applicant had been sentenced in 2002 to a term of six months’ imprisonment, which was fully suspended, in relation to 19 charges of burglary and theft.  Having subsequently breached the order for suspension, he served a period of three months’ imprisonment.  In February 2004 he was sentenced to four months’ imprisonment for burglary, theft and driving offences.  In May 2004 he was sentenced to three months’ imprisonment for possession of a firearm, a silencer and another prescribed item. 

1. In the present circumstances, I do not consider that any sentencing error would have arisen, had the sentencing judge not taken into account the period which the applicant served in custody whilst on remand.  The offence of which he was convicted occurred whilst he was in such custody.  Having regard to the length of time which had elapsed since that period in custody and the terms of imprisonment which the applicant has subsequently been required to serve for other offences, that period of custody on remand need not have been taken into account as requiring a discount in the sentence that would otherwise be imposed. 

1. It is convenient to consider the remaining ground of appeal against sentence of Berry and the sole ground of appeal against sentence of Wenitong together. 

Ground 3 of Berry:

The sentence is manifestly excessive, particularly in view of the matters raised in grounds 1 and 2, the applicant’s youth at the time of the offence (he was aged 20), his limited prior criminal history and the passage of time between the offence and the imposition of sentence.

1. Ground 1 of Wenitong:

The learned sentencing judge erred in that she failed to give any or proper weight to the principles of parity when passing sentence herein.

1. It is submitted on Berry’s behalf that whilst the crime of which he had been convicted was very serious ,the applicant was aged only 20 at the time of the offence and had limited prior convictions.  There had been a delay of over seven years between the commission of the offence and his sentence.  It is submitted that having regard to the periods in custody which the applicant had served and which were referred to in grounds 1 and 2, the real total period of custody of the applicant was in the order of 25 years and 4 months with a non-parole period of 19 years and 4 months. 

1. At the time of the offence Berry was a young offender within the meaning of the Sentencing Act.[106]  When the applicant fell to be sentenced he was 27 years of age.  Where as a consequence of a substantial delay a young offender falls to be prosecuted as an adult, his age at the time of the offence will be a relevant consideration.[107]  Age here functioned as a mitigatory factor as it related to the applicant’s immaturity at the time of the offence.  The applicant’s rehabilitation as a further mitigatory factor was considered by Her Honour who concluded that the applicant’s prospects for rehabilitation were not high.  In light of the applicant’s subsequent history that conclusion was not challenged on this appeal.  As to the other matters raised under this ground, the learned sentencing judge adverted to the fact that the applicant had only limited prior convictions and that the offence was over seven years old. 

   [106]Section 3(1).

   [107]R v Better [2003] VSCA 71, [12] (Buchanan JA).

1. While it may be said that the sentence imposed by her Honour was a stern one, the murder was premeditated and involved some planning.  The deceased had been subjected to a brutal attack.  Neither applicant had demonstrated any remorse for their conduct.  It occurred within the setting of a prison.  In sentencing for crimes of serious violence committed within the prison system, Vincent JA in R v Steven Devries was to emphasise ‘that prisons must not become jungles within their own subculture’ and ‘that it is not part of the sentence of imprisonment that the individual subject to it is to be required to live in fear or to be subject to violent physical attack’.[108]  Her Honour made appropriate reference to the particular importance of the imposition of a sentence which would discourage prisoners from inflicting violence upon their fellow inmates.  In my view, the circumstances warranted the imposition of a heavy sentence.  The sentence imposed was reasonably open to the sentencing judge.  The contention that the sentence was manifestly excessive should be rejected.

   [108][2005] VSCA 95, [22].

1. Wenitong contends that as he and Berry were convicted as principals acting in concert there was no basis for differentiation in the degree of culpability of either of them.  Although Wenitong was seven years older than Berry and had much more serious prior convictions, he submits that neither the difference in age nor their criminal record would justify the difference in the head sentence and non-parole period that was fixed.  Although not strictly bearing upon parity, it is further submitted that Wenitong’s sentence approached the highest end of the range of sentences which might be imposed for murder short of life imprisonment.  The complaint made is that the difference in sentence from Berry cannot be justified.

1. Wenitong had been convicted of armed robbery and a count of theft in 1993 and had been sentenced to a term of imprisonment of 2 years and 9 months with a minimum non-parole period of 2 years.  He was further convicted of armed robbery in 1993 and sentenced to 5 years with a minimum of 2 years and 9 months.  In 1994 he was convicted of burglary and theft and was sentenced to 4 months’ imprisonment.  Relevant to his prospects of rehabilitation was the fact that subsequent to the commission of the present offence he had been convicted of armed robbery and theft in May 2000 and had been sentenced to 9 years’ imprisonment with a non-parole period of 6 years.  That offence had been committed prior to the commission of the present offence.  In May 2004 he had been imprisoned for 3 months together with Berry in relation to the offences of possession of a firearm, a silencer and another proscribed item.  In my view Wenitong’s criminal history and the fact that he was some seven years older than Berry at the time of the commission

of this offence entitled the sentencing judge to impose the different sentence which she did in relation to Wenitong. 

1. I would dismiss each application  for leave to appeal against sentence.

KELLAM JA:

1. The prosecution relied upon circumstantial evidence at the trial of each of the applicants before us.  As the brief summary of the evidence referred to by Redlich JA makes clear, there were limited numbers of people inside the Cassia Unit at the time of the death of the deceased.  The jury were entitled to conclude beyond reasonable doubt that two people were involved in the murder.  The evidence was that the deceased was stabbed six times with a knife.  A knife which had been stolen from the prison officers’ console several days prior to the death of the deceased was found in the garden bed outside the Cassia Unit the day after the murder.  There was medical evidence of ligature marks on the neck of the deceased.  Three shoelaces tied together to form a ligature were found on the floor of the deceased’s cell.  The deceased was a tall, strong man who weighed in excess of 16 stone.  No injuries suggestive of self-defence on his part were found on him.  Blood stains on the floor of his cell contained three separate sets of footprints, one of which was that of the deceased.  Later testing for blood stains revealed that three trails led from the deceased’s cell.  One led to the officers’ console where the deceased had collapsed, another led to and into the cell occupied by the applicant Berry and the third led to but ceased outside the door of the cell occupied by the applicant Wenitong.  Footwear impressions found near the bed inside the cell occupied by the applicant Berry were those of an Adidas style sports shoe.  However no such sports shoe was found in his cell.  The shoe impression which led to the upstairs cell occupied by Wenitong was that of a Dunlop Volley style sports shoe.  That trail left the cell of the deceased, went side by side with the trail of the Adidas shoe, then separated and went upstairs to a point outside the cell occupied by Wenitong. 

1. The cell in which the applicant Berry resided was a short distance away from the cell in which the deceased was stabbed.  There was evidence before the jury that whilst the deceased was being attended to by prison officers a shower was heard to be running.  Soon afterwards, Berry was observed in his cell wearing only his boxer shorts.  His cell was searched afterwards.  No footwear apart from a pair of sandals was found in his cell.

1. Very near to the cell occupied by Wenitong, cell 51, was a laundry housing a washing machine.  Crime scene examiners gave evidence before the jury that the washing machine in the laundry was found to have stopped in mid-cycle.  It had a light displayed showing that it had stopped because of an unbalanced load.  Inside the washing machine was found a pair of Adidas sport shoes with a sole pattern similar to the shoe impressions found leading from the deceased’s cell to the cell occupied by the applicant Berry.  Those shoes were size 7.5.  A pair of Dunlop Volley sports shoes with a sole pattern similar to the shoe impressions observed to be leading from the deceased’s cell to that of the applicant Wenitong was also found in the washing machine.  Those shoes were size 8. 

1. In addition two recently washed white T-shirts and two pair of green tracksuit pants were removed from the washing machine.  An apparently blood stained but dry white sock was found on the lip of a bucket near the washing machine.  There was evidence before the jury that the size 8 Dunlop Volley shoes found in the washing machine had on them pen markings that had been placed there by Wenitong whilst he was wearing them previously.  Subsequently other sports shoes worn by both Berry and Wenitong were seized by police.  The shoes sizes were 7.5 in the case of Berry and size 8 in the case of Wenitong.

1. A search of Wenitong’s cell resulted in two white sports socks being found.  The socks contained very small spots of blood.  One of those socks was an Adidas brand sock and the other was unlabelled.  Analysis of a number of the items found resulted in the following findings:

·     On the knife blade was DNA that could not be excluded as having been contributed by the deceased.

·     The ligature found in the deceased’s cell had a blood stain on it.  It was at least 98 million times more likely that the DNA came from the deceased than from another caucasian Victorian person.  DNA from at least two other persons was found on the unstained portion of the ligature.  It was at least 98 million times more likely that the majority of the DNA came from the applicant Berry than from another caucasian Victorian person. 

·     The Adidas sock found in Wenitong’s cell had a blood stain, the DNA of which was found to be 21 million times more likely to have been contributed by the deceased than by another caucasian Victorian person.  The blood stain on that sock contained DNA from at least two other contributors.  The evidence was that the three types of DNA found within the blood stain were 98 million times more likely to have come from the deceased and the two applicants than from three other unknown members of the Victorian caucasian population.  The DNA evidence as to the unstained areas of that Adidas sock was that it was at least 98 million times more likely that the DNA had come from Wenitong than from an unknown person from the Victorian caucasian population.

·     The unlabelled sock found in Wenitong’s cell was also found to have blood stains with DNA contributed to by at least two people.  The deceased and the applicant Berry could not be excluded as contributors.  The likelihood was that it was at least 980 times more likely that the two types of DNA came from the first applicant Berry and the deceased, than from two unknown members of the Victorian caucasian population.

1. In my view the strength of the circumstantial case advanced by the Crown is obvious from the above summary, and before any consideration is given to the issue of the DNA analysis of the sock found on the bucket of the upstairs laundry of the B side of the Cassia Unit. 

1. Both applicants, in their statement of grounds contend however, that the evidence of DNA analysis taken from the sock found on the bucket in the laundry should not have been admitted.  (Ground 1 in the case of Berry and grounds 1 and 2 in the case of Wenitong.)  The evidence about the sock was that it bore a blood stain.  The DNA found in the blood stain was 72 million times more likely to have come from the deceased than from another person randomly selected from the Victorian caucasian population.  There was DNA material found on the unstained portion of the sock contributed to by at least four persons.  The largest portion of DNA material matched the profile of one Ali, a person who had been in custody at Port Phillip Prison two months earlier, but who had not been at Barwon Prison at any relevant time.  The evidence given by the Crown expert Dr Roberts was that neither the deceased nor either of the applicants could be excluded as being contributors to the DNA material. 

1. It is asserted by the applicants that evidence of the analysis of the DNA material on the sock found on the bucket, should not have been admitted because the material contained a DNA profile that matched one Ali, who was not a prisoner in Cassia Unit at any relevant time.  In essence it is argued that Ali’s DNA could have been present only as a result of contamination.  However, as pointed out by Redlich JA in his judgment, the ‘likelihood ratio’ which was applied by the prosecution expert witness, Dr Roberts, may be applied without resolving the question of whether or not Ali’s DNA was present on the sock as a result of contamination, or because of some other reason.

1. The evidence of Dr Roberts was that using the ‘likelihood ratio’ if he compared the hypothesis that the DNA material found on the sock contained DNA from Ali, the deceased, the applicant Berry and the applicant Wenitong and one unknown person, with the hypothesis that the material contained DNA material from Ali and three or more unknown individuals, the former hypothesis was 180 times more likely to exist than was the latter.  Dr Roberts said that that conclusion, taken on its own, provided strong support for the proposition that Ali, the deceased, and each of the applicants, together with an unknown person, were the source of the DNA.  Dr Roberts then considered an alternative hypothesis that the sample contained DNA material from Ali and the deceased, and from at least two other unknown people, and not from the two applicants.  He estimated that it was at least 95 times more likely that the former hypothesis existed than did the latter.  He said that evidence, taken on its own, provided moderate support for the proposition that the DNA in question did come from Ali, the deceased, the two applicants, and one unknown person.

1. The submission made by both applicants assumes that the likelihood ratio cannot be applied in circumstances where, as here, there is a ‘mixed sample’.  That, put simply, was not the evidence of Dr Roberts.  The likelihood ratio was calculated by Dr Roberts not only on the basis that Ali’s DNA was present, but that DNA material from at least one other unknown person was also present.

1. In my view the determination of the weight of the evidence given by Dr Roberts in relation to this matter was entirely within the province of the jury.  For the reasons given by Redlich JA, I agree that her Honour was correct in rejecting the proposition that the presence of Ali’s DNA meant that the calculation involved in the likelihood ratio had no probative effect.  I likewise agree with Redlich JA that it was for the jury to evaluate the expert testimony and that it was not beyond the capacity of the jury to evaluate the evidence and to determine on a rational basis which evidence was to be preferred.  Insofar as the opinions of the experts called on behalf of the prosecution and the defence varied, the respective experts provided the basis for their opinions to the jury and the jury would have been well able to have understood the weight or otherwise of their evidence. 

1. For the reasons given by Redlich JA I agree that the trial judge was not required to give the directions contended for by ground 2 of the applicant Berry’s ground of appeal.  Experienced counsel represented both applicants at trial.  No exception was taken as to the manner in which her Honour charged the jury in respect of the DNA evidence.  Her Honour summarised the DNA evidence carefully and the jury could not have been in any doubt as to the limitations of such evidence. 

1. I otherwise agree with Redlich JA in respect of his conclusions as to the remaining grounds of appeal against conviction advanced on behalf of each applicant.

1. As to the applications for leave to appeal against sentence, the first applicant Berry was sentenced to 23 years’ imprisonment with a non-parole period of 17 years being fixed.  One ground of appeal in his case is that the sentence is manifestly excessive, particularly taking into account the fact that he was aged 20 years at the time of the offence, his limited criminal history and the long delay between the offence and the imposition of sentence.  This ground of appeal has caused me some concern.  The sentence, as Redlich JA has stated, can be described as stern.  However, is it manifestly excessive?  The murder was a cold-blooded execution of another prisoner.  Clearly it was premeditated and involved planning.  The deceased had a ligature tied around his neck, no doubt to reduce his prospects of calling for help, and was stabbed six times with a knife which had been stolen previously from prison staff.  Her Honour observed that there was no evidence of remorse and although the young age of the first applicant justified careful consideration, there was no evidence before her Honour to establish that rehabilitation had commenced in any meaningful way as at the time of sentence, seven years after the offence was committed.  The fact that the murder took place in a prison must play considerable weight.  Regrettably, all manner of persons from all manner of backgrounds, often aged as young as 18 years to those of advanced age, find themselves incarcerated in the prisons of this State.  Prisons should not be places of violence and fear for their inhabitants, nor should they be places where the most violent persons can control the lives of other prisoners.  For obvious reasons, offences committed in prisons are often difficult to prosecute.  It must be clear to those who exact violence upon others in a prison, that punishment will be severe.  In all the circumstances, that factor in particular leads me to conclude that, notwithstanding the young age of the first applicant at the time of the offence, the sentence imposed upon him, although stern, was not manifestly excessive.

1. As to the complaint of the second applicant, Wenitong, that his sentence failed to take into account sufficiently the issue of parity, both his criminal history and the fact that he was considerably older than the first applicant, Berry, in my view did entitle the sentencing judge to impose the different sentence which she did in relation to him.

1. I otherwise agree with the conclusions reached by Redlich JA for the reasons expressed by him in relation to other grounds pursued by the applicants in relation to the matter of sentence.

1. I would order that each application for leave to appeal against conviction and sentence be dismissed.

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