R v Berry and Wenitong
[2005] VSC 272
•2 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1520of 2004
| R | |
| V | |
| NATHAN DANIEL BERRY AND STEPHEN MATHEW WENITONG | |
RULING NO.1
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July – 1 August 2005 | |
DATE OF RULING: | 2 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 272 | |
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APPEARANCES: | Counsel | Solicitors |
For the Accused Nathan Berry | Dr Gregory Lyon | Galbally & O’Bryan |
For the Accused Stephen Wenitong | A.R. Lewis | Lethbridge |
| For the Crown | Susan Pullen | Tamara Heffernan Office of Public Prosecutions |
HER HONOUR:
This is an application by Mr A. Lewis of counsel on behalf of the accused, Stephen Mathew Wenitong. This application is supported by Dr G. Lyon on behalf of the accused, Nathan Daniel Berry. The submission relates to the admissibility of DNA evidence which is said to have been determined in respect of the accused men. Initially the application for exclusion was more extensive than it ultimately became, as the evidence called obviously clarified some of the concerns that counsel had as to the admissibility of the DNA material. Ultimately, the submission came down to an exclusion of the evidence contained in Items 10(e)(ii) and 10(e)(iii).
After discussion, the Crown determined that it would not lead or seek to lead the evidence contained in Exhibit 10(e)(iii) and thus, ultimately, the application for exclusion came down to the issue only of what is referred to as site 10(e)(ii).
Site 10(e)(ii) was an unstained area which was sampled from a white sock, being item 10(e), that sock being located in the laundry area of Barwon Prison at a time shortly after the murder of Brian Edwards. Item 10(e)(i), which was a bloodstain found on that same wet sock, was able to be determined by Dr. Roberts, a DNA expert, using the likelihood ratio calculations, to be a probability of at least 72-million-to-one that the bloodstain came from the DNA of Edwards as against that of an unknown person in the community.
The evidence from Dr Roberts in respect of Item 10(e)(ii) is that there was the presence of biological material from at least four individuals. In respect of that, the majority, the larger portion of DNA in that sample, matched a DNA profile of a person by the name of Ali Ali, that is the major alleles present in the profile matched that of Ali. Ali was not then a person in custody and was certainly not at Barwon Prison at any time remotely connected to the murder. Dr Roberts assessed a number of propositions in respect of the likely ratio calculations relating to DNA identification.
Proposition one: that the stain contained biological material from Ali, Edwards, Berry, Wenitong and another unknown person. Proposition two: that the stain contained biological material from Ali and three or more other unknown persons. Proposition three: that the stain contained biological material from Ali, Edwards and two or more other unknown persons.
In relation to the first proposition that it contained biological material from Ali, Edwards, Berry, Wenitong and another unknown person, Dr Roberts concluded as against proposition two, that it is at least 180 times more likely that that proposition 1 would be correct than proposition 2, that is that it contained biological material from Ali and three or more unknown people chosen at random from the Victorian Caucasian population.
In relation to the next proposition, he determined that it was at least 95 times more likely that the DNA profile would occur if the stain contained biological material from Ali, Edwards, Berry Wenitong and another unknown person than if it contained biological material from Ali, Edwards and two or more other unknown persons chosen at random from the Victorian Caucasian population. Proposition 1 compared to proposition 3.
Dr McDonald in his statement dated 12 July 2005 said, at page 4, that 10(e)(ii) and 10(e)(iii), the two unstained areas of the white sock, contained a clear single profile as a probable major contributor, that is someone not identified in this matter. That of course has been subsequently identified as the person Ali Ali. He stated that the minor contributors to each of the two samples, 2 and 3, would not exclude a large proportion of the Victorian population. Although in his view Wenitong was excluded from Item 3 at four distinct loci. He then went on to state that in respect of Item 2 the vast majority of the alleles at every locus are represented. He said assuming all alleles are present from all contributors then one in 25 of the population is not excluded from this mixture. If that is not the case he said that is most likely as the minor peaks are very weak then one in five of the population has the same evidence as a contributor as Mr Wenitong if it means one allele is present at every locus. He continued that if some loci do not have either allele from a given contributor at any locus then everyone in the population is a possible contributor.
This was expanded upon during the giving of evidence. It was conceded by Dr. McDonald that in respect of item 10e(ii) the accused men Berry and Wenitong are not excluded, unlike item 10e(iii), which in his view clearly excluded the DNA of Mr. Wenitong.
It is not necessary for me to examine at this stage any minor disputes that may exist between them over particular alleles as it appears that they are predominantly in agreement over what can actually be found at these sites. It is the interpretation of those findings that causes concern to each of the experts.
Thus It is clear that the dispute that exists between Dr McDonald and Dr Roberts is one in relation to statistical evaluation. Dr McDonald gave evidence that the most appropriate form of statistical analysis is that of random man not excluded. The statistical analysis done by Dr Roberts relies upon a likelihood ratio approach. Each of those approaches are considered valid, scientific approaches. Each of the doctors justify the basis upon which they use these particular statistical evaluations.
It is argued by counsel for the applicant that because of the conflict between competing scientific experts the material ought not be placed before the jury as the jury would be incapable of determining which is the appropriate scientific basis upon which to act. Mr Lewis relied upon a decision of the R v Lewis[1] wherein his Honour Justice Morris stated:
“Forensic evidence, especially as it goes to a vital issue implicating the accused person in the commission of an offence, may often have a prejudicial effect on the minds of a jury which far outweighs its probative value. The jury, being people without scientific training, may often be impressed by an expert’s qualifications, appointments and experience and in the confident manner in which he expresses his opinion and yet it ought not to be left to such matters alone to provide a foundation for the jury making an assessment of the probative value of forensic evidence particularly where there are conflicts in expert testimony or where it is acknowledged that other experts of more or less equal distinction are unlikely to agree.”
[1](1987) 29 ACLR 267 at p. 271.
This is an argument that I do not consider to be a valid argument in the circumstances of this case. The Court of Appeal in R v Juric[2] referred with approval to the decision of the High Court and more particularly Gummow and Callinan in R v Valevski wherein they said:
“Juries are frequently called upon to resolve conflicts between experts they have done so since the inception of jury trials. Expert evidence does not, as a matter of law, fall into two categories, difficult and sophisticated expert evidence giving rise to complex issues, which a jury may not and should not be allowed to resolve, and simple and unsophisticated expert evidence, which they can. Nor is it the law simply because there is a conflict in respect of difficult and sophisticated expert evidence, even with respect to an important, indeed critical matter, its resolution for that reason alone, should be regarded by an appellate court as having been beyond the capacity of the jury to resolve.”
[2](2002) VR 411 at p. 426.
The Crown also relied upon the decision of R v Pantoja, a decision of the Court of Appeal of NSW[3] . I have read that decision but in my view it does not advance the matter any further, although it should be noted that it is a case in substantial agreement with Juric.
[3](1996) 88 A Crim R 554
Each of the experts is able to put forward their reasoning , and explain and justify to the Court precisely why they use the particular method of statistical calculation and frequency that they use. Each of the statistics and what they mean are capable of explanation to a jury. Both experts equally have the view that very large numbers of the population cannot be excluded as being contributors, but it is the actual numbers on which they disagree.
Whilst I have no doubt that this is difficult evidence the issue of the statistical interpretation is a matter that will be within, in my view, the capabilities of a jury to determine and accordingly I would not exclude the evidence on that basis.
The next basis upon which this evidence is sought to be excluded is the fact that the major contributor to the DNA in site 10(e)(ii) is Ali Ali, a person who, as I have already indicated, was not within the prison system or Barwon Prison at the time of the murder of Mr Edwards. It is submitted by Mr Lewis that as a result of the inclusion of Mr Ali’s DNA on this site there has been contamination of the site and the item in general. The Crown submit that in fact there has not been necessarily a contamination but that there could be other rational explanations for the presence of the DNA on the sock that was located in the laundry. Whichever view is taken, be it contamination or another rational explanation for its presence, the fact is that the DNA of Mr Ali Ali is located on the item in the area with the DNA of other minor contributors.
It is submitted on behalf of Mr Lewis that this causes prejudice to his client and unfairness which cannot be cured in that because there are matching alleles between Mr Ali and his client on three sites, that prevents his client having the opportunity of being excluded from those sites because the DNA of Mr Ali masks the presence or absence of his clients DNA at those sites.
Mr Lyons, on behalf of his client, submits that in respect of this contamination, as he described it, it adds a measure of speculation that will prevent the jury from being able to properly evaluate the evidence. Mr Lyon posed a number of issues that the jury could indeed speculate about. I note that in respect of this matter the Crown put forward a theory as to how the DNA of Ali Ali may have come to have been on Item 10(e)(ii). In relation to the scenario put forward by the Crown I have to say that I find it speculative at best.
It is my view that in this case the fact that there is a contaminant will be clearly known to the jury. The issue for the jury in relation to Item 10(e)(ii) is whether they can be satisfied that the DNA of either Mr Wenitong or Mr Berry is also contained on that site. That is a matter about which they would have to be satisfied beyond reasonable doubt before they could use that particular site as being any evidence capable of being used in a manner adverse to either of the accused. I have no doubt that the jury will be able to understand and readily appreciate that that is the only issue in relation to site 10(e)(ii) that is before them. I will be doing all that I can to discourage counsel, including the Crown, from putting forward fanciful hypotheses as to how the DNA of Mr Ali Ali came to be upon the sock. That, in my view, is not the issue for this jury, the issue is whether or not they are satisfied, as I indicated, beyond reasonable doubt, that the evidence proves that the DNA of Mr Wenitong or of Mr Berry or both is contained on that area of site 10(e)(ii).
Accordingly, I will admit the evidence of Item 10(e)(ii) into evidence. For the reasons that I have indicated, the material is highly probative and, whilst it contains a minor prejudicial aspect, the probative value clearly outweighs the prejudicial aspect of this evidence.
In this next application for evidence to be excluded I will determine the issue on the basis of, first, relevance and, secondly, whether the prejudicial aspect outweighs the probative value of the evidence.
The evidence sought to be excluded is evidence in the letter written by Peter Synan and postmarked 28 August 1995. It was a letter sent to the deceased, Edwards, on or about that date which read:
“I want you to know I know all about how you lagged a few people and there is no way you can worm out of it dog. I’ll be spreading the word in there for you so your days are numbered. I promise you will not make it out alive five grand should do it. You are a real scumbag Brian for doing what you did.”
What follows on from that document is a lengthy series of handwritten material which had been provided to a witness, Lindy Jones, who works in the document examination area of the Victorian Forensic Services. She has determined that that note was written by Peter Synan to the deceased man Brian Edwards.
The Crown seeks to lead that handwritten letter together with a series of letters that followed. The Crown puts forward that they are not relying upon motive as to the use that the jury can make of that letter. To quote what the prosecutor had to say;
“it shows Synan’s sentiments towards Brian Edwards, referring to his intention to spread the word about Edwards being a police informer dog”.
The Crown further seek to produce a number of letters from Synan to Wenitong, from Wenitong to Synan and from Wenitong to Berry and from Berry to Wenitong. The purpose of seeking to tender such letters is that the Crown indicate that they wish to show the relationship between Synan and Wenitong was a close relationship and that the relationship between Berry and Wenitong was a close relationship that continued even after Berry had left the prison environment. They also seek to show a relationship of some sort between Berry and Synan.
I can see no basis for the tender of the letter from Synan to Edwards from 1995. This murder occurred in March of 1998, well over two-and-a-half years after the writing of that letter. If it is not being put forward as motive, which clearly the Crown concedes it cannot do, then it is difficult to see any basis at all upon which that letter is being tendered to the Court.
In relation to the letters from Synan to Wenitong and Wenitong to Synan, equally those letters must be excluded as there is nothing contained within them that is of any relevance to the trial that is currently before this Court, once the letter from Synan to Edwards has been excluded.
Equally, there should be some formula for the Crown and the defence to be able to use in relation to the continuing friendship of Mr Berry and Mr Wenitong post Berry’s release from prison. There is nothing within the letters that could constitute an admission or anything even close to an admission. The references of reporting that someone had been killed in his unit that day is something that would be expected to be in any letter that was written during a lockdown period shortly after the murder, it was a reporting of facts, not any form of admission by Wenitong to Synan. The references in there to “keeping your guard up” could be construed in so many different ways that there is no inference that a jury could be permitted to draw from them. Equally the reference to the St. Kilda Road police complex and his presence there clearly relates to other offences with which the accused man had been charged. Nothing in the letters is capable of being used to assist the crown case in the manner they have submitted is admissible.
They are purely prejudicial, talking about various aspects of prison life of which the jury does not need to be informed. Accordingly, as indicated, there should be some basis of an agreed form of letting the jury know that the friendship continued after release from prison if that is essential to the crown case.
I see no relevance or reason for admitting the evidence relating to the relationship between Synan and Wenitong nor of Berry and Synan. If there is not some agreed formula able to be negotiated between the defence and the Crown relating to the ongoing friendship, then I will hear further argument on the relevance of the issue of that friendship and the manner of its proof if necessary.
Accordingly I exclude all of the evidence relating to the letters as outlined above, and the inter prison telephone call between Synan and Wenitong.
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