R v John George Borg, Douglas John Frederick Carroll, Wayne Frederick Fear No.2

[2015] NSWDC 116

District Court

New South Wales

Medium Neutral Citation:	R v John George BORG, Douglas John Frederick CARROLL, Wayne Frederick FEAR    No.2.; FEAR: Verdict by Direction Application [2015] NSWDC 116
Hearing dates:	1 June 2015 to 2 July 2015
Date of orders:	22 June 2015
Decision date:	22 June 2015
Jurisdiction:	Criminal
Before:	A Haesler SC DCJ
Decision:	There is no basis in law or fact to direct a verdict of acquittal. The application is refused
Catchwords:	Verdict by Direction; DNA profile match; Circumstantial case; DNA only evidence of identity.
Cases Cited:	R v Adams [1996] 2 Cr App R 467 Aytugrul v The Queen (2012) 215 A Crim R 501; (2012) 247 CLR 170 R v Doheny and Adams (1997) 1 Cr App R 369 Fitzgerald v The Queen [2014] HC 14 Forbes v R [2009] ACTCA 10 Forbes v The Queen [2010] HCA Trans 120 R v Green, unreported CCA NSW 26/3/1993 R v Gumm [2007] SASC 311 R v Hillier [2007] HCA 13; (2007) 228 CLR R v Hillier [2010] ACTSC 33 R v JCG (2001) 127 A Crim R 493 R v Karger (2001) 83 SASR 1 R v Karger (2002) 83 SASR 135 Maguire v HM Advocate [2003] SLT 1307. R v Milat (19960 87 A Crim R 446 at 447 R v Noll [1999] 3 VR 704 DA v Osbourne 556 US -2009 R v Pantoja (1996) 88 A Crim R 554 R v R (1989) 44 A Crim R 404 R v Reed [2009] EWCA 2698 R v Rowe [2004] SASC 427 Rush 672 NYS 2d 362 Talay v R [2010] NSWCCA Tuite v R [2015] VSCA 148 R v Watters [2000] EWCA 81
Category:	Procedural and other rulings
Parties:	Crown (Director Public Prosecutions) John George BORG Douglas John Frederick CARROLL Wayne Frederick FEAR
Representation:	Counsel: Mr M McColm (Director Public Prosecutions) Mr K Buckman (for Borg) Mr S Siva (for Carroll) Mr F Coyne (For Fear)   Solicitors: Ms K Parker (Director Public Prosecutions) Mark Klees & Associates, (for Borg) Mr T Sellathambu, Legal Aid NSW, (for Carroll) Ms C Khurana, AKN Associates, (for Fear)
File Number(s):	2013/93716;2013/93858;2013/93667

Judgment

FEAR- Verdict by Direction Application

Introduction

1. On 2 June 2015 a jury was empanelled to try John George Borg, Douglas Frederick Carroll and Wayne Frederick Fear. Mr Borg is tried as an accessory before the fact; Mr Carroll and Mr Fear as principals.

2. The Crown allege Borg wanted his Mazda RX 8 destroyed so that he could claim insurance, the agreed value being more than he had recently paid for it. On 29 November 2012 the vehicle was under repair at Classic Body Repairs, Asquith. It is not in dispute that it had been taken there following an earlier failed attempt by Borg to have it destroyed. It is alleged Carroll and Fear together, at Borg’s instigation, broke into Classic Body repairs that night and lit a fire in the Mazda and 3 other vehicles. Those fires destroyed the Mazda and many other vehicles; in addition Classic Body Repairs was gutted. There is no direct evidence against any of the accused. The Crown case is circumstantial.

3. At the conclusion of the Crown case Mr Coyne, for Fear, asked that I direct the jury to return verdicts of not guilty. Mr Coyne contends that the only evidence to connect Fear with the break in and the fires is a DNA profile match between Fear’s profile and profiles taken from DNA recovered from the handles of a red tool box stolen from Classic Body Repairs the night of the fire. He submits in those circumstances any conviction would be unsafe as the critical link between Fear and the commission of the crime has not been proved beyond reasonable doubt.

4. These are my reasons for refusing that application.

Evidence at trial

5. There was a break in and fire at Classic Body Repairs on the 29 November 2012. It is not in serious dispute it was deliberately lit. Borg’s Mazda was destroyed. It was one of the seats of the fire which ultimately also destroyed Classic Body Repairs. Borg had a motive to have his car destroyed. In mid-November 2012 he had organised an “accident” which led to the car being at Classic Body Repairs. He had intended that “accident” to totally destroy his car.

6. Telephone call records indicate Borg’s phone called Fear’s phone 33 times in mid-November 2012 but not thereafter. Fear and Carroll know each other. Call records shows regular contact in 2012 and 2013. Call records also show regular contact on 29 November 2012 before the break in and fires and some contact after it: Exhibits 53, 54 & 55.

7. Lawful police telephone intercepts in March 2013 show that after Borg called Carroll to tell him police wanted to speak to him again about the Mazda, soon after Carroll called Fear to “oh let you know about something”: exhibit 50(b)TI Product number 4254 transcript, at page 1.

8. Fear was interviewed by police on 23 March 2013. In his Interview he was asked:

At Q 81 “Any knowledge of a person by the name of John Borg?” He answered,” Don’t know the name”.

At Q82, “You’ve never heard of the name John Borg? A. “No”

At 83; "Never spoken to a person by the name of John Borg?” A; “Don’t know the name, don’t think so.”

9. Ms Beilby a senior forensic biologist and DNA analyst with the Forensic Science Service (FSS) told the jury about DNA and her analysis of the profiles obtained from the tool box and the profile obtained from the sample of DNA Fear provided to police on his arrest: TT 504 to 541. In summary she said that there was a match between the profiles. She explained how scientists calculate the probabilities or frequencies that underpin the strength of such matches. She said that the chances of another unrelated person having the same matching profile were one in 1 billion or more. The chance of a sibling or brother having the same profile she said initially was 1 in 11,300 but she later corrected this to 1 in 7,000: TT 513 then 519 -521 and 541. Fear has three brothers: Exhibit 57.

10. Her full report was tendered: exhibit 46. She told the jury the statistical calculation of 1 in 10 billion was a very high figure but in the absence of a capacity to test everyone in the world a sample or subset of DNA profiles was used as a basis to calculate these probabilities: TT 509. Mr Coyne took her in some detail, to how her statistical calculations were reached. She conceded that although familiar with the use of statistics she did not compile the programme used to calculate the figures given in evidence.

11. No challenge was made to Ms Beilby’s expertise in using and interpreting the programme.

12. Ms Beilby was also taken to possible mechanisms by which DNA could be deposited on an item such as a tool box either directly or by secondary transfer. A number of alternative hypotheses were put to her. She accepted that experimental testing carried out by her and others at the FSS illustrated how DNA in recoverable quantities could be moved to an item which had never been touched by the person, the source of the cells from which the DNA had been recovered- secondary transfer. One test showed that if hands are in contact for more than 10 seconds DNA can be transferred from one person to another and then to an object. Another experiment showed that cells containing DNA could adhere to latex gloves, those cells could then be transferred to some other objects, although much depended on the nature of the surface of that object. She was also taken through various hypotheses involving the contamination at the laboratory and at the crime scene. She said that undetected contamination at the laboratory was not a realistic possibility. She could not speak to possible contamination at the crime scene.

13. This later point was important as there is evidence before the jury that the tool box was not immediately or effectively secured prior to DNA swabs being taken from its handles and forwarded to the FSS. This testing occurred at Hornsby Police Station’s Exhibit Room at about 1.10PM on 30 November: Ms Ferris, TT 192.

14. The first witness at the scene of the fire was a neighbour, Mr Matthew Gleeson: TT 64-78. He directed the fire trucks to the scene. He said another man was already there. That man showed him the open tool box in the road. That tool box was moved onto the grass verge. The man then drove off. He did not, as he had indicted to Mr Gleeson he would, stop and speak to police. The man’s name and whereabouts remain unknown.

15. Other witnesses saw the tool box on the grass verge. Ms Amanda Woods, an employee of Classic Body Repairs admitted she may have touched it: TT 330. Police were shown the tool box. It was photographed in situ: exhibit 17. The tool box was moved to the rear of a caged police truck. Every police witness who may have had contact with tool box said a fresh set of disposable latex gloves was used before touching it and that it was lifted by it handles. The tool box was then transferred to Hornsby Police Station to a room to which the public had no access but police did before being moved to the exhibit room where it was left on the floor. That room was secure but on request any police officer could get the key and have access to the room.

Submissions

16. Mr Coyne was brief and to the point. He submitted that a proper application of the High Court’s decision in Fitzgerald v The Queen [2014] HC 14, required directed verdicts of not guilty as the only evidence connecting Fear to the crimes alleged is the DNA profile match between that taken from his sample to that taken from the DNA recovered from the tool box handles on 30 November 2012. He submitted that given the potential problems with contamination, secondary transfer and the inability of an expert to say a match of profiles was evidence of the identity of a person who had in fact handled the box, that evidence alone was insufficient to prove guilt. Any other evidence relied on by the Crown; he submitted, was at best equivocal and could not connect Fear with the crimes alleged to have been committed on 29 November 2012.

17. Mr Crown, in response, was even briefer. He said the Crown case is not restricted to the DNA evidence. There are other circumstances and all of the evidence must be considered by the jury. That consideration, he submitted, involves an assessment of the challenges to the DNA evidence and their own assessment of the weight to be given to Ms Beilby’s expert evidence and any the concessions made by her.

Legal principles

18. In R v R (1989) 44 A Crim R 404, the NSW Court of Criminal Appeal held that:

“It is one thing for a Court of Appeal to a review a jury’s determination of fact. It is another thing altogether to permit a trial judge to pre-empt such a determination.” At 415-415.

19. R v R is authority for the proposition that even where the trial judge’s assessment of the evidence is such that a verdict of guilty based upon it would be unsafe and unsatisfactory (to use the term then in vogue) a trial judge does not have the power to direct a verdict of acquittal.

20. While the court in R v R was prepared to hold that in some circumstances a judge could reject weak identification evidence and then in the absence of any other evidence direct an acquittal there was not here, nor could there have been, such an application. The admissibility of DNA evidence based on the Profiler Plus system used here and other more modern systems and the statistics underpinning such matches is now well settled: see R v Karger (2001) 83 SASR 1, and on appeal at (2002) 83 SASR 135, and most recently Tuite v R [2015] VSCA 148. There was no basis for a challenge to the DNA profile matching here.

21. In Aytugrul v The Queen (2012) 215 A Crim R 501; (2012) 247 CLR 170, the High Court refused, although in a different context, to adopt or promulgate any general rule for the presentation of DNA evidence. In Fitzgerald v The Queen the High Court held that that in the context of the evidence led at trial a DNA profile match supported by high statistical calculations obtained from an object found at crime scene was not sufficient to establish beyond reasonable doubt his presence at, and participation in, crime committed.

22. In Fitzgerald a DNA expert, as here, had said the chances of secondary transfer was “rare’ and that primary transfer was a much more likely source of contact or trace DNA. The expert, again as here, did concede that secondary transfer of contact or trace DNA is possible. There is a difference here however with the facts found in Fitzgerald. In that case there was evidence that on at least two distinct occasions there was opportunity for secondary transfer of the appellant's DNA to the object on which it was found, a didgeridoo. Further, the evidence there did not raise any inference about the time when or circumstances in which the DNA was deposited on that didgeridoo.

23. The Court in Fitzgerald held that the jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt; however that decision was dependant on its facts and the absence of other evidence connecting Fitzgerald to the crime. The facts there can be contrasted with those in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 637-638. In Hillier DNA evidence was but one circumstance in the Crown case. The Court held that evidence supporting inferences compatible with the appellant's innocence should not be considered in isolation from the rest of the evidence. Hillier was later acquitted at trial by Justice Besanko. His Honour was sitting alone and as the trier of fact he had doubts about the DNA evidence as there may have been the contamination in a police exhibit room: R v Hillier [2010] ACTSC 33.

24. There is no general rule that expert evidence of a profile match between DNA recovered from a crime scene stain and an accused’s DNA supported by statistics showing the rarity of such a match can alone be enough to establish the identity of an offender. However it is equally correct to say there is no a rule or principle that where a DNA profile match supported by statistics as to the rarity of that match is the only evidence incriminating an accused he or she must be acquitted.

25. In New South Wales the Court of Criminal Appeal has held that a DNA profile match supported by statistics could not in the absence of other evidence prove beyond reasonable doubt that the accused was responsible for leaving the crime scene stain: R v Green, unreported CCA NSW 26/3/1993; R v Pantoja (1996) 88 A Crim R 554 and R v Milat (1996) 87 A Crim R 446 at 447. Since those relatively early decisions DNA evidence has been considered on many occasions but the specific issue has not arisen at the appellate level. The CCA and the Chief Justice in particular has expressed the view that while in the past the courts have approached DNA evidence with caution that caution is naturally abating as experience with the use of such evidence has grown: R v JCG (2001) 127 A Crim R 493. The question was raised in Talay v R [2010] NSWCCA 308 but the appeal was dismissed on procedural grounds

26. Victoria has adopted a similar approach to NSW. Their Court of Appeal has held that DNA profiling established no more than that the accused could be the offender: R v Noll [1999] 3 VR 704 at [25]. That being said in July 2008 after a trial in the Melbourne County Court, Farah Abdulkadir Jamal was convicted of rape and sentenced to six years gaol after his identity was ‘established’ by DNA found on a swab said to have been taken from a women who claimed she may have been raped while she was unconscious after collapsing at a night club. The jury rejected Mr Jamal’s alibi and convicted despite there being no evidence he had been anywhere near the women or the nightclub. A subsequent judicial enquiry found that Jamal’s DNA had been allowed to contaminate the crime scene sample because of faulty collection procedures at the hospital examination room: Inquiry into the circumstances that led to the conviction of Mr Farah Abdulkadir Jamal: Report of Justice Frank Vincent AM, May 2010

27. In South Australia their Court of Appeal has dismissed appeals where DNA was the only evidence of identity of the offender: R v Rowe [2004] SASC 427 and R v Gumm [2007] SASC 311 at [32]. The general view is that if a jury are properly directed to subject the evidence to close scrutiny and to be satisfied of its reliability and accuracy DNA evidence is safer than other identification evidence. Juries are generally directed that, “The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA but it is not direct evidence of that fact. And…the statistical evidence must be considered in the light of the other evidence”: R v Karger (2002).

28. In Forbes v R the ACT Court of Appeal [2009] ACTCA 10 held that where DNA evidence was capable of supporting conclusion that appellant was perpetrator it was open to jury to be satisfied beyond reasonable doubt that appellant was guilty. In Forbes the Crown case was reliant solely on DNA profile match between the accused and a crime scene semen stain to a 1 in 10 billion probability and rejection by the jury of the accused’s alibi. The High Court refused special leave: Forbes v The Queen [2010] HCA Trans 120.

29. The Scottish courts have taken a very robust view of DNA evidence. In the absence of innocent explanation even DNA found on a portable item such as a woollen mask has been held to sufficient to sustain a conviction: Maguire v HM Advocate [2003] SLT 1307.

30. In England it has been held that there is no principle of law that DNA evidence of itself is incapable of proving guilt: R v Adams [1996] 2 Cr App R 467 at 469. However, it is also said that there is no rule about when it is safe to leave statistical calculations to a jury: R v Watters [2000] EWCA 81. There have been indications that the court will instruct a jury that where the DNA evidence stands alone they could not convict: R v Reed [2009] EWCA 2698. The general view appears to be that the significance of the DNA depends on the evidence in the individual case and how it is to be assessed depends critically apron what else is known about the accused: R v Doheny and Adams (1997) 1 Cr App R 369 at 373.

31. US Courts have generally rejected the idea that DNA evidence alone cannot convict: see Rush 672 NYS 2d 362. DNA is often regarded as better that visual identification evidence and treated as highly reliable. However it is also recognised that DNA often fails to provide the absolute proof it promises as many things can go awry and theory is not always matched by practice: DA v Osbourne 556 US - 2009.

Conclusion

32. When DNA profile match evidence is led at trial a number potential issues may emerge: issues of contamination, kinship, coincidence and the weight to be given statistical calculations. It for the jury to do what everyone, the prosecution, the defence and the judge will invite them to do: evaluate all the evidence.

33. I have argued extra-judicially, that where DNA evidence is used to provide a link in the chain of circumstances leading to guilt that link must be established beyond reasonable doubt. As a DNA profile match alone cannot do that, if DNA evidence stands alone some other evidence is needed before an accused can be properly convicted: Issues in Gathering, Interpreting and Delivering DNA Evidence. The National Judicial College, Expert Evidence Conference, February 2011.

34. However, as my brief review of the authorities make plain there is no a rule of principle that where a DNA profile match supported by statistics as to the rarity of that match is the only evidence incriminating an accused he or she must be acquitted. And, as R v R points out, in any event this decision cannot be pre-empted by the trial judge – it is a decision for the trier of fact, here the jury.

35. It will be a rare trial indeed where there is no evidence other than a purported DNA profile match. As the High Court made clear in Hillier before a case can be proved beyond reasonable doubt all relevant evidence linking the accused to the crime, including the DNA match and the circumstances it came to be made, must be considered in context.

36. Here there is other evidence. It includes evidence of Fear’s connection to Carroll; phone records linking Fear to Borg; what was said in intercepted telephone calls and the conclusion the jury may reach from the chain of calls – police to Borg, Borg to Carroll, Carroll to Fear; and, the alleged lie about not knowing Borg, arguably told in consciousness of guilt for this offence.

32. Other evidence may emerge as the trial is not over yet. While no onus attaches to Fear there is to date complete absence of anything to explain the source of any DNA on the tool box handles that could have been the subject of secondary transfer, or, result from contamination such as by Fear or a close male relative leaving their DNA in the police truck, Hornsby police station; or at Classic Body repairs or some other workshop where the tool box had been stored.

33. It remains open to the jury to conclude from the evidence led in the Crown case that Fear is guilty beyond reasonable doubt. There is no basis in law or fact to direct a verdict of acquittal. The application is refused.

A Jury direction is required

39. A proper direction must be relevant to the particular trial and the evidence before the court. Generally, if a jury is to avoid confusing statistical evidence with the probability of guilt it is critical they appreciate three points:

1. The statistical evidence interpreting the significance of the DNA match is not evidence of the probability that the appellant was the source of the incriminating DNA. To so regard it would be to make an error.

2. The statistical evidence interpreting the DNA match is expert evidence that the jury could use in deciding whether it was satisfied beyond reasonable doubt that the appellant was the source of the incriminating DNA.

3. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA, but it is not direct evidence of that fact. And, as is obvious, the statistical evidence must be considered in the light of other evidence in the case.

40. It is necessary for the jury to appreciate these points if they are to make proper use of the statistical evidence: Karger (2002) at [16] and [17].

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Decision last updated: 06 July 2015