R v Jones

[1992] QCA 173

IN THE COURT OF APPEAL [1992] QCA 173

SUPREME COURT OF QUEENSLAND

C.A. No. 347 of 1991

T H E Q U E E N

v.

KERRY WAYNE JONES

JUDGMENT - THE COURT

Delivered the Twenty-sixth day of June 1992

This is an appeal against convictions of burglary, rape and armed robbery. At about 4 a.m. on 22 June 1990, a young girl ("the girl") was raped at her home in Townsville by a man who

had broken in and who threatened her with a knife to effect his

purpose. The perpetrator then, again using the knife to achieve the girl's co-operation, stole some cash and left; so much is not disputed.

At a time and place close to the time and place of the rape, the appellant hailed a taxi and was picked up. The driver gave a description of him which was similar to that given by the girl. Two policemen on patrol, in response to a phone call, intercepted the taxi at a service station shortly afterwards.

They spoke to the appellant, who gave a false name, said he had just came from a party with some people at 10 Herbert Street,

but did not know whose place that was; in fact, Herbert Street

is the next street to that in which the girl lived and it has no

house number 10 in it. The description of the appellant the police gave was, again, similar to the girl's description of the perpetrator. The appellant accompanied the police to the Townsville Criminal Investigation Branch, but left the premises before he could be questioned. In the following month, he was

located at Kuranda but ran from the police when they approached

him. These and some other circumstances were, it appears,

relied on as relevant to the issue of identification; but since the verdicts are not argued to be unsafe, it seems unnecessary to set out all the matters the Crown said were probative.

The perpetrator was described as having, inter alia, a receding hairline, coarse-looking hair and a long unkempt beard.

At the trial the girl was not asked to identify the appellant

in Court; we were told that he then had a completely shaven

head.

The perpetrator left samples of biological material behind:
hair, blood and semen. The hair was scientifically examined
and sworn to resemble that of the appellant and it was
determined that the perpetrator and the appellant both secreted

group "O" blood. These biological similarities, however, were not put forward as the chief merits of the Crown's scientific case. The prosecution relied more heavily on analysis of deoxyribonucleic acid samples, as showing that it was very

likely that the semen examined was the appellant's.

The appellant gave no evidence. His counsel on the appeal, Mr. Carmody, did not submit that the Crown case was insufficient to support the conviction, but attacked the judge's direction to the jury. The principal ground of attack was based on Shepherd (1990) 170 C.L.R. 573; it was said as to the D.N.A. profiling

evidence mentioned below, being a major part of the scientific evidence presented, that the jury should have been directed that proof beyond reasonable doubt was, as to one aspect, necessary.

A similar submission was made with respect to the evidence of
description, some of which is mentioned above; it was said that

the jury should have been told that before they could use that evidence they had to be satisfied beyond reasonable doubt of the appellant's presence at the scene. The latter submission, which seems to have no substance, was not we think pressed. Mr. Carmody further contended that the jury was insufficiently cautioned on the issue of identification in that the jury was not told that even honest careful witnesses can be mistaken.

Then, Mr. Carmody said that the jury had to be satisfied, on the question of flight, that the motivation was consciousness of guilt. If this implied that the summing up was defective in that respect, it appears to be based on a misapprehension. The judge told the jury repeatedly that they could not use the

evidence of flight against the accused unless satisfied that it
was due to consciousness of guilt.
D.N.A. Profiling

The attack on the summing up focused particularly upon the D.N.A. tests, which are conveniently called D.N.A. profiling. In order to comprehend the point Mr. Carmody made, it is necessary to give some explanation of the effect of the evidence about this technique.

The cells of living things, including human beings, contain genetic material, most of which is in the nucleus of the cell (if the cell has one). It is called D.N.A. - deoxyribonucleic

acid. D.N.A. functions, by a coding process the details of which are of no present consequence, to control the development of the fertilised egg into the human being and to control aspects of the physical functioning of that human being. Each cell of each person has precisely the same D.N.A. as each other cell of the same person, unless there is a mutation. That is, the same set of instructions for the development and functioning of the whole organism is contained in, for example, each of the semen cells and in each of the blood cells of an individual.

Apart from the components of the D.N.A. which have the practical functions we have mentioned, there are other parts which are redundant - "nonsense" as the evidence described them - and have no known function of a coding kind. Normal human beings are, as to the functioning parts of their D.N.A.,

genetically very similar to one another; if there is a mutation in the functioning parts, it is usually harmful and therefore

tends to be bred out. Redundant, non-functioning, parts of the D.N.A. are apparently not subject to natural selection and therefore tend to be highly variable from one individual to another; they can vary, so to speak, without penalty. The theory underlying D.N.A. profiling depends on this high degree of variation of the redundant D.N.A.

Here, D.N.A. extracted from a mixture of the perpetrator's semen and the girl's vaginal fluids found on the floor in her bedroom was compared with D.N.A. extracted from a mixture of the

appellant's blood and the girl's blood. By the techniques used, it was allegedly determined that there was only a very small

chance of the D.N.A. in the perpetrator's semen not coming from the same individual as the D.N.A. in the appellant's blood: it was suggested that the chance was about 1 in 15,000.

Mr. Carmody's criticism of the summing up focused on one point of a very complex theory and technique, namely the conversion of the laboratory test results into a probability that the semen D.N.A. came from the same individual as the appellant's D.N.A., put at 1 in 15,000. Although, with respect, the argument on this point was a little hard to follow, it appeared to be based on the suggestion that perhaps the witness who gave evidence about the tests (a Dr. Roberts) did not have proper data to justify the conclusion that the probability mentioned was 1 in 15,000 - "the probability question". Dr. Roberts, a biochemist at the State Forensic Science Laboratory in Melbourne, gave evidence that the data base used contained

blood samples from about 280 individuals. He said, in effect, that by taking samples from various populations "we observe roughly the same frequencies in different samples". The frequencies referred to were frequencies of occurrence of

certain characteristics of the D.N.A. molecules, pertaining to the redundant parts. He said that similar results have been obtained with samples derived from different "ethnic mixtures".

In cross-examination, he added that:

"... when one looks at different data bases, that is, profiles from groups of people obtained by different organisations, one observes that any given D.N.A. profile is about as common in each of these groups that have been studied, which suggests that the profiles are randomly distributed ..."

Mr. Carmody contended in effect that unless the jury were satisfied beyond reasonable doubt that this evidence was correct, they could not act upon Dr. Roberts' view and must reject his evidence completely; he relied as we have said on Shepherd and it is convenient to call the direction which is in issue a "Shepherd direction". Mr. Carmody referred us to an

article discussing the validity of the assertion just discussed, that the redundant genetic material has a random distribution of the kind Dr. Roberts relied on.

As was pointed out during the course of argument, scientific evidence typically has, and the evidence here in question certainly has, more critical links than one. One could mention in the present case the adequacy of Dr. Roberts' qualifications; the suitability and proper maintenance of laboratory equipment used; the skill and reliability of the

people who, according to the evidence, did part of the work under Dr. Roberts' general supervision; the correctness of the various biological and statistical theories on which the technique is based and the proposition that, if properly set up and used, the equipment reliably identifies characteristics of particular segments of D.N.A. molecules. The probability question has been the subject of some published controversy and some questions were asked about it at the trial. In the present case, neither of these features seems enough to justify discriminating between the probability question and other

essential links in the chain leading towards the conclusion, which was that it is extremely unlikely that the D.N.A. in the perpetrator's semen and that in the appellant's blood came from different individuals.

It is common enough for people to be convicted on evidence, important parts of which are not proved beyond reasonable doubt.

If a number of witnesses see a person attacked by another and
each independently identifies the attacker as the same
individual, being previously known to him or her, one would

expect that evidence to be treated as relevant on the question of identification, even if each of the witnesses admits that he or she is uncertain about it - for example because the light was poor. The present case is, in principle, similar, the only issue being the identity of the girl's attacker. The Crown was

able to rely on a number of pieces of evidence pointing towards the appellant. For example, the jury was entitled to take into account that the taxi driver's description of the appellant was similar to the victim's description of the rapist, combined with the circumstance that the appellant was picked up by the taxi driver at a time and at a place close to the time and place of

the attack. The jury was entitled to consider these matters, even if not satisfied beyond reasonable doubt that (for example) the taxi driver's description or fixation of the time was correct.

This is not a chain case but a rope case, in that there are a number of pointers towards the identity of the rapist and not one only. Yet Mr. Carmody says that even in that sort of case, a particular strand - the D.N.A. test - must be the subject of a Shepherd direction and the direction must apply to a particular point in that strand. It is unclear why it is said that one rather than another of the group of considerations bearing upon proof of identity, namely the D.N.A. profiling, is to be the subject of a Shepherd direction. Nor is it clear why one particular link in the chain of proof of the D.N.A. profiling conclusion, rather than another or others, should be the subject of a Shepherd direction. As to the latter point, experience would suggest that faulty technique or interpretation of results, rather than a deficiency of the kind relied on by Mr. Carmody, might be a source of error in complex laboratory work of this kind.

Although the matter was not put in this way, in essence what we were asked to do by Mr. Carmody was to form our own ideas about the reliability of the statistical evidence supporting the conclusion that there was only a very small chance that the two relevant specimens of D.N.A. came from two individuals and not one. The implication was that we should

have reservations about the accuracy of that evidence,

apparently to be formed by our own study of published material concerning tests of this type, and should conclude that a Shepherd direction was therefore necessary on that point.

Shepherd

In the principal judgment, that of Dawson J., there is to be found authority for the following propositions:

1.In a circumstantial evidence case, it is usual to give a

direction that guilt should be the only rational

inference that can be drawn from the circumstances;

in some instances such a direction is not necessary.

2.There is no rule that in such cases no inference of guilt can properly be drawn other than from facts which have been proved beyond reasonable doubt.

3.One should sometimes identify intermediate facts constituting indispensable links in a chain of reasoning towards an inference of guilt; if so it may well be appropriate to tell the jury that such facts must be proved beyond reasonable doubt.

4.Where the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give the direction just mentioned.

As to the first point, no question here arises, since the judge directed the jury that they must acquit unless satisfied

that guilt was the only rational inference that could be drawn from the circumstances. As to the third point, there must be

found some reason for distinguishing from others the

intermediate step which is to be the subject of a Shepherd direction, in order to necessitate such a direction. Such an

intermediate step would ordinarily, one would expect, be a point

of central importance in a logical sense and not merely because one side or the other places emphasis upon it. Here, there was cross-examination about the way in which Dr. Roberts converted the laboratory observations into a probability estimate, but that cannot be enough to require the judge to give a direction that the point must be proved beyond reasonable doubt.

Further, it is to be noticed that although the defence asked for a number of redirections, including some with respect to the scientific evidence, it was not suggested at the trial that a Shepherd direction should be given on this point.

With respect to the fourth point which we have extracted from Shepherd, it appears that the present case falls into the

rope, rather than chain, analogy in that the prosecution relied upon a number of different indications of the appellant's guilt, some of which were independent of one another. For example, the description evidence, which seemed in the whole of the

circumstances to have some strength, so far as one can tell from reading the record, had nothing to do with the D.N.A. profiling evidence or the other scientific evidence. We do not understand the reasons of Dawson J. to support the view that in such a case it is likely to be necessary to give a direction as to

intermediate steps of the kind contended for.

In our opinion, the judge did not err in his summing up, which appears to have been both thorough and balanced, in failing to give a direction that the adequacy of the statistical

basis of Dr. Roberts' probability calculation had to be proved

beyond reasonable doubt.

Identification

To some extent, the matters to be considered under this heading depend upon the view taken as to the effect of Shepherd.

Mr. Carmody argued, fairly elaborately in his written submission and rather less elaborately in the oral argument, that inadequate warnings were given on identification. He submitted that the girl's description of the perpetrator's face was vague and inconsistent, that the jury may not have been aware that an honest witness may be grossly mistaken about the appearance of a stranger seen in dark conditions for a brief period, that the recognised dangers associated with the evidence of identification or recognition also exist in relation to testimonial descriptions and that particular problems are involved in cases of cross-racial identification; the

perpetrator was identified as a dark man.

Mr. Carmody also said that special caution is necessary in cases of identification and implied that this was not made clear enough to the jury.

Reference to the record of the summing up shows that the judge reviewed the evidence on this point at some length. He

pointed out that the jury had to consider the evidence as to the light in the house and the girl's opportunity to observe her

assailant, and reminded the jury that he was a stranger to her.
He also specifically drew attention to a number of other points

to which the jury might have regard as favouring the defence on

this issue.

As has been pointed out, neither the prosecution nor the defence asked the girl at the trial whether she could identify

the appellant, then a man with a shaven head, with the man having a hirsute head who had raped her. The aspects of

description by the girl which the Crown relied on were the

nature and pattern of clothing worn by the perpetrator, his facial appearance and coarse hair. In view of the extent of the

physical contact the girl had with the perpetrator, the details of which it seems unnecessary to set out, one would hardly have expected her to be uncertain about the general nature of the hair on his head. As to the other identifying aspects, it

appears to be true that the degree of lighting would have been of more significance. The judge drew the jury's attention to this point and we can see no deficiency in this aspect of the summing up.

A separate point taken was that the girl exhibited uncertainty about the location or existence of a mole which the perpetrator might or might not have possessed. It was argued that the judge should have given a particular direction about that. He recounted the evidence about the mole in at least as much detail as its importance warranted and it seems plain beyond serious argument that there is nothing in this point.

After the matter was argued before us, the High Court decided Domican (1992) 66 A.L.J.R. 285. No argument as to the

effect of the reasons given by the majority on the outcome of the present case has been put forward. We cannot identify any feature of the judge's directions with respect to the question of identification which is in conflict with those reasons.

Other Matters

The written argument raised a complaint about the admission of evidence of a violent outburst by the appellant in New South Wales. The matter was not pressed, and rightly so. Then it was said that the judge wrongly referred to "confessional statements", when the use of the term was inappropriate. The judge referred the jury, as circumstantial evidence relied on by

the Crown, to certain statements made to the police. It appears that the Crown relied on inferences which supposedly might be drawn against the appellant from the content of part of those

statements; there is no question of the appellant's having made
a confession in the ordinary sense. The judge said:

"It is suggested by the Crown here, and I will elaborate on this shortly, that the accused makes statements in that document, and the answers at least contained in that document, which tend to prove his guilt. In other words, they are in the nature of confessional statements".

As punctuated, this is in two sentences, the second of which is capable of being read as a direction by the judge that the statements were in truth equivalent to confessions. In the context, however, it seems clear that his Honour was explaining what the Crown contention was, in order to give a warning about it. The judge explained that a confessional statement is one which tends to prove guilt and that before the jury can act on such a statement, they must be satisfied of certain matters; the warning appears to be, in itself, unexceptionable.

In our view, there is no likelihood that the jury took the passage quoted as being equivalent to a direction, or an expression of view, that the statements in question were tantamount to a confession or tended directly to prove guilt. At the trial, counsel asked for a redirection on this point, "that there is nothing in the record of interview which amounts to a direct admission of the offence". That was obvious.

Lastly, Mr. Carmody suggested during the oral argument that there should be a retrial, so that the whole question of the D.N.A. test could be gone into more thoroughly. There was no evidence and indeed no submission that the defence lacked opportunity or resources to contest that evidence at the trial.

Mr. Carmody appeared to imply that, given a further chance, the

defence might more vigorously probe aspects of Dr. Robert's

evidence; to grant a new trial on that ground would not appear
to be a proper exercise of discretion.

In our opinion, the appellant's attacks on the summing up fail and the appeal should be dismissed.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 347 of 1991
Before the Court of Appeal
The Chief Justice
Mr. Justice Pincus

Mr. Justice McPherson

T H E Q U E E N

v.

KERRY WAYNE JONES

JUDGMENT - THE COURT

Delivered the Twenty-sixth day of June 1992

MINUTE OF ORDER:  The appeal against convictions is
dismissed.

CATCHWORDS:CRIMINAL LAW - SUMMING UP - Appellant convicted of burglary rape and armed robbery - whether evidence as to DNA testing reliable - whether "Shepherd" direction necessary - whether summing-up adequate

Counsel:	M. Byrne for the Crown T. Carmody for the Appellant
Solicitors:	The Director of Prosecutions for the Crown The Legal Aid Office for the Appellant
Hearing Date(s):	1 May 1992

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 347 of 1991

T H E Q U E E N

v.

KERRY WAYNE JONES

_______________________________________________

The Chief Justice
Mr. Justice Pincus
Mr. Justice McPherson

_______________________________________________

Judgment of the Court delivered on 26th June, 1992.

_______________________________________________

APPEAL AGAINST CONVICTIONS DISMISSED.

_______________________________________________