R v Marticanaj

[2010] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MARTICANAJ

[2010] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)

23 December 2010

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE

Appeal against conviction and sentence - defendant and appellant found guilty by jury verdict of two counts of aggravated threatening life, the offences of aggravated cause harm and possessing a firearm without a licence - issue at trial was the identity of the offender - prosecution relied on circumstantial evidence, including DNA evidence, to establish that it was the defendant who committed the offences - whether risk that the DNA evidence was impermissibly relied upon by the jury - whether DNA evidence impermissibly dealt with in prosecution address - whether Judge erred in treatment and explanation of the DNA evidence in summing up - whether a reasonable hypothesis consistent with innocence not excluded by prosecution - whether defendant denied a fair trial.

Held: Appeal against conviction dismissed - despite imperfections and irregularities in the manner in which the prosecution and the Judge described and directed about the DNA evidence, these were not of such a nature as to give rise to any risk of a miscarriage of justice - jury would have been left in no doubt that the DNA evidence was not proof of guilty, but merely an item of circumstantial evidence - no reasonable hypothesis consistent with innocence open - evidence linking the defendant with the offences was overwhelming - verdicts not unsafe or satisfactory - open to jury to be satisfied beyond reasonable doubt that defendant guilty of the offences charged.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - defendant sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment for all offending of seven years and six months - a non-parole period of five years was fixed - whether the head sentence and non-parole period manifestly excessive.

Held: Appeal against sentence dismissed - sentence imposed not manifestly excessive - sentence within the discretion of the Judge - the offending was very serious - the sentence was proportionate to the offending.

Criminal Law Consolidation Act 1935 (SA) s 19, s 24 and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(1b), s 11(1)(a)(iv) and s 18A, referred to.
R v Karger (2002) 83 SASR 135; R v Nguyen [2010] HCA 38; Skinner v The King (1913) 16 CLR 336; R v Becker (2005) 91 SASR 498; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Horstmann [2010] SASC 103; R v Carpentieri (2001) 81 SASR 164; R v Malesevic (1999) 204 LSJS 32; R v Noll [1999] 3 VR 704; R v JCG (2001) 127 A Crim R 493; R v Doheny and Adams [1997] 1 Cr App R 369; R v Keir (2002) 127 A Crim R 198; R v Milat (1996) 87 A Crim R 446; R v Duke (1979) 22 SASR 46; R v Wakefield [2004] NSWCCA 288; R v Buckskin [2010] SASC 138, considered.

R v MARTICANAJ
[2010] SASCFC 82

Court of Criminal Appeal         Gray, White and Kourakis JJ

GRAY J.

1. This is an appeal against conviction and sentence.

2. The defendant and appellant, Nikolin Marticanaj, was found guilty by jury verdict of two counts of aggravated threatening life.  The offences were aggravated through the use of a firearm.  The defendant was also found guilty of the offences of aggravated cause harm and possessing a firearm without a licence.

   The Facts

3. The offending related to an incident that occurred at about 9.20pm on Thursday 17 April 2008.  The victims were a driver, B, and his passenger, A.  They were travelling east on Stanley Street, Woodville.  B swerved his vehicle to avoid a white Toyota Camry reversing from the driveway at number 17 Stanley Street.  B continued until he stopped nearby on Harvey Street to allow his passenger, A, to leave the vehicle to go to his parents’ home.  A left the vehicle and was saying goodbye when a white Toyota Camry pulled up beside them.

4. The prosecution case was that the white Toyota Camry that pulled up on Harvey Street was the same vehicle that B had almost collided with shortly before.  It was the prosecution case that the defendant was the driver of the white Toyota Camry.  The defendant left the white Toyota Camry and threatened the victims with a loaded Dan Wesson .357 Magnum double action revolver by pointing the revolver at each of them. 

5. A ducked down behind the car and then ran to his parent’s home.  The defendant approached B, who was still in the driver’s seat, pressing the revolver hard against his head so that contact was made between the barrel and B’s forehead.  The defendant grabbed B’s shirt, pulling him from the vehicle and towards the defendant’s vehicle saying “you come with me”.  At the time of the offending the revolver was loaded with bullets, including one in the chamber.

6. B thought he was going to die.  He lashed out and kicked and punched the defendant.  In the ensuing struggle the defendant struck B to the head and nose with the revolver, fracturing his nose.  As the defendant struck B the second time the revolver dropped to the ground.  B picked up the revolver and the defendant ran away, leaving the white Toyota Camry behind.  B, in a state of confusion and terror, took the revolver with him and drove away in his vehicle.  Shortly thereafter he telephoned the police.  While driving in the area he saw the defendant return to the white Toyota Camry and drive away.  The police advised him not to follow the vehicle and to instead return home.  He did so.  The police later came to his home and took possession of the revolver.

7. The alleged conduct of the defendant during this incident gave rise to the two counts of aggravated threatening life.  The charge of aggravated causing harm related to the assault on B.  The charge of possessing a firearm without a licence related to the revolver used in the offending.

   Appeal Against Conviction

8. The issue in the trial was the identity of the offender.  There was no challenge to the accounts given by the two victims.  Neither victim was able to identify the defendant as the offender.  It was not in dispute that all the crimes had been committed.  The prosecution relied on circumstantial evidence, including DNA evidence, to establish that it was the defendant who had committed the crimes. 

9. In the course of the trial the prosecution led DNA evidence said to link the defendant with the crimes.  There was no challenge to the evidence of the forensic scientist as to the DNA analysis.  However, there was a substantial challenge to the evidentiary trail and its integrity.  The jury were invited by the defence to find that there had been a real risk of contamination.

10. At trial senior defence counsel, subject to the dispute concerning the integrity of the material examined, did not challenge the opinions expressed by the forensic scientist.  No objection was taken to submissions made by the prosecutor in his final address as to the use that the jury might make of the DNA evidence.  Defence counsel accepted the adequacy of the trial Judge’s summing up on the topic of the DNA evidence. 

11. Notwithstanding this course of events, on appeal counsel for the defendant, not counsel appearing at trial, contended that the opinion evidence of the forensic scientist was flawed and that the prosecutor and the Judge had erred in their observations about the DNA evidence.  It was suggested that both made what has been described as “the prosecutor’s fallacy”.

12. I have reached the conclusion that there were some imperfections in the manner in which the prosecutor and the Judge described the DNA evidence.  However, in my view these imperfections are not of such a nature as to give rise to any risk of a miscarriage of justice.  Accordingly, I have reached the conclusion that the appeal against conviction should be dismissed.  My reasons follow.

    The Respective Cases

13. As noted above, it was not in dispute that each of the alleged offences had been committed.  The dispute at trial was whether the prosecution had proved beyond reasonable doubt that the defendant was the offender.  The description of the offender provided by the victims was of a general nature.  That evidence was supported by what the prosecution asserted was an overwhelming circumstantial case.  Part of that circumstantial case was said to be inferences to be drawn from DNA evidence. 

14. The following is a summary of the circumstantial evidence relied upon by the prosecution:

    -the passenger, A, identified number 17 Stanley Street to the police as the address from which the white Toyota Camry had reversed.  B also identified the address but there was some suggestion that he had been informed of the particular house number by the police before making his formal statement.  Seventeen Stanley Street, Woodville was the residential address of the defendant.

    -neither victim was able to make an observation of the licence plate of the white Toyota Camry.  However, both clearly identified that it was a white Toyota Camry on both Stanley and Harvey Streets. The defendant was the registered owner of a white Toyota Camry.

    -a Nokia mobile telephone was located by the mother of A on the road near where the incident had occurred shortly after the offender was seen leaving in his white Toyota Camry.  It was the prosecution case that this Nokia telephone belonged to the defendant. 

    -at the defendant’s home, the police located an LG brand mobile telephone.  That telephone contained a list of contacts including the number of the mobile telephone found at the scene under the name “Niko”.  Niko was the defendant’s nickname.  The call log on the LG mobile telephone indicated that a number of calls had been made to the Nokia mobile telephone found at the scene.  The LG mobile telephone contained a number of pictures of children of a similar appearance to the defendant’s children.  A SIM card pack found by the police at the defendant’s residence was for the same mobile telephone number as the Nokia mobile telephone found at the scene. 

    -a DNA profile located by forensics on the Nokia mobile telephone provided a match to the DNA profile of the defendant.

    -the Dan Wesson .357 Magnum double action revolver used by the offender had the capacity to hold six bullets.  At the time it was seized by the police it was loaded with five bullets.  A later search by the police of the defendant’s white Toyota Camry led to the discovery of a single bullet.  This bullet was of the same type and calibre as the type of bullets located in the Dan Wesson revolver seized by the police. 

    -immediately after the incident both victims made a report to the police.  Shortly thereafter the police attended in the area and pulled over a white Toyota Camry being driven by the defendant.  The driver was identified by his driver’s licence, which displayed his residential address as 17 Stanley Street, Woodville.  It followed on the prosecution case that the defendant was in the vicinity of the incident in his vehicle at a relevant time and thus had the opportunity to commit the offences.

    -both victims gave evidence that the defendant was speaking another language when he left his vehicle with the revolver in hand.  B described it as a middle eastern language and A as simply another language.  There was evidence before the jury that the defendant did not speak English as his first language.  The defendant made use of an Albanian interpreter throughout the trial.

    -clothing worn by the defendant on the night of the offending was seized by police.  Forensic analysis revealed bloodlike stains on the defendant’s jumper and trousers.  These stains were analysed and revealed a DNA profile that matched the DNA profile of the driver, B.

15. It was the defence case that at the very least a reasonable doubt arose as to whether the defendant was the offender.  It was contended that the prosecution had not excluded a reasonable hypothesis consistent with innocence – namely that the offender was the defendant’s father-in-law.  The defendant did not give or call evidence at the trial. 

    The DNA Evidence

16. In opening, the prosecutor addressed the DNA evidence proposed to be led.  As to the DNA on the mobile telephone the prosecutor said, “They also subject the phone to DNA analysis and they find DNA evidence the prosecution says links the phone to the accused man”.  As to the clothing of the defendant the prosecutor when opening said, “there’s a blood speck which is found on his jumper, on his left cuff, and also another speck which is found on his pants.  The blood specks contain the DNA of the victim in this case…”.

17. Following the prosecution opening, defence counsel made a short statement to the jury.  In the course of this statement the issue before the jury was described as being one of identification.  No reference was made at all to DNA evidence.

18. A forensic scientist was called by the prosecution.  She was an employee of the Forensic Science Centre of South Australia.  She held a Bachelor Degree of Science and a graduate Diploma in Genetic counselling.  She had worked for 15 years in the genetics department of a public hospital where her duties included DNA analysis.  She had been working for three years at the Forensic Science Centre undertaking DNA interpretation.  There was no challenge by the defence to her qualifications and it was accepted that she had the necessary expertise to assist the Court with expert testimony on the topic of DNA. 

19. The forensic scientist explained DNA to the jury including the process of obtaining DNA for the purposes of analysis.  She recounted how she had received material for analysis and had assumed the integrity of the process by which that material had reached the Forensic Science Centre. 

20. The forensic scientist gave evidence with respect to the DNA analysis concerning the mobile telephone.  She explained that the DNA profile taken from the mobile telephone was a mixture originally from at least two people.  She described that DNA sample as having a major and a minor component.  She expressed the following opinion:

    That the major component of the DNA profile obtained from 445/23, the swab from the phone, matches the referenced DNA profile of the defendant, Marticanaj.  And, again, there were two alternate hypothesis considered in the evidence: that Marticanaj is the major source of the DNA, or the major source of the DNA is an unknown unrelated who by chance has the same DNA as Marticanaj. The major component of the DNA profile obtained from the swab of the mobile phone is approximately 24 million times more likely to match the DNA profile of Marticanaj if he is the major source of the DNA rather than an unknown, unrelated male. In other words, the chance of finding another male unrelated to Marticanaj with the same DNA profile is expected to be approximately one in 24 million.

    Next, the forensic scientist addressed the DNA on the left cuff of the defendant’s jumper and expressed the following opinion:

    The findings were that it was a mixed DNA profile with at least two contributors. The major component of that mixed DNA profile matched [B]. And the likelihood ratio for that - sorry, excuse me - and that the two alternative possibilities were as I stated before, and that the DNA profile was greater than a billion times more likely to match the DNA profile of [B] if he is the source of the DNA rather than an unknown, unrelated male.

    The forensic scientist gave evidence with respect to the bloodlike stain on the defendant’s trousers and expressed the following opinion:

    That a complete DNA profile matching the profile of [B] was obtained and the profile was greater than a billion times more likely to match the DNA profile of [B] if he was the source rather than an unknown, unrelated male.

    In cross-examination there was no challenge to any of the above opinion evidence. 

21. Defence counsel sought to lay a basis for a challenge to the integrity of the process of the obtaining of the samples and also of the possibility of contamination within the Forensic Science Centre.  Subject to those matters there was no challenge to the forensic evidence as to the DNA match, the significance of the match and the opinions expressed by the forensic scientist.

22. During his final address prosecution counsel reminded the jury that the prosecution case was a circumstantial case.  He suggested to the jury that when they looked at all of the circumstances in the case, they could only draw one reasonable conclusion; that is, that it was the defendant who was in the white Toyota Camry and who committed the offences.  The prosecutor addressed the jury about each item of circumstantial evidence and the inferences that were said to arise from the evidence.  In doing so, he referred to the DNA evidence. 

23. As to the DNA on the mobile telephone the prosecutor said, having discussed the other circumstantial evidence about the telephone, “But there’s more.  You then have the DNA evidence.  So the accused’s DNA is found on the phone and at the scene”.  When the prosecutor discussed the clothes that the defendant was wearing that night he said: “Members of the jury, perhaps the most telling evidence of all is the fact that [B’s] blood is found on the accused’s clothes” and then a little later, “Back to the blood; you heard the DNA evidence, blood was found on the accused’s left cuff and also the back right of his pants.  And it was tested and it was found to be [B’s] blood.  As I say, members of the jury, it is telling evidence that the person who assaulted [B] and made him bleed from the nose and also from the side of the head was, in fact, the accused person”.

24. In addressing the possibility that the defence may point “the finger at the father-in-law” the prosecutor added, “But even if the finger is pointed at the father-in-law because he has the same car, a white Camry, does that really explain why the accused has [B’s] blood on him?  Does it explain why the blood with his DNA is found at the scene?  And does it explain why a bullet is found in his car?”

25. The prosecutor concluded his address with the following remark:

    So, in conclusion, members of the jury, this case really comes down to whether you are satisfied that it was the accused who was there that night that was involved in this incident and you have heard what you may consider to be overwhelming evidence which will prove that it was the accused who was the person who was there that night beyond reasonable doubt and, therefore, is guilty of each of these offences.

26. In my view, the prosecutor when referring to the DNA evidence, was identifying the factual conclusion that he was inviting the jury to draw from that evidence.  I do not consider that the prosecutor was bound to refer to the evidence in the precise terms used by the forensic scientist.  It was the prosecution case that the expert evidence of the forensic scientist allowed the jury to reach the factual conclusions as advanced by the prosecutor.  With respect to each DNA analysis it was the prosecution case that that analysis provided strong circumstantial evidence that would allow the particular finding contended for.  To put it another way, the acceptance of the evidence of the forensic scientist and the statistical expression of her opinion would then allow the jury to conclude from that circumstantial evidence that the victim B’s blood was on the defendant’s clothing.

1. This Court in Karger,[1] discussed the approach to be taken when summing up to a jury about DNA evidence.  In particular Doyle CJ observed:[2]

   Clearly enough, that evidence must be used with care. For the purposes of expressing the likelihood ratio, two factual hypotheses are compared. One is the prosecution hypothesis that the appellant was the source of the bloodstain and of the incriminating DNA. The other hypothesis is the defence hypothesis that an unrelated person is the source of the bloodstain and of the incriminating DNA. The statistical evidence calculates the probability of the occurrence, in either case, of the match found between the incriminating DNA and that of the appellant, and expresses the competing probabilities as a ratio.

   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. However, 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. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA, but 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.

   It is necessary for the jury to appreciate these points if they are to make proper use of the statistical evidence.

   It is also necessary to avoid the so-called prosecutor's fallacy, if the evidence is to be properly used. Reasoning in the form of that fallacy involves, as I understand it, both the error just identified and an approach which would treat the statistical evidence as proof of guilt, rather than as evidence from which a conclusion on a matter which might in turn point to guilt could be reached.

   [1]    R v Karger (2002) 83 SASR 135.

   [2]    R v Karger (2002) 83 SASR 135 at [15]-[18].

2. The Judge, in the course of his summing up, gave a detailed and conventional direction as to the nature of circumstantial evidence.  The Judge then informed the jury that he would discuss each item of circumstantial evidence.  The Judge then proceeded to do so.  During that process the Judge, where relevant, referred to the DNA evidence. 

3. On the topic of the mobile telephone, having discussed the various aspects of the circumstantial evidence concerning the telephone, the Judge concluded by saying:

   Then there was the evidence of … the person from forensic science, who told you that the mobile phone found in Harvey Street, the swab taken from that by Constable Goodwin had a mixed DNA profile on it, the major component was from the accused and that the probability of it coming from him as compared to coming from another unknown, unrelated male was greater than 1 in 24 million.

   Although this summary did not precisely follow the evidence of the forensic scientist it did set out the effect of that evidence and in particular the final sentence of the expert’s opinion:

   In other words, the chance of finding another male unrelated to [the defendant] with the same DNA profile is expected to be approximately one in 24 million.

   The Judge then addressed the defence submission:

   When you consider that evidence, you will take into account [counsel for the defendant’s] criticisms in the way in which this evidence has been put before you. I will go into the provenance of this evidence in a little more detail in a moment, but there were criticisms about the fact that exhibits were given certain numbers by the police, and different numbers by forensic science. There is no explanation of why the numbers were different. There is evidence that the police put these items of evidence in bags and kept them in police property, the PPMS, Police Property Management System. There was no evidence about where this stuff is kept, how much security is involved, who looks after it, etc. There is evidence that Zetter then took these exhibits out of property and sent them to forensic science. The items that were seized and also the swabs. That was criticism that [counsel for the defendant] made and it is quite valid criticism, there is no such evidence on those matters. It is a matter for you to consider what weight, if any, you place on this evidence, whether you put the DNA evidence about the phone, for example, into the overall circumstantial rope. If you think it has no value because of these reasons then you will disregard it.

   These observations fairly summarised the defence submission and in particular identified the proper use of the DNA evidence as circumstantial evidence.

4. When discussing the evidence of the bloodlike stains on the defendant’s clothing the Judge observed:

   … that cutting was then subject to DNA analysis and that the blood from that stain matched that of [B] with a likelihood that it was him rather than an unknown unrelated male of greater than 1 in 1 billion.

   …

   The same situation with the grey jumper, it was in a sealed paper bag, according to [the forensic scientist], when it arrived at forensic science, …. It had been submitted by Zetter on 3 June 2009. It had a bloodlike stain on the left cuff of the jumper. When analysed it produced a mixed profile of at least two contributors. The major contributor was [B], again with a probability that it was him rather than an unknown, [un]related male of greater than 1 in 1 billion.

   Again the Judge did not follow the precise language of the expert.  The Judge’s summary did not, in the words of Doyle CJ from Karger, contrast the two statistical probabilities.

5. The Judge discussed with the jury how they might use this evidence and relevantly and pertinently observed:

   Members of the jury, as I said, these were clothes that were worn by the accused when he was arrested, and which he wore during the record of interview, and which he handed to police at the conclusion of the record of interview. The question that you might consider when considering whether this is a strand for the rope, has the prosecution established that it was [B’s] blood on the accused’s clothing, on his grey jumper and on his pants, at the time that those items of clothing were seized by the police? The numbers don’t match, there is no evidence of who looked after these exhibits in the meantime, so it is a question of are you prepared to draw the inference that the prosecution ask you to draw, that that is [B’s] blood and that that blood got there during the altercation on Harvey Street that evening? It is a matter for you to consider that inference and the strength of it when you come to consider this item.

   In this direction the Judge correctly identified the proper use of the DNA evidence as an item of circumstantial evidence.  Again the Judge drew the jury’s attention to an inference that they might wish to draw.

6. The Judge concluded his summing up with the following observation:

   Members of the jury, just to summarise and possibly to repeat myself, and hopefully it will [be] the last time I do that, the process of reasoning to be adopted from what has been put before you by the prosecution is as follows: consider what facts you accept have been established before you. Consider what inferences you are prepared to draw in a consideration of all of the facts in combination together. Consider whether guilt is, not only a rational inference, but it is the only rational inference which is available on the evidence. That last point put another way, whether the prosecution has excluded all inferences consistent with innocence beyond reasonable doubt. If any such inference consistent with innocence remains after you have undergone that process, it has not been excluded beyond reasonable doubt, and the prosecution has not proved its case, then the verdict is not guilty.

7. Having concluded his summing up the Judge invited counsel to indicate whether there were any matters that he had misstated or omitted.  None of the matters raised on appeal were the subject of any comment by defence counsel.

8. On appeal counsel for the defendant described the expert forensic evidence as perfunctory to the point that it was said to be left in “an indivisible form” as the basis for the opinions was not set out.  It was further asserted that the evidence was unhelpful and misleading.  In this latter regard it was complained that the evidence did not explain the meaning of a “match” or the “frequency of a match”.  It was claimed that the expert gave no guidance as to how the statistical evidence should be interpreted.  It was contended that the jury were not assisted about how the DNA evidence could be used with other evidence.

9. It is to be accepted that the forensic evidence was not as detailed as it may have been.  It might be inferred that the explanation for this state of affairs was the approach taken by the defence.  The defendant was represented by senior criminal counsel.  It may be inferred that a decision was made to attack the integrity of the evidence gathering process rather than to launch any direct attack on the analysis and the expert conclusions of the forensic scientist. 

10. There was no suggestion at trial or on appeal that there was any basis to attack or undermine the forensic opinion evidence.  Defence counsel at trial may well have taken the view that the less said about those aspects of the matter the better.  Any cross-examination or any review of that material during closing submissions would only heighten the statistical analysis.  As earlier observed, there was no challenge at all to the DNA analysis or the opinion evidence led by the forensic scientist.  Counsel on the appeal took a different and entirely inconsistent position to that taken by the defence at trial.

11. Counsel for the defendant on the appeal asserted that the prosecutor had misled the jury about the evidence of the forensic scientist.  In effect counsel submitted that the prosecutor was obliged to address the jury in the precise terms used by the forensic scientist.  In my view a prosecutor would be entitled to follow this course.  However, a prosecutor is also entitled to invite the jury to consider the forensic evidence, as an item of circumstantial evidence, as justifying a particular factual conclusion.  This latter course may well be adopted by the prosecution when there has been no challenge at all to the DNA analysis and the opinion evidence with respect to that analysis.  That is the position at this trial and it, in my view, may well explain the course taken by the prosecution.  On the prosecution case the victim B’s blood was found on the defendant’s clothing.  It was said that this was the conclusion in fact that the jury would draw from the DNA evidence.

12. In the course of the summing up the Judge, in recounting the forensic scientist’s evidence, did not refer to each and every aspect of that evidence.  A Judge in summing up may choose to discuss the DNA evidence in more detail.  It is to be borne in mind in this case that there was no issue as to the DNA analysis or the opinion evidence.  By the time of the summing up the Judge had heard the prosecutor’s final address and in particular had noted the defence address and the lack of any comment at all in regard to the significance of the DNA evidence.  This circumstance may have encouraged the Judge to approach the DNA evidence in the way that he did.  At times during the Judge’s remarks he spoke of the DNA profile being from the accused or that it was the victim’s blood. 

13. The Judge did not provide an explanation in the terms set out by Doyle CJ in Karger.[3]  He did not in words postulate a comparison of the two hypotheses.  It is to be accepted that there may be some imperfections in this mode of expression. 

    [3]    R v Karger (2002) 83 SASR 135 at [15]-[18].

14. The critical question is whether the Judge’s mode of expression may have led the jury to treat the DNA evidence as proof of guilt rather than as evidence which may allow a conclusion on a matter which might in turn point to guilt.  However, on each occasion that the Judge made such a remark he accompanied the observation with a reference to the statistical analysis.  I do not consider that in the circumstances of this trial the summing up would have misled the jury as to the weight that they might choose to attach to the DNA evidence.

15. The Judge in his earlier extracted directions about circumstantial evidence provided appropriate guidance as to its use.  The jury would have been left in no doubt that the DNA evidence was not proof of guilt, but rather was circumstantial evidence which, if accepted, could allow a conclusion on a matter which might, with other circumstantial evidence, point to guilt.

    A Reasonable Hypothesis Consistent with Innocence

16. As earlier mentioned, at trial and on appeal the defendant suggested that there was a reasonable hypothesis consistent with innocence that had not been excluded by the prosecution.  That reasonable hypothesis was said to arise from remarks made by the defendant when interviewed by the police.  The record of interview was tendered by the prosecution as part of its case.  In that record there was a suggestion that the defendant’s father-in-law had been at 17 Stanley Street on the night of the offending, that he too drove a white Toyota Camry and that he had left the Stanley Street residence at some time that evening.  It was contended that the prosecution had failed to exclude beyond reasonable doubt this reasonable hypothesis.  In my view the possibility that the defendant’s father-in-law may have been the offender was no more than mere speculation.  I do not consider that a reasonable hypothesis consistent with innocence arose from these circumstances.  The defendant’s out of court statement, although evidence in the trial, was vague and untested.  The circumstantial evidence referred to above linking the defendant to the crime scene, leaving aside the DNA evidence, was in my view overwhelming. 

    A Fair Trial

17. On the appeal it was complained that the defendant had in all the circumstances, and in particular as a consequence of the approach taken to the DNA evidence, been denied a fair trial.  This complaint relied on the cumulative effect of the suggested misdirections with respect to the DNA evidence.  It was asserted that the jury would have been diverted from “undertaking its task properly”.  This in substance amounted to a submission that the verdicts were unjust or unsafe.

18. In Nguyen,[4] the High Court reaffirmed the approach of an appeal court to such a complaint:

    [4]    R v Nguyen [2010] HCA 38.

    The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence"[5] was described by this Court in M.[6] As four members of the Court pointed out[7] in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact.

    [5]    Crimes Act 1958 (Vic), section 568.

    [6]    M (1994) 181 CLR 487.

    [7] (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ.

    [T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[8]

    As the plurality in M went on to point out:[9]

    But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[10]

    The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed[11] in the following terms:

    It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[12] In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[13]

    [8]    M v The Queen (1994) 181 CLR 487 at 493 (footnote omitted).

    [9] (1994) 181 CLR 487 at 493.

    [10]   Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 621; [1984] HCA 7.

    [11] (1994) 181 CLR 487 at 494-495.

    [12]   Chamberlain [No 2] (1984) 153 CLR 521 at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444; [1991] HCA 4.

    [13]   Chidiac (1991) 171 CLR 432 at 443, 451, 458, 461-462.

19. As discussed above there was no issue at trial as to the expert DNA evidence or the Judge’s summing up with respect to that evidence.  At trial, the complaint about the DNA evidence was restricted to the issue of contamination and a proper establishment of an evidentiary trail.  The summing up of the Judge was to be considered having regard to the issues joined in the trial.  I do not consider that there is any basis to conclude that the jury was misled about the effect of the DNA evidence or that it was diverted from “undertaking its task properly”.  This conclusion follows from my earlier discussion of the complaints with respect to the DNA evidence.

20. In my view, the analysis of the evidence at trial demonstrates that, quite apart from DNA evidence, there was a body of circumstantial evidence linking the defendant with the incident and the offending.  If accepted, the evidence other than DNA evidence was more than sufficient to allow a jury, properly directed, to reach the conclusion that the defendant was guilty of each of the offences charged.  It might be said that this body of evidence was overwhelming.

21. In my view, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty of each of the charged offences.

    Appeal Against Sentence

22. The maximum penalty for the offence of aggravated threatening life is 12 years imprisonment.[14]  The maximum penalty for the offence of aggravated causing harm is 13 years imprisonment[15] and the maximum penalty for the firearm offence is imprisonment for seven years.

    [14] Section 19 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:

    (1)A person who—

    (a)threatens, without lawful excuse, to kill or endanger the life of another; and

    (b)  intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,

    is guilty of an offence.

    Maximum penalty:

    (a)for a basic offence—imprisonment for 10 years;

    (b)for an aggravated offence—imprisonment for 12 years.

    [15] Section 24 of the Criminal Consolidation Act 1935 (SA) relevantly provides:

    (1)A person who causes harm to another, intending to cause harm, is guilty of an offence.

    Maximum penalty:

    (a)for a basic offence—imprisonment for 10 years;

    (b)for an aggravated offence—imprisonment for 13 years.

1. The trial Judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence for the four offences being an immediate term of imprisonment of seven years and six months. A non-parole period of five years was fixed. In arriving at the head sentence of seven years and six months the Judge commenced with a notional sentence of eight years and made a reduction of six months on account of time spent on home detention bail.

2. On appeal the defendant submitted that both the head sentence and non-parole period were manifestly excessive. 

3. In determining an appeal against sentence this Court is to follow the criteria set out in section 353(4) of the Criminal Law Consolidation Act 1935 (SA). Section 353(4) states:

   (4)Subject to subsection (5), on an appeal against sentence, the Full Court must-

   (a)if it thinks that a different sentence should have been passed –

   (i)    quash the sentence passed at the trial and substitute such other     sentence as the Court thinks ought to have been passed     (whether more or less severe); or

   (ii)quash the sentence passed at the trial and remit the matter to the     Court for trial for resentencing; or

   (b)in any other case – dismiss the appeal.

4. The discretion of the sentencing judge will not be interfered with unless it can be shown that the sentence imposed was manifestly excessive[16] or that there has been a miscarriage of justice that requires intervention by the court.[17]  The judges of an appellate court should not interfere with the sentence purely on the basis that they would have taken a different approach if in the position of the sentencing judge.  Rather, the appellate court should only interfere if it is apparent that the primary judge has failed to properly exercise the sentencing discretion.[18]  If specific error is not shown, the court may also interfere if the result embodied in the order is unreasonable or plainly unjust, that is, manifestly excessive or manifestly inadequate.[19]

   [16]   Skinner v The King (1913) 16 CLR 336 at 340.

   [17]   R v Becker (2005) 91 SASR 498 at [59]-[61], [68].

   [18]   House v The King (1936) 55 CLR 499 at 505.

   [19]   Markarian v The Queen (2005) 228 CLR 357 at [25], (Gleeson CJ, Gummow, Hayne and Callinan JJ); see also R v Horstmann [2010] SASC 103 at [16] (Gray J): When assessing whether an appeal against sentence should be allowed, identification of error is not sufficient. Even where error has occurred in the sentencing process, the sentence will not be interfered with unless it can be said to be manifestly excessive, or there has been a miscarriage of justice requiring intervention by the court.” [footnotes omitted] Cf at [36]-[38] (Kourakis J).

5. The facts of the offending are set out earlier in these reasons.

6. During the course of his sentencing remarks, the Judge observed:

   This was an extremely violent and unprovoked attack. [B] and [A] did nothing before or after the relatively minor traffic incident which would cause you to behave in such an outrageous way. This is the type of behaviour which has become known as ‘road rage’. These incidents are characterised by people reacting to a relatively minor traffic incident in a completely disproportionate way. Your offences must have been terrifying for the victims involved. The fact that they later would have become aware that the firearm was loaded and that there was a bullet in the chamber beneath the hammer of the weapon must have added to their distress. When the police examined it later they found that the gun worked correctly and could have been discharged during the scuffle with even more serious consequences.

7. B suffered physical injury including a fractured nose.  At the time of sentencing this injury required further surgery.  Both B and A had suffered psychologically as a consequence of the attack. 

8. Before coming to discuss the defendant’s antecedents the Judge remarked:

   The penalty I impose must contain a significant component of deterrence, in that you must be deterred from behaving in this way again and other people who might be minded to behave in a similar way should also be deterred by the knowledge that if they are apprehended they will face a very significant penalty. No civilised society can operate on the basis that people going about their business can be threatened by a person with a loaded firearm after such a relatively minor incident. Such behaviour cannot be tolerated.

   No reason or excuse has been put forward for your possession of the gun in the first place. A .357 magnum revolver is a particularly powerful and deadly weapon. Its purpose is as a close-range killing weapon. It has no legitimate role in hunting or other sport. For that reason, such weapons are placed in a special category under the Firearms Act and they attract the highest penalty if they are possessed without a licence. It is not possible to get a licence for such weapons except in extremely restricted circumstances.

9. The Judge had regard to the submissions put by the defendant and in particular accepted that the offending conduct was not premeditated.  The Judge further accepted counsel’s description of the conduct being an impulsive act of madness.  The Judge rejected the defence submission that the offending involved a mere act of recklessness.  The Judge concluded that the defendant’s conduct was deliberate.

10. The defendant had no prior criminal antecedents.  The defendant was born in Kosovo and was aged 41 years when sentenced.  His four brothers were killed in the 1990s as a consequence of Serbian bombing.  At that time the entire family assets were destroyed.  The defendant and his wife lived in poverty and hardship until they came to Australia in 2001.  The defendant, his wife and three children, aged 10, six and four, are Australian citizens.  His wife and children are dependent upon him.  At the time of sentencing the defendant owned a retail business.  The Judge accepted that he would lose that business if imprisoned.  The defendant’s wife suffers from depression and anxiety. 

11. The Judge addressed the need for personal deterrence, observing:

    [Counsel for the defendant] has told me that there is no likelihood of you reoffending. I have no information on which to assess that submission. You have given no explanation for your conduct, apart from it being a moment of madness. Nor have you given any explanation for your possession of such a deadly weapon in your car. Your behaviour was so violent and unpredictable here that I am not prepared to assume that personal deterrence from acting in this way again is unnecessary.

12. The Judge accepted there would be hardship to the defendant’s family if he were to be imprisoned and in that respect observed:

    [Counsel for the defendant] also referred to the hardship your family will suffer if you are imprisoned. I accept that your wife and children will suffer greatly if you are imprisoned. The law states that such a consideration is not usually relevant, particularly where deterrence is such a significant factor in sentencing and deterrence certainly is a significant factor here. In almost every case where an offender has a family, that family will suffer if the offender is imprisoned. It is only in the most exceptional cases that hardship to an offender’s family can result in a lighter sentence than is otherwise justified by the facts. In that regard I know nothing of the support your family has available to it from friends and family should you be imprisoned. I note that you were sponsored by your wife’s cousins when you first came to Australia. But having said all that I accept that your family will suffer greatly if you are imprisoned.

13. The Judge concluded:

    In all the circumstances, in my opinion the facts of this case are so serious that notwithstanding the fact that your family will suffer greatly by your imprisonment I have no alternative but to impose an immediate custodial sentence. Such outrageously violent and dangerous behaviour must be deterred and anything other than an immediate custodial sentence would be inappropriate.

    I impose one sentence pursuant to s.18A of the Sentencing Act. Although there are four separate counts on the information, it alleges a course of conduct and it would be meaningless to dissect the behaviour applicable to each count, fix a penalty for that count and then address the totality of all of those sentences.

    I start with a sentence of eight years imprisonment. In my view that is an appropriate penalty which addresses the overall criminality involved in all four counts. I take into account the period of time you spent on home detention and reduce the sentence to seven years and six months in that regard. I fix a non-parole period of five years.

    The sentence and the non-parole period will commence today.

14. The Judge had the benefit of detailed submissions from defence counsel and a psychological report and medical reports for both the defendant and his wife.  The sentencing remarks clearly indicate that such personal circumstances – including the defendant’s unfortunate history in Kosovo – were considered before the determination of sentence.

15. The Judge had regard to the defendant’s family and the fact that they were dependent upon him.  The effect of any sentence on the dependants of an offender will only have a significant effect on penalty if the effect in the particular case is out of the ordinary.[20]  As the Judge remarked when sentencing, “this was an extremely violent and unprovoked attack”, which called for a significant deterrent penalty both general and personal.  The Judge made it clear that the gravity of the offences made any other sentence inappropriate.[21]  It was inevitable that the defendant’s family would experience hardship and the Judge acknowledged that fact.[22] 

    [20]   R v Carpentieri (2001) 81 SASR 164 at 168.

    [21] Section 11(1)(a)(iv) of the Criminal Law (Sentencing) Act 1988.

    [22]   As to the general approach to the issue of hardship of dependants, see R v Buckskin [2010] SASC 138 at [35]-[48] (Nyland and Gray JJ). It was open to the Judge to find that in the circumstances of the present proceeding, the hardship was not sufficiently exceptional to impact on the penalty imposed in circumstances where the conduct amounted to such serious offending.

16. Section 10(1b) of the Criminal Law (Sentencing) Act notes that “a primary policy of the criminal law is to protect the safety of the community”.  Other than what could only be described as a very minor traffic incident, this offending occurred without provocation. 

17. The defendant used a magnum revolver throughout the offending.  The revolver was loaded.  There was a bullet in the chamber under the hammer.  The Judge noted that “the [revolver] worked correctly and could have been discharged during the scuffle with even more serious consequences.”  He further noted that such a weapon is a “particularly powerful and deadly weapon”.

18. The victims provided victim impact statements which demonstrate that the offending has profoundly affected each of them.  B said in evidence at trial that when the defendant was dragging him towards the vehicle he thought he would be taken away and feared that he might then be tortured or killed.  Rather than submit he desperately fought back, only to be struck in the face with a weapon that had the potential to discharge at any time.  As mentioned above both B and A developed psychological problems after the offending.  Both struggled to maintain their normal lives.  B required surgery to repair his fractured nose.

19. The Judge reduced the sentence on account of the time spent by the defendant on home detention bail.[23]

    [23]   R v Malesevic (1999) 204 LSJS 32 at [7].

20. In my view, the sentence imposed was within the sentencing discretion of the Judge.  The offending conduct involved the use of a revolver which as the Judge correctly described, is a weapon designed for close-range killing and is a particularly powerful deadly weapon.  It has no purpose for hunting or sport.  The offending conduct involved the threatening of two innocent victims and the placing of the barrel of the loaded revolver against the forehead of one of those victims.  Both victims were unknown to the defendant.

21. The sentence is proportionate to the offending.  The Judge appropriately considered the circumstances of the offending as balanced against the personal circumstances of the defendant.  The sentence imposed was not manifestly excessive.

    Conclusion

22. I would dismiss the appeals against conviction and sentence.

23. WHITE J.             In my opinion, the appeal against the convictions should be dismissed.

24. I agree generally with the reasons of Gray J and of Kourakis J.  In particular I am satisfied that, in the circumstances of this case, the Judge’s directions concerning the DNA evidence did not give rise to a miscarriage of justice.  I do have some reservations about the appropriateness of comparing the likelihood ratio of the competing probabilities concerning DNA with the chances of finding another person within Australia, or indeed of any other country, with a matching profile.  However, it is not necessary for the disposition of this appeal for those reservations to be discussed.

25. I also consider that the appeal against sentence should be dismissed, for the reasons given by Kourakis J.

    KOURAKIS J:

    Appeal against conviction

26. The appellant was convicted on two counts of aggravated threatening life, one count of aggravated causing harm and one count of possessing a firearm without a licence, on 1 July 2010, after a trial by jury.  The prosecution of the appellant arose out of a bizarre but nonetheless frightening incident which occurred on Harvey Street in Woodville just after 9:00 pm at night.  The occupants of a car were threatened and assaulted by an offender armed with a pistol in apparent retaliation over a minor traffic incident.

27. The case against the appellant was largely circumstantial.  One strand of that case was the matching of DNA profiles taken from blood like stains on the appellant’s clothes with the DNA profile of a victim of the offending.  Another was the matching of the DNA profile taken from a swab of a mobile phone found on the road at the scene of the offending with the DNA profile of the appellant.  The appellant complains that the Judge’s summing up of the evidence given by a forensic scientist of the improbability of the profiles taken from the items of property matching a person other than the victim and the appellant respectively was factually inaccurate.  I accept that contention but I am satisfied that the error has not resulted in a miscarriage of justice.  In particular, the improbabilities that the profiles would match a person or persons unrelated to the offender, and the victim, was so great that the jury could not have been misled about the probative value of that evidence by the Judge’s direction.  Moreover, no doubt influenced by that improbability, the appellant’s counsel made a strategic decision to attempt to explain the DNA analysis results by suggesting that there may have been cross contaminations of the relevant items.  The appellant’s counsel emphasised the paucity of evidence of the way in which the items of real evidence collected by the police had been managed.  He argued that the appellant’s clothing may have been contaminated by other property containing the victim’s blood and that, conversely, the mobile phone may have been contaminated by contact with property taken from the appellant.  The misdirection did not affect that central issue on which the charges were contested.  In the context of that forensic contest the inaccurate summary of the forensic scientist’s opinion has not caused a miscarriage of justice.

28. I explain my reasons further below.

    The offence

29. Shortly before the offence, Mr B was driving his friend Mr A to the house of Mr A’s parents when a white Camry reversed out of a driveway in Stanley Street, Woodville, almost causing a collision.  A little later Mr B stopped his Commodore in nearby Harvey Street outside the house of Mr A’s parents.  As Mr A was saying goodbye a white Camry pulled up alongside Mr B’s car.  The driver alighted, pointed a pistol at both Mr A and Mr B, and spoke angrily in a foreign language.  Mr A ran into his parents’ house from where he called the police.  The offender ordered Mr B out of his car and put the gun to the side of his head.  Mr B fought the offender off but in the course of the struggle Mr B was struck on his head, and on his nose, which bled profusely.  Eventually the offender ran away down Harvey Street.  Mr B returned to his car and, at about 9:28 pm, he also called police on the 000 number.  Whilst in his car Mr B watched the offender return to the Camry and drive away.

    Incriminating circumstances

30. Some time shortly after 9:21 pm police patrols were alerted to look out for a white Camry.  A little later Constable Heinz saw a Camry turn into Woodville Road from Stanley Street.  The car was followed for about 500 metres along Woodville Road, over Port Road, and eventually on to Findon Road.  The police stopped the car and searched it.  The appellant was the driver; his name and licence details were recorded at about 9:38 pm.  There were some similarities between the appearance of the appellant and the descriptions given by Mr A and Mr B of the offender but subsequently neither of them were able to correctly identify the appellant from a photo array.  It was an agreed fact that the Camry was searched by Constable Weaver between 9:30 and 9:40 pm whilst Constable Heinz and Constable Kotch spoke to the driver.  It was also an agreed fact that Constable Weaver found no signs of violence and no weapons.

31. Police officers attended the scene of the offences in Harvey Street.  They spoke to Mr A.  After they had left, Mr A’s sister went into the front yard of the house to have a cigarette.  From there she noticed something on the road and picked it up.  It was a mobile phone.  She later handed the mobile phone to uniformed police.  The police ascertained that the subscriber number of the mobile telephone was 0405 921 939.  Police later discovered that the same subscriber number was recorded in the internal phone directory of the appellant’s wife’s phone under the name “Nikol”.  The appellant’s first name is Nikolin.

32. Later that night, whilst being driven down Stanley Street by police, Mr A identified the appellant’s home as the house from which the Camry had driven onto Stanley Street.  A white Camry was seen in the garage.

33. Very late that night Detective Walker, with others, executed a search warrant on the appellant’s Stanley Street home.  The appellant’s first language is a European language and he had the assistance of an interpreter when speaking to police.  Detective Walker found a sim card set up kit for the mobile phone number 0405 921 939 in the house.  Another Detective, Detective Zetter ordered a subscriber search for that sim card and learnt that the subscriber was a Lisa Zeini of 24 Ridgley Grove.  Further enquiries revealed that a person of that name was not known on any police database and that there was no such address.

34. When interviewed by Detective Zetter the appellant denied that he owned a mobile phone.  The appellant informed the police that his father-in-law was known as Niko and that he owned a white Camry.  That information was later verified by Detective Zetter.  It is convenient to observe now that the relationship between the appellant and his father-in-law is not of course, one of consanguinity.

    DNA profiles

35. Mr B gave evidence that after the attack he bled profusely and was covered in blood.  An experienced crime scene investigator gave evidence that he collected blood samples from the road in front of the Harvey Street home where the confrontation occurred.  He also gave evidence that he swabbed some blood from the firearm and obtained a contact DNA swab from the mobile phone.  In cross examination the crime scene investigator testified that the roadway samples looked like blood, but agreed that he did not test the samples for the presence of blood.  The samples were delivered to the Forensic Science Centre.

1. After he had interviewed the appellant, Detective Zetter took possession of a jumper and trousers which the appellant was wearing.  The clothing was stored by police and later delivered to the Forensic Science Centre for testing.  In answer to a question in cross examination, Detective Zetter testified that the staining on the clothes was blood.

2. The forensic scientist, Ms Fietz, gave unchallenged evidence that it was the general practice of the Forensic Science Centre to conduct a presumptive test for blood before subjecting material from stains to the DNA process.  Ms Fietz was not asked whether the particular samples collected from the road were in fact tested for blood; nor was it put to her that the staining on the clothing was not blood.  Indeed, she was cross examined about the possibility that blood was transferred from one object collected by police to another.

3. Ms Fietz gave the following evidence about the process of matching DNA profiles obtained from different sources:

   We then look at 10 different locations on the DNA.  So one of those locations is what's called the sexing location, so it will tell us if the DNA is from a male or a female.  Then the other nine locations we look at are actually areas that are variable amongst people so they're a little bit different amongst everybody.  So when we look at one particular location, we look to see the size of the DNA at that location.  And so we assign a number to that site.  So a certain person might have at a particular location a size of an 11, so that's 11 repeats of DNA.  So we call that 11 allele.  And then they might have another number.  And so what we're doing is actually looking at each of those locations and each of the sizes at that location to be able to then compare that sample to a sample in the scene.

4. It is the size or repetition pattern at each of the selected locations which is referred to as the DNA profile.  A difference between the profiles of deposited material and of a particular person necessarily excludes that person as a depositor.  However that is not the only way in which DNA profiling can be probative of a fact in issue.  Ms Fietz explained that it was possible to estimate the relative probability that an analysis of DNA from a person chosen randomly from the Australian community would reveal a profile which was the same as the profile discovered from a particular source.  The probabilities are calculated on the basis of a database of DNA profiles which has been assembled from a small population sample.  The statistical computation from that database can also be probative of a fact in issue.[24]  Ms Fietz was not challenged about the reliability of the extrapolation from the database generally, or in the particular cases of the profiles of Mr B and the appellant, given their ethnic or other genetic characteristics.

   [24]   R v Noll [1999] 3 VR 704 at 708-9; R v JCG (2001) 127 A Crim R 493 at [48] – [49].

5. Ms Fietz was asked about her comparison of the DNA profile obtained from the swab of the mobile phone with the database.  She answered:

   The major component of the DNA profile obtained from the swab of the mobile phone is approximately 24 million times more likely to match the DNA profile of Marticanaj if he is the major source of the DNA rather than an unknown, unrelated male.  In other words, the chance of finding another male unrelated to Marticanaj with the same DNA profile is expected to be approximately one in 24 million.  (emphasis added)

6. Ms Fietz was also asked about the comparison she had made of the DNA profile of a blood like stain found on the firearm.  She answered:

   The DNA profile obtained from the swab of the firearm matches the reference DNA profile of [B].  And the two alternative possibilities have been considered in the interpretation of this evidence.  Firstly that [B] is the source of the DNA.  But secondly, the source of the DNA is actually an unknown male who by chance has the same DNA profile as [B].  The DNA profile obtained from the swab is greater than 1 billion times more likely to match the DNA profile of [B] if he is the source, rather than the DNA of an unknown unrelated male.  So, in other words, the chance of finding another male unrelated to [B] with the same DNA profile is expected to be rarer than one in a billion.  (emphasis added)

7. Ms Fietz was then asked about a comparison of a DNA profile obtained from blood like stains from the left cuff of the appellant’s grey jumper.  She answered:

   The findings were that it was a mixed DNA profile with at least two contributors.  The major component of that mixed DNA profile matched [B].  And the likelihood ratio for that - sorry, excuse me - and that the two alternative possibilities were as I stated before, and that the DNA profile was greater than a billion times more likely to match the DNA profile of [B] if he is the source of the DNA rather than an unknown, unrelated male.

8. Ms Fietz gave a similar answer with respect to staining on the right leg of the appellant’s trousers.  She said:

   That a complete DNA profile matching the profile of [B] was obtained and the profile was greater than a billion times more likely to match the DNA profile of [B] if he was the source rather than an unknown, unrelated male.

9. I find Ms Fietz’s primary formulation of the relative probability which was derived from the database a little obscure.  I mean no criticism of Ms Fietz in expressing that view; Ms Fietz’s opinion was expressed in what I will refer to as the standard formulation of such evidence.  Forensic scientists regularly express their statistical opinions based on DNA profile comparisons in that way.  The standard formulation was referred to and discussed in R v Karger.[25]  The standard formulation contains the premise: “if he is the source”.  A failure to appreciate that the computation of the relative possibility assumes that the known person who shares the profile with the swabbed material was the depositor can result in error.[26]

   [25] (2002) 83 SASR 135 at 140-1, [13] – [18].

   [26]   A. Ligertwood, 'Avoiding Bayes in DNA cases', (2003) 77 Australian Law Journal 317 at 320.

10. The prosecutor’s fallacy occurs when the premise on which the standard formulation stands, “if he was the source” is overlooked.  The prosecutor’s fallacy equates the possibility of finding another person with the same profile with the possibility that someone else deposited the material, and ultimately with the possibility of innocence.  The statistical evidence based on the DNA database shows the likelihood, or more commonly, lack of it, of there being, in addition to the identified possible depositor, another unknown, unrelated person with a matching DNA profile.  It does not demonstrate the likelihood that the known person was the source of the DNA; it assumes it.  The expected frequency of the identified profile is evidence that the known person is the depositor but many other evidential considerations may also affect the ultimate probability of that fact.  Even the slimmest possibility of finding another matching DNA profile will count for little in the face of unimpeachable evidence of alibi.

11. To say that the DNA profile obtained from biological material is X times more likely to match, in the sense of being identical to, the DNA profile of the person who deposited it, than another unknown unrelated male, is in a sense to state the obvious.  Given the accepted hypothesis that DNA is constant in biological material taken from the same person, it can be said that the DNA profile of two samples of biological material taken from the same person, leaving aside testing error, will always be identical.  The probability that they will be identical, leaving aside testing error is, in that sense, 100 per cent.  However, the critical part of the standard formulation is its statement of the relative possibility of the DNA profile, which is shared by the swabbed material and a known person, also matching the DNA profile of another unknown and unrelated person.  It is of course physiologically possible that there might be such a match, with another unknown person, because even though DNA is, apart from identical twins, unique, two unrelated persons might exhibit the same profile at the locations tested even though their respective DNA sequences will vary at other, probably many other, locations.  It is that possibility which is expressed, in the case of Mr B’s profile, to be “one in a billion”.  Given the certainty to which I have just referred that the profile of the deposited material will match the profile of the person who deposited it, it can then be said that it is a billion times more likely that the profile of blood deposited by Mr B will match Mr B’s profile than the profile of an unrelated person selected randomly from the Australian community.

12. In this case the alleles comprising the profiles in the deposited material were attributable to single sources of DNA.  In such cases the simpler alternative formulations which I have italicised appearing in Ms Fietz’s answers reproduced in [88] and [89] above, namely, “the chance of finding another male unrelated to Marticanaj with the same DNA profile is expected to be approximately one in 24 million”, and “the chance of finding another male unrelated to [B] with the same DNA profile is expected to be rarer than one in a billion” are easier to understand and apply.  That alternative formulation reduces the risk of accepting the “prosecutors fallacy”.[27]

    [27]   R v Doheny and Adams [1997] 1 Cr App R 369 at 372-3; R v Keir (2002) 127 A Crim R 198 at 202-3; R v JCG (2001) 127 A Crim R 493 at [79] – [86].

13. The expected frequency in the Australian population of persons who share the same profile as the deposited material, and the person with whom it has been matched, can be used by a jury together with, and in the same way as other items of circumstantial evidence in the case.  Juries are often required to consider the possibility that a person, other than the accused, but with similar identifying characteristics, may have committed the offence charged.  In cases involving similarities as diverse as scars to cauliflower ears, and tattoos to hairstyles, juries are left to assess for themselves the relative frequency of identifying characteristics and whether, in all the circumstances, a reasonable possibility consistent with innocence remains.[28]

    [28]   R v JCG (2001) 127 A Crim R 493 at [86]; A Ligertwood, 'Avoiding Bayes in DNA cases', (2003) 77 Australian Law Journal 317 at 324-5.

14. In cases where, notwithstanding the matching of DNA profiles, the possibility that an unrelated person with the same profile deposited the material is raised by the accused, or otherwise arises as a real possibility on the evidence, it may be necessary to warn juries about the limits of statistical evidence of this nature.[29]  Many jurors are unlikely to have a working knowledge of statistics and probability ratios.  There is a danger that they may “be overawed by the scientific garb in which the evidence is presented and will attach greater weight to it than it is capable of bearing”.[30]  However, for the reasons which follow, that is not the case here.  The weight of statistical evidence was overwhelming.  Leaving aside the issue of contamination, it is difficult to conceive how it could be given more weight than it was capable of bearing.  A closer consideration of it in the summing up could only have served to emphasise its great probative weight.

    [29]   R v Milat (1996) 87 A Crim R 446 at 452; R v JCG (2001) 127 A Crim R 493 at [55] – [56].

    [30]   R v Duke (1979) 22 SASR 46 at 48.

15. The full significance, as items of circumstantial evidence, of the frequencies given by Ms Fietz, emerges when it is appreciated that the Australian population is less than 24 million.  It follows that one could expect, in a population the size of Australia’s, to find only one unrelated person with a DNA profile which matched the profile of Mr Marticanaj and the DNA profile of the swab taken off the mobile phone.  That is not to say that if every person in Australia were tested, several, or more, people with that profile might not be discovered.  Such statistical variations may of course occur.  Statistically rare events frequently occur if the sample is large enough.  Notwithstanding the extremely low probability of any one individual winning a national lottery, a number of people do every week.  However, just as one would only expect a number six to be rolled once in six consecutive rolls of a die, so too one would only expect one unrelated Australian resident to exhibit a DNA profile which was the same as Mr Marticanaj.

16. In the case of the DNA profile obtained from the blood stains on the clothing of Mr Marticanaj, even if Australia’s population was about the size of China’s, one would not expect more than about one or two persons with a DNA profile which matched the profile of Mr B.

17. It can immediately be appreciated that, assuming there has been no contamination of the samples tested, the case against Mr Marticanaj is an overwhelming one.  The combined improbability that someone with a DNA profile which matched that of Mr Marticanaj, left the telephone at the scene of the offending against Mr B and Mr A, and that, independently, a person other than Mr B, but with the same DNA profile, bled on the appellant’s clothing, does not leave much room for a hypothesis consistent with innocence.  Together with the other evidence, including the appellant residing near the location, the identification of his house as the house from which the Camry exited, his ownership of a Camry and the discovery of the sim card set up kit for the mobile phone in his house, the case that the appellant, and not his father in law, was the driver was overwhelming.

    The prosecutor’s address

18. The appellant complains that there has been a miscarriage of justice because the prosecutor in his address treated the evidence of Ms Fietz as establishing that the appellant was the source of the DNA material on the phone and that Mr B was the source of the blood on the appellant’s clothes.  In my view the jury would have understood that the prosecutor was urging on them a factual conclusion based on that evidence.  The prosecutor had more than a sound evidential basis on which to make that submission.  There was no miscarriage of justice on this ground.

    Summing up

19. The Judge gave the following directions with respect to the evidence of Ms Fietz:

    Then there was the evidence of Ms Fietz, the person from forensic science, who told you that the mobile phone found in Harvey Street, the swab taken from that by Constable Goodwin had a mixed DNA profile on it, the major component was from the accused and that the probability of it coming from his as compared to coming from another unknown, unrelated male was greater than 1 in 24 million.  …

    [Ms Fietz] said there was a bloodlike stain on the leg of the cord trousers, that a person called Sharon Wilczeh had taken a cutting from that bloodlike stain and that that cutting was then subject to DNA analysis and that the blood from that stain matched that of [Mr B] with a likelihood that it was him rather than an unknown unrelated male of greater than 1 in 1 billion.  …

    The same situation with the grey jumper, it was in a sealed paper bag, according to Ms Fietz, when it arrived at forensic science, p 285.  It had been submitted by Zetter on 3 June 2009.  It had a bloodlike stain on the left cuff of the jumper.  When analysed it produced a mixed profile of at least two contributors.  The major contributor was [Mr B], again with a probability that it was him rather than an unknown, unrelated male of greater than 1 in 1 billion.  …

    Ms Fietz told you the blood on the gun was [Mr B’s] blood, or at least the probability that it was someone else’s – put it another way, the probability that it was [Mr B’s] rather than someone else’s is greater than one in a billion.

20. Before identifying and discussing certain factual inaccuracies in those passages, I wish to emphasise that the probability ratios given by Ms Feitz were not challenged by the appellant’s counsel.  The appellant’s counsel, in the course of the trial, told the Judge that the defence case on the issue of the DNA was:

    The important question from the jury has got to be can they exclude the DNA contamination, deliberate or innocent, given the failure of the prosecution to link up the evidence.

21. I also record that the appellant’s counsel did not ask the Judge to make any correction to those passages.

22. The first of the passages I have set out, refers to Ms Fietz’s evidence about the DNA profile obtained from the mobile phone.  I accept that it is factually inaccurate.  It was not Ms Fietz’s evidence that “the major component was from the accused”.  Her evidence was simply that the DNA profile obtained from the swab of the mobile phone “matched” that of the accused.  That “match” does not, as I earlier observed, mean that it was necessarily the appellant who was the source of the DNA material.  However, the accompanying reference to the relative probability of the DNA material coming from the appellant rather than another unknown male would have reminded the jury that Ms Fietz’s evidence was that the profile of the sample matched the appellant and that the order of probability that an unknown unrelated male would have the same DNA profile as Mr Marticanaj was one in 24 million.  The relative possibility was actually expressed by the Judge in a way which was unduly favourable to the appellant.

23. Arguably, the error known as the prosecutor’s fallacy was also made in that passage.[31]  It was not the probability that biological material on the mobile phone came from someone other than the appellant which was as low as one in 24 million, rather, it was the possibility that another unknown male would have the same DNA profile as the appellant, and the material on the phone, that was in the order of one in 24 million.  The relative possibility of one in 24 million was calculated, as Ms Fietz explained, on the hypothesis that the appellant “is the major source”.  The Judge did not remind the jury of that premise.

    [31]   Cf R v JCG (2001) 127 A Crim R 493 at [35], [36], [87].

24. In the second passage, the Judge said that the evidence of Ms Fietz was that “the blood from the [clothing] stain matched” that of Mr B.  Of course it was only the profile from the testing at the selected locations which matched the profile of Mr B’s DNA, tested at the same locations.  The Judge again referred to a likelihood ratio, albeit stated as the inverse of Ms Fietz’s evidence, as the likelihood that it was Mr B’s blood:  the relevant probability ratio deposed to by Ms Fietz related to the same DNA profile being found in another unrelated male in the Australian population.  I also accept that the Judge’s formulation again omitted to mention the premise, that Mr B was the source, on which Ms Fietz had calculated the relative probabilities.  It was the possibility that an unknown person, unrelated to Mr B, would exhibit the same DNA profile which was in the order of one in one billion. The expression of the relative probability arising from the match to Mr B’s profile was again the inverse of Ms Fietz’s evidence and was therefore favourable to the appellant.

25. With respect to the jumper stain, the Judge again stated as a positive conclusion that the major contributor to that stain was Mr B.  I am satisfied that the jury can only have understood that statement in the context of the accompanying reference to relative probability.  Again, the probabilities were stated in a way favourable to the appellant.

26. Finally, with respect to the gun, although the Judge initially stated Ms Fietz’s conclusion in terms of the blood on the gun being Mr B’s, he immediately corrected it and stated Ms Fietz’s conclusion in terms of probability, which, however, was again misstated in a way favourable to the appellant.  In any event, there was no controversy about the blood on the gun coming from Mr B.

1. In my opinion, the jury would not have understood the summing up of the Judge to state that Ms Fietz’s evidence identified the source of the DNA as a matter of certainty.  Notwithstanding the infelicitous way in which the Judge expressed Ms Fietz’s conclusion, the jury would have remembered, and understood, that her opinion was expressed in terms of relative possibilities arising from the expected frequency of the identified profiles.  The jury is likely to have understood the Judge’s formulation as a shorthand reference to Ms Fietz’s evidence.

2. The way in which the Judge summarised Ms Fietz’s opinion is, in my view, unfortunately encouraged by the abstruseness of the standard formulation to which I referred in [92] above.[32]

   [32]   cf. A Ligertwood, 'Avoiding Bayes in DNA cases', (2003) 77 Australian Law Journal 317 at 320.

3. In the circumstance of this case, and given the orders of magnitude involved, no miscarriage of justice was caused by the factual errors made by the Judge in summarising Ms Fietz’s evidence.  Leaving aside for now the question of contamination, with which I deal in the following paragraph, the relative probabilities of unknown unrelated persons having the same DNA profiles as those found on the mobile phone and the clothes respectively amplified the improbabilities on which the prosecution relied to prove guilt.  In conjunction with the other incriminating circumstances, the way in which the Judge expressed the probability ratios could not have denied the appellant any prospect of acquittal fairly open to him.  The evidence of Ms Fietz and the totality of the circumstantial case ineluctably led to the verdict returned.

4. As to the question of contamination, the criticism of the chain of evidence with respect to those samples was fairly put to the jury.  The Judge said:

   When you consider that evidence, you will take into account Mr Edwardson’s criticisms in the way in which this evidence has been put before you.  I will go into the provenance of this evidence in a little more detail in a moment, but there were criticisms about the fact that the exhibits were given certain numbers by the police, and different numbers by forensic science.  There is no explanation of why the numbers were different.  There is evidence that the police put these items of evidence in bags and kept them in police property, the PPMS, Police Property Management System.  There was no evidence about where this stuff is kept, how much security is involved, who looks after it, etc.  There is evidence that Zetter then took these exhibits out of property and sent them to forensic science.  The items that were seized and also the swabs.  That was the criticism that Mr Edwardson made and it is quite valid criticism, there is no such evidence on those matters.  It is a matter for you to consider what weight, if any, you place on this evidence, whether you put the DNA evidence about the phone, for example, into the overall circumstantial rope.  If you think it has no value because of these reasons then you will disregard it.

5. The remarks of Smart AJ in R v Wakefield,[33] a case in which the course of the trial and the appeal share marked similarities with this matter, are apposite:

   [64]The appellant's contentions do not sufficiently take into account a number of factors.  The experienced counsel who appeared for the appellant at the trial fought the Crown case on the basis that the Crown could not exclude contamination of the DNA material on the handkerchief, that is, the material could have got there by reason of the handkerchief coming into contact with objects having the appellant's DNA on them.  This could have happened in the lift, when the handkerchief was placed in the plastic bag by Mr Randall and remained there, or in the police Station while the exhibits were being sorted and placed in Exhibits bags.

   [65]Counsel for the appellant at the trial must have thought (and justifiably so) that there was little point in insisting on what the cases say is the correct approach to the DNA evidence.  In the present case there was some telescoping with the evidence, or what might be described as ‘short cuts’.  The rarity of the DNA profile of the accused led to this.  It would be sound forensically to take the view that with the rarity of the appellant's profile, a matching profile being found on the handkerchief and the appellant's presence in the area and the other circumstances a jury would inevitably draw the conclusion that the appellant was the robber.  In practical terms in the present case the approach propounded by the appellant's counsel, which is strictly correct, would have made no difference.  The result was inevitable.

   [66]Counsel for the appellant at the trial fought the Crown case on the only sensible basis which was available.  By doing so neither he nor his client lost any credibility.

   [67] As foreshadowed in Doheny & Adams as the art of analysis of DNA progresses DNA evidence is likely to become more significant.  The experience in New South Wales is that the art of analysis has developed and that includes statistical development.  The Courts are repeatedly seeing cases where DNA profiles are taken which are rare. Mr Goetz' evidence quoted earlier emphasises this point. Nevertheless, as the art of analysis is developing, precision and accuracy of expression as to DNA profiles are highly desirable.  …  Some of the distinctions are quite fine.[34]

   [33] [2004] NSWCCA 288.

   [34]   R v Wakefield [2004] NSWCCA 288 at [64] – [67].

6. I would dismiss the appeal against conviction.

   Appeal against sentence

7. The maximum penalty for each of the two counts of aggravated threatening life on which the appellant was convicted is 12 years imprisonment.  The maximum penalty for aggravated causing harm with intent, of which he was also convicted, is 13 years imprisonment.  Finally, the maximum penalty applicable on his conviction for possession of a Class H firearm without a licence is imprisonment for seven years or a fine of not more than $35,000.

8. The Judge imposed a single sentence of seven years and six months on all four counts.  The Judge had selected a starting point of eight years, but that was reduced for time spent on home detention.  The non parole period was fixed at five years.

9. The appellant’s offending arose out of a single but terrifying and dangerous episode.  It is difficult to accept the appellant’s characterisation of the offending as “an impulsive act of madness”.  The possession of the hand gun was unlawful.  The appellant must have had it in his possession for some time before the offending and he is likely to have known that it was unlawful to possess it.  The firearm was loaded at the time that Mr B and Mr A were threatened.  The possession of the firearm while loaded and in a car driven on a suburban street is serious in itself.  Standing alone it warranted more than a brief term of imprisonment.  The sentence on this count, being offending which preceded the episode in Harvey Street would, to some extent, have been made cumulative on the other sentences, if it had been separately imposed.

10. There are few ways in which the life of another can be more directly, obviously, and distressingly threatened than by pointing a handgun at him or her, at close quarters, in the course of a heated dispute.  The offences of threaten harm were therefore serious examples of their kind.  The sentences imposed were required to bear a relationship to the maximum penalty of 12 years imprisonment which was proportionate to their relative seriousness.  The terms of imprisonment for each of those counts, if sentenced separately, would necessarily be substantial, even though they would be imposed, as between themselves, concurrently.

11. The actual use of the gun to strike Mr B was in itself a serious assault.  To engage in such an assault with a loaded firearm is fraught with the risk that it might discharge in the course of the struggle and is therefore more serious again.  The assault must necessarily increase the length of the proper term of imprisonment for this episode, above that which would have been imposed for the offences of threaten life if they had stood alone; the sentence would, if imposed separately, have been made partially concurrent with the sentences imposed for threatening life.

12. The appellant has suffered much poverty, hardship and tragedy in the course of his life.  His four brothers and his parents were killed in the bombing of their village in Kosovo in 1998.  The extent and effect of that tragedy on the appellant can hardly be imagined let alone overstated.  However, it is insufficient to outweigh the need for both specific and general deterrence, which the facts of this offending demands.  The imprisonment of the appellant will undoubtedly cause hardship for his wife and his three children.  However, the evidence does not disclose that that hardship is of an order which would allow a reduction from what otherwise appears to be an appropriate sentence.[35]

    [35]   R v Buckskin [2010] SASC 138 at [104] – [110].

13. Having regard to the general approach I have outlined to fixing the appropriate overall sentence, it is apparent to me that the sentence imposed by the Judge must incorporate terms of imprisonment for the offences of threaten life which are significantly longer than many of the sentences recently imposed in the District Court for that offence.  However, in my view that difference is commensurate with the greater gravity of the appellant’s offending.  His offending involved a real and loaded gun and was much more than a rash resort to threatening words and gestures in the course of an argument between persons in a strained relationship.  Even though I recognise that the sentence is a relatively heavy one, I am not persuaded that it is manifestly excessive.

14. I would dismiss the appeal against sentence.