R v Pfennig - [2017] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v PFENNIG
[2017] SASCFC 26
Judgment of The Honourable Justice Blue
11 April 2017
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Application for permission to appeal against conviction.
The applicant was convicted after a trial by Judge alone of the murder of Louise Bell in 1983. He seeks permission to appeal against the conviction on the ground that the verdict is unreasonable or incapable of being supported having regard to the evidence. There are two separate limbs to the proposed ground of appeal:
1. The evidence was not capable of proving beyond reasonable doubt that the applicant’s DNA was present on Louise Bell's pyjama top.
2. There was no evidence adduced by the prosecution capable of excluding as a reasonable possibility the innocent transfer of the applicant’s DNA to Louise Bell's pyjama top.
Held:
1. The first limb of the proposed ground of appeal is not reasonably arguable ([at 116]).
2. The second limb raises a question of general importance, justifying the grant of permission to appeal. ([at 131]).
3. Permission to appeal granted ([at 132]).
Criminal Law Consolidation Act s 353, referred to.
Fitzgerald v R (2014) 88 ALJR 779; R v B, FG (2012) 114 SASR 170; R v Doheny and Adams [1997] 1 Crim App R 369; R v Hallcroft (2016) 126 SASR 415, discussed.
R v Milton [2009] SASC 44; R v Parenzee (2007) 101 SASR 456; R v Tran & Tran [2011] SASCFC 153; R v Wymond [2013] SASCFC 12, considered.

R v PFENNIG
[2017] SASCFC 26
Application for permission to appeal

BLUE J: This is an application for permission to appeal against conviction.
The applicant, Dieter Pfennig, was convicted after a trial by Judge alone of the murder of Louise Bell in 1983.[1] He seeks permission to appeal against the conviction on the ground that the verdict is unreasonable or incapable of being supported having regard to the evidence.[2]
[1] R v Pfennig (No 2) [2016] SASC 171.
[2] The ground is erroneously expressed as “The verdict is unsatisfactory and unreasonable and against the weight of the evidence”. Although this error is unfortunately not uncommon in the drafting of grounds of appeal, this wording does not accord with section 353 of the Criminal Law Consolidation Act 1935 (SA) which refers to the ground that the verdict is “unreasonable or cannot be supported having regard to the evidence”. Neither of the other two grounds referred to in that section, namely “a wrong decision on any question of law” and “on any ground there was a miscarriage of justice”, is invoked.
There are two separate limbs to the proposed ground of appeal, namely:
1.the evidence was not capable of proving beyond reasonable doubt that the applicant’s DNA was present on the victim’s pyjama top;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pfennig

Details

AGLC: R v Pfennig [2017] SASCFC 26
Case: [2017] SASCFC 26
Decision Date: 11 April 2017

CaseChat Overview and Summary

This case concerned an appeal against a conviction for murder, where the central plank of the prosecution's circumstantial case was DNA evidence. The applicant argued that if the DNA evidence were disregarded, the remaining circumstantial evidence was insufficient to prove guilt beyond a reasonable doubt. The appeal was heard by Blue J.

The legal issues before the court included whether the DNA evidence, specifically concerning its analysis and interpretation, was sufficiently reliable to prove guilt beyond reasonable doubt. A further issue was whether the possibility of innocent secondary transfer of the applicant's DNA to the victim's pyjama top had been adequately excluded by the prosecution's evidence. The court also considered the relevance of likelihood ratios in DNA analysis and whether the scientific evidence could preclude innocent transfer under various factual scenarios.

Blue J reasoned that it was open to the trial judge to accept the results of the DNA testing, both NFI and FSSA, in relation to the tapelift and fluff samples as proved beyond reasonable doubt. The judge found that the circumstantial evidence, when considered alongside the DNA evidence, confirmed the conclusion that the applicant's DNA was on the pyjama top, and this was proved beyond reasonable doubt. The court referenced *R v Doheny and Adams* to highlight that the significance of DNA evidence is critically dependent on other known facts about the suspect, such as their proximity to the crime scene. Regarding the secondary transfer argument, the court considered the particulars raised by the applicant, including the prosecution's evidence of possible factual scenarios for transfer and the inability of scientific evidence to preclude such transfer.

The court concluded that the first limb of the proposed ground of appeal, concerning the sufficiency of the evidence without the DNA, was not reasonably arguable. Permission to appeal was not granted on this basis. The court's decision on the second limb, concerning innocent secondary transfer, is not fully detailed in the provided text, but it appears to have been considered in conjunction with the overall evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The DNA evidence formed a major plank in the prosecution’s circumstantial case. The prosecution accepted that, if the DNA evidence were left aside, the remaining circumstantial evidence was incapable by itself of proving beyond reasonable doubt that the applicant was the murderer. BackgroundGeneral narrative As at January 1983 the Bell family had for some years been living in Meadow Way at Hackham West. Louise Bell completed grade 1 at Morphett Vale Primary School at the end of 1978 and moved (together with all other students) to Hackham West Primary School at the beginning of 1979. She completed grade 5 at the end of 1982.[4][4] Evidence of Colin Bell T29/26-29. As at January 1983 the Pfennig family had for some years been living in Holly Rise at Hackham West. This was within a short walking distance from the Bell family house in Meadow Way. The applicant was born in Germany and spoke with a slight German accent.[5] The applicant had difficulty sleeping and was accustomed to go walking or jogging late at night.[6] Petra Pfennig completed reception at Morphett Vale Primary School in 1978 and moved to Hackham West Primary School at the beginning of 1979. Halfway through 1979, she moved from grade 1 into grade 2. She completed grade 5 at the end of 1982.[7][5] Evidence of Sandra Pfennig (nee Warren) T476/38 and477/16 and Anthony Van Der Stelt (SAPOL) T1335/28.[6] Evidence of Sandra Pfennig T487/23-26. [7] Evidence of Petra Pfennig T513/36-37. In 1980 Louise Bell and Petra Pfennig were in the same class in grade 3.[8] [8] Evidence of Petra Pfennig TT513/38 and 514/1. At least a year before Louise Bell disappeared, Angelina Richards saw the applicant walking from the Hackham West Primary School towards home together with Petra Pfennig and Louise Bell on at least six occasions over a three to six-month period.[9][9] Evidence of Angelina Richards T313/23-32, 314/5-7 and 315/19-26. In 1982 Louise Bell and Petra Pfennig were both in grade 5 but were in different classes.[10] They were in the same school basketball team.[11] They had weekly practices and weekly matches between February and November 1982.[12] They both attended a barbecue pool party at the coach’s house in November 1982 to celebrate the end of the basketball season.[13] They both went on a school trip to Mount Gambier towards the end of 1982. Neither had a sleepover at the other’s house.[14][10] Evidence of Priscilla Grace T158/37.[11] Evidence of Petra Pfennig T515/25-26 and Patricia Murrell T186/37-38 and190/22-24.[12] Evidence of Petra Pfennig T516/12-18 and Ms Murrell T190/18 and191/7–14.[13] Evidence of Petra Pfennig T516/30-38 and Ms Murrell T193/26-33.[14] Evidence of Mr Bell T31/7-10 and Petra Pfennig T520/28-32. Louise Bell was given a pair of pyjamas by her parents as a Christmas present at Christmas in 1982.[15] She wore the top but not the bottom as it was too tight.[16][15] Evidence of Mr Bell T52/32-35. A statement by Mrs Bell was tendered suggesting that the pyjamas had been passed on to Louise Bell by her younger sister but the Judge preferred the evidence of Mr Bell and this finding is not challenged on appeal.[16] Evidence of Mr Bell T52/26-31.

Evidence

Evidence Before The Court

Ordinarily the consideration given by a single Judge to the question whether permission should be granted, refused or referred to the Full Court will be constrained compared to the extent of the consideration given by the Full Court to the question whether the ground or grounds of appeal are established. However, in some cases a more extensive consideration by a single Judge will be appropriate. In R v B, FG,[77] Kourakis CJ said:My reasons are necessarily long because of the sheer volume of the evidence adduced at trial and the very many grounds of appeal. Permission to appeal is granted only in those cases in which an arguable case is demonstrated. It should not be thought that permission will be given simply because the grounds are many and the case is factually complex. Volume is not necessarily an indication of merit.[78][77] [2012] SASC 157, (2012) 114 SASR 170.[78] At [4].Expert evidence about DNA adduced at trial The prosecution adduced expert evidence from eight DNA experts at trial:·Mr Blankers and Dr Kokshoorn who gave evidence focusing on the NFI analysis of the DNA samples and on LRmix Studio;·Susan Vintiner of the Institute of Environmental Science & Research (ESR) in New Zealand who gave evidence focusing on her independent review of the NFI analysis of the DNA samples;·Ms Mitchell who gave evidence focusing on the FSSA analysis of the DNA samples;·Professor Adrian Linacre of Flinders University who gave evidence focusing on analysis of low template DNA samples;·Dr Taylor of FSSA and Dr Buckleton of ESR who gave evidence focusing on likelihood ratios and STRmix;·Professor Gill of the University of Oslo and the Norwegian Institute of Public Health who gave evidence focusing on analysis of low template DNA samples, likelihood ratios and STRmix. The evidence of each expert DNA witness was admitted without objection. The applicant did not call any expert DNA evidence and relied on cross-examination of the witnesses called by the prosecution. The Judge summarised the explanation given by the witnesses about DNA profiling in the following non-controversial terms:It is now well established that DNA (deoxyribonucleic acid) is a long molecule which governs a person’s characteristics. In the human genome (the whole of a person’s DNA), there are something like three billion sites called loci which contain information. Each locus has two pieces of information called alleles. Each allele is contributed by the person’s father or mother. Each allele contains a repeated four-part sequence. It is the number of times the four‑part sequence repeats itself that indicates the size of an allele. That size is given a number representing the number of repeats. The size of a father’s or mother’s allele may be different or may be the same. It is the size of the allele as indicated by the four-part sequence of repeats that allows DNA to discriminate between people. Ignoring identical twins, a person’s genome is believed to be unique. Nevertheless, the alleles at the vast majority of loci in a human being are the same size.In DNA profiling, a small number of loci are compared between samples. Those chosen for comparison are regarded as the few which are highly discriminating between individuals. The DNA scientist, at each locus, compares the size of the alleles as explained above. By comparing two samples in this way, the scientist is able to see whether the profiles match. If they do not match, one can be excluded as coming from the other. If they do match it does not necessarily mean that both samples come from the same person because this will only be a minor sample of the whole genome. It means that one sample cannot be excluded as coming from the other. At that stage, the strength of the DNA evidence is dependent upon statistics and approved mathematical systems. Depending upon what system is used, a “weighting” is given to each comparison.…The first step in the process was the extraction of DNA by automation... …The next stage of the process was to determine how much DNA was in the sample extracted. This process is known as “quantitation”...…The next stage was what is known as polymerase chain reaction amplification. The scientist targets a particular region of the DNA and copies those particular regions over and over again so that they can detect what DNA is in that sample at those particular regions. …FSSA in carrying out PCR uses a kit called the “Profiler Plus kit”. This kit targets 10 loci which are considered to be hypervariable between people, allowing for a greater discrimination.[79] The information at those loci is copied over and over again and each time a copy is made it is labelled with a fluorescent tag. … [79] As explained below, the NFI used Next Generation Multiplex which targeted 16 loci and FSSA now uses GlobalFiler which targets 24 loci.…The next stage … was, after the DNA has been copied, to detect what DNA is present at each locus. The detection stage is done by a process called “capillary electrophoresis”. Capillary electrophoresis detects the fluorescent tags added during the previous PCR process. ... Using known standards, the speed at which the DNA passes through the detection window can be converted to a number representing the size of the DNA. The size of that piece of DNA is then represented by a number.At the next stage, the raw data that is detected is input into software called “Genemapper”. Genemapper takes the raw data and compares it to known standards called an “allelic ladder”. The allelic ladder designates a particular allele number to DNA fragments dependent upon their size. The software generates a graphical representation of the DNA detected, which is known as an “electropherogram”. … ... It is important at this stage to mention the evidence that was led, undisputed, comparing the development of programs used to interpret DNA profiles. The method now commonly used is known as the “probabilistic software program”, of which STRmix is an example. This is to be contrasted with the binary interpretation system. The binary interpretation system … requires scientists to interpret an electropherogram and determine whether it was possible or impossible for a particular explanation to give rise to the evidence profile. Explanations that are deemed possible were all given a probability of one, whereas explanations that are deemed impossible are given a probability of zero. If a scientist is able to rule out all the explanations but one, then the profile can be interpreted. Once a profile could be interpreted, a statistical weighting could be calculated for the result... The binary method is to be contrasted with probabilistic models of interpretation which use likelihood ratios. It is undisputed that a likelihood ratio is a general statistical principle. It is the weighting of evidence in any investigation considering two propositions. With DNA analysis, the likelihood ratio is the statistical weighting of the DNA evidence given two competing hypotheses. The first is that an individual is a contributor to a DNA profile (the prosecution hypothesis) and the second is that the individual is not a contributor (the defence hypothesis). The likelihood ratio is the probability of the evidence given the prosecution hypothesis over the probability of the evidence given the defence hypothesis. …STRmix is a continuous model in interpreting a DNA profile by use of a complicated formula utilising more information in the DNA profile than before. The difference between a continuous model and a semi-continuous model is that peak heights are used as part of the information, in particular to differentiate between true and false contributors to a mixture.The Judge’s reasons for verdict

Decision

Reasons for decision

Considering the applicant’s contentions collectively, it was open to the Judge on the evidence to accept that the results of the FSSA testing in relation to the Tapelift and Fluff DNA were proved beyond reasonable doubt. It is not reasonably arguable otherwise.Conclusion concerning NFI and FSSA results Considering the applicant’s contentions collectively in respect of the NFI and FSSA testing combined, it was open to the Judge on the evidence to accept that the results of the NFI and FSSA testing in relation to the Tapelift and Fluff were proved beyond reasonable doubt. It is not reasonably arguable otherwise. It was open to the Judge on the evidence to accept that the results of the NFI testing in relation to the Tapelift proved beyond reasonable doubt that the applicant’s DNA was on the pyjama top. It is not reasonably arguable otherwise. The Judge was entitled to take into account all of the circumstantial evidence summarised at [5] above in finding it proved beyond reasonable doubt that the applicant’s DNA was on the pyjama top. Thus, in R v Doheny and Adams,[105] Phillips LJ, Jowitt and Keene JJ said:The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt.[106][105] [1997] 1 Crim App R 369.[106] At 373. The additional circumstantial evidence confirmed the conclusion based on the NFI testing that it was proved beyond reasonable doubt that the applicant’s DNA was on the pyjama top. The first limb of the proposed ground of appeal is not reasonably arguable. I would not grant permission to appeal by reason of the first limb.Second limb: possibility of innocent secondary transfer The second limb of the proposed ground of appeal is that there was no evidence adduced by the prosecution capable of excluding as a reasonable possibility the innocent transfer of the applicant’s DNA to the victim’s pyjama top. There are four particulars:1.The prosecution adduced evidence of possible factual scenarios when transfer could have occurred.2.The scientific evidence could not preclude transfer of the cells or the material in those circumstances.3.The likelihood ratio obtained with respect to the answer to question 1 is irrelevant in relation to how and when DNA is deposited and how long it remains.4.There was evidence adduced that: 4.1 there were two unknown depositors of DNA upon a tapelift of the pyjama top (see P162); and4.2 there was no other DNA said to link the applicant to the crime scene or the pyjama top.Expert scientific evidence could not preclude transfer

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.