R v Smith No. Sccrm-01-159

[2002] SASC 394

R  v  SMITH
[2002] SASC 394

Court of Criminal Appeal:  Doyle CJ, Mullighan and Besanko JJ

1. DOYLE CJ:            This is an appeal against conviction on charges of rape and robbery with violence.

2. The only ground of appeal is as follows:

   “Whenever statistical evidence in the form of a likelihood ratio or match probability has been tendered for the purpose of establishing (by inference) that the accused was the perpetrator of the crime, the trial judge must, as a matter of law, direct the jury as to exactly what the statistical evidence does, and does not, tend to prove.”

3. That statement of the ground of appeal is taken from the reasons of this Court in R v Smith [2001] SASC 103 at [26]. The grounds of appeal contain some further brief particulars outlining the content of the warning that it is suggested must be given, but not indicating in exhaustive terms the content of that warning.

4. In this case the prosecution case stood or fell on the analysis of DNA material recovered from fluid found on the clothing of the victim. Statistical evidence of the kind referred to in the grounds of appeal was relied on by the prosecution.

5. The appellant sought leave to appeal on other grounds. They were, in effect, that in the particular circumstances of the case the judge should have given a warning of the kind called for by the grounds of appeal, although the other grounds ranged over other matters as well. The Court of Criminal Appeal refused leave to appeal on these grounds in the decision to which I just referred, R v Smith.

6. Mr Wells QC, counsel for the appellant, accepts that the judgment of this Court in R v Karger [2002] SASC 294 rejects the submission that a warning of the kind sought is required as a matter of law in a case like this. He accepts that while that decision stands, and if the Court follows it, the Court must reject the submission that he would now advance.

7. Mr Wells submitted that a court of five judges should be convened to reconsider the decision in Karger. The decision is a recent one, having been delivered as recently as 30 August this year. In my view no good reason to reconsider it was advanced. The submissions which Mr Wells put in support of the argument that it should be reconsidered appear to me in substance to be the same submissions as he put to the Court in Karger. In particular, no decisions since Karger, of significance to the issues before us, were brought to our attention.

8. For those reasons, in my opinion it would not be appropriate for this Court to reconsider the decision in Karger. Saying that is not to deny the proposition put by Mr Wells that the issue he wishes to argue is difficult, but the issue has been settled for the purposes of this State by the decision in Karger and there are good reasons for the Court adhering to that decision unless something of significance arises which causes the Court to reconsider it. For those reasons I would not be prepared to refer the matter to a court of five.

9. That being so, it follows in my opinion that the appeal must be dismissed. As the Court indicated to Mr Wells, in the circumstances there was nothing to be gained by him elaborating the argument in support of the appeal which is contained in his comprehensive written outline. That argument, as he acknowledges, has already been rejected by this Court in Karger. For those reasons I would dismiss the appeal.

10. MULLIGHAN J:    I agree.

11. BESANKO J:         I also agree.

12. DOYLE CJ:            The order of the Court is that the appeal be dismissed.