Talay v R

[2010] NSWCCA 308

New South Wales
Court of Criminal Appeal

CITATION:	Talay v R [2010] NSWCCA 308
HEARING DATE(S):	1 November 2010
JUDGMENT DATE:	16 December 2010
JUDGMENT OF:	Simpson J at 1; Schmidt J at 59; Howie AJ at 60
DECISION:	The application for extension of time be refused.
CATCHWORDS:	CRIMINAL LAW – application for extension of time – delay largely unexplained – application refused - CRIMINAL LAW – appeal by stated case – appeal to District Court from Local Court – prosecution for offence of break, enter and steal – appeal dismissed, conviction and sentence confirmed – request to submit question of law – prosecuting authority not notified of request – adequacy of formulation of questions of law in stated case – stated case defective
LEGISLATION CITED:	Criminal Appeal Act 1912 Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	City of Hawthorn v Victorian Welfare Association [1970] VR 205 Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 DPP v Cassell (1995) 80 A Crim R 160 Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58 Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780 Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 R v GK [2001] NSWCCA 413; 53 NSWLR 317 R v Madden (1996) 85 A Crim R 367 R v Milat (1996) 87 A Crim R 446 R v Rigby [1956] HCA 38; 100 CLR 146 Re Van der Lubbe (1949) 49 SR 309 Thomas v The King [1937] HCA 83; 59 CLR 279 Zukerman v Law Society of New South Wales (1986) 5 NSWLR 292
PARTIES:	Wayne Christopher Talay (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2009/59113
COUNSEL:	R Button SC/K Edwards (Applicant) D Arnott SC (Respondent)
SOLICITORS:	The Law Practice (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/59113
LOWER COURT JUDICIAL OFFICER:	Nield ADCJ
LOWER COURT DATE OF DECISION:	1 April 2010

2009/59113

SIMPSON J
SCHMIDT J
HOWIE AJ

16 December 2010

Wayne Christopher TALAY v R

Judgment

1 SIMPSON J: These proceedings come before this Court as a question of law submitted for determination by a judge of the District Court pursuant to s 5B(2) of the Criminal Appeal Act 1912. This is the process commonly known as a stated case. I will deal below with the intricacies of this procedure.

2 In the first instance, however, as the application was filed significantly out of time (by 90 days) it is necessary for the applicant to seek an extension. Some, but incomplete, explanation has been provided. The proceedings in respect of which the question of law is said to arise were completed, by delivery of judgment, on 1 April 2010. The hearing of the proceedings, which were an appeal to the District Court in its criminal jurisdiction against a conviction by a magistrate in the Local Court, had taken place on 25 March 2010. By s 5B(2) of the Criminal Appeal Act, the question of law is to be submitted within 28 days of the completion of the appeal proceedings (unless an extension of time is granted) – 29 April. The question was in fact submitted on 25 June.

3 In an affidavit sworn on 27 April, in support of an application for extension of time, the solicitor for the applicant deposed that he had, on 25 March, ordered a transcript of the proceedings of that day. He deposed that he was advised that the transcript would not be finalised until 30 April.

4 There being no further evidence, it may reasonably be assumed that the transcript was in fact received on, or very shortly after, that day. That leaves a period from 30 April or 3 May (30 April having been a Friday) in which the delay is unexplained.

5 In my opinion, having regard to the serious difficulties in the procedure adopted in the submission of the questions, and in the formulation of the stated case (with which I deal below) an extension of time ought to be refused. In reaching that view, I have also had regard to the merits of the applicant’s argument.

6 Before moving to the substance of the proceedings, I make the observation that the process that initiated the submission of the question of law was fundamentally flawed.

7 Section 5B(1) and (2) of the Criminal Appeal Act provide as follows:

“ 5B Case stated from District Court
(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.
(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.”

8 It is necessary now to refer to some history.

9 In March 2010 Wayne Christopher Talay was a party (the appellant) to proceedings in the criminal and special jurisdiction of the District Court. He appealed against his conviction in the Local Court on a charge that, on 31 January 2009, he broke and entered a shop and therein stole property. His appeal came before Nield ADCJ on 25 March 2010. On 1 April 2010 Nield ADCJ delivered judgment on the appeal. He dismissed the appeal and confirmed the conviction and sentence (against the latter of which Mr Talay did not appeal). Nield ADCJ gave reasons for his decision.

10 Sometime thereafter, on behalf of Mr Talay, an approach was made to Nield ADCJ, with a request that, pursuant to s 5B(2) of the Criminal Appeal Act, he submit a question of law for the determination of this Court. Precisely what took place during and following that approach is not known. That is because no notice of the request was given to any representative of the Director of Public Prosecutions (“DPP”). All that is known is that, on 25 June 2010, his Honour submitted a question of law in the terms set out below.

11 As I mentioned, this procedure was flawed. Although, unless a question of law proposed to be submitted is frivolous, a judge is obliged on request to state a case to this Court (see DPP v Cassell (1995) 80 A Crim R 160 at 164-165, citing Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58), the settling of the stated case, including the statement of facts found, and the question (or questions) submitted for determination, are a matter of some considerable importance, in which the opposing party has an interest, and to which it is entitled to make a contribution. Here, the prosecuting authority was not given the courtesy of notification that the approach to Nield ADCJ would be made, let alone afforded an opportunity to be heard on the form of the stated case. That oversight has had consequences. The stated case as filed is defective in a number of respects, to which I will come.

12 A stated case is, in effect, a limited form of appeal. It enables a party aggrieved by a ruling of law to move this Court for correction (if appropriate) of that ruling. It allows this Court the opportunity of providing advice, on a specified question (or questions) of law to the District Court judge; it enables the District Court judge to receive advice on questions of law relevant to the ultimate determination of a proceeding. By s 5B(2) the process is available even where the proceedings have been finally disposed of.

13 The procedure has, nevertheless, been called:

“… a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal … fraught with difficulties …”:

Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 at 211 per Street CJ.

14 That circumstance alone, leaving aside considerations of fairness, strongly suggests that the involvement, at the drafting and preparation stage, of the prosecution, would have been of general benefit.

15 A guide to “the proper drafting of a case stated” is to be found as a Practice Note in (1991) 65 ALJ at 418-419, drawing on the decision of the Appeal Division of the Supreme Court of Victoria in Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780. The author of the Practice Note (Mr J G Starke QC, then General Editor of the Australian Law Journal) extracted from the judgment the following (adding the italics):

“The principles regulating the stating and determination of a case stated should not be in doubt, for they have been several times set out emphatically by courts of high authority, although every judge knows how difficult it is to comply with all the requirements. But what is absolutely essential, and should be reasonably practicable in every case, is that the case stated must contain at least a statement of all the ultimate facts which in the opinion of the judge [in the court below] dictated his ultimate conclusion. … The case must state all the ultimate facts, including those found by inference , but not the evidence upon which the ultimate facts were founded. It may be possible, though in the absence of argument on the point we would gravely doubt it, to use the procedure by way of case stated … to raise the question whether the evidentiary facts are such that they justify in law the findings of ultimate fact made …”

The Court in Industrial Equity also quoted from the decision City of Hawthorn v Victorian Welfare Association [1970] VR 205, the following:

“Such a special case should state the findings of fact made by the County Court Judge at the hearing of the … appeal, and not the evidence given before him, nor the conclusions of law at which he arrived … The case here stated contravenes each of these requirements.”

The Practice Note in 65 ALJ went on to refer to the decision of the High Court in R v Rigby [1956] HCA 38; 100 CLR 146, and stated the following “important principle” (also quoted in Industrial Equity ):

“Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties .” (italics added)

See also Zukerman v Law Society of New South Wales (1986) 5 NSWLR 292 at 294.

16 Since there is no right of appeal to this Court from a decision of the District Court on appeal from a Local Court conviction, the stated case procedure is not intended to provide a means of challenging the ultimate determination made (or to be made): R v Madden (1996) 85 A Crim R 367, applying Re Van der Lubbe (1949) 49 SR 309 at 312.

17 Strictly speaking, this Court may not have regard to matters outside the stated case: Madden; Thomas v The King [1937] HCA 83; 59 CLR 279. That is one reason that explains the importance of the formulation of the stated case, including, explicitly, the facts found (relevant to the questions of law posed) and the questions of law to be submitted.

18 It is inappropriate (although far from uncommon) for the facts to be stated by appending the judgment of the District Court.

19 This stated case transgresses in virtually every way.

20 I mention these matters for two reasons. Firstly, it is apparent that the proper procedure is not fully appreciated, and it is appropriate to draw attention to that proper procedure. The second reason is that, in order to do justice to the parties, it has been necessary for this Court to go somewhat beyond its proper role in the determination of a stated case.

21 I now set out, in full, the case as stated:

“ STATED CASE: QUESTION OF LAW:
SECTION 5B CRIMINAL APPEAL ACT 1912


I, John Nield, an acting Judge of the District Court, having, on 1 April 2010, dismissed an appeal against conviction of Wayne Christopher Talay on a charge of break enter and steal, at the request of the defendant, submit the following question of law for determination by this Honourable Court.

In the circumstances stated in my judgment (copy attached hereto), where the only evidence available to me to prove the identity of an offender is the match, supported by statistical calculations, between the DNA profile of blood found at the scene of the offence and the appellant’s DNA profile, did I err in law by ruling that:

1. The match between the DNA profile of the blood and the appellant’s DNA profile was conclusive proof that the blood found at the scene of the offence was the appellant’s blood.

2. The evidence of the match between the DNA profile of the blood and the appellant’s DNA profile was not undermined by evidence the appellant had a brother.

3. On the basis of the DNA evidence, the only reasonable and rational conclusion to be drawn as to how the appellant’s blood came to be at the scene of the offence is that he left it there when he was in the shop, having broken into it.

John Nield
An acting Judge of the District Court of New South Wales”

22 It will be observed that there is no statement of facts. The facts are purportedly put before this Court by appending the judgment. That contains, in addition to certain facts found, references to submissions and arguments advanced by the parties, to aspects of the evidence, and to historical or procedural matters in the Local Court hearing. Often, where evidence is referred to, the judgment does not explicitly say whether that evidence has been accepted. Axiomatically, the judgment does not state what facts have been found by inference, although such facts may be of importance for the answers given to the questions submitted.

23 Also provided to this Court, and relied upon on behalf of Mr Talay, were a certificate and statement of evidence of an expert witness that were in evidence in the District Court (but not the Local Court). While the evidence of the expert was referred to in the judgment, an important aspect of the certificate was not. Yet this is critical to the question submitted, and to Mr Talay’s argument.

24 The argument put on behalf of Mr Talay draws upon evidence not referred to in the judgment, and as to which there is no finding of fact. I might add that the argument goes much further, and interpolates factual matters that, it can be inferred from the absence of reference to them in the judgment, were never before Nield ADCJ, but that is something to which I will come. This Court was provided with a transcript of the proceedings before Nield ADCJ. I have declined to read this. It is not, in my opinion, properly before the Court (as senior counsel for Mr Talay conceded).

25 In Industrial Equity the court found that the stated case as presented was so flawed that it ordered that it be set aside. In the circumstances of the present case, it is tempting to take the same course, and set aside the case stated. However, it is, I have concluded, more appropriate to attempt to deal with it within the constraints of its deficiencies, and, in the words used in City of Hawthorn, attempt:

“to extract … enough findings of fact to enable this Court to perform its function …”

26 The appeal in the District Court was conducted on the evidence in the Local Court, supplemented by a further expert certificate (the certificate referred to in para [23] above).

27 I will start by attempting to identify from the District Court judgment the relevant facts found by his Honour. Although a properly prepared stated case will state the facts found in the form of numbered paragraphs (the format is set out as an annexure to the judgment in Industrial Equity at pp 787-790), that has not here been done, and I can only refer to the facts in a narrative form.

28 During the evening between 30 and 31 January 2009 a person broke and entered a shop in Enmore Road, Marrickville, vandalised the shop, and stole property. When the incident was investigated, bloodstains were found on the shop’s counter. They had not been present when the owner left the shop the previous evening. A sample was taken from the bloodstain for the purpose of DNA testing. That testing identified a positive link with Mr Talay. It is a reasonable inference from this (though not an express finding of fact) that Mr Talay’s DNA profile appeared on a known database.

29 Subsequently, Mr Talay was arrested and charged with the offence. He was requested to provide a buccal swab for further DNA testing, but declined, as was his entitlement. A Sergeant Donnellan ordered that a hair sample be taken from Mr Talay, and this was done (although, apparently, irregularly). The hair sample was DNA tested and the profile compared with the profile of the DNA taken from the bloodstain in the shop.

30 An analyst certified that the two profiles were the same, and that “this profile is expected to occur in fewer than one in ten billion individuals in the general population”.

31 It is now necessary to depart from the attempt to discern the facts found, and refer to the judgment delivered by Nield ADCJ. His Honour referred to the transcript of proceedings in the Local Court. He recorded that, during those proceedings, a voir dire examination had taken place with respect to the admissibility of the expert evidence. A second voir dire took place with respect to the admissibility of the evidence derived from the hair sample taken from Mr Talay on the order of Sergeant Donnellan (it, apparently, having been conceded that this procedure did not comply with certain statutory requirements). Nield ADCJ further recorded that, during the course of a voir dire, Mr Talay gave evidence that his father was alive and that he (presumably Mr Talay and not his father) had one brother, two uncles and three cousins. His Honour then noted that the proceedings in the Local Court came to an end without any further evidence having been called. However, the magistrate raised the question of the admission in the substantive proceedings of the evidence taken on the voir dire. It appears that it was agreed that that course could be taken.

32 Nield ADCJ described this as “unfortunate” because, although Mr Talay had been cross-examined in respect of the voir dire issues, he had not been cross-examined on “the central issue of the prosecution case” – presumably his involvement in the offence. He thus had the advantage of his evidence in some respects being taken into account without the disadvantage of having been subjected to cross-examination on the substance of the prosecution.

33 Nield ADCJ then recorded submissions made on behalf of each of the parties and reached certain conclusions, from which it may be deduced that he made certain findings of fact.

34 For example, he recorded that Mr Talay’s solicitor challenged the DNA evidence (derived from the hair sample) because the evidence did not establish a “chain of continuity”. He rejected this submission, declaring himself satisfied beyond reasonable doubt that the chain of continuity had been properly established.

35 He then recorded the submission made on behalf of Mr Talay concerning the irregularity in taking the hair sample from Mr Talay and determined (presumably pursuant to s 138 of the Evidence Act 1995) that the evidence ought to be admitted. He noted a further submission which he recorded in the following terms:

“(iii) The evidence of [the DNA expert] as to the effect that the appellant’s having a brother has upon the DNA evidence results in the DNA evidence being not statistically strong.”

As to this, his Honour made the following finding:

“41. As to the DNA evidence, I am satisfied that, putting aside the supplementary certificate of [the expert], the match between the DNA profile of the blood swab and the DNA profile of the hair sample is conclusive proof that the blood found on the shop’s counter was [Mr Talay’s] blood. Also, I am satisfied that the evidence of the fact of [Mr Talay] having a brother does not undermine the match between the respective DNA profiles, although it reduces or dilutes the statistical probability.” (italics added)

36 Finally, he recorded, in the following terms, a submission made on behalf of Mr Talay:

“(iv) As this is a circumstantial evidence case, the DNA evidence is insufficient to prove that the only reasonable and rational conclusion to draw is that [Mr Talay] was the offender.”

As to this, he held:

“42. I am satisfied beyond reasonable doubt by the DNA evidence that the blood found on the shop’s counter was [Mr Talay’s] blood and that the only reasonable and rational conclusion to be drawn as to how [Mr Talay’s] blood came to be on the shop’s counter between 7.30pm on 30 January 2009 and about 5.40am the following day, 31 January 2009, is that he left it there when he was inside the shop, having broken into it.”

As a consequence he dismissed the appeal, and confirmed the conviction and the sentence.

37 From this, it may be inferred, relevantly, that his Honour made the following further findings of fact:

(i) that Mr Talay had a brother;

(ii) that, notwithstanding that the expert gave certain evidence concerning the effect on her opinion of the existence of a brother of Mr Talay, the DNA evidence was nevertheless sufficient to establish that the blood on the counter was that of Mr Talay.

38 In the course of his reasons, his Honour referred to the “further certificate” of the expert. He did not record the content or effect of that certificate and made no finding of fact about it. This Court was invited to have regard to the certificate, in which the expert reported;

“(4) … Wayne TALAY has the same DNA profile … as the DNA recovered from [the bloodstain]. It is approximately 7600 times more likely to obtain this profile if it originates from Wayne TALAY, than from a biological brother of Wayne TALAY. Alternatively this can be stated as: If a brother of Wayne TALAY was DNA tested then the probability that he would have the same DNA profile … as the DNA profile recovered from [the bloodstain] is approximately 1 in 7600.” (bold in original)

39 Although, as I have said, his Honour did not make a finding of fact in this respect, since there is no suggestion that the expert’s evidence was in any way contradicted, it may be inferred that his Honour did accept that as an established fact: see Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426.

40 In accepting the invitation to have regard to this evidence, this Court is obliged to depart in a substantial way from its proper role in determining questions of law submitted under s 5B(2). If there were any way of disposing of this stated case without doing so, I would decline to have regard to that evidence. I am, however, unable to see how this Court could give sensible reasons for its decision without referring to that evidence other than by setting aside or striking out the stated case, a course it was not suggested the Court should take.

41 I turn now to the three questions submitted, and the submissions made on behalf of the parties.

Question 1

42 Question 1 asked whether Nield ADCJ erred in law by ruling that:

“the match between the DNA profile of the blood[stain] and [Mr Talay’s] DNA profile was conclusive proof that the blood found at the scene of the offence was [Mr Talay’s] blood.”

43 This question is drawn from that part of the judgment in which his Honour said:

“41. As to the DNA evidence, I am satisfied that … the match between the DNA profile of the blood swab and the DNA profile of the hair sample is conclusive proof that the blood found on the shop’s counter was [Mr Talay’s] blood.”

In fact, the question does not fairly represent what his Honour did. What he said was that, putting aside the supplementary certificate , the DNA evidence, that the profile of DNA from Mr Talay matched the DNA in the bloodstain, and that that profile would be expected to occur in fewer than 1 in 10 billion individuals in the general population. It was that that he characterised as “conclusive proof”. But he immediately went on to consider the impact on that conclusion of the evidence that Mr Talay had a brother, and that the evidence in the supplementary report (that there existed a 1 in 7600 chance that the brother had the same DNA profile), while reducing or diluting the statistical probability (that the bloodstain was left on the counter by Mr Talay), did not “undermine” the match between the profiles.

44 The submissions presented on behalf of Mr Talay in support of this question were discursive. They incorporated reference to a considerable amount of factual matter that was not before Nield ADCJ. By way of example only, I refer to the following submissions and append my own comments:

Paragraph 27:

“The significance of the DNA evidence thus depends critically upon what else is known about the suspect accused.”

That this was a matter of fact is put beyond doubt by the citations contained in a footnote which immediately follows. Reference is made in the footnote to a number of articles in various journals. The footnote directs attention to:

“a summary of nature of DNA evidence and the problems associated with science and technology.”

Paragraph 32:

“This reasoning is based upon the way in which DNA profiles are obtained. The profile only represents a very small portion of a person’s unique DNA. The profile however is not unique.”

Again, the submission is expanded by a footnote, which asserts:

“It is scientifically recognised that each person’s total DNA is unique, with the exception of identical twins.”

Paragraph 33:

“The statistical steps that give DNA its probative value are based on models, which, in turn, take into account assumptions about population genetics and human reproductive habits. No scientist in the field has said or could say that the models generated are infallible. They are models, mathematical constructs as good only as the data that forms them; every model carries within it the inherent possibility that some results will be wrong.”

Paragraph 37:

“There also remains the even more real possibility of contamination. This was most recently illustrated in the recent Victorian inquiry into the wrongful conviction of Mr Abdulkadir Jama conducted by Justice Vincent: F Vincent QC. This is but one example. There are others in which data has been wrongly entered or misread or machines have malfunctioned or where there has been cross contamination.”

45 These are, as I have said, matters of fact, of which there is no suggestion that there was any evidence before Nield ADCJ, let alone any finding of fact by his Honour. If reliance were to be placed upon these factual matters, then it was necessary that they be the subject of evidence, whether through cross-examination of the prosecution’s expert witnesses, or through expert witnesses called on behalf of Mr Talay; that would have enabled Nield ADCJ to make relevant findings of fact which ought, in turn, to have found their way into the stated case. There being no reference in the stated case to such findings of fact, none in the judgment, and none in the written or oral submissions made on behalf of Mr Talay, I comfortably infer that there was no such evidence. These assertions must be disregarded.

46 Doing the best I can to understand the case made on behalf of Mr Talay, it is to be encapsulated in paragraph 50 of the written submissions, as follows:

“50. … the principle that DNA evidence alone can never establish a person’s guilt flows fundamentally from the nature of DNA evidence and the law in relation to circumstantial cases. As DNA is not direct evidence, DNA statistical evidence is always circumstantial, and there always exists a rational alternative inference in a cold hit case such as this that there is someone else who has the profile … In addition, we are all notoriously bad at evaluating the probative value of statistics: see for example R v GK [[2001] NSWCCA 413; 53 NSWLR 317].”

47 After receiving written submissions on behalf of the DPP, counsel for Mr Talay somewhat changed their position. Having referred to a number of decisions concerning directions given to juries with respect to DNA evidence (R v Milat (1996) 87 A Crim R 446), and the manner in which DNA evidence is expressed (R v GK)) counsel made the (rather surprising) submission:

“The first question refers to the finding in the judgment that the DNA evidence was ‘ conclusive proof ’ that the blood at the crime scene was that of [Mr Talay]. We agree with the Crown submission that the use of that phrase connotes something more than beyond reasonable doubt. The adoption of a standard of proof different from and more stringent than beyond reasonable doubt is an error of law .” (italics in original; bold added)

48 When taxed during oral argument, senior counsel accepted that “conclusive proof” denotes proof at a higher standard than the criminal standard of “beyond reasonable doubt”, but was unable to explain how, even if this were, as he contended, an error of law, it was one that in any way disadvantaged Mr Talay. Of course, it did not. Indeed, it is not beyond doubt in my mind that his Honour applied a “conclusive proof” test – in my view, he is to be taken merely as having held that the prosecution had discharged its onus of proof to a standard well beyond that required by the criminal law.

49 To reflect accurately what his Honour did, it may be appropriate to read down the question submitted to the following:

“Did I err in law in ruling that the DNA evidence proved beyond reasonable doubt that the blood found at the scene of the offence was that of Mr Talay?”

50 In order to raise a question of law, as required by s 5B(2), it would be necessary to question whether the DNA evidence was capable of establishing that identity beyond reasonable doubt. If that is not the question, then the question is one of fact and inappropriate for submission to this Court. However, the question so framed is so far from that submitted by Nield ADCJ as to be a reconstruction, well outside the ambit of what is proper for this Court to do. I would (if an extension of time were granted) decline to answer Question 1 as submitted.

Question 2

51 The question here submitted is whether his Honour erred in law in ruling that the evidence of the match between the DNA profile of the bloodstain and Mr Talay’s DNA profile was not undermined by evidence that Mr Talay had a brother.

52 This question is also drawn from paragraph 41 of his Honour’s judgment, the second sentence thereof. That sentence reads:

“Also, I am satisfied that the evidence of the fact of [Mr Talay] having a brother does not undermine the match between the respective DNA profiles, although it reduces or dilutes the statistical probability.”

53 It was perfectly correct to say that the evidence did not undermine the match: the scientific evidence (it seems) was as set out in paragraph 25 of the judgment to the following effect:

“… [Mr Talay] has the same DNA profile as the DNA profile recovered from the swab taken from the stain on [the] shop’s counter … and that ‘this profile is expected to occur in fewer than one in ten billion individuals in the general population’.”

54 If, contrary to proper stated case procedure, the reference to the “supplementary certificate” were added to the factual findings, the finding would be that:

“It is approximately 7600 times more likely to obtain this profile if it originates from Wayne TALAY, than from a biological brother of Wayne TALAY. Alternatively … if a brother of Wayne TALAY was DNA tested then the probability that he would have the same DNA profile … is approximately 1 in 7600.”

55 His Honour took into account the “reduce[d] or dilute[d] statistical probability” that the bloodstain originated from Mr Talay. But the content of the “supplementary certificate” forms no part of the stated case. There is, accordingly, no basis upon which this Court could find any error of law. If Question 2 were to be answered, it would have to be in the negative. However, in my opinion, the Court should decline to answer the question.

Question 3

56 This question asks whether it was an error of law to conclude that:

“… the only reasonable and rational conclusion … is that [Mr Talay] left it there when he was in the shop, having broken into it.”

57 As with the previous question, there is no basis identified in the stated case upon which the Court could answer this question. I would decline to answer.

58 The deficiencies in the stated case are so fundamental and so pervasive that, in my view, the Court ought not engage in an attempt to answer the questions. The proper order is that the application for extension of time be refused.

59 SCHMIDT J: I agree with Simpson J.

60 HOWIE AJ: I have read the judgment of Simpson J in draft. I agree that an extension of time should be refused. That being the case, it is unnecessary, in my opinion, to attempt to answer the questions asked.

61 I would not have regard to the “supplementary certificate” in the circumstances as set out in the judgment of Simpson J. That certificate is not in my view part of the stated case. If that means that, by disregarding the contents of the certificate, some part of the stated case and his Honour’s judgment is made unintelligible, so be it. That is the fault of the appellant. It is partly the result of the inappropriate annexure of the judge’s reasons in order to fulfill the requirements of the stated case. In my opinion it is fundamental to the procedure that all the evidence relied upon by the judge be set out in the stated case. I do not consider it an unduly technical approach to insist upon that rule.

62 When this defect was drawn to the attention of Senior Counsel for the appellant at the hearing, he sought to have this Court amend the stated case. The Court expressed its doubt that it had this power. The appellant’s counsel appeared to accept that this was so but never sought to have the matter returned to the judge for any defect in the stated case to be addressed.

63 I find it difficult to comprehend that the appellant’s legal representative could consider that it was appropriate to approach a judge for the purpose of having a case stated to this Court without serving the prosecutor with the application. I also find it difficult to understand how an experienced judge could undertake the procedure of stating a case without having the input of both parties. It is really a matter of procedural fairness, if not common sense, that the prosecutor be informed of the application and invited to participate. But so often the requirement of procedural fairness seems to be viewed as being a one-sided concept in the criminal law operating only to the advantage of the defendant.

64 The stated case procedure is to a high degree formalistic and technical. There is a real question in my mind as to whether it should be reformed and a more simple appeal provision similar to that applicable to appeals from magistrates to the Supreme Court be adopted. But the procedure is well known and there is ample authority as to how a stated case should be drawn and what should be its contents. Not only has the appellant failed to comply with the most basic fundamental procedure in disregarding the prosecutor’s role, but he also has failed to comply with the more technical requirements of a stated case, and to a large extent simply ignored the time limit specified by the statute. Further, as Simpson J points out, the vast majority of the submissions placed before this Court was not based upon any evidence or contention raised before the District Court.

65 In light of the material set out in the judge’s reasons for dismissing the appeal, I do not believe that there is any merit in the application in any event.

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