The Queen v Dagger
[2017] NTSC 19
•15 March 2017
The Queen v Dagger [2017] NTSC 19
PARTIES:THE QUEEN
v
DAGGER, Crawford
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21635953
DELIVERED: 15 March 2017
HEARING DATES: 21, 22, 23, 24 and 27 February 2017
JUDGMENT OF: MILDREN AJ
CATCHWORDS:
EVIDENCE – expert evidence – DNA evidence – whether expert was qualified to give an opinion about the number of contributors – whether expert evidence admissible – Uniform Evidence (National Uniform Evidence Legislation) Act, ss 76(1); 79(1)
EVIDENCE - tendency evidence – coincidence evidence – whether admissible to prove defendant involved in supply of illegal drugs – Uniform Evidence (National Uniform Evidence Legislation) Act, ss 55(1), 56(1), 97, 98 and 101(2)
Misuse of Drugs Act, ss 3(1), 3(6), 5(1) and 5(2)(b(iA)
Uniform Evidence (National Uniform Evidence Legislation) Act, ss 55(1), 56(1), 76(1), 79(1), 97, 98 and 101(2)Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Honeysett v The Queen (2014) 253 CLR 122; IMM v The Queen (2016) 90 ALJA 629, applied
Tuite v The Queen [2015] VSCA 148; The Queen v Grant [2016] NTSC 54; Saoud v R [2014] NSWCCA 136; BP v R [2010] NSWCCA 303, followed
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Tuite [2014] VSC 662, R v Karger (2001) 83 SASR 1, Elomar & Ors v R [2014] NSWCCA 303; 316 ALR 206, referred to
REPRESENTATION:
Counsel:
Prosecution: D Dalrymple and N Loudon
Defendant:I Read SC and N MacCarron
Solicitors:
Prosecution: Office of the Director of Public Prosecutions
Defendant:Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Mil17544
Number of pages: 40
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Dagger [2017] NTSC 19
No. 21635953
BETWEEN:
THE QUEEN
Plaintiff
AND:
CRAWFORD DAGGER
Defendant
CORAM: MILDREN AJ
REASONS FOR RULING
(Delivered 15 March 2017)
The accused is charged with a single count that between 1 January 2015 to 28 May 2015 at Darwin in the Northern Territory of Australia, he unlawfully took part in the supply of a dangerous drug, namely methamphetamine to another person, contrary to ss 5(1) and (2)(b)(iA) of the Misuse of Drugs Act (NT) (“the Act”).[1]
Subsection 3(6) of the Act provides that:
a person takes part in the supply … of a dangerous drug if the person:
(a)takes, or participates in, a step, or causes a step to be taken, in the process of that supply …
Section 3(1) of the Act defines “supply” to mean:
(a)give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in expectation of fee, reward or consideration;
(b)offering to do an act referred to in paragraph (a); or
(c)doing or offering to do an act preparatory to, or in furtherance of, or for the purpose of, an act referred to in paragraph (a),
and includes barter and exchange.
The Crown Case
At some time prior to 1 April 2015, the accused became acquainted with Anthony Orrell (“Orrell”) and Zayley Ainslie (“Ainslie”). On 1 April 2015, police executed a search warrant on the residence of Orrell and Ainslie at 15/17 Dinah Court, Stuart Park, NT. During the search the following items were located and seized:
(1)11.39 grams of methamphetamine;
(2)a 10ml vial containing 2.29 grams of sustanon 250 (testosterone propitiate);
(3)a 10ml vial containing 1.24 grams of a mixture containing testosterone propitiate;
(4)1.67 grams of cannabis;
(5)3 ice pipes;
(6)$33,850 in cash;
(7)empty clip seal bags; and
(8)digital scales.
During the course of the search, Orrell, Ainslie and the accused arrived at the Dinah Court flat. Another person, a friend of Ainslie’s called Jade Thew (“Thew”) was already present there.
The police interviewed Orrell who made admissions in relation to the seized drugs. The $33,850 seized was the proceeds of methamphetamine sales brought to the house, so it is alleged, by the accused. There was an arrangement that Orrell would receive some of the money in return for his assistance in the accused’s drug dealing activities. The Crown proposes to call Orrell as a witness at the accused’s trial to prove these facts. However the Crown does not have a statement to this effect from Orrell. I understand that the Crown is relying on what was put on Orrell’s behalf at his sentencing hearing, and that the Crown will, if necessary, use the provisions of s 38 of the Uniform Evidence (National Uniform Legislation) Act (NT) (“the Uniform Evidence Act”) to have this witness questioned as an unfavourable witness.
The Crown alleges that after the first search, Orrell and Ainslie came into possession of more than 191 grams of methamphetamine. Ainslie asked a long-time friend, Michelle Margetic (“Margetic”) if she could store some items in Margetic’s unit at 19/12 MacKillop Street, Parap, to which she agreed. Orrell and Ainslie then placed the methamphetamine in a small black key-lock safe which they placed under a bed in the main bedroom of Margetic’s unit. They also stored cash being the proceeds of the sale of methamphetamine in the safe.
On 28 May 2015, police conducted a search of Margetic’s unit and located, inter alia, $5,500 in cash and a package containing 191.39 grams of methamphetamine. At the time of the search, there was no one present at the unit and police installed optical and listening devices pursuant to s 33 of the Surveillance Devices Act. When Margetic returned to the unit and discovered that the safe was missing, she telephoned Ainslie, as a result of which Orrell, Ainslie and a person called Fidow arrived at the unit, and conversations between them were captured by the surveillance devices.
Subsequently, on 29 May 2015 a search warrant was executed at 15/17 Dinah Court, Stuart Park, and Orrell and Ainslie were arrested. During the search a key to the safe was located in Ainslie’s handbag; and a number of mobile phones were seized.
The drugs found in the safe were packaged with cryovac and glad wrap. Small amounts of DNA were found on the packaging which the Crown alleges are consistent with the accused’s DNA as a minor contributor, the major contributor being Ainslie. This is the only evidence that directly connects the accused with the drugs in the safe, albeit that the connection is circumstantial. In addition, there is a number of pieces of other circumstantial evidence which the Crown intends to rely upon at trial to prove its case, to which I will refer later. However, the DNA evidence is of particular significance. It is objected to by the defendant essentially because, so it is submitted, the Crown has not proved that its principal expert witness, Kate Cheong-Wing, has the necessary expertise to give evidence about a vital step in the process of establishing the statistical validity of the results obtained.
The Issue
Two relevant items were submitted for DNA testing. The first was a swab taken from the entire outer surface of the cryovac bag, referred to as item 04A. The second was a swab from both pieces of glad wrap, referred to as item 04B.
The initial results obtained, as set out in Ms Cheong-Wing’s statement of 3 November 2015 (“the 3 November report”), indicated, in respect of both items, that the profile was too complex for statistical interpretation. In relation to item 04A, the 3 November report indicated:
in relation to item 04A: there was a mixed DNA profile from at least three individuals. Some of the DNA components matched the DNA components attributed to Ainslie. Margetic and Orrell were excluded as contributors; and
in relation to item 04B: there was a mixed DNA profile from at least four individuals. Some of the DNA components matched the DNA components attributed to Ainslie. Margetic and Orrell were excluded as contributors.
The results in the 3 November report were obtained using a Promega Powerplex 21 (PP21) amplification kit. PP21 contains 20 loci plus a sex indicator, with two alleles (DNA components) expected at each locus (DNA site). Statistical calculations were then attempted using a computer program called STRmix to perform the Likelihood Ratio (LR) calculations on a mixed profile.
Prior to the accused’s arrest on 4 August 2016 the Northern Territory Forensic Laboratory (“the Lab”) had obtained the genetic profile of the accused from a forensic laboratory in New South Wales which was the list of alleles for the PP21 amplification kit. When the accused was arrested, a buccal swab was obtained from him for use by the Lab which contained his full profile. By this time, the Lab had changed its amplifier kit and instead of PP21, was using a GlobalFiler Kit. Also, the Lab was using a different version of STRmix, version 2.3.06. The purpose of these equipment changes was to improve the ability of the Lab to get more reliable results when amplifying the DNA.
According to the second statement of Ms Cheong-Wing dated 5 October 2016, the following results were obtained:
(a)In relation to sample 04A: A mixed profile was obtained, interpreted as coming from four individuals. The profile was too complex for statistical interpretation.
As a result, the sample was repeated[2] yielding the following results:
(b)In relation to sample 04A: A mixed profile was obtained, interpreted as coming from four individuals. The DNA profile is approximately 1.5 million times more likely to have occurred if it came from Crawford Dagger and three unknown unrelated individuals than if it came from four unknown unrelated individuals.
(c)In relation to sample 04B: A mixed DNA profile was obtained, interpreted as coming from four individuals. The profile was too complex for statistical interpretation.
As a result item 04B was re-analysed,[3] producing the following results:
(d)In relation to sample 04B: A mixed DNA profile was obtained, interpreted as coming from four individuals. The DNA profile is approximately 16 billion times more likely to have occurred if it come from Crawford Dagger and three unknown unrelated individuals than if it came from four unknown unrelated individuals.
A critical step in the process of statistical interpretation is determining the number of individuals (or number of contributors) who have contributed to the mixed DNA profile (“the NoIs”). It is common ground between the defence expert, Dr McDonald, and Ms Cheong-Wing that if NoIs is understated, so that if the actual NoIs is five and not four, the statistical result may be so unreliable as to be of no use so far as minor contributors are concerned. The challenge to Ms Cheong-Wing’s expertise is whether or not she is capable of giving an expert opinion that in this case, the NoIs was in fact four, and not five or more.
Opinion Evidence
Section 76(1) of the Uniform Evidence Act provides:
76 The opinion rule
(1)Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
As was said by the High Court in Dasreef Pty Ltd v Hawchar[4] the opinion rule directs attention to the finding which the tendering party will ask the tribunal of fact to make; which requires the court to be satisfied that the evidence is relevant, and identification of the fact in issue which the tendering party asserts the opinion proves or assists in proving. In this case there is no challenge that the DNA evidence, if accepted, will prove that the accused touched the packaging in which the drugs were found, and is clearly relevant. By itself, this does not prove that the accused unlawfully took part in the supply of the drugs, but it is a piece of circumstantial evidence, which together with the other circumstantial evidence relied upon by the Crown, could lead a jury to so find. As a critical step in the process of proof of those results, an opinion concerning the value of the NoIs is opinion evidence. This is not disputed.
Section 79(1) of the Uniform Evidence Act provides:
79 Exception – opinion based on specialised knowledge
(1)If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In order to appreciate the challenge to Ms Cheong-Wing’s expertise, it is necessary to summarise Dr McDonald’s evidence on this subject. When analysed he asserted the following propositions:
(1)The correct number of contributors[5] is a critical factor required by STRmix to calculate a likelihood ratio for any particular individual.
(2)The STRmix software cannot operate without knowing the NoIs that are proposed for the mixture. It does not have the capacity to identify the NoIs.
(3)When there are low levels of DNA such as in this case and multiple contributors, there is an extremely high likelihood that the NoIs will have been underestimated.
(4)When there are low levels of DNA and the same amount of DNA for each contributor, the likelihood of error in the NoIs is 75%.
(5)Where in addition there is “drop out”,[6] the likelihood of error in the NoIs would approach 100%.
(6)There is no scientific foundation either in the literature or the validation studies that would entitle one to assume that there were four contributors in this case. The studies that have been undertaken which are not as complex or low level as in this case, indicate that one cannot accurately determine the NoIs in a mixture such as this. Consequently the statistical ratio (“SR”) produced by entering the data into STRmix is so unreliable as to be meaningless.
The Evidence of Ms Cheong-Wing
It was conceded by Mr Read SC for the accused that Ms Cheong-Wing was an impressive, capable and honest scientist. Her professional qualifications as a forensic biologist included the degree of Bachelor of Science (2003) and a short course in Statistics for Forensic Biology (2003). She has also attended a number of formal training courses including STRmix Train the Trainer course (Australia New Zealand Policing Advisory Agency) (2012); and the Advanced STRmix Users Forum, Australian and New Zealand Forensic Science Society (2016). She is the author or co-author of a number of scientific validation studies which were tendered in evidence, including a paper entitled “Verification of the Database Searching Module in the STRmix Program” dated November 2016, concerning which she made an oral presentation summarising the details of the study at a conference in Auckland in 2016 under the auspices of the Australian and New Zealand Forensic Science Society Symposium at which she was awarded best oral presentation for biological case work.
Ms Cheong-Wing is employed as a Senior Scientist in the Forensic Science Branch, Northern Territory Police, Fire and Emergency Services. She is authorised, following training, to examine biological material, to carry out the processing to produce DNA profiles, to interpret these profiles and weigh them utilising the statistical package used in the laboratory. Her training includes the quantification of DNA, the setting up of amplification kits and the use of both PP21 and GlobalFiler. Her training includes assessment by both oral questioning and hands-on practical work which is assessed by a Training and Authorisation Board, comprised of a number of other authorised scientists and often the quality assurance manager as well. The Northern Territory Forensic Biology Laboratory is accredited by the National Association of Testing Authorities (“NATA”). This involves proficiency testing of the scientists, which she has undertaken. The accreditation is done by an external assessor who views the laboratory’s methods, procedures, training, validations and reports to assess whether the laboratory meets the standards set by the governing body. Accreditation is an on-going process.
Ms Cheong-Wing’s practical experience includes having:
·Examined, interpreted, tested, analysed, statistically evaluated and reported many thousands of items of evidence.
·Attended crime scenes for the purpose of biological testing and evidence collection.
·Passed Proficiency Testing relevant to Forensic Biology in accordance with the standards set by the National Association of Testing Authorities (ISO 17025).
·Attended and presented at international conferences and symposia relating to Forensic Biology.
·Participated in numerous DNA statistical training courses and/or workshops.
·Presented training/lectures to Forensic Biology staff on DNA statistics.
·Presented training/lectures to Prosecutors, Police members, Students and Staff on Forensic Biology.
·Successfully completed numerous internal validations of processes and statistical analysis programs.
·Given evidence on numerous occasions (both Magistrates and Supreme Court), in the NT jurisdiction.
·Kept abreast of current scientific findings in the fields of Forensic Biology and Statistics through reading literature, consulting with colleagues and participation in specialist workshops and international Forensic Science Symposia.
Determining the NoIs
Ms Cheong-Wing’s evidence was that to determine the number of contributors to a mixed profile, she uses a holistic approach to profile interpretation which looks at the profile as a whole. This includes looking at the allele count, the peak heights across the profile, and the ratios of the contributors. If there are differences in peak heights between alleles in a particular locus, this infers that there are multiple contributors. Knowledge of how a profile behaves helps to determine that first. Then a comparison is made between the reference sample and the profile. If there are alleles present in the reference sample that are not present in the crime scene sample, the conclusion is that the person in the reference sample is excluded from the profile. If that conclusion cannot be reached a statistical analysis is done to look at the weighing of that contribution to that profile. One locus, SE33, is highly discriminatory. Within the general population, people are more likely to have a larger number of alleles at that locus. It is often quite informative in helping to determine the number of contributors or a contributor ratio across the profile. Looking at the profiles obtained from items 04A and 04B she said that she was able to determine initially that there was a major component which appeared to be female in origin, a minor component and trace elements of other individuals. She explained that in determining the number of contributors she also took into account other factors known to influence DNA profiles, such as degradation and amplification efficiencies (or how well each locus will actually amplify throughout the whole profile) and in combination with one another. Because there was no evidence of a fifth contributor, she was confident of her call. Once the number of contributors is determined, the evidence is put into STRmix to perform the relevant statistical evaluations of the individual contributors.
Ms Cheong-Wing accepted that there was a very slight possibility that there may be a fifth contributor in this case. If she had concluded that there was a fifth contributor, she agreed that the verification studies in the Lab limited the number of contributors to a mixed DNA profile to four. Accordingly, if there were five contributors, no statistical evaluation would be possible at the moment.
Ms Cheong-Wing accepted that there were no published rates relating to the confidence level or possibility of variation in terms of the number of contributors. However, she said that within the validation studies, a number of “blind” interpretations were done to assess the number of contributors in the sample, and this included complex mixed low-level samples. She conceded that the studies did not work out a variable rate for the number of contributors, although that was something which could be looked at and incorporated into the studies. However, she said:
When you’re trying to get a profile for the minor contributor in a low-level complex mixture, that is where the number of contributors is particularly relevant, isn’t it?---It is, yes. And we have a number of safeguards in the laboratory in terms of all our procedures and the way we approach profile interpretation has been assessed by our external auditors. With all our case files and all our profiles, we require a second authorised person who has undergone all the training required to interpret profiles to agree with our findings in that case. As a result, we’ve had, obviously, more than one authorised individual having a look at these profiles and agreeing with the interpretation that was put forth. In terms of statistical interpretation, whilst there are variances within that program, STRmix has a number of correction factors which help to ensure that the likelihood ratio is of a more conservative nature than it could be, and I believe that all the training that we undergo, which, for most of our analysts, can take up to five years before we allow them to profile interpret, ensures that we are using the evidence that we see to inform the number of contributors.
In relation to whether or not the “holistic approach” which she adopts in calculating the number of contributors was accepted by the scientific literature she stated:
·that she had undergone a number of training workshops by the developers of STRmix who have instructed that this was the correct method to interpret mixtures when using STRmix as a continuous model and that the method she used was used Australia wide.
·She referred to a published paper to the effect that reliance should not be placed on allele counts alone but that peak heights can be used reliably for assigning the number of contributors to a profile, even at low template.[7] The same paper referred to the inclusion of SE33 locus which “significantly decreases the risk of allele masking compared with when it is absent. SE33 is known to be a very discriminatory locus”.[8]
·That she bases her calculations on her experience and training and whether there is any evidence of a fifth locus in the profile.
·That, as a result of studies undertaken by her and others in the Lab, the variability in likelihood ratios is much more likely to differ with trace contributors, but the major and minor contributors were more stable. The defendant was a minor contributor. She estimated that he contributed 14% of the DNA in sample 04B, and slightly higher for sample 04A.
In cross-examination, it was put to her that if the number of contributors increased from four to five, the likelihood ratio would go down. She said, not necessarily:
But what happens are two things, isn’t it, once you increase the contributors? The likelihood ratio goes down considerably, is that right?---Not necessarily, no.
No?---It depends on---
If you’ve wrongly done it?---It still depends on the profile you have in front of you. When you have contributors in varying ratios and you add an extra contributor, it doesn’t necessarily decrease the likelihood ratio, because STRmix is still looking at the combination of peak heights and alleles at those loci. If you have a profile which, for all the evidence in that profile, presents as a four-person and you add a fifth person into STRmix, STRmix will have to assign that ratio for that contributor as extremely low, almost zero, because it can’t see any evidence of that person within that profile. Therefore, the combinations of alleles that it would choose for that person, may not greatly influence, especially your major contributor, but also your minor contributor. Sometimes the LR may not change at all. Unfortunately, unless we do it to a profile, we can’t know for certain whether it will go up or down.
Well, you could have done it in this case, couldn’t you? It was an extra check, couldn’t you?---Well, we’re not validated to do five-person mixtures. Therefore, I would not attempt to do that. Plus, in my interpretation---
But you would still get---?--- ---it was a four.
You would still get a result though, wouldn’t you?---You would still get a likelihood ratio, yes.
And you could use it, even if it’s not validated, to check, couldn’t you?---Well no, it’s not validated, therefore we don’t use it. And on profile interpretation, this appeared to be a four-person mixture. There is no evidence that I can see of it being a fifth person mixture.
Ms Cheong-Wing was cross-examined about a paper published in 2014 which concerned the risk in solely using the maximum number of alleles observed at a locus to assess the number of contributors. The authors say:
The best approach to dealing with uncertainty over the number of contributors is to incorporate it into the calculation of the likelihood ratio, and marginalise it,”[9]
according to a formula set out in the paper.
Ms Cheong-Wing agreed that she did not do what the authors recommended:
No. Why didn’t you do that?---It’s not common practice in the Northern Territory, or the rest of Australian (sic), and therefore not recommended.
Is it bad science?---No.
No. Does it give greater confidence to try and allow for the risk of getting contributors wrong?---I would have to do a study into it, to say whether I agreed with that. However, I don’t believe that the way we attempted profile interpretation is wrong.
Conclusions
There is no doubt, considering her evidence as a whole, that Ms Cheong-Wing is very familiar with the scientific literature on the topic, and in my opinion her methodology takes into account all of the critical factors which are available for a calculation of the number of contributors. Further, I accept her evidence that in this particular case the accused’s contribution of DNA to the profile was that of a minor contributor, not a trace contributor, and that the likelihood of a fifth contributor was only a very slight possibility. The essential question is whether in all the circumstances she is sufficiently qualified as an expert to give this evidence.
The argument of Mr Read SC in that the assumption of a fourth person mixture in the GlobalFiler analysis was not able to be gauged independently by the application of the learning of the area of specialisation. In Honeysett v The Queen[10] the court said:
Section 79(1) states two conditions of admissibility: first, the witness must have “specialised knowledge based on the person’s training and experience” and, secondly, the opinion must be “wholly or substantially based on that knowledge”. … Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. ... However, the person’s training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines “knowledge” as “acquaintance with facts, truths, or principles, as from study or investigation (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J’s formulation in Daubert v Merrell Dow Pharmaceuticals Inc: “the word ‘knowledge’ connotes more than the subjective belief or unsupported speculation … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.
In my opinion, Ms Cheong-Wing amply demonstrated “knowledge” in this sense, based as it was on her experience and training: and it could not be doubted that it was specialised knowledge. Her opinion is not based on subjective belief. Her methodology was supported by the scientific literature in terms that she did not rely solely on allele counts; she took into account peak heights; and she took into account that there was available to her the alleles from the SE33 locus; she looked for and could not find any evidence of a fifth contributor; she adopted a process of discrimination which the developers of STRmix had trained her to use and which to her knowledge was used Australia-wide; she was aware from her experience that if the profile was wrongly interpreted STRmix would on occasions give an error message to the effect that the information put into the program is not sufficient for the number of contributors that have been assigned. Her knowledge was not based on unsupported speculation, but was based on inferences informed from her knowledge of forensic biology, the scientific literature on the subject matter, and her training and experience.
Mr Read SC submitted that it was not relevant that she has made an informed judgment, honestly and conservatively made, based on her experience. This was similar to a submission made by the appellant in Honeysett v The Queen[11] that in order to contribute a body of specialised knowledge there must be an independent means of gauging the reliability and validity of an opinion based on the knowledge, which the court in that case did not need to decide.[12] However, there are differences. First, I do not accept that if Ms Cheong-Wing made an informed judgment based on her knowledge and experience, that this deprived her of the capacity to form an opinion. In a case such as the present an opinion is an informed judgment based on facts, scientific principles, scientific knowledge and practical experience and training. After all, that is the essence of an opinion. The difference between the opinion and the matters taken into account to form the opinion is well recognised. In Dasreef Pty Ltd v Hawchar[13] the Court, after accepting that the admissibility of opinion evidence is to be determined by reference to the provisions of the Uniform Evidence Act rather than attempts to parse and analyse particular statements in decided cases divorced from the context in which those statements were made, said:
Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita,[14] that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is an expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to facts assumed or observed so as to produce the opinion propounded.
It was not contended by Mr Read SC that Ms Cheong-Wing’s evidence did not comply with this formulation. Rather, the complaint was that her opinion was based on an assumption that the number of contributors was four and not five which was not supported by the literature and the Lab’s own valuation studies. Mr Read SC submitted:
(1)Ms Cheong-Wing conceded that the validation studies do not provide a published error rate when determining the NoIs from a mixed sample containing trace contributors when the number of contributors is believed to be at least four.
(2)No level of confidence could be given that the number of contributors exceeded four, except in general terms.
(3)There is no scientific literature which specifically supports the holistic approach.
(4)There is no way of testing the assumption that there were only four contributors scientifically.
(5)The formula suggested in the Curran and Buckleton paper (2014) was not adopted.
I accept the propositions by Mr Read SC except proposition (4) but in my opinion, even if all of the propositions are accepted, this does not mean that Ms Cheong-Wing’s opinion is inadmissible if it otherwise complies with s 79(1), which in my opinion it does. So far as proposition (4) is concerned, the assumption is capable of being tested. Indeed Mr Read SC attempted to do so in this case, by reference to the very factors which Ms Cheong-Wing based her opinion on. To give some examples, Ms Cheong-Wing was able to demonstrate by reference to the number of alleles which matched the accused that there was a match at every locus, except in one case there was drop out of an allele which had been verified by previous testing used by PP21. Secondly she was able to demonstrate by reference to the charts produced, that there was no indication of a fifth contributor. Thirdly, she was able to demonstrate the presence of the accused’s alleles at the SE33 locus. Counting of the number of alleles and peak heights was also possible by reference to the charts produced. In other words, all, or nearly all of the factors taken into account by Ms Cheong-Wing were capable of independent verification. Indeed, her evidence was that in every case, each sample had been independently verified by another scientist in the Department, and that this was routinely done. In my opinion the evidence in this case and the opinion on which it is based, does not lead to an ipse dixit. As the Court of Appeal in Tuite v The Queen found, s 79(1) of the Act does not itself establish a standard of evidentiary reliability.[15]
In my opinion the evidence is admissible.
Should the evidence be excluded?
Mr Read’s alternative position was that I should exclude the evidence under s 137 of the Uniform Evidence Act on the basis that the probative value is outweighed by the danger of unfair prejudice to the defendant.
In assessing the probative value of the evidence I must assume that the jury will accept the evidence completely in proof of the facts stated. There is no weighing of reliability and credibility of the evidence.[16] If accepted, the evidence will prove that at some time in the past which cannot be determined, the accused came into contact with the glad wrap and the cryovac in which the drugs were wrapped. By itself that does not prove that the accused had anything to do with the drugs, the subject of this charge. It is a piece of circumstantial evidence, albeit a strong piece of circumstantial evidence, from which, together with other evidence to be led at trial of a circumstantial nature, the jury will be asked to find that the accused took part in the supply of the methamphetamine. It has significant probative value, not only because the Crown concedes that without this evidence, it is likely that the Crown will enter a nolle prosequi, but because it has the capacity to strongly suggest a connection between the accused and the drugs, especially when viewed in the context of the other evidence to be led and from which a conclusion of guilt might be inferred.
The second question is whether admission of the evidence will produce a danger of unfair prejudice to the accused. Mr Read SC postulated two possible dangers: First, it was put that the jury may find the DNA evidence confusing to the extent of not being able to resolve the issue to the criminal standard. Secondly, it was put that there was a real risk that the jury will misuse the evidence working from the circumstantial evidence to the DNA conclusions rather than by an analysis of the competing expert evidence to resolve the issue of the presence of the accused’s DNA on the samples. In R v Tuite[17] Emerton J had to consider a similar problem. In that case too, the DNA evidence was not the only evidence, but the other evidence would not be sufficient to convict. Her Honour said:
[121]… The DNA evidence is therefore ‘front and centre’ in this case, and I must carefully consider whether, to use the words of Hunt J in R v Elliott, it creates a ‘misleading or confusing impression’. In other words, I must consider whether there is a danger that jurors will be bamboozled by the evidence and simply seize upon the large numbers in the likelihood ratios as conclusive of guilt.
[122]The mere fact that expert evidence deals with difficult and highly technical subject matter does not, in itself, constitute unfair prejudice to the accused. However, if the DNA evidence were simply too complex for a jury to comprehend beyond its conclusions (the very large likelihood ratios), such incomprehensible complexity might amount to very real prejudice. It is important that the jury understand the testing of the conclusions in cross-examination so that they do not misjudge the weight to be given to the likelihood ratios or adopt an illegitimate form of reasoning regarding their significance based on the appearance of scientific credibility.
In making this assessment, s 137 the Uniform Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with s 137.[18] The manner in which the evidence was led before me is not a useful guide as to how it will be led before the jury. Basic information as to STRmix and short random repeat technology was not led, the parties by agreement being content to rely on the factual findings of the trial judges in DDP v Tuite[19] and R v Karger.[20] Also, apparently by agreement, the defence led its evidence first, rather than the other way around, which as it turned out, did not assist in making the issues any clearer. In fact, it was not at all clear to me that the real issue concerning the question of the admissibility of the opinion evidence relating to the number of contributors related to Ms Cheong-Wing’s ability to give evidence about that topic as expert opinion evidence until well into the hearing.
Having said that, on a careful consideration of the evidence I have no doubt that if it is carefully led at trial in the right order, and if led logically and sequentially by the prosecutor, no prejudice will arise. No doubt the jury will be assisted by visual aids, which I hope will be more readable than the ones presented to me, and I expect that this will be done.
Any perceived prejudice that might be perceived can be adequately addressed by appropriate directions to the jury.
In my opinion any prejudice to the accused is slight and does not outweigh the probative value of the evidence.
Tendency Evidence
In addition to the evidence referred to previously in paragraphs [4] – [11] and the DNA evidence relied upon, the Crown intends to lead the following evidence at trial. It is not in contention that much of this evidence, if proved, is admissible and relevant as circumstantial evidence, although there is objection to the admissibility of the post-offending conduct (i.e. the events after May 2015).
·Evidence of the accused’s bank records which show that the accused received large cash deposits into a retirement access plus cheque bank account with St George Bank between 20 January 2015 and 12 May 2015, and a further $500 cash deposit on 25 May 2015. During this period the accused was in receipt of Centrelink Newstart benefits. The period coincides with the seizure of the traffickable quantity of methamphetamine and the $33,900 in cash at 15/17 Dinah Court, Stuart Park referred to previously.
·Evidence that the accused has significantly timed telephone contact with Orrell, Ainslie and Thew between 2 April 2015 and 29 May 2015.
·On 26 April 2015 the accused used his credit card to pay for Kevin Tabone to fly on a Qantas flight from Sydney to Darwin.
·On 28 April 2015 the accused used his credit card to pay for Kevin Tabone to fly on a Virgin flight from Darwin to Sydney.
·The accused used his credit card to pay for a flight from Sydney to Darwin on 22 May 2015.
·The flight was booked in the name of Christopher Loven, left Sydney at 8:10 pm and was due to arrive in Darwin at 12:20 am.
·The accused’s mobile was off during the flight but was active again from 1:53 when he phoned Orrell twice and then a short time afterwards, Ainslie.
·On 11 May 2016 a boarding pass for a person in the name of Angelina Smith was sent to the accused’s phone.
·An hour later full details relating to a person by the name of Angelina Smith was sent to the accused’s phone.
·Police spoke to staff at Zen Apartments and were told that on 12 May 2016 the accused stayed at the Zen Apartments in Darwin. He stayed in a room booked under his name with one other person.
·On 18 July 2016 a person saved in the accused’s phone as “green frend” sent the accused a text asking him the price of methamphetamine, “how much for the full club sammich they selling for pub food these days?” and then a further text “I’d probably get two so I can take home”.
·On 24 July 2016 a person saved in the accused’s phone as “green frend” sent the accused a text asking him the price he is selling methamphetamine, “how much you knocking at halves these days?”.
·In late July 2016 a person saved in the accused’s phone as “Bones” sent the accused a text asking him for “puff” which the Crown says is a reference to methamphetamine.
·On 3August 2016 the accused sent a text to a number saved in his phone as “Keven” the date of birth and address of Judd Reynolds.
·On 3 August 2016 Jetstar emailed boarding passes for Brock Taylor (the name on the ticket Dagger used to travel to Darwin when he was arrested at the airport on 4 August 2016) and a person called Judd Reynolds.
·The accused travelled to Darwin on Jetstar flight and when arrested at Darwin Airport had a Jetstar ticket in the name of Brock Taylor on his person.
·The accused also had in his possession a notebook which the Crown says was a drug ledger.
The Crown seeks to rely on the last two items as tendency and coincidence evidence because:
The preparedness of the accused to fly to Darwin on a ticket in someone else’s name on both 22 May 2015 and 3 August 2016, in circumstances where the accused had also demonstrated an involvement in arranging travel to Darwin for other persons (either in conjunction with flights taken by him or separately), was strongly consistent with the accused travelling to Darwin for drug-supply-related “business” (airline records indicate that the accused travelled in his own name when returning to Sydney from Darwin); and
The ledger document found in the possession of the accused at the time of his arrest at Darwin Airport on 4 August 2016 was similar to the ledger seized from the accused by Sydney Police on 25 July 2013, and was strongly consistent (especially when considered in conjunction with other circumstantial evidence, including references to drugs in the material downloaded from one of the accused mobile phones at the time of his arrest) with the accused still being actively engaged in drug dealing.
The Crown’s submission in respect of the items referred to in paragraph [46] need to be considered also in the context of the following additional evidence which the Crown seeks to lead at trial, which would not otherwise be admissible, as tendency and coincidence evidence, (hereinafter referred to as “the New South Wales evidence”):
(1)In June 2005, the accused was seen by police in a vehicle at a location in Sydney which is a known location on police indices for the supply of dangerous drugs. Police stopped the accused in his vehicle and upon a search of his person and vehicle police located methamphetamine, cash and other items indicative of drug manufacture. Police subsequently searched the premises where the accused was renting a room and located chemistry related items and methamphetamine. The items found indicated the production of dangerous drugs was occurring at the premises. The accused was charged and in 2007 pleaded guilty to supplying a prohibited drug and manufacturing a prohibited drug.[21]
(2)The accused leased premises from January 2009 until October 2010. The owners of the premises conducted an inspection in July 2009. During the inspection they noticed a room had been built in the back of the shed. The shed had a mezzanine level and there had been a hole cut out of the mezzanine level but there was nothing connected to it. The owners had not been consulted about the building of this room at the back of the shed. On 14 October 2010 an explosion occurred at the shed where the accused suffered significant burns to his body. The shed was destroyed and another person died as a result of injuries suffered from the explosion. The accused later pleaded guilty to the manufacture of a commercial quantity of a prohibited drug (pseudoephedrine). The accused has not yet been sentenced for this offence.
(3)In July 2013 the accused was driving in the Surry Hills area in Sydney when he was stopped by police. A search of his person and the vehicle located the following items:- electronic scales, drug ledger, drug paraphernalia consistent with administering methamphetamine (glass pipes and high pressure lighters), mobile phones and methamphetamine.
(4)On 1 November 2013 the accused was present in a unit in Sydney from which police had seen two persons leave. A search of these two persons, Nicholas Koutzelas and Anthony Silva, revealed they were in possession of dangerous drugs. Whilst police were searching the two persons, the accused and a female left the unit into the hallway. They were directed by police to not move, however the accused and the female returned to the unit. Later the female re-emerged from the unit and was asked by police where the accused was. She stated she was the only one in the unit. A subsequent search by police of the outside premises of the unit block found the accused hiding under a vehicle parked on the street. He had two broken ankles. Directly above the accused was a power lead which had been attached to the handrail of the unit the accused had earlier been seen in.
(5)The following day police executed a search warrant at the residential premises of Nicholas Koutzelas. The search revealed a secured room under the house that appeared, based on the items found by police, to have been used as a clandestine drug laboratory to manufacture dangerous drugs. In an interview with police, Koutzelas stated he subleased the secured room to the accused and he was aware it was being used for the manufacture of dangerous drugs. Police located steroids and Demazin. The main chemical in Demazin is pseudoephedrine sulphate. Police also located a number of personal papers in the name of the accused in the secure room as well as in a locked black safe.
According to both the Tendency Evidence and Coincidence Evidence notices the relevant facts in issue which the Crown seeks to prove by leading this evidence is:
(a)whether, in the period between 1 January 2015 and 28 May 2015, the accused was involved in the supply of dangerous drugs to, by or with Orrell and Ainslie;
(b)whether the accused’s DNA was on cryovac and glad wrap packaging containing the 191.39 grams of methamphetamine the subject of the charge against the accused. As to this, counsel for the Crown, Mr Dalrymple, conceded that the evidence at its highest could not lead to such a conclusion, which could only be proved by acceptance of the Crown’s DNA evidence; and
(c)whether there was a reasonable possibility of an innocent explanation for the accused’s DNA being on the packaging material, other than because of his involvement in the supply of those drugs to, by, or with Orrell and Ainslie.
The tendency sought to be proved is to act in a particular way, viz:
(a)engage in the supply of methamphetamine (having regard to the definition of “supply” set out in the Act);
(b)to be involved in the production and manufacture of methamphetamine;[22]
(c)the obtaining of monies received from the supply of methamphetamine;
(d)preparation of informal ledger documents of his activities of supplying dangerous drugs; and
(e)to travel interstate under false names.
The tendency sought to be proved is to have a particular state of mind, namely the willingness and interest in being involved in the production and supply of methamphetamine (including the supply of methamphetamine to and by Orrell and Ainslie).
The Tendency Rule
The tendency rule, as expressed in s 97 of the Uniform Evidence Act, is to exclude evidence of the conduct of a person to prove that the person had a tendency to act in a particular way, or to have a particular state of mind unless, the notice requirements of s 97(1)(a) have been complied with, and (b) “the court thinks that the evidence will, either by itself or having regard to the other evidence or to be adduced by the party seeking to adduce the evidence, have significant probative value”.
There is no question in this case that the notice requirements have been complied with.
The first question is whether the evidence of the accused’s past conduct shows that he has a tendency to act in any of the ways referred to in the tendency notice.
As Grant CJ said in The Queen v Grant[23] “there does not need to be absolute conformity between the incidents relied upon for the tendency evidence – either between themselves or with the conduct comprising the offence charged”. The existence of similarity is not a necessary requirement. In some circumstances, similarity may be relevant to the assessment of the probative value of the evidence, but that is not a necessary requirement to establish the relevant tendency.
Another consideration is this. If the evidence is admissible because it is relevant in the sense that, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceeding, it is admissible except as otherwise provided by the Uniform Evidence Act: see ss 55(1) and 56(1). Consequently a piece of circumstantial evidence, if it is admissible, does not need to rely on tendency reasoning or coincidence reasoning to become admissible. So if the evidence was admitted to show that the accused in fact acted in a particular way or in fact had a particular state of mind which is relevant to prove a fact in issue in the case, it is not tendency evidence or coincidence evidence. However, if the evidence is not otherwise admissible, or, if admissible for other purposes, it may not be used as evidence of tendency reasoning or coincidence reasoning unless it conforms to the requirements of s 97 or s 98.[24]
The evidence sought to be adduced by the Crown, on a proper characterisation of it, may be evidence of conduct on the part of the accused which would establish that he had a tendency to engage in the possession, production, manufacture or supply of methamphetamine. It may also show a tendency to engage in the preparation of informal ledger documents of his activities of supplying dangerous drugs, although there is no evidence relating to his having had such a ledger found in his possession on the occasion the subject of the charge. It is difficult to see how travelling under false names is logically connected to a tendency to supply drugs, except as another piece of circumstantial evidence already relevant to the charge. Similarly the receipt of large sums of money does not establish by itself that he had a tendency to supply drugs. There may be any number of reasons why he travelled under a false name or received large amounts of cash whilst also receiving Centrelink benefits. However, there is a logical connection between his other past conduct relating to methamphetamine, its manufacture and supply. The logic is that on occasions in the past, the accused acted in a particular way (possessed methamphetamine for the purpose of supply; manufactured methamphetamine for the purpose of supply). It can be concluded therefore that he had a tendency to act in accordance with that tendency.
The next step in the process is the extent to which that evidence is probative of the conclusion that he was involved in the supply of methamphetamine on this occasion. That question is to be answered by reference to whether the evidence, will, either by itself, or having regard to the other evidence to be adduced, have significant probative value. Whether the evidence significantly bears on the facts in issue is a question of fact and degree, which will be influenced by the nature of the fact to be proved or disproved. In conducting this evaluation I must assume that the evidence will be accepted by the jury.[25] So in this case, the evaluation of the probative value is directed to the capability of the tendency evidence to bear upon the probability that the accused was involved in the supply of methamphetamine between 1 January 2015 to 28 May 2015.
In The Queen v Grant,[26] Grant CJ said, citing CEG v The Queen[27] that:
The relevant test is whether “the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in issue. Otherwise, the evidence does no more than suggest that the accused is the sort of person who is more likely to commit this kind of offence, and is no more than “rank” propensity evidence.
In other words, there must be something in the tendency evidence, when considered with the rest of the evidence in the case, to elevate the tendency evidence beyond that of mere propensity evidence, before it can be said to have probative value. In assessing the degree of significance of the probative value, the degree of specificity of the conduct alleged to evidence tendency or coincidence is important.[28] Tendency evidence will usually depend on establishing similarities in a course of conduct, even though s 97, by contrast with s 98, does not refer to elements of similarity.[29] However, it is not necessary that the incidents relied upon as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency to act in a particular way or to have a particular state of mind that is closely similar to the act or state of mind of the accused; or that there be a striking pattern of similarity between the incidents relied upon and what is alleged against the accused. However, generally speaking, the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.[30]
What are the features of the tendency evidence which bear upon the question of its probative value?
The matters which bear on the question of whether the accused was involved in the supply of drugs on this occasion are:
·the history of possession of methamphetamine and its manufacture and its supply spread out over a period of 10 years;
·the connection between the accused and the possession of methamphetamine by Orrell and Ainslie in 2015;
·the DNA consistent with being that of the accused found on the wrapping of the drugs found in Orrell and Ainslie’s possession in 2015;
·the connection between the accused and Orrell and Ainslie in 2015 as shown by the telephone records;
·the probability that the money found in 2015 was the accused’s money from the sale of methamphetamine; and
·the fact that the accused travelled to Darwin under a false name at relevant times in 2015.
Counsel for the accused submitted that the appropriate description of the alleged offending is one of the interstate commercial supply of methamphetamine by the accused to his accomplices in Darwin. There is no alleged evidence that on the occasions in 2015 or 2016 the drugs were the product of a manufacturing process by him, or even by anyone in Sydney. It was put that the evidence does not show therefore a tendency of the type of behaviour the subject of the indictment. No particular submissions were raised by counsel for the Crown to show how the evidence had any probative value.
I accept that in relation to the events relied upon prior to May 2015 the evidence does not support a finding that the accused had supplied methamphetamine interstate to Orrell and Ainslie. I do not think that the fact that on the occasion the subject of the indictment that the supply of methamphetamine may have taken place in Darwin, rather than Sydney, is of any significance affecting its probative value. However, the earlier supplies in 2005 are not only a relatively long time ago, but as was submitted by Mr Read SC involved only small quantities of methamphetamine, and were not connected in any way with Orrell and Ainslie. Looked at separately, that evidence shows no more than that it is “rank” propensity evidence. There is nothing peculiar or common or even similar in the features of that supply to imply that because the accused supplied the drugs on that occasion, he probably supplied them to Orrell and Ainslie in 2015.
The same problem arises with the rest of the evidence relating to the accused’s drug activities in Sydney. In so far as the accused manufactured methamphetamine in Sydney, there is no evidence that he manufactured the drugs supplied in 2015 or that he supplied the drugs he manufactured in Sydney in the past to others. Perhaps an inference can be drawn that his purpose in manufacturing the drugs was to do that, but the evidence falls short of proving a supply, which is the relevant act in question.
In my opinion the evidence has either no probative value, or it is so low that its probative value is outweighed by the prejudicial effect its admission would have on the accused.
In relation to supply on 25 July 2013, that evidence is not similar in any meaningful way to the supply the subject of the charges either. It is the kind of evidence which is common to most small-time drug dealers. There is nothing that I can see which elevates it beyond mere propensity evidence.
Before leaving this topic I should record that I have also considered the combined weight of the evidence relied upon. What it shows is that he has a tendency to be involved as a small time supplier of methamphetamine and to manufacture methamphetamine. But this is very different from the kind of supply involved in this case. There is no evidence that, in 2015, the accused was found in possession of methamphetamine, or that he had in his possession deal bags, scales, drug ledgers, apparatus for the manufacture of drugs, precursors for the manufacture of illegal drugs or other drug paraphernalia.
So far as the post-offending conduct in 2016 is concerned, in my opinion all it goes to show is that the accused’s behaviour in 2016 was consistent with him being then involved in the supply of illegal drugs, including methamphetamine. It bears similarity to the offending on 25 July 2013 because there was a drug ledger found on the accused’s person in 2016 which is similar to the ledger found on his person in 2013. But there was no such ledger found which relates to his activities in 2015. Consequently, there is no connection logically between that conduct and the conduct which is the subject of the indictment, and is therefore inadmissible as being no more than propensity evidence. In my opinion it is inadmissible. Even if there is a similarity in the sense that he travelled to Darwin under a false name, the probative value of that evidence is so low that the prejudicial effect of the evidence outweighs it.
For the same reasons, the evidence, in so far as it relates to proof of the accused’s state of mind, has little or no probative value and is rejected.
Coincidence Evidence
For the same reasons, the evidence of the events in New South Wales are not sufficiently connected to the events the subject of the indictment to be admissible as coincidence evidence. I would reject that evidence as coincidence evidence.
In conclusion the tendency and coincidence evidence sought to be relied upon is rejected.
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[1] The Misuse of Drugs Act has been substantially amended since 2015.
[2] The original testing was done by using the PP21 Kit. 04A and 04B were re-amplified by using GlobalFiler.
[3] See .
[4] (2011) 243 CLR 588 at [31] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[5] i.e., the NoIs.
[6] “Drop out” refers to an allele which is in fact in the DNA of a known individual not being recorded by the software for some reason.
[7] MD Coble, J Bright, JS Buckleton and JM Curran, Uncertainty in the number of contributors in the proposed new CODIS, Forensic Science International: Genetics 19 (2015) 207 at 209.
[8] See .
[9] JM Curran and J Buckleton, Uncertainty in the number of contributors of the European Standard, Forensic Science International: Genetics II (2014) 205 at 206
[10] (2014) 253 CLR 122 at 131 [23]
[11] (2014) 253 CLR 122 at 136 [38].
[12] Ibid, at 137 [42].
[13] (2011) 243 CLR 588 at [37] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[14] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
[15] [2015] VSCA 148 at [75].
[16] IMM v The Queen (2016) 90 ALJR 529 at 539 [52].
[17] [2014] VSC 662 at [121]-[123]. Upheld on appeal, Tuite v The Queen [2015] VSCA 148 at [126].
[18] IMM v The Queen (2016) 90 ALJR 529 at 579 [54].
[19] [2014] VSC 662 at [19]-[29].
[20] (2001) 83 SASR 1 at [44]-[65].
[21] I understand that it is not proposed to lead evidence of the conviction.
[22] “Produce” is defined by s 3(1) of the Act to mean: (a) prepare, package or produce; (b) offering to prepare, package or produce; or (c) doing or offering to do an act preparatory to, in furtherance of, or for the purpose of, preparing, packaging or producing. “Manufacture” is defined by s 3(1) of the Act to mean any process by which the substance or thing is: (a) produced, other than by the cultivation of a plant; or (b) extracted or refined; or (c) transferred into a different substance.
[23] [2016] NTSC 54 at [34].
[24] Elomar & Ors v R [2014] NSWCCA 303; 316 ALR 206 at [358]-[360].
[25] IMM v The Queen (2016) 90 ALJR 529.
[26] [2016] NTSC 54 at [34].
[27] [2012] VSCA 55 at [14].
[28] Saoud v R [2014] NSWCCA 136 at [36]
[29] Ibid, at [44]
[30] BP v R [2010] NSWCCA 303 at [508]; Saoud v R [2014] NSWCCA 136 at [47]
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