Vyater v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0016

YAN VYATER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, TATE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2019, 25 February 2020
DATE OF JUDGMENT:	27 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 32
JUDGMENT APPEALED FROM:	[2019] VCC 2192 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Trafficking methylamphetamine, trafficking ephedrine, possession of substances, materials and equipment for the purpose of manufacturing drug of dependence – Circumstantial case – Expert evidence – DNA evidence on glove – Low likelihood ratio – Presentation of DNA evidence – Juror understanding of probabilistic evidence – Whether probative value of evidence outweighed by risk of unfair prejudice – Probative value high – Any risk of prejudice cured by jury directions – No error by trial judge in ruling evidence admissible – R v Doheny and Adams [1997] 1 Cr App R 369, R v Berry (2007) 17 VR 153, [2007] VSCA 202, R v Guingab [2010] VSC 256 considered – Evidence Act 2008 s 137.

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of trafficking ephedrine by preparing it for manufacture of methylamphetamine – Whether charge invalid at law – Extended definition of ‘trafficking’ – ‘Preparation’ form of trafficking confined to preparation of drug for trafficking in that drug – Appeal allowed – Conviction set aside – Substituted conviction for possession of substance for purpose of trafficking – Drugs, Poisons and Controlled Substances Act 1981 ss 70, 71AA, 71AC, 71A.

CRIMINAL LAW – Appeal – Conviction – Evidence – Police interview – Applicant gave address prior to caution – Obligation to administer caution before ‘questioning’ – No error in admitting evidence – Crimes Act 1958 s 464A, Evidence Act 2008 s 139.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC with Mr L Richter	Slades & Parsons Solicitors
For the Respondent	Mr J McWilliams with Mr T Bourbon	Mr J Cain, Solicitor for Public Prosecutions

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MAXWELL P
TATE JA
WEINBERG JA:

Summary

The applicant was convicted by a County Court jury of three drug-related offences, as follows:

·trafficking in methylamphetamine (by manufacture);[1]
·trafficking in a commercial quantity of ephedrine (by preparing it for use in the manufacture of methylamphetamine);[2] and
·being in possession of substances, materials and equipment for the purpose of manufacturing a drug of dependence.[3]

A total effective sentence of 7 years and 6 months’ imprisonment was imposed, with a non-parole period of 4 years.[4]

[1]Drugs, Poisons and Controlled Substances Act 1981 s 71AC (‘DPCS Act’).

[2]Ibid s 71AA.

[3]Ibid s 71A.

[4]DPP v Vyater [2019] VCC 2192 (‘Reasons’).

The applicant now seeks leave to appeal against both conviction and sentence. The principal grounds of appeal against conviction concern the admissibility of certain DNA evidence and the validity in law of the charge of trafficking in ephedrine. For reasons which follow, we would dismiss the challenge to the DNA evidence but uphold the challenge to the conviction for trafficking in ephedrine. That conviction will be set aside and, in its place, the applicant will be convicted of being in possession of a substance for the purpose of trafficking in a drug of dependence.[5]
[5]DPCS Act s 71A.

The DNA evidence in question concerned a glove found in a plastic tub together with equipment which had been used for the manufacture of methylamphetamine. In the conventional manner, the evidence was presented in the form of a likelihood ratio. The likelihood ratio was unusually low. In the opinion of the witness, it was 26 times more likely that the DNA found on the glove came from the applicant than from a person selected at random. Ratios of this kind are more commonly expressed in multiples of millions or billions.

The submission for the applicant was that the evidence was, at best, of low probative value and that — because of the so-called ‘CSI effect’ — there was a substantial danger of unfair prejudice which could not be cured by judicial direction. As will appear, we are satisfied that:

(a) the significance of a ’26 to 1’ ratio was well within the capacity of the jury to evaluate;

(b) the evidence was accurately described by the expert witness as providing ‘moderate support’ for the proposition that the DNA came from the applicant;

(c) in the context of the prosecution’s circumstantial case, the DNA evidence had substantial probative value; and

(d) any risk of unfair prejudice was comprehensively addressed by the judge’s careful directions.

As to the ephedrine charge, the definition of ‘traffick’ in the DPCS Act includes as alternatives both ‘manufacture a drug of dependence’ and ‘prepare a drug of dependence for trafficking’.[6] The case against the applicant was that he had trafficked in ephedrine by preparing ephedrine for the manufacture of methylamphetamine, manufacturing methylamphetamine being a form of trafficking of methylamphetamine. It was alleged that he thereby satisfied the definition of ‘preparing a drug for trafficking’. On the proper construction of the definition, in our view, the ‘preparation’ form of trafficking is confined to preparation of a drug of dependence for trafficking in that drug of dependence. The defence objection to the ephedrine charge should therefore have been upheld at the trial.
[6]Ibid s 4 (definition of ‘traffick’).

Because of the quashing of the conviction on that charge, and the substitution of the charge of possession of a substance for the purpose of trafficking, it is necessary to resentence the applicant. We would sentence him as set out in the table in para 125, resulting in a total effective sentence of 5 years and 6 months’ imprisonment. We would fix a new non-parole period of 3 years.

The circumstances of the offending

Early on the morning of Monday 15 August 2016, police executed a search warrant at 45A Industrial Drive, Braeside, an upstairs office unit above a row of storage garage units. The upstairs unit included a kitchen/lounge area, a bathroom and a second room set up primarily as a bedroom. When police entered the premises, the applicant was in the upstairs lounge/kitchen area, in the company of a female acquaintance (‘SM’).

Pieces of scientific glassware and other equipment used in the manufacture of methamphetamine were found on the kitchen benches. A bag of methylamphetamine was located on the coffee table in the lounge area. Against the wall, there was a set of storage shelves, in front of which were three plastic tubs and two backpacks. These contained further equipment for the manufacture of methylamphetamine and a copy of an instruction book for its manufacture.

In the bathroom was a large plastic carboy containing three layers of material. Analysis showed that the top two layers consisted of water and a solvent (Xylene) respectively. The bottom layer was 82 per cent pure ephedrine in solid form. Ephedrine was also found in a plastic bottle in the bathroom and in smaller amounts in the cupboards under the kitchen bench.

Further analysis showed the presence of between 604 and 821 grams of pure ephedrine. As the judge noted in his sentencing reasons, this represented between six and eight times the commercial quantity of ephedrine in its pure form. The judge also noted that the amount of ephedrine found would have produced between 4.5 and six times the commercial quantity of pure methylamphetamine.[7]
[7]Reasons [18]–[19].

A search was also conducted of one of the storage sheds behind the office unit. In a trunk at the rear of that shed were further pieces of equipment for manufacturing methylamphetamine. Stored on the applicant’s phone were documents about the manufacture of methamphetamine.

The applicant was the lessee of both the residential unit and the storage shed. He used both of the facilities for the storage of equipment which he used in his business as a plumber.

The prosecution case led expert evidence that the equipment found comprised two complete methylamphetamine laboratories, and that all the ingredients necessary for manufacture were present. It was alleged that the applicant had used the laboratory equipment to manufacture the methylamphetamine which was found at the premises.

The Crown case was circumstantial, based on evidence that:

·the applicant was the lessee and occupier of the premises;
·he was present early in the morning at the time of the police raid;
·at the time of his arrest, manufacturing equipment was openly visible in the upstairs room, including glassware on which traces of methylamphetamine were identified;
·further manufacturing equipment, including scientific glassware, was packed away in tubs (some of which were open) in the room where the applicant was found;
·there was a plastic press-seal bag of methylamphetamine on a table in the room where he was arrested;
·his fingerprint was on a baking dish that contained some methylamphetamine residue, and on a piece of scientific glassware in a trunk found in the storage shed;
·DNA material likely to have come from him was found on a mask on a table and on the glove referred to earlier, which was inside a closed tub containing manufacturing equipment;
·the equipment and chemicals (iodine, hypophosphorous acid and ephedrine) found at the premises were capable of having manufactured the methylamphetamine found, and could be used to manufacture more, including by the methods outlined in the documents found on the applicant’s phone; and
·in the days preceding the arrest, the applicant had been contacted by individuals apparently seeking to purchase methylamphetamine from him.

The applicant gave evidence in his own defence. He acknowledged that he was the lessee of both premises. He told the jury that he was a plumber by trade and had leased both of the premises for his business. He did not live there, he said, although he stayed there on occasion, particularly on weekends when he would regularly consume methylamphetamine.

The applicant told the jury that he had no involvement in the manufacture of methylamphetamine, although he was a user of the drug. He said he had recently become reacquainted with an old friend, James Kassoumov, who did not want to remain at his own residence because he was having conflicts with someone who lived there with him. Kassoumov was also a user of methylamphetamine. By the time of the trial, Kassoumov had died.

The applicant said that he had first allowed Kassoumov to store items in the storage shed and, later, had allowed him to move into the office unit as a residence. He said that, because his own phone had broken earlier in the year, Kassoumov had lent him a spare phone. When he had finally obtained a new phone for himself, he had backed it up from Kassoumov’s phone, with the result that documentation which had been on Kassoumov’s phone had been transferred to his own.

The applicant said that the week leading up to the execution of the search warrant had been extremely busy and stressful. He had used methylamphetamine several times and had hardly slept. He had not been upstairs in the office unit — which he still used to some extent to store his work equipment — since some time early the previous week.

The applicant said he had stayed at the office unit on the Sunday night after SM had injured herself earlier in the day. They had been to the hospital to attend to her injury, after which they had returned to the unit and had fallen asleep. He had not paid any particular attention to the items in the kitchen area or in the bathroom.

Grounds 1-3: providing name and address

At the commencement of the applicant’s record of interview with police, he was asked to give his full name and address. He gave his address as ’45 Industrial Drive, Braeside’. The interviewer then administered the standard caution, in response to which the applicant said that he would ‘like to remain silent for the remainder of the interview’.

Both before the judge and in this Court, counsel for the applicant submitted that adducing the evidence of his answer about his address had the effect of overriding his right to silence, which he had made clear he wished to exercise. Reliance was placed on s 139(1) of the Evidence Act 2008 (‘Evidence Act’), which provides as follows:

139 Cautioning of persons
(1)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.[8]

[8]Emphasis added.

As can be seen, evidence is deemed to have been obtained improperly if ‘before starting the questioning the investigating official did not caution the person’. The debate in this Court concerned whether asking the applicant to state his name and address amounted to ‘starting the questioning’. Accepting that a request for name and address was routine, and usually innocuous, counsel for the applicant maintained that it was nevertheless a ‘question’ for this purpose.

In addition to the deemed impropriety, counsel submitted, admitting the evidence created unfair prejudice. This was said to be so because the question and answer had the appearance of a formal administrative procedure, such that the jury might infer that the address which the applicant supplied was ‘his official, permanent residence’.

In our view, there is nothing in this point. As the respondent submitted, the complete answer is to be found in s 464A of the Crimes Act 1958, which governs the questioning of a person taken into custody. That section relevantly provides as follows:

464A Detention of person in custody
(1)Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a)released unconditionally; or

(b) released on bail; or
(c) brought before a bail justice or the Magistrates’ Court—

within a reasonable time of being taken into custody.
(2)If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a) inform the person of the circumstances of that offence; and
(b)question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

(3)Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.[9]

[9]Emphasis added.

As can be seen, sub-s (2) confers power on ‘an investigating official’ to question a person in custody in order to determine the involvement (if any) of the person in the offence for which he/she is in custody. Subsection (3) imposes the statutory obligation to administer the caution, which must be done before any questioning — ‘other than a request for the person’s name and address’ — commences.

Plainly, in our view, s 139(1)(c) of the Evidence Act must be read in the light of the terms in which the Victorian Parliament has imposed on investigating officials the obligation to administer the caution. Section 464A(3) makes clear that the questioning to which that obligation applies does not include a request for the person’s name and address. It follows that s 139(1) was not engaged.

The evidence of the applicant’s answer was clearly admissible as being relevant to a fact in issue, and it was of significant probative value. There was no danger of the jury giving the answer more weight than it deserved.

A related contention was advanced under ground 2, which concerned the prosecutor’s cross-examination of the applicant about the answer he had given. The applicant agreed that he had answered the interviewer’s question by stating his address as ‘45 Industrial Drive, Braeside’. As noted earlier, however, he had stated in evidence that Mr Kassoumov was residing at that address. The prosecutor put to the applicant that he had not said to the interviewing police that it was Kassoumov, not himself, who lived there. Defence counsel objected on the ground that it would undermine the applicant’s right to silence if it were suggested that he should have informed the police at that time about Mr Kassoumov being in residence. After discussion in the absence of the jury, the prosecutor did not pursue the question.

The following morning, however, defence counsel made application to the judge to discharge the jury. Accepting that the question had not been pursued, counsel maintained that the prosecutor’s assertion — that the applicant had not mentioned Kassoumov’s being in residence — might be taken at face value by the jury, such that

they will speculate on why it is that he didn’t tell the police that. It breaches his right to silence and it reverses the onus of proof. It puts the burden on him to have come up with an explanation at the time in a way that is impermissible.

The judge refused the application for a discharge.

Ground 2 contends that a substantial miscarriage of justice occurred ‘because the credibility of the applicant was unfairly undermined by the prosecutor reversing the onus of proof during cross-examination.’ Once again, in our view, this point is without substance. Once it is accepted that the evidence of the applicant’s answer to police about his address was properly before the jury, there was no unfairness in the prosecutor pointing out that the applicant had made no mention of Mr Kassoumov when giving that answer. As we have said, whether the applicant was living at the premises was a fact in issue and the prosecutor was entitled to test the version which the applicant gave in his evidence. No issue of onus of proof arose. This was, in our view, an unremarkable instance of a witness being asked about a prior inconsistent statement.

Ground 3 relied on the combination of matters raised under the first two grounds. It follows that ground 3 must also be rejected.

Ground 4: the admission of the DNA evidence

As noted earlier, the judge admitted expert evidence with respect to the DNA profiling of material found on one particular glove (‘the red glove’). The evidence was to the effect that the DNA material found on the glove was 26 times more likely to have come from the applicant than from a member of the population selected at random.

Defence counsel had submitted that the evidence should be excluded under s 137 of the Evidence Act, on the basis that its probative value was outweighed by the danger of unfair prejudice to the applicant. The judge refused to exclude the evidence. In reasons published subsequently, his Honour said that he was satisfied that the evidence had ‘some probative value’ when considered as part of the prosecution’s circumstantial case.[10] He was further satisfied that any risk of the jury adopting an ‘illegitimate form of reasoning or misjudgment in the weight to be given to the particular evidence’ could be addressed by directions which he would give them.[11] On that basis, his Honour concluded, the risk of unfair prejudice did not outweigh the probative value of the evidence.[12]
[10]DPP v Vyater (Ruling No 2) [2018] VCC 2070, [8].
[11]Ibid [9].
[12]Ibid.

When a ground of appeal against conviction complains that evidence should have been excluded under s 137, it is for this Court to decide for itself whether the section was engaged, such that the evidence was required to be excluded. It is necessary, therefore, to set out the evidence as it was presented to the jury. As will appear, this ground raises an important question about how jurors are to assess the weight to be given to an unusually low likelihood ratio of this kind.

The DNA evidence

The DNA evidence was given by an experienced forensic scientist from the Victoria Police Forensic Services Department. The witness (‘H’) held the position of forensic officer and case manager in the biological sciences group of that Department. In that capacity, she told the jury, she performed biological testing in the laboratory and at crime scenes. In particular, she performed statistical analysis and interpretation of DNA profiles.

At the beginning of her evidence-in-chief, H used a PowerPoint presentation to provide a general explanation of the nature of DNA and of DNA profiling. (We will refer to some aspects of this presentation later in these reasons.) Asked then to describe the DNA profile obtained from the red glove, H said that it was ‘a partial mixture of DNA, originating from three contributors’. Asked to explain what was meant by a ‘partial DNA profile’, H said:

The DNA profiles that we look at have 21 sites. If we don’t get a result at — at least one of those sites, that is what’s called a partial DNA profile.

H told the jury that, when the profile obtained from the glove was compared with the reference sample obtained from the applicant, the result was that the applicant was ‘not excluded as being a contributor to that DNA profile’. Asked then about the ‘statistical weighting by way of likelihood ratio’, H said:

The likelihood ratio showed … that the DNA evidence is 26 times more likely if [the applicant] and two others are contributors than if three unknowns are contributors.

H told the jury that, as a result of collaboration between experts in the field, a series of verbal equivalents had been developed to express the degree of evidentiary support respectively represented by different likelihood ratios. She identified them in ascending order as follows:

Likelihood ratio

Level of evidentiary support

1

Neutral

1–10

Slight support

10–100

Moderate support

100–1,000

Strong support

1,000–1,000,000

Very strong support

More than 1,000,000

Extremely strong support

It followed, H confirmed, that the DNA analysis provided ‘moderate support for the proposition that [the applicant] is a contributor’. She acknowledged that this was ‘on the lower end of the likelihood ratio evaluation’.

In cross-examination, defence counsel drew attention to two other items which H had tested. The first was a different glove, in relation to which H had concluded that no reliable profile could be obtained. She explained:

It was a very partial result … and there just wasn’t enough information there for me to be able to be confident in determining the number of contributors.

The second was the mask found on the coffee table, which had a mixed DNA profile from three contributors. As to one of the contributors, H confirmed, it was 100 billion times more likely that the applicant was the contributor than a person chosen at random.

Against that background, defence counsel asked H to explain to the jury why the red glove produced such a low likelihood ratio. She responded as follows:

[T]here’s a number of reasons … that the likelihood ratio could vary. Firstly, the DNA profile obtained was a partial DNA profile so there were some sites where we obtained no result. So when you’re looking at the likelihood ratio you cross multiply the frequency of occurrence across all of those 21 sites. So if you don’t have a result at some of those sites that multifactorial sort of — the multifactorial doesn’t occur so your value will be lower. It also depends, at the sites where that person does match … if those DNA types that are present are more common in the population then the likelihood ratio will be lower.

Defence counsel put to H that it was a ’26 to 1’ chance that it was the applicant’s DNA on the red glove rather than that of an unknown person. She agreed. This would mean, counsel then suggested, that if 100,000 people went through Flinders Street Station every day, then approximately 4,000 of them would give a similar DNA match. H agreed that this was so, and that this meant ‘in a sense’ that a little under a million people in Australia would return a similar profile.

In final address to the jury, the prosecutor explained that the Crown case was:

a circumstantial case, where we’re putting pieces of evidence together and asking you to draw inferences or conclusions from the evidence …

Counsel drew an analogy with a jigsaw puzzle:
where the pieces of evidence — there’s sufficient pieces of the jigsaw puzzle to paint a picture of the accused’s guilt beyond reasonable doubt. The pieces of evidence fit and it shows the accused’s guilt beyond reasonable doubt and from those pieces of evidence, put together as part of a jigsaw puzzle, are not in isolation.

In reminding the jury of the evidence relied on, however, the prosecutor made no mention of the DNA evidence with respect to the red glove. Submitting that ‘the DNA evidence’ tended to confirm that it was the applicant who was occupying the flat, counsel referred only to the evidence with respect to the mask on the coffee table. The only other reference to the DNA evidence was in relation to charge 2 (concerning ephedrine), where the prosecutor said that he relied on the same circumstantial evidence as in relation to charge 1, which he summarised as comprising the applicant’s

occupation of the unit 45, his fingerprints found on scientific items, his DNA found on items, the respirators.

In his final address, defence counsel acknowledged that the evidence given by H was ‘real science’. He conceded that the mask ‘plainly’ belonged to the applicant, given the very high likelihood ratio. Defence counsel then drew specific attention to the evidence concerning the red glove. Counsel highlighted the fact that the likelihood ratio ‘was 26, not 100 billion’, and reminded the jury of H’s acceptance that there were approximately a million people in Australia — and 4,000 people passing through Flinders Street station on any given day — whose DNA would match that which was found. His submission to the jury was that they ‘couldn‘t possibly be satisfied that that likelihood ratio of 26 is enough’.

The judge gave the jury comprehensive directions in relation to the DNA evidence. (On the appeal, senior counsel for the applicant confirmed that no complaint was made about the adequacy of the directions.) His Honour reminded the jury of H’s evidence ‘comparing the likelihood that the DNA came from the accused man compared to a randomly selected person from the Caucasian population of Australia’. His Honour said that, according to H:

The DNA evidence provided moderate support that the accused man was a contributor to that DNA profile, which is a three person profile, and she expressed it as a likelihood ratio. It was 26 times more likely that it was him than the randomly selected Caucasian male …

His Honour continued:

If you accept her evidence, this does not necessarily mean that Mr Vyater must be guilty of the offences charged. It is just one piece of circumstantial evidence and must be considered in the light of the other evidence in the case. You will remember I have told you about circumstantial evidence.
It is also important that you recognise the limitations of DNA evidence, the so-called ‘CSI effect’.
You will recall [H] gave evidence that she tested the accused’s DNA sample, and the samples obtained from the left-hand glove, on the respirator on the kitchen — coffee table, and the one in the storage facility, and she found partial mixed DNA profiles. And she said, in relation to the glove, it provided moderate support. And in relation to the — she mentioned 100 billion and provide extremely strong support in relation to the respirator found in the storage unit.
So that is her evidence. Now, I just want to give you this direction: people sometimes think — jurors sometimes think that such evidence can prove who committed the offence. This is wrong. Evidence that Mr Yan Vyater could not be excluded as the person responsible for contributing to the mixed sample found in the glove and on the two respirators only proves that Mr Yan Vyater could have been the person whose DNA had come into contact with that item.
To address the possibility that someone else was responsible for the DNA on the left glove and the two respirators, [H] also gave evidence about the probability of observing this DNA profile if the DNA had come from a random member of the population who was not related to the accused.
And as I said, in relation to the left glove, she gave a likelihood ratio of 26 times more likely that it was the accused and two others than if three unknown contributors are pulled off the Caucasian population. So the respirators, it was expressed as a likelihood ratio of 100 billion times more likely.
Focusing on the glove, on the left glove. The chemical glove. This does not mean that Mr Yan Vyater is 26 times more likely to have committed the offence than a person chosen randomly. It simply means that roughly one person out of 26 has a DNA profile that matches the DNA on the left glove sample. This means, in a population like Australia, 25 million people, about a million people could have been responsible for that DNA profile that was picked up in the left glove.
Or, as [defence counsel] got out of [H], if 100,000 people are going through the turnstiles at Flinders Street in peak hour, each day, 4,000 of them, one in 26, would have the same profile. So you have got to be careful the way you use the evidence.
You must consider all the evidence in this case and decide whether it is possible that someone other than the accused could have been responsible for each of the forensic samples. And the defence argue that if you accept that the left glove and the respirators do contain his DNA, this does not prove that he was using the glove or the respirators when operating the laboratory. The evidence will only be relevant if you find that Mr Yan Vyater’s DNA came onto the various items in incriminating circumstances.
Now, [H] could not give any evidence about that. She just examines the DNA sample. The prosecution case is that DNA material supports and links the accused man to the items used in the course of manufacture: in the glove, the industrial glove, because they are dealing with chemicals, and the respirators. The prosecution disputes that the accused man could have come into contact with the items in innocent circumstances.

On the appeal, counsel for the applicant submitted that the DNA evidence with respect to the red glove was of low probative value and that there was a high risk of unfair prejudice, that is, of the evidence being given more weight than it warranted.[13] Both at trial and on the appeal, counsel placed particular reliance on the decision of T Forrest J in R v Guingab.[14]
[13]See Tuite v The Queen (2015) 49 VR 196, 200 [11]; [2015] VSCA 148.
[14][2010] VSC 256.

In that case, the accused was charged with murder. The Crown case was circumstantial. The prosecution sought to rely on evidence said to show that the accused’s DNA had been found on rope used to bind the plastic bags which contained the deceased’s body. Three likelihood ratios were to be put forward in the evidence, based on different population databases. They were, respectively, 38 to 1, 48 to 1 and 63 to 1.

The judge noted that the likelihood ratios were ‘expressed in double figures rather than in billions’ and that the ultimate opinion of the Crown expert was that the evidence provided ‘moderate support’ for the proposition that the accused was a contributor to the DNA.[15] By contrast, he noted, there would be evidence in relation to DNA sample taken from a black thong, where the likelihood ratio was 110 billion to 1.[16]
[15]Ibid [53].
[16]Ibid [20], [53].

His Honour ruled that the DNA evidence concerning the rope must be excluded under s 137. The relevant part of his Honour’s reasons was in these terms:

I consider there is a real risk of unfair prejudice to the accused if this evidence is permitted to be adduced.
(a)This is evidence that is capable of placing the accused at the scene of the disposal of the body. This of course is detrimental to the defence case but is not per se unfair.
(b)I consider that the likelihood ratios expressed and the qualifications that must be placed upon them are such as to moderate the probative value of the evidence very substantially.
(c)I consider there is a real danger that a jury would use this evidence to prove more than it does. DNA evidence is no longer novel. It is well accepted as a legitimate and reliable scientific aid to criminal investigation. The danger in this case is that the jury will ignore the very low likelihood ratios and the fact that they are expressed on the contingency that the underlying assumption of only two contributors is correct, and then proceed on the basis that it is absolute proof that the accused bound up the body of the deceased with rope. In the crude language of the racetrack, on one view, there is a thirty seven to one chance that this is not the accused’s DNA at all and even those odds are expressed on the contingency that there are no more than two contributors and to a certainty of 99%. In the DNA context Likelihood Ratios are usually expressed in the millions if not billions.

I do not consider that this danger can be adequately addressed by direction. If I exhort the jury to take real caution over its consideration of [the rope], this will only reinforce the ‘infallibility’ of the results and statistical analyses relating to [the thong]. Ultimately I am left with a distinct sense of unease about the probative value of this evidence and its capacity for unfairness to the accused. I consider the danger to the accused involves a real risk of unfair prejudice and I consider it outweighs the moderate probative value of the evidence.[17]

[17]Ibid [64]–[65] (citations omitted) (emphasis added) (T Forrest J).

Counsel for the applicant drew attention to the following statement made by the judge in the present case, in response to defence submissions about the possibility of a modification of the likelihood ratio when H gave her evidence:

Well, if she does modify her likelihood ratio in her evidence and gets down to 20 or whatever the figure is, the fact is that she’s given evidence that his DNA was in that glove.[18]

Both at trial and on appeal, his Honour’s statement was said to demonstrate the inevitability of the DNA evidence being taken to prove far more than it was capable of proving.

[18](Emphasis added).

The submission for the respondent was that, although the likelihood ratio of 26 was low, the evidence nevertheless had real probative value. The jury would have been able to comprehend — and evaluate — its probative value, whether it was expressed in the language of ‘moderate support’ or in the form of a statement that it was ’26 times more likely’ that the DNA came from the applicant than from a person chosen at random. Counsel emphasised that the assessment of probative value had to take into account — as the judge had done in his ruling — the fact that the evidence was led as part of a circumstantial case. It was ‘just one strand in a cable’.

The presentation of DNA evidence

An expert witness testifying to the results of DNA analysis will typically present the results in the form of a statistical calculation. As the Australian Law Reform Commission noted in a 2010 report,[19] the statistical expression used for this purpose conventionally takes one of two forms. The first is the ‘match probability’; the second is the ‘likelihood ratio’. It is the latter which is routinely used in Australian courts.
[19]Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2010).

The ‘match probability’ is

the probability that a person other than the suspect, randomly selected from the population, will have the same profile as that found at the crime scene. The smaller the probability, the greater the likelihood that the two samples came from the same person.[20]

Thus, a DNA profile with a match probability of one in one million means that there is a one in one million chance that a person chosen at random from the population will have that same profile.[21]

[20]Ibid [44.22].

[21]Mike Redmayne, ‘Appeals to Reason’ (2002) 65 Modern Law Review 19, 19.

In R v Doheny,[22] the England and Wales Court of Appeal (Criminal Division) used a match probability (referred to in the judgment as the ‘random occurrence ratio’) of one in a million in order to demonstrate the conclusion which, in the Court’s view, could properly be drawn from the information. The Court said:

If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be one of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.[23]

[22][1997] 1 Cr App R 369 (‘Doheny’).

[23]Ibid 373 (Phillips LJ, Jowitt and Keene JJ).

The Court went on to say that the task of the expert witness presenting DNA evidence in this form was to

explain to the jury the nature of the match (‘the matching DNA characteristics’) between the DNA in the crime stain and the DNA in the blood sample taken from the defendant. He will properly, on the basis of empirical statistical data, give the jury the random occurrence ratio — the frequency with which the matching DNA characteristics are likely to be found in the population at large. Provided that he has the necessary data, and the statistical expertise, it may be appropriate for him then to say how many people with the matching characteristics are likely to be found in the United Kingdom …[24]

[24]Ibid 374.

The ‘likelihood ratio’ is the ratio of the respective probabilities of two competing hypotheses. Ordinarily, the first hypothesis is the prosecution hypothesis — that the relevant DNA came from the accused — while the second hypothesis is the defence hypothesis —that it came from some other person.

As Redlich JA explained in R v Berry,[25] the likelihood ratio

is the ratio of the probability of the occurrence of the DNA evidence if the Crown hypothesis is correct … to the probability of the occurrence of the DNA evidence if the defence hypothesis is correct … It is the means by which the jury is able to weigh the prosecution and defence hypotheses and determine which is more likely to explain the DNA evidence.[26]

In Berry, this Court endorsed the view of the South Australian Court of Criminal Appeal in Karger that, given proper guidance, juries can properly evaluate the significance of DNA evidence expressed as a mathematical probability.[27]

[25](2007) 17 VR 153; [2007] VSCA 202 (‘Berry’).

[26]Ibid 161 [30]. See R v Karger (2002) 83 SASR 135, 140 [15]; [2002] SASC 294 (‘Karger’).

[27]Berry (2007) 17 VR 153, 164 [39] (Redlich JA); [2007] VSCA 202.

As H told the jury, the development of verbal equivalents for the statistical ratios was the work of forensic scientists. In 2009, the Association of Forensic Science Providers published what were called ‘Standards for the Formulation of Evaluative Forensic Science Expert Opinion’.[28] An ‘evaluative opinion’ was defined as
[28]Association of Forensic Science Providers, ‘Standards for the Formulation of Evaluative Forensic Science Expert Opinion’ (2009) 49 Science and Justice 161.

an opinion of evidential weight (evaluation of a likelihood ratio), based upon case specific propositions and clear conditioning information (framework of circumstances) that is provided for use as evidence in court.[29]

The relevant Standard was in these terms:
The strength of evidence will be expressed either by a value of the likelihood ratio or using a verbal scale related to the value of the likelihood ratio. This verbal scale will be adopted by all AFSP organisations.[30]

The verbal scale described by H in her evidence was in the same terms as that published by the Association.[31]

[29]Ibid 161.

[30]Ibid 162.

[31]See para 38 above. See also National Institute of Forensic Science Australia and New Zealand, An Introductory Guide to Evaluative Reporting (June 2017) 8.

In 2011, 31 forensic science representatives issued a position statement declaring that likelihood ratios were ‘the most appropriate foundation for assisting the court in establishing the weight that should be assigned’.[32] There is evidently a continuing debate as to whether numerical or verbal expression of a likelihood ratio will produce ‘the highest correspondence between expert intentions and decision-maker interpretations’.[33] In the present case, however, no question arises regarding the form in which the DNA evidence was presented.
[32]C Aitken et al, ‘Expressing Evaluative Opinions: A Position Statement’ (2011) 51 Science & Justice 1, 1. See also Jonathan J Koehler, Audrey Chia and Samuel Lindsey, ‘The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?’ (1995) 35(2) Jurimetrics 201, 203; Edward K Cheng, ‘The Burden of Proof and the Presentation of Forensic Results’ (2017) 130 Harvard Law Review Forum 154, 158–9.
[33]K A Martire et al, ‘On the Interpretation of Likelihood Ratios in Forensic Science Evidence: Presentation Formats and the Weak Evidence Effect’ (2014) 240 Forensic Science International 61, 67.

As we have seen, the expert witness presented the evidence in the form of both a likelihood ratio (26 to 1) and its verbal equivalent (‘moderate support’). Defence counsel’s cross-examination had the effect of exposing the evidence in the form of the ‘match probability’, expressed (in the manner suggested by the Court in Doheny) as the number of people in Australia likely to produce the same DNA profile.

The critical question, of course, concerns the probative value of a likelihood ratio of 26 to 1, and the associated risk of the jury (unfairly) giving the evidence more weight than it deserved. In submitting to the judge that the evidence should be excluded, defence counsel questioned ‘what rational use the jury will make of a figure like 26’. Counsel submitted:

It’s easy to see what rational use a jury will make of a figure like 100 billion, they’ll say it’s very, very strong, extremely strong support is the conventional term. What are they supposed to make out of moderate support and one in 26? How are they supposed to quantify this in an actual rational process?

As already noted, counsel drew the same contrast in his final address to the jury.

To assist our consideration of those questions, we invited the parties to file supplementary submissions addressing two related issues, as follows:

(e) what was it about the nature of the DNA material on the red glove which explained the unusually low likelihood ratio of 26 to 1?

(f) how was the probative value of such a low likelihood ratio to be understood by the jury, by comparison with the ratio of 100 billion times which they were given regarding the mask?

Both sides subsequently provided helpful submissions, which included references to a range of academic articles. Counsel for the applicant advanced what they described as the following ‘fundamental proposition’:

[P]robabilistic or statistical reasoning is extraordinarily difficult, complex and unintuitive for any lay person — including a juror, lawyer or judicial officer. The mode of reasoning involved may even be inconsistent with the kind of decisions that need to be made in a criminal trial: the need to ultimately come to a conclusion in the case beyond reasonable doubt. This simply does not matter where the probative value of the evidence is very powerful, as it often is with DNA evidence. But where the probative value of the evidence is low, or very low, the danger from the presentation of evidence that it is difficult for a jury to meaningfully absorb or use, will often outweigh the probative value.

In the present case, it was said, the probative value of the DNA evidence was ‘simply, and by definition, low’, while the danger of unfair prejudice was very high. The submission referred to Director of Public Prosecutions v Wise (a pseudonym),[34] where this Court said:

Moreover, one of the dangers associated with DNA evidence, is what has come to be known as the ‘CSI effect’. The ‘CSI effect’ is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings. As we have explained, as a matter of pure logic, the DNA evidence [in the present case] has little or no probative value. By virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy — no matter the directions of a trial judge — and give it weight that it simply does not deserve. The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small.[35]

[34][2016] VSCA 173.

[35]Ibid [70] (Warren CJ, Weinberg and Priest JJA).

In this case, counsel submitted, the ‘CSI effect’ must outweigh the probative value of the evidence, both because the likelihood ratio was so low and because the figure itself was ‘dependent upon an assumption about the number of contributors that cannot be substantiated’. As to the latter point, defence counsel had cross-examined H about the number of contributors to the DNA material on the red glove.

H told the jury:

Using all the information that we have and how the profile appears, the most likely explanation is that there are three contributors.

She acknowledged in cross-examination that, while this was the most likely explanation, it was possible that there were additional contributors. She further confirmed that, if there were an additional contributor, it would be likely to make the likelihood ratio even lower. Nothing was said in the defence final address, however, about uncertainty in the number of contributors. As already noted, the submission simply was that the jury could not be satisfied that the likelihood ratio of 26 was ‘enough’.

As to juror comprehension of a low likelihood ratio, the applicant drew attention to research from the United States and from Australia, the former suggesting that the persuasive effect of DNA evidence increased as the likelihood ratio increased, the latter finding that ‘jurors’ conviction rates did not vary as a function of the probative value of the DNA evidence’.[36] Counsel were not able to identify any academic work dealing specifically with the relative persuasive effect of high and low likelihood ratios. They pointed out, however, that where the literature sought to contrast ‘high’ and ‘low’ probative value DNA evidence, the figure typically used to represent ‘low’ probative value was a likelihood ratio of a thousand to one.
[36]Jonathan J Koehler, ‘When are People Persuaded by DNA Match Statistics?’ (2001) 25 Law and Human Behaviour 493; Stephanie Dartnall and Jane Goodman-Delahunty, ‘Enhancing Juror Understanding of Probabilistic DNA Evidence’ (2006) 38 Australian Journal of Forensic Sciences 85, 89.

The respondent’s submission included some additional information provided by H subsequent to the hearing of the appeal. This additional information — which was expressly not relied on for the purposes of the appeal — included the following:

(a)Specific regions of DNA that are known to vary between people are analysed and used for comparison purposes for forensic case work.
(b)These regions are referred to as loci or DNA sites.
(c)These regions are made up of short tandem repeats (STRs), where short sequences are repeated a certain number of times. The number of repeats is what is variable in the population.
(d)In the applicant’s case, PowerPlex® 21 DNA profiling kit was used, which enables results to be obtained for twenty-one loci.
(e)A DNA profile consists of the information, or results, obtained from these 21 sites.
(f)Regardless of whether the DNA profile is a complete profile, or a partial/low level profile, it undergoes the same process of statistical analysis and DNA reference sample comparison.

The evidentiary force of a low likelihood ratio

We referred earlier to H’s slide presentation to the jury about the nature and science of DNA testing. The slides were provided to the jury and we have had an opportunity to review them. They include slides which depict diagrammatically the DNA analysis procedure, a DNA site (locus) and a DNA profile showing results at 21 sites.

In her oral evidence, H explained to the jury what the slides were intended to convey. Part of what she said was as follows:

Each person will have two copies of the DNA. So one which is inherited from your mother and one from your father. So the diagram there shows the two copies of the DNA and the first line shows seven repeat sequences and the second copy shows nine repeat sequences. So the DNA result for that person at that site would be a seven and a nine. So on a graph these DNA types can be visualised in the form of peaks. So at a particular site you could have two peaks.
So in this example you’ve got your seven and your nine peak but if you have two — if you inherited two 12 repeat sequences then you would only have one peak but that would represent both of your DNA types at that site. And this is just a graphical representation of a DNA profile. There are 21 sites and you can see at some of those sites you would have two peaks, so two DNA types present and at some sites you would only have one peak which would indicate you have the same DNA type but two copies of that DNA type.
Okay. So then a DNA comparison is performed. The DNA profile obtained from the evidence sample. So for example, blood on a knife is compared to the DNA profile from your person of interest and that is the graph in a tabular form. So as you can see, if you look — there’s 16 sites listed there and you’ve got your evidence profile and your reference profile and at each of those DNA sites the evidence profile and the reference profile have given the same result and that’s what’s determined to be a DNA match.
So the DNA — if the DNA matches then the person of interest could be the source of that evidence profile and a calculation known as the likelihood ratio is performed to assess the weight of that DNA profile match. So what that means is ah forensic scientists are trying to look at the evidence in the way that the court looks at the evidence and usually you’ve got the two opposing parties. One party is saying the DNA detected in the evidence profile did come from that person and then the other party is saying the DNA detected didn’t come from that person and in saying that if the DNA detected did not come from that person then it must have come from a different person who by chance has the same DNA profile as our person of interest.
So the probability of a match with the person of interest is compared with the probability of the match by chance. The ratio of these two probabilities is called the likelihood ratio and it describes how likely the DNA profile is if the first proposition was true, then if the second proposition was true. So in order to do this we need to estimate the DNA frequencies and what is the chance that someone else in the population has the same DNA profile.

Understandably, this was a presentation in entirely general terms. Presumably the slides have been developed by the Victoria Police Forensic Services Department for use whenever one of its forensic scientists is giving evidence about DNA profiling. Having reviewed the slides together with the oral evidence, however, we found the technical explanations difficult to understand and we would assume that jurors would have similar difficulties. This prompts us to question whether it is either realistic or necessary to expect a jury to understand the science of DNA profiling, as distinct from the ‘evaluative opinion’ conveyed as a likelihood ratio or its verbal equivalent.

Relevantly for present purposes, there was nothing in the generic presentation which would have enabled the jury to comprehend how, or why, this particular DNA profile produced the low likelihood ratio of 26 to 1. As noted earlier, H was asked in cross-examination to explain why the likelihood ratio was so low. Her answer should be set out again:

[T]here’s a number of reasons that the likelihood ratio could vary. Firstly, the DNA profile obtained was a partial DNA profile so there were some sites where we obtained no result. So when you’re looking at the likelihood ratio you cross multiply the frequency of occurrence across all of those 21 sites. So if you don’t have a result at some of those sites that multifactorial sort of — the multifactorial doesn’t occur so your value will be lower. It also depends, at the sites where that person does match if those DNA types that are present are more common in the population then the likelihood ratio will be lower.

In our respectful opinion, this explanation — while scientifically orthodox — would also have been very difficult for a lay juror to understand. It required an appreciation of the process of ‘cross-multiplication’ of the various likelihoods of occurrence at the various sites in the DNA profile and, more particularly, of how the result of that ‘multifactorial’ process can be affected both by the number of available sites and by the relative (lack of) frequency of particular DNA types. Even if this technical explanation were capable of being understood, we doubt that it would have assisted a juror to make sense of the difference in probative force between a likelihood ratio of 26 to 1 and a ratio of 100 billion to 1.

How, then, was the probative value of this likelihood ratio to be assessed? The Evidence Act defines ‘probative value’ as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[37] In our view, the evidence with respect to the red glove had undoubted probative value. The fact in issue was, as defence counsel made clear to the jury in opening, whether the applicant was the manufacturer of the methamphetamine found at the premises. It is clear, we think, that the jury’s assessment of the probability that the applicant was the manufacturer was capable of being ‘rationally affected’ by evidence that it was 26 times more likely that the DNA on the red glove was contributed by the applicant than by someone else.[38]
[37]Evidence Act pt 1 (definition of ‘probative value’).
[38]See Aytugrul v The Queen (2012) 247 CLR 170, 185 [28]; [2012] HCA 15 (‘Aytugrul’).

As noted earlier, the likelihood ratio is a ratio of probabilities. On an ordinary understanding of concepts of likelihood and probability,[39] a likelihood ratio of 26 to 1 could rationally be understood to mean that the prosecution hypothesis (that the DNA on the glove came from the accused) was distinctly more probable than the defence hypothesis (that it did not). The civil standard of proof requires satisfaction that the existence of the relevant fact or matter is ‘more probable than not’.[40] Satisfaction that its existence was twice as probable as its non-existence would ordinarily satisfy that standard.[41] It follows, in our view, that a multiple of 26 times justifies the use of the phrase ‘distinctly more probable’. On this view, the fact that likelihood ratios are very often — perhaps typically — expressed in multiples of millions or billions does not, in our view, rob this likelihood ratio of probative value.
[39]See RJE v Secretary, Department of Justice (2008) 21 VR 526, 534–7; [2008] VSCA 265.
[40]See Holloway v McFeeters (1956) 94 CLR 470, 480–1; [1956] HCA 25; Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2^nd ed, 1983) ch 10.
[41]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th Australian ed, 2017) [9050].

No issue was raised at trial or on the appeal about the appropriateness of the witness’s use of the verbal equivalent — ‘moderate support’ for the prosecution hypothesis. In our view, that formulation expressed in appropriately conservative terms the probative value of this DNA evidence, standing alone. On the one hand, the phrase ‘moderate support’ conveyed to the jury that the evidence had real evidentiary force (though falling short of providing ‘strong support’). At the same time, use of the word ‘moderate’ was calculated to mitigate the risk of the evidence being overvalued.

The question of how jurors comprehend various expressions of DNA evidence has spawned an enormous literature. As the High Court pointed out in Aytugrul, much of the literature rests on research into cognitive psychology.[42] No expert evidence having been adduced in the present case, we are left to consider the position in the same way as courts of criminal appeal are regularly called on to assess the likely impact of evidence on juries.
[42](2012) 247 CLR 170, 183 [20]; [2012] HCA 15 (French CJ, Hayne, Crennan and Bell JJ).

Doing the best we can, we think that there is, if anything, a lower risk of misuse of a likelihood ratio of under a hundred than in the case where the ratio runs into the millions or billions. Much has been written about the risk of jurors being ‘dazzled’ or ‘overwhelmed’ by incomprehensibly large numbers.[43] With a ratio of 26 to 1, by contrast, the figures are well within the ordinary juror’s lay understanding of probability and — for that reason — are less likely to be overvalued.
[43]See, eg, Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report No 96, 30 May 2003), 1097 [44.26]–[44.27]; Ian Freckelton, Expert Evidence (Thomson Reuters, 6^th ed, 2019) [12.20.80]; Stephanie Dartnall and Jane Goodman-Delahunty, ‘Enhancing Juror Understanding of Probabilistic DNA Evidence’ (2006) Australian Journal of Forensic Sciences 85, 86.

As Barbara Spellman of the University of Virginia School of Law has pointed out, much of the work required of jurors necessarily involves questions of probability:

The debate about whether jurors should have to deal with probabilities/statistics is not one worth having. Jurors already do. The reliability of every piece of evidence and every witness is in play — and we can think of that as invoking jurors’ statistical sensibilities. Is this witness likely to be lying under these circumstances? How likely? What are the chances that installing a safety device would have prevented the accident? We accept that jurors must deal with this kind of uncertainty. We also ask them to make judgments that are ‘more likely than not’ — which certainly sound like we expect them to assess probabilities.[44]

[44]Barbara A Spellman, ‘Communicating Forensic Evidence: Lessons from Psychological Science’ (2018) 48 Seton Hall Law Review 827, 831 (citations omitted).

To this point, we have dealt only with the probative value of the DNA evidence considered by itself. But that is not the matter for consideration. Because this was a circumstantial case, the assessment of the probative value of the DNA evidence for the purposes of s 137 had, necessarily, to take into account all of the other evidence on which the prosecution relied to establish that the applicant was the manufacturer.[45]
[45]See Karger (2002) 83 SASR 135, 141 [21]; [2002] SASC 294 (Doyle CJ).

As the England and Wales Court of Appeal (Criminal Division) explained in Doheny:

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant’s guilt.[46]

This passage was cited with approval by the South Australian Court of Criminal Appeal in Karger,[47] and was relied on by Sulan J in R v Carroll,[48] a criminal trial by judge alone.

[46][1997] 1 Cr App R 369, 373 (Phillips LJ, Jowitt and Keene JJ).

[47](2002) 83 SASR 135, 180 [186]; [2002] SASC 294 (Gray J).

[48][2010] SASC 156; [2002] SASC 294. See also R v Pfennig [2017] SASCFC 26, [113]–[114] (Blue J).

In the present case, as noted earlier, there was a good deal of circumstantial evidence tending to show that the applicant was the occupier of the premises and had been engaged in the manufacture of methylamphetamine on the premises, namely that:

·he was the lessee of the premises and the only person known to the lessor to use them;
·he was at the premises when police executed the search warrant;
·his fingerprint was found on two items of equipment evidently used for manufacturing methamphetamine (a flask and a baking dish);
·his DNA (it was conceded) was on one of the masks on the side table;
·he had on his mobile phone sets of instructions about manufacturing methylamphetamine; and
·within the previous 48 hours, he had responded by text message to a request for ‘a point’ of methamphetamine, saying that he did not have any left.

It was, of course, very significant that the red glove was found in a closed tub together with manufacturing equipment.

The jury were entitled to treat the combined effect of that circumstantial evidence as greatly reducing the possibility that the DNA on the red glove had been contributed not by the applicant but by one of the other persons in the Australian population who would have produced a similar DNA profile. It follows, in our view, that as part of the Crown’s circumstantial case, the probative value of the DNA evidence was high.

For the reasons we have given, and in particular because of the exemplary directions which the trial judge gave about the evidence, there was little risk of the DNA evidence being overvalued. It follows that this ground must fail.

Ground 5: trafficking in ephedrine

As noted earlier, the applicant was convicted on a charge of trafficking in a commercial quantity of ephedrine. The basis of the charge was that he had been engaged in preparing a quantity of ephedrine, found at the premises, for use in the manufacture of methylamphetamine. Ephedrine is a precursor chemical in that process of manufacture.

The submission for the applicant under ground 5 was that the alleged conduct — if proved — could not in law constitute the offence of trafficking. A similar argument was put to the judge on a no case submission and rejected. The resolution of this question turns on the proper construction of the definition of ‘traffick’ in s 70 of the DPCS Act. That definition is in these terms:

traffick in relation to a drug of dependence includes—
(a)prepare a drug of dependence for trafficking;

(b) manufacture a drug of dependence; or
(c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence.

The submission for the Crown, both at trial and on appeal, was that the alleged conduct fell within the scope of para (a) of this definition. According to the submission, the language of para (a) was intended to cover the circumstance where the accused person prepares a drug of dependence (drug A) for trafficking in a different drug of dependence (drug B), the trafficking being constituted by the manufacture of drug B as contemplated by para (b) of the definition.

The trial judge accepted this argument, and refused the no case submission. His Honour recorded the prosecutor’s submission as being that, in pt V of the DPCS Act, ‘Parliament had sought to comprehensively address all aspects of manufacturing drugs, from manufacture to putting them into distribution.’[49] His Honour said:

The incorporation of ‘manufacturing’ within the definition of ‘traffick’ supports the prosecution submission. Obviously drugs can be both prepared for sale or manufactured. As a matter of principle a term is to be given the same meaning within the one Act. Thus the phrase ‘prepare a drug of dependence for trafficking’ can be read as ‘prepare a drug of dependence for [manufacturing]’. This was the basis upon which the allegation was made against the accused in charge 2. It was argued that there would be unlimited regression as a drug was prepared to be prepared to be prepared for manufacture. It is significant that the relevant criminal provision under

s 71AA proscribes both trafficking and ‘attempts to traffick’ in a drug of dependence. Thus a failed attempt to manufacture a drug with the necessary mental element, would still be proscribed by s 71AA. Although the prosecution did not seek to rely in charge 2 on attempted trafficking, in a sense this would be a direct answer to the defence submission.[50]

[49]DPP v Vyater (Ruling No 2) [2018] VCC 2070, [56].

[50]Ibid [58].

With great respect to his Honour, we consider that the construction of para (a) advanced by the prosecution is not the proper construction, and should have been rejected. The alleged conduct could not have constituted the offence of trafficking in ephedrine and the applicant must therefore be acquitted of that charge. Our reasons are as follows.

The definition of ‘traffick’ is in the familiar form of an inclusive definition. Such a definition is typically used either where the legislature wishes to extend the meaning of a word or phrase beyond its accepted or ordinary meaning, or where there may be some doubt about whether the ordinary meaning encompasses that which is now expressly included.

The word ‘traffick’ was originally used to describe the activity of trading, of buying and selling, the conduct of commercial dealings.[51] In modern usage, it retains the meaning of trading or dealing but is most often used to connote illegal dealing — as in ‘drug trafficking’ or ‘people trafficking’.
[51]See R vHolman [1982] VR 471, 475–476 (‘Holman’); R v Giretti (1986) 24 A Crim R 112, 128–9 (Ormiston JA) (‘Giretti’).

Thus, if it is alleged that a person has ‘trafficked’ in a drug of dependence, this would as a matter of ordinary parlance be taken to mean that the person has dealt with that drug, whether by supplying it or distributing it or selling it to some other person. The ordinary meaning may well, also, encompass the act of carrying the drug from one place to another. As Lush J said in Holman, ‘trafficking connotes participation in the progress of goods from source to consumer’.[52] The common thread, in our view, is that of an active dealing with the drug said to have been trafficked.
[52]Holman [1982] VR 471, 475 (Lush J).

The inclusive definition reveals a clear legislative intention to extend the definition beyond such dealings. For example, under para (c), it is as much an act of trafficking for the accused to have the drug in his/her possession for sale as to sell it or agree to sell it or offer it for sale. Mere possession for sale would not, ordinarily, be thought of as an act of trafficking.

In the same way, manufacturing a drug of dependence would not ordinarily be thought of as an act of trafficking. The process of manufacture would be viewed as necessarily prior to, and separate from, any dealing with the drug. Likewise, preparing a drug for a subsequent dealing in that drug would ordinarily be viewed as prior to, and separate from, the actual dealing in the drug. For this reason, evidently, the legislature decided to extend the definition to encompass conduct which is preparatory to an actual dealing in the drug.

There is an obvious parallel between preparation in (a) and manufacture in (b). Both are physically separate and distinct from the act of dealing in the drug itself, once prepared or manufactured (as the case may be). As Ormiston J said in Giretti, these concepts ‘connote that “trafficking” … could be satisfied by the mere creation of a source of supply without proof of movement of the drugs on the way to a consumer’.[53]
[53]Giretti (1986) 24 A Crim R 112, 134 (Ormiston JA).

On this analysis, the structure of the definition is perfectly coherent. The legislature has viewed the act of dealing in a drug as the archetypal form of trafficking and has deliberately extended the definition to include a range of forms of conduct factually and temporally prior to an actual dealing. What para (a) is directed at is the preparation of a particular drug of dependence for trafficking in that drug. This is the most sensible meaning to give to the word ‘prepare’. We would not ordinarily speak of trafficking in drug A by preparing drug A for trafficking in drug B. Possessing or preparing drug A for trafficking in drug B is captured by other offences, including possessing a substance with the intention of using it for the purpose of trafficking in a drug of dependence,[54] or possessing a prescribed precursor chemical.[55]
[54]Section 71A.
[55]Section 71D.

The Crown argument seeks to address this difficulty by viewing the phrase ‘for trafficking’ in para (a) as including the extended definition of ‘traffick’ provided by para (b). The argument relies on emphasising that the word ‘traffick’ occurs twice as part of the definition afforded by para (a) as does the phrase ‘drug of dependence’. Traffick in relation to a drug of dependence includes (a) prepare a drug of dependence for trafficking. There is thus a need to identify what type of trafficking the preparation is directed at: is the preparation for manufacture, for sale, for exchange, and so on? There are two forms of conduct to be considered: the conduct that amounts to the preparation and the conduct that amounts to the trafficking at which the preparation is directed.

According to the argument, just as the conduct that fits the second occurrence of ‘traffick’ in the definition under para (a) — the manufacture, the sale, the exchange etc — can be distinct from the preparatory conduct, so too can the drug of dependence in respect of which there is a manufacture, sale, or exchange be different from the drug of dependence in respect of which the preparation occurs. The Victorian Parliament should not be taken to have excluded the possibility that the drug of dependence in respect of which the preparation occurs may be different from the drug of dependence in respect of which the second form of trafficking occurs, given there is no such express restriction.

In our view, in the absence of express words permitting reference to different drugs of dependence, such an interpretation is not the proper construction. As we have said, each of the subparagraphs has its own work to do in extending the scope of ‘trafficking’ beyond its ordinary meaning. It is plain, in our view, that the phrase ‘for trafficking’ in para (a) is intended to refer to trafficking in its ordinary meaning. It is precisely because the ordinary meaning is limited in the way we have suggested that preparatory acts need to be explicitly included. There is no warrant in the provisions, in our view, for treating one limb of the extended definition as itself further extended by a different limb of the extended definition.

Ground 6 was advanced in the alternative. The contention was that if (contrary to the primary contention) the charge of preparing ephedrine for the purpose of trafficking in methylamphetamine (by manufacturing) was good in law, there was no evidence to establish that the applicant had been engaged in any such conduct. In view of our conclusion that the charge was bad in law, it is unnecessary to address this ground.

The substituted conviction

The conviction on charge 2 must therefore be set aside. In supplementary submissions, the Crown contended that the Court should exercise its power under

s 277(1)(c) of the Criminal Procedure Act to substitute a conviction for the offence of possessing a substance for the purpose of trafficking in a drug of dependence, contrary to s 71A of the DPCS Act. As to the requirement in s 277(1)(c) that the Court must be satisfied ‘that the jury … must have been satisfied of facts that prove’ the alternative offence, it was contended that the only reasonable inference which the jury could have drawn from the applicant’s possession of the ephedrine was that it was for the purpose of trafficking methylamphetamine, by manufacture.

The submission for the applicant conceded that it was open to this Court to substitute a conviction for an offence under s 71A. It was submitted, however, that the appropriate course would be to substitute a charge under s 71D of the DPCS Act, of possessing a precursor chemical. According to the submission:

the applicant made offers to resolve the matter on the basis that the ephedrine be ‘rolled’ into charge 3. In circumstances where he has lost the opportunity for that to occur, it is submitted that a charge under s 71D would be appropriate, rather than imposing two charges under s 71A and dealing with it only by way of cumulation and concurrency.

Accepting for present purposes that such offers were made, we are of the view that the only appropriate course is to substitute a conviction for an offence under s 71A. The maximum penalty for that offence is 10 years’ imprisonment, reflecting its greater seriousness than the offence of possessing a precursor chemical, for which the maximum is 5 years’ imprisonment. To substitute a conviction for the latter charge would not, in our view, reflect the seriousness of the conduct. The applicant’s possession of the ephedrine for the purpose of trafficking by manufacture was particularly serious, given that on the unchallenged evidence this quantity of ephedrine was capable of producing somewhere between five and six times the commercial quantity of methylamphetamine.

Ground 7: evidence of the finding of weapons and money

The judge allowed the prosecution to lead evidence of the finding of various weapons at the premises, including a pellet pistol, extendable batons and samurai swords. Evidence was also led that the applicant had in his possession the sum of approximately $1,000. His Honour rejected a defence submission that this evidence was irrelevant, or alternatively, that it should be excluded on the basis that the danger of unfair prejudice outweighed its probative value.

In ruling that the evidence was relevant and admissible,[56] his Honour referred to the decision of the High Court in Falzon v The Queen[57] and the subsequent decision of this Court in Arico v The Queen.[58] As his Honour correctly stated, those decisions confirmed that evidence of the possession of weapons, ammunition and cash was admissible as part of a circumstantial case of drug trafficking. His Honour rejected a defence submission that the present case was distinguishable on the ground that this was a case of trafficking by manufacture, not by sale. His Honour said:

The illegal drug trade is a continuum from manufacture, to storage, distribution, and sale to the final consumer. Because the drugs are valuable at all stages, then the accoutrements are relevantly probative at all stages.[59]

[56]DPP v Vyater (Ruling No 1) [2018] VCC 1812.

[57](2018) 264 CLR 1; [2018] HCA 29 (‘Falzon’).

[58][2018] VSCA 135 (‘Arico’).

[59]DPP v Vyater (Ruling No 1) [2018] VCC 1812, [11].

His Honour was satisfied that the items found were

relevantly probative on the issue of whether, given his occupation of the premises, and his direct forensic links with some of the equipment, it was he who was in fact engaged in the manufacturing operation, as distinct from what appears to be his defence, some other person.[60]

His Honour continued:
Where the prosecution is alleging that the accused is engaged in illegal possession and manufacture of prohibited drugs, the possession of various weapons, themselves illegal, is a circumstantial fact that the jury is entitled to take into account in determining whether on the whole of the evidence the prosecution have proved, beyond reasonable doubt, that it was in fact the accused who was engaged in the illegal manufacture and possession.
The same reasoning applies to the samurai swords. Although they were found in the storage unit, and thus not readily accessible, as the prosecutor submitted, in a sense they are back-up weapons. They were located along with other drug manufacturing equipment in the premises. It is not a case where they were mounted as a display. Even if they were accepted to be an incidental part of the accused’s personal property, this too would tend to support, along with the other weapons sought to be admitted, an inference of his overall control of all activities within both locations and could be seen as part of the overall factual context.
…
Similar reasoning applies in relation to the cash found on the accused. While as a plumber he may have been involved in a cash business, in circumstances where he was in possession of premises where a large volume of items evidencing an illegal laboratory were found, then his possession of cash, to allow him to, if necessary, purchase supplies, is an incidental fact as part of the overall context, and on the authority of Falzon, is admissible.[61]

[60]Ibid [12].

[61]Ibid [18], [19], [21].

In his Honour’s view, given the nature of the allegations and the other evidence to be led, evidence of weapons and cash was ‘strongly probative’. He accepted that there was some risk of prejudice, in that the evidence would show that the applicant was ‘prepared to possess illegal weapons’, but was satisfied that the risk could be adequately addressed by warnings under s 27 of the Jury Directions Act 2015.[62]
[62]Ibid [23].

The appeal submission for the applicant accepted that the evidence was ‘arguably’ admissible, but maintained that the case for exclusion of the evidence under s 137 was strong, and ought to have been acceded to. It was pointed out that — as the judge himself had noted — there was no forensic evidence to link the applicant to any of the weapons or the ammunition. As the judge also noted, the samurai swords had been found in a container in the storage unit and were therefore not readily accessible. According to the written submission:

Against a scenario where the applicant denied possession of any items of weaponry and drugs or items connected with drugs, the possession of weapons added little to the Crown case, in the sense of proving that it was the applicant, as against another or others, who was involved with the drugs.

On the other hand, it was said, the danger of unfair prejudice associated with the admission of the evidence was high.

We are not persuaded by this submission. In our respectful view, his Honour’s analysis was entirely correct. This was circumstantial evidence the probative value of which was to be assessed as part of the entire circumstantial case. Given all of the other indications that the applicant was the occupier of the premises in which manufacturing equipment and ingredients were found, the finding of weapons, ammunition and cash on the premises was of significant probative value on the question of whether he was manufacturing methylamphetamine. As his Honour said, the analysis in Falzon and Arico of the probative value of the ‘accoutrements’ of drug trafficking applies with as much force to an alleged manufacturer of drugs as to a person who is alleged to have been in possession of drugs for the purposes of trafficking by sale.[63]
[63]Arico [2018] VSCA 135, [104] (Maxwell ACJ and Weinberg JA).

We regard the risk of unfair prejudice as moderate at best, and we are quite satisfied that it was adequately addressed by the judge’s directions.

Resentencing

Before explaining our conclusion on the resentencing, it is necessary to examine the complaints advanced in support of the application for leave to appeal against sentence. They concerned the applicant’s personal circumstances.

The judge accepted expert evidence from a consultant psychiatrist that the applicant had had undiagnosed childhood ADHD and ‘that like many other patients this had led to substance abuse and criminality’.[64] His Honour continued, addressing the applicant:

For the last two years he has been treating you with a medication that has had a positive impact on your behaviour and your vocational success. He is of the opinion that this medication is the ‘gold standard’ for the treatment of ADHD but is not available for prescription in the prison system, and that an alternative medication is not as efficacious.[65]

[64]Reasons [42].

[65]Ibid [43].

His Honour noted the contents of an affidavit in response from a senior Corrections Victoria manager, who said that:

[U]nder the system Corrections Victoria seeks to provide broadly equivalent medical facilities and treatment within the prison system as are available in the outside community. He conceded that your current medication would be unavailable but that a substitute had been utilised by Justice Health practitioners in the past.

His Honour concluded as follows:

While there is an element of speculation as to the efficacy of appropriate treatment within the prison system, I regard it as appropriate to give some minor weight to the risk that there will be a deterioration to your condition whilst incarcerated.[66]

[66]Ibid [53].

The applicant’s contention was that a person suffering from a condition such as ADHD would find imprisonment more burdensome than would someone without that condition. Without the medication which the psychiatrist had prescribed, it was said, the applicant would ‘suffer adversely from the rigours of imprisonment’. The judge’s finding ‘underestimated the burden of imprisonment’.

The second matter concerned the applicant’s Jewish faith and the risk of violent assault and other acts of discrimination. It was submitted on his behalf that he had already been the subject of one racially-motivated assault. His Honour was not persuaded that the applicant was at risk of religious or racially-motivated violence. Nor did he accept that the applicant’s ethnic and religious status was such that a term of imprisonment would be more burdensome on that basis alone.

We are not persuaded that there was any sentencing error. Each of the findings which his Honour made on these matters was a finding of fact and, on ordinary principles, this Court would not intervene unless it was shown that the findings were not reasonably open on the evidence. Given the evidence before the Court, including the evidence from Corrections Victoria, we are satisfied that the findings his Honour made were open to him.

Turning, then, to the question of resentencing, we have already expressed the view that the conduct giving rise to the substituted charge — of possessing ephedrine for the purpose of trafficking in methylamphetamine by manufacture — was very serious. We note also that the applicant has prior convictions for trafficking amphetamine and trafficking ecstasy, for which he received a term of imprisonment.

Ordinarily, we would have re-sentenced the applicant on the ‘possession of ephedrine for manufacture’ charge on the basis that he had pleaded not guilty. In the unusual circumstances of the present case, however, we are satisfied that account must be taken of the pre-trial negotiations between the prosecution and defence, described below.

In affidavit evidence filed on behalf of the applicant, his solicitor deposed to a succession of plea offers put forward by the defence, each of which was rejected by the prosecution. The final offer was described in these terms:

On 30 October 2018, prior to empanelment of the jury, a further defence offer was advanced in conference with the prosecution stipulating that Mr Vyater would plead guilty to trafficking Methylamphetamine (simpliciter), possessing precursor Ephedrine, and possessing equipment and substances for the purposes of trafficking (including Hypophosphorous acid and Iodine).
In the alternative, the defence indicated that Mr Vyater would plead guilty to trafficking Methylamphetamine (simpliciter) and possessing equipment and substances for the purposes of trafficking (including Ephedrine, Hypophosphorous acid and Iodine).
This offer was also rejected.
There does not appear to be a written record of this offer and the prosecution’s rejection of it.

The position taken by counsel for the Director in response to this evidence was one of conspicuous fairness. Counsel accepted that, although the Office of Public Prosecutions had no record of this final offer, the Court should proceed on the basis that it was made in the terms described. Further, and most importantly, counsel accepted that the rejection of the offer was principally to be explained by the OPP’s continued insistence that the matter could only be resolved if the applicant pleaded guilty to the charge of trafficking in a commercial quantity of ephedrine. That is the charge which we have concluded was legally invalid. Counsel further accepted that the applicant’s representatives had put forward to the OPP, unsuccessfully, the legal objections to that charge which this Court has now upheld.

As can be seen, the alternative offer put forward on 30 October 2018 would have involved a plea of guilty to the charge of trafficking methylamphetamine, and to a charge or charges of possessing equipment and substances (including ephedrine) for the purposes of trafficking. But for the prosecution’s erroneous insistence on the ephedrine trafficking charge, it seems to us to be highly probable that the matters would have resolved on pleas of guilty. For that reason, we will re-sentence the applicant on the ‘possession for trafficking’ charge as if he had pleaded guilty to it.

For those reasons, we think that the appropriate sentence on the substitute charge is 4 years’ imprisonment. That will be the base sentence. As set out in the table below, the other sentences and orders for cumulation will be unchanged, with the result that the total effective sentence will be 5 years and 6 months’ imprisonment. We will fix a new non-parole period of 3 years. That will have the result that the ratio between the head sentence and the non-parole period remains almost unchanged from the — very moderate — level fixed by the sentencing judge.

Charge Offence Sentence imposed Cumulation

1.

Trafficking in a drug of dependence
3 years, 6 months 1 year, 6 months

2. Possessing a substance for the purpose of trafficking in a drug of dependence 4 years Base

3. Possessing substances, materials documents and equipment for the purposes of trafficking in a drug of dependence 4 years -

Total Effective Sentence            5 years and 6 months

Non-Parole Period            3 years

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Citations

Yan Vyater v The Queen [2020] VSCA 32

Most Recent Citation

Director of Public Prosecutions v McArthur [2020] VCC 376

Cases Citing This Decision

6

Saab (a pseudonym) v The Queen [2022] VSCA 116

Tuite v The Queen [2020] VSCA 318

R v St [2022] VSC 450

Cases Cited

11

Statutory Material Cited

0

Director of Public Prosecutions v Vyater (Ruling No 2) [2018] VCC 2070

Tuite v The Queen [2015] VSCA 148

R v Guingab [2010] VSC 256

Likelihood ratio	Level of evidentiary support
1	Neutral
1–10	Slight support
10–100	Moderate support
100–1,000	Strong support
1,000–1,000,000	Very strong support
More than 1,000,000	Extremely strong support

Charge	Offence	Sentence imposed	Cumulation
1.	Trafficking in a drug of dependence	3 years, 6 months	1 year, 6 months
2.	Possessing a substance for the purpose of trafficking in a drug of dependence	4 years	Base
3.	Possessing substances, materials documents and equipment for the purposes of trafficking in a drug of dependence	4 years	-
Total Effective Sentence		5 years and 6 months
Non-Parole Period		3 years

[2020] VSCA 32

27 March 2020