Forbes v The Queen [2010] HCATrans 120 (18 May 2010)

Last Updated: 18 May 2010

[2010] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C10 of 2009

B e t w e e n -

BENJAMIN JAMES FORBES

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 18 MAY 2010, AT 10.16 AM

Copyright in the High Court of Australia

MR P.S. HASTINGS, QC: May it please your Honours, I appear with my learned friend, MR S.L. GILL, and my learned friend, MS K.J. EDWARDS, for the applicant. (instructed by Ken Cush & Associates)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A. DOIG, for the respondent. (instructed by Director of Public Prosecutions (ACT))

FRENCH CJ: Yes, Mr Hastings.

MR HASTINGS: As your Honours would be aware, the matter is an application for leave to appeal against the conviction of the applicant for an offence of sexual assault which was upheld by the Court of Appeal in the Australian Capital Territory. It is the basic contention of the applicant that the conviction was unsafe because the only evidence against him was DNA evidence. We submit that in principle he should not have been convicted on DNA evidence alone, but particularly in the facts of this case where there was additional evidence which was in part exculpatory he should not have been convicted.

The fundamental premise to our submission is that there was no other evidence than the DNA. In our submission, that is apparent from the facts of the case. It is also apparent from the manner in which the trial was conducted by the Crown Prosecutor. In the additional material provided by the respondent there is a copy of the closing address of the learned Crown Prosecutor in which he quite squarely summarised the case at page 183 of the booklet entitled “Respondent’s Materials” as a neat issue between what he described as science and the testimony of the applicant and his partner. At the top of page 183 your Honours will see that the learned Crown Prosecutor said:

At the end of the day, does the science tell you, that the only person who could have committed the act on [Ms K] on 11 March 2005 . . . in that desolate area, was Mr Forbes, or does his explanation that he was at home that evening, win you over.

Again, he goes on to talk, in the next paragraph, about whether they have shown that science was wrong.

In any event, your Honours, we would say that it is clear enough from the facts that there was no other evidence which was capable of incriminating the applicant than the DNA and it does squarely come before this Court as a matter which the Court can consider in principle as to whether the evidence of DNA alone is capable of establishing the guilt of an accused and, in particular, on the facts of this case.

FRENCH CJ: Well, it is the facts of this case we are concerned with and is the evidence that was before the jury when you speak of DNA evidence - I take it that you are using that as a shorthand for the evidence of the taking and matching of samples and the significance thereof given at this trial?

MR HASTINGS: Yes, your Honour. I will take your Honours to the precise evidence shortly.

HAYNE J: The larger proposition you advance assumes necessarily, does it not, that DNA evidence could never rise higher than it did in this trial?

MR HASTINGS: Yes, your Honour.

HAYNE J: Why should we embrace that proposition is I think the question you need to confront when you come to that larger question. But we begin, do we not, with what was the evidence at this trial?

MR HASTINGS: Yes. Indeed, your Honour, but it would seem that the evidence on the topic of DNA was typical, in the sense of outlying principles and theories upon which DNA has been based since it was first acknowledged as evidence capable of being received as expert evidence.

HAYNE J: That makes a number of assumptions about what this jury was told by the witnesses who gave evidence at this trial which, at least for my own part, requires some demonstration because I should say to you at once,
Mr Hastings, that it is not evident to me exactly what it was that the jury was told at this trial beyond the fact that the relevant samples provided a match. They could go to that point, but beyond that it is by no means clear to me what the evidence showed.

MR HASTINGS: I will take your Honours to the evidence in due course. Might I just say at the outset, it is of secondary importance to my client as to whether this represents a matter of broad principle or whether, simply on the facts of this case, the facts attract a general - - -

FRENCH CJ: Probably of no importance at all.

MR HASTINGS: That is right. Can I just summarise the way in which we submit the DNA evidence as led leads to the conclusion that we advance. As the evidence will reveal when I go to it, the fundamental premise of DNA evidence as outlined by the expert, Mr Walsh, was that it provides an estimate of the probability that one hypothesis was more likely than another.

The evidence of DNA does not prove facts by itself, it is clearly inherently limited. It is not an expression in itself of real or known facts but rather is a statistical projection based upon data taken from a comparatively small number of people from the population. What we submit that leads to is that in a vacuum DNA evidence does not entitle any conclusion on facts at all, it needs to be assimilated into the evidence of the facts of the trial in order to give the estimate which has been provided of a theoretical nature some factual weight in the context of the issues in the trial.

HEYDON J: So you are premising your present submission on an attack on the low number of the people in the ACT database, 400 odd or 600 odd, whatever it was?

MR HASTINGS: I am not attacking it your Honour. It was accepted by the evidence of the expert that that was a satisfactory number for the database.

HEYDON J: It was an estimate or a hypothesis derived from data based on a comparatively small number of people. What would be a comparatively satisfactory number of people?

MR HASTINGS: Yes, there was no challenge to the adequacy of the database. My point simply is that it is a very small database from which figures are extrapolated in order to give huge figures as to the frequency with which certain profiles appear within the population.

HEYDON J: In the United Kingdom it is 3 million apparently. What would a satisfactory figure be for the ACT, or a better figure than 400 or 600?

MR HASTINGS: It does not matter, your Honour. The point is that it is not a survey of the entire population.

HEYDON J: Anything less than totality is fragile.

MR HASTINGS: I am not sure that I need to say “fragile”. It just puts the evidence into context to note that it is based on a quite small number of people and then becomes a theoretical estimate of how that pattern is to be reflected by the whole population of the community in which the evidence is given.

BELL J: Another way of describing the process that the expert looking at the results of the matching arrives at instead of a likelihood ratio is an opinion concerning the expected frequency of such a genotype in the general population occurring at random. Is that so?

MR HASTINGS: Yes.

BELL J: So that to raise the question that Justice Hayne directed your attention to earlier, in some cases it might be, having regard to the variables in a given genotype, that the expected frequency will be expressed in terms of one in a million, for example, which may be the evidence that was given here, and that might lead to a certain conclusion concerning the ability of evidence of that character alone to sustain a conviction that would be different to a genotype of greater rarity, as is commonly found in evidence of this sort. It just seems to me to create a, perhaps, difficulty with your broader proposition.

MR HASTINGS: With resect, your Honour, we would see the issue the same and that is that it is just a matter of theoretical estimate as to the frequency with which the profile occurs in the population because the only information which is known comes from the 620-odd entries in the database. To anticipate the frequency across the population at large is a matter of theoretical and statistical calculation rather than dealing with a real fact.

BELL J: Appreciating that, there is a material difference in an expected frequency of one in a billion persons and one in 10,000 persons. Why cannot a jury evaluate those propositions for what they are worth?

MR HASTINGS: They can, your Honour, but we submit based upon a tangible fact in the case which links the applicant to the situation in the first place. This is not squarely answering your Honour’s concern, I know, but can I just finish and come to what we see to be the real crux of the legal issue and that goes back to the fundamental task of the DNA expert in providing a figure which provides the estimate of the probability that one hypothesis is more likely than the other. What we submit in the context of the criminal trial is that one cannot do that in the abstract or in a vacuum, because to enable the Crown to have its hypothesis assessed and evaluated in this manner means that there must be some basis for the Crown to put forward that hypothesis.

HAYNE J: There are several steps in that which I think may need to be teased out in quite some detail, Mr Hastings. First, that form of analysis differs, does it not, from a frequency analysis? Frequency analysis and likelihood ratios are two distinct forms of analysis, are they not?

MR HASTINGS: Yes.

HAYNE J: So you have gone now to a likelihood ratio analysis, have you?

MR HASTINGS: That is how I understand the evidence of the expert to be expressed, your Honour.

HAYNE J: Yes, and the meaning to be attributed to that evidence depends, does it not, in part, upon what is meant – what are the hypotheses that are being compared. Is that right?

MR HASTINGS: Yes.

HAYNE J: Were those hypotheses ever identified with any particularity at this trial?

MR HASTINGS: They were clear enough, your Honour. One was that the accused was the person who was responsible for leaving the samples on the clothing of the victim. The other hypothesis was that according to the evidence of the accused, that it was not him.

HAYNE J: But are those the hypotheses which I think Mr Walsh was the witness concerned, perhaps Ms Pearson, but are those the hypotheses those witnesses were comparing?

MR HASTINGS: Yes, your Honour. I will come to Mr Walsh’s evidence on the topic, but can I just not be deflected yet from my basic proposition which is a quite basic forensic assertion and that is that in the criminal trial context, the Crown should not be allowed to put forward a hypothesis without a factual basis for it, which in turn of course leads back to our basic proposition and that is that DNA alone should not be a basis for conviction. There should be some other evidence which would justify the finding of guilt against the accused, not on its own but certainly complement the DNA evidence.

I draw a parallel in a very general way with the way in which the Court has laid down a rule about circumstantial evidence in the sense that it is clearly to be understood that a person is not to be convicted on the basis of circumstantial evidence unless it is capable of excluding a reasonable hypothesis of innocence.

Now, that is a clumsy parallel but, nevertheless, it is a concept which we would seek to import into this situation by asserting that the Crown should not be allowed to put forward a hypothesis to attract the application of the DNA evidence unless there is a factual and evidentiary basis for it, otherwise it becomes a complete bootstrap argument where the Crown, with no evidence at all, says “We put forward our hypothesis on the basis of DNA evidence and now we will rely upon the DNA evidence to give a likelihood of how correct that is”. In my submission, it leads to a recognition of the fact that the Crown should not be entitled to put forward a hypothesis of guilt unless there is some factual basis for it other than the evidence that it then seeks to invoke.

HEYDON J: Does that not mean that the DNA evidence was inadmissible?

MR HASTINGS: It could have been, your Honour; yes. There were various points at which this point could have been taken. One of them was at the end of the evidence – just to take a voir dire point I suppose and say this evidence is never capable of establishing the guilt of the accused. The other would be to take a no-case point at the end of the evidence.

HEYDON J: There would be some practical difficulties in some cases because you could never be sure whether or not there was other evidence.

MR HASTINGS: That is right. You could raise the point - - -

HEYDON J: It would depend on what the jury might make of it – let us put on one side that possibility with this case but apart from disbelief of the accused, I do not believe any other evidence has been pointed to. It could not have been pointed to from the close of the Crown case.

MR HASTINGS: No. Your Honour, I am quick to concede that there were various alternative avenues available to the accused in this matter which could have led to the same result, but in the end it was allowed to go to the jury. He was convicted and the point was taken on appeal. It is from that judgment that we seek leave to appeal.

BELL J: Coming back to your broader proposition, Mr Hastings, if one were to look at other areas of expert evidence, and for present purposes at fingerprinting, underlying the expression of opinion that one fingerprint is identical to that of the accused is the assumption that no two people in the world have the same fingerprint. I am not aware that that has ever been established as a fact.

The evidence concerning DNA is commonly given not in terms of an expression of opinion of identity for the reason both that the whole genome is not tested and the entire population of the world has not been tested. So as a matter of rigorous science such an opinion cannot be expressed. But it is still not clear to me why, assuming the evidence is able to be tested and the results obtained by the Crown independently verified by testing by a defence expert, if the frequency in the expected population is of a sufficient rarity it is not open to conclude on that alone, beyond reasonable doubt, that the donor of the sample is the accused.

MR HASTINGS: Your Honour has raised the question of fingerprints and it is true, obviously, that there is not an exhaustive analysis of all the fingerprints in the world to substantiate what seems, however, to be an accepted position that fingerprints are unique. So there is that underlying premise which justifies fingerprint evidence but that is not the case in relation to DNA because there is a recurring frequency of DNA profiles within the limited survey that is conducted of the human DNA strand.

BELL J: The matter that I am taking up with you really reflects the more rigorous approach as far as the science in DNA analysis is concerned, does it not? One comes back to the point that with the fingerprint, one assumes that is correct to say that if you have 12 or nine or however many points of identity, you will not find another human being presenting such a profile.

MR HASTINGS: Yes.

BELL J: When you speak of this evidence as being in some way lacking a real quality you do not seem to come to terms with the fact that the DNA evidence itself will vary in terms of its cogency and that will depend in instances on the relative rarity of the combination of nine loci and the degree of variation that is present in the expected population.

MR HASTINGS: Well, I am sorry, your Honour, I certainly accept that proposition and that is that the statistics can vary from modest return to what can be mind numbing almost in its odds, I suppose. I certainly accept that but in our submission, your Honour, it still does not change the fundamental character of the evidence that it, by giving that figure, has ventured into a realm of estimate rather than dealing with something which is factual.

FRENCH CJ: Just going back to the focus on the evidence that was given to the jury and, I think, we need to look at precisely what they were told, in relation to Ms Pearson’s evidence, I do not think she actually mentioned any numbers, did she? She just gave the verbal scales.

MR HASTINGS: Yes.

FRENCH CJ: So that what the jury were told in the course of her evidence was that results indicated an either strong, in relation to one of the samples, or extremely strong, in relation to the other sample, probability that they came from some other source. Was that anything more than a kind of taxonomic label on the numbers? I do not think she was expressing it as an independent opinion. Is that right?

MR HASTINGS: It was an accepted formula by reference to scales of figures.

FRENCH CJ: So if it is more than one in a million it is called extremely strong, if it is from 100,000 up or whatever, it is just strong.

MR HASTINGS: It was very strong and there was a lower limit of over 10,000 which was strong. Well, your Honour, that was an accepted course which was adopted in the trial.

FRENCH CJ: Yes. She had gone through the application of the appropriate equations, the appropriate multiplications, as it were, and she had come up with a figure. This was not given to the jury by her but rather the label attached to that figure.

MR HASTINGS: That is right.

FRENCH CJ: What more did Mr Walsh then tell the jury?

MR HASTINGS: He told the jury more in terms of the premises upon which the calculations had been based. It may be convenient if I can take your Honours to Mr Walsh’s evidence on the general principles now and, in particular, picking up the point your Honour the Chief Justice has just raised at page 146 of the appeal book at around line 30.

HAYNE J: The numbering of this appeal book is deeply confusing. I think the real numbering is the typed numbering at the foot, Mr Hastings, is it not?

MR HASTINGS: I am sorry, your Honour, yes, it is.

HAYNE J: We have about 27 numbers on every page.

MR HASTINGS: I am sorry, your Honour, yes. Referring then to page 133 of the appeal book, at line 30 Mr Walsh dealt with the matters that the Chief Justice was just referring to, and the answer which follows at line 32, in our submission, is significant and in a way captures the crux of his evidence about the fundamental principles - - -

FRENCH CJ: Before you go to that line, he was not actually telling the jury what the numbers were in this case, but rather the significance of the verbal scale.

MR HASTINGS: Except that at the same time it was a lead in to what the evidence meant in any event because he went on to say:

The likelihood ratio –

without necessarily dealing with the terminology which was being used –

is the name for the statistic that we calculate. It’s called a ratio because it compares the outcome of two different probability estimates, and it weighs one against the other and creates a ratio. The probability estimates are based around some hypotheses that in the legal context we typically call the prosecution hypothesis and the defence hypothesis.

Really, your Honour, that is the point to which my submission earlier was directed and that is that in order to attract that comparison, the prosecution hypothesis needs to have a justification in the form of an evidentiary basis which recalls some evidence other than the DNA itself.

HAYNE J: Understanding that to be a point that you make, can I look at the answer at 133 and ask you whether elsewhere in the evidence of Mr Walsh or Ms Pearson led before the jury content is given to prosecution hypothesis and defence hypothesis. Can I also ask you whether in the evidence of either of those witnesses, content is given to the expression he chose “based around some hypotheses”, that is, my base question is what where the jury going to make of what they were told by Mr Walsh in this answer?

MR HASTINGS: I do not think there is a short answer to what your Honour has asked me other than it was fundamental to the conduct of the trial that there were two cases, the prosecution case and the defence case. The prosecution case was that it was the accused who committed the offence because his DNA was matched with the samples taken from the victim, whereas the defence case was that it was not me, it must have been somebody else.

HAYNE J: I understand that. I understand that was the forensic contest, but what were the jury to make of this answer. They are told that they are dealing with a likelihood ratio. They are told that that is a ratio of two different probability estimates. They are told that the estimates are “based around” – I do not know what a jury was going to make of that – “are based around some hypotheses”.

Are they told at any point in the evidence what those hypotheses are, that is, is it explained to the jury what the steps in reasoning are that they are being invited to take? If they are not, then that is one set of issues we have to confront. If they are told what steps they are being invited, by the prosecution, to take from the premise that we can observe identical DNA profiles to the conclusion asserted by the prosecution, “From observation of identical profiles you can conclude that the accused left the biological material that generated the profile from the garments”, then I can begin to understand it. But unless we take those steps, Mr Hastings, I am left simply with a collection of words.

MR HASTINGS: In a sense, I suppose, your Honour, it is in the applicant’s favour if these matters are not explained to the jury because it enhances the risk that the jury does not understand this evidence, in the first place, if they are not given the assistance of - - -

HAYNE J: It is not a case of understanding, it is a case of what was the evidence that was before the jury which they were invited to use to reason from a premise, a premise, namely that the two profiles are identical, to a conclusion not only are the profiles identical, but one of them recovered from the complainant’s garments was left there by the accused.

MR HASTINGS: I am reminded, your Honour, at page 114 in the course of Ms Pearson’s evidence, who gave a more fulsome answer than had been given by Mr Walsh, at line 24 in cross-examination she was asked a question which led to the answer:

Well, that’s why we do a statistical calculation. And in the statistical calculation we look at two different hypotheses, so the first one may be that the person contributed to the mixed DNA profile, and the second hypothesis might be that another person - or two other people chosen at random from the general ACT population may have contributed to that mixed DNA profile.

BELL J: But was that an explanation with respect to the sample that was a mixed sample?

MR HASTINGS: It was in that context, your Honour; yes.

HAYNE J: All cast in terms of may be and might be. The hypothesis may be this, might be that.

MR HASTINGS: Your Honour, at page 272 in the course of the summing-up the trial judge referred to the evidence of Ms Pearson. At line 20, the paragraph begins with a general reference to DNA testing and the techniques. In relation to the sample which is 2A@, which was the sample from the black pants, his Honour reminds them of a caveat which:

Provided extremely strong evidence to support the contention that the DNA reference sample relating to the accused was the source of the –

DNA obtained from that sample. I am not sure that I can point your Honour to any more - - -

BELL J: I think at 157, going over to 158, Mr Walsh explains in general terms the approach to the assessment of the frequency of the appearance of such a genotype. Then he explains the reasons why one then multiplies the figures for the expected – arrived at at each allele to obtain the ultimate figure, which I think there is a figure as to the expected frequency within the population of that genotype.

MR HASTINGS: Yes, that is so, your Honour. In answer to your Honour Justice Hayne, I am not able to find, even in the summing-up, any more direct references to what it was that Mr Walsh was talking about. However, might I nevertheless take your Honours to some further statements of general principle by Mr Walsh. That includes over the page, at page 134, from where I was previously when he was asked about what “strong” and “extremely strong” meant and at line 6 he was asked:

Now these are statistical figures, are they not?---Yes.

What does it mean when you say greater than 10,000, or greater than 1 million, from a statistics point of view?—Well, that’s – I guess from a statistics point of view it’s simply the outcome of the statistical – particular statistical evaluation we’ve undertaken . . .

No, it doesn’t. That figure, if we were to use a probability as you have there of 1 in a million, it can be used to provide an estimate of how often you might be expected to observe that particular DNA profile as we talk about in this circumstance. But it doesn’t allow you to make a prediction, or to actually say exactly how many you would see in a population of for example 1 million.

At page 137 at line 16 he again gave a further general answer. Without quoting the question, he said:

No. That’s correct. We’re able to use those probabilities as I said as a way of estimating, if you like the commonality or in many cases, the rarity of a particular profile in a particular population. But they can’t be used to provide an exact number. They are estimates. They’re statistical estimates only. And they aren’t real numbers, they aren’t real observations. So it’s important not to translate them from the estimates that they are to actual real expectations or real observed numbers.

He repeats the same point in the next paragraph at around line 34 when he says:

You have to be cautious to remember that the statistical probability is a statistical probability and it is not an observed exact number.

FRENCH CJ: Incidentally, so far as the jury was concerned, the “extremely strong” designation given to one set of results by Ms Pearson, as explained by Mr Walsh, could have implied a figure of one in a million or one in a billion.

MR HASTINGS: Yes, it was in excess of the minimum.

FRENCH CJ: But they did not know what the figure was.

MR HASTINGS: No. I will not weary your Honours with too much of Mr Walsh’s sometimes lengthy answers, although in some respects they were useful in terms of, at least by repetition, giving the jury a fuller opportunity to understand the concepts being spoken of. At page 142 he was taken back to the significance of “extremely strong” and again, if I can just read part of the answer, at line 12:

you mentioned at the early part of this discussion the first assessment that’s made by a scientist in this area is to look to see if an individual can be excluded on the basis of their profile. Because that can be an absolute decision, a decision whereby that person is no longer considered as associated with that item of evidence. When you have a situation where a person on basis of their profile cannot be excluded, because their profile corresponds with the profile observed in a crime sample, and then as I mentioned on Tuesday that’s when we need to talk in statistical terms about the strength of that particular association. One thing that we cannot say as scientists, with certainty, is that what we have observed is absolutely what has happened. We talk in terms of the DNA results because those are the results that we’ve produced, and that is in essence our evidence. It’s not always possible, in many cases it’s not possible, for us to extrapolate our conclusions from that DNA environment to an environment where we talk about perhaps what might have been alleged to have occurred at the offence level or in the interaction between the complainant and the perpetrator. So we’re very careful what we say to retain our comments or restrict our comments so that they deal with the DNA results that we’ve obtained and don’t sort of trespass, if you like, into the area that is related to the actions or activities that might have occurred at the offence – at the time of the offence or things of that nature.

Then the next answer which commences at line 38:

Yes, that’s also another component to that, and another reason why as scientists we don’t speak in absolute terms, because our results that we present are based on a limited set of [facts], in this case 10 tests, and we haven’t tested the DNA exhaustively, and we can’t say therefore that the entire DNA, including those areas we haven’t tested, would also match. So we restrict ourselves again on the basis of the tests that we have undertaken.

In a way, I suppose, that captures what has already been accepted and that is that there is this significant restriction or limitation on the evidence itself which, in our submission, means that unless there is a factual base to which the formula is to be applied, then it cannot have a meaning in a particular case.

FRENCH CJ: At page 192, Mr Walsh in cross examination gave an answer at about line 10 to the question or the proposition if all the alleles all match up, it does not mean that it is that person’s DNA. Then he said:

No, we can’t say, as we discussed earlier . . . that that person is categorically the source of that DNA, just that on the basis of those results, they – they can’t be excluded as being a possible source.

Then the next question, as it were, restated that proposition and he answered again in the affirmative. Is that consistent with the evidence that he had given previously or was the evidence that he had given previously stronger than that in terms of the use to which this evidence could be put?

MR HASTINGS: Well, your Honour, I thought it was consistent with the paragraph that I recently read from page 142 where he dealt with the position which you can absolutely exclude somebody where there is not a match.

FRENCH CJ: You can exclude somebody who is not a match. What he is saying here, it seemed to me to be, that if there is a match, the most you can say is that person is not excluded. Is that what he is saying or am I misunderstanding it?

MR HASTINGS: No, I think that was what he was saying, your Honour, but then, of course, it becomes a matter of statistical estimate as to the extent to which he may be included.

BELL J: And absent taking or mapping the genome of the entire population of the world, as I understand Mr Walsh, that would always be the case, that is, that one could say no more than that an individual was not excluded no matter how rare the particular genotype was.

MR HASTINGS: With respect, your Honour, that may be overstating the situation. I mean, one could increase the number of loci, for example, presumably, and get closer to a point at which one could be certain. I mean, I am drawing again on the fingerprint precedent that experts accept, it seems, without question that fingerprints are unique. I mean, I am not the person to judge, but it would seem to me that without surveying the world one could just increase the number of loci examined to virtually reach the same point but the way the program works it selects nine plus the gender loci in order to carry out the calculations.

BELL J: Yes. I think somewhere there was reference, either in the evidence of Ms Pearson or Mr Walsh, to the difficulty created by not having mapped the DNA of every person in the world.

MR HASTINGS: I think that was Mr Walsh, your Honour. Yes, that is right. Indeed, Ms Pearson may have said the same thing.

HAYNE J: But the debate we have just been having demonstrates does it not, that the use of DNA evidence by a jury will depend upon a series of steps. In this case we focus upon two. The two steps in issue in this case are, first, are the profiles obtained from the reference sample and obtained from the complainant’s clothing identical? Step one. By the time the case went to the jury it was the accused’s speech, as I understood it, that there was no dispute that the profiles were identical. But the second step that has to be taken by a jury is going from the observation of identity of profile to a conclusion about whether it was the accused who deposited the biological material recovered from the complainant’s clothing, and it is in connection with that second step that we have evidence given about statistics. Is that right?

MR HASTINGS: Yes.

HAYNE J: That statistical evidence seems to have, in part, made reference to questions of frequency, in terms of one in a million, one in a whatever number was inserted, but also seems to have invoked a different notion – a notion of likelihood ratios. Is that right?

MR HASTINGS: Yes.

HAYNE J: As I understand it, the Crown went to the jury on the footing of likelihood ratios.

MR HASTINGS: Yes.

HAYNE J: The evidence that you have thus far taken us to about likelihood ratios and what they mean includes, perhaps centres upon the answer given by Mr Walsh at page 133.

MR HASTINGS: Yes.

HAYNE J: A question which emerges is whether that was enough to put before a jury to permit a conclusion of persuasion beyond reasonable doubt.

MR HASTINGS: If the answer to that is no it was not enough, then I embrace it readily, but I am not sure - - -

HAYNE J: You astonish me, Mr Hastings.

MR HASTINGS: I am not sure that I can endorse it in a positive sense for the reason that I simply gave earlier, your Honour, that I just think it was clearly understood throughout the trial that there were two versions of events – one which supported the accused being involved and the other that he was not. That issue was the issue in the trial.

HEYDON J: Your case is really that that which supported the Crown’s versions of events is a nothing. It is just an abstraction, it is mad scientist stuff. If that is so, why does it make a difference that there might be some evidence against the accused? I may have misapprehended the way you have been putting your argument and perhaps the way similar arguments have been put in the cases in the past, but one view of it is that the proposition is you cannot rely on this evidence unless it is corroborated or you cannot rely on this evidence unless there is independent evidence of guilt. It is a very rare proposition, probably non-existent in our law outside statute that evidence is admissible if corroborated but not if it is not. Why does the existence of some other evidence, for example, if your client had been seen nearby 10 minutes earlier apparently innocently engaged, why does that suddenly make all this other evidence fit to go to a jury and be the basis of a conclusion of guilt?

MR HASTINGS: Your Honour, my non-technical answer and legalistic answer, I think, is that the Crown need a factual basis for advancing their hypothesis and the Crown should not be allowed to advance a hypothesis without some justification and then rely on DNA to justify it. It is a somewhat simplistic proposition, your Honour, but nevertheless, in terms of a criminal trial, in my submission, the Crown should not just be allowed to pluck a hypothesis out of the air and put it to the expert and say, well, what do you say about the involvement of the accused now, without there being a proper basis in the evidence for that hypothesis to be available to be considered.

HEYDON J: As you said earlier, a factual base to which the formula can be applied. Is that really how it works?

MR HASTINGS: Your Honour, in my, again, somewhat crude analogy, it would seem to be it is like using a multiplier to nought. If you multiply nought by nothing you get nothing. However, if you give the subject a value even of one, all of a sudden the statistical figure when multiplied gives a result, but unless you have something which justifies the application of the formula in the first place, then one should not be entitled to get any more than zero, which is where one starts.

FRENCH CJ: Why cannot the Crown say, “We took a sample from the complainant’s clothing. We took a sample from your client. We found a match which occurs randomly at a certain frequency. A reasonable hypothesis to be constructed upon that – that is supportive of the hypothesis that your client was present at the time of the offence.”? The question that then has to be addressed is whether there is another reasonable hypothesis consistent with innocence, even if disbelieved. That is the standard approach to this sort of thing, is it not? We are not constructing a hypothesis first and using the DNA to justify it. They are using the DNA to support a hypothesis. That is the way they are approaching it.

MR HASTINGS: Well, your Honour, it would seem to me that they are using the DNA to give them a hypothesis in the first place and then using the DNA to bolster it by saying, well, now we - - -

KIEFEL J: What is the hypothesis that you are referring to in this regard?

MR HASTINGS: That it is the accused who is the offender.

KIEFEL J: Rather than the hypothesis being that he is the person who has deposited the material which has been analysed?

MR HASTINGS: I am sorry, your Honour. Yes, your Honour is correct. I mean, technically that it the first step, but the second step follows almost automatically, I would think, in a case such - - -

HAYNE J: Not in every case.

MR HASTINGS: Not in this case, your Honour.

KIEFEL J: But if the hypothesis is that he is the person that has deposited the material, why is a factual premise such as, he was seen in the vicinity, any necessary premises for the hypothesis?

MR HASTINGS: Because it is a starting point to having some involvement between the accused and the offence, otherwise there is none, apart from the fact that a DNA analysis was carried out which purports to identify him with a matching profile and that therefore there is a million to one chance that it was - - -

KIEFEL J: But the first is a circumstance. The factual premise may be a circumstance. The hypothesis is not simply a circumstance, though, is it? It is more than that.

MR HASTINGS: The hypothesis, as I understand it, is to be the Crown theory to the effect that the accused is the offender.

BELL J: Mr Hastings, if, instead of going for the larger proposition, one were to look at the smaller proposition, which is that this verdict was unsafe, Mr Crown went to the jury on the basis of asking, does the science tell you that the only person who could have committed the act was the accused, the evidence in the way that it was presented, and looking at this for present purposes on a view that at one stage Mr Walsh’s evidence was consistent with a view of an expected random match of one in a million, then absent any other circumstance, is not your point that that lacked sufficient cogency to support a verdict beyond reasonable doubt since, whilst it showed the accused was likely to be the contributor of the sample equally in a population the size of Australia, it might be assumed that there were others who would answer the description of being a sexually active male who, on the statistical evidence that was presented, one might expect to find had the same genotype?

MR HASTINGS: Yes. We certainly, your Honour, have a second limb to our argument away from the general principle and that is that on the facts of this case it was unsafe because there were other factors which did not include, and whether they were exculpatory or not is a matter of debate, but they certainly did not include the applicant as the person who had committed the offence and by reference to the descriptions given by the victim and so forth.

BELL J: The matter that I am raising with you is simply that the evidence, insofar as it went of relative rarity, fell short of enabling a jury to conclude identity beyond reasonable doubt, absent any other circumstance. Although it is to be noted that one circumstance was that he contributed the DNA sample on an occasion when he was present in Lyneham and Lyneham was the scene of the offence. So I suppose that might figure in a jury’s approach to the evidence.

MR HASTINGS: Yes. Although I did not see any great reliance upon that circumstance in the way the case was conducted.

BELL J: No.

MR HASTINGS: I otherwise accept what your Honour has indicated. Your Honours have no doubt noted the terms of Ms Pearson’s evidence in relation to the particular items. I am not sure that I would gain anything by going to her evidence. She used the same terminology, of course, and in simpler terms used the same explanations as were given with perhaps more authority by Mr Walsh. As your Honours have observed, the way the matter was assessed was on the basis of descriptions, strong, very strong or extremely strong, rather than by statistical information. That was done by acquiescence, certainly on the part of the defence, and is not something about which we can complain. It does, however, lead to an interesting outcome in that it has the witness then expressing the opinion that it was extremely strong evidence that the sample had come from the applicant.

FRENCH CJ: Is that what the witness did? Even in the terms in which the evidence was given, the witness did nothing more, did she, than to apply the verbal scale? As I understand it, she was not expressing some independent opinion or judgment about the significance of the figures. She was saying this is how we have labelled figures in this range or not “we”, but this is how they have been labelled by relevant experts.

MR HASTINGS: Your Honour, I had in mind, in particular, the answer at page 89, line 35 when dealing with her conclusions about the result of the comparison of the Forbes reference sample and the material from the pants, which was sample 2A, at line 35 she said:

In my opinion, these findings, when considered in isolation from other information, provide extremely strong evidence to support the contention that the donor of the DNA reference sample relating to Benjamin James Forbes is the source of the DNA profile obtained from - - -

FRENCH CJ: But that conclusion was simply an application of the verbal scale, was it not?

MR HASTINGS: Yes. It leads to, in a way – it is stronger than curious, but the alternative statistical expression is that it is a million to one more likely to be one person than a person at random.

FRENCH CJ: But what she did was she crunched the numbers applying a formula which had been developed by others and got the figures and, as I understand it, applied the relevant verbal scale.

MR HASTINGS: Yes.

FRENCH CJ: What appears in the report is not an expression of opinion about the strength of the inferences to be drawn from those figures. It is just the application, as Mr Walsh later explains, and I think she explained also in her evidence, of that verbal scale.

MR HASTINGS: Except the terminology used is that it provides extremely strong evidence.

FRENCH CJ: I know that is the terminology, but it was because there was a so-called verbal equivalent to be delivered to a jury instead of numbers.

MR HASTINGS: The traditional expression is perhaps slightly more sterile in that it would otherwise have been said that it was a million to one more likely that the donor of the sample was from Forbes than from a person at random in the community.

FRENCH CJ: No, all that this tells you is that it is a million to one or more, is it not?

MR HASTINGS: Or more, yes.

FRENCH CJ: Up to a billion to one. It could have been a billion to one.

MR HASTINGS: It could be, yes. I accept that, your Honour, but nevertheless - - -

FRENCH CJ: All this under the rubric of “extremely strong”.

MR HASTINGS: Certainly it just seems to be edging closer to the prosecutor’s fallacy that it was the accused who contributed the sample by expressing it as “extremely strong evidence to support the contention that”. As I was saying, your Honours, the alternative statistical expression seems to be a slightly more sterile way of expressing the conclusion than intruding into the case to use terminology which classifies the evidence in the case as being extremely strong.

Your Honours, in our submissions we have set out a series of cases which contained expressions of conditions, in our submission, about the admissibility or the effect of DNA evidence from the time that it was acknowledged as expert evidence in the early 1990s and - - -

HEYDON J: You seem to have a decision in your favour of the New South Wales Court of Criminal Appeal, Chief Justice Gleeson, Justice Cripps and Justice Abadee - Green’s Case. That statement by Justice Cripps is the ratio of the case.

MR HASTINGS: Yes, and, your Honour, that was adopted and applied subsequently as well in Pantoja and also in Milat in the passages which we have set out in our submissions. There did seem to be acceptance at that early stage that there was a clearly acknowledged limit on the effect of DNA evidence which would preclude a conviction on DNA evidence alone. The authorities to which we have referred include the Victorian case of Noll which followed shortly thereafter, in which a similar expression was given.

HAYNE J: Does this reliance on these cases depend upon a premise that the science has not altered in the intervening period, and by “the science” I mean the statistical science?

MR HASTINGS: Yes.

HAYNE J: It may be right, it may be wrong. How are we to know whether it is right or wrong?

MR HASTINGS: Your Honours do not. But putting it from our point of view, there is no evidence that technology has changed in any significant way which would justify departure from those statements of principle.

HAYNE J: Do not misunderstand me, I am not referring to the biology of it or the biological analysis generating DNA profiles. What I am referring to is statistical analysis, population, genetics and the like.

MR HASTINGS: There is no evidence as such. In the course of Mr Walsh's evidence, I think he acknowledged that in recent times the database in the ACT had increased from 400 to 620 numerically but there was no indication whether in qualitative terms there had been any change in the way in which the data was collected.

HAYNE J: I understand that, but what I am trying to grapple with, Mr Hastings, from a very imperfect base - the fault is mine not yours - underpinning this evidence I think Mr Walsh said, did he not, that there is some, what was it, heavy-duty science or something, was there?

FRENCH CJ: Heavy theory, I think.

HAYNE J: “Heavy theory”, I think, was his expression. I took that reference to be to statistical analysis, not to the biology of it or to the involvement of PCR analyses or anything of that kind but the statistical analysis is quite complex. Now, you invite us to take account of decisions of courts which, did they turn upon the particular scientific evidence that was led in those cases because if they did, what is the legal principle that we would then have to adopt? If science has moved on in the intervening time then harking back to what was decided by courts on other scientific bases at an earlier time may have some difficulties. I do not say it does but it may.

MR HASTINGS: Well, no doubt technology has improved and the result may be on one view more informative and indeed, more reliable, but the basic tenets of 10 loci and so forth from specified areas within the DNA have been constant, as I understand it, from the time when the authorities earlier expressed their reservations about the capacity of the evidence.

KIEFEL J: My reading of Green’s Case, to which reference has just been made, is that the Crown case stopped at what their Honours there call the eighth point which is the matching point and that the ninth step which is referred to at page 9 which concerned the statistical probabilities, that although the results matched might not be from the same person was not gone into and was not put before the jury and without that step, as I understand the judgment there, a conviction could not stand.

MR HASTINGS: That is so, your Honour, and the respondent has drawn attention to the special circumstances in which that statement was made in Green’s Case. However, I think by the time one moves on to the subsequent cases of Pantoja and Milat that limitation is not evident from those judgments and it seems to be a more broadly applied principle without the limitations which emerge from the facts of that case and similarly when one goes to Noll, the Victorian Supreme Court of Appeal case which we have also referred to, again the case does not seem to be limited by any particular circumstances of the evidence in that case.

FRENCH CJ: That is R v Noll [1999] VSCA 164; (1999) 3 VR 704.

MR HASTINGS: That is right. The judgment of paragraph 25 cites the New South Wales cases and expresses the general proposition that DNA profiling establishes no more than that the accused could be the offender, not that he or she is the offender and refers then to Doheny and Adams, the English case. The South Australian Court of Criminal Appeal looked at the matter again in 2002 in the decision of Karger, to which we refer in our submissions.

FRENCH CJ: That was Justice Mullighan’s fairly extensive discussion, was it not?

MR HASTINGS: Yes, that is right, your Honour.

BELL J: That was the case where there was the challenge to the Profiler Plus technique.

MR HASTINGS: Yes. Then again caution was expressed about the use of the DNA evidence and the need to examine it in the light of other evidence in the case. We have referred to two subsequent decisions from South Australia of Rowe and Gum as being the two decisions that we were able to find in which the issue had been squarely put at an appellate level that DNA alone was not sufficient, and the decisions both upheld convictions where there was DNA only.

The case of Rowe, I think, caused some confusion in the citation that was used earlier, but it is [2004] SASC 427, and the relevant passage that we have set out in submissions, and we need not repeat, is at paragraph 40 in which the judgment simply concludes without reference to any of the authorities to which I have referred earlier, that it was a safe and satisfactory verdict even though DNA was the only evidence of identification of the appellant.

Similarly, the later decision of Gum, again from South Australia in the Court of Criminal Appeal, a similar outcome was reached, and in paragraph 32 the judgment of Justice Vanstone stated:

Plainly the evidence that DNA matching the appellant’s was found at each “scene” was extremely potent. The jury would have been entitled to view this evidence, standing alone, as sufficient proof of either count.

However, your Honour, we also say about that that there was no apparent reference to earlier authority before that general statement was made and - - -

FRENCH CJ: The debate in that case was really about the linkage between the analysis of the reference sample and the profile. There was a linkage question there, was there not, rather than a broader issue?

MR HASTINGS: Yes. We draw them to the Court’s attention because of the general statement which seems to embrace the proposition that DNA alone can be sufficient. We have also referred your Honours to the English cases of Adams and Doheny and Adams which were at about the same time as the earlier New South Wales case. Adams [1996] 2 Cr App R 467, the earlier, did hold that there was no general rule. On page 470 there is a long paragraph which ends with a sentence saying:

There is, however, nothing inherent in the nature of DNA - - -

FRENCH CJ: I am sorry, can you just give us the reference you are taking us to there, please?

MR HASTINGS: [1996] 2 Cr App R 467. I am sorry, your Honour, it may be page 469 – I have an electronic copy which was not - - -

HEYDON J: It is 467.

MR HASTINGS: The passage at, I think, 469, your Honour. I am sorry, your Honour, it is the paragraph which commences “DNA generally” – no I am sorry:

Mr Thwaites drew our attention to a number of authorities including Re J-S –

and some others, and then it is a long paragraph, which ends with the statement:

There is, however, nothing inherent in the nature of DNA evidence which makes it inadmissible in itself or which justifies a special, unique rule, that evidence falling into such a category cannot found a conviction in the absence of other evidence.

However, in the decision which followed only a month or so later in Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369, there is a paragraph which we did not actually quote in our submissions. At page 373, which does, however, contain the same caution which we advocate here, the last paragraph on page 373, around F begins:

The reality is that, provided there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio deduced from the DNA evidence, when combined with sufficient additional evidence to give it significance -

I emphasise those words –

is highly probative. As the art of analysis progresses, it is likely to become more so, and the stage may be reached when a match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence. So far as we are aware that stage has not yet been reached.

So that it does contain the qualification which we continue to advocate. Your Honours will have noted that in our submissions in reply we have addressed the same topic again in the light of a more recent statement by Chief Justice Spigelman that some of the reasonable caution may have abated with the improvement in technology. What we have sought to say in a way which is, I have to concede, not strictly relevant to the facts of this case because no issue was taken about contamination, but there has been, as we have endeavoured to show by reference to a number of sources, an increasing awareness of the risk of contamination and as a matter of general principle we would draw attention to those circumstances in order to - - -

FRENCH CJ: But that was not an issue in this case, was it?

MR HASTINGS: No, it was not and I am quick to concede that, your Honour, but to the extent that one might otherwise be looking at these issues in the broad and being inclined to assume that as time has passed there has been an improvement in technology which might engender more confidence in the results of DNA testing, that has to be offset by an increasing awareness.

FRENCH CJ: But it is not the technology that is really in issue here either, is it? It is the statistical theory that underlies it and what significance can be attached to the results derived from the application of the statistical theory?

MR HASTINGS: Yes, I agree.

FRENCH CJ: We are working here really on the assumption that everything was done, in terms of the actual physical steps taken, according to Hoyle.

MR HASTINGS: Yes, that is so. To the extent that there may be a general principle under consideration by the court that as a matter of a broad approach DNA alone is sufficient, in our submission, that needs to be viewed with some caution because of the increasing public awareness that there are other risks in DNA evidence than the statistical outcome which is engendered. Your Honour, we have also referred to some other collateral matters, such as the Victorian bench book, indicating that in Victoria, at least, the standard direction to juries is that they should not convict on the basis of DNA evidence alone.

FRENCH CJ: How does that factor into our calculations?

MR HASTINGS: It was a collateral fact relating to the general practice which your Honours may be interested in. Certainly when it comes to deciding this case, we do not suggest that it has any role to play, but to the extent that your Honours might be looking at this at a broader level, we simply bring that to your attention as what seems to be a fact in the real world that there and apparently in the United Kingdom it is the case that prosecutions on DNA alone are not generally run and if they are, they are met with the direction which is to be seen in the case that we cited of Reed

and Garmson where the last paragraph which I referred to refers to the judge’s direction in that case to the effect that the jury should not convict on DNA alone is now reported. We were reminded in [2010] EWCA Crim 2053; [2010] 1 Cr App R 23, the passage is at paragraph 211 where, without criticism, the summing-up of the trial judge was repeated in which the trial judge said:

The important thing is this. No-one suggests that this evidence on its own conclusively proves the guilt of the defendant on any count or goes anywhere near doing that. If all you had was the DNA evidence you could not begin to find Mr Garmson guilty on any of these counts because all the DNA evidence does (at the most) is show that he is one of the men who may have committed these offences and that is perhaps to put it at its highest.

No criticism or comment was made upon the approach which was taken in the trial in that case.

BELL J: But there clearly the evidence was that the rarity was such that the accused was one of a number of persons who might have contributed the sample. That does not say anything about the admissibility or the capacity of DNA evidence, depending upon the evidence, to establish a fact.

MR HASTINGS: Your Honour we would see that as no different to this case in that it was theoretically possible that others may have come into the same profile.

BELL J: But that it the smaller proposition.

MR HASTINGS: Yes. In general, I think, your Honours, that puts our position as well as I can, unless there is anything further.

FRENCH CJ: Thank you, Mr Hastings. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, the importance of whether there ought to be special treatment of the kind advocated by the applicant in this case for DNA evidence in criminal cases is undeniable. There is enough material before the Court in this case and within the Court’s judicial knowledge of the widespread resort to DNA technology and statistical evidence derived from its results to make that importance great and general. In our submission, however, for the reasons I am about to summarise and will elaborate, this is not a case where the grant of special leave to appeal to this Court and the determination of an appeal thereupon will do anything, with respect, to allay the kind of concerns expressed out of court – for example, in Ms Edwards’ article to which reference has been made by the applicant in their written submissions – arising from that undeniably generally important matter.

In summary, those factors for this case largely have to do with what we respectfully submit were understandable and, for all we know, sensible decisions made by experienced defence counsel. I am going to supplement the record beyond what you have not, of course, by tendering fresh evidence, but by handing to your Honours a document which is referred to in the voir dire material which, in our respectful submission, thoroughly vindicates as commendable in his client’s interest that which defence counsel did.

In summary, that material to which I will go provided a figure, not one billion, such as the Chief Justice has used for the purposes of illustration and argument several times, but for the comparison of the reference sample and the sample from the trousers said to be derived from semen, it is designated 2A@, it is one in 20 billion, a figure which is, in relation to human population, not least in the ACT, so fantastically large as numerically to have likely an imaginative, intuitive, intellectual and rhetorical force to a jury which it might be thought, once the hurdle of admissibility had been overcome and once the question of directions had been settled, would be devastating.

BELL J: Did you say it was 20 million?

MR WALKER: Twenty billion. There is discussion of some of these numbers in the voir dire. There is another number I think, 274 billion, but I am not going to take your Honours up with that. In our submission, while of course this Court, while all criminal appellate courts, are concerned about the integrity and propriety of procedures at trial, and there is a jurisdiction which should not simply be called “residual” to overturn convictions, notwithstanding deliberate forensic choices having been made at trial by the defence, this case is a million miles away from that. This case - - -

KIEFEL J: Forgive me, Mr Walker, but is this addressed to the wider question of whether or not such evidence may or may not sustain conviction?

MR WALKER: Not yet.

KIEFEL J: Because clearly this was not put to the jury and in this case this information cannot sustain the conviction.

MR WALKER: I am sorry, your Honour, I am not talking about the 20 billion being put to the jury; it was not. It was well understood at voir dire, so well understood that it was decided that there would be the agreement concerning - - -

KIEFEL J: What is its relevance then if it not then to the larger question, but not to the specific questions of this case?

MR WALKER: It shows the deliberateness of the forensic choice - - -

KIEFEL J: So?

MR WALKER: By which the evidence was presented in a manner which was not the subject of admissibility challenge or the seeking of any reliability warning or the seeking of any direction, there being no complaints about any of those junctures with respect to the material.

KIEFEL J: Yes, I see what you mean. The question then becomes, what do the jury make of the evidence that they had?

MR WALKER: Quite. That is why I respectfully accept what I might call the substantive issue, and I promise I will come to it, and I accept, and may I make it clear that the 20 billion has absolutely nothing to do with that. That is the force, if there be force, and that may be an issue for this Court if against my present argument special leave were granted. That is the force of the question. What is the significance of the agreed modus operandi of “extremely strong” being tagged as the verbal label on two of the three matches?

That is the substantive issue, and with great respect, not only Justice Kiefel’s question but also, with respect, a number of questions that Justice Hayne asked my learned friend, are questions I am going to try to answer, almost certainly in more than one sentence, and they do amount, with respect, to this. Given what did get before the jury, how it was presented, of course set in the framework of openings and closings and directions, what were they to make of what was ultimately not a numerically presented, but verbally described statistical observation because that it was statistical was very plain to the jury. It was not a matter of looking through eyepieces in a microscope and seeing things were similar. It was statistically expressed.

May I however go back to the question which, in our submission, is important. For the reasons I have been putting the way in which this defence was, with respect, appropriately presented – certainly judged at the level where the defence is entitled to keep and must preserve a certain number of secrets - in our submission, that makes this case very much an inappropriate vehicle to determine the very important question of how one presents – one being the prosecutor, the defence and the judge – and how one considers – one being a juror and an appellate judge – the effect of evidence in cases that can be described as the following category.

We accept that this case fits that category. That is against my special leave argument. The category is a case where it is necessary for conviction that there be acceptance that the DNA evidence identifies the accused as a person whose body was the source, in the jargon the accused was thus the donor of body tissue the DNA from which has been tested, recovered from an incriminating source. Now, “an incriminating source” is a general description. Your Honours will have seen the cases have subcategories such as “moveable items”. That is not relevant for present purposes, we submit. It is that the source is incriminating.

In this case, as we put in writing, we surely have a paradigm example of an incriminating source, bearing in mind the unchallenged narrative of the events on the evening in question because semen on the trousers fits the version which the jury was asked on both sides to accept as true as having happened. I stress, this was a case where the issues were, again entirely appropriately, narrowed so that there was no challenge to the victim, as she could be correctly called without any assumption involved, of an offence which had undoubtedly occurred. The question was whether the accused was the person or, framed more accurately and accusatorially, had the Crown discharged its onus of proof to the requisite standard that it was the accused who committed the offence charged?

Now, a category of case where the DNA match identifying the accused as the donor of the material found in the incriminating location is again, we accept, a very important category of case for the criminal law to examine, but in this case, for the reasons I have already touched on and those which I am going to add to the list, this Court will be hypothesising, in our submission, and will not be presented with a case throwing up appropriate tests by which the existence and content of any rule or principle could be usefully adumbrated.

Can I add to the list of factors the following, and they may be summarised by the Chief Justice’s closing comment to my learned friend about one of the matters in question, namely, is this not a case where everything should be treated as having been done according to Hoyle, and the short answer is yes. If as a learned author has alliteratively suggested there are contamination, kinship and coincidence to be concerned about with DNA evidence, and we respectfully accept that is a very neat way of putting it, the first two were simply not in question in this case, that is, though the material that has been drawn to attention on behalf of the applicant from both judicial and extra-judicial sources in the material cited, throws up contamination as what might be called a major concern with DNA evidence.

It was not a concern that played any part in this case even when one goes to the voir dire material. Now, I do not mean by that that it was not examined. This is not a criticism by me which would be unfair of anything the defence did or did not do. The defence did, we know from - that is which is manifest in the voir dire record, we do not know what is done privately, but manifest in the voir dire record, and to a degree replicated at trial, were inquiries concerning contamination including the method by which body tissue might be found to match something in an incriminating location where it would be simply wrong, and of course the cause of terrible injustice to treat that as tantamount to proof of guilt.

Transference, not in the psychoanalytic sense, but transference in simply the sense that, as your Honours will have seen from the transcript, was obviously the subject of some playacting in the courtroom where people are touching each other and asking witnesses does this mean that my learned friend’s DNA is now on me, et cetera, et cetera, transference was the subject of consideration both at the voir dire level and, to a very small degree, at trial. However, it played no part in what might be called the challenge to the DNA experts, either the technical expert, Ms Pearson, or the statistical analyst and presenter, Mr Walsh. So that dealt with contamination.

Before moving away from that topic, may I note that the reference to the US Supreme Court in our learned friend’s written submission comprises a quotation from Mr Justice Alito’s citation in a quotation in turn from a learned article by a Mr or Dr Murphy which is all to do with, in effect, contamination possibilities and transference, and there is, with respect, particularly given the existence of section 165 of the Evidence Act, a deal to be said for, in a suitable case, with respect, this Court granting special leave to appeal to consider whether there is something other than the ad hoc or highly particular for each case that ought to be done in relation to transference and contamination possibilities in relation to DNA analogous to, historically, what was done with so-called verbal confessions, recollections by policemen without any record from the accused. That is definitely not this case, and this case could not possibly be seen as a vehicle for that purpose.

FRENCH CJ: I think we know what this case is not about. It might help us to get onto what it is about.

MR WALKER: Kinship we can put to one side, because that is what I might call meaningful coincidence, that is, based upon actual genetic link. We can put to that to one side altogether, although, of course, the evil identical twin remains a theoretical and logical possibility not just for DNA, but also for visual recognition cases as well. So we were left with coincidence.

Now, coincidence arises from something which, if I may say so with respect, seems almost more to have been assumed than explained to the jury in the evidence at trial. I hope I am not pushing at the limits of what is in the trial record when I put it this way. We, that is humans, are called humans because we belong to the same species, but as individuals we differ and at the genetic level those two attributes are reflected by what the experts talked about to the jury, namely that you will expect alleles to be the same in many individuals at various locations or loci, as they are called in the string of DNA genome.

However, as one multiplies the standardised locations, loci, selected as the jury was told because they are apt to show variation between individuals within the same species, as one multiplies the numbers by geometric progression, as was explained to the jury, not difficult or complex theory, then the odds of two individuals, that is, two different people for criminal purposes, having exactly the same, that is, identical pairs of alleles, a match, increases as you increase the number of those loci. Not a difficult concept and explained by both experts to the jury.

FRENCH CJ: What you are multiplying are frequencies and what you get is a product frequency.

MR WALKER: Yes. You get to very, very large numbers really rather soon. Now, as Justice Hayne has, with great respect, asked at the heart of the matter as we would wish to present it in the Court, that does raise the question, well, what was the jury being told about and, in particular, when one looks at the trial transcript, bearing in mind that the reports, the written reports, were not before the jury, when one looks at the trial transcript, were they really told usefully in a manner which for appellate purposes will translate into concern about the safety of the verdict about what this verbal tag “extremely strong” actually described?

I am going to have a go at going over material, much of which you have already seen but with a view to presenting it in an order as it unfolded before the jury, to see whether I can persuade your Honours that in fact they were told, particularly by reference to Mr Walsh’s notion of something being common or rare, they were being told about the chances – I have picked a neutral term deliberately – the chances of somebody other than Mr Forbes having been the source of the body tissue, the DNA of which identically matched the DNA taken from Mr Forbes for investigative purposes.

So it was only the third of the three inherent sources of unreliability in treating DNA as a fallacious indicator of guilt, straight to guilt, it is only the third of those that this case really raises, the so-called coincidence point, that is, the observed biological phenomenon that many of us have, observably the same alleles at observably the same locations. It is just that not many of us have the same at nine – the reference to 10 is always to the one that shows sex, which, of course, is important in criminal identification, particularly in a case of this kind – but at the nine in question, the observable biological phenomena were the subject of voir dire evidence, consideration by the defence and their acquiescence, as my friend accurately puts it, in the way in which this evidence was then presented to the jury. That is why this is an inappropriate vehicle because, the excellent reason, the defence chose to go for the verbal tag “extremely strong” to describe the identification of Mr Forbes as the donor of the tissue on the trousers. That is what “extremely strong” referred to.

If we are right that that is what the jury were told – and I have to make that good from going to the transcript – then what one was left with in this case is the conceded admissibility of all the DNA material including its statistical interpretation and testing. We had what would, in the absence of an agreement or acquiescence, be very startling-looking evidence, namely a witness saying that something is extremely strong as evidence that somebody was the donor of body tissue found in an incriminating place, but that was being done by sensible choice on the part of the defence.

We had a defence case which, highly self-conscious as it was of the possibility of contamination in relation to DNA, did not run that as a defence line. That is why it does not appear in the appellate argument either below or here. Thus, two of the three important reasons for a court or a legislature or a law reform body to examine the status or nature of DNA evidence are missing from this case.

In relation to the coincidence material, which was therefore the only unreliability issue left, the significance that we attach for the purposes of resisting special leave to appeal to the highly particular way in which this case was chosen to be run below is simply that it is very difficult to see how a jury ought not to be able to use an agreed description, “extremely strong”. They were certainly not being told by the defence that it was meaningless. The prosecution obviously put a case that it simply meant what it said. The judge was not asked to, nor did he volunteer – that is unbidden – consider the question of a special direction in relation to those verbal descriptions.

Your Honours have seen some extracts from the summing-up in the submissions but the summing-up as a whole is certainly not a summing-up to which a defence would have reacted allergically, to put it mildly. It was a summing-up which repeatedly drew attention to the possibilities of the scientific evidence leading astray. There was no application for redirection.

HAYNE J: Can I just understand where we have got to, Mr Walker. One, coincidence is the only issue on the table?

MR WALKER: Yes.

HAYNE J: Two, you say “extremely strong” was a description in which the defence acquiesced, is that right?

MR WALKER: Yes.

HAYNE J: Acquiesced in preference to attribution of some numerical value?

MR WALKER: Yes.

HAYNE J: What was the jury going to make of it?

MR WALKER: Of those words, “extremely strong”.

HAYNE J: Given that there are those who at this stage of the season would be prepared to make an assessment of who will participate in the AFL grand final couched in terms of there is an extremely strong probability that it will be played out between team A and team B.

MR WALKER: Yes. This is not a case about Bayes’ theorem or any other probability approach being applied to anything other than those matters which can be calculated from a database, in this case, of 620 observations at 10 locations and Mr Forbes and the crime scene sample. Nothing else is being measured probabilistically. I need to add to the list of factors special to this case which render it inappropriate for special leave to appeal the following. Though there was both at voir dire and at trial questions asked about the size and nature of the ACT databank, so called, there was no contest either on the basis of admissibility nor direction sought in relation to reliability nor, in the ultimate, any speech against the scientific cogency of both the constituent samples and the number, for forensic purposes, of that databank. Questions were asked which were very decisively answered by the witnesses concerning what, in their opinion, was the appropriateness of that databank. Indeed, there is evidence that 200 was enough. It had been 415, it was now 620.

FRENCH CJ: I think the first samples, the 6A and 6B, were tested off the lower database at 415, were they not?

MR WALKER: That is right. There is about a year between the testing.

FRENCH CJ: Yes.

MR WALKER: Could I, against that background then, in an attempt to answer the outstanding questions concerning what was the jury to make of all this, highlight the following parts of the record. I stress, I have jumped straight to the trial. I am not at this stage going to the voir dire material which is not relevant to this point. In the appeal book, page 75, Ms Pearson is being asked about what are the brassiere samples, the narrative of the offence which was committed in pleading the perpetrator handling the brassiere. One sees at page 75, about line 23, a reference to “Sample 6A”, and I am just identifying that for you as being “the outer surface of the . . . cups”. At the foot of page 77, about line 38 – these all being done by reference to slides which your Honours have, but which will not make this easier to understand – one sees the answer:

In respect of Sample 6A the components that we have detected in the mixed DNA profile –

That refers to the fact that there are indicators of more than one person having contributed the tissue in question –

the components that we detected in the reference sample relating to Forbes are also present in the crime scene sample, and the components that we detected in relation to Caur [the victim] are also present in the crime scene sample.

Then page 70, line 37:

Now, just dealing with Sample 6A, it is fair to say that, as we’ve indicated previously, then within the Forensics Department you do some form of statistical analysis on what you’ve located?---Yes, statistical calculations may be performed.

Top of page 80:

And you have put that into your report.

Your Honours will recall that reports not given to the jury, “You have your report there. Turn to page 7”:

And in respect of 6A, this sample, you have come to a conclusion about your opinion as to the evidence that you have ascertained or concluded from this sample, is that right?---Yes, I have.

And that is that it provides strong evidence –

and that is where the sentence stops –

Now, I need you to explain what you mean by providing strong evidence. Strong evidence of what?---The verbal scale that we attribute – so strong evidence is one that is used within he laboratory and based on the statistical calculations that we do, that’s how we arrive at that number.

Then there is a reference to the verbal scale “extremely strong” and one sees the scale as “strong, very strong, extremely strong”. Line 32, “And this one is strong”, what does it mean numerically, “No”, and it directs there to a conclusion in her report:

these findings, when considered in isolation from other information, provide extremely strong evidence to support the contention that the donor of the DNA reference sample relating to Benjamin James Forbes contributed to the partial mix DNA profile obtained from item – from FC050415-6a.

Now, we then move to 6b, page 81, line 35, sample 6b, where does it come from, “the inner surface”. Then that gets “a partial mixed DNA profile” bottom of that page. Page 83, line 20:

In my opinion these findings, when considered in isolation from other information, provide extremely strong evidence to support the contention that the donor of the DNA reference sample relating to Benjamin James Forbes contributed to the partial mixed DNA profile obtained from item FC050415-6b . . .

So in respect of the brassiere your opinion is, concerning both the outer and inner components of the bra, that what you’ve obtained is strong evidence, is that correct?---Strong evidence for the outside and extremely strong evidence for the inside.

They have been told at that point that the combination of the comparison by the techniques in question physically of the material, to which results from the databank have been applied statistical calculations, about which they are to hear more from Mr Walsh, shows in relation to the physical source of material on the brassiere being Mr Forbes, respectively “strong” and “extremely strong” evidence.

HAYNE J: What she meant by that is to be understood in the light of her answers at page 81, lines 16 to 22.

MR WALKER: Yes. The jury has all of this.

HAYNE J: Her evidence being that we do statistical calculations to come to an opinion but we cannot say that his DNA is definitely there.

MR WALKER: No. All we can say is the evidence that it is his DNA is strong or extremely strong. That is what it means to say and that is what the jury must have understood it meant to say, that the donor of the reference sample relating to Benjamin James Forbes, that is Mr Forbes - - -

HAYNE J: It provides strong evidence to support that contention, not that it is definitely his. That is what her answers amount to at page 81, do they not?

MR WALKER: Yes. I just wanted to add, in other words, definitely, and elsewhere you will find in Mr Walsh’s evidence the word “categorically” as well. It seems to be used in the same sense. It seems to be used, and the jury must have understood, as meaning “beyond any possibility of doubt”.

Now, that does not mean beyond reasonable doubt for reasons which, in our submission, are clear when one considers the way in which juries routinely deal with all sorts of evidence which is inherently susceptible of doubt such as eyewitness identification. What the statistics, however, do and what defence counsel knew from the voir dire, indeed the figure was there in the report that the witness was being asked about in front of the jury though the jury did not know it, is that the probability ratio of it being someone other than Mr Forbes for the one we are about to come to was one in 20 billion. Obviously, one would prefer as counsel with instructions to plead not guilty to have “extremely strong” than “one in 20 billion”.

My contention in this court is that though one may clutch at straws in a shipwreck that if the jury were to accept beyond reasonable doubt the propriety, by which I mean contamination, I am not talking about corruption, the propriety of the sampling from the crime scene and the taking of reference samples from the accused, the application of the techniques involved, the observations of identical match and then the propriety of the database, both statistically and demographically, that is genetically, and the application of the appropriate mathematical calculations which were citations for which we are provided, but obviously not pursued by the defence and for good reason, then if the jury was satisfied of all of that, as they would have been the way this case’s issues had been appropriately focused, then the only question is, why cannot extremely strong evidence that Mr Forbes is the source of the DNA on the trousers, why cannot that be used in precisely the same way as a jury being favourably impressed by the evident recall of an eyewitness.

In our submission, we can go this much further. No jury can ever apply any technique by which they can test extraneous to the assertions of the eyewitness’ testimony, whether that eyewitness is correct, that is they were not there. In our submission, commonsense would be thrown out the window and the administration of criminal justice would be impeded to a degree impossible to contemplate were eyewitness evidence not merely to be the subject of section 165 warnings but also and despite the giving of such warnings always to be regarded as incapable of supporting a conviction in cases where it is described, to use my learned friend’s repeated expression, as the only evidence.

HEYDON J: There are people who are not contemptible people who think that.

MR WALKER: With great respect, yes, and yes. However, in our submission, the possibility of such error has, in our system, been recognised eventually, that is by historical evolution by permitting cross-examination on behalf of the accused, eventually permitting the accused to give evidence, then the introduction and regulation of alibi evidence, and then of course, warnings, both by common law and by statute, all of which draws short of saying that because of the inherent uncertainty, that is the impossibility of ever saying that something is definite or categorical in the sense those words have used in this record in relation to an eyewitness identification, that therefore when that is supposedly the only evidence to implicate a person they should not be put on trial because it would be waste of a jury’s time because if a jury were to accept that evidence it would be an unsafe conviction. In our submission, that flies in the face of the way in which organised society and crime in organised society has to be dealt with.

BELL J: What do we do with the circumstance that here the jury were told that “extremely strong” as a standard expression used by Ms Pearson’s laboratory referred to a random chance match of one in a million. Given that was the information that was available to them, if I have put it correctly, absent any other evidence tending to link the accused as the source of the sample, how on the material before the jury were they able to arrive at a conclusion beyond reasonable doubt.

MR WALKER: First of all, if I may say so, that is for the respondent - if special leave be granted that is the question. The short answer to it is that there cannot be anything better than “extremely strong” and that, though in hindsight, I suppose any set of conventional verbal tags might be the subject of wished-for modification or improvement that is irrelevant. It is difficult, without getting into the kind of complications that one should not get into before a jury, to think of an adverb and an adjective better adapted to invite, in light of all the evidence in the case, a finding beyond reasonable doubt.

The word “extremely”, whether one employs visual metaphors such as a continuum, or any other approach, leaves very little room, as it were, above that which is pseudo measured by this verbal tag. I say “pseudo measured” because we know that this has been adopted in order to prevent what some commentators have regarded as the undesirable presentation of numbers to juries. I will come back to that question in a moment.

In answer to Justice Bell, if it is not sensible to posit that there is anything of substance or material left after you have pushed the scale to “extremely” – “extreme” means at an end, at an outer limit –and this may have been a criticism of them had this been the subject of argument – these are words which, in one sense, have the butcher’s big thumb right in the scales at the point where the evidence is admitted. I stress, there are reasons for that because if we go back to the question of numerical presentation, in our respectful submission, Mr Justice Callaway, in Noll [1999] VSCA 164; (1999) 3 VR 704 at 708 to 709, paragraph 19, describes that which is critical in a case like ours and that which was lacking in Green and appeared also to be lacking in Pantoja, though I will come back to the Pantoja cases.

It has to be the statistical step because it is elementary that if it be necessary that the DNA evidence identify the accused as the source of the sample in the incriminating location, then simply to say the DNA evidence fails to exclude him as that source cannot possibly satisfy beyond reasonable doubt. It would be absurd to proceed thus. But not being excluded, however, then produces further questions, how many people are in that class of “not excluded”? Well, say the biologists and statisticians, our studies to date, all of which are available on prosecution disclosure and voir dire testing, as in this case, suggest that from a database more than large enough to suffice, genetically appropriate, with mathematical techniques that have been through the peer-reviewed mill and are the ones we think are state of art, one in 20 billion.

Obviously, as Mr Justice Callaway points out, it is the statistical step in the reasoning that gives DNA evidence its probative value. Then quoting the blood test reference by Mr Justice Hunt in Pantoja (No 1):

Databases have been built up which are said to demonstrate the probability that another person would share the particular blood type or would match the DNA of the suspect at a particular genetic marker. The greater the number of such matches the greater the probability -

a point on which my learned friend and I intuitively agree, and the evidence is to that effect –

so that the statistics are calculated by multiplying the probabilities for each match.

This leads, in the English decisions to which you have been directed, to observations about the so-called “Prosecutor’s Fallacy”, and a passage from Doheny and Adams [1996] EWCA Crim 728; [1997] 1 Cr App R 369 at 378 to 379, starting letter G on 378 and going to letter B on 379, is apposite. It is, as Mr Justice Callaway points out, the statistical step that adds requisite probativeness. What his Lordship there - Lord Justice Phillips says, is:

Given what was then the uncontroverted expert evidence that the random occurrence ratio –

which is another name for the likelihood ratio, as used in that case - - -

HAYNE J: No, it is not.

MR WALKER: Your Honour, they used that - - -

HAYNE J: Do they?

MR WALKER: The random occurrence ratio seems to be describing the compared likelihood of another person randomly, that is coincidentally to use the expression, as opposed to the accused.

HAYNE J: What my expostulation was provoked by was the ALRC Report. The ALRC looked at questions of the use of DNA in criminal proceedings in report No 96 entitled “Essentially Yours”, and at paragraph 44.21 and following the authors distinguished between match probability and likelihood ratios.

MR WALKER: That is different from other authors. May I consider that, your Honour. I had in mind what one finds in Edwards at page 96, footnote 9, but if I may deal with it for the purposes of argument as following: whether they be one or two different calculations, they are numerically reached and expressed consideration of the relative chances of the tissue coming from the accused or from another person, member of the same species. We are all individuals, but members of the same species. The only people with the same DNA will be our identical twin, and if there is the coincidence yet to be found in the species. In the passage at 378, and I am sorry for having alarmed Justice Hayne - - -

HAYNE J: Further.

MR WALKER: Given what was then the uncontroverted expert evidence that what his Lordship calls:

the random occurrence ratio of the DNA profile shared by the appellant and the crime stain was 1 in 40 million, we have no doubt that the jury would have reached the same verdict if directed in this way.

His Lordship is not saying and that would be a terrible thing, or justice would have been disserved, or the truth would have been obfuscated in that fashion, to the contrary. Then his Lordship goes on in a way which, in our submission, has not been picked up or given any weight by the plethora of learned commentary on prosecutor’s fallacy as follows, and I quote:

The more remote the random occurrence ratio, the less significant will be the adoption of the “Prosecutor’s Fallacy”, until the point is reached where that fallacy does not significantly misrepresent the import of the DNA evidence.

Now, may I immediately utter this very important caveat? That is not a statement which could possibly be safe or true if one still has in play possibilities of contamination and it needs of course to have eliminated kinship. One perhaps should add to the three a fourth which could also be alliterated, namely corruption, which may lead to contamination, but ought not to fall under that rubric.

So as a statement it may be more rhetorical than logical in its force but, with respect, it is, though, now more than a decade old, it is a statement which accords with the approach that we submit is in the proper common law tradition of considering evidence and allowing a jury to consider evidence for the weight that it is shown to have from the material admissibly before the jury concerning the evidence in question. We do not have, I think, evidence before juries testing the average visual acuity of, say, people between the age of 30 and 40 in order to mount a tax on eyewitnesses. In a sense, there are things which could be, perhaps should be, susceptible to acute scientific investigation which are nonetheless regarded as, within the province, probably exclusively of the jury to consider from their knowledge of the world and themselves and others.

In our submission, this DNA evidence, far from being weakened by being accompanied by or constituted in part by statistical presentation, in fact, derives its strength from that because based upon biological observations to date – and as everyone keeps saying, maybe one day we will be able to do everybody – but based on biological observations to date, the chances of these ten sites, the nine non-sex sites, being identically matched, both in the accused and in the crime sample and in somebody else and the crime sample, are so large that then common sense says - - -

FRENCH CJ: So small I think you mean.

MR WALKER: The chances against are so large, yes.

FRENCH CJ: The chances against, yes.

MR WALKER: I am so sorry, and at that point, the jury then has beyond reasonable doubt a number of things – and in this case they would certainly have the performance of the tests, et cetera, beyond reasonable doubt – they then have beyond reasonable doubt extremely strong evidence that Mr Forbes supplied the DNA found in the trousers.

FRENCH CJ: Incidentally, when you use the word “chance” or “chances”, do you mean anything different from “probability”?

MR WALKER: No. Some people, your Honour, avoid the word “probability” simply because of its confusion in the law between possibility and probability.

FRENCH CJ: Yes, as something more than 50 per cent.

MR WALKER: The word “coincidence” is another word that is used to reflect the same possibility at work.

FRENCH CJ: I drew Mr Hasting’s attention earlier to what Mr Walsh said at 167 of the appeal book and it did seem to be a statement about the limitations of the DNA evidence. If the jury were to accept that proposition, I think on the basis of what you said earlier, they could not possibly convict, could they?

MR WALKER: If it were taken – to use a phase used elsewhere in the evidence – in isolation, that is probably right, with respect, because both “definitive” or “definite” and “categorical” – and I am now in very dangerous territory indeed – would appear to be pretty good words by which, if for the defence you persuaded a jury that it did not exist, then you would have not beyond reasonable doubt. However, none of those expressions come without context and the context is of people who painstakingly point out that they have not tested everybody and nobody is going to test everybody and they have not tested all locations and nobody could practically test all locations and so the statistical examination is carried out on the basis of what we do have, what can you say about the probability of it being someone else.

We can never say categorically or definitely, because it is the problem about the black swan before people came to the Antipodes; the fact that you have never seen one does not mean it does not exist, and for those reasons these scientists use words in a way that clearly presented a real risk to the prosecution case that if misunderstood they would mean, and by definition, that the Crown was in its own evidence saying we cannot prove the relevant fact, that is, his body tissue is in the incriminating location, we cannot prove that beyond reasonable doubt. But, as your Honours have seen from the explanation given for why they used the mantra in isolation from other evidence and why the verbal scale is resorted to, these scientists obviously understand from something that has either happened to them or their colleagues forensically, that they are to express their opinions only on that which logically the science permits them to say.

HAYNE J: Does that not then provoke this question, Mr Walker? In light of the answers given at 81, lines 16 to 23 by Ms Pearson, and 167, lines 7 to 12 by Mr Walsh, how were the jury to give content to the qualitative descriptions given by the witnesses, “strong” and “extremely strong”?

MR WALKER: My answer is necessarily speculative, which is another way of saying there is nothing better than or beyond the conventional acquiesced description “extremely strong”, about which I am sure I have said enough, I do not have anything to add. “Extremely” means “as far as you can go” and that sits, and if it sits uneasily so be it, it sits alongside explanation of the methods used and the statistical observations made that preceded that description “strong” or “extremely strong” where you find the protestation cannot say definitively, cannot say categorically.

Now, in fact, as explained to the jury, at least I hope I can persuade your Honours it was explained to the jury, these did sit together. Ultimately, what these scientists told the jury was every time you find a match - sorry, once you have these 10 sites, we will call them nine pairs of alleles to be considered, you may suppose that finding a match from another person at those nine loci to get the same identity will at one locus have certain odds and then by the multiplication that was several times explained to the jury, it will get increasingly unlikely as you move to coincidence between two individuals at one locus, two loci, three loci, four, right through to nine.

They had that explained to them on the basis that the science did not permit us to know all the DNA of everybody, and the example was used, in the courtroom, or in the Australian Capital Territory or in the world. That is why, that is that lack of knowledge is why the jury were told and must have been impressed by the scrupulousness with which these witnesses said “Well, that means I can’t be definitive. All I can say is the chances of there being another person with these matches in these known loci have been calculated from the biological observations that we do have by way of an appropriate sized sample as follows”. It is for those reasons that there will never be the capacity to say definitive or categorical by the locution of these scientists because they will say, “We have not found any natural law that says it cannot be so”.

It is for those reasons that the jury was to make of this evidence that there had been tests done, biological and statistical, which they the jury were invited by the parties and the bench to treat as “extremely strong evidence” that Mr Forbes was the source of the biological material on the trousers. I know I have already perpetrated repetition but I think that is my answer to Justice Hayne’s question, what were they to make of it? They were told that notwithstanding or perhaps because of the method that meant no definitive, no categorical elimination of some other person, all they could do was to estimate the probability of that. I have estimated the probability of that. What does that mean concerning Mr Forbes, the accused, that being the only question before the jury? Has the Crown proved beyond reasonable doubt it was Mr Forbes who left that material on the trousers or, I should say, is the source of the material on the trousers? That is the proper question. In our submission, “extremely strong” always sufficed and does, as a matter of ordinary language, to permit beyond reasonable doubt.

HAYNE J: Does that answer depend upon how we are to understand or, more accurately, how the jury was to have understood the evidence given by Mr Walsh from line 28 on page 133 through to at least line 5 on page 134 and probably the context could be drawn rather wider than that, but - - -

MR WALKER: The short answer is, yes, but there is an immediate “but” because that is not an answer which supplies all its own explanation. There is some difficulty in stringing together the material by which I can, for example, crisply describe to your Honours from the record the prosecution hypothesis, see line 37, and the defence hypothesis.

HAYNE J: Could I say this to you, Mr Walker, if it would assist the presentation of your case to put it on paper, that is to put that chain of references on paper, I would find that of assistance.

MR WALKER: May I take that as permission to do so. Your Honours, in that case I will not necessarily go to every, as it were, footnoted item in my address presentation of it, but may I first of all backtrack just a bit. It does require putting the witness Pearson together with the witness Walsh. They were, after a little kerfuffle, they were rather roughly welded together at the very middle. They do join together, the jury saw that very graphically, her evidence being explained by reference to the convention for which the statistics provided the backing.

Your Honours, in relation to the one we have repeatedly singled out, though we do not mean it is the only one that matters, the 2A@ sample, at page 86 you find an explanation the jury obtained of that nomenclature. At page 88 again you find the straightforward proposition that the jury was surely understanding the components - this is line 31 - the components that were detected in the reference sample relating to Forbes.

Now, that is a longwinded way of saying what she, the technician, was told was the material taken by buccal scraped from Mr Forbes during investigation were the same as those detected in the - sorry, in the crime scene sample that was obtained, so they kept being told that. At the top of page 89 the same thing is true, they are the same. This is important language in terms of that fact.

FRENCH CJ: The term “DNA profile” is used. Should we assume that is understood to refer to the nine locations?

MR WALKER: Yes. You find the locations being referred to in previous questions, for example, and they have slides which make this clear.

FRENCH CJ: I see. Yes, they use the heading profile.

MR WALKER: They have the slides, yes. Then conclusions. So they have the slides but they have not got the report. They know that there is a report. Page 89, line 32 –

Would you go to your conclusions that are contained in your report - - -?---Yes.

- - - in respect of 2A@?---In my opinion, these findings, when considered in isolation from other information, provide extremely strong evidence to support the contention that the donor of the DNA reference sample relating to Benjamin James Forbes –

The jury by then, well and truly knew that is Mr Forbes –

is the source of the DNA profile obtained from FC050415-2A@ -

So the accused sitting in the courtroom there being told there is extremely strong evidence that it is his body tissue that contains the DNA sample from the trousers. Then that is tied together with the 6B and 6A brassiere samples. That is what I wanted to show you in relation to Ms Pearson’s evidence, the jury being left with this “strong, extremely strong, extremely strong”.

HAYNE J: But there are two separate points, are there not, Mr Walker? First, counsel for the defendant went to the jury – see respondent’s material page 191, lines 20 to 21 – on the footing that the two profiles were the same and the debate in the case was, what followed from that? That is the only debate?

MR WALKER: Yes, and seems to be only coincidence. Contamination seems to be gone.

HAYNE J: No. Had the Crown proved beyond reasonable doubt that the jury could conclude - - -

MR WALKER: That contamination was - - -

HAYNE J: No, could conclude from the fact that the samples had the same profile that it was the accused who had left the crime scene sample?

FRENCH CJ: He did not have to prove a coincidence.

MR WALKER: Absolutely. There is no proof that can contribute towards the overall finding of guilt constituted by showing that you have demonstrated that the accused and some other people have the same DNA profile as that contained in the crime scene sample; of course not. That is the very force of the evidence by acquiesced convention verbal tag “extremely strong”, because what it was extremely strong evidence of was not that he was one of a group, but that the chances that it was somebody else, if you like, in that tiny group were such that it was “extremely strong” evidence it was him. Not was him, the offender, that would be the prosecutor’s fallacy in a way that need never be strayed into, but it was him who was the source of the DNA found in the sample.

Now, in many cases, but not this one, the real issue may be whether that is of any relevance, bearing in mind doubts that could not be excluded by the Crown, that the sample had preserved its necessary integrity by handling and continuity, et cetera, so as to permit beyond reasonable doubt satisfaction of the proposition that the accused’s DNA got there in circumstances relevant to incrimination as opposed to contamination, for example.

HAYNE J: Ms Pearson gave her evidence by reference to a PowerPoint presentation, did she not?

MR WALKER: Yes.

HAYNE J: Did the jury have the PowerPoint slides?

MR WALKER: Yes.

FRENCH CJ: I think they were each given a copy of it prior to her presentation, were they not?

MR WALKER: Yes, a pack. Your Honours, could I go to page 100 in Ms Pearson’s evidence at about line 7. This goes directly to this definitive, not definitive point:

I asked you a question about DNA, was it Mr Forbes’ DNA, and you answered in a particular way concerning his profile. Is there a reason why you were being so careful in answering that question?---Yes, the examination that we do is to – we do the DNA analysis to try and detect a DNA profile. We then compare that to a reference sample. We then do statistical calculations and – in order to provide an opinion as to the significance, perhaps, of those findings. But because we haven’t tested every single person on the planet, we can’t say that it is definitely that person’s profile -

So the jury had that in colloquial, easy to understand terms. That is what it means to say we cannot say it is definitely his because the black swan may be out there. “So we always talk about the profiles,” she said, “and do the statistical calculations”. Then there is the question about what I will call the statistical power of 10, meaning 9, relevantly, once you have attended to sex.

At the foot of page 100, about line 45, returning to the question of 2A@:

Can you match up each of the 10 locations from his reference DNA profile to 2A@?---Yes. The components detected in the reference sample relating to Mr Forbes are identical to those in the reference - in the crime scene sample labelled 2A@.

To return to Justice Hayne’s question to me, well, if it is identical, that means the question remaining is, but does that mean he was its donor and the answer to that has been given already. We cannot say that definitively or categorically and that is going to be repeated by Mr Walsh, but we can say that the evidence that it is him, it is he who was the source is extremely strong and defence counsel chose that route because otherwise the jury would have had the mind-boggling figure of one to 20 billion.

At the top of page 101 there is then repetition - I will not read them - down to line 20 of the similar finding of all the components detected in Mr Forbes’ sample being present in, et cetera, et cetera. As to contamination, for example, I will not dwell on this because it is not an issue, but you will find some questions starting at the foot of page 103 in cross-examination about line 41 and they continue over, I think, one page and a bit to the top of page 105. There is no challenge and the witness answers in a way that the jury could plainly have accepted eliminated that possibility.

The concern about “not definitely” or “not categorically” is raised again by the evidence at 106, line 25, that is returning to the evidence that the jury has just had about what it means is because we do not have everyone on the planet:

you do not say that those products at 6A and 2A@ are Mr Forbes’ DNA, do you?---What we do is we compare the DNA profiles and then generate a statistical calculation that – from which we determine an opinion.

That is the opinion that produces the verbal tag, and that is again what the witness says at page 107 about this question, if I may put it this way, faux naïf from counsel:

why do you need the statistics as well, surely they are either the same or they’re different? –

That really was challenging the question about - what is this about possibility of coincidence.

Well because you have to sort of look across the whole ten –

that means the locations –

so we could say for example at one location out of the ten, that is the same between two - two DNA profiles but then if we worked out the statistical calculations, they could be relatively low, and so then when we provided a verbal scale for that . . . this provides limited evidence . . . only a small amount of information, but – so what we do is we look at the entire 10 sites across the DNA profiles, calculate a statistical calculation, and then use the verbal wording scale to provide an opinion.

The increasing certainty – my expression – is being conveyed to the jury by having the 10, or nine, loci, and doing these statistics to test for coincidence, that is coincidence that prevents this being inculpatory evidence.

FRENCH CJ: She is telling the jury at this point, is she not, that notwithstanding the statement in the report that “it is my opinion that it is extremely strong evidence”, that this is, in effect, a verbal tag onto a particular number range without saying what the numbers are?

MR WALKER: Yes, and the jury is about to be told more than that. But yes, she is. This is not her opinion in what I might call-annexure

FRENCH CJ: It is not an independent judgment she makes about the numbers.

MR WALKER: - - - in a personal sense. She could call it red as opposed to blue. The importance of it is, of course - - -

FRENCH CJ: Or she might have said beyond reasonable doubt.

MR WALKER: There may be some Crowns who would like her to have said that. That is plainly the difficulty because there is a Scylla and Charybdis here, your Honours. We, that is on the Crown side, have been told long enough you should not dazzle juries with numbers. One proper response to that is, well, you should not dazzle juries at all, but why not tell them the numbers if the numbers exist; Mr Justice Callaway’s point, with respect, discussed in New South Wales in the authorities as you have seen. Maybe it is the numbers that enable a distinction between this case and Green because they did not have the numbers in Green and the Crown said all we can do with the DNA is to say it does not exclude.

But this case is different. We can do more than say not exclude. We can say it is extremely strong evidence that it was he who is the bodily source of the DNA found in this incriminating location. We do not go to the prosecutor’s fallacy because logically and perhaps in many cases there will be other possibilities to consider, such as kinship, but also, obviously, innocent explanations as to how the material could have got into that incriminating location. Contamination is the most obvious one.

Another obvious one is innocence, that is, non-criminal, antecedent dealing with the victim on some other occasion. None of those were raised as possibilities that required to be chased to burrows in this case. The issue rather was just the coincidence one, the one to do with the genetic database.

FRENCH CJ: Really in terms of the circumstantial evidence categorisation whether there was a reasonable hypothesis open, having regard to this evidence, consistent with innocence.

MR WALKER: That is right.

FRENCH CJ: Well, we might adjourn there till 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the list of references for which Justice Hayne inquired should be ready later today or tomorrow.

HAYNE J: Thank you.

MR WALKER: Because that will be coming and because there is repetition between some of the items, may I select just a few else to note in address. Could I take your Honours, please, to application book 114. My friend showed you part of this. Between lines 24 and 39 you have an explanation in cross-examination where the defence elicits this explanation to the jury of why one is doing the statistics. So the answer, referring to the possibility of, that is, hypotheses – this is line 27:

so the first one may be that the person contributed to the mixed DNA profile, and the second hypothesis might be that another person – or two other people chosen at random . . . may have contributed . . .

And so the answer will be you’d think it would be really unlikely –

So you see degrees of likelihood being introduced by the questioner –

that there would be somebody else who would have that same profile in this courtroom?---Well, that’s why you do the statistical calculations.

And it’s only the statistical calculations that enable you to say that?---Yes, by looking at how often we observe those values within the ACT population then we’re able to give some meaning as to how often we have seen those values within the population.

On page 116 in re-examination, there is a return to that same topic at lines 29 to 45. Again one sees a reference to the opinion – the last word on that page. That would have been understood by the jury as a reference to the verbally expressed opinion rather than numerical. I should draw to your attention while I am in this vicinity page 123, the re-examination between 17 and 30, in particular the – I hope my junior forgives me – unfortunate expression at line 23:

you came to a conclusion about how good or bad the evidence was -

et cetera. Now, that, if I could pass over that in silence, I would. I need to draw it to attention. It is not the same discourse that the witnesses were putting to the jury concerning the likelihood of what is known as coincidence. Could I draw to your attention – I think your Honours are well aware of this - at page 131 between lines 14 to 26 there is recorded finally the outcome after some argument, the agreement announced by defence counsel as to how that verbal wording would be linked as between the witness Pearson and the witness Walsh. It is introduced through Mr Walsh starting on page 133 at about line 11 and over the page to page 134 at about line 19. In particular, I would – a passage your Honours have seen already. Towards the end of that passage 134, lines 16 and 17:

it can be used to provide an estimate of how often you might be expected to observe that particular DNA profile as we talk about in this circumstance.

He goes on in the next sentence perhaps to muddy those waters. At page 136, I do not need to dwell on it, there is a reference to the database.
On page 137, to which attention has already been drawn, might I single out in particular at about line 36 caution is being administered by the witness:

There’s nothing wrong with using that number to inform your opinion as to the strength of the evidence -

Your Honours will recall, of course, that the verbal description, the scale, is in terms of strength –

That’s really what the number is designed to do. To inform your opinion as to how likely it is that you would see another person with that particular profile.

The jury could only have understood that reference to another person as meaning a person other than the accused.

That’s the purpose of the number, however, it doesn’t provide an absolute number or exact number of what you will find.

If I could take your Honours then through to 142, the evidence is resuming I should say after a public holiday adjournment. Top of the page, reference to:

conservative things . . . Ms Pearson, who gave evidence before you, was very careful not to say that what she was saying was that Mr Forbes’ DNA was located at the crime scene site –

This picks up the not definite, not categorical point.

What she said is that she would talk about it being in her opinion providing strong evidence to support the contention?---Yes.

Or extremely strong evidence –

et cetera. In that passage then at page 142 about line 18 or so:

When you have a situation where a person on the basis of their profile cannot be excluded, because their profile corresponds with the profile observed in a crime sample, and then as I mentioned on Tuesday that’s when we need to talk in statistical terms about the strength of that particular association.

The jury would have understood that as meaning you go beyond that person cannot be excluded whereas a lot of other people, of course, can be. How many other people would be in that position and then the probability then of coming across another person, not the accused, is what is expressed numerically, translated to verbal terms and obviously preferred by defence counsel to be verbal than numerical. If I could then take your Honours through, say, to 157, a similar sort of expression at the foot of the page about 43:

We then use the information that we discussed briefly on Tuesday, which provides for us the frequency with which those particular alleles that have been observed appear in the population and we use our population database to give us that information . . . And for that particular site, we then have likelihood ratio or probability depending on how people prefer to report it for that particular site.

et cetera. There was some evidence that it was not purely statistical in relation to the matched tissues, if I can call them that, in relation to sourcing the DNA from the spermatozoa. You will see that at the foot of page 160, line 42 to the top of page 161, about line 13. At page 163, about line 15:

We need to apply some –

I think that should be the word “statistics” –

which is the tool by which scientists assign a significance or a strength to their findings.

This is in cross-examination, your Honours. Then about line 30:

One is to try and predict what the spread is of DNA in the population?---Yes, to provide an estimate of how common or rare our result is.

That is re-captured after the adjournment on the next page 164, line 35, and in relation to the database of its appropriateness, there is discussion on page 165. That then leads into the passage to which attention has been drawn earlier today at the top of page 167 where they cannot say things categorically.

Your Honours, the numbers that were eschewed in favour of a verbal description can be found in the document that I hope your Honours have been supplied with, that is part of what was on the voir dire – I stress not at the trial – exhibit E. There was another statement which was earlier, but the earlier statement was wholly subsumed into the later statement. The difference of dates is explained by the fact that there were later tests done, including particularly at 2A@.

The reference in the respondent’s materials bundle to the tender of exhibit E is found at page P59 of that bundle. In that bundle you will see the figure to which reference has been made in argument today on page 3 of 12 in the bottom cell of that table. That is the 2A@ sample from the trousers. You see “1 in 20 billion” with a range supplied by the calculation of the 95 per cent confidence interval between “1 in 13 billion” and “1 in 31 billion”. That it was which was in the hand of the witness but not tendered at trial – the references to the report that your Honours will have seen in the testimony.

In the voir dire explaining and vindicating the choice of defence counsel, one finds the following references, among others. At P62 of the bundle at about line 37 there is a reference to a series of equations that do the mathematical calculations to produce the likelihood ratio. At P65 in relation to 2A@ at line 40 there is a reference to:

Forbes, that’s the accused in this case, has not been excluded as a source of the DNA profile obtained. What does that mean?

I will not read the whole of the answer, but it continues down on to the next page to – on page P66 at line 10. The components observed in relation to the DNA profiles being identical are found on P67, lines 11 to 14; repeated again lines 34 to 37. At P81 there is a discussion, on the face of it entirely hypothetical, where you will find in the preceding passage his Honour raising “275 billion”. You will see some of that in voir dire exhibit E, and then the “say, 20 billion” at line 39 on that page. It is obviously because that is what the document says. Then the “Extremely strong evidence” – this is, I stress, all voir dire, page 82 of the bundle about line 42 she is asked about - in examination-in-chief on the voir dire she is asked about what that means in her report and the fact that it is conventional is revealed P83, lines 3 to 6.

The fact that it is tied to the statistics generated from it is shown in the passages 10 to 12, and that obviously provides part of the explanation, maybe it is the tip of the iceberg, part of the explanation for why there was the agreement to which I have drawn attention, hence, the opening of the cross-examination on the voir dire that you see on page 83, lines 40 to 41. The 20 billion figure comes up again at page 84, lines 5 to 11.

FRENCH CJ: Do you not take us, I take it, to references relating to the fact of the agreement?

MR WALKER: Yes, that was one of those I took your Honours to – the one I took you to is the agreement and that is at page 131 of the application book, lines 14 to 26.

FRENCH CJ: That was about, yes, the welding together, as you put it, of Mr Walsh and - - -

MR WALKER: Yes. The discord that was quelled arose because Mr Walsh was being asked questions about what Ms Pearson meant, to put it bluntly.

FRENCH CJ: Had done.

MR WALKER: Of course, we know from the voir dire that everyone knew what Ms Pearson was referring to by way of the scale, but the jury had not heard that. That is one subject of the agreement. The other subject of the agreement, of course, is the expression “strong and extremely strong”, “greater than a million to 1, strong being greater 10,000 to 1”, “no objection taken to that”. That is what defence counsel is recorded as agreeing and that is what I mean by the agreement.

HEYDON J: Just at a technical level, what is going on? Are we talking about an agreed fact under section 191, 192, or are we talking about the waiver of rules of evidence under section 190? I mean, perhaps there is another element. The witnesses gave viva voce evidence but constantly by being asked to look at a conclusion and what they told the court. Was that refreshing recollection? What is the technical justification for this?

MR WALKER: If it were intended this to be an agreed fact technically, it does not, with respect, announce itself on the transcript as such.

HEYDON J: It should be an agreement in writing signed by legal practitioners.

MR WALKER: Yes, but there is both formality and what I will call form, the way in which the syntax conveys a proposition, that needs to be addressed if it is an agreed fact. Of course, there is an element of agreement but it can be overstated; there is a danger of overstating it. I hope I am not overstating it when we say the agreement was that a witness would be permitted to, as it happens, continue a usage already employed by an earlier witness, namely, strong and extremely strong, would be permitted to provide the numerical threshold for the respective grades in those verbal descriptions in the sense that there would be no objection taken to it.

FRENCH CJ: There is not much of a concession involved in that, is there, because as I understood it, Ms Pearson did refer to these terms as a verbal scale attached to the numbers?

MR WALKER: Yes.

FRENCH CJ: All that is being accepted here is that he would use those same terms as a verbal scale. It is not a matter of exploring what she meant by them.

MR WALKER: No, quite.

FRENCH CJ: Or accepting what she meant by them, except in the sense that it was already perfectly obvious.

MR WALKER: I am not suggesting there is a great concession, except it is a very considerable entrenchment upon what the rules of evidence would have permitted had there been an objection, this notion of somebody saying that this constitutes extremely strong evidence that the DNA from the trousers came from Mr Forbes.

FRENCH CJ: But nobody ever really said that. We call this “extremely strong” because it goes beyond a certain range in the range of chances against.

MR WALKER: Your Honour, perhaps not quite. The evidence does not deprecate the expression “extremely strong” as a verbal tag devoid of content. You will recall that it is used as being the content of the substance of the witness’ opinion, although it is explained as being by use of an expression which has conventional support, which is not peculiar to that witness.

FRENCH CJ: It is an expression which has been attached to this numerical range by an organisation, entity, group of people, none of whom is in court.

MR WALKER: Absolutely. Furthermore, having a degree of arbitrariness – obviously decimalised for a start – a million to one, 10,000 to one, it is not I think suggested by anybody that there is any magic in minor variations below, for example, those points. To try and answer Justice Heydon’s questions, it does not therefore answer the formal description of an agreed fact, although there is an element of agreement – or acquiescence, as my friend puts it obviously – in the signalling so explicitly of no objection to that evidence.

It is, it would appear, an approach taken in an adversarial criminal proceeding not to object where objection may well have succeeded – query whether that is a description of waiving the rules of evidence rather than simply not objecting. Many counsel will for excellent reason, for example, not object to some hearsay because of a preference for the hearsay rather than more admissible material about the fact in question, or because there may be some other benefit, and it can scarcely be said that counsel misconducts himself or herself for the defence by permitting some hearsay. Whether that goes so far as waiving the rules of evidence is to be doubted, with respect.

Otherwise, I have to say, notwithstanding the inference available to be drawn that this was a course of conduct based upon considerations formed no doubt during and after the voir dire material had been considered, there is no record before this Court of anything more formal as an explanation of how the jury got this verbal description which was treated by everyone but, I stress, was treated by the Crown as important for its case. One may suppose, of course, that had there not been agreement that other steps would have been debated and argued in relation to the admissibility of the written report, but it is pure speculation for me to go further than simply to say that things would have been different had they not been the same.

HAYNE J: By all this in the context of a foreshadowed application for leave to recall Ms Pearson. See application book page 128 line 23. When the dispute emerges counsel for the Crown - - -

MR WALKER: Said, “Well, I will recall her”, and it is known from the voir dire, one of the passages I took you to just now, it is know from the voir dire that she would be able to say, “Well, those are descriptions I took from the book. I used the book to attempt to generate those”.

HAYNE J: “Not only are those the descriptions I took from the book, I applied them because the numbers generated were - - -

MR WALKER: Yes, that is right, were very high. It is that that produces the argument with which I started my address, namely, that this is a case which is peculiar and particular. By peculiar I do not mean wrong, I just mean peculiar and particular in the forensic course followed when people for the defence were apprised of the kind of material which could be adduced against their client in relation to that sample, in particular, called 2A@.

Your Honours, I am conscious that, to coin a phrase, this is by no means a definite or categorical answer to Justice Heydon and it is, from a prosecution point of view, a somewhat disquieting situation that something which is now criticised by the defence as being inadequate to support proof beyond reasonable doubt was, nonetheless, before the jury after disclosure of voir dire without objection, without challenge relevantly, in cross-examination, not being the basis of a no case submission and not being the basis in relation to its incapacity to prove underlying the address to the jury.

In our submission, there does come a point where the way in which the defence has framed the issues, including focusing them, for sound reasons, but at least for reasons that might be sound, really does prevent this from being ventilated on a further appeal. That is the force, if there be any, in what we have proposed as the third issue in our written submissions. Of course we are aware that there is no complaint about admission or direction to the jury, but in truth the complaint about the incapacity of this to support conviction, bearing in mind that everyone said this was necessary in order to link the accused to the crime scene, in truth it really was saying that this is material which should not have been there and could not have been the subject of anything other than a direction to acquit, and that is running counter to the way in which it was seen at trial.

Now, in our submission, in principle, the notion that this kind of material is properly before a jury, indeed is properly before a jury replete with numbers and, if necessary, explanation tested by cross-examination as to the cogency of reaching the numbers, is all entirely sound. That was a proper approach by the defence. It certainly, in our submission, is something that this Court should approve. The notion that such material is (a) admissible, (b) probative, according to the strength in a particular case, (c) can be presented with numbers. This case is peculiar in the sense that in deference to concerns about numbers, the Crown was willing to, indeed active in, promoting this verbal scale notion. If that has miscarried, then so be it, and that ought to be pronounced.

If, without any misapprehension involved, if by the application of appropriate professional judgment a defence has agreed that that is how it ought to be presented, in our submission, none the worse for that, particularly when the words are as robust in English as the expression “extremely strong”, an expression, which after all, is not entirely foreign to a court, an appellate court, weighing up a prosecution case, it is one of the marks of, obviously, an appellant failing because of the application of proviso where the court looking at the material says, “But this was nonetheless an extremely strong prosecution case, we apply the proviso, and notwithstanding the error, there is no substantial miscarriage”.

Bearing in mind the centrality of the particular fact shorn of all prosecutor’s fallacy which the DNA evidence could prove in this case, in our submission, “extremely strong” were words which could and obviously did have a considerable influence on the jury. That does not mean that that is the only evidence in the case. It is true that it is necessary evidence, but that does not make it the only evidence. It is to be called “only evidence” if you say that it is the only thing that fills the gap filled by it. Well, that is true. That is true, also of eyewitness evidence where otherwise there is nothing to link an accused to the scene of the crime. In our submission, though of course a disbelieved denial or a disbelieved alibi, both of which are present in this case, of course they do not positively prove, leaving aside evidence, anything that contributes to the Crown’s discharge of onus of proof. They are, nonetheless, part and parcel of the overall consideration of the evidence in the case.

BELL J: But absent them being available on the basis of consciousness of guilt reasoning, how does that - - -

MR WALKER: I cannot contribute to the Crown discharging – so I accept that entirely.

BELL J: Indeed.

MR WALKER: But it cannot be said that they are not part of the consideration of the whole of the evidence.

BELL J: True, but - - -

MR WALKER: Please do not misunderstand me. I am not saying a disbelieved denial is evidence contributing to proof beyond reasonable doubt. I am saying that disbelieving of denial is part and parcel, indeed, must be part of a jury’s decision to find guilt beyond reasonable doubt. The difference is not semantic, but it is to be borne in mind that the DNA evidence is not evaluated in isolation.

BELL J: Can I just take up in terms of the agreement, at the respondent’s materials – the voir dire material – on page 122, there was an agreed form of putting to the jury the circumstances in which the sample was provided, which itself might have forensic significance.

MR WALKER: Yes.

BELL J: In the event that was not the way the matter was proceeded with, was that some - - -

MR WALKER: I do not know what happened between them and when your Honour is talking about the - - -

BELL J: All right, there is no – the respondent’s materials do not cast light on why that - - -

MR WALKER: No.

BELL J: All right.

MR WALKER: Your Honours will be aware that there are, from time to time, areas – sometimes they result from the application of public interest immunity for certain surveillance and other investigative techniques. Sometimes they arise because of the – how shall I call it – involvement of the accused with the forces of law and order for other than the charge in question, where matters that still have to be proved to the court concerning the provenance of evidence are the subject of artificial statements. I use the word quite strictly, they are statements which are constructed so as, I hope, never to be wrong, but certainly not so as not to reveal that which would be unfairly prejudicial. That was an episode I understood in that same vein. I do not know why the execution did not occur.

In a sense, that is what happened with these substitutions of verbal descriptions for the numbers. In truth, as a closing remark, we would urge this concerning this highly particular, peculiar forensic course about which, in effect, the defence now complains. It was a course taken which could reasonably then, and reasonably now, be seen to favour the defence, and it would be inappropriate to see it as an error in process or a lack of safety in verdict which should lead to the appeal being upheld. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Hastings.

MR HASTINGS: My learned friend referred to a form of analogy in relation to visual identification evidence. About that, your Honours, we say that clearly is a conceptually different class of evidence which does not manifest the same issues, although it may have its own issues, as is apparent from the evidence in relation to DNA. It is, after all, direct evidence from a witness of a fact in issue in the trial, and in that sense it is entirely different, we say, from the theoretical evidence which is the subject or the basis of DNA evidence.

Now, it has the added appeal, we would suggest, that at the very least a jury could understand the attack on that evidence in that they can relate their everyday experience to issues associated with identifying people, and if there is an attack on the evidence then they can understand that attack and absorb it for the purpose of making an assessment of the facts, unlike, we suggest, by contrast the intellectual challenges which confront the jury in relation to the DNA.

Now, about that, your Honours, what we would say as a result of today’s dialogue is that what it reveals is that there are a series of parallel intellectual issues which confront a jury in relation to which they receive very little assistance in terms of rationalising or correlating. What I am referring to is, first, the evidence which is really we say at the heart of Mr Walsh’s evidence to which you have been referred already at page 137 when at line 20 – and this passage has already been read, I might just read it again because it does seem to us to be important:

They are estimates. They’re statistical estimates only. And they aren’t real numbers, they aren’t real observations. So it’s important not to translate them from the estimates that they are to actual real expectations or real observed numbers.

Now, I pause, your Honours, to say, well, what, we ask, is a jury supposed to make of that when the critical Crown witness says from – not from the outset but early in his evidence that he is not really talking about real or observed numbers but their statistical estimates only? Then on the second plane there is, of course, the evidence to which your Honours have already pointed, or to which you have been pointed, from Ms Pearson and Mr Walsh as well saying that the evidence that is being given does not definitely identify Mr Forbes as the donor of the samples.

So level two is that having been told that this is not a real estimate they are then told that the evidence does not definitely point to Mr Forbes as the donor, or does not categorically point to him. Thirdly, but somewhat contradictorily, we suggest, they are then told that instead the evidence is extremely strong evidence, that it is the sample of Mr Forbes which has been found on the clothing of the victim. Then, lastly, but more importantly, in some process or another which is not defined for them, the jury are then apparently to rationalise these considerations into determining whether the facts have been established beyond reasonable doubt.

Even if the jury were assisted – which they were not in this case – we would suggest that would require an extraordinary level of rationalisation or intellectual application from an average jury to be able to in some way put these factors together in the abstract. The point that we come back to is where we started, and that is that in normal circumstances this process is achievable because there is a reference point or a pathway to reality because there is some other evidence by which the DNA statistical material can be assessed as to its weight.

Our point here is – and I am back where I started – and that is in the absence of some anchor to which the DNA evidence can be tied in order to give it some weight in the form of some other evidence which implicates the accused, then all of these considerations drift around with the jury having what we suggest to be an almost impossible task in translating it into a decision as to whether the guilt of the accused has been established beyond reasonable doubt.

FRENCH CJ: It sounds like you are saying that a need for other evidence is almost a prudential consideration rather than a logical requirement.

MR HASTINGS: I started that way, your Honour, in saying that this morning that the hypothesis of the Crown required some substance to it in order to warrant it being considered as one of the two hypotheses to be assessed by the expert, but I think I am ending on a slightly different point of saying that, in any event, just simply for the purposes of giving the jury some chance of giving weight to the DNA figures there needs to be some other evidence which gives it the colour or force which is applicable and appropriate in the circumstances of the case.

This is, after all, what has been said quite consistently about DNA evidence since it was first approved. It was always recognised that its value or force was derived from the other circumstances in the case. If there are no other circumstances to give it force or weight, then one rhetorically asks, where is the jury to decide or how is the jury to decide whether it establishes the guilt of an accused beyond reasonable doubt.

HAYNE J: The proposition of law which you would have us establish is that there is a particular class of evidence, DNA evidence, which regardless of its particular content, should be held legally insufficient to support a conclusion that a disputed proposition of fact is established beyond reasonable doubt?

MR HASTINGS: Yes, your Honour.

HEYDON J: It is either a rule of inadmissibility or it is a rule calling for corroboration, is it not? In some circumstances it will be a rule of inadmissibility.

MR HASTINGS: Not a rule of inadmissibility, your Honour. We would say that the evidence - - -

HEYDON J: What is the point of letting in evidence that cannot do anything?

MR HASTINGS: It would be a question of adequacy, your Honour. The evidence, and we do not challenge this, has been consistently held to be admissible. The real question then, in our submission, is what force it has in any particular case and a particular case such as this where there is - - -

HEYDON J: But in your case it has no force. You say no conviction could possibly – no persuasion beyond reasonable doubt could possibly be achieved or to be permitted.

MR HASTINGS: I think I was inclined to answer earlier, your Honour, on the basis that for practical reasons that issue crystallises best at the end of the prosecution case in the no case to answer submission.

HEYDON J: In many cases that would be so.

MR HASTINGS: You may be able to do it on the voir dire in advance if the evidence was sufficiently clear but that would not always be the case. Unless there is anything further, your Honours, they are our submissions.

FRENCH CJ: Thank you Mr Hastings. Court will adjourn briefly to consider what course it should take.

AT 2.57 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.21 PM:

FRENCH CJ: At trial in this matter the parties acquiesced in the statistical conclusions drawn from evidence relating to DNA profiles being expressed qualitatively rather than quantitatively. More particularly, they acquiesced in the expression of the statistical conclusions drawn from analysis of material taken from the complainant’s clothing being compared with the applicant’s DNA profile as comprising “strong” or “extremely strong” evidence in support of the contention that the applicant was the source of the material taken from the complainant’s clothing without the jury being told that the particular conclusions made by the witness in the case had yielded a figure of greater than one in 10 billion.

It was open to the jury to conclude from the evidence that was led at trial that the applicant was guilty beyond reasonable doubt. In light of the way the parties conducted the trial this is not, in our opinion, a suitable case to consider the larger question which the applicant seeks to agitate. It is the opinion of all of us that special leave should be refused.

The Court will adjourn until 10.15 tomorrow morning.

AT 3.23 PM THE MATTER WAS CONCLUDED