Bropho v State of Western Australia [2010] HCATrans 138 (28 May 2010)

Last Updated: 2 June 2010

[2010] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P24 of 2009

B e t w e e n -

ROBERT CHARLES BROPHO

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 28 MAY 2010, AT 1.57 PM

Copyright in the High Court of Australia

MR S.A. WALKER: May it please the Court, I appear for the applicant in this matter. (instructed by Western Legal)

MR B. FIANNACA, SC: May it please the Court, I appear with MR L.M. FOX for the respondent. (instructed by Director of Public Prosecutions (WA))

HEYDON J: Yes, thank you, Mr Walker.

MR WALKER: Your Honours, there are two grounds in the application for special leave to appeal. They both concern the treatment of DNA paternity evidence by the Court of Appeal in relation to an appeal against conviction by the applicant in the District Court, that court being constituted by a judge sitting alone. Ground 1 addresses the question of the so-called joint paternity index. Can I start by asking your Honours to refer to page 70 of the application book. Perhaps I should preface my request that you look at that page by indicating that in a discussion a few moments ago I had with Mr Fiannaca and Mr Fox, it emerged that there was an earlier version of the application book which is not identical to the version I have in front of me. I apprehend your Honours that you have the same version I have and the respondent, I think, was served with some copies of the original which was then rejected by the Registry and was served with the later one as well, and there has been - - -

HEYDON J: On our page 70, paragraph 100 starts in the fifth line with the words “He explained”.

MR WALKER: Thank you, your Honour.

HEYDON J: That is the same, is it?

MR WALKER: Yes, it is indeed the same as the one which I have before me and unfortunately my learned friends were operating, until a few moments ago, from a different one but they do now have the correct one before them. Your Honours, at page 70 of the application book at lines 21 to 36 his Honour the trial judge was dealing with the question of the paternity index or the paternity indices. He, at that point, was referring to and commenced referring to Dr John Buckleton at the foot of the previous page. Dr Buckleton was the expert who was called by the respondent, the State of WA.

One sees in paragraph 100, as I say particularly lines 21 to 36, that Dr Buckleton was provided with DNA profiles in relation to Isabel Bropho, she being the complainant, Deanna and Latoya, the two children, and the accused, and the end result of that examination we then find set out in the balance of that paragraph. Your Honours, the conclusion of Dr Buckleton – there are three conclusions set out sequentially there. The first was an opinion directed to the child, Deanna Bropho, and the conclusion there was that the genotypes of that child were 30,000 times more likely if the accused, the applicant, was is the father than if a random man from the same subgroup or subpopulation was the father.

Then secondly, the second conclusion was that the same or similar calculation done in respect of the other child, Latoya, resulted in an opinion that her genotypes were 700 times more likely if the accused was the father than if a similar random man was the father. Thirdly – and this is the point of our first ground, your Honours – Dr Buckleton was asked to prepare a paternity index in respect of each of Latoya and Deanna and his opinion was that the genotypes of each of them were 800,000 times more likely if the accused or applicant was the biological father of the both – and we, of course, seek to, as it were, underline the word “both” – compared to a random male from the same subpopulation.

The complaint, if you like, the assertion before the Court of Appeal was that, although not noticed at trial by the learned trial judge nor by counsel, that there had been an error in the admission and the treatment of this third calculation by Dr Buckleton, that is to say, the calculation of a joint paternity index, the assertion or submission in the Court of Appeal being that it had not been found as fact by the trial judge that the children had a common father and such a proposition was the unstated and, we say and said, unproven premise, the establishment of which would have been necessary, we respectfully submit, in order for it to be relevant and legitimate for the trial judge to have taken into account evidence of joint paternity.

At application book page 73, your Honours, the learned trial judge having assessed the evidence of Dr Buckleton and having put it against the other expert called on behalf of the applicant, Professor Boettcher, at paragraph 109, line 35, his Honour found that Dr Buckleton had:

established to my satisfaction beyond reasonable doubt that the subpopulation model is a scientifically valid proven means of establishing a paternity index which in turn provides a statistical result that the genomes of each of [the children] are 800,000 times more likely if the accused is the father of both of those children than if some other Aboriginal male from the same subpopulation on the State’s DNA database was the father.

Again, your Honours, although there were the three indices or indexes which Dr Buckleton addressed and expressed conclusions about, child A, child B, and then both child A and child B, his Honour’s expression of his conclusion as to the evidence of Dr Buckleton focused on the particular conclusion and the particular paternity index directed to, we say, joint paternity. It is the one of the three that came up with – of the three, the result was the highest and very much the highest. It was a high figure, 800,000 times.

Your Honours, in the Court of Appeal – can I refer to application book 147 – the matter was certainly addressed, the ground of appeal, if you like, the complaint about the use of the joint paternity index was understood and was addressed. Appeal Justice Miller, with whose reasons the other members of the court agreed, set out the evidence of Dr Buckleton at application book 147, including, at about lines 16 and 17, the third conclusion going to the question of whether the appellant was the biological father of both children. The fact that the use of the joint paternity index had been challenged on appeal is specifically noted in his Honour’s reasons at application book 155, and that is in paragraph 100 at about line 15.

At the top of that page, paragraph 98, his Honour commenced to address this very question, the question of joint paternity. He noted at the commencement of that paragraph, in the second sentence, that it was that particular “calculation which impressed itself upon the trial judge”. From halfway down, line 20, at application book 155 through really to 158, the Court of Appeal, through his Honour Justice Miller, dealt with this issue and this complaint on appeal. His Honour said, going back to 155 at paragraph 100, halfway down the page, that it seemed to him, despite the challenge “that the joint paternity issue was important, for the reasons discussed”. His Honour then set out the summary of the DNA typing results from Mr Webb’s report. Mr Webb was the other witness who simply produced, if you like, those results.

Then at application book 156 there are some other tables which set out the obligate alleles that the true father had to possess in relation to each of the two children. We find those in the two tables at 156. Your Honours, at 157, paragraph 106, the conclusion was that:

The summary of typing results reveals that the appellant is capable of contributing at these loci the obligate allele . . . for both children.

Then the submission made before the Court of Appeal by the respondent today, the State, was to meet this complaint, that:

the relevance of the statistical analysis (namely, that the appellant was capable of contributing not only the common alleles, but the different alleles for both children) is that it rebuts the notion of coincidence that the children’s DNA matches the appellant.

We respectfully submit that this is certainly not the way in which the matter had been approached by his Honour the learned trial judge who had simply received, and to be fair to him, in the absence of anyone raising the point about the joint paternity index, but he simply took on board, as it were, the three conclusions, including this one from the joint paternity index, and said nothing, we submit, about coincidence or, indeed, did not make a finding that in fact the children did have joint paternity. His Honour, I accept, did, of course, recite or observe or note the evidence of the complainant to the effect that she was having sexual relations with the applicant at the time. My learned friends have set out in their outline of argument references to the pages of his Honour the trial judge’s reasons for decision in that regard.

However, our submission is that the treatment by the Court of Appeal was a different one essentially from that adopted by the trial judge and importantly, we submit, was one that was conducted without the assistance of evidence from Dr Buckleton or anyone else. In other words, we respectfully submit, the Court of Appeal took upon itself the task of making observations about the tables at application book 155 and 156, particularly at paragraph 105 at the top of application book 157, of concluding for itself or drawing certain conclusions in relation to the alleles, namely, conclusions about alleles which were in common and alleles which were different and, in effect, that the applicant’s alleles, his genome, were such that he could be, in the view of the Court of Appeal, the father of both children.

Our submission is that that is not the way in which the trial judge approached it, that the expert had not offered such an opinion and that in the absence of such evidence, we respectfully submit, it was an error of law for the Court of Appeal to deal with it in that way. In the middle of application book 157, the submission for the respondent before the Court of Appeal is set out, which was adopted by the Court of Appeal and that led then, we submit, at page 158 of the application book, to the conclusion at paragraph 111, line 10. His Honour said:

In my opinion, the DNA evidence led by the prosecution was capable of establishing the likelihood that both Deanna and Latoya were fathered by the same person.

Two paragraphs further down, at 113, his Honour said:

I consider that it was open to the trial judge to conclude (if he was required to do so) that he was satisfied beyond reasonable doubt that the scientific evidence established that the appellant was the father of each of [the children].

Again our submission, your Honours, is that it may have been possible for an expert to express such an opinion, but it not having been expressed by an opinion by an expert in the trial and there being no relevant expert evidence before the Court of Appeal, we respectfully submit, it was not open to the court for itself, as it were, to carry out the calculation and conclude that it was open to the trial judge to reach this particular conclusion. Again we say his Honour appears not to have reached that particular conclusion anyway. Your Honours, those are the submissions I would seek to make in relation to the first ground.

In relation to the second ground, the position here is that there was an error in the evidence of the expert, Dr Buckleton, undetected at trial, not the subject of submissions at trial and not noted by his Honour the learned trial judge. It was a matter raised in the appellant’s case, the written outline of submissions filed in the Court of Appeal, and certainly it was a matter that was considered by the Court of Appeal. The setting out by the trial judge of the relevant evidence at trial, in our submission, commences at application book 69 with paragraph 98, the second last paragraph, simply noting Mr Webb, the other expert’s evidence, that there was:

a mechanism for calculating the statistical probability of the accused actually being the biological father of either or both of these children –

but that, in effect, that matter was assigned to Dr Buckleton to express an opinion about. Then from there and over the page, Dr Buckleton’s evidence is the subject of discussion by the trial judge.

KIEFEL J: Putting the DNA evidence to one side, is it not the case that the trial judge accepted the complainant’s evidence, entertaining no reasonable doubt about it and on that basis could have found and probably did find that he was guilty of the five counts.

MR WALKER: Yes, that is the case, your Honour. I can see that that is so. The reasons of the learned trial judge were expressed in that particular way and expressed in quite strong terms as to his belief of her veracity and his disbelief of the applicant. That fact that his Honour had reached those conclusions and expressed those opinions was certainly, of course, noted by the Court of Appeal, but my submission is that this is not a matter in the Court of Appeal which was disposed of by resort to the proviso. It has been commented on or there has been reference made to it in our outline of argument, but it was not the way in which the matter was dealt with.

So in the Court of Appeal, we submit, what really occurred is that there were complaints about errors of law and assertions of a miscarriage of justice arising from both the mistake corrected in the Court of Appeal,

three per cent, five per cent, for the one child Deanna, and the joint paternity index I have already addressed on. Those matters were disposed of in the particular way in which their Honours did, without reference to the proviso. Our submission is that the Court of Appeal’s treatment of these two matters, we say they are significant matters, we say that they are important illustrations of the ways in which DNA evidence, in this case, DNA paternity evidence, needs to be very carefully addressed by trial judges and, indeed, by intermediate appellate courts and that when errors emerge, it is important, we submit, that they are dealt with in a legitimate and proper way.

Our submission is that the Court of Appeal’s approach in disposing of the joint paternity index question and in concluding that the error disclosed at the appeal as to the three per cent or five per cent value ascribed to theta or FST, that their conclusion of that was of no significance. There was no evidence to show it was of significance. Our submission, with respect, is that there was evidence to show it was of significance, that parameters had been put up and adopted by the experts, including Dr Buckleton. At the Court of Appeal hearing it became clear that an error was there and our submission is that the court needed to deal with those matters adequately and, we submit, by finding that there was a miscarriage of justice arising from errors of law and if so, the proviso would then fall for consideration. It did not. We have set out in our submissions what the applicant’s position is about the proviso, but it was not the way in which the appeal was determined.

KIEFEL J: Nevertheless, the application of the proviso would be relevant on any appeal in this Court, would it not?

MR WALKER: Yes, it would. I accept that, your Honours. We say these are important questions of law. They are not just questions of fact, in our respectful submission, and the, if you like, fragility in terms of possible errors in the calculation of DNA statistical evidence and the import of such evidence and of errors in its conduct, are of the greatest significance because despite the trial judge’s structuring of his reasons, it is our submission that it is clear that the 800,000 figure had a significant effect on his Honour’s conclusions, and the applicant, we would say, was deprived of the chance of an acquittal. Thank you.

HEYDON J: We need not trouble you, Mr Fiannaca.

It has not been demonstrated that there is any error in the reasoning of the Court of Appeal which creates any prospect of an appeal succeeding, nor has any injustice been arrived at in the particular case. The application is therefore dismissed.

AT 2.17 PM THE MATTER WAS CONCLUDED