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Supreme Court of Victoria - Court of Appeal |
Last Updated: 9 December 2020
COURT OF APPEAL
S APCR 2019 0083
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JUDGES:
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WHERE
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DATE
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MEDIUM
NEUTRAL CITATION:
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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary – Attempted rape –Intentionally causing injury – Indecent assault – DNA detected on several items at crime scene – High likelihood ratio that applicant contributed to several DNA profiles – Whether prosecution excluded reasonable possibility of contamination – Whether convictions unsafe and unsatisfactory – Whether judge erred in directions to jury – Path to conviction open to jury – No misdirection by trial judge – Leave to appeal refused.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant:
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Mr A P Lewis
and Ms S Locke |
Doogue + George Defence Lawyers
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For the Respondent:
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Dr N Rogers SC
with Ms J Warren |
Ms A Hogan, Solicitor for Public Prosecutions
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PRIEST JA
1 On 11 October 2018, following a trial that ran for 47 sitting days, the applicant was found guilty by a Supreme Court jury of charges of aggravated burglary, attempted rape, indecent assault, and intentionally causing injury. The offending that gave rise to those charges occurred in 2007. This was the applicant’s second trial, the first having been aborted after some seven weeks of hearing.
2 On 22 March 2019, the applicant was sentenced to a total effective term of 10 years and 2 months’ imprisonment, with a non-parole period of 7 years.[1] By notice dated 29 April 2019, the applicant now seeks leave to appeal against conviction. He relies upon the following proposed grounds:
Ground 1: The verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence[.][2]Ground 2: The learned trial judge erred in directing the jury that before the jury could convict they would need to be satisfied beyond reasonable doubt that the applicant’s DNA was deposited on one of the cigarette butts, the blindfold, or the cable ties, and that it was deposited in incriminating circumstances.[3]
3 For reasons that follow, we would refuse leave to appeal.
Circumstances surrounding the commission of the offences
4 At about 2:30 am, on Saturday, 13 October 2007, the victim, ‘Jasmine Belmont’,[4] returned home from work. She lived on her own, in a unit in Chirnside Park. She drove into her garage, and closed the roller door behind her. She entered her unit, and then locked both the flyscreen and the front door.
5 Sometime later, Ms Belmont heard a faint noise coming from somewhere within the unit. She described it as sounding like ‘paper rustling’, but dismissed it at the time as nothing more than an insect buzzing. She showered and dressed for bed, wearing tracksuit pants and a top.
6 Upon entering her bedroom, Ms Belmont was confronted by a male wearing dark clothing, a black balaclava, and latex gloves. He was armed with the broken-off leg of a piece of wooden furniture (charge 1 — aggravated burglary).
7 Ms Belmont begged the intruder not to harm her. He demanded that she not look at him. He then grabbed her forcibly and bound her wrists together with cable ties. She did not struggle while this was happening. She believed, at that stage, that the man was only intent on stealing from her. In an effort to placate him, she told him that ‘Jesus loved’ him. That only provoked the curt response, ‘shut up’.
8 The intruder pushed Ms Belmont face-down onto her bed. He pulled down her tracksuit pants and her underwear. He then lay down on top of her. Having suddenly realised what the offender had in mind, she began to struggle and to cry out for help. He told her to be quiet. As she struggled against him, she fell off the bed and onto the floor.
9 The offender then struck Ms Belmont to the right side of her face with the broken-off piece of furniture. She was dazed by the blow. He taped over her neck and mouth with grey duct tape that he had brought with him. He also covered her eyes with a homemade blindfold. This was made from a piece of dark coloured material, to which a shoelace tie was attached.
10 Once Ms Belmont had been bound, gagged, and blindfolded, the intruder began to touch her vagina with his fingers. She felt that he was attempting to penetrate her (charge 2 — attempted rape). While this was happening, the intruder also pinched one of Ms Belmont’s breasts with his free hand (charge 3 — indecent assault).
11 Ms Belmont continued to struggle on the floor. The intruder stood up and placed his foot on her throat, pressing hard. She was unable to breathe and passed out (charge 4 — intentionally causing injury).
12 When Ms Belmont regained consciousness, she saw that her hands were no longer bound together. The cable tie that had been placed around her right wrist had been removed. The duct tape had also been pulled down from her mouth and was hanging loosely around her neck. Her tracksuit pants and underwear had been pulled back up. When she sat up, she saw the offender still standing in the doorway to the bedroom. He told her that she ‘had [fallen] asleep.’ He then left the unit.
13 Ms Belmont staggered into the kitchen and armed herself with a knife. She dialled 000, the time of that call being recorded as 4:33 am. She noticed that the intruder had left the laundry light on. Later that morning, after the police had arrived, she realised that, although her attacker had put her tracksuit pants back on, they were inside out.
Investigation and identification of the applicant as the offender
14 Ms Belmont described the intruder as being about 5’8” to 5’9” tall, and of medium build. She said that he was not ‘overweight but he wasn’t skinny’. She noticed that he had a slight pot belly. She described him as having white skin, having seen it through the eye holes in his balaclava. She inferred that he was young because she did not notice any wrinkles beneath his eyes.
15 Ms Belmont observed that the offender wore a plain gold ring on his left ring finger. She could see the ring through the latex glove. She described him as having spoken with an Australian accent.
16 When police arrived at the unit, they saw that Ms Belmont had a number of facial injuries. Duct tape was hanging around her neck, and a single cable tie was still attached to her left wrist. She was subsequently taken to hospital and underwent a forensic medical examination. It revealed that she had sustained a vaginal tear, a laceration to her lower lip, and bruising to an eye. There was also bruising to her chin, neck, shoulders, abdomen, and arms.
17 Police at the scene seized a piece of dark blue cloth with a shoelace attached. This was the blindfold that had been placed over Ms Belmont’s eyes. A subsequent forensic examination of that item revealed that the cloth had been cut from a piece of clothing. It displayed signs of recent cutting damage. Police also seized eight cable ties that were located in the bathroom.
18 Outside the unit, police found the tip of a single unused cigarette in a garden bed, near the border of the side and front fences. The cigarette tip was located very close by the rear sliding door of the unit.
19 Police also found two used cigarette butts on the neighbour’s side of a wooden fence that divided Ms Belmont’s property, at number 36, from that of her neighbour, Giovanni Bonica, at number 34. One of those used butts was located on the edge of the lawn, in the grass adjacent to the garden bed. The other was found close by the side of the block, on the middle rail of the fence. Both used butts were of the ‘Peter Jackson’ brand.
20 The evidence given by Leading Senior Constable Scott Papeneux, a crime scene officer who attended that morning, was that the used butts, and the unused cigarette tip, were dry. That was so, although Papeneux said that it appeared to have been raining earlier that night. Papeneux also observed some disturbance to the soil in the neighbour’s garden bed, immediately proximate to where the two cigarette butts were found. It appeared to him as though someone had stood at that spot for some time, possibly while smoking the two cigarettes.
21 Mr Bonica was an elderly man. He told police that no one in his household smoked. He also told them that he did all of his own garden maintenance work.
22 From their examination of the crime scene, police concluded that the intruder must have kept watch on Ms Belmont’s unit from Mr Bonica’s garden. He must then have entered her unit through the rear sliding door. That conclusion was fortified when Ms Belmont told police that she occasionally forgot to lock that door.
23 Several of the items seized by police were sent for DNA analysis. These included items found in the unit, as well as the two used cigarette butts located on Mr Bonica’s property. They also included Ms Belmont’s tracksuit pants, which clearly had been handled by the intruder. In addition, Ms Belmont’s wrist was swabbed for DNA. At that stage, however, no link could be drawn between the DNA detected on those items and any person other than Ms Belmont herself.
24 A single source DNA profile from an unknown male was detected on the two cigarette butts. As a result, investigators obtained voluntary DNA samples from 168 men, all of whom were either known to Ms Belmont or lived near her home. Those DNA samples were compared to the single source DNA found on the cigarette butts. No match was detected. The DNA samples taken from the 168 men were not, however, compared with the DNA found on the items located within the unit. Thereafter, the investigation stalled for some years.
25 All this changed when, on 15 March 2012, the applicant provided police with a sample of his DNA in connection with an unrelated matter. The applicant’s sample was placed on the police DNA database. About two months later, a ‘match’ was recorded and the applicant became a ‘person of interest’ with regard to the present matter.
26 The prosecution case, in so far as it was based on the DNA evidence, involved DNA profiles detected at six separate sites. These sites were marked as items 1-1, 1-2 and 1-3 (from the blindfold); item 4‑1 (from the cable ties); and items 5A-1 and 5B-1 (from the two used cigarette butts). Items 1-1, 1-2, 1-3, and 4-1 contained what were described as mixed two-and-three-person profiles. As indicated, the cigarette butts (items 5A-1 and 5B-1) were of greater significance because each contained a single source profile.
27 The striking feature of the DNA evidence in the present case was the particular method that was adopted for its analysis. This was a newly-developed technique known as STRmix.[5] Introduced in Victoria in 2013, STRmix is a statistical software package used to interpret DNA profiles obtained from items of evidence.[6]
28 In the present case, STRmix compared the DNA profiles obtained from the crime scene items against the DNA sample provided by the applicant and produced what are known as ‘likelihood ratios’. As explained by this Court in Tuite [No 1], for each DNA sample where the suspect cannot be excluded as a contributor, a ratio is calculated which shows how much more likely it is that the suspect was the source of the DNA (or a contributor to it) than that some other person chosen at random from the population was the source (or a contributor).[7]
29 For the purposes of this comparison, the DNA profiles from the crime scene items were themselves amplified using two specific programs known respectively as ‘Profiler Plus’ and ‘PowerPlex 21’. These amplification programs were said to enable what is sometimes described as ‘low copy’, or relatively poor quality, DNA material to be studied, analysed, and compared.
30 The DNA analysis produced very high likelihood ratios indeed, as follows:
|
Item |
Evidentiary profile |
Likelihood ratio[8] |
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1-1 (Blindfold) |
Partial, mixed three‑person profile |
23 million |
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1-2 (Blindfold) |
Full, mixed three-person profile |
9.7 million |
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1-3 (Blindfold) |
Full, mixed three-person profile |
2.7 x 1021 (or 2.7 x one sextillion)[9] |
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4-1 (Cable ties) |
Partial, mixed two-person profile |
35 million |
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5A-1 (Cigarette Butt) |
Full, single source profile |
29 billion |
|
5B-1 (Cigarette Butt) |
Full, single source profile |
29 billion |
31 After the completion of the DNA analysis, the applicant was arrested on 28 June 2012. He was formally interviewed in relation to these offences. He denied any involvement. He claimed never to have seen Ms Belmont and said that he had never been to her home.
32 Importantly, however, the applicant admitted, in the course of the interview, that he had smoked cigarettes in 2007. He told police that he had smoked all brands, and when asked specifically about Peter Jackson cigarettes, he replied that he had smoked ‘every single cigarette under the sun’.
33 Police informed the applicant that his DNA had been detected on the two cigarette butts found on Mr Bonica’s property. They invited him to provide some sort of explanation. He proffered the suggestion that he might, at some stage, have driven past Ms Belmont’s home, and might possibly have emptied his car ashtray onto the road. He then suggested that someone might have trodden on the cigarette butts and, somehow, deposited them in Mr Bonica’s garden. He also admitted that he had, in the past, kept cable ties in his shed.
34 For reasons that are not apparent, the applicant was not charged at that stage with these offences. Rather, he was released pending further inquiries. It was not until more than a year later, on 20 September 2013, that the applicant was charged on summons. It seems that he was already, at that time, in custody in relation to another, quite unconnected, matter.
Procedural history
35 The applicant was eventually committed to stand trial in January 2014. His previous legal representatives evidently decided to conduct his defence as a test case. In a pre-trial application, they challenged the admissibility of the expert evidence, which the prosecution proposed to lead, about the DNA profiles obtained from the crime scene items and the calculation of the highly incriminating likelihood ratios.
36 The hearing lasted 22 days before Emerton J, who heard evidence from three prosecution experts and one defence expert. As summarised in her Honour’s reasons, the defence contention was that:
STRmix has not been shown to be a reliable tool for the statistical evaluation of DNA profiles. The defence argues that STRmix has not been properly validated for the use to which it has been put by VPFSS and it is not widely accepted by the forensic science community.[10]
37 Her Honour rejected the defence challenge, holding that the DNA evidence was admissible under s 79(1) of the Evidence Act and that s 137 of that Act did not require its exclusion. Her Honour carefully examined the validation studies carried out in relation to the STRmix methodology and was satisfied that the requirement of evidentiary reliability had been met. In Tuite [No 1], this Court refused leave to appeal from that decision.[11]
38 A second interlocutory appeal challenged a quite separate decision, imposing limits on evidence sought to be led on behalf of the defence from an expert witness, Ms Jane Taupin. That evidence was intended to expose various alleged infirmities associated with the use of STRmix.[12] That interlocutory challenge also failed.
39 Over the next two years, this matter came before the Trial Division on more than 25 separate occasions. There were numerous mentions and directions hearings. The key issue was always whether the DNA evidence was reliable. As we have mentioned, that question had already been exhaustively investigated, at first instance and on appeal, in 2014 and 2015.
40 It was not until late 2017 that the matter finally came on for trial. As previously indicated, some seven weeks or so into the trial, the jury had to be discharged. The judge attributed responsibility for the trial having to be aborted to the conduct of the applicant’s previous trial counsel.
41 Between July and October 2018, the retrial took place. As we have noted, the applicant was eventually convicted. He was sentenced in March 2019. This appeal was originally scheduled to be heard in May of this year but, through no one’s fault, it had to be adjourned to October 2020. Regrettably, therefore, the appeal has been heard more than seven years after the applicant was first charged, and more than 13 years after the offending occurred.
The conduct of the trial
42 Right from the outset, the defence made clear that the identity of the offender was ‘the fundamental, central issue’ in the trial. The prosecution case against the applicant was, of course, virtually all circumstantial. It turned largely upon the DNA evidence, which was pivotal.
43 The defence persisted with its challenge to the reliability of STRmix as a method of DNA analysis, despite that challenge having been rejected by Emerton J after careful consideration of extensive expert evidence, and despite this Court’s refusal of leave to appeal from her Honour’s decision. As we have said, in performing what has come to be known as the ‘gatekeeper’ role on evidentiary reliability,[13] Emerton J was satisfied of the ‘foundational validity’ of the STRmix methodology.[14] That should have been the end of the matter.
44 The renewal of the reliability challenge before the jury meant that the prosecution were obliged to call three of the expert witnesses who had given evidence before Emerton J, together with three additional expert witnesses. The defence called three experts of their own. As a result, the jury had to grapple with a substantial body of expert evidence of great complexity and involving vast amounts of technical and statistical detail. Given the failure of the challenge before Emerton J, it is not clear to us how it was thought that the renewed challenge had any better prospects of success before a jury.
45 The prosecution experts were:
46 Ms Scott, Dr Taylor and Ms Federle had earlier given evidence before Emerton J. All six experts attested to the accuracy and reliability of STRmix, Profiler Plus and/or PowerPlex 21. They also described the use of these programs, in recent times, by various forensic laboratories around the world.
48 The tenor of the defence evidence was to cast doubt upon a number of aspects of STRmix, suggesting that the likelihood ratios that the prosecution had obtained, through the amplification of the low copy, or trace, DNA samples might be unreliable. The defence mounted a full-fledged attack upon the quality of the DNA evidence. That attack was conducted at a level of technical detail rarely seen in any court, let alone in a jury trial.
49 This single-minded attack upon STRmix made it all the more surprising when, shortly before the appeal to this Court was to be heard, the defence suddenly switched tack, and abandoned that part of the grounds of appeal which challenged the reliability of the DNA evidence. That is a matter to which we shall now turn.
The appeal
50 As indicated, in April 2019, the applicant filed a written case in support of his application for leave to appeal against conviction. That written case included a further, and sustained, attack upon the reliability of STRmix generally, and on the DNA evidence. Several days before this application was scheduled to be heard, however, the Court was informed that the applicant would no longer be pursuing that challenge.
51 This seemed a surprising decision in the circumstances. It must be assumed that the challenge to reliability was only renewed before the jury because it was assessed as having real prospects of success, notwithstanding the failure of the earlier challenge before Emerton J. On that assumption, and given the time and resources devoted to the issue at trial, it might have been thought that the complaint about unreliability was sufficiently strong to be maintained on appeal.
52 Instead, the applicant proceeded in this Court on the basis that the jury had been entitled to accept the reliability of the DNA evidence. That meant that this Court would proceed on the basis that the applicant’s DNA had been found on the blindfold (items 1-1, 1-2, and 1-3), and the cable ties (item 4-1). It also meant that he was identified as the sole contributor of DNA on the two cigarette butts (items 5A-1 and 5B-1).
53 That sudden and very late concession on the part of the applicant changed the entire focus of this appeal. It meant that, as a practical matter, the defence had to provide some sort of credible explanation as to how the applicant’s DNA came to be found on the various incriminating objects found within the unit, as well as on the cigarette butts. The applicant sought to meet that challenge by putting forward several hypotheses that, he submitted, were both reasonably open and consistent with innocence.
54 With regard to the DNA found on the blindfold and the cable ties, the applicant submitted that there were two possible explanations as to how that might have occurred. First, it was submitted that the evidence of Papeneux, the police officer who examined the crime scene, was deeply unsatisfactory. It was argued that his description of events left open the very real possibility that he had mishandled the various objects located at the scene. It was Papeneux who had taken possession of the cigarette butts, and it seems that he had done so before handling the items located inside the unit. The applicant’s DNA (which, it was now acknowledged, was on those cigarette butts) could have been transferred, so it was said, by way of contamination from Papeneux’s gloves onto the blindfold and cable ties.
55 Second, and quite separately, it was submitted that the police investigation in 2007 had been so incompetent as to allow for the real possibility that, even if the applicant’s DNA was on the items found within the unit, someone else may have been the offender. The following matters were identified as supporting that submission:
The possibility of contamination
56 As indicated, the possibility of contamination upon which the applicant principally relied before this Court was said to have arisen through the demonstrated incompetence, at the crime scene, of Papeneux. In order to understand the way in which this argument was orally developed, it is necessary to set out, in some detail, a summary of his evidence in-chief, and his cross‑examination.
57 At the time of the offending, Papeneux was a regional crime scene officer at the Maroondah and Yarra Ranges crime desk. He had previously, in 2004,[15] attended a four week training course in order to qualify for that role. That course covered the collection of DNA evidence, including the importance of ensuring that contamination, or cross-contamination, of exhibits did not occur.
58 Papeneux attended the crime scene in company with Senior Constable Robin McGillivray, another crime scene officer. They arrived at about 9:30 am. It had been agreed between the two of them that Papeneux would conduct the physical examination, and take photographs, and that McGillivray would make notes. They initially approached the two detectives, Senior Constable David Newman and Senior Constable Karen Porter, who were in attendance and standing outside the crime scene. No one else was inside the scene at that time.
59 At 9:34 am, Papeneux and McGillivray entered the scene with Newman, who conducted a brief ‘walk through’.[16] Newman pointed out a number of items of interest. Papeneux said that he ‘would have been’ wearing gloves at that stage.
60 Papeneux initially observed two wheelie bins outside the unit, next to the fence separating Ms Belmont’s and Mr Bonica’s properties. He said:
There was a smaller green topped one and a larger yellow topped one. To the left-hand side of the yellow topped one was a dry square on the ground that appeared to be about the same size as the base of the yellow recycling bin.
Papeneux added that the area around that dry patch was wet when he saw it. That led him to conclude ‘that the bin had been moved after it had stopped raining’ that night.
61 Papeneux and the other officers then proceeded inside the unit. There, Newman pointed out the blindfold ‘on the floor, outside the laundry door’. Papeneux said that he did not, at that stage, touch that item. Nor did any of the other officers present. They then proceeded through to the lounge room, where he observed a number of cable ties, a length of duct tape with hair attached, and a serrated kitchen knife, which were on the coffee table. Again, neither he nor the other officers present touched those items at that stage.
62 The officers then proceeded into the main bedroom. There, Papeneux observed the bed pushed askew, and a cable tie on the floor, underneath some stationery. Neither he nor the other officers present touched those items. They then proceeded through the other two bedrooms, which did not contain ‘anything remarkable’, before entering the bathroom. There Papeneux observed
a series of white cable ties the same size apparently as the other ones. There [were] eight of those, six of them were ratcheted together and two of them were just lying free and there was a roll of grey plastic duct tape.
63 Papeneux said that neither he nor the other officers present touched any of those items at that point. He said that he then returned to the police car in order to obtain number markers and a camera. At 9:50 am, Papeneux proceeded to take photographs of the crime scene, and of the various items of interest that had been pointed out during the ‘walk through’.[17] At about 10:22 am, he took photographs of the single unused cigarette tip in the courtyard,[18] before collecting and bagging it.
64 In his evidence in-chief, Papeneux described the process that he and McGillivray adopted as follows:
MS WARREN: ... Now, could you explain please, firstly, how did you do that and who did that?PAPENEUX: Well it would have been — it was a combination of me and my partner. He would have prepared the bag that was for the exhibit to go into. I would have picked it up, put it in the bag and sealed it.
MS WARREN: Your partner Robin McGillivray?
PAPENEUX: That’s correct.
MS WARREN: When you say he would [prepare] the bag, what do you mean by that?
PAPENEUX: He would have written the references on it so the address, the LEDR number, the date, maybe the time and perhaps the description of the exhibit and perhaps the location of it.
MS WARREN: Then you said that you would have picked up the exhibit[,] is that right?
PAPENEUX: Yes.
MS WARREN: And you would have placed it in the bag?
PAPENEUX: Yes.
MS WARREN: And then what do you do with the bag?
PAPENEUX: I think we dropped it off at the front door on our way out to the front of the house.
MS WARREN: Before you do that do you do anything in terms of closing the bag or otherwise?
PAPENEUX: Yeah, the bag was staple closed.
MS WARREN: Staple closed?
PAPENEUX: Yes, I believe so. We had a marshalling, sort of like a marshalling point we decided at the front of the house for the exhibits.
MS WARREN: Yes, okay. We’ll come back to that shortly. When you collected this item what were you wearing in terms of protective wear?
PAPENEUX: Gloves and a mask.
65 Shortly thereafter, Ms Warren asked that Papeneux be handed the paper bag that contained the single cigarette tip. The following exchange occurred:
MS WARREN: The tip of the cigarette butt, did you put that in there?PAPENEUX: Yes. Well it certainly looks like the one. Just as a matter of interest there doesn’t appear to be any staple holes in that.
MS WARREN: Okay?
PAPENEUX: So it may well have been folded over and left like that.[19]
MS WARREN: Okay. That’s just an observation you’ve just made now[,] is that right?
PAPENEUX: Yes.
MS WARREN: Okay. Now, in relation to that cigarette tip, when you collected it, or certainly if at the point that you observed it say so, but did you notice anything in particular about that in the context of the surroundings?
PAPENEUX: Well it was dry.
MS WARREN: How does that compare to the surroundings as you perceived them?
PAPENEUX: The general surroundings at the scene were — it had been raining at some stage.
66 Papeneux said that he then continued taking photographs numbered 72–88. Those photographs were of the wheelie bins next to the fence, the patch of dry ground next to the yellow-topped bin, and of the boundary fence, as seen from Mr Bonica’s side. The photographs of the boundary fence included close-ups of the used cigarette butts.
67 Papeneux’s evidence was that at about 10:35 am, once photographs of the cigarette butts had been taken, and of the view over the boundary fence into Ms Belmont’s courtyard, he collected the butts (which became items 5A-1 and 5B-1). He described the process of collection in similar terms to that which he undertook to collect the cigarette tip:
Once again I think the bags were prepared by my partner wearing gloves[,] changed between each exhibit and a mask, collected each one and put it into a bag probably similar to this one and folded it over.
68 Papeneux said that the butts were collected and individually bagged. He agreed that, in accordance with his normal practice, he would have changed gloves both before and after collecting each butt. In cross-examination, he agreed that he could not recall the specific order in which the butts were collected. Nor could he independently recall having worn gloves that morning.
69 With regard to the appearance of the butts, Papeneux’s evidence was that ‘neither of them appeared wet’ and that his ‘general impression was that it had rained sometime in the not too distant ... past.’ He was then asked about his next steps:
MS WARREN: Once you had collected those items and bagged them in the way that they had been bagged what did you do with those bags?PAPENEUX: I believe I would have given them to my partner.
MS WARREN: To Mr McGillivray?
PAPENEUX: Yes.
MS WARREN: Where did they go from there?
PAPENEUX: They would have gone back to the scene where we were putting the other exhibits at the front door.
MS WARREN: Is that what you described as the marshalling point before?
PAPENEUX: Yes.
MS WARREN: After you did[,] what did you do next please?
PAPENEUX: We had to carry all our equipment and so on, the camera and what have you, back into the other scene and we then commenced to collect the original five exhibits.
70 In cross-examination, Papeneux accepted that his having collected the tip of the unused cigarette, and the two used butts from the neighbouring property, was a deviation from his usual practice of taking all of the photographs first, and then collecting the exhibits immediately thereafter. In answer to questions put to him, however, he categorically insisted that there was no possibility of his having failed to change gloves after he had collected the cigarette butts, and before he had proceeded to collect the items inside the unit.
71 Papeneux acknowledged that he could not recall the specific order in which he collected each of the items. When asked to say what he would have done in accordance with his general practice, he said he would have
put on a new pair of gloves, wearing a mask, take the bag, put the exhibit in it, fold it over and give it back [to McGillivray].
72 Papeneux insisted that he would have changed gloves between handling each individual item, before placing it into the exhibit bag prepared by McGillivray. When asked about the individual cable ties, which had been located next to the grey roll of duct tape in the bathroom, he said that he would have collected and bagged the eight ties together, using the same set of gloves while doing so. He added, however, that he would have changed gloves to collect the roll of duct tape.
73 In cross-examination, however, Papeneux acknowledged that it was possible that he may have collected the cable ties together with the roll of duct tape found in the bathroom. He explained that this was possible because the cable ties and the duct tape had been found next to each other.
74 At 10:50 am, the exhibits from inside the unit having been collected and bagged, a fingerprint examiner, Peter Ashford, attended the scene. He had been called in order to ascertain whether a smudge which appeared on the lid of the recycling bin had any fingerprint value. Ashford concluded that it did not. A swab was then taken of that smudge by Papeneux in order to have it tested for possible DNA. He said that he was wearing a mask and a new set of gloves at the time.
75 Papeneux said that he placed each of the individual crime scene exhibit bags into a single large paper bag. He provided that paper bag to Newman. At 11:10 am, Papeneux took three more photographs of the outside of the unit, from the street.[20] At 11:12 am, he left the crime scene.
76 In his evidence, Papeneux said that the standard protective gear that he would have worn during this process comprised ‘gloves and a mask’. He described his uniform as consisting ‘of cargo pants’. He said that ‘one of the pockets’ would have been ‘just full of gloves.’ He added that one reason for this was that it would allow him to ‘change them between the collection of exhibits’. When asked to elaborate further, he said that this was to ensure against ‘cross-contaminat[ion from] one exhibit to the next.’ He said that he would have obtained clean gloves from his left pocket, and placed used gloves in his right pocket.
77 In cross-examination, Papeneux agreed that he had not included in his witness statement any mention of having worn or changed gloves. Nor had he said that he had worn a mask when collecting the various items that were eventually tested for DNA.
78 The essence of defence counsel’s cross-examination of Papeneux on the subject of contamination is illustrated by the following passage:
MR LEWIS: And so the best that can be done is to give evidence by reference to your general practice?PAPENEUX: That’s correct.
MR LEWIS: And the best that you can say is, ‘Well, if I followed my general practice this is what happened’?
PAPENEUX: Yes.
79 When asked specifically whether he was certain that he had followed his usual practice when examining this particular crime scene, Papeneux said that he did not ‘specifically remember but it’s a practice that [he] adhere[d] to.’
80 Further, defence counsel suggested that it was possible that Papeneux could have obtained gloves from his right pocket (where he placed the used gloves), instead of his left. Papeneux, however, firmly stated that he would have realised if he had done any such thing. That was because he always folded used gloves together in such a manner that they came out in a bundle. He said that if he had ‘pulled one of them out [he] would know.’
Applicant’s submissions
Ground 1: the unsafe and unsatisfactory ground
81 As indicated, the applicant’s overall submission in support of this ground was that the jury had not been entitled to find, to the requisite standard, that he was the offender. Another way of putting that submission was that the jury could not have excluded the possibility that someone other than the applicant had committed these offences.
82 In further support of that submission, counsel relied upon a body of evidence which, he submitted, pointed to someone other than the applicant having been the offender. As previously indicated, this included the evidence led at trial that the applicant had never been married, and therefore would not have worn a wedding ring.
83 Counsel also pointed to certain evidence regarding two persons of interest, designated person of interest 8, and person of interest 142. The former was a sex offender who was well known to police, and had a history of breaking into houses. Indeed, he was characterised as a high risk offender. He lived within about a 10 minute drive from Ms Belmont’s home. He was described as Caucasian, about 178 centimetres tall (equating to 5’8”), of medium build, with black hair and green eyes. He was known by police to assault his victims by bashing them to the head, and rendering them unconscious.
84 In 2007, person of interest 142 lived in the same suburb as Ms Belmont. At that time, he was known to have been in possession of a black balaclava. He was also understood to wander the streets at night wearing gloves. He was described as young, Caucasian, with fair hair and tattoos on his forearms. He had a slight potbelly. He spoke with an Australian accent and was a smoker. He wore glasses, but had also worn contact lenses in the past. He was married and had been heard to say that he understood why men committed rapes.
85 With regard to the DNA evidence, counsel observed that the DNA sample taken from the right hip region of Ms Belmont’s tracksuit pants had returned a partial profile from at least two contributors. Further, as previously noted, a sample taken from her right wrist returned a mixed profile, also from at least two contributors. Counsel noted that the applicant had been excluded from being a contributor to both profiles. It was submitted that this strongly suggested that whoever the person was who committed these offences, it was not the applicant.
86 Further, during oral argument before this Court, counsel submitted that the other contributor to the mixed DNA profiles detected on Ms Belmont’s wrist, and on the outside of her tracksuit pants, could well have been the actual intruder. He submitted that there had to be a reasonable possibility that the intruder’s DNA would have formed part of the mixed DNA sample found on the tracksuit pants. That was because the intruder had clearly handled those pants when he pulled them down, and obviously again when he pulled them back up while Ms Belmont was unconscious. Counsel insisted that, although the intruder was said by Ms Belmont to have worn gloves, it was still possible that his DNA might, somehow, have been deposited on her tracksuit pants and wrist.
87 Counsel also sought, in a limited way, to attack the reliability of the evidence regarding items 5A-1 and 5B-1 (the two cigarette butts). In that regard, he noted that Ms Scott had not compared the DNA reference samples obtained from persons of interest 8 and 142 against the profiles from the blindfold and the cable ties. Indeed, Ms Scott had conceded that her comparison of each of the reference samples provided by the persons of interest had not addressed the question whether any of those reference samples were, or were not, excluded as contributors to the profiles detected on the blindfold, the cable ties, and the sample taken from Ms Belmont’s wrist. Furthermore, the reference samples provided by persons of interest 8 and 142 had both been destroyed after they had been compared with the DNA samples from the cigarette butts.
88 Counsel submitted that it was self-evident that the items taken from inside the unit would have had significantly greater probative value, in terms of incriminating the offender, than would the cigarette butts. He also submitted that the process of comparing the reference samples against the items located within the unit had been unsatisfactory. None of these persons of interest had been excluded as contributors to any of the items found inside the unit. That left open the reasonable possibility that any one, or other, of those male persons was the true offender.
89 During oral argument, counsel was asked whether, in the course of the trial, he had led any expert evidence to suggest that Ms Scott’s method of dealing with the reference samples had been inappropriate. He acknowledged that he had not done so. He submitted nonetheless that Ms Scott had failed to carry out her responsibilities appropriately in that regard. That was because the general issue of possible contamination had been raised throughout the trial.
90 When the Court reminded counsel that Ms Scott could not have been alive to the possibility of contamination when she analysed the samples, counsel responded that this was nevertheless a matter that must have raised a reasonable doubt in the minds of the jury as to the issue of identification.
91 With regard to the prospect of contamination, it was submitted that although the jury may well have been satisfied that the applicant’s DNA had been found on the blindfold and cable ties, there was still a separate question as to whether the DNA had found its way onto those items in ‘incriminating circumstances’. Counsel relied upon Papeneux’s failures to adhere to his usual practice as support for his contention that the possibility of contamination between the cigarette butts and the items found in the unit could not be excluded.
92 More specifically, counsel raised many of the same points that he had pressed before the jury at trial. These included Papeneux’s apparent lack of experience as a crime scene officer, his inability to recall matters of detail, and the fact that he had, undoubtedly, departed, on occasion, from his usual practice at this crime scene. For example, Papeneux had not followed his normal practice of taking all the photographs first before collecting and bagging exhibits. Papeneux had also been wrong about having stapled the exhibit bags closed, when it was clear that he had not done so, but merely folded them over.
93 These matters were said, in combination, to support the hypothesis that Papeneux may not have changed gloves, as he claimed, nor bagged the crime scene exhibits in a manner that would have prevented contamination.
Ground 2: the misdirection ground
94 During the her charge to the jury, the judge said:
Although the DNA evidence is not the only evidence relied upon by the prosecution, it’s certainly the most significant part of the prosecution case. Given its importance in this case, you could only convict Mr Tuite if you were satisfied beyond reasonable doubt that the DNA evidence proves that he was the offender. That doesn’t mean you need to be satisfied beyond reasonable doubt as to each and every individual piece of DNA evidence. But you do need to be satisfied beyond reasonable doubt that the DNA evidence proves that Mr Tuite was the offender. Let me drill down a little bit further into that.Before you could convict Mr Tuite you would need to be satisfied beyond reasonable doubt that his DNA was deposited on at least one of the cigarette butts, the blindfold or the cable ties. You don’t need to be satisfied that it was deposited on all the items, but you do need to be satisfied beyond reasonable doubt that his DNA was deposited on at least one of those items. And, and this is a very important point, you would also need to be satisfied that his DNA was deposited on that particular item in incriminating circumstances. And a bit later on in my charge I’m going to explain to you what I mean by incriminating circumstances, but basically that means circumstances that incriminate him in the offence rather through accident or contamination or some sort of process.
95 Her Honour then went on to say:
Also, before you could convict him you would all need to be agreed as to which item or items had Mr Tuite’s DNA on them. It wouldn’t be sufficient if some of you were satisfied his DNA was on this item, and others of you were satisfied it was on that item, you couldn’t add them together and say, ‘Well we’re satisfied as a whole’. For instance, if four of you were satisfied that his DNA was only on the cigarette butts, and four of you were satisfied that it was only on the cable ties and four of you were satisfied it was only on the blindfold for example, you couldn’t add those altogether and say, ‘Between us, 12 of us, we all agree his DNA was on something’. Before you could convict him all 12 of you would have to be satisfied beyond reasonable doubt that his DNA was on the same item as each other. You might be satisfied it’s on more than one item, you might not, that’s a matter for you, but at the very least before you could convict him you’d have to be all satisfied it was on an item and, and this is the important qualification and I’ll keep stressing it, you would have to be satisfied that it was deposited on that item in incriminating circumstances.
96 The judge had previously provided to counsel, in draft, this proposed direction to the jury. Mr Lewis had raised difficulties with the draft, as illustrated by the following exchange:
MR LEWIS: I have a concern, Your Honour. The way it’s framed would, as Your Honour just I think indicated to my friend, allow or permit a verdict, if the jury was unanimous as to the cigarette, Mr Tuite’s DNA on the cigarette butt but not necessarily as to either of the — in incriminating circumstances.HER HONOUR: Yes.
MR LEWIS: Meaning that it was deposited at or about the relevant time and Your Honour goes through the incriminating circumstances, I do understand that. But my concern is that I don’t necessarily see how a jury could convict without concluding beyond reasonable doubt that his DNA also needed to be on one of the items inside. Not necessarily both, but at least one of the items from inside.
HER HONOUR: And the question becomes why? If they accept the prosecution case that his DNA is on the cigarette butts.
MR LEWIS: Yes.
HER HONOUR: The cigarettes were placed in incriminating circumstances. The intruder entered the house through the sliding door, which adds weight, it both adds weight to the incriminating circumstances but it’s also a relevant event in itself to some extent as going to the identity of the offender, being the person who smoked the cigarette butts, plus the description fits your client. It’s not an identification but it fits your client. Why wouldn’t that be sufficient, even if no item had been found inside, why wouldn’t that be sufficient to convict?
MR LEWIS: Well, the circumstances are such in my submission that you have — Your Honour’s put it to me why wouldn’t that be sufficient if that was all it was, but of course can I respond by saying we do have items from inside which need to be considered in the overall context of this question.
...
My respectful submission is that we do have exhibits inside necessarily associated with the crime, the blindfold in particular and the cable ties I think it’s accepted must have been brought in by the offender, then it would be a very odd situation, in the circumstances of this case, to have a verdict or at least allow a verdict without a finding beyond reasonable doubt as to the accused’s DNA on one or both of those items.
HER HONOUR: Save for this: as I’ve gone through and analysed there are very, very, very different criticisms of single source DNA and the adequacy of validation and the two and three person mixtures. It would be utterly logical and not perverse for the jury to be very confident about the single source and to give your client the benefit of the doubt about the ones inside. Not to exclude him, but to say, ‘We can’t be satisfied beyond reasonable doubt’. That would not be perverse. And why should the prosecution not be allowed to say, well, even if you accept that there’s some criticism about the low level two and three person mixtures, it doesn’t detract from the strength of the other evidence. It’s just we don’t get the additional weight of also having you satisfied beyond reasonable doubt of things inside the house. Isn’t that the problem in this particular case because there are quite — it’s not as if this is a case where the quality of the samples outside and inside are the same and it would be illogical for the jury to come to one conclusion on the ones outside and a different conclusion on the ones inside. There would be very good and sound reasons for them to perhaps come to a different view that isn’t consistent with your client’s innocence, it’s just neutral, in a sense, about what’s inside.
97 Returning then to the charge, her Honour directed the jury with regard to what she meant by the term ‘incriminating circumstances’ as follows:
If you were satisfied beyond reasonable doubt that his DNA was found on one or more of those items, then the next thing you would need to consider would be the circumstances in which his DNA came to be on that item. Did it come to be on that item or items in incriminating circumstances consistent with him being the offender? Or did the DNA come to be on the item or items through innocent means, such as by accident or contamination? That’s the part of the case that I’m going to deal with now.I’m going to start with the two cigarette butts from number 34. I’m just going to start by looking at a number of pieces of evidence and arguments about those two cigarette butts that were found on or near the side fence between number 34 and the unit. You’ll remember that they were both Peter Jackson brand.
In his record of interview Mr Tuite admitted to smoking cigarettes. He was asked whether he’d ever smoked Peter Jackson. He said he’d smoked ‘every single cigarette under the sun’.
The prosecution say a number of things about those cigarette butts. First of all they say you can find that the two cigarette butts were deposited very close in time to the offences. The prosecution say that for a number of reasons.
First, they say you should accept that the two butts were both dry but the ground around the crime scene was generally wet. The prosecution says you can infer from that evidence that it must have rained sometime during the night and the two cigarette butts must have been deposited after it rained and close in time to the offences. In support of that argument or that inference the prosecution rely both upon the evidence of Mr Papeneux and the photos that he took, particularly the photos of the ground around the recycling bin in front of the fence just to the left of her garage.
The prosecution also rely upon photos of the two butts. You’ve got a number of the photos of the butts, including some enlarged ones from the crime scene and some photos that were taken at Macleod. Ms Rogers invited you to look at the photos for yourselves and satisfy yourself that the butts don’t appear to be weathered. So irrespective of whether or not it was raining the night before, there’s a separate argument about the fact that the prosecution say those butts don’t appear to be weathered. They don’t look like they've been outside for long. It’s a matter for you.
Now the prosecution also point to other evidence which they say establishes that the cigarette butts were left by the offender in incriminating circumstances, not by accident or fortuitously.
Firstly, the prosecution say you know the butts weren’t deposited by Ms [Belmont] or the neighbours. Ms [Belmont] has never smoked. She’d lived alone at the unit for about three years. She didn’t allow family or friends who visited her to smoke, either inside or outside in the courtyard. You had the evidence from Giovanni Bonica who had lived next door with his wife since 1989. Neither of them smoked. None of their family members smoked when they came to their house. They didn’t have a gardener at the time of the offences.
The prosecution says you can be satisfied the cigarette butts weren’t deposited by Ms [Belmont] or the neighbours.
The prosecution also says the butts containing Mr Tuite’s DNA couldn’t have been deposited at number 34 by accident because of their specific location. Now you’ll remember that Papeneux drew a sketch ... He drew a sketch in July 2014 showing the front garden at number 34 and he took some measurements.
What the sketch and his measurements show is that the cigarette butts were located about 9.6 metres back from the gutter at the front of the property, and Mr Papeneux also estimated that the front yard itself was elevated about 1.8 metres above the nature strip.
Now you’ve also been out on a view. You’ve seen for yourselves where the cigarette butts were found and their respective distances from Ms [Belmont]’s unit and from the street. Obviously some of the garden has changed since 2007 but you’ve got the photo books which show you what the vegetation and the landscaping and so on looked like back in 2007.
Mr Bonica didn’t know or recognise Mr Tuite and he said that Mr Tuite didn’t have any reason to be in his front yard or on his property.
Mr Tuite doesn’t need to explain how the cigarette butts came to be on the front garden at number 34. That’s because he doesn’t need to prove his innocence.
Nevertheless, in his record of interview he said several things about this matter which Ms Rogers took you to in closing address.
... He said he’d have no reason to stand in someone’s front yard and smoke a couple of cigarettes unless he was pissed and on the way home from somewhere or something and sat down to have a smoke.
Mr Tuite was specifically asked in his record of interview whether he could explain how two cigarette butts containing his DNA came to be located at number 34. He gave several possible explanations.
...[21]
But the prosecution say you should reject those possible explanations as, frankly, ridiculous. The prosecution say you can be satisfied that the cigarette butts were not deposited there by accident.
98 In essence, therefore, ground 2 complains that the judge’s direction allowed for the applicant to be convicted on the basis of the DNA evidence, even if the jury was only satisfied that his DNA was on the cigarette butts, and not on the items found within the unit. Counsel submitted that any such finding would be insufficient. The jury could not reasonably have been satisfied, to the requisite degree, of the applicant’s guilt without first being satisfied that his DNA was on the blindfold, or the cable ties, or both. In other words, it was not open to the jury to find that the applicant’s DNA, on the cigarette butts, had come to be there in ‘incriminating circumstances’.
Respondent’s submissions
99 Dealing first with the ‘unsafe and unsatisfactory’ ground, the respondent submitted that once the applicant withdrew his challenge to the reliability of STRmix, and accepted that the jury had been entitled to find that his DNA had been detected on the various items located within the unit, and on the cigarette butts, the case against him was simply overwhelming.
100 The various matters upon which the applicant relied to cast doubt upon his identification as the offender were individually addressed:
101 As regards the misdirection ground, the respondent submitted that the judge’s charge regarding the DNA evidence, and the meaning of ‘incriminating circumstances’ was, if anything, unduly favourable to the applicant.
102 In that regard, s 61 of the Jury Directions Act 2015 made it clear that her Honour was not obliged to direct the jury that they had to be satisfied beyond reasonable doubt, and unanimously, of the applicant’s DNA having been found on one or more of the items located within the unit, or the cigarette butts. Nonetheless, given the particular circumstances of this case, her Honour had been entitled, as a matter of prudence, to give such a direction. That was so, bearing in mind the critical importance of the DNA evidence to the entire prosecution case.
103 Section 61 is in the following terms:
What must be proved beyond reasonable doubtUnless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—
(a) the elements of the offence charged or an alternative offence; and
(b) the absence of any relevant defence.
Notes
ExamplesThe trial judge may relate the evidence in the trial to directions under section 61 in many different ways, for example—
104 Plainly, the element that was in issue in this trial was identification. The evidence relied on by the prosecution to prove that element was largely, if not exclusively, the DNA evidence. The judge, therefore, had been entitled to direct the jury in accordance with the first of the two examples provided above, despite that evidence being of a fact that would otherwise not have to be proved beyond reasonable doubt, when considered on its own.
Conclusion
105 As previously indicated, once the applicant acknowledged that it had been open to the jury to find that his DNA was on one or more of the blindfold, cable ties, and cigarette butts, this entire case took on a completely different complexion.
106 The only answer that could sensibly be proffered to the evidence showing that the applicant’s DNA was on the items located within the unit was the possibility of contamination. The fact that there were mixed DNA profiles found on those items in no way assisted the applicant in explaining how his DNA could have been detected on those incriminating items central to this case.
107 The jury was entitled, in our view, to accept Papeneux as a credible and reliable witness, and to exclude the possibility of contamination. They were entitled to reject the suggestions put to him in cross-examination that he may have omitted to change gloves between handling the items found within, and outside, the unit. If they were satisfied that Papeneux had complied with his training, and had exercised care to avoid any possible contamination, that was effectively an end to the defence case. There was simply no other hypothesis consistent with innocence which would explain how the applicant’s DNA found its way onto the blindfold and the cable ties.
108 Much the same can be said of the applicant’s DNA having been found on the cigarette butts. Had that been the only DNA evidence adduced at the trial, it would have been quite sufficient to enable the jury to find him guilty. The inference was irresistible that those cigarette butts were connected to the offender, who had stood for a time smoking while looking over the fence into Ms Belmont’s courtyard, awaiting her return.
109 The jury was entitled to reject as fanciful the explanations proffered for the applicant’s DNA having found its way onto the cigarette butts, and those butts having found their way into Mr Bonica’s garden and onto his fence. There was, in our view, nothing unsafe and unsatisfactory about this verdict. In truth, once the DNA was accepted as reliable, the case was over.
110 As for ground 2, we agree with the respondent’s submission that, if anything, the judge’s charge was favourable to the applicant. The jury was told that they had to agree, unanimously, that the applicant’s DNA was on one or more of the blindfold, the cable ties, or the cigarette butts. They had to agree, unanimously, as to which of those items contained his DNA. That was more than sufficient to ensure that they focused upon the true nature of the prosecution case.
111 Plainly, by its verdict, the jury accepted the evidence of the prosecution experts as to the reliability of STRmix. They preferred that evidence to that of the defence witnesses, which they were well entitled to do. At that stage, the case was, for all practical purposes, over.
112 We cannot leave our consideration of this matter without expressing our concern about the way in which the DNA evidence was presented to the jury in this case. As we have said, the level of detail, and the sheer complexity of the scientific material put before them, was quite extraordinary.
113 In an ordinary case, the DNA evidence would have taken up far less time, because the expert witness would only have needed to inform the jury of the relevant likelihood ratios, and to provide a basic explanation of what they meant. Even then, as this Court pointed out earlier in the year in Vyater v The Queen,[23] care is required to ensure that the language used is as simple and comprehensible as possible.[24] All a jury needs to know is what the statistical results are, and what they do (and do not) tend to prove. They do not need to understand the underlying science of DNA profiling.
114 In this extraordinary case, however, the course adopted by the defence at trial resulted in the jury spending many days listening to expert evidence which, it was evidently thought, would enable them to make a meaningful assessment of the (un)reliability of highly technical software programs. Jurors bring very great capabilities to their task, and their conscientiousness is well-recognised. It is equally well understood, however, that juries are not equipped — and cannot be expected — to evaluate complex scientific evidence. That is why it is so important that the trial judge can perform the role of gatekeeper in resolving issues of scientific reliability at the threshold.[25] As we have pointed out, Emerton J had already performed that task for the purposes of this case.
115 It is a matter of great concern that these criminal proceedings should have occupied such an extraordinary amount of court time, at such enormous public expense. As the trial judge noted in her sentencing remarks, more than four weeks of sitting days, spanning some three months, were spent arguing reliability and other evidentiary matters before Emerton J, and there were two further days of evidentiary argument before the trial judge herself. The first trial ran for seven weeks, before having to be aborted due to the conduct of the applicant’s previous counsel.[26] The second trial ran for more than nine weeks before the jury were sent out to begin their deliberations. Nearly six of those nine weeks were taken up with the examination and cross-examination of the expert witnesses.
116 For a case concerning a single incident of offending, with a very limited factual compass, these figures are simply astonishing. It is, of course, critical to the integrity of the criminal justice system that forensic evidence be tested according to rigorous reliability standards. It is not in doubt that successive defence counsel were acting conscientiously in pursuit of what they assessed to be the applicant’s best interests. It is, however, incumbent on the parties to a reliability challenge such as was mounted in this case to impose appropriate limits on the resources devoted to the task.
117 Such limits are essential not least because of the need for the scarce resources of the criminal justice system to be available for similar challenges in other fields of forensic science, where the scrutiny of evidentiary reliability has been much less intense than it has been in relation to DNA evidence.[27] As the Court of Criminal
117 Appeal said in R v Wilson and Grimwade:[28]
Whether the cost of legal representation be privately or publicly borne, counsel are to understand that they are exercising a privilege as well as fulfilling a duty in appearing in a court of law.[29]
118 For these reasons, leave to appeal must be refused on both grounds.
[1] See generally, DPP v Tuite [2019] VSC 159.
[2] We shall refer to this as the ‘unsafe and unsatisfactory ground’.
[3] We shall refer to this as the ‘misdirection ground’.
[4] A pseudonym.
[5] STRmix is an abbreviation of ‘Short Tandem Repeat Mix’.
[6] Tuite v The Queen [2015] VSCA 148; (2015) 49 VR 196, 198–9 [4], 201 [18]; [2015] VSCA 148 (‘Tuite [No 1]’).
[7] Ibid 198 [3].
[8] In this case, the likelihood ratio calculated the probability that the DNA evidence observed in the profile originated from the applicant, rather than another person chosen at random from the Australian Caucasian population.
[9] One thousand trillion.
[10] DPP v Tuite [2014] VSC 662, [42].
[11] Tuite [No 1] [2015] VSCA 148; (2015) 49 VR 196, on appeal from DPP v Tuite [2014] VSC 662.
[12] Tuite v The Queen [No 2] [2015] VSCA 180, on appeal from DPP v Tuite [2015] VSC 303.
[13] Chris Maxwell, ‘Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Role of the Trial Judge as Gatekeeper’ (2019) 93 Australian Law Journal 642, 642-3.
[14] Kaye N Ballantyne and Linzi Wilson-Wilde, ‘Assessing the reliability and validity of forensic science — an industry perspective’ (2020) 52 Australian Journal of Forensic Sciences 275, 276.
[15] He had, therefore, been a crime scene officer for some three years at the time he came to examine the crime scene in the present matter.
[16] In cross-examination, Papeneux agreed that he did not have an independent recollection of whether Porter had also participated in the ‘walk through’.
[17] Photographs 1–68 of Photobook 2 (Exhibit 7).
[18] Photographs 69–71 of Photobook 2 (Exhibit 7).
[19] In cross-examination, Papeneux agreed that his standard practice had been to staple the crime scene exhibit bags closed. He also agreed, however, that he must have closed the bag containing the cigarette tip found in Ms Belmont’s courtyard, and the bags containing the cigarette butts, by folding over the top of the bag.
[20] Photographs 89–91 of Photobook 2 (Exhibit 7).
[21] There then followed the various answers that the applicant gave to police regarding this matter in his record of interview, to which we have previously referred at [33].
[22] Jury Directions Act 2015 s 61.
[24] See also, Mark Weinberg, ‘Juries, Judges, and Junk Science — Expert Evidence on Trial’ (Symposium Paper — Australian Academy of Science and Australian Academy of Law Joint Symposium, 19 August 2020).
[25] See further, Chris Maxwell, ‘Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Role of the Trial Judge as Gatekeeper’ (2019) 93 Australian Law Journal 642.
[26] Sentencing remarks [2019] VSC 159, [39].
[27] The 2009 NAS Report (US) found that ‘with the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source’. National Research Council, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, 2009), 7 (‘NAS Report’).
[28] [1995] VicRp 11; [1995] 1 VR 163.
[29] Ibid 179–80.
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