The Queen v Templer [2003] NZCA 85; (2003) 20 CRNZ 181 (30 May 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA388/02THE QUEEN

v

DOUGLAS JOHN TEMPLER

Hearing: 21 May 2003

Coram: McGrath J Laurenson J Doogue J

Appearances: J Ablett-Kerr & SA Saunderson-Warner for Templer
JC Pike for Crown

Judgment: 30 May 2003

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J.

Introduction

[1] The appellant was convicted on one charge of sexual violation by rape in the High Court at Dunedin on 8 July 1999, after having been found guilty by a jury.
[2] A jury, in an earlier trial on 14 and 15 June 1999, had been unable to reach agreement.
[3] He was sentenced to nine years’ imprisonment on 16 July 1999. He appeals against conviction and sentence having obtained leave to appeal under s15 of the Crimes (Criminal Appeals) Amendment Act 2001.

Background

[4] The victim was a severely disabled person who had been a client of a number of IHC homes for the past 20 years.. Her condition was such that she was unable to give evidence at trial. On 17 September 1997 the victim was found, by a staff member, to be in the course of having a miscarriage. The foetus was dead and estimated to have been gestating for 19 to 20 weeks.
[5] The Police were advised. The ensuing investigation revealed that the appellant had had, by reason of his dealings and nursing relationship with the victim during a period covering the probable conception date, the opportunity to have had intercourse with the victim.
[6] The principal evidence against the appellant was the evidence of an ESR forensic scientist Ms Melia. She carried out a DNA typing procedure which included DNA samples obtained from items owned and used by the appellant. The resulting tests positively excluded all other caucasian male persons who could possibly have had intercourse with the victim. In the case of the appellant Ms Melia gave evidence at the first trial that the results obtained established it was 5,095 times more likely that the appellant was the father than another unrelated male selected at random from the New Zealand caucasian population. In her opinion the result strongly supported the proposition that the appellant was the father of the victim’s foetus.
[7] Prior to the second trial Ms Melia forwarded the DNA samples examined by her, and in respect of which she had examined eight regions, to an independent analyst, Dr Stapleton. Dr Stapleton was asked to examine and compare separate regions to the eight already examined by Ms Melia. A further six regions were identified by Dr Stapleton which provided a match between the father of the foetus and the appellant. By combining the likelihood ratios provided by the matches in the first eight regions, and the additional six examined by Dr Stapleton, a final likelihood ratio figure of two million times was obtained.
[8] Ms Melia had been involved in DNA testing since it was first introduced to New Zealand in 1988. The first ratio of 5,095 was, at the point when this was concluded, the highest ratio she had obtained. The second of 2,000,000 was not only the highest likelihood ratio she had been associated with, but to her knowledge the highest obtained by other scientists in criminal paternity cases in New Zealand. The jury in the second trial obviously accepted this evidence when finding the accused guilty.
[9] The appellant had attacked the reliability of this evidence by reference to two unconnected cases which had recently received publicity. The first related to a DNA analysis by the ESR which at first sight indicated that a particular individual could not be excluded as having been implicated in two separate crimes, when other evidence conclusively proved to the contrary. The two crimes had the Police codenames PAD and REX. The second related to a person, Howse, who had been excluded in 1996 from having been criminally involved in a crime, whereas some years later, and with the benefit of improved methods, it was shown that the chances of him not being involved were, in sensible terms, almost impossible.
[10] The first matter had been the subject of both internal enquiries with ESR and external enquiries. These had been unable to identify how the situation had arisen. A ministerial enquiry was undertaken by Sir Thomas Eichelbaum and Sir John Scott. They reported, on 30 November 1999, after the present trial had been completed.
[11] So far as this case is concerned the two most relevant findings in the report were:

“1.7 As with the previous investigations, this Inquiry has not found any conclusive answer. There are several possible explanations, as discussed in the following Report. However, on the balance of probabilities this Inquiry concludes that the anomalous results were caused by accidental contamination of the Pad and Rex samples while undergoing one of the early stages of processing in the ESR biology laboratory at Mt Albert.

1.8 While any such event is unfortunate, the implications of a finding of accidental contamination should not be exaggerated. As pointed out in the Report, there is nothing novel in accidental contamination, which is a constant hazard in DNA laboratories. Generally, anomalous findings resulting from contamination would be quickly apparent. In the present case N was never in jeopardy of being charged in connection with the Rex and Pad homicides, let alone convicted. The event ought not to be regarded as casting doubt on the efficacy of DNA testing as an investigative tool.”

The Grounds of Appeal

[12] The appellant submitted that his conviction amounted to a miscarriage of justice for three reasons:

1. The jury was given misleading and incorrect information in relation to the primary defence in the case, namely that the DNA evidence was unreliable;
2. Evidence that a Dr Cropp had been engaged by the defence and had access to the ESR file for checking should not have been before the jury;

100. Evidence that the examinations and conclusions presented in evidence by Ms Melia had been subjected to peer review should not have been before the jury.

We refer to each in turn.

Misleading and Incorrect Information

[13] The evidence of Ms Melia alleged to be misleading and incorrect was recorded at pp.56 and 57 of the notes of evidence as follows:

“ ... I am aware that recently in the media it has been suggested that there have been cases where the ESR has made errors in relation to DNA analysis. I am not aware of errors made.

In the media it was suggested in relation to a homicide case in Wellington that the ESR had made an error in that it had analysed DNA, the results of which pointed the finger at a Christchurch man who was known by the police not to have been involved in the Wellington offence. It is correct that another person was found to have the same DNA at the sites that we examined. It is not true to say that the finger was pointed at this person. This person was not considered by police to be a suspect and came to our notice because of a completely separate case. Therefore we were not saying that this person could have donated this particular DNA. Once again we were talking about likelihood ratios and it appears that this person coincidentally matched blood left at the crime scene, but this person was not to my knowledge ever a suspect in that case. In that case a person in Wellington was charged with the crime. And that person had confessed to the crime. But there was a crime scene sample that the police couldn’t identify or associate with that offender. There was a blood sample and when this blood was typed it didn’t match the individuals from whom we had reference samples in this case and this is not an uncommon situation for forensic cases, in fact I would go as far as to say that it is quite usual for us when we group sometimes 20 to 100 blood samples or other types of body fluid samples that we obtain what we call a result from an unknown male or female which is presumed to be unrelated to the case that we are observing.

More recently there was a media report in relation to a man named Howse where it was said that the first result of DNA testing excluded him from the offence alleged, rape on a 16 yr old girl, yet later testing done by the ESR showed that there was a 30,000 million to one certainty that he was involved. The test that was used in 96 gave a mixed result when semen from a pair of underpants was typed. When I say the test in 96 I mean the test relating to Mr Howse in 96. Now given the circumstances which the scientist was presented with at the time and given the strength of the result that was obtained a call was made that the result should be described as an exclusion. The result showed DNA from most probably two people; one lot of DNA was present in greater excess compared with the other DNA. The minor components were so weak and the result so fuzzy that it would have been inappropriate to even suggest that this DNA matched the DNA from Mr Howse, this is again what I refer to as a conservative approach. We have clear guidelines as to when we can report results and when results are very unclear we have to err in favour of the defendant. In that particular case as a result of the weak indication the scientist (found) that Mr Howse was excluded.”

[14] In view of the findings in the Report, submitted after the trial, referred to in paragraph [14], the appellant’s counsel submitted, without alleging any lack of bona fides on Ms Melia’s part, in fact there were cases where there was a probability errors had occurred in relation to DNA analysis carried out by the ESR.
[15] Whilst the conclusions in the Report were not known at the time, it was submitted that it is unrealistic to now ignore this fact. This was particularly so because of the attention drawn to the issue by the trial Judge when he said in his summing up:

“Now, in this particular case the results that were referred to the scientists have led to a conclusion that the likelihood of obtaining the combined DNA results is at least two million times greater if Mr Templer was the father of the foetus, rather than if another unrelated man selected at random from the N.Z. Caucasian population was the father. Previously the ESR had calculated that as one in five thousand and ninety five, and that was evidence presented at the last trial. Since then they have obtained access to the private testing facilities and data base of a company known as DNA Diagnostics, so you heard additional DNA evidence from Dr Stapleton. And because of that combined data base the result is now two million to one. Ms Melia gave you evidence that that is the highest that she has known in her time testing DNA in New Zealand, which goes back I think, from memory, 11 years. She says the normal range is between 50 and 500. Dr Stapleton’s evidence was to the effect that DNA evidence very strongly supports the putative father or the biological father, when the statistic paternity index is over 1000. Mr Pringle says to you it is not conclusive. He points to the two Wellington cases and suggests to you that mistakes have been made, or they are at least possible, that you just shouldn’t blindly accept this evidence. Mr Garland, however, says that you can accept it, and it is extremely remote chance if someone else was responsible because of the rarity of DNA material found in both the foetus and the accused, that he also had physical access to her, that it is clear he had a good rapport and had her trust, and that he had opportunity to spend time alone with her. That when you compare those factors, along with the DNA results, and consider the other males in the pool of sufficient age, then it is extremely unlikely, he says, that anyone else could be the father.

The defence have essentially suggested to you that there may be errors in this DNA, and you will recall Mr Pringle’s reasons for that, and mostly it relates to those two publicised Wellington cases.”

[16] Stated shortly the appellant’s counsel urged that the issue as to the reliability of the DNA analysis was so fundamental to this case that the appeal should be allowed to enable the issue to be dealt with in great detail and in the light of, and with, the assistance from the Report.
[17] When considering this submission it is important to note how the issue of alleged error, namely contamination, might be relevant in this case. Counsel for the appellant conceded that the sample obtained from the appellant could not be regarded as suspect. However, it was submitted that there was a possibility that the appellant’s sample could have contaminated the samples taken from the foetus which provided the father’s DNA profiles. This remained a possibility because when the further examination was carried out by Dr Stapleton the same samples were used. In other words, if the samples providing the father’s DNA profiles had been contaminated in the first place, then this contamination remained.
[18] Counsel for the Crown submitted that as a matter of fact this simply was not a possibility. In particular the point was made that if contamination had occurred this necessarily meant that the profile of the actual father would still have been apparent in the subsequent matching exercise. There was no such evidence. Ms Melia had referred to this aspect in her evidence and negated it. She said:

“In this case it is a different situation. We are looking at paternity where we have found DNA which must have come from the father, which could only have come from Mr Templer, and was not present in any of the other men I examined. So this case isn’t complicated by circumstances, the DNA isn’t a mixture from more than one person, and the results are straightforward in their interpretation.”

[19] Dr Stapleton was not questioned on this topic but if she had found DNA other than that consistent with the appellant it is inconceivable she would not have said so.
[20] We accept the Crown submission. The evidence as to the DNA testing was such that it could not be said to be subject to any reasonable doubt. No issue of possible contamination arises. Accordingly we find that for the purposes of s.385 of the Crimes Act 1961 this head of appeal does not provide any ground for finding there was a miscarriage of justice.

Evidence Relating to Dr Cropp

[21] Prior to the second trial the defence requested that Ms Melia and Dr Stapleton provide copies of their files regarding this case to an independent scientist, Dr P. Cropp, to enable him to examine and check their work. Included amongst the material provided to Dr Cropp were quality control papers setting out the work done by Ms Melia and all documents relating to positive and negative controls which had been documented at each step where these were applied in the tests. Dr Cropp carried out this examination, at least some of which was done with the assistance of Ms Melia at the ESR premises in Auckland.
[22] Significantly, when the matter came to trial Dr Cropp was not called to give evidence on behalf of the appellant.
[23] The Crown, knowing that the reliability of the DNA testing was to be one of the principal matters in dispute, adduced evidence as to Dr Cropp’s involvement during the course of the evidence-in-chief of both of the two scientific witnesses. When summing up the Judge referred to this evidence as follows:

“Now, in considering that DNA evidence, members of the Jury, you can bear in mind the evidence of Ms Melia and Dr Stapleton that all the material they had was freely made available to a Mr Cropp, a former ESR scientist, now working privately, who had been instructed by the defence to carry out independent tests. So you are perfectly entitled to bear that fact in mind when you consider the accuracy, or otherwise, of Ms Melia’s evidence and Dr Stapleton’s evidence.”

[24] At the conclusion of his summing up defence counsel requested that it be made clear that the material supplied to Dr Cropp was for checking and not for him to carry out further tests. The Judge agreed and after recalling the jury gave the following direction:

“Members of the Jury, I am sorry to bring you so quickly, but Mr Pringle has pointed out that I said to you apparently that the file was made available for the independent scientist appointed by the accused, Mr Cropp, to carry out further tests. He’s pointed out that Mrs Melia’s evidence was to the effect that that file was made freely available for checks to be carried out by Mr Cropp, and, indeed, you will recall the evidence that he spent, I think, most of an afternoon and the next morning on the first occasion, and on the second occasion all of the material available to Mrs Melia and Dr Stapleton was couriered to him so he could check as opposed to test. Thank you.”

[25] In relation to this evidence and the directions given, the appellant submitted that the evidence was inadmissible because the evidence sought to draw a conclusion by implication that Dr Cropp had concluded the Crown evidence could not be challenged. This in effect amounted to hearsay by implication. As such it was not admissible, it not coming within any exception to the rule against hearsay.
[26] Furthermore, the inference relied on by the Crown was not one which was necessarily correct in that the failure to call Dr Cropp could have been attributable to reasons other than the fact that his evidence did not assist the appellant.
[27] The admission of such evidence could also be attacked on the ground that it was contrary to public policy to discourage the employment of experts by the defence if it was known that the failure to later call the witness could provide the basis for comment by the Crown.
[28] We consider that each of these objections are well made. In the present case the nature of the summing up served to compound the prejudicial effect of the evidence.
[29] We have accordingly concluded that the admission of the evidence in question did amount to a wrong decision on a question of law.

Evidence as to Peer Review

[30] Ms Melia in her evidence said:

“After carrying out tests, analysis and calculations, there is checks done on the accuracy of my work. Calculations are peer checked by another scientist and my whole file and statement is reviewed by a second scientist and then the statement and file are once again checked by a third scientist before the statement is signed out.”

Counsel for the appellant submitted that once again this evidence involved an inference that the persons engaged in the peer review process had all been satisfied with the process they were reviewing. As such this again amounted to the adducing of hearsay evidence by implication. The defence submitted that quite apart from this evidential objection there was the very practical concern that if the defence sought to attack the reliability of the process the members of the Peer Review Team should be available as a matter of course for cross-examination.

[31] We were referred to R v Mokaraka [2000] 1 NZLR 793 CA where a similar objection in relation to the peer review of a fingerprint expert was considered. At paragraphs [40] and [42] the Court said:

“[40] We accept Mr Borich’s submission that the “peer review” evidence was hearsay. There could have been no purpose in adverting to the fact that three other scientists had checked the identifications made by the witness other than to imply that they supported her conclusions. It is disingenuous to suggest that such evidence is not hearsay. Evidence is no less hearsay when the assertion by the absent speaker is implied rather than expressed.

[41] ...

[42] In the present case we are satisfied that no miscarriage of justice could have been caused by this evidence, technically admissible or not. The Judge made it abundantly clear that the jury was to confine its attention to the observations and opinions of the expert who actually gave the evidence. Further Mr Mokaraka did not seriously dispute the presence of his prints in the house. He sought to explain them by referring to an earlier burglary of the same house. This ground of appeal fails.”

[32] In the present case no direction as in Mokaraka was given by the Judge. In our view the question of whether or not an exception to the hearsay exclusionary rule should be formulated in the future will depend on the promulgation of rules which will provide an appropriate protection to an accused if such evidence is to be called without the members of the Peer Review Team being called to give evidence. That point has not yet been reached. Accordingly we conclude that in the present case the admission of the evidence in question did amount to a wrong decision on a question of law.
[33] Having decided that the trial process in this case was tainted in the two respects we have referred to, we nevertheless are of the view that the proviso to s.385 of the Crimes Act should be applied because no substantial miscarriage of justice has actually occurred.
[34] The evidence of identification provided by the DNA evidence at the trial was so compelling that no possible miscarriage of justice has occurred. We should also note that there was no objection by trial counsel to the evidence now challenged.

Result

[35] The appeal is accordingly dismissed.

Solicitors: Crown Law Office, Wellington