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Court of Criminal Appeal 12 December 2001

REGINA v GALLI

[2001] NSWCCA 504

Also reported as (2001) 127 A Crim R 493
Sexual offences
CRIMINAL LAW DNA EVIDENCE PATERNITY INDEX RELATIVE CHANCE OF PATERNITY "PROSECUTOR'S FALLACY" CRIMINAL LAW

Citation: Regina v Galli [2001] NSWCCA 504
Court: NSW Court of Criminal Appeal
Date: 12 December 2001
Judges: Spigelman CJ, Sully J, Adams J

Background

The appellant was convicted by a jury in the District Court of aggravated sexual intercourse without consent, contrary to section 61J of the Crimes Act 1900. The victim, a 26-year-old woman with a serious intellectual disability who could not communicate verbally, lived in a DOCS-operated group home where the appellant worked as a carer. The offence came to light only after the victim was found to be pregnant.

The Crown case was entirely circumstantial. A central plank of the prosecution's case was DNA evidence given by a forensic biologist, which connected the appellant to the paternity of the aborted foetus. Only five men had access to the victim during the relevant period; two were excluded by DNA testing, and two others were disabled residents of the home with significant physical limitations.

The appellant challenged the conviction on the grounds that references to DNA statistics in his record of interview were wrongly admitted, that the trial judge gave inadequate and erroneous directions on the DNA evidence, and that the directions on circumstantial evidence were flawed. He also sought leave to appeal against his sentence of seven years imprisonment with a non-parole period of five years and three months.

  • Whether references in the appellant's record of interview to the "Relative Chance of Paternity" were admissible
  • Whether the trial judge erred in failing to direct the jury on how to approach DNA statistics
  • Whether the trial judge committed the "Prosecutor's Fallacy" in the summing-up, or failed to warn the jury against that reasoning
  • Whether the trial judge erred by referring to the "Relative Chance of Paternity" in the summing-up when no such evidence had been placed before the jury
  • Whether the directions on circumstantial evidence improperly reversed the onus of proof
  • Whether errors in the trial, even if established, were of sufficient consequence to warrant setting aside the conviction, or whether the proviso under section 6(1) of the Criminal Appeal Act 1912 should be applied
  • Whether the sentence was within the proper range

Decision

Admissibility of the DNA references. The Court held that the references in the second record of interview to the "Relative Chance of Paternity" were inadmissible. No objection had been taken at trial, but the Court granted leave under the relevant rule to raise the point on appeal.

Directions on DNA statistics. The trial judge did not err as a matter of law by failing to direct the jury on how to approach the statistics within the DNA evidence, though the Court noted it would have been desirable to do so. On the "Prosecutor's Fallacy" (the impermissible reasoning that because the DNA matches the accused, the accused must be guilty), the Court found the trial judge had not himself committed this error. However, it would have been desirable for a specific warning to be given to the jury against that form of reasoning. Separately, the trial judge did err by referring in the summing-up to the "Relative Chance of Paternity," a figure that had not in fact been placed before the jury as evidence and which was in any case inadmissible.

Circumstantial evidence directions. The Court found no reversal of the onus of proof in the trial judge's handling of circumstantial evidence. The Crown's burden was correctly referenced on multiple occasions throughout the summing-up.

Application of the proviso. The Court found that the errors were not so fundamental as to mean there was "hardly a trial at all." Applying the proviso, the Court concluded that given the extreme restriction on the number of people who could have committed the offence, and the unchallenged strength of the Paternity Index evidence, a conviction was inevitable. The appellant had not lost a real chance of acquittal, and the proviso was applied accordingly.

Sentence. The Court found no appellable error. The objective seriousness of the offence was high, the maximum penalty was 20 years, and the sentence of seven years with the non-parole period imposed was within the legitimate range. The sentencing judge had properly considered the subjective circumstances, including the appellant's age, character, and rehabilitation prospects.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • References to the "Relative Chance of Paternity" in a record of interview are inadmissible, and a trial judge similarly errs by referring to that statistic in a summing-up when it was not before the jury as evidence.
  • While it is desirable for trial judges to direct juries on how to reason about DNA statistics and to warn against the "Prosecutor's Fallacy," the Court of Criminal Appeal confirmed that failure to give such directions does not automatically constitute an error of law or a miscarriage of justice.
  • The "Prosecutor's Fallacy" refers to the impermissible step of treating a DNA match as proof of guilt, rather than as one piece of statistical evidence to be weighed alongside all other circumstances.
  • In dismissing the conviction appeal, the Court applied the proviso under section 6(1) of the Criminal Appeal Act 1912, finding that where the pool of potential perpetrators is exceptionally narrow and the DNA Paternity Index evidence is unchallenged and powerful, a conviction is inevitable notwithstanding errors at trial.
  • The proviso analysis is highly fact-specific: the Court's reasoning turned critically on the unusual combination of the victim's circumstances, the limited number of people with access to her, and the particular strength of the untainted DNA evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)

Cases
- Wilde v The Queen (1988) 164 CLR 365
- Glennon v The Queen (1993-1994) 179 CLR 1
- Green v The Queen (1996-1997) 191 CLR 334
- Gilbert v The Queen (2000) 201 CLR 414
- KRM v The Queen (2001) 75 ALJR 550; [2001] HCA 11
- Grey v The Queen [2001] HCA 65
- R v GK [2001] NSWCCA 413
- R v Dohney and Adams [1997] 1 CrAppR 369
- R v Adams [1996] 2 CrAppR 467
- R v Milat (1996) 87 ACrimR 446
- R v Duke (1979) 1 ACrimR 39
- R v Lisoff [1999] NSWCCA 364
- R v Pantoja (1996) 88 ACrimR 554
- R v Karger [2001] SASC 264
- Errey v The Queen [2001] WASCA 75
- Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
- R v Taylor (NSWCCA, 18 April 1995, unreported)