Citation: Regina v Wakefield [2004] NSWCCA 288
Court: Court of Criminal Appeal, New South Wales
Date: 20 August 2004
Judge(s): Hodgson JA; Hulme J; Smart AJ
Background
The appellant was convicted in the District Court of aggravated robbery, the aggravating circumstance being the infliction of actual bodily harm on an elderly complainant. The offence occurred at a shopping centre car park lift, where the complainant was punched repeatedly and her handbag stolen. It was not disputed at trial that the robbery and assault occurred. The sole contest was identity: whether the appellant was the man responsible.
The Crown's case rested substantially on DNA evidence. A handkerchief found on the floor of the lift, which the Crown alleged the offender had dropped, contained a DNA profile matching the appellant. The profile was described as extremely rare. The appellant's defence at trial centred entirely on the possibility that the handkerchief had been contaminated, either in the lift, through the handling process, or at the police station.
On appeal, the appellant sought to raise a new ground: that DNA evidence had been presented and discussed at trial in a manner that amounted to the "Prosecutor's Fallacy," an error in statistical reasoning whereby the rarity of a DNA profile is incorrectly treated as equivalent to the probability of guilt. This ground had not been raised at trial.
Legal Issues
- Whether the trial judge's directions on DNA evidence were adequate and correctly framed
- Whether DNA evidence had been presented using the "Prosecutor's Fallacy" during the Crown's opening and throughout the trial
- Whether leave should be granted under Rule 4 of the Criminal Appeal Rules to raise a ground of appeal not taken at trial
- Whether any error identified in the treatment of DNA evidence, if established, would have affected the outcome
Decision
The Court found that DNA evidence had been discussed at trial with a lack of precision, and that language consistent with the Prosecutor's Fallacy appeared from as early as the Crown's opening address. Hulme J noted these errors were not isolated. However, no objection had been taken to any of them by experienced trial counsel for the appellant.
Smart AJ examined the transcript in detail and concluded that trial counsel had made a deliberate forensic choice. Rather than contesting the technical framing of the DNA statistics, counsel focused the defence on the risk of contamination. This was described as a proper and sound approach, given the rarity of the DNA profile and the strength of the Crown's circumstantial case. Insisting on the technically correct approach to DNA statistics would, in practical terms, have made no difference to the outcome.
The Court refused leave under Rule 4 of the Criminal Appeal Rules to raise the new ground. Smart AJ reasoned that once the trial transcript was examined carefully, the ground lacked substance. The result of the trial was, in his view, inevitable given the rarity of the matching profile, the location of the handkerchief, and the other surrounding circumstances. The contamination argument had been fully explored at trial and rejected by the jury.
The Court also noted, for broader purposes, that as DNA analysis continues to develop in sophistication, precision and accuracy of expression in presenting DNA profile evidence remain highly desirable. The trial judge's task had been made more difficult by the absence of a daily transcript.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that characterising the rarity of a DNA profile as equivalent to the probability of guilt is an error known as the Prosecutor's Fallacy, and it appeared in this trial without objection from defence counsel.
- Rule 4 of the Criminal Appeal Rules operates to deny leave to raise grounds not taken at trial, particularly where experienced counsel made a deliberate and forensically sound tactical choice to leave the point alone.
- A deliberate tactical decision by experienced trial counsel to contest a case on one ground rather than raise additional technical challenges does not, without more, constitute a ground of appeal.
- No error was established that could have affected the outcome. Given the rarity of the appellant's DNA profile and the other circumstances in evidence, the Court considered the jury's conclusion was inevitable.
- Precision in the presentation of DNA evidence is important, and the Court echoed the observation from R v Doheny & Adams that DNA evidence is likely to grow in significance as the science develops.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Rules, Rule 4 (NSW)
Cases:
- R v Doheny & Adams [1997] 1 Cr App R 369
- R v Keir 127 A Crim R 195