Aytugrul v R [2010] NSWCCA 272
This case concerns the ways in which a witness can permissibly express DNA evidence. Traditionally, once you get past the threshold of whether or not the accused could be responsible for a particular piece of forensic material, experts will express a view, based on statistics about population genetics, of the likelihood that a random member of the population unrelated to the accused would have the same profile. Because of the rarity of any given profile, these statements quickly move into the millions or billions to one. In Aytugrul, the New South Wales Court of Criminal Appeal considered whether, even though the following propositions are all mathematically and logically equivalent, it was permissible to express statistical information about DNA evidence in all of the following forms:
1. 1 in 1000 people would be expected to have the DNA profile found in the hair specimen.McClelland CJ at CL (dissenting) held that formulation 4 was impermissible, due to the potential subliminal impact on jurors. In contrast, Simpson and Fullerton JJ held that provided the statements are all logically equivalent, experts can express the statistical information in any of the 6 forms. The High Court granted leave solely on the ground of appeal regarding the expression of DNA evidence, and not on any other grounds of appeal, such as whether the conviction was unsafe or unsatisfactory.
2. 999 out of 1000 people would not be expected to have the DNA profile found in the hair specimen
3. 0.1% of people would be expected to have the DNA profile found in the hair specimen.
4. 99.9% of people in Australia would not be expected to have the DNA profile found in the hair specimen.
5. 21,000 people in Australia would be expected to have the DNA profile found in the hair specimen.
6. 20,979,000 people in Australia would not be expected to have the DNA profile found in the hair specimen.
DPP (Cth) v Bui [2011] VSCA 61
This is the High Court's first opportunity to consider the provisions that have made their way into the appeal provisions in Victoria, NSW, Western Australia, Tasmania and the Northern Territory abolishing the sentencing principle of double jeopardy on Crown appeals. This case concerns whether those provisions are picked up by s68 of the Judiciary Act 1903 when the case involves a Commonwealth appeal. There has been some division within state appellate courts, with NSW, WA and Victoria all stating that the provisions are picked up, with Tasmania taking the view that State provisions abolishing sentencing double jeopardy are inconsistent (and hence invalid to the extent of the inconsistency) with the requirement in the Commonwealth sentencing provisions that a court imposing sentence impose one of appropriate severity in all the circumstances. The alternative basis for invalidity, and the one being run on the appeal, is that the requirement in s16A(2)(m) to take into account, among other things, the mental condition of the offender, includes the presumed distress of standing for sentence a second time that underlies the principle of sentencing double jeopardy (DPP (Cth) v De La Rosa per Basten JA).
Given the difference that exists between appellate courts and the importance of the consistent operation of these new statutory provisions, it seems unsurprising that the court granted special leave. The Crown attempted to show that this wasn't a suitable vehicle, but wasn't successful. Surprisingly, the Crown didn't run the more ambitious argument that the case didn't have sufficient prospects of success.
King v R [2011] VSCA 69
King concerns two linked issues - The application of the proviso and the possible extension of the Gillard principle that failure to correctly direct on a lesser alternative offence can deprive an accused of a chance of acquittal of the more serious offence, which the accused was convicted of, as juries do not approach the issue of competing possible convictions entirely logically. King was a culpable driving case where the judge gave erroneous directions on the alternative offence of dangerous driving (like so many cases, the trial was held prior to De Montero, which set out the appropriate direction for dangerous driving). Unlike several other appeals that have arisen since De Montero, the Court of Appeal held that there was no miscarriage of justice, as the jury convicted of culpable driving, and could only have convicted of dangerous driving if they acquitted of culpable driving.
Interestingly, on the leave hearing, Bell J makes the following observation:
BELL J: That being the case, it does rather seem as though the Court of Appeal might have taken the view that the thrust of the remarks in Gilbert were not applicable in a case such as this. What do you say about that? Why would not the reasoning apply equally?It remains to be seen whether this only concerns the principle that juries do not approach the question of competing possible verdicts entirely logically, or whether it will flow over into the related question of when a judge needs to leave an alternative offence to the jury. In Victoria, a series of cases have held that the threshold for leaving alternative verdicts is lower in relation to murder and manslaughter than for all other offences (see, most recently, Nous).
Baiada Poultry v R [2010] VSCA 23
may consider, rather than a matter the jury must be satisfied in relation to beyond reasonable doubt, in order to establish the Crown case. The Court of Appeal split 2-1 (Neave JA and Kyrou AJA, with Nettle JA against) holding that despite the error, there was no substantial miscarriage of justice. The High Court appeal looks like it will re-examine the nature of an appellate court's task when applying the proviso, and the use that a court can make of the jury's verdict in circumstances where it was misdirected in this way.
This appeal concerns the law as it existed prior to the Criminal Procedure Act 2009, and so the outcome will predominantly be relevant to other jurisdictions, as Victoria has now incorporated the proviso into the test for allowing an appeal, which now requires an appellant to establish a substantial miscarriage of justice. The operation of this new provision is just starting to kick in, with the first appeal decision where the court considered the point, Finn, handed down last week.
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