R v Meyboom [2011] ACTSC 13 (4 February 2011)

CRIMINAL LAW – sexual assault – sexual intercourse without consent – unlawful assault with intent to engage in sexual intercourse – theft – two complainants – two separate incidents – no direct connection between incidents – knowledge of lack of consent – circumstantial case – lack of identification evidence – verdict of not guilty entered for first complainant – lies of accused – lack of credibility – verdict of guilty entered for second complainant

CRIMINAL LAW – sexual intercourse without consent – unlawful assault with intent to engage in sexual intercourse – duplicitous charges – no verdict entered

EVIDENCE LAW – DNA analysis – most significant evidence – flaws in the process of DNA analysis – overloaded analysing machine – reliability of probability ratio – lessens probative value – 9 loci standard – partial match – supports a conclusion that the accused could not be excluded – does not prove beyond a reasonable doubt the identification of the accused

1. By indictment presented on 7 February 2008, the accused, Craig Paul Meyboom was charged with seven offences.

FIRST COUNT	... THAT on the 11th day of November 2005 at Canberra in the Australian Capital Territory CRAIG PAUL MEYBOOM did unlawfully assault [JT] with intent to engage in sexual intercourse with her.
SECOND COUNT	AND FURTHER THAT on the 11th day of November 2005 at Canberra aforesaid CRAIG PAUL MEYBOOM engaged in sexual intercourse with [JT], without her consent, and knowing that she did not consent or being reckless as to whether she had consented.
THIRD COUNT	AND FURTHER THAT on the 11th day of November 2005 at Canberra aforesaid CRAIG PAUL MEYBOOM dishonestly appropriated property, namely a Sony Ericsson Mobile phone and five hundred dollars in cash belonging to [JT] with the intention of permanently depriving her of that property.
FOURTH COUNT	AND FURTHER THAT on the 5th day of April 2006 at Canberra aforesaid CRAIG PAUL MEYBOOM did unlawfully assault [AF] with intent to engage in sexual intercourse with her.
FIFTH COUNT	AND FURTHER THAT on the 5th day of April 2006 at Canberra aforesaid CRAIG PAUL MEYBOOM engaged in sexual intercourse with [AF], without her consent, and knowing that she did not consent or being reckless as to whether she had consented.
SIXTH COUNT	AND FURTHER THAT on the 5th day of April 2006 at Canberra aforesaid CRAIG PAUL MEYBOOM engaged in sexual intercourse with [AF], without her consent, and knowing that she did not consent or being reckless as to whether she had consented.
SEVENTH COUNT	AND FURTHER THAT on the 5th day of April 2006 at Canberra aforesaid CRAIG PAUL MEYBOOM dishonestly appropriated property, namely a white Nokia 6101 Mobile phone belonging to [AF] with the intention of permanently depriving her of that property.

2. The allegations concern two separate incidents, the first on 11 November 2005, in which [JT] was set upon by an assailant who was a stranger to her. He violently pushed and pulled her, pushed her to the ground and then sexually assaulted her by inserting a finger into her vagina. A male person, Mr Kenneth Hird, came across the scene at this point. The assailant then desisted, stealing [JT’s] mobile phone and $500 cash. He fled the scene. This occurred at about 10.50 pm along a bike path behind Dickson Pool.

3. The second event is alleged to have occurred on 5 April 2006. The complainant [AF] was also set upon by an assailant who apparently intended to sexually assault her. The assailant struck her causing her to fall to the ground. He indicated he wanted to “touch” her, not to “rape” her. He undressed her and inserted several fingers into her vagina. He then knelt between her legs and placed his tongue into her vagina. [AF] resisted the assailant. The assailant then broke off the attack, stealing [AF]’s mobile phone. It is alleged that the accused gave that phone on the next day to his then girlfriend.

4. Given the lapse of time between the two incidents and the lack of any strikingly similar features of the two attacks, it did not seem to me possible to conclude that the same person perpetrated both attacks so as to render evidence in one admissible in the other.

5. On 24 July 2009, the accused validly elected for trial by judge alone. Pleas of not guilty were entered to each count.

6. For the purposes of this trial, commencing 12 July 2010, I have to assume the role of the jury as well as that of trial judge.

9. The Crown assumes the heavy burden of proving each element of the alleged offences to the criminal standard, that is, beyond reasonable doubt.

10. The accused, whether he offers an answer to the accusations or not, bears no onus of proof, disproof or persuasion. That remains so throughout the trial.

11. He is entitled to a presumption of innocence both generally and in respect of the drawing of any adverse inference from the evidence.

13. An assault involves the unlawful application of force to the person of another. The intent is to engage in sexual intercourse. That is defined by s 50 as meaning:

14. The force involved in those acts, if applied without consent or lawful excuse, is an assault.

15. The intention of the assailant may be inferred from his utterances and actions.

16. For the purposes of counts two, five and six the actions alleged amount to sexual intercourse and s 54(1) provides:

17. The offence has since been amended to require proof only of recklessness as the standard of awareness of lack of consent. However, for the purposes of this trial, the Crown accepts that it must elect to prove one or the other level of awareness of lack of consent. Not surprisingly it elects to prove knowledge of lack of consent of each complainant.

18. For counts three and seven the Crown must prove the offence prescribed by s 308 of the Criminal Code 2002 (the Code):

20. Appropriation of property is defined by s 304 of the Code for present purposes as –

21. The intention of permanently depriving a person of property belonging to that person is defined by s 306 of the Code. Clearly to take the property referred to in the circumstances alleged for the purposes of counts three and seven would evidence such an intention.

22. The Crown case is that the accused was the assailant in each case. It acknowledges that neither complainant has identified the accused as the assailant.

23. However, it asserts that the use of the mobile phones stolen from the complainants and DNA analysis of material deposited at the crime scenes, links the accused in each case to the attack on each complainant.

24. The accused did not seek to dispute the account given by each complainant of the attack upon her.

25. [JT]’s evidence clearly establishes against her assailant each of the alleged offences.

26. Similarly, the evidence of [AF] clearly supported the Crown case against the assailant in respect of each offence concerning her.

27. In each case, there were forensic swabs performed on the complainants by Dr Sansum in relation to [JT] and Dr Krause in relation to [AF].

28. Evidence was tendered and not disputed concerning the use of each of the stolen mobile phones following the theft of them.

29. [JT]’s mobile phone was first used on 28 March 2006 using a SIM card issued in the name of “Bobby Magee”. Up until 16 April 2006 it was used to send texts and make calls inter alia, to the mobile phone and land line of the accused and to the mobile phone of the accused’s then girlfriend, Ms Melissa Brenton.

30. To attempt otherwise to link that phone to the accused, Mr JR Avery-Wilson was called as a witness. He purchased the phone, he said, at Charnwood shops from a person called “Corey”. That person did not match the description of the accused.

31. Mr Robert McNamara deposed that he had given a SIM card to a Mr Corey Longbottom in 2003. It was in the name of “Bobby Magee”. He did not give Mr Longbottom the phone in question.

32. In relation to the second phone, another witness, Mr Toby Kelly, was called. He denied ever selling a mobile phone to the accused. He answered the description of the person who the accused told police had sold him a mobile phone. Mr Kelly was aware that the accused had so informed the police and that police had identified that phone as having belonged to a “rape victim”. He had met the accused, he said, through Mr McNamara.

33. He agreed that he met the accused on 5 April 2006 at Red Hill shops. He was given money to get drugs for him. He said it was about $250 not $1400 as was suggested by the accused’s counsel. He denied, further, that he also sold the accused a mobile phone on that occasion.

34. Mr Kelly also agreed that he was aware that if he was, on 5 April 2006, in possession of [AF]’s mobile phone, he would be suspected of perpetrating the attack upon her. He denied that he had done so.

35. Nevertheless, he did agree that he told police, that, on a previous occasion, he saw Mr Longbottom obtain a Sony Ericsson mobile phone from Mr McNamara. That could have been the first of the two mobile phones in question.

36. Detective Sergeant Marriott deposed to the finding in Civic of a bag stolen from [JT] in the course of the attack upon her. However, it was not forensically examined.

37. Constable Hilda Sirec gave evidence of a search conducted on 7 June 2006 upon premises of Ms Brenton, who was then the girlfriend of the accused.

38. A white Nokia phone, later identified as that stolen from [AF], was located. A statement from Ms Brenton was admitted into evidence in which she stated that the phone of [AF] was given to her by the accused.

39. Indeed, the accused was recorded, when interviewed by police, as admitting to doing so, though he asserted he got that phone from Mr Kelly.

40. That phone was first used at 1.52 pm on 6 April 2006, according to phone records. Ms Brenton had received the phone before then.

41. Thus the accused must have received the phone after 6.35 pm on 5 April 2006 but before the time of its first subsequent use. Mr Kelly had deposed to meeting the accused before that time on 5 April 2006 but his evidence could not be relied upon, given his admissions, with any certainty.

42. Mr Longbottom gave evidence of receiving the Sony Eriksson phone, Exhibit 17, from the accused. He used a SIM card obtained from Mr McNamara in it. He onsold the phone, apparently to Mr Avery-Wilson.

43. In cross-examination he conceded he could not be sure if the phone, Exhibit 17, was given to him by the accused or by Mr McNamara. Thus the link between the accused and the phone, following the attack on [JT] is far from strong.

44. Mr Longbottom had also told police he got a Sony Ericsson phone from the accused in November or December 2005. It appears, from the phone records that that date could not be accurate if it was the same phone. It had to be March 2006 at the earliest.

45. Exhibit 22 disclosed that [JT]’s phone, with another SIM card in it had been used within a week of the attack upon her. The SIM card from her phone was put into a phone of Mr Perry Weber.

46. The latter deposed that that phone had been stolen from him before 2004, whilst he was living at Red Hill. Many of the numbers called thereafter, however, he did recognise. It does seem likely that one of the persons whom he knew in Red Hill, who was conceded to be a well known thief, might well have stolen his phone.

47. Detective Sergeant Ciantar had investigated phone records and interviewed the accused concerning the attack of 5 April 2006 at Dickson on [AF]. The significant part was his admission of giving the mobile phone, now identified as that of [AF], to Ms Brenton, with the assertion that he obtained it from Mr Kelly. Otherwise, he denied involvement in the attack.

49. The phone of [JT] was activated by a SIM card in November 2005, being a card from Mr Weber’s stolen phone.

50. Thereafter it was activated by the “Bobby Magee” SIM card. Between 11 November 2005 and 28 November 2005 numbers associated with the accused were contacted from that stolen phone. After [JT]’s phone was so used it was traced to Mr Longbottom.

51. A photoboard identification attempt with [JT] and [AF] was conducted. Neither recognised the accused as their assailant. Indeed, [AF] picked a photo from the array shown to her that was not that of the accused.

52. Some criticism was made by Mr Gill, for the accused, of the absence of any forensic testing of the phone of [AF] to determine if, say, Mr Kelly had indeed handled it or accessed its interior. If his DNA had been found, it would have lent credence to the accused’s claim that Mr Kelly gave him the phone on 5 April 2006 in the context of a drug deal.

53. It was apparent, however, that there was no evidence that the phone taken from [JT] had been in the possession of the accused or associated with him during 2005. It is also apparent, however, that many of the persons associated with the phone of [JT] were persons involved in a drug sub-culture and may have been associated in some way with each other. The accused was also a part of that sub-culture and in that sense could be associated with the phone. From the above evidence, whilst the [AF] phone is strongly linked to the accused, the [JT] phone could not be.

54. The most significant evidence, apart from the phones, was that of DNA analysis.

55. The DNA evidence in each case was supported by the evidence of Dr Cindy Lim, a forensic biologist employed within the Australian Federal Police. Her expertise was in analysing DNA profiles obtained from crime scene samples.

56. A detailed report with accompanying documents was tendered setting out the results of DNA examination of the clothing of the victims [JT] and [AF] and the DNA sample provided by the accused.

57. The theory of DNA, which I accept, is that biological material from the cells of a person reveals a chain of material that can yield, after amplification, “blips” on a graph. Ten sites are chosen from those blips to form a profile. One of those sites simply indicates that a male or female was the contributor. The other nine sites return “blips” at various points. The blips are usually represented by peaks which at each site have numbers conventionally assigned to them so that a peak at one locus may return the same or a different number as between different contributors. It is the combination of the nine loci that is believed to strongly identify a particular contributor should that contributor’s profile be matched by a crime scene (or other) profile. Each person should have two peaks at each site, each contributed genetically by each parent (unless both have the same peak). Generally peaks to the left of a site are smaller than those to the right. The general height of peaks in one profile depends on the quantity of DNA present. A trace of DNA would have a very small peak. The measure of the height, though it may be differently represented visually, is measured in relative fluorescent units (RFU). The visual difference is for the purpose of easier viewing of smaller peaks.

58. One qualification is that, even on a single sample, one peak of double, or nearly so, height may be observed where the father and mother had identical peaks at that locus. It is apparent that, subject to the laws of chance, many individuals will share the same values at the same loci. It may be compared with a nine reel poker machine. There are a limited range of possible values on each reel but the chances against all reels lining up to a given profile of values is very high. Obviously, the fewer “reels” that can be detected the higher the chance of a random match. The “reels” in the case of DNA are referred to as “alleles”.

59. The theory of DNA profiling is, though expressed in terms of chance outcomes, that a complete match is a positive identification between two samples.

60. Thus it is no surprise that a high degree of confidence was expressed in the match between the reference samples from [JT] and [AF] and the strong profile result from samples of DNA obtained from their clothing.

61. There was, in neither case, a direct deposit of any biological material by the perpetrator upon either victim so as to yield a complete biological sample as complete as the reference sample from the respective individuals. In the case of the victims, of course, a sample returning a strong match could readily be assumed to be contributed to by them.

62. The difficulty which arose is exemplified by the report on DNA testing for FC052106-1B “Red/brown stain on outside front of jumper, below logo”. The result is said to be:

63. That report details an assumption, namely, that no more than two individuals contributed to the minor component of the DNA. That assumption must be proved valid in order to support a conclusion that a particular individual is “not excluded” as a contributor.

64. In this case the non-exclusion of the accused adds nothing positive to the Crown case. It was pointless to calculate a likelihood ratio for the major component as there was only one potential contributor and none could be calculated for the minor component “due to the complex nature of this mixed DNA profile”.

Sample	Description	Results	Likelihood Ratio (calculated using the ACT general population database)
FC052106-1J	Tape lift of outside front top half of jumper	A mixed DNA profile from a minimum of three individuals was obtained. This mixed DNA profile can be separated into major and minor components. The major components identified were identical to the DNA profile obtained from [JT] Craig Paul MEYBOOM has not been excluded as a contributor to the minor components.	The evidence is approximately 11 million times more likely if the mixed DNA profile originated from [JT], Craig MEYBOOM and another unknown individual than if it originated from [JT] and two unknown and unrelated individuals randomly selected from the general ACT population. Refer to the preliminary statement by Simon Joseph WALSH dated 10th January 2007.

66. The report asserts that if there were only two contributors to the minor component it was 11 million times more likely that the accused was a contributor than some random other individual.

67. It does not address the possibility that more than two persons contributed to the minor components.

Sample	Description	Results	Likelihood Ratio (calculated using the ACT general population database)
FC052106-2A	Tape lift of outside front top of pants	A mixed DNA profile from a minimum of two individuals was obtained. This mixed DNA profile can be separated into major and minor components. The major components identified were identical to the DNA profile obtained from [JT] Craig Paul MEYBOOM has not been excluded as a contributor to the minor components.	The evidence is approximately 127 times more likely if the mixed DNA profile originated from [JT] and Craig MEYBOOM than if it originated from [JT] and an unknown and unrelated individual randomly selected from the general ACT population.

Even on the assumption made, a 127 times likelihood is an extremely weak correlation.

Sample	Description	Results	Likelihood Ratio (calculated using the ACT general population database)
FC052106-4F	Tape lift of inside front lower half of shirt	A mixed DNA profile from a minimum of two individuals was obtained. [JT] and Craig Paul MEYBOOM have not been excluded as a contributors.	The evidence is approximately 290 million times more likely if the mixed DNA profile originated from [JT] and Craig MEYBOOM than if it originated from [JT] and another unknown and unrelated individual randomly selected from the general ACT population.

This report is the highest correlation asserted. Even so, the assumption is of only two contributors. It does not address the possibility that more than two persons contributed.

70. In relation to [AF] only two samples were regarded as positive for inclusion of the accused. The first was:

Sample	Description	Results	Likelihood Ratio (calculated using the ACT general population database)
FC060539-8C	Tape lift of outside right sleeve of jacket	A mixed DNA profile from a minimum of three individuals was obtained. This mixed DNA profile can be separated into major and minor components. The major components identified were identical to the DNA profile obtained from [AF]. Craig Paul MEYBOOM has not been excluded as a contributor to the minor components.	The evidence is approximately 600 million times more likely if the mixed DNA profile originated from [AF], Craig MEYBOOM and another unknown individual than if it originated from [AF] and two unknown and unrelated individuals randomly selected from the general ACT population. Refer to the preliminary statement by Simon Joseph WALSH dated 10th January 2007.

Again the assumption made is of only two contributors (other than [AF]) to the sample.

Sample	Description	Results	Likelihood Ratio (calculated using the ACT general population database)
FC060539-8E	Tape lift of collar and lapel of jacket (top side)	A mixed DNA profile from a minimum of two individuals was obtained. This mixed DNA profile can be separated into major and minor components. The major components identified were identical to the DNA profile obtained from [AF]. Craig Paul MEYBOOM has not been excluded as a contributor to the minor components.	The evidence is approximately 1,900 million times more likely if the mixed DNA profile originated from [AF] and Craig MEYBOOM than if it originated from [AF] and an unknown and unrelated individual randomly selected from the general ACT population. Refer to the preliminary statement by Simon Joseph WALSH dated 10th January 2007.

72. However, it may be noted that one further sample was positively identified as having been contaminated by a staff member.

Sample	Description	Results	Likelihood Ratio (calculated using the ACT general population database)
FC060539-9-1-1	Tape lift of right section on side 1 of scarf	A mixed DNA profile from a minimum of three individuals was obtained. This mixed DNA profile can be separated into major and minor components. The major components identified were identical to the DNA profile obtained from [AF]. Craig Paul MEYBOOM has been excluded as a contributor to this mixed DNA profile. A member of staff has not been excluded as a contributor to this mixed DNA profile.	Statistical evaluation will not be conducted on this DNA profile.

73. The assessment of more than two persons contributing was based on peaks at alleles not consistent with either the victim or the accused. It is clear that an assumption was made that if a peak at an allele was not excluded from the profile of the accused then it did not come from an unknown contributor. Dr Lim also advised that the laboratory arbitrarily excluded all peaks below 50 RFU. They include, if they feel it appropriate, peaks at 50-100 RFU, but do not use them for statistical analysis. It may indicate only a person contributing at that particular allele but not necessarily at any other. There are also “blips” which resemble allele peaks but are “artefacts”. An example is a “stutter” that may be pulled up by one fluorescence in the amplification process affecting another. It may indicate a faulty copy of the DNA, for example, by the sample being “overloaded”.

74. The fluorescences are provided by different dyes which highlight different portions of the DNA strand and may, in that event, “bleed” through, pulling up a false peak.

75. It is a matter of judgment whether the analyst calls a peak at such low levels a “stutter” or a genuine peak. A computer program analyses the results and causes the peaks or stutters to be displayed and printed.

76. A cautionary note was sounded by Dr Lim in that where there are minor contributors they may add to each other if they share an allele or add to the major contributor’s peaks. Thus, though it is possible to conclude that there is a minor contributor, it is possible there may be more than one of them. If the values are marginal, any certainty of identification, even as to the number of individuals contributing, is not possible.

77. The non-exclusion of the accused is therefore predicated on the assumption that all peaks consistent with his reference profile are contributed by him and no-one else.

78. It was surprising that no portion of any tape used to lift samples was kept to ensure the integrity of the extraction of DNA from it. It prevents an independent audit of the process.

79. Another odd feature is that profiles of staff members from whom traces of DNA might come into contact with samples of trace DNA from the crime scene could not be kept by reason of “legislative issues”. What that meant Dr Lim could not explain.

80. Another officer, Dr Walsh, assisted Dr Lim with interpreting the graphs produced and the calculation of the likelihood ratio of the stated hypotheses. The actual analysis was, in fact, not conducted by Dr Lim but by other biologists who had signed off the result documents. However, no challenge was offered to the accuracy of the stated results.

81. Despite the allegation in the case of [AF] that the perpetrator had licked her, no test was done for saliva.

82. In general terms, Dr Lim conceded, several contributors to the trace DNA located in these samples could contribute different alleles that could, in combination, correspond to a third person.

83. Dr Lim also acknowledged that, in the UK, a match, even at all nine loci had been found to be a false match when further loci had been tested.

85. The probability ratio could also be affected by whether the contributor racially matched the ACT data base or did not. That would not alter the identification of a theoretical match but would affect the extent to which such a match was less likely to be that of a random other individual.

86. Evidence was also given of “pull up”, a phenomenon resulting from overloading, which may give rise to an allele being identified which is not a genuine result.

87. Such an occurrence depends on the chance circumstance that the shape of the peak is uneven at the tip. It may also be indicated by large variations between the RFU values of peaks. In general RFUs over 6,000 would tend to indicate overloading. The result then, Dr Lim said, is:

88. The manufacturer of the program used to analyse results recommends that results over 7 to 8,000 RFUs not be used but that the sample be reanalysed.

89. That was not the practice, despite that, at Dr Lim’s laboratory. She said, “We just apply our judgement as scientists on repeats”. That is, whether to accept and report the result or retest at a lower concentration.

90. Again, the presence of small peaks before or after a strong peak might be “pre-stutter” or “post-stutter” rather than a genuine result, though it may indicate a secondary contributor rather than a mere artefact. The analyst simply decides to call it one way or the other. That process might well overlook evidence of a minor contributor other than the assumed minor contributor, in this case, the accused.

91. It is a matter of concern that the laboratory considered that the manufacturer’s recommendation that RFU results above 4,500 begin to be unsafe and not to use RFU results above 6,000 could safely be ignored if the result otherwise looked alright to the analyst.

93. Dr Lim also acknowledged a process called “drop out”. That is, where the amplification process miscarrying may result in a peak that should be present not being detected. There could be stutters produced by the amplification process itself. The copying can be incomplete. That can be because of the strength of the major contribution compared with the minor contribution. It can cause peaks of the same size to appear to be different. That is called a stochastic effect. That is a different phenomenon from the absence of peaks where they ought to be present.

94. The fallacy in the analysis of the minor contributors as not excluding the accused with any assigned degree of likelihood was acknowledged by Dr Lim in response to Mr Gill following up her concession that the existence of at least one further minor contributor to the DNA mix could not reasonably be excluded:

95. That process of reasoning in fact relies upon a view that, if it be an hypothesis consistent with innocence that four or more persons contributed to the DNA then before that hypothesis can be relied upon the accused must prove that more than three persons contributed. The reference to the presence of persons, other than the main contributor is, of course, irrelevant. A third person was identified as being a contributor. No third person was present at the crime scene, at least in a similar proximity to the victim as was the assailant. At the trace levels analysed, direct contact was not necessary nor was there direct contact other than between the assailant and the victim yet more than one minor contributor was detected.

96. It was also apparent that there was an absence of some alleles that, had the accused been a contributor, would have been present. That was consistent, Dr Lim said, either with him not being a contributor or, because of the low levels of DNA being analysed for minor contributors, information being missing or dropping out.

97. In summary, Dr Lim’s opinion could not go beyond saying that the accused could be a contributor but it is reasonably possible that he was not.

98. It is important to note that the trace DNA from various contributors may or may not have been deposited by direct contact. Thus, the lack of evidence of direct contact with a person other than the assailant at the time of the attack does not warrant an assumption that there was no such other person contributing to trace DNA upon the clothing of either of the victims. It is, in my view, not possible, if the standard for evidence is proof beyond reasonable doubt, to exclude a reasonable hypothesis simply because that hypothesis is not established as a fact. If it had been the case that the mixed DNA could only have come from one person other than the victim then the likelihood of a match to the accused would to that extent support an inference of guilt. Where a third contributor can be identified then the extent of the contribution of that contributor, including a replication of alleles otherwise attributable to the accused, must be accounted for. It would clearly lower the likelihood ratio of the accused being a contributor. Again, this is an example of the reasoning process of the DNA analysis reversing the onus of proof. It was Dr Lim’s assumption, in the case of more than one contributor apart from the victim, that any allele consistent with the accused be assessed as if it was contributed by him. In truth, if the question is what hypothesis exists consistent with the non-involvement of the accused, it should be assumed that he has not contributed any allele to the mix unless all other reasonable possibilities are excluded. Thus trace DNA from the victim, as well as a third person where identified, must be first excluded before the likelihood ratio of identification of the accused as a contributor can be calculated.

99. This is a different inquiry from that which asks what the strength of the evidence for exclusion of the accused is.

100. That approach is illustrated by Dr Lim’s answer to Mr Gill after exploring the additional combinations potentially arising from additional contributors:

101. Suffice to say that, beyond concluding that the accused cannot be excluded as a contributor to the minor portion to the DNA analysed, that evidence does not enable a conclusion to be drawn that he was, with any degree of probability, a contributor.

102. The difficulty was aptly summarised by Dr Lim in response to Mr Lawton, for the Crown, in re-examination:

103. To summarise, for mixed DNA where small amounts are present, it is impossible to, with certainty, exclude or include any particular person as a contributor. Nor was there any test to determine the time at which any DNA found was contributed or in what order.

104. This, of course, rendered the evidence of Dr Walsh, who calculated the likelihood ratios in the report by reference to an ACT population data base, of no probative value in this case.

105. It may be a useful working hypothesis for the purposes of assigning a value to the likelihood ratio of a particular person with a known profile being included in a mixture to assume that the contributors are statistically consistent with a particular database, but it is not an assumption that can be regarded as applicable in any given case. For example, was the perpetrator a foreign visitor or not? In other words, it is assuming that which is to be proved to assume conformity between the perpetrator and the general ACT population.

106. It may make no substantive difference. For example, a ratio of 1 billion to one as opposed to 2 billion to one would not make a great difference to the level of confidence one could place in the result, but, as Dr Walsh noted:

108. I should interpolate that in that latter answer Dr Walsh was, I understand, talking of absolute certainty. That is not the threshold set by the criminal law. That threshold, though high, does not require absolute certainty. It is enough that the tribunal of fact entertains no reasonable doubt as to the conclusion.

109. See, for example, Forbes v R [2009] ACTCA 10 (19 June 2009) compared with R v Hillier [2010] ACTSC 33 (16 April 2010).

110. Nevertheless, as Dr Walsh stated, if the assumption of only one or two minor contributors was not warranted then:

112. I will deal first with Dr Brian McDonald. His expertise was in the area of DNA. He had set up the first accredited diagnostic laboratory in Australia offering services for analysis of DNA.

113. He confirmed Dr Lim’s concession that the analysing machine had been overloaded. In his opinion, the results thus obtained could not be relied upon. If the RFUs exceeded 7000 then that was a sign that too much DNA was being analysed.

114. The result of that, according to Dr McDonald, is that the alleles of a minor contributor or contributors are confused with stutter and pull-up. Mr Gill asked:

115. In summary, it was Dr McDonald’s view that the profile thus obtained for a minor contributor, even if misleading artefacts were excluded, was unsafe to rely upon as an identification of that profile with a particular person of interest.

116. His evidence did identify serious flaws in the processes adopted by the AFP laboratory which clearly deserve attention if results are intended for use in support of a criminal charge.

117. It may have little impact in the present case, as Dr Lim and Dr Walsh have both conceded that the DNA results obtained are of no assistance in identifying the accused as a contributor though they support a conclusion that the accused is not excluded.

118. Even on that issue, not only could it not be accepted as proved that the accused was the only minor contributor, there was evidence that at least two other males were also contributors to one or other sample. There was also the established contamination from a staff member’s DNA in one case.

119. I have to say that I found Dr McDonald’s evidence quite persuasive. The only issue upon which he differed from Drs Lim and Walsh was as to the limits upon the use of results obtained from samples overloaded by the standards of the manufacturer’s manual. It may be that it does not invalidate a result, as the AFP technicians asserted, but it does expose it to doubt. In a criminal trial that significantly lessens its probative value to a point below the criminal standard of proof.

120. There is a more fundamental difficulty with the nine loci standard. If it be accepted that a match at all nine loci is a positive identification or, at least, supports such a conclusion to the criminal standard, (see, for example, Forbes (supra)) then an incomplete DNA profile showing a match at, say, eight of nine loci must be excluded as probative should the ninth be inconsistent with that of the person of interest. Yet where that locus is absent, to assume that it would be identical with the accused’s reference sample would be to assume guilt. To give effect to a presumption of innocence it would have to be assumed that the last locus was not consistent with the accused unless otherwise proved.

121. The partial match would, of course, be acceptable as evidence supporting a conclusion that the accused could not be excluded as a contributor but would require other evidence to carry the Crown beyond the onus of persuasion of beyond reasonable doubt as to the identification of the accused as the perpetrator.

122. The accused also gave evidence in his defence. I remind myself that he was not obliged to do so and that, by doing so, he made himself available for cross-examination by the Crown. I also remind myself that, by giving evidence, the accused did not assume any onus of proof or persuasion.

123. His evidence first addressed the possession by his then partner of the mobile phone stolen from [AF] at a time shortly after the attack upon her. This, quite clearly, was extremely incriminatory evidence.

124. The accused asserted, as indeed Mr Kelly had admitted, that he met Mr Kelly at Red Hill Shops in order for the latter to supply him with “ice”.

125. It was the accused’s evidence that he bought that phone in the course of that drug deal. That deal, he said, took place around 8.30 pm. He was home shortly before 9.00 pm.

126. He said he paid Mr Kelly $1,400 for the “ice”, a dress (for his girlfriend) and the phone.

127. Mr Lawton, in cross-examination, enquired of the accused where he, being unemployed, got the large sum of money, about $26,000, which he claimed then to have in his possession, of which the $1400 was a part.

128. Upon a grant of immunity under s 130 of the Evidence Act 1995 (Cth) the accused claimed to have stolen that money from a business at Kaleen. He committed that burglary and theft earlier that day, he said, “a little after 7”.

129. He further claimed to have observed the business premises for about 40 minutes before then waiting for a person in the premises to leave. That was the person who had informed him where the safe was located.

130. As the attack on [AF] occurred about 6.35 pm at Dickson, this claim by the accused was clearly a claim to an alibi. He did name the person who was his informant. Though no notice of alibi had been given, Mr Lawton did not object to that evidence.

131. It was suggested to the accused that the burglary at the Kaleen Newsagency was committed on 7 May 2006, not 5 April 2006. His answer was, on the face of it, quite extraordinary:

133. I permitted the Crown to lead evidence in reply to this contention advanced by the accused. It was evidence which could not have been anticipated by the Crown and it went to a central issue undermining what otherwise would appear to be a strong circumstantial Crown case.

134. Sergeant Ciantar interrogated the police database and found burglaries had been reported at Kaleen Newsagency on 7 May, 4 July and 20 September 2006. The proprietor of the business had been insured and had made claims for losses as a result of those burglaries. His statement was admitted without objection. The burglary of 7 May 2006 bore a remarkable resemblance in terms of modus operandi to that described by the accused for 5 April 2006. There was, however, no such burglary reported for 5 April 2006.

136. Mr Lawton noted, correctly, that, as this was a circumstantial case, whether or not the accused’s denial of guilt was disregarded, the only rational explanation for that evidence must be the guilt of the accused.

137. I respectfully agree and adopt the approach urged by Mr Lawton and most recently commended by the High Court in R v Hillier [2007] HCA 13; (2007) 228 CLR 618, [46] – [48].

138. In respect of [JT], the attack upon her was on 11 November 2005. Her phone and “Snoopy” bag were taken. The bag was later found in Civic. The phone was later recovered from Mr Avery-Wilson in July 2006.

139. There was no forensic evidence linking the accused to the bag. The only forensic link was the non-exclusion of the accused from trace DNA found on [JT]’s clothing.

140. The phone was not used until 28 March 2006. It was used with a SIM set up by Mr Robert McNamara in the name of “Bobby Magee”. Mr McNamara gave evidence, not challenged, that he purchased the phone from a person called “Corey”. That seems to have been Mr Corey Longbottom.

141. The only connection with the accused is that Mr Longbottom says that the phone was received by him from the accused. The first chargeable call from the “Bobby Magee” SIM card is to the accused’s home phone and to his mobile and that of Ms Brenton.

142. I note that, among the persons with whom the accused was associated, the trafficking in stolen mobile phones seems not to have been uncommon.

143. There was a considerable time gap between the theft of [JT]’s phone and any association of it with the accused, even the indirect link detailed above. I have already noted that Mr Longbottom’s claim that the accused gave him the phone was unpersuasive.

144. The case of [AF] is, in that respect, different. Mr Lawton submitted that the gap between the theft of the phone and its possession by the accused was within three hours.

145. The accused admitted giving that phone to Ms Brenton who used it first on 6 April 2006 at 1.52 pm.

146. Clearly, that circumstance, absent any rational alternative hypothesis, is strongly consistent with the accused having stolen the phone from [AF] and, hence, being her assailant.

147. The accused sought to implicate Mr Toby Kelly as the supplier to him of the phone.

148. Mr Kelly’s evidence, though it did him no credit, was that he did that day supply drugs to the accused, not for $1400 as the accused claimed, but for $250. He denied supplying a phone to the accused, let alone [AF]’s phone. The supply took place, he said, early afternoon around lunch time.

149. Mr Lawton submits that the accused’s story about obtaining funds to buy $1400 worth of “ice” from a burglary at Kaleen Newsagency, albeit a burglary he may well have committed on 7 May 2006, may be found to be a lie.

150. That lie, Mr Lawton submits, is relevant not only to discredit the accused as a witness but may, in the circumstances, be supportive of an inference of guilt.

151. I adopt, as Mr Lawton concedes that I must, the warning contained in R v Ray [2003] NSWCCA 227; (2003) 57 NSWLR 616 [98]. An accused, even if innocent, might tell a lie to distance himself or herself from the crime.

152. As to the DNA evidence, Mr Lawton put it on the basis of non-exclusion of the accused.

153. I agree that the expert evidence was, largely, consistent. The only disagreement, really, was that Dr McDonald found the examination of the minor contributors was flawed by overloading of samples.

154. Although Mr Lawton urged that this was not expert evidence, I do not accede to that suggestion. I consider that Dr McDonald is highly qualified and that his opinions are worthy of acceptance.

155. I have already noted the flaws in the reasoning of Drs Lim and Walsh, if their opinions were to be taken as supporting the likelihood ratios which Dr Walsh calculated. I accept that the use of particular databases can change those calculations, though that would, for the most part, make only a relatively small difference. It does, however, illustrate the importance of understanding and evaluating the assumptions upon which an expert opinion is based.

156. It is in that context that the weight to be attached to the opinions of Drs Lim and Walsh must be assessed. In some circumstances, a probability ratio attaching to an identified DNA profile will be of considerable probative value. I adhere to the comments I made in R v Mitchell (1997) 98 A Crim R 32 and Forbes v R [2009] ACTCA 10, [39] and [40]. However, trace DNA where the number of contributors and their mode of contribution is uncertain lends little weight to what may be a chance result of some correspondence between an accused person’s DNA profile and the alleles identified in that process. That is even more the case where, as here, there is evidence of overloading, creating doubt as to the veracity of some parts of some results.

157. Nevertheless, Mr Lawton’s point is accepted. That is, the DNA evidence does not exclude the accused. It does not, however, by itself, compel a conclusion that the accused was the assailant in either or both attacks.

158. Mr Gill, for the accused, pointed out that the link between the accused and the phone stolen from [JT] was tenuous. True there was evidence from Mr Longbottom that he received the phone from the accused. That evidence was not entirely satisfactory. He says he used it immediately but call records do not commence until March 2006. He conceded that it was possible that he obtained the phone from Mr McNamara rather than the accused.

159. It does appear that the persons who were part of the social circle of many of the witnesses had a common interest in drugs and stolen mobile phones. There is some doubt also as to whether the vendor of [JT]’s phone to Mr Avery-Wilson was Mr Longbottom despite the attribution of the name “Corey”. Mr Avery-Wilson’s description of the vendor was of a redhead as Mr Kelly was. There is certainly insufficient evidence to link the accused with [JT]’s phone so soon after the attack upon her as to warrant an inference with the requisite degree of certainty that the accused was her attacker.

160. Mr Gill submits that the evidence about the [AF] telephone, although admittedly in the possession of the accused shortly after the attack, left open the reasonable possibility that it was passed to the accused by Mr Kelly as part of his drug deal with the accused. Mr Kelly was a link between Mr Longbottom and Mr McNamara as well.

161. Further, he pointed out, Mr Kelly was well aware that to admit to passing the [AF] telephone to the accused would be to place himself one step closer than the accused to the attack upon [AF].

162. Further, even conceding that the accused had mistakenly linked the drug deal on 5 April 2006 with the Kaleen burglary of 7 May 2006, that fact did not mean that the deal did not take place. Indeed, it was Mr Kelly’s evidence that it did, though not at a time of day following the attack on [AF] that the accused asserted.

163. Mr Gill also criticised the police investigation for failing to DNA test various items and possible persons of interest.

164. I have already noted the deficiencies in the DNA analyses. Mr Gill reiterated those criticisms and it will be apparent that, to some extent, I accept those criticisms.

165. It is, I emphasise, inappropriate to attempt to reason that the same person must have committed each of the charged offences. In neither case is there any direct connection. The taking of a mobile phone, the location, are similarities but not such as to make it rational to assume, particularly in light of the time gap between them, that the same person committed both series of offences.

166. The other link is the connection between the mobile phone stolen from the victim and the accused. In the case of [JT] this is not so close as to support an inference of guilt. The DNA evidence is not sufficiently compelling to bridge that gap.

167. I am, given the lack of identification evidence, driven to conclude that the guilt of the accused in the case of that attack has not been established to the criminal standard. A verdict of not guilty will be recorded in respect of counts one, two and three.

168. In relation to counts four to seven, the only explanation other than the guilt of the accused is the suggestion that he may have come by [AF]’s mobile phone through Mr Kelly. That is, in itself, unlikely given the circumstances admitted by each of them, though little reliance can be placed on the evidence of either of them. The fact, however, that the accused constructed an elaborate lie, transposing the May 2006 burglary of Kaleen Newsagency to 5 April 2006 dispels any lingering doubt that there might have been that he was the person who attacked [AF] on 5 April 2006 at Dickson. I accept that the DNA evidence does not support any doubt as to that conclusion though, on the other hand, it does not compel a conclusion as to guilt.

169. Thus, despite the accused’s denials, which I reject as untruthful, both because of his general lack of credit and specific lies, I find him guilty of the sexual assault upon [AF] and the consequential theft of her mobile phone. Whilst there are two distinct sexual assaults upon [AF], the assault upon her as expressed in count four, whilst clearly with intent to engage in sexual intercourse, is embraced within the findings made in respect of counts five and six. It would, therefore, be duplicitous to enter a verdict in respect of count four. There will be recorded verdicts of guilt in respect of counts five, six and seven.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Supreme Court of the ACT

R v Meyboom [2011] ACTSC 13 (4 February 2011)