Amoa v Police Department [1993] CKCA 3; CA 03.1992 (11 August 1993)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
C.A. 3/93

IN THE MATTER
of Section 144(i)(b) of the Crimes Act 1969

BETWEEN

AMOA AMOA
of Rarotonga, Businessman
Appellant

AND

THE POLICE DEPARTMENT
of Rarotonga
Respondent

Coram: Speight JA (Presiding)
Barker JA
Dillon JA

Counsel Mr A.G.V. Rogers and Mr N. George for Appellant
Mr M.C. Mitchell for Respondent

Hearing: 12, 13 and 14 July 1993 (at Auckland)
Decision: 11th August 1993

JUDGMENT OF THE COURT

NATURE OF APPEAL

This is an appeal against the Appellant's conviction by a Jury on one information that between 1 January 1992 and 31 March 1992, he had sexual intercourse with Bridget Jamoune Webb, a girl under the age of 21 years who at the time of the offence was living with him as a member of the family and was under his care and protection (Section 144(i)(b) of the Crimes Act 1969). On two other similar informations and three informations alleging alternative counts of incest, the Jury found the Appellant not guilty.

The Appellant also appeals against the sentence of 2½ years imprisonment.

GROUNDS OF APPEAL

1. The learned trial judge should have excluded the evidence of DNA analysis.

2. Non-disclosure by the prosecution.

3. The learned trial judge should have excluded the evidence of the interviews as being in breach of Rule 9 of the Judges Rules.

4. In his summing up, the learned trial judge misrepresented the evidence of Dr Elliot.

5. The learned trial judge should have directed the jury that, apart from the evidence of the complainant, there was no direct confirmation of any act of intercourse between her and the applicant.

6. The learned trial judge should not have permitted the jury to have continued their deliberations into the evening.

BACKGROUND FACTS

The Appellant acknowledged that in 1974 he commenced a sexual relationship with June Webb, the mother of the complainant Bridget Jamoune Webb. He denied however that he is the father of the complainant who was born on 27 March 1976. He acknowledged paternity of a subsequent child, Teariki, born to June Webb. While the question of the complainant's paternity was very relevant at the trial, it is not on appeal.

The Complainant lived with her mother in New Zealand until 1990. She then returned to Rarotonga to live with the Appellant. He paid her air fares.

The complainant alleged that, from time to time, the Appellant forced her to have sexual intercourse. As a result, she became pregnant in 1991. She was then 15. In October of that year, the Appellant arranged for her to travel to New Zealand to have an abortion. He again paid her air fares.

After the abortion the Complainant returned to Rarotonga. She alleged that the Appellant continued to have sexual intercourse with her and on 15 April 1992, Doctor Runge confirmed that she was again pregnant. This pregnancy was terminated on 22 April 1992.

The Appellant denied that he was responsible for the Complainant's two pregnancies; in fact he denied having sexual intercourse with her at any time at all.

INITIAL POLICE INVESTIGATION

The Appellant was first interviewed by Inspector Browne in the presence of Sgt Tetava on 8 April 1992. Initially, the enquiries related to allegations that he had assaulted the Complainant with a length of garden hose. Subsequently he was asked about his relationship with the Complainant. In reply, he referred to her relationships with other men. As a result, the Inspector asked the Applicant, part-way through the interview, if he were willing to have a blood test. The Inspector's deposition refers to these arrangements as follows:

"The accused told me that he had no objection to have his blood tested or matched against the child's which the Complainant was carrying at the time. He said that he was willing to give blood samples for this test to clear him from these allegations. Interview stopped at 2.05 p.m. Senior Constable Ken Ben accosted (accompanied) the accused to the Sanatorium hospital where his blood samples were taken from him on a voluntary basis."

On the Appellant's return from the Hospital, the interview was resumed and concluded with advice as to the testing arrangements for the blood sample. The Inspector's deposition refers to this advice thus:

"I told the accused that his blood sample would be forwarded to the Department of Scientific & Industrial Research (DSIR) in New Zealand for matching with the blood grouping of the complainant's child that she was carrying at the time. As soon as the results came through I would speak to him again. Interview concluded at 3.28 p.m."

In October 1992 the Inspector received a report from the DSIR in New Zealand informing him of the results of a DNA analysis that had been completed.

On 21 January 1993, the Inspector again interviewed the Appellant. He again denied ever having had sexual intercourse with the Complainant. Finally, the Inspector's deposition concludes:

"The accused stated that last year 1992, he voluntarily gave his blood samples to the Police for DSIR and blood grouping examinations - DNA because he maintained that he was innocent and that he did not have sexual intercourse with the complainant. I cautioned the accused again and placed him under arrest on a charge of incest."

VOIR DIRE IN ADVANCE OF THE TRIAL

On 26 April 1993 prior to trial, Counsel for the Appellant filed a Notice of Application to Strike Out Evidence - in particular any evidence relating to the blood samples and the resultant DNA testing and profiling. The grounds upon which that application was founded also form part of the grounds for this appeal. They were as follows:

1. That an informed consent was not obtained in the taking of the blood sample from the Defendant on 8 April 1992.

2. That consent was only given for medical testing on the grounds of proving or disproving paternity of the child carried by the complainant, limited to a blood grouping test normally carried out in the hospital laboratory in Rarotonga and not extended to criminal procedures involving DNA testing which no one in the Cook Islands except for some Doctors and Police officers, know anything about.

3. That no special care was adopted to preserve the blood samples, there were no preservatives used, they remained in a Police refrigerator for 14 days and reached the DSIR where it was tested, 16 days from the date of extraction.

4. That the blood sample should be ruled inadmissible on the grounds of unfairness.

5. That the evidence of Dr Douglas Alan Elliot be ruled inadmissible on the grounds that the samples of blood he tested and conducted the DNA profiling were unfairly and improperly obtained from the Defendant.

6. That unless special legislation is passed or certain approved procedures are set, the premature introduction of DNA evidence, a recently introduced scientific discovery which Cook Islanders know nothing about, will lead to a miscarriage of justice."

This application was argued before the trial Judge, Quilliam J., on 5 May 1993, less than a week before the trial commenced on 10 May 1993. He set out his reasons for admitting the evidence of the DNA testing in a written judgment.

It is necessary to consider the manner in which this voir dire was conducted, and the evidence presented.

1. Neither Inspector Browne nor Dr Elliot who conducted the DNA testing were required by the defence to attend for cross-examination on their depositions.

2. The Appellant was not called to substantiate subsequent allegations of limited consent or the failure to obtain his informed consent before obtaining his blood samples.

Consequently submissions on this application were limited to a consideration of the original depositions of Inspector Browne and Dr Elliot. The Inspector's depositions as to consent have already been mentioned.

Also available at this pre-trial hearing, was the evidence of Dr Runge who had determined that the Complainant was 6 to 8 weeks pregnant when he examined her on 15 April 1992; and that he terminated that pregnancy after discussions with his colleagues on 22 April 1992. The embryo and placental tissue from the terminated pregnancy, together with the blood from the Appellant, had been forwarded to the DSIR in New Zealand where they were tested and analysed by Dr Elliot.

Following the DNA testing Dr Elliot reported his findings in his deposition as follows:

"I have examined the results of the profiles from Bridget Webb, Amoa Amoa and the foetal sample statistically and the likelihood of two possible alternatives has been considered:

(a) either Mr Amoa Amoa is the father of the foetus; or

(b) some other person chosen at random from the population is the father of the foetus.

When Mr Amoa Amoa and Bridget Webb are regarded as members of a Pacific Island population, the results are approximately 72 times more likely if Amoa Amoa is the father of the foetus than if some other person chosen at random from that population is the father. This supports the contention that Amoa Amoa is the father of the foetus."

The deposition of Inspector Browne; and the depositions of Dr Runge and Dr Elliot, therefore constituted the factual evidence on which the application to strike out the DNA evidence of Dr Elliot was based. Quilliam J. referred to and relied upon the decision of the New Zealand Court of Appeal in R. v Pengelly (1992) 1 NZLR 545 he ruled that "... there can, in my opinion, be no basis upon which the evidence of the DNA testing should not be admitted. To adopt the words used in Pengelly, there is no suggestion but that the consent was obtained "without artifice or deception as to the purpose for which the sample (was) required". The Judge ruled that the DNA evidence of Dr Elliot was admissible.

THE GROUNDS OF APPEAL

1. The learned trial Judge should have excluded the evidence of DNA analysis.

The emphasis of this appeal has been directed first to the trial Judge's failure to exclude the DNA evidence, and secondly, to an alleged incorrect interpretation of that DNA evidence in the summing-up by the trial Judge.

Counsel for the Appellant relied on the deposition evidence before Quilliam J. on the voir dire viz. the statements of Inspector Browne, Dr Runge and Dr Elliot. It was submitted to this Court that the Appellant's instructions to Counsel, said to have been included in the second ground of the application to strike out evidence, justified exclusion of the DNA evidence before trial; and should now form a basis for supporting this appeal. Clause 2 of that application states as follows:

"That consent was only given for medical testing on the grounds of proving or disproving paternity of the child carried by the complainant, limited to a blood grouping test normally carried out in the hospital laboratory in Rarotonga and not extended to criminal procedures involving DNA testing which no one in the Cook Islands except for some Doctors and Police officers, know anything about."

However at the pre-trial hearing in the nature of a voir dire, no evidence was called to support any of those allegations. In fact, the only evidence available to the trial Judge was the clear and uncontradicted evidence of Inspector Browne that the Appellant had no objection to having his blood tested in order to clear him from the allegations made by the Complainant.

In this context, and based on that evidence, the principles enunciated in Pengelly were directly applicable to both the circumstances and the evidence before the Court on the voir dire

In the course of the trial, however, Inspector Browne was cross-examined on the form and content of the Appellant's consent - Counsel argued that it was a consent obtained by deception - because it was inferred that the Inspector himself did not realise that a DNA analysis was to be undertaken. It was suggested that he could not therefore have adequately advised the Appellant in order to obtain the informed consent so necessary to establish the admissibility of such evidence.

The Appellant gave evidence on his own behalf at the trial, in relation to this issue.

His evidence was as follows:

"Q. Was DNA testing ever mentioned to you?

A. No.

Q. DSIR mentioned to you?

A. I cannot recall if that word was mentioned to me. What I can recall is that there was no mention of New Zealand nor DNA.

Q. Have you ever heard of DNA fingerprinting?

A. No.

Q. If it was explained to you that your blood samples would be subjected to DNA profiling by DSIR in New Zealand would you have agreed to give your blood?

A. If I had known that my blood would be taken away from my homeland to New Zealand I would not have agreed.

Q. Why would you not agree?

A. I would object to this because there is no right for anybody to take my blood away from my homeland and to take my blood to New Zealand and I don't know what happened to it. They did this without me knowing, I told myself that these people stole my blood."

This evidence of the Appellant at his trial, together with the evidence of Inspector Browne under cross-examination, raises a different concept of informed consent from that presented at the hearing of the voir dire. It is now suggested that this limited consent provided by the Appellant does not equate with the informed consent so necessary to permit the admission of the evidence of DNA profiling and the statistical analysis which results.

It would have been possible for Counsel for the Defence to have renewed at trial an application to exclude the evidence in the light of what transpired at the trial - see R v Wilson [1981] 1 NZLR 316, 323 and R v Watson [1980] 2 All ER 293. No such application was made to the trial Judge. However, as Wilson's case shows, the Court of Appeal may still consider additional grounds of challenge to the evidence admitted at voir dire. The absence of challenge means that this Court does not have the benefit of the trial Judge's views - nor can it attempt to resolve conflicts of evidence without a ruling from the trial Judge. Nor do we see any additional material emerging in the course of trial, which would have persuaded the Judge, had the issue been raised, or of his own volition, to alter the view taken by the Judge at the voir dire.

The only point on which the trial Judge's view might have been helpful is on the Appellant's claim that he would not have allowed his blood to go to New Zealand. This evidence was contrary to the Inspector's, i.e. that he explained to the Appellant that the blood would have to go to New Zealand. Had Counsel for the Appellant, at trial, raised the matter, we might have had the benefit of the trial Judge's ruling on this conflict of evidence. In the absence of any further application at trial to exclude the evidence, we are not disposed to interfere with the voir dire ruling.

Counsel for the Appellant relied on the New Zealand High Court decision of R. v Montella [1991] 7 CRNZ 258 which distinguished Pengelly's case. In Montella's case, blood samples were obtained on the basis that testing would be undertaken to establish the presence of AIDS only. The samples in fact were DNA tested and the DNA evidence was offered in support of a charge of committing an act of anal intercourse on a person under 12 years of age. The DNA evidence was excluded on the general principle that consent must be obtained without deception and trickery and be given freely by an informed accused. The exclusion principle applied in the Montella case had as its basis the possibility of artifice or deception and the consequential exercise of a discretion. At page 263 Williamson J. distinguished the Pengelly case thus:

"In his decision in Pengelly, Thorp J emphasised that in his view it was sufficient if consent was obtained without artifice or deception by a person in a position to give a free and informed consent. In this case I do not conclude that the police acted with artifice or deception or by trickery but I am uncertain whether or not the accused has been shown to have given a free and informed consent. The evidence is such that the accused may have given his consent upon a basis that it would be used only for a particular test. It could be said that to have the sample used for other tests is in the nature of a deception of him, although perhaps an innocent deception by those involved. The basis of excluding the evidence in this case is possible artifice or deception and consequently in my view it would not be appropriate for it to be admitted and in the exercise of my discretion I exclude it."

The Montella case establishes that consent given for the purpose of testing for AIDS cannot justify or entitle the resultant evidence to then be available to support criminal proceedings. Informed consent must relate to the purpose for which the consent was provided. For those reasons, Williamson J's exercise of discretion to exclude the DNA evidence accorded with the generally accepted principles of consent.

Counsel for the Appellant has submitted that the DNA evidence in the present case should have been excluded based on the same principles that were accepted as applying in the Montella case.

But what was the predominant principle that applied in that case? It was accepted that the Police had not acted with artifice or deception or trickery. The uncertainty which activated the discretion was the uncertainty whether free and informed consent was given. The uncertainty was created by a free and informed consent to test for aids - however there was no free and informed consent to test for the purpose of securing evidence on which criminal proceedings could be based.

The difference was considered by the Court of Appeal in Pengelly's case at 548 in these words:

"Mr Gibson, counsel for the accused, submitted that the evidence did not show that the blood samples had been obtained by consent. Ho submitted that consent had to be both informed and voluntary, and that this required not merely asking a suspect to consent to the taking of a blood sample, but also informing him of his right to grant or withhold consent. It was submitted that Pengelly should also have been told that blood had been found in the house and that the sample would be used to compare this blood with his blood. Because DNA testing is "only one step short of positive proof" it was submitted that the implications of such testing were such that they should have been explained to Pengelly in order to obtain an informed consent. He should have been told that there was a new technology available which would establish almost conclusively whether the blood in the house was his or was from someone else.

In our view, there is no substance in these submissions. It is implicit in the asking for consent that the person asked does not have to give it. At the time of his initial consent the accused was aware that a woman had been murdered in the house that night, that his fingerprints had been found on the window louvres, that there was blood on the windows and that the police believed he had been inside the house. It must have been quite obvious to him that the only purpose of taking blood samples would be to further the police investigation by ascertaining whether or not the blood stains found at the house could have come from him. That, we think, was in itself sufficient. We respectfully adopt the trial Judge's view on this matter, which he expressed as follows:

‘I believe it is sufficient to authorise the taking of blood if consent to that course is obtained without artifice or deception as to the purpose for which the sample is required, from a person in a position to give a free and informed consent.

I do not believe that in this context 'informed consent' requires that the person be expressly informed either that he may refuse to consent, or about the methods or techniques which may be used to obtain information from the samples given by him.’"

In the present case, the Appellant had no objection to his blood being tested or matched against that of the foetus being carried by the Complainant. He is said even to have been willing to give blood samples to clear him from the allegations made by the Complainant. What is now objected to is not the blood testing or matching but the DNA method adopted by the DSIR for that purpose.

The decision in Pengelly is not technically binding in the Cook Islands but must be accorded considerable weight. The principles enunciated in that decision accord with our view of informed consent. The implications of the DNA profiling are relative only to the method of testing to be adopted. We reject the submission that because the method of testing was not explained to the Appellant, therefore that evidence derived from the DNA analysis must be rejected. We are satisfied that the Appellant was fully informed of why a blood test was required; he consented and willingly gave blood samples to clear his name.

Counsel referred to an article by Mr W.J. Brookbanks in [1992] NZLJ. 125 which is highly critical of the Pengelly decision. However we feel constrained to follow such a recent decision by a Court of 5 Judges in the New Zealand Court of Appeal.

It has been further submitted that there are two additional reasons why the evidence obtained by the DNA method should have been excluded; even although these were not canvassed before the trial Judge. Counsel submitted that these reasons differentiated the case from Pengelly - particularly because the New Zealand Bill of Rights Act 1990 was not in force when Pengelly was arrested.

1. That the evidence was obtained in breach of Section 64 of the Constitution Amendment Act (No. 9) 1980-81. Section 64 reads in part as follows:

"PART IVA - FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

64. Fundamental human rights and freedoms - (1) It is hereby recognised and declared that in the Cook Islands there exist and shall continue to exist, without discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex, the following fundamental human rights and freedoms:

(a) The right of the individual to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with law:"

Counsel for the Appellant relied on the "Security of the person" and the fundamental human rights and freedoms attracted to or by that declaration.

We were referred to R v Dyment, a decision of the Court of Appeal of Prince Edward Island reported at 49 CR (3d) 338. The case went to the Supreme Court of Canada [1988] 2 RCS 417 but the point at issue was not addressed. Section 7 of the Canadian Charter of Rights and Freedoms provides:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice."

However Section 7 was not addressed in that appeal. Section 8 of the Charter was considered but that Section is of no assistance in considering Section 64 of the Cook Islands Constitution.

It is our opinion there has been no breach of the Constitution Amendment Act (No. 9) 1980-81.

2. That the evidence was obtained in breach of the Appellant's privilege against self-incrimination.

In support of this submission we were referred to Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 - this related to the right to determine the validity of arrest or detection without delay; and to R v Te Kira [1993] 9 CRNZ 649 - this referred to the consequences flowing from a breach of Section 23(3) of the New Zealand Bill of Rights Act.

In the present appeal we do not consider there has in fact been any such breach. The Appellant consented to the blood test in order to prove his innocence.

We are satisfied the trial Judge correctly admitted the evidence of the DNA analysis.

2. Non-Disclosure by the Prosecution

It is now submitted as a ground of appeal that a job sheet prepared by Sgt Tetava and the notes of an interview made by Inspector Browne were never disclosed to the defence. It is admitted they were never sought. While that should be the end of the matter, a consideration of the job sheet and notes now produced indeed confirms that they would have been very much against the interests of the Appellant if they had been produced or referred to in the course of the trial. Clearly the Appellant has not been prejudiced. There is no merit in that submission.

However, Counsel further submitted that Ngatokurua Terepo and Varu John were two witnesses called by the Prosecution. They both had previous convictions which were not disclosed to Defence Counsel prior to trial.

Mr Mitchell has told us that it is not the practice in the Cook Islands to disclose to the Defence the convictions of Prosecution witnesses relevant to credibility. We say at once that the practice should be introduced without delay in cases where credibility is a real issue.

The relevant principles as enunciated in the case of Wilson v Police [1991] NZCA 179; [1991] 7 CRNZ 699 have equal application in the Cook Islands as they do in New Zealand. It was for that reason that we requested those notes of evidence which were not included in the record on appeal - in particular the evidence of Ngatokurua Terepo and Varu John.

This evidence disclosed that on cross-examination Terepo stated:

"XX - Mr George.

Q. Ngatokorua, are you a man of truthfulness?

A. Yes.

Q. You never lied?

A. Before.

Q. Have you been in Court before?

A. Yes.

Q. What for?

A. Stealing.

and John stated:

Q. You said before that you were in Court previously for stealing?

A. Yes

Q. Did you serve any term of imprisonment?

A. Yes

Q. How long for?

A. Six months.

Q. What was it for?

A. For stealing.

There is no doubt that the evidence of these two witnesses called by the Prosecution were relevant to the issue of credibility.

It is acknowledged by Counsel for the Respondent that there was no disclosure of their convictions.

However, both witnesses, when cross-examined in the course of the trial, quite frankly admitted their previous history. In those circumstances the Defence has not been prejudiced by the earlier non-disclosure.

This ground of appeal is rejected.

3. The learned trial Judge should have excluded the evidence of the interviews as being in breach of Rule 9 of the Judge's Rules

Evidence of the interviews were not objected to at the trial; such evidence of the interviews as was presented at the trial was not in breach of Rule 9 of the Judges Rules; this ground of appeal has no substance.

4. In his summing up the learned trial Judge misrepresented the evidence of Dr Elliot

Dr Elliot was the forensic scientist who performed the DNA profiling on the blood samples and embryonic tissue forwarded to him in New Zealand. The evidence of his findings at the trial was as follows:

Q. Can you tell us what your findings are please?

A. I examined the results of the profiles statistically and the likelihood of two possible alternatives has been considered. Either Mr Amoa Amoa is the father of the foetus or some other person chosen at random from the population is the father of the foetus. When Mr Amoa Amoa and Miss Bridget Webb are regarded as members of a Pacific Island population the results are approximately 72 times more likely if Amoa Amoa is the father of the foetus than if some other person chosen at random from the population is the father. This supports the contention that Amoa Amoa is the father of the foetus.

Q. If you were to express that support in terms of degrees of likelihood how would you, what expression would you choose?

A. Using our method of statistical analysis and verbal interpretation I would say that the contention that Amoa Amoa is the father is supported. There is another method that certain American laboratories use to go from a likelihood number to a verbal statement. Using this method I would say that it is very likely that Amoa Amoa is the father of the foetus.

Q. At the time you were carrying out these DNA tests did you make any assessment in relation to the, I'm sorry did you make an assessment of the blood from Amoa Amoa compared with Bridget's blood on the question of his fatherhood of her?

A. I made such an assessment.

Q. At the time you made that assessment had you been particularly asked to do so or did you simply do it as part of your research?

A. As I recall the question had been raised as to if the DNA evidence could be used to discuss the possible parentage of Bridget Webb by Amoa Amoa but it was never pursued but I did the calculations anyway.

Q. And what was the result of that calculation?

A. The results are approximately forty times more likely if Amoa Amoa is the father of Bridget Webb than if some other person chosen at random is the father. This supports the contention that Amoa Amoa is the father of Bridget Webb. Using the other style of verbal interpretation the results make it very likely that Amoa Amoa is Bridget Webb's father."

Subsequently Dr Elliot was asked to analyse and carry out DNA profiling on three further blood samples. As a result of those tests he was able to say in evidence:

"Q. In relation to the question as to whether John Varu, Vainetutai Tearai or Ngatokorua Terepo could be the father of this foetus what was your finding?

A. None of these three men could have been the father of the foetus.

Q. And to what degree of certainty can you say that?

A. To an absolute degree of certainty, they could not have been the father."

Mr Rogers, Counsel for the Appellant, conceded that Dr Elliot's evidence was correctly and logically given; however he submitted that the trial Judge's summing up to the Jury incorrectly interpreted Dr Elliot's evidence and as a consequence misrepresented the Doctor's evidence. He refers in particular to:

"There was some evidence about the taking of blood samples from various people. Please do not bother about that. I have ruled that the blood were properly taken and that is the end of that point. Now a brief word about the scientific evidence. In our Courts the guilt or innocence of people is not decided by scientists. It is decided by jury but of course you have to consider what you make of scientific evidence. I'm not going to go through it but you may feel that what the scientist is really saying to you putting it in everyday language that the odds in favour of the accused being the father of the foetus on the second occasion were not just two to one, ten to one but seventy-two to one. And similarly the odds in favour of his being Bridget's father are forty to one. It's for you to say whether you think that is significant or not."

Counsel's criticism refers to "72" and that figure's relationship to the Doctor's analysis when compared to the use of "72" in the trial Judge's direction to the jury. Mr Rogers accepts Dr Elliot's description of his analysis result as being approximately 72 times more likely" that the Appellant is the father of the foetus. However he submits that when the Jury is directed that the odds in favour of the Appellant being the father of the foetus is 72 to one, then that description of Dr Elliot's evidence is incorrect.

Since Counsel for the Appellant accepts Dr Elliot's evidence as both correct and logical, it is appropriate to review his evidence on cross-examination at the trial, viz:

Q. What would be the chances in a small population like ours here of getting a sample similar to Mr Amoa's.

A. Certainly the three other men could not have been the father of the foetus sample. Within the population I think it is correct to say that one in approximately 72 of the people could have the same DNA profile.

Q. So that for every 72 other person in Rarotonga their DNA profile would be the same as Amoa's?

A. No, it is a statistical probability rather than one that you could state as fact as you have done.

Q. So that is actually a statistical fact?

A. It's a statistical probability."

Later in his evidence on cross-examination:

Q. When we come down to page 3 of your report, you say there "when Mr Amoa Amoa and Bridget Webb are regarded as a member of a Pacific Island population the results are approximately 72 times more likely if Amoa Amoa is the father of the foetus than if some other person chosen at random from that population is the father. This supports the contention that Amoa Amoa is the father of the foetus," how can you say that?

A. Because it does support the contention.

Q. How does contention stand alongside absolute?

A. The contention here is one of two opposing contentions that I put forward, one that Mr Amoa Amoa was the father and two, that some other person is the father. The DNA results are 72 times more likely if Mr Amoa Amoa is the father.

Q. Dr Elliot is there a dividing line between the contentions, you say in this case 72 times, is there a bottom line that you feel comfortable in putting to the Courts?

A. My bottom line is that the evidence supports the contention that he is the father of the foetus. The absolute minimum for the contention that Amoa Amoa is the father would be a probability of zero, i.e. he is not the father."

And further on:

"Q. Thank you Dr Elliot, now so in this case, in the case of the comparison, in your first comparison it's 72 times more likely and in your second analysis on, I refer you to the second and more recent one on paternity, you stated it was 40 times more likely, is that correct, that Amoa Amoa was the father of the foetus?

A. Yes that's correct."

And finally:

"Q. Now if the jury were to be invited to compare a 72 figure which you have described as very likely with a million, how do you explain that apparent discrepancy?

A. With a likelihood ratio of about a million I would report it as being almost certain that X was the father of Y. A likelihood ratio of 72 which allows me to say it is very likely that Mr Amoa Amoa is the father of the foetus of course has less statistical weight than a likelihood of a million. But it is still evidence that supports the contention that Mr Amoa Amoa was the father of the foetus."

The description of this "72" factor is variously described by Dr Eliot as "one in approximately 72"; "approximately 72 times more likely"; "are 72 times more likely"; "it's 72 times more likely"; "a likelihood ratio of 72".

The trial Judge in directing the Jury on the scientific evidence referred to this factor of "72" as being "seventy two to one" that the Appellant was the father of the foetus. In other words while Counsel accepted that the correct factor as described by Dr Elliot was "l in 72", the description as "72 to 1" in the summing up to the Jury was incorrect.

Even accepting that there is that difference as submitted by Counsel, we have no doubt that the "72" factor which was mentioned only once in the whole of the summing up to the Jury is inconsequential. What is of importance is that the result achieved by Dr Elliot in his DNA profiling and analysis was repeated so many times throughout his evidence and cross-examination.

In our view the trial Judge in his summing up did not misrepresent the evidence of Dr Elliot.

5. The learned trial Judge should have directed the Jury that apart from the evidence of the Complainant there was no direct confirmation of any act of intercourse between her and the Appellant.

Section 20B of the Evidence Amendment Act (No. 2) 1986-87 provides:

"..... for any other offence of a sexual nature no corroboration of a complainant's evidence shall be necessary for the accused to be convicted; and in any such case the fudge shall not be required to give any warning to the fury relating to the absence of corroboration."

In our view, criticism of the Judge's directions to the jury in this context, is misplaced. The Judge was not required to give any warning. He had a discretion and there is no basis for saying that he exercised it wrongly.

6. The learned trial Judge should not have permitted the Jury to have continued their deliberations into the evening.

Counsel for the Appellant submitted that the jury retired at about 3.30 p.m. and returned its verdict between 10.00 p.m. and 10.30 p.m.

The Registrar of the High Court has reported by fax that the Jury retired 4.50 p.m. and the Court resumed for the verdict at 9.35 p.m. - that is a total of 4.45 hours. Large meals are always supplied to the Jury so that their deliberations would have: been no more than 4 hours.

Such a submission is hard to take seriously since juries in New Zealand frequently are sent out to deliberate in late afternoon and often do not return with a verdict until near midnight. Counsel referred to recent English cases where strictures were made about juries being asked to deliberate in cold rooms without refreshment. We believe under both New Zealand and Cook Island conditions, juries probably prefer to begin their deliberation whilst the Judge's summing up and the final addresses are fresh in their minds and without their memory of those addresses being interrupted by the events at their homes.

There is nothing in this ground of appeal which we unhesitatingly reject.

SENTENCE

Although sentencing the Appellant for only one offence, and ignoring the allegations on which the Appellant had been acquitted, the Judge nevertheless regarded the offending as serious. He was right to do so. It involved a gross breach of trust. The complainant became pregnant and underwent an abortion.

We have been assisted by the analysis of similar cases undertaken by Eichelbaum C.J. in X v Police (unreported New Plymouth High Court A.P. 24/91 - 10 December 1991). It is clear from that view that imprisonment is inevitable for offending like this, even on a plea of guilty. The learned Chief Justice reduced the sentence from 18 months to 1 year because of mitigating factors. However, on a not guilty plea and with no signs of remorse having been displayed by the appellant, the sentence, although at the higher end of the scale, was within the range.

Accordingly the appeal against both conviction and sentence is dismissed.

SPEIGHT JA
BARKER JA
DILLON JA