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  • Unreported Judgment

Pentland v The Queen

 

[2020] QSCPR 10

SUPREME COURT OF QUEENSLAND

CITATION:

Pentland v The Queen [2020] QSCPR 10

PARTIES:

Neil Pentland

(Applicant)

v

The Queen

(Respondent)

FILE NO/S:

Indictment 532 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 and 30 April 2020

JUDGE:

Lyons SJA

ORDER:

  1. The expert reports and the evidence of Professor Kenneth Collerson are excluded.
  2. The evidence concerning and related to the importation, supply and distribution of Norma brand ammunition in Australia is excluded.
  3. The application to exclude the statement and evidence of Nicholas Freda is refused.
  4. The prosecution is to provide a list of witnesses and a list of exhibits setting out the evidence it intends to lead at trial to the defence by 4pm Monday 1 June 2020.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – OPINION EVIDENCE – EXPERT OPINION – where  in 1997 the deceased, a marketing manager of an emerging internet business, was found dead – where the deceased was later found to have been shot with four bullets (identified as .32 calibre ammunition) discovered in and around his body – where the applicant (who had been the sole director of the business of which the deceased was the marketing manager) was arrested and charged with the deceased’s murder in 2017 – where the case against the applicant is wholly circumstantial – where the Crown seeks to rely on the evidence of Professor Collerson, an isotype geochemist, to link the ammunition used to kill the deceased with ammunition subsequently found at a co-accused’s home during a search in April 1997 – where the applicant brought an application pursuant to s 590AA of the Criminal Code Act 1899 (Qld) seeking a ruling that the expert reports and the evidence of Professor Collerson be excluded – whether Professor Collerson’s evidence is  admissible whether the methodology utilised by Professor Collerson has been accepted by the scientific community as reliable and accurate

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where  in 1997 the deceased, a marketing manager of an emerging internet business, was found dead – where the deceased was later found to have been shot with four bullets (identified as .32 calibre ammunition) discovered in and around his body – where the applicant (who had been the sole director of the business of which the deceased was the marketing manager) was arrested and charged with the deceased’s murder in 2017 – where the case against the applicant is wholly circumstantial – where the Crown seeks to link the ammunition used to kill the deceased with ammunition subsequently found at a co-accused’s home during a search in April 1997 – where investigators initially considered that the bullets used to kill the deceased were Norma brand ammunition – where the crown seeks to lead evidence from 130 ammunition suppliers in Queensland in relation to whether they carried Norma .32 calibre bullets at the relevant time – where the Crown also wishes to lead evidence of a threatening email sent from an Ozemail account from the Qantas Lounge at Sydney airport, prior to the deceased’s murder, at a time when the applicant was at the airport – where the crown wishes to lead evidence from Nicholas Freda, a Customer Investigations Officer at Ozemail, about the meaning of the data embedded in that email – where the applicant brought an application pursuant to s 590AA of the Criminal Code Act 1899 (Qld) seeking rulings that: the evidence concerning and related to the importation, supply and distribution of Norma brand ammunition in Australia be excluded; the statement and evidence of Nicholas Freda be excluded; the prosecution is to provide a list of witnesses and a list of exhibits setting out the evidence the prosecution intends to lead at trial to the defence – whether the evidence concerning and related to the importation, supply and distribution of Norma brand ammunition in Australia ought to be excluded – whether the evidence of Nicholas Freda ought to be excluded

Criminal Code Act 1899 (Qld), s 590AA

Evidence Act 1977 (Qld), s 130

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, applied

Dupas v The Queen (2012) 40 VR 182, cited

R v Baxter [2019] QCA 87, cited

R v Bonython (1984) 38 SASR 45, applied

R v Karger (2001) 83 SASR 1, applied

R v Lentini [2018] QCA 299, cited

Tuite v The Queen [2015] VSCA 148, cited

COUNSEL:

S Holt QC with B Dighton for the applicant

D L Meredith for the respondent

SOLICITORS:

Gilshenan & Luton for the applicant

The Office of the Director of Public Prosecutions for the respondent

  1. [1]
    Neil Pentland (the applicant) has been charged with the murder of Phillip James Carlyle on the 13th of April 1997.  This is an application pursuant to s 590AA of the Criminal Code Act 1899 (Qld) by the applicant for a ruling that:
    1. (a)
      The expert reports and the evidence of Professor Kenneth Collerson be excluded from the trial of the defendant;
    2. (b)
      A ruling that the evidence concerning and related to the importation, supply and distribution of Norma brand ammunition in Australia be excluded from the trial;
    3. (c)
      A ruling that the statement and evidence of Nicholas Freda be excluded from the trial; and
    4. (d)
      A further direction that the prosecution is to provide a list of witnesses and a list of exhibits setting out the evidence it intends to lead at trial to the defence by 4pm Monday 1 June 2020.

Background

  1. [2]
    The deceased was found dead on the evening of Sunday, 13 April 1997 in his Gold Coast office.  He was the marketing manager of an emerging internet business, Atnet Pty Ltd, which had been registered by the applicant, who was the sole director, on 28 August 1996.  Mr Carlyle was facing bankruptcy proceedings at the time. Both men had been at their office at Robina until around 11 or 11.15 am when the applicant left to see John Hitchen at Reedy Creek. 
  2. [3]
    Mr Carlyle was later found to have been shot with four bullets discovered in and around his body.  The four bullets were identified as .32 calibre ammunition.  No arrests were made at the time and the applicant was not arrested and charged until 23 June 2017. 
  3. [4]
    An indictment charging the applicant with murder was presented on 12 April 2019 and his trial before a judge sitting without a jury is scheduled to commence on 20 July 2020. John Hitchen was initially charged on the same indictment with being an accessory after the fact to murder but was subsequently granted a separate trial to commence after the conclusion of the applicant’s trial.

The Prosecution Case

  1. [5]
    The case against the applicant is wholly circumstantial. The Crown seeks to establish motive and opportunity by various bodies of evidence.  The Crown also relies on the evidence of Professor Collerson, an isotype geochemist, to link the ammunition used to kill Mr Carlyle with ammunition subsequently found at Mr Hitchen’s home during a search of the home on 15 April 1997. During that search, Mr Hitchen disclosed that he had a weapon and directed police to a floor safe where a .32 calibre BRNO pistol and 3 boxes of live rounds of Norma brand ammunition were located. The pistol was later test fired and eliminated as a weapon of interest.
  2. [6]
    Investigators initially considered that the bullets used to kill Mr Carlyle were Norma brand ammunition based on the evidence of the ballistics expert, Sgt David Bennett.  His initial analysis was that all four projectiles found at the murder scene were .32 calibre, they all weighed over 75 grains and all had steel jackets.  He stated that most brands of .32 calibre ammunition have brass jacketed projectiles weighing 71 grains but that Norma ammunition has steel jacketed projectiles weighing 77 grains. He concluded that the bullets found at the scene were Norma brand ammunition.  Subsequent investigations, including those by Professor Collerson, were based on that premise.
  3. [7]
    At the committal hearing on 15 October 2018, Sgt Bennett conceded that his conclusion that the projectiles found in and around the deceased were Norma ammunition was no more than an assumption and to be definitive about the four bullets being Norma ammunition it would be necessary to establish that no other manufacturer in the world aside from Norma makes steel jacketed .32 calibre ammunition of greater than 75 grains.  The Crown concedes that the evidence does not permit with any certainty the conclusion that the bullets at the scene were Norma brand ammunition.
  4. [8]
    Whilst the Crown is not leading evidence of the number of ammunition suppliers in Australia or the quantity of Norma .32 calibre bullets imported into Australia in the relevant period, it wishes to lead evidence from 130 ammunition suppliers in Queensland to indicate that only a few of those 130 suppliers carried Norma .32 calibre bullets.
  5. [9]
    The applicant participated in a number of interviews with police and indicated that he had left the office on 13 April 1997 at around 11 in the morning and had gone to see Mr Hitchen who had a mechanics workshop which he operated from his property.  He had done work on the applicant’s cars for eight years, as well as other work while the applicant was building a house.  The applicant stated that they talked for about 10 to 15 minutes and he organised a car service for the following Friday.  He then went to the house of Dr Strauss who had been treating him for a shoulder injury. Dr Strauss indicated that the applicant had arrived there at some time before midday.
  6. [10]
    Mr Carlyle’s body was found at 11pm on 13 April 1997.  The pathologist stated that whilst the approximate time of death was consistent with a time between 10 and 12 that morning, he accepted it could have been as late as 5pm as the range is six to 12 hours.
  7. [11]
    The Crown also relies on the evidence of David Nunn who states that between the end of 1996 and 1998, Mr Hitchen had asked him to obtain a small weapon for his partner Dagmar Peyrac and had specifically asked for a .22 calibre gun.  The Crown intends to lead evidence from Ms Peyrac, who was Mr Hitchen’s partner in 1997, who states that she never had possession of such a weapon.  Ms Peyrac was not aware of the murder until she was interviewed by police in 2016 more than 19 years after the murder.  The Crown intends to lead evidence, which at its highest, has her recalling an occasion, which she accepts could have been anytime from 1995 to 1998, when Mr Hitchen produced a box which held a revolver or automatic pistol, and showed it to friends.  Sometime later but close in time to that event, a person with a car similar to that owned by the applicant visited on a Sunday. She gave evidence that at some point, possibly two years after the murder, Mr Hitchen was upset because a gun had been returned and it was not in the same condition in which he had given it to them. She subsequently saw a similar box when she was in the car with the applicant around the time of a gun amnesty and never saw the box again.  The Crown will argue that these events occurred close in time to the murder.
  8. [12]
    Mr Carlyle was the subject of numerous threats prior to his death, including periods of time before he met the applicant, which related to unpaid debts and a failed prior business.  Those threats had included men coming to his home and work place. 
  9. [13]
    The Crown argues however that the applicant had a financial motive for the killing as a $500,000 Keyman Insurance Policy was taken out covering both Mr Carlyle and the applicant in August 1996 when the company was formed, which was operational from December 1996; some four months before the killing.  Furthermore the applicant had lent Mr Carlyle $6,500 to pay for the services of an Insolvency Broker named Will Hawney to assist him in a Part X application under the Bankruptcy Act 1966 (Cth) and the calling of a meeting of creditors. The Crown argues that the applicant had dealings with Mr Hawney previously and was furious his money had ended up with him which indicated that there was some acrimony between the applicant and Mr Carlyle, not only about the fact of the debt, but the fact that Mr Hawney had the money. 
  10. [14]
    Against that background the Crown also wishes to lead evidence of a threatening email sent by ‘Brian Jones’ from the Qantas Lounge at Sydney airport on the evening of Sunday 23 February 1997 at 6.35pm; a time when the applicant was at the airport having checked in for a Qantas flight to Coolangatta at 6.01pm. It was sent from the email address [email protected] with the subject line “Pay”.  The Crown wishes to lead evidence from Nicholas Freda, a Customer Investigations Officer at Ozemail, about the meaning of the data embedded in the email.

The Evidence of Professor Collerson

  1. [15]
    The ammunition found at the scene has the same steel jacket, is of the same calibre, and arguably is consistent with the weights of the Norma ammunition that investigators found at John Hitchen’s property.  The Crown however also wishes to rely at trial on expert evidence from Professor Collerson to argue that the two groups of ammunition also have the same isotopic ratio of lead.  That is, that there is a sameness of numbers in the data analysis between the various projectiles that were examined from the two locations. 
  2. [16]
    Professor Collerson is Emeritus Professor of geochemistry at the University of Queensland and was previously head of sciences at that University. He was responsible for the establishment of a radiogenic isotope laboratory at that institution which is acknowledged to be one of the premier facilities of that kind in the world.  That laboratory measures trace elements and radiogenic isotopes in an environment where there is ultrafiltration of air so that there is minimal chance of contamination from external elements. 
  3. [17]
    Professor Collerson gave evidence that the development of the multi collector ICP mass spectrometer has revolutionised the ability to accurately determine the isotopic composition of a wide range of elements that have multi isotopes and that the techniques are used around the world.  The technique is used in particular for measuring accurately atomic weights or isotopic abundances with a naturally occurring material.[1]  At the hearing, Professor Collerson gave extensive evidence and presented a PowerPoint in relation to the methodology by which he came to his conclusions from his analysis of the bullets that were found at the scene and the bullets that were made available to him by police from Mr Hitchen’s home.  That analysis revealed that he was able to obtain measurements which he has put into his various reports, which lead to conclusions about the two sets of ammunition. 
  4. [18]
    Professor Collerson provided four reports to the Crown dated 9 October 2000, 16 October 2000, 24 October 2000 and 5 May 2017.  On 29 April 2020, he provided a further report which gave a statistical basis for the ratio analysis that he has previously undertaken. The history of those reports is set out in his report of 5 May 2017 as follows:

1  Introduction

Previous isotopic work on this case was undertaken seventeen years ago (Collerson, 2000 a, b & c).  This initial study was prompted by results of lead isotopic studies by Stupian (1975), Keisch and Callahan (1978) and Andrasko et al. (1993).

These initial results indicated that 207Pb/206Pb and 208Pb/206Pb isotopic ratios for three (#A,#B and #C) of the four projectiles recovered from the body of Carlyle defined a single population.  However, the 4th bullet (#D) defined a slightly different isotopic composition.

Three bullets taken at random from a box of NORMA 0.32 calibre ammunition in the possession of the suspect (Hitchen) were a perfect isotopic match with the three isotopically identical bullets from Carlyle’s body.  However, source of the fourth bullet (#D) remained enigmatic.

Four scenarios were suggested to explain the outlier bullet (#D):

  1. (1)
    It may represent a bullet from a different batch of Norma ammunition with a different 207Pb/206Pb and 208Pb/206Pb isotopic composition.
  2. (2)
    The bullet could have come from a different manufacturer.
  3. (3)
    There may have been a second gun involved in the murder.
  4. (4)
    The analysed Pb might have been contaminated by the brass casing.  This was considered the least likely scenario given the significantly lower Pb content of brass compared to the lead core in the projectile.  Furthermore, considerable care was taken to ensure that the analysed Pb came from one of the drill holes into the core of the bullet.

This present report was commissioned in April 2017 by Detective Mills to answer these questions.”[2]

  1. [19]
    Professor Collerson concluded:

6  Conclusions

This extensive Pb isotope investigation has identified the source of the two populations of bullets in the body of Carlyle.  These are shown again in Fig. 16, a plot of 208Pb/206Pb versus 207Pb/206Pb indicating that the bullets recovered from the body of Carlyle have two distinct isotopic compositions.  Bullets A, B and D are from the same batch of NORMA ammunition.  Bullet C is from a different batch of NORMA ammunition.

The current investigation indicates that this different batch of NORMA ammunition has exactly the same isotopic composition as that of the mixed bullet populations in Boxes A and B that were seized from Hitchens [sic] (Figs. 17 and 18).

There is also an indication from Box C for the presence of a third batch of bullets.  This accounts for the ‘outlier’ reported in the first Pb isotope investigation of this case (Collerson 2000 a and c).

Thus, the Pb isotope evidence presented in this report provides a strong link between the bullets in Carlyle and the NORMA ammunition in Boxes A and B that were seized from Hitchens [sic].

The mixed populations of bullets identified by the Pb isotopic data in this report strongly implicates Hitchens [sic] as being involved with the murder of Carlyle.  The timing and cause of mixing of bullets from the three different NORMA batches cannot be resolved.”[3]

  1. [20]
    The Crown wishes to argue, against the background of having the same steel jackets, calibre and weight, that the bullets from the two locations have the same isotopic ratio,[4] which could lead to an inference that they came from the same source, namely Mr Hitchen.  Counsel for the applicant has provided a summary of the methodology adopted by Professor Collerson which I shall adopt as accurate for the purposes of this ruling.  That analysis is as follows:[5]

“30. The crux of the methodology and analysis undertaken by Professor Collerson can be summarised in these terms:

  1. a.
     Lead has four naturally occurring stable isotopes.  The radioactive decay of uranium and thorium in the ore found in the earth create variations in the isotopic ratios occurring in these bodies of lead, and also reflect differences in the age of the lead sources;
  1. b.
     The lead isotopic composition of an ore body creates a unique ‘fingerprint’ of the source of the lead.  If lead is derived from a number of sources, through smelting or recycling (but not refining), the lead isotope compositions will also vary.  Mixtures of lead from a variety of scrap sources would yield random variations in the isotopic compositions of different batches of lead;
  1. c.
     Lead bullet samples were provided to Professor Collerson for testing, consisting of:
  1. i.
     The Carlyle bullets (four individual bullets);
  1. ii.
     The Hitchen bullets (three boxes of bullets containing 17, 49 and 34 bullets respectively);
  1. iii.
     12 bullets taken from four ‘randomly’ sourced boxes of bullets obtained from two suppliers in Queensland;
  1. d.
     A plasma mass spectrometer was used to determine the concentration of lead and other elements in each sample;
  1. e.
     The Carlyle bullets were found to have two distinct isotopic compositions, in that bullet C was interpreted to have come from a different batch of Norma ammunition;
  1. f.
     The Hitchen bullets also had a different population of isotopically distinct bullets (i.e., Box B contained 38 bullets with a shared isotopic composition and 11 bullets with a different shared isotopic composition);
  1. g.
     The Hitchen bullets comprised six different ‘batches’ of Norma bullets based on their distinguishable isotopic composition.  The Carlyle bullets each ‘matched’ one of these ‘batches’;
  1. h.
     The technique was described as an ‘emerging science’ and Professor Collerson confirmed his report was a chemical analysis, not a statistical analysis.  When asked if his report purported to express a likelihood ratio as to the connection between the bullets he responded ‘no, not at all’, and that it ‘wasn’t part of the scope of work’;[6]
  1. i.
     His 2017 report cited previous successful applications of this technique in homicide investigations; when pressed on the seeming absence of any such cases, Professor Collerson conceded in his evidence at committal that he ‘could agree’ his report was misleading in that respect.[7]
  1. The fact of those ‘matches’, without any further statistical analysis or probabilistic reasoning, was the basis for the opinion expressed that there was a ‘strong link’ between the Hitchen and Carlyle bullets.”

Professor Hibbert’s Evidence

  1. [21]
    Emeritus Professor, Professor Hibbert from the University of New South Wales also provided a Report dated 16 April 2020. This report is relied upon by the applicant.  Professor Hibbert was asked to provide an opinion as to whether “the use of isotopic ratios to purport to match lead based ammunition found in one location (here in the body of the deceased) as coming from the same ‘source’ as ammunition found in another location (here two boxes of ammunition found elsewhere) has been appropriately validated”. He was also asked to assess the methodology used by Professor Collerson
  2. [22]
    Professor Hibbert stated that whilst the measurement of the lead isotope ratios was skilfully done, he came to the following conclusion:

“…

SUMMARY

17 Professor Collerson is an established geochemist who is skilled in the measurement of lead isotope ratios in geological research.  Notwithstanding this, the methodology used by Professor Collerson in this case has not been formally validated and there is no Standard Operating Procedure for its use in forensic matters.  In particular: there is no measurement uncertainty budget, no statement of metrological traceability, no clear statement of the necessary form of the results to establish an isotope content, and no statement of the calculation of probability of a match.  Professor Collerson does not present proper measurement uncertainties, which would allow calculation of false positive rates.

18 In my opinion, if ‘evidentiary reliability is based upon scientific validity’,[8] there must be doubt about the reliability of evidence of lead isotope analysis presented in this case.

19 In declaring a ‘strong link’ between bullets in the victim and boxes of ammunition in evidence, Professor Collerson neither calculates the rate of a “false positive” match, nor the probability of a bullet in the victim coming from an unrelated collection of bullets.

20 In my opinion statements by Professor Collerson as to the matching of lead samples and inferences made are not supported by probabilistic or logical reasoning.”

  1. [23]
    On 28 April 2020, Professor Collerson provided a statistical analysis of his previous conclusions in response to Professor Hibbert’s Report, as follows:

“The bullets found in the victim had certain isotope ratio compositions that matched the compositions in two boxes of bullets of the defendant.

We wish to assess how likely this is to have happened by chance.

We can compare the situation with randomly throwing two balls (representing two boxes of bullets from the defendant) into n boxes, where

spread of possible measurements

Judgment-Image        n =

spread measurements within a box of bullets

The value for n depends on what isotope ratio measurements are considered. Take, for example, the 207Pb/206Pb. Here, range of values is [0.75, 0.98], giving a spread of 0.98 – 0.75 = 0.24.  The spread within a box of bullets is typically ***, so that n is here ***.

Having established an estimate for n for a some isotope ratio measurement, we now wish to assess the probability that two balls, randomly thrown into the n boxes, fall into 2 specific boxes (corresponding to the two groups of bullets found in the victim).  This probability is 2/(n x (n – 1)), i.e., approximately 2/n2.

Note that the isotope measurements could involve a combination of isotope ratios, as long as the two spreads mentioned above can be estimated accurately.”[9]

  1. [24]
    In his evidence Professor Collerson elaborated further on his calculations in response to questions from Counsel for the Crown as follows:

“Right. Now, you were - - -?---Yeah.

- - - testing the same bullets taken from the victim again two or three times, I gather?---We’ve tested them three times.

And did you get a variance in those results?---No.

What about in relation to the bullets taken from the various box – well, you didn’t test them on each occasion, did you?---No. But when we did the replicate analyses of bullets that had previously been analysed, we got the same result.

Now, in relation to probability of bullets in the victim coming from an unrelated collection of bullets, what do you say?---Well, this probability assessment that I’ve just done was done really specifically to possibly address that sort of a question. You know, really, the changes are one in 7 million to one in 300,000 or so.

Right. Is that – and is that the combination of all four – that you got four matches or just two matches? I - - -?---I’d say it takes into account the four matches that we have.

Right. Now - - -?---And can I just add there, and one of the – the aspects of interpreting isotopic data in the fields that I’ve been involved with would range from using it in archaeology to Ming Dynasty pottery to climate change studies – we look for patterns in data, and that’s the way we – we – that’s one of the – the key premises that we – we use, and this was a very, very close pattern. It’s a bit like the pattern you might get on the sole of a sneaker left as an imprint at a – at a scene.

With – I’ll – if there’s a standard print for a - - -?---Yeah.

- - - shoe that hadn’t been used - - -?---Yes.

That hasn’t been worn before. Are you saying that or when there’s defects in it?---When there’s defects in it.

Right. Now, Mr Hibbert makes a – criticises you for making a comparison between – well, an analogy made between lead isotype analysis and DNA analysis. What do you say to that?--- I would – I – in retrospect, my use of the term DNA was probably a little bit uncautious at the time. I would prefer to change that term to isotope fingerprint now, because that’s exactly what we’re doing. We’re using isotopes to fingerprint objects.”[10]

  1. [25]
    The Crown no longer wishes to assert a “strong link” between the two groups but rather sameness between the bullets from the two locations.

Is Professor Collerson’s Evidence Admissible?

  1. [26]
    The evidence of Professor Collerson is sought to be excluded on the basis that it is inadmissible.  In this regard, Counsel relies on three bases to argue the exclusion:
  1. The evidence should be excluded as it is more prejudicial than probative;
  2. It would be unfair to admit the evidence and it should be excluded in the exercise of the Court’s discretion; and
  3. It does not meet the common law preconditions for admissibility of expert evidence as set out in decisions such as Dasreef Pty Ltd v Hawchar.[11]
  1. [27]
    It would seem clear that this type of evidence has not as yet been relied upon in any criminal trial.  As is well known, expert evidence has a confined purpose in the context of a trial and the value of an expert’s evidence depends on their duty to provide the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions.  This enables the judge or jury to be able to assess the evidence based on their own judgment. 
  2. [28]
    In this regard I note the High Court decision of Dasreef Pty Ltd v Hawchar,[12] where the majority held that to be admissible under the Evidence Act 1995 (NSW), the evidence has to satisfy two criteria:  the first was the witness who gives the evidence had to have specialised knowledge based on their training study or experience; and second, that the opinion expressed in the evidence by the witness was based on that knowledge.  In Dasreef, an expert witness expressed an opinion about the numerical or quantitative level of exposure to silica encountered by the plaintiff.  The complaint in that case was that that opinion was not based on specialised knowledge of the expert, with such knowledge based on his training, study or experience.  That was because the expression “numerical or quantitative level” required explanation in the sense of assigning a value capable of use in a calculation. 
  3. [29]
    The Court held that if the expert expressed an opinion in those terms, in order for it to be admissible, it would be necessary to demonstrate that the expert had specialised knowledge based on his training, study or experience that permitted him to measure or estimate the amount of respirable silica to which a worker undertaking the relevant work would be exposed in the conditions in which the worker was undertaking the work.  It would then also have been necessary for it to be demonstrated that the expert opinion about the exposure was wholly or substantially based on that knowledge.  It was held that the expert did not give evidence asserting that his training or his study or experience permitted him to provide anything more than a ball-park figure of the amount of respirable silica dust.  Accordingly, it was held that there was no footing on which it could be concluded that the numerical or quantitative opinion which was expressed was based on a specialised knowledge, training or experience. 
  4. [30]
    As to the application of the criteria to the facts proved in the evidence in R v Lentini,[13] the Queensland Court of Appeal stated:

“[55] In a criminal trial, the jury is the constitutional arbiter of fact.  The task of the expert, therefore, is to furnish the jury with the necessary scientific criteria for testing the accuracy of the jury’s own conclusions to enable it to make its own independent judgment by the application of those criteria to the facts that it finds.[14]  A jury is not bound to accept an expert opinion as conclusive even if there is no contrary evidence because such a requirement would constitute an impermissible encroachment upon the jury’s function - and duty - to find the facts.[15]  Of course, as with all evidence, a jury’s acceptance and rejection of expert evidence must be rational.”

  1. [31]
    In the Victorian Court of Appeal decision of Tuite v The Queen,[16] the court referred to the difficulty presented by a new statistical methodology which was being relied upon in that case, which related to the statistical evaluation of DNA profiles including a fully continuous probabilistic system STR mix.  The court discussed the attempts that had been made over the years to develop tests for the reliability of expert evidence and the important distinction between the reliability of the underlying science and the reliability of the particular methodology or theory on which the expert’s opinion is based.  The court acknowledged that there is often a consensus that the underlying science is sound but noted that there may be no legal or scientific consensus with respect to the analysis and interpretation of that evidence, and that the key question was whether the processes involved in the analysis had been adequately validated. 
  2. [32]
    So the real question here is whether the methodology used by Professor Collerson to formulate his conclusions has been accepted by the scientific community as reliable and accurate.  Not only must the system has been validated by men and women of science and found to be accurate and reliable but must also be accepted by them for use in the forensic context.[17]
  3. [33]
    There can be no doubt that the trial judge can exclude expert evidence in the exercise of their discretion if they are dissatisfied about the reliability and probative value of the evidence.[18]  In the decision of R v Bonython,[19] the court held that the question whether a new technique, technology or methodology can be the subject of expert evidence requires that there be a “sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence”.  As the Queensland Court of Appeal said in R v Baxter,[20] it has to be established that this is an area of expertise. 
  4. [34]
    I accept that Professor Collerson is clearly a well-qualified geochemist, and, as Professor Hibbert acknowledges, there is no question about the raw data he has produced in relation to the isotopic composition of the lead he has analysed and the underlying science for the extraction of that information.  The question here is whether there is a scientific basis for the ultimate conclusion he draws and whether there is a legal and scientific consensus with respect to his analysis and interpretation of that data; that is, have his methods in this regard been “adequately validated”.[21]  This was discussed in Tuite in relation to DNA evidence the following terms:

“His Honour quoted the following US guidelines in relation to validation:[22]

Validation is the process used by the scientific community to acquire the necessary information to assess the ability of a procedure to reliably obtain a desired result, determine the conditions under which such results can be obtained and determine the limitations of the procedure. The validation process identifies the critical aspects of a procedure which must be carefully controlled and monitored.

Validation studies must have been conducted by the DNA laboratory or scientific community prior to the adoption of a procedure by the DNA laboratory.[23]

Mullighan J concluded that, on the evidence before him, the methodology relied on had been adequately validated.  The validation studies had been

conducted without error and produced results which enabled the Forensic Science Centre to establish appropriate standards and protocols, including threshold levels which permit accurate and reliable analysis and interpretation of results, including for example with low levels of DNA[24]”.

  1. [35]
    Accordingly it is important to understand the procedure and methodology that Professor Collerson followed after he obtained the raw data about the isotopic ratios of the lead.  At committal, he was asked by Counsel for the applicant the following question:

“First of all, let’s assume that two bullets do have the same isotopic signature that has been calculated in the way you’ve described.  What is made clear in the literature and as a matter of common sense is that very little use can be made of such a comparison without some precise detail about Norma’s production process.  Would you agree with that?  --- I would agree with that.  Yeah.”[25]

  1. [36]
    He agreed that you would need to know how many pigs of lead were procured and you would need to know the source of the lead, that is, whether it was scrap or from a mine.  He then agreed you would have to know how many strings or wires of lead were produced, and then you would need to know how many bullets were produced from each one of those strings.  He conceded that whilst that would not make a difference to the lead isotopic composition, it would make a difference to the statistical conclusions to be drawn from the comparison.  He also agreed you would need to know whether the bullets were mixed in other batches while they were being held in stock.  He agreed that:

“And, for any valid statistical conclusion to be drawn, you would need to know, wouldn’t you, when and where boxes of bullets were distributed?  --- You would. And it was hearsay, but my understanding’s that Norma was not a very widely distributed manufacturer of bullets in Australia.”[26]

  1. [37]
    He agreed that was as much information as he could get, and he agreed that:

“All those things are things which, I think you’ve agreed that, are necessary in order to perform an exercise in statistical probability about the location of this sort of ammunition in any given place at any given time?  Is that right? --- Yes.”[27]

  1. [38]
    In his evidence before me Professor Collerson was once again asked about the production of ammunition and the statistical analysis he had done on 28 April 2020 as follows:

“Right. Thank you. In addition – and again, for reasons I’ll come back to – you would accept, wouldn’t you, that it’s likely, at least, that those ammunition manufacturers might have different approaches to the way in which they choose to box and distribute bullets once they’re made out of that coil that you chose – that you showed us?---I am not privy to aspects of the manufacturers’ distribution policy.

I - - -?---So I couldn’t answer that question.

No. And I guess – let’s just come to the rub of it on that point. As I understand the new statistical analysis that you’ve done yesterday, at its heart, or one of the core components of it is the notion of a box of ammunition, isn’t it?---Yes.

And what, if anything, do you know about the way in which manufacturers of ammunition choose which bullets from which manufacturing lot are going to go into any particular box?---I – as I’m not involved in the manufacturing of bullets, I really couldn’t give an opinion on that question.”[28]

  1. [39]
    Professor Collerson ultimately accepted that it matters how boxes of ammunition are put together if that is going to be the denominator of a statistical study. He also agreed that a mature statistical study would need that information.[29]  Professor Collerson also accepted that he had been told that the bullets found at the scene were Norma brand bullets and that he proceeded with his reports and analysis on that basis.  After further questioning in relation to the lack of a data set, Professor Collerson also accepted that there was a need for a more stringent approach to the classification of “bullets to boxes”.[30] 
  2. [40]
    Professor Collerson also accepted that there was a critical distinction between “… the chemistry process and the next stage, which is to – having identified sameness, to try and figure out what the significance of that sameness is.”[31]  Mr Holt QC then asked the follow questions:

“And we talked a little bit about DNA, or you have, with our learned friend Mr Meredith. So, indeed, the capacity to compare a particular item that you’re talking about with – or the feature of a particular item you’re talking about with the regularity with which that feature appears in the population is what you need in order to figure out whether the sameness matters, isn’t it?---Yes.

Right. And ultimately, what I want to suggest – can I just say this. So for all of these questions that I’m going to ask you now, I want you to proceed on the basis, as I am, that your machines are brilliant, your lab is wonderful, you’re a fabulous geochemist, and these numbers are correct. Okay?---Right.

Thanks. So the first thing we need to know about – so what I’m really interested in here, I’m sorry, is that next phase, the does the sameness matter phase. Right. And you’ll understand it’s the same thing in DNA. So describing two people’s DNA is one thing, but attributing a probabilistic meaning to that as to whether something has come from the same person is a different question, isn’t it?---Yeah.

Yeah. And it’s a question ultimately abounded or driven by statistics – by statistical and probabilistic reasoning?---Yes.

Yes?---Yes.

And it’s driven by empirics, isn’t it, by numbers?---It’s driven by data.

Yeah. By data. Much better. Absolutely. Driven by data. And one of the things you need to know, of course, is the total population that you’re dealing with of things. Yes?---Yes.

What is the total population in the – no. Just let me ask the question. I can see what the answer is already from your headshake but let me ask the question. What is the total population of .32 calibre lead bullets in the world?---I have absolutely no idea.

Would you hazard that it would be at least hundreds of millions per year, or would you not even hazard?---I wouldn’t even guess.

Just a terrifically big number in any event?---A big number, probably.”[32]

  1. [41]
    I have been referred by Counsel for the applicant to the 2016 Report to the President “Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods”.[33]  The Report contains a “Summary of Scientific Findings” which states that to establish foundational validity for a forensic feature comparison method, the following elements are required:

“(a)  a reproducible and consistent procedure for:

  1. (i)
    identifying features in evidence samples;
  2. (ii)
    comparing the features in two samples; and
  3. (iii)
    determining, based on the similarity between the features in two sets of features, whether the samples should be declared to be likely to come from the same source (‘matching rule’); and
  1. (b)
     empirical estimates, from appropriately designed studies from multiple groups, that establish:
  1. (i)
     the method’s false positive rate – that is, the probability it declares a proposed identification between samples that actually come from different sources; and
  1. (ii)
     the method’s sensitivity – that is, the probability it declares a proposed identification between samples that actually come from the same source.”[34]
  1. [42]
    The Summary further states that scientific validation studies should satisfy a number of criteria.  In particular:

“(a) They should be based on sufficiently large collections of known and representatives samples from relevant populations;

  1. (b)
     they should be conducted so that the examinees have no information about the correct answer;
  1. (c)
     the study design and analysis plan should be specified in advance and not modified afterwards based on the results;
  1. (d)
     the study should be conducted or overseen by individuals or organizations with no stake in the outcome;
  1. (e)
     data, software and results should be available to allow other scientists to review the conclusions; and
  1. (f)
     to ensure that the results are robust and reproducible, there should be multiple independent studies by separate groups reaching similar conclusions.

Once a method has been established as foundationally valid based on adequate empirical studies, claims about the method’s accuracy and the probative value of proposed identifications, in order to be valid, must be based on such empirical studies.”[35]

  1. [43]
    Having considered the conclusions which Professor Collerson seeks to draw, I am not satisfied that the methodology employed satisfies the criteria which have been set out as necessary to establish a foundational validity for a forensic feature comparison method.  In particular, in this regard, I have been referred to an article entitled Applications of LA – ICP – MS to Forensic Science.[36]  In that article,[37] the authors indicate that in relation to the progression from research to method validation to acceptance in court, it is necessary that new analytical methods for forensic application undergo a progression from fundamental research to method development. Then after validation in several different forensic laboratories and publication of the results, there needs to be the development of an international consensus on standard methods of analysis. It is only after those steps have been complied with that the methodology can progress to courtroom use and acceptance. 
  2. [44]
    As the authors highlight, there must be an evaluation of the scientific validity and practical utility of the method together with an identification of the method’s capabilities and limitations.  The article acknowledges the importance of these steps because the conclusions of forensic examinations play a significant role in helping juries and judges reach a decision in relation to guilt or innocence.  The authors emphasise the importance of the research phase and the validation phase which involve a clear understanding of the sample features such as the chemical and physical nature of the sample as well as the manufacturing process and sources of trace elements together with the variation of raw materials within different manufacturers, different batches and different production lines, as well as warehouse, packaging and distribution processes.  The authors indicate that the second phase includes a thorough validation of the method within the scientific community and the importance of international standard methods to provide support to the scientific validity of the methods and it would not be until that was accomplished that it would be advanced to routine use and acceptance in courts.
  3. [45]
    In Professor Collerson’s evidence under cross-examination, I note the following exchange in response to questions from Counsel for the applicant:[38]

“Now, in terms of that second – the evaluation question, the probabilistic reasoning, the question of whether the sameness matters or not, can I respectfully suggest that we’re really in the first research phase of the second paragraph. We’re gaining a clear understanding of other sample features. We’re certainly not at the third phase, are we?---We would not – well - - -

Well, you’ve just said we don’t have a database?---No, we just don’t have the database.

No?---The only database we have is the data that’s been published in the literature of different bullets’ isotopic compositions.

Yeah. And that’s not a database in any sense, is it?---Well, it is a database.

Well - - -?---It’s what we have available.

Well, I suppose, three things in a row are a database?---And we – and we know what  – from isotope principles what the potential ranges of compositions are going to be –

Yeah?--- - - - from evolving from the age of the Earth with the isotopic compositions that we had in uranium and lead and thorium and lead.

Sure. Professor, we’re talking here about the issues you and I have just been discussing?---Yeah.

The absence of a database, the absence - - -?---Yeah.

- - - of any knowledge about the total population, the absence of any knowledge about the – about production, manufacturing, all of those sort of things which this makes clear you’ve got to validate, right?---Clear, yeah.”

  1. [46]
    In conclusion, he agreed with the following proposition:[39]

“But in terms of this piece of work here, there’s still a fair whack of work to go, isn’t there, to get to – to get to a point of scientific acceptance and validation around this probabilistic reasoning question?---I – I’d agree with that, yeah.”

  1. [47]
    A further article to which I have been referred, Forensic Science in Criminal Courts: The Latest Scientific Insights,[40] reinforces the proposition that scientific validity and reliability must be demonstrated through empirical studies.  The authors note that the President’s Council of Advisors on Science and Technology (PCAST)[41] draws on the scientific discipline of metrology to define scientific validity and reliability:[42]

“For a metrological method to be scientifically valid and reliable, the procedures that comprise it must be shown, based on empirical studies, to be repeatable, reproducible, and accurate, at levels that have been measured and are appropriate to the intended application.[43]

This selection was conditioned by the fact that the ‘feature-comparison methods… all belong to the same broad scientific discipline, metrology, which is “the science of measurement and its application,” in this case to measuring and comparing features’.[44]

The key constructs that comprise scientific reliability are defined:

By ‘repeatable’, we mean that, with known probability, an examiner obtains the same results, when analysing [sic] samples from the same sources.

By ‘reproducible’, we mean that, with known probability, different examiners obtain the same result, when analyzing [sic] the same samples.

By ‘accurate’, we mean that, with known probability, an examiner obtains correct results both (1) for samples from the same source (true positives) and (2) for samples from different sources (true negatives)[45].”

  1. [48]
    The authors go on to link this conception of validity to expert evidence presented in court, noting that “[w]ithout insight into validity as well as limitations, accuracy and error jurors (and judges) are likely to overestimate the value of forensic science evidence[46]”.[47] They elaborate further, stating that:[48] 

“It has become increasingly clear in recent years that lack of rigor in the assessment of the scientific validity of forensic evidence is not just a hypothetical problem but a real and significant weakness in the judicial system… reviews by competent bodies of the scientific underpinnings of forensic disciplines and the use in courtrooms of evidence based on those disciplines have revealed a dismaying frequency of instances of use of forensic evidence that do not pass an objective test of scientific validity.[49]

  1. [49]
    An analysis of the evidence which is outlined above causes me very real concerns about the factual basis for the analysis conducted including the size of the sample used, a lack of real information about the production process and the uncertainty in relation to what constitutes a batch of ammunition.  In his written submissions Counsel for the applicant refers to what Professor Collerson’s report does not contain:[50]

“a.  Any review or consideration of the manufacturing, packaging, storage or distribution processes for Norma ammunition, and how that bears upon whether a lead body could rationally be characterised as truly ‘unique’;

b. Any attempt to quantify and characterise the total population of Norma ammunition of which these samples are subsets;

c. Any statistical analysis as to how the necessary assumption that every box of Norma ammunition has a unique isotopic composition can be supported; and

d. Any accuracy analysis of how applying the lead data to a probability comparison could result in errors or false positives in the results.”

  1. [50]
    Furthermore, as Counsel for the applicant argues, there is a need for an underlying data set or population which is wholly absent in this case. Without this underlying data set, the second stage of data matching cannot be undertaken scientifically. 
  2. [51]
    It would seem to me that Professor Collerson is seeking to apply a forensic feature comparison method at a point in time in which his analytical methodology has not as yet been accepted by the scientific community.  In particular I am not satisfied it has reached the point of method validation given that the method used has not been based on empirical studies and accepted as foundationally valid.  It is a new area of scientific investigation and I do not consider it has yet reached the stage where it could be considered to have fulfilled the minimum standards for forensic analysis of data matching and comparison. 
  3. [52]
    Indeed, under cross-examination at the hearing, Professor Collerson accepted that lead isotope analysis (in the context of purporting to match lead based ammunition found in one location to ammunition found in another) is an emerging science as follows:[51]

MR HOLT: - - - I think, in volume 3 of the materials, and this is at day 1, line – page 84. So 1-84. And you were being asked questions by – it wasn’t me, it was by Mr Callaghan, as his Honour then was - - -?---Yes.

- - - where he was asking you about, at line 35, the comparison with DNA:

We’re used to hearing in the context of DNA that something is consistent with one in 5 billion population or something like that.

?---Yeah.

And you were asked is there a – there’s no such formula that applies to this science? And your answer was:

Not as yet, because this is an – still an emerging science, as is reflected in the few papers I did cite in this report.

?---Yeah.

So emerging science here – you were putting it very correctly, in my respectful suggestion to you – very correctly in the context of the capacity to do probabilistic reasoning about likelihood ratios and the like?---I was referring to it as an emerging science in terms of the application of high precision lead isotope ratio measurements to forensic cases. The way you take it further is, you know, your argument, the probabilistic directions.

Right?---I – I was purely talking about the ability to get high precision isotope ratio measurements of data that may represent evidence in forensic cases.

Can I suggest that that can’t be right, given that the questions were – that comment was preceded by a precise discussion about whether or not a formula such as is found in DNA - - -?---Yeah.

- - - of one in five billion, for example, can apply here, and you said:

Not as yet, because this - - -

?---No.

Continuing:

- - - is still an emerging science, as is reflected in the few papers I did cite in this report.

?---Yeah. I’d agree with that.

Right?---Yeah.

Now, in addition, can I ask you to have a look – sorry. I’ll refer to page 1-103 of the committal. Now, just before I ask you these questions – and I will be asking you in a little moment a lot about – I’m just going to say Sjastad, because I can’t even remember how I pronounced it earlier – the Sjastad reports. One of the – we talked about the criticality of understanding the population before if you’re going to do probabilistic reasoning?---Yes.

Do you recall that? And there are a number of ways of understanding the population, aren’t there? For example, the DNA databases that operate in the world don’t operate on the basis that they’ve got DNA from every single human being in the world, do they?---Not that I’m aware.

No. And what you expect, though, is to have a dataset which is big enough to give you statistically sound conclusions. Yes?---Yes.

To allow you to drive an understanding of the features of the population and whatever it is you’re talking about such that you can do a meaningful comparison for the item that you’re dealing with. Yes?---Yeah.

And that’s the idea of building up a database. Here, if we can move it into context, a database of the distribution of stable isotopic ratios among bullets – boxes of bullets in the world. Yes?---Correct. Yeah.

And bearing all of that in mind, at page 1-103, at line – starting at line 4, it was suggested to you – in fact, the words were:

I’d suggest that in some way the science is still in its infancy because there is nothing in print that provides the objective criteria that would allow someone else other than you to perform that analysis without your background experience.

And you said:

With respect to bullets, possibly.

Do you see that?---Yeah.

I’m sorry. Do you accept that?---Yes.

But with respect to the interpretation of isotopic data relevant to minerals and rocks and ore bodies, the dataset is available and is quite definitive, and let’s accept that?---Yes.

Right. There is terrific data – I think you’ve been responsible for quite a lot of it?---Yes.

Terrific data about rocks and minerals and their state of isotopic ratios that allow you to compare things that have come from certain mine sites or in certain geographic locations. Right?---Correct.

And then the comparison is drawn with bullets here, because Mr Callaghan says:

Right. Right. But we’re talking about bullets.

?---Yes.

And you say that’s right. And then you say:

And I suspect that with – you know, as more people are applying this, we will – utilising Sjastad’s ideas, we will be developing that database.

?---Yes.

Right. And Sjastad’s ideas are the ideas that, in particular, he was putting forward in that work in 2016 about how you might do this probabilistic reasoning?---Yes.

And one of the critical weaknesses – and I’ll take you to it – that he identified, perfectly properly, was that the amount of data available to understand the population was really limited?---Yes.”

  1. [53]
    I am not satisfied that Professor Collerson’s reports or his oral evidence meet the preconditions for admissibility of expert evidence and they should therefore be excluded.  Clearly this evidence, given it does not meet the threshold test for scientific validity, if it were to be admitted would clearly be more prejudicial than probative because if it is not scientifically valid, it has low probative value. 
  2. [54]
    Section 130 of the Evidence Act 1977 (Qld) provides:

130 Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

  1. [55]
    In his outline of submissions, Counsel for the applicant stated that it would be “profoundly unfair to admit evidence of the fruits of an inadequately validated novel scientific technique”.[52]
  2. [56]
    I am satisfied that in the circumstances I have outlined above, it would be unfair to admit reports that are not properly validated and are not produced utilising an established scientific method accepted by the scientific community. 

The Ammunition Evidence

  1. [57]
    The Crown accepts that the evidence it wishes to lead about the ammunition evidence is only relevant if the evidence of Professor Collerson on the similarity of the isotopic ratios is admissible.
  2. [58]
    In this regard the Crown wishes to rely on evidence from 130 ammunition suppliers in Queensland about the quantities of .32 calibre ammunition they had during the relevant period as well as the evidence of ballistics expert Michael Keller.  As is now apparent I have excluded Professor Collerson’s reports but it is also significant in my view to understand the fundamental difficulties that were inherent in reliance on this evidence.

Evidence of Mr Michael Keller

  1. [59]
    Retired ballistics expert Michael Keller gave evidence at the Committal[53] that .32 calibre bullets can be loaded into a wide range of semi-automatic pistols, as well as some long armed weapons.[54]  He gave evidence that a variety of companies make and supply ammunition, and that such ammunition can be bought through a retailer.[55]  He also gave evidence that in addition to buying factory loaded cartridges, it is possible to buy components to load your own or reload your own ammunition and that one of those components were projectiles.[56] 
  2. [60]
    Mr Keller did not disagree with the proposition that “you cannot say that the bullets found in the deceased and under the deceased, were, in fact, fired from loaded Norma ammunition, as opposed to being Norma projectiles that had been hand-loaded by someone”.[57]  He agreed that there is nothing about the projectiles that would allow him to determine whether they were fired from a Norma factory-loaded cartridge or from a hand-loaded cartridge.[58] 
  3. [61]
    He also stated he did not know how many Norma projectiles were imported into Australia between when they first started producing .32 calibre ammunition and the date of the killing.[59]  He also did not know how many .32 calibre Norma factory rounds of ammunition were imported into Australia.[60]  He gave evidence that Norma records showed that they had not shipped any .32 ACP to Australia between 1992 and 1997 and that delivery records more than five years older than that had been destroyed.  Accordingly they were unable to tell how many cartridges were delivered to Australia prior to 1992.  The records indicated however that in the period 1990 to 1996, Norma had produced 825,000 .32 calibre 77 grain bullets.  They were therefore unable to tell him how many .32 ACP 70 grain bullets were produced prior to 1990, how much lead they had purchased, or where they had purchased it from.  They could not say how much of that ammunition was shipped to Australia either as factory loaded ammunition or as projectiles.[61]
  4. [62]
    In conclusion, he stated:

“Yes, well, in view of the fact that we – even assuming the premise that all of the lead in a single charge has a uniform isotopic ratio which can be used for identification purposes – even making that assumption or accepting that as fact, we don’t know how many 32s were made from the charge in question.  We don’t know how many of those 32s or how many production runs of the bullets or loaded ammunition that lead wire was used in. And we don’t know how much of that quantity of ammunition was exported to Australia, and, furthermore, we don’t know how much of that quantity, if any, was still in circulation.

… in view of all of those unknowns, it’s impossible to put any weighting on the similarities.”[62]

  1. [63]
    Given my conclusions in relation to the admissibility of Professor Collerson’s evidence, the evidence about the quantity of Norma .32 calibre bullets in circulation at the time of the murder in April 1997 is also excluded.

The Qantas Email Evidence

  1. [64]
    As has already been indicated, the Crown wishes to rely on an email sent from the Qantas Lounge, to Mr Carlyle at his work email on Sunday, 23 February 1997 at 6.35pm from a person calling themselves Brian Jones and using the [email protected] email address. The email contained a threat that the sender wanted his “money in full” and indicated that it was “a friendly warning this time… pay up by the next Tuesday”.  Mr Carlyle replied the next day stating “[w]e do not know who you are or what you are referring to with your letter of demand. Perhaps you can explain yourself a little more”.
  2. [65]
    The evidence that the Crown wishes to lead is that of Michael Preece, a Qantas security investigator.  Mr Preece gave a statement which indicated that the applicant was due to fly from Sydney to Coolangatta on a Qantas flight on the evening of 23 February 1997 and that he checked into his flight at 6.01pm.  It would seem that the applicant and Mr Carlyle had travelled to Sydney together but that Mr Pentland had stayed in Sydney after Mr Carlyle had returned two days earlier.   Mr Preece also stated that “[a]s at 23 February 1997 the Qantas Club at Sydney Domestic Terminal had seven computer terminals which had Internet E-Mail access. No records are kept of persons using the Qantas Club at Sydney or persons using the computer terminals”.[63]
  3. [66]
    The Crown also seeks to rely on the evidence of Nicholas Freda who gave a statement to police in 1999.  Counsel for the Crown argues that the evidence is relevant and admissible as it establishes that the applicant was in a position to send an email from the Qantas lounge at the relevant time and that the email was sent from a non-existent account.  It is also argued that it links the applicant to both Mr Carlyle and Mr Hawney (Horny) in circumstances where there was clear antagonism between the two.
  4. [67]
    At the time he made the statement Mr Freda was a service desk operator for the internet provider Ozemail and as such had some knowledge of its systems and how “emails will bounce to server to server in order to travel to their intended recipient…”[64]  His evidence under cross examination at Committal included the following:[65]

“Right.  The subject email that we’re interested in is an email that was sent from this address [email protected] [sic] on the 23rd of February 1997 to Mr Carlyle.  Was that – and again, I’d ask you to differentiate between that which you can recall distinctly and if you can’t, that’s fine – was that an email address that was connected to a registered or pre-existing account with Aussiemail [sic]?---I – I couldn’t tell you.  The address could have been made at any time.  It’s – that’s – that’s how they work.

Right.  So the fact that it was sent from the Qantas lounge did not require an account to be made in that name before an email could be sent from that address?---Technically, yes because it has – you need to create the account to get through to the Aussiemail [sic] servers authentication service, at the time, to use the email, but yes, if it went through the Aussiemail [sic] servers, yes, it had to be part of the Aussiemail [sic] servers mail range.

Okay?---There had to be an account registered with Aussiemail [sic].”

  1. [68]
    Mr Freda gave the following evidence at the Committal in relation to the IP address:[66]

“How do you establish what the originating IP address is to work out where the email in fact came from, in this circumstance, it’s said to be Qantas?---All emails have a – associated headers, and all the headers have several bounce – have every level of bounce that it goes through.  That’s just the way the system used to work.

Right. And how do you then know when you’ve reached the end or the beginning destination in that that was the originating address and not something else?---That’s – basically the only way – like, it can be faked, but it’s very rare, but basically each hop that goes from one server to next [sic] places its own distinct address on the – on the email.  So for some emails you can see, if you look at the mail headers, it’ll have every single hop going from each server to each, and at each – each level records either the domain name, the address, or the IP range.

You said it’s possible to fake, just so I understand that, was there a capacity at the times, or a possibility – not getting into the technical details, but did the technology exist at that time to somehow duplicate or mask what the originating IP address would have been?---Yes, but it’s [sic] would have had to been [sic] done by somebody who actually understood the whole system, and – and been able to make those changes.  It was – it’s not like an app or a program, you had to actually know what you were doing a long time ago.

And what, just so I’m clear, understand the system, understand which system?---Whatever system the mail system was using - - -

Right?--- - - - Lennox – or - - -

So not necessarily Qantas systems or network - - -?---No.

- - -  the system that they were using - - - ?---The Qantas system had nothing to do with it - - -

Yes?--- - - - that – that was just the carrier.  We’re talking about the mail server identity and all the rest of it.

Right. And thank you, that was my next point.  So the Qantas network, as such, is irrelevant to this process, expect for the fact that it provides a [sic] app or a program of some description which sends the email?---That’s correct.

Okay.  Just so I understand, if a reply had been sent from Mr Carlyle’s account to [email protected] what would have happened?---There would have been a response sitting in the mail server under that account name.

What if there was no account name, looking at our scenario before?---Would have – there would have been a bounce from the mail system to wherever it came from saying that this address doesn’t exist.

And there’s no – again, going back to that first point, it’s got nothing to do with the terminal at the Qantas - - -?---No.”

  1. [69]
    Mr Freda was also asked about the account in the name of Brian Jones as follows:[67]

“How did you know that BJ stood for Brian Jones?---That would have been the account that was associated with this – with this name in the system.

And how could you be told that?  Does that – sorry – does that presuppose that the account existed?---It does presuppose that, yes.

So it had been registered and it had been registered under the name of Brian Jones?---Yes.

Okay.  Were you given any information about – sorry – did you go back into the Aussiemail [sic] system and check that account?---I would have at the time, yeah.

Sorry again, just be very clear on words - - -?---Sorry.

- - - do you specifically recall that you did?---I – I don’t specifically.  No, sorry, I don’t.”

  1. [70]
    Counsel for the applicant argues that it is unfair to admit the evidence of Mr Freda which was contained in a statement he had made 23 years earlier given that it is now impossible to do the necessary investigations to explore the account in the name of Brian Jones and whether it was in fact a false account or linked in any way to the applicant, given the effluxion of time.  I accept that properly understanding and testing the web-based email program and Qantas IT systems as they were in 1997 is now seemingly impossible.
  2. [71]
    It is further argued that as the applicant denied any knowledge of the email at the time and as police did not investigate it any further, he had no reason to make any inquiries of his own with respect to that email or its underlying information.  The applicant is now disadvantaged by the delay as investigations about that account can no longer be pursued, particularly in relation to the provenance of the email and the details of the underlying account.
  3. [72]
    However, the evidence the Crown wishes to lead has technical inadequacies as exposed by Counsel at the committal.  Furthermore, there are some arguments as to why the applicant was not the author of the email.  It would seem to me as a matter of logic that if it was intended as a threat it falls short in many ways as the email is obscure and Mr Carlyle does not apparently know who it is from given his response.  In addition there is nothing on the face of the email linking it to Mr Pentland as there is no reference to a particular debt. It is also clear, given there had been a creditors meeting in February 1997, that Mr Carlyle owed money to a lot of people and all of them knew Mr Hawney had been engaged to convene the meeting of creditors.  I also note that Mr Carlyle responds on behalf of the company and not personally. 
  4. [73]
    Accordingly it would seem to me that the inadequacies in the evidence can be fully explored before the presiding judge just as it was in the committal.  The trial judge can also determine the weight which can be attributed to the evidence given the inadequacies and failure by police to fully investigate the Ozemail email account at the time.
  5. [74]
    I do not consider therefore that the evidence is more prejudicial than probative and I do not consider it should be excluded pursuant to the fairness discretion and s 130 of the Evidence Act.

List of Witnesses and Exhibits and Evidence Intended to be Lead

  1. [75]
    As was discussed on day two of the hearing,[68] given the size of the brief, the fact that the matter concerns a cold case murder and the long list of potential witnesses, it is appropriate that a list of witnesses and exhibits, as well as redacted witness statements (indicating the evidence intended to be led at trial) be provided to the defence.  Doing so will ensure, as was submitted by Counsel for the applicant, that any additional admissibility arguments, particularly in a judge-alone trial context, are not entered into on the morning of the trial commencing.[69]
  2. [76]
    In addition to indicating that this aspect of the application would not be objected to,[70] Counsel for the respondent indicated that an appropriate timeframe within which to provide the material required pursuant to the application would be close of business two weeks after the day that my ruling in this matter is handed down.[71]
  3. [77]
    I am satisfied that an order in those terms should be made.

Orders

  1. [78]
    Accordingly, I make the following orders:
  1. The expert reports and the evidence of Professor Kenneth Collerson are excluded.
  2. The evidence concerning and related to the importation, supply and distribution of Norma brand ammunition in Australia is excluded.
  3. The application to exclude the statement and evidence of Nicholas Freda is refused.
  4. The prosecution is to provide a list of witnesses and a list of exhibits setting out the evidence it intends to lead at trial to the defence by 4pm Monday 1 June 2020.

Footnotes

[1]  T1-17 ll 44-45.

[2]  At p 3.

[3]  At p 24.

[4]  T2-3 ll 6-15.

[5]  Defendant’s Outline of Submissions dated 2 April 2020 at pp 8-9.

[6]  Committal Transcript p 1-95 l 20.

[7]  Committal Transcript p 1-91 l 15.

[8]Tuite v Queen [2015] VSCA 148 [101]. Discussed in Edmond, G.; Found, B.; Martire, K.; Ballantyne, K.; Hamer, D.; Searston, R.; Thompson, M.; Cunliffe, E.; Kemp, R.; San Roque, M.; Tangen, J.; Dioso-Villa, R.; Ligertwood, A.; Hibbert, D.B.; White, D.; Ribeiro, G.; Porter, G.; Towler, A.; Roberts, A.: Model forensic science. Australian Journal of Forensic Sciences 2016, 48, 496-537.

[9]  At p 1.

[10]  T1-60 ll 1-40.

[11]  (2011) 243 CLR 588 at [93].

[12]  (2011) 243 CLR 588 at [30].

[13]  [2018] QCA 299 at [55].

[14]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729-730 per Heydon JA citing Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40, 42.

[15]  Ibid.

[16]  [2015] VSCA 148.

[17]  R v Karger (2001) 83 SASR 1.

[18]  Dupas v The Queen (2012) 40 VR 182 at [125].

[19]  (1984) 38 SASR 45, 47.

[20]  [2019] QCA 87 at 26, [129].

[21]Tuite at [91].

[22] The guidelines were published by the body now known as the Scientific Working Group on DNA Analysis Methods (SWGDAM), which has published current, equivalent guidelines: Scientific Working Group on DNA Analysis Methods, Validation Guidelines for DNA Analysis Methods (2012).

[23]  The wording of the corresponding National Association of Testing Agencies (NATA) standard was identical:  R v Karger (2001) 83 SASR 1, 99 [140], [461].

[24]  Ibid [543] (emphasis added).

[25]  Committal Transcript p 1-93 ll 6-11.

[26]  Committal Transcript p 1-94 ll 31-35.

[27]  Committal Transcript p 1-95 ll 6-9.

[28]  T1-70 ll 31-46.

[29]  T1-71 ll 14-18.

[30]  T1-89 l 47.

[31]  T1-73 ll 45-46.

[32] T1-74 ll 12-47.

[33]  Executive Office of the President – President’s Council of Advisors on Science and Technology (September 2016).

[34]  At p 65.

[35]  At p 66.

[36]  José Almirall and Tatiana Trejos, in Elements (Vol 12), pp 335-340.

[37]  At p 336.

[38]  T1-88 l 29 – 1-89 l 11.

[39]  T1-100 ll 32-34.

[40]  Gary Edmond and Kristy Martire (2016) 42 Australian Bar Review 367.

[41]  Which authored the 2016 Report to the President “Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods” (“PCAST Report”) referred to above at [41].

[42]  At p 371.

[43]  PCAST Report at p 47.

[44]  PCAST Report at p 23.

[45]  PCAST Report at p 47, Box 2.

[46]  PCAST Report at pp 9, 149. Exaggeration and overestimation are forms of unfair prejudice to the defendant. See also G Edmond, ‘Icarus and the Evidence Act: Section 137, probative value and taking forensic science evidence “at its highest”’ (under review).

[47]  At p 373.

[48]  At p 377.

[49] PCAST Report at p 22.

[50]  At 19 [72].

[51]  T1-82 l 39 – 1-85 l 15.

[52]  At 22, [87].

[53]  Committal Transcript p 3-7 l 30 – p 3-17 l 10. 

[54]  Committal Transcript p 3-8 l 45 – p 3-9 l 3.

[55]  Committal Transcript p 3-10 ll 3-8.

[56]  Committal Transcript p 3-10 ll 16-20.

[57]  Committal Transcript p 3-11 ll 38-44.

[58]  Committal Transcript p 3-12 ll 24-26.

[59]  Committal Transcript p 3-12 ll 1-3.

[60]  Committal Transcript p 3-12 ll 5-7.

[61]  Committal Transcript p 3-13 l 9 – p 3-15 l 13.

[62]  Committal Transcript p 3-16 ll 18-29.

[63]  Statement of Michael John Preece taken on 7 May 1999 at pp 3-4, [13].

[64]  Committal Transcript p 2-46 ll 41-44.

[65]  Committal Transcript p 2-47 ll 5-20.

[66]  Committal Transcript p 2-48 l 33 – 2-49 l 33.

[67]  Committal Transcript p 2-50 ll 6-21.

[68]  T2-7 l 7 – 2-8 l 4.

[69]  T2-8 ll 10-16.

[70]  T2-7 ll 12-17.

[71]  T2-9 ll 25-38.

Close

Editorial Notes

  • Published Case Name:

    Pentland v The Queen

  • Shortened Case Name:

    Pentland v The Queen

  • MNC:

    [2020] QSCPR 10

  • Court:

    QSCPR

  • Judge(s):

    Lyons SJA

  • Date:

    15 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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