Case: R v GK [2001] NSWCCA 413 ; (2001) 53 NSWLR 317
Outcome: distinguished
Faced with the emerging difficulty of the unexplained coincidence between Mr Zafiriou's table and the identity of those actually selected for retrenchment, counsel for the respondent urged upon me that Mr Zafiriou's evidence, referred to earlier, about the representative sample explained how it was not impossible that a selection could be made which corresponded with the final outcome. It was submitted that I should avoid dabbling in probability theory or statistical analysis. The submission was, in the circumstances, not surprising. It was a legitimate attempt to quarantine the area of greatest danger for the respondent's case. I was referred in support of the submission to R v GK [2001] NSWCCA 413 ; (2001) 53 NSWLR 317 and, in particular, to observations by Mason P in [24] to [28] at pages 323-4. 106 I do not find the passages cited by counsel to be of much assistance in the present case although they touch upon an interesting aspect of the requirements of proof, particularly in criminal trials. 107 R v GK was a case concerning evidence in relation to DNA analysis. The two specific questions in the case concerned whether a trial judge had been correct to leave to a jury expert evidence about paternity index and relative chance of paternity. In the result the New South Wales Court of Criminal Appeal found that the trial judge had erred in not allowing the first category of evidence to be put before the jury but had correctly concluded that evidence in the second category should be kept from the jury. There are interesting discussions of the reason for the rejection of Bayes Theorem and of the 'prosecutor's fallacy'. Underpinning discourse in this area is a concern that juries may not understand the non-inclusionary nature of statistical evidence, particularly DNA statistics. 108 In the present case the problem for the respondent is in persuading me that the striking concurrence between the calculations in Mr Zafiriou's table and the selection of those who were ultimately retrenched (or almost retrenched) should have no bearing upon my conclusion whether the respondent has displaced the legislative presumption. 109 Counsel for the applicants suggested that common sense denied the likelihood of such a close correspondence as a pure coincidence. I agree. I cannot accept the submission that I should simply put the matter aside and am bound to accept the bland assertions from Mr Grbic and Mr Zafiriou that it was just coincidence. 110 One possible view of the procedure required under clause 22 of the Certified Agreement is that redundancy packages should normally be available to volunteers unless their retrenchment may legitimately be denied by a real need to retain their individual skills. Accommodating the wishes of the volunteers also has benefits for those who risk being retrenched in their place. 111 The exception to accommodating the wishes of volunteers depends upon a value judgement about the 'skills required to maintain the company's future commercial viability' (clause 22). Similarly, in the event that compulsory retrenchments are required, the judgement to be made concerns 'skills required to maintain the company's future viability' (clause 22).