DPP v Paulino [2017] VSCA 38

1 I have had the considerable advantage of having read in draft Priest JA's reasons for refusing leave to appeal in this matter. I agree, substantially for the reasons his Honour has given, that such leave should be refused.

2 The trial judge held that evidence that the deceased's DNA was located on three items of the respondent's clothing, and also on the rear driver's side of the respondent's car, was irrelevant and, for that reason, inadmissible. In the alternative, his Honour held that the evidence should be excluded pursuant to s 137 of the Evidence Act 2008. Priest JA has concluded that the trial judge was correct in excluding that evidence.

3 I agree, for the reasons Priest JA has given, that the evidence of the deceased's DNA located on the respondent's shoe, and on the inside rear of his vehicle, failed to meet the test of relevance under s 55 of the Evidence Act.

4 However, I have come to a different conclusion as regards the DNA found on the respondent's shirt and jacket. In my view, that evidence was relevant, and therefore legally admissible. In the particular circumstances of this case, however, it only marginally passed the test of relevance. It had such little probative value that the trial judge acted correctly when he excluded it under s 137. Whatever probative value it had was clearly 'outweighed by the danger of unfair prejudice' to the respondent.

5 Before explaining in more detail how I have come to that conclusion, I wish to say a few words about the trial judge's decision to certify in this case. His Honour found, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009, that the exclusion of the DNA evidence would 'substantially weaken the prosecution case'. I respectfully disagree.

6 It seems to me that, on any view, the case against the respondent, whether with or without the DNA evidence, is quite overwhelming. Accordingly, it cannot reasonably be said that the exclusion of that evidence 'substantially weakens' that case. The exclusion of that evidence simply makes, at most, a small dent in what remains an almost unanswerable case.

7 This Court has, on a number of occasions, referred to the undesirability of interlocutory appeals being brought on evidentiary questions. That is so irrespective of whether it is the Crown or the accused who seeks leave to appeal. In Wells v The Queen (No 2)[2] I spoke out against the bringing of such appeals when all that was in issue were 'evidentiary rulings of a kind which are routinely made every day'. Other members of this Court have, from time to time, expressed similar views.

8 When the legislature in this State first made provision for interlocutory appeals in criminal matters, it was careful to stipulate that a trial judge should be satisfied, before certifying, that the exclusion of any item of evidence in dispute would 'eliminate or substantially weaken' the prosecution case. In erecting that barrier to certification, the legislature expressly distinguished challenges to evidentiary rulings from challenges to non-evidentiary decisions.

9 It is important to emphasise the significance of that distinction. It is worth repeating that, before certifying, a trial judge must be satisfied that the exclusion of the evidence would 'eliminate or substantially weaken the prosecution case'. The word 'eliminate' has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely 'substantially weaken', clearly involves questions of degree, and matters of discretion. The word 'substantial' is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision.[3] On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis.[4] Thus, 'substantially weaken', in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.[5]

10 Before a trial judge certifies in relation to an evidentiary ruling, he or she must be satisfied that if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial. In my view, having regard to the strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence, nothing short of a test approached with that degree of rigour will suffice.

11 The trial judge characterised the DNA evidence in this case as being of 'major importance', or at least 'very important', to the prosecution case. I would not have characterised the evidence in that way. Rather, I regard the DNA evidence as simply being 'the icing on the cake' of a case that could otherwise hardly be more compelling.

12 Even if the DNA evidence can, loosely, be said to be of 'major importance' to the Crown, it would not follow that certification was warranted. Many trials involve rulings that exclude evidence upon which the Crown seeks to rely. Often, such evidence would be regarded by the Crown as important, and, even in some cases, as 'very important'. No doubt, the exclusion of such evidence will not be well received by the prosecution. However, prosecutorial dissatisfaction with a ruling is not the touchstone for bringing an interlocutory appeal. Trial judges should be astute to refuse certification in such cases, save where the evidence really appears likely to affect the outcome of the trial.

13 I recognise, of course, that certification having been granted in this case, it is not the role of this Court to review that decision. Nonetheless, as Priest JA observes,[6] when considering whether we should now grant leave to appeal, the fact that the evidence in dispute seems to fall short of the threshold for certification should not be ignored.

14 As regards the DNA on the shoe and that found inside the car, the trial judge was correct, in my view, to exclude it as irrelevant. I agree with Priest JA's analysis in that regard, as eloquently expressed in his Honour's reasons.

15 It seems to me that the DNA located on the respondent's shirt, and also on the sleeve of his jacket, falls into a somewhat different category.

16 When considering whether any given item of evidence satisfies the test of relevance, the question to be asked, under s 55, is whether, if the evidence were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.[7]

17 It has been said that s 55 sets an 'undemanding' definition of relevance.[8] There need only be a 'minimal, logical, connection' between the evidence and a fact in issue.[9] Moreover, it is important not to confuse relevance with sufficiency or weight.[10]

18 In HML v The Queen,[11] Gleeson CJ, though dealing with the test for relevance at common law, and not under s 55 of the Evidence Act, suggested that the test for both would be similar. Certainly, his Honour did not suggest that there was a higher threshold for admissibility under s 55 than that which applies at common law. In his terms, 'relevance' and 'common sense' are to be viewed as closely related. Whether at common law, or under s 55, all that is required to meet the requirement of relevance is that the item in question be 'reasonably capable' of 'rationally affect[ing], directly or indirectly, the assessment of the probability of the existence of a fact in issue'.[12] In particular, it need not be shown that the evidence would actually affect the relevant probability, merely that it be reasonably capable of doing so.[13]

19 The DNA located on the shirt and jacket actually worn by the respondent on the day of his wife's murder seems to me to pass the test of relevance, although perhaps barely so. One reason for distinguishing between that DNA, and the DNA located on the respondent's shoe and the inside of his car lies in the fact that common sense (which the authorities stipulate is to be used when deciding questions of relevance) suggests that the shirt, at the very least, would probably have been washed at some time not long before the commission of the murder. Less compellingly, the jury might be entitled to conclude that the jacket had been cleaned at some point proximate to the commission of the offence.

20 We were told from the bar table that it was counsel's understanding that DNA can, in some cases, survive washing. Regrettably, we have no evidence of the circumstances under which that can occur. Whether DNA can also, for example, survive dry cleaning (assuming that the jacket was of a kind that would be likely to be cleaned in that way, rather than merely washed) was not addressed. These are questions as to which there is no evidence before us.[14]

21 The very real possibility that the DNA found on both the shirt and the jacket may have been recently deposited (and far more recently, perhaps, than the DNA on the shoe and in the car) seems to me to justify the conclusion that this evidence passed the test of relevance.

22 It must be remembered that no individual item of evidence should ever be considered in isolation when determining whether it meets the test of relevance.[15]

Thus, for example, the DNA on the shirt must be assessed in light of the fact that there happened also to be DNA on the jacket, both items of clothing having been worn on the day that the deceased was murdered.

23 The DNA on the shirt and the jacket would also have to be assessed in light of the entire body of circumstantial evidence in this case. That would include, of course, the extraordinarily powerful evidence of both motive and opportunity.[16]

24 At the same time, I recognise that there is force in Priest JA's analysis, as well as that of the trial judge, with regard to the limitations in relying upon any of the DNA evidence in this case. As I have indicated, the DNA found on the shoe, and in the car, had virtually no probative value, and was therefore irrelevant. On the other hand, the DNA found on the shirt and jacket, though (just) passing the test of relevance, was of relatively little probative value. That fact, when coupled with the dangers of the 'CSI effect' (as to which any direction by the judge in a case such as this would only be of doubtful utility) meant that exclusion under s 137 was clearly warranted.

25 At about 9.00 pm on Monday, 15 July 2013, the respondent's wife, 'TP', suffered multiple stab wounds from which she died.

26 An indictment filed in the Supreme Court charges the respondent with his wife's murder. He denies that he murdered his wife and has pleaded not guilty. The prosecution's case against him is wholly circumstantial. Apart from the killer

and the deceased, there were no witnesses to the killing.

27 Thus, the central fact in issue that the prosecution must establish is that the respondent is his wife's killer.[17]

On 28 October 2016, the trial judge delivered a pre-empanelment evidentiary ruling ('the DNA ruling') which is the subject of the present application for leave to appeal.[18] He excluded four pieces of DNA evidence, holding that the evidence was either not relevant[19] (and therefore inadmissible[20]); or that, if relevant, the probative value of the evidence was outweighed by the danger of unfair prejudice.[21] The DNA evidence in issue was extracted from:

• a pair of boots belonging to the respondent (item 34);

• a jacket belonging to the respondent (item 35); and

• a long-sleeved shirt belonging to the respondent (item 32).

28 At the request of the prosecution - and over the opposition of the defence - on 3 November 2016, the judge certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 ('CPA').[22] The judge, having correctly adverted to the fact that he could only certify under the subsection if 'the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case',[23] held:

Having regard to the circumstantial nature of the case against the accused, I consider that DNA evidence of the deceased that links her killing with the accused would be of major importance or at least very important to that case. Therefore I accept the submission of the prosecution that the ruling [scil, evidence] would substantially weaken the prosecution case against the accused. [24]

29 Pursuant to s 295(2) of the CPA, the Director of Public Prosecutions ('the Director') seeks leave to appeal against the DNA ruling.

30 There is but one ground of appeal, which asserts that the trial judge 'erred by failing to admit the DNA evidence' the subject of the ruling.

31 For the reasons that follow, I would refuse leave to appeal.

32 In order to appreciate the issues raised in this application, it is necessary to say a little of the prosecution's case.

33 When she was killed, the deceased was separated from the respondent. The two had met at secondary school and had married in 1987. Their separation had been acrimonious, and their marriage breakdown was the subject of family law proceedings. The prosecution alleges that the respondent bore his wife extreme animosity, reflected in his having made threats to her life; following her; making nuisance telephone calls to her; and spreading malicious rumours about her.

34 The catalyst for the separation was an incident at a family gathering in Rye in January 2010. In the course of an angry exchange, the respondent screamed at TP and others, and tipped up a table. Following this incident, TP left the matrimonial home in Taylors Lakes and went to live with her parents at their residential home in Reservoir.[25] Although initially there were no major difficulties between the two, as time went on the respondent became more unhappy about the separation and increasingly more resentful towards the deceased.

35 Sometime around 2011, TP formed a relationship with another man. In late 2010 or early 2011, she consulted a family lawyer concerning the matrimonial assets. Also during 2011, the respondent showed a number of people a pornographic video on his telephone, which he insisted depicted TP engaging in oral sex with another man, claiming that TP had cheated on him during their marriage. The respondent also embarked on a campaign of late-night nuisance telephone calls to his wife.

36 On 11 February 2012, a police officer spoke to the respondent about his behaviour, indicating that she would be seeking an intervention order on TP's behalf. It is alleged that the respondent then threatened the police officer. In the result, an intervention order was granted by the Magistrates' Court on 20 February 2012. Among other things, it prohibited the respondent from communicating with TP.

37 The prosecution alleges that the respondent's behaviour deteriorated further after TP initiated proceedings in 2012 to effect a property settlement with respect to the matrimonial home and other assets. A final hearing in the Federal Magistrates' Court was fixed for 6 December 2012, and the court made orders requiring the parties to engage real estate agents to sell the matrimonial home; to arrange to have other assets valued; and to attend mediation. On 6 December 2012, the final hearing of the matter was adjourned to 21 August 2013, the respondent having loudly abused TP in the environs of the court. Later, due to further uncooperative, threatening and abusive behaviour by the respondent, TP's solicitor sought an urgent hearing in the Federal Magistrates' Court, which was fixed for 1 August 2013, and on 10 July 2013 - that is, five days or so before the killing - TP's solicitor provided the respondent with the supporting documents. Plainly, the respondent had become preoccupied with financial concerns as a result of the ongoing family law dispute.

38 It is perhaps unnecessary to dwell further on the respondent's behaviour in the lead-up to the killing - my description of it to this point being much abbreviated - save to say that he made a number of threats to kill TP, such threats having been uttered to a number of different people.

39 TP was killed at her parents' home on 15 July 2013. Earlier that evening, TP cooked food for her two sons, 'DP' and 'LP', at her sister's house (also located in Reservoir). TP and her two boys ate together with her sister and her sister's family. At about 7.50 pm TP's sons left, and she followed not long afterwards to return to her parents' home.

40 DP arrived back at the house that he shared with the respondent in Taylors Lakes at about 8.15 pm. The respondent was not at home and his car was missing. Contrary to his father's usual practice, two televisions were playing and lamps were on in the respondent's bedroom. Since this state of affairs was unusual, DP tried to telephone his father, but could get no answer.

41 At 8.41 pm, 'PEV', a friend of TP, telephoned her. TP said that she had heard a banging noise that had scared her.

42 Not long afterwards, at about 9.00 pm, two neighbours heard loud screams coming from the rear or side of TP's mother's house. When they investigated, they saw the garage doors open and the lights on. One of the neighbours telephoned TP's sister, who in turn dispatched her husband 'Nick' to investigate. Nick and his friend, Michael Cardamone, went to TP's mother's residence, and found TP lying dead on the floor at about 9.40 pm. She was covered in blood, and was lying face down in a pool of blood, apparently holding a small black jemmy bar beneath her body. An autopsy revealed that she had suffered multiple penetrating stab wounds to her chest, abdomen and back, which had been caused by a knife (or similar). There was also evidence of blunt force trauma to TP's head and face. The cause of death was recorded as 'multiple stab wounds'.

43 At 11.02 pm the respondent made first use of his mobile telephone since sending a text message at 6.51 pm. The evidence is that, in the normal course of events, the respondent always had his telephone close at hand.

44 Police crime scene specialists arrived at the murder scene at 11.45 pm. I need not set out their findings in any detail, save to observe that they discovered that a sensor light - which was usually orientated so as to detect movement and cast light toward the rear yard and garage area - had been tampered with, so that it was no longer operative. Further, two right size 8 or size 9 shoe impressions were observed in a soil garden bed; blood staining was found on the metal frame of a gate; and several areas of blood-staining were observed on exterior walls of the house and a fence. That the scene was extremely bloody is clear from the statement of a Forensic Officer, Mark Gellatly,[26] dated 1 June 2015 (Exhibit 1). He expressed the view that TP had walked (and possibly slipped) in liquid blood within the garage, and that at least one person wearing shoes stained with TP's liquid blood had 'traversed through the garage'.

45 When spoken to by police in the early hours of 16 July 2013, the respondent said he had not seen TP for two or three months. He said that he left home at around 8.00 or 8.30 pm to look for hard rubbish. Eventually, he went to his mother's house at 9.30 or 10.00 pm. He then realised he had left his telephone at home. Shortly afterwards, he returned home and found he had left his telephone in his work utility. He gave police the clothing that he said that he had been wearing the previous day.

46 The respondent's son, LP, said that four weeks before his mother's death, he had borrowed his father's vehicle, after which he thoroughly cleaned and detailed the vehicle, including wiping the inside door trims with a liquid cleaner and cloth.

47 According to the prosecution, TP's killing was planned, and carried out by someone with knowledge of the layout of her mother's premises. It is said that the respondent had demonstrated strong motives for killing TP. Not only did he manifest hatred for her, but he was preoccupied with financial concerns. Moreover, the respondent had the opportunity to kill the deceased. Furthermore, the prosecution relies on certain incriminating conduct. Of particular relevance to the present application, in the Summary of Prosecution Opening, when setting out how the prosecution case will be put at trial, it is said of DNA evidence:

DNA evidence very strongly suggests a connection between the deceased and the accused and his car that evening. There is no apparent explanation for the DNA of the deceased being found in the car and on the clothing of the accused.

The statutory regime for interlocutory appeals

48 By virtue of s 295(2) of the CPA, a party to a trial on indictment may only appeal against an interlocutory decision with the leave of this Court. If an interlocutory decision concerns the admissibility of evidence - as does this case - s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies (among other things) 'that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case'. As earlier indicated,[27] the judge so certified.

49 Section 297 of the CPA specifies the circumstances in which leave to appeal may be given:

When leave to appeal may be given

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(i) render the trial unnecessary; or

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

(3) If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.

50 It is important to note, however, that although the judge certified under s 295(3)(a), and this Court has no formal function of reviewing the grant of the certificate,[28] on an application such as this - which concerns the admissibility of evidence - it nonetheless remains relevant to examine the significance of the impugned evidence by reference to the test in s 295(3)(a).[29] If this Court comes to a different view about the significance of the impugned evidence, that ordinarily will significantly influence the exercise of the discretion under s 297(1) to grant or refuse leave to appeal.[30] Acknowledging that this is so, it should be observed that, in order for it to be concluded that the exclusion of evidence will substantially weaken the prosecution's case, it is not enough that the exclusion of the evidence may 'significantly' weaken the case, since in context, the use of the adverb 'substantially' suggests something more than 'significantly'. In context, the adverb 'substantially' connotes evidence which is of 'major importance', or, at least, 'very important' to the prosecution case.[31]

51 Finally, on an interlocutory appeal, any question concerning the admissibility of evidence is to be determined according to House[32] principles.[33] Thus, for leave to be given in this case, the Director must establish that the primary judge acted upon a wrong principle, took into account an irrelevant matter, made a mistake as to the facts, failed to take into account a material consideration, or reached a result so unreasonable or plainly unjust that it may be inferred that an error had been made although the nature of the error might not be discoverable.[34]

52 As I have said, the impugned decision involved DNA evidence located on a pair of boots (item 34); the respondent's motor vehicle (item 43); a jacket belonging to the respondent (item 35); and a long-sleeved shirt belonging to the respondent (item 32).

53 In essence, the prosecution submitted that TP was the source of the DNA found on these items and that the jury could - without any unacceptable danger of unfair prejudice - find that the DNA was deposited onto these items at the time of, or shortly after, the killing. The defence objected to the reception of the evidence on the basis that the evidence that the source of the DNA is the deceased is weak, and that there are many ways unconnected with the killing by which the DNA may have been deposited onto the items. It was submitted that the jury could not, without the danger of unfair prejudice, find that the DNA was deposited around the time of the killing.

54 In determining the admissibility of the DNA located on the boots, the car, the jacket and the shirt, the trial judge held - in my view, correctly - that the prosecution would have to establish a rational basis upon which the jury could find, without engaging in conjecture, that the DNA on the relevant item was connected with the killing.[35]

55 Undisputed expert evidence before the judge was that DNA is a relatively stable substance; that it exists for many years; that every human sheds DNA (at various rates); and that it can be deposited or transferred by primary means (such as by a person to a person or object) and secondary means (such as by a person to a person or object, and then to another person or object). The judge noted that the evidence in the case 'leaves open a number of reasonable primary deposit and secondary transfer explanations', and he did 'not accept the submissions of the prosecution that these explanations are fanciful'. He held that, in light of the evidence, 'the jury could have no rational basis for finding that the method of transfer was connected with the killing', since the 'evidence leaves open both inculpatory and exculpatory possibilities between which it is not possible rationally to select'.[36]

56 The trial judge concluded that the DNA evidence relating to the four disputed items was irrelevant.[37] In so concluding, the judge - again, correctly - examined the DNA evidence as part of the prosecution case as a whole. Having cited from Bayley,[38] he said: [39]

... Therefore, as regards the prosecution case as a whole, I should take into account that the DNA evidence is but a part of a much larger body of circumstantial evidence pointing to the involvement of the accused in the killing of the deceased. I accept that the relevance of each individual item of evidence must be considered in the context of the evidence as a whole and not in isolation.[40] It is also necessary to recall that the prosecution is not required to establish the existence of every fact in issue beyond reasonable doubt, but only the elements of the offence beyond reasonable doubt (see above).

So examined in the context of the evidence as a whole, a jury would, in my view, have no reasonable basis for determining whether DNA of the accused on the four items was connected with the killing. There is a reasonable explanation for finding to the contrary in each case that the jury could not reject without speculation. The explanations offered by the defence share a common reasonable foundation, namely the contact that occurred between the accused and the deceased in the matrimonial home before the separation, the contact that occurred between the deceased and the matrimonial home (in which the accused continued to live) after the separation, the contact that occurred between the sons and the deceased and between the sons and the accused before the killing and, finally, the contact that occurred between the accused, the deceased and the sons in relation to the motor vehicle before the killing. These explanations are reasonably open even given the evidence that there was not relevant person-to-person contact between the deceased and the accused after the separation.

57 Moreover, the trial judge was of the view that the probative value of the evidence was outweighed by the danger of unfair prejudice. He said:[41]

In my view, taken at its highest, the probative value of the DNA evidence in relation to the four items can only be low at best. Any decision to prefer the explanations of the prosecution over the explanations of the defence for the presence of DNA of the deceased on the items could only be marginal. This case is to be distinguished from Tuite v The Queen[42] where the trial judge found the DNA evidence to be highly probative and the Court of Appeal held that no error was committed in refusing to exclude it.[43]

Against this low probative value must be weighed the danger of unfair prejudice flowing from the jury placing undue weight upon the evidence. There is a real danger of this happening in the present case. The danger is unfair because the evidence may to the jury have an appearance of persuasive force that is out of all proportion to its actual probative value.[44] I do not consider that this danger can adequately be managed by the giving of directions to the jury about how this evidence is to be properly used.

58 The Director submitted that the admissibility of each piece of DNA evidence fell to be considered in the context of the evidence overall. It was submitted that there would be no requirement that any of the DNA evidence be established beyond reasonable doubt (or to any particular standard) before it could be admissible. Further, it was contended that, whilst the trial judge purported to accept that the only things the prosecution needed to prove beyond reasonable doubt were the elements of the crime of murder, and that particular pieces of evidence must not be examined in isolation, he did not go about the task of deciding the admissibility of the evidence in a way which reflected those realities.

59 It was submitted that Wise and other authorities cited by the judge are not authority for the proposition that whenever there is the possibility of innocent transfer of DNA, the DNA evidence should be excluded. Counsel for the Director submitted that, unlike in Wise, in the present case there was no evidence which elevated the possibility of innocent transfer beyond the level of speculation. Consideration of the evidence overall would indicate that it would be wholly unrealistic to suppose that the DNA of the deceased could, by innocent means, have ended up being upon not one but three items of clothing of the respondent, and in his motor car, in circumstances where they had supposedly had no close physical contact for some years, these were work clothes which would be expected to be frequently washed, the motor car was one in which the deceased had not been present for years and the vehicle itself had been thoroughly cleaned only weeks before the killing. The judge was wrong to conclude the innocent explanations for the presence of the DNA on the items were reasonable, and in any event, was wrong to conclude that if reasonable innocent explanations existed for the presence of the DNA, that the evidence was therefore irrelevant.

60 With respect to the judge's consideration of s 137 of the Evidence Act, it was submitted that the finding that 'the probative value of the DNA evidence in relation to the four items can only be low at best'[45] was not reasonable. Taking the DNA evidence at its highest, so it was submitted, it should have been viewed as possessing significant probative value. As to the danger of unfair prejudice, it was argued that the issue of possible innocent transference would be a simple enough one, readily able to be understood by a jury. Any risk of a jury placing undue weight upon the evidence could readily be ameliorated by the giving of appropriate directions.

61 Counsel for the respondent submitted that the trial judge was correct to conclude that unless the various items of DNA evidence were capable of being found to have some connection with the killing they were irrelevant. It was submitted that the judge was entitled to conclude that on the factual and scientific evidence any finding as to how the various DNA deposits came to be on the various items would be purely speculative. In light of the expert evidence, a jury would have no rational basis enabling them to proceed on the basis that, if the deceased cannot be excluded as contributing to the DNA sample, then that deposit could only have occurred in connection with the killing. It was submitted that an instructive example of the possibility of innocent transfer is provided by a sample that was taken from the outer surface of the right chest area of the long sleeved shirt worn by the respondent on the night of the killing. From this sample, a likelihood ratio of 450[46] as against 'MM', the sister of the deceased, was obtained. The evidence was, however, that MM had lived overseas for some years and could not have had contact with the respondent for many years.

62 It was submitted that the judge's approach to s 137 was plainly correct. The finding that the DNA evidence - if relevant - was of low probative value was responsive to the evidence.

63 Counsel for the respondent also contended that the 'high hurdle' for appellate intervention on an interlocutory appeal had not been cleared. Although this Court will not be involved in a formal process of reviewing the judge's certification, if the Court was of the view that the exclusion of the evidence would not substantially weaken the prosecution case, that would be highly relevant to the question of whether to grant or refuse leave. The expression 'eliminate or substantially weaken' conveys a clear legislative intent that there be a high hurdle for certification and potential appellate intervention where - as in this case - the interlocutory decision concerns the admissibility of evidence.

64 The Evidence Act 2008 provides that relevant evidence 'is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue'.[47] Except as otherwise provided by the Evidence Act, relevant evidence is admissible.[48]

65 Probative value is defined in the Dictionary to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[49] The assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[50]

66 In Wise, the Court observed that determining whether a piece of evidence has the capacity to 'rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue' involves an exercise in logic.[51] In other words, in order for evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence. As Gleeson CJ, Heydon and Crennan JJ said in Washer:[52]

... Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[53] That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.

67 In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, 'if it were accepted'[54] by the jury, 'could' - not 'would' - 'rationally affect' the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb 'rationally' is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[55] Therefore, ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial.[56] Moreover, in judging relevance, the contested evidence must not be looked at in isolation.[57] As Heydon J observed in Evans:[58]

... The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.

68 As I have said, the principal fact in issue that the prosecution must establish is that the respondent is his wife's killer. Given that there were only two people present when TP was stabbed multiple times, the central fact in issue may be refined to be whether the respondent was present when TP was stabbed. Thus, the DNA evidence in this case will be relevant if it could rationally affect the assessment of the probability of the respondent's presence at the scene when his wife was killed. If the DNA evidence cannot rationally go in proof (or, for that matter, disproof) of his presence, it simply is irrelevant and therefore inadmissible.

69 Before turning to the disputed DNA evidence, it is convenient to say a little more about some of the evidence that bore on the admissibility of that evidence.

70 LP, in a statement contained in the depositions, said that after his parents separated, TP would come to the house in Taylors Lakes when the respondent was not at home. LP and DP would tell their mother that the respondent was not at home, and she would come and clean their rooms. Sometimes she cooked. TP would also 'grab some extra photos or anything she wanted'. On the occasion of DP's twenty-first birthday, TP visited the Taylors Lakes house when the respondent was present and they posed together for a 'family' photo. Both parents told him that, after the separation, they spoke to each other at a shopping centre. When cross-examined at the committal hearing, LP said that after his parents' separation, his mother came to the home in Taylors Lakes 'once or twice'. He said that she came to visit, 'Very, very rarely, maybe ... one to three instances where she just come (sic.) in, clean (sic.) the house, do mum things, make sure her boys are alright, make sure the teenagers are cleaning their room'. She would not cook.

71 An acquaintance of TP's, 'VB', gave evidence at the respondent's committal proceedings that TP had told her that, after the 'Rye incident'[59] 'she would go and change the boys' sheets or make schnitzel and try to get as many belongings as she could'.

72 Another acquaintance, 'AB', also gave evidence at the committal. TP had told her that, after the separation, she would go to the Taylors Lakes house: 'She'd clean the house and make sure the kids were fed ... And that's why she went back'.

73 'DL', a further acquaintance, gave evidence at committal that, after TP and the respondent 'split up', TP said she 'just went back and washed the sheets, make (sic.) some food for the kids'. There were a 'couple of times' when the respondent 'came home'.

74 Moreover, in an affidavit sworn 23 November 2012 for use in the family law proceedings, TP said she went to the Taylors Lakes home when the respondent was not there. She purchased sheets and toiletries for the boys and gave them money. She also 'washed their sheets weekly'.

75 With respect to the applicant's motor vehicle, LP said in his statement to police that he could not remember the last time he saw his mother in his father's car. When she was in the car, however, she would sit in the front seat unless she and her husband were fighting, in which case she would sit in the back behind the front passenger seat. LP also said that he would sometimes clean his father's car. When he cleaned the inside, he would vacuum, and he would use 'Spray and Wipe' or a 'wet wipe'. He would use the Spray and Wipe on the dashboard seats and back seats, and he would 'clean the doors as well on the inside and the handles as well', together with the door 'side panels'.

76 Against that background, it is necessary to set out my conclusions concerning the disputed evidence and the DNA ruling.

77 Item 34, the pair of boots, was taken from the respondent within hours of the killing. The respondent claimed that he had been wearing them the night that his wife was stabbed. When scientifically examined, no blood was found on the boots. DNA was, however, extracted from the sole of the left boot. Although a mixed DNA profile with four contributors was derived, initially Mr Gellatly[60] determined it to be 'too complex for further interpretation'. Sometime later, sample '34-1' was again analysed. In a report dated 13 September 2016 (Exhibit 4), Mr Gellatly found there to be a mixed DNA profile with four contributors. Having assumed the respondent to be a contributor, using a 'Likelihood Ratio' ('LR') approach,[61] Mr Gellatly expressed the opinion that that the 'DNA evidence is 570 times more likely if [TP] is a contributor'. The prosecution sought to introduce the DNA evidence relating to sample 34-1.

78 In my opinion, the trial judge was correct to find that the DNA evidence concerning the boots was irrelevant to any fact in issue. As a matter of logic, the evidence goes no way towards proving that the respondent was present at the scene when his wife was killed. Put another way, if the jury accepted the DNA evidence, it could not rationally affect their assessment of the probability of the respondent's presence at the time his wife was killed.

79 It will be remembered that a shoeprint was found in a garden bed at the deceased's mother's premises, and that at least one person wearing shoes stained with TP's liquid blood had 'traversed through the garage'. The boots were not implicated.

80 Moreover, other samples taken from the boots render the prosecution's contention - that sample 34-1 is capable of founding an inference (as part of the overall circumstantial case) that the respondent was present when his wife was killed - extremely problematic. Thus, sample 34-3 was a sample of DNA obtained from the outer surface of the toe region of the left boot. Mr Gellatly, in a report dated 13 July 2016 (Exhibit 3), expressed the opinion that the DNA evidence is 7.1 times more likely if the deceased's son, DP, is a contributor. And with respect to sample 34-5, a sample obtained from the outer surface of the heel of the right sole, Mr Gellatly said that the DNA evidence is 100 billion times more likely if the deceased's other son, LP, is a contributor. It is not suggested that either DP or LP were present at the scene when their mother met her death, so that their DNA must have been deposited onto the boots by some mechanism unconnected with their presence at the scene of the crime. So much emphasises the conjectural nature of the prosecution's reliance on the evidence of sample 34-1.

81 The DNA evidence relating to the boots is not capable of rationally affecting the jury's assessment of the respondent's presence at the scene of the killing. It would be wholly speculative for the jury to rely upon the evidence to establish presence. The judge was correct to find that the evidence was irrelevant.

82 Item 43 consisted of samples obtained from the respondent's vehicle. Sample 43B-1 was a mixed sample with three contributors obtained from the inner surface of the trim of the driver's side rear door of the vehicle. In a report dated 7 October 2016 (Exhibit 5), Mr Gellatly expressed the opinion that the DNA evidence relating to sample 43B-1 is 670 million times more likely if TP is a contributor. The prosecution's case is that the respondent must have transferred the DNA to that location after the killing.

83 In an earlier report dated 13 July 2016 (Exhibit 3), with respect to sample 43B-1, Mr Gellatly expressed the view that the DNA evidence is 54 times more likely if DP is a contributor, and 2.7 times more likely if LP is a contributor. (Later, however, Mr Gellatly acknowledged that the conclusions that he had arrived at with respect to DP and LP being contributors to sample 43B-1 were mistaken, and he therefore 'excluded' both DP and LP as contributors.) The available evidence suggests that the deceased had been a passenger in the rear of the car, and that her sons used the vehicle for their own purposes.

84 The applicant submitted that the possibility of TP's DNA having been deposited in the car by her (or one of her sons) before her death is entirely speculative, unrealistic and far-fetched. At the time of her death, TP had been separated from the respondent for more than three years, and there is no evidence that she had been in the car during that period. Further, there is evidence from LP that, about four weeks before the death of his mother, he had borrowed his father's vehicle for a camping trip. He had then thoroughly cleaned and detailed the vehicle, including wiping the inside door trims with a liquid cleaner and cloth. In those circumstances, so the applicant contended, it would be inherently implausible to suppose DNA left on the car over three years before could still be in place after the murder, or that TP's DNA could have been transferred by one of her sons.

85 Contrary to the applicant's submissions, however, to invite the jury to infer that TP's DNA was transferred to the vehicle after the killing would be an invitation to speculation. Given that the deceased and her sons had previously been in the vehicle, in my opinion it would be pure conjecture to conclude that the relevant DNA was deposited after the killing. As the judge observed, the expert evidence was that DNA is a relatively stable substance that exists for many years. Every human sheds DNA, which can be deposited or transferred by primary means (such as by a person to a person or object) and secondary means (such as by a person to a person or object, and then to another person or object). Indeed, Dr Brian McDonald, a consultant molecular geneticist, gave evidence on the voir dire that skin 'sheds about 1,000 cells per hour per square centimetre', and that each cell potentially has a copy of DNA. Every cell in the body 'contains a complete copy' of an individual's DNA - which is the 'same copy' in every cell of the body - so that 'identifying what it is in one cell doesn't tell you anything about what type of cell it came from'. He said that DNA is 'quite a stable molecule' and can be 'transferred more than once'. DNA can be transferred onto an object, and then from that object onto another.

86 In light of the expert evidence, the judge concluded that the jury could have no rational basis for finding that the method of transfer was connected with the killing. The evidence of DNA from sample 43B-1 is irrelevant. It could not rationally affect an assessment of the probability that the respondent was present when his wife was killed. The judge was correct to exclude the evidence.

87 Item 35 consists of six samples taken from the respondent's jacket (upon which, significantly, no blood was detected). The prosecution sought to rely on evidence from samples 35-1, 35-3 and 35-5.

88 Sample 35-1 was taken from the outer surface of the lower left sleeve of the jacket. A mixed DNA profile with at least three contributors was obtained. In a report dated 1 June 2015 (Exhibit 1), Mr Gellatly estimated a likelihood ratio of 350 for TP; and in a later report dated 13 July 2016 (Exhibit 3), estimated likelihood ratios of 1.3 and 45 respectively for LP and DP. Secondly, sample 35-3 was taken from the outer surface area of the left chest area of the jacket. A mixed DNA profile from at least three contributors was obtained. Mr Gellatly reported a likelihood ratio of 150 for TP (Exhibit 1), and 96 for DP (exhibit 3). Thirdly, sample 35-5 was taken from the outer surface of the upper right sleeve. Again, a mixed DNA profile involving at least three contributors was obtained. Mr Gellatly estimated a likelihood ratio of 300 for TP (Exhibit 1), and likelihood ratios of 530 and 16 respectively for LP and DP (Exhibit 3).

89 The applicant submitted that for the evidence of the DNA on the jacket to be relevant, the prosecution would not need to assert that the respondent was wearing it at the time of the murder, and that the DNA of the deceased was deposited on it at that time. It was submitted that another realistic possibility would be that the respondent carried out the murder and changed into the jacket afterwards, inadvertently depositing TP's DNA onto the jacket. Another plausible explanation is that the respondent might have been wearing the jacket at the time of the killing, and that the DNA ended up on the jacket as a result of his carrying out the crime.

90 In my view, however, to invite the jury to engage in the kind of reasoning advanced by the prosecution is to invite speculation. It is not suggested that LP or DP were present when their mother met her death, or had contact with the respondent shortly afterwards, yet their DNA was also on the jacket. A jury would be incapable of rationally concluding that TP's DNA was deposited onto the jacket in the manner put forward by the prosecution. The judge did not err in concluding that the evidence was irrelevant.

91 No blood was detected on the respondent's long-sleeved shirt, item 32, from which six samples of DNA were taken.

92 Sample 32-1 was taken from the outer surface area of the lower left sleeve. A mixed DNA profile involving at least three contributors was obtained. Mr Gellatly estimated likelihood ratios for TP at 35 billion (Exhibit 1) and 100 billion (Exhibit 5); for LP at 58,000 (Exhibit 3); and for DP at 2,200 (Exhibit 3). Samples were also obtained from five other areas. Thus, sample 32-2, from the outer surface left upper sleeve, rendered a likelihood ratio for TP of 340,000 (Exhibit 1); for LP of 50 (Exhibit 3); and for DP of 1,700 (Exhibit 3). Sample 32-5, from the outer surface right upper sleeve, rendered a likelihood ratio for TP of 2.3 million (Exhibit 1); for LP of 9.3 (Exhibit 3); and for DP of 690 (Exhibit 3). And sample 32-6, from the outer surface of the right chest, rendered a likelihood ratio for TP of 1,900 (Exhibit 1); for LP of 300 (Exhibit 3); and for DP of 1,800 (Exhibit 3).

93 Of some significance, in a report dated 7 October 2016 (Exhibit 5), Mr Gellatly recorded the finding of apparent DNA from the deceased's sister, 'MM', in sample 32-6 (likelihood ratio of 450), in circumstances where there had been no physical contact between MM and the respondent for several years.

94 In my opinion, given the presence of several sets of DNA - particularly that of MM - on the shirt, no blood having been detected, it is speculative to suggest that TP's DNA was deposited at the time of, or shortly after, the killing.

95 The trial judge's assessment that the evidence was not relevant was correct.

96 As I have mentioned, counsel for the Director submitted that the admissibility of each piece of DNA evidence fell to be considered in the context of the evidence overall. If each item of DNA evidence - each strand (or, as counsel put it, 'straw in the wind') - was considered individually, they might possess little probative value. But, so counsel put it, when the strands are considered collectively, they are capable of supporting the inference that the applicant was present when his wife was killed, particularly when considered together with the other circumstantial evidence. It was the coincidence of the four strands of DNA evidence which was capable of rationally supporting the inference.[62]

97 Although there is some superficial attraction in the Director's submissions, they cannot be accepted. As a matter of common experience, often a piece of circumstantial evidence will have little probative value on its own, but, when considered with other pieces of circumstantial evidence (themselves perhaps flimsy if viewed in isolation), will support a compelling inference of fact. It needs to be borne steadily in mind, however, that before a strand of circumstantial evidence may be considered collectively with other strands, it must have some capacity rationally to affect the assessment of a fact in issue. If a strand does not have that capacity, it is irrelevant. And, as a matter of logic, if a strand of evidence is incapable of going in proof of a fact in issue, it does not become clothed in a mantle of relevance simply because it is conjoined to other strands of irrelevant evidence. As I have said, each of the disputed pieces of DNA evidence individually has no probative value. When they are united, they still possess no probative value.

The alternative basis for exclusion: probative value and prejudicial effect

98 Section 55(1) of the Evidence Act requires the application of logic. Applying logic, the trial judge found that the disputed evidence could not rationally affect the jury's assessment of whether the respondent was present when his wife was killed. As I have indicated, I agree with the trial judge.

99 In the alternative, the trial judge held that, taken at its highest, the probative value of the DNA evidence 'can only be low at best'. A decision to prefer the inferences invited by the prosecution over innocent explanations 'could only be marginal'. The judge held that there was a real danger of unfair prejudice 'flowing from the jury placing undue weight upon the evidence'. Such danger is unfair because 'the evidence may to the jury have an appearance of persuasive force that is out of all proportion to its actual probative value'. The danger could not adequately be ameliorated by directions as to non-misuse of the evidence.

100 I would uphold the alternative basis upon which the judge excluded the DNA evidence. If, contrary to the view that I share with the trial judge, the DNA evidence can be said to have some probative value - that is, it might to some extent 'rationally affect the assessment of the probability of the existence of a fact in issue' - I regard any probative value that the evidence possesses as being outweighed by the danger of unfair prejudice.

101 As was pointed out in Wise,[63] although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[64] s 137 merely requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused. When weighing probative value against the danger of unfair prejudice, however, s 137 requires that the evidence be taken at its highest so far as the effect it could have on the assessment of the probability of the existence of the facts in issue.[65] Section 137 contemplates that no element of discretion accompanies the judicial exercise for which it provides.[66] It 'is expressed in terms of an evaluative judgment mandating exclusion'.[67] In a criminal proceeding, therefore, a trial judge must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.

102 I need not recapitulate in detail the factual circumstances of the cases discussed in Wise,[68] since every case falls to be decided according to its particular facts. Joyce[69] and GZ[70] provide examples, however, of circumstances in which, in a criminal trial, DNA evidence has been excluded because the results of examination were open to competing hypotheses, one inculpatory the other exculpatory, neither of which could be preferred to the other on any scientific basis in evidence; or where the evidence did not permit a conclusion of direct transference (as alleged by the prosecution), as opposed to the possibility of secondary transference by contamination.

103 In my opinion, although any probative value that the disputed evidence might possess is (at best) slight, there is a palpable risk that it might assume an undeserved mantle of potency and legitimacy in the eyes of the jury. I thus agree with the judge's conclusion that the impugned evidence may to the jury have an appearance of persuasive force that is out of all proportion to its actual probative value. In that regard, it is worth repeating what was said of such a danger in Wise: [71]

Moreover, one of the dangers associated with DNA evidence, is what has come to be known as the 'CSI effect'. The 'CSI effect' is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings.[72] As we have explained, as a matter of pure logic, the DNA evidence has little or no probative value. By virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy - no matter the directions of a trial judge - and give it weight that it simply does not deserve. The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small.

104 In my view, in the circumstances of this case, the risk of unfair prejudice flowing from the introduction of the disputed DNA evidence could not adequately be mitigated by directions.

105 As I have indicated, the judge was correct to determine that the impugned evidence was irrelevant, or, alternatively, that any probative value that it possessed was outweighed by the danger of unfair prejudice.

It follows that I am not satisfied that, in ruling as he did, the judge acted upon a wrong principle, took into account an irrelevant matter, mistook the facts, failed to take into account a material consideration, or reached a result so unreasonable or plainly unjust that it may be inferred that his decision was attended by undisclosed error.

106 Moreover, I am not satisfied that the exclusion of the evidence will substantially weaken the Crown case. Without the DNA evidence, an extremely powerful prosecution case remains.[73]

107 For these reasons, the application for leave to appeal must be refused.

108 I have had the considerable advantage of reading drafts of the reasons for judgment of Weinberg and Priest JJA. I agree with their Honours that leave to appeal should be refused.

109 Assuming (without deciding) that all of the DNA evidence is admissible, ought not to have been excluded under s 137 of the Evidence Act 2008 and assessing that evidence at its highest, I am not persuaded that leave should be granted under s 297(1) of the Criminal Procedure Act 2009.

110 As both Weinberg and Priest JJA have observed, this Court has no role in reviewing the decision of the trial judge to certify under s 295(3)(a) of the Criminal Procedure Act. Nevertheless, the effect on the prosecution case if the evidence is not admitted is relevant to the exercise of the discretion as to whether to grant or refuse leave.[74] For the reasons given by Weinberg JA, the exclusion of the DNA evidence does not substantially weaken the prosecution case.

[1] This document was previously handed down as an anonymised judgment and published under the name DPP v Tom Massey (a Pseudonym) but is now published under the name of the Respondent.

[2] [2010] VSCA 294 (Weinberg JA).

[3] In Re Bonny [1986] 2 Qd R 80, Ambrose J said at 82: 'In my view, when considered in the context of a definition that talks of a person who is 'wholly or substantially dependent on' another, the term 'substantially' connotes 'in the main' or 'essentially'.'

[4] The meaning of a word is known from the accompanying words.

[5] See [50] below and footnotes contained therein.

[7] The words 'directly or indirectly' are significant because they allow for evidence to be held relevant even where it does not render a fact in issue more probable, but merely a fact relevant to a fact in issue.

[8] Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171 (Lehane J).

[9] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 321-2 [81] (McHugh J).

[10] Reading v Australian Broadcasting Corporation [2003] NSWSC 716, [27].

[11] [2008] HCA 16; (2008) 235 CLR 334.

[13] R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 (Heydon JA as his Honour then was).

[14] This is yet another reason why interlocutory appeals on points of evidence will often be unsatisfactory.

[15] R v Fung [2002] NSWCCA 479; (2002) 136 A Crim R 95, 114 [82] (Hulme J).

[16] See generally, as regards the relevance of DNA evidence, R v Chanthovixay [2004] NSWCCA 285, [34]-[37] (Hulme J, Beazley JA and Wood CJ at CL agreeing). Of course, the same is true of the DNA found on the shoe and in the car. However, that DNA is plainly more equivocal in nature than the DNA on the shirt and jacket given the likelihood that the latter was deposited closer to the time of the murder.

[17] Issue does not appear to be joined between the prosecution and defence that, if the respondent is proven to have stabbed his wife to death, the killing might constitute other than murder.

[18] Now reported as DPP v Paulino [Ruling No 3] [2017] VSC 345 ('Ruling').

[19] Evidence Act 2008, s 56(1).

[20] Evidence Act 2008, s 56(2).

[21] Evidence Act 2008, s 137.

[22] Now reported as DPP v Paulino [Ruling No 5] [2017] VSC 347.

[25] Her father died later in 2010. Thereafter, until her death, TP lived with her elderly mother.

[26] Mark Alexander Gellatly is the Senior Case Manager within the Biological Examination Branch of the Forensic Services Department at the Victorian Police Forensic Services Centre. He holds a Bachelor of Science (Applied Biology) Degree and a Bachelor of Science (Honours) (Molecular Biology) Degree.

[28] Compare s 296 of the CPA, which permits review of a refusal to certify.

[29] CGL v DPP (No 2) [2010] VSCA 24; (2010) 24 VR 482, 484 [13] (Maxwell P, Buchanan and Bongiorno JJA).

[31] ZL v The Queen (2010) 208 A Crim R 325, 329 [20] (Nettle JA) ('ZL'); DPP v Wise [2016] VSCA 173, [11] (Warren CJ, Weinberg and Priest JJA) ('Wise'). See also Greg Taylor, Interlocutory Criminal Appeals in Australia (Lawbook Co, 2016), [4.20]-[4.40].

[32] House v The King [1936] HCA 40; (1936) 55 CLR 499 ('House').

[33] DPP v Tuite (No 2) [2015] VSCA 180, [33] (Weinberg, Whelan JJA and Croucher AJA); KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11, 12-13 [9]-[14] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); McCartney v The Queen (2012) 38 VR 1, 11-12 [46]-[51] (Maxwell P and Neave JA and Coghlan AJA).

[34] House, 504-5 (Dixon, Evatt and McTiernan JJ).

[35] Ruling [13] (boots); [25] (car); [29] (jacket); [35]-[36], [39] (shirt).

[37] Ruling [18] (boots); [25] (car); [30]-[31] (jacket); [34] (shirt).

[38] Bayley v The Queen [2016] VSCA 160, [130]-[131] (Warren CJ, Weinberg and Priest JJA) ('Bayley').

[40] See generally R v Baden-Clay [2016] HCA 35; (2016) 334 ALR 234, 246 [65] ff (French CJ, Kiefel, Bell, Keane and Gordon JJ).

[42] [2015] VSCA 148 (12 June 2015) (Maxwell ACJ, Redlich and Weinberg JJA).

[44] See Tran (1990) 50 A Crim R 233, 243 (McInerney J); Joyce [(2002) [2002] NTSC 70; 173 FLR 322] (17 December 2002) [9] (Angel J); R v Gardner and Coates [2003] VSC 153 (21 May 2003) [20] (Smith J); R v Juric [2003] VSC 382 (13 August 2003) [72] (Nettle J); R v Guingab [2010] VSC 256 (15 June 2010) [64(c)] (T Forrest J) upheld by R v DG [(2010) 28 VR 127;] VSCA 173 (7 July 2010) (Buchanan, Weinberg and Bongiorno JJA); Wise [2016] VSCA 173 (21 July 2016) [70] (Warren CJ, Weinberg and Priest JJA).

[46] See fn 61 for an explanation of likelihood ratios.

[47] Section 55(1).

[48] Section 56(1).

[49] In R v Chee [1980] VicRp 32; [1980] VR 303, the Court (McInerney, Anderson and Brooking JJ) described the position at common law (at 308):

Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne, [1973] AC 729, at p. 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.

[50] IMM v The Queen (2016) 330 ALR 382, 391 [44] (French CJ, Kiefel, Bell and Keane JJ) ('IMM').

[52] Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, 498 [5].

[53] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at 1025 [2]; [2002] HCA 31; 190 ALR 370 at 371. The definition of relevance is taken from the Evidence Act 1995 (Cth), s 55. That legislation does not govern the present case, but the definition reflects the common law.

[54] See Adam v The Queen (2001) 207 CLR 96, 105 [22] (Gleeson CJ, McHugh, Kirby and Hayne JJ).

[55] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 653 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[56] R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629, 646 [90] (Whealy J); Louizos v The Queen [2009] NSWCCA 71; (2009) 194 A Crim R 223, 230 [31] (Howie J).

[58] Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521, 568 [177].

[61] In Mr Gellatly's report dated 21 February 2014 (Exhibit 1A) it is said:

When assessing DNA evidence, Person of Interest DNA profiles (known as reference samples) are compared to one or more evidentiary DNA profiles. ... LRs assess the strength of the DNA evidence by comparing two alternative explanations for this evidence. It is usually calculated assuming the minimum number of contributors necessary to explain the evidentiary DNA profile. It should be noted that varying the number of contributors influences the magnitude of the LR; additional calculations can be performed if deemed necessary.

[62] I did not take counsel to be invoking the coincidence rule provided for in s 98 of the Evidence Act 2008, since s 98 is limited in its operation to two or more 'events' (DNA being situated on an item not being an 'event'). Of course, were coincidence reasoning available in relation to the DNA, by virtue of s 101(2) the evidence could not 'be used against the [respondent] unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the [respondent]'.

[64] For example, ss 97 and 98, which require tendency and coincidence evidence to have 'significant' probative value.

[69] R v Joyce [2002] NTSC 70; (2002) 173 FLR 322 (Angel J).

[70] R v GZ [2015] ACTSC 229 (Burns J).

[72] Jenny Wise, in Providing the CSI Treatment: Criminal Justice Practitioners and the CSI Effect (2010) 21 Current Issues in Criminal Justice 383, 384, described the effect as follows:

As the name suggests, the CSI Effect relates to the popularity of the American television program: CSI. CBS screened its first season of CSI in 2000. In its second season, CSI was rated as the second most popular television program in America, and has since remained one of the most popular programs of the decade (Cole and Dioso-Villa 2007). The show follows a number of detectives and forensic scientists as they solve serious crimes. One of the main features of the show is its regular use of forensic science accurately to identify offenders. Science is portrayed as the overarching truth that exposes the lies of the offender and provides certainty to an investigation. The popularity of this type of show led to the creation of other similar television programs such as Law and Order SVU: Special Victims Unit, NCIS: Naval Criminal Investigation Service, and Criminal Minds.

[73] See CGL v DPP (No 2) [2010] VSCA 24; (2010) 24 VR 482, 485 [18] (Buchanan JA).

[74] CGL v DPP (No 2) [2010] VSCA 24; (2010) 24 VR 482, 484 [13] (Maxwell P, Buchanan and Bongiorno JJA agreeing).