DPP v Wise

DPP v Wise - [2016] VSCA 173 - VSCA 2016 case summary — Zoe

[23]

The introduction of interlocutory appeals in criminal matters represents a radical departure from well-established, and authoritative, doctrine. The High Court has repeatedly spoken about the undesirability of 'fragmentation' of the criminal process. Interlocutory appeals involve just such 'fragmentation'. The legislature in this State has taken the view that this is a price worth paying.

There are, no doubt, cases where such 'fragmentation' can be justified. A swift and dispositive ruling by this court on a point of law that is critical to a trial may render that trial unnecessary, or significantly reduce its length. ...

At the same time, it must be borne in mind that the legislature has chosen not to confer a right of appeal in relation to interlocutory decisions in criminal trials. Rather, there are dual hurdles which must be overcome before this court will entertain an appeal against such decisions. First, there must be either certification, or a successful review against a refusal to certify. Secondly, the court itself must be satisfied that leave to appeal is warranted.

Rulings on points of evidence can be particularly problematic when viewed as suitable vehicles for interlocutory appeals. The legislature has itself recognised that fact. The criteria for certification in s 295 are different when it comes to rulings on evidence than they are in relation to other interlocutory decisions.

Evidentiary rulings are both commonplace, and numerous. They are routinely made in almost every trial conducted in this State. Many, if not most, such rulings are important. If a ruling is made in favour of the Crown, the prospects of conviction are enhanced. If the ruling goes against the Crown, those prospects are reduced.

There are real dangers if interlocutory appeals against rulings of that kind are too readily brought before this court. That is particularly so if those rulings turn, in part, upon matters of weight as assessed by a trial judge. These are qualitatively different from rulings on what might be termed 'pure points of law'. There is also a difference between a challenge to legal admissibility, and a challenge based upon the exercise of judicial discretion. An appeal against a decision as to legal admissibility is likely to provide guidance of a more general nature than an appeal against the manner in which a trial judge has balanced the various factors relevant to the exercise of judicial discretion.

As we have said, the overarching principle which governs the giving of leave to appeal is 'the interests of justice'. ...

[46]

Yes, so 3-2 is a further test for saliva; is that right?---Yes ... that is correct.

And the results are quite clear I think, in that [MA] is an assumed contributor, so that ... it was positive for [MA], was it?---Yes ... 3-1 was a tape-lift of a greater area of the inside front crotch area of the underpants; 3-2 was an excised sample of the fabric and as we know saliva can be absorbed into fabric and what we're looking for is amylase, so that tested positive to amylase which is contained in saliva and we obtained a full DNA profile from [MA].

Okay, and [the respondent], [LR] and [Ms VL] are excluded as contributing saliva; is that correct?---Not necessarily from contributing saliva, ... an explanation could be that the tape-lift is routinely done prior to the saliva testing, because ... the tape-lift is attempting to remove any surface epithelial cells and epithelial cells is what contains the DNA. So ... a thorough tape-lift was done of that area prior to the saliva testing and as the saliva is absorbed into the underwear it may not have epithelial cells there of the source of the saliva, so the DNA profile may not necessarily mean that that is the person which contributed the saliva, so I can't attribute the source to the DNA in this situation.

So you can't attribute it to [MA]?---No, because it would be an explanation maybe that ... being [MA's] underwear, ... and seeing the DNA profile, he's contributed quite a large amount of DNA to that area, so it makes sense that some of his DNA may still be remaining on the underwear after the tape-lift, but the two other contributors, if ... the two other individuals ... have in fact contributed, they were in quite low levels, so ... all of their DNA via epithelial cell removal may have been removed during the tape-lift, and the DNA sample which is 3-2 ... tested positive to amylase only, which is absorbed into the fabric and [MA's] DNA may have still been remaining with some [epithelial cells there and] it could be any of those contributors to sample 3-1, so I can't say whose saliva it is.

[56]

Probative value is said to mean the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

In my opinion, the amount of activity over many hours together at a barbecue that included quite an amount of drinking and, no doubt, food, utensils and other objects being passed around amongst a relatively small group of people is relevant to assessing the DNA evidence in the circumstances of this case. In addition, the obviously very forceful struggle involving three men, including the [respondent] being required to hold [MA] down must necessarily have involved a high degree of risk of likely transference of DNA.

This leaves aside the inevitable greetings that pass between people at a barbecue and what even a simply [sic] handshake can do in terms of transference of DNA, particularly in hot conditions where people are likely to be sweating. I note the time of the year involved and while I have no evidence about the weather it is clearly the height of summer in Melbourne.

If evidence is admissible then clearly it is a matter for a jury to assess the weight to be given to it if any. However, an assessment of probative value does require me to make some assessment of the weight that a jury could, acting reasonably, give to that evidence. I am obliged to assess what probative value the jury could assign to the evidence against which must be balanced the risk that the jury will give the evidence disproportionate weight. I must accept that the evidence is truthful, but it must still be assessed in the way I have described.

A number of matters traversed in cross-examination together with the written documents do raise issues with respect to such an analysis of just how probative this DNA evidence really is.

In the end in my opinion the DNA evidence does have probative value, but it is quite limited.

What is then required is the balancing exercise between the probative value and whether it is outweighed by the danger of unfair prejudice to the [respondent]. This involves a need to assess amongst other things the risk that notwithstanding appropriate warnings the jury may attach greater weight to the evidence than it should receive. I need to assess the risk notwithstanding appropriate jury directions and warnings.

The onus is on the [respondent] to satisfy the court that the probative value is outweighed by the danger of unfair prejudice. In my view that onus has been discharged.

I am satisfied that in all the circumstances of this case there is a real risk this evidence will be misused in some unfair way. There is a danger the jury may misjudge the weight to be given to it or engage in an illegitimate form or reasoning.

Section 137 is mandatory and in all the circumstances it compels me to refuse to admit the DNA evidence.

It is not really necessary to discuss s 135 at length and its discretionary language. Less there is any doubt about the matter though, absent s 137 and its mandatory terms, I would have refused to admit the DNA evidence pursuant to s 135. In my view the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the [respondent] as well as being to an extent misleading and confusing to a jury.

[60]

His Honour applied the wrong test to the application for certification in that he did not apply the test of 'eliminating or substantially weakening the prosecution case' in that His Honour failed to correctly compare the DNA evidence in question to the rest of the case and estimate what proportion of the prosecution case it represented.
His Honour was required to conclude in his refusal to certify that the prospect that the rejected argument was without merit or was attended by sufficient doubt. During submissions both the bench and defence counsel conceded that the evidence did have some probative value albeit that probative force was outweighed by unfair prejudice.
Whilst the refusal to certify is an exercise of the trial judge's discretion, the prosecution submit that the DNA evidence in the prosecution trial, which is significant evidence in every sexual assault trial, will rationally affect the assessment of the probability of a fact in issue, namely whether it was the [respondent] who sexually assaulted the complainant in circumstances where the defence relied upon is one of a complete denial of any sexual activity between the [respondent] and the complainant.
In this instance the DNA evidence available to the prosecution is extracted from the front panel of the complainant's underwear via a tape lift procedure. The testing showed a mixture of three contributors. Those three contributors are the complainant (as an assumed contributor), the [respondent] (3.3 billion in favour of the [respondent] as a contributor) and the complainant's girlfriend (680 thousand in favour of the girlfriend as a contributor). The statistical weighting of 3.3 billion provides extremely strong support for the proposition that the [respondent] is a contributor to the sample. For the statistical weighting to be considered 'neutral', the likelihood ratio would have to be 1.
There was a further test performed, given the allegations of the complainant of fellatio being performed, for the presence of saliva. This test returned a positive result simply for the presence of saliva. It cannot be determined whose saliva it is but can be assumed that it is the saliva of one of the contributors to the DNA results. There are no other contributors to the sample, in fact other reference samples were excluded. There are no unknown contributors to this sample. It is this evidence that is both corroborative and central to the prosecution case.
His Honour relied upon the fact that there is complaint evidence available to the prosecution from a witness, [LR], that corroborates the complainant's account to make his finding that removal of the impugned evidence did not substantially weaken the prosecution case. The facts of the trial are that whilst there is what can be termed as 'recent complaint', the complaint statement to police by [LR] was made in September 2013, some 7 months after the event. Further, [LR] told the police in his statement that the complainant had shown him a t-shirt with semen on it on the morning of 10th February 2013 but the complainant did not inform the police of this. That this had occurred was put to him during cross examination at the committal hearing (2½ years after the date of the alleged offending) and he said that he 'may have shown him a t-shirt with semen on it' but 'he didn't remember doing that'. The t-shirt has not been located and was not available for testing.
The other complaint evidence available to the prosecution is the evidence of the complainant's then girlfriend, [Ms VL], who the complainant sees some 12 hours after the event and does not make his complaint to her until after it is obvious that their relationship has ended. The complainant then spends a further two days undecided about whether or not to report the alleged sexual offending by the [respondent] to the police.
Both these witnesses, that is [LR] and [Ms VL], while providing a degree of corroboration of the complainant's account, will be open to attacks upon their credibility. The absence of the DNA evidence will render this a word on word case in circumstances where independent evidence is available to corroborate the complainant's allegations. In the absence of the DNA evidence, careful consideration will need to be given as to whether there is a reasonable prospect of conviction. It may be that the trial may not be able to proceed.
The DNA evidence available needs no further interpretation for jury purposes. The results of the testing are unequivocal. There is nothing misleading or apt to cause confusion. How the evidence is to be argued against the facts that evolve during the trial is a matter for counsel and ultimately for the jury, properly directed by the trial judge. The question of transference of DNA is a question of fact for the jury.
For the prosecution to proceed with the trial hearing in the absence of corroborative independent forensic material is to substantially weaken if not eliminate the prosecution case.

[83]

59 GZ[35] is a more recent case in which a trial judge ruled DNA evidence to be inadmissible under s 137 of the Evidence Act 2011 (ACT). The accused was charged with two counts of sexual intercourse with a child under the age of 10 years, based on allegations that the accused licked the complainant's genital area. Relying on s 137 of the Act, the accused raised an objection to DNA evidence that the prosecution intended to lead on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice. The evidence showed that the complainant had spent time with the accused at his house, in circumstances where there was no dispute that there was ongoing physical contact between the complainant and the accused. As the trial judge observed, it was not a case where the complainant and the accused were unknown to each other such that DNA evidence may have provided very significant probative evidence as to the identity of an offender or evidence that a particular offence occurred.[36] When the complainant returned home after spending time at the accused's house, she took off her clothes, including a pair of tights - which she had worn as her outer clothing - and her underwear. She left them intertwined overnight on her bedroom floor. The next day, the complainant's mother placed the tights and underwear in a paper bag, raising the possibility of contamination of the underwear with DNA from the outer clothing worn by the complainant. DNA was located on the inside of the complainant's underwear, the prosecution alleging that the DNA originated from the accused's saliva. It was contended that the DNA was transferred from the complainant's skin to her underwear by a process of secondary transference. Pursuant to s 137, Burns J ruled the DNA evidence to be inadmissible, since no expert testimony would enable the jury to determine whether it was more likely that the DNA came to be on the complainant's underwear by a process of secondary transference as alleged by the prosecution, or by a process of secondary transference by contamination.[37]

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