HOEBEN CJ at CL:
Nature of proceedings
This is an appeal brought by the Director of Public Prosecutions (DPP) pursuant to s5F(3A) of the Criminal Appeal Act 1912 in relation to rulings on the admissibility of evidence by North DCJ on 19 February 2014 and 11 November 2014.
Section 5F(3A) relevantly provides:
"5F(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."
The respondent has been charged with one count of sexual intercourse with a child under 10 years and in the alternative, indecent assault on a person under 16 years.
The Crown case is that the respondent digitally penetrated the 7 year old complainant as they sat on a lounge at her grandmother's house. They had been left alone when her mother went upstairs to change her younger son's nappy. The complainant's mother returned downstairs to get some baby wipes and was approaching a glass door that led into the lounge-room when she saw the respondent put his right hand in between her daughter's legs, pull her shorts and underpants to one side, and then appear to push his fingers into the area of her daughter's vagina. The mother confronted the respondent who then left.
The matter has a most unfortunate history. The respondent's trial has been fixed for hearing on six occasions: 2 October 2012, 27 May 2013, 5 August 2013, 17 February 2014, 21 July 2014 and 10 November 2014.
On 19 February 2014 during the course of the trial which commenced on 17 February, North DCJ excluded DNA evidence relating to the presence of two male DNA profiles on the complainant's underpants, one of which was consistent with that of the respondent. His Honour also excluded evidence relating to an area of staining, consistent with blood, on the interior crotch of the underpants and on the exterior hip. The trial continued thereafter but was aborted for other reasons after the Crown address.
Another trial commenced on 10 November 2014 before North DCJ. The Crown sought to adduce evidence comprising a further DNA certificate providing evidence of the location of the complainant's DNA in the underpants and referring to the presence of blood on the complainant's underpants. The Crown also sought to adduce medical evidence which depended upon the admissibility of the DNA evidence for its admissibility. On 11 November 2014 North DCJ rejected the further DNA certificate and the medical evidence.
The grounds of appeal relied upon by the DPP are:
Ground 1 - His Honour erred in excluding the evidence of Michele Anne Franco in her expert certificate dated 18 July 2014 and a consequent order excluding the expert opinion of Dr Deborah Perkins in her addendum report of 16 July 2014.
Ground 2 - His Honour erred in excluding the evidence of Michele Anne Franco in her expert certificates dated 18 May 2012, 28 May 2013 and 1 July 2013.
The matter has been stood over for trial in the District Court on 18 May 2015.
FACTUAL BACKGROUND AND CROWN CASE
The complainant, who was then aged 7, with her mother and two brothers aged 8 and 1, was visiting her grandmother on 26 December 2011. The respondent who lived nearby was also present. The respondent was well known to the complainant's mother and to the complainant. The grandmother's home was on three levels, with the bedrooms on the top level and the lounge-room on the middle level. There was a stairwell between each floor with a glass door leading from the stairwell to the lounge-room.
Between 8.30pm and 9pm the complainant's mother left the lounge-room in order to change the youngest child's nappy in one of the bedrooms. The respondent and the complainant remained alone in the lounge-room. After being upstairs for about ten minutes, the applicant's mother decided to go downstairs to get some wipes and as she did so, she observed the respondent sitting next to the complainant. She then observed the complainant to engage in the conduct already described. At this time the complainant was wearing small pink and blue coloured shorts, underpants and a coloured t-shirt. In a later statement the complainant's mother said that she also observed the respondent touch the complainant's breast area.
After the complainant's mother had told the respondent to leave, and he had departed from the premises, she remained extremely upset and told her mother and another person, Ms Turner, who was also at the premises, what she had seen. At this time the complainant was also upset and crying.
The complainant's mother said that she took the complainant into the downstairs toilet where she pulled down her shorts and underwear to check if there was any bleeding. She did not notice any bleeding but saw some redness. The complainant's mother contacted the authorities and police arrived at the scene at about 9.30pm.
There was an issue before the primary judge as to exactly how the police came into possession of items of clothing belonging to the complainant. It was the complainant's mother's evidence that she removed the complainant's shorts and underpants and handed them to a female police officer, Constable Allen. The police officer's evidence is set out in a statement of 10 February 2012:
"Two ambulance officers arrived at the location. I then explained to [the complainant] that I needed to take the pants and underwear she was wearing with me. [The complainant] immediately started crying. [The complainant's] mother spoke to her and convinced her to put her pyjamas on. [The complainant] went to the bathroom and came back out wearing her pyjamas. [The complainant] handed me her underwear and pants and I took them out to Inspector Cullen who gave me two brown exhibit bags. I put the underwear and pants in separate brown exhibit bags and handed the two bags to Constable Fischer. I then went in the ambulance with [the complainant] and her mother to the Sydney Children's Hospital."
It was Constable Allen's recollection that she was wearing gloves when she was given the complainant's clothing.
There was apparently some delay at the Children's Hospital and no examination was conducted that night, although a history was obtained. The complainant returned to the hospital the following afternoon where she was examined by Dr Deborah Perkins. During the examination of the complainant's vagina, two discrete areas of erythema, or redness of the skin, were identified. One was at the five o'clock position on the inner vestibule wall with some extension up the left vestibule wall of the vagina. The second area was on the right vestibule wall. The vestibule is the area immediately in front of the hymen. The hymen showed no evidence of injury.
The complainant was interviewed at 1.10pm on 27 December 2011. During that interview she told police that the respondent, whom she referred to as "Alex", was her "nan's next door neighbour". She said that he touched her on her "rude part". When asked about touching, the applicant said it was "in my clothes". She also referred to the touching as "deep" and "down". The complainant said that when she was touched, she felt "sore" everywhere.
Constable Allen, who received the complainant's shorts and underpants, placed them in two separate exhibit bags, but did not herself mark each exhibit bag so as to identify its content. Although the two exhibit bags were entered into the police exhibit system, one of them was incorrectly marked as containing a singlet. The other was correctly marked as containing the complainant's shorts. The contents of the exhibit bag which was wrongly marked as containing a singlet, were not forensically examined because there was no complaint at that time relating to the complainant's upper body. Only the complainant's shorts were forensically examined. Dr Franco, a DNA expert, prepared two reports concerning DNA found on the complainant's shorts.
On 30 May 2013 during the course of the trial which commenced on 27 May, the error in relation to the labelling of the exhibit bag containing the complainant's underpants was detected. This led to the aborting of that trial. The evidence of the police officer who discovered the error (Detective Hector), was that when she opened the incorrectly labelled exhibit bag it was sealed and there was no evidence that the bag had been previously opened. When the underpants were discovered, they were referred to Dr Franco for DNA analysis.
Three analysts' certificates were produced by Dr Franco. Only the first and third certificates are relevant. Their content is as follows:
"Certificate 18/5/2012 - complainant's shorts (the first certificate)
Upper inside front
The DNA recovered (using the Profiler Plus System) is a mixture that originates from more than one individual. The major component of this mixture is consistent with originating from female individual "A". The minor component is too weak and too complex to determine the profiles of the individual contributors.
Additional DNA testing using the "Y-Filer System" was conducted. The Y-Filer profile recovered is a mixture that originates from two male individuals. Due to the complexity of the mixture, the profiles of the individual contributors could not be determined.
Lower Inside Front
The DNA recovered (using the Profiler Plus System) is a mixture that originates from more than one individual. The major component of this mixture is consistent with originating from female individual "A". The minor component is too weak and too complex to determine the profiles of individual contributors.
Additional DNA testing using the "Y-Filer System" was conducted. The Y-Filer profile recovered is a mixture that originates from at least three male individuals. The major component of the mixture matches the Y-Filer profile of Shaheed Ali. Therefore Shaheed Ali cannot be excluded as the major source of male DNA recovered in the mixture. In addition, all male relatives on the paternal line and approximately 1 in 750 unrelated males in the general population cannot be excluded. The minor component is too weak and complex to determine an individual profile."
Certificate 1/7/2013 - complainant's underpants (the third certificate)
Exterior crotch
DNA testing using the Y-Filer System was conducted. The male DNA recovered is a mixture that originates from at least two individuals.
Due to the complexity of the mixture, the profiles of the individual contributors could not be determined.
Exterior rear right side
DNA testing using the Y-Filer System was conducted. The male DNA recovered is a mixture that originates from at least two individuals. Due to the complexity of the mixture, the profiles of the individual contributors could not be determined.
Interior crotch
Positive screening test for blood - DNA testing using the Y-Filer System was conducted. The male DNA recovered is a mixture that originates from more than one individual. The major component of this mixture matches the Y-Filer profiler of Shaheed Ali and is also expected to match all males of his paternal line. Additionally, this major profile is expected to occur in approximately 1 in 750 unrelated individuals in the general population. The minor component is too weak to determine the profiles of the individual contributors.
Stain on exterior left hip - Positive screening test for blood. The DNA recovered is consistent with originating from individual "A".
Stain on interior crotch - Positive screening test for blood. The DNA recovered is consistent with originating from individual "A"."
In cross-examination it was made clear that the screening test for blood was a presumptive or indicative test.
The ruling as to admissibility of 19 February 2014
Following a three day voir dire on the admissibility of the DNA Certificates, North DCJ excluded the evidence. His Honour's process of reasoning was as follows.
His Honour reviewed the evidence on the voir dire, paying particular attention to the mislabelling of the exhibit bag which was found to contain the complainant's underpants and the explanation for why the underpants had not been forensically examined until June - July 2013. His Honour said in relation to the evidence of Dr Perkins:
"Dr Deborah Perkins was called on the voir dire. The accused objected to parts of her opinion in her expert certificate dated 29.12.2011. This was on a discrete issue and I allowed her to say under the heading "opinion" in her expert certificate dated 19 January 2012 the following: "The findings of two discrete areas of erythema in the vestibule could be consistent with the allegation". In doing so I accepted that her original opinion in this regard contained evidence where any probative value was outweighed by the danger of unfair prejudice to the accused."
It should be noted that no complaint has been made by the Crown in relation to this part of his Honour's ruling.
His Honour then set out the contents of the three DNA certificates and reviewed the evidence of Dr Franco. His Honour noted that Dr Franco acknowledged the possibility of secondary transfer of DNA but that she thought it was more likely that an indirect transfer of DNA would come from a bodily fluid such as saliva. Dr Franco said that there were many variables associated with the secondary transfer of DNA and that something was less likely to be found on the inside of a garment than on the outside. Dr Franco agreed that sweating could help secondary transfer but that bodily fluid was more likely than skin cells to transfer DNA.
Having reviewed the evidence, the primary judge expressed concern as to the continuity of custody of the garments which were the subject of the DNA certificates, in particular the underpants. His Honour noted that there was evidence from the complainant's mother that she handed the complainant's clothing to the police but that the evidence of the complainant and Constable Allen was that the complainant had removed the clothing herself and handed it to Constable Allen.
His Honour noted the concessions by Dr Franco as to the possibility of secondary transfer of DNA onto the underpants. He also noted the presence of other male DNA on the underpants which in his opinion had not been satisfactorily explained.
His Honour concluded that the evidence left open the distinct possibility that contamination and/or transference of the DNA onto the underpants had occurred. He found that no-one had posited a theory as to how the other male DNA, not in anyway associated with the respondent, was found on the underpants. He noted that the respondent had been physically close to the complainant from time to time during the day before the incident was alleged to have occurred.
His Honour expressed his conclusions as follows:
"In these circumstances I find that the DNA evidence has relatively slight probative value given the issues surrounding its retrieval and the lack of continuity, combined with the fact that the accused and the complainant were in close contact leading up to the alleged offence. Further there is the presence of other male DNA which cannot be satisfactorily explained given the evidence:
…
Given the fact that there is no satisfactory explanation for other male DNA and the complete breakdown in continuity means that this might not only be unfairly prejudicial to the accused under s135(a) but also could be misleading or confusing to a jury under s135(b).
It is difficult to see what a jury would make of the number of people who may have come in contact with the clothing or with the complainant prior to it being analysed. Further it could be misleading and confusing for a jury to hear of other male DNA being recovered albeit not being able to be profiled."
By reference to s137 of the Evidence Act 1995 (NSW) his Honour said:
"The section is concerned with the admissibility of evidence and it is necessary to look at the whole evidence in the context of the case. Here the retrieval of the evidence from the child and its subsequent continuity is shrouded in doubt. It is not certain who handled the clothing and why the underwear, which was the most important piece of clothing in the whole case, came to be labelled "singlet top".
The possibility of contamination and of secondary transfer is real in the circumstances of this case.
There must be a real risk and not a hypothetical one that the probative value of the evidence will be outweighed by the danger of unfair prejudice to the defendant.
Section 137 applies where the jury may give more weight to a particular piece of evidence than it deserves. (See R v Yates [2002] NSWCCA 520) because there is some prejudice emanating from the evidence that will be likely to cause the jury to overreact to it in an illogical or irrational manner.
Here I do not think that there are directions or warnings that could be given to the jury because of the uncertain nature of what happened to this evidence from the moment police sought to retrieve it up until it was finally tested.
Keeping in mind also s90 the general discretion to exclude admissions or facts I am satisfied that due to the lack of continuity and the distinct possibility of contamination and/or transference that the prejudicial value of this evidence outweighs its probative effect. This is not just any evidence as DNA carries with it the backing of science and may well be given more weight by a jury."
Ruling on Admissibility on 11 November 2014
On 18 July 2014 Dr Franco provided a further certificate identifying the female DNA located in the area of the discolouration or stain, thought to be blood, on the inside crotch and left outside hip of the underpants as that of the complainant. The complainant's DNA sample had been provided for comparative analysis on 7 July 2014. Testing was done on the stain found on the left hip to establish that it was human blood. As at the date of the second ruling, this level of testing was not done for the blood found on the interior crotch area. In this area the presumptive test result was positive for blood but not that the blood belonged to the complainant.
At the commencement of the trial on 10 November 2014 which was again before North DCJ, the admissibility of this fourth certificate and further medical evidence was objected to. The Crown accepted that the admissibility of the further medical evidence was dependent on the fourth DNA certificate being admitted.
Evidence was taken from Dr Franco. She confirmed that the stain on the left hip was definitely blood. She said that in relation to the stain on the interior crotch, a screening test was presumptively positive for blood and because the DNA located there was from a very strong source, it was her conclusion that the stain was most likely blood from the complainant.
The Crown submitted that the material in the fourth certificate was not caught by his Honour's earlier ruling because it confirmed that the female DNA profile, located within an area of staining on the interior crotch area, was likely from blood. The Crown submitted that his Honour's previous ruling related to the admissibility of the location of the respondent's DNA, not that of the complainant. The Crown submitted that the significance of the blood stains had not been raised in his Honour's previous ruling.
The additional evidence of Dr Perkins also relied upon by the Crown was:
"The relevant findings during the medical examination of [the complainant] conducted at the Child Protection Unit at Sydney Children's Hospital on 27 December were as follows:
The genital examination performed by Dr Deborah Perkins with the aid of a colposcope revealed two discrete areas of erythema (redness) … The area at the 5 o'clock position was circular and measured approximately 6 mm in diameter and the area of erythema at the 11 o'clock position measured approximately 3 by 2 mm.
This redness most likely represents a residual to recent trauma. Trauma with a digit could cause this type of injury and the finding would support the application of digital penetration of the vulva area, approximately 20 hours prior to the examination."
The primary judge found that nothing had changed since his first ruling and that the fourth certificate, and the medical evidence relating to it, did not cure the problems of continuity, possible contamination or secondary transference. His Honour excluded the evidence.
In reaching that conclusion, his Honour reviewed the further evidence of Dr Franco and noted that it was her opinion that the area tested from the interior of the crotch of the underpants contained the complainant's blood which was a stronger amount of DNA than found in the left hip area which had been positively identified as the complainant's blood. Dr Franco thought it was unlikely to result from touching by a finger, unless it was bleeding or unless it was loaded up with saliva.
In relation to that evidence, his Honour noted that neither the mother nor Dr Perkins saw any blood and that Dr Perkins when describing her examination of the complainant made no mention of any blood. His Honour noted that the complainant's mother said that she was specifically looking for blood and did not see any when she examined the complainant.
His Honour's conclusion was:
"However in my ruling in the second trial regarding the first three certificates I specifically mentioned the blood originating from "individual A" in two areas. What has changed? One area, the left hip, has been positively identified as blood belonging to the complainant. The crotch area contains, in Ms Franco's opinion, blood also belonging to the complainant. The final test, as I have said, has not been done to positively identify it as blood.
However, all the other matters considered by me in rejecting the first three certificates remain the same. The underpants were possibly pulled down and handled by the mother. They were removed and handled by the complainant herself and they were handed by her to police and then handled by various police either putting it into a bag for forensic reasons and eventually mislabelled.
In my view nothing has changed apart from the left hip area being positively identified and Ms Franco being of the strong opinion that there was blood of the complainant in the area of the crotch on the interior of the underpants. This testing, in my view, does not cure the problems of continuity and possible contamination and/or secondary transference. Accordingly I intend to exclude exhibit "A" and it therefore it follows that I exclude exhibit "E", the doctor's addendum."
The appeal pursuant to s5F(3A)
It is convenient to deal first with the DPP's second ground of appeal:
Ground 2 - His Honour erred in excluding the evidence of Michele Anne Franco in her expert certificates dated 18 May 2012, 28 May 2013 and 1 July 2013.
The DPP submitted that the evidence of Dr Franco was that in relation to the inside crotch of the underpants, it was possible for the male DNA to have been deposited there by direct transfer. She said it was also possible for the male DNA to have been deposited there by indirect transfer if a number of variables aligned but that it was more likely for an indirect deposit to be on the outside of clothing rather than on the inside of clothing or on a more intimate part of the clothing because such places were not generally in contact with surfaces or other places where DNA could be deposited and transferred.
The DPP submitted that the cross-examination of Dr Franco did not seek to cast doubt on the fact that the respondent's DNA was on the inside of the complainant's underpants but sought to offer an explanation as to how it may have got there. The issue raised by the defence was that the complainant may have acquired the respondent's DNA on her hands during the course of her contact with him during the day and that she may have then transferred his DNA from her hands to her clothing when she removed her clothing and handed it to the police officer.
The Crown submitted that ordinarily continuity in relation to clothing which produced DNA results and contamination were each issues of fact to be determined by the jury. It submitted that in this instance there was no good reason to exclude the DNA evidence. The DPP submitted that by basing his rejection of the evidence on issues of continuity of possession and the possibility of contamination of the underpants, his Honour had trespassed upon the function of the jury.
The DPP submitted that the problems with continuity and contamination were significantly overstated. In relation to continuity, the DPP submitted that the police continuity chart and the evidence of police officers whose actions gave rise to that chart, did not provide a basis for a finding that continuity or chain of possession could not be established. The DPP submitted that while it was clear that the exhibit bag containing the underpants was wrongly labelled, there was no evidence that there had been any interference with the exhibit between when the underpants were placed in the exhibit bag by Constable Allen and when the error was discovered by Detective Hector. On the contrary, the evidence was that the exhibit bag marked "singlet" had remained sealed throughout that period. In any event, that issue remained a jury question.
In relation to contamination, the Crown submitted that the only issue was whether the complainant's mother, in addition to the complainant, had touched the underpants before they were handed by the complainant to Constable Allen. The presence of DNA from another male in a quantity too low for analysis on the underpants did not confound the finding of DNA consistent with that of the respondent. On the contrary, the presence in the household of the complainant's two brothers and the explanation by Dr Franco of secondary transference of DNA provided an adequate explanation. Dr Franco gave a specific example of transfer of DNA in the wash, having noted that the complainant lived with her two brothers, each being a half brother with different fathers.
The DPP submitted that it was not unusual for evidence relied on by the Crown to be open to more than one interpretation or being capable of giving rise to more than one inference. It submitted that this was not a basis for ruling the evidence inadmissible. Provided that the evidence was capable of bearing the interpretation, or of giving rise to the inference contended for by the Crown, it was admissible even if the defence were able to suggest some other interpretation or inference consistent with the innocence of an accused. Such a circumstance did not establish that the probative value of the evidence was outweighed by the danger of unfair prejudice. The DPP submitted that it was an essential function of a jury as judges of the facts, to determine what interpretation should be given to such evidence and that it was the jury and the jury alone which determined what inferences should be drawn from such evidence as they accepted.
The DPP relied upon R v Kalajzich (1989) 39 A Crim R 415 at 430 where the Court (Yeldham, Carruthers and Wood JJ) approved the following statement of principle by McPherson J in R v Berrill [1982] Qd R 508; 5 A Crim R 431:
"Whether it (the evidence in question) in fact bears the interpretation placed upon it by the prosecution is a matter of inference, and as such, a matter of fact for the jury to whose decision it should ordinarily be left … . For the judge to withdraw it from the jury simply because some possible alternative inference is open involves a usurpation of the jury's function …."
The DPP submitted that the approach to ss 135 and 137 of the Evidence Act by his Honour was contrary to the decisions of this Court in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 and R v XY [2013] NSWCCA 121; 84 NSWLR 363. The DPP submitted that in accordance with those decisions, his Honour's task in determining the admissibility of the certificates required an assessment of whether the evidence was "capable" of establishing a particular issue. The DPP submitted that his Honour's task did not require the assessment of the credibility, reliability or weight of such evidence since those were matters which should be left to the jury if the evidence were admitted.
The DPP submitted that his Honour's finding that the jury would overreact or approach the evidence in an illogical or irrational manner by reason of the fact that the certificates had the backing of science, understated the capacity of the jury to understand evidence which was not particularly complicated. The DPP submitted that the evidence of the respondent's DNA being in the complainant's underwear was not manifestly unreliable such that a jury would attach more weight to it than it deserved. The DPP disputed his Honour's conclusion that no directions could be given to the jury as to the uncertain chain of continuity and that the importance of that issue was overstated by his Honour.
The respondent raised no additional arguments beyond those which had been put to the primary judge. The respondent relied upon his Honour's findings and his Honour's reasoning.
Consideration
The submissions of the DPP should be accepted. While there were difficulties with the chain of possession, and there was a possibility of contamination, those difficulties were overstated by his Honour. They were issues which were quite capable of being explained to the jury and understood by them. Most importantly, however, his Honour's approach to the question was not in accordance with the proper application of s137 of the Evidence Act 1995. In R Shamouil Spigelman CJ (with whom Simpson and Adams JJ agreed) said in relation to s137:
"60 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.
…
64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 275, this is not a permissible "basis for enlarging the powers of a trial judge at the expense of the traditional jury function". In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s137."
In R v XY Basten JA (with whom Hoeben CJ at CL and Simpson J agreed) said in relation to s137:
"42 There are a number of points to make in relation to this statement. First, s 137 only requires the court to balance different qualities of particular evidence proffered by the prosecution (namely, probative value and unfair prejudice). It does not require assessment of the proffered evidence by reference to other aspects of the prosecution case. Nor does it require a balancing of the proffered evidence against conflicting evidence likely to be led for the defence: R v Cook [2004] NSWCCA 52 at [43] per Simpson J.
43 Secondly, the proposition is concerned with issues of "reliability and credibility". It does not deny that an assessment must be made of the "probative value" of the proffered evidence. Rather, the Chief Justice noted the definition of "probative value" in the Dictionary to the Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": at [61]. He noted that "[t]he focus on capability draws attention to what it is open for the tribunal of fact to conclude": at [61]. He further opined that reference in the definition to how the evidence could "rationally" affect the probability of a fact also directed attention "to capability rather than weight": at [62]. This proposition may be thought ambiguous, in that assessing "the extent" to which evidence could affect the probability of a fact is to assess its weight. Read in context, the reference to "weight" should be understood as a reference to the weight likely to be given to the evidence by the jury, acting rationally. It is that exercise which was rejected at [61].
44 Thirdly, adoption of "a restrictive approach" was not intended to exclude all consideration of credibility and reliability. There must be, as the Chief Justice noted, an initial assessment as to whether it was open to a jury acting reasonably to use the proffered evidence in assessing the existence of a fact. If the trial judge were satisfied that evidence could not rationally affect the assessment of the probability of a fact in issue, it would not be relevant evidence and would therefore not be admissible: Evidence Act, ss 55 and 56. That, however, is not the end of the exercise. The extent to which the evidence could rationally affect the probability of a fact in issue involves an evaluative judgment. That judgment is not a forecast of the weight the jury is likely to give the evidence, nor is it a statement of the weight the judge would give the evidence. That is so for a number of reasons. For example, the evidence is being assessed in isolation: its ultimate weight will often depend upon circumstances not yet fully revealed. Were that not so, a different assessment might be made depending on the stage at which the question of admissibility was determined. Often it will be determined on a voir dire before the trial properly opens. It would be most unfortunate if the prosecution were required in some manner to call the whole of its case to demonstrate the probative value which the evidence, seen in context, would provide. Further, even if some overall assessment were required, as may be necessary in applying the s 5F(3A) test, it is likely to be undertaken, properly, on the papers and not by calling oral testimony.
45 Fourthly, the reasoning in Shamouil should not be extracted from its factual context. Mr Shamouil was charged with shooting a Mr Dawood (the victim). Shortly after he was shot, the victim provided a detailed description of the shooter to police. Less than three weeks later, he identified the shooter from a board containing 20 photographs. He later made a statement retracting his evidence. If his evidence had gone to a jury (as it did), there would have been issues as to credibility and as to the reliability of identification evidence, with its notorious difficulties. It was in this context that Spigelman CJ sought to focus on "what it is open for the tribunal of fact to conclude" and reject consideration of "what a tribunal of fact is likely to conclude": at [61].
46 Fifthly, Spigelman CJ did not deny the need to assess the probative value of the evidence, taken at its highest, for the purpose of the "weighing" exercise prescribed by s 137. When discussing unfair prejudice, the Chief Justice referred to the following passage in the judgment of McHugh J in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]:
"It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. ... It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."
47 The Chief Justice then noted at [74] in Shamouil:
"[The trial judge] said that 'juries can be seduced by unreliable identification evidence'. It was this which his Honour identified as constituting the 'real danger of unfair prejudice'. In this analysis his Honour makes no reference to the warning about unreliable evidence under s 165. Such a warning must be taken into account before drawing the conclusion that such prejudice as may arise would be 'unfair'."
…
66 The importance of Shamouil lies not in the precise language used (the judgment is not to be treated as a statute) but in the general principle it articulates. The operation of that principle may vary depending upon the circumstances of the case. In broad terms, the principle has three elements:
(1) in determining inadmissibility under s 137, the judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case;
(2) it follows from (1) that the judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight;
(3) it also follows from (1) that the judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight."
Keeping in mind the above principles, when one applies s137 of the Evidence Act to the three DNA certificates, it is apparent that the section does not bar their admissibility. It is open to a jury, acting reasonably, to use the certificates in assessing whether the respondent committed the offences with which he has been charged. The capacity of the certificates to establish that issue, as distinct from the weight likely to be given to them, is substantial. Accordingly, the certificates have significant probative value.
That has to be balanced against the capacity of the evidence to give rise to unfair prejudice, i.e. the likelihood that the jury would give the evidence more weight than it deserved or that it might inflame the jury or divert them from their task. For the reasons already given, such unfair prejudice is unlikely to arise given the relatively simple issues confronting the jury as to continuity, contamination and the possibility of secondary transfer. To the extent that there is such a risk, it can be adequately dealt with by appropriate directions. Directions of this kind relating to DNA evidence are frequently given by judges.
The proposition that DNA evidence carries with it the backing of science is true of all DNA evidence. This does not mean it is unfair. The issue of whether too much weight might be given to such DNA evidence can be adequately cured by appropriate directions depending upon the nature of the evidence.
It follows that when the balancing exercise required by s137 is appropriately carried out, the section does not preclude the admissibility of the three DNA certificates. This ground of appeal has been made out.
Ground 1 - His Honour erred in excluding the evidence of Michele Anne Franco in her expert certificate dated 18 July 2014 and a consequent order excluding the expert opinion of Dr Deborah Perkins in her addendum report of 16 July 2014.
The DPP repeated its submissions before the primary judge to the effect that the fourth certificate and the medical evidence were not covered by his Honour's ruling of 19 February 2014. The DPP submitted that the February 2014 ruling related to the presence of the respondent's DNA within the complainant's underwear, not the admissibility of evidence relating to the staining on the underpants, which had presumptively tested positive for blood.
The DPP submitted that the fourth certificate made it clear that the female DNA profile taken from the staining on both the exterior left hip and on the interior crotch was consistent with that of the complainant. Neither that fact nor the confirmation that the staining on the exterior left hip was human blood was previously known. That being so, the DPP submitted that the evidence could not fall within the ambit of the first ruling.
The DPP submitted that the fact that there were observable blood stains on the underpants negated concerns about tampering and continuity. This is because insofar as the evidence related to the complainant's blood on the underpants, there was no suggestion that this could have been influenced by contamination or otherwise.
The DPP submitted that for the same reasons the additional evidence from Dr Perkins to the effect that the complainant could have bled with the type of erythema which she observed had significant probative value because it had the capacity to rebut a substantial part of the defence case. It was the defence case during the aborted trial that the complainant's mother fabricated the allegation and caused her daughter to also fabricate the complaint.
The DPP submitted that his Honour erred in the way in which he assessed the admissibility of the fourth certificate and the addendum to the report of Dr Perkins. This was because his Honour considered that this evidence was covered by his earlier ruling and had not carried out the balancing exercise required by s137. The DPP submitted that his Honour had not considered the probative value of the evidence and balanced it against any unfair prejudicial effect. The DPP submitted that the fourth certificate and the addendum to Dr Perkins' report were clearly fresh evidence and could not fall within the ambit of his Honour's previous ruling.
The DPP submitted that had his Honour carried out the balancing exercise required by s137, he would have realised that the issue of continuity simply did not arise insofar as the complainant's blood on the underpants was concerned. This was because there was observable staining on the complainant's underwear in circumstances where the underpants were recovered by police shortly after the offence and placed in an exhibit bag. This made it highly unlikely that the exhibit was tampered with or contaminated. There was no evidence of how that could possibly have taken place. The DPP submitted that the very fact that the underpants had been placed in a bag incorrectly labelled made the prospect of any interference or contamination much less likely.
The DPP reiterated its earlier submissions that his Honour had erred in his approach to s137 generally in that matters of continuity and contamination were matters of fact and issues for the jury to consider and should not have been taken into account when considering admissibility. The DPP submitted that the lack of explanation of how the exhibits bag containing the underpants came to be mislabelled, that there was no adequate explanation for the failure to conduct testing before the second trial and that the previous trial had aborted due to the Crown's closing address, were matters irrelevant to the admissibility of the fourth certificate and the addendum to Dr Perkins' report.
The DPP submitted that the issue of whether the stain in the crotch of the underpants was blood from the complainant was an issue to be determined by the jury, having the benefit of the expert opinion of Dr Franco, to the effect that it was most likely the complainant's blood. The DPP submitted that his Honour was in error when he acknowledged this conclusion of Dr Franco, but determined that in order to make this finding admissible there had to be a further test to positively identify the blood. The DPP submitted that in doing so, his Honour implicitly rejected the expert opinion of Dr Franco which was impermissible in the context of purporting to apply s137.
The respondent relied upon the submissions which he had made to the primary judge and on the reasons given by the primary judge for rejecting the fourth certificate and the addendum to Dr Perkins' report.
Consideration
The DPP's submissions should be accepted. The fourth certificate and the addendum to Dr Perkins' report were not covered by the primary judge's ruling of February 2014. They raised different issues and his Honour was required to carry out the balancing exercise mandated by s137, i.e. balancing the probative value of the evidence against unfair prejudice. This his Honour did not do.
To the extent that his Honour purported to apply s137 to the admissibility of the fourth certificate and the addendum to Dr Perkins' report he was in error in that he did not consider the capacity of the evidence to establish the Crown case, but rather usurped the function of the jury by assessing its weight and reliability. In doing so, his Honour failed to follow the guidance provided by this Court in R v Shamouil and R v XY. Had the balancing exercise required by s137 been carried out, the section would not have rendered the evidence inadmissible.
This ground of appeal has been made out.
Sections 90, 135 and 136 of the Evidence Act 1995
For the reasons already given, none of those sections provide a basis for his Honour rejecting the four DNA certificates and the addendum to Dr Perkins' report. To the extent that his Honour relied upon s90, he did so on the basis that the unreliability of the evidence would make it "unfair" to permit its use in the trial. Similar considerations applied to his Honour's application of sections 135 and 136. The factors relevant to the application of these sections and the error in his Honour's approach have been considered above.
Jurisdiction to intervene
The respondent submitted that even if his Honour erred in the way in which he approached the application of sections 90, 135, 136 and 137 of the Evidence Act 1995, this did not enable the DPP to obtain an order under s5F(3A). The respondent submitted that the weight and reliability of the DNA certificates and the addendum to Dr Perkins' report have to be taken into account by this Court when deciding whether the exclusion of the evidence substantially weakens the prosecution case. The respondent submitted that the findings and criticisms of the primary judge of the weight and reliability of that evidence had the effect that its absence would not "substantially weaken" the prosecution case. He submitted that the evidence was so weak that it would almost certainly be rejected by the jury, even if it were admissible.
Consideration
This issue was considered by Simpson J in R v XY where her Honour said:
"119 Ironically enough, the evaluation of the importance of the evidence in question in the prosecution case involves a question similar to one which will be raised by the substantive appeal, should jurisdiction be established - to what extent, if at all, does this Court consider questions of the credibility, reliability, or weight of the evidence the subject of the appeal? In that context, in Shamouil, Spigelman CJ said:
"39 The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s 137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to 'the prosecution's case', to be considered as a 'case'. This section is not concerned with the weight of the Crown's evidence.
40 This Court should determine whether or not a ruling on the admissibility of evidence 'substantially weakens' the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations.""
It is apparent from that statement of principle that the respondent's submission is misconceived. What the Court looks at is the importance of the evidence in question on the assumption that the jury accept the evidence.
In this case the evidence in question has particular importance because of credit issues associated with the evidence of the complainant's mother. Her evidence as to what she observed the respondent doing would normally be the centrepiece of the Crown case. Based on what occurred in the aborted trial, that evidence will be challenged on the basis that she deliberately fabricated the allegation and persuaded the complainant to give evidence in accordance with it. In that context, the importance of the evidence in question is particularly significant because if accepted by the jury, it provides independent corroboration of the mother's evidence.
It follows that I am satisfied that if the evidence in question were excluded, the prosecution case would be substantially weakened so that the requirements of s5F(3A) have been made out by the DPP.
Orders
On finding error in an appeal under s5F(3A), this Court usually vacates the trial judge's ruling and remits the matter to be determined according to the Court's decision. There is power, however, for the Court to determine that the evidence, the subject of the appeal is admissible (R v Chanthovixay [2004] NSWCCA 285 at [60] and R v Frangulis [2006] NSWCCA 363 at [35]). Pursuant to s5F(5)(b). the Court may "give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against".
In the present case, for the reasons already given, I am satisfied that the evidence has "probative value" which is not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or cause or result in undue waste of time and is admissible for the purposes of sections 135 and 137 of the Evidence Act.
Submissions in relation to the evidence in question have already been heard and evidence taken over five days in the District Court. Moreover, the history of this case is most unfortunate in that it has been listed for hearing on six occasions and has proceeded to hearing, at least in part, on three of those occasions. The matter has now been listed for hearing on 18 May 2015 and it is important for the parties that the matter proceed on that date without further delay. For those reasons, I have concluded that it is in the interests of justice for the Court to determine the issue of admissibility rather than to remit the matter for further argument in the District Court. When this proposal was put to the parties during the hearing of the appeal, both the DPP and the respondent agreed that this Court should determine the issue of admissibility rather than remit the matter to the District Court.
When discussing the orders to be made, the Court determined that should the appeal be successful and the addendum to the report of Dr Perkins become admissible, the second last paragraph of that report should be amended so that it reads:
"This redness most likely represents a residual to recent trauma. Trauma with a digit could cause this type of injury and the findings are consistent with the allegation of digital penetration of the vulva area approximately 20 hours prior to the examination."
Accordingly, the orders which I propose are:
1. The appeal by the DPP pursuant to s5F(3A) is allowed.
2. The ruling of his Honour North DCJ on 19 February 2014 as to the admissibility of the DNA certificates, dated 18 May 2012, 28 May 2013 and 1 July 2013 and the ruling by his Honour of 11 November 2014 as to the admissibility of the DNA certificate, dated 18 July 2014, and the addendum to the report of Dr Deborah Perkins of 16 July 2014 are set aside.
3. The DNA certificates of Michele Anne Franco of 18 May 2012, 28 May 2013, 1 July 2013 and 18 July 2014, together with the amended addendum to the report of Dr Deborah Perkins of 16 July 2014, are admissible in these proceedings.
ADAMS J: I agree with Hoeben CJ at CL.
R A HULME J: I agree with Hoeben CJ at CL.
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Decision last updated: 25 June 2015