R v GZ [2015] ACTSC 229

CRIMINAL LAW - Particular Offences - offences committed against children - sexual offences - sexual intercourse with a child under the age of 10 years.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - DNA evidence - whether the probative value of the evidence is outweighed by the danger of unfair prejudice that its admission would cause - s 137 Evidence Act 2011 (ACT) - risk that the jury will give evidence greater weight than it is due - evidence ruled inadmissible.

Evidence Act 2011 (ACT) s 137

**1. The accused was charged with two counts of sexual intercourse with a child under the age of 10 years. These charges were based on allegations that the accused licked the complainant's genital area. The matter was set down for trial by jury commencing 29 June 2015. I note that this was the third time these allegations had gone to trial. The first trial ended with a hung jury. The accused was convicted of the offences at his second trial; however, those convictions were later overturned by the Court of Appeal: see GZ v The Queen [2015] ACTCA 11.

2. On the first day of the trial, the accused raised an objection to DNA evidence that the Crown intended to lead on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice that its admission would cause pursuant to s 137 of the Evidence Act 2011 (ACT). At that point, the evidence had not yet been led, but the parties were content for me to make a ruling based upon the material which was found in the written outline of submissions for the accused.

3. After hearing from both parties, I ruled that the DNA evidence should be excluded pursuant to s 137 of the Evidence Act 2011 (ACT). I gave brief reasons for my decision at the time, however, I now consider it appropriate to give more comprehensive written reasons. These are those reasons.**

**4. DNA was located on the interior of the complainant's underwear. The DNA was alleged by the prosecution to have originated from the accused's saliva. The prosecution contended that the DNA was transferred from the complainant's skin to her underwear by a process called secondary transference.

5. The complainant had spent time with the accused at his house on the day in question. It is of particular significance to note that there was no dispute that there was ongoing physical contact between the complainant and the accused. This 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. There was evidence called at the accused's previous trial that his DNA may be expected to be found on the clothes that the complainant wore that day. When the complainant returned home that evening 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 single lunch order paper bag. This clearly raised the possibility of contamination of the underwear with DNA from the outer clothing worn by the complainant.

6. The prosecution did not dispute the possibility that the DNA later located on the inside of the complainant's underwear could have been transferred from the complainant's outer clothing while the tights and the underwear were left intertwined on the bedroom floor overnight, or when they were placed together in the lunch bag the next day.

7. The prosecution had been put on notice of the accused's objection to the reception of the DNA evidence, as he had raised the same objection at his previous trials. Written submissions filed by the accused prior to trial, and provided to the prosecution prior to trial, clearly raised the proposition that the proposed expert testimony to be called by the prosecution would not allow the jury to determine which possible mechanism by which the DNA could have come to be on the complainant's underwear was more likely. The prosecution made no submission that any proposed 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. This appeared to be a change in position by the prosecution from the position it had taken in the Court of Appeal, where the prosecution submitted that the expert evidence could assist the jury in determining the likely method of secondary transference of the DNA because of the quantity of DNA that was found on the complainant's underwear. No such submission was made by the prosecution at the third trial.

8. The prosecution proposed asking the jury to infer that the DNA found on the complainant's underwear was deposited by secondary transference from her skin, having been initially deposited on her skin through the accused licking her. In a criminal case, a jury is inevitably directed that it may only draw an inference from evidence if it is the only rational inference that is available. In this case, the prosecution did not dispute the possibility that the DNA evidence came to be on the complainant's underwear through contamination with her other clothing. As the prosecution did not submit that any expert testimony could assist the jury in determining how the DNA came to be on the complainant's underwear, I determined that there was a real risk that the jury would give the evidence more weight than it was due.

9. In those circumstances, pursuant to s 137 of the Evidence Act 2011 (ACT), I ruled that the DNA evidence was not admissible.**

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.