R v Joyce [2002] NTSC 70;

R v Joyce [2002] NTSC 70; - NTSC 2002 case summary — Zoe

[18]

[2] This is an application pursuant to s 26L of the Evidence Act to determine the admissibility of certain DNA and other forensic evidence upon the trial of the accused charged on the first count of unlawful sexual intercourse without consent and the second count of doing an act of gross indecency in public with a boy under the age of 14.

[3] The offences are alleged to have occurred at the residential premises occupied by the accused when the complainant and another youth were sleeping there. It is common ground that forensic examination disclosed the presence of some DNA material compatible with that of the accused on the complainant's shorts, underpants and shirt. It is also common ground that the presence of DNA material could be explained by process of secondary transfer, whereby the clothing of the complainant had come into contact with furniture, floor or carpets in the accused's place of residence, thereby attracting the DNA material of the accused likely to be present at his premises. Furthermore, secondary transfer may also taken place where one garment containing DNA material came into contact with another.

[4] The Crown allege that DNA on the complainant's clothing is probative of facts in issue and is consistent with guilt. The complainant gave evidence that he slept clothed on the floor of the accused's premises, changed clothes after undressing and showering and handed a mixed bag of his clothing to police. The investigating police officer, Sergeant Lade, gave evidence that the complainant's clothing was handed to him bundled together in a knapsack. It is common ground therefore, that there was ample opportunity for secondary transfer of the accused's DNA to the clothing of the complainant.

[5] It is clear that there exists an alternate hypothesis for the presence of the accused's DNA on the clothing of the complainant consistent with innocence. The accused's DNA may have made its way onto the complainant's clothing by secondary transfer, rather than, as the Crown assert, during the commission of the alleged offence. Furthermore, the Crown has not lead expert evidence to counter this hypothesis, nor laid any scientific basis for preferring one hypothesis over another.

[6] Defence counsel objected to the DNA on three broad bases. First, it was submitted that the DNA results were unreliable on the basis that the forensic laboratory carrying out the tests was not accredited and that the tests were not carried out in accordance with testing procedure and were sub-standard. Secondly, it was submitted that there was no proper scientific basis which could be left to the jury to explain the presence of the accused's DNA on the complainant's clothing. Thirdly, it was further submitted that the DNA results were not probative of any fact in issue and were in any event prejudicial to the accused, such prejudice outweighing any probative value.

[7] I do not accept the first ground of objection. The Crown witness, the forensic scientist Ms Hibble, struck me as a careful, professional and credible witness. The differences between her evidence and that of the defence's expert Dr McDonald on the aspects of standards, procedures and validity of the test results are eminently matters for a jury to weigh and resolve.

[8] However, the second ground for the objection to the DNA evidence is made out. The Crown have not excluded the exculpatory explanation of secondary transfer for the presence of the accused's DNA, or DNA compatible with the accused, on the clothing of the complainant. It would be wrong for a jury to rely on the DNA evidence as proof of guilt. Further no evidence was called by the Crown to lay a scientific foundation for the conclusion that the presence of the DNA on the clothing of the complainant was explicable on an inculpatory rather than exculpatory basis. There is no reliable foundation upon which a jury could properly assess the explanation for the presence of the accused's DNA on the complainant's clothing. The DNA results 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. I agree with the recent decision of the Victorian Court of Criminal Appeal in R v Juric [2002] VSCA 77 at paragraph 18:

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[9] In any event I am of the view the prejudicial effect of the DNA evidence would outweigh any probative value, even if admissible as circumstantial evidence (see, for example R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; R v Lucas (1992) 2 VLR 109; R v Percerep (1993) 2 VLR 109; R v Van Hung Tran (1990) 50 A Crim R 233; cf R v Jarrett [1994] SASC 4596; (1994) 62 SASR 443). On that basis I agree with the reasons given by Mildren J in the unreported case of R v Stokes [2000] NTSC 12, particularly at paragraphs 12-14.

[10] In relation to the second count there remains a question of the admissibility of alleged semen stains which are said to be present on a pillow used by the complainant within the premises of the accused. The evidence was that certain tests on the pillow disclosed a semen stain. Further tests disclosed DNA on the pillow, but an identity from that semen could not be established.

[11] The admissibility of the pillow evidence was objected to on the basis that it was simply speculative. There was evidence given at the committal both by the witness T, and also by the complainant, as to each masturbating within the premises. That is, each accused the other of masturbating. Each denied the other's allegation.

[12] In concurrence with the submissions of Mr Wild QC for the Crown, the evidence of semen stains is a matter which should be left to the jury. The jury may well accept the denials of each of the witnesses and find that no masturbation took place at the premises. The semen stains are in a completely different category from the other DNA evidence. There is no innocent explanation, innocent in the sense of non-sexual activity, to explain the presence of semen stains in a place where, according to the complainant, sexual activity by the accused did take place. There was some evidence given on the voir dire of false positives for the test for semen. There was evidence that certain things give rise to false positives in the test for semen, that is, certain other substances (such as hair gel, certain vegetables, vaginal secretions) may also give a reading similar to that of semen. However, in the present case there is no evidence that gives an alternative explanation for the presence of semen on the pillow case. It seems therefore, the semen stain is admissible and should be left for the jury to decide what to make of it.

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[15] Counsel for the accused argued that the Act did not apply to the relevant document. Argument turned on the definition in s 56 of the term "counsellor". Defence counsel argued that the school counsellor was not a counsellor pursuant to the definition in the Act, and therefore the document was not a confidential communication protected by the Act.

[16] The term "confidential communication" is defined in s 56 to mean communication whether oral or written, made in confidence by a victim to a counsellor or to a victim by a counsellor in the course of a relationship of a counsellor. Victim is defined in s 56 as a victim or alleged victim of a sexual offence. In the present case the complainant is a victim as defined. The term "counsellor", found within the definition of confidential communication, is separately defined to mean a person who is treating a victim for an emotional, psychological or psychiatric condition.

[17] In support of her argument Mrs Shaw QC for the defence relied on the New South Wales Court of Criminal Appeal decision of R v Lee [2000] NSWCCA 444; (2000) 50 NSWLR 289, and in particular in a passage of the judgment of Heyden JA at pages 295-296:

"Turning then to the difference between the defendant and the complainant in relation to the second argument propounded by the defendant, it seems to me that the meaning of "counselling, giving therapy to or treating the counselled person for any emotional or psychological condition" must depend significantly on the meaning of "any emotional or psychological condition". An emotional condition is a state of consciousness turning on emotions like pleasure, pain, desire, aversion, surprise, hope, joy, sorrow, fear or hate (as distinct from cognitive and volitional states of consciousness) which reveals or reflects some defect or illness or disease or abnormality. Similarly, a psychological condition refers to a particular condition of health - a state of health which is poor or abnormal or diseased or otherwise defective from the emotional or psychological point of view. Psychology is the science of mind and of mental states and processes; a psychological condition is a state of mind in which there is some defect or illness or disease or abnormality in the victim's mental states and processes. Therapy is the curative medical or psychiatric treatment of diseases, disorders and defects and is administered by a therapist, being a person trained to give therapy by physical, psychological or psychiatric methods. To treat an emotional or psychological condition is to deal with it by examination, diagnosis, application of remedies, care and otherwise in order to relieve or cure it. While "counselling" can have quite wide meanings, and the argument propounded on behalf of the complainant appealed to them, in this context the word means advising with a view to relieving or curing an emotional or psychological condition from which the counselled person is suffering. In this sense a counsellor must possess some substantial skill acquired by training or experience. Accordingly, the expression "counselling, giving therapy to or treating the counselled person for any emotional or psychological condition" refers to the provision of expert advice and procedures by persons skilled, by training or experience, in the treatment of mental or emotional disease or trouble. The expression does not include persons who merely seek to assist others suffering from an emotional or psychological condition. A confidante or friend or relative does not, by reason of those circumstances alone, fall within s148(4)(a)."

[18] While "counselling" can have quite a wide meaning I note that word does not appear in our legislation. In this context, the word "counselling" means advising with a view to relieving or curing an emotional or psychological condition from which the counselled is suffering. In this sense the counsellor must have some substantial skill acquired by training or experience. The admitted facts before me are that the person involved in the present case was employed by Kormilda College as a school counsellor and held a Bachelor's degree in Social Work.

[19] It seems to me that the word "treating" in the definition of counsellor in s 56 ought to be given a broad meaning and certainly includes an assessment of the emotional condition of the student. The document involved in this case, which records a confidential communication between counsellor and the student is a document which discloses an assessment of the emotional condition of the complainant. In my opinion an assessment of emotional condition fits within the broad definition of treatment. Treatment of course does not have to mean from A to Z, that is, from first interview right through to cure. It can be any step along the way. It seems to me that an initial assessment of the problem is certainly included in the word 'treating'. I therefore rule that the Act applies.

[20] The second part of the argument turned on what is meant by s 56B(2) which relevantly reads:

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[24] In my opinion the argument based on Atlas is misconceived. That case dealt with Victorian legislation that only referred to the "adducing of evidence". That case drew a distinction between evidence adduced in court and pre-trial discovery of documents which had the potential to be adduced as evidence. However, the Evidence Act (NT_)_ speaks of adducing or producing evidence. To adduce evidence means to call the evidence at trial, to tender it by way of documents (as in Atlas). In contrast, to produce the evidence is something different. To produce includes production on subpoena, or some other form of pre-trial disclosure. Section 56B(2) prevents the issuing of subpoenas or discovery or any other form of pre-hearing or pre-trial disclosure or inspection of documents at all. It is simply not available. The document is inadmissible at committal proceedings. The only way a document can come before the Court and be inspected is by leave after the commencement of the hearing or at trial, which commences on the arraignment of the accused. Thus an accused person is protected. If it becomes apparent to those advising an accused that a complainant in a sexual offence had been receiving counselling, the appropriate course would be to seek leave of the court to issue subpoenas.

[25] It is apparent that the intention of the legislation is to give the Court full control of the confidential communication, both as to when it is subpoenaed and then to whom access should be granted, and ultimately whether it should find its way into evidence.

[26] Those advising the accused ought not have subpoenaed this document without leave of the Court. I note s 56C also uses the expression "adduce or produce" and provides that notice to the Court, to the parties to the proceedings and to each party to the confidential communication must be given before leave to issue a subpoena may be granted.

[27] In these circumstances, the Evidence Act applies to the document in question for the above reasons. Further, the production of the document to the Court must be by leave and at present a proper application for leave has not been made. Furthermore, having inspected the document myself pursuant to s 56D(3) it is clear that the document has no substantive probative value in respect to any fact in issue and that an application for leave to produce or adduce would in any event inevitably fail. For these reasons the application is dismissed.

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