Ramaros (a Pseudonym) v The Queen [2018] VSCA 143

1 This application for leave to appeal against interlocutory decisions involved two evidentiary rulings, 'Ruling 1' and 'Ruling 2'.

2 At the conclusion of the hearing in this Court on 25 May 2018, the Court made orders granting leave to appeal against the interlocutory decision constituted by Ruling 1, allowing the appeal and, in effect, excluding the evidence which was the subject of that ruling. The Court refused leave to appeal with respect to Ruling 2.

3 The Court indicated that it would later provide reasons for the orders. These are those reasons.

5 There is no dispute that TCN was murdered, the principal issue being whether the applicant was the killer.

6 A jury has found the applicant unfit to be tried. Accordingly, there is to be a special hearing under Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, to determine whether she committed the alleged offence, or is not guilty.[2]

7 As will become clear, the trial judge has made a series of rulings which, in one way or another, relate to the admissibility of alleged blood-staining on, or DNA evidence relating to, a pair of scissors, a meat cleaver and a boning knife, with which it is alleged that TCN was killed.

8 Pursuant to certification of the trial judge given under s 295(3)(a) of the Criminal Procedure Act 2009, the applicant sought leave to appeal against 'Ruling 1' and 'Ruling 2'.[3]

9 It is alleged that TCN was murdered somewhere between 3 and 5 November 2015.[4]

10 On 8 November 2015, police were called to TCN's flat in Richmond. They found him to be dead. His body was on a mattress in the living room. TCN had suffered multiple incised injuries to his face and body. A pair of white-handled scissors were protruding from his right eye socket.

11 Police found a meat cleaver in the kitchen drawer. In the observation of a crime scene investigator attached to the Forensic Services Department ('FSD'), Senior Constable Rebecca Robinson, there was apparent blood-staining on the meat cleaver's blade. A yellow-handled boning knife was found beside the cleaver. Senior Constable Robinson also thought there appeared to be blood-staining on the handle of the knife.

12 Laboratory testing confirmed that the apparent blood-staining on the cleaver was blood. A single source profile matching TCN's DNA profile was produced by a sample taken from the blade. Statistical analysis indicated that it was 100 billion times more likely that TCN was the source of the DNA than a person selected at random.

13 Apparent blood-staining on the handle of the boning knife was not, however, confirmed to be blood, since it did not meet FSD quality control standards for reporting. Thus, Senior Constable Robinson's observation of apparent blood-staining was not scientifically confirmed.

14 During evidence in the course of a Basha hearing,[5] Dr Paul Bedford, the pathologist who performed the post-mortem examination of TCN, offered the opinion that the injuries to the deceased's face were likely to have been caused by an implement such as the cleaver. Dr Bedford also indicated that TCN had sharp force injuries to the chest, lower abdomen and around the groin that could have been caused by any sort of general purpose kitchen knife. Dr Bedford had been shown a photograph of the boning knife by police. Although he did not specifically say that the boning knife could have caused the sharp force injuries, the clear implication of his evidence was that it could have.

15 Seeking exclusion of the evidence of the apparent blood-staining on the handle of the boning knife, the applicant's counsel sought to invoke s 137 of the Evidence Act 2008 ('the Act'). Counsel submitted that the probative value of the opinion evidence is low because there is no confirmation that what Senior Constable Robinson described as 'apparent blood-staining' is indeed blood. It was submitted that the probative value of the evidence is outweighed by the danger of unfair prejudice. There is a risk, as his Honour put it in discussion, that the jury will 'jump to the conclusion' that the staining on the handle of the boning knife was blood 'when there's no scientific confirmation that it is'.

16 The prosecution submitted that, given Senior Constable Robinson's qualifications and experience, her opinion had probative value. Any danger of unfair prejudice could be ameliorated, if not eliminated, by appropriate judicial directions.

17 The judge ruled the evidence to be admissible. He said:

I do not consider that the jury will infer any more than that the staining may be blood and that, having regard to all the evidence, the boning knife may have been used in the attack on the deceased to inflict the sharp force injuries to the deceased's chest, abdomen and around the groin.

The evidence that Robinson will give - that the staining is 'apparent' blood - draws attention itself to the fact that the presence of blood was not confirmed. That fact can be amplified by directions so that the jury do not overvalue the evidence. It is generally assumed that juries follow directions and I see no reason to depart from that assumption in relation to this evidence.

I am not satisfied by the accused that the probative value of the evidence is outweighed by the danger of unfair prejudice.

18 It is necessary to say a little more about the state of the evidence concerning the apparent blood on the boning knife. Thus, in her statement attached to the depositions, dated 18 January 2016, Senior Constable Robinson said (among other things):[6]

I have been a member of the Victoria Police Force since 2004. I have been attached to the Forensic Services Department (FSD) since 2012. Part of my daily duties include the examination and recording of scenes of crime as well as the collection and interpretation of physical evidence located during an examination.

All references to blood in this statement are based on visual and/or presumptive testing.

...

The kitchen was located in the south eastern corner of the unit. ...

A utility drawer situated along the eastern wall and under the southern end of the kitchen sink contained various knives and utensils. Amongst these items were a blue handled pair of scissors, a silver coloured meat cleaver and yellow handled boning knife. The scissors were located on top of the meat cleaver which had bloodstaining on both sides of the blade. Within these blood stains were deposits of possible biological matter. Bloodstaining was also present on the handle of the yellow boning knife. I collected a trace DNA swab from the handle of the blue scissors and collected both the meat cleaver and boning knife.

...

19 In her notes, made 8 November 2015, under the heading 'Boning knife', Senior Constable Robinson observed: '- Yellow handled knife. WATB [what appears to be] Blood staining on handle of same'. It is noted that she collected the 'yellow handled boning knife from utility draw [sic] in kitchen'.[7]

20 In this Court, counsel for the applicant submitted that Senior Constable Robinson's evidence that there appeared to be blood on the handle of the boning knife had no probative value and thus was not relevant. Alternatively, it was submitted that the evidence had little probative value. It was submitted that a jury would have to engage in speculation to conclude that what Senior Constable Robinson observed was TCN's blood and that it was deposited during the attack (other possible explanations including blood being deposited during an earlier event; that it was not human blood at all; or, if TCN's blood, it had been transferred from the meat cleaver). The evidence, it was contended, simply does not provide a foundation for reasoning from the possibility that the material might be blood to the conclusion that it is blood.

21 By virtue of s 55(1) of the Act, 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'. Section 56(1) provides that, except as otherwise provided by the Act, relevant evidence is admissible. In IMM,[8] the Court (French CJ, Kiefel, Bell and Keane JJ) said:[9]

By s 55, evidence is relevant if it 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. There can be no doubt that the reference to the effect that the evidence 'could' have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its rational' effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.

Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is 'probative'. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, 'probative'. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.

Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised. ...

22 As we have said, the applicant's counsel relied on s 137 of the Act, and contends that the probative value of the evidence of Senior Constable Robinson's observation of apparent blood staining on the handle of the boning knife is outweighed by the danger of unfair prejudice to the applicant. The Dictionary to the Act defines probative value to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

23 What is to be considered a 'fact in issue' is not defined in the Act. It might be assumed for the purposes of the present case, however, that the principal fact in issue is whether the applicant killed TCN. Lying behind that principal fact will be facts relevant to that fact in issue.[11] To be relevant and admissible, therefore, the impugned evidence needs to be capable of rationally affecting the assessment of the probability of whether the applicant killed TCN.

24 Section 137 - which provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused - does not spell out any requisite degree of probative value.[12] Weighing the 'probative value' of the evidence against the danger of unfair prejudice to the accused requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[13] But if that balancing exercise results in a finding that the probative value is outweighed by the danger of unfair prejudice, no element of discretion arises, the court being constrained to refuse to admit the evidence.[14] When particular evidence may lead a jury to adopt an illegitimate form of reasoning, or misjudge the weight to be given to the evidence, the danger of unfair prejudice contemplated by s 137 may arise.[15]

25 During the hearing in this Court, senior counsel for the respondent accepted that the evidence of Senior Constable Robinson's assertion that blood-staining 'was also present on the handle of the yellow boning knife' was a mere 'sliver' - that is, a very thin piece - of evidence. We agree that, at best, the evidence is wafer thin.

26 Given that there is no empirical support for Senior Constable Robinson's assertion that there was blood staining on the handle of the boning knife, her evidence can be no more than a reflection of her opinion. Her opinion, in turn, must be based on a combination of observed fact - she saw staining on the handle of the knife - and inference - she inferred that the staining was blood. Other than the fact that she had been a crime scene examiner since 2012, and her daily duties included 'the examination and recording of scenes of crime as well as the collection and interpretation of physical evidence located during an examination', there was no evidence to suggest that Senior Constable Robinson possessed 'specialised knowledge based on [her] training, study or experience'[16] which permitted her to express an opinion that what she observed on the handle of the boning knife was blood.

27 But assuming for the sake of argument that Senior Constable Robinson's assertion was some evidence that the staining that she saw was blood, we consider that any probative value that the evidence possessed was outweighed by the danger of unfair prejudice. In our view, there is a real risk that, notwithstanding judicial directions as to its non-misuse, a jury would use the evidence in an impermissible way. Thus, the jury may well speculate from the fact that the deceased had a number of incised wounds that the substance on the handle is blood, as opposed to some other substance; that it is human blood, as opposed to animal blood; that it is the deceased's blood, rather than another's; that the deceased's blood got onto the handle in the course of his being stabbed, rather than by some innocuous mechanism; and that, since the applicant's DNA was on the handle,[17] she had used the knife to stab the deceased.

28 Even when the evidence is considered as part of the overall circumstantial case, the evidence has very little probative value (if any), but the danger of impermissible speculation on the part of a jury is high. Indeed, the fact that there is other more probative evidence in the prosecution's circumstantial case may be thought to magnify the risk that a jury would too readily conclude that the substance observed on the knife was blood-staining, in circumstances where a sound evidentiary foundation for such a conclusion is lacking.

29 Approaching the judge's decision in Ruling 1, as we must, according to House principles,[18] we consider that the proper application of principle ought to have led to the impugned evidence being excluded. For this reason, we made orders to effect the exclusion of the evidence.

Ruling 2: DNA evidence relating to scissors, meat cleaver and boning knife

30 As we have mentioned, a pair of white-handled scissors were found protruding from the deceased's right eye socket. The meat cleaver and boning knife were found in the kitchen utilities drawer near the sink. These three implements, the prosecution alleges, were used to murder TCN sometime during the period between 3 and 5 November 2015. Significantly, DNA matching the applicant's was found on the handles of each implement.

31 Dr Bedford offered the opinion that the injuries to TCN's face, especially across the front, were likely to have been caused by an implement such as the cleaver. At FSD, blood was detected on the blade of the cleaver. A sample was taken from the blade (Sample 9-1) which yielded a single source DNA profile, it being 100 billion times more likely that TCN was the source of the sample than a person selected at random. Another sample was taken from the handle (Sample 9-2) which yielded a DNA profile with at least two contributors. It was 100 billion times more likely both that the applicant and TCN were contributors than a person selected at random. The applicant contributed 48 per cent of the DNA. Dr Mariya Goray, a forensic scientist and Case Manager within the Biological Sciences Group of FSD specialising in DNA transfer, offered the opinion that the applicant's DNA was likely to have been transferred directly to the handle of the cleaver.

32 A knife such as the boning knife could have caused the sharp force injuries to TCN's chest, lower abdomen and groin. The boning knife, as we have said, was found beside the cleaver in the kitchen drawer. At the risk of repetition, there was apparent blood staining on the handle. A sample from this stain (Sample 11-1) yielded a DNA profile which did not meet FSD quality control standards for reporting. Another sample from the blade (Sample 11-2) yielded a mixed DNA profile with at least three contributors. It was 100 billion times more likely that TCN was a contributor than a person selected at random. Using the Australian caucasian database, it was 600,000 times more likely that the applicant was a contributor than a person selected at random; and using the Vietnamese database, it was 8,900 times more likely that the applicant was a contributor than a person selected at random. A further sample from the handle (Sample 11-3) yielded a mixed DNA profile with at least three contributors. Based on the Australian caucasian database, it was 5.9 billion times more likely that the applicant was a contributor than a person selected at random; and using the Vietnamese database, it was 68 million times more likely that the applicant was a contributor than a person selected at random. Using the Australian caucasian database and the Vietnamese database, it respectively was 38 million times more likely, or 290,000 times more likely, that TCN was a contributor than a person selected at random. The applicant contributed 60 per cent of the DNA. In Dr Goray's opinion, the applicant transferred her DNA directly to the handle of the boning knife.

33 Samples were taken from the scissors lodged in TCN's right eye socket. One sample was taken from the handle at the post-mortem examination (Sample 16-1) and three samples were taken from the handle at FSD (Samples 27-1, 27-2, 27-3). The sample taken at the post-mortem provided a mixed DNA profile with at least three contributors. It is 100 billion times more likely that the applicant was a contributor than a person selected at random. She had contributed 40 per cent of the DNA. Further, it was 100 billion times more likely that TCN was a contributor than a person selected at random. In Dr Goray's opinion, the applicant's DNA was transferred directly onto the handle of the scissors. Sample 27-1 was a mixed DNA profile with at least three contributors. Using the Australian caucasian database, 'it was 1.4 [sic] times more likely' that the applicant was a contributor than a person selected at random; and using the Vietnamese database, it was more likely that the applicant was not a contributor than a person selected at random. Both Sample 27-2 and 27-3 yielded mixed DNA profiles with at least three contributors, from which the applicant was excluded. With respect to the different results obtained from the post-mortem sample and the laboratory samples, Dr Goray's opinion was that the post-mortem sample was most representative of what DNA was present on the white-handled scissors. Dr Goray suggested that the taking of the post-mortem sample, and fingerprint testing at the laboratory, may have removed almost all of the applicant's DNA from the scissors' handle.

34 There is a further aspect of the evidence to which we should refer. In the kitchen utilities drawer, police also found a pair of blue scissors resting on top of the cleaver. It is not alleged that they were used in the attack on the deceased. A sample from the handle of the blue scissors (Sample 34-1) yielded a mixed, partial DNA profile with at least three contributors. The applicant contributed 59 per cent of the DNA. It was 4.9 billion times more likely that the applicant was a contributor than a person selected at random. In Dr Goray's opinion, this sample was most consistent with the direct transfer of the applicant's DNA.

35 Before the trial judge, the applicant's counsel submitted that, given the evidence of a longstanding relationship between TCN and the applicant, which included many visits by the applicant to the deceased's flat, a jury could not exclude the possibility that the applicant's DNA had been innocently deposited onto the cleaver, boning knife and white-handled scissors. It was submitted that the presence of the applicant's DNA on the blue-handled scissors underscored the possibility of innocent transference. Counsel submitted that there were parallels with Wise[19] and Paulino,[20] in which DNA evidence was found to be inadmissible pursuant to ss 56 or 137 of the Act. It was argued that Dr Goray's evidence, suggesting the unlikelihood of innocent indirect transference of the applicant's DNA to the cleaver, boning knife and white-handled scissors, is unreliable.

36 Counsel for the prosecution submitted that, when applying ss 56 and 137 of the Act, the prosecution's case had to be taken at its highest. Dr Goray's evidence, it was submitted, militated against the notion of indirect transference of the applicant's DNA to the three implements. In Dr Goray's opinion, the applicant was likely to have transferred her DNA directly to the handles of the meat cleaver, the boning knife and the white-handled scissors, based on the type, quality and quantity of the DNA profiles yielded by the relevant samples. Relying on IMM, it was submitted that the reliability of her testimony had to be assumed in assessing relevance and probative value. The state of the DNA evidence in this case distinguished it from Wise and Paulino, as did the fact that the applicant's DNA was found on the three implements alleged to have been used to accomplish the murder. It is mere speculation, so it was submitted, that the applicant's DNA was innocently transferred to the alleged murder weapons.

37 Refusing to exclude the evidence, the judge said:

Taking the prosecution's case at its highest, a jury could find, based on Dr Goray's evidence, that it is likely that the accused's DNA was deposited directly on each of the handles of the alleged murder weapons. That is a point of distinction with the DNA evidence in Wise and Paulino, cases on which the accused relies for her submission that the DNA evidence should be excluded under ss 56, 135 and/or 137 of the Evidence Act 2008. In those cases, the DNA expert evidence lent considerable support to the possibility of indirect innocent transference.

Whilst recognising the danger of the 'CSI effect', which was discussed in Wise and Paulino, I am of the view that directions can substantially ameliorate, if not eliminate, that danger. 'Jurors are not stupid. The law should not treat them as though they were.'[21]

I am not satisfied that the significant probative value of the evidence is outweighed by the danger of unfair prejudice

38 In this Court, counsel for the applicant submitted that the trace DNA evidence relating to the meat cleaver, the yellow-handled boning knife and the white-handled scissors, in all of the circumstances of the case, is not capable of rationally affecting a judgment as to whether the applicant murdered TCN.[22] This is because of:

• the applicant's long-term connection to TCN and his flat;

• the nature of the crime scene and the crime scene examination;

• control swabs not having been taken from the drawer or other areas in the premises to estimate a level of background DNA present;

• the presence of the applicant and the deceased's DNA on the blue-handled scissors in similar quantities to deposits on the white-handled scissors, meat cleaver and the boning knife;

• the presence of unknown contributors to all three exhibits; and

• the ease of transfer of trace DNA, the inability to age the same, and the inability to determine the order of deposit of DNA in a mixture.

39 There is no doubt that the white-handled scissors were used as part of the crime perpetrated against TCN (whether they were rammed into his eye socket before or after death). And there is little doubt, given the nature of the injuries, that the meat cleaver was used during the crime. Further, there is no doubt that a knife similar to the yellow-handled boning knife could have caused the incised wounds to the deceased's body. In the present case, the prosecution seeks to rely on the applicant's DNA on these items to link her to them, and ultimately to found the inference that she used them to accomplish the killing.

40 The evidence of Dr Goray is that the DNA on the three implements was likely to have been directly deposited, rather than deposited by indirect transference. Although the applicant's counsel attacked Dr Goray's evidence as being speculative, the prosecution contended that Dr Goray's specialised knowledge in the area of DNA transfer is based on her study and experience and her opinion is based on that knowledge. The respondent further argued that the presence of the applicant's DNA across the three items elevates the probative value of the evidence, and submitted that it would be open to a jury to reject the hypothesis that the DNA was innocently and indirectly deposited.

41 In our view, the evidence of DNA on the three implements plainly is relevant. Each of the white-handled scissors, the meat cleaver and the boning knife could have been used in the killing, and the applicant's DNA had been deposited on each of them. Dr Goray, who is an expert in the field of DNA transfer, has expressed the opinion that the applicant's DNA was more likely to have been as a result of direct, rather than indirect, transfer. Hence, it would be properly open to a reasonable jury to conclude that the applicant had used those implements to kill TCN.

42 Notwithstanding the palpable relevance and probative value of the evidence, however, the applicant's counsel contended that its probative value was outweighed by the danger of unfair prejudice. Reduced to its essence, the submission of the applicant's counsel ascribed three reasons: first, the risk of innocent transference robbed the evidence of its probative value; secondly, when closely analysed, Dr Goray's evidence has significant limitations (including that she cannot exclude 'secondary transfer' as an explanation for the applicant's DNA being on the scissors, meat cleaver and boning knife); and, thirdly, the influence of what was compendiously described as the 'CSI effect'.

43 As we have observed, s 137 requires that, when weighing probative value against the danger of unfair prejudice, the evidence in question must 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.[23] No element of discretion accompanies the judicial exercise for which s 137 provides,[24] the section being 'expressed in terms of an evaluative judgment mandating exclusion'.[25] 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.

44 The cases provide examples 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.[26] In the present case, however, the evidence of Dr Goray, if accepted by the jury, is capable of excluding as a reasonable hypothesis the presence of the applicant's DNA on the relevant items through indirect transfer. That is particularly so when the DNA evidence is considered in combination with the other evidence in the case.

45 Moreover, this is a case in which we consider that the suggested limitations of Dr Goray's evidence are capable of being adequately exposed by the defence, and properly evaluated by the jury. We consider that the fact that Dr Goray's might be, as counsel put it, a 'burgeoning field', emphasises that there will be abundant scope for testing the scientific foundation (or lack thereof) of her opinions, and any assumptions underpinning them.

46 In our view, the present is not a case in which there is any real risk that the jury will be overwhelmed by the science. And although we do not ignore the danger of the 'CSI effect' discussed in Wise and Paulino, we agree with the trial judge that directions will be capable of substantially ameliorating, if not eliminating, that danger.

47 For these reasons, the criticisms made of Ruling 2 are without substance.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the applicant and the deceased.

[2] See s 17, and the definition of 'offence' in s 3(1).

[3] On 26 March 2018, the trial judge certified that two of his rulings concern the admissibility of evidence which, if it 'were to be excluded would substantially weaken the prosecution case'.

[4] The indictment alleges that the applicant 'at Richmond in Victoria between the 3rd day of November 2015 and the 8th day of November 2015 murdered' TCN. The prosecution amended its position in pre-trial discussions, but we are unaware whether the indictment was amended.

[7] Her notes also record that she re-examined 'knives in utility draw [sic]'. She noted also, 'contained boning knive [sic] + other knives in draw [sic] are all sharp and well maintained'.

[8] IMM v The Queen (2016) 257 CLR 300 ('IMM').

[10] Ibid, 312-3 [40]-[41] (footnotes omitted).

[11] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[14] See Norris v The Queen [2018] VSCA 137, [44] (Priest, Niall and Ashley JJA) ('Norris'); R v Cook [2004] NSWCCA 52, [27] (Simpson J).

[15] Norris, [45]; R v Yates [2002] NSWCCA 520, [252] (Wood CJ at CL).

[17] See [32] below.

[18] House v The King (1936) 55 CLR 499 ('House'). See KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11 ('KJM'); CGL v Director of Public Prosecutions (No 2) [2010] VSCA 24; (2010) 24 VR 482; Bray (a Pseudonym) v The Queen [2014] VSCA 276; (2014) 46 VR 623; Pope (a Pseudonym) v The Queen [2017] VSCA 324.

[19] DPP v Wise (a pseudonym) [2016] VSCA 173 (Warren CJ, Weinberg and Priest JJA) ('Wise').

[20] DPP v Paulino [2017] VSCA 38 (Weinberg, Priest and Ferguson JJA) ('Paulino').

[21] Mark Weinberg, 'The Criminal Law - A "Mildly Vituperative" Critique' [2011] MelbULawRw 39; (2011) 35(3) Melbourne University Law Review 1177, 1193.

[22] Paulino, [16], [66]-[68], [78].

[26] See Paulino, [103]; Wise, [58]-[67].