Aytugrul v The Queen [2012] HCA 15

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, HEYDON, CRENNAN AND BELL JJ

YUSUF AYTUGRUL APPELLANT

AND

THE QUEEN RESPONDENT

Aytugrul v The Queen [2012] HCA 15

18 April 2012

S315/2011

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

S J Odgers SC with K J Edwards for the appellant (instructed by Legal Aid Commission of NSW)

D U Arnott SC with V J Lydiard for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Aytugrul v The Queen

Criminal law – Evidence – Admissibility of evidence about DNA analysis – Appellant convicted of murder – Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased's thumbnail – Expert's statistical evidence given in form of frequency ratio and exclusion percentage – Whether evidence of exclusion percentage relevant given evidence of frequency ratio – Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant – Whether evidence of exclusion percentage misleading or confusing.

Evidence – Judicial notice – Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice – Facts underpinning adoption of general rule not proved – Whether judicial notice can be taken of psychological research said to support adoption of general rule.

Words and phrases – "evidence", "exclusion percentage", "frequency ratio", "judicial notice", "misleading or confusing", "unfair prejudice".

Evidence Act 1995 (NSW), ss 135, 137, 144.

1. FRENCH CJ, HAYNE, CRENNAN AND BELL JJ. The appellant was tried in the Supreme Court of New South Wales for murder. The deceased and the appellant had been in a relationship but that relationship had ended more than two years before the deceased was stabbed to death. The prosecution case at trial was circumstantial. The prosecution alleged that the motive for the killing came from the failure of the appellant's relationship with the deceased and her having formed a relationship with another man. In order to establish motive, the prosecution relied on evidence that about five months before the deceased was killed the appellant had published a poem in the Turkish Weekly News declaring that he could not give up his love for the deceased. (Both the appellant and the deceased were of Turkish origins.) The prosecution further relied on evidence which it was said showed that the appellant had stalked and harassed the deceased for some months before her death. 2. This appeal concerns the admissibility of some evidence led at trial about a DNA analysis. A hair found on the deceased's thumbnail had been subjected to mitochondrial DNA testing. The results of that testing showed two things: first, that the appellant could have been the donor of the hair and, second, how common the DNA profile found in the hair was in the community. This second aspect of the results was expressed in evidence both as a frequency ratio[1] and as an exclusion percentage. The expert who had conducted the test gave evidence to the effect that one in 1,600 people in the general population (which is to say the whole world) would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that 99.9 per cent of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage). 3. It is alleged that the evidence the witness gave in the form of an exclusion percentage was not admissible. 4. The appellant appealed to the Court of Criminal Appeal against his conviction on grounds that included the ground that "a miscarriage of justice occurred because of the prejudicial way in which DNA evidence was expressed to the jury". The Court of Criminal Appeal, by majority (Simpson and Fullerton JJ, McClellan CJ at CL dissenting), dismissed[2] the appellant's appeal. 5. By special leave, the appellant now appeals to this Court alleging that the Court of Criminal Appeal should have held that the trial judge had erred "in admitting statistical evidence expressed in exclusion percentage terms". The appellant submitted, in effect, that s 137[3] of the Evidence Act 1995 (NSW) required exclusion of evidence which expressed the results of the DNA testing as an exclusion percentage and further submitted that, if that were not so, the only proper exercise of the general discretion to exclude evidence given by s 135[4] of the Evidence Act would have seen the evidence excluded. 6. The appellant did not demonstrate that the evidence given at the trial which expressed results of the DNA testing as an exclusion percentage was evidence the probative value of which was outweighed by the danger of unfair prejudice to the appellant. Neither s 137 nor s 135 of the Evidence Act was engaged. The appeal should be dismissed.