Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Norris [2014] NSWCCA 76 Hearing dates: 17 April 2014 Decision date: 09 May 2014 Before: Beazley P at [1]; R A Hulme J at [2]; Bellew J at [35] Decision: 1. Appeal allowed. 2. The ruling of his Honour Judge Lerve on 30 January 2014 excluding the evidence of Ms Sandra Trabuio in relation to the detection of spermatozoa in smears made during the examination of the complainant on 20 April 2011 and her opinion as to the possible period between ejaculation and the creation of the smears is vacated. Catchwords: CRIMINAL LAW - appeal against exclusion of prosecution evidence during trial - Criminal Appeal Act 1912, s 5F(3A) - expert evidence relating to likelihood of obtaining intact spermatozoa more than 72 hours after ejaculation erroneously excluded - trial judge failed to take into account evidence at its highest and upon the assumption that the jury would act upon it - exclusion substantially weakened prosecution case - ruling vacated Legislation Cited: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v ELD [2004] NSWCCA 219 Category: Principal judgment Parties: Regina Lee Robert Norris Representation: Counsel: Mr P Ingram SC (Crown) Mr C Smith with Ms C Feiner (Respondent) Solicitors: Solicitor for Public Prosecutions Legal Aid Commission File Number(s): 2011/304383 Decision under appeal Jurisdiction: 9101 Before: Lerve DCJ File Number(s): 2011/304383 Judgment 1BEAZLEY P: I agree with the reasons of R A Hulme J and with the orders his Honour proposes. I also expressly endorse his Honour's remarks at [3] in relation to the concession made by counsel for the respondent. 2R A HULME J: The Director of Public Prosecutions (NSW) appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a decision of a District Court judge to exclude certain evidence sought to be led in the trial of the respondent, Lee Robert Norris. 3Counsel for the respondent, Mr C Smith, with his usual and commendable candour, has conceded that the appeal should be upheld. I am of the view that the concession is appropriate but it is necessary to explain why that is so. The trial 4On 23 January 2014 the respondent was arraigned upon an indictment alleging that he committed an offence of sexual intercourse without consent upon a woman with knowledge that she was not consenting. He pleaded that he was not guilty and a jury was empanelled. 5On the fifth day of the trial, 30 January 2014, counsel who appeared in this Court with Mr Smith, objected to the admissibility of certain expert evidence which I will detail shortly. A voir dire was conducted; submissions were made; and the learned trial judge, his Honour Judge Lerve, upheld the objection and excluded the evidence. 6The following morning the Crown Prosecutor successfully sought a discharge of the jury on the basis that the Director of Public Prosecutions was proposing to appeal against the judge's ruling. The issues in the trial 7The Crown case was that the respondent had sexual intercourse without the complainant's consent in the early hours of the morning of 20 April 2011 whilst she was asleep. She woke to find her clothing in disarray and felt wetness and discomfort in the area of her vagina and groin. She noticed fluid which she believed was semen. She complained to various people that she had been sexually assaulted. 8The complainant was medically examined at about 6.45pm the same day. The examining doctor, Dr Hazelton, took vulval and vaginal swabs which he then applied to slides to produce smears. These were sent off to the NSW Forensic & Analytical Science Service (FASS) for analysis. The high vaginal and low vaginal swabs were combined and analysed. DNA was recovered which had the same profile as the respondent. It was a profile that was expected to occur in less than 1 in 10 billion individuals in the general population. There was no finding of DNA from any other contributor. 9The respondent was interviewed by police. He initially denied having sexual intercourse with the complainant at the relevant time. However, after he was informed of the results of the DNA analysis he said that he had engaged in sexual intercourse and had ejaculated "inside her" whilst not wearing any "protection", but he claimed that this was on 15 April 2011. The excluded evidence 10The Crown proposed to call evidence from Ms Sandra Trabuio, a forensic biologist at the Forensic Biology/DNA Laboratory of the FASS. Her proposed evidence was contained in two reports which were dated 13 and 16 January 2014. 11In the first report Ms Trabuio recorded that semen was detected on the high vaginal, low vaginal and vulval smears. DNA was recovered on the combined high and low vaginal swabs with a profile that was the same as the respondent and such a profile was expected to occur in fewer than 1 in 10 billion individuals in the general population. No objection was taken to Ms Trabuio giving that evidence. 12The second report set out her responses to two questions that had been posed. The first question concerned whether the smears placed on slides from the swabs taken by Dr Hazelton contained intact sperm. She provided a detailed response but, in short, it was in the affirmative. The second question was: "Based on your training, knowledge and experience, is it likely that intact sperm located on a smear would be from an ejaculation more than 72 hours prior to the sample being taken?" 13Ms Trabuio's response was: "Given my training, knowledge and experience it is my opinion that it is highly unlikely to obtain intact spermatozoa on vaginal or vulval smears greater than 72 hours after ejaculation occurred. My opinion is supported by laboratory data as well as the article referenced below. [And she cited reference to an article published in the Canadian Society of Forensic Science Journal in 2011.]" 14Ms Trabuio gave evidence on the voir dire. In the course of that evidence she opined that where intact sperm are found then the time since ejaculation is most likely to have been within 24 hours, although it could have been up to within 48 hours which was the upper limit of the FASS laboratory results which she could recall in her 20 years of experience. The article referred to in her second report contained a review of literature on the subject within which there was reference to two cases in which intact sperm was found beyond the 48 hour period. In one of those cases, the period was 72 hours. 15In cross-examination, Ms Trabuio said that the sperm found on the slides was not analysed and so she would be unable to say whether or not it matched any particular person. She had earlier explained in her evidence in chief that the laboratory do not routinely analyse the slides for DNA because the smears on them are derived from the accompanying swabs which are analysed. She said, "We look at the smear for the amount of sperm and the corresponding swab is used to examine for DNA". The basis of the objection 16It was submitted by counsel for the respondent that the evidence concerning the time since ejaculation of the sperm located on the smear slides was inadmissible because: (a)it was not specialised knowledge based on her training, study or experience: s 79 of the Evidence Act 1995 (NSW); (b)it was irrelevant because Ms Trabuio could not say anything about who the source of the sperm was; and (c)the probative value of the evidence was outweighed by the danger of unfair prejudice to the respondent: s 137 of the Evidence Act. 17The Crown Prosecutor submitted that the evidence was admissible because: (a) The opinion was the product of Ms Trabuio's training, study and experience as it was based on her involvement in the analysis of sexual assault investigation kits for some 20 years and her opinion was supported by the results of the literature review referred to in the Canadian article; and (b) The only rational inference to be drawn from a consideration of all the evidence given by Dr Hazelton and Ms Trabuio was that it was the respondent's sperm that was on the smear slides. The judgment 18The trial judge delivered an ex tempore judgment (and that is understandable given it was the afternoon of the fifth day of the trial and he had a jury waiting in the jury room). 19His Honour accepted that the evidence was opinion evidence that was admissible under s 79 of the Evidence Act: "I am satisfied that she does have the experience to give an opinion about the age of sperm". 20Reference was then made to the evidence of the sperm on the smear slides not having been analysed and Ms Trabuio not being able to say from whom it emanated. His Honour referred to the Crown's reliance upon circumstantial evidence to show that what was on the slides was the same as what was in the swabs. He then said: "Despite the experience of the analyst I am of the opinion the objection Ms Feiner takes on [the] issue of relevance is made good." 21His Honour ruled that the evidence contained in Ms Trabuio's second report of 16 January 2014 was excluded. The appeal 22As earlier observed, the appeal is brought pursuant to s 5F(3A) of the Criminal Appeal Act. That provision gives the Crown a right to appeal against any decision or ruling on the admissibility of evidence but only if it eliminates or substantially weakens the prosecution's case. 23The Crown submitted that the judge erred by failing to take into account the evidence in the Crown case touching upon the smear slides at its highest and upon the assumption that the jury would act upon it. If it could be established that the sperm on the smear slides was that of the respondent, the evidence of Ms Trabuio of the time since ejaculation of that sperm was relevant because it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings: s 55(1) of the Evidence Act. The "fact in issue" was whether the respondent had intercourse with the complainant in the early hours of the morning of 20 April 2011 as opposed to, as he claimed, on 15 April 2011. 24It was submitted that the only rational hypothesis was that if the vaginal swabs bore DNA that emanated from the respondent, then the semen found in the smears, which were created from the swabs, also emanated from the respondent. The Crown case on this aspect was circumstantial but there was no alternative hypothesis available. The conclusion for which the Crown contended was inevitable. 25As I have earlier mentioned, counsel for the respondent in this Court conceded that the trial judge had erred. 26It was accepted that one of the essential elements of the offence the Crown was required to prove, that the respondent had sexual intercourse with the complainant on 20 April 2011, had been put in issue by the accused saying in a police interview that they had sexual intercourse but claiming that it occurred five days earlier. 27It was also accepted that the evidence excluded by the trial judge rationally affected the assessment of the possibility that the DNA could have come from an act of intercourse between the respondent and the complainant on 15 April. It was conceded that the jury could use the evidence to exclude that possibility. If the jury did so then the Crown's assertion that the respondent's DNA was found because he had sexual intercourse with the complainant on 20 April would be left uncontradicted. 28Mr Smith then turned in his written submissions to the question as to whether the exclusion of the evidence "substantially weakened" the Crown case. This required an examination of the whole of the evidence in the prosecution case and a consideration of the relative importance of the evidence in question in that context. 29Mr Smith, like senior counsel for the Director, provided a summary of the evidence in the Crown case. He conceded that in the context of that evidence, it was "difficult to argue against the submission that the exclusion of the evidence substantially weakened the prosecution case". Determination 30There is no need to digress into any exposition of the principles relating to the manner in which this Court determines an appeal brought pursuant to s 5F(3A). This is a clear case of error having been established in the manner set out in the Crown submissions and conceded on behalf of the respondent. 31It is also clear, in my view, that the exclusion of the evidence substantially weakened the prosecution case. The evidence in question has the potential to remove any reasonable doubt about whether the respondent's semen was deposited on the occasion when the Crown contends he had intercourse with the complainant when she was incapable of being aware, and therefore incapable of consenting. The alternative hypothesis arising from the claim made by the respondent in his police interview can be negated if a jury accepts the inference arising from the combined effect of the evidence of Dr Hazelton and Ms Trabuio. It is well open to the jury to accept that evidence and the inference arising from it. 32The decision of the trial judge excluding the evidence should be vacated. 33The notice of appeal included in the list of orders sought that this Court should make a ruling that the evidence is admissible. However, in light of the fact that the jury had been discharged and a further trial remains to commence, the Crown abandoned that aspect. Order 34I propose the following order: 1. Appeal allowed. 2. The ruling of his Honour Judge Lerve on 30 January 2014 excluding the evidence of Ms Sandra Trabuio in relation to the detection of spermatozoa in smears made during the examination of the complainant on 20 April 2011 and her opinion as to the possible period between ejaculation and the creation of the smears is vacated. 35BELLEW J: I agree with R A Hulme J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2014