District Court New South Wales Medium Neutral Citation: R v KE [2019] NSWDC 349 Hearing dates: 15 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: Evidence excluded pursuant to s 137 Catchwords: CRIME - DNA evidence – Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence ruled inadmissible. Legislation Cited: Evidence Act 1995 Cases Cited: Adams v The Queen [2018] NSWCCA 303 DPP (VIC) v Wise [2016] VSCA 173 DPP v Paulino (No 3) [2017] VSC 345 R v Beowulf [2019] ACTSC 64 R v GZ [2015] ACTSC 229 Category: Procedural and other rulings Parties: Regina (Crown) KE (Accused) Representation: Counsel: Mr N Marney (Solicitor Advocate, Crown) Ms Lewer (Accused) File Number(s): 2018/00024014 Publication restriction: Identification of Complainant Judgment INTRODUCTION 1. The accused seeks the exclusion of DNA evidence that the Crown intends to rely upon. The accused has been arraigned and pleaded not guilty to a seven count indictment. Counts 6 and 7 assume importance on this application. It is alleged that on 21 January 2018 on two separate occasions the accused performed cunnilingus on the complainant. The Crown seeks to adduce DNA evidence and the defence objects to its reception. THE FACTS 1. At about 11am on Sunday 21 January 2018 the complainant was 14 years old and the accused was 30 years old. The complainant returned to Claremont Meadows, after spending time at her father's residence. At this time the accused was using his computer in the lounge room listening to music, and the complainant's mother was not at home. The accused and the complainant watched the movie Jawbreaker, in the lounge room of the premises, before cooking pancakes. The complainant ate these pancakes and became aware that the accused had been awake all night drinking alcohol and playing computer games. 2. At about 2pm the accused told the complainant to put a movie on for him within the master bedroom as he wanted to go to sleep. The complainant went into the master bedroom and put on a DVD of the television show, The Sopranos. The complainant lay on the bed and placed the doona over her legs as she watched an episode of The Sopranos, whilst the accused was eating. The accused entered the bedroom some time later, after eating the pancakes they had cooked earlier. 3. At this time the complainant was wearing a Tweetie Bird nightie, grey shorts, and pink underwear; whilst the accused was wearing a white thermal top and either green shorts or black tracksuit pants. The accused lay on the bed next to the complainant and said, "Take off your pants". The accused then motioned with his hand for the complainant to come to him and said, "Sit on my face", as he motioned for her to face towards the television. 4. As the complainant did this the accused told her to, "Turn around", and held her by the buttocks and thighs whilst he inserted his tongue into her vagina and performed cunnilingus upon the complainant. After 15 to 20 minutes the complainant said, "My legs are hurting". The accused stopped and let go of the complainant who lay down next to him and pulled her pants back up. The accused then got up and left the room. 5. The complainant remained in the master bedroom as she was unsure what to do. Approximately five minutes later the accused returned to the master bedroom and said to the complainant, "Get back up, I want to eat again". The complainant removed her shorts and underwear and straddled the accused's face. The accused inserted his tongue into the complainant's vagina and performed cunnilingus upon her, causing her pain. 6. A few minutes later the complainant said, "It hurts". The complainant lay down next to the accused and began to cry, the accused said, "You're crying because you have a guilty conscience, you didn't say no or do anything to stop it". The complainant began to cry more, and the accused said, "I can't deal with this", and went to sleep. 7. Once the accused was asleep the complainant went out into the lounge room and watched the rest of the movie, Jawbreaker. Whilst there she texted her friend JR about what happened. JR texted back and said, "If you want me to tell someone I will definitely tell someone because I want to if I know you don't want me to tell someone then I won't". 8. Once the complainant was sure the accused was asleep she changed her clothes and packed a bag of belongings and left the house, walking to her grandmother's house nearby. Once there the complainant disclosed the assault upon her, and the police were called. 9. On Sunday 21 January 2018 the complainant underwent a sexual assault investigation at Nepean Hospital. 10. On Monday 22 January 2018 the complainant attended the Office of the Child Abuse Unit (Penrith) and provided an audio visual statement. During this statement the complainant presented as age appropriate and demonstrated an understanding of truth, lies, and consequences. During this audio visual statement the complainant was able to particularise six incidents. She stated that the sexual incidents similar in nature to those described in the interview happened on a regular basis, starting when she was 11 years old and ending with the last incident on Sunday 21 January 2018. THE EVIDENCE 1. A swab was taken from her labia and her vulva. 2. The vulva is the external part of the female genitalia, it protects a woman's sexual organs, urinary opening, vestibule, and vagina. The outer and inner lips of the vulva are the labia majora and the labia minora. DNA was recovered from the swab taken from the complainant's labia. DNA testing was carried out using a Y‑STRS. The male DNA recovered has the same Y‑STR profile as KE and is also expected to match all males on his paternal line. Additionally, this profile is expected to occur in approximately one in 750 unrelated males in the general population. 3. DNA was recovered from the vulval swab. DNA testing was carried out using the Y‑filer system. The male DNA recovered has the same Y‑filer profile as KE and it is also expected to match all males on his paternal line. Additionally this profile is expected to occur in approximately one in 750 unrelated males in the general prospecting operation. 4. On this application the defence have tendered a report of Mrs Helen Roebuck, a principal scientist from Independent Forensic Services, dated 13 June 2019. It was her opinion that because the DNA profile cannot be attributed to a specific biological material it is a trace DNA. 5. It is her opinion trace DNA can be transferred directly and indirectly. It is not possible to determine whether the DNA was deposited through direct contact with the vulval area, or whether DNA was deposited on to another surface and then transferred to the vulva…when individuals are in social contact or reside in the same property there is an increased opportunity of secondary and subsequent transfer of DNA. 6. The accused has resided at the same property with the complainant and her mother for over four years. He had in fact been in a de facto relationship with the complainant's mother for nine years. He is referred to as the step‑father by the complainant. 7. I have heard evidence on the application. 8. The Crown called Mr Clayton Walton who is employed at the DNA laboratory of New South Wales Health Pathology Forensic and Analytical Science Services. 9. I was informed that a saliva test was not conducted. The DNA that was recovered from the vulva was ten times more than that recovered from the labia. In relation to the question about whether the DNA was primary or secondary, it was his opinion that one needed to look at the circumstances which included length of contact, type of source, when was the last time the person washed hands, the location of DNA and whether the person was a good shedder or bad shedder. 10. When cross‑examined he agreed to a number of scenarios where DNA transfer will occur, some of these scenarios were as follows: 1. Toilet paper having been touched by the accused then used by the complainant could result in the transfer of DNA. 2. A towel that had been used by the accused then used by the complainant could result in secondary transfer of DNA. 3. Hand to hand contact between the accused and the complainant and then the complainant touching her genital area could result in secondary transfer of DNA. 4. The washing of the accused's underpants with the complainant's underpants could cause secondary transfer of DNA, even if the complainant's underpants were left unworn for some period of time. 1. I heard evidence on the application from Mrs Roebuck, she agreed with the evidence of Mr Walton although she would apply more caution to it and felt that it was necessary to verify the data. She told me that the amount of DNA extracted from the vulval swab was a low amount; it was a couple of hundred cells detected, but not a large amount. She agreed that people can shed up to 30,000 cells per day. 2. The common position of both experts was that they were unable to say in looking at the specific facts of this case whether direct DNA or transfer DNA was more likely than the other. There was no competing hypothesis from the experts. Neither was prepared to say that one scenario was more likely than the other (that is direct as opposed to transfer). 3. The Crown conceded during the course of submissions that we do not have competing expert opinion in this case. THE DEFENCE SUBMISSIONS: 1. The accused objects to the admission of the evidence on two bases, (a) relevance (ss 55 and 56 of the Evidence Act 1995) or in the alternative; (b) The danger of unfair prejudice outweighs the probative value of the evidence (s 137). 2. I have been referred to DPP (VIC) v Wise [2016] VSCA 173; DPP v Paulino (No 3) [2017] VSC 345; R v Beowulf [2019] ACTSC 64; Adams v The Queen [2018] NSWCCA 303 where Campbell J at [134] said: "I am also of the view that referring to expert evidence as "neutral" is at best unfortunate in the context of a criminal trial. I accept that defence counsel below, in her closing address, described the DNA evidence as "neutral". I repeat, a criminal trial is an accusatorial and adversarial process. To the extent to which it is accusatorial it is for the Crown to prove the essential elements of the offence to establish the guilt of the accused beyond reasonable doubt. The true significance in such a context of evidence being "neutral" is that the facts established by that evidence do not tend to prove that the accused is guilty. Use of the expression "neutral" suggests that the evidence may merely be put to one side. Rather, the jury should be instructed, given that the evidence has been led as relevant, that evidence having that quality of "neutrality" is not evidence which tends to prove that the accused is guilty as charged. And to that extent, it may be weighed in the accused's favour." THE CROWN'S SUBMISSIONS 1. The Crown submits that when looking at the question of relevance I must look at the evidence at its highest. The Crown submits that the evidence is independent evidence which supports the version given by the complainant. It submits that the evidence is relevant and no prejudice is occasioned to the accused and accordingly I should admit the evidence. CONSIDERATION 1. For evidence to be relevant it must be 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 in the proceeding. 2. A fact in issue in this trial is whether the accused performed cunilingus on the complainant. I do take the evidence at its highest as suggested by the Crown. What the evidence demonstrates is that on two swabs taken from the complainants vulva area after the alleged offence that the accused's DNA was present. Neither expert is able to say whether the accused DNA was direct or by way of secondary transfer. 3. If one does not have the competing expert opinion about the DNA then how can this be relevant? If it is relevant it can only be marginally so. SECTION 137 1. Section 137 of the Evidence Act provides: "In a criminal proceeding 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 defendant." 1. Section 137 is expressed in terms of an evaluative judgment mandating exclusion. Thus, in a criminal proceeding, a trial judge must refuse to admit the evidence adduced by the prosecution if it's probative value is outweighed by the danger of unfair prejudice to the accused. 2. I pose the rhetorical question "How does a jury evaluate the evidence of the experts when there is no competing opinion amongst them?" They are in complete agreement in that they are unable to say whether direct DNA or transfer DNA is more likely than the other to explain the DNA on the complainant. If there had been a competing opinion then it may be a matter for a jury to consider. This does not occur in this case. 3. In R v GZ [2015] ACTSC 229, the accused was charged with two counts of sexual intercourse with a child under ten years based on allegations that the accused licked the complainant's genital area. DNA was located on the inside of the complainant's underwear, the prosecution, alleging that the DNA originated from the accused's saliva. It was contended that the DNA was transferred from the complainant's skin to her underwear by process of secondary transference. 4. It was ruled pursuant to s 137 that the DNA evidence was inadmissible. This was so because no expert testimony would enable a jury to determine whether it was more likely that the DNA came to be on the complainant's underwear by a process of direct transference as alleged by the prosecution, or by a process of secondary transference by contamination. There is a similarity of argument in this case. 5. It is firmly established that to make a relevant finding the jury must have an evidentiary foundation for choosing between competing accounts or opinions in relation to a fact in issue. The point here is not that juries cannot resolve conflicts between expert testimony for they are frequently called upon to do so, but the juries must have a reasonable basis for doing so: DPP v Paulino [2017] VSC 345 [8]. In my view, no reasonable basis occurs in this case because the expert evidence is the same. There is nothing that differentiates the experts in their opinion. 6. In Wise (supra) the Court of Appeal held the trial judge's decision to exclude evidence of the accused's DNA in the underwear of the complainant because innocent transference was an open explanation and a conclusion of guilty transference would be "wholly speculative." 7. In my view, in light of the expert evidence, a conclusion of guilty transference would be wholly speculative. 8. I am concerned that a jury may misuse the evidence. DNA evidence is complex. It involves explanation of forensic sample taking, analysis and statistics. These are matters about which the jurors would not be expected to be familiar with and will require directions regarding the proper use of the evidence. 9. It is not clear how any directions could be given to guard against the misuse of DNA evidence when the experts are in agreement. To allow the evidence would, in my view, invite the jury to engage in impermissible speculation about how the transference might or might not have occurred. That is whether it is direct DNA or transfer DNA, a matter which the experts are unable to assist. 10. In DPP v Wise the Court made this observation at [70]: "Moreover, one of the dangers associated with DNA evidence is what has become known as the 'CSI effect'. The 'CSI effect' is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by the descriptions of DNA findings. As we have explained, as a matter of pure logic, the DNA evidence has little or no probative value. By virtue of its scientific pedigree however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy — no matter the direction of a trial judge — and give it weight that it simply does not deserve. The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small." 1. Having regard to the 'CSI effect' the jury would be tempted to place undue weight on the evidence which has almost no probative value. 2. I refuse to admit the evidence sought to be adduced by the prosecution because if it does have probative value, which I very much doubt, that value is outweighed by the danger of unfair prejudice to the accused by reason of the possibility of misuse of the evidence by the jury. 3. The evidence is excluded pursuant to s 137. ********** 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: 24 July 2019