Ashley Ramaros (a pseudonym)[1] v The Queen - [2018] VSCA 143

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0063

ASHLEY RAMAROS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[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.

JUDGES:	PRIEST, KYROU and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2018
DATE OF JUDGMENT:	25 May 2018
DATE OF REASONS:	4 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 143
RULING APPEALED FROM:	DPP v [Ramaros] (Unreported, Supreme Court of Victoria, 19 and 26 March 2018)

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CRIMINAL LAW — Interlocutory appeal — Murder — DNA evidence — Whether crime scene examiner’s opinion that knife had apparent blood staining is admissible — Whether probative value outweighed by risk of unfair prejudice — Applicant’s DNA evidence found on implements which might have been used to kill the deceased — Whether expert evidence of direct DNA transference admissible — Whether probative value outweighed by risk of unfair prejudice — Appeal allowed in part — Evidence Act 2008 ss 55, 56 and 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Johns QC with Mr R J de Kretser	Fitzroy Legal Service
For Respondent	Mr M Rochford QC with Ms G A Coghlan	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
ASHLEY JA:

Introduction

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

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

Overview

The applicant is charged with murdering ‘TCN’.

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

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

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.

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]
[3]On 26 March 2018, the trial judge certified that two of his rulings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSCA 143
Decision Date: 25 May 2018

CaseChat Overview and Summary

The appellant, identified as Ashley Ramaros, was convicted of the murder of a person whose identity was protected under the pseudonym of the case. The appeal before the court was an interlocutory appeal concerning the admissibility of certain evidence that was anticipated to be presented at the trial. The nature of the dispute involved the admissibility of DNA evidence and the opinions of a crime scene examiner, which the appellant sought to challenge on the grounds of unfair prejudice. The case was heard by the High Court of Australia.

The legal issues before the court centred on the admissibility of evidence under the Evidence Act 2008. Specifically, the court had to determine whether the opinion of a crime scene examiner that a knife had apparent blood staining was admissible. The appellant argued that the probative value of this opinion was outweighed by the risk of unfair prejudice. Additionally, the court had to consider whether expert evidence of direct DNA transference was admissible, given that the appellant's DNA was found on implements that might have been used in the commission of the crime. Again, the appellant argued that the probative value was outweighed by the risk of unfair prejudice.

The court, in its judgment, addressed the admissibility of the evidence in question. It found that the opinion of the crime scene examiner regarding the blood staining on the knife was indeed admissible, as its probative value was not outweighed by the risk of unfair prejudice. However, the court held that the expert evidence of direct DNA transference was inadmissible, as it determined that the probative value of this evidence was indeed outweighed by the risk of unfair prejudice. Consequently, the appeal was allowed in part. The court's decision highlighted the importance of balancing the probative value of evidence against the risk of unfair prejudice when determining its admissibility under the Evidence Act 2008.

[1] A pseudonym assigned to protect the identity of the appellant.

Orders