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".
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.
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…
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
AGLC
Aytugrul v The Queen [2012] HCA 15
Case
[2012] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Aytugrul, against his conviction for murder. The central dispute concerned the admissibility of expert evidence relating to mitochondrial DNA analysis of hair found on the deceased's thumbnail. The prosecution's expert witness presented statistical findings in the form of both a frequency ratio and an exclusion percentage.
The legal issues before the High Court were whether the evidence of the exclusion percentage was relevant, given the evidence of the frequency ratio, and whether its probative value was outweighed by the danger of unfair prejudice to the appellant, as contemplated by sections 135 and 137 of the *Evidence Act*. The court also considered whether the evidence of the exclusion percentage was misleading or confusing, and whether judicial notice could be taken of psychological research to support a general rule that exclusion percentage evidence is inadmissible due to unfair prejudice.
The High Court reasoned that the appellant had not demonstrated that the probative value of the exclusion percentage evidence was outweighed by the danger of unfair prejudice. Consequently, neither section 135 nor section 137 of the *Evidence Act* was engaged in a manner that would render the evidence inadmissible. The court found no error in the admission of this evidence at trial.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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.The impugned evidence and objection taken The prosecution called two witnesses to give expert evidence about mitochondrial DNA analysis of the hair that had been found under the deceased's thumbnail. The defence called its own expert on the subject. All three witnesses agreed that the appellant could not be excluded as having been the donor of the hair that had been found, but their evidence differed as to the weight that could be given to this conclusion. One of the two experts called by the prosecution, Ms Gina Pineda, Associate Laboratory Director and Technical Leader of a United States DNA laboratory company, had supplied a written report of the results of mitochondrial DNA testing by the company of the hair recovered from the deceased and its comparison with the results of testing of a sample of blood taken from the deceased and a sample of saliva taken from the appellant. The report expressed the conclusions that the deceased and all her maternal relatives were excluded as the donor of the hair but that the appellant and his maternal relatives were not excluded. Using a database that Ms Pineda later identified and described in her oral evidence, the report said that the mitochondrial DNA sequence identified in the hair sample had been observed "0 times[[5]] in 4839 individuals of various population groups (99.9% excluded)".[5]Ms Pineda accepted, in her oral evidence on the voir dire, that this was an error and that the results observed should be expressed as one time in 4,839 individuals of various population groups (99.9% excluded). Her oral evidence to the jury was to the same effect. In the light of the report Ms Pineda had supplied, trial counsel for the appellant objected to reception of any of Ms Pineda's evidence other than her evidence that the appellant could not be excluded as the donor of the hair. As initially framed, the objection, though mentioning both ss 135 and 137 of the Evidence Act, was founded not on the point made in this Court but on a challenge to the sufficiency of the database relied on by Ms Pineda as a foundation for expressing her further opinions. After evidence was taken on the voir dire, trial counsel did accept, at one point in her submissions, that the witness could express the opinion that one in 1,600 persons could be expected to have the same DNA profile but objected to the witness expressing the same result as an exclusion percentage of 99.9 per cent "[b]ecause it has a connotation that is very different to the reality". But following an adjournment, trial counsel for the appellant pressed the larger and wider objection that the witness could give no evidence extrapolating from observing the DNA sequence once in a database of 4,839 individuals to frequency of occurrence (or exclusion percentage) in the general population because the database used by the witness as the foundation for her opinion was not shown to be a database that would yield relevant results. Only passing reference was made again to the witness giving evidence of an exclusion percentage, the chief thrust of the argument being that Ms Pineda should not be permitted to give evidence of either a frequency ratio of one in 1,600 or an exclusion percentage of 99.9 per cent.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN AND BELL JJ
(dissent)
HEYDON J
(dissent)