Director of Public Prosecutions v Atesok
[2022] VCC 1352
•29 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01478
CR-20-01436
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATESOK & ANOR |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 June 2022 |
DATE OF RULING: | 29 June 2022 |
CASE MAY BE CITED AS: | DPP v Atesok & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1352 |
RULING
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Subject: Armed robbery – Identity – Relevance - Application to exclude evidence – Danger of unfair prejudice pursuant to section 137 of the Evidence Act 2008 (Vic) – CSI effect –
Legislation Cited: Crimes Act 1958 (Vic); Evidence Act 2008 (Vic).
Cases Cited: R v Berry [2007] VSCA 202; Yan Vyater v The Queen [2020] VSCA 32.
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu Mr S. Davison | Ms N. Stevenson |
For the Accused | Mr P. Bloemen | Ms J. Hughes Ms R. George |
R U L I N G
HER HONOUR:
Before the court are applications to exclude evidence under section 55 of the Evidence Act, section 137 of the Evidence Act or both.
Background
On 28 January 2020, there was an armed robbery committed at Club Leeds, Footscray. It is alleged by the Crown, that at about 9.15 in the morning, two robbers arrived in a black Jaguar F-Pace motor vehicle that had false registration plates affixed to the vehicle. The pair left the motor vehicle and entered the premises. At the conclusion of what was a particularly violent robbery, the pair returned to the vehicle and departed.
Investigation
Police investigated the matter by first examining CCTV footage downloaded from the premises. During the course of the robbery, both persons had touched a security guard's shirt in different places. His shirt was removed, placed into evidence, and tested for DNA.
DNA evidence & the CSI effect
The shirt was tested in various places based on where the security guard had been touched. It is not in dispute that if a shirt is taken from a witness and put into an evidence bag, there is always the possibility that DNA evidence will find itself transferred elsewhere on the shirt.
A mixed DNA profile with 4 contributors, including the security guard, was obtained. One of the accused, Mr Bernard Icho, was found to be 100 billion times more likely to be a contributor whereas the co-accused, Mr Onur Atesok, was found to only be 310 times more likely to be a contributor.
Counsel for the accused submit that because a jury will receive and watch CCTV evidence of a robbery in progress and later receive information about the parts of the shirt that were apparently touched by one accused or another, resulting in some DNA evidence from both accused being transferred to the shirt, in different levels; such evidence is capable of being misused by a jury.
Relevance
Evidence is admissible if it is relevant to a fact in issue.[1] The factual issue in this trial is whether or not the two robbers are Mr Atesok and Mr Icho. As the DNA evidence rationally affects the assessment of the probability of the existence of that fact, it is relevant and therefore, admissible.
[1]Evidence Act 2008 (Vic) ss 55-56.
Danger of unfair prejudice
A court must refuse to admit evidence adduced by the prosecution if the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.[2] The court is required to balance the probative value[3] of the evidence with the danger of unfair prejudice being the danger of the evidence being misused in a prejudicial way by the jury.
[2] Ibid s 137.
[3] The extent to which the evidence rationally affects the assessment of the probability of the existence of the fact in issue; Ibid Sch 2, Part 1 – The Dictionary.
It is to be noted that evidence that tends to prove that an accused committed a crime is not inherently prejudicial. The requirement on section 137 is that there is a danger of unfair prejudice, that is, that there is a danger that the jury will misuse the evidence in a way that a jury is not entitled to. In the context of DNA evidence, this has been referred to as the CSI effect. While well settled in several cases, I'm grateful for the most recent reference to the Victorian Cases, both of Berry[4] and the case of Yan Vyater.[5]
[4]R v Berry [2007] VSCA 202.
[5]Yan Vyater v The Queen [2020] VSCA 32.
10.In Yan Vyater, the court said that:
[The] jury would have been able to comprehend and evaluate [the evidence’s] probative value whether it was expressed in the language of ‘moderate support’ or in the form of [a] statement that it was ‘26 times more likely’ that the DNA came from the applicant than from a person chosen at random.[6]
[6]
11.In my view, the jury in this case will be assisted by such evidence. Both the prosecution and defence will call experts and they appear to be well qualified to give the evidence that they will be asked to give.
12.That is to say, they will evaluate the numerical ratio that the DNA reflects and explain this in simple language. The ratio does not mean that there is 100% proof or even 50% proof that it was either of the accused that deposited DNA. The submission that a jury would impermissibly misuse the evidence of the CCTV combined with the evidence of the DNA, cannot be sustained.
13.In a circumstantial case, a jury is required to assess each piece of evidence individually. A trial judge would direct a jury to do so and in doing so, a jury would be told that they are only to deal with evidence they assess to be acceptable and truthful depending on the nature of the evidence. If the jury were to not accept the evidence, they would be required to put it aside.
14.In relation to the evidence that is retained, they would need to consider that evidence and only that evidence and ultimately come to a conclusion whether the inference sought to be drawn by the Crown is the only rational inference that can be drawn from the entirety of the accepted evidence. Essentially, that one or both of the accused committed the offence charged.
15.The jury will be told that if they come to a conclusion that there is another reasonable or rational conclusion from the entirety of the evidence that is consistent with the innocence of the accused, they would then have to return a verdict of not guilty. This is not a direction that is given to a jury lightly; it is a direction that is given to the jury in every case concerning circumstantial matters. Juries have and do, in my experience, and in the experience of those far more experienced than me, listen to the directions of judges, take notice of directions of judges and act on the directions of judges.
16.So, in relation to the evidence of the DNA on the shirt relating to both accused, I do not find that a jury could or would use that evidence impermissibly. There is no danger, in my view, of unfair prejudice to the accused by the admission of that evidence. As there is no danger of unfair prejudice to the accused by the admission of that evidence, the court must admit it.
17.In relation to a second piece of evidence, namely, the DNA in the motor vehicle, the probative value is low. It was not until weeks after the commission of the robbery that the vehicle was tested. As I understand it, the motor vehicle had been left possibly unattended and possibly not, within that time.
18.There is no doubt that there was ample time after the robbery for either accused to either sit in the motor vehicle and leave DNA that way, or for there to be some kind of transference of DNA from some other person, or some other thing, onto the motor vehicle within that time. In addition, as I understand it, there is some evidence from the prosecution that the accused, Mr Atesok, had some association with the motor vehicle before the robbery occurred.
19.As far as the motor vehicle is concerned, the prosecution will not be able to present evidence of DNA having been found at a particular time. That being said, there is very little to suggest that the very slight probative value of this evidence would be outweighed by the danger of unfair prejudice to the accused. Again, neither accused can point to a danger of unfair prejudice and again I observe that unfair prejudice must be something more than evidence that points toward the general direction of guilt.
20.Lastly, in relation to what is alleged to be a red hat, the probative value of the evidence is slight. I note that according to Detective Senior Constable Robinson, there was a red item observed in CCTV to be on the lap of the robber who was sitting in the Jaguar shortly prior to the robbery. At this stage, as far as I can tell from the evidence, that particular robber has not been identified.
21.Mr Icho was seen on 21 January, about a week before the robbery, signing on for bail at the Broadmeadows police station. He was wearing a red cap which apparently has some detail in the CCTV footage. I have viewed evidence that on 27 January 2020, that is, the day before the robbery, the accused was interviewed by police and the interview was covered by body worn camera footage.
22.In that footage, which I have viewed there is a person who I am told is the accused. The person is wearing what might be a red cap, and according to DCS Robinson, he is also wearing a gold ring.
23.I must admit that I did not see that on the footage that I saw in this courtroom. However, there is another time where a person who apparently is the accused wears a red cap on another occasion. On another occasion, three weeks after the robbery, the accused, Mr Icho, is arrested. A red cap was located, as far as I can tell, in a vehicle that he was sitting in. The cap was photographed and is apparently distinctive in some way. That is all the evidence that I can find about the red cap. There is also another person wearing a red cap filling up the Jaguar motor vehicle at a different time. That person is not Mr Icho.
24.As with all cases concerning circumstantial evidence, it is not the case that every piece of evidence has to be of remarkable weight. As far as I can see, each piece of evidence relating to the red cap, and/or another red item, are questions of fact that a jury will ultimately consider on the whole of the evidence.
25.They will be required to view the CCTV evidence on 28 January of a red item sitting on the robber's lap and decide whether it is a cap or not. If the jury decide that it is a red cap, then they can look at that item and decide whether, on looking at the other pieces of evidence, it is important or not. They may conclude it is not a red hat at all and that is a matter for them.
26.In my view, the cap enlivens an issue under section 55 as opposed to section 137 of the Evidence Act. Section 55 would be satisfied it the cap was accepted – and that is the issue. The prosecution submit that if you look at the red item on the lap, you can tell that it is a cap. My job at this stage is to not decide whether the prosecution evidence is acceptable or not, but to take the prosecution case at its highest. The prosecution case, at its highest, is that the red item on the robber's lap is a cap. The prosecution case is that it the same cap seen several days later being worn by one of the accused.
27.This is a question of fact for the jury. The jurors will have to make up their minds in relation to that and decide what weight to give to the evidence. In relation to this piece of evidence, I cannot see any issue arising under section 137.
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