Director of Public Prosecutions v Chapman (a pseudonym)
[2021] VCC 1321
•17 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HORACE CHAPMAN (A PSEUDONYM) |
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JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2021 | |
DATE OF RULING: | 17 September 2021 | |
CASE MAY BE CITED AS: | DPP v Chapman (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1321 | |
RULING
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Subject: CRIMINAL LAW - EVIDENCE
Catchwords: EVIDENCE – criminal trial - admissibility – coincidence evidence – sexual offences - coincidence notice – whether the evidence has significant probative value – whether the similarities relied upon are commonplace features of sexual offending - whether probative value substantially outweighs prejudicial effect – whether prejudicial effect can be cured by jury directions
Legislation Cited: Evidence Act 2008
Cases Cited:Neil Leonard (a pseudonym) v The Queen [2021] VSCA 172; IMM v The Queen (2016) 257 CLR 300; R v Lockyer (1996) 89 A Crim R 457; Rapson v The Queen [2014] VSCA 216; R v Bauer (2018) 266 CLR 56; Robert Pearson (a pseudonym) v The Queen [2016] VSCA 341; CW v The Queen [2010] VSCA 288; Harris (a pseudonym) v The Queen [2015] VSCA 112; Tognolini v The Queen (2011) 216 A Crim R 188; CGL v DPP (2010) 24 VR 486
Ruling: For the defence
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Victorian Legal Aid |
HER HONOUR:
Introduction
1The accused, Horace Chapman,[1] is charged with one count of aggravated rape, one count of burglary and three counts of rape. The offences were allegedly committed against two complainants: Eloise Ingram and Pam Walsh.[2] The charge of aggravated rape relates to the first complainant, Ms Ingram (the Ingram offending). The other charges relate to the second complainant, Ms Walsh (the Walsh offending).
[1] A pseudonym.
[2] Pseudonyms.
2On 16 August 2021, the prosecution filed and served an amended coincidence notice pursuant to s98(1)(a) of the Evidence Act 2008 (the Act). The prosecution intends to adduce coincidence evidence to prove that the accused was the person who committed the offences.
3At the start of pre-trial argument, defence counsel, Mr Malik, informed the court that the accused offered, and maintains his offer, to plead guilty to the Ingram offending on arraignment but not guilty to the Walsh offending.
4For the reasons set out below, in my view, the coincidence evidence does not have significant probative value either by itself or having regard to other evidence adduced or to be adduced.[3] Even if the evidence does have significant probative value, the probative value of the evidence does not substantially outweigh any prejudicial effect it may have upon the accused.[4]
[3] Evidence Act 2008 s98(1)(b) (Evidence Act).
[4] Ibid s101(2).
The Ingram offending
5The offence involving Ms Ingram occurred on the evening of 25 August 1984. She was 24 years old at the time.
6Ms Ingram and a group of her friends attended a nightclub in Traralgon. At around 10 or 11 pm, she left the nightclub to meet her friend at a nearby venue. Ms Ingram made her way down the street towards the venue on foot.
7Ms Ingram was walking along the street when she needed to go to the toilet. As she approached an intersection, she left the footpath and walked into a garden area before stopping at a nearby tree.
8As Ms Ingram stopped behind the tree, she noticed a man running ‘‘pretty fast’’ along the path she had taken.
9The man stopped at the intersection and appeared to look around. He spotted Ms Ingram under the tree, before walking in an easterly direction. Ms Ingram waited ‘‘a little while’’ for the man to leave the area. Once he was out of sight, she began making her way back towards the footpath.
10As she started walking, Ms Ingram was suddenly grabbed from behind. The man put his right hand across her mouth and put his left arm across her chest, pinning her arms to her body.
11The man dragged her backwards towards the garden area and pushed her down onto her back. He pushed her head to the side, saying, ‘‘Don't you look at me’’. He then removed her jeans and her underwear before inserting his penis into her vagina.
12Ms Ingram tried to get away by crawling on her hands and knees as fast as she could away from the gym, but the man grabbed her by the shoulders and started shoving her up and down ‘‘pretty hard’’. He repeatedly slammed her head against a wooden sleeper that formed the edge of the garden bed, causing her to lose consciousness.
13When Ms Ingram regained consciousness she made her way to a nearby house and knocked on the door. She was assisted by an unknown male resident, who contacted the police. She was taken to the Traralgon Police Station.
14On 26 August 1984, Ms Ingram was examined at the Central Gippsland Hospital. A number of swabs, including vulval and vaginal swabs, were taken. Microscope slides were prepared from these samples. Spermatozoa were observed on the slides.
15In 2012, two swab heads were examined and sampled for DNA testing. Spermatozoa were detected on microscope slides prepared from these samples.
16In 2016, both the vulval swab and vaginal swabs were analysed by Ms Kate Outteridge, forensic officer. Spermatozoa was observed on microscope slides, confirming the presence of semen. The sperm fractions were single source DNA. The DNA profiles obtained from the samples were compared to the DNA profile obtained from the accused.
17In Ms Outteridge's opinion, the accused could not be excluded as a contributor to the single source DNA profile in the sperm samples. The likelihood ratio of the accused being the source was 100 billion to one (the Ingram DNA evidence).
The Walsh offending
18The offences involving Ms Walsh occurred on the evening of 27 October 1984. She was 16 years old at the time of the alleged offending.
19Ms Walsh was alone at her home in Traralgon. At some time between 11 pm and 4 am she woke up from her sleep and sensed someone in her room. She said, ‘‘Who's there?’’. Hearing movement, she sat up in bed and repeated, ‘‘Who's there?’’. Suddenly a man jumped on top of her, saying, ‘‘If you scream I'll stab you’’.
20The man put his hands on her shoulders and pushed her onto her back. Ms Walsh noticed that her digital clock was not working and thought that the power had been turned off.
21Ms Walsh recalled her doona being pulled off or down and that the man must have taken her underwear off. She recalled him putting his penis inside her vagina and that she ‘‘just wanted it to stop’’. The man then put his penis into her mouth and then back into her vagina. When the man stopped, he pulled her from her bed. He stood behind her, using one hand to hold one of her arms behind her back and the other to grab her shoulder and some of her hair.
22Ms Walsh recalled the man pushing her out of her room and down the hallway, asking, ‘‘Where's the phone?’’. She led him to the lounge area, where the telephone was on a telephone stand attached to the wall. The man grabbed the telephone and ripped the cord from the wall, saying, ‘‘If you tell anyone, I'll kill you’’, before leaving the house.
23Once the offender had left, Ms Walsh sat in the lounge room for a period of time. She then ran across the road to her friend’s house. Her friend’s father answered the door. Ms Walsh’s mother was called and she came to the house. Her mother then called the police.
24On 27 October 1984, Ms Walsh was taken to Central Gippsland Hospital to be examined. A number of samples were obtained, including a vulval, vaginal and mouth swab. No spermatozoa were detected. Blood was detected on a bedsheet.
25In 2012, a number of items were examined and sampled for DNA testing including the bloodstain from the sheet. Blood was confirmed on the fabric. No spermatozoa were detected on slides prepared from bloodstains on sample fabric from panties and a sanitary napkin.
26In 2016, the DNA profiles obtained from the sample were compared to the DNA profiles obtained from Ms Walsh and the accused by Ms Outteridge. In relation to the bloodstain from panties, the accused was excluded as a contributor.
27The blood on the sheet contained a mixed DNA profile. DNA analysis yielded a mixed DNA profile with two contributors. Ms Walsh was a major contributor to the sample. Ms Outteridge concluded that the accused could not be excluded as a minor contributor. The likelihood ratio of Ms Walsh being a contributor was
100 billion to one, whilst the likelihood ratio of the accused being a contributor was 5.5 billion to one (the Walsh DNA evidence).28Under cross-examination at the committal hearing, Ms Outteridge conceded that she could not say whether the DNA was deposited during the offending or at some other time.[5] She was unable to say whether the DNA from the minor contributor was deposited due to primary or secondary transfer.[6] Finally, she could not determine the source of the biological sample attributable to the accused (for example, whether it came from blood or another source such as saliva or semen).[7]
[5] Committal Transcript (‘CT’) page 17, lines 6-15 (especially lines 14-15).
[6] CT18.18-22.
[7] CT10.6-12.
Arrest
29On 27 September 2016, the accused was arrested and gave a no comment interview. He participated in a forensic procedure and provided a sample of his DNA by way of a mouth swab.
The coincidence notice
30The prosecution alleges that the similarities between the Ingram offending and the Walsh offending and the circumstances in which the offending occurred are such that it is improbable the offending occurred coincidentally.[8]
[8] Coincidence Notice, [4].
31The prosecution relies upon the following similarities (the coincidence evidence):[9]
(a) the incidents occurred within approximately a two-month period in 1984;
(b) each of the incidents occurred close to where the accused was living;
(c) each of the incidents involved females who were unknown to the accused;
(d) each of the incidents occurred at night;
(e) each of the incidents involved females who were alone;
(f) each of the incidents involved violence or threats of violence; and
(g) the investigation into each of the incidents yielded a DNA sample which implicated the accused in the commission of the alleged offences with a very high likelihood ratio.
[9] Ibid.
Prosecution submissions
32Mr Grant, counsel for the prosecution, submitted that the coincidence evidence, taken by itself and having regard to other evidence adduced or to be adduced, has significant probative value in proving the identity of the offender in both sets of offending but particularly the Walsh offending. The prosecution also intends to use the coincidence evidence to rebut the likely defence of transference in relation to the Walsh offending.
33The probative value of the evidence must be considered in the circumstances of each of these offences in their entirety, in the context of the evidence as a whole.[10]
[10] Pre-Trial Hearing Transcript (‘PT’) page 6, lines 8-12.
34Mr Grant submitted that the DNA evidence is the piece of circumstantial evidence that, together with the other similarities in the offending, is what ‘‘really takes this case past the threshold’’.[11] Were it not for the DNA evidence there would still be an arguable coincidence case, but Mr Grant conceded it would be nowhere near as compelling.
[11] PT9.7.
35In relation to the Ingram DNA evidence, Mr Grant emphasised the extremely high likelihood ratio and the fact that the sample was a sperm sample, which is relevant to the offending. The nature of the sample means the probative value of that evidence is extremely high.
36In relation to the Walsh DNA evidence, the likelihood ratio is high, being 5.5 billion. The mixed DNA profile was on the bedsheet that Ms Walsh was in at the time the alleged offences occurred, giving the evidence significant probative value.
37Mr Grant contended that the fact the accused's DNA was found at the scene of the crimes has high probative force, because it strongly suggests the accused was present at the scene of both crimes. Mr Grant submitted by way of analogy that if a fingerprint consistent with the accused's was found on a garden bed where the first alleged offence occurred and a fingerprint consistent with the accused's was found in the bedroom where the second offence occurred, it could be relied upon to implicate the accused in each of the offences. Mr Grant conceded that the issue of transference in relation to the Walsh offending puts it into a slightly different position, since a fingerprint cannot be transferred in that way.
38The jury is entitled to and should be allowed to rely on the fact a DNA sample that could not exclude the accused was found at the scene of a violent sexual offence two months earlier in a nearby location in grappling with the issue of transference in respect of the Walsh offending. Mr Grant said the accused had not challenged the admissibility of the DNA evidence or the procedures used to analyse the DNA. The jury would be directed that they could only reach the conclusion that it was improbable that the accused was not the offender in relation to each of the charges if it was the only reasonable inference open on the evidence. They could not convict unless there was no reasonable possibility of transference.
39The prosecution relied upon the other similarities in the coincidence notice but conceded there is no specific admissible evidence as to the accused's actual address at the time. If the application is successful, the prosecution would seek to obtain evidence of his address. Both offences involved significant violence and force and together with the other similarities relied on, despite some differences, it is a very compelling case.
40The strength of the DNA evidence ameliorates any differences in the circumstances of the offending and any suggestion that the other features are 'stock in trade'.
41Mr Grant contended that the probative value of the evidence substantially outweighs any unfair prejudicial effect it may have on the accused. He conceded that the coincidence evidence is prejudicial but contended it is not unfairly prejudicial. Just because the DNA evidence is so compelling does not increase its prejudicial effect. The evidence is so strong and the accused is going to plead guilty to the Ingram offending, it takes the whole issue of unfair prejudice out of the balancing exercise. To the extent there is a risk of unfair prejudice, it can be cured by way of jury directions.
Defence submissions
42Mr Malik submitted that the evidence does not have significant probative value either by itself or having regard to other evidence adduced or to be adduced.
43Neither individually nor in combination do the factors relied upon possess ‘‘a quality or feature akin to what the common law contemplated as strikingly similar’’.[12]
[12] Neil Leonard (a pseudonym) v The Queen [2021] VSCA 172, [8] (Priest JA).
44In relation to the geographic and temporal similarities, those factors have probative value only if it is assumed the accused was the only person committing sexual offences in Traralgon in that two-month window. He submitted that it is entirely possible someone else was committing sexual offences in Traralgon in that period, given the prevalence of sexual offending generally.
45In relation to the rest of the similarities, including the characteristics of the victims, the fact both offences took place at night and the fact that they both involved penetration, Mr Malik submitted that there is nothing striking about those matters. These sorts of similarities, he argued, are commonplace to sexual offending.
46Further, there are a number of significant differences between the offending. First, there were differences in the locations where the offences took place. In the case of the Walsh offending, the offender broke into her home, while Ms Ingram was sexually assaulted in public.
47Secondly, the modus operandi was different. The Walsh offending involved an element of pre-planning: the offender must have known the victim was at home alone and even went so far as to turn off the power to avoid detection. The offender then disconnected the telephone before he left to make sure the victim could not contact the police. By contrast, the Ingram offending, which saw the offender approach the victim and assault her in a public place, was opportunistic and unplanned.
48The prosecution must prove beyond reasonable doubt that it was the accused who committed the Walsh offences. The prosecution must rebut the reasonable possibility of innocent transference. The DNA evidence deposited in the course of the Ingram offending does not make it improbable that the trace DNA on Ms Walsh's bedsheet occurred other than during the course of the offending. Mr Malik contended it relies on ‘bootstrap’ reasoning. One must accept that the DNA was deposited there during the commission of the offence before it is probative of identity of the offender. The likelihood ratio is relevant only to whether the DNA is attributable to the accused. If, as the prosecution contends, the accused was in or around the area at the time, this feeds into the issue of reasonable possibility of innocent transference. These matters can be decided by a jury on the basis of the evidence in relation to the Walsh offending only.
49Should the court consider the coincidence evidence has significant probative value, Mr Malik contended it ought be excluded as any probative value would not substantially outweigh any prejudicial effect it may have on the accused. Mr Malik submitted that adducing evidence of the Ingram offending, in particular the high likelihood ratio, would lead a jury to attach more weight to the DNA evidence from the Walsh offending than is otherwise warranted.
50He contended that if a jury were to hear that the accused raped a stranger in a park in Traralgon two months earlier, a jury would misuse the evidence in the Ingram offending as propensity evidence and a jury would not attach the necessary thought, weight or veracity to the limitations of the DNA evidence, the possibilities of transference or the forensic disadvantage suffered by the accused due to the passage of time and the limitations of DNA testing at the time of the Walsh offending.
Legal principles
51Section 98 of the Act outlines the coincidence rule, which states the following:
98 The coincidence rule
(1)Evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless―
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note
One of the events referred to in sub-s(1) may be an event the occurrence of which is a fact in issue in the proceeding.
(2) Sub-section (1)(a) does not apply if –
(a)the evidence is adduced in accordance with any directions made by the court under s100; or
(b)the evidence is adduced to explain or contradict evidence adduced by another party.
Note
Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
52Section 98(1) defines coincidence evidence as two or more events adduced to prove that, because of similarities in the events or the circumstances in which they occurred, it is improbable that the events occurred coincidentally.[13] The jury may then infer that the accused was the person who committed the offences.
[13] Evidence Act s98(1).
Significant probative value
53Coincidence evidence is inadmissible unless, by itself or having regard to other evidence adduced or to be adduced, it has significant probative value.[14]
[14] Ibid s98(1)(b).
54The Act defines probative value as ‘‘[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’’.[15] In this proceeding, the fact in issue is the identity of the Walsh offender.
[15] Ibid sch 2.
55The Act does not define ‘significant’. However, the authorities indicate that the evidence must be ‘‘important’’ or ‘‘of consequence’’.[16] It must exhibit more than ‘‘mere relevance’’.[17]
[16] IMM v The Queen (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’); R v
Lockyer (1996) 89 A Crim R 457, 459.
[17] Rapson v The Queen [2014] VSCA 216, [16].
56In IMM v The Queen (IMM), a majority of the High Court held that in assessing probative value I must take the evidence ‘‘at its highest’’ and assume the jury will accept the evidence. Matters of credibility and reliability are irrelevant.[18]
[18] IMM, 312 [39] (French CJ, Kiefel, Bell and Keane JJ).
57In assessing the probative value of the evidence, I must not consider the evidence in isolation but in the context of the evidence as a whole.[19] In Robert Pearson (a pseudonym) v The Queen,[20] Osborn and Beale JJA held that:
The question is not whether particular elements of the circumstances themselves demonstrate a probative similarity but whether the circumstances as a whole do so. The combination of circumstances may allow an inference to be drawn where consideration of a particular circumstance in isolation would not. Moreover, as the trial judge held, the combined effect of the coincidence evidence must be assessed in the light of the evidence upon which the prosecution relies as a whole.[21]
[19] PT6.8-12.
[20] [2016] VSCA 341 (‘Pearson’).
[21] Ibid [25] (Osborn and Beale JJA).
58‘‘Striking similarities’’ between the offending and the circumstances in which it occurred are not required.[22] This is because the expression is a hallmark of common law similar fact evidence. However, where identity is in issue, striking similarities may be ‘‘helpful’’.[23]
[22] CW v The Queen [2010] VSCA 288, [22].
[23] Harris (a pseudonym) v The Queen [2015] VSCA 112, [18].
59If other strong circumstantial evidence links the accused to the offending, striking similarities are less important. Indeed, strong circumstantial links coupled with commonplace offending may still indicate that it is improbable someone else was the offender.
60As Nettle JA (as he then was) opined in Tognolini v The Queen:
…if there is evidence which in some way connects an accused with a series of offences, as well as with the offence which is charged, then, even though it may fall short of striking similarity or signature, the combined effect of the evidence can render it so improbable that any person other than the accused committed each of the offences as to make evidence of all admissible.[24]
[24] (2011) 216 A Crim R 188, 191 [8].
Prejudice
61Section 101 of the Act imposes additional restrictions on coincidence evidence adduced by the prosecution:
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to ss97 and 98.
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the accused.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the accused.
62The prosecution cannot adduce coincidence evidence against an accused ‘‘unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused’’.[25]
[25] Evidence Act s101(2).
63In IMM, Nettle and Gaudron JJ described unfair prejudice as ‘‘[a] real risk that the evidence would be misused or divert jurors from their task in spite of directions’’.[26]
[26] IMM, 334 [125].
64The words ‘‘unfair prejudice’’ do not appear in s101(2). However, in R v Bauer (Bauer),[27] the High Court held that ‘‘[d]espite textual differences between the expressions ‘prejudicial effect’ in s101(2), ‘unfairly prejudicial’ in s135 and ‘unfair prejudice’ in s137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way’’.[28]
[27] (2018) 266 CLR 56 (‘Bauer’).
[28] Bauer, 93-4, [73].
65It is also necessary to consider whether any prejudice can be cured by direction.
66In considering whether coincidence evidence is admissible, the court must have regard to the following four questions:[29]
1.Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?
2. If so, would the evidence of those events and circumstances tend to prove that the accused:
(a) did the specified act; or
(b) had the specified state of mind
where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue?
3.If so, does the evidence have "significant" probative value, either by itself or having regard to other evidence adduced or ought to be adduced by the prosecution?
4. If so, does the probative value of the evidence "substantially" outweigh any prejudicial effect it may have on the accused?[30]
[29] CGL v DPP (2010) 24 VR 486. Questions 1, 2, and 3 are derived from s98 of the Evidence Act, whilst
question 4 is derived from s101.
[30] Ibid 493, [22].
Conclusion and analysis
67In my view, the evidence does not have significant probative value either by itself or having regard to other evidence adduced or to be adduced. The jury could not safely infer that, by reason of the similarities in the events or the circumstances in which they occurred, it is improbable that someone else committed the Walsh offending. I make those observations taking the evidence at its highest and assuming the jury accepts the evidence.
68Even if the coincidence evidence has significant probative value, I do not consider that its probative value substantially outweighs any prejudicial effect it will have on the accused. I will deal first with significant probative value.
Section 98
69In my view, the Ingram DNA evidence is probative of identity in the Walsh offending only if the accused's DNA was deposited on Ms Walsh’s bedsheet during the offending. That proposition is problematic in circumstances where at committal Ms Outteridge conceded that:
(a) she could not say when the DNA was deposited;
(b) the DNA from the minor contributor may have been deposited due to primary or secondary transfer; and
(c) the evidence says nothing about how the DNA was placed on the bedsheet, as the source of the DNA attributable to the accused is unknown. The Walsh DNA evidence is trace DNA.
70I do not accept Mr Grant's contention that the Ingram DNA evidence affects the improbability of the accused's DNA being deposited onto Ms Walsh’s bedsheet other than during the course of the offending. The prosecution's argument relies on ‘bootstrap’ reasoning. One must accept that the accused’s DNA was deposited on Ms Walsh’s bedsheet during the commission of that offending before the Ingram DNA evidence is probative of identity of the offender in the Walsh offending. The high likelihood ratio is relevant only to whether the DNA is attributable to the accused, not how or when it got there.
71In my view, the geographic and temporal connections between the offending are of little assistance in proving the identity of the Walsh offender. I accept Mr Malik's contention that they have probative value only if I assume the accused was the only person committing sexual offences in Traralgon in the two-month window alleged. This is highlighted by Mr Grant's submission that ‘‘[t]he Crown is saying that it's improbable that [the accused] was [not] the only person committing violent stranger rapes in Traralgon at the relevant time who left his DNA at the scene of the crime’’. This reasoning assumes that the accused deposited his DNA onto the bedsheet at the time of the offending. The reasoning is circular.
72The balance of the similarities on which the prosecution relies are ‘commonplace’ features of sexual offences. In making that observation, I accept that ‘‘striking similarities’’ are not required. The similarities are not so great, however, that one can safely infer that they involved the same person such that the improbability of coincidence imbues the evidence with significant probative value.
73Rather, the differences in the circumstances of the offending are inconsistent with a conclusion that the overall similarity of the offending can be relied upon by the prosecution, taking the evidence at its highest.[31] I agree with Mr Malik that, shortly stated, one is a planned home invasion, the other an opportunistic street attack. I do not accept that the DNA evidence ameliorates those differences because, as I have already indicated, the Ingram DNA evidence lacks probative force on the question of identity of the Walsh offender.
[31] Pearson, [35].
74For these reasons, in my view, the coincidence evidence relied upon does not have significant probative value either by itself or having regard to other evidence adduced or to be adduced. The evidence sought to be admitted is not cogent enough to be admitted as proof of identification of the offender considered in the context of all of the evidence.
75A jury can properly determine the issue of DNA transference and the likelihood of whether or not this was a case of innocent transference on the basis of the Walsh evidence alone, without reference to the Ingram offending.
Section 101
76Even if I had concluded that the coincidence evidence has significant probative value, I do not consider its probative value substantially outweighs any prejudicial effect it will have on the accused. Adducing the DNA evidence from the Ingram offending to prove the identity of the offender in the Walsh offending poses several risks.
77The strength of the Ingram DNA evidence, being single source DNA from sperm, the high likelihood ratio, together with the accused's plea of guilty, would likely lead to classic propensity reasoning: if the accused committed the Ingram offending, he must have committed the Walsh offending.
78There is a real risk a jury would not have proper regard for the possibility of transference, using the Ingram DNA evidence to conclude not only that the Walsh DNA evidence was the accused's, but that it could only have been left there during the course of the offending.
79I accept Mr Malik's submission that the time that has elapsed since the offences were committed gives rise to forensic disadvantage. Due to the passage of time, several key pieces of evidence relating to both incidents are missing. This includes the mouth, vaginal and vulval swabs taken from Ms Walsh, as well as pubic hair combings. Mr Malik submitted that if the investigation were to occur today there would be widespread swabbing of various items such as the meter box where the offender allegedly turned off the power or the telephone that the offender is alleged to have ripped from the wall.
80The passage of time also means that the accused is unable to provide an account of his movements in and around the time of the Walsh offending. Such an account may have shed further light on the question of transference.
81Whilst the accused will still need to confront these issues in a 'Walsh alone’ trial, and the fact that the Walsh DNA evidence was in a blood sample from the victim's bedsheet, the admission of evidence of the Ingram offending increases the risk that propensity reasoning would be employed to 'bootstrap' the Walsh DNA evidence, to gloss over the forensic disadvantages suffered by the accused and to fill any gaps. There is a real risk that the evidence would be misused or divert jurors from their task in spite of directions.
82I am not satisfied that the probative value of the coincidence evidence substantially outweighs the prejudicial effect it will have on the accused.
83The coincidence evidence sought to be adduced by the prosecution ought not be admitted.
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