DPP v Wise
[2016] VSCA 173
•21 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0085
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DAN WISE (A PSEUDONYM)[1] | 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 name of the respondent.
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| JUDGES: | WARREN CJ, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 July 2016 |
| DATE OF JUDGMENT: | 21 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 173 |
| RULING APPEALED FROM: | DPP v [Wise] (Unreported, County Court of Victoria) |
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CRIMINAL LAW – Interlocutory appeal – Pending trial for a sexual offence – DNA evidence –Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence ruled inadmissible – Judge’s refusal to certify under s 295(3) of the Criminal Procedure Act 2009 – No error in judge’s refusal to certify.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J C Silbert QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr S Ginsbourg | Daniel Taylor & Associates |
WARREN CJ
WEINBERG JA
PRIEST JA:
Introduction
An indictment filed in the County Court charges the respondent, ‘Dan Wise’, with the penile-oral rape of ‘MA’.[2]
[2]Crimes Act 1958, s 38(3).
By a ruling delivered on 10 May 2016, the trial judge ruled to be inadmissible certain DNA evidence upon which the prosecution sought to rely (‘the interlocutory decision’). Subsequently, when requested by the prosecutor to do so, the judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence ‘would eliminate or substantially weaken the prosecution case’.
Pursuant to s 296 of the CPA, the Director of Public Prosecutions (‘the Director’) seeks a review of the judge’s refusal to certify, and, if that application is successful, seeks leave to appeal against the interlocutory decision.
For the reasons that follow, we would refuse the application for review. There is thus no occasion to entertain the application for leave to appeal.
The statutory regime for interlocutory appeals
As this Court has observed more than once, the common law set its face against the fragmentation of criminal proceedings.[3] The introduction of a regime for interlocutory appeals in criminal cases was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable.[4] As may be gleaned from the text of the statute governing interlocutory appeals, it was not the intention of the legislature that fragmentation of criminal proceedings should ordinarily be contemplated. Interlocutory appeals should be reserved for unusual cases. Statutory fetters on appellate intervention emphasise, in our view, that the legislature intended to uphold the authority of the trial judge, and contemplated that such authority should not lightly be interfered with.[5] The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings made in the ordinary course of a criminal trial.[6]
[3]DPP v Pace (2015) 45 VR 276, 283 [24] (Priest and Beach JJA) (‘Pace’); R v DG; DG v The Queen (2010) 28 VR 127, 132 [29] (Buchanan, Weinberg and Bongiorno JJA) (‘DG’). See also R v Elliott (1996) 181 CLR 338, 257; Smith v The Queen (1994) 181 CLR 338, 346.
[4]Pace, 283 [24].
[5]Ibid 284 [25].
[6]Ibid 284 [26].
By reason of s 295(2) of the CPA, a party to a trial on indictment may only appeal to this Court against an interlocutory decision by leave. If, as in this case, an interlocutory decision concerns the admissibility of evidence, s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies — among other things — ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’. (As will become clear, the trial judge was ‘not satisfied that the DNA evidence with its limited probative value is of such importance that its exclusion substantially weakens the Crown case’.)
Should a judge refuse to certify under s 295(3), s 296 provides a mechanism by which the party who requested certification may apply for review. When reviewing the refusal to certify, the Court is required by s 296(4) to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’. The requirement that the Court ‘consider’ the matters as set out in s 295(3) — in particular, whether the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case — means that the Court ‘must give them genuine and realistic consideration, and not engage in the sham of pretending to do so’.[7]
[7]Tuite v The Queen (No 2) [2015] VSCA 180, [25] (Weinberg and Whelan JJA, and Croucher AJA) (‘Tuite’).
Section 297 of the Act provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to —
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may —
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
…
In light of these provisions, the Court may only grant leave to appeal in the present matter if the exclusion of the evidence will eliminate or substantially weaken the prosecution case; and only if the Court is satisfied that ‘it is in the interests of justice to do so’, having regard to whether the determination of the appeal against the interlocutory decision may resolve an issue of law or evidence necessary for the proper conduct of the trial (or having regard to ‘any other matter the court considers relevant’[8]). Clearly, by making separate provision in s 295(3)(a) for interlocutory decisions concerned with the admissibility of evidence, the legislature intended that decisions of that kind be treated as a ‘special category’ for the purposes of interlocutory appeals.[9] It was necessary for there to be a threshold test before evidentiary questions could be the subject of an interlocutory appeal lest this Court be inundated with applications for leave to appeal ‘regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials’.[10]
[8]DG, 130 [19].
[9]CGL v DPP (No 2) (2010) 24 VR 482, 483 [4] (Maxwell P, Buchanan and Bongiorno JJA) (‘CGL’).
[10]Ibid 483 [5].
At the risk of some repetition, it is timely to recall the observations made by this Court in DG[11] (itself an application for leave to appeal interlocutory decisions concerned with the admissibility of DNA evidence):
[11]DG, 132–3 [29]–[35] (citation omitted; emphasis added).
The introduction of interlocutory appeals in criminal matters represents a radical departure from well-established, and authoritative, doctrine. The High Court has repeatedly spoken about the undesirability of ‘fragmentation’ of the criminal process. Interlocutory appeals involve just such ‘fragmentation’. The legislature in this State has taken the view that this is a price worth paying.
There are, no doubt, cases where such ‘fragmentation’ can be justified. A swift and dispositive ruling by this court on a point of law that is critical to a trial may render that trial unnecessary, or significantly reduce its length. …
At the same time, it must be borne in mind that the legislature has chosen not to confer a right of appeal in relation to interlocutory decisions in criminal trials. Rather, there are dual hurdles which must be overcome before this court will entertain an appeal against such decisions. First, there must be either certification, or a successful review against a refusal to certify. Secondly, the court itself must be satisfied that leave to appeal is warranted.
Rulings on points of evidence can be particularly problematic when viewed as suitable vehicles for interlocutory appeals. The legislature has itself recognised that fact. The criteria for certification in s 295 are different when it comes to rulings on evidence than they are in relation to other interlocutory decisions.
Evidentiary rulings are both commonplace, and numerous. They are routinely made in almost every trial conducted in this State. Many, if not most, such rulings are important. If a ruling is made in favour of the Crown, the prospects of conviction are enhanced. If the ruling goes against the Crown, those prospects are reduced.
There are real dangers if interlocutory appeals against rulings of that kind are too readily brought before this court. That is particularly so if those rulings turn, in part, upon matters of weight as assessed by a trial judge. These are qualitatively different from rulings on what might be termed ‘pure points of law’. There is also a difference between a challenge to legal admissibility, and a challenge based upon the exercise of judicial discretion. An appeal against a decision as to legal admissibility is likely to provide guidance of a more general nature than an appeal against the manner in which a trial judge has balanced the various factors relevant to the exercise of judicial discretion.
As we have said, the overarching principle which governs the giving of leave to appeal is ‘the interests of justice’. …
For the exclusion of evidence to substantially weaken the Crown case, it is not enough that the exclusion of evidence may ‘significantly’ weaken a Crown case, since in context, the use of the adverb ‘substantially’ connotes something more than ‘significantly’ — it bespeaks evidence which is of ‘major importance’, or, at least, ‘very important’ to the Crown case.[12]
[12]ZL v The Queen (2010) 208 A Crim R 325, 329 [20] (Nettle JA) (‘ZL’). See also Greg Taylor, Interlocutory Criminal Appeals in Australia (Lawbook Co, 2016), [4.20]–[4.40].
Finally, questions of admissibility on an interlocutory appeal are to be determined according to House[13] principles.[14] Thus, it is not enough that the judges of this Court consider that, if we had been the primary judge, we would have taken a different course. Rather, for leave to be given in this case, it would be necessary for the Director to establish that the judge had acted upon a wrong principle, had taken into account an irrelevant matter, had made a mistake as to the facts, had failed to take into account a material consideration, or had reached a result so unreasonable or plainly unjust that it may be inferred that an error had been made although the nature of the error might not be discoverable.[15]
[13]House v The King (1936) 55 CLR 499 (‘House’).
[14]Tuite, [33]; KJM v The Queen (2011) 33 VR 11, 12–13 [9]–[15] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); McCartney v The Queen (2012) 38 VR 1, 11–12 [46]–[51] (Maxwell P and Neave JA and Coghlan AJA).
[15]House, 504–5 (Dixon, Evatt and McTiernan JJ).
The alleged offending
The rape is said to have occurred on 10 February 2013. At that time, the respondent was aged 44 years, and the complainant, MA, was aged 32. It is alleged that the respondent raped MA by compelling MA to introduce his penis into the respondent’s mouth.
In brief summary, the available evidence suggests that on 9 February 2013, the respondent and MA were guests at a barbecue held at a house occupied by ‘LR’ in an eastern suburb of Melbourne. MA and his girlfriend, Ms ‘VL’, were the first guests to arrive (at about 1.00pm). They brought a doona and pillows because they intended to stay the night.
The barbecue went well into the night. At different times, perhaps ten people were in attendance, although fewer than that number ultimately stayed at the premises overnight. It seems that the attendees consumed a considerable quantity of alcohol. Given that fact, it is unsurprising that the judge was prompted to observe in the course of his ruling that the witnesses’ statements, and their committal evidence, indicated ‘a good deal of vagueness’ and ‘differences in the accounts of various witnesses of the events’.
At about 1.30am on 10 February 2013, MA’s girlfriend, Ms VL, had sex with MA’s brother, ‘MP’, in the bathroom of the house. When he discovered this, MA became violent. He had to be physically restrained by at least three men, including the respondent, ‘LR’ and ‘OJ’. The men had to sit on MA’s back to stop him from attacking his brother. During these events, MA broke a bone in his hand, which perhaps is an indication of the violence of the struggle. There was, the judge said, ‘a great deal of physical activity involved in attending to his restraint’. At one point, police attended the house, and told MA to go to bed and to ‘sleep it off’. Eventually, sometime between about 4.00am and 5.15am, MA was calmed down and put to bed in a spare bedroom. MA said that he heard noises consistent with the respondent and LR having sex in an adjoining room. He then fell asleep.
MA alleges that he later woke up feeling the blanket being pulled off him. The respondent pulled MA’s pants down and performed fellatio on him. MA was too drunk or shocked to say anything. He claimed that he must have then fallen asleep. When he again awoke, MA noticed that his underpants and tracksuit bottoms were pulled down around his ankles, that his singlet and t-shirt were off and that there was semen around his genital area.
At about 10.00am, MA told LR what had happened. He showed LR the black t-shirt that he had been wearing the night before, which appeared to have a straight line of semen on it.[16] Later, at about 2.00pm, MA visited Ms VL. He was upset and crying, and told her what the respondent had done to him.
[16]In a statement dated 6 November 2015, a forensic scientist, Ms Monica Van Wissen, reported that no semen was detected on the inside or outside surfaces of the t-shirt.
The next day, VL told Ms ‘SN’, who had been the last person to arrive at the barbecue, what the respondent had done to MA. At SN’s urging, MA made a complaint to police on 12 February at about 11.00am. At approximately 2.50pm, police attended MA’s address and seized various items of clothing, including the underpants he had been wearing on the night of the barbecue and when he left LR’s premises.
When interviewed by police on 13 May 2013, the respondent denied that he had sucked MA’s penis.
The DNA evidence
MA’s underpants, seized by police, were subjected to forensic analysis.
A forensic scientist, Ms Monica Van Wissen, employed in the Victoria Police Forensic Services Department, examined samples taken from the underpants and prepared reports dated 4 July 2013 (‘the first report’)[17] and 25 November 2013 (‘the second report’) setting out her findings concerning DNA.
[17]There were, in fact, two reports dated 4 July 2013. The ‘first report’ dealt with some of the same subject-matter as the other report of 4 July 2013, but was more detailed, in that it recorded DNA results for Ms VL and LR.
On 15 July 2015, another judge had conducted a Basha[18] inquiry concerning the DNA evidence. On the voir dire, Ms Van Wissen produced her statement dated 3 March 2015,[19] the reports and a bundle of her notes.
[18]R v Basha (1989) 39 A Crim R 337. See also Criminal Procedure Act 2009, s 198.
[19]Ms Van Wissen had made a subsequent statement, dated 6 November 2015, which ‘is to be read in conjunction with [her] statement issued for this case on the 3rd March, 2015’, which related to MA’s t-shirt. It recorded the fact that no semen was detected on the inside or outside surfaces of the t-shirt.
Ms Van Wissen’s statement contained the following:
Item 3: A pair of underpants in a bag …
No blood was detected on the underwear.
Using a high intensity light source there was possible biological material detected on the inside (centre) front and inside (centre) back panels of the underwear.
The inside front panel of the underwear was sampled for DNA analysis (sample 3-1). Towards the centre of this area, a section of the single layered material was excised. This sample tested positive to a test designed to detect human saliva, and was submitted for DNA analysis (sample 3-2).
The statement went on to record that DNA from three contributors — MA, the respondent and Ms VL — was found in sample 3-1. Sample 3-2 tested positive for human saliva, but only MA’s DNA was present.
Ms Van Wissen was then cross-examined by the respondent’s counsel on various topics, including the possible degradation of DNA; the ‘tape-lift’ method used to harvest DNA from the underwear prior to excising material for saliva testing (and its possible effects on her findings as to contributors); and changed methodology with respect to DNA testing (which had precipitated the production of the second report). Cross-examination about transference of DNA elicited that an action as simple as a handshake (particularly in hot weather if people are sweating), or the handling of a drink can or bottle, could cause transference.
In her evidence, Ms Van Wissen repeated that two samples had been taken from the underpants. The first sample, ‘3-1’, was a ‘sample from inside front panel of underwear’, obtained by a ‘tape-lift’. That sample rendered a mixed DNA profile with three contributors — MA, the respondent and Ms VL.
The second sample, ‘3-2’, was, as the contents of Ms Van Wissen’s second report makes clear, an excised sample of the fabric of the underpants from the area where the ‘tape-lift’ had been taken. The report states:[20]
[20]The word ‘excised’ was underlined in the original.
Item 3: A pair of underwear
No blood was detected on the underwear.
Using a high intensity light source there was possible biological material detected on the inside front, back and centre panels of the underwear.
An area was excised from the front panel of the underwear and tested positive to a test designed to detect human saliva. This sample was subjected to DNA (sample 3-2). Note: this sample was excised from the approximate area of sample 3-1 (a tape-lift of the inside, front surface). Given it was excised, and the item is single layered, the sample is of the inside and outside surface of the front panel.
This second sample tested positive for human saliva, and a full DNA profile for MA was obtained. Ms Van Wissen could not say, however, whose saliva it was. Indeed, apart from MA’s, no other person’s DNA was detected in the second sample.
Ms Van Wissen gave the following evidence in cross-examination:[21]
Yes, so 3-2 is a further test for saliva; is that right?---Yes … that is correct.
And the results are quite clear I think, in that [MA] is an assumed contributor, so that … it was positive for [MA], was it?---Yes … 3-1 was a tape-lift of a greater area of the inside front crotch area of the underpants; 3-2 was an excised sample of the fabric and as we know saliva can be absorbed into fabric and what we’re looking for is amylase, so that tested positive to amylase which is contained in saliva and we obtained a full DNA profile from [MA].
Okay, and [the respondent], [LR] and [Ms VL] are excluded as contributing saliva; is that correct?---Not necessarily from contributing saliva, … an explanation could be that the tape-lift is routinely done prior to the saliva testing, because … the tape-lift is attempting to remove any surface epithelial cells and epithelial cells is what contains the DNA. So … a thorough tape-lift was done of that area prior to the saliva testing and as the saliva is absorbed into the underwear it may not have epithelial cells there of the source of the saliva, so the DNA profile may not necessarily mean that that is the person which contributed the saliva, so I can’t attribute the source to the DNA in this situation.
So you can’t attribute it to [MA]?---No, because it would be an explanation maybe that … being [MA’s] underwear, … and seeing the DNA profile, he’s contributed quite a large amount of DNA to that area, so it makes sense that some of his DNA may still be remaining on the underwear after the tape-lift, but the two other contributors, if … the two other individuals … have in fact contributed, they were in quite low levels, so … all of their DNA via epithelial cell removal may have been removed during the tape-lift, and the DNA sample which is 3-2 … tested positive to amylase only, which is absorbed into the fabric and [MA’s] DNA may have still been remaining with some [epithelial cells there and] it could be any of those contributors to sample 3-1, so I can’t say whose saliva it is.
[21]Emphasis added.
With respect to statistical probabilities relating to the first sample, 3-1, in her second report Ms Van Wissen recorded the statistical weighting for the respondent was ‘1.8 million (in favour of Hp)’,[22] which is the ‘verbal equivalent’ of ‘extremely strong support’; and the statistical weighting for Ms VL was ‘680 thousand (in favour of Hp)’, the equivalent of only ‘very strong support’.[23]
[22]‘Hp’ is shorthand for ‘prosecution hypothesis’, and ‘Hd’ for ‘defence hypothesis’.
[23]Although nothing turns on it, in her first report she had recorded the respondent as having a statistical weighting of ‘3.3 million in favour of Hp’, still the equivalent of ‘extremely strong support’; but Ms VL was recorded as ‘1.9 million in favour of Hp’, which is the equivalent of ‘extremely strong support’.
No testing for semen on the underpants took place.[24]
[24]See also fn 16 above.
In summary, so far as it bears on the issues in the present application, Ms Van Wissen’s evidence is capable of establishing the following:
· first, the first sample obtained by tape- lift from inside the front panel of MA’s underwear contained DNA from three contributors;
· secondly, that first sample contained DNA from MA; there was extremely strong support that it contained DNA from the respondent; and there was very strong support that it contained DNA from MA’s girlfriend, Ms VL;
· thirdly, the second sample contained both saliva and MA’s DNA, but it could not be determined whose saliva it was;
· the absence of the respondent’s and Ms VL’s DNA in the second sample does not necessarily establish that it was not their saliva, since epithelial cells containing DNA can be removed in the course of the ‘tape lift’; and
· transference of DNA is possible via simple means.
The interlocutory decision
Invoking both s 135 and s 137 of the Evidence Act 2008 (‘Evidence Act’), the respondent’s counsel sought exclusion of DNA evidence resulting from the seizure of MA’s underpants and their forensic testing. He submitted that the DNA evidence had limited probative value. The judge agreed. In the course of the ruling which the Director seeks to impugn, the judge said:[25]
[25]Emphasis added.
Probative value is said to mean the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
In my opinion, the amount of activity over many hours together at a barbecue that included quite an amount of drinking and, no doubt, food, utensils and other objects being passed around amongst a relatively small group of people is relevant to assessing the DNA evidence in the circumstances of this case. In addition, the obviously very forceful struggle involving three men, including the [respondent] being required to hold [MA] down must necessarily have involved a high degree of risk of likely transference of DNA.
This leaves aside the inevitable greetings that pass between people at a barbecue and what even a simply [sic] handshake can do in terms of transference of DNA, particularly in hot conditions where people are likely to be sweating. I note the time of the year involved and while I have no evidence about the weather it is clearly the height of summer in Melbourne.
If evidence is admissible then clearly it is a matter for a jury to assess the weight to be given to it if any. However, an assessment of probative value does require me to make some assessment of the weight that a jury could, acting reasonably, give to that evidence. I am obliged to assess what probative value the jury could assign to the evidence against which must be balanced the risk that the jury will give the evidence disproportionate weight. I must accept that the evidence is truthful, but it must still be assessed in the way I have described.
A number of matters traversed in cross-examination together with the written documents do raise issues with respect to such an analysis of just how probative this DNA evidence really is.
In the end in my opinion the DNA evidence does have probative value, but it is quite limited.
What is then required is the balancing exercise between the probative value and whether it is outweighed by the danger of unfair prejudice to the [respondent]. This involves a need to assess amongst other things the risk that notwithstanding appropriate warnings the jury may attach greater weight to the evidence than it should receive. I need to assess the risk notwithstanding appropriate jury directions and warnings.
The onus is on the [respondent] to satisfy the court that the probative value is outweighed by the danger of unfair prejudice. In my view that onus has been discharged.
I am satisfied that in all the circumstances of this case there is a real risk this evidence will be misused in some unfair way. There is a danger the jury may misjudge the weight to be given to it or engage in an illegitimate form or reasoning.
Section 137 is mandatory and in all the circumstances it compels me to refuse to admit the DNA evidence.
It is not really necessary to discuss s 135 at length and its discretionary language. Less there is any doubt about the matter though, absent s 137 and its mandatory terms, I would have refused to admit the DNA evidence pursuant to s 135. In my view the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the [respondent] as well as being to an extent misleading and confusing to a jury.
As we have mentioned, when requested by the prosecutor to do so, the judge refused to certify under s 295(3)(a) of the CPA that the evidence ‘would eliminate or substantially weaken the prosecution case’. In part, he observed:
On all the evidence in this case, I am not satisfied that the DNA evidence with its limited probative value is of such importance that its exclusion substantially weakens the Crown case. It is not enough that the exclusion of the evidence may significantly weaken the Crown case. In this context ‘substantially’ means more than ‘significantly’. As I said, I am not satisfied the exclusion of the DNA substantially weakens the Crown case. Having considered all the matters put in submissions and the authorities, I dismiss the application for a certificate.
The grounds of the applications
The ‘grounds’ in the notice of application for review of the refusal to certify are set out in narrative form, and are both unnecessarily elaborate and undesirably discursive. They are as follows:
1. His Honour applied the wrong test to the application for certification in that he did not apply the test of ‘eliminating or substantially weakening the prosecution case’ in that His Honour failed to correctly compare the DNA evidence in question to the rest of the case and estimate what proportion of the prosecution case it represented.
2. His Honour was required to conclude in his refusal to certify that the prospect that the rejected argument was without merit or was attended by sufficient doubt. During submissions both the bench and defence counsel conceded that the evidence did have some probative value albeit that probative force was outweighed by unfair prejudice.
3. Whilst the refusal to certify is an exercise of the trial judge’s discretion, the prosecution submit that the DNA evidence in the prosecution trial, which is significant evidence in every sexual assault trial, will rationally affect the assessment of the probability of a fact in issue, namely whether it was the [respondent] who sexually assaulted the complainant in circumstances where the defence relied upon is one of a complete denial of any sexual activity between the [respondent] and the complainant.
4. In this instance the DNA evidence available to the prosecution is extracted from the front panel of the complainant’s underwear via a tape lift procedure. The testing showed a mixture of three contributors. Those three contributors are the complainant (as an assumed contributor), the [respondent] (3.3 billion in favour of the [respondent] as a contributor) and the complainant’s girlfriend (680 thousand in favour of the girlfriend as a contributor). The statistical weighting of 3.3 billion provides extremely strong support for the proposition that the [respondent] is a contributor to the sample. For the statistical weighting to be considered ‘neutral’, the likelihood ratio would have to be 1.
5. There was a further test performed, given the allegations of the complainant of fellatio being performed, for the presence of saliva. This test returned a positive result simply for the presence of saliva. It cannot be determined whose saliva it is but can be assumed that it is the saliva of one of the contributors to the DNA results. There are no other contributors to the sample, in fact other reference samples were excluded. There are no unknown contributors to this sample. It is this evidence that is both corroborative and central to the prosecution case.
6. His Honour relied upon the fact that there is complaint evidence available to the prosecution from a witness, [LR], that corroborates the complainant’s account to make his finding that removal of the impugned evidence did not substantially weaken the prosecution case. The facts of the trial are that whilst there is what can be termed as ‘recent complaint’, the complaint statement to police by [LR] was made in September 2013, some 7 months after the event. Further, [LR] told the police in his statement that the complainant had shown him a t-shirt with semen on it on the morning of 10th February 2013 but the complainant did not inform the police of this. That this had occurred was put to him during cross examination at the committal hearing (2½ years after the date of the alleged offending) and he said that he ‘may have shown him a t-shirt with semen on it’ but ‘he didn’t remember doing that’. The t-shirt has not been located and was not available for testing.
7. The other complaint evidence available to the prosecution is the evidence of the complainant’s then girlfriend, [Ms VL], who the complainant sees some 12 hours after the event and does not make his complaint to her until after it is obvious that their relationship has ended. The complainant then spends a further two days undecided about whether or not to report the alleged sexual offending by the [respondent] to the police.
8. Both these witnesses, that is [LR] and [Ms VL], while providing a degree of corroboration of the complainant’s account, will be open to attacks upon their credibility. The absence of the DNA evidence will render this a word on word case in circumstances where independent evidence is available to corroborate the complainant’s allegations. In the absence of the DNA evidence, careful consideration will need to be given as to whether there is a reasonable prospect of conviction. It may be that the trial may not be able to proceed.
9. The DNA evidence available needs no further interpretation for jury purposes. The results of the testing are unequivocal. There is nothing misleading or apt to cause confusion. How the evidence is to be argued against the facts that evolve during the trial is a matter for counsel and ultimately for the jury, properly directed by the trial judge. The question of transference of DNA is a question of fact for the jury.
10. For the prosecution to proceed with the trial hearing in the absence of corroborative independent forensic material is to substantially weaken if not eliminate the prosecution case.
The grounds of appeal are that the trial judge:
1. … wrongly determined that the DNA evidence was of ‘slight probative weight’ to the detriment of the prosecution;
2. … wrongly applied a test of simple ‘prejudice’ rather than ‘unfair prejudice’ to the benefit of the [respondent];
3. … wrongly determined questions of fact in the prosecution brief of evidence that are properly within the province of the fact finding role of the jury in the trial;
4. … wrongly determined that the DNA evidence available in the trial was capable of being confused and accorded prejudicial weight by the jury in their determining of the facts; and
5. … wrongly determined that a jury could not be given directions by the trial judge, following the close of all the prosecution evidence in the trial, as to how the evidence may be properly used in their deliberations.
The Director’s submissions
We note at the outset, that counsel for the Director conceded the following matters in the course of oral submissions: first, that House principles apply to the judge’s refusal to certify, and that the application of those principles imposed a ‘high hurdle’ upon the Director; secondly, that the trial of the applicant will proceed notwithstanding the exclusion of the evidence concerning the DNA and saliva; and, thirdly, without the excluded evidence, there remains ‘a reasonable prospect of conviction’.
In written submissions — adopted by counsel in oral argument — it was submitted by counsel for the Director that the judge gave insufficient reasons for refusing certification. He did not, so it was submitted, provide any analysis of why the exclusion of the evidence would not eliminate or substantially weaken the prosecution case, save to say that the prosecution still had complaint evidence available. It was in the interests of justice to grant leave to appeal so as to resolve an issue of law or evidence necessary for the proper conduct of the trial.
Counsel submitted that the impugned ruling fundamentally affects the manner in which the prosecution will be able to conduct its case. It was contended that ‘a jury will, by necessity, be told that the complainant has made these allegations but despite what he alleged happened in 2013, some [three] years ago, no forensic testing was performed upon his body or clothing at the time’. (We pause to observe that, why any jury would have to be told this is not clear to us.) And with a somewhat overwrought flourish, it was submitted that the ruling ‘will have far reaching impact on the admissibility of expert evidence in relation to DNA testing in all sexual assault matters in the State of Victoria’, since it suggests that ‘where there is a possibility of transfer on the facts … such evidence is limited as to its probative value and is unfairly prejudicial to the accused’. It was argued that to ‘suggest that any complainant at a social gathering or that has had contact with other people within hours of an alleged incident can no longer rely upon forensic testing as being a source of evidence in any trial as the possibility of transfer makes such evidence prejudicial makes a mockery of what accused have been arguing before juries at trial for decades’. (We pause again to express our doubt that the judge’s ruling has such far-reaching ramifications.)
It was submitted that, in light of the fact that the DNA extracted from the front inside panel of the complainant’s underwear was a mixture from three contributors, although it cannot be determined whose saliva was also found, it may be assumed that it is the saliva of one of those three contributors. This evidence supports MA’s evidence, and could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. The DNA evidence provides independent support for the proposition that the respondent performed fellatio upon MA.
Further, it was contended that the issue of DNA transference ‘is a standard defence in trials in the State of Victoria’ and a jury is properly equipped to deal with the issue. To determine that a possibility of transference provides an alternative explanation inconsistent with guilt, and is therefore a ground for the exclusion of DNA evidence is, it was submitted, ‘to eradicate this accepted form of scientific evidence from being available at future trials where there may or may not have been occasion for contact between the parties immediately prior to the alleged sexual assault’.
Finally, it was submitted that that the DNA evidence is not misleading or confusing such that a jury might misuse the evidence. The proper use of the evidence will be assisted by judicial direction.
The respondent’s submissions
By written submissions, the respondent submitted that, once the judge determined that he was not satisfied that his exclusion of the DNA evidence substantially weakened the prosecution case, he was required to refuse certification. In any event, so it was submitted, the application for review should fail because the interlocutory decision ‘is not attended by sufficient doubt’.
It was submitted that it was open to the judge to find that the DNA evidence was of limited probative value. The capacity of the evidence to support MA’s evidence that the respondent had committed the charged offence was undermined in two ways. First, a hypothesis of innocent transfer was supported by ‘cogent and undisputed evidence’, including that on the night of the alleged offence, the respondent had forcibly struggled with MA to restrain him after MA became enraged by his discovery that his girlfriend was having sex with his brother. Secondly, subsequent DNA testing of saliva extracted from biological material in which the respondent’s DNA profile was previously found to be represented (‘the saliva testing) excluded the respondent as a contributor of DNA in the extracted saliva.
Given these matters, the respondent’s counsel submitted that the trial judge was correct to consider that it would not be open to a jury to find that the DNA evidence proved that the respondent’s saliva had been present on MA’s penis. Further, the jury could not easily dismiss the possibility of innocent transfer. So viewed, the DNA evidence did little if nothing to advance the prosecution case.
Moreover, the respondent’s counsel submitted that it was open to the trial judge to conclude that admission of the evidence would create a danger of unfair prejudice to the respondent. The trial judge correctly equated this danger with the risk that the jury would give disproportionate weight to the evidence. There was a real likelihood, it was submitted, that the jury would see the DNA evidence as lending significant support to MA’s evidence that the respondent had committed the charged offence. But as a matter of logic it could not do so. A jury would have no way of evaluating in a meaningful way the relative probability of the competing hypotheses of innocent transfer on the one hand, and the commission of the charged offence, on the other. The difficulty of the task was increased by the subsequent DNA testing of the saliva extracted from the original sample. It was contended that, as a result of the saliva testing results, a jury would have to factor into their evaluation the probability of the prosecution’s hypothesis that absence of the respondent’s DNA from the saliva sample had resulted from the ‘tape lift’ process during the original testing that thereby removed, by chance, all saliva originating from the respondent.
Furthermore, the respondent submitted that it was also open to the trial judge to conclude that the probative value of the evidence was substantially outweighed by a danger that the evidence might be misleading and confusing.
Finally, it was submitted that, in considering whether the evidence ought to be excluded under s 135 or s 137 of the Evidence Act 2008, it was open for the trial judge to find ‘that no directions would vitiate the risk of prejudice or confusion, as the case may be’.
Analysis
Section 135 of the Evidence Act imparts a discretion to a trial judge to ‘refuse to admit evidence’ if, among other things, its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party or might be misleading or confusing. On the other hand, there is no element of discretion accompanying the judicial exercise contemplated in s 137. Section 137 ‘is expressed in terms of an evaluative judgment mandating exclusion’.[26] Thus, in a criminal proceeding, a trial judge must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.
[26]IMM v The Queen (2016) 330 ALR 382, 385–6 [16] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).
The Dictionary to the Evidence Act defines ‘probative value’ to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue‘. Any assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[27] And although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[28] s 137 — which simply requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused — does not spell out the requisite probative value. In providing that probative value is to be weighed against the danger of unfair prejudice, however, s 137 does require that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[29]
[27]Ibid 391 [44].
[28]Sections 97 and 98, which deal respectively with tendency evidence and coincidence evidence, require the evidence to have ‘significant’ probative value.
[29]IMM, 391 [47].
Except as otherwise provided by the Evidence Act, relevant evidence is admissible.[30] Relevant evidence ‘is 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’.[31]
[30]Section 56(1).
[31]Section 55(1).
The principal fact in issue in this case is whether the respondent introduced MA’s penis into his mouth. Hence, the first relevant inquiry with respect to the evidence of each forensic sample is: were the evidence accepted, could it — either directly or indirectly — rationally affect the assessment of the probability of penile-oral penetration having occurred?
Taken at its highest, the evidence of the results of the first sample (3-1) from MA’s underpants is capable of establishing no more than that the respondent’s DNA was found in a mixture containing DNA from MA and Ms VL. It is significant that DNA from Ms VL made up part of the mixture, since no sexual activity is said to have occurred between MA and his girlfriend at any time relevant. Hence, on the current state of the evidence, the only available inference is that her DNA must thus have been deposited in MA’s underpants in a manner unrelated to sexual activity. Given the presence of the respondent’s DNA inside the underpants concurrently with that of Ms VL, it would not be open to a jury to conclude that the respondent’s DNA had been placed on (or in the vicinity) of MA’s penis as an incident of fellatio, and then transferred to the inside of his underpants when he pulled them up in the morning.
Properly evaluated, the evidence of the presence of the respondent’s DNA in the underpants can establish no more than that MA had come into contact with the respondent, or with some other person or object that had come into contact with the respondent. Of course, the presence of the respondent’s DNA inside the underpants might be explicable by transference to MA’s genital region during or after oral sex (and thereafter to the underpants); but, in the circumstances of this case, any conclusion to that effect would be wholly speculative. Indeed, given the presence of Ms VL’s DNA in the sample, it would not be open safely to conclude other than that the presence of the respondent’s DNA may be attributable to transference in the course of other activities during the events at LR’s house. Thus the evidence from the first sample had no — or, at best, very little — probative value.
With respect to the human saliva found in the second sample, it might provide limited support for MA’s account of fellatio. In circumstances where the only DNA detected in the sample — which was removed from an area where the first sample had rendered a mixture of three sets of DNA — was that of MA, however, it would be somewhat speculative to conclude that it was the respondent’s saliva. Thus, the evidence from the second sample had some — but very limited — probative value.
The foregoing conclusions are reached against a background in which there is surprisingly little authority concerning the admissibility of DNA evidence when the evidence raises the risk of secondary transference. It is necessary to turn to such authority as exists.
DNA cases
In Joyce,[32] the accused had been charged with two sexual offences. The prosecution alleged that the offences occurred at the accused’s residence when the complainant and another youth were sleeping there. At trial, it was common ground that forensic examination disclosed the presence of some DNA material compatible with that of the accused on the complainant’s underpants, shorts and shirt. Importantly, it was also common ground that the presence of the DNA could be explained by a process of secondary transfer, by the complainant’s clothing having come into contact with furniture, floor or carpets in the accused’s home, thereby attracting the accused’s DNA which was likely to be present at his premises. Secondary transfer may also have taken place where one garment containing DNA came into contact with another. The trial judge, Angel J, excluded the DNA evidence on the basis that the results were open to competing hypotheses, one inculpatory the other exculpatory, neither of which could be preferred to the other on any scientific basis in evidence.[33] His Honour concluded that ‘the prejudicial effect of the DNA evidence would outweigh any probative value, even if admissible as circumstantial evidence’.[34]
[32]R v Joyce (2002) 173 FLR 322 (Angel J).
[33]Ibid 324 [5] and [8]. His Honour cited R v Juric (2002) 4 VR 411. In that case, the Court of Appeal (Winneke P, Charles and Chernov JJA) found that certain DNA evidence should have been excluded by the trial judge in a trial for murder because the jury could not, on the basis of the material put before them, properly and reasonably evaluate the differing and conflicting opinions expressed and make a responsible determination as to which of them was to be preferred (at 425–7 [18]–[20]). The case did not turn on the issue of secondary transfer.
[34]Citing R v Swaffield (1998) 192 CLR 159; R v Lucas [1992] 2 VR 109; R v Percerep [1993] 2 VR 109; R v Van Hung Tran (1990) 50 A Crim R 233; cf R v Jarrett (1994) 62 SASR 443. See also R v Stokes [2000] NTSC 12, [12]–[14] (Mildren J).
GZ[35] is a more recent case in which a trial judge ruled DNA evidence to be inadmissible under s 137 of the Evidence Act 2011 (ACT). The accused was charged with two counts of sexual intercourse with a child under the age of 10 years, based on allegations that the accused licked the complainant’s genital area. Relying on s 137 of the Act, the accused raised an objection to DNA evidence that the prosecution intended to lead on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice. The evidence showed that the complainant had spent time with the accused at his house, in circumstances where there was no dispute that there was ongoing physical contact between the complainant and the accused. As the trial judge observed, it was not a case where the complainant and the accused were unknown to each other such that DNA evidence may have provided very significant probative evidence as to the identity of an offender or evidence that a particular offence occurred.[36] When the complainant returned home after spending time at the accused’s house, she took off her clothes, including a pair of tights — which she had worn as her outer clothing — and her underwear. She left them intertwined overnight on her bedroom floor. The next day, the complainant’s mother placed the tights and underwear in a paper bag, raising the possibility of contamination of the underwear with DNA from the outer clothing worn by the complainant. 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 a process of secondary transference. Pursuant to s 137, Burns J ruled the DNA evidence to be inadmissible, since no expert testimony would enable the jury to determine whether it was more likely that the DNA came to be on the complainant’s underwear by a process of secondary transference as alleged by the prosecution, or by a process of secondary transference by contamination.[37]
[35]R v GZ [2015] ACTSC 229 (Burns J).
[36]Ibid [5].
[37]Ibid [7]–[9].
Although of little assistance in the resolution of the instant case, Gardin[38] is another example of a case involving DNA and saliva in the underpants of a complainant in a case of sexual offending. In a summary trial in the Children’s Court it was alleged that the appellant approached the complainant on three occasions as she slept, inserting his fingers into her vagina on two occasions and licking the area of her crotch on another occasion. The principal fact in issue was whether the activities alleged had occurred. There was a mixture of DNA located on the outside crotch of the complainant’s underpants. The prosecution case was that this was very much more likely to be a mixture of the complainant’s and the appellant’s DNA than a mixture of the complainant’s and someone else’s DNA. A deal of effort was directed towards establishing that there were innocent means by which the appellant’s DNA could have been transferred to this area of the complainant’s underpants. Ultimately, the magistrate accepted this to be the case — in circumstances where the complainant and the accused had lived together for nine days, shared towels, and had been photographed with their grandmother and others on the bed together — a finding that was not controverted on the appeal.
[38]Western Australia v Gardin (2015) 48 WAR 494 (Mitchell J).
Finally, we should mention the decision of the NSW Court of Criminal Appeal in Ali,[39] a case cited by neither party. In that case, the respondent was charged with sexual offences relating to the digital-vaginal penetration of a girl aged seven years. The trial judge excluded DNA evidence relating to the presence of two male DNA profiles on the complainant’s underpants — one of which was consistent with that of the respondent — and also excluded evidence relating to an area of staining, consistent with blood, on the interior crotch of the underpants and on the exterior hip. The Director of Public Prosecutions brought an interlocutory appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which provides that the Director ‘may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case’.
[39]R v Ali [2015] NSWCCA 72 (Hoeben CJ at CL, Adams and R A Hulme JJ) (‘Ali’).
At trial, the prosecution case was that the respondent had digitally penetrated the seven year old female complainant. In very short compass, DNA analysis of the complainant’s shorts found a DNA a mixture that originated from at least three male individuals, the major component matching the DNA profile of the respondent. In the crotch of the underpants, male DNA was recovered which was a mixture that originated from more than one individual, the major component again matching the DNA profile of the respondent. Further, a forensic expert gave evidence that a stain on the left hip of the underpants was definitely blood. In relation to a stain on the interior crotch, a screening test was presumptively positive for blood; and because the DNA located there was from a very strong source, it was the expert’s conclusion that the stain was most likely blood from the complainant. The trial judge excluded the evidence because of problems of continuity, possible contamination or secondary transference.
On appeal, Hoeben CJ at CL (with whom Adams and R A Hulme JJ agreed), was of the view that while there were difficulties with the chain of possession, and there was a possibility of contamination, those difficulties ‘were issues which were quite capable of being explained to the jury and understood by them’.[40] His Honour concluded that s 137 of the Evidence Act 1995 (NSW) ‘does not bar’ the admissibility of the DNA evidence.[41] He said that it was open to a jury, acting reasonably, to use the DNA evidence in assessing whether the respondent committed the offences with which he was charged. The capacity of the evidence to establish that issue, as distinct from the weight likely to be given to it, was substantial. Accordingly, the evidence had significant probative value.[42] His Honour expressed the view that ‘unfair prejudice is unlikely to arise given the relatively simple issues confronting the jury as to continuity, contamination and the possibility of secondary transfer’. He said that to ‘the extent that there is such a risk, it can be adequately dealt with by appropriate directions’. Finally, his Honour said that the ‘issue of whether too much weight might be given to such DNA evidence can be adequately cured by appropriate directions depending upon the nature of the evidence’.[43]
[40]Ibid [48]–[49], citing R v Shamouil (2006) 66 NSWLR 228, [60], [64] (Spigelman CJ).
[41]Ali, [50].
[42]Ibid.
[43]Ibid [51]–[53].
We are of the view, however, that Ali provides little assistance in resolving the present case. Ali was, we think, a case which turned on its particular facts. And it seems to us that, beyond asserting that the issues as to continuity, contamination and the possibility of secondary transfer confronting the jury are ‘relatively simple’, and that the evidence of the accused’s DNA being in the complainant’s underwear was not ‘manifestly unreliable’ such that a jury would attach more weight to it than it deserved, the reasons contain little analysis of why it was determined that the danger of unfair prejudice did not outweigh the probative value of the evidence.
For the sake of completeness, we note that the High Court dealt with the possibility of the transference of DNA in Fitzgerald,[44] which, although not concerned with the admissibility of DNA evidence, is nonetheless instructive. In that case, a group of men forced their way into a house and, using weapons including a gardening fork and a pole, attacked two men, the first of whom died four days later, and the second of whom sustained serious brain injuries. The appellant was convicted by a jury of one count of murder and a second count of causing serious harm. It was the prosecution case that a co-accused and the appellant were members of the group that forced entry into a house and that each member of the group was a party to a common plan to cause grievous bodily harm to persons inside the house. The real issue in the trial was the sufficiency of the evidence to establish that the appellant was one of the group. To establish that fact, the prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene.
[44]Fitzgerald v The Queen (2014) 311 ALR 158 (Hayne, Crennan, Kiefel, Bell and Gageler JJ).
A forensic expert gave evidence explaining the differences between ‘primary’ and ‘secondary’ DNA transfer. Primary transfer occurs as a result of direct contact between a particular person and an object; and a secondary transfer occurs when contact or trace DNA is transferred onto an object by an intermediary as a result, for example, of a handshake. The expert also stated that a secondary transfer of DNA remains possible a few hours after contact between a person and an intermediary, and that an intermediary’s DNA is not necessarily transferred at the same time, although she was only aware of one example of this in the relevant literature. She accepted the possibility that the appellant’s DNA in a sample taken from a didgeridoo was the result of a secondary transfer.
In holding the convictions in effect to be unsafe and unsatisfactory, the Court found that the prosecution’s main contention — that the appellant’s DNA on the didgeridoo derived from the appellant’s blood — was not made out beyond reasonable doubt. A secondary transfer of contact or trace DNA was possible, and on the evidence there were at least two distinct occasions on which a secondary transfer of the appellant’s DNA to the didgeridoo may have occurred. Since the recovery of the appellant’s DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack, so that the jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt. Alternative hypotheses consistent with the appellant’s innocence were not unreasonable and the prosecution had not successfully excluded them.[45]
[45]Ibid 165 [36].
Discussion
Determining whether a piece of evidence has the capacity to ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ involves an exercise in logic. As we have said, taken at its highest, the evidence of the results of the first sample from MA’s underpants is capable of establishing no more than that the respondent’s DNA was found in a mixture containing DNA from MA and Ms VL. There has been no attempt by the prosecution adequately to explain how Ms VL’s DNA could have been deposited in MA’s underpants in an ‘innocent’ fashion, whilst at the same time being capable of rationally asserting that the respondent’s DNA in the same mixture bespeaks guilt. As we have endeavoured to convey, it is significant that Ms VL’s DNA makes up the mixture, since no sexual (or other relevant) activity is said to be potentially responsible for its presence. Thus, on the present state of the evidence, the only available inference is that Ms VL’s DNA must thus have been deposited in MA’s underpants in a manner unrelated to sexual activity. So much underscores the danger of unfair prejudice if the DNA evidence is left to the jury. Given the presence of Ms VL’s DNA inside the underpants concurrently with the respondent’s, a jury could not properly conclude that the respondent’s DNA had been placed on or near MA’s penis by an act of fellatio, and thereafter transferred to the inside of his underpants. To do so would involve no more than guesswork.
As we have said, when the DNA evidence is properly evaluated, the presence of the respondent’s DNA in the underpants can establish no more than that MA had come into contact with the respondent, or with some other person or object that had come into contact with the respondent. It may be that the presence of respondent’s DNA inside the underpants is explicable by transference connected with oral sex, but, at the risk of repetition, in our view to attempt to draw an inference to that effect would be wholly speculative. The presence of Ms VL’s DNA in the mixture means that it would not be open safely to hypothesise other than that the presence of the respondent’s DNA may have been attributable to transference in the course of other activities during the events at LR’s house. Thus, as we have said, the evidence from the first sample has no (or very little) probative value.
Moreover, one of the dangers associated with DNA evidence, is what has come to be 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 descriptions of DNA findings.[46] 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 directions 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.
[46]Jenny Wise, in Providing the CSI Treatment: Criminal Justice Practitioners and the CSI Effect, (2010) 21 Current Issues in Criminal Justice 383, 384, described the effect as follows:
As the name suggests, the CSI Effect relates to the popularity of the American television program: CSI. CBS screened its first season of CSI in 2000. In its second season, CSI was rated as the second most popular television program in America, and has since remained one of the most popular programs of the decade (Cole and Dioso-Villa 2007). The show follows a number of detectives and forensic scientists as they solve serious crimes. One of the main features of the show is its regular use of forensic science accurately to identify offenders. Science is portrayed as the overarching truth that exposes the lies of the offender and provides certainty to an investigation. The popularity of this type of show led to the creation of other similar television programs such as Law and Order SVU: Special Victims Unit, NCIS: Naval Criminal Investigation Service, and Criminal Minds.
With respect to the evidence of the finding of saliva, the trial judge dealt with its admissibility under the same umbrella as the DNA evidence. That is understandable, in circumstances where the prosecution are apparently content to do the same. The prosecution’s assertion that, although it cannot be determined whose saliva it is, it can be assumed that it is the saliva of one of the contributors to the DNA results, reveals the danger of unfair prejudice associated with the evidence. It does not follow as a matter of logic that the absence of DNA in the sample of saliva must mean that the saliva came from one of the individuals whose DNA was found to be present in the other sample. But it is a seductive leap of logic that a jury is likely to make (particularly if the evidence of the finding of saliva is admitted concurrently with that of the DNA). In any event, if the DNA evidence falls to be excluded, there is simply no occasion to admit the evidence of saliva on the basis contemplated by the prosecution.
We are not satisfied that, in ruling as he did, the judge acted upon a wrong principle, took into account an irrelevant matter, mistook the facts, failed to take into account a material consideration, or reached a result so unreasonable or plainly unjust that it may be inferred that his decision was attended by undisclosed error.
Nor are we satisfied that the exclusion of the evidence will substantially weaken the Crown case. Without the DNA and saliva evidence, the core of the Crown case — that is, the direct evidence of the complainant of the offences as supported by evidence of recent complaint[47] — remains.[48]
[47]See Evidence Act 2008, s 66.
[48]See CGL, 485 [18] (Buchanan JA).
Conclusion
For the foregoing reasons, the application to review the judge’s refusal to certify must be refused.
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