Nelson v The Queen
[2016] VSCA 45
•24 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0236
| DOUGLAS NELSON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | OSBORN, WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 March 2016 |
| DATE OF JUDGMENT: | 24 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 45 |
| JUDGMENT APPEALED FROM: | [Nelson] v The Queen (Unreported, County Court of Victoria, Judge Hampel, 19 November 2015) |
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CRIMINAL LAW – Interlocutory appeal – Indictment charging applicant with rape more than 30 years ago – Application for permanent stay – Circumstantial case – Evidence – Evidence of matters not available – DNA evidence – Evidence of alleged admissions – Evidence of continuity of custody of samples tested for DNA – Quality of evidence capable of being given on the issue of continuity of custody of samples – Forensic disadvantage – Whether forensic disadvantage capable of remedy by appropriate warnings and directions to jury – Whether prosecution of applicant involved level of unfairness requiring permanent stay – No error in trial judge’s refusal to order stay – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Koutsantoni & Associates |
| For the Respondent | Mr G J C Silbert QC with Ms D Mandie | Mr J Cain, Solicitor for Public Prosecutions |
OSBORN JA
WHELAN JA
BEACH JA:
Introduction
In 1982, the complainant was abducted and raped, in the back of a car, by four men who were not known to her. Approximately 22 years later, a forensic sample was taken from the applicant pursuant to an order made under s 464ZF of the Crimes Act 1958. The sample was analysed and the results put into a DNA database. Some seven and a half years later, the applicant was connected to the complainant by a cold case match between samples obtained from the complainant back in 1982 and the applicant’s reference sample on the database.
The applicant now faces trial in the County Court on charges of abduction, false imprisonment, rape and aggravated rape in relation to the 1982 incident. The Crown case is that the applicant was the third of four co-accused who raped the complainant. Following the cold case match, a telephone intercept recorded calls to the applicant’s mobile phone. The Crown case is that in some of these calls the applicant referred to what occurred in relation to the incident, and made admissions about his participation in it. Additionally, the Crown relies upon a notebook belonging to the applicant that contains entries that are said to refer to the incident, and which are said to constitute further admissions by the applicant.
In November 2015, before a jury was empanelled on the applicant’s trial, the applicant applied to the trial judge for a permanent stay of the prosecution of the charges against him. Over a number of days in November, the judge heard evidence and submissions on the applicant’s stay application. On 19 November 2015, the judge ruled against the application for a stay, but certified, pursuant to s 295(3) of the Criminal Procedure Act 2009, that her decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
The applicant seeks leave to appeal the judge’s decision on the sole ground:
The learned trial judge erred in failing to stay the prosecution of the applicant on indictment D10880717.1.
The Crown case
The Crown case is that the complainant was abducted off a street, dragged into a car, taken to a carpark, and raped by the four male occupants of the car. They then drove off, leaving the complainant in the carpark. The complainant was found soon after and taken to a police station, and then on to a hospital where she was examined by an assistant police surgeon.
The complainant’s clothing was handed to police. Blood and other intimate samples were delivered to the Norman McCallum Police Forensic Science Laboratory in Spring Street, Melbourne on the following day. The clothing was delivered eight days later.
On 3 August 1983, CT, a scientific officer employed at the laboratory was given the task of examining the items that had been lodged eight months’ earlier. CT’s notes record that he plated out the blood and examined the intimate samples. The notes record that CT observed spermatozoa on the intimate samples. The notes also record that CT examined the complainant’s dress and observed ‘a few small reddish spots on the cuffs of the dress.’ Additionally, CT’s notes record that he conducted a Hemastix test, a presumptive test for blood. The Hemastix test recorded a positive result for the spots on both cuffs. Further, the notes record that CT performed an Ouchterlony test (a test to determine whether the presumed blood is human). The Ouchterlony test was recorded as giving a positive result.
A presumptive test for the presence of semen was performed on the complainant’s dress. The notes record that this test indicated the presence of seminal staining on the interior surface of the back panel.
On 28 October 1983, the complainant’s clothing was returned to the investigating police. A bag containing a slide with the plated out blood (this slide is said to be the slide referred to as item 6 in CT’s notes) and two AA cups containing pieces of fabric in a liquid were stored in a freezer at the laboratory (these two cups are said to be the vials labelled 9A and 9B referred to in CT’s notes; with item 9A said to contain material from the left cuff of the complainant’s dress, and item 9B material from the right cuff). Each of these items was labelled with the complainant’s name and the case number relating to the incident. Each of the two AA cups was labelled ‘B/S’ ie blood sample and further labelled ‘on LH cuff’ or ‘on RH cuff’.
In 1984, the freezer was transported to the new Police Forensic Science Facility at Macleod. In 2012, as part of what was described as the Cold Freezer Project, the items stored in the freezer were re-examined. By then, biological samples could be subjected to DNA testing — a technique not available in 1982 or 1983 in the police forensic laboratory.
The items retrieved from the freezer were subjected to DNA analysis. The plated out blood was treated as a reference sample for the complainant. As we have said, the AA cups bore labels indicating they were samples taken from the bloodstaining on the left and right cuffs of the complainant’s dress respectively. The complainant was identified as the sole source of the DNA in the left cuff sample. The right cuff sample was found to be a mixed sample, that is, the DNA of more than one person was present. When that sample was cross-referenced to the database containing the DNA of people who had, by court order been required to provide samples for the database, there was a match to the applicant’s DNA which was on the database.
A police investigation commenced. Telephone intercepts of the applicant’s phone revealed the applicant discussing the investigation and making what the Crown argued are direct and implied admissions of his involvement in an abduction and gang rape many years earlier. A search warrant was executed at the applicant’s home, and the notebook to which we have referred was found. Among other things the applicant is alleged to have said, the Crown contends that in the notebook the applicant admits to being one of four in the car; that he was not the ring leader; that he was only 17; that he did not have a car or licence at the time; and that he was the third to have sexual intercourse with the victim. The applicant’s description as to where he was sitting in the car are said by the Crown to be consistent, or could be seen to be consistent, with the complainant’s account of the incident, describing the applicant as the third assailant.
Following his arrest, a Magistrate ordered the applicant to provide a forensic sample. The forensic sample provided was compared to the sample labelled as the right cuff of the complainant’s dress.
Initially, the comparison was done using the Profiler Plus DNA proofing kit. A case manager within the biological examination branch of the Forensic Services Department at the Victoria Police Forensic Services Centre concluded that there were at least two contributors to the mixed sample. On the assumption that there were only two contributors, she calculated the likelihood ratio that the applicant was the source of the major component of the sample as one in one hundred billion. That is, it was one hundred billion times more likely that the DNA of the major contributor to the mixed profile was the applicant than another person selected at random from the Australian Caucasian population.
The right cuff sample was later re-tested using the PowerPlex 21 DNA profiling kit. The PP21 Kit is said to be a more sensitive test. The case manager interpreted the results of the PP21 test to reveal that there were at least three contributors to the sample from the labelled right cuff. She again calculated the likelihood ratio of the accused being the source of the major component as one in one hundred billion.
Testing using PP21 also revealed a partial match between the complainant’s DNA and a partial DNA profile obtained from the mixed sample. According to the case manager, the likelihood ratio of the complainant being a contributor was however only 2.8 — a statistically weak result. Put another way, this result was said to show that the complainant could not be excluded as a contributor to the right cuff sample.
The prosecution case against the applicant is based upon a combination of the DNA evidence to which we have referred and the conversations and notebook entries that are relied upon by the Crown as admissions. There is no other evidence against the applicant.
The bases of the stay application
In the stay application before the trial judge, the applicant identified seven bases upon which he sought a permanent stay. The judge summarised these bases as follows:
1)the loss of and subsequent inability to test the spermatozoa detected on the intimate samples taken from the complainant;
2) the loss of and subsequent inability to test the stains which had returned a positive result for human blood, and a presumptive positive for semen on the complainant's dress;
3)the absence of reliable evidence of the source of the material in the AA cups which was recorded or interpreted as coming from the left and right cuffs and subjected to the DNA testing to which I have referred;
4) the unacceptable risk of contamination of the samples said to be from the blood stains on the right cuff of the complainant's dress and which were matched with the accused's reference sample;
5) the weakness of the evidence of the partial match from the right cuff sample with the complainant's DNA;
6) the unacceptable risk the DNA evidence would be given undue prominence despite its flaws and weaknesses; and
7) the existence of an alternative non-inculpatory explanation for the spoken and written words relied on as admissions and the failure of the prosecution to investigate that alternative explanation.
At the hearing before this Court, counsel for the applicant accepted that the above seven matters were a full and accurate summary of the bases upon which the stay had been sought from the trial judge. That said, not all of these bases were pursued before us. In this Court, counsel for the applicant expressly abandoned the first and second bases, and concentrated her argument on the third and fourth matters set out above.
The judge’s ruling
In carefully expressed and detailed reasons, the judge first set out the background to the application and the bases upon which a permanent stay was sought by the applicant.
Next, the judge set out the principles that governed the application as follows:
The exercise of the power to stay must be exceptional because it results in effect in a refusal to exercise jurisdiction, and the primary responsibility for deciding whether criminal proceedings should be maintained lies with the executive and not the court.
The touchstone in safeguarding the interests of the accused in every case is fairness.
The test of fairness which must be applied involves a balancing process for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial.
What is required to justify a stay is not the possibility but the probability of unacceptable unfairness, that is, whether in all the circumstances the continuation of the proceedings could involve unacceptable injustice or unfairness, or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
The court would only be satisfied that the continuation of the proceedings constituted an abuse of process in an exceptional or extreme case.
In cases of delay, the critical factors are the proven or likely prejudice to the accused and the public interest in the prosecution of charges and conviction of the guilty of crimes. The length of the delay, the reason for it, and whether the accused has contributed to it or acquiesced in the delay are also relevant.
In cases concerning missing items of evidence, the accused must demonstrate that the absence of the evidence is likely to have a significant effect on his right to a fair trial. It is insufficient to demonstrate that the evidence, if available, might result in an acquittal on any charges. The effect of the missing evidence is not to be assessed in a vacuum or in isolation. It must be viewed in the context of the available evidence and in particular by considering whether in light of that evidence and the missing evidence, the trial of the accused would not be fair. This last passage is an adaptation of the propositions distilled by Kaye AJA, as he then was, with whom Neave JA and Lasry AJA agreed in Audsley v The Queen. In Audsley, the propositions were
stated from the perspective of post-conviction scrutiny, and I have counted them in prospective terms in order to apply it to pre-trial scrutiny.To justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
When an obstacle to a fair trial is encountered, the responsibility case on the trial judge to avoid unfairness to either party but particularly to the accused is burdensome. That responsibility is not discharged by refusing to exercise jurisdiction to hear and determine the issues, but by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
The existence and availability of these powers when considered in light of the necessarily limited scope of the power to grant a permanent stay serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective whether by reason of unfairness, injustice or otherwise as to demand the grant of a permanent stay.[2]
[2]Citations omitted.
Before us, both parties accepted that her Honour’s statement of the relevant principles was unimpeachable.
Having set out the relevant principles, the judge then proceeded to analyse the evidence. Her Honour undertook this task in considerable detail. Having performed this task, the judge then turned to the applicant’s arguments.
As to the loss of the opportunity to explore whether testing of the stains on the cuffs could or might provide exculpatory evidence for the applicant, the judge said:
It is clear that the accused had lost the opportunity to explore whether testing of the reddish-brown stains on the cuffs could or might provide exculpatory evidence.
Considering the combined effect of the loss of dress, the absence of direct evidence of the content of the AA cups, which when tested yielded DNA which matched that of the accused, I am not persuaded this is one of those exceptional or extreme cases where admission of this evidence would involve unacceptable injustice or unfairness to the accused.
I do not consider the accused has established the probability of unacceptable unfairness as a result. I am not persuaded that in all of the circumstance the continuation of the proceeding would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
As to the issue of continuity and the testing of the relevant samples, the judge said:
The challenges to the evidence to date in respect of continuity and the testing of these samples in the AA cups and on the cuffs of the dress, the exploration of the record keeping, recollections and expertise of the various witnesses called on the voir dire indicates that the defence has been well able to identify and highlight the matters it relies on as shortcomings and deficiencies in the evidence.
In the guiding principles, which I summarised earlier, there were stern injunctions to trial judges to grant a permanent stay only if satisfied that no other means is available to remedy the identified unfairness.
What was described as the burdensome responsibility to avoid unfairness to either party but particularly to the accused should the authorities say, be discharged if possible, not by refusing to exercise jurisdiction to hear or determine the issues but by controlling the procedures of the trial, by adjournments or other interlocutory orders, by rulings on evidence or directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
In my view the combination of steps taken to date, including the extensive exploration of the evidence on the voir dire, the provision by the prosecution of all the material sought by the defence, the carrying out of the additional tests requested by the defence, the making available of the prosecution witnesses including their experts to confer with the defence and their expert, and the provision of documentation such as the manuals and validation data concerning the DNA testing kits are illustrations of the use of interlocutory procedures able to be employed to counteract the prejudice which the accused might otherwise suffer.
In my view, these matters coupled with the capacity to give strong and careful directions as to potential disadvantage (particularly having seen the manner in which the disadvantages were explored in the extensive voir dire before me) will enable those competing public interests of ensuring that a trial is fair to the accused and the public interest in the prosecution of serious charges to be met.
As to the risk of possible contamination of the samples, the judge said:
The next matter raised was the unacceptable risk of contamination of the samples said to be from the bloodstains of the right cuff of the complainant's dress, and which were matched with the accused's reference sample. The finding of biological material matching the DNA of the accused on the cuff of the complainant's dress does not of course prove that he is guilty of the offences charged. A jury would have to exclude adventitious match or the possibility of contamination as reasonable possibilities for the presence of the DNA in that material, and that is assuming that it is prepared to find that the material in the AA cup came from the cuff of the dress.
That, the exclusion of the adventitious match or the possibility of contamination through some other possibilities, and the acceptance that the sample came from the identified source — is so in any case in which DNA said to be that of the accused connects him with the commission of an offence. No occasion where contamination could have occurred — such as the examination in the laboratory of biological samples from the accused before or at the same time as the examination of these samples by [CT] or the attendance by the accused at the casualty section of the Queen Victoria Hospital where the complainant was examined by [the assistant police surgeon] before or at the same time as [that doctor] conducting his examination - has been identified as a possibility by Mr van de Wiel.
Apart from the theoretical possibility of contamination by innocent contact between the accused and the complainant, or between cases where the accused may have left some of his own DNA which then found its way onto the right cuff of the complainant's dress, no occasions of potential contamination have been identified. It follows that no disadvantage flowing from the lapse of time between the events of 12 December 1982 and the present by reason of prospect of contamination has been identified. There is no greater risk of adventitious match or the theoretical possibility of contamination identified in this case than in the general run of cases where evidence of a DNA match is challenged. There is not something which alone or in combination with the other matters that I have already identified would justify the grant of a stay.
Finally, having analysed all of the applicant’s arguments, the judge concluded that there was nothing which would alone, or in combination with any other matters, justify a stay. Thus, the judge rejected the applicant’s application.
The applicant’s argument in this Court
The applicant’s written summary of contentions filed in this Court contained a section headed ‘Part B: Additional contentions sought to be relied upon’. Under this heading, the applicant sought to advance argument in this Court that was not made to the trial judge. This argument included complaints that the trial judge had failed to rule on evidentiary issues, relating to both the DNA evidence and the applicant’s alleged admissions, before determining the stay application.
In argument, the difficulty the applicant’s proposed written argument caused was raised with the applicant’s counsel. As it was put by Osborn JA:
At the moment for my own part it seems to me that gives rise to a jurisdictional problem. In other words it's not even a question of discretion. The only way you come here in relation to an interlocutory decision is if a judge either certifies or refuses to certify in relation to a ruling. You don’t come here pursuant to some general supervisory management discretion, although there may be cases where counsel having reflected on what happened below think that the exercise of that sort of discretion would expedite matters.
Now what that means at the moment it seems to me is that you can proceed with Part A of your summary of contentions which relates to the contentions which the judge dealt with, and indeed … you can proceed to attack the ruling that the judge made. But you can't go on to make suggestions about the admissibility of evidence which Her Honour didn’t rule on and which in fact weren’t the subject of the submissions you now wish to make.
The Court then heard further submissions from the applicant’s counsel as to the scope of her client’s application for leave to appeal, before then permitting the applicant’s counsel to advance argument consistently with the way the application for a stay was presented to the trial judge. Specifically, the Court did not permit the applicant to contend that the judge erred in failing to rule out any particular item of evidence. If the applicant wishes to seek the exclusion of any particular item of evidence relied upon by the Crown, that will be a matter for further application to the trial judge — not a matter that may properly be raised in the present application for leave to appeal, and in respect of which the trial judge has certified, as we have described, pursuant to s 295(3) of the Criminal Procedure Act 2009.
Having been confined to an argument that did not go outside the trial judge’s ruling, counsel for the applicant then proceeded to present to the Court a clear and concise argument as to why the prosecution against her client should be permanently stayed. Counsel for the applicant submitted that the case against her client depended upon an acceptance of the continuity evidence of the dress and item 9B (the AA cup said to contain the right cuff of the complainant’s dress). The applicant then noted that the evidence the Crown relies upon to support continuity consists of CT’s notes and case records; the fact that the case number and complainant’s name is written on relevant labels and in the notes; the evidence of CT (who has no specific recollection of any relevant matters beyond identifying his notes and handwriting); the evidence of SJ (a forensic officer employed at the Victorian Police Forensic Services Department), who gave evidence about the obtaining, storing and transport of exhibits in relation to biological examinations at both the Spring Street laboratory and the Macleod facility, and that the Ouchterlony test was capable of producing something for preservation in a AA cup; and the evidence of CT that he assumes from his notes that item 9B is a product of the Ouchterlony test that his notes appear to show that he performed in August 1983.
Counsel for the applicant submitted that it was not so much what evidence is now available to establish continuity that is important in the present application, but rather what evidence might now be missing by reason of delay and an inability to find documents that once must have existed, or might reasonably be expected to have existed. Specifically, counsel for the applicant relied upon the following five matters:
(a) the fact that there was no file or document capable of establishing the parameters of the investigation in this case (that is, there is no police case file);
(b) the fact that there are no property registers or ledgers produced from VPFSC recording movements of the various items and samples in this case — such documents being ones that should be capable of production in order to establish continuity with respect to the relevant samples;
(c) the fact that there are no notes establishing the provenance of item 9B. As it was put by counsel for the applicant, CT’s notes did not attribute any time to the performance of the Ouchterlony test, or to the taking, storing or labelling of samples;
(d) what was said to be an inability to know whether the original Ouchterlony test was capable of indicating the presence of human blood or just any human biological sample (reliance was placed upon uncertainty in the evidence of SJ); and
(e) the fact of the absence of the complainant’s dress, and the concomitant inability to check whether in fact the sleeves or cuffs of the dress have been sampled at all.
With respect to the second matter relied upon by the applicant’s counsel, counsel pointed by way of example to CT’s evidence that he would not ordinarily put item 6 with items 9A and 9B, and yet they were found in a bag together in the freezer at Mcleod. This was said to suggest that these items had been handled by someone other than CT, and that this unknown person’s handling of the items may have been an occasion on which there could have been a transference of DNA or some other form of contamination.
Further, it was submitted that, unlike in Audsley v The Queen,[3] the difficulties caused by the gaps identified, by counsel for the applicant, in the evidence in the present case, were not capable of being rectified by the cross-examination of a witness with relevant first-hand knowledge. In the present case, while such a witness (a witness who could be relevantly cross-examined) might have been CT, the evidence already given by CT discloses that he has no independent recollection of events beyond what appears to be recorded in his notes and what is written in his handwriting on relevant labels. Additionally, it is to be noted that CT has already given evidence that his memory of events is not revived by him seeing his notes.
[3](2013) 228 A Crim R 98 (‘Audsley’).
In substance, the applicant’s counsel contended that the applicant was left in a position of ‘grasping to enumerate a series of individually, seemingly, … stretched possibilities which … effectively reverses the onus of proof’. In summarising her complaints on this application, counsel for the applicant said:
Well it appears now that we have this trail and it's like saying Hansel and Gretel dropped some crumbs of bread and there was a gap because the birds ate it and they must have moved directly from A to B. But they may not, they may have gone over the mountain, they may have got lost and played cricket on the way. The problem is when one says it it seems grasping but this is the sole connection, putting aside for the minute the contested admissions or incriminating conduct evidence, this is the sole connection between this accused and the rape. It's a very significant piece of evidence that’s sought to prove the continuity circumstantially and so hence the significance of the prosecution not being able to prove it directly and the accused not being able to cross-examine anyone effectively to identify the problems in anything other than a hypothetical possibility.
The respondent’s argument in this Court
The respondent supported the trial judge’s ruling. On behalf of the Director it was submitted that the judge’s discretion did not miscarry and that any forensic disadvantage caused by delay or the loss of evidence could be dealt with by appropriate directions from the trial judge.
Analysis
Notwithstanding the cogent argument advanced by counsel for the applicant, we are not persuaded that there is any error in the trial judge’s refusal of the applicant’s application for a permanent stay. Undoubtedly, the quality of the evidence capable of being given on the issue of the continuity of the custody of samples taken from the complainant in 1982, the testing that was performed in 1983 and the subsequent testing after the arrest of the applicant, is not what it might have been had the relevant events happened over a shorter time-frame than elapsed in this case. That said, assuming the admissibility of the evidence to which we have already referred (and about which the trial judge has not ruled), it does not seem to us that the continued prosecution of the applicant involves a level of unfairness which requires the permanent staying of the current prosecution.
We agree with the trial judge that, in so far as there might be any forensic disadvantage suffered by the applicant as a result of the delay in this case, that disadvantage is capable of being the subject of powerful submissions by the applicant’s counsel at trial, and is also capable of being remedied by appropriate warnings and directions given by the trial judge to the jury.
As part of her argument on this application, counsel for the applicant pointed to the fact that evidence was given by SJ that there was an uncertainty as to whether the original Ouchterlony test was capable of distinguishing between human blood and any other human biological sample. We are not persuaded that that evidence (either alone or in combination with other factors) is of great moment at the present time. The issue does not appear to have been fully explored and it may well be that after further investigation the question of the ability of the original Ouchterlony test to distinguish between blood and other samples may be capable of more precise resolution.
Similarly, the fact that item 6 has been found bundled together with items 9A and 9B (contrary to the expectation or usual practice of CT) does not (either alone or in combination) justify the granting of any permanent stay in this proceeding. This, like other ‘continuity’ issues raised by the applicant, is a matter capable of being explored at trial, and about which one might reasonably expect trial counsel for the applicant will make some moment of in front of the jury. Equally, we would expect that this issue would be the subject of an appropriate warning and direction by the trial judge.
It is plain from the applicant’s written summary of contentions in this Court that the applicant will make application to the trial judge to exclude some (if not the greater part) of the DNA evidence, and the applicant’s alleged admissions, as being irrelevant, or inadmissible hearsay, or pursuant to s 135 and/or s 137 of the Evidence Act 2008. As we have said, no such application has yet been made to the trial judge. That said, if the applicant is able to persuade the trial judge to rule out any of the DNA evidence, or the evidence of alleged admissions, then different considerations may apply in relation to any subsequent application to the trial judge for a permanent stay. All that we need say at present is that we do not detect any relevant error in the ruling the applicant currently seeks to impugn.
Ultimately, if the DNA evidence with respect to item 9B is admitted it will fall to be considered in the light of the evidence as a whole relating to its provenance including the evidence as to item 9A.
Conclusion
The application for leave to appeal must be refused.
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