R v Carpenter; R v Carpenter
[2019] ACTSC 169
•28 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carpenter; R v Carpenter |
Citation: | [2019] ACTSC 169 |
Hearing Date: | 27 June 2019 |
DecisionDate: | 28 June 2019 |
Before: | Elkaim J |
Decision: | The Crown is not permitted to lead evidence before the jury of the identification of Mr Carpenter’s DNA in the vehicle. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Voir Dire – Evidence Act 2011 (ACT) s 137 – exclusion of prejudicial evidence – DNA evidence – challenge to DNA taken from vehicle involved in offence CRIMINAL LAW – EVIDENCE – drive stolen motor vehicle without consent – vehicle located and tested approximately one month after offences took place – DNA taken from multiple surfaces with same swab – accused’s DNA found – whether or not DNA establishes accused as a driver or rider of the vehicle |
Legislation Cited: | Criminal Code 2002 (ACT) s 318(2) Evidence Act 2011 (ACT) ss 55, 137 |
Parties: | The Queen (Crown) Kylie Carpenter (First Accused) Steven Carpenter (Second Accused) |
Representation: | Counsel M Fernandez (Crown) J Masters (First Accused) T Jackson (Second Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird and Co (First Accused) Baker Deane and Nutt (Second Accused) | |
File Number: | SCC 200 of 2018; SCC 130 of 2019 |
Publication Restriction: | Not to be published until the conclusion of the trial. |
ELKAIM J:
There are two accused in this trial who I will refer to as Mr Carpenter and Ms Carpenter respectively. This judgment relates to Count 5 in the indictment which is an allegation made only against Mr Carpenter. Count 5 states:
And further that on or between 30 September 2016 and 27 October 2016 at Canberra aforesaid Steven Carpenter dishonestly drove a motor vehicle belonging to someone else, namely Leonard Sullivan and the vehicle was dishonestly taken by someone without the consent of Leonard Sullivan.
Count 5 is derived from s 318(2) of the Criminal Code2002 (ACT) (Criminal Code):
(2) A person commits an offence if –
(a)the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b)the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
When the trial commenced, on 25 June 2019, Counsel for Mr Carpenter foreshadowed a voir dire concerning certain DNA evidence proposed to be led by the Crown in respect of Count 5. The purpose of the voir dire was for Mr Carpenter to make an application that the DNA evidence should not be put before the jury.
The voir dire took place yesterday afternoon. Evidence was given by Mr Joshua Schwartz, a forensic biologist employed by the Australian Federal Police. He was standing in for Ms Jennifer Stone who had prepared a report concerning DNA found in a Holden Commodore motor vehicle (Exhibit B on the voir dire). This motor vehicle is at the core of this case. The balance of the case involves the alleged ‘carjacking’ of the vehicle in the early hours of 30 September 2016, together with the assault upon the driver of the vehicle, Mr Leonard Sullivan.
The evidence given by Mr Schwartz can be summarised as follows:
(a)Swabs were taken from the interior of the vehicle on 27 October 2016, thus about a month after the alleged carjacking.
(b)Mr Carpenter’s DNA was identified.
(c)The swabbing consisted of a wet swab followed by a dry swab of three specific areas of the vehicle.
(d)The specific areas were the handbrake lever, the gear lever and the steering wheel. Although not showing precisely where the swabs were taken, these three areas can be seen in Exhibit A on the voir dire. It is immediately apparent from this photograph that the handbrake lever and the gear lever are situated between the front passenger and driver’s respective seats.
(e)In the case of both the wet swab and the dry swab, the same swab was used for each area. In other words, without this necessarily being the correct order, once the gear lever had been swabbed, the same swab was applied to the handbrake lever and then to the steering wheel.
(f)As a result of this method of swabbing, it could not be said that Mr Carpenter’s DNA had been located on any one or more of the three areas swabbed.
(g)The identification of the DNA could not give any clue as to the length of time the DNA had been present on the site where it had been located.
The application for the exclusion of the DNA evidence was put on a number of levels: firstly it was said that the evidence was not relevant and therefore was not admissible pursuant to s 55 of the Evidence Act 2011 (ACT) (Evidence Act). Secondly, drawing upon the terms of s 318(2), it was submitted that the evidence should be excluded under s 137 of the EvidenceAct. In this regard the submission was that because Count 5 related only to the driving of the vehicle, the inability to identify the precise source of the DNA made its presence equally consistent with it having been deposited by a passenger or a driver of the vehicle. Thirdly it was submitted that the DNA could only establish Mr Carpenter’s presence in the vehicle. It could not establish that he either drove or rode in the vehicle.
The Crown opposed the application, submitting that the evidence was highly relevant and probative. Further the Crown, in case I found against it on the basis of the terms of Count 5, made an application to amend Count 5 so that it alleged that Mr Carpenter had “driven or rode” in the Holden.
It is fundamental to the application that the following concession was (properly) made by the Crown, namely that the only evidence available to the Crown to establish Count 5 was the DNA evidence.
Although s 55 was put as the initial reason for the exclusion of the evidence, I think it is first of all necessary to examine the second and third bases advanced by Mr Carpenter.
The strength of the s 137 point arises from whether or not the Count 5 should be allowed to encompass both a driving and/or a riding in the vehicle. The Crown said this in its opening to the jury;
That car was seized by police laid the basis ultimately for the charge of being Count five on the indictment, alleging that Steven Carpenter dishonestly drove the motor vehicle (emphasis added, Transcript page 15.35).
Mr Carpenter submitted that the Crown had chosen to specifically charge and run the case on the basis that Mr Carpenter had driven the vehicle. This was explicit from the terms of the indictment and the opening to the jury.
Mr Carpenter continued that if the specific source of the DNA could not be identified, then the DNA was equally consistent with it having been deposited by a passenger as by a driver. Notably it was pointed out that the location of the gear lever and the handbrake lever were such that DNA could be deposited upon them by a passenger simply touching them in the course of being seated as a passenger.
Because of the inability to specifically identify the source of the DNA (as a result of the swabbing method that had been used) the probative value of the evidence was substantially weakened and its potential to create an unfair prejudice was heightened.
Mr Carpenter said his submission was made stronger by the DNA evidence being the only evidence capable of establishing Count 5.
The Crown responded that it was not confined in presenting its case to Mr Carpenter being only the driver. It submitted that s 318(2) encompassed both a person who drives and rides in a motor vehicle and that the amended case statement (Exhibit C on the voir dire), which had been provided to Mr Carpenter in advance of the trial, encompassed both driving and riding in the vehicle.
In my view the amended case statement does not achieve the purpose stated by the Crown. Paragraph 22 of the statement certainly refers to an accused who “drives or rides in a motor vehicle” but these words are no more than an identification of the first element of any s 318(2) offence. The particulars that follow are mostly concerned with Ms Carpenter and make only this reference to Mr Carpenter:
K. Evidence of Forensic Biologist Jennifer Stone that Steven Carpenter’s DNA was identified as being on the steering wheel, handbrake, and gear stick of the car.
This particular goes no further than stating that the DNA is the basis for the charge against Mr Carpenter. It certainly does not encompass both driving and riding in the vehicle.
I think the Crown is confined, by the terms of the indictment and by its opening to the jury, to a case that alleges Mr Carpenter had driven the vehicle. Section 318(2) may encompass both activities but that does not mean that reliance on one (driving) necessarily includes the other (riding). The Crown could have phrased the indictment to encompass both activities or even, by way of an alternative count, included the allegation of riding in the vehicle.
Based on this conclusion, I agree with this submission that the probative value of the DNA evidence is weak, that the potential for prejudice is high and, taken with the absence of any other evidence, I am bound, by s 137, to exclude this evidence.
Turning now to the third basis for excluding the evidence, I also agree with Mr Carpenter’s submission to the effect that mere presence in the vehicle is not sufficient to establish driving or riding in the vehicle. In order to establish driving there must be some evidence that establishes that the accused moved the vehicle, or had control over its means of propulsion, for example through steering or breaking. The movement might be very slight, but nevertheless there must be more than only being in the vehicle.
The DNA evidence does no more than place Mr Carpenter in the vehicle.
In respect of riding in the vehicle, and drawing upon the requirements for driving, I think that something more than a presence in the vehicle is required. Although riding is not defined in the Criminal Code, and the parties were unable to provide me with any authorities on the point, I think that riding necessitates movement of the car or at least an attempt to move the car, being an enterprise in which the accused is participating as a passenger.
This conclusion has the same effect in relation to s 137 and also relates back to s 55, raising the issue of whether the DNA evidence is relevant at all.
The Crown submitted that even if I reached the conclusions set out above, the DNA evidence remained relevant and probative in respect of the allegations against Ms Carpenter because the vehicle was ultimately located by the police on a street a short distance from the residence shared with her brother. It was suggested that if Mr Carpenter’s DNA was found in the car then there was, whether by transfer of DNA or otherwise, a natural link to the association of the vehicle with Ms Carpenter and accordingly with the allegations against her. In my view this use of the evidence is of such little weight to the allegations against Ms Carpenter that it must be excluded.
The final point is whether or not I should give leave to the Crown to amend the indictment in the manner set out above. I do not think I should, for two reasons:
(a)The Crown elected to proceed on the basis that Mr Carpenter had driven the vehicle. The trial is well and truly on the way and it is simply too late to allow an amendment that changes the basis for the alleged guilt of Mr Carpenter.
(b)More importantly, on the basis of my finding that presence alone is not enough to establish an offence under s 318(2), whether the accused is a driver or riding in the vehicle, the amendment would be of no utilitarian purpose.
Accordingly, I make the following order: The Crown is not permitted to lead evidence before the jury of the identification of Mr Carpenter’s DNA in the vehicle.
| I certify that the preceding Twenty Six [26] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 28 June 2019 |
0
0
2