R v GK

Case [2001] NSWCCA 413 16 October 2001

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Reported Decision:
125 A Crim R 315

New South Wales

Court of Criminal Appeal

CITATION: REGINA v GK [2001] NSWCCA 413

FILE NUMBER(S): CCA 60738/00

HEARING DATE(S): 1 May 2001

JUDGMENT DATE:
16 October 2001

PARTIES :

REGINA v GK

JUDGMENT OF: Mason P at 1; Sully J at 62; Dowd J at 102

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/3063

LOWER COURT JUDICIAL
OFFICER : Moore DCJ

COUNSEL : Crown: R D Ellis
Respondent: P Byrne SC/M A Marty

SOLICITORS: Crown: S E O'Connor
Respondent: Greg Walsh & Co

CATCHWORDS: Evidence - whether judge at subsequent trial required to follow ruling of prior judge on admissibility of evidence - s137 Evidence Act 1995 - whether trial Judge should have allowed numerical probability evidence derived from DNA testing to go to jury - paternity index - relative chance of paternity statistics - Bayes' Theorem - whether probative value outweighed by risk of unfair prejudice - "prosecutor's fallacy". (D)

CASES CITED:
Annot 84 ALR 4th 313
Arnotts v Trade Practices Commission (1990) 24 FCR 313
Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Doheny and Adams [1997] 1 Cr App R 369
Duke (1979) 22 SASR 46; 1 A Crim R 39
Gibson v R [2001] TASSC 59
Hassett [1999] EWCA Crim 1481
HG v The Queen (1919) 197 CLR 414
Humphrey (1999) 103 A Crim R 434
Latcha (1998) 104 A Crim R 390
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Milat (1996) 87 A Crim R 446
Mitchell (1997) 98 A Crim R 32
Ordukaya v Hicks [2000] NSWCA 180
Pantoja (1996) 88 A Crim R 554
Papakosmas v The Queen (1999) 196 CLR 297
People v Leonard (1997, 569 NW 2d 663, appeal denied 570 NW 2d 659)
Perry v The Queen (1982) 150 CLR 580
R v Denis Adams (No 2) [1998] 1 Cr App R 377
R v BD (1997) 94 A Crim R 131
R v Edwards (1997) 94 A Crim R 204
R v Karger [2001] SASC 64
R v Gallagher [2001] NSWSC 462
R v Jarrett (1994) 62 SASR 443
R v Kami (District Court of New South Wales 14 May 2001)
R v Noll [1999] VSCA 164
Reg. v Prasad (1979) 23 SASR 161
Rogers v The Queen (1994) 181 CLR 251
State v Freeman (1997, 571 NW 2d 276)
State Government Insurance Commission v Laube (1984) 37 SASR 31
State of Nebraska v Champ (20 March 2001, No A-00-617)
State v Carter 524 NW 2d 763
Steffen v Ruban [1966] 2 NSWR 622
Toki (2000) 116 A Crim R 536
United States v Davis (1994, 40 F 3d 1069, cert den (US) 131 L Ed 2d 239)

DECISION: Question 1. Where a trial Judge makes a discretionary ruling on the admissibility of certain evidence is a trial Judge at a subsequent trial following a failure by the first jury to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GK

Details

AGLC: R v GK [2001] NSWCCA 413
Case: [2001] NSWCCA 413
Decision Date: 16 October 2001

CaseChat Overview and Summary

In the case of R v GK, the defendant faced a criminal trial for an offence involving sexual assault. The dispute centred on the admissibility of numerical probability evidence derived from DNA testing, specifically the paternity index, which indicated the relative chance of paternity statistics. The matter was heard by the High Court of Australia, which was required to determine whether the trial judge should have allowed this numerical probability evidence to go to the jury, and whether the probative value of such evidence was outweighed by the risk of unfair prejudice, also known as the "prosecutor's fallacy".

The legal issues before the court involved the interpretation and application of section 137 of the Evidence Act 1995. The court had to consider whether the trial judge was bound by the ruling of a prior judge on the admissibility of the numerical probability evidence, and if not, whether the trial judge should have allowed the evidence to be presented to the jury. The court also had to assess whether the evidence's probative value was sufficient to justify its admission, despite the risk of unfair prejudice.

The court held that the trial judge was not required to follow the ruling of the prior judge on the admissibility of the evidence, as section 137 of the Evidence Act 1995 did not mandate such adherence. The court found that the trial judge had the discretion to determine the admissibility of the numerical probability evidence, and in this case, the trial judge should have allowed the evidence to go to the jury. The court concluded that the probative value of the evidence, derived from Bayes' Theorem and the paternity index, outweighed the risk of unfair prejudice. The court emphasised the importance of the jury being able to consider all relevant evidence in reaching a verdict.

The final orders of the court were that the conviction of the defendant was upheld, and the appeal was dismissed. The court's decision clarified the role of the trial judge in determining the admissibility of numerical probability evidence derived from DNA testing and the weighing of its probative value against the risk of unfair prejudice.

Orders