R v GZ - [2015] ACTSC 229

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v GZ
Citation:	[2015] ACTSC 229
Hearing Date(s):	29 June 2015
DecisionDate:	29 June 2015
Before:	Burns J
Decision:	The DNA evidence is inadmissible.
Category:	Procedural and other rulings
Catchwords:	CRIMINAL LAW – Particular Offences – offences committed against children – sexual offences – sexual intercourse with a child under the age of 10 years. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – DNA evidence – whether the probative value of the evidence is outweighed by the danger of unfair prejudice that its admission would cause – s 137 Evidence Act 2011 (ACT) – risk that the jury will give evidence greater weight than it is due – evidence ruled inadmissible.
Legislation Cited:	Evidence Act 2011 (ACT) s 137
Parties:	The Queen (Crown) GZ (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr W Terracini SC with Mr T Quilter (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kernaghan & Associates Lawyers (Accused)
File Number(s):	SCC 377 of 2009

BURNS J:

Background

The accused was charged with two counts of sexual intercourse with a child under the age of 10 years. These charges were based on allegations that the accused licked the complainant’s genital area. The matter was set down for trial by jury commencing 29 June 2015. I note that this was the third time these allegations had gone to trial. The first trial ended with a hung jury. The accused was convicted of the offences at his second trial; however, those convictions were later overturned by the Court of Appeal: see GZ v The Queen [2015] ACTCA 11.

On the first day of the trial, the accused raised an objection to DNA evidence that the Crown intended to lead on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice that its admission would cause pursuant to s 137 of the Evidence Act 2011 (ACT). At that point, the evidence had not yet been led, but the parties were content for me to make a ruling based upon the material which was found in the written outline of submissions for the accused.

After hearing from both parties, I ruled that the DNA evidence should be excluded pursuant to s 137 of the Evidence Act 2011 (ACT). I gave brief reasons for my decision at the time, however, I now consider it appropriate to give more comprehensive written reasons. These are those reasons.

Reasons for decision

DNA was located on the interior of the complainant’s underwear. The DNA was alleged by the prosecution to have originated from the accused’s saliva. The prosecution contended that the DNA was transferred from the complainant’s skin to her underwear by a process called secondary transference.

The complainant had spent time with the accused at his house on the day in question. It is of particular significance to note that there was no dispute that there was ongoing physical contact between the complainant and…

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 GZ

Details

AGLC: R v GZ [2015] ACTSC 229
Case: [2015] ACTSC 229
Decision Date: 29 June 2015

CaseChat Overview and Summary

In the case of R v GZ, the respondent was charged with sexual intercourse with a child under the age of ten years, an offence under the Criminal Code Act 1995 (Cth). The matter was heard in the Supreme Court of the Australian Capital Territory, presided over by Justice Macfarlan. The core issue revolved around the admissibility of DNA evidence that was to be presented to the jury. Specifically, the court had to determine whether the probative value of the DNA evidence was outweighed by the danger of unfair prejudice that its admission would cause to the respondent, pursuant to section 137 of the Evidence Act 2011 (ACT).

The court meticulously considered the potential impact of the DNA evidence on the jury's decision-making process. It was acknowledged that such evidence, when presented to a jury, could be afforded undue weight, potentially leading to an unjust outcome. In this instance, the court concluded that the risk of the jury assigning excessive probative value to the DNA evidence was significant, and thus it ruled the evidence inadmissible. This decision was based on the need to ensure a fair trial, protecting the respondent from the risk of prejudice that might arise from the jury's misapprehension of the DNA evidence's significance.

Consequently, the court determined that the DNA evidence was not admissible in the proceedings. The ruling underscored the importance of maintaining a balance between the probative value of evidence and the potential for prejudice in criminal trials, particularly in cases involving children. The court's decision to exclude the DNA evidence aimed to safeguard the integrity of the trial process and the rights of the respondent.

Orders

Orders of the court

The DNA evidence is inadmissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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