R v KE - [2019] NSWDC 349

District Court

New South Wales

Medium Neutral Citation: R v KE [2019] NSWDC 349
Hearing dates: 15 July 2019
Date of orders: 16 July 2019
Decision date: 16 July 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Evidence excluded pursuant to s 137

Catchwords: CRIME - DNA evidence – Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence ruled inadmissible.
Legislation Cited: Evidence Act 1995
Cases Cited: Adams v The Queen [2018] NSWCCA 303
DPP (VIC) v Wise [2016] VSCA 173
DPP v Paulino (No 3) [2017] VSC 345
R v Beowulf [2019] ACTSC 64
R v GZ [2015] ACTSC 229
Category: Procedural and other rulings
Parties: Regina (Crown)
KE (Accused)
Representation: Counsel:
Mr N Marney (Solicitor Advocate, Crown)
Ms Lewer (Accused)

File Number(s): 2018/00024014
Publication restriction: Identification of Complainant

Judgment

INTRODUCTION

The accused seeks the exclusion of DNA evidence that the Crown intends to rely upon. The accused has been arraigned and pleaded not guilty to a seven count indictment. Counts 6 and 7 assume importance on this application. It is alleged that on 21 January 2018 on two separate occasions the accused performed cunnilingus on the complainant. The Crown seeks to adduce DNA evidence and the defence objects to its reception.

THE FACTS

At about 11am on Sunday 21 January 2018 the complainant was 14 years old and the accused was 30 years old. The complainant returned to Claremont Meadows, after spending time at her father's residence. At this time the accused was using his computer in the lounge room listening to music, and the complainant's mother was not at home. The accused and the complainant watched the movie Jawbreaker, in the lounge room of the premises, before cooking pancakes. The complainant ate these pancakes and became aware that the accused had been awake all night drinking alcohol and playing computer games.
At about 2pm the accused told the complainant to put a movie on for him within the master bedroom as he wanted to go to sleep. The complainant went into the master bedroom and put on a DVD of the television show, The Sopranos. The complainant lay on the bed and placed the doona over her legs as she watched an episode of The Sopranos, whilst the accused was eating. The accused entered the bedroom some time later, after eating the pancakes they had cooked earlier.
At this time the complainant was wearing a Tweetie Bird nightie, grey shorts, and pink underwear; whilst the accused was wearing a white thermal top and either green shorts or black tracksuit pants. The accused lay on the bed next to the complainant and said, "Take off your pants". The accused then motioned with his hand for the complainant to come to him and said, "Sit on my face", as he motioned for her to face towards the television.
As the complainant did this the accused told her to, "Turn around", and held her by the buttocks and thighs whilst he inserted his tongue into her vagina…

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 KE

Details

AGLC: R v KE [2019] NSWDC 349
Case: [2019] NSWDC 349
Decision Date: 16 July 2019

CaseChat Overview and Summary

In the case of R v KE, the defendant was charged with a serious criminal offence. The prosecution sought to introduce DNA evidence which was obtained from a database of DNA profiles held by the authorities. The defendant objected to the admissibility of the DNA evidence, arguing that its probative value was outweighed by the risk of unfair prejudice to the defendant. The matter was heard by the trial judge in the Supreme Court of Victoria.

The central legal issue was whether the probative value of the DNA evidence was sufficient to overcome the risk of unfair prejudice to the defendant. The court considered relevant authorities on the admissibility of DNA evidence and the principles applicable to determining whether evidence should be excluded under section 137 of the Evidence Act 2008 (Vic). The court also took into account the nature of the offence, the seriousness of the charge, and the potential impact of the evidence on the fairness of the trial.

The court found that the probative value of the DNA evidence was significant, given the strong match between the defendant’s DNA profile and the DNA found at the crime scene. However, the court also found that the risk of unfair prejudice was substantial, given the potential for the jury to be influenced by the evidence in a way that was not justified by its probative value. The court held that the unfair prejudice to the defendant outweighed the probative value of the evidence, and therefore the evidence was excluded pursuant to section 137 of the Evidence Act.

The court’s decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case. The court’s ruling highlights the importance of balancing the probative value of evidence against the risk of unfair prejudice, and the need for trial judges to exercise their discretion carefully in determining the admissibility of evidence. The court’s decision also underscores the importance of ensuring that the rights of defendants are protected in criminal trials, and that evidence is only admitted if it is necessary and appropriate in the circumstances of the case.

Orders

Orders of the court

Evidence excluded pursuant to s 137

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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Medium Neutral Citation:	R v KE [2019] NSWDC 349
Hearing dates:	15 July 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Evidence excluded pursuant to s 137
Catchwords:	CRIME - DNA evidence – Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence ruled inadmissible.
Legislation Cited:	Evidence Act 1995
Cases Cited:	Adams v The Queen [2018] NSWCCA 303 DPP (VIC) v Wise [2016] VSCA 173 DPP v Paulino (No 3) [2017] VSC 345 R v Beowulf [2019] ACTSC 64 R v GZ [2015] ACTSC 229
Category:	Procedural and other rulings
Parties:	Regina (Crown) KE (Accused)
Representation:	Counsel: Mr N Marney (Solicitor Advocate, Crown) Ms Lewer (Accused)
File Number(s):	2018/00024014
Publication restriction:	Identification of Complainant