R v King (No 1)
[2016] ACTSC 166
•7 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v King (No 1) |
Citation: | [2016] ACTSC 166 |
Hearing Date: | 7 June 2016 |
DecisionDate: | 7 June 2016 |
Before: | Murrell CJ |
Decision: | Evidence admitted. |
Catchwords: | CRIMINAL LAW – Applications – application to exclude evidence – relevance – probative value – danger of unfair prejudice – DNA evidence |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 56, 137, Dictionary |
Cases Cited: | R v Cassidy [2016] NTSC 1 R v GZ [2015] ACTSC 229 |
Parties: | The Queen (Crown) Wesley Matthew King (Accused) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Ms S McGee (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Accused) | |
File Number: | SCC 215 of 2015 |
MURRELL CJ:
The accused is to be tried by a judge alone on three counts of burglary and one of theft.
The accused objects to the statements and reports of Ms Jennifer Stone dated 11 August 2015 and 31 May 2016. Alternatively, the accused makes more limited objections. I have dealt with these separately.
The accused also objects to evidence from lay witnesses and police to the effect that they saw material that appeared to be faeces at the scene of the burglaries. The objections are made pursuant to ss 55 and 56 (relevance) and s 137 of the Evidence Act 2011 (ACT) (probative value is outweighed by the danger of unfair prejudice to the accused).
The prosecution alleges that, between 30 December 2014 and 2 January 2015, an offender forced entry to a cafe and two sheds at 23 Lonsdale Street, Braddon. The premises were used by the business Lonsdale Street Roasters. The burglary was reported on 1 January 2015 by an employee.
On 1 January 2015, several lay witnesses and police witnesses viewed the scene. Within an office area and on top of scattered papers, police located a pair of male underpants that appeared to be extensively soiled with faeces. Close to the underpants, there was material that appeared to be liquid faeces, which was lying on top of the scattered papers.
Ms Stone, a senior forensic biologist with the Australian Federal Police (AFP), took a tape lifted sample from inside the waistband of the soiled underpants and found that it contained a mixed DNA profile from at least two individuals. She was able to separate the profile into major and minor components. The minor component was not suitable for identification purposes.
Ms Stone concluded that the accused could not be excluded as the source of the major component. Initially, she reported that the evidence was at least 100 billion times more likely if the major component of the DNA profile originated from the accused than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian male subpopulation. Later, she clarified that, by reference to the Australian Caucasian male database, it was at least 271 septillion times more likely that the major component of the DNA profile came from the accused rather than from someone else. By reference to the Australian Indigenous database, Ms Stone did not give the precise figure, but she said that the likelihood ratio exceeded 100 billion and that she had undertaken a calculation to that effect.
Ms Stone gave evidence that she proceeded on the basis that the major component emanated from only one individual because there was a very clear delineation between the major and minor components. Further, the characteristics of the major component were very balanced from marker to marker, i.e. between each of the 20 markers that were used in addition to the gender marker. There was no suggestion that any marker could be the result of DNA shared by two people. If that had been the case, one would have expected the heights of the peaks to change as between markers.
The possibility that there could have been a second contributor to the major component rests on two bases. First, an identical twin would have the same DNA and such a person's contribution would be masked by the result. Alternatively, the likelihood ratio of 100 billion was met in the case. In other words, the estimated one-in-one-billion other person who had identical DNA happened to have contributed to the major component.
Ms Stone was unable to say how or when the DNA was actually deposited, but the quantity of the major contribution indicated that it came from a wearer of the underpants and was not merely transferred by more fleeting contact. Conversely, the quantity of the minor contribution made it more likely that it had been deposited by transfer.
Ms Stone gave evidence that the underpants contained heavy brown staining and they smelled. It was these observations that led her to conclude that the staining was probably caused by faeces. One hardly needs the evidence of Ms Stone to form that conclusion or to conclude that faeces is the likely source of the staining; the colour and location of the staining that is visible in the photographs taken by Ms Stone indicates that the likely source of the staining is faeces.
Exclusion pursuant to s 55 (relevance)
In these circumstances, the accused submits that the evidence of faeces observed at the scene and the DNA evidence of Ms Stone are, together and independently, not relevant.
Pursuant to s 55(1) of the Evidence Act 2011 (ACT) (Evidence Act):
the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The critical fact in issue in these proceedings is the identity of the burglar. The evidence of the faeces, either alone or when taken together with the DNA evidence, is capable of rationally affecting the assessment of the probability that the accused was the burglar.
The evidence against the accused is circumstantial. In relation to each contentious item of evidence—faeces, underpants and DNA—it is an interrelated circumstance upon which the prosecution relies. Taken in isolation, it is arguable that each item of evidence (particularly, the faeces) does not directly affect the assessment of the fact in issue (the identity of the burglar). However, taken together, as circumstances always are, it is clear that the matters are relevant.
The obvious way in which they are relevant is through the following process of reasoning. The faeces and the underpants must have been left by the burglar because they were located on top of items that the burglar must have strewn around. The next person who attended the scene was an employee who immediately reported it and certainly did not leave the faeces, the strewn material or the dirty underpants. The underpants appear to have been worn, at least at some time, by the accused and there is no indication that they were worn in their recent past by anyone other than the accused.
While there is no absolutely conclusive evidence that the accused wore the underpants, there is evidence to an extremely high level of probability, an overwhelming level of probability, that the DNA that was the major component of the DNA in the underpants, and which was apparently the DNA of a wearer of the underpants, was that of the accused.
The line of reasoning is that the burglar defecated and left the dirty underpants at the scene after he had broken into and ransacked the premises, and that the accused is the only person who appears to be the wearer of the underpants. He was certainly associated with the underpants and, as the evidence currently stands, there is no innocent explanation for the location of the underpants at the scene of the crime. Therefore, there is an available line of reasoning to the effect that the accused must be the burglar, and the individual items of evidence, taken together, are relevant to the fact in issue, being the identity of the burglar.
Exclusion pursuant to s 137 (probative value outweighed by danger of unfair prejudice)
The accused's next argument is that the evidence of faeces, DNA and underpants must be excluded pursuant to s 137 of the Evidence Act. This section requires a court to reject evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Probative value is defined in the Dictionary to the Evidence Act to mean:
the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
In other words, probative value means the extent to which evidence is relevant – the extent to which it might bear upon the existence of a fact in issue.
As stated above, it is my view that the three circumstances to which I have referred reflect strongly upon the critical fact in issue, being the identity of the burglar.
On the other hand, the accused has been unable to identify any "unfair prejudice" that would arise from admission of the material. It is trite to say that the prejudice to which s 137 refers is unfair prejudice. It is not prejudice that is associated with the strength of the probative value, it is something different. For example, unfair prejudice might arise where evidence is unnecessarily colourful and likely to arouse negative emotions in a fact finder.
Arguments about unfair prejudice are generally more powerful where the fact finder is a jury, not a judge alone. But regardless of the merits of distinguishing between different fact finders, in this case, the accused has not clearly identified any relevant unfair prejudice.
I believe that it was faintly suggested that the fact that part of the evidence to which objection is taken is DNA evidence is a matter that might immediately arouse in the fact finder a prejudice against an accused person on the basis that fact finders are liable to jump to the conclusion that, if there is DNA evidence, then the case is an open‑and‑shut case. However, that submission was not clearly put and it could not be maintained in the case of judge alone proceedings; certainly not in the circumstances of the present case.
The Court was referred to two decisions in which DNA evidence was excluded. In R v GZ [2015] ACTSC 229, the Court excluded DNA evidence obtained from the interior of the child complainant's underwear in proceedings in which sexual intercourse was alleged. This was in the context that there was evidence that the DNA may have come to be on the underwear through contamination with other clothing of the child, i.e. by transfer rather than by direct deposit. The accused had a close relationship and ongoing contact with the child, and there would have been a number of opportunities for innocent transfer to have occurred. In those circumstances the trial judge determined that there was a real risk that the jury would give the evidence more weight than it was due.
Similarly in R v Cassidy [2016] NTSC 1, where the proceedings arose from a fatal hit and run accident, the deceased's DNA was located at two different locations. Upon analysis, the trial judge decided that evidence of the DNA at one location should be excluded because there were other innocent explanations and the admission of the evidence might cause the jury to reason in a manner that would be prejudicial to the accused. In other words, the evidence of the deceased's DNA at the relevant location was, at best, of limited probative value. That is not the case here.
Consequently, these two cases are not relevantly similar to the present case. As mentioned, in this case, not only is the probative value of the evidence high, but the asserted danger of unfair prejudice has not been clearly articulated.
The evidence will be admitted.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Anneke Bossard Date: 11 July 2016 |
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