R v Lisoff

[1999] NSWCCA 364

CITATION:	Regina v Lisoff [1999] NSWCCA 364 revised - 23/11/99
FILE NUMBER(S):	CCA 60460/99
HEARING DATE(S):	15 September 1999
JUDGMENT DATE:	22 November 1999
PARTIES :	Regina Nick Lisoff
JUDGMENT OF:	Spigelman CJ; Newman J; Sully J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0800
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ

COUNSEL:	D. N. Howard - Crown P. G. Hogan - Respondent
SOLICITORS:	S. E. O'Connor - Crown Martin Ricci - Respondent
CATCHWORDS:	Criminal law - jurisdiction of Court of Criminal Appeal Criminal Appeal Act 1912 (NSW) s5F - exclusion of evidence under Evidence Act s137 may be "interlocutory order or judgment"; Evidence - Evidence Act s137 - complicated evidence not "unfairly prejudicial"
ACTS CITED:	Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Crimes Act 1900 (NSW)
CASES CITED:	Chamberlain & anor. v The Queen (1984) 153 CLR 521 Reg v Lucas (1992) 2 VLR 109 Reg v Lewis (1987) 29 ACrimR 276 Reg v Steffan (1993) 67 ACrimR 506 Reg v Powch (1988) 14 NSWLR 136 Reg v Edelsten (1989) 18 NSWLR 213 Reg v Anderson (unreported, CCA, NSW, 12 October 1989 Reg v Rogerson (1990) 45 ACrimR 253 Reg v Groves (unreported, CCA, NSW, 2 April 1990 Reg v Waterhouse (1992) 62 ACrimR 59 Reg v Baker (unreported, CCA, NSW, 5 April 1993 Chow v DPP, Court of Appeal, (1992) 28 NSWLR 593 Reg v Baily & anor (1988) 36 ACrimR 30 Reg v Bozatsis and Spanakakis (1997) 97 ACrimR 296 Jago v The District Court of NSW (1989) 168 CLR 23 at 49-50 Reg v Alexandroaia (1995) 81 ACrimR 286 at 290 Reg v Jarrett (1994) 73 ACrimR 160
DECISION:	(1) that the appeal be allowed; (2) that the order made by Goldring DCJ on 9 August 1999 excluding, pursuant to s.137 of the Evidence Act 1995, the evidence sought to be led at trial by the Crown on the subject of the location and DNA analysis of blood spotting on the respondent's clothing, be vacated; and (3) that the trial of the respondent proceed in conformity with the foregoing orders and otherwise according to law.

IN THE COURT OF
CRIMINAL APPEAL

60460/99

SPIGELMAN CJ
NEWMAN J
SULLY J

Monday 22 November 1999

REGINA v Nick LISOFF

The trial judge excluded scientific evidence relating to the identification of the complainant’s blood on the accused’s clothing. Without this evidence, it was not possible for the Crown to make its case.

Held:

1 An order which, in substance, prevents the Crown putting a case to the jury is an “interlocutory judgment or order” within the meaning of s5F of the Criminal Appeal Act 1912. R v Bozatsis and Spanakakis (1997) 97 ACrimR 296 applied. Jago v The District Court of New South Wales(1989) 168 CLR 23, R v Steffan [1993] 67 ACrimR 506, R v Baily & anor (1988) 36 ACrimR 30 considered.

2 His Honour applied the wrong test in exercising the discretion under s137 of the Evidence Act. That section requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. The requirements of the section are not satisfied if there is a mere possibility of prejudice.

The fact that scientific evidence is complex does not mean that to leave such evidence to a jury would result in unfair prejudice within the meaning of s137 of the Evidence Act. The conflict of scientific evidence was not such as to justify a conclusion that a jury could not decide whether or not the Crown had demonstrated beyond reasonable doubt that its evidence should be preferred.

IN THE COURT OF
CRIMINAL APPEAL

60460/99

SPIGELMAN CJ
NEWMAN J
SULLY J

Monday 22 November 1999

REGINA v Nick LISOFF

JUDGMENT

THE COURT:

Introduction

1 Before the Court is a Crown appeal brought pursuant to s.5F of the Criminal Appeal Act 1912 (NSW). So far as is at present relevant, s.5F provides as follows:

“(1) This section applies to:
(a) proceedings …………………… for the prosecution of offenders on indictment …………………… in the District Court, …………….

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.
(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:
(a) if the Court of Criminal Appeal gives leave to appeal, ……………………
……………………
(5) The Court of Criminal Appeal may
(a) affirm or vacate the judgment or order appealed against, or
(b) give or make an interlocutory judgment or order instead of the judgment or order appealed against.
(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.”

2   The matter now before this Court originated with the filing on 11 August 1999 of a document described as a “Notice of Appeal”. The body of the document describes the “Judgment or Order Appealed Against” as being a judgment or order made by his Honour Judge Goldring in the District Court on 9 August 1999, being a judgment or order: “That all scientific, expert or other evidence relating to the identification of the complainant’s blood on the Accused’s clothing not be admitted in purported exercise of a discretion under s.137 of the Evidence Act”. Relief is sought, thereupon, in the form of an order vacating such judgment or order made by Judge Goldring; and the making of such further or other orders as this Court might think appropriate.

The Relevant Facts

3   The Crown has presented in the District Court, and before Judge Goldring, three accused persons for trial by jury upon an indictment charging them with having maliciously inflicted grievous bodily harm upon a named victim with intent to inflict grievous bodily harm upon that victim. (That victim is the person described as the “complainant” in the Notice of Appeal earlier described.) Such an offence contravenes s.33 of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of penal servitude for 25 years. It is not necessary to say more about the particular attack than that it was, by any reckoning, a savage and cowardly attack by three assailants upon an individual victim. It needs no extended emphasis that such an attack is a crime of great objective culpability; and is a most serious affront both to public order and to the rights of the individual victim. Nor does it require extended emphasis that there is the clearest and most compelling public interest to ensure that those who commit such assaults are detected, apprehended, and brought resolutely to public justice. 4 The Crown case against each of the three accused persons involves, obviously, the presentation by the Crown of evidence sufficient, if accepted by a jury acting reasonably and properly instructed, to identify, beyond reasonable doubt, each of the three accused persons as an assailant. In the case of the present respondent’s two co-accused, there is clear identification evidence fit to go to the jury, being direct evidence from the victim himself. In the case of the respondent himself, the victim is unable to give that direct and personal identification. The Crown has, accordingly, cast about for any other identification evidence of a kind that might properly be placed before the jury in support of the Crown case against the respondent. With one exception, the evidence that the Crown has been able to piece together on the issue of the identification of the respondent, does no more, so far as we can judge the fact from the material available to the Court, than point up the futility of the relevant police investigations. Subject to the one exception to which we have referred, we are of the view, as at present advised, that the evidence available to the Crown so clearly fails to identify the respondent as one of the victim’s assailants as to entail that, absent any other evidence of real probative value, the Crown case could not properly be left to the jury. This Court was informed by affidavit filed on 17 September 1999 that the Director of Public Prosecutions has directed that should the DNA evidence remain excluded, “there are to be no further proceedings against the accused”. 5   The one exception of which we have spoken concerns evidence of blood said to have been detected upon clothing admittedly worn by the respondent on the day on which the assault in question took place. The particulars, as now relevant, of that evidence are summarised as follows in the written Crown submissions:

“4.5 The respondent gave to police the track suit pants and boots he said he was wearing on the day of the assault. These were written up as an exhibit and visually examined by detectives (who did not see any blood) but they were then forwarded to the Crime Scene Examination Unit for closer examination. There Detective Senior Sergeant Horne identified spots of blood on the track suit pants and some blood on one of the respondent’s boots. These were sent to the government laboratory where DNA testing established that the blood on the track suit pants and the boots had the same genetic profile as …….. (the victim’s) ……… blood, which occurs in the general population in the ratio of 1:340,000. This analysis was done by Mr. Goetz, head of the biology laboratory in the Division of Analytical Laboratories.
4.6 The defence sought a voir dire from his Honour as to the admissibility of the evidence relating to the blood. The Crown called Mr. Goetz and a number of police officers to establish the integrity of the blood sample taken from ………..(the victim). This blood was collected by police from the hospital and was stored in a refrigerator in the same exhibit room at the Crime Scene Unit as the track suit pants and boots were stored. Detective Senior Sergeant Horne gave evidence as to the security at the Crime Scene Unit.
4.7 The respondent’s counsel seeks to assert that the blood on the track suit pants is “post transfusion blood”, ( (the victim ) had transfusions at the hospital) and therefore implying that the blood was “planted” on the track suit pants by police. They called evidence from Dr. McDonald who was of the opinion that DNA testing that he did indicated foreign DNA material in the blood on the track suit pants consistently with the post transfusion blood taken from ………..(the victim). However he conceded as a possibility that what he considered were alleles may not have been, but could have been “artifacts”. He considered his testing process was more sensitive than that carried out by Mr. Goetz.
4.8 The Crown relied on Mr. Goetz, who did a different array of tests, and found no foreign DNA in the blood on the track suit pants. He conceded as a possibility that there could be, but considered this unlikely because he would have expected it to show up in at least one of the 16 tests he performed and it did not. There was therefore a dispute between the experts, which it is submitted ought to have been left for determination by the jury.
4.9 The Crown also relied on the police evidence as to the integrity of the blood and track suit pants/boots exhibits and the denial by police that any tampering occurred. The Crown further relied on the evidence of Snr. Constable Clarke that the blood stained pattern on the track suit pants was consistent with having been caused by blood spatter caused by medium impact with a blunt implement. He also agreed that such a pattern might be caused by a wide-bored syringe.”

6 Counsel for the respondent at trial submitted that the foregoing DNA evidence should be excluded by the trial Judge in the exercise of either or both of the discretions in that behalf that are conferred by ss.135 and 137 of the Evidence Act 1995 (NSW). His Honour granted an application for a voir dire hearing directed to the question whether either or both of those statutory discretions should be exercised in the manner sought by the present respondent. 7 Section 135 of the Evidence Act provides, so far as is now relevant, as follows:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”

8 Section 137 of the Act provides:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

9 On 9 August last the learned trial Judge published detailed reasons explaining his Honour’s decision to exclude, pursuant to s.137, the whole of the Crown’s DNA evidence.

The Reasons of Goldring DCJ

10   His Honour canvasses the evidence that he had heard on the voir dire. It is not necessary to repeat the detail of this part of his Honour’s published reasons. 11   His Honour then says this:

“I take the starting point that disputes about facts are ordinarily for the jury to decide, and if those facts depend on expert evidence, it is still the case that the jury should decide that, and there might have to be specific directions which make it clear what the dispute about the expert evidence is.”

12   His Honour bolsters what he has said, by reference to particular authorities. Of one of those authorities his Honour observes:

“Their Honours decided in that case there was a conflict of expert opinion, and it was for the jury to decide. I endorse this. Jurors are endowed with common sense, and if properly directed can decide most complex issues.”

13   After some further comments which are of no particular present relevance, his Honour proceeds as follows:

“It was argued by the prosecution that two questions should be left to the jury: namely, first, the conflict of evidence between Mr. Goetz who found no difference between the DNA profiles taken from the various samples and Dr. McDonald who did; and secondly, the question of whether the police evidence permitted an inference that the blood had been placed on the trackpants before the trackpants were taken from ………. (the respondent)……….. and placed in police custody.
In ordinary circumstances, subject to some comments that I will make, both these questions are questions of the type that individually should be left to the jury. I would do so in this case if they were the only questions and they were not closely connected.”

14 His Honour then makes extensive reference to comments made by various members of the High Court of Australia in Chamberlain & anor. v The Queen (1984) 153 CLR 521. His Honour quotes extensively from the dissenting judgment of Jenkinson J, to which Gibbs CJ and Mason J had referred with approval, in that same case when it was before the Federal Court of Australia. His Honour then continues:

“That passage does not mean that juries are incapable of deciding conflicting expert opinion even in the difficult circumstances of Chamberlain’s case. What that passage relates to is the question of whether a jury is entitled to form a reasonable doubt on the basis of expert evidence, given the relative lack of expert knowledge that jurors can be assumed to have. It is that relative lack of knowledge that is particularly significant when considering the danger of unfair prejudice to a defendant because in relative ignorance a jury may place constructions on evidence which it does not deserve or which ought not to be placed there.”

15 His Honour then proceeds to a citation of the decision of Hampel J in Reg. v Lucas [1992] 2 VLR 109. His Honour picks up from that judgment extensive references made in it to an earlier decision of Maurice J in the Court of Criminal Appeal of the Northern Territory in the matter of Reg. v Lewis [1987] 29 A Crim R 276. These extensive citations culminate in the following passage taken by his Honour from the judgment of Hampel J:

“DNA testing is widely regarded as extremely reliable and discriminating. Its limitations and particularly limits as to the conclusion which can be drawn from the tests are not generally appreciated. The jury has no basis on which it can evaluate the evidence. There is no way the jury can properly weigh the value of such evidence if there is no evidence before it as to the frequency of a match in the general population.”

16   There follow, in the reasons published by Goldring DCJ, the following passages which crystallise his Honour’s process of reasoning and the conclusions to which that process has led his Honour:

“Now, here of course, that is not an issue because it does not apply. But when I apply the principles behind that reasoning to this case, I find that there are two questions, namely, that of the effect of the DNA profile evidence and that of the evidence relating to the custody of the clothing and the blood and if they are to have probative value cannot be separated. Taken together, if accepted, they would assist in proving the presence of the accused ………….. at the crime scene. That is clearly probative value.
While I have said taken separately the issue relating to the expert evidence and that relating to the security of the exhibits might be left to a jury, in my view there is a real danger that because of the combination of the circumstances, namely, the complex nature of the scientific evidence, the complex relationship of that evidence to the evidence relating to how the blood might have come to be on the tracksuit pants and the blood spatter evidence, a jury, even if properly directed, could fail to appreciate either the complexity of the inter-relationship of the various pieces of forensic evidence or the limits that might be placed on the forensic evidence. There is a real danger that the fact finders might be unduly swayed by the “scientific” nature of the evidence to make a decision on an improper basis, particularly to require a lower degree of probability than they would otherwise require.
I therefore rule that under s.137 of the Evidence Act the evidence must not be admitted.”

17   What is thus said gives rise to the following questions for this Court:

1. Has Goldring DCJ made an “interlocutory judgment or order” so as to enliven the jurisdiction of this Court at the particular instance of the Crown and pursuant to s.5F of the Criminal Appeal Act ?

2. If so, should this Court affirm the decision of Goldring DCJ; vacate it; or make some other, and if so what, orders?
Question 1

18 There have been in the past various attempts made by various Benches of this Court, and in the Court of Appeal, to give some practical definition to the concept, as relevant to s.5F of the Criminal Appeal Act, of “an interlocutory judgment or order”. Some of those expressions of opinion can be regarded properly as obiter dicta; and others of them are properly to be regarded as rationes decidendi. A helpful starting point for a consideration of the relevant authorities is the decision of this Court in Reg. v Steffan [1993] 67 A Crim R 506. The judgment of the Court is that of summarises clearly and helpfully the earlier decisions in Reg v Powch (1988) 14 NSWLR 136; Reg. v Edelsten (1989) 18 NSWLR 213; Reg. v. Anderson (unreported, Court of Criminal Appeal, NSW, 12 October 1989); Reg v Rogerson (1990) 45 A Crim R 253; Reg v Groves (unreported, Court of Criminal Appeal, NSW, 2 April 1990); Reg v Waterhouse (1992) 62 A Crim R 59; Reg v Baker (unreported, Court of Criminal Appeal, NSW, 5 April 1993); and, in the Court of Appeal, Chow v DPP (1992) 28 NSWLR 593. 19 The judgment refers, also, to an earlier decision of this Court: Reg v Baily & anor. (1988) 36 A Crim R 30. The decision in that particular case turned upon the view of this Court that proceedings which purported to have been brought regularly pursuant to Part 53 r.10 of the District Court Rules, had in fact been brought irregularly and not in compliance with that Rule. In that regard, Gleeson CJ, speaking for the Court, made these observations:

“I, for my part, am of the view that even if the proceedings had occurred pursuant to r.11 with complete regularity, there would be a large question as to whether the rulings on evidence made by the learned judge constituted an interlocutory judgment or order within the meaning of s.5F of the Criminal Appeal Act . Further, even if they did, there would be a serious question to be addressed as to the principles which this Court ought to follow in considering whether to grant leave to appeal against any such interlocutory order or judgment. However, those important questions do not appear to me to arise in the present case because of the fundamental irregularity of the proceedings before the learned trial Judge; ……………..” (36 A Crim R, 32)

20   The Court, having picked up the foregoing reference to a potential “large question”, says:

“That question was raised squarely in this present case for determination. We can see no distinction between a ruling on evidence made in advance of the trial and one made in the course of the trial. It still cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction. ……………..(R)ulings on evidence may always be altered - although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind.” (67 A Crim R, 511)

21   After some further comments which are not now particularly relevant, the judgment continues:

“Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial, in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s.5F of the Criminal Appeal Act . Even if we were wrong in that conclusion, the fact that the ruling can always be altered means that the circumstances would have to be unusual for leave to appeal to be granted prior to conviction. No such circumstances exist in this case. It was those reasons which led us to decide that leave to appeal against the ruling on evidence should be refused.” (67 A Crim R, 512)

22   There are, in our opinion, two points, each of some significance in the present particular case, to be made about the foregoing authorities. 23   The first point is that each of those decisions concerned an application by an accused person and not by the Crown. In the case of such an application by an accused person, it is always possible to take logically the view that, if the challenged ruling is allowed to stand and a conviction is the ultimate outcome of the trial, then the accused person is entitled as of right to bring on appeal to this Court any challenge made, by reason of asserted error of law, to the conviction. It is worth remembering that the bases upon which, in the case of such an appeal, this Court is required to allow the appeal, are cast by s.6(1) of the Criminal Appeal Act in very wide terms. This Court must set aside the conviction if it is of the opinion “that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, ………”. 24   The Crown has, of course, no comparable right, (indeed, no right at all), to challenge on appeal to this Court an acquittal. 25   The second point concerns the consideration, to which the Court makes specific reference, that “rulings on evidence may always be altered”. That consideration has an obvious significance in the context of an unsuccessful attempt by an accused person to have evidence either admitted or rejected, the practical consequence of that lack of success being that the trial continues so that there is, in a real sense, continuing opportunity for a proper re-visiting of the particular ruling. 26 That particular consideration does not seem to us to run logically in the very different context of a ruling, the practical effect of which is to exclude the whole substance of a particular Crown case. 27 There is, as it happens, one reported decision of this Court concerning a Crown application brought purportedly in pursuance of s.5F of the Criminal Appeal Act: Reg. v Bozatsis and Spanakakis (1997) 97 ACrimR 296. 28 In that matter, this Court was asked to entertain a Crown application in connection with a trial, during the course of which the presiding Judge had ruled inadmissible, as having resulted from illegal or improper conduct of police officers, the whole of the proposed evidence in the Crown case. The presiding Judge had buttressed that ruling by making an order granting a permanent stay of proceedings. The order staying proceedings was plainly “an interlocutory judgment or order” of the kind contemplated by s.5F. It was, therefore, not strictly necessary, in order to establish the relevant jurisdiction of this Court, to consider whether the evidentiary ruling, apart from the order for a permanent stay, was susceptible to appellate review pursuant to s.5F. 29 Nevertheless, Gleeson CJ, speaking for the Court, dealt with that question in a section of his Honour’s judgment, headed: “The jurisdictional issue”. So far as is now relevant, the following points seem to us to emerge from the Court’s approach as explained in the judgment of Gleeson CJ: 30   First, although the initial legislative impulse behind section 5F concerned a perceived need to deal with interlocutory applications for stays of proceedings in criminal cases, there is no warrant for reading down section 5F as in fact enacted, so as to confine its operation to appeals against decisions concerning such applications. 31 Secondly, there is no simple and absolute test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other. In particular, it is not simply and absolutely the case that a judgment or order is always to be characterised as: “a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings”. Gleeson CJ observes in the latter regard that: “……..(R)ulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference”. 32   Thirdly, and referring to a statement made by the primary Judge that he was making an order excluding “all prosecution evidence”, Gleeson CJ says:

“What is important is not his Honour’s use of the word ‘order’, but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order.” (97 A Crim R, 304)

33   At the hearing before this Court learned counsel for the respondent sought to distinguish Bozatsis and Spanakakis on the following grounds:

1. That the present case involves the rejection of a discrete area of evidence, and not the rejection of the entire Crown case;

2 That in the present matter there has been no order for a stay of proceedings;

3. That sections 135 and 137 of the Evidence Act , being the sections of that Act upon which Goldring DCJ expressly relies, do not involve a balancing of competing public interests such as is required by s.138 of the Evidence Act , which latter section, it was submitted, was critical to the reasoning that underpins the decision in Bozatsis and Spanakakis ; and

4. That Goldring DCJ, unlike the trial Judge in Bozatsis and Spanakakis , has given detailed and comprehensive reasons for his Honour’s decision to exclude the relevant Crown evidence.

34   As to submission 1, we are of the opinion that this submission is wrong in fact. 35   During the course of argument before this Court, there was a deal of to-ing and fro-ing as to the correctness in fact of the proposition, fundamental to the case put to this Court by the Crown, that the practical effect of the ruling of Goldring DCJ is to prevent the Crown case from going to the jury. 36   In answer to a question: “Is it your case that the present application of the Crown cannot succeed because the foundation on which it is built is demonstrably wrong in that the ruling now challenged does not have the final effect for which the Crown contends?”, learned counsel for the respondent replied that he: “………didn’t understand the Crown to be putting that proposition in those terms as being fundamental”. Pressed that the Crown submission had been precisely to the effect suggested in the earlier question, counsel submitted that the challenged ruling “…….. does not in fact destroy the Crown case, there remains other evidence available to the Crown”. Asked whether the written submissions that he had previously put in on behalf of the respondent pointed out the nature and scope of the additional evidence, counsel responded as follows:

“………… I don’t believe it is. As I say, I understood the Crown’s submission as conceding that a prosecution would inevitably fail and that that is a different thing to saying as a result of this ruling there is no evidence. I understood the Crown’s submission that the jurisdiction of this court was based upon the practical effect of denying the Crown any possibility of obtaining a conviction. My own opinion is I agree with the Crown, the evidence which remains available to the Crown I don’t think would be sufficient to sustain a conviction. However, there remains other evidence available.”

37   These passages are supplemented usefully by a reference to an exchange between learned counsel for the respondent and Goldring DCJ in the immediate aftermath of the publishing by his Honour of the reasons for his Honour’s decision to exclude the relevant Crown evidence. Learned counsel for the respondent, and the Crown Prosecutor, had various things to put to his Honour concerning the practical effects of his Honour’s exclusion of the Crown evidence. His Honour himself remarked:

“………….. (I)f what …………(counsel) ……….. says about Bozatsis is right, if there ……….(the trial judge in that case) ……… excluded all the Crown case on the ground it was improperly obtained, that may be a ground for distinction. It may be substantially what I’d done but that was not my understanding on the basis of it.” (see transcript for 10.8.99 at 12(10) - emphasis added)

38   It seems to us that a fair view overall of the material to which we have referred justifies the drawing of a rational inference that the substance of what Goldring DCJ has done is to destroy, in every real and practical sense, any prospect of the Crown's presenting to the jury the substance of a case available to it and tending, if accepted, to the proof beyond reasonable doubt of the respondent’s guilt as charged.

In Bozatsis and Spanakakis the form of the order there made was the rejection of the entire Crown case. However, as stated by Gleeson CJ in the passage extracted above, the trial Judge “was, in substance , refusing to permit the Crown to seek to make a case against the appellant” [emphasis added]. As the Chief Justice emphasised, the issue is one of substance rather than form. The substance of the order made by his Honour in the circumstances of the present case was the rejection of the entire Crown case.

39   As to submission 2: we reject this submission. The short answer to it is to be found, in our opinion, in the passage already quoted at paragraph 32 from the judgment of Gleeson CJ in Bozatsis and Spanakakis at 97 A Crim R, 304. 40 As to submission 3: it is, in our opinion, plain on the face of sections 135, 137 and 138 that each of those sections propounds a discrete judicial discretion. And it is correct, in our opinion, to say that the discretions are not only discrete, but involve different balances of different nominated factors. It remains the case, however, that each of section 135 and 137 speaks in precise terms of weighing probative value, on the one hand, and other stipulated dangers, on the other hand. In our opinion, the decision in Bozatsis and Spanakakis, insofar as it deals with the approach of the trial Judge in that particular case to the requirements of section 138 of the Evidence Act, is not dealing with the jurisdictional issue which we are now discussing. It deals, rather, with the proposition that, granted jurisdiction in the first place to inquire into the sustainability of the trial Judge’s decision, there was no assistance forthcoming from the expressed reasons for judgment, which failed entirely to expose any coherent process of reasoning on the issues arising for decision upon the proper application to the particular facts of the particular requirements of section 138. 41 As to submission 4: we reject this submission for the reason that it is the right answer to the wrong question. The right question is not whether Goldring DCJ exposed, in coherent form, his Honour’s process of reasoning. The right question is, rather, whether that process of reasoning, and the decision to which it gave rise, had such an effect upon the Crown case at trial as would enliven the jurisdiction of this Court pursuant to section 5F of the Criminal Appeal Act. 42 For the whole of the foregoing reasons, we have come to the conclusion that, on the particular facts of the present case, the Crown has established jurisdiction in this Court to review, in accordance with section 5F of the Criminal Appeal Act, the ruling made by Goldring DCJ on 9 August last. 43 In the light of that conclusion, it is, in our opinion, important to add some additional observations. 44 It is trite that this Court will not interfere, save in the most exceptional circumstances, with the orderly course of proceedings at trial in criminal cases, whether the court of trial is the Supreme Court or some other court. It is, on the one hand, manifestly in the interest of an accused person that his or her trial should proceed according to law and in an orderly, disciplined and efficient fashion, uninterrupted by what are no more than opportunistic appeals to the jurisdiction, real or imagined, of this Court. It is, on the other hand, of no less importance to the Crown, as representative of the public interest to see that justice is done in criminal cases, to have prosecutions conducted in the same orderly, disciplined, efficient and uninterrupted way. Nothing in what we have said, - (and, for that matter, nothing in what we will hereafter be saying), - should be understood as giving any countenance to attempts, whether by the Crown or by those representing accused persons, to obscure those fundamental principles by mere forensic artifice. 45 The following observations of Brennan J in the course of considering the circumstances in which a court should order a stay of proceedings are also applicable to identification of circumstances in which a court by its rulings effectively deprives the Crown of the ability to put a case against a particular accused. His Honour said in Jago v The District Court of New South Wales (1989) 168 CLR 23 at 49-50:

“Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdictions, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendancy of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reason for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become common place, it would not be long before all courts would forfeit public confidence. Granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.”

46   Had it been clear, in the present case, that the Crown case had been weakened, but not at all effectively destroyed, by Goldring DCJ’s relevant decision, we would have followed unhesitatingly the approach of Hunt CJ at CL in Steffan. 47   We are persuaded, however, that what Goldring DCJ has done in the present particular case goes beyond, and well beyond, the giving of a mere ruling on evidence, the effect of the ruling being to inconvenience, or even to weaken, the Crown case, but in an overall context that is sufficiently fluid to permit of a subsequent review , and if appropriate reversal, of the ruling.

Question 2

48 In dealing with this question, it is, of course, important to bear in mind that what the Court is now being asked to do is to review, and to reverse, a discretionary decision of Goldring DCJ. This is not something to be done lightly. The relevant principles are not in doubt, and they can be re-stated sufficiently for present purposes in the form of the following extracts from the judgment of this Court in Reg. v Alexandroaia (1995) 81 A Crim R 286 at 290:

“An appeal based upon the judge’s refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge’s exercise of discretion, it is under a duty to review the order made.”

49   The essence of Goldring DCJ’s reasoning has been set out earlier at paragraph 16. In applying to that essential reasoning the principles enunciated in Alexanandroaia, it is, in our opinion, necessary to be clear about certain fundamental propositions which we would express as follows:

1. The status in our system of criminal justice of a jury at trial is of absolutely fundamental constitutional legitimacy and importance. The empanelling of a lay jury, chosen at random from the general body of citizens, to be the sole tribunal of fact is not some irksome survival from a feudal past, whether real or imagined. The contribution of lay juries to our system of criminal justice is the lynch-pin of that system. The importance of the jury in our criminal justice system is such as to justify attributing to the jury a constitutional significance even where there is no express constitutional protection such as that provided by s.80 of the Commonwealth Constitution. Statutes will not be interpreted, therefore, as impinging on the right to trial by jury unless there is clear and unambiguous language to that effect.

2. It would be to close one’s eyes to what is going on in contemporary society not to recognise that there is a body of articulate opinion which holds that a lay jury drawn at random in accordance with current principle and practice is, more or less as of course, unable to be entrusted safely with the decision of questions of fact which are said to be complex, or of a highly technical nature. There is, more often than not, more than just a touch of elitism and of intellectual condescension in the point of view. But the real flaw in the point of view is that it fails wholly to take account of the everyday practical experience of the courts in their dealings with juries empanelled in criminal trials.

3. That experience would, in our own observation and understanding of these matters, have to acknowledge, and to make allowance for, the case of the jury that fails, as a collegiate body, to do its sworn public duty. The same would have to be said about individual jurors in particular cases. But it seems to us that the fair position is that such departures from proper jury standards are very much the exception rather than the rule. It is, in our opinion, demonstrably true as a general proposition that the average jury, if properly assisted and directed, will do diligently and conscientiously what the law asks of it.

4. That any jury in any criminal trial requires proper direction as to the relevant law, and proper practical assistance otherwise, entails a significant burden upon all the professionals who are engaged in the conduct of the particular trial. The brunt of that responsibility will be borne by the presiding judge whose duty it is to see that the jury receives proper direction and assistance, and receives it with a proper patience and courtesy. There is a different, but no less compelling, professional duty resting upon those who prosecute and defend in the particular case.

5. It is one thing to say that, in such a case as is exemplified by the present particular case, it will be, obviously, difficult to put into simple lay language the concepts which the jury must have firmly in its grasp; and to assist the jury with a similar clarity and simplicity to apply those concepts to the evidence adduced in the trial, both by the prosecution and by the defence. It is, however, an entirely different thing to take it as, more or less, self-evident that the jury, even if given that assistance, will be either unwilling or unable, or both, to carry out in a proper way the jury’s critical fact-finding function.

50 The way in which practical expression is to be given in a particular case to the foregoing general propositions is exemplified by the decision of Mullighan J, of the Supreme Court of South Australia, in Reg v Jarrett (1994) 73 A Crim R 160. Mullighan J’s analysis of relevant principle and practice is, in our respectful opinion, clear and correct. It is not necessary for present purposes to quote in particular more than the following brief excerpt:

“…………………. (T)here can be no reason to exclude admissible evidence except in the exercise of discretion. The resolution of conflicts in expert testimony and the assessment of the weight to be attached to it is the function of the jury. If there is no reason to exclude evidence in the exercise of discretion, it should be admitted and appropriate directions given to the jury as to how any conflicts in the evidence should be approached and what use can be made of the evidence which is accepted.” (73 A Crim R, 173)

51 In the present particular case, Goldring DCJ recognised, correctly in our respectful view, that the challenged DNA evidence had clear probative value. Indeed it did. If accepted by the constitutional tribunal of fact, it was capable of leading to a conclusion, reached beyond reasonable doubt, that the present respondent had been present at, and, to whatever particular extent, involved in, a vicious physical assault by three assailants against one victim. 52 Against that probative value, Goldring DCJ was required, insofar as s. 137 of the Evidence Act was concerned, to consider whether the clear case in favour of admitting the evidence was, so far as is at present material, “outweighed by the danger of unfair prejudice to ………..(the respondent)”. In connection with the proper exercise of that statutory discretion, his Honour was required to bear in mind, among other things, a proposition that cannot be put more clearly and succinctly than is done in the relevant portion of the Australian Law Reform Commission Report which is quoted in Odgers: Uniform Evidence Law: 3rd Edition at 447:

“There is some uncertainty over the meaning of ‘prejudice’. But, clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.”

53   If it be asked, next, quite how his Honour saw the admission of the challenged evidence as giving rise to prejudice in the senses described by the Australian Law Reform Commission, then, with all due respect to his Honour, we cannot see any convincing explanation except for his Honour’s expressed perception that there was something so complicated about what the jury would have to decide that it would be in some way unfair to leave the decision to the jury at all. 54   In our respectful opinion, this approach over-stated the complexity of the essential questions for the jury; and failed to take into proper account the fundamental principles which are canvassed in the preceding paragraph 49. 55   The essential questions for the jury, if properly formulated and explained by reference to the available evidence, were in our opinion no more essentially complex or difficult than questions of fact that are routinely, and correctly, left to juries in criminal cases. 56   The first question for the jury was whether, upon the whole of the evidence, the jury thought that it was a reasonable possibility that the blood spots on the track pants and shoes of the respondent had been placed there by the investigating police after they had taken possession of those items from the respondent. We would think that few jurors of ordinary good sense and worldly wisdom would not understand, especially in the wake of the revelations of the Royal Commission recently conducted by Wood CJ at CL of this Court, (as his Honour now is), that there is nothing inherently fantastic or incredible in the proposition that investigating police have been known to fabricate evidence, both oral and physical. The resolution of the question whether that had happened in the present case, depended essentially, as it seems to us, upon what the jury made of the evidence of the relevant police witnesses. We cannot see anything unusual, or prejudicial in any relevant sense, in leaving such a question to a properly instructed jury. 57   Assuming that the jury was prepared to accept that there was no reasonable possibility of fabrication of the blood spots, then the remaining question of fact for the jury was whether the Crown had persuaded the jury beyond reasonable doubt that two inferences, adverse to the respondent, were rationally available: first, that the blood spots came from the victim of the assault; and secondly, that the only rational explanation for the presence on the respondent’s clothing of the victim’s blood was that the respondent had been one of the three assailants. We acknowledge that there was, as to the first of those matters, a conflict of expert opinion evidence. We are unpersuaded, however, that there is anything extraordinary about the conflict in the sense that a careful and sensible jury, properly directed as to the relevant law and as to the relevant evidence, could not have decided in a reasoned and responsible way whether or not the Crown had demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence. 58 Quite apart from Goldring DCJ’s expressed view about the capacity of the jury to understand the DNA evidence, and the errors to which we have pointed in that connection, we are of the opinion that his Honour applied, in any event, the wrong test in connection with the exercise of the discretion arising under s.137. 59 When at the conclusion of his judgment his Honour came to apply s.137, he did so in the passage quoted above at paragraph 16. In that passage, his Honour made it clear that he was applying a test as to what a jury might do as satisfying the statutory formula of “the danger of unfair prejudice”. This appears clearly from his Honour’s references:

- “A real danger that the fact finders might be unduly swayed by …………” .[emphasis added]

- “A jury, even if properly directed, could fail to appreciate ………………” . [emphasis added]

60   In our opinion, by applying to the statutory formula, - “the danger of unfair prejudice”, - a test of mere possibility, his Honour erred in law. Section 137 requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. It is not sufficient to establish that the complexity or nature of the evidence was such that it created the mere possibility that the jury could act in a particular way. His Honour applied the wrong test. 61 The focus of s.137 is evidence proposed to be “adduced by the prosecutor”. In the present case, the evidence of that character was contradicted by scientific evidence to the contrary. Even if we were to apply a test of mere possibility to the situation that presented itself to his Honour, it is not clear to us how his Honour came to the conclusion that he reached. 62   The test that a jury “might be unduly swayed by the ‘scientific’ nature of the evidence to make a decision on an improper basis” was derived from the judgments quoted by his Honour earlier in his decision. Those references were concerned with the undue weight that may be given to scientific evidence by reason of its very concreteness. They were not concerned with a situation such as that presented to his Honour where there was a real conflict of scientific evidence. That is quintessentially a jury question. 63   It is not, in our opinion, appropriate to infer that a jury even “might” be affected in a prejudicial way by reason of the “scientific” nature of the evidence, where such evidence is contradicted by other “scientific” evidence. 64   There is nothing so extraordinary about the conflict in the evidence presented in this case which would justify the conclusion that a careful and sensible jury, properly directed as to the relevant law and as to the relevant evidence, could not decide in a reasoned and responsible way whether or not the Crown had demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence. 65   We have come, therefore, to the conclusion that the statutory discretions exercised by Goldring DCJ miscarried. We are satisfied that the result of that miscarriage has been such an injustice to the Crown at trial as would warrant the intervention of this Court. 66   In considering what practical steps should now be taken by this Court, we have had regard to the approach taken by the Court in Bozatsis and Spanakakis. In that case, the orders made by the Court vacated the relevant order of the primary Judge and remitted the matter to the District Court to be dealt with according to law. That approach was taken because, as Gleeson CJ explains in the concluding paragraphs of his Honour’s judgment, it had not been demonstrated “that, on a proper approach to the facts of the case and the relevant discretionary considerations, a judge would necessarily reach a conclusion contrary to that of …..(the primary judge)”. 67   The present particular matter is not, in our opinion, on all fours in that respect with Bozatsis and Spanakakis. We are, however, of the opinion that the proper course is to make orders of the kind made in Bozatisis and Spanakakis. 68   We make, therefore, the following orders:

1. That the appeal be allowed.

2. That the order made by Goldring DCJ on 9 August 1999 excluding, pursuant to s.137 of the Evidence Act 1995 , the evidence sought to be led at trial by the Crown on the subject of the location and DNA analysis of blood spotting on the respondent’s clothing, be vacated.

3. That the trial of the respondent proceed in conformity with the foregoing orders and otherwise according to law.

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