R v Rye
[2006] VSC 5
•6 April 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1403 of 2005
| THE QUEEN |
| v |
| CRAIG STEVEN RYE |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-5, 8-12 August 2005 | |
DATE OF RULINGS: | 1-3, 8 August 2005 | |
DATE OF REASONS: | 6 April 2006 | |
CASE MAY BE CITED AS: | R v Craig Steven Rye | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 5 | |
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Criminal Law – Ruling – Application to totally exclude evidence of mitochondrial DNA not granted
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Accused | Mr L. Lasry Q.C. with Ms P. Murphy | Robert Stary & Associates |
HIS HONOUR:
These are the reasons for my ruling as to the limited admissibility of certain DNA evidence which the prosecution proposed to lead at the trial of Craig Rye charged with the murder of Sharon Judd on or about 17 January 2002. The evidence was that of April Smith, a forensic scientist. It was not evidence of the kind now routinely given, as to nuclear DNA, but was as to mitochondrial DNA. Nuclear DNA is present in the cell nucleus. Mitochondrial DNA is present in the mitochondrion, the component of a cell responsible for its energy production. Mitochondrial DNA is inherited solely through the maternal line. That means that mothers, and their children, and the full siblings of both mother and child, and maternal cousins, and so on, will have the same mitochondrial patterns. Such patterns cannot be distinguished from each other, as is possible with nuclear DNA profiles. That lack of a distinguishing character, the absence of uniqueness, has a number of consequences. On the one hand, it reduces the capacity for database comparison and consequent statistical evaluation. On the other hand, mitochondrial DNA is present in much higher numbers of copies than nuclear DNA. There is thus a larger amount of starting material in the cells. It is also a smaller molecule. It is thus less prone to degradation.
Mr Lasry Q.C., who appeared with Ms Murphy for the accused, opposed the leading of any of the evidence from April Smith. Ms Cannon, who appeared for the prosecution, argued for its acceptance in full. Ultimately, I ruled that most but not all of the evidence could be led. In short, as to what I excluded, I ruled that it was not appropriate to lead evidence of comparative statistical evaluation, as distinct from evidence of a count of previously accumulated different profiles.
In the early morning of Sunday 20 January 2002, a neighbour of premises at 10 Tamar Street, Ringwood North, saw signs of fire at number 10 and called “000”. When the fire was extinguished, the charred remains of the body of the deceased, Sharon Judd, were found on the remains of a bed. The findings of Dr Michael Burke, the forensic pathologist who carried out the autopsy, included: that the remains were consistent with the body having been burnt severely in a fire; that the cause of death was neck compression; that the pressure could have been through the use of hands or of some kind of ligature; that the death occurred before the fire; that the injuries included an 8 cm laceration along the vagina extending into the anus; that there was a pubic hair at the midpoint of that laceration; that associated with the laceration was some bruising; that the laceration and bruising were caused by blunt force during life; and, that it was probable that the body was in the early stages of decomposition at the time of the fire. Dr Burke set aside for forensic testing a number of items. The items included the pubic hair located in the vagina.
The prosecution proposed to lead DNA evidence from each of Debra Ryan and April Smith. No objection was taken to the leading of the evidence of Debra Ryan. Items relevant to the trial, for the nuclear DNA analysis of which she was responsible, included: first, samples labelled as having been provided by persons including Craig Rye and Sharon Judd; secondly, swabs and microscopic slides of smears labelled as vaginal and otherwise taken at the autopsy of Sharon Judd; and thirdly, a hair labelled as having been taken from the vagina of Sharon Judd. The analysis of Debra Ryan led to her concluding that no male DNA and no sperm could be detected on any of the vaginal or other swabs or slides. She could say as to the hair, that it was a human body type hair. The root of the hair was cut off to test it for nuclear DNA. No nuclear DNA profile could be obtained from the root. The rest of the hair was retained in a sealed container.
The position as to the evidence of April Smith was treated very differently. On 1 August 2005, before the jury was empanelled, she gave evidence on a voir dire. She amplified her evidence by referring to Powerpoint slides. She indicated that she had not previously given evidence of any kind before. Before she was called, I indicated to counsel that I had done some preparatory reading, including: R v Lisoff [1999] NSWCAA 364; R v Loeber [2004] NSWSC 293 (14 April 2004); R v Juric (2002) 4 VR 411; R v Juric (No. 2) (2003) 142 A Crim R 228; R v McClean and McCready [2001] Northern Ireland Court of Appeal 32 (28 June 2001); and R v Shepherd [2005] Northern Ireland Court of Appeal 19 (28 April 2005). After April Smith gave her evidence on the voir dire, I listened to submissions made by Mr Lasry who argued for the exclusion of her evidence. I then indicated briefly why I did not accept those submissions. On 2 August, Mr Lasry asked me to revisit my ruling, particularly with reference to what had been said by Nettle J in Juric (No 2). On 3 August, after reconsidering what had been written by Nettle J, and said by Mr Lasry, I indicated to Ms Cannon that I felt a degree of uneasiness about the assumptions made by April Smith for the purpose of providing her comparative statistical evaluation, and that I would prefer to hear further evidence from April Smith on that issue. On 8 August, April Smith gave further evidence on a voir dire before me. After hearing further submissions, I ruled that she not be permitted to give evidence of any comparative statistical evaluation.
April Smith later that day gave evidence before the jury. It was supported by the same Powerpoint slides, but with an appropriate exclusion. The substance of that evidence was as follows. She had worked for more than 6 years with the Victorian Institute of Forensic Medicine, both on nuclear DNA and mitochondrial DNA analysis. While nuclear DNA analysis is effectively a means of providing unique identification, that is not the case with mitochondrial DNA, which every human inherits from his or her mother. Mitochondrial DNA can be useful where the item to be analysed, such as a human hair, has no or insufficient biological material to analyse for nuclear DNA. There are thousands of mitochondria to a cell, as against only one nucleus. April Smith explained both the processes used to prepare an item for analysis for mitochondrial DNA, and the precautions taken to avoid or minimise contamination, and why she was satisfied that the testing and analysis in this case were to be viewed as reliable. One such precaution involved the use of a reagent blank. She explained how two regions of the DNA were subjected to testing. The analysis processes involved extracting DNA from an item, mixing the DNA from the items, employing a cutting enzyme and using gel phosphoresis to prepare results for visual comparison. She explained why some mitochondrial sequences seen on such visual comparison can be more common than others. She explained why statistical calculations were more readily carried out with nuclear DNA than with mitochondrial DNA.
The evidence of April Smith proceeded from the general to the particular. She gave details of the materials that she received relevant to the instant case. Item 1 was labelled as DNA extracted from a swab taken from Craig Rye. Item 2 was labelled as a pubic hair taken from the vagina of Sharon Judd. Item 3 was labelled as a dried blood sample taken from Sharon Judd. April Smith carried out an analysis of the mitochondrial DNA prepared from the 3 items. She explained that her analysis found that there had been contamination at one specified region, but no or immaterial contamination at a different specified region. Her analysis of Items 2 and 3 revealed that there was a difference between the mitochondrial DNA profiles derived from those two items. Sharon Judd could be excluded as the source of the Item 2 hair. Her analysis of Items 1 and 2 revealed that there was no difference between the mitochondrial DNA profiles derived from Items 1 and 2. She said that her analysis did not warrant the conclusion that Craig Rye had been identified as the source of the hair, but only that Craig Rye could not be excluded as the source of the hair. She said that the mitochondrial DNA profiles derived from items 1 and 2 had not appeared before in the 257 mitochondrial DNA profiles recorded in the Institute’s database.
The submissions of Lasry as to the exclusion of the evidence, either in whole or in part were, put shortly, as follows: the evidence was of a complex scientific nature that would be difficult for a jury to understand; the difficulties would be compounded by reason of April Smith not having had any previous experience in giving testimony; she had no formal statistical training; the evidence did not have any or any significant probative value; the leading of the evidence had a potential to cause prejudice to the accused in a number of ways; one of the undue risks was that the jury would speculate inappropriately; another was that the jury would jump to the conclusion that the accused had engaged in sex with the deceased; another was that the jury would misunderstand the limitations of any statistical evaluation; another was that even the evidence of there being 257 different mitochondrial DNA profiles was susceptible of being misinterpreted; as April Smith recognised, there were risks of contamination and mutation; and, because the original sample no longer existed, there could not be further testing.
In each of McClean and McCready, at [3] and [4] Loeber, at [16], [21] and [40] and Shepherd, at [5] and [32] there is reference, but little more than passing reference to, the admission of evidence of mitochondrial DNA. There is nothing to suggest that the evidence was seen as being unusually complex. In McClean and McCready, at [4] there is a reference to the database for comparison of the sample of mitochondrial DNA being not large enough to provide conclusive proof. In Loeber, there is no reference to any database, and it is simply noted at [16] that the DNA analysis showed that the defendant could not be excluded as a source of a hair located on a pillowslip. In Shepherd, it was noted at [5] that a mitochondrial DNA match between profiles derived from Shepherd and a hair on a cardigan provided moderately strong support for the proposition that the hair originated from Shepherd or a person who was maternally related to him.
The decisions in R v Lisoff , R v Juric, and R v Juric (No. 2), and also R v Noll [1999] 3 VR 704, warranted my attention because of what was said there as to matters of principle including: the need for the factual basis for opinions being established; the role of the jury in evaluating DNA evidence; the assessment of probative value and prejudicial effect; and the assessment of the probative value of statistical evidence. Where competing expert opinions are available to the jury, as in the Juric cases, comprehension on the part of jury members can be assisted by the cross-examination of two or more experts. But the risk of prejudice is not necessarily increased by the absence of a competing opinion. During cross-examination at the preliminary hearing, April Smith addressed the issues of contamination, mutation and the like as matters addressed routinely without having any realistic potential to affect the reliability of her evidence. If such matters were not appropriately left simply to cross-examination before the jury, because of the potential for very serious error, the engaging of an expert to confront April Smith, by advancing a strongly contrary opinion, would have to be seen as the appropriate course.
Putting to one side first the evidence as to comparative statistical evaluation, which I ultimately excluded, and secondly, the potential for prejudice of the “counting” evidence, I had no reservations as to the evidence of April Smith having probative value that outweighed any potential for prejudice. The evidence was not significantly different from the nuclear DNA evidence routinely given. Although she had not given such evidence before, for every expert there has to be a first time. She had more than a rudimentary knowledge of statistics, although ultimately I was not satisfied that she had sufficiently researched the basis for the assumptions that she had made, based on the statistical work of others who had prepared the database, which her work was supplementing.
On the second voir dire April Smith explained how she had informed herself before making her assumptions as to the status of the database upon which she had relied for her comparative statistical analysis. In short, she had relied upon her superiors and predecessors. She had not made her own independent review. The relative inadequacy of her research as to the reliability of the material which she had used to found her assumptions would have been exposed in cross-examination. However, I considered that it was appropriate to exercise my discretion to exclude the evidence.
I do not accept that there is a clear risk of prejudice arising from the jury being troubled as to what it was to make of the “counting” evidence, namely that the matching mitochondrial DNA profile derived from items 1 and 2 had not appeared before in the 257 mitochondrial DNA profiles recorded in the Institute’s database. Clearly, a jury will be assisted more when statistical evidence is presented in the fullest possible context. However, in my assessment, a limited “counting” context can be moderately helpful, provided the numbers are not patently very low. In Juric (No 2), Nettle J noted that the probative value of a match ratio of one in twenty was not much greater than nil. Although his focus and my focus are not really comparable, there is still a significant difference between 20 and 257.
Finally, I would note that this was a case where the part played by the DNA evidence in the prosecution case was marginal, not critical. In that regard, it was like McClean and McCready, Loeber, and Shepherd. Put shortly, this was a “strand in a cable”, not a “link in a chain”, case. It was not necessary that the jury be satisfied as to it beyond reasonable doubt. See Noll at 711 [25]. Evidence of mitochondrial DNA profiling, like of DNA nuclear profiling, does not establish that the accused is the offender. The presence of a DNA profiling match may be seen to make it somewhat more likely that the accused could be linked to an item that could be linked to the offence. In my experience, not only are forensic scientists called to give DNA profiling evidence at pains to emphasise that important limitation, but prosecutors and defence counsel also use addresses and questions to stress it, and, in summarising the evidence and the addresses, and often otherwise as well, the presiding judge stresses it. Accordingly, there is little risk that a jury would engage in inappropriate prejudicial speculation, and less risk again that it would have any impact on their verdict.
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