R v St
[2022] VSC 450
•11 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0327
| THE QUEEN | Crown |
| v | |
| ST | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 June 2022 |
DATE OF RULING: | 11 August 2022 |
CASE MAY BE CITED AS: | R v ST |
MEDIUM NEUTRAL CITATION: | [2022] VSC 450 |
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CRIMINAL LAW – Accused charged with manslaughter, violent disorder and affray – Accused one of a group of ten who attacked the deceased – Whether accused inflicted the fatal stab wound.
EVIDENCE – Accused of Burmese ethnicity – All members of the group of ten of an ethnicity other than Caucasian – Whether DNA evidence of the likelihood ratio of the accused being a contributor to the mixed DNA profile on the handle of a knife obtained using the Australian Caucasian Database should be tendered – Likelihood ratio of the accused being a contributor to the mixed DNA profile using the Australian Asian Database provides slight support for that proposition – Whether probative value of the Australian Asian Database likelihood ratio is low – Whether that evidence should be excluded as being unfairly prejudicial – Evidence of the Australian Caucasian Database likelihood ratio excluded – Evidence of the Australian Asian Database likelihood ratio admitted – Evidence Act 2008, ss 55 and 137.
EVIDENCE – Whether evidence of ‘escalating gang violence’ and of an incident on the day prior to the fatal attack relevant – Whether prejudicial effect of evidence outweighs its probative value – Evidence excluded - Evidence Act 2008, ss 55 and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr E Dober | Office of Public Prosecutions |
| For the Accused | Mr R Edney with Ms S Stafford | Stary Norton Halphen |
HER HONOUR:
ST is charged on indictment with manslaughter, violent disorder and affray.
The charges arise out of an incident at the Brimbank Shopping Centre on 16 June 2020 in which Solomone Taufeulungaki (‘the deceased’) was physically assaulted by a group of ten youths and suffered a fatal single stab wound to the chest. Both ST and the deceased were 15 years of age at the time.
The Crown case is that ST inflicted the stab wound (count 1); that he was part of a group of at least six who together both threatened and used violence with a common intention of assaulting the deceased and whose conduct, taken together, caused injury (count 2); and that he used unlawful violence that would cause a person of reasonable firmness to be terrified (count 3).
Pre-trial, the defence argues for the exclusion of two items of evidence. The first is evidence of the likelihood that ST is a contributor to the mixed DNA profile on the handle of the knife found next to the body of the deceased. The second is evidence of an incident at the Brimbank Shopping Centre on the afternoon of 15 June 2020, said by the Crown to be the trigger or spark leading to the 16 June 2020 events.
Crown allegations
So as to understand the issues, it is necessary to detail the Crown allegations. The following is drawn from the Further Amended Summary of Prosecution Opening filed by the Crown on 22 June 2022.
ST is said to be associated with two Western suburbs gangs: ‘BH’ or ‘Brotherhood’ and ‘97’. Those gangs are allied in conflict against another Western suburbs gang, ‘VB’ or ‘Vavau Brothers’. Younger members of that group are known as ‘VB Youngins’.
The deceased was in year 10 at Victoria University Secondary College. He was friends with members of VB Youngins.
The events of 16 June 2020 are said to involve ST and nine other young males (collectively referred to as ‘the ten accused’): Taataa Tafa (aged 20 years)[1], IT (aged 14 years), DP (aged 14 years), CTN (aged 17 years), JRP (aged 13 years), NT (aged 15 years), VN (aged 16 years), AK (aged 16 years) and AP (aged 13 years).
[1]At the time of the alleged offending.
The following paragraphs of the Prosecution Opening detail the evidence of 15 June 2020 sought to be excluded.[2]
Background
7.There was escalating conflict between members of the competing gangs in the days leading up to the fatal incident.
[2]The paragraphs are not numbered sequentially as some material has been excised by agreement.
Monday 15 June 2020
15.On Monday 15 June 2020 at approximately 4.26 pm five members from ‘BH/97’ – including [ST, JRP] and [VN] – attended at the Brimbank Shopping Centre near the Woolworths carpark area. [ST, JRP] and [VN] walked inside the shopping centre leaving behind the other two members.[3]
16.A short time later, further members of the ‘BH/97’ gang, including [CTN], arrived and greeting the two remaining members outside. [CTN] was present for a short period of time before entering the shopping centre.
17.At approximately 4.36 pm [SK, CK] and a number of other friends exited a bus at the Brimbank Shopping Centre bus stop. The group walked towards the Woolworths carpark area where the two remaining members from the BH/97 gang were situated.
18.SK asked one of the remaining members if they were from ‘BH’, and upon confirmation, a fight ensued. The two remaining BH/97 members were outnumbered and assaulted by approximately twelve people including [SK] and [CK]. The deceased was not one of them. As the fight was occurring, [CTN] exited the shopping centre where he was chased and subsequently assaulted.
19.Several witnesses filmed the incident on their mobile phones and a number of these videos were later uploaded to social media.
20.Whilst this occurred, [ST], [JRP] and [VN] attended the Target store inside the centre. The time was 4.30 pm.
22.At approximately 4.44 pm police arrived at the Brimbank Shopping Centre in response to the altercation, at which time the groups had dispersed. [JRP] and [ST] approached the location of the incident where they observed police in attendance.
[3]The identities of the ‘other two members’ are not detailed in the Opening. But, the evidence comes from CCTV footage.
The events of 16 June 2020 unfolded at various locations.
At about 3.10 pm the deceased and two of his friends (SO and KG) left their school campus in St Albans to walk to the bus stop on Kings Road, Deer Park. En route they were confronted by the ten accused. They asked if the deceased and his friends were part of VB and if they were involved in the fight the day before. The deceased and his friends answered both questions in the negative and began to walk away. They were then set upon by the ten accused.
VN hit the deceased with a baseball bat. IT tried to kick him to the head. Others punched and waved weapons at the deceased, SO and KG. The three eventually ran from the area.
The ten accused then caught a bus to the Brimbank Shopping Centre, arriving at about 3.34pm. They met two others and remained around the Australia Post boxes near the Woolworths entrance of the shopping centre.
At about 3.39pm Tafa left the group and approached four youths in school uniform. One of those youths was JS. JS and his friends observed Tafa approach and began running through the shopping centre. They were chased by the ten accused. JS hid inside a store and called 000 while his friends continued to run. They were not caught.
The ten accused split into two groups. One group searched the inside of the centre. JRP and NT, who were part of that group, asked KS (a school friend of the deceased’s) if she knew where the deceased was. The other group, which included ST, searched outside the shopping centre.
The ten accused then reassembled and went to the Deer Park Skate Bowl opposite the shopping centre. There the group discussed an incident in which BH/97 members had been assaulted. This excited anger. The deceased and his friends were blamed. DP also said that he had been previously assaulted by the deceased.
The ten accused returned to the shopping centre.
Meanwhile, the deceased and KG were collected by the latter’s mother, Vaifoa G, his brother, CG, and his uncle, Luke Mears. Vaifoa intended to drive the deceased home. En route KG received a telephone call advising that his younger brother was being chased by the ten accused at the Brimbank Shopping Centre.
In response, Vaifoa drove to the Brimbank Shopping Centre, arriving at about 4.00 pm. All of those in the car got out to search for KG’s younger brother.
CG, who was with Mears, saw the ten accused and called to them. A discussion took place during which Tafa pointed a baseball bat at CG, JRP produced a pocket knife and VN produced a large kitchen knife. After discussion, Tafa agreed to leave CG and KG’s brother alone and told the others ‘no one touch his brother’.
As the discussion was taking place, the deceased came into sight. One of the ten accused saw him and yelled ‘Look, there’s Solo’. Either ST or Tafa yelled ‘get him’.
Each of the ten accused ran towards the deceased. VN and ST each were in possession of a knife. Tafa had a baseball bat. Both JRP and IT wielded an extendable black baton.[4] AP had a glass bottle held by the neck. Upon seeing the ten accused running towards him, the deceased began to run in the opposite direction.
[4]There was one extendable baton located after the incident. It is not suggested that JRP and IT each possessed a baton, but rather that they had the same baton at different times.
IT reached the deceased first and dragged him to the ground by his clothing. ST, Tafa and JRP arrived next. They were followed by the remaining six accused. The deceased lay in a foetal position on the ground with his arms up, trying to protect his head. The ten accused punched, struck and kicked him. The baseball bat and extendable baton were used to strike him. During this altercation, ST stabbed the deceased with his knife once to the chest.
Mears ran to the deceased. He was confronted by VN who produced his large kitchen knife and said ‘let’s go’. Mears responded by picking up a large stick before Vaifoa stepped between them.
CG also ran to the deceased and pushed ST away from the deceased. ST dropped his knife on the ground alongside the deceased before walking away. The remaining accused then started to walk away. AP removed a glass bottle from the back of his pants and threw it on the ground causing it to smash. JRP still carried an extendable baton. NT carried a baseball bat. VN and DP were wearing face coverings.
A short time after the incident ST and the other nine accused met at the skate park. There ST told the others ‘I poked him bro’.
At the scene, the deceased tried to get to his feet. He stumbled and collapsed on the ground. KG lifted the deceased’s jacket and observed blood.
Police attended at about 4.11pm. The deceased was unresponsive. CPR was commenced. At about 4.12pm police collected a small 9cm black-handled Tefal branded paring knife located alongside the deceased.
Paramedics attended at about 4.19pm and took over CPR of the deceased. He was pronounced deceased at 4.49pm. The autopsy, conducted on 17 June 2020, established the cause of death to be a stab injury to the chest.
On 17 June 2020 ST visited Tafa and Rose Walker at their home. ST told Ms Walker that he stabbed the deceased ‘for the gang’ and so he could join BH.
On 4 August 2020 Alofa Schuster, the mother of DP and AP, made a police statement. She said that about a fortnight after the deceased’s death ST attended her home. Ms Schuster said that ST said that the stabbing occurred when he got pushed and fell forward with the knife in his hand. She said ST said the following:
Ma I didn’t mean to do it but it was an accident … I had a knife, it wasn’t to kill him, it was only to scare him so he didn’t come near me or my family … I had the knife and just ran up to him and was pointing the knife at him ...
The Crown case for manslaughter is either that ST deliberately stabbed the deceased in the chest with a knife with an intent short of causing really serious injury or alternatively, that ST presented a knife in circumstances where he was in close proximity to others who were assaulting, or about to assault, another person and, in doing so, created an appreciable risk of serious injury that materialised when that knife entered the deceased’s chest. In either case the Crown alleges that ST’s act was unlawful and dangerous and caused the death of the deceased.
The defence response
The defence disputes that ST was armed with a knife. The defence also disputes that he used the knife to stab the deceased.
The defence further disputes that ST made admissions to stabbing the deceased to the other nine accused in the immediate aftermath of the incident,[5] to Ms Walker the following day and to Ms Schuster about a fortnight later.
[5]This evidence comes from a statement of JRP dated 17 June 2020.
The disputed DNA evidence
Ms Alexandra Salerno, a forensic officer and senior case manager at the Victoria Police Forensic Services Centre examined a number of items including a black handled knife in packaging labelled ‘BESIDE DECEASED DEER PARK LIBRARY CARPARK’. She had DNA reference samples from the deceased, the ten accused and also JS (who had called 000 whilst hiding from the ten accused).
The black handled knife had blood staining to the blade. It yielded a single source DNA profile (assumed to come from the blood). Using both the Australian Caucasian database (‘ACD’) and the Western Polynesian database (‘WPD’), Ms Salerno states that the DNA evidence is 100 billion times more likely if the deceased is the source of the blood.
A DNA profile was also obtained from the handle of the knife. It yielded a partial, mixed DNA profile of three contributors. Using the ACD, Ms Salerno states that the DNA evidence is 5,600 times more likely if ST is a contributor. Using the Australian Asian database (‘AAD’), Ms Salerno states that the DNA evidence is eight times more likely if ST is a contributor. Using the ACD, Ms Salerno states that the DNA evidence is 4,400 times more likely if AK is a contributor. Using the AAD, Ms Salerno states that the DNA evidence is nine times more likely if AK is a contributor.
Defence argument
The defence submits that the result from the knife handle obtained from the ACD in relation to ST is irrelevant. ST is of Burmese ethnicity and the appropriate database is the AAD.
The defence further submits that the result obtained using the AAD, while relevant, is of low probative value. The verbal equivalent scale for the mathematical likelihood ratio obtained is ‘slight support’. It is argued that the probative value is so weak that it could not outweigh any unfair prejudice to the accused.
That prejudice is identified as the danger that the jury will use the DNA evidence to bolster the evidence of the alleged admissions made by ST as to stabbing the deceased, which the defence say are neither credible nor reliable. A second, but related prejudice, is argued to be that the jury will, in turn, use the evidence of those alleged admissions to inflate the probative value of the DNA result and accord it disproportionate weight.
Crown response
The Crown argues that the likelihood ratio of the DNA profile obtained from the ACD is relevant because the profile is a mixed profile and there were other people of a range of ethnicities who were proximate to ST who could have been contributors to the DNA profile. The ACD is the database used by default as it concerns the largest subpopulation group within Victoria. The likelihood ratio compares ST to a random person from that subpopulation group and so the evidence from that database is plainly relevant to the identity of the person who stabbed the deceased. Relying on R v Guingab (Ruling),[6] the Crown submits that results from both databases should be before the jury.
[6][2010] VSC 256 (‘Guingab’).
The Crown further argues that the probative value of the AAD result is not outweighed by its prejudicial effect.
As probative value must be assessed in the context of all of the evidence, it is submitted that the probative value of the AAD result is moderate when considered in light of the evidence that establishes that ST possessed a knife immediately before the incident, was present at the exact time and place of the incident, was observed to stab the deceased, was observed to drop his knife to the ground immediately after the incident and later made admissions to stabbing the deceased.
Further, the Crown argues that the low likelihood ratio does not of itself create prejudice. Relying upon Vyater v The Queen[7] it is submitted that there is a lower risk of misuse of a likelihood ratio of a low value. Ms Salerno will be cross-examined as to that result. And, any prejudice can be adequately addressed by jury directions.
[7][2020] VSCA 32 (‘Vyater’).
Evidence of Ms Salerno
Ms Salerno was cross-examined at a preliminary hearing conducted pursuant to s 198B of the Criminal Procedure Act 2009.
She stated that the DNA located on the handle of the knife was a suboptimal sample of genetic material. It required reamplification. Amplification is the process of making copies of the sections of DNA looked at to obtain a DNA profile. Reamplification is the repetition of that process by taking another sample from the extracted DNA and amplifying that sample to obtain another DNA profile.
Appendix G to Ms Salerno’s statement states that DNA profiles can be described as optimal or low level/suboptimal.
Optimal profiles indicate the presence of larger amount of DNA from an individual, and these generally give rise to complete DNA profiles. Low level DNA profiles indicate the presence of smaller amounts of DNA, and these profiles are often affected by stochastic variation[8] and more likely to be partial.
[8]Meaning having a random probability distribution or pattern.
In evidence Ms Salerno said that on initial testing the likelihood ratio using the ACD was 3,400. On second testing it was 5,600. The reamplification had been done with respect to both testings, but Ms Salerno said that the likelihood ratio had increased because on the first testing the reference sample for ST was not complete.
Ms Salerno said that after she had provided her initial report [concerning the ACD results] she received information as to the ethnic backgrounds of the various suspects. She was told that ST, CTN and AK were of Burmese background. As a result she conducted further analysis using the AAD. She said that the AAD incorporates 990 genetic profiles from across East and South East Asia. Ms Salerno has no information as to how many of the 990 are of a Burmese background. She stated that there is a correction factor in the calculation to account for the number of different countries within the database. It is a conservative factor taken into account with all databases.
Appendix G to Ms Salerno’s statement details eight databases said to represent the most common subpopulation groups. The AAD is noted to refer to the ‘East and South East Asia’ (China, Vietnam, Philippines) subpopulation group. It is distinct from the Indian database, noted to refer to the ‘South Asia’ (India, Pakistan, Sri Lanka) subpopulation group.
That appendix also states the following under the subheading ‘Relevant population’.
In performing a [likelihood ratio] calculation, population sample data is used to determine how common the alleles detected in the evidentiary profile are expected to be in a population. These sample data are grouped according to ethnicity into subpopulations (see ‘Population database(s)’). [Likelihood ratio] calculations are routinely performed using Australian Caucasian population sample data. As Caucasians comprise the largest proportion of the Australian population, this population is chosen as it is more likely by chance alone that the ethnicity of the source(s) of the alleles detected will be Caucasian. A population database reflective of the ethnicity of the person of interest is also used if possible, as this is typically conservative. Calculations using other population data can be performed if requested.
NOTE: A correction factor (known as θ or theta) is incorporated into all statistical calculations to account for distant relatedness (or shared ancestry) between the person of interest and the unknown individual in the second proposition (see ‘Propositions considered’).
When asked if the AAD was less able to distinguish between persons who belong to a small Australian subpopulation ethnicity, such as Burmese, as opposed to a larger Australian subpopulation ethnicity, such as Chinese or Vietnamese, Ms Salerno said that it was possible, for example, that certain DNA types or alleles are more common in the Burmese population than in the Chinese population, but that possibility was factored into the calculation. She said there was no database for every single ethnicity.
When asked if the use of subpopulation databases in relation to persons of specific ethnic background was done because they yielded better results in distinguishing between different persons, Ms Salerno said that the results were not necessarily better but they were more conservative. She said:
Generally we use the [ACD] by default because that is the largest population that we have in Australia, and it’s expected by chance that an offender would be within that population. But when we do have information … that the offenders could be a different nationality,[9] and we have those databases, then we do provide those calculations when we can. … [If] the offender is Asian then the [AAD] … would be the one to use [be]cause … a frequency of the DNA types in those populations are likely to be different than to the other populations.
[9]This is presumably a reference to ‘ethnicity.’
Ms Salerno was asked if the result in this case obtained from the AAD was preferable to that obtained from the ACD. She answered that there was ‘no right or wrong’ and ‘it depends on what [ethnicity] the offender is.’ She said that the AAD was the most conservative database, and added ‘I guess the court would prefer that one.’ She agreed that the difference in the results obtained from the two databases used was ‘dramatic’. Ms Salerno said that the AAD:
… would be the most appropriate database to use and … if there’s evidence to indicate the actual offender is Burmese or Asian, is there other evidence to indicate that these people were present and could have held the knife. So all that information can be used to determine which database is most appropriate. [T]he [AAD] is the most conservative one and that would have to be presented to the jury…
Ms Salerno said that the likelihood ratio of eight obtained using the AAD meant that one in eight persons in the database of 990 would return the same result.
Ms Salerno was also asked about the number of contributors to the DNA profile obtained from the knife handle given the low quality of the DNA. When asked if it were possible that there were four or more contributors, she said that it is always possible that there are more contributors, but the best explanation for the DNA result obtained is three contributors. She said that the three contributors contributed 59 percent, 26 percent and 15 percent respectively. She agreed that if there was a fourth contributor to the sample the likelihood ratio would change, but she could not say whether it would increase or decrease.
Ms Salerno said that there was no indication that contamination of the DNA sample had occurred.
Ms Salerno was further asked whether the process of fingerprinting the knife before it was swabbed for DNA could account for the low quality DNA found on its handle. She said that she was not sure. She could not say how much DNA would be lost by powdering the knife handle prior to biology sampling, or whether these tests reduced the utility of the DNA test.
Analysis
Legal principles
Evidence is admissible if it is relevant. The test for relevance established by s 55 of the Evidence Act 2008 (‘Act’) requires only a logical connection between the evidence and a fact in issue.[10] What is required is that the evidence in question be reasonably capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue.[11] That is, the evidence is relevant if it has the capacity to do so and not merely only if it would do so.
[10]Papakosmas v The Queen (1999) 196 CLR 297, 321-322 [81] (McHugh J).
[11]HML v The Queen (2008) 235 CLR 334, 351 [5] (Gleeson CJ).
Section 137 establishes a mandatory requirement to refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. Probative value is defined in the Dictionary to the Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. Considerations of reliability and credibility are irrelevant to the assessment of the probative value of evidence under s 137.[12]
[12]IMM v The Queen (2016) 257 CLR 300, 312 [39].
Is the ACD likelihood ratio relevant?
As noted above, the prosecution relies upon Guingab to argue the relevance of putting the likelihood ratios from both the ACD and the AAD before the jury.
In Guingab, the body of a deceased woman was found in plastic garbage bags. Both the body and bags were bound with blue nylon rope. The plastic bags were of a sort not readily available through retail outlets. Plastic bags of an identical sort were found in the accused’s home. The accused’s wife had seen him handle a blue nylon rope at the home just prior to the deceased woman’s disappearance. A right thong was found proximate to the body. The deceased woman was shoeless when found, but wearing socks. The accused and deceased, who were both of Filipino descent, were known to have been together three days prior to her death. She had been a guest in his house.
DNA profiles obtained from both the blue nylon rope and the right thong were compared with four different databases: the ACD, the AAD, the Victorian Asian database (‘VAD’) and the Filipino database. The results obtained from each database gave a likelihood ratio indicating the presence of the accused’s DNA on both items.
On various grounds, the defence objected to the evidence of the likelihood of the major contributor to the DNA found on the right thong being the accused’s, as compared to another randomly chosen member of each of the four databases. These included that as the AAD and VAD are taken from a broad cross-section of Asian people from the whole of South East Asia, the accused’s Filipino ethnicity rendered the data derived from these databases inappropriate. The ACD was argued to be similarly inappropriate.
T Forrest J rejected those arguments. His Honour noted the evidence of the DNA expert that an allowance had been made in the calculation by the theta factor such that any variations peculiar to particular ethnic communities were effectively eliminated and further that the interpretations were biased conservatively in favour of the accused. His Honour said:
As I have observed, the defence are critical of the use of the [VAD, ACD and AAD] on the basis that the accused is Filipino. In my view, it is legitimate for the prosecution to seek to lead evidence of likelihood ratios from all four databases. The likelihood ratio by its nature expresses chance by comparing two individuals – the accused and another random person. The other random person is the alternative major contributor to the DNA. The other random person could be Caucasian or Asian (including of Filipino descent). The results, regardless of whichever database is used, are remarkably similar. I consider that the prosecution is also entitled to lead evidence of likelihood ratios from all these databases in order to meet the anticipated criticism from the defence that one or other of them are used inappropriately.[13]
[13]Guingab, [48].
In my view, his Honour’s finding in that case is not authority for the universal admissibility of likelihood ratios produced by multiple databases. Rather, the finding was based on the particular facts before his Honour.
Two of those facts were significantly different from the facts of the present case. First, there it was necessarily the case that the ‘other random person’ could have been of any ethnicity as the accused denied any involvement whatsoever in the death of the deceased woman. While care must be taken never to assume ethnicity on the basis of a name or an observable physical attribute, in this case the ethnicity of all those involved in the attack on Solomone Taufeulungaki is known and not disputed. One of those involved persons used the knife to stab him. Not one of them is Caucasian. Second, in Guingab the results across all four databases were ‘remarkably similar’. Here, the difference between the ACD and AAD results is ‘dramatic’.
Given the presence of the deceased’s blood on the blade of the knife, the fact that the knife was found next to his body and the pathologist’s evidence as to the nature of the stab wound, it is anticipated that the jury will have little difficulty accepting the black handled knife to be the weapon causing death. The DNA evidence relating to the handle of the knife is relevant to the issue of who had possession of the knife during the attack. That the DNA of ST and AK, both of whom were known to have been involved in the attack, was found on the handle of the knife is logically connected to that issue. That an ‘other random person’ of an ethnicity different from the ethnicities of those involved might have touched the handle of the knife at a different time is beside the point.
Ms Salerno’s evidence is that the choice of appropriate database is influenced by knowledge of the ethnicity of possible offenders. In this case that knowledge is complete as to all possible offenders.
In this regard I note that the ethnicity of some of the ten accused is Polynesian rather than Asian. Other items tested for DNA were done so using the ACD as well as the Western Polynesian database and Eastern Polynesian database. As I understand the evidence of Ms Salerno, any DNA finding relevant to one of the ten accused would be found in both the ACD and whatever population database was relevant to the subpopulation group of one of the potential offenders. Accordingly, it is necessarily the case that of the ten accused, the DNA of only ST and AK was found on the handle of the knife.
It follows that the fact of testing using the ACD is relevant in the trial, as it establishes that of the ten persons involved in the attack, it is likely that the DNA of only two of them was on the handle of the knife. However, the ratio of that likelihood is, in my view, appropriately drawn from the AAD rather than the ACD.
I note the dramatic difference in the likelihood ratios returned by each database. Using the verbal equivalent scale, the difference is between very strong support under the ACD and slight support under the AAD. That difference is the same for both ST and AK.
I can discern no relevance in the jury hearing evidence of the less conservative, less appropriate, higher figure. Even if relevant, it is my view that given the disparity between the results using the ACD and the more conservative AAD, the likelihood ratio from the ACD occasions unfair prejudice to ST. The temptation of the jury to average the results or otherwise inflate the significance of the AAD result in light of the ACD result is likely to prove irresistible, even in the face of judicial direction.
What is the probative value of the AAD likelihood ratio?
The probative value of a DNA likelihood ratio must be assessed in the context of all of the prosecution evidence. The adjective of the verbal equivalent of any particular likelihood ratio is not necessarily the appropriate descriptor of its probative value.
The point may be illustrated by the facts in Vyater. There the issue was whether the accused trafficked, by manufacture, various drugs. Evidence was led that it was 26 times more likely that the DNA on a glove found in a plastic tub together with equipment which had been used for the manufacture of methylamphetamine came from the applicant than from a person selected at random. The verbal equivalent for that likelihood ratio was moderate. The Court of Appeal found the circumstantial case against the applicant to be strong. It was particularly significant that the glove was located in a closed tub together with manufacturing equipment. It was held that the evidence of the moderate support for the likelihood ratio was of high probative value.
In the present case the defence argued that where the likelihood ratio provided slight support for the prosecution’s proposition – as opposed to moderate or higher – the probative value must necessarily and universally be low. In this regard it was submitted that not a single example could be found where evidence of a likelihood ratio of that calibre had been admitted into evidence. Reference was also made to the following observations of Nettle J in R v Juric.[14]
… [T]here must and does come a point at which some technical evidence has the capacity to be so misleading or confusing, whatever directions may be given about it, that its probative value is exceeded by its prejudicial effect. At that point it is to be excluded from the jury.
In my opinion, one reaches that point in this case with the statistical calculation that it is twenty times more likely that the DNA came from the deceased and the accused than that it came from the deceased and someone else drawn from the Caucasian population of Victoria. That seems to me to be evidence that is so inherently capable of misleading or confusing the jury, whatever directions may be given, that it should be excluded.
As the authorities make plain, and as the evidence given by Dr Roberts bears out, the sorts of probability ratios that are ordinarily encountered in DNA evidence are in the order of one in several thousand if not in several million. Indeed it is because of the facility with which those sorts of results have been and continue to be produced on a regular basis that DNA evidence has acquired the wide spread reputation for reliability if not infallibility that it enjoys in popular culture. Given the popular perception of the importance of a DNA match, a jury might well treat as being of real significance a calculation that the chance of the DNA having come from the accused is twenty times more likely than the chance of it having come from someone else. In point of fact, however, the probative value of a match ratio of one in twenty is not much greater than nil.
As Professor Boettcher explained, to say that it is twenty times more likely that the DNA came from the accused than from any other person in the Victorian Caucasian population is really to say no more than that the DNA could have come from one in every twenty people comprising the Victorian Caucasian population (or, roughly speaking, from any of 200,000 people in the State). Moreover, if Dr Harbison is correct, the ratio when properly calculated is only one in seven. Assuming that one should allow for a statistical deviation of plus or minus 3% or 5%, as was suggested, it means it could be anyone.[15]
[14][2003] VSC 382 (‘Juric’).
[15]Juric, [70]-[73].
These observations may be contrasted with those in later Court of Appeal decisions.
In R v Berry & Wenitong,[16] the issue was the admissibility of DNA evidence concerning an area on a sock (item 10(e)(ii)) at which a mixed profile of at least four individuals was obtained. Another area of the sock was bloodstained (item 10(e)(i)). The likelihood ratio with respect to item 10(e)(i) was that it was at least 72 million times more likely that the DNA came from the deceased than another random person in the Caucasian population. The murder alleged took place in Barwon Prison. Berry, Wenitong and the deceased were all prisoners. The major contributor to the DNA profile on item 10(e)(ii) was a man named Ali. His DNA was not detected in any other DNA material relied upon by the prosecution. He was not in custody at the time of the murder and had not been in Barwon Prison at any material time. He had been a prisoner at Port Phillip two months earlier when the deceased had also been in custody at that prison. Each of the accused and the deceased could not be excluded as contributors to the DNA profile of item 10(e)(ii). The Crown expert gave evidence that the DNA profile of item 10(e)(ii) would be 180 times more likely if Ali, both accused, the deceased and an unknown person were contributors than if Ali and at least three unknown persons were contributors and at least 95 times more likely than if Ali and two or more unknown persons were contributors.
[16](2007) 17 VR 153; [2007] VSCA 202 (‘Berry & Wenitong’)
Redlich JA said:
… [T]he level of detail in which the DNA evidence was explained to the jury made it plain that such evidence could not conclusively establish the source of the DNA. The jury were reminded of the different likelihood ratios which had been calculated by the Crown experts in relation to the different DNA evidence. The jury were reminded by all parties and the trial judge of the comparatively low likelihood ratios in support of the DNA material at 10(e)(ii) and the likelihood ratios which were in the many millions in relation to other pieces of DNA evidence. The jury were reminded that it was the low likelihood ratio that led to the opinion that it could provide only moderate support for the Crown hypothesis. There is no force in the submission that the jury would have been unlikely to appreciate the true significance of the difference in magnitude of the various likelihood ratios which were calculated for different items of DNA evidence. The jury were reminded, and in closing addresses in emphatic language, that the likelihood ratios for the DNA at 10(e)(ii) were not convincing likelihood ratios when compared with the likelihood ratios for other DNA evidence in the trial which were in the many millions. For example, the likelihood ratio for the competing hypothesis to explain the DNA on item 10(e)(i) was 72 million to 1 whereas the likelihood ratio for the Crown hypothesis in relation to item 10(e)(ii) was either 180 to 1 or 95 to 1. These differences in the magnitude of the mathematical likelihood were heavily relied upon by defence counsel in their closing address and would have been perfectly apparent to the jury. The jury were reminded that the reduction in the mathematical likelihood was of such an order that it led the Crown expert to say of the lowest probability that it was evidence which only moderately supported the Crown hypothesis.[17]
[17]Berry & Wenitong, [55] (Buchanan JA agreeing).
In a separate judgment Kellam JA agreed with Redlich JA and observed that ‘the determination of the weight of the evidence given by Dr Roberts in relation to this matter was entirely within the province of the jury’.[18]
[18]Berry & Wenitong, [140].
In Vyater the Court said:
It is clear, we think, that the jury’s assessment of the probability that the applicant was the manufacturer was capable of being ‘rationally affected’ by evidence it that was 26 times more likely that the DNA on the red glove was contributed by the applicant than by someone else.
As noted earlier, the likelihood ratio is a ratio of probabilities. On an ordinary understanding of concepts of likelihood and probability, a likelihood ratio of 26 to 1 could rationally be understood to mean that the prosecution hypothesis (that the DNA on the glove came from the accused) was distinctly more probable than the defence hypothesis (that it did not). The civil standard of proof requires satisfaction that the existence of the relevant fact or matter is ‘more probable than not’. Satisfaction that its existence was twice as probable as its non-existence would ordinarily satisfy that standard. It follows, in our view, that a multiple of 26 times justifies the use of the phrase ‘distinctly more probable’. On this view, the fact that likelihood ratios are very often – perhaps typically – expressed in multiples of millions or billions does not, in our view, rob this likelihood ratio of probative value.[19]
[19]Vyater, [76]-[77] (citations omitted).
These authorities illustrate that the assessment of probative value of any particular likelihood ratio is very dependent upon the factual matrix in any particular case.
In Berry & Wenitong the circumstantial evidence was very strong. There were a limited number of people inside the prison unit at the time of death of the deceased. A knife stolen from the prison officer’s console several days before the murder was later found in a garden bed outside. The deceased had ligature marks on his neck. Three shoelaces tied together were found on the floor of his cell. Blood stains on the floor of that cell had three separate sets of footprints, one of which was made by the deceased. Of the three trails that led from the cell, one led to the cell of Berry and another to that of Wenitong. Berry was found to have showered. A washing machine near the cell of Wenitong had been started. It contained two pairs of sports shoes. The sock relevant to items 10(e)(i) and 10(e)(ii) was found on a bucket in the laundry.
In Vyater the circumstantial case was also strong. The applicant was the lessee of the premises and the only person known to the lessor to use them. He was present when the search warrant was executed. His fingerprint was found on two items evidently used for manufacturing methylamphetamine. His DNA was on one of the masks on the side table. Items found on his mobile phone implicated him in the manufacture and sale of methylamphetamine.
In my view, there is no logical basis for distinguishing the approach to the assessment of probative value demonstrated in these cases simply because the verbal equivalent of the likelihood ratio under consideration is slight as opposed to moderate (or anything higher on the scale). The question remains the same: to what degree does the evidence rationally affect the fact in issue, here being whether it was ST who stabbed the deceased.
The Crown can point to evidence that ST possessed a knife immediately before the incident, that he was present at the exact time and place of the incident, that there is a witness who observed him stab the deceased, that there is a witness who observed him drop the knife on the ground immediately after the incident and that he made admissions to stabbing the deceased to three separate people on three separate occasions. And, it is to be remembered that the number of people who could have possibly stabbed the deceased is limited to ten. The DNA of all ten was compared with the profile obtained from the handle. It is likely that only the DNA of only two of the ten – ST and AK – is on the handle of the knife. There is nothing in the evidence suggesting that AK inflicted the fatal stab wound. Therefore, that the DNA evidence might be expressed to mean that one in eight persons in the AAD would produce the same likelihood ratio does not diminish or eliminate its probative value.
It is important here to revisit Juric. In that case, the accused had twice been previously tried on the same charge. At the first trial, the Crown sought to establish that there were three men involved in the murder of the deceased, and that the accused was one of them. At that trial the Crown adduced DNA evidence in relation to a latex glove tip found in the deceased’s car. Two sets of test results indicated the probability of the DNA having come from the deceased and accused was more than 200 times greater than it having come from the deceased and a person drawn at random from the Victorian male Caucasian population. The Crown relied on this result to prove that the DNA had not come from the accused’s two accomplices. The Crown did not seek to lead the evidence at the second trial.
In advance of the third trial, the Crown indicated its intention to lead the DNA evidence to show that there were three men involved in the murder and that the possibility that one of those men was the accused could not be excluded. The Crown also sought to place before the jury a revised statistical calculation based only on one of the test results; namely that it was twenty times more likely that the DNA came from the deceased and the accused than that it came from the deceased and another random person.
As to the strength of the Crown’s circumstantial case, the Court in Juric said:
Putting aside the statistical evidence, the fact which the Crown seeks to establish with the aid of the DNA evidence is that three men were involved in the death, not two as the accused alleged during the course of the last trial. That fact is an indispensable link in the chain of reasoning in the Crown case.[20]
…
Here the DNA evidence is one fact among a number of facts on which the Crown seeks to rely in order to establish that there were three men and that the accused was one of them. Other facts include the evidence of Evans and Tsagaris (albeit that they are accomplices), objective and subjective circumstantial evidence as to the accused’s movements and behaviour shortly before and after the time of the alleged offence, and tape recordings of conversations in which the accused is said to have made admissions. In those circumstances, I do not regard the Crown case as “weak”. I accept the possibility that a jury may be not be satisfied beyond reasonable doubt about the reliability of the DNA evidence, or indeed beyond reasonable doubt of any of the facts upon which the Crown intends to rely in order to establish that there were three men and that the accused was one of them. But even so, the jury might still properly be satisfied beyond reasonable doubt by the totality of the evidence that there were three men and that the accused was one of them.[21]
[20]Juric, [63].
[21]Juric, [65].
As to the statistical calculation sought to be adduced, evidence given by the accused’s experts on a voir dire suggested the result had no reliability or statistical significance. One expert said that any probability ratio with a denominator of twenty or less was ordinarily regarded as statistically insignificant. The other said that the DNA evidence provided such slight support when combined with uncertainties about contamination and low DNA levels/yields that it should establish no more than that the accused was not excluded as a contributor to that DNA sample. It is on the basis of this expert opinion that the Court found the probative value of a probability ratio of one in twenty to be not much greater than nil, and accordingly excluded the statistical calculation but not the DNA evidence.[22]
[22]Juric, [72].
Here, there is no evidence of contamination or DNA yields being too low to found a meaningful result or to render the probative value of the AAD likelihood ratio meaningless. Ms Salerno will be cross-examined before the jury and the limitations of her opinion will be explored. Nonetheless it remains the fact that eight of the ten accused were excluded as contributors to the mixed DNA profile on the handle of the knife. And, that of the two who were not excluded as contributors, there is, absent the DNA evidence, a circumstantial case against ST but not AK.
It follows that I find the DNA evidence in the present case to be of moderate probative value.
Does the prejudicial effect of the AAD likelihood ratio outweigh its probative value?
To the extent that part of the defence argument rested on the basis that the probative value of the AAD likelihood ratio was so weak that it could not outweigh any unfair prejudice to the accused, that argument must be rejected given my finding that the probative value of the evidence is moderate.
However, I note that even if the probative value was low, s 137 of the Act does not compel the exclusion of the evidence unless that value was outweighed by the danger of unfair prejudice.[23] In the event that I had concluded that the probative value of the AAD likelihood ratio was low, I would still have permitted its tender.
[23]The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24, [44].
As identified above, the prejudice articulated by the defence is that the ‘slight’ probative value will be used to impermissibly bolster the evidence of the alleged admissions made by ST and that the admissions will be used to impermissibly inflate the probative value of the DNA evidence.
I am not persuaded by that argument. The jury will have the benefit of cross-examination concerning the AAD likelihood ratio and the attack on the reliability and credibility of the alleged admissions. The nature of a circumstantial case is that the jury will be directed to consider the evidence as a whole. They will be given the standard direction not to guess, speculate or jump to conclusions. They will also be given the standard direction that DNA evidence cannot prove who committed an offence. There is nothing inherent about the AAD likelihood ratio that indicates it will be used impermissibly by the jury. The defence have not identified anything specific concerning impermissible use beyond noting the verbal equivalent of the likelihood ratio as slight.
In this regard, the observation of the Court in Vyater is apt:
… [W]e think that there is, if anything, a lower risk of misuse of a likelihood ratio of under a hundred than in the case where the ratio runs into the millions or billions. Much has been written about the risk of jurors being ‘dazzled’ or ‘overwhelmed’ by incomprehensibly large numbers. With a ratio of 26 to 1, by contrast, the figures are well within the ordinary juror’s lay understanding of probability and, for that reason – are less likely to be overwhelmed.[24]
[24]Vyater, [80].
It follows that the probative value of the evidence is not outweighed by its prejudicial effect.
Events of 15 June 2020
The Crown relies upon the evidence summarised in its opening (and reproduced at paragraph 9 above) as evidence of context. It is said to be the background to or the trigger for the events the following day. The context is said to be relevant to show that the fatal incident did not occur ‘out of the blue’ but was a retributive attack. Further, the evidence is said to be relevant to establishing the elements of charge 2, namely that ST acted together with at least five other persons with a common goal or intent.
The defence argue that the evidence is irrelevant and, alternatively, that if relevant the allegation that ST is associated with a youth gang is absent any evidentiary foundation and highly prejudicial.
In my view the evidence is irrelevant.
The summarised evidence shows that ST was not involved in the incident. Nor were VN or JRP, two of the people with whom ST is alleged to have acted together with a common goal or intent the following day. The highest the evidence reaches is that ST (and JRP) observed police at the shopping centre after the incident and after the fighting groups had dispersed and, therefore, may have acquired knowledge of what had occurred at that point. Further, the deceased was not involved in the events of 15 June.
Absent this evidence, the prosecution is not denied context or a trigger for the fatal incident, nor evidence of ST acting as part of the ten accused with an apparent common intent. The jury will hear evidence that ST knew of a fight the day prior to the fatal incident because as the deceased and his school friends were walking to the bus stop in Deer Park on 16 June 2020, ST – who was then with all nine others who later attacked the deceased at the Brimbank shopping centre – asked them if they were part of VB and involved in the fight the previous day. A physical fight then broke out. The ten accused then moved – as a group – to the Brimbank shopping centre.
Further, the particular animus towards the deceased appears to have stemmed, at least in part, from incidents other than the fight on 15 June 2020. The discussion at the Skate Bowl on 20 June 2020 amongst the ten accused concerned an incident in which BH/97 members had been assaulted. While the deceased and his friends were blamed, there is no evidence of this being a reference to the incident the day before at the Brimbank Shopping Centre.[25] Neither did the assault DP said he suffered at the hand of the deceased occur the day before.[26]
[25]The statement of Rose Walker dated 1 November 2021 does not specify when the assault of the two BH/97 members occurred and suggests there was a video of it.
[26]The same statement does not specify when this assault occurred and again refers to a video.
Even if I had found the evidence to be relevant, I would have excluded it pursuant to s 137 of the Act. If relevant, the evidence is of very low probative value. While the jury will inevitably hear some evidence of the existence of the two gangs, an assertion of escalating conflict between members of ‘youth gangs’ in the days (not day) before the fatal incident raises the spectre of raging gang violence likely to provoke an emotive response in the jury. And, there is no evidence that ST was a member of BH/97 (although there is some evidence that he desired to be).
The evidence does show that ST identified with and had loyalty to the other nine of the ten accused and that together, they viewed themselves in opposition to VB and VB Youngins. That is obviously relevant to the charged offences. But the evidence of the events of 15 June 2020, which involved neither the deceased nor ST, together with an assertion of escalating gang violence does not much advance the case against ST but does carry prejudice.
It follows that the evidence will be excluded.
Conclusion
For the reasons articulated above, the Crown will be permitted to lead evidence of the fact that the ACD was used with respect to the DNA profile obtained from the handle of the black handled knife to determine which of the ten accused could not be excluded as contributors to it (and necessarily which could), but not the likelihood ratio produced. The Crown will be permitted to lead the likelihood ratio obtained of the same using the AAD.
The evidence of the events of 15 June 2020 is excluded.
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