R v Tatola (No. 2)

[2023] NSWDC 387

District Court

New South Wales

Medium Neutral Citation:	R v Tatola (No. 2) [2023] NSWDC 387
Hearing dates:	11 September 2023
Date of orders:	11 September 2023
Decision date:	11 September 2023
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	See [10]
Catchwords:	EVIDENCE – s 137 Evidence Act – admissibility of evidence – blood DNA evidence – whether probative value of evidence outweighed by risk of unfair prejudice – no spermatozoa DNA evidence
Legislation Cited:	Evidence Act 1995 (NSW), s 137
Category:	Procedural rulings
Parties:	Rex (Crown) Mateo Lisi Tatola (Accused)
Representation:	Counsel: Ms K James (Crown) Ms E Hile (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Tang Lawyers (Accused)
File Number(s):	2022/00164198
Publication restriction:	Statutory non-publication order regarding the name of the complainant or anything that might identify them.

Judgment EX TEMPORE

Admissibility of DNA Evidence

1. HIS HONOUR: An issue has arisen concerning the admissibility of DNA evidence obtained during the Sexual Assault Investigation Kit (‘SAIK’) examination of the complainant after the alleged event. The testing failed to detect any semen or spermatozoa for the whole of the vagina corridor and to the external labia.

2. On the endocervical swab, which is a swab at the highest level in the vaginal canal, there was a positive screening test for male DNA, but not from spermatozoa. It is described in defence written submission at [7] as a test for blood, and as Ms Crown has properly reported to the Court today, could be from a source other than blood. It is admissibility of evidence of that endocervical swab test for blood which found male DNA of the same Y-STR profile as the accused, a profile which is expected to occur in one in 750 unrelated males in the general population, which is in contest.

3. I am informed that an agreed fact will be entered into the trial. It has been submitted by defence to Crown and signed by the parties. I am informed that the agreed fact will be that there was digital penetration by the accused of the complainant. That digital penetration is not the subject of the offence, of course. The offence, I am told and understand to be, penile vaginal sexual intercourse without consent.

4. Ms Crown has been frank in conceding that the contested DNA finding is not determinative of whether there was or was not penile vaginal penetration. That is, as the case has been introduced to me during these submissions, the fact in contest.

5. The Crown puts forward that unless this contested DNA evidence is admitted, the jury will be left to speculate as to why full testing of some other fashion has not occurred. As is put in [13] of MFI 1 (Written Submission of the Crown), the Crown also submits that the evidence is relevant, as it will confirm to the jury that a full investigation was undertaken by police, and the evidence completes the findings of the medical examination and subsequent forensic testing. The Crown in that paragraph then submits that to not call such evidence would lead to a gap of evidence, which the jury would “likely” expect to be told about. The Crown submits that without this evidence, the jury might well engage in speculation.

6. In my opinion, police investigation in a normal course of a scientific analysis of bodily contact would on first base be relevant. The issue here is specifically the contested fact of penile-vaginal penetration, and I have referred to the properly made concession by the Crown that this evidence does not contribute to determination of that issue. In my opinion, the Crown’s concern to avoid jury speculation as to a gap is a matter to be properly considered.

7. Ms Hile for the defence has explained, and again, accurately to my understanding, that the finding of presence or absence of spermatozoa is not a DNA examination. The fact is there was no finding of sperm in any part of the genitalia of the complainant from the labia to the high vaginal canal point. It is common between the parties that there will be no evidence in the case as to the source; that is, for instance, penis or finger or from some other part of the accused or of any other person of that contested DNA.

8. A jury hearing that there has been a test for spermatozoa and finding none, and I understand that that will be dealt with by agreed facts, in my opinion, would not be - as the Crown puts it so highly – “likely” expected to think that there were some other tests which ought or should have been conducted. Had there been sperm or evidence of spermatozoa to put it more correctly, then DNA testing of that sample would have been appropriate in order to determine whether it was or was not sperm or spermatozoa of the accused. That is not the scenario in this case.

9. Therefore, that first consideration of relevance of a properly conducted police investigation is to be considered under s 137 of the Evidence Act 1995 (NSW) on the question of probative value as against the risk of prejudice. The relevance is indeed, in my opinion, very low. It borders on being not relevant to the central issue but for, as I have said, evidence of a standard police procedure being usually admissible. The evidence is of near nothing to minimal probative value of the fact-in-issue being whether or not there was penile-vaginal penetration. The case should not be conducted on a basis on which the jury is left to speculate as to whether there was some other test - that being the test for blood - and DNA having been found in the blood then as to what this might mean, given that it is not of probative value to the central fact-in-issue.

10. Pursuant to s 137 Evidence Act 1995 (NSW), 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. In my opinion, the probative value being as I have described it, the prejudice is that its introduction might cause the jury to speculate as to why it was introduced if it has nothing whatsoever to do with the offence or otherwise to place a disproportionate weight on it because of the influence of scientific evidence referred to in the defence submission as the “CSI effect”. These considerations lead to my determination that the danger of unfair prejudice to the defence outweighs that minimal probative value and the evidence should not be admitted.

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Decision last updated: 22 September 2023