R v Trong Ruyen Bui
[2014] ACTSC 64
•31 March 2014
R v TRONG RUYEN BUI
[2014] ACTSC 64 (31 March 2014)
EVIDENCE – application to exclude DNA evidence – judge alone trial – drug trafficking charges – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice – where potential for contamination – virtually no risk of judge or magistrate giving evidence more weight than entitled – strength of circumstantial case found in examining all of evidence together
Criminal Code 2002 (ACT), s 603(7)
Evidence Act (ACT), ss 55(1), 56(1), 135, 137
EX TEMPORE JUDGMENT
No. SCC 19 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 31 March 2014
IN THE SUPREME COURT OF THE ) No. SCC 19 of 2013
)
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: REGINA
Respondent
v
AND:TRONG RUYEN BUI
Applicant
ORDER
Judge:Burns J
Date:31 March 2014
Place:Canberra
THE COURT ORDERS THAT:
The application to exclude evidence be dismissed.
This is an application to exclude certain evidence which the Crown proposes to lead at the trial of the accused. The accused is charged with two offences: one of trafficking a controlled drug, other than cannabis, namely, heroin; and one of trafficking in a controlled drug, other than cannabis, namely, methylamphetamine. Both offences are contrary to s 603(7) of the Criminal Code 2002 (ACT).
The evidence which the accused seeks the present application to have excluded is evidence which the Crown proposes to lead from Carol-Ann Schenk, and which is contained within her report of 21 January 2013. Effectively, it relates to the DNA analysis of three items that were found at premises which the Crown says the accused was residing at during the relevant periods for the charges.
The first objection to the evidence is that the evidence is not relevant. Section 56(1) of the Evidence Act 2011 (ACT) says that:
Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
Section 55(1) provides that:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The argument, as I understand it, put forward by Mr Theakston on behalf of the accused, is that this evidence is not relevant because of the potential for contamination of the items that were examined by Ms Schenk. I digress at this point to indicate that the items that were examined by Ms Schenk were found to have on them DNA which is consistent with the DNA of the accused to varying extents.
There was evidence from Dr Brian McDonald, who was called on behalf of the accused, that DNA would not uncommonly be found on items that were found in premises where a person was living; that is, the DNA of that particular individual. Of course, Dr McDonald did not personally observe the circumstances in which the search took place and he did not observe the condition of the household in which the items were located. He also did not personally observe where those items were found.
I am satisfied that the evidence that DNA consistent with that of the accused was found on the three items which were examined by Ms Schenk is relevant evidence. There is a lack of cogent evidence to suggest that the risk of contamination was so high as to relieve the proposed evidence of any relevance. The question then becomes one of whether there is some other provision in the Evidence Act under which the proposed evidence should be excluded.
Mr Theakston pointed to ss 135 and 137 of the Act. However, it is only necessary to go to s 137, because it is impossible to imagine a case where rejection of evidence was refused under s 137, but rejection was then allowed under s 135. Section 137 provides a lower threshold for rejection of evidence than s 135. Section 137 provides that:
In a criminal proceeding the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The Crown does not dispute the proposition that the probative value of the proposed DNA evidence will have to be assessed bearing in mind the potential for contamination, which was referred to by Dr Hamilton, and also bearing in mind the evidence given by the various witnesses called by the Crown on the voir dire which allowed physically for contamination to take place. It must be accepted that there is some potential for contamination to have occurred. That, of course, affects the potential probative value of the evidence.
However, s 137 calls for a balancing exercise. Simply because the probative value of evidence is reduced from what it might otherwise be does not mean that it is to be rejected under s 137. It is only to be rejected where the probative value of the evidence is outweighed by the danger of unfair prejudice. The danger of unfair prejudice in this particular case is that the tribunal of fact will give the evidence more weight than it is entitled to.
The present trial is, at the election of the accused, a trial by judge alone. In my opinion, there is virtually no risk of unfair prejudice in the sense to which I have referred, as this proceeds as a trial by judge alone. Judges and magistrates are trained to deal with, and many have long experience in dealing with, these issues and, in particular, about what weight is to be attributed to evidence.
The case against the accused is both a direct evidence case and a circumstantial evidence case. The DNA evidence comes with the circumstantial evidence case to be presented by the Crown. It is well established that in determining a circumstantial evidence case one does not look at each individual circumstance in isolation and determine whether the accused could be found guilty based upon that particular circumstance. The strength of a circumstantial evidence case is found in examining all of the circumstances put together, taking into account the weight that can be given to any individual piece of evidence.
In my opinion, the evidence is not only admissible, but its probative value is not outweighed by any danger of unfair prejudice to the defendant, and as such the evidence will be admitted.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 29 May 2014
Counsel for the Crown: Mr J Lundy
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the Accused A Kelly: Mr G Theakston
Solicitor for the Accused A Kelly: Ben Aulich & Associates
Date of Hearing: 31 March 2014
Date of Judgment: 31 March 2014
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