Prasad v The King
[2024] NZHC 3798
•9 December 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS(ES) PURSUANT TO S 202(!) CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-530
[2024] NZHC 3798
BETWEEN PRANEEL VISHAL PRASAD
Appellant
AND
THE KING
Respondent
Hearing: 09 December 2024 Appearances:
S Kumar for Appellant H Clark for Respondent
Judgment:
9 December 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH
Solicitors/Counsel:
Sanjay Barristers & Solicitors, Auckland Crown Law, Wellington
PRASAD v R [2024] NZHC 3798 [9 December 2024]
Introduction
[1] Following a Judge-alone trial before Judge K Maxwell in the Auckland District Court, which ended on 20 May 2024, Mr Prasad was convicted of one charge of sexual violation by unlawful sexual connection (anal penetration).1 He was acquitted of a second charge of sexual violation by unlawful sexual connection (oral genital contact). He has not yet been sentenced.
[2] Mr Prasad has filed an appeal against his conviction on the basis that the Judge erred in her assessment of the evidence in various ways and in refusing a defence application at trial for an adjournment to enable the Institute of Environmental Science and Research (ESR) to undertake a comparison of a DNA sample obtained from the complainant.
[3] Mr Prasad seeks an order that the DNA sample be tested in advance of the appeal. If the testing excludes him from being a possible contributor, he will apply to produce that evidence as fresh evidence on appeal.
[4] The Crown opposes the application on the basis that the additional testing will not produce evidence that could have any material effect on the outcome of the appeal.
Background
[5] The applicant is a male in his forties. The complainant, Ms X, is a female in her twenties who worked as an escort at a club in Auckland. Mr Prasad and Ms X were known to each other as Mr Prasad was a previous client of Ms X at the club.
[6] On Saturday 30 January 2021, Ms X was working at the club. Mr Prasad arrived at about 11 pm. He spent a short time at the bar and eventually booked Ms X for a sexual service paying $345. Ms X says that during the booking he penetrated her anus with his penis without her consent. Ms X also says that after the anal intercourse Mr Prasad approached her and attempted to put his penis in her mouth. Ms X did perform oral sex on Mr Prasad. She says that at times she was crying while she did so.
1 R v Prasad [2024] NZDC 16998.
[7] During the booking, Ms X pushed a button on an intercom and told her manager that she was leaving the room. She made an immediate complaint to her manager and Mr Prasad was escorted off the premises of the club. He was asked to pay a further $200 fee which he did, and which was later provided to Ms X in cash. The normal process at the club is for a client to pay a booking fee for the room and a
$160 payment, referred to as a “tip” to the escort booked. The cash tip is normally collected by the escort from the client at the beginning of the booking prior to any services provided.
[8] Mr Prasad told police that he had booked Ms X’s services but had been unable to maintain an erection. He said that he and Ms X had mutually touched each other, and he had then passed out after Ms X massaged him and when he woke up Ms X was upset for reasons unknown to him. I say passed out, but I think he has used the word “dozed off”.
[9] At trial the Crown called evidence from a forensic scientist Donna Foskin who confirmed that she obtained reference DNA samples from both Ms X and Mr Prasad. She also analysed samples taken from Ms X including an anal swab, a perianal swab and a rectal swab which were tested using the Y-STR test. This test can detect male DNA in a sample containing a lot of female DNA. Within the anal swab Y-STR results were obtained at two sites and replicated.
[10] Ms Foskin said that as only two results were obtained, the sample was deemed not suitable for comparison. A full Y-STR profile has 27 sites of the Y chromosome that can potentially be identified, so a full profile would be 27 sites. In a situation where only two out of a possible 27 sites were obtained, this was said to be not suitable for meaningful comparison because a lot of males in the New Zealand population would be likely to have those two results. No comparison was undertaken.
[11] The perianal swab was also tested using the Y-STR test and two unreplicated results were obtained. Because the resulted were unreplicated this DNA was unsuitable for comparison. No Y-STR results were obtained from the rectal swab.
[12] Ms Foskin confirmed in evidence that it is possible for contact to occur between two people or a person and an item, and DNA not be detected. There are many factors that affect the transfer of DNA including where ejaculation has not occurred or there has been the use of a condom. A major factor in this specific case was the delay between the event occurring and the medical examination, which was three days.
[13] Ms Foskin was asked about the nature of the anal swab which she confirmed to be an external swab. She was asked whether it was possible for DNA from the vagina to transfer to other areas. Ms Foskin confirmed that DNA can transfer from the genital area to the anal area. That conversation was specifically in regards to semen seeping between the areas. The rectal swab which was the internal swab was negative. Ms Foskin confirmed that the results of the anal swab could not prove penetration.
[14] Under cross-examination it was put to Ms Foskin that, if Mr Prasad’s reference sample showed that he did not have the two sites in the anal swab he would be excluded. Ms Foskin agreed with that but said it was not ESR practice to test when only two sites are identified. She said the danger in adopting that approach was that if Mr Prasad did have the two sites that would become an unmeaningful comparison. It is now accepted that the sample would be meaningless for inclusionary purposes, but testing could exclude Mr Prasad as having contributed to the sample if his DNA did not contain the two sites identified on the anal swab.
[15] Ms Foskin was asked about the possibility of undertaking testing to exclude Mr Prasad from being the contributor to the DNA found on the anal swab. Ms Foskin agreed that even if Mr Prasad had been excluded, that would not establish that contact had not occurred.
[16] Mr Prasad applied for the trial to be adjourned part-heard for the testing to take place. Ms Foskin said that the testing could be completed in a matter of weeks. The application was declined by the trial Judge.
[17] The applicant says that the DNA evidence was relevant to his case and the testing should have been permitted. He submits that the testing should occur now so that the evidence is available for his appeal.
The law
[18] As the appeal court seized of the proceeding this Court has authority in relation to the DNA swabs.2
Section 324 of the Criminal Procedure Act 2011(CPA) provides:
342 Custody of Exhibits
Any documents, exhibits, or other things connected with the trial of any person who, if convicted, is entitled or may be authorised to appeal against conviction or sentence—
(a)must be kept in the custody of the trial court or appeal court, as the case may be, in accordance with any rules of court:
(b)may be released in accordance with any rules of court.
[20] The respondent accepts that although the samples are not “documents” or “exhibits”, they properly can be regarded as “other things connected with the trial of any person”. The samples are presently in the physical possession of ESR but it is accepted that they remain within the Court’s ultimate control for the purposes of s 324 of the CPA.
[21] It is also accepted that this Court has the power to call for the production of the swabs under ss 334(1)(a) and 335(2)(e) of the CPA which provide:
(a)Power to receive and hear evidence
(1)An appeal court may require the court appealed from to provide it with—
(a)documents, exhibits, or other things relevant to the appeal; and
…
(b)Special powers of appeal courts in appeal involving conviction, sentence, or contempt
2 Milner v R [2019] NZCA 619 at [31].
(1)This section applies to an appeal or application for leave to appeal under subpart 3, 4, or 5.
(2)For the purposes of an appeal or application for leave to appeal, an appeal court may, if it thinks it necessary or expedient in the interests of justice,—
….
(e)order the production of any document, exhibit, or other thing connected with the proceeding if the court considers that its production is necessary:
[22] The issue is whether the proposed testing could lead to evidence that would affect the outcome of the appeal. If the testing could result in evidence that would or should have materially affected the decision of the District Court Judge that would be strong grounds to grant the application.
Discussion
[23] The hearing in the District Court took place over four days and the Judge heard from a number of witnesses including the complainant, Ms X, and the appellant, Mr Prasad. In order to assess the relevance of the proposed new evidence and the utility of further investigation of the DNA sample it is necessary to consider the evidential context into which the evidence fits.
[24] The issue at trial in respect of the charge relating to anal penetration distilled into a single question, namely whether the Crown had proven beyond reasonable doubt that the act occurred. Mr Prasad denied anally penetrating Ms X; and he denied any penile/oral contact which was the subject of the second charge. The issue of consent was not expressly raised by the appellant. It was never put to Ms X that she had consented, and Mr Prasad did not give evidence as to consent. The Judge, however, correctly directed herself that consent remained an issue which must be canvassed and noted that it had particular application in respect of Charge 2 — the charge of oral sexual violation.
[25] Ms X’s evidence-in-chief was presented by way of her evidential interview. She described that Mr Prasad was a client that she knew. In previous dealings he had been reluctant to use a condom. She described initial consensual activity and said that
Mr Prasad had difficulty maintaining an erection. She said she was lying on her stomach and that Mr Prasad said to her “am I gonna fuck your arse or are you going to suck my dick”. She said that she could perform oral sex, but that Mr Prasad knew that she did not do anal. Ms X said that Mr Prasad then began to penetrate her anus with his penis without her consent. She said she screamed and cried but he continued. Eventually she was able to throw him off. She was still crying, and Mr Prasad was suggesting she finish him off and they could get a drink. He tried to put his penis in her mouth, and she initially performed oral sex while crying before gathering her clothes and leaving the room, telling Mr Prasad he could keep the tip.
[26] Ms X was visibly distressed and told her manager that Mr Prasad had “fucked me up the arse without a condom”. Ms X said in evidence that the club could be tricky and would take away tips if there was an issue in the room. She described the option of leaving the room as very much a last resort because of the financial consequences. Ms X acknowledged that Mr Prasad did not have much of an erection. She agreed that Mr Prasad could have penetrated her “a lot worse” if his function was “decent” but maintained that he did penetrate her.
[27] The defence case was there was no anal penetration and there was no penile oral connection. It was put to Ms X that the evidence about that was fabricated. Ms X did not agree. Ms X acknowledged that her memory after she left the room was not particularly clear. She described telling one of the managers what Mr Prasad had done to her and that manager subsequently confronted Mr Prasad in the hallway. CCTV footage showed Ms X in the kitchen where she went after she left the bedroom, and it was apparent from the CCTV footage that Ms X was visibly distressed.
[28] Ms X confirmed that she had a conversation with a flatmate about seeking money from Mr Prasad to settle the matter. She said that she stood by it. She described some type of financial settlement as looking more like justice to her. It was put to Ms X that the act of anal penetration she described was physically impossible. Ms X did not accept that and neither did the Judge.
[29] The Crown called two of the club’s managers, both of whom described Ms X as very distressed after the incident. One of them described Ms X curled up in the
foetal position and the other described her sobbing. One of the managers confirmed that Ms X told her that her client had ripped his condom off and put his penis in her “bum”. The manager gave evidence that Mr Prasad was confronted about what had gone on in the room and responded, “No it’s all good, everything was fine, I was allowed to”. The manager replied “no” and that Ms X would not have done that. It was put to the manager that Mr Prasad had never said that he was “allowed to do it”. The manager replied that is what he told her.
[30] Dr Christine Foley conducted a medical examination of Ms X. Ms X told Dr Foley that she was engaging in consenting sexual conduct and that had changed to sustaining or experiencing anal penetration by penis and possibly digital or finger penetration, but Ms X was not certain about that. The essential allegation was of penile anal, anal contact, possible digital anal contact, and genital oral contact. As regards to the genital oral contact, Ms X said it “went both ways”.
[31] Dr Foley detailed her examination of the anogenital area and described an acute finding on the area of perianal skin which she described as where the outside skin transitions to the inside area of the anal canal. Dr Foley observed a split in the skin measuring about 4 millimetres in length “a relatively small finding, but a definite finding of a split in the skin”. Dr Foley’s description of the finding was non-specific, meaning that there can be a number of causes. It was not an anal fissure and Dr Foley’s opinion was that it was more likely to represent an injury to the area. Dr Foley said that it was not possible to differentiate between a laceration, which is a split of the skin due to being stretched beyond its elastic potential, or a scratch from a sharp object. Dr Foley agreed in cross-examination that the split could have been caused by a long fingernail and acknowledged that such an injury could occur in both a consenting and non‑consenting situation. She also accepted that the findings could have been caused by something other than sexual assault. While not definitive the Judge noted that the split was entirely consistent with the complainant’s evidence that she experienced pain and bleeding as a result of the anal penetration.
[32] Mr Prasad confirmed in his interview with police that he went to the club and paid for a “girlfriend experience” which included vaginal sex. Mr Prasad said he and Ms X went into the room, the agreement was for normal sexual activity, and he said
that he was having an issue with his erection. He said that Ms X charged him an extra
$200 for oral which he did not get. He said that Ms X was going to give him oral sex so that he could get a “hard on”. She agreed to do it, but he thought that is “when she didn’t wanna do it or something” he said, “but I’ve never forced her for anything”. He said that Ms X just walked out of the room all upset. He said that he had dozed off. The next minute the manager was saying he had to pay $200 for extra services and that Ms X was upset. Mr Prasad did not know what he was supposed to have done but just agreed to pay and walked out. Mr Prasad said he did not remember being pushed up by a wall by the manager which is what she described. When the allegations were put to him, first as to the sexual violation by anal penetration, he replied:
No. Na she, she had never agreed to something like that. She had never agreed to something like that. I know for sure. And plus I’m not getting an erection how can I do that.
[33] As to the sexual violation by oral connection, Mr Prasad said “I didn’t do that. I didn’t force” and that he was going to pay for oral. He said he did not remember her doing that to him as well.
[34] Mr Prasad elected to give and call evidence. Mr Prasad said that his intention was not to just have sex, but to go to the club and have relaxation time. He referred to having erection issues and to medical records which related to the size of his penis. He said that he had dozed off in the room and the next thing he heard was the door going bang. He dressed and went out of the room and one of the managers came through asking where Ms X was. He said he did not know and went to the bar. He said that another manager then came and pushed him asking “where’s [Ms X]” and “what have you done to her?”. Mr Prasad said he had done nothing; he did not know. The manager then said he had to pay $200. Mr Prasad said he initially questioned that but did not wish to argue because she had pushed him against a wall. He said he was given no reason for the request for the additional money.
[35] Mr Prasad expressed the view that he had caused Ms X frustration because he had dozed off and was not able to maintain an erection. He denied saying to the manager that Ms X had said “he could” in relation to the allegation that he had removed his condom and penetrated her anally. Mr Prasad maintained that Ms X had fabricated her complaints, suggesting the complaints were financially motivated.
[36] Ms Z who was flatting with Ms X said that she and Ms X were evicted from their flat two weeks after the incident; and that Ms X raised with Ms Z whether Mr Prasad would give her money. Ms Z described Ms X as appearing desperate. Ms Z described Mr Prasad as one of Ms X’s favourite clients. Ms Z said that Ms X said she did not remember what happened but did say that he had tried to do a “back door”. Ms Z asked whether it happened, but Ms X indicated she was not sure and did not remember. Ms Z also recounted how some girls at the club would talk about getting money from a client if they mentioned they were going to the police. Ms Z gave evidence of a discussion about whether Ms X could charge Mr Prasad $2,000 for not using protection.
[37] Mr Prasad’s current partner described the nature of their sexual relationship and Mr Prasad’s issues with maintaining an erection.
[38] The forensic evidence revealed evidence of replicated male DNA on the external anal swab and unreplicated male DNA on the perianal swab. The perianal area is where the outside of the anus transitions into the anal canal. The unreplicated sample was not suitable for comparison. There was no male DNA detected internally. The DNA was unable to be matched to any male as it was only seen at two of the 27 possible sites. The Judge put the DNA evidence to one side as inconclusive.
[39] The applicant says that the Judge should not have described the forensic evidence as inconclusive when it could have conclusively shown:
(a)whether Mr Prasad was not a contributor to Ms X’s anal DNA sample; and
(b)if Mr Prasad was not a contributor, Ms X’s credibility would invariably be called into question because her evidence was that she did not provide anal sexual services, and that Mr Prasad was the only one who had anal sex with her and that he did so without her consent. If male DNA found in Ms X’s anal sample did not match with Mr Prasad’s DNA, it would have shown that Ms X did have anal sex with some third-party contrary to her evidence which would affect her credibility.
[40] I have some difficulty with the suggestion that if the DNA on the anal swabs could not have come from Mr Prasad, that would affect Ms X’s credibility. I disagree for three reasons. First, the applicant is proceeding on the basis that the male DNA came from semen. That cannot be established. Ms Foskin gave evidence that the Y‑STR testing is so sensitive that a few cells can provide a result and penile or digital penetration without ejaculation could result in a positive finding for DNA. These cells do not need to come from seminal fluid or semen. They could be skin cells. Second, the DNA was located externally and could not establish anal penetration. Thirdly, even if the result was suggestive of anal penetration, which it is clearly not, Ms X’s evidence about that was limited to the services that she provided as a sex worker. Exploration of when she might be willing to have anal intercourse would require an application under s 44 of the Evidence Act 2006 and permission to explore Ms X’s sexual experience which would require a very high degree of probative value.
[41] The applicant submits that the Judge grossly erred because she failed to appreciate that if Mr Prasad did not have the two sites identified, it would definitively confirm that Mr Prasad was not a contributor to the anal DNA sample. The applicant says that the Judge was incorrect to rely on the evidence of Ms Foskin:
that the danger in adopting the approach suggested [comparing the sample to Mr Prasad’s sample] was that if Mr Prasad did have those two sites that would become an unmeaningful comparison.
[42] The applicant’s position is that it would be meaningful if he were excluded as having those two sites.
[43] Again, I have difficulty with that submission. The fact that the Judge declined the application for the testing to occur simply reflected the Judge’s view that the evidence was of no use either way. I agree with that finding. It is a shorthand way of saying that even if the DNA excluded Mr Prasad (and the Judge was open to the idea that it could have done) it would have made no difference to her finding. The male DNA was on the anal swab which was external. It was not on the rectal or perianal swabs which are internal, or partially internal. Even if it had been this was not a case where identity was in issue. If another male deposited DNA and Mr Prasad did not, it does not establish anything. The penetration alleged could have occurred without any
of Mr Prasad’s DNA being recovered. The expert evidence was quite clear on that point and not contradicted.
[44] Mr Prasad complains that the Judge appears to have placed weight on Ms Foskin’s evidence of the possibility that “semen from the vagina could seep down to the anal area” and that somehow negated the probative value of DNA comparison. He says that the possibility of any seepage was an irrelevant consideration because both Crown and Defence agree that Ms X and Mr Prasad did not have vaginal sex. As such, any seepage of semen could not have contained Mr Prasad’s DNA in any case. Again, the problem is that the DNA did not necessarily come from semen. Given the expert evidence that semen and seminal fluid is a particularly rich source of DNA, the absence of any internal sample of male DNA and the very limited result the evidence already supports a submission that Mr Prasad did not deposit any semen inside Ms X’s rectum. That submission is available for the purpose of the appeal. Ms X was a sex worker. The possibility of a male contacting the outside of her anal area seems unremarkable. Further, the potential for DNA to have been transferred from the genital area was acknowledged by the expert witness.
[45] Mr Prasad submits that he is willing to take the risk of a positive match because he is definite that the result would not be a positive match. He submits this supports that he is “innocent”. He submits the Judge should have allowed the application to adjourn for testing of the sample as it would have readily and conclusively “proved or disproved” whether his DNA was in the anal sample. Mr Prasad says that the failure to permit the testing during trial was a serious miscarriage of justice.
[46] To say that the testing would conclusively prove or disprove whether Mr Prasad’s DNA was present is incorrect. It could prove it was not Mr Prasad’s DNA if he does not have the two sites identified but not that it was his DNA if he does. But if he could not have contributed to the sample what would that mean?
[47] The application for the anal swab to be tested was made partway through the trial and would have required a delay of a number of weeks. Obviously, if the evidence was sufficiently important in the context of trial that would be perfectly possible in a
Judge-alone trial and should have occurred. In a jury trial, if the evidence was sufficiently important, there would inevitably have been a mistrial.
[48] On this issue I look at the matter afresh, and specifically on the basis that the DNA testing would exclude Mr Prasad. I ask myself whether that finding would or could lead to a different verdict assessing the matter afresh.
[49] I come to the conclusion that it would not lead to any difference in the approach taken by the Judge. The Judge found Ms X a credible and reliable witness and the reasons she gave were compelling. Ms X’s account was supported by immediate and consistent complaint evidence and CCTV footage of her in distress. Ms X had an injury to her anal area that, while not determinative, was consistent with what she said had happened. Ms X left the room during a booking despite the likely financial consequences to her.
[50] The DNA evidence was neutral — whether it excluded Mr Prasad or not. If it could have come from him it tells the Court nothing because it could equally have come from others. If it could not have come from him it also tells the Court nothing because, as the forensic scientist explained, there are many reasons why DNA may not be found following an incident of intercourse. That includes the passage of time. I also infer that it includes the probable lack of ejaculation given that Mr Prasad and the complainant describe erection issues and a desire by Mr Prasad to engage in further oral penile connection after the anal penetration to assist him with his erection.
[51] There is nothing in the submission that Mr Prasad in seeking the testing is willing to take a risk that the DNA will implicate him. It is incapable of doing so. If his DNA has the two sites that the male DNA from the swab has, it tells the Court absolutely nothing and is so irrelevant that the evidence should not even be admissible. If Mr Prasad were excluded as the contributor of the sample, that also tells the Court nothing. It is an absence of evidence. It does not mean that he did not violate Ms X in the way that she says that he did. At best, it says that Mr Prasad’s DNA was not on the complainant, but the Judge in putting aside the DNA proceeded on that basis anyway. It does not mean that Ms X had anal intercourse with another male. It means only that there is a trace of male DNA on her external anal area. The identification of
male DNA, even if I proceed on the basis that Mr Prasad is positively excluded as the contributor, is simply a neutral factor that cannot assist one way or another.
[52] Had the testing been undertaken and had the result excluded Mr Prasad as a contributor, the Judge would have been required to put the DNA evidence aside and consider whether the other evidence proved the case beyond reasonable doubt. That is exactly what she did do and was the correct approach. Whether the evidence was in fact sufficient to prove the case beyond reasonable doubt and whether the verdict was otherwise in error is an issue for the Court hearing the appeal, but further testing of the DNA sample will not assist.
[53] Requiring testing of samples of this nature which can tell the Court nothing and would not have any impact on the verdict, would be to place an unjustified burden on ESR which is already overstretched. Such a requirement would create further delays to criminal trials and unnecessary expense.
Conclusion
[54]The application is declined.
Wilkinson-Smith J
0