R v Ali

HOEBEN CJ at CL:

Section 5F(3A) relevantly provides:

The respondent has been charged with one count of sexual intercourse with a child under 10 years and in the alternative, indecent assault on a person under 16 years.

The Crown case is that the respondent digitally penetrated the 7 year old complainant as they sat on a lounge at her grandmother’s house. They had been left alone when her mother went upstairs to change her younger son’s nappy. The complainant’s mother returned downstairs to get some baby wipes and was approaching a glass door that led into the lounge-room when she saw the respondent put his right hand in between her daughter’s legs, pull her shorts and underpants to one side, and then appear to push his fingers into the area of her daughter’s vagina. The mother confronted the respondent who then left.

The matter has a most unfortunate history. The respondent’s trial has been fixed for hearing on six occasions: 2 October 2012, 27 May 2013, 5 August 2013, 17 February 2014, 21 July 2014 and 10 November 2014.

On 19 February 2014 during the course of the trial which commenced on 17 February, North DCJ excluded DNA evidence relating to the presence of two male DNA profiles on the complainant’s underpants, one of which was consistent with that of the respondent. His Honour also excluded evidence relating to an area of staining, consistent with blood, on the interior crotch of the underpants and on the exterior hip. The trial continued thereafter but was aborted for other reasons after the Crown address.

Another trial commenced on 10 November 2014 before North DCJ. The Crown sought to adduce evidence comprising a further DNA certificate providing evidence of the location of the complainant’s DNA in the underpants and referring to the presence of blood on the complainant’s underpants. The Crown also sought to adduce medical evidence which depended upon the admissibility of the DNA evidence for its admissibility. On 11 November 2014 North DCJ rejected the further DNA certificate and the medical evidence.

The grounds of appeal relied upon by the DPP are:

The matter has been stood over for trial in the District Court on 18 May 2015.

The complainant, who was then aged 7, with her mother and two brothers aged 8 and 1, was visiting her grandmother on 26 December 2011. The respondent who lived nearby was also present. The respondent was well known to the complainant’s mother and to the complainant. The grandmother’s home was on three levels, with the bedrooms on the top level and the lounge-room on the middle level. There was a stairwell between each floor with a glass door leading from the stairwell to the lounge-room.

Between 8.30pm and 9pm the complainant’s mother left the lounge-room in order to change the youngest child’s nappy in one of the bedrooms. The respondent and the complainant remained alone in the lounge-room. After being upstairs for about ten minutes, the applicant’s mother decided to go downstairs to get some wipes and as she did so, she observed the respondent sitting next to the complainant. She then observed the complainant to engage in the conduct already described. At this time the complainant was wearing small pink and blue coloured shorts, underpants and a coloured t-shirt. In a later statement the complainant’s mother said that she also observed the respondent touch the complainant’s breast area.

After the complainant’s mother had told the respondent to leave, and he had departed from the premises, she remained extremely upset and told her mother and another person, Ms Turner, who was also at the premises, what she had seen. At this time the complainant was also upset and crying.

The complainant’s mother said that she took the complainant into the downstairs toilet where she pulled down her shorts and underwear to check if there was any bleeding. She did not notice any bleeding but saw some redness. The complainant’s mother contacted the authorities and police arrived at the scene at about 9.30pm.

There was an issue before the primary judge as to exactly how the police came into possession of items of clothing belonging to the complainant. It was the complainant’s mother’s evidence that she removed the complainant’s shorts and underpants and handed them to a female police officer, Constable Allen. The police officer’s evidence is set out in a statement of 10 February 2012:

There was apparently some delay at the Children’s Hospital and no examination was conducted that night, although a history was obtained. The complainant returned to the hospital the following afternoon where she was examined by Dr Deborah Perkins. During the examination of the complainant’s vagina, two discrete areas of erythema, or redness of the skin, were identified. One was at the five o’clock position on the inner vestibule wall with some extension up the left vestibule wall of the vagina. The second area was on the right vestibule wall. The vestibule is the area immediately in front of the hymen. The hymen showed no evidence of injury.

The complainant was interviewed at 1.10pm on 27 December 2011. During that interview she told police that the respondent, whom she referred to as “Alex”, was her “nan’s next door neighbour”. She said that he touched her on her “rude part”. When asked about touching, the applicant said it was “in my clothes”. She also referred to the touching as “deep” and “down”. The complainant said that when she was touched, she felt “sore” everywhere.

Constable Allen, who received the complainant’s shorts and underpants, placed them in two separate exhibit bags, but did not herself mark each exhibit bag so as to identify its content. Although the two exhibit bags were entered into the police exhibit system, one of them was incorrectly marked as containing a singlet. The other was correctly marked as containing the complainant’s shorts. The contents of the exhibit bag which was wrongly marked as containing a singlet, were not forensically examined because there was no complaint at that time relating to the complainant’s upper body. Only the complainant’s shorts were forensically examined. Dr Franco, a DNA expert, prepared two reports concerning DNA found on the complainant’s shorts.

On 30 May 2013 during the course of the trial which commenced on 27 May, the error in relation to the labelling of the exhibit bag containing the complainant’s underpants was detected. This led to the aborting of that trial. The evidence of the police officer who discovered the error (Detective Hector), was that when she opened the incorrectly labelled exhibit bag it was sealed and there was no evidence that the bag had been previously opened. When the underpants were discovered, they were referred to Dr Franco for DNA analysis.

Three analysts’ certificates were produced by Dr Franco. Only the first and third certificates are relevant. Their content is as follows:

Following a three day voir dire on the admissibility of the DNA Certificates, North DCJ excluded the evidence. His Honour’s process of reasoning was as follows.

His Honour reviewed the evidence on the voir dire, paying particular attention to the mislabelling of the exhibit bag which was found to contain the complainant’s underpants and the explanation for why the underpants had not been forensically examined until June – July 2013. His Honour said in relation to the evidence of Dr Perkins:

His Honour then set out the contents of the three DNA certificates and reviewed the evidence of Dr Franco. His Honour noted that Dr Franco acknowledged the possibility of secondary transfer of DNA but that she thought it was more likely that an indirect transfer of DNA would come from a bodily fluid such as saliva. Dr Franco said that there were many variables associated with the secondary transfer of DNA and that something was less likely to be found on the inside of a garment than on the outside. Dr Franco agreed that sweating could help secondary transfer but that bodily fluid was more likely than skin cells to transfer DNA.

Having reviewed the evidence, the primary judge expressed concern as to the continuity of custody of the garments which were the subject of the DNA certificates, in particular the underpants. His Honour noted that there was evidence from the complainant’s mother that she handed the complainant’s clothing to the police but that the evidence of the complainant and Constable Allen was that the complainant had removed the clothing herself and handed it to Constable Allen.

His Honour noted the concessions by Dr Franco as to the possibility of secondary transfer of DNA onto the underpants. He also noted the presence of other male DNA on the underpants which in his opinion had not been satisfactorily explained.

His Honour concluded that the evidence left open the distinct possibility that contamination and/or transference of the DNA onto the underpants had occurred. He found that no-one had posited a theory as to how the other male DNA, not in anyway associated with the respondent, was found on the underpants. He noted that the respondent had been physically close to the complainant from time to time during the day before the incident was alleged to have occurred.

His Honour expressed his conclusions as follows:

By reference to s137 of the Evidence Act 1995 (NSW) his Honour said:

On 18 July 2014 Dr Franco provided a further certificate identifying the female DNA located in the area of the discolouration or stain, thought to be blood, on the inside crotch and left outside hip of the underpants as that of the complainant. The complainant’s DNA sample had been provided for comparative analysis on 7 July 2014. Testing was done on the stain found on the left hip to establish that it was human blood. As at the date of the second ruling, this level of testing was not done for the blood found on the interior crotch area. In this area the presumptive test result was positive for blood but not that the blood belonged to the complainant.

At the commencement of the trial on 10 November 2014 which was again before North DCJ, the admissibility of this fourth certificate and further medical evidence was objected to. The Crown accepted that the admissibility of the further medical evidence was dependent on the fourth DNA certificate being admitted.

Evidence was taken from Dr Franco. She confirmed that the stain on the left hip was definitely blood. She said that in relation to the stain on the interior crotch, a screening test was presumptively positive for blood and because the DNA located there was from a very strong source, it was her conclusion that the stain was most likely blood from the complainant.

The Crown submitted that the material in the fourth certificate was not caught by his Honour’s earlier ruling because it confirmed that the female DNA profile, located within an area of staining on the interior crotch area, was likely from blood. The Crown submitted that his Honour’s previous ruling related to the admissibility of the location of the respondent’s DNA, not that of the complainant. The Crown submitted that the significance of the blood stains had not been raised in his Honour’s previous ruling.

The additional evidence of Dr Perkins also relied upon by the Crown was:

The primary judge found that nothing had changed since his first ruling and that the fourth certificate, and the medical evidence relating to it, did not cure the problems of continuity, possible contamination or secondary transference. His Honour excluded the evidence.

In reaching that conclusion, his Honour reviewed the further evidence of Dr Franco and noted that it was her opinion that the area tested from the interior of the crotch of the underpants contained the complainant’s blood which was a stronger amount of DNA than found in the left hip area which had been positively identified as the complainant’s blood. Dr Franco thought it was unlikely to result from touching by a finger, unless it was bleeding or unless it was loaded up with saliva.

In relation to that evidence, his Honour noted that neither the mother nor Dr Perkins saw any blood and that Dr Perkins when describing her examination of the complainant made no mention of any blood. His Honour noted that the complainant’s mother said that she was specifically looking for blood and did not see any when she examined the complainant.

His Honour’s conclusion was:

It is convenient to deal first with the DPP’s second ground of appeal:

The DPP submitted that the evidence of Dr Franco was that in relation to the inside crotch of the underpants, it was possible for the male DNA to have been deposited there by direct transfer. She said it was also possible for the male DNA to have been deposited there by indirect transfer if a number of variables aligned but that it was more likely for an indirect deposit to be on the outside of clothing rather than on the inside of clothing or on a more intimate part of the clothing because such places were not generally in contact with surfaces or other places where DNA could be deposited and transferred.

The DPP submitted that the cross-examination of Dr Franco did not seek to cast doubt on the fact that the respondent’s DNA was on the inside of the complainant’s underpants but sought to offer an explanation as to how it may have got there. The issue raised by the defence was that the complainant may have acquired the respondent’s DNA on her hands during the course of her contact with him during the day and that she may have then transferred his DNA from her hands to her clothing when she removed her clothing and handed it to the police officer.

The Crown submitted that ordinarily continuity in relation to clothing which produced DNA results and contamination were each issues of fact to be determined by the jury. It submitted that in this instance there was no good reason to exclude the DNA evidence. The DPP submitted that by basing his rejection of the evidence on issues of continuity of possession and the possibility of contamination of the underpants, his Honour had trespassed upon the function of the jury.

The DPP submitted that the problems with continuity and contamination were significantly overstated. In relation to continuity, the DPP submitted that the police continuity chart and the evidence of police officers whose actions gave rise to that chart, did not provide a basis for a finding that continuity or chain of possession could not be established. The DPP submitted that while it was clear that the exhibit bag containing the underpants was wrongly labelled, there was no evidence that there had been any interference with the exhibit between when the underpants were placed in the exhibit bag by Constable Allen and when the error was discovered by Detective Hector. On the contrary, the evidence was that the exhibit bag marked “singlet” had remained sealed throughout that period. In any event, that issue remained a jury question.

In relation to contamination, the Crown submitted that the only issue was whether the complainant’s mother, in addition to the complainant, had touched the underpants before they were handed by the complainant to Constable Allen. The presence of DNA from another male in a quantity too low for analysis on the underpants did not confound the finding of DNA consistent with that of the respondent. On the contrary, the presence in the household of the complainant’s two brothers and the explanation by Dr Franco of secondary transference of DNA provided an adequate explanation. Dr Franco gave a specific example of transfer of DNA in the wash, having noted that the complainant lived with her two brothers, each being a half brother with different fathers.

The DPP submitted that it was not unusual for evidence relied on by the Crown to be open to more than one interpretation or being capable of giving rise to more than one inference. It submitted that this was not a basis for ruling the evidence inadmissible. Provided that the evidence was capable of bearing the interpretation, or of giving rise to the inference contended for by the Crown, it was admissible even if the defence were able to suggest some other interpretation or inference consistent with the innocence of an accused. Such a circumstance did not establish that the probative value of the evidence was outweighed by the danger of unfair prejudice. The DPP submitted that it was an essential function of a jury as judges of the facts, to determine what interpretation should be given to such evidence and that it was the jury and the jury alone which determined what inferences should be drawn from such evidence as they accepted.

The DPP relied upon R v Kalajzich (1989) 39 A Crim R 415 at 430 where the Court (Yeldham, Carruthers and Wood JJ) approved the following statement of principle by McPherson J in R v Berrill [1982] Qd R 508; 5 A Crim R 431:

The DPP submitted that the approach to ss 135 and 137 of the Evidence Act by his Honour was contrary to the decisions of this Court in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 and R v XY [2013] NSWCCA 121; 84 NSWLR 363. The DPP submitted that in accordance with those decisions, his Honour’s task in determining the admissibility of the certificates required an assessment of whether the evidence was “capable” of establishing a particular issue. The DPP submitted that his Honour’s task did not require the assessment of the credibility, reliability or weight of such evidence since those were matters which should be left to the jury if the evidence were admitted.

The DPP submitted that his Honour’s finding that the jury would overreact or approach the evidence in an illogical or irrational manner by reason of the fact that the certificates had the backing of science, understated the capacity of the jury to understand evidence which was not particularly complicated. The DPP submitted that the evidence of the respondent’s DNA being in the complainant’s underwear was not manifestly unreliable such that a jury would attach more weight to it than it deserved. The DPP disputed his Honour’s conclusion that no directions could be given to the jury as to the uncertain chain of continuity and that the importance of that issue was overstated by his Honour.

The respondent raised no additional arguments beyond those which had been put to the primary judge. The respondent relied upon his Honour’s findings and his Honour’s reasoning.

The submissions of the DPP should be accepted. While there were difficulties with the chain of possession, and there was a possibility of contamination, those difficulties were overstated by his Honour. They were issues which were quite capable of being explained to the jury and understood by them. Most importantly, however, his Honour’s approach to the question was not in accordance with the proper application of s137 of the Evidence Act 1995. In R Shamouil Spigelman CJ (with whom Simpson and Adams JJ agreed) said in relation to s137:

In R v XY Basten JA (with whom Hoeben CJ at CL and Simpson J agreed) said in relation to s137:

Keeping in mind the above principles, when one applies s137 of the Evidence Act to the three DNA certificates, it is apparent that the section does not bar their admissibility. It is open to a jury, acting reasonably, to use the certificates in assessing whether the respondent committed the offences with which he has been charged. The capacity of the certificates to establish that issue, as distinct from the weight likely to be given to them, is substantial. Accordingly, the certificates have significant probative value.

That has to be balanced against the capacity of the evidence to give rise to unfair prejudice, i.e. the likelihood that the jury would give the evidence more weight than it deserved or that it might inflame the jury or divert them from their task. For the reasons already given, such unfair prejudice is unlikely to arise given the relatively simple issues confronting the jury as to continuity, contamination and the possibility of secondary transfer. To the extent that there is such a risk, it can be adequately dealt with by appropriate directions. Directions of this kind relating to DNA evidence are frequently given by judges.

The proposition that DNA evidence carries with it the backing of science is true of all DNA evidence. This does not mean it is unfair. The issue of whether too much weight might be given to such DNA evidence can be adequately cured by appropriate directions depending upon the nature of the evidence.

It follows that when the balancing exercise required by s137 is appropriately carried out, the section does not preclude the admissibility of the three DNA certificates. This ground of appeal has been made out.

The DPP repeated its submissions before the primary judge to the effect that the fourth certificate and the medical evidence were not covered by his Honour’s ruling of 19 February 2014. The DPP submitted that the February 2014 ruling related to the presence of the respondent’s DNA within the complainant’s underwear, not the admissibility of evidence relating to the staining on the underpants, which had presumptively tested positive for blood.

The DPP submitted that the fourth certificate made it clear that the female DNA profile taken from the staining on both the exterior left hip and on the interior crotch was consistent with that of the complainant. Neither that fact nor the confirmation that the staining on the exterior left hip was human blood was previously known. That being so, the DPP submitted that the evidence could not fall within the ambit of the first ruling.

The DPP submitted that the fact that there were observable blood stains on the underpants negated concerns about tampering and continuity. This is because insofar as the evidence related to the complainant’s blood on the underpants, there was no suggestion that this could have been influenced by contamination or otherwise.

The DPP submitted that for the same reasons the additional evidence from Dr Perkins to the effect that the complainant could have bled with the type of erythema which she observed had significant probative value because it had the capacity to rebut a substantial part of the defence case. It was the defence case during the aborted trial that the complainant’s mother fabricated the allegation and caused her daughter to also fabricate the complaint.

The DPP submitted that his Honour erred in the way in which he assessed the admissibility of the fourth certificate and the addendum to the report of Dr Perkins. This was because his Honour considered that this evidence was covered by his earlier ruling and had not carried out the balancing exercise required by s137. The DPP submitted that his Honour had not considered the probative value of the evidence and balanced it against any unfair prejudicial effect. The DPP submitted that the fourth certificate and the addendum to Dr Perkins’ report were clearly fresh evidence and could not fall within the ambit of his Honour’s previous ruling.

The DPP submitted that had his Honour carried out the balancing exercise required by s137, he would have realised that the issue of continuity simply did not arise insofar as the complainant’s blood on the underpants was concerned. This was because there was observable staining on the complainant’s underwear in circumstances where the underpants were recovered by police shortly after the offence and placed in an exhibit bag. This made it highly unlikely that the exhibit was tampered with or contaminated. There was no evidence of how that could possibly have taken place. The DPP submitted that the very fact that the underpants had been placed in a bag incorrectly labelled made the prospect of any interference or contamination much less likely.

The DPP reiterated its earlier submissions that his Honour had erred in his approach to s137 generally in that matters of continuity and contamination were matters of fact and issues for the jury to consider and should not have been taken into account when considering admissibility. The DPP submitted that the lack of explanation of how the exhibits bag containing the underpants came to be mislabelled, that there was no adequate explanation for the failure to conduct testing before the second trial and that the previous trial had aborted due to the Crown’s closing address, were matters irrelevant to the admissibility of the fourth certificate and the addendum to Dr Perkins’ report.

The DPP submitted that the issue of whether the stain in the crotch of the underpants was blood from the complainant was an issue to be determined by the jury, having the benefit of the expert opinion of Dr Franco, to the effect that it was most likely the complainant’s blood. The DPP submitted that his Honour was in error when he acknowledged this conclusion of Dr Franco, but determined that in order to make this finding admissible there had to be a further test to positively identify the blood. The DPP submitted that in doing so, his Honour implicitly rejected the expert opinion of Dr Franco which was impermissible in the context of purporting to apply s137.

The respondent relied upon the submissions which he had made to the primary judge and on the reasons given by the primary judge for rejecting the fourth certificate and the addendum to Dr Perkins’ report.

The DPP’s submissions should be accepted. The fourth certificate and the addendum to Dr Perkins’ report were not covered by the primary judge’s ruling of February 2014. They raised different issues and his Honour was required to carry out the balancing exercise mandated by s137, i.e. balancing the probative value of the evidence against unfair prejudice. This his Honour did not do.

To the extent that his Honour purported to apply s137 to the admissibility of the fourth certificate and the addendum to Dr Perkins’ report he was in error in that he did not consider the capacity of the evidence to establish the Crown case, but rather usurped the function of the jury by assessing its weight and reliability. In doing so, his Honour failed to follow the guidance provided by this Court in R v Shamouil and R v XY. Had the balancing exercise required by s137 been carried out, the section would not have rendered the evidence inadmissible.

This ground of appeal has been made out.

For the reasons already given, none of those sections provide a basis for his Honour rejecting the four DNA certificates and the addendum to Dr Perkins’ report. To the extent that his Honour relied upon s90, he did so on the basis that the unreliability of the evidence would make it “unfair” to permit its use in the trial. Similar considerations applied to his Honour’s application of sections 135 and 136. The factors relevant to the application of these sections and the error in his Honour’s approach have been considered above.

The respondent submitted that even if his Honour erred in the way in which he approached the application of sections 90, 135, 136 and 137 of the Evidence Act 1995, this did not enable the DPP to obtain an order under s5F(3A). The respondent submitted that the weight and reliability of the DNA certificates and the addendum to Dr Perkins’ report have to be taken into account by this Court when deciding whether the exclusion of the evidence substantially weakens the prosecution case. The respondent submitted that the findings and criticisms of the primary judge of the weight and reliability of that evidence had the effect that its absence would not “substantially weaken” the prosecution case. He submitted that the evidence was so weak that it would almost certainly be rejected by the jury, even if it were admissible.

This issue was considered by Simpson J in R v XY where her Honour said:

It is apparent from that statement of principle that the respondent’s submission is misconceived. What the Court looks at is the importance of the evidence in question on the assumption that the jury accept the evidence.

In this case the evidence in question has particular importance because of credit issues associated with the evidence of the complainant’s mother. Her evidence as to what she observed the respondent doing would normally be the centrepiece of the Crown case. Based on what occurred in the aborted trial, that evidence will be challenged on the basis that she deliberately fabricated the allegation and persuaded the complainant to give evidence in accordance with it. In that context, the importance of the evidence in question is particularly significant because if accepted by the jury, it provides independent corroboration of the mother’s evidence.

It follows that I am satisfied that if the evidence in question were excluded, the prosecution case would be substantially weakened so that the requirements of s5F(3A) have been made out by the DPP.

On finding error in an appeal under s5F(3A), this Court usually vacates the trial judge’s ruling and remits the matter to be determined according to the Court’s decision. There is power, however, for the Court to determine that the evidence, the subject of the appeal is admissible (R v Chanthovixay [2004] NSWCCA 285 at [60] and R v Frangulis [2006] NSWCCA 363 at [35]). Pursuant to s5F(5)(b). the Court may “give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against”.

In the present case, for the reasons already given, I am satisfied that the evidence has “probative value” which is not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or cause or result in undue waste of time and is admissible for the purposes of sections 135 and 137 of the Evidence Act.

Submissions in relation to the evidence in question have already been heard and evidence taken over five days in the District Court. Moreover, the history of this case is most unfortunate in that it has been listed for hearing on six occasions and has proceeded to hearing, at least in part, on three of those occasions. The matter has now been listed for hearing on 18 May 2015 and it is important for the parties that the matter proceed on that date without further delay. For those reasons, I have concluded that it is in the interests of justice for the Court to determine the issue of admissibility rather than to remit the matter for further argument in the District Court. When this proposal was put to the parties during the hearing of the appeal, both the DPP and the respondent agreed that this Court should determine the issue of admissibility rather than remit the matter to the District Court.

When discussing the orders to be made, the Court determined that should the appeal be successful and the addendum to the report of Dr Perkins become admissible, the second last paragraph of that report should be amended so that it reads:

Accordingly, the orders which I propose are:

ADAMS J: I agree with Hoeben CJ at CL.

R A HULME J: I agree with Hoeben CJ at CL.