R v Trinh[2021] QDCPR 40

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant has been charged with eight counts of contamination of goods with intent, contrary to ss 238(1) & 238(2)(c) of the Criminal Code.  Her trial is listed to commence on 12 July 2021.
2. [2]
   The prosecution asserts that in each instance the defendant inserted a needle into a strawberry, whilst possessed of the requisite intent.  As part of its circumstantial case it intends to rely on evidence to the effect that the DNA of the defendant was located on one such needle, as well as other evidence it asserts will, in combination, prove the guilt of the defendant.

Applications

3. [3]
   There are three separate grounds of objection raised prior to the trial, each of which seek the exclusion of evidence.
4. [4]
   First, the defendant seeks the exclusion of DNA evidence on discretionary grounds concerning the asserted unfairness in allowing the evidence to be admitted.
5. [5]
   Secondly, the defendant seeks the exclusion of evidence of a conversation between Jame Tran and the defendant, the contents of which will be explained later in this judgment.
6. [6]
   Thirdly, the defendant seeks the exclusion of evidence concerning an interaction said to have occurred between Yong Yah Tan and the defendant about a week or perhaps more prior to the discovery of the needles in the strawberries.

Factual summary

7. [7]
   The defendant was contracted to provide services to Ngoc Tran (aka Kevin Tran), who leases land at Elimbah, Bellmere and Wamuran on which he grows strawberries.  More specifically, she was contracted to provide personnel to pick strawberries and for her to supervise that personnel (the pickers).^[1] There was one other group of pickers. The defendant and her group of pickers variously worked the farms at Elimbah and Bellmere, although her group shared the picking responsibilities at Bellmere. The defendant had only been contracted since earlier in 2018,^[2] but she was known to have worked at other strawberry farms for many years.^[3]
8. [8]
   A system was used whereby each picker is assigned a particular number which becomes attached to a green tray into which the picker places the strawberries they have picked.  By that method it can be ascertained which picker, and hence which supervisor, is responsible for the particular tray.
9. [9]
   Ngoc Tran’s business policy was that all staff must wear gloves, hairnets, tie their hair back and not wear jewellery nor possess any items that can enter the fruit or its packaging.^[4]  However, two of the pickers supervised by the defendant said that they never saw the defendant wear gloves.^[5]
10. [10]
    When the trays were full the respective pickers left them at the end of the row of plants they were picking.  There the supervisor checked for green fruit, mould and rubbish in the tray.  According to Ngoc Tran, “[t]hey don’t physically sort through the trays, just mostly have a quick glance.  If there’s green berries in the trays they will pick them out.”^[6]  According to one of the pickers who worked under the defendant’s supervision, the defendant would actually physically touch the strawberries whilst checking their quality while they were on the tray.  In checking the quality, it is said that the defendant would just look at the strawberries but if there was dirt on them or some other issue she would take them out.^[7] 
11. [11]
    Once checked by the supervisor, the trays were then transported to a packing shed at the Wamuran farm by dedicated drivers where they were placed in a cool room. Occasionally the defendant might help carry the trays to the trucks.  Late each night packers attended the cool room and sorted the fruit according to its quality and placed it into punnets.  Each punnet was marked in a particular way, and so the person who packed a particular punnet could be identified. The punnets had on them one of two business names operated by Ngoc Tran.
12. [12]
    The punnets were then put on a conveyor belt and went through more quality control, where they were weighed and again checked for rubbish and quality.  The punnets were then packed into boxes which were in turn loaded onto pallets.  The pallets were then stored in a cool room until a truck delivered the pallets to one of two selling agents based at the Rocklea Markets.  That last delivery may have occurred up to twice a day depending on the amount of fruit processed.  It is clear that the process takes a number of days between picking the fruit to it being available for sale, although the precise time will naturally enough depend in part on the distance between the selling agent and the point of sale.
13. [13]
    The total number of workers is unclear but seems to have approached 100.
14. [14]
    Sewing needles are not used on, or kept on any of Ngoc Tran’s farms.^[8] Although they are readily available, there is evidence that the defendant had access to them.^[9]
15. [15]
    On Tuesday, 11 September 2018 Christopher Britton, the assistant store manager of Woolworths at Sebastopol,^[10] Victoria was alerted by management to a Facebook post concerning a strawberry bought at that store containing a needle.  He was instructed to remove all strawberries from sale and inspect them. Apparently that sale occurred on 9 September 2018.^[11]
16. [16]
    He and another employee cut up strawberries from 200 punnets contained in boxes bearing one of Ngoc Tran’s business names. These punnets were in boxes which were marked indicating that the fruit in it had been picked at Bellmere on 4 September 2018.  Both groups of pickers worked the Bellmere farm on 4 September 2018.^[12]
17. [17]
    In one strawberry he found two needles secreted adjacent to each other in the body of the strawberry. He took photographs of the strawberry and the needles, in the course of which he handled the needles although no detail of how they were handled is in the material before me. In a statement given almost two years later, he said he could not recall if he wore gloves, but he concludes that there is “a fair chance” he did not.^[13]
18. [18]
    In the course of his inspection, Mr Britton destroyed all punnets, including the one the strawberry containing the needles came from.  That particular strawberry is the subject of Count 6 on the indictment.
19. [19]
    The defendant herself is said to have not attended the farm since Sunday 9 September 2018, nor spoken to Ngoc Tran.  He expresses some surprise about that, given that he owes her money under the services agreement. 
20. [20]
    In late August 2018 or early September 2018, Ngoc Tran had occasion to speak with the defendant about the quality of the work that she and her pickers were doing. She was defensive about the criticism, although there is no suggestion that there was an argument between the two.^[14]
21. [21]
    In the week prior to the discovery of the contamination of the strawberries, the defendant had been driving one of Ngoc Tran’s trucks getting a tyre repaired when she was issued with a traffic infringement notice for in excess of $400. When she presented it to Ngoc Tran he told her not to speed.  That is the last conversation Ngoc Tran ever had with the defendant.^[15]
22. [22]
    The effect of the DNA evidence needs only be considered broadly for present purposes. The subject strawberry was received at the forensic laboratory in Victoria. It was loose in the same clip seal bag as the two needles that had been inside it. One of the two needles revealed the presence of DNA from two contributors resulting in a partial mixed DNA profile. In essence, the results indicate that it is more than 100 billion times more likely that the defendant contributed to that mixed sample than some other person chosen at random from the community when assessed against the Australian Caucasian, the Australian Asian and the Vietnamese databases. Other reference samples were considered in terms of the other contribution, and they were not likely to have contributed, although it appears that reference samples had not been provided for all workers.
23. [23]
    There are no other meaningful DNA results for the purposes of these applications from either the plastic container in which Mr Britton had stored and frozen the needles and strawberry or the second needle. However it is noted that someone associated with the forensic laboratory contaminated the testing of the container with their own DNA. The scientist who testified before me said that she does not know who it was or at what stage the contamination occurred as Victorian legislation precludes the identification of that person, and hence an understanding of at what stage the contamination may have occurred.^[16]
24. [24]
    Without recording the details of the cross-examination, the forensic scientist accepted that she is unable to say how DNA came to be on an item, that it is beyond dispute that DNA can be transferred from one item to another and that there were scenarios open whereby it was possible that the DNA of a person touching a strawberry in the field could be transferred to a needle later secreted in that or another strawberry. The witness said when considering a part of the scenario that it was “so dependent on so many different things”.^[17] I understood that comment to refer to much of the scenarios being put to her for comment. The suggested scenarios were, understandably, couched in terms of things that “might” happen and are “possible”.
25. [25]
    The remaining seven strawberries the subject of the other counts on the indictment were bought at various places in Queensland and Victoria between 9 September 2018 and 11 September 2018 inclusive. It is not suggested that there is any DNA evidence linking the defendant to any of these needles or other items.^[18] There is no evidence in the material before me as to how the defendant is evidentially linked to these seven other strawberries, but equally nothing is said to turn on that for the purposes of these applications.
26. [26]
    The prosecution also intend to lead evidence from Jame Tran to the effect that about one or two years prior to the contamination of the strawberries he had a conversation with the defendant, whom he had known for many years.^[19] This was at a time when it is likely Jame Tran was working for Ngoc Tran.^[20]  His recollection is that she, for no apparent reason and while smirking, said words to the effect “If I hate anyone I will put the needle in the strawberry and make them go bankrupt”. They were not talking about anyone in particular at the time and she said it “out of the blue”. It seemed to Jame Tran that she was just talking for fun.^[21]
27. [27]
    The prosecution also intend to lead evidence from a number of witnesses to the effect that on what must have been a day in late-August or early-September^[22] the other group of pickers, supervised by Yong Yah Tan, commenced picking strawberries on the portion of the Bellmere property which was the defendant’s group’s responsibility. It was done at the direction of Ngoc (Kevin) Tran. The defendant became angry and picked up a metal stick and told the workers to stop because she didn’t need help. Yong Tan told her they were doing it because “Kevin” told them to and she replied “I don’t care about Kevin I don’t care about Kevin”.^[23] Some of the pickers recall that the two were arguing.^[24]
28. [28]
    The prosecution initially contended that there was further conduct which tended to incriminate the defendant. By written submission on 8 July 2021, the prosecution accepted that part of that conduct may have an innocent explanation which could not be negatived. In the course of oral submissions on 9 July 2021, it accepted that it could not rely on other aspects of that earlier relied on conduct. As a result, it expressly disavowed reliance on the conduct referred to in paragraphs 24.f (i) and (iii) of the respondent’s outline of submissions dated 17 June 2021. I have not taken any of that conduct into account in considering the applications.

Defence submissions

The application to exclude the DNA evidence

29. [29]
    In essence, the defendant submits that, assuming the DNA is in fact the defendant’s, there is a plausible and innocent explanation open on the evidence as to how the defendant’s DNA was located on the needle in one of the eight relevant strawberries, namely through secondary transfer of her DNA which was innocently placed in a relevant place in the course of her work duties, such as on a strawberry or the tray. It is submitted that the prosecution cannot exclude the possibility of secondary transfer accounting for it being on the needle.
30. [30]
    It is submitted that, in light of the innocent explanation and the potential to use the evidence as evidence of propensity, there is a real risk that the jury will place undue weight on the DNA evidence as it has an appearance of conclusiveness. It is submitted that directions cannot cure what is a significant risk of misuse of the evidence.

The application to exclude some of the evidence of Jame Tran

31. [31]
    The defendant contends that the evidence is irrelevant, and therefore inadmissible, or alternatively that it should be excluded as an exercise of discretion. 
32. [32]
    Concerning the first basis, it is submitted that the comment attributed to the applicant, does not amount to a statement against interest because:

    1. (a)
       it is not made contemporaneously with any relevant act, which all occurred in early September 2018;
    2. (b)
       it does not identify any individual to whom the defendant’s angst would be directed;
    3. (c)
       it occurred at a time before she was employed in any capacity by Ngoc Tran;
    4. (d)
       there is no evidence of ill-will or animosity held by the defendant towards Ngoc Tran; and
    5. (e)
       the context in which it was said, namely that the person to whom it was related regarded the comment as being something akin to a joke and that it did not mean anything.
33. [33]
    It is further submitted that adducing the evidence is “effectively an attempt to lead propensity evidence in the absence of proper evidence of an actual propensity on the part of the Applicant to behave in the manner alleged”.^[25]
34. [34]
    It is submitted that if the comment demonstrates anything, it demonstrates the defendant’s state of mind at the time it was said.  Given that is at least one or perhaps two years prior to relevant events, it is submitted that the evidence is simply irrelevant.
35. [35]
    In the alternative, it is said that the evidence should be excluded as an exercise of discretion under section 130 of the Evidence Act 1977. It is said that the coincidence between the words spoken may be considered by a jury as persuasive evidence identifying the perpetrator of the offence in count 6, but in reality, given the matters referred to above, the evidence is of slight weight. The risk of misuse by the jury, it is submitted, justifies the exclusion of the evidence.

The application to exclude the evidence of an interaction with Yong Yah Tan

36. [36]
    It is submitted that the conduct is completely irrelevant to the present charges. It is said that it at best illustrates some degree of temporary angst towards Yong Tan and does not demonstrate any animosity or ill feeling towards Ngoc Tran such as to amount to admissible evidence of motive to commit the charged offences.

Some Applicable Legal Principles

37. [37]
    In an application such as this the prosecution case must be considered at its highest, or in other words on the assumption that the jury will accept the evidence.^[26] The issue I am faced with is the admissibility of the evidence, not whether any conviction would be sufficient to sustain a jury’s verdict of guilt.^[27] As a trial judge, to approach the issue otherwise would be to encroach on the function of the jury.
38. [38]
    In a circumstantial case, the strength of any individual piece of evidence, and hence its probative value, is to be gauged in the context of the whole of the circumstantial case.^[28] Evidence which may appear weak when considered in isolation may gain strength from other pieces of evidence which the jury may accept. While the evidence, judged in light of the whole of the case, must have some degree of cogency to justify its admission,^[29] even evidence of slight probative value is admissible unless a principle of exclusion operates to exclude it from evidence.^[30]
39. [39]
    Although it is convenient to refer to a discretion to exclude evidence where its prejudicial value exceeds its probative value, in truth the discretion is only to be exercised where the probative value of the evidence is slight and the prejudicial effect if admitted is substantial.^[31] The approach of the courts should be

“… one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge's directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration. Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory.”^[32]

40. [40]
    Such an approach allows for the “genius of the jury system”^[33] to operate as intended. Nonetheless the admission or exclusion of evidence must be approached in a principled manner. Evidence cannot be allowed to be admitted on the basis that the jury will sort it out, if it should not be admitted in the first place.
41. [41]
    In deciding whether any prejudice is substantial, consideration may be given to the impact of any judicial warnings or directions as to the use of the evidence. In performing that assessment, it must be assumed that the jury will faithfully follow the directions and apply the warnings given.^[34]
42. [42]
    Evidence of motive is relevant, but not necessary.^[35] Juries in circumstantial cases are sometimes directed to the effect that whilst evidence of motive may help explain conduct and make the otherwise inexplicable appear reasonable, a motive may exist to commit the charged offence even though it is not known to the prosecution.^[36] To be admissible as evidence of motive, the Court need not consider whether it considers the asserted motive is sufficient or reasonable to explain the conduct, only whether it is sufficiently relevant to be left for that purpose.^[37]

Consideration

43. [43]
    As the exercise of a discretion to exclude the DNA evidence turns in part on an assessment of the nature of the prosecution’s circumstantial case, it is appropriate to consider the second and third applications first.

The application to exclude some of the evidence of Jame Tran

44. [44]
    If admitted, the prosecution intend to use the impugned comment as proof both of the identity of the offender and as going to proof of the particularised intent in the circumstance of aggravation.
45. [45]
    In their broad context, it is open for a jury to accept that the comment was made to a long term friend at a point in time one to two years prior to the charged events, and at a time when Jame Tran was employed by Ngoc Tran but the defendant was not, although she had by that time been engaged in the seasonal strawberry picking industry for many years. The jury may accept that she was smirking when she said those words, but do not have to accept that she said them in jest.
46. [46]
    Although Jame Tran recalls that it was said “out of the blue”, a jury is entitled to conclude that his memory may be faulty about that and that there must have been something to precipitate it. In any event, a jury can properly conclude that the comments must have been made about some employer^[38] in the industry in which they were both then engaged, albeit with different employers.
47. [47]
    Given the passage of time between the utterance and the relevant conduct, it is natural to look for evidence of motive at the time of the offending. There is in my view some, albeit not much, admissible evidence of evidence of animosity or ill-will that might fall under the general rubric of “motive”. The applicant has not sought the exclusion of that. It is a matter for the jury what, if anything, they make of it.
48. [48]
    Contrary to the applicant’s submission, adducing evidence of what was said is not akin to adducing evidence of propensity. There is no suggestion the applicant had previously acted that way. The words spoken are evidence that that the defendant had at some point in time considered the ability to cause financial hardship to an employer by placing a needle in a strawberry. That circumstance tends to place the defendant in a limited class of people. Further, the defendant had the opportunity to secrete the needles given she was working at the Bellmere farm on the day the contaminated strawberry was picked and the processes are such that, if inserted by the defendant, it had to have occurred on the same day as that strawberry was picked.
49. [49]
    The passage of time between the utterances and the relevant conduct is obviously a matter which affects the weight to be afforded to this evidence, but must be judged in all of the circumstances. In my view, the passage of time in the circumstances of this matter is not sufficient to deprive the evidence of probative value,^[39] nor is the fact that the utterances do not directly reference the ultimate victim, Ngoc Tran although both detract from the probative value of the evidence.
50. [50]
    The evidence is relevant as it bears upon the determination of facts in issue. Although there are weaknesses with it, they are not sufficient to justify it relevance, nor are they sufficient to justify the exclusion of the evidence as an exercise of discretion. I am persuaded that the evidence has more than slight probative value, particularly given the similarity between the stated means of causing bankruptcy and the means by which the strawberries were contaminated, although clear directions will be required to bring the issues affecting the weight that may properly be given to the evidence to the jury’s attention.
51. [51]
    In the circumstances I consider the evidence to be admissible and I decline to exercise my discretion to exclude the evidence.

The application to exclude the evidence of an interaction with Yong Yah Tan

52. [52]
    At the conclusion of the oral hearing on 23 June 2021 I ruled that this evidence was not to be adduced. What follows are my reasons for that ruling.
53. [53]
    The prosecution contends that this incident evidences a deterioration in the business relationship between Ngoc Tran and the defendant,^[40] although it must be said that the submission was not vigorously pursued.
54. [54]
    The difficulty with the submission is that at face value the incident evidences animosity towards the other supervisor, not Ngoc Tran. While it is true that the defendant is supposed to have said that she didn’t care about Ngoc Tran, the clash commenced before his name was mentioned and, it appears to me, the prosecution cannot exclude the reasonable possibility that she was simply being dismissive of him being used to justify the other supervisor’s conduct. There is no other evidence in admissible form to suggest her anger was in fact directed at Ngoc Tran.
55. [55]
    In my opinion the evidence fails to reaches the threshold of relevance, and hence is inadmissible. If however I am wrong about that, I would have excluded it as an exercise of discretion. If admitted it raises a real risk of the jury viewing her as an irrationally violent person at or about the time the offending occurred. Taken at its highest, the link to Ngoc Tran is slender at best and so the evidence is of slight probative value, but it carries considerable prejudice for the reasons outline above. It would have been excluded as an exercise of that discretion.

The application to exclude the DNA evidence

56. [56]
    The parties are agreed that the prosecution contention that the DNA is in fact the defendant’s and that it was deposited on the needle by way of primary transfer is an indispensable step towards reasoning to guilt. The jury are entitled to consider whether the prosecution have established the proof of that assertion beyond reasonable doubt in light of all other evidence it accepts.
57. [57]
    I accept that the prosecution cannot negate the possibility of secondary transfer of the DNA onto the subject needle, but it appears to me that there are reasons why the jury can consider that is not a reasonable possibility bearing in mind that proof beyond reasonable doubt is not necessarily the same thing as scientific certainty.^[41]
58. [58]
    First, those pickers and packers who are called to testify will, presumably, be asked if they inserted any needles into any strawberries. Assuming they each deny it, the jury may consider that, in conjunction with other evidence, makes it more likely that it was the defendant who did. That is the case even though not all such personnel will be called to testify.
59. [59]
    Second, there is some evidence of motive, albeit of slight weight if considered alone, which the jury can accept makes it more likely that the defendant acted with malice towards Ngoc Tran.
60. [60]
    Thirdly, there is the evidence of the comment made one or two years earlier to Jame Tran which again the jury can consider makes it more likely that the defendant inserted one or more pins into the strawberries.
61. [61]
    Fourthly, the jury may consider that the scenarios do not raise a reasonable possibility of secondary transfer of the DNA.
62. [62]
    For example, the jury may properly consider that, on some scenarios, the possibility of strawberries being in contact with each other resulting in a transfer of DNA from one to the other, on possibly more than one occasion, and eventually onto one needle in the clip seal bag in which they were sent to the laboratory is not a reasonable possibility. Further, they may consider that the overlying possibility of multiple people handling the strawberries and/or trays before the needles were inserted by another person who transferred the DNA onto the needle in the process makes those scenarios not reasonable.
63. [63]
    Similarly, the jury might properly conclude on some scenarios that the presence of the DNA on one needle but not the other of the two secreted in the strawberry means that secondary transfer to the first is unlikely or not a reasonable explanation.
64. [64]
    The scenarios stand in contrast to Fitzgerald v The Queen^[42] where the possibility of secondary transfer was based on the relatively straightforward possible transmission of DNA by way of handshake of another who later may have handled the subject item. In any event Fitzgerald was concerned with the reasonableness of the verdict, not the admissibility of the evidence.
65. [65]
    It seems to me that these are all properly jury questions. It is not my function to assess the reasonableness nor likelihood of any verdict of guilty.
66. [66]
    Although the applicant submits that there is a danger that the jury will be overwhelmed by the bare statistical evidence and conclude that primary transfer has occurred without giving consideration to the possibility of secondary transfer, that cannot be accepted. The possibility of secondary transfer is raised by the same expert witness whose opinion gives the statistical probability evidence about which the complaint is made. It is unlikely that the jury would be overwhelmed by one part of that witness’ testimony without having regard to other parts of it. This is not a case where different witnesses give different parts of the overall body of opinion evidence, and hence where credit may be assessed differently in respect of the different witnesses.
67. [67]
    In my view, there is no real risk of any prejudice attaching to a supposed “CSI effect”^[43] of the statistical evidence thereby raising issues of relevant prejudice. Any possibility of that can be catered for by appropriate directions, if considered necessary in light of the conduct of the trial.
68. [68]
    The DNA evidence is potentially highly probative of guilt, but it is a matter for the jury whether they consider it to have that high probative value. For the purposes of this application I must assume that the jury will accept the evidence. On that basis the so called Christie discretion does not arise for consideration as the evidence is not of slight probative value. In any event, the prejudicial value of the evidence arises from its probative force, and so the discretion also is not exercisable for that reason. The applicant has not sought the exclusion of the evidence on any other basis of the fairness discretion.^[44]
69. [69]
    I decline to exercise my discretion to exclude the evidence the subject of the first application.

Conclusions

70. [70]
    I decline to exercise my discretion to exclude the evidence the subject of the first two applications, and that evidence is otherwise admissible. The third application must succeed.

Orders

71. [71]
    I make the following orders:

1. The application to exclude the DNA evidence is dismissed.
2. The application to exclude evidence of a particular conversation between Jame Tran and the defendant, detailed in paragraphs 14 to 17 or Mr Tran’s statement signed 14 September 2018 is dismissed.
3. The application to exclude evidence from any witness of an interaction said to have occurred between Yong Yan Tran and the defendant, and detailed in Yong Yan Tran’s statement dated 4 January 2019 at paragraphs 25 to 30 is allowed.