R v ARF[2022] QDCPR 26

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant (defendant) applies to the District Court for the following:

1. A ruling pursuant to s 590AA (2)(e) of the Criminal Code that the coronal sulcus (dry) and the glands penis (wet) swabs from the sexual assault investigation kit – JC2 in the name of the defendant be excluded from the trial of the defendant.
2. A ruling pursuant to s 590AA (2)(e) of the Criminal Code that casework DNA sample ‘1094204744 fabric: Item H2 – Underpants (rear)’ be excluded from the trial of the defendant.

Background

2. [2]
   The defendant is charged with two counts of rape alleged to have occurred on 2 February 2020, in the early hours of the morning at an apartment in Labrador, Queensland.  The complainant, a 21-year-old female and the defendant, a 21-year-old male, both normally resided in Sydney. They had met each other on one previous occasion through the complainant’s then partner, N. They independently travelled to the Gold Coast to socialise with N and mutual friends G and P who had rented an apartment at Labrador (‘the apartment’) for the occasion. On 1 February 2020, the complainant was collected by her partner N from Coolangatta airport. They returned to N’s apartment and had vaginal sexual intercourse. N did not wear a condom and ejaculated into her vagina. The complainant did not shower. She dressed herself in a pair of underpants and a dress. She and N went to the apartment. Already there were the defendant, G and P. All remained at the apartment socialising for the evening.
3. [3]
   The complainant, in her police statement, provided the following relevant information. The complainant wore the same underwear and dress from the time directly after she had intercourse with N until they were taken from her by Gold Coast University Hospital staff, after the alleged rapes had occurred. The complainant and N drove to the apartment. As well as alcohol, the complainant carried her bag into the apartment. The bag contained her property and some of N’s clothes. The complainant used the loungeroom, kitchen and bathroom throughout the evening. She entered G’s and P’s room once to use some deodorant. She did not go into the other bedroom. When the complainant arrived, she gave G and the defendant a very short hug. Everybody started drinking. They watched tennis for a while then moved on to playing drinking games and chatting. They also played the card game Uno for some time. All the occupants were drinking. During the evening the complainant sat with N in close contact, holding hands, flirting and being affectionate. Another male, K, arrived at approximately 10.45pm. At some point everyone moved from the table to the couches. G set up a sofa bed for N and the complainant to sleep on. G and P went to bed. The complainant and N argued and spent some time in the bathroom talking before both becoming upset. The complainant remained in the bathroom and could hear K and the defendant trying to calm N down. N and K then left the apartment to go for a walk.
4. [4]
   When the complainant returned to the loungeroom the defendant was lying on the sofa bed reading a book fully clothed. They spoke together about her relationship with N. At one point the complainant took the defendant’s room key and went to a nearby service station to buy Nurofen. When she returned at about 2.39am, she eventually lay down on the opposite side of the sofa bed making sure there was plenty of distance between her and the defendant. She lay on her stomach vertical to the bed. At one point the defendant leaned over towards her and his body brushed against hers. The complainant felt uncomfortable and moved towards the edge of the bed, before falling asleep.
5. [5]
   The complainant awoke feeling someone on top of her. She was still lying on her stomach. She felt a hand pushing down on her back and could feel the defendant trying to penetrate her vagina with what felt like his penis. She felt the tip of his penis forcefully impacting her vagina and could feel the defendant pulling her underwear to the side to expose her vagina. She remembered him pulling her underwear down so that it was around her legs. He then continued to try and force his penis into her vagina. She remembered feeling him use his fingers to fondle and probe around her vagina. At one point she felt him thrusting around her vaginal and anal area. She felt him pushing the head of his penis into her anus at which point she told him to stop. She felt the defendant use both hands to forcefully push down on her arms. She recalls him thrusting and penetrating her anus with his penis. The complainant remembers him using his hands to fondle and massage her breasts at one point. She struggled and, as soon as she was free, stood up and pulled her underwear up. The complainant saw the defendant naked on the bed, sprawled out with his hands around his penis.
6. [6]
   The complainant went into the bathroom. She urinated and wiped herself with toilet paper. It is unclear from her statement where she wiped, however she saw the paper had blood on it. She left the apartment soon after. Just before she left the defendant said something like: ‘oh, uh, what was the last 20 minutes?’ and ‘what just happened?’ The complainant called 000 at 3.27am and was taken to hospital by ambulance.
7. [7]
   I have not been supplied with statements of the other witnesses at the apartment for the purposes of the application.

Medical evidence

8. [8]
   I was not provided with a statement from Dr Van Burren who examined the complainant at 7am on 2 February 2020, however, the defendant’s outline of submissions summarises her evidence. The summary, accepted as accurate by the Crown, is as follows. Dr Van Burren observed three lacerations on the anal verge or edge of the anus, swelling to the anal verge and some bleeding. She observed no other injuries, genital, or non-genital. Dr Van Burren examined the defendant later that day and found no relevant injury. Dr Van Burren took forensic samples from the complainant and the defendant. The swabs were taken from the complainant’s breasts and various locations on the complainant’s and defendant’s genital areas. These are summarised in the defendant’s outline of submissions.^[1]
9. [9]
   Dr Van Burren also took tape lifts from items of clothing worn by the complainant and the defendant.^[2] Tape lifts were taken from the defendant’s underpants (D1-D3) including inside the waistband and inside the front crotch area. Tape lifts were taken from various locations on the complainant’s dress (J1-J9) and underpants including the front of her underpants (H1) and rear of her underpants (H2). DNA reference samples were then taken by police from the complainant, the defendant and N.

Forensic evidence

10. [10]
    Mr Rhys Parry, scientist at the Forensic DNA Analysis Laboratory of Queensland Forensic and Scientific Services, received and examined all forensic specimens and conducted scientific examinations with comparison to the reference samples provided. The following are results relevant to this application as summarised in the defendant’s outline of submissions.

Forensic samples from the complainant

11. [11]
    The defendant either “did not contribute” or was “excluded from contribution” in relation to all forensic samples taken from the complainant but for the left breast (wet sample) where the results were inconclusive noting that “the mixed DNA profile obtained was equally likely to have occurred if he had contributed DNA compared to if he had not.”^[3]

Forensic samples from the defendant

12. [12]
    Many of the fractions sampled for assessment contained insufficient DNA to be suitable for analysis, relevant to this application. DNA was unsuitable for analysis or DNA was not detected, and no further testing was conducted. Results were obtained with respect to the coronal sulcus (dry) (epithelial fraction) and the glans penis (wet) (epithelial fraction). Mr Parry reported as follows.

Coronal Sulcus (dry) (epithelial fraction)

13. [13]
    The mixed DNA profile from this fraction indicated the presence of DNA from three contributors.

The defendant: The defendant’s DNA was not unexpected as he was the source of the fraction, so it was assumed for statistical purposes that he was one of the contributors.

N: The mixed DNA profile obtained is greater than 100 billion times more likely to have occurred if he did contribute DNA rather than if he did not.

The complainant: The mixed DNA profile obtained is approximately 850 times more likely to have occurred if she did contribute DNA rather than if she did not.^[4]

Glans penis (wet) (epithelial fraction)

14. [14]
    The mixed DNA profile contained from this fraction contained DNA from three contributors.

The defendant: The defendant was assumed to have contributed due to being the source of the sample.

N: The mixed DNA profile obtained is greater than one hundred million times more likely to have occurred if he did contribute rather than if he did not.

The complainant: The mixed DNA profile obtained was approximately twenty-two thousand times more likely to have occurred if she did not contribute DNA rather than if she did.

Tape lifts from clothing

The defendant’s clothing

15. [15]
    Spermatozoa and epithelial fractions obtained from the defendant’s clothing indicated the presence of his own DNA.  Epithelial fractions obtained from the inside front crotch area favoured non-contribution from the mixed profile of both N and the complainant.^[5]

The complainant’s clothing

Dress

16. [16]
    N and the Complainant: DNA analysis of the complainant’s dress confirmed her contribution and N’s contribution at a likelihood exceeding one hundred billion within the spermatozoa fraction and also the epithelial fraction.

The defendant: The defendant’s DNA profile was excluded from all spermatozoa fractions analysed. The defendant was either excluded from contribution or the results favoured non-contribution within the epithelial fractions. The epithelial fractions located upon the dress confirmed N’s likelihood of contribution exceeding one hundred billion. 

17. [17]
    The defendant submits that the results from the complainant’s dress are not surprising due to N and the complainant having sexual intercourse earlier that evening where he ejaculated within her vagina. There is another explanation alternative to the defendant’s submission. (The presence of N’s DNA on the dress could also be consistent with the defendant having intercourse with the complainant and, in doing so, transferring some quantity of N’s sperm to the dress in the course of the alleged rapes occurring. For example, the defendant’s penis could have made contact with the complainant’s dress, transferring N’s sperm, without leaving any DNA (epithelial fraction). The complainant did not put on her dress until after she had sexual intercourse with N).

Rear of complainant’s underwear

Epithelial fraction

18. [18]
    The sample taken from the rear of the complainant’s underwear (H2), nominated as side A epithelial fraction, returned a definitive mixed DNA profile with respect to the defendant.
19. [19]
    The epithelial fraction indicated the presence of DNA from three contributors with the complainant assumed to be one of those contributors. 

N: The mixed DNA profile obtained is greater than one hundred billion times more likely to have occurred if he did contribute DNA rather than if he did not.

The defendant: The mixed DNA profile obtained is greater than one hundred billion times more likely to have occurred if he did contribute DNA rather than if he did not.

Mr Parry’s evidence at committal

20. [20]
    The defendant relies on parts of Mr Parry’s evidence at committal to support the application.^[6]

21. [21]
    Mr Parry agreed there was no way of determining whether the mixed DNA profiles obtained were the result of two or more separate events (i.e., secondary or tertiary transfer of DNA) or a single event resulting in the transfer of DNA.^[7] 
22. [22]
    Under cross-examination, when referring to the complainant’s possible contribution to DNA located on the defendant’s coronal sulcus, he agreed the statistical analysis obtained indicating the presence of a mixed DNA profile in favour of contribution from the complainant of approximately “850 times more likely to have occurred if she did contribute DNA rather than if she did not” was “reasonably weak support”.^[8][9]
23. [23]
    He agreed that secondary transfer of the complainant’s mixed DNA profile could not be excluded as a mechanism, with direct transfer of DNA passing from N to the defendant by N touching the complainant on a previous occasion.^[10]  He agreed a further mechanism could have been an additional medium such as a hand-towel in the bathroom, a shared glass, communal wooden table or surface that was the conduit for the ongoing transfer of the DNA profiles of both N and the complainant to the coronal sulcus of the defendant’s penis.^[11] 

24. [24]
    Under cross-examination, Mr Parry agreed that there was no way to exclude, secondary or other transfer of the defendant’s DNA profile located on the complainant’s underpants.

Expert report of Miss Gerhard

25. [25]
    The defendant’s material includes a report from Miss Gerhard, an expert in DNA analysis and interpretation.  In the written outline of submissions, the defendant summarised the findings of Miss Gerhard as follows.
26. [26]
    Miss Gerhard defines trace DNA as ‘DNA from which it is not possible to identify the types of cells that the DNA originates’^[12]  She notes in her report that, with the sensitivity of modern forensic DNA testing, it is not possible to assume that any trace DNA profiles are the result of recent direct contact.^[13]  
27. [27]
    Trace DNA is, by definition, DNA material the source of which is uncertain. In my view, the use of the terminology by the scientists is inadmissible opinion evidence tending to prove one of the issues for determination by the jury, on the whole of the evidence. Put another way, it is a matter for the jury to determine if they can decide how the DNA got onto the coronal sulcus and the complainant’s underpants, not for an expert scientist to determine.
28. [28]
    Miss Gerhard states that experimental data has shown neither the quantity of DNA recovered, nor the quality of DNA profile obtained, can be reliably used to determine the nature of deposition, i.e., primary or secondary transfer.  This is due to transfer, persistence, and recovery of trace DNA from persons and/or objects being a highly complex and multi-factorial process.  The major contributor to a DNA profile does not necessarily relate to the last person to contact the item nor indicates that they have had direct contact with an item.^[14]
29. [29]
    Miss Gerhard notes that there was no testing for sperm conducted on the swabs collected from the defendant. In relation to the coronal sulcus swabs (wet and dry), differential DNA extractions were conducted on the samples.^[15]  In keeping with the results obtained there were “strong scientific support for the proposition that N  contributed DNA to the mixed DNA profile obtained from the coronal sulcus - dry epithelial fraction” of the defendant. This DNA cannot be attributed to spermatozoa, as it was located only in the epithelial DNA fractions. It is therefore considered to be trace DNA.^[16]
30. [30]
    Miss Gerhard opines

“It is not possible to evaluate whether the DNA detected matching N is the result of transfer from the vagina of the complainant or some other form of DNA transfer due to N and the defendant sharing an apartment and being in social contact.”^[17]

31. [31]
    Miss Gerhard considered there to be “moderate support”^[18] for the proposition that the complainant contributed DNA to the mixed DNA profile obtained from the corona sulcus (dry epithelial fraction) and confirmed the DNA is considered to be trace DNA.  She opined:

“It is not possible to evaluate whether the DNA detected that matches the complainant is the result of sexual intercourse with the complainant or some other form of DNA transfer due to complainant and the defendant sharing an apartment and being in social contact.”^[19]

32. [32]
    She noted extremely strong scientific support for the proposition that N contributed DNA to the mixed DNA profile obtained from the glans penis (wet swab) epithelial fraction; also considered to be trace DNA.  Again, it was:

“not possible to evaluate whether the DNA detected that matched N was the result of transfer from the vagina of the complainant or some other form of DNA transfer due to N and the defendant sharing an apartment and being in social contact.”^[20]

Defendant’s submissions

33. [33]
    The defendant submits that the evidence, relating to the DNA located upon the coronal sulcus and glans penis of the defendant and the DNA lifted from the rear of the complainant’s underpants, should be excluded.  The defendant anticipates the Crown will rely on the DNA of the coronal sulcus to demonstrate primary transfer of the complainant’s DNA to the defendant’s penis during the alleged sexual assault and in doing so, via secondary transfer, the mixed DNA profile of N.
34. [34]
    The defendant anticipates the prosecution will rely on the DNA of the defendant on the complainant’s underpants as relevant to demonstrate primary transfer consistent with the nature of the assault described by the complainant.
35. [35]
    The defendant submits there are significant difficulties with this reasoning.  Firstly, the DNA profile favouring contribution from N upon the coronal sulcus was an epithelial not a spermatozoa fraction.  The defendant submits, based on the expert evidence, there is no way to distinguish between primary, secondary or tertiary transfer.  The defendant relies on the same argument in relation to the DNA profile favouring contribution from the complainant and submits it is not possible, based on the expert evidence, to evaluate whether the DNA obtained from defendant’s coronal sulcus is the result of direct “skin to penis” contact via sexual intercourse or some other form of DNA transfer due to the nature of the shared apartment and social contact that occurred throughout the evening.  Second, the defendant submits the nature of the profile with respect to the complainant, in the expert opinion of Dr Parry, was described as “not particularly good”, and “reasonably weak support” and therein “the ambivalent end of the spectrum”.

36. [36]
    The defendant submits there is no way to determine whether the DNA profile located on the glans penis of the defendant, strongly in favour of being N’s, was the result of the defendant placing his penis into the vagina of the complainant being a direct transfer or secondary/tertiary transfer as a result of the shared apartment and ongoing social contact that evening.  Additionally, the defendant submitted that a further evidentiary issue arises in attributing the transfer of N’s DNA by secondary transfer, between the complainant’s vagina to the glans penis of the defendant, as the specimen was an epithelial fraction.  The defendant submits the likelihood of such a strong, in favour contribution, representing a primary transfer of DNA, considering the vaginal environment is unlikely.
37. [37]
    The defendant submits the same reasoning is applicable with respect to the presence of the defendant’s DNA profile upon the rear of the complainant’s underpants.  The defendant relies on Mr Parry’s evidence that “there is no way to be able to determine one way or another” whether this indicates primary transfer, secondary transfer via N or in fact tertiary transfer.

38. [38]
    In summary, the defendant submitted that the DNA evidence sought to be excluded lacks probative value as it is not possible to scientifically evaluate, let alone choose between, the relevant mode of transfer.  It is submitted that its probative value is further diminished due to the nature of interaction between all parties at the apartment on the evening, the sharing of common areas, drinking receptacles and other items.  The defendant submits the factual scenario differs from a situation where there is no plausible reason for a defendant’s DNA to be present at a location but for the involvement in a relevant offence.  Finally, the defendant submits that absence of probative value means the evidence is irrelevant and inadmissible.  Alternatively, if the court was to find there was some limited probative value to the DNA evidence sought to be excluded, it is so minimal that the risk of prejudice to the defendant outweighs its probative value.  Due to the equivocal nature of the DNA evidence, a judicial warning or direction would not cure the prejudicial effect of admitting the DNA analysis into evidence. 
39. [39]
    The defendant submits the relatively slight probative value, if any exists, is massively outweighed by the prejudicial effect of the admission of the evidence when the New South Wales case of Dadley v R (2021) NSWCCA 267 (‘Dadley’) is considered, and in which reference is made to the case of Director of Public Prosecutions v Wise^[21] (‘Wise’) acknowledging the real risk of “the CSI effect” whereby juries place disproportionate weight upon scientific evidence before them in a criminal trial.
40. [40]
    For the above reasons, the defendant submits that under common law, or pursuant to s 130 of the Evidence Act 1977 (Qld), it would be unfair to admit the DNA evidence, in light of the expert evidence, and for those reasons submits that the evidence subject of the application should be excluded.

Crown submissions

41. [41]
    The Crown opposes the application for exclusion.  It submits the DNA evidence is probative of a fact in issue namely, whether any sexual intercourse occurred between the complainant and the defendant.  The Crown submits that transference of DNA is a common issue in jury trials in Queensland.
42. [42]
    The prosecution submits, although the Crown cannot negate the possibility of secondary transfer, there are reasons why the jury could consider that is not a reasonable possibility in the circumstances of this case, including:

• A jury may determine that the evidence does not raise the reasonable possibility of secondary of DNA;
• The presence of DNA in two separate locations might mean that secondary transfer is not a plausible or reasonable explanation;
• The locations where the DNA was found are intimate areas which would ordinarily be covered by clothing.  Therefore, accidental secondary or other transference could be considered as far less likely to those locations than primary transference;
• DNA consistent with N is also found on such an intimate area of the defendant which further suggests secondary and beyond transference is unlikely, where there is evidence that the complainant and N had had intercourse earlier that evening.

43. [43]
    The Crown submits the evidence is potentially highly probative of guilt if the jury was to determine that primary transference was the explanation for the results.  The Crown submits this is a jury matter and that the probative value of the DNA supports, or at the very least, is consistent with the complainant’s accounts of events.
44. [44]
    In relation to the concept of transference, the Crown submits the concept of secondary and other transference of DNA is not foreign.  It is not uncommon for a DNA expert to be unable to rule out the possibility of secondary transference.^[22]  The mere fact there is a possibility of transference, which provides an alternative explanation inconsistent with guilt, is not of itself a sufficient ground to exclude DNA which is an accepted form of scientific evidence.
45. [45]
    The Crown submits juries are well-equipped with the issue of transference and that, in the present case, there are explanations relating to the DNA evidence consistent with the complainant’s version of what occurred.   
46. [46]
    The prosecution submits the following factual matters are relevant:

• There was little physical contact between the complainant and defendant prior to the alleged rapes;
• The use of things like a toilet or handtowel at the apartment is a possibility but supports nothing more conclusive;

47. [47]
    The prosecution submits the cases referred to by the defendant where DNA was or might have been excluded because it was too prejudicial, were cases where secondary transference was more than a mere possibility.
48. [48]
    The prosecution submits that to exclude only those items sought by the defence would lead to a distortion of the evidence. (During the oral submissions at the hearing, the defendant effectively conceded this submission to be correct and submitted that if the evidence subject of this application was to be excluded, then all the DNA evidence should, in fairness, be excluded).
49. [49]
    The prosecution submits there is no real risk of any prejudice attaching to a supposed “CSI effect” in circumstances where the expert will give evidence about the statistical significance of the results and evidence of possibility of transference.  Any possibility of prejudice could be cured by suitable directions to the jury.

Legal Issues

50. [50]
    It was clarified by the defendant during oral submissions that one of the issues in the trial is proof of the relevant conduct, as opposed to consent, or consent under s 24 of the Criminal Code.
51. [51]
    The DNA evidence is circumstantial evidence intended to be led to support the complainant’s direct evidence of what occurred. As such it need not be capable of proof to any particular standard.^[23]
52. [52]
    Weakness of relevant evidence is not a ground for its exclusion unless the probative value of evidence is outweighed by its prejudicial effect in the sense that a jury is likely to give the evidence more weight than it deserves, or when the nature of the content of the evidence may inflame the jury or divert jurors from their task.^[24]
53. [53]
    In a case where the evidence is truly ambiguous and is arguably irrelevant, the onus is on the prosecution to prove the evidence is relevant and therefore admissible. Where the issue is whether the evidence should be excluded under s 130 of the Evidence Act, or under the common law on the ground the evidence has such slight probative value, which is outweighed by its prejudicial effect, the onus is on the defendant to satisfy the court that it should be excluded.

Consideration

Limitations on Expert Evidence

54. [54]
    Mr Parry was not provided with any relevant information or statements of Crown witnesses when he prepared his report and addendum report. He was not aware of the complainant’s description of the events that occurred that evening prior to, or at the apartment, including the circumstances of the alleged offending.
55. [55]
    His evidence at the committal is restricted to his opinion absent from other relevant facts of what witnesses stated had occurred in the apartment. For example, a scenario was put to him under cross-examination regarding whether it was possible for the complainant’s DNA to have been found on the defendant’s penis (coronal sulcus swab) via secondary or tertiary transfer if N had touched the complainant with his hand, then shared hands with the defendant, followed by the defendant then visiting the bathroom and touching his own penis. This scenario is not based on information in the complainant’s statement. It is merely hypothetical. Mr Parry had no information from other witnesses of the opportunity, or lack thereof, for DNA to be transferred via secondary as opposed to primary transfer to the defendant’s penis via primary contact of the defendant’s penis with the complainant after the complainant had sexual intercourse with N. Mr Parry’s opinion was not based on any factual scenario described by the complainant, rather on a scientific conclusion in a vacuum of facts surrounding the incident^[25].
56. [56]
    It may well be that evidence emerges at trial that may present innocent explanations for the transfer of the complainant’s DNA to the defendant’s penis, but that is mere speculation at this stage, and a matter for the jury.
57. [57]
    Similarly, when referred to the DNA results located on the back of the complainant’s underpants (H2) Mr Parry’s opinion that there was no way to determine one way or another whether the defendant’s DNA could be present via way of secondary transfer from N in answer to a question framed: “from what you’re saying before, there’s no way to exclude on those figures that the DNA of (the defendant) could be via way of secondary transfer from N is there?” There was no scenario presented to Mr Parry based on the complainant’s or other witnesses’ statements. 

58. [58]
    Ms Gerhard states that, for the purposes of her report, she was briefed with scientific and medical material, a draft statement of facts and the complainant’s statement and addendum statement. She was not briefed with other witness statements. Ms Gerhard states at [5.2] of her report that although she was supplied with other information (unknown), it was not relied upon for the purposes of this report. Ms Gerhard notes that her opinions are based solely on the information provided. Her findings were therefore based on this limited information and/or general scientific theoretical possibilities as to how the relevant DNA might have been transferred.
59. [59]
    Although it was not referred to by the defendant in the written or oral submissions, I note that Ms Gerhard states at [4] of her report that “it has been requested that this report be limited to the DNA results relating to the coronal sulcus (dry) swab and glans penis (wet) swab only” (my underlining). Her report for some reason does not relate to the DNA results relating to the tape lift from the complainant’s underpants, (which is the strong DNA profile linked to the defendant). Her statement therefore does not assist the defendant’s argument in relation to the admissibility or probative value of the DNA evidence in relation to the complainant’s underpants.
60. [60]
    I do not need to consider Ms Gerhard’s opinion in relation to the glans penis swab for the purposes of this application. The defence and prosecution agree the issue of admission of those findings will be dependent on the admission or exclusion of the DNA evidence in relation to the coronal sulcus and underpants.

Interstate cases

61. [61]
    An example of admissible and probative evidence which is often led at trials of alleged sexual assault or rape, by the prosecution, is medical evidence that a red mark or laceration on or near a female’s genitals is consistent with the crown case of non-consensual digital or penile penetration. Medical witnesses will often agree that there is a possibility of alternative innocent explanations as to how the redness or injury was caused. For example, the injury could have been caused by a complainant scratching or rubbing themselves, or her clothes rubbing against the relevant area. The evidence is admissible, and it will be for a jury to consider what weight if any should be attributed to the evidence on the crown case in light of other evidence it accepts or rejects.
62. [62]
    The defendant submits such a scenario should be distinguished from DNA transfer evidence in the present case because evidence of the origins of a red mark or a bruise, for example, even if assisted by expert evidence, is well and truly within the intuitive capacity or experiential capacity of a jury to deal with. The defence submits principles that arise in interstate appellate court decisions as to the dangers of the “CSI effect” on juries of DNA evidence apply here and a judicial warning or direction would not cure the prejudicial effect of admitting DNA analysis into evidence in the present case “due to the equivocal nature of the DNA evidence” and the comments in the Victorian case of DPP v Wise^[26] (‘Wise’) which are set out below.
63. [63]
    As the defence properly concedes, each of the interstate cases turns on their own facts. I consider each of those cases is distinguishable from the present case. They involve factual scenarios where the DNA evidence was unsupported by the prosecution evidence or irrelevant to a determination of relevant issues.
64. [64]
    The case of R v GZ^[27] concerned a pre-trial ruling by a trial Judge.  The accused was charged with two counts of sexual intercourse with a child under 10 years.  It was alleged the accused licked the complainant’s genital area.  DNA was located on the interior of the complainant’s underwear.  The DNA was alleged, by the prosecution, to have originated from the accused’s saliva by secondary transference. The complainant had spent time with the accused at his house on the day in question.  Of particular significance, there was no dispute that there was ongoing innocent physical contact between the complainant and the accused. There was evidence that the accused’s DNA may be expected to be found on the clothes that the complainant wore that day.  When the complainant returned home that evening, she took off her clothes including a pair of tights which she had worn as her outer clothing, and her underwear.  She left them intertwined overnight on her bedroom floor. The next day the complainant’s mother placed the tights and underwear in a paper bag.  This raised the possibility of contamination of the underwear with the DNA from the outer clothing worn by the complainant. 
65. [65]
    The prosecution did not dispute the possibility that the DNA later located on the inside of the complainant’s underwear could have been transferred from the complainant’s outer clothing while the tights and the underwear were left intertwined on the bedroom floor overnight or when they were placed together in the lunch bag.  There was no DNA evidence as to which possible mechanism by which the DNA could have come to be on the complainant’s underwear was more likely.  That is, either by way of secondary transference from the applicant, saliva on the complainant’s vagina or by her clothes being intertwined. 
66. [66]
    Burns J ruled that because the prosecution did not dispute the possibility that the DNA evidence came to be on the complainant’s underwear, through contamination with her other clothing, there was a real risk the jury would give the evidence more weight than it was due.  The judge excluded the evidence pursuant to s 137 of the Evidence Act 2011 (ACT).
67. [67]
    In this case, there was evidence, and it was accepted by the prosecution, that there had been significant physical contact during the time prior to and after the alleged offending, such that it was expected that the defendant’s DNA would be found on the complainant and her clothing. That evidence, combined with the evidence that the complainant bundled her outer clothes with her underwear, raised a real possibility on the facts of that case that the defendant’s DNA had transferred from her outer clothes to her underwear.
68. [68]
    The case of DPP v Paulino^[28] (‘Paulino’) concerned an interlocutory appeal to the Victorian Supreme Court of Appeal by the Director of Public Prosecutions. The trial Judge held that evidence of the deceased’s DNA was located on three items of the defendants clothing and on the rear driver side of his car was irrelevant and therefore inadmissible. In the alternative, he concluded that the evidence should be excluded pursuant to s 137 of the Evidence Act 2008 (Vic). The Court of Appeal upheld his decision, dismissing the appeal.
69. [69]
    The deceased was the defendant’s wife. She suffered multiple stab wounds from which she died. The prosecution case against the defendant was wholly circumstantial. The central fact in issue was whether the defendant was the person who killed the deceased. DNA evidence that matched the deceased was located on a pair of shoes, a shirt and a jacket belonging to the defendant, and inside his motor vehicle on a side panel in the back seat.
70. [70]
    At the time she was killed, the deceased was separated from the defendant. An autopsy revealed she had suffered multiple stab wounds to her chest, abdomen and back caused by a knife. There was also blunt force trauma to her head and face. There was blood around the deceased and some bloody shoe prints. When spoken to by police some hours after her death, the defendant claimed he had not seen the deceased for two to three months. The defendant’s son said that four weeks prior to his mother’s death he had borrowed his father’s car and thoroughly cleaned and detailed it.
71. [71]
    The defence objected to the DNA evidence on the grounds the source of it was weak, there were many ways unconnected with the killing by which the DNA may have been deposited onto the items and the jury could not, without the danger of unfair prejudice, find the DNA was deposited around the time of the killing.
72. [72]
    The trial Judge held the prosecution would have to establish a rational basis on which the jury could find without engaging in conjecture that the DNA on the relative items was connected with the killing. There was undisputed expert evidence before the Judge that secondary transfer could not be excluded. The trial Judge held a jury would have no reasonable basis for determining whether the DNA of the defendant on the four items was connected with the killing.
73. [73]
    On the facts of that case there was ample opportunity for the deceased’s DNA to be located on the relevant items. The deceased visited the defendant’s house on numerous occasions to clean. She had sat in the back seat of the car on occasions.  Significantly, no blood was found on the boots, the shirt or the jacket. None of the DNA was from blood, which was inconsistent with evidence she had been stabbed and bludgeoned to death. The defendant’s and deceased’s son’s DNA were also located on the jacket and there was no suggestion he was present at the killing. There was ample opportunity for the deceased’s DNA to be transferred onto the jacket or shirt from previous contact.
74. [74]
    Paulino can be distinguished from the present case due to the specific factual circumstances present in that case. There was no independent evidence that any of those items had the deceased’s DNA deposited on them at the time of or after the killing. The DNA was located in places it may be expected to be found. The absence of blood supports the scenario of innocent transfer of DNA. There were innocent explanations raised by the actual evidence, not merely theoretical possibilities such as those raised on the present application.
75. [75]
    The case can also be distinguished from the present case because the timing of the deposits of the deceased’s DNA could not be ascertained, whereas here the DNA must have been deposited during the limited time the complainant and the defendant were at the apartment that night.
76. [76]
    In Wise, the Victorian Supreme Court of Appeal considered an interlocutory appeal. The court upheld a trial Judge’s decision to exclude certain DNA evidence as inadmissible.
77. [77]
    The defendant was charged with penile oral rape of a male complainant, MA.  They were both guests at a barbecue during the evening.  MA’s girlfriend had sex with MA’s brother.  When he discovered this, he became violent and had to be physically restrained by at least three men including the defendant, LR and OJ.  The men had to sit on MA’s back to stop him attacking his brother.  Eventually MA was put to bed in the spare bedroom.  He alleged he woke up to the defendant performing fellatio on him.  He fell asleep and when he later awoke, he noticed his underpants and tracksuit bottoms were pulled down, his singlet and t-shirt were off and there was semen around his genital area.  He later showed LR a black t-shirt which appeared to have semen on it.  Later he visited his girlfriend upset and crying and told her what the defendant had done.  He subsequently complained.  Police seized items of MA’s clothing including the underpants he had been wearing.  The underpants were subjected to forensic analysis.  DNA was located from three contributors – MA, the defendant and the complainant’s girlfriend.  No testing for semen on the underpants took place.
78. [78]
    The Court of Appeal agreed that the transference of DNA must be considered having regard to evidence of the amount of activity over many hours the three contributors spent together at the barbecue which included an amount of drinking and no doubt food utensils and other objects being passed around a relatively small group of people.  In addition, a significant relevant fact was the very forceful struggle involving three men including the respondent being required to hold MA down must necessarily have involved a high degree of likely transference of DNA.

79. [79]
    That case can be distinguished from the present case because the prosecution made no attempt to adequately explain how the complainant’s girlfriend’s DNA could have been deposited in his underpants in an innocent fashion whilst at the same time being capable of rationally asserting that the respondent’s DNA in the same mixture bespeaks guilt. There was no evidence the complainant and his girlfriend had intimate contact that evening. In fact, she had intimate contact with his brother. There was no suggestion of any sexual or other relevant activity to explain location of the complainant’s girlfriend’s DNA.  The facts of that case were relevant to the court’s findings that the only available inference on the crown case was that the complainant’s girlfriend’s DNA must have been deposited in his underpants in a manner unrelated to sexual activity, hence the same reasoning would apply to the defendant’s DNA. It was against the factual background of Wise’s case that the Court made comments now relied upon by the defendant as statements of principle in relation to trace DNA evidence.

80. [80]
    In the present case, the prosecution has proffered a rational explanation of how N’s DNA combined with the complainant’s would end up on the defendant’s penis if he vaginally raped her.  There is evidence from the complainant to account for how her and N’s DNA was found on the defendant’s penis and how the defendant’s DNA was found on her underpants.
81. [81]
    The court in that case referred to as the dangers associated with DNA evidence, in what has come to be known as the “CSI effect” in cases where the DNA evidence has little or no probative value.
82. [82]
    The court stated:

“Moreover, one of the dangers associated with DNA evidence, is what has come to be known as the ‘CSI effect’.  The ‘CSI effect’ is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings.^[46]  As we have explained, as a matter of pure logic, the DNA evidence has little or no probative value.  By virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy — no matter the directions of a trial judge — and give it weight that it simply does not deserve.  The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small.”^[29] (My underlining).

83. [83]
    In Dadley v R^[30] (‘Dadley’) the New South Wales Court of Appeal allowed an appeal against conviction.  The applicant was charged with two counts of sexual intercourse without consent and one count of indecent assault.  He was found not guilty of one count of sexual assault but guilty of sexual assault and indecent assault. The issue at trial was whether the sexual offending had occurred. The argument on appeal was whether the verdicts were inconsistent, whether DNA evidence rendered the verdicts unreasonable and whether the DNA evidence should have been excluded pre-trial. The appeal was allowed.
84. [84]
    Dadley can be distinguished from the present case for the following reasons:

• Small amounts of the defendant’s trace DNA were detected on the complainant’s vagina following a SAIK test conducted.
• The expert evidence was to the effect DNA would only survive in the vagina up to 12 hours, whereas the SAIK test was performed some 17-18 hours after the alleged assaults.
• The DNA was identified as trace DNA detected in very small quantities and low concentrations.  The profiles occurring were one in 470 or 1 in 750.
• There was a real prospect that trace quantities of DNA were transferred, either at a time the complainant grabbed the defendant and marched him to the door, or whilst the complainant was lying naked in the bed the defendant slept in after she had forced him to leave the house. 
• The complainant also scratched his face.

85. [85]
    The court held the timing of the SAIK examination increased the likelihood that the DNA had been innocently transferred sometime within the 12 hours preceding the complainant’s examination, which was at least five hours after the alleged sexual assault occurred.  There was a real possibility the complainant could have picked up traces of the defendant’s DNA when physically dragging or frogmarching him out of the apartment and/or the complainant scratching the applicant’s ear and face or when she returned naked to the bed where the defendant had been sleeping, which meant his DNA had likely been transferred to her hand and then onto her vagina.
86. [86]
    These unique facts supported the expert’s opinion that she could not say how the defendant’s DNA was transferred to the complainant’s vagina.

87. [87]
    In Ramaros v The Queen^[31] (‘Ramaros’) an interlocutory appeal was heard by the Victorian Supreme Court of Appeal.  The applicant was charged with murder.  The principal issue was whether the applicant was the killer.  The appeal was against two pre-trial findings by the trial judge relating to the admissibility of the defendant’s DNA found on a pair of scissors, a meat cleaver and a boning knife with which it was alleged the complainant was killed. The trial judge ruled the DNA evidence was probative and should not be excluded.
88. [88]
    The knife was found protruding from the deceased’s eye. The other implements were found in the deceased’s kitchen drawer.
89. [89]
    It appears from the judgment that the applicant and deceased were in a long-standing relationship which included many visits by the applicant to the deceased’s flat.  The defendant submitted a jury could not exclude the possibility that the applicant’s DNA had been innocently deposited onto the cleaver, boning knife and white-handled scissors.  It was submitted that the presence of the applicant’s DNA on a pair of scissors also found in the drawer near the cleaver, but not allegedly used in the attack, underscored the possibility of innocent transfer.  It was argued the expert’s evidence suggesting the unlikelihood of indirect transference was unreliable. 
90. [90]
    The Court of Appeal concluded as follows:

1. The evidence of DNA on the three implements was plainly relevant as each could have been used in the killing and the applicant’s DNA was deposited on each of them.

2. A trial Judge must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.[32]
3. The cases referred to by the defendant, including Wise and Paulino, were distinguished:

“The cases provide examples of circumstances in which, in a criminal trial, DNA evidence has been excluded because the results of examination were open to competing hypotheses, one inculpatory the other exculpatory, either of which could be preferred to the other on any scientific basis in evidence; or where the evidence did not permit a conclusion of direct transference (as alleged by the prosecution), as opposed to the possibility of secondary transference by contamination. In the present case, however, the evidence of Dr Goray (the expert), if accepted by the jury, is capable of excluding as a reasonable hypothesis the presence of the applicant’s DNA on the relevant items through indirect transfer.  That is particularly so when the DNA evidence is considered in combination with the other evidence in the case.^[33]” (my underlining)

91. [91]
    The Court held the case was one where they considered suggested limitations of Dr Goray’s evidence were capable of being adequately exposed by the defence and properly evaluated by the jury.  The Court considered this was not a case where there was any real risk that the jury would be overwhelmed by the science (CSI effect)
92. [92]
    At paragraph [46] they stated,

“Although we do not ignore the danger of the ‘CSI effect’ discussed in Wise and Paulino we agree with the trial judge that directions will be capable of substantially ameliorating, if not eliminating that danger.” 

93. [93]
    The interstate authorities, except Ramaros, each concern a set of circumstances which gave rise to a real possibility that transference had occurred by other than primary means. In contrast, the present case is one where the defendant’s DNA profile is located on the complainant’s underpants in circumstances where there is evidence, he had only had contact with the complainant when he hugged her on the outside of her clothing, then by him later briefly brushing against her clothed body on the sofa bed.  An inference can be drawn that the DNA evidence is consistent with the complainant’s version of events. On the other hand, the defendant will have an opportunity to cross-examine the DNA experts about the possibilities of secondary and other forms of transfer both generally, and in the factual circumstances of the present case, and address the jury on the evidence.

R v Trinh^[34](“Trinh”)

94. [94]
    The defendant sought to distinguish the decision of a Judge of the District Court of Qld in Trinh, on the basis that the factual scenario in that case meant there were reasons why a jury might consider the secondary transfer to be “not a reasonable possibility”, as opposed to the present case in which the defendant submits that the expert evidence would not assist a jury to determine which of the competing inculpatory or exculpatory explanations to prefer. 
95. [95]
    In Trinh, an application to exclude DNA evidence was dismissed.  The defendant was charged with eight counts of contamination of goods with intent.  The prosecution case was that in each instance the defendant inserted a needle into a strawberry whilst possessed with the requisite intent.  As part of its circumstantial case, it intended to rely on evidence to the effect the DNA of the defendant was located on one of the needles.  The defendant submitted the evidence should be excluded on discretionary grounds that it was unfair to allow the evidence to be admitted.  The defendant, through her employment could be linked with the picking and packaging of strawberries for sale.  Some strawberries were discovered to contain needles.  One strawberry had two needles found inside it. The needles were examined for the presence of a DNA.  One of two needles revealed the presence of DNA from two contributors resulting in a partial mixed DNA profile.  The results showed that it was more than 100 billion times more likely that the defendant contributed to the mixed sample than some other person chosen at random from the community.  During cross-examination, the forensic scientist accepted she was unable to say how DNA came to be on an item; that it is beyond dispute DNA can be transferred from one item to another and that there were various 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.
96. [96]
    The defendant submitted the evidence was irrelevant and therefore inadmissible or alternatively, that it should be excluded as an exercise of discretion. The defendant submitted on the application that assuming the DNA was the defendants, there was a plausible and innocent explanation open on the evidence as to how the defendant’s DNA was located on the needle, namely through secondary transfer of her DNA which was innocently placed in a relevant in the course of her work duties.  It was submitted that prosecution could not exclude the possibility of secondary transfer accounting for it being on the needles.  It was submitted that, in light of the innocent explanation and the potential to use the evidence as evidence of propensity, there was a real risk the jury would place undue weight on the DNA evidence as it has an appearance of conclusiveness.  It was submitted that directions could not cure what was a significant risk of misuse of the evidence.  In that case, unlike the present case, the prosecution’s contention that the DNA was deposited on the needle by way of primary transfer by the defendant was an indispensable step towards reasoning to guilt.  Therefore, the prosecution would have to establish proof beyond reasonable doubt in light of other evidence it accepted. 
97. [97]
    The Judge determined that although the prosecution could not negate the possibility of secondary transfer, there were reasons having regard to other evidence why the jury could consider that secondary transfer was not a reasonable possibility, bearing in mind that proof beyond reasonable doubt is not necessarily the same thing as scientific certainty.  The Judge concluded there was no real risk of any prejudice attached to the supposed “CSI effect” of the statistical evidence such as to amount to the relevant prejudice. Any risk of relevant prejudice could be catered for by appropriate directions as considered necessary.  The Judge concluded it was a matter for the jury whether they consider the evidence to have high probative value.  He declined to exercise his discretion to exclude the evidence. 

The facts of the present case

98. [98]
    The essence of the defendant’s submission was summarized by Mr Holt during oral submissions as follows: “Our submission though, is that there is – where in truth, there is no scientific basis to discern which of the two scenarios is more likely or not, then there is, in fact, no probative value because the Crown’s inviting speculation”.^[35] Alternatively, if relevant, only marginally so, and carrying a significant risk of prejudice to satisfy the test for exclusion. In my view, that submission is not correct. It ignores the fact the scientific evidence must be considered along with all the circumstances of the rest of the crown case.
99. [99]
    As noted in Trinh, scientific proof is different from proof beyond reasonable doubt. See R v Summers.^[36] This principle was indirectly reinforced in the recent decision of R v Novley^[37] where the Court of Appeal upheld the validity of a direction in a murder trial which referred to cross-examination of the pathologist establishing other possible (innocent) mechanisms/causes of death as being “really theoretical possibility, because he doesn’t know anything about what happened at Sturt Lodge that day”. Although Summers is not cited, the two decisions are consistent.
100. [100]
     The defendant has not provided to the court, for the purposes of this application, any statements from the other witnesses who were at the apartment that night. It is unknown at this time what evidence each will give about their interactions with each other during the evening, or with the furniture, towels, crockery and cutlery, bathrooms etc in the apartment prior to the alleged offences.
101. [101]
     The factual circumstances available for the purpose of this application are limited to the complainant’s version in her statement and addendum statement of the events that evening (and one or two factual matters referred to in the prosecution outline). The information from these sources includes:

• The complainant and N had intercourse resulting in N ejaculating prior to going to the apartment.
• The underpants that the complainant put on at N’s unit, after having sexual intercourse with N, were the same underpants she wore for the rest of the evening.  She did not remove them until she provided them to hospital staff or police after the alleged offending.
• The only evidence that her underpants were otherwise removed is when the defendant handled them and pulled them down during the alleged offending.
• The complainant did not put on the dress she wore to the party until after she had intercourse with N. This was the dress which she was wearing during the alleged attack.
• There was no intimate sexual interaction between the complainant and N whilst at the apartment.
• The complainant gave the defendant a short hug when she arrived but did not touch him again until he brushed against her briefly while she was fully clothed on the sofa bed
• The group were playing games and drinking, sitting at the table and on the couches, although information as to how, when and where they sat, and what contact they had with each other is not available to this court from other statements.
• N did not sit on the sofa bed, nor does he recall seeing it folded out during the night (this information comes from the crown outline. I don’t have N’s statement).
• The only evidence that the defendant removed his clothes at any stage in the apartment that night is from the complainant, which was during the alleged rapes.
• There is no suggestion from the complainant’s statement that the defendant ejaculated.
• There is no other evidence at this stage that would obviously account for a transfer of the complainant’s DNA to the defendant’s penis or the defendant’s DNA to the back of the complainant’s underwear other than the complainant’s version of events.

102. [102]
     Presumably the crown will lead evidence at trial that, just because a person’s DNA evidence is excluded, does not mean that the person did not touch the relevant object. This evidence will be relevant when the jury assesses the DNA evidence in the factual circumstances of the case in relation to the presence of DNA on some objects and lack of DNA on other objects.

Conclusion

103. [103]
     I am satisfied the location of the defendant’s DNA on the rear of the complainant’s underwear and the location of the complainant’s DNA on the defendant’s coronal sulcus (dry swab), in the factual circumstances outlined in the complainant’s statement is circumstantial evidence capable of supporting the complainant’s evidence that the defendant had vaginal and anal intercourse with her. The prosecution has satisfied me the evidence is relevant and admissible. At this point, at least, it is speculative to say that the complainant’s and defendant’s DNA was transferred to intimate locations innocently in the absence of other evidence of people’s movements and interactions in the apartment. Even after hearing evidence at trial, it will likely be open to a jury to conclude that, while it is theoretically possible that the defendant’s DNA was innocently transferred to these two highly significant places, any doubt raised by that theory can be dismissed as being unreasonable.
104. [104]
     Given the likelihood calculations and the location of the DNA, I am not persuaded it has only slight probative value or that any impermissible prejudice is substantial. Having regard to the complainant’s statements and the intimate locations of the relevant DNA, the jury may consider secondary transfer was not a reasonable possibility. Any risk of impermissible reasoning or misuse of the evidence, including dangers of “the CSI effect,” can be dispelled by appropriate directions. I consider that a jury properly directed would well be able to deal with the competing inferences that may arise on the evidence with respect to the DNA evidence concerning the possibilities of primary versus secondary or tertiary (etc) transfer in the circumstances of this case. I am not persuaded the evidence should be excluded on this basis either under common law principles or pursuant to s 130 of the Evidence Act.
105. [105]
     Mr Holt indicated, in his oral submission, that if the DNA evidence in relation to the underpants, glans penis and coronal sulcus was not excluded on the basis of inability to exclude transfer of DNA by innocent means, then all the DNA evidence should remain. Mr Holt further submitted that the “not particularly good profile” of 850 would be a question of weight, rather than admissibility or exclusion^[38].
106. [106]
     The evidence of the glans penis swab potentially exculpates the defendant, subject to earlier observations of the “weakness” of that likelihood figure. It should remain in evidence, even if only as a matter of fairness to the defence.

Orders

107. [107]
     Application that the coronal sulcus (dry) and the glands penis (wet) swabs from the sexual assault investigation kit – JC2 in the name of the defendant be excluded from the trial of the defendant is dismissed.
108. [108]
     Application that DNA sample ‘1094204744 fabric: Item H2 – Underpants (rear)’ be excluded from the trial of the defendant is dismissed.