HAWARD v R [2018] NZCA 506

HAWARD v R [2018] NZCA 506 [16 November 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA226/2017[2018] NZCA 506BETWEEN JASON GLENN HAWARDAppellantAND THE QUEENRespondentHearing: 31 July 2018Court: French, Simon France and Moore JJCounsel: S N Hewson the AppellantK S Grau for RespondentJudgment: 16 November 2018 at 11 amJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence on appeal is granted.B The appeal against sentence is dismissed.C The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)[1] Mr Haward was convicted following trial by jury of one charge of sexualviolation by rape.1 The key issues at trial were what sexual acts had occurred, and1 Crimes Act 1961, ss 128(1)(a) and 128B.whether such acts were consensual. Two scientists gave evidence for the Crowntending to contradict Mr Haward's claim no sexual intercourse took place.[2] Mr Haward appeals his conviction on the basis there was a miscarriage ofjustice because of the way the forensic evidence was dealt with. Initially, Mr Hawardalso appealed against his sentence,2 but did not pursue that before us. We accordinglydismiss the appeal against sentence.BackgroundRespective cases[3] The Crown's case was that on 21 April 2016 Mr Haward raped the 15 year oldcomplainant at Paraparaumu Beach. She had been with a friend at the local shopswaiting for a fish and chips order, until she left her friend and walked towards hernearby home to obtain alcohol. On her way she encountered Mr Haward. She did notknow him. She asked if he would give her $1.50 so she could take a bus to visitanother friend. The Crown case was Mr Haward grabbed her and dragged her downan access lane towards the beach. He forced her to perform oral sex on him and thenraped her. Distressed and naked, the complainant picked up her clothes and ran home.[4] At trial, Mr Haward's evidence was that the complainant approached him andoffered sex. He agreed and the two made their way down the access lane. WhenMr Haward was unable to perform sexually he said the complainant attempted tostimulate him. She did this by putting his hand on her groin before straddling him bysitting across his genital area. Neither of these manoeuvres succeeded in arousingMr Haward who, when asked for $50, decided to pay only $30. According toMr Haward this prompted the complainant to steal his wallet and run home. He deniedthat any sexual intercourse took place, insisting the only skin to skin contact was whenshe placed his hand on her groin and rubbed her genitals against his groin.[5] Mr Haward was charged with sexual violation by unlawful sexual connectionand sexual violation by rape. He was acquitted on the former, but convicted of rape.2 Seven years and six months' imprisonment: see R v Haward [2017] NZDC 8275.Forensic evidence[6] A little over 24 hours after these events, the complainant was examined byDr Wright. She recorded scratches on the complainant's jaw, chest, arms, buttocks,legs and upper back. Dr Wright took six genital swabs: one introital swab (taken justinside the vaginal opening), two vaginal swabs (higher up near the cervix), a "blind"vaginal swab (taken three to four cm inside the vagina), and two cervical swabs.[7] At the trial the Crown called two experts from the Institute of EnvironmentalScience and Research (ESR). No expert evidence was called by the defence.Ms Knight's evidence: the AP and PSA tests[8] Ms Knight was one of the ESR scientists called. She gave evidence onthe examination and testing of the swabs. No spermatozoa were visible.Two presumptive tests designed to detect the presence of semen were then conducted:(a) the acid phosphatase test (AP test), which tests for the presence of anenzyme found in semen; and(b) the prostate specific antigen test (PSA test), which tests for the presenceof a protein that is specific to human prostate glands.[9] Only the introital swab returned a positive result for the AP test, whichMs Knight advised was treated with caution before proceeding to the PSA test.The PSA result was a faint but detectable reading on the introital swab, the only swabto which the PSA test was applied.[10] The combination of the test results led Ms Knight to express the opinion therewere likely traces of semen on the introital swab. She also proffered explanations asto why no spermatozoa were found. Ms Knight said that the positive results pointingto semen, despite the absence of spermatozoa, may have been the consequence ofthe loss and breakdown of spermatozoa and semen components over time, noting:It could be that semen had only contacted the entry to the vagina, or it couldbe that it had already drained from the rest of the vagina at the time [of takingthe swab].[11] Under cross-examination Ms Knight accepted that the AP enzyme is naturallyfound in vaginal fluid, which is why the result was treated with some caution. And,in relation to the PSA test, Ms Knight accepted "in certain women a very, very, very,very low amount of PSA can be found". However, she said the presence of PSA onthe introital swab, in combination with the weak AP result, led her to conclude thatthere were traces of semen on the swab.[12] In re-examination Ms Knight clarified her conclusion was it was "likely" therewere traces of semen on the swab. She was further questioned about the PSA levelsin women. Ms Knight said that there was academic literature confirming PSA may bedetected at extremely low levels in women, usually older women. In response toquestions from the Judge she added that the research had shown that the AP and PSAtests show the levels increase "massively" in older women so that when she learnedthe complainant was 15 years old she was not surprised by the negative AP resultsfrom the cervical and vaginal swabs.Ms Patel's evidence: the DNA analysis[13] The other ESR witness was a DNA analyst, Ms Patel, who examined the blindand introital swabs (the other swabs were not sent to her for analysis). She subjectedthe samples to YSTR testing, which examines 27 sites on the male or Y chromosome.This revealed the presence of male DNA. Of the 27 sites examined only some gaveresults, but only a single male profile was present. This was found on the blind vaginalswab. That profile was then compared against a population database of 4,437 males.Ms Patel gave evidence that it was at least 420 times more likely that the DNA camefrom Mr Haward rather than from some other randomly selected male inthe New Zealand population not paternally related to him. She described this result asproviding "strong scientific support that the male DNA originated fromMr Haward".[14] A key issue Ms Patel was cross-examined on was transference of DNA.Ms Patel accepted that DNA is commonly transferred by touch. She said thatthe amount of DNA deposited is determined by several factors including friction andthe duration of exposure to the DNA source. When asked, Ms Patel accepted the DNAcould have been transferred by the complainant sitting naked on Mr Haward's genitalarea or by Mr Haward placing his hand on her groin. She also accepted the possibilityof DNA transference by swab.[15] Dr Wright, who undertook examination of the complainant, was similarlycross-examined. She was asked whether she could rule out the potential fortransference by swab from the introital area into deeper parts of the vagina.The exchange went as follows:A. It would be quite difficult because you're going through the, so you'reonly really going through the hymen, you're not touching any otherarea.Q. It's possible though, isn't it?A. Not really because it's not really touching any other areas of skin.Respective submissions on the expert evidence[16] In her closing address Crown counsel told the jury that the expert evidencecorroborated the complainant's account, highlighting two points in particular. First,the ESR evidence showed the presence of semen in or about the complainant's vagina;and second, this was supported by the presence of Mr Haward's DNA on swabs takenfrom inside the complainant's vagina.[17] Counsel for Mr Haward submitted the evidence did not go so far. No semenor spermatozoa was found inside the complainant's vagina, but rather only male DNAwhich could have been transferred from skin to skin contact. She emphasised thatthere was no sperm or semen in the test of the cervical swabs.Grounds of appeal[18] The appeal is brought under s 232(2)(c) of the Criminal Procedure Act 2011.The Court must allow the appeal if it is satisfied that a miscarriage of justice hasoccurred for any reason. A miscarriage of justice includes any error, irregularity, oroccurrence in the trial that has created a real risk that the outcome of the trial wasaffected or has resulted in an unfair trial.33 Criminal Procedure Act 2011, s 232(4).[19] Mr Haward advanced three reasons why a miscarriage of justice has occurred:(a) the forensic evidence relating to the presumptive seminal testing andDNA profiles was misleading and/or incorrect;(b) in summing up, the trial Judge did not adequately explain the correctapproach to considering forensic evidence; and(c) the defence should have engaged its own expert in relation tothe forensic evidence, and the failure to do so compounded themiscarriage of justice.[20] We deal with each of these grounds in turn.Was the ESR evidence misleading and/or incorrect?[21] Mr Hewson, for Mr Haward, submitted the ESR evidence was not onlyoverstated in its value but also misleading and wrong.[22] In support of this claim, Mr Haward provided evidence from Mr Doyle,a consultant forensic scientist with experience in the forensic application of analyticalscience both in the United Kingdom and New Zealand. Mr Doyle's evidence focusedon the AP, PSA and DNA testing. He criticised the techniques used and the findingsmade by Ms Knight and Ms Patel. Specifically, he made four criticisms, which weaddress below.[23] In a number of respects, Mr Doyle's evidence fell below the standard of expertevidence that would typically be admitted on appeal. However, because of thecentrality of the evidence to Mr Haward's grounds of appeal, with some hesitation wegrant leave to admit the evidence of Mr Doyle and the reply evidence from the Crown.(a) Problems with the PSA testing[24] The PSA test was carried out at ESR using a commercially produced kit.The PSA test operates as follows. After a sample is introduced, a positive test isobtained when a horizontal red line appears in the test capsule's window. If no lineappears, the result is reported as a negative. But the brightness of the line is alsomaterial. Photographs were taken of the test result.[25] In her evidence at trial Ms Knight reported a weak positive result indicated bya faint red line. However it emerged in the course of evidence before us that althoughMs Knight supervised the testing, she only ever saw a photograph of the test result.Instead, the positive result was reported by technicians assisting her. That would nothave been apparent to the jury, as it was not the impression given by Ms Knight herself.In our view it should have been made clear to the jury that the PSA test was notconducted by Ms Knight personally. However, we are satisfied that no miscarriage ofjustice arose from this omission. For reasons we explain, it did not alter the expertbasis for her evidence. Additionally, the Crown disclosure revealed that aspects ofthe PSA testing were undertaken by others.[26] Mr Doyle objected that no positive control was used in the testing, and that nored line was evident in the photographs. We do not find the first objection compelling.Ms Knight explained that introducing a semen sample as a positive control would onlyproduce a bright and obvious red line, which would be of little or no assistance ininterpreting the result.[27] Mr Doyle's main criticism was to say that no red line was, in fact, evident inthe photographs. But we consider some deference to Ms Knight's expertiseappropriate in the circumstances. Mr Doyle accepted he was unfamiliar with the testkits in question. In contrast, Ms Knight has observed this test at least 50 times.Although Ms Knight did not herself observe the colour change, she maintainedthe photographs reveal a faint pink line indicating a weak positive result. This isconsistent with the reported observations of the assisting technician and two otherscientists who viewed the result and also described a faint red line.(b) The overall conclusion about the presence of semen[28] Mr Doyle claimed that because the AP test produced only a weak positive,Ms Knight misstated the academic literature when she told the jury thatthe combination of a positive PSA test and a strong to moderate AP test confirmedthe presence of semen.[29] In the course of Ms Knight's evidence before us it was apparent this criticismwas also unfounded. In fact, if anything Ms Knight's conclusions were conservative.[30] Unlike the PSA test, Ms Knight observed the AP test result through a glasswindow at the laboratory. She explained that an AP positive result must be obtainedwithin 30 seconds of the test commencing. If that occurs the sample is likely to besemen based. A result obtained after 45 seconds should be reported as vaginal fluidbased. A result obtained between 30 and 45 seconds was described by Ms Knight asthe overlap zone, requiring retesting.[31] In the present case, the AP reaction commenced at around 25 to 30 seconds andthen strengthened. So adopting the ESR guidelines, the result was in fact moderate.Ms Knight described the result as moderate before us, but as weak during the trial.At trial she gave her conservative finding because she was not sufficiently persuadedabout the strength of the colour she observed. She acknowledged, however, that otherexperts would have reported the result as moderate. As she explained in her reportfiled on the appeal:4Validation work by ESR has determined that a positive result in the [AP] testwithin 30 seconds should be considered as indicating the probable presence ofsemen, and that this result along with a positive PSA test is sufficient toconfirm the presence of semen.[32] Thus we are satisfied there was no error in the opinion Ms Knight offered tothe jury.(c) AP levels for older females[33] Thirdly, Mr Doyle was critical of Ms Knight's evidence that the levels of APare higher in the vaginal fluid of older females. Ms Knight accepted that there doesnot appear to be a published study supporting this comment, and so conceded she wasincorrect when she stated that this phenomenon was supported by the literature.She said this was an honest mistake but that her conclusion had been informed byyears of casework.4 Footnote omitted, emphasis in original.[34] It is regrettable Ms Knight made these comments. However, we are notsatisfied that this error gave rise or contributed to a miscarriage of justice. Althoughthe Judge examined Ms Knight further on the topic, the point was not addressed byeither counsel at trial nor did the Judge refer to it in his summing up.(d) Problems with Ms Patel's evidence[35] Mr Doyle's final criticism related to the blind vaginal swab from whichMs Patel obtained a male DNA profile consistent with Mr Haward's.[36] He criticised Ms Patel's statistical evaluation, taking exception to how Ms Pateldescribed a likelihood ratio of 420 as "strong scientific support for the proposition thatthe male DNA originated from Mr Haward". He stated "420 is a lot lower than1013". Mr Doyle's critique is mistaken. Ms Patel explained his misapprehension inthe following way:Mr Doyle is confused and may show a lack of understanding about how theLR value for autosomal STR DNA results and Y STR DNA profiling resultsare derived.Using Mr Doyle's example of a LR of 1013 may be typical for a full autosomalSTR DNA profile. This is because the autosomal DNA sites used in forensicDNA tests are selected because they are either found on separatechromosomes or are located so far apart on the same chromosome such thatthey can be regarded as being independent events. That is to say, a resultdetected at one DNA site is not influenced by results found at another DNAsite. It is this independence that allows the results from within an autosomalDNA profile to be multiplied together with each other. It is this multiplicationthat provides the large LR numbers that Courts are similar with for autosomalDNA profiling results.It is a well-known fact and accepted by the forensic community that thisindependence property is not held for Y STR DNA sites because they are allfound on the same Y chromosome. Therefore, whilst Y STR DNA results canbe obtained at each DNA site, a different approach is used for performinga statistical evaluation of the strength of the Y STR evidence. Here the wholeY STR DNA profile is considered the equivalent of one autosomal DNA result,for Y STR this is called a "haplotype".At the time of the forensic DNA testing a LR relating to the probability ofthe Y STR DNA evidence will only reach approximately 450 at ESR. This isbecause the LR is limited by the size of the population database available.Therefore, the LR of 420 is on the high end of the scale for this type ofevidence. This is strong scientific support based on the LR scale described inAppendix 1 of my formal written statement. This scale is common across allforensic disciplines at ESR.It is inappropriate and misleading to compare the large LR values which canbe generated from autosomal DNA profiling results with those produced forY STR DNA evidence as the approach for statistical evaluation is completelydifferent.[37] Mr Doyle further contended there was a negative result for the presence ofsemen, and therefore the cellular source for the DNA was unlikely to be semen.He later recanted, admitting he was wrong to claim the absence of DNA on the introitalswab meant that the source of the DNA on the blind swab was not semen. NeitherESR witness suggested the source of the DNA was semen. In fact, Ms Patel readilyacknowledged that DNA testing cannot reveal the source or nature of the DNA.[38] In any case, no improper weight was placed by the Crown in its closing addresson the coincidence of the introital tests indicating the presence of semen and the blindswab indicating the presence of male DNA linked to Mr Haward. Instead the Crowncase — that there had been penetration of the complainant's vagina by the defendant'spenis — was posited on two propositions:(a) first, the ESR evidence — showing probable semen in the introital, andthe presence of DNA linked to the defendant three to four cm insidethe complainant's vagina — provided strong circumstantial support forthe Crown case; and(b) there was no credible or available narrative tending to support analternative exculpatory explanation for the coincidence of thesephenomena.[39] For these reasons, we are not satisfied that any aspect of Mr Doyle's evidencematerially challenged the correctness of the central aspects of the expert evidencegiven by Ms Knight and Ms Patel. We do not consider that any errors Ms Knight madecreated a real risk that the outcome of the trial was affected or resulted in an unfairtrial.[40] Accordingly, this ground of appeal must fail.Did the trial Judge adequately explain the correct approach when considering forensicevidence?[41] Mr Hewson submitted that while the Judge put the respective cases to the jurythe general force of the summing up would have led the jury to conclude that a positiveDNA result was consistent with penile penetration.[42] We accept the Judge's statement there were no "significant findings of semenand spermatozoa" was somewhat awkward. In fact, there was no finding of anyspermatozoa but there was a finding that the presence of semen was likely. Aside fromthat misstatement, which in any event would have benefitted the defence, we see nocause for complaint over the Judge's account of the scientific evidence.[43] The Judge introduced the scientific evidence by adopting the conventionaldirection on expert witnesses and opinion evidence. He accurately summarised theevidence of both ESR experts. If anything, he understated the force of Ms Knight'sevidence, stating she had found "weak signs, or weak signals of semen in the samplethat was taken from the very initial part or opening area of the vagina". He addedappropriate cautions to his summary of Ms Patel's evidence, particularly her statementit was 420 times more likely that the DNA came from Mr Haward rather than fromanother male selected randomly from the New Zealand population. He made it clearthat does not mean the defendant is 420 times more likely to have committed the crimethan any other person. Against this background, the Judge then appropriatelydescribed the defence case that there was skin to skin contact between Mr Haward'shands and the complainant's genitalia, and the complainant also sat on Mr Haward'sgroin. The Judge told the jury that the defence case was that if any DNA was found itcould well have come from that type of contact.[44] We can see nothing in Mr Haward's criticism of the Judge's summing up onthis point. For these reasons, this ground must also fail.Should a defence expert have been engaged for trial?[45] At the hearing before us, Mr Hewson accepted that trial counsel's conduct didnot fall below the required standard. In an affidavit filed for this appeal, trial counselsaid she decided that on the basis of her instructions there was no need to instructan expert. This was because her client insisted that neither oral nor penile sexualviolation took place. Instead, Mr Haward claimed there was only skin to skin contact.Thus both the presence of DNA and the likely presence of semen could be explainedon the basis of transference because during the encounter Mr Haward rubbed his penisin an attempt to arouse himself and then touched the victim's groin. She also decidedMs Knight's claim that semen was likely present could be addressed duringcross-examination. Furthermore, trial counsel discussed the question of whether anexpert opinion should be obtained with senior colleagues within the Public DefenceService. It would seem that their advice confirmed counsel's view.[46] This was a tactical decision for trial counsel to make. We considerMr Hewson's concession that no criticism can be made is a proper one. At trial,counsel's cross-examination of the experts focused on these issues and the answersobtained were consistent with the trial strategy. This permitted the defence to run itscase as had been anticipated. The decision made by trial counsel was not inconsistentwith her instructions, but in any event it was not a fundamental decision as describedin Hall v R.5 It was one a competent lawyer would have made.6 Accordingly nomiscarriage of justice arose from the decision, and this ground of appeal must fail.Result[47] The application for leave to adduce fresh evidence on appeal is granted.[48] The appeal against sentence is dismissed.[49] The appeal against conviction is dismissed.Solicitors:Ord Legal, Wellington for AppellantCrown Law Office, Wellington for Respondent5 Hall v R [2015] NZCA 403, [2018] 2 NZLR 266 At [65]–[77].