R v Stokes [2000] NTSC 12Evidence - DNA evidence - admissibility

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R v Stokes [2000] NTSC 12
Evidence - DNA evidence - admissibility
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R and Stokes [2000] NTSC 12






FILE NO: SCC9919706

#DATE 16:3:2000
DELIVERED: 16 March 2000

HEARING DATES: 8 March 2000



Evidence - DNA evidence - admissibility.

Order: evidence excluded.



Crown: Rex Wild, QC with J Martin

Defendant: Jon Tippett


Crown: Director of Public Prosecutions

Defendant: Dalrymple and Associates

Judgment category classification: C

Judgment ID Number:

Number of pages: 20





R and Stokes [2000] NTSC 12

No. SCC9919706









(Delivered 16 March 2000)

Mildren J:

[1] This is an application pursuant to s26L of the Evidence Act to determine the admissibility of certain DNA evidence which the Crown wishes to lead at the trial of the accused for murder.

Factual Background

[2] For the purposes of this ruling, I am asked to assume that the Crown will call evidence at the trial to the following effect:

(1) The deceased victim, Greg Bebensee, (Bebensee) arrived in Darwin from Karratha, Western Australia, in early May 1999. He had travelled to Darwin in the company of a young woman but they obtained separate accommodation once they reached Darwin. Bebensee became employed.

(2) The accused (Stokes) and his friend Lee McLaughlin (McLaughlin) had come to Australia from Asia at the beginning of May, landing in Darwin. They were both graduates of an English university, although nationals of Northern Ireland. They had known each other at university and again had flatted together in Singapore where they both worked as civil engineers. After some year or so in Singapore working they travelled for a month or so in Asia, before arriving in Australia. Having been in Darwin for a short time, they purchased a motor vehicle, travelled to northern Australia and camped and worked in the Kununurra district before returning to Darwin at the end of May 1999.

(3) Bebensee arranged to meet friends on the evening of Saturday 5 June 1999. He used his Eftpos card at about 9.25 p.m. that evening at the Central Supermarket, Smith Street (a receipt was in his wallet) and then met two friends near the Top End Hotel. They spent an hour or two at Squires and then arrived at the Victoria Hotel shortly prior to midnight. Bebensee left in the early hours of Sunday 6 June 1999. The video at the Victoria Hotel shows him leaving the upstairs part of the premises at 2.09 a.m. and he had probably left the vicinity of the hotel shortly after 2.17 a.m. At 3.30 a.m. he was seen lying at the end of Packard Place, Larrakeyah, where he was later found at 6.00 a.m. to be deceased.

(4) The deceased was found lying on his left side. He had apparently been attacked with an instrument, such as a half axe camping tool, which had caused his death. The deceased was wearing inter alia jeans and a belt, attached to which was a ring similar to a keyring. The deceased's wallet was usually attached to this ring by a chain. The wallet and chain were missing. The deceased usually kept his wallet in his right hip pocket. The inside lining of the right front pocket was found half pulled out. Samples were taken from inter alia the outer edge of the right pocket and from an area of soiling below the pocket edge for DNA sampling.

(5) On 5 June 1999, Stokes and McLaughlin were staying at the Shady Glen Caravan Park in Winnellie and had travelled into the Darwin City area in McLaughlin's yellow Ford station wagon, the use of which they shared, and in the spare wheel compartment of which was usually kept a half axe camping tool.

(6) Stokes, together with McLaughlin and two acquaintances from the Shady Glen Caravan Park, were drinking together at the Shenannigans Pub on Mitchell Street in the late evening of Saturday 5 June 1999. The names of the acquaintances were Chris Cathcart and Scott Cathcart. McLaughlin left some time before the Shenannigans closing time of 2.00 a.m. and caught a taxi back to the Caravan Park. Scott Cathcart also left Shenannigans before closing time and on arrival at the Caravan Park saw McLaughlin talking to some people at a nearby area of the Caravan Park. McLaughlin came over to his campsite (which was next to the site shared by Stokes and McLaughlin) and after a brief conversation between Scott Cathcart and McLaughlin, McLaughlin returned to his conversation with the (unidentified) people in the caravan park. Scott Cathcart went to sleep and at some stage later he woke up to see that the yellow station wagon had returned and that Stokes was sitting on the tailgate smoking a cigarette. McLaughlin does not agree that he had these discussions but says that he was talking to the taxi driver who dropped him off.

(7) Prior to closing time in Shenannigans, while Chris Cathcart was talking to two Australian girls he had met there, Stokes approached him on two occasions and asked him to help him "roll" another individual (not identified to Chris Cathcart and not alleged to be Bebensee) said by Stokes to be present in Shenannigans.

(8) At closing time in Shenannigans, Chris Cathcart walked up Mitchell Street towards Kitty O'Sheas Pub together with the two Australian girls he had met in Shenannigans. He separated from Stokes and saw him walking along Mitchell Street in the other direction, towards where the yellow station wagon had been parked and in the company of an English girl that Stokes had met in Shenannigans. Chris Cathcart spent some time in town with the Australian girls (at Kitty O'Sheas and then having coffee) and then got a lift with them to the caravan park, arriving at about 3.30 a.m. At that time the yellow station wagon was parked back at the camping site used by Stokes and McLaughlin.

(9) McLaughlin's story is that he was awoken by Stokes on his return from town. Stokes told McLaughlin he had just killed a man in town, using the half axe tool. He produced this and Bebensee's wallet. McLaughlin did not believe him, but did after seeing Monday morning's paper.

(10) On 7 June 1999, Stokes and McLaughlin left Darwin and drove to Gregory National Park via Katherine. According to McLaughlin, they stopped at Howard Springs to hide the wallet and north of Katherine to throw the half axe into the scrub. They sold some of their personal gear in Katherine as they were nearly broke. They stayed overnight in Katherine and then drove to Kununurra the next day. They both found work on a melon farm just outside of Kununurra and stayed working there for about two months. They then travelled together to Broome.

(11) On the evening of 26 August 1999, McLaughlin sought assistance for anxiety at the Broome Hospital and then later attended at the Broome Police Station. He told police officers at the Broome Police Station that Stokes had confessed to him in the early hours of 6 June 1999 of having killed someone earlier that morning. McLaughlin was taken to the Northern Territory the next day by Northern Territory police and over ensuing days, provided information about things Stokes had said and done since the early hours of 6 June 1999.

(12) McLaughlin took the police to a location near the Howard Springs Nature Park where Bebensee's wallet (containing various identifying cards and papers) was found and told police that he had hidden the wallet there in Stokes' presence on the morning of 7 June 1999. The chain was found attached to the wallet.

(13) McLaughlin also took the police to an area by the Stuart Highway about fifty kilometres north of Katherine, where he said Stokes had thrown away, in his presence on 7 June 1999, the half axe tool usually kept in the yellow station wagon. He told police that this implement had been thrown away because it was the weapon that Stokes had confessed to using in the attack by him in the early hours of 6 June 1999. The tool, despite intensive police searches, has not been found.

(14) The injuries found on Bebensee are consistent with having been inflicted by a half axe tool.

(15) When questioned by Northern Territory police in Broome on 27 August 1999 after his arrest there by Western Australia police, Stokes said he did not have any knowledge of the offence and that he had "no recollection" of the confession alleged by McLaughlin.

[3] The DNA samples taken produced mixed DNA profiles. The mixtures comprised a major profile component the same as the DNA profile of the deceased. There were weaker minor components evident at nearly all the DNA loci tested. In the opinion of Ms Joy Kuhl, forensic biologist:

These results could have been produced from a single individual with some artifact (or stutter) products, or they could have arisen from two individuals, one present at a lower level than the other. [Artifact or stutter products arise when there are very strong components present. Such stutter products are normally about or under 10% of the peak height of the next largest component at a given locus]. Using a base level of 50 RFU as the reportable level, the results obtained in all the DNA analyses of these two samples are summarised in the following table:

DNA System


Front pocket edge

Soiled area of jeans








































































No result





HumTHO 1






























Note: Results depicted in Bold, Italic cannot be artifact or stutter products. The exclusions have been determined from the results depicted in Bold, Italic. Results depicted in Regular, Italic may be artifact or stutter products, or may be from another individual present in a less amount. Inconc. = Inconclusive, wk.comp. = weak component, peak height <50 RFU

The results obtained in these analyses (which have included taking note of unreportable weaker components) cannot exclude Trevor John STOKES as being a contributor to the minor components of the mixed profiles obtained from the two "tape-lift" samples at all the DNA loci tested. [Lee Martin McLAUGHLIN has been excluded at several loci and therefore could not be a contributor to the DNA profiles found on Greg BEBENSEE's jeans].

The submissions of the parties

[4] The Director of Public Prosecutions, Mr Wild QC, submitted that the Crown did not intend to take the matter further than that the sample could not have come from McLaughlin, and that the results did not exclude the accused, other than to explain to the jury that there could be a lot of other people who could not be excluded as well. As I understand it, the Crown's principal concern is to show that the DNA results exclude McLaughlin. The Crown concedes that the DNA results do not go beyond this. Mr Tippett, for the accused, objects to the evidence on three main bases:

(1) the DNA results were said to be unreliable and misleading;

(2) the results were not probative of any fact in issue, but were extremely prejudicial to the accused;

(3) the results were inadmissible because no conclusion could be drawn that the perpetrator of the crime left behind the DNA used for the sampling.

This summarises very briefly the main thrust of Mr Tippett's submissions.

[5] The main thrust of Mr Wild's submissions was that the jury were entitled to infer that the DNA which did not come from McLaughlin came from the perpetrator; and that, consequently, this was some support for McLaughlin's evidence. It will be necessary to refer to the submissions of both counsel in more detail later.

Are the DNA results unreliable and misleading?

[6] Mr Tippett's submission was based in part upon passages in the evidence of Ms Kuhl given at the committal proceedings. The relevant evidence is as follows:

MR WILD QC: Now, in the course of investigating the material that you were given, were you able to obtain DNA from the jeans of Greg Bebensee?---Yes, I tested several areas of the jeans which were somewhat bloodstained, but we were also looking for what is colloquially called 'handy' DNA, which is skin cell or skin DNA from other people who might've been touching him or - - -

All right. Clearly enough, the blood - there was a great deal of blood on the jeans?---No a - - -

A degree of blood on the jeans?---Not a great deal of blood on the jeans. There was some blood on the jeans.

All right. And were you able to identify whose blood that was?---Yes. I certainly tested an area around the right pocket, right front pocket, which was smeared blood and that produced a mixed DNA profile. The major - - -

All right?---Component of which was the same as Greg Bebensee's.

Well, now, you were then - at the time at which you already were given the samples in respect of McLaughlin and Stokes - able to try to match some of these profiles?---Well, it was not - not the actual matching as such, but to see whether the people could be excluded from the mixed profile that I had.

All right. You say you found some DNA in material on the jeans which was from a person other than Greg Bebensee?---At least one other person, yes.

And you're able to say that because some of the profiling characteristics were different to those of Greg Bebensee?---That's correct.

And could not have come from him?---That's correct.

Did you have a great deal of DNA material to work from?---I was in a situation where I had a lot of DNA from the major component - that is from the victim - and a small component of the mixture, so it was a very unbalanced mixture, if you like.

And made it difficult to get a clear profile?---It makes it very difficult to optimise the conditions for analysis.

Now, from the amount of material that you had, were you able to exclude Mr McLaughlin?---Yes, Mr McLaughlin was excluded in several of the systems, the DNA systems, that we looked at.

All right. Now, in respect of Mr Stokes, were you able to come to the same conclusion?---No, I could not exclude him from the mix profile, but there could be a lot of other people there to, (sic) or a lot of other people wouldn't be excluded as well.

Yes, all right. Well, that's a crucial issue, is it not?---Yes.

From the amount of material that you had and from the conclusions that you were able to reach, is it significant - of any particular significance, rather, that you couldn't exclude Mr Stokes?---Well, all it really means is that the profile possessed by Stokes is - could not be excluded from the minor components that I found on that - in that mix profile.

Yes, but you then went on to do some statistical analysis of those findings. It would not be, I suggest to you, a significant exclusion?---No, because there could be other people with - who similarly couldn't be excluded from that sort of mixture.

Thank you. Now, all attempts to obtain DNA, apart from that of Greg Bebensee, were unsuccessful in respect of the other items?---Yes, yes. It was just the right front pocket of the jeans and just below the edge of the jeans that I - that I actually got results.

Yes, thank you. I think, as you've said, could've come from one or more persons other than Greg Bebensee?---Yes. The reason I say that is because, as I mentioned, the difficulty in optimising the conditions for the sample, because there was a lot of Greg Bebensee there, and a small amount of whatever else was there. There are not artefacts, but there are results that occur with very high levels of one component that, in calling it, or me making a call as to what the result is, I'm not sure whether it is, as we call it, a 'stutter band' or a true peak and that's why I say it was difficult to optimise the conditions for that sample.

Thank you. In layman's terms - laywomen's terms - the amount of DNA from Greg Bebensee effectively swamped the other results?---Yes. Yes, and made it almost - well, makes it impossible to call whether some of the peaks observed were true peaks or part of the analysis of Bebensee himself.....

Mr Dalrymple: Now, you were informed - well, firstly, when you first got the jeans, you presumably - or when you did the testing for the stains in the pockets, you were - you identified at a fairly early stage what you thought the combined profile components in the stain were. Is that correct?---I made a best guesstimate, I suppose, as to which peaks were showing up consistently and higher than one would normally expect from stutter, because you must understand we were in the middle of investigative stages of a serious murder and the detectives wanted to know whether I had anyone on the data base who may fit the profile. So that, as I said, I was required to make a best guesstimate as to what I thought the profile might be. I - I always said to them, from the beginning, that it might not have anything to do with the murder at all. It could've been someone at the hotel that night on the jeans. It could've been anybody....

Is this correct, that there was a slight difference in the total range of alleles you were getting for the two stains?---Yes, there was, and that's why I said there was significantly less DNA in the soiled area, so I was getting a lot of stochastic effects and I didn't pick up the entire profile, I don't think, from that soiled area. The results were a lot more difficult to reproduce from run to run, which is typical of the very low DNA sample.

And looking at the two stains together, would you agree that it appears inescapable that the conclusion that there would have to be two other contributors, apart from Mr Bebensee, to the combined mix? Would you agree with that?---No, I don't agree with that. I - I've always said that there might be because of the difficulty in being able to tell between a stutter peak and a true peak.

In a scenario where - I suppose in particularly (sic) we're talking about the stain at the top of the jeans, the edge of the jeans, that would presumably have to be explained, assuming it happened on the night, with someone putting a hand or a part of the body which was going to emit bodily substances onto that part of the pocket. Would you agree with that?---He's got to have been touched by somebody, but that could happen in a hotel.

Can you give us a scenario in a hotel how you could see that happening, short of seeing a person putting a hand in the pocket?---I can, but I don't know whether I can say it. I mean, he could've been touched up in a pub...

[7] Mr Tippett submitted that this evidence showed that the conclusion could not be safely reached that McLaughlin's DNA was not part of the samples. In my opinion that is a question properly to be left to the jury. Mr Tippett's submission confused aspects of the above evidence which was directed to why the results did not also exclude the accused as one of the donors of the sample. The problems associated with stutter and artifacts did not apply to the results which excluded McLaughlin: see the table set out at paragraph [3] supra, and in particular the note. In order to be excluded, it was sufficient if one allele in one system differed from the analysis of the deceased's sample. The results in the table indicate that McLaughlin was excluded by the presence of different alleles in eight of the thirteen systems tested. The alleles which excluded him were taken from results depicted in bold on the chart: eg. for the HumvWA, McLaughlin had 16,20, whereas the deceased had 16,19 and no 20 allele was found on either sample. There was no cross-examination directed to show that this was wrong or unreliable in any way. The tests also showed results which, if correct, might also have excluded the accused. However, those results were not considered reliable for the reasons given by Ms Kuhl, hence she was unable to exclude him, but it is apparent that this has no other significance so far as the accused is concerned.

[8] The reference by Ms Kuhl to "guesstimates" upon which Mr Tippett relied, related to another enquiry, not relevant to this case, and does not affect the result.

[9] Mr Tippett's main argument rested upon the following propositions. First, the Crown could not prove that the sample which was not McLaughlin's was left by the perpetrator. Second, the danger was that the jury would reason that if the sample was not McLaughlin's, it followed that McLaughlin was not the murderer, and therefore the accused must have been the murderer. Third, that proof that the sample was left by the murderer had to be shown beyond reasonable doubt; but in this case the jury could not be satisfied even on the balance of probabilities. Fourthly, that even if the evidence were admissible, it was of little or no probative value and should be excluded in the exercise of my discretion.

[10] In this case, it can be assumed that however the defence puts its case, the Crown will have to satisfy the jury that McLaughlin was not the perpetrator, in order to satisfy the jury that the perpetrator was the accused. Consequently, the Crown is anxious to leave in this evidence. It is clear also that the Crown case rests upon McLaughlin's evidence and without his evidence, there is no case to go to the jury. Apart from McLaughlin's evidence and the DNA evidence, the only other evidence which the Crown can rely on as implicating the accused is the evidence of what the accused said to the police referred to in para 2(15) supra, and the evidence to be given by Chris Cathcart referred to in para 2(7) supra. Neither of these pieces of evidence by themselves prove anything, but the Crown says they tend to support, as does the DNA evidence, the evidence of McLaughlin that the accused truthfully confessed to the murder to him, and gave him the wallet to dispose of, etc.

[11] Mr Wild QC submitted that if the jury accept that the DNA left was not McLaughlin's, the Crown will invite the jury to infer that it was the perpetrator who left that sample on the basis that the motive for this killing was a robbery; that the wallet was taken from the deceased; that it could be expected that whoever carried out the robbery searched the deceased's pockets; that the pocket was searched because of the state in which it was found, and that the DNA was found in just the place you would expect to find it in those circumstances. Mr Wild QC conceded that someone else other than the perpetrator could have left the sample - e.g. another person not the perpetrator might have searched the body looking for valuables at some time between 3.30 a.m. and 6.00 a.m. on the morning of the death, but he submitted that it was open to the jury to find that it was more probable than not the perpetrator who left the sample.

[12] Mr Tippett's submission is that, as the Crown cannot exclude the possibility that another person might have left the sample, the evidence should not be let in. I agree with Mr Tippett that, unless the Crown can prove beyond reasonable doubt that the DNA in the pockets was left by the perpetrator, the jury cannot be invited to arrive at a conclusion of guilt by a process of reasoning which depends upon that fact as the major premise. Thus, it would be wrong for the jury to rely upon that major premise to conclude that because the sample was not McLaughlin's (the minor premise) the murderer/robber was not McLaughlin, and because it was not McLaughlin it must have been the accused. In Shepherd v The Queen (1990) 170 CLR 573 the High Court made it clear that in some instances there are "intermediate facts" which are indispensable links in a chain of reasoning towards an inference of guilt, and that in those circumstances the intermediate facts must be proved beyond reasonable doubt. However, that does not mean that in this case the evidence is not admissible. The Crown may be entitled to rely upon it as some circumstantial evidence, which, although by itself proves nothing, when combined with other evidence forms the "strands in a cable" from which the ultimate conclusion of guilt may be drawn. Mr Wild QC submitted that the Crown was able to draw upon a number of strands, none of which prove the accused's guilt, but which considered together may be persuasive. First, there is evidence that the accused was interested in committing a robbery at or near the relevant time, albeit not of the deceased. Secondly, there is evidence that the accused had access to a weapon at or near the relevant time of the type used to commit the murder. Thirdly, the evidence of the defendant's movements that evening does not discount the possibility that he was the perpetrator. There is therefore some evidence of opportunity, capacity and motive. Fourthly, there is evidence that the accused told the police he had no recollection of the confession alleged by McLaughlin. To my mind, none of these factors when considered together are of sufficient strength to enable a jury to draw any reference of guilt; and that is consistent with Mr Wild's concession that without McLaughlin's evidence the Crown has no case. The evidence is nonetheless technically admissible on the basis initially suggested by Mr Wild QC in that it provides some limited support for McLaughlin's evidence that the accused confessed to him of having murdered someone, who in the circumstances, could only have been the deceased.

[13] Nevertheless, in a criminal trial, admissible evidence may be rejected if its prejudicial effect outweighs its probative value. Although this principle is more commonly applied in relation to similar fact evidence, it can apply more generally (R v Swaffield (1998) 192 CLR 159 at 191-193 per Toohey, Gaudron and Gummow JJ). It has been applied in some cases where the evidence sought to be led is DNA evidence: see, for example R v Lucas (1992) 2 VR 109; R v Percerep (1993) VR 2, 109 at 114-115; R v Van Hung Tran (1990) 50 A Crim R 233; c.f. R v Jarrett (1994) 62 SASR 443. It has been applied to reject expert evidence by a pathologist: Straker v R (1977) 15 ALR 103 at 109, per Gibbs J and 115 per Murphy J.

[14] Mr Tippett's submission was that the evidence should be excluded because even if technically admissible its probative value was very slight, since it rested upon an inference that the DNA was left by the perpetrator, for which there was little or no evidence. In my opinion this submission is soundly based. Unlike fingerprints which usually do not last beyond a relatively short time, skin or other body samples from which the DNA was extracted in this case, (or 'handy' DNA as Ms Kuhl described it) may have been left there at any time. Ms Kuhl recognised the possibility that the sample may have been left by someone in a bar earlier that evening; but as Mr Wild QC conceded, the sample may have been left after death by someone searching the pocket before the body was discovered by the police and this person may not have been the perpetrator. The sample may have been left even some days earlier. It is not known when the jeans were last washed, and whether washing would have removed any traces of such samples. The inference that the sample was left by the perpetrator rests upon the appearance of the pocket, in that the inside lining was found to have been left half pulled out. But it is possible that the victim himself may have done this shortly before his death. The evidence does not show it was probable that the wallet was kept in this pocket. The inference that the sample was left by the perpetrator is therefore weak and tenuous. Even if the sample was left by the perpetrator, it does not follow that McLaughlin was not the perpetrator, or to be more accurate, one of the perpetrators. There is no evidence to show that the killer acted alone.

[15] Mr Tippett submitted that the danger is that the jury might be tempted to draw the conclusion, which cannot be drawn, that because the sample was not McLaughlin's, the accused must be the killer. He submitted that because the evidence is scientific forensic evidence, and because there is a widely held view in the community as to the accuracy of DNA evidence, the evidence is prejudicial in that there is an unacceptable danger that the jury might use the evidence wrongly. Further, the accused was placed in the difficulty that the results of the sample did not exclude him, and although the Crown did not seek to use the results as direct evidence to suggest that he was the perpetrator, it would be unfair and prejudicial to lead evidence showing that he was not excluded, particularly in the absence of any statistical evidence.

[16] Mr Wild QC, submitted that the difficulties to which Mr Tippett referred to could be overcome by appropriate directions from the trial judge.

[17] In my opinion, Mr Tippett's submissions are well founded. The DNA evidence is inherently weak and tenuous. Negative evidence is often potentially misleading unless there is other evidence to support it. The only supportive evidence is the position of the pocket, and, for the reasons discussed above, any conclusions drawn from that evidence are inherently weak. There is an unacceptable danger that it may be used improperly by the jury, notwithstanding careful directions by the trial judge. The evidence is likely to distract the jury from the important task of deciding whether or not McLaughlin is a witness of truth. This DNA evidence does not provide any significant support for McLaughlin in that regard for the reasons previously discussed in paragraph [14] above. The DNA evidence concerning the accused is clearly prejudicial and has no probative effect and ought also to be excluded as the samples, so far as concerns the results relating to the accused, are too weak to provide any reliable conclusions and are not supported by any statistical data. Accordingly, in the exercise of my discretion the whole of the DNA evidence is excluded.

[18] I direct that these reasons not be published beyond the parties and their legal advisers until after the jury's verdict is known.