IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2019 0245

THE QUEEN	Crown	
		
v 		
		
VINCENZO CRUPI	Accused	

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JUDGE:	Beale J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 & 19 May 2020 and 14 July 2020	
DATE OF RULING:	7 October 2020	
CASE MAY BE CITED AS:	R v Crupi (Ruling No 2)	
MEDIUM NEUTRAL CITATION:	[2020] VSC 656	

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CRIMINAL LAW — Murder —Whether particles gunshot residue — Whether opinion of expert relevant — Whether probative value outweighed by danger of unfair prejudice — Evidence excluded as irrelevant — DPP v Paulino [2017] 54 VR 109; [2017] VSCA 38 — DPP v Paulino (Ruling No 2) [2017] VSC 344 — Ramaros (a pseudonym) v R [2018] VSCA 143 — R v Smart [2008] VSC 79 — Vyater v R [2020] VSCA 32 — DPP v Wise [2016] VSCA 173 — R v Wannouch [2019] VSCA 97 — Criminal Procedure Act 2009 (Vic), s 198B — Evidence Act 2008 (Vic), ss 55, 56, 137.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr M Gibson QC with Mr J McWilliams	Office of Public Prosecutions	
			
For the Accused	Mr D Dann QC with Mr L Richter	Stary Norton Halphen 	

HIS HONOUR:
BACKGROUND 
1	This is a ruling on the admissibility of gunshot residue (GSR) evidence. 
2	All part and section references are to the Evidence Act 2008, unless otherwise indicated. 
3	Vincenzo Crupi (D) is charged with the murder of Joseph Acquaro (V).
4	V was fatally shot at close range near his Brunswick East restaurant, the Gelo Bar, shortly before 1:00am on 15 March 2016. Based on CCTV footage relied on by the prosecution (P), it would be open to the jury to find that the shooter was wearing a peaked cap at the time of the shooting. 
5	P’s written summary of opening says this, relevantly:
[54] On Friday, 18 March 2016 Mr Crupi was arrested and interviewed by police...
…
[57] Mr Crupi’s ute was parked outside his house. Inside, police located a dark peaked cap…and two sections of white disposable glove. A DNA analysis of the peaked cap and the white disposable glove determined that the DNA profile obtained was 100 billion times more likely if Mr Crupi was a contributor to the profile than any other person. A particle highly characteristic of gunshot residue and a particle consistent with gunshot residue were detected in a sample taken from the peak of the cap.
6	There are photographs of the cap scrunched up in the ute. They were tendered at a hearing pursuant to s 198B of the Criminal Procedure Act 2009 on 18 May 2020 at which a GSR expert, Kylie Beeson, gave evidence. The cap looks like a baseball cap but it is impossible to be certain as the cap is scrunched up. However, in Kylie Beeson’s notes there is a photo of the cap which confirms it is a baseball cap. It also has a fairly large white Powercap logo on the front of the cap. 
CCTV footage
7	In relation to the CCTV compilation disc relied on by P, clips 37 to 94 are from the night of the murder. On that night, the CCTV footage shows a male walking back and forth in Lygon St, which is comparatively well lit, wearing a tight fitting dark blue baseball cap, a brown jacket (possibly leather) and dark blue jeans. No Powercap logo is discernible on the front of the dark blue baseball cap in the Lygon St footage, even though some of that footage is quite close up. 
8	The CCTV footage also shows a laneway running parallel to Lygon St between St Phillip St and Barkly St. A male (or males) is captured on CCTV footage in the laneway. His cap and jeans appear pale in colour but, until clip 88, his jacket remains dark in colour. From clip 88 onwards, the male appears to be wearing a different jacket because it looks pale in colour. 
9	From clip 81 to 94, which are all in the laneway, the style of cap appears to be different. It looks more like a loose fitting legionnaire’s cap covering part of the sides and back of the neck as well as the head. This is the cap that the male is wearing when running along the laneway in clip 93 and 94, possibly holding a gun in his left hand. I note that in their original submissions, neither P or D referred to the apparent change in the style of the cap from clip 81 onwards. I drew this omission to the attention of the parties on 17 September 2020 and, at my request, they filed further written submissions regarding its significance. 
10	No Powercap logo is discernible on the front of the cap or caps worn in the laneway footage either, although, in a still taken from clip 83 and supplied by P in its supplementary submissions, the front of the cap where a logo might be located appears brighter than the rest of the cap.
Kylie Beeson’s Evidence 
11	A GSR expert, Kylie Beeson, produced a Certificate of Expert Evidence dated 12 October 2016 in which she said this, relevantly:
On the 15th of March 2016, I attended St. Phillips St, East Brunswick where I was requested to sample from the back and palms of the hands and wound area of a deceased male identified as Joseph ACQUARO.
These samples (Item 11) were subsequently analysed for the purpose of GSR analysis and the following results were obtained:
i. 	Right Back — Two particles highly characteristic of GSR and four particles consistent with GSR.
ii. 	Right Palm — Six particles highly characteristic of GSR and five particles consistent with GSR.
iii. 	Left Back — Two particles highly characteristic of GSR and three particles consistent with GSR.
iv. 	Left Palm — Twenty particles highly characteristic of GSR and seven particles consistent with GSR.
Particles commonly associated with GSR were also detected on these samples.
v. 	Wound — Numerous lead particles classified as commonly associated with GSR were detected.
In my opinion, the presence of multiple particles highly characteristic of GSR as well as other particles consistent and commonly associated with GSR is sufficient to provide unequivocal identification of these particles as GSR. Furthermore, the high number of particles classified as GSR-related on both hands provides strong support for the contention that the deceased hands, particularly the left palm, were in close proximity to the muzzle of a firearm when it was discharged.
…
On the 18th of March 2016, I received five sealed paper bags bearing the labels:
EXH 1 Vehicle RDS057: 1 x BLK 'POWERCAP' CAP (D553)
…
EXH 5 Vehicle RDS057: 1 x WHT DISPOSABLE GLOVE
…
Item 2: Black 'POWERCAP' Cap
'EXH I Vehicle RDS057: 1 x BLK 'POWERCAP' CAP' - This contained a dark blue coloured cap with a white logo on the front. The top and the peak areas of the cap were sampled and analysed for the presence of gunshot residue.
A particle highly characteristic of GSR and a particle consistent with GSR were detected on the sample taken from the peak of the cap.
It is my opinion that in this case, due to the low number of particles detected, it is not possible to determine the how or when these particles were deposited onto the peak of the cap. 
…
Item 6: white disposable glove
'EXH 5 Vehicle RDS057: I x WHT DISPOSABLE GLOVE' - This contained the finger section of a white disposable type glove. This item was sampled and analysed for the presence of gunshot residue.
A particle consistent with GSR containing lead and antimony was detected.
It is m-y opinion that a limited amount of significance can be attributed to the single particle detected on the sample taken from the white disposable glove (Item 6) as alternative sources cannot be excluded.
12	On 13 November 2019, Beeson was not available to give evidence at the committal hearing. Her colleague Peter Ross adopted her statement and gave evidence in her place. 
13	On 18 May 2020, Beeson gave evidence at a hearing pursuant to s 198B of the Criminal Procedure Act 2009 (Vic). Five photos of the cap scrunched up in D’s ute were tendered and became Exhibit 1 in that hearing. 
14	Under cross-examination, Beeson said that the cap was actually a dark blue cap, not a black cap as described on the label. Because there were only two particles found on the cap’s peak (one highly characteristic of and one consistent with GSR), she could not be certain that the particles were GSR and she could not rule out transference as the means by which the two particles were deposited on the cap. But she opined that it was ‘highly likely’ that the particles originated from the discharge of a firearm.
SUBMISSIONS 
D’s submissions
15	D made written and oral submissions regarding the admissibility of the GSR evidence. 
Pt 3.1 
16	D submitted it was not open to a jury to conclude that the shooter was wearing a dark peaked cap and consequently the evidence about possible GSR particles on a dark peaked cap found in D’s possession four days after the shooting was irrelevant (s 55). D submitted that the CCTV footage taken in the laneway shows the alleged shooter wearing what appears to be a pale cap. D submitted that whilst there is CCTV footage of a male in Lygon St wearing a dark cap, one could not reasonably find that the capped male in Lygon St and the capped male in the laneway are the same person. There is no expert evidence that, depending on the lighting, CCTV footage makes a dark cap appear pale or vice versa. Further, the cap worn by the male in the laneway does not appear to have a logo on it, whereas the cap examined by Beeson had a Powercap logo on it.
17	In supplementary written submissions, D submitted that the style of cap worn in clips 81 to 94 is different to the style of cap found in D’s ute. The difference in appearance is not attributable to the male in clips 81 to 94 wearing the cap over the top of another head covering, as P suggests. A jury would be engaging in speculation if it accounted for the different appearance of the male’s cap in that way. Further, no Powercap logo is apparent on the cap or caps worn in the CCTV footage. A still from clip 83 relied on by P may show a brighter area on the front of cap, but if one were to accept P’s submissions about the impact of the poor lighting in the laneway on the apparent colour of objects (ie making dark coloured objects appear pale), the white Powercap logo should look dark in clip 83, not bright. In summary, D submitted that Beeson’s evidence is irrelevant because a jury could not find that the cap worn by the shooter was the same as or similar to the cap found in D’s ute. 
18	D submitted, in the alternative, that Beeson’s expert evidence fails the test of relevance (s 55) because she did not opine that the particles on the dark cap were GSR. Given the limited number of particles, Beeson was prepared to say no more than that one particle was highly characteristic of GSR and one particle was consistent with GSR. D drew an analogy with cases concerning apparent blood staining; such evidence is considered irrelevant unless the apparent blood staining is confirmed to be blood. D submitted that it was no answer for P to submit that GSR experts never express an opinion that particles are actually GSR; D noted that Beeson expressed that very opinion in relation to the particles found on V’s hands. 
19	Whilst accepting that the relevance of a piece of evidence is not to be assessed in isolation from other evidence, D relied on what Priest J said in DPP v Paulino:
As a matter of common experience, often a piece of circumstantial evidence will have little probative value on its own, but, when considered with other pieces of circumstantial evidence (themselves perhaps flimsy if viewed in isolation), will support a compelling inference of fact. It needs to be borne steadily in mind, however, that before a strand of circumstantial evidence may be considered collectively with other strands, it must have some capacity rationally to affect the assessment of a fact in issue. If a strand does not have that capacity, it is irrelevant. And, as a matter of logic, if a strand of evidence is incapable of going in proof of a fact in issue, it does not become clothed in a mantle of relevance simply because it is conjoined to other strands of irrelevant evidence.
20	This analysis was adopted by the Court of Appeal in R v Wannouch.
21	D submitted that Beeson’s evidence regarding the particles on the cap lacked the capacity Priest J spoke of in Paulino. 
22	D submitted that P would necessarily be inviting the jury to engage in circular reasoning: only if the jury found that the particles on the dark cap were GSR could they use them to find that D was the shooter but before the jury could find that the particles on the dark cap were GSR, they would have to find that D was the shooter. 
23	Further, Beeson was not prepared to exclude transference as an explanation for the presence of the particles on the cap. Even if the particles were GSR, D submitted there was no rational basis for finding that the particles were deposited on the cap in the course of a shooting. 
24	D also submitted that if the particle consistent with GSR found on the white glove was irrelevant, as P conceded, the particles on the cap must also be irrelevant. Just as with the glove particle, Beeson was not prepared to say the particles were GSR or to exclude transference. In both cases, D submitted there is a paucity of information, rendering the evidence of the particles irrelevant (s 55) and, therefore, inadmissible (s 56). 
Pt 3.3 
25	D did not rely on Pt 3.3. It was not disputed that Beeson is an expert in GSR. 
Pt 3.11
26	D submitted that there is a risk that the jury will overvalue the evidence.
27	D submitted that this danger of unfair prejudice cannot be eliminated by directions and outweighs the modest probative value of the evidence, thus requiring the evidence to be excluded (s 137). 
P’s submissions
28	P made written and oral submissions.
Pt 3.1 
29	In written submissions, P said this, relevantly: 
5. The evidence of Ms Beeson is relevant. The evidence of the location of material highly consistent with gunshot residue could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding — that is the identity of the person who shot and killed the deceased. 
6. The probative value, the weight it has, must be assessed in the context of an entire circumstantial case. In the context of the entirety of the circumstantial case the evidence has some weight, and it capable of rationally weighing upon the question of identity of the offender. 
30	P submitted that the shooter’s cap is plainly a dark cap. That can be seen on the CCTV footage taken in Lygon St, which was relatively well lit, whereas the laneway was not well lit, making the dark cap look pale on the CCTV footage. A reasonable jury viewing all the CCTV footage could conclude that the capped male in Lygon St and the capped male in the laneway were one and the same male. 
31	Just as DNA experts do not say that DNA is a particular person’s DNA, P submitted that GSR experts do not as a general rule opine that particles are GSR. Rather they say that a particle is “highly characteristic of” or “consistent with” or “commonly associated with” GSR. Consequently, Beeson’s failure to opine that the particles on the dark cap were GSR is not a deficiency in her evidence. Her preparedness to opine that the particles on V’s hands were GSR was due to the fact that it was not in dispute that V was shot in the stomach; it was the surrounding circumstances that enabled her to opine that the particles on V’s hands were GSR. 
32	P relied on Vyater v R, a DNA case. The likelihood ratio for a DNA sample from a glove was only 26: that is, it was only 26 times more likely that Vyater was the source of the DNA than a person selected at random from the population. Yet the evidence passed the test of relevance. 
33	As for D’s reliance on cases about apparent blood staining, P submitted that experts in that field can say whether a stain is actually blood, so the analogy is inapt.
34	P submitted that no circular reasoning was involved. The presence of the two particles on the cap would assist the jury in determining whether D was the shooter. They did not need to first find that D was the shooter before making use of the evidence about the particles. 
35	As for transference, P submitted that this case may be distinguished from cases like Paulino and Wise, which concerned the possibility of innocent transference of DNA. In those cases, there was evidence supporting the possibility of transference. Here there is nothing more than Beeson’s concession that she could not say how the particles were deposited on the dark cap. 
36	As for the difference in the appearance of the cap in clips 81 to 94, P submitted in its supplementary written submissions that a jury could find that it was still the same cap as in the earlier clips. P submitted that a jury could find it appeared different in clips 81 to 94 merely because it was being worn over the top of some other kind of head covering. As for whether a jury could find that the cap worn by the shooter was the same kind of cap found in D’s ute, P also relied on a still from clip 83, which appears to show a lighter portion on the front of the cap, consistent with the logo on the cap found in D’s ute. 
Pt 3.11 
37	P submitted that there is no risk of the evidence being overvalued: cross-examination and appropriate directions will eliminate any such risk. The evidence is not complex. The jury will understand its limitations. The probative value of the evidence is not outweighed by the danger of unfair prejudice. 
ANALYSIS
Pt 3.1
38	P’s case is that the subject of clips 37 to 94, shown in Lygon St and in a nearby laneway, is one and the same person and that in each clip he is wearing the same cap. Further, it is P’s case that four days after the shooting a cap of the same kind was found in D’s ute and that it had on it two particles — one highly characteristic of and one consistent with GSR. 
39	Having repeatedly viewed CCTV clips 37 to 94 for the night of the murder, I can accept that a dark cap may look pale on CCTV footage but, for the reasons given below, I do not think it is open to a jury acting reasonably to find that the shooter was wearing the same kind of cap as the one found in D’s ute on 18 March 2016. 
40	The first significant obstacle to the jury accepting P’s case in relation to the cap is the prominent Powercap logo on D’s cap or, more precisely, the absence of evidence of such a logo on the cap or caps worn by the subject(s) of clips 37 to 94. As noted above, the footage in Lygon St is comparatively well lit and in several of the Lygon St clips one gets a close up of the cap, but there is no logo to be seen, let alone a Powercap logo. The best P could do was to refer to an area of brightness on the front of the subject’s cap in a still from clip 83 from the laneway. Even if that area of brightness is a logo, which is debateable, the area of brightness does not appear to correspond to the Powercap logo on D’s cap — it looks too large and rectangular. 
41	The second significant obstacle to the jury accepting P’s case in relation to the cap is the different appearance of the cap worn by the subject in clips 81 to 94. It looks more like a legionnaire’s cap than a baseball cap. P concedes that the appearance of the cap in clips 81 to 94 is different to its appearance in earlier clips but, relying on a still from clip 84, P submits that the cap only appears different because it is being worn over some other type of head covering. To my mind, the imagery is too unclear to say that P’s hypothesis rises above conjecture. 
42	It is not merely a matter of competing hypotheses which go to weight rather than admissibility. For Kylie Beeson’s GSR evidence to be relevant, a comparison of the images of the cap worn by the shooter and the Powercap cap found in D’s ute on 18 March 2016 must be capable of providing a rational basis for concluding, at the very least, that they are the same kind of cap. The quality of the imagery is, in my opinion, insufficient to justify that conclusion. 
43	Accordingly, I find Kylie Beeson’s GSR evidence to be irrelevant (s 55) and therefore inadmissible (s 56).
44	As for the other bases on which the impugned evidence was said by D to be irrelevant, I need only say that I prefer P’s submissions. 
Pt 3.11 
45	If I am wrong about the evidence being irrelevant, I find that the probative value of the impugned evidence is not outweighed by the danger of unfair prejudice. Any risk of the evidence being overvalued by the jury could be cured by appropriate directions.