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Supreme Court 26 November 2021

R v Dukagjini

[2021] NSWSC 1528

Homicide

Citation: R v Dukagjini [2021] NSWSC 1528
Court: Supreme Court of New South Wales
Date: 26 November 2021
Judge: Fagan J

Background

The accused was charged with the murder of Tatiana Sokoloff, a 56-year-old lecturer in Italian at the University of Sydney, who was killed at her Haberfield home on 6 September 1986. The Crown alleged he broke into her dwelling to steal from it, encountered her in a sunroom, and killed her by strangulation with an electrical cord cut from an iron and blunt force head injuries inflicted with a length of timber found at the scene. The case remained unsolved for over three decades.

The original 1986 investigation was extensive but failed to identify a perpetrator. Forensic items from the scene were retained, and when DNA technology became available, blood samples from the deceased's pyjama pants, from the piece of timber alleged to be a murder weapon, and from a patio swab were tested in 2019. All three yielded DNA profiles matching the accused.

The Crown's case rested entirely on circumstantial evidence. The accused consented to a judge-alone trial, and the Crown also relied on tendency evidence of prior break-and-enter offences. The accused lived approximately three kilometres from the deceased's home at the time of the murder.

  • Whether the accused was the person who killed Tatiana Sokoloff, the sole genuinely contested element of the offence
  • Whether the DNA evidence had sufficient forensic integrity, given concerns about storage conditions and repackaging of exhibits over many years
  • How the DNA matching evidence and tendency evidence should be weighed in combination as circumstantial evidence
  • Whether the accused suffered significant forensic disadvantage by reason of the delay between the offence and prosecution, engaging the warning provisions under s 165B of the Evidence Act 1995 (NSW)

Decision

Fagan J applied the standard framework for wholly circumstantial cases, drawing on Shepherd v R (1990) 170 CLR 573. His Honour first assessed whether each individual circumstance had been established to the required standard, then considered whether the circumstances taken together rationally supported the contested inferences, and finally determined whether guilt was the only reasonable conclusion open on those circumstances.

The defence challenged the integrity of the DNA exhibits, noting that three items of the deceased's clothing had been stored together in a single bag for many years, raising a concern about transference. The defence also noted that exhibits were repackaged in 2004. Fagan J considered these challenges but ultimately accepted the Crown's forensic evidence as reliable after examining the expert testimony and the circumstances of storage and repackaging.

The defence did not oppose the tendency evidence of break-and-enter offences. Counsel for the accused accepted that it had significant probative value, but sought to use it to suggest an innocent explanation for the DNA presence: that contact could have occurred without the accused being the killer. Fagan J rejected this reasoning and found that, assessed cumulatively with the DNA evidence and the accused's proximity to and presence in Australia at the time, the only reasonable inference was that the accused was present during the murder and was the assailant.

On the delay warning question under s 165B of the Evidence Act, Fagan J found no basis to conclude the accused had suffered a significant forensic disadvantage. Applying Binns v R [2017] NSWCCA 280, his Honour noted that where physical exhibits have been lost or are unavailable, there is no way of knowing whether further testing would have been inculpatory or exculpatory. Similarly, the deaths of some original witnesses did not establish identifiable forensic disadvantage in the defence of this case.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Fagan J convicted the accused of murder, finding that DNA evidence recovered from three separate items at the 1986 crime scene, combined with tendency evidence and proximity evidence, left no reasonable hypothesis consistent with innocence.
  • In wholly circumstantial cases, the court is required to proceed in three stages: establishing each circumstance to the required standard; assessing whether those circumstances rationally support the contested inferences; and determining whether guilt is the only reasonable conclusion open.
  • Where a defendant accepts tendency evidence and seeks to use it affirmatively as an innocent explanation for incriminating forensic material, the court is not precluded from treating that same tendency evidence as part of a cumulative body of inculpatory proof.
  • Under s 165B of the Evidence Act 1995 (NSW), a significant forensic disadvantage caused by delay must be positively established before the provision is engaged. The mere loss of physical exhibits does not satisfy this threshold, because it cannot be known whether further testing of those items would have assisted or harmed the defence.
  • Applying Binns v R, DNA evidence will rarely in itself constitute the kind of absent evidence that triggers the s 165B disadvantage warning, given the inherent uncertainty about whether any such evidence would be favourable to the defendant.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), particularly s 165B (delay warning)

Cases:
- Shepherd v R (1990) 170 CLR 573; [1990] HCA 56
- Binns v R [2017] NSWCCA 280
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Chamberlain v The Queen (No. 2) (1984) 153 CLR 521; [1984] HCA 7 (referenced in the judgment's discussion of circumstantial evidence principles)