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Court of Criminal Appeal 13 February 2002

R. v. Sing

[2002] NSWCCA 20

Also reported as (2002) 54 NSWLR 31
Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION DNA EVIDENCE DUTIES OF PROSECUTOR EVIDENCE HEARSAY

Citation: R v Sing [2002] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 13 February 2002
Judge(s): Hodgson JA, Levine J, Howie J

Background

The appellant was convicted in the Newcastle District Court on four charges arising from a home invasion and series of sexual assaults against a woman at Bolton Point on 24 October 1996. The complainant was attacked by a man who used a knife, forced her to participate in aggravated sexual acts, tied her up, and stole property before leaving. The appellant was later identified as a suspect, and both he and the complainant provided blood samples for DNA analysis.

The prosecution's case rested heavily on DNA evidence. A forensic biologist gave evidence that DNA from a high vaginal swab matched the appellant's DNA profile, and that the profile would be expected to occur in approximately one in 1.2 million people. A second forensic biologist, using a different method, found no difference across nine DNA markers, placing the frequency at roughly one in 3,600 billion. The appellant was convicted on all four counts and sentenced to seven years imprisonment with a non-parole period of four and a half years.

On appeal, the appellant challenged the admissibility and handling of the DNA evidence, arguing that the persons who actually conducted the laboratory tests were never called to give evidence, leaving critical aspects of the prosecution case untested.

  • Whether the expert opinion evidence interpreting the DNA results was based on hearsay, given that the analysts who performed the underlying tests were not called as witnesses
  • Whether that evidence should have been excluded under sections 135 or 137 of the Evidence Act (provisions allowing exclusion where prejudicial effect outweighs probative value)
  • Whether section 60 of the Evidence Act (which affects the use of evidence relevant for a non-hearsay purpose) operated to render the underlying test results admissible for the truth of their contents
  • Whether the failure to call the persons who conducted the tests deprived the appellant of the opportunity to challenge a central element of the Crown's case
  • Whether the proviso (the principle that an appeal may be dismissed despite legal error if no substantial miscarriage of justice has occurred) should be applied
  • Whether, if the convictions were quashed, the appropriate remedy was acquittal or a new trial

Decision

The Court of Criminal Appeal found that the Crown had not called the laboratory analysts who actually performed the DNA tests. The interpreting forensic biologists gave opinion evidence based on the test results, but the underlying process of obtaining those results was not proven through direct testimony from those who conducted it. The Court held that this was an error: the appellant was deprived of the opportunity to cross-examine the persons responsible for the critical laboratory work, and the court itself was unable to assess whether the evidence was admissible or should have been excluded in the exercise of discretion.

Hodgson JA examined the operation of section 60 of the Evidence Act and concluded that it did not resolve the problem. The hearsay difficulty arose because the factual basis for the expert opinions, namely the actual test results, had not been properly established through admissible evidence from those who generated them. The failure was not merely technical; it went to the integrity of a very significant part of the prosecution case.

The Court declined to apply the proviso. There was other lay evidence capable of supporting a conviction, including evidence about the appellant's presence in the area that evening, but it was not so overwhelming as to make the DNA error irrelevant. The inconsistencies in some witness accounts meant the Court could not be satisfied that no substantial miscarriage of justice had occurred.

On the question of remedy, the Court ordered a new trial rather than an acquittal. The offences were extremely serious, the other evidence could support a conviction, and there had been no previous decision addressing this particular point about calling DNA analysts. The Court acknowledged that it was unfortunate the complainant would be required to give evidence again, but concluded that the public interest required a retrial.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Where DNA test results form a central part of the Crown's case, the persons who actually conducted those tests must ordinarily be called so that the accused has the opportunity to test that evidence before the jury.
  • Section 60 of the Evidence Act does not, of itself, cure a failure to call the analysts responsible for generating the underlying test results on which expert opinion is based.
  • The Crown's unexplained decision not to call necessary witnesses can deprive both the accused and the appellate court of the ability to assess the admissibility of significant evidence, raising the possibility of a miscarriage of justice.
  • In applying the proviso, it is not sufficient that some other evidence could support a conviction; where the impugned evidence was highly significant and the remaining evidence contained inconsistencies, the proviso will not be applied.
  • Absence of prior authority on a procedural question, combined with the seriousness of the offences and the existence of other supporting evidence, can weigh in favour of ordering a new trial rather than entering an acquittal.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 60, 135, 137

Cases:
- R v Kneebone [1999] NSWCA 279