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District Court 2 May 2007

R v DIONNET

[2007] NSWDC 94

Sexual offences
CRIMINAL LAW

Citation: R v Dionnet [2007] NSWDC 94
Court: District Court of New South Wales
Date: 2 May 2007
Judge(s): Berman SC DCJ

Background

The accused faced a criminal prosecution for serious sexual assault. The Crown's case relied partly on DNA evidence and partly on identification by the complainant, who said she recognised the accused in her room using light from a gap in the curtains and from her mobile phone.

Police had taken a buccal swab (a mouth swab used to collect DNA) from the accused but failed to comply with the statutory requirement to preserve one swab for the accused's own use. Instead, both swabs were placed in a single envelope and sent for analysis together.

The defence objected to the admissibility of the DNA evidence on the basis of this breach. To accommodate the scheduling of an expert witness available only at the start of trial, the DNA evidence had been admitted provisionally, with the admissibility question reserved for later argument. The Crown acknowledged that if the court ruled against it, the jury would need to be discharged.

  • Whether the police had breached section 58 of the Crimes (Forensic Procedures) Act by placing both buccal swabs in one envelope rather than preserving one for the accused
  • Whether, under section 82(4)(b) of that Act, the desirability of admitting the DNA evidence outweighed the undesirability of admitting it, having regard to the matters in section 82(5)

Decision

The breach of section 58 was not in dispute. The police officer had inadvertently placed both swabs into a single envelope for analysis rather than retaining one for the accused as the Act required. The court accepted the failure was reckless rather than deliberate.

The court then applied the balancing test in section 82(4)(b). A central consideration was that the breach had not, in fact, prevented the accused from independently analysing his own DNA. Unlike a case where police consume a one-off forensic sample from a crime scene, here the accused's DNA remained accessible to him: he could provide a fresh buccal swab or other cellular sample to his own analyst at any time. The defence acknowledged this point.

The DNA evidence was found to be highly probative. It was said to confirm the complainant's identification of the accused and, given expert evidence that no reasonable alternative explanation existed for the accused's DNA appearing on the complainant's singlet, the evidence was capable of significantly advancing the Crown case.

Weighing all section 82(5) factors, including the inadvertent nature of the breach, the seriousness of the charges, the grave consequences of conviction, the probative value of the evidence, and the minimal impact on the accused's ability to defend himself, the court was satisfied the desirability of admitting the evidence outweighed the undesirability. The evidence was not excluded.

Orders Made

The DNA evidence was admitted and remained before the jury.

Key Takeaways

  • The District Court confirmed that the section 82(4)(b) balancing exercise under the Crimes (Forensic Procedures) Act requires a court to weigh the desirability of admitting improperly obtained forensic evidence against the undesirability of doing so, considering the specific factors in section 82(5).
  • A critical distinction exists between a breach that permanently denies an accused access to forensic material and one that does not. Where the accused retains the ability to independently obtain equivalent material for re-analysis, the prejudice from non-compliance is substantially reduced.
  • Inadvertent rather than deliberate non-compliance with statutory forensic procedures is a relevant factor in the section 82 balancing exercise, though it does not automatically result in admission.
  • Admitting the evidence was found not to seriously undermine the protections the Act affords to suspects, largely because the accused's DNA remained available to him for independent testing.
  • The high probative value of the DNA evidence, combined with the serious nature of the charges and the limited practical impact of the breach on the defence, together drove the outcome in favour of admission.

Legislation and Cases Referenced

Legislation:
- Crimes (Forensic Procedures) Act (NSW), ss 58, 82(4)(b), 82(5), 101

Cases:
- R v Jason Michael Kane [2004] NSWCCA 78