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Court of Criminal Appeal 11 September 2009

Fleming v R

[2009] NSWCCA 233

Also reported as (2009) 197 A Crim R 282
Homicide
CRIMINAL LAW APPEAL ADMISSIBILITY OF DNA EVIDENCE LONGMAN DIRECTION UNREASONABLE VERDICT APPEAL DISMISSED

Citation: Fleming v R [2009] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 11 September 2009
Judge(s): McClellan CJ at CL; Grove J; RA Hulme J

Background

The appellant was convicted of the 1984 murder of a woman found strangled at a harbourside lookout in Neutral Bay. At the time of the murder, the appellant had been living approximately 700 metres from the scene. He was questioned by police but not charged, and the investigation went cold.

Two decades later, advances in DNA technology prompted NSW police to reopen the case. Forensic samples taken from the deceased in 1984 yielded a partial male DNA profile, which investigators sought to match. The appellant was by then living in rural Victoria, was not on any Australian DNA database, and there was no Victorian legislation permitting a court-authorised DNA sample to be taken in connection with an offence committed interstate.

To obtain a DNA sample, a Victorian police officer who knew the appellant visited him on an unrelated pretext, asking him to draw a sketch. Spittle that fell onto the paper was sent to NSW police and produced a DNA profile matching the sample from the deceased's vaginal swabs at a frequency of 1 in 52,000. Following arrest and a subsequent buccal swab obtained through proper process, the match probability increased to 1 in 8.6 billion. The appellant was convicted at trial before Studdert J in the Supreme Court and appealed on five grounds.

  • Whether the covertly obtained DNA evidence from the sketch paper was improperly obtained and should have been excluded under section 138 of the Evidence Act 1995
  • Whether the trial judge erred by failing to warn the jury about lies told by the accused in the context of alibi evidence
  • Whether the trial judge's direction to the jury on how to approach DNA profiling evidence was erroneous
  • Whether a Longman or Crampton-style direction (a warning about the dangers of relying on certain evidence in a delayed prosecution) should have been given
  • Whether the verdict was unreasonable or could not be supported by the evidence

Decision

Ground 1 (Admissibility of DNA evidence): The Court found no error in the trial judge's decision to admit the covertly collected DNA. Section 138 of the Evidence Act 1995 requires a court to weigh the desirability of admitting the evidence against the undesirability of admitting evidence obtained improperly. The Court accepted that the method of collection was not unlawful. The trial judge had weighed the competing considerations and concluded that admissibility was appropriate, and the Court of Criminal Appeal found no error in that exercise of discretion.

Grounds 2 and 3 (Jury directions on lies and DNA evidence): The Court found no error in the trial judge's handling of the jury direction concerning the appellant's apparent lack of truthfulness and alibi evidence. Equally, no error was established in the direction given regarding how to approach the DNA profiling evidence. The relevant principles governing jury directions in this context had been properly applied.

Ground 4 (Longman/Crampton direction): The Court rejected the submission that a Longman-style direction was required. Such a direction is designed to warn a jury about the forensic disadvantage arising from delay in a prosecution, particularly where the accused cannot adequately test evidence. The Court found the circumstances did not warrant such a direction here.

Ground 5 (Unreasonable verdict): The Court was satisfied the verdict was not unreasonable. Beyond the DNA evidence, the circumstantial case was compelling: the appellant lived nearby, giving him knowledge of the locality; a witness placed a person in the park at the relevant time and did not exclude the appellant; and fibres found on and near the deceased were consistent with crepe bandages the appellant wore on his knee. There was no evidence of contamination of the original swabs. No reasonable inference consistent with innocence remained open on the totality of the evidence.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that covertly obtained DNA evidence is not automatically excluded under section 138 of the Evidence Act 1995. The critical question is whether the desirability of admitting the evidence outweighs the undesirability of the manner in which it was obtained, assessed on the specific facts.
  • A Longman-style direction is not required in every case involving historic events. The direction is reserved for circumstances where delay has caused genuine forensic disadvantage to the accused in meeting the prosecution case.
  • Where an appellant challenges the admission of evidence under section 138, the appellate court applies a discretionary review standard: error must be established in the trial judge's weighing exercise, not merely a different outcome preferred.
  • Circumstantial evidence accompanying DNA evidence can significantly strengthen a Crown case. Here, proximity, opportunity, a witness account, and fibre evidence combined with DNA to leave no reasonable inference of innocence open.
  • In dismissing the appeal, the Court reaffirmed that an unreasonable verdict ground requires the appellate court to be satisfied that a miscarriage of justice has occurred, not simply that the evidence was open to conflicting interpretations.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), particularly section 138
- Crimes (Forensic Procedures) Act 2000 (NSW)

Cases:
- Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- Shepherd v R (1990) 170 CLR 573
- Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
- Papakosmas v The Queen (1999) 196 CLR 297
- Swaffield and Pavic v The Queen (1998) 192 CLR 159
- Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clark v The Queen (2007) 231 CLR 396
- Ridgway v The Queen (1984) 184 CLR 19
- House v The King (1936) 55 CLR 499
- Robinson v Woolworths Limited [2005] NSWCCA 426; 64 NSWLR 612
- R v Abusafiah (1991) 24 NSWLR 531
- R v Coulstock (1998) 99 A Crim R 143
- R v Camilleri [2007] NSWCCA 36; 169 A Crim R 197
- R v Slattery [2002] NSWCCA 367
- Dodds v R (2009) NSWCCA 78
- Robinson v R [2006] NSWCCA 192