Citation: R v Scott Edward Regan [2014] NSWDC 118
Court: District Court of New South Wales
Date: 16 June 2014
Judge(s): Judge A Haesler SC DCJ
Background
In September 2009, two rural properties near Gowan, approximately 50 kilometres north-west of Bathurst, were broken into and items stolen, including a rifle, tools, and other belongings. DNA evidence recovered from a Corona beer bottle at one property became central to the Crown's case against the accused, a Bathurst businessman who had lived in the area since at least 2007.
In September 2012, the accused was arrested for separate property offences and consented to a buccal swab (a cheek swab used to collect DNA) at Bathurst Police Station. A DNA profile derived from that swab was matched to the profile obtained from the Corona bottle. However, the accused was subsequently acquitted of the 2012 offences, and the DNA sample from that procedure was later destroyed.
Following the acquittal, police obtained a fresh buccal swab from the accused in January 2013, this time in connection with the Gowan Road burglaries. The Crown's case at trial rested substantially on the DNA match between this second swab and the bottle profile, together with the accused's residential proximity to the crime scene. The accused pleaded not guilty to two counts of break, enter and steal and elected to be tried by judge alone.
Legal Issues
- Whether the 2012 buccal swab procedure was lawfully conducted under the Crimes (Forensic Procedures) Act 2000
- Whether evidence derived from an unlawful forensic procedure should be excluded under the court's discretion
- Whether, following any exclusion, the Crown could prove the accused's identity as a participant in the offences beyond reasonable doubt
Decision
Issue 1: Lawfulness of the 2012 forensic procedure
The court conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) and found that the 2012 buccal swab was obtained through a forensic procedure that did not comply with the Crimes (Forensic Procedures) Act 2000. The defect in the procedure rendered it unlawful, meaning the DNA profile derived from that swab was obtained illegally.
Issue 2: Exclusion of evidence flowing from the unlawful procedure
Although the January 2013 buccal swab was separately obtained with proper consent, the 2013 procedure was initiated because the unlawful 2012 DNA match had identified the accused as a suspect. The court found that the 2013 swab and its resulting profile were obtained "as a result of, or in connection with" the earlier unlawful procedure. Weighing the competing public interests, including the desirability of admitting reliable evidence against the need to protect the integrity of lawful forensic procedures, the court held it was not desirable to admit the evidence derived from the 2013 swab.
The court noted that even if section 138 of the Evidence Act 1995 (which provides a discretion to exclude improperly obtained evidence) had applied directly, it would have reached the same conclusion on the same reasoning.
Issue 3: Proof of identity without the excluded evidence
Without the DNA match evidence, the Crown could not establish that the accused was one of the persons involved in the burglaries. The court observed that the remaining circumstantial case, based on a partial DNA profile and the accused's general residential proximity, would not have satisfied it beyond reasonable doubt even if fully argued. The accused was accordingly entitled to verdicts of not guilty on all counts.
Orders Made
- All evidence obtained as a result of the unlawful 2012 forensic procedure was excluded
- Verdicts of not guilty entered on count 1 (break, enter and steal at the Brell premises, 22 September 2009)
- Verdicts of not guilty entered on count 2 and the alternative to count 2 (aggravated break, enter and steal, and break, enter and steal at the Sanders premises, 22 September 2009)
Key Takeaways
- The District Court held that evidence obtained as a downstream consequence of an unlawful forensic procedure under the Crimes (Forensic Procedures) Act 2000 can be excluded, even where the subsequent procedure from which the evidence directly came was itself lawfully conducted with the accused's consent.
- A causal connection between an initial unlawful forensic procedure and later evidence-gathering steps was sufficient to bring that later evidence within the scope of exclusionary consideration.
- Where critical identity evidence is excluded, the Crown's inability to prove a necessary element of the offence beyond reasonable doubt will ordinarily result in a verdict of not guilty, regardless of the strength of the remaining circumstantial case.
- The court's discretionary balancing exercise under the exclusion principle required weighing the public interest in admitting cogent evidence against the public interest in maintaining the integrity of lawfully mandated forensic procedures, with the latter prevailing on these facts.
- Destruction of the original unlawful DNA sample did not resolve the taint affecting subsequent steps taken in reliance on the information that sample had produced.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900.
- Crimes (Forensic Procedure) Act 2000
- Evidence Act 1995
- Law Enforcement (Power and Responsibilities) Act 2002
Cases
- Chief Constable Royal Ulster Constabulary [1997] AC 286
- Fawcett v Nimmo & Anor (2005) 156 A Crim R 431
- George v Rockett (1990) 170 CLR 104
- Hardy v Pinazza, SCNSW, unreported, 18.4.2005
- Hyder v Commonwealth [2012] NSWCA 336
- R v Karger (2002) 83 SASR 135
- Kerr v Commissioner of Police [2001] NSWSC 637.
- LK v The Commissioner of Police [2011] NSWSC 458.
- Maguire v Beaton (2005) 162 A Crim R 21
- Orban v Bayliss [2004] NSWSC 428.
- Walker v Bugden (2005) 155 A Crim R 416
- Williams v The Queen (1986) 161 CLR 278
- Wood v Christopherson [2013] NSWDC 233.