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Supreme Court 14 October 2014

Rice v R (No 1)

[2014] NSWSC 1400

HomicideFirearms & weapons
EVIDENCE

Citation: Rice v R (No 1) [2014] NSWSC 1400
Court: Supreme Court of New South Wales
Date: 14 October 2014
Judge: Bellew J

Background

The accused faced trial on an indictment alleging he conspired to murder a named individual. The Crown's case, in broad terms, was that the accused assisted in organising the theft of vehicles used to surveil the intended victim, stored firearms, and participated in efforts to locate and kill the target over a period of weeks in late 2007.

A key piece of Crown evidence was a cigarette butt recovered from a stolen Holden station wagon allegedly used by the accused in the course of the conspiracy. Scientific analysis of the butt revealed DNA matching the accused. Following that analysis, the cigarette butt was destroyed. The accused had therefore lost any opportunity to conduct independent DNA testing of his own.

The accused applied by notice of motion to have the DNA evidence excluded before the trial commenced. The application raised concerns about the destruction of the exhibit, the circumstances of its seizure, and the failure of police to seize and test other items found in the same vehicle.

  • Whether the DNA evidence should be excluded under the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused, arising from the destruction of the cigarette butt.
  • Whether the evidence should be excluded having regard to the circumstances in which the butt was seized, including the failure to collect other nearby items from the vehicle.
  • Whether, if the evidence were admitted, the jury should receive a direction about the disadvantage caused to the accused by the destruction of the exhibit.

Decision

Bellew J refused to exclude the DNA evidence. His Honour accepted that the destruction of the cigarette butt deprived the accused of an opportunity to independently test the item, but found that this was an opportunity, not a certainty of a different result. The loss of that opportunity did not, in the circumstances, cause the probative value of the evidence to be outweighed by the danger of unfair prejudice under the Evidence Act 1995.

On the seizure circumstances and the failure to collect other items from the vehicle, Bellew J found that any suggestion of contamination was necessarily speculative. His Honour noted that these matters could be explored through cross-examination of the Crown's forensic witnesses, and that counsel remained free to address the jury on those issues. This meant the evidence would not, as the accused submitted, assume an "air of infallibility" before the jury.

His Honour also declined to exercise the broader discretion under s 135 of the Evidence Act 1995 to exclude the evidence. The probative value of the DNA evidence was assessed as significant, and was not found to be substantially outweighed by any danger of unfair prejudice.

Bellew J indicated he would hear the parties further on the form of an appropriate jury direction dealing with the disadvantage suffered by the accused as a result of the destruction of the evidence, noting the Court of Criminal Appeal's earlier guidance on that question in R v Slattery.

Orders Made

  • The notice of motion was dismissed.
  • The judgment was suppressed until the conclusion of the accused's trial.

Key Takeaways

  • The destruction of a physical exhibit after scientific analysis does not automatically warrant exclusion of the resulting DNA evidence; what is lost is an opportunity for independent testing, not a guaranteed different outcome.
  • Where alleged contamination or mishandling of an exhibit is speculative, a court may decline to exclude the evidence, leaving those matters to be tested in cross-examination and addressed in jury submissions.
  • Under s 137 and s 135 of the Evidence Act 1995, significant probative value can outweigh the prejudice arising from an accused's inability to independently test a destroyed exhibit, particularly where the prejudice does not extend to any risk that the jury will misuse the evidence.
  • Even where exclusion is refused, a trial judge may still provide the jury with a direction about the disadvantage caused to the accused by the loss of the exhibit, consistent with the approach confirmed in R v Slattery [2002] NSWCCA 367.
  • Failure by police to seize all potentially relevant items at a crime scene does not, of itself, render DNA evidence from a collected item unfairly prejudicial, provided the gaps in collection can be explored at trial.

Legislation and Cases Referenced

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

Cases
- Ainsworth v Burden [2005] NSWCA 174
- El Bayeh v The Queen [2011] VSCA 44; (2011) 208 A Crim R 541
- R v Helmling (NSWCCA, 11 November 1993, unreported)
- R v Lobban [2000] SASC 48
- R v Slattery [2002] NSWCCA 367
- R v Yates [2002] NSWCCA 520