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Supreme Court 18 December 2015

R v Adams

[2015] NSWSC 1960

Sexual offencesHomicide
CRIMINAL LAW EVIDENCE EVIDENCE DEFICIENCIES IN THE CHAIN OF POSSESSION

Citation: R v Adams [2015] NSWSC 1960
Court: Supreme Court of New South Wales
Date: 18 December 2015
Judge(s): Button J

Background

The accused was charged with the murder of a woman who disappeared in the early hours of 24 September 1983 in Sydney. The Crown alleged that the accused, then aged 31, had offered to take the deceased home from a wine bar in Crows Nest after she was found intoxicated in a toilet cubicle. She was last seen alive when she got into his car at around 4:00 AM. The accused was not charged until December 2013, some thirty years after the alleged offence.

Prior to trial, the Crown foreshadowed two categories of evidence to which the defence objected. First, tendency evidence consisting of accounts from several other women who alleged the accused had sexually assaulted them, including on occasions involving manual strangulation. Second, evidence from mitochondrial DNA analysis of a hair recovered by police in October 1983 from the boot of the accused's car.

The parties jointly applied for advance rulings on both objections under s 192A of the Evidence Act 1995 (NSW), before any jury was empanelled. Button J heard documentary and oral evidence over several days and delivered pre-trial rulings on the admissibility of each category.

  • Whether the Crown's foreshadowed tendency evidence satisfied the test in s 101 of the Evidence Act 1995 (NSW), specifically whether the probative value of the evidence substantially outweighed its prejudicial effect on the accused.
  • Whether evidence of mitochondrial DNA analysis of a hair found in the boot of the accused's car should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice, given alleged deficiencies in the chain of possession.

Decision

Tendency evidence (s 101)

Button J found that the similarity between the circumstances of the deceased's disappearance and the conduct alleged in the tendency incidents was sufficiently compelling to satisfy the test. The Crown relied on four incidents involving other women. In each, the accused was said to have inflicted serious violence, in some cases including manual strangulation, in the course of sexual assault. The judge accepted that such evidence carried a real risk of prejudice to the accused, but was affirmatively satisfied that the probative value substantially outweighed that prejudicial effect for most of the foreshadowed evidence.

The exception was one part of a particular incident. Evidence from one complainant (referred to by pseudonym as Ms Brown) relating to being detained and sexually assaulted inside a home was treated separately, and Button J expressed doubt that it passed the s 101 test. However, given the position taken by senior counsel at the hearing, this portion was not formally excluded at that stage, and the door was left open for the defence to re-agitate the point.

Mitochondrial DNA hair analysis (s 137)

The hair had been collected from the boot of the accused's Holden Commodore in October 1983 and passed through several hands, including the Department of Forensic Medicine and the Australian Atomic Energy Commission, before being subjected to mitochondrial DNA analysis many years later. The defence raised concerns about deficiencies in the chain of custody over the intervening decades.

Button J concluded that the evidence of the hair analysis did not engage s 137 at all. That provision permits exclusion where probative value is outweighed by the danger of unfair prejudice. The judge was not satisfied that the custody deficiencies rose to a level that would produce that result, and accordingly declined to exclude the hair analysis evidence.

Orders Made

  • The matter was listed in the arraignments list on 12 February 2016 at 10:00 AM.

(Note: The rulings themselves, while not formally styled as orders, were that the hair analysis evidence is admissible and that the foreshadowed tendency evidence is admissible.)

Key Takeaways

  • Under s 101 of the Evidence Act 1995 (NSW), tendency evidence in a criminal trial is admissible only where its probative value substantially outweighs its prejudicial effect. Button J confirmed this is a demanding test, but one that can be met where the alleged prior conduct is compellingly similar to the circumstances of the charged offence.
  • Striking similarity across multiple incidents, particularly where each involves a comparable combination of sexual assault and serious physical violence such as manual strangulation, can supply the substantial probative value required to clear the s 101 threshold.
  • Deficiencies in the chain of custody of physical exhibits do not automatically trigger exclusion under s 137. The question remains whether the probative value of the resulting analysis is outweighed by the danger of unfair prejudice, assessed in light of all relevant circumstances.
  • The advance ruling mechanism in s 192A of the Evidence Act 1995 (NSW) can be invoked by joint application of the parties to resolve significant evidentiary disputes well before a jury is empanelled, as occurred here across a multi-day hearing.
  • Not all tendency incidents in a notice need satisfy the s 101 test. Button J treated each of the four foreshadowed incidents separately, finding that most but not all cleared the admissibility threshold.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 70, 97, 101, 101(2), 137, 192A

Cases
- El-Haddad v R [2015] NSWCCA 10
- Jones v R [2014] NSWCCA 280
- McIntosh v R [2015] NSWCCA 184
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
- Sokolowskyj v R [2014] NSWCCA 55