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Court of Criminal Appeal 13 April 2017

DL v R

[2017] NSWCCA 57

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION OPERATION OF PROVISO MURDER EXAMINED ON DEFENCE CASE NO REPORT PROVIDED

Citation: DL v R [2017] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 13 April 2017
Judge(s): Leeming JA; Rothman J; Wilson J

Background

The appellant, DL, was convicted in 2008 of murdering a 15-year-old girl at Forresters Beach on the Central Coast of New South Wales in July 2005. DL was 16 at the time of the offence and was tried in the Supreme Court as an adult under the children's serious indictable offence regime. He was sentenced to 22 years' imprisonment with a non-parole period of 17 years.

A central element of the Crown's case at trial was blood pattern analysis evidence given by Detective Sergeant Gregory Moon. DL brought a conviction appeal approximately eight years after sentence, relying heavily on new expert evidence from Dr Mark Reynolds, a blood pattern analysis expert retained for the appeal. Both experts were cross-examined in the Court of Criminal Appeal.

The appeal raised allegations that Det Sgt Moon's trial evidence contained significant errors, that it was given in circumstances that denied DL procedural fairness, and that certain conduct of the Crown Prosecutor at trial was improper. The Crown conceded some deficiencies in Det Sgt Moon's evidence but argued the conviction should stand by operation of the proviso under s 6 of the Criminal Appeal Act 1912 (NSW).

  • Whether Det Sgt Moon's blood pattern analysis evidence at trial was admissible
  • Whether DL was denied procedural fairness because experiments conducted by Det Sgt Moon during trial were disclosed to the Crown but no report was provided to the defence
  • Whether fresh expert evidence on appeal established material error in the trial evidence
  • Whether, despite any procedural unfairness or evidentiary error, the proviso should be applied to dismiss the appeal on the basis that no substantial miscarriage of justice actually occurred
  • Whether the extreme delay in bringing the appeal (approximately eight years) justified refusing an extension of time

Decision

The Court accepted that Det Sgt Moon had conducted further experiments during the Easter weekend of the trial, informed the Crown of his findings and how he would respond to cross-examination on the defence case, but provided no formal report to the defence. The Court found this gave rise to at least a risk of a denial of procedural fairness. On the fresh evidence, Det Sgt Moon himself conceded during cross-examination in the appeal that aspects of his trial evidence were incorrect, including evidence based on directionality and volume of blood.

Despite these errors and the procedural concern, the Court turned to the proviso. It noted that the Crown case at trial, apart from the blood pattern evidence, established guilt beyond reasonable doubt. Crucially, both Det Sgt Moon and Dr Reynolds agreed on appeal that bloodstains on the right shoulder of DL's jacket consistent with the deceased's profile were "difficult to reconcile" with any scenario advanced by the defence. The Court found that even had the defence possessed Dr Reynolds' expertise in 2008, there would have been no basis to cross-examine on that aspect of Det Sgt Moon's evidence, and no different defence case would have emerged.

The Court concluded this was not a case where the manner in which the trial miscarried prevented an assessment of the strength of the Crown case. Having exhaustively assessed the blood pattern evidence on appeal, the Court was satisfied that the proviso applied. The appeal against conviction was dismissed. The Court granted an extension of time and leave in relation to certain grounds but refused leave on the remainder.

On the delay, the Court noted that the protracted timeline (partly attributable to Legal Aid refusal, changes in retained counsel, and the time required to commission expert evidence) was not entirely satisfactory but was sufficiently explained to permit the extension. The Court also observed that any retrial would have been significantly prejudiced by the lapse of time and unavailability of witnesses.

Orders Made

  • Extension of time granted and leave to appeal granted on grounds 1(a), 1(c), and 3
  • Leave to appeal refused on all other grounds
  • Appeal against conviction dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) can be applied even where procedural fairness has arguably been denied, provided the court is satisfied that no substantial miscarriage of justice actually occurred and can assess the Crown case strength from the record.
  • Where an expert conducts supplementary experiments during trial, informs the Crown of the results and how he would respond under cross-examination, but provides no report to the defence, this conduct carries at least a real risk of procedural unfairness sufficient to constitute a ground of appeal.
  • Fresh evidence on appeal that both confirms some trial errors and simultaneously reinforces the critical surviving finding of the original expert will not necessarily result in a conviction being quashed.
  • A substantial delay of approximately eight years in seeking leave to appeal does not automatically preclude an extension of time, but the strength of the proposed grounds and the prejudice a retrial would cause after such a delay are directly relevant to the exercise of the discretion.
  • In applying the proviso, the court considered not merely the evidence as presented at trial but the totality of the evidence now available, including fresh expert evidence adduced on appeal that ultimately strengthened rather than undermined the Crown case.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B–15F
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4

Cases:
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Lindsay v The Queen (2015) 155 CLR 272; [2015] HCA 16
- The Queen v Baden-Clay [2016] HCA 35; (2015) 90 ALJR 1013
- Castle v The Queen; Bucca v The Queen [2016] HCA 46; (2016) 91 ALJR 93
- Tongahai v R [2014] NSWCCA 81; (2014) 241 A Crim R 217
- R v Maybir (No 8) [2016] NSWSC 166