Citation: [2018] NSWSC 1287
Court: Supreme Court of New South Wales
Date: 17 August 2018
Judge(s): Garling J
Background
This ruling arose during an ongoing criminal trial in which the accused faced charges on an indictment including counts relating to what was described as "Event 7," the bombing of a Kingdom Hall. The Crown sought to tender a forensic certificate dated 15 August 1985, signed by a forensic biologist from the Division of Forensic Medicine (DFM) at Glebe, recording the results of testing on apparent bloodstains found on a piece of cardboard and a piece of carpet taken from the explosion site.
The accused objected to the certificate's admission. The Crown's purpose in tendering the certificate was to assist a current witness, Mr Sheather (who had originally collected the items from the scene as a Detective Sergeant), to identify the cardboard and carpet items he had recently re-inspected, along with photographs of those items, so they could be admitted as exhibits.
The central procedural question was whether the certificate could be admitted provisionally, pending the Crown leading further evidence to establish its full relevance at trial.
Legal Issues
- Whether the forensic certificate dated 15 August 1985 was provisionally relevant to the issues in the trial, sufficient to warrant admission under section 57 of the Evidence Act 1995.
- Whether the chain of custody of the cardboard and carpet items, as traced through the bundle of documents marked Exh T14, sufficiently connected those items to the DFM reference number recorded in the certificate.
Decision
Issue 1: Provisional relevance and admissibility under section 57
Garling J examined a bundle of documents (Exh T14) tendered by the Crown for the limited purpose of establishing provisional relevance. Those documents traced the movement of the cardboard and carpet from the Ballistics Unit to the DFM, the receipt and processing of those items, and the allocation of the reference number "FS 85/306" to the work performed (at [4]).
The court was satisfied that the DFM allocated that number to items received from the relevant police officer, and that items recently inspected bore the same serial number. Taken together, the material in Exh T14 pointed consistently to the certificate relating to items taken from the Kingdom Hall bombing site (at [8]).
Issue 2: Connection between the certificate and the items inspected
The court found it was reasonably open to conclude that the certificate related to items originally collected by Mr Sheather from the scene of the explosion and delivered through Mr Constable to the DFM (at [9]). The court emphasised that its determination of relevance was provisional, as it depended on findings to be made once the Crown led Exh T14 in evidence during the trial proper (at [10]).
Garling J accordingly admitted the certificate provisionally under section 57 of the Evidence Act 1995, marked as Exh 73 (at [11]).
Orders Made
- Certificate dated 15 August 1985 admitted provisionally pursuant to section 57 of the Evidence Act 1995 and marked as Exhibit 73.
Key Takeaways
- Section 57 of the Evidence Act 1995 permits a court to admit evidence provisionally where its relevance depends on other evidence the tendering party intends to lead later in the proceedings, subject to that further evidence being adduced.
- The Supreme Court applied section 57 to admit a decades-old forensic certificate on the basis of supporting documents that traced the chain of custody of the tested items from the crime scene to the forensic laboratory, even though those supporting documents had not yet been formally tendered in the trial itself (at [4]-[8]).
- A provisional admission under section 57 does not constitute a final finding on relevance. Garling J made clear that the certificate's continued relevance depended on the Crown subsequently leading the underlying chain-of-custody material as substantive evidence (at [10]).
- Consistency between a DFM reference number on a forensic certificate and the same number physically marked on items inspected years later was treated as sufficient to establish provisional relevance for the purposes of the section 57 threshold (at [6], [8]).
- The purpose for which a document is tendered shapes the admissibility analysis. Here, the certificate was admitted not to prove its findings as a standalone matter, but to assist a witness in identifying physical items and photographs for tender as exhibits in the proceedings (at [7]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable