Citation: [2018] NSWSC 1292
Court: Supreme Court of New South Wales
Date: 17 August 2018
Judge(s): Garling J
Background
This ruling arose during the trial of an accused in connection with a bombing at a Kingdom Hall in Casula on 21 July 1985. The Crown sought to tender two photographs and a physical piece of cardboard as evidence, both of which related to items reportedly recovered from the crime scene shortly after the explosion.
A former Detective Sergeant in the NSW Police had collected the cardboard and a piece of carpet from the scene after being directed to a location by another individual. The items were placed in large brown evidence bags and subsequently transferred through the forensic chain to the Division of Forensic Medicine at Glebe.
The accused objected to the admission of the photographs and the cardboard, arguing that the identification of the items was insufficiently established. The Crown relied on a combination of witness evidence and documentary records to support the chain of custody.
Legal Issues
- Whether the photographs and the physical piece of cardboard were admissible in evidence, given the witness's lack of specific memory as to whether the cardboard tendered was the same item he collected at the scene
- Whether there was a sufficient factual basis to identify the tendered items as those recovered from the crime scene
Decision
Issue: Admissibility of the photographs and cardboard
The accused submitted that, because the former detective had no specific memory linking the tendered cardboard to what he had collected, and because no observable similarity existed between the item and his earlier description, the evidence lacked the necessary foundation for admission (at [3]). Relevance was not disputed (at [3]).
Garling J rejected the objection. His Honour noted that the witness had referred to both the photographs and the cardboard in his evidence, and that his description of what he had collected was not inconsistent with the tendered items (at [4]-[7]). The description referred to "cardboard" and a piece of carpet stored in large brown evidence bags (at [5]).
His Honour found that a combination of factors established a proper factual basis for identification: the bags used at the scene, the retention of items until submission to the Division of Forensic Medicine, records documenting the movement of the items, and the notation of a Division of Forensic Medicine allocated number on the items (at [7]). Taken together, those matters satisfied the court that the photographs and the original item were admissible (at [8]).
Orders Made
- The photographs and the original item the subject of the photographs were admitted and marked as Exhibit 74.
Key Takeaways
- A combination of circumstantial factors relating to chain of custody, including evidence bags, movement records, and forensic body numbering, can establish a sufficient factual basis for identification of physical exhibits even where the collecting witness has no specific recollection linking the item to the scene (at [7]).
- The absence of specific memory by the collecting officer does not automatically preclude admission of physical evidence where other evidence supports continuity of possession and identification (at [7]-[8]).
- The Supreme Court confirmed that where a witness has referred to an item in evidence and the surrounding chain of custody documentation is consistent with that evidence, the item may satisfy the threshold for admission (at [4], [7]-[8]).
- Relevance was not in dispute in this ruling; the sole question before the court was whether a proper factual foundation for identification had been established (at [3]).
Legislation and Cases Referenced
Legislation
- Not Applicable
Cases
- Not Applicable