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Supreme Court 2 November 2018

R v Warwick (No.55)

[2018] NSWSC 2011

Other
EVIDENCE DISCRETIONS LIMIT ON USE REMOVED

Citation: R v Warwick (No.55) [2018] NSWSC 2011
Court: Supreme Court of New South Wales
Date: 2 November 2018
Judge: Garling J

Background

This decision arises in the course of a lengthy criminal trial (judge alone) concerning, among other matters, an alleged bombing at a Kingdom Hall at Casula in July 1985. The Crown sought to rely on DNA evidence linking the accused to the scene.

In 2013, police submitted two items, a piece of cardboard and a piece of carpet, to the NSW Forensic and Analytical Science Services (FASS) for DNA analysis. A forensic biologist swabbed the items and produced six samples, which were then processed through a series of laboratory steps. A senior FASS scientist, Dr David Bruce, subsequently expressed expert opinions about the DNA profiles recovered from those samples.

When two exhibits comprising the FASS DNA records (Exhibits 171 and 172) were admitted into evidence in September 2018, Garling J imposed a limitation under s 136 of the Evidence Act 1995 restricting the use of documents called "DNA Submission Sheets" within those exhibits, specifically that their contents were not admitted as being true. The Crown then called individual FASS scientists to give evidence about the laboratory steps they had performed, and applied to have the s 136 limitation removed.

Legal Issues

  • Whether the evidence of the FASS scientists established the truth of the contents of the DNA Submission Sheets, such that the s 136 limitation should be lifted.
  • Whether the FASS scientists were giving expert opinion evidence, triggering obligations under the Expert Witness Code of Conduct.
  • Whether s 137 of the Evidence Act 1995 required the court to refuse unconditional admission of the exhibits because the danger of unfair prejudice to the accused outweighed the probative value of the evidence.

Decision

Issue 1: Whether the FASS scientists were giving expert opinion evidence

The court rejected the accused's submission that the FASS scientists were providing expert opinions requiring compliance with the Expert Witness Code of Conduct. Their evidence was characterised as evidence of fact: each scientist gave evidence of what they personally did on particular dates and that the relevant laboratory step was completed successfully. The application of skill to a task does not convert factual evidence into expert opinion (at [24]).

Issue 2: Whether the truth of the DNA Submission Sheets was established

The court was satisfied that the Crown had proved the truth of what the DNA Submission Sheets recorded. Each scientist confirmed, by reference to the relevant sheet, that they had performed their allocated step, that it was completed successfully, and that any failure would have been recorded. The court drew the inference that the absence of any record of failure or repetition indicated each step was carried out correctly (at [19], [36]). The court also observed that a DNA profile could not have been produced had any prior step failed, and that the DNA Submission Sheets were contemporaneous documents of the type relied upon by Dr Bruce in forming his expert opinion (at [31], [34]).

The accused's argument that the scientists should have refreshed their memories from the electronic LIMS database rather than the printed DNA Submission Sheets was rejected. The court found the Crown was not obliged to require witnesses to refresh their recollection in any particular way, provided the document used was of a familiar type produced by the laboratory system (at [35]).

Issue 3: Whether s 137 required exclusion due to unfair prejudice

The court found the probative value of the DNA evidence was very high: if accepted, it would link the accused's DNA to the scene of the Kingdom Hall bombing and support the Crown's case that the accused committed the offences charged (at [39]). Because this was a judge-alone trial, the risk of evidence being misused by a jury was not a relevant concern (at [40]).

The court was not persuaded that the absence of LIMS records caused any unfair prejudice to the accused. The DNA Submission Sheets were themselves contemporaneous records drawn from the laboratory system; there was no suggestion the material produced on subpoena was incomplete; the accused had access to Dr Bruce's work file before cross-examination; and no identified fact or circumstance suggested the DNA processes had been improperly followed (at [45]-[48]). The late-made email request for LIMS records did not alter that conclusion, and the court noted that any further application based on such documents could be addressed if and when they were produced (at [49]). The probative value of the evidence was not outweighed by any unfair prejudice (at [50]).

Orders Made

  • The limitation imposed on Exhibits 171 and 172 pursuant to s 136 of the Evidence Act 1995 was removed.
  • Exhibits 171 and 172 were admitted unconditionally.

Key Takeaways

  • Evidence from scientists about the laboratory steps they personally performed constitutes evidence of fact, not expert opinion, even where those steps required the application of technical skill. Compliance with the Expert Witness Code of Conduct was therefore not required (at [24]).

  • Under s 136 of the Evidence Act 1995, a court may impose a limitation on the use of evidence at the time of admission and later remove that limitation once sufficient evidence has been adduced to establish the truth of the contents of the relevant documents (at [1]-[2], [36]).

  • A witness is entitled to refresh their recollection from a document of a type familiar to them as produced by a relevant system; there is no obligation for the Crown to require witnesses to consult a particular electronic database before giving evidence (at [35]).

  • In a judge-alone trial, the risk that evidence may be misused or applied inappropriately by a jury is not a relevant factor in the s 137 balancing exercise between probative value and unfair prejudice (at [40]).

  • Where the defence sought to rely on the absence of LIMS records to establish unfair prejudice, the Supreme Court was not persuaded that prejudice existed absent any demonstrated deficiency in the material produced on subpoena, any identified irregularity in the laboratory processes, or any timely application for further production (at [45]-[49]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- R v Warwick (No.49) [2018] NSWSC 1557