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District Court 31 July 2019

R v Kaddour (No 2)

[2019] NSWDC 405

Drugs
CRIMINAL JUDGE ALONE TRIAL PROCEDURE

Citation: R v Kaddour (No 2) [2019] NSWDC 405
Court: District Court of New South Wales
Date: 31 July 2019
Judge(s): Bright DCJ

Background

The accused stood trial before a judge alone in the Gosford District Court on charges relating to prohibited drugs located at premises in Berkeley Vale, where police executed a search warrant in December 2011. The Crown's case rested significantly on DNA evidence: a forensic certificate identifying a DNA profile matching the accused on four items found in a garage at those premises, including a breathing mask and latex gloves.

The critical link in the DNA evidence was a reference sample, taken from the accused in December 2015, that had been used for comparison purposes. However, no evidence was actually led at trial to establish that the reference sample belonged to this accused. The Crown case closed, no defence case was run, and both parties completed their closing addresses.

It was only during the defence closing address that this gap was identified. The defence submitted that the Crown had led no evidence connecting the reference sample to the accused. The Crown then applied to reopen its case to call Detective Senior Constable Brest to supply that missing proof.

Legal Issues

  • Whether the court should exercise its discretion to allow the Crown to reopen its case after the close of defence and completion of closing addresses
  • Whether the missing evidence could be characterised as proof of a "purely formal matter" that was overlooked, so as to justify reopening
  • Whether the failure to lead the evidence caused unfairness to the accused sufficient to warrant refusal
  • Whether the accused was obliged to identify the evidential deficiency in a defence notice under section 143 of the Criminal Procedure Act 1986

Decision

Issue 1: Whether the evidence was a purely formal matter overlooked in chief

Bright DCJ applied the principles from The Queen v Chin (1984-1985) 157 CLR 671, which requires the court to assess whether reopening is justified by the proof of some purely formal matter that was overlooked. The evidence sought to be led could not be characterised that way (at [31]-[32]). The detective's evidence had never been served as part of the Crown brief, and the Crown only became aware of the deficiency when the defence raised it in closing address (at [32]). That factual context placed the omission well outside the category of a mere oversight in the formal sense recognised in the authorities.

Issue 2: Fairness to the accused

The court accepted that the defence had conducted its entire case on the basis that there was simply no Crown evidence linking the accused to the Berkeley Vale premises (at [33]). On that basis, the Crown case went unchallenged: there was no cross-examination of the DNA expert or of the witness residing at the premises, and the question of whether the accused should give evidence was not considered in that light. Bright DCJ was satisfied that allowing the Crown to reopen in those circumstances would cause unfairness to the accused (at [33]).

Issue 3: The section 143 defence notice obligation

The Crown argued that the deficiency should have been raised in the accused's section 143 notice under the Criminal Procedure Act 1986, and also that the evidence related to continuity of custody of an exhibit, which must be flagged in such a notice. The court rejected both arguments. The accused had complied with section 143 (at [37]), and the obligation on the defence under that provision is to respond to the prosecution case as presented. There is no obligation on an accused to identify a complete absence of Crown evidence (at [30]). Further, the evidence of Detective Brest concerned establishing that a DNA sample was taken from the accused, which is not the same as continuity of custody of an exhibit (at [37]).

Orders Made

  • Crown application to reopen the Crown case declined.

Key Takeaways

  • The District Court refused to allow the Crown to reopen its case where the missing evidence had never been served as part of the Crown brief and the gap only came to light during the defence closing address, distinguishing this from a mere oversight of a purely formal matter (at [31]-[32]).

  • Under the principles in The Queen v Chin, a court will consider both whether the omission qualifies as a purely formal oversight and whether reopening would cause unfairness to the accused; both considerations weighed against the Crown here (at [31]-[33]).

  • Where the defence has structured its entire case around the absence of particular Crown evidence, including decisions about cross-examination and whether to call the accused, fairness to the accused can be a decisive reason to refuse an application to reopen (at [33]).

  • No obligation arose under section 143 of the Criminal Procedure Act 1986 for the accused to identify a complete absence of evidence in the Crown case; the statutory obligation on the defence is to respond to the prosecution case that was actually presented (at [30], [37]).

  • Evidence establishing that a DNA reference sample was taken from the accused is not evidence going to the continuity of custody of an exhibit, and could not be characterised as such for the purpose of the section 143 notice obligation (at [37]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act, 1985

Cases
- Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565
- Lawrence v The Queen (1981) 38 ALR 1
- R v Kaddour [2019] NSWDC 243
- R v Wasow (1985) 18 A Crim R 348
- Reg. v Levy and Tait (1966) 50 CrAppR 198
- Shaw v The Queen (1952) 85 CLR 365
- The Queen v Chin (1984-1985) 157 CLR 671