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District Court 15 November 2019

R v Kaddour (No 3)

[2019] NSWDC 737

Drugs
CRIMINAL JUDGE ALONE TRIAL JUDGMENT

Citation: R v Kaddour (No 3) [2019] NSWDC 737
Court: District Court of NSW
Date: 15 November 2019
Judge: Bright DCJ

Background

The accused faced five charges arising from the discovery of a clandestine drug manufacturing operation at a residential garage in Berkeley Vale, NSW. On 13 December 2011, ICAC investigators executed a search warrant at the property and found a sophisticated tablet press, large quantities of prohibited drugs including MDA and 4-bromo-2,5-dimethoxyphenethylamine, and substantial inactive compounds capable of producing large commercial quantities of prohibited drugs in tablet form.

The Crown's case relied heavily on DNA evidence collected from items at the Berkeley Vale premises, alongside tendency and coincidence evidence drawn from a separate 2015 drug manufacturing operation at Bingara in which the accused had pleaded guilty to related charges. The Crown contended that the DNA evidence placed the accused at the Berkeley Vale premises and that the Bingara conduct established a relevant tendency and coincidence.

The trial proceeded judge alone before Bright DCJ. The accused pleaded not guilty to all five counts, did not give evidence, and was represented by counsel who challenged the adequacy of the Crown's evidentiary foundation.

Legal Issues

  • Whether the Crown established beyond reasonable doubt that the accused was linked to the Berkeley Vale premises, given the reliance on DNA comparison evidence
  • Whether the reference DNA sample used for comparison purposes was sufficiently identified as having been taken from the accused
  • Whether the Crown should be permitted to reopen its case to lead evidence identifying the reference DNA sample (addressed in an earlier interlocutory decision)
  • Whether the tendency and coincidence evidence from the 2015 Bingara operation could establish the charges in the absence of sufficient primary evidence

Decision

Issue 1: Absence of DNA identification evidence

The DNA evidence was central to the Crown case. It was contained in a forensic certificate that referred to a reference sample used for comparison, but no evidence had been led at trial to establish that this reference sample was actually taken from the accused. Defence counsel raised this gap in closing submissions, and the Crown itself conceded the point: without that foundational identification evidence, the DNA comparison could not link the accused to the Berkeley Vale premises, and the charges could not be proved beyond reasonable doubt (at [103]-[105]).

Issue 2: Crown application to reopen

The Crown had sought to address the gap by applying to reopen its case and call a detective who could give evidence that the reference sample was obtained from the accused in December 2015. That application was declined in a separate judgment (at [107]). With no path to remedying the evidentiary deficiency, the Crown case on all five counts remained incomplete.

Issue 3: Tendency and coincidence evidence

The court admitted tendency and coincidence evidence from the Bingara 2015 events, including the accused's direct involvement in tableting MDA and the recovery of his DNA from items at those premises (at [60]-[72]). However, this evidence was capable of supporting the charges only in combination with other evidence linking the accused to Berkeley Vale. With the DNA comparison evidence unreliable as a matter of identification, and the Crown conceding insufficiency, the tendency and coincidence evidence could not alone establish guilt beyond reasonable doubt (at [112]-[114]).

Verdicts

The court found the accused not guilty on all five counts. The determinative reason was the absence of evidence establishing that the reference DNA sample used for forensic comparison had been obtained from the accused, leaving an unbridgeable gap in the Crown case (at [112]-[115]).

Orders Made

  • Verdict of not guilty on counts 1, 2, 3, 4 and 5.

Key Takeaways

  • The District Court found that where the Crown's case depended on DNA comparison evidence, failure to lead any evidence identifying the reference sample as having been taken from the accused created a fatal gap that could not be overcome by other circumstantial or tendency evidence (at [105], [112]-[113]).

  • A Crown concession that the charges cannot be proved beyond reasonable doubt without a particular piece of evidence, made after that evidence was excluded, was treated as determinative of the verdicts (at [113]-[115]).

  • Tendency and coincidence evidence, even where properly admitted and drawn from conduct to which the accused had pleaded guilty, remains only one component of a case and cannot independently establish guilt when primary linking evidence is absent (at [86], [112]-[114]).

  • Where an application to reopen the Crown case is declined, the evidentiary record is fixed at the close of the Crown case and any conceded deficiency in that record cannot be remedied at the verdict stage.

  • The presumption of innocence and the requirement that the Crown prove every element beyond reasonable doubt operated to require acquittals across all counts once the foundational DNA identification evidence was found to be missing (at [15]-[16], [114]-[115]).

Legislation and Cases Referenced

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

Cases
- Fleming v R (1998) 197 CLR 250
- R v Kaddour [2019] NSWDC 243
- R v Kaddour (No 2) [2019] NSWDC 405