AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 17 June 2025

R v Cairney (No 20)

[2025] NSWSC 785

Other
EVIDENCE ADMISSIBILITY OF EVIDENCE RULING ON SUMMARY OF DNA TABLE S 50 EVIDENCE ACT NOT SATISFIED

Citation: R v Cairney (No 20) [2025] NSWSC 785
Court: Supreme Court of New South Wales
Date: 17 June 2025
Judge(s): Campbell J

Background

This ruling arises within a murder trial that has been running for a considerable period. The prosecution sought to adduce a summary of a DNA table as evidence of the contents of underlying documents, relying on section 50 of the Evidence Act 1995 (NSW). Section 50 permits a court to allow evidence to be given by a summary where it would not otherwise be convenient to examine documents because of their volume or complexity.

The DNA evidence in question relates to findings made by Dr Summerell, a forensic biology and DNA expert. Her report and an associated expert certificate (marked as MFI-54 in the trial proceedings) formed the backdrop to the evidentiary dispute. A further complication was that the parties had agreed to exclude a particular portion of the document, requiring redaction.

Legal Issues

  • Whether the conditions required by section 50 of the Evidence Act were satisfied so as to permit a summary of the DNA table to be adduced in evidence.
  • Whether, in the alternative, the DNA evidence could be placed before the court by reference to Dr Summerell's expert certificate and/or her oral evidence.
  • Whether descriptions of crime scene swabs contained in Dr Summerell's report were admissible under section 60 of the Evidence Act, and whether any section 136 limitation was warranted.

Decision

Issue 1: Section 50 Evidence Act -- admissibility of the DNA table summary

Campbell J refused leave to adduce the summary under section 50. The court was not satisfied that examining Detective Senior Sergeant Moon's evidence would be inconvenient due to the volume or complexity of the documents, particularly in the context of a trial that had already run for a significant length of time (at [1]). The foundational condition animating section 50 had not been established.

Issue 2: Alternative means of adducing the DNA evidence

The court identified a workable alternative path. The DNA findings could be given by reference to Dr Summerell's expert certificate (MFI-54 in unredacted form, subject to the agreed redaction), given that she is a relevantly qualified expert in forensic biology and DNA (at [2]). To the extent further exploration of the evidence's significance is required, Dr Summerell is available to give oral evidence, including by way of cross-examination, in the ordinary manner (at [2]).

Issue 3: Admissibility of crime scene swab descriptions under section 60, and section 136

The court considered whether descriptions of swabs taken by crime scene officers, as contained in Dr Summerell's report, were admissible. Campbell J held those descriptions admissible under section 60 of the Evidence Act (at [3]). On the question of whether a section 136 limitation (which allows a court to limit the use of evidence) might be sought, the court found that crime scene evidence already adduced in the trial sufficiently established the factual basis for those descriptors, making any such limitation unnecessary (at [3]).

Orders Made

  • Leave refused pursuant to section 50 of the Evidence Act to adduce the summary of the DNA table as evidence of the contents of documents.

Key Takeaways

  • Section 50 of the Evidence Act requires the court to be satisfied that it would not otherwise be convenient to examine the evidence because of the volume or complexity of the documents; that threshold is not automatically met simply because a trial has been lengthy or the underlying evidence concerns a technical subject (at [1]).
  • Where section 50 is unavailable, courts may permit expert DNA evidence to be given through an expert certificate, provided any agreed redactions are applied, without the need to resort to a summary document (at [2]).
  • Oral evidence from the relevant expert, including cross-examination, remains an available and orthodox mechanism for exploring the significance of complex forensic findings (at [2]).
  • Under section 60 of the Evidence Act, descriptions of crime scene exhibits contained within an expert's report may be admissible where those matters are relevant to the expert's findings (at [3]).
  • Where crime scene evidence already before the court sufficiently establishes the factual basis for descriptors in an expert report, a section 136 application to limit use of that evidence may not succeed (at [3]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 50, 60, 136

Cases
- Not stated