Citation: Regina v Lisoff [1999] NSWCCA 364
Court: New South Wales Court of Criminal Appeal
Date: 22 November 1999
Judge(s): Spigelman CJ, Newman J, Sully J
Background
The respondent was one of three accused persons charged in the District Court with maliciously inflicting grievous bodily harm with intent, contrary to s 33 of the Crimes Act 1900 (NSW). The alleged assault was described by the Court as savage and cowardly. While the victim could directly identify the two co-accused, he could not identify the respondent.
The Crown's identification case against the respondent depended almost entirely on scientific evidence: blood detected on clothing the respondent admitted wearing on the day of the assault. DNA analysis indicated the blood came from the complainant, although that finding was contested by defence scientific evidence.
Before trial, Goldring DCJ excluded all scientific, expert, and other evidence relating to the identification of the complainant's blood on the respondent's clothing. The exclusion was made pursuant to s 137 of the Evidence Act 1995 (NSW), which requires a court to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. Without that evidence, the Director of Public Prosecutions indicated there would be no further proceedings against the respondent.
Legal Issues
- Whether an order excluding evidence that, in substance, prevents the Crown from putting its case to a jury constitutes an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), thereby enlivening the Court of Criminal Appeal's jurisdiction to hear a Crown appeal.
- Whether the trial judge applied the correct test under s 137 of the Evidence Act 1995 (NSW) in concluding that the DNA and blood-spotting evidence should be excluded as unfairly prejudicial to the respondent.
- Whether the complexity or contested nature of scientific evidence is, of itself, a sufficient basis to exclude that evidence on unfair prejudice grounds.
Decision
Jurisdiction under s 5F of the Criminal Appeal Act 1912
The Court held that an order which, in substance, prevents the Crown from putting its case to the jury is an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912. Because the exclusion of the DNA evidence effectively ended the Crown prosecution, the order fell within the provision and the appeal was properly before the Court of Criminal Appeal.
The s 137 test and the trial judge's error
The Court found that Goldring DCJ applied the wrong test when exercising the discretion under s 137 of the Evidence Act 1995. Section 137 requires a real risk of unfair prejudice to the defendant before evidence may be excluded. A mere possibility of prejudice does not satisfy the threshold. The trial judge's reasoning did not meet that standard.
Complexity of scientific evidence
The Court rejected the proposition that complex or contested scientific evidence is, for that reason alone, unfairly prejudicial within the meaning of s 137. Where scientific evidence is directly contradicted by other scientific evidence, the conflict between those competing bodies of evidence is quintessentially a matter for the jury. The Court concluded that a careful jury, properly directed on the law and the evidence, was capable of deciding in a reasoned and responsible way whether the Crown had proven its case beyond reasonable doubt.
Orders
The Court vacated the exclusion order and directed that the trial proceed in accordance with its orders. Although the Court considered whether to simply remit the matter for reconsideration (as had been done in a comparable earlier case), it ultimately concluded the appropriate course was to vacate the order outright and allow the trial to proceed.
Orders Made
- The appeal was allowed.
- The order made by Goldring DCJ on 9 August 1999 excluding, pursuant to s 137 of the Evidence Act 1995, the evidence relating to the location and DNA analysis of blood spotting on the respondent's clothing, was vacated.
- The trial of the respondent was directed to proceed in conformity with the foregoing orders and otherwise according to law.
Key Takeaways
- An evidentiary ruling that, in substance, prevents the Crown from presenting its case to the jury qualifies as an "interlocutory judgment or order" under s 5F of the Criminal Appeal Act 1912 (NSW), and is therefore susceptible to a Crown appeal.
- Under s 137 of the Evidence Act 1995 (NSW), exclusion requires a real risk of unfair prejudice to the defendant. A mere possibility of prejudice falls short of the statutory threshold.
- The complexity or contested nature of scientific evidence does not, without more, render that evidence unfairly prejudicial. Conflicting expert evidence is, as a general matter, a question appropriately resolved by the jury.
- Where two competing bodies of scientific evidence are before the court, the proper course is ordinarily to allow both to go to the jury with appropriate directions, rather than to exclude the Crown's evidence on the basis that a jury might struggle with it.
- In granting a Crown appeal under s 5F, the Court of Criminal Appeal may vacate the relevant order outright and direct that the trial proceed accordingly, rather than remitting the matter to the trial court for fresh consideration.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 137
- Crimes Act 1900 (NSW), s 33
Cases
- R v Bozatsis and Spanakakis (1997) 97 ACrimR 296
- Jago v The District Court of NSW (1989) 168 CLR 23
- R v Steffan (1993) 67 ACrimR 506
- R v Baily & Anor (1988) 36 ACrimR 30
- Chamberlain & Anor v The Queen (1984) 153 CLR 521
- R v Lucas (1992) 2 VLR 109
- R v Lewis (1987) 29 ACrimR 276
- R v Powch (1988) 14 NSWLR 136
- R v Edelsten (1989) 18 NSWLR 213
- R v Rogerson (1990) 45 ACrimR 253
- R v Waterhouse (1992) 62 ACrimR 59
- Chow v DPP (1992) 28 NSWLR 593
- R v Jarrett (1994) 73 ACrimR 160
- R v Alexandroaia (1995) 81 ACrimR 286