R v McNeill (Ruling No 2) [2007] NFSC 3

SUPREME COURT OF NORFOLK ISLAND

R v McNeill (Ruling No 2) [2007] NFSC 3

EVIDENCE — objection taken to mitochondrial DNA evidence — whether Court should exercise discretion pursuant to Evidence Act 2004 (NI) s 135(a) or (b) — whether evidence would be "unfairly prejudicial" — whether evidence would be "misleading or confusing" — evidence excluded in exercise of discretion Evidence Act 1995 (Cth) s 135 Evidence Act 1995 (NSW) ss 135, 137 Evidence Act 2004 (NI) ss 55(1), 56(2), 135, 135(a), 135(b), 137 Australian Retailers Association v Reserve Bank of Australia(2005) 148 FCR 446 cited Hughes Aircraft Systems International v Airservices Australia (1997) 80 FCR 276 referred to R v BD (1997) 94 A Crim R 131 cited R v Lisoff [1999] NSWCCA 364 discussed R v McNeill (Ruling No 1) [2007] NFSC 2 referred to R v Singh-Bal (1997) 92 A Crim R 397 referred to Re GHI (a Protected Person) [2005] NSWSC 466 referred to Reading v Australian Broadcasting Corporation [2003] NSWSC 716 referred to THE QUEEN v GLENN PETER CHARLES MCNEILL SCC1 OF 2006 WEINBERG CJ 16 FEBRUARY 2007 NORFOLK ISLAND IN THE SUPREME COURT OF NORFOLK ISLAND

CRIMINAL JURISDICTION SCC1 OF 2006

BETWEEN: THE QUEEN

AND: glenn peter charles mcneill

judge:: weinberg cj

DATE: 16 february 2007

PLACE: norfolk island

Reasons for excluding the evidence of Dr Terry Melton re mitochondrial DNA 1 Before the Crown case was opened, Mr Garling SC, on behalf of the accused, indicated that he would object to any evidence being led from Dr Terry Melton, a proposed Crown witness. After a short voir dire and submissions from the parties, I ruled that this evidence should be excluded in the exercise of my discretion. I said that I would publish my reasons at a later stage. These are those reasons. 2 The background to this ruling can be stated briefly. In 2005, after the police had located the Honda Civic that had formerly belonged to the accused, they found several human hairs in the boot of that car. In order to determine whether they could be linked in any way to Janelle Patton, some of those hairs were selected to be sent to the United States for mitochondrial DNA testing. Dr Melton, an acknowledged expert in that field, prepared two reports regarding her findings, the first dated 12 January 2006 and the second dated 21 March 2006. The Crown proposed to call Dr Melton to give evidence in accordance with those reports with the aim of having the jury conclude that one or more of the hairs found in the boot of the Honda Civic came from Janelle Patton.