R. v. Sing [2002] NSWCCA 20

Reported Decision : (2002) 54 NSWLR 31

New South Wales Court of Criminal Appeal

CITATION : R. v. Sing [2002] NSWCCA 20 FILE NUMBER(S) : CCA 60309/00 HEARING DATE(S) : 13 February 2002 JUDGMENT DATE : 13 February 2002

PARTIES : Regina - respondent Shane Richard Sing - appellant JUDGMENT OF : Hodgson JA at 1; Levine J at 45; Howie J at 46

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0056 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : Mr. P. Boulton with Mr. T. Watts for appellant Mr. W. Dawe QC for respondent SOLICITORS : Burston Cole & Co. for appellant S.E. O'Connor for respondent CATCHWORDS : CRIMINAL LAW - Appeal against conviction - DNA evidence - Persons who carried out tests not called - Duties of prosecutor - EVIDENCE - Hearsay - Expert analysis of DNA evidence - Whether based on hearsay - Whether should be excluded as prejudicial. D. LEGISLATION CITED : Evidence Act ss.60, 135, 137 CASES CITED: R v. Kneebone [1999] NSWCA 279 DECISION : Appeal allowed, conviction quashed and new trial ordered.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60309/00 HODGSON JA LEVINE J HOWIE J Wednesday 13 February 2002. REGINA v. Shane Richard SING Judgment NON-PUBLICATION ORDER IN RELATION TO COMPLAINANT'S NAME 1 HODGSON JA: On 21 February 2000 the appellant was indicted before Coolahan DCJ in the Newcastle District Court on four charges. 2 The first charge was a charge under s.112(2) of the Crimes Act that on or about 24 October 1996 he did break and enter the dwelling house of M at Bolton Point and then in the dwelling house committed a felony, namely sexual assault in circumstances of aggravation, namely he deprived M of her liberty. 3 There were then three charges under s.61J(1) of the Crimes Act, each in the same terms, namely that on or about 24 October 1996 at Bolton Point he had sexual intercourse with M without her consent, knowing that she was not consenting, and at the time of the offence he threatened her by means of an offensive weapon to inflict actual bodily harm upon her. 4 The appellant pleaded not guilty and stood trial before Coolahan DCJ and a jury. On 25 February 2000 verdicts of guilty were delivered in relation to all four charges. On 17 May 2000 the trial judge sentenced the appellant in relation to each count to seven years imprisonment, with a non-parole period of four and a half years to date from 24 February 2000, to be served concurrently. The appellant appeals against his conviction and seeks leave to appeal against the sentence. 5 In the prosecution case evidence was given by the complainant, whose name was made subject to a non-publication order, that on 24 October 1996, after attending a concert, she returned to her home at Bolton Point where she lived alone. Her evidence was that when she had left earlier that day she had turned off the lights and closed all doors and windows. Upon arriving home, she noticed that lights were on inside, and when she went inside she saw that the dining room window was open. She was then attacked by a man, who used a knife in forcing her to submit to involvement in a series of particularly aggravated sexual acts, in circumstances where the attacker must have known she was not consenting. The attacker then tied the complainant's wrists and feet, and was seen by the complainant to take a floral jewellery box containing imitation jewellery and put it into one of her bags, which she described as a black sports bag with zippers and a handle, and also to take a videotape and a packet of Christmas bonbons. 6 After the attacker left, the complainant was able to free her feet, and she went to the lounge room where she discovered that her telephone and answering machine and television and video recorder were gone. To seek help, the complainant ran across the road, still naked and with her hands tied, to a house occupied by Suzanne Main and Darren Corry. The police were called, and the complainant was taken to John Hunter Hospital. 7 At the hospital the complainant was examined by Dr Cheryn Palmer, who noted injuries consistent with the events described by the complainant. Dr Palmer gave evidence that she took a number of swabs, including a swab from the high vagina, which were rolled onto slides and which, together with ten mils of blood from the complainant, were placed into a sealed bag together with her notes, which was then placed into a locked refrigerator. 8 According to Detective Christian, the officer in charge of the investigation, on 4 February 1997 he collected this sealed bag, placed it into a locked refrigerator at Toronto police station and on 5 February 1997 he conveyed it to the Division of Analytical Laboratories where he handed it to Ms Carey Biggart. 9 The complainant's evidence was that she did not get a clear look at the assailant: however, she said he was not disguised, had short hair and a spiky haircut, and was wearing a flannelette shirt, a tee-shirt and jeans. 10 Four days after the attack, the complainant was shown a number of albums with photographs, and she nominated one as a photograph of her assailant. This proved to be incorrect. 11 On 27 September 1997, the complainant was shown a video compilation which included an image of the appellant and she did not identify this image. 12 On 25 February 1998, Detective Christian and another detective spoke to the appellant, who agreed to provide a blood sample. He was accompanied to his nominated doctor's surgery, where the sample was taken. Detective Christian gave evidence that he took this sample to Granville police station, where he prepared a specimen exhibit form, and then to the Division of Analytical Laboratories where he handed it to Ms Biggart. 13 Ms Biggart gave evidence that on 21 February 1997 Detective Christian handed her the sealed bag, which has also been called the sexual assault identification kit, and that she processed the items inside this kit. She said that semen was detected on some of the smears, including the high vaginal smear. The swabs were placed into a freezer room. She prepared two stain cards from the blood sample from the complainant, one was used for testing, and the other placed in a locked freezer. 14 Ms Biggart also gave evidence that on 25 February 1998 she received the appellant's blood sample from Detective Christian, and from this prepared two stain cards which were dealt with as were the previous two stain cards. 15 Evidence was given by Rudolf Weigner, a forensic biologist at the division of analytical laboratories, to the effect that in about May 1998, following tests on the complainant's blood sample, the high vaginal swab and the appellant's blood sample being done under his supervision, and with his direct involvement in the case of the first of these, he interpreted the results of these tests. In respect of ten points of reference in the result from each sample, he said there was no difference between the DNA from the vaginal swab and the DNA from the appellant's blood, but significant difference between both of these and the DNA from the complainant's blood. He said that the particular DNA profile which was common to the vaginal swab and the appellant's blood would be expected to be found in only about one person in 1.2 million people of the general population. 16 Evidence was also given by Robert Goetz, another forensic biologist at the division of analytical laboratories, that, apparently in about April 1999, he used what was called Profile Plus DNA analysis on nine markers in the DNA result from the vaginal swab and the appellant's blood sample, and found no differences between them; and he said that the particular DNA profile would be expected to be found in no more than about one person in 3,600 billion people. 17 There was other lay evidence in the case. 18 Suzanne Main gave evidence that on the evening of 24 October 1996 she and her de facto husband Darren and their children went to a barbecue at the nearby home of Chris and Rachael Sing, where she was introduced to the appellant, who is Chris's brother. Ms Main said the appellant had, at that time, really short hair in crew cut style. She said that during the evening Darren, Chris and the appellant left the house and returned later, and that at about 8.30pm she and Darren and the children left and walked home. She said the appellant came with them. She said that before she went to bed she saw Darren and the appellant looking at photo albums, and that after she went to bed she heard the front door close at about 11pm. She woke at about 1am and heard the complainant screaming, and she went down and saw the complainant and Darren inside their front doorway. 19 Rachael Sing gave evidence that on 24 October 1996 the appellant came to her home. She said she remembered Darren Corry being there, but not Suzanne Main, and she said there was no barbecue on that night. She said that in about mid-evening the appellant and Darren Corry left the house, and that she waited up to about 1.30am when the appellant returned. She said she saw him come from a bush track leading in the direction of the street where Darren Corry lived, and that he had a black bag with him which he did not have when he left, like a sports bag with a zipper and handles. She said the appellant told her he had broken into a house and that the lady had come home while he was there. She said that inside the black bag she saw jewellery, a video, Christmas decorations and some dildos and vibrators. In cross-examination she conceded she had lied to police in a statement made on 24 September 1997, and it was suggested to her that she gave evidence with a motivation to shift blame from her husband. 20 There was also evidence from Nicole Stewart, who had been in a relationship with the appellant for about five years up to 1995, and Alyssa Chamberlain, who had been in a relationship with the appellant in 1996. 21 Ms Stewart said that in August 1997 she saw a floral cardboard jewellery box in the appellant's bedside drawer, and that subsequently the appellant said to her that he was in trouble for breaking into someone's house and tying a woman up. Ms Chamberlain said that in about December 1997 the appellant said to her that he was involved in a break and enter in Newcastle in October, and that his brother had left him there. It was suggested in cross-examination to both these witnesses that they had motivation for giving evidence against the appellant. 22 The appellant made no admissions, gave no evidence at trial, and called no witnesses. The appellant relied on the following five grounds of appeal: Ground 1: His Honour erred by admitting into evidence and by failing to withdraw from evidence the testimony of Rudolph Weigner and Robert John Goetz concerning the DNA test results.