New South Wales Court of Criminal Appeal CITATION : R v CHANTHOVIXAY [2004] NSWCCA 285 HEARING DATE(S) : 5 August 2004 JUDGMENT DATE : 5 August 2004 JUDGMENT OF : Beazley JA at 1; Wood CJ at CL at 2; Hulme J at 3 DECISION : See paragraph 60 PARTIES : Regina Vanikone CHANTHOVIXAY FILE NUMBER(S) : CCA 60220/04 COUNSEL : Crown: L Lamprati SC Respondent: M Higgins SOLICITORS : Crown: R Kavanagh Respondent: C Tosevic LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/1207 FILE NUMBER(S) : LOWER COURT BELL DCJ JUDICIAL OFFICER : - 17 - IN THE COURT OF CRIMINAL APPEAL 60220/04 BEAZLEY JA WOOD CJ AT CL HULME J Thursday, 5 August 2004 REGINA and VANIKONE CHANTHOVIXAY Judgment 1 BEAZLEY JA: I agree with Hulme J. 2 WOOD CJ AT CL I agree with Hulme J. 3 HULME J: This is an appeal by the Crown under s5F of the Criminal Appeal Act against decisions of Judge Philip Bell made on 21 and 24 May last that he would refuse to admit two areas of evidence in a trial listed before him. 4 According to the papers provided to the Court in connection with the appeal the Respondent had been arraigned and pleaded not guilty to three charges to the following effect:- 1. On 20 September 2002 while in the company of others detained Louis Muller with intent to obtain an advantage, namely to take and drive a motor vehicle and at the time of the offence actual bodily harm was occasioned to Mr Muller. 2. On 20 September 2002 assaulted Louis Muller with intent to take the motor vehicle and in fact took and drove it without consent in circumstances of aggravation namely that he was in the company of other persons and armed with an offensive weapon. 3. On 20 September 2002 when armed with a dangerous weapon robbed Louis Muller. 5 The case which the Crown proposes to present is that Mr Muller was the personal driver for the owner of the motor vehicle, registered number DK-128. Some time after 9.15pm on Friday 20 September 2002, Mr Muller returned to the car in a car park, had placed 4 parcels in the boot, and was in the process of getting into the car itself, when three males of Asian appearance approached him demanding the keys to the car. One pointed a firearm in his direction and the firearm discharged. A struggle occurred and Mr Muller was again threatened with the firearm. Mr Muller was beaten, had the car keys taken from him, was placed in the boot of the car, the boot was shut and the car driven off. 6 After some time the car stopped, the boot was opened, Mr Muller had his arms forced behind him, his wrists and hands were taped together and so were his ankles. Threats were made as were demands for a pin number which Mr Muller provided. The boot was again shut with Mr Muller inside and the car was again driven off. 7 At some stage Mr Muller managed to work off some of the tape binding him and free his wrists although he pushed his hands back into the ring of tape to disguise the fact. Later the boot was opened. One of the men pulled Mr Muller's legs out. He managed to get the rest of his body out and fell on to the ground. The car boot slammed shut and the car drove off. Shortly thereafter Mr Muller attracted attention. 8 The person who first rendered help to Mr Muller was a Ron Jamhour whose statement indicates that the help was rendered sometime after 12.40am on 21 September 2002. He saw Mr Muller's wrists were taped together and that he had some tape hanging off one of his ankles. He said it was hard to tell because of the light but the tape looked "like the stuff you use when shrink wrapping pallets". 9 An ambulance officer, Francis Cox says that a job was received at 1.15am on 21 September. At 1.25am they arrived at the scene and attended to Mr Muller. Mr Cox made a note on the case sheet that Mr Muller had bindings to the hands and feet but can't recall if these were in place when he arrived or he was simply informed of it. 10 Cassandra Langton, another ambulance officer who attended in her statement said, "I also remember tape. It was clear tape. This tape came from Louis Muller. Where it came from, I'm not sure. But it may have come from his ankles. Why I say that is because his hand (sic) were free when he was treated." 11 Constable Frame records attending at the scene at 1.25am on 21 September 2002. Her statement says, inter alia, "the ambulance officers removed two pieces of clear masking tape from Muller's wrists and ankles. I secured these items." She photographed and retained the two pieces of clear masking tape. 12 The motor vehicle DK-128 was seen by Detective Senior Constable Ross and Senior Constable Sareen on the morning of 21 September 2002. According to Constable Sareen, this occurred some time after 10.00am. At the time the vehicle contained three Asian males. 13 Constable Sareen in her statement said that when first seen DK-128 was stopped facing east in Elizabeth Drive, Mt Pritchard and in the designated right turn lane. The police vehicle drove west past it, then executed a U-turn to come up behind it. While this was occurring DK-128 cut across three lanes of traffic and turned left i.e. north. DK-128 accelerated harshly and drove contrary to a red traffic control light. Detective Ross' statement is not as precise but substantially corroborates this evidence. 14 Later, at about 2pm, Constables Ross and Sareen saw motor vehicle DK-128 parked unattended near 15 Schoemaker Place, Bonnyrigg. When first seen by them the vehicle was locked. The police took possession of it and it was taken to Cabramatta police station. 15 Steve Healy of 17 Schoemaker Place says that at about 11.00am on 21 September he saw the car parked in the street, three young men of Asian appearance getting out of the car and saw them holding rags and car polishing mitts wiping down the outside of the car. After these activities the three left. Mr Healy went to work returning about 12.15pm at which time the Mercedes was still there. Mr Healy also saw an Asian male walking on the street as if he was coming from where the car was. Mr Healy called the police. 16 Roslyn Ponting of 16 Schoemaker Place, Bonnyrigg said that she saw the car arrive at about 10.30 to 11.00am on 21 September and saw three persons get out of it. Two were Asian and one of these looked to be Vietnamese rather than Chinese. The third was Caucasian. Ms Ponting does not refer to any polishing or wiping of the car. She does however say, "As soon as the driver got out he jogged down the alleyway and stopped. He called out to the other two and said, 'Put the windows up, lock the car, put the alarm on.' The other two who had started moving into the alley way after the driver stopped and went back and got into the car." 17 Neither of these witnesses from Schoemaker Place refer to the boot being opened or emptied when the vehicle was there. 18 Senior Constable Agis of the Penrith Crime Scene Section examined the motor vehicle observing in it, "a piece of scrunched clear sticky tape" in the boot. He photographed the tape and other areas of the vehicle and took possession of other sundry contents. 19 Colour photocopies of three photographs of the boot and sticky tape taken by Constable Agis were tendered on the voir dire hearing to determine the question of admissibility. So was a colour photocopy of another photograph of the inside of the boot and apparently showing the sticky tape. To my eye, the photographs show the bundle of sticky tape to be some centimetres if not inches in two of its dimensions and to contain a substantial length of clear tape but otherwise the photocopies do not provide a clear indication of its nature. 20 The photographs taken by the police indicate that, apart from the scrunched up tape, the boot was empty from which may infer that the four shopping bags Mr Muller had placed in it had been removed prior to the police taking possession of the car. 21 Also in evidence were colour photocopies of 2 photographs each depicting 2 pieces of clear masking tape. The photographs had been taken by Constable Frame and were of the masking tape taken from Mr Muller's wrists and ankles. The photocopies are very unclear. 22 Although the matter was not as clearly expressed as it might have been, it seems to have been common ground also that there was no evidence that the tape taken from the boot and the tape taken from Mr Muller were "the same tape". The tenor of the discussion which preceded that final statement indicated that it was common ground there was no evidence from a manufacturer or scientifically that they were the same tape and no evidence from a lay person that they were the same tape. 23 However, it should be noted that it appears from the transcript before Judge Bell that both the tape from the boot and that taken from Mr Muller appear to have been in Court in the possession of the Crown and counsel for both the Crown and the Respondent seem to have agreed that there was no need for the two parcels of tape to be tendered before his Honour on the voir dire. The tape from at least one place was showing the result of having had fingerprinting chemical applied to it. 24 In these circumstances, the inference is inevitable that if there were obvious differences between the pieces, that difference would have been brought to his Honour's intention. Thus I would infer that the agreement that there was no evidence that the pieces were the same means that there was no evidence that they were identical in composition. Of course a jury will be able to consider whether they appeared to be the same. 25 For the purposes of the voir dire proceedings before Judge Freeman it was accepted that DNA had been found on the scrunched up tape seen in the boot, and that DNA was consistent with the Respondent and one in 6 million of the population. It seems also to have been common ground that the Crown would be calling evidence that the tape was not in the car prior to Mr Muller's abduction. 26 I have said that the appeal relates to Judge Bell's decision that he would refuse to admit two areas of evidence in a trial listed. The first area relates to the "piece of scrunched clear sticky tape" found in the boot of motor vehicle DK-128 and the DNA evidence relating thereto. I use the expression "relates to" because regrettably, although there was more than ample discussion, his Honour failed to make it clear what it was to which decision related. In the concluding paragraph of his reasons his Honour said that "the Crown will not be able to adduce evidence in relation to the identification of DNA material on the tape" but that is all that is clear. Furthermore when, in his reasons dealing with the second area of evidence, his Honour referred to the decision in this first area, he described it in terms that he had "held that the Crown was unable to call evidence as to the presence of a DNA match with that of the accused on certain tape found in the boot of a motor vehicle". 27 His Honour did at one stage say that Mr Higgins' (counsel for the Respondent) first submission was that "the Crown not be permitted to adduce evidence in relation to the tape" and because the evidence of the tape in the boot is of little, if any consequence unless, as seems unlikely, there is a challenge to the substance of Mr Muller's account, probably his Honour's ruling should be regarded as applying to all of the evidence relating to the tape found in the boot. 28 Upholding an argument he had suggested, Judge Bell decided that this evidence was inadmissible on the ground that it was irrelevant. On the basis of the information his Honour had before him, that decision is plainly wrong. 29 Evidence that the tape was not in the boot prior to Mr Muller's abduction some time after 9.15 on the night of 20 September and that it was there when Senior Constable Agis examined the vehicle at about 5.35pm on the 21st September indicates that the tape must have been placed there in the intervening period. The period for placement is reduced when regard is had to the evidence that police took control of the vehicle at about 2pm on the 21st. 30 Mr Muller's evidence tends to indicate that the vehicle was under the control of his 3 captors until he was freed. His evidence and that of Mr Jamhour indicates that was some time around 12.40am on the 21st. 31 The captors were 3 men of Asian appearance. At some time after 10am, the vehicle was seen being driven by 3 men of Asian appearance. At about 10.30 to 11 am, the vehicle was parked in Schoemaker Place. One witness said that those who alighted from the vehicle were 3 men of Asian appearance although another said that 2 were of this description and the third was Caucasian. The vehicle was seen again still there on a number of occasions prior to the police taking control of it at about 2pm. The 3 persons who alighted from the vehicle left the areas although at about 12.15 Mr Healy saw an Asian male in the street in circumstances such that it looked as if he was coming from where the vehicle was. 32 When Constable Ross found the car, it was locked. Although there does not seem to be any evidence as to the state of the windows or the alarm, the evidence referred to in this paragraph justifies the inference that one or more of the instructions given by the driver of the car was followed. The fact that the sunroof seems to have been slightly open does not detract from the substance of this conclusion. 33 Outside a limited number of environments, such as premises where a substantial degree of packing occurs, the occurrence of large quantities of clear sticky tape is relatively infrequent. Common experience indicates that it is also unlikely to be found in the boot of a motor vehicle except in unusual or infrequent circumstances. When one has regard to the fact that the car boot in which the tape was found was the same car boot in which Mr Muller was bound with tape within the preceding 24 hours, there is a reasonable, indeed I would say a strong, probability of a connection between the tape found in the boot and that with which Mr Muller was bound. 34 And if the possibility of such a connection exists, the DNA evidence tending to link the Respondent with the tape found in the boot was also admissible. Combined, the evidence of the tape which bound Mr Muller, of the tape found in the boot, and of the DNA "could", to quote the words of s55 of the Evidence Act, "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings", viz whether the Respondent was involved in the binding or kidnapping of Mr Muller. 35 Of course there are other possibilities. For example the three persons who, according to Mr Muller kidnapped him, might have used some tape with which the Respondent had some prior contact. The Respondent's first involvement with the car or tape may have been after Mr Muller was set free. Someone else, not a member of the 3, might have become involved with the car after Mr Muller was set free, brought some tape with which the Respondent had some prior contact and similar to that with which Mr Muller was bound and left it in the boot. However the existence of such possibilities – whether or not, as I think, remote – does not detract from the fact that the evidence could affect the probability of whether the Respondent was involved in the binding or kidnapping of Mr Muller. 36 On behalf of the Respondent, before Judge Bell and in this Court reliance was placed upon evidence that the groceries placed in the boot of the car by Mr Muller were not there when the police examined the car, that the 3 persons who left the car in Schoemaker Place had wiped the car over before leaving it, and that no fingerprints were found on the car. This carefulness exhibited by this evidence was said to be inconsistent with the leaving by the offenders of evidence incriminatory of one of them in the boot. 37 These matters no doubt provide an argument why the inference which the Crown seeks should not be drawn although experience in the criminal courts demonstrates that it is by no means unheard of for the most careful planning to be defeated by one piece of carelessness. But be that as it may, these matters provide a basis for arguments to the jury. They do not detract from the admissibility of the evidence for what it could tend to establish. 38 Reliance was also placed on information given to his Honour to the effect that there was no evidence of Muller's DNA on the sticky tape from the boot. His Honour was also informed that there was no evidence of the Respondent's DNA on the masking tape removed from Muller's wrists and ankles. His Honour was informed that there was no evidence demonstrating the sticky tape seized from the boot of the car is the same tape as that used upon Muller. 39 On the issues before this Court, these matters are irrelevant. They are, for example, perfectly consistent with the Respondent not having handled any tape until after Mr Muller was bound and the tape found in the boot not having been touched by Mr Muller or put there until Mr Muller was set free. They say nothing about whether the evidence the subject of this appeal "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. 40 The second area of evidence concerned events said to have occurred on 7 October 2002. Statements of Mohamath and Samano Ma, aged 15 and 14 respectively indicate that two persons, a Tony Huynh and another they referred to as "Vanikone" forced entry into their home around 7pm on that date, and that at a time Vanikone was holding a gun and Mr Hunyh a pole. Their description indicates the gun was a rifle. Messrs Ma said that the two intruders searched or ransacked the house and were still there when police sirens were heard, the intruders then went upstairs with the gun and pole and before the police arrived returned downstairs without those weapons. The intruders were downstairs when the police entered. The police found a loaded 22 calibre sawn-off rifle in an upstairs bedroom. One of the occupants of the house had injured himself jumping from an upstairs bedroom window apparently to avoid the intruders. 41 In relation to the events said to have occurred on that day, the Respondent and one Tony Huynh were charged on two charges. One of, in circumstances of aggravation robbing Clint Crosby of money and inflicting grievous bodily harm upon him, need not be further referred to. The other was of breaking and entering premises at 28 Mittiamo Street, Canley Vale with intent to commit a serious indictable offence in circumstances of aggravation and special aggravation. The circumstances of aggravation were particularised as:- (i) They were armed with an offensive weapon, or instrument; (ii) They were in company of one another; (iii) They used corporal violence on a person; (iv) They maliciously inflicted actual bodily harm on a person; (v) They knew there was a person or persons in the dwelling house. 42 The circumstances of special aggravation were said to be:- (i) They maliciously inflicted grievous bodily harm on a person; (ii) They were armed with a dangerous weapon, namely a firearm. 43 A trial in respect of these matters took place before Judge Payne on 2-5 September 2003. In relation to both charges the Respondent and Mr Huynh were found not guilty by direction. 44 The particular significance of the evidence to the trial before Judge Bell was that, as was accepted for the purposes of the admissibility argument, the Crown could prove that the firearm found by police on 7 October was the weapon from which a bullet had been fired at or near Mr Muller on 20 September. 45 Judge Bell indicated that he would refuse to admit this evidence in the trial before him on a number of bases. I am not sure whether one of these was relevance for his Honour said in two successive paragraphs "I am unable to see that it is relevant because of the time delay" and "my ruling is that the possession of the gun on the later event would be evidence capable of being admitted as relevant evidence as to the events 17 days earlier." It may be that a "not" has been inadvertently omitted from one of these passages. 46 However his Honour certainly regarded the evidence as inadmissible on the ground that its use "must necessarily diminish the benefit to Mr Chanthovixay of the fact of his acquittal of the charge part of which alleges him being armed with that particular weapon". His Honour also seems to have concluded that the probative value of the evidence would be "outweighed by the danger that it would be unfairly prejudicial to the accused" within, it may be inferred, s137 of the Evidence Act and because it would be unfairly prejudicial and "be misleading or confusing" within s135 of that Act. The following sets out his Honour's reasoning. After referring to R v Storey (1978) 140 CLR 364 his Honour said:- "Evidence adduced in his subsequent trial, according to the Chief Justice, "Will be admissible providing it is relevant to the subsequent charge or to a defence to it, must only be allowed to be used to support that charge or negative a defence." Such evidence, "May not be used for the purpose of challenging or diminishing the benefit to the accused of the acquittal." The evidence here indeed seems to fall into both categories, firstly, it would be evidence sought to be used to support the charge that Mr Chanthovixay was the person who fired the gun on the earlier occasion. IN that way it would be admissible under his Honour's ruling. ON the other hand to allow the evidence to be used in that manner, must necessarily diminish the benefit to Mr Chanthovixay of the fact of his acquittal of the charge part of which alleges him being armed with that particular weapon. On that basis it would not be admissible. Public policy requires that a prosecution for a serious crime should proceed without undue hindrance, but public policy also requires that an accused person must be entitled and to receive a fair trial. These are all tensions that exist within this present situation. The Chief Justice continues in the passage that if the evidence is adduce din the subsequent trial then the Judge presiding over the trial must warn the jury very clearly, that they cannot use the evidence in the latter trial in any way to reconsider the guilt of the accused in the earlier trial, or to question to discount the affect of the acquittal. If this evidence were to be admitted in the current trial, I am unable to see any way in which a jury despite direction, would fail consciously or unconsciously to give the evidence some affect which would discount the acquittal of the earlier offence. When I add that conclusion into the balance of the tensions set out above, the scales in my view tip in favour of the exclusion of the evidence. The earlier acquittal is to remain intact and to call evidence to show that it is in effect wrong would be to crate a situation that would undoubtedly deprive, challenge, or diminish the accused of the benefit of that earlier acquittal. Accordingly, on the second basis I also uphold the objection by Mr Higgins. From the material I have set out in the foregoing reasons, I have no doubt in reaching a view that even if the two foregoing conclusions are wrong, there is sufficient in that reasoning to result in the evidence and the probative value of that evidence being outweighed by the danger that the evidence would be unfairly prejudicial to the accused because the jury would in my view, with high probability misuse the evidence in reconsidering the role played by Mr Chanthovixay in the earlier offence. Indeed, as addressed during the course of his submissions, to call that evidence in this trial is in fact to directly contradict the result of the earlier offence and the jury could only accept the evidence of his possession of the gun, if they accepted the fact that he was there at the time, that the aggravated break and enter with intent offence was committed and conducted himself in accordance with the allegations of that offence. The Crown did not with respect, adopt that analysis of the matter but to my mind, it is a correct and logical analysis of how the consequence of the evidence would flow. Section 135 of the Evidence Act subs (B) also refers to misleading or confusing evidence and it is my view that the type of direction that would need to be given to the jury that they cannot reconsider the earlier acquittal involving the use of the gun, but that they must find that he had the gun on the earlier occasion, albeit he has been acquitted of having the gun, in order to find that that was the gun that was used on the first occasion and conclude that he was the holder of the rifle when it fired the shot on the earlier occasion, seems to me to produce a situation where there is a substantial danger that the evidence would be misleading or confusing to a jury. 47 Before I turn to consider the correctness of his Honour's decision, it is appropriate to say a little more about the proceedings before Judge Payne. In the trial, only one witness, Mr Crosby, was called before the jury. He said that when he arrived the screen door was a bit damaged and he was hit from behind and had his elbow broken. It may be he said that he was hit with a pole. He saw a gun but he could identify no-one. Apart from police officers who arrived after the offences were said to have occurred, one other witness who said that he had been present at the time was called on the voir dire and the tenor of his evidence was that he could not remember anything of importance, and could not recognise the Accused. Messrs Ma apparently did not attend. Although police could say that the Respondent was present when they arrived they did not see any relevant offending. 48 In these circumstances it is obvious that before Judge Payne the Crown could not prove against the Respondent any of the elements of breaking, entering (except with consent), or the intent to commit a serious indictable offence. They could not prove that the Respondent was involved in any of the circumstances said to constitute aggravation or special aggravation. 49 It should also be noticed how limited is the evidence of Messrs Ma which the Crown seeks or needs to call before Judge Bell. It is simply that the Respondent arrived at the Ma premises on 7 October 2002 in possession of the rifle and that he retained custody and possession of it until after the police sirens were heard. It is only the Respondent's possession of the rifle which is of relevance in proving that he also had it or was present on the occasion involving Mr Muller. That on 7 October the Respondent may have broken and entered the Ma premises, or had any particular intent when doing so, or ransacked those premises or was hunting for one of the occupants are matters which are entirely irrelevant to the issues in the trial before Judge Bell. Nor is evidence of those matters necessary to put the evidence of the Respondent's possession of the rifle into perspective. 50 At one stage Judge Bell seems to have understood the limited nature of the evidence required for he said:- "All you want out of that is that on a specific date at a specific place this accused had in his possession a firearm that was subsequently tested and shown to be ballistically the same as the one that was discharged." 51 Unfortunately the Crown Prosecutor then complicated the matter. Following the remarks just quoted, the transcript records:- "Crown: Correct and the fact that he had it in his possession and used it, it'd be very, very artificial to be able to lead the evidence without the possession and keeping it and proffering it your Honour. HH: No I don't think you could start going past what I just outlined if you get to that point because… Crown: Your Honour that is going to present enormous artificial problems and practical problems in presenting the evidence, and if one goes to Storey's case…" 52 The decision in R v Storey makes it clear that the fact that evidence may tend to prove the commission of one offence by a person on trial, even if that offence has been tried and resulted in an acquittal does not make that evidence inadmissible in a later trial for a different offence, but that that evidence cannot be used for the purpose of challenging, or diminishing the benefit to that person of, the acquittal. Once the limits on the purpose and extent of the evidence appropriate from the Messrs Ma is appreciated, it is clear that that evidence was admissible in the trial with which Judge Bell was concerned and that it in no way tended to challenge or diminish the benefit to the Respondent of his acquittal before Judge Payne. Accordingly there is nothing in the principle for which R v Storey stands as authority which argues against the admissibility of the evidence to which I have referred of the Respondent's possession of the rifle on 7 October. 53 As I have said, it is not clear whether Judge Bell regarded the evidence of the Respondent's possession of the rifle on 7 October as sufficiently proximate in time to the events of 20 and 21 September 2002 as to make that evidence relevant. There is no doubt that it is sufficiently proximate and relevant. 54 Nor is there any basis for concluding that the evidence to which I have referred of possession of the rifle on 7 October should be excluded pursuant to the terms of ss135 and 137 of the Evidence Act. I appreciate that decisions under those sections involve elements of judgment or discretion and that the mere fact an appellate judge may have reached a different conclusion is not sufficient to say that the decision of a judge at first instance was wrong. However, that limitation has no application in a case such as this where there is, as I have said, no basis for excluding the evidence. 55 Obviously, once the evidence of the Respondent's possession of the weapon on 7 October is admissible, so is ballistic evidence tending to show that it was that weapon from which a bullet was fired at the time Mr Muller said he was abducted. 56 So that there is no doubt about the matter I may perhaps add that although I have said that the evidence of the Respondent's possession of the rifle until the police sirens were heard is admissible, I do not mean to indicate that that the trial judge must admit the evidence of the hearing of the sirens. Evidence as to the Respondent's actual ceasing to hold the weapon may be able to be given in some other manner although, obviously – at least on the evidence before this Court - any such alternative should not prejudice the Crown by, for example, leaving open the possibility that the Respondent simply returned it to someone having, vis-a-vis the Respondent, a higher claim to it. 57 It may be, for example, by way of admission that some other method of placing the relevant material before the jury such as an admission by the accused can be affected. But wether that be so or not, the Crown is entitled to have before the jury in evidence, indicating as fully as the statements of Messrs Ma indicate the Respondent's involvement with the rifle. 58 Furthermore, I make it clear that in this part of my reasons I have been dealing with the Crown's application to adduce the evidence of possession of the weapon on 7 October. I have not directed attention to what topics counsel for the Respondent may wish to raise in cross-examination of Messr Ma. However, at least so far as they arise out of the statements of those persons as to what occurred on 7 October, they do not affect the admissibility of the evidence Messrs Ma can give of the Respondent's possession of the weapon. 59 There are a couple of other matters to which I should refer. It was submitted by Mr Higgins that the Court would need to be satisfied beyond reasonable doubt that the piece of tape was in the boot during the abduction or that the evidence of that tape could satisfy a jury to that standard. I do not agree that that is the test for admissibility. 60 The orders I propose are:- 1. The appeal is allowed. 2. Set aside the decision of Judge Bell on 21 May 2004 dealing with the topic of adhesive tape. 3. Adjudge that evidence of the finding of adhesive tape in the boot of motor vehicle DK-128 on 21 September 2002 and of that tape and of the presence of the DNA thereon and as to the comparison of that DNA with the DNA of the Respondent is admissible. 4. Set aside the decision of Judge Bell on 24 May 2004 dealing with the topic of events occurring on 7 October 2002 in a house in Canley Vale. 5. Adjudge that evidence of the Respondent's possession of a firearm on 7 October 2002 in a house at Canley Vale is admissible. ********** Last Modified: 08/18/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.