R v White [2005] NSWSC 60

New South Wales Supreme Court

R v White [2005] NSWSC 60 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 14 February 2005

JUDGMENT DATE : 15 February 2005

Common Law Division JURISDICTION : Criminal List

JUDGMENT OF : Studdert J

DECISION : The evidence the subject of the challenge is to be admitted.

Crimes (Forensic Procedures) Act, ss 3, 82 LEGISLATION CITED : Evidence Act, s138

R v Kane (2004) 144 A Crim R 496 CASES CITED : R v Rondo (2001) 126 A Crim R 562

PARTIES : Regina v Clarence Herman White

FILE NUMBER(S) : SC 2004/2623

M.M. Cunneen (Crown) COUNSEL : S.S. Hanley (Accused)

Office of the Director of Public Prosecutions (Crown) SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service (Accused)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

STUDDERT J

Tuesday 15 February 2005

2004/2623 REGINA v CLARENCE HERMAN WHITE

JUDGMENT (Re: admissibility of DNA evidence) 1 HIS HONOUR: Clarence Herman White has pleaded not guilty on the presentation of an indictment charging him with the murder of Phyllis Jean O'Brien at Katoomba on 29 August 2003. The trial is to proceed before me sitting without a jury, and at the outset counsel informed the Court that there was a necessity for a ruling upon the admissibility of DNA evidence obtained on the analysis of a cigarette butt discarded by the accused at the police station at Katoomba. 2 The issue of the admissibility of the evidence of analysis involves consideration of the Crimes (Forensic Procedures) Act 2000. 3 Section 82 of that Act renders inadmissible evidence which has been obtained in circumstances contrary to the Act other than as provided for in s 82(4) and (5). 4 It is necessary for present purposes to set out the section, save for s 82(7) which only applies to jury trials: "(1) This section applies where: (a) a forensic procedure has been carried out on a person, and (b) there has been any breach of, or failure to comply with: (i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or (ii) any provision of Part 11 with respect to recording or use of information on the DNA database system. (2) This section does not apply if: (a) a provision of this Act required forensic material to be destroyed, and (b) the forensic material has not been destroyed. Note. Section 83 applies where this Act requires forensic material to have been destroyed. (3) This section applies: (a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and (b) to evidence of any results of the analysis of the forensic material, and (c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure. (4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless: (a) the person does not object to the admission of the evidence, or (b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or (c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child. (5) The matters that may be considered by the court for the purposes of subsection (4) (b) are the following: (a) the probative value of the evidence, (b) the reasons given for the failure to comply with the provision of this Act, (c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act, (d) whether the failure to comply with the provision of this Act was intentional or reckless, (e) the nature of the provision of this Act that was not complied with, (f) the nature of the offence concerned and the subject matter of the proceedings, (g) whether admitting the evidence would seriously undermine the protection given to suspects by this Act, (h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, (i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply, (j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law, (k) any other matters the court considers to be relevant. (6) The probative value of the evidence does not by itself justify the admission of the evidence." 5 The definition section in this Act is s 3 and it defines, inter alia, "forensic material", "forensic procedure", "intimate forensic procedure", "non-intimate forensic procedure" and "suspect". I set out these definitions: " 'forensic material' means: