R v MK [2012] NSWCCA 110

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v MK [2012] NSWCCA 110 Hearing dates: 15 May 2012 Decision date: 04 June 2012 Jurisdiction: Criminal Before: Hoeben JA at [1] Hidden J at [2] Beech-Jones J at [3] Decision: (1) Appeal allowed. (2) The judgment of Judge Nicholson SC, dated 19 March 2012, be set aside. Catchwords: CRIMINAL LAW - Evidence - appeal against interlocutory ruling - exclusion of DNA evidence - prejudicial - misleading. Legislation Cited: Crimes Act 1900, ss 61M(2), 86(1)(b) Criminal Appeal Act 1912, s 5F Evidence Act 1995, ss 55, 135, 137 Cases Cited: Aytugrul v R [2010] NSWCCA 272; (2010) 205 A Crim R 157 Aytugrul v R [2012] HCA 15; (2012) 86 ALJR 474 House v The King (1936) 55 CLR 499 Morgan v R [2011] NSWCCA 257 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Category: Principal judgment Parties: Regina (Appellant) "MK" (Respondent) Representation: Ms J R Dwyer (Crown) Mr J S Stratton SC (Respondent) Solicitor for Public Prosecutions (Crown) Public Defenders Office (Respondent) File Number(s): 2011/43255 Decision under appeal Date of Decision: 2012-03-19 00:00:00 Before: Nicholson SC DCJ File Number(s): 2011/43255

judgment 1HOEBEN JA: I agree with Beech-Jones J and the orders which he proposes. 2HIDDEN J: I agree with Beech-Jones J. 3BEECH-JONES J: This is an appeal by the Crown pursuant to s 5F(3A) of the Criminal Appeal Act 1912 from an evidentiary ruling of his Honour Judge Nicholson SC. After a voir dire, his Honour excluded certain "DNA evidence" sought to be relied on by the Crown. His Honour relied on s 135(b), 135(c) and s 137 of the Evidence Act 1995.