Supreme Court New South Wales Medium Neutral Citation: Rice v R (No 1) [2014] NSWSC 1400 Hearing dates: 9 October 2014 Decision date: 14 October 2014 Jurisdiction: Common Law Before: Bellew J Decision: The notice of motion is dismissed. Catchwords: EVIDENCE – accused indicted for conspiracy to murder – evidence of accused's DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested - whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence Legislation Cited: Evidence Act 1995 Cases Cited: Ainsworth v Burden [2005] NSWCA 174 El Bayeh v The Queen [2011] VSCA 44; (2011) 208 A Crim R 541 R v Helmling (NSWCCA 11 November 1993 unreported) R v Lobban [2000] SASC 48 R v Slattery [2002] NSWCCA 367 R v Yates [2002] NSWCCA 520 Category: Principal judgment Parties: Colin Ray Rice – Accused Regina – Crown Representation: Counsel: Mr C Watson – Accused Mr P Barrett - Crown File Number(s): 2012/380633 Judgment Judgment THE APPLICATION 1. Colin Ray Rice ("the accused") has pleaded not guilty to an indictment alleging that he conspired to murder Dusan Krstic. His trial, and those of three co-accused, is to commence before me on 20 October 2014. 2. In support of its case, the Crown relies upon evidence of the presence of the accused's DNA on a cigarette butt found in an abandoned Holden Station Wagon ("the vehicle") said to have been used by the accused in the course of the alleged conspiracy. By notice of motion dated 8 October 2014 the accused seeks the exclusion of that evidence. THE EVIDENCE IN SUPPORT OF THE APPLICATION 1. The following material was tendered by counsel for the accused in support of the application: 1. a statement of Michael Billingsley dated 10 January 2013 (Ex A); 2. the field notes of a crime scene examination conducted on 1 October 2007 (Ex B); 3. an extract from an exhibit book numbered D474498 (Ex C); 4. a statement of Constable Graeme Sandersan dated 9 January 2013 (Ex D); 5. a statement of Hilda Tremaine, Senior Crime Scene Officer, dated 20 December 2012 (Ex E); 6. a copy of COPS event E31630066 pertaining to the theft of the motor vehicle (Ex F); 7. a series of photographs of the relevant vehicle taken by police (Ex G); and 8. copies of documents produced on subpoena pertaining to the analysis conducted of the cigarette butt (Ex H). 1. The Crown tendered the following material: 1. a statement of Christopher Sawyer dated 8 October 2014 (Ex 1); 2. a statement of Amber Minchin (nee Bullock) dated 8 October 2014 (Ex 2); and 3. a copy of the Crown Case Statement (Ex 3). 1. It should be noted that Exhibits C, D, E and 1 (and, to a limited extent, Ex 2) related to the continuity of the cigarette butt following its seizure. After the commencement of the hearing, counsel for the accused abandoned reliance upon that issue in support of the application. THE CROWN CASE 1. In order to put the application into its proper context it is necessary to set out the terms of the Crown Case Statement (Ex 3) which has been filed in the proceedings: "Throughout 2006 Zoran Bubanja and Dragan Sekuljica and Dusan (Dutsa) Krstic were close associates. They subsequently had a dispute over money. This created tension between them and led to a major feud and falling out. Dragan Sekuljica and Krstic remained close friends and associates. A person who shall be referred to by the pseudonym Johnny Radz ("Radz") met Zlatan Popovic in 2000. They were good friends. Popovic introduced Radz to Krstic at Mama's Pizza sometime after April 2006. Popovic and Krstic were close associates at that time. On Good Friday in April 2007, Popovic attended Radz's house in Yagoona and told him that he had had a falling out with Krstic and was now with Zoran Bubanja. Radz will provide evidence that Zoran Bubanja considered Dragan Sekuljica and Krstic "dogs" and could not wait for them to get out of gaol so he could "knock" them. It is alleged that Popovic said to Radz: "Listen I spoke with Zoran ...I have found out that that Zoran and I are pretty much related when you go back through it all. Zoran likes you and I agree. We have agreed you should do the job, the price is ... $45,000 for Dusan. Are you interested?" Radz told Popovic that he had just married and wanted to stay out of gaol. Popovic responded "All good, just think about it". Radz was taken into custody for unrelated matters in June 2007. Between 8th September, 2007 and 22nd September, 2007 and following the shooting murder of Dragan Sekuljica on 8/9/2007, it is the Crown case that the accused Popovic asked a person who shall be referred to by the pseudonym Peter Taylor (Taylor) if he was interested in "knocking" Kristic. It is alleged that Popovic said to Taylor, "Dutsa is next, if you're keen. The money being offered for the big fella is $250,000 to knock him and $150,000 for each year if you get caught and do jail". Taylor will give evidence that he replied: "Okay, I'll let Doc (Kolomatangi) know". At a later meeting, Taylor advised Koloamatangi of Popovic's request regarding Dusan Krstic. It is the Crown case that Popovic then organised for Taylor to meet up with an associate, (the accused) Radomir Vukovic. Following that meeting, Vukovic drove Taylor, firstly to a cafe in Redfern which Kristic owned, and then later to Toongabbie in a red Toyota Rav 4 Motor vehicle. The address at Toongabbie was a house where Krstic was believed to be staying. On their return, Taylor claims that Vukovic supplied him with an antique pistol. As the pistol was only an antique, Taylor approached Popovic about getting something better and bigger and suggested an automatic. Taylor claims that he later met Popovic who supplied him with a SKS rifle in a car-park at McDonalds at Engadine. This meeting is corroborated by Taylor's associate Luis Montero, although Montero claims the meeting occurred at the car-park of the neighbouring Heathcote McDonalds. Lawfully obtained telephone intercepts on Popovic's mobile phone detail relevant contact between Popovic and others and place this meeting on 22/9/2007. A meeting followed between Taylor and Koloamatangi at the latter's home at Mascot and steps were then taken to locate Dusan Krstic. It is the crown case that Taylor and Koloamatangi then teamed up with an associate of Koloamatangi's, the accused person Colin Rice, who agreed to store the antique pistol, the SKS rifle and another pistol that Koloamatangi had acquired, at Rice's girlfriend's place at Westmead. Rice then organised the theft of a blue Toyota van and later, a red Holden station wagon which were used for the purposes of surveillance and to carry the gunman Koloamatangi to and from the address at Toongabbie where they believed Krstic to be staying. These two vehicles were later abandoned in streets nearby to the house in Toongabbie at locations later identified independently by Taylor to police. The DNA of Rice was later located on a cigarette butt found in the Holden station wagon. A friend of Dusan Krstic, Dragan Krstic (same surname but no relation) who owned the premises at Toongabbie, later made a statement to police confirming that in the days following the funeral of Dragan Sekiljica, Krstic would come to his house during some evenings, but never stayed overnight. It is the crown case that Taylor, Rice and Koloamatangi drove to the Toongabbie address with the loaded firearms waiting for the opportunity to shoot Krstic. Between 8/9/2007 and 4/10/2007, Taylor, Koloamatangi and Rice, were actively seeking out Krstic for the purpose of providing the opportunity for Koloamatangi to shoot that person, firstly at Toongabbie and then later, after 28/9/2007, at the cafe at Redfern. Taylor will give evidence that he and Koloamatangi (and another male) conducted surveillance on at least three (3) occasions on the cafe at Redfern, but were unable to sight or locate Krstic. On at least two of those occasions they were armed. The plan was abandoned a few days prior to 4/10/2007 as Taylor and Koloamatangi couldn't locate Krstic. Radz was released from custody in October 2007. Radz visited Popovic in Wollongong around October 2007. Lawfully obtained telephone intercept product confirms they met on 23 October 2007. It is alleged that Popovic told Radz that Dusan was next, and he is trying to organise it. He again offered the job to Radz, which Radz declined as he had a new born daughter and did not want to go back into gaol. Popovic said that he understood but told Radz to think about it. In June, 2012, Taylor made a series of induced statements in relation to the planned murder of Dusan Krstic. Prior to this disclosure by Taylor, the police were not aware of the plan to murder Krstic. Each of the accused were arrested in late 2012. Only Rice participated in an ERISP and denied any involvement in the offence. Taylor was granted indemnity by the Attorney General of NSW in February 2013 in exchange for his evidence in relation to the Conspiracy to Murder Dusan Krstic. Radz was granted an indemnity in exchange for his evidence in April 2014." THE DNA EVIDENCE 1. On 27 September 2007 Michael Billingsley, who was the owner of the vehicle, reported it stolen to police. The vehicle was recovered on or about 30 September 2007. When notified of its recovery, Mr Billingsley went to view the vehicle. At paragraph 7 and following of his statement he said: "…I also noticed a cigarette butt, and other related items (lighters and lighter fluid) in the car. 8. Given that neither my wife nor I smoke, nor had we allowed anyone to smoke in the vehicle for the period that it was owned by me, I contacted the Forensic Officer and advised that the cigarette butt and smoking related devises (sic) had been placed in the car after it was stolen. 9. The officer told me that they were out on another job, but would come back to collect them. There was (sic) other items located in the rear of the vehicle that were not ours (my recollection is blankets), however the Forensic Officer advised that these were of no use to them, as prints could not be recovered from those items. 10. The lighter fluid was found in the glove box, and one of the lighters was on the floor next to the front passenger seat. My recollection was that the other lighter and any cigarette butts were in the rear of the vehicle. 11. We closed the vehicle and left it unlocked so the officer could access it when they (sic) returned. My wife and I left the vehicle parked…This is the last occasion that I recall seeing the vehicle." 1. On 1 October 2007 Ms Minchin, who was then a police officer, attended the vehicle. Her field notes of that day (Ex B) record the following: "Attended location again after phone call from Vic – he had located lighter fluid and a cig butt not belonging to him. * DNA * Item 1 1 x cig butt lock front passenger floor. TC 1340 DNA 22/D474798 6(N) 7(N) Passenger side floor (front)." 1. Those notations were accompanied by a small diagram depicting the area within the vehicle in which the cigarette butt was found. 2. In paragraph 7 of her statement (Ex 2) Ms Minchin explained how she found the cigarette butt: "I examined the interior of the vehicle and located one cigarette butt within a Red Rooster bag on the front passenger floor of the vehicle. I nominated the cigarette butt as item 1. I placed a completed physical evidence label next to the cigarette butt and took a number of photographs. I collected the cigarette butt and placed it into an exhibit bag. I sealed and labelled the bag under forensic case number 1899553. The time it was collected was 1:40pm, referred to in my case notes as "KTC1340". 1. The photographs taken by Ms Minchin are Ex G. They depict (inter alia) a pile of rubbish on the front passenger side floor of the vehicle, including the "Red Rooster" bag to which Ms Minchin referred in her statement. The cigarette butt can be clearly seen within that pile. For reasons which are not explained Ms Minchin seized the cigarette butt but not the remaining items of rubbish. 2. The relevant COPS entry (Ex F) noted the following: "A clear point of entry could not be established as locking mechanisms were still intact. There was damage to the ignition and all the wires were hanging out and(the) barrel missing. On police arrival all windows and doors were opened including the boot of the vehicle. Besides for (sic) the damage to the locking mechanism there seems to be no further damage to the vehicle caused when it was being stolen. …… Also, when police arrived to locate the vehicle, all windows and doors to the vehicle were open. Therefore it could be argued by the POI that he walked past the parked vehicle and threw the cigarette butt inside the vehicle as he did so". 1. On 3 October 2007 Mhorag Campbell, a Forensic Biologist employed by the NSW Forensic and Analytical Science Service, received the cigarette butt. On 24 December 2012 she received a buccal sample which had been taken from the accused. Having conducted an analysis Ms Campbell expressed the following opinion in a certificate dated 14 January 2013 (part of Ex H): "The DNA recovered has the same profile as Colin Ray RICE (barcode XPS00204307). Traces of DNA from at least one other individual were also recovered but at levels too low to determine a profile." 1. Under the heading "Expected in occurrence in general population" Ms Campbell reported: "Fewer than 1 in 10 billion individuals". 1. It is agreed between the parties that the cigarette butt was destroyed at some time between 1October 2007 and August 2008. SUBMISSIONS OF THE PARTIES SUBMISSIONS OF THE ACCUSED 1. Counsel for the accused submitted that the evidence of the DNA analysis of the cigarette butt should be excluded, either pursuant to s. 137, or alternatively pursuant to s. 135, of the Evidence Act 1995 ("the Act"). That submission was advanced on three bases. 2. Firstly, counsel submitted that the destruction of the cigarette butt deprived the accused of the opportunity to have it independently tested. It was submitted that this created an unacceptable risk that the jury would ascribe undue weight to the evidence and that no direction, irrespective of the terms in which it might be given, would be sufficient to ameliorate the prejudice which would arise as a result. Counsel further submitted that such prejudice was heightened by the fact that apart from the evidence of the witness Taylor, the evidence of the accused's DNA on the cigarette butt was the only evidence linking him to the car that was allegedly used in furtherance of the conspiracy. 3. In advancing this submission, counsel referred me to a number of decisions in which evidence had been lost or destroyed, resulting in an accused person losing the opportunity to test or examine such evidence. Counsel submitted that in the present case, the danger of unfair prejudice outweighed the probative value of the evidence because the accused had been permanently deprived of an opportunity to explore an avenue of inquiry which might have led to his acquittal. 4. Secondly, counsel submitted that there was a clear possibility that the evidence had been contaminated. He pointed out, in particular, that Mr Billingsley had reported the vehicle stolen on the evening of 27 September 2007 and that it was not located by the police until 3 days later. He also relied upon the fact that according to the COPS entry all of the windows and doors of the vehicle were open when it was first found by the police. 5. Thirdly, counsel submitted that the danger of unfair prejudice arose because the police, for reasons which remain unknown, had not seized and analysed the other items contained in the rubbish pile found on the passenger side floor of the vehicle. Counsel submitted that the police investigation had not been conducted completely or appropriately, as a consequence of which it now became a "guessing game" for the accused as to how those items came to be in the vehicle. 6. In the event that I came to the conclusion that the evidence should be admitted, counsel submitted that I should, in due course, direct the jury in respect of the disadvantage at which the accused had been placed as a consequence of the destruction of the cigarette butt. 7. It should be noted that in answer to a specific query from me, counsel for the accused made it clear that he would mount no direct challenge to the reliability of the DNA evidence. He also made it clear, at least as far as his second and third submissions were concerned, that he was not basing his application on the proposition that the evidence, if admitted, would be liable to be misused by the jury in some way. In that latter respect counsel said (at T10 L8): "It's not a misuse of that actual evidence. The unfairness arises because the other aspects that are relevant to the inquiry weren't investigated; those aspects being that the material that was fully available in the motor vehicle was not gathered and you might think that a prudent forensic officer, scientific officer, trained in that area would have gathered all of that type of material for analysis. Officer (Minchin's) new statement doesn't reflect what is in the COPS entries and it doesn't reflect what is said in the statement of the owner of the motor vehicle, Mr Billingsley." SUBMISSIONS OF THE CROWN 1. The Crown submitted that notwithstanding the destruction of the cigarette butt, the opportunity for the applicant to properly test the evidence had not been lost. He submitted that it remained open to the applicant to examine the records of the laboratory produced under subpoena (Ex H) and test, in the course of cross-examination, the process used to extract, analyse and profile the DNA. The Crown submitted that it remained open to the accused to avail himself of this opportunity with the assistance of an independent expert if he wished to do so. 2. As to the second and third bases of the application, the Crown submitted that it remained open to counsel for the accused to cross-examine Ms Minchin, and any other relevant witness, about the circumstances in which the vehicle was found, as well as the circumstances in which the cigarette butt was seized. The Crown submitted that there was similarly no restriction upon counsel cross-examining Ms Minchin about her failure to seize the other items in the vehicle. All of these matters, the Crown submitted, were able to be the subject of counsel's address to the jury. 3. It was submitted that in all of these circumstances, no danger of unfair prejudice arose and the evidence should be admitted. The Crown did not argue against the proposition that in that event, it would be appropriate to direct the jury as to the disadvantage at which the accused had been placed as a consequence of the destruction of the cigarette butt. THE RELEVANT STATUTORY PROVISIONS 1. Section 135 of the Act is in the following terms: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. Section 137 is in the following terms: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. CONSIDERATION 1. The primary submission of counsel for the accused was that the evidence should be excluded pursuant to s. 137. In the event that I declined to do so, counsel invited me to consider the provisions of s. 135. The terms "unfairly prejudicial" (in s. 135) and "unfair prejudice" (in s. 137) mean the same thing: Ainsworth v Burden [2005] NSWCA 174 per Hunt AJA, (Handley and McColl JJA agreeing). 2. Section 137 mandates the rejection of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The term "probative value" is defined in the Dictionary to the Act in the following terms: "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 1. Along with other evidence relied upon by the Crown, the evidence of DNA analysis, if accepted, is capable of placing the accused in the vehicle which, on the Crown case, was used for the purposes of surveillance as well as for the purposes of carrying the alleged gunman to and from the address of the target of the conspiracy. In these circumstances, the probative value of the evidence is high. I did not understand counsel for the accused to argue to the contrary. 2. For the purposes of s. 137, the danger of unfair prejudice may arise in a variety of ways, including where the admission of the evidence may lead to the jury misusing it by (for example) adopting an illegitimate form of reasoning, or giving it undue weight: R v Yates [2002] NSWCCA 520 at [252] per Wood CJ at CL, Hulme and Buddin JJ agreeing. 3. For the reasons that follow I am unable to accept the submissions of counsel for the accused that the evidence should be excluded. 4. I turn firstly to the danger of unfair prejudice which is said to have arisen from the destruction of the cigarette butt. What the accused has lost as a consequence of that destruction is the opportunity to have the item independently examined and tested. In other words, he has lost the chance to explore an avenue of enquiry. What the results of any such testing may have been are not known. Whether the result would have directly contradicted the proposition that the accused's DNA was found is a matter of speculation: R v Helmling (NSWCCA 11 November 1993 unreported. 5. Importantly, the accused has not lost the opportunity to challenge the evidence of analysis. The laboratory notes of the process of extraction and profiling of the DNA are available. It remains open to the accused to test the analysis conducted by Ms Campbell. As the Crown pointed out, it is open to him to do so with the assistance of an independent expert. 6. In all of these circumstances, the destruction of the cigarette butt does not give rise to a danger of unfair prejudice which outweighs the probative value of the evidence. I am fortified in that view by the observations of Nettle JA (with whom Neave and Tate JJA agreed) in El Bayeh v The Queen [2011] VSCA 44; (2011) 208 A Crim R 541 at [36]; 552-553: "Self evidently, the destruction of the liquid and the equipment denied the applicant the opportunity (in which he had previously expressed no interest) of examining the liquid and the equipment. Logically, the denial of that opportunity entailed the possibility of prejudice to the applicant. But in view of the authorities to which I have referred, that is as far as it goes. As has been seen, the possibility of prejudice of that kind – the kind of prejudice which Redlich JA referred to in Aydin as "presumptive prejudice" – is not sufficient for present purposes. As the High Court determined in Edwards, and the South Australian Court of Appeal in Lobban made clear, the loss of evidence cannot be characterised as occasioning prejudice to an accused person for the purposes of a stay or exclusion application unless it is known what the evidence would have shown. More precisely a trial is not rendered unfair by reason only that evidence of which it cannot be said whether it would have assisted the accused or the Crown is no longer available" (emphasis added). 1. Although his Honour was considering the authorities in the context of an appeal against a refusal to grant a permanent stay of a trial, it is clear that his observations extended to an application of the nature of that presently made by the accused. As a consequence, such observations are instructive. 2. R v Lobban [2000] SASC 48 was one of the authorities to which Nettle JA referred. In that case Martin J (with whom Doyle CJ and Bleby J agreed) noted (at [22]; 29) that the submissions made to the primary judge had been directed to the discretionary exclusion of the evidence in question. His Honour then said (at [24]; 29): "The destruction of the material did not, without more, lead to an inference that the evidence ….. was unreliable. …. While the ability of the defence to challenge the reliability of the evidence of identification was hampered, the evidence remained capable of probative weight and was therefore admissible." 1. In R v Slattery [2002] NSWCCA 367 the Court of Criminal Appeal considered the admission, over objection, of ballistics evidence in circumstances where the relevant firearm had been destroyed. Having admitted the evidence, the trial judge made reference, in his summing up, to the fact that the appellant was disadvantaged by the destruction of the firearm. Smart AJ (with whom Hodgson JA and Hidden J agreed) found (at [81]-[82]) that what the trial judge had said to the jury in the course of his summing up had failed to emphasise, and had in fact understated, the disadvantage to which the appellant had been put as a consequence of the destruction of the evidence. Importantly however, it was not suggested, and the Court did not conclude, that the evidence had been wrongly admitted. Rather, the conclusion was reached that a far more comprehensive direction had been required on the part of the trial judge: see [86]; [93-96]; [112]. 2. In the present case: 1. the reliability of the evidence is not challenged; 2. the accused retains an opportunity to test the evidence in any event; and 3. the parties agree that it is open to direct the jury as to the disadvantage at which the accused has been placed as a consequence of the destruction of the evidence. 1. In these circumstances, and bearing in mind that what the accused has lost is an opportunity, I am not satisfied that the destruction of the evidence results in the probative value of the evidence being outweighed by the danger of unfair prejudice. 2. Similarly, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice, either as a consequence of the circumstances in which the cigarette butt was seized or as a consequence of the fact that other items found in the vehicle were not seized. The suggested contamination of the evidence is necessarily speculative. To the extent that counsel wishes to pursue that issue he is free to do so, just as he is free to pursue the reasons why other items found in the vehicle were not seized. No doubt all of these matters will be canvassed in the cross-examination of Ms Minchin, and perhaps other witnesses called by the crown. Counsel will also have the opportunity to make submissions to the jury arising from that evidence. In these circumstances, I am unable to accept the submission that the evidence, if admitted, will assume "an air of infallibility". It is important to bear in mind that counsel for the accused (as set out in [22] above) expressly disavowed the proposition that the matters relied upon in respect of the second and third bases of his application gave rise to any danger of the evidence being misused by the jury if it were admitted. 3. Further, and for substantially the same reasons, the circumstances of the present case do not warrant the exercise of the discretion contained in s. 135 to exclude the evidence. The probative value of the evidence, which I regard as significant, is not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. 4. I will hear the parties further in due course as to the form of an appropriate direction, the essence of which was considered by the Court in Slattery (supra). ORDERS 1. For the reasons I have given the evidence should not be excluded. 2. Bearing in mind the fact that the accused is yet to stand trial, this judgment should be suppressed until such time as his trial is concluded. 3. I therefore make the following orders: 1. The notice of motion is dismissed. ********** Amendments 12 November 2014 - Renumbering Amended paragraphs: 46 11 February 2021 - Pseudonyms inserted 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. Decision last updated: 11 February 2021