R v Gordon (No 4) [2016] NSWSC 312

Supreme Court New South Wales

Medium Neutral Citation: R v Gordon (No 4) [2016] NSWSC 312 Hearing dates: 29 February 2016; 1, 2, 3 March 2016 Date of orders: 03 March 2016 Decision date: 03 March 2016 Jurisdiction: Common Law Before: Campbell J Decision: Evidence of usual practice and a demonstration by Senior Constable Vercoe are admissible Catchwords: CRIMINAL LAW – evidence – evidence of usual practice – admissible as evidence of what usually done CRIMINAL LAW – evidence – demonstration of usual practice – whether unfairly prejudicial – where demonstration to be short Legislation Cited: Evidence Act 1995 (NSW) Category: Consequential orders (other than Costs) Parties: Regina (Crown); Donald Patrick Gordon (Accused) Representation: Counsel: Mr J McLennan SC (Crown); Mr J Watts (Accused)

Solicitors: Director of Public Prosecutions (NSW) Aboriginal Legal Service (NSW/ACT) File Number(s): 2013/337128 Publication restriction: Non publication order

EX TeMPORE Judgment (REVISED) 1. Before the jury were discharged this morning, Senior Constable Aliesha Vercoe was giving her evidence in chief. She is a police officer attached to the forensic services group and is a crime scene examiner whose duties include the examination, recording, and interpretation of scenes of alleged crimes and other incidents. Her duties extend to the collection, preservation and, in some cases, forensic examination of physical evidence from such scenes. 2. At the conclusion of yesterday's proceedings the learned Crown Prosecutor indicated that he proposed to call evidence from Senior Constable Vercoe involving first, a demonstration of the ease with which her personal protective equipment can be donned and discarded, and, secondly, of her usual practice in carrying out the process of examining, recording, collecting and preserving items of interest at a crime scene. 3. Mr Watts objects to evidence in that form. He objects to the proposed demonstration on the grounds of relevance and if I am against him on that, alternatively he applies to have the evidence excluded as unfairly prejudicial. So far as the evidence of her usual practice is concerned, he objects to that on the grounds of relevance and argues that the witness should be restricted to giving evidence of what she now actually recalls of events that she saw, heard or otherwise perceived during her attendance at this particular crime scene. 4. A major issue in the case is whether the accused, Mr Gordon, struck the deceased, Mr Cotter, a number of times with a large rock weighting approximately 21 kilograms found at the crime scene during Senior Constable Vercoe's inspection. She took samples of blood and conducted other testing at the scene in relation to this boulder and I am informed that other expert evidence led later in the trial will demonstrate that the red fluid on the boulder is blood, and it is the blood of Mr Cotter. Samples taken from parts of the rock not blood stained revealed the trace DNA of Mr Cotter, Mr Gordon and of a third person. 5. I should interpolate that Mr Gordon accepts that he did injure Mr Cotter on the evening of 6 or 7 November 2013 by running him over with his car but he denies bashing him with the rock. DNA testing and the like was carried out in relation to the motor vehicle and I am informed that an expert will say that there was a mixture of DNA on the steering wheel, handbrake and gear shift being a mixture of the DNA of Mr Gordon and Mr Cotter. The Crown will argue the jury should accept that matter was deposited on those things after Mr Gordon handled the body of Mr Cotter after bashing him with the rock. 6. There is an issue whether the traces of DNA of Mr Gordon, in particular on the rock, were deposited there as a result of the phenomenon of secondary transfer. In this regard Mr Watts has made clear that he proposes to cross-examine Senior Constable Vercoe, as he did at the committal proceedings, to expose facts which the jury might think suggest that she could have been the source of secondary transfer of Mr Gordon's DNA onto the rock. 7. This cross-examination will proceed on a number of fronts, if one has regard to what was put to her at the committal. There is the obvious difficulty for any witness remembering precisely what happened on a given workday. To my mind that is understandable given that to a person in her position the events which the jury might find extraordinary are a matter of routine. It is easy to understand why a person in that type of job would have difficulty recalling what happened on a given job. Moreover it was put that as she cannot recall, she could not be sure that on this job she observed the strict practice that should be followed for the purpose of preserving the evidence in an uncontaminated state. This line of cross-examination no doubt is to lay a foundation for putting to the jury that they should have a doubt about it. 8. Other matters include the fact that she arrived there in the afternoon, the job took several hours and as she went through the process of her work night was falling. She was under some pressure to finish the job and that that pressure might have led to mistakes or departures from preferred practice. 9. Now, I doubt very much whether the Senior Constable will accede to those propositions but we shall see. But whether she does or not, the fact that she is tested in that way will again leave it open to learned counsel to submit to the jury that they cannot be sure about these things which may therefore give rise to a reasonable hypothesis consistent with the innocence of Mr Gordon in what is, at least so far as the question of whether he bashed Mr Cotter with the rock is concerned, an entirely circumstantial case. 10. I have taken this time to define the issue because the fundamental question of admissibility in all court proceedings is the question of relevance. Section 56 of the Evidence Act 1995 (NSW) provides the basic rule that evidence that is relevant in the proceeding is admissible in the proceeding and evidence which is not, is not admissible. Relevance is defined broadly. Evidence is relevant which, "if it were accepted could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding". However one puts it, a fact in issue in the proceeding is whether the DNA of Mr Gordon was deposited on the rock because he used to bash Mr Cotter or by misadventure during the course of the forensic examination carried out by the police. 11. As a broad proposition, the evidence which demonstrates that there are protocols which are followed to guard against the obvious, and therefore very foreseeable possibility, of accidental contamination during the course of the investigation is relevant because the existence of those protocols coupled with other evidence is capable at least indirectly of proving or disproving the fact in issue in this case, that is, the question of secondary transfer during the investigation. 12. Obviously if the officer could say, "I remember this case very well and I can tell you that I punctiliously followed every step in the protocol in actual fact on that day" there could be no difficulty with the admission of that evidence. It would be direct evidence based upon her actual perception of events that occurred on the day. However that is not the end of the matter. Courts are familiar with the phenomenon of persons engaged in ongoing tasks which to them by virtue of their repetition are not memorable giving evidence. The problem presented by the argument in this case is not novel. 13. In Connor v Blacktown District Hospital [1971] 1NSWLR 713, Jacobs JA (as his Honour then was) at page 716 said: "In my opinion, to say that evidence of practice is admissible to prove that a certain state of affairs existed on a particular day is to put the matter too broadly. I cannot give evidence of what other people did on a particular day because I have observed them doing it on other days. The particular rule is that I can give evidence of what I did on a particular day even though I have no distinct recollection of the particular day if it was part of my practice to do the act regularly." [Emphasis added.] Asprey JA put it somewhat differently at page 721 but largely to the same effect: "To prove that an act has been done, it is admissible to prove any general course of business or office whether public or private according to which it would ordinarily have been done. That being a probability that the general course would be followed in the particular case." [Emphasis added.] Mason JA (as his Honour then was) agreed with the approach of Asprey JA. 1. There is a slight difference between the formulations of Jacobs JA, on the one hand, and Asprey JA, on the other hand. Jacobs JA seems to suggest that the witness can say "I did this on that day because I always do it". On the other hand Asprey JA says that one can give evidence of one's general course of office which itself gives rise to "a probability that the general course would be followed in the particular case". 2. The difference may be slight but it is important. Evidence of a witness that "I believe I did this because I always do it", is of its nature inscrutable and, therefore, difficult to test. In my view the proper approach is that of Asprey JA, agreed to by Mason JA, which essentially treats evidence of practice as a species of circumstantial evidence. Evidence of practice lays a foundation for an inference that the practice was followed on a particular day. That is the proper basis of its admissibility. This seems to have been the approach adopted by Priestley JA, in WorkCover Authority of NSW v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 where his Honour referred to "circumstantial evidence, including the worker's statement of his habit of using seat belts, which supported an inference that he probably was wearing the seat belt at the relevant time" [Emphasis added.] 3. This basic principle which goes to admissibility, that is to say relevance, necessarily applies equally in civil and criminal cases although so far as criminal cases are concerned one would naturally have to have regard to the provisions of ss 135 and 137 of the Evidence Act 1995 (NSW). However it seems to me that there is no particular difficulty with allowing the officer to give evidence of her usual practice in the way I have outlined. 4. I would not however permit her to give evidence that because this was her usual practice she believed she did it on the day or she must have done it on the day or some other formulation which is really a conclusionary statement rather than evidence of what she saw, heard or otherwise perceived. 5. The learned Crown has argued that what I propose was the approach approved without question, certainly in the joint judgment, in the High Court in The Queen v Evans (2007) HCA 59; 235 CLR 521. Their Honours in that judgment accepted that the father and the brother of the accused ought to have been permitted to give evidence as to what his usual work practices were as to when he attended work, which would have provided effectively an alibi, if accepted; cf Connor at p 716. 6. Their Honours recognised that such evidence is open to challenge on many different bases, in the end resolving that whether the challenges worked is essentially a jury, and not an admissibility, question. 7. I will permit evidence of usual practice to be given by the witness but not of her belief that she complied with it on the day. 8. Next is the demonstration. This is to consist of a demonstration of the ease with which, as I have said, the usual protective clothing worn by crime scene examiners can be donned and later discarded. The ease with which something can be done is itself a relevant consideration when the jury are pondering the question whether it was in fact done on a given day. It is also circumstantial evidence. 9. As the decision in Evans amply demonstrates, and all the Justices agreed with Heydon J about this, evidence by way of demonstration is a very familiar part of the process of eliciting evidence in courts of law in civil and criminal matters. In personal injury cases witnesses suffering back injuries are frequently asked to demonstrate how far they can bend forward. In criminal cases distances are often described in evidence by reference to the unspecified distance between the witness box and the bar table, or the back of the courtroom. As the judgment of Heydon J amply demonstrates, all of these matters are in fact matters of demonstration. Evans also stands for the proposition that s 53 of the Evidence Act and accordingly s 192 relate only to out of court demonstrations. They are not intended to cover the type of simple every day demonstrations that I have referred to. 10. At [204] Heydon J pointed out by reference to the New Zealand case of The Queen v Barker [1989] NZ8C751; 3NZLR635 at 638, that: "Demonstrations are frequently given in the witness box both by ordinary witnesses and by professional witnesses such as medical or pathological experts. It is common for an ordinary witness by physical actions to support oral evidence of an observed action." 1. I am satisfied that what is proposed from the officer falls into that category. It is not proposed I hasten to add that the officer having donned her protective outfit will sit in the witness box and give the rest of her evidence resplendent in it. I make this observation because Mr Watts has legitimately referred to the dangers of the "white-coat effect": namely, that the evidence may be imbued with an unjustified air of authority imparting a degree of persuasiveness in the minds of the juror to which it may not be intrinsically entitled. On this basis he argues that I should exclude evidence of the demonstration because it may be unfairly prejudicial. That is to say, that the jury might use it in reasoning to their conclusions in the manner I have suggested as clothing the witness's evidence with uncalled for, with an unjustified air of authority. 2. Whilst this danger should always be guarded against there are, I think, answers to it. The demonstration is short, it will not be persisted in beyond the legitimate forensic purpose of demonstrating the ease with which the outfit may be donned and discarded. Accordingly, there will be little opportunity for the "white-coat effect" to work its insidious magic. Moreover, as in the case of all witnesses who give technical or expert evidence, the jury will be given directions designed to ensure that they treat the evidence in the same way as all other evidence in the case; that is to day to the extent to which it is contested it is to be evaluated and adjudged by them, according to their common sense; and it is not to be given any special authority just because it is technical or expert evidence. 3. Whether such a direction is called for might depend in this particular case upon the course of the evidence next week, but that is something no doubt counsel and I will be alert to. 4. For these reasons under s 192A Evidence Act 1995 and subject to the conditions I have expressed, I rule that the evidence of her usual practice and a demonstration by Senior Constable Vercoe are admissible.