R v Gordon (No 5) [2016] NSWSC 315

Supreme Court New South Wales

Medium Neutral Citation: R v Gordon (No 5) [2016] NSWSC 315 Hearing dates: 7,8 March 2016 Date of orders: 08 March 2016 Decision date: 08 March 2016 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Question directed by Crown Prosecutor to Senior Constable Vercoe as to whether she knows why the procedures in question are adopted and applied is rejected. Catchwords: CRIMINAL LAW – evidence – expert evidence – whether within the expertise of the witness to answer question directed to them 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

EX TeMPORE Judgment (REVISED) 1. An issue in this case is how trace DNA of the accused and to some extent of the deceased came to be on a large 21 kilogram rock and indeed particular aspects of that rock that the Crown says the jury should accept was the murder weapon. 2. Senior Constable Vercoe, a Crime Scene Officer since 2010, who carried out, in conjunction with others, the crime scene process of preserving the evidence on 7 November 2013, is giving evidence. In the course of that evidence she has described the procedures she usually adopts, indeed she says she invariably adopts, by way of donning and changing personal protective equipment during the process of collecting the evidence for its preservation. 3. Part of the evidence involves the frequent changing of gloves and between what I will describe as major events, the changing of the whole protective outfit from top to toe. 4. She is asked by the learned Crown Prosecutor whether she knows why those procedures, which are detailed in internal police protocols or practices, are adopted and applied. Mr Watts of counsel has objected to that question. He has objected to it essentially on two bases. First he challenges the expertise of the witness to answer the question and secondly argues that any expertise in regard to the secondary transfer of trace DNA is at such a low level that its probative value is outweighed by the danger of unfair prejudice to the accused and that under s 137 of the Evidence Act 1995 (NSW), I am required by law to refuse to admit the evidence, that is to say it is not a matter of discretion. 5. Senior Constable Vercoe has given evidence on the voir dire, she has told me, and for present purposes I accept this evidence (there was no challenge to it) that when she first commenced as a Crime Scene Officer she underwent a two week course of basic training in the procedures that were to be adopted in the performance of the type of work that she has described in this case. That course was carried out at a police facility and also at a Fire and Rescue facility. She says that although the precise details are, understandably, hazy she received training in the importance of following the procedures because of the risk of contamination of exhibits. 6. She also said that she, from time to time, received continuing training by attending other courses and that whenever there was an update to the Crime Scene Procedures on the police intranet, she would assiduously read those changes. 7. The learned Crown Prosecutor has tendered exhibit VD1 which is a field hazard aide memoire of two pages. It states in part that a following table is designed to assist officers in identifying and managing hazards that may be present at particular scenes. It goes on to expand on that basic statement of purpose and sets out in tabular form a list of potential hazards and the protective action available. 8. Although I have not been taken through it in detail and I have only for the purpose of giving this ex tempore decision been able to look at it quickly, it seems to me that the table and the minimum standards chart which forms the second page do not in terms address the theory behind the procedures to be adopted and indeed the general thrust seems to be personal protection of the officer. 9. However, in relation to the hazard presented at crime scenes by blood, body fluids, etcetera, it recommends the taking of certain action, which as I read it, seems to be the donning of disposable protective equipment or clothing. There is a reference to stepping plates, decontamination and personal hygiene. With respect, it is difficult for me to understand that as a reference to the risk of cross-contamination of exhibits, other than the need for the officer to take steps to ensure that she is not contaminated. 10. There are different levels of expertise. In effect, although not framed this way, the question asked the witness to express an opinion based upon her course of study, training and experience for the purpose of s 79 of The Evidence Act. 11. She is undertaking a degree which she is yet to complete but one does not need to have a university qualification to be an expert entitled to express opinions for the purpose of s79 of The Evidence Act. The words of the statute talk about specialised knowledge based on the person's training, study or experience. The use of the word "or" in its conjunctive sense suggests that anyone of those matters or all of them together can give rise to specialised knowledge. There is no doubt that Senior Constable Vercoe at a certain level has specialised knowledge and accordingly could express opinions relevant to the existence of facts in issue substantially based upon it. 12. The three conditions of the admissibility of expert opinion are relevance; the possession of specialised knowledge; and demonstration that the opinion expressed is substantially based upon that specialised knowledge. 13. I have already set out the relevance of the evidence sought to be adduced. I am of the view that the witness has a degree of specialised knowledge and accordingly opinions substantially based upon that specialised knowledge are admissible. The issue though I think really is the nature of the specialised knowledge. When asked in cross-examination by Mr Watts whether she had received any training, and I understood the question to be put in general terms, meaning as at any time, in the secondary transfer of trace DNA, the witness said "I don't recall". It seems to me that if training of that technical nature had been given she would remember because she has impressed me, so far anyway, as a careful police officer. 14. It seems to me that she could not give any evidence about that particular scientific matter, because it is beyond her specialised knowledge and accordingly opinions expressed could not be said to be substantially based upon it. I certainly think that her specialised knowledge would allow her to say that from her training and ongoing experience she is aware of the risk of cross-contamination of exhibits, and is aware that that is the reason for the adoption of the procedures she has described and her observance of them. That evidence, I think subject to s 137, would be admissible. But she should not be permitted to give evidence directly related to the question in issue here, which is specifically about the secondary transfer of trace DNA. 15. I turn then to the question of the application of s 137 of the Evidence Act. In criminal cases, especially serious criminal cases to be decided by a jury of 12 lay people, the danger of unfair prejudice to an accused really consists of the risk that the jury might from something about the nature of an item of evidence misuse that evidence if admitted through misunderstanding, or overstatement, of its importance, relevance or authority, matters going to its reliability. 16. Now, it may be relevant for the witness to say she is aware that these procedures are followed to avoid the risk of cross-contamination, or contamination, of exhibits simpliciter. However there is a real possibility that the jury could over-estimate the importance of that evidence in circumstances where the real question is whether the Crown have excluded as a reasonable possibility the secondary transfer of trace DNA in particular from one area of enquiry to another. 17. Given what I regard as Senior Constable Vercoe's relatively, with no disrespect intended, low level of expertise on these matters, I am satisfied that the probative value of what she can say about this matter is outweighed by the danger of unfair prejudice to the defendant because she is not qualified to address the particular scientific enquiry at issue in this case. I reject the question.