Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.49) [2018] NSWSC 1557 Hearing dates: 19 September 2018 Date of orders: 19 September 2018 Decision date: 19 September 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) The documents formerly marked MFI SSSS will be admitted and marked Exh 171. (2) The document entitled "DNA Submission Sheet" will, pursuant to s 136 of the Evidence Act 1995 be subject to a limitation on use, namely that the contents of the document are not admitted as being true. Catchwords: EVIDENCE — opinion evidence — exceptions — expert opinion — reports of forensic biologist — opinions on DNA recovered from two items at crime scene EVIDENCE — documentary evidence — proof of contents of documents — copies of reports EVIDENCE — discretions — limitation of use of evidence Legislation Cited: Evidence Act 1995 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not Applicable ex tempore Judgment (T.3012) 1. The Crown initially sought to tender three expert reports of Dr David Bruce, a forensic biologist from the New South Wales Forensic and Analytical Science Service ("FASS") of New South Wales Health Pathology which are dated 6 December 2013 ("the 2013 Report"), 12 August 2015 ("the 2015 Report") and 31 January 2018 ("the 2018 Report"). The reports refer to, and express opinions about, whether DNA was extracted from two items recovered from the scene of the Kingdom Hall bombing at Casula on 21 July 1985, being a piece of cardboard and a piece of carpet. Relevance 1. The items upon which the DNA testing was conducted, namely the cardboard and carpet found at the Kingdom Hall crime scene, are relevant to the Crown's case, insofar as blood grouping and DNA testing are concerned, as demonstrating that the Accused was at the Kingdom Hall in the relevant time period. 2. The evidence of Dr Bruce and his expert opinion are relevant to whether the Accused's DNA was on items retrieved from the Kingdom Hall shortly after the bombing, and therefore could rationally affect the assessment of the probability of whether the Accused was present at the Kingdom Hall around the time of the bombing: Evidence Act 1995, s 55. Further, if admitted, the expert opinion has significant probative value within the meaning of that phrase in the Evidence Act. Objections by the Accused 1. When the three reports of Dr Bruce were tendered, objection was taken by the Accused on the basis that the material underlying the opinions of Dr Bruce had not been identified and had not been tendered in evidence. At that time, the three expert reports were marked MFI RRRR. Course of Further Evidence 1. The Crown then led evidence from Dr Bruce, which identified the material upon which he relied for the purpose of his analysis and opinion. With respect to the 2013 Report and 2015 Report, that material was contained in the bundle of documents which is identified as MFI SSSS. With respect to the 2018 Report, that material was contained in the bundle of documents identified as MFI TTTT. Having adduced evidence which identified the material upon which Dr Bruce's opinion was based, the Crown tendered those underlying records. 2. It became clear that prior to the trial commencing, in answer to two subpoenas issued in 2015 and 2018, FASS had produced copies of all of its files and documents relevant to DNA testing of the cardboard and carpet. The documents which became MFI SSSS and MFI TTTT are part of, but not the complete set of, those files. 3. The evidence before the Court includes an overview, at a level of generality, of the processes implemented in the laboratory at FASS for identifying the existence of DNA, developing a profile and then comparing it with any other known profile. That overview informs the Court that each sample tested for DNA follows a standard process of six steps, the last of which is a comparative analysis by an appropriately qualified scientist, such as Dr Bruce. That analysis is based upon the five preceding steps, the results of which are recorded digitally within the requisite systems. 4. Those results, consisting of raw data recorded in a digital format, are then, according to the evidence, processed through a program which converts the digital data to a printout of a DNA profile. This printout is known as an electropherogram, conveniently called an "EPG". It is that EPG which is then used by the scientist for the purpose of forming their opinion as to the identity of the person whose DNA profile has been obtained. As well, from the results recorded from each of the five preceding steps, the scientist can satisfy themselves that the laboratory process have operated satisfactorily and in accordance with the processes which were then in place. Nature of the Document 1. The documents tendered in MFI SSSS consist of the EPG for the Accused and his daughter, Ms Trudi Kennedy, and the EPGs for each of the samples extracted from the piece of carpet and piece of cardboard and processed through the laboratory. As well, there is included two General Worksheets compiled at the time of the examination of the items (one in respect of the cardboard and one in respect of the carpet), which describe what was observed of each of the items on close examination, the condition of the items, what samples were obtained and where those samples were obtained from. It also records the individual sample number obtained by the biologist, which was then subjected to DNA analysis. That individual sample number is a unique number, against which results are recorded. 2. The ultimate product of the digital laboratory system is a document in a standard form called a DNA Submission Sheet, plus one or more EPGs, and generally consists of up to five pages where a DNA profile has been obtained. The first page headed "DNA Submission Sheet", I infer from the contents of it, records the processing through each stage of the sample, noting its unique identifying number as part of a large batch which also has an identifying number. There is other information there recorded, which the evidence does not yet identify, but it is anticipated will do so in due course. 3. The next two pages of the printout after the DNA Submission Sheet are EPGs produced from the digital information recovered from the five earlier processes; and the final two pages provide additional data with respect to those EPGs. Together, those five pages provide all of the information necessary for a person, such as Dr Bruce, to analyse and express their opinion about a particular sample. 4. At this stage of the evidence, and having regard to the way in which the underlying records relied upon by Dr Bruce were created and the general nature of the automated laboratory processes, there is no reason to conclude that there is any lack of integrity in the results obtained. Whether that prima facie view remains so after further evidence will need to be assessed in due course. Expert Opinion 1. The opinion expressed by Dr Bruce is one which, on its face, is an expert opinion, namely one based on specialised knowledge, which relates to an identified field of science or expertise – the science of DNA. Dr Bruce, on the face of his reports and from his evidence, has specialised knowledge based upon training, study and experience to enable him to express such opinions. Accordingly, his opinion is an expert opinion within the meaning of s 79 of the Evidence Act and is admissible on that basis. 2. However, the Crown is required by the Accused to prove the basis of that opinion before the Court considers its admission into evidence. Accused's Objections to the Proposed Exhibit 1. The Accused's objection to the underlying documents that are tendered as part of MFI SSSS is that they, at least in the hands of Dr Bruce, are hearsay or perhaps hearsay upon hearsay, or perhaps "triple hearsay". The contention by the Accused is that it is necessary for the Crown, in order to prove the underlying documents in MFI SSSS, to call each of the individuals whose initials appear on the DNA Submission Sheet as have had a role to play in the undertaking of the work recorded on those sheets. Discernment 1. The Crown accepts that it is proper for it to call at least two further witnesses, each of whom was the biologist who undertook the initial examination of the items, retrieved the samples and submitted them for processing through the laboratory, and proposes so to do. The work of those biologists is recorded on the General Worksheets which are handwritten records created by those biologists. The Crown does not accept that it is necessary for it to call each of the people, whose initials are set out, as having been involved in the processing of the individual batches recorded with respect to each sample. 2. One ready inference that is capable of being drawn from the form of the documents that are now tendered is that the material recorded with respect to the processing of each batch is simply material noting particular standard features of each batch being processed, and that no individual analysis is made by the person whose initials appear on the DNA Submission Sheet as having been associated with the processing of each batch containing the relevant extracted samples through the first five stages of the DNA process. In the absence of further evidence, that would be the appropriate inference to be drawn. However, whether or not that is the correct inference to be drawn from the document is something about which evidence could readily be obtained by the Crown, either from Dr Bruce or the biologists whom the Crown intends to call. Proof of Contents 1. A question arises as to whether MFI SSSS contains documents of a kind that would fall within ss 48(1)(d) and 48(1)(e) of the Evidence Act, and thereby be admissible. Section 48 may be adequate to enable the proof of the documents as being extracts and certainly may be adequate to enable the proof of the document as being business records, but questions of relevance and weight and the like need to be dealt with by reference to other sections in the Evidence Act. Limitation on Use 1. In all of the circumstances, particularly having regard to what appears to be the substance of the submissions of the Accused, it seems to me that the better course to follow is to admit the documents which are in MFI SSSS, but to impose a limitation on use under s 136 of the Evidence Act, namely that pending further evidence and further submission, the documents are admitted to prove the material upon which Dr Bruce relied for the purpose of expressing his expert opinion; but because, in the absence of further evidence, they might be unfairly prejudicial to the Accused, the documents are not admitted to prove the truth of the contents of the information contained on the front page of each bundle headed "DNA Submission Sheet" of each of the samples, by reference to the five processing stages there recorded. 2. The reference to further evidence in the foregoing paragraph is not intended to be taken as a requirement that the Crown call each of the individuals whose initials appear on the DNA Submission Sheet. The question of what additional evidence the Crown adduces, what other interest it relies upon and when and if it decides to submit that the Court should remove the limitation on use, is entirely a matter for it to determine. 3. The Crown indicated that it intends to call the biologists who were the authors of the General Worksheets. The Court is entitled to act on that basis when considering the admissibility of those General Worksheets. Accordingly, those documents are admitted without any limitation on use. Orders 1. I make the following orders: 1. The documents which were formerly marked MFI SSSS will be admitted and marked Exh 171. 2. The document entitled "DNA Submission Sheet" will, pursuant to s 136 of the Evidence Act 1995 be subject to a limitation on use, namely that the contents of the document are not admitted as being true. ****** 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: 16 October 2018