Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.55) [2018] NSWSC 2011 Hearing dates: 2 November 2018 Date of orders: 02 November 2018 Decision date: 02 November 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Accede to the application of Crown that the limitation imposed on the use of Exh 171 and Exh 172 pursuant to s 136 of the Evidence Act 1995 be removed. (2) Exh 171 and Exh 172 are now admitted unconditionally. Catchwords: EVIDENCE – discretions – application to remove limit on use of evidence previously imposed pursuant to Evidence Act 1995, s 136 – evidence in two exhibits relating to DNA laboratory processes and results – where evidence of various scientists established that the necessary scientific processes recorded in the exhibits had been followed – where court was not satisfied that there was any unfair prejudice to the Accused – where evidence was of high probative value – limit on use removed – evidence not excluded pursuant to Evidence Act, s 137 Legislation Cited: Evidence Act 1995 Cases Cited: R v Warwick (No.49) [2018] NSWSC 1557 Texts Cited: Expert Witness Code of Conduct 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.4445) 1. This is an application by the Crown for the removal of a limitation on use with respect to Exh 171 and Exh 172. 2. On 19 September 2018, for the reasons contained in R v Warwick (No.49) [2018] NSWSC 1557, an extract of a folder of documents which had been marked "MFI SSSS" was tendered and admitted as Exh 171. At the time the documents comprised in that exhibit were admitted, I ordered that pursuant to s 136 of the Evidence Act 1995, the document entitled "DNA Submission Sheet", which formed the front page of each section comprised in Exh 171, be subject to a limitation on use, namely that the contents of the document were not admitted as being true. Factual Background 1. Some background is necessary. In 2013, the Police submitted two items to the New South Wales Forensic and Analytical Science Services ("FASS"), a part of the New South Wales Health Pathology: a piece of cardboard and a piece of carpet. This was for the purpose of identifying whether a DNA profile could be extracted from the items. 2. After the items were received by FASS, a forensic biologist has given evidence that she examined those items and obtained by swabbing, a number of samples suitable for submission to DNA testing. Ms Nicole Campbell, the biologist, made notes at the time of her work. Those contemporaneous notes have been admitted as Exh 173. 3. I am satisfied that Ms Campbell, in 2013, produced six samples which have been identified by her as items 6i, 6ii, 7i, 7ai, 7aii and 7aiii. Her number 6 referred to the piece of cardboard. Her number 7 referred to the piece of carpet. In accordance with the laboratory procedure, each swab, or substrate, was placed into a specimen tube and labelled with a barcode and an individual "A" number. Evidence of Dr Bruce 1. The Crown has tendered, and there has been admitted into evidence as Exh 173, the expert opinions of Dr David Bruce, a senior scientist at FASS, with respect to the identification of the DNA profiles which were recovered from some, but not all, of the samples. Dr Bruce's expert opinion with respect to these samples is to be found in two reports; the first, 6 December 2013, the second of 12 August 2015. 2. Dr Bruce has given evidence that in respect of his expert opinion, he had reference to, so far as his reports of 2013 and 2015 are concerned, information which was provided to him. The information provided to him was in part, but not entirely, derived from the data contained in the software program used at the laboratory at the time for the obtaining of a DNA profile. In particular, at T.3091, he said that the material that was made available to him as a scientist included a case worksheet and a DNA worksheet (a hard copy of DNA profiles in the form of charts known as electropherograms, or EPGs), as well as the DNA Submission Sheet. He said that by 2018, that material would be provided electronically. 3. With respect to the samples which form part of Exh 171, Dr Bruce gave evidence that as a matter of practice, the DNA Submission Sheet for each sample was taken into account when expressing his opinion. 4. As is apparent from his evidence, the DNA Submission Sheet records with respect to each individual "A" numbered item, the processing through the DNA laboratory of that item. It also records other information with respect to that processing and the sample. Dr Bruce described the DNA Submission Sheet in this way at T.3021: "This page is a summary of the different processes that have occurred in the workflow to produce the DNA profile and it indicates the operator who carried out each of those different steps by initial." 1. He then gave, in his evidence, a description of what each of the separate steps in the process involved. It is clear to me from that description that although the scientist concerned with each of the processes was required to undertake certain manual steps with respect to it, having logged in to the computer with respect to that process, the processing occurred on a robotic platform. Data which was extracted was then recorded electronically, and that data was then imported by the scientist through the software program into the system so as to be recorded against each individual sample. It is also clear that in conducting each of the processes, various but different steps were taken by the scientist in accordance with the laboratory's protocol to provide for controls with respect to each batch. 2. The success of the early steps in the process is established by the measurement ultimately of how much DNA is recovered. That takes place in either or both the quantitation process and then the amplification process. 3. The assessment of the amount of DNA which is recovered by the amplification process was described by Dr Bruce at T.3024 as a polymerase chain reaction ("PCR") which is a process which uses a fluorescent probe to measure the amount of DNA in the sample. That probe is operated on a robotic platform and causes the calculation to be made automatically with respect to the amplification process, which is then the subject of the final step in the process. 4. Prior to the analysis, the final stage in the process is capillary electrophoresis, described as a process which separates out different pieces of DNA by size, ideally from the 21 areas of the DNA previously identified, which is then measured by a fluorescence detector. The data recovered is then used towards producing the DNA profile, or the EPG to which I have earlier referred. 5. The "CE run", as it is described on Dr Bruce's evidence, is an automated process. The results of the CE process are analysed using software called "Gene Mapper" and two readers, one checking on the product of the other, undertake a review of those results in order to produce the EPGs. It is the form of the EPG which an analyst such as Dr Bruce receives and upon which his findings are informed. 6. Dr Bruce described in some detail what the information on the DNA Submission Sheet represented. Because he had not personally undertaken each of the six steps in the process, an objection was taken to the admissibility of the underlying documents. As I have earlier indicated, the limitation on use was imposed on the DNA Submission Sheet. Evidence of Other FASS Scientists 1. Since that time, the Crown has called, or in one case is anticipated to call, evidence from individual scientists who were employed at FASS at the relevant time and who gave evidence that they had undertaken particular steps in the process of extracting DNA or otherwise dealing with DNA in order to enable the EPG to be produced. 2. There is no challenge to the professional expertise of any of these scientists. It is not submitted that they were not adequately qualified for and properly trained in the undertaking of each of the steps in the DNA process. 3. By reference to the DNA Submission Sheet, each scientist has given evidence that they were the scientist responsible for performing the step in the process, that by reference to the DNA Submission Sheet, the process was undertaken on the date specified in it and that it was successfully completed. Each of the scientists has said that they have no actual recollection of undertaking the particular test, but nevertheless, it was their practice in the laboratory to comply with all laboratory protocols and to undertake the test as the processes were determined. 4. The DNA Submission Sheet, which is in an identical format with respect to each sample, although the information on it may be different, records for each step of the process a batch number, a date, the identity of the person who performed the process and, by a symbol in the shape of an arrow, that each process was performed successfully. As well, I would infer that successful result to be so from the evidence about the general processes of the way in which the laboratory worked, and particularly the fact that each step in the process is a necessary step in order to obtain a DNA profile or EPG and that the DNA Submission Sheet does not record that any step was performed more than once. 5. I interpose here to note that with respect to a DNA Submission Sheet contained in Exh 172, only three steps were recorded in respect of one sample. That result noted that no DNA profile was obtained. In other words, looking at the information contained on the DNA Submission Sheets in Exh 171, the fact that each step was recorded as having occurred and a DNA profile was prepared leads me to draw the inference, that, if there was evidence at all of the kind to which I have referred, each step was carried out correctly and the processes operated correctly. 6. In cross-examination of the various scientists, the lawyer for the Accused established that there was in place an electronic database called the Laboratory Information Management System ("LIMS"), and that a scientist, when undertaking any step in the DNA process, would make entries into LIMS with respect to that process. The Accused in cross-examination also established that none of the scientists had referred to the LIMS system before giving evidence and had not refreshed their recollection from the LIMS system, but had relied upon the contents of the DNA Submission Sheet. 7. I need also to add, using page D117 in Exh 171 by way of an example, that that Submission Sheet indicates the date on which it was printed. In the case of D117, the sample was submitted for DNA processing and analysis on 11 October 2013. The steps in the process then occurred between 13 and 15 October 2013. On 17 October 2013, the DNA profiles and EPGs were prepared and printed, and on 19 October 2013 the DNA Submission Sheets to which those documents were attached were printed. I draw attention to those dates because they corroborate the evidence of Dr Bruce that in coming to his opinion, he had access to those documents – his opinion being first dated 6 December 2013. Discernment 1. Objection is taken to the application to lift the limitation on use. The Accused submits that the limitation on use ought not be lifted because first, the evidence led by the Crown so far, does not establish the truth of the contents of the information on the DNA Submission Sheet. He further submitted that to the extent of their evidence, each scientist was giving an expert opinion and there was a complete failure to comply with the Expert Witness Code of Conduct. Finally, he submitted that s 137 of the Evidence Act would mandate that the documents not be admitted as an exhibit, with the effect that the limitation ought not be lifted. 2. It is first most convenient to deal with the question of the submission that each of these scientists is giving an expert opinion. In my view, that is incorrect and I do not accept such submission. The nature of the evidence of the scientists, leaving aside Dr Bruce, is that they undertook a particular test on a particular date and that the test, although requiring the application of skill to some extent or another, was undertaken with a satisfactory result. That evidence is evidence of fact, namely what each scientist did at any particular time. It is not an expert opinion and, accordingly, I reject the submission that any of the evidence of those scientists needed to address any of the matters set out in the Expert Witness Code of Conduct or to comply with it. 3. Next, it is convenient to consider the submission that the evidence of the scientists did not establish the truth of the contents of the DNA Submission Sheet. It is convenient to address that submission by reference to the evidence, as a whole, of the scientists. That is because the evidence has generally followed a similar path. The scientists have indicated that, by reference to the DNA Submission Sheet, they have performed the particular test. 4. By way of example, at T.4190 Mr Allan Murray, one of the FASS scientists, had his attention drawn to page D117 in Exh 171 and was asked this question: "Q. Having a look at the DNA Submission Sheet, did you perform the test known as 'quantitation' in relation to that DNA sample? A. Yes." 1. Although the precise words may have been different, evidence to similar effect was given by him and others with respect to each of the tests. Mr Murray also gave evidence that if there was any difficulty in the processing of any batch in the quantitation exercise, such difficulty would be recorded on the DNA Submission Sheet and the absence of such a record indicated to him that the quantitation step was done successfully. He also agreed, as did the other scientists, that he had no recollection of performing the particular test. 2. It was submitted that the evidence that a particular test was successfully performed is evidence that the Court could not accept because it was only based on the DNA Submission Sheet which itself is not a document which any of the scientists created. Accordingly, it was put that unless the scientists accessed the electronic database and examined the LIMS system, or else were presented with a paper version of that system demonstrating the entries which they actually made into the system, they are not capable of giving the evidence which they have given. 3. As well, the submission was made that the Accused has not had access to the LIMS system and, therefore, was unable to challenge any of the conduct of the particular scientists by reference to the DNA Submission Sheet in the form in which the scientist's evidence was taken. The absence of access to these documents, and the inability to challenge by cross-examination the scientist, is also relied upon in respect of the s 137 submission. 4. The evidence adduced by the Crown is sufficient to establish that the processes in the DNA laboratory at FASS were of a standard kind; that each scientist had to log on with their individual number and identity before performing a test or else a step in the process; that in respect of the DNA Submission Sheets in Exh 171, each of the steps was undertaken and undertaken successfully. The evidence from Dr Bruce was sufficient to describe the nature of the tests which were undertaken, the order in which they were undertaken and their purpose. 5. The evidence of Dr Bruce also established the need for each of those steps to be undertaken successfully prior to the production of a DNA profile. In each case in the DNA Submission Sheets and bundles of documents of which they are a part within Exh 171, a DNA profile and the EPG has been obtained in a form regarded by Dr Bruce as satisfactory for the purpose of expressing an opinion. 6. It may be that there are other records in the LIMS system, but the evidence is clear that the DNA Submission Sheet is one document by which information of the kind contained in it is recorded from the laboratory systems. It does not seem to me to matter that the Court is not informed of the identity of the individual who printed out the DNA Submission Sheet. After all, to print out a sheet of information is nothing more than an administrative step. 7. The evidence establishes that the information on the DNA Submission Sheet is that contained in the laboratory system. I see no difficulty in having a witness, by reference to a sheet relied upon by Dr Bruce, giving evidence as to one part of the information recorded on that sheet and, by reference to that document, giving the evidence that they undertook the particular test, or steps there recorded. 8. There is no reason to doubt the truthfulness of the witnesses. It was not suggested that they had not undertaken these steps. Further, the DNA Submission Sheet is a contemporaneous document which is itself admissible as being a source of information relied upon by an expert, and itself records the same information in a clear, chronological and logical fashion. I am also satisfied that the DNA profiles which were produced at the end of the processes recorded in the DNA Submission Sheet could not have been produced if each of the previous steps had not been undertaken successfully. 9. I am unpersuaded that the Crown had an obligation to require each of the scientists to look at, either electronically or by paper print-out, all of the information in the LIMS system before giving evidence. In my view, the Crown was not obliged to require the witnesses to refresh their recollection in a particular way. That is because if the witness was satisfied they could refresh their recollection by reference to a document familiar to them in the sense of the type of document produced by the laboratory system, they were entitled so to do. 10. Subject then to the s 137 submission, in my view, the Crown has, through the witnesses it has called, proved the truth of what is recorded on the DNA Submission Sheet in respect of each sample submitted for DNA analysis, namely that each of the necessary steps which are essential to the obtaining of a DNA profile were, in fact, undertaken and performed in accordance with the requisite protocols. Evidence Act - s 137 1. It is necessary to now turn to the terms of s 137 of the Evidence Act. It was submitted that by reasons of the provisions of s 137, the Court must refuse to admit this evidence unconditionally because the Accused was unfairly prejudiced in the way in which the evidence has been proved and the documents that have or have not been disclosed or produced on subpoena. 2. The application of s 137 requires the balancing of the probative value of the evidence against the danger of unfair prejudice to an Accused. In that balancing exercise, if the probative value is outweighed by the danger of unfair prejudice, then the Court is obliged to refuse to admit the evidence. 3. It is not to be doubted in the particular circumstances of this case that the probative value of the DNA evidence is very high. If it is accepted, it links DNA from the Accused to the scene of the Kingdom Hall bombing in a way which would assist as a circumstance in the proof of the fact which is in issue, namely that the Accused was present at the Kingdom Hall at Casula at some point in time shortly before the bombing on 21 July 1985, which is referred to as Event 7. Taken at its highest, and together with other circumstances, that evidence supports the contention of the Crown that it was the Accused who committed the crimes charged with respect to that bombing. 4. What then is the unfair prejudice? This is a trial by judge alone and not in front of a jury. Accordingly, any risk that evidence may be misused or applied inappropriately, which risk is commonly found in submissions with respect to s 137 in jury trials, can be put to one side. 5. I also note that the mere fact that evidence led by the Crown may be capable of different interpretations, including ones consistent with the innocence of an accused, is not sufficient of itself and without more, to give rise to any unfair prejudice. 6. But what is said here is that in the absence of the Accused being provided with copies of the LIMS documents, he was unable to test effectively the evidence of the scientists and, therefore, challenge effectively the opinions of Dr Bruce. In respect of that, I note that the contents of Exh 171 were extracted from a folder marked "MFI SSSS" during the course of the evidence of Dr Bruce, constituting a bundle of documents produced on subpoena from FASS. 7. The Accused submitted that I should conclude that he has not had access to all of the FASS material. In support of that he has tendered a subpoena filed on 22 June 2018 to FASS seeking all of its records of forensic examination and testing relating to the matters the subject of the proceedings before the Court. Documents were produced in answer to that subpoena on 9 July 2018. No application has been made with respect to that production of a kind which would suggest that there was any absence of adequate production. 8. As well, there has been tendered an email request made on 30 October 2018 seeking information from the Crown about what arrangements had been made for the production of the LIMS records concerning all the testing. That request has been the subject of correspondence with no resolution as yet. 9. I do not think that the absence of the LIMS documents has created any prejudice to the Accused, let alone unfair prejudice, in the circumstances of the facts and material that have been placed before this Court. First, the LIMS notes are not the only documents generated within the laboratory. The processing of the various DNA steps or tests has been recorded in contemporaneous documents which are the subject of the exhibit. There is no suggestion that these were not the documents retrieved from the LIMS system. 10. Secondly, there is no material before me which suggests that the production on subpoena from FASS did not include sufficient records available to be used by the Accused. On the contrary, no further application has been made for additional production with respect to the subpoena. 11. Thirdly, it is clear from the oral evidence of Dr Bruce that copies of those documents produced on subpoena were in Court, and also in Dr Bruce's work file. Access to those documents was available to the Accused before cross‑examination of Dr Bruce, and before any of the evidence of the scientists was called. No complaint was made about the inadequacy of Dr Bruce's work file. 12. Finally, nowhere in any of the information that has been admitted into evidence or in the evidence given by either Dr Bruce or any of the scientists, has there been identified any fact or circumstance which would indicate that the DNA processes had not been adequately followed with respect to any sample. 13. Finally, I should say with respect to the email request that it has been made very late in the trial and it has been made after many of the scientists, but not all of them, have given evidence. It is a request which, if it was thought to have been necessary, should have been made much earlier. After all, Dr Bruce referred to the existence of the LIMS in his evidence on 20 September 2018 (T.3057). And finally, if that request is pursued and produces further documents, it is always open, particularly in the course of a judge-alone trial, for the Accused to make application based on some demonstrated fact in those documents for the recall of one or more witnesses, which application can be addressed at that time. 14. For all of those reasons, I am not persuaded that there is any prejudice to the Accused, let alone unfair prejudice. Given the high probative value of the DNA opinion evidence which was expressed on the basis of the documents in Exh 171, it follows that I am not persuaded that the probative value of this material is outweighed by any unfair prejudice. Conclusion - Exh 171 1. In those circumstances, there is no reason, pursuant to s 137 of the Evidence Act, to decline to admit the documents without limitation. Accordingly, I accede to the application by the Crown that Exh 171 should be the subject of a removal of the limitation on use and be admitted unconditionally. 2. In the course of these reasons I have explicitly considered the DNA Submission Sheets in Exh 171. Conclusion – Exh 172 1. The Crown also seeks the lifting of the restriction with respect to Exh 172. Although the DNA Submission Sheets in the bundles of documents there are in a slightly different layout, the detail is the same and all of my remarks apply equally to the DNA Submission Sheets in Exh 172. Accordingly, for the reasons which I have expressed above, which are equally applicable to the DNA Submission Sheets in Exh 172, I accede to the Crown's application and lift the limitation on use applicable to Exh 172. 2. Accordingly, Exh 171 and Exh 172 are now admitted unconditionally. Orders 1. I make the following orders: 1. Accede to application of Crown that the limitation imposed on the use of Exh 171 and Exh 172 pursuant to s 136 of the Evidence Act 1995 be removed. 2. Exh 171 and Exh 172 are now admitted unconditionally. ********** 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: 01 February 2019