Fleming v The Queen

[2009] NSWCCA 233

Reported Decision: 197 A Crim R 282[2010] ALMD 6965

New South Wales

Court of Criminal Appeal

CITATION:	Fleming v R [2009] NSWCCA 233 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 August 2009
JUDGMENT DATE:	11 September 2009
JUDGMENT OF:	McClellan CJatCL at 1; Grove J at 66; RA Hulme J at 67
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal - admissibility of DNA evidence - whether evidence was obtained improperly - direction in relation to lies and false alibi - whether the judge erred in directing the jury as to the approach of DNA profiling evidence - Longman direction - unreasonable verdict - appeal dismissed
LEGISLATION CITED:	Evidence Act 1995 Crimes (Forensic Procedures) Act (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Dodds v R (2009) NSWCCA 78 House v The King (1936) 55 CLR 499 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 Papakosmas v The Queen (1999) 196 CLR 297 R v Abusafiah (1991) 24 NSWLR 531 R v Camilleri [2007] NSWCCA 36; 169 A Crim R 197 R v Coulstock (1998) 99 A Crim R 143 R v Slattery [2002] NSWCCA 367 Ridgway v The Queen (1984) 184 CLR 19 Robinson v R [2006] NSWCCA 192 Robinson v Woolworths Limited [2005] NSWCCA 426; 64 NSWLR 612 Shepherd v R (1990) 170 CLR 573 Swaffield and Pavic v The Queen (1998) 192 CLR 159 Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clark v The Queen (2007) HCA 39; 231 CLR 396 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
PARTIES:	David Graham Fleming (appellant) The Crown
FILE NUMBER(S):	CCA 2005/3252
COUNSEL:	K H Averre (Appellant) L Babb SC/M Rabsch (Crown)
SOLICITORS:	Voros Lawyers (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2005/2543
LOWER COURT JUDICIAL OFFICER:	Studdert J
LOWER COURT DATE OF DECISION:	29 June 2007

2005/3252

McCLELLAN CJ at CL
GROVE J
R A HULME J

FRIDAY 11 SEPTEMBER 2009

FLEMING, David Graham v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following a trial of the murder of Johanne Hatty. Ms Hatty was murdered in the early hours of 18 February 1984 at Spains Lookout, Neutral Bay. Her body was discovered on a rock ledge on the harbour side of the lookout. She had been strangled with some type of ligature. Her clothes were dishevelled. Her belongings including her handbag and umbrella had been placed on the ledge bedside her.

2 At the time the appellant was living in a boarding house about 700 metres from the lookout. He had recently moved to Sydney. He was considered to be a suspect by the police and although questioned was not charged.

3 The crime scene investigation and the post-mortem examination indicated that the deceased had been sexually assaulted, most probably after she had died. Forensic samples were taken from her body and tested to the limited extent available in 1984. Semen was identified in a swab taken from her vagina. The analysts were unable to take a blood grouping from the semen sample. DNA testing was not yet available. DNA testing was ultimately carried out in 1989 but this was unsuccessful due to the fact that large amounts of a sample were necessary in order to obtain a profile at that time.

4 In 2004 the police decided to reopen the investigation. This decision was taken because of the advances which had by this time been made in DNA technology. The samples which were taken from the deceased were retested resulting in a partial male DNA profile being obtained. An investigation was launched.

5 By this time the appellant was living in rural Victoria. There was another person who was also suspected but after his DNA was analysed he was eliminated as a suspect.

6 The police ascertained that the appellant was not recorded on any DNA database in Australia. There was no Victorian or interstate legislation in place pursuant to which a court order could have been sought to take a DNA sample from the appellant while he was in Victoria. The Victorian Government Solicitor had given advice to the Victorian police that the taking of covert DNA samples although not unlawful, may be regarded by a court as improper leading to its exclusion if sought to be tendered by the prosecution.

7 The NSW police had discussions with the Victorian police about the possible surveillance of the appellant. However, he was living in a remote location and it was decided that surveillance was almost impossible. The assistance of the Victorian police was sought so that other investigative methods could be implemented.

8 Sergeant Vick of the Victorian police knew the appellant and had had a number of conversations with him 12 months earlier when there was a complaint about a drover and alleged rudeness to the appellant by police. Sergeant Vick visited the appellant at home and asked him to draw a sketch indicating the location of the drover 12 months earlier. The appellant cooperated. Spittle was observed to fall onto the paper. The sketch was sent to the NSW police where a DNA profile was recovered. That profile matched a partial DNA profile recovered from the vaginal swabs of the deceased. The partial profile could be expected to occur in 1 in 52,000 people in the general population.

9 After the sheet of paper had been analysed the police obtained a warrant for the appellant’s arrest. This occurred and he was extradited to NSW. A further forensic procedure was carried out by the police. A DNA profile developed from a buccal swab of the appellant matched the DNA profile from the vaginal swab, yielding a possibility of 1 in 8.6 billion individuals sharing the same DNA profile.

10 Detective Sergeant Bryant of the NSW police was responsible for the investigation. He was aware that there was no legislation in Victoria which allowed an application to be made to authorise obtaining a DNA profile where the investigation was into the commission of an offence outside of Victoria. Detective Sergeant Bryant considered the appellant to be a flight risk who might react to a renewed police interest in him. In December 2004 Detective Sergeant Bryant was aware that there was an outstanding warrant for the appellant. The warrant had issued after the appellant had failed to appear at court in relation to an offence charged in NSW in 1984 of assault occasioning actual bodily harm. It would have been possible to have the appellant arrested on that warrant and then returned to NSW where the procedures provided by the Crimes (Forensic Procedures) Act 2000 for the taking of a sample by a buccal swab could have been implemented. Detective Sergeant Bryant gave evidence that he did not seek to have the appellant arrested in Victoria for his failure to appear some 20 years previously because he did not think of it. The trial judge accepted his evidence.

11 A voir dire was conducted as to the admissibility of the DNA evidence. The trial judge concluded that it should be admitted. The appellant was subsequently convicted. The appellant has challenged the decision to admit the DNA evidence and raised further grounds of appeal against his conviction. There is no appeal against sentence. The grounds of appeal are:

Ground 1: The learned trial judge erred in admitting into the evidence the DNA profile of the appellant

Ground 2: The learned trial judge erred in not warning the jury as regards lies of an accused in the context of alibi evidence

Ground 3: The learned trial judge erred in directing the jury as to the approach to the DNA profiling evidence

Ground 4: The learned trail judge erred in not giving a direction similar to those in Longmore and Crampton

Ground 5: The verdict is unreasonable or cannot be supported or there was a miscarriage of justice

Ground 1

12 Section 138 of the Evidence Act 1995 provides a power for a court to exclude evidence that was obtained improperly or in contravention of an Australian law. Section 138 is in the following terms:

“(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”

13 The trial judge concluded that the evidence of the appellant’s DNA was not obtained in contravention of an Australian law or as a consequence of any such contravention. His Honour accepted that the appellant was tricked into cooperating with Sergeant Vick but held that the police conduct was not improper within the meaning of s 138. His Honour also determined that if he had found a relevant impropriety the desirability of admitting the evidence outweighed the undesirability of admitting it (s 138(3)). His Honour concluded that the DNA evidence was highly probative and there being no deliberate attempt to avoid the provisions of the Crimes (Forensic Procedures) Act (NSW) or any other statute the evidence should be admitted.

14 The appellant did not submit that the evidence was obtained in contravention of an Australian law or as a consequence of any such contravention. However, it was submitted that it was obtained improperly. Because the 1984 warrant had not lapsed it was submitted that the proper course was for the appellant to have been arrested pursuant to that warrant and extradited to NSW. It was submitted that the appellant was tricked into providing his DNA and for that reason there was an impropriety which should have led to the evidence being rejected.

15 The appellant drew attention to some consideration in the authorities of the admissibility of confessions obtained by trick, in particular the judgments of Kirby J in Swaffield and Pavic v The Queen (1998) 192 CLR 159 and Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clark v The Queen (2007) HCA 39; 231 CLR 396.

16 It was further submitted that once it was accepted that the initial DNA evidence had been obtained by an impropriety, and because that led to the appellant’s arrest, the evidence from the DNA which was obtained once the appellant had returned to NSW should also have been excluded. It was submitted that the latter evidence was the “fruit of the initial impropriety” and should not have been admitted into evidence.

17 Impropriety is not defined in the Evidence Act. In Ridgway v The Queen (1984) 184 CLR 19, a case before the Evidence Act was enacted, Mason CJ, Deane and Dawson JJ said, at 37, that “the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances.” Their Honours acknowledged that the effective investigation by police may involve subterfuge and deceit and may extend to the intentional creation of opportunities for the commission by a suspect of a criminal offence. Their Honours acknowledged that “a finding that law enforcement officers have engaged in … clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it.” Their Honours accepted that deceptive tactics, which do not involve illegal conduct, will ordinarily be legitimate.

18 The meaning of the term “impropriety” was considered by this Court in Robinson v Woolworths Limited [2005] NSWCCA 426; 64 NSWLR 612. The court held that the principles collected in Ridgeway should be applied to s 138 when considering whether particular events constitute an impropriety. Basten JA said at [21]:

Relevance of general law principles

21 Section 138 has a broad scope. For example, it applies not merely to evidence obtained unlawfully, but also evidence obtained “improperly”. It applies not only in criminal proceedings, but also in civil proceedings. It applies to all kinds of evidence, including admissions which, for the purposes of criminal proceedings, may also need to be considered under ss 84, 85 and 90. Finally, and significantly for the present case, the section covers, not merely impropriety or unlawful conduct in the acquisition of evidence following an offence, but also conduct which constitutes the offence.

22 It is clear that s 138 varies the common law in a number of respects: see Anderson, Hunter and Williams The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), p 510. Nevertheless, s 9 of the Act states:

9(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

Thus, in relation to s 138, there is no doubt that the statutory rule involves exclusion of evidence, where its terms are engaged, subject to a discretion to admit. The general law rule was framed in terms of a discretion to exclude. Secondly, s 138 is not in terms limited to unlawful or improper conduct on the part of law enforcement authorities. Each of these considerations may be relevant in determining what constitutes “impropriety” for the purposes of s 138 and invite caution in considering whether to apply general law principles without qualification. On the other hand, because the Act does not define the concept of impropriety, it is difficult to perceive any necessary intention on the part of the legislature to vary the principles collected in Ridgeway , derived from earlier Australian authority. Accordingly, those principles should be applied.

23 It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced.”

19 In the present case there was no unlawfulness in the conduct of the police officer. His Honour accepted, in my view correctly, that it was for the accused to establish impropriety: R v Coulstock (1998) 99 A Crim R 143 to 147. The trial judge accepted that the appellant was tricked into cooperating with Sergeant Vick but was not persuaded that the line which would make the sergeant’s conduct improper was crossed.

20 The appellant relied significantly in his written submissions on the judgment of Kirby J in Tofilau. However, it is important to recognise that his Honour was in dissent in that case. Furthermore the principles discussed by Kirby J relate to deception in obtaining a confession, an issue of a different character to obtaining a suspect’s DNA sample.

21 The considerations relevant to the exercise of discretion pursuant to s 138 were discussed by this Court in R v Camilleri [2007] NSWCCA 36; 169 A Crim R 197 at [31]:

“As Howie J made plain in R v EM (2003) NSWCCA 374 at [74]-[78] s 138 is concerned with balancing public interests. The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders.”

22 The decision which the trial judge was required to make was discretionary and must be reviewed in accordance with the principles in House v The King (1936) 55 CLR 499. There is no suggestion that his Honour made any error of fact or law, had regard to any irrelevant matter or failed to consider a relevant matter. The conclusion which his Honour reached was clearly open to him. This ground of appeal fails.

Ground 2: the learned trial judge erred in not warning the jury as regards lies of an accused in the context of alibi evidence

23 The appellant gave evidence at his trial. In part he sought to raise an alibi. He said that at the relevant time he had travelled to North Queensland to visit the mother of his child, who he believed had been involved in an accident. He dated this event by reference to his appearance at Fairfield court which he said occurred on 14 February 1984. However, the court records indicated that he was not due in court until 22 March of that year, with his first court appearance being 28 March, and the matter being finally disposed of on 26 May 1984.

24 It was submitted that, although the prosecution did not rely upon the appellant’s apparent lie as to his whereabouts as evidence of consciousness of guilt, the trial judge ought to have given directions in relation to lies and a false alibi. Support was sought from the decision of the High Court in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234. I infer that the appellant submitted that the direction referred to in [23] of Zoneff may have been appropriate. That direction was in the following terms:

“You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”

25 When directing the jury his Honour was careful to provide the jury with assistance in consideration of the appellant’s evidence. His Honour said:

“Bearing this in mind, though: That by giving evidence, the accused has not assumed the burden of proving anything. He has told you in the course of his evidence that he did not attack the deceased. He does not have to prove that assertion; rather, it is for the Crown to prove that the accused caused the death of the deceased. Obviously if you accept the evidence that the accused has given as being reliable evidence on that issue, you would find the accused not guilty. If you do not accept the evidence that the accused has given on that matter, it does not automatically follow that you would find the accused guilty. You must determine whether, on the evidence which you accept in this case, the Crown has satisfied you beyond reasonable doubt as to the guilt of the accused.”

26 His Honour further directed the jury:

“But suppose you conclude his evidence is unreliable in asserting that he set off for Queensland on 15 February 1984 as those court records would indicate, and that there is no explanation that you accept from the accused as to his movements around the time that the deceased died, it is nevertheless important that you fully appreciate and make due allowance for the difficulties faced by the accused in attempting to remember and to show now where he was at a particular time in February of 1984. He does not have to prove he was out of Sydney on 18 February 1984. Rather, the Crown has to prove beyond reasonable doubt all the ingredients of the crime charged, and that includes, of course, proving the presence of the accused at Spains Lookout when the deceased was strangled, if you find that is what occurred.”

27 The trial judge also directed the jury:

“All together, the Crown submits you would reject the evidence of the accused. But going back to the case presented by the Crown, and the Crown very properly reminded you as I have done and I do again here remind you that it is not for the accused to prove anything to you. The Crown has to prove the guilt of the accused beyond reasonable doubt.”

28 Complaint was also made by the appellant that when opening to the jury the prosecutor indicated that the Crown proposed to call evidence that “when the (appellant) spoke to Inspector O’Toole, at that time it was Sergeant O’Toole, he told him that he had been living at the premises in 2004 (sic – 1984) and on the night of this murder he had been home in bed.” The import was that the appellant had told lies about his whereabouts at the relevant time. Subsequently the trial judge ruled that this evidence was inadmissible and no further mention was made of it.

29 The trial judge made clear to the jury that the Crown Prosecutor’s opening was only the evidence that he anticipated would be called. He emphasised that what counsel had said is not evidence. His Honour told the jury that the case must be decided on the evidence tendered before them. The Crown Prosecutor confirmed the position, saying that his opening was not evidence and that “everything that I have said to you is not evidence. Again I remind you of what his Honour said, that you must decide this case on the evidence.”

30 Nothing was said by the High Court in Zoneff which requires a particular form of words to be used by the trial judge when a question of alibi is raised. A criticism of the directions in Zoneff was that the trial judge had raised the possibility that the telling of lies by the accused indicated a consciousness of guilt but provided little further guidance. The High Court said the matter was “then left … largely up in the air” (at [22]). It was in that context that the High Court made a suggestion with respect to the appropriate direction.

31 In my opinion the directions which his Honour gave in relation to the appellant’s evidence were appropriate. It would have been obvious to the jury, as the appellant conceded, that the prosecutor was not relying on particular lies to prove the appellant’s guilt. I am satisfied that the jury were appropriately instructed that they could not use the rejection of the appellant’s alibi evidence to reason towards his guilt of the offence with which he was charged.

32 I reject ground 2.

Ground 3: the learned trial judge erred in directing the jury as to the approach to the DNA profiling evidence

33 The appellant put in issue at his trial the integrity of the collection and handling of DNA samples. As was recognised by the trial judge in his summing up the Crown case was dependent upon the jury accepting the DNA evidence. His Honour explained to the jury that the Crown case was that the DNA profile from the appellant taken from the sketch collected by Sergeant Vick matched the appellant’s buccal swab and was the same as the DNA profile of the person whose DNA was found on testing a swab taken from the deceased’s vagina. The evidence from Ms Sharon Neville, senior forensic biologist with the Division of Analytical Laboratories indicated that the probability of someone else sharing the same profile as that of the appellant was 1 in 8.6 billion individuals.

34 The post-mortem of the deceased was carried out by Dr Wong who took three swabs being from the vagina, rectum and an oral swab. After taking the swabs he placed a smear from each of them on a glass slide which he marked 2b, 3b and 4b respectively. The original swabs were marked 2a, 3a and 4a. Those swabs were placed in a transport medium which rendered blood testing impossible. The swabs and slides were delivered to Dr Baxter on 20 February 1984 but because of the inappropriate transport medium Dr Baxter requested that fresh swabs be taken. The evidence was that Dr Wong obtained further swabs identified as 2a(ii) (vaginal); 3a(ii) (rectal); and 4a(ii) (oral).

35 On 21 February 1984 Dr Baxter reported the presence of semen on swab 2a(ii) and smear 2b but he was unable to carry out blood testing. Swabs 2a and 2a(ii) were retested in 2004.

36 The appellant accepts that swab 2a was a swab taken from the vagina of the deceased by Dr Wong. Ms Neville concluded, following analysis of the partial DNA profile on that swab, that she would expect the profile to occur in approximately 1 in 52,000 individuals.

37 In relation to swab 2a(ii) there was no written record as to how it came into existence. Dr Baxter gave evidence that he had sought fresh samples after receiving the original ones from Dr Wong. Dr Wong said that he could not remember taking the second swab. However, there is convincing evidence that he did so. Dr Wong recognised that he had written the label on the swab 2a(ii). He had misspelled the word vagina as “vargina” both on the label dated 18 February 1984, being swab 2a, and on the label dated 20 February 1984 swab 2a(ii). He said that he had misspelled that word in a similar fashion in the past.

38 This analysis of the relevant evidence is consistent with the approach of defence counsel at the trial. In his address to the jury defence counsel made no submission to the effect that Dr Wong had not taken the swab and addressed no submissions as to its genesis. The trial judge also referred to swab 2a(ii) without any suggestion that its origin was an issue in the proceedings.

39 The chain of possession of swabs 2a and 2a(ii) was a live issue at the trial. There was a break in the documentary records in relation to their storage. The record shows Snr Const Rodney Hunt collected the exhibits from the Division of Forensic Medicine in Glebe on 11 July 1985 signing them to the Sydney Scientific Investigation Section. They were next located at the Chatswood Scientific Investigation Section on 29 June 1989. There was no explanation as to how they moved from Sydney to Chatswood.

40 Snr Constable Hunt gave evidence that although he had no memory of what he did with the exhibits when he signed for them on 11 July 1985, the general practice was that they were taken from the Division of Forensic Medicine to the Scientific section in Sydney and kept in an exhibits room. The assumption was that another officer must have taken them from the exhibits room to Chatswood.

41 This gap in the record became an issue at the trial which was addressed by both counsel and by the trial judge. The defence submission was that the period when the swabs could not be accounted for provided an opportunity for tampering.

42 The Crown responded to this suggestion. It was submitted that it was significant that the appellant’s DNA profile was found on swab 2a(ii) and the partial profile matching that of the appellant was found on swab 2a. There was no third contributor found on either swab taken from the deceased. A partial DNA profile was developed from swab 2a and a full DNA profile developed from swab 2a(ii). The consequence was that if there was contamination or tampering it occurred with respect to not one but both swabs. Although the swab stick on swab 2a had come loose from the swab holder this was not the case with swab 2a(ii).

43 In these circumstances it is understandable that the defence focused upon the possibility of deliberate tampering of swab 2a(ii) by the original investigating officer, Det O’Toole. The defence theory was that Det O’Toole had collected used condoms from the bedroom of the appellant in 1984 and had at some later stage used the semen within those condoms to contaminate swab 2a(ii) by adding the appellant’s DNA to that swab. Det O’Toole was cross-examined to this effect but categorically denied that he had interfered in the manner suggested. Because DNA testing was not available in 1984 there would have been no purpose in Det O’Toole taking this course at that time.

44 Ms Neville gave evidence that it had been possible to develop a complete male profile and a nearly complete female profile from swab 2a(ii). The male DNA recovered matched the DNA profile of the appellant. The single female profile was consistent with having originated from the deceased.

45 The absence of a third person’s profile in the DNA profiles developed from swab 2a(ii) strongly supports Det O’Toole’s denial that he tampered with swab 2a(ii) by contaminating the vaginal swabs with the appellant’s semen.

46 There was significant evidence which suggested that the murderer of the deceased had unprotected sex with her and that his semen was found within her vagina. The deceased’s corduroy jeans and underpants had been removed and then replaced. A tampon which had been used by the deceased was found near her body. Both Dr Baxter and Dr Wong had observed sperm taken from the vaginal swab on 18 February 1984. Dr Wong observed injuries on the deceased’s body that indicated that sexual intercourse had occurred after death.

47 The trial judge carefully directed the jury in relation to the DNA evidence. Given its significance in the trial this was necessary. His Honour told the jury that proof of a match between the DNA profile developed from the swabs and the appellant’s DNA must be proved beyond reasonable doubt. He told the jury that the Crown case was circumstantial with the DNA evidence being at the centre of that case. His Honour reminded the jury of the delay between the offence and the trial and asked them to consider whether the passage of time may have afforded the opportunity for contamination of the exhibits. His Honour stressed that the DNA evidence was not direct evidence of the commission of the crime.

48 His Honour summarised the Crown submissions relating to the DNA evidence. He was also careful to summarise the defence submissions and emphasised that the Crown could not prove where the swabs had been between July 1985 and June 1989. He summarised the evidence of the scientific witnesses and reminded the jury that the appellant blamed Det O’Toole for taking condoms from his room.

49 Immediately after his Honour had summarised the defence submissions he asked counsel whether there was any matter arising. Counsel answered no and no issue was raised in relation to the directions with respect to the DNA.

50 In these circumstances I am satisfied that the trial judge adequately addressed the issues which the jury was required to resolve in relation to the DNA. I reject ground 3.

Ground 4: The learned trail judge erred in not giving a direction similar to those in Longman and Crampton

51 Because of the lengthy period between when the deceased was murdered and the appellant’s arrest it was submitted that the trial judge ought to have given a warning to the jury similar to those given in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 and Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. No application for further directions or redirections to this effect was made by trial counsel.

52 In my judgment this ground of appeal must also be rejected.

53 The trial judge did give the jury directions in relation to the time which had elapsed between when the deceased was killed and the appellant was arrested. The directions were comprehensive and in my opinion adequate in the circumstances. His Honour said:

“There is another direction I want to give you before we proceed further, and that is as to the lapse of time here and its effect.
Now, the deceased met her death on 18 February 1984. The accused was arrested on 18 January 2005 and was brought to New South Wales on 19 January 2005, nearly 21 years later. He is accused of a crime that was committed in February 1984. He is called upon to defend himself and to answer to events that occurred now over 23 years ago. Of course, the fact that there is that passage of time until the accused was charged and now until the accused has been brought to trial does not evidence that the accused was wrongly charged 21 years after the death. There is no doubt that the deceased met her death in February 1984, and in February 1984 there was not the techniques to obtain a DNA profile such as had developed by the time Ms Neville conducted her testing of which you have heard evidence in this case. However, it is important, and most important, that you appreciate fully the effect of that passage of time from February 1984 on the ability of the accused to defend himself by testing prosecution evidence or by adducing evidence in his own case to establish his whereabouts and his movements at the critical time. It is not only the accused who was disadvantaged by that effluxion of time. So too, was the Crown in terms of the recollection of witnesses and in tracking the movement of exhibits and so on. The accused has given evidence that he was in Queensland, having gone there to check on the wellbeing of his son and his son’s mother. The accused says that is where he was when the deceased met her death. The difficulties of finding witnesses to give evidence of his movements so long ago would be obvious to you. He did not have family to back him up, he had lost contact with his mother and sister. You have the affidavit evidence of Miss Ceic, evidencing her unsuccessful attempts to track down any witness or bank or car rental record to show the accused was in Queensland at the relevant time.
…
When you are considering the evidence of the accused, it is very important that you fully appreciate and allow for his difficulties in seeking to bring forward evidence as to his movements so long ago. He gave as a reason for remembering when it was he went to Queensland to check on his son and his son’s mother that he found out about the car accident in which they had been involved the day after he was at Fairfield Court, and he says he was at Fairfield Court on 14 February 1984.
…
But suppose you conclude his evidence is unreliable in asserting that he set off for Queensland on 15 February 1984 as those court records would indicate, and that there is no explanation that you accept from the accused as to his movements around the time that the deceased died, it is nevertheless important that you fully appreciate and make due allowance for the difficulties faced by the accused in attempting to remember and to show now where he was at a particular time in February of 1984. And in this context again I remind you that the accused does not have to prove anything at this trial. He does not have to prove he was out of Sydney on 18 February 1984. Rather, the Crown has to prove beyond reasonable doubt all the ingredients of the crime charged, and that includes, of course, proving the presence of the accused at Spains Lookout when the deceased was strangled, if you find that is what occurred.
I stress that you give appropriate consideration and weight to the fact that the accused is standing trial now charged with the alleged commission of a crime that occurred in February 1984. And Mr Austin, you will remember, in his submissions, urged upon you that the accused was hindered in challenging evidence in the Crown case by effluxion of time. The effluxion of time has afforded the opportunity for contamination of evidence, the exhibits, by reason of such lapse.
The accused, it was submitted, was disadvantaged by reason of the time lapse in exploring whether and, if so, how advantage, could be taken, to use that opportunity to contaminate exhibits.
…
But it is very important that you weigh up that submission which Mr Austin made to you, and Mr Austin pointed to the lapse of time, the difficulty for the accused to defend himself. He submitted that was of critical importance, having regard to the fact that we have got more than 20 years that have elapsed here. Mr Austin submitted to you that you would find that you had a reasonable doubt as to the guilt of the accused, having regard to the effluxion of time; having regard to the denial of guilt by the accused and having regard to the opportunity for the swab 2a(ii) to have been contaminated.”

54 Although no issue was raised at the trial the appellant submitted that the trial judge ought to have instructed the jury in the following terms:

The disadvantage was real and not speculative
The disadvantage was heightened by the Crown relying on persuasive DNA evidence and
It would be dangerous to convict the accused when such evidence formed the only basis for the Crown case and could not be adequately tested without at least scrutinising that evidence with great care.

55 It was further submitted that these directions should have been given with the “unmistakable and firm voice” of the trial judge.

56 I am satisfied that the appellant’s submission cannot be accepted. As is plain from the extract from the trial judge’s summing up set out above his Honour did instruct the jury that the appellant was disadvantaged by the lapse of time. That disadvantage was not increased by the Crown relying on DNA evidence and no direction to that effect was required. The appellant’s DNA did not change. The disadvantage to him was created by the development of the relevant technology so that it was now possible to match his DNA profile to the DNA obtained from the deceased. There was nothing which the appellant could have done with respect to the DNA during the period since the deceased died which could have improved his capacity to defend himself at the trial.

57 Although in some circumstances a warning that it may be dangerous to convict an accused may be necessary this Court has indicated that care must be exercised before that formulation is used. In Robinson v R [2006] NSWCCA 192 at [19] Spigelman CJ described it as “a formulation best avoided, save in exceptional circumstances.” When the evidence in relation to an alleged sexual assault is confined to that of a complainant who may have been a young person when the events were said to have occurred the jury must be carefully instructed. However, the present case is of quite a different character. The trial judge did remind the jury of the difficulty which the appellant may have experienced in obtaining evidence which supported his claim to an alibi. However, beyond that matter the delay could not have caused him prejudice and no further warning was required.

58 There are cases where the events which have happened between the time when the offence was committed and when the accused is tried could cause significant prejudice to an accused person and careful directions from the trial judge are required. One illustration is found in the circumstances in R v Slattery [2002] NSWCCA 367 where the relevant weapon and the crime scene were destroyed before the trial. This Court held that in those circumstances the jury must be clearly reminded of the disadvantage occasioned to the accused when considering its verdict. This was not such a case.

Rule 4 and grounds 2, 3 and 4

59 As I have indicated no complaint was made about the directions given by the trial judge in relation to the matters raised in grounds 2, 3 and 4 and accordingly leave is required under rule 4. Before leave can be granted the appellant must demonstrate an arguable case that the trial judge has made an error of law or there has been a miscarriage of justice (see Papakosmas v The Queen (1999) 196 CLR 297 at [72]; see also R v Abusafiah (1991) 24 NSWLR 531 at 536).

60 The absence of an objection by trial counsel confirms that in the context of this trial there was no concern as to the adequacy of his Honour’s directions. As I have indicated in my view the approach of trial counsel was correct and I would, insofar as it may have been required, refuse leave in relation to grounds 2, 3 and 4 raised by the appellant.

Ground 5: The verdict is unreasonable or cannot be supported or there was a miscarriage of justice

61 The approach which this Court must adopt when this ground of appeal is raised has been considered on many occasions. I discussed it briefly in Dodds v R (2009) NSWCCA 78 where I said:

“The appellant submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: Criminal Appeal Act 1912 s 6(1). The correct approach to this question by an appeal court has been considered by the High Court on a number of occasions: M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606 at 614 at 615. I summarised the relevant principles in R v Habib [2005] NSWCCA 223 and discussed them in Kaliyanda v R [2007] NSWCCA 300. The court’s task is to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The joint judgment in MFA offered the following by way of guidance:

“The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence’ [56].

In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

62 The appellant submitted that by reason of the issues raised in relation to grounds 1, 2 and 3 the Crown case was flawed and the verdict was unreasonable. As I understand the submission it was being suggested that because the DNA evidence should have been rejected (ground 1) together with the difficulties arising from the apparent lack of truthfulness of the appellant, combined with, if admitted, the unreliability of the DNA evidence, the guilty verdict should be set aside.

63 Although the DNA evidence was central to the Crown case there was other circumstantial evidence which, together with the DNA evidence, made the Crown case compelling. The appellant lived 700 metres away from where the deceased’s body was found. As a consequence he had the opportunity to gain knowledge of the locality and of the rock ledge beyond the park fence where the body was left. There was a witness, Ms Caudwell who observed a person standing in the park between 1 and 2 am at about the time the murder took place. Her evidence did not exclude the appellant. At the time the appellant walked with a limp and wore bandages on his knee most of the time. The police took possession of those bandages. The evidence indicated that threads located in the deceased’s ear, hair and in nearby bushes were similar to wrap yarn used in the crepe bandages that the appellant wore on his knee. Although the evidence was that the yarn was of a common type this was nevertheless a coincidence of great significance.

64 Although the defence suggested that the swabs from the deceased may have been contaminated there was no evidence to support the assertion. It would suggest remarkable foresight by a police officer to anticipate the development of effective DNA analysis in future years. Ultimately the DNA evidence was compelling and together with evidence of proximity, opportunity and the presence of the bandage fibres I am satisfied that there was no inference consistent with innocence reasonably open on the evidence: Shepherd v R (1990) 170 CLR 573 at 579.

65 In my judgment the appeal should be dismissed.

66 GROVE J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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10/11/2009 - cover sheet - appellant's legal firm incorrectly stated - Paragraph(s) cover sheet