Jamieson v Attorney General for NSW - [2025] NSWSC 92

Supreme Court

New South Wales

Medium Neutral Citation: Jamieson v Attorney General for NSW [2025] NSWSC 92
Hearing dates: 13 December 2024
Date of orders: 24 February 2025
Decision date: 24 February 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision:
Direct the parties to bring in short minutes of orders to reflect my reasons.

Catchwords:
EVIDENCE – DNA – application for an inquiry into conviction pursuant to s 78(1) of the Crimes (Appeal and Review) Act – whether s 97(1A) Crimes (Forensic Procedures) Act 2000 precludes or prevents NSW FASS from using information obtained from another jurisdiction for the purpose of DNA testing – order sought pursuant to s 97 of the Crimes (Appeal and Review) Act 2001 – retained biological material – meaning of “DNA testing”

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), Pt 7, ss 74, 78, 79, 96, 97, 109
Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2013 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW), s 97, 115
Crimes Act 1900 (NSW)
Evidence Act 1995 (Cth), s 138
Police Powers and Responsibilities Act 2000 (Qld), ss 493, 533, sch 6
Police Powers and Responsibilities Regulation 2012 (Qld), r 25, sch 6
Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1)

Cases Cited:
Attorney-General (Cth) v Huynh [2023] HCA 13
Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138
Dacich v Director of Public Prosecutions [2020] NSWSC 1179
GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179
Jamieson, Elliott & Blessington v R (1992) 60 A Crim R 68
Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177

Category: Principal judgment
Parties: Stephen Wayne Jamieson (Plaintiff)
Attorney General for NSW (First Defendant)
Commissioner of Police for NSW (Second Defendant)
Representation:
Counsel:
R Wilson SC with C O’Neill and S Howell (Plaintiff)
G Wright SC with E Jones (Defendants)
Solicitors:
Legal Aid NSW (Plaintiff)
Crown Solicitor’s Office (Defendants)

File Number(s): 2023/144278
2025/23637
Publication restriction: NIL

JUDGMENT

HIS HONOUR:

Introduction

On 22 June 1990, following a trial by jury in this Court, Stephen Wayne Jamieson was convicted of the sexual assault and murder of Janine Balding on 8 September 1988. Mr Jamieson is currently serving a sentence of life imprisonment. His appeal against conviction was unanimously dismissed by the Court of Criminal Appeal in 1992. A subsequent application for Special Leave to Appeal to the High Court was also dismissed. In 2001, Mr Jamieson’s application to this Court for an inquiry into his conviction, pursuant to Division 3 of Part 13A of the Crimes Act 1900 (as then in force), was dismissed by James J.
These proceedings were commenced by summons filed on 5 May 2023. That summons sought the following orders:

That the Commissioner of Police for New South Wales add the DNA profile of Mark Wayne Wells born December 1961 to the National Criminal Investigation DNA Database and make a reference sample of Wells' DNA available to the Evidence Recovery Unit of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 92
Decision Date: 24 February 2025

CaseChat Overview and Summary

The case of Jamieson v Attorney General for NSW involved the applicant, Jamieson, who sought an inquiry into his conviction under section 78(1) of the Crimes (Appeal and Review) Act 2001. The primary dispute was whether section 97(1A) of the Crimes (Forensic Procedures) Act 2000 precluded or prevented the New South Wales Forensic and Analytical Services Section (FASS) from using information obtained from another jurisdiction for the purpose of DNA testing. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was the interpretation of section 97(1A) of the Crimes (Forensic Procedures) Act 2000 and its effect on the use of retained biological material obtained from another jurisdiction for DNA testing. The court was tasked with determining whether this section restricted the use of such material in the context of an application for an inquiry into conviction under the Crimes (Appeal and Review) Act 2001. Additionally, the court needed to clarify the meaning of "DNA testing" as it applies to retained biological material.

In resolving these issues, the court examined the legislative framework and the purpose of section 97(1A). It concluded that this section does not preclude or prevent the use of information obtained from another jurisdiction for the purpose of DNA testing when it comes to an application for an inquiry into conviction. The court held that the term "DNA testing" encompasses the use of retained biological material to perform DNA analysis, and therefore, the NSW FASS could utilise such material for testing purposes. The application for an inquiry into the conviction was thus not barred by the provisions of section 97(1A).

The Supreme Court granted the application for an order under section 97 of the Crimes (Appeal and Review) Act 2001, allowing the use of retained biological material obtained from another jurisdiction for the purpose of DNA testing in the context of the inquiry into the applicant's conviction.

Orders