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

1. 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.

2. These proceedings were commenced by summons filed on 5 May 2023. That summons sought the following orders:

1. 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 the New South Wales Forensic and Analytical Science Service.

2. That the Commissioner of Police for New South Wales arrange additional forensic testing of the bandana used to gag Janine Balding on 8 December 1988 using Low Copy Number (LCN) DNA technology in a government and/or commercial laboratory nominated by the plaintiff if the Police Commissioner is unable or unwilling to access the same or similar technology at the New South Wales Forensic and Analytical Science Service.

3. On 27 March 2024, Mr Jamieson filed an amended summons which in terms sought an inquiry pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001. It also sought an order pursuant to Uniform Civil Procedure Rules 2005 r 5.3(1) that the defendants make the following things available to Mr Jamieson for inspection and/or analysis:

1. The reports of Michele Franco dated 4 December 2019 and 30 November 2023 together with all electronic and electropherogram records of the reports; and

2. The thatcher DNA report of Mark Wells dated 31 October 2023 unredacted as to loci together with all electronic and electropherogram records of the report.

4. This last mentioned relief is in the nature of orders for preliminary discovery pursuant to Part 5 of the Uniform Civil Procedure Rules 2005 and for the conduct of certain DNA testing, in reliance on s 97 of Crimes (Appeal and Review) Act. The Commissioner of Police for New South Wales and the Attorney General for New South Wales maintain that the Court's powers to make such orders were not originally relevantly engaged. However, on 27 March 2024, following the filing of the amended summons, I directed that the proceedings should be treated as an application for an inquiry into conviction pursuant to s 78(1) of the Crimes (Appeal and Review) Act.

5. However, following the hearing before me, and in the light of a discussion at that time about procedural formalities, Mr Jamieson filed a summons on 20 January 2025 in separate proceedings seeking the following relief:

1. An order under s 97(4) of CARA requiring the second defendant to comply with the plaintiff’s request on 5 November 2024 to:

1. Arrange for any biological material comprising reference samples from Mark Wayne Wells to be sent to the NSW Forensic and Analytical Science Service (FASS) for DNA testing;

2. Arrange for the testing of the biological samples from areas i, ii, v, vii, viii, xv and xvi of the bandana referred to in Ms Franco’s statement dated 30 November 2023, against the DNA profile of Mr Wells; and

3. As soon as reasonably practicable after such testing, forward to Legal Aid NSW, on behalf of the plaintiff, the results of the testing referred to in (a) and (b) above, including the documents and data on the FASS file.

2. An order that the second defendant comply with any of the plaintiff’s other requests dated 5 November 2024 in respect of which the second defendant has not provided written confirmation that:

1. The requested arrangements for testing have been made; and

2. The requested information will be provided.

3. Pursuant to s 97(3) of CARA, the plaintiff is to pay for the costs of the testing referred to at 1(a) and 1(b) above.

4. Such further or other orders as are considered appropriate.

6. Section 79 is in the following relevant terms:

79 Consideration of applications

(1) After considering an application under section 78 or on its own motion—

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if—

(a) it appears that the matter—

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

…

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

7. The Crown maintains that the threshold for ordering an inquiry under s 79(1) is not reached, in that the application does not raise any appearance of a doubt or question about Mr Jamieson’s guilt or as to any mitigating circumstances or part of the evidence in the case. Mr Jamieson maintains otherwise.

Comment

8. It is not in question that Ms Balding was killed in terrible circumstances. The crime attracted extraordinary publicity. It caused great distress to her family and friends, as well as to the community in general. It is therefore important to recognise that these legal proceedings have the regrettable and unavoidable potential to revive unpleasant memories for very many people. However, it is also critical to ensure that any criminal conviction is based on reliable evidence and that the rights of all accused are protected throughout the judicial process.

9. Four people were convicted of crimes following Ms Balding’s death. One of them was Mr Jamieson. It is well known that police recovered a bandana from the scene of this crime. It yielded viable DNA material. As will emerge in more detail later in these reasons, none of those convicted of Ms Balding’s murder, including Mr Jamieson, was a contributor to the DNA on that item. That fact achieves potential significance in the following circumstances.

10. Mr Jamieson maintains that he was not present when Ms Balding was killed. Mr Jamieson is of small stature and went by the nickname “Shorty”. He used to wear a bandana. An acquaintance of the convicted men was Mr Wells. He is of short stature, used to wear a bandana and also went by the nickname “Shorty”. Unlike those convicted of Ms Balding’s murder, Mr Wells has not been excluded as a contributor to the DNA on the bandana. That is so notwithstanding the fact that his DNA is physically available for comparison. The issue in these proceedings concerns the legal availability of that material.

11. It is sufficient for present introductory purposes to note that Mr Jamieson has always professed his innocence. Part of the material upon which he wishes to rely in seeking an inquiry into his conviction, should it become available, is the result of any comparison between Mr Wells’ DNA and that on the bandana. Mr Jamieson accepts that any finding that it is Mr Wells’ DNA on the bandana will not by itself exculpate him for the murder of Ms Balding. However, Mr Jamieson maintains that it may, when marshalled with other evidence, give rise to a doubt or question as to his guilt. Such other evidence upon which Mr Jamieson wishes to rely includes, but is not limited to, the testimony of his co-accused who all say he was not present when the crime was committed, expert linguistic analysis of the “confession” given by him to police and an examination of the circumstances under which it is said to have been made. Mr Jamieson accepts, if Mr Wells were to be excluded as a contributor to the DNA on the bandana, that such a finding would not assist him in his quest for an inquiry into his conviction.

12. Mr Jamieson’s present application for an inquiry should therefore be understood to be advanced on the basis that it ought to appear to the Court that there is a doubt or question as to his guilt or as to a part of the evidence in the case because: (a) a partial weak male DNA profile which did not originate from him has been recovered from the bandana; and (b) that DNA profile has not been compared to Mr Wells’ DNA profile, such that there is the as yet unanswered question of whether Mr Wells might be inculpated by such a comparison.

Nature of application for an inquiry

13. Unlike Mr Jamieson’s original summons proceedings, his application for an inquiry is not a judicial proceeding. Such an application is to be determined by the Chief Justice or a Judge authorised by the Chief Justice, acting non-judicially. As the Court of Appeal concluded in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [7], an application for an inquiry "cannot constitute part of the jurisdiction of the Court invoked by summons". Insofar as Mr Jamieson sought an inquiry by his summons (and/or amended summons), that process was incompetent. It is nevertheless open to the Court to treat any material relied upon in the summons proceedings as an application under s 78(1). The Crown maintains that the judicial proceedings initiated by the summons ought to be dismissed. That would be analogous to the course taken by Basten JA in Dacich v Director of Public Prosecutions [2020] NSWSC 1179. If the summons proceedings are to be treated as an application for an inquiry, no judicial proceeding should remain pending in the jurisdiction of the Court, as the relief there sought is either no longer sought or, for the reasons canvassed in the summons proceedings, cannot be granted.

14. Whether any steps similar to those sought in the amended summons would be taken in an inquiry if directed would be a matter to be determined by the judicial officer conducting the inquiry by reference to the provisions of Division 4 of Part 7 of the Crimes (Appeal and Review) Act.

15. The Court is required to dismiss an application for an inquiry unless satisfied of the condition in s 79(2), namely that "it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". As explained in the joint judgment in Attorney-General (Cth) v Huynh [2023] HCA 13:

"Read with s 79(2) and (3), s 79(1) can be seen to be enlivened where the Chief Justice or an authorised judge, having chosen to consider an application made by or on behalf of a convicted person under s 78(1), entertains a doubt or thinks there to be a question as to the convicted person's guilt or as to mitigating circumstances in the case or evidence in the case. Where s 79(1) is so enlivened, two distinct and alternative courses of action are open to the Chief Justice or the authorised judge under the terms of that provision. In choosing whether or not to pursue either course of action, the Chief Justice or authorised judge performs what Basten JA aptly described in the Court of Appeal as a 'gateway function'."

16. Speaking generally, it may "appear" to the Court that "there is a doubt or question" by reference to matters of fact or evidence, errors of law or "any other matter upon which a finding of guilt is dependent". While the possibly relevant considerations are broad, s 79(2) requires that the material in support of the application gives rise "as a matter of practical reality" to the appearance of a doubt or question. The doubt or question may relate (relevantly) to guilt or "to any part of the evidence in the case". In relation to the latter kind of doubt or question, McCallum JA (with whom Meagher JA agreed) observed in GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179 at [130] that:

"…the section is concerned with the soundness of the conviction (or sentence). The statute does not confer an entitlement to an inquiry, only an entitlement to seek one. Where the application relies on new evidence said to give rise to the appearance of doubt as to the evidence in the case, some evaluative judgment must be undertaken as to the cogency of the matters relied upon and their materiality to the soundness of the conviction."

17. In the present context, Mr Jamieson maintains that "as a matter of practical reality" the fact that no comparison between the DNA on the bandana and Mr Wells’ DNA has ever been conducted, when considered with other evidence, gives, or has the potential to give, rise to a doubt or question as to his guilt.

Notice of motion

18. In the light of these matters, Mr Jamieson filed a notice of motion returnable before me on 13 December 2024 in which he relevantly sought the following relief:

1. Pursuant to s 97 of the Crimes (Appeal and Review) Act 2001 an order that the Commissioner of Police, by 5pm on 16 December 2024, comply with Mr Jamieson’s request dated 5 November 2024 to:

1. arrange for any biological material comprising reference samples from Mark Wayne Wells be sent to the NSW Forensic and Analytical Science Service for DNA testing;

2. arrange for the testing of the biological samples from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Ms Franco’s statement dated 30 November 2023 against the DNA profile of Mr Wells, and

3. as soon as reasonably practicable after such testing, forward to Legal Aid NSW, on behalf of Mr Jamieson, the results of the testing referred to at (a) and (b) above including the documents and data on the Forensic & Analytical Science Service file.

2. An order that the Commissioner of Police, by 5pm on 16 December 2024, comply with any of Mr Jamieson’s other requests dated 5 November 2024 in respect of which the Commissioner has not, by 5pm on 29 November 2024, provided written confirmation that:

1. The requested arrangements for testing have been made; and

2. The requested information will be provided.

19. Before proceeding further, I note that the parties are agreed that I should in due course make, in lieu of the terms of order 2, an order in the following terms:

An order that the results of the DNA testing of biological material from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Michele Franco’s certificate dated 30 November 2023, comprising

(a) the Certificate/s of Analysis;

(b) the graphical representations of the DNA profiles (including in electronic form); and

(c) statistical interpretations, being the comparisons that were made along with their statistical significance (if any)

be provided to Mr Jamieson, subject to any redactions necessary to comply with s 97(8)(a) of the Crimes (Appeal and Review) Act 2001 except for the identity of a person convicted of the offences against Janine Balding (being Stephen Jamieson, Bronson Blessington, Matthew Elliott and Wayne Wilmot).

Issues for determination

20. The parties are agreed that at least the following issues, with varying degrees of difficulty and significance, arise for determination in these circumstances:

1. Whether s 97 of the Crimes (Forensic Procedures) Act 2000 precludes the NSW Forensic & Analytical Science Service from using information about Mr Wells’ DNA for the purpose of DNA testing under s 97 of the Crimes (Appeal and Review) Act.

2. Whether s 97 of the Crimes (Appeal and Review) Act applies to Mr Wells’ DNA information held by the Commissioner of Police.

3. Whether the testing sought by Mr Jamieson “of the biological samples from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Ms Franco’s statement dated 30 November 2023 against the DNA profile of Mr Wells” involves “DNA testing” of “retained biological material” in the terms of s 97 of Crimes (Appeal and Review) Act.

4. Whether s 97(8)(a) of the Crimes (Appeal and Review) Act precludes the Commissioner of Police from providing Mr Jamieson with information of “results” relating to individuals other than him.

5. If the answer to 1 above is “no” and the answer to 2 and 3 is “yes”, whether the Court should make a compliance order under s 97(5) of the Crimes (Appeal and Review) Act.

Procedural history

21. It is instructive before continuing to review the procedural history of Mr Jamieson’s trial and the subsequent proceedings that they spawned. The following summary is taken from the very helpful submissions provided by the Crown on 8 May 2024. None of the matters referred to in the summary is relevantly disputed for the purposes of the present application.

The trial

22. Mr Jamieson was first presented for trial in September 1989. He stood trial with Matthew Elliott and Bronson Blessington. Two other co-offenders, Wayne Wilmot and Carol Arrow, were dealt with in separate proceedings. Mr Jamieson maintained his innocence.

22. An issue arose in the course of the trial as to whether Mr Jamieson had been mistaken for Mr Wells and, thus, wrongly identified amongst the group responsible for the abduction, sexual assault and murder of Ms Balding. As already noted, both Mr Jamieson and Mr Wells were known as "Shorty" at the time. Justice Wood found that, prior to the close of the Crown case, there had been no reason for the Crown to suspect that the wrong Shorty had been identified or to investigate Mr Wells further. However, after Mr Blessington gave evidence inculpating Mr Wells, efforts were made to locate him. An interview occurred on 18 October 1989 during which Mr Wells admitted his presence at the scene but made certain allegations against Mr Jamieson. On 20 October 1989, counsel appearing on behalf of Mr Wells indicated that Mr Wells would claim the privilege against self-incrimination if called to give evidence. Given the lateness with which these events unfolded (after the close of the cases for the offenders), Wood J discharged the jury on 23 October 1989.

23. A second trial commenced on 24 May 1990 before Newman J. As described further below, the Crown case against Mr Jamieson relied on admissions made by him in an interview with police on 22 September 1988 and to another inmate, and on identification evidence. The DNA evidence at trial did not inculpate Mr Jamieson. Only Mr Blessington's DNA was identified when swabs taken from Ms Balding were tested. Mr Jamieson gave evidence, as did his co-offenders, that he was not the "Shorty" involved in the offences. In the defence case, Mr Jamieson’s counsel called Mr Wells and Mr Wells denied his involvement in the offences.

24. The evidence at the trial that related to the identification of "Shorty" was as follows.

Admissions to police

26. Mr Jamieson was arrested by police in Queensland on 22 September 1988. He participated in a record of interview that was tendered in the form of a transcript as an exhibit at the trial. There was no video recording. The interview was conducted by Detective Chief Inspector Raue and Detective Senior Sergeant Carroll. In the record of interview, Mr Jamieson admitted to being present amongst the group and to sexually assaulting Ms Balding. He described abducting her at knife-point from Sutherland and said it was "Matthew's plan". He said that, after Ms Balding was sexually assaulted near the car once it had stopped, he obtained some rope; Ms Balding was tied up and gagged; and Mr Elliott and Mr Wilmot took her to a dam in the paddock near the road. The record of interview was signed by Mr Jamieson in the presence of a justice of the peace, who gave evidence that he read through the record of interview with Mr Jamieson slowly and clearly.

27. Detective Senior Sergeant Carroll gave evidence that he recorded the questions and answers in his official notebook, which were later typed up for Mr Jamieson to sign. Both officers were cross-examined and a key plank of the cross-examination was that the answers recorded in the record of interview had been concocted in order to frame Mr Jamieson. They disagreed with that proposition.

28. Mr Jamieson’s evidence at trial was that he did not make the admissions that were recorded in the record of interview. He also led evidence from a psychologist that he suffered a "mental defect" or "mental retardation". The psychologist opined that it was unlikely that Mr Jamieson could have given the kind of lengthy answers contained in the recorded interview.

Admissions to prison informer

29. Witness A gave evidence at the trial in 1989 and died prior to the second trial. His evidence was tendered and read to the jury. Witness A stated that, while in gaol in October 1988, Mr Jamieson told him: "We killed a person … We pulled her over a fence and we dragged her to a creek … I held her underwater". Witness A also recalled Mr Jamieson providing details of the sexual assaults. He said that the date of the conversation in his statement was wrong. Witness A was cross-examined about a history of lying and to the effect that he became aware of Mr Jamieson’s name from media reports. Witness A disagreed and maintained his evidence. He denied making up his evidence for the purpose of obtaining favourable treatment when being sentenced for child sexual offences. Mr Jamieson denied ever speaking to Witness A.

Identification evidence

30. Elva Matyas and Andrew Lonergan gave evidence that they had seen Mr Jamieson in the company of the co-offenders. Ms Matyas recalled that, in the afternoon of 8 September 1988, she was travelling by train from Sydney to Mortdale when she observed a group of three or four boys and one girl speaking loudly and saying vulgar things. She heard them discussing going to Cronulla or Sutherland. Ms Matyas became aware of media reports in connection with the trial in 1989 that Mr Jamieson was maintaining that he had been misidentified. She attended the trial (which had adjourned) and was directed to speak to police. She was shown a series of photographs and identified one of Mr Jamieson as looking like a member of the group she had seen on the train. In cross-examination, Ms Matyas accepted that, during a voir dire, she had said she could not positively identify, from the accused males in the dock, the people she saw on the train. Ms Matyas was later recalled to make a dock identification of Mr Wells. She said she did not recognise him. She accepted that he was a similar build and height to the male she saw on the train, but noted that he had a bigger nose.

31. Mr Lonergan gave evidence that he knew Mr Elliot and saw him with three males and a female at Mt Druitt on the day of the offences. He said that when he saw reports of Mr Jamieson’s arrest in Queensland, he recognised him as one of the men he had seen with Mr Elliott. When Mr Lonergan attended the police station, he selected a photograph of Mr Jamieson. A photograph of Mr Wells was also included in the photographs shown to Mr Lonergan. Mr Lonergan was re-called to make a dock identification of Mr Wells and gave evidence that he was not the person he had seen with Mr Elliott at Mt Druitt.

32. Detective Chief Inspector Raue was cross-examined about why Mr Jamieson was not required to participate in a line-up for identification purposes. He explained that it was considered unnecessary because of Mr Jamieson’s admissions.

33. In the trial judge's summing up, the jury were instructed that identification evidence was to be "treated with very considerable caution". The jury were also instructed that "it is the experience of the criminal law that an identification parade is the best form of identification".

Exculpatory accounts

34. Mr Blessington gave evidence that the "Shorty" he described as committing the offences with Mr Elliott was Mr Wells. He said that he saw Mr Jamieson before the group took the train to Sutherland and that Mr Jamieson said he was going to Coogee to obtain drugs. The Crown drew attention to Mr Blessington's inability readily to identify a photograph of Mr Wells in 1989. There was evidence that Mr Blessington had told his solicitor at the time of the committal hearing that Mr Jamieson was not the relevant "Shorty".

35. Mr Elliott gave evidence that Mr Wells, and not Mr Jamieson, was amongst their group on the train to Sutherland. He said that he saw Mr Jamieson earlier that day and that he said he was going to Coogee with Elizabeth Lopez. Mr Elliott explained that when he had previously told police that a "Scott" was involved in the offences, a number of those references were actually to Shorty, being Mr Wells. He accepted that he referred to "Scott" because he "did not want to put Shorty in" and was trying to protect him.

36. Mr Wilmot gave evidence that Mr Jamieson was not amongst the group on the train from Wynyard to Sutherland and was not involved in the offending. He said that Mr Wells was present, but that he could not recall what he did.

37. Ms Arrow gave evidence that Mr Jamieson was not amongst their group at the time of the offences and that she did not see him that day. She said that Mr Wells was with the group at the time of the offences, but she also accepted that she was "not sure who" Shorty was.

38. Mr Jamieson gave evidence that on 8 September 1988 he saw Mr Wells, Mr Bronson, Mr Elliott, Mr Wilmot and Ms Arrow near Wynyard. He said that he, Ms Lopez and William Rowland went from there to Coogee. Mr Jamieson recalled that they went to the Coogee Bay Hotel and bought marijuana, returned to the city at approximately 2pm and then went to a squat to drink and smoke until approximately 10pm.

39. Mr Rowland gave evidence that he met Mr Jamieson on 8 September 1988 at Wynyard and also saw Mr Blessington, Mr Elliott, Mr Wells, Ms Arrow and Ms Lopez. He said that he, Mr Jamieson and Ms Lopez went to Coogee, returning to continue drinking at his squat in the Rocks. He recalled that Mr Jamieson left after 10pm. The Crown questioned Mr Rowland about having previously told a security officer at a hostel who was enquiring about Mr Jamieson that he (Rowland) departed the company of Mr Jamieson at Wynyard station at 2pm on the day in question. The Crown put to Mr Rowland that if he was with Mr Jamieson that day, they parted ways by 2pm at the latest. Mr Rowland denied this, saying Mr Jamieson left him at 10pm.

Evidence of Mr Wells

40. Mr Wells was called to give evidence by Mr Jamieson’s counsel. He said that his nickname was "Shorty". When first asked, "[h]ave you ever heard of a person by the name of Janine Balding", Mr Wells responded: "I don't want to answer any of these questions because they might incriminate me". The Crown then indicated that the Attorney General had provided limited indemnity against prosecution to Mr Wells in respect of his testimony. Mr Wells accepted that he met Mr Elliott and Mr Blessington on 8 September 1988. However, in later questioning he denied being with the group on the night of the murder. Mr Wells was asked about things he had said in his interview with police in 1989. For the most part, Mr Wells denied giving the answers he was recorded as having given during the interview, or said he couldn't remember. He gave evidence that, at the time of the interview, he was affected by marijuana. He also gave evidence that he had been hearing voices telling him to kill people, that he worshipped Satan, and that he had dreamt that a young blonde lady was gagged and drowned. He said that some of the information he gave police in 1989 was from a dream.

Evidence about the bandana

41. A bandana, also described as a black silk scarf, was used to gag Ms Balding and was recovered during the examination of her body. It was admitted in evidence at trial, having been identified by a police officer as "the gag that had been bound around the deceased's face and mouth".

42. Kristine Mobberly gave evidence that she had been approached by the group of co-offenders at Sutherland Railway Station, prior to Ms Balding's arrival. She said that she observed one male wearing "a long black piece of cloth tied around his head". She described this person as having a "real long face", a "bad pot [sic, pock] marked face" and "darkish" shoulder length hair.

43. Mr Elliott gave evidence that "Shorty" tied up Ms Balding and used "a head band kind of thing" to gag her. He confirmed that he was referring to Mr Wells' head-band. Mr Blessington gave evidence that Mr Wells was wearing a head-band. Mr Blessington also said that Mr Wells wore the band around his eyes and the lower part of his mouth. Ms Arrow recalled that one of the people in Ms Balding's car after she was abducted was wearing a "head band".

44. Mr Wells also gave evidence regarding bandanas:

"Q. At that stage [in September 1988] did you wear a headband?

A. When I was in Goulburn gaol, yes.

Q. In September 1988 you were not in gaol were you?

A. No.

Q. What I want to put to you is you had a headband, you wore a headband, is that possible?

A. I think it was a black one too."

Appeal

45. Mr Jamieson appealed against his conviction to the Court of Criminal Appeal on grounds that the Crown's failure to inform him of the indemnity against prosecution provided to Mr Wells occasioned a miscarriage of justice; that he ought to have been tried separately from Mr Elliott and Mr Blessington; that the directions given to the jury regarding the evidence of Ms Arrow and Mr Wilmot occasioned a miscarriage of justice; and that the verdict was unsafe and unsatisfactory.

46. Chief Justice Gleeson (with whom Hope AJA and Lee AJ agreed) described the question of whether Mr Jamieson "was the Shorty who was involved in the abduction and murder of Ms Balding" as "a serious and hard fought issue of fact" at trial. In that regard, his Honour observed that Ms Arrow and Mr Wilmot:

"…supported Jamieson's assertion that he was not present on the occasion, but in the course of giving evidence they comprehensively implicated Elliott and Blessington, and gave an account of the relevant events which, if accepted, demonstrated that Ms Balding was sexually assaulted and murdered as a result of the joint conduct of Elliott, Blessington and whoever was the real Shorty.

The respective suggestions of Elliott and Blessington that they were present whilst Ms Balding was being sexually assaulted, and bound and gagged, and taken to the dam, and drowned, but had no personal part in the activity, were implausible in the extreme. The only issue of fact that would have been likely to have presented the jury with any difficulty was whether Jamieson was the Shorty who was involved in Ms Balding's murder. There was no dispute that he was an associate of the other four persons involved, or that he went by the name of Shorty. There was also no doubt that there was another person named Shorty Wells. Wells was also a person of small stature, although otherwise he did not look anything like Jamieson. Photographs tendered at the trial made that clear, and, as will appear, the jury had both Jamieson and Wells before them. Jamieson is a person who is of very distinctive facial appearance."

47. The reasoning of Gleeson CJ with respect to the unsafe and unsatisfactory verdict ground, including the matters raised and argued by Mr Jamieson in connection with that ground, was in part as follows:

"There was a strong Crown case against the appellant. He confessed in a long and detailed record of interview. There was evidence that he made a further confession to a fellow inmate at a gaol. His photograph was picked out by a witness as one of the group of persons who travelled together on the train to Sutherland. He was identified by another witness as being a member of the group, with Elliott at Mt Druitt, at about the time of the killing. There were, it is true, issues of fact to be considered by the jury in relation to some of that evidence. The fellow inmate at the gaol gave as the date of the confession a date that must have been erroneous. He said this was a mistake. The man who claimed to have seen the appellant as part of a group at Mt Druitt only came forward and spoke to the police in January 1990, and had not given evidence at the first trial. Moreover, there was the circumstance that the co-accused asserted that the police had arrested the wrong Shorty. These were serious matters for the jury to consider. However, an examination of the evidence does not lead me to conclude that the verdict was unsafe or unsatisfactory.

There was a particular issue raised at the trial concerning the signed record of interview of Jamieson, and further evidence in relation to the same subject was adduced on the appeal.

At p 571 of the transcript, Jamieson admitted, in cross-examination, that it was his signature on the record of interview. He signed every page. However, a psychologist was called to give evidence to the effect that it was unlikely that Jamieson could have given some of the long, detailed answers recorded in the record of interview. An attempt was made on the appeal to take that matter further by 'fresh evidence'. That evidence was principally contained in an affidavit of Mr Lohrey, a research consultant at the Centre for Language and Literacy at the University of Technology in New South Wales. He expressed the opinion, on the basis of an analysis which he called 'stylometrics' that the utterances attributed to Jamieson in the record of interview had not come from a single person but had come from at least two sources. Mr Lohrey had not met or spoken to the appellant, but based his opinion upon an examination of the transcript of the appellant's evidence at the trial. The evidence in question lacks cogency, and there has been a failure to establish before this Court that what we have been favoured with is an expert opinion in a recognised field of scientific expertise. Furthermore, the 'fresh evidence' only pursues, in a slightly different form, the issue that was raised on behalf of the appellant at the trial. I do not consider that the conditions for the admissibility of the evidence have been satisfied …

Jamieson's appeal against conviction should be dismissed."

Application for special leave

48. Mr Jamieson sought Special Leave to Appeal to the High Court against the decision of the Court of Criminal Appeal. The application "centre[d] on" what was said to be misconduct by the Crown at the trial and the Court of Criminal Appeal's refusal to accept the fresh evidence which "attacked the authenticity" of the record of interview. Following oral argument on those matters, Brennan, Deane and McHugh JJ declined to grant special leave.

Previous application for an inquiry

49. On 15 June 2001, James J declined to grant an inquiry into Mr Jamieson’s convictions pursuant to Division 3 of Part 13A of the Crimes Act. The application was originally made in 1996, but following a preliminary judgment to the effect that James J was unlikely to direct an inquiry without further evidence, it was revised in 2000.

50. In determining the application, James J outlined the evidence given at trial, as well as the affidavit of Mr Lohrey which was before the Court of Criminal Appeal. His Honour also considered a report from Dr R J Gardner, a lecturer in linguistics, whose report accompanied the amended application. Dr Gardner compared the record of interview conducted with Mr Jamieson on 22 September 1988 against an interview with him conducted on 6 December 1995. The linguistic features identified by Dr Gardner in each interview were said to call into question the authenticity of the first record of interview. James J rejected this argument, saying:

"The conclusion I have reached is that the differences between the interview of 22 September 1988 and the interview of 6 December 1995 in the kinds of questions asked, the identity of the interviewers, the atmospheres and circumstances of the interviews and the methods of recording the interviews are such as to invalidate the attempted comparison of the two interviews.

In my opinion, the additional material consisting of Dr Gardner's report does not raise a doubt and does not give rise to a sense of uneasiness about the convictions of the applicant for the offences committed against Ms Balding. Accordingly, I decline to order that an inquiry be held into the convictions of the applicant and I dismiss the application."

New material arising from DNA testing

51. All of the matters referred to above under the heading “Procedural history” predate the recent DNA developments upon which Mr Jamieson now relies to support the present application. Accordingly, any decisions or conclusions previously formed, whether in the judicial or appellate contexts or pursuant to James J’s inquiry, were made or reached without the benefit of what has now emerged and also without the prospect that further DNA revelations may come to light. Mr Jamieson contends that both of these developments place previous examinations of the evidence in a significantly different setting so that a further inquiry is warranted.

51. The material which falls for consideration, in terms of whether it now appears to the Court that there is a doubt or question for the purposes of s 79(2) of Crimes (Appeal and Review) Act, concerns the DNA testing of the bandana that has taken place since the determination of the previous application for an inquiry. That testing can be summarised as follows.

52. Following Mr Jamieson’s request to the Innocence Panel, testing was conducted in 2003 which identified a partial DNA profile consistent with Ms Balding. Testing on four other areas of the bandana was unsuccessful. At the request of Mr Jamieson to the DNA Review Panel, a report by Michele Franco was provided to him in June 2008, which stated:

"DNA testing (using the Profile Plus System) was conducted on five areas (areas vi, vii, viii, ix and x) cut from the gag (cloth), also known as the 'bandana'. DNA testing of each of these areas was unsuccessful.

DNA testing using Y-filter* was conducted on the DNA extract retained from area v of the gag. This test was also unsuccessful.

* Y-filter analyses the male component of DNA by targeting the Y chromosome (only present in males). …"

54. Following further requests by Mr Jamieson to the DNA Review Panel, more testing was conducted and the results were provided to him in February 2014. Hair from the knot of the bandana was found to be consistent with that of Ms Balding. Two cut-outs from the bandana returned DNA results. In respect of the first cut-out (area xii), Ms Balding and Mr Elliott were identified as the potential contributors of the DNA. In respect of the second cut-out (area xiii), the report recorded:

"Major contributor could be Matthew ELLIOT. Traces of DNA from at least one other individual was also recovered."

55. In March 2019, Mr Jamieson made a request, pursuant to s 97 of the Crimes (Appeal and Review) Act, that further testing be carried out on the bandana in order to identify the "other individual" whose traces of DNA were detected in 2014. A report of the results, dated 4 December 2019, excluded Mr Jamieson as the contributor to DNA that was recovered (including from area (viii)).

56. As a result of further requests made on behalf of Mr Jamieson, Ms Franco performed additional testing on parts of the bandana (including area (viii)). In an expert certificate date 30 November 2023, she reported that:

"Further DNA testing using the PowerPlex 21 System was carried out on DNA extracts from the gag (cloth), also known as the bandana …, areas (i), (ii), (v), (vi), (vii) and (viii). An additional two areas (areas (xv) and (xvi)) were cut from the bandana for DNA testing.

A partial weak male DNA profile was recovered from area (viii) of the bandana. This profile is only suitable for exclusionary purposes and due to the partial nature of the profile, the number of contributors could not be determined. If it is assumed that the profile originates from only one individual, then this profile could not have originated from Stephen Jamieson. This profile may also be compared to other male reference profiles for exclusionary purposes. There is no DNA extract remaining from this area as the sample has been exhausted.

DNA testing of areas (i), (ii), (v), (vi), (vii), (xv) and (xvi) were too weak for interpretation."

Evidence given before me on 13 December 2024

57. Clinton Mark Cochrane is the Acting Operations Director, Criminalistics, in the New South Wales Health Pathology Forensic and Analytical Science Services. His affidavit affirmed on 11 December 2024 was read without objection. Mr Cochrane has operational oversight of the department that is responsible for DNA testing.

58. Mr Cochrane gave the following evidence with respect to the DNA material detected on the bandana and the four men convicted of the murder of Ms Balding:

“Q. So with that, did you test Stephen Jamieson's reference sample against the PowerPlex profile?

A. It was compared, yes.

Q. And was he excluded as a possible contributor?

A. Yes, he was, if that profile originated from a single individual.

Q. Did you test Stephen Jamieson's reference sample against the Yfiler profile?

A. Yes, he was also excluded from that profile.

Q. In relation to Stephen Jamieson's various applications over the years to DNA Innocence Panel and to this Court, FASS has a file or a couple of files in relation to testing that's been done as a result of those applications, doesn't it?

A. It does.

Q. There is a report, or a statement in fact, under the hand of Michelle Franco.

…

Q. And on the first page of that statement it says this:

‘DNA testing using the PowerPlex 21 system was conducted on the reference samples from Janine Balding, Stephen Jamieson, Bronson Blessington and Matthew Elliott.’

Can you see that?

A. I can, yes.

Q. So that means that FASS has reference samples from all of those named people?

A. Yes.

Q. And obtained DNA profiles using PowerPlex 21 from those reference samples?

A. That's correct.

Q. All right. And in that particular report, Matthew Elliott was found to be a possible contributor to two areas of the bandanna, being area 12 and 13?

A. Sorry, can you repeat that question?

Q. Matthew Elliott was found to be possibly one of the two contributors to area 12 and 13 of the bandanna?

A. So in area 12…

Q. Yep?

A. …he was - he could have been one of the two contributors. In area 13 it doesn't list how many contributors are there necessarily but he is labelled as…

Q. The major contributor?

A. … the major contributor in that profile.

Q. Okay. And Stephen Jamieson wasn't listed as a contributor to any of it?

A. No, that's correct.

Q. Then if you just now go all the way forward to the expert certificate of Ms Franco dated 30 November 2023?

A. Sorry, yes.

…

Q. This is the report about area 8 of the bandanna and this is the one that I have been asking you questions about, yes? Area 8?

A. Yes, yes, that's correct, sorry, yes.

Q. And the opinion that she expresses there was an opinion that you agreed with in your affidavit?

A. That's right.

Q. And the opinion was that if it's assumed that the profile originates only from one individual then it could not have originated from Stephen Jamieson; that's right?

A. That's part of that answer, yes.

Q. That's consistent with what you have already told us?

A. Yes.

Q. But then it also says this:

‘This profile may also be compared to other male reference profiles for exclusionary purposes.’

Yes?

A. Correct.

Q. FASS had the profile of Bronson Blessington and Matthew Elliott, didn't it?

A. It did, yes.

Q. Is there a reason why that comparison was not made as part of the testing on area 8 of the bandanna?

A. In the instruction to the laboratory regarding this testing, there was a component of the submission that said according to the relevant Act we were to test specific for Mr Jamieson's profile.

Q. So whoever asked FASS to do the testing asked for testing to be done only in relation to Stephen Jamieson's reference sample, is that right?

A. Yes.

Q. When you provided that expert report, it is noted that it could be compared to other male reference profiles but nobody ever asked you to do that: nobody ever asked FASS to do that?

A. I would say no one has formally asked us to do that, yes.

Q. Okay. Who has asked informally?

A. We have been asked if it has been compared informally probably in - in several times during legal discussions.

HIS HONOUR

Q. I think you were asked who asked you informally though?

WILSON

Q. Yes?

A. In terms of has this been tested for exclusionary purposes, I've got some legal advisers within New South Wales Health Pathology who have asked if that's been there. The Crown Solicitor's Office has also asked generally has that been tested against other reference samples.

Q. I see, sorry. So people have asked you whether it's been done, not they haven't asked you to do it?

A. No, not officially or we haven't been asked to table a report regarding those people.

Q. Okay. Has anyone told you not to do it?

A. Basically we've been - we were directed back to that instruction that we were to restrict our response back to the - Mr Jamieson.

Q. In terms of doing that, given you have got reference samples from at least Bronson Blessington, Matthew Elliott, that comparison with the sample from area 8 could be done very quickly and easily by you, couldn't it?

A. Yes.

Q. Could be done now?

A. Yes.

Q. Can you do it now?

A. Sure.

Q. Do you have the…

A. I have the profiles here.

Q. … the underlying data?

A. I do. Sorry, which names were you pointing out there?

Q. First let's go with Bronson Blessington?

A. Okay. He is excluded from being a contributor to this profile, if it is assumed it is a single source profile.

Q. Okay. So Bronson Blessington is excluded?

A. Correct.

Q. What about Matthew Elliott?

A. He is also excluded.

Q. There is another male person of interest - or I withdraw that - it's on the public record as being convicted in relation to the murder of Janine Balding - Wayne Wilmot. Does FASS have a reference sample for him?

A. Yes, we do.

Q. Do you have that with you?

A. I do, yes.

Q. And what is the situation with him and area 8 on the bandanna?

A. He is also excluded.”

59. The significance of this evidence is referred to later in these reasons

Possible outcomes if testing were to take place

60. The following exchanges on 13 December 2024 between me and Mr Wilson of senior counsel for Mr Jamieson should be noted:

“WILSON: Order 1 to do the testing against Mr Wells' DNA profile, because if that testing, whatever its results, will be important in the determination for an application for an inquiry. Given the evidence of Mr Cochrane today, that the four convicted offenders, Mr Jamieson, Mr Wilmot, Mr Blessington and Mr Elliott, have all been excluded as possible contributors. He said that that was unaffected by whether it is a mixed profile or not. He said the likelihood ratios and the statistics are affected, but the exclusion factors are [not]. So, the evidence before this court is that they could not have contributed.

Then the two possible results we have from the testings of Mr Wells is that he is either excluded or he is not. If he is excluded that does not advance the [Part 7] application. If he is not excluded that takes on a much greater significance than it might otherwise have taken, with or without the likelihood of ratios because these four men have now been excluded. If he cannot [be] excluded, that becomes very powerful evidence in support of Mr Jamieson's contention that he was not the person but Mr Wells was the person.

HIS HONOUR: Mr Jamieson's conviction is in a different category to the other three, isn't it?

WILSON: Yes.

HIS HONOUR: No one has cast doubt upon the conviction of the others?

WILSON: No. No, the state of you [as said] dispute, as it were, has been for many years now, whether the police got the right ‘Shorty’.

HIS HONOUR: I understand that.

WILSON: As a matter of scientific reality each of those outcomes is a possibility. The comparison from Mr Cochrane, he could have done it in the witness box. It could be done quickly and easily.

HIS HONOUR: He can do it in the witness box because the statistical analysis has already been done.

WILSON: The obtaining of the profiles had been done.

HIS HONOUR: So he is only telling you what he already knows.

WILSON: In my submission the only thing which has stood in the way of the testing of the bandana against Mr Wells' DNA has been the police unwillingness to do so in the context of a police investigation. That is a factor that goes, in my submission, towards the exercise of the court's discretion to make the orders.

There are compelling reasons, in the interests of justice, and in the public interest why this testing should be done. They are reasons that go to the very heart as to the purpose of Part 7 of the Crimes and Review Appeal Act. They are reasons that are so compelling, in my submission, that even if the Court considered the Commissioner was constrained by s 97(1A), the Court should nevertheless make the order. In my submission that is why the Court should make the orders sought.

HIS HONOUR: The overarching burden of your submission is, putting aside Mr Wells, who could complain about a comparison taking place? I know that is not a legal test, but in terms of an understanding of a discretionary point, that is your proposition, or one of them?

WILSON: Yes, your Honour.” [Emphasis added]

61. In summary, the present position is that the partial DNA profile recovered from the bandana, as a result of the testing described above, has (apparently) not yet been compared against a DNA profile for Mr Wells. Indeed, prior to 2 November 2023, information about Mr Wells' DNA profile was not even held by the New South Wales Police Force. However, on that date, information about Mr Wells' DNA profile was obtained from Queensland. There is therefore no longer any practical or scientific impediment to a comparison being made between the DNA on the bandana and Mr Wells’ DNA. The Crown maintains that there is a legal impediment to that occurring. The issues for determination are directed towards the resolution of that dispute.

Use of Mr Wells’ DNA profile: summary of Crown contentions

62. Before proceeding to deal with the intricacies of the competing arguments on the issues raised for determination on Mr Jamieson’s notice of motion, the following introduction to the Crown’s position may be instructive.

63. The Crown maintains that there is presently a statutory bar on using the information held by the police about Mr Wells' DNA profile for the purposes of a comparison with the "partial weak male DNA profile" recovered from the bandana in November 2023. In relation to DNA information that is transmitted between States, s 97(1A) of the Crimes (Forensic Procedures) Act relevantly provides:

"(1A) Information that is transmitted under this section must not be used except for the following purposes-

(a) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of a jurisdiction that is a party to the arrangements".

64. The arrangement in place between Queensland and New South Wales pursuant to s 97(1) of the Crimes (Appeal and Review) Act 2001 concerns the transmission of DNA information about individuals where a match has been identified (for example, as between a DNA profile recovered from a crime scene and a DNA profile obtained from an offender) via the National Criminal Investigation DNA Database. No such match was identified in this case because the partial weak DNA profile has not been included on the National Data Base due to its limited quality. The requirement that DNA be of a particular standard before it is included on the National Data Base is understandable as a partial DNA profile might return matches to multiple individuals who share that limited DNA information.

65. Additionally, Mr Wells was neither a party to the summons proceedings and has no role to play in the application for an inquiry. As far as the Crown is aware, Mr Wells does not know of Mr Jamieson’s requests to compare his DNA profile, obtained from Queensland, against the partial weak DNA profile recovered from the bandana. Although s 97 permits an applicant to request certain testing to be undertaken of "retained biological material" (such as on the bandana), sub-s 97(8)(a) makes clear that such testing is not to result in that applicant being provided with "information that may reveal the identity of a person other than [himself] in connection with the offence for which he … was convicted".

66. The Crown does not suggest that s 97(8)(a) applies directly or in terms because it is understood that Mr Wells' DNA profile and the partial weak DNA profile recovered from the bandana could now be compared without further testing of biological material (i.e. without resort to physical samples). But a legislative purpose to protect the identity of third parties can be discerned in s 97(8)(a), and this concern may be particularly acute where use of a person's DNA profile by comparison against a partial weak DNA profile that is not worthy of inclusion on the National Data Base is proposed.

67. In these circumstances, the Crown considers that it is presently unable as a matter of law to compare Mr Wells' DNA profile against the partial weak DNA profile recovered from the bandana.

How and when did NSW Police obtain Mr Wells’ DNA profile?

68. As adverted to already, NSW Police began taking steps in June 2023 to obtain Mr Wells' DNA profile from Queensland Police. On 7 June 2023, an email was generated internally within NSW Police in the following terms:

“Afternoon [redacted]

Can we please check with our QLD colleagues if the below person [i.e., Mr Wells] has a DNA sample on NCIDD. NCIS indicates he may.

This relates to the homicide of Janine Balding as part of an Office of General Counsel response to one of the convicted offender [sic] for this matter. I don't have an event as this is pre COPS.”

69. The following day, a request was sent to Queensland Police in the following terms:

“Good morning QPOL

Can you please advise if you have DNA on file for the below POI as it relates to a NSW Cold Case Homicide.

POI: Mark Wayne Wells DOB: [redacted]

CNI: [redacted]

If you do I will send a thatcher for the DNA profile.”

70. Queensland Police responded as follows:

“Good morning [redacted]

QPS does have a DNA record for Mark Wayne Wells [redacted] and it is recorded on NCIDD.”

71. More than three months later, on 30 October 2023, an Intelligence Analyst & NCIDD Administrator within NSW Police formally requested Queensland Police to provide Mr Wells' DNA profile. The terms of the request were (in part) as follows:

“Can we please request the DNA profile (aware that its Profiler Plus) for the below POI as it relates to an onoging [sic: ongoing] homicide.”

72. An Inspector from the NSW Police Forensic Evidence and Technical Services Command signed the request certifying that:

"the New South Wales Police is lawfully able to receive the requested information detailed in this form, according to the provisions of the NSW - Crimes (Forensic Procedures) Act 2000".

73. On 2 November 2023, Queensland Police provided the requested profile. A Senior Sergeant from the Queensland Police Force certified that:

"Queensland Police can lawfully supply the DNA information referred to in this form under the provisions of the QLD - Police Powers and Responsibilities Act 2000".

74. Queensland Police noted that Mr Wells' DNA information was obtained from "An arrested or Convicted Person" and in circumstances where Mr Wells was charged with indictable drug offences in 2011.

75. The DNA profile of Mr Wells that was provided to NSW Police is sufficient to use for exclusionary purposes against the profile recovered from area (viii) of the bandana.

76. If the profile recovered from area (viii) is compared to Mr Wells' DNA profile for exclusionary purposes, there are three possible results:

1. Mr Wells is excluded;

2. Mr Wells cannot be excluded;

3. Mr Wells cannot be excluded together with a likelihood ratio.

77. It is Mr Jamieson’s submission that if the result of the comparison is either (b) or (c), having regard to the persistent issues raised about the identity of the offender "Shorty" over many years including at Mr Jamieson’s trial and appeal, then this would provide powerful support for his application under Part 7 for a further inquiry into his convictions.

78. In contrast, the Crown’s position is that the male DNA profile recovered from the bandana is partial and weak and may only be used for exclusionary purposes. It cannot be used positively to identify the contributor or contributors of that DNA. As explained by Ms Franco, the number of contributors to the profile identified in November 2023 cannot be determined. As a result, even on the hypothesis that Mr Wells cannot be excluded as a contributor, that would not give an inquiry cause to overturn Mr Jamieson’s conviction. Because of the partial and weak nature of the DNA profile, Mr Wells cannot be identified as the contributor and numerous individuals could share the limited DNA information that comprises the profile, assuming the profile originates from only one individual. Further, as recorded on Ms Franco's certificate of 30 November 2023, the certificate says, “There is no DNA extract remaining from this area as the sample has been exhausted”.

Issue 2

137. Section 97 of the Crimes (Appeal and Review) Act would in my opinion clearly apply to Mr Wells’ DNA and overrides any express or implied restriction upon the use of his DNA material that may otherwise appear to exist. To start with, s 97(1) of that Act applies to biological material that is in the possession or control of members of the NSW Police Force or members of any other authority of the State in connection with an offence for which the person has been convicted. “In connection with” does not limit or restrict the biological material to Mr Jamieson’s DNA. As the email sequence makes plain, the NSW Police hold Mr Wells’ DNA “in connection” with offences committed by Mr Jamieson. The request for Mr Wells’ DNA profile was made “as it relates to an ongoing homicide”. The expressions “in connection with” and “in relation to” must mean the same thing in this context.

138. In this case, as Mr Jamieson contends, the trace DNA on the bandana is clearly “biological material’ retained in connection with offences for which he has been convicted. He seeks only that the Forensic & Analytical Science Service undertake further testing of the bandana against the profile of Mr Wells’ DNA. Section 97(2) of the Crimes (Appeal and Review) Act specifically contemplates such a request, consistently with the recommendations of the review that abolished the DNA Review Panel.

139. I understand that, on one view, s 97 is capable of being read more narrowly so as to be limited to requests by a convicted person or their legal representative for DNA testing of retained biological material solely for the purpose of obtaining DNA profiles from that material without comparing, or testing them, against other profiles such as reference samples from suspects or persons of interest. However, as Mr Jamieson has submitted, such an interpretation is inconsistent with the recommendations of the review which abolished the DNA Review Panel, and in fact, contradicts them. More fundamentally, in my view, such an interpretation is inconsistent with the purpose of the Crimes (Appeal and Review) Act and deprives the section of the force it should be accorded in the context of Part 7 of that Act as a whole. Section 97 is not in my view limited or restricted to permitting or enabling a convicted person to ascertain only his or her own position with respect to DNA recovered from biological material that is connected to the offence for which he or she is convicted. Mr Wells’ DNA is in my view in the possession or control of members of the NSW police force in connection with an offence for which Mr Jamieson has been convicted. By reason of the path taken by Mr Wells’ DNA to the NSW police, it must be in the possession of the NSW police in connection with an offence committed by Mr Jamieson.

140. “DNA testing” should be read as contemplating both the obtaining of DNA profiles from any retained biological material, and comparing those profiles with, or testing them against, any known DNA profiles. To interpret the provision otherwise would potentially render any request by a convicted person under the section pointless. The convicted person or his or her legal representative would not have a DNA database or a set of DNA profiles or reference samples from suspects with which to compare any profile identified on retained biological material.

141. Such an interpretation of “DNA testing” is also consistent with the terms of s 96 of the Crimes (Appeal and Review) Act. In s 96(3), one of the exceptions to the duty of police to retain biological material is where:

(d) The material has already been subject to DNA testing and the testing indicates that it relates only to the convicted person concerned.

142. Mr Jamieson, through his legal representatives, has made a request of the Commissioner of Police to provide retained biological material in accordance with s 97(2) of the Crimes (Appeal and Review) Act and has sought an order from the Court pursuant to s 97(4) of the Act that the Commissioner comply with the request made to her. It is not in contest that the conditions referred to in s 97(5) of that Act have been satisfied.

143. The definition of “biological material” in s 74 of the Crimes (Appeal and Review) Act would extend to and include the trace DNA on the bandana and the DNA information relating to Mr Wells retained by the Commissioner of Police.

Issue 3

144. See [103] above.

Issue 4

145. The Crown contends that s 97(8)(a) of the Crimes (Appeal and Review) Act precludes the Commissioner from providing such information in certain circumstances. That sub-section is in these terms:

(8) Nothing in this section permits-

(a) the Commissioner of Police (or the head of any other authority of the State) to provide information that may reveal the identity of a person other than the convicted person in connection with the offence for which he or she was convicted, …

146. “Reveal” means to make previously unknown or secret information known to others. Mr Wells’ identity is neither unknown nor secret. It is certainly not unknown to or a secret from Mr Jamieson. I do not accept that there is in the circumstances of this case any prohibition or restriction upon the provision to Mr Jamieson or his legal advisers of the material that is sought.

147. Properly understood, the sub-section directs attention to the identity of the proposed recipient of the particular information. So, for example, the provision of information containing reference to the identity of a named person to a person who was already aware of that identity could not amount to or constitute a revelation of that information. This is such a case.

Conclusions

148. In these circumstances, I consider that I should draw the following conclusions on the principal issues raised:

1. Section 97 of the Crimes (Forensic Procedures) Act 2000 does not preclude the Forensic Analytical & Scientific Service from using information about Mr Wells' DNA profile obtained from the Queensland Police Service for the purpose of DNA testing under s 97 of the Crimes (Appeal and Review) Act.

2. Section 97 of Crimes (Appeal and Review) Act applies to Mr Wells' DNA profile information held by the Commissioner of Police.

3. The testing sought by Mr Jamieson "of the biological samples from areas i, ii, v, vii, viii, xv and xvi of the bandana referred to in Ms Franco's statement dated 30 November 2023 against the DNA profile of Mr Wells" does involve "DNA testing" of "retained biological material" in the terms of s 97 of the Crimes (Appeal and Review) Act.

4. Section 97(8)(a) of the Crimes (Appeal and Review) Act does not preclude the Commissioner of Police from providing Mr Jamieson with information or "results" relating to individuals other than him.

149. I consider that a compliance order should be made by me under s 97(5) of the Crimes (Appeal and Review) Act requiring the Commissioner of Police to comply with Mr Jamieson's request because:

1. several of the offences for which Mr Jamieson was convicted were punishable by imprisonment for life or 20 years or more and he in fact received a life sentence: s 97(5)(a)).

2. Mr Jamieson's claim of innocence may be affected by DNA information obtained from biological material retained by members of the NSW Police: s 97(5)(b).

3. Mr Jamieson is still subject to the sentence imposed for the offences and remains in custody: s 97(5)(c).

150. I also consider that to the extent that the Court has a discretion whether to make the compliance order, the interests of justice and the public interest in maintaining the integrity of convictions call for the testing to be undertaken. The same interests call for the requested testing to be undertaken. The results of any testing or comparisons that may be made as the result of my orders taking effect will not foreclose the outcome of Mr Jamieson’s Part 7 application, but a failure to conclude the investigation by conducting the tests and making the comparisons would in my opinion create an enduring sense of community unease.

Orders

151. I will direct the parties to bring in short minutes of orders to reflect my reasons. It may be necessary at that time to regularise the procedural aspects that will potentially require attention having regard to the summons filed by Mr Jamieson on 20 January 2025 in proceedings 2025/23637 and the terms of the orders that he seeks.

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Decision last updated: 24 February 2025