R v ABISAAB - [2006] SASC 349

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ABISAAB
[2006] SASC 349
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Anderson and The Honourable Justice White)
28 November 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against convictions - application for leave to appeal on additional grounds - appellant convicted of five counts of armed robbery - three counts involved use of a syringe, two counts involved use of a firearm - prosecution case that all five offences committed by one person - DNA of appellant found on syringe cap found at scene of one robbery - syringe cap later destroyed by police before testing by accused - whether the trial judge erred in permitting the DNA evidence to be led - whether trial was unfair as a result - whether trial judge misdirected the jury as to the use to be made of the DNA evidence and as to the sequence in which the issues should be considered.
Held: no error in admitting DNA evidence - no misdirection by trial judge - application for leave to appeal granted - appeal dismissed.
Road Traffic Act 1961 (SA) s 47K(2a), referred to.
R v Lobban (2000) 77 SASR 24; Police v Hall [2006] SASC 281; R v Clarke (2003) 87 SASR 203, discussed.
Sutton v The Queen (1984) 152 CLR 528; R v Radford (1986) 133 LSJS 110; R v Dunn (2006) 94 SASR 177; R v Baltensperger [2006] SASC 246; R v England (2002) 219 LSJS 262, considered.

R v ABISAAB
[2006] SASC 349
Court of Criminal Appeal: Debelle, Anderson and White JJ

DEBELLE J: I agree with the substance of the reasons of White J. I would grant leave to the appellant to appeal against his conviction on grounds six, nine and 13. However, I would dismiss the appeal.
ANDERSON J I agree with the reasons of White J. I would also grant leave on grounds six, nine and 13 and dismiss the appeal in relation to all grounds.
WHITE J: The appellant was found guilty by a jury of five counts of armed robbery.
Leave to appeal against those convictions was granted by the Chief Justice on four grounds, and the application for leave on one ground was reserved for consideration by the Full Court. In addition, the appellant renewed his application for leave to appeal on three grounds on which leave had been refused by the Chief Justice. However, at the hearing of the appeal and of the application for leave on the further grounds, Mr Borick QC, who appeared for the appellant, indicated that the appellant wished to argue two principal points only. These were the alleged…

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.

Continue reading R v ABISAAB

Details

AGLC: R v ABISAAB [2006] SASC 349
Case: [2006] SASC 349
Decision Date: 28 November 2006

CaseChat Overview and Summary

The case of R v ABISAAB involved an appeal against convictions where the appellant was found guilty of five counts of armed robbery, three involving the use of a syringe and two involving the use of a firearm. The prosecution argued that all five offences were committed by one individual, and the appellant's DNA was found on a syringe cap from one of the robbery scenes. The syringe cap was destroyed by the police before the appellant could test it independently, leading to the appellant's application for the DNA evidence to be excluded as unfair. The trial judge, however, permitted the evidence to be led, and the appellant was convicted.

The legal issues before the court were whether the trial judge erred in admitting the DNA evidence and whether the trial was unfair due to the destruction of the syringe cap, and whether the trial judge misdirected the jury on the use of the DNA evidence and the sequence of issues to be considered. The court needed to determine if the exclusion of the DNA evidence would have rendered the trial unfair and whether the trial judge provided correct directions to the jury regarding the evidence.

The court found that there was no error in admitting the DNA evidence, as the unfairness relied upon by the appellant was not sufficient to warrant exclusion under the general unfairness discretion discussed in previous cases such as R v Lobban. The court also held that the trial judge did not misdirect the jury with respect to the DNA evidence or the sequence of issues. Consequently, the application for leave to appeal on additional grounds was granted, but the appeal was dismissed in all respects.

This decision underscores the court's stance on the admissibility of DNA evidence and the application of the general unfairness discretion, reaffirming that the destruction of evidence by police does not automatically render a trial unfair if other relevant evidence can still be presented. The court's ruling ensures that the appellant's convictions stand, affirming the integrity of the trial process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Approximately one month after the destruction of the cap, a separate investigation by the police revealed a match of the DNA with a sample taken from the appellant. That sample had been obtained some time after October 2002. This led to the arrest of the appellant and to his being charged with the five counts of armed robbery.The Application for Exclusion of the DNA Evidence Prior to the commencement of the trial, the appellant sought a ruling that the prosecution should not be permitted to lead evidence of the DNA found on the syringe cap. As the destruction of the cap meant that the appellant could not arrange any independent re-testing of the cap, and of any DNA found on it, it was submitted that it would be unfair to allow the prosecution to rely on this evidence. Reliance was placed on the general unfairness discretion discussed by the Full Court in R v Lobban.[2] The trial judge refused the application for exclusion of the evidence. [2] [2000] SASC 48; (2000) 77 SASR 24. The applicant did not lead any oral evidence on the voir dire at which he sought exclusion of the prosecution’s DNA evidence. However, evidence as to the circumstances by which the Forensic Science Centre obtained and analysed the DNA was led at the trial. The appeal was conducted on the basis that regard should be had to that evidence in determining whether the DNA evidence should have been excluded. I will deal with the matter on the same basis.Grounds 9 and 13 Leave to appeal on grounds 9 and 13 was refused by the Chief Justice, but the application was renewed in this Court. By ground 9, the appellant complained that the trial judge had erred in permitting evidence of the DNA found on the syringe cap to be admitted. By the first two paragraphs of ground 13, the appellant complained about directions given by the trial judge with respect to the effect on the defence of the destruction of the syringe cap. It is convenient to consider these grounds together. In R v Lobban, the discretion of a court to exclude evidence which is otherwise relevant and admissible on the ground that its reception would make the trial unfair to the defendant was discussed by the Full Court. The general unfairness discretion was also recently reviewed by a Full Court of five in Police v Hall.[3] A review of the relevant principles is accordingly unnecessary in the present case.[3] [2006] SASC 281. It was submitted that the admission of the DNA evidence on count 3 in this case was unfair in the sense that it rendered the trial unfair.[4] The unfairness lay, it was said, in the appellant having been denied the opportunity to test, by means of an independent re-test, the most important piece of evidence upon which the prosecution relied. In this respect, the unfairness relied upon was similar to that considered in Lobban, Hall, and in R v Clarke[5]. In Lobban, it was the unlawful destruction by the police of a cannabis crop which it was said made the trial unfair because it precluded the accused from carrying out an independent test to confirm that the plants seized were in fact cannabis. In the circumstances of that case, it was held that the destruction of the cannabis did not render the trial unfair. [4] R v Lobban at [89(vii)], 51.[5] [2003] SASC 380; (2003) 87 SASR 203.

Decision

Reasons for decision

ANDERSON J (dissent)

Accordingly, my opinion is that this ground of appeal (assuming leave is granted) has not been made out.Conclusion As already noted, Mr Borick QC accepted that the fate of the appeal would be determined by the court’s decision on these principal grounds. That makes it unnecessary and inappropriate to consider the grounds upon which the appellant was granted leave and, in particular, the other complaints in the grounds of appeal about the directions of the trial judge. I would grant leave to the appellant to appeal the conviction on grounds 6, 9 and 13 but would dismiss the appeal in all respects

Ratio Decidendi

Legal Principle Established

Established by:

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