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 unfairness to the appellant arising from the destruction by the police of an item on which the appellant’s DNA was said to have been found, and a direction by the trial judge as to the sequence in which issues could, or should, be considered by the jury. Mr Borick accepted that if the appellant did not succeed on either of those two points, the remaining grounds would be of no avail to him. In those circumstances, it is appropriate to confine these reasons to a consideration of the principal matters upon which the appellant relied.
The Prosecution Case
The prosecution case was that in the period from 14 July 2002 to 27 August 2002 inclusive, the appellant had committed five armed robberies in Adelaide’s northern suburbs. The first was on 14 July 2002 at the Walkers Arms Hotel at Walkerville; the second on 18 July 2002 at the Adelaide International Hotel at North Adelaide; the third on 25 July 2002 at the CPS Credit Union at Tea Tree Plaza; the fourth on 13 August 2002 at the Savings & Loans Credit Union at Windsor Gardens; and the fifth on 27 August 2002 at the Old Lion Hotel, North Adelaide. On the first three occasions, the offender used a syringe to back up his demands, and on the fourth and fifth occasions, a firearm.
The trial judge rejected a defence application for separate trials on each of the five counts. Although the appellant was granted leave to appeal on the ground that there should have been separate trials, this was one of the grounds which Mr Borick QC acknowledged would not avail the appellant if his principal points failed.
The prosecution case was that the offender responsible for the third offence had left a plastic bag and a syringe cap on the counter of the Credit Union. In October 2002 DNA obtained from the syringe cap was analysed at the Forensic Science Centre and a profile obtained. At that time, the Forensic Science Centre did not have any reference or other sample of the appellant’s DNA with which to compare the DNA obtained from the syringe cap. However, in June 2004 a comparison was made of the DNA with other samples of DNA held in the Forensic Science Centre. This led to a matching of the DNA with that of the appellant. Subsequently, the appellant was arrested, a buccal swab taken from him and the match of the subject DNA with that of the appellant was confirmed.
The prosecution case was that all five offences had been committed by one person. It pointed to a number of what it described as similarities. Security film taken at each set of premises showed the offender to be of stocky build, of approximately the same height and of similar appearance. On each occasion, the offender wore a jacket extending below his waist, dark pants, light coloured sneakers, glasses and either a cap or a beanie. Each robbery was committed in the same geographical area, and within the relatively short time frame of six weeks. The offender’s modus operandi was similar. He approached the victims, who were working alone at a counter, and spoke calmly when making his demand. A syringe was used in relation to the three offences committed in July 2002 but a firearm in relation to the two offences committed in August 2002. The descriptions by the victims of the robber were generally similar. Three victims (the victims of counts 1, 2 and 5) selected from photographic arrays a photograph of the appellant as being the robber, or as possibly being the robber, and three jackets found at the home of the appellant appeared similar to jackets seen on the security videos taken at the time of the offences which were the subject of counts 1, 3 and 4.
Despite this evidence, it is apparent that the single most important item of evidence implicating the accused in at least one of the robberies was the DNA found on the syringe cap left at the time of the third robbery (count 3). The prosecution case was that that evidence enabled the jury to be satisfied that the appellant was the person who had committed that offence. It submitted to the jury that if satisfied that all offences had been committed by the one person, it could use its satisfaction that the accused had committed the third offence to find that he was guilty of each of the five offences.[1]
[1] Sutton v The Queen (1984) 152 CLR 528.
The Destruction of the Syringe Cap
As already noted, the syringe cap left at the site of the robbery on 25 July 2002 was analysed for DNA. The report was available in October 2002, but at that time the police had no suspect, and neither the police nor the Forensic Science Centre had any reference sample from the appellant with which a comparison could be made.
After the testing, the syringe cap was returned to the police for safe-keeping. On 3 June 2004 the cap was destroyed by a police officer as part of a routine clearance of items which, it was thought, had no further use. The purpose of the clearance was to increase storage space. The police officer involved thought that because almost two years had elapsed without any offender being identified, and because the Forensic Science Centre held the DNA sample and records of its analysis, the cap could be destroyed.
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.
In Hall, the question was whether the circumstance that a driver of a vehicle who had returned a positive breath analysis result, and who had gone promptly to a hospital, did not have a blood sample taken in time to preserve the possibility that the sample could be used to challenge the breath analysis reading, warranted the exclusion of the evidence of the breath analysis. The majority, Doyle CJ, Bleby and Vanstone JJ, held that the absence of opportunity to invoke the sole means permitted by statute to defend a prosecution based on the breath analysis result did not render the trial unfair. Doyle CJ said that it “would have far reaching consequences if the inability of the defence to pursue a line of inquiry” which might have assisted the defence did render the trial unfair.
In R v Clarke,[6] the denaturing of a blood sample held by both the prosecution and the defence meant that it could not be used in a conventional way to prove (or to cast doubt upon) the presence of methylamphetamine. However, the denatured sample held by the prosecution was reconstituted so as to enable the approximate quantity of methylamphetamine to be ascertained. In addition, a third sample which had not denatured was available for testing in the conventional way. It was held that the general unfairness discretion did not require the exclusion of the evidence derived from the denatured sample.
[6] [2003] SASC 380; (2003) 87 SASR 203.
Mr Borick QC recognised that there were some similarities between this case and those considered in Hall. Like Hall, and for that matter the circumstances considered in Clarke, this case involves a question of whether the inability, or impaired ability, of an accused person, through no fault of his own, to check the reliability of an important piece of prosecution evidence renders a trial unfair.
The evidence showed that there are four principal stages in the collection of DNA from an item such as a syringe cap and its analysis for forensic purposes. First, the examination of the relevant item, including the obtaining of the DNA from it. Dr Henry, a forensic scientist employed at the Forensic Science Centre, gave evidence of this being done by the use of sterile cotton buds on a stick (one wet and one dry). The second stage is the extraction of the collected DNA from the cotton buds. The third stage involves the profiling of the DNA thus extracted. This stage makes use of recognised computerised software. The final stage is the comparison of the profile obtained against any reference or other sample of DNA.
Dr Henry accepted that a recommendation of the National Research Council of the United States of America represented good practice in the collection and analysis of DNA. That recommendation is as follows:
Wherever feasible, forensic samples should be divided into two or more parts at the earliest practical stage and the unused parts retained to permit additional tests. The used and saved portions should be stored and handled separately. Any additional tests should be performed independently of the first by personnel not involved in the first test and preferably in a different laboratory.
Dr Henry accepted that despite that recommendation being good practice, the DNA extracted from the cotton buds in this case had not been divided into at least two parts with one part being put aside for independent re-testing. She said that it had not been feasible to do so because of the limited amounts of DNA extracted from the cotton buds. Use of the entire sample was necessary in order that a complete DNA profile could be obtained. Dr Henry said, however, that the cotton buds had been retained from which further DNA could be extracted for a re-test. In addition, Dr Henry said that there was some residual DNA which had been extracted from the cotton buds which could be the subject of independent testing.
The Fairness of the Trial
A number of considerations lead me to the conclusion that the admission of the DNA evidence did not render the trial unfair. These include the absence of any other evidence raising a doubt about the reliability of the prosecution DNA evidence; that opportunities for checking substantial portions of the forensic science work and the DNA evidence in this case were still available to the appellant; the absence of suggestion of any bad faith by the police in the destruction of the syringe cap; and the absence of evidence suggesting that the syringe cap, even if retained, would contain residual DNA not collected at the time of its initial examination.
Snr Constable McGowan was the police officer who located and retrieved the syringe cap on 25 July 2002. There was no suggestion in her cross-examination that some form of contamination of the syringe cap with the DNA of the appellant may have occurred in the period between its collection at the Credit Union and its delivery to the Forensic Science Centre. Dr Henry gave evidence of the procedures adopted at the Forensic Science Centre, in accordance with its accreditation by the National Association of Testing Authorities (“NATA”), to ensure the integrity of its testing processes. The forensic scientist who carried out the analysis was not available to give evidence. However, Dr Henry had been able to verify the test results. There was no suggestion that either the original forensic scientist or Dr Henry were not suitably qualified. There was also no suggestion in the cross-examination that the steps required by the Forensic Science Centre’s own protocols (apart from the DNA not having been separated into two samples), and those of NATA, had not been followed in this case. Nor was it suggested that the methodology and equipment used by the Forensic Science Centre were inappropriate. In short, no evidence was adduced by the appellant, nor was it suggested in the cross-examination, that there was some feature about the prosecution DNA evidence in this case which may have made it unreliable. On the contrary, the prosecution evidence of the DNA in this case was of a kind which is commonly given and which is commonly regarded as reliable.
Although Dr Henry gave evidence-in-chief and was cross-examined about the method by which the DNA was obtained by swabbing of the syringe cap, no evidence was adduced indicating a prospect that some DNA may have remained on the cap after that collection. It is possible that all the available DNA had been collected by the swabbing process. Accordingly, it is entirely speculative as to whether, even if the syringe cap had been retained, any further DNA could have been obtained from it.
Finally, the evidence showed that the cotton buds and some residual DNA obtained from the cotton buds, as well as copies of the Forensic Science Centre’s own records, were available to the appellant for retesting if required. It is true that that re-testing would not have been a completely independent re-test in that an independent forensic scientist could not have started with the syringe cap itself, and could, at the most, have commenced the re-test only with the cotton buds used by the Forensic Science Centre. However, the availability of a means of verification (or otherwise) of a substantial portion of the work of the Forensic Science Centre minimised, in my opinion, the prospect of any unfairness to the appellant. Mr Borick QC conceded that a decision had been made by the defence not to seek a re-testing using the materials held by the Forensic Science Centre.
Although at the trial Mr Borick QC had been inclined to criticise the conduct of the police officer who destroyed the syringe cap, on the appeal he accepted that there was no question of any misconduct or bad faith. In other words, it was not suggested that the cap had been destroyed with a view to putting the appellant at some forensic disadvantage. Such conduct, if it existed, may have been more relevant to the public policy discretion, but I think it also appropriate to have regard to it in relation to the general unfairness discretion.
The absence of opportunity by an accused person to check the reliability of a piece of prosecution evidence does not of itself indicate that the trial will be unfair. The circumstances considered in Lobban,[7] Hall[8] and Clarke[9] are examples. Other examples could be given, eg, the loss of a police officer’s original notes, or the death or unavailability of a witness to a conversation between others. Much will depend on the individual circumstances of a given case. Usually, if not always, some additional feature over and above the fact of the destruction or loss of an item of evidence will be required before it can be said that the trial will be unfair in the requisite sense. No such feature exists in this case.
[7] [2000] SASC 48; (2000) 77 SASR 24.
[8] [2006] SASC 281.
[9] [2003] SASC 380; (2003) 87 SASR 203.
Directions with Respect to the DNA Evidence

The appellant also complained of two directions of the trial judge with respect to the DNA evidence. It was submitted first that the judge had “by implication” directed the jury that the inability of the defence to have the syringe cap re-tested independently was of no significance. There is nothing in this complaint. The judge did remind the jury of the destruction of the syringe cap. He also reminded the jury of the submissions of each of the prosecution and of Mr Borick QC with respect to that destruction and its consequences.
The trial judge did direct the jury to have no regard to one particular submission of Mr Borick. That direction was as follows:
Mr Borick also made some submissions to you to the effect that if the press had been in court during the trial, throwing away the syringe cap would have been front page news, and then you would have had a better appreciation of the importance of what has happened. I direct you to have no regard to that submission. You should not speculate about what the position would be as to any of the evidence if something different happened to what in fact happened during the trial and as to the evidence you heard in it. The throwing away of the syringe cap has not been front page news and, had it been, I would have directed you to ignore what you may have read in the paper.
I have compared that summary of Mr Borick QC’s submission to the jury with the submission itself. It is a fair summary. Mr Borick did tell the jury that they would have a better appreciation of the significance of the destruction of the syringe cap if there had been media publicity of the trial on that topic. It is inappropriate for counsel to tell a jury that they could, or might have been able to, ascertain the significance of a submission made in the trial from media reports about the case. It was appropriate for the submission in this case on that topic to be corrected.[10] The direction of the judge to the jury on this topic was entirely appropriate.
[10] Cf R v McCarthy and Ryan (1992) 71 A Crim R 395 per Hunt CJ at CL at 407.
In his submission to the jury, Mr Borick likened the recommendation of the National Research Council of the United States of America, to which reference has already been made, to the statutory safeguard now contained in s 47K(2a) of the Road Traffic Act 1961 (SA). Those provisions were formerly contained in s 47G(2a) and were considered by the Full Court in Police v Hall.[11] The trial judge reminded the jury of this submission but at the same time also reminded them that the recommendation applied in circumstances in which it was “feasible” to divide the sample into two portions. The judge also reminded the jury of Dr Henry’s evidence that it had not been feasible to do so in this case. In my opinion, that direction cannot be construed as containing within it, implicitly, a direction that the inability of the defence to have the syringe cap re-tested independently was of no significance.
[11] [2006] SASC 281.
Next, the appellant complained that the trial judge had directed the jury that the analogy drawn by Mr Borick QC with cases in which an accused person had been unable to obtain a blood sample after breath analysis was of no value. The trial judge did not give a direction to that effect. As already seen, what the judge did was to direct the jury that the recommendation of the National Research Council was not absolute in its terms and to draw the jury’s attention to the evidence of Dr Henry as to why the recommendation had not been followed in this case.
For these reasons, my opinion is that even if leave was granted for grounds 9 and 13, they have not been made out.
The Direction to the Jury as to the Sequence of Issues
Ground 6 of the grounds of appeal complains that the trial judge erred in law by directing the jury to consider first the question of whether the appellant had committed the robbery at the CPS Credit Union at Tea Tree Plaza (at which the syringe cap had been found) (count 3) before considering the question of whether the armed robberies in each of the five counts had been proved to have been committed by the same person.
In his final address to the jury, Mr Borick QC had submitted that those questions should be considered in the reverse order. That is that the issue of whether it had been proved that the same person had committed each of the five offences should be considered before the jury considered whether the appellant had been proved guilty of count 3. While the appellant accepted that each question did have to be considered by the jury, it was contended that it was an error of law for the trial judge to direct the jury as to the sequence in which those questions should be considered.
In the course of his summing up, the trial judge provided to the jury a document headed “Questions to be Asked During the Deliberations by the Jury”. The giving of written directions in the form of questions to be considered by the jury was an appropriate course and well within the discretion of the trial judge.[12] The first three questions in the judge’s memorandum were as follows:
1Are you satisfied, beyond reasonable doubt, that the accused committed the offence of armed robbery particularised in count 3?
In considering this question you must consider only the evidence that relates to that count in isolation from all other evidence. (The evidence that you may consider includes, of course, the evidence given by the accused.)
2If “No” to question 1, then you will find the accused not guilty of count 3.
3If “Yes” to question 1, are you satisfied, beyond reasonable doubt that the armed robberies particularised in each of the five counts were committed by the same person?
In considering this question you may consider the evidence relating to all counts and you may consider all or any similarities and dissimilarities that you may be satisfied exist between the five occasions that are the subject of the five counts.
You cannot answer “Yes” to question 3 unless you are satisfied, beyond reasonable doubt, that the similarities between the occasion which is the subject of the third count and the other four occasions exclude as a reasonable possibility that the five offences were committed by different persons, or at least by more than one person. That is because it is only then that you may use your finding of guilt in relation to count 3 to reason to a finding of guilt in relation to the other four counts.
[12] R v Radford (1986) 133 LSJS 110 at 117 per King CJ; R v Dunn [2006] SASC 58 at [36]; (2006) 94 SASR 177 at 186.
Mr Borick QC’s submission was that question 3 (with suitable adaptation of language) should have been asked before question 1. The submission that the trial judge had directed the jury as to the sequence in which they must consider the questions was based very much on the heading to the document and to a direction which immediately followed:
You must consider each question having regard to my directions to you in my summing up that are relevant to each question and to the evidence relating to each question.
However, this submission overlooked the effect of what the trial judge had said to the jury at the time the document was provided to them. The judge said:
I shall now read from the document because it is part of my summing up to you, and an important part. I suggest that you ask yourselves the following questions during your deliberations, but in doing so, I direct you to consider each question having regard to my directions to you in my summing up that are relevant to each question and to the evidence relating to each question. (Emphasis added)
It can be seen that the judge suggested the use of the questions as a way of shaping the jury’s deliberations. The use of the word “suggest” in relation to the questions to be asked is in contra distinction to the word “direct” in relation to the matters to be considered in relation to each question. Although the written direction may well have influenced the jury to a particular approach, I am satisfied that the jury was not directed that it was mandatory to adopt any particular approach.
It is not easy, in any event, to ascertain the difference in effect between a consideration of question 1 before question 3 or vice versa. In whatever order the questions were considered, the guilt of the appellant on count 3 had to be considered by reference to the evidence about the commission of that robbery, and only by reference to that evidence. Further, whatever order was adopted, the question of whether all offences were committed by one person was to be considered by reference to the evidence relating to all counts, and in particular by reference to the similarities and dissimilarities between the circumstances of those offences which were proved by the evidence. The DNA evidence relating to count 3 was not, and could not have been, one of those items of similarity relied upon by the prosecution. It is not reasonable to suppose that the jury could have been under any misapprehension about that. Further, the jury was told expressly that it was only if it was satisfied that all offences had been committed by the one person that it could make use of its finding of guilt on count 3 to find the appellant guilty of the other counts.
Mr Borick QC submitted that the sequence in which the jury considered the questions was important. Satisfaction by the jury of the appellant’s guilt on count 3 would have coloured, he submitted, their consideration of whether the one person had committed all offences. Mr Borick did not, however, point to any factor suggesting why that should be so. In my opinion, there is no basis to the submission. It overlooks the fact that the jury was expressly told that it could not use any finding of guilt on count 3 in any way at all in its consideration of whether the five offences were committed by the one person. It is appropriate to suppose that the jury did comply with the direction of the judge, both written and oral, on that topic.[13]
[13] R v Baltensperger [2006] SASC 246 at [40] per Bleby J.
The sequence in which the trial judge suggested that the jury consider the issues is a sequence which has been adopted in other cases. For example, in R v England[14] the trial judge had directed a jury using the same sequence:
“If you were to be satisfied that the accused was the person who committed the offences on that occasion, then you must ask yourselves whether you are also satisfied that the manner and circumstances of the commission of the offences on any of the other four occasions were so strikingly similar to the manner and circumstances of the commission of the offences on that occasion that you are prepared to infer that offences on both the first occasion and on one or more of the other four occasions were committed by the same person, namely, the accused.
[14] [2002] SASC 108 at [24]; (2002) 219 LSJS 262 at 268.
Although on appeal the directions of the judge in England were critiqued in other respects, there was no suggestion that the sequence which he had suggested to the jury was inappropriate. This sequence was also implicit in the direction of the trial judge approved by Brennan J in Sutton v The Queen.[15]
[15] (1984) 152 CLR 528 at 544.
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