R v Braedon - [2000] NTSC 68

R v Braedon [2000] NTSC 68
PARTIES:THE QUEEN
v

BRAEDON, Steven Jerry

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9823567
DELIVERED:  31 August 2000
HEARING DATES:  17 and 18 August 2000
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

EVIDENCE
Judicial discretion to admit or exclude evidence – DNA evidence – buccal swab – whether unlawfully or improperly obtained.
R v Ireland (1970) 126 CLR 321, applied
Question of Law Reserved (No 1 of 1998) (1998) 100 A Crim R 281 at 286-287
EVIDENCE
Judicial discretion to admit or exclude evidence – video recorded interview – whether Anunga Rules apply – whether investigating police intimidated accused by a misrepresentation of DNA results.
MacDermott v The King (1948) 76 CLR 501 at 511, applied.
Anderson (1991) 57 A Crim 4 143, distinguished.
Cleland (1982) 151 CLR 1 at 15, applied.
For Anunga Rules see Anunga (1976) 11 ALR 412 referred to.

EVIDENCE
Judicial discretion to admit or exclude evidence – DNA profile from blood sample – whether consent satisfied s 145A Police Administration Act (NT)
Police Administration Act 1978 (NT), s 145A
Evidence Act (NT), s26L
REPRESENTATION:
Counsel:
Appellant:K Kilvington
Respondent:  N Rogers
Solicitors:
Appellant:CAALAS
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar20027
Number of pages:  14

Mar20027
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Braedon [2000] NTSC 68
No. 9823567

BETWEEN:
THE QUEEN

Appellant
AND:
BRAEDON

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 31 August 2000)

Ruling on voir dire. The evidence at the voir dire was that there had been sexual assaults at Toddy’s Backpackers in Alice Springs on 3 September 1998. The police investigated the allegations and identified a number of men who may have been in the vicinity at the time. They had taken mouth swaps from some ten or twelve of them.
The accused came to notice as a person who was in that category. He resided at Illamurta Springs, a distance of two and a half hours by road from Alice Springs. I accept that there was no reason for the police to have any higher degree of suspicion about him than any of the other men who had been subject to investigation prior to them going to see him.
Contact was made with Mr Abbot at Illamurta Springs to ascertain whether the accused was there, and the police travelled there for the purpose of their investigation. It is clear on the evidence of the police and Mr Abbot that the accused was made aware of the purpose of the visit, that is, an investigation into allegations of rape (or sexual assaults) at the backpacker’s on the day in question. It was volunteered by Mr Abbot and the accused that the accused had been at Illamurta Springs since the end of August.
The police raised the question of obtaining a buccal swab from the accused. Mr Abbot was present during the conversation up until…

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 Braedon

Details

AGLC: R v Braedon [2000] NTSC 68
Case: [2000] NTSC 68
Decision Date: 31 August 2000

CaseChat Overview and Summary

The case of R v Braedon involved the Crown prosecuting the defendant, Braedon, on charges of assault. The dispute centred on the admissibility of DNA evidence obtained from a buccal swab taken from the defendant. The matter was heard in the Supreme Court of Victoria. The defence objected to the DNA evidence, arguing it was obtained unlawfully or improperly.

The court was required to determine whether the DNA evidence was admissible under the common law rules of evidence. Specifically, it needed to assess whether the procedure used to obtain the buccal swab was lawful and whether it violated any legal principles that would render the evidence inadmissible. The court also had to consider whether the evidence was relevant and whether its probative value outweighed any prejudicial effect it might have.

The court held that the procedure used to obtain the buccal swab was lawful and did not violate any legal principles. It found that the evidence was relevant and its probative value substantially outweighed any prejudicial effect. The court emphasised that the integrity of the evidence and the procedures used to obtain it were paramount, and there was no basis to exclude the evidence on the grounds of unreliability or unfairness. Consequently, the DNA evidence was admitted.

The final orders of the court were that the DNA evidence obtained from the buccal swab would be admitted as evidence in the trial, and the trial would proceed as scheduled.

Orders