R v Chandler

[2014] NSWDC 148

District Court

New South Wales

Medium Neutral Citation:	R v Chandler [2014] NSWDC 148
Hearing dates:	18, 19/08/2014
Decision date:	26 August 2014
Before:	S Norrish QC
Decision:	Evidence is admissible
Catchwords:	CRIMINAL - interlocutory application, opinion evidence, s79 Evidence Act, DNA, assumptions for opinions, "Powerplex 21"
Legislation Cited:	Evidence Act 1995
Cases Cited:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Sing (2002) 54 NSWLR 31 Keller v R [2006] NSWCCA 204 Sharwood v R [2006] NSWCCA 157
Category:	Interlocutory applications
Parties:	Director of Public Prosecutions Benjamin Chandler - Offender
Representation:	Ms S Herbert - Crown Dr J Berwick - Offender Director of Public Prosecutions John R De Mattia & Company - Offender
File Number(s):	2012/289299

Judgment - Admissibility of opinion evidence of Ms Beilby, Forensic Biologist, in s 177 Evidence Act Certificate, dated 5 March 2014

1. Objection has been taken to aspects of the proposed opinion evidence concerning aspects of 'DNA' investigations in this matter. Last Thursday 14 August 2014 the Court was advised by the parties of the need for a voir dire examination to determine the admissibility of evidence relating to the testing of a knife found after the robbery of the victim in this matter to ascertain the presence of DNA material which might be consistent with the DNA profile of the accused and/or the victim. I gave a ruling on the objection at the conclusion of the voir dire examination on Tuesday 19 August 2014.

1. The knife was found at the rear of a block of premises a few streets away from the scene of the robbery apparently embedded in a mattress. Nearby were found items that had been removed from the wallet of the victim which were, as I understand it, clearly his property.

1. Objection was made to the admissibility into evidence of an opinion, or opinions, expressed by Vivienne Beilby, a Senior Forensic Biologist with the NSW Forensic and Analytical Science Service, that a partial DNA profile recovered from the stained area on the right side of the blade of the knife was the same profile as the victim, and that this profile is expected to occur in fewer than one in one hundred billion individuals in the Australian population. This conclusion was reached by the use of the 'Promega Powerplex 21'kit, or system, for developing DNA profiles, introduced nationally in early 2013 to replace the "less sensitive" 'Profiler Plus' kit or system. I also understood that the objection related to the chain of possession of the knife from the time it was found by the police to the time it was delivered to the "DNA laboratory" of the NSW Forensic and Analytical Science Service ('FASS'), the chain of possession and testing of the knife, the manner of obtaining results from that testing and as to the factual assumptions upon which the opinion expressed by Ms Beilby in her report of 5 March 2014 was based.

1. The opinion expressed by Ms Beilby was based upon testing that occurred…