R v Dean

Case [2006] SADC 54 25 May 2006

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DEAN
Ruling of Her Honour Judge Shaw
25 May 2006
CRIMINAL LAW
Criminal Law (Forensic Procedures) Act 1998, referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Owen v South Australia (1996) 66 SASR 251; Gerah Imports P/L v Duke Group Ltd (In Liq) (2004) 88 SASR 419; Ousley v The Queen (1997) 192 CLR 69; Orban v Bayliss [2004] NSWSC 428; Stefanopoulos v The Police (2000) 79 SASR 91; George v Rockett (1990) 170 CLR 104; Coco v The Queen (1994) 179 CLR 427; McNamara Business Law v Kasmeridis (2005) 92 SASR 382; Uebergang and Others v Australian Wheat Board (1980) 32 ALR 1; Maddalozzo & Ors v Maddick (1992) 108 FLR 159; The State of Western Australia v Rothmans of Pall Mall [2001] WASCA 25; Al Kateb v Godwin (2004) 219 CLR 562; Williams v The Queen (1986) 161 CLR 278; Dallison v Caffery [1965] 1 QB 348; cf A-G's Reference (No. 3 of 1999) (2001) 2AC91; R v Rowe (2004) SASC 427; Question of Law Reserved (No. 1 of 1998) 1998 70 SASR 281; R v Clarke (2003) 87 SASR 203; Robin v The Police (2002) 81 SASR 253; R Haydon (No 4) [2005] SASC 18; Police v Mercorella (2003) 87 SASR 218; Lobban v The Queen (2000) 77 SASR 24; R v Sarlija [2005] ACTSC 120; Royall v The Queen (1990) 172 CLR 378; Coley v Nominal Defendant [2003] QCA 181; Hillcoat v Northern Territory of Australia and Concepcion [2001] NTSC 114; R v White [2005] NSWSC 60; Richards v Schutt (1978) 18 SASR 421; R v Monks (2001) 122 A Crim R 324, considered.

R v DEAN
[2006] SADC 54

The accused is charged with the offence of aggravated robbery allegedly committed at a Bi-Lo supermarket on 15 March 2004.
The accused applied for exclusion of the evidence of his DNA profile obtained from a forensic procedure carried out on the 26 July 2004 upon his arrest for this offence.
The arrest was made upon the basis of a report of a match between the accused’s DNA profile on the DNA database and the DNA profile obtained from forensic material allegedly located at the crime scene.
The DNA profile of the accused was placed on the database as a result of his arrest on the 28 December 2003 for charges of assault family member.
On the 22 April 2004, the charges of assault family member were discontinued. Section 44C of the Criminal Law (Forensic Procedures) Act 1998 (“the Act”) directs the Commissioner of Police to destroy forensic material including the results of any analysis, as soon as practicable after the discontinuance of a charge. The accused’s forensic material was not destroyed and his DNA profile was not removed from the database 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 Dean

Details

AGLC: R v Dean [2006] SADC 54
Case: [2006] SADC 54
Decision Date: 25 May 2006

CaseChat Overview and Summary

The case of R v Dean concerns the admissibility of DNA evidence obtained following an arrest based on a DNA match report. The accused, Dean, had been arrested for aggravated robbery based on a match report between his DNA profile and forensic material from a crime scene. Dean's DNA profile was initially obtained from a buccal swab taken during a previous arrest for assault family member charges, which were later dismissed. The defence argued that the arrest and subsequent forensic procedure were unlawful because the police failed to comply with the mandatory destruction requirements under the Criminal Law (Forensic Procedures) Act 1998, which required the destruction of Dean's forensic material and DNA profile after the dismissal of the charges. The court ruled that the evidence was inadmissible based on the police's non-compliance with the Act.

The primary legal issue was whether the evidence obtained from Dean's arrest and the subsequent forensic procedure should be excluded due to the police's failure to comply with the mandatory destruction requirements of the Act. The court found that the police had deliberately and knowingly disregarded their statutory obligations, leading to an unlawful arrest. The provisions of the Act required the destruction of forensic material and DNA profiles as soon as practicable after the discontinuance of charges, but this did not occur in Dean's case. The court held that the non-compliance by the police, particularly the DNA Management Section (DNAMS) and Senior Constable Rae, resulted in the accused being unlawfully arrested and subjected to a compulsory forensic procedure. The court exercised its discretion to exclude the evidence on public policy grounds, finding that the non-compliance by law enforcement officers with their statutory duties enabled the prosecution to obtain the evidence. The court concluded that admitting the evidence would involve condoning the illegality and would not be compatible with the functions of the court and the need to maintain the integrity of the judicial process. The evidence obtained from the forensic procedure at the time of Dean's arrest for the current offence was deemed inadmissible under the Act.

Orders