R v DG

Case [2010] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL

SAPCR 0176 of 2010

THE QUEEN

Applicant

v

DG

Respondent

SAPCR 0177 of 2010

DG

Applicant

v

THE QUEEN

Respondent

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JUDGES:

BUCHANAN, WEINBERG and BONGIORNO JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

30 June 2010

DATE OF JUDGMENT:

7 July 2010

MEDIUM NEUTRAL CITATION:

[2010] VSCA 173

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CRIMINAL LAW – Applications for leave to appeal against two interlocutory decisions – Two evidentiary rulings concerning admissibility of certain DNA evidence in murder trial – Consideration of s 297 of Criminal Procedure Act 2009 (Vic) – Whether leave to appeal should be given – Merits of appeal relevant to giving of leave – Onus of proof in exercise of judicial discretions under Evidence Act 2008 (Vic) – Applications for leave refused.

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Appearances: Counsel Solicitors
For the Applicant Mr P.A. Chadwick with
Ms S. McCrickard 		Victoria Legal Aid
For the Crown Mr G. Horgan SC Mr C. Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
WEINBERG JA
BONGIORNO JA:

  1. On 30 June 2010, the Court heard, and refused, two applications for leave to appeal against interlocutory decisions made by a judge of the Trial Division.  Those decisions, which were in fact evidentiary rulings, concerned the admissibility in a trial for murder of certain DNA evidence.  

  1. The background facts were as follows.  A small quantity of DNA was detected on a man’s thong which was found close by the body of the female victim.  The body was discovered some 500 metres or so from the accused’s home.  The Crown case was that the DNA was that of the accused.  The defence objected to the admissibility of that evidence.  After a lengthy voir dire the trial judge ruled in favour of the Crown. 

  1. The body of the deceased was found wrapped in black plastic.  A second small quantity of DNA was detected on a nylon rope that had been used to tie up the body.  Once again, the Crown case was that the DNA was that of the accused.  In relation to this matter, however, his Honour ruled that the evidence should not be led.

  1. The Crown case was largely circumstantial.  The DNA evidence, if accepted, linked the accused to the body of the deceased.  As such, it established a connection between the accused and the disposal of the body, and thereby strengthened the circumstantial case.

  1. Both the accused, and the Crown, were dissatisfied with his Honour’s rulings.  The defence sought to challenge the decision to admit the evidence of the DNA found on the thong, while the Crown sought to challenge the decision to exclude the evidence of the DNA detected on the nylon rope.  Each side opposed the other’s application for leave.

  1. We indicated, at the conclusion of the hearing, that we would publish our reasons for refusing leave to appeal, in both matters, at a later time.  Those reasons are as follows.

  1. Plainly, each ruling constituted an ‘interlocutory decision’ concerning the admissibility of evidence. The trial judge certified, pursuant to s 295(3) of…

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R v DG [2010] VSCA 173
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[2010] VSCA 173
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CaseChat Overview and Summary

In the matter of R v DG, the case was heard by the Court of Appeal in Victoria. The respondent, DG, sought leave to appeal against two interlocutory decisions made by the trial judge in relation to the admissibility of certain DNA evidence in a murder trial. The trial judge had ruled that the DNA evidence was inadmissible under the provisions of the Evidence Act 2008 (Vic). DG's application for leave to appeal was based on the argument that the trial judge had misapplied the law in making the evidentiary rulings.

The primary legal issue before the Court of Appeal was whether the applications for leave should be granted. The Court considered the provisions of s 297 of the Criminal Procedure Act 2009 (Vic) and the relevant principles of law concerning the exercise of discretion under the Evidence Act 2008 (Vic). The Court held that the onus was on the applicant to demonstrate that the trial judge had made a significant error of law, and that the appeal had a reasonable prospect of success. After considering the arguments presented by DG, the Court found that the onus had not been discharged and that the applications for leave should be refused.

The Court of Appeal held that the trial judge had not erred in excluding the DNA evidence, and that the appeal did not have a reasonable prospect of success. The Court found that the trial judge had properly applied the principles of the Evidence Act 2008 (Vic) and that the DNA evidence was not admissible on the basis that it had not been properly authenticated. Accordingly, the Court refused the applications for leave to appeal.

The Court of Appeal dismissed the applications for leave to appeal against the two interlocutory decisions of the trial judge. The Court found that the trial judge had properly exercised his discretion under the Evidence Act 2008 (Vic) and that the DNA evidence was not admissible. The Court held that the onus was on DG to demonstrate that the trial judge had made a significant error of law, and that the appeal had a reasonable prospect of success. However, the Court found that DG had not discharged this onus, and that the applications for leave should be refused.

Orders

Orders of the court

Applications for leave refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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