R v Dionnet

[2007] NSWDC 94

CITATION:	R v DIONNET [2007] NSWDC 94
HEARING DATE(S):	26/04/2007 - 07/05/2007
JUDGMENT DATE:	2 May 2007
EX TEMPORE JUDGMENT DATE:	2 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Evidence admitted
CATCHWORDS:	Criminal Law - Judgment on admissibility of DNA evidence - Failure of police to provide sample taken from the buccal swab
LEGISLATION CITED:	Crimes (Forensic Procedures) Act
CASES CITED:	R v Jason Michael Kane [2004] NSWCCA 78
PARTIES:	Crown Pascal Lucien Francois Dionnet
FILE NUMBER(S):	06/11/0323
COUNSEL:	A. Seeto (Crown) B.J. Murphy (Defendant)
SOLICITORS:	NSW DPP B.J. Murphy Angelovski & Associates

JUDGMENT

1 HIS HONOUR: In this case material relating to some DNA analysis was admitted very early in the trial. It was made clear that this was always subject to objection. The reason it was admitted before the objection could be determined was to accommodate the need for the defence to call evidence from a Dr McDonald, which related to the DNA evidence. He was only available at the very beginning of the trial and so the question of the admissibility of the DNA evidence was postponed. It has just been argued.

2 It was always accepted by the crown that in the event that I ruled against the crown on the issue this jury would have to be discharged. Nevertheless, the crown took the risk in order to ensure that the trial could commence.

3 It is agreed that there has been a failure by the police to comply with s 58 of the Crimes (Forensic Procedures) Act. Initially objection was taken because that had not been complied with in relation to a number of samples, firstly, the buccal swab taken from the accused; secondly, samples analysed from a singlet worn by the complainant and thirdly, samples analysed from a bed sheet. However, when Mr Murphy’s attention was drawn to both s 58 and a recent decision of the Court of Criminal Appeal of Regina V Jason Michael Kane [2004] NSWCCA 78 the objection was narrowed so that it related only to the failure of police to provide a sample taken from the buccal swab.

4 It is agreed that the police officer did not comply with s 58 in that he or she placed both buccal swabs into the one envelope which was then sent for analysis. What should have happened, of course, is that one swab was sent for analysis and the other swab made available to the accused, s 101 of the Crimes (Forensic Procedures) Act providing ways in which the swab could have been made available to him. It is agreed that the failure of the police officer to do what s 58 required was inadvertent.

5 Attention then turned to s 82 of the Crimes (Forensic Procedures) Act in particular subs (4) and (5). The relevant provision of subs (4) is subs (4)(b). What I have to do is determine whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence and in performing that exercise I may consider those matters in subs (5).

6 Before dealing with each of the matters in subs (5) individually I should note this, which I consider is highly important. Indeed, its importance was conceded by Mr Murphy this morning. This is not a case where police have done something which prevents the accused ever analysing what it is that the police have analysed.

7 In other words this is not a case where police have taken a sample of blood from a crime scene, analysed it for DNA and by their failure to comply with s 58 prevented the offender from performing further analysis on the same material.

8 To the contrary, this is a case where what the police have analysed, namely the DNA of the accused, remains available to him. It is stating the obvious, but it is important to emphasise that the accused has within him his DNA and it would be a simple matter for him to provide to his own analyst a buccal swab or some other cells containing his DNA. So it is highly important to note that the offender can check the accuracy of the DNA analysis done on his buccal swab taken by police at any stage.

9 The evidence which was admitted is highly probative. The case against the accused is that he was correctly identified by the complainant when she recognised him in her room, firstly by the light shining through a gap in the curtains and secondly, when she used the light from her mobile phone to shine upon the man who had just sexually assaulted her.

10 The DNA evidence is according to the crown, confirmatory of that act of identification. No matter which probability or calculation one refers, to the evidence establishes that the DNA evidence is capable of advancing the crown case to a significant degree. This is especially so when the cross-examination of the DNA experts, Mr Goetz and the evidence-in-chief of Dr McDonald suggested no reasonable way in which the accused’s DNA could find its way onto the singlet worn by the complainant unless it was in the manner the complainant described.

11 I note that the reasons given for failing to comply with s 58 were that the police acted inadvertently. It is not suggested that the police have deliberately set out to damage the ability of the accused to defend himself. When I turn to the gravity of the failure I have in mind the issue with which I commenced this part of my judgment. That is, that the offender has within him his own DNA which can be re-analysed if he desires.

12 I am satisfied, because it is agreed, that the failure to comply with the provisions of the Act was reckless rather than intentional. I have already set out the nature of the provision which was not complied with, the nature of the evidence, and as is clear the subject matter of the proceedings is a criminal prosecution for a serious sexual assault. I bear in mind the importance of the man who sexually assaulted the complainant being correctly identified and I bear in mind also that the consequences for the offender upon any conviction would be grave indeed.

13 I do not consider that admitting the evidence would seriously undermine the protection given to suspects by this Act. Again, I have regard to the fact that the offender has within him his own DNA for re-analysis if he desires. No-one has referred me to any provision in the international covenant on civil and political rights. I cannot imagine that there is going to be any other proceeding relating to the breach of s 58. The evidence could easily have been obtained without contravening s 58.

14 Having considered all of those matters, of course in particular the nature of the consequences to the accused of the breach, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

15 Indeed, it is difficult to think of a breach of s 58 which has less impact on the ability of the accused to defend himself than the breach the subject of the present objection. The result is that I propose not to exclude the evidence which has already been heard by the jury.

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