R v Drummond

Case [2013] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application for Permission from the Full Court for a Second or Subsequent Appeal Against Conviction)

R v DRUMMOND

[2013] SASCFC 135

Reasons for Decision of The Honourable Justice Stanley

12 December 2013

CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES

Application for permission from the Full Court for a second appeal against conviction.

The applicant was charged with the offence of attempted kidnapping contrary to sections 39(1) and 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). He was convicted by jury verdict following a trial in the District Court. The applicant appealed against conviction to the Court of Criminal Appeal. The appeal was dismissed. The applicant was then refused special leave to appeal to the High Court.

The applicant now seeks permission for a second appeal against conviction on the ground that there exists fresh and compelling evidence that should, in the interests of justice, be considered on appeal pursuant to section 353A of the CLCA.

Whether it is reasonably arguable that the evidence is fresh.  Whether it is reasonably arguable that the evidence is compelling.  Whether it is reasonably arguable that it is in the interests of justice to consider the evidence on appeal.  Whether it is reasonably arguable that in the circumstances there was a substantial miscarriage of justice.

Held (refusing permission to appeal):

1.  The onus is on the appellant to satisfy the appeal court that fresh and compelling evidence exists, that it is in the interests of justice that it should be received and that in light of the evidence a substantial miscarriage of justice occurred (at [12] - [25]).

2.  It is the practice of the Full Court, in cases where an appeal does not lie as of right, to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable (at [26] - [27]).

3.  The applicant has given no convincing explanation as to why the evidence now presented could not have been adduced at trial.  It is not reasonably arguable that the evidence is fresh evidence (at [30] - [33]).

4.  The evidence is not highly probative in the context of the issue of identification.  It is not reasonably arguable that the evidence is compelling (at [35] - [41]).

5.  It is not reasonably arguable that it is in the interests of justice that the evidence be considered on appeal (at [42]).

6.  It is not reasonably arguable that there was a substantial miscarriage of justice (at [43]).

Criminal Law Consolidation Act 1935 (SA) s 39, s 270A, s 352, s 353, s 353A; Supreme Court Act 1935 (SA) s 48; Statutues Amendment (Appeals) Act 2013 (SA) s 7; Crimes Act 1958 (VIC) s 568; Criminal Procedure Act 2009

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AGLC
R v Drummond [2013] SASCFC 135
Case
[2013] SASCFC 135
Decision Date

CaseChat Overview and Summary

This matter concerned an application for permission to appeal by the applicant, Mr Drummond, against his conviction. The application was brought under s 353A of the Criminal Law Consolidation Act (CLCA), which allows a convicted person to appeal if there exists fresh and compelling evidence that should, in the interests of justice, be considered on appeal. The Full Court, exercising the power to grant permission to appeal, considered whether the evidence presented by the applicant met the criteria for fresh and compelling evidence.

The central legal issue before the court was whether the evidence sought to be introduced by the applicant was "fresh and compelling" within the meaning of s 353A of the CLCA. This required the court to determine if the evidence was new, if it was reasonably arguable that it was compelling, and if it was highly probative in the context of the issues in dispute at trial, specifically the issue of identification. The applicant sought to rely on new expert opinions from Dr Rothwell and Dr Harding, which challenged the interpretation of DNA evidence presented at trial by a forensic scientist, Ms Mitchell.

The court reasoned that the evidence of Dr Rothwell and Dr Harding was not reasonably arguable as "fresh" because the opinions expressed in their affidavits were largely inadmissible. The court found that whether evidence was confusing or misleading was a question of fact for the jury, not a matter for expert opinion. Furthermore, the court noted that the experts did not contest Ms Mitchell's ultimate opinion that the absence of DNA material did not necessarily exclude contact between the applicant and the complainant. Crucially, the court found that the evidence was not "compelling" because it was not highly probative in the context of the identification issue at trial. The court concluded that the new evidence did not meet the threshold required by s 353A.

Permission to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

The applicant now seeks permission to appeal on the ground that there exists fresh and compelling evidence that should, in the interests of justice, be considered on appeal pursuant to s 353A of the CLCA. By s 353A(2) of the CLCA a convicted person may only appeal in such cases with the permission of the Full Court.[1] [1] Pursuant to s 48(3) of the Supreme Court Act 1935 (SA) the power to grant permission to appeal may be exercised by a single judge of the Supreme Court. Facts On 24 November 2010, the complainant, T, was walking on the footpath of Prospect Road. She was then a secondary school student. A slow moving white station wagon drove towards her. She became worried and entered the vehicle’s registration number in her mobile telephone. A male alighted from the vehicle and grabbed her arm and repeatedly told her to get into the car. T was able to break free by pushing the man away and hitting him around the collar bone area. Further along Prospect Road, the white station wagon again pulled up alongside her. T eventually turned into the street in which she lived and did not see the man again. There was no dispute at trial that the registration number recorded by T was the registration number of the applicant’s white station wagon. T had also described her attacker as having brown wavy collar length hair and brown eyes. She described him as having a medium build. It was accepted that the general description given by her fitted the applicant. A forensic scientist, Ms Natasha Pamela Toop Mitchell, gave evidence of the attempts to discover traces of DNA on the clothing of both T and the applicant. No trace of the applicant’s DNA was found on T’s clothing, nor was any trace of T’s DNA found on the applicant’s clothing. Ms Mitchell’s opinion was that the fact that no useable DNA material was located did not necessarily mean that there was no contact between the applicant and T, although that was a possibility. She explained why DNA material might not be found on an object even where a person has come in contact with the surface of that object. This included reference to studies that have shown that only about 10 per cent of samples actually provide any useful information that could be uploaded to the DNA database. The trial judge directed the jury on Ms Mitchell’s evidence in the following terms:The evidence of Ms Mitchell, whose qualifications in the area of recovery and analysis of DNA material was not challenged, told you that the clothing of both Ms [T] and the accused Mr Drummond was tested for contact DNA material and that no samples were found. She also told you that it is not unusual for there to be an absence of DNA material where the testing is for contact DNA. Bear in mind her evidence about the study that had been undertaken, within her laboratory at least, and, although it might be difficult to ascertain from that what proportion of the sample contained contact DNA, because she said that they only uploaded material or evidence relating to material of certain quality, she said that they were only able to do that in about 10% of cases.You will bear in mind in assessing this issue of the absence of contact DNA material the evidence of Ms [T] that she was wearing a singlet top and the man who grabbed her grabbed her on her upper arms. You will also bear in mind however that there was no DNA material recovered from the T-shirt that it is an agreed fact the accused was wearing when he was in the vicinity of Prospect Road. In deciding whether you accept or reject Ms Mitchell’s evidence you look to the qualifications and expertise of the witness and, as I said, that is not really challenged; the manner in which she gave her evidence; your understanding of the evidence; the circumstances which formed the basis of her opinion and all the material evidence in the case.The evidence of experts is ultimately like any other evidence, that is you must assess it, analyse and decide whether you accept it and, in doing so, apply your common sense.The Appeal

Evidence

Evidence Before The Court

On the construction I have attributed to s 353A of the CLCA, the finding that it is not reasonably arguable that the evidence is fresh is sufficient to refuse permission to appeal. However, for completeness, I turn to consider the other criteria.Requirement that the evidence be compelling The next issue is whether it is reasonably arguable that the evidence is compelling. In my view, it is not reasonably arguable that the evidence of Dr Rothwell and Dr Harding is compelling within the meaning of s 353A. First, the opinions expressed in the affidavits of Dr Rothwell and Dr Harding that Ms Mitchell’s evidence was confusing and misleading, are inadmissible. Whether something is confusing or misleading is a question of fact. The expertise of Dr Rothwell and Dr Harding does not extend to proffering opinions as to whether a jury would be misled or confused by Ms Mitchell’s evidence. Secondly, Ms Mitchell’s reference in her evidence to the studies was only provided to support her ultimate opinion that the absence of one person’s DNA material on another person does not mean that they have not had physical contact. She said in evidence that there are many reasons why DNA might not be located on a piece of clothing touched by another person. She was asked in examination-in-chief to explain why a person’s DNA might not be located on a surface even though he or she has come into contact with it. She explained that the reasons for this include whether a person is a good or bad “shedder” of cellular material, the type of surface being tested and the nature of contact a person has with the surface. Her evidence that studies disclosed that only about 10 per cent of samples yielded a useable DNA profile merely was proffered in support of her ultimate opinion. There was no challenge in cross-examination to that ultimate opinion that the lack of DNA material in this case did not exclude the possibility that T had come into contact with the applicant. Moreover, neither of the experts relied upon for the purposes of this application contest the proposition. On the contrary, Dr Rothwell is of the opinion that the “negative” DNA results do not positively exclude the presence of the applicant’s DNA on T or of T’s DNA on the applicant, although this could be one explanation. Importantly, he agrees with Ms Mitchell that the negative DNA result does not necessarily mean that there was no contact between the applicant and T. Thirdly, it is appropriate to consider Ms Mitchell’s evidence in the context of the issues at trial. Section 353A(6)(b)(iii) provides that evidence is compelling if it is highly probative in the context of the issues in dispute at trial. The issue to which Ms Mitchell’s evidence is relevant was whether the absence of DNA material undermined the prosecution case that it was the applicant who attempted to abduct T. That is to say, the issue was one of identification. The case against the applicant relied upon the evidence of the complainant and circumstantial evidence.

Decision

Reasons for decision

Subsequent to the hearing of the application for permission, the applicant filed a further written submission annexing an excerpt from a summing up by Judge Davison in the trial of R v Mameledzija and Mameledzija[21] and a further opinion of Dr Harding. I have considered these further submissions and the annexures. The submissions address two topics. First, the directions given to the jury at the applicant’s trial. Secondly, authorities relevant to the meaning of the expression “substantial miscarriage of justice” in s 353A of the CLCA. The submissions in relation to the trial judge’s summing up do not assist in deciding whether to grant permission to appeal. First, because the application for permission to appeal does not raise any error in the trial judge’s directions to the jury. Secondly, because the submission goes nowhere unless I consider it reasonably arguable that the evidence of Dr Harding and Dr Rothwell is fresh within the meaning of s 353A. For the reasons set out above, I have concluded that it is not. In relation to the second topic, I have addressed the question of construction of “substantial miscarriage of justice” earlier in these reasons. [21] District Court Summing Up given 4 October 2013.Conclusion I refuse permission to appeal.

Ratio Decidendi

Legal Principle Established

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