R v McNeill (Ruling No 2) - [2007] NFSC 3

SUPREME COURT OF NORFOLK ISLAND
R v McNeill (Ruling No 2) [2007] NFSC 3
EVIDENCE — objection taken to mitochondrial DNA evidence — whether Court should exercise discretion pursuant to Evidence Act 2004 (NI) s 135(a) or (b) — whether evidence would be “unfairly prejudicial” — whether evidence would be “misleading or confusing” — evidence excluded in exercise of discretion
Evidence Act 1995 (Cth) s 135
Evidence Act 1995 (NSW) ss 135, 137
Evidence Act 2004 (NI) ss 55(1), 56(2), 135, 135(a), 135(b), 137
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 cited
Hughes Aircraft Systems International v Airservices Australia (1997) 80 FCR 276 referred to
R v BD (1997) 94 A Crim R 131 cited
R v Lisoff [1999] NSWCCA 364 discussed
R v McNeill (Ruling No 1) [2007] NFSC 2 referred to
R v Singh-Bal (1997) 92 A Crim R 397 referred to
Re GHI (a Protected Person) [2005] NSWSC 466 referred to
Reading v Australian Broadcasting Corporation [2003] NSWSC 716 referred to
THE QUEEN v GLENN PETER CHARLES MCNEILL
SCC1 OF 2006
WEINBERG CJ
16 FEBRUARY 2007
NORFOLK ISLAND

IN THE SUPREME COURT OF NORFOLK ISLAND

CRIMINAL JURISDICTION

SCC1 OF 2006

BETWEEN:

THE QUEEN

AND:

GLENN PETER CHARLES MCNEILL

JUDGE::

WEINBERG CJ

DATE:

16 FEBRUARY 2007

PLACE:

NORFOLK ISLAND

REASONS FOR EXCLUDING THE EVIDENCE OF DR TERRY MELTON RE MITOCHONDRIAL DNA

Before the Crown case was opened, Mr Garling SC, on behalf of the accused, indicated that he would object to any evidence being led from Dr Terry Melton, a proposed Crown witness. After a short voir dire and submissions from the parties, I ruled that this evidence should be excluded in the exercise of my discretion. I said that I would publish my reasons at a later stage. These are those reasons.
The background to this ruling can be stated briefly. In 2005, after the police had located the Honda Civic that had formerly belonged to the accused, they found several human hairs in the boot of that car. In order to determine whether they could be linked in any way to Janelle Patton, some of those hairs were selected to be sent to the United States for mitochondrial DNA testing. Dr Melton, an acknowledged expert in that field, prepared two reports regarding her findings, the first dated 12 January 2006 and the second dated 21 March 2006. The Crown proposed to call Dr Melton to give evidence in accordance with those reports with the aim of having the jury conclude that one or more of the hairs found in the boot of the Honda Civic came from Janelle Patton.
Dr Melton’s first report
Dr Melton’s first report was addressed to Ms Elizabeth Brooks, a biologist employed by the Australian Federal Police. The report recorded the fact that Dr Melton had received from the police five separate hair samples, four of which were two centimetres in length (hairs Q1 to Q4) and one of which was four centimetres in length (hair Q5).…

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 McNeill (Ruling No 2)

Details

AGLC: R v McNeill (Ruling No 2) [2007] NFSC 3
Case: [2007] NFSC 3
Decision Date: 16 FEBRUARY 2007

CaseChat Overview and Summary

The matter before the Supreme Court of Norfolk Island involved a ruling on the admissibility of mitochondrial DNA evidence in a criminal case against Glenn Peter Charles McNeill. The crux of the issue was whether the Court should exercise its discretion to exclude the evidence under sections 135(a) and (b) of the Evidence Act 2004 (NI), considering the potential for the evidence to be unfairly prejudicial or misleading or confusing. The Crown proposed to call Dr Terry Melton, an expert in mitochondrial DNA, to testify based on her analysis of hair samples found in McNeill's car. Dr Melton's reports and subsequent explanations during a voir dire were difficult to understand, leading to concerns about their comprehensibility to a jury.

The legal issues before the Court were whether Dr Melton's evidence was irrelevant or, if relevant, whether it should be excluded under the discretionary provisions of the Evidence Act 2004 (NI). The Court considered whether Dr Melton’s evidence might be unfairly prejudicial or misleading or confusing to the jury. The Crown argued that the evidence was irrelevant and potentially misleading, while the defence argued that the evidence, though complex, was comprehensible and should be admitted. The Court had to balance the probative value of the evidence against the risk of it being misused by the jury.

The Court found that while Dr Melton's evidence was relevant, the manner in which she presented her findings was problematic. Dr Melton adhered to scientific conventions that were not easily understood by a lay jury, risking confusion and misinterpretation of the evidence. The Court was particularly concerned that the jury might ascribe unintended meanings to her cautious and scientifically precise language. Despite Dr Melton’s expertise and honesty, the Court concluded that the risk of her evidence being misleading or confusing substantially outweighed its probative value. Therefore, the Court exercised its discretion under section 135 of the Evidence Act 2004 (NI) to exclude the evidence of Dr Melton.

Orders