R v Nathan Green - [2008] NSWDC 245

CITATION: R v Nathan Green [2008] NSWDC 245

HEARING DATE(S): 03/11/2008 - 07/11/2008

JUDGMENT DATE:
5 November 2008

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: Evidence of the DNA material admitted.

CATCHWORDS: Admissibility of evidence - Accused’s DNA evidence - Continuity and chain of custody - Lack of certainty as to the item from which the DNA sample was taken

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Reynolds (CCA (NSW) unrep. 25 August 1992)
Barron v Valdmanis (unrep. NSW SC 2 May, 1978)
Young v Commissioner for Railways (1962) NSW SR 647
Bergin and Burr (CCA (NSW) unrep. 22 June 1985)
Festa v R (2001) 208 CLR 593
R v Adams [2004] NSW CCA 279
R v Borg (NSW District Court, 31 October 2007 and 5 ovember 2007)
R v Sing [2002] NSWCCA 20

PARTIES: Regina
Nathan Green

FILE NUMBER(S): 08/11/0659

COUNSEL: Crown: Mr Lungo
Defence: Mr Gordon

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JUDGMENT

Indictment

1 The accused is charged with two counts, car stealing (count 1) and aggravated break and enter with special circumstances of aggravation (wounding) (count 2) on 17 November, 2006.

Objection

2 Counsel for the accused has objected to evidence being led as to the accused’s DNA being found on sunglasses taken from one of the victims of the aggravated break and enter the basis of count 2 on the indictment.

3 The Crown proposes to lead that evidence from Ms Wedervang, who is an officer attached to the Division of Analytical Laboratories at Lidcombe. The basis of the objection is that Defence counsel submits that the Crown cannot establish that the sunglasses from which the swab was taken were the sunglasses which were taken from the victim at the robbery.

Facts/ Crown case

4 A short summary of the relevant evidence on which the Crown relies is that on 17 November, 2006, the La Fayette Hair Salon at Caringbah was broken into at about 8 pm. A masked offender burst through the glass door of the salon carrying a knife. He lunged at the proprietor of the salon (Ms Corcoran) and cut her arm and wrist with a knife. After attacking a customer in the salon, Ms Reid, he wrestled or pulled her to the floor. He took Ms Reid’s handbag containing her purse and her Christian Dior sunglasses. The offender then fled the salon.

5 Ms Corcoran, Ms Reid and another staff member, Ms Burns, ran outside. They saw a car being driven in the adjoining street. Ms Corcoran and Ms Reid identified the driver as the same man who had broken into the salon. They called 000 and identified the registration number of the car. That car had been stolen at about 6:15 pm in Woonoona about 50 kilometres away. It was recovered at about 10 pm that night, totally burnt out. The number plates, bearing the same numbers as read out in the 000 call, were in the car.

Defence case

6 The Defence case is that the accused was not…

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 Nathan Green

Details

AGLC: R v Nathan Green [2008] NSWDC 245
Case: [2008] NSWDC 245
Decision Date: 5 November 2008

CaseChat Overview and Summary

The case of R v Nathan Green came before the court, where the defendant was charged with various criminal offences. The central issue revolved around the admissibility of DNA evidence obtained from a sample that was allegedly linked to the defendant. The dispute centred on whether the evidence met the requisite standards of continuity and chain of custody, given that there was uncertainty about the specific item from which the DNA sample was derived.

The legal issues at hand required the court to determine whether the DNA evidence was sufficiently reliable and properly handled to be admitted in court. Key considerations included the chain of custody protocols and the continuity of the evidence from the point of collection to the point of analysis, as well as the specificity of the item from which the DNA was extracted. The court needed to assess whether the prosecution had adequately established these elements to satisfy the legal standards for admissibility.

The court, after reviewing the evidence and the arguments presented, concluded that despite the uncertainty regarding the specific item from which the DNA sample was taken, the overall chain of custody and handling of the evidence were satisfactory. The court found that the evidence was sufficiently reliable and adhered to the necessary protocols to be admitted. Consequently, the court ruled in favour of the prosecution, allowing the DNA evidence to be used in the case against the defendant.

The final orders of the court were that the evidence of the DNA material was admitted. The trial proceeded with this evidence forming a part of the prosecution's case against the defendant.

Orders

Orders of the court

Evidence of the DNA material admitted.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Nathan Green [2008] NSWDC 245
HEARING DATE(S):	03/11/2008 - 07/11/2008
JUDGMENT DATE:	5 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	Evidence of the DNA material admitted.
CATCHWORDS:	Admissibility of evidence - Accused’s DNA evidence - Continuity and chain of custody - Lack of certainty as to the item from which the DNA sample was taken
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Reynolds (CCA (NSW) unrep. 25 August 1992) Barron v Valdmanis (unrep. NSW SC 2 May, 1978) Young v Commissioner for Railways (1962) NSW SR 647 Bergin and Burr (CCA (NSW) unrep. 22 June 1985) Festa v R (2001) 208 CLR 593 R v Adams [2004] NSW CCA 279 R v Borg (NSW District Court, 31 October 2007 and 5 ovember 2007) R v Sing [2002] NSWCCA 20
PARTIES:	Regina Nathan Green
FILE NUMBER(S):	08/11/0659
COUNSEL:	Crown: Mr Lungo Defence: Mr Gordon