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

- 14 -

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 in either the car or the premises which were broken into. Accordingly he does not contest the circumstances of the break and enter nor the car-stealing charge.

Recovery of items

7 The morning after the break and enter, Ms Reid’s handbag, her purse and the sunglasses were found by a Mr Tucker about a kilometre from the salon. The handbag, purse and the sunglasses were given to the police. They were entered as exhibits at the Miranda Police station and sent to the Division of Analytical Laboratories.

DNA testing evidence

8 The sunglasses examined contained a smear from which a swab was taken and analysed. It contained DNA consistent with a sample of the accused’s DNA taken later in 2007 following other matters. The DNA testing excluded the possibility of that contained in the swab being that of Ms Corcoran, Ms Reid or Mr Tucker.

9 DNA testing taken from a smear on the sunglasses was consistent with that of the accused - the report notes that the chances of the DNA being that of some other person are one to ten billion individuals in the general population.

10 DNA testing was carried out on Ms Reid’s handbag, purse and sunglasses by another officer at the DAL laboratories. The DNA testing on the handbag and purse was unsuccessful and no was DNA recovered.

Identification

11 The principal issue in the trial is whether there is any evidence connecting the accused to the hair dressing salon in which the aggravated break and enter took place (count 2) and the stolen car (count 1) was seen speeding away from an area in the immediate vicinity of the salon immediately after the break and enter.

12 There is no forensic or other evidence connecting the accused to the salon nor to the car. The particular offender in the salon was wearing a mask or handkerchief across the lower part of his face. He said nothing at any time during the course of the break and enter.

13 No witnesses identified the accused. Ms Reid, Ms Corcoran or Ms Burns were unable to identify the person who had broken into the salon. Indeed, Ms Reid and Ms Corcoran were asked to participate in a photographic array and selected persons other than the accused as being the likely offender.

14 The Crown’s case is that, given the circumstances of the break and enter, the fact that it was all over in about a minute and the fact that the offender stood over and assaulted Ms Reid and apparently cut Ms Corcoran with a knife, that confusion is entirely understandable. Indeed, it will be the Crown’s case that in the circumstances of the stress that they were each experiencing and the trauma of being confronted by somebody in this situation that deficiencies in identification are to be expected.

15 The owner of the vehicle, Ms Peree Uren, and her son, Michael Uren, saw an unknown person driving the car but neither of those witnesses could give a detailed description of the driver. There are some minor difference between their description of the car driver and the description of Ms Reid of the person who broke into the salon.

Raising of issue

16 The Crown Prosecutor had proceeded to open the case on the basis that there was no issue as to continuity - as he had been informed prior to the trial. This issue was raised by defence counsel once he had conferred with the DAL officer on the morning of the second day of the trial and ascertained that there were no permanent identification features. It is unfortunate that this issue was raised at this time, with the delays which were then occasioned – both for the jury and the trial - in the absence of other case management approaches.

Identification of sunglasses

17 The evidence of Ms Wedervang and Ms Robinson both from the Division of Analytical Laboratories on the voir dire is that there were some markings made with a permanent identifier on the sunglasses from which the swab was taken. That consisted of a forensic science number on the arms of the sunglasses. There were some other marks highlighting other areas on the sunglasses.

18 The aspect of Ms Robinson and Ms Wedervang’s evidence and which forms the basis of the objection which has been taken is that the numbers and markings placed on the sunglasses had been erased.

19 In response to the specific question in cross-examination Ms Wedervang said there was no other unique identifying feature for those sunglasses. She said that the sunglasses were similar in appearance. They were brown Christian Dior sunglasses. In those circumstances Defence counsel submits that there is no other identifying evidence that the sunglasses examined were the sunglasses taken from Ms Reid during the break and enter.

Significance of evidence

20 The only direct evidence that the Crown has is the DNA evidence on the sunglasses and that is why the identification of these sunglasses as being the sunglasses on which the DNA testing was carried out is a particularly crucial matter. The remainder of the Crown case is based on circumstantial evidence

Evidence : Ms Reid

21 Ms Reid identified the sunglasses as not only hers but as being the sunglasses taken from her during the break and enter.

22 Ms Reid (who owned the sunglasses and from whom they were taken by the offender during the break and enter) has said that they were the sunglasses that were handed back to her by the police. That occurred in March, 2007 – at which time it appears that no-one had been apprehended by the police for the offences nor had the accused’s DNA been obtained.

23 The sunglasses, when returned to Ms Reid, contained particular scratches on them which were not there when she originally had them at the time of the break and enter. She examined them closely in the witness box when she gave her evidence to the jury. She said that those were her sunglasses. It was not suggested to her that they were not her sunglasses.

Agreed/disputed facts

24 It is agreed that there was a continuity in the chain of custody of the sunglasses between when they were found by Mr Tucker, retrieved by them from his home and given to the police and taken by the police to DAL. It is not conceded that those were the sunglasses returned to Ms Reid.

25 The issue is whether the Crown can be permitted to lead evidence as to the DNA samples taken from the sunglasses when the DAL Laboratories cannot establish that they were the sunglasses of Ms Reid.

Evidence on the voir dire

26 Evidence was given by Ms Wedervang and Ms Sarah Robinson, also of the Division of Analytical Laboratories in relation to the procedures which have been followed.

27 Miss Robinson was the Team Leader of the Forensic Services Branch of the laboratory. In December 2006 she was a hospital scientist responsible for the examination, screening and confirmation testing of exhibits.

28 She produced notes in her handwriting of the examination of the Dior sunglasses carried out by her on 7 December 2006 (MFI 2). The worksheet notes indicated that the brown Dior sunglasses contained a scratch mark on the outside of the left lense. There was an area of smearing on the sunglasses which was swabbed by her and subject to DNA analysis.

29 It was that swab which produced the DNA consistent with that of the accused.

30 Ms Robinson was also able to identify the fact that she had written the forensic services (FS) number on the left arm of the sunglasses in a marker pen. She also took photographs of the sunglasses which were produced. Ms Robinson said that after her examination the sunglasses were returned to the police.

31 Ms Robinson said that the FS number had been written on the left arm of the sunglasses in a marker pen. This appears to have been rubbed off. Without that FS number there was no method of identifying the sunglasses as being the particular exhibit from which the DNA was taken.

Defence submissions

32 Defence counsel submits that the Crown cannot disprove there may have been a switch or substitution of the sunglasses while in the DAL laboratory. Given the identification procedures which were followed by the laboratory generally in this instance, and by Ms Robinson in relation to the testing of the particular sunglasses as evidenced in her (tendered) worksheets, it does not seem to me to be a case where there can be any suggestion of an interference with the integrity of the process – see R v Reynolds (CCA (NSW) unrep. 25 August 1992).

33 Mr Gordon submits that the authorities to which I have referred him as set out in these reasons pre-dated the provisions of the Evidence Act. He submits that the Crown must show that the item from which the DNA sample was taken was the identical item. In circumstances that this cannot be the case, that the evidence should be excluded. There is no way that the Crown can discount the possibility that there was a switch of the two sunglasses within the DAL laboratories prior to the swab being taken.

34 He also submits that there is an inference that could be drawn that the sunglasses are not identical in that Miss Reid said that when she had them prior to the robbery they did not have the scratches on them. Subsequently when they were given back to her they did have scratches on them.

Crown submissions

35 The Crown submits that the scratches were clearly apparent on the sunglasses which were tested within the DAL laboratories. That was noted by the testing officer, Miss Robinson. The Crown further submits that such scratches are completely consistent with the fact that the sunglasses were found by Mr Tucker on the side of the road in the gutter or on the footpath in the vicinity of Ms Reid’s handbag and purse.

36 The Crown agrees that it was inappropriate to return the sunglasses to Miss Reid - given that they contained the crucial identifying smear. Nevertheless, the Crown submits that it is clear that the sunglasses were taken to the police station, properly logged and identified, and then taken to the DAL laboratories where a full description of the glasses was given and noted. The area from which the smear and subsequent DNA sample were taken was also noted. In those circumstances the Crown submits that it does not matter what happened to those sunglasses subsequently. The evidence stands as it was at that time being the time of the analysis.

Law

37 I have referred counsel to the following authorities with my understanding of the relevant principles:

38 In Barron v Valdmanis (unrep. NSW SC 2 May, 1978) Meares J referred to the necessity of establishing the connection between the material found in an accused’s possession and the material subsequently analysed. That was in the context of a comparative analysis of bags of Indian hemp. Meares J referred to the analysis in Young v Commissioner for Railways (1962) NSW SR 647 at 651, where Brereton J referred to the methods of establishing a chain of possession of an item and, in particular, whether the item was identical with the material analysed. The first is what is traditionally referred to as the chain of custody proof. The second is to identify that which was found in the possession in the relevant instance with the physical characteristics of the item analysed.

39 It is necessary for there to be evidence to establish that the physical characteristics of the items which were the subject of the testing were identical with that said to be in the relevant possession - in this case, the items which became the recipient of the accused’s DNA.

40 It is clear from the decision of Bergin and Burr (CCA (NSW) unrep. 22 June 1985) per Street CJ that there needs to be an adequate basis for the jury to conclude that the material analysed was that in fact taken – in this case, the swab from the sunglasses.

41 Evidence as to similarity of appearance can be given – see R v Adams [2004] NSW CCA 279. While standing by itself such evidence may not be sufficient to satisfy a jury as to identity beyond reasonable doubt, the weight to be given to the evidence is a matter for the jury taking into account the other material available.

42 In my view, subject to the satisfaction of the requirements of sections 135, 136, 137 of the Evidence Act and any residual discretion as to issues of fairness or illegality, the issue is one for the jury with appropriate directions being made.

43 Evidence is not prejudicial simply because it strengthens the prosecution case – Festa v R (2001) 208 CLR 593 at [51].

44 Defence counsel referred me to two decisions of Judge GD Woods QC of this Court in R v Borg (31 October 2007 and 5 November 2007) in which His Honour excluded evidence which was the subject of a forensic analysis. In that case, there were no numbers on various magazines which were part of the overall ballistics evidence relied on by the Crown.

45 That case seems to be distinguishable from this case on a number of basis. His Honour was concerned about “the troubling possibilities that some event has occurred which might cast real doubt on the process of testing the item in question”. Further, the evidence in that case was not a vital part of the Crown case. That is not the case here.

Consideration

46 In my view, consistently with the decision in Bergin and Burr what is involved here is essentially a jury question. It is for the jury, and not for me, to determine whether there has been any relevant possession of the items taken during the break and enter - R v Reynolds (CCA (NSW) unrep, 25 August 1992) at 21.

47 Here, there is no direct evidence that the sunglasses on which the DNA was found were precisely the same sunglasses as taken from Ms Reid. However, in my view, there is material which is available to the jury from which they could conclude as a matter of overwhelming inference that the sunglasses were the sunglasses from which the swab was taken and on which the accused’s DNA was located. Further, there is certainly sufficient evidence before the jury for them to be satisfied beyond reasonable doubt that the chain of possession had not been broken and the sunglasses were the sunglasses on which the DNA was located and analysed.

48 In my view, the probative value of this evidence is extremely high in that, absent any explanation as to how the accused’s DNA came to be found on the sunglasses, that DNA sample clearly links the accused with the handbag and its contents which were taken from Miss Reid during the course of the break and enter.

49 Absent any other evidence or explanation, and given the evidence of the police and the DAL analysts up to the time of the removal and analysis of the swab, there is no other evidence which could support an inference other than that the item examined were the sunglasses retrieved following the robbery.

50 I do not regard the prejudicial effect of the evidence as to the sunglasses as being unfair in the circumstances where the jury would be properly directed as to the use to which the evidence can be put and the deficiencies said to be in existence. The jury will be directed that they must be satisfied beyond reasonable doubt that the sunglasses from which the DNA sample was taken were the same sunglasses that were in Ms Reid’s handbag.

Fairness

51 In terms of any residual discretion I have in assessing the fairness or potential unfairness to the accused, there does not seem to me to be any evidence nor suggestion of manipulation of the procedures nor the testing involved. What was done by the police and DAL was done within 11 days of the incident and many months prior to the accused being apprehended. There was then an independent paper trail established through the worksheets and the photographs. Had there not been that independent and contemporaneous documentation, I may well have been of a different view. What issues there may have been with continuity have been overcome in my view by the direct evidence of the analyst.

52 What has taken place here goes beyond what was referred to by Hodgson JA in R v Sing [2002] NSWCCA 20 at [35] leading to what was there classified by His honour as a serious gap in the prosecution case. The evidence relied on by the Crown has not been simply evidence of the procedures and the giving of instructions and otherwise leaving the matter to inferences. Here the officer who did the work and completed the worksheets was available as were the photographs taken of the particular sunglasses.

53 Further, the items involved were sunglasses which were particular kind or brand of sunglasses. It is not as though what was involved was a generic bag or container which could be easily substituted or mistaken.

54 In those circumstances, there is not – nor in my view, can there be – any suggestion of any ex-post facto substitution of results to ‘fit-up’ the accused. There is no suggestion that any of these actions were taken either manipulatively or in any way to attempt to frustrate the defence.

55 The Division of Analytical Laboratories used a permanent marker pen for the application of the FS number. It did not take steps to ensure that such markings were permanent. However, the relevant analysing officer did photograph the items including the scratches which were the subject of evidence as well as recording her observations.

56 It is clear from the evidence of the OIC, Detective Senior Constable Bullock, that the sunglasses were returned to Ms Reid by a Constable Sullivan. The OIC agreed that there was no apparent pressing need for the return of the sunglasses to Miss Reid. However, it also appears that the accused had not been apprehended at that stage – he was not arrested until the January of 2008, presumably after DNA analysis taken from him in connection with other matters matched the police records.

57 With the wisdom of hindsight, it was probably unwise to return a crucial item of identification evidence ahead of any possible trial. However, the police were clearly operating on the view that they had sufficient evidence certifying that the DNA sample was the sample taken from the sunglasses. Given that no person had been apprehended, there was no reason why a member of the public who had been robbed of items should not have those items returned to her. To require otherwise would require the police to store all exhibits for an indefinite time when those items are clearly owned by members of the public who are entitled to their return.

Ruling

58 I admit the evidence of the DNA material taken from the sunglasses.

Directions

59 I will hear counsel on the specific directions sought in relation to the absence of the identifying features on the sunglasses in addition to the direction that that they must be satisfied beyond reasonable doubt that the sunglasses from which the DNA sample was taken were the same sunglasses which were in Ms Reid’s handbag.

Notation

60 The accused was acquitted on both counts by the jury on 7 November, 2008.

**********