R v Rowe - [2004] SASC 427

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROWE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
17 December 2004
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Appeal against conviction – Aggravated Serious Criminal Trespass and Assault Police – Two buccal swabs taken of the appellant by police officers - DNA evidence taken from the swabs admitted at trial – whether trial Judge erred in admitting DNA evidence – previous ruling of another court that evidence of conversation relating to taking of the swab inadmissible – relevance of previous ruling – consideration of requirement for forensic procedures pursuant to Criminal Law (Forensic Procedures) Act 1988 – consideration of requirement for forensic procedures pursuant to Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002 – whether the police complied with the forensic procedure requirements – whether an abuse of process – whether the conviction was unsafe and unsatisfactory – no miscarriage of justice – appeal dismissed.
Criminal Law (Forensic Procedures) Act 1998 s 4, s 7(1), s 7(2) and s 15; Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002 s 4, s 14(2), s 15 and s 45; District Court Rules 1992 r 8 and r 9; Summary Offences Act 1953 s 74D and s 74E, referred to.
Hussien v Chong Fook Cam [1970] AC 942; Police v Beck (2001) 79 SASR 98; Iskar v Police (2003) 84 SASR 586, applied.
R v MDR (2002) 223 LSJS 405, considered.

R v ROWE
[2004] SASC 427
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Bleby J. There is nothing that I wish to add to those reasons.
BLEBY J:
Introduction
The taking of a buccal swab from a person by a police officer is and has at all material times been a forensic procedure as defined in the Criminal Law (Forensic Procedures) Act 1998 (“the Act”). By means of a buccal swab a sample of the person’s DNA may be taken and analysed for forensic purposes.
This case concerns the taking of two buccal swabs from the appellant, the admission into evidence of the DNA profile of each sample taken and its matching with the DNA profile from a blood stain on the shirt of a police officer the subject of one of the offences with which the appellant was charged.
The proceedings
The appellant was initially charged, on 26 March 2002, with the offences of aggravated serious criminal trespass in a place of residence, assaulting a police officer and assault occasioning actual bodily harm. He was committed for trial on those charges on 21 June 2002. On 9 February 2004, the DPP filed…

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 Rowe

Details

AGLC: R v Rowe [2004] SASC 427
Case: [2004] SASC 427
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the case of R v Rowe, the appellant was convicted of aggravated serious criminal trespass and assault police. The appeal against conviction focused on the admission of DNA evidence obtained from buccal swabs taken by police officers. The key legal issue was whether the trial judge erred in admitting this DNA evidence, especially in light of a previous ruling that evidence of a conversation relating to the taking of the swabs was inadmissible. The appeal raised questions about the compliance with forensic procedures under the Criminal Law (Forensic Procedures) Act 1988 and the Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002, as well as the potential for an abuse of process.

The court examined the requirement for forensic procedures and whether the police complied with these statutory requirements. It was noted that the DNA evidence was subjected to rigorous scrutiny by the trial judge, who also directed the jury to be satisfied beyond reasonable doubt as to the reliability and accuracy of the DNA analysis. The court found that the DNA evidence was more reliable than the testimony of a single eyewitness and that there was no miscarriage of justice. The appeal was ultimately dismissed, with the court concluding that the conviction was safe and satisfactory.

Gray J concurred with the orders proposed by Bleby J, adding no further remarks. The court's decision affirmed the conviction, finding that the DNA evidence was properly admitted and did not result in an unsafe or unsatisfactory conviction. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant sought to argue that because the DNA evidence was the only evidence of identification of the appellant, the conviction was somehow unsafe and unsatisfactory. The evidence was the subject of expert opinion. It was subjected to close scrutiny by the trial Judge who directed the jury that they must be satisfied beyond reasonable doubt as to the reliability and accuracy of the DNA analysis. It probably founded a safer basis for a conviction than the frailty often attending the evidence of a single eye-witness who gives evidence of identification of an offender. There is no substance in this ground.Conclusion In my opinion the appeal should be dismissed. GRAY J: I agree with the orders proposed by Bleby J. There is nothing I wish to add to his reasons

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.