R v Sing

[2002] NSWCCA 20

Reported Decision: (2002) 54 NSWLR 31

New South Wales

Court of Criminal Appeal

CITATION:	R. v. Sing [2002] NSWCCA 20
FILE NUMBER(S):	CCA 60309/00
HEARING DATE(S):	13 February 2002
JUDGMENT DATE:	13 February 2002
PARTIES :	Regina - respondent Shane Richard Sing - appellant
JUDGMENT OF:	Hodgson JA at 1; Levine J at 45; Howie J at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0056
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	Mr. P. Boulton with Mr. T. Watts for appellant Mr. W. Dawe QC for respondent
SOLICITORS:	Burston Cole & Co. for appellant S.E. O'Connor for respondent
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - DNA evidence - Persons who carried out tests not called - Duties of prosecutor - EVIDENCE - Hearsay - Expert analysis of DNA evidence - Whether based on hearsay - Whether should be excluded as prejudicial. D.
LEGISLATION CITED:	Evidence Act ss.60, 135, 137
CASES CITED:	R v. Kneebone [1999] NSWCA 279
DECISION:	Appeal allowed, conviction quashed and new trial ordered.

60309/00
HODGSON JA
LEVINE J
HOWIE J
Wednesday 13 February 2002.

REGINA v. Shane Richard SING

Judgment

NON-PUBLICATION ORDER IN RELATION TO COMPLAINANT’S NAME

1 HODGSON JA: On 21 February 2000 the appellant was indicted before Coolahan DCJ in the Newcastle District Court on four charges.

2 The first charge was a charge under s.112(2) of the Crimes Act that on or about 24 October 1996 he did break and enter the dwelling house of M at Bolton Point and then in the dwelling house committed a felony, namely sexual assault in circumstances of aggravation, namely he deprived M of her liberty.

3 There were then three charges under s.61J(1) of the Crimes Act, each in the same terms, namely that on or about 24 October 1996 at Bolton Point he had sexual intercourse with M without her consent, knowing that she was not consenting, and at the time of the offence he threatened her by means of an offensive weapon to inflict actual bodily harm upon her.

4 The appellant pleaded not guilty and stood trial before Coolahan DCJ and a jury. On 25 February 2000 verdicts of guilty were delivered in relation to all four charges. On 17 May 2000 the trial judge sentenced the appellant in relation to each count to seven years imprisonment, with a non-parole period of four and a half years to date from 24 February 2000, to be served concurrently. The appellant appeals against his conviction and seeks leave to appeal against the sentence.

5 In the prosecution case evidence was given by the complainant, whose name was made subject to a non-publication order, that on 24 October 1996, after attending a concert, she returned to her home at Bolton Point where she lived alone. Her evidence was that when she had left earlier that day she had turned off the lights and closed all doors and windows. Upon arriving home, she noticed that lights were on inside, and when she went inside she saw that the dining room window was open. She was then attacked by a man, who used a knife in forcing her to submit to involvement in a series of particularly aggravated sexual acts, in circumstances where the attacker must have known she was not consenting. The attacker then tied the complainant’s wrists and feet, and was seen by the complainant to take a floral jewellery box containing imitation jewellery and put it into one of her bags, which she described as a black sports bag with zippers and a handle, and also to take a videotape and a packet of Christmas bonbons.

6 After the attacker left, the complainant was able to free her feet, and she went to the lounge room where she discovered that her telephone and answering machine and television and video recorder were gone. To seek help, the complainant ran across the road, still naked and with her hands tied, to a house occupied by Suzanne Main and Darren Corry. The police were called, and the complainant was taken to John Hunter Hospital.

7 At the hospital the complainant was examined by Dr Cheryn Palmer, who noted injuries consistent with the events described by the complainant. Dr Palmer gave evidence that she took a number of swabs, including a swab from the high vagina, which were rolled onto slides and which, together with ten mils of blood from the complainant, were placed into a sealed bag together with her notes, which was then placed into a locked refrigerator.

8 According to Detective Christian, the officer in charge of the investigation, on 4 February 1997 he collected this sealed bag, placed it into a locked refrigerator at Toronto police station and on 5 February 1997 he conveyed it to the Division of Analytical Laboratories where he handed it to Ms Carey Biggart.

9 The complainant’s evidence was that she did not get a clear look at the assailant: however, she said he was not disguised, had short hair and a spiky haircut, and was wearing a flannelette shirt, a tee-shirt and jeans.

10 Four days after the attack, the complainant was shown a number of albums with photographs, and she nominated one as a photograph of her assailant. This proved to be incorrect.

11 On 27 September 1997, the complainant was shown a video compilation which included an image of the appellant and she did not identify this image.

12 On 25 February 1998, Detective Christian and another detective spoke to the appellant, who agreed to provide a blood sample. He was accompanied to his nominated doctor’s surgery, where the sample was taken. Detective Christian gave evidence that he took this sample to Granville police station, where he prepared a specimen exhibit form, and then to the Division of Analytical Laboratories where he handed it to Ms Biggart.

13 Ms Biggart gave evidence that on 21 February 1997 Detective Christian handed her the sealed bag, which has also been called the sexual assault identification kit, and that she processed the items inside this kit. She said that semen was detected on some of the smears, including the high vaginal smear. The swabs were placed into a freezer room. She prepared two stain cards from the blood sample from the complainant, one was used for testing, and the other placed in a locked freezer.

14 Ms Biggart also gave evidence that on 25 February 1998 she received the appellant’s blood sample from Detective Christian, and from this prepared two stain cards which were dealt with as were the previous two stain cards.

15 Evidence was given by Rudolf Weigner, a forensic biologist at the division of analytical laboratories, to the effect that in about May 1998, following tests on the complainant’s blood sample, the high vaginal swab and the appellant’s blood sample being done under his supervision, and with his direct involvement in the case of the first of these, he interpreted the results of these tests. In respect of ten points of reference in the result from each sample, he said there was no difference between the DNA from the vaginal swab and the DNA from the appellant’s blood, but significant difference between both of these and the DNA from the complainant’s blood. He said that the particular DNA profile which was common to the vaginal swab and the appellant’s blood would be expected to be found in only about one person in 1.2 million people of the general population.

16 Evidence was also given by Robert Goetz, another forensic biologist at the division of analytical laboratories, that, apparently in about April 1999, he used what was called Profile Plus DNA analysis on nine markers in the DNA result from the vaginal swab and the appellant’s blood sample, and found no differences between them; and he said that the particular DNA profile would be expected to be found in no more than about one person in 3,600 billion people.

17 There was other lay evidence in the case.

18 Suzanne Main gave evidence that on the evening of 24 October 1996 she and her de facto husband Darren and their children went to a barbecue at the nearby home of Chris and Rachael Sing, where she was introduced to the appellant, who is Chris’s brother. Ms Main said the appellant had, at that time, really short hair in crew cut style. She said that during the evening Darren, Chris and the appellant left the house and returned later, and that at about 8.30pm she and Darren and the children left and walked home. She said the appellant came with them. She said that before she went to bed she saw Darren and the appellant looking at photo albums, and that after she went to bed she heard the front door close at about 11pm. She woke at about 1am and heard the complainant screaming, and she went down and saw the complainant and Darren inside their front doorway.

19 Rachael Sing gave evidence that on 24 October 1996 the appellant came to her home. She said she remembered Darren Corry being there, but not Suzanne Main, and she said there was no barbecue on that night. She said that in about mid-evening the appellant and Darren Corry left the house, and that she waited up to about 1.30am when the appellant returned. She said she saw him come from a bush track leading in the direction of the street where Darren Corry lived, and that he had a black bag with him which he did not have when he left, like a sports bag with a zipper and handles. She said the appellant told her he had broken into a house and that the lady had come home while he was there. She said that inside the black bag she saw jewellery, a video, Christmas decorations and some dildos and vibrators. In cross-examination she conceded she had lied to police in a statement made on 24 September 1997, and it was suggested to her that she gave evidence with a motivation to shift blame from her husband.

20 There was also evidence from Nicole Stewart, who had been in a relationship with the appellant for about five years up to 1995, and Alyssa Chamberlain, who had been in a relationship with the appellant in 1996.

21 Ms Stewart said that in August 1997 she saw a floral cardboard jewellery box in the appellant’s bedside drawer, and that subsequently the appellant said to her that he was in trouble for breaking into someone’s house and tying a woman up. Ms Chamberlain said that in about December 1997 the appellant said to her that he was involved in a break and enter in Newcastle in October, and that his brother had left him there. It was suggested in cross-examination to both these witnesses that they had motivation for giving evidence against the appellant.

22 The appellant made no admissions, gave no evidence at trial, and called no witnesses. The appellant relied on the following five grounds of appeal:

Ground 1: His Honour erred by admitting into evidence and by failing to withdraw from evidence the testimony of Rudolph Weigner and Robert John Goetz concerning the DNA test results.

Ground 2: His Honour inadequately warned the jury about the charges involved in assessing the evidence of Rudolph Weigner and Robert John Goetz when there was no evidence called from anybody who had conducted the DNA testing of the appellant's blood.

Ground 3: His Honour erred in directing the jury as to the elements of count one when he directed them that "if you are satisfied that it was unlawful for him to get into the house then, as a matter of law that constitutes a breaking and entering. It does not have to be an actual smashing of windows. Any unlawful entry will constitute a breaking and entering".

Ground 4: The verdict of the jury should be set aside because they are unreasonable or cannot be supported, having regard to the evidence.

Ground 5: The sentences are too severe.

23 I will deal shortly with grounds 3 and 5. I deal with them together because Mr Boulten, for the appellant, conceded that ground 5 as to the severity of the sentence could only succeed if there was success on ground 3 relating to one of the charges.

24 Mr Boulten’s submission in relation to ground 3 was that the direction referred to in the ground misstated the law. He submitted that there had to be an actual or constructive breaking, and that this occurred only where the security of a house is infringed, and that it was not a breaking to further open a door or window which was partly open; and he referred to Walker (1978) 19 SASR 532 at 534, and Galea (1989) 46 A Crim R 158 at 161. Accordingly, the direction that “any unlawful entry will constitute a breaking and entering” was not correct. He conceded that leave was necessary pursuant to r.4, because the point was not taken below. He submitted that a misdirection as to the elements of an offence was so fundamental as to go to the root of the proceedings: see Wilde (1988) 164 CLR 365 at 373.

25 The evidence of the complainant at the trial was that she had shut all doors and windows before leaving the house so that, if her evidence to that effect was accepted, there must have been a breaking and entering by the attacker unless some other person had first and independently opened a door or window through which the attacker has subsequently proceeded. Had a direction to that effect been sought below, there is no reason to suppose that a correct direction would not have been given.

26 It seems to me extremely unlikely that, had such direction been given, the result would have been any different; that is, extremely unlikely that the jury would either have not accepted the complainant’s evidence that she shut doors and windows or would have thought there was some reasonable possibility that some other person had independently of the attacker opened a door or window. In my opinion, in those circumstances, it would not be appropriate to grant leave to rely on this ground.

27 I turn now to grounds 1, 2 and 4, which I will deal with together.

28 At the trial, objection was taken to the evidence of Mr Weigner on the basis that the crucial DNA tests were not carried out by him but only, as he put it, under his supervision. A similar objection was taken when Mr Goetz was called. At the conclusion of the prosecution case, Counsel for the appellant sought an order that the DNA evidence be either withdrawn as inadmissible or else withdrawn pursuant to s.137 of the Evidence Act.

29 I note that it was not specifically put by counsel at the trial that the evidence of Mr Weigner and Mr Goetz must be based on hearsay reports made to them, but that has been argued on appeal. I do not think specific leave is required under r.4 for that point to be taken, when clear objection was taken to the evidence generally.

30 In my opinion it is not completely clear whether or not the evidence of Mr Weigner and Mr Goetz involved hearsay or was based on hearsay. As I understand Mr Weigner’s evidence, it was to the effect that there were established procedures for testing samples which result in the production of print-outs of relevant parts of DNA, and that these print-outs can then be examined by persons such as Mr Weigner and Mr Goetz so as to determine whether two such print-outs record DNA which could be from the same person and, if so, what is the probability of a person selected at random of having DNA with the relevant characteristics displayed by the print-outs. In addition, the established procedures involved the production of intermediate print-outs which enable a person such as Mr Weigner to check that the matter is proceeding correctly.

31 Mr Weigner gave evidence that he instructed staff to carry out these procedures, and that he checked the intermediate print-outs to ensure that there were no errors. The evidence of the existence of procedures and the evidence of the giving of instructions is not itself hearsay. The question as to whether hearsay is involved, it seems to me, depends upon whether the procedures themselves involve persons making reports or representations in which they intend to assert that something is the case.

32 It seems to me to be probable that this must have happened, if only in order that the ultimate results of the tests be identified as relating to, in this case, the vaginal swab from the complainant and the blood sample from the appellant. It seems to me that the likelihood is that the print-outs which were analysed by Mr Weigner and Mr Goetz must themselves have contained the identification in question, or else must have been handed to them with the identification being reported by the person handing the print-outs to these people. If hearsay was involved in that way, it seems to me that, without the effect of that hearsay material, the position would be that the opinions of Mr Weigner and Mr Goetz would be irrelevant because not shown to relate to the samples taken from the complainant and from the appellant.

33 It might be argued that, even if hearsay is involved in this way, there could be a question, if the print-outs used carried the identification of the sources of the samples, they could be admissible as the basis of opinions expressed by the experts; and the identification of the sources could then be admissible as some evidence of their truth under s.60 of the Evidence Act. However it seems to me that that argument may have the fallacy identified earlier, namely that the admissibility of the opinion depends first on relevance, which in turn depends on the identification of the samples; and so the admissibility of the opinions cannot be used to establish the admissibility of the hearsay identification of the samples under s.60.

34 Whatever is the correct answer to the hearsay question, I think there is substance in the appellant’s complaint that to admit evidence like that of Mr Weigner and/or Mr Goetz over objection, without the evidence from the persons who actually carried out the procedures that resulted in the print-outs, and indeed without any evidence that there was any difficulty in calling these persons, involved unfair prejudice to the appellant. It may be that these persons would have no recollection of exactly what they did and would have to rely on records; but that is not generally sufficient justification for not calling, in a criminal prosecution, a witness involved directly in a significant part of the prosecution case.

35 Counsel for the appellant at the trial said he had an expert present in court for the purpose of assisting him with questions to be put to the persons who actually carried out the procedures, and I think this Court should proceed on the basis that there were relevant questions which the appellant’s counsel wished to put to these persons if they had been called. There is an obligation on the prosecution to call available witnesses of events alleged to constitute the offence and of essential parts of the prosecution case, at least unless there is some justification for not doing so: see for example R v Kneebone [1999] NSWCCA 279. I think this does extend to witnesses such as those in this case dealing with important links in the prosecution case. Particularly since DNA evidence can be so compelling, I do not think the matter of the correct carrying out of testing procedures should normally be proved, over objection, merely by evidence of the existence of the procedures and the giving of instructions, and otherwise left to inference. If for any reason the persons who actually did the work are unavailable, there may be justification for such a course. But there is no suggestion of that here.

36 For those reasons, even if the evidence of Mr Weigner and Mr Goetz were admissible, notwithstanding the possibility of hearsay, in my opinion it should have been excluded under s.135 or s.137 of the Evidence Act.

37 As mentioned before, there is no need in this case to obtain leave under r.4. However, Mr Dawe QC for the Crown has submitted that this is a case where the proviso should be applied. He submitted this on two grounds: first, that this Court could determine that the probability of error in the carrying out of the tests was so small that the appellant had not lost any realistic possibility of acquittal; and second, that, even without the DNA evidence, the prosecution case was so strong that no realistic possibility of acquittal had been lost.

38 If this Court were free to speculate about the matter, one might speculate that there is only a very small probability that there was error in the carrying out of the tests, or that a significant possibility of error could be demonstrated to a jury either by cross-examination or evidence. However, for reasons I have given, I think this was a serious gap in the prosecution case, and I do not think this Court should speculate about the matter. I do not think this Court can be certain that the appellant has not lost a realistic chance of either having the DNA material excluded, or at least significantly weakened.

39 As regards the other evidence in the case, I think that evidence would be sufficient to support a conviction, but I do not think it is sufficient to justify a conclusion that a conviction was inevitable or that there would not have been a reasonable possibility of acquittal, if that were the only evidence in the case. In my recounting of the evidence I have adverted to some inconsistency in the evidence of two of the most important of the witnesses, and there was challenge in cross-examination to some of the prosecution witnesses which may possibly have impressed a jury.

40 Accordingly, I do not think the Crown has established that the proviso should be applied.

41 The final question on which there has been debate is whether this is a case where a new trial should be ordered or a verdict of acquittal entered.

42 Mr Boulten submitted that the Crown was on notice, indeed prior to the trial, that it would be put to strict proof of all matters concerning the DNA material. The Crown made a forensic decision to run the trial without the evidence which this Court has now said to be required, and in those circumstances he submitted the appellant should not be subject, in effect, to the double jeopardy of a further trial. However, as I have indicated, in my opinion the other evidence in the case, apart from the DNA evidence, could support a conviction. The offences involved are extremely serious ones. There has been no previous decision which has dealt with the particular question which this Court has dealt with, and it appears that there has, up to this time, been a practice whereby the persons actually involved in the tests have not been called.

43 In all the circumstances I think the public interest does require that there be a new trial. It is unfortunate particularly that the complainant will be required to give evidence again at a trial, but on the whole I think this is what the public interest requires.

44 For the reasons I have given, in my opinion the appropriate order is that the appeal be allowed, the conviction quashed and that there be a new trial.

45 LEVINE J: I agree. I have nothing to add.

46 HOWIE J: I agree. In my view the unexplained failure of the Crown to call witnesses necessary in proof of a very significant part of the Crown’s case has deprived the appellant of the opportunity to test that part of the case before the jury. It also has deprived the Court of the opportunity to determine whether or not the evidence was admissible or whether it should be rejected in the exercise of discretion. Those two matters, in my view, lead to the possibility of a miscarriage of justice having occurred in this particular case, and therefore the convictions ought to be quashed.

47 I agree that the proper order to make is to order that the matter go for re-trial.

: The orders of the Court are as I proposed.

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