The Queen v Brown
[1990] TASSC 28
•20 June 1990
Serial No 22/1990
List “A”
COURT: SUPREME COURT OF TASMANIA
CITATION: The Queen v Brown [1990] TASSC 28; A22/1990
PARTIES: THE QUEEN
v
BROWN, Peter John
FILE NO/S: C14/1989
DELIVERED ON: 20 June 1990
JUDGMENT OF: Wright J
Judgment Number: A22/1990
Number of paragraphs: 37
Serial No 22/1990
List "A"
File No C14/1989
THE QUEEN v PETER JOHN BROWN
REASONS FOR JUDGMENT WRIGHT J
Ruling (Delivered Orally at Trial) 20 June 1990
Objection is taken to the admissibility of numerous aspects of the evidence of Detective Sergeant John Malcolm Blue, the senior police officer in charge of this investigation. The objections arise in relation to interviews between Sergeant Blue and the accused following the death of Shirley Burgess with whose murder the accused is now charged.
From evidence given in the case so far, it appears that Mrs Burgess suffered a violent death on the evening of 30 April 1987. Some of the passages of evidence objected to are clearly inadmissible, and the Crown has agreed to the deletion of a number of passages which are reproduced in Mr Blue's proof of evidence. I agree with the Crown concessions that these passages should be excluded. Evidence upon the voir dire was called from Sergeant Blue and a number of police witnesses. Evidence was also given by scientific experts and others as to DNA testing of the accused's blood in England some time later, but as the DNA evidence must also be considered from the point of view of its admissibility under the principles regarding the reception of scientific opinion and techniques, I will deal with that evidence separately at a later stage. The accused did not give evidence on the voir dire, nor was evidence called on his behalf. Substantial issues of credit were raised upon the voir dire which have particular relevance to a conflict of evidence between the Acting Chief Superintendent of Her Majesty's Prison at Risdon, Mr George Dennis Lawler on the one hand, and Sergeant Blue, Sergeant Gillie and to a lesser extent, Detective Constable Richardson on the other. I should say at the outset, without in any way seeking to impeach the honesty of Mr Lawler, that although his evidence was given with assurance and complete frankness and candour, there were significant internal contradictions and inconsistencies in what he said which cause me to doubt its reliability and thus to reject that evidence where it conflicts with that of Detective Sergeant Blue and the other officers. This does not mean that there was no conflict between Detective Sergeant Blue himself and the other police and indeed there were some areas of conflict and where that conflict occurred, I prefer the evidence of Detective Sergeant Gillie and Detective Constable Richardson to that of Sergeant Blue. Against these general assessments of reliability I return now to discuss the questioned evidence.
At approximately 9.35pm on Thursday 30 July 1987, Sergeant Blue spoke to the accused in the presence of Detective Sergeant Paul Gray at the Bellerive Police CIB office. He informed the accused that they were making enquiries into the murder of Shirley Burgess. The accused was asked whether he knew Mrs Burgess and when he had last seen her. He was then asked where he was on the night of the murder. The following exchange then occurred:
"BROWN: Went to football training, then to the Sun Valley.
BLUE: How do you remember that day?
BROWN: I got out that morning.
BLUE: Got out of where?
BROWN: Gaol."
During a subsequent conversation between Sergeant Blue and the accused on 30 June 1988 when the question of the accused's alibi for the night of the murder was raised again, the accused said to Blue, "you know I got out of gaol that day". This appears to be a reference back to the earlier conversation which I have set out above. Obviously therefore, the objection to both passages of evidence should be dealt with together. Counsel for the Crown informed me without dissent, that the accused, at the relevant time, that is, prior to 30 April 1987, had been serving a gaol sentence for non–payment of fines. It was thus suggested that the fact that the accused had been in gaol could be explained as being less prejudicial to him than if he had been serving a sentence for some more serious matter or for a criminal offence. I have no doubt that there is some validity in this argument. It may also be argued no doubt, that an accused man is more likely to remember the events of the first day that he was released from gaol than one who has no other remarkable event by which to recall his activity. It is, however, a matter for the defence whether they seek to raise that as an issue at the trial. I am now dealing with an objection that has been taken to the reception of this evidence in the evidence–in–chief of Sergeant Blue and any other relevant police witness.
In my opinion, the objection is soundly based. Any evidence of prior sentences, whether for fines or other offences, can be prejudicial to an accused person. Therefore, care must be taken to exclude any unnecessary references of this kind. As will be seen from later discussion, this is not the only area in which this kind of problem arises, but in relation to this specific objection, I rule that the evidence may not be admitted as its potential for prejudice outweighs its probative value.
During the course of the same discussion between Detective Sergeant Blue and the accused on 30 July 1987, Sergeant Blue referred to an incident that had occurred at the Royal Hobart Hospital earlier that day, where the accused had been taken by Detective Sergeant Paul Gray for the purpose of obtaining a blood sample pursuant to s.6 of the Criminal Process (Identification and Search Procedures) Act 1976 after the accused had been interviewed and charged in relation to an unconnected case of rape. In connection with that offence, the accused had been introduced to Dr Carol Lance at the hospital and he had been asked by her if he consented to the taking of a blood sample. He had given consent to that procedure but whilst Dr Lance was preparing the necessary equipment, Sergeant Gray, who had remained in the cubicle at the hospital with the accused, said to him, "have the Bellerive fellows spoken to you about Shirley Burgess' murder". The accused replied, "No" and then lay down upon the bed in the cubicle and appeared to become distressed. When Dr Lance returned to the cubicle, Brown told her that he was not going to allow a blood sample to be taken and he continued to protest vehemently against this being done. Dr Lance, exhibiting, in my opinion, a somewhat self indulgent attitude to the taking of blood from a patient under force, an attitude which is apparently shared by a number of her colleagues at this hospital, declined to take a sample of the accused's blood without his consent. The accused then left the hospital in the company of police officers and shortly thereafter in Liverpool Street, broke loose and escaped. He was recaptured, however, and taken to police headquarters. He was asked by Sergeant Gray, "Why did you take off", and he replied, "I'm guilty, what's the use".
The Crown seeks to lead evidence at the trial of these events and, in light of the questioning of the accused by Sergeant Blue in relation to these events later the same evening, it is appropriate to deal with both matters together. During the course of that questioning the following conversation occurred:
"BLUE:It has made us more suspicious of you because of the way you reacted about taking blood.
BROWN:My body is mine no body else can take bits out of it it's my body. No, why should I let you take blood from out of it?
BLUE:Why then did you originally agree at the hospital to taking blood and then refuse.
BROWN:My blood's sacred, nobody's taking my blood."
The Crown seeks to lead this evidence on the basis that it is an admission by the accused by conduct. He reacted guiltily when Mrs Burgess' murder was mentioned to him and he refused thereafter to allow a blood sample which previously he had been willing to provide. Counsel for the defence suggests that the reaction is equivocal and that it could arise from the accused's awareness of a legal right that he had to refuse to give blood, if he believed that it may be used in relation to the Burgess murder, because he was not then liable to provide a sample of blood for that purpose under the provisions of the Criminal Process (Identification and Search Procedures) Act 1976. (Hereafter I shall refer to that Act simply as the Criminal Process Act). I do not accept this submission because, in my opinion, the weight and effect of the evidence is appropriately a matter for a jury, but in the exercise of my discretion, I am of the opinion that the evidence should be excluded because it is impossible, I think, to keep from the jury, without distorting the effect of the evidence, the fact that the accused was in police custody in respect of other alleged criminal activity at the relevant time. Accordingly, it is my opinion that the evidence of both Sergeant Gray and Dr Lance as to the events at the hospital and the evidence of Sergeant Blue as to these questions and the accused's answers in respect thereof, should be excluded from the jury. The probative value is again outweighed by a real potential for unfair prejudice.
At approximately 9.10am on Thursday 30 June 1988, Detective Sergeant Blue and Detective Sergeant Gillie attended the hospital at Her Majesty's Prison at Risdon. The accused was brought to the hospital where a room was made available by gaol authorities for the purpose of the police interviewing him. I have no grounds for thinking that even if the accused believed he was under some form of compulsion to attend for that purpose, he thought that he was obliged to co–operate with the police enquiries. Indeed, after he was introduced to the two police officers, Sergeant Blue said to him:
"Sergeant Gillie is writing down what we are both saying. I know that you speak quickly, can you watch his hand writing. Also I would like to tell you that we will be handing you these notes to read at the conclusion of the interview".
The accused replied, "Don't expect me to sign it. I don't sign nothing".
Sergeant Blue said, "We're here to talk to you about the murder of Shirley Burgess and before I go any further ...". and he was then interrupted by the accused saying to him, "I know all that shit. I don't have to say anything to yous if I don't want to. Right". Sergeant Blue had intended giving the accused the normal police warning prior to that interruption. However, once the accused had responded in the way which I have just stated, Sergeant Blue took the warning no further and commenced to question the accused about his memory of the earlier interview on 30 July 1987. It is submitted that what followed thereafter should not be admitted before the jury because the police were in breach of the Judges' Rules in that they did not give the accused the standard warning as to his rights. Mr Gunson at first seemed to be suggesting that the ensuing conversation was not voluntary, but it was subsequently made clear that it is contended that I should exclude the evidence in the exercise of my discretion. However I reject this submission. In my opinion it is plain from the accused's interruption, that he was aware of the substance of his legal right to remain silent. He had already been told that what was being said was being noted down and he had responded by saying, "Don't expect me to sign it. I don't sign nothing", which, of itself, is evidence from which one may suspect or infer a familiarity with police interrogation. He had not been told that anything he was to say may be used in evidence during the course of subsequent legal proceedings. However, as already mentioned, the accused did not give evidence on the voir dire to suggest that he had any misapprehension about that matter. There was also evidence before me that the accused had been warned by the police on several occasions prior to this interview, albeit at some time well in the past, and I regard it as unlikely in the extreme that he had any misconception as to the prospect of the police giving evidence of the conversation which was about to take place if he was charged. It is not without significance that when he was cautioned by Sergeant Gray on 30 July 1987 he had replied, "I fucking know that", or words to a similar effect. In my opinion this is a clear case in which the discretion to exclude should not be exercised. I propose to allow the evidence of the conversation which followed thereafter.
In the course of that conversation the accused was shown a photostat copy of a two page letter which he had apparently written to his sister Carol from the gaol on 28 September 1987. The letter is written on prison note paper which bears the imprint at the top "Her Majesty's Prison, Risdon, Tasmania". At the bottom of the second page there are directions to prisoners as to the nature of correspondence which they may undertake and visiting rights. It may be possible to cover these aspects of the document, but the contents of the document itself make it plain that the accused is writing from the gaol. There is in my opinion no way in which this fact can be kept from the jury without distorting the contents of the document. Accordingly the question arises whether the document should be admitted into evidence over the objection of the defence.
The Crown proposes calling the accused's sister Carol to prove that she received the letter from the accused and to say that she was not with the accused on the night of the murder. In short, she will apparently deny the alibi which the Crown contends the accused was seeking to set up in the letter which he wrote to her. It is clear, I think, that she can give evidence that she was not in the accused's company on the night of the murder. Such evidence appears to me to be relevant and admissible even in the absence of a positive indication during the trial that the accused now intends to rely on such an alibi. The cases dealing with the subject make it clear that the Crown should call evidence such as this as part of its case in chief and cannot, and should not normally, wait to see if the alibi is set up in fact and then call the contradictory evidence in rebuttal. In most cases it would not be entitled to do this.
Furthermore, I think that Carol can say that she received a letter from the accused and as a result spoke to him. However, I am of the opinion that because of the factors I have already mentioned and the possible prejudice to the accused resulting therefrom, the letter itself should not be tendered in evidence at this stage in the trial and should not be tendered later unless the conduct of the defence case creates a situation in which that course becomes appropriate.
Later on during the course of the interview, Sergeant Gillie asked the accused:
"Do you recall me speaking with you about the rumours that were circulating around Risdon Prison and within the Aboriginal community that you were the person responsible for killing Shirley Burgess?
"BROWN:I can remember but what's the big deal I have nothing to worry about".
In my opinion the relevance of this question and the answer is very doubtful. In any event, the answer is non–committal yet the question itself is highly prejudicial in form. In my opinion, this evidence should be excluded and accordingly, I do so. Later on in the interview Sergeant Blue said to the accused:
"A post mortem examination of Mrs Burgess' body has been undertaken a scientific examination of semen – do you know what semen is?
BROWN:Yeah I know what semen is.
BLUE:This examination has revealed that you are the person who deposited semen on Mrs Burgess' body.
BROWN:You can't get me for something that wasn't me right?
BLUE:There is scientific evidence which proves the same as fingerprint evidence that you could be the only person who could leave the semen there.
BROWN:You're wrong, fucking wrong the fucking scientist is wrong he can say what he fucking well likes cause it weren't me I've got witnesses to say where I was that night right.
BLUE:Who are these witnesses then?
BROWN:I can tell you I was with Carol that night. Right?"
The defence submits that what follows thereafter should be excluded, because in putting to the accused the scientific material upon which the allegation of his identity was based, Sergeant Blue exaggerated the effect of that evidence and that consequently the accused's responses, not only to that but to subsequent questions, were likely to be coloured by that false information. Mr Gunson provided helpful reference to two South Australian decisions, R v Sharp (1984) 33 SASR 366 and T v Waye, (1983) 35 SASR 247. I think that Sergeant Blue over simplified and indeed, based on the material that he then had, possibly tended to exaggerate the effect of the scientific evidence. Of course, I have now heard evidence from scientists concerning this type of evidence and, on the basis of subsequent tests of the accused's blood, it would be open, I think, to the jury to accept that the effect of that evidence is as suggested by Sergeant Blue in the course of the interview. In other words, the jury could well accept that the DNA testing provides a sound foundation for concluding that the accused and the murderer are one and the same. However, that conclusion could only arise from the comparative tests performed with the semen from Mrs Burgess' body and the blood sample taken from the accused at the conclusion of the interview now in question.
The material upon which Sergeant Blue formed his opinion as to the efficacy of the tests and the conclusiveness of those tests, was referred to in the evidence. He said that he had had a conversation with Dr Cawood, the scientific expert, and that he was made aware of the contents of a letter from Cellmark Laboratories to Mr Presser concerning tests which had been run with the semen and the accused's blood taken in connection with the earlier rape case. He also had access to and had studied unspecified scientific literature on the subject. He was entitled to conclude, I think, that the scientific tests conducted by Cellmark, if not conclusive were very strong and cogent evidence of the accused's guilt, but as I have already said, I think he tended to overstate the value of the tests which had taken place prior to the interview in question.
However, in my opinion, any overstatement made was minimal, and Sergeant Blue's overestimate of the value of the tests taken at that time and the opinions which he expressed to the accused, do not, in my opinion, amount to a misrepresentation of fact or a deception which would necessarily require the exclusion of the questioning of the accused which followed thereafter. I accept that Sergeant Blue genuinely believed that the available evidence had overwhelmingly strong probative value as to the accused's guilt. On the other hand, as the expression of that opinion depends in part upon evidence of the earlier blood sample which is not admissible on this trial, (as I am currently advised) and as it to some extent involves an over confidence in the value of those tests, I think it is necessary to consider as a separate issue, whether the passage of evidence referred to above should be excluded from the jury. I should say that it is plain I think, on the evidence before me that the accused was not taken off guard and was not induced to "cave in" and make a full confession thereafter on the basis of what was said to him about the scientific evidence, when one considers the emphatic response that he made to that allegation. Plainly he was capable of denying the validity of any such scientific material and did so. Furthermore, shortly thereafter he said to the police:
"Yous got it right, you know, when yous first asked me for my blood, right? Yous got my blood alright. I knew I was gone, I mean that's alright. I mean I know – I mean it was an invasion of my body. I know what yous do it for it was so long when yous came over I thought that would be it then."
The significance of this passage appears to me to be that it tends to suggest that Sergeant Blue's revelation to the accused did not come as a complete surprise to him and that he was already conscious that scientific tests upon his blood would provide substantial evidence of his guilt. There is nothing in the evidence given on the voir dire which would induce me to think that the accused confessed, much less untruly confessed, to murder in consequence of police exaggeration.
The accused's first confession of having killed Mrs Burgess occurred between the two passages of evidence which I have referred to above, but this was apparently in immediate response to being shown the alleged murder weapon, a broken biscuit barrel which had been reconstructed by the police. In the absence of evidence by the accused to the contrary the material above does not suggest to me that the accused was improperly or even inadvertently induced or tricked into making a confession, although I can see how the defence may seek to use such material for the purpose of suggesting this to the jury in the course of the trial. That, however, is up to them. My current task is to exercise a discretion as to whether or not this material should be admitted in the course of the prosecution case. The factors which I should bear in mind and the relative weight and value which may be accorded to competing considerations are most usefully collected and discussed by Brennan J in Duke's case (1988) 83 ALR 650 at pp652–654 to which I was referred by Mr Gunson yesterday morning. Mr Gunson tended to flirt again, I think, with the suggestion that the accused's statements were involuntary but insofar as it is a live issue requiring my ruling I reject this. I also reject the submission that the confession was the product of unfairness or that it would be unfair in the broad sense to use it for the purposes of this trial. I am of the view that the questions and answers referred to do not taint the prosecution's evidence of an alleged confession so as to render that confession inadmissible, but I am also of the view that the questions and answers themselves, containing as they do an assertion of Sergeant Blue's view of the evidence which may amount to an over simplification of scientific opinion, and pointing also to an otherwise unexplained taking of blood by the police on an earlier occasion which may invite jury speculation, those passages which I have referred to should be excluded. Sergeants Blue and Gillie will be permitted to say that a reference was made to scientific tests but no more. They may not give details of those questions or the accused's responses thereto unless this is pursued in cross–examination. I permit this compendious reference to what occurred so that the circumstances of the accused's alleged confession are not unnecessarily distorted by an excision of the actual dialogue. I have considered this matter at some length and with some care, but I am unable to see that the matter of the scientific evidence may be dealt with in a better way to preserve the context of the ensuing admissions without misleading the jury about what occurred. I will however, hear defence counsel further on this issue if they wish to suggest an alternative form of words which should be used. The police officers will also be permitted to say that the accused told them, "You can't get me for something that wasn't me", and that he said, "I've got witnesses to say where I was that night, right". Sergeant Blue's response, "Who are these witnesses then?", and the accused's reply, "I can tell you I was with Carol that night" will also be admitted. The police will also be permitted to say that after the accused was given a cigarette, he said, "What have I done, my sister", as this appears to me to be a quite separate reaction from what followed thereafter in connection with the scientific evidence when he referred to the taking of his blood on the earlier occasion and what he expected it to yield by way of evidence against him. In my opinion, the only satisfactory way to deal with that part of his response is to delete it altogether from the evidence–in–chief of both police officers. In other respects evidence of the interview from and after the point at which Sergeant Blue asked Sergeant Gillie for the biscuit barrel will be admitted.
The defence has also objected to evidence being given of the sampling of the accused's blood which took place at the prison hospital shortly after the conclusion of the foregoing interview and after he had been arrested and charged with Mrs Burgess' murder. I should say that despite some unsatisfactory evidence from Sergeant Blue as to this, I find that the accused was, in fact, placed under arrest and charge with that murder, and that in consequence, he was liable to provide a sample of his blood under the provisions of the Criminal Process Act. On the basis of that finding, as I understand Mr Gunson to concede, he could not normally object to the admission into evidence of the taking of the blood sample (and the subsequent results of tests thereon) provided proper statutory procedures had been observed in doing so. However, he submits that in accordance with a discretion of the kind debated in Bunning v Cross and subsequent cases, I should exclude evidence of that blood sample. The sample was taken by a male nurse, Mr Frederick Campton, who is experienced in this procedure. However, no medical practitioner gave Mr Campton directions as to the taking of this sample and of course, no medical practitioner himself took the sample. Upon the basis of the evidence given it cannot be accepted, in my opinion, that the accused gave an informed or unfettered consent to Mr Campton taking his blood so as to make that sample admissible in evidence independently of the provisions of the Criminal Process Act. It was understood by other police officers present, and in my opinion in all probability by the accused himself, that when he submitted to the blood test he believed he was obliged to do so pursuant to the provisions of the Act. This belief was not displaced by Sergeant Gillie asking him, "Will you consent to have a sample of your blood taken at the prison hospital?" and his responding affirmatively to that question. As Mr Gunson also pointed out he was not asked if he consented to a sample being taken by a male nurse in the absence of a medical practitioner. I must, therefore, determine whether the sample which I think was clearly taken in breach of the Criminal Process Act should be received into evidence.
In my opinion, there is nothing to suggest "unfairness" to the accused in the sense in which that term is used in the cases in the procedure which was adopted. There is no doubt that the accused was liable to have a sample taken by a qualified medical practitioner or some qualified person acting under the practitioner's directions. Mr Campton would have been an appropriate person and one qualified in the terms of the Act to take a sample of blood, had he done so at the direction of a doctor. In a number of the learned articles that I have consulted in considering the admissibility of the DNA evidence, discussions have taken place as to the taking of blood samples against the will of a suspect, and it is perhaps not inappropriate to quote from a case of Schmerber a decision of the United States Supreme Court where the observation was made by the court "that the experience with blood tests teaches us that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk trauma or pain." Another article suggests, "Few people pass through life without having blood taken for some routine purpose". The procedure now in question was one which was conducted in a hospital environment, without violence and in accordance with accepted medical practice.
The police asked whether the accused consented to the procedure at the hospital for two reasons, in my opinion. Firstly, the prison hospital was the very place at which the interview had taken place and its facilities were available and plainly convenient for the purpose required and secondly, it was suspected that medical practitioners at the Royal Hobart Hospital may not be co–operative with the police if samples were required to be taken by force. There was nothing in my opinion to suggest that the police were deliberately and with contemptuous disregard for the law, embarking upon a procedure which they knew to be illegal. In my opinion what they did, they did in good faith and there was no unfairness to the accused. There is also no reason to suspect that the sample was not taken in accordance with proper methods and I can see no basis on which to exercise a discretion to exclude the sample taken on the ground of "unfairness" alone. However, the taking of the blood sample was plainly unlawful in the sense in which that term has been used in the decided cases in that it was not taken in strict compliance with the Civil Process Act and "unlawfulness" in itself may, in some exceptional circumstances, justify the exercise of a judicial discretion to exclude such evidence.
The learned Crown prosecutor also urged upon me that the blood sampling evidence was of crucial importance to the prosecution case. Having regard to the results of the tests conducted with that sample, I would have little doubt that this is so provided of course that those tests are themselves admissible in evidence.
Mr Gunson and Mr Curtis suggest that for a number of reasons the DNA tests and their results are not admissible and for the purpose of examining this submission, evidence was taken from Dr Cawood and Mr Webb, two British experts in this field, as to the procedures which they performed to compare the semen taken from Mrs Burgess' body and the accused's blood sample. A number of objections were raised to the admissibility of this evidence. Firstly, it was contended that the testing procedures and the results obtained therefrom were novel procedures which had not gained general acceptance within the relevant scientific community. Reliance was placed upon the principles to be distilled in the case of Frye v The United States (1923) 293 F 1013. That decision has been discussed in a number of Australian cases but it would not be correct to say that it has been uncritically adopted in this Country. Furthermore, it has been subject to recent criticism, both in the United States and in other jurisdictions. See for example The Queen v Doe (1987) 31 CCC (3d) p353 which has a very useful discussion of the principle undertaken by Kurisko DCJ at p362 et seq. The Frye decision and the Australian cases in which it has been discussed, have been analysed and reviewed by Mr Ian Freckelton in a paper delivered by him entitled, "DNA Profiling, Forensic Science Under the Microscope" at a conference on "DNA and Criminal Justice", conducted under the auspices of the Australian Institute of Criminology on 30–31 October 1989 in Canberra. This paper, which is very helpful, has been published in an amended form in (1990) 14 Crim LJ at p23. It is also worth noting however, that the Australian Law Reform Commission in its report on Evidence 1987 (at pp82–84) did not recommend, and felt that it could not recommend, in favour of the adoption of the Frye test in this Country. The highwater mark of the acceptance of Frye appears to me to be in the judgment of Maurice J in Lewis (1987) 29 A Crim R 267 at pp269–271.
I do not think that it is for me as a trial judge ruling upon a matter of admissibility of evidence during the course of a criminal trial, to embark upon a detailed analysis of the Frye decision and its applicability or otherwise to expert evidence tendered in this State unless that course is necessary to determine the issue which is before me. I therefore content myself by saying that even in accord with the Frye doctrine, I think the evidence sought to be led in this case falls within its stringent criteria. It has not been suggested that any more rigorous criteria should apply in this jurisdiction.
Dr Cawood gave evidence of the origin and nature of DNA testing by the scientific community throughout the world. There was also evidence of the acceptance of the procedure by the scientific community generally and its utilisation by investigative and law enforcement bodies involved in the criminal justice system. Whilst it is true that the procedure is relatively recent, having first been developed in the mid 1980s, it can no longer be regarded as a novel or experimental system, nor can the tests carried out in 1987 and 1988 in relation to this case be regarded as unacceptable. Both Dr Cawood and Mr Webb are experienced academically and in the day to day practice of the technique. The were also practised in that technique and had familiarity with the theory of the procedure at the time the tests were run.
There can be no doubt, of course, that the reliability of test results may vary from case to case, depending upon the reliability of the operator and the adherence to appropriate protocols and techniques. It is also plain that the conclusiveness of the tests may be questioned in individual cases depending upon such things as the measurement of the DNA samples for channelling purposes, imperfections in the nylon screening, double readings from different probes and so on, all of which factors were explored competently and in detail by defence counsel in the cross–examination of Dr Cawood and Mr Webb in the current case. These matters may affect the weight of the evidence in any individual case and indeed, so effect that weight, that a trial judge in his discretion would rule the evidence inadmissible as having little or no probative value. But such is not my conclusion in the present instance. In my opinion, Dr Cawood explained the apparent minor anomalies in the autoradiographs which recorded the results of the test procedures carried out by Cellmark in a completely satisfactory and persuasive manner. Defence counsel referred me to the case of The People of The State of New York v Joseph Castro as illustrative of the way in which other courts have rejected DNA evidence in the past. However, it is of some possible significance to note that the validity and reliability of the DNA testing procedure for forensic purposes if properly performed was taken in that case as being quite clear. It was essentially the flawed testing procedure which led to the rejection of the DNA test results in Castro and I do not regard that case as providing a foundation for rejecting the evidence in the present trial.
There is no evidence which has been led before me on the voir dire to cause me to doubt the testing protocols and procedures adopted by Cellmark, or to suggest that those protocols and procedures were not carried out in all significant and relevant respects by Dr Cawood and Mr Webb in relation to the matters now before me. There is no need for me to reproduce the scientific basis for the DNA testing procedures used by Dr Cawood and Mr Webb, nor is there any need for me to reproduce in detail those procedures themselves. Complex they may have been, but in my opinion, they were not complicated. They were capable of being explained and were explained in such a way that in my opinion a reasonable jury man or woman would understand the evidence being given. It is also of relevance to note that it appears that some of the intermediate steps taken in the test protocols have been recognised within the scientific community as reliable procedures for many years.
No doubt, the Crown must be careful to ensure that the jury understands how the bands on the autoradiographs can be utilised to provide a visual representation of the unique sequence of genetic information that exists in an individual's cells and to this end they must be very careful to ensure that the relevant witness explains the scientific basis and the purpose and logical relevance of each step in the process taken, rather than simply asking for a description of the process itself when the matter comes before the jury.
Although I was not addressed in detail as to this, it was apparent from the cross–examination of Dr Cawood that the defence was challenging the statistical basis for the expert's opinion as to the improbability of chance matching. However, in my opinion, this was satisfactorily explained and demonstrated by Dr Cawood, not only by his mathematical equation, but also by the statistical material to which he referred in the course of explaining his conclusions. In my opinion, the evidence of Dr Cawood and Mr Webb is admissible, or I should say prima facie admissible, and relevant and capable of having high probative value. The DNA testing procedure, whilst recent in origin, is not novel or untried nor does it lack acceptance within the scientific community. In my opinion, the challenged evidence is of such a quality as to be admissible.
Against this background discussion as to the significance and prima facie admissibility of the DNA evidence in the prosecution case, I return finally to the question of how I should exercise my discretion in accordance with the principles discussed by the High Court in Ireland's case, Bunning v Cross and Cleland and whether or not I should allow the evidence to be given in light of the circumstances attending the taking of the blood sample.
There is no sustainable suggestion that the blood sample was obtained by a false representation, trick, threat or bribe or that the accused's apparent consent was improperly obtained to a procedure which the police could not otherwise have conducted but, as Deane J put it in Cleland, "it is not whether the accused was treated unfairly it is whether the reception of evidence would be unfair to him" (at p18). I have discussed other aspects of unfairness in the Lee sense or the Bunning v Cross context, I am unable to see unfairness to the accused in the Crown eliciting evidence of the taking of the blood sample or the subsequent tests conducted thereon.
As I have already said I think that the blood sample was obtained in breach of the Criminal Process Act but I accept that this was not a deliberate and flagrant attempt by the police to override the accused's rights and did not involve "overt defiance of the will of the legislature or calculated disregard of the common law". I also accept that the reception of the evidence thus provided does not "demean the court as a tribunal whose concern is in upholding the law". For those two references I cite the judgment of Stephen and Aickin JJ, in Bunning v Cross 19 ALR at p661. There is no general rule that evidence, even if illegally obtained, will be rejected, see for example, Cleland v The Queen (1982) 151 CLR at 9, per Gibbs CJ; and in my opinion there are no substantial grounds based on public policy or otherwise why the evidence of the taking of the blood and the DNA profiling tests based thereon should be rejected in this case.
Mr Gunson may be correct when he says to me that the Crown may have other evidence based upon further blood samples which appear to have been properly taken by a medical practitioner, Dr Lopes so that, to use the words of King CJ in Waye's case (supra):
"The exclusion of the confession in the present case will not result in the release on the public of the perpetrator of a monstrous crime or of a person who has shown himself to be a dangerous criminal".
But I have not had the opportunity of considering that evidence and its possible weight or implication. However it does seem to me on a discrete analysis of the material presently before me that the evidence which the Crown seeks to introduce is of great importance and relevance to its case in relation to an alleged crime of very considerable gravity indeed.
I therefore propose to exercise my discretion in favour of admitting the challenged evidence as to the taking of the blood sample and its subsequent scientific analysis. I should simply add that I do not consider that there will be any prejudice or disadvantage to the accused in that evidence being given if reference is made to the accused being present at the gaol hospital at the time when the blood sample was taken from him. Obviously, he had been arrested and charged at the time when that sample was taken, and consequently, unless there is any specific submission to that effect, I do not intend to prevent the police from referring to the place at which that test was taken during the course of their evidence.