Jamieson v Attorney General for NSW

Comment

1. It is not in question that Ms Balding was killed in terrible circumstances. The crime attracted extraordinary publicity. It caused great distress to her family and friends, as well as to the community in general. It is therefore important to recognise that these legal proceedings have the regrettable and unavoidable potential to revive unpleasant memories for very many people. However, it is also critical to ensure that any criminal conviction is based on reliable evidence and that the rights of all accused are protected throughout the judicial process.
2. Four people were convicted of crimes following Ms Balding's death. One of them was Mr Jamieson. It is well known that police recovered a bandana from the scene of this crime. It yielded viable DNA material. As will emerge in more detail later in these reasons, none of those convicted of Ms Balding's murder, including Mr Jamieson, was a contributor to the DNA on that item. That fact achieves potential significance in the following circumstances.
3. Mr Jamieson maintains that he was not present when Ms Balding was killed. Mr Jamieson is of small stature and went by the nickname "Shorty". He used to wear a bandana. An acquaintance of the convicted men was Mr Wells. He is of short stature, used to wear a bandana and also went by the nickname "Shorty". Unlike those convicted of Ms Balding's murder, Mr Wells has not been excluded as a contributor to the DNA on the bandana. That is so notwithstanding the fact that his DNA is physically available for comparison. The issue in these proceedings concerns the legal availability of that material.
4. It is sufficient for present introductory purposes to note that Mr Jamieson has always professed his innocence. Part of the material upon which he wishes to rely in seeking an inquiry into his conviction, should it become available, is the result of any comparison between Mr Wells' DNA and that on the bandana. Mr Jamieson accepts that any finding that it is Mr Wells' DNA on the bandana will not by itself exculpate him for the murder of Ms Balding. However, Mr Jamieson maintains that it may, when marshalled with other evidence, give rise to a doubt or question as to his guilt. Such other evidence upon which Mr Jamieson wishes to rely includes, but is not limited to, the testimony of his co-accused who all say he was not present when the crime was committed, expert linguistic analysis of the "confession" given by him to police and an examination of the circumstances under which it is said to have been made. Mr Jamieson accepts, if Mr Wells were to be excluded as a contributor to the DNA on the bandana, that such a finding would not assist him in his quest for an inquiry into his conviction.
5. Mr Jamieson's present application for an inquiry should therefore be understood to be advanced on the basis that it ought to appear to the Court that there is a doubt or question as to his guilt or as to a part of the evidence in the case because: (a) a partial weak male DNA profile which did not originate from him has been recovered from the bandana; and (b) that DNA profile has not been compared to Mr Wells' DNA profile, such that there is the as yet unanswered question of whether Mr Wells might be inculpated by such a comparison.

Nature of application for an inquiry

1. Unlike Mr Jamieson's original summons proceedings, his application for an inquiry is not a judicial proceeding. Such an application is to be determined by the Chief Justice or a Judge authorised by the Chief Justice, acting non-judicially. As the Court of Appeal concluded in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [7], an application for an inquiry "cannot constitute part of the jurisdiction of the Court invoked by summons". Insofar as Mr Jamieson sought an inquiry by his summons (and/or amended summons), that process was incompetent. It is nevertheless open to the Court to treat any material relied upon in the summons proceedings as an application under s 78(1). The Crown maintains that the judicial proceedings initiated by the summons ought to be dismissed. That would be analogous to the course taken by Basten JA in Dacich v Director of Public Prosecutions [2020] NSWSC 1179. If the summons proceedings are to be treated as an application for an inquiry, no judicial proceeding should remain pending in the jurisdiction of the Court, as the relief there sought is either no longer sought or, for the reasons canvassed in the summons proceedings, cannot be granted.
2. Whether any steps similar to those sought in the amended summons would be taken in an inquiry if directed would be a matter to be determined by the judicial officer conducting the inquiry by reference to the provisions of Division 4 of Part 7 of the Crimes (Appeal and Review) Act.
3. The Court is required to dismiss an application for an inquiry unless satisfied of the condition in s 79(2), namely that "it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". As explained in the joint judgment in Attorney-General (Cth) v Huynh [2023] HCA 13: "Read with s 79(2) and (3), s 79(1) can be seen to be enlivened where the Chief Justice or an authorised judge, having chosen to consider an application made by or on behalf of a convicted person under s 78(1), entertains a doubt or thinks there to be a question as to the convicted person's guilt or as to mitigating circumstances in the case or evidence in the case. Where s 79(1) is so enlivened, two distinct and alternative courses of action are open to the Chief Justice or the authorised judge under the terms of that provision. In choosing whether or not to pursue either course of action, the Chief Justice or authorised judge performs what Basten JA aptly described in the Court of Appeal as a 'gateway function'."
4. Speaking generally, it may "appear" to the Court that "there is a doubt or question" by reference to matters of fact or evidence, errors of law or "any other matter upon which a finding of guilt is dependent". While the possibly relevant considerations are broad, s 79(2) requires that the material in support of the application gives rise "as a matter of practical reality" to the appearance of a doubt or question. The doubt or question may relate (relevantly) to guilt or "to any part of the evidence in the case". In relation to the latter kind of doubt or question, McCallum JA (with whom Meagher JA agreed) observed in GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179 at [130] that: "…the section is concerned with the soundness of the conviction (or sentence). The statute does not confer an entitlement to an inquiry, only an entitlement to seek one. Where the application relies on new evidence said to give rise to the appearance of doubt as to the evidence in the case, some evaluative judgment must be undertaken as to the cogency of the matters relied upon and their materiality to the soundness of the conviction."
5. In the present context, Mr Jamieson maintains that "as a matter of practical reality" the fact that no comparison between the DNA on the bandana and Mr Wells' DNA has ever been conducted, when considered with other evidence, gives, or has the potential to give, rise to a doubt or question as to his guilt.

Notice of motion

1. In the light of these matters, Mr Jamieson filed a notice of motion returnable before me on 13 December 2024 in which he relevantly sought the following relief: 1. Pursuant to s 97 of the Crimes (Appeal and Review) Act 2001 an order that the Commissioner of Police, by 5pm on 16 December 2024, comply with Mr Jamieson's request dated 5 November 2024 to: 1. arrange for any biological material comprising reference samples from Mark Wayne Wells be sent to the NSW Forensic and Analytical Science Service for DNA testing; 2. arrange for the testing of the biological samples from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Ms Franco's statement dated 30 November 2023 against the DNA profile of Mr Wells, and 3. as soon as reasonably practicable after such testing, forward to Legal Aid NSW, on behalf of Mr Jamieson, the results of the testing referred to at (a) and (b) above including the documents and data on the Forensic & Analytical Science Service file. 1. An order that the Commissioner of Police, by 5pm on 16 December 2024, comply with any of Mr Jamieson's other requests dated 5 November 2024 in respect of which the Commissioner has not, by 5pm on 29 November 2024, provided written confirmation that: 1. The requested arrangements for testing have been made; and 2. The requested information will be provided.
2. Before proceeding further, I note that the parties are agreed that I should in due course make, in lieu of the terms of order 2, an order in the following terms: An order that the results of the DNA testing of biological material from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Michele Franco's certificate dated 30 November 2023, comprising (a) the Certificate/s of Analysis; (b) the graphical representations of the DNA profiles (including in electronic form); and (c) statistical interpretations, being the comparisons that were made along with their statistical significance (if any) be provided to Mr Jamieson, subject to any redactions necessary to comply with s 97(8)(a) of the Crimes (Appeal and Review) Act 2001 except for the identity of a person convicted of the offences against Janine Balding (being Stephen Jamieson, Bronson Blessington, Matthew Elliott and Wayne Wilmot).

Issues for determination

1. The parties are agreed that at least the following issues, with varying degrees of difficulty and significance, arise for determination in these circumstances: 1. Whether s 97 of the Crimes (Forensic Procedures) Act 2000 precludes the NSW Forensic & Analytical Science Service from using information about Mr Wells' DNA for the purpose of DNA testing under s 97 of the Crimes (Appeal and Review) Act. 2. Whether s 97 of the Crimes (Appeal and Review) Act applies to Mr Wells' DNA information held by the Commissioner of Police. 3. Whether the testing sought by Mr Jamieson "of the biological samples from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Ms Franco's statement dated 30 November 2023 against the DNA profile of Mr Wells" involves "DNA testing" of "retained biological material" in the terms of s 97 of Crimes (Appeal and Review) Act. 4. Whether s 97(8)(a) of the Crimes (Appeal and Review) Act precludes the Commissioner of Police from providing Mr Jamieson with information of "results" relating to individuals other than him. 5. If the answer to 1 above is "no" and the answer to 2 and 3 is "yes", whether the Court should make a compliance order under s 97(5) of the Crimes (Appeal and Review) Act.

Procedural history

1. It is instructive before continuing to review the procedural history of Mr Jamieson's trial and the subsequent proceedings that they spawned. The following summary is taken from the very helpful submissions provided by the Crown on 8 May 2024. None of the matters referred to in the summary is relevantly disputed for the purposes of the present application.

The trial

1. Mr Jamieson was first presented for trial in September 1989. He stood trial with Matthew Elliott and Bronson Blessington. Two other co-offenders, Wayne Wilmot and Carol Arrow, were dealt with in separate proceedings. Mr Jamieson maintained his innocence.
2. An issue arose in the course of the trial as to whether Mr Jamieson had been mistaken for Mr Wells and, thus, wrongly identified amongst the group responsible for the abduction, sexual assault and murder of Ms Balding. As already noted, both Mr Jamieson and Mr Wells were known as "Shorty" at the time. Justice Wood found that, prior to the close of the Crown case, there had been no reason for the Crown to suspect that the wrong Shorty had been identified or to investigate Mr Wells further. However, after Mr Blessington gave evidence inculpating Mr Wells, efforts were made to locate him. An interview occurred on 18 October 1989 during which Mr Wells admitted his presence at the scene but made certain allegations against Mr Jamieson. On 20 October 1989, counsel appearing on behalf of Mr Wells indicated that Mr Wells would claim the privilege against self-incrimination if called to give evidence. Given the lateness with which these events unfolded (after the close of the cases for the offenders), Wood J discharged the jury on 23 October 1989.
3. A second trial commenced on 24 May 1990 before Newman J. As described further below, the Crown case against Mr Jamieson relied on admissions made by him in an interview with police on 22 September 1988 and to another inmate, and on identification evidence. The DNA evidence at trial did not inculpate Mr Jamieson. Only Mr Blessington's DNA was identified when swabs taken from Ms Balding were tested. Mr Jamieson gave evidence, as did his co-offenders, that he was not the "Shorty" involved in the offences. In the defence case, Mr Jamieson's counsel called Mr Wells and Mr Wells denied his involvement in the offences.
4. The evidence at the trial that related to the identification of "Shorty" was as follows.

Admissions to police

1. Mr Jamieson was arrested by police in Queensland on 22 September 1988. He participated in a record of interview that was tendered in the form of a transcript as an exhibit at the trial. There was no video recording. The interview was conducted by Detective Chief Inspector Raue and Detective Senior Sergeant Carroll. In the record of interview, Mr Jamieson admitted to being present amongst the group and to sexually assaulting Ms Balding. He described abducting her at knife-point from Sutherland and said it was "Matthew's plan". He said that, after Ms Balding was sexually assaulted near the car once it had stopped, he obtained some rope; Ms Balding was tied up and gagged; and Mr Elliott and Mr Wilmot took her to a dam in the paddock near the road. The record of interview was signed by Mr Jamieson in the presence of a justice of the peace, who gave evidence that he read through the record of interview with Mr Jamieson slowly and clearly.
2. Detective Senior Sergeant Carroll gave evidence that he recorded the questions and answers in his official notebook, which were later typed up for Mr Jamieson to sign. Both officers were cross-examined and a key plank of the cross-examination was that the answers recorded in the record of interview had been concocted in order to frame Mr Jamieson. They disagreed with that proposition.
3. Mr Jamieson's evidence at trial was that he did not make the admissions that were recorded in the record of interview. He also led evidence from a psychologist that he suffered a "mental defect" or "mental retardation". The psychologist opined that it was unlikely that Mr Jamieson could have given the kind of lengthy answers contained in the recorded interview.

Admissions to prison informer

1. Witness A gave evidence at the trial in 1989 and died prior to the second trial. His evidence was tendered and read to the jury. Witness A stated that, while in gaol in October 1988, Mr Jamieson told him: "We killed a person … We pulled her over a fence and we dragged her to a creek … I held her underwater". Witness A also recalled Mr Jamieson providing details of the sexual assaults. He said that the date of the conversation in his statement was wrong. Witness A was cross-examined about a history of lying and to the effect that he became aware of Mr Jamieson's name from media reports. Witness A disagreed and maintained his evidence. He denied making up his evidence for the purpose of obtaining favourable treatment when being sentenced for child sexual offences. Mr Jamieson denied ever speaking to Witness A.

Identification evidence

1. Elva Matyas and Andrew Lonergan gave evidence that they had seen Mr Jamieson in the company of the co-offenders. Ms Matyas recalled that, in the afternoon of 8 September 1988, she was travelling by train from Sydney to Mortdale when she observed a group of three or four boys and one girl speaking loudly and saying vulgar things. She heard them discussing going to Cronulla or Sutherland. Ms Matyas became aware of media reports in connection with the trial in 1989 that Mr Jamieson was maintaining that he had been misidentified. She attended the trial (which had adjourned) and was directed to speak to police. She was shown a series of photographs and identified one of Mr Jamieson as looking like a member of the group she had seen on the train. In cross-examination, Ms Matyas accepted that, during a voir dire, she had said she could not positively identify, from the accused males in the dock, the people she saw on the train. Ms Matyas was later recalled to make a dock identification of Mr Wells. She said she did not recognise him. She accepted that he was a similar build and height to the male she saw on the train, but noted that he had a bigger nose.
2. Mr Lonergan gave evidence that he knew Mr Elliot and saw him with three males and a female at Mt Druitt on the day of the offences. He said that when he saw reports of Mr Jamieson's arrest in Queensland, he recognised him as one of the men he had seen with Mr Elliott. When Mr Lonergan attended the police station, he selected a photograph of Mr Jamieson. A photograph of Mr Wells was also included in the photographs shown to Mr Lonergan. Mr Lonergan was re-called to make a dock identification of Mr Wells and gave evidence that he was not the person he had seen with Mr Elliott at Mt Druitt.
3. Detective Chief Inspector Raue was cross-examined about why Mr Jamieson was not required to participate in a line-up for identification purposes. He explained that it was considered unnecessary because of Mr Jamieson's admissions.
4. In the trial judge's summing up, the jury were instructed that identification evidence was to be "treated with very considerable caution". The jury were also instructed that "it is the experience of the criminal law that an identification parade is the best form of identification".

Exculpatory accounts

1. Mr Blessington gave evidence that the "Shorty" he described as committing the offences with Mr Elliott was Mr Wells. He said that he saw Mr Jamieson before the group took the train to Sutherland and that Mr Jamieson said he was going to Coogee to obtain drugs. The Crown drew attention to Mr Blessington's inability readily to identify a photograph of Mr Wells in 1989. There was evidence that Mr Blessington had told his solicitor at the time of the committal hearing that Mr Jamieson was not the relevant "Shorty".
2. Mr Elliott gave evidence that Mr Wells, and not Mr Jamieson, was amongst their group on the train to Sutherland. He said that he saw Mr Jamieson earlier that day and that he said he was going to Coogee with Elizabeth Lopez. Mr Elliott explained that when he had previously told police that a "Scott" was involved in the offences, a number of those references were actually to Shorty, being Mr Wells. He accepted that he referred to "Scott" because he "did not want to put Shorty in" and was trying to protect him.
3. Mr Wilmot gave evidence that Mr Jamieson was not amongst the group on the train from Wynyard to Sutherland and was not involved in the offending. He said that Mr Wells was present, but that he could not recall what he did.
4. Ms Arrow gave evidence that Mr Jamieson was not amongst their group at the time of the offences and that she did not see him that day. She said that Mr Wells was with the group at the time of the offences, but she also accepted that she was "not sure who" Shorty was.
5. Mr Jamieson gave evidence that on 8 September 1988 he saw Mr Wells, Mr Bronson, Mr Elliott, Mr Wilmot and Ms Arrow near Wynyard. He said that he, Ms Lopez and William Rowland went from there to Coogee. Mr Jamieson recalled that they went to the Coogee Bay Hotel and bought marijuana, returned to the city at approximately 2pm and then went to a squat to drink and smoke until approximately 10pm.
6. Mr Rowland gave evidence that he met Mr Jamieson on 8 September 1988 at Wynyard and also saw Mr Blessington, Mr Elliott, Mr Wells, Ms Arrow and Ms Lopez. He said that he, Mr Jamieson and Ms Lopez went to Coogee, returning to continue drinking at his squat in the Rocks. He recalled that Mr Jamieson left after 10pm. The Crown questioned Mr Rowland about having previously told a security officer at a hostel who was enquiring about Mr Jamieson that he (Rowland) departed the company of Mr Jamieson at Wynyard station at 2pm on the day in question. The Crown put to Mr Rowland that if he was with Mr Jamieson that day, they parted ways by 2pm at the latest. Mr Rowland denied this, saying Mr Jamieson left him at 10pm.

Evidence of Mr Wells

1. Mr Wells was called to give evidence by Mr Jamieson's counsel. He said that his nickname was "Shorty". When first asked, "[h]ave you ever heard of a person by the name of Janine Balding", Mr Wells responded: "I don't want to answer any of these questions because they might incriminate me". The Crown then indicated that the Attorney General had provided limited indemnity against prosecution to Mr Wells in respect of his testimony. Mr Wells accepted that he met Mr Elliott and Mr Blessington on 8 September 1988. However, in later questioning he denied being with the group on the night of the murder. Mr Wells was asked about things he had said in his interview with police in 1989. For the most part, Mr Wells denied giving the answers he was recorded as having given during the interview, or said he couldn't remember. He gave evidence that, at the time of the interview, he was affected by marijuana. He also gave evidence that he had been hearing voices telling him to kill people, that he worshipped Satan, and that he had dreamt that a young blonde lady was gagged and drowned. He said that some of the information he gave police in 1989 was from a dream.

Evidence about the bandana

1. A bandana, also described as a black silk scarf, was used to gag Ms Balding and was recovered during the examination of her body. It was admitted in evidence at trial, having been identified by a police officer as "the gag that had been bound around the deceased's face and mouth".
2. Kristine Mobberly gave evidence that she had been approached by the group of co-offenders at Sutherland Railway Station, prior to Ms Balding's arrival. She said that she observed one male wearing "a long black piece of cloth tied around his head". She described this person as having a "real long face", a "bad pot [sic, pock] marked face" and "darkish" shoulder length hair.
3. Mr Elliott gave evidence that "Shorty" tied up Ms Balding and used "a head band kind of thing" to gag her. He confirmed that he was referring to Mr Wells' head-band. Mr Blessington gave evidence that Mr Wells was wearing a head-band. Mr Blessington also said that Mr Wells wore the band around his eyes and the lower part of his mouth. Ms Arrow recalled that one of the people in Ms Balding's car after she was abducted was wearing a "head band".
4. Mr Wells also gave evidence regarding bandanas: "Q. At that stage [in September 1988] did you wear a headband? A. When I was in Goulburn gaol, yes. Q. In September 1988 you were not in gaol were you? A. No. Q. What I want to put to you is you had a headband, you wore a headband, is that possible? A. I think it was a black one too."

Appeal

1. Mr Jamieson appealed against his conviction to the Court of Criminal Appeal on grounds that the Crown's failure to inform him of the indemnity against prosecution provided to Mr Wells occasioned a miscarriage of justice; that he ought to have been tried separately from Mr Elliott and Mr Blessington; that the directions given to the jury regarding the evidence of Ms Arrow and Mr Wilmot occasioned a miscarriage of justice; and that the verdict was unsafe and unsatisfactory.
2. Chief Justice Gleeson (with whom Hope AJA and Lee AJ agreed) described the question of whether Mr Jamieson "was the Shorty who was involved in the abduction and murder of Ms Balding" as "a serious and hard fought issue of fact" at trial. In that regard, his Honour observed that Ms Arrow and Mr Wilmot: "…supported Jamieson's assertion that he was not present on the occasion, but in the course of giving evidence they comprehensively implicated Elliott and Blessington, and gave an account of the relevant events which, if accepted, demonstrated that Ms Balding was sexually assaulted and murdered as a result of the joint conduct of Elliott, Blessington and whoever was the real Shorty. The respective suggestions of Elliott and Blessington that they were present whilst Ms Balding was being sexually assaulted, and bound and gagged, and taken to the dam, and drowned, but had no personal part in the activity, were implausible in the extreme. The only issue of fact that would have been likely to have presented the jury with any difficulty was whether Jamieson was the Shorty who was involved in Ms Balding's murder. There was no dispute that he was an associate of the other four persons involved, or that he went by the name of Shorty. There was also no doubt that there was another person named Shorty Wells. Wells was also a person of small stature, although otherwise he did not look anything like Jamieson. Photographs tendered at the trial made that clear, and, as will appear, the jury had both Jamieson and Wells before them. Jamieson is a person who is of very distinctive facial appearance."
3. The reasoning of Gleeson CJ with respect to the unsafe and unsatisfactory verdict ground, including the matters raised and argued by Mr Jamieson in connection with that ground, was in part as follows: "There was a strong Crown case against the appellant. He confessed in a long and detailed record of interview. There was evidence that he made a further confession to a fellow inmate at a gaol. His photograph was picked out by a witness as one of the group of persons who travelled together on the train to Sutherland. He was identified by another witness as being a member of the group, with Elliott at Mt Druitt, at about the time of the killing. There were, it is true, issues of fact to be considered by the jury in relation to some of that evidence. The fellow inmate at the gaol gave as the date of the confession a date that must have been erroneous. He said this was a mistake. The man who claimed to have seen the appellant as part of a group at Mt Druitt only came forward and spoke to the police in January 1990, and had not given evidence at the first trial. Moreover, there was the circumstance that the co-accused asserted that the police had arrested the wrong Shorty. These were serious matters for the jury to consider. However, an examination of the evidence does not lead me to conclude that the verdict was unsafe or unsatisfactory. There was a particular issue raised at the trial concerning the signed record of interview of Jamieson, and further evidence in relation to the same subject was adduced on the appeal. At p 571 of the transcript, Jamieson admitted, in cross-examination, that it was his signature on the record of interview. He signed every page. However, a psychologist was called to give evidence to the effect that it was unlikely that Jamieson could have given some of the long, detailed answers recorded in the record of interview. An attempt was made on the appeal to take that matter further by 'fresh evidence'. That evidence was principally contained in an affidavit of Mr Lohrey, a research consultant at the Centre for Language and Literacy at the University of Technology in New South Wales. He expressed the opinion, on the basis of an analysis which he called 'stylometrics' that the utterances attributed to Jamieson in the record of interview had not come from a single person but had come from at least two sources. Mr Lohrey had not met or spoken to the appellant, but based his opinion upon an examination of the transcript of the appellant's evidence at the trial. The evidence in question lacks cogency, and there has been a failure to establish before this Court that what we have been favoured with is an expert opinion in a recognised field of scientific expertise. Furthermore, the 'fresh evidence' only pursues, in a slightly different form, the issue that was raised on behalf of the appellant at the trial. I do not consider that the conditions for the admissibility of the evidence have been satisfied … Jamieson's appeal against conviction should be dismissed."

Application for special leave

1. Mr Jamieson sought Special Leave to Appeal to the High Court against the decision of the Court of Criminal Appeal. The application "centre[d] on" what was said to be misconduct by the Crown at the trial and the Court of Criminal Appeal's refusal to accept the fresh evidence which "attacked the authenticity" of the record of interview. Following oral argument on those matters, Brennan, Deane and McHugh JJ declined to grant special leave.

Previous application for an inquiry

1. On 15 June 2001, James J declined to grant an inquiry into Mr Jamieson's convictions pursuant to Division 3 of Part 13A of the Crimes Act. The application was originally made in 1996, but following a preliminary judgment to the effect that James J was unlikely to direct an inquiry without further evidence, it was revised in 2000.
2. In determining the application, James J outlined the evidence given at trial, as well as the affidavit of Mr Lohrey which was before the Court of Criminal Appeal. His Honour also considered a report from Dr R J Gardner, a lecturer in linguistics, whose report accompanied the amended application. Dr Gardner compared the record of interview conducted with Mr Jamieson on 22 September 1988 against an interview with him conducted on 6 December 1995. The linguistic features identified by Dr Gardner in each interview were said to call into question the authenticity of the first record of interview. James J rejected this argument, saying: "The conclusion I have reached is that the differences between the interview of 22 September 1988 and the interview of 6 December 1995 in the kinds of questions asked, the identity of the interviewers, the atmospheres and circumstances of the interviews and the methods of recording the interviews are such as to invalidate the attempted comparison of the two interviews. In my opinion, the additional material consisting of Dr Gardner's report does not raise a doubt and does not give rise to a sense of uneasiness about the convictions of the applicant for the offences committed against Ms Balding. Accordingly, I decline to order that an inquiry be held into the convictions of the applicant and I dismiss the application."

New material arising from DNA testing

1. All of the matters referred to above under the heading "Procedural history" predate the recent DNA developments upon which Mr Jamieson now relies to support the present application. Accordingly, any decisions or conclusions previously formed, whether in the judicial or appellate contexts or pursuant to James J's inquiry, were made or reached without the benefit of what has now emerged and also without the prospect that further DNA revelations may come to light. Mr Jamieson contends that both of these developments place previous examinations of the evidence in a significantly different setting so that a further inquiry is warranted.
2. The material which falls for consideration, in terms of whether it now appears to the Court that there is a doubt or question for the purposes of s 79(2) of Crimes (Appeal and Review) Act, concerns the DNA testing of the bandana that has taken place since the determination of the previous application for an inquiry. That testing can be summarised as follows.
3. Following Mr Jamieson's request to the Innocence Panel, testing was conducted in 2003 which identified a partial DNA profile consistent with Ms Balding. Testing on four other areas of the bandana was unsuccessful. At the request of Mr Jamieson to the DNA Review Panel, a report by Michele Franco was provided to him in June 2008, which stated: "DNA testing (using the Profile Plus System) was conducted on five areas (areas vi, vii, viii, ix and x) cut from the gag (cloth), also known as the 'bandana'. DNA testing of each of these areas was unsuccessful. DNA testing using Y-filter* was conducted on the DNA extract retained from area v of the gag. This test was also unsuccessful. * Y-filter analyses the male component of DNA by targeting the Y chromosome (only present in males). …"
4. Following further requests by Mr Jamieson to the DNA Review Panel, more testing was conducted and the results were provided to him in February 2014. Hair from the knot of the bandana was found to be consistent with that of Ms Balding. Two cut-outs from the bandana returned DNA results. In respect of the first cut-out (area xii), Ms Balding and Mr Elliott were identified as the potential contributors of the DNA. In respect of the second cut-out (area xiii), the report recorded: "Major contributor could be Matthew ELLIOT. Traces of DNA from at least one other individual was also recovered."
5. In March 2019, Mr Jamieson made a request, pursuant to s 97 of the Crimes (Appeal and Review) Act, that further testing be carried out on the bandana in order to identify the "other individual" whose traces of DNA were detected in 2014. A report of the results, dated 4 December 2019, excluded Mr Jamieson as the contributor to DNA that was recovered (including from area (viii)).
6. As a result of further requests made on behalf of Mr Jamieson, Ms Franco performed additional testing on parts of the bandana (including area (viii)). In an expert certificate date 30 November 2023, she reported that: "Further DNA testing using the PowerPlex 21 System was carried out on DNA extracts from the gag (cloth), also known as the bandana …, areas (i), (ii), (v), (vi), (vii) and (viii). An additional two areas (areas (xv) and (xvi)) were cut from the bandana for DNA testing. A partial weak male DNA profile was recovered from area (viii) of the bandana. This profile is only suitable for exclusionary purposes and due to the partial nature of the profile, the number of contributors could not be determined. If it is assumed that the profile originates from only one individual, then this profile could not have originated from Stephen Jamieson. This profile may also be compared to other male reference profiles for exclusionary purposes. There is no DNA extract remaining from this area as the sample has been exhausted. DNA testing of areas (i), (ii), (v), (vi), (vii), (xv) and (xvi) were too weak for interpretation."

Evidence given before me on 13 December 2024

1. Clinton Mark Cochrane is the Acting Operations Director, Criminalistics, in the New South Wales Health Pathology Forensic and Analytical Science Services. His affidavit affirmed on 11 December 2024 was read without objection. Mr Cochrane has operational oversight of the department that is responsible for DNA testing.
2. Mr Cochrane gave the following evidence with respect to the DNA material detected on the bandana and the four men convicted of the murder of Ms Balding: "Q. So with that, did you test Stephen Jamieson's reference sample against the PowerPlex profile? A. It was compared, yes. Q. And was he excluded as a possible contributor? A. Yes, he was, if that profile originated from a single individual. Q. Did you test Stephen Jamieson's reference sample against the Yfiler profile? A. Yes, he was also excluded from that profile. Q. In relation to Stephen Jamieson's various applications over the years to DNA Innocence Panel and to this Court, FASS has a file or a couple of files in relation to testing that's been done as a result of those applications, doesn't it? A. It does. Q. There is a report, or a statement in fact, under the hand of Michelle Franco. … Q. And on the first page of that statement it says this: 'DNA testing using the PowerPlex 21 system was conducted on the reference samples from Janine Balding, Stephen Jamieson, Bronson Blessington and Matthew Elliott.' Can you see that? A. I can, yes. Q. So that means that FASS has reference samples from all of those named people? A. Yes. Q. And obtained DNA profiles using PowerPlex 21 from those reference samples? A. That's correct. Q. All right. And in that particular report, Matthew Elliott was found to be a possible contributor to two areas of the bandanna, being area 12 and 13? A. Sorry, can you repeat that question? Q. Matthew Elliott was found to be possibly one of the two contributors to area 12 and 13 of the bandanna? A. So in area 12… Q. Yep? A. …he was - he could have been one of the two contributors. In area 13 it doesn't list how many contributors are there necessarily but he is labelled as… Q. The major contributor? A. … the major contributor in that profile. Q. Okay. And Stephen Jamieson wasn't listed as a contributor to any of it? A. No, that's correct. Q. Then if you just now go all the way forward to the expert certificate of Ms Franco dated 30 November 2023? A. Sorry, yes. … Q. This is the report about area 8 of the bandanna and this is the one that I have been asking you questions about, yes? Area 8? A. Yes, yes, that's correct, sorry, yes. Q. And the opinion that she expresses there was an opinion that you agreed with in your affidavit? A. That's right. Q. And the opinion was that if it's assumed that the profile originates only from one individual then it could not have originated from Stephen Jamieson; that's right? A. That's part of that answer, yes. Q. That's consistent with what you have already told us? A. Yes. Q. But then it also says this: 'This profile may also be compared to other male reference profiles for exclusionary purposes.' Yes? A. Correct. Q. FASS had the profile of Bronson Blessington and Matthew Elliott, didn't it? A. It did, yes. Q. Is there a reason why that comparison was not made as part of the testing on area 8 of the bandanna? A. In the instruction to the laboratory regarding this testing, there was a component of the submission that said according to the relevant Act we were to test specific for Mr Jamieson's profile. Q. So whoever asked FASS to do the testing asked for testing to be done only in relation to Stephen Jamieson's reference sample, is that right? A. Yes. Q. When you provided that expert report, it is noted that it could be compared to other male reference profiles but nobody ever asked you to do that: nobody ever asked FASS to do that? A. I would say no one has formally asked us to do that, yes. Q. Okay. Who has asked informally? A. We have been asked if it has been compared informally probably in - in several times during legal discussions. HIS HONOUR Q. I think you were asked who asked you informally though? WILSON Q. Yes? A. In terms of has this been tested for exclusionary purposes, I've got some legal advisers within New South Wales Health Pathology who have asked if that's been there. The Crown Solicitor's Office has also asked generally has that been tested against other reference samples. Q. I see, sorry. So people have asked you whether it's been done, not they haven't asked you to do it? A. No, not officially or we haven't been asked to table a report regarding those people. Q. Okay. Has anyone told you not to do it? A. Basically we've been - we were directed back to that instruction that we were to restrict our response back to the - Mr Jamieson. Q. In terms of doing that, given you have got reference samples from at least Bronson Blessington, Matthew Elliott, that comparison with the sample from area 8 could be done very quickly and easily by you, couldn't it? A. Yes. Q. Could be done now? A. Yes. Q. Can you do it now? A. Sure. Q. Do you have the… A. I have the profiles here. Q. … the underlying data? A. I do. Sorry, which names were you pointing out there? Q. First let's go with Bronson Blessington? A. Okay. He is excluded from being a contributor to this profile, if it is assumed it is a single source profile. Q. Okay. So Bronson Blessington is excluded? A. Correct. Q. What about Matthew Elliott? A. He is also excluded. Q. There is another male person of interest - or I withdraw that - it's on the public record as being convicted in relation to the murder of Janine Balding - Wayne Wilmot. Does FASS have a reference sample for him? A. Yes, we do. Q. Do you have that with you? A. I do, yes. Q. And what is the situation with him and area 8 on the bandanna? A. He is also excluded."
3. The significance of this evidence is referred to later in these reasons

Possible outcomes if testing were to take place

1. The following exchanges on 13 December 2024 between me and Mr Wilson of senior counsel for Mr Jamieson should be noted: "WILSON: Order 1 to do the testing against Mr Wells' DNA profile, because if that testing, whatever its results, will be important in the determination for an application for an inquiry. Given the evidence of Mr Cochrane today, that the four convicted offenders, Mr Jamieson, Mr Wilmot, Mr Blessington and Mr Elliott, have all been excluded as possible contributors. He said that that was unaffected by whether it is a mixed profile or not. He said the likelihood ratios and the statistics are affected, but the exclusion factors are [not]. So, the evidence before this court is that they could not have contributed. Then the two possible results we have from the testings of Mr Wells is that he is either excluded or he is not. If he is excluded that does not advance the [Part 7] application. If he is not excluded that takes on a much greater significance than it might otherwise have taken, with or without the likelihood of ratios because these four men have now been excluded. If he cannot [be] excluded, that becomes very powerful evidence in support of Mr Jamieson's contention that he was not the person but Mr Wells was the person. HIS HONOUR: Mr Jamieson's conviction is in a different category to the other three, isn't it? WILSON: Yes. HIS HONOUR: No one has cast doubt upon the conviction of the others? WILSON: No. No, the state of you [as said] dispute, as it were, has been for many years now, whether the police got the right 'Shorty'. HIS HONOUR: I understand that. WILSON: As a matter of scientific reality each of those outcomes is a possibility. The comparison from Mr Cochrane, he could have done it in the witness box. It could be done quickly and easily. HIS HONOUR: He can do it in the witness box because the statistical analysis has already been done. WILSON: The obtaining of the profiles had been done. HIS HONOUR: So he is only telling you what he already knows. WILSON: In my submission the only thing which has stood in the way of the testing of the bandana against Mr Wells' DNA has been the police unwillingness to do so in the context of a police investigation. That is a factor that goes, in my submission, towards the exercise of the court's discretion to make the orders. There are compelling reasons, in the interests of justice, and in the public interest why this testing should be done. They are reasons that go to the very heart as to the purpose of Part 7 of the Crimes and Review Appeal Act. They are reasons that are so compelling, in my submission, that even if the Court considered the Commissioner was constrained by s 97(1A), the Court should nevertheless make the order. In my submission that is why the Court should make the orders sought. HIS HONOUR: The overarching burden of your submission is, putting aside Mr Wells, who could complain about a comparison taking place? I know that is not a legal test, but in terms of an understanding of a discretionary point, that is your proposition, or one of them? WILSON: Yes, your Honour." [Emphasis added]
2. In summary, the present position is that the partial DNA profile recovered from the bandana, as a result of the testing described above, has (apparently) not yet been compared against a DNA profile for Mr Wells. Indeed, prior to 2 November 2023, information about Mr Wells' DNA profile was not even held by the New South Wales Police Force. However, on that date, information about Mr Wells' DNA profile was obtained from Queensland. There is therefore no longer any practical or scientific impediment to a comparison being made between the DNA on the bandana and Mr Wells' DNA. The Crown maintains that there is a legal impediment to that occurring. The issues for determination are directed towards the resolution of that dispute.

Use of Mr Wells' DNA profile: summary of Crown contentions

1. Before proceeding to deal with the intricacies of the competing arguments on the issues raised for determination on Mr Jamieson's notice of motion, the following introduction to the Crown's position may be instructive.
2. The Crown maintains that there is presently a statutory bar on using the information held by the police about Mr Wells' DNA profile for the purposes of a comparison with the "partial weak male DNA profile" recovered from the bandana in November 2023. In relation to DNA information that is transmitted between States, s 97(1A) of the Crimes (Forensic Procedures) Act relevantly provides: "(1A) Information that is transmitted under this section must not be used except for the following purposes- (a) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of a jurisdiction that is a party to the arrangements".
3. The arrangement in place between Queensland and New South Wales pursuant to s 97(1) of the Crimes (Appeal and Review) Act 2001 concerns the transmission of DNA information about individuals where a match has been identified (for example, as between a DNA profile recovered from a crime scene and a DNA profile obtained from an offender) via the National Criminal Investigation DNA Database. No such match was identified in this case because the partial weak DNA profile has not been included on the National Data Base due to its limited quality. The requirement that DNA be of a particular standard before it is included on the National Data Base is understandable as a partial DNA profile might return matches to multiple individuals who share that limited DNA information.
4. Additionally, Mr Wells was neither a party to the summons proceedings and has no role to play in the application for an inquiry. As far as the Crown is aware, Mr Wells does not know of Mr Jamieson's requests to compare his DNA profile, obtained from Queensland, against the partial weak DNA profile recovered from the bandana. Although s 97 permits an applicant to request certain testing to be undertaken of "retained biological material" (such as on the bandana), sub-s 97(8)(a) makes clear that such testing is not to result in that applicant being provided with "information that may reveal the identity of a person other than [himself] in connection with the offence for which he … was convicted".
5. The Crown does not suggest that s 97(8)(a) applies directly or in terms because it is understood that Mr Wells' DNA profile and the partial weak DNA profile recovered from the bandana could now be compared without further testing of biological material (i.e. without resort to physical samples). But a legislative purpose to protect the identity of third parties can be discerned in s 97(8)(a), and this concern may be particularly acute where use of a person's DNA profile by comparison against a partial weak DNA profile that is not worthy of inclusion on the National Data Base is proposed.
6. In these circumstances, the Crown considers that it is presently unable as a matter of law to compare Mr Wells' DNA profile against the partial weak DNA profile recovered from the bandana.

How and when did NSW Police obtain Mr Wells' DNA profile?

1. As adverted to already, NSW Police began taking steps in June 2023 to obtain Mr Wells' DNA profile from Queensland Police. On 7 June 2023, an email was generated internally within NSW Police in the following terms: "Afternoon [redacted] Can we please check with our QLD colleagues if the below person [i.e., Mr Wells] has a DNA sample on NCIDD. NCIS indicates he may. This relates to the homicide of Janine Balding as part of an Office of General Counsel response to one of the convicted offender [sic] for this matter. I don't have an event as this is pre COPS."
2. The following day, a request was sent to Queensland Police in the following terms: "Good morning QPOL Can you please advise if you have DNA on file for the below POI as it relates to a NSW Cold Case Homicide. POI: Mark Wayne Wells DOB: [redacted] CNI: [redacted] If you do I will send a thatcher for the DNA profile."
3. Queensland Police responded as follows: "Good morning [redacted] QPS does have a DNA record for Mark Wayne Wells [redacted] and it is recorded on NCIDD."
4. More than three months later, on 30 October 2023, an Intelligence Analyst & NCIDD Administrator within NSW Police formally requested Queensland Police to provide Mr Wells' DNA profile. The terms of the request were (in part) as follows: "Can we please request the DNA profile (aware that its Profiler Plus) for the below POI as it relates to an onoging [sic: ongoing] homicide."
5. An Inspector from the NSW Police Forensic Evidence and Technical Services Command signed the request certifying that: "the New South Wales Police is lawfully able to receive the requested information detailed in this form, according to the provisions of the NSW - Crimes (Forensic Procedures) Act 2000".
6. On 2 November 2023, Queensland Police provided the requested profile. A Senior Sergeant from the Queensland Police Force certified that: "Queensland Police can lawfully supply the DNA information referred to in this form under the provisions of the QLD - Police Powers and Responsibilities Act 2000".
7. Queensland Police noted that Mr Wells' DNA information was obtained from "An arrested or Convicted Person" and in circumstances where Mr Wells was charged with indictable drug offences in 2011.
8. The DNA profile of Mr Wells that was provided to NSW Police is sufficient to use for exclusionary purposes against the profile recovered from area (viii) of the bandana.
9. If the profile recovered from area (viii) is compared to Mr Wells' DNA profile for exclusionary purposes, there are three possible results: 1. Mr Wells is excluded; 2. Mr Wells cannot be excluded; 3. Mr Wells cannot be excluded together with a likelihood ratio.
10. It is Mr Jamieson's submission that if the result of the comparison is either (b) or (c), having regard to the persistent issues raised about the identity of the offender "Shorty" over many years including at Mr Jamieson's trial and appeal, then this would provide powerful support for his application under Part 7 for a further inquiry into his convictions.
11. In contrast, the Crown's position is that the male DNA profile recovered from the bandana is partial and weak and may only be used for exclusionary purposes. It cannot be used positively to identify the contributor or contributors of that DNA. As explained by Ms Franco, the number of contributors to the profile identified in November 2023 cannot be determined. As a result, even on the hypothesis that Mr Wells cannot be excluded as a contributor, that would not give an inquiry cause to overturn Mr Jamieson's conviction. Because of the partial and weak nature of the DNA profile, Mr Wells cannot be identified as the contributor and numerous individuals could share the limited DNA information that comprises the profile, assuming the profile originates from only one individual. Further, as recorded on Ms Franco's certificate of 30 November 2023, the certificate says, "There is no DNA extract remaining from this area as the sample has been exhausted".

Issue 1: Whether s 97 of the Crimes (Forensic Procedures) Act 2000 precludes the NSW Forensic & Analytical Science Service from using information about Mr Wells' DNA for the purpose of DNA testing under s 97 of the Crimes (Appeal and Review) Act.

1. It is not in dispute that the NSW Police Commissioner is in possession of information about the DNA profile of Mr Wells.
2. The Crown's asserted "statutory bar" to using Mr Wells' DNA profile obtained from Queensland Police for comparison with the DNA profile recovered from area (viii) of the bandana for which the Crown contends is said to be found in s 97 of the Crimes (Forensic Procedures) Act, which relevantly provides as follows: 97 Database information (1) The Minister may enter into arrangements for any of the purposes set out in subsection (1A) with the responsible authority of one or more participating jurisdictions under which-- (a) information from the DNA database of this State may be transmitted to any jurisdiction that is a party to the arrangements, and (b) information from any such jurisdiction may be transmitted to this State. (1A) Information that is transmitted under this section must not be used except for the following purposes-- (a) the investigation of, or the conduct of proceedings for, an offence against the law of this State or the law of a jurisdiction that is a party to the arrangements, (b) the identification of missing or deceased persons, (c) if arrangements are entered into with the Australian Crime Commission--the Australian Crime Commission comparing the transmitted information with information transmitted from a participating jurisdiction and then notifying this State and that jurisdiction of any matches that it finds. (1B) Arrangements under this section may not authorise the comparison of information so as to match DNA profiles in a manner that would contravene section 93 were the information contained wholly within the DNA database of this State. (2) Information that is transmitted under this section must not be recorded or maintained in any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person at any time after this Act or a corresponding law of a participating jurisdiction requires the forensic material to which it relates to be destroyed.
3. Mr Jamieson submitted that s 97 is not a statutory bar for two reasons. 1. First, the information about Mr Wells' DNA profile was not transmitted under the section and as a result s 97(1A) has no application. 2. Secondly, even if the section applies, the information would be used "for the purposes of the investigation of, or the conduct of proceedings for, an offence against the law of this State": Mr Wells' DNA profile would be used further to investigate the offences committed against Ms Balding, consistently with the terms of NSW Police request for it, being in connection with a "NSW Cold Case Homicide" and "ongoing homicide" investigation, as well as in the context of Mr Jamieson's Part 7 application.
4. As to whether Mr Wells' DNA information was transmitted under the section, the Crown has submitted at [64] above that: "The arrangement in place between Queensland and New South Wales pursuant to s 97(1) of the CFP Act concerns the transmission of DNA information about individuals where a match has been identified (for example, as between a DNA profile recovered from a crime scene and a DNA profile obtained from an offender) via the National Criminal Investigation DNA Database (NCIDD). No such match was identified in this case because the partial weak DNA profile has not been included on the NCIDD due to its limited quality."
5. A copy of the ministerial arrangement is set out at Tab 4 of Exhibit JM-1 to the affidavit of Jamie McLachlan affirmed on 1 March 2024. The terms of the arrangement make clear, in both the purposive terms of the agreement on the first page, and in Part 1 of the Schedule, that it is limited to the exchange of DNA information between the two jurisdictions "following notification of a match on NCIDD".
6. The correspondence between NSW and Queensland police, including a form headed "Provision of DNA Information Form", which led to the transmission of the information is set out and referred to above at [68] to [74]. Neither the email correspondence nor the form refers to the terms of the arrangement: there is reference in the form to the Crimes (Forensic Procedures) Act but not specifically to s 97. There is also a reference to the Police Powers and Responsibilities Act 2000 (Qld) but not to any particular section. (Section 533 of the Queensland Act is the counterpart of s 97 of the Crimes (Forensic Procedures) Act).
7. It might be inferred that the officers involved were purporting to act in accordance with the terms of the arrangement under s 97 and the Queensland equivalent. However, regardless of what they purported to do, the preconditions for transfer under s 97 were not met and the information was not transmitted under the section. The restriction in s 97(1A) therefore does not apply.
8. Further, s 493 of the Queensland Act provides a broad power for the use of the Queensland database by the Commissioner, as follows: "It is lawful for the Commissioner to use QDNA or the ACC database for performing any function of the police service."
9. Schedule 6 of the Queensland Act defines "function of the police service" to include an investigation conducted by a police officer for a declared agency. "Declared agency" is defined as "an entity prescribed under a regulation as a declared agency for this Act".
10. Regulation 25 of the Police Powers and Responsibilities Regulation 2012 (Qld) provides that a declared agency is listed in Schedule 6 of the Regulations. Schedule 6 includes "A police force or police service of another State or the Commonwealth".
11. Accordingly, pursuant to s 493 of the Queensland Act, it was open to the Queensland Commissioner (or his/her delegates) to use the Queensland database to perform an investigation for the NSW police. The transfer by the Queensland Commissioner of Police (by his/her delegate) of Mr Wells' DNA profile was not unlawful.
12. As to whether the use of the information is otherwise prevented, Mr Jamieson has been unable to locate any law which prevents the transmission of DNA information between investigating police from two different States in circumstances, as here, where there was no attempt to use database matching. It is unclear whether the Crown is asserting that the actions of police were unlawful. Mr Jamieson does not concede that they were. Likewise, he has been unable to locate any statutory provision preventing the use of material transmitted in this way.
13. Even if the actions of any or all of the police officers involved in transmitting Mr Wells' DNA profile were unlawful, that does not mean that the Commissioner of Police, and Forensic & Analytical Science Service, cannot use the information they received. The situation would then be directly analogous to the circumstances considered by the High Court in Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177. In that case, material was seized under an invalid search warrant. The High Court held that a provision about the use of material seized by warrant (which did not apply because the warrant was invalid) was not the sole source of authority to use the information seized. As Kiefel CJ, Bell and Keane JJ explained at [65]: "The general power given by s 8 is not expressed to be subject to a restriction respecting the use of documents or information and the manner in which they were obtained. Any such restrictions are to be found elsewhere. But neither the common law nor statute law presumes that information unlawfully obtained may not be used in the investigation or prosecution of an offence. Bunning v Cross held that evidence is not on that account alone excluded as admissible evidence. The public interest in bringing persons to conviction is to be weighed against any perception that the courts may be seen to approve unlawful conduct. The discretionary process by which this is achieved is now governed by s 138 of the Evidence Act 1995 (Cth). It would be to give decisive weight to the fact that the information was unlawfully obtained, contrary to the rationale of Bunning v Cross and s 138 of the Evidence Act, if the AFP was not able to retain the information for so long as it is required for the purposes of investigating and, if appropriate, prosecuting an offence or offences against Commonwealth law. The plaintiffs' argument that Pt IAA is the sole source of an authority to use the information taken and that it provides a basis for an injunction must be rejected."
14. In this case, the same principles apply. The public interest in ensuring the integrity of convictions and the undoing of wrongful convictions is no less important than the interest in bringing wrongdoers to justice. Section 97(1A) of the Crimes (Forensic Procedures) Act does not prevent the use of Mr Wells' DNA information for the purposes of s 97 of the Crimes (Appeal and Review) Act, nor is there any other restriction of common law or statute law which does so. In the event that there is a referral to the Court of Criminal Appeal, if objection is taken, then s 138 of the Evidence Act 1995 may need to be considered. However, in the meantime there is nothing preventing the Commissioner from arranging the testing, using Mr Wells' DNA information.

Issue 2: Whether s 97 of the Crimes (Appeal and Review) Act applies to Mr Wells' DNA information held by the Commissioner of Police.

1. In 2013, the Department of Attorney General & Justice commissioned a review of the DNA Review Panel. The retention of the panel was not recommended. The review concluded that, while there would be an ongoing need for "post- conviction review based on DNA evidence", this should be provided for "thorough existing review mechanisms, with a number of enhancements". The Executive Summary of the review concluded: "The recommendations of this Review would create a streamlined process whereby all applicants for review rely on the same provisions in Part 7. However, the Review recognises the importance of retention of biological exhibits and providing access to forensic testing in appropriate cases. As such, the Review recommends that provisions requiring retention of exhibits, and facilitating access to those exhibits for testing, should be retained in Part 7 of the Act."
2. The Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2013 was passed to implement the recommendations arising from the review. That Act commenced on 23 February 2014 and effectively abolished the panel. Before its abolition (as the review explains) the DNA Review Panel's task was: (a) To consider any application by an eligible convicted person to assess whether DNA evidence would affect the person's claim of innocence. (b) To arrange searches for, and DNA testing of, biological material. (c) To refer matters to the Court of Criminal Appeal for review of a person's conviction where appropriate following receipt of DNA test results. (d) To make reports and recommendations to the Minister regarding the use of DNA technology in assessing claims of innocence.
3. In abolishing the panel, the review noted that Division 6 of Part 7 of the Crimes (Appeal and Review) Act contained elements "essential to people seeking DNA testing to establish innocence" and that these aspects, "could not be repealed without detriment". Accordingly, the review recommended: "In the absence of a Panel, the provisions could provide that a convicted person, or their legal representative, could request information about existing biological material from NSW Police or another public authority, and request that particular material be tested. The provisions could permit (but not require) the Police or other public authority to disclose information about existing biological material to the Applicant or their representative, and to forward material to the NSW Forensic & Analytical Science Service for testing, in line with existing protocols for chain of custody of evidence. To safeguard the integrity of the evidence, it is not recommended that evidence be released directly to the Applicant or their representative. The ability to facilitate testing by agreement will reduce the need for court ordered disclosure. However, in instances where police or a public authority refuse to disclose information or forward exhibits for testing, the provisions in Part 7 could enable a convicted person to make an application to the Supreme Court for provision of information or biological material."
4. The review recommended that an option be adopted which would see "a post- conviction DNA review scheme based on a system of Supreme Court inquiries, supported by provisions requiring retention of biological exhibits and permitting access to exhibits for testing". The content of the review which led to the abolition of the DNA Review Panel is important context in which what remains of Division 6 of Part 7 of the Crimes (Appeal and Review) Act should be interpreted.
5. Section 97(2) provides: (2) The Commissioner of Police (or the head of any other authority of the State) may, at the request of a person convicted of an offence (the "convicted person") or his or her legal representative, do either or both of the following - (a) provide information to the person making the request about whether the NSW Police Force (or the authority) has retained biological material in connection with that offence and, if so, what that material comprises, (b) arrange for such items of retained biological material as may be specified in a request to be sent to the NSW Forensic & Analytical Science Service (or its successor) for DNA testing and then forward the results of that testing to the person making the request.
6. "Biological material" is defined in s 74 of the Crimes (Appeal and Review) Act as follows: "biological material" means human blood, semen, hair, saliva, skin tissue or other biological material from which DNA information may be obtained, whether the material separately identified or present in other material.
7. In this case, the trace DNA in or on the bandana is clearly "biological material" retained in connection with the offences for which Mr Jamieson has been convicted. He simply requests that Forensic & Analytical Science Service undertake further DNA testing of the bandana against the profile of Mr Wells' DNA. Section 97(2) of Crimes (Appeal and Review) Act contemplates such a request, consistently with the recommendations of the review which abolished the DNA Review Panel.
8. On its face, s 97 is capable of being read more narrowly than this, as limited to requests by a convicted person or their legal representative for DNA testing of retained biological material solely for the purpose of obtaining DNA profiles from that material without comparing, or testing them, against other profiles such as reference samples from suspects or persons of interest. However, such an interpretation is inconsistent with the recommendations of the review which abolished the DNA Review Panel, and in fact, contradicts them. It is inconsistent with the purpose of the legislation.
9. "DNA testing" should be read as contemplating both the obtaining of DNA profiles from any retained biological material, and comparing those profiles with, or testing them against, any known DNA profiles. To interpret the provision otherwise would be to render any request by a convicted person under the section pointless. The convicted person or his or her legal representative would have nothing with which to compare any profile identified on retained biological material. A convicted person or his or her legal representative does not keep and maintain a DNA database or a set of DNA profiles or reference samples from suspects including themselves.
10. This broader interpretation of "DNA testing" is also consistent with the terms of s 96 of the Crimes (Appeal and Review) Act. In s 96(3), one of the exceptions to the duty of police to retain biological material is where: "(d) the material has already been subject to DNA testing and the testing indicates that it relates only to the convicted person concerned." (emphasis added)

Issue 3: Whether the testing sought by Mr Jamieson "of the biological samples from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Ms Franco's statement dated 30 November 2023 against the DNA profile of Mr Wells" involves "DNA testing" of "retained biological material" in the terms of s 97 of the Crimes (Appeal and Review) Act.

1. For the reasons identified above, Mr Jamieson submitted that the answer to this question should be "yes". I do not understand this to be any longer in issue.

Issue 4: Whether s 97(8)(a) of the Crimes (Appeal and Review) Act precludes the Commissioner of Police from providing Mr Jamieson with information or "results" relating to individuals other than him.

1. Section 97(8)(a) provides that: (8) Nothing in this section permits- (a) the Commissioner of Police (or the head of any other authority of the State) to provide information that may reveal the identity of a person other than the convicted person in connection with the offence for which he or she was convicted.
2. Properly understood, this provision does not mean that the Commissioner of Police cannot inform Mr Jamieson if, following DNA testing of the bandana, Mr Wells cannot be excluded as a contributor to (or the contributor of) the partial weak male DNA profile on the bandana (or one or more of the other biological samples from areas (i), (ii), (v), (vii), (xv) and (xvi), referred to in Ms Franco's statement). Such an interpretation would be unworkable in practice and absurd.
3. In any event, the provision of such information to Mr Jamieson about the results of the DNA testing undertaken here would not "reveal the identity of Mr Wells … in connection with the offence". Mr Wells is already identified in connection with the offence. He has been identified in connection with the offence since before Mr Jamieson's trial in 1990.
4. The fact that sub-section (8) appears in s 97 at all, however, is relevant for another reason: it further informs the proper interpretation of s 97(2). If DNA testing means nothing more than the extraction of DNA profiles and not the testing of the material against the profiles of individuals, s 97(8) would have no work to do.

The Crown's submissions

1. Order 1 sought in the notice of motion would require the Commissioner to (a) send "any biological material comprising reference samples from Mark Wayne Wells" to the NSW Forensic and Analytical Science Service, (b) arrange for "the testing of the biological samples from areas (i), (ii), (v), (vii), (viii), (xv) and (xvi) of the bandana referred to in Ms Franco's statement dated 30 November 2023" to be compared against Mr Wells' DNA profile and (c) convey the results to Mr Jamieson.
2. The Crown emphasised from the outset that it is important to place Order 1 in the context of the evidence before the Court on Mr Jamieson's Part 7 application: the Commissioner is not in possession of "biological material comprising reference samples" from Mr Wells. Only information about Mr Wells' DNA profile was obtained from Queensland. Ms Franco's statement records that the DNA testing of areas (i), (ii), (v), (vi), (vii), (xv) and (xvi) is too weak for interpretation, the partial weak male DNA profile, recovered from area (viii), may be compared to other profiles for exclusionary purposes, but the sample has been exhausted and no DNA extract remains for further testing and area (xviii) has been retained.
3. Thus, notwithstanding the broad terms of Order 1, it would appear that, practically speaking, the information about Mr Wells' DNA profile could be compared only with the information about the partial weak male DNA profile recovered from area (viii). Neither of those pieces of information is in the form of a biological sample or biological material.

Statutory bar on using Mr Wells' DNA profile

1. As previously outlined, the position of the Crown and the defendants to the motion, is that it may not be open to the Commissioner, as a matter of law, to accede to Mr Jamieson's request to use Mr Wells' DNA profile in a comparison with the results obtained from the bandana by reason of s 97(1A) of the Crimes (Forensic Procedures) Act. Relevantly, s 97(1A) provides that information transmitted to New South Wales "under this section", which empowers the Minister to enter into arrangements with other jurisdictions, cannot be used except for "the investigation of … an offence against the law of this State". It appears that the statutory bar in s 97(1A) is engaged for two reasons.
2. First, it is common ground that the arrangement in place between New South Wales and Queensland contemplates that the transmission of information will occur following a match being identified on the National Criminal Investigation DNA Database and no match was identified in this case. It also appears to be common ground that the information about Mr Wells' DNA profile was requested and transmitted in actual, even if mistaken, reliance on the arrangement.
3. Mr Jamieson contends, however, that the information about Mr Wells' DNA profile was not transmitted under s 97. His submission assumes that s 97(1A) should be construed as if it read "transmitted under this section [as a matter of law]" or, put another way, that s 97(1A) is not engaged unless the transmission is squarely within the terms of a relevant arrangement. To the contrary, the Crown submits that the restriction in s 97(1A) is still engaged where, as a matter of fact, information was transmitted (that is, purportedly transmitted) under the section. It is well-established that a thing done in purported, but ultimately ineffective, reliance on a particular power or authorisation remains at all times a thing in fact: the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. It is a matter of construction whether a statute attaches consequences, including the creation of legal obligations, upon the fact of a thing having been done, regardless of the legal force or effect of the thing itself.
4. The preferrable construction of s 97(1A) is that it extends to circumstances where officers intended and purported to act in reliance on an arrangement, but were mistaken as to what that arrangement authorised. It would be an unlikely outcome if there were no restriction on the use of transmitted information in those circumstances. Section 97 read as a whole evinces a concern to protect the privacy of persons save for the limited infringement permitted by law (see, for example, s 97(2)), and to give effect to intergovernmental agreements which would be undermined if the receiving jurisdiction had, in effect, free rein to utilise information transmitted on a limited basis where, for whatever reason, the terms of the arrangement were not precisely adhered to.
5. Secondly, Mr Jamieson submits that, even if s 97(1A) applies, the use of the information about Mr Wells' DNA profile for comparison to the partial weak male DNA profile recovered from the bandana would constitute use for "the investigation of … an offence against the law of this State", being the offences committed against Ms Balding. There is no ongoing or pending investigation of the offences committed against Ms Balding. Mr Jamieson and his co-offenders have been convicted of those offences; the convictions have been upheld on appeal; and no review of the convictions is underway pursuant to Part 7 of Crimes (Appeal and Review) Act. A request by Mr Jamieson for further testing, and a presently undetermined application for an inquiry, do not amount to an investigation of the offences.
6. Insofar as the Crimes (Appeal and Review) Act is intended to apply to reviews of, or inquiries into, convictions pursuant to Part 7, it contains specific provisions, which do not extend to applications for inquiry (see s 92(2)(f)). By comparison, the purposes specified in s 97(1A) are more limited (as also reflected in s 92(2)(d)). The requirement in s 79(2) of the Crimes (Appeal and Review) Act that there appear to be a doubt or question as to a convicted person's guilt before an inquiry is directed reflects the value placed on the finality of criminal proceedings. It would be inapposite to describe there as being an ongoing investigation, for the purposes of s 97(1A) of the Crimes (Appeal and Review) Act, into cases for which persons have been convicted and all relevant appeals pursued.
7. Finally, Mr Jamieson submits that there is no other restriction on the use of the information about Mr Wells' DNA profile. The scope of the powers under the law of Queensland to transmit the information does not resolve the current issue, which concerns the use to which the information may now be put. The situation is not analogous to Smethurst v Commissioner of the Australian Federal Police. As is clear from the passage upon which Mr Jamieson relies, Kiefel CJ, Bell and Keane JJ reasoned that the Australian Federal Police otherwise had statutory power to use the seized documents and information. There is no general power under the Crimes (Appeal and Review) Act or, it would appear, any other legislation conferring functions on police, to use DNA information on the DNA Database or obtained from interstate authorities for investigative purposes at large. Indeed, the strictures of Parts 11 and 12 of the Crimes (Forensic Procedures) Act, together with the restrictions on disclosure under s 109, tell against there being some freestanding power that is untethered to the requirements of that Act. The inability to use the information about Mr Wells' DNA profile does not arise from the manner in which it was obtained. Rather, it stems from the absence of any authority or permission for the Commissioner to use the information in the way requested in the circumstances of this case.
8. To the extent s 97(1A) of the Crimes (Forensic Procedures) Act applies to the requested use of the information about Mr Wells' DNA profile, it is submitted that it would not be open to make an order under s 97 of the Crimes (Appeal and Review) Act to act contrary to s 97(1A). The latter is a specific provision that governs the use of information about DNA in particular circumstances. Its effect should not be defeated by orders made pursuant to a more general provision.

Testing pursuant to s 97 of the Crimes (Appeal and Review) Act

1. Section 97 of the Crimes (Appeal and Review) Act applies to biological material in connection with an offence for which a person has been convicted: s 97(1). "[B]iological material" is defined in s 74(1) to mean "human blood, semen, hair, saliva, skin tissue or other biological material from which DNA information may be obtained, whether the material [is] separately identified or present in other material." It is tolerably clear then that DNA information itself is not biological material.
2. Under s 97(2)(a), a request may be made with respect to "retained biological material in connection with that offence", being the offence for which the person making the request was convicted as referred to in the chapeau. The same limitation applies in s 97(2)(b) by virtue of the description of "such items of retained biological material as may be specified in a request".
3. Mr Jamieson seeks to have the Forensic & Analytical Science Service compare two pieces of information. No request is made for "DNA testing" of "retained biological material". It is not disputed that DNA recovered from the bandana is retained biological material. But nothing of that nature remains from area (viii) as the sample has been exhausted. Further, the information about Mr Wells' DNA profile is neither biological material nor connected to an offence of which Mr Jamieson has been convicted. The "Thatcher" form depicts Mr Wells' DNA information in a tabular format and the obtaining of that information was connected to unrelated offences in Queensland in 2011.
4. Mr Jamieson contends that s 97 of the Crimes (Appeal and Review) Act should be interpreted broadly so as to permit the DNA testing of biological material retained in connection with the offences against Ms Balding to be compared against Mr Wells' DNA information even though that information is not connected with those offences. That submission has some difficulties, but it would be open to the Court to accept at least the limited proposition that a comparison of information about DNA recovered from biological material held in connection with an offence with other DNA information involves "DNA testing" for the purpose of s 97 of the Crimes (Appeal and Review) Act (at least where that occurs in a continuum). For example, there would be DNA testing within the meaning of s 97 if a crime scene exhibit were compared against a DNA profile on the NSW DNA database, even though the latter profile is not connected with the offence of which the person who makes the request under s 97 stands convicted. The Forensic & Analytical Science Service's position on the process of DNA comparison/matching is outlined in Mr Cochrane's affidavit at [8]-[10].
5. The issues which arise, however, are whose DNA information may be compared and what results can be communicated to the convicted person, having regard to: 1. s 97 of the Crimes (Forensic Procedures) Act; 2. the terms of s 97(2)(b) of the Crimes (Appeal and Review) Act that the Commissioner (or the head of any other authority of the State) must "forward the results of that testing to the person making the request"; and 3. the terms of s 97(8)(a) of the Crimes (Appeal and Review) Act, which provides that nothing in s 97 permits the Commissioner (or the head of any other authority of the State) to provide information that may reveal the identity of a person other than the convicted person in connection with the offence for which he or she was convicted.
6. While the purpose of s 97 of the Crimes (Appeal and Review) Act is to provide a facility for convicted persons to request DNA testing that may support a claim of innocence, that single legislative purpose is not pursued at all costs and it would be an error to assume as much for the purposes of construing the section. For example, the extent to which convicted persons were intended to be able to exonerate themselves by exploring theories about the offence having been committed by another person is limited by s 97(8)(a) of the Crimes (Appeal and Review) Act. Section 97 of that Act is not rendered "pointless" or "absurd" by enabling a convicted person to find out that DNA other than their own has been identified, but restricting access to the identity of the person whose DNA is concerned. Section 97 allows a convicted person to ascertain his or her own position vis-à-vis DNA recovered from biological material that is connected to the offence for which they were convicted.
7. Mr Jamieson's construction appears to give s 97(8)(a) very little work to do. Indeed, it would seem that a convicted person would be able to negate the protection afforded by that provision to third parties by simply hypothesising that the relevant third party will be identified or even more remotely, not excluded as a contributor. Section 97(8)(a) is broadly worded. It prevents the Commissioner from providing information that would give a line of enquiry as to a third parties' identity. That is made clear by the language of "information that may reveal the identity of a person" (emphasis added). It is submitted that this includes identifying that a particular person cannot be excluded as a contributor of the relevant DNA.
8. In the present case, if the requested testing were performed and the result was that Mr Wells was unable to be excluded as a contributor to the partial weak male DNA profile recovered from the bandana, the Crown submits that s 97(8)(a) of the Crimes (Appeal and Review) Act would prohibit that result being communicated to Mr Jamieson in the context of the present request under s 97. To indicate the possibility that a DNA profile originates from a particular person provides information that may reveal the identity of that person with respect to the subject matter of the test.

Whether order should be made

1. If, contrary to the submissions above, the notice of motion seeks to achieve something that is available pursuant to s 97 of the Crimes (Appeal and Review) Act, it remains that the Court has a discretion pursuant to s 97(5) as to whether to make the order. There is no dispute that the criteria in at least s 97(5)(a) and (c) are met. It is also accepted that s 97(5)(b) of the Crimes (Appeal and Review) Act does not impose an onerous threshold, in so far as the DNA information obtained from the biological material "may" affect Mr Jamieson's claim of innocence. But Mr Jamieson overstates the utility of what is requested. The fact that Mr Wells is a possible contributor of the partial weak male DNA profile - which is presently the case and would, at best for Mr Jamieson, be confirmed by the steps proposed - does not of itself give rise to a doubt or question as to his guilt for the purposes of s 79(2) of the Crimes (Appeal and Review) Act.

Order 2 of the Notice of Motion

1. Order 2 presses Mr Jamieson's "other requests dated 5 November 2024". These include the provision of "documents and data contained on the Forensic & Analytical Science Service file" in relation to testing performed by reference to the DNA profiles of Mr Jamieson, Ms Balding, Mr Wells and Mr Jamieson's co-offenders. This request proceeds on the assumption that such documents and data are "the results" of the testing to be forwarded to Mr Jamieson for the purposes of s 97(2)(b) of the Crimes (Appeal and Review) Act.
2. The Crown accepts that the results of DNA testing include the graphical representations of DNA profiles recovered or identified, in addition to the interpretation of those findings by way of expert certificate or report. As part of an overall DNA testing process, the latter (i.e. the products of the interpretation phase) is required to make sense of the former (i.e. the products of the laboratory process), as Mr Cochrane explains. That is not to say, however, that the entirety of the case file kept by the Forensic & Analytical Science Service can be characterised as "the results" of testing. For example, delivery documents and correspondence do not readily answer that description. Nor would other information unrelated to the DNA testing itself comprise the results of DNA testing. Whether other contextual information can be said to fall within the statutory concept of "the results" will depend on the circumstances of the case and the documents in question.
3. The Crown submitted that this aspect of Mr Jamieson's request encounters the difficulties referred to above in relation to s 97(8)(a) of the Crimes (Appeal and Review) Act. The Crown perceives that Mr Jamieson may wish to obtain documents and data about the DNA profiles of others, including Mr Wells, in order to use that information to conduct his own analysis of the DNA via an expert. In the Crown's submission, s 97 plainly was not intended to allow convicted persons to involve and investigate other people in that way. The disclosure of information about a third party's DNA profile is information that "may reveal" their identity in various applications.

Comment

1. I pause before proceeding to observe that the unchallenged factual context in which the current debate is being considered is notable by the complete absence of any physical, practical or scientific impediment to the grant of the relief which Mr Jamieson seeks. Information about Mr Wells' DNA is retained by the Commissioner. It was furnished to the NSW Police by their Queensland counterparts pursuant to an inter-agency request. It is capable of being used for comparison with DNA on the black bandana used in the murder of Ms Balding. It is known that the bandana contains no DNA of any of the offenders convicted of crimes against Ms Balding. It is not known - yet - whether there is any connection between the DNA on the bandana and Mr Wells. A comparison of the two has never been carried out as far as the evidence before me is concerned. The Commissioner's opposition to Mr Jamieson's desire to solve that unanswered question is based entirely upon her concern that any attempt to compare the bandana DNA with Mr Wells' DNA would be unlawful. The Commissioner contends not that a comparison should not be performed because it would be futile from a scientific perspective but that it would be legally impermissible having regard to the complicated statutory regime that deals with the issue.

Issue 1

1. In my opinion, s 97 of the Crimes (Forensic Procedures) Act does not preclude or prevent the NSW Forensic & Analytical Science Service from using information about Mr Wells' DNA for the purpose of DNA testing under s 97 of the Crimes (Appeal and Review) Act. This is for the following reasons.
2. First, the information about Mr Wells' DNA profile appears to have been transmitted under s 97 of the Crimes (Forensic Procedures) Act. The inter-departmental correspondence passing between police in Queensland and NSW is not particularly formal but there is reference to the Act in the request from the NSW Police Forensic Evidence and Technical Services Command. On one view of the section, the regime appears to be permissive rather than restrictive, so that the possession of the material by the NSW police in whatever capacity would suffice. My view that s 97 applies would however potentially yield to significantly better and more compelling evidence of how the material came to be transferred to NSW.
3. However, secondly, it is in any event clear in my view that the proposed testing of Mr Wells' DNA is for the intended purpose of the investigation into an offence, being the offences of which Mr Jamieson has been convicted. In the absence of a qualifying definition, or an express or implied restriction upon the ordinary meaning of the word "investigation" as used in the expression "the investigation of…an offence against the law of this State" in s 97(1A)(a), the word in its ordinary or natural meaning must extend to include an investigation by or on behalf of Mr Jamieson into the offences committed against Ms Balding. There does not appear to be any basis for reading the terms of the subsection in such a way that it refers only to an investigation being conducted by or at the behest of the police. The section does not say so in terms and the context does not suggest it. In addition, contrary to the Crown's submission, s 97(1A) does not refer to or restrict or qualify the relevant investigation as an "ongoing" investigation, an adjective that appears to have its origin in the request made by the NSW Police to the Queensland Police.
4. Thirdly, s 115 of the Crimes (Forensic Procedures) Act provides relevantly as follows: 115 Taking, retention and use of forensic material (1) Taking, retention and use authorised by laws of other jurisdictions Nothing in this Act affects the taking, retention or use of forensic material, or information obtained from forensic material, if the taking, retention or use of the material is authorised by or under another law of the State or a law of the Commonwealth. (2) Forensic material, or information obtained from it, that is taken in accordance with the law of another State or a Territory may be retained or used in the State for investigative, statistical or evidentiary purposes even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Act relating to the carrying out of forensic procedures.
5. Mr Wells' DNA is forensic material that was taken in accordance with the law of Queensland. So much may be inferred, and is not otherwise in contest, from the terms of the Queensland Police response recorded at [70]. Section 115(2) in terms authorises the retention and use in New South Wales even if its retention or use would otherwise constitute a breach of, or failure to comply with any provision of the Crimes (Forensic Procedures) Act relating to the carrying out of forensic procedures. The compound noun "investigative purposes" would in my opinion encompass, consistently with my interpretation of "investigation" in s 97(1A) of the Crimes (Forensic Procedure) Act, Mr Jamieson's purposes in the investigation by him of the crimes committed against Ms Balding.

Issue 2

1. Section 97 of the Crimes (Appeal and Review) Act would in my opinion clearly apply to Mr Wells' DNA and overrides any express or implied restriction upon the use of his DNA material that may otherwise appear to exist. To start with, s 97(1) of that Act applies to biological material that is in the possession or control of members of the NSW Police Force or members of any other authority of the State in connection with an offence for which the person has been convicted. "In connection with" does not limit or restrict the biological material to Mr Jamieson's DNA. As the email sequence makes plain, the NSW Police hold Mr Wells' DNA "in connection" with offences committed by Mr Jamieson. The request for Mr Wells' DNA profile was made "as it relates to an ongoing homicide". The expressions "in connection with" and "in relation to" must mean the same thing in this context.
2. In this case, as Mr Jamieson contends, the trace DNA on the bandana is clearly "biological material' retained in connection with offences for which he has been convicted. He seeks only that the Forensic & Analytical Science Service undertake further testing of the bandana against the profile of Mr Wells' DNA. Section 97(2) of the Crimes (Appeal and Review) Act specifically contemplates such a request, consistently with the recommendations of the review that abolished the DNA Review Panel.
3. I understand that, on one view, s 97 is capable of being read more narrowly so as to be limited to requests by a convicted person or their legal representative for DNA testing of retained biological material solely for the purpose of obtaining DNA profiles from that material without comparing, or testing them, against other profiles such as reference samples from suspects or persons of interest. However, as Mr Jamieson has submitted, such an interpretation is inconsistent with the recommendations of the review which abolished the DNA Review Panel, and in fact, contradicts them. More fundamentally, in my view, such an interpretation is inconsistent with the purpose of the Crimes (Appeal and Review) Act and deprives the section of the force it should be accorded in the context of Part 7 of that Act as a whole. Section 97 is not in my view limited or restricted to permitting or enabling a convicted person to ascertain only his or her own position with respect to DNA recovered from biological material that is connected to the offence for which he or she is convicted. Mr Wells' DNA is in my view in the possession or control of members of the NSW police force in connection with an offence for which Mr Jamieson has been convicted. By reason of the path taken by Mr Wells' DNA to the NSW police, it must be in the possession of the NSW police in connection with an offence committed by Mr Jamieson.
4. "DNA testing" should be read as contemplating both the obtaining of DNA profiles from any retained biological material, and comparing those profiles with, or testing them against, any known DNA profiles. To interpret the provision otherwise would potentially render any request by a convicted person under the section pointless. The convicted person or his or her legal representative would not have a DNA database or a set of DNA profiles or reference samples from suspects with which to compare any profile identified on retained biological material.
5. Such an interpretation of "DNA testing" is also consistent with the terms of s 96 of the Crimes (Appeal and Review) Act. In s 96(3), one of the exceptions to the duty of police to retain biological material is where: (d) The material has already been subject to DNA testing and the testing indicates that it relates only to the convicted person concerned.
6. Mr Jamieson, through his legal representatives, has made a request of the Commissioner of Police to provide retained biological material in accordance with s 97(2) of the Crimes (Appeal and Review) Act and has sought an order from the Court pursuant to s 97(4) of the Act that the Commissioner comply with the request made to her. It is not in contest that the conditions referred to in s 97(5) of that Act have been satisfied.
7. The definition of "biological material" in s 74 of the Crimes (Appeal and Review) Act would extend to and include the trace DNA on the bandana and the DNA information relating to Mr Wells retained by the Commissioner of Police.

Issue 4

1. The Crown contends that s 97(8)(a) of the Crimes (Appeal and Review) Act precludes the Commissioner from providing such information in certain circumstances. That sub-section is in these terms: (8) Nothing in this section permits- (a) the Commissioner of Police (or the head of any other authority of the State) to provide information that may reveal the identity of a person other than the convicted person in connection with the offence for which he or she was convicted, …
2. "Reveal" means to make previously unknown or secret information known to others. Mr Wells' identity is neither unknown nor secret. It is certainly not unknown to or a secret from Mr Jamieson. I do not accept that there is in the circumstances of this case any prohibition or restriction upon the provision to Mr Jamieson or his legal advisers of the material that is sought.
3. Properly understood, the sub-section directs attention to the identity of the proposed recipient of the particular information. So, for example, the provision of information containing reference to the identity of a named person to a person who was already aware of that identity could not amount to or constitute a revelation of that information. This is such a case.

Conclusions

1. In these circumstances, I consider that I should draw the following conclusions on the principal issues raised: 1. Section 97 of the Crimes (Forensic Procedures) Act 2000 does not preclude the Forensic Analytical & Scientific Service from using information about Mr Wells' DNA profile obtained from the Queensland Police Service for the purpose of DNA testing under s 97 of the Crimes (Appeal and Review) Act. 2. Section 97 of Crimes (Appeal and Review) Act applies to Mr Wells' DNA profile information held by the Commissioner of Police. 3. The testing sought by Mr Jamieson "of the biological samples from areas i, ii, v, vii, viii, xv and xvi of the bandana referred to in Ms Franco's statement dated 30 November 2023 against the DNA profile of Mr Wells" does involve "DNA testing" of "retained biological material" in the terms of s 97 of the Crimes (Appeal and Review) Act. 4. Section 97(8)(a) of the Crimes (Appeal and Review) Act does not preclude the Commissioner of Police from providing Mr Jamieson with information or "results" relating to individuals other than him.
2. I consider that a compliance order should be made by me under s 97(5) of the Crimes (Appeal and Review) Act requiring the Commissioner of Police to comply with Mr Jamieson's request because: 1. several of the offences for which Mr Jamieson was convicted were punishable by imprisonment for life or 20 years or more and he in fact received a life sentence: s 97(5)(a)). 2. Mr Jamieson's claim of innocence may be affected by DNA information obtained from biological material retained by members of the NSW Police: s 97(5)(b). 3. Mr Jamieson is still subject to the sentence imposed for the offences and remains in custody: s 97(5)(c).
3. I also consider that to the extent that the Court has a discretion whether to make the compliance order, the interests of justice and the public interest in maintaining the integrity of convictions call for the testing to be undertaken. The same interests call for the requested testing to be undertaken. The results of any testing or comparisons that may be made as the result of my orders taking effect will not foreclose the outcome of Mr Jamieson's Part 7 application, but a failure to conclude the investigation by conducting the tests and making the comparisons would in my opinion create an enduring sense of community unease.

Orders

1. I will direct the parties to bring in short minutes of orders to reflect my reasons. It may be necessary at that time to regularise the procedural aspects that will potentially require attention having regard to the summons filed by Mr Jamieson on 20 January 2025 in proceedings 2025/23637 and the terms of the orders that he seeks.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2025