KOUSHAPPIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 26 (1 February 2007)

KOUSHAPPIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 26 (1 February 2007) - WASCA 2007 case summary — Zoe

[109]

"A trend is emerging during trials in this State to challenge the evidence of forensic scientists on the basis that the forensic scientist who wrote the report and then gives the evidence at trial is not the same person who originally tested the item for DNA. The evidence is being challenged on the basis that it is hearsay.

A range of people with different qualifications participate in DNA testing and the production of the final report. The DNA testing and reporting process is made up of scientists in charge, team leaders, forensic scientists, scientists, technicians, property officers, laboratory assistants and clerical officers. The scientists and technicians conduct the examinations and test the evidence under supervision. They perform all DNA analysis procedures. The scientist in charge, team leaders and forensic scientists then collate and review all the results, make interpretations, calculate statistics, issue reports, and peer-review the work of others. The difficulty arises because the final report is not a summary of the raw data received from the scientists and technicians; it is an analysis of that data that is interpreted in light of statistics as well as the specific fact scenario. The report is a whole package and is contributed to by a range of people. To ask the laboratory to change its procedures to accommodate this technicality in the law would mean having the forensic scientist do the initial testing and the analysis, as well as writing the final report. This would lead to a significant amount of extra work, the redundancy of a large number of the laboratory staff and resultant inefficiency. In addition, if the results were unable to stand alone and were dependent on the person who tested the evidence to verify them, there would be problems when staff went on leave, resigned, moved interstate or overseas or died.

The Western Australian Evidence Act 1906 is currently silent on this issue. Queensland and the Northern Territory have amended their legislation to accommodate this procedural issue. This Bill has been modelled on those jurisdictions, by establishing a standard format for presenting DNA evidence in court by way of a certificate. The certificate is evidence of when the item was received at the laboratory, of when it was examined, that a DNA profile or a number of DNA profiles were obtained and that all quality assurance procedures for dealing with the item were complied with. The Bill sets out a standard procedure for cases in which the contents of the certificate are to be challenged.

This Bill will produce two major benefits: firstly, enhancing the administration of justice by ensuring that court time is not wasted by having to call witnesses to validate an accepted testing process; and, secondly, restoring efficiencies in laboratory testing by removing the existing burden on the staff of DNA testing labs who are currently required to attend court frequently to give evidence. I commend the Bill to the House."

[183]

"Firstly, whenever you are considering the matters, please bear in mind, as I told you at the very beginning, you must start from the point that Mr Koushappis is presumed innocent. He is innocent of these charges, he is presumed innocent, until it's proven otherwise. Any person who stands trial is presumed to be innocent. That has always been the law. It's just this basic presumption we have. The only people who can remove that presumption of innocence are you, the members of the jury, by returning a verdict of guilty and you can't return that verdict of guilty unless you are satisfied beyond a reasonable doubt that evidence has been produced in this trial which proves that Mr Koushappis is guilty of the three offences charged, so please bear that in mind.

In this particular case Mr Koushappis did give evidence. In criminal trials an accused person doesn't have to give evidence, but in this trial he did so. Because he submitted himself to cross-examination - he gave evidence. He was cross-examined by Mr Mactaggart. You saw him in the witness box. You saw how he gave his evidence. That's very important but it doesn't take away that basic presumption of innocence, so please bear that in mind. There's no detraction from that important principle. It still remains for the state [sic] - or the state [sic] still has the onus of proving the charges that it presents against the accused and he is presumed to be innocent until the charge or charges are proved beyond a reasonable doubt.

If you were to believe all the evidence of Mr Koushappis, if you believed every single thing he said then you would acquit him. Even if you didn't believe him, you wouldn't find against him on an issue, if his evidence did give rise to a reasonable doubt. It's every [sic very] important for you to remember that it's the state [sic] who has to prove the charges. The general rule is that it has to be proved beyond a reasonable doubt. If the evidence gives rise to a reasonable doubt then the accused man gets the benefit of that reasonable doubt.

So what we need to do is to have a look at what the state [sic] must prove before these charges can be found to have been made out ..."

[214]

"I put it to you that when search warrants are executed and there is a video conducted of the process the video is kept on during the - from the commencement of the search to the conclusion of the search so that there can't be any suggestion that the integrity of the scene or what occurred happened?---You may have seen that. I mean, in, say, the seven years since video has been on I have never done it like that, not once.

You never do it like that?---When every search I've ever been involved in has never ever been done like that.

So what is the - why would you bother doing a video if you are not going to video the whole scene and you are only going to video when some body says, 'Look, I found something, here it is,' and puts it front of you and then the video is turned on? What is the point in that?---I mean, some searches that actually get conducted can last 12, 14 hours.

That's right, yes?---So it's not practical to have a video constantly running that whole time. So basically when something is located, and there's usually an independent person there through the whole search watching as we're searching each room - or maybe not independent but could be the accused or someone else from that household watching us search each individual room.

So you tell me. If the purpose of a video is to maintain the integrity of the scene and to maintain the integrity of the search, how does it help if it's switched on and off? I don't think you have answered my question. How does it assist if we can't see whatever it is of interest where it is, where it was found or located and before it's perhaps even moved or touched? How can it assist?---All I can go on is what our procedure is which is what the WA Police Service procedure is; that we video - the guys do the search and it's conducted in front of someone from the household or an independent person and as they find something, it is then - the search is stopped, we come in with the video, turn the video on and then they talk about the item that has been located.

So am I right in just what you have said, that you are not even necessarily in the room when something is located? You are just simply somewhere else or somewhere maybe in the central location and somebody says, 'Oi, come in here, come into the bathroom. I've found something of interest.' Is that really what happens?---Usually I stand outside.

You are outside?---Yep.

You are not even - so you are not recording anything at all?---No."

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Judgment (293 paragraphs)

KOUSHAPPIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 26 (1 February 2007)

Legislation Cited (7)

Cases Cited (20)