R v Fleming

COUNSEL : T. Hoyle SC (Crown) M. Austin (Accused)

SOLICITORS : S.C. Kavanagh (Crown) Nyman Gibson Stewart (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT (Re: admissibility of DNA evidence) 1 HIS HONOUR: The accused has made an application for an order that DNA evidence intended to be introduced by the Crown be excluded pursuant to s 138 of the Evidence Act. 2 The accused has pleaded not guilty to the charge of the murder of the deceased, Joanne Hatty, on 18 February 1984. On post mortem examination vaginal swabs were taken from the deceased. No person was charged in 1984 although the accused was one of two suspects at that time. 3 In October 2004 a task force was formed to reinvestigate the death of the deceased, and of the two suspects identified twenty years previously, the other suspect was eliminated after DNA analysis. 4 Det. Sgt Bryant became involved in the investigation and, after the accused was located in Victoria, attention was given to obtaining a DNA sample from him. The witness made inquiries which established that the accused was not recorded on any DNA database in Australia. There was no legislative framework in Victoria pursuant to which a sample could be obtained from the accused, and the assistance of the Victorian police was sought to obtain a covert DNA sample. The accused was found to be living in an isolated rural area and to be wheelchair bound. Det. Sgt Bryant had discussions with Victorian Police, and the assistance of Sgt Vick of Koroit was engaged. The accused was known to him and had had a number of conversations with Sgt Vick some twelve months earlier over complaint about a drover and the alleged rudeness to the accused of one or more police officers. Sgt Vick attended the accused at his residence on 9 December 2004 and requested that he draw a sketch indicating the camping place of the drover when he had been in the area twelve months earlier. The accused cooperated. Spittle fell onto the sheet of paper on which the accused sketched the area. The sketch was taken by Sgt Vick and passed through other hands until eventually it was passed on to Ms Neville of the Department of Analytical Laboratories at Lidcombe. The sheet of paper received at the laboratory on 16 December 2004 led to the recovery of a DNA profile which was the same as the partial DNA profile recovered from the vaginal swabs of the deceased. This partial DNA profile could be expected to occur in approximately one in thirty-nine million people in the general population. 5 Following the analysis of the sheet of paper, Sgt Bryant applied for and obtained an arrest warrant for the accused. He proceeded to Victoria, where the accused was arrested and then extradited to New South Wales. Having been charged with the murder of the deceased on 19 January 2005, a further forensic procedure was carried out by police officers, and a DNA profile revealed by that further analysis matched the DNA profile taken from the vaginal swab. 6 At the time that the covert sample was taken from the accused at Willatook, Koroit, there was no Victorian or interstate legislation in place pursuant to which a court order could have been sought to take a DNA sample from the accused. There is unchallenged evidence in the statement from Mr Tosh (Exhibit C) that although there was provision in the Crimes (Forensic Procedures) Act pursuant to which the New South Wales Attorney General might have entered into an arrangement with other Australian police jurisdictions to provide for forensic procedures, there was no relevant arrangement in place. 7 The Victorian Government Solicitor had delivered an advice to Victorian Police about the lawfulness of taking covert DNA samples in November 2003. A copy of that advice was placed before the Court and was not challenged. In summary, the advice of the Victorian Government Solicitor was to the following effect: "(i) The covert obtaining of DNA samples is outside the ambit of the [Crimes] Act. (ii) The covert obtaining of DNA samples is not unlawful but may be regarded by the courts as improper and/or unfair police conduct and, in those circumstances, any evidence derived therefrom is likely to be excluded. (iii) The results from a covert DNA sample have limited evidentiary value but may have significant investigative value. (iv) The police may covertly obtain DNA samples in certain appropriate cases for investigation value subject to certain safeguards. (v) Where it is determined that a covertly obtained DNA sample is no longer relevant to current investigation, the covert DNA sample including any related material and information must be destroyed forthwith." 8 Before the DNA sample was obtained from the accused in 2004, Sgt Nichols of the Victorian Police had been attempting surveillance of the accused but had decided, because of the remote area where the accused lived, that it would be almost impossible to undertake surveillance successfully. It was after his discussion then with Sgt Bryant that the services of Sgt Vick were enlisted. 9 Sergeant Bryant was cross examined on his statement on the present application. I accept the evidence that he gave in this Court that he did not know exactly how Sgt Vick was going to obtain a DNA sample, but he was alert to the possibility that it could be by some kind of trick. It also emerged in cross examination that in December 2004 Sgt Bryant was aware that there was an outstanding warrant for the accused which had not then expired. This was a warrant issued after the accused failed to appear at court in relation to an offence charged in New South Wales of assault occasioning actual bodily harm. It would have been possible to have had the accused arrested on that outstanding warrant and returned to New South Wales. Once here, application could have been made under the Crimes (Forensic Procedures) Act 2000 for the taking of a sample by buccal swab. 10 It was put to Sgt Bryant in cross examination that he did not adopt that procedure because he was not confident that any application to the court for an order under that Act would succeed if sought after the accused returned to this State. Sergeant Bryant's response was that that was not the reason he did not seek to have the accused arrested in Victoria for that earlier failure to appear some twenty years previously. Rather, Sgt Bryant said that he did not follow that procedure because he did not think of it. He said he had made inquiries in relation to the police brief as to that matter in October 2004, and all he had been able to locate were some negative photos of the crime scene and some photos of the alleged victim. 11 Mr Austin submitted that Sgt Bryant ought not to be believed on that issue. However, having observed the police officer closely as he gave his evidence, I concluded that his evidence was to be believed. It is not to be overlooked that Sgt Bryant was not involved in the investigation into the assault occasioning actual bodily harm in 1984. He had no appreciation as to what evidence there was available twenty years later to support the police charge of assault occasioning actual bodily harm. All he knew was the outcome of the inquiries he had made in October 2004, to which I have previously made reference. Sergeant Bryant was engaged in 2004 in the reinvestigation into the death of the deceased, and that was the context in which he was endeavouring to obtain a sample from the accused. 12 I accept that it was Sgt Bryant's understanding that whilst the accused was living in this remote area in Victoria there was no legislation extending to that location pursuant to which he could make application with a view to obtaining a DNA profile. Moreover, I accept that the witness, having reviewed the accused's residential patterns, considered the accused to be a flight risk who might react to a renewed police interest in him. The accused had lived in most Australian States and in New Zealand and he had failed, to Sgt Bryant's knowledge, to appear in court on the assault occasioning actual bodily harm charge in 1984. 13 This brings me to a consideration of s 138 of the Evidence Act. The section provides: " 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 14 It is to be observed that what triggers the operation of the section is that evidence was obtained "improperly", or "in contravention of an Australian law", or "in consequence of an impropriety", or in consequence of "a contravention of the Australian law". 15 The evidence in question was not obtained in contravention of an Australian law or as a consequence of any such contravention. I accept the Crown's submission that the taking of the evidence involved no contravention of the Crimes (Forensic Procedure) Act 2000 because that Act does not apply to the taking of a forensic procedure outside the State of New South Wales. Even if it did, the sample was not taken as a result of a forensic procedure being "carried out on" the accused for the purposes of s 82 of that statute: see R v Kane (2004) 144 A Crim R 496 and R v White [2005] NSWSC 60. The real issue is whether or not that sample taken from the sheet of paper on which the accused made his sketch was obtained improperly. 16 Impropriety is not defined for the purposes of s 138 of the Evidence Act, and it was submitted by the Crown that the conduct of the police here involved no breach of the law and did not result in the accused doing anything he was unwilling to do. Attention was drawn to the much cited passage in the judgment of Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen (1995) 184 CLR 19 at 37: "The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged." (Emphasis added) 17 The Crown submitted that the state of impropriety contemplated in Ridgeway had not been reached. There was no illegal conduct; there was not such a degree of harassment or manipulation as was clearly inconsistent with minimum standards of acceptable police conduct. 18 The Crown also drew attention to the decision in Robinson v Woolworths Limited (2005) 64 NSWLR 612 and to the following dicta of Basten JA, with which the other members of the court agreed: "23 It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced." 19 It was submitted that there was no police behaviour here that offended the concept of impropriety as discussed by Basten JA. 20 I accept, as Mr Austin submitted, that the accused was here tricked into cooperating with Sgt Vick, but, having reflected on what was said in Ridgeway, and in Robinson, I am not persuaded that the borderline into conduct of impropriety was crossed. It is, of course, for the accused to establish impropriety: R v Coulstock (1998) 99 A Crim R 143 at 147. However, assuming for the present that the police conduct ought to be regarded as improper, I consider the desirability of admitting the evidence here challenged outweighs the undesirability of admitting that evidence by reason of the way in which it was obtained. Regard must be had pursuant to s 138(3) to the undermentioned matters where evidence is improperly obtained:

(i) The probative value of the evidence . The probative value of the evidence obtained is prima facie high. I referred earlier to the reports of Ms Neville and the conclusion expressed in those reports (Exhibit J on this application) speaks for itself.

(ii) The importance of the evidence in the proceedings . It is common ground here that the evidence of the DNA analysis is of vital importance to the prosecution case. It is common ground that the prosecution depends upon this evidence, if it is to be accepted, in order to establish a case beyond reasonable doubt.

The crime charged against the accused is of the gravest kind, being the crime of murder.

Assuming for present purposes that there was impropriety as contemplated by s 138(1), I accept the submission by the Crown that the impropriety was other than serious in that the accused was not informed that he was being asked to write on the paper so that a DNA sample could be obtained. It is to be borne in mind that he was under no compulsion to cooperate with the police and no threat or promise was made to encourage his cooperation. The spittle that fell was not anticipated or induced.

(v) Whether the impropriety or contravention was deliberate or reckless.

The conduct of the police was deliberate in the sense that Sgt Vick sought the sketch for the specific purpose of obtaining a DNA sample, but I do not accept that there was any deliberate attempt to avoid the provisions of any statute.

(vi) Whether the impropriety was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights

It was not contended that there was any impropriety relevant for the purposes of s 138(3)(f) of the Evidence Act.

(vii) Whether any other proceeding is likely to be taken in relation to the impropriety.

There is no likelihood of any other proceeding being taken.

(viii) The difficulty of obtaining the evidence without impropriety.

The Crown acknowledged that the police had no means available to compel the accused to provide a sample of his DNA in Victoria at the time that the sample was obtained. 21 In a case where there is impropriety enlivening s 138, the court is concerned to balance public interests, and it is appropriate to record what McClellan CJ at CL said recently in R v Camilleri [2007] NSWCCA 36. The other members of the court, Bell J and Howie J, agreed with the Chief Judge, who said: "28 However, s 138 requires consideration not only of the effect of the action but also the motivation of the person who carries out that action. Section 138 operates in relation to evidence that was obtained improperly or in contravention of a relevant law or in consequence of an impropriety (subs (1)). Subs (3) directs the court to consider the gravity of the impropriety or contravention s 138(3)(d) and whether the impropriety or contravention was deliberate or reckless s 138(3)(e)… 31 In my view the approach which his Honour took was not appropriate. As Howie J made plain in R v EM (2003) NSWCCA 374 at [74]-[78] s 138 is concerned with balancing public interests. The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM Howie J said at [74]: 'The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused.'… 35 This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission." 22 Mr Austin made reference also to s 137 as a basis for exclusion but I do not consider that the probative value of the DNA evidence is outweighed by the danger of unfair prejudice to the accused. 23 I am fortified in the conclusion I have reached by what McClellan CJ at CL said in Camilleri. I conclude in the present case that whether or not the circumstances in which the sample was taken are to be regarded as improper, the evidence resulting from the sample taken should be admitted, having regard in particular to its high probative value and the gravity of the offence charged. **********

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