Rice v R (No 1)

Colin Ray Rice (“the accused”) has pleaded not guilty to an indictment alleging that he conspired to murder Dusan Krstic. His trial, and those of three co-accused, is to commence before me on 20 October 2014.

In support of its case, the Crown relies upon evidence of the presence of the accused’s DNA on a cigarette butt found in an abandoned Holden Station Wagon (“the vehicle”) said to have been used by the accused in the course of the alleged conspiracy. By notice of motion dated 8 October 2014 the accused seeks the exclusion of that evidence.

The following material was tendered by counsel for the accused in support of the application:

The Crown tendered the following material:

It should be noted that Exhibits C, D, E and 1 (and, to a limited extent, Ex 2) related to the continuity of the cigarette butt following its seizure. After the commencement of the hearing, counsel for the accused abandoned reliance upon that issue in support of the application.

In order to put the application into its proper context it is necessary to set out the terms of the Crown Case Statement (Ex 3) which has been filed in the proceedings:

On 27 September 2007 Michael Billingsley, who was the owner of the vehicle, reported it stolen to police. The vehicle was recovered on or about 30 September 2007. When notified of its recovery, Mr Billingsley went to view the vehicle. At paragraph 7 and following of his statement he said:

On 1 October 2007 Ms Minchin, who was then a police officer, attended the vehicle. Her field notes of that day (Ex B) record the following:

Those notations were accompanied by a small diagram depicting the area within the vehicle in which the cigarette butt was found.

In paragraph 7 of her statement (Ex 2) Ms Minchin explained how she found the cigarette butt:

The photographs taken by Ms Minchin are Ex G. They depict (inter alia) a pile of rubbish on the front passenger side floor of the vehicle, including the “Red Rooster” bag to which Ms Minchin referred in her statement. The cigarette butt can be clearly seen within that pile. For reasons which are not explained Ms Minchin seized the cigarette butt but not the remaining items of rubbish.

The relevant COPS entry (Ex F) noted the following:

On 3 October 2007 Mhorag Campbell, a Forensic Biologist employed by the NSW Forensic and Analytical Science Service, received the cigarette butt. On 24 December 2012 she received a buccal sample which had been taken from the accused. Having conducted an analysis Ms Campbell expressed the following opinion in a certificate dated 14 January 2013 (part of Ex H):

Under the heading “Expected in occurrence in general population” Ms Campbell reported:

It is agreed between the parties that the cigarette butt was destroyed at some time between 1October 2007 and August 2008.

Counsel for the accused submitted that the evidence of the DNA analysis of the cigarette butt should be excluded, either pursuant to s. 137, or alternatively pursuant to s. 135, of the Evidence Act 1995 (“the Act”). That submission was advanced on three bases.

Firstly, counsel submitted that the destruction of the cigarette butt deprived the accused of the opportunity to have it independently tested. It was submitted that this created an unacceptable risk that the jury would ascribe undue weight to the evidence and that no direction, irrespective of the terms in which it might be given, would be sufficient to ameliorate the prejudice which would arise as a result. Counsel further submitted that such prejudice was heightened by the fact that apart from the evidence of the witness Taylor, the evidence of the accused’s DNA on the cigarette butt was the only evidence linking him to the car that was allegedly used in furtherance of the conspiracy.

In advancing this submission, counsel referred me to a number of decisions in which evidence had been lost or destroyed, resulting in an accused person losing the opportunity to test or examine such evidence. Counsel submitted that in the present case, the danger of unfair prejudice outweighed the probative value of the evidence because the accused had been permanently deprived of an opportunity to explore an avenue of inquiry which might have led to his acquittal.

Secondly, counsel submitted that there was a clear possibility that the evidence had been contaminated. He pointed out, in particular, that Mr Billingsley had reported the vehicle stolen on the evening of 27 September 2007 and that it was not located by the police until 3 days later. He also relied upon the fact that according to the COPS entry all of the windows and doors of the vehicle were open when it was first found by the police.

Thirdly, counsel submitted that the danger of unfair prejudice arose because the police, for reasons which remain unknown, had not seized and analysed the other items contained in the rubbish pile found on the passenger side floor of the vehicle. Counsel submitted that the police investigation had not been conducted completely or appropriately, as a consequence of which it now became a “guessing game” for the accused as to how those items came to be in the vehicle.

In the event that I came to the conclusion that the evidence should be admitted, counsel submitted that I should, in due course, direct the jury in respect of the disadvantage at which the accused had been placed as a consequence of the destruction of the cigarette butt.

It should be noted that in answer to a specific query from me, counsel for the accused made it clear that he would mount no direct challenge to the reliability of the DNA evidence. He also made it clear, at least as far as his second and third submissions were concerned, that he was not basing his application on the proposition that the evidence, if admitted, would be liable to be misused by the jury in some way. In that latter respect counsel said (at T10 L8):

The Crown submitted that notwithstanding the destruction of the cigarette butt, the opportunity for the applicant to properly test the evidence had not been lost. He submitted that it remained open to the applicant to examine the records of the laboratory produced under subpoena (Ex H) and test, in the course of cross-examination, the process used to extract, analyse and profile the DNA. The Crown submitted that it remained open to the accused to avail himself of this opportunity with the assistance of an independent expert if he wished to do so.

As to the second and third bases of the application, the Crown submitted that it remained open to counsel for the accused to cross-examine Ms Minchin, and any other relevant witness, about the circumstances in which the vehicle was found, as well as the circumstances in which the cigarette butt was seized. The Crown submitted that there was similarly no restriction upon counsel cross-examining Ms Minchin about her failure to seize the other items in the vehicle. All of these matters, the Crown submitted, were able to be the subject of counsel’s address to the jury.

It was submitted that in all of these circumstances, no danger of unfair prejudice arose and the evidence should be admitted. The Crown did not argue against the proposition that in that event, it would be appropriate to direct the jury as to the disadvantage at which the accused had been placed as a consequence of the destruction of the cigarette butt.

Section 135 of the Act is in the following terms:

Section 137 is in the following terms:

The primary submission of counsel for the accused was that the evidence should be excluded pursuant to s. 137. In the event that I declined to do so, counsel invited me to consider the provisions of s. 135. The terms “unfairly prejudicial” (in s. 135) and “unfair prejudice” (in s. 137) mean the same thing: Ainsworth v Burden [2005] NSWCA 174 per Hunt AJA, (Handley and McColl JJA agreeing).

Section 137 mandates the rejection of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The term “probative value” is defined in the Dictionary to the Act in the following terms:

Along with other evidence relied upon by the Crown, the evidence of DNA analysis, if accepted, is capable of placing the accused in the vehicle which, on the Crown case, was used for the purposes of surveillance as well as for the purposes of carrying the alleged gunman to and from the address of the target of the conspiracy. In these circumstances, the probative value of the evidence is high. I did not understand counsel for the accused to argue to the contrary.

For the purposes of s. 137, the danger of unfair prejudice may arise in a variety of ways, including where the admission of the evidence may lead to the jury misusing it by (for example) adopting an illegitimate form of reasoning, or giving it undue weight: R v Yates [2002] NSWCCA 520 at [252] per Wood CJ at CL, Hulme and Buddin JJ agreeing.

For the reasons that follow I am unable to accept the submissions of counsel for the accused that the evidence should be excluded.

I turn firstly to the danger of unfair prejudice which is said to have arisen from the destruction of the cigarette butt. What the accused has lost as a consequence of that destruction is the opportunity to have the item independently examined and tested. In other words, he has lost the chance to explore an avenue of enquiry. What the results of any such testing may have been are not known. Whether the result would have directly contradicted the proposition that the accused’s DNA was found is a matter of speculation: R v Helmling (NSWCCA 11 November 1993 unreported.

Importantly, the accused has not lost the opportunity to challenge the evidence of analysis. The laboratory notes of the process of extraction and profiling of the DNA are available. It remains open to the accused to test the analysis conducted by Ms Campbell. As the Crown pointed out, it is open to him to do so with the assistance of an independent expert.

In all of these circumstances, the destruction of the cigarette butt does not give rise to a danger of unfair prejudice which outweighs the probative value of the evidence. I am fortified in that view by the observations of Nettle JA (with whom Neave and Tate JJA agreed) in El Bayeh v The Queen [2011] VSCA 44; (2011) 208 A Crim R 541 at [36]; 552-553:

Although his Honour was considering the authorities in the context of an appeal against a refusal to grant a permanent stay of a trial, it is clear that his observations extended to an application of the nature of that presently made by the accused. As a consequence, such observations are instructive.

R v Lobban [2000] SASC 48 was one of the authorities to which Nettle JA referred. In that case Martin J (with whom Doyle CJ and Bleby J agreed) noted (at [22]; 29) that the submissions made to the primary judge had been directed to the discretionary exclusion of the evidence in question. His Honour then said (at [24]; 29):

In R v Slattery [2002] NSWCCA 367 the Court of Criminal Appeal considered the admission, over objection, of ballistics evidence in circumstances where the relevant firearm had been destroyed. Having admitted the evidence, the trial judge made reference, in his summing up, to the fact that the appellant was disadvantaged by the destruction of the firearm. Smart AJ (with whom Hodgson JA and Hidden J agreed) found (at [81]-[82]) that what the trial judge had said to the jury in the course of his summing up had failed to emphasise, and had in fact understated, the disadvantage to which the appellant had been put as a consequence of the destruction of the evidence. Importantly however, it was not suggested, and the Court did not conclude, that the evidence had been wrongly admitted. Rather, the conclusion was reached that a far more comprehensive direction had been required on the part of the trial judge: see [86]; [93-96]; [112].

In the present case:

In these circumstances, and bearing in mind that what the accused has lost is an opportunity, I am not satisfied that the destruction of the evidence results in the probative value of the evidence being outweighed by the danger of unfair prejudice.

Similarly, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice, either as a consequence of the circumstances in which the cigarette butt was seized or as a consequence of the fact that other items found in the vehicle were not seized. The suggested contamination of the evidence is necessarily speculative. To the extent that counsel wishes to pursue that issue he is free to do so, just as he is free to pursue the reasons why other items found in the vehicle were not seized. No doubt all of these matters will be canvassed in the cross-examination of Ms Minchin, and perhaps other witnesses called by the crown. Counsel will also have the opportunity to make submissions to the jury arising from that evidence. In these circumstances, I am unable to accept the submission that the evidence, if admitted, will assume “an air of infallibility”. It is important to bear in mind that counsel for the accused (as set out in [22] above) expressly disavowed the proposition that the matters relied upon in respect of the second and third bases of his application gave rise to any danger of the evidence being misused by the jury if it were admitted.

Further, and for substantially the same reasons, the circumstances of the present case do not warrant the exercise of the discretion contained in s. 135 to exclude the evidence. The probative value of the evidence, which I regard as significant, is not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused.

I will hear the parties further in due course as to the form of an appropriate direction, the essence of which was considered by the Court in Slattery (supra).

For the reasons I have given the evidence should not be excluded.

Bearing in mind the fact that the accused is yet to stand trial, this judgment should be suppressed until such time as his trial is concluded.

I therefore make the following orders: