R v Cairney (No 20)

I am not satisfied, in the context of a murder trial that has gone for as long as this particular one, that it would not otherwise be possible to conveniently examine the evidence of Detective Senior Sergeant Moon because of the volume and complexity of the documents. Accordingly, I am not satisfied that the condition that animates s 50 of the Evidence Act 1995 (NSW) (Evidence Act) has been made good.

However, I see no reason why the evidence cannot be given by reference to the expert certificate, marked as MFI-54 in its unredacted form in the trial, of Dr Summerell, being the relevantly qualified expert in forensic biology and DNA findings, provided that the matter the subject of an agreed exclusion between the parties is redacted from that document. To the extent to which there needs to be further exploration of the significance of this evidence, then it is the case that Dr Summerell is here, and she can give oral evidence about the matters, including by way of cross-examination, in the usual way.

It would seem to me that the description of the swabs taken by crime scene officers that are contained in Dr Summerell’s report are admissible under s 60 of the Evidence Act. To the extent there may be an issue about the truth of those matters which could be the subject of an application made under s 136 of the Evidence Act, I am of the view that the crime scene evidence already given sufficiently establishes the basis for those descriptors in relation to the various matters contained in the expert's report.