Just two cases have been fully appealed under new ‘right to appeal’ provisions now in SA law, and soon to be introduced to Tasmania. Barbara Etter analyses decisions so far.
SA Case of R v Drummond – Further Right to Appeal – Fresh Evidence – Analysis
By Barbara Etter APM*
The 80-page decision of the SA Full Court of the Court of Criminal Appeal decision in R v Drummond (No.2) [201] SASCFC 82 (5 June 2015), handed down on that day, is a critical development in the law and interpretations resulting from the newly-introduced method of being able to appeal introduced to Australia by South Australia in mid-2013.
This important case follows on from the first decision on the SA’s further “right to appeal” law, which involved the Henry Keogh murder conviction.
In December 2013, a Judge of the SA Supreme Court refused Drummond permission for a second appeal against conviction. The defendant sought permission for a second appeal from the Court of Criminal Appeal.
The case deals with the important issues of the further right to appeal legislation in SA, what constitutes “fresh” evidence, particularly under the SA legislation, obligations of expert witnesses, the concept of “reasonable diligence”, disclosure by the Crown of material evidence, what constitutes a substantial miscarriage of justice and the issue of DNA contact testing.
The Court of Criminal Appeal was constituted by The Honourable Justice Gray, the Honourable Justice Peek and the Honourable Justice Blue. By a 2 to 1 decision, the attempted kidnapping conviction in Drummond was quashed and a new trial ordered.
We have now seen two cases go before the courts in SA and both cases have been identified as involving a substantial miscarriage of justice. However, both have also ended in an order for a retrial. I am attending and presenting at an international evidentiary law and forensic conference at Adelaide University next month and the case could well be discussed at that forum. I am particularly interested in the matter as Tasmania, my home jurisdiction, is currently finalising a Bill on the further right to appeal, largely based on the SA legislation. The Bill may be introduced by the Attorney-General at the end of this month.
My analysis of the Drummond decision therefore looks at the case from a particular perspective – the lessons to be learned from the case and any particular issues with the current SA legislation or the proposed Bill in Tasmania. On a first reading of the case, there appear to be valuable statements made by the court which will assist me in my current quest to get the Sue Neill-Fraser murder conviction here in Tasmania back before the courts.
The facts in Drummond are as follows. In November 2010, the complainant, a 15 year old schoolgirl, was walking on the footpath in suburban Adelaide when she noticed a white station wagon drive slowly past her. She recorded its registration number because she considered that the driver was acting suspiciously. She saw a man alight from a white station wagon which she believed was the same vehicle. A stranger approached her from behind, grabbed the top of her arm and told her to get into the car. There was a tussle, in the course of which the stranger pulled the complainant backwards, the complainant pushed him backwards by the chest and arm and punched him two or three times. The man returned to his car.
The major issue at trial was the identity of the assailant but it was not conceded that the alleged events had occurred. The complainant was unable to identify the applicant Drummond as her assailant, choosing a different person in a photopak identification procedure. She described the clothes that her assailant was wearing, which did not match the clothes that the defendant was wearing. The defendant gave evidence at trial that he was driving along the relevant road at about the time of the incident but he did not stop, and he was not the assailant.
The police recovered the tops that the complainant and defendant were wearing at the relevant time and they were tested for DNA due to the alleged contact between them. The prosecution called a forensic scientist, Ms Mitchell, to give evidence re the DNA results. No DNA was found indicating any transfer. The scientist, a forensic biologist, gave evidence that DNA was not always found after contact had occurred. She said that studies at Forensic Science SA had shown that only 10 per cent of samples provided any useful information or usable DNA. This evidence was the subject of cross-examination.
The defendant was found guilty by a jury in March 2012 and his first appeal to the Full Court was dismissed in July 2012. An application for special leave to the High Court was dismissed.
At the hearing of the application for permission to appeal a second time, the forensic scientist produced to the court two studies by Forensic Science SA. The more recent study concerning samples using the extraction method used on the clothing of the complainant and applicant showed that in the case of clothing approximately 90 per cent of samples yielded a DNA profile. The applicant produced expert evidence that the statistic of 10 per cent referred to by the scientist in her evidence before the jury was wrong and misleading and that it was not unreasonable to use the 90 per cent figure from the second study as a general guide to the effectiveness of clothing yielding contact DNA.
The applicant submitted that the 10 per cent evidence was manifestly in error and was the cumulative result of a number of serious flaws in the scientist’s evidence.
It was common ground on the application for permission to appeal that the absence of evidence of incriminating DNA was a relevant consideration at trial.
Held by Blue J (Peek J agreeing in separate reasons) granting permission and allowing the appeal:
- The evidence of the Forensic Science SA studies and the defence expert concerning them constituted “fresh” evidence within the meaning of the relevant legislation because it could not with the exercise of reasonable diligence have been adduced at the trial (per Blue J at [309] – [319], per Peek J at [165]-[175]).
- The inaccurate evidence given by the forensic scientist resulted in a substantial miscarriage of justice.
- Observations were made on the duties of the prosecution and of expert witnesses (Blue J at [305]-[308], Peek J at [172]-[174]).
Held by Peek J (His Honour substantially agreed with Blue J but made three cautionary comments re the DNA issue):
- The effect of authorities such as Grey v The Queen, Mallard v The Queen and Wood v The Queen is that where the evidence sought to be adduced on a common form appeal is evidence that should have been disclosed by the prosecution at trial, miscarriage of justice may be demonstrated directly by reference to the failure to disclose rather than by the route of satisfaction of a “fresh evidence” test. These authorities are relevant to the question of whether the evidence is fresh under the “second appeal” legislation. When assessing whether defence counsel used reasonable diligence, one must take into account that counsel is entitled to assume that the prosecution will disclose to the defence relevant evidence and material and, a fortiori, that the prosecution will not lead false or misleading evidence as part of its case. The court will extend to an accused person great latitude when making that assessment.
Held by Gray J who refused permission to appeal:
- The new evidence was not fresh because defence counsel made a forensic decision at trial to challenge the cogency of the evidence on the ground that it was unknown whether human contact had occurred in the samples the subject of the study and the new evidence could with the exercise of reasonable diligence have been adduced at trial.
- The new evidence is not compelling. The evidence was not substantial or highly probative in the context of the issues in dispute at trial as it did not undermine the scientist’s ultimate opinion expressed at trial that, for a number of reasons, the absence of the DNA evidence does not preclude contact having taken place. The errors in the scientist’s evidence at trial concerning the 10 per cent figure were addressed at trial.
- It is not in the interests of justice to consider the evidence on an appeal. It was open to the jury to accept the complainant’s evidence and convict the applicant on that basis. The defendant raised his concerns with the DNA evidence on the hearing of his first appeal against conviction. He had multiple opportunities to adduce further evidence after trial but did not do so.
The court also considered/defined the words “compelling”, “in the interest of justice” and “substantial miscarriage of justice”.
Interesting extracts from the case are as follows:
Gray J (who refused permission to appeal) commented on the fresh evidence issue at [52]:
Ordinarily, an appellant will not have acted with reasonable diligence if they could reasonably be expected to have become aware of the evidence and adduced it at trial. However, at least insofar as the criminal law is concerned, there has always been scope for latitude when considering whether or not the evidence relied on could, with reasonable diligence, have been adduced at trial, given that the overriding consideration before a Court of Criminal Appeal is whether there has been a miscarriage of justice. (emphasis added)
Gray J went on to hold that in his view, reasonable diligence would have resulted in all or, at the very least, substantially all of the evidence then before the court being available to tender at trial [78]. He stated that the expert had agreed that the test was no more than an “indicator”.
His Honour considered that the substance of the scientist’s opinion had been correct but that there had been an “unhelpful reference” to studies undertaken by Forensic Science SA. Her evidence on the 10 per cent figure had been effectively qualified and addressed at trial, in particular during cross-examination [90].
Peek J commented that, like the other two Judges, he emphasised that he accepted that the forensic scientist did not deliberately mislead when giving evidence [104]. See also Blue J at [185].
Peek J made the following comments about the trust placed by jurors in prosecutors and forensic scientists [108] to [109]:
It must be remembered that jurors have great trust in prosecution counsel employed by the Office of the Director of Public Prosecutions and have great trust in the experts from the FSSA that are called to give evidence. I have no doubt that the jurors in the present case would have gained the firm impression that they were being told that they could confidently apply such evidence to the case before them, and that they could do so on the basis that the statistics referred to by Ms Mitchell were indeed logically applicable to the present case.
I also consider that the jurors would in no way have been disabused of that firm impression by anything that subsequently occurred in the case.
Peek J commented that the real flaws in Ms Mitchell’s evidence remained unexposed [117]. He also referred to the prosecutor’s “thrice repeated assertion” that there was nothing unusual about not getting DNA in the present circumstances [119].
Peek J also looked at defence counsel’s closing address where the lawyer said nothing about the scientist’s “one chance in ten” evidence. His Honour stated that such evidence would therefore have remained at the forefront of jurors’ minds. He found that Counsel’s omission to efficiently tackle the “one chance in ten” evidence only confirmed that he, like the jurors, understandably failed to discern any clues indicative of the highly nuanced situation revealed by the new evidence before the court [122] – see also [127].
Peek J commented on the very difficult position in which defence counsel was placed [129]. He stated at [128]:
It can be seen that I entirely disagree with any suggestion that: defence counsel recognised any more than a partial aspect of the flaws in the prosecution case; or that his cross-examination or address to the jury was telling; or that he substantially reduced the weight of the evidence-in-chief of Ms Mitchell.
Peek J found that the new evidence established that the cumulative effect of the substantial flaws in the scientist’s evidence was that her 10 per cent evidence was “very substantially in error” [150].
Peek J also commented that in the unusual circumstances in the case, the prosecution deliberately led the now discredited evidence of the scientist for the avowed purpose of persuading the jurors that detection of DNA after contact of the present nature was unusual and was found in only 10 per cent of occasions of DNA testing by FSSA [162]. His Honour commented [162]:
If, as occurred here, such evidence is given without sufficient care by the prosecution expert witness or the prosecutor to check its accuracy, it is difficult to see how evidence later proferred by the defence controverting the accuracy of the prosecution evidence can be denied to have a real or material bearing on the determination of a fact in issue which, in turn may rationally affect the ultimate result of the case.
Of particular interest is Peek J’s comment at [166] where he states that at common law, the “reasonable diligence” requirement may be entirely dispensed with on a common form criminal appeal where the evidence is sufficiently strong. He cited the High Court case of Gallagher v The Queen where Gibbs CJ stated:
… the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at trial … [but] this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.
However, he stated that the relatively rigid structure of the relevant section of the Act meant that this first common law principle could not be applied to “fresh evidence” proferred to engage a second appeal [167]. He then referred, however, to the further common law principle that great latitude is to be extended when considering the reasonable diligence requirement in the context of a criminal appeal as outlined in the High Court decision of Ratten v The Queen [168].
It was accepted by the court in Keogh (No.2) that this important principle of “great latitude being extended to an accused” does apply to a “second appeal” under s 353A(1) and (2) of the SA legislation [170].
Peek J pointed out that when one considered the application of the reasonable diligence requirement to the present case, it was important to remember that the present case was “highly unusual” in that it involved the giving of evidence by a prosecution expert witness that has subsequently been demonstrated to be incorrect [171].
Peek J commented at [172]:
In the context of a common form appeal, authorities such as Grey v The Queen, Mallard v The Queen, and Wood v The Queen stand for the proposition that, first, there is an obligation on the prosecution in a criminal trial to disclose all relevant evidence to the accused and second, there is no obligation on an accused person to seek out information which the prosecution is obliged to produce. The effect of such authorities is that where the evidence sought to be adduced on a common form appeal is evidence that should have been disclosed by the prosecution at trial, miscarriage of justice may be demonstrated directly by reference to the failure to disclose rather than by the route of satisfaction of a “fresh evidence” test.
Peek J further commented that when assessing whether defence counsel used reasonable diligence, one must take into account that counsel is entitled to assume that the prosecution will disclose to the defence relevant evidence and material, and, a fortiori, that the prosecution will not lead false or misleading evidence as part of its case. Further when making an assessment of whether there was reasonable diligence, the court will extend to an accused great latitude [174].
Peek J concluded that the new evidence in the case was “fresh” within the meaning of the Act. He noted that Blue J came to the same conclusion by reference to the authorities relating to the obligations of expert witnesses and he agrees with his colleague’s comments in that regard [175].
Blue J went into considerable depth on the forensic evidence. He also examined the duties of an expert witness. His Honour stated at [305]:
Before turning to these questions, it is important to understand the duties of an expert witness in proceedings, the duties of disclosure on the prosecution in criminal proceedings and the conditions of admissibility of expert opinion evidence. The duties of an expert witness include providing independent assistance to the court, stating the facts on which his or her opinion is based, stating if his or her opinion is not properly researched and making disclosure of all material matters that affect his or her opinion. The duties of the prosecution include timely disclosure of the evidence it proposes to lead, material that would assist the defence case and in the case of scientific evidence all material matters that affect positively or negatively the scientific case relied on by the prosecution.
Blue J referred to the case of James v Keogh where it was pointed out that an expert witness should not omit to consider material facts which could detract from his/her concluded opinion [306].
In determining whether the evidence of the FSSA studies could with reasonable diligence have been adduced at trial, Blue J also thought it was relevant that, to the knowledge of the defence, Ms Mitchell was an independent expert owing a duty to the Court to provide objective unbiased evidence uninfluenced by the fact that FSSA’s client in the matter was SA Police and she was called as a witness by the prosecution [314].
Further to this, the point of FSSA existing as an independent expert agency is to relieve the parties of having to undertake their own independent analyses. Parties are encouraged, his Honour stated, to not needlessly challenge uncontroversial independent expert evidence [316]. His Honour, for these, and other reasons, found that the evidence before the court satisfied the test for “fresh” evidence [319].
Blue J found that the DNA evidence was inadvertently misrepresented at trial and was relied upon by the prosecutor to bolster his case. The jury was misled [348].
Blue J found that the applicant’s trial was unfair in the sense that the jury was labouring under a misapprehension in the assessment of evidence that was important and was treated as important by the prosecution and defence. The new evidence was highly probative in the context of the issues in dispute at the trial [357]- [358].
Blue J went on to consider whether there had been a substantial miscarriage of justice. He stated that a substantial miscarriage of justice may be found where there has been an irregularity in or in connection with the trial. Irregularities included but were not limited to wrongful admission of evidence, wrongful rejection of evidence and misleading evidence [366].
Blue J found that the new evidence demonstrated by reason of Ms Mitchell’s study evidence having been false and misleading that there had been a substantial miscarriage of justice [374].
Given the orders for a retrial in the case, it is now up to the DPP to determine whether and how the matter should proceed.
The Drummond case shows that flawed, false or misleading forensic science evidence can indeed lead to a substantial miscarriage of justice. It also provides interesting insights into what constitutes “fresh evidence”, including the related concept of “reasonable diligence” on the part of defence counsel. There are also helpful comments on the impact of non-disclosure by the Crown and the obligations of expert witnesses.
This article appeared first on Barbara Etter’s blog: http://www.betterconsult.com.au