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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-090-004721 [2013] NZHC 1773

THE QUEEN

v

DAVID JAMES DUNN

Hearing:	12 July 2013	

Appearances:	
S McColgan and R See for Crown
J Krebs for Accused	

Judgment:	
15 July 2013	

(RESERVED) JUDGMENT (NO. 1) OF JUSTICE ANDREWS [Application for discharge under s 347 Crimes Act 1961 : Application to re-open Crown case to adduce further evidence]

This judgment is delivered by me on 15 July 2013 at 10am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Meredith Connell, Auckland
J B Krebs, Barrister, Napier

R v DAVID JAMES DUNN [2013] NZHC 1773 [15 July 2013]

Introduction

[1]       Mr McColgan closed the Crown case at 3pm on Friday 12 July 2013.   Mr Krebs, after taking instructions, applied for an order that Mr Dunn be discharged on count 1 in the indictment, under s 347 of the Crimes Act 1961.  The grounds of the application are that there is a gap in the Crown’s evidence, and that that gap is fatal to the Crown case on count 1.  In response to the application, Mr McColgan submits that a discharge should not be granted, and seeks leave to re-open the Crown case to adduce further evidence.

Background

[2]       In count 1, Mr Dunn is charged with possession of the class A controlled drug methamphetamine for supply.   It is alleged that he was in possession of methamphetamine found in two plastic containers located in a black “tank bag”, located in the bar area of the Head Hunter’s property at 12A View Road, Henderson, on 11 March 2001.1  The Crown links Mr Dunn to the methamphetamine by virtue of the DNA analysis of the “sipper top” of a “Signature range” plastic water bottle
found in the immediate vicinity of the larger container, in the main compartment of the tank bag.

[3]       The Crown has adduced evidence as to the location of the water bottle, and its  movement  thereafter  to  an  exhibits  handling  area  at  the  scene,  then  to  the Auckland Harbour Bridge police station (where the officer in charge in charge of exhibits is stationed), and then to the ESR laboratory in Auckland, where DNA swabs  were  taken  and  analysed.    Mr  Krebs’ concern  (for  the  purposes  of  this application) is focused on the reference sample for Mr Dunn. This sample was taken from Mr Dunn on 2 November 2012, pursuant to a Suspect Compulsion Order made in the District Court at Auckland on 29 October 2012.

[4]       Janine Anne Wilson, a forensic administrator at ESR, has given evidence that:

1	One container is alleged to have contained 972.9 grams of methamphetamine, the other is alleged to have contained 9.6 grams of methamphetamine.

On 6 November 2012 I received a reference DNA sample labelled as for Mr David James  Dunn.   This item was  labelled  with the  unique laboratory number BIO11722, and placed in secure storage at our laboratory.

Ms Grace Kegan, another forensic administrator, gave evidence that she removed the reference sample from the ESR storage, in order for it to be analysed.

[5]       Evidence as to the analysis of the sample taken from the water bottle, and its comparison with the reference sample, was given by Kitty Lai, a forensic scientist at ESR.  Ms Lai referred to laboratory records as to the receipt of the reference sample from Mr Dunn.

[6]       Neither Ms Wilson, Ms Kegan, nor Ms  Lai were cross-examined on the evidence as to the receipt or labelling of the reference sample.

[7]       Ms Lai’s evidence as to the analysis and comparison of the sample was that:

Partial DNA results were obtained from the combined swabs from a “Signature Range” water bottle.   By partial I mean that DNA results were obtained at some but not all of the fifteen DNA sites tested.   Assuming that these DNA results have originated from just one person, these results indicated that this DNA could have originated from Mr Dunn or another male with the same DNA profile as him at the DNA sites were results were obtained.

In evaluating these results I have considered the following two propositions:

Either:  The DNA recovered from the combined swabs originated from Mr
Dunn

Or:    This  DNA originated  from  someone  else,  unrelated  to  Mr  Dunn, selected at random from the general New Zealand population.

Following statistical analysis, it has been determined that the likelihood of obtaining  these  DNA results  is  at  least  eighty  thousand  million  million (8x1016) times more likely if this DNA has originated from Mr Dunn rather than someone else unrelated to Mr Dunn and selected at random from the general New Zealand population.

This statistic can be expressed in words to mean that the DNA evidence provides extremely strong scientific support for the proposition that DNA recovered from the combined swabs from a “Signature Range” water bottle originated from Mr Dunn.

Submissions

[8]       Counsel made oral submissions at the time the s 347 application was made. Further written submissions were provided during the weekend.

[9]       Mr  Krebs  submitted  that  the  Crown,  having  been  put  on  notice  that “everything was in issue”, had failed to prove that the reference sample had been taken from Mr Dunn.  He submitted that it was not sufficient for the Crown to say that ESR had received a reference sample labelled as having been taken from Mr Dunn; evidence should have been given as to taking the sample from Mr Dunn, labelling and storing it appropriately, then delivering it to ESR.  He further submitted that evidence of receipt of the sample was hearsay as to it being taken from Mr Dunn, and could not be admitted in the absence of a hearsay notice.

[10]     Mr Krebs also submitted that he had made no concession that the reference sample had come from the accused (as opposed to any other person named David James Dunn), and that Mr Dunn’s case had not been conducted on the basis that it was accepted that the reference sample had come from Mr Dunn.   He further submitted that there was, in any event, no requirement for him to advise the prosecution as to what matters were in issue, or to highlight any gaps in the Crown case; it was for the Crown to prove all the elements of each charge.

[11]     The consequence  of the  Crown’s  failure to  call  evidence concerning  the reference sample was, Mr Krebs submitted, that there is no proper evidence before the  Court  that  the  reference  sample  was  from  the  accused  Mr  Dunn  and  that, therefore, Ms Lai’s evidence as to the comparison of the water bottle sample with the reference sample cannot be used to establish that there is “extremely strong scientific support” for the proposition that the DNA in the water bottle samples came from Mr Dunn.  He submitted that there was insufficient other evidence linking Mr Dunn to the tank bag, and methamphetamine in it, so he should be discharged on count 1.

[12]     In his reply submissions, Mr Krebs referred to Mr Dunn’s right to a fair trial under the New Zealand Bill of Rights Act 1990, and submitted that that right would be infringed if the Crown were given leave to call further evidence, to fill the gap.

[13]     Mr McColgan opposed the application for discharge, and applied for leave to re-open the Crown case and call further evidence, under s 98 of the Evidence Act
2006.  He submitted that, in the absence of any cross-examination on the evidence as to receipt of the reference sample, or any objection to evidence of the labelling of the reference sample (as being from Mr Dunn) as inadmissible hearsay, Mr Krebs could not rely on “everything being in issue”.

[14]     Mr  McColgan  submitted  that  the  general  tenor  of  Mr  Krebs’  cross- examination of Crown witnesses had been to the effect that the sipper cap of the waterbottle from which DNA samples were taken had been fitted onto a bottle that did not belong to Mr Dunn (and was of a different colour to the seal of the bottle) and  that  the  DNA on  the  sipper  cap  had  been  deposited  on  the  sipper  cap  by secondary transfer, through the air, or by contact with other property belonging to Mr Dunn.   Mr McColgan submitted that the conduct of the defence amounted to an implicit acknowledgement that the DNA on the sipper cap was that of Mr Dunn.

[15]     He further submitted that evidence of the sample being taken from Mr Dunn, stored, and delivered to ESR was readily available, as the relevant police officers had been in Court at the time the ESR witnesses gave evidence.

[16]     In all the circumstances, Mr McColgan submitted, evidence as to taking the reference sample and delivering it to ESR related to a purely formal matter, and (in the light of the application for discharge) the interests of justice required it to be admitted.  He submitted that Mr Krebs’ submissions were a “form over substance” argument, which should not be permitted to outweigh the interests of justice.

[17]     Mr McColgan submitted, further, that even without the DNA evidence, there is sufficient evidence to go to the jury in respect of count 1.  He referred to evidence of Mr Dunn having been seen close to the area where the tank bag was located, and evidence that the small container found in the tank bag appears to be identical to the container (with methamphetamine in it) found in another bag at the scene, in respect
of which there is strong evidence that it belongs to Mr Dunn.2

2	Mr  Dunn  is  charged  with  possession  of  methamphetamine  for  supply,  in  respect  of  the methamphetamine found in this container, in count 2 in the indictment.

Discussion

[18]     Section 98 of the Evidence Act provides, as relevant:

98        Further evidence after closure of case

(1)        In  any  proceeding,  a  party  may  not  offer  further  evidence  after
closing that party’s case, except with the permission of the judge.

...

(3)        In a criminal proceeding, the judge may grant permission to the prosecution under subsection (1) if—
(a)	the further evidence relates to a purely formal matter; or
(b)	the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not
reasonably have been foreseen; or
(c)	the further evidence was not available or admissible before
the prosecution’s case was closed; or
(d)	for  any  other  reason  the  interests  of  justice  require  the further evidence to be admitted.

(4)        In  a  criminal  proceeding,  the  judge  may  grant  permission  to  a defendant under subsection (1) if the interests of justice require the further evidence to be admitted.

(5)        The judge may grant permission under subsection (1),—
(a)	if there is a jury, at any time until the jury retires to consider its verdict;

...

[19]     Clearly,  there  is  jurisdiction  to  grant  leave  to  the  Crown  to  call  further evidence; the jury has not retired to consider its verdict.  The issue is whether the jurisdiction should be exercised in favour of granting leave.

[20]     In R v Timutimu, the Court of Appeal said:3

... the Court has an inherent jurisdiction to allow the Court to call further evidence [after it has closed its case].  The discretion is to be used sparingly and in such a way as to strike the appropriate balance of justice between the Crown and defence.  The two recognised categories of exception are, first, situations involving purely formal issues and, second, where issues have arisen unforeseeably or ex improviso. The discretion will be exercised rarely outside these two exceptions...

3	R v Timutimu CA236/06, 30 November 2006

[21]     Mr McColgan referred me to an oral ruling of Simon France J in R v Chong, in which a s 347 discharge was sought on the basis that the Crown had failed to prove that a substance imported into New Zealand was methamphetamine and was, therefore, a class A controlled drug.4   The Crown had not led evidence on the point, believing that there was an agreement with the defence that it did not need to be proved.  In that case, the application for discharge was made after the jury had been
deliberating for 11 hours, and his Honour found that he did not have jurisdiction to allow the Crown to call further evidence.  However, his Honour said:5

I note for the record that had such a power been available to me I would have exercised it.

[22]     Mr Krebs submitted that Chong is distinguishable in that it was decided before the Evidence Act came into force, that it concerned a matter which (in the circumstances of the case) in fact did not require proof, there had been no advice that the particular issue was in dispute, and that the defence case in Chong had been run on the basis that the methamphetamine was a class A controlled drug.

[23]     The present case does have some similarity to Chong in that in this case, unchallenged evidence has been given that ESR received a reference DNA sample labelled as being from Mr Dunn, and that that sample was used for the purpose of comparison with the sample taken from the water bottle, in order to determine the statistical likelihood of the water bottle sample having originated from Mr Dunn. To  adapt  the  language  used  by Simon  France J  in  Chong,  on  the  unchallenged evidence, it is reasonable to conclude that the defence in this case case has been conducted on the basis that it was accepted that the reference sample received by ESR had been taken from Mr Dunn.   No uncertainty had been raised as to the reference sample not being from Mr Dunn.

[24]     Now that there has been a challenge to the reference sample, I am satisfied that an order should be made, under either s 98(3)(a) (it being related to “a purely formal matter”), or (d) (the interests of justice require an order to be made), allowing
the Crown to re-open the case and call further evidence.

4	R v Chong HC Auckland CRI-2004-004-14044, 9 March 2006.
5	At [7].

[25]     There is no question that evidence as to taking the reference sample and delivering it to ESR is readily available.  In my view, it is clearly in the interests of justice that the Crown be given leave to call the evidence.   I do not accept the submission from Mr Dunn that his right to a fair trial will be infringed if leave is given; his counsel will have the opportunity to cross-examination the witness or witnesses called.  I am satisfied that no injustice would result from giving leave.

Result

[26]     Mr Dunn’s application for discharge is declined and the Crown’s application for leave to call further evidence is granted.  Leave is also granted for the Crown to have a signed s 9 admission of facts read to the jury.  That aspect of the application
to adduce further evidence was not opposed.

Andrews  J