R v Fleming [2007] NSWSC 328

R v Fleming [2007] NSWSC 328

The covert sample was not obtained in contravention of an Australian law, and the Crimes (Forensic Procedure) Act 2000 did not apply to the taking of the sample outside New South Wales or to what occurred. Although the accused was tricked into cooperating, the conduct did not cross the borderline into impropriety. In any event, assuming impropriety, the high probative value and vital importance of the DNA evidence, the gravity of the murder charge, the absence of compulsion, threats or promises, and the lack of any deliberate attempt to avoid statutory provisions meant that the desirability of admitting the evidence outweighed the undesirability of admitting it. The probative value was...

Jurisdiction
Australia
Judgment Date
11 April 2007
Procedural Posture
Criminal Prosecution for Murder / Application by the Accused to Exclude DNA Evidence; Judgment on Admissibility
Outcome
DNA evidence admitted; application to exclude refused.
Legal Topics
['admissibility of DNA Evidence' 'improperly or Illegally Obtained Evidence' 'covert DNA Sample' 'forensic Procedures' 'unfair Prejudice']
['criminal Law' 'evidence'] ['admissibility of DNA Evidence' 'improperly or Illegally Obtained Evidence' 'covert DNA Sample' 'forensic Procedures' 'unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Prosecution for Murder / Application by the Accused to Exclude DNA Evidence; Judgment on Admissibility

Legal Issues

  1. 1 ['Whether DNA evidence obtained from spittle on a sheet of paper should be excluded under s 138 of the Evidence Act as improperly or illegally obtained.' 'Whether the taking of the covert DNA sample contravened the Crimes (Forensic Procedure) Act 2000.' 'Whether the DNA evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice.']

Ratio Decidendi

The covert sample was not obtained in contravention of an Australian law, and the Crimes (Forensic Procedure) Act 2000 did not apply to the taking of the sample outside New South Wales or to what occurred. Although the accused was tricked into cooperating, the conduct did not cross the borderline into impropriety. In any event, assuming impropriety, the high probative value and vital importance of the DNA evidence, the gravity of the murder charge, the absence of compulsion, threats or promises, and the lack of any deliberate attempt to avoid statutory provisions meant that the desirability of admitting the evidence outweighed the undesirability of admitting it. The probative value was...

Court Disposition

DNA evidence admitted; application to exclude refused.

Orders

  • ['The DNA evidence should be admitted.']