R v Gordon (No 4) [2016] NSWSC 312

R v Gordon (No 4) [2016] NSWSC 312

The officer's usual practice was relevant because protocols for avoiding contamination could rationally affect the probability that Mr Gordon's DNA was deposited on the rock by police secondary transfer rather than by his use of the rock. Such practice evidence was admissible as circumstantial evidence supporting an inference that the practice was followed, but the witness could not state that because it was her usual practice she believed or must have complied with it on the day. The proposed short demonstration of donning and discarding protective clothing was also relevant to whether that process was likely done and was not unfairly prejudicial, particularly because it would be...

Jurisdiction
Australia
Judgment Date
03 March 2016
Procedural Posture
Criminal Proceeding; Evidentiary Ruling / During Trial, on Objection to Proposed Evidence in Chief of Senior Constable Vercoe
Outcome
Evidence of usual practice and a demonstration by Senior Constable Vercoe are admissible.
Legal Topics
['relevance' 'evidence of Usual Practice' 'demonstrations in Evidence' 'unfair Prejudice' 'secondary Transfer of Dna']
['criminal Law' 'evidence'] ['relevance' 'evidence of Usual Practice' 'demonstrations in Evidence' 'unfair Prejudice' 'secondary Transfer of Dna']

Case Brief

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Procedural Posture

Criminal Proceeding; Evidentiary Ruling / During Trial, on Objection to Proposed Evidence in Chief of Senior Constable Vercoe

Legal Issues

  1. 1 ['Whether Senior Constable Vercoe could give evidence of her usual practice in examining, recording, collecting and preserving items at a crime scene despite limited actual recollection of the particular day.' 'Whether Senior Constable Vercoe could demonstrate the ease with which personal protective equipment can be donned and discarded.' 'Whether the proposed demonstration should be excluded as unfairly prejudicial because of the asserted "white-coat effect".']

Ratio Decidendi

The officer's usual practice was relevant because protocols for avoiding contamination could rationally affect the probability that Mr Gordon's DNA was deposited on the rock by police secondary transfer rather than by his use of the rock. Such practice evidence was admissible as circumstantial evidence supporting an inference that the practice was followed, but the witness could not state that because it was her usual practice she believed or must have complied with it on the day. The proposed short demonstration of donning and discarding protective clothing was also relevant to whether that process was likely done and was not unfairly prejudicial, particularly because it would be...

Court Disposition

Evidence of usual practice and a demonstration by Senior Constable Vercoe are admissible.

Orders

  • ["Under s 192A Evidence Act 1995 and subject to the conditions expressed, the evidence of Senior Constable Vercoe's usual practice is admissible." 'Under s 192A Evidence Act 1995 and subject to the conditions expressed, the demonstration by Senior Constable Vercoe is admissible.']