McDonald v R [2015] NSWCCA 280

McDonald v R [2015] NSWCCA 280

Leave was refused because none of the proposed grounds had merit. The failure to attend for the forensic procedure was probative post-offence conduct, its probative value was high, and any unfair prejudice did not outweigh that value; the jury was properly directed. The DNA evidence was admissible because the attack on contamination or deliberate tampering was speculative, the officer's absence was justified and not successfully challenged at trial, and the chain of custody and laboratory evidence gave no realistic basis for exclusion. On sentence, the judge used Henry only as a guide, did not double count the circumstances of aggravation, permissibly treated actual violence and use of a...

Jurisdiction
Australia
Judgment Date
02 November 2015
Procedural Posture
Criminal Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal Application for Leave From District Court Convictions and Sentences
Outcome
Leave to appeal against conviction and leave to appeal against sentence refused.
Legal Topics
['aggravated Robbery' 'take and Detain With Intent to Obtain an Advantage' 'indecent Assault' 'post Offence Conduct' 'consciousness of Guilt' 'dna Evidence' 'unfair Prejudice' 'permanent Stay' 'r V Henry Guideline' 'double Counting' 'manifest Excess' 'subjective Circumstances']
['criminal Law' 'evidence' 'sentencing' 'criminal Appeals'] ['aggravated Robbery' 'take and Detain With Intent to Obtain an Advantage' 'indecent Assault' 'post Offence Conduct' 'consciousness of Guilt' 'dna Evidence' 'unfair Prejudice' 'permanent Stay' 'r V Henry Guideline' 'double Counting' 'manifest Excess' 'subjective Circumstances']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal Application for Leave From District Court Convictions and Sentences

Legal Issues

  1. 1 ['Whether the trial judge erred by allowing the prosecution to adduce evidence that the applicant failed to attend for a forensic procedure order as post-offence conduct relevant to consciousness of guilt.' 'Whether the trial judge erred by admitting DNA evidence when a police officer involved in collecting exhibits was unavailable for cross-examination.' 'Whether the sentencing judge incorrectly applied R v Henry [1999] NSWCCA 111; 46 NSWLR 346 when assessing the aggravated robbery sentence.' 'Whether the sentencing judge erred by taking into account actual violence and use of a weapon as aggravating features.' 'Whether the sentence for taking and detaining the victim with intent to obtain an advantage was manifestly excessive.' "Whether the sentencing judge failed to have proper regard to the applicant's subjective circumstances, including age, delay, rehabilitation, substance abuse and mental health matters."]

Ratio Decidendi

Leave was refused because none of the proposed grounds had merit. The failure to attend for the forensic procedure was probative post-offence conduct, its probative value was high, and any unfair prejudice did not outweigh that value; the jury was properly directed. The DNA evidence was admissible because the attack on contamination or deliberate tampering was speculative, the officer's absence was justified and not successfully challenged at trial, and the chain of custody and laboratory evidence gave no realistic basis for exclusion. On sentence, the judge used Henry only as a guide, did not double count the circumstances of aggravation, permissibly treated actual violence and use of a...

Court Disposition

Leave to appeal against conviction and leave to appeal against sentence refused.

Orders

  • ['Leave to appeal against conviction refused.' 'Leave to appeal against sentence refused.']