Abisaab v The Queen [2008] HCATrans 198 (23 May 2008)

Last Updated: 29 May 2008

[2008] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A38 of 2007

B e t w e e n -

AYMAN ABISAAB

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 23 MAY 2008, AT 10.38 AM

Copyright in the High Court of Australia

MR K.V. BORICK, QC: If the Court pleases, I appear with MR M.S. HEGARTY for the applicant. (instructed by Michael Hegarty & Associates)

MR P.R. BREBNER, QC: If the Court pleases, I appear with MS C.M. PURCELL for the respondent. (instructed by Director of Public Prosecutions (SA))

KIRBY J: Yes, Mr Borick.

MR BORICK: Your Honours, I can be very brief in my oral submission. There is no doubt that the syringe cap was thrown away and that the applicant was denied the opportunity to have it independently retested. Against that background if leave was given we would be bringing to the attention of the Court the statement of the Chief Justice of South Australia in the case of Hall which was referred to at paragraph 18 of the judgment of the court below. If I could just read it to your Honours, his Honour said:

It would have far-reaching consequences if the inability of the defence to pursue a line of inquiry that might assist the defence, through no fault of the defendant, was said to make a trial unfair. Perhaps that is expressing it too broadly –

and it went on from there. We would be arguing that it is very uncertain of what his Honour meant by “far-reaching consequences” and it is equally uncertain what he meant when he said he expressed that “too broadly”. The argument to be presented to the Court is that that is a – I am not sure whether it is called a comment or an observation – but it is not a correct statement of the law and in any event - - -

KIRBY J: I think, as I understood his Honour, he is saying there is no absolute rule in this case. Obviously – and you can assume that certainly on my own part - the issue of ensuring the integrity of DNA evidence is absolutely critical because of the great importance that one infers juries attach to it and the chances of mistakes that can occur based on irrelevant DNA evidence that is not established as having been at the crime scene. But my understanding in your client’s case is that you do not allege any misconduct on the part of the police and - - -

MR BORICK: No, your Honour.

KIRBY J: - - - the suggestion in Mr Brebner’s submission is that the evidence of DNA was procured at a time before your client was a suspect in the case.

MR BORICK: That is so.

KIRBY J: And that the DNA, such as was on the cap of the syringe, was transferred to cotton buds which were made available to you for testing if you so wished, and you did not take advantage of that opportunity. So that if we look at the facts of this case, it does not seem to be a case which on its own facts calls for intervention by this Court to establish any general principle.

MR BORICK: With respect, your Honour, the only way in which you can safeguard yourself against error or incorrect result in the DNA testing is by an independent retest which starts at the very beginning. So the beginning of the process is the handling of the syringe cap and the collection of the material from it, which contains DNA and the process of examining that DNA sample and then producing a statistical result goes on from there. But we were denied the opportunity to independently retest and that meant starting from the beginning and that could not happen because the syringe cap was thrown away. It was of no benefit to the Tasmanian laboratory which had been advising me to just have the cotton buds because that was not the beginning of the process.

So, in my submission, this is an appropriate vehicle for the Court to examine what the Chief Justice - the comment that I have just referred to of the Chief Justice and, in addition, to look at the apparent distinction that has been drawn between general unfairness and the relevant unfairness. In my respectful submission, if leave were given, the argument would be put that there is no such distinction, that the question is whether there was unfairness. Why we say it is a suitable vehicle to look at that issue – that broad issue – is because the submission by Mr Brebner was not correct as regard to the facts. The witness, Dr Henry, admitted as much when she said, “Yes, you have lost the opportunity for the independent retest - if your laboratory can find some way to do it a bit better than ours”.

KIRBY J: We realise that and we understand your argument and we see the point that you are submitting, but what we have to keep our eye on is whether this is a case to examine the issues of integrity of DNA evidence. Once you accept that there was no police misconduct in the removal of the actual item, and once you accept that the police were not, as it were, suspecting your client and removed the item that could be checked, then it really is not a case where a chance of miscarriage of justice invites the intervention of the High Court.

MR BORICK: Your Honour, in fact the case is not concerned with the integrity of the DNA process. We accept for the purposes of the argument that it was carried out properly in the laboratory. But, what we were denied was the opportunity to retest it for ourselves because things go wrong in laboratories, your Honour, and that is the only safeguard that you have and
that is the independent retest, starting from the beginning. That has nothing to do with the actual process itself or the integrity of the process. It is to do with the removal of the safeguard.

It is similar to what happened in Hall where the individual could not have his blood test reanalysed because the hospital was too busy. There our court on that issue as an issue of unfairness divided three/two and almost precisely the same issue arises here, except in this case there was no statutory background that his Honour the Chief Justice referred to in Hall. I cannot express it in any other way. That is the reason why we are seeking special leave to appeal.

KIRBY J: Yes, thank you. Now, you need an extension of time, do you not, for the bringing of the application?

MR BORICK: Yes, your Honour.

KIRBY J: Yes, very well. We will ask Mr Brebner about that. Have you concluded your submissions, Mr Borick?

MR BORICK: Yes, your Honour.

KIRBY J: Yes, thank you. Yes, Mr Brebner, is there any problem with the extension of time?

MR BREBNER: No, your Honour.

KIRBY J: No, very well. We do not need your further assistance, Mr Brebner.

Evidence was led at the applicant’s trial about the analysis of DNA recovered from the cap of a syringe found at the site of an armed robbery. The syringe cap that had been tested was later thrown away. The applicant alleges that evidence of the DNA test analysis should not have been admitted at his trial because he could not have had an independent test conducted on the syringe.

The applicant does not allege misconduct on the part of the police officer in discarding the cap, which conduct occurred before the applicant was a suspect of the armed robberies. Cotton buds that were used to extract the DNA from the syringe cap were offered to the defence for testing but that offer was not availed of.

We see no reason to doubt the correctness of the conclusion of the Full Court of the Supreme Court of South Australia, that it was open to the trial judge to conclude that reception of the evidence of the DNA test analysis was not unfair in the circumstances of this case. Whilst the Court would extend time for the bringing of the application, it refuses special leave to appeal.

AT 10.48 AM THE MATTER WAS CONCLUDED