Six years ago, our client was charged with unlawful possession of several firearms and ammunition which were found during execution of a search warrant at a storage unit he was sharing with a mate, the latter who was initially a co-accused. Police were led to the storage unit after finding the lease paperwork while executing a search at the co-accused’s property, where they also found a treasure trove of trafficable quantities of drugs, stolen property and a firearm. In due course, the co-accused would be sentenced to serve a significant prison sentence. Our client was arrested a month after the search of the storage unit, telling police when interviewed that he was using the storage unit to store car parts and large items he could not fit into his small shed at his rental nearby. He was a mechanic by trade and was captured by CCTV coming and going to the storage facility several times over the course of a month. When the cops executed warrants at our clients home, new storage unit and reviewed the content of his phone, there was nothing connecting him to any criminal activity or association with drugs and firearms. Nevertheless, because our client was observed on CCTV to enter the storage facility and the co-accused was not on CCTV (despite the lease being in his name), our client faced a lone trial.
The only piece of circumstantial evidence that could establish our client knew and intended to exercise control over the firearms was a mixed DNA profile of 4 people, of which our client’s DNA contributed to, on one of the last firearms located during the two-hour search of the unit. The search was only recorded when a firearm was located, as each was very well concealed within tool boxes, bags within bags and so forth. Absent a thorough search, it would not be possible to know that firearms were concealed inside the unit. The general search and the removal of the contents of the storage unit by up to 10 police officers, some who were not wearing protective forensic equipment (e.g. gloves) was not recorded. Given the significance placed by the ODPP on the DNA evidence in its insistence on the prosecution of our client, we decided to test the admissibility of the DNA evidence and demonstrate an unfair trial would occasion if it were presented to a jury. Our position was that our client’s DNA was found on the firearm because of police officer assisted transfer, and not, as the prosecution suggested, by our client’s handling of it.
We engaged a forensic scientist to review the search warrant footage and provide an opinion as to the manner in which it was conducted and how exhibit handling procedures employed by police may have contributed to contamination of the scene, and critically, the result of the swab submitted for DNA analysis by PathWest. We also requested the PathWest expert review the footage and provide an opinion. Both experts agreed that contamination was likely to have occurred, albeit more strongly expressed by our expert. We prepared comprehensive written submissions ahead of the hearing to determine admissibility of the DNA evidence, which were subsequently presented orally. After two weeks of anxiously waiting for ruling, we were elated to receive the decision that the DNA evidence was ruled inadmissible and our expert’s robust opinion was given precedence.
In light of the exclusion of the DNA evidence, the ODPP finally acknowledged that there was no reasonable prospect of securing a conviction, mere days after the ruling, and four days before the intended trial date.