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District Court 20 April 2010

R v Lomas

[2010] NSWDC 112

Theft & property
CRIMINAL LAW EVIDENCE IDENTIFICATION EVIDENCE DNA

Citation: R v Lomas [2010] NSWDC 112
Court: District Court of New South Wales
Date: 20 April 2010
Judge(s): Finnane QC DCJ

Background

The accused faced a charge of robbery in company arising from an incident on 28 July 2007 at a Travelex store in the Burwood Westfield Shopping Centre. The Crown alleged he and an unknown accomplice robbed the store manager. During the pursuit that followed, a security guard observed one of the robbers drop a scarf and a screwdriver in a motor vehicle driveway of the shopping centre.

The scarf was submitted for DNA testing on two occasions. The testing revealed a match with the accused's DNA profile, found on both sides of the scarf in the area consistent with it having been worn over the lower face. No other person's DNA was found on the scarf. A forensic biologist gave evidence that the probable sources of the DNA included saliva, blood, semen, or mucus, and that statistically fewer than one in ten billion people would be expected to share the same DNA profile.

Beyond the DNA, the Crown also pointed to the accused's admitted presence at the Westfield centre shortly before the robbery and the recovery of dark cargo-style trousers from his premises. Defence counsel submitted at the close of the Crown case that the judge should direct the jury to acquit.

  • Whether, taking the Crown case at its highest, there was sufficient evidence on which a properly directed jury could convict the accused.
  • Whether a direction to acquit was warranted where DNA evidence was the primary connecting link between the accused and the alleged offence.
  • How the court should treat an anticipated High Court ruling (in Forbes v The Queen) on the sufficiency of DNA evidence alone to sustain a conviction.

Decision

Finnane QC DCJ refused the application for a directed acquittal. The standard for such a direction requires the judge to take the Crown case at its highest. The judge's own reservations about the evidence, or the weakness of the Crown case, are not sufficient reasons to withdraw the matter from the jury. On that test, the judge found there was evidence capable of supporting a conviction.

The DNA finding was the central plank of the Crown case. The judge observed that the accused's DNA, and only his, appeared on both sides of the scarf in a quantity consistent with direct use of the garment, rather than incidental transfer. The statistical rarity of the profile (fewer than one in ten billion) meant the evidence, taken at its highest, could rationally support an inference that the scarf belonged to or was worn by the accused.

The judge acknowledged that Forbes v The Queen, then pending before the High Court, raised the question of whether DNA evidence alone could ever sustain a conviction. However, the judge noted this case involved marginally more connecting evidence than Forbes, including the accused's admitted familiarity with the shopping centre and the recovery of similar clothing. The judge declined to wait for the High Court's ruling before resolving the application.

The judge was candid about the risk that a jury might place excessive weight on the DNA statistics. This concern informed the direction of appropriate jury directions, including instructions that the DNA evidence did not by itself necessarily establish guilt, that the accused could not be convicted on the other evidence alone, and that if the jury harboured doubts about whether the scarf was indeed the accused's, they should acquit.

Orders Made

No formal orders were made in this decision. The ruling was that the matter would proceed to the jury with appropriate directions, rather than resulting in a directed acquittal.

Key Takeaways

  • The District Court confirmed that a directed acquittal is only appropriate where, taking the Crown case at its highest, no reasonable jury could convict. Personal judicial doubt about the evidence's strength does not meet that threshold.
  • DNA evidence identifying an accused as the likely source of biological material on an item connected to a crime can, on its own or as the principal evidence, be sufficient to leave a charge to the jury.
  • Where only one person's DNA is found on a garment in a location and quantity consistent with direct use, the theoretical possibility of third-party transfer does not automatically remove the matter from jury consideration. That possibility is instead a matter for jury direction.
  • A significant DNA profile statistic (here, fewer than one in ten billion) does not transform DNA evidence into conclusive proof. The court emphasised that juries must be directed not to treat such statistics as eliminating all reasonable doubt without considering the surrounding circumstances.
  • The pending High Court decision in Forbes v The Queen on DNA-only convictions was noted but did not determine the outcome here, as the court found slightly additional circumstantial evidence beyond DNA existed.

Legislation and Cases Referenced

Cases:
- Forbes v The Queen [2010] HCATrans 45 (12 March 2010), cited for the proposition that DNA evidence alone may raise questions about the sufficiency of proof for conviction.

Legislation:
No specific legislation was cited in the judgment.