Citation: [2015] NSWDC 116
Court: District Court of New South Wales
Date: 22 June 2015
Judge(s): A Haesler SC DCJ
Background
Three accused were tried for their alleged roles in a deliberate fire at Classic Body Repairs, Asquith, on the night of 29 November 2012. The Crown alleged that one accused wanted his Mazda RX8 destroyed to claim insurance, and that two co-accused broke into the workshop at his instigation and lit fires that destroyed multiple vehicles and gutted the premises. The Crown case was entirely circumstantial, with no direct evidence against any of the accused.
At the close of the Crown case, counsel for one of the alleged principals applied for a directed verdict of not guilty. The submission was that the only evidence connecting this accused to the break-in and fires was a DNA profile match between his profile and DNA recovered from the handles of a red tool box stolen from the workshop that night.
The trial judge refused the application. These are the reasons for that refusal.
Legal Issues
- Whether a DNA profile match, standing as the primary evidence of identity, is legally sufficient to justify leaving the case against an accused to the jury.
- Whether there is a rule of law or principle requiring acquittal where a DNA profile match is the only incriminating evidence against an accused.
- Whether the trial judge has the power to direct a verdict of acquittal even where the evidence might be characterised as weak or potentially unsafe.
Decision
Issue 1: The power to direct a verdict of acquittal
The court confirmed that, under the principle established in R v R (1989) 44 A Crim R 404, a trial judge does not have the power to direct a verdict of acquittal even where the judge's own assessment is that a guilty verdict would be unsafe (at [19]). The decision on guilt is for the trier of fact, here the jury, and cannot be pre-empted by the trial judge (at [34]).
Issue 2: Whether DNA evidence alone can sustain a conviction
The court found there is no general rule that a DNA profile match supported by statistics showing the rarity of the match is alone sufficient to establish an offender's identity (at [24]). Equally, however, there is no rule or principle that where a DNA profile match is the only incriminating evidence, the accused must be acquitted (at [24]-[34]). A survey of Australian, Scottish, English and United States authorities confirmed that the weight and sufficiency of DNA evidence is always a matter of degree, depending on all circumstances of the individual case (at [20]-[31]).
Issue 3: Distinguishing Fitzgerald v The Queen
The court distinguished the High Court's decision in Fitzgerald v The Queen [2014] HC 14, where a DNA match alone was held insufficient. In Fitzgerald, there was evidence of at least two distinct opportunities for secondary transfer of the appellant's DNA to the relevant object, and nothing connecting the timing or circumstances of the deposit to the crime. Here, the facts were materially different (at [22]-[23]).
Issue 4: Sufficiency of evidence in this case
The court identified evidence beyond the DNA match that remained available to the jury: telephone records linking the accused to co-accused and to the alleged organiser; intercepted calls showing a chain of contact from police to the organiser, to a co-accused, and then to this accused shortly after police inquiries resumed; and an alleged false denial of knowing the organiser, capable of being treated as a lie told in consciousness of guilt (at [36]). The court also noted the complete absence of any evidence explaining how this accused's DNA might have reached the tool box handles by secondary transfer or contamination (at [37]). On that basis, it remained open to the jury to conclude beyond reasonable doubt that this accused was guilty (at [38]).
Orders Made
- The application for a directed verdict of acquittal was refused.
Key Takeaways
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No rule of law in New South Wales, or in any comparable jurisdiction surveyed, requires an acquittal where a DNA profile match is the only incriminating evidence against an accused. The question is always one of degree, assessed against all of the evidence in the particular case (at [24]-[34]).
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A trial judge in New South Wales lacks the power to direct a verdict of acquittal simply because the judge personally considers a guilty verdict would be unsafe or unsatisfactory. That assessment is reserved for the jury as the trier of fact (at [19], [34]).
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The District Court distinguished Fitzgerald v The Queen on the basis that this case involved additional circumstantial evidence, including telephone records, intercepted calls, and an alleged lie told in consciousness of guilt, and an absence of any identified mechanism for secondary transfer or contamination explaining the DNA deposit (at [22]-[23], [36]-[37]).
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Where DNA evidence forms a link in a circumstantial case, the match and the circumstances in which it arose must be evaluated alongside all other relevant evidence, not in isolation. R v Hillier [2007] HCA 13 confirmed that evidence supporting inferences compatible with innocence should not be considered separately from the whole of the evidence (at [23], [35]).
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The admissibility of DNA profile matching using the Profiler Plus system and the statistical evidence underpinning such matches is now well settled in Australian courts, and the caution with which courts once approached such evidence has been progressively receding as experience with it has grown (at [20], [25]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- R v Adams [1996] 2 Cr App R 467
- Aytugrul v The Queen (2012) 215 A Crim R 501; (2012) 247 CLR 170
- R v Doheny and Adams (1997) 1 Cr App R 369
- Fitzgerald v The Queen [2014] HC 14
- Forbes v R [2009] ACTCA 10
- Forbes v The Queen [2010] HCA Trans 120
- R v Green, unreported CCA NSW 26/3/1993
- R v Gumm [2007] SASC 311
- R v Hillier [2007] HCA 13; (2007) 228 CLR
- R v Hillier [2010] ACTSC 33
- R v JCG (2001) 127 A Crim R 493
- R v Karger (2001) 83 SASR 1
- R v Karger (2002) 83 SASR 135
- Maguire v HM Advocate [2003] SLT 1307.
- R v Milat (19960 87 A Crim R 446 at 447
- R v Noll [1999] 3 VR 704
- DA v Osbourne 556 US -2009
- R v Pantoja (1996) 88 A Crim R 554
- R v R (1989) 44 A Crim R 404
- R v Reed [2009] EWCA 2698
- R v Rowe [2004] SASC 427
- Rush 672 NYS 2d 362
- Talay v R [2010] NSWCCA
- Tuite v R [2015] VSCA 148
- R v Watters [2000] EWCA 81