Date of Order: 19 June 2014 Date of Publication of Reasons: 13 August 2014
A9/2014
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of South Australia made on 16 August 2013 and in their place:
(a)order that the appeal to that Court against conviction is allowed and the appellant's conviction is quashed; and
(b)direct that a judgment and verdict of acquittal is entered.
On appeal from the Supreme Court of South Australia
Representation
D M J Bennett QC with A L Tokley SC and S A McDonald for the appellant (instructed by Iles Selley Lawyers)
J P Pearce QC with T J Ellison for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fitzgerald v The Queen
Criminal law − Evidence − DNA evidence − Where appellant's DNA obtained from object found at crime scene − Whether DNA evidence sufficient to establish beyond reasonable doubt appellant's presence at, and participation in, crime committed.
Words and phrases − "DNA evidence", "joint enterprise", "primary transfer", "secondary transfer".
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ. Shortly before 6:00am on 19 June 2011, a group of men forced their way into a house in Elizabeth South in South Australia and attacked two of the occupants with weapons including a gardening fork and a pole. One victim, Kym Bruce Drover, died four days after the attack and another, Leon Karpany, sustained serious brain injuries.
The appellant was charged on information with one count of murder and a second count of "aggravated causing serious harm with intent to cause serious harm" contrary to ss 11 and 23(1) respectively of the Criminal Law Consolidation Act1935 (SA) ("the CLCA") arising out of this incident. After a joint trial before a judge and jury in the Supreme Court of South Australia, the appellant and his co-accused, Grant Andrew Sumner, were convicted on both counts. Each is serving a term of life imprisonment subject to a non‑parole period of 20 years consequent upon the convictions. The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of South Australia.
The prosecution did not contend that either Sumner or the appellant inflicted the fatal blow on the deceased or the blows that occasioned serious injury to Leon Karpany. Shortly stated, it was the prosecution case that Sumner and the appellant were members of the group that forced entry into the house and that each member of the group was a party to a common plan to cause grievous bodily harm to persons inside the house. The real issue in the appellant's trial was the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Fitzgerald v The Queen [2014] HCA 28
Case
[2014] HCA 28
Decision Date
CaseChat Overview and Summary
In *Fitzgerald v The Queen*, the High Court of Australia considered an appeal against a conviction for offences arising from a violent home invasion. The appellant, Fitzgerald, and a co-accused, Sumner, were convicted on the basis that they were part of a group that attacked the occupants of a house. There was no direct evidence that either Fitzgerald or Sumner inflicted harm on the deceased or another victim. Crucially, six individuals present during the attack failed to identify Fitzgerald from photographs.
The central legal issue before the High Court was whether the DNA evidence found on a didgeridoo at the crime scene was sufficient to establish beyond reasonable doubt Fitzgerald's presence at, and participation in, the offences. The prosecution's case relied on a mixed DNA profile found on the didgeridoo, where Fitzgerald's DNA was the major contributor. This evidence was presented as proof of Fitzgerald's presence at the scene during the attack.
The High Court reasoned that the prosecution had failed to prove beyond reasonable doubt that Fitzgerald's DNA was transferred to the didgeridoo during the commission of the offences. The expert evidence indicated that DNA could be transferred through primary contact or secondary transfer, and that secondary transfer was possible even after a significant time lapse. The expert also conceded that the presence of "reddy-brown stains" on the didgeridoo, which contained the deceased's and another victim's DNA, did not necessarily mean that Fitzgerald's DNA was also transferred at that time. Given the lack of direct evidence of Fitzgerald's involvement, the possibility of secondary transfer, and the failure of eyewitnesses to identify him, the Court concluded that the DNA evidence alone was insufficient to support a conviction.
Consequently, the High Court allowed the appeal, quashed Fitzgerald's conviction, and entered a verdict of acquittal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of South Australia made on 16 August 2013 and in their place:
(a) order that the appeal to that Court against conviction is allowed and the appellant's conviction is quashed; and
(b) direct that a judgment and verdict of acquittal is entered.
Background
Background to the litigation
At the conclusion of the hearing of the appeal in this Court orders were made allowing the appeal and directing that a judgment and verdict of acquittal be entered. What follows are the reasons for making those orders.The facts The appellant's co-accused, Sumner, visited the house in Elizabeth South twice on 19 June 2011. Approximately two hours before the attack, Sumner had been involved in several physical altercations at the house. One such altercation, described as a "play fight", resulted in Sumner splitting the lip of the deceased. At one stage during those altercations, Sumner sat on a freezer in the kitchen near where the didgeridoo was located. Events culminated in a fight at the front of the house between Sumner and his father, as a result of which Sumner suffered a fracture to his jaw and was chased away from the house by the deceased. Eyewitnesses at the scene gave evidence at the trial that Sumner, together with his mother, shouted threats of retaliation as they drove away. Sumner gave unchallenged evidence that before this first visit to the house he had attended a boxing match at which he had occasion to shake hands twice with the appellant, including at about 10:30pm. The significance of this evidence will be explained later. Shortly before 6:00am, the intruders, including Sumner, arrived at the house in several motor vehicles. The men split into two groups and simultaneously attacked the property, forcing their way in through the front and rear doors. Some men were armed with axes and gardening forks, while others armed themselves opportunistically upon entering the house. The group attacked the occupants as described at the outset of these reasons. As mentioned above, at the trial of the appellant and Sumner the prosecution contended that both men were part of the group that had forced entry into the house armed with weapons for the purpose of inflicting grievous bodily harm on one or more of the occupants. There was no direct evidence that either man inflicted harm on the deceased or Leon Karpany. It was an agreed fact read to the jury that six persons who were present during the attack, and were shown photographs of the appellant, failed to identify him. The appellant was excluded from DNA results taken from a variety of objects found at the crime scene and from four out of five forensic samples taken from the didgeridoo. However, one forensic sample from the didgeridoo, Sample 3B, contained a mixed DNA profile of "major" and "minor" contributors. The appellant's DNA was the major contributor and an unknown source was the minor contributor. The prosecution case was that the presence of the appellant's DNA on the didgeridoo, together with apparent blood stains containing the DNA of the deceased and Leon Karpany, sufficed to prove the appellant's presence at the scene as one of the intruders. That case depended upon satisfaction beyond reasonable doubt that the appellant's DNA was transferred by him to the didgeridoo at the time of the attack.
Evidence
Evidence Before The Court
The didgeridoo was found in the lounge room in close proximity to where the deceased was left after the attack. There was no evidence of how it came to be in the lounge room and no direct evidence that it was used in the attack. The evidence concerning DNASample 3B That the appellant's DNA was contained in Sample 3B was not challenged by the appellant. A qualified forensic expert, Dr Julianne Henry, gave evidence at the trial for the prosecution. She explained that Sample 3B came from an area on the didgeridoo showing "reddy‑brown stains" which had been removed using a scalpel. The sample consisted of two separate "bloodlike stains", one having a diameter of 2 millimetres by 1 millimetre and the other a diameter of less than 1 millimetre. Dr Henry said that even if the abovementioned "reddy-brown stains" were in fact blood (as indicated by a presumptive test), that circumstance did not prove that the DNA in Sample 3B derived from blood because the DNA may have been "under the stain", ie placed on the didgeridoo at an earlier time. She agreed with counsel for the prosecution that the "reddy-brown stains" may have "contributed nothing" to Sample 3B. DNA and blood Dr Henry explained that DNA, a molecule in cells from the human body, can be transferred to an object in biological fluid such as blood (or saliva) or through contact with a person's skin. She said the amount of DNA transferred through contact with a person's skin, called "contact" or "trace" DNA, is low compared to the amount of DNA transferred in a biological fluid. Finally, Dr Henry gave evidence that some people "shed" contact or trace DNA more readily than others. Dr Henry stated that there were three possible ways in which blood may be transferred to an object: direct transfer (where contact occurs between a person and an object), airborne transfer (where blood travels through the air and then lands on an object) and passive transfer (where a person's blood drips onto an object). Dr Henry was unable to distinguish, from a photograph, whether the deceased's blood on the didgeridoo was transferred directly or by having been airborne. Primary and secondary DNA transfer Dr Henry explained the differences between "primary" and "secondary" DNA transfer. A primary transfer occurs as a result of direct contact between a particular person and an object. A secondary transfer occurs when contact or trace DNA is transferred onto an object by an intermediary as a result, for example, of a handshake. Dr Henry gave evidence that the most likely way to obtain contact or trace DNA on an object was through primary, rather than secondary, transfer. She also stated that a secondary transfer of DNA remains possible a few hours after contact between a person and an intermediary, and that an intermediary's DNA is not necessarily transferred at the same time, although she was only aware of one example of this in the relevant literature. She accepted as a possibility that the appellant's DNA in Sample 3B was the result of a secondary transfer. Mixed DNA profiles
Decision
Reasons for decision
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ