Macartney v The Queen

Case [2006] WASCA 29


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MACARTNEY -v- THE QUEEN [2006] WASCA 29

CORAM:   STEYTLER P

WHEELER JA
ROBERTS-SMITH JA

HEARD:   3 MAY, 13 SEPTEMBER 2005 & 3 FEBRUARY 2006

DELIVERED          :   2 MARCH 2006

FILE NO/S:   CCA 121 of 2001

BETWEEN:   ROBIN DAVID MACARTNEY

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :WALLWORK J

File No  :INS 16 of 2001

Catchwords:

Criminal law and procedure - Appeal - Trial by Judge alone - Application for leave to appeal against conviction - Murder - Self­represented appellant - New or fresh evidence on appeal - Whether DNA evidence at crime scene sufficient to identify appellant - Whether errors of fact made by Judge - Whether items placed at crime scene by police to incriminate appellant - Whether evidence insufficient to support conviction - Section 279(2) of the Criminal Code (WA) - Whether applicable when act causing death not able to be identified - Meaning of phrase "likely to endanger human life" - Whether defence of mistake under s 23 of the Code available in the case of an offence charged under s 279(2)

Words and phrases - Meaning of the word "likely" in s 279(2) of the Criminal Code (WA)

Legislation:

Criminal Code (WA),  s 23, s 236, s 279(2)

Result:

Application for leave to appeal granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     In person & Mr P Urquhart

Respondent:     Mr D Dempster & Ms E Abou-Merhi

Solicitors:

Appellant:     In person

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ali v The Queen (2005) 79 ALJR 662

Beamish v The Queen [2005] WASCA 62

Boughey v The Queen (1986) 161 CLR 10

Buckland v The Queen, unreported; CCA SCt of WA; Library No 970112; 21 March 1997

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

D v S (Rights of Audience) [1997] 1 Fam Law R 724

Damjanovic v Maley (2002) 55 NSWLR 149

Director of Public Prosecutions v Beard [1920] AC 479

D'Orta‑Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755

Ex parte Browne (1913) 13 SR (NSW) 593

R v Bow County Court

Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145

Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996

Jarmain [1946] 1 KB 74

La Fontaine v The Queen (1976) 136 CLR 62

Lumley (1911) 22 Cox CC 635

M v The Queen (1994) 181 CLR 487

McKenzie v McKenzie [1971] P 33

McSwan v The State of Western Australia [2005] WASCA 128

Mickelberg v The Queen (2004) 29 WAR 13

Murray v The Queen (2002) 211 CLR 193

R v Birks (1990) 19 NSWLR 677

R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807

R v Crabbe (1985) 156 CLR 464

R v Fitzgerald (1999) 106 A Crim R 215

R v Georgiou (2002) 131 A…

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AGLC
Macartney v The Queen [2006] WASCA 29
Case
[2006] WASCA 29
Decision Date

CaseChat Overview and Summary

In the matter of Macartney v The Queen, the appellant, R.J. Macartney, appealed against his conviction for the murder of Ms. L. Horsman. The case was heard in the Court of Criminal Appeal in Western Australia. The appellant contended that the trial judge had erred in several respects, including the admission of DNA evidence, the presence of items placed at the crime scene by the police, and the sufficiency of the evidence to support the conviction. The court was required to decide whether the DNA evidence at the crime scene was sufficient to identify the appellant, whether any errors of fact were made by the judge, and whether the evidence was insufficient to support the conviction. Additionally, the court needed to determine the meaning of the phrase "likely to endanger human life" in the context of s 279(2) of the Criminal Code (WA) and whether the defence of mistake under s 23 of the Code was available in the case of an offence charged under s 279(2).

The court held that the DNA evidence was sufficient to identify the appellant as one of the contributors to the DNA mixture found on the victim's left breast. The court also found that the appellant's contention that the singlet was not the one worn by the victim at the time of her death was without merit. Furthermore, the court held that the evidence was sufficient to support the conviction and that the appellant's guilt had been established beyond reasonable doubt. The court also found that the phrase "likely to endanger human life" in s 279(2) of the Criminal Code (WA) was not ambiguous and that the defence of mistake under s 23 of the Code was not available in the case of an offence charged under s 279(2).

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Professor Boettcher, in his letter, records that he has no clear idea of the facts of the case but that he is able to make "some comments about the data recorded in a table of DNA groupings" which, it seems, he had obtained from Mr Webb's report. Professor Boettcher then goes on to deal only with the DNA results which had been obtained by Mr Webb from the sample obtained from Ms Horsman's left breast. His letter reads as follows, in that respect:"My understanding is that the DNA results of a sample taken from the left breast is considered important in this case. In this letter I will comment only on the data recorded for this sample, plus the groupings for L. Horsman and R.J. Macartney.In the transcript that you have sent me of proceedings on 26/7/01, pages 363 to 369 (and others) refer to the DNA results of the sample obtained from the left breast. The thrust of the evidence is:•The DNA from the sample obtained from the left breast is a mixture of DNA from at least two people. In fact, the most appropriate scientific interpretation of the data in the table is that the DNA came from two, and only two, people. I will assume at this stage that the DNA came from two people.•Macartney cannot be excluded from contributing to the DNA mixture obtained from the left breast.The last point is a conclusion derived from the data recorded in the table.Underlying the conclusion is the assumption that, in order to exclude Macartney's DNA from the mixture, there needs to be DNA alleles present that Macartney (or Horsman) do not possess.While the presence of "foreign" DNA alleles might exclude Macartney's DNA from the mixture, the absence of some of the DNA alleles possessed by Macartney's DNA can also exclude Macartney's DNA from the mixture.In other words, a person's DNA can be excluded from a DNA mixture if:EITHER1.A DNA allele is present in the mixture that the person does not possessOR2.A DNA allele that the person possesses is not present in the mixture.In Macartney's case, only the first alternative has been considered.Just taking the data that are presented in the table: I should say, at the outset, that it is not clear from Mr Webb's evidence that there were "missing" alleles, as opposed to alleles which could not adequately be identified. It may be for that reason that Professor Boettcher required the electropherograms and tables of data printed from them. Whatever may be the position in that regard, we ruled that the letter from Professor Boettcher was inadmissible. It is plainly evidence of a kind which could, with reasonable diligence, have been obtained at the trial. Moreover, given the other DNA evidence which was relied upon at the trial, the evidence of Professor Boettcher, even if it could be said to cast doubt on the DNA evidence taken from the saliva, was not such as to raise a doubt as to the appellant's guilt such that the verdict should not be allowed to stand: Mickelberg v The Queen, above, at [130]. In particular, the appellant takes no issue with the proposition that the semen found on the singlet came from him. While he contends that the singlet was not that which had been worn by Ms Horsman at the time of her death and that his DNA was transferred, by police, onto the singlet, I have already said that that there is no substance to the latter contention and, as I shall later explain, there is similarly no substance to the former contention.

Ratio Decidendi

Legal Principle Established

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