R v Beowulf
[2019] ACTSC 64
•19 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Beowulf |
Citation: | [2019] ACTSC 64 |
Hearing Dates: | 18 March 2019 |
DecisionDate: | 19 March 2019 |
Before: | Murrell CJ |
Decision: | Contentious forensic evidence not admitted. |
Catchwords: | EVIDENCE – ADMISSIBILITY – Relevance – Where contested forensic evidence forms part of a circumstantial case for alleged joint commission of murder – Where presumptive testing indicates the presence of the deceased’s DNA and the presence of blood – Where confirmatory testing does not indicate the presence of human blood – Whether the contested evidence is relevant EVIDENCE – ADMISSIBILITY – Unfair prejudice – Where presumptive testing indicates the presence of the deceased’s DNA and the presence of blood – Where insufficient material for confirmatory testing for human blood – Whether the contested evidence is probative – Whether the jury may place undue weight on the contested evidence |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55(1), 137 |
Cases Cited: | DPP v Paulino [2017] VSC 345 DPP v Paulino [2017] VSCA 38; 54 VR 109 R v XY [2013] NSWCCA 121; 84 NSWLR 363 |
Parties: | The Queen (Crown) Melissa Beowulf (Accused) Thorsten Beowulf (Accused) Bjorn Beowulf (Accused) |
Representation: | Counsel Ms M Jones and Mr T Hickey (Crown) Mr J Sabharwal (Accused Melissa Beowulf) Mr K Archer and Ms J Campbell (Accused Thorsten Beowulf) Ms B Morrisoe (Accused Bjorn Beowulf) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird and Co (Accused Melissa Beowulf) Legal Aid ACT (Accused Thorsten Beowulf and Bjorn Beowulf) | |
File Numbers: | SCC 345 of 2017; SCC 346 of 2017; SCC 347 of 2017 |
Murrell CJ
Introduction
The accused are charged with the murder of Katherine Panin (the deceased) on 12 October 2015, by way of joint commission.
The deceased died on the afternoon of 12 October 2015, at 3 Beagle Street, Red Hill, the home that she had occupied with the accused (her daughter-in-law and two of her grandsons). By 4PM, she was lying dead on the steps leading from the back laundry of the house to the backyard, in a position that suggested that she had tripped.
The prosecution case against the accused is circumstantial. The prosecution has not identified a precise cause or mechanism of death.
As part of its circumstantial case, the prosecution relies on forensic evidence establishing the presence of blood and DNA matching that of the deceased on a red kilim rug, which had been located in a hallway a short distance from the laundry door that led to the steps where the deceased’s body was found.
More than four months after the alleged offence, and after it had been dry cleaned, the red rug was seized by police and forensically examined. Ultimately, it was tested at 40 locations for the purpose of locating the presence of blood (by presumptive testing for blood and confirmatory testing for human blood) and to establish that the blood was that of the deceased (by DNA testing at the locations where there was blood).
The prosecution says that the forensic evidence relating to the red rug, which would be given by forensic biologists, Ms Schenk and Ms Keglovic, supports the inference that, on 12 October 2015, there was an altercation between one or more of the accused and the deceased at the location of the red rug, causing the deceased to spill blood, and that the altercation was connected to the death of the deceased.
The accused concedes that the forensic biological evidence relating to testing at rug locations 1, 2 and 24 is admissible, but objects to the tender of test results relating to other locations on the bases that:
(a)It is not relevant under s 55 of the Evidence Act 2011 (ACT) (Evidence Act); or
(b)If relevant, it should be excluded under s 137 of the Evidence Act because its probative value is outweighed by the danger of unfair prejudice to the accused.
The forensic evidence
Testing for blood
Presumptive testing (which identifies blood, but not whether it is human blood) indicated the presence of blood at all but six locations (27–29, 32–33 and 35), i.e. at 34 of the 40 locations.
Confirmatory testing supported the presence of human blood (upper primate blood, assumed to be human blood) at only three of these 34 locations (1, 2 and 24).
10. As to the remaining 31 locations that were presumptively positive for blood, five were not the subject of confirmatory testing (4–7, 18), and the remainder were negative for human blood on confirmatory testing.
11. Location 18 can be disregarded as it was negative for the presence of DNA.
12. There was no confirmatory testing for blood at locations 4–7 because the available sample was exhausted by the presumptive testing, which meant that there was no sample upon which confirmatory blood testing could be undertaken. However, samples were taken from locations 30–37, at either side of each of the locations 4–7. Although five of the eight adjacent samples were positive for blood on presumptive testing, on confirmatory testing each of the eight was negative for human blood. These results support a strong inference that, had the samples taken at locations 4–7 been adequate to enable confirmatory testing, the results would have been negative for human blood.
13. The Crown argued that, as each of samples 4–7 was associated with a significant dark stain, it was much more consistent with any DNA from the deceased that was in the sample having come from blood rather than from saliva or skin, these being relatively pale or translucent substances. Based on the results of presumptive testing and the photographs of the areas from which samples 4–7 were taken, Ms Schenk gave evidence on the voir dire that samples 4–7 were likely to be blood. However, she also said that, as confirmatory testing at adjacent locations had been negative for human blood, it would be dangerous to conclude that any blood at locations 4-7 was human blood.
14. Ms Schenk and Ms Keglovic explained that presumptive testing for blood and confirmatory testing for human blood require different sample amounts (more is required for confirmatory testing) and deploy different means of testing. They said that any difference between presumptive and confirmatory test results could be explained by one of the following:
(a)The tested substance was blood, but not human blood.
(b)The presumptive test had given a false positive for blood.
(c)Inhibitors, possibly including chemicals (perhaps including dry cleaning chemicals) may have affected or degraded the material at the test locations, preventing the antibody/antigen reaction to a human protein upon which confirmatory testing depends. There is no published research on the impact of dry cleaning on the confirmatory test process.
(d)Relevant biological material within the sample may have degraded due to the passage of time or exposure to unfavourable environmental conditions.
(e)The sample was not large enough for confirmatory testing, i.e. the sample amount was below the limit for detection, which is significantly higher for confirmatory human blood testing than it is for presumptive blood testing or DNA testing.
Testing for DNA
15. At locations 1, 2 and 24, where confirmatory testing supported the presence of blood, DNA testing yielded extremely strong support for the presence of the deceased’s DNA (a probability of at least 100 billion times more likely that they contained the deceased’s DNA). As stated above, the accused do not object to the forensic evidence concerning the finding of human blood and the deceased’s DNA at these three locations.
16. However, the accused do object to the evidence concerning findings at other locations. Testing found extremely strong support for DNA matching the deceased’s DNA at locations 4–13, 16–17, 19–25, 30–31 and 37, and substantial support for DNA matching the deceased’s DNA at locations 34 and 36. But, as stated above, confirmatory testing did not support the presence of human blood at those locations.
Other evidence upon which the prosecution relies to support the inference
17. Niels Beowulf-McGowan and Dianne McGowan said that the red rug was removed from its position in the hallway near to the rear laundry door between when they last saw it (in the case of Ms McGowan, on the morning of 12 October 2015), and when they arrived at the scene soon after the deceased was found dead on the steps leading from the laundry to the backyard.
18. The following day, Dianne McGowan says that she saw Bjorn Beowulf scrubbing the carpet underneath where the red rug had previously been positioned. She was aware that Thorsten Beowulf was vomiting and, combined with her observation of the area being scrubbed, she concluded that Bjorn was scrubbing vomit.
19. One prosecution expert (Dr Duflou) gave evidence that the deceased probably died in the hour following 12:39 on 12 October (12:39 being the last time that she was independently verified as being alive). Telecommunications records show that the three accused travelled to Fyshwick between 14:51 and 15:16 on 12 October. The family had a storage area at that location (also referred to as ‘the lock-up’). On 16 March 2016, Thorsten and Bjorn Beowulf had a discussion about whether the rug was still in the storage area.
20. On 13 October 2015, after talking to Thorsten Beowulf, Bjorn Beowulf undertook an internet search for a blacklight torch. Such devices can be used to detect blood that is otherwise not visible.
21. In mid-March 2016, prior to the rug being returned to Dianne McGowan in late March 2016, the three accused had a number of discussions about the need for the rug to be dry-cleaned before it was returned to her.
22. On 20 June 2016, after Thorsten Beowulf was told by police that blood had been found on the rug, he discussed the rug with Bjorn Beowulf and the pair agreed that they should have “gotten rid of it on our way”.
Case law
23. In DPP v Paulino [2017] VSC 345 (Paulino), the accused had been charged with murdering his wife. The prosecution case was wholly circumstantial. The prosecution sought to tender evidence that the deceased’s DNA had been found on the accused’s motor vehicle and on three items of his clothing (boots, and the shirt and jacket that he had been wearing on the evening of the death) in support of an inference that the DNA was deposited on, or transferred to, those items at the time of, or shortly after, the deceased died. The defence objected; relevantly, on the basis that there had been significant ongoing contact between the accused and the deceased, and there were many innocent ways in which her DNA may have found its way on to the items in question.
24. In Paulino at [9], Bell J approved a statement of Angel J in R v Joyce [2002] NTSC 70; 136 A Crim R 465 (Joyce) pointing out that, in Joyce, the DNA results had been open to competing hypotheses, one inculpatory and the other exculpatory, neither of which could be preferred to the other on any scientific basis in evidence. Bell J also referred to DPP v Wise [2016] VSCA 173 (Wise), in which the Court of Appeal upheld the trial judge’s decision to exclude evidence of the accused’s DNA in the underwear of the complainant because innocent transference was an open explanation, and a conclusion of guilty transference would be “wholly speculative”. At [36], his Honour said:
The expert and factual evidence, taken as a whole, does not provide a rational basis for preferring the explanation of the prosecution for the presence of DNA of the deceased on the four items. Innocent deposit or transference explanations are individually and collectively reasonably open.
25. At [37]–[38], Bell J said that he had not considered the relevance of the DNA evidence in isolation from the other circumstantial evidence. At [38], his Honour observed that, looking at the DNA evidence in the context of the evidence as a whole:
a jury would, in my view, have no reasonable basis for determining whether DNA of the accused on the four items was connected with the killing. There is a reasonable explanation for finding to the contrary in each case that the jury could not reject without speculation.
26. It is debatable that this was the correct approach to the issue of relevance in relation to items of evidence that, individually and collectively, were only part of a circumstantial case that the accused was the killer. Whether an inference should be drawn is generally a matter of fact for the jury and the judge should not withdraw evidence simply because an alternative inference is available: R v Kalajzich (1989) 39 A Crim R 415 at 430.
27. Alternatively, Bell J decided that the evidence should be excluded under s 137 of the Evidence Act because, at best, the probative value of the DNA evidence relating to the four items was low and there was a high danger of a jury placing undue weight on the evidence and giving it a persuasive force out of proportion to its actual probative value. His Honour considered that the danger could not be managed adequately by directions.
28. On appeal, the Court of Appeal refused leave to appeal on the basis that the evidence was properly excluded as irrelevant or, alternatively, under s 137: DPP v Paulino [2017] VSCA 38; 54 VR 109. Further, the Court of Appeal decided that the exclusion of the DNA evidence had not substantially weakened the otherwise extremely powerful prosecution case.
29. Weinberg and Priest JJA (Ferguson JA not deciding) considered that the evidence of DNA found on the respondent’s boots and inside his car was not relevant because neither item was said to have a direct association with the alleged offence, and the DNA on each item was quite consistent with an innocent explanation. However, their Honours differed in relation to the other two items, the shirt and the jacket. Unlike Priest JA, Weinberg JA considered that the evidence of the deceased’s DNA on the respondent’s jacket and shirt was relevant, although its exclusion was warranted under s 137 because it had relatively little probative value and there was a danger of the “CSI effect”. At [21]–[23], Weinberg JA made the following points, which are important to the present case:
21. The very real possibility that the DNA found on both the shirt and the jacket may have been recently deposited (and far more recently, perhaps, than the DNA on the shoe and in the car) seems to me to justify the conclusion that this evidence passed the test of relevance.
22. It must be remembered that no individual item of evidence should ever be considered in isolation when determining whether it meets the test of relevance. Thus, for example, the DNA on the shirt must be assessed in light of the fact that there happened also to be DNA on the jacket, both items of clothing having been worn on the day that the deceased was murdered.
23. The DNA on the shirt and the jacket would also have to be assessed in light of the entire body of circumstantial evidence in this case. That would include, of course, the extraordinarily powerful evidence of both motive and opportunity.
30. In R v Ali [2015] NSWCCA 72 (Ali), the prosecution case was that the respondent had digitally penetrated the seven-year-old complainant as they sat on a lounge. Pursuant to s 137 of the Evidence Act, the trial judge had excluded DNA evidence of two male DNA profiles (including one consistent with the respondent’s DNA) at various locations inside and outside the complainant’s underpants, and the presence of blood inside her underpants (based on the presumptive testing).
31. The Court of Criminal Appeal (Hoeben CJ at CL, Adams J and RA Hulme J) concluded that the trial judge had erred in excluding the evidence by usurping the jury function of assessing the weight and reliability of the evidence: at [64]. The Court of Criminal Appeal relied upon the remarks of Basten JA (with whom Hoeben CJ at CL and Simpson J agreed) in R v XY [2013] NSWCCA 121; 84 NSWLR 363 (XY) in relation to s 137, in which his Honour had applied the approach taken in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. At [66] of XY, Basten JA emphasised that the principal articulated in Shamouil has three elements:
(1) in determining admissibility under s 137, the judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case;
(2) it follows from (1) that the judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight;
(3) it also follows from (1) that the judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight.
32. I was also taken to the decision in R v GZ [2015] ACTSC 229, in which the trial judge rejected evidence that the accused’s DNA was found on the interior of the complainant’s underwear. The prosecution contended that the DNA had been transferred from the complainant’s skin by secondary transference, having been initially deposited on his skin by the accused licking her. The defence contended that the location of the DNA could be explained by contamination. The trial judge rejected the evidence on the basis that no expert testimony could assist the jury to determine how the DNA came to be on the complainant’s underwear and there was a real risk that the jury would give the evidence more weight than it was due. In that context, his Honour noted that a jury may only draw an inference from evidence if it was the only rational inference.
33. This decision does not assist me because the report does not clarify whether the DNA evidence was the only evidence in the prosecution case. If the prosecution case was entirely circumstantial and it was the only piece of circumstantial evidence, then I agree with the trial judge that the prosecution would have had to prove that the only rational inference was that it had been transferred from the complainant’s skin after the accused had licked her skin.
Consideration
34. Section 55(1) of the Evidence Act provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
35. Section 137 provides:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
36. The prosecution says that the contentious evidence could rationally affect the assessment of the probability of the existence of a fact in issue, being the inferred fact that, on 12 October 2015, there was an altercation between one or more of the accused and the deceased at the location of the red kilim rug, causing the deceased to spill blood.
37. If the contested evidence went to this issue, then it would be relevant, regardless of whether there were alternative explanations for the presence of the deceased’s blood at various locations on the rug. Taken together with the other evidence referred to at [17]–[22] above, it would go to the fact that the prosecution seeks to establish by inference. Section 55 does not require that evidence be probative to a particular degree for it to be admissible and evidence of only slight probative value is prima facie admissible: IMM v The Queen [2016] HCA 14; 257 CLR 300 at [40].
38. However, the contentious evidence concerning the locations at which confirmatory blood testing was undertaken does not support the inference, even to a slight degree. It is evidence of the presence of the deceased’s DNA and the presence of blood, but it refutes the presence of human blood. Consequently, it provides no support for the proposition that the deceased’s blood was at the relevant locations.
39. As to locations 4–7, had they been the only locations tested, then the evidence of presumptive testing showing blood, combined with the strong evidence supporting the presence of the deceased’s DNA at the locations, and the appearance of the locations (which is consistent with bloodstain), would mean that the evidence was highly relevant.
40. However, other evidence establishes that the presumptive test results for blood at locations 4–7 very probably do not indicate human blood. On confirmatory testing, all eight adjacent test locations tested negative for human blood, as did most other test locations on the rug, despite the fact that most of the other test locations had indicated a positive result on presumptive testing. In the words of Ms Schenk, where a presumptive test for blood is positive but a confirmatory test for human blood is negative, it would be “dangerous” to conclude that any blood at the location is human blood.
41. The evidence of the test results at locations 4–7 is rejected pursuant to s 137 of the Evidence Act because, having regard to the “CSI effect”, the jury would be tempted to place undue weight on the evidence, which, in the context of other forensic evidence, has almost no probative value.
Ruling
42. Except in relation to locations 1, 2 and 24, the evidence will not be admitted.
43. Should the defence suggest that the prosecution inference should be dismissed because forensic testing failed to locate human blood except at locations 1, 2 and 24, the evidence may become admissible in reply, to explain that the deceased’s blood may well have been present and yet, for one of the reasons set out at [14], it was not detected on examination.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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