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R v Berry

R v Berry

Case [2007] VSCA 202 21 September 2007

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN
THE QUEEN	No 367 of 2005
v
nathan daniel BERRY
THE QUEEN	No 366 of 2005
v
STEPHEN MATTHEW WENITONG

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JUDGES:	BUCHANAN, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2007
DATE OF JUDGMENT:	21 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 202	3^rd Revision 25 October 2007 – [18], [31], [84], [110]

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CRIMINAL LAW – Admissibility of DNA evidence – Admissibility of statistical analysis in relation to mixed DNA of a number of contributors – Possible contamination of DNA evidence – The use of likelihood and random occurrence ratios in the case of mixed DNA – Conflicting expert opinions – Jury’s ability to understand complex expert evidence – Adequacy of directions – Admissibility of expert opinion as to footprints enhanced by Luminol – Whether speculation – Adequacy of directions – Evidentiary value of exculpatory statements made to investigators – Jury wrongly directed that not evidence of the truth of their contents – Misdirection immaterial – Whether R v Edwards direction required where Crown alleged offenders concealed incriminating evidence by ‘cleaning up’ after crime – Whether direction required as to whether either applicant was accessory after fact when not raised as an issue by defence.

SENTENCING – Time spent in custody prior to sentencing which does not qualify as pre-sentence detention – Time served for other offences whilst on remand – Time in custody for an offence on which offender acquitted – Youth at time of offence – Offence committed in prison setting – Aggravating factor – Parity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K E Judd with Ms K Anderson	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Berry	Mr M J Croucher	Clarebrough, Pica
For the Applicant Wenitong	Mr R A R Lewis	Lethbridges

BUCHANAN JA:

In my opinion each application for leave to appeal against conviction and sentence should be dismissed for the reasons stated by Redlich JA.

REDLICH JA:

On 2 March 1998 Brian Edwards was murdered whilst a prisoner in the Cassia Unit at Barwon Prison. He had been transferred from Port Phillip to Barwon Prison only a few hours. At the time, both Nathan Daniel Berry and Stephen Matthew Wenitong were inmates of the same Unit. It was the Crown case that while acting in concert, they stabbed the deceased a number of times when he was in his cell.

Following a five week trial in the Melbourne Supreme Court, Berry and Wenitong were each found guilty of one count of murder. Both have appealed against their conviction and sentence.

Both applicants allege that the trial judge erred in admitting into evidence analysis of the DNA found upon a sock in the prison laundry and expert evidence of likelihood ratio calculations. The sock contained a mixed DNA sample of at least four persons. The applicants allege further that the directions given in relation to that and other DNA evidence was inadequate in a number of respects.…

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.

Continue reading R v Berry

Details

AGLC: R v Berry [2007] VSCA 202
Case: [2007] VSCA 202
Decision Date: 21 September 2007

CaseChat Overview and Summary

In the matter of R v Berry, the respondents appealed against their convictions and sentences, raising a series of issues regarding the admissibility and weight of evidence, as well as the adequacy of jury directions. The court was required to determine the admissibility of statistical analysis in relation to mixed DNA evidence, which included potential contamination issues, and the use of likelihood and random occurrence ratios. The court also needed to consider conflicting expert opinions on the subject and the jury's capacity to comprehend complex expert evidence, as well as the adequacy of directions provided to the jury. Further, the court examined the admissibility of expert opinion on footprints enhanced by Luminol and whether it amounted to speculation. The court also assessed the evidentiary value of exculpatory statements made to investigators and the adequacy of directions given to the jury regarding these statements. Additionally, the court explored whether a direction on the concealment of incriminating evidence by the alleged offenders was required, as well as whether a direction on whether either applicant was an accessory after the fact was necessary when the defence did not raise this issue.

The court found that the trial judge did not err in admitting the statistical analysis of the mixed DNA evidence, even in the face of potential contamination. The court held that the statistical analysis was relevant and could assist the jury in understanding the evidence, despite the conflicting expert opinions. The court also concluded that the jury was capable of understanding the complex expert evidence, and the trial judge provided adequate directions to the jury. Furthermore, the court found that the expert opinion on the footprints enhanced by Luminol was admissible and not speculative. The court also held that the trial judge did not misdirect the jury on the evidentiary value of the exculpatory statements made to investigators, and any such misdirection was immaterial. The court found that no direction on the concealment of incriminating evidence by the alleged offenders was required, as well as no direction on whether either applicant was an accessory after the fact, as these issues were not raised by the defence.

The court found that the respondents' convictions were safe and accurate, and the sentences imposed were appropriate. The court held that the time spent in custody prior to sentencing did not qualify as pre-sentence detention, and time served for other offences whilst on remand and time in custody for an offence on which the offender was acquitted were not to be considered. The court took into account the aggravating factor of the offence being committed in a prison setting, as well as the fact that the respondents were youths at the time of the offence. The court concluded that the sentences imposed were fair and just, taking into account all relevant factors, including parity with similar cases.

The court dismissed the appeals against conviction and sentence, upholding the respondents' convictions and sentences. The court found that the trial judge did not err in admitting the evidence or providing directions to the jury, and any errors were immaterial. The court also held that the sentences imposed were appropriate, taking into account all relevant factors, including the aggravating circumstances of the offence. The appeals were dismissed, and the respondents' convictions and sentences were affirmed.

Orders