R v Butler

[2001] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

R v Butler [2001] QCA 385

PARTIES:

R
v
BUTLER, Wayne Edward
(appellant)

FILE NO/S:

CA No 51 of 2001
SC No 511 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2001

JUDGES:

Davies and Thomas JJA and Philippides J
Judgment of the Court

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - GENERALLY

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - OTHER CASES - where sole evidence against accused, apart from opportunity, was DNA evidence - appellant convicted at trial - whether DNA evidence reliable - whether reasonable possibility that contamination of sample occurred - DNA analysis of sample occurred over 13 years after commission of offence - whether degradation of sample was a reasonable possibility - where prior ABO test yielded an inconsistent result - discussion of expert evidence on DNA and ABO testing

COUNSEL:

P J Callaghan for appellant
R G Martin for respondent

SOLICITORS:

Legal Aid Queensland for appellant
Director of Public Prosecutions (Queensland) for respondent

1. THE COURT:  On 13 February this year the appellant was convicted of murdering Celia Natasha Douty probably on 1 September 1983.  He appeals against that conviction on two grounds.  The first is that the verdict was unsafe and unsatisfactory.  The second is that the learned trial judge erred in failing to uphold the submission that there was no case to answer.

1. Ms Douty was murdered when she was apparently sunbaking on a beach at Brampton Island.  Her body was discovered in some undergrowth in a place called Dinghy Bay, unclothed but covered with a red towel.  She had suffered extensive head injuries.  Her clothes and personal possessions, including a handbag, were missing and were never found.

1. The appellant had visited the Island on a day trip from Mackay with his wife on the day on which Ms Douty was probably murdered.  He left his wife for a period of about four hours telling her that he was going jogging or walking around the beach, around the island.  When he returned to his wife he showed no signs of distress and there were no readily apparent marks or blood stains on him or on his clothing.

1. The red towel was found to have both blood stains and semen stains on it.  The semen stains were located in six different places on the towel.

1. The sole evidence on which the appellant was convicted, apart from the fact that he had an opportunity to kill the deceased, was DNA evidence that it was his semen that was found on the red towel.  The appellant did not give evidence.

1. The DNA tests, which it was said proved this, were done in February 1997.  A DNA test of the appellant's blood sample on 6 February yielded a result;  and a DNA…