R v Button - [2001] QCA 133

[2001] QCA 133

COURT OF APPEAL

WILLIAMS JA
WHITE J
HOLMES J

CA No 247 of 2000

THE QUEEN

FRANK ALAN BUTTON (Appellant)

BRISBANE

..DATE 10/04/2001

JUDGMENT

WILLIAMS JA: As I said in the course of argument, today is a black day in the history of the administration of criminal justice in Queensland. The appellant was convicted of rape by a jury and has spent some approximate 10 months in custody in consequence of that conviction.

DNA testing carried out at the insistence of his lawyers after that jury verdict has now established that he was not the perpetrator of the crime in question, and indeed the recent DNA testing would appear to have identified some other person as the perpetrator of that crime.

What is of major concern to this Court is the fact that that evidence was not available at the trial. A scientist from the John Tonge Centre gave evidence of attempts prior to trial to establish a DNA profile from intact spermatozoa which were found in swabs taken from the complainant girl's vagina. Apparently there was a scientific explanation for the inability to obtain a DNA profile at that time with respect to the sperm.

What is disturbing is that the investigating authorities had also taken possession of bedding from the bed on which the offence occurred, and delivered those exhibits to the John Tonge Centre. No testing of that bedding was carried out prior to trial. The explanation given was that it would not be of material assistance in identifying the appellant as the perpetrator of the crime.

That is true in a sense, but of course DNA testing has a two-fold purpose: that of identifying the perpetrator of a crime, and secondly, that of excluding a possible offender as being the perpetrator of the crime. Indeed, as it turned out in this case, it was the subsequent testing of staining on the sheets which gave the scientists their breakthrough and were able to establish a sufficient match between male staining on the sheets and the spermatozoa to conclusively establish that the appellant was not the perpetrator of this crime.

The Director of Public Prosecutions in her submissions to this Court did refer to the fact that the John Tonge Centre is under-resourced, and that is a matter which from time to time has been raised in these Courts. Judges have heard from time to time of committal proceedings having to be adjourned and the dates for criminal trials postponed because testing at that Institute has not been completed.

It may well be that laboratory testing is expensive, particularly if it is to be as extensive as in my view it should be, but the cost to the community of that testing is far less than the cost to the community of having miscarriages of justice such as occurred here. The cost to the community in a case like this includes not only the costs of both sides of the aborted trial, but 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.

Continue reading R v Button

Details

AGLC: R v Button [2001] QCA 133
Case: [2001] QCA 133
Decision Date: 10/04/2001

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal against a conviction for rape by Frank Alan Button. The appeal was granted after DNA testing carried out after the conviction established that he was not the perpetrator of the crime, and instead identified another individual as the likely offender. The appeal raised issues about the availability of DNA evidence at the time of the trial and the adequacy of the resources available to the John Tonge Centre, the major forensic laboratory in Queensland. The Court expressed concern that the evidence which exonerated the appellant was not available at the time of trial, and that the laboratory had not tested the bedding from the scene of the crime. The Court noted that DNA testing has two purposes: to identify the perpetrator of a crime and to exclude a possible offender as being the perpetrator of the crime. The Court emphasised the importance of ensuring that appropriate evidence is available to the Courts in all cases, and highlighted the need for adequate resources at the John Tonge Centre. The Court also noted that the Director of Public Prosecutions had undertaken to investigate aspects of the police investigation into the complaint. The appeal was allowed, the conviction was quashed, and there were no further restrictions on the use of the appellant's name.

Orders