R v Domokos, Virag & Mica (No 2) No. DCCRM-02-125

[2003] SADC 151

R v DOMOKOS, VIRAG & MICA (No 2)
[2003] SADC 151

Judge Anderson
Criminal

1. Each of the Accused Virag and Mica sought, in their respective Rule 9 Notices, to have excluded the opinion as to their handwriting by the forensic scientist, Ms Birchall.

2. The objection of the Accused Virag was in relation to the opinion expressed by Ms Birchall in her statement dated 5 February 2003.

3. Mr Aitken of counsel for this Accused submitted that because of the contents of the letter of instruction to her from the Crown dated 29 January 2003, she was presented with documents said to be in the hand of the Accused when in fact what was intended to be sought from her was her opinion in relation to the provenance of those items.

4. The documents here concerned are the Travelex documents set out on pages 5, 6 and 7 of the booklet entitled “Overseas Money Transfer” and handed up during submissions.  These documents bear the dates 16 March 2000, 22 September 2000 and 5 October 2000.

5. Mr Aitken submitted that because of the nature of the request to her, Ms Birchall has always assumed that these documents were in the hand of the Accused and consequently has not applied a proper scientific method so as to enable her to reach the conclusion set out in paragraph 1.1 of her opinion.

6. However, a further consideration of her statement indicates in paragraph 5.1 she asked herself this question under the topic “Examination Requested”:

   “Whether or not the writer of the specimen Josef VIRAG signatures appearing on the Bail reporting signature card listed as Item 8 wrote the questioned signatures appearing on the three (3) Travelex MONEY TRANSFER forms listed as exhibits 859311/4, 859311/2 and 854120/4.”

7. Perusal of her working papers, which were also handed up during submissions, indicates on sheet 0300487 20 that she has correctly categorised the bail reporting form signatures as “Specimen” and the signatures on the three documents I have identified as “Questioned”.  Set out on this sheet are her observations and conclusions which accord with what she has set out in paragraph 1.1 of her statement.

8. I am not of the view that she has acted upon an incorrect assumption in the manner in which she has reached her conclusion.  An analysis of her working papers show that a methodology has been used to reach her conclusion.

9. In relation to the statement of Ms Birchall of 8 July 2003, where she has expressed a further opinion in relation to the writing of the Accused Virag, Mr Aitken submitted that because of the earlier information she received, her opinion is affected by bias against this Accused.

10. This submission is in relation to the Travelex documents set out at pages 3 and 4 of the same booklet.  They are dated 7 June 2000 and 16 June 2000.

11. Of course, for bias to be perceived, it is necessary to have a basis in fact.  As there is no demonstrated error in the methodology relating to Ms Birchall’s first opinion, or put another way, as I am satisfied from her working papers and their numerical order that she approached her task correctly, there is no basis upon which to say her earlier conclusion was incorrectly reached so as to in some way tarnish her subsequent opinion.

12. Again, in relation to the second enquiry, the “Specimen” was the bail reporting card where the signature of the Accused Virag was not in doubt.

13. Paragraph 5.1 of that report poses the request correctly and paragraph 6.1 sets out her “Observations/Findings” in relation to this Accused.

14. I am satisfied that there is no obvious incorrect approach to the analysis so as to reflect upon her opinion set out in paragraph 1.1 of her statement.

15. Mr Millsteed QC submitted that there was no basis to conduct an examination of Ms Birchall on the voir dire as Mr Aitken had accepted her expertise.  In this circumstance, Mr Millsteed QC sought support for his opposition to such an examination from the statement of King CJ in R v Bonython (1984) 38 SASR 45 @ 47 when the learned judge said:

    “Where the witness possesses the relevant formal qualifications to express an opinion on the subject, an investigation on the voir dire of his methods will rarely be permissible on the issue of his qualifications.  There may be greater scope for such examination where the alleged qualifications depend upon experience or informal studies.  The trial judge must have a wide discretion as to what may be investigated on the voir dire and the scope for interference by an appellate court with the way in which the discretion is exercised must be limited.  Generally speaking, once the qualifications are established, the methodology will be relevant to the weight of the evidence and not to the competence of the witness to express an opinion.”

16. I agree with the submission that criticism of how Ms Birchall went about her tasks is relevant to the weight which may be attached to her evidence, but not its admissibility.

17. The application for Ms Birchall to be examined on the voir dire in this regard is refused.

18. Mr Birchall of counsel also made submissions in relation to the second statement of Ms Birchall within the scope of paragraph 3 of the Rule 9 Notice filed on behalf of the Accused Mica.

19. However, these submissions did not go to the scientific method adopted by Ms Birchall, but rather to the fairness of their use having regard to the manner in which the specimen signatures were obtained.

20. I have refused this application to exercise my discretion to exclude these documents for other reasons.