R v Fitzherbert

[2000] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fitzherbert  [2000] QCA 255

PARTIES:

R
v
FITZHERBERT, Andrew Richard
(appellant)

FILE NO/S:

CA No 283 of 1999
SC No 549 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 June 2000

DELIVERED AT:

Brisbane

HEARING DATES:

20 March 2000
22 May 2000

JUDGES:

Pincus and Davies JJA, Moynihan J
Judgment of the Court

ORDER:

Appeal against conviction 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 – MODES OF PROOF – CIRCUMSTANTIAL EVIDENCE – Crown case relied heavily on DNA evidence – appellant convicted at trial – whether DNA evidence reliable – whether evidence of fraud

COUNSEL:

The appellant appeared on his own behalf
P F Rutledge for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  This is an appeal against a conviction of the murder of one Kathleen Marshall.  She was stabbed to death in her veterinary surgery on Thursday 26 or Friday 27 February 1998 and her body was found on Sunday 1 March 1998.  The allegation that the appellant was the killer was not made until four months later and that was on the basis that, so the Crown asserted, blood stains found at the scene of the murder were made by the deceased's blood and the appellant's blood.  This followed, the Crown alleged, from the results of DNA profiling.

1. The Crown case could not have succeeded unless the jury accepted that the blood at the scene was that of the appellant, as well as the deceased's.  In his appeal, which he chose to argue himself, the appellant has focused entirely upon this aspect of the case, that is, the DNA profiling.  If the evidence of the results of that profiling is accepted then, as it appears to us, the chance that the Crown erroneously identified the appellant as the killer is very small.  But the appellant argues that an analysis of the documents generated in the course of the DNA profiling shows that the results were faked.  His contention is that he was convicted by deliberate fraud on the part of the staff at the laboratory, by whom the profiling was done, and in particular by fraud on the part of the scientist in charge of the case, K J Cox.  The appellant embodied his criticisms of the profiling process, which were said to show the fraud he alleged, in a lengthy affidavit making many points against the results said to have been achieved.  Affidavits from Cox in answer to the criticisms were filed;  the appellant did not choose to cross-examine Cox but continued to assert fraud against him.

1. The outcome of the appeal, then, depends upon a consideration of the appellant's criticisms and Cox's answers to them, but before coming…