R v Fitzherbert
[2000] QCA 255
•30 June 2000
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 1998DIVISION: 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 2000JUDGES: Pincus and Davies JJA, Moynihan J
Judgment of the CourtORDER: 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 respondentSOLICITORS: The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
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.
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.
The outcome of the appeal, then, depends upon a consideration of the appellant's criticisms and Cox's answers to them, but before coming to that topic, it is necessary to draw attention to two matters.
The first is that before the trial the defence, having obtained relevant laboratory documents, consulted an expert (the appellant suggests there might have been two) about them. The evidence shows that the documents were sent to Dr Bentley Aitchison at the Victorian Institute of Forensic Pathology to review Cox's work. The appellant has not sought to inform us what advice was obtained from the expert engaged by the defence, but one might infer that the suggestion was made that the point worth attacking was the statistical basis of the DNA profiling; that was dealt with in defence counsel's cross-examination at the trial. The case is not one in which the laboratory documents now sought to be relied on to vitiate the conviction were unavailable to, or not utilised by, the defence before the trial.
The second point is that there were circumstances proved connecting the appellant with the deceased, although he denied to police having either met her or spoken to her on the telephone. There was evidence of animosity between the deceased and Virginia Houston, a friend of the appellant, relating to an organisation called the Cat Protection Society. The deceased was the Society's president; the appellant's defacto wife was a member of it and they were both friends of Virginia Houston, recently deposed as the Society's treasurer. The appellant had applied to be a member of the Society. The evidence showed that the appellant had telephoned the deceased on an occasion two or three days before she was killed. There was also reason to think that he had called her again the following morning. There was some alibi evidence which was, it appears, vigorously attacked by the Crown at the trial. The DNA evidence must be considered against the background that the appellant was a person who knew of the deceased, had been in telephone contact with her not long before her murder and might well have had reason to dislike her.
The DNA profiling which is in issue relates to 14 samples of blood or other bodily substances. The results the Crown relies on are set out in Exhibit 52. For simplicity, we have numbered the samples there listed 1 to 14, from the top. The 12th sample is what is described as a "reference sample" of the appellant's blood. Although in his argument the appellant did not accept that the results, even for that sample, were honestly recorded, it would have been a bold step on the part of the laboratory to do otherwise. The composition of the DNA is ordinarily the same through all the cells of an individual and ordinarily does not vary with time; it would have been a simple matter to show any error in relation to the alleged results of the 12th sample. For reasons which are unclear, there was not a "reference sample" in relation to the deceased's blood; samples 1 to 5 taken from various places at the crime scene were alleged to be her blood. Samples 6 to 9 were alleged to be samples of blood from the crime scene, the profiling matching the reference sample of the blood of the appellant. Samples 10 and 11 were said to be the DNA profiles of two samples of material taken from a handkerchief of the appellant, which samples also matched the four crime scene samples. Sample 13 is from Virginia Houston and is not of present significance. Sample 14, about which there was much discussion at the hearing before us, was said to be a mixture of the blood of the deceased and that of the appellant, found mixed with water in a plastic container beside a sink at the crime scene.
The process of identifying blood by DNA profiling is based on the fact that nearly all the genetic material of a human being is contained in the nucleus of each cell in the person's body and in bodily substances such as blood. The DNA, leaving aside the possibility of a mutation, will be the same from cell to cell. A small part of the DNA "codes for" – i.e. determines the composition of – molecules from which the body is made up; but most of it is "junk DNA", which may have some function but does not appear to "code for" any bodily molecules. It is this "junk DNA" on which the profiling is done and the reason for that is that such DNA can be quite variable from person to person, whereas the "coding" DNA is extremely similar from person to person. To put this another way, the "junk DNA" is profiled because it is distinctive of a particular individual.
This distinctiveness is critical in considering the worth of DNA profiling. The chance that two people other than identical twins would have the same DNA is practically nil. The DNA is made up of what are called "base pairs" and there are billions of them in each human cell. The profiling process involves measuring the length (the number of "base pairs") of the DNA at nine selected sites, called loci, along the DNA. The way the measurement is done is by determining the time taken for the DNA at that site to make its way through a gel. The greater the length of a piece of DNA, the slower it moves through the gel.
At each locus there will be found two lengths of DNA, one of which comes from the person's father and the other from the mother. Each is called an allele. After the profiling is done a number, for example 13 or 18, is ascribed to each allele at that locus; the number, which depends entirely on the number of base pairs in the allele, identifies that allele. Profiling of many samples of DNA has enabled information to be collected showing the frequencies which particular alleles – for example number 13 or number 18 – are found at particular loci. It might be found that a certain percentage of people have allele 13 and a certain percent have allele 18, at a particular locus. It was in this area that the attack on the DNA evidence was made below; that is, it related to the validity of the statistics used to determine the chances that a sample of blood had a particular allele at a particular locus.
To illustrate in a simplistic way the calculations which are done, suppose that the alleles found at each of the nine loci in a DNA "reference" sample have the same frequency – say 10 per cent. So that 10 per cent of people, chosen at random, will on DNA profiling have the alleles found at each locus. Then the chance that a particular individual will have the alleles found at the first locus is 1 in 10 and the chance that the same individual will also have the alleles found at the second locus is 1 in 100, and so on. So the chance that a particular individual, randomly chosen, will have the specified alleles at each of the ten points is ten multiplied by itself eight times, or 1 in a billion. If the chance of finding the specified alleles at each of the loci is only 1 in 20, then the odds go up to 1 in over 500 billion. The precise odds are in the present case of no real consequence, since it could not be disputed that if the results obtained are correct then the odds against the blood (other than that attributed to the deceased) found at the scene not being that of the appellant are enormous. As we have explained, there were four samples from different places at the crime scene matching the appellant's blood, and there was also said to be a mixed sample, containing both the deceased's and the appellant's blood.
The method used involves amplifying segments of the DNA contained in the sample, at the nine loci which are to be the subject of the profiling. That is, the amount of that DNA is multiplied, by a standard process. Then the arrangements are such that each amplified segment moves through a gel, the largest pieces taking the longest time to get through. The time each allele takes to emerge is a function of its length. The computer draws a graph, the Y axis of which shows (in effect) the amount of each allele found at the nine loci and the X axis shows the length of each allele. Some of the criticisms made by the appellant appear to us to have been based on a misunderstanding of this point; although the amount of allele found (the Y axis) is of significance for various purposes explained in the evidence, it is the length of each allele – the number of base pairs in it – indicated on the X axis which identifies the allele and enables one of the standard numbers – e.g. 13 or 18 – to be ascribed to it.
From the graph the computer generates the scientist is able to see how long each allele took to traverse the gel and that, apparently from standard tables, gives the length of that allele, to which allele the number of, say, 13 or 18 is ascribed. The appellant criticised the method used because, as he pointed out, the graph initially produced by the computer does not have any numbers on it. Numbers are printed out below the graph, but they do not include the allele numbers, which are as we have said ascribed in accordance with the length of each allele. There was no explanation of why neither the graph nor the numbers printed out below it give the number of each allele – e.g. 13 or 18 – but the point has no present significance. In some instances, Cox's interpretation has been written in on the graph, showing the numbers of the alleles identified.
The type of graph just discussed, examples of which are contained in Exhibit 51 and also in materials annexed to the appellant's affidavit, is called an electrophoregram. Another computer program will give what is called a "genotyper printout". In contrast to the electrophoregram (which we shall call simply "the graph"), the genotyper does give allele numbers, set out in printed "boxes". Cox's evidence was however to the effect that the genotyper gives a "limited graphical representation" of the graph and is a "secondary tool", the "definitive source" being the graph. Comparisons of the graph with the genotyper printout illustrate this; in some instances a spike on the graph which is identified as an allele does not produce any allele number on the genotyper.
Apart from the graph and genotyper printouts, other documents are or were at relevant times used in the laboratory in the process of profiling. There was a journal in which results were entered and, according to Cox's evidence, those results were for reasons which were explained transcribed (arranged in a different way) on to sheets entitled "DNA profile collation sheet – Profiler Plus"; We shall call the latter simply "collation sheets". Our impression is that the practice of copying the information from the journal to the collation sheets was not rigidly followed; there is in particular reason to think that the allele numbers with respect to sample 14 went directly from the graph onto the collation sheets.
Another reproduction of the information in question which is referred to in the evidence is said to have been on computer spreadsheets. It does not appear that these were routinely printed out; in any event, none of them is before us. Next, the information was set out in a statutory declaration made by Cox and lastly it is to be found in Exhibit 52, referred to above. Much of the appellant's argument was directed to what were said to be strange discrepancies between or odd features of these documents.
A problem inherent in appeal, insofar as it is based on the documents other than what we have called the graphs, is that it is the graphs whose content ultimately matters. They still exist and if they were wrongly interpreted by Cox or anyone else in the laboratory, that would have been expected to emerge from the defence expert's examination of the graphs. Perhaps conscious of this, the appellant suggested that Cox had fraudulently manipulated the computer so that it produced fake graphs. This appears to us to be a fanciful suggestion, which has nothing to support it. All the graph printouts are computer dated. The graphs relating to samples 6, 7, 8 and 9 were produced months before the comparison samples, numbers 10 and 11 (handkerchief) and 12 (blood), were available to be profiled. That is, the supposed faker or fakers could hardly have hoped to escape detection, because the graphs relating to blood found at the scene were in existence and computer-dated long before they had the opportunity to profile the samples which undoubtedly came from the appellant – numbers 10, 11 and 12. The appellant submitted, in support of his fraud theory, that Cox's expertise was such that he was able himself to write the genotyper program. Cox says this is not so and that it is a standard program, produced at great expense in the United States.
For the reasons so far given, the case does not appear to be one in which the Court should be inclined to grant a new trial on the basis of further evidence. The fact that evidence of the type in question was available to and apparently studied by the defence before the trial is an objection, although not a fatal one. But when it is considered that the new case put forward in essence is one of completely faked results, there being not a shred of evidence to support that conclusion, it is seen that the appellant's contentions can hardly succeed.
It is desirable, however, to explain those of the many detailed points sought to be made by the appellant which seem to merit discussion. They are, he argues, such as to show complete dishonesty on the part of the testing laboratory and in particular Cox. In dealing with the appellant's criticisms we shall give, where it seems necessary, affidavit page references; paragraph references will be given for Cox's affidavit.
The appellant complains of the fact that Exhibit 52 shows "mixture" at each locus for sample 14 and also he makes other criticisms related to this, which may conveniently be dealt with together. We shall refer to locus 1, locus 2 and so on instead of the more elaborate designations shown in Exhibit 52; that is, locus 1 will be that designated D3S1358, locus 2 that designated as D8S1179, and so on.
The graph of the profile in sample 14, designated in Exhibit 52 "mixture", is said to be a mixture of male and female blood, for reasons which we do not here set out. The principal grounds upon which the results obtained are criticised are that, instead of each of the alleles in the deceased's samples and the appellant's samples precisely matching each of the alleles at the same locus in the mixed sample there are instances in which that is not so. The relevant graph, part of Exhibit 51, shows alleles 14, 15 and 16 at locus 1, whereas neither of the deceased's nor appellant's samples contains allele 14. As to that, the explanation given is that a spike on the graph shown as allele 14 was identified as a "stutter", an artefact of the computerised profiling process, not in truth representing an allele. At locus 5 the mixture graph shows alleles 29 and 31.2, being the alleles present at that locus in the deceased's samples, without those (27 and 30) in the appellant's samples. There is a similar difficulty with respect to locus 9, where one of the appellant's alleles (18) did not show up on the graph. Cox's explanation is to the effect that there are particular difficulties in detecting alleles in mixtures. He says that, especially at the larger sized loci, a component present in a smaller concentration may not be amplified. He describes the interpretation of multiple alleles as "complex".
It should be added that the appellant also draws attention to locus 8, in relation to which the mixture graph is said to show alleles 8, 9 and 10, with uncertainty about the 9 indicated. If the graph is correctly interpreted as showing alleles 8, 9 and 10 at that locus then there is no discrepancy, but if the 9 is incorrect then there is an allele missing, by comparison with the appellant's samples.
If one ignores the four alleles to which we have referred, there are still 5 loci left, in relation to the mixture. The graph shows, for example, alleles 10, 13, 14 and 15 for the mixture at locus 2 and at that same locus the relevant graphs show 14 and 15 for the deceased's samples and 10 and 13 for the appellant's samples. At locus 3 the graph shows 11, 12 and 13, which are precisely the alleles present at that locus in the other samples. It shows 16, 17, 18 and 19 at locus 4, again being just the alleles present in the other samples. The prospect that there would be, by chance, a perfect match at each of the five loci is a matter which cannot, on the evidence, be represented in terms of odds; but the chances against that happening must be very high indeed.
The appellant criticises the representation of the results of the profiling in the various documents which are available: the journal, the collation sheet and the statutory declaration. The reason for these discrepancies does not, in our opinion, in all instances clearly appear from the evidence. We have mentioned that Cox's evidence was to the effect that the practice is to write in the journal the result of the profiling and then copy that into the collation sheets. We have suggested that this practice does not appear to have been universally followed. An example is locus 4 of the mixture, where the graph shows alleles 16, 17, 18 and 19 and the journal only 17 and 18. We note that the journal shows the result recorded for the mixture as having been obtained on 30 March 1998, whereas the graph, being part of Exhibit 51, is dated 8 April 1998. It seems possible, therefore, that the process was re-run and that the journal shows an earlier mixture result, which did not bring out two of the alleles. The collation sheet represents the graph result, not that in the journal. A similar comment applies to locus 5. One might be permitted to question whether the records other than the graph itself should not be kept in a fashion which enables outsiders more easily to comprehend what has been done. But the matters to which we have referred go no distance to prove a case of fraud. There is no reason to think that the graphs are other than a true representation of the results obtained.
The appellant advanced some argument based on the fact that a letter "w" is to be found attached to allele numbers in the documents. He regards this as suspicious, on the supposition that it shows that the "reaction" was a weak one. Cox says that the "w" means merely that one component is weaker than the other. The appellant says (4) that Exhibit 52 has the word "mixt" indicating the composition of the allele at each locus, instead of setting out the actual figures. Cox gives an explanation for this which we do not fully comprehend (para 16). But there can be no question of concealment, for all the figures are set out on the relevant graph, in the preceding exhibit, no 51.
The appellant complains of the absence of profiling of some of the samples which were obtained from the crime scene. This aspect is discussed by Cox in paras 22 and 23. The point seems to have no real substance. There is no reason to doubt, considering the numerous stab wounds, that most of the blood at the scene belonged to the deceased; all of the other samples from the scene which produced a result matched the appellant's DNA. The appellant complains that a result for a sample numbered 24 is crossed out in the records. This is said by Cox to have been simply a deletion of an erroneous entry and that appears credible.
At p 23 the appellant makes a point about the use of what he says is the expression "NUP". Cox says the initials represent "NVP" not "NUP", standing for "no visible product". The explanation in our opinion dispels any mystery there might have been. The appellant also says, accurately, that the numbers of the samples in the left hand column of the journal are not in sequence. Cox (38) says that a reason or the reason is that samples sometimes are retested, so older numbers can follow newer numbers. The appellant has set out an elaborate discussion of a sample of blood on a piece of cardboard from the crime scene, which turned out on the evidence to be his blood. We have not found it easy to follow the basis of the complaint, but it appears to be essentially that it is possible to interpret the evidence of the officer who took that sample as meaning that, rather than cutting out the relevant piece of cardboard, he swabbed it. There is in truth no reason to doubt that, as Cox says, he tested a piece of cardboard which had been cut out (para 48).
The latter part of the appellant's affidavit contains arguments which, although rather elaborate, have less cogency than those in the earlier part. The appellant says in effect that he has not had access to information relating to sample no 8 (as numbered by us in Exhibit 52). The complaint has no substance, since Exhibit 51, which was tendered at the trial included the sheets marked "C1", containing both the graph and genotyper printout relating to that sample.
At p 63 and following of the appellant's affidavit there is much discussion of a lack of correspondence between numbers used in the laboratory documents. It would no doubt have been more convenient, at least from the point of view of outsiders, if there were no such lack; but the point seems to have no other relevance.
Then the appellant complains that part of the genotyper printout does not show peaks where alleles are said to have been identified. This seems to be an irrelevant criticism. Cox's evidence is that it is the graph which requires examination to determine what alleles are present; the genotyper printout is a derivative and a less useful source; see para [13] above. The same point answers the criticisms made at pp 70 and 71 of the affidavit where the appellant discusses peak heights appearing, or not appearing, in the genotyper printout but shown in the graphs.
Conclusion
There was evidence, contradicting what the appellant told the police, that he had been in contact with the deceased within a few days before her murder and also evidence that he might have had reason to feel rather hostile to her. These circumstances did not, of course, show that he killed her. But the DNA profiling evidence showed that his blood was found at the place where the deceased was killed and was, unexplained, enough to support the conviction. The further evidence about the DNA profiling on which reliance is now placed appears to have been, at least in large part, available to and expertly examined on behalf of the defence below. It is said that the further evidence shows that the recorded results of DNA testing relied on by the Crown below were fraudulent and faked. There is nothing to support that and in our opinion the appeal should be dismissed.
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