R v Gum

Case [2007] SASC 311

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GUM

[2007] SASC 311

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice Kelly)

22 August 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - SEXUAL OFFENCES

Appellant convicted after trial by jury for two counts of rape - prosecution counsel in closing address referred to similarities between the two offences - whether trial judge was required to give a propensity warning - discussion of principles relating to propensity evidence - Held: no risk of impermissible reasoning by jury, direction not required in order to avoid miscarriage of justice.

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF

Appellant argued chain of evidence relating to DNA samples and analysis was not conclusively established - Held: sufficient evidence of link to enable relevant conclusion to be drawn.

Evidence Act 1929 (SA) s 45a and s 45b, referred to.
Dimitriou v Samuels (1975) 10 SASR 331; Pfennig v The Queen (1995) 182 CLR 461; Makin v Attorney-General (NSW) [1894] AC 57; Thompson v The Queen (1989) 169 CLR 1; Director of Public Prosecutions v Boardman [1975] AC 421; Director of Public Prosecutions v P [1991] 2 AC 447; Moorov v H M Advocate (1930) JC 68; Hoch v The Queen (1988) 165 CLR 292; Martin v Osborne (1936) 55 CLR 367; R v Perry (1982) 150 CLR 580; Phillips v The Queen (2006) 225 CLR 303; R v Armstrong (1990) 54 SASR 207; R v Straffen [1952] 2 All ER 657; The Queen v Schlaefer (1984) 37 SASR 207; R v J (No 2) [1998] 3 VR 602; KRM v The Queen (2000) 206 CLR 221, applied.

R v GUM
[2007] SASC 311

Court of Criminal Appeal: Duggan, Vanstone and Kelly JJ

  1. DUGGAN J.         The facts of this matter are set out in the judgment of Vanstone J.

  2. I agree with the conclusion and reasons of Vanstone J in relation to the first ground of appeal which raised the issue of the DNA chain of evidence.

  3. The particular concern expressed by counsel for the appellant in relation to the other ground of appeal arose out of comments made by the prosecutor in her closing address to the jury concerning similarities between the alleged rapes on the two victims.  The prosecutor said:

    Whoever raped these women, you might think, has watched them.  He must have. Both women were alone in their homes at the time of the rapes: A because she lived alone, and B because her housemate was in Bali. Both women, you might think, had parked their cars in full view so that you would know if and when they had arrived home.  Both women, on the nights that they were…

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Details
AGLC
R v Gum [2007] SASC 311
Case
[2007] SASC 311
Decision Date

CaseChat Overview and Summary

The appellant, David Christopher Gum, was convicted by a jury of two counts of rape. He appealed against his conviction on two grounds. Firstly, he argued that the trial judge should have given a direction to the jury regarding the use of evidence from one count in respect of the other. Secondly, he contended that due to the lack of a conclusive link between the DNA analysis of his reference sample and the profile used for comparison with the samples from the victims, the jury could not be satisfied beyond reasonable doubt that he was the rapist. The trial judge did not direct the jury on the issue of how evidence relating to one count could and could not be used in respect of the other, nor did he give a propensity warning. The court examined the principles relating to propensity evidence and concluded that there was no risk of impermissible reasoning by the jury and thus, a direction was not required to avoid a miscarriage of justice.

The court examined the evidence presented at trial and found that the DNA evidence was strong, with the profiles from both victims being more than one billion times more likely to match the appellant's reference DNA profile if he were the true source of the DNA. The court found that the chain of custody for the DNA evidence was sufficiently established and that there was no sufficient link between the results of the forensic scientist who analysed a buccal sample from the appellant and the ultimate evidence given by the scientist who performed the DNA analysis. The court concluded that neither ground of appeal was made out and dismissed the appeal.

The court dismissed the appeal and affirmed the conviction of the appellant. The court found that the trial judge's directions to the jury were sufficient and that there was no risk of a miscarriage of justice. The court also found that the DNA evidence was strong and that the chain of custody for the evidence was sufficiently established. The appellant's conviction was affirmed and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant raises two grounds. First he submits that a miscarriage of justice resulted from the failure of the learned trial judge to direct the jury as to how evidence relating to one count could and could not be used in respect of the other. Then, he argues that because of the failure to conclusively link the DNA analysis of the reference sample of the appellant with the profile used for comparison with the samples from the “scenes”, the jury could not be satisfied beyond reasonable doubt that the appellant was the rapist. Background The offences occurred in March and June 1991 at Fulham and West Lakes Shore respectively. In neither case did the victims (whom I shall call “A” and “B”) see enough of the intruder to be capable of identifying him. Rather, the descriptions given were very general. There were parallels between them. For instance, A gave evidence that her attacker was “mid 20s”, “quite tall” – over six feet, had short, “darker coloured hair” and was clean shaven, while B described the man who raped her as in his “early 20s”, six feet tall, having short dark hair and clean shaven. On the other hand, A said he had “not a large build – solid” while B said her attacker was “lean, a bit toned”. Although the prosecution was put to proof as to all aspects of the case, defence counsel did not challenge the evidence that each woman was raped. The prosecution called a number of witnesses who were involved in various ways with gathering the DNA evidence. The source of the DNA said to match that of the appellant was – in the case of A – a swab from her groin where the attacker was said to have ejaculated and, in B’s case, a high vaginal swab. The profile developed from the sample in the instance of A was attributable to only one person, being a male. There was correspondence with the appellant’s reference sample at each hypervariable region examined. In the case of B the profile was a mixture. Even though Mr Sobieraj, the forensic scientist who gave evidence of the results, did not have a separate reference sample from B, he was able to distinguish between the profile attributable to the major component of the mixture – being the attacker’s – and the balance. That was because Mr Sobieraj was able to generate the DNA profile of B from her “epithelial cell fraction”. Therefore, notwithstanding that the sample from B contained a mixed profile, the calculation of a “likelihood ratio” by reference to the DNA derived from the appellant was not on that account any different from the calculation for A’s attacker. In two of the hypervariable regions examined there was insufficient DNA to report the result. However this appears, on the evidence, to have made no discernable difference to the likelihood ratio. The result was that the DNA profile from each victim was said to be greater than one billion times more likely to match the reference DNA profile of the appellant if he were the true source of the DNA, as against if the source were an unknown, unrelated man. Chain of evidence

Evidence

Evidence Before The Court

The result was that the DNA profile from each victim was said to be greater than one billion times more likely to match the reference DNA profile of the appellant if he were the true source of the DNA, as against if the source were an unknown, unrelated man. Chain of evidence On the appeal the principal focus of the attack on this evidence concerned the reference sample attributed by Mr Sobieraj to the appellant. It was argued that there was no sufficient link between the results of the forensic scientist, Ms Toop-Mitchell, who analysed a buccal sample from the appellant to extract DNA, and the ultimate evidence given by Mr Sobieraj. Ms Toop-Mitchell did not give evidence at trial but her statement was read to the jury as one which had “been agreed between counsel”. The judge instructed the jury that it could regard the statement as equivalent to oral evidence. The statement set out qualifications and experience of the deponent. It then recorded that Ms Toop-Mitchell had examined and analysed exhibits relating to “David Christopher Gum, defendant”. It referred to a report detailing such examination and analysis and to the Forensic Science Centre (now Forensic Science South Australia (“FSSA”)) case number of 0403012. That report was apparently annexed to the statement and incorporated into it. It too was read to the jury. It purported to be a report “on the examination of items in two matters involving David Christopher Gum, FSSA case number 0403012 …”. The report related that the witness had undertaken DNA “extraction on a reference buccal sample from David Gum which was given the item number “DCG” at FSSA”. It then described two further analytical processes said to have been performed on 19 and 20 July 2004. It recorded that “the results of these examinations/analysis I describe in the report prepared by Thomas Christopher Sobieraj also identified as Forensic Science South Australia case number 0403012 and dated 3 August 2004”. When Mr Sobieraj came to give evidence he produced documents described as “login receipts”. These purported to relate to the receipt at the FSSA of the biological samples taken from each of the victims. Each was identified by a separate FSSA case number. Mr Sobieraj also produced a document headed “Table of DNA Results” for the “FSSA case number 0403012”. That document collected the results of DNA analysis of the reference sample attributed to the appellant and numbered 0403012, together with the “crime scene” samples referring to the victims by name and giving the reference numbers matching those on the login receipts. That document was tendered without there being objection by counsel then acting for Mr Gum. As I understand the first part of this argument it is that because the part of Ms Toop-Mitchell’s report which contained the DNA profile of the appellant was not read in court, there was no sufficient link between her work and Mr Sobieraj’s use of a DNA profile said to relate to the appellant.

Decision

Reasons for decision

DUGGAN J KELLY J (dissent)
Whilst the judge could not have been criticised for giving such a warning, I do not consider that one was necessary in order to avoid a perceptible miscarriage of justice.Conclusion In the end it seems to me that the issues in the trial were stark and in the directions of the judge the jury had sufficient assistance as to how to approach them. Neither ground of appeal is made out. I would dismiss the appeal. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J,

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