R v Lomas

[2010] NSWDC 112

CITATION:	R v Lomas [2010] NSWDC 112
HEARING DATE(S):	13/04/10, 14/04/10, 15/04/10, 16/04/10, 19/04/10, 20/04/10, 21/04/10
JUDGMENT DATE:	20 April 2010
JURISDICTION:	CRIMINAL
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I must leave the matter for the jury. I must give them appropriate directions.
CATCHWORDS:	CRIMINAL LAW - evidence - identification evidence - DNA - whether direction to jury to acquit appropriate-
CASES CITED:	Forbes v The Queen [2010] HCATrans 45 (12 March 2010)
PARTIES:	The Crown Daniel Anath LOMAS (Accused)
FILE NUMBER(S):	2009/110415
COUNSEL:	Mr H Baker as Crown Prosecutor Mr I Todd for the Accused
SOLICITORS:	Director for Public Prosecutions Legal Aid Commission

JUDGMENT

1. HIS HONOUR: At the conclusion of the Crown case Mr Ian Todd, counsel for the accused submitted that I should direct the jury to acquit. I can do this if taking the Crown case at its highest there is no evidence on which the jury could convict. I cannot do this if I take the view that some of the evidence is not entirely satisfactory or if I personally have doubts about some of the evidence or if I think the case is a rather weak Crown case. In any of those circumstances I am obliged to leave the case for the consideration of the jury.

2. The accused is charged with robbery in company; it being alleged that on 28 July 2007 in company with another person whose identity is unknown he robbed the manager of a Travelex store at the Burwood Westfield Shopping Centre. The evidence in the trial comprises evidence from the witnesses such as the manager of the store, Mrs Manalansan, security guards, someone from a nearby paper shop and CCTV footage. As well as that the Crown case is that the accused is the robber or one of the robbers because one of the robbers when pursued by security guards was seen to drop a scarf in a driveway at the shopping centre used entirely by motor vehicles.

3. The scarf was seen to be dropped near a screwdriver which was also dropped. There was evidence from witnesses that one of the robbers was wearing a scarf and that one of the robbers was carrying a screwdriver and the other perhaps a crowbar or some other implement. In the driveway concerned a screwdriver was located and a scarf. The scarf was submitted for testing for DNA twice as I understand it and a match was established with the DNA of the accused.

4. Yesterday Mr Clinton Cochrane who is a forensic biologist gave a detailed explanation of the processes of testing the DNA, what was tested and what were the results. DNA was located on two sides of a scarf. It was only on a portion of the scarf, not the entire scarf. I would have thought that is something that could reasonably be expected. The scarf was worn around the mouth. Mr Cochrane's evidence was that a fairly significant quantity of DNA was found on both sides of this scarf.

5. The only DNA found was that of the accused; there was no other DNA on the scarf. The quantity of DNA was such that in his opinion its probable sources were saliva, blood, semen or mucus from the mouth. In the circumstances there was no blood found as such but it could have been any of the other three. The scarf was shown in the DNA footage to be worn around the lower face and neck of one of the robbers. Possible source of the DNA would have been nasal secretions as Mr Cochrane said or possibly wet exhalations of the breath. Less possibly the quantity of DNA could have been caused by the shedding of skin.

6. When Mr Todd cross-examined Mr Cochrane he acknowledged that DNA could get on to an item of clothing or anything from the actions of a person other than the owner of the item of clothing or relevant object. If the person rubbed his eyes and then touched something, he would transfer DNA. If he put his finger around his mouth and touched something or rubbed his nose and touched something, he could quite likely transfer DNA.

7. Mr Todd has pointed to the fact that there is nothing to link the accused to this crime other than the DNA. I was referred to a case that is yet to be heard to finality in the High Court, called Forbes v The Queen. The argument on special leave in that matter was heard on 12 March 2010. The hearing of the application by the Full Court of the High Court will be some time in May. In that case a man was charged with rape in Canberra. There was nothing to show he had any connection with the victim. He produced evidence of an alibi and he produced evidence to show that the victim wrongly identified him.

8. That evidence of alibi and wrongful identification would have been very compelling evidence, one would have thought. However, there was also DNA evidence of semen, which was his. He was convicted. The Full Court of the Court of Appeal of the Australian Capital Territory Supreme Court rejected the appeal. The High Court has been asked to give a ruling in the absence of any evidence other than DNA there should be a verdict of acquittal at the end of the trial. If the High Court gives such a ruling it will of course affect many trials in Australia.

9. In this case there is slightly more evidence connecting the accused to the crimes than there was in Forbes, in that he admitted to the police he had been to the Westfield shopping centre and there was evidence that he had withdrawn money some short time before 28 July 2007 from an automatic teller machine in the Westfield shopping centre. The fact that he went to the Westfield shopping centre is hardly surprising. He lived at Stanmore and it is the largest shopping centre close to the inner west. In itself it does not show much more than the fact that he had been there. He did not admit to ever going to the Travelex office.

10. The Travelex office is adjacent to a large Woolworths department store, supermarket and a newsagency. Many people could be expected into go into newsagencies and supermarkets. There are many other stores at the Westfield shopping complex and as the evidence shows, there is a very large car park going over several levels. There are travelators going into the car park from the various levels of the store and there are driveways, one of which goes down to the street called Wilga Street. That was the street down which one of the robbers ran, namely the robber who had the scarf around his neck.

11. It is quite possible both of them ran down there. Neither of them were caught. The accused is a man who may fall within the description of being an Islander. It is hard for me to be sure of that. He has a darkish skin, he is relatively strongly built, although he is not a bulky man or a very tall man. He is just strongly built for his height. He does not appear to be particularly tall. He has short black hair. In a very broad sense, the description given by various people of the robbers as being Islanders could fit him, it's possible. The robbers or at least the one who was wearing the scarf was wearing some sort of darkish trousers.

12. The police ultimately raided the premises lived in by the accused and they retrieved what they said were cargo pants. These were items of clothing that could be worn by anyone. There was nothing unique about them. There were no particular markings on them that identified them as being different to anybody else's clothing. But clothing he had in his possession and clothing of a type similar to that worn by one of the robbers. Without the DNA evidence he could not be convicted. None of the other evidence could possibly implicate him.

13. However, the other evidence does show that he knew where the shopping centre was, he had been to the shopping centre and he had something of the physical appearance that persons described as being the robbers. The most significant part of the Crown case in my opinion is that his DNA was found on both sides of this scarf and no other person's was found on the scarf. The possibility that he could have transferred his DNA to somebody else's scarf is of course always there. But this DNA was found in a portion of the scarf, in about the middle of it, and it is difficult for me to see how his DNA could be transferred to that scarf, a scarf worn by or owned by some other person and yet that other person's DNA would not be on the scarf at all.

14. However, it is not for me to say whether I am persuaded or unpersuaded about the importance of that matter. The point is, in my opinion, that there is evidence which taken at its highest could show the jury accepted that the accused was the one wearing the scarf. It was his DNA and no other person's was found upon it. That does not prevent argument to the jury to show that they should not take that into account or they should reject that argument. It is quite possible that they would. During the course of his evidence Mr Cochrane said that statistically fewer than 1:10 billion people could be expected to have the same DNA profile.

15. That meant, in his opinion, that they would be likely to find a similar profile or an identical profile only after ten billion tests. Ten billion is, in his opinion, twice the population of the world. I am not sure whether it is twice the population of the world but certainly it is larger than the population of the world. I think between China and India there are something three billion people. Certainly a very significant number. I acknowledge the risk that a jury listening to this evidence will come to a conclusion that with that sort of figure he must have been the robber, it couldn't be anybody else.

16. It is of course important that the other possibilities be put to the jury and that they consider them. They have to be told that it is evidence that could establish his guilt. It is not evidence that does necessarily establish his guilt. It does not have the certainty of fingerprint evidence and they would have to be told that. It's a matter for them to evaluate the scientific evidence but there is no contrary scientific evidence. This is not a case, as there have been on occasions, where different scientists give different evidence. There is not attack as such on the profiler testing process, nor is there any attack as such on the statistic that has been obtained.

17. In the result, in my opinion, I must leave the matter for the jury. I must give them appropriate directions of course. They must be given to understand that it is evidence on which they could act. They do not necessarily have to find the accused guilty. They also have to be told that without this evidence he could not be found guilty. None of the other evidence would be sufficient on its own collectively or anything else to convict the accused.

18. If they have any doubts having considered the possibilities of all the other circumstances in which DNA could be placed on a scarf, if they have doubts about whether they are satisfied that this indeed was the accused's scarf they should acquit him. They will have to be told that very clearly. But I do propose to leave the matter to the jury.

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