R v Marticanaj

Case [2010] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MARTICANAJ

[2010] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)

23 December 2010

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE

Appeal against conviction and sentence - defendant and appellant found guilty by jury verdict of two counts of aggravated threatening life, the offences of aggravated cause harm and possessing a firearm without a licence - issue at trial was the identity of the offender - prosecution relied on circumstantial evidence, including DNA evidence, to establish that it was the defendant who committed the offences - whether risk that the DNA evidence was impermissibly relied upon by the jury - whether DNA evidence impermissibly dealt with in prosecution address - whether Judge erred in treatment and explanation of the DNA evidence in summing up - whether a reasonable hypothesis consistent with innocence not excluded by prosecution - whether defendant denied a fair trial.

Held: Appeal against conviction dismissed - despite imperfections and irregularities in the manner in which the prosecution and the Judge described and directed about the DNA evidence, these were not of such a nature as to give rise to any risk of a miscarriage of justice - jury would have been left in no doubt that the DNA evidence was not proof of guilty, but merely an item of circumstantial evidence - no reasonable hypothesis consistent with innocence open - evidence linking the defendant with the offences was overwhelming - verdicts not unsafe or satisfactory - open to jury to be satisfied beyond reasonable doubt that defendant guilty of the offences charged.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - defendant sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment for all offending of seven years and six months - a non-parole period of five years was fixed - whether the head sentence and non-parole period manifestly excessive.

Held: Appeal against sentence dismissed - sentence imposed not manifestly excessive - sentence within the discretion of the Judge - the offending was very serious - the sentence was proportionate to the offending.

Criminal Law Consolidation Act 1935 (SA) s 19, s 24 and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(1b), s 11(1)(a)(iv) and s 18A, referred to.
R v Karger (2002) 83 SASR 135; R v Nguyen [2010] HCA 38; Skinner v The King (1913) 16 CLR 336; R v Becker (2005) 91 SASR 498; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Horstmann [2010] SASC 103; R v Carpentieri (2001) 81…

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R v Marticanaj [2010] SASCFC 82
Case
[2010] SASCFC 82
Decision Date

CaseChat Overview and Summary

The appellant, Nikolin Marticanaj, appealed against his conviction for two counts of aggravated threatening life, aggravated causing harm, and possessing a firearm without a licence, as well as his sentence. The central dispute at trial was the identity of the offender, with the prosecution relying on circumstantial evidence, including DNA analysis, to link the appellant to the offences. The defence contended that a reasonable hypothesis consistent with innocence, namely that the offender was the appellant's father-in-law, had not been excluded.

The legal issues before the appellate court included whether the jury had impermissibly relied on the DNA evidence, whether the prosecution's address and the judge's summing up concerning the DNA evidence were flawed, and whether these alleged errors, along with the failure to exclude a reasonable hypothesis of innocence, resulted in a denial of a fair trial. Additionally, the court considered whether the imposed sentence of seven years and six months imprisonment with a non-parole period of five years was manifestly excessive.

The court dismissed the appeal against conviction, finding that despite imperfections in how the DNA evidence was presented by both the prosecution and the judge, these did not create a risk of a miscarriage of justice. The jury would have understood that the DNA evidence was circumstantial and not conclusive proof of guilt. The court determined that the evidence linking the appellant to the offences was overwhelming, and no reasonable hypothesis consistent with innocence remained open. Consequently, the verdicts were deemed safe and satisfactory, and it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. The appeal against sentence was also dismissed, with the court holding that the sentence was proportionate to the seriousness of the offending and within the judge's discretion.

Orders

Orders of the court

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Background

Background to the litigation

The defendant and appellant, Nikolin Marticanaj, was found guilty by jury verdict of two counts of aggravated threatening life. The offences were aggravated through the use of a firearm. The defendant was also found guilty of the offences of aggravated cause harm and possessing a firearm without a licence. The Facts The offending related to an incident that occurred at about 9.20pm on Thursday 17 April 2008. The victims were a driver, B, and his passenger, A. They were travelling east on Stanley Street, Woodville. B swerved his vehicle to avoid a white Toyota Camry reversing from the driveway at number 17 Stanley Street. B continued until he stopped nearby on Harvey Street to allow his passenger, A, to leave the vehicle to go to his parents’ home. A left the vehicle and was saying goodbye when a white Toyota Camry pulled up beside them. The prosecution case was that the white Toyota Camry that pulled up on Harvey Street was the same vehicle that B had almost collided with shortly before. It was the prosecution case that the defendant was the driver of the white Toyota Camry. The defendant left the white Toyota Camry and threatened the victims with a loaded Dan Wesson .357 Magnum double action revolver by pointing the revolver at each of them. A ducked down behind the car and then ran to his parent’s home. The defendant approached B, who was still in the driver’s seat, pressing the revolver hard against his head so that contact was made between the barrel and B’s forehead. The defendant grabbed B’s shirt, pulling him from the vehicle and towards the defendant’s vehicle saying “you come with me”. At the time of the offending the revolver was loaded with bullets, including one in the chamber. B thought he was going to die. He lashed out and kicked and punched the defendant. In the ensuing struggle the defendant struck B to the head and nose with the revolver, fracturing his nose. As the defendant struck B the second time the revolver dropped to the ground. B picked up the revolver and the defendant ran away, leaving the white Toyota Camry behind. B, in a state of confusion and terror, took the revolver with him and drove away in his vehicle. Shortly thereafter he telephoned the police. While driving in the area he saw the defendant return to the white Toyota Camry and drive away. The police advised him not to follow the vehicle and to instead return home. He did so. The police later came to his home and took possession of the revolver. The alleged conduct of the defendant during this incident gave rise to the two counts of aggravated threatening life. The charge of aggravated causing harm related to the assault on B. The charge of possessing a firearm without a licence related to the revolver used in the offending.Appeal Against Conviction The issue in the trial was the identity of the offender. There was no challenge to the accounts given by the two victims. Neither victim was able to identify the defendant as the offender. It was not in dispute that all the crimes had been committed. The prosecution relied on circumstantial evidence, including DNA evidence, to establish that it was the defendant who had committed the crimes.

Evidence

Evidence Before The Court

It was the defence case that at the very least a reasonable doubt arose as to whether the defendant was the offender. It was contended that the prosecution had not excluded a reasonable hypothesis consistent with innocence – namely that the offender was the defendant’s father-in-law. The defendant did not give or call evidence at the trial. The DNA Evidence In opening, the prosecutor addressed the DNA evidence proposed to be led. As to the DNA on the mobile telephone the prosecutor said, “They also subject the phone to DNA analysis and they find DNA evidence the prosecution says links the phone to the accused man”. As to the clothing of the defendant the prosecutor when opening said, “there’s a blood speck which is found on his jumper, on his left cuff, and also another speck which is found on his pants. The blood specks contain the DNA of the victim in this case…”. Following the prosecution opening, defence counsel made a short statement to the jury. In the course of this statement the issue before the jury was described as being one of identification. No reference was made at all to DNA evidence. A forensic scientist was called by the prosecution. She was an employee of the Forensic Science Centre of South Australia. She held a Bachelor Degree of Science and a graduate Diploma in Genetic counselling. She had worked for 15 years in the genetics department of a public hospital where her duties included DNA analysis. She had been working for three years at the Forensic Science Centre undertaking DNA interpretation. There was no challenge by the defence to her qualifications and it was accepted that she had the necessary expertise to assist the Court with expert testimony on the topic of DNA. The forensic scientist explained DNA to the jury including the process of obtaining DNA for the purposes of analysis. She recounted how she had received material for analysis and had assumed the integrity of the process by which that material had reached the Forensic Science Centre. The forensic scientist gave evidence with respect to the DNA analysis concerning the mobile telephone. She explained that the DNA profile taken from the mobile telephone was a mixture originally from at least two people. She described that DNA sample as having a major and a minor component. She expressed the following opinion:That the major component of the DNA profile obtained from 445/23, the swab from the phone, matches the referenced DNA profile of the defendant, Marticanaj. And, again, there were two alternate hypothesis considered in the evidence: that Marticanaj is the major source of the DNA, or the major source of the DNA is an unknown unrelated who by chance has the same DNA as Marticanaj. The major component of the DNA profile obtained from the swab of the mobile phone is approximately 24 million times more likely to match the DNA profile of Marticanaj if he is the major source of the DNA rather than an unknown, unrelated male. In other words, the chance of finding another male unrelated to Marticanaj with the same DNA profile is expected to be approximately one in 24 million.Next, the forensic scientist addressed the DNA on the left cuff of the defendant’s jumper and expressed the following opinion:The findings were that it was a mixed DNA profile with at least two contributors. The major component of that mixed DNA profile matched [B]. And the likelihood ratio for that - sorry, excuse me - and that the two alternative possibilities were as I stated before, and that the DNA profile was greater than a billion times more likely to match the DNA profile of [B] if he is the source of the DNA rather than an unknown, unrelated male.The forensic scientist gave evidence with respect to the bloodlike stain on the defendant’s trousers and expressed the following opinion:That a complete DNA profile matching the profile of [B] was obtained and the profile was greater than a billion times more likely to match the DNA profile of [B] if he was the source rather than an unknown, unrelated male.In cross-examination there was no challenge to any of the above opinion evidence.

Decision

Reasons for decision

GRAY J WHITE J (dissent)
The sentence is proportionate to the offending. The Judge appropriately considered the circumstances of the offending as balanced against the personal circumstances of the defendant. The sentence imposed was not manifestly excessive.Conclusion I would dismiss the appeals against conviction and sentence. In my opinion, the appeal against the convictions should be dismissed. I agree generally with the reasons of Gray J and of Kourakis J. In particular I am satisfied that, in the circumstances of this case, the Judge’s directions concerning the DNA evidence did not give rise to a miscarriage of justice. I do have some reservations about the appropriateness of comparing the likelihood ratio of the competing probabilities concerning DNA with the chances of finding another person within Australia, or indeed of any other country, with a matching profile. However, it is not necessary for the disposition of this appeal for those reservations to be discussed. I also consider that the appeal against sentence should be dismissed, for the reasons given by Kourakis J.KOURAKIS J:Appeal against conviction The appellant was convicted on two counts of aggravated threatening life, one count of aggravated causing harm and one count of possessing a firearm without a licence, on 1 July 2010, after a trial by jury. The prosecution of the appellant arose out of a bizarre but nonetheless frightening incident which occurred on Harvey Street in Woodville just after 9:00 pm at night. The occupants of a car were threatened and assaulted by an offender armed with a pistol in apparent retaliation over a minor traffic incident. The case against the appellant was largely circumstantial. One strand of that case was the matching of DNA profiles taken from blood like stains on the appellant’s clothes with the DNA profile of a victim of the offending. Another was the matching of the DNA profile taken from a swab of a mobile phone found on the road at the scene of the offending with the DNA profile of the appellant. The appellant complains that the Judge’s summing up of the evidence given by a forensic scientist of the improbability of the profiles taken from the items of property matching a person other than the victim and the appellant respectively was factually inaccurate. I accept that contention but I am satisfied that the error has not resulted in a miscarriage of justice. In particular, the improbabilities that the profiles would match a person or persons unrelated to the offender, and the victim, was so great that the jury could not have been misled about the probative value of that evidence by the Judge’s direction. Moreover, no doubt influenced by that improbability, the appellant’s counsel made a strategic decision to attempt to explain the DNA analysis results by suggesting that there may have been cross contaminations of the relevant items. The appellant’s counsel emphasised the paucity of evidence of the way in which the items of real evidence collected by the police had been managed. He argued that the appellant’s clothing may have been contaminated by other property containing the victim’s blood and that, conversely, the mobile phone may have been contaminated by contact with property taken from the appellant. The misdirection did not affect that central issue on which the charges were contested. In the context of that forensic contest the inaccurate summary of the forensic scientist’s opinion has not caused a miscarriage of justice.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

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