R v McGeady - [2020] QCA 267

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGeady [2020] QCA 267

PARTIES:

R
v
McGEADY, Robert Daniel Patrick
(appellant)

FILE NO/S:

CA No 100 of 2020
DC No 2439 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 April 2020 (Rafter SC DCJ) [2020] QDC 65

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2020

JUDGES:

Philippides and Mullins JJA and Williams J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by the trial judge sitting without a jury of one count of armed robbery in company – where the only evidence implicating the appellant was DNA found on the inside of a fingertip fragment torn from a latex glove – where the trial judge found that the glove belonged to one of the offenders – where the DNA evidence was that the DNA profile obtained from the swab was of a single contributor that was 100 billion times more likely to have occurred, if the DNA had originated from the appellant rather than someone else – where it was a possible, but not determinable, that there was the presence of low-level DNA from another contributor – where the trial judge excluded as a reasonable hypothesis the possibility of secondary or tertiary transfer of the defendant’s DNA to the glove – whether the verdict was unreasonable

Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28, considered
R v Richardson[2010] QCA 216, cited

COUNSEL:

A M Hoare for the appellant (pro bono)
S J Bain for the respondent

SOLICITORS:

Kilroy & Callaghan Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES JA: I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
MULLINS JA: Mr McGeady was convicted after trial before the learned trial judge sitting without a jury of one count of armed robbery in company: R v McGeady [2020] QDC 65 (the reasons).
The facts of the offending
On 8 November 2017 a robbery was committed at the Mansfield Tavern at around 12.50 am by two persons who covered their faces and wore gloves. The sum of $77,937.35 was stolen. A fingertip fragment of a latex glove that appeared to be torn off the glove was located at the scene of the robbery. The gloves worn by the offenders appeared to be consistent with the fragment. The trial judge was satisfied beyond reasonable doubt that the fragment of the latex glove was left by one of the offenders and that finding is not challenged on this appeal. To prove the identity of Mr McGeady as one of the offenders, the prosecution’s case at trial relied upon DNA evidence located on the inside surface of the fingertip fragment of the latex glove.
Admissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McGeady

Details

AGLC: R v McGeady [2020] QCA 267
Case: [2020] QCA 267
Decision Date: 4 December 2020

CaseChat Overview and Summary

The appellant, Mr McGeady, was found guilty by the trial judge sitting without a jury of one count of armed robbery in company. The conviction was based on DNA evidence found on the inside of a fingertip fragment torn from a latex glove. The trial judge concluded that the glove belonged to one of the offenders and excluded the possibility of secondary or tertiary transfer of the defendant’s DNA to the glove. Mr McGeady appealed the verdict, arguing it was unreasonable or insupportable having regard to the evidence.

The primary issue before the court was whether the DNA evidence was sufficient, without any other evidence, to prove beyond reasonable doubt that Mr McGeady was one of the robbers. The court examined the statistical analysis provided by Ms Taylor, who testified that the DNA profile obtained from the swab was greater than 100 billion times more likely to have originated from Mr McGeady rather than someone else. Ms Taylor also noted that there was possible low-level DNA present, but it was below the reportable threshold, and it was not determinable whether it was DNA or background noise. Ms Taylor further explained that the presence of DNA on gloves could be influenced by various factors such as the nature of the surface, the conditions under which the gloves are worn, and whether the hands or gloves were dirty.

The court found that the trial judge had appropriately evaluated the DNA evidence and considered the possibility of secondary or tertiary transfer. The court held that the DNA evidence, when considered with the totality of the evidence, was sufficient to support the trial judge’s conclusion that Mr McGeady was one of the offenders. The court dismissed the appeal and upheld the conviction.

ORDERS:
Appeal dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ground of appeal that the verdict is unreasonable or cannot be supported having regard to the whole of the evidence will be resolved by consideration of one issue: whether the DNA evidence was sufficient without any other evidence to prove beyond reasonable doubt that Mr McGeady was one of the robbers.The DNA evidence Ms Taylor’s evidence at the trial was as follows. A DNA profile was obtained from the swab that indicated the presence of a single contributor. The DNA profile matched the reference DNA profile of Mr McGeady. Ms Taylor explained that, based on statistical analysis, it is estimated that the DNA profile obtained is greater than 100 billion times more likely to have occurred, if the DNA had originated from Mr McGeady, rather than if the DNA had originated from someone other than him. Ms Taylor disclosed that the DNA profile (from the swab) indicated the presence of possible low-level DNA which was below the reportable threshold for DNA peaks. Ms Taylor could say that she was not sure whether it was DNA or if it was just “background” or “sort of background noise or from machinery” and it did not interfere with the interpretation that was made of the DNA profile. In response to the hypothesis of a person wearing latex gloves for 15 or 20 minutes, whether Ms Taylor would expect there to be a high concentration of DNA within the gloves, Ms Taylor said “not necessarily”, because there were many factors that affected that, including whether the person is a particularly “good shedder” of DNA, the conditions under which the gloves are being worn, whether the hands were dirty and whether the surface of the glove was dirty. Ms Taylor’s laboratory was unable to do testing that ages DNA. In cross-examination, Ms Taylor gave the following evidence. The optimum amount of DNA that the laboratory requires for the amplification process is approximately 0.5 nanograms of DNA. The capability of shedding DNA is different between different people and, with respect to leaving DNA on the surface, there are a number of factors that are relevant, including the nature of the surface, how dirty or clean it is and the environmental factors. DNA can last indefinitely stored in the right conditions, but it is destroyed by such things as heat, UV light, moisture and certain dyes in fabrics. There are a number of factors that can affect the touch and transfer of DNA between people, between surfaces and so on. It is possible for DNA to be transferred from one person to another and then to a third person. Direct, primary, secondary, tertiary and possibly even beyond tertiary transfer of DNA is possible. In this particular instance, there was indication of possible low-level DNA, but it was below the laboratory’s reportable threshold and so it could not be said that it was DNA and it could not be said that it was not DNA. It indicates there is possibly low-level DNA present, but that cannot be determined. In re-examination on this topic, Ms Taylor explained:“It’s possible that it’s not DNA. We – we cannot say. So that’s why we just give an indication that it could possibly be … additional low-level DNA, but then again, it may not be.”The reasons

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McGeady [2020] QCA 267
PARTIES:	R v McGEADY, Robert Daniel Patrick (appellant)
FILE NO/S:	CA No 100 of 2020 DC No 2439 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 24 April 2020 (Rafter SC DCJ) [2020] QDC 65
DELIVERED ON:	4 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2020
JUDGES:	Philippides and Mullins JJA and Williams J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by the trial judge sitting without a jury of one count of armed robbery in company – where the only evidence implicating the appellant was DNA found on the inside of a fingertip fragment torn from a latex glove – where the trial judge found that the glove belonged to one of the offenders – where the DNA evidence was that the DNA profile obtained from the swab was of a single contributor that was 100 billion times more likely to have occurred, if the DNA had originated from the appellant rather than someone else – where it was a possible, but not determinable, that there was the presence of low-level DNA from another contributor – where the trial judge excluded as a reasonable hypothesis the possibility of secondary or tertiary transfer of the defendant’s DNA to the glove – whether the verdict was unreasonable Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28, considered R v Richardson[2010] QCA 216, cited
COUNSEL:	A M Hoare for the appellant (pro bono) S J Bain for the respondent
SOLICITORS:	Kilroy & Callaghan Lawyers for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent