R v Smart (Ruling no 3)
[2008] VSC 121
•22 April 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1533 of 2007
| THE QUEEN |
| v |
| KEITH HERBERT SMART |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2008 | |
DATE OF RULING: | 22 April 2008 | |
CASE MAY BE CITED AS: | R v Smart (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 121 | |
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CRIMINAL LAW – Ruling – Admissibility of expert opinion – Relevance – Evidence said to be speculative – Jury’s role to consider.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Galbally & O’Bryan |
HIS HONOUR:
On 19 March 2008, Mr Toohey of counsel for the accused applied that I exclude certain evidence from this trial as appears hereafter. Following the debate I informed him that I would admit the evidence and publish my reasons for so doing subsequently. I now publish my reasons.
Background
Keith Herbert Smart is charged that at Cranbourne North on 14 October 2006 he murdered Katie Lee Tanner. The case against the accused is a circumstantial one. If Ms Tanner was murdered, her body has not been located. At the time of her disappearance Ms Tanner was residing with the accused at 22 Courtenay Avenue, Cranbourne North. She had previously been in a relationship with the son of the accused, David Smart, but that relationship had ended. As I understand the way the evidence is likely to fall, it will be that Ms Tanner was residing with the accused as a matter of convenience rather than as part of some relationship with him.
On 14 October 2006, Ms Tanner had apparently arranged to visit a friend in Frankston for drinks and invited the accused to go with her. In his record of interview the accused described going to Frankston with Ms Tanner, arriving at the house where the function was occurring at about 7.00 pm and staying there until about 10.00 pm. He said that he and Ms Tanner drove back to Cranbourne North from Frankston and arrived home at about 10.30 pm. After arriving home, the accused gave the following account of what happened:
She was sittin’ on the couch playin’ with her phone. We were havin’ a talk. I said, “alright, darlin’, I’m going to bed”. She said “Okay, see you in the mornin’.” And I went to bed, turned me tellie on. I reckon about 20 minutes later I was snoozin’.
Ms Tanner has not been seen since.
In opening, the learned Crown Prosecutor has told the jury that it is the prosecution allegation that in the late evening of 14 October 2006 or the early hours of the following day, the accused murdered Ms Tanner using a rubber mallet “at some stage” in the killing and disposed of her body.[1] The rubber mallet was located some weeks later in a “wheelie” bin at the premises of the accused, and evidence will be led that DNA attributable to the accused was on the mallet handle, and blood and DNA attributable to Ms Tanner was on the mallet head.
[1]Transcript of Proceedings, R v Smart (Supreme Court of Victoria, Lasry J, 4 March 2008) at 165.
DNA Evidence
The property at Cranbourne North was examined twice by police. On the second occasion the premises were also inspected by a scientific expert, Ms Debra Ryan. Ms Ryan is a forensic scientist employed by the Victoria Police Forensic Services Centre. It is in relation to her evidence concerning DNA on particular items found inside and outside the house that issues of admissibility arise.
Ms Ryan had not given evidence at the committal proceedings but has done so by way of Basha enquiry, following which an application was first made to exclude parts of her evidence. Having ruled on that application,[2] another application has now been made to exclude additional parts of her evidence, which the defence did not seek to exclude in its initial application.
[2]R v Smart (Ruling No. 1) [2008] VSC 79.
Ms Ryan examined the premises on 31 October 2006 and in particular she did so for the purpose of identifying trace amounts of blood. The examination therefore occurred about two weeks after the time when the Crown alleges Ms Tanner was murdered by the accused. On behalf of the accused, Mr Toohey now seeks to exclude those portions of Ms Ryan’s evidence which concern findings of DNA which was extracted from the items or areas where Ms Tanner’s blood was found and in respect of which the accused cannot be excluded as a contributor.
When the house was examined on 31 October 2006, the blood of Ms Tanner was identified in a couple of areas in the accused’s house, and on certain items found inside or outside that house. In the immediate vicinity of that blood, samples of DNA were extracted, which the Crown will ask the jury to conclude is the accused’s. Taking these facts, along with all the other circumstances in this case, the jury will be asked to come to a conclusion of guilt.
Those particular items and areas from which samples of DNA were extracted are as follows:
· Swab 9-1, which was taken from an area of carpet in the lounge room;
· Item 5, which was an area of carpet taken from the main bedroom;
· Item 11, which was the mallet; and
· Item 24, which includes a Centrelink card.
A mixture of DNA profiles was extracted from the samples taken from the two areas of carpet where Ms Tanner’s blood was located. The accused could not be excluded as a contributor to each of those mixtures. As to Swab 9‑1, the evidence of Ms Ryan on the voir dire was that the mixture of DNA profiles came from the sample taken from the blood stain she examined.[3] She then gave evidence that she would expect a reasonable amount of DNA to have been deposited by the second contributor (i.e. the accused) in order for it to be detected in a mixture such as the one she was examining.[4] Therefore, simply walking over the area a couple of times in bare feet, for example, would not be expected to create that sort of mixture. However, she accepted it was possible, given that the accused lived in that house for some years, that the source for the DNA might have been present before any blood spot ever got there.
[3]Transcript of Proceedings, R v Smart (Supreme Court of Victoria, Lasry J, 4 March 2008) at 73.
[4]Ibid at 74.
As to item 5, this blood stain was located on the carpet in the main bedroom where Ms Tanner slept in the accused’s house. Ms Ryan’s evidence on the voir dire was that the sample came from what was confirmed to be blood. There were three contributors to the DNA mixture which was extracted, and neither Ms Tanner nor the accused could be excluded as contributors.
In addition, the accused’s DNA was located on the mallet handle (item 11) which the prosecution alleges is the murder weapon. Mr Toohey does not object to the evidence relating to blood of Ms Tanner on the head of the mallet, but objects to the evidence about the handle. There was a major and minor contributor to the DNA detected on the handle and the accused appears to be the major contributor.
So far as the Centrelink card is concerned (item 24), that was an item belonging to Ms Tanner which had been cut into pieces and found by the Homicide Squad during a search at the premises of the accused on 31 October 2006, together with several other items which had been similarly treated. These items had been deposited in a plastic rubbish bag into the outside rubbish bin on the accused’s premises.
Ms Cannon pointed out during submissions that the DNA evidence in relation to the relevant areas and items includes the analysis of individuals who are excluded as contributors to the DNA. That may have relevance because there is a prospect that someone other than the accused may have been involved in causing Ms Tanner’s death.
Mr Toohey also objects to the introduction of a doona as evidence. The particular doona was located in the spare room of the house and had droplets of blood on it which have been identified through DNA matching as being the blood of Ms Tanner.
Submissions
Mr Toohey submits that there is no logical basis for the jury to draw any inference from this evidence, other than that the accused lived at the premises in Cranbourne North. Further, he argues that it can only be speculation and not a proper inference for the jury to come to the conclusion that the DNA (to which the accused cannot be excluded as a contributor) got onto the areas or items at the same time as when the blood of Ms Tanner was deposited. There is no scientific or logical basis, according to Mr Toohey, for such an inference. In relation to the doona, Mr Toohey submits there is no proof that it was ever used by Ms Tanner at that house.
It is correct that Ms Ryan gave evidence on voir dire that she could not say when the biological material yielding DNA got on the particular items or areas, in relation to the time when Ms Tanner’s blood was deposited. It is therefore open to Mr Toohey to stress to the jury that Ms Ryan is not able to make a finding as to when the DNA got on the relevant items or areas. But this is an issue for the jury; it is not a basis for withholding this evidence from the jury.
Similarly, it is open to Mr Toohey to argue before the jury that the presence of the accused’s DNA does not prove anything, because it was located in the accused’s house, and it would be surprising if the accused’s DNA was not found at various locations in the house.
Ms Cannon submits that this evidence is just one of the facts or circumstances the jury can take into account. She also submits that where there is a mixture of DNA that is obtained from blood and one of the DNA profiles is from the person the prosecution say is the deceased, then the jury are entitled to know who else matches it and who can be excluded.
In an earlier ruling in this trial, I said:
In my opinion the evidence relating to confirmed blood is admissible. The Crown case is that Ms Tanner was murdered by the accused at the premises. That case relies on, inter alia, the following:
· Ms Tanner has disappeared despite being the mother of two children;
· The accused had been into the room in which Ms Tanner slept on the day after she disappeared and the bed had been changed and made;
· A rubber mallet was found when police searched the premises which carried the blood of Ms Tanner on the head and the DNA of the accused on the handle;
· Items belonging to Ms Tanner had been destroyed;
· A car belonging to the estranged wife of the accused was borrowed by him on the day after Ms Tanner disappeared and the Crown will argue that various things that were done with that car indicate that it was used to dispose of Ms Tanner’s body.
The fact that, in addition to these and other circumstances which I have not referred to, there is blood which can be identified as Ms Tanner’s blood both in the lounge room and the bedroom she usually occupied, coupled with what may be argued to be attempts by the accused to conceal the blood and clean away the evidence is, in my opinion, relevant evidence for the jury to consider. These are facts from which they may or may not be prepared to draw inferences leading to guilt. It is, of course, a matter for them, and I will direct them on the manner in which they may use such evidence in a circumstantial case as this is.[5]
[5]R v Smart (Ruling No. 1) [2008] VSC 79 at [17]-[18].
In my opinion similar logic applies to the evidence now sought to be excluded by Mr Toohey concerning the accused’s DNA. The jury will be directed by me not to speculate and that if there are gaps or flaws in the evidence then speculation or guess work must not be used to meet them. As I observed in argument,[6] the test of admissibility is not whether the impugned evidence can prove a particular proposition beyond reasonable doubt but rather whether it is relevant and probative and, if it is, then it is a matter for the jury.
[6]Transcript of Proceedings, R v Smart (Supreme Court of Victoria, Lasry J, 19 March 2008) at 847.
In my opinion the evidence of Ms Ryan is relevant and probative on the issue as to whether there was a physical confrontation between the accused and Ms Tanner in the home of the accused as the Crown alleges. It does seem to me, as the Crown submits, that if someone other than the accused had used that mallet to kill Ms Tanner, evidence of biological material leading to a DNA profile (even if unidentified) might have been expected to be located. Further, the fact of the DNA of the accused on the handle is plainly relevant and admissible. With respect to the doona, the Crown case is that Ms Tanner was killed by the accused at the house and it inevitably follows that they contend that blood was spilt in the course of that attack which they say was carried out by the accused. In my view the evidence surrounding the doona is similarly relevant.
The manner in which the jury use Ms Ryan’s evidence in combination with other facts they find proved is a matter for them. This is evidence of basic facts from which the jury will be asked to infer a further fact or facts. In my view this is a matter of argument about the weight that can be attached to the particular evidence, rather than a matter of admissibility and on that basis I have admitted the evidence.
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