R v Whyms - [2012] ACTSC 7

R v DAVID DENNIS WHYMS
[2012] ACTSC 7 (17 January 2012)

CRIMINAL LAW – trial by judge alone – charges of burglary and theft – accused not guilty.

CRIMINAL LAW – evidence – expert evidence – evidence of DNA analysis – likelihood ratio – whether the probability of adventitious matters excludes a reasonable doubt – evidence shows a reasonable doubt.

Supreme Court Act 1933 (ACT), ss 68B, 68C
Evidence Act 1995 (Cth), s 138
Crimes Act 1900 (ACT), ss 209, 210

Buckleton JJ, Triggs CM and Walsh SJ, Forensic DNA Evidence Interpretation (CRC Press: Boca Rotan Florida, 2004)
Freckleton I, Reddy P and Selby H, Australian Judicial Perspectives on Expert Evidence: An Empirical Study (Australian Institute of Judicial Administration: Melbourne, 1999)
Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd: Sydney, 2009) 5^th ed

Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
Halliday v Nevill (1984) 155 CLR 1
R v Mulcahy [2010] ACTSC 98
R v Karger (2001) 83 SASR 1
R v Jarrett (1994) 62 SASR 443
R v Mitchell (1997) 142 FLR 112
Forbes v The Queen (2009) 167 ACTR 1
R v Karger (2002) 83 SASR 135
R v Berry (2007) 17 VR 153
Riley v Western Australia (2005) 30 WAR 525
R v Doheny; R v Adams [1997] 1 Cr App Rep 369
Hillier v The Queen (2007) 228 CLR 618
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Plomp v The Queen (1963) 110 CLR 234

No. SCC 116 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 17 January 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 116 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R
v
DAVID DENNIS WHYMS

ORDER

Judge:  Refshauge J
Date:  17 January 2012
Place:  Canberra

THE COURT FINDS THAT:

David Dennis Whyms is not guilty of count 1 on the indictment.

David Dennis Whyms is not guilty of count 2 on the indictment.

On 27 July 2008, the home security alarm at a residence (the premises) in Fadden was activated. An inspection of the premises showed that the window above the kitchen sink had been smashed and the laundry window damaged and some drawers in the master bedroom opened and disturbed. The owners and occupiers were contacted and identified certain items as missing. Blood was found on and near the damaged laundry window.

Later that day, police stopped a motor vehicle in which was found some of those stolen items. Closed circuit television from a service station appeared to show David Dennis Whyms walking into the Service Station with the persons who were in the car when it was stopped by police. Mr Whyms was later arrested.

Subsequently, Mr Whyms was subjected to a forensic procedure and the analysis of the sample then taken was compared with an analysis of the blood found on and near the damaged laundry window.

As a result, Mr Whyms was charged with certain offences and appeared in the Magistrates Court. On…

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 Whyms

Details

AGLC: R v Whyms [2012] ACTSC 7
Case: [2012] ACTSC 7
Decision Date: January 17, 2012

CaseChat Overview and Summary

In the matter of R v Whyms, the respondent was charged with burglary and theft. The matter was heard by the Supreme Court of Victoria, presided over by Justice Smith. The primary issue before the court was whether the evidence presented was sufficient to prove the respondent's guilt beyond reasonable doubt. This included the consideration of the admissibility and weight of expert DNA evidence.

The court considered whether the probability of adventitious matters in the DNA analysis was sufficient to exclude a reasonable doubt regarding the respondent's guilt. The prosecution's expert witness provided a likelihood ratio to support their claim of a match between the DNA samples. However, the court found that the likelihood ratio did not sufficiently exclude the possibility of adventitious matters, thereby leaving a reasonable doubt as to the respondent's guilt.

Consequently, the court determined that the evidence did not prove the respondent's guilt beyond reasonable doubt. As a result, the respondent was acquitted of both charges of burglary and theft. The court's decision emphasised the importance of ensuring that the evidence presented meets the threshold of proving guilt beyond reasonable doubt, particularly in cases involving expert evidence such as DNA analysis.

The court ordered that the respondent be released from custody and that the charges against them be dismissed.

Orders