Thomason v The State of Western Australia
[2007] WASCA 153
•19 JULY 2007
THOMASON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 153
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 153 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:46/2005 | 18 APRIL 2007 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 19/07/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN ROBERT THOMASON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against conviction DNA evidence Whether should have been excluded in exercise of discretion Turns on own facts |
Legislation: | Nil |
Case References: | Vella v The State of Western Australia [2007] WASCA 59 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THOMASON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 153 CORAM : WHEELER JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HEENAN J
File No : INS 171 of 2004
Catchwords:
Criminal law and procedure - Appeal against conviction - DNA evidence - Whether should have been excluded in exercise of discretion - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P J Mugliston
Respondent : Mr D Dempster
Solicitors:
Appellant : Colebatch Barristers and Solicitors
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Vella v The State of Western Australia [2007] WASCA 59
(Page 3)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
2 McLURE JA: The appellant appeals against his conviction after trial on one count of attempted murder. The State case was that on the night of 29 October 2003 the appellant went to the house where the complainant, Leon Dutka, was visiting. After the power to the house failed, the complainant went outside to the fuse box to investigate. Whilst outside, the complainant was attacked and very seriously injured. There were no witnesses to the attack and the complainant had no memory of the event.
3 The State relied, among other things, on forensic DNA evidence from Ms A Furmedge, a senior forensic scientist with PathCentre. She prepared two reports, the first dated 21 May 2004 and the second, a two-page addendum, dated 28 February 2005. The forensic evidence was to the effect that DNA profiles recovered from cellular material on items recovered from the appellant's house (including sneakers, jeans and a belt buckle) matched the DNA profile of the complainant. Further, there were partial profiles on the appellant's watch and belt that matched the profile from the complainant. The probability of finding the DNA profiles above had come from someone other than and unrelated to the complainant ranged from one in 10 billion to one in 200 million.
4 A partial DNA profile was also obtained from cellular material on a beer bottle found at the scene of the attack. The probability of finding that partial DNA profile coming from someone other than and unrelated to the appellant was less than one in 590.
5 The reports prepared by Ms Furmedge were tendered in evidence at trial (exhibits 24 and 25). The appellant called a forensic expert at trial, Dr McDonald. He testified that the results of the testing on the bottle should not be accepted.
6 The appellant relied on three grounds of appeal being that the learned trial Judge erred in law in:
"1. … allowing the tender of the DNA Reports, Exhibits 24 and 25, as those documents were inadmissible …
2. … allowing the DNA evidence in respect of the material found on the neck of the bottle, as the statistical value was too low to be placed before a jury …
(Page 4)
- 3. … permitting the tender of Exhibits 24 and 25, as it placed too much weight on this evidence, especially in relation to the contested material."
7 At the hearing of the appeal counsel for the appellant conceded that the reports prepared by Ms Furmedge were admissible but contended that they should have been excluded as a matter of discretion (T 18 - 19). There was also a complaint at the hearing about an aspect of the trial Judge's direction relating to the DNA evidence.
The trial Judge's direction
8 The trial Judge gave comprehensive directions on the DNA evidence. He said (T 782):
"We can put to one side any controversy about a large part of the forensic evidence. There is really no dispute about the blood on the items, which I have been mentioning so far, matching the DNA of Mr Dutka and being found on items at [the appellant's house]. The controversial item is the beer bottle. The beer bottle found at Elysee Court at a place that [the appellant] says he never visited would, if it could be connected with him, be powerful evidence against him.
…
[The bottle] was … swabbed around the mouth or the neck … and that swab was processed and revealed what Ms Furmedge said was a weak or marginal DNA result. She has reported upon that result in her detailed report which is exhibit 24 and the table of that has been tabulated. You will remember that the DNA scientists look for nine signposts or loci to provide the connection between a sample and a known test result, and only three connections were provided by this particular sample in addition to a connection which confirmed the gender of the trace was from a male.
Ms Furmedge acknowledged that this was a weak and marginal result but on the basis of statistics and evaluations … the state forensic pathology department, put the chance of it being someone unrelated to the accused - meaning a person who was not related by blood to the accused - [as being] less than one in about 590. That probability, one in less than 590, you may think are long odds themselves and that you would not back a
(Page 5)
- horse at 590 to one, but they are a lot different from one in 2 billion or 10 billion or 5 billion which is the level of confidence with which the other DNA test results were reported."
9 Because the result was marginal and weak, Ms Furmedge decided there should be a second or supplementary test known as a Kiogen test. Although that test was entirely negative, Ms Furmedge considered that it did not detract from the marginal weak result producing the chance of one in less than 590. The trial Judge continued (T 784):
"If you accept Ms Furmedge's opinion, subject to the criticisms which I will come to, you could accept that evidence that there was a weak marginal connection made between the DNA of the accused and the beer bottle found at the scene which he denies ever visiting …
Dr McDonald says that that opinion should not be accepted and acted upon. First of all he says that a result from three loci out of nine only in cases like this does not yield the probability of it being somebody other than the accused as high [as] one in 590 or thereabouts because it depends upon the assumptions made in the calculations. The assumptions which yield that probability are not conservative assumptions.
… Eliminating those assumptions, Dr McDonald puts the probabilities down to as being less than one in 80 and on other approaches says that it may be one in five persons would produce a similar DNA result.
However, Dr McDonald really did not wish to make any use of the marginal sample, the weak marginal sample from the beer bottle, because in his view the fact that a Kiogen test had been conducted in an attempt to enhance the original sample and produced an entirely negative result meant that the first result was a bizarre inexplicable one that could not be accepted or acted upon, and that scientifically no report should be based upon that."
10 As to what the jury were to make of the conflict in expert evidence, the trial Judge directed as follows (T 784 - 786):
"It will be for you to decide what weight and respect should be given to Dr McDonald's evidence in this regard. Clearly he is a
(Page 6)
- person with very great experience and eminence in DNA analysis and testing. It was not suggested that he was in any way incompetent or biased …
…
It will be open for you to prefer Dr McDonald's evidence to that of Ms Furmedge or Ms Furmedge's evidence to that of Dr McDonald. Should you take the latter course and prefer Ms Furmedge's evidence, you would still be left with the question of whether or not a reasonable doubt about the reliability of the test from the beer bottle was raised in your mind by Dr McDonald's evidence, and I have to tell you that his evidence appears cogent; it comes from a respected authority, and from a person with no axe to grind, and that therefore you would need to give great care to your decision before rejecting out of hand Dr McDonald's evidence in that regard. If that were to be done, you would be left in a situation where you are not able to place reliance on the DNA testing from the beer bottle.
However, you might reach a different conclusion and be satisfied that despite Dr McDonald's criticisms you could accept Ms Furmedge's evidence and that it did provide a weak connection which taken with others is sufficient to persuade you beyond reasonable doubt that it was [the appellant] who was the attacker, but you should be cautious about drawing conclusions from the DNA evidence on the neck of the beer bottle found at the scene."
The tender of the expert reports
11 The first of Ms Furmedge's reports contained a table summarising the DNA typing results of items taken from the appellant's house and items taken from the scene of the crime. The appellant's counsel consented to the table being tendered in evidence but otherwise objected to the tender of the reports (T 497). The trial Judge permitted the tender, stating (T 500):
"I'm of the opinion that having regard to the complexity of this evidence for persons not acquainted with biological science, it would assist the jury immeasurably in understanding and evaluating the evidence which is being given by the witness to have the report before them … "
(Page 7)
12 The appellant contends the reports should not have been admitted because they contained material about which no oral evidence had been led and material that was challenged by the defence forensic science expert.
13 The general principles relating to the role of oral and documentary evidence in a criminal trial were considered by Wheeler JA in Vella v The State of Western Australia [2007] WASCA 59 at [42] - [51]. She said (at [49]):
"Nothing in these reasons is intended to suggest that written material should not be made available to jurors where the trial Judge is satisfied that it will, or may, aid comprehension, and where it will not unduly emphasise some aspects of the evidence or lend them an undue air of credibility."
14 The credibility of Ms Furmedge was not in issue. Further, the reports do not unduly emphasise any aspects of the evidence. To the contrary, the reports state all relevant matters in a detached and objective manner and were not a substitute for oral evidence from the witness. Indeed, it was after the conclusion of Ms Furmedge's examination-in-chief that the trial Judge concluded it would be difficult for a lay person to follow the evidence and that the reports would assist the jury's comprehension of the science and the findings (T 498).
15 Further, for the reasons given below, the DNA evidence in relation to the beer bottle was properly admitted. That was the only aspect of the DNA evidence in dispute between the parties. The reports do not unduly emphasise those results. To the contrary, they serve to highlight the point that the probability results relating to the beer bottle are dramatically lower than for the other items, a point reinforced by the trial Judge in his summing up.
16 To the extent that the reports contained material which was not canvassed in oral evidence, they contain nothing relevant or adverse to the appellant and do not otherwise prejudice his position. I am satisfied that the trial Judge did not err in the exercise of his discretion to admit the reports. I would dismiss grounds 1 and 3.
Admissibility of DNA evidence from bottle
17 In relation to the beer bottle the reports of Ms Furmedge state:
(Page 8)
- "The 375 ml EMU Export bottle was sampled from the mouth area and body for the presence of cellular material. A DNA profile was not recovered from the body of the bottle. The results from the mouth area of the bottle have been tabled later."
18 The addendum provides:
"The partial DNA profile recovered from cellular material on BJM 2 Bottle - mouth matched the reference DNA profile from [the appellant].
The probability of finding this partial DNA profile if the cellular material on BJM 2 Bottle - mouth had come from someone other than and unrelated to [the appellant] is less than one in 590."
19 PathCentre tests 10 sites (one of which is for gender). The report on the beer bottle was based on only four sites (including gender) where there were similarities between the DNA profile of the appellant and the material found on the bottle. The appellant contended that the probability of one in 590 was statistically insignificant but of considerable prejudicial effect which effect was increased by the trial Judge's direction as to the horse racing analogy.
20 The DNA evidence from the bottle was but one aspect of an otherwise very strong circumstantial case against the appellant. Within hours of the attack, the complainant's blood was on items in the appellant's possession, two of which (shoes and jeans) had been washed; there was a matching shoe impression at the crime scene and hostility between the appellant and the complainant. Moreover, there was evidence of admissions by the appellant from two sources.
21 No objection was taken at trial to the admissibility of the DNA evidence relating to the bottle which evidence was relevant and properly admitted as part of the body of circumstantial evidence on which the State relied. The weight to be given to that evidence was a matter for the jury. The trial Judge left the jury in no doubt that, standing alone, it was at its highest a weak marginal connection to the appellant. That was reinforced by the discussion relating to the horse racing analogy.
22 Further, the trial Judge directed that although a lot of attention had been given to statistics and probabilities, the jury had to be satisfied beyond reasonable doubt. He said (T 778 - 779):
(Page 9)
- "I warn you, however, that despite the fact that a lot of attention has been given to scientific evidence and statistics and probabilities and chances of one in 10 billion or less than one in 10 billion or one in less than 2 billion or one in less than 590 cases, in this case we are not dealing with statistics. You need to decide whether or not the prosecution has established to your satisfaction beyond reasonable doubt that certain things are so or certain connections or relationships exist. So you should not substitute statistics or probabilities for proof beyond reasonable doubt."
23 The forensic evidence relating to the beer bottle was properly admitted and the trial Judge fully informed the jury of the considerations relevant to assessing the weight to be given to that evidence. I would dismiss ground 2.
24 Accordingly the appeal must be dismissed.
25 BUSS JA: I agree with McLure JA.