Tilley v The King

Case [2023] SASCA 80

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TILLEY v THE KING

[2023] SASCA 80

Judgment of the Court of Appeal  

(The Honourable Acting Chief Justice Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Buss)

3 August 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - ADMISSIBILITY GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY

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

CRIMINAL LAW - PROCEDURE - SUMMING UP

This is an appeal against conviction.

Following a trial, Matthew Donald Tilley, the appellant, was found guilty of the murder of Mrs Suzanne Poll on 29 April 1993. The appellant was not arrested and charged with the offence until 21 September 2019. The trial commenced in November 2021.

The prosecution alleged that the appellant attended the Sands and McDougall newsagency located at Parabanks Shopping Complex in Salisbury (‘the newsagency’) on the evening of 29 April 1993 and stabbed Mrs Poll to death in the rear office of the store. There was no apparent motive for the offence.

There was no dispute that the offender stabbed Mrs Poll multiple times with the requisite intention to commit murder. The central issue in dispute at trial was identity. The prosecution case was wholly circumstantial and based primarily on DNA evidence which supported the proposition that the appellant was a contributor to multiple blood stains located at the crime scene. The prosecution alleged that in the course of the attack the appellant sustained a free-bleeding injury which caused him to deposit blood at various locations between the rear office of the newsagency (where Mrs Poll's body was found) and the sole point of entry/exit to the store.

The appellant did not give or call any evidence at the trial. Defence counsel challenged the accuracy and reliability of the DNA evidence; and contended that evidence adduced as part of the prosecution case raised a reasonable doubt as to whether the prosecution had proved the appellant was the offender.

The appellant now appeals against the conviction on the following, consolidated, grounds:

1.The trial Judge erred as a matter of law in his directions to the jury in relation to the absence of motive, inter alia, in that his Honour erroneously directed the jury that the prosecution did not have to prove motive because, in a case such as the present, ‘they would not know what it was themselves’ and ‘that it was a responsible position to take’.

2.The trial Judge erred in his directions to the jury as to the forensic evidence by failing to direct the jury that before they could rely on the forensic results, they must be satisfied beyond reasonable doubt that: the chain of evidence was established; and the risk of contamination was excluded.

2A. The trial Judge erred…

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Tilley v The King [2023] SASCA 80
Case
[2023] SASCA 80
Decision Date

CaseChat Overview and Summary

The case of *Tilley v The King* concerned an appeal against a conviction for murder. The prosecution's case was that the deceased was stabbed to death during a robbery at a newsagency. The appellant's conviction was based, in part, on DNA evidence obtained through a "familial search" of a DNA database. The appellant argued that this method of DNA searching was unlawful and infringed upon his right to genetic privacy.

The central legal issue before the Court was whether the process of familial searching, as conducted in this case, constituted an unlawful use of the DNA database under the relevant legislation. Specifically, the Court had to determine if section 45(2)(a) of the *Crimes Legislation Further Provisions Act* (CLFPA) permitted such a search, and whether this interpretation was consistent with the broader purpose of the Act and the protection of genetic privacy.

The Court reasoned that a plain reading of section 45(2)(a) of the CLFPA allowed for the comparison of DNA profiles lawfully stored on the database. The familial search undertaken involved precisely this: comparing DNA profiles to identify potential relatives of the donor of an unknown DNA profile found at the crime scene. The Court found that this process did not involve an unlawful use of the database, nor did it directly engage with the appellant's DNA profile or migrate it into the database. The Court also considered section 50 of the CLFPA, which governs disclosure of information from the database, and found that its provisions for disclosure for criminal investigation purposes complemented the permissible uses outlined in section 45(2)(a). The Court concluded that the familial searching conducted in this case was permissible under the statutory scheme.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Permission to appeal on Grounds 2, 3.1, 3.4 and 4 was granted and the question of permission to appeal on the balance of the remaining grounds was referred to this Court for consideration. Overview of the evidence The prosecution case was that Mrs Poll had been stabbed to death at about 9:00pm on Thursday, 29 April 1993, while she was working alone in the newsagency. There were no eyewitnesses to the stabbing. The weapon used in the attack was never recovered by police. At the time of the discovery of Mrs Poll’s body, the store cash register draw was open and almost empty, and Mrs Poll’s handbag had the appearance of having been rifled through, thus raising the possibility that her death was connected to a robbery. Mrs Poll was last seen alive at about 8:55pm by witnesses Lisa Watts (a co‑worker) and Ms Watts’ husband, Anthony Watts. Mrs Poll’s body was found at about 10:00pm by her husband, Darryl Poll, who attended at the store after she failed to return home by the expected time. Thus, the prosecution placed the timing of her death at between 8:55pm and 10:00pm. Mrs Poll had been stabbed to death in a small staff-only office area located at the rear of the store behind the main service counter. Her body was found lying face-up on the floor and her handbag was nearby. The office door appeared to have been recently damaged as a result of the bottom part being pulled away from its frame with considerable force. There was no dispute that the cause of death was haemorrhaging due to 18 stab wounds to the back, six of which penetrated so deeply that they exited through the front of Mrs Poll’s chest cavity and abdomen. There were also incised wounds to both hands, areas of the back, and the left side of her scalp, consistent with defensive wounds. Based upon the physical characteristics of the stab wounds, a forensic pathologist, Dr Ross James, concluded that a strong-bladed knife at least 22cm long had been used to inflict the wounds. By reason of the nature and severity of the knife attack, ‘the large spillage of blood at the crime scene’, and the likely size and sharpness of the knife used in the attack; the prosecution alleged that the offender had sustained a free-bleeding injury whilst stabbing Mrs Poll. There was a pool of blood on the floor under, and around, the body of Mrs Poll which, if trodden in, could have accounted for the presence of shoe impressions in the rear office and main shop area leading to the single point of entry to, and exit from the shop. The shoes worn by the first police officer on the scene, Mr Poll, and the only ambulance officer to go into the office area, were provided to forensic examiners and were accounted for amongst the shoe marks, thus leaving a number of unidentified shoe marks at points located between Mrs Poll’s body and the shop door. The shoe prints appeared to follow a path from the inside of the office to the shop door consistent with the departure route of the injured, free-bleeding offender after the attack. At the time of his arrest in September 2019, a men’s size nine shoe was the optimum fit for the appellant. The unaccounted shoe impressions were within that same size range.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the respondent, it is contended that familial searching does not involve an unlawful use of the DNA database. The respondent submits that s 45(2)(a) of the CLFPA expressly allows a ‘familial search’ in the sense that the technical forensic searching task undertaken in this case involved a comparison of DNA profiles lawfully stored on the database. Consideration This Court must begin with the words used by the section considered in their statutory context. A plain reading of s 45(2)(a) permits an authorised person to access information stored on the database for the purpose of comparing one profile stored on the database with another profile stored on the database. In the present case, the scientific task described as ‘familial searching’ involved the comparison of DNA profiles lawfully stored on the database. More specifically, the FSSA undertook numerous individual comparisons of DNA profiles in the suspects/offenders index and identified one potential male relative of the donor of the unknown male DNA profile taken from the crime scene sample JPH1.6.A. Contrary to the appellant’s contentions, a plain reading of s 45(2)(a) which permits familial searching is also supported by the broader context, and purpose, of the CLFPA. The legislative provisions, which provide for a DNA database and regulate the information which may be stored within the database and its use, are enacted in the context of a statutory scheme which envisages the storage of DNA profiles on a database for future use in connection with ongoing and future criminal investigations, and for admission into evidence. Notwithstanding the express strictures within the CLFPA as to what will constitute an impermissible use of the database, it does not expressly preclude familial searching (in terms of the scientific processes which were undertaken in this case.) By contrast, for example, s 45(3)(a) provides that a person must not compare a DNA profile stored on the volunteers (limited purposes) index, with a DNA profile stored on another index, if the volunteer has not granted consent. There is no such restriction placed on the use of familial searching. Further, s 50 of the CLFPA prohibits disclosure of information stored on the database unless the disclosure is necessary for a specified purpose or otherwise authorised by the section. The disclosure exceptions in s 50(1) align with the permissible use provisions in s 45(2). In particular, s 50(1)(a) permits disclosure where it is ‘necessary for criminal investigation purposes or a missing persons enquiry’, and complements s 45(2)(a) which authorises the disclosure of results of a database search to law enforcement for the purpose of criminal investigation. Thus, read together, ss 45 and 50 govern the permissible and impermissible uses of forensic material stored within the DNA database and support a plain reading of s 45(2)(a) to permit familial searching as it was conducted in this case. In relation to the appellant’s submissions that familial searching (as it was conducted in this case) infringes a person’s right to genetic privacy such that, unless expressly provided, s 45(2)(a) should not be construed to permit familial searching, it is important to emphasise the limited reach of the actual processes undertaken. The familial searching conducted in this case did not reveal the appellant’s DNA profile, nor did it migrate his DNA profile into the database at all. The familial searching exercise only resulted in the identification of the appellant’s brother as a potential male relative of the contributor to the unknown male DNA profile extracted from the crime scene sample JPH1.6.A. It did not engage directly, or at all, with the appellant’s DNA profile. As much is borne out by the prosecutor’s concession at trial that the police, upon receipt of the second familial search report, did not have reasonable cause to suspect the appellant of having committed the offence; and once he declined to provide his DNA sample, they had to resort to other investigative techniques outside of conducting a forensic procedure (as defined in the CLFPA) to further their investigation.