Mikus v R
[2011] NZCA 298
•28 June 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA196/2008 [2011] NZCA 298 |
| BETWEEN JULES PIERRE NICOLAS MIKUS |
| AND THE QUEEN |
| Hearing: 24 May 2011 |
| Court: Glazebrook, Simon France and French JJ |
| Counsel: Applicant in person (by video conference) |
| Judgment: 28 June 2011 at 11.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is declined.
BThe application for the appointment of counsel to assist and for orders for further DNA testing is also declined.
__________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
Mr Mikus was found guilty, at a trial in October 2002, of abducting, sexually violating (by rape and unlawful sexual connection) and murdering six-year-old Teresa Cormack on 19 June 1987.
On 1 November 2002 Mr Mikus was sentenced to life imprisonment on the murder charge. On the rape count he was sentenced to preventive detention with a seven year minimum term of imprisonment. In respect of the unlawful sexual connection and abduction counts, he was sentenced to 14 years’ imprisonment on each count.
Mr Mikus now seeks an extension of time to appeal against his conviction. His notice of appeal was received by the Court on 16 April 2008, approximately five and a half years out of time.
Mr Mikus also asks this Court to appoint counsel to act for him and to make orders for further DNA testing.
Background
Six-year-old Teresa Cormack was abducted, raped and murdered on 19 June 1987. Her body was found at Whirinaki beach, which is approximately 20 minutes north of Napier, one week later. She had been buried in a shallow shingle grave.
Teresa set out walking to school on 19 June 1987. The Crown case was that she never entered the school grounds. Rather, she was abducted by Mr Mikus sometime after she ought to have been in class, but was, instead, walking around Napier.
Teresa’s post-mortem was undertaken by Dr Peter Pedlow on 28 June 1987. He took swabs from her mouth and vaginal area. A pubic hair was recovered from her mouth during the post-mortem. Two pubic hairs had been located in her underpants on 27 June 1987.
The cause of death was asphyxia. Dr Pedlow testified that Teresa had light blood-staining around the entrance to her vagina and a small tear in her hymen. The interior lining to the vagina appeared intact. In the pathologist’s opinion, the absence of vaginal injury suggested that penile penetration had not taken place.
However, the Crown called Dr Patrick Kelly, who is a paediatrician at Starship Hospital, to testify on Teresa’s sexual injuries. His evidence was that the absence of injury did not exclude the possibility of penetration. Further, the fact that Teresa’s hymen was torn was indicative that some form of penetration had occurred. The most logical explanation for the fact that her hymen was damaged and spermatozoa found in her vagina was that there had been penile penetration.
Mr Mikus was a suspect for the murder due to his previous sexual offending. However, he provided (now retired) Detective Searle with an alibi when he was spoken to on 9 July 1987. Police were then operating on the (false) premise that Teresa had been abducted prior to 9 am, notwithstanding a report that a girl fitting Teresa’s description was seen in the company of a man fitting Mr Mikus’ description at approximately 10 am.
Mr Mikus, as one of approximately 250 men nominated as suspects, provided a sample of blood and saliva at a doctor’s surgery on 20 July 1987. Mr Mikus’ sample was received by the DSIR[1] on 23 July 1987. Detective Searle did not obtain a hair sample from Mr Mikus,[2] although hair samples were taken from some suspects at a later stage in the enquiry.
[1] The predecessor to the ESR.
[2]Mr Mikus maintains that the Crown had hair samples from him with regard to previous offending and that the colour of his hair does not match the colour of the hairs found on Teresa’s body.
DNA analysis was not a forensic reality in New Zealand in 1987. However, Dr Graeme Dick of the DSIR, having determined that spermatozoa were present in the semen found in Teresa’s vulva, vagina and mouth, took the swabs to the United Kingdom so that the (now) Forensic Science Service might undertake a forensic analysis. However, its technology was insufficiently sensitive to obtain a DNA profile from the samples.
Later DNA analysis
The DSIR did not send the entire vulval swab to the United Kingdom for analysis. It kept a small portion of the original swab on a slide that was vacuum sealed. In addition, it stored two other samples; being a swab taken from Teresa’s vagina and one from her mouth. Those slides were stored, awaiting the day when forensic science had sufficiently evolved that they could be analysed. That day arrived in March 2001, when a DNA profile was obtained from the vulval slide.
At trial, the Crown called evidence from Dr Stephen Cordiner, who was (and remains) a forensic scientist with the ESR. Dr Cordiner examined the various exhibits that had been stored by the ESR and made the decision to test certain items. He explained that DNA testing methods had become more sensitive over time, enabling results to be obtained from smaller quantities of biological material. Furthermore, the science had evolved to the point where results could be obtained from degraded samples. Critically, the sensitivity of DNA analysis had advanced to the point where a profile could be obtained from spermatozoa on a microscope slide.
Dr Cordiner determined that spermatozoa were present in all three samples that had been taken from Teresa at autopsy. However, there was markedly more present on the vulval slide. He sent the vulval slide to the ESR’s laboratory in Auckland to test. The ESR undertook a comparison of the blood samples obtained from the original 250 suspects. The male DNA extracted from the slide was profiled against DNA taken from the profile of the blood sample that Mr Mikus provided in 1987. It was a match.
A sample was cut from Teresa’s red dress, which was sent for analysis as well. No DNA was detected on this sample, however. Other items were also tested. On 15 March 2002, the ESR received “Item 044 Vacuumings”, which comprised detritus, including human hairs, which were taken from the motor vehicle that Mr Mikus owned in 1987. Dr Cordiner testified that there were no forensic findings from the testing of those items that advanced the case for or against Mr Mikus.
Police, in the meantime, set about gathering fresh samples from approximately 900 persons who had, over time, been nominated as suspects. Mr Mikus provided a consensual blood sample at Lower Hutt Police Station on 26 February 2002. This occurred after he had been interviewed and arrested. Mr Mikus was provided with a “notice to suspect” for a voluntary sample under s 7 of the (as it then was) Criminal Investigations (Blood Samples) Act 1995 which he signed.
The second sample from Mr Mikus was received by the ESR on 27 February 2002. Upon testing, the sample rendered an identical match to the DNA profile from the blood sample taken from Mr Mikus in 1987 and, crucially, it matched the profile from the vulval slide.
Comparing the DNA, a forensic scientist, Ms Susan Petricevic, concluded that there was extremely strong scientific support for the proposition that the male DNA on the vulval swab came from Mr Mikus. The likelihood was 60 million times greater than if the DNA came from another male, unrelated to Mr Mikus, selected at random from the New Zealand population.
Ms Petricevic testified that 845 individuals had provided samples for exclusionary purposes. 840 individuals were excluded. Four provided samples from which no results were obtained. Mr Mikus was the only person whose sample matched the profile obtained from the semen contained on the slide. Furthermore, the 21,000 samples held on the New Zealand DNA Databank were also excluded.
Mitochondrial DNA analysis
Analysis of the pubic hairs found on Teresa’s body was also undertaken by Ms Tracey Johnson, of Bode Technology Group, which is a United States-based laboratory. She undertook a mitochondrial DNA (which is inherited through the mother) analysis of the three pubic hairs. This method must be employed on hair, as hair shafts (but not the root) contain only mitochondrial and not nuclear DNA. The quality of the samples was found to be good.
The three hairs were found to have an identical source. The DNA matched Mr Mikus’ blood sample taken on 26 February 2002. Ms Johnson’s evidence in chief was in the following terms:
First question is, how did the points of difference in the mitochondrial DNA from each of those hairs compare to each other? … all 3 hair identically matched each other
So order of base pairs over these 700 sites and the genome from each of those hairs was identical? … Correct.
Does that tell us they are from the same person? … it tells me they are all three the same
Now in addition, to the 3 hairs that you received to analyse did you receive a sample of blood? … Yes I did.
…
A range of races? … Correct.
The number of those on the FBI database? … 4,839.
In cross-examination of Ms Johnson, it was put to her that the more correct conclusion from the mitochondrial DNA analysis was that Mr Mikus “could not be excluded as being the source of the hairs”. She agreed with that statement. She also agreed that she had analysed 700 base pairs out of a total of some 16,000. She explained that this was because scientists examine the part where there is most individual variation but agreed that there are other areas of variation within the molecule. She also appeared to agree that the database for mitochondrial DNA had not grown to a sufficient number for a statistical probability analysis to be undertaken. She was also questioned about contamination but confirmed that, if there was contamination, the sample would come through as a mixture and it had not done so in this case.
The Crown case at trial
The scientific evidence set out above was the lynchpin in the Crown’s case. There was also testimony from witnesses who had seen persons matching the descriptions of Mr Mikus and Teresa together on the day that she disappeared. Further, the Crown called evidence from witnesses with whom Mr Mikus had spoken of his crime.
There were certain facts that were not in dispute at trial. Mr Mikus conceded that the three pubic hairs were found on or in close proximity to Teresa’s body. For the Crown’s part, it accepted that Mr Mikus had attended the Napier office of the Department of Social Welfare, at some point, on the day of the murder. Further, it conceded that Mr Mikus was at his home at approximately 2 pm on 19 June 1987.
Extension of time
For an application for an extension of time to appeal to be granted, it must be in the interests of justice to do so.[3] As this Court recently said in R v Slavich, extension of time applications will invariably reduce to two questions. First, why the appeal was filed late. Second, what merit, if any, the prospective appeal point appears to have.[4]
Reasons for late filing of the appeal
[3] R v Knight [1998] 1 NZLR 583 (CA) at 587; R v Lee [2006] 3 NZLR 42 (CA) at [96].
[4] R v Slavich [2008] NZCA 116 at [14].
The Crown submits that Mr Mikus’ explanation for the extensive delay (the inability to secure legal counsel) in the circumstances falls well short of comprising a satisfactory reason for such a lengthy delay.
The Crown notes that the Legal Services Agency allowed a limited grant of legal aid to facilitate an enquiry by John Rowan QC into the merits of his proposed grounds of appeal. That grant was subsequently withdrawn. There have since been other counsel assisting Mr Mikus on a limited basis.
We accept the Crown’s submissions on this point. It is clear that Mr Mikus has had legal assistance and, in any event, the absence of legal assistance does not explain the delay in at least filing a notice of appeal.
Substantive merit of the appeal
As we understand it, Mr Mikus’ proposed grounds of appeal are:
(a)the 1987 and the 2002 samples taken from him for DNA analysis purposes are different from each other and from later blood tests. He asserts that the 1987 and the later blood tests do not match the samples taken from Teresa’s body. Further, he submits that the 1987 sample was wrongly excluded at trial and that the 2002 sample was possibly taken with a pre-used needle.
(b)the mitochondrial DNA from the hairs found on Teresa’s body is not a unique identifier and there was in any event no match to his blood sample. Mr Mikus also asserts that there were no hair samples taken from him and that the colour of his hair (red to dark brown) differs from the hairs found on Teresa’s body.
(c) media publicity compromised his defence.
(d)allegations of police misconduct, including fabrication of evidence. In this regard Mr Mikus refers to a letter sent to him from a member of the public saying that he (Mr Mikus) had been framed. He also says that the hair samples taken from him in 1983 could have been substituted for the hairs found on Teresa’s body. He says that the police wrongfully denied receiving earlier hair samples from Mr Mikus in 1983 when clearly the samples were obtained. Mr Mikus asserts that defence counsel and forensic experts failed to follow this issue up. Mr Mikus asserts further that his counsel did not properly challenge the evidence in cross-examination.
(e)concerns about the integrity of samples taken from Teresa’s body as the pathologist did not use a standard kit. There was also the possibility of contamination through the use of a sponge.
(f)the police did not follow other leads, including relating to a photographer who had wanted to take photographs of Teresa and her family.
We deal with each of these grounds in turn.
The various samples
As noted above, Mr Mikus submitted before us that the 1987 sample was excluded from his trial. He is mistaken in this. Mr Mikus challenged the lawfulness of the act of assembling the evidence against him during a pre-trial hearing undertaken before Gendall J.[5] The Judge, having heard from the police witnesses involved in securing the bodily samples provided by Mr Mikus in 1987 and 2002, held that both DNA results were admissible at trial.
[5]Hearing on 23 August 2002 with ruling given on 29 August 2002.
Further, Mr Mikus is under the impression that blood tests taken in prison show a different DNA profile from the 2002 sample. He is mistaken. The tests taken in prison are standard blood tests. There was no DNA sequencing undertaken.
Mr Mikus is also mistaken in his assertion that the DNA sequencing relating to the 1987 sample differs from the 2002 sample.[6] We note that Mr Mikus retained and instructed a forensic expert, Dr Peter Cropp, to assist at trial. If there had been any differences between the 1987 and 2002 samples, one would have expected Dr Cropp to have picked that up. Further, Mr Mikus did not seek at the time of his trial to obtain a further analysis of the samples in order to challenge the cogency of the ESR’s DNA results.
Mitochondrial DNA
[6] See at [18] above.
All of the matters Mr Mikus wishes to raise relating to the limits of mitochondrial DNA were put in cross-examination at trial.[7] The jury were thus well aware of these issues. There did not need to be hair samples from Mr Mikus for the DNA analysis to be carried out and it is merely assertion that there was no match of the hairs found on Teresa’s body with Mr Mikus’ blood sample. Again, Dr Cropp was available to advise on this at the time of trial.
Pre trial publicity
[7] See at [23] above.
In a ruling of 26 July 2002 on a change of venue application (from Napier to Wellington) on the basis of excess publicity, Gendall J said:
[7] So the issue for me is whether there [is] a danger, in this case, that strong local prejudice might put a fair trial at risk. Beyond doubt there was extensive wide spread publicity at the time of the child’s disappearance and later discovery of her body. Over months and years her name and the circumstances of her disappearance and death became well known throughout New Zealand. There was intensive publicity within the Napier and Hawkes Bay area but it was not confined to that area. It was nation-wide. It is usually the case that responsible jurors approach their task in a balanced, impartial way, uninfluenced by publicity. Such publicity may have occurred many months before (indeed in this case years before) and any risk of prejudice or sympathy one way or the other can be avoided by firm directions of the trial Judge. I would not think that any person who read newspapers or saw the publicity not only in this area, but nation-wide, at the time would remember any of its detail.
[8] There are many cases where changes of venue have been sought, and declined, despite adverse publicity surrounding alleged crimes and in those cases accused people have been acquitted. Pre-trial publicity must be of such a nature and extent that objectively viewed the risk of possible prejudice or unfairness to an accused is unacceptable. In this case there was no media campaign or sensationalised articles directed at the accused. Nor have there been this year or close to trial any element of political campaigns or general agitation aimed at influencing community feelings, such as (for example) in R v Middleton (CA218/00) and R v Blance, Beams & Peneha (High Court, Napier Registry, T27/2001).
[9] Of course the people of Napier back in 1987, and for many years subsequently, would have felt disturbed and outraged by the disappearance and death of this child. That would, however, have been no more than existed in the wider community of New Zealand to whom the facts surrounding the alleged crime were widely publicised. The case has had public profile nation-wide and probably changed the way that mothers sent their children to school throughout this country. …
[11] I do not accept the argument that prejudice could exist in Napier by reason of pre-trial or other publicity it being no different in Napier than any other High Court centre in New Zealand.
(Emphasis added.)
Gendall J ordered the venue of the trial to be moved to Wellington for a reason unrelated to publicity.[8] It is clear from Gendall J’s judgment that, contrary to Mr Mikus’ submissions, there had not been extensive publicity directed at him. Even had there been, however, while Gendall J’s summing up was not able to be located, we have no doubt, given the fact the issue was obviously in the minds of both counsel and the judge, that Gendall J gave the firm directions he foreshadowed at [7].
[8]During the course of the initial police investigation in 1987, hundreds of general citizens of Napier were interviewed. Gendall J said that there was a real possibility that the jury panel could have persons on it who had some involvement in the initial investigation, so as to give them a feeling of personal involvement with the case.
The question of whether an appellant has been denied a fair trial as a consequence of media publicity is “essentially one of fact and judicial evaluation”.[9] This Court recently rejected this appeal ground in Weatherston v R and emphasised that it is not unusual for murder trials in this country to feature heavily in the media and that the criminal system must proceed on an assumption that judges’ directions are faithfully followed by juries.[10]
Police misconduct
[9] Weatherston v R [2011] NZCA 276 at [29]. See also R v Milligan [2007] NZCA 536.
[10] Weatherston at [13] and [24].
The letter sent to Mr Mikus from a member of the public alleges that Mr Mikus had been framed. The writer of the letter makes a number of allegations, including that Mr Mikus never gave a blood sample to the police when he was first interviewed, that the writer had been promised payment by the police to “[give] them the info they needed”, and that the police had broken into Mr Mikus’ house to take a hair sample. There are no particulars given relating to these allegations and the writer has not been located. The allegations are entirely speculative and lack any evidential foundation.
Mr Mikus’ suggestion of the hair substitution from 1983 is fanciful. It would need a widespread conspiracy and in any event there was the opportunity to explore this issue at trial. Mr Mikus asserts that this opportunity was not taken against his express instructions but this does not accord with the fact of the explicit concession relating to the hairs at trial.[11]
Integrity of samples
[11] See at [25] above.
At trial, Mr Mikus’ counsel attacked the Crown’s forensic evidence on two fronts: first, by identifying the one proven example of “crime scene” contamination and, secondly, by accentuating the fact that the exhibits stored by the ESR had not remained securely under lock and key in the same facility between receipt in 1987 and 2001, when the vulval sample and pubic hairs were analysed.
As to the evidentially founded example of sample contamination, it was suggested to Dr Dick that the pubic hair found in Teresa’s mouth might have come from another body. This was due to the fact that the sponge used to clean Teresa’s body at the mortuary had previously been used on another body for the same purpose. However, Dr Dick explained that Teresa’s underwear, in which he had found two pubic hairs, had never been at the mortuary. Thus, the possibility of contamination was ruled out in respect of the pubic hairs found in Teresa’s underwear. In any event, the mitochondrial DNA analysis confirmed that all three hairs had an identical profile.
At trial, Mr Mikus’ counsel also posited that spermatozoa might have been on the mortuary sponge, thus explaining why Teresa’s mouth swab tested positive for semen. That was within the realms of possibility. However, that concession was not of material benefit to the defence, as the vulval, rather than oral swab, was utilised for DNA testing.
Mr Mikus’ trial counsel also examined, through the ESR witnesses, the integrity of the storage of the exhibits from which DNA profiles were obtained. It was put to Dr Cordiner that rogue exhibits had been found along with those from the enquiry into Teresa’s death. This was denied.
The issues Mr Mikus now seeks to raise were therefore before the jury.
Other leads
The sheer scale of the police investigation makes it very difficult to argue that the police did not undertake a proper investigation.[12] In any event, in light of the very strong DNA evidence there is no realistic possibility that further investigation could throw any doubt on the verdict.
Conclusion
[12] See at [17] above.
There is no proper excuse for the delay in filing the appeal. Further, none of the proposed appeal grounds have any merit.
There remains the issue of the appointment of counsel to assist Mr Mikus and the further DNA testing. Mr Mikus has had legal assistance. There is nothing in what we have heard that would suggest any benefit would be obtained from appointing yet another lawyer to act for him.
As to further DNA testing, Mr Mikus had a DNA expert assisting at trial. That expert did not recommend any independent testing.[13] Nothing we have heard suggests that anything has changed in that regard.
Result
[13] See at [34] above.
The application for an extension of time to appeal is declined. The application for the appointment of counsel to assist and for orders for further DNA testing is also declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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