Fitzgerald v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Hayne,Crennan,Kiefel,Bell,Gageler JJ
• Judgment Date: 13 August 2014
• Neutral Citation: [2014] HCA 28
• Docket Number: A9/2014
• Date: 13 August 2014

[2014] HCA 28

HIGH COURT OF AUSTRALIA

Hayne, Crennan, Kiefel, Bell and Gageler JJ

A9/2014

Daniel Glenn Fitzgerald

Appellant

and

The Queen

Respondent

Representation

D M J Bennett QC with A L Tokley SC and S A McDonald for the appellant (instructed by Iles Selley Lawyers)

J P Pearce QC with T J Ellison for the respondent (instructed by Director of Public Prosecutions (SA))

Criminal Law Consolidation Act 1935 (SA), s 353(1).

Fitzgerald v The Queen

Criminal law — Evidence — DNA evidence — Where appellant's DNA obtained from object found at crime scene — Whether DNA evidence sufficient to establish beyond reasonable doubt appellant's presence at, and participation in, crime committed.

Words and phrases — ‘DNA evidence’, ‘joint enterprise’, ‘primary transfer’, ‘secondary transfer’.

1. Appeal allowed.

Set aside the orders of the Court of Criminal Appeal of the Supreme Court of South Australia made on 16 August 2013 and in their place:

• (a) order that the appeal to that Court against conviction is allowed and the appellant's conviction is quashed; and

• (b) direct that a judgment and verdict of acquittal is entered.

1 Hayne, Crennan, Kiefel, Bell and Gageler JJ Shortly before 6:00am on 19 June 2011, a group of men forced their way into a house in Elizabeth South in South Australia and attacked two of the occupants with weapons including a gardening fork and a pole. One victim, Kym Bruce Drover, died four days after the attack and another, Leon Karpany, sustained serious brain injuries.

2 The appellant was charged on information with one count of murder and a second count of ‘aggravated causing serious harm with intent to cause serious harm’ contrary to ss 11 and 23(1) respectively of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) arising out of this incident. After a joint trial before a judge and jury in the Supreme Court of South Australia, the appellant and his co-accused, Grant Andrew Sumner, were convicted on both counts. Each is serving a term of life imprisonment subject to a non-parole period of 20 years consequent upon the convictions. The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of South Australia.

3 The prosecution did not contend that either Sumner or the appellant inflicted the fatal blow on the deceased or the blows that occasioned serious injury to Leon Karpany. Shortly stated, it was the prosecution case that Sumner and the appellant were members of the group that forced entry into the house and that each member of the group was a party to a common plan to cause grievous bodily harm to persons inside the house. The real issue in the appellant's trial was the sufficiency of the evidence to establish that he was one of the group. The prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish that fact. The appellant argued unsuccessfully before the Court of Criminal Appeal that the verdicts were unreasonable and could not be supported by the evidence.

4 Section 353(1) of the CLCA relevantly provides that the Court of Criminal Appeal:

‘shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’.

5 The parties agreed that the applicable principles are to be found in M v The Queen1, as explained in MFA v The Queen2. The question which an appellate court is required to consider to determine whether a verdict of guilty ‘is unreasonable, or cannot be supported, having regard to the evidence’ 3 is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

6 The appellant's first ground of appeal, by special leave to this Court 4, contended that the Court of Criminal Appeal erred in failing to find that upon the whole of the evidence the verdicts could not be supported. The appellant's second and third grounds were different ways of stating that contention.

7 At the conclusion of the hearing of the appeal in this Court orders were made allowing the appeal and directing that a judgment and verdict of acquittal be entered. What follows are the reasons for making those orders.

The facts

8 The appellant's co-accused, Sumner, visited the house in Elizabeth South twice on 19 June 2011. Approximately two hours before the attack, Sumner had been involved in several physical altercations at the house. One such altercation, described as a ‘play fight’, resulted in Sumner splitting the lip of the deceased. At one stage during those altercations, Sumner sat on a freezer in the kitchen near where the didgeridoo was located. Events culminated in a fight at the front of the house between Sumner and his father, as a result of which Sumner suffered a fracture to his jaw and was chased away from the house by the deceased. Eyewitnesses at the scene gave evidence at the trial that Sumner, together with his mother, shouted threats of retaliation as they drove away. Sumner gave unchallenged evidence that before this first visit to the house he had attended a boxing match at which he had occasion to shake hands twice with the appellant,

including at about 10:30pm. The significance of this evidence will be explained later.

9 Shortly before 6:00am, the intruders, including Sumner, arrived at the house in several motor vehicles. The men split into two groups and simultaneously attacked the property, forcing their way in through the front and rear doors. Some men were armed with axes and gardening forks, while others armed themselves opportunistically upon entering the house. The group attacked the occupants as described at the outset of these reasons.

10 As mentioned above, at the trial of the appellant and Sumner the prosecution contended that both men were part of the group that had forced entry into the house armed with weapons for the purpose of inflicting grievous bodily harm on one or more of the occupants. There was no direct evidence that either man inflicted harm on the deceased or Leon Karpany.

11 It was an agreed fact read to the jury that six persons who were present during the attack, and were shown photographs of the appellant, failed to identify him.

12 The appellant was excluded from DNA results taken from a variety of objects found at the crime scene and from four out of five forensic samples taken from the didgeridoo. However, one forensic sample from the didgeridoo, Sample 3B, contained a mixed DNA profile of ‘major’ and ‘minor’ contributors. The appellant's DNA was the major contributor and an unknown source was the minor contributor.

13 The prosecution case was that the presence of the appellant's DNA on the didgeridoo, together with apparent blood stains containing the DNA of the deceased and Leon Karpany, sufficed to prove the appellant's presence at the scene as one of the intruders. That case depended upon satisfaction beyond reasonable doubt that the appellant's DNA was transferred by him to the didgeridoo at the time of the attack.

14 The appellant did not give evidence at the trial.

The evidence concerning the didgeridoo

15 Nardene Wanganeen, Sumner's aunt and the tenant of the house, gave evidence that the didgeridoo, normally kept beside the washing machine in the laundry, had been acquired in 2009 by her late partner. Although she stated that she did not allow people to play the didgeridoo, at around 5:00pm on the night before the attack the didgeridoo had been played by the deceased. Nardene Wanganeen did not know the appellant.

16 The deceased's sister, Leticia Webb, gave evidence that during the course of the attack at the house she had grabbed the didgeridoo defensively when it was next to the freezer in the kitchen. She gave evidence that she put the didgeridoo back next to the freezer when commanded to put it down by the intruders and that she did not take it into the lounge room.

17 The didgeridoo was found in the lounge room in close proximity to where the deceased was left after the attack. There was no evidence of how it came to be in the lounge room and no direct evidence that it was used in the attack.

The evidence concerning DNA

Sample 3B

18 That the appellant's DNA was contained in Sample 3B was not challenged by the appellant.

19 A qualified forensic expert, Dr Julianne Henry, gave evidence at the trial for the prosecution. She explained that Sample 3B came from an area on the didgeridoo showing ‘reddy-brown stains’ which had been removed using a scalpel. The sample consisted of two separate ‘bloodlike stains’, one having a diameter of 2 millimetres by 1 millimetre and the other a diameter of less than 1 millimetre. Dr Henry said that even if the abovementioned ‘reddy-brown stains’ were in fact blood (as indicated by a presumptive test), that circumstance did not prove that the DNA in Sample 3B derived from blood because the DNA may have been ‘under the stain’, ie placed on the didgeridoo at an earlier time. She agreed with counsel for the prosecution that the ‘reddy-brown stains’ may have ‘contributed nothing’ to Sample 3B.

DNA and blood

20 Dr Henry explained that DNA, a molecule in cells from the human body, can be transferred to an object in biological fluid such as blood (or saliva) or through contact with a person's skin. She said the amount of DNA transferred through contact with a person's skin, called ‘contact’ or ‘trace’ DNA, is low compared to the amount of DNA transferred in a biological fluid. Finally, Dr Henry gave evidence that some people ‘shed’ contact or trace DNA more readily than...