R v McGeady[2020] QCA 267

SUPREME COURT OF QUEENSLAND

1. [1]
   PHILIPPIDES JA:  I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
2. [2]
   MULLINS JA:  Mr McGeady was convicted after trial before the learned trial judge sitting without a jury of one count of armed robbery in company: R v McGeady [2020] QDC 65 (the reasons).

The facts of the offending

3. [3]
   On 8 November 2017 a robbery was committed at the Mansfield Tavern at around 12.50 am by two persons who covered their faces and wore gloves.  The sum of $77,937.35 was stolen.  A fingertip fragment of a latex glove that appeared to be torn off the glove was located at the scene of the robbery.  The gloves worn by the offenders appeared to be consistent with the fragment.  The trial judge was satisfied beyond reasonable doubt that the fragment of the latex glove was left by one of the offenders and that finding is not challenged on this appeal.  To prove the identity of Mr McGeady as one of the offenders, the prosecution’s case at trial relied upon DNA evidence located on the inside surface of the fingertip fragment of the latex glove.
4. [4]
   Admissions were made at the trial to establish the continuity of the DNA evidence between the taking of the DNA swab from the fingertip fragment of the latex glove and the analysis of that swab by the reporting scientist Ms Taylor.  Ms Taylor had also been provided with a DNA reference sample taken from Mr McGeady.

Issue on the appeal

5. [5]
   The ground of appeal that the verdict is unreasonable or cannot be supported having regard to the whole of the evidence will be resolved by consideration of one issue: whether the DNA evidence was sufficient without any other evidence to prove beyond reasonable doubt that Mr McGeady was one of the robbers.

The DNA evidence

6. [6]
   Ms Taylor’s evidence at the trial was as follows.  A DNA profile was obtained from the swab that indicated the presence of a single contributor.  The DNA profile matched the reference DNA profile of Mr McGeady.  Ms Taylor explained that, based on statistical analysis, it is estimated that the DNA profile obtained is greater than 100 billion times more likely to have occurred, if the DNA had originated from Mr McGeady, rather than if the DNA had originated from someone other than him.
7. [7]
   Ms Taylor disclosed that the DNA profile (from the swab) indicated the presence of possible low-level DNA which was below the reportable threshold for DNA peaks.  Ms Taylor could say that she was not sure whether it was DNA or if it was just “background” or “sort of background noise or from machinery” and it did not interfere with the interpretation that was made of the DNA profile.
8. [8]
   In response to the hypothesis of a person wearing latex gloves for 15 or 20 minutes, whether Ms Taylor would expect there to be a high concentration of DNA within the gloves, Ms Taylor said “not necessarily”, because there were many factors that affected that, including whether the person is a particularly “good shedder” of DNA, the conditions under which the gloves are being worn, whether the hands were dirty and whether the surface of the glove was dirty. Ms Taylor’s laboratory was unable to do testing that ages DNA.
9. [9]
   In cross-examination, Ms Taylor gave the following evidence.  The optimum amount of DNA that the laboratory requires for the amplification process is approximately 0.5 nanograms of DNA.  The capability of shedding DNA is different between different people and, with respect to leaving DNA on the surface, there are a number of factors that are relevant, including the nature of the surface, how dirty or clean it is and the environmental factors.  DNA can last indefinitely stored in the right conditions, but it is destroyed by such things as heat, UV light, moisture and certain dyes in fabrics.  There are a number of factors that can affect the touch and transfer of DNA between people, between surfaces and so on.  It is possible for DNA to be transferred from one person to another and then to a third person.  Direct, primary, secondary, tertiary and possibly even beyond tertiary transfer of DNA is possible.  In this particular instance, there was indication of possible low-level DNA, but it was below the laboratory’s reportable threshold and so it could not be said that it was DNA and it could not be said that it was not DNA.  It indicates there is possibly low-level DNA present, but that cannot be determined.  In re-examination on this topic, Ms Taylor explained:

“It’s possible that it’s not DNA.  We – we cannot say.  So that’s why we just give an indication that it could possibly be … additional low-level DNA, but then again, it may not be.”

The reasons

10. [10]
    Mr McGeady did not give or call evidence.  Before the trial judge, the prosecution had submitted that in the absence of an explanation for Mr McGeady’s DNA being on the fingertip of the latex glove, an inference of guilt could be more safety drawn.  As the trial judge considered that the inferences consistent with Mr McGeady’s innocence relied upon by his counsel included secondary or tertiary transfer of his DNA in circumstances where that would not necessarily be known to him, the trial judge concluded (at [75] of the reasons) that he should not place any significance upon the absence of an explanation by Mr McGeady.
11. [11]
    The trial judge observed (at [80] of the reasons) that Mr McGeady did not become a suspect until his DNA was matched and, apart from the DNA evidence, there was no evidence implicating Mr McGeady in the commission of the offence.  The trial judge made specific reference (at [80] of the reasons) to the fact that there was no evidence linking Mr McGeady to any staff member or patron of the hotel and there was no evidence of unexplained wealth in his bank accounts.
12. [12]
    The critical analysis by the trial judge in respect of the probative value of the DNA evidence is set out at [84]-[86] of the reasons:

“[84] I am also satisfied that the only rational inference to be drawn from the presence of the defendant’s DNA on the fingertip of the latex glove is that he was one of the offenders. The theoretical possibility of the transfer of DNA by other means is unrealistic.

[85] The fact that the defendant’s DNA was located on the inside surface of the fingertip of the latex glove is significant. Ms Taylor said that DNA can last indefinitely when stored in the right conditions. However, DNA is destroyed by such things as heat, UV light and moisture. There is also the fact that there is no evidence of any contribution of DNA from any other person. The analysis revealed the presence of possible low-level DNA from another contributor, but it is by no means clear that there was another contributor.

[86] The theoretical possibilities of secondary and tertiary transfer of the defendant’s DNA, leading to it being on the inner surface of the fingertip of the latex glove are not reasonable hypotheses and, in my view, can be excluded.”

The appellant’s submissions

13. [13]
    Mr Hoare of counsel who appears pro bono for Mr McGeady, together with his instructing solicitors, submits the conclusions of the trial judge do not address the inherent frailty of the DNA evidence which stood alone and without any other support, as was illustrated by the successful appeal in Fitzgerald v The Queen (2014) 88 ALJR 779.  As it was not a case where there was a combination of items linked to the robbery found with the DNA of an offender or there were other pieces of circumstantial evidence linking the offender to the offence, the DNA evidence by itself could not sustain a verdict of guilty.
14. [14]
    In addition, it is submitted the trial judge erred in rejecting the theoretical possibilities of secondary and tertiary transfer of Mr McGeady’s DNA to the inner surface of the fingertip of the latex glove as reasonable hypotheses.  Mr Hoare contrasts this case with R v Richardson [2010] QCA 216 where (at [23]) secondary transference was treated as inherently unlikely.  Mr Richardson’s DNA profile matched the DNA profile of the major contributor to the swab from the door handle on the inside of the counter door of the post office that was robbed which was an unlikely location for secondary transference, as the staff side of the door was not a place to which members of the public normally had access.

The respondent’s submissions

15. [15]
    The respondent emphasises that there were two significant factors in the assessment of the probative nature of the DNA results in this case.  First, was the location of the DNA swab from inside the finger tip of the glove in circumstances that were described by Mr Bain of counsel for the respondent as “the intimate and extended nature of the contact between the offender and that part of the glove” where there must have been a level of friction with the offender’s finger in the process of the fingertip fragment being torn off.  Second, the DNA profile indicated the presence of a single contributor which matched the DNA profile of the appellant.  Even though Ms Taylor accepted there was the presence of “possible low-level DNA”, Ms Taylor was not even sure whether it was DNA.
16. [16]
    The respondent submits that the possibility of secondary or tertiary transfer of DNA material is speculative, particularly as it relies on the transferor not leaving sufficient DNA for it also to be detected in the swab, and there was therefore no evidentiary basis which made it a reasonable hypothesis.

Was the DNA evidence sufficient in the circumstances to prove the appellant’s guilt beyond reasonable doubt?

17. [17]
    As the outcome in Fitzgerald shows, the possibility of secondary transfer can undermine the probative value of DNA evidence.  There was evidence in that case, however, of at least two occasions on which a secondary transfer of Mr Fitzgerald’s DNA may have occurred that could have explained his DNA at the crime scene.
18. [18]
    Even accepting the limitation of DNA evidence that it cannot reveal when the DNA was deposited, as the trial judge’s reasoning shows, the location of Mr McGeady’s DNA on the inside surface of the fingertip of the latex glove that was worn by one of the robbers is significant in conjunction with the fact that there was no evidence of contribution of DNA from any other person.  The possibility of the presence of low-level DNA from another contributor was unclear, in view of Ms Taylor’s inability to say whether or not it was even DNA.  It is therefore speculative that the DNA in the swab that matched Mr McGeady’s DNA was deposited by secondary or tertiary transfer.  It does not make it any less speculative by contrasting the facts of Richardson.  There was no error in the trial judge’s conclusion that the theoretical possibilities of secondary and tertiary transfer of Mr McGeady’s DNA to the inner surface of the fingertip of the latex glove as reasonable hypotheses could be excluded.
19. [19]
    In the circumstances in which the DNA evidence of a single contributor to the DNA was located in this case, the DNA evidence was sufficient without any other evidence to prove beyond reasonable doubt that Mr McGeady was one of the robbers.  The verdict of guilty was not unreasonable.
20. [20]
    The appeal should be dismissed.
21. [21]
    WILLIAMS J:  I have read the reasons of Mullins JA and agree with those reasons and the order her Honour proposes.