Practice and Procedure


PUBLISHED July 14, 2003

Where the defendant's DNA and partial DNA of another was found in gloves used in a robbery the judge was right to refuse a submission of no case to answer as this was not a case where evidence available pointed equally to one of two people being the offender. There was significant evidence linking the defendant to the robbery and his conviction was safe.Appeal, with leave of the full court, against a conviction for robbery and having a firearm with intent to commit an indictable offence. The defendant ('D') was sentenced to life imprisonment with the minimum period set at five years. On 9 April 2001, two men carried out an armed robbery on a night club, stole cash, the manager's credit cards and car keys. One of the men ran the blade of the knife over the finger of a glove he was wearing cutting off the tip. When the men eventually ran off the police were called and the piece of glove was examined forensically. The staff gave a description of the knife carrier as a white male of medium to skinny build about 5 feet 8 inches tall. Two samples of DNA were recovered one which matched D's, the other did not provide a full profile and it was not possible to ascertain who wore the gloves last. During interview D denied ever having gone to the night club, when asked about the DNA he said he used surgical gloves to highlight his girlfriend's hair and then threw them away. It was possible someone had taken the gloves from the bin prior to the offence being committed. At the close of the prosecution's case D made a submission of no case to answer, which the judge refused. D gave evidence in accordance with what he said in interview. D appealed conviction on the ground that under the second limb of R v Galbraith (1981) 73 CAR 124 the judge should have ruled there was no case to answer because the DNA evidence showed that another person could have committed the robbery.HELD: (1) This was not a case where the evidence available pointed equally to one of two people being the offender. There was significant evidence against D. He matched the description given of the person seen wearing the gloves and holding a knife. Further D admitted he had had possession of the gloves and had used them. That left the question how the gloves could possibly get from his girlfriend's house into the robber's hands and then used by another. (2) The judge was entitled to take the view that the account given by D was incredulous. There was material the jury were entitled to consider and they were entitled to consider the evidence of D. (3) In the circumstances the judge had to be very careful not to usurp the jury's function. He had a discretion to exercise and this court should not lightly interfere. (4) The conviction was clearly safe. This was a planned robbery, there was evidence connecting D with the scene and the account he gave, in a number of respects, was very difficult to accept.Appeal dismissed.