R v Douglas Cramer [1997] ACTSC 55 (28 July 1997)

SUPREME COURT OF THE ACT

THE QUEEN v. DOUGLAS CRAMER
No. SCC 64 of 1997
Number of pages -
4
Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Evidence - Admissibility - Glass fragment found on accused person's clothes - Whether scientific evidence of half life of glass particles on clothing admissible - Whether survey evidence of frequency of glass fragments found on clothing admissible - Probative value outweighed by danger of unfair prejudice to defendant.

Evidence Act 1995 (Cth), s137

Arnotts Ltd v TPC (1990) 24 FCR 313, cited

HEARING

CANBERRA, 28 July 1997 (hearing and decision)

28:7:1997

Appearances

Counsel for the Crown: Mr T Golding

Solicitor for the Crown: Director of Public Prosecutions

Counsel for the Accused: Mr J Sabharwal

Solicitor for the Accused: Deacons Graham & James

ORDER

THE COURT RULES THAT:

1. The evidence of a glass fragment having been found on the accused's clothing would not be admissible in evidence if led.

DECISION

HIGGINS J

On Monday, 28 July 1997, after the jury had been empanelled, Counsel for the Crown, Mr T Golding, indicated that he wished to have a question of law determined before the Crown opening began.

The matter concerned the admissibility of fresh evidence which it was proposed to lead from an expert witness, David John Royds, a senior forensic scientist employed within the Forensic Services Division of the Australian Federal Police.

Mr Royds had examined the clothing of the accused following police investigation into an apparent arson at the premises where the accused was employed.

At that stage in the proceedings, the accused had been charged with arson and with the theft of $20,000.00 worth of cabcharge vouchers at or about the time of the fire, that is, 17 May 1995. He had pleaded guilty to that latter charge but not guilty to the charge of arson.

He had, at committal, given evidence that he had entered the premises to open them for the day. He noticed the fire in the front already fiercely burning. He saw the cabcharge vouchers a short distance away from the rear entrance, by which he had entered, stacked on a table. He took them and left. He did not approach the building thereafter though he was present nearby when the Fire Brigade extinguished the blaze. After he left the scene but before the Fire Brigade arrived, a hole had been observed in a front plate glass window.

On the day of the fire, the accused surrendered to police clothing which he said he was wearing at the time of the fire. It was, within 24 hours thereafter, examined by Mr Royds who reported, at that time, that he found nothing of significance.

However, at the time of his examination of the accused's clothing, Mr Royds had in fact located a tiny fragment of glass. At that time he had no interest in, nor had he undertaken any study in relation to, glass fragments or the propensity of clothing to contain or retain glass fragments.

Subsequently, however, he studied at the University of Strathclyde in Scotland for, and successfully completed, a Master of Science degree in the area of forensic science.

There experiments were undertaken in which Mr Royds participated. In those experiments, students were peppered with glass fragments and the particles adhering to clothing were then counted at various subsequent time intervals.

Those experiments were not related to Mr Royd's Master's thesis, but he indicated that he could give evidence that (relevantly),

I've repeated that test on several occasions, and what we have found is, generally, as a rule of thumb, you can say that the half life of glass on clothing is about 30 minutes. In other words, if a person has, say, 50 fragments of glass on their clothing at a particular time with just general wear, walking around a laboratory, that sort of facility, in half an hour you would expect to find 25 fragments. In an hour, you would expect to find about 12, and it's an exponential drop-off - exponential decay rate of loss.

Mr Royds made it clear that, in making that statement, he was not implying that any change occurred in the nature or composition of either the glass or the clothing in question. The drop-off of glass fragments was a result only of the activity of the person wearing the clothing.

Thus, while it may be of interest to a statistician, it would be impossible, without more, to infer from the presence of glass fragments on the clothing of a person at a particular time, that there had been a greater number of similar fragments present at an earlier point in time. This would particularly be so if the activity of the person, or lack of it, could not be demonstrated.

However, that was not the only relevance which the evidence in question was said to have had.

On examination of the clothing in question, Mr Royds had shaken it over a paper sheet. He then similarly shook out the bag in which the clothing had been contained. It was his recollection that there appeared to come from the accused's trousers, a small fragment of glass about the size of a full-stop.

The finding of a glass fragment, however small, might be significant if it had come from the crime scene and if such glass had been indicative of what Mr Royds described as the "back-scatter" of glass from a window broken close to where the accused then was. For example, if he had been close to the front window when it was broken that would have been inconsistent with his evidence at the inquest that he had entered the premises after the fire had begun and did not go near the front window. Indeed, his evidence was not consistent with being proximate to any breaking window at the crime scene.

At the time of finding the glass fragment, Mr Royds was mindful of an earlier statistical study, published in 1971, demonstrating that in a study of 100 men's suits submitted for dry-cleaning, 500 or so glass particles were found. Of the suits, 63 returned a positive result. The location of that survey was Berkshire, England. By reason of that, when he found the glass fragment in question, Mr Royds attached no particular significance to it.

Following his studies at Strathclyde, however, Mr Royds became doubtful of the validity of that study. He reconsidered his previous opinion and, as a result, conducted an experiment of his own. He engaged two students to accost persons passing by in the Belconnen Mall and persuade them to surrender their outer upper garment, if they had one, for examination. The garment was then shaken over a paper surface to collect any objects adhering to it. The results were then examined in Mr Royds' laboratory. Of 513 garments so examined, only two returned a glass fragment.

The difficulty of logically extrapolating this result to any particular case is obvious.

Most of the subjects of the survey were young people. Many were students. It was conducted in a school holiday period. The garment and cloth types were, nevertheless, carefully noted.

How that survey assists to conclude that it would be usual, or unusual to a significant degree, to find a glass fragment on the accused's trousers is not clear.

It should be borne in mind that, to be admissible, evidence of the results of surveys need to conform to high standards of reliability. Guidance on this class of evidentiary material can be found in Arnotts Ltd v TPC (1990) 24 FCR 313, 358-365.

The fragment may have assumed some probative value if it had matched the glass of the window noticed by security guards as broken before the Fire Brigade arrived and after the fire was in progress. The break was described as circular and about one metre in diameter.

In view of the fact that, initially, Mr Royds attached no significance to the glass fragment he had found, no questions had been directed to the accused, when he was interviewed by police, asking him to explain the presence of the glass fragment.

The fragment was not tested against glass found or recovered from the fire scene. That was, of course, understandable in the circumstances.

Any such glass has long since been removed from the scene and is now not recoverable either to confirm or deny similarity with the recovered glass fragment.

In my view, the evidence, in those circumstances, is not capable of supporting any relevant inference. The only relevant inference would be that the accused was present when the front window of the premises was broken, assuming that window to have been broken so as to simulate either a point of entry or exit for a burglar or a point at which an incendiary device or substance might be thought to have been introduced into the front office area of the premises. It was not alleged that the accused was or could have been in the building when windows exploded during the course of the fire.

Even if the presence of the glass fragment was not inconsistent with the accused breaking the window in question, it seems to me that the evidence is of such questionable probative value that it should be excluded pursuant to s137 of the Evidence Act 1995 (Cth). That provides,

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

In this case, the probative value of the evidence of the location of the glass fragment was very small, particularly as the accused had not been asked to explain it. It could only, by being highlighted, have invited the jury to speculate that it came from the scene of the fire although that conclusion could only ever have been a mere possibility.

For those reasons I ruled that the evidence would not be admitted if led.