R v Berry & Wenitong [2007] VSCA 202

R v Berry & Wenitong [2007] VSCA 202 - VSCA 2007 case summary — Zoe

[30]

25 In relation to the bloodstain, item 10(e)(i) the expert evidence relied upon by the Crown was to the effect that it would be at least 72 million times more likely that the DNA came from the deceased than from a person selected at random from the Victorian caucasian population. In relation to the DNA found in the unstained portion of the sock, item 10(e)(ii), the expert evidence relied upon by the prosecution was to the effect that DNA from at least four individuals was present at that site. It was the Crown case that the largest portion of that DNA material matched a DNA profile of a person by the name of Ali. His DNA was not detected in any other DNA material relied upon by the prosecution. Ali was not in custody at the time of the deceased's murder and had not been at Barwon Prison at any material time. He had been a prisoner at Port Phillip some two months earlier when the deceased was a prisoner there and before the deceased was transferred to Barwon Prison. Neither the deceased nor the first or second applicants could be excluded as contributors to this DNA material. The Crown relied upon the evidence of an expert, Dr Roberts who by calculation of 'Likelihood Ratios' found that the mixture of DNA profiles from item 10(e)(ii) would be at least 180 times more likely to occur if it did contain DNA from Ali, the deceased, both applicants and one unknown person than if it contained DNA from Ali and three or more unknown individuals. He testified that this statistical conclusion provided strong support for the proposition that Ali, the deceased, the two applicants and an unknown person were the source of the DNA in item 10(e)(ii). He also testified that the DNA evidence was at least 95 times more likely to occur if Ali, the deceased, the applicants and an unknown person were the source of the DNA than if it was Ali and the deceased and two or more unknown individuals and that this ratio provided moderate support for the proposition that the DNA did come from Ali, the deceased, the two applicants and one unknown person.

[139]

99 The oral submission now advanced before us appeared at times to be directed to the proposition that the trial judge had erred by not directing the jury to consider whether the evidence was consistent with an applicant being only an accessory after the fact. No ground of appeal raised this question but it should in any event be rejected, as having no substance. The circumstances in which a trial judge has an obligations to address issues which are not relied upon by the defence at trial were considered in R v Hiep Tan Tran[83] and it is unnecessary to restate the applicable principles. There was no 'real issue', as distinct from a 'remote or artificial possibility',[84] arising from the evidence that either applicant was only an accessory after the fact. There was a deal of circumstantial evidence indicating that the two applicants were present in the deceased's cell at the time that he was murdered and that they left the deceased's cell together. Neither the prosecution nor the defence advanced any hypothesis consistent with one or other of the applicants being only an accessory after the fact. In particular it was never suggested by counsel for either applicant in their addresses to the jury that their clients may have been guilty of some lesser crime by assisting the murderer in cleaning up evidence after the commission of the murder. There were sound forensic reasons to avoid doing so. As I have said, the evidence strongly pointed to the involvement of two persons in the deceased's murder. The jury were likely to conclude that the ligature found in the deceased's cell had been held from behind the deceased whilst the deceased was stabbed numerous times in the chest. Blood was likely to be on the clothing of those who were present in the cell at the time he was stabbed. No attempt had been made to clean the deceased's cell. The footprints of two persons led from the deceased's cell to the cells of the applicants. The clothing and shoes of two persons had been placed in the washing machine. No hypothesis was explored or appears readily discernible to explain why blood would come to be on the clothing and shoes of either of the applicants if they were not present in the deceased's cell at the time of his stabbing but had only assisted the murderer - in some unexplained way - after the murder. Neither was a reasonable hypothesis discernible that the second person may have gone into the deceased's cell after the deceased had been stabbed. Moreover, the question whether the Crown had established that two persons were involved in the deceased's murder had been squarely raised by the defence. A finding of guilt by the jury necessitated the exclusion of the hypothesis that only one person was involved in the deceased's murder as a rational one As neither defence counsel explored the hypothesis that either applicant may have assisted the murderer in cleaning up the evidence after the murder, it was unnecessary that the trial judge pursue such a hypothesis in her charge.[85]

[189]

143 As to the applications for leave to appeal against sentence, the first applicant Berry was sentenced to 23 years' imprisonment with a non-parole period of 17 years being fixed. One ground of appeal in his case is that the sentence is manifestly excessive, particularly taking into account the fact that he was aged 20 years at the time of the offence, his limited criminal history and the long delay between the offence and the imposition of sentence. This ground of appeal has caused me some concern. The sentence, as Redlich JA has stated, can be described as stern. However, is it manifestly excessive? The murder was a cold-blooded execution of another prisoner. Clearly it was premeditated and involved planning. The deceased had a ligature tied around his neck, no doubt to reduce his prospects of calling for help, and was stabbed six times with a knife which had been stolen previously from prison staff. Her Honour observed that there was no evidence of remorse and although the young age of the first applicant justified careful consideration, there was no evidence before her Honour to establish that rehabilitation had commenced in any meaningful way as at the time of sentence, seven years after the offence was committed. The fact that the murder took place in a prison must play considerable weight. Regrettably, all manner of persons from all manner of backgrounds, often aged as young as 18 years to those of advanced age, find themselves incarcerated in the prisons of this State. Prisons should not be places of violence and fear for their inhabitants, nor should they be places where the most violent persons can control the lives of other prisoners. For obvious reasons, offences committed in prisons are often difficult to prosecute. It must be clear to those who exact violence upon others in a prison, that punishment will be severe. In all the circumstances, that factor in particular leads me to conclude that, notwithstanding the young age of the first applicant at the time of the offence, the sentence imposed upon him, although stern, was not manifestly excessive.

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