Damian Hodge Appellant v The Queen Respondent
| Jurisdiction | British Virgin Islands |
| Judge | BAPTISTE, J.A. |
| Judgment Date | 10 November 2010 |
| Neutral Citation | VG 2010 CA 11 |
| Judgment citation (vLex) | [2010] ECSC J1110-2 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | Hcrap 2009/001 |
| Date | 10 November 2010 |
IN THE COURT OF APPEAL
The Hon. Mde. Ola Mae Edwards Justice of Appeal
The Hon. Mr. Janice George-Creque Justice of Appeal
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
Hcrap 2009/001
Mr. Paul Webster, QC for the appellant
Ms. Grace Henry-McKenzie, Director of Public Prosecutions, [Ag.] and Ms. Christilyn Benjamin, Senior Crown Counsel for the respondent
Criminal appeal - Appeal against conviction - Forensic evidence - DNA evidence - Attempted robbery - Aggravated burglary - Assault occasioning actual bodily harm - Buccal swabs taken from cheek - Break in the chain of custody - Safety of verdicts and lurking doubt - Failure to direct on evidence of expert witness - Appellant's defence not put adequately and fairly to jury - Defendant not asked whether he objected to evidence - Section 63(1) of the Evidence Act of the Virgin Islands (No. 15 of 2006).
The appellant, Damian Hodge, appealed against his conviction on counts of attempted robbery, aggravated burglary and assault occasioning actual bodily harm. The prosecution relied on forensic evidence in the form of DNA to link the appellant to the crime. The appellant denied committing the offences and also denied that buccal swabs were used to take DNA samples from his cheek. The prosecution's case is that, on the night of 17 th March 2007, the appellant along with another boarded the yacht Spindrift II, in which Mr. Stephen Martinez was asleep in a lower cabin. One of the assailants struck Mr. Martinez on his right cheek and demanded money, claiming that he had a gun in his possession.
He then held Mr. Martinez in a choke hold, while the other assailant held on to Mr. Martinez's feet. Although Mr. Martinez was injured, he did not bleed. In the ensuing struggle, Mr. Martinez struck the assailant who had held him around the neck with a winch handle which connected to the side of his head. The assailants fled and escaped into a waiting dinghy. A blood trail led from where Mr. Martinez had struck the assailant to where he had exited the boat. The appellant appealed on the following grounds: (1) that the learned judge erred in admitting into evidence the evidence bag containing the box with the buccal swabs; (2) that the appellant's defence was not fairly or adequately put to the jury; (3) that the learned judge erred in allowing the evidence of acting Sergeant George James as it was prejudicial and of no probative value; (4) that the verdict of the jury cannot be supported having regard to the evidence and hence, the verdict is unsafe.
Held: dismissing the appeal against conviction and affirming the appellant's conviction:
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1. That there was no break in the chain of custody leading to the DNA Laboratory and the testing of the DNA sample. Proof of continuity is not a legal requirement and gaps in continuity are not fatal to the prosecution's case unless they raise a reasonable doubt about the exhibit's integrity. In the absence of a specific requirement or necessity to call as witnesses all persons who may have had possession of an item during the chain of custody, it is a question of fact for the jury whether or not to doubt the accuracy of DNA results because of the possibility that security or continuity of items was not maintained. Further, the swab box bore sufficient information including the appellant's name and initials of witnesses which assisted them in making the identification. Also, it is not fatal to the admissibility of the evidence that the judge did not ask the unrepresented defendant whether he objected to it. Thus, the swab box was properly admitted into evidence and there was no error on the part of the learned judge in so admitting it.
R v Larsen 2001 BCSC 597 applied; R v Stafford [2009] QCA 407 applied.
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2. That the jury would have been left in no doubt as to the appellant's defence. The appellant's defence was two-fold: that is, he did not commit the offences and the police did not take buccal swabs from him. In light of the specific references made to the defence case in the learned judge's summation, the appellant's defence was carefully, fairly and adequately put to the jury. While a direction to the jury that they could only convict if they were sure that the police took swabs from the appellant and forwarded them to the analyst would have been desirable, its absence does not lead to the conclusion that the appellant's defence was not put fairly and adequately to the jury.
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3. The evidence of Sergeant James was relevant as it was capable of leading to the conclusion that the appellant had a head injury which he was trying to conceal. Given the complaint of Mr. Martinez, coupled with the DNA evidence, the evidence of Sergeant James was more probative than prejudicial and any prejudicial effect is outweighed by its probative value.
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4. It was for the jury to evaluate the evidence before them and none of the matters urged upon the court by counsel for the appellant provides any ground for thinking that the conviction is unsafe. Further, having assessed all the facts and circumstances, there is nothing from the general feel of the case as experienced by this court to engender a lurking doubt about the conviction or uneasiness about whether an injustice has been done.
R v Criminal Cases Review Commission Ex p. Pearson [2000] 1 Cr. App. R. 141 followed; Dookran v Trinidad and Tobago [2007] UKPC 15 followed; R v Litchfield [1997] EWCA Crim 3290 followed.
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5. The omission to give an expert direction and to direct the jury on how to treat the evidence of an absent witness did not render the trial unfair. The purpose of expert evidence of fact (e.g. observation, test, calculation) and opinion is to assist the jury in areas of science or other technical matters upon which they cannot be expected to form a view without expert assistance. Nevertheless, the ultimate decision on the matters about which the expert has expressed an opinion remains one for the jury and not for the expert. It is always for the jury to decide the facts in light of the evidence as a whole. Whilst they must pay due regard to the expertise of an expert witness, they are neither obliged to agree with him, nor obliged to share doubts or reservations expressed by him. The directions on the defence were quite adequate. This was a strong case against the appellant and ample evidence on which the jury was entitled to convict him.
This is an appeal by Damian Hodge against his conviction on counts of attempted robbery, aggravated burglary and assault occasioning actual bodily harm. The prosecution relied on forensic evidence in the nature of DNA to link the appellant to the crime. The appellant denied committing these offences and denied that buccal swabs were taken from his cheek.
The prosecution's case is that on the night of 17 th March 2007 two assailants boarded a yacht, the Spindrift II in which Mr. Stephen Martinez was asleep in a lower cabin while his female companion was on deck. One of the assailants struck Mr. Martinez on the right cheek and demanded money. The assailant claimed that he had a gun and also held Mr. Martinez around the neck in a choke hold. The other assailant tried to hold on to Mr. Martinez's feet. Though Mr. Martinez was injured he did not bleed. In the ensuing struggle Mr. Martinez hit the assailant, who had held him around the neck, with a winch handle which connected to the side of his head. Both assailants escaped in a waiting dinghy.
The police investigated the matter and Sergeant George Mason collected blood samples from the deck of the yacht, placed them in five swab boxes, sealed and labeled them and kept them in his possession. The five swab boxes were later handed over to Constable Tittle who took them to DNA Labs International in Miami on 2 nd July 2007 to be tested. On 19 th August 2007 Sergeant Mason received a parcel from Fedex Courier Services which contained the five swab boxes he had handed over to Constable Tittle. These were tendered in evidence as exhibits.
On 17 th September 2007 the appellant was arrested. He was told of the investigations and was invited to give samples for DNA testing to which he consented. Constable Mary Phillip took swabs from the appellant's cheek, placed them in a swab box, wrote the appellant's name on the box and initialed the box. She sealed the box in the appellant's presence and requested that he place his initials on the box which he did. Constable Mary Phillip wrote the appellant's name and date on the evidence bag, placed the swab box inside the bag and sealed it in his presence. She then handed the evidence bag and its content, to Sergeant Mason who secured it in an iron safe in the exhibit room at the Road Town Police Station.
On 20 th September 2007 Sergeant Mason handed over the sealed evidence bag containing the swab box to Constable Ballantyne who on that same day took them to the DNA Labs International. On 8 th November 2007 Sergeant Mason received a sealed package from FedEx Courier Services which contained the same swab box he had handed over to Constable Ballantyne. This was tendered into evidence through Constable Mary Phillip as exhibit MP1.
Mr. Kevin Noppinger, the Director of DNA Labs International conducted DNA testing on the swabs which were collected from the Spindrift II and determined that the stain on each swab was blood which came from a male individual. Mr. Noppinger testified that on 20 th September 2007 a buccal sample bearing the name Damian Hodge was received by the lab in a sealed box. He assigned a case number and item number from the laboratory to it following which he cut a portion of the sample for DNA testing. He then sealed the remainder of the swab in the said box in which it was received and returned it to the police. He took a sample for DNA profiling....
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Clement Reid v R
...that the sample which was examined by the analyst was that which was taken from [the defendant]“ (adopting a dictum of Baptiste JA in Damian Hodge v R, HCRAP 2009/01, judgment delivered 10 November 2010, a decision of the Court of Appeal of the British Virgin Islands). In the instant case, ......