Michael Scott Wallace v R Ca

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHammond J
Judgment Date03 Mar 2010
Neutral Citation[2010] NZCA 46
Docket NumberCA590/2007

[2010] NZCA 46

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Hammond and Ellen France JJ

CA590/2007

BETWEEN
Michael Scott Wallace
Appellant
and
The Queen
Respondent
Counsel:

G J King and C W J Stevenson for Appellant

J C Pike and N P Chisnall for Respondent

Application to adduce further evidence — appeal against conviction and sentence — Wallace convicted of murdering German hitchhiker Birgit Brauer — whether the jury was misled as to the strength of the DNA and fingerprint evidence — whether Low Copy Number DNA evidence was reliable — whether Wallace received adequate representation — whether there should have been a change of venue due to pre-trial publicity.

Held: The offending had received nationwide publicity and as such it was not a suitable case for a change of venue. It was always open to W to give evidence even against advice of his counsel. It was a firmly conducted defence with extensive cross-examination of the fingerprint evidence. The new evidence regarding the fingerprints and points of identification was not sufficiently cogent to allow its admission post-trial let alone as a basis for a new trial. The DNA challenge was an exercise in law reform with the objective being to outlaw the admissibility of LCN DNA evidence. The Court could never be expected to undertake such an exercise on what was no more than preliminary affidavit evidence and without cross-examination. W would have to show that the evidence advanced at trial should never have been legitimately advanced. Blanket attacks on the science were not sustainable. The proposition that LCN DNA analysis was unreliable had been rejected by the Court of Appeal in R v Lepper. The trial Judge had given adequate directions to the jury regarding the weight they should accord to the evidence. It was a ferocious attack, W had a lengthy criminal history and there were no mitigating factors. The sentence was well within the range available. Application to adduce further evidence declined. Appeal against conviction and sentence dismissed.

JUDGMENT OF THE COURT
  • A The application to adduce further evidence is dismissed.

  • B The appeal against conviction is dismissed.

  • C The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction

[1]

The general narrative

[5]

The trial evidence

(i) The Crown evidence

[16]

The vehicle

[17]

Places

[18]

Personal items

[20]

Forensic evidence

[21]

Timings

[22]

People

[23]

(ii) The defence evidence

[24]

The DNA evidence at trial

[26]

The evidence

[27]

The defence case with respect to this evidence at trial

[34]

The Crown use of the now contested DNA evidence at trial

[37]

The Judge's summing up on the DNA evidence at trial

[41]

The overall position at trial

[42]

The appellant's grounds of appeal: something old, something new

[46]

Counsel incompetence

[53]

Change of venue

[54]

Not giving evidence

[57]

Not following instructions

[59]

Failure to challenge the Crown evidence

[60]

The fingerprint evidence

[63]

The impugned DNA evidence

Introduction

[77]

What is being contended for here?

[89]

The particular problem in this case

[101]

The implications of Reed & Garmson for this case

[106]

Application of the legal standard for fresh evidence

[113]

In any event: a miscarriage of justice?

[116]

The sentence appeal

[119]

Conclusion

[128]

Introduction
1

Following his trial before Cooper J and a jury in the High Court at New Plymouth the appellant, Michael Scott Wallace, was found guilty of murdering Ms Birgit Brauer.

2

Mr Wallace was subsequently sentenced to life imprisonment, with a minimum term of imprisonment of 18 years. 1

3

Mr Wallace now appeals against his conviction and sentence.

4

The conviction appeal is pursuant to s 385 of the Crimes Act 1961. It is claimed that a substantial miscarriage of justice occurred in the following three respects:

  • (a) The jury was misled as to the strength of DNA evidence adduced at Mr Wallace's trial.

  • (b) The jury was also misled as to the strength of fingerprint evidence adduced at his trial.

  • (c) Trial counsel (not Mr King) failed to adequately represent Mr Wallace.

The general narrative
5

Ms Brauer, a 28 year old German national, arrived in New Zealand in February 2005 on a one year work permit with the intention of backpacking around the country. She was beaten and stabbed to death at Lucy's Gully near New Plymouth in September 2005.

6

In June 2005, Mr Wallace had been contracted to cut firewood in Foxton. He was given the use of a 1988 Toyota Hilux Surf (the “Hilux”). In August 2005 he disappeared from his job with this vehicle.

7

On 20 September 2005 Ms Brauer had left Wanganui intending to hitchhike to the Taranaki region. She obtained a ride to Waitotara where she was seen getting into a four wheel drive vehicle. This vehicle then drove towards Waverley, where it was captured on a security camera. This CCTV footage revealed the vehicle to be a mid-late 1980's Toyota Hilux Surf, custom fitted with bull-bars and spotlights.

8

After Ms Brauer had been uplifted in Waitotara, there were further sightings of a vehicle consistent with the Hilux's description near Cape Egmont lighthouse, and parked near Lucy's Gully, about 100 metres from a car park there. This was shortly after 1.00pm. The next sighting of a vehicle matching the description of the Hilux occurred between 1. 00 and 1.30pm. It was being driven away from Lucy's Gully towards State Highway 45 by an unaccompanied male driver.

9

At about 5.00pm, a jogger found the body of Ms Brauer, which had been dragged some 40 metres into the bush. The starting point of the drag trail was where the vehicle matching the description of the Hilux had been sighted at 1.00pm. Ms Brauer had been struck at least eight times to the head and body with a blunt object. While the pathological evidence at trial was that the head injuries sustained by the deceased would have been sufficient to cause death, the proximate cause of Ms Brauer's death was a knife wound to the heart.

10

Later that day, a vehicle consistent with the Hilux's description was seen at the Waingongoro River near a site referred to as “Cardiff” during the trial. Mr Wallace was linked to Cardiff by four witnesses, and DNA recovered from cigarette butts recovered there. The police later found items that belonged to Ms Brauer, including her mobile phone battery, behind a water pump-house at that site.

11

The river at Cardiff was searched. A solid metal bar was found. It was later identified as a manufacturer-supplied item for Hilux vehicles. The pathological evidence at trial was that the blunt object wounds on the deceased were consistent with the metal bar having been used to assault Ms Brauer.

12

At another site on Lake Rotokare, various items belonging to Ms Brauer had been hidden, including her backpack, sleeping bag, cellphone and diary. A latent fingerprint in the diary was later identified as being that of Mr Wallace.

13

Mr Wallace was seen in a Hilux surf motor vehicle at Lake Rotokare on the morning of 23 September. That Hilux was later found abandoned in the Ohau River near Levin on 26 September 2005.

14

On 2 October Mr Wallace unlawfully took a Nissan motor vehicle from a Levin address. When that vehicle drove past a police cordon on 8 October, a sustained pursuit commenced. Mr Wallace ultimately crashed that vehicle and ran away from it. He eventually heeded challenges from armed police to surrender. After he was handcuffed and read his rights, Mr Wallace allegedly said, “You should have shot me”. 2

15

Mr Wallace was taken to the Levin police station. While speaking to police in custody he implied that, as a consequence of having done something comprising a “screw up”, he had attempted to take his own life. He expressed an ongoing desire to die, and admitted to taking methamphetamine. He was equivocal regarding whether he might have picked Ms Brauer up. He said that “he could believe” that he had killed Ms Brauer, but that it had “not been with a machete”.

The trial evidence
(i) The Crown evidence
16

This was a circumstantial evidence case. The Crown relied, broadly, on the following evidence.

The vehicle
17

There was the linkage of Mr Wallace to the Hilux. This was a combination of identification, the owner's evidence, and the circumstances of the arrest when Mr Wallace fled.

Places
18

There was the linkage of the Hilux to all the relevant sites. Mr Wallace was linked to the Cardiff site by DNA on the cigarette butts which was 10 million million times more likely to have come from Mr Wallace than from another person selected at random from the general populace. This DNA evidence was not challenged on appeal.

19

In particular, there was the linkage of the Hilux to the place where the body was hidden, and to the places where the items were hidden behind the pump-house, and one of the murder weapons disposed of. None of Ms Brauer's belongings were found with or near her body. They had obviously remained in her killer's vehicle.

Personal items
20

Mr Wallace was linked to Ms Brauer's personal effects. There was the cellphone battery at Cardiff, the cellphone at Rotokare and sundry items, such as earplugs and coins from international destinations that Ms Brauer had visited, deposited at those scenes. Mr Wallace was seen by two witnesses at Rotokare. The Crown case was that it was beyond coincidence that different persons disposed of these items: that Mr Wallace had found the items disposed of at Cardiff and that another person discarded the murder weapon. A metal bar, consistent with the murder weapon, was from a Hilux vehicle and...

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