Michael Scott Wallace v R Ca
| Jurisdiction | New Zealand |
| Judge | Hammond J |
| Judgment Date | 03 March 2010 |
| Neutral Citation | [2010] NZCA 46 |
| Docket Number | CA590/2007 |
| Court | Court of Appeal |
| Date | 03 March 2010 |
[2010] NZCA 46
Glazebrook, Hammond and Ellen France JJ
CA590/2007
IN THE COURT OF APPEAL OF NEW ZEALAND
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.
G J King and C W J Stevenson for Appellant
J C Pike and N P Chisnall for Respondent
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A The application to adduce further evidence is dismissed.
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B The appeal against conviction is dismissed.
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C The appeal against sentence is dismissed.
(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] |
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.
Mr Wallace was subsequently sentenced to life imprisonment, with a minimum term of imprisonment of 18 years. 1
Mr Wallace now appeals against his conviction and sentence.
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:
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(a) The jury was misled as to the strength of DNA evidence adduced at Mr Wallace's trial.
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(b) The jury was also misled as to the strength of fingerprint evidence adduced at his trial.
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(c) Trial counsel (not Mr King) failed to adequately represent Mr Wallace.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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”.
This was a circumstantial evidence case. The Crown relied, broadly, on the following evidence.
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.
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.
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.
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 retrieved from the river at Cardiff, where Mr Wallace was seen. Ms Brauer's diary was located, with Mr Wallace's fingerprint on a page.
Apart from the fingerprint evidence, and the uncontested DNA evidence on the cigarette butts, the Crown led certain further DNA evidence. It is central to this appeal, and we will deal with it in much greater detail later in this judgment.
There was Crown evidence relating to timings which was consistent with the apparent movements of the Hilux.
Mr Wallace was said to have been identified before the murder travelling with a female consistent with Ms Brauer's appearance, and leaving Lucy's Gully alone.
The defence put the Crown to proof. Mr Wallace did not give evidence. The defence argument was that the circumstantial evidence was not strong enough for a conviction.
Easily the most important uncontested fact from the defence perspective — which was rightly strongly advanced by Ms Hughes QC — was that no forensic evidence whatsoever was found in the Hilux which was linked to or referable in any way to the deceased: there were no hairs, no fingerprints, no DNA, nothing at all relating to Ms Brauer.
We need now to traverse in greater detail the Crown DNA evidence which is in issue...
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Subject Index
.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154R vVan der Peet(1996) 2 SCR507 . . . . . . . . . . . . 17R vWallace [2010] NZCA46. . . . . . . . . . . . . . . . 164R vWalsh (1989) 91Cr App R161 . . . . . . . . . . . 149R vWatt [2007] QCA286. . . . . . . . . . . . . . . ......
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Case Commentaries
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