R. v. Donoghue, 2019 ONCA 534

Case Summary

The appellant was convicted of break and enter of a dwelling house and other offences based primarily on DNA evidence found in a glove discovered at the crime scene. The Crown admitted in an agreed statement of fact that the appellant's DNA was found in the glove but called no expert evidence regarding DNA transfer characteristics or whether the appellant's DNA was the sole profile on the glove. The Court of Appeal found the verdicts unreasonable, holding that the DNA evidence alone was incapable of bearing the burden of proving the appellant left the glove at the scene. The convictions were set aside and acquittals entered.

Court of Appeal for Ontario

Date: 2019-06-24 Docket: C66288

Judges: Brown, Miller and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Leonard Donoghue Appellant

Counsel

Anthony Marchetti, for the appellant

Adam Wheeler, for the respondent

Heard and released orally: June 21, 2019

On appeal from the convictions entered on August 16, 2018 by Justice Feroza Bhabha of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of break and enter of a dwelling house and other offences. The case rested on a glove that was found in a purse on the kitchen counter of the house that was broken into. The glove was deposited by the perpetrator.

[2] In an agreed statement of fact it was admitted that the appellant's DNA was found in the glove. However, the Crown called no expert evidence on the characteristics of DNA evidence or how it may be transferred. Also, there was no evidence on the issue of whether the appellant's DNA was the sole profile on the glove.

[3] The evidence established that the appellant was connected to the glove. The evidence further established that the glove was clearly connected to the commission of the crime. However, standing alone, the DNA evidence led at trial was incapable of bearing the burden of proving that the appellant left the glove at the scene of this break and enter.

[4] Accordingly, we find the verdicts unreasonable. The appeal is allowed, the convictions are set aside and acquittals entered in their place.

David Brown J.A.

B.W. Miller J.A.

G.T. Trotter J.A.