R. v. Doan, 2013 BCCA 123
[28] Observing that the judge’s only findings concerning the DNA evidence and the possibility of contamination are those mentioned at his paras. 405 and 406, set out above, Mr. Doan contends that the trial judge did not explicitly consider the evidence of Dr. Waye. However, as we have said, on our reading of Dr. Waye’s examination, we do not agree he opined that it was “likely” the DNA on all three pieces of duct tape came there by secondary transference. Indeed, his evidence was replete with conditional statements and was framed in the hypothetical.
[29] Nor can one say the judge did not appreciate the tenor of Dr. Waye’s evidence, for the judge’s own questioning of Dr. Waye indicates he was very much alive to this issue. In the end result, however, the judge’s reasons on this point indicate that he simply did not agree with the hypothesis put by defence counsel.
[30] For convenience, we repeat the judge’s findings of fact on this point:
[405] ... The existence of her DNA on Exhibit 369 where it was found and that of Xiao Cheng on Exhibit 213 cannot be explained in any way other than that she and he were bound at the same time, unless I were to accept that the DNA of both was transferred there from other DNA-bearing sources.
[406] While the accused sought to have me reach that conclusion, I am satisfied that to do so would be to elevate scientific theories of the possibility of transfer to a likelihood of occurrence that is not in keeping with either common sense or the totality of the evidence in this case, including the existence of the many “zap straps” in the garbage as well as the pieces of plastic sheeting.
[Emphasis added.]
[31] On our reading, the judge just did not accept the theory of accidental transference. It is well known, as we have stated in Mr. Tse’s appeal, that we must give deference to the trial judge’s factual conclusions. We may only interfere with a finding of fact such as this one when the judge has made a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The preceding discussion illustrates that he did not make such an error. There was a body of evidence that amply supported his conclusion that the DNA on the tape came directly from the donor and not by accidental transference. Accordingly, we see no basis to interfere with the judge’s factual conclusions.
[32] Mr. Doan and Mr. Soux also contend that the trial judge erred by expecting the defence to prove the likelihood of accidental transference of DNA onto the duct tape. He says the judge’s reasoning, at paras. 405–407, replicated above, required the accused to prove a likelihood of occurrence that was inconsistent with the presumption of innocence.
[33] We do not agree. It appears to us that the judge considered the alternative explanation that the DNA was deposited by accidental or secondary transference to the duct tape in the pattern found by the forensic examiners, because that was the theory posited by the defence. He then concluded that accidental transference was improbable. His conclusion on the theory advanced by the defence does not demonstrate a reversal of the burden of proof.
[34] We would not accede to the submission the judge impermissibly reversed the onus of proof.
[35] Mr. Doan and Mr. Soux also contend that the judge failed to consider or properly weigh the evidence of Dr. Waye and failed to give sufficient, or any, reasons for rejecting his evidence. This submission relies upon an over-reading of Dr. Waye’s evidence, in our view. While Dr. Waye did proffer the single statement that transference from a toothbrush was “likely”, a review of all his evidence reveals his view of the conditional nature of the possibility of secondary transference to all three pieces of DNA-bearing duct tape in the patterns found by forensic examiners. On balance, his entire evidence can only be seen as equivocal, and not diametrically opposed to that of Ms. Saul.
[36] As discussed already, regardless of the risk of transference, the trial judge resolved the issue of transference on the basis that two pieces of duct tape contained, in total, four deposits of Ms. Pan’s DNA, and one piece contained three deposits of Mr. Cheng’s DNA. He considered too speculative the possibility of accidental transference of DNA in the precise pattern that is entirely consistent with the complainants’ evidence of having had their mouths taped. That was a finding of fact that was available to him on the evidence, and which, indeed, commends itself to us. It cannot be said that the judge erred in so finding.
[37] Nor do we agree the judge was required to deal more explicitly with the testimony of Dr. Waye, or to state that he preferred the evidence of Ms. Saul to that of Dr. Waye. On our reading of the reasons for judgment, the judge was alert to the competing theories. He decided that the defence theory of accidental transference was speculative. There was no need for him to explain in greater detail than he did, his reason for rejecting a theory he said was speculative.
[38] It follows we see no basis to interfere with the judge’s conclusion that the DNA found on pieces of duct tape came directly from the complainants. For this reason, and the reasons given in the other appeals, we find no basis upon which to interfere with the convictions of Mr. Doan for confinement with intent to ransom of Ms. Pan, Mr. Li and Mr. Cheng, and extortion of the three complainants.
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