DNA doesn’t prove firearm possession

Phillip Sciamonte’s DNA matched the DNA on a handgun and Stephen Whittaker’s DNA matched what was found on a sock the handgun was in.

But DNA alone did not prove that either man was in possession of a Glock 20 10-millimetre handgun on or before 7 September 2008.

Both men were found not guilty of possessing an unlicensed firearm – an offence that could have resulted in the mandatory minimum 10-year sentence.

A Grand Court jury heard last month that Mr. Whittaker was in the back seat of a truck stopped by police after some traffic congestion.

He and the driver were searched and nothing was found on either of them, but under the seat where Mr. Whittaker had been sitting was a sock. Inside the sock was a gun and magazine.

Police obtained buccal swabs from both men plus the owner of the vehicle and another man who had been a passenger earlier that evening.

A DNA profile identical to Mr. Whittaker’s was identified on the cuff of the sock in which the gun was contained. Forensic DNA specialist Jonathan Faris said the chances that an unrelated person in the Cayman Islands could have contributed that profile were one in 64 trillion.

A different profile was found on the gun itself. Mr. Faris said the partial DNA profile he obtained from the gun matched the profile of Phillip Sciamonte. The probability of an unrelated person with a matching profile was one in 240 million.

Comparison of the gun and sock profiles with the profiles of other persons connected with the truck excluded them. Their ‘genetic information’ was not present, Mr. Faris explained.

On behalf of Mr. Sciamonte, Attorney Nicholas Dixey put suggestions to Mr. Faris and the scientist agreed that the mere presence of a contributor’s DNA on an object was not conclusive proof that there was direct contact with the object.

He also agreed that DNA material transferred from a person onto an object can then be transferred onto another object. Mr. Faris emphasised there are variables that would affect the transfer.

Re-examined by Crown Counsel Tricia Hutchinson, he said those variables would include the surface of the object, whether it was rough or smooth; the length of time of contact; the proportionate area of contact and how lightly an object was held.

After Ms Hutchinson closed the case for the prosecution, Mr. Dixey submitted in the absence of the jury that there was no case for Mr. Sciamonte to answer. The only evidence against him was the DNA.

Mr. Dixey said possession of an item means knowledge of it, custody and control. There was no evidence of Mr. Sciamonte having custody or control of the firearm.

‘The Crown is inviting the jury to speculate as to how his DNA profile appeared on the firearm. The DNA expert cannot say why, where, when or how the transfer took place,’ he argued. ‘Mere presence of the profile does not prove contact with the object.’

Assuming it was Mr. Sciamonte’s DNA, there was no evidence whatsoever how it got on the gun, Mr. Dixey pointed out. It was for the Crown to disprove various scenarios: the defendant might have been hit in the face with it; he might have been handed it and dropped it as soon as he realised what it was.

He summed up: ‘DNA is capable of assisting the Crown’s case but it cannot tell the story by itself…. The significance of DNA depends largely on other evidence and may be of considerable significance – on its own, it may not take the case very far.’

Chief Justice Anthony Smellie asked, ‘When does contact become possession?’ He indicated he was satisfied with the statistical calculation of the probability that the DNA matched that of Mr. Sciamonte. But his concern was the elements of the offence itself.

Ms Hutchinson called it a borderline case. She agreed there might be some difficulty in terms of proving control.

The Chief Justice concluded: ‘I think the jury could be invited to say there could have been contact, but it would be pure speculation to say how that contact occurred.’

The jury was then taken back into court and the Chief Justice explained what had happened in their absence. He said he had concluded there was insufficient evidence to call on Phillip Sciamonte to answer the charge against him.

Statistical calculation may have allowed jurors to conclude that Mr. Sciamonte had contact with the firearm at some stage, but that by itself was insufficient for them to conclude in law that he was in possession of it.

In the circumstances, the jury had to accept his ruling and return a not guilty verdict.

Ms Hutchinson then reviewed the evidence against Mr. Whittaker and Defence Attorney Scott Wilson commented on it, saying jurors must have a reasonable doubt.

His client’s DNA was not on the gun, he emphasised. ‘If you’re sure Mr. Whittaker’s DNA was on the sock, you have to be sure of the circumstances in which it came to be on the sock,’ he said.

One of the officers who stopped the truck had said Mr. Whittaker was sweating profusely. ‘That might be an innocent reason why his DNA was on the sock,’ Mr. Wilson suggested.

He also questioned whether the officer who patted the men down was wearing gloves at the time or if he was bare-handed. If the officer was wearing gloves, could the defendant’s DNA get onto the gloves and then onto the sock when the same officer later searched the truck while wearing those gloves?

The officer himself was adamant that he did not have gloves on when he patted down the occupants of the truck. His partner could not recall whether the searching officer was wearing gloves for the pat-downs, Mr. Wilson noted.

He emphasised the possibility of Mr. Whittaker’s DNA being on the sock by secondary transfer.

‘Mere presence of DNA is not evidence of knowledge, custody and control, merely evidence that he touched that sock or touched something else that touched that sock,’ he said.

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