Muamba Mufuta was caught peering down at an unsuspecting woman in a bathroom stall. The only issue at trial was identity. He did not testify at his trial. His sole ground of appeal was whether the verdict was unreasonable: 2015 ONCA 50.

The complainant could not identify the perpetrator, other than by providing a generic description of him as being black with a shaved head. Shortly before the incident occurred, three black men entered the restaurant and ordered food and drinks. They all fit the general description of the voyeur: para 4-5.

After the incident, police seized a partially full bottle of pop from the top of the toilet tank in the washroom stall where the victim had seen the perpetrator. On subsequent testing, the appellant’s DNA was identified and found on the mouth of the pop bottle. A DNA expert testified at trial that forensic examination of the bottle yielded only a single source of DNA. She also testified that Mufuta was the last person to drink from the bottle: paras 6-7.

The restaurant washrooms were cleaned daily, and so the bottle would have been placed there sometime on the day in question. Only one of three scenarios could have occurred: Mufuta was the voyeur, Mufuta left the pop bottle in the bathroom earlier that day, or another man, of similar appearance, carried the pop bottle into the washroom and committed the offence. The trial judge concluded that the latter two scenarios were speculative, unlikely, and totally lacking in evidentiary support: paras 12-13.

On appeal, Mufuta primarily relied on R v Mars, (2006) 206 OAC 387 and R v Wills, 2014 ONCA 178, to argue that the DNA evidence, standing alone, was not capable of supporting the inference that he was the man who was the man seen by the complainant. Further, he argued that the trial judge erred in presuming that the mere presence of his DNA on the pop bottle was highly inculpatory: para 21.

The Court of Appeal upheld the trial judge’s decision. The Court found Mufuta was understating the significance of the presence on DNA, and that it was a powerful piece of evidence linking him to the scene of the crime. Further, while it was the centrepiece of the Crown’s case on identification, it did not stand alone: para 24.

The Court went on to distinguish the case at bar from both Mars and Wills, commenting that their reference was misplaced.

In Mars, the victim heard a knock at his door and observed an unmasked man holding a pizza box. When he opened the door to decline the pizza, three men swarmed into the house. The victim could not identify the man holding the box, but a neighbour saw “three black youths” running away from the house. The pizza box contained three fingerprints, one of which matched that of Mars. However, at trial, it was established that the date of the fingerprint was indeterminable, and that because Mars was white, the neighbour’s evidence effectively excluded him as one of the robbers: paras 28- 32.

In Wills, two men wearing bandannas forcibly entered a home. One of the men attacked one of the occupants with a baton. During the attack, the victim pulled a white bandanna from the assailant’s face. The police later found the white bandanna, and upon testing, the DNA of at least three people was found on it. At trial, a DNA expert testified they were unable to estimate how long the DNA had been on the bandanna, and that it was also possible no DNA could have been left behind by the intruder wearing it. The home occupants could not identify their attackers. While the Court concluded that the inference it was Wills who wore the bandanna could not be based exclusively on the DNA evidence, the inference of guilt was otherwise supported on the facts. Unlike in Mars, there was also no exculpatory description of the assailants: paras 33-39.

After reviewing these cases, the Court concluded that the fact that only Mufuta’s DNA was found on the pop bottle increased the probative force of the DNA evidence, connected him to the scene of the crime, and supported the inference that he left the bottle in the washroom. It also rendered less reasonable any inference that someone other than Mufuta used the pop bottle: para 40.

Further, in contrast to both Mars and Wills, there was evidence that supported the inference that the DNA had been deposited around the time of the offence:

Mufuta was the last person to drink from the bottle.
The bottle was part-full, suggesting recent deposit of the DNA.
Given the washroom cleaning schedule, it had to have been left in the washroom that day.
The pop bottle was in the women’s washroom, a place Mufuta had no right to be.
The bottle was found in the exact stall used by the voyeur [para 41].

The Court found the case to be analogous to the decisions of R v Dewar, 2003 CanLII 48229 (ONCA) and R v Gauthier, 2009 BCCA 24. In Dewar, a pop bottle was found with the accused’s DNA on it, along with his co-accused. The co-accused pled guilty. There was no innocent explanation for the presence of Dewar’s DNA on the bottle in the manager’s office of a burglarized shop. In conjunction with the other facts in Dewar, the trial judge’s reasoning was not speculative and the verdict was not unreasonable: paras 43-44.

In Gauthier, the accused advanced only speculative exculpatory hypotheses for how a beer bottle with his fingerprint on it was found on the victim’s bed. Again, in conjunction with the other available evidence, the only reasonable explanation was that Gauthier had been the intruder: paras 45-46.

Ultimately, the Court of Appeal found that the trial judge expressly considered whether Mufuta’s guilt was the only reasonable inference to be drawn from the facts established on the whole of the evidence: R v Cooper, [1978] 1 SCR 860. There was no basis to interfere with the trial judge’s conclusion. On the totality of the evidence, there was no evidentiary foundation for any explanation of the presence of a partially-consumed pop bottle, bearing Mufuta’s DNA, in the exact washroom stall used by the perpetrator, other than that he was the voyeur. Mufuta’s appeal was dismissed.