Byrne v R

1. [1]

   JOHNSON J: By Notice of Appeal filed on 6 April 2020, the Applicant, Frederick Darryl John Byrne, appeals against his conviction at the Lismore District Court on 11 April 2019 following a Judge-alone trial for an offence of aggravated break and enter and commit a serious indictable offence (armed robbery) contrary to s.112(2) Crimes Act 1900 and two offences of detaining a person with the intention of obtaining an advantage whilst in company contrary to s.86(2)(a) Crimes Act 1900.

2. [2]

   The Applicant elected to be tried by Judge alone for the purpose of s.132 Criminal Procedure Act 1986. The Crown consented to this course.

3. [3]

   The trial of the Applicant proceeded before her Honour Judge Baly SC between 3 and 8 April 2019 with her Honour delivering verdicts and publishing reasons for those verdicts on 17 April 2019.

4. [4]

   On 28 June 2019, the Applicant was sentenced by her Honour to an aggregate term of imprisonment for seven years comprising a non-parole period of four years and seven months commencing on 9 July 2018 and expiring on 8 February 2023 with a balance of term of two years and five months commencing on 9 February 2023 and expiring on 8 July 2025.

The Sole Ground of Appeal

1. [5]

   The Applicant appeals against conviction upon the basis that the verdicts are unreasonable and/or cannot be supported having regard to the evidence: s.6(1) Criminal Appeal Act 1912.

2. [6]

   No appeal is brought with respect to sentence.

3. [7]

   As the Applicant’s ground of appeal does not involve a question of law alone, he requires leave to appeal against conviction: s.5(1)(b) Criminal Appeal Act 1912.

Charges Contained in the Indictment

1. [8]

   Count 1 in the indictment alleged that the Applicant, on 12 November 2017, at Casino in the State of New South Wales, did break and enter the Club House of the Casino Golf Club, and in the building committed a serious indictable offence (armed robbery) in circumstances of aggravation (being in company with other persons) contrary to s.112(2) Crimes Act 1900.

2. [9]

   Count 2 alleged that the Applicant, at the same time and place, detained Shawn Gardner without his consent, with the intention of obtaining an advantage (stealing property) whilst the Applicant was in the company of other persons contrary to s.86(2)(a) Crimes Act 1900.

3. [10]

   Count 3 alleged that the Applicant, at the same time and place, detained Mitch Lavelle without his consent with the intention of obtaining an advantage (stealing property) whilst the Applicant was in the company of other persons contrary to s.86(2)(a) Crimes Act 1900.

Brief Overview of Crown and Defence Cases at Trial

1. [11]

   On Sunday, 12 November 2017, Shawn Gardner and Mitch Lavelle were employees of the Casino Golf Club (“the Club”). At about 9.00 pm that evening, the two men were in the process of securing the premises for the night. In accordance with standard procedure, they contacted a private security firm which arranged for a mobile security officer, Stephen Walker, to attend and escort the staff members to their vehicles.

2. [12]

   As the employees continued their duties inside the Club, a group of five people forced entry into the Club by breaking a glass door with a rock. The five persons were alleged to be all male and of Aboriginal descent. They were observed to be carrying weapons including a machete and an iron bar. The robbers were wearing gloves and used various forms of clothing to cover their heads and faces.

3. [13]

   Mr Gardner and Mr Lavelle were forced to the floor and the robbers used cable ties to bind their hands and feet. One of the robbers took the phone and wallet belonging to Mr Gardner. They also demanded access to the safe and the ATM. As that was occurring, Mr Walker arrived and approached the front door. Two of the robbers attempted to leave the Club so as to get to Mr Walker, but before they could do so, he retreated to his vehicle and departed.

4. [14]

   The robbers left shortly thereafter and were seen running through the Club towards an area known as the Wetlands. Mr Gardner and Mr Lavelle were able to free themselves from the cable ties and called police.

5. [15]

   Mr Gardner’s wife was driving nearby and learned of the robbery. Using a mobile phone application, she was able to locate Mr Gardner’s phone and direct the police who located the phone. Later, police also found Mr Gardner’s wallet and two packets of cable ties in a paddock. Scattered in the paddock, near to the phone, were a number of items of clothing. It was the Crown case that this clothing had been worn by the robbers in the commission of the offences with the robbers thereafter discarding them in the paddock and changing into other clothes before making good their escape.

6. [16]

   The clothing located in the paddock was seized by police and was subjected to forensic testing. DNA profiles were found on the clothing. The Applicant’s DNA profile either matched, or could not be excluded as a match, to profiles found on nine items of clothing. That clothing which included shoes, pants, t-shirts and a hooded jumper, were said to constitute a “complete outfit”.

7. [17]

   The DNA profile of another male, Christopher Donahue (“Donahue”), was located on several items. Investigations revealed that Donahue lived in the Kempsey area. A car linked to Donahue had been photographed leaving Kempsey in the afternoon of 12 November 2017 and was detected in Casino later that afternoon. The same vehicle was captured returning to Kempsey on the morning of 13 November 2017.

8. [18]

   The Applicant did not give evidence at the trial.

9. [19]

   Mrs Helen Roebuck, forensic biologist, gave evidence in the defence case concerning DNA analysis. Reference will be made to her evidence later in this judgment.

10. [20]

    Counsel for the Applicant at the trial argued that the case against him was a circumstantial one based principally, if not solely, on the DNA evidence relating to the clothing that was located in the paddock. Counsel for the Applicant submitted that the DNA evidence did not establish that the Applicant had worn any or all of the items. If the evidence established that the Applicant had worn any of the items, it was submitted that the Court should not be satisfied that he had done so at the time of the charged offences.

11. [21]

    It was argued for the Applicant that neither the CCTV footage from the Club nor the testimony of the three witnesses from the Club who had given evidence established that the clothing found had been worn by a single robber. It was argued that, whilst the clothing could have been worn as a single complete outfit, there was no evidence that it was worn together as such an outfit and, even if the items were so worn, it was argued that there was insufficient evidence to establish that the Applicant was the wearer.

The Sole Ground of Appeal that the Verdicts are Unreasonable and/or Cannot be Supported Having Regard to the Evidence

1. [22]

   An appeal against conviction under s.5 Criminal Appeal Act 1912 from a Judge-alone trial is not an appeal by way of rehearing: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [48].

2. [23]

   The principles to be applied by this Court on an appeal against conviction from a Judge-alone trial, where it is contended that the verdicts were unreasonable or cannot be supported by the evidence, were summarised by this Court (Bathurst CJ, McCallum and N Adams JJ) in Bell v R [2017] NSWCCA 207 at [19]-[27]:

3. [24]

   In Hopgood v R [2019] NSWCCA 246, with the concurrence of Price and Lonergan JJ, I said at [47] with respect to an appeal from a Judge-alone trial:

4. [25]

   The Court is to apply the well-known test stated by the High Court of Australia in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 and reiterated in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14], [22].

5. [26]

   In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J expressed the test for an intermediate appellate court (when considering whether the convictions sustained below were ‘unsafe or unsatisfactory’) in the following terms at [113]:

6. [27]

   The High Court in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke v The Queen on the one hand and in M v The Queen on the other. The plurality stated in Pell v The Queen at [45] that “to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence” so that “Libke did not depart from M.”

7. [28]

   As will be seen, the reasons of the trial Judge in this case are of particular assistance. There is no ground of appeal asserting error under the second or third limbs of s.6(1) Criminal Appeal Act 1912. No challenge is made to her Honour’s intermediate findings of fact with the principal argument for the Applicant being that the ultimate finding of guilt on each count was not open so that her Honour must have acquitted the Applicant on each count.

Evidence at the Trial

1. [29]

   The task of the Court on the appeal is to consider the evidence adduced at the trial to determine whether the verdicts of guilty were unreasonable or not supported by the evidence. As this was a Judge-alone trial, the Court should have regard, as well, to the careful and detailed reasons of the trial Judge.

2. [30]

   Before turning to her Honour’s reasons, I will mention the most pertinent evidence including parts of the evidence of police officers and the expert opinion evidence concerning DNA adduced at the trial in the Crown and defence cases. Further reference will be made to these parts of the evidence when the submissions of the parties are considered later in the judgment.

3. [31]

   The evidence of Mr Gardner, Mr Lavelle and Mr Walker was summarised in the trial Judge’s reasons and those findings were not challenged in this Court. It is not necessary to set out the details of their evidence at this point of the judgment.

4. [32]

   Detective Senior Constable Rohan Light was the officer-in-charge of the investigation. He gave evidence concerning the gathering of the items of clothing from the paddock and other aspects of the investigation including the identification of suspects and the arrest and charging of the Applicant. A complete summary of his evidence is not necessary given the issues raised on the appeal. However, reference should be made to his evidence on several discrete topics.

5. [33]

   Following the arrest of the Applicant on 28 February 2018, Detective Senior Constable Light had a conversation with the Applicant which included the following (T42) (my emphasis):

6. [34]

   In cross-examination, Detective Senior Constable Light was asked about the persons suspected to have been involved in the commission of these offences and why it was that the Applicant was charged (T74-75) (my emphasis):

7. [35]

   Detective Senior Constable Light stated that a crime scene was not established in the paddock area with the items being collected by police officers. He explained why a crime scene was not established (T50):

8. [36]

   In cross-examination, Detective Senior Constable Light was asked about steps taken during collection of items to guard against contamination (T58-59):

9. [37]

   Counsel for the Applicant asked Detective Senior Constable Light about clothes sharing (T71):

10. [38]

    Senior Constable Daniel Drew of the Lismore Crime Scene Section gave evidence in the Crown case. He examined the items of clothing and took tape lifts from various locations on them. In cross-examination, Senior Constable Drew was asked about tape lifts taken from gloves. He believed that “the gloves were the right way out” (T115). He was asked (T115) (my emphasis):

11. [39]

    Later in cross-examination, Senior Constable Drew was asked (T144-145):

12. [40]

    Detective Senior Constable Hoffman attended the scene of the paddock and took part in the collection of items of clothing. He said that the general area where the phone, wallet and clothing items were located was “about probably 20 to 15 square metres” (T162). In cross-examination, Detective Senior Constable Hoffman was asked about the collection of the clothing items (T163-164):

13. [41]

    The Crown called Ms Ivana Sesardic, who is a Forensic Biologist with the Forensic and Analytical Science Service. Ms Sesardic analysed a number of items in this matter. Ms Sesardic provided general evidence in relation to DNA, sources of DNA, testing of DNA and the ways in which samples, including tape lifts, are obtained and used in the analysis process (T184-187).

14. [42]

    Ms Sesardic explained a number of other concepts (T187-188):

15. [43]

    When asked about the results for R30, being the tape lift from the inside of the boot from exhibit ending 9630 (with the result being that the Applicant cannot be excluded as a contributor to this mixture), Ms Sesardic said that (T188-189):

16. [44]

    Ms Sesardic continued (T189):

17. [45]

    When asked about “Individual H”, Ms Sesardic said that there had not been a match to any of the individuals that have been submitted for comparison and it denoted an unknown profile which was given the denomination H (T189).

18. [46]

    Ms Sesardic was then asked about the statistical strength, after using this program, in relation to the Applicant (T189):

19. [47]

    In relation to R23 (a tape lift from the neck hem of a jumper), Ms Sesardic concluded that there was a mixture that originates from at least three individuals and the Applicant could not be excluded as the major contributor (T189-190).

20. [48]

    In relation to R24 (a tape lift from the inside of the left glove), Ms Sesardic concluded that there was a mixture that originates from at least three individuals, and the major contributor has the same profile as the Applicant (T190).

21. [49]

    In relation to R25 (a tape lift from the inside of the right glove), Ms Sesardic concluded that there was a mixture that originates from at least three individuals, and that the Applicant and Dylan White (a suspect for these offences) cannot be excluded as contributors to this mixture (T190).

22. [50]

    Ms Sesardic was asked what was meant by the words “further work can be carried out if the statistics are required” and she said (T190):

23. [51]

    In relation to R26 (a tape lift from a black shirt), Ms Sesardic was asked by the Crown (T191):

24. [52]

    In relation to R37 (the tape lift from the inside neck hem), Ms Sesardic concluded that it was a mixture that originates from at least two individuals and the major contributor to the mixture has the same profile as the Applicant (T191).

25. [53]

    In relation to R41 (a tape lift from the inside palm of a glove), Ms Sesardic concluded this was a mixture originating from at least three individuals and the Applicant cannot be excluded (T192).

26. [54]

    In relation to R46 (a tape lift from the inside waistband of some green pants), Ms Sesardic concluded that there was a mixture from at least two individuals and the major contributor to the mixture has the same profile as the Applicant (T192).

27. [55]

    Ms Sesardic gave evidence that she had seen expert reports from Ms Jae Gerhardt and Mrs Roebuck who had prepared reports for the defence concerning the DNA evidence. Ms Sesardic was asked to comment on various aspects of those reports and she gave the following evidence (T192-194):

28. [56]

    Ms Sesardic also said (T195):

29. [57]

    In cross-examination, Ms Sesardic was taken to the report of Ms Gerhardt and she accepted the following propositions (T195-198):

30. [58]

    Mrs Roebuck is a forensic biologist at Independent Forensic Services and gave DNA expert evidence in the defence case. She started her evidence with the general explanation that it is possible for a person who wears or has direct contact with an item of clothing to leave DNA on it (T204). It is also possible for somebody to wear or have direct contact with an item of clothing and not leave DNA on it, for example, “maybe they wear the item very briefly and really, there’s very limited contact. It may be that the garment isn’t particularly tightly fitting. But in fact its more often than not what occurs is that the amount of DNA deposited is insufficient for recovering or detection” (T204).

31. [59]

    Mrs Roebuck agreed that a sample taken from R26 (a black t-shirt) matched the profile provided by the Applicant (T204-205). Mrs Roebuck also agreed that the inference to be drawn from the profile match is that at some stage there has been direct contact between the Applicant and that item of clothing (T205).

32. [60]

    Mrs Roebuck also agreed that it is possible that a source which is identified as coming from a single contributor could be deposited as a trace DNA, the same as on an item of clothing in some other way than direct contact with that one contributor - “studies have shown instances where indirect transfer occurs, but only a single source DNA profile from the person who has not contacted the item is detected” (T205). Mrs Roebuck also agreed that it is possible that somebody can have contact with a garment such as a t-shirt either by wearing or touching it, and other people can later have contact with the same garment and not leave any detectable trace DNA on the garment (T205). It is also possible that DNA can be on a t-shirt for months or years prior to it being analysed “we’re not able to date or determine when that DNA was deposited” (T205). When asked how sweat impacts on trace DNA being recoverable from a garment, Mrs Roebuck explained that sweat can assist, “DNA can be transferred more readily when water or wet fluid is present” (T205).

33. [61]

    Mrs Roebuck agreed that touching a garment and not leaving DNA is possible, or that the DNA might be present, but not able to be recovered (T206). She explained that if a “person were to wear a garment for longer, yes, you would expect more DNA to be deposited” (T206). Mrs Roebuck also agreed that the DNA sampling of R26 (the black t-shirt) was a tape lift procedure, meaning that “no testing for specific biological material was conducted” and so the DNA detected could have been skin, saliva, blood or semen (T207).

The Reasons of the Trial Judge

1. [62]

   At the hearing of the appeal, Mr Fraser, counsel for the Applicant, identified parts or the trial Judge’s comprehensive reasons which were (or were not) in dispute. A very great deal of her Honour’s reasons are not disputed with the critical areas of controversy being the conclusions reached culminating in the verdicts of guilty. This was a trial where there was very little factual dispute with the real issues in contest concerning the conclusions to be reached by reference to the evidence and explanations which may be available for the presence of the Applicant’s DNA on nine items of clothing located in the paddock in Casino.

2. [63]

   As noted earlier, in these circumstances, the trial Judge’s reasons provide a valuable template for this Court to discharge its function under ss.5(1) and 6(1) Criminal Appeal Act 1912.

3. [64]

   Early in the trial judgment, her Honour identified the real issue in the trial in the following way (pages 1-2):

4. [65]

   Her Honour summarised the Crown case in the following way (pages 2-4):

5. [66]

   The trial Judge summarised the defence case as follows (page 4):

6. [67]

   In accordance with s.133(2) Criminal Procedure Act 1986, her Honour outlined a series of directions concerning circumstantial evidence, expert evidence and the need for caution in drawing inferences (pages 4-5).

7. [68]

   Her Honour referred to the evidence of Mr Gardner, Mr Lavelle and Mr Walker (pages 5-15).

8. [69]

   Her Honour then summarised the CCTV evidence and descriptions of that evidence contained in a summary document (Exhibit H). The following findings were made by reference to the CCTV evidence (pages 15-16):

9. [70]

   Her Honour then addressed the issues of opportunity and alibi noting that the Applicant had served an alibi notice (Exhibit 11) which stated that, at the time of the offences, he was at an address in South Kempsey. Her Honour considered evidence bearing upon the alibi issue and other persons whose names had been mentioned as suspects for the offences (see [33]-[34] above) (pages 17-19):

10. [71]

    Her Honour then made the following finding concerning any association between the Applicant and these named persons together with the Applicant’s alibi and his opportunity to commit the offences (pages 19-20):

11. [72]

    The trial Judge then turned to consider items located in the paddock and the DNA evidence. When doing so, her Honour said (page 21):

12. [73]

    Her Honour referred to the evidence of the search of the paddock and the location of items in that place (pages 21-23).

13. [74]

    The trial Judge then summarised the evidence concerning items located in the paddock and the results of DNA analysis with respect to those items, these being (pages 24-26):

14. [75]

    The trial Judge then referred to other DNA findings with respect to items of clothing (pages 26-30). Her Honour then noted the significance of evidence of the presence of the Applicant’s DNA on nine different items of clothing for the Crown case (pages 30-31):

15. [76]

    Mr Fraser confirmed in this Court that there was no challenge to the lastmentioned finding of the trial Judge, nor with respect to the following 17 findings which her Honour then made concerning the DNA evidence (pages 31-34):

16. [77]

    Her Honour then made the following findings in which it was accepted that there was an indispensable intermediate fact which the Crown was required to prove beyond reasonable doubt (in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56) (pages 34-35):

17. [78]

    Her Honour then made the following finding which was not challenged by counsel for the Applicant in this Court (page 35):

18. [79]

    The next part of the trial Judge’s analysis was also not challenged by the Applicant’s counsel in this Court. Her Honour said (pages 35-36):

19. [80]

    The next part of the trial Judge’s reasoning was also not challenged by counsel for the Applicant. Her Honour said (pages 36-39):

20. [81]

    Counsel for the Applicant challenged the trial Judge’s tenth, eleventh and twelfth findings (pages 39-40):

21. [82]

    Counsel for the Applicant did not challenge the thirteenth finding made by the trial Judge (pages 40-41):

22. [83]

    The trial Judge concluded her reasons in the following way, culminating in a finding that the Applicant was guilty of each of the offences charged in the indictment (pages 41-42):

Submissions for the Applicant

1. [84]

   Mr Fraser submitted that the credibility of witnesses was not brought into question at the trial so that this was not a case where the trial Judge had an advantage over an appellate court as a result of seeing and hearing the witnesses. He noted that no challenge was made to the evidence of Mr Gardner or Mr Lavelle with that evidence being supported in large part by the CCTV footage.

2. [85]

   Mr Fraser accepted that the evidence of Mr Gardner and Mr Lavelle clearly established a joint criminal enterprise whereby the robbers had formed an agreement to break into the Club with an intention of robbing the staff who were there. In the process, the robbers detained Mr Gardner and Mr Lavelle. Mr Fraser accepted that the offences as charged in the indictment were clearly committed by the robbers, with the only issue at trial being whether the Applicant was one of those robbers.

3. [86]

   Counsel for the Applicant noted that the case against the Applicant was a circumstantial one. It was agreed at trial that there was an indispensable link that needed to be proved beyond reasonable doubt in order to convict. The trial Judge needed to be satisfied beyond reasonable doubt that the clothes found discarded in the paddock were connected to the robbery in the sense that they were discarded by the robbers as they fled the scene.

4. [87]

   Mr Fraser did not take issue with the trial Judge’s finding to the criminal standard that the clothes found discarded in the paddock were connected to the robbery in the sense that they were discarded by the robbers as they fled the scene.

5. [88]

   Once that intermediate fact had been established, Mr Fraser submitted that the case against the Applicant rested almost exclusively upon the finding of the DNA profiles on the discarded clothing. Counsel accepted that the combination of the evidence of the time it would take to travel to Casino from Kempsey and back again, together with the evidence that the car linked to Donahue had taken that trip, meant that the Applicant’s alibi notice did not in fact provide him with an alibi, at least not one supported by other evidence.

6. [89]

   Counsel accepted that the evidence permitted a finding that there was an opportunity for the Applicant to have been involved in the offences.

7. [90]

   Mr Fraser submitted that the evidence regarding the car linked to Donahue did not, however, provide any support for the assertion that the Applicant had himself made the trip to Casino. Furthermore, the monitoring of telephones linked to Donahue and the Applicant, whilst providing some evidence implicating Donahue in the offending, provided no such evidence in relation to the Applicant.

8. [91]

   The Applicant had told police that he knew Donahue and others whose DNA profiles were found, although he said that he did not know them well (see [33] above). Mr Fraser acknowledged that this established a link between the Applicant and those others, but submitted that it did not establish that he was with any of them on the night of the robbery, let alone that they were together in Casino committing the robbery. Counsel submitted that the evidence provided a social connection between the Applicant and the others, but no more.

9. [92]

   Mr Fraser submitted that there was no evidence beyond the DNA findings pointing to the Applicant being in Casino on the night of the offences.

10. [93]

    Counsel submitted that, in order for the Applicant to be found guilty of the offences, it was necessary for the trial Judge to be satisfied beyond reasonable doubt that the finding of the Applicant’s DNA profile on the discarded items of clothing meant that he had participated in the offences. The issue was whether the matching of the profiles of the Applicant’s DNA permitted a finding, beyond reasonable doubt, that he had worn the items during the commission of the offences and discarded them thereafter.

11. [94]

    Mr Fraser relied upon the decision of the High Court of Australia in Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28 which he submitted was analogous to the present case. The evidence in Fitzgerald v The Queen indicated that another person (Mr Sumner) who was linked to the appellant (and was his co-accused at trial) had been at the relevant premises on two occasions on the day of the murder. In allowing the appeal against conviction and directing the acquittal of the appellant, the Court (Hayne, Crennan, Kiefel, Bell and Gageler JJ) said at [36]:

12. [95]

    Reliance was placed, as well, upon Decision Restricted [2018] NSWCCA 217, an appeal from a case based almost exclusively on DNA evidence. The appellant in that case raised the possibility of secondary transfer as explaining the finding of DNA profiles of the appellant on vulval swabs taken from a four-year old child who had been sexually assaulted. The offence occurred in the appellant’s house and there was some evidence that the appellant’s DNA profile may have been present in trace amounts in various locations. Three possible scenarios explaining the DNA profile were considered in that case. Fullerton J (Bathurst CJ and Campbell J agreeing) observed (at [150]-[151]) that of these exculpatory scenarios, the first one was so implausible as to be rejected and the second and third “whilst theoretically possible were equally as speculative, that is, not reasonably possible in all the circumstances”. The Court distinguished Fitzgerald v The Queen in these circumstances.

13. [96]

    Mr Fraser submitted that, unlike Decision Restricted, the evidence in the present case was not such that the only rational explanation for the presence of the Applicant’s DNA was that he was wearing the items during the commission of the offences.

14. [97]

    Counsel referred to the tenth, eleventh and twelfth findings of the trial Judge concerning the DNA evidence (see [81] above). Mr Fraser submitted that it was apparent that her Honour regarded the cumulative effect of the finding of the DNA profiles as rendering it more likely that the Applicant had worn the items. Her Honour noted that the items could be worn effectively as a complete outfit. Mr Fraser submitted that, if there had been clear evidence of a single robber wearing clothing that precisely matched the items found in the paddock, then that may have been strong evidence pointing to the Applicant’s participation in the offences.

15. [98]

    He submitted, however, that whilst the finding of the Applicant’s DNA profile on items that could form a complete outfit might permit an inference that they were worn as an outfit during the offences, the evidence could still not exclude competing inferences. He submitted that the evidence was incapable of establishing precisely what each robber wore and, more particularly, was incapable of demonstrating that a single robber wore all the items of clothing which bore the Applicant’s DNA profile.

16. [99]

    Mr Fraser submitted that the evidence was such that the robbers, with the exception of one taller man, were described as similar in build and as such the prospect that they might each fit into the clothes so that the clothes could have been spread amongst them was reasonably possible. He submitted that neither the CCTV footage nor the eyewitness accounts were capable of ruling out that possibility.

17. [100]

    Furthermore, counsel submitted that whilst it might be that the cumulative effect of the DNA hits made the Crown assertion that the Applicant was wearing the clothing more likely, the totality of the evidence in the trial raised several reasonably available alternative hypotheses.

18. [101]

    Firstly, counsel submitted that there was evidence in the trial of Aboriginal persons swapping or otherwise using each other’s clothing (see [37] above). He submitted that the prospect that the Applicant could have worn some or all of the clothing at some point served to explain the presence of his DNA profile on items of clothing. However, Mr Fraser noted that, as was made clear by the forensic experts, even if he had worn the clothing at some point, there was no way of determining when that was and no way of determining whether he was the last person to wear the items.

19. [102]

    Secondly, Mr Fraser submitted that, unlike the situation in Decision Restricted, each of the items, except one, resulted in a mixed profile being found. Accordingly, there was the presence of other profiles on all except one item. Counsel submitted that the evidence of the forensic experts could not say whether all or any of the profiles were deposited by direct as opposed to secondary transfer and, even if the profiles represented wearers, the evidence could not establish the identity of the last wearer. He submitted that the additional profiles provided a reasonable possibility that someone else had worn the clothing and may have done so during the commission of the offences.

20. [103]

    With respect to one item (a shoe) which contained only the Applicant’s DNA (Item R30), Mr Fraser submitted that this evidence should be considered in light of two important aspects of the evidence. Firstly, it was apparent that a specific area on the item was targeted for testing so that the entire item was not tested. Secondly, the expert evidence made clear that a person can touch an item and either not leave any DNA or, more likely, not leave sufficient DNA for it to be later recovered. Mr Fraser submitted that the result for this item does not mean that the only reasonable conclusion is that the Applicant was the only person to be in contact with it. Indeed, he submitted that the evidence of transference is such that it could not be conclusively said that the Applicant had ever worn or been in direct contact with the item.

21. [104]

    Thirdly, Mr Fraser submitted that evidence as to the possibility of transference of trace DNA was such that, even if the finding of the Applicant’s DNA was the result of him wearing one or some of the items, it could not conclusively be said that he wore at any time all of the items. The evidence was clear that the technology was such that DNA testing is highly sensitive and secondary transference can occur.

22. [105]

    Mr Fraser submitted that one possible scenario could be that the pants had been worn by the Applicant at some point such that his DNA profile might be on the waistband. Everyday experience shows that an individual when putting on pants would pull them on by the waistband area. Thus, it was submitted that it was reasonably possible that someone might put on a pair of pants previously worn by the Applicant and, in doing so, the Applicant’s DNA could be transferred to that person’s hands. It was submitted that the potential to then on-transfer the Applicant’s DNA to other clothing in the course of dressing is, on the evidence of the experts, reasonably possible.

23. [106]

    Fourthly, Mr Fraser emphasised that there was no evidence as to the history of the items. He submitted that it is to be presumed that the persons who discarded the items of clothing had other clothing to put on in their place. There is no evidence from which it could be concluded that the robbers wore the robbery clothing, as opposed to their post-robbery clothing, at an earlier time. If they had not done so, it was submitted that the unanswered question is how were those items of clothing kept prior to the offences. If, for example, they had been kept in a bundle in the vehicle or a bag, then it was submitted that the risk of cross-contamination was real. It was submitted that the evidence of police and forensic scientists as to why they separately bag items, made that point clear.

24. [107]

    Fifthly, to the extent that the Applicant knew Donahue and others named in the expert’s certificate, Mr Fraser submitted that this evidence provided a social connection between the Applicant and the others named. That in turn provided a legitimate and reasonable scenario for transference of DNA. Mr Fraser pointed to the annexure to the certificate of Ms Sesardic which stated:

25. [108]

    Mr Fraser submitted that the existence of a social connection, when combined with the evidence of Aboriginal people sharing clothes, meant that the prospect that one of the other named persons might have taken or borrowed the Applicant’s clothing was reasonably open.

26. [109]

    Counsel submitted that this was a case like Fitzgerald v The Queen, where there was an evidentiary basis for several alternative hypotheses consistent with innocence. Unlike Decision Restricted, it was submitted that the totality of the evidence did not render those alternative hypotheses unreasonable or implausible. Even if the Crown theory could be seen as more likely, Mr Fraser emphasised that would not be sufficient. The existence of a reasonable available alternative theory constituted a doubt that should have resulted in a verdict of not guilty in respect of each count.

27. [110]

    Mr Fraser submitted that the appeal should be upheld upon each count with the convictions quashed and verdicts of acquittal being entered pursuant to s.6(2) Criminal Appeal Act 1912.

Submissions of the Crown

1. [111]

   With respect to the defence submission that a reasonable innocent hypothesis arose from the prospect of clothes sharing amongst members of the Aboriginal community, the Crown submitted that there was no evidence at the trial of any sharing of clothes between the Applicant and the other suspects. Rather, the evidence rose no higher than the general belief of Detective Senior Constable Light that clothes sharing may occur (see [33] above). When interviewed by police as to whether he knew the other suspects, the Applicant said with respect to Donahue and Mark Kennedy (another suspect) “Know em, but don’t know em well” (see [33] above).

2. [112]

   The Crown submitted that any reasonable hypothesis consistent with innocence requires an evidentiary basis and, at the very least, some evidence from which a reasonable possibility of an innocent explanation can be drawn: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13. The Crown submitted there was no such evidence in this case. It was submitted that this aspect allows the Court to distinguish the present case from Fitzgerald v The Queen where there was evidence as to when a co-offender may have transferred DNA from the appellant on to an item in the house where the killing occurred.

3. [113]

   The Crown submitted that, in the present case, the clothing and shoes found near the scene of the robbery had tape lifts taken from areas where one would expect to find DNA if the item had been found by a person (T186, Ms Sesardic). DNA matching that of the Applicant was retrieved from a tape lift (R3) from the inside heel of a Crane brand boot worn during the robbery. The Applicant was a major contributor to this DNA. There were two minor contributors, but the DNA levels of those contributors were so low as to be unsuitable for analysis.

4. [114]

   The Crown submitted that this was consistent with the Applicant having worn this shoe during the robbery as the DNA was located in a place where it is unlikely that any secondary transfer would have occurred such as could account for the large amount of the Applicant’s matching DNA at that location.

5. [115]

   The Crown pointed to the tape lift (R30) from the other matching shoe which also contained the largest contribution of DNA matching that of the Applicant. His match accounted for 70% of the DNA with an unknown individual accounting for 30% and a third individual, 1%-2% of the DNA.

6. [116]

   The Crown submitted, as well, that the socks recovered in the paddock were ankle socks, making it likely that the DNA from inside the boots was from direct skin contact.

7. [117]

   With respect to DNA from the tape lift of the neck hem of the jumper hoodie (R23), the Crown submitted that this also showed the Applicant as the major contributor with the inference being that because he was the wearer of the item, the DNA was a direct transfer.

8. [118]

   The Crown submitted that the Applicant’s DNA was also retrieved from inside two orange gloves worn during the robbery (tape lifts R24 and R25). These gloves were found the right way out and turned inside to do the tape lifts so, the Crown submitted, there was no issue of possible contamination on collection of those items (T115). The Crown submitted that DNA matching the Applicant was a major contributor to these samples.

9. [119]

   One of the other contributors to R25 was a suspect, Dylan White. The other contributors were at such low levels of DNA that their contribution could not be analysed. These gloves were said to be in relatively good condition. The Crown submitted that they are unlikely to have been shared or handled in circumstances other than in preparation for the robbery or during their disposal after the robbery.

10. [120]

    The Crown submitted that, significantly, the DNA from the black shirt tied up like a face mask originated solely (as far as can be scientifically ascertained) from the Applicant. The tape lift from this item (R26) was taken from an area at the back of his shirt that was likely to have been in direct contact with the Applicant’s face or head had he worn it as a mask. The Crown submitted that there is no evidence capable of giving rise to an argument about secondary transfer in respect of the DNA on this item.

11. [121]

    The Crown submitted that DNA was also recovered from a black glove and from the waistband of the green pants with the Applicant being the main contributor.

12. [122]

    The Crown submitted that there were a number of other aspects of the circumstantial evidence relied upon by the Crown at trial which were outlined in the judgment of the trial Judge. The Applicant had the opportunity to go to Casino with Donahue, whose car was seen going to and from Casino to Kempsey both before and after the offence. The Applicant purported to have an alibi, but it is conceded that he did not have one. The Applicant bore a physical resemblance in build and height to descriptions given by the victims of the robbers. The Applicant is Aboriginal and it is not disputed that the robbers were Aboriginal. The tops tied as face masks and gloves matched to the Applicant’s DNA and these were items that had specific use in the robbery.

13. [123]

    The Crown noted that the Court must determine for itself whether it thinks that, upon the whole of the evidence, it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the Applicant was guilty. The Crown noted that the CCTV footage and descriptions of the robbers were incomplete and did not rule out the Applicant as a robber.

14. [124]

    The Crown submitted that nine DNA matches on items constituting a whole outfit, which were proved beyond reasonable doubt to have been worn during the offences did not leave open any reasonable innocent explanation in the absence of any evidentiary basis for one.

15. [125]

    The Crown submitted that the Applicant had not established that the verdicts of guilty were unreasonable or not supported by the evidence so that the appeal should be dismissed.

The CCTV Footage

1. [126]

   At the hearing of the appeal, the Court was asked to view the CCTV footage of events inside the Club during the course of the offences. The trial Judge had made findings concerning the CCTV evidence (see [69] above).

2. [127]

   I viewed the CCTV footage in Chambers after the Court had reserved its decision. The Crown and Mr Fraser both provided supplementary submissions concerning the CCTV footage.

3. [128]

   The Crown submitted that aspects of the CCTV footage assisted in determining the number of robbers who entered the Club and also provided some understanding of the facial disguises and clothing worn by the robbers.

4. [129]

   The Crown submitted that some of the images would assist a finding that one of the robbers was wearing two separate items of face covering.

5. [130]

   Mr Fraser submitted that the images in the CCTV footage were not such as to allow such a finding.

6. [131]

   Having viewed the CCTV footage, I agree with the description of the trial Judge concerning that evidence (see [69] above and the sixth finding at [80] above). The CCTV footage is of variable quality and allows a general impression to be formed of certain events.

7. [132]

   The CCTV footage does not materially advance the Crown case against the Applicant by reference to clothing worn by one or more of the robbers, but it does not undermine it either. What is sufficiently clear is that the robbers have gone to considerable lengths to wear disguises and clothing selected for use in the commission of the offences. Items of clothing used for the purpose of committing the offences were discarded in the paddock.

8. [133]

   Nothing contained in the CCTV footage serves to undermine or contradict the Crown submission that the items of clothing which bore the Applicant’s DNA had been worn as a single outfit on one of the robbers.

Decision

1. [134]

   I have had regard to the evidence adduced at the trial of the Applicant together with the careful and sequential reasons of the trial Judge leading to the conviction of the Applicant on each count. As noted earlier, although the Court must have regard to the evidence for the purpose of determining this appeal, the authorities make clear that regard can be had to the reasons of the trial Judge giving rise to the verdicts of guilty.

2. [135]

   The Crown case against the Applicant was a circumstantial one. The DNA evidence implicating the Applicant was part, and a critical part, of the Crown’s circumstantial case. DNA evidence is capable of being powerful evidence implicating an accused person in the commission of a crime: Aytugrul v R (2010) 205 A Crim R 157; [2010] NSWCCA 272 at [126]-[127] (Simpson J).

3. [136]

   Counsel for the Applicant at trial, and in this Court, sought to identify what were said to be one or more reasonable innocent hypotheses which may explain the presence of the Applicant’s DNA on nine items of clothing located in the paddock where the robbers had discarded a number of items associated with the offences.

4. [137]

   The trial Judge was satisfied to the criminal standard that the clothes and other items discarded in the paddock had been worn by the robbers who committed these offences. Of the items which were discarded, the DNA of the Applicant appeared on nine items including a shirt, a hoodie, the insides of two shoes, the inside palm area of three gloves and the waistband of a pair of trousers, each of which would have come into close contact with the wearer of the items of clothing.

5. [138]

   This was not a case where a single DNA match was located on one item. It was a powerful factor in support of the Crown case that this number of DNA matches (of varying degrees of strength) were located on nine separate items of clothing (worn during the offences) which were capable of constituting, when put together, a complete outfit.

6. [139]

   The evidence demonstrated that the Applicant had an opportunity to commit the offences. Her Honour’s finding in that respect is not challenged in this Court.

7. [140]

   Particular emphasis was placed by Mr Fraser upon what were said to be reasonable hypotheses consistent with innocence which arose in this case.

8. [141]

   Before moving to those hypotheses, it is appropriate to observe that the application of the principles stated in Fitzgerald v The Queen will always involve an examination of the facts of the case under consideration. As the High Court concluded (see [94] above), there was evidence at that trial of events which were capable of explaining secondary transfer of the appellant’s DNA to the didgeridoo so that the trial court (and the Court of Criminal Appeal) was bound to acquit in that case.

9. [142]

   In Decision Restricted, this Court did not accept that a reasonable alternative hypothesis had been identified so that the unreasonable verdict ground in that appeal was rejected.

10. [143]

    A similar outcome arose in Sloan v R [2015] NSWCCA 279, a case with some similarities to the present one. There, Beech-Jones J (Bathurst CJ and Price J agreeing) concluded that, unlike Fitzgerald v The Queen, there was no reasonable alternative hypothesis advanced to explain the presence of the appellant’s DNA on discarded clothes found near the scene of a robbery. Beech-Jones J said (at [66]-[67]):

11. [144]

    A suggested alternative hypothesis in this case was that the Applicant shared his clothing with other members of the Aboriginal community and that this may explain the presence of his DNA on the clothing in circumstances where there was said to be a social connection between the Applicant and other persons named as suspects with respect to these offences. This argument was based upon the general evidence of Detective Senior Constable Light (see [33]-[34], [37] above).

12. [145]

    In my view, unlike Fitzgerald v The Queen, this evidence does not provide a reasonable foundation for this hypothesis. The evidence rises no higher than the statement by the Applicant to police that he knew one or more of these persons and the police officer’s opinion that, from time to time, persons share clothing.

13. [146]

    For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a trial court from finding a person guilty if the inference of guilt is the only inference open to reasonable persons upon a consideration of all the facts in evidence: Peacock v The King (1911) 13 CLR 619 at 661; [1911] HCA 66; Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said at [46]-[47] (footnotes omitted):

14. [147]

    There is a very real distinction between drawing an inference from facts disclosed in evidence and engaging in speculation: Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [109]-[110] (Bathurst CJ, Simpson and Adamson JJ).

15. [148]

    I have kept firmly in mind that the Applicant did not bear the onus of proof at trial. It was for the Crown to prove beyond reasonable doubt that the only reasonable explanation for the presence of the Applicant’s DNA on nine items of clothing associated with the offences was that he was one of the robbers. However, a reasonable hypothesis consistent with innocence must be based upon more than guesswork, conjecture or speculation. Unlike Fitzgerald v The Queen, the evidence concerning clothes sharing in this case rose no higher than the belief of Detective Senior Constable Light that such a thing can occur. There was no evidence that these particular items of clothing may have been shared innocently. No such suggestion had been made by the Applicant to the police. Her Honour’s twelfth finding (at [81] above) addressed this issue with her Honour, once again, emphasising the cumulative effect of the Applicant’s DNA being located on nine items of clothing.

16. [149]

    A further alternative explanation advanced for the Applicant was the prospect of contamination as a result of items of clothing being bundled up in some way by investigating police when being collected from the paddock. It is necessary to keep in mind the location on the various items of clothing where the Applicant’s DNA was found. These included the inside of socks as well as a boot and a t-shirt which the Crown alleges was used as a facial disguise by the Applicant.

17. [150]

    In my view, the suggestion of contamination occurring at the time of police collection of the items does not rise above speculation which is neither assisted nor supported by the location on the individual items of clothing where the Applicant’s DNA was found. Her Honour addressed this topic in the eleventh finding (at [81] above) in terms with which I agree. I do not regard this hypothesis as being reasonable.

18. [151]

    In the same way, I regard the possibility of secondary transfer as an explanation for the presence of the Applicant’s DNA on the nine items as a prospect which does not rise above speculation or conjecture. The circumstances of this case are quite different to those in Fitzgerald v The Queen.

19. [152]

    To the contrary, I regard the trial Judge’s findings (see [75]-[83] above) as being powerful and, in the context of this case, unanswerable features clearly pointing to the guilt of the Applicant. As her Honour observed (in the eleventh finding at [81] above), the Applicant’s DNA was found on the inside neck or back area of the shirt and hoodie, on the inside of two shoes and the inside palm area of three gloves and the inside waistband area of a pair of trousers with those factors pointing strongly towards primary transfer as the means of deposit. Whilst her Honour approached alternative arguments upon the basis of possibility, the alternative explanations were bare possibilities at best which, in truth, did not rise above speculation or conjecture.

20. [153]

    I have viewed the CCTV footage and considered submissions made by counsel for the Applicant and the Crown at the hearing in this Court and in supplementary written submissions. As noted earlier (at [131]), I agree with the trial Judge’s description and findings concerning the CCTV footage. There is nothing in the CCTV footage which undermines the strength of the Crown case against the Applicant which is based upon the location of his DNA on nine items of clothing worn in the course of the offences.

21. [154]

    Having considered the entirety of the evidence at the trial of the Applicant in conjunction with the reasons of the trial Judge, I conclude that it was open to her Honour to be satisfied of the guilt of the Applicant beyond reasonable doubt upon each of the three counts in the indictment.

22. [155]

    As noted earlier, the question posed by this ground of appeal is whether the Applicant has demonstrated that the trial Judge must, as opposed to might, have entertained a reasonable doubt concerning the Applicant’s guilt (see [26]-[27] above). The Applicant has not demonstrated that the trial Judge must have entertained a reasonable doubt with respect to his guilt for these offences.

23. [156]

    In my view, the Crown demonstrated at trial that the only reasonable explanation for the presence of the Applicant’s DNA on the nine items of clothing was that he was one of the robbers who entered the Club as part of a joint criminal enterprise to commit these offences. Unlike Fitzgerald v The Queen, this is not a case where a reasonable alternative hypothesis consistent with innocence was raised at trial and was not rebutted by the Crown.

24. [157]

    In my view, the Crown established the guilt of the Applicant beyond reasonable doubt with respect to each of the three offences.

Conclusion and Orders

1. [158]

   The Applicant has not made good his sole ground of appeal against conviction. There is no ground of appeal concerning sentence.

2. [159]

   Having regard to the issues raised in the appeal, I would grant the Applicant leave to appeal, but dismiss the appeal.

3. [160]

   I propose the following orders:

4. [161]

   WRIGHT J: In accordance with the principles set out in Bell v R [2017] NSWCCA 207 at [19]-[27] and the other authorities referred to by Johnson J at [22] to [28] above, I have reviewed the whole of the record of the trial and made my independent assessment of the evidence, both as to its sufficiency and its quality, and have also had regard, as appropriate, to the reasons for verdict of the trial judge. I have done so in order to reach a conclusion as to whether or not I have a reasonable doubt as to the ultimate findings of guilt, which cannot be resolved by taking into account the trial judge's advantage in seeing and hearing the evidence.

5. [162]

   I would only disagree with the trial judge’s findings in one respect, namely that she could not “specifically see any machetes” in the CCTV footage. In my view, the footage in item 5 in Exhibit H clearly shows two of the persons involved in the robbery holding machetes. [1] Nothing in this appeal, however, turns on this very minor disagreement.

6. [163]

   The alternative hypotheses consistent with innocence relied upon by the Applicant did not rise above mere conjecture or bare possibility, having regard to all of the circumstances established by the evidence, for the reasons given by Johnson J above. In addition and in so far as they were relied upon, [2] the photographs of the Applicant’s residence in Kempsey (Exhibit 6) did not, in my view, assist to elevate the hypothesis that the Applicant’s DNA was on the nine items clothing and footwear, as a result of sharing clothing, above the level of mere conjecture or bare possibility.

7. [164]

   As a result of my review of the evidence as a whole, I was not left with a reasonable doubt as the Applicant’s guilt in respect of any of the three offences with which he was charged. It was reasonably open to the trial judge to be satisfied beyond reasonable doubt that the Applicant committed each of the offences. Thus, none of the verdicts was unreasonable or not able to be supported on the evidence.

8. [165]

   Otherwise, it is sufficient to say that I have had the advantage of reading Johnson J’s judgment in draft and I agree with, and respectfully adopt, his Honour’s analysis and reasons. Accordingly, I also agree with the orders that his Honour proposes.

9. [166]

   WILSON J: I have had the advantage of reading the judgment of Johnson J, and am indebted to his Honour for his careful analysis of the evidence, and of the respective arguments of the parties. I am in complete agreement with Johnson J, and gratefully adopt his reasoning.

10. [167]

    I agree with the orders proposed by the Presiding Judge.