Byrne v R

Court of Criminal Appeal (NSW)|2020-06-16|Before: Johnson J, Wright J, Wilson J

Judgment

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.
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.
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.
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

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.
No appeal is brought with respect to sentence.
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

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.
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.
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 Crown Case

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.
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.
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.
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.
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.
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".
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. Defence Case
The Applicant did not give evidence at the trial.
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.
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.
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

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].
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]: "19 The only ground of appeal in relation to the conviction is 'that the verdict of the trial judge is unreasonable or cannot be supported by the evidence'. The ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides: '(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.' 20 The nature of an appeal on that ground after a trial by judge alone was considered by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. The Court noted the provisions of s 133(1) of the Criminal Procedure Act 1986 (NSW), which provides that a judge who tries criminal proceedings without a jury, may make any finding that could have been made by a jury on the question of the guilt of the accused person and that any such finding has, for all purposes, the same effect as a verdict of a jury. The Court considered that the reference to the judge's 'finding' in that context was to be understood to refer to the ultimate finding of guilt or otherwise, as opposed to the findings of fact leading to the ultimate finding: at [6] per French CJ, Bell, Keane and Nettle JJ; per Gageler J at [80]. 21 The Court held that the combined effect of the two sections is that a judge's finding of guilt 'is not to be disturbed [under s 6(1) of the Criminal Appeal Act] unless there is no or insufficient evidence to support the finding, or the evidence was all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice': plurality at [12]; and see Gageler J at [82]-[83]. 22 In the case of an appeal from a jury verdict, the approach this Court should take to an appeal invoking the first limb of s 6(1) is well settled; the task is to review the whole of the record of the trial and to make an independent assessment of the evidence, both as to its sufficiency and its quality. It is not enough if a review of the evidence establishes that it was open to reach a different conclusion. Conversely, the question is not whether there was evidence on which a jury could convict: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J. If, after giving full weight to the primacy of the tribunal of fact, the appellate court is left in reasonable doubt as to the verdict, it is only where the advantage of the tribunal of fact in seeing and hearing the evidence is capable of resolving that doubt that the Court can conclude there was no miscarriage of justice. 23 The decision in Filippou makes plain that those principles also govern an appeal invoking the first limb of s 6(1) from a finding of guilt after a trial by judge alone. In such a case, however, the task of the appellate court is complicated by the need to consider the judgment of the trial judge. In the case of a jury verdict, a court of criminal appeal does not have access to the reasons for the verdict. The court in that case is confined to an assessment of the evidence, the submissions of counsel and the directions of law given by the trial judge. 24 In the case of trial by judge alone, the judgment of the trial judge must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 133(2) of the Criminal Procedure Act. 25 The plurality in Filippou proceeded on the assumption that, assuming the trial judge has complied with that requirement, the appellate court in an appeal from the verdict of a judge should have regard to the judge's reasons. 26 In a separate judgment, Gageler J specifically considered the place of the trial judge's reasons in the determination of an appeal under s 6(1) of the Criminal Appeal Act. His Honour said at [83]: 'Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence. In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb will require the Court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge given in compliance with s 133(2). In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge's advantage in seeing and hearing the evidence.' 27 The observations in the joint judgment at [12] and of Gageler J at [81]-[83] suggest that, to the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge's intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge."
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: "Reasons for verdict following a Judge-alone trial must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached. The trial Judge must expose his or her reasoning process by identifying the principles of law applied and the findings of fact made and the reasoning process by which those matters are linked: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]; AK v The Queen (2008) 232 CLR 438; [2008] HCA 8 at [85]. In determining an appeal against conviction from a trial by Judge alone, this Court should read the reasons of the trial Judge fairly and as a whole."
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].
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]: "… the question for an appellate court is whether it is open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt." (Footnote omitted, emphasis in original.)
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."
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

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.
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.
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. Detective Senior Constable Rohan Light
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.
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): "Q. You said to him, 'So the allegation is, Fred, that on the 11th -- ', the Sergeant maybe said 12th: ' on the 12/11/2017 at 9.00pm, you and four other people, being Chris Donahue, Elwin Roberts, Mark Kennedy, and Dylan White, have broken into the golf club armed with weapons, machetes, and iron bars, and have assaulted and tied up the two employees there at the premises. Assaulted one of the employees with a machete, and have tied them up with cables.' He answered, 'No comment.' Your question was then, 'That's all right. Do you know those four people that I spoke about? Chris Donahue, Mark Kennedy, do you know them?' And he replied, 'Know 'em, but don't know 'em well.' A. Correct."
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): "Q. Can I just ask some basic details. Chris Donahue, is he an Aboriginal male? A. Yes. Q. And his date of birth? A. Not off the top of my head. Q. I apologise. I'll -- A. Yeah. 23/12/1990. Q. Can I take you to page 12 of the COPS entry. Is Elwin Roberts an Aboriginal male? A. Yes. Q. His date of birth 13/4/1995? A. Yes. Q. Mark Kennedy, is he an Aboriginal male? A. Yes. Q. Is his date of birth 1/1/1996? A. Yes. Q. Page 14. A. Yes. Q. Dylan White, is he an Aboriginal male? A. Yes. Q. And is his date of birth 3/10/1991? A. Yes. Q. Are each of those four individuals - were they at that time known to be resident in the Greater Kempsey area? A. That was my understanding, yes. Q. Well, did you ascertain addresses for each of them in that area? A. Addresses where they resided from time to time. Q. And I think you've given some evidence already that you spoke to one of these gentlemen and asked him to give an interview and he refused. Is that correct? A. Elwin Roberts was the case. But I also remember now, after saying that, that I did have a phone conversation, or at least two phone conversations with Mark Kennedy after - some time after the arrest of Mr Byrnes, where he denied any knowledge of the offences and - but wouldn't come into a police station. I think off the top of my head, he said he was living and working in Sydney at the time. … Q. You'd agree that the information provided to you which notified you of the possible involvement of this accused in this offence, apart from the number of notifications, is the same as the information provided to you that would indicate the involvement of Mark Kennedy in this offence? A. Apart from the number, yes. Q. And is there any explanation other than the number, then, why this accused was arrested and Mark Kennedy was not arrested? A. It was the - the fact that there was DNA on every form of clothing: a top, pants, shoes, gloves, and a - a other top as well. A full set of clothing. Q. That brings us to the point that the basis then of this prosecution is that he was wearing that set of clothing during the commission of this offence. A. That's what I believe. Yes."
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): "Q. What was the reason for that? A. It was getting to the point where it looked like it was going to rain, there was quite heavy clouds and it was - looked like it was going to rain. I understand that Crime Scene were a reasonable way away doing - dealing with another job and the - the risk of waiting for them and - and having the items rained on was too great for us. It wasn't ideal but that was what we had to - were confronted with. Q. Essentially to preserve the exhibits? A. Exactly, yes."
In cross-examination, Detective Senior Constable Light was asked about steps taken during collection of items to guard against contamination (T58-59): "Q. And those officers that you've identified as being present on the ground, what did they tell you they had done prior to your arrival? A. They'd been begun searching the paddock area, where - in the area where we believed the mobile phone had been located, and had already found a number of items. Q. Had they done anything with those items that they'd found? A. They'd been bagged up and photographed when they could photograph them. Q. So what did you observe them doing in relation to being 'bagged up,' as you describe? A. Well, they'd be wearing gloves and they'd placed them in a - in a paper bag, an exhibit bag, and then kept possession of that bag while they kept searching. Q. So do you mean kept the bag in hand -- A. Yes, sorry. Yes. Q. Was there any entries made on the bags? A. I can't remember. Q. You gave evidence of what you did back at the station in relation to all of the exhibits that have been referred to in this case. Is that correct? A. Yes. Q. Did you place them in those exhibit bags back at the station? A. No, some of them - they all would have been in the exhibit bags from being at the paddock, and they were taken back to the station in those exhibit bags. So they weren't placed in any different exhibit bags. We didn't want to contaminate them. Q. And again, please refer to your statement if you wish to. Were those exhibit bags given to you at the scene where officers had collected things at the scene -- A. Yes. Q. and bagged them? A. Yes. Q. You indicate that you've collected several items also at the scene, and I'll refer you to paragraph 6 of your statement. Can you just take us through what process you followed when you did that? A. The items I - I located? Q. Yes. A. I had gloves on, so I changed them. We had boxes of gloves, so I - I changed the gloves after each item I picked up, placed the item in a bag, and I wrote a general time that it was located and a general description of the item quickly on the bag. And it was sealed and then feel - filled in in more detail back at the station. Q. And can you just describe the process of changing gloves in that process? What did you do? A. So I had a fresh pair of gloves every time I picked up a - a - a item of clothing and put in the bag. I'd put on a different pair of gloves. Q. So you'd take off the pair of gloves that you were wearing when you bagged the item. Is that correct? A. Yes."
Counsel for the Applicant asked Detective Senior Constable Light about clothes sharing (T71): "Q. Talking about that broad description and even broadening it wider, is it your experience as a detective involved in criminal investigation, particularly relating to Aboriginal offenders, particularly male offenders involved in break and enter robbery style offences, that there is a - a tendency to use each other's property and clothing? A. There can be that tendency. I - not - I wouldn't say it happens all the time. But I'm certainly aware that it - it can happen. Yes. Q. Is - is that some - that awareness, is that something that you keep in mind as an investigator? I - I guess what I'm asking you is it's a relevant consideration in the investigation of these types of offences. A. It's one of many things that you are aware of. Q. In a broader context, not dealing specifically with offenders as such, are you aware of a - a broader tendency within the Aboriginal community to share property such as clothing or to use clothing of other people? A. In - yeah. I - I - in some sections of parts of the Aboriginal community, I'm - I'm sure it happens. I'm aware that it - it has happened. Q. When we say - are we using that as a comparison to perhaps - what might be the understanding of most people in broader society about how they use their clothing or other items of property? A. I - I couldn't - I mean, I - I - I know a lot of people that share clothes. It doesn't really - it's not limited to one section of a society, I wouldn't want to say." Other Police Officers
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): "Q. With the gloves, do you have any recollection of where you took the tape lift from each of those gloves now? A. The gloves was from the inside palms, so I've turned the glove inside out and taken a tape lift from the palm area where there appears to be dirt and wear. Q. You've described these as being almost new with very little dirt or wear. Is that correct? A. Yes, yes. Q. Can you actually specifically remember whether you were targeting any worn area or whether you just went for the inside? A. It's just from the palm area, the palm. I don't remember specifically, I meant the palm area is generally the size of the area you take a tape lift from."
Later in cross-examination, Senior Constable Drew was asked (T144-145): "Q. You've described them as being stuffed into the sleeve. Do you mean by that a sleeve was fully extended to accommodate them as if they'd been physically stuffed in there? A. Yes. Q. You indicated to the Court where you would typically take a tape lift from the inside part of a glove which you believe you did in relation to each of the three gloved exhibits you described this morning. Is that correct? A. Yes. Q. And it may be obvious and confirming your earlier evidence-in-chief, but is that because you are aiming to gather skin cells caused by abrasion between the inside part of the glove and the bare hand of the wearer? A. Yes. Q. It may again seem obvious, but if someone had worn the exhibit ending 640 being the black glove that's been tendered this morning as exhibit AC, and then placed on the Cyclone glove over the top of that black glove - if they'd never worn the Cyclone glove before, one would not expect any of their DNA to be found on the inside palm of the Cyclone glove. Correct? SOLICITOR ADVOCATE: I'm not sure this witness is - perhaps -- HER HONOUR Q. Well, can you answer that question? A. There is a possibility of secondary transfer. WATTS Q. So by that you mean the person putting on or just handling the black glove might leave some of their trace DNA on the outside surface of the black glove, and then that would redeposit on the inside surface of the Cyclone glove, if they did it that way? A. Yeah, it's a possibility. HER HONOUR Q. Sorry to interrupt, but can I just ask, how did you do the tape-lift to the inside palm area? A. Turned the gloves inside out. HER HONOUR That's right. You've told me that, so - yes. Sorry. Go on, Mr Watts. WATTS Q. So obviously if something other than a hand was stuffed inside a glove, that could transfer trace DNA also? A. Possibly. Q. And similarly, if something was stuffed in a glove, there could be a transfer of trace DNA from the inside of the glove to that something? A. Yes. Q. Just to clarify a point before, when you held up the Crane boot, we went through the two of them, and her Honour asked where you took the tape-lift from, it may not mean anything - and please tell us if you need the exhibit - I interpreted you pointing to the inside heel near what would be described as the top of the boot. But her Honour used the phrase 'the inside heel at the bottom of the boot.' Do you have any recollection of where you tested this exhibit, or these two exhibits? A. Well, from memory, it reached as far inside as you can. So it depends on the shoe or the boot in question and how big your hands are as to how far you can reach, and whether you going to have the tape lift fold. Because they're quite sticky, as you would imagine. So they - they touch the surface and they'll fold over and - so you've got to reach as far as you can without folding them, to try and maximise any yield from the tape lift."
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): "Q. And just so that I can be clear on the process that you used with the gloves, are you saying that you would put on a pair of rubber gloves to pick up an item and put it in an exhibit bag? A. Yes, correct. Q. And then you'd take those gloves off. A. Yes, so I'd put the item - I'd get an exhibit bag - a fresh exhibit bag, put on a pair - go over where the item was, put on a pair of gloves, pick the item up, put it in the exhibit bag, fold the exhibit bag over and then sit the exhibit bag up at the police vehicle and then take off a pair of gloves, and I think by the end of it once we started collecting a few different items and realised there was more items going to be there, I - I just took a handful of gloves with me and then put on new pairs of gloves before I touched any of the items. Q. So you go back into the area with a number of exhibit bags and a number of gloves, is that -- A. Yeah. Q. -- correct? A. Yes. Q. And you use that process, you put on a pair of gloves, collect an item and put it in an exhibit bag -- A. Yes. Q. -- and then seal that bag -- A. I fold it over, I didn't seal it at that stage, just folded it over - yes. Q. And then take off the gloves and what do you do with the gloves that you've taken off? A. We just dropped them in a pile in the scrub - in the bush. Q. So they could be collected at the end? A. Collected at the end. Q. And then you go over to the vicinity of another item and you put on a pair of gloves and pick it up and put it in a bag, is that correct? A. Correct, yes." Ms Ivana Sesardic
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).
Ms Sesardic explained a number of other concepts (T187-188): 1. DNA mixture. 2. Major contributor. 3. Minor contributors. 4. DNA testing areas. 5. Sweat as a DNA source.
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): "This particular profile, if a DNA mixture similar to the other DNA profile recovered. So the initial interpretation assesses that the mixture originates from at least three individuals, and for this particular profile, there was not such a clear major contributor. So for this reason, a different type of analysis was carried out, and as there was not one clear major contributor, the profiles were compared, and similarly the profile from Fred Byrne cannot be excluded as a contributor to this mixture, but it's not matching the major contributor. And the statistical strength has been carried out using a statistical program, and that's how the statistics have been generated for that particular result, a program has been determined. And there is also the presence of another individual that has been determined for this mixture as well."
Ms Sesardic continued (T189): "There was one individual present in that mixture which is suitable for comparison. In the third paragraph, the profile of one of the unknown contributors, individual H, has been determined. And then the third contributor is not suitable for comparison due to the low level. So the proportions of the contributors to this mixture are slightly different to the other mixture. So there is a proportion that from which Fred Byrne cannot be excluded, the DNA profile matching Fred Byrne cannot be excluded, and there's a second contributor as well. And a third contributor is not suitable for comparison due to the low level of that third contributor."
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).
Ms Sesardic was then asked about the statistical strength, after using this program, in relation to the Applicant (T189): "Q. When you say you used a program to come to the conclusion that Fred Byrne can't be excluded. You talked about statistical - used the term statistical strength. Can you say anything about what the statistical strength after using this program was in relation to Mr Byrne? A. Yes. So initially the senior biologist and another senior biologist and myself assessed the mixture, and then this program will then be used to carry out the statistical strength. And the statistical strength has been provided, and it's used by looking what is a probability of getting this profile if it originated from Fred Byrne and two unknown unrelated individuals. It's also then compared to what is a probability of getting this profile if it originates from three unknown unrelated individuals in the Australian population. And the resulting statistic is that assuming there are three contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Fred Byrne, and two unknown unrelated individuals, rather than if it originates from three unknown unrelated individuals in the Australian population."
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).
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).
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).
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): "So this particular profile is again a DNA mixture from which it's been determined that the mixture originates from at least three individuals. This mixture has two contributors which are suitable for comparison, and from these two contributors, the DNA profile of Fred Byrne and Dillon White cannot be excluded. So the DNA types of Fred Byrne and Dillon (sic) White are represented in this mixture, and those two references cannot be excluded as contributors. Due to the mixture itself, DNA testing - further work can be carried out if the statistics are required. So the statistical program has not been carried out for that particular mixture, but can be carried out if required to provide a DNA statistic. The additional contributor is not suitable for comparison due to the low level."
In relation to R26 (a tape lift from a black shirt), Ms Sesardic was asked by the Crown (T191): "Q. R26 was a tape lift in the - from a black shirt and this time, your - you say that the DNA recovered has the same profile as Fred Byrne and then you give the statistical probability. How does that differ from the - the other two results, being 'major contributor' and 'cannot excluded from'? A. For this particular result, there - it is a single source DNA profile, so the DNA recovered has the same profile as Fred Byrne and a - a mixture has not - I apologise, that's the - that's the overhead speaker in the laboratory - that is a single source DNA profile and that has the same profile as Fred Byrne and the statistic has been calculated in a very similar way to the major contributor having the same profile as Fred Byrne. The DNA types present are the same as the DNA types recovered from the reference sample from Fred Byrne. Q. So does that mean that the - the strength of it - and correct me if I'm wrong, is the same, it's just that we don't have any other people in the mixture? A. The - this is a single source profile and a mixture was not recovered and the statistical strength, the cut off is the same, a - it is - the 100 billion is the figure provided for that particular statistical strength."
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).
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).
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).
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): 1. Trace DNA: "In my experience, when there is blood or semen; blood or semen are very rich sources of DNA, and if there is one - for example, a blood stain, it is more likely to obtain a single source DNA profile, and semen is slightly different because we have a specific extraction technique that's specific for semen. So they are often single source DNA profiles and they are a very rich source of DNA. So in my experience I would say that when targeting trace DNA, or items that may have been handled by several different individuals, it is more likely to obtain a DNA mixture" (T193). 2. DNA transference: "I'm not sure of the specific examples, but yes DNA can be transferred through a variety of different ways, directly, indirectly, through talking, sneezing, coughing. So yes DNA can be transferred. It's more likely that if you have a significant amount of DNA, it can then get transferred, and that subsequently after that, and also for example if it's a wet stain, studies have shown that a wet stain may transfer more times than a dry stain, for example. So there's a large amount of variables that affect DNA transfer" (T194). 3. Primary and Secondary transfer: "Because the DNA transfer is so variable, you may be able to transfer a large amount of DNA, and then there would be secondary transfer which would still have a large amount of DNA, or there may be a very small amount of DNA that's transferred. So because there's a large variability of DNA transfer, it's not possible to say whether that DNA has been transferred directly or indirectly" (T194).
Ms Sesardic also said (T195): "There is an amount of DNA that's transferred originally, and that's really essentially the best way to transfer DNA on to an object, the most efficient, it's the direct way to transfer, but then after that at each stage, at each step DNA is then lost. So you are not able to recover as much DNA from a secondary transfer step as much as the primary transfer step. It may be a variety of different amounts."
In cross-examination, Ms Sesardic was taken to the report of Ms Gerhardt and she accepted the following propositions (T195-198): 1. Biological fluid testing was not carried out by the laboratory for this matter. 2. Particular biological sources of DNA may be rich sources of DNA such as semen, saliva or blood, or porous sources. 3. It is not possible to say whether there is a smaller amount of a rich source of DNA, or a very large amount of a poor source of DNA recovered. The DNA testing determined how much DNA is present, and that is one stage. 4. There have been studies that have shown that the major contributor may be an individual who has had previous contact with an item, and not necessarily the last contact. 5. As opposed to a biological source such as saliva or blood, which has a lot of cells in it, sweat would act as a vector to remove the DNA cells - the cells themselves. What was being referred to with the wet source is that if, for example, there is blood on a table - so that is a non-porous surface - that is far more likely and more readily transferable than a dry source of DNA. 6. Some individuals do have a propensity to shed more DNA. However, that is shown to be quite variable itself. Some people - it may be differing between the same person and the different parts of the day and for example, their habits. If they recently washed their hands, for example, it is less likely that that individual will transfer DNA or conversely, if someone frequently touched their face, their eyes, their mouth, they would load up their hands with their own DNA and then that will be more likely to then transfer their DNA from their hands. 7. DNA testing is highly sensitive, there are various procedures in place to minimise the transfer of DNA from one exhibit to another. Mrs Helen Roebuck
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).
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).
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).
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

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.
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.
Early in the trial judgment, her Honour identified the real issue in the trial in the following way (pages 1-2): "In this case, the fact in issue is not whether the Crown can prove that there was an armed robbery at the golf club, and it is not whether the Crown can prove that Mr Gardner and Mr Lavelle were each detained. Nor is it that there are a number of perpetrators who committed both the armed robbery and the detentions in company. But, the issue is whether the Crown can prove beyond reasonable doubt that the accused was one of the perpetrators. Having regard to the fact in issue as between the parties, it is the case that each of the verdicts will be the same. The Crown bears the onus of proof with respect to each of the essential facts. The Crown must prove each essential fact for each count beyond reasonable doubt."
Her Honour summarised the Crown case in the following way (pages 2-4): "In a nutshell, the Crown case is that the armed robbery took place on the night of 12 November 2017 at about 9pm. The two victims were in the process of locking up the club for the night, and they were the only staff still present at the club. The external doors were locked, and one of the men rang a private security officer, who was going to escort them to their cars. A rock was thrown, from outside the club, at a glass door at the rear, breaking the glass. Five men, including the accused, entered the club. The Crown case is there were five robbers, acting pursuant to a joint criminal enterprise, the aim of which was to steal from the club. The robbers carried weapons, including machetes, an iron bar and a sword shaped object. The robbers were disguised by wearing hoodies, and what looked like shirts tied by the arms across their faces. They also wore gloves, or other coverings, on their hands. The Crown case is that one of the men yelled 'Get on the ground or I'll fucking kill you'. Mr Gardner was struck on the left shoulder with a machete. Threats to kill the men were made, and Mr Gardner and Mr Lavelle were forced to the ground. Their hands and feet were bound by cable ties. One of the robbers stood on the head of Mr Gardner. His mobile phone and his wallet were stolen. One of the robbers demanded access to the safe and the ATM machine. A security officer, Mr Walker arrived; he approached the front door. One of the robbers yelled 'security' and 'get the cunt'. Two of the robbers kicked at the door, cracking it. Mr Walker, the security guard, returned to his vehicle. The five robbers then left through the broken rear door, and ran through the golf course toward an area called The Wetlands. Mr Gardner's wife was driving nearby, and she used a phone application to trace her husband's phone. The phone was found in a paddock on Rosewood Avenue, Casino. On the morning of 13 November, a search of that paddock yielded a number of items, including Mr Gardner's stolen wallet, cable ties, clothing, shoes and gloves. Some glass particles were found on one of the shoes. It is the Crown case that the items were left by the robbers as they fled the scene. The items found in the paddock were analysed for the presence of DNA. DNA that bore the same profile as that of the accused was found on a number of the items. The Crown case is that the robbers came from Kempsey and drove to Casino. They travelled in a white car that was registered to the mother of a Christopher Donahue."
The trial Judge summarised the defence case as follows (page 4): "The case for the accused is that the accused was not one of the robbers. At the time the offences occurred, he was at home at 7 Horatio Braham Place, South Kempsey. The accused has served an alibi notice to this effect. The case for the accused is that the DNA matches can be explained by a process of secondary transfer and or by contamination. The case for the accused is that he was in the habit of sharing clothes with friends and family, and that fact is capable of explaining the presence of his DNA on various items of clothing and shoes. The case for the accused is that he does not fit the description of any of the robbers given by the victims or the security officer or, indeed, shown on the closed-circuit television footage."
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).
Her Honour referred to the evidence of Mr Gardner, Mr Lavelle and Mr Walker (pages 5-15).
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): "I have viewed the footage several times, twice in open court, and then again after I retired to consider my verdicts. I have also looked at the stills a number of times. It is my view that the footage is not of particularly good quality, and the quality varies as between cameras. The footage is mostly in black and white, and some of the footage has a green colour, or tinge, to it. I am of the view that the descriptions that appear in exhibit H accurately describe what can be seen. I can draw limited conclusions. I draw the following conclusions. In my view, there are five separate people shown in the footage. The five are clearly shown in item two of Exhibit H. Each of the persons shown appears to have a thin or skinny build. All of the persons shown are wearing what look to be dark pants and darkish tops, although one such top does appear to be lighter in colour. One can see hoodies with hoods up over heads, and what look to be white draw strings at the neck area. One figure wears a two tone top with lighter coloured arms and a darker middle section. This item is consistent with the item shown in photos 78 and 89. The top features in items 11, 12 and 13 of Exhibit H. Several figures seem to be wearing coverings over their heads and face that do not look like hoodies, but rather resemble other items of clothing, or cloth, of some description. Runner or jogging type shoes with white soles are shown on some of the figures. Item 15 shows two men, one is wearing runners with a black upper section and white soles. The other man's shoes appear either all white or light coloured. It is not possible to see the shoes of other figures, including the figure with the backpack, seen in the dining area and wearing a lighter coloured hoodie, item 16 on Exhibit H. In item 18 the figures are seen running away, four figures run off and then a fifth follows some short distance behind. Weapons can be seen, especially one weapon that looks like a pole of about a metre in length. I cannot specifically see any machetes. One figure wears a backpack on his back. That person also appears to be wearing a lighter coloured hoodie."
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): "According to Officer Light, Casino is about three-and-a-half to four hours' drive by car from Kempsey. If Mr Byrne was one of the robbers, he would have to have travelled to Casino from Kempsey after 9.37am on 12 November and he would have to have returned to Kempsey by 9.13 am the following morning. One strand of the Crown's circumstantial case is that a white car registered to the mother of a Christopher Donahue, but being driven by Christopher Donahue at the relevant time, was a car that conveyed some or all of the robbers to Casino from Kempsey. Christopher Donahue is linked to the robbery, by the evidence that some items found at the paddock bore DNA that matched Christopher Donahue's DNA profile. There were also a number of other items found at the paddock that matched profiles of other named persons, who are also from Kempsey. The Crown case is that a number of these persons travelled in the car to Kempsey, committed the robbery, and then travelled back to Kempsey. The particular vehicle is a white Commodore registered CN72EL. It was registered to a Penny Maree Laing of 10 Eric Kennedy Street, West Kempsey. Officer Light became aware that her son, Christopher Donahue, had used the vehicle in the past and police issued traffic infringements to him when he was driving the car on 7 November, 15 November and 26 November. The vehicle was tracked, travelling from the Kempsey area at 2.07pm on Sunday 12 November 2017. It entered Casino at 5.54pm; the robbery occurred at 9pm. The vehicle was seen returning to the Kempsey area at 7.40am on Monday 13 November. It takes about three-and-a-half to four hours to drive from Kempsey to Casino. The vehicle was tracked using the Roads and Maritime service point to point cameras. Closed-circuit television footage shows the vehicle at a number of points. It must be observed that in so far as Officer's Light's estimate of how long it takes to travel between Kempsey and Casino, much would, of course, depend upon the speed that the vehicle was travelling. Exhibit C is a table with attached still photos showing eight different places where the vehicle was seen, and its image was captured by closed-circuit television footage. The Crown case is that the robbers were in the car. I have viewed the footage. I can discern three occupants, one in the front passenger's seat, one in the rear passenger's seat behind the front passenger and by inference, a driver. I am not ruling out the possibility of more occupants; I simply have no view of the driver's side or the rear of the car and, accordingly, I cannot rule out that there were more occupants, at that particular point. Officer Light has also given evidence to the effect that Christopher Donahue and his mother discussed the fact that police were investigating the use of the car in the robbery. Police intercepted the phone of Christopher Donahue. His mother expressed alarm at media reports, stating the police were interested in finding out who was driving the car on the date of the robbery. Christopher Donahue told his mother to be quiet and to stop texting him. There are no intercepted calls between the accused and Christopher Donahue. There was one between the accused and a person by the name of Dylan White. He is another man, whose DNA profile matched DNA found on clothing found in a paddock. Christopher Donahue is an Aboriginal man born in 1990. Elwin Roberts is an Aboriginal man born in 1995 and Mark Kennedy is an Aboriginal man born in 1996. Dylan White is an Aboriginal man born in 1991. Each of these men can be linked via DNA to items found in the paddock. Each of these men, at the relevant time, lived in the greater Kempsey area, from where the white car travelled and returned. On 23 February 2018 the accused was arrested. He was spoken to by Officer Light. He said that he could not recall the last time he had been in Kempsey. He also said that he knew the persons Christopher Donahue and Mark Kennedy, but not well, see transcript p 42. I must say the evidence here is somewhat unsatisfactory, as the question asked of Officer Light was whether the accused said he knew the four people, the four named people, but what Officer Light then went on to say was, in effect, that the accused said he knew Christopher Donahue and Mark Kennedy though not well. No reference was made in the answer to whether the accused agreed that he knew the four named men, see transcript p 42 at line 25. This answer was not clarified."
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): "Accordingly, I am only prepared to accept that the accused said he knew Christopher Donahue and Mark Kennedy. I am not prepared to accept that he said he knew the other two men, Dylan White and Elwin Roberts. It is for the Crown to disprove an alibi. In this case, the evidence does not provide an alibi. The evidence establishes that the accused did have an opportunity to commit an offence. The evidence shows that the accused, along with others, including Christopher Donahue, could have travelled in the white car to Casino, after the accused got his medication. They could have committed the robbery at 9pm and travelled back to Kempsey, in time for the accused to receive his medication the next day. The fact that the accused lived in Kempsey, along with others who can be linked to the robbery via DNA, and the fact that he knew two of these men, is circumstantial evidence in the Crown case."
The trial Judge then turned to consider items located in the paddock and the DNA evidence. When doing so, her Honour said (page 21): "It is necessary to examine each of the items found, but before I do so, I intend to make some general findings. The area where the items were found is shown at pp 3 and 4 of Exhibit B, as well as aerial photo at p 29. The paddock is about two kilometres from the golf club. At that location, police found the wallet and phone stolen from Mr Gardner. The phone was found on the night of 12 November. The other items were found on the morning of 13 November. Page 30 of Exhibit B shows approximately where various items were found. It records that most items were found close together, except for a pair of long pants and a grey blue shoe, which were found closer to the road. The area shown in photographs is in an area where there is long grass and other vegetation. Some of the items are not easy to see, due to the long grass."
Her Honour referred to the evidence of the search of the paddock and the location of items in that place (pages 21-23).
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): 1. Item 631 (a right yellow and grey jogging shoe); 2. Item 637 (a left shoe); 3. Item 633 (a left grey and blue Velcro high-cut Crane brand shoe); 4. Item 630 (the right shoe of the Crane boot); 5. Item 250 (a black right shoe with white sole of a Nike brand); 6. Item 248 (a left black Nike shoe with a white sole); 7. Item 242 (an Everlast grey hooded jumper with tracksuit pants and zip-up top); and 8. Item 246 (a dark blue hooded jumper with the words "Athletic Dept 1983 High School Sport Equipment Berkeley Cal" printed in white across the front).
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): "The presence of DNA on nine different items of clothing, that bore a profile matching that of the accused, is a major strand in the Crown's circumstantial case. It might be said to be nine separate strands, or one very thick strand. The case for the defence is, in essence, that the accused's DNA can be explained, other than as showing that the accused was wearing the items during the robbery. The alternative explanation is that the accused was in the habit of sharing clothing, or the DNA might have been transferred onto each of the items via a process of secondary transfer or by a process of contamination. The physical items, where DNA was found that matched the accused's DNA profile, have been tendered. The evidence, given by the DNA experts in this case, comes from … Ivana Sesardic, who was called in the Crown case, and by two witnesses for the defence, Helen Roebuck, who is the principal forensic biologist at Independent Forensic Services in North Parramatta. She and Ms Jay Gerhardt run the consultancy service, which reviews DNA in criminal cases. Ms Gerhardt's report is Exhibit 9. Ms Roebuck peer reviewed Ms Gerhardt's report. Overall, the DNA experts are in substantial agreement. Based on all of the evidence, I can make the following findings. I note that none of the findings I make in relation to DNA, generally, are controversial, and all or most of the findings that I make are now well known and well accepted."
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): "The findings I make are as follows. Firstly, there are a number of sources of DNA, including bodily fluids and skin cells. Secondly, trace DNA with which we are concerned in this case, is DNA from which it is not possible to identify the type of cells from which the DNA originates. Nor is it possible with trace DNA to infer, regardless of the amount of DNA present, or the height of the profile, whether that profile is from direct contact or indirect contact, also known as a secondary transfer. That is a fact, regardless of whether it comes from a single source, or whether from a mixed source. Thirdly, the inside cuffs of a shirt or jumper, the inside neck area of a shirt or jumper, the inside palm area of a glove, and the inner sole area of a shoe are the best areas to target for trace DNA. That is because these areas are more likely to come into contact directly with a wearer's skin. Fourthly, the most likely source of the DNA recovered in this case, from the clothing, would be transfer from skin cells to the clothing. Sweat is not itself a biological source of DNA, but it can act as a carrier or vector of skin cells and thus, sweat can carry DNA onto an item. Fifthly, it is possible that a person can wear clothing, but not deposit DNA onto it. Sixthly, it is possible that even if DNA is deposited, it may not be recovered. Whether DNA is recovered depends on a number of factors, including the amount of DNA deposited, and environmental factors, including whether the item of clothing has been washed after the DNA was deposited. Seventhly, where DNA is recovered, there is no telling when it was deposited. DNA may persist for days, weeks, months, or even years. So, the presence of a person's DNA does not indicate recent wear of the relevant item. Eighthly, where DNA is deposited, there is no way of telling how it was deposited, whether it was by way of direct transfer or secondary transfer. Ninthly, where there is a mixed DNA result, there is no way to tell whether the transfer of DNA took place at the same time, or at different times. Tenthly, significantly in this case, the presence of DNA on a piece of clothing does not necessarily indicate that the DNA was deposited by wearing the item. It can be transferred directly from the wearer to the item, it can also be transferred by way of secondary transfer. A person's DNA may have been transferred onto an item even though the person has never worn it, for example, by a person touching another person, who then wears or touches the item. Eleventhly, the most efficient way to transfer DNA onto an item is by direct transfer, for example, touching or, in this case, wearing an item that comes into contact with the skin of the wearer. The DNA can then be transferred in secondary transfer, for example, by the item touching another item of clothing and transferring the person's DNA onto that item. Secondary transfer can take place a number of times. As secondary transfer occurs down the line, it is not possible to recover as much DNA. Less DNA is able to be transferred each time that a transfer occurs. Twelfthly, where the DNA is deposited by wearing the item, the presence of a person's DNA on clothing does not necessarily mean that the person was the last wearer of the item, even where that person is the major contributor to a DNA mixture that is recovered. Another person may have worn the item and not left any DNA, or that person's DNA may not have been recovered. People also shed DNA at different rates. Some people are good shedders, others are not. A good shedder is obviously more likely to deposit DNA. The thirteenth finding that I make concerns Ms Roebuck's evidence. Ms Roebuck agreed that the longer a person wears a garment, the more likely that person will deposit DNA onto it. The fourteenth finding is that the statistical strength was not provided for some of the items. The reason it was not provided for R25, the inside of the left glove, is because the statistical strength was provided for the right glove, R24 and the statistic for R25 is the same as it is for R24. The fifteenth finding is that, where the statistical strength was provided, it was expressed as greater than 100 billion times that the DNA came or originated from the individual named, and that is the highest possible strength or likelihood. It represents a cut-off point, such that no greater likelihood ratio can possibly be provided. The sixteenth finding is that in the government laboratory it is the practice of the analysts to 'double glove', that is, wear a primary pair of latex gloves and then change and outer set before handling each exhibit. This is because DNA testing is highly sensitive. The police, who handled the items in this case, did not double glove. The seventeenth and last, relevant, finding is that Ms Gerhardt conducted a thorough review of the analysis and the report provided by the Crown's DNA expert, and she had recourse to the entire case file. She made some very minor comment or criticism. That criticism was that she is of the view that the relevant guidelines require that DNA results must be accompanied by associated statistics. Ms Sesardic, at transcript p 199.24, said that the statistics do not have to be listed in the report, and the statistics can be provided if required. The only result that is not accompanied by a statistic is R41 from item 640, left glove, black in colour. Clearly, in this case, no request has been made for the associated statistics, however, neither party has made anything of that fact in their respective addresses to me."
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): "I now turn to my findings in this case. Because the Crown case is a circumstantial one, I must consider each circumstance, and then consider, or take all of the circumstances together, and ask myself whether the Crown has proven, beyond reasonable doubt, that there is no reasonable alternative other than the accused's guilt. There is one aspect or circumstance, however, that is an indispensable fact, or link, in the Crown's case, and it must be proven beyond reasonable doubt. That circumstance is whether the items found, in what has been described as a paddock, are related to the robbery, in that these items were discarded by the robbers, as they fled the scene. Clearly, this is an essential or indispensable, intermediate fact, in the sense that the Crown case relies upon the clothing, as clothing being worn by the robbers, including the accused. The Crown must, therefore, prove this fact beyond reasonable doubt. If I am not satisfied that the items were placed in the paddock by the robbers, then the Crown case fails, and I proceed no further. The evidence, generally, is that on the night of 12 November, some reasonably short time after the robbery had taken place, the mobile phone of the victim, Shawn Gardner was found in the paddock. The searching officers on the night did not locate the various items of clothing, the cable ties and other items that were subsequently found the next day. On the morning of 13 November, when these other items were found, no crime scene was established, because officers feared that it was about to rain."
Her Honour then made the following finding which was not challenged by counsel for the Applicant in this Court (page 35): "I am satisfied, beyond reasonable doubt, that the items found in the paddock had been worn by the robbers, or were taken from the victim, in the case of Mr Gardner's wallet, or used during the course of the robbery, in the case of the cable ties. I give the following reasons for making this finding."
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): "Firstly, the proximity of the paddock where the items were found, to the golf club where the robbery occurred. The paddock is only about two kilometres away from the golf club. Secondly, the fact that the robbers fled generally in the direction of that paddock. Thirdly, the fact that proceeds from the robbery, namely Mr Gardner's phone and his wallet, were found in close proximity to the clothing. Fourthly, the fact that cable ties were found in the paddock, and cable ties were used in the robbery. Fifthly, even if one accepts that this is a place where rubbish might be thrown, many of the items do not seem like items that might be thrown away as rubbish. This is particularly the case, in my view, when one has regard to the Crane boots, the hoodies and the Cyclone gloves; these items in particular appear in quite good condition. Sixthly, there is evidence that it had been raining in the days leading up to 13 November 2017. Although rain was threatened on the 13th, the evidence is that it had not, in fact, rained. The items recovered were not wet. Seventhly, the fact that some items resemble, in a general sense, items seen on closed-circuit television footage, or described by the victims, namely dark coloured hoodies, runners and gloves. Further, one piece of clothing bears particular similarity, namely the item shown in photos 78 - 89, which is a top that I would describe as a two tone top with long black arms and a brownish body. A very similar item is shown in closed-circuit television footage and stills, see defence Exhibits 3 and 4. And further, Mr Heffernan [the prosecutor] has taken me to specific items found, that he says are similar to items shown in the closed-circuit television. First, there is a dark sleeved jumper, shown in photos 88 and 89, similar to that worn by a robber, as seen in footage and summarised in Exhibit H at item 5, and then there are Nike Air shoes shown in photos 17, 20 and 21; these are similar to shoes as seen and worn by a robber in item 15 on Exhibit H. The eighth and final reason that I give for making this finding, beyond reasonable doubt, is the fact that a black right Nike Air shoe with white sole, which was found in the paddock, contained four glass fragments in the inner sole, and the bottom sole contained twenty glass fragments. A comparison of the glass with glass collected at the club, where the door was smashed when it was kicked by at least one of the offenders, concluded that there is 'moderately' strong support for the proposition that the wearer of the shoe was close to, or in contact with, the breaking or broken glass found at the golf club, see Exhibit T.
The next part of the trial Judge's reasoning was also not challenged by counsel for the Applicant. Her Honour said (pages 36-39): "I turn now to the more difficult task of determining whether the Crown has proven that the accused was one of the robbers. From all of the evidence I draw the following conclusions. Firstly, there were at least five offenders. Secondly, the accused does bear some physical resemblance, in terms of his build and his height, that does fit generally with descriptions given by the victims. He is just over five foot seven and he is skinny. In that respect, he does not fit the description of the man who was doing the ordering, as described by Mr Gardner, and he is clearly not tall enough to be that offender, who appears to be the man with the machete, who had his foot on Mr Gardner's head. Contrary to the Crown's submission, I find that the boot, as described by both the victims, but most particularly by Mr Lavelle, does not fit the Crane boots that bore DNA, that matched the accused's DNA. It must here be observed that Mr Gardner and Mr Lavelle did not see all of what took place. Mr Walker did not see all of what took place, either. He came upon the scene at a time not long before the robbers fled. It is clear from the footage that offenders were present in places where the victims were not making observations; this is clear from the footage, which depicts events in the dining area and poker room and, of course, outside and, just as the eye witnesses did not see everything, the closed-circuit television footage does not depict all of what happened and all of the movements of all of the offenders. For example, it did not capture the events wherein the victims lay on the floor and were tied up with cable ties. It cannot be concluded that each of the five, or possibly more, offenders is depicted in all the footage. It must be concluded that, of those who are depicted, some are better shown than others. In particular, two of the three are shown in item 5 of Exhibit H are better depicted than the third. The man wearing the backpack and the lighter coloured hoodie is not well depicted in any footage. Thirdly, some observations made by the witnesses were made in lighting that was not good and, clearly, there was a degree of chaos. Clearly, none of the three eye witnesses describe seeing a backpack, at all. The observations of the witnesses were limited by their particular vantage point, by the available light, and the chaos and obvious stress involved in the incident. The fourth finding I make is, however, that Mr Gardner did describe a person on the left, who he said was wearing a T shirt tied around his face. Two such items were found at the paddock, both items were tied in a knot. In my view, the accused may well have been wearing such a shirt, or even shirts, tied around his head and face. The black and purple shirt, item ending in 246, had the accused's DNA on it. Item ending in 240 is a long sleeved shirt, the accused's DNA was found on it, and he is the major contributor to the mixed DNA result. The fifth finding I make is that both Mr Gardner and Mr Lavelle described the voices they heard as Aboriginal, and each of them is well accustomed to such voices. Accordingly, in my view, each of them is well able to offer such an opinion. This is a circumstance that the Crown relies upon. The age estimates of the voices do not fit this accused, who is older, but it is also to be observed that the reasons advanced for this age estimate primarily rely upon chaos that the witness felt was taking place amongst the robbers. Such an estimate can never be decisive and, given the circumstances, I do not place a great deal of weight on the age estimate of the voices. My sixth finding concerns the closed-circuit television footage. I have already warned myself of over reliance on footage that is, in the main, of reasonably poor quality and of course, in black and white. The seventh finding I make is that it cannot be concluded that, from a combination of the eye witness descriptions and the closed-circuit television, that everything has been captured. Nor can it be concluded that each of the offenders is shown, at all, by that combination. It is entirely possible that an offender is not depicted or described, at all. If I accept that there were five offenders, item 17 on Exhibit H is footage that does show all five fleeing from the club, however, this particular footage is not clear and is at some distance, and it shows very little detail. My eighth finding is that, in my view, it is highly likely that the offenders did come to Casino from Kempsey in the white car. I draw that conclusion from the fact that the DNA of Christopher Donahue was found on some of the items of clothing found at the paddock, and from evidence that the car was seen, as it was travelling to Casino, at or around relevant times. Ninthly, DNA matching that of Elwin Roberts and Dylan White was recovered from items of clothing found at the paddock. The accused is also from Kempsey. The accused knows Christopher Donahue and Mark Kennedy."
Counsel for the Applicant challenged the trial Judge's tenth, eleventh and twelfth findings (pages 39-40): "The tenth finding is that the DNA evidence is particularly strong evidence against the accused. The Crown submits that the DNA evidence becomes stronger with every DNA match. Mr Heffernan submits that the DNA evidence has a cumulative effect, and that the Crown case becomes stronger with every DNA match to the accused. He submits that the weight of the DNA evidence increases exponentially with every DNA hit. This submission, in my view, must be accepted. Eleventhly, there is a possibility that the accused's DNA got onto an item by the item being contaminated. I do not consider that this is likely to have taken place during the collection or handling of the items by police; it is at least theoretically possible that an item has rubbed another, thereby transferring the accused's DNA from one item to another. In my view, this is less likely to have taken place, having regard to where the tape lifts were taken from, namely, the inside of a garment, glove or shoe. It is possible that the DNA was transferred onto the various items by secondary transfer, for example, by the accused touching the hand of someone, who later touched the item. Again, in my view, this is less likely, having regard to the area of tape lift. It cannot be gainsaid that, where trace DNA is found on the inside neck or back area of a shirt and hoodie, or on the inside of two shoes, particularly boot style shoes, and on the inside palm area of three gloves, and on the inside waistband area of a pair of trousers that, as a matter of common sense, it is more likely that the DNA got there by primary transfer, from a wearer transferring skin cells to the area, rather than by someone touching the item, and all of the items having previously touched the accused. Again, the Crown's submission must be accepted. This likelihood increases with every DNA hit. It is far more likely to be the case that the person, who deposited the DNA, was wearing the item, in my view. In other words, I accept the Crown's submission that, having regard to the areas upon which DNA was found, it is more likely that the DNA was deposited by direct contact rather than by secondary transfer. My twelfth finding is that I accept that people, including the accused, share clothing and, of course, there is no way of telling when DNA was deposited, or whether the depositor was the last person who wore the item. However, once again, there are nine separate DNA hits in this case, and as Officer Light observed, the hits collectively make up an entire outfit; two shirts, one or perhaps both tied around the head and face, two shoes, three gloves, one perhaps worn as an inner glove, one hoodie and one pair of trousers. The Crown case becomes stronger with every DNA hit, in other words, while one match might be explained by secondary transfer, that possibility becomes less likely with each match, and even less likely, having regard to the fact that an entire outfit is represented, or found, at the place where the offenders dumped their clothes, and two T shirts were tied in such a way as to coincide generally with what Mr Shawn Gardner observed."
Counsel for the Applicant did not challenge the thirteenth finding made by the trial Judge (pages 40-41): "The thirteenth finding concerns the submission by Mr Watts, on behalf of the accused. He, picking up on Officer Light's observation that the accused's DNA can be found to be on an entire outfit, submits that the Crown, in order to prove its case, must be able to identify the accused by reference to that outfit. Mr Watts asks, rhetorically, which offender does the Crown say is the accused? That submission, in my view, misapprehends the Crown case. The Crown is not, and could not, submit that the accused can be identified from the footage, or by the witnesses, or by a combination of the footage and the witnesses. The quality of the footage, the nature of the witnesses' evidence, and the fact that that evidence, in combination, does not cover the field, precludes such an approach, in my view."
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): "The Crown case is circumstantial relying heavily upon DNA evidence, but the Crown case is not one where there is any reliance upon evidence that the accused is identified directly, nor is it the case that the Crown must be able to identify what Mr Watts referred to as an 'identikit' of the accused, based primarily on the items that bear the accused's DNA. This submission simply overlooks the fact that the footage and witnesses' observations are not comprehensive. Similarly, the submission that, 'there's nothing to say that the gear dumped corresponds in any way exactly with the clothing worn on the exterior of the five offenders', overlooks the fact that the footage and witnesses' descriptions do not constitute the entire Crown case. I accept, of course, that no witness describes an offender wearing all of the clothes that bear DNA matching that of the accused, and I accept that no witness describes seeing the blue hoodie with white writing on it, and it is not specifically seen in the footage. I accept that no witness describes seeing the orange gloves, and that they are not specifically shown in the footage and, as I have already observed, I accept that the person who held his boot on Mr Gardner's head and seemed to be directing proceedings, is unlikely to have been the accused, and I accept that the man wearing the two tone top, as seen in items 10, 12 and 13, is unlikely to be the accused. Nevertheless, in my view, the Crown's circumstantial case is a strong one, having regard to the fact that there were nine separate DNA matches to the accused, and that an entire outfit is represented. I am satisfied, beyond reasonable doubt, that there is no reasonable possibility that the accused was not one of the robbers. I find beyond reasonable doubt that the accused was present, and did participate in the offences, along with a number of offenders. I cannot, and need not, identify which offender he was, or what he did, but I am satisfied beyond reasonable doubt that he was one of the offenders, and he, pursuant to a joint criminal enterprise, committed an armed robbery and detained each of the victims. Accordingly, I find the accused Fred Byrne, guilty of each count on the indictment."

Submissions for the Applicant

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.
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.
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.
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.
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.
Counsel accepted that the evidence permitted a finding that there was an opportunity for the Applicant to have been involved in the offences.
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.
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.
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.
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.
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]: "On Dr Henry's evidence, including that extracted above, the prosecution's main contention, that the appellant's DNA in Sample 3B derived from the appellant's blood, was not made out beyond reasonable doubt. Secondly, Dr Henry's evidence was not that secondary transfer of DNA was 'rare'; rather, she said that a primary transfer is a much more likely source of contact or trace DNA than a secondary transfer, but that nevertheless a secondary transfer of contact or trace DNA is possible. There was no conflict in the evidence that there were at least two distinct occasions, described above, on which a secondary transfer of the appellant's DNA to the didgeridoo may have occurred. Thirdly, the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. For those reasons, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt: M v The Queen (1994) 181 CLR 487 at 493-494; 69 ALJR 83]. Alternative hypotheses consistent with the appellant's innocence, in particular the hypothesis that Sumner transferred the appellant's DNA to the didgeridoo on Sumner's first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them. As the evidence was not capable of supporting the appellant's conviction for either offence, no question of an order for a new trial arose."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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: "Generally, when individuals have been in direct or indirect contact with each other in social or household environments, the possibility that secondary transfer of DNA occurred will be considered reasonable."
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.
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.
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

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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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

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.
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).
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.
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.
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.
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.
Particular emphasis was placed by Mr Fraser upon what were said to be reasonable hypotheses consistent with innocence which arose in this case.
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.
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.
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]): "66 The High Court [in Fitzgerald v The Queen] set aside the conviction on the statutory basis sought to be invoked by Mr Sloan in this case. The Court stated that the relevant issue was not whether it was the appellant's DNA on the didgeridoo but 'when and how the DNA got there' (at [27]). Given that in Fitzgerald it was accepted that secondary transfer was possible and that there was evidence of at 'least two distinct occasions' in which a secondary transfer may have occurred the Court accepted that the presence of the appellant's DNA did not 'raise any inference about the time when or circumstances in which the DNA was deposited' (at [36]). It followed that an alternative hypothesis consistent with the appellant's innocence, namely secondary transfer, was not unreasonable and had not been excluded (at [36]). 67 However Fitzgerald does not assist Mr Sloan. As noted by the Crown, no possibility of secondary transfer arose in this case in relation to the stocking. There was no evidence proffered of any occasion when secondary transfer could have occurred. The possibility of secondary transfer onto the stocking was rightly disclaimed by Mr Sloan's Counsel during the trial. Otherwise for the reasons stated the totality of the evidence did not raise an alternative inference about the circumstances in which Mr Sloan's DNA was deposited onto the stocking to that contended for by the Crown."
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).
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.
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): "46 The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said: 'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.' 47 For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal."
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

The Applicant has not made good his sole ground of appeal against conviction. There is no ground of appeal concerning sentence.
Having regard to the issues raised in the appeal, I would grant the Applicant leave to appeal, but dismiss the appeal.
I propose the following orders: 1. grant leave to appeal against conviction; 2. appeal against conviction dismissed.
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.
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.
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.
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.
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.
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.
I agree with the orders proposed by the Presiding Judge.

Endnotes

See Exhibit H, Item 5 between the times 21:11:23 and 21:11:29.
Tcpt, 4 April 2019, p 78(11) - p 79(2);Tcpt, 8 April 2019, p 234(37-9). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2020

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