On Monday 31 August 2019 the tenant of factory at 131 Five Islands Road, Cringila returned to find the large gate at the premises had been removed from its hinges. His shed had been broken into. Tools and equipment worth about $5,000 had been stolen from it. Next to the gate was his large shifting spanner. He recognised it as his own; when he left the premises the Friday before, the spanner had been inside the shed.
A Crime Scene Officer (CSO) attended and photographed the spanner where it was found. A tape lift was taken from the handle. That tape lift was sent to the NSW Forensic Science Service (FASS) for processing and DNA analysis. The CSO found not identifiable fingerprints on the spanner or at the scene.
On 6 October 2020 Danny Camara went to Lake Illawarra Police Station. He was asked about the break and enter. The arresting officer noted that Camara "appeared to be confused and did not know what I was talking about."
Camara was arrested and charged with break enter and steal at the Five Islands Road property: s 112(1) (a) Crimes Act 1900 (NSW). He consented to a buccal swab DNA sample being taken from him. That sample was sent to FASS for analysis.
On 11 February 2021 Mr Mahoney, a FASS analyst, provide a report that set out the results of his comparison between the DNA profile from Camara and that obtained from the tape-lift of the spanner.
"The DNA recovered is a mixture that originates from a least three individuals. The major contributor to this mixture has the same profile as Danny Camara. It is greater than 100 billion times more likely to obtain this major profile if it originates from Danny Camara, rather than if it originates from an unknown, unrelated individual in the Australian population. The DNA from the minor contributors is not suitable for comparison due to the low level and complexity."
Attached to Mr Mahoney's results was an Appendix setting out an overview of the procedures and methods used in forensic biology/DNA laboratory, NSW FASS.
Mr Camara said he was not guilty of the charge. The defence consented to the tender of the prosecution brief. None of the facts outlined above were put in dispute. The charge sheet indicates Camara lived in Cringila about 20 minutes' walk from the factory.
Camara gave evidence. He accepted he lived nearby. He denied entering the premises or taking the property. He did not recognise the spanner. It was not his, as all his tools were well cared for. He said in September 2020, about two weeks before his arrest he had been working on a car at a friend's place in Merrett Avenue Cringila. Merrett Avenue runs behind, and parallel to, the factory in Five Islands Road. He had left some property there and it had been stolen. That property included motor cycle gloves and a helmet. He had not reported the theft to police and he could not remember the date. He surmised that his gloves may have been used in the beak and enter.
On 18 May 2021 Acting Magistrate D Pearce convicted Camara and sentenced him to a term of imprisonment. Mr Pearce did not find Camara or his evidence credible. He rejected his account, such as it was.
[2]
A right to appeal
As is his right Camara appealed his conviction: s 11 Crimes (Appeal and Review) Act 2001. The District Court's appellate powers are exercised under Crimes (Appeal and Review) Act 2001 - Appeals against conviction are to be by way of rehearing on the evidence given in the original Local Court proceedings, except as provided by section 19.
A District Court Judge is permitted to have regard to the evidence presented to and the transcript of the Local Court proceedings and to the Magistrate's reasons for judgment: Charara v The Queen (2006) 164 A Crim R 39, per Mason J at [23].
A Judge is entitled to draw his or her own inferences from the evidence given in the Local Court (with the "natural limitations" of an appellate court); those inferences may, or may not be, contrary to any inferences drawn by the Magistrate. A Judge must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate's evaluation of evidence.
After hearing an appeal a judge may determine an appeal against conviction:
1. by setting aside the conviction, or
2. by dismissing the appeal: s20 Crimes (Appeal and Review) Act 2001 .
[3]
The appeal
The appeal was heard on the basis of the evidence in the Local Court. I indicated my familiarity with and knowledge of the locality as I am the resident judge in this District: s 144 Evidence Act 1995.
Mr Kwan for the appellant in written and oral submissions made these points:
1. No stolen property or fingerprints or anything other than the DNA profile was found to connect the appellant to the break and enter.
2. The appellant's explanation was not inherently implausible.
3. He was, in May 2020, trying to reconstruct events from months earlier that he had until his arrest no particular reason to remember.
4. The prosecution case rested on compromised probabilistic reasoning.
5. There was a mixture of DNA recovered from the spanner; reducing its reliability as a source of identification.
6. In the absence of other evidence there were alternative hypotheses available.
For the Director of Public Prosecutions Ms McCrossin submitted that it could not be and was not disputed that the appellant's DNA was found on the spanner given the statistical weight to support that conclusion.
In the absence of any plausible explanation for that DNA being found on an item taken from the shed during the break and enter, the offence had been proved beyond reasonable doubt.
[4]
Proof beyond reasonable doubt
The onus of proof rests on the prosecution throughout. Even were I to reject everything said by the appellant I would have to return to the prosecution case and find they had proved beyond reasonable doubt that it was the appellant who committed the offence.
[5]
Circumstantial evidence
The prosecution case is based on circumstantial evidence and the drawing of inferences and a conclusion from those proved circumstances. I must consider all of the evidence before me, including from the appellant. I must not draw any inferences from the direct evidence unless it is the only rational evidence in the circumstances. For an inference to be reasonable it must rest upon something more than mere conjecture. I must be satisfied beyond reasonable doubt of the guilt of the appellant and accordingly it is necessary not only that his guilt is a rational inference, it should be the only rational inference that all the proved circumstances would enable me to draw.
The bare possibility of innocence should not prevent me from finding the appellant guilty if the inference of guilt is the only inference open to a reasonable person upon consideration of all the facts proved in evidence. The evidence is not to be looked at in a piecemeal fashion at trial or on appeal: The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618; Plomp v The Queen (2007) 228 CLR 618.
The DNA expert's opinion is part of a circumstantial case.
[6]
DNA Evidence
The statistical evidence interpreting the significance of the reported match between the DNA profile found on the spanner and the appellant's DNA profile is not evidence of the probability that the accused was the source of the incriminating DNA. The statistical evidence in support is undeniably strong evidence pointing to a conclusion that the appellant was the source of the incriminating DNA, but is not direct evidence of that fact. It must be considered in the light of all the other evidence in the case and the challenges to it and the other aspects of the prosecution case.
In approaching the issue of whether the incriminating DNA came from the appellant, and the issue of his guilt of the crime charged, I must treat the DNA and statistical evidence as evidence to be considered and weighed along with the other evidence, not allowing it to displace or to overwhelm the consideration of all material evidence, but at the same time giving it such weight as I think proper.
The Prosecution must exclude as a reasonable possibility the DNA:
1. came there by chance;
2. came there by way of contamination either:
1. deliberately, or
2. accidentally;
1. came there by some indirect or secondary transfer; or
2. came there by direct but not criminal contact.
It is not for the accused to prove any of these things; the onus is on the prosecution to exclude them as reasonable possibilities.
[7]
Australian Authority
In Fitzgerald v The Queen [2014] HCA 28, the High Court, after a careful review of expert evidence about the possibility of transfer and equivocal evidence about the source of the crime scene DNA found on a didgeridoo did not accept 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 subject of the conviction. Alternative hypotheses consistent with the appellant's innocence, in particular the hypothesis about secondary transfer of the appellant's DNA to the didgeridoo were not unreasonable and the prosecution had not successfully excluded them.
The High Court took into account that
1. The expert evidence was not that secondary transfer of DNA was "rare"; rather, it was 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.
2. There were at least two distinct occasions, on which a secondary transfer of the appellant's DNA to the didgeridoo may have occurred.
3. 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.
[8]
English Authorities
Court of Appeal of England and Wales have quashed convictions based solely on evidence that the defendant's DNA had been found on movable articles left at the scene of a crime: Grant v R [2008] EWCA Crim 1890; Ogden v R [2013] EWCA 1294; Bryon v R [2015] 2 CrAppR 21.
However In R v FNC [2016] 1 Cr AppR 13 at [19] to [26], the court held that the where it was clear that DNA had been directly deposited in the course of the commission of a crime by the offender, a very high DNA match with the defendant would be sufficient without more to give rise to a case for the defendant to answer.
In Tsekiri v R [2017] EWCA Crim 40 the Court of Appeal Court, held that Bryon was not correct. And that where a defendant's DNA profile at the scene is the only evidence the fact that DNA was on an article left at the scene of a crime can be sufficient without more to raise a case to answer where the match probability is 1:1 billion or similar.
Each case will depend on it particular the facts however in England and Wales an accused is required to give an explanation and the absence of an explanation can be probative. The absence of explanation in the England and Wales a case meant that there would be no material to undermine the conclusion to be drawn from the DNA evidence. In Tsekiri this point was decisive. Those provisions do not apply in Australia. Nevertheless in a DNA found on a moveable item prosecution relevant considerations can include:
1. Was the article apparently associated with the offence itself?
2. Is there evidence the offender did touch the article in question. The position could be different if the article was not necessarily so connected with the offence e.g. if a DNA profile were to be found on a cigarette stub discarded at the scene of a street robbery.
3. How readily movable was the article in question? A DNA profile on a small article of clothing or something such as a cigarette end at the scene of a crime might be of less probative force than (as was the case here) the same profile on a vehicle.
4. Is there evidence of some geographical association between the offence and the offender? The facts of this case are an example of this.
5. In the case of a mixed profile is the DNA profile which matches the defendant the major contributor to the overall DNA profile?
6. Is it more or less likely that the DNA profile attributable to the defendant was deposited by primary or secondary transfer? In Tsekiri the expert evidence was that secondary transfer was an unlikely explanation for the presence of his DNA on the door handle.
[9]
Assessment of the evidence
There was a break and enter at, and property stolen from, the Five Islands Road factory. The statistical evidence interpreting the DNA profile 'match' is expert evidence of such a magnitude that it provides extremely strong support for the proposition the appellant's DNA profile was recovered from the spanner. So much is not disputed.
The only issue in dispute is how it got there and whether the prosecution can exclude reasonable hypotheses consistent with the innocence of the appellant.
[10]
Consideration
I am satisfied beyond reasonable doubt that the appellant was the source of the incriminating DNA profile. The appellant gave evidence. He did not suggest he had a twin or a very close relative; whose DNA may have been deposited on the spanner and thus led to the an incorrect match with his profile. Absent contamination a likelihood ratio over 100 billion leaves little room for there being a chance match given there are only about 13 million men in Australia and 120,000 men in the greater Illawarra area.
The appellant did not seek to test with; the Crime Scene Officer, the police at Lake Illawarra or the FASS expert any possibility of contamination at the scene, the police station or the lab. By admitting the police brief into evidence he placed no affirmative evidentiary onus on the prosecution to rebut that possibility.
The appellant lived in Cringila. He had a friend who lived in the street behind the crime scene. He did not put forward an alibi. He had an opportunity to commit the crimes.
Magistrate Pearce was not impressed by the appellant's failure to recall when or how he came to be parted from his gloves or when or how he was at his friend's premises in Merrett Avenue. His Honour did however suggest a plausible rational excuse - he was walking past the broken gate and saw and picked up the spanner before discarding it as too rusty. The appellant's credibility is not however to be judged by his failure to invent an excuse. He carries no onus. Nor did it appear he was advancing any positive proposition other than to account for he and property being near the scene at a relevant time.
DNA evidence can be a powerful tool in a circumstantial case. The DNA evidence should be assessed at two discrete levels- source level and activity level.
Here there is powerful evidence the appellant was the source of the DNA profile on the spanner. But that evidence and the high statistical, and thus evidentiary, weight given it cannot tell us how the DNA got on the spanner. Care needs to be taken not to carry over the statistical implausibility of a random person other than the appellant leaving the DNA on the spanner to the assessment of the likelihood he committed the crime.
Given the evidence before me I do not doubt that at some point between the breaking and the discovery of the spanner on 31 August (a weekend) the appellant's DNA was transferred to the spanner. There is a real possibility that that transfer was from a person associated with the break and enter. But is a conclusion the appellant was that person the only rational possibility?
In my opinion it is not.
[11]
Determination
Accepting the spanner was taken from the shed during the beak and enter:
1. A spanner is a very transportable item.
2. It was found in the open near a main road just inside a broken and clearly unlocked gate: photo 16.
3. We do not know what biological material contained the DNA recovered by the tape lift.
4. We do not know how much DNA was deposited or recovered or how long it may have persisted for.
5. We do not know who the other two contributors to the DNA mixture are.
6. We do now from the FASS annexure that for mixed profiles "it may be difficult to know the most appropriate scenarios to consider when carrying out statistical evaluation of the findings if limited information has been provided to the laboratory regarding the case circumstances…:" Annexure page 3 of 7.
7. We do know from the FASS annexure that "DNA can be transferred to an object directly or by an intermediary. That transfer and persistence is affected by a number of factors and understanding regarding these factors is limited:" Annexure page 6 of 7.
8. We do know from the FASS annexure that "where the DNA cannot be attributed to a particular bodily fluid or substance it may not be possible to provide an opinion regarding which transfer scenario is more likely to produce the observed results:" Annexure page 6 of 7.
9. We do know from the FASS annexure that "where individuals have been in direct or indirect contact with each other in a social or household setting the possibility that secondary transfer of DNA will be considered reasonable:" Annexure page 6 of 7.
There is evidence that the appellant had regular contact with those who lived a short distance from the factory. There is no reason to reject entirely his evidence that he had left his motor cycle gloves and tools at those premises. Accordingly it cannot be excluded as a reasonable possibility that the DNA found on the spanner came from at least two possible sources:
1. Someone from those premises with whom he was in contact and had picked up some of his DNA touched the spanner over the weekend before its discovery on 31 August 2020.
2. Someone wearing the Appellant's' gloves that had the appellant's DNA on them touched the spanner over the weekend before its discovery on 31 August 2020.
As those possibilities have not been excluded; that the appellant's DNA profile matched a DNA profile found on the spanner was insufficient to establish beyond reasonable doubt that he was a participant in the break and enter the subject of his conviction. Alternative hypotheses consistent with the appellant's innocence, in particular the hypothesis about secondary transfer of the appellant's DNA to the spanner, were not unreasonable and the prosecution had not successfully excluded them.
[12]
Orders
The appeal is upheld. The conviction must be set aside.
[13]
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Decision last updated: 16 July 2021