Criminal Law - Appeal against conviction - Circumstantial case - Whether evidence supported a verdict of guilty - Whether the trial magistrate erred in law by taking into account the absence of an explanation from the accused for the presence of his DNA on a wooden dowel at the scene - Application of Weissensteiner v The Queen

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' (Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661, quoted in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104) (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' (R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535).

1. At trial, it was common ground that an offender entered the complainant's house and stole certain of her property. The only fact in issue at trial was whether the appellant was the offender.
2. The prosecution sought to prove the identity of the offender by way of circumstantial evidence. That evidence comprised the presence of the appellant's DNA on a wooden dowel.
3. The complainant's evidence was that she kept a piece of wooden dowel inside the track of her kitchen window, which prevented the window from opening further than four inches. The dowel had always been located inside the window.
4. The complainant's evidence was that she religiously locked up her house every night before she went to sleep, including all the doors and windows. As the complainant was unable to fully close the kitchen window, she used the dowel to prevent entry to the house through that window.
5. The complainant gave evidence that at approximately 2.00 am on 5 November 2024 she was sleeping inside her house when she was woken by something. She turned on her light, and saw a person in her room with their hands in a particular position. She saw the person from the side. The person froze when they noticed that the complainant was awake.
6. The person was completely covered in clothes, which included a big coat and a big beanie. The complainant thought the coat was of an unusual type to be worn by a young man.
7. The complainant's evidence was that she could not see the colour of the person's skin, because they had gloves on and were wearing a face mask.
8. The complainant gave evidence in chief that she saw what she thought was a man in her room, who was going through her things on the dressing table. In cross-examination, the complainant described the offender's hands as feminine,[5] very dainty,[6] and fine-boned.[7] The complainant agreed that she had said to the police that the offender's hands looked like female hands,[8] and that the first time she had said that she thought that the offender's hands might have been a male's hands was at the trial.
9. The complainant repeatedly described the offender as having very dainty fingers or fine boned fingers, which made her think the person was either a female or a young male. The complainant thought, based on the size of the offender's fingers, that they were a small person.
10. The complainant was not questioned about the potential discrepancy between her description of the offender as having very dainty or fine boned fingers and her evidence that she could not see the colour of the offender's skin because the person was wearing gloves.
11. The complainant played dead after seeing the offender in her house. She waited for 10 minutes before getting out of bed and looking to see if the offender had left her house. When she did so, she noticed that the window above her kitchen sink was fully open.
12. A police officer subsequently found the dowel in a plastic bin near the window in the complainant's rear yard.
13. The evidence was that the offender had left the complainant's house through a sliding glass door at the rear of the house. In the course of their investigation, police officers took fingerprint samples from the interior surface of that glass door. Those fingerprints did not to belong to the appellant.
14. The police also took two DNA trace swabs. The first was from the kitchen window frame at the point of entry, and the second was taken from the dowel.
15. A Pathwest scientist gave evidence at the trial that Pathwest had received the two swabs and the appellant's DNA reference sample.
16. The first swab was deemed unsuitable for testing. The second swab, taken from the dowel, contained a mixture of biological material consistent with the presence of the DNA of two individuals. One of those individuals contributed a larger amount of DNA compared to the other.
17. The appellant was identified as the contributor of the larger amount of DNA. Statistical analysis showed that it was 100 billion times more likely than not that the appellant was the contributor of the larger DNA sample.
18. The contributor of the other DNA present on the dowel was not identified.
19. Pathwest did not receive a DNA sample from the complainant, and only tested the DNA samples submitted by the police. Pathwest did not have access to the items swabbed by the police.
20. There was otherwise no forensic evidence identified within the complainant's home attributable to the appellant.
21. The Pathwest scientist who gave evidence at trial explained that DNA can be deposited in two ways. The first is when the source of the identified DNA comes into direct contact with the object, referred to as direct transfer. The second is when the identified DNA has come into contact with an object through an intermediary step, referred to as indirect transfer.
22. The Pathwest scientist gave evidence to the effect that it could not be inferred how the appellant's DNA came to have been deposited on the dowel. In particular, the strong statistical likelihood that it was the appellant's DNA on the dowel did not give rise to the inference that it had been directly transferred to the dowel.
23. The Pathwest scientist's evidence was that various factors impact on the deposition, persistence and transference of DNA. Those factors included the nature of an object's surface, an object that is more porous, rough or abrasive being more likely to retain higher concentrations of DNA, as compared with a shiny, glossy surface, where DNA was not likely to be retained. Other factors included whether there was a prolonged contact with friction or whether there was a biological fluid. All of those factors had to be considered as a whole, rather than in isolation.
24. The forensic biology report tendered at the trial explained that the likelihood that DNA would be directly deposited on a surface is reduced where the person is wearing gloves that act as a barrier.
25. As to the secondary transfer of DNA, the report explained that the likelihood that DNA would be transferred to an object, retained thereon and subsequently yield a DNA profile was dependent upon a combination of factors, including the nature of the surface, the strength and duration of the contact, the 'shedder status' of the individual and environmental conditions.
26. The report confirmed that, while there were several factors which could influence the deposition, persistence and transference of DNA to a surface, a forensic scientist could not say how any of those factors (whether individually or in combination) played a role in a specific outcome.
27. The report further confirmed that a forensic scientist could not determine the mechanism by which DNA came to be present on a particular item.
28. The appellant did not give evidence at the trial.
29. The prosecution case at trial was that the appellant was the principal and only offender. There was no evidence to suggest that there had been more than one offender.
30. In closing, the prosecutor submitted, in effect, that the case rested upon the accused DNA having been recovered from the dowel, which had been used to prevent the kitchen window being opened. It was said that the accused's failure to explain the presence of his DNA on the wooden dowel necessitated a Weissensteiner[9] direction. It was submitted that, as the appellant was the only person who could explain why his DNA was on the dowel, his failure to do so rendered any innocent explanation no longer rational or open on the evidence. In those circumstances, the prosecution submitted that the only rational inference to be drawn was that the appellant was involved in the offences.
31. Trial counsel for the appellant submitted that the prosecution had not proven the case beyond reasonable doubt, because it had not negated a reasonable hypothesis consistent with innocence. That hypothesis was said to be that the appellant's DNA had been deposited on to the dowel by indirect transfer in circumstances where the appellant was not physically present during the offending.
32. It was said that there was a reasonable basis for a reasonable hypothesis that it was not the appellant who was the offender, having regard to the unidentified fingerprints found at the exit point of the house; another person's DNA having been found on the dowel, the police having failed to obtain a DNA reference sample from the complainant to exclude her as a contributor; and the complainant's evidence as to identity leaving open the possibility that the offender was female.
33. The learned magistrate gave written reasons for decision. His Honour, with respect, correctly directed himself as to the presumption of innocence, the burden and standard of proof, the drawing of inferences and the approach to be taken in cases reliant upon circumstantial evidence.
34. Having correctly identified that the only issue in dispute was identity, the magistrate found that he was satisfied beyond reasonable doubt that the appellant was the offender. The critical facts identified by his Honour in coming to that conclusion were:

(a) the appellant's DNA having been identified on the dowel;

(b) the dowel had been located inside the window track the night before the burglary and was removed to allow access to the complainant's house;

(c) the dowel was found in close proximity to the window, inside the plastic bin and in an undercover area of the house;

(d) the dowel was located only a few days after the commission of the offences.

1. The magistrate did not consider the complainant's description of the offender to be 'plainly disconnected with a young male', finding that it was not inconsistent with the offender being male.
2. The critical aspect of the magistrate's reasoning regarding the DNA evidence was contained in paragraphs [66](l) to [68] of the reasons for decision as follows:

To submit, by sheer coincidence, the DNA of the accused being found to the extent set out in the DNA testing evidence, on a wooden dowel that was inside the tracks of a kitchen window of the house and removed to allow entry to the home and that the accused had no association with that burglary is not accepted.

Moreover, many aspects of the defence closing had the hallmarks of being nothing more than speculation designed to explain away the evidence on which the prosecution relied.

Nothing in the evidence rationally explained how his DNA might have got onto the dowelling as found in the location it was. The fact that his DNA had somehow got onto the dowel was, taking the accused's position at its highest, was a mere coincidence or possibly the result of secondary transfer.

1. On that basis, the magistrate found that the elements of each offence compelled the inference, to the exclusion of all other inferences, that the appellant was the offender. His Honour's assessment of the evidence was that the possibility of the appellant's DNA having been deposited by transference - that is, indirect transfer - was excluded by the combined force of the other matters he had identified.
2. In reaching that conclusion, the magistrate did not consider it necessary to direct himself in terms of Weissensteiner. However, in case he had erred in reaching his decision solely by reference to the circumstantial evidence, his Honour considered that a Weissensteiner direction would have been appropriate, saying:

In the particular circumstances of this matter and the evidence led at trial by the prosecution, in my view, no valid reason existed for the accused's failure to provide an explanation for the presence of his DNA on the dowel.

The accused's failure to provide any explanation for the existence of the DNA on the dowel meant that the inference that he participated in the burglary became compelling, and the only reasonable inference that could be drawn. In my opinion, in the particular circumstances of the case, that failure on the part of the accused, together with all the other evidence, led to the prosecution case against him being established beyond reasonable doubt.

1. Although the magistrate referred to the complainant's evidence in cross‑examination that the offender had been wearing gloves in his reasons, his Honour did not address the potential consequences of that evidence in his reasons for decision.
2. To be fair to the learned magistrate, in her closing submissions (which the magistrate set out in full in his reasons for decision) counsel for the appellant at trial referred to the complainant as having given evidence that the offender's hands had been 'ungloved', directing the court's attention to the unidentified fingerprints found on the sliding glass door. Neither counsel directed the court's attention to the complainant's evidence that she had not been able to see the offender's skin colour because, in part, the offender had been wearing gloves.
3. The significance of that evidence appears to have been overlooked during the trial. If the evidence that the offender was wearing gloves is disregarded, the inference that it was the appellant who deposited his DNA on the dowel by direct transfer is inescapable.
4. However, and with great respect to his Honour, in my judgment the evidence that the offender was wearing gloves was of central importance, in the unusual circumstance that the only evidence that the appellant committed the offences was that his DNA was present on the dowel.
5. On the forensic evidence adduced at the trial, the appellant's DNA having been found on the dowel raised three possibilities - that the appellant had directly transferred his DNA to the dowel in opening the window; that his DNA had been indirectly transferred to the dowel by an unidentified person; or it had been indirectly transferred to the dowel by the appellant in some fashion.
6. The first possibility was rendered implausible by the evidence that the offender was wearing gloves and the complainant's evidence regarding the offender's appearance, which gave rise to the inference that the offender had dressed in a way intended to make identification difficult. In those circumstances, it is implausible that the appellant opened the kitchen window, removed the dowel to gain access to the complainant's home and only then donned gloves to enter the house.
7. The second and third possibilities were equally open on the evidence. There was no evidence that the appellant was found to be in possession of any gloves.
8. In those circumstances, the possibility that there had been an indirect transfer of the appellant's DNA to the dowel is real, rather than hypothetical. On the forensic evidence, the DNA material could have been transferred to the dowel indirectly. Once it is appreciated that the offender was wearing gloves, the evidence does not allow any conclusion to be drawn as to whether that occurred by direct or indirect transfer.
9. At the close of the prosecution case, therefore, the possibility that the appellant's DNA had been deposited on the dowel by indirect transfer from gloves worn by another person had not been excluded.[10]
10. The issue is therefore whether, the appellant not having given evidence, the circumstances necessitate a Weissensteiner direction. In Weissensteiner the High Court established that such a direction may be given when the prosecution's case is based on circumstantial evidence, and the accused's failure to provide an explanation for facts that are peculiarly within their knowledge may be relevant to the evaluation of the evidence. The case was one where, if there were facts which explained or contradicted the evidence against the accused, they were solely within the accused's knowledge and could not be adduced from any other source.
11. In Azzopardi v R[11] the High Court emphasised that a failure to offer an explanation can only be relied upon where the explanation is called for because there are matters 'peculiarly within the knowledge of the accused' in the sense that they are 'facts known only to the accused'.
12. In my judgment, it is inappropriate that a Weissensteiner direction be given in this case.
13. The evidence that the offender was wearing gloves and of the possibility of indirect transfer is sufficient to establish that there is another explanation reasonably open on the evidence, namely that the appellant's DNA was transferred to the dowel by indirect transfer by an unknown offender wearing gloves bearing the appellant's DNA.
14. In this regard, I am not satisfied that the appellant must be taken to have known how his DNA may have come to be on gloves worn by the offender. The evidence of indirect transfer suggested that the appellant's DNA may have been transferred from one object to another, and there was no evidence that indirect transfer required that the appellant's DNA be directly transferred to gloves worn by the offender in order for that material to be deposited on the dowel.
15. In this case, the DNA evidence was the only evidence implicating the appellant. In circumstances where the complainant was unable to identify whether the offender was male or female, there was evidence that the offender was wearing gloves, the evidence of identification went no further than it was not inconsistent with the appellant having been the offender and it was equally possible that the appellant's DNA had been deposited on the dowel by direct or indirect transfer, in my judgment the prosecution failed to establish that the appellant was the offender beyond a reasonable doubt.
16. Had there been any other evidence tending to implicate the accused unrelated to the DNA evidence, then I may have been satisfied of his guilt beyond reasonable doubt. However, I am not satisfied that guilt is the only available rational inference in the circumstances set out in the preceding paragraph.
17. I therefore find that the prosecution failed to prove beyond reasonable doubt that the appellant was present at the time the offences were committed, and that, in the very particular circumstances of this case, failed to establish the guilt of the appellant.
18. For those reasons, I consider that the appellant's conviction on both charges should be quashed. Further, given that I am in as good a position as the magistrate to consider the evidence, I am satisfied that there is no prospect that the appellant could be convicted if there were to be a re‑trial.
19. I will accordingly direct that a verdict of acquittal be entered in relation to both charges.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Wark v The State of Western Australia [2023] WASCA 66 [329] - [342].

[4] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].

[9] Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217.

[10] See Ripper v State of Western Australia [2024] WASCA 30 [67] - [80].

[11] Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 [68], [61] - [62], [64] - [68], [210].