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[2026] NSWCCA 124
Court of Criminal Appeal (NSW)
2026-08-19
Cavanagh J at [1]; Rigg J at [146]; Roberts J at [147]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Haouchar v R [2026] NSWCCA 124
Hearing dates: 27 May 2026
Date of orders: 19 August 2026
Decision date: 19 August 2026
Before: Cavanagh J at [1];
Rigg J at [146];
Roberts J at [147]
Decision: (1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the applicant’s convictions in respect of counts 3, 5, 6, 7, 11 and 12 and, in lieu thereof, an order of acquittal be entered.
(4) Set aside the aggregate sentence entered on 17 October 2025.
(5) Remit the matter to the District Court for further sentencing in respect of the offences to which the applicant entered pleas of guilty.
(6) List the matter for mention at Sydney District Court on 28 August 2026 at 9am.
Catchwords: CRIME — appeals — appeal against conviction — multiple offences of possession of drugs and firearms at unoccupied house — unreasonable verdicts — inconsistent verdicts — circumstantial case — where Crown case contended applicant part of a joint criminal enterprise — where possession an essential element of each offence of which the applicant was convicted — whether inference of guilt the only available inference having regard to the whole of the evidence
Legislation Cited: Crimes Act 1900 (NSW), s 93T
Criminal Appeal Act 1912 (NSW), ss 5, 6
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Firearms Act 1996 (NSW), ss 4, 4A, 7, 51D, 51H
Weapons Prohibition Act 1998 (NSW), s 7, Sch 1 s 4
Cases Cited: Chahine v R [2006] NSWCCA 179
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
English v R [2025] NSWCCA 184
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Halmi v R [2008] NSWCCA 259
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
Hyunh v R [2020] NSWCCA 202
Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Musa v R [2019] NSWCCA 279
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Dib (1991) 52 A Crim R 64
R v Filippetti (1978) 13 A Crim R 335
R v Haouchar [2025] NSWDC 47
R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Slattery v R [2023] NSWCCA 117; (2023) 308 A Crim R 196
The King v ZT (2025) 281 CLR 137; [2025] HCA 9
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Wiggins v R [2020] NSWCCA 256
Category: Principal judgment
Parties: Mahamad Haouchar (Applicant)
Rex (Respondent)
Representation: Counsel:
A Chhabra with R Mitchell and M Watts (Applicant)
A Bonner (Respondent)
Solicitors:
Hanna Legal (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)
File Number(s): 2023/122599
[This headnote is not to be read as part of the judgment]
Mahamad Haouchar (“the applicant”) was charged with 12 counts of firearms, prohibited weapons and drug supply offences, as well as one count of knowingly participate in a criminal group. Following a judge-alone trial, the applicant was convicted of six of those counts and acquitted of the remainder. The applicant had already pleaded guilty to a number of other offences and was sentenced to an aggregate sentence of 12 years imprisonment with a non-parole period of eight years.
The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his convictions.
The Crown contended that the applicant was part of a joint criminal enterprise with three other men to possess and store firearms, ammunition and prohibited drugs at a property in Yagoona. When the police executed a search warrant the house was unoccupied. There was no evidence that the applicant had any connection with the property other than fingerprint and DNA evidence found on a number of items at the property. The Crown case was thus circumstantial, and the trial proceeded in large part on agreed facts with the forensic evidence linking the applicant to some items the subject of the charges.
The trial judge accepted that the applicant was involved in a joint criminal enterprise with only one of the co-accused. The trial judge convicted or acquitted the applicant of the offences having regard to the forensic evidence, that is the presence or absence of the applicant’s DNA or fingerprints at the property and on any of the firearms, drugs or bags holding the items.
The applicant raised four grounds of appeal, although in submissions it was confirmed that the principal ground of appeal was that the verdicts of guilty returned by the trial judge were unreasonable and could not be supported having regard to the evidence adduced at trial (Ground 2). The remaining grounds of appeal concerned challenges to the consistency of the verdicts (Ground 1) and the propriety of the trial judge’s reasons, both in respect of guilty verdicts returned based on DNA evidence and in relation to a finding that the applicant was engaged in a joint criminal enterprise with one of his co-accused during the relevant charge period (Grounds 3 and 4, respectively).
The Court held (Cavanagh J, Rigg and Roberts JJ agreeing), granting leave to appeal and allowing the appeal:
As to Ground 2:
(1) The appellate court must ask itself whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. This question will be the same whether the trial was conducted before a judge alone or before a jury.
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; The King v ZT (2025) 281 CLR 137; [2025] HCA; Slattery v R [2023] NSWCCA 117; (2023) 308 A Crim R 196 cited.
(2) Where the case against an accused person rests substantially upon circumstantial evidence, a verdict of guilty cannot be entered unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. The guilt of the accused must be the only rational inference capable of being drawn from the circumstances. For an inference to be reasonable, it must be something more than mere conjecture. An accused person bears no evidentiary onus to establish a hypothesis consistent with innocence.
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Wiggins v R [2020] NSWCCA 256 cited.
(3) Absent any statutory definition, possession requires both physical control or custody of an item to the exclusion of others, plus the knowledge that the person had the item in his or her custody or control. Joint possession requires two or more persons to be acting in concert to exercise their power of exclusive possession against all outsiders.
He Kaw Teh v The Queen (1985) 157 CLR; [1985] HCA 43; R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89; R v Dib (1991) 52 A Crim R 64; Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337 cited.
(4) The Yagoona property was being used to store illegal firearms and drugs. Further, it must be that the applicant had been at the premises having regard to the presence of his fingerprints on immovable items at the property.
(5) However, possession during the charge period was an essential element of each of the offences of which the applicant was convicted. The presence of the applicant’s DNA on bags found at the Yagoona property containing the drugs or firearms or the firearms themselves was insufficient, without more, to establish that the applicant was in possession of the items (when found at the house) acting alone or in concert with the co-accused. There were other inferences available, inconsistent with the guilt of the applicant such as that the applicant had previously handled the items.
(6) Each of the verdicts of guilty must be set aside and the applicant must be acquitted. As the sentence imposed was an aggregate sentence which included matters to which the applicant had pleaded guilty, the Court remitted the matter to the District Court for fresh sentencing in relation to those matters.
CAVANAGH J: This is an appeal against conviction in respect of firearms and drug supply offences. The applicant seeks leave to appeal against his convictions pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
The applicant stood trial on 13 charges. He was acquitted of seven of the charges but convicted of four unlawful possession of firearms offences contrary to ss 7(1) and 51H(1) of the Firearms Act 1996 (NSW) and two drug supply offences contrary to ss 25(1) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) by Grant DCJ following a judge-alone trial.
I set out below a table identifying the 13 counts on the indictment and the finding by the trial judge in respect of each count:
| Count | Offence | Verdict | | 1 | Knowingly participate in a criminal group: Crimes Act 1900 (NSW), s 93T(1) | Not guilty | | 2 | Aggravated unauthorised possession of firearms: Firearms Act, s 51D(2) | Not guilty | | 3 | Possess unauthorised pistol: Firearms Act, s 7(1) | Guilty | | 4 | Possess unauthorised pistol: Firearms Act, s 7(1) | Not guilty | | 5 | Possess unauthorised pistol: Firearms Act, s 7(1) | Guilty | | 6 | Possess unauthorised pistol: Firearms Act, s 7(1) | Guilty | | 7 | Possess stolen firearm: Firearms Act, s 51H(1) | Guilty | | 8 | Possess stolen firearm: Firearms Act, s 51H(1) | Not guilty | | 9 | Unauthorised possession of prohibited weapon: Weapons Prohibition Act 1998 (NSW), s 7(1) | Not guilty | | 10 | Supply prohibited drug not less than a small quantity (heroin): DMTA, s 25(1) | Not guilty | | 11 | Supply prohibited drug not less than a large commercial quantity (cocaine): DMTA, s 25(2) | Guilty to the statutory alternative of supply commercial quantity | | 12 | Supply prohibited drug not less than an indictable quantity (methylamphetamine): DMTA, s 25(1) | Guilty | | 13 | Supply prohibited drug not less than a commercial quantity (3,4 methylenedioxymethamphetamine (“MDMA”)): DMTA, s 25(2) | Not guilty |
Following his conviction, the applicant was sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 8 years (which included other offences to which the applicant pleaded guilty). The applicant does not appeal against sentence.
The applicant raises four grounds of appeal, being:
Ground 1: The trial judge’s verdicts on counts 3, 5, 6, 7, 11 and 12 are inconsistent and cannot stand with the verdicts of not guilty on counts 1, 2, 4, 8, 9, 10 and 13.
Ground 2: The verdicts on counts 3, 5, 6, 7, 11 and 12 were unreasonable and cannot be supported having regard to the evidence.
Ground 3: The trial judge erred in failing to give proper reasons for the inconsistency between the verdicts and in finding that the explanations postulated as to how the applicant’s DNA was deposited onto items were “mere conjecture and speculation”.
Ground 4: The trial judge erred in failing to give proper reasons in finding a joint criminal enterprise existed between the applicant and Ismael Ratel between 1 December 2020 and 28 April 2021 to store particular firearms and drugs within the Yagoona property and within the Lexus motor vehicle.
It can be seen from the grounds of appeal that the applicant seeks to set aside each of the convictions, either on the basis that they were unreasonable and cannot be supported having regard to the evidence or that they are inconsistent with the verdicts of not guilty on other counts.
As submitted by the applicant during the hearing, the main ground of appeal is ground 2, that is, that the verdicts are unreasonable. The applicant submits that grounds 1, 3, and 4 are really sub-grounds or particulars that feed into ground 2. I will consider the appeal on that basis.
Section 6(1) of the Criminal Appeal Act provides that the Court of Criminal Appeal may allow an appeal against conviction if the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The principles concerning this type of appeal are well-established: see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M v The Queen”); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (“Filippou”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (“Dansie”); The King v ZT (2025) 281 CLR 137; [2025] HCA 9.
In Dansie, the High Court (referring to M v The Queen) observed, at [8]:
“The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.” (citations omitted)
The same approach applies in respect of a finding of guilty following a judge-alone trial: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [24]; Filippou at [12].
“(1) The task to be performed by the appellate court is not to determine whether there was error in the trial judge’s factual findings, but rather to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty: Dansie at [7].
(2) The appellate court must ask itself whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. This question will be the same whether the trial was conducted before a judge alone or before a jury: Dansie at [15]; Filippou at [82].
(3) If the appellate court entertains a reasonable doubt that the accused was guilty, the court must conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt: Filippou at [82]; Dansie at [15].
(4) While the appellate court should approach the reasons of the trial judge with circumspection, it is entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings: Dansie at [16]; Filippou at [83].
(5) The advantage that a trial judge may have had by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and the nature of the issues that arose at the trial: Dansie at [17].
(6) Where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight: Dansie at [17].
(7) As a corollary of proposition (6), the advantage enjoyed by the trial judge will be greater where the prosecution case was supported by direct evidence of complainants whose testimony was challenged under cross-examination.”
On 28 April 2021, a police search warrant was executed at a property in Yagoona (“the Yagoona property”). At the time, the property was unoccupied.
A search of the property and an unoccupied Lexus motor vehicle at the property revealed the presence of various quantities of different types of drugs, including MDMA, cocaine and heroin, as well as ammunition, magazines and four firearms. In total, 53 items were seized by the police for analysis, some of which were not firearms or drugs but were ordinary household items which were then subject to forensic testing.
Three of the four firearms were located in what is described as a “Bulldogs bag” stored under the kitchen sink. A fourth firearm was located inside a black sports bag inside the boot of the Lexus in the garage.
The drugs were in plastic bags either in the kitchen cupboard, in an oven in the kitchen, in a kitchen cabinet, or under the kitchen sink.
The case against the applicant was entirely circumstantial. No evidence was adduced to the effect that the applicant or the co-accused were owners, lessees, or occupiers of the Yagoona property. Perhaps unlike the cases against his co-accused (the other alleged participants in the joint criminal enterprise) in which there may have been other evidence, such as recorded conversations and information on seized mobile phones (see R v Haouchar [2025] NSWDC 47 (“the Verdict Judgment”) at [191]-[192], there was nothing to link the applicant to the Yagoona property or the illegal items found at the property other than:
The DNA and fingerprint evidence matching the applicant found at the Yagoona property; and
The assertion of a relationship between the applicant and the other co-accused (whose fingerprints or DNA was also found at the property or on items within the property) albeit that the trial judge was only satisfied of a relationship between the applicant and one of the co-accused, Mr Ratel (there being no evidence of any relationship between the applicant, and the other co-accused Mustafa Mariam, Shade Saleh and Ahmad Dabboussi).
As the applicant’s fingerprints and DNA were found on immovable objects at the Yagoona property such as door handles, he must have been there at some stage.
However, other than count 1 (participation in a criminal group), all of the charges had as an essential element, possession of the firearms or drugs the subject of the charge. The Crown case was that the applicant held possession of each of the items which were found at the Yagoona property jointly with the other co-accused.
The trial before Grant DCJ proceeded largely on the basis of an extensive set of agreed facts, which included all the evidence as to the firearms and drugs found at the Yagoona property and the DNA and fingerprint evidence. The Crown also adduced evidence from a number of police officers, including the officer in charge and those involved in the execution of the search warrant at the property, as well as a forensic investigator, fingerprint and DNA experts.
The oral evidence was uncontroversial, although relevant particularly in relation to the possibility of transfer of DNA.
As I said, there was no other oral or documentary evidence linking the applicant to the items located at the Yagoona property The asserted connection arose purely through the presence of his fingerprints and DNA at the property and some items located at the property.
There was no evidence of any conversations or joint activity involving the applicant and the co-accused other than two observations of the applicant with one of the co-accused, Mr Ratel.
The applicant was observed in a vehicle with Mr Ratel on 14 May 2020 during a vehicle stop by police. The applicant was again observed in a vehicle with Mr Ratel during a random breath test on 11 June 2020. Those observations took place nearly ten months before the search warrant was executed on the Yagoona property.
No evidence was adduced linking the applicant with any other co-accused, other than DNA evidence found on the goods described above. The applicant was not mentioned by the other co-accused in the discussions between them in the cells at Bankstown police station, recorded on 15 July 2021. No evidence was adduced of a connection between the applicant and the seized mobile phones.
In terms of the connection between the co-accused it was agreed that:
The applicant and Mr Ratel were known to one another;
Mr Ratel and Mr Saleh were known to one another;
Mr Mariam and Mr Dabboussi were known to one another;
Mr Mariam and Mr Ratel were known to one another; and
Mr Mariam and Mr Saleh were known to one another.
It follows that the applicant knew Mr Ratel and Mr Ratel knew other co-accused, but the only evidence of any association between the applicant and Mr Ratel was that to which I have already referred, that they were observed in a vehicle together on two occasions.
The trial judge did not accept that the applicant was involved in a joint criminal enterprise with any of the co-accused other than Mr Ratel.
The Crown adduced evidence from Clayton Walton, a DNA expert. The applicant adduced evidence from Helen Roebuck, also a DNA expert. They gave their evidence concurrently. As noted in the Verdict Judgment at [156], Ms Roebuck agreed with all the DNA findings and statistical analysis relating to the applicant. Although some of the DNA evidence was expressed in terms only that the applicant could not be ruled out as a contributor, the applicant accepted on appeal that such a finding was conclusive of his DNA being found.
The trial judge thus made findings based on the agreed facts, which set out the DNA evidence.
During the search of the Yagoona property, a Bulldogs bag was found in a cupboard in the kitchen. Contained within the bag were:
A silver Harrington & Richardson Arms revolver (“Firearm 1”);
A Heckler & Koch Model 23.45 calibre handgun (“Firearm 2”); and
A black Smith & Wesson .38 Special revolver (“Firearm 3”).
Ammunition was also found within the Bulldogs bag.
When found, Firearm 1 was wrapped in a blue Chux cloth and two latex gloves. DNA was identified on the Chux cloth. The DNA mixture originated from at least four persons. One co-accused, Mr Mariam, could not be excluded as a contributor to this mixture.
DNA was also identified on one of the latex gloves, which was wrapped around Firearm 1. The mixture originated from at least two individuals and the applicant could not be excluded as the major contributor to the mixture.
DNA was found on some of the ammunition, originating from at least two individuals, the major contributor to the mixture having the same DNA profile as the co-accused, Mr Saleh.
Firearm 2 was found inside a black sock inside the Bulldogs bag. DNA was identified inside the foot end of the black sock. The mixture originated from at least four individuals and the applicant could not be excluded as a contributor to the mixture. The applicant’s fingerprints were also identified on a magazine from Firearm 2.
Firearm 3 was found inside a black and green sock inside the Bulldogs bag. No DNA matching the applicant’s DNA profile was detected on or near this firearm. The DNA mixture originated from at least four individuals and the applicant’s co-accused, Mr Ratel, could not be excluded as a contributor to the mixture.
A fourth firearm, a DENIX imitation self-loading pistol resembling a Walter PPK Model pistol (“Firearm 4”), was located inside a black sports bag in the boot of the Lexus. The applicant’s DNA was identified on the hammer of that firearm.
The applicant’s DNA was also identified on the mouthpiece and upper half surface of an empty water bottle found inside the Yagoona property. Further, DNA was identified on two door handles and the applicant could not be excluded as a contributor to those mixtures.
Extensive DNA and fingerprint evidence associated with the applicant’s co-accused was also found at the Yagoona property (to differing degrees), but it is not necessary to detail all of that evidence for the purposes of this judgment. Suffice to say that in addition to Mr Ratel and the other three co-accused, the trial judge accepted that 10 other people were forensically connected to the property or items seized in the property, three of whom were known, including the applicant’s brother, and seven of whom were unknown.
The applicant’s fingerprints (right palm finger, right ring finger and little finger) were found on a Woolworths shopping bag located at the Yagoona property. Found inside the Woolworths bag was a number of seized exhibits, including three packages of cocaine.
The applicant’s fingerprints were also found on the handle of an IGA shopping bag found under the kitchen sink (incorrectly referred to as a Coles shopping bag in the statement of agreed facts). The bag contained 188.5g of methylamphetamine.
The applicant’s fingerprints were also found on the lower half of a Gatorade bottle located in a lower cupboard immediately to the right of the oven.
The Crown case was that the applicant and at least Mr Mariam, Mr Saleh and Mr Dabboussi agreed to use the Yagoona property as a safe house to store firearms, firearm parts, ammunition and prohibited drugs in a joint criminal enterprise.
The Crown contended that the applicant and at least Mr Mariam, Mr Saleh and Mr Dabboussi were in joint possession of the firearms, firearm parts, ammunition and prohibited drugs at the time the search warrant was executed on the Yagoona property. The Crown case was circumstantial. There was no direct evidence of the applicant being observed at the Yagoona property, or in the Lexus motor vehicle, or handling or being in possession of any of the items found at the property. Instead, the Crown relied upon the DNA and fingerprint evidence attributable to the applicant identified on three of the four firearms, items containing drugs as well as other items, on door handles and the front door of the Yagoona property. The Crown relied upon the number and location of forensic evidence sources that connected the applicant with the Yagoona property and the Lexus. The Crown relied upon inferences to establish that the applicant had access to the Yagoona property and the Lexus, that he was present at the property and that he had joint possession of the items on which his fingerprints or DNA profile were located.
Further, ballistics testing of Firearm 2 established that it had been used in a shooting at Yagoona on 12 April 2021.
In an extensive judgment, the trial judge:
Summarised the agreed facts and evidence relied upon by the Crown;
Summarised the Crown and defence cases;
Gave himself appropriate directions;
Considered the charges against the applicant and the elements of each charge;
Had regard to the forensic evidence to which I have already referred;
Considered the defence case of an indirect transfer of DNA; and
Made findings as to the connection between the applicant and the other co-accused before considering whether the Crown had established the elements of each offence with which the applicant was charged beyond reasonable doubt.
The challenge which arises on this appeal is to the trial judge’s approach to matters 5, 6 and 7. That is, his Honour’s approach to and use of the forensic evidence as a basis for his verdicts of both guilty and not guilty.
In particular, the applicant submits that on a proper analysis of the trial judge’s reasoning in respect of all of the counts, the reasoning which his Honour applied to the verdicts of not guilty should also have been applied to the other counts.
To understand the applicant’s contentions, it is necessary to consider his Honour’s findings in respect of each count.
His Honour identified that a “criminal group” refers to three or more people who have as their objective, or as one of their objectives, attaining material benefits from conduct that constitutes a serious indictable offence. His Honour was not satisfied that the Crown had proved that three or more people including the applicant engaged in a joint criminal enterprise to participate in a criminal group. His Honour referred to the evidence linking the applicant to Mr Ratel, but observed that there was no evidence of a connection between the applicant and Mr Dabboussi or Mr Saleh. Further, the only evidence linking Mr Mariam to the applicant was DNA evidence found on the items wrapped around Firearm 1. Mr Mariam’s DNA was detected on a cloth wrapped around Firearm 1 and the applicant’s DNA was found on a latex glove, wrapped within that cloth. His Honour was unable to infer from these two facts alone that there was a joint criminal enterprise between the applicant and Mr Mariam. His Honour was not able to infer any agreement between the applicant and Mr Mariam. His Honour concluded there was no evidence of any relationship between them.
His Honour observed at [241] of the Verdict Judgment, that:
“The DNA could have been deposited onto the cloth and glove through several means. It is not my role to speculate about how traces of both Mr Mariam and [the applicant’s] DNA came to be present on the cloth and the glove respectively and infer from this that they were working in concert to commit a specific offence. It raises suspicion, but not to the level of proof beyond reasonable doubt.”
A finding of not guilty was thus entered.
As previously outlined, a Woolworths shopping bag was found under the sink in the kitchen of the Yagoona property. The applicant’s fingerprints were located beneath the Woolworths bag containing the cocaine. A Coles shopping bag containing cocaine was also found in the oven. The trial judge concluded there was no forensic connection between the Coles shopping bag found in the oven and the applicant. His Honour was not satisfied the applicant knew of the existence of the Coles shopping bag in the oven.
His Honour was, however, satisfied that the applicant and Mr Ratel had entered into a joint criminal enterprise to store the Woolworths bag containing cocaine and that the applicant possessed it for the purposes of supply. The applicant was found not guilty to count 11, but guilty of the statutory alternative (deemed supply).
“Other people are forensically connected to the property (Mr Mariam, Mr Saleh, Mr Dabboussi, Mr Mounin Haouchar, Mr Ahmed Jindi, Mr Milad Youseff, female profile J, profile F, profile D, profile B, profile G, profile O and profile N). It does not follow that they engaged in a joint criminal enterprise with [the applicant] and Mr Ratel. It is a reasonable possibility that some of them were engaged in their own joint criminal enterprise to use the property to store a gun and/or drugs. There is no evidence [the applicant] knew these people or was in contact with them or that they were at the property at the same time.”
The applicant’s primary contention is that the verdicts were unreasonable because there were inferences from the forensic material consistent with innocence, such that the trial judge ought to have had a reasonable doubt as to the guilt of the applicant. The applicant highlights three matters, being:
That the applicant was not in fact acting in concert with his co-accused in relation to storage and the exercise of control over the items;
The absence of a right or ability to exclude others from the premises and therefore the items; and
An absence of knowledge.
In developing this point, the applicant pointed to inconsistencies in the reasoning process of the trial judge, highlighting the findings made by the trial judge in respect of a number of counts in which his Honour returned verdicts of not guilty. The applicant described these findings of his Honour as “anchor points” to his Honour’s judgment which demonstrate the unreasonableness of the guilty verdicts, and the inconsistencies between the guilty and not guilty verdicts.
The applicant submits that the first “anchor point” was a finding by his Honour in respect of count 1, that he was unable to infer from the presence of Mr Mariam’s DNA and the applicant’s DNA on different items wrapped around Firearm 1, that they were involved in a joint criminal enterprise to participate in a criminal group.
The second “anchor point” finding was his Honour’s observations in relation to count 1 about the close proximity between various items in the Yagoona property, particularly the fact that Firearms 1, 2 and 3 were all found in the Bulldogs bag. In those circumstances, his Honour concluded that an inference (consistent with the applicant’s innocence) that the Yagoona property was being used as a safe house by different people to conduct their own criminal activity independently was equally available on the evidence.
The third so-called “anchor point” (in respect of count 4) was that his Honour could not exclude the possibility that Firearm 3 was the subject of a joint criminal enterprise between Mr Ratel and some other individuals and all of the firearms were placed inside the Bulldogs bag at some stage by some other person. His Honour said he would not speculate and although there might be some suspicion, suspicion was not sufficient.
The point made by the applicant is that having returned verdicts of not guilty for the reasons set out above in respect of a number of counts, his Honour failed to apply that logic to the counts on which he returned verdicts of guilty. This is said to be because the guilty verdicts were dependent on a forensic connection between the applicant and the items the subjects of the various charges. The applicant submits that the forensic evidence permits different hypotheses which may be consistent with innocence, which the trial judge seemed to have accepted in respect of the not guilty verdicts, but not in respect of the guilty verdicts.
The applicant highlighted his Honour’s unwillingness to accept any agreement between the applicant and the other co-accused (other than Mr Ratel) but, at the same time, pointed to his Honour’s acceptance of an agreement with Mr Ratel based on the mere fact that he was observed to be in a car with Mr Ratel on two occasions, six to seven months before the commencement of the charge period and nearly a year prior to the conclusion of the charge period. That is, the observance of the two men in a car together on two occasions, combined with the forensic evidence, was accepted by his Honour to be sufficient to establish an agreement to store the weapons at the Yagoona property.
The applicant also submits that it was not open to the trial judge to find that the applicant had control or custody of any of the items, that the applicant had knowledge that the items were in his control or custody, nor that the control or custody was to the exclusion of other persons other than those nominated as participants in the joint criminal enterprise. The applicant points to the expansion of the joint criminal enterprise, which was said to have arisen during the Crown’s closing address, as highlighting the difficulties with establishing joint possession, because a number of both known and unknown persons were forensically linked to the Yagoona property and various items in it.
Further, the applicant submits that, as accepted by both DNA experts, it is not possible to know when the DNA was deposited onto the items. It could have been months earlier. As the applicant submits, the DNA could have been deposited by the applicant during the process of supply to other persons (not that the applicant was submitting that he was involved in the supply) but the point made is that the presence of the DNA does not of itself lead to a conclusion that the applicant had custody of the items or even knew that they were being stored at the Yagoona property.
The applicant submitted that this limited evidence was insufficient to establish his guilt beyond a reasonable doubt.
The Crown submitted that there is no inconsistency between the not guilty verdicts and the guilty verdicts and that the evidence supported a finding of guilt in respect of each verdict returned by the trial judge.
On the Crown case, the trial judge carefully set out the reasons for each of the guilty and not guilty verdicts, distinguishing between the different types of evidence leading to the different verdicts. The Crown says that the trial judge determined that the applicant was forensically connected to the Yagoona property, both by the fingerprints on the front door and on door handles. The applicant was also forensically connected with other items on which his DNA or fingerprints were identified. Importantly, the Crown submits that the trial judge found that the alternative circumstances as to how the applicant’s DNA was found on items were mere conjecture and speculation.
The Crown submits that:
The basis of the finding of not guilty in respect of count 1 was that the Crown did not establish that the applicant was participating in a criminal group of three or more people. None of the other counts depended upon such a finding and his Honour’s findings of an agreement with Mr Ratel, but not with the other co-accused, was not inconsistent with count 1 and was open on all of the evidence; and
His Honour only returned verdicts of guilty in circumstances in which there was forensic evidence linking both the applicant and Mr Ratel to the item and where there was no other inference available consistent with innocence.
The case pursued against the applicant was entirely circumstantial.
In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) observed:
“[46] …In Barca v The Queen, Gibbs, Stephen and Mason J 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.” (emphasis in original) (footnotes omitted).
As can be observed, to warrant conviction, circumstantial evidence must be inconsistent with any reasonable hypothesis other than the guilt of the accused. Further, all of the circumstances are to be considered in determining whether there is an inference consistent with innocence reasonably open on the evidence.
The point made by the applicant in this appeal is that his guilt is not the only rational inference that could be drawn. In doing so, the applicant points to other hypotheses which may be consistent with his innocence.
In Wiggins v R [2020] NSWCCA 256 at [65], this Court (Simpson AJA, with whom Fagan and Ierace JJ agreed) held that an accused was under no obligation to prove any hypothesis of innocence:
“Where an accused person, in answer to a circumstantial case, advances ‘an hypothesis consistent with innocence’, the hypothesis must be consistent with the evidence in the case and go beyond ‘mere conjecture’. That does not entail any obligation on the accused person to adduce evidence to prove or support the hypothesis. It is sufficient if such an hypothesis can be derived, reasonably, from the evidence in the Crown case. No standard of proof applies. All that is necessary is that the hypothesis be such as to raise a reasonable doubt that the accused person has been proved guilty. Nor is it incumbent on an accused ‘to establish that some inference other than that of guilt should reasonably be drawn from the evidence’: Barca at 105.”
“If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt — not whether any particular fact has been proved beyond reasonable doubt. Suppose on a charge of murder, the jury thought that the Crown had proved beyond reasonable doubt that the murder weapon belonged to the accused and that he had a motive for killing the deceased, but the jury did not think that these two facts proved his guilt beyond reasonable doubt. Suppose further, however, that the jury also thought that it had been proved on the balance of probabilities that the accused had been seen near the scene of the crime shortly prior to the murder and that he had been inexplicably absent from his employment for a period sufficient to enable him to kill the deceased. The inference that the accused, actuated by his motive, had used his weapon to kill the deceased would be greatly strengthened — probably beyond reasonable doubt — by the further probabilities that he had the opportunity to commit the murder, that he had been inexplicably absent from his employment and that he was in the vicinity of the murder scene at the time of death. Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances — often numerous — which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.
In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard. Thus, in the example that I have given, the facts proved on the balance of probabilities were essential to the determination of guilt beyond reasonable doubt. But the determination could still be made even though all those facts were not proved beyond reasonable doubt.”
In an appeal such as this, that is, in which the applicant asserts that the verdicts against him were unreasonable, this Court must undertake its own independent assessment of the evidence so as to determine for itself whether the evidence was sufficient to eliminate any reasonable doubt that the applicant was guilty of the offences of which he was convicted.
This necessarily requires this Court to review all of the evidence as a whole, not in a piecemeal fashion, to determine whether the only rational inference available to the trial judge was the guilt of the applicant in each offence for which he was convicted. Further, although the applicant has highlighted what the applicant submits was an inconsistent approach to each count by the trial judge, in an appeal from a judge-alone trial on an unreasonable verdict basis the reasons of the trial judge are of course relevant but the task remains to assess the evidence as a whole, unswayed by the approach of the trial judge. The trial judge’s reasons assume greater importance in considering whether the verdicts are inconsistent.
The case against the applicant in respect of each of the counts was based on:
The inference said to be drawn from the fact that the applicant and Mr Ratel were known to each other and had been observed to be together by police some months before the search of the Yagoona property as evidence of a joint criminal enterprise to use the property as a safe house; and
The inferences said to be drawn from the fingerprint and DNA evidence, which it is asserted establishes that the applicant must have been at the property at some point and that he must have come in contact with the items, whether that be a sock, a cloth, or a firearm, on which his DNA was found such that, on the Crown case, the applicant must have been in joint possession of those items.
Importantly, in this appeal, possession or rather, joint possession is an essential element of the offences of which the applicant was convicted. Counts 3, 5, 6 and 7 relate to possession of unauthorised firearms. Counts, 11 and 12 relate to the possession of prohibited drugs.
Subject to any statutory definition, the concept of possession in the criminal law context is governed by established principles.
Generally, possession requires both physical control or custody of the item to the exclusion of others, plus knowledge that the person had it in his or her custody or control: see He Kaw Teh v The Queen (1985) 157 CLR 523 at 537-539, 546, 585-587, 599-600; [1985] HCA 43.
In R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89, Giles JA said at [9]:
“Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw The v The Queen (1985) 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filipetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported).”
See also Musa v R [2019] NSWCCA 279 at [32]-[34]; Hyunh v R [2020] NSWCCA 202 at [21]; English v R [2025] NSWCCA 184 (“English”) at [17]-[22].
In some cases, possession may be inferred through exclusive occupation of premises or a motor vehicle. The occupier or owner of premises or the vehicle may have the right to exclude other persons from the property or vehicle.
In a case such as this, where the Crown asserts joint possession, the physical control or custody may be shared, but it still must be to the exclusion of other persons other than those with whom it is shared.
This was explained by Hunt J in R v D**ib (1991) 52 A Crim R 64 (“Dib”) at 67, as follows:
“Where (as in the present case) the Crown seeks to establish an accused's possession of property found not within his manual possession but rather in premises to which he has access, it must - in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property - persuade the jury that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him). In a case where two or more accused are alleged to be in joint possession of the property, the Crown must establish that they all had that legal right.”
“… two persons can only be in possession of the same item if they are so jointly or “in concert” and they must exercise or be capable of exercising their power of exclusive possession against all outsiders. Absent such joint possession it is not possible for two persons to both be in possession of the same item because by definition each of their respective powers of control cannot be exclusive.”
4 Definitions (cf 1989 Act s 3, 1990 Reg cl 3)
(1) In this Act—
…
possession of a firearm includes any case in which a person knowingly—
(a) has custody of the firearm, or
(b) has the firearm in the custody of another person, or
(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.
Note.
See also section 4A.
…
4A Meaning of ‘possession’ of a firearm—proof of possession
(1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that—
(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or
(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or
(c) on the evidence before it, the person was not in possession of the firearm.
(2) In this section, premises means any place, vehicle, vessel or aircraft.
Section 4A commences “without restricting the meaning of the word possession”. I take that to mean that the purpose of s 4A of the Firearms Act is not to provide an exclusive definition of the meaning of “possession of a firearm”.
The effect of s 4A is to deem the firearm to be in the possession of a person in certain circumstances (unless the court is satisfied of the matters referred to in par 4A(1)(a), or pars (b) or (c)). It does not otherwise limit or alter the meaning of “possession” as it has been developed in the criminal law context. The premises were not owned, leased, or occupied, or in the care, control or management of the applicant, and thus no firearm in or on them was by virtue of s 4A taken to be in the possession of the applicant. However, that does not mean that the items the subject of the charges were not in the possession of the applicant.
It follows that whether the court is considering the firearms or the prohibited drugs said to be in the possession of the applicant, the same principles apply. It is only necessary to say that this is not a case in which the firearms might be deemed to be in the possession of the applicant having regard to the applicant’s relationship to the premises where they were found. The onus remained on the Crown to establish that the applicant was in possession of each of the items found at the Yagoona property during the alleged period.
It was necessary for the trial judge to be satisfied beyond a reasonable doubt that the applicant was in possession of each item found at the Yagoona property, whether in the Lexus or in the house, on the day of the search.
His Honour gave himself a possession direction. It is not suggested by the applicant that there was any error in that direction. His Honour also gave himself a deemed supply direction in respect of the prohibited drugs, which included that the Crown must prove that the substances found within the Yagoona property were prohibited drugs (which was agreed between the parties), that the applicant was in possession of them and that the applicant was in possession of them for the purposes of supply. That direction also included that the Crown must prove that the applicant intentionally had the substances in some place to which he had access and could go to in order to obtain physical control of them to the exclusion of other persons, either alone or together with some other person acting jointly with him in possessing the substance.
In an unreasonable verdict appeal such as this, this Court should not be diverted from the task of assessing all of the evidence by the particular reasons given by the trial judge. Yet the evidence must be assessed having regard to findings of the trial judge which are not the subject of challenge. For example, on appeal, the Crown did not advance a submission that the appeal should be considered on the basis of a broader joint criminal enterprise than as found by the trial judge (i.e. including persons other than Mr Ratel). Having said that, the finding of an agreement between the applicant and Mr Ratel is the subject of challenge and is a finding which the applicant submits was not open on the evidence.
There is merit in the Crown case that the property was being used to store illegal firearms and drugs. No other inference arises. It must be that certain persons were involved in storing the firearms, the firearm parts and the prohibited drugs at the Yagoona property at some time prior to the execution of the search warrant. It must be that at least at a general level, some high-level criminal activity was likely to have been engaged in by a number of persons at the property.
It was agreed that Firearm 2 had recently been fired. There was a significant quantity of drugs found at the property, which again, could only be for the purposes of illegal supply.
Further, the forensic evidence linking the applicant to the Yagoona property and the seized items was perhaps more significant than the forensic evidence linking the other co-accused to the property and seized items. By this I mean that this was not a case in which the applicant’s DNA was merely linked to one firearm, one bag, or even one small quantity of drugs. Having regard to the fingerprint and DNA evidence, the applicant was linked to a number of different items, even more so than any other co-accused.
Yet, the problem for the Crown, as identified by the trial judge in his findings, was that, even if the evidence was sufficient to establish an agreement between the applicant and the Mr Ratel, it was insufficient to establish any sort of agreement between the applicant and the other co-accused. That meant the applicant was found not guilty of the charge of participating in a criminal group. Similarly, the DNA evidence was so random that the trial judge was not satisfied that the applicant was in possession of more than three firearms, leading to a finding of not guilty in respect of count 2.
In the end, the question which arises is whether the forensic evidence linking the applicant to the items for which he was found guilty was sufficient to establish that he was in possession of the items at the relevant time (beyond a reasonable doubt).
In some cases, fingerprint and DNA evidence may be powerful evidence of an accused’s connection to and possession of property, the subject of the relevant charge: see Chahine v R [2006] NSWCCA 179 at [19]. In other cases, such forensic evidence might be coupled with other evidence leading to a finding of guilt: see Halmi v R [2008] NSWCCA 259 at [81].
The trial judge's finding about the possibility of indirect transfer of DNA is in a different category as that is the subject of challenge. The trial judge made a finding rejecting that possibility as being mere speculation and conjecture. His Honour had regard to the evidence as to how the search was undertaken and the processes undertaken by the police officers to avoid the possibility of indirect transfer. That is, his Honour made an evidence-based finding, rejecting that possibility as anything more than speculative.
However, on my review of the evidence there was a bit more to the examination of the experts at trial than just the possibility of indirect transfer through handling by the investigating officers. For example, both experts accepted that there was a possibility of transfer from one material to another, such as from a sock to the fabric of a bag. Further, the mere presence of DNA on an object says nothing about how it came to be there or for how long it had been there. The obvious explanation may be handling or touching by the person, but the possibility of indirect transfer remains.
It is not necessary in this judgment to undertake a detailed analysis of the science of DNA evidence. It is only necessary to say that the mere identification of the applicant's DNA on an item found at the Yagoona property on a specific date does not assist in determining when or how the DNA came to have been deposited on the item.
The question which remains in this case is whether, in circumstances in which there was no evidence otherwise connecting the applicant to the Yagoona property (other than the fact that he must have been there at some stage), the Lexus or even for example the bags in which the firearms and drugs were stored, the forensic evidence was sufficient to establish possession beyond reasonable doubt.
In R v Filippetti (1978) 13 A Crim R 335 (“Filippetti”), a large quantity of Indian hemp was found under the cushion of a chair in the loungeroom of a communal home. The accused, one of six occupants of the property, was charged with and convicted of possession. On appeal, Street CJ observed, at 338:
“The difficulty confronting the Crown in this case comes from the large number of persons occupying this comparatively small house and all using the lounge room where the buddha sticks were found. The only Indian hemp found in the appellant's bedroom was the small quantity that has been mentioned and this was not relied upon by the Crown as involving any criminal offence on the part of the appellant. The finding of the buddha sticks in the chair in this lounge room where all six occupants of the house apparently had equally free access, and so far as the evidence goes in fact made equally free use, would not readily establish that there was exclusive physical control of these buddha sticks in any one of the occupants unless there were some other evidence to accompany the finding of the buddha sticks.”
In my view, the Crown faced a similar difficulty in this matter. The onus was on the Crown to establish exclusive possession jointly with Mr Ratel. This is in circumstances in which the forensic evidence may have linked the applicant to the items the subject of each charge of which the applicant was found guilty but also linked others, either directly or indirectly.
The DNA of a number of persons was found at the Yagoona property. It was not asserted by the Crown that any of those persons was the occupier or lessee. The only reasonable inference which arises is that each of those persons was at the Yagoona property at some stage. At trial, it was not established that the applicant had any control or custody of the Yagoona property, the Lexus or even the bags in which the firearms were located. Forensic evidence linking the other co-accused to some items and the Yagoona property more generally was adduced. A good example of this is the Bulldogs bag in which three of the four firearms were found. Relevantly, the DNA of other individuals was identified both on the Bulldogs bag and the firearms in it. The finding of guilt in respect to two of the firearms in the Bulldogs bag gives rise to the same problem that arose in Filippetti.
I will consider each of the guilty verdicts, which necessarily involves some repetition of both the agreed facts and the findings of the primary judge. For the reasons set out, I have a doubt as to whether the applicant should have been found guilty of any of those remaining charges. It is a doubt which the trial judge ought to have had.
Firearm 4 was found wrapped in a white towel in the sports bag which was located in the boot of the Lexus. In addition to the sports bag located in the boot, the police located a large Glad brand white plastic bag on the rear seat, containing some other plastic bags and 13 individually duct-taped bundles containing ammunition and magazines. Forensic testing for persons connected to the items inside the Lexus revealed that:
Mr Mariam’s partial reference DNA profile was identified on two magazines located in a plastic bag, found on the rear seat of the Lexus;
Mr Ratel’s fingerprint was identified on the exterior surface of a plastic bag, also found on the rear seat of the Lexus;
Mr Dabboussi’s fingerprint was located on a cartridge found in a white plastic bag inside the larger plastic bag on the rear seat of the Lexus;
Mr Ratel's DNA profile was identified on the top two zipper pulls and handles of the black sports bag, found in the boot; and
The applicant’s DNA was found on the hammer of Firearm 4 located in the black sports bag found in the boot of the Lexus.
It follows that all of Mr Mariam’s, Mr Ratel’s and Mr Dabboussi’s DNA or fingerprints were identified on items found on the rear seat of the Lexus. The applicant’s DNA was found on the hammer of Firearm 4, located in the black sports bag found in the boot of the Lexus. Mr Ratel’s DNA was identified on that bag. It follows that neither the applicant’s DNA nor fingerprints were found on the black sports bag in which Firearm 4 was located. Nor were the applicant’s fingerprints or DNA located on the white towel wrapped around Firearm 4, or any other items found inside the black sports bag.
In my view, in all these circumstances, nothing can be inferred from the presence of the applicant’s DNA on the hammer of Firearm 4, other than that he most likely touched the firearm at some stage. Mr Chhabra candidly admitted that it may be that the applicant had, but the presence of the applicant’s DNA on Firearm 4 says nothing about the circumstances in which the DNA came to be on the firearm or when it was touched. There was no forensic evidence linking the applicant to the Lexus, or anything else in the Lexus. The presence of the applicant’s DNA on the hammer says nothing about whether the applicant ever had custody or control of the firearm, what he did with the firearm, or how the firearm came to be in the sports bag in the boot of the Lexus.
As observed by Hunt J in Dib at 67, in order to establish that it was the applicant rather than anyone else who had possession of Firearm 4, it was necessary that the Crown establish beyond a reasonable doubt that the applicant had a legal right to exclude all other persons from a right to access that sports bag in the Lexus. In circumstances in which the Crown alleges that the applicant was in joint possession with Mr Ratel, the Crown was required to establish that they both had that legal right.
For my part, I do not consider that the Crown established the necessary element of possession. The depositing of the applicant’s DNA on the hammer of Firearm 4 could have occurred from the applicant handling the firearm at some earlier, indeterminate stage. It could have arisen from him using the firearm at some earlier stage but whether the presence of the DNA might be consistent with other criminal activity is irrelevant.
The question is whether the elements of the offence with which he was charged were proven beyond reasonable doubt. I am not satisfied that the only inference available from the evidence is consistent with the guilt of the applicant in respect of the particular charge.
How the applicant’s DNA came to be on the hammer of Firearm 4 and Mr Ratel’s DNA came to be on the black sports bag, can only be the subject of speculation. It cannot be said that the only rational inference is that the two men were working in concert to jointly possess Firearm 4 whilst it was in the Lexus at the Yagoona property.
As such there may be inferences available not consistent with the applicant’s guilt in respect of count 3. In my view, there is a reasonable doubt as to the applicant’s guilt.
Despite observing that it was not his role to speculate about how traces of both Mr Mariam’s and the applicant’s DNA came to be on the cloth and glove wrapped around Firearm 1 when considering count 1 (the participation in a criminal group charge), his Honour nonetheless found the applicant guilty of possessing Firearm 1, when considering count 5.
Firearm 1 was found inside the Bulldogs bag in a cupboard in the kitchen of the Yagoona property, wrapped in the Chux cloth and two latex gloves. All of the applicant’s, Mr Mariam’s, Mr Ratel’s, Mr Saleh’s, and the applicant’s brother’s DNA or fingerprints were identified either on the Bulldogs bag or on items within the Bulldogs bag.
Firearm 3 was also located inside the Bulldogs bag, inside a black and green sock. DNA was identified on the exterior side of the black and green sock. The mixture originated from at least four individuals and Mr Ratel could not be excluded as a contributor.
In circumstances in which there was forensic evidence linking at least five persons to the Bulldogs bag or other items in the Bulldogs bag and another four other persons to the black and green sock, absent additional evidence linking the applicant to Firearm 1, the presence of the applicant’s DNA on the latex gloves (which Firearm 1 was wrapped within), in addition to other persons is not, in my view, sufficient to lead to a finding of exclusive possession with Mr Ratel.
When considering count 4, his Honour said that he could not exclude the possibility that Firearm 3 was the subject of a joint criminal enterprise between Mr Ratel and other individuals and that all the firearms (Firearms 1, 2 and 3) were placed inside the Bulldogs bag at some stage by some other person. His Honour said he may be suspicious about the applicant’s involvement with Firearm 3 but that suspicion was not enough and he could not speculate. Having found that he could not speculate and having accepted that all of the firearms could have been placed into the Bulldogs bag by some other person other than the applicant, his Honour then accepted that the applicant was in possession of Firearm 1 (simply because of the presence of the applicant’s DNA on one of the latex gloves), despite the presence of other persons’ DNA on the Bulldogs bag and the items inside the bag.
Whilst I am not approaching the issue of unreasonable verdict by focusing on the primary judge’s reasoning, his Honour ought to have had the same concerns about count 5 that he had about count 4. Having regard to the DNA evidence as a whole and the limited other evidence, I am not satisfied that the only rational inference is that the applicant had possession of Firearm 1 jointly with Mr Ratel to the exclusion of all others. It is difficult to understand how his Honour could have concluded that the applicant had possession of Firearm 1 to the exclusion of all others, other than Mr Ratel, in view of his Honour’s findings about Firearm 3 and his finding that all the firearms could have been placed inside the Bulldogs bag by some other person.
In any event, for the reasons I identified in dealing with count 3, and for the reasons his Honour identified in dealing with Firearm 3 (count 4), I have a doubt as to the guilt of the applicant in respect of count 5. A verdict of not guilty ought to have been returned.
The trial judge returned a verdict of not guilty in respect of count 10 because there was no forensic connection to the applicant or Mr Ratel to the heroin. His Honour declined to infer that, in circumstances where the Yagoona property was being used as a safe house for various individuals, some known and some unknown, to conduct various activities, merely because the applicant and Mr Ratel were present at some stage in the kitchen, engaged in a criminal enterprise to commit other offences, they must have been involved in the possession or supply of heroin. His Honour reached similar conclusions with respect to count 13, declining to speculate as to the applicant’s involvement with the drugs the subject of that charge. Yet, despite his Honour’s concern not to speculate on that basis, his Honour found the applicant guilty in respect of counts 11 and 12 merely because the applicant’s fingerprints were on items which were both found under the kitchen sink at the Yagoona property.
For the reasons I have already identified, the presence of fingerprints on two of the bags found under the sink says nothing about how the fingerprints came to be on the bags, when they came to be on the bags, or even whether there were any drugs inside those bags when the fingerprints were so placed on those bags.
Having regard to the other forensic evidence, it cannot be that the only rational inference is that the applicant possessed the drugs the subject of each count, to the exclusion of all others in the Yagoona property, other than Mr Ratel. The trial judge ought to have had a doubt as to the guilt of the applicant with respect to these counts.
For the reasons I have set out, I am not satisfied that the Crown established beyond a reasonable doubt the guilt of the applicant in respect of any of the counts of which he was found guilty. In my view, the only rational inference arising from all of the evidence and in particular the forensic evidence was not the guilt of the applicant.
Whilst the property was plainly being used as a safe house to store illegal firearms and drugs, I am not satisfied that, without more, the guilt of the applicant in respect of any particular count involving possession could be established merely by identifying the applicant’s DNA or fingerprints on one of the subject items or something wrapped around or holding one of the subject items. This is because the presence of DNA or fingerprints says nothing about how or when the DNA may have been transferred onto the item and it says nothing about whether the applicant ever had any possession, control or custody to the exclusion of others (other than Mr Ratel) so as to satisfy the ordinary meaning of possession in the criminal law context.
The only rational inference is not that the applicant had possession of each of the items to the exclusion of all others. There are other inferences not consistent with guilt, such as that the applicant could have handled the item at some earlier stage (such as Firearm 4), or that the applicant might have merely handled a shopping bag at some stage, into which the item was placed by others. The presence of multiple sources of DNA both in the Lexus and in the Bulldogs bag, as well as in the bags containing the drugs, does not permit acceptance beyond a reasonable doubt that the applicant had possession to the exclusion of all others.
In all these circumstances, I would allow ground 2 in respect of each of the verdicts of guilty.
It is not necessary that I consider the other grounds, although much of what I have said would apply to the inconsistent verdicts ground in any event.
Finally, it is also unnecessary to consider the Crown submissions that there is no substantial miscarriage of justice in any event in this case, as those submissions relate only to grounds 3 and 4.
Therefore, I propose the following orders:
Leave to appeal granted.
Appeal allowed.
Quash the applicant’s convictions in respect of counts 3, 5, 6, 7, 11 and 12 and, in lieu thereof, an order of acquittal be entered.
Set aside the aggregate sentence entered on 17 October 2025.
Remit the matter to the District Court for further sentencing in respect of the offences to which the applicant entered pleas of guilty.
List the matter for mention at Sydney District Court on 28 August 2026 at 9am.
RIGG J: I have had the considerable benefit of reading the draft judgment of Cavanagh J. I am grateful for his Honour’s detailed analysis of the evidence, legal principles, and issues on appeal. Having undertaken my own assessment of the evidence relied upon in support of each count, and as a whole, I also hold a reasonable doubt as to the applicant’s guilt in relation to each conviction. As explained by Cavanagh J, the applicant’s guilt was not the only reasonable explanation for this evidence. I agree with the orders proposed by his Honour.
ROBERTS J: I have had the considerable advantage of reading the judgment of Cavanagh J in draft, and the benefit of his Honour's statement of principles, analysis of the evidence and issues on the appeal. There was significant forensic evidence linking the applicant to the Yagoona property and to the seized items, and it was evident that the property was being used to store illegal firearms and prohibited drugs for the purposes of supply. One rational inference to be drawn from the combination of circumstances relied upon by the Crown was that the applicant jointly possessed the firearms and drugs the subject of the counts for which he was found guilty. Upon my own consideration of the evidence, I agree for the reasons explained by Cavanagh J, that it was not the only rational inference available, and there arises a reasonable doubt as to the applicant's guilt. I agree with the orders proposed by Cavanagh J.
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Amendment to "Representation" in coversheet.
Haouchar
R
[2014] HCA 20
(2022) 274 CLR 651
(2015) 256 CLR 47
(1998) 197 CLR 250
(1985) 157 CLR 523
(2014) 253 CLR 455
(1994) 181 CLR 487
(2002) 213 CLR 606
(2020) 268 CLR 123
(1990) 170 CLR 573
(2025) 281 CLR 137
(2016) 258 CLR 308