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[2026] NSWCCA 133
Court of Criminal Appeal (NSW)
2026-09-09
Price AJA at [1]; Cavanagh J at [103]; Rigg J at [106]
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: Pagliari v R [2026] NSWCCA 133
Hearing dates: 3 August 2026
Date of orders: 9 September 2026
Decision date: 09 September 2026
Before: Price AJA at [1];
Cavanagh J at [103];
Rigg J at [106]
Decision: (1) Grant leave to appeal against conviction.
(2) Dismiss the appeal.
Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict – aggravated break and enter and commit serious indictable offence of intimidation – circumstantial Crown case – where CCTV footage depicted applicant drinking from Toohey’s New beer can and discarding that beer can on the grass verge outside the home – where applicant’s partial DNA profile recovered from mouthpiece of the beer can – whether reasonable alternative hypothesis for the presence of applicant’s DNA on mouthpiece of beer can – whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt
Legislation Cited: Crimes Act 1900 (NSW), s 112
Criminal Appeal Act 1912 (NSW), ss 5, 6
Evidence Act 1995 (NSW), ss 32, 38
Cases Cited: Belhaven and Stenton Peerage (1875) 1 App Cas 278
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
Futcher v R [2025] NSWCCA 102
Jha v R [2026] NSWCCA 55
Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170
LS v R [2024] NSWCCA 110
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The King v ZT (2025) 281 CLR 137; [2025] HCA 9
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1
Category: Principal judgment
Parties: Roderick Pagliari (Applicant)
Rex (Respondent)
Representation: Counsel:
I McLachlan (Applicant)
B Page (Respondent)
Solicitors:
Justinian Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/384568
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name or any matter which could identify the victims Z and Y is prohibited.
[This headnote is not to be read as part of the judgment]
On 30 January 2025, the applicant, Roderick Pagliari, was found guilty following a trial by jury in the District Court before Shead SC DCJ (“the trial judge”), of one count of aggravated break and enter a dwelling house and commit a serious indictable offence, namely intimidation, in circumstances of aggravation being knowing persons were present in the premises, contrary to s 112(2) of the Crimes Act 1900 (NSW).
On 23 April 2025, the applicant was sentenced by the trial judge to a term of imprisonment of 4 years and 7 months, with a non-parole period of 2 years and 8 months, commencing on 6 August 2023 and expiring on 5 April 2026. The applicant does not appeal against his sentence.
The Crown case was that on 14 July 2022, a silver Kia Cerato car pulled up outside a house in Kingsgrove and three men exited the car. The applicant and a co-offender, Mr Tore Bell, then broke into and entered the house and intimidated Z and Y, two children who were inside the home at the time. The CCTV footage from a neighbouring property, which was played to the jury, showed the applicant, being the second man to exit the car, drinking from and discarding a Toohey’s New beer can on the grass verge outside of the home before running towards the front door. Police later located the Toohey’s New beer can and a swab taken from the mouthpiece of the beer can recovered a partial DNA profile that matched the same profile as the applicant.
The applicant sought leave to appeal against his conviction on the sole ground that the jury’s verdict was unreasonable. The focus of the applicant’s appeal was on the identity of the second man who got out of the rear left passenger side door of the car whom the jury found to be the applicant.
The Court held (Price AJA, Cavanagh and Rigg JJ agreeing), granting leave to appeal but dismissing the appeal:
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15; The King v ZT (2025) 281 CLR 137; [2025] HCA 9, applied.
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1; Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29, cited.
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; The King v ZT (2025) 281 CLR 137; [2025] HCA 9; Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297; LS v R [2024] NSWCCA 110; Futcher v R [2025] NSWCCA 102, cited.
PRICE AJA: On 30 January 2025, following a trial by jury in the District Court at Sydney before Shead SC DCJ (“the trial judge”), the applicant, Roderick Pagliari, was found guilty of one count of aggravated break and enter a dwelling house and commit a serious indictable offence namely, intimidation, in circumstances of aggravation being knowing persons were present in the premises, contrary to s 112(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.
On 23 April 2025, the applicant was sentenced by the trial judge to a term of imprisonment of 4 years and 7 months, with a non-parole period of 2 years and 8 months, commencing on 6 August 2023 and expiring on 5 April 2026. The applicant was eligible for release to parole on 5 April 2026 but has not been released. The head sentence expires on 5 March 2028.
The applicant’s appeal is confined to his conviction. The sole ground of appeal is that the jury’s verdict of guilty was unreasonable. He has not sought leave to appeal against his sentence.
The applicant requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), as the single ground of appeal does not involve a question of law alone.
The Crown case was that on 14 July 2022 at about 1:19pm, the applicant with a co-offender, Mr Tore Bell, broke into and entered a home in Kingsgrove and intimidated, Z, a child aged 13 years old, who was inside the home with her younger brother, Y, aged 12 years old. On the Crown case, the offence was aggravated by the two co-offenders knowing that there were persons present in the house at the time they broke in.
An alternative basis upon which the Crown put its case against the applicant was that he was engaged in a joint criminal enterprise, being an agreement to break and enter the home intending to intimidate a person named “Jeremy” and foresaw the possibility that someone else might be intimidated and therefore was liable on the basis of an extended joint criminal enterprise.
The CCTV footage tendered as Ex 1, which consisted of a compilation of footage taken from different CCTV cameras of neighbouring premises in Kingsgrove on the afternoon of 14 July 2022, was played to the jury. The footage shows a silver Kia Cerato car being driven along the Kingsgrove street, shortly before coming to a stop and reverse parking out the front of the neighbouring property next door to the Kingsgrove home. It was the Crown case that the footage depicts a male, Tore Bell, wearing a black hoodie and grey trackpants, getting out of the driver’s side door of the car and running towards the front door of the Kingsgrove home. A second man, who is depicted wearing a dark coloured hoodie and grey pants, is shown getting out of the rear left passenger side door of the car. It was the Crown case that the footage shows this man drinking from a Toohey’s New beer can and discarding it on the grass verge outside of the next-door neighbour’s property before running after the first man, Tore Bell, towards the front door of the Kingsgrove home. On the Crown case, this man is alleged to be the applicant. The footage also shows a third man, Levi Ryan, who is depicted dressed in a red jacket, getting out of the rear driver’s side passenger door of the car and walking down the driveway towards the front door of the Kingsgrove home.
From inside the house, Y heard a loud bang on the front door. He walked out from his bedroom into the hallway and witnessed the front door of the home being kicked in, during which he went back to his room. On the Crown case, the applicant and Tore Bell kicked the front door, eventually causing the side frame to break off, which allowed them to kick open the door and enter the home. When they then entered the home, Tore Bell, who was wearing a hooded jacket and wielding a metal rod like object, went into Y’s room and asked him, “is your brother Jeremy?”. The applicant ran into Z’s bedroom and said to her, “is your brother here?”. During which, Z who had been sleeping in her bedroom, woke up to the sound of a man yelling. On the Crown case, Z saw the applicant standing in the hallway at the entrance to her bedroom asking her about a brother named “Jeremy” and where he was. It is uncontroversial that there was nobody named Jeremy who lived at the home.
The applicant and Tore Bell searched throughout other areas of the home, including the living room and kitchen. After realising that there were no other people in the home, they apologised to Y, and then both men went out through the front door leaving the home. The CCTV footage shows Tore Bell at about 1:20pm, running away from the front door of the home and back down the driveway towards the car. He is depicted holding a metal rod like object. On the Crown case, the CCTV footage shows the applicant running back down the driveway, getting into the car, which was driven away.
On the Crown case, on 18 July 2022, the Toohey’s New beer can that had been discarded was found by police and upon later analysis returned a positive DNA match for the applicant’s partial DNA profile.
Z was 16 years old at the time she gave her evidence. She initially gave her evidence-in-chief by way of a pre-recorded interview with police which was played before the jury. She also gave further evidence at the trial and was cross-examined. The police interview was recorded on 14 July 2022, at that time Z was around 13 years old.
In her police interview (MFI 5), Z recounted to police that she woke up to the sound of a man yelling. Z gave evidence that she saw a man in a black hoodie standing in the hallway in front of her bedroom and he asked her where her “brother Jeremy was”. Her recollection was that as she had just woken up and was “stunned about it”, she did not know what was happening and just stared at the man for a few seconds. At some point during the incident, she said that the man went into the living room where the kitchen area was and he stayed there for around “3-5 seconds”. It was Z’s evidence that when she got up out of her bed to see what was happening, she saw that the front door had been broken and the side frame was torn off. She stated at that point she looked outside and saw the man going into a silverish car which drove away. She then told Y about the events that happened.
When asked by police how many people she saw, Z’s recollection was that she had only seen one man. However, she remembered that when she looked into the car, she saw there were “probably three other guys in there”. She gave evidence that the man who had come into her bedroom was wearing a “black jumper”, “black like pants” and “black shoes”, that everything he was wearing was black. She also described this man as having “brown skin”, his “eye colour was brown” and his “eyes were big”, and she also recalled that he had “biggish lips”. She agreed that the man kind of spoke with an “Aussie voice”. It was Z’s evidence that she did not know who “Jeremy” was.
The following evidence was given by Z in answer to questions from Detective Senior Constable Stavros Anagnostakis:
“DSC ANAGNOSTAKIS: When he was walking down the stairs … the house … you walked down and you saw him go down the stairs and what did you see him do?
Z: And then he went into the car.
DSC ANAGNOSTAKIS: Did he get …
Z: He was parked in front of the house.
DSC ANAGNOSTAKIS: Driver’s seat? Passenger seat?
Z: I think he was in the passenger seat.
DSC ANAGNOSTAKIS: Front or back?
Z: Front.
DSC ANAGNOSTAKIS: And you saw how many other people.
Z: Three.
DSC ANAGNOSTAKIS: Three other people in the car? Did you see three other people outside the car or …
Z: No I just saw them inside the car.”
“Q. Further down on the same page where the detective asks you this question, ‘[h]ow many people did you see?’, can you see that?
A. Yep.
Q. You’ll see your response, ‘[u]m, I only saw one of them’, is that correct?
A. Yes.
Q. Then you said, ‘[b]ut when I looked in the car, there were like probably three other guys in there’. Can you see that?
A. Yep.
Q. When you say that there were three other guys in there, you said in the previous answer that you saw one of the guys. Do you recall that?
A. Yes.
Q. When you’re saying there were three others, does that mean that there were four in total; the one that you saw and then the three others in the car?
A. Yes.
Q. So, there were four people …
A. I think so.
Q. … [I]s that what you can remember?
A. (No verbal reply)
…
Q. At the middle of the page, the detective says, ‘[a]nd you saw how many other people?’ Can you see that?
A. Yes.
Q. Your response is, ‘[t]hree’?
A. Yes.
Q. Which is exactly what you said before; that there was the one you saw and three others in the car?
A. Yes.
Q. In fact, the next question that you were asked, the detective said to you, ‘[t]hree other people in the car, did you see three other people outside of the car?’ And you said, ‘[n]o, I just saw them inside the car’?
A. Yes.”
Y was 14 years old at the time that he gave evidence. Similar to Z, Y gave his evidence-in-chief by way of a pre-recorded interview with police which was played before the jury. He also gave further evidence at the trial and was cross-examined. The police interview was recorded on 14 July 2022, at that time Y was around 12 years old.
In his police interview (MFI 6), Y told police that he was playing on the Xbox during which he heard “a bang on the door”. He then saw that a “brown guy” had come in wearing “a hoodie and with a jacket on with pants”. He gave evidence that the first man asked him, “is your brother Jeremy?”. Following which, he observed the second man who ran to Z’s door, and he heard that man ask Z whether her brother “Jeremy” was there. Y gave evidence that the first man was running around the house looking for someone and once he realised that no one was there, he heard him apologise to Z and then he said sorry to him as well, and the two men ran out of the house.
Y described the first man as being approximately “6 foot 3”, his skin appearance “was brown” and that he was wearing “a hoodie with pants”. It was Y’s evidence that he was unable to see much of the second man, but he stated that he was also wearing “a jacket and a hoodie”. Y did not see the second man’s face but agreed that he saw four people in total, two of them inside the house and two outside. The following evidence was given by Y in answer to questions from DSC Anagnostakis:
“DSC ANAGNOSTAKIS: How did … you feel when you heard the loud bang at the door?
Y: … I wasn’t that scared at first but then I saw four people I got confused and scared.
DSC ANAGNOSTAKIS: When did you see that there were four people?
Y: Ah when the guy kicked down the door.
DSC ANAGNOSTAKIS: Ok so when the door was being kicked was the bedroom door to your room closed or open?
Y: Open.
…
DSC ANAGNOSTAKIS: Now did you see four people inside? How did you see four people?
Y: Um two guys were outside.
DSC ANAGNOSTAKIS: yep.
Y: And the three people that were inside …
DSC ANAGNOSTAKIS: Yep. Do you have a window at your bedroom?
Y: Yeah, I have two.
DSC ANAGNOSTAKIS: Ok and were you … how did you see the two guys outside?
Y: … [W]hen I heard the bang I was going to go open the door, but then it was open.
DSC ANAGNOSTAKIS: Ok so when you heard the bang and the door open did you go back in … did you run back into your room?
Y: Yeah.
DSC ANAGNOSTAKIS: Ok were you scared?
Y: Kind of.
DSC ANAGNOSTAKIS: It’s ok to be scared … so two guys came in and two guys were standing outside?
[Y nodded]
DSC ANAGNOSTAKIS: Did you see the guys leave?
Y: Yeah.
DSC ANAGNOSTAKIS: Tell me what you saw.
Y: I saw them leave but [Z] was the one that saw them leave. I just saw them exit.”
“Q. You saw four people on 14 July 2022?
A. Yeah.
Q. On the same page, if I could take you down to about two-thirds of the way down the page, the detective said to you, ‘[n]ow, did you see four people inside?’ Can you see that?
A. Yeah.
Q. You said, ‘[t]he two guys were outside’, correct?
A. Yeah.
Q. Then the detective said ‘[y]ep’ and you said, ‘[a]nd the three people that were inside’. Can you see that?
A. I said two.
Q. Yes, I understand that, but it says ‘three’ there on the transcript.
A. Yeah.
Q. Did you see three people on the inside?
A. I saw two.
Q. Could I please take you to the next page? The next page starts with the detective saying, ‘[o]kay, so when the door was being kicked’. Can you see that?
A. Yeah.
Q. If I could take you down four lines the detective says or said, ‘[h]ow did you see four people inside? How did you see four people?’ Can you see that?
A. Yeah.
Q. You said, ‘[u]m, two guys were outside’?
A. Yeah.
Q. The detective then says ‘[y]ep’ and then you say, ‘[a]nd the three people that were inside’?
A. I said two.
Q. I understand that’s what you said but I’m just reading to you from the transcript.
A. Okay.
Q. My question is this … were there in fact five people in total?
A. There was four.”
“Q. So these four people had come into your house …
A. Two.
Q. I’m sorry, I apologise, you’re quite right. Two people came into your house. One of them said, ‘[i]s your brother Jeremy?’
A. Yeah.
Q. One of them said, ‘[s]orry’, as they were leaving?
A. Yeah.
Q. You knew there were two other people outside the house?
A. Yeah.
Q. So that means that there were the two that came in, and you say two that were outside, is that right?
A. Yeah.
Q. And yet you and your sister walked out of your house?
A. Yeah.
Q. In the direction where the four people were?
A. Yeah, but they, all of them had …
Q. All of them had what?
A. They ran to their car?
Q. Had they run away?
A. Yeah.”
Ms Temissa McClymont was a neighbour of Z and Y, who lived near the Kingsgrove home. She gave evidence that on 14 July 2022, she noticed a car pull up in front of the house and that she paid attention to it because of the speed at which that car was travelling. After she heard multiple car doors closing, she went to look at what was transpiring and saw that one of the men had already exited the car and was running towards the front door of the house. During this time, she also saw a second man exit the car from the rear passenger side door and a third man exit from the driver’s side passenger door of the car. Her evidence was that she had initially seen three men exit the car but only observed two of those men get back into the car. She assumed that the other man was already inside the car when the other two men returned and got back in the car. She then recalled that the car quickly sped off.
Ms McClymont recalled that one of the men was carrying a long metal object, which she recounted as looking like a “metal piece from a vacuum cleaner”, and that he entered the car from the passenger side door. She stated that she could not recall what the men physically looked like but was able to describe the clothing they were wearing. She gave evidence that the first man was wearing a dark coloured hoodie, the second man was wearing a grey coloured hoodie and the third man was wearing a red puffy jacket. She remembered that the third man with the red puffy jacket exited from the driver’s side rear passenger door and also entered the car from that same door. She stated that the second man with the grey hoodie exited from the passenger side door, but she could not recall if it “was the front or the back door”, but her recollection was that he was the one holding the long metal object. She accepted in cross-examination that she was not asked to participate in an identification parade nor to review any photographs.
Ms Alexandra Summerall, a DNA expert, gave evidence about a swab from the mouthpiece of the Toohey’s New beer can, which recovered a partial DNA profile that matched the same profile as the applicant. She stated that it was a hundred billion times more likely to obtain this profile if it originated from the applicant rather than from an unknown unrelated person. She explained that a partial DNA profile means it comes from just one individual; there was no evidence of there being more than one person in the profile, but that there might be some missing information. She also stated that when analysing a DNA profile, they look at 20 areas of the DNA so they may not get all the DNA types for all those areas.
When asked about the other items she had analysed including two cigarette butts found in the car, Ms Summerall said that one cigarette butt had a DNA profile which was described as an “unknown female”, and the other contained a mixed DNA profile.
In cross-examination, Ms Summerall accepted that her ability to accurately analyse DNA was subject to many factors. She agreed that it was not possible to date the time that the DNA may have been deposited on an item or to tell by any scientific method how a DNA profile got on an item. She accepted that she could not say whether the DNA profile was directly or indirectly transferred and that she could not exclude the possibility that the partial DNA had been transferred. She also acknowledged that there may be circumstances where the sample provided may be too low to identify a particular person’s DNA.
Acting Sergeant Scott Lister, the officer in charge, gave evidence that he attended the Kingsgrove home on 14 July 2022 at approximately 2:50pm. He noted extensive damage to the front door and the door frame of the house. Arrangements were then made for a crime scene officer to attend and take photographs and fingerprints which were subsequently submitted for analysis.
Acting Sergeant Lister obtained the CCTV footage from one of the neighbouring premises in Kingsgrove. He made a compilation of that footage from the relevant period on 14 July 2022, which was tendered as Ex 1. There were 16 photograph stills being screenshots from Ex 1, which were tendered as Ex 3.
Levi Ryan gave evidence that he did not recall the events that occurred on 14 July 2022. It was his evidence that he could not remember anything about that day nor who he was with at that time. An application was made by the Crown, and leave was granted under s 32 of the Evidence Act 1995 (NSW), to permit Mr Ryan to refresh his memory from the statement of agreed facts tendered at his sentence hearing (MFI 14), however, when that did not assist, the Crown sought leave to cross-examine Mr Ryan as an unfavourable witness pursuant to s 38 of the Evidence Act, which was not opposed.
Following which, when shown the agreed facts in cross-examination, Mr Ryan maintained that he had no recollection of any of the events which occurred on that day. He gave evidence that he did not recognise the signatures with the handwritten date of 28 June 2023 on the bottom of the agreed facts nor that he had ever been to the Kingsgrove premises. His evidence was that he struggled to remember what he had done last week due to his drug use and other personal things that were going on in his life. Later in his evidence he accepted that he had signed the agreed facts for his sentence hearing.
In cross-examination by the Crown, it was put to Mr Ryan that in the agreed facts he had identified the first male as Tore Bell and himself as the third male, to which he replied that he could not remember. He accepted that the agreed facts identified him as being the male exiting the car from the rear driver’s side door of the car. However, he stated that there was a “good chance” he signed the agreed facts because his solicitor had told him to sign it.
Mr Ryan was taken by the Crown to par 14 of the agreed facts which stated that he had participated in an electronically recorded police interview on 7 December 2022 (“ERISP”), during which he identified himself as the third man depicted on the CCTV footage and further identified the first man as being Tore Bell. In answer to this question, the transcript recorded the trial judge’s observation that Mr Ryan was nodding his head, and he thereafter accepted in relation to par 14 of the agreed facts “if that’s what it says there”. Although, he contended that he had no recollection of being there or doing that, nor did he remember having identified himself or Tore Bell. It was Mr Ryan’s evidence that he had no recollection of participating in the ERISP. The proceedings were then adjourned so that Mr Ryan, in the absence of the jury, could listen to the ERISP. The recording of parts of the ERISP were then played to Mr Ryan and the jury, which was tendered as Ex 7.
Mr Ryan ultimately accepted it was him giving evidence to police on the ERISP but said he was “on the drugs, talking shit … I don’t know what I was saying then”.
The Crown took Mr Ryan to various answers that he had given during the ERISP which included where he said the following:
“So, yeah, Tish and … also Tore had a friend of his there, a gentleman they were calling, I think it was Dodge or something … I’ve seen them once or twice with Tore.”
Mr Ryan maintained that he could not recall having given that answer and said during the ERISP he was “making accusation” and was under the influence of drugs at the time. He also said that he had a big lump on his head from head-butting the wall and was suffering from mental health issues. Further, he gave evidence that he had no other choice than to do the ERISP because the police officers were putting pressure on him saying, “[he] would go to the gaol if [he] didn’t do an interview”.
Mr Ryan was taken by the Crown Prosecutor to his answers in response to questions during his ERISP, concerning whether he remembered which person was seated where in the car as it arrived in front of the Kingsgrove home, in which he had stated the following:
“Q52. Can you, can you remember who was where in the car when they arrived?
A. Okay … Tore was driving the vehicle … his partner, Tish, was sitting in the passenger seat, and his …
Q53. Hang on mate. Yep?
A. And his friend was sitting in the back seat.
Q54. Male friend?
A. Behind, yeah, the male friend was sitting actually behind the passenger seat, so behind there, behind the girl, so yeah.”
“A. yeah, silver pipe. You know, vacuum cleaner pipe.
Q77. Did [Tore Bell] get that from the car or?
A. Yeah, that’s what he fucking went to the boot to grab.
Q78. Oh, it was in the boot [of the car], was it?
A. Yeah, that’s why … the car stopped. He, he’s gone to the boot, boot door open up and then boom, he walks down the side of the vehicle, he’s got a fucking vacuum cleaner pipe. At that stage, I sort, I had a little bit, confused like, vacuum cleaner, what the fuck? But then, body language, I said, I have a feeling he’s fast pacing himself now up the driveway and he’s going up to the front door of this house that we were at and he proceeds to kick the fucking door.”
“Q124. Which friend?
A. The guy that was sitting in the car that I believe his, his name was, they call him Dodge.
Q126. What did he do?
…
Q127. In the incident …
A. He actually … went up to the door and …
Q128. So he got out of the car?
A. I think, I’m pretty sure, yeah …”
“Q133. Did you know, but do you know whether … he went into the driveway, did he?
A. Nah, he went in the premises through the front door.
…
Q136. So Tore and this Dodge went inside the house?
A. Yep.”
Mr Ryan was asked about his description of Dodge given to police where he stated that he had “lighter skin”, black or brown dark hair, “long hair tied up in a ponytail” with the sides of his head shaved, a “slim build” and was approximately “180cm tall”, and also that he was of “some sort of Polynesian descent”. It was his evidence that he had an inability to recall who he was describing during the ERISP but thought that the description given sounded more similar to Tore Bell. He denied that the answer he had given to police was a description of Dodge.
In cross-examination by Mr Coroneos, Mr Ryan reiterated that he could not remember who he was with on 14 July 2022, and that his issues at the time affected his ability to recall any of the events. He reaffirmed that police had effectively threatened him to participate in the ERISP and that if he did not do so they would have put him in the gaol. He stated that he told police anything they wanted to hear and a lot of what he said in his interview was not true; he was “just talking shit” to keep himself out of the gaol. Further, he agreed that Tore Bell was his cousin.
Tore Bell gave evidence that he had no recollection of the events that occurred on 14 July 2022. He stated that he was heavily affected by drugs and had lost his memory because he was involved in a fight where he was hit on the top of his head whilst in the gaol, and as a consequence, he could not recall anything about that day. His evidence was that he remembered the Kia Cerato car but could not recall anything about the Kingsgrove home. The Crown applied for and was granted leave under s 32 of the Evidence Act, for Tore Bell to refresh his memory by reference to a statement of agreed facts signed by him on 26 July 2023 that was tendered at his sentencing hearing (Ex 8).
When asked whether the agreed facts document had refreshed his memory, Tore Bell replied, “bits and pieces but not really”. He maintained his account that he had no recollection of that day nor who he was with at that time. Following an application by the Crown under s 38 of the Evidence Act, Tore Bell was taken to the agreed facts where he accepted that he was at the Kingsgrove house and that he and another person had kicked the front door in. He accepted having kicked the front door in but stated that he had no recollection of what occurred after. Although he denied that he had ever said another person was involved in the kicking of the front door.
In cross-examination by the Crown, Tore Bell was taken to par 14 of the agreed facts which stated that, “[a]fter entering the house, [Tore Bell], wearing a hood and jacket said to [Y], ‘is your brother Jeremy here?’”. According to Tore Bell he neither remembered if he had said those words nor that a young child was in the Kingsgrove home. It was his evidence that he had never entered the Kingsgrove home. Further, when shown the second sentence of par 14 of the agreed facts, which stated that another male ran to Z’s bedroom and said, “is your brother here?”, and there was the sound of a male yelling, he denied that he was inside the Kingsgrove home or had heard the other man yelling.
Tore Bell gave evidence that he could not remember saying that himself and another person had searched other areas of the house and that after not finding the person they apologised to the young child and left. It was his evidence that he had no recollection of any of the events that occurred on 14 July 2022 and that he had signed the agreed facts as he wanted his “sentence over and done with”. It was put to Tore Bell by the Crown that his inability to remember the events of 14 July 2022 was because he wanted to assist the applicant, to which Tore Bell replied, “I don’t even know [the applicant], so I don’t understand why, why you’re saying comments like that”: Tcpt, 23 January 2025, p 207(4-9).
The applicant did not give evidence or call any witnesses. It was the applicant’s case that he was not one of the three men who got out of the car and did not break into the Kingsgrove home.
In his closing address to the jury, Mr Coroneos pointed out that Z and Y did not give any evidence identifying the applicant as being one of the persons who had entered the home. Mr Coroneos reminded the jury that neither Mr Ryan nor Tore Bell positively identified the applicant as being present. Mr Coroneos referred to Mr Ryan pleading guilty to the offence and having been sentenced. Mr Coroneos submitted that Mr Ryan had no motive to lie and reminded the jury that Tore Bell gave evidence that he did not know the applicant.
When referring to the evidence of Sergeant Riley in relation to the car, Mr Coroneos said that the fingerprints of Tore Bell and Mr Ryan were identified but those belonging to the applicant were not.
As to the Toohey’s New beer can, Mr Coroneos said that Constable Butler did not seem to have gone to the nature strip when he attended the premises on 14 July 2022, but that he had found the beer can a few days later on 18 or 19 July 2022. Mr Coroneos submitted there was no evidence of what was happening in the nature strip between the time the car drove off and the time it was located by Constable Butler, who gave evidence that he did not know for how long the beer can had been in that location.
Mr Coroneos referred to Ms Summerall’s evidence of the partial DNA being recovered from a swab of the mouthpiece of the beer can. He referred to Ms Summerall’s evidence which included that it is not possible to date the time the DNA may have been deposited on a particular object; there are a lot of factors that may affect how long DNA may stay on a particular object; it is possible that the DNA transferred from one person to another; there is no particular scientific method on which transferred DNA can be identified; and the possibility that DNA was placed on an item by way of transfer cannot be excluded.
Mr Coroneos asked, “how accurate is a partial DNA on the mouthpiece of an aluminium can located four or five days later”: Tcpt, 24 January 2025, p 253(1-2). Mr Coroneos submitted that the jury could not see the beer can being dropped on the CCTV footage having regard to the distance involved.
Turning to the element of “intimidation”, Mr Coroneos referred to the evidence of Z and Y and submitted that there was an issue as to whether in fact they were intimidated. He submitted that there was no direct evidence that the applicant knew there were people in the home. Mr Coroneos invited the jury to find the applicant not guilty.
The applicant submitted that the jury could never have been satisfied beyond reasonable doubt that it was the applicant who got out of the car and dropped a beer can, being the same beer can from which the partial DNA profile was obtained.
The applicant pointed out that he could not be directly identified from any viewing of the CCTV footage, which was never part of the Crown case. The applicant referred to Z and Y, whom the Crown characterised as witnesses of truth and accurately retold what they saw, each made observations of there being a fourth male involved. Both of them respectively indicated in their separate interviews conducted later on the same day of the incident that they each saw a total of four males all up, including those present within the car. The applicant contended it was important that both witnesses were never challenged at all on that evidence.
The applicant submitted that the evidence of Z and Y was to be preferred over Mr Ryan’s account in his police interview, which was given about 6 months later, at that time, he said he was heavily under the influence of illicit drugs and otherwise had no recollection of the events that occurred on the day in question. Mr Ryan had said in his police interview that there was a female in the front passenger seat of the car. The applicant submitted that it was noteworthy both the “second” man and the “third” man can be seen alighting from the rear passenger seats of the car, and that upon their return to the car, they each re-enter from the rear passenger seats. No-one is seen getting into or out of the front passenger seat of the car.
The applicant contended all of that is entirely consistent with at least a fourth male being present in the front passenger seat. On that basis, the applicant referred to the following possible scenarios which logically arise. First, as the applicant maintained he was not present at all on the day of the incident. Secondly, he was present but remained in the front passenger seat of the car. Thirdly, he was one of the persons, for example, the second man, who had got out of the vehicle.
The applicant submitted that the Crown case, which pointed to the presence of a partial DNA match on the Toohey’s New beer can was problematic, because it presupposes a number of matters. Firstly, the applicant does not accept that he can be seen on the CCTV footage dropping an item at all. Secondly, that it was a beer can that was dropped and not some other item. Thirdly, if a can was dropped, it was the same beer can later seized by police.
The applicant contended that the line of reasoning and ultimate posited scenario ignores the possibility of DNA transfer. The applicant submitted that the evidence fails to exclude the possibility that he may have been in the car at an earlier point in time and that the DNA was somehow deposited by way of transference. Alternatively, that the applicant remained seated in the front passenger seat and the DNA was deposited by way of an indirect, or even direct, transfer. The applicant pointed to there being no evidence of other beer cans that were found by police inside the car upon it being seized, but cigarette butts were located. The applicant contended that this could be consistent with the possibility of sharing a drink from a beer can. Furthermore, that as no beer cans were found within the car, that was consistent with the can being unconnected with the beer can which was subsequently located by police.
A further submission was that the location of the beer can depicted in Ex 4 does not seem to be precisely where the “second” man was standing in Ex 1. The applicant referred to there being no evidence as to the comings and goings along the nature strip in the intervening period (or before 14 July), noting it was accessible to anybody who walked on the street and there was no evidence about who had access to that area during that period.
The applicant referred to the beer can being a highly movable item which could have been somehow placed in that location prior to its seizure. The applicant argued that the Crown case did not exclude the possibility of the beer can having been deposited by someone at any other point in time prior to 18 July 2022.
The applicant contended that there was often an overwhelming “lab coat” effect surrounding DNA results. The applicant argued, irrespective of how powerful the DNA evidence potentially was, it could not be relied upon in the circumstances of this case to establish his guilt beyond reasonable doubt.
In oral submissions, Mr McLachlan, the applicant’s counsel, initially submitted that the Crown’s failure to challenge Tore Bell’s evidence that he did not know the applicant was fatal to the Crown case. Mr McLachlan referred to the evidence of Z and Y as to there being four men and submitted that the Crown had not excluded the reasonable possibility the applicant was sitting in the front passenger seat of the vehicle and took a drink from the can. Mr McLachlan submitted that the evidence of Z and Y should be preferred to Mr Ryan’s answers in his ERISP that Tore Bell’s partner, Latisha Wilson, referred to as “Tish”, was sitting in the front passenger seat.
The Crown emphasised that the primary function of determining guilt or innocence was entrusted to the jury as the tribunal of fact.
The Crown stated there was no real doubt that there was a fourth person inside the car seated in the front passenger seat. That person is visible in Ex 1 and appears to be wearing white. The Crown submitted that the CCTV footage and vague descriptions by both child witnesses do not permit any further conclusions about the gender or age of the person seated there.
The Crown argued that contrary to the applicant’s contentions, Mr Ryan’s evidence that the fourth person in the car was Latisha Wilson, Tore Bell’s girlfriend, should be given more weight than the evidence of the two child witnesses. The Crown submitted that this was so for the following reasons. First, Mr Ryan was in the car for an extended period before and after the incident. Secondly, he was able to positively identify the person seated there because it was a person known to him.
The Crown referred to the evidence of Ms Summerall of a swab of an item found in the car revealing DNA from two individuals with the high probability it was DNA from Tore Bell and Ms Wilson and submitted this supported Latisha’s presence in the car.
Although the Crown accepted that Mr Ryan’s oral evidence was that he had no real memory of the incident, the Crown contended that this did not detract from his account to police which was temporally proximate to the incident and many of his assertions which were corroborated by either independent witnesses, for instance Ms McClymont who gave evidence about Tore Bell being armed with a metal pipe from a vacuum cleaner, or is depicted in the CCTV footage, for instance where the people were seated in the car.
The Crown submitted that it can be seen from the CCTV footage the second man leaving the car throwing an item on the nature strip. This is also visible from the CCTV stills cut from the same footage contained in Ex 3, relevantly photo 5. The Crown contended that in that photograph, the object which is thrown is visible appearing over the front passenger side wheel of the car. The Crown said that CCTV footage shows the second man straightening his arm which had been bent, in a way consistent with a person throwing an item.
The Crown submitted that the object thrown was a container is supported by the CCTV footage which shows the second man holding his right hand close to the bottom part of his face with his head tilted back, with his right elbow raised up for a short period of time. It was the Crown’s submission that less than a second later his right arm moves downward in a “throwing action” and his head is no longer tilted backwards.
Another submission was that the evidence establishes that the beer can found by Senior Constable Butler was found in the exact location as the object thrown by the second man. The Crown further referred to the beer can lying in the same orientation with the silver bottom of the can facing towards the house. The Crown submitted this was consistent with the CCTV footage showing the light coloured object standing out against the grass.
The Crown accepted the DNA expert could not rule out transference as an explanation for the presence of DNA matching the applicant but contended this did not mean the jury could not reason it was the applicant leaving his DNA on the beer can by drinking from it immediately before discarding it. The Crown pointed to a factor against transference being that it was the mouthpiece of the beer can which was swabbed and there was no evidence of any other DNA being located.
The principles to be applied in determining an unreasonable verdict ground of appeal under s 6(1) of the Criminal Appeal Act are well settled. They have been restated in a number of decisions of the High Court following the applicable principles being authoritatively stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63 (“M”): see, eg, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [55]-[59] (McHugh, Gummow and Kirby JJ); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] (French CJ, Gummow and Kiefel JJ); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (“Baden-Clay”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (“Pell”); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]-[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (“Dansie”). This Court recently distilled the principles relevant to the determination of an unreasonable verdict ground in Jha v R [2026] NSWCCA 55 at [116] (Leeming JA, Yehia and Sweeney JJ).
The principles applicable in determining whether a jury’s verdict is unreasonable were conveniently summarised by Bell CJ in Quinn v R [2023] NSWCCA 229 at [82]-[86]:
“[82] It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: [M] at 492-493.
[83] The Court in Cou**ghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:
‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.’
[84] Consistent with [Pell] at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:
‘notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’
[85] Setting aside a jury’s verdict as unreasonable is a ‘serious step’ which should not be taken without the Court having regard to the ‘advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’: [Baden-Clay] at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v T**he Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], [M] at 494.
[86] The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: [Dansie] at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].”
“[7] [M] requires the appellate court, in deciding whether a conviction is unreasonable, or could not be supported, having regard to the evidence, to ask itself ‘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’. In answering that question, the appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the ‘benefit of having seen and heard the witnesses’. To the contrary, the appellate court is obliged to pay ‘full regard to those considerations’ as follows:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.’ …
[8] Three aspects of [M] should be noted.
[9] First, although another passage of [M] refers to the advantage the jury has in ‘seeing and hearing the witnesses’, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in [Dansie] the advantage possessed by the trial judge as arbiter of fact was assessed as ‘slight’ because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence.
[10] Second, in applying [M] the appellate court is required to give ‘full allowance’ to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.
[11] Third, [M] requires that the appellate court undertake an ‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.” (footnotes omitted and emphasis in original)
“… a jury has a further advantage in assessing the facts, namely that it involves the assessment of 12 people drawn randomly from the community, seeking to achieve a unanimous verdict, who bring to bear a diverse range of human experience, understanding and judgment in assessing the testimony they have heard.”
“[46] The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen’.
[47] For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.” (footnotes omitted and emphasis in original)
“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.”
As the High Court stated in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ), in a circumstantial case, this Court must “weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard”, bearing in mind that “ultimate inference” will not be open to the jury “if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”: see also Fennell at [82]; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [143] (Gordon and Edelman JJ), [251] (Jagot J, Kiefel CJ and Gageler J agreeing).
The applicant does not challenge the findings of the jury on intimidation and knowledge which are essential elements of the offence of aggravated break and enter, contrary to s 112(2) of the Crimes Act, of which the applicant was found guilty. The focus of the appeal is the identity of the second man who got out of the rear left passenger seat side door of the car whom the jury found to be the applicant.
On this critical issue the trial judge directed the jury that the Crown must prove beyond reasonable doubt:
that the person who the Crown alleged to be the applicant who got out of the car dropped a can; and
that was the same can recovered by police from which a partial DNA profile consistent with the applicant’s DNA profile was recovered.
The jury were further directed that if they were not satisfied beyond reasonable doubt of the essential facts, they must return a verdict of not guilty. Her Honour said (Tcpt, 28 January 2025, p 38):
“As I have said, this would also be the position if, at the end of your deliberations, you came to the view that some other reasonable explanation exists for the presence of a partial profile, consistent with [the applicant’s] DNA profile, on the beer can, other than that he is guilty.”
Immediately preceding that direction, her Honour summarised Mr Coroneos’ argument that the partial DNA profile could be present as a result of transfer; that there was no evidence as to how the DNA got there; that you could not see the can being dropped; the can was not found by police for a number of days and “in those circumstances, you could not draw an inference that the presence of the DNA on the beer can prove[s], beyond reasonable doubt, that it was [the applicant] who was one of the men who got out of the car”: Tcpt, 28 January 2025, p 37. Further, her Honour told the jury that “what can be seen on the CCTV is a question entirely for you”: Tcpt, 28 January 2025, p 34.
No complaint is made by the applicant about the trial judge’s directions which were preceded by careful directions on the onus of proof; the essential elements of the offence; extended joint criminal enterprise and circumstantial evidence.
In the hearing before this Court, the CCTV footage (Ex 1) which was viewed by the jury was played. In my view, it was open to the jury to be satisfied beyond reasonable doubt that the second man wearing a dark coloured hoodie and grey pants who got out of the rear left passenger side door of the Kia Cerato from the CCTV footage and from photograph 4 of Ex 3, drank from a container.
Furthermore, it was open to the jury from the CCTV footage and photograph 5 of Ex 3, to be satisfied beyond reasonable doubt that the second man after drinking from the container discarded it on the grass verge near the driveway to the home.
It was open to the jury to be satisfied beyond reasonable doubt after viewing the CCTV footage; photograph 5 of Ex 3; and the body worn video recorded by Constable Butler and photographs 1 and 5 of Ex 4, that the Toohey’s New beer can found by Constable Butler was in the same location as the container discarded by the second man.
It was open to the jury to be satisfied beyond reasonable doubt that the Toohey’s New beer can was the container discarded by the second man; that the partial DNA profile recovered from the mouthpiece of that can matched the same profile as the applicant.
The arguments advanced in this Court by Mr McLachlan concerning the possibility of transference of DNA differed to an extent from the submissions made by Mr Coroneos to the jury. The thrust of Mr Coroneos’ submissions to the jury was that the applicant was not present at all; that Tore Bell, Levi Ryan and Jordan Terence Bell were the persons who were responsible, that the can could “be easily moved, kicked around, dropped out of a car, fallen off a passing car, transported from another premise”: Tcpt, 24 January 2025, p 254(25-35). Mr Coroneos put to the jury that the Crown could not exclude the possibility that the DNA had been placed on the can by way of transfer.
Whilst there had been cross-examination of Z and Y about the number of people they had seen, Mr Coroneos did not submit to the jury that it was a possibility that the applicant was in the front passenger seat of the car where he remained. Mr McLachlan submitted in this Court that there were four men in the car, that the Crown would need to exclude a reasonable alternative hypothesis that the applicant was in the front passenger seat of the car, that he shared a drink out of the can which was discarded by the second man after he got out of the car. Mr McLachlan emphasised that both Z and Y’s recollections of seeing four men were not challenged nor was Tore Bell’s evidence that he did not know the applicant.
Mr McLachlan having identified the above arguments on appeal to advance what was submitted as a reasonable alternative hypothesis being open on the evidence capable of explaining the presence of the applicant’s DNA on the Toohey’s New beer can consistent with his innocence should be considered in this Court’s “‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’”: ZT at [11]; M at 493. It is for the Crown to prove beyond reasonable doubt that the only reasonable explanation for the presence of the applicant’s partial DNA on the Toohey’s New beer can was that he was the second man who drank from that beer can before discarding it on the grass verge. The presence of the applicant’s partial DNA is an essential part of the Crown’s circumstantial case, and a relevant issue is when and how the applicant’s DNA got there.
At the heart of the jury’s function in deciding “contested factual questions” is the assessment of the credibility of a witness on the basis of what the jury has seen and heard in the context of the trial: Pell at [37]. The advantages enjoyed by the jury are not confined to assessments of the demeanour of witnesses and can extend to an assessment of the plausibility of a witness’ account in the context of considering how the witness presented: Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297 at [5] (Beech-Jones CJ at CL); see also Futcher v R [2025] NSWCCA 102 at [45] (Harrison CJ at CL, Garling and Yehia JJ agreeing); LS v R [2024] NSWCCA 110 at [147] (Ward P, Dhanji and Hamill JJ agreeing).
It was open to the jury to find that although Z and Y were honest witnesses they were mistaken about their recollection of seeing four men. It was open to the jury to reject both Tore Bell’s evidence that he did not know the applicant and Mr Ryan’s evidence of his lack of recollection about his participation in the ERISP; the pressure put on him by police; his lack of recollection about the statement of agreed facts and that he signed whatever his lawyer told him to sign. Furthermore, it was open to the jury to accept as honest and reliable Mr Ryan’s answers in the ERISP that Tore Bell was driving the vehicle; his partner Latisha was in the passenger seat beside him and Dodge was sitting behind Latisha.
The reliability of Mr Ryan’s answers in the ERISP are supported by Ms McClymont’s account that one of the men running back from the house was carrying a long metal object that sort of looked like the metal piece from a vacuum cleaner. Mr Ryan’s answers to police included that Tore Bell went to the boot of the vehicle, got out a vacuum cleaner pipe, went up the driveway and kicked the front door. When Tore Bell came back out, he still had the vacuum cleaner pipe. Another item that was available for the jury’s consideration was Ms Summerall’s evidence of the presence of Tore Bell’s and Latisha Wilson’s DNA on the butterfly knife located in the car.
Another difficulty with the scenario hypothesised by Mr McLachlan of the possible transfer of DNA by the applicant sharing a drink out of the Toohey’s New beer can is that the partial DNA recovered from the mouthpiece of the can was confined to the applicant’s DNA.
Having considered all of the evidence in combination, I do not regard Mr McLachlan’s alternative hypothesis as reasonable.
This is not a case when all of the circumstantial evidence is considered there remains a reasonable explanation for the presence of the applicant’s DNA on the Toohey’s New beer can consistent with innocence. It was open to the jury not to accept the arguments advanced by Mr Coroneos and to be satisfied beyond reasonable doubt on the whole of the evidence that the applicant was the second man who got out of the rear passenger side door of the car and broke and entered the home with Tore Bell.
Having independently assessed the whole of the evidence, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence. There is no significant possibility that an innocent person has been convicted: M at 493-495.
For these reasons, I propose the following orders:
Grant leave to appeal against conviction.
Dismiss the appeal.
CAVANAGH J: I have had the benefit of reviewing the judgment of Price AJA.
I have carried out my own independent assessment of the whole of the evidence and am satisfied that it was open to the jury to convict the applicant. In my view, the matters complained of by the applicant were matters for determination by the jury, as the tribunal of fact. Whilst this was a circumstantial case, there was no reasonable hypothesis inconsistent with the applicant’s guilt.
For the reasons identified by Price AJA, the appeal should be dismissed.
RIGG J: I have had the considerable advantage of reading in draft the judgment of Price AJA. I agree with the orders proposed by his Honour. Given his Honour’s comprehensive outline of the evidence, relevant legal principles and submissions on appeal, my reasons need only be brief.
Having undertaken my own assessment of the evidence, I am not satisfied that it was not open to the jury to convict the applicant. My reasons for so finding are similar to those articulated by Price AJA. As against the unchallenged evidence of Levi Ryan that Tore Bell’s female partner Tish was seated in the front passenger seat of the car, the evidence of Z regarding “probably three other guys” in the car was vague, and related to what must have been a brief and distant observation (of no importance to either party at trial, in the way the case was conducted). Y’s evidence regarding four people at the house did not correspond with the CCTV footage or the evidence of Ms McClymont of the people coming from or going to the car; such that he was either mistaken about a fourth person at the house, or that person came from and went to somewhere other than the car or any area captured by the CCTV footage. I regard the precise location of the applicant’s DNA on the beer can as very important to the resolution of the appeal. Had it been on a part of the can other than the mouthpiece the high standard of proof beyond reasonable doubt would not in my view have been met.
It is for these very brief reasons additionally to those of Price AJA that I agree with the orders proposed by his Honour.
**********
Pagliari
R
[2026] NSWCCA 55
(1984) 153 CLR 521
(2020) 267 CLR 654
(2022) 274 CLR 651
(2019) 93 ALJR 1219
(2023) 278 CLR 323
(1994) 181 CLR 487
(2002) 213 CLR 606
(2020) 268 CLR 123
(2011) 243 CLR 400
(2025) 281 CLR 137
(2016) 258 CLR 308
(2007) 228 CLR 618
(2009) 236 CLR 397
(2007) 230 CLR 559