R v Briggs

JUDGMENT

Introduction

1. The accused, Peter Edward Briggs, stands trial on an indictment containing one count, namely that on or about 2 October 2022 he did break and enter a dwelling house at 1/10 Ranclaud Street Merewether, (“the premises”) and therein did commit larceny in circumstances of aggravation namely that he knew persons were inside the premises.

2. The accused applied for the matter to proceed as a judge alone trial, an application to which the Crown consented, so that a judge alone trial order was made on 16 September 2025.

3. I note s133 of the Criminal Procedure Act 1986 (NSW) which requires that this judgment must include the principles of law applied by me and the findings of fact on which I rely, and also that I take into account any warning required by any Act or law to be given to a jury.

4. It is necessary to set out various directions below of which I remind myself. Before doing so, by way of introduction I note the trial was short. Arguments concerning tendency evidence and DNA evidence were dealt with and the evidence in the trial began on 17 September, and closing addresses concluded that same day. The evidence is largely agreed and there is a statement of agreed facts for a fair part of the evidence. The case turns on the DNA evidence; even then, there is little if any dispute as to what that evidence is, with the dispute in the case being whether the DNA evidence together with all the other evidence in the case is sufficient for the Crown to satisfy the high onus it bears of establishing the elements of the alleged offence beyond reasonable doubt. The case is a circumstantial one, and it is necessary for the Crown to prove beyond reasonable doubt that the evidence does not allow for any reasonable inference inconsistent with the elements of the offence being established.

The offence and its elements

5. The offence is created by s112(2) of the Crimes Act 1900 (NSW)**. That section relevantly provides as follows:

(1) A person who--

(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,

is guilty of an offence and liable to imprisonment for 14 years.

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

6. The elements are therefore:

7. There be a “break”; this is satisfied here by the evidence showing a gardening tool (“the tool”), normally outside the premises and not seen inside the premises the night before, being found inside the house the morning after the alleged offence, and with its previously attached tip being broken off and found outside the sliding door giving entry to the premises. That door itself was damaged, consistent with the door being forced open by the tool.

8. There be an entry; the offender must enter the premises. This is satisfied here on the evidence due to the tool being found inside the premises, and the laptop formerly inside the premises no longer being there.

9. A serious indictable offence must be committed; larceny is such an offence, and the taking without permission of the laptop satisfies this element.

10. The matter of aggravation is knowing people were in the premises. By section 105A(2A) it is presumed the alleged offender knew people were present unless the accused satisfies the court that there are reasonable grounds for believing that no one was in the premises. There is no evidence to rebut the presumption, and this element is therefore made out.

11. The case has been conducted without any challenge to the fact that somebody has committed the offence. I am satisfied beyond reasonable doubt that the above elements have been made out. What is in dispute is whether the accused is that somebody.

Directions

8. In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 (and s133 mentioned above) I remind myself of the following principles of law and also, both above and below, set out the findings of fact on which I have relied.

9. I direct myself that the onus of proof is “beyond reasonable doubt” and that the Crown bears the burden of proof.

10. The submissions of both the Crown Prosecutor and Counsel for the accused have been heard. I will consider those submissions and give them such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

11. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

12. I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.

13. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness’s evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me. On the facts of this case there is little if any role for this direction to play, as credit was not an issue with either of the two witnesses that gave evidence.

14. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness’s evidence.

15. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.

16. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is a rational inference (and in relation to an essential intermediate fact as elaborated on below, is the only reasonable inference) that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference.

17. I note that the accused had a right to remain silent when spoken to by police. The accused at the time of being arrested was asked to take part in an interview with police, which he declined. I note that all people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.

18. In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the accused’s silence cannot be used against him in any way at all.

19. The accused in this matter did not give evidence. I remind myself that he has, as we all do, a right to remain silent. I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence.

20. I remind myself that given that we all have a right to remain silent when questioned by police or at trial it would make no sense if having exercised a right given to us by the law an adverse inference could be drawn against us for doing the very thing that the law entitles us to do. In this regard I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused committed the offence charged.

21. I direct myself, as a matter of law, that the accused’s silence in court cannot be used against him. His silence does not constitute an admission and no such inference can be drawn from that fact. Nor must his silence be used by me to fill gaps in the Crown’s case or to make up for what I might regard as deficiencies or defects in the Crown’s case. I must not speculate about what might have been said in evidence if the accused had given evidence.

22. This is a hearing involving a criminal charge of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

23. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.

24. The words “beyond reasonable doubt” carry their ordinary English meaning. There is no mystery to those words. Suspicion must play no part in my function as the judge of the facts. If I feel that the accused may be guilty, and even if I feel that he is probably guilty, as long as I have reasonable doubt about his guilt I must return a verdict of not guilty. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

25. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge.

Inferences

26. Sometimes in a criminal trial, the evidence relied upon by the Crown to prove its case beyond reasonable doubt is what is called “direct evidence”. Direct evidence is a witness saying that he or she saw the accused do something or heard the accused say something, or it might be an admission by the accused that they did or said something.

27. Sometimes, however, proof of one or more of the elements of a particular offence and thereby proof of the guilt of an accused person relies upon the drawing of inferences from direct evidence of proven facts.

28. I may draw inferences from the direct evidence. There is nothing extraordinary about that. We all do it, consciously or otherwise, in our everyday lives.

29. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. In a criminal trial, because of the onus of proof being on the Crown to prove the accused’s guilt beyond reasonable doubt, I need to be very careful about drawing inferences from the facts that I find proven. I must carefully examine any inference or conclusion I may draw and see whether it is a valid conclusion to draw from the evidence, whether it is justifiable on the evidence or whether there may be another explanation that is available which would prevent me from reaching that conclusion beyond reasonable doubt. Speculation or suspicion, even grave suspicion can play no part at all in my deliberations.

30. I am obliged to act only upon the evidence that is before me in the trial and nothing else. That means that if, for example, I took the view that evidence was absent on a topic I must not fill in the gaps by speculating about the evidence. I must not engage in speculation as to what that absent evidence might have established, if anything.

Circumstantial case

31. The Crown case is a circumstantial one. The Crown argues for a conclusion that the accused committed the offence based on proving that the DNA said to be his on the tool came to be on the tool by reason of its use by the accused in committing the offence. There is no dispute that the DNA in question is that of the accused. The remaining fact that the Crown must prove is that the accused’s DNA came to be on the tool by reason of its use by the accused in committing the offence. This is not an element of the offence. However, where a fact is essential or necessary to be found in order for the Crown case to be proved, the Crown must prove it beyond reasonable doubt. This fact is referred to as an essential intermediate fact. If this fact is established then the Crown will have made out that it was the accused who carried out the conduct that I am satisfied beyond reasonable doubt occurred, namely the breaking and entering, the larceny, and knowing that people were inside.

32. It will not be open to me to come to a conclusion favourable to the Crown unless I was first to find as a fact that the accused’s DNA on the tool came to be on the tool because the accused used the tool in committing the offence. As that fact is essential to me coming to a conclusion in favour of the Crown — because the Crown must prove its case beyond reasonable doubt — then I would first have to be satisfied as to the existence of that particular fact beyond reasonable doubt. This particular fact must be proved beyond reasonable doubt not because it alone proves the guilt of the accused but because it is an essential step in the reasoning that the Crown asks me to follow in order to establish its case. Unless that fact is proved beyond reasonable doubt, the reasoning relied upon by the Crown must fail.

33. As I have already said, in relation to facts which are not essential to my process of reasoning, I would not consider those facts I find established by the evidence in isolation, but I would have regard to them as a whole.

34. If I was satisfied beyond reasonable doubt as to the existence of the essential fact, then I can take that fact together with all the other facts I find established and ask whether I can draw an inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown asks me to find is not available then the Crown’s circumstantial case fails. But it is for me to determine what conclusion, if any, can reasonably be drawn from the established facts, and then consider whether there is any other reasonable explanation for those facts other than that of the accused’s guilt. If there is no other explanation consistent with all the established facts considered together, then it would be open to me to convict the accused.

35. If, however, I am not satisfied beyond reasonable doubt as to the essential fact to which I have referred, I must return a verdict of not guilty. I should also find the accused not guilty if, looking at the established facts as a whole I cannot conclude beyond reasonable doubt that he is guilty. As I have said, this would also be the position if, at the end of my deliberations, I am of the view that some other reasonable explanation exists for those facts other than that the accused is guilty.

36. It is appropriate to emphasise that in relation to any other reasonable explanation, on the facts of this case, the Crown must establish beyond reasonable doubt that there is no reasonable alternative hypothesis as to how the DNA came to be on the tool inconsistent with the guilt of the accused. The reasonable alternative hypothesis argued for by the accused in this case is that the DNA came to be on the tool by way of transference. It is not sufficient for the Crown to establish that it is more likely than not that the accused DNA came to be on the tool because he used it in committing the offence. The Crown must prove beyond reasonable doubt that the accused’s DNA did not come to be on the tool by way of transference. In that regard I repeat my earlier direction as to the standard of proof of beyond reasonable doubt.

Mahmood

37. Mr Pezet has not been called by the Crown to give evidence. The evidence of the officer in charge was that no statement had been taken from him because he had moved to Melbourne to play football. At [40]-[41] below I explain why I consider it appropriate for there to be a Mahmood direction, which is as follows.

38. I can take the fact that there was no evidence from that witness into account when I decide whether the Crown has proved the guilt of the accused.

39. I cannot guess what Mr Pezet would have said if he had been called. However in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a finder of fact is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt.

The evidence

Agreed facts

40. Exhibit B was a statement of agreed facts. I accept the facts that are set out of which the following points are a summary:-

41. The residents of the premises were Mr. William Peden and his daughter Zoe.

42. There is an enclosed outdoor area at the front of the premises. Within that front enclosed area is a side gate beyond which is a path that leads to a rear enclosed area.

43. Mr. Peden generally kept a gardening tool on a table in the rear outdoor area or courtyard. That tool was on the premises when he moved in. The facts do not disclose when Mr Peden moved in. As far as he is aware the tool had never left the premises while he was there. He said he probably touched it but did not do a lot of gardening.

44. On the evening of 2 October 2022, Zoe Peden and her then boyfriend, a Mr. Pezet was on the premises. It is not expressly stated but can be inferred and was said in submissions without challenge that Mr. Peden was not present. Ms. Peden and Mr. Pezet went upstairs to bed at about 11 PM. At about 11:45 PM they heard a noise downstairs. Mr. Pezet investigated but returned saying there was nothing down there.

45. The next morning at about 8 AM on Monday, 3 October 2022 Ms. Peden went downstairs and saw the glass sliding door to the lounge room was partially open. This was the door that leads to the rear outdoor area. The gardening tool was on the dining table inside the premises. It is agreed that it had not been there when Ms. Peden went to sleep. Mr. Peden’s Apple MacBook Pro laptop computer was missing and police were called.

46. Zoe Peden called her father and he, Mr. Peden, returned home he saw the gardening tool on the dining table and that the tip of the gardening tool was on the ground near the glass sliding door to the lounge and that there was damage near the locking mechanism of the door. He had not noticed the tool to be broken or the door to be damaged in that manner previously.

47. Exhibit C are photographs of the scene. They assist in understanding the layout of the premises described above. Further, photograph 9 shows the tip of the gardening tool on the ground and photograph 12 shows the tool with the tip broken off.

48. At about 2 PM on Monday, 3 October 2022 a scene of crime officer attended the residence and conducted a forensic examination including taking a trace DNA tape lift from the handle of the gardening tool. That officer also developed a fingerprint on the opening edge of the glass sliding door between the rear enclosed area and lounge room. The quality of the impressions of the fingerprint did not permit the officer to identify or exclude William Peden or the accused as the source of the fingerprint.

49. On 1 September 2023 the accused was arrested and declined to take part in a recorded interview as is his right and I note the directions given about his right to silence above. A sample of his DNA was obtained and was later sent for analysis. That analysis is the subject of report of Ms. Wyner whose evidence is detailed below.

50. William Peden and Zoe Peden do not know the accused and to their knowledge he had never been to the premises.

51. It is to be noted that the agreed facts say nothing about Mr. Pezet knowing or not knowing the accused in the same way that is said about the Pedens. There was an argument between the parties as to whether it was appropriate to give myself a Mahmood direction. The Crown’s argument was that Mr. Pezet was not an essential or material witness. The Crown referred to the decision of Singh v R [2025] NSWCCA 34. The facts of that case were vastly different and the witness in question who had not been called was a person to whom a complainant in a case of sexual assault had made a complaint. On the reasoning of Chen J it was to the benefit of the accused for the direction not to be given and in fact the direction had not been asked for before the summing up and was only raised as a query after the summing up. I note as cited at [124] of Singh, in Mahmood itself, the need for the direction arises where a witness who “might have been expected to be called and to give evidence of the matter is not called by the prosecution”.

52. There is a large focus in this case on the issue of transference and with that questions as to whether the Crown can show that not to be a reasonable hypothesis. Nothing is known about Mr. Pezet other than at the time of the offence he was the boyfriend of Zoe Peden, and that he has moved away to Melbourne to play football. The Crown has considered it relevant, and it is, to evidence the lack of connection between the accused and the Pedens. One of the Crown’s submissions made for a finding favourable to the Crown as to the intermediate fact was that the accused was not known to the Pedens. In my view it is equally relevant to address any possible connection between the accused and Mr. Pezet. It was for that reason that I consider it appropriate to give myself the Mahmood direction above.

Officer in charge

43. The officer in charge who gave evidence was Senior Constable Mark Keeping. He gave evidence that the residence of the accused at the time of the offence was 595 High St., Maitland, a driving distance of some 40 to 50 minutes from the premises. He was not able to say whether or not the accused was at that address on 2 October 2022. He took statements from William and Zoe Peden, but not from Mr Pezet who had moved away to Melbourne. In cross examination he agreed with the proposition that people who live in Maitland commonly interact with Newcastle which I take to also include Merewether. The officer also agreed that in the Merewether area there are a number of hotels and car parks. The point sought to be made by this evidence was that there was some potential for transference. In my view in the absence of any evidence concerning the accused himself this evidence does not add anything. That is not to in any way reverse the onus and place some kind of onus on the accused; rather it is simply to remind myself that in considering whether the Crown has made out its case and in particular established beyond reasonable doubt that the alternative hypothesis is not a reasonable one I must not engage in conjecture but must consider the matter based on the facts established in the case in the way explained in The Queen v Baden-Clay [2016] HCA 35; see eg at [47].

Nicole Wyner

44. There was really no dispute over the evidence given by Nicole Wyner. Ms. Wyner holds a Bachelor of Forensic Biology in Biomedical Science and a Bachelor of Forensic Science (Honours) in Applied Chemistry. She provided an expert report which became exhibit E. That expert report dealt with the DNA sample of the accused which had been obtained by way of a tape lift from the handle of the tool which I have found was used to affect the break in the subject of the charge.

45. In Ms Wyner’s evidence in chief she confirmed the matters in her report and also gave further evidence about certain possibilities and different scenarios as to how the accused DNA could have come to be on the tool. Similarly in cross examination there was evidence of such possibilities. Relevantly the evidence of Ms. Wyner can be summarised as follows:-

46. She determined that the DNA recovered from the tape lift from the handle of the tool was a mixture that originated from at least two individuals.

47. The major contributor to the DNA profile was the same as the DNA profile from the reference sample of the accused. The DNA of the minor contributor was too weak for any comparison.

48. The DNA profile cannot establish when the DNA was deposited, how it was deposited or who touched an item in what order or any of the activities surrounding the deposition of that DNA.

49. No biological testing was carried out so it cannot be said what the biological source of the DNA is, for example blood or semen or what was referred elsewhere to as trace DNA meaning skin cells.

50. Ms. Wyner was taken to her appendix which refers to different ways that DNA may be transferred and was asked to comment on direct transfer and indirect transfer. These are the two main ways DNA can be deposited onto an item. Direct transfer is when the DNA is transferred onto an object directly by the person and she gave the example of a person picking up a cup so the DNA may transfer from the person to the cup. It could also be by way of a sneeze which is not relevant to this case.

51. Indirect transfer is when DNA is transferred to an object by way of some sort of intermediary. Using the cup example if person A was to pick up the cup there may be some DNA transferred from A to the cup, and then if person B comes to touch that cup then some DNA could end up on B’s hand despite B not having contact directly with person A.

52. Importantly in my view, at T 75 having just explained the two types of transfer of direct and indirect there was this question and answer:

Q. Generally, is one method more likely to transfer DNA to a final item than the other?

A. I can't say whether or not one is more likely. There are a lot of different factors that affect whether or not DNA will transfer, but I can't say which one is more likely.

8. Still in chief Ms. Wyner agreed that the longer the period of contact between a person’s hand and an object the more likely there would be direct transfer. As will be seen below the Crown’s submission seek to make use of this point, but as I understood the evidence this fairly obvious observation did not detract from what was said to T 75 just quoted.

9. Ms. Wyner then agreed that the factors relevant to direct transfer were also relevant to indirect transfer but there were additional factors as well, specifically the number of transfer steps. For each transfer there is a loss of some DNA and also there needs to be considered the time and the events that have taken place in between each of the transfer steps. For example how many times the hand has had contact and lost some of the DNA or how many times the hand may have been washed or any number of day-to-day activities.

10. Ms. Wyner was asked if she would expect the intermediary's DNA to also be transferred onto the final item. The reference to intermediary is a reference to the hypothetical person to whom the accused’s DNA has been transferred, and who then transfers it to the tool. Her answer was that the studies have arrived at different results and it is not something that she can comment on. She was also unable to comment on whether you would expect more or less of the intermediaries DNA on an item to which there had indirectly been transferred DNA of a source individual.

11. On the basis of the profile alone she cannot comment as to when the DNA came to be on the relevant object.

12. Nor can she say whether the major and minor contributors were placed on the object at the same time.

13. In her evidence in chief she was then asked to consider some different scenarios and for this purpose reference was made to the photographs which were exhibit C as well as some of the agreed facts. The following emerged from this evidence:

14. She was shown photographs of the courtyard area where the tool had earlier been, the sliding door from the courtyard to the lounge room, and the tool and dining table. She was asked to accept the agreed facts that Mr. Peden and his daughter did not know the accused and to their knowledge the accused had never been to the premises. The scenario put to her was of the tool being located outside the courtyard prior to the offence, and had been used though not often before the offence by Mr. Peden. Further that the accused attended the house and picked the tool up by the handle and used it to open the sliding door with such force that the door opened and the tip broke off and then left it on the dining table where it remained for less than a day before the tape lift was taken. She was asked if that scenario would explain the mixture of DNA on the tape lift. Her answer was that the accused was the major contributor meaning that something with his DNA had come into contact with the tool “whether it’s his hand or another person’s hand”. She said he is contributing the most amount of DNA to the DNA profile. She said to be handling a garden tool and applying force to open up the door is reasonable to expect that DNA would transfer onto the tool. In answer to a following question she made it clear that she cannot say that this scenario is more likely than another scenario but that it is possible; see at T79.1-.7 which is a little unclear due to a fault in recording.

15. Ms. Wyner then accepted that the scenario was a likely explanation without comparing it to anything else. She also allowed that it was possible that Mr. Peden was the minor contributor but she cannot include or exclude anybody due to a lack of information. Pausing there what this evidence establishes really is nothing more than the feasibility of the Crown’s preferred scenario and does not go to proving that the alternative scenario is not a reasonable one.

16. The Crown then fairly put the alternative scenario. That was to assume that it was somebody else using the tool and not the accused and that person had previously come into contact with the accused. The question was whether that scenario was capable of explaining the mixture of DNA located on the tapelift and the answer was “it is possible yes”. Ms. Wyner went on to say at T 79.34:

If there is sufficient amount of DNA transferred onto that person's hand, and if that person still had enough of Mr Briggs' DNA on their hand when they came into contact with the tool, then I can't rule that out as a possibility.

Q. We have discussed the factors that affect transference when considering the likelihood of indirect transfer.

A. Yes.

Q. You say it's possible, but it's those matters that will affect the likelihood of that?

A. Yes. It will depend on the factors: The time that happened in between the initial contact and handling the tool, and, and whether or not enough DNA was transferred in the first place.

Q. And I think you said the nature and duration of contact between the accused and the intermediary at the start?

A. Yes, correct.

Q. And I think you said the time and events that take place between that primary - the contact between the accused and the intermediary, and the intermediary and the final object?

A. Yes.

47. It is really these answers that are the crux of the Crown’s argument that transference is not a reasonably open alternative hypothesis. The Crown relies on matters such as the late time of evening when the offence took place to suggest that significant time had passed since the hypothetical transference thus rendering it less likely to be a case of transference. There is perhaps some weight in the argument as to time but there is simply no evidence as to the amount of DNA transferred in the first place nor the nature and duration of any contact between the hypothetical intermediary and the accused. It is of course vital to remember that the onus remains on the Crown. The matter should not be viewed by saying there is no evidence of the hypothesised initial contact, as to do so runs the risk of reversing the onus; the correct approach is that transference is a possibility and there is no evidence from the Crown as to the nature and duration of any hypothesised earlier contact. The Crown does have evidence of the time of the offence of 11.45PM, which allows for some weight to be placed on the possibility of some time passing between initial contact and use of the tool, and also the fact of the accused residing a fair way from the premises, which gives some basis for considering the alternative possibility to be unlikely.

48. That concluded the evidence in chief. Ms. Wyner was then cross-examined. In cross examination Ms. Wyner confirmed her evidence that she cannot comment on whether the scenario of Mr. Briggs using the tool to break into the house was more likely than another scenario. She stated it was possible the DNA of Mr. Briggs could have been indirectly transferred. Ms. Wyner agreed that she cannot tell how the accused DNA was deposited on the garden tool. She accepted that the minor contributor may have been somebody other than Mr. Peden, with the clear implication being suggested that it may have in fact been the intermediary.

49. In a series of questions at T81 relating to transference it was accepted that in cases of transference it is possible that DNA may come to be on an object by transference even if the object had initially been handled by somebody else. The point here is that if two people had touched an item it may be that only the DNA of one of them comes to be on the item or that there might not be DNA of good enough quality to identify or exclude that person’s DNA. Reference is also made to tertiary transfer that, is Ms. Wyner accepted that transference can extend beyond what I might term one link. What this evidence sought to emphasise on the facts of this case is that the fact of the accused being the major contributor does not show it is not a case of transference; that is, in a case of transference, the person whose DNA is being transferred, whilst not coming into direct contact with the object in question, here the tool, may be a major contributor. This evidence is consistent with Ms Wyner’s evidence in chief.

50. A scenario was put whereby the accused may have met somebody at a hotel and shaken hands with them and that person then went on to touch the tool. With respect that scenario does not advance matters from the accused perspective. It does not impact on whether the Crown has shown beyond reasonable doubt that the alternative hypothesis is unreasonable. This is because there is simply no evidence of the accused activities on the night in question and it would be conjecture to find as a fact some interaction with others. The scenario then put of saliva from a beer glass being drunk from by Mr. Briggs then being touched by the “real” offender has the same problem.

51. There was then evidence of other possibilities as to people having greater quantities of DNA who are referred to as good shedders, and other people who are known to load up their hands with DNA by their everyday activities for example by sneezing into their hands. Ms. Wyner agreed there was no way of knowing from the DNA profile whether the source of their profile was such a person.

52. At T 83 Ms Wyner was asked about the effect of greater contact with an item, and that she had agreed that the greater the contact the more likely that DNA would be left. She accepted she had said that. She then however agreed that it is not necessarily the case that the greater the contact the more likely there will be DNA. Ms Wyner’s evidence was that it was variable; she said contact with an item may not leave any DNA, or it might leave a lot of DNA.

53. A further scenario was of Mr. Briggs coming into contact with Mr. Peden and the transfer occurring that way. With respect there is simply no evidence to support that possibility.

54. The conditions for DNA to persist or last for a longer rather than a shorter period of time were raised with Ms. Wyner suggesting a cool dark environment is best. She noted that exposure to UV rays can occur undercover which I infer means would lead to deterioration in the DNA. If stored in the right conditions DNA can last for years. In re-examination she was taken to the photograph of the courtyard and said that they were not ideal conditions. Ideal conditions were protection from UV light heat and moisture.

55. By consent some further questions were then asked by the Crown. The matter may have already been covered but what was asked was whether if there was an intermediary involved would you expect the DNA of the intermediary to be on the handle of the tool and the answer was that she could not comment whether or not she would expect the DNA to be there due to the variables regarding whether or not they (the intermediary) will leave DNA. Those variables were the amount of DNA that particular intermediary sheds and the conditions in which they were holding the tool; for example whether they were wearing gloves. As a layman I found that a little odd for if gloves are worn how will the transfer occur, of either the transferee or the originator? Putting that query to one side the Crown then asked Ms. Wyner to assume gloves were not worn; her answer was that it’s not necessarily true that the intermediary not wearing gloves would leave DNA, which she confirmed was possible even if the DNA of the accused (as the “originator”) had been left. She said she could not rule this out as a possibility but could not comment on whether it was likely or not.

56. The final question asked by the Crown and the answer was as follows:

Q. Can you compare the scenario between direct - compare in terms of likelihood of the scenario between direct transfer and indirect transfer?

A. I can't comment on that.

The issue

57. As has been clear from the outset, and whilst it always remains for the finder of fact to be satisfied to the relevant necessary standard for the facts and elements to be established, the issue in this case concerns the intermediate fact. There was no dispute that each of the necessary elements to make out the commission of an offence have been established. What remains is to determine whether the Crown has established that the conduct was carried out by the accused. The competing arguments of the accused and the Crown have been touched on above and are considered more fully below.

58. The accused of course bears no onus at all. It is that fundamental aspect of the structure of a criminal trial that renders otiose any contemplation of the question of whether the accused has put forward some explanation of how his DNA came to be on the tool. As directed above, the onus is on the Crown to prove, beyond reasonable doubt, that there is no reasonable alternative scenario inconsistent with guilt.

Consideration and findings

59. I am satisfied beyond reasonable doubt of the matters set out in the agreed facts in exhibit B.

60. I accept the opinions expressed by Ms Wyner as recounted above. Ms Wyner’s evidence was not challenged; rather each party sought to gain her agreement or disagreement to various scenarios.

61. The Crown has established that an offence occurred, namely that there was a break and enter, that larceny occurred, and that whoever committed those acts was aware that people were inside the premises; see section 105A(2)(a) of the Crimes Act.

62. What is in issue is whether it was the accused who was the person who carried out those acts. That is, has the Crown proven, beyond reasonable doubt, that it was the accused who so acted.

63. The Crown seemed to accept that something more was needed beyond the fact of the accused’s DNA being on the tool in order for the onus it bears of beyond reasonable doubt to be met; even if that was not the Crown position, in my view it is the correct approach. In this regard both parties helpfully made reference to various cases, though on their facts the cases are readily distinguishable. The cases of Fitzgerald [2014] HCA 28 and Ignatov [2018] NSWCCA 217 were referred to. In both those cases the Crown relied on DNA evidence. Those cases show that the Crown must establish beyond reasonable doubt that there is no reasonable alternative hypothesis as to how the DNA came to be on the tool inconsistent with the guilt of the accused. That is the import of these cases, and reflects the direction above as to circumstantial reasoning. Thus in Fitzgerald, the Crown was unable to establish what was necessary because it was unable to prove on the evidence beyond reasonable doubt that the DNA in that case had not come to be on the didgeridoo by way of transference. In that case there was evidence, inter alia, of the accused having shaken hands with a person who was established to be at the scene of the crime, allowing for the possibility, on the evidence, that transference occurred in that way. There were other factors also in that case, and the High Court quashed the conviction and directed a judgment and verdict of acquittal be entered. In contrast, in Ignatov the alternate scenarios being put forward to explain how the accused’s DNA being found high up in the genitalia of the complainant included transference by towel, or by the complainant child being a second intermediary and touching herself giving rise to that result. The result of that case was that these alternate scenarios were not reasonable, and the DNA evidence allowed for the inference that the sexual assault was carried out by the accused.

64. In considering alternative scenarios it is important that the alternative reasonable inference rests upon more than mere conjecture. The alternative scenario must be an available inference able to be drawn from the facts found to be established by the evidence; see Baden-Clay at [47].

65. The alternative scenario that arises in this case is from the evidence of Ms Wyner and is that the DNA of the accused has come to be on the tool by way of transference. Ms Wyner’s evidence was that she is unable to say, based on the DNA testing, whether the DNA on the tool came to be on the tool directly or indirectly, that is, by transference.

66. In arguing that the only reasonable inference is that the DNA of the accused came to be on the tool during the commission of the offence the Crown argued as follows:

67. The tool was kept outside in the courtyard. And I would add, based on the photographic evidence, the courtyard was at the rear of the property.

68. The tool was broken, and with the tip of it which had broken off being photographed on the patio.

69. The tool was found inside the premises, that is, not where it usually was, and in its broken state. I am satisfied beyond reasonable doubt that the tool was used to gain entry to the premises, and that it was broken in being so used, and that it was moved from outside to inside in the course of the offence being committed.

70. The accused was not known to the residents of the premises, Mr Peden and Zoe Peden. That is an agreed fact and I accept it. Mr Peden was not at the premises at the time of the offence, and another person was, a Mr Pezet. There was no evidence from Mr Pezet, nor as to whether or not he knew the accused. I note the Mahmood direction above.

71. The backyard is not an ideal place for the keeping of DNA. The inference sought here is that the DNA came to be on the tool closer to the date of the offence rather than historically, due to the presence of the DNA being able to be detected.

72. That based on the evidence of Ms Wyner it was reasonable to expect the DNA to be on the tool given the degree of force that would be needed to use it to gain entry.

73. In addressing the issue of the alternate possibility, the Crown accepts that Ms Wyner allowed that it was possible for the accused’s DNA to have come to be on the tool indirectly, that is by way of a form of transference. The Crown made an argument as to why it had established beyond reasonable doubt that this was not a reasonably open inference, but also submitted that Ms Wyner was talking of “theoretical possibilities”. That may be a reasonable way to term the concession, but in my view it does not advance the Crown case. The evidence of Ms Wyner is her expert opinion, which is in the field of identifying DNA and expressing a view as to how DNA may come to be where it is found, and is simply that it is a possibility that the accused’s DNA came to be on the tool by transference. That possibility is not made any less by adding the descriptor of “theoretical”.

74. I accept the submission of the Crown that what needs to be determined is whether, based on all the evidence, this alternative possibility is, on the facts of this case, reasonable, and bearing in mind that more is needed than conjecture, as noted above. That is, the Crown must prove beyond reasonable doubt the alternative scenario or possibility is not reasonable.

75. The Crown argues that the tool must have been used in the commission of the offence. I accept that on the basis of the facts recounted above making out beyond reasonable doubt that an offence occurred.

76. Next the Crown says that given the duration of the use of the tool, that is why the DNA is on it. With respect that does not follow from the expert evidence; the amount of DNA cannot be quantified, other than to say it is sufficient to permit a profile. Ms Wyner did agree in chief that the longer the contact with an object the more likely there would be a direct transfer; but she then accepted in her cross examination that being in contact with an object may or may not leave DNA; it may leave none, little or a lot. The evidence also does not mean that if the tool is used for a lengthy time, that it is the DNA of the user that is more likely to be left, as opposed to the DNA of what I have termed above “the originator”. I would also note the evidence does not allow for an accurate or meaningful assessment of just how long the tool was used; is it a matter of seconds or minutes?

77. I do take the fact of the DNA of the accused being on the tool and being the major contributor into account in the overall assessment of the facts, but it adds little as that fact is the cornerstone of the possible alternative; the weight to be given to this is lessened by the evidence of Ms Wyner that the DNA of the originator can be the major contributor.

78. The Crown argued that the most likely contact events occur with the use of the hand. The point here was to render the transference scenario less likely by saying that the intermediary would often be using their hand in ordinary daily life, including washing their hands. The difficulty with that submission is it is very general, and not based on the facts of this case, and without any supporting facts is really a generalised statement.

79. In furtherance of this submission it was argued that the time of the offending, which I accept was at about 11.45pm based on the agreed facts of when the occupant thought they heard something downstairs, also makes the transference scenario less likely, because 11.45pm is late in the evening and there are less people about. The inference asked to be drawn is that it must have been some time had elapsed between the supposed transference and the offending. As a matter of logic, and based on Ms Wyner’s evidence, I accept that the longer the period that passes between the time of transference and the offence, the less likely it is that DNA would be on the tool by way of transference. Yet that argument is also based on the general, and not on any fact established particular to this case.

80. The Crown relied on the fact of the residence of the accused being in Maitland, which the evidence of the officer in charge showed was some 40 to 50 minutes drive from the premises in question. The point being made was that evidence suggests the accused is ordinarily some distance from where his DNA has been found, and that in order for his DNA to get on to the tool he needed to be near the tool. That argument has some initial attraction, but upon scrutiny its attraction diminishes. That is because the alternative hypothesis is of transference, and for that to occur, by way of an intermediary, does not require the accused to be near the premises which were at Merewether. That said, the offender plainly was at Merewether, and the fact of the accused residing some distance from Merewether does add to the unlikelihood of transference. I note also the evidence of the officer in charge that it could not be said the accused was in Maitland that day. That said, it is a matter on which I place some weight favourable to the Crown.

81. For the accused it was argued that the Crown case relies wholly on the DNA, and that is not enough. The accused sought to rely on evidence of the officer in charge of there being pubs and clubs in the Merewether area, and that people from Maitland venture to Merewether and Newcastle. For reasons given above, I do not find that evidence assists the accused.

82. The accused emphasised the favourable parts of the expert evidence, noted above, but in particular, that the DNA profile cannot establish when the DNA was deposited, or how it was deposited, or any of the surrounding circumstances as to the deposition. The expert could not say which method of transfer, direct or indirect, was more likely. An originator may be the major contributor.

83. The short point for the accused is that on the available evidence the Crown is unable to show beyond reasonable doubt that the alternative scenario is unreasonable. As Mr Quinn put it, the accused says “It’s not enough”.

Conclusion

78. As can be seen from the above consideration I consider that some weight can be placed on most of the factors the Crown points to. For example the fact of the accused residing in Maitland; the fact that the likelihood of the DNA being on the tool by way of transference is diminished due to the lateness of the evening and the frequency with which a person uses their hand, so that any transference may have been removed by the time the offence took place. I will not repeat the considerations above, the point is to say that there are factors in the case put forward by the Crown that do make it less likely that the DNA of the accused was found on the tool due to transference as opposed to being placed there directly by him in the commission of the offence. It is also important to ensure that all of the evidence is considered together. It is possible that although one particular or any number of factors may be given modest weight, taken in combination the high onus that needs to be met can be met. I have taken that approach to determine the outcome.

79. The difficulty in the Crown case is that being an essential intermediate fact the matter the needs to be proven beyond reasonable doubt. I am satisfied that it is more likely than not that it was the accused’s DNA came to be on the tool by direct transfer. That of course is not the test. I remind myself of the basic direction as to the standard of proof, set out above:

If I feel that the accused may be guilty, and even if I feel that he is probably guilty, as long as I have reasonable doubt about his guilt I must return a verdict of not guilty.

80. The conclusion I have come to is that there is merit in the accused argument that there simply is not enough evidence to make out the Crown case. The matters relied on by the Crown, taken together, do not satisfy me beyond reasonable doubt that the possibility allowed for by Ms Wyner, that the DNA came to be on the tool by way of transference, is not reasonable.

Verdict

1. On the one count on the indictment that the accused on or about 2 October 2022 at Merewether in the State of New South Wales did break and enter the dwelling house at 1/10 Ranclaud St Merewether and therein commit a serious indictable offence, namely, larceny, in circumstances of aggravation, namely he knew there were persons inside the dwelling house of the accused is not guilty.

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