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[2020] QCA 163
respondent. The appeal against conviction was dismissed: [82].
No linked legislation citations have been extracted yet.
The prosecution relied on DNA found on items left at the robbery scene to identify the appellant. He argued that the DNA might have reached the items innocently through his gardening business, which sold some similar categories of goods. The Court of Appeal held that the evidence did not link the particular items used in the robbery to products sold or handled at his shop. The proposed transfer explanation therefore required speculation rather than arising fairly from the evidence. Considering the case as a whole, the court found no reasonable innocent inference open and dismissed the appeal.
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2,275 words · generated 02/10/2026
The case concerned a conviction appeal arising from an armed robbery at the Currumbin Creek Tavern. In the early hours of 25 October 2009, an offender entered the tavern while two employees, Ms King and Mr Edwards, were working. The offender used an imitation pistol, restrained both employees, and made Mr Edwards open the office safe. The offender's face was covered, and neither employee identified him. Both described his voice as deep [9]-[15].
A jury convicted the appellant of entering premises with intent to commit an indictable offence, armed robbery with personal violence, and two counts of deprivation of liberty. The appeal was heard by Holmes CJ, Morrison JA and Wilson J. Holmes CJ and Morrison JA agreed with Wilson J's reasons. Wilson J delivered the substantive reasons, and the court dismissed the appeal [1]-[3], [81]-[82].
The prosecution's identity case depended on DNA. The appellant's DNA profile, in incomplete or mixed form, was found on five items associated with the robbery: possible glove material attached to tape from the imitation pistol; its trigger guard; possible glove material attached to duct tape found in the downstairs bar; and cable ties found in the upstairs office, both on tiles and carpet [26]-[38]. Wilson J recorded that the prosecution had no case against the appellant without the DNA evidence [6].
The appellant did not principally dispute that the DNA profiles matched him. His argument was about how his DNA came to be on the items. He said he owned hydroponic supply businesses that sold gloves, cable ties and duct tape, and that he handled most of the stock at the Burleigh Heads shop [39]-[50]. The suggested explanation was that his DNA had been deposited on products through ordinary business handling and that the offender later obtained and used those products, perhaps with further transfer between objects [68]-[71], [77].
The court considered that explanation alongside the other evidence, including the appellant's alleged familiarity with the tavern, the unclear CCTV image said to show markings resembling tattoos, and the employees' descriptions of the offender's voice [51]-[64]. It regarded the tattoo comparison as having little or no probative value and the tavern-familiarity evidence as not especially compelling. The appeal nevertheless failed because the central alternative explanation for the DNA did not have a sufficient evidential foundation [55], [58], [76]-[81].
Wilson J framed the principal question as whether there was a reasonable hypothesis consistent with innocence explaining why the appellant's DNA was on items used by the offender. The trial judge had directed the jury to consider whether the DNA could have been transferred innocently, including through another person obtaining tape, ties and gloves from the appellant's gardening business. The appellant did not complain about those directions [68]-[70].
The governing approach was to assess the whole of the evidence, rather than consider each circumstance separately. Wilson J referred to the circumstantial-evidence principles in Coughlan v The Queen and R v Baden-Clay: the appellate court must weigh all the circumstances when deciding whether guilt was proved beyond reasonable doubt, and a guilty inference is not open if a reasonable inference consistent with innocence remains [66]-[67]. The judgment's task was therefore not simply to ask whether DNA transfer was scientifically possible. It was to ask whether the particular innocent explanation was reasonably open on the evidence in this case.
The forensic evidence established that DNA may be deposited through direct contact or through secondary or tertiary transfer, and that testing cannot determine which mechanism occurred [22]-[24]. That evidence explained why a DNA match does not, by itself, identify when or how the DNA arrived on an object. But the existence of possible transfer mechanisms did not establish that the appellant's proposed route had occurred. Wilson J emphasised that the appellant's hypothesis depended on the offender obtaining the relevant objects from his business [77].
The evidence about the business was general. The appellant said the shop sold gloves, cable ties and duct tape, and that he handled most of its stock. But there was no evidence identifying the possible glove fragments, cable ties or duct tape found at the tavern as the same as, or similar to, the products he sold or handled. The appellant had not been shown photographs of the relevant items to identify them. Nor was there evidence that the shop sold cable ties individually or in packets [42]-[50], [78].
The evidentiary gap was particularly marked for the alleged glove fragments. The items were described as possible pieces of glove, but no witness established that they came from actual gloves, let alone from gloves of a type sold by the appellant [27]-[29], [33]-[34], [79]. The court considered that treating them as products from the appellant's shop would require speculation.
The judgment also addressed the appellant's reliance on Fitzgerald v The Queen. There, the High Court allowed an appeal where alternative DNA-transfer explanations were reasonably open on the evidence, including a hypothesis involving a particular occasion on which another person may have transferred DNA to a didgeridoo. Wilson J distinguished that case: here, the evidence did not provide comparable particularity about a transfer event or establish a connection between the appellant's business and the items at the tavern [73]-[75].
The result followed from that evidentiary distinction. Wilson J accepted that DNA might be transferred in different ways, but held that the proposed business-based explanation did not fairly arise from the evidence. After weighing the circumstances together, the court found no reasonable inference consistent with innocence open and concluded that guilt was the only reasonable inference [76]-[82].
The judgment did not purport to change the law of circumstantial evidence or DNA evidence. It applied principles drawn from the authorities it cited. Before Hasrouny, the relevant framework, as stated in the judgment, required a court to assess all the circumstances together and to ask whether a reasonable inference consistent with innocence remained open [66]-[67]. A bare possibility of innocence was not enough; the hypothesis had to be reasonably grounded in the evidence [67], [76]-[77].
The decision's contribution in this case was an application of that framework to a proposed innocent explanation based on commercial handling and DNA transfer. The court separated two questions: whether the appellant's DNA was present on the relevant items, and whether there was a reasonable innocent explanation for its presence [68]. The appellant's argument focused on the second question.
The forensic evidence made transfer scientifically possible, but the court required an evidential connection between the proposed source of the items and the items recovered at the scene. General evidence that the appellant's shop sold categories of products that included gloves, cable ties and duct tape did not identify the particular items or show that they came from the shop [78]-[80]. On the court's reasoning, a scientifically possible mechanism and a general opportunity for contact did not, without more, make the suggested factual sequence a reasonable inference.
The distinction from Fitzgerald is important to the judgment's reasoning. Wilson J did not reject the relevance of alternative transfer hypotheses. Rather, she contrasted the evidence in Fitzgerald, where specific occasions for secondary transfer were reasonably open, with the absence here of comparable evidence connecting the appellant's DNA to the scene items through his business [74]-[75]. The judgment thus illustrates how the strength of a transfer hypothesis depends on its evidential particulars, not only on general scientific evidence that transfer can occur.
The judgment's result was that this appellant's conviction appeal was dismissed. It does not establish that DNA evidence alone will always be sufficient, or that a retail business can never provide an innocent explanation for DNA found at a crime scene. Its stated conclusion was tied to the lack of evidence connecting the products sold by this appellant to the specific items recovered at the tavern [78]-[82].
At [66], Wilson J stated that sufficiency in a circumstantial case requires the appellate court to weigh all the circumstances when deciding whether guilt was proved beyond reasonable doubt. In plain English, the evidence must be assessed as a whole, not by isolating one fact from the rest.
At [68], the judgment identified the real issue as not whether the DNA profiles matched, but whether there was a reasonable innocent explanation for their presence. This distinction matters because a DNA match and proof of the route by which DNA reached an object are different evidentiary questions.
At [76], Wilson J described the appellant's transfer explanation as “not reasonable” because it was based on conjecture and speculation. In plain English, the court considered that the explanation was possible in the abstract but was not supported by enough evidence to be a reasonable inference in this case.
At [77], Wilson J stated that an alternative hypothesis “must arise fairly upon the evidence.” This means a proposed innocent account needs a foundation in the evidence, rather than relying on a chain of assumptions.
At [78]-[80], the court identified the missing link: there was no evidence that the items at the tavern were the same as, or similar to, products sold or handled at the shop. The court also noted the uncertainty about whether the apparent glove fragments were pieces of actual gloves. In plain English, the evidence established general product sales, not the origin of the specific crime-scene items.
At [81], Wilson J concluded that, after considering all the circumstances, guilt was the only reasonable inference open. The court consequently dismissed the appeal [82].
The reasoning is relevant to cases where the prosecution relies on circumstantial evidence and the defence proposes an alternative explanation for a forensic finding. In particular, the judgment addresses a proposed DNA-transfer explanation based on ordinary handling of commercial products, followed by the products' later use at a crime scene [68]-[80].
Its reasoning may be pertinent where the parties accept that a DNA profile is consistent with a person, but dispute when, how or through what chain of events the DNA arrived on an item. The judgment records that DNA testing could not identify whether transfer was direct, secondary or tertiary [22]-[24]. It shows that the court will still assess whether a particular proposed transfer sequence is fairly supported by the evidence.
The factual feature that mattered here was not simply that the appellant sold products of the same broad categories as objects found at the scene. It was the absence of evidence tying the specific objects to those products or to the shop. The judgment notes the lack of identification evidence, the absence of photographs being put to the appellant for that purpose, and the uncertainty about the supposed glove fragments [44], [46], [78]-[80].
The case also illustrates the contrast with a hypothesis supported by more particular evidence. In its discussion of Fitzgerald, Wilson J referred to evidence from which particular occasions for secondary transfer were reasonably open [74]-[75]. The judgment does not specify a universal level of detail required in every case; rather, it explains why the broad, unconnected possibility advanced in Hasrouny was insufficient.
The supplied judgment contains no discussion of decisions delivered after R v Hasrouny [2020] QCA 163, and the source material provided here does not include later judgments. It is therefore not possible, on this source alone, to report whether later courts have followed, distinguished or otherwise treated Hasrouny.
The judgment itself records the authorities it used. It cites Coughlan v The Queen for the appellate approach to circumstantial evidence, cites R v Baden-Clay for the need to assess all circumstances together and the distinction between reasonable inference and conjecture, and distinguishes Fitzgerald v The Queen on the evidential basis for the proposed DNA-transfer hypothesis [66]-[75]. Those are the precedent relationships expressly addressed in the supplied text.
For research purposes, any account of post-2020 treatment would need to be checked against subsequent reported judgments. This deep dive does not assert that such treatment occurred or characterise it without those sources.
The judgment does not prescribe a fixed evidential checklist for DNA-transfer explanations. It explains why this appellant's particular hypothesis failed, but does not specify how much evidence in another case would be enough to connect a suspect's business products to items found at a crime scene [77]-[80].
The judgment records limitations in the forensic evidence, including that testing could not distinguish primary, secondary and tertiary transfer and that the trial evidence did not establish how long DNA degradation might take [22]-[24]. It does not decide how those limitations should be addressed in a case with more specific evidence about the origin, handling or history of an item.
The decision also does not determine whether the individual DNA findings, viewed separately or together, could have resulted from an innocent source in other circumstances. The court's conclusion was based on the evidence in this trial, including the lack of a link between the appellant's shop and the particular items recovered at the tavern [78]-[81].
Finally, the judgment offers limited guidance on the independent weight of the non-DNA circumstances. It describes the tattoo evidence as having little or no probative value and the alleged familiarity with the tavern as not compelling; it also discusses the employees' failure to recognise the offender's voice [55]-[64]. The ultimate conclusion, however, rests on the assessment of all the circumstances together, not on a rule that any particular one of these circumstances must be present or decisive [81].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on or using this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Hasrouny [2020] QCA 163
PARTIES: v / (appellant)
FILE NO/S: CA No 306 of 2019 DC No 313 of 2017
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Southport – Date of Conviction: 17 October 2019 (McGinness DCJ)
DELIVERED ON: 11 August 2020
DELIVERED AT: Brisbane
HEARING DATE: 14 May 2020
JUDGE: Holmes CJ and Morrison JA and Wilson J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where a jury found the appellant guilty of one count of entering a premises with intent to commit an indictable offence, one count of armed robbery with personal violence and two counts of deprivation of liberty – where the case against the appellant was circumstantial – where the prosecution case relied entirely on DNA evidence – where the appellant’s DNA was found on items left at the scene of the robbery – where the appellant submits that his DNA was transferred to these items through the course of the conduct of his gardening business – where the appellant submits that the prosecution could not exclude a hypothesis consistent with innocence beyond reasonable doubt – whether an alternative hypothesis consistent with innocence arose fairly upon the evidence / Coughlan v The Queen (2020) 94 ALJR 455; [2020] HCA 15, cited Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28, distinguished R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
COUNSEL: M J Copley QC for the appellant D Balic for the respondent
SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
HOLMES CJ: I agree with the reasons of Wilson J and with the order her Honour proposes.
MORRISON JA: I have read the reasons of Wilson J and agree with those reasons and the order her Honour proposes.
WILSON J: On 17 October 2019 at the Southport District Court, a jury found the appellant guilty of:(a)one count of entering premises with intent to commit an indictable offence;(b)one count of armed robbery with personal violence; and(c)two counts of deprivation of liberty.
These offences arose from an armed robbery of the Currumbin Creek Tavern.
For the most serious offences of entering premises with intent and armed robbery with personal violence, the appellant was sentenced to five years imprisonment suspended after two years with an operational period of five years. Lesser concurrent sentences were imposed for the two deprivation of liberty offences.
The case against the appellant was circumstantial. To prove the identity of the offender, the prosecution’s case relied upon DNA evidence found on a number of objects left at the scene of the robbery. The prosecution had no case against the appellant without this DNA evidence.
The appellant appeals his conviction on the basis that the jury’s verdicts of guilty were unreasonable. The appellant submits that on the whole of the evidence, it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt, because the prosecution could not exclude a hypothesis consistent with innocence beyond reasonable doubt.
The appellant submits that the hypothesis consistent with his innocence is that his DNA had been transferred to some objects, subsequently used by the robber, during the course of the conduct of his gardening business.
Overview of the robbery
In the early hours of 25 October 2009, Ms King and Mr Edwards were working at the Currumbin Creek Tavern when the offender entered through an unlocked door. The offender was holding an object that looked like, but was not, a pistol, which was created using two pieces of piping placed in an L shape, secured together with grey or silver duct tape.
The offender’s face was covered with a cloth and neither Mr Edwards nor Ms King could see his face. Both Mr Edwards and Ms King described the offender as having a deep voice. Neither Mr Edwards nor Ms King recognised the offender.
The offender yelled at Mr Edwards to get onto the floor. The offender dragged Ms King by her hair to where Mr Edwards was lying. The offender secured Ms King’s wrists and ankles with what Ms King called “zip ties”. Mr Edwards stated that a “cable tie” was secured to one of his wrists. The terms “zip ties” and “cable ties” are synonymous. Mr Edwards stated that he had thought the offender was wearing gloves as he could feel the material when the offender secured the cable tie on him; he did not know whether the offender’s gloves were made from canvas or leather material.
The offender told Mr Edwards to get up from the floor and the offender pushed him towards a door to the upstairs area. Mr Edwards unlocked the door and the offender pushed Mr Edwards up the stairs towards an office area behind the kitchen. When asked to describe in more detail how he was directed from the downstairs bar up to the office area, Mr Edwards described being pushed to the downstairs door and then pushed up the stairs. However, at the top of the stairs, Mr Edwards described that “it sort of felt like he pushed me over there [to the office area], but I don’t know. I mean, it was 10 years ago. I could have been just saying or thinking to myself ‘Shit, I want this over. I need to get there straight away.’”
The door to the office required a PIN code, which Mr Edwards entered successfully after a couple of attempts. After the door opened, Mr Edwards said to the offender, “Look, the safe’s over there*.*” The offender told Mr Edwards to empty the safe. Mr Edwards put the money in the bag the offender had provided. When the bag broke, the offender had Mr Edwards put the money in an office bin. Mr Edwards was told to lie down and the offender bound Mr Edward’s ankles with tape and his wrists with a cable tie. The offender then put tape around Mr Edward’s head and, as he was doing so, he gave Mr Edwards a “good couple of whacks on the left-hand side of the face”.
Ms King called 000. When the police arrived they untied Ms King by cutting plastic cable ties and silver electrical or gaffer tape. Mr Edwards had managed to free himself from the upstairs office.
Police found a number of items left behind by the offender, including the fake pistol located in the downstairs area near the bar. Police also found cable ties and duct tape in the downstairs bar and the upstairs office areas. DNA profiles were successfully taken from each of these items.
DNA evidence
At the trial, the prosecution called Mr McNevin, a forensic scientist with the Queensland Health Forensic and Scientific Services, to give evidence. Mr McNevin explained that DNA is a chemical found in almost all cells in the human body. The vast majority of human DNA is the same between humans, but some differences between humans occur. The sections of DNA that differ are the sections examined by forensic science, because it is extremely rare for people, other than identical twins, to have the same DNA profile.
Scientists can compare a person’s DNA, provided as a reference sample, with DNA profiles recovered from objects in order to investigate whether the two profiles contain the same components of DNA. If the samples do contain the same components of DNA, scientists generate a statistical figure to determine how frequently or infrequently one would expect to see that DNA profile in the general population.
A mixed DNA profile occurs when a DNA sample contains more than one person’s DNA. In such circumstances there may be a major and minor profile. The major profile describes the profile of the person who has contributed more DNA to the sample, and the minor profile describes the person who has contributed less DNA.
A person can transfer DNA by touching an object or by sneezing or breathing near it. This is defined as primary or direct transfer. A person can also transfer DNA to an object by shaking hands with another person who then touches an object. This is defined as secondary transfer. If a third person touches this object and picks up DNA that has been transferred via secondary transfer, this is defined as tertiary transfer.
DNA testing cannot determine whether DNA came to be deposited onto an object via primary, secondary or tertiary transfer.
How much of a person’s DNA is transferred to an object depends on many factors, including the nature of the surface, how sweaty a person’s hands are and how recently a person has washed their hands. Longer contact with an object by a person may lead to the deposit of more DNA. DNA transferred to an object can degrade, however no evidence was given at the trial as to how long this process can take.
To obtain DNA profiles from the items found in the tavern, police used a DNA tape lift or a DNA swab. A DNA tape lift involves dabbing a piece of tape, similar to sticky tape, on the sample area. A DNA swab involves using a long stick, like a cotton bud, dampened with ethanol and rubbed over the sample area.
The police found incomplete DNA profiles that matched the appellant (to various degrees of probability) on five items:
A portion of glove attached to a piece of tape found when police deconstructed the fake pistol by winding back the tape;
The trigger guard of the fake pistol;
A portion of glove attached to duct tape found on a table in the downstairs bar area;
Cable ties found on the floor tiles of the upstairs office area; and
Cable ties found on the carpet of the upstairs office area.
A portion of glove attached to duct tape found when police deconstructed the fake pistol
The fake pistol was located on the customer side of the tavern’s downstairs bar area. A crime scene police officer, who had deconstructed the fake pistol by winding back the duct tape, discovered what appeared to be a piece of a glove on the adhesive side of the duct tape. This item was also described during the trial as a ‘possible piece of glove’.
The jury were provided photographs of the possible glove piece, however there was no direct evidence that this item was from an actual glove.
The swab taken from this possible glove piece yielded an incomplete DNA profile that matched the appellant’s DNA profile. There was a one in 130 billion probability that this incomplete DNA profile had come from someone other than the appellant.
A police officer who attended the tavern on the night of the offences noted that the tape used to make the fake pistol “appeared to be fashioned out of similar sort of tape as [...] what the victim [Ms King] was bound with.”
The trigger guard of the fake pistol
A crime scene police officer swabbed the outside and inside area of the trigger guard of the fake pistol. The trigger guard appeared to be made from black plastic.
Police obtained an incomplete DNA profile from this sample, which matched the corresponding DNA components in the reference profile obtained from the appellant. There was a one in 260 million probability that this incomplete DNA profile had come from someone other than, and unrelated to, the appellant.
A portion of glove attached to duct tape found in the downstairs bar area
Police located and swabbed a piece of possible glove on the adhesive side of the unwound duct tape. During the trial this item was also described as a ‘possible piece of glove’ or ‘what appeared to be a piece of glove’. There was no direct evidence that this item was from an actual glove. Police took a swab from this possible glove piece, which yielded an incomplete DNA profile that matched the appellant’s DNA profile.
There was a one in 1.1 billion probability that this DNA profile had come from someone other than, and unrelated to, the appellant.
Cable ties found on the floor tiles in the upstairs office area
Police took a DNA swab of cable ties found on the floor tiles in the tavern’s upstairs office. Scientists obtained a mixed DNA profile, which indicated the presence of DNA from two contributors. It was assumed that as Mr Edwards was bound with the cable ties that he had contributed to this DNA profile.
There was a one in 1100 probability that the remaining partial of DNA had come from someone other than, and unrelated to, the appellant.
Cable ties found on the carpet in the upstairs office area
Police took a DNA swab of cable ties found on the carpet in the upstairs office area. Scientists obtained an incomplete DNA profile from this sample, which matched the corresponding DNA components in the reference profile police had obtained from the appellant.
There was a one in 30 billion probability of this incomplete DNA profile coming from someone other than, and unrelated to, the appellant.
The appellant’s hydroponic shop
The appellant’s counsel at trial invited the jury to accept that in cases where the results presented probabilities in the millions or billions, then they would probably accept that the DNA profile found was the appellant's.
The hypothesis consistent with innocence proposed by the appellant was that his DNA had been transferred to some objects, subsequently used by the offender, during the course of the appellant’s conduct of his gardening business.
The appellant owned three hydroponic supply outlets, including one at Burleigh Heads which started in 2009 and traded as ‘Hydro Demon’. The appellant stated that after he moved to the Gold Coast he predominantly worked in the Burleigh Heads shop. No evidence was given as to when the appellant moved to Burleigh Heads. However, the appellant gave evidence that he started the Burleigh Heads business in “Nine ‘09”. It is unclear whether this statement refers to September 2009, or the year 2009 more generally.
The appellant stated that the Burleigh Heads shop sold horticultural supplies including plant foods, chemicals, diameters of irrigation and PVC piping, fertilisers, gloves, cable ties and duct tape. The prosecution did not challenge this evidence.
Gloves
“There was a rubber type for the heavy chemical. There was another type for the horticultural touching of the – the hard stuff, and there was a latex type for the lighter chemicals, like – like the fertilisers and stuff.”
Cable ties and duct tape
“Did the store sell cable ties?---Yes.
And what were they used for?--- Tying plants up to the stakes or tying anything, really.”
Neither the appellant’s counsel nor the prosecution showed the appellant the photographs of the cable ties the police had found in the tavern to identify whether they were the same type of cable ties that he sold in his shop. There was no evidence whether the appellant sold cable ties in packets or individually.
The appellant also stated that his shop sold a plastic type of duct tape.
The appellant handled most of the shop’s products
The appellant had one employee who was a quadriplegic and could not use his hands properly. As a result, the appellant handled most things that needed to be handled or individually counted in the shop. Only the appellant or his employee, when the appellant was not at the shop, worked at the counter.
The appellant stated that his wife would occasionally visit and work in the shop. The appellant’s children would help him stock the shelves and the appellant’s friends also sometimes helped him. However, the appellant stated that 90 per cent of the time he was the person who handled the shop’s stock.
The appellant stated that his shop also sold different diameters of irrigation piping.
Tattoos and CCTV footage
The prosecution tendered CCTV footage of the tavern during the robbery, which included stills prepared from that footage. One still photograph may have shown some black markings on the back of one of the offender’s hands. This was a blurry image at best.
During cross-examination of the appellant, the prosecution noticed that the appellant had some tattoos on the back of his hands.
The prosecution then asked the jury to consider one still from the CCTV footage and consider whether the markings seen on the offender’s hands ‘could be’ tattoos. This was relevant as the appellant had also had tattoos on the back of his hands in 2009.
In summing up, the trial judge said that it was a matter of “what weight you give to that.”
The link between the tattoos on the back of the appellant’s hand to a blurry image of undefined black markings on the back of one of the offender’s hands is tenuous; this evidence was of little, or no, probative value.
Offender’s familiarity with the tavern
At trial, the prosecution submitted that the appellant had attended the tavern regularly. Therefore, it was open for the jury to conclude that the appellant would understand and know the layout of the tavern. The prosecution submitted that the offender appeared to know the layout of the tavern. The offender also appeared to already know where the safe was located, and to know that Mr Edwards would have a key to the upstairs area of the tavern, the pin code to the office door and access to the safe.
When the prosecution asked Mr Edwards to describe in more detail how the offender directed him from the downstairs bar up to the office area, Mr Edwards described the offender pushing him to the downstairs door and pushing him up the stairs. Mr Edwards stated that at the top of the stairs, “it sort of felt like he pushed me over there [to the office], but I don’t know. I mean, it was 10 years ago. I could have just been saying or thinking to myself ‘Shit, I want this over. I need to get there straight away.’
However, this is not overly compelling evidence linking the appellant with the offender, as the offender’s alleged familiarity with tavern procedures and staff responsibilities could be explained by the fact that:(a)Any person intending to rob an establishment at closing time could simply assume that those employees would be familiar with where money was kept and the means of accessing it;(b)The offender had a 50 per cent chance of correctly selecting the employee more likely to be able to assist him, and this could easily have been based on that employee’s gender rather than prior knowledge of that employee’s role;(c)Mr Edwards told the offender the safe was in the office, and Mr Edwards conceded he may have led the offender to that locked door without being pushed towards it; and(d)Regardless, prior knowledge could have been gained by anyone who attended the tavern often.
The offender’s deep voice
The appellant places weight on the fact that Ms King knew the appellant and his distinctive voice, but that she had stated that she didn’t recognise the offender or his voice.
Mr Edwards and Ms King described the offender as having a deep voice.
Both Mr Edwards and Ms King knew the appellant as a patron of the tavern. Ms King also knew the appellant because their children were friends. Ms King stated she was familiar with the appellant’s voice, gait, build and mannerisms. Occasionally, she states, the appellant spoke with a distinctively high pitched voice. Ms King stated that she would be able to recognise the appellant’s voice because it was fairly unique, and that she would be able to pick it out of a crowd.
During the course of the armed robbery, Ms King heard the offender’s voice when he was yelling and talking to Mr Edwards. It is clear that despite knowing the appellant and being able to pick the appellant’s distinctive high pitched voice out of a crowd, Ms King didn’t recognise the offender or his voice.
The appellant gave evidence that he had previously had a higher pitched voice in 2009, and that a couple of years before the trial his voice box had been damaged. This injury had made his voice gravelly and lower in pitch.
However, the opportunity for Ms King to recognise the offender’s voice was during the frightening experience of an unexpected and violent armed robbery. Ms King could not recall what the offender was saying. When the police arrived at the tavern following the robbery, Ms King was described as being upset almost to the point of hysterical.
Discussion
This was a circumstantial case that relied upon DNA evidence to prove that the appellant was the offender.
An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case requires the appellate court to weigh up all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt had been proven beyond a reasonable doubt.1 That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.
In R v Baden-Clay (2016) 258 CLR 308, it was held that:
“[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.”2
“[...] the defendant’s DNA was not directly transferred by some innocent means to the objects, for example, did another person who was the offender obtain the tape, ties and gloves from the defendant’s gardening business?”
The appellant makes no complaint about the trial judge’s directions to the jury. The appellant states that the jury were correctly directed that before reliance could be placed on the presence of DNA profiles matching the appellant’s, the jury had to be satisfied beyond reasonable doubt that such presence was not the result of the appellant innocently touching the objects whilst selling them in his business. The appellant submits that it was not possible to conclude that this was so beyond a reasonable doubt.
The appellant submits that the presence of his DNA profile found on the items used by the offender can be explained by:(a)The appellant’s unchallenged and un-contradicted evidence that he handled and sold cable ties, gloves and duct tape; and(b)Evidence from a forensic scientist that DNA can be deposited on objects in a number of ways, including by primary or secondary transfer.
Accordingly, the appellant submits that such evidence raises a reasonable hypothesis consistent with his innocence.
The appellant’s counsel stated that the trigger guard could be a component of something to do with irrigation, or that the appellant’s DNA could be on this item due to a secondary transfer:
“MR COPLEY: Well, if his DNA was on cable ties or it was on PVC piping and if you look at the picture of the weapon you can see that the diameter of the barrel gets narrower as it gets further from the stock, if his DNA was on that fairly, it’s possible, on the evidence, that his DNA was transferred by the manufacturer of the pretending gun on to what we call the trigger guard. That’s just a possibility that remains open on the evidence. So that perhaps should have been the answer I should have given a little earlier.”
In Fitzgerald v The Queen,3 a group of men forced their way into a house and attacked two of the occupants. One of the occupants died four days later and the other sustained serious brain injuries. Police found the appellant’s DNA on a didgeridoo at the crime scene. The prosecution relied on this evidence to establish that the appellant was present in the offending group.
An important issue in Fitzgerald v The Queen, as in this case, was not whether there was a match between the defendant’s DNA and a DNA sample, but rather when and how the appellant’s DNA was transferred to the didgeridoo. In Fitzgerald v The Queen, the prosecution did not contest that there were at least two distinct occasions on which a secondary transfer of the defendant’s DNA to the digeridoo may have occurred. The High Court, in allowing the appeal and quashing the conviction, stated:
“[36] […] Alternative hypotheses consistent with the appellant’s innocence, in particular the hypothesis that Sumner transferred the appellant’s DNA to the didgeridoo on Sumner’s first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them.”4
In Fitzgerald v The Queen, the High Court found that it was reasonably open on the evidence to link the defendant’s DNA transfer to at least two distinct occasions in which a secondary transfer of the defendant’s DNA onto the digeridoo may have occurred. There is no such particularity in this case.
In my view, the possibility raised by the appellant of how the appellant’s DNA profile was found on objects used by the offender is not reasonable; it is based on conjecture and speculation.
An alternative hypothesis to explain a circumstantial case must arise fairly upon the evidence. The appellant’s hypothesis is that his DNA was transferred to some objects, subsequently used by the offender, during the course of his gardening business. Further, the appellant submits that he may not have had direct contact with these items, and a secondary transfer of the appellant’s DNA may have occurred when an item used by the offender touched an item previously handled by the appellant in his shop. The appellant’s hypothesis is premised upon the offender obtaining the duct tape, ties or gloves from the appellant’s gardening business.
The unchallenged evidence was that the appellant sold cable ties, gloves and duct tape. However, this evidence was only of a very general nature as to the products that the appellant sold and handled at his shop. The appellant was not shown any photographs to identify whether the possible glove pieces, the cable ties or the duct tape found in the tavern were the same as, or even similar to, products that he had contact with at his shop. It was left for the jury to speculate that they were the same.
Further, there was no evidence that the items described as possible glove pieces were from an actual glove. The appellant, in his written outline, fairly describes these items as “from what may have been a portion of glove”. Photographs of these items were tendered and before the jury. There was no direct evidence that the items photographed were from an actual glove, let alone a glove which the appellant sold. In the circumstances of this case, there was no evidence or reasonable inference open to found such a link; to do so would involve conjecture and speculation.
The issue of secondary transfer would be open if the applicant sold any one of the items found at the tavern. In my view, the appellant’s hypothesis that the tape, cable ties or gloves used by the offender were from the appellant’s gardening business is based upon speculation. The appellant’s hypothesis, that the appellant had transferred his DNA (whether by primary or secondary transfer) to some objects used by the offender during the course of the appellant’s business does not fairly arise upon the evidence.
In my view, when all of the circumstances established by the evidence are considered and weighed, and not in a piecemeal fashion, there is no inference consistent with innocence that was reasonably open on the evidence. The inference of guilt is the only reasonable inference open upon a consideration of all the facts and evidence. Accordingly, the appeal should be dismissed.
Orders
R
Hasrouny [2020] QCA 163
(2020) 94 ALJR 455
(2014) 88 ALJR 779
(2016) 258 CLR 308
The appeal against conviction was dismissed: [82].
No one was charged with these offences until police obtained a DNA reference sample of the appellant in June 2016 and he was subsequently charged.
The prosecution case relied substantially upon DNA evidence supplemented by:(a)The offender’s alleged familiarity with the location of the tavern’s safe;(b)The offender’s knowledge of which of the two employees would have the means of accessing the safe; and(c)An alleged correspondence of tattoos between the offender and the appellant.
The appellant gave evidence at trial and denied he was the offender. The appellant’s evidence was that since 2001 or 2002, he would go to the tavern at least three times a week. He also stated that he owned three hydroponic shops in 2009, two in Sydney and one in Burleigh Heads, which sold a number of horticultural supplies including gloves, duct tape and cable ties. The appellant stated that in 2009 his voice had been higher in pitch compared to his voice at the time of the trial, due to an injury he had sustained prior to the trial.