Seifeddine v R

Court of Criminal Appeal (NSW)|2021-04-09|Before: McCallum JA, Garling J, Cavanagh J

Judgment

THE COURT: Mounir Seifeddine and Tim Abraham were arraigned on a joint indictment containing nine counts of firearms and prohibited weapons offences based on their alleged possession of three firearms and other items. After a trial by jury in the District Court, both men were found guilty on all counts. Mr Seifeddine was sentenced to an aggregate sentence of 5 years and 6 months commencing on 10 December 2019 with a non-parole period of 3 years and 5 months expiring on 9 May 2023.
Mr Seifeddine sought leave to appeal to this Court against his conviction. The single ground of appeal was that "the verdicts are unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)". The appeal was based on a narrow point. The firearms were found in a storage area in a café during the execution of a search warrant. The café was owned by the co-offender, Mr Abraham. Mr Seifeddine was a part-time employee at the café, working 5 or 6 days a week but only for a couple of hours each day.
The critical evidence against Mr Seifeddine was the presence of DNA matching his on the trigger area of one of the firearms, a Smith & Wesson revolver. Mr Seifeddine contends that the DNA evidence was compromised by the handling of the revolver by police during the execution of the search warrant, giving rise to the reasonable possibility that his DNA was inadvertently transferred onto the revolver by police. It should be emphasised that there is no suggestion of any foul play on the part of police. The whole of the execution of the search warrant was filmed. Mr Seifeddine's point is that the DNA testing was conducted only after police had handled the firearms, as they necessarily had to in order to render them safe. There was otherwise only a weak circumstantial case against Mr Seifeddine (the case against the co-accused was stronger).
On 9 April 2021, we allowed the appeal, ordered that Mr Seifeddine be released immediately and reserved our reasons. These are our reasons for making the orders made that day.

Circumstances in which the charges were brought

Mr Seifeddine was a part-time "kofta chef" at the café owned by Mr Abraham. The search warrant was executed on 9 August 2017 at a time when, according to his unchallenged evidence at the trial, Mr Seifeddine was not present at the premises. The top level of the premises included a storage area which appears to have been used for the legitimate purposes of the business. In one wall of the storage area there was a small door leading into the wall cavity which had space for additional storage. Police found the firearms in the wall cavity area, contained in a large white plastic bucket with a commercial label indicating that it had originally contained pickles. The bucket was found to contain three firearms, two detachable box magazines and eight rounds of ammunition. Those items were concealed in pieces of cloth, a yellow towel and a black sock.
A crime scene officer was called to the premises. He collected swabs and tape lifts from a number of items seized by police. Analysis of those samples by a forensic biologist, Ms Bate, identified DNA matching Mr Seifeddine's in a number of places including on the trigger area of the Smith & Wesson. The DNA evidence is considered in detail below. Apart from that evidence, police obtained CCTV footage from inside the premises which showed Mr Seifeddine accessing the area in the wall cavity the day before the execution of the search warrant. However, there was no direct image or other evidence of him handling the pickle bucket or any of its contents at that or any other time.
The three firearms (a Fabrique-Nationale self-loading pistol, a Beretta pistol and the Smith & Wesson revolver) were all unregistered and one had its serial number obliterated. Neither accused was licenced to hold them. Those circumstances gave rise to seven charges against each accused: three counts of possession of a firearm without a licence contrary to s 7(1) of the Firearms Act 1996 (NSW), three charges of possession of an unregistered firearm contrary to s 36(1) of the Act and one charge of possessing a defaced firearm contrary to s 66(1)(b) of the Act. There were two further charges of possession of a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) relating to the two detachable box magazines.

Issues and evidence in the trial

At the trial in the District Court, the facts as to formal matters such as the status of the firearms and prohibited weapons found by police and the fact that neither accused was authorised to possess them were agreed. The sole issue at trial was whether Mr Seifeddine was in possession of the items particularised in the indictment, either on his own account or jointly with Mr Abraham. In order to prove that element, the Crown had to prove beyond reasonable doubt that, as at 9 August 2017, Mr Seifeddine knowingly had those items in the café premises. The trial judge directed the jury (with respect, correctly) that that required proof that Mr Seifeddine knew of the existence of the items and intended to exercise custody or control over them by keeping them in a place to which he and any other person acting jointly with him had access and might go without physical bar to obtain custody of the item to the exclusion of anyone else.
The Crown case on that issue was circumstantial, resting on a combination of five matters: the fact that Mr Seifeddine worked at the café five or six days a week; that fact that he had access to the storage room; the evidence concerning his accessing the area in the wall cavity the day before the items were found there; the fact that he and Mr Abraham were the only people to have done so during the 8 days before the execution of the search warrant and the DNA evidence.
The Crown accepted that, considered individually, none of the pieces of circumstantial evidence upon which the Crown relied was capable of proving in itself that Mr Seifeddine possessed the pistols and prohibited weapons. The Crown case was wholly circumstantial and as such was to be considered having regard to all of the evidence and not in a piecemeal way. The jury was invited to infer that, considering all of the evidence in combination, the Crown had proved beyond reasonable doubt that Mr Seifeddine touched the bucket and the items in it. The drawing of that inference was fundamental to the Crown case. The Crown contended that, if the jury was satisfied beyond reasonable doubt that Mr Seifeddine actually touched the bucket and some of the items inside it, they could infer that he knew the bucket existed and that he exercised control over the firearms and other weapons by keeping them in the wall cavity area to the exclusion of others, except anyone acting jointly with him in possession of those items.
The two most important pieces of evidence to support the inference of guilt were the CCTV evidence that Mr Seifeddine accessed the wall cavity area on 8 August 2017 and the DNA evidence. It is necessary to explain that evidence in more detail.

Mr Seifeddine's access to the wall cavity area

There were CCTV cameras throughout the restaurant. At the time the search warrant was executed, the café owner, Mr Abraham, told police the system had been installed the previous day. However, other evidence indicated that it had been activated about a week earlier. At least 30 CCTV cameras had been installed. The one of most interest to police was the one above the door leading into the wall cavity where the pickle bucket containing the firearms was found. That camera was directed at the door leading into the cavity but did not show a view inside the cavity.
The CCTV footage showed that, during the week before the execution of the search warrant, six or seven people had been to the storage room for various purposes. However, only Mr Seifeddine and Mr Abraham had accessed the area in the wall cavity where the firearms were found.
Mr Abraham had accessed that area on 2 August 2017. Mr Seifeddine had accessed it on 8 August 2017, the day before the search warrant was executed. In the CCTV footage, he was seen walking into the storage room, putting a plastic bag, some paper and a pen down on a shelf and then going to the door into the wall cavity area carrying a white yoghurt bucket. He spent a minute or two at the entrance to the wall cavity area and then left with the yoghurt bucket. The detective who viewed the footage accepted that that was the only footage showing Mr Seifeddine accessing the wall cavity area.
As already explained, it could not be seen from the CCTV footage what Mr Seifeddine was doing in the wall cavity area. He gave evidence in the trial to the effect that he was looking for tools or material to fix a cooker. He said that the yoghurt bucket contained a screwdriver, sticky tape, "tools for electricity", screws or nails, and an "English key" which he described as a tool used by electricians. He said the plastic bag which he put down before he went to the wall cavity area contained lightbulbs for heat lamps for the cooked chickens. He gave evidence to the effect that it was his habit to carry the yoghurt bucket as he kept his tools in it and did not want any other staff members touching it and misplacing it. He said he stored that bucket of tools in the storeroom. He said he needed to go into the wall cavity to find an extension cord to test whether the chicken-warmer was working. He said there was a cord that was three to four metres long which was kept in a pickle bucket in the wall cavity area. He added that it was common for the business to store its tools inside pickle buckets at the premises. He did not find the extension cord.
Mr Seifeddine denied seeing any firearms in the buckets. He denied carrying firearms in the white yoghurt bucket, saying "I don't use these things". It was put to him that he touched the handle of the pickle bucket found by police either before 2 August or on 8 August 2017. He responded that he would not come into contact with only one bucket; that he opened most of the buckets. He denied touching a yellow towel located within a particular bucket that contained firearms. He denied seeing or touching a yellow towel.
It follows from the jury's verdict that they must have rejected Mr Seifeddine's innocent explanation for accessing the wall cavity area. In his submissions in this Court, counsel for Mr Seifeddine accordingly accepted that the innocent explanation should be put to one side for the purposes of the appeal. The question nonetheless remains whether the Crown case established the offences beyond reasonable doubt.
There was evidence that the wall cavity contained miscellaneous items other than the pickle bucket. The Crown accepted at trial and in this court that the CCTV footage does not prove that Mr Seifeddine came into contact with the pickle bucket or its contents on 8 August 2017, the only date on which it is proved he had access to the wall cavity. Mr Seifeddine accordingly submitted that the CCTV evidence was at best neutral.
Of course, it is trite that the evidence must be considered as a whole and not piecemeal. It is nonetheless significant that there is no direct evidence that Mr Seifeddine had the firearms in his possession or control on 8 August (when he accessed the wall cavity), or 9 August (when the search warrant was executed), or indeed at any stage.
The DNA evidence was accordingly critical.

DNA evidence

The forensic biologist, Ms Bate, gave detailed evidence explaining the findings of her analysis of the swabs taken by the crime scene officer and their statistical significance. It is not necessary to set out the scientific detail of that evidence. Although it is not strictly accurate, it is convenient for the purposes of explaining our determination of the appeal to proceed on the assumption that the evidence established that the DNA as to which Mr Seifeddine could "not be excluded" as a contributor was in fact his DNA. On that assumption, there were five items in respect of which the DNA evidence implicated Mr Seifeddine: 1. the handle of the pickle bucket; 2. the rim of the bucket lid; 3. the trigger area of the Smith & Wesson revolver; 4. the black sock in which the Smith & Wesson was wrapped; 5. a yellow towel that was also in the bucket.
As already explained, the lynchpin of the Crown case was the inference the Crown invited the jury to draw that Mr Seifeddine actually touched those items. The trial judge directed the jury that if, having considered the whole of the evidence and the submissions made, they considered there was a reasonable possibility not excluded by the Crown that the DNA results were obtained through indirect or secondary transfer, then they "simply could not conclude from the whole of the evidence that the accused touched an item or items." Her Honour went on to say, "In other words, the Crown must exclude as a reasonable possibility that the DNA came there by some indirect or secondary transfer, such as by coming into contact with another source of the accused's DNA."
On Mr Seifeddine's evidence (summarised above), as to the handle of the pickle bucket and the rim of the bucket lid, the possibility of direct contact was in effect admitted but explained. There was evidence in the form of invoices showing that 125 buckets of pickles had been purchased by the business over an 8-month period in 2017. As counsel for Mr Seifeddine submitted to the jury, that was a lot of pickle buckets. Mr Seifeddine gave evidence to the effect that pickle buckets were stored in the storeroom and that he accessed them in the ordinary course of his work to use the pickles. He said that the lids were very difficult to remove. That would tend to increase the likelihood that a person's DNA would be transferred onto the rim of the lid. Indeed, removing a lid to open a bucket would seem to be the most likely circumstance in which DNA would be transferred directly onto the rim of the lid. The point is that the applicant may well have had an innocent reason to do that. The same can be said of the bucket handle. Mr Seifeddine submitted, and we accept, that it would not be unusual for a person in his position to have touched those items directly at some point before the bucket came to contain the three firearms.
The black sock and the yellow towel are also items of a kind that might have been handled by Mr Seifeddine at some point for an innocent purpose. It must be accepted that the combination and coincidence of places in and on the bucket carrying his DNA was significant. However, without establishing that he had seen and touched the Smith & Wesson, the Crown could not prove the charges beyond reasonable doubt.
Accordingly, and for obvious reasons, the principal focus of the submissions in the appeal was whether the Crown had excluded as a reasonable possibility that the DNA on the trigger area of the Smith & Wesson came there by indirect or secondary transfer.

Evidence as to the possibility of secondary transfer of DNA

In order to understand the possibility of secondary transfer, it is necessary to consider the evidence concerning the search of the area in which the firearms and other items were found. As already noted, the search was filmed and the footage was in evidence (exhibit B). It shows that police wore gloves throughout the search and at times replaced them with fresh gloves.
The principal witness concerning the search, Sergeant Landrigan, explained that the reason for changing gloves was to obviate the risk of cross-contamination. He said that he had changed his gloves before going into the storeroom. He can be heard at that point in the video saying that he had put fresh gloves on. However, it is clear that, after doing so, he touched a number of areas or items that Mr Seifeddine might also have touched in the ordinary course of his work at the café.
In cross-examination, Sergeant Landrigan agreed that he might have touched the corner of the bench near where another detective was standing. He agreed that it followed that the possibility of contamination was alive. He also agreed that he touched the handle of the door into the wall cavity area with his left hand and that whoever had touched that handle before him may have left some of their DNA on it.
Sergeant Landrigan agreed that he had then touched and opened the pickle bucket lid. At that point, he said "find" (to indicate the location of items of significance to others present). He then touched the camera. He agreed he then took the bucket by its rim and removed it from the cavity by holding the handle. He agreed that he also touched a cardboard box and his personal phone with the same gloves.
Sergeant Landrigan agreed that, still wearing the same gloves, he had "delved" into the bucket with both hands. He agreed that he was counting how many firearms were in the pickle bucket, using his hands to do that. He agreed that he had possibly touched every item in the bucket at that time including the towel, the sock and the "white thing" (possibly another towel). He remembered touching the two detachable box magazines as well at that time.
Sergeant Landrigan agreed that he then took hold of the back of a chair and dragged it over to the pickle bucket. He agreed that the pickle bucket was sitting on the chair when he removed the two magazines, still wearing the same gloves. He agreed that, in doing so, he had touched other items including the towel. Only then did he put on fresh gloves.
Exhibit B shows that Sergeant Landrigan then picked up the black sock containing the Smith & Wesson revolver and removed it from the bucket. He agreed that he had some difficulty getting the revolver out of the black sock. He was careful during that time to keep his hands off the trigger. He used the grip of the firearm handle to pull the sock around his hand without dropping the firearm. He said that he kept his hand away from the trigger guard and emphasised that he did not go near any triggers of any firearm so as to avoid any accidental discharge.
Sergeant Landrigan accepted that, without changing his gloves, he then placed the black sock onto an exhibit bag and then picked up the revolver in order to unload it. There is no doubt that he touched the revolver with the same gloves that he had used to hold the sock when removing the revolver from the sock.
The forensic biologist, Ms Bate, was cross-examined extensively as to whether, in the circumstances described above, Mr Seifeddine's DNA could inadvertently have been transferred from surfaces in the storage room and the pickle bucket onto the contents of the pickle bucket, including the weapons.
Ms Bate agreed that if someone unlocked a door with their naked hand, it was possible for DNA to be left on the lock, though it was not certain that the amount would be detectable. She said the more time a person spends in a particular location, the greater the likelihood that their DNA will be present there. She also said that the greater the length of contact between a person and an object, the greater the likelihood of depositing DNA. Friction or movement was also more likely to leave more DNA. She agreed that a hand turning a lock was more likely to leave DNA than static contact.
In relation to a police officer touching a doorknob, Ms Bate said that would involve pressure because of the grasp required around the handle. However, the extent of friction would depend on how the officer turned the latch and whether they moved their fingers along the latch.
In relation to the footage of officers undertaking the search (exhibit B), Ms Bate explained that when the officer had touched the lock with a latex glove, DNA of the person who touched the lock beforehand could transfer onto the latex glove. She explained that, in order for secondary transfer to occur by that mechanism, a large amount of the person's DNA would have to be left on the handle as the door latch was the first point of transfer, the glove the second point and then from the glove onto another object would be a third step, and DNA would be lost at each of those steps. However, she accepted that it was possible for DNA to transfer across all three of those steps if a sufficient amount of DNA was left in the first instance.
Ms Bate was unable to say how many transfer steps could take place before DNA would no longer be able to be detected. She explained that there were too many variables including how much DNA was initially deposited and the type of surface involved at each stage. She explained that some people are "good shedders" of DNA and others are "poor shedders".
Footage of the search (exhibit B) was played to Ms Bate. She agreed that it was possible Sergeant Landrigan had collected the DNA on his latex gloves after touching the latch of the door and benches in the storage room. She also agreed that, if there was DNA on his gloves, it could possibly have transferred onto the handle of the pickle bucket when he retrieved it from the wall cavity area. She said: "If there's DNA on his gloves, it is possible that anything he touches he could be transferring DNA onto that surface. However, just to qualify that…depending on how many times he touches different surfaces, whatever DNA starts on his gloves will then be taken from his gloves onto each of those surfaces, as well as him picking up new DNA from each of those surfaces."
Ms Bate accepted that there was a possibility of secondary transfer of Mr Seifeddine's DNA from the door handle to the sock, the cloths and the firearms from Sergeant Landrigan's unchanged glove.
Towards the end of Ms Bate's evidence, the jury asked the following question: "If a table, say, has some DNA on it, what proportion of the DNA will transfer in a touch of a latex glove? A range of values would be useful to use. Are we talking 1 to 5% or 10 to 20% or more?"
In response to that question, Ms Bate was permitted overnight to produce some "academic literature". She found a number of studies, one of which had analysed transfer rates between plastic and cotton. The results were explained by reference to the fact that plastic is non-porous and cotton is porous. The Crown was allowed to educe evidence from Ms Bate purportedly answering the jury's question by reference to that study and the fact that a table would be classified as porous whereas a latex glove would be classified as non-porous. Neither accused's counsel objected to that course, perhaps because the jury has asked the question. It is unfortunate that wholly new expert evidence based on a study of different materials was introduced in that way.
As already explained, Exhibit B showed that Sergeant Landrigan removed the revolver from the sock and that, owing to the risk of accidental discharge, that process had to be undertaken carefully and took some time. Ms Bate gave evidence that, when Sergeant Landrigan was removing the revolver, it was likely that the sock rubbed on the surface of the revolver. Based on the study produced in response to the jury's question, she agreed that the DNA from the sock could have transferred onto the revolver at a rate of up to 76%. She agreed that the non-porous glove was put into the sock and the porous sock was a very good receiver of DNA. Ms Bate had earlier agreed that generally a sock that is worn for the day will have a significant amount of DNA on it due to extended exposure on the skin, body sweat and extended skin friction.
Exhibit B showed that one of the detectives touched the middle of the sock containing the revolver and with that same hand then touched the revolver. Ms Bate agreed that, if there was DNA on the sock where the officer touched it, it could have transferred onto his gloves and then onto whatever part of the revolver he touched. However, she also agreed that she had not received any samples from the middle of the sock for testing.
Ms Bate gave evidence that the sock over the revolver could exert some pressure, and that, if it rubbed against other items in the bucket, that would exert pressure and friction of the inside fabric of the sock onto the metal of the revolver. Ms Bate accepted that, in those circumstances and depending on the conditions at the time, there was potential for up to three quarters of the DNA material to transfer from the sock surface to the surface of the revolver. Ms Bate also accepted that the DNA on the revolver could be explained on the basis that a third unknown individual could have handled the sock when it had the accused's DNA on it and then placed the revolver into the sock.

Applicant's principal contention

On the strength of the evidence summarised above, Mr Seifeddine submitted that the actions of Sergeant Landrigan had inadvertently given rise to a very real possibility of secondary transfer explaining the presence of Mr Seifeddine's DNA on the trigger area of the revolver.
In particular, Mr Seifeddine submitted that the evidence gave rise to a reasonable possibility that his DNA was transferred onto the sock when Sergeant Landrigan first inspected the items. Alternatively, his DNA may have been on the pickle bucket by innocent means or simply on the yellow towel, which was found in the bucket and was therefore necessarily in close proximity to the black sock. Alternatively, it was submitted that, for some unknown reason, Mr Seifeddine's DNA may have already been on the black sock. Given the significant manipulation which was required to remove the revolver (as could be seen in Exhibit B) it is reasonably possible that any DNA was transferred to the revolver in that process.
As explained above, the case went to the jury on the basis that the Crown had to eliminate the reasonable possibility that the applicant's DNA was on the firearm as a result of secondary transfer: cf Fitzgerald v The Queen (2014) 311 ALR 158; [2014] HCA 28; and Adams v R [2018] NSWCCA 303 at [128] per Campbell J.
That reasonable possibility was not excluded. As the foregoing discussion reveals, while the combination of circumstances in the evidence against Mr Seifeddine was such as to give rise to a suspicion that he may well have held the Smith & Wesson at some point, the reasonable possibility of secondary transfer of his DNA onto that firearm was not only not excluded but indeed found some support in the evidence in the Crown case.
That conclusion was enough for the appeal to succeed. In the circumstances, it is not necessary to address the alternative arguments put by Mr Seifeddine.

Conclusion

For those reasons we made the following orders: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The convictions be quashed. 4. Direct that the appellant be released immediately. 5. Reasons are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2021

Firearms Act 1996(NSW)ss 7(1), 36(1), 66(1)(b)

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