Sloan v R

Court of Criminal Appeal (NSW)|2015-08-20|Before: Bathurst CJ, Price J, Beech-Jones J, Jones J

Judgment

BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his Honour's reasons.
PRICE J: Having made my own independent assessment of the evidence, I agree with the reasons and orders proposed by Beech-Jones J.
BEECH-JONES J: On 25 June 2012 the Rosemeadow Totalisator Agency Board ("TAB") outlet was the subject of an armed robbery by two offenders who escaped in a stolen motor vehicle.
On 10 March 2014 the appellant, Ashley Sloan, and his co-accused, Leroy Thorne, were arraigned before a jury panel in the District Court on two charges arising out of that armed robbery, namely one count of robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 and one count of allowing themselves to be carried in a car they knew had been taken without the consent of the owner contrary to s 154A(1) of the Crimes Act 1900. Mr Thorne was also arraigned on a count of threatening to use an offensive weapon with intention to prevent his and Mr Sloan's lawful apprehension contrary to s 33B(1) of the Crimes Act.

The Robbery

Surveillance video of the robbery on 25 June 2012 taken from three different angles was tendered at the trial and made available to this Court. The robbery occupied approximately one minute. One of the offenders entered the TAB carrying a sawn-off shot gun. He pointed it at a customer and then at the teller while the other offender entered an enclosed area and collected cash. It was the Crown case that the offender holding the gun was Mr Sloan. This offender was wearing white gloves, what appeared to be a black hooded jumper with red edges and a small backpack. The hood of the black jumper was placed over the offender's head. This offender also appears to have some form of mask over his face. One of the customers testified that this offender's face was covered by a mask or balaclava. In none of the footage is this offender's face or his facial features visible notwithstanding that there are a number of clear shots of his facial area.
The surveillance video showed the other offender was wearing a dark blue and white hooded jumper which was also placed over his head as well as gloves. He also appears to have some form of mask over his face.
Both the teller and a customer of the TAB identified the two offenders as male and stated that they were talking and yelling throughout the robbery. They observed the offenders leave the scene in a red Commodore. They recorded the registration number of the vehicle. Shortly afterwards another witness saw a red Commodore stop in Julius Road, Rosemeadow. The driver alighted. This witness stated that he was wearing a hooded jumper, carrying a sawn-off shot gun and his head was covered by a stocking. He described the hooded jumper as "all red". This witness said that the other passenger in the vehicle was also wearing a hooded top and had his face covered with a stocking. The witness observed them run towards Willoughby Way. The offender carrying a shotgun tripped, dropped the gun and two red cartridges fell from the gun. The witness saw them run through a vacant block and jump a fence into Exton Street, Rosemeadow.
Another witness saw the red Commodore stop and the two offenders alight. She said that one of them pointed a gun at her. She said that he was wearing, inter alia, a black hooded jumper and a "balaclava" which she described as "black" with a hole for an eye. She said that she saw one of the two offenders "jump into the back of a ute" but otherwise her evidence and the balance of the evidence is unclear as to how they absconded from the scene.
Around this time various residents of the area started finding items in their gardens that were used in the robbery. One woman discovered the sawn-off shotgun. She called the police. The police attended and started searching the area. The red Commodore was found abandoned in Julius Road, Rosemeadow approximately 500 metres from the TAB. At a residence in Langley Way, Rosemeadow, that was approximately 350 metres from the red Commodore, the police discovered two white socks, a pair of black pants, two green and yellow gloves and a pair of Nike brand shoes. At a residence in Willoughby Way, Rosemeadow, that was approximately 150 metres from the red Commodore, the police seized the shotgun and a wallet containing items belonging to the teller at the TAB. The police also located a cartridge on the road near this residence.
Later a crime scene officer visited a house in Tamora Way, Rosemeadow that adjoins the house in Willoughby Way referred to in [14]. The officer inspected a blue, grey and black Nike brand backpack found near the rear porch, a blue "Lonsdale" hooded jumper with horizontal white stripes on the arms, a pair of sunglasses, a silver wrench, two $10 notes, a white glove with black dots on the palm, a 12 gauge shotgun cartridge, a black hooded jumper, a red hooded jumper and a black stocking that were found in various places in the garden. The black stocking was slightly rolled at the edges. The black and red hooded jumpers were inside out and rolled within one another. They appeared to have been worn on top of each other.
A consideration of the eye witness testimony, the surveillance video and the items that were seized overwhelmingly supports the inference that these items were worn or used by the offenders and then discarded. In particular it can be concluded that the offender who wielded the shotgun wore white gloves, a black hooded jumper over a red jumper and a stocking over his face.

Forensic Examination

No fingerprints were obtained from the sawn-off shotgun or the cartridges. However, those items and a number of the other items were the subject of DNA testing. Two different types of retrieval processes were used to obtain DNA, namely tape lifts on clothing-like materials to target and collect trace DNA, and swabs to collect trace DNA from non-porous surfaces, such as metal, glass and plastics.
The shotgun and cartridges were swabbed. A "collective swab" was taken from the zippers, key ring and carry strap of the Nike backpack. No tape lift was taken from the backpack. A witness explained that a "collective swab" involved a swipe with the same collector on a number of different surfaces of the same object. The use of collective swabs increases the chance of obtaining DNA from a person who has handled the object, but also increases the chance of obtaining DNA from multiple contributors.
A single tape lift was taken from the interior cuffs, interior pockets, and the top and bottom of the zipper tag of the blue and white Lonsdale zip up hooded jacket. Two separate tape lifts were taken from the wrist and interior of the left and right hand white knitted gloves. The pair of black sunglasses was examined for fingerprints but no suitable prints developed. The sunglasses were not tested for DNA. A metal wrench was examined for fingerprints but none suitable for comparison were obtained. The handle of the wrench was also swabbed for DNA.
A tape lift was taken from the interior cuffs, the inside of each pocket and the interior neckline of the black hooded jumper which was intertwined with the red hooded jumper. A separate tape lift was taken from the interior cuffs, the inside of each pocket and the neckline of the red hooded jumper.
A single tape lift was taken from the entire exterior surface and entire interior surface of the black stocking. The stocking was not stretched to obtain the tape lift. The stocking had two white marks on it. Two separate tape lifts were taken from the exterior wrist and interior of both the left and right hand of a pair of green and yellow gloves.
Six swabs were also taken from different parts of the red Commodore vehicle, a tape lift was taken from a glove located in the driver's foot-well, and a further tape lift from a tea towel located in the front near side of the driver's foot-well. A cigarette butt taken from the vehicle was also taken for DNA testing.

Results of Testing

Ms Ivana Sesardic, a senior forensic biologist employed by the Department of Analytical Laboratories, undertook the DNA analysis. Her report was tendered and she gave oral evidence. The relevant parts of her evidence were as follows.
Of the six swabs taken from the motor vehicle, three did not reveal any DNA. Of the remaining swabs, two swabs revealed a mixture of DNA that originated from at least two individuals, and the other revealed a mixture of DNA that originated from at least three individuals. However the profiles of the individual contributors for all three swabs could not be determined. Similarly the swab taken from the glove near the driver's foot-well of the motor vehicle revealed a mixture of DNA that originated from at least four individuals but the profiles of the individual contributors could not be determined. The swab taken from the tea towel located in the front near side of the driver's foot-well revealed a mixture of DNA that originated from at least two individuals but the profiles of the individual contributors could not be determined. The cigarette butt revealed a mixture of DNA that originated from two unknown males who were not Mr Sloan or Mr Thorne.
The DNA recovered from the back pack revealed a mixture of DNA that originated from at least two individuals, but the profiles of the individual contributors could not be determined. The DNA recovered from the right green and yellow glove revealed a mixture of DNA that originated from at least three individuals but the profiles of the individual contributors could not be determined. The DNA recovered from the left white glove and the left green and yellow glove revealed a mixture of DNA that originated from at least four individuals but the profiles of those individual contributors could not be determined. The swab taken from the wrench did not reveal any DNA.
The remaining swabbed items yielded evidence of greater significance.
The tape lift on the blue and white Lonsdale top revealed a mixture of DNA that originated from at least three individuals. The major component had the same profile as Mr Thorne, that being a profile expected to occur in fewer than 1 in 10 billion individuals in the general population. It was not possible to determine the profile of the minor components. Ms Sesardic explained the concept of major and minor components as follows: "Similarly to the previous results the DNA recovered is a mixture that originates from at least three individuals and again we can determine this due to the number of peaks or areas that are present at each separate area of DNA. The major - in this particular DNA profile we can determine that there is one type of DNA that is present in larger amounts than another type of DNA. This [is] clear from the graph as there are very large peaks compared to smaller peaks that are similar to looking at mountains versus hills and at each area we would expect it to be consistent that one profile is [present] in a larger amount than another profile. This is termed the major component of the DNA …" (emphasis added)
Ms Sesardic stated that the swab on the trigger, handguard and top lever of the sawn-off shot gun revealed a mixture of DNA that originated from at least four individuals, but the profiles of the individual contributors could not be determined. The swab on the external surface of the gun recovered DNA from at least two individuals. The major component had the same profile as the co-accused Mr Thorne, that being a profile expected to occur in fewer than 1 in 10 billion individuals in the general population.
Ms Sesardic explained that the tapelift on the right white glove revealed a mixture of DNA that originated from at least four individuals. The major contributor had the same profile as an unknown female identified as "C". It was not possible to determine the profile of the minor components.
Three particular items of significance to the case against Mr Sloan were the black hooded jumper, the red hooded jumper and the stocking. It was the Crown case that he wore all three during the robbery.
The DNA recovered from the red hooded jumper was found to be a mixture that originated from at least three individuals. The major component was said to be consistent with that which originated from individual C. It was not possible to determine the profile of the other contributors.
According to Ms Sesardic, the tape lift on the black hooded jumper revealed DNA that appeared to originate from two individuals. Ms Sesardic's written report stated as follows in relation to this item: "The DNA recovered is a mixture that appears to originate from two individuals. Ashley Sloan (…) and individual 'C' cannot be excluded as contributors to this mixture. It is approximately 24 million times more likely to obtain this mixed profile if it originates from Ashley Sloan and individual 'C', rather than from individual 'C' and an unknown, unrelated individual in the general population."
However, this explanation is not the same as a finding that either Mr Sloan or "C" were major or minor contributors to the mixture of DNA on the item. Instead Ms Sesardic explained that "… we compare two competing scenarios and determine the likelihood of one scenario over another". The two scenarios were firstly that both C and Mr Sloan were contributors and the second was that C and an unknown male were contributors. The result was that the former was 24 million times more likely than the latter if the unknown male was a member of the general population, and 11 million times more likely if the unknown male was Aboriginal. Ms Sesardic also stated that there was a "possible trace of a third individual" on this jumper. In her oral evidence, Ms Sesardic explained that she compared the likelihood of C, Mr Sloan and an unknown male being contributors with the likelihood of C and two unknown males being contributors. The former was 150,000 times more likely than the latter in the case of unknown individuals in the general population and 64,000 more times likely in the case of unknown individuals in the Aboriginal population.
The DNA recovered from the tape lift on the stocking was the most significant result. It was a mixture that originated from at least three individuals. The major component had the same profile as Mr Sloan, that being a profile expected to occur in fewer than 1 in 9.3 billion individuals in the general population and one in 3 billion individuals in the Aboriginal population (Mr Sloan is Aboriginal). Ms Sesardic stated that "C" could not be excluded as a contributor to the minor component.
Three matters of particular significance should be noted in relation to the DNA results from the stocking and the black hooded jumper.
First, Ms Sesardic addressed the potential source of the DNA on both items. She stated that a "large amount" of DNA was recovered from both the stocking and the black hooded jumper. She stated that amount was "likely to be from a rich source or a large amount of a low source of DNA". She explained that a "rich source of DNA is saliva, or blood, or semen". She agreed that if an area of clothing "touches the mouth chances are [that] there will be a rich source of DNA there". Ms Sesardic explained that a "poor source of DNA" are skin cells which are "largely dead cells". She stated that there would have to be "extended [skin] contact to be guaranteed of a good, full DNA profile". She stated that if a person is a "regular wearer of an item of clothing and [if] - for example the collar or the cuffs are in close contact with your skin you are highly likely to get a full profile in that scenario", but that ten minutes of contact might not leave any DNA.
Second, there was, however, a significant difference between the black hooded top and the stocking in terms of ascertaining who contributed the bulk of the DNA that was located. Mr Sloan was the major contributor of the DNA located on the stocking. The answers given by Ms Sesardic in relation to the blue Lonsdale top noted in [27] above are apposite to the stocking and Mr Sloan, namely his DNA was "present in larger amounts" than all other contributors. However in relation to the black hooded jumper neither Mr Sloan nor C were identified as necessarily being present and neither were identified as the major contributor. Ms Sesardic was asked about the results as follows: "Q. In the results that you have obtained if we look for instance [at the black hooded jumper] if it is the case that Ashleigh Sloan is one of the contributors in relation to [the jumper] you cannot say from the testing you did first of all how his DNA got on [the item]? A. No. I cannot but due to the large amount of DNA present it's - I would say it's more likely to be a direct contact at some stage but I do not know how long it would have been there. Q. When you say it is more likely to be a direct contact because of the amount of DNA in relation to [the black hooded jumper] - A. I would stress that that may not be a direct contact. That may be a direct contact for the DNA as a whole to be there - the mixture - I cannot give an opinion as to each particular contributor. There was a large amount of DNA recovered by the DNA ... - the amount of DNA recovered refers to the whole entire profile, not the different contributors that we are seeing in the DNA graph." (emphasis added)
The emphasised portions of this passage reflect the fact that the DNA testing of the black hooded jumper yielded a mixture in respect of which no major contributor could be identified and thus Ms Sesardic could not identify who contributed the larger portion of the DNA.
Third, Ms Sesardic was asked about the possibility of DNA being transferred onto the black hooded jumper. She stated that while there "may be a direct contact for the DNA as a whole to be there" she could not "give an opinion as to each particular contributor". On the assumption that Mr Sloan's DNA was on the black hooded jumper, she accepted that she could not give an "opinion as to … whether it [came] from a direct contact or indirect transfer in regards to Mr Sloan". She accepted that the results of the DNA testing were consistent with Mr Sloan's DNA being on the stocking and transferred to the black hooded jumper by, for example, being left in its pocket. However, in relation to the possibility of transfer from the black hooded jumper to the stocking, she stated: "No - the black stocking is a major contributor so I would feel it's more likely that any transfer has occurred from that item rather than to that item as it is a major contributor …"

The Addresses and the Summing Up

Neither Mr Sloan nor Mr Thorne gave evidence or called any witnesses.
Not surprisingly the focus of the addresses was the effect of and limitations upon the DNA evidence. All of the addresses proceeded on the basis that the items that were recovered were used in the robbery. Prior to the addresses commencing the trial judge inquired whether there was any issue about "transference of DNA". Counsel for Mr Sloan indicated that he would raise a reasonable alternative hypothesis that, if it was his client's DNA on the black hooded jumper, it was transferred from the stocking. He accepted that did not defeat the Crown case by itself, but instead reduced the Crown case to reliance on the presence of Mr Sloan's DNA on the stocking. Counsel for Mr Sloan made no reference to the possibility of indirect transference of his client's DNA to the stocking.
In relation to Mr Sloan, the Crown submitted that the jury should be satisfied that his DNA was present on the black hooded jumper and the stocking. She submitted that it was more likely that there was a rich source of DNA on the stocking because Mr Sloan wore it during the robbery over his mouth and "was doing a lot of yelling". The Crown Prosecutor noted that one end of the stocking is "neat and the other end looks like it has been cut". She submitted that they would need to consider who could have worn the stocking before it was cut "that is by a lady wearing stockings as one ordinarily wears stockings on their legs" and that would only yield a poor source of DNA. She submitted that, even if the DNA on the black hooded jumper came from the stocking, that should not prevent the jury concluding that Mr Sloan was one of the two robbers.
In her address, counsel for Mr Sloan pointed to the doubt arising from the presence of C's DNA on much of the material. In relation to the black stocking she reminded the jury that "simply being the major component does not mean you were the last person in contact with it". Critically she conceded that: "What do you know about a stocking; it is a female piece of clothing, so you could infer it is highly unlikely that the major component has contributed his DNA by wearing it, you can exclude that. You could infer that the unknown female C might have contributed her DNA; she can't be excluded from it. You also know that there is a third contributor to the DNA mix on the black stocking, so you have got three people here." (emphasis added)
Counsel for Mr Sloan also accepted that the jury might draw the inference that there is saliva on the black stocking "consistent with the robber putting it over his head" but contended: "… why would you exclude another possible inference and, that is, that the major contributor has contributed either saliva or semen, it is during a sexual encounter with the female, she is unknown, so it is some unknown female; that is how the DNA from the major contributor gets onto the stocking."
Counsel for Mr Sloan then submitted that any DNA on the stocking due to a sexual encounter found, or could have found, its way onto the black hooded jumper from the stocking being put inside its pocket.
No complaint is made about the summing up so it is only necessary to mention it briefly. Relevantly the trial judge summarised the effect of Ms Sesardic's evidence and directed the jury as to the manner of drawing inferences. After outlining the elements of the offences his Honour told the jury that the Crown case was circumstantial and gave a direction in accordance with Chamberlain v R (No 2) [1984] HCA 7; 153 CLR 521 ("Chamberlain"). The jury were directed that if they accepted that the scenario identified by counsel for Mr Sloan (see [44]) was a reasonable explanation for the presence of Mr Sloan's DNA on the stocking then he had to be acquitted. Further, consistent with Shepherd v R [1990] HCA 56; 170 CLR 573 ("Shepherd") his Honour directed the jury that before they could convict they had to be satisfied beyond reasonable doubt as to the existence of certain "essential facts" namely "that Mr Sloan's DNA was found on the black [hooded jumper], and his DNA was found on the black stocking piece, and it was deposited on those items in preparation for or at the time of or in the immediate aftermath of the robbery".

Ground 1: Unreasonable Verdict

The principles attending the determination of the sole ground of appeal were not in dispute on the appeal. This ground requires this Court to "ask itself … whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v The Queen [1994] HCA 63; 181 CLR 487 at 493; "M"; per Mason CJ, Deane, Dawson and Toohey JJ). In doing so this Court must undertake its own "independent assessment of the evidence, both as to its sufficiency and its quality" (Morris v R [1987] HCA 50; 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ). Thus it must consider any competing evidence to that presented by the Crown and weigh the conflicting evidence (SKA v R [2011] HCA 13; 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ).
In W v R [2014] NSWCCA 110 Bathurst CJ (with whom Hoeben CJ at CL and Bellew J agreed) stated at [151] to [152]: "151 It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks: '[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.' (Emphasis in the original, citations omitted). 152 However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [26] and [55]-[56])."
In relation to a circumstantial case the evidence must be reviewed in a manner consistent with Chamberlain and Shepherd. Further in Burrell v R [2009] NSWCCA 193 at [65] Giles JA stated: "This Court must make its own assessment of the evidence. But the assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence."
In his written submissions in support of the appeal, Counsel for Mr Sloan made three related submissions. First he contended that the recovery of his client's DNA did not raise any inference "about the time when or circumstances in which the DNA was deposited". Second he contended that the presence of multiple contributors on the various items that were recovered meant that "each such contributor cannot be excluded as a reasonable possibility of being the last person to have worn the items". Third, he submitted that indirect transfer of Mr Sloan's DNA on to the black hooded jumper and the stocking could not be reasonably excluded. In oral argument these submissions were expanded upon. In particular contrary to the trial, Counsel for Mr Sloan now submitted that no inference could be drawn to the effect that Mr Sloan's DNA was placed on the stocking during the robbery so that no question arose as to whether the Crown had excluded any hypothesis consistent with innocence.
I do not accept these submissions. They suffer from two difficulties. The first is that they only consider Ms Sesardic's evidence in isolation without regard to what can be concluded from the circumstances of the robbery and the nature of the items that were located. The second is that they fail to appreciate the distinction between a DNA result that reveals a major contributor as occurred with the stocking, compared with a mixture as occurred with the black hooded jumper.
I will deal with each of the points raised in Mr Sloan's written submissions on behalf of Mr Sloan in turn although they are related.
Firstly the circumstances of the recovery of the DNA when considered with the balance of the evidence did raise inferences, indeed strong inferences, as to the time and circumstances in which the major contributor's DNA was placed onto the stocking.
The starting point is that the stocking was used to cover the face of one of the offenders during the robbery. The profile of the major contributor to the DNA on the stocking was the same as that of Mr Sloan. The deposit of DNA either came from a rich source, namely saliva, blood or semen, or a substantial amount from a weak source. Accepting that the stocking covered the face of an offender during and after the robbery and given the evidence that the offender yelled during the robbery, there was positive evidence that the stocking had been exposed to a strong source of DNA, namely saliva from the perpetrator. Based on that, it could easily be concluded that the stocking had come into contact with the offender's mouth, that that was the rich source of the bulk of the DNA on the stocking and thus was the source of the DNA that was the major component.
In oral submissions in this Court Counsel for Mr Sloan contended that the evidence did not permit the last step in this reasoning, that is the conclusion that if a person was the so called rich or strong source of DNA on a particular sample then one could infer that they are the major contributor (and vice versa). Thus in oral submissions he contended that the DNA graphs "do nothing in terms of providing an explanation as to ... who was the major contributor to the biological material" as the "amount of DNA recovered refers to the whole entire profile not to the different contributors". This submission is correct so far as the black hooded jumper is concerned, but it is incorrect so far as the stocking is concerned. It is inconsistent with the position taken by his Counsel at the trial and is inconsistent with the evidence of Ms Sesardic set out above at [27].
In support of his submission Counsel for Mr Sloan on the appeal referred this Court to the passage from Ms Sesardic's evidence set out in [37] above. However, as explained, that passage is referable to the black hooded jumper. Unlike the stocking, no major contributor to the DNA on the black hooded jumper was identified. Instead with the black hooded jumper Ms Sesardic was restricted to undertaking the analysis referred to in [33]. The answers set out in [27] which concerned DNA extracted from the black Lonsdale hooded top that yielded a major contributor and other contributors are apposite to the black stocking. They confirm that with the stocking Mr Sloan's DNA was present "in larger amounts" compared to the minor contributors.
While there was positive evidence that a rich source of DNA could have been deposited onto the stocking during the robbery there was no evidence to support the possibility that Mr Sloan or any other male had deposited some other rich source of DNA or large quantities of a poor source on the stocking at any other time. The latter was not supported by a consideration of the likelihoods either. As stated, it was common ground at the trial that the stocking was of the kind regularly worn by a female. Thus the nature of the stocking was such that its normal use meant that it was unlikely to obtain a strong source of male DNA much less a large amount of a poor source of DNA.
Overall the evidence strongly suggested that the major contributor's DNA on the stocking was placed there during or as part of the placing of the stocking over the head of an offender during the robbery. No doubt the realisation that, other than using it as a mask during a robbery, there was no realistic explanation for Mr Sloan's DNA being on the stocking was the reason for the salacious and somewhat desperate alternative hypothesis that was placed before the jury on behalf of Mr Sloan. That hypothesis at least had the virtue of seeking to explain how a large amount of DNA from Mr Sloan came to be on the stocking.
The position of the DNA found on the black hooded jumper is different. The premise of much of the submissions in this Court appears to have been that Ms Sesardic's evidence effectively established that Mr Sloan's DNA was present on that item. As I understand her evidence, that premise only followed if it was first accepted that C's DNA was also present. The basis for such a conclusion was not explored. In any event the position of the black hooded jumper rises and falls no further than the position of the stocking. Ms Sesardic accepted that the DNA on the black hooded jumper could have been transferred from the stocking being placed into its pocket, however that only reverts attention to the stocking, a matter that has already been addressed.
In relation to the second point made on behalf of Mr Sloan, it was submitted that: "In this case, the Crown's DNA expert testified that the DNA recovered on the items from which the appellant was unable to be excluded was 'a mixture that appears to originate from two individuals' and '[i]t's possible that there's more than two' individuals (DNA on the black hoodie); and 'a mixture originating from at least three individuals' (on the black stocking piece). Given the presence of multiple contributors to the DNA profile on both of the items, those other individuals cannot be reasonably excluded as the last person to wear the items."
If the present analysis was confined to only considering Ms Sesardic's evidence then this submission would have much force. However like the previous submission it ignores the evidence that the stocking was exposed to a rich source of DNA during the robbery and the nature of the stocking itself. For the reasons already explained when those matters were combined with Ms Sesardic's evidence it strongly points to Mr Sloan being the person who last wore the stocking.
The written submissions also pointed to the other items used in the robbery in respect of which Mr Sloan's profile was not identified, such as the white gloves and the shotgun. Thus it was submitted that the DNA material recovered was a mixture of at least four other individuals who similarly could not be excluded as the last wearer of the items in question. One of the contributors to the right white glove was "C". She can be excluded as having last worn any of the items in the robbery as the eye witnesses confirmed that both offenders were male. One of the contributors to the shot gun was Mr Thorne and it was the Crown case that he participated in the robbery.
Nevertheless that still leaves possible contributors other than Mr Sloan, Mr Thorne or "C" to the DNA material found on the gloves, the trigger of the gun and other material. Absent the stocking (and Mr Thorne's DNA on the gun) it could be accepted that the DNA material found on the clothes used in the robbery was consistent with those items having been worn by or coming into contact with individuals other than Mr Sloan, Mr Thorne or "C" and that such contact could have occurred prior to or during the commission of any robbery. However the evidence that I have outlined in relation to the stocking displaces the potential exoneratory effect of this material. That evidence strongly points to Mr Sloan having worn the stocking during the robbery. In those circumstances, the presence of unidentifiable DNA from persons, some of whom are not Mr Sloan, on other items of clothing only suggests that other persons may have come into direct or indirect contact with that clothing prior to the robbery. It does not detract from the incriminating effect of the stocking.
In relation to the third point noted in [50], I accept that there was a reasonable hypothesis that Mr Sloan's DNA on the black hooded jumper was as a result of indirect transfer but that does not assist him. However, it follows from what I have already stated that I do not accept that there was any reasonable hypothesis to the effect that the presence of Mr Sloan's DNA on the black stocking was due to indirect transfer. The evidence was all to the contrary. It was no doubt for that reason that Mr Sloan's Counsel did not make any suggestion of secondary transfer in respect of the stocking (see [41]) but instead pursued an alternative hypothesis involving a rich source of Mr Sloan's DNA being placed on the stocking in circumstances consistent with innocence. While that hypothesis was not argued in this Court, for the sake of completeness I record that, in the absence of any evidence to support it, I do not consider that hypothesis to be reasonable.
Otherwise I note that on behalf of Mr Sloan reliance was placed on Fitzgerald v The Queen [2014] HCA 28; 88 ALJR 779 ("Fitzgerald"). In Fitzgerald the appellant and his co-accused were convicted of murder and another offence. The Crown alleged that the appellant and his co-accused were members of a group that had a common purpose to inflict grievous bodily harm upon the occupants of a house, and that in pursuit of that common purpose the victim was killed. The only evidence relied on by the Crown against the appellant was the presence of his DNA in one of five samples taken from the didgeridoo found at the scene. The didgeridoo also contained blood stains with the DNA of the victims. The appellant contended that he had earlier shaken hands with the co-accused and that the co-accused could have transferred DNA when he attended the scene two hours prior to the attack and during the attack itself (at [32]). The Crown's expert stated that primary transfer was the more likely source of the appellant's DNA being present on the didgeridoo, but accepted that secondary transfer was possible (at [36]).
The High Court set aside the conviction on the statutory basis sought to be invoked by Mr Sloan in this case. The Court stated that the relevant issue was not whether it was the appellant's DNA on the didgeridoo but "when and how the DNA got there" (at [27]). Given that in Fitzgerald it was accepted that secondary transfer was possible and that there was evidence of at "least two distinct occasions" in which a secondary transfer may have occurred the Court accepted that the presence of the appellant's DNA did not "raise any inference about the time when or circumstances in which the DNA was deposited" (at [36]). It followed that an alternative hypothesis consistent with the appellant's innocence, namely secondary transfer, was not unreasonable and had not been excluded (at [36]).
However Fitzgerald does not assist Mr Sloan. As noted by the Crown, no possibility of secondary transfer arose in this case in relation to the stocking. There was no evidence proffered of any occasion when secondary transfer could have occurred. The possibility of secondary transfer onto the stocking was rightly disclaimed by Mr Sloan's Counsel during the trial. Otherwise for the reasons stated the totality of the evidence did not raise an alternative inference about the circumstances in which Mr Sloan's DNA was deposited onto the stocking to that contended for by the Crown.
I would dismiss the appeal.
The orders I propose are: 1. The Appellant be granted leave to raise ground 1 of the appeal; and 2. The Appeal be dismissed.

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