Abdullahi Salad v Director of Public Prosecutions for Western Australia
[2024] WASC 40
•22 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ABDULLAHI SALAD -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 40
CORAM: MCGRATH J
HEARD: 9 NOVEMBER 2023
DELIVERED : 22 FEBRUARY 2024
FILE NO/S: SJA 1042 of 2023
BETWEEN: ABDIKHEYR MOHAMED ABDULLAHI SALAD
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1042 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R D YOUNG
File Number : PE 48425 of 2020 & PE 48426 of 2020
Catchwords:
Criminal law - Burglary - Appeal against conviction - Whether verdicts unreasonable and cannot be supported - Turn on own facts
Legislation:
Criminal Code (WA), s 378, s 401(2)(b)
Result:
Extension of time in which to appeal granted
Leave to appeal on grounds one and two not granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms M J Ajduk |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wells v The State of Western Australia [2017] WASCA 27
MCGRATH J:
The appellant was convicted after trial in the Magistrates Court of one count of home burglary contrary to s 401(2)(b) of the Criminal Code (WA) and one count of stealing contrary to s 378 of the Criminal Code.[1] The appellant was sentenced to an intensive supervision order of 12 months for the burglary charge and no penalty was imposed for the stealing charge pursuant to s 11 of the Sentencing Act 1995 (WA).
[1] Charge numbers PE 48425/2020 & PE 48426/2020.
The appellant appeals his convictions on the ground that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence. At the hearing of the appeal the appellant applied to rely on one further ground of appeal, contending that the learned Magistrate erred in law in affording no weight to the evidence that three unidentified males were observed walking in the street prior to the burglary. I granted leave for that ground to be relied upon as ground 2 to the appeal.
The appellant applies for an extension of time in which to appeal.[2] The respondent does not oppose that application.
[2] Application for an extension of time in which to appeal filed 17 May 2023; Affidavit of Ms Adjuk affirmed 17 May 2023.
For the following reasons, I have determined that an extension of time in which to appeal is granted, but leave to appeal is not granted on grounds 1 and 2 and therefore, the appeal must be taken as dismissed.
Magistrates Court proceedings
The prosecution case at trial was that between 4.30 pm and 6.30 pm on 9 October 2020, the appellant entered the home of the complainant by breaking a door and then stole a number of items valued at approximately $2000.[3] In addition, during the burglary a number of items were moved, including a bottle of wine that the complainant had purchased from a local bottle shop.
[3] ts 3, 57 (7/2/2024).
The sole issue at trial was identity. It was not disputed that on 9 October 2020, there was a burglary committed by an unknown person or persons at the complainant's home. The appellant denied that he was the offender.
The prosecution case relied primarily upon three fingerprints found on the wine bottle that had been moved during the burglary. Forensic analysis established that the fingerprints found on the wine bottle matched the proven sample of the appellant's fingerprints.
Counsel for the appellant submitted during his opening address that the question ultimately at trial was whether the prosecution was able to exclude the possibility that the appellant touched the wine bottle before it was purchased by the complainant at a local bottle shop.[4] The defence also relied upon evidence that three unknown males were observed in the street during the afternoon of the burglary. The prosecution did not contend that the appellant was one of the three males observed in the street. To the contrary, the prosecution case disavowed any reliance on that evidence submitting that the evidence was not relevant.
[4] ts 4 (7/2/2023).
Evidence at trial
At trial the prosecution called evidence from four witnesses, namely Ms Alice Scott, complainant, Ms Tia Hunt, a neighbour, Senior Constable Brett Hockey, Forensic Examiner, and Senior Constable Hartley, Fingerprint Expert. The appellant elected to give evidence on his own behalf. I will outline the salient aspects of the evidence received at trial.
Ms Scott
Ms Scott lived at the premises that were subject to the burglary with her partner and two children. At approximately 4.30 pm on 9 October 2020, Ms Scott left her premises. At that time she noted that the garage door was closed.[5]
[5] ts 6 (7/2/2023).
As Ms Scott departed she observed three males standing in the carport of another residence. After the burglary at her residence, Ms Scott was shown CCTV footage of three males in the street who she identified as the same three males that she observed at the time she departed the residence. The CCTV footage showed three males walking in the street.[6] The CCTV footage was recorded from number 106, being on the same side of the street as the complainant's premises at number 90.[7]
[6] Exhibit 1 CCTV footage and still photographs taken from CCTV footage.
[7] ts 7 (7/2/2023).
Ms Scott stated that upon returning to the residence approximately two hours later, she noticed that the garage door was open and that her husband's car door was open. Ms Scott observed that a glass sliding door was smashed, there was a small hole next to the handle and the door was open.[8] Ms Scott stated that the inside of the house 'had been ransacked'.[9] Ms Scott stated that the backroom had a load of their possessions on the bed and floor of the bedroom and living room. A number of small personal items were identified as missing, comprising wireless headphones, two earing sets, prescription glasses, two sterling silver necklaces, vehicle keys and two Australian passports.[10]
[8] ts 8 - 9 (7/2/2023).
[9] ts 9 (7/2/2023).
[10] Exhibit 2, List of stolen items.
Ms Scott identified photographs of the residence taken by police forensic officers.[11] Ms Scott identified a bottle of Tempranillo wine located on the bed in the backroom (third bedroom). Ms Scott stated that the bottle was kept in a cabinet in the main living area near the kitchen and not left on the bed prior to the burglary.[12]
[11] Exhibit 3, Photographs of inside residence.
[12] ts 12 (7/2/2023).
Ms Scott gave evidence that the bottle of wine had been purchased a few weeks before from Liquor Barons in Carlisle.[13] Ms Scott was unable to recall exactly how many bottles of wine were in the cabinet but stated that she usually kept three to four bottles in the cabinet. No other bottles of wine were missing, nor were any other bottles moved. Ms Scott stated that she estimated the value of the bottle of wine was approximately $15.00 to $20.00.[14]
[13] ts 13 (7/2/2023).
[14] ts 14 (7/2/2023).
In cross‑examination, Ms Scott stated that the three males were situated across the road and that they were looking across at her. They were present when she departed the premises in her vehicle.[15]
Ms Hunt
[15] ts 15 (7/2/2023).
Ms Hunt resided at a property adjacent to Ms Scott's property. Ms Hunt gave evidence that at approximately 5.15 pm on 9 October 2020, she observed that the complainant's garage door was open.[16] As Ms Hunt continued down the road for approximately 300 m from her property, she observed three males with backpacks.[17] The three males were close to her vehicle and she observed them looking into her vehicle. Ms Hunt locked her vehicle and departed. Approximately one hour later, Ms Hunt returned and observed the garage door was still open. Ms Hunt stated that she was shown by the complainant a still photograph taken from CCTV footage. She identified the three males depicted in the photograph as the same persons she had observed in the street.[18] Ms Hunt was not cross‑examined.[19]
Senior Constable Hockey
[16] ts 20 (7/2/2023).
[17] ts 20 (7/2/2023).
[18] ts 21 (7/2/2023).
[19] ts 21 (7/2/2023).
Senior Constable Hockey gave evidence that he conducted a forensic examination of the residence, including a fingerprint examination.[20] He took a number of photographs, including that of the wine bottle identifying the location of the fingerprints.[21] The photographs depicted the wine bottle in situ in the rear bedroom of the property.[22]
[20] ts 22 - 25 (7/2/2023).
[21] Exhibit 5, Six photographs of wine bottle.
[22] ts 23 (7/2/2023).
Officer Hockey identified five fingerprints on the wine bottle, which were labelled BHE1 to BHE5 respectively.
In cross-examination, Mr Hockey confirmed that no DNA examination was conducted. He also gave evidence that he is an officer in the Cannington District, which includes Belmont and Carlisle, and that the two suburbs are in close proximity to each other.[23]
Senior Constable Hartley
[23] ts 28 (7/2/2023).
Senior Constable Hartley, a forensic officer specialising in fingerprint examination,[24] gave evidence that he had analysed the fingerprints located on the wine bottle and determined that three of the fingerprints could be identified as the appellant's fingerprints, and the two further prints remained unidentified after being checked against the police system NAFIS (National Automated Fingerprint Identification System).[25]
[24] ts 30 (7/2/2023).
[25] ts 31, 33 (7/2/2023).
Mr Hartley gave evidence regarding the respective fingers that had produced the prints and the location of the prints on the wine bottle.[26] The locations of the fingerprints on the wine bottle were summarised in Mr Hartley's Fingerprint Report tendered at trial.[27] Three fingerprints were identified to the appellant.
[26] ts 32 - 34 (7/2/2023); Exhibit 7, Fingerprint examination report.
[27] Exhibit 7, Fingerprint examination report.
Fingerprint BHE1 (barcode F0852986‑2) was identified as that of the appellant's right index finger, and its position close to the base or heel of the bottle, adjacent to the bottom right of the rear label, as may be observed in annexure 2A to exhibit 7. This print and its location may also be observed, in exhibits 5.1 and 5.5, and image 3 of exhibit 5.7.
Fingerprint BHE5 (barcode F0852990‑1) was identified as that of the appellant's right little finger, and its horizontal position just above the rear label, pointing to the left, as may be observed in exhibit 7. The print and its location may also be seen in exhibit 5.4.
Fingerprint BHE2 (barcode F0852987‑0) was identified as that of the appellant's left index finger, and its position on the left hand side of the neck of the bottle just below the capsule (the wrapping around the top of the neck), which may be observed in annexure 2A to exhibit 7. The print and its location may also be observed in exhibits 5.2 and 5.6.
Mr Hartley gave evidence that the analysis could not determine when a fingerprint was deposited on an object given that a fingerprint may be deposited weeks or even months before it is identified.[28] The officer also gave evidence under cross‑examination that it was not possible to say when the fingerprints were deposited on the wine bottle and that it could have been deposited months earlier.[29] A fingerprint will diminish in time with specific factors impacting on the fingerprints.
[28] ts 35 (7/2/2023).
[29] ts 35 - 36 (7/2/2023).
Mr Hartley stated that in respect to his report that the 'yellow box shows the direction of the finger on the bottle'. His Honour asked whether it is possible to say which direction the fingers are facing, whether horizontal or vertical, when the prints were deposited. The learned Magistrate, by way of illustration, referred to the picking up of a thermos flask. Mr Hartley stated that it was not possible to say which direction the fingers are facing.[30] Only if all the fingers deposited prints then such an assessment may be made.[31] Counsel for the prosecution did not ask any questions regarding whether it was possible to determine the direction of fingers or the fingerprints.
[30] ts 34 (7/2/2023).
[31] ts 34 (7/2/2023).
The learned Magistrate asked a series of questions of Mr Hartley.[32] The officer accepted the proposition that some surfaces are more conducive to fingerprints being deposited, with a wine bottle being a good receptor to prints.[33] A fingerprint diminishes over time as it is affected by multiple factors, such as by the weather, environment, surface the object is left on and the conditions in which the item is kept. The officer stated that one fingerprint over the top of another will make the print appear as a smudge and examination is difficult. The officer accepted the proposition that the more quickly an object is examined after being touched, the more likely that a quality print would be identified.[34] A fingerprint on an object kept indoors will more likely retain a quality print compared to a print on an object kept outside.
Tendered statement
[32] ts 34, 37 - 39 (7/2/2023).
[33] ts 37 (7/2/2023).
[34] ts 38 (7/2/2023).
The prosecution tendered a statement from Police Auxiliary Officer Mr Kenney confirming that he took the appellant's fingerprints after he was arrested.[35] That examination therefore produced the proven sample of the appellant's fingerprints. Mr Kenney also confirmed that no record of interview was conducted with the appellant.
The appellant
[35] Exhibit 6, Statement of Mr Kenney dated 20 February 2021.
The appellant elected to give evidence.[36] The appellant was asked about his living arrangements in the latter part of 2020. The appellant gave evidence that he was homeless, staying with friends or living in the park.[37] The appellant was not employed.[38] The appellant stated that the persons he sometimes stayed with lived in Belmont and Cloverdale.[39] A friend named 'Klaud' lived in Cloverdale and a lady lived at the house in Belmont. Further, the appellant stated that he stayed in Bentley with a person named Hussein.[40] The appellant stated that he stayed with a girlfriend named Melissa at a house in Carlisle.[41]
[36] ts 40 - 49 (7/2/2023).
[37] ts 41 (7/2/2024).
[38] ts 43 (7/2/2023).
[39] ts 41 - 42 (7/2/223).
[40] ts 42 (7/2/2024).
[41]ts 42 (7/2/2023).
The appellant stated that he was unable to recall the addresses of the houses, nor the dates when he stayed at the houses.[42]
[42] ts 43 (7/2/2023).
During the latter part of 2020, the appellant stated that he did not work and that he spent his time 'looking for alcohol' and that he would drink and get drunk. The appellant was asked from where he would get the alcohol. The appellant stated that 'wherever I was at that time, I went to a nearby - nearest bottle shop'.[43]
[43] ts 44 (7/2/2023).
The appellant then gave the following testimony during his examination in chief:[44]
Counsel: Okay. Now, can you remember each of the bottle shops that you have attended during that period of time?
Interpreter: I don't remember.
Counsel: Okay. Now, you're saying that at some point during that period, you were staying with your girlfriend in Carlisle?
Interpreter: Yes.
Counsel: And when you were staying with her, where would you get your alcohol from?
Interpreter: I got - I used to - I got it from the nearest shop - bottle shop.
Counsel: Do you remember the name of that bottle shop?
Interpreter: I don't remember.
[44] ts 44 - 45 (7/2/2023).
In cross‑examination, the appellant stated that during the relevant period he was in receipt of Centrelink but did not pay rent for his accommodation. His income was spent on alcohol and drugs. The appellant stated that if he did not have money he would steal alcohol.[45] The appellant agreed that in bottle shops there 'are lots of bottles'. He confirmed that he was drinking alcohol each day until he 'was drunk'.
[45] ts 47 (7/2/2023).
The appellant gave testimony that he never broke into anyone's house. He denied having any involvement with the offence.[46]
[46] ts 48 (7/2/2023).
The learned Magistrate asked the appellant whether he had a preference for 'spirits, beer, liquors, port or whether he had no particular preference'. The appellant confirmed that he had no particular preference.
The learned Magistrate asked the appellant about the price range of the wines that he would purchase.[47] The appellant confirmed that he was 'looking for the cheapest or the cheaper ones'. The appellant stated that he would 'go around the shop and look for the lowest price tag, and grab it. I don't care about the name. I don't look at the name'.[48] The appellant agreed with his Honour's proposition that the price of the wine was 'on the shelf beneath the bottles'.[49]
[47] ts 48 - 49 (7/2/2023).
[48] ts 49 (7/2/2023).
[49] ts 49 (7/2/2023).
Magistrate's decision
The learned Magistrate outlined the testimony of the witnesses and identified relevant legal principles without error. The learned Magistrate stated that the only issue at trial was the identity of the person who committed the burglary and stole property. The learned Magistrate stated that the prosecution must prove that the only rational inference was that the accused committed the burglary.[50] His Honour determined that the inference consistent with innocence was not reasonably open for the following reasons:
[50] ts 57 (7/2/2023).
1.It was not in dispute that the bottle of wine was purchased by the complainant and placed in a cabinet in the living area of the residence. The complainant stated that most likely the wine was bought a few weeks before from Liquor Barons in Carlisle.[51] The wine bottle was moved from the cabinet to the bedroom by the burglar.
2.The appellant gave evidence broadly about his accommodation in the latter part of 2020. The learned Magistrate stated that the accused was 'very vague about where he stayed', referring to Carlisle and surrounding areas.[52] The appellant could not say where he was living or when. Further, he was unable to say which bottle shops he visited.
3.The learned Magistrate stated the alternative inference is that the appellant entered the Liquor Barons in Carlisle and picked up the wine bottle and then decided not to buy it and therefore, placed it back on the shelf. His Honour found that this alternative inference to be 'entirely fanciful'.[53]
4.The appellant was unable to state which bottle shop he had visited. His Honour stated that there must be a number of bottle shops in the relevant area.[54]
5.The appellant would have had to have gone to the exact liquor store within a time reasonably proximate to when the complainant bought the bottle of wine.[55] The forensic officers gave evidence that the more recent an item is touched the more identifiable prints may be identified for the reason that fingerprints diminish over time and secondly, the longer the timeframe between an item being handled the greater likelihood that the fingerprints will be smudged or obscured by other persons.[56]
6.The appellant would not have been discerning enough to take wine bottles off the shelf and assess the wine because he did not care what type of alcohol he was acquiring so long as it was cheap.[57]
7.It was not necessary for the appellant to pick up the wine bottle in the shop to check the price given that the price tag is on the shelf.[58]
8.There would be no reason for the appellant to browse through bottles and pick up a bottle and put it back on the shelf if he was planning to steal it.[59]
9.The appellant's fingerprints were clear and must not have been obscured by the complainant when the bottle was purchased.[60] The appellant left three quality fingerprints.
[51] ts 58 (7/2/2023).
[52] ts 60 - 61 (7/2/2023).
[53] ts 60 (7/2/2023).
[54] ts 61 (7/2/2023).
[55] ts 61 (7/2/2023).
[56] ts 59 (7/2/2023).
[57] ts 61 - 62 (7/2/2023).
[58] ts 61 (7/2/2023).
[59] ts 61 - 62 (7/2/2023).
[60] ts 62 (7/2/2023).
The learned Magistrate stated that he could not give any weight to the evidence concerning the three males who were in the vicinity of the residence approximately half an hour prior to the burglary. His Honour stated that that evidence only established that three males were in the vicinity of the property and that they were unknown to the complainant and Ms Hunt. His Honour observed that whether they were unknown to other people in the street is itself unknown. The learned Magistrate stated that the evidence is neither incriminating or exculpatory and does not add anything to the case either way.[61]
[61] ts 58 (7/2/2023).
Grounds of appeal
The appellant's Notice of Appeal pleads one ground as follows:
1.The verdicts of guilty, upon which the conviction of home burglary and commit offence and stealing were based, were unreasonable or could not be supported having regard to the evidence.
By an application dated 6 November 2023, the appellant applied for the following ground of appeal to be added:
2.The Magistrate erred in law in affording no weight to the closed circuit television evidence.
At the hearing of the appeal on 9 November 2023, the prosecution consented to the appellant relying upon the further ground. Accordingly, I ordered that the further ground be relied upon at the appeal.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[62]
[62] Criminal Appeals Act 2004 (WA), s 9(1).
The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.[63] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[64]
[63] Criminal Appeals Act 2004 (WA), s 9(2).
[64] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
Legal Principles regarding unreasonable verdict
An appeal court, in determining whether a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, must undertake its own independent assessment of the sufficiency and quality of the evidence and determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand. The same principles apply to a verdict of guilty entered after a trial before a judge alone or before a magistrate.[65]
[65] Wells v The State of Western Australia [2017] WASCA 27, [13] - [14].
The principles applicable to a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence were summarised by the Court of Appeal in Wells v The State of Western Australia as follows:[66]
[66] Wells v The State of Western Australia [2017] WASCA 27, [13].
13The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (footnote omitted)
In Wells v The State of Western Australia, the Court of Appeal summarised the principles relating to criminal cases that turn upon circumstantial evidence, which were restated by the High Court in The Queen v Baden‑Clay,[67] as follows:[68]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)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 an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[67] The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013, [46] ‑ [47].
[68] Wells v The State of Western Australia [2017] WASCA 27, [14].
Assessment of the appeal
Ground one
As counsel agreed at the hearing of the appeal, the vast majority of the evidence at trial was not controversial. There was no issue at trial that on 20 October 2022, a burglary was committed at Ms Scott's residence by an unknown person or persons. Further, it was not in dispute that personal items were stolen and that other items, including the bottle of wine, had been moved during the burglary. The appellant accepted that his fingerprints were found on the wine bottle. The appellant accepted that the sole issue at trial was identity.[69] The appellant denied that he was involved in the burglary. The issue at trial was how and when did the appellant handle the wine bottle and thereby, leave his fingerprints.
[69] ts 4 (07/02/23 - defence opening).
Accordingly, at trial the learned Magistrate was required to consider two competing inferences. The prosecution inference was that the appellant left the fingerprints on the wine bottle when moving it during the burglary which he was committing and therefore, he was the burglar at the premises. The competing inference at trial was that the appellant had left his fingerprints on the wine bottle at an earlier time, being when he attended at the bottle shop in Carlisle. The contention being that the appellant had entered the bottle shop and touched the wine bottle, which then was not purchased or stolen but remained on the shelf in the bottle shop, and was subsequently purchased by Ms Scott.[70]
[70] ts 4 (07/02/23 - defence opening).
The appellant stated that the inference consistent with innocence was reasonably open given the evidence that:[71]
(i)The fingerprints may have been deposited on the bottle weeks or months prior to the burglary.
(ii)The appellant lived in the area and visited bottle shops to buy or steal alcohol.
(iii)There were three unknown men who were watching the complainant and her residence when she departed the residence prior to the burglary occurring.
(iv)No alcohol was stolen during the burglary despite the appellant being an alcoholic.
[71] Appellant's submissions, [79].
The respondent submitted that the inference that the appellant's fingerprints had been left during a contact with the bottle of wine inside the bottle shop on another occasion whilst he was purchasing or stealing alcohol, and that the prints had not been obscured during the subsequent period of remaining on the shelf, then being purchased, transported and stored, was not a reasonable inference.[72]
[72] Respondent's submissions, [28].
Counsel for the respondent submitted that the specific location and the direction of the appellant's fingerprints supported the conviction. Counsel submitted that fingerprints BEH1 and BEH2 are consistent only with the bottle being lifted or held upside down, which is inconsistent with the appellant's contention that he must have picked up the bottle from a display shelf in order to examine it, before placing it back on the shelf. Counsel contended that this finding was open given the location and the direction of the fingerprints. This contention did not form part of the prosecution case at trial. I do not accept counsel's submission for the following reason.
At trial the learned Magistrate asked a series of questions concerning whether it was possible to discern the direction of the finger when the print was left on an article. By way of illustration, the learned Magistrate referred to the holding of a thermos flask. To that question, Mr Hartley stated that it was not possible to say which direction the fingers are facing. Given that testimony, I am not able to make the finding that the fingers that left the prints were facing in a particular direction. The evidence established the respective three fingerprints were of fingers on both the left and right hand and were identified on the neck of the bottle, towards the bottom and in the middle of the bottle.
The respondent also submitted that the presence of three men in the vicinity should be given little weight. There was nothing to connect the persons to the burglary other than their presence in the vicinity on a suburban street and 'the witnesses' perception of their apparently curious behaviour.[73] The respondent submitted that the presence of three people with backpacks on a suburban street is unremarkable.
Evaluation of ground one
[73] Respondent's submissions, [26].
I now turn to my evaluation of the evidence at trial. After careful consideration, I find that the only reasonable inference open on the evidence was that the appellant committed the offence. The learned Magistrate acting reasonably was not precluded by the totality of the evidence at trial from convicting the appellant. The verdicts on the two charges were supported by the evidence that the learned Magistrate was entitled to accept and from the inferences that the learned Magistrate was entitled to logically draw from that evidence. I have reached this decision for the following reasons.
First, the evidence of the appellant at trial was extremely vague concerning his living arrangements during the period. I accept that precision of recollection is not to be expected. However, the vagueness of the appellant's recollection regarding the suburbs in which he resided, and the period when he lived there, renders his evidence concerning attending unnamed wine shops unreliable. The appellant was not able to identify which wine shops he attended and when.
Second, the appellant gave evidence concerning the manner in which he bought the least expensive wine or stole bottles. The appellant agreed that the price of wine is displayed on the shelf.[74] The appellant is not a discerning buyer. The appellant's evidence was that he 'would go around in the shop and look for the lowest tag, and grab it. I don't care about the name. I don't look at the name'.[75] That the appellant touched the wine bottle in various locations on the bottle and then decided to return the bottle to the shop shelf is very unlikely given his preference to buy the cheapest or steal.
[74] ts 49 (7/2/2023).
[75] ts 49 (7/2/2023).
Third, the appellant left three clear fingerprints from both hands on the top, middle and towards the bottom of the wine bottle. The fingerprints are inconsistent with fleeting contact that would be expected by a person when moving the bottle to take another. It is supportive of the type of contact with the bottle when it was moved from the cabinet to the spare room at the complainant's residence.
Fourth, Mr Hartley gave evidence that whilst a fingerprint may remain on an item for weeks or months, one factor that affects the print's longevity is if another person touches the item, which may cause smudging resulting in the fingerprint being insufficient. The wine bottle must have been handled by the complainant at purchase, as well as most likely by a sales attendant, and then transported and placed by the complainant in her cabinet. The complainant and the shop attendant must have handled the wine bottle in such a way as not to obscure the appellant's fingerprints. It is clear that others had touched the wine bottle leaving the unidentified fingerprints. Despite those factors the appellant's fingerprints were evident.
Fifth, the fact that the appellant, who is an alcoholic, did not steal the wine does not support the defence inference. The decision to move the bottle of wine and not to steal the wine may have been made on the basis that smaller and more valuable items were available. I agree with the submission of the respondent that the fact that the alcohol had been moved within the house, but ultimately not stolen, and that no other alcohol was stolen, was neutral between the competing inferences.
I have considered the evidence of the complainant and Ms Hunt that they observed three men in the general vicinity and also the images taken from the CCTV footage. I find that the evidence concerning the three men is of limited relevance. However, I do take that evidence into account. That persons were observed in the suburban street is not surprising. There is nothing to connect the three persons to the burglary. It is speculative to suggest that one or more of the three identified men were the perpetrators of the burglary.
Having full regard to the consideration that the learned Magistrate was the tribunal of fact entrusted with the responsibility of determining the guilt or innocence of the appellant, and having full regard to the consideration that the learned Magistrate had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of the decision. I find that it is not dangerous to permit the conviction to stand. Leave to appeal is not granted on ground one.
Ground two
Given that I expressly considered the presence of the three unidentified men in the vicinity of the residence and took that evidence into account in determining ground one, I need not consider ground two. Leave to appeal is not granted on ground two.
Conclusion
Accordingly, I grant an extension of time in which to appeal but do not grant leave to appeal on the grounds of appeal. Therefore, the appeal is taken as dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
22 FEBRUARY 2024
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