Abraham v The The King

Case •

[2022] NSWCCA 242

•

22 November 2022

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Abraham v R [2022] NSWCCA 242
Hearing dates: 24 June 2022
Date of orders: 22 November 2022
Decision date: 22 November 2022
Before: Brereton JA at [1];
Wilson J at [55];
Cavanagh J at [58]
Decision:

(1) Grant leave to appeal; and

(2) Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Possession of firearms – Circumstantial case – Firearms and ammunition containing applicant’s DNA found in wall cavity of premises leased by applicant’s business – Whether reasonable possibility of secondary transfer of DNA during police search excluded – Presumption of possession under Firearms Act1996 (NSW), s 4A on some counts – Open to jury to be satisfied beyond reasonable doubt of applicant’s guilt of all counts – Appeal dismissed

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5(1)

Firearms Act 1996 (NSW), ss 4A, 7, 36, 66,

Weapons Prohibition Act 1998 (NSW), s 7

Cases Cited:

Atai v R [2014] NSWCCA 210

Barca v R (1975) 133 CLR 82; [1975] HCA 42

Dansie v The Queen [2022] HCA 25; (2022) 96 ALR 728

De Silva v R (2019) 268 CLR 57; [2019] HCA 48

Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78

Frew v R [2022] NSWCCA 165

Liberato v R (1985) 159 CLR 507; [1985] HCA 66

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

May v R [2012] NSWCCA 250

Seifeddine v R [2021] NSWCCA 214

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:Principal judgment
Parties: Tim Abraham (Applicant)
The Crown (Respondent)
Representation:

Counsel:

K Stares SC (Applicant)
G Newton SC (Respondent)

Solicitors:

Hanna Legal (Applicant)
Office of Director of Public Prosecutions (Respondent)
File Number(s): 2017/242701
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW at Parramatta
Jurisdiction:
Criminal
Citation:

N/A

Date of Decision:
25 July 2019
Before:
Woodburne SC DCJ
File Number(s):
2017/242701

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted by a jury following trial in the District Court of three counts of possessing a pistol (Firearms Act 1996 (NSW) s 7(1)); three counts of possessing an unregistered firearm (s 36(1)); one count of possessing a defaced firearm (s 66(1)(b)); and two counts of possessing a prohibited weapon, namely an ammunition magazine (Weapons Prohibition Act 1998 (NSW), s 7(1)).

The offences related to three handguns and two ammunition magazines, all of which were found in a bucket, inside a lockable storage hatch in a wall cavity, within premises leased by the applicant’s restaurant business. The applicant’s DNA and that of his co-accused was detected on the bucket and some of the firearms. At trial, the possibility of secondary transfer of DNA was at issue; the police officer conducting the search did not change his gloves between touching surfaces in the premises such as doorknobs, and handling the firearms. The applicant and co-accused argued that the possibility that their DNA may have been deposited on the firearms during that process could not be excluded. Also relevant was that in the case of the applicant, as occupant/lessee (via his business) of the premises on which the firearms were located, s 4A of the Firearms Act operated to create a presumption that the firearms were in his possession, unless he proved on balance of probabilities that he did not know or could not reasonably be expected to know of their presence. (This presumption does not apply to the charges relating only to the magazines).

The jury convicted both the applicant and his co-accused. Before the hearing of the present appeal, an appeal by the co-accused against his conviction succeeded on the ground that the verdict was unreasonable, the possibility of secondary transfer of DNA not having been excluded. The applicant sought leave to appeal against his conviction on substantially the same ground.

Held (per Brereton JA [54]; Wilson and Cavanagh JJ agreeing [57], [59]), granting leave to appeal but dismissing the appeal:

As to the secondary transfer of DNA:

  1. If the case against the applicant rested on the DNA evidence alone, a reasonable possibility that its presence on the bucket, the socks, the weapons and the magazines, was attributable to secondary transfer was not excluded, and there would have remained at least a reasonable doubt as to the applicant’s guilt. However, the presence of his DNA was not the only “circumstance” which contributed to the circumstantial case. The evidence is not to be looked at in a piecemeal fashion, but all of the circumstances considered and weighed: [30] (Brereton JA).

As to the firearms charges and the presumption of possession:

  1. On the evidence, the circumstances were such that the applicant’s version of events – that there were multiple buckets in the storage hatch at the relevant time, and so the bucket he was seen placing in the hatch may not have been the same one containing the firearms – could not be true. Accordingly, the applicant did not discharge his onus under Firearms Act, s 4A of proving on the balance of probabilities that he did not know and could not reasonably be expected to know that the firearms were in the premises. It follows that the jury was entitled to consider the firearms (not the ammunition magazines) as being in his possession, and to convict on those counts: [36]-[40] (Brereton JA).

As to the magazine charges (to which the presumption of possession does not apply):

  1. In the circumstances, the only hypothesis consistent with the applicant’s innocence is that he placed a bucket which did not contain the firearms and magazines into the hatch, that the co-accused placed the firearms and magazines in the bucket when accessing the hatch on a later date, and that the applicant’s DNA was transferred to the bucket and items in it by secondary transfer in the course of the search. On the evidence, the accumulation of improbabilities that would be necessary for that hypothesis to be true renders it so remote as not to be rational. It was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the magazine charges: [45]-[53] (Brereton JA).

As to the whether the conviction was unreasonable:

  1. Upon independent assessment of the whole of the evidence, there is no reasonable doubt as to the applicant’s guilt that ought to have been entertained by the jury. The jury was entitled to convict on all counts: [40], [53] (Brereton JA); [56] (Wilson J); [56] (Cavanagh J).

Judgment

  1. BRERETON JA: On 25 July 2019, the applicant Tim Abraham and a co-accused Mounir Seifeddine were convicted by a jury in the District Court, following a trial which had commenced on 4 July 2019, on each of the following nine counts of an indictment to which they had pleaded not guilty:

  1. Count 1: Possess a pistol, namely a Fabrique Nationale Hi-Power model self-loading pistol, not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW) (the “Firearms Act”)

  2. Count 2: Possess an unregistered firearm, namely a Fabrique Nationale Hi-Power model self-loading pistol, contrary to s 36(1) of the Firearms Act;

  3. Count 3: Possess a defaced firearm, namely a Fabrique Nationale Hi-Power model self-loading pistol, contrary to s 66(1)(b) of the Firearms Act;

  4. Count 4: Possess a pistol, namely a Beretta Model 1934 semi-automatic pistol, not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act;

  5. Count 5: Possess an unregistered firearm, namely a Beretta Model 1934 semi-automatic pistol, contrary to s 36(1) of the Firearms Act;

  6. Count 6: Possess a pistol, namely a .38 calibre Smith & Wesson Military and Police six-chamber revolver, not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act;

  7. Count 7: Possess an unregistered firearm, namely a .38 calibre Smith & Wesson Military and Police six chamber revolver, contrary to s 36(1) of the Firearms Act;

  8. Count 8: Possess a prohibited weapon, namely a MEC-GAR detachable box magazine, without being authorised to do so by a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW); and

  9. Count 9: Possess a prohibited weapon, namely a detachable box magazine of unknown manufacture, without being authorised to do so by permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

  1. The applicant seeks leave to appeal from his convictions, on the single ground that the verdicts are unreasonable or cannot be supported having regard to the evidence. Leave is required, because that ground does not involve a question of law alone. [1]

    1. Criminal Appeal Act 1912 (NSW), s 5(1).

  2. The co-accused Mr Seifeddine appealed successfully from his conviction, on the same ground, resulting in his acquittal on all counts. [2] The central issue in that appeal was the reliability of evidence as to the presence of Mr Seifeddine’s DNA on and around the firearms, in the light of the possibility of crime scene contamination. The applicant contends that the same issue affects the present appeal.

    2. Seifeddine v R [2021] NSWCCA 214.

The Crown Case

  1. The indictment related to three unregistered firearms: a Fabrique Nationale self-loading pistol, which had had its serial number obliterated (Counts 1-3); a Beretta semi-automatic pistol (Counts 4 and 5); and a .38 calibre Smith & Wesson revolver (Counts 6 and 7). Counts 8 and 9 related to two detachable box magazines. Neither accused held a licence to possess any of them.

  2. On 9 August 2017, police executed a search warrant at a café/restaurant owned by the applicant. In the upstairs storage room of the restaurant, there was found to be a small, white, hinged door in the wall, with a lock on it, leading to a cavity (“the storage hatch”). [3] Directly above the door to the storage hatch was a functioning CCTV camera. After opening the door to the storage hatch, police located a white plastic bucket inside the cavity, with a label on it which read “pickled cucumbers”. [4] Inside that bucket were the Fabrique Nationale pistol; the Smith & Wesson revolver, which was loaded, wrapped in a black sock; [5] the Beretta pistol, wrapped in a navy and white sock; [6] some ammunition, in a latex glove; [7] the box magazines; and also a dirty white towel and a yellow towel. [8] Police also retrieved from the premises CCTV footage which showed that, on the evening of 2 August 2017, the applicant retrieved a white bucket from the storage hatch and took it back to his office, where three other men were present, and shortly thereafter he returned the bucket to the storage hatch. [9] The footage also showed that on 8 August 2017, Mr Seifeddine went to the door of the storage hatch carrying a white yoghurt bucket, spent a minute or two at the entrance to the storage hatch, and then left with the yoghurt bucket; it could not be ascertained from the CCTV footage what he was doing in the storage hatch. [10] The footage showed no other person accessing the storage hatch between 2 August and 9 August 2017, when the police seized the CCTV footage. [11]

    3. Exhibit D.

    4. Exhibit N.

    5. Exhibit J.

    6. Exhibit K.

    7. Exhibit O.

    8. Exhibits F and M.

    9. Exhibits T and R.

    10. Exhibits T and R.

    11. Exhibit R; Tcpt, 9 July 2019, p 187(30)-(43).

  3. Forensic examination of the pickle bucket and the items found in it was conducted by a forensic biologist, Ms Bate. The level and complexity of DNA samples recovered from the Fabrique Nationale pistol was such that it was not suitable for comparison. A sample recovered from the trigger area of the Smith & Wesson revolver (R6), and another from the black sock in which the Smith & Wesson revolver was wrapped (R10), were mixtures of at least three individuals, of which two had the same profile as the applicant and Mr Seifeddine. Samples of DNA from the handgrip of the Beretta pistol (R12), and on the navy and white sock in which it was wrapped (R15), were mixtures to which the major contributor had the same profile as the applicant. [12] A sample recovered from the handle of the pickle bucket (R19) was a mixture originating from at least five individuals, to which the major contributor had the same profile as Mr Seifeddine; there was insufficient DNA to identify the minor contributors. A sample from the inside rim of the bucket lid (R20) was a mixture originating from at least three individuals, of whom two had the same profiles as Mr Abraham and Mr Seifeddine. A sample from the yellow towel (R21) was a mixture originating from at least four individuals, of whom two had the same profiles as Mr Abraham and Mr Seifeddine. At trial it was not in issue that the DNA recovered in fact originated from the applicant. [13] Rather, it was contended that the possibility that the presence of his DNA on the items in question resulted from some indirect or secondary transfer could not be excluded. [14]

    12. Exhibit P.

    13. Tcpt, 16 July 2019, pp 373(17)-(27), 378(14)-(16).

    14. Tcpt, 16 July 2019, p 380(10)-(47).

  4. The Crown case that the applicant was in possession of each of the items found within the white bucket rested factually on the accumulation of the following seven circumstances:

  1. the applicant was the registered owner of the restaurant and lessee of the premises;

  2. he managed the restaurant, and attended upon it daily;

  3. he had access to the storage room;

  4. he installed the CCTV camera above the storage hatch, and faced the CCTV camera in his office towards the ground;

  5. he accessed the storage hatch on 2 August 2017, retrieving and later returning a white bucket, identical in appearance to the pickle bucket, from that area;

  6. he and Mr Seifeddine were the only people to have accessed the storage hatch during the eight days before the execution of the search warrant; and

  7. the DNA findings referred to above.

The Defence Case

  1. At the trial, the applicant gave sworn evidence, with the assistance of an interpreter. He said that he was the owner of the restaurant and lessee of the premises, employing 17 people and a team of cleaners who attended the premises for two to three hours each evening after the restaurant had closed. He said that his usual practice was to open the restaurant in the morning, then go to his other job as a shopfitter, and return to the premises later in the afternoon.

  2. According to the applicant, five staff members, and the cleaners, had keys to the building. The office area was secured by a keypad, but most of the employees knew the combination. The cleaners did not have access to the office. He said that he had been responsible for the installation of the security cameras and regularly touched them when maintaining them. The inside of the office was monitored by a security camera, but it was pointed to the ground, the applicant said because he regularly changed there after showering.

  3. On 2 August 2017 the applicant was fixing an air conditioner at the back of the restaurant when three men, two of whom were known to him, attended the premises for dinner. One of them installed air conditioners for a living and offered to assist the applicant with the repair. The applicant then escorted the three men upstairs to the office, so they could download the air conditioner manual from the internet.

  4. The applicant left the office to retrieve a white pickle bucket from the storage hatch, in which he said there were spare electrical parts, including air conditioner parts. There were, according to him, four white buckets in the storage hatch. He took one back to the office, but then realised that the part he required was not in it. He and the three men consumed some food in the office and he then returned the bucket to the storage hatch, following which the three men left. He said that he ordered between 35 and 60 white buckets for use in the restaurant every fortnight.

  5. The applicant denied ever having seen or touched the firearms, and said that he had no knowledge of their being on the premises and that they did not belong to him.

  6. When cross-examined by counsel for Mr Seifeddine, the applicant said that all staff were responsible for helping to move the buckets into the restaurant once they had been delivered and that they were either physically carried up the stairs, or moved into the storeroom using an electric winch.

  7. Under cross-examination by the Crown, the applicant accepted that he had an electrician who worked for him, but said that he could not call on him for assistance on 2 August 2017, because he was not specialised in air conditioner repairs. When asked about the installation of a security camera directly above the storage hatch, the applicant accepted that he was responsible for the installation of the security cameras, but denied that he had placed that camera in such a way as to capture anyone who accessed the hatch. When it was put to him that there was only ever one white bucket within the storage hatch, the applicant said that someone might have removed the other three buckets between 2 August and 9 August 2017.

  8. When questioned about his apparent lack of surprise during the execution of the search warrant, the applicant said that he was not shocked by the discovery of the firearms, because they were not his and he did not know that they were there. In respect of his response to the police finding the firearms, he gave this evidence: [15]

    15. Tcpt, 12 July 2019, pp 320(49) – 321(36).

“Q. How shocked were you?

A. Normal.

Q. Sorry?

A. Normal shocked. Normal. He asked me – he said to me, ‘That’s yours?’. I said, ‘No’.

Q. But I’m saying, in your mind, how shocked were you?

A. Shocked, but not that shocked.

Q. Not that shocked?

A. Yes.

Q. You’re not that shocked by firearms being found at your premises?

A. They’re not mine. Why I’m going to be shocked?

Q. Well, the fact that they’re found at your premises, I mean, isn’t that quite concerning to you?

A. No.

Q. Not at all concerning?

A. Normal.

Q. Sorry?

A. Normal

Q. Normal?

A. Something fine, but police officer, why I’m going to be shocked?

Q. That’s just normal to you, is it?

A. I think it’s normal.

Q. Okay. You think it’s normal that firearms would be found at your premises.

A. Yes. It’s normal.

Q. Is it normal, in fact, that you weren’t shocked because you knew there were firearms in that hatch?

A. No. It’s not this”.

  1. It was suggested to the applicant that he did not appear surprised on the video, and he answered “I was surprised”. It was suggested that he did not appear concerned because he knew the firearms were there, and he answered, “Nah, I do not know they were there”. It was suggested to him that he lied when he told the police he had not seen any (firearms), and he said, “No, never seen them before”. [16]

    16. Tcpt, 12 July 2019, pp 321-323.

  2. He denied ever touching the trigger of the Smith & Wesson revolver, or the handgrip of the Beretta pistol. He also denied touching the lid of the bucket in which the firearms were located, or the yellow towel found in it. However, he later said that he did open the lid of the bucket that he retrieved from the storage hatch on 2 August 2017. He denied that the black sock in which the Smith & Wesson revolver was wrapped belonged to him, and did not recognise the navy and white sock. [17]

    17. Tcpt, 12 July 2019, pp 323-324.

The secondary transfer issue

  1. The search of the premises was filmed, and the footage was in evidence. [18] The evidence was conveniently summarised in Seifeddine v R, [19] on which the following summary is based. The principal witness concerning the search, Sergeant Landrigan, explained that gloves were changed to obviate the risk of cross-contamination, and that he changed his gloves before going into the storeroom, as he is recorded stating in the video. However, after doing so, he touched a number of areas or items which others, in particular the applicant and Mr Seifeddine, might also have touched in the ordinary course of work at the café. Sergeant Landrigan agreed that he might have touched the corner of a bench (near where another detective was standing), and that it followed that the possibility of contamination was alive. He also agreed that he touched the handle of the storage hatch door with his left hand, and that whoever had touched that handle before him may have left some DNA on it. He agreed that he had then touched and opened the pickle bucket lid, when he said “find” to indicate that items of significance had been located. He then touched the camera, and took the bucket by its rim and removed it from the cavity by holding the handle, and also touched a cardboard box and his personal phone with the same gloves. He accepted that, still wearing the same gloves, he had “delved” into the bucket with both hands, and was using his hands to count how many firearms were in the bucket. 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), and remembered touching the two detachable box magazines also. He agreed that he then took hold of the back of a chair and dragged it over to the pickle bucket and that the pickle bucket was sitting on the chair when he removed the two magazines, still wearing the same gloves, and that in doing so he had touched other items including the towel. Only then (at 10:27) did he replace the gloves with fresh gloves.

    18. Exhibit B.

    19. [2021] NSWCCA 214 at [27]-[33].

  1. The sergeant then picked up the black sock containing the Smith & Wesson revolver and removed it from the bucket. He used the grip of the firearm handle to pull the sock around his hand without dropping the firearm, and kept his hand away from the trigger guard; he stressed that he did not go near the trigger of any firearm, so as to avoid the risk of an accidental discharge. Then, without changing his gloves, he placed the black sock into an exhibit bag, and picked up the revolver in order to unload it. He touched the revolver with the same gloves that he had used to hold the sock when removing the revolver from the sock.

  2. Ms Bate was cross-examined as to the possibility of secondary transfer, and this evidence was also summarised in Seifeddine v R. [20] She agreed that if someone had opened the door lock 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 that the longer a person spends in a particular location, the greater the likelihood that their DNA will be present there; and that the greater the duration of contact between a person and an object, the greater the likelihood that their DNA will be deposited. Frictional movement was also likely to increase the amount of DNA deposited: a hand turning a lock was more likely to leave DNA than mere static contact. Ms Bate said that a police officer touching a doorknob would involve pressure, because of the grasp required around the handle, but the extent of the friction involved would depend on how the officer turned the latch, and whether they moved their fingers along the latch.

    20. [2021] NSWCCA 214 at [35]-[39].

  3. Observing the video of the police officers undertaking the search, Ms Bate explained that when an officer had touched the lock with a latex glove, DNA of a person who had previously touched the lock could transfer onto the latex glove. She said that in order for secondary transfer to occur by that mechanism, there would have to be a large amount of the person’s DNA left on the handle, as the door latch would be the first point of transfer, the glove would be the second point, and then from the glove to another object (such as one of the firearms) would be a third step, and some DNA would be lost at each step. She nonetheless accepted that it was possible for DNA to be transferred through all three of those steps, if there were a sufficient amount of DNA in the first instance (on the door handle). Ms Bate was unable to say how many transfer steps there could be before DNA would no longer be able to be detected, there being too many variables – including the amount of DNA initially deposited, and the type of surface involved at each stage.

  4. Again with reference to the video footage, Ms Bate agreed that it was possible that Sergeant Landrigan had collected DNA on his latex gloves after touching the latch of the door and benches in the storage room; that if there were DNA on his gloves, it could possibly have been transferred onto the handle of the pickle bucket when he retrieved it from the wall cavity area, and: [21]

“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.”

21. Tcpt, 8 July 2019, p 118(15)-(23).

  1. Ms Bate accepted that there was a possibility of secondary transfer of DNA from Sergeant Landrigan’s unchanged glove to the socks, the cloths and the firearms. She also said that the procedure adopted for bagging the exhibits was not ideal, since it was possible that, in using the same set of gloves, Officer Hawkins had transferred DNA between the items.

  2. Towards the end of her evidence, the jury asked the following question: [22]

“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?”

22. Tcpt, 8 July 2019, p 130(12)-(15).

  1. Again, drawing on the Court’s summary of her response in Seifeddine, [23] Ms Bate, drawing on some “academic literature” to which she had reference, referred to a distinction between “porous” and “non-porous” surfaces, a table being “porous” and a latex glove “non-porous”. She said that when Sergeant Landrigan was removing the revolver from the sock, in a process which was undertaken carefully and took some time due to the risk of accidental discharge, it was likely that the sock rubbed on the surface of the revolver, and DNA from the sock could have transferred onto the revolver at a rate of up to 76%. She agreed that the porous sock was a very good receiver of DNA. She had earlier agreed that a sock that is worn for a day will have a significant amount of DNA due to extended exposure on the skin, body sweat, and skin friction. She also agreed that, in the context that the video showed one of the detectives touching the middle of the sock containing the revolver and with the same hand then touching the revolver, 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. She said that the sock over the revolver could exert some pressure, and 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. She accepted that in those circumstances – and depending on the conditions – there was potential for up to three quarters of the DNA material to transfer from the surface of the sock to the surface of the revolver. She 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.

    23. [2021] NSWCCA 214 at [42]-[45].

Ground 1: unreasonable verdict

  1. The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen,[24] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows:

“[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]–[14], the Court stated the approach to be adopted was that laid down in M v R (1994) 181 CLR 487; [1994] HCA 63 at 492–494, namely that the Court is required to make its own “independent assessment of the evidence”. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred”: see also MFA v R (2002) 213 CLR 608; [2002] HCA 53 at [59].

[85] As was pointed out by Hayne J in Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

[86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and 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: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]–[48].”

24. (2017) 94 NSWLR 476; [2017] NSWCCA 78.

  1. In considering this ground, an appellate court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. [25] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [26] These considerations are reinforced by the following observations of the High Court in The Queen v Baden-Clay (footnotes omitted):[27]

“65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court 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.””

25. M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13] (French CJ, Gummow and Kiefel JJ) (“SKA”); Dansie v The Queen [2022] HCA 25; (2022) 96 ALR 728 at [9] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

26. Atai v R [2014] NSWCCA 210 at [134] (R A Hulme J).

27. (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (“Baden-Clay”).

  1. Nonetheless, the concluding words of that passage, and the authority cited for it,[28] show that the ultimate question remains whether the appellate court 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. Baden-Clay does not detract from the propositions that:

  1. the appellate Court must make its own independent assessment of the evidence, and if after taking into account the primary responsibility of the jury in determining the question of guilt or otherwise and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside;

  2. in most cases a doubt experienced by an appellate Court will be a doubt which a jury ought also to have experienced, and only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt may the Court conclude that no miscarriage of justice occurred;

  3. while it is not sufficient to render a verdict unreasonable that a review of the evidence shows only that it was possible for a jury to reach a different conclusion, it is also not sufficient for a Court to conclude there was no miscarriage that there was evidence on which a jury could convict: if after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

    28. M v The Queen (1994) 181 CLR 487 at 494-5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; see also Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

  1. The applicant submitted that the Crown had failed to eliminate a reasonable possibility that his DNA found on the firearms was the result of secondary transfer. In particular:

  1. Sergeant Landrigan touched the handle of the door to the storage hatch, and then touched and opened the lid of the white bucket; it was possible that in doing so, the applicant’s DNA was transferred from the handle to the lid of the bucket;

  2. wearing the same gloves, Sergeant Landrigan then “delved” into the bucket with both hands to inspect the items, possibly touching every item in the bucket, before removing the two magazines. It was possible that the applicant’s DNA was transferred onto the two socks when Sergeant Landrigan reached into the bucket;

  3. wearing the same gloves, Sergeant Landrigan then picked up the black sock containing the Smith & Wesson revolver and, given the significant handling required to remove the revolver from the sock, it was possible that the applicant’s DNA was transferred to the revolver in that process;

  4. it was also possible that any DNA which had earlier been transferred to the navy and white sock by Sergeant Landrigan when reaching into the bucket was transferred to the handgrip of the Beretta pistol when it was removed from the sock;

  5. alternatively, it was possible that when using the same pair of gloves to bag each of the exhibits, Officer Hawkins transferred the applicant’s DNA between them.

  1. In the case of Mr Seifeddine (in respect of whom the DNA evidence implicated him as to the handle of the bucket and the rim of the lid, the trigger area of the Smith & Wesson revolver, the black sock in which the Smith & Wesson revolver was found, and the yellow towel found in the bucket), the result was that doubt remained as to his guilt so as to warrant his acquittal on appeal. I accept that if the case against the applicant rested on the DNA evidence alone, a reasonable possibility that its presence on the bucket, the socks, the weapons and the magazines, was attributable to secondary transfer was not excluded, and there would have remained at least a reasonable doubt as to the applicant’s guilt. But the presence of his DNA was not the only “circumstance” which contributed to the circumstantial case. As authorities to which reference will be made make clear, the evidence is not to be looked at in a piecemeal fashion, but all of the circumstances must be considered and weighed.

  2. Moreover, there are important differences between the two cases.

Counts 1 – 7: Presumption of Possession not rebutted

  1. The first – and very significant – difference between the two cases is that, because the applicant was the lessee of the premises and owner of the restaurant business, he – unlike Mr Seifeddine - incurred the burden imposed by Firearms Act, s 4A (in respect of the first seven counts, though not in respect of counts 8 and 9) of proving on balance of probabilities that he did not know or could not reasonably be expected to know of the presence of the weapons on the premises. If he did not discharge that onus, the jury was entitled to conclude that the firearms were in his possession, satisfying that element of the relevant offences. Firearms Act, s 4A, provides as follows:

4A Meaning of “possession” of a firearm – proof of possession

(1) Without restricting the meaning of the word “possession”, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that –

(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c) on the evidence before it, the person was not in possession of the firearm.

  1. The effect of this provision was explained in May v R:[29]

“The legislature has framed an offence in respect of which a person in occupation of premises where an unauthorised firearm is located will be criminally liable unless they can, on the balance of probabilities, discharge the burden provided in s 4A(1) of the Act. That subsection requires the occupier to establish on the balance of probabilities that they did not know or could not be reasonably expected to know of the presence of the weapon. This requires more than evidence from which a possible inference could be drawn. The accused must satisfy the trial court that he or she either did not know or could not be reasonably expected to know of the presence of the weapon.”

29. [2012] NSWCCA 250 at [32] (McClellan CJ at CL, Johnson and Bellew JJ agreeing).

  1. At the time of the search, the applicant told police that the CCTV cameras had been installed the day before. However, examination of the CCTV footage established that they had been activated on 2 August 2017, seven days earlier. The applicant’s version of the events of 2 August 2017 involves that:   

  1. the air conditioning stopped working on the afternoon of 2 August 2017, probably between 4:30 pm and 5:00 pm – the very day on which the CCTV cameras were installed;

  2. coincidentally, three men, two of whom were known to the applicant and one of whom was familiar with air conditioning, arrived at the café at about 9:00 pm;

  3. they went upstairs to the office, inspected the air conditioning control panel and downloaded the manual, at which time the friend mentioned something about a “capacitor”;

  4. coincidentally, the CCTV camera installed in the office which could potentially have captured the interactions between the three visitors and the applicant was faced downwards, so that what transpired was not recorded;

  5. there were multiple white pickle buckets in the storage hatch, and also coincidentally, the applicant had capacitors stored in one of them; and

  6. between 2 August and 9 August, someone removed all but one of those buckets – including the one which contained the air conditioner parts.

  1. The CCTV footage from the premises, taken from a number of cameras throughout the premises but including the camera directly above the storage hatch, recorded imagery continuously for the period of eight days between 2 August and the police search on 9 August 2017. It showed that six or seven workers entered the storage room during that period, but only two – the applicant on 2 August, and Mr Seifeddine on 8 August – approached the door to the storage hatch, directly below the camera, and accessed the storage hatch.

  2. The CCTV imagery shows that when the applicant accessed the hatch on 2 August, he took from it a white pickle bucket, which he later returned to it. When Mr Seifeddine accessed the storage hatch on 8 August, he brought with him a (different) yoghurt bucket, which he took away with him afterwards. It follows that the bucket which the applicant had handled on 2 August remained within the storage hatch.

  1. The applicant’s evidence that there were four white buckets within the storage hatch was necessary to explain how there could have been a bucket with the firearms in it, other than the bucket with air conditioner parts which the applicant handled on 2 August. However, the evidence of the search on 9 August established that there was only the one bucket there. The CCTV footage also excluded the possibility, proffered by the applicant, that someone else might have removed the other three buckets between 2 August and 9 August.

  2. It follows that the bucket which the applicant handled on 2 August was the same bucket as was found on 9 August. It also follows that there was no bucket containing spare parts such as the applicant claimed he handled on 2 August. The applicant’s version cannot be true.

  3. The three men who attended the premises on 2 August 2017 were identified and approached by police but declined to give a statement and were not called either in the Crown case or the defence case. While, as the jury were directed, no adverse inference could be drawn against the applicant from that fact, their absence leaves the applicant’s explanation uncorroborated, on a matter on which he bore the onus, namely rebutting the presumption of possession in Firearms Act, s 4A.

  4. In those circumstances, but particularly because of the analysis of the CCTV footage and the impossibility that there was more than one white pickle bucket in the hatch on 2 August, I am not satisfied on balance of probabilities that the applicant did not know and could not reasonably be expected to know that the firearms were in the premises. It follows that the jury was entitled to consider the firearms referred to in Counts 1 to 7 as being in the applicant’s possession, and to convict on those counts.

Counts 8 and 9: Circumstantial proof beyond reasonable doubt

  1. While that conclusion suffices to dispose of the appeal so far as concerns Counts 1 to 7 inclusive, it does not in respect of Counts 8 and 9 – the magazine charges – to which the presumption of possession does not apply. Disbelief of the applicant’s evidence as not reasonably possible does not suffice; though in those circumstances his evidence may be set aside, it remains for the Crown to satisfy the Court, beyond reasonable doubt, of the applicant’s guilt, on the basis of evidence that is accepted. [30]

    30. See Liberato v R (1985) 159 CLR 507 at 515; [1985] HCA 66 (Brennan J); De Silva v R (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler, Gordon and Nettle JJ); Frew v R [2022] NSWCCA 165 at [51] (Brereton JA).

  2. The principles applicable in a criminal case of proof of guilt depending upon circumstantial evidence were stated in Barca v R by Gibbs, Stephen and Mason JJ as follows:[31]

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v R.  To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v R; see also Thomas v R.”

31. (1975) 133 CLR 82 at 104; [1975] HCA 42.

  1. After citing that passage, the High Court said in R v Baden-Clay:[32]

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’. (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

32. (2016) 258 CLR 308; [2016] HCA 35 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

  1. In relation to Counts 8 and 9, the Crown case was left to the jury, as it was in Seifeddine, on the basis that it could convict only if satisfied that the DNA located on one or more of the items in the pickle bucket was deposited as a result of direct physical contact by the applicant, rather than by secondary transfer. However, that conclusion does not depend on the DNA evidence in isolation, but on the whole of the evidence.

  2. Given that the applicant returned the only white bucket to the storage hatch on 2 August after the meeting with the three men, and that between then and the search on 9 August the hatch was accessed only by Mr Seifeddine (on 8 August), the only hypothesis consistent with innocence is that the applicant returned a bucket which did not contain the firearms and magazines to the hatch on 2 August, that Mr Seifeddine placed the firearms and magazines in the bucket when accessing the hatch on 8 August, and that the applicant’s DNA was transferred to the bucket and some of the items in it on 9 August by secondary transfer in the course of the search.

  3. The first problem with that hypothesis is that, on the applicant’s version, there were capacitors in the bucket when he returned it to the hatch on 2 August, and what had since become of them is not apparent.

  4. The second is that, given it is known that the applicant handled the bucket on 2 August, the obvious explanation for the presence of his DNA inside the rim of the bucket lid is that he handled the bucket, whether or not any additional DNA might later have been deposited via secondary transfer.

  5. The third is that the presence of the applicant’s DNA on the Beretta pistol and the navy and white sock in which it was found is not satisfactorily explained by secondary transfer, because:

  1. the Beretta pistol was kept inside the navy and white sock;

  2. when Sergeant Landrigan placed his hand in the bucket, such that it could have come into contact with the sock, it would not have come into contact with the handgrip of the pistol;

  3. both Sergeant Landrigan and Officer Hawkins changed their gloves at 10:37, before handling the firearms;

  4. Officer Hawkins changed gloves again after handling the Fabrique Nationale pistol, before handling the Beretta pistol, and Sergeant Landrigan changed gloves again after handling the Smith & Wesson before assisting Officer Hawkins with the Beretta.

  1. While it is not impossible that Officer Hawkins – who had changed gloves before handling the navy and white sock – transferred from the sock to the handgrip of the pistol DNA that had previously been transferred to the sock from the storage hatch door handle by Sergeant Landrigan, the prospects of this process producing on the handgrip a sample to which the major contributor had the same profile as the applicant, when that was not the case in respect of any of the other samples, are remote, as is the possibility of secondary transfer when Officer Hawkins placed the items into exhibit bags. The reason for this was explained by Ms Bate, in the following testimony: [33]

“Q. Continuing on from that scenario and the last step in that process I have asked you about, was the revolver. Assuming that he then last touched the revolver, put it in the bag and moved to a different firearm, which is the Beretta, and that appears at R11 to R14, the results, what is the likelihood of R12 being as a result of transfer from the DNA being initially present on those gloves?

A. As you’re adding more steps there, it becomes even more unlikely that you would obtain a useable profile at the end. The other thing that’s to note about this profile is that R12 … has a major component from Mr Abraham whereas R6 had a mixture that had approximately equal, or not hugely dissimilar amounts of DNA from Mr Seifeddine and Mr Abraham. It would be very unlikely that where you’re transferring DNA that one person’s DNA would transfer preferentially. So if you had a mixture of two people’s DNA, you aren’t going to only get one of those people on an item that’s touched. Generally you would still get a mixture of the two people. So given that there is a number of transfer steps, or a number of items that this police officer has touched, if there was DNA from both Mr Seifeddine and Mr Abraham on his gloves at the beginning, I think it is unlikely, after he has touched that number of surfaces, that unless he then retouched a source of DNA from Mr Abraham or Mr Seifeddine, it is unlikely you would get a result that we’re seeing at the end in sample R12.”

33. Tcpt, 9 July 2019, p 176(10)-(33).

  1. Insofar as DNA might theoretically have been directly transferred to the sock from the Beretta as a result of the Beretta being inside the sock, the hypothesis would require that the applicant wore or substantially handled the navy and blue sock (which he did not recognise), discarded it somewhere on the premises, and that it was later used by Mr Seifeddine, unseen by any CCTV camera, to envelope the Beretta and place it in the bucket. This faces the considerable obstacle that the applicant did not recognise the sock as his.

  2. Having regard to the DNA evidence, and making due allowance for the circumstance that the possibility of secondary transfer has not been entirely excluded, but also having regard to the CCTV evidence, and in particular that there was only one white bucket in the hatch, that the applicant returned it to the hatch after the visit by the three men on 2 August, that it was not thereafter removed from the hatch, and that the events of the meeting on 2 August were not captured on CCTV because the camera was angled down; to the applicant’s apparent lack of concern upon discovery of the firearms and his explanation of it in cross-examination; and to the inconsistency of sample R12 (to which he was the major contributor) with it being the result of secondary transfer when he was not the sole major contributor to the other samples, I am not left with a reasonable doubt that the presence of his DNA on the Beretta was not the result of secondary transfer.

  3. Once that conclusion is reached, the presence of all three firearms and two magazines collocated in the hatch in a storage room in his restaurant, on premises of which he was the lessee, in a bucket which he had removed from the hatch at the time of the 2 August visit and subsequently replaced, leaves me with no reasonable doubt as to his guilt. The accumulation of improbabilities necessary to allow any hypothesis consistent with innocence is such that I am satisfied that there is no rational hypothesis consistent with innocence.

  4. It follows that it was open to the jury also to be satisfied beyond reasonable doubt that the applicant was guilty of Counts 8 and 9, as well as the earlier counts.

Conclusion

  1. Leave to appeal should be granted, but the appeal dismissed.

  2. WILSON J: I am grateful for the summary of the facts given by Brereton JA, and the extracts of some of the more significant evidence extracted in his Honour’s judgment.

  3. Like his Honour, having assessed all of the pieces of circumstantial evidence upon which the Crown relied at trial, and noting the application of s 4A of the Firearms Act 1996 (NSW) to counts 1 – 7, I am not left with a reasonable doubt as to the applicant’s guilt of the charges. The verdicts returned by the jury were open on the evidence.

  4. I agree with the orders proposed by Brereton JA.

  5. CAVANAGH J: I too have received the judgment of Brereton JA and am grateful for his Honour’s extensive analysis. On an appeal such as this, it is the function of the Appeal Court to examine the whole of the record so as to assess whether the jury ought (not might) to have had a doubt as to the guilt of the appellant (M v The Queen (1994) 181 CLR 487; [1994] HCA 63). I have carried out my own independent assessment of the whole of the record. I do not consider that the jury ought to have had a doubt about the guilt of the appellant in respect of any of the counts of which he has been convicted. As explained by Brereton JA, this case is quite different from Seifeddine v R [2021] NSWCCA 214, at least in part, because of s 4A of the Firearms Act 1996 (NSW). Further, also for the reasons set out by Brereton JA, the facts and circumstances giving rise to Counts 8 and 9 are not such that the jury ought to have had a doubt as to the guilt of the appellant.

  6. I thus agree that the appeal should be dismissed.

**********

Endnotes

Decision last updated: 22 November 2022

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Atai v R [2014] NSWCCA 210
Barca v the Queen [1975] HCA 42
Barca v the Queen [1975] HCA 42