Barekzai v WA Police
[2024] WASC 381
•17 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BAREKZAI -v- WA POLICE [2024] WASC 381
CORAM: TOTTLE J
HEARD: 21 JUNE 2024
DELIVERED : 17 OCTOBER 2024
FILE NO/S: SJA 1101 of 2023
BETWEEN: IZATULLAH KHAN BAREKZAI
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1101 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE BUTCHER
File Number : PE 7513 of 2023
Catchwords:
Criminal law - Single judge appeal - Appeal against conviction - Whether magistrate failed to approach the fact finding on the basis that the appellant was presumed to be innocent - Whether magistrate failed to direct himself as to the Liberato principles - Whether magistrate reversed the onus of proof by drawing negative inferences from the appellant's evidence - Whether magistrate impermissibly drew an adverse Weissensteiner inference from the appellant's evidence - Whether magistrate erred by misconstruing the evidence relating to a possible secondary transfer of the appellant's DNA - Whether the magistrate erred by finding that DNA evidence alone was sufficient evidence in the circumstances to establish appellant's guilt beyond reasonable doubt - No error shown - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S M Whybrow SC |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | Karrie Louden Barristers and Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CHJ v Taylor [2019] WASC 435
De Silva v The Queen [2019] HCA 48
Liberato v The Queen (1985) 159 CLR 507
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Weissensteiner v The Queen (1993) 178 CLR 217
Wells v The State of Western Australia [2017] WASCA 27
TOTTLE J:
Introduction
On 20 November 2023 the appellant was convicted after a trial of one count of indecent assault contrary to s 323 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code). A term of imprisonment of nine months suspended for nine months was imposed. The appellant was also charged with stealing the complainant's belongings contrary to s 378 of the Criminal Code but he was acquitted of that charge. The appellant seeks leave to appeal against his conviction for indecent assault.
The only issue at trial was identification. The appellant's DNA was found on the complainant's underwear and on her external genitalia. The prosecution case depended on satisfaction beyond reasonable doubt that the appellant's DNA was transferred by him to the complainant's underwear and to her body when he assaulted her. The assault took place when the complainant was sitting in the passenger seat of a motor vehicle.
The appellant did not give evidence at trial. The appellant participated in a police interview (a video recording of which was tendered) in which he denied being present or having anything to do with the offending. In the interview the appellant said his occupation involved him maintaining and cleaning vehicles used by Uber drivers. The appellant's trial counsel advanced the hypothesis that the presence of the appellant's DNA on the complainant's underwear and on her body was a consequence of a secondary transfer of DNA. Counsel contended it was possible that during the appellant's work cleaning vehicles his DNA had been transferred onto interior surfaces of the vehicle in which the assault took place. It was contended it was also possible that such a direct transfer of DNA was followed by a secondary transfer onto the complainant's hands and external clothing followed by a possible further transfer onto her underwear and her body. The appellant's counsel contended the possibility of secondary transfers of the appellant's DNA in this manner was a reasonable hypothesis consistent with innocence which had not been excluded by the prosecution.
The learned magistrate rejected the secondary transfer hypothesis advanced on the appellant's behalf. In effect his Honour held the hypothesis had been excluded in relation to both the presence of the appellant's DNA on the complainant's underwear and on her genitalia.
In amended grounds of appeal the appellant advances six grounds. The appellant submits the effect of these grounds is that he suffered a miscarriage of justice. Four of the grounds are concerned with the magistrate's processes of reasoning and two are concerned with his Honour's assessment of the DNA evidence. In summary the grounds assert: (a) a failure to approach fact finding on the basis of the presumption of innocence (b) a failure by the magistrate to give himself a Liberato direction (c) the magistrate reversed the onus of proof by drawing negative inferences (d) the impermissible drawing of a Weissensteiner inference (e) the misconstruction of evidence in relation to the possibility of a secondary transfer of DNA and (f) an error in finding that the DNA evidence alone was sufficient to establish beyond reasonable doubt that the appellant was the offender.
For the reasons given below I refuse leave to appeal in respect of grounds (a) and (b). I would grant leave to appeal in respect of grounds (c), (d), (e) and (f) but would dismiss the appeal in respect of each of those grounds.
An overview of the evidence
The complainant gave evidence at trial as did Constable Costa, one of the two police officers who attended her apartment some hours after the assault. A detective from the Sexual Assault Squad, Detective Senior Constable McSweeney, also gave evidence. Ms Julie Marukami, a senior forensic scientist, gave evidence about the DNA samples.
The complainant's evidence was not the subject of any material challenge. The magistrate found her to be a credible and honest witness and he recited the material parts of her evidence without criticism or qualification. His Honour is to be taken as having made findings in accordance with the complainant's evidence other than in respect of her evidence concerning the length of the hair of the man who assaulted her. The following account of the factual background is based substantially on the complainant's evidence.
The factual background
In November 2020 the complainant was living in Stirling Street, Perth. On the evening of 21 November 2020 she consumed four full-strength beers at home before walking to the Court Hotel at about 9:30 pm.[1] The walk took about 15 minutes. When the complainant arrived there was a queue. She entered the venue about 30 to 45 minutes later between 10:30 pm and 10:45 pm.[2] She was wearing a black jacket, black top, black tight fitting skinny leg jeans with a buckle and black underwear. She was carrying a bag containing her keys, her phone and other items.[3]
[1] Transcript of primary court dated 16 November 2023, 11 - 12.
[2] Transcript of primary court dated 16 November 2023, 12, 18.
[3] Transcript of primary court dated 16 November 2023, 12.
While at the Court Hotel the complainant consumed four full‑strength beers and a shot of Galliano. She was dancing and generally having a good time. The last thing that she remembers is leaving the ladies' bathroom to go upstairs looking for a man that she had met that evening. The complainant said that was when, 'the blackout started'.[4] The complainant was shown various CCTV screenshots in which she could readily identify herself leaving the Court Hotel, walking into a McDonalds and walking down Stirling Street but she had no recollection of those events.[5]
[4] Transcript of primary court dated 16 November 2023, 13.
[5] Transcript of primary court dated 16 November 2023, 14 - 15.
The complainant's next memory of the night was sitting in the passenger seat of an unfamiliar vehicle. She had no recollection of how she came to be in the vehicle.[6] A man was in the driver's seat with his penis exposed and he was leaning over so he was partially on top of her. He was 'groping' her around her genitalia, her chest and her breasts.[7] The complainant had no recollection of the man's hands being under her clothes.[8] She did not feel her bottom was touched as the man was groping her.[9]
[6] Transcript of primary court dated 16 November 2023, 15.
[7] Transcript of primary court dated 16 November 2023, 16.
[8] Transcript of primary court dated 16 November 2023, 25.
[9] Transcript of primary court dated 16 November 2023, 26.
The complainant described the man as wearing a white T-shirt. She said he had a large stomach, was wearing blue jeans and had long hair down to his shoulders. The complainant said that he was in his forties and appeared of 'European-type dark skin', and although she was not sure, was possibly of Indian ethnicity.[10]
[10] Transcript of primary court dated 16 November 2023, 16 - 17.
The complainant tried to fight the man off. She asked for her bag. The man replied, 'Let's go look for it'. The man got out of the vehicle and went to the park adjacent to where the vehicle was parked. The man appeared to be looking for the complainant's bag. The complainant remained in the vehicle to look for her bag. While the complainant was still in the passenger seat the man returned to the vehicle. Eventually the man pushed the complainant out of the car.[11] Although the evidence was a little unclear it appears the car was moving when the complainant was pushed out of it and she was dragged a few metres down the road before letting go of the vehicle. While the complainant was on the ground she looked up and saw a white vehicle driving off.[12]
[11] Transcript of primary court dated 20 November 2023, 128.
[12] Transcript of primary court dated 16 November 2023, 17- 18.
The complainant walked back to the apartment block in which she lived. She was unable to enter her own apartment as her keys were in her bag that was missing. At about 5.00 am a neighbour let her in to his apartment and she had a 'quick nap on his couch'. Later in the morning she gained entry into her apartment by climbing onto her balcony from a neighbour's adjacent balcony.[13] She used a screwdriver to open the balcony door. The complainant telephoned her mother and the police.[14]
[13] Transcript of primary court dated 16 November 2023, 18.
[14] Transcript of primary court dated 16 November 2023, 30.
Constable Costa, accompanied by Acting Sergeant Johnson, arrived at the complainant's apartment at about 9.40 am.[15] Constable Costa spoke with the complainant and then took photographs of her. The photographs included photographs of the complainant in the clothing she was wearing when assaulted and photographs after she had changed her clothing.[16] Constable Costa did not think that the complainant was wearing gloves when she changed out of the clothing that she had been wearing.[17] At the direction of detectives from the Sexual Assault Squad Constable Costa seized the complainant's clothing, her jeans, her top and her underwear (a G-string). Constable Costa put the three items of clothing into a bag and provided the bag to Detective Senior Constable Still, an officer from the Sexual Assault Squad who accompanied Detective Senior Constable McSweeney.[18] Detective Senior Constable Still separated the clothing and put each item into a separate evidence bag.[19] When it came to be examined it was apparent that the G-string was inside out.[20]
[15] Transcript of primary court dated 16 November 2023, 53.
[16] Transcript of primary court dated 16 November 2023, 54.
[17] Transcript of primary court dated 16 November 2023, 57.
[18] Transcript of primary court dated 16 November 2023, 65.
[19] Transcript of primary court dated 16 November 2023, 65.
[20] Transcript of primary court dated 16 November 2023, 41.
Detective Senior Constable McSweeney handed the complainant a 'preliminary forensic kit' and asked the complainant to provide a vulva wipe specimen and a 'first void' urine specimen.[21] The Detective provided the complainant with gloves and observed that she was 'gloved up' before handing her the materials for the vulva wipe specimen.[22] The complainant provided the Detective with the specimens requested and they were submitted for forensic testing together with the complainant's clothing.[23]
[21] Transcript of primary court dated 16 November 2023, 66 - 67.
[22] Transcript of primary court dated 16 November 2023, 67.
[23] Transcript of primary court dated 16 November 2023, 67.
The complainant did not recall going to the toilet or having any other reason to touch her genitalia between the time she was pushed out of the vehicle and the forensic tests.[24]
[24] Transcript of primary court dated 16 November 2023, 31.
The appellant's evidence
The appellant was arrested and interviewed on 1 June 2021. The interview was conducted through an interpreter. The interpreter was not present in the interview room. He attended by telephone.[25] This meant that some of things said by the interpreter were difficult to hear and understand.
[25] Transcript of primary court dated 16 November 2023, 77.
The appellant categorically denied committing either offence. Unsurprisingly the appellant was unable to account for his whereabouts on 22 November 2020. The appellant said:[26]
I'm not involved in this. I'm not aware of something. I'm not aware of these things.
I can't recall something that happened seven months ago.
[26] Exhibit 8, 14:24 ‑ 15:57.
In response to questions about his occupation the appellant told the police that he owned or operated about 30 to 35 vehicles that were used as Ubers. He said he owned a white Toyota Camry that was registered in his name (at the trial there was evidence that he also owned a white Toyota Corolla).[27] Other cars were registered in the name of the appellant's business.[28]
[27] Transcript of primary court dated 16 November 2023, 78.
[28] Exhibit 8, 18:21 ‑ 23:31.
The appellant was asked about his working hours and was then asked the question 'And what do you do?'. The answer given through the interpreter was: 'he's ah, he's sorting out mechanical problems or cleaning, you know, but there is another person who is [indistinct]'. No other reference was made to cleaning vehicles during the interview.[29]
[29] Exhibit 8, 17:38 ‑ 18:14.
The appellant said that he did not pick up passengers. He said he sometimes used the vehicles to get home when they were not being used by drivers.[30]
[30] Exhibit 8, 25:08 ‑ 25:50.
When asked about the registration details of the vehicles in his name the appellant requested access to his mobile phone on which the details were kept. The appellant readily gave his 'Pin' access code to the interviewing police officer.[31]
[31] Transcript of primary court dated 16 November 2023, 78.
When asked whether he had ever picked up a woman or had a woman in one of his cars on a Saturday night, the appellant responded, 'I don't remember'. He said that he would sometimes go into Northbridge to check on the drivers that had leased his cars. When asked about how he knew which cars were his, the appellant said he could remember his vehicles. He could not say whether he was in Northbridge on the night of the offending, but he denied offending against the complainant stating that it was '100 per cent impossible' that his DNA would be located in her vagina[32] (in the interview it was mistakenly put to the appellant that his DNA was located on the complainant's vagina rather than her vulva).
[32] Exhibit 8, 41:01 ‑ 41:32.
The appellant tendered a bundle of photographs downloaded by the police from his mobile phone which included a photograph of him bearing the date 12 October 2020 and which showed him with short hair. In June 2021 the appellant had short hair. The magistrate accepted that in October 2020 the appellant had short hair.[33]
[33] Transcript of primary court dated 16 November 2023, 124, 134 - 135.
The forensic evidence
Relevantly, Ms Murakami's evidence was as follows.
The G-string was examined with an alternate light source that gave a negative reaction for semen.[34]
[34] Transcript of primary court dated 16 November 2023, 35.
Four separate samples of the G-string were then submitted for DNA testing. The samples were obtained by using a tape lift and were taken from the outer front, outer back, inner front, and inner back.[35]
[35] Transcript of primary court dated 16 November 2023, 35.
A mixed DNA profile was detected on each of the four samples. The results showed that:[36]
(a)The outer front sample was 23,000 times more likely to occur if the contributors were the complainant and the appellant.
(b)The outer back sample was 21,000 times more likely to occur if the contributors were the complainant and the appellant.
(c)The inner front sample was 330 times more likely to occur if the contributors were the complainant and the appellant.
(d)The inner back sample was 16 million times more likely to occur if the contributors were the complainant and the appellant.
[36] Transcript of primary court dated 16 November 2023, 36 - 37.
A single source Y-chromosome DNA profile was recovered from the vulva wipe that was 550 times more likely to occur if the appellant was the donor as opposed to an unknown male of the Western Australian population.[37] The vulva wipe also tested negative for the presence of semen.[38]
[37] Transcript of primary court dated 16 November 2023, 37 - 38.
[38] Transcript of primary court dated 16 November 2023, 37.
The complainant's neighbour, who had let her into his apartment at 5.00 am on 22 November 2020 and on whose couch she had 'a nap' was excluded from all the DNA samples.[39]
[39] Transcript of primary court dated 16 November 2023, 52.
The complainant's urine sample disclosed the presence of benzodiazepine. The complainant denied taking any drugs containing benzodiazepine and, based on the magistrate's observations about the complainant's credibility and the reliability of her evidence generally, his Honour must be taken to have accepted that denial. Inferentially, it appears that the magistrate accepted that the explanation for benzodiazepine in the complainant's system was that one of her drinks had been spiked.
In the context of the evidence to the effect that the mixed DNA profile found on the outer front surface of the G-string sample was 23,000 times more likely to occur if the contributors were the complainant and the appellant. In cross‑examination Ms Murakami was asked about the evidentiary value of likelihood ratios between two and one million. Her evidence was as follows:[40]
So we know, as the statistic trends lower, that there are two possible explanations for that particular result. So it may be that there is just minimal information in the evidence profile, and so what you're seeing is that there's less information and so that statistic is reflective of the fact that there's little information to compare to. The alternative is that the individual we're comparing hasn't actually donated their DNA to that evidence profile, but rather they, by chance, share elements in their reference profile that are present in the evidence profile. So they're not true contributors, however, by coincidence, they yield statistics in favour of contribution. So we call these coincidental statistics. We know that the majority of them tend to fall between two and 100. So it's kind of in the 95 percent of all coincidental links will fall in that range. However, we've seen them range up to, well, 730,000. So we have this conservative threshold, if you like, of a million, where below which we would consider that there are two alternate explanations for those statistical findings.
No. That has been explained very well. And so 23,000 that is, obviously, within the range you've seen, up to 737,000 where it can be not reliable? - - - Correct. It could - - -
I'm using the colloquial. What term would you use instead of reliable? - - - - It may not be reflective of true contribution.
[40] Transcript of primary court dated 16 November 2023, 39.
Ms Murakami was cross-examined about the evidence of the mixed DNA profiles found on the outer back and inner front of the G‑string, 21,000 and 330 respectively. The cross-examination was as follows:[41]
So does that give you - are you able to say anything about a number so low as 330, when compared with 21,000, 23,000, 700 and - - - ? - - - Again it's - it's reflective of the fact that there's very little information in that profile that's not attributed to [the complainant]. So there is a whole lot of [the complainant's] DNA there, and there's a small amount of a male individual present on the G-string. And so the low statistic is reflective of how little information that is there.
[41] Transcript of primary court dated 16 November 2023, 40.
Ms Murakami's evidence about the mixed DNA profile found on the inner back of the G-string was as follows:[42]
So as far as the contribution, are you able to comment on what 16 million - it's above 16 million. Does that say anything about the amount of DNA that was there? - - - It is reflective of - of less DNA being present. So we, obviously, expect a full profile that is of good quality to yield a statistic in the range of the 100 billions, or greater than that.
Yes? - - - So the fact that this particular statistic falls in the low millions is reflective of the fact that there is less information present in that profile.
And so that less information being present, that means when you did the take lift for that fourth sample, that fourth result, less DNA information, as you said, was on that tape lift? - - - Less - just less DNA associated with the - the second individual in comparison to [the complainant]. And so what tends to happen when you have a large amount of one person's DNA and a small amount of another is that that larger amount tends to almost overwhelm the smaller amount. And it - it does make it difficult to then derive a strong conclusion from those profiles.
[42] Transcript of primary court dated 16 November 2023, 41.
Ms Murakami was cross-examined extensively about the possibility of a secondary transfer of DNA.[43]
Now, in relation to indirect transfer, it's possible, isn't it, indirect transfer for DNA to move from a surface to another surface? - - - It can be transferred from one surface to the next. Yes.
And I want to put a scenario to you, and you can tell me if this is possible. Can DNA be transferred from a car seat to a pair of jeans? - - - Yes. So, generally, indirect transfer is - is linked to certain factors. So that - there are certain factors which make indirect transfer more likely than not. So we talk about the source of DNA. So if we have a richer source of DNA, so the bodily fluids of the semen, saliva and blood, as opposed to the poorer sources, which are generally associated with skin cells - so if it's a richer source of DNA, indirect transfer is more likely than a poorer source of DNA. And that's because the transfer of DNA to one surface to the next is, generally, quite inefficient. So if we're talking about your example from the car seat, not all the DNA that's in that car seat can be transferred onto the jeans. Some of it will still be retained in the car seat.
Yes? - - - So if you have only a small amount of DNA on that car seat, and you only transfer an even smaller amount of DNA onto the jeans, there will be a loss of yield between the car seat to the jeans, and it becomes quite difficult for us to detect that DNA. We've talked about the surface already. So in terms of, kind of, optimal conditions for indirect transfer to occur, we talk about DNA being transferred onto a smooth, glossy surface, and then subsequently onto a rough, abrasive surface. Again, because that DNA is easily removed from the smooth, glossy surface, and more readily retained on the rough, abrasive surface. So if we go back to the example of the seat to the jeans, it becomes more difficult for that DNA to be removed from that seat. So it's less likely than if it was on, say, the car window, for instance.
Yes? - - - The number of transfer steps will influence whether that indirect transfer event occurs. So if the scenario involves multiple steps, at each step there's, generally, a loss of DNA, so the likelihood of it occurring decreases. And the time between those transfer steps. So the longer that time period where the DNA is held on the car seat, and then subsequently transferred onto the jeans, the less likely that transfer is to occur, because either the DNA can break down or it can be transferred elsewhere. And then, finally, we always need that source of DNA to come in direct contact with the surface it is being transferred to. And then the amount of time and friction associated with that contact will dictate whether that indirect transfer event occurs.
[43] Transcript of primary court dated 16 November 2023, 45 - 46.
Ms Murakami was cross-examined about the significance of the number of possible transfer events.[44]
And also you said that by the number of transfer events, Doctor, will mean that there will be less DNA able to be transferred with each event; That's correct.? - - - Correct. We - we did explain it. We talk about paint where someone puts their finger in paint and as you take additional dabs of that same paint you will see less and less of it being transferred. It's a visual way of thinking about how DNA is transferred.
That's right. So if there is three transfers, less, less, less? - - - Absolutely.
So if someone has sneezed or coughed on a door handle of the passenger door handle of the car, and that person touched that door handle, and then put their hand in their jeans, and were to take off their pants to, say, go to the bathroom, or just take them off, there is a likelihood that they would transfer that DNA to the inside of their jeans or underwear? - - - They could do. So, again, if the source is transferred to their hand and then that same area is then - comes in contact with the other inside of the jeans or their underwear, then, yes, potentially, it can be transferred there.
And that's also not far-fetched or fanciful, is it? It's, like, a real possibility that that indirect transfer has happened? - - - Yes.
And also if that person - say that person had also coughed or sneezed, or had left a lot of skin cells on the front passenger seat of the car, and someone was to sit on that car, and touch that with their hands, if they then used their hands to take off their jeans and their G-string, or to pull their pants back up, that would also be a very possible way to transfer that DNA onto the inside of their jeans and their underwear? - - - That could be a mechanism by with which that DNA could be transferred to the underwear. Yes.
That's also not far-fetched or fanciful, is it? That's quite a possible mechanism of transfer? - - - It it could happen. Yes.
[44] Transcript of primary court dated 16 November 2023, 47.
Ms Murakami was cross-examined about the possibility of secondary transfer of DNA onto a vulva wipe. The cross‑examination was as follows:[45]
If someone had touched either the door handle or the seat of the car, or something, you said, a window surface, or something that had someone's DNA on it, and then they put it on the inside of their underwear, which was a possible transfer - - -?- - - I - - -
You agree that's a possible indirect transfer?- - -Yes.
If then when they went to do their own vulva gauze - or say they did it within a few hours, if they took off their underwear immediately before doing the vulval gauze, which they handled, would that also be a potential way to transfer DNA onto the vulval gauze? - - - By their hand onto the gauze, as opposed to their - from their vaginal area to the gauze?
Yes?- - - Potentially.
And if someone was doing it by themselves, not a PathWest (indistinct) but someone just doing it themselves? - - - Potentially. Yes. So if - if they're not wearing [gloves] and that had that source of DNA, then that could be transferred again to the gauze wipe.
And if they were wearing gloves, it's kind of the same reason you change gloves, though, isn't it, Doctor? Even if they had put on gloves beforehand, and if they went into their bathroom and they took off the underwear, their own underwear, and then handled the gauze wipe, their DNA could still be transferred from the glove to the gauze wipe, couldn't it? - - - If they were wearing gloves?
If they were wearing gloves and they didn't change the gloves?- - - It - it - yes, it could. And you would expect there to have to be a - a relatively large amount of DNA there for them to pick that up and transfer it, though.
Okay. So you would expect a relatively large amount of DNA for that to happen? - - - Only because what we're seeing is a -a targeted area that was sampled for DNA, in terms of the vulva gauze wipe. And so if the individual was wearing gloves and - you're - you're saying that source of DNA came from her underwear. So that was a secondary transfer onto her underwear. So then that DNA has to then get onto her gloves, and then again off her gloves onto the vulval gauze wipe. So for that to happen there's a number of transfer steps from the original source of DNA. So the original source of DNA would have had to have been quite strong for it to be transferred onto her hands, then onto her underwear, and then from her underwear onto a set of gloves, and then from a set of gloves onto the gauze wipe.
[45] Transcript of primary court dated 16 November 2023, 48 - 49.
In re-examination and in the context of her evidence about the secondary transfer of DNA, Ms Murakami was asked about the likelihood of 'seeing [the appellant's DNA] in the four locations that you have tested on the victim's underwear'. Ms Murakami's response was as follows:[46]
It becomes - it's difficult to actually quantify. I - I don't think each of those samples is necessarily independent of one another, especially given the underwear was received inside out. So we know there has been, potentially, some transfer from the inside to the outside at some point. But it - it would suggest that there is a reasonable amount of - of DNA from the male individual, on multiple areas of that G-string.
Okay. But is that more consistent with a person touching that area, or more consistent with secondary transfer from a victim touching the seat or touching a door handle, and then removing the underwear later? - - -Again, I can't quantify it. So I - I can't say something is more likely than the other when it comes to comparing direct versus indirect transfer. I would suggest if they were independent samples then you have four independent indirect transfer events. But I don't think each of those samples necessarily is independent of one another. Potentially, you have, at least, two independent, indirect events, which becomes less likely than one, for instance. But if that's - I don't think I can say whether it's less likely than direct transfer.
[46] Transcript of primary court dated 16 November 2023, 51.
In re-examination Ms Murakami was also asked, in effect, whether the likelihood of secondary transfer of DNA was affected by what the complainant did between arriving at her neighbour's apartment and the police arriving. The re-examination was as follows:[47]
Now, evidence was given that the victim arrived home at 5.07 am, slept on the couch for a couple of hours, and then eventually met with police at 9.30 am. So, roughly, we're talking about four and a half hours before the clothing is removed and seized. What then is the likelihood of secondary transfer from sleeping on the couch two hours, and then another two and a half hours later removing the clothing and giving it to police? - - - Obviously, if she washed her hands, that's going to impact on the amount of DNA available on her hands. If her hands came in contact with other surfaces, then the DNA that was on her hands maybe transferred to those other surfaces in that four hours. In terms of the DNA persisting on her hands for four hours, there is no issue with DNA persisting on her hands for four hours.
Okay? - - - It's - it's just whether it was then transferred to other surfaces during that time period that would influence the indirect transfer scenario.
Okay. Let me try this again. Evidence was given that she arrived home at 5.07 am, went to sleep on her neighbour's couch for a couple of hours. When she awoke she had to jump the balcony to get into her house, because she didn't have her keys anymore, and used a screwdriver to break into her unit. She then used her work phone to ring her mother, and then, eventually, the police, and then at 9.30 am, police arrived. So would you agree that there are a lot of things being touched, at this stage? - - - It does appear that way. So when we talk about coming in contact with some of those surfaces, there's also the possibility that there is other what we call background DNA on those surfaces. So if she had the DNA of the individual on her hands, what she may also have found is that then she had DNA from other individuals from touching all these other surfaces. And what we end up with, sometimes, is quite complex, mixed DNA profiles, if that's the case. So that could then compounds those issues. But, yes, in terms of her coming in contact with other surfaces, it does then provide opportunity for any DNA that is present on her hands, to be transferred elsewhere.
[47] Transcript of primary court dated 16 November 2023, 51 - 52.
The magistrate's reasons
The trial concluded on 17 November 2023 and the magistrate delivered oral reasons for his decision to convict the appellant of the indecent assault offence on 20 November 2023.
The magistrate began his reasons by directing himself in orthodox terms as to the presumption of innocence, the onus and standard of proof, the need to avoid speculation and the necessity to put any feelings of sympathy to one side. His Honour also directed himself as to the appellant's right to silence and that the fact the appellant did not give evidence could not be used to fill any gaps in the prosecution case. His Honour reminded himself of the dangers involved in identification evidence and gave himself general directions about the credibility and reliability of witnesses. His Honour noted the prosecution case was a circumstantial case and directed himself in relation to inferential reasoning. His Honour reminded himself that in a circumstantial case a verdict of guilty will not be open unless the circumstances are such as to be inconsistent with any reasonable hypothesis other that the guilt of the accused and that 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 allow one to draw.
In the context of the magistrate's warning to himself about identification evidence his Honour said:[48]
I must draw my attention to the witnesses in relation to [the identification evidence]. Those witnesses are as follows: firstly, the DNA evidence. It's submitted on behalf of defence counsel on the basis for the defence that secondary transfer or indirect transfer is an explanation in relation to that evidence. Secondly, the reliability of the complainant's evidence. That's multifaceted. Firstly, the complainant was affected by alcohol and benzodiazepines on the evening. That has the ability to impact on her reliability as a witness.
She also made no positive identification of the accused, but rather a general description of a car that he was driving and his physical appearance. There was an incorrect description of the length of his hair and it was said that his hair was long and shoulder length or slightly below shoulder length when, in fact, photographs taken from his phone from June or October that year show him with short hair. Also, in relation to the passage of time since the offence the occurred, these allegations of the offence were over three years ago: November 2020. I will come back to the issue of identification; this is an important part of the trial.
[48] Transcript of primary court dated 16 November 2023, 124.
I interpolate that the emphasised passages in this extract of his Honour's reasons are relied on by the appellant to make good the first ground of appeal, that is, that the magistrate failed to approach the fact finding on the basis the appellant was presumed to be innocent.
The magistrate summarised the complainant's evidence as set out in [9] to [17] above. The magistrate referred to and summarised the evidence of Ms Murakami, Constable Costa and Detective Senior Constable McSweeney.
The magistrate summarised what had been said by the appellant in the police interview as follows:[49]
When asked where he was on the date of the alleged incident, the accused said that he can't remember what happened seven months ago or a week ago. He said that he works for a mechanical repair shop in Kenwick. He rents vehicles. He has got about 30 or 35 cars either in his name or under a business name. In his name, there's about two or three cars. He says that he keeps records of all his drivers, the day they come in and records day, time, where they come in and where they go out. Sometimes he uses the cars to get places.
He can't remember if he used a car on the day of the alleged assault. I note that only he would have that information. He also gave evidence about how often he may come in to Northbridge. He says in his evidence or in his police interview when asked how often he comes into town, he says he checks on his drivers sometimes; once [every] month or two. It's usually in the city of Perth or Northbridge most of the time. When asked in relation to how he would know what his cars were or which were is drivers, he says he knows what his cars are.
I note in relation to that that when asked about which cars he owned personally, he had to resort to his phone and check his phone in order to confirm the details of the vehicles that he owned personally. It seems unlikely or implausible that he would know the 30 to 35 cars that he and his drivers would be using at any given time such that he could meaningfully check on them whilst they come into Northbridge, particularly if he had to resort to his phone to check the two cars which are registered in his name.
He essentially denied the offending, said that he couldn't remember. In relation to his denials, it was most strongly put when there was a suggestion that he - that the lady - that the complainant had jumped out of a car, 'No, it's impossible. How could you push someone out of a moving car?', he said.
[49] Transcript of primary court dated 16 November 2023, 131 - 132.
Next the magistrate set out his findings on credibility. Of the complainant his Honour said:[50]
[I] found the complainant to be a credible and an honest witness. She gave answers which were sometimes against her interest, including the amount of alcohol that she consumed, her lack of memory in relation to certain things. She came across as a good witness. Her demeanour on the witness stand was good. She didn't exaggerate her answers.
She didn't speculate in relation to her answers and she was very careful with her evidence including when she was giving a description of the ethnicity of the person who allegedly attacked her. She went as far as to apologise for potentially being racist when she described the person as Indian and not of a darker complexion.
[50] Transcript of primary court dated 20 November 2023, 132.
The magistrate made the following observations about the appellant's credibility:[51]
In relation to the evidence of the accused, the accused elected not to give evidence. However, he relied on the statements that he made in his video interview with the police.
I have to remember that the statements in the video interview aren't sworn evidence, and it's my task to attach the appropriate weight to that evidence. I found the accused's evidence not to be compelling. He often said that he couldn't remember certain things even though they weren't that far in time from when he was being interviewed. There seemed to be internal inconsistencies with his - in relation to his account and implausible matters put forward by him including in relation to him going to check on his cars in Northbridge once or twice a month.
The accused didn't give a great deal of explanation in relation to the theory put forward in his defence. As far as he gave evidence in the video interview, it was basically that he cleaned and repaired a number of cars. He didn't give evidence about any specific vehicles, about whether he may have coughed or sneezed or done anything to leave any DNA in any of these vehicles. There was no evidence in that regard. In relation to his denials of the alleged offending, I do not accept what he says in that regard and I reject his evidence in that regard.
[51] Transcript of primary court dated 16 November 2023, 133.
Immediately after his observations on the appellant's credibility the magistrate said:[52]
I now turn to the elements of the offence. The primary basis for the identification of the accused was the DNA evidence. The DNA on the inner-back part of the underwear was 16 more - 16 million times more likely to be a contributor from both him and the complainant. The DNA on the vulva wipe was 550 times more likely for him to be a donor as opposed to an unknown male. As mentioned before, the conservative threshold for coincidental statistics is one million. Profiles can be as high as 100 billion sometimes.
As I mentioned moments ago, he can't say how his DNA might have got on the car other than to say that he was cleaning it or making repairs on the car, also that he sometimes drove some of the cars. There was no evidence from him other than that in this regard. There was no evidence of him coughing or sneezing; just what he said in the video interview. It was submitted by his counsel that there was evidence of indirect or secondary transfers.
He made mention of the fact that car seat upholstery or flat surfaces and how they play a part in the transfer of DNA. When put to the expert whether indirect transfers were far-fetched and fanciful, she said, 'No, it could happen. It is possible.' In relation to the vulva wipe, as I mentioned before, the evidence of the expert was that if he had touched her underwear - touched the car and touched her underwear, that the transfer can occur in those circumstances.
When asked in relation to the vulva wipe and the transfer going from the hand to the gauze, her answer was, 'Potentially, if she was not wearing gloves.' If she was wearing gloves, as she was in accordance with the evidence of Detective McSweeney, there would need to be a strong source of the DNA and that a number of transfers would need to occur. As I mentioned before, the evidence of the complainant was that she couldn't recall whether she was wearing gloves or not, but Detective McSweeney did recall, and it wasn't - didn't resile from that position under cross-examination that she was wearing gloves.
The effect of all of this is that any source of the DNA would need to be very strong, or at least strong, in order for there - or in order for me to draw a reasonable inference that indirect transfer or secondary transfer is a reasonable thing to have occurred. I'm satisfied that secondary transfer is excluded regarding the underwear beyond a reasonable doubt. Even if I was incorrect about that, I'm satisfied beyond a reasonable doubt that the transfer is excluded in relation to the vulva wipe.
In order for the DNA to be transferred in that regard, it must have been a lot of DNA in order for that many transfers to occur, as per the evidence of the expert, and that is simply inconsistent with the limited evidence by the accused that he was in one of any number of cars, between 35 and 38, cleaning or repairing those cars.
[52] Transcript of primary court dated 16 November 2023, 133 - 134.
The magistrate then considered what he referred to as 'the secondary basis for the identification' and said:[53]
The secondary basis of identification in relation to the accused is the general description that she gave of the accused. That is to say that she saw a person matching his description or matching possibly a car that he owned.
As pointed out during the course of the trial, the description that she gave could have included any number of people. It was a man with a large belly in his 40s driving a white car wearing fairly stock-standard clothing. I take into account also and give - I give careful consideration to the fact that she also described the person with long hair down to his shoulders, not just on once but she reinforced that on another occasion in particular by reference to the length of the defence counsel's hair.
It's possible to accept part of witness evidence and not other parts. I accept that she gave, for what it's worth, a rather broad description of a person matching his description, and I think that coupled with the DNA evidence leads me to the conclusion that I have today. Witnesses are not infallible; they do make mistakes. The reliability of this witness in particular, she was affected by alcohol, she was affected by amino clonazepam.
Her version of events though in relation to most, if not all, of the matters other than the length of the accused's hair was consistent - is consistent with her injuries, were consistent with her version of events. The bruising on her lower back is consistent with being pushed out of a car. In relation to - so I am satisfied beyond a reasonable doubt of the identity of the accused. That is to say that he was the person in the car who was allegedly assaulted - who allegedly assaulted the complainant.
[53] Transcript of primary court dated 16 November 2023, 134 ‑ 135.
Leave to appeal
Part 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) governs appeals from courts of summary jurisdiction. The appellant requires leave to appeal in respect of each ground of appeal.[54] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[55] To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[56] If leave to appeal is refused, the appeal is taken to be dismissed.[57]
[54] Criminal Appeals Act 2004 (WA) s 9(1).
[55] Criminal Appeals Act 2004 (WA) s 9(2).
[56] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[57] Criminal Appeals Act 2004 (WA) s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[58]
[58] Criminal Appeals Act 2004 (WA) s 14(2).
Grounds of appeal
Ground (a) - failure to observe the presumption of innocence
The appellant contends that the magistrate's remarks in the emphasised passages quoted at [43] necessarily indicate that his Honour, 'before commencing his analysis of the evidence had already determined that the offender was the appellant'. For ease of reference the critical sentences in his Honour's reasons are:[59]
She also made no positive identification of the accused, but rather a general description of a car that he was driving and his physical appearance. There was an incorrect description of the length of his hair and it was said that his hair was long and shoulder length or slightly below shoulder length when, in fact, photographs taken from his phone from June or October that year show him with short hair.
[59] Transcript of primary court dated 16 November 2023, 124.
The appellant accepts the magistrate, 'of course may have simply expressed himself poorly and inadvertently merely, "let the cat out of the bag" as to what he was going to find'. The appellant acknowledges the submission is a 'bold' one. [60]
[60] Appellant's Outline of Submissions, [8] and [9].
The magistrate begun his reasons by acknowledging 'the starting point is that the accused is presumed to be innocent'.[61] His Honour reserved his decision and clearly his Honour knew what the final outcome of his reasons would be when he made the remarks on which the appellant relies. When considered in context and reading the magistrate's reasons fairly and beneficially, the passage relied on by the appellant discloses no more than a minor infelicity in expression. It provides no support for the proposition the magistrate did not approach the fact‑finding exercise on the basis the appellant was presumed to be innocent.
[61] Transcript of primary court dated 16 November 2023, 121.
Ground (a) has no merit and leave to appeal is refused.
Ground (b) - the magistrate failed to direct himself as to the Liberato principles
The appellant contends that having rejected the appellant's account and denials, in a case where identity was 'the issue', it was incumbent on the magistrate to give himself a Liberato direction.[62] The appellant contends, far from putting to one side entirely the account of the appellant, as required by a Liberato direction, his Honour used parts of it to draw an adverse inference against the appellant.
[62] Liberato v The Queen (1985) 159 CLR 507, 575.
In CHJ v Taylor,[63] Corboy J explained:[64]
It is well established that it is not necessary that a jury be given a Liberato direction in every case: Johnson v The State of Western Australia; RMD v The State of Western Australia. However, the direction should be given where the effect of counsels' addresses or of a witness's evidence is to indicate that the jury has the task of choosing between competing stories, especially where the accused has given sworn evidence. Where a Liberato direction ought to be given, it is usually given in the form suggested by Kirby J (Sheller JA and Dowd J agreeing) in R v Anderson. The direction suggested in that case was as follows:
First, if you believe the evidence of the accused, obviously, you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? (footnotes omitted)
[63] CHJ v Taylor [2019] WASC 435.
[64] CHJ v Taylor [59].
In De Silva v The Queen,[65] the High Court said:[66]
The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
…
Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. (footnotes omitted)
[65] De Silva v The Queen [2019] HCA 48.
[66] De Silva v The Queen [10], [13].
In my judgment there is no merit in this ground of appeal for these reasons:
(a)This was not a case in which it was suggested expressly or impliedly that the determination of guilt turned on which of conflicting versions of events were to be believed. No such submission was made by the appellant's trial counsel who, in closing, said:[67]
Your Honour, this does all come down to identity, and there's two elements to the identity: the DNA evidence and also the description given by the complainant of the long dark hair that was shoulder-length, or even potentially an inch or two past . . .
(b)There was no material attack on the complainant's credit.
(c)Having regard to (a) and (b) there was no requirement for a Liberato direction.
(d)Further, the structure and content of the magistrate's reasons do not support the proposition that his Honour approached the question of the appellant's guilt in the manner asserted by the appellant. Immediately after explaining why he rejected the appellant's denials of the offending, the magistrate analysed the prosecution's case on identity. His Honour referred to the DNA evidence. He referred separately to the DNA evidence found on the complainant's G-string and to the DNA evidence found on the vulva wipe. His Honour then turned to consider the 'secondary basis of identification' being the complainant's description of her assailant. The reasons provide no support for the proposition that the magistrate implicitly considered that a rejection of the appellant's evidence was a sufficient basis upon which to determine the appellant's guilt. To the contrary, the structure of the reasons demonstrate that having rejected the appellant's denials of the offending the magistrate turned to consider whether the evidence he accepted established the appellant's guilt.
[67] Transcript of primary court dated 16 November 2023, 101.
Ground (b) has no merit and leave to appeal is refused.
Grounds (c) and (d) - reversal of onus of proof and impermissibly drawing Weissensteiner inference
By ground (c) the appellant contends the magistrate reversed the onus of proof by drawing negative inferences from the failure of the appellant to:
(i)adduce evidence or provide to police an explanation as to his whereabouts on the morning of 22 November 2020;
(ii)adduce evidence or provide police with particulars of the nature of any cleaning or maintenance he may have undertaken on cars he or his business owned or operated; and
(iii)adduce evidence of the status, whereabouts and driver of vehicles he or his business owned or operated on 22 November 2020.
By ground (d) the appellant contends the magistrate impermissibly drew an adverse Weissensteiner inference from the appellant's failure to recall if he used a car on 22 November 2020. This being a reference to an inference of the nature discussed in Weissensteiner v The Queen.[68]
[68] Weissensteiner v The Queen (1993) 178 CLR 217.
Each of these grounds concern the magistrate's approach to what was said by the appellant in his interview with the police and the use to which that evidence could be put. The gravamen of each ground is that the magistrate used what he perceived as inadequacies in the explanation given by the appellant in the police interview and a related failure by the appellant to adduce documentary evidence that was available to him, as evidence which supported the prosecution case.
The appellant places particular reliance on the following passages from the magistrate's reasons.[69]
He has got about 30 or 35 cars either in his name or under a business name. In his name, there's about two or three cars. He says that he keeps records of all his drivers, the day they come in and records day, time, where they come in and where they go out. Sometimes he uses the cars to get places.
He can't remember if he used a car on the day of the alleged assault. I note that only he would have that information.
…
The accused didn't give a great deal of explanation in relation to the theory put forward in his defence. As far as he gave evidence in the video interview, it was basically that he cleaned and repaired a number of cars. He didn't give evidence about any specific vehicles, about whether he may have coughed or sneezed or done anything to leave any DNA in any of these vehicles. There was no evidence in that regard. In relation to his denials of the alleged offending, I do not accept what he says in that regard and I reject his evidence in that regard.
…
As I mentioned moments ago, he can't say how his DNA might have got on the car other than to say that he was cleaning it or making repairs on the car, also that he sometimes drove some of the cars. There was no evidence from him other than that in this regard. There was no evidence of him coughing or sneezing; just what he said in the video interview.
[69] Transcript of primary court dated 16 November 2023, 131, 133.
It may be accepted that it was for the prosecution to prove its case, that this included excluding inferences other than guilt and it was not incumbent on the appellant to give evidence in support of an inference.
As recorded earlier in these reasons, and as the respondent points out, the magistrate directed himself in relation to the onus of proof and the appellant's right to silence. His Honour expressly acknowledged:[70]
The silence of the accused is not evidence against him, nor can it be used to support any inference adverse to him. The fact that an accused person chose not to give evidence at their trial is not an admission of anything and cannot be used to fill any gaps in the prosecution case. I have not taken into account the fact that the accused did not give evidence at his trial when assessing whether his guilt has been proven to the required standard.
[70] Transcript of primary court dated 16 November 2023, 123.
Grounds (c) and (d) depend on construing the passages in the magistrate's reasons on which the appellant relies as indicating that his Honour reasoned in a manner contrary to the direction he had given to himself.
I do not accept the construction the appellant puts on the passages of the reasons on which he relies for these grounds. Once again the structure of the magistrate's reasons is important. As part of the process of outlining the evidence, the magistrate recited the appellant's evidence (see [46]) and into that recitation he interpolated the comment 'I note that only he would have that information'. Next he recorded his assessment of appellant's evidence and explained why he did not accept the appellant's denials of the offending (see [48]) and finally, in the context of identifying the evidence available to establish the elements of the offence and the evidence that was available to support the secondary transfer hypothesis, his Honour referred to limitations in the scope of the appellant's evidence (see [49]).
I accept that the comment 'I note that only he would have that information' and the use of the phrase 'there was no evidence' on three occasions and the comment 'he can't say how his DNA might have got on the car other than to say … ' might be interpreted as providing some support for the appellant's argument but, having regard to the direction his Honour had given himself and the overall structure of the reasons, in my judgment, his Honour was doing no more than identifying the scope of the evidence that had been adduced by the appellant and its limitations. In my judgment, the passages on which the appellant relies are not capable of sustaining the proposition that the magistrate reversed the onus of proof or drew a Weissensteiner inference. Rather, the effect of his Honour's observations, and what his Honour intended them to convey, was that the evidentiary foundation for the secondary transfer hypothesis was very limited. His Honour was emphasising that the evidence of the circumstances in which the appellant's DNA might have been deposited on the vehicle was limited to his statement in the police interview that his work involved 'sorting out mechanical problems or cleaning' cars. I do not accept that his Honour's focus on the limitations in the evidence adduced by the appellant involved him in drawing negative inferences or drawing a Weissensteiner inference.
I would grant leave to appeal in respect of grounds (c) and (d) but would dismiss the appeal in respect of those grounds.
Grounds (e) and (f)
By ground (e) the appellant contends the magistrate misconstrued the evidence as to the reasonable possibility of secondary transfer of the appellant's DNA and thereby erred in finding that there was no reasonable hypothesis consistent with a secondary transfer of the appellant's DNA to the complainant's underwear or vagina.
By ground (f) the appellant contends the magistrate erred by finding that the DNA evidence alone was sufficient evidence in the circumstances to establish beyond reasonable doubt that the appellant had indecently assaulted the complainant including:
(i)the evidence of the complainant that her attacker had long hair to his shoulders;
(ii)the uncontradicted account of the appellant that he owned or operated approximately 34 cars, including a number of white cars which were regularly cleaned and maintained by the appellant and regularly operated as Uber vehicles on Saturday nights/Sunday mornings in the Northbridge area.
The appellant's submissions dealt with grounds (e) and (f) together. The effect of the submissions was that the finding of guilt was unreasonable and could not be supported by the evidence. The grounds will be considered on that basis.
As was noted in the respondent's submissions, the principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well-established and were summarised by the Court of Appeal in Wells v The State of Western Australia.[71] In Wells the court also elaborated on the correct approach to criminal cases that rest on circumstantial evidence. The relevant passages from Wells are as follows:
[71] Wells v The State of Western Australia [2017] WASCA 27 [13].
The 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.
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v BadenClay as follows:
(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. (Footnotes omitted)
The appellant expressed the critical propositions on which his argument in respect of grounds (e) and (f) was based as follows:[72]
[72] Appellant's Outline of Submissions [45] - [50].
The likelihood ratios indicated that amount of male DNA located on the G-string (in all locations, inside and out) was low. In our submission, this was consistent with a secondary transfer more so than direct contact from the contributor (eg the appellant) and the complainant.
The area producing the 'strongest' profile, namely the inner back of the G-string was, on the complainant's account that she had no recollection of her bottom being touched, might reasonably be expected to have had the weakest profile, rather than the strongest (albeit still relatively weak).
The fact that the strongest profile was obtained from the inner back it is submitted would also leave open as a reasonable possibility, the transfer of the contributors DNA - deposited on the G-string by secondary transfer, to the complainant's vagina or perineum and subsequently to the vulval swab that was instructed to be used by wiping up gently.
It is not submitted that DNA evidence alone can never be sufficient to sustain a finding of guilt, but in this case there was a significant body of other evidence that necessarily meant the prosecution could not exclude as a reasonable possibility an innocent explanation for the presence of the DNA. In particular the following matters are all in our submission individually and cumulatively important to whether the DNA evidence alone was sufficient to prove the identity of the offender was the appellant:
a.a reasonable possibility that the complainant had been drink spiked and subsequently collected by that person;
b.the confident, clear and unchallenged evidence of the complainant that her attacker had long shoulder length hair;
c.the effectively unchallenged evidence that the appellant at the relevant time had short hair;
d.the acceptance by the expert that the postulated mechanism of innocent secondary transfer was (in and of itself) a reasonable possibility and not far fetched;
e.the explanation provided by the appellant as to how his DNA might have come to be on the front passenger seat of a white car in Northbridge that evening; and
f.the failure of the police to do even the most cursory investigation as to the cogency of that explanation so as to exclude it as a reasonable possibility;
It is submitted the Learned Magistrate did not properly address this evidence and provide any or any sufficient reasons as to why it could not provide a reasonable hypothesis inconsistent with guilt and why the DNA evidence was in and of itself sufficient.
…
It is respectfully submitted that the Learned Magistrates reasons do to properly explain how or why he could reject the account of the appellant, reject the only clear identification of the complainant and significantly reject the reasonable possibility that the DNA came to be located as a result of secondary transfer.
In oral submissions senior counsel for the appellant accepted that the prosecution case was a strong circumstantial case.[73]
[73] Transcript of appeal court dated 21 June 2024, 11.
The respondent's overarching contention is that the evidential deficiencies on which the appellant relies fail to recognise that the case against him was circumstantial, that the evidence must be considered as a whole, and that a hypothesis consistent with innocence must be reasonable, rational and based on the evidence. In this context, so the respondent contends, a reasonable inference must rest on something more than mere conjecture, and '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'.[74] The respondent contends the appellant's argument that secondary transfer of the DNA was a reasonable hypothesis depends on the adoption of a piecemeal approach.
[74] Transcript of appeal court dated 21 June 2024, 21.
The respondent developed detailed submissions addressing grounds (e) and (f). Rather than attempt a summary of those submissions it is more convenient to set them out verbatim.[75]
[75] Respondent's Outline of Submissions.
26The asserted possibility of secondary transfer depends on the occurrence of two separate transfer events. This can only have occurred if:
26.1DNA on the complainant's underwear: the appellant's DNA was transferred from the car to the appellant's hands and then jeans, or directly to her jeans, and then to the complainant's underwear by contamination because the items were bundled together for a short time before testing. Alternatively, the appellant's DNA was transferred from the car to the complainant's hands (potentially via her jeans) and then onto her underwear by her putting her hands in her pants.
26.2DNA on the vulva swab: the appellant's DNA was transferred from the car, to the complainant's hands (potentially via her jeans), into her underwear by her putting her hands in her pants, onto her vulva and then onto the vulva swab. Alternatively, the appellant's DNA was transferred onto the complainant's jeans, then onto her gloved hands just prior to completing the vulva swab, and then onto the vulva swab by the complainant touching the swab gauze.
27Further, the alternative inference becomes fanciful, having regard to Ms Murakami's evidence that:
27.1'[T]he transfer of DNA to one surface to the next is, generally, quite inefficient', and that the more transfers take place, the less likely it is that DNA will be detectable on the final tested surface particularly if there was only a small amount of DNA on the transfer surface (here, the car seat) to start with.
27.2Fabric is good at retaining cellular material, while such material is more easily removed from smooth or glossy surfaces. Her opinion that a transfer from car upholstery to jeans would be 'more difficult' than transfer from a smooth surface.
27.3Saliva, blood and semen are rich sources of DNA while skin cells and sweat may be characterised as poorer sources.
27.4Where there has been a lot of touching of other surfaces once transfer has occurred (as here), the transferred DNA may be transferred in turn to those surfaces and 'background DNA' from other individuals might also be detected.
27.5For the complainant to have transferred the appellant's DNA from her jeans, via a gloved hand, to the vulva swab a 'large amount' of DNA would be required for it to be detected, with the original source needing to be 'strong'.
28The appellant's contention relies on a number of transfers taking place, in circumstances where the richest source of DNA suggested was the appellant's saliva deposited (and presumably dispersed) via sneezing or coughing while he was conducting maintenance or cleaning of the car. Those circumstances do not support the presence of a large amount of a rich source DNA being present in the car. A DNA deposit would have to remain there during the cleaning process and through subsequent use of the car by potentially numerous drivers and passengers.
29The nature of the particular surfaces is also an important consideration. It was put to Ms Murakami that the upholstery on a car seat would be porous, so would retain cellular material. While this may be the case, it also means that cellular material would be less likely to be transferred from that car seat. Similarly, the suggestion that the complainant may have picked up the appellant's DNA while wearing gloves, from her jeans or underwear, and deposited that DNA onto the vulva swab is improbable, having regard to Ms Murakami's evidence that DNA material may be easily wiped off a smooth surface (such as a gloved hand).
30It is notable that the appellant's, and only the appellant's, DNA was detected on the complainant's underwear and the vulva swab. The suggested alternative inference relies on a curious combination of facts co-existing; specifically, that a) the appellant's DNA was easily transferred to the complainant while the complainant was in the car, but not so easily transferred off the complainant in the intervening period between her leaving the car and her clothes being seized with a sufficient amount of the appellant's DNA subsisting on the complainant's clothing/hands to be subsequently detected via testing and, b) that the appellant's DNA was easily transferred to the complainant, but no other male - including the actual offender and the complainant's neighbour - was so unfortunate. At the very least, the complainant was sexually assaulted, slept on a male neighbour's house while wearing her jeans for a number of hours, touched a male neighbour's phone, used a screwdriver to enter her home, and touched her work phone. It is highly improbable that a small amount of transferred DNA would remain on the complainant's hands or jeans at a detectable level and that no other DNA would have been picked up by her hands or jeans and subsequently transferred (along with the appellant's DNA) to her underwear and vulva swab.
31The appellant's piecemeal approach to the circumstantial evidence is illustrated by his reliance on Ms Murakami's agreement with the propositions put to her in cross-examination that certain modes of transfer were not 'fanciful'. However, the possibility of secondary transfer requires the happening of multiple simultaneous transfer events, all of which must occur before secondary transfer becomes possible. The inherent improbability of secondary transfer as an explanation of the DNA evidence becomes more apparent when the totality of the evidence is considered. Importantly, Ms Murakami's response did not reflect factors such as what the complainant's movements were between hypothetical transfer events or whether the transferred DNA would be detectable.
32The appellant contends that it is significant that the highest DNA result was obtained from the inside back of the complainant's g-string despite there being no allegation that the complainant's bottom was touched during the assault. However, the respondent does not accept that this supports an inference of secondary transfer. Being the thinnest portion of the complainant's underwear, the inner back is the area that would have least contact with the complainant's jeans (where contamination from police handling is suggested). And, the inner back part of the complainant's underwear is the least likely area to be touched by her if, for example, she pulled her underwear down when using the bathroom (which she does not remember doing). Indeed, the appellant suggests that transfer from the inner back of the complainant's g-string (he says having been innocently transferred there in the first place) to her vulva as a reasonable explanation for his DNA being located on the vulva swab.The reverse, in the respondent's submission, is the far more compelling scenario. At best, this was a neutral factor.
33The appellant also suggests that it is significant that the complainant described the offender as having long hair, whereas the evidence at trial indicated the appellant did not have long hair at the time. The magistrate was entitled, however, to accept that the complainant was honest but mistaken in this regard.The magistrate fairly took into account that the complainant was affected by drugs and alcohol. Further, it was open to his Honour to rely on the fact that otherwise the complainant's description of her assailant broadly corresponded with the appellant's appearance.
34Overall, the appellant has not established that the magistrate must have had a reasonable doubt about the guilt of the appellant. His Honour was entitled to conclude that the only available reasonable inference from the proven facts was that the appellant's DNA was detected because he was the person who assaulted the complainant. Grounds E and F should be dismissed. (Footnotes omitted)
Having made my own assessment of the evidence I am satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. This was not a case in which the magistrate must have entertained a doubt that the appellant was not guilty. Although in the paragraphs that follow I have identified the matters that have led me to this conclusion individually, I stress that they are not to be considered as if they were independent of each other. It is all the matters taken in combination that have led me to the conclusion I have reached.
The appellant's case relies heavily on Ms Murakami's acceptance that the theoretical possibility of the secondary transfer mechanisms put to her in cross-examination were real and not fanciful. That evidence did not absolve the magistrate and does not absolve me from the need to assess the weight to be given to that evidence in the context of all of the circumstances, including the need for a rich source of DNA as a starting point, the 'inefficiency' of surface-to-surface transfer of DNA, the progressive reduction of DNA from successive transfers (explained by Ms Murakami's paint analogy) and the absence of DNA profiles inconsistent with either the complainant or the appellant.
Importantly, as the respondent contends, if secondary transfer of DNA is capable of occurring in the manner and to the extent to which it was required to occur to support the secondary transfer hypothesis advanced on the appellant's behalf, one would have expected samples taken from the complainant's underwear and vulva to have disclosed DNA from other sources, in particular from another male being the offender, and from the complainant's neighbour.
The ultimate evidentiary foundation for the proposition that the appellant's DNA was deposited on the interior surfaces of the vehicle in which the complainant was assaulted was slight. It was constituted by a single answer given by the appellant in the police interview in which he said his work involved him, 'sorting out mechanical problems or cleaning'. The secondary transfer hypothesis rests on this evidence and the possibility put in cross-examination to Ms Murakami and advanced in closing that the appellant's DNA was deposited in the vehicle when he sneezed, coughed or by the deposit of epithelial cells. There was nothing in the evidence that raised this possibility beyond a bare possibility.
Even if one accepts this possibility as an explanation for the presence of the appellant's DNA in the vehicle, bearing in mind Ms Murakami's evidence that the transfer of DNA from one surface to another is 'quite inefficient', in my judgment it is inherently improbable that the dispersal of saliva or mucous caused by a sneezing or the deposit of skin cells in the process of cleaning, would result in a deposit of a rich source of the appellant's DNA capable of supporting the successive secondary transfers on which the appellant's secondary transfer hypothesis depended.
Further, I do not accept that the possibility of a secondary transfer provides a rational hypothesis for the presence of a single source Y‑chromosome DNA profile that was more than 550 times more likely to occur if the appellant was the donor as opposed to an unknown man from the Western Australian population taken from the vulva wipe. The complainant had changed out of the clothes she was wearing when she was assaulted before Constable Costa completed the process of photographing the complainant. Thus, the possibility of a secondary transfer from the complainant's clothes to her vulva immediately before taking the vulva wipe is excluded. The possibility of a secondary transfer from the complainant's hands onto her vulva or directly on to the wipe itself in the process of the complainant taking the wipe is excluded because the complainant was wearing gloves. This analysis leaves the possibilities that there was a transfer of DNA directly from the complainant's hands onto her vulva or from her underwear onto her vulva. The hypothesis relies on an accumulation of contingencies, and once again, when account is taken of the need for a rich source of DNA as the original deposit and the progressive reduction of DNA from successive transfers, each of the remaining possibilities is inherently improbable.
I do not consider that the relatively low likelihood ratios in respect of the DNA profiles taken from the complainant's G-string and vulva assist the appellant to any material extent. Those likelihood ratios were explained by Ms Murakami's evidence that the presence of the complainant's DNA overwhelmed the smaller amount of other DNA found to be present.
The appellant attaches some importance to the presence of a higher likelihood ratio of the DNA sample taken from the inner back of the G‑string and emphasises that the complainant's evidence was that she had no memory of her assailant touching her bottom or indeed of his hands being under her clothes. In and of itself, the higher likelihood of the presence of the appellant's DNA on the inner back of the G-string does not support the secondary transfer hypothesis nor reduce the possibility that it was the result of a direct transfer from the appellant even though the complainant cannot recall being touched inside her clothes or on her bottom. The relative higher likelihood ratio in respect of the sample taken from the inner back of the G-string is, as the respondent contends, at best (from the appellant's perspective) a neutral factor.
The ultimate effect of the matters to which I have referred is that I am not satisfied that the secondary transfer hypothesis does more than raise the bare possibility of innocence. It is not a rational hypothesis consistent with the appellant's innocence. I grant leave to appeal in respect of grounds (e) and (f) but dismiss the appeal in respect of those grounds.
Conclusion
The appeal will be dismissed and I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
17 OCTOBER 2024
0
7
2