Clarke v Cram
[2020] ACTSC 113
•16 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Clarke v Cram |
Citation: | [2020] ACTSC 113 |
Hearing Date: | 16 April 2020 |
DecisionDate: | 16 April 2020 |
ReasonsDate: | 08 May 2020 |
Before: | Crowe AJ |
Decision: | The appeal is allowed, the convictions recorded by Magistrate Lawton on Friday 10 January 2020 are set aside and a finding of not guilty is substituted in relation to each charge, namely, CC2019/3134 and CC2019/8874. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – Appeal against finding of guilt – Burglary and theft – DNA evidence of two persons – where the prosecution failed to exclude the possibility that the other person was the offender – convictions set aside. |
Legislation Cited: | Magistrates Court Act 1930 (ACT) – s 280. |
Cases Cited: | ED v The Queen [2019] ACTCA 10 Goodwin v Williams [2018] ACTSC 279 R v King (No 2) [2016] ACTSC 121 |
Parties: | Allan Clarke (Appellant) Thomas Cram (Respondent) |
Representation: | Counsel Mr Cooper (Appellant) Ms Saikal-Skea (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Office of the Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 6 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Lawton Date of Decision: 10 January 2020 Case Title: Thomas Cram v Allan Clarke Court File Number(s): CC2019/3134; CC2019/8874 |
Crowe AJ:
On 10 January 2020, the appellant, Mr Clarke, was convicted of burglary and theft in the Magistrates Court of the Australian Capital Territory. The convictions related to events which had occurred on 27 December 2018 at a residence in Downer in the ACT (the residence). The appellant appealed against the convictions. I heard submissions on the appeal on 16 April 2020. At the conclusion of the hearing, I ordered that the appeal should be allowed and that the convictions be set aside and findings of not guilty be made in relation to the charges. These are my reasons for those orders.
The evidence in the prosecution case established that at about 11:20am-11:25am on 27 December 2018, a male was captured on CCTV footage (taken from a neighbouring property) peering between the bushes on the front boundary of the residence. The male was white, stocky, of average height, aged somewhere between 30 and 40, and had no distinguishing characteristics other than perhaps his hair (which was over collar length, light coloured and straggly). In the CCTV footage, the offender was wearing a green striped tee shirt, cargo shorts, runners and a green Canberra Raiders cap.
On 27 December 2018, Mr Ackland and Ms Obata, who lived in the residence in question, were working in the front yard on landscaping tasks at the time of the offence. At just before 11:30am, Mr Ackland started to wheelbarrow some material towards the rear of the residence. As he moved into the backyard and was in the car port at the side of the residence, Mr Ackland saw a man coming out the back door of the residence. He saw the man only for a moment. Mr Ackland described the offender as wearing a green cap and clothing that matched the description of the offender captured in the CCTV footage. Mr Ackland called out to the offender, and the man took off. The offender ran up the other side of the residence. The offender was again captured on the neighbour’s CCTV, this time running from the bushes on the boundary across the front yard of the neighbour’s property. On this occasion the offender was missing the Raiders cap.
Mr Ackland and Ms Obata discovered that some items had been stolen from their home. Mr Ackland found the green Raiders cap in the front yard, not far from the bushes on the boundary with the neighbour who had the CCTV. Ms Obata later spoke to that neighbour who provided them (and later, the police) with the CCTV footage of the offender.
The Raiders cap was taken by the investigating police and was later subjected to DNA testing. The DNA testing demonstrated the presence of DNA from two individuals on the sweat band of the cap. One of the individuals was identified with a high degree of probability as being the appellant. The other DNA was not suitable for identification purposes. That is, there was insufficient quantity of DNA to identify the second contributor. It was, however, sufficient to conclude that it was from someone other than the appellant.
The appellant was charged with burglary and theft in relation to the events described above.
In convicting the appellant, the Magistrate said that he was satisfied that the offender was the man depicted in the CCTV footage, and that he had lost the Raiders cap as he made good his escape. In relation to that CCTV footage however, the Magistrate said:
The utility for the prosecution, however, in my view, can only be limited to a certain extent in that there does not – it’s so clear [sic, his Honour meant to say “not so clear”] that I could positively identify the face of the offender. What I can say is that the footage does not exclude the defendant as the offender, as there is clearly no massive or significant physical difference between the offender and the defendant.
In relation to the evidence linking the appellant to the offences his Honour said:
That profile - there was also a minor, another profile that can be not attributed to the defendant, on the sample located on the gap [sic, cap]. And Ms Stone gave evidence about how she was unable to analyse that, given the limited amount of DNA in the sample from that second person. She was cross-examined as to the possibilities of, and I emphasise the word 'possibility', of the defendant's DNA being located on the cap through secondary transfer. She accepted that they were possibilities, but again I direct myself that in a circumstantial case, I have to look at all of the evidence. And in particular, I note the location of where that sample was located - that is, on the sweatband of the cap as worn by the offender. And that the sweatband of the cap worn by the offender had the major contribution of DNA to the profile come from a profile that matched, and I use that expression cautiously, but it's more of a shorthand, in as much as that the profile obtained from the sweatband is 100 billion times more likely to have come from the defendant and another person, as opposed to some other unknown person and the contributor to the minor sample.
So I find that evidence, putting aside the number, as I don't necessarily think that - as those numbers can often lead to unsafe inferences, in my view. I am satisfied and agree with the opinion of the expert, Ms Stone, that it's extremely strong support for the proposition that the contribution to the sample was made by the defendant, as opposed to a person drawn at random from the population. So those three elements, or three elements of the prosecution case I have to look at in combination. I have to say, I'm not satisfied that there is a possibility of an alternative hypothesis as to how the DNA got onto the DNA of the sweatband of the cap.
Ms Stone, who was the forensic biologist who had provided a report as to the DNA on the Raiders cap, had given evidence before the Magistrate.
After concluding that there was no possible alternative hypothesis to explain the presence of the appellant’s DNA on the Raiders cap, the Magistrate concluded that he was satisfied beyond reasonable doubt that the appellant was wearing the Raiders cap at the time of the offences and that he was the offender.
On 30 January 2020, the appellant filed a Notice of Appeal on the sole ground that the finding of guilt was unsafe and unsatisfactory. Paragraph 5a of the Notice of Appeal, after amendment, sought relief in the following terms:
That the appeal is upheld and findings of not guilty be entered in relation to CC2019/3134 and CC2019/8874.
Submissions
Submissions of the Appellant
The essence of the appellant’s argument was that the only evidence to identify him as the offender was his DNA on the Raiders cap. Neither Mr Ackland nor the CCTV footage provided any proper basis for identifying the appellant as the offender.
Mr Cooper, who appeared as counsel for the appellant, submitted that on the evidence before the Magistrate, there was no proper basis for excluding the second unidentified contributor to the DNA on the Raiders cap as being the person who committed the offences.
Mr Cooper relied on the evidence from Ms Stone as to DNA “shedding” and as to whether it was possible to draw any inferences as to when the DNA of each contributor was deposited on the cap.
In relation to the first point, Mr Cooper pointed to the following passage from the evidence of Ms Stone (Transcript, p. 32, lines 38-42):
MR TURNER: Can you explain that to the Court?
MS STONE:So through research, we know that some people have a higher propensity to leave a lot of DNA behind so even though they might have only touched an item briefly, they can leave a lot of DNA behind and the reverse holds too, that sometimes some people can have a lot of contact with an item but just not leave a lot of DNA behind. We’re all different and that’s what we can show with DNA and with how much DNA we leave when we touch items.
As to the question of timing, Ms Stone said on a couple of occasions that she was unable to say when the DNA was deposited on the cap. At Transcript, p. 33, lines 9-23 the following appears in the cross-examination of Ms Stone:
MR TURNER: If Mr Clarke did contact the hat, when did that occur?
MS STONE:I can’t give any indication of when the DNA was left behind on items.
MR TURNER: Could you tell the Court what part of the body the DNA would have come from?
MS STONE: Again, we can’t say that from the DNA profile what the source of the DNA was.
MR TURNER: How long has that DNA been on that cap?
MS STONE: Again, we cannot say the length of time that was on an item.
MR TURNER: You have given evidence that there were two contributors to the profile, is that correct?
MS STONE: That’s correct, there’s at least two.
Mr Cooper submitted that this was a circumstantial case in which the prosecution was required to exclude all reasonable hypotheses consistent with the appellant’s innocence. Mr Cooper submitted that the prosecution had failed to do so, and that the Magistrate had fallen into error in failing to consider the possibility that the Raiders cap had been worn by the second DNA contributor at the time of the offending.
Submissions of the Respondent
Ms Saikal-Skea, who appeared as counsel for the respondent, argued that the hypothesis that the second DNA contributor might have been the offender was merely a “speculative possibility”. It was not particularly explored in the evidence. Ms Saikal-Skea pointed to the evidence of Ms Stone that the appellant contributed significantly more DNA to the sample from the Raiders cap than the second contributor, and also the evidence that the sweat band was likely to be the place most likely to accumulate the DNA of someone wearing the cap.
It was submitted for the respondent that Ms Stone was not cross-examined as to the research on shedding and how it might apply to the circumstances of this case. In those circumstances the possibilities of the relative shedding of the appellant and the second contributor were not quantified.
Moreover, it was argued by Ms Saikal-Skea, that the evidence of the CCTV footage tended to support the proposition that the appellant was the offender.
The respondent submitted that in the context of those matters, the Magistrate did not fall into error.
Appeal Principles
The principles to be applied were not controversial. The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) and the applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 by Refshauge J at [24].
In relation to the challenge based on the assertion that the Magistrate’s judgment was unsafe or unsatisfactory, the approach to be taken by the appellate court is relevantly summarised by the Court of Appeal (Murrell CJ, Mossop and Bromwich JJ) in ED v The Queen [2019] ACTCA 10 at [43] in the following terms:
…
(b) The appeal court is to make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, but in doing so it must give full weight to the primacy of the jury and their “advantage” in “seeing and hearing” the witnesses: M v The Queen (1994) 181 CLR 487 (M v The Queen) at 492–494; MFA v The Queen [2002] HCA 53; 213 CLR 606 (MFA) at [59]; SKA v The Queen [2011] HCA 13; 243 CLR 400 (SKA) at [22]–[24]; Baden-Clay at [66]; Dickson v R [2017] NSWCCA 78; 94 NSWLR 476 at [84]–[85]; BI at [15].
(c) On an appeal against conviction on the ground that a verdict was unreasonable, the ultimate question 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: M v The Queen at 494–495. The question is “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; M v The Queen at 492–494; Kaddour v R [2019] NSWCCA 90 (Kaddour) at [128].
The recent decision in Pell v The Queen [2020] HCA 12 at [43]-[45] should be added to the authorities supporting the statement in paragraph (c) in the above extract.
These principles are applicable to the challenge of a decision of a Magistrate (see Goodwin v Williams [2018] ACTSC 279 at [136]-[140] per Penfold J).
Consideration
There is much force in the submissions made for the appellant that the Magistrate focussed on the issue of secondary transfer of DNA and simply overlooked the hypothesis that the second contributor was wearing the cap at the time of the offending. Contrary to the submission of the respondent, I do not see that hypothesis as a “speculative possibility” only.
The evidence of Ms Stone as to shedding and timing left it as an entirely reasonable possibility that:
(1)The appellant had worn the cap from time to time in circumstances where he was a reasonably strong shedder of DNA;
(2)The second contributor had borrowed and worn the cap at the time of the offending; and
(3)The second contributor was a weak shedder of DNA.
That possibility provided an alternative explanation for the evidence which was consistent with the appellant’s innocence. In a circumstantial case such as this, the prosecution bore the onus of excluding that alternative explanation; see R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [50].
I accept that the Court must, in assessing whether the alternative explanation is excluded, consider and weigh all of the circumstances established by the evidence; see R v Hillier [2007] HCA 13; 228 CLR 618 at [46]-[48]. However, the difficulty for the prosecution here was that there was simply no other evidence of identification which provided a logical basis for excluding the alternative hypothesis. The respondent argued that the CCTV footage provided a basis for the Magistrate to have rejected the alternative hypothesis. However, his Honour clearly did not reason in that way. His Honour explicitly said that he could not positively identify the appellant in the CCTV footage. The most his Honour could say about the CCTV footage is that it did not exclude the possibility that the appellant was the offender.
Although every case must turn on its own facts, I was struck by the similarities of this case to the matter of R v King (No 2) [2016] ACTSC 121 (King), which was relied on by the appellant. In that matter, Mr King was accused of burglary of a commercial premises. The only evidence linking Mr King to the burglary was a pair of soiled underpants found at the scene. DNA testing found DNA from two persons on the underpants. There was a high degree of probability that one of the samples came from Mr King. As in this case, the sample of the other contributor was insufficient for identification.
In King, the Crown submitted that the following additional circumstances (which the Chief Justice found proved) established that the accused was the burglar:
(c)The quantity of the accused’s DNA that was found on the waistband of the underpants was substantial. I infer that the accused had, at some stage, worn the underpants.
(d)The underpants were not washed after the accused’s DNA was deposited on them; had they been washed, it is unlikely that Ms Stone would have collected such a rich sample of the accused’s DNA from the underpants. If the burglar was not the accused, then the burglar was someone who was wearing the accused’s dirty underpants, and most people prefer to avoid wearing other people’s unwashed underpants.
However, the Chief Justice was not satisfied that the possibility that the second contributor had been wearing the underpants at the time of the offence had been excluded. Her Honour said at [77]:
In this case, the DNA evidence was the only evidence implicating the accused. Had there been any other evidence tending to implicate the accused which was not related to the DNA evidence, then I may have been satisfied of his guilt beyond reasonable doubt. However, I am not satisfied that guilt is the only available rational inference. There is, for example, a reasonable (albeit small) possibility that the burglar was someone else who was wearing unwashed underpants that had previously been worn by the accused.
It seems to me that the probability of someone borrowing and wearing someone else’s cap is appreciably higher than that of a person borrowing and wearing someone else’s unwashed underpants.
In any event, in my view the Magistrate simply failed to consider the alternative possibility here. If the Magistrate had considered the alternative hypothesis, that is, that the second DNA contributor was wearing the Raiders cap at the time of the offence, his Honour would have had no choice, in my view, but to conclude that it had not been excluded having regard to all of the evidence in the case. It follows that his Honour would have found the appellant not guilty of the charges.
For these reasons I allowed the appeal and set aside the convictions.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |
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