Colson v The King

[2024] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

COLSON v THE KING

[2024] SASCA 38

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)

28 March 2024

CRIMINAL LAW – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED

CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – FAILURE TO GIVE REASONS - ADEQUACY OF REASONS – ADEQUACY OF REASONING TO SUPPORT VERDICT

CRIMINAL LAW – APPEAL - EVIDENCE – FORENSIC DISADVANTAGE - DELAY

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – FALSE IMPRISONMENT AND UNLAWFUL DETENTION

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – ROBBERY

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT

Following a trial by a Judge alone, the appellant was found guilty of one count of aggravated serious criminal trespass in a place of residence, three counts of false imprisonment, three counts of aggravated procuring sexual intercourse by threats or intimidation, one count of rape, one count of aggravated indecent assault and one count of aggravated robbery.

The appellant applies for leave to appeal his conviction on four grounds. First, that the verdict was unreasonable and cannot be supported having regard to the evidence. Second, that the trial judge’s reasons are inadequate. Third, that the reasoning of the trial judge in relation to intermediate findings of fact do not provide sufficient support for verdicts of guilty beyond reasonable doubt. Fourth, that the trial judge failed to properly assess the evidence in light of the significant forensic disadvantage to the appellant.

Held, per the Court, granting permission to appeal on ground 1 but dismissing ground 1 and refusing permission to appeal on grounds 2, 3 and 4.

1.      The trial judge’s verdict was not unreasonable and is supported by the evidence.  It was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty by having regard to the evidence as a whole and having excluded as not reasonably open on the evidence the only hypotheses consistent with the innocence of the appellant.

2.      The trial judge’s reasons were adequate and the reasoning in relation to intermediate findings of fact provide sufficient support for verdicts of guilty beyond reasonable doubt. 

3.      The trial judge did not fail to properly assess the evidence in relation to potential forensic disadvantage to the appellant.

4.      The Court grants permission to appeal on ground 1, refuses permission to appeal on grounds 2, 3 and 4 and ultimately dismisses the appeal.

Criminal Procedure Act 1921 (SA) s 158(1)(a); Juries Act 1927 (SA) s 7(4); Evidence Act 1929 (SA) s 34CB, s 34P, referred to.

Bates v The King [2023] SASCA 65; Coughlan v The Queen (2020) 267 CLR 654; Dansie v The Queen (2022) 274 CLR 651; Deng v The King [2023] SASCA 35; De Sa v The Queen [2021] SASCFC 22; DL v The Queen (2018) 266 CLR 1; Fennell v The Queen (2019) 373 ALR 433; JGS v The Queen [2020] SASCFC 48; M v The Queen (1994) 181 CLR 487; R v Baden-Clay (2016) 288 CLR 308; R v Gjergji (2016) 126 SASR 106; R v Hillier (2007) 228 CLR 618; R v Lloyd [2023] SASCA 106; R v Maiolo (No. 2) (2013) 117 SASR 1; R v Sexton [2018] SASCFC 28; Shepherd v The Queen (1990) 170 CLR 573; Trussell v The King [2023] SASCA 5, applied.
Fitzgerald v The Queen (2014) 311 ALR 158, distinguished.

R v Cassebohm (2011) 109 SASR 465; R v S [2015] SASCFC 179; R v W, PK [2016] SASCFC 5; Patterson (A Pseudonym) v The Queen [2022] SASCA 57; Parker v The Queen [2022] SASCA 89, considered.

COLSON v THE KING
[2024] SASCA 38

Court of Appeal – Criminal:  Livesey P, Doyle JA and Stanley AJA

THE COURT:

Introduction

1. This is an application for permission to appeal against conviction. 

2. On 17 December 2021 the appellant was found guilty by the District Court, after a trial by judge alone, of one count of aggravated serious criminal trespass in a place of residence, three counts of false imprisonment, three counts of aggravated procuring sexual intercourse by threats or intimidation, one count of rape, one count of aggravated indecent assault and one count of aggravated robbery. 

3. The offending occurred in the domestic residence of the two complainants, who are husband (WH) and wife (HH), at an address in Northgate.  At about 4:00 a.m. on 5 September 2008 HH was in the garage which adjoined the residence when she was confronted by the offender.   He was wearing a white cricket hat and a scarf covering most of his face. He was wearing black knitted woollen gloves and brandishing a handgun.  HH ran into the house into her daughter’s bedroom.  The offender forced HH and her daughter into the master bedroom where WH was sleeping.   The offender committed a number of sexual offences against HH and WH.  Just before 4:48 a.m. he drove away in a Ford motor vehicle belonging to the complainants.  He took various items belonging to the complainants.  There is no dispute that the offending occurred as described by the complainants, whose evidence was received by the Court in the form of written statements admitted by consent.[1]  The only issue at trial was the identity of the offender.  There was no challenge that the person who had entered the master bedroom of the complainants’ residence on 5 September 2008 was guilty of each of the charged offences.  The issue was whether it had been proved beyond reasonable doubt the appellant was the offender. 

   [1]     Exhibits P2A-P3H.

4. The trial judge set out an overview of the prosecution case in her reasons for verdict in the following terms:[2]

   The prosecution case is that it is the accused who entered the home of the complainants in the early hours of 5 September 2008. He has not been identified by either complainant. The person who entered their home was unknown to them and disguised with a scarf wrapped around his face, so that only his eyes were visible. He was wearing a hat and gloves throughout the time he was in their presence. He had a small silver handgun. The prosecution proposes to prove the identity of the offender by means of five broad categories of circumstantial evidence.

   The first category relates to the use of a telephone number 0428 878 267 that is alleged to have been used by the accused at all relevant times.

   The second category is the connection of the accused to a person by the name of Stacey Borsi-Watson who at the relevant time resided at Morley Street West Richmond. It was at this property that items that had been removed from the complainants’ home were located. There is also evidence connecting the accused with Stacey Borsi-Watson and a telephone number 0450 419 136 and contact made between the telephone alleged to be in the possession of the accused and the telephone allegedly used by Ms Borsi-Watson at the relevant time.

   The third category of evidence is the accused’s possession of a small silver handgun and black knitted gloves. The offender is alleged to have had a small silver handgun throughout the course of the offences and was wearing black knitted gloves at that time. The accused was located on 9 September 2008 in possession of a small silver handgun and black knitted gloves.

   The fourth category of evidence is DNA evidence. This DNA evidence relates in particular to DNA located in a hat worn by the offender and left at the scene of the crime. DNA was analysed and an opinion given of a statistical weighting of 62 billion, being extremely strong support, in favour of inclusion of Mr Colson in that mixed DNA profile. There is also a mixed DNA profile obtained from the steering wheel and the gear lever of the complainants’ car, that was stolen by the offender, from which Mr Colson cannot be excluded.

   The fifth category of evidence is the consistencies between the descriptions of the offender by the complainants and the appearance of the accused in 2008.

   [2]     R v Colson [2021] SADC 150 at [24]-[29].

5. The trial judge set out an overview of the defence case in the following terms:[3]

   The defence position is that although it is accepted that the offender committed all the offences with which the accused is charged, there is a reasonable doubt as to the identity of that offender being the accused. Whilst they accept each of the categories of evidence upon which the prosecution rely for proof, they submit that it has not been proven beyond reasonable doubt that the accused was the offender. They submit that there are three scenarios that provide a rational hypothesis consistent with the innocence of the accused in relation to this matter. I bear in mind that they do not need to prove any one of these rather the prosecution must disprove them.

   The first scenario is that the accused attended at the complainants’ premises at the relevant time but did not go into the bedroom of the premises. It is submitted that it is possible that the true offender was somebody associated with the accused and it is that person who went into the bedroom of the premises. Further that the accused travelled in the stolen motor vehicle with the true offender until it was left at Brompton and that the accused and the true offender, who both have an association with Stacey Borsi-Watson, leave the scene.

   The second scenario is that the accused was in the vicinity of the Walkley Heights telephone tower at 11:33pm on 4 September 2008. He did not go to the complainants’ address however he later met the true offender, and they travelled to Brompton in the stolen Ford and that the accused has an association with Stacey Borsi-Watson as does the true offender.

   The third scenario is that the accused was in the vicinity of the Walkley Heights tower at 11:33pm on 4 September 2008. He did not go to the complainants’ address but met the true offender at Brompton. Further, that the accused and the true offender have an association with Stacey Borsi-Watson.

   It is the defence submission that the descriptions given by the complainants are inconsistent with the accused being the true offender.  The defence particularly rely upon the description by both complainants, that the offender is Caucasian. The accused is indigenous. They also point to the inconsistency of WH’s observation that the offender has very large feet, possibly wearing size 12 shoes, when the accused was issued size 9 shoes while in custody.

   Where the DNA evidence differs between the expert called by the prosecution, Ms Harkin and the expert called by the defence, Ms Gerhard, the defence submission is that I should prefer the evidence of the prosecution witness. I will return to this topic in due course.

   [3]     R v Colson [2021] SADC 150 at [30]-[35].

   Circumstantial evidence

6. The prosecution case relied substantially on circumstantial evidence.  The prosecution adduced five categories of circumstantial evidence to prove the appellant was the offender.  Much of the circumstantial evidence went unchallenged at trial.  A considerable body of evidence was agreed.  While there was lengthy oral evidence on DNA and telephone usage, at the conclusion of the trial the appellant submitted that he should be acquitted of all charges on the basis that the prosecution had failed to exclude three hypotheses consistent with his innocence.  Each hypothesis postulated a second unknown person being the offender.  As will be seen, each hypothesis implicitly accepted the majority of the prosecution case, including the telephone and DNA evidence.

7. The trial judge rejected each hypothesis as a reasonable possibility after considering the evidence as a whole.  The trial judge found the only rational conclusion on the evidence was that the appellant was the offender.  The appellant contends that the trial judge erred in finding the circumstantial evidence proved beyond reasonable doubt that he was the offender.  The trial judge could only find the appellant guilty if all the circumstances established by the evidence excluded an inference reasonably open on the evidence consistent with innocence.[4] 

   [4]     Shepherd v The Queen (1990) 170 CLR 573, 579; R v Hillier (2007) 228 CLR 618, 637; Fennell v The Queen (2019) 373 ALR 433, 452; Coughlan v The Queen (2020) 267 CLR 654, 674-675.

8. While the trial judge was required to, and did consider and reject all innocent hypotheses, it is significant for the disposition of the appeal that at trial the appellant limited his submissions to the three hypotheses referred to above.  The grounds of appeal need to be considered in light of what the trial judge was asked to determine.

   Reasons for verdict

9. The trial judge’s reasons for verdict comprehensively set out her Honour’s findings of fact. 

10. The trial judge found that the appellant’s phone records evidence he was awake and active in the general vicinity of Northgate from 11:26 p.m. on 4 September 2008 to 2:57 a.m. on 5 September 2008.  Shortly after 4:00 a.m. on 5 September 2008, the offender entered the complainants’ home in Northgate through the garage wearing long clothing, a broad-brimmed cricket hat, a face covering and black woollen gloves.  He confronted HH in the garage.  She screamed and ran inside the house into the bedroom occupied by the complainants’ young child.  The offender followed her into the house but went to the master bedroom where WH was sleeping.  The offender was brandishing a small silver handgun.  Using the handgun to threaten and intimidate the complainants, the offender committed a number of sexual offences against HH and WH.  During the ordeal the offender made numerous trips throughout the house to places where the complainants could not see him, ransacking the house.  He ultimately left in the complainants’ Ford motor vehicle, at around 4:48 a.m.  He stole items including jewellery, HH’s laptop computer, a digital camera, a black handbag containing perfume, HH’s wallet containing her bank and credit cards and driver’s licence, WH’s briefcase, a carton of cigarettes, and two mobile phones belonging to the complainants.  He left behind the white cricket hat he had been wearing.  The trial judge found the offender acted alone and that during the 45 minutes the offender was in the house no one else was present except WH, HH and their daughter. 

11. At about 5:30 a.m., after damaging and abandoning the Ford and leaving some items taken from the complainants’ residence, the offender was observed running and jumping fences in the Brompton area and leaving a trail of the complainants’ property as he did so.  Witnesses, with one exception, described the offender in terms broadly consistent with the appellant.   

12. From 5:38 a.m. the appellant was in telephone contact with Ms Borsi-Watson.  There were a number of telephone calls made between them which evidenced the appellant being in or about the Brompton area.  By the following day she was using the mobile phone handset stolen from the complainants’ residence. 

13. At trial a witness AG gave evidence.  He lived at an address in Northgate not far from the complainants’ residence.  He gave evidence of being woken by his doorbell ringing twice around 3:30 a.m. on 5 September 2008.  AG spoke to a man at his front door.  The man asked for a drink of water and directions.  AG described the man as Aboriginal, quite dark, with broad features, bushy eyebrows, dark curly-ish hair but little or no facial hair, in his late 20s, with a stocky athletic build wearing blue or black track pants and a hoodie.  AG’s evidence of the man’s appearance did not match the description given by WH in that he was not wearing a hat, scarf or gloves.  He was not brandishing a handgun. 

14. On 9 September 2008 the appellant was arrested in relation to possession of a firearm.  He was wearing black knitted woollen gloves and in possession of a loaded small silver handgun.  The appellant’s DNA was found on the left glove.  The appellant’s cousin, Ms Warren, had seen a small silver gun in his possession between the end of August and 8 September 2008. 

15. On 24 September 2008 police conducted a search of 25 Morley Street, West Richmond.  This was the address linked to Ms Borsi-Watson.  Police found more of the complainants’ property and a BMW owned by the appellant. 

16. The accused generally matched the description given by the complainants of the offender. There were differences in relation to his height and shoe size. However, the trial judge held that these differences were explicable given the circumstances in which WH and HH found themselves and the limited opportunity they had to make observations. An estimate of shoe size is often dependant on the style of the shoe, and the nature and circumstances of the observations. The offender told them on numerous occasions not to look at him and he was disguised.

17. The complainants described the offender as Caucasian. As a result of the scarf, hat and gloves very little of his skin was ever visible to them. They could see his eyes and the area between his eyes to his hat. The accused’s skin tone is not very dark. His eyes are hazel. Taking into account those visible features alone, the trial judge found that describing the appellant as Caucasian was not inconsistent with his actual appearance.

18. The trial judge found that height is notoriously difficult to approximate. An estimate given by a person confronted by a stranger in their house in the early hours of the morning, as HH was, could only ever be a guide. The estimates were not inconsistent with the appellant’s height of five foot eight inches in shoes.

19. The appellant’s DNA was found in the hat worn by the offender.  The DNA was in an area of the hat where it is to be expected DNA would be found if it had been worn by the appellant, namely, the inner head band. The hat was found inside the house. WH and HH were also contributors to the DNA found on the hat.  The contribution to the DNA profile by the fourth contributor was a very small percentage of the total contribution. While it was not possible to be sure whether the appellant’s DNA came to be on the hat by primary, secondary or tertiary transfer, it is likely that WH and HH directly left deposits of their DNA on the hat. The trial judge considered the hat to be quite distinctive and unlikely to be the sort of hat that is passed around like a baseball cap.

20. The trial judge found that on 9 September 2008 the appellant was in possession of a silver handgun that, with the exception of the handle that WH did not have an opportunity to see, was identical to that described and identified by WH.  The appellant had this handgun in his possession for some time prior to 9 September 2008.  It had been seen in his possession by Ms Warren from around the end of August. 

21. As the offender was wearing gloves there was limited opportunity to leave his DNA or fingerprints in the complainants’ residence.  While the appellant’s DNA was not excluded from the DNA located on the steering wheel and the gear lever of the car, as a result of which it formed part of the circumstantial case, it was not treated by the trial judge as having much weight.  Although DNA from the accused was not found on the backpack at Ms Borsi-Watson’s house, this was explicable if the offender was wearing gloves and had a limited opportunity to go through the bag. The trial judge found that when the accused was arrested on 9 September 2008, he was wearing black woollen gloves and he remained in custody between that date and 24 September 2008, when police found the backpack at 25 Morley Street.  

22. At trial neither the prosecution nor the trial judge relied upon AG’s evidence.  While the trial judge accepted the possibility that the person at AG’s front door at 3:30 a.m. on 5 September 2008 was not the appellant, that did not leave her with a reasonable doubt as to his guilt. 

1. The trial judge concluded that the evidence satisfied her there was no rational hypothesis consistent with the innocence of the appellant. Her Honour rejected each of the three defence hypotheses while directing herself that the appellant bore no onus of proof.  Her Honour held:[5]

   The proven circumstances of this case when considered as a whole satisfy me beyond reasonable doubt that the accused is the offender. The fact that the accused was in the area on that night, his DNA is in a hat used to disguise the offender and left at the scene inside the walk-in wardrobe. That the accused generally matches the description of the offender given by the complainants. That the accused has an identical gun and woollen gloves four days later and has had that gun in the days or weeks prior to being arrested. That he is connected to Stacey Borsi Watson where some of the property was found and that she was using the phone stolen from the complainants the following day. That the accused was in contact with her on the night of and early hours after the offending. That there does not appear to be any phone usage by the accused during the offending but that at a time when a person is running around in Brompton and dropping items from the thefts at the complainants’ house, he is making phone calls in rapid succession from that area. That the phone usage and location support a finding that he has driven away from that area but maintained contact with Stacey Borsi-Watson over the next few hours.

   [5] R v Colson [2021] SADC 150 at [227].

   Grounds of appeal

2. There are essentially four grounds of appeal. 

3. First, that the verdict was unreasonable and cannot be supported having regard to the evidence.  The appellant submitted that, even allowing that a single item of circumstantial evidence could bolster other items of circumstantial evidence so as to prove beyond reasonable doubt an accused’s guilt, in this case each strand in the rope was so weak the circumstantial case could not be proved by other equally weak strands of circumstantial evidence.  On a proper analysis of the evidence the appellant submitted the trial judge should have found that there remains a reasonable hypothesis consistent with his innocence, namely, that someone else was the offender and that there is a real possibility the offender was Caucasian. 

4. Second, that the trial judge’s reasons are inadequate.

5. Third, that the reasoning of the trial judge in relation to intermediate findings of fact do not provide sufficient support for verdicts of guilty beyond reasonable doubt. 

6. The appellant argued grounds 2 and 3 together. 

7. Fourth, that the trial judge failed to properly assess the evidence in light of the significant forensic disadvantage to the appellant.

8. It is convenient to address the grounds seriatim, and grounds 2 and 3 together as this was how the appellant proceeded.

   Ground 1:  the verdict was unreasonable and cannot be supported having regard to the evidence

9. The function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground was settled by the High Court in M v The Queen.[6]  On this ground, the function of the court is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried.  Rather, the function to be performed by the court is to determine for itself whether the evidence is sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.[7]  The reasoning in the joint judgment in M establishes that the question which the court must ask itself, when performing that function, is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  That question being one of fact, the court must decide the question by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand.[8]

   [6] [1994] HCA 63, (1994) 181 CLR 487.

   [7]     Dansie v The Queen [2022] HCA 25 at [7]; (2022) 274 CLR 651, 657.

   [8]     M v The Queen [1994] HCA 63, (1994) 181 CLR 487 at 492 and 493.

10. The Court in M went on to say:[9]

    It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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 court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

    [Citations Omitted].

    [9]     M v The Queen [1994] HCA 63, (1994) 181 CLR 487 at 492 and 493.

11. More recently, in Dansie v The Queen the High Court made the point that where a criminal trial is by judge alone, undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the court of appeal from the proper performance of the assessment required of it by s 158(1)(a) of the Criminal Procedure Act 1921 (SA). That is because the function to be performed by the court of appeal is to determine for itself whether the evidence is sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence.[10]  This is not to say, however, that the trial judge’s reasons are irrelevant.  On the contrary, an analysis of the trial judge’s reasons, and the criticisms made of the reasons, is often a useful step in the appeal court’s evaluation of the evidence.  The important point is to appreciate that the ultimate issue, however, involves the appellate court’s own assessment of the evidence.   

    [10]   Dansie v The Queen [2022] HCA 25 at [16], (2022) 274 CLR 651, 661.

12. In Dansie v The Queen the High Court said:[11]

    Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

    [11] [2022] HCA 25 at [16], (2022) 274 CLR 651, 661.

13. Where the court of appeal is hearing an appeal from a verdict delivered by judge alone, the advantage that a trial judge might have had over the court of appeal, by reason of having seen and heard the evidence at trial, will vary from case to case depending on the form in which the evidence was adduced at trial and the nature of the issues that arose at trial.  In a case where the prosecution case is circumstantial, where the evidence adduced by the prosecution is largely uncontested, and for the most part in the form of written statements of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.[12] 

    [12]   Dansie v The Queen [2022] HCA 25 at [17]; (2022) 274 CLR 651, 661.

14. It is critically important in considering a circumstantial case that all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[13]  Often enough in a circumstantial case, there will be evidence of matters which, when looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused.  But neither at trial nor on appeal is a circumstantial case to be considered piecemeal.[14]  By way of example, the quality of evidence of identification may be poor, but other evidence may support its correctness.  In such a case, whether a verdict of guilty can be entered or not depends upon an assessment of the evidence as a whole rather than considering each piece of evidence in isolation.   In a case depending on circumstantial evidence, one circumstance should not be rejected because, when considered alone, no inference of guilt can be drawn from it.  It is well established that consideration must be given to the weight of the united force of all the circumstances put together.[15] 

    [13]   Fennell v The Queen (2019) 373 ALR 433, 452 at [48].

    [14]   R v Hillier [2007] HCA 13 at [48], (2007) 228 CLR 618, 638.

    [15]   R v Hillier [2007] HCA 13 at [46] and [48], (2007) 228 CLR 618,637-638, citing Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535

15. That is the proper approach in considering ground 1 of the appeal.  This is important because some of the appellant’s complaints relate to matters not relied upon by the prosecution or matters of marginal relevance only.  Even if we conclude there is merit in the appellant’s challenge to one or more of the particulars of this ground of appeal, a consideration of the whole of the evidence is necessary in order to determine whether the verdict of guilty in relation to each of the counts charged is infected by appellable error such that the Court should be satisfied that a miscarriage of justice has occurred justifying setting aside the guilty verdict. 

16. The appellant submitted that, even when considered in its totality, each strand of the evidentiary rope is so weak that, notwithstanding all the other evidence relevant to identification, the circumstantial case remains so weak that the Court cannot exclude a reasonable hypothesis consistent with innocence. 

17. We turn to consider the particular complaints on ground 1.  As foreshadowed, because the appellant’s submissions tended to focus upon a critique of the trial judge’s reasons in relation to various items of evidence, we have generally approached this ground by commencing with an analysis of the criticisms made before addressing more directly our own assessment of the evidence. 

    DNA evidence

18. The appellant submitted the trial judge erred in relying on the DNA evidence concerning the cricket hat, the steering wheel and gear lever, the gloves and the backpack.

19. The appellant submitted that the presence of his DNA on the cricket hat is, in the absence of other evidence about the hat, of little or no weight or relevance.  He submitted that the evidence of the DNA found on the hat does not inculpate him. He submitted that trial judge erred in reasoning to the contrary given that there were at least five people who contributed to the profiles on the hat; that the hat had a nametag of P Kenny; that in assessing the weight or use of the evidence of the DNA on the hat the trial judge had to consider that the presence of an individual’s DNA does not mean that the individual had any connection with that item or ever touched that item and that the presence of DNA cannot prove how or when the DNA was deposited on an item. Further, the appellant submitted that the trial judge erred in finding that the hat was unlikely to be the sort of hat that is passed around in the absence of any evidence to support that conclusion, which was contradicted by the evidence of the number of contributors to the DNA profiles found on the hat; and that the trial judge effectively reversed the onus of proof by suggesting that an explanation had not been given for the appellant’s DNA being on the hat in circumstances where the onus was on the prosecution to exclude innocent transfer of DNA.

20. Apart from that penultimate complaint, the appellant’s criticism of the trial judge’s reliance on the evidence of the appellant’s DNA on the cricket hat is misplaced. The hat was found in the complainants’ house.  WH gave evidence the hat was worn by the intruder.  While the appellant accepts the evidence that some part of the mixed profile of the DNA found on the hat had a high probability of being donated by him, nonetheless he submitted the evidence could not exclude the possibility that the appellant’s DNA was present on the hat through secondary or tertiary transfer, or had been transferred at a much earlier date.

21. In our view that submission misunderstands the relevance of the evidence of the appellant’s DNA on the hat. The prosecution did not conduct its case on the basis that the appellant’s DNA on the cricket hat was an indispensable link in the chain of proof identifying him as the offender.[16] Rather, the finding of the appellant’s DNA on the cricket hat, identified by WH as being worn by the intruder and subsequently found in the complainants’ home, was merely a strand in the circumstantial case that had to be assessed with the other circumstantial evidence and afforded such weight as the trial judge considered justified.  On the circumstantial case it is relevant that a hat, identified as being worn by the offender in the complainants’ residence that night, has the appellant’s DNA deposited on it. While that evidence is not conclusive proof that the appellant was the offender, it is consistent with that hypothesis and constitutes a relevant evidentiary strand in the prosecution’s circumstantial case. It is not to be considered in isolation, but together with the other strands in the whole circumstantial case. The appellant’s complaint that the trial judge effectively reversed the onus of proof in holding that no explanation had been given for the appellant’s DNA being on the hat cannot be justified.  The observation is made in a context where the trial judge is addressing the question of whether there is a reasonable hypothesis consistent with innocence given that no innocent explanation for the presence of the appellant’s DNA on the hat was advanced by him. The observation is by way of introduction to the trial judge’s consideration of whether there is an innocent explanation for the appellant’s DNA on the hat. Her Honour then canvasses possible explanations for the presence of the appellant’s DNA on the hat, noting the expert evidence of the potential for false inclusion of the appellant. That does not involve a reversal of the onus of proof.

    [16]   Fitzgerald v The Queen [2014] HCA 28, (2014) 311 ALR 158.

22. Little, if any, weight attaches to the trial judge’s observation that the hat is not of a kind that is passed around. While it is not entirely clear what the trial judge meant by this observation, it would seem that she had in mind that a broad brimmed cricket hat is generally used by its owner for playing cricket, rather than being a fashion item that might more naturally be shared with others.  In any event, no evidence was required to support that observation because it is an observation that the trial judge arrived at as a result of ordinary human experience which she brings to the task of fact finding in a trial by judge alone.  It was a finding open to the judge. But, without demonstrating error on the part of the trial judge as the finder of fact, even in a circumstantial case it is a finding which does little to prove the circumstantial case. Its probative weight is slight at best. However the trial judge did not err in weighing that evidence with the other circumstantial evidence in deciding whether she was satisfied beyond reasonable doubt that the only possible explanation for the presence of the appellant’s DNA on the hat was that he was wearing it when he committed the charged offences.

23. The second category of DNA evidence of which the appellant complained is the evidence of the appellant’s DNA on the steering wheel and gear lever of the Ford. As best we understand the appellant’s submission, it was that this evidence is not probative of a fact in issue and the trial judge erred in affording it any weight in evaluating the circumstantial case.  We do not accept this submission. The forensic scientist Ms Harkin considered the DNA testing was inconclusive. There was not enough information to include or exclude the appellant. This evidence was not relied upon by the prosecution, however the trial judge weighed it in assessing the circumstantial case. There was no error in doing so. It was open to the trial judge to find that the testing did not exclude the appellant as a contributor. That finding was weighed by her Honour in reaching her verdict. So much was conceded by the appellant’s counsel at trial. As it was, the trial judge gave the evidence little weight in arriving at her verdict. 

24. The third category of DNA was that found on the woollen gloves seized from the appellant on 9 September 2008. The appellant make the same complaint concerning the use of this evidence by the trial judge. The only DNA found on the gloves belonged to the appellant. That was unsurprising. The probative significance of the appellant’s DNA on the gloves is that it made it unlikely that the gloves had been worn by someone other than the appellant. This was relevant given that when the gloves were seized the appellant was also found to be in possession of a small silver handgun. WH had described the offender as wearing black woollen gloves and holding a small silver handgun.

25. The fourth category of DNA evidence is a backpack belonging to the complainants. The basis of the appellant’s complaint in relation to this evidence was unclear. The backpack was found at the Morley Street address associated with Ms Borsi-Watson on 24 September 2008. The backpack was found to contain items stolen from the complainants’ residence. Testing disclosed evidence for the inclusion of Ms Borsi-Watson in the profile obtained from the backpack, but it excluded the appellant. The appellant submitted that the exclusion of any DNA evidence linking him to the backpack is cogent evidence excluding him from any connection with 25 Morley Street. Unsurprisingly the trial judge did not use this evidence as a strand in the circumstantial case against the appellant. Her Honour referred to it only in the context of excluding any reasonable hypothesis consistent with innocence.  The trial judge found that the absence of the appellant’s DNA on the backpack was explicable if the offender was wearing gloves and had a limited opportunity to go through the bag.  Such reasoning left open an inference consistent with the appellant’s guilt given the trial judge’s satisfaction that the offender had been wearing black woollen gloves when he entered the complainants’ residence and the appellant was wearing gloves that matched that description when arrested on 9 September 2008.  Thereafter he was in custody until the police found the backpack on 24 September 2008 at Morley Street.  Accordingly the absence of the appellant’s DNA on the backpack is neutral. 

26. Contrary to the appellant’s submission, Ms Harkin did not give evidence that gloves would not prevent DNA being deposited on objects by touching them. Rather, her evidence, at its highest, was that she could not exclude the possibility that a knitted glove might not act as a barrier to the deposit of DNA from the skin of the wearer.[17]

    [17]   T325-326.

1. We do not accept the appellant’s submission that there was no evidence linking him to the Morley Street premises.  His BMW was found by police at that address when they undertook the search. This is another instance of the appellant focusing on a single strand of circumstantial evidence in isolation. As explained earlier, that approach is flawed and impermissible.

   The pistol

2. The appellant submitted that the trial judge was in error in finding that the handgun identified by WH in the pistol photograph array was identical or very similar to the silver pistol brandished by the offender.  There is no issue the offender was carrying a silver handgun.  The appellant submitted there are two reasons why the evidence does not support a finding the gun seized from the appellant on 9 September 2008 was the weapon used by the offender at the complainants’ residence.  First, the pistol seized from the appellant when arrested on 9 September was not identified by WH in the photo array when asked if he could identify the pistol wielded by the offender.  Second, the appellant submitted that the pistol seized was not silver but blue.  The appellant submitted, absent a presumption that he was the offender, there is no relevance to his possession of a pistol on 9 September 2008 unless there is proof it is the same pistol used by the offender.  For the reasons set out above, the appellant submitted that is not so and the trial judge erred in finding that the handgun seized from the appellant was in all senses identical.  However, the finding by the trial judge that the gun selected by WH in the photo array was similar in appearance to the pistol seized from the appellant on 9 September has not been demonstrated to be in error. 

3. Contrary to the appellant’s submission, the pistol was not blue.  That submission appears to be based on an artefact of the photograph in Exhibit P26 which was taken with the firearm on the bonnet of a police car.  Later photographs[18] clearly establish that the firearm seized from the appellant on 9 September 2008 was silver.  The firearm used by the offender was described by WH as a small silver handgun with a squarish barrel and a squarish little hole in it.[19]  The trial judge found the firearm selected by WH from the photo array and the firearm seized from the appellant were very similar in appearance.  That finding was open on the evidence.  It is the coincidence of the features possessed by the firearm seized from the appellant and the firearm described by WH as being used by the offender which gives this evidence its probative force.  The obvious similarity supports a conclusion that the trial judge’s finding that it is the same weapon is properly open, with the result that the appellant’s submission can be dismissed. 

   [18]   Exhibit P49.

   [19]   R v Colson [2021] SADC 150 at [84].

4. In addition, on appeal, the appellant submitted that the evidence of his possession of the pistol was, contrary to s 34P of the Evidence Act 1929 (SA), inadmissible discreditable conduct evidence. However, at trial the prosecution did not attempt to use the evidence of the appellant’s possession of the handgun as some form of propensity reasoning or discreditable conduct evidence. The appellant’s submission in this respect must be rejected.

   Description evidence

5. The trial judge found that the appellant generally matched the description given by WH and HH of the offender, although there were differences in relation to his height and shoe size.  The trial judge considered those differences explicable given the circumstances in which the observations were made and the limited opportunity WH and HH had to make them.  Both of them described the offender as being Caucasian.  The appellant submitted that the trial judge erred in finding that the appellant generally matched the description they provided, given that the appellant is of Aboriginal descent.  We are not satisfied that this demonstrates error on the part of the trial judge.   The judge found that the offender was disguised and as a result of which very little of his face was visible.  WH and HH could only see his eyes and the area between his eyes and his hat.   To describe a person as being Aboriginal or Caucasian is not necessarily a description of a particular physical appearance but rather is an identifier of ethno- and socio-cultural heritage.  There are many dark skinned Caucasians and light skinned Aboriginals.  The trial judge had the opportunity to view photographs of the appellant taken in 2007 and 2008 which disclose an appearance not inconsistent with the complainants’ description of the offender as having fair skin tone.  The trial judge also had extensive opportunity to observe the appellant in the course of the trial and she considered his skin tone was not very dark.  Contrary to the appellant’s submission, the complainants’ evidence of their observations of the appearance of the offender was not irreconcilable with the appellant.  Further, contrary to the appellant’s submission, the trial judge did not rely on the presence of similar clothing to that worn by the offender at residences with which the appellant was associated.

   The links to Morley Street and Ms Borsi-Watson

6. Apart from the fact that the appellant knew Ms Borsi-Watson, the appellant submitted there is nothing to connect him to the address at which she resided at Morley Street. Moreover, the evidence of the absence of his DNA on the backpack found at Morley Street on 24 September 2008 gives rise to the real possibility the appellant was not the offender.  Accordingly, the appellant submitted the trial judge erred in placing any reliance on the fact that items stolen from the complainants’ residence were found at the Morley Street house.  However, this submission is misplaced.  The trial judge did not find that the appellant was present at the Morley Street house.  Rather, the trial judge, while acknowledging that there was no evidence of the appellant’s DNA on the backpack taken from the complainants’ residence and found at Morley Street on 24 September 2008, relied upon the evidence that the BMW owned by the appellant was found there together with other items stolen from WH and HH.  That evidence also was weighed by the trial judge together with the rest of the circumstantial evidence, including that the appellant knew Ms Borsi-Watson, who lived near Brompton, was in contact with her in the early hours of the morning of 5 September 2008, shortly after the offending occurred at Northgate, and she was using WH’s telephone handset by the next day.  As we have already addressed, the trial judge considered the absence of the appellant’s DNA on the backpack did not exclude the appellant as the offender.  The trial judge found the absence of the appellant’s DNA on the backpack was readily explained by him wearing gloves.  That finding was open on the evidence.

   Telephone evidence

7. The appellant submitted that the trial judge erred in relying on the telephone evidence or in the weight given to the telephone evidence.  The trial judge found that, relying on the appellant’s telephone records, he was in the vicinity of the complainants’ residence late on the evening of 4 September 2008; he was awake and active in the early hours of 5 September 2008; and was in the general area of Brompton at a time when he made a series of telephone calls from 5:38 a.m. to 5:52 a.m. 

8. The appellant accepted that the evidence is that his telephone was used in the Walkley Heights area at 11:33 p.m. on 4 September and continued in use intermittently until 2:57 a.m. on 5 September.  However, the evidence cannot establish the location of the appellant’s telephone between 11:33 p.m. and 2:57 a.m.  The telephone records establish the appellant’s phone was used in the Ovingham area at 5:38 a.m., but the evidence cannot establish the precise location from which the calls were made.  The appellant submitted that the police were unable to track the user of the appellant’s telephone between Walkley Heights and Ovingham; that there was no evidence of use at the time of the offending; and that the telephone use did not prove that the appellant was active,[20] as opposed to awake.  The appellant further submitted that there was evidence he was residing at that time at 13 Salisbury Street, West Richmond, and there was no evidence to suggest that the appellant was excluded from being at Salisbury Street from a time not long after his phone was recorded as being used through the Walkley Heights tower at 11:33 p.m.

   [20]   The trial judge also used the term “moving around”.  See R v Colson [2021] SADC 150 at [124].

9. We do not accept these submissions.  

10. The evidence the trial judge relied on needed to be weighed in a substantial circumstantial case.  The inability to plot a route was irrelevant.  The prosecution case did not rely upon a particular route travelled by the appellant as part of its circumstantial case.  Accordingly, the absence of an identifiable route does not undermine evidence the trial judge did rely upon.  The evidence of phone use was consistent with the appellant being the offender given that he did not use his phone during the 50‑minute period the offending occurred, having used it before and after, very late at night, and in the early hours of the morning of 5 September 2008.  While there was no evidence of the appellant’s location at the time, there was further evidence of phone contact between the appellant’s phone and Ms Borsi-Watson’s phone during this period.  There was telephone contact between their phones on 4 September at 11:33 p.m., 11:35 p.m. and 11:36 p.m., and on 5 September at 12:47 a.m., 1:11 a.m., 2:00 a.m., 2:19 a.m., 2:57 a.m., 5:38 a.m., 5:39 a.m., 5:40 a.m., 6:25 a.m., 6:26 a.m., 6:28 a.m. and 6:31 a.m.  During this time the Colson phone was utilising towers at Walkley Heights, Ovingham, Ridleyton, Mile End and Marleston.  The trial judge’s conclusion that the appellant was active was open on the evidence if her Honour’s language can be understood to mean no more than actively speaking on the phone.  Even if the reference is construed to mean moving around, that is not inconsistent with the evidence if regard is had to the wider period from 5:38 a.m. to 6:31 a.m. on 5 September 2008.  The absence of evidence of a precise location did not deprive the evidence of its probative value.  Further, the unchallenged evidence was that the appellant was using his phone near the Ovingham tower at 5:38 a.m.  This is a region that includes Brompton, where the Ford and other property belonging to WH and HH was found, and excludes West Richmond.[21]  Accordingly, the evidence excludes him using his mobile phone at that time at Salisbury Street. However, his phone making a flurry of calls to Ms Borsi-Watson’s phone in the hour from 5:38 a.m. in the vicinity of Ovingham, Ridleyton, Mile End and Marleston, is evidence, when weighed with the other evidence, capable of implicating him in the offending. 

    [21]   Exhibits P62, P22 and P23.

11. In all the circumstances we do not consider that there has been specific error demonstrated in the trial judge arriving at her guilty verdict.  However, we are required to consider whether on our own independent assessment of the whole of the evidence a reasonable hypothesis consistent with innocence is excluded.

12. Accordingly, it is necessary to consider the circumstantial evidence as a whole. The five categories of circumstantial evidence establish the following:

    (i)The appellant’s mobile phone number 0428 878 267 was being used in the north-eastern suburbs in the hours prior to the offending and, in particular, was in contact with the telephone used by Ms Borsi-Watson. The appellant’s phone was not in use during the period of the offending. This is relevant as evidence which tends first, to place the appellant near Dumfries Ave, Northgate, late on the night of 4 September. Second, it is consistent with the appellant being the offender as his phone was not in use during the entire period the offending occurred. Third, he resumed using the phone in the early hours of the morning of 5 September 2008, at around the time the stolen Ford was abandoned near Brompton. That tends to prove the appellant was the driver of the Ford when it became undrivable at Brompton. Fourth, the telephone evidence also proves a series of phone calls made from the phone of Ms Borsi-Watson to the appellant’s phone in the early hours of the morning of 5 September 2008 before the commencement of the offending.  Later that morning the appellant’s phone was being used near the Morley Street address associated with Ms Borsi-Watson. That evidence tends to prove the existence at that time of an association between the appellant and Ms Borsi-Watson which is relevant when weighing the evidence that by 6 September 2008 she was in possession of WH’s phone which had been stolen by the offender. On 24 September 2008 a BMW registered to the appellant was found at 25 Morley Street.  A search of the property disclosed items taken from the complainants’ residence on 5 September 2008.  Those items included WH’s mobile phone which Ms Borsi-Watson commenced using with her own sim card on 6 September 2008; a camera belonging to the complainants which was used to take photographs on 11 and 12 September 2008 depicting Ms Borsi-Watson; and a backpack which contained jewellery and other items stolen from the complainants.  This evidence tends to prove that the stolen items were at Ms Borsi-Watson’s house, or at least in her possession, no later than 6 September 2008.  This points to the offender being someone associated with her at the latest by the day following the offending.  The possibility that the offender was the appellant on this basis is not excluded by the absence of his DNA on those items given he was wearing gloves. Fifth, this evidence must be weighed with the telephone evidence that tends to prove communication between the appellant and Ms Borsi-Watson shortly after the offender left Dumfries Avenue. This is critical evidence because the mobile phone tower evidence establishes that between 5:38 a.m. and 5:52 a.m. on 5 September 2008 the appellant was in that part of Brompton where the offender was observed by witnesses running from the broken-down Ford. That evidence makes it highly improbable that the offender was someone other than the appellant.

    (ii)The accused’s possession of a small silver handgun and black knitted gloves on 9 September 2008 when he was searched by police.  Evidence was adduced from the appellant’s cousin, Maxine Warren, that between the end of August 2008 and 8 September 2008 she had seen a handgun in the appellant’s possession.  WH gave evidence of the offender being armed with a small silver handgun that resembled a handgun he identified in an array of photographs.  While WH did not select from the array the pistol the appellant had in his possession on 9 September 2008, the trial judge found the gun he did identify looked like the gun found in the appellant’s possession.  This gun also had an appearance consistent with the handgun described by Ms Warren.  In addition, WH described the gloves he observed being worn by the offender as black knitted woollen gloves.   The evidence of the similarity in appearance of the handgun and black woollen gloves seized from the appellant and the handgun and gloves described by WH and the handgun described by Ms Warren tends to prove that the handgun and black woollen gloves seized from the appellant on 9 September 2008 were used by the offender in Dumfries Avenue.

    (iii)The wide-brimmed cricket hat seized by police from the walk-in-wardrobe in the complainants’ bedroom on 8 September 2008 matched the description given by WH as being worn by the offender during the commission of the charged offences.  This hat did not belong to WH or HH.  They had not seen it before 5 September 2008.  The evidence establishes that the appellant was a contributor to two DNA profiles obtained from the headband of the cricket hat. Unsurprisingly, DNA profiles of WH and HH were also found on the hat.  At trial the forensic scientist, Ms Harkin, gave evidence that the possibility could not be excluded that the DNA found on the head band was the result of secondary or tertiary transfer that had been left on the hat long before 5 September 2008.  However, this is not a case like Fitzgerald v The Queen[22] where the DNA evidence was an indispensable link in a chain of evidence proving guilt.  Rather, in this case the DNA evidence in relation to the hat is merely a further strand of circumstantial evidence tending to prove the appellant’s guilt. The evidence left open the possibility that the appellant’s DNA was deposited on the hat during the course of the offending. While not the only possibility, that inference is supported by the hat being found in the complainant’s residence in the days following the offending with his DNA deposited on it. This tends to prove the appellant’s guilt because of the improbability that another person who left the hat with the appellant’s DNA in the complainants’ residence was the offender. In addition, DNA obtained from the black woollen gloves the appellant was wearing when he was arrested on 9 September 2008, and which produced a single source profile matching the appellant, was a further strand of circumstantial evidence making it first, less likely that the appellant had obtained the gloves and the firearm from the real offender; and second, giving further weight to the evidentiary inference that the appellant was the offender.

    (iv)That the appellant’s appearance generally matched the description given by WH and HH of the offender, and the descriptions of the man seen running from the broken-down Ford were, with one exception, consistent with the appellant.  Descriptions of the offender were given by the complainants and witnesses in the Brompton area, where a man was seen running through driveways and jumping fences on the morning of 5 September 2008 near where items belonging to the complainants were later found.  Again, this evidence provided an evidentiary link between the offender and the person observed running from the stolen Ford vehicle in the Brompton area as a result of finding items stolen from the complainants’ residence in the Ford and in the streets down which the offender fled. This evidence is the basis for an inference to be drawn that the offender was alone in Brompton, on the run and without transport, and in possession of property stolen from the complainants’ residence at around 4:48 a.m. on 5 September 2008. These are further strands in the circumstantial case which tend to prove the appellant’s guilt.

    (v)That WH and HH gave evidence there was only one intruder in their home.  This excludes as a reasonable possibility the hypothesis that the appellant was in their house but did not enter the master bedroom. As the trial judge found,[23] there is no evidence from which such an inference could be drawn. There was no discussion, talking, whispering or sighting of anyone else in their residence. The offender did not speak to anyone else. WH did not see anyone else who had entered the Ford. No car doors were heard, no other car was heard driving off. It was not reasonably possible that another person was present but remained silent and unseen for the 45 minutes during which the offending occurred.

    [22] [2014] HCA 28, (2014) 311 ALR 158.

    [23]   R v Colson [2021] SADC 150 at [199].

13. This analysis of the circumstantial case satisfies me that the appellant was the offender.  

14. However, as this case is a circumstantial case, consideration is required of the three hypotheses propounded by the appellant and whether all of them can be excluded as a reasonable possibility. In R v Baden-Clay the High Court said:[24] 

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

    [Citations omitted].

    [24] [2016] HCA 35 at [47], (2016) 288 CLR 308, 324.

1. We do not consider any of the three hypotheses is a reasonable possibility. 

2. The first hypothesis depends first, on the offender being with the appellant in the complainants’ residence, without the appellant entering the master bedroom, and second, being with the offender in the Ford when it was abandoned in the early hours of the morning of 5 September 2008.[25]  We exclude this hypothesis as it is inconsistent (i) with the evidence of HH that only one person entered the garage when she was present; (ii) with the evidence of WH and HH that they did not see or hear anyone else in the residence throughout the 45 minutes that the offender was in the residence, going from room to room and back into the garage; (iii) with the absence of evidence of WH seeing anyone else in the garage or the Ford when the offender took him into the garage; and (iv) with the evidence of the witnesses at Brompton that only one person was seen fleeing the vehicle and running through the surrounding streets. 

   [25] R v Colson [2021] SADC 150 at [214].

3. The second hypothesis depends on the offender being at the complainants’ residence without the appellant, who subsequently met the offender when he was driving the stolen Ford and travelled with him to Brompton.[26]  We exclude this hypothesis as it is inconsistent with the evidence of the appellant’s telephone records that discloses that his phone was not used, either to make outgoing calls or to receive incoming calls, between 4:48 a.m., which was the earliest the offender could have driven away, and 5:38 a.m.  If the appellant was not at the complainants’ residence but met the offender later before they travelled to Brompton in the Ford, he must have either phoned the offender or the offender phoned him in order to arrange their assignation, unless it had been pre-arranged or the appellant and the offender spoke on the telephone after 5:38 a.m.  It seems highly unlikely that their meeting could have been pre-arranged because the offender would not have known before he entered the complainants’ residence that he was going to steal WH’s car. That they spoke on the telephone before the Ford broke down can be excluded as a real possibility by reference to the phone records. This hypothesis is also inconsistent with the evidence of the witnesses at Brompton that only one person was seen fleeing the vehicle and running through the surrounding streets, albeit that one of those eyewitnesses did give a somewhat different description of that one person from the other witnesses. But what is significant in an evidentiary sense is that none of the witnesses saw two men fleeing the scene.

   [26] R v Colson [2021] SADC 150 at [214].

4. The third hypothesis depends on the offender meeting the appellant at Brompton without ever being at the complainants’ residence.[27]  This is essentially the same as the second hypothesis except that it posits the offender meeting the appellant at Brompton rather than earlier.  We exclude this hypothesis for the same reasons we excluded the second hypothesis, as well as some additional reasons.  It is inconsistent with the evidence of the appellant’s telephone records that discloses that his phone was not used between 4:45 a.m. and 5:38 a.m., and when he recommenced the use of his phone he only called Ms Borsi-Watson. If the appellant was not at the complainants’ residence but met the offender at Brompton in the Ford, he must have either phoned the offender or the offender phoned him in order to arrange their assignation, unless it had been pre-arranged.  But as discussed previously, that seems highly unlikely because the offender would not have known before he entered the complainants’ residence that he was going to steal WH’s car, and it is highly improbable that they would have pre-arranged to meet at the precise place the Ford broke down.  We also exclude as a reasonable possibility that the offender phoned the appellant after the Ford broke down in order to arrange for the appellant to meet the offender at Brompton, because the phone records do not show any phone call to the appellant.  Rather, they only show the making calls from 5:38 a.m. onwards.  Those same phone records also exclude as a real possibility the offender telephoning Ms Borsi-Watson who then phoned the appellant to arrange for him to meet the offender at Brompton, given the absence of any record of her calling him; this hypothesis is also inconsistent with the evidence of the witnesses at Brompton that only one person was seen fleeing the vehicle and running through the surrounding streets.

   [27] R v Colson [2021] SADC 150 at [214].

5. Having regard to the circumstantial and other evidence as a whole, and having excluded as not reasonably open on the evidence the only hypotheses consistent with the innocence of the appellant, we are satisfied beyond reasonable doubt of the appellant’s guilt.

6. We would grant permission to appeal on ground 1 but dismiss the appeal on that ground. 

   Grounds 2 and 3:  inadequacy of reasons and the reasons for intermediate findings of fact were insufficient to support the guilty verdicts

7. It is convenient to address grounds 2 and 3 together as that is how the appellant argued them.

8. The principles concerning the obligation to provide reasons were recently considered by the Court of Appeal in R v Lloyd as follows:[28]

   [28] [2023] SASCA 106 at [29]-[33].

   Section 7(4) of the Juries Act 1927 (SA) provides:

   If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.

   In R v Keyte Doyle CJ, with whom Williams and Wicks JJ agreed, held that s 7(4) impliedly requires a judge to give reasons for a verdict following upon the trial of a charge by judge alone. The failure to give adequate reasons is an error of law. Unlike similar provisions in other jurisdictions, s 7 does not prescribe requirements for the contents of the reasons for judgment.

   The principles applicable to the statutory obligation imposed on a judge to provide reasons are well settled. 

   In DL v The Queen Kiefel CJ, Keane and Edelman JJ, in considering an appeal from a criminal conviction, said that:

   The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

   … Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

   “Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”

   [Citations omitted].

   In Whisprun Pty Ltd v Dixon Gleeson CJ, McHugh and Gummow JJ said, albeit in the context of a civil trial, that a judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue.  Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

   [Citations omitted].

9. In R v Gjergji[29] Doyle J, as he then was, discussed those principles in the following terms:[30]

   It is accepted that a trial judge has an obligation to give reasons for the verdict reached, and that a failure to give adequate reasons may constitute an error of law. The rationale for this obligation is multi-faceted. The provision of reasons facilitates the appeal process. It promotes good decision-making. It enables the parties and the community more generally to understand why the judge decided the case the way he or she did, and in particular in the case of the losing party, enables that party to understand why their contentions and case were rejected. Related to this, reasons for decisions both promote their acceptability, and ensure a level of accountability or responsibility on the part of the judiciary. Reasons thus assist in the administration of justice, and promote confidence in the same.

   As to the content of the obligation to give reasons, what is adequate will depend upon the circumstances of a particular case. The reasons need not be elaborate or extensive. However, as a general guide, it will usually be necessary to state the grounds that have led the Court to prefer one conclusion to another in respect of disputed issues.

   Significantly, the content of the obligation to give reasons, and hence the adequacy of the reasons given, will fall to be considered by reference to the way in which the trial has been conducted, and by reference to the issues as identified by the parties. This is consistent with the rationale for the requirement to give reasons. The parties are entitled to know why they won or lost by reference to the issues they chose to put in dispute. The appellate process requires reasons in relation to the issues in dispute between the parties.

   There are limits to the relevance of the way in which the trial has been conducted, and the parties' identification of the issues. There may be some issues that arise on the evidence, and are so fundamental, that they require some mention or analysis by the trial judge even though not expressly adverted to by counsel. The point I make is merely that the content of the general obligation to give reasons must be considered in the context of the particular case, including by reference to the way in which the parties have conducted the matter and the issues they have chosen to put in issue.

   [Citations omitted].

   [29] [2016] SASCFC 101, (2016) 126 SASR 106.

   [30] [2016] SASCFC 101, at [55] – [58] (2016) 126 SASR 106 at 115-116.

10. Subsequently, those principles have been restated in Deng v The King.[31]

    [31] [2023] SASCA 35 at [79]-[81].

11. The adequacy of reasons will be informed by the issues at trial.  The adequacy of reasons must be assessed by considering the reasons as a whole. However, in this case the appellant’s complaint appears to address the issue of inadequate reasoning as opposed to inadequate reasons.[32] A complaint of inadequate reasoning, as opposed to inadequate reasons, is a complaint that a trial judge’s reasons do not support the verdict.  In R v Sexton Kourakis CJ explained the distinction in the following terms:[33]

    … The former is a complaint that it is not possible to discern how the judge rationally arrived at the determinative conclusions, and the latter is a complaint, in an appeal against conviction, that the reasons and intermediate findings of facts do not support a finding of guilt beyond reasonable doubt.  There is an understandable tendency to slip from a complaint that the reasons are inadequate to a complaint that the Judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict.  In the context of a criminal appeal against conviction pursuant to s 353 of the CLCA, the latter complaint may be an appeal on the ground that the verdict was unreasonable or not supported by the evidence, in which case it will result in an acquittal.  Alternatively it may be an appeal on the ground that there has been a miscarriage of justice because the reasoning actually employed does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence.  In such a case, there will ordinarily be an order for a retrial.  These grounds might be made good, or shown to be unfounded, by reference to matters of evidence or law which are not dealt with in the judge’s reasons.  

    [32]   JGS v The Queen [2020] SASCFC 48 at [205].

    [33] [2018] SASCFC 28 at [177].

12. The trial judge delivered extensive reasons.  Those reasons traverse each of the impugned grounds.  In our view grounds 2 and 3 overlap ground 1.  Nonetheless, they must be considered discretely.  The question of whether the trial judge should have had a reasonable doubt concerning the appellant’s guilt is closely related to, but not the same as, whether the trial judge’s reasons support the verdict of guilty.

13. This being a circumstantial case, the issue is whether the circumstantial evidence when considered as a whole explains the verdict.  That does not require a trial judge giving reasons for verdict to explain minutely every step in the reasoning process.[34]  In this case it was sufficient for the trial judge to identify the findings constituting the strands in the rope which resulted in the ultimate finding that the accused was guilty beyond a reasonable doubt. This fulfilled the trial judge’s obligation to give reasons sufficient to identify the main factual findings on which she relied to enable an appellate court to discharge its function and for the parties to understand the basis for the verdict.[35]

    [34]   Trussell v The King [2023] SASCA 5 at [196]; DL v The Queen [2018] HCA 26 at [33], (2018) 266 CLR 1 at [12] – [13].

    [35]   R v Lloyd [2023] SASCA 106 at [32].

14. Ground 2 contends that the trial judge’s reasons did not adequately explain: findings of fact based on the evidence of the appellant’s DNA being deposited on the cricket hat found at the complainants’ residence; identification of the offender on the basis of the descriptions provided by WH and HH; the description of the appearance of the pistol used by the offender and the pistol found in the possession of the appellant on 9 September 2008; the probative value of the telephone evidence in placing the appellant at the scene of the offending; and the evidence that the appellant’s DNA was not found on the backpack seized by the police from Morley Street premises on 24 September 2008 could be explained by him wearing gloves given the evidence of the forensic scientist, Ms Harkin.  Clearly, these are all matters addressed under ground 1.

15. Ground 3 contends that the reasoning of the trial judge is inadequate in that the reasons and intermediate findings of fact do not support the verdict of guilty.  This contention is based on the trial judge’s reasoning in relation to the appellant’s DNA on the cricket hat placing him at the crime scene; the trial judge’s reasoning that the deposits of the appellant’s DNA on the steering wheel and gear lever of the Ford supported the verdict of guilty; the trial judge’s finding that the pistol used in the offending was identical to the pistol seized from the appellant on 9 September 2008; the trial judge’s reasoning that the telephone evidence supported a finding that the appellant was active and awake in the intervening period between 11:33 p.m. on 4 September and 5:38 a.m. on 5 September 2008; the trial judge’s reasoning that the presence of similar clothing to that worn by the offender at residences with which the appellant was associated supported the verdict of guilty; the trial judge’s reasoning that the evidence of WH and HH that the offender was Caucasian supported the verdict of guilty when  the appellant is an Aboriginal man; and the trial judge’s reasoning that the items taken from the complainants’ residence found at Morley Street on 24 September 2008, including the backpack, supported the verdict of guilty given the absence of any evidence of his DNA on those items.  These were also matters traversed by ground 1. 

16. For the reasons that follow, we would dismiss grounds 2 and 3.  Much of the appellant’s criticisms of the trial judge’s reasons and reasoning suffers from the vice of dealing with the prosecution’s circumstantial case piecemeal.

17. The trial judge’s reasons provide the answer to the appellant’s complaints under these grounds.  The reasons are more than adequate to identify and explain the key findings and to demonstrate that the trial judge’s reasoning is logical and based on the evidence and her Honour’s findings of fact. 

18. The trial judge’s reasons address each separate topic of evidence in detail by making intermediate findings at [36] to [188], making and explaining formal findings of fact, including intermediate facts at [189] to [212], considering the three defence hypotheses at [213] to [216], and providing further explanation of her key findings at [217] to [226], before explaining her ultimate finding of guilt in relation to each of the charges at [227] to [229].

19. The trial judge, having found that the appellant generally matched the description of the offender given by the complainants, adequately explained her reasons for doing so and, in particular, adequately explained her reasons for so finding, notwithstanding what were submitted by the appellant at trial to be irreconcilable differences between his appearance and the descriptions given by the complainants in particular, their characterisation of his appearance as being Caucasian when he is Aboriginal.  We have dealt with this in relation to ground 1. 

20. The complaints in relation to the DNA evidence concerning the finding of the appellant’s DNA on the cricket hat and the appellant’s DNA on the steering wheel and gear lever of the stolen Ford, involve conflating distinct processes of reasoning. 

21. We have dealt with the evidence relating to the cricket hat in relation to ground 1.  Again, it is necessary to emphasise that this is not a case like Fitzgerald. The DNA evidence did not provide an indispensable link in a chain of reasoning leading to a verdict of guilty. The DNA evidence in relation to the hat was merely a piece of circumstantial evidence to be weighed with all the other evidence in the case. That is how the trial judge dealt with it. The trial judge acknowledged the qualifications that necessarily had to be considered in weighing that piece of circumstantial evidence. She did so at [204] to [206], [222] and [227]. The trial judge accepted that it is not possible to be sure whether the deposits of DNA on the hat had occurred by primary, secondary or tertiary transfer. Her Honour addressed the competing explanations for the existence of the appellant’s DNA profile on the hat before weighing that evidence in reaching the ultimate conclusion. The reasons demonstrate how the DNA profile on the hat was incorporated into the body of circumstantial evidence. There can be no valid criticism of the trial judge’s finding that the deposits of the appellant’s DNA found on the inner headband are consistent with the hat having been worn by the appellant.[36]

    [36]   R v Colson [2021] SADC 150 at [222].

1. The discrete treatment of the evidence of the appellant’s DNA on the gear lever and steering wheel was to explain how the trial judge used that evidence as being informative, to the extent that the DNA evidence did not exclude the appellant as having driven the stolen Ford.  In addition, the trial judge addressed the exculpatory use of the low levels of the appellant’s DNA found in the vehicle by reference to the appellant wearing gloves. As a result, there was limited opportunity for him to leave any deposit of DNA or fingerprints, either in the complainants’ residence or the Ford. The finding that the appellant’s DNA is not excluded from the DNA located on the steering wheel and gear lever formed part of the circumstantial case, although it did not weigh significantly in the trial judge’s verdict. 

2. The appellant’s complaints in relation to the trial judge’s reasoning concerning the use to be made of the telephone records involved the misconception that it was necessary for the prosecution to prove the route travelled by the appellant’s mobile phone on the night of the offending, and that the evidence established the appellant’s phone was at the scene of the offence or that the trial judge treated that evidence as placing the appellant at the scene of the offence.

3. The trial judge properly understood that it was neither the prosecution’s case, nor necessary to reach a verdict, for the evidence to establish the route travelled by the appellant’s mobile phone on the night of the offending.  Rather, the significance of the telephone evidence lay in it tending to prove that the appellant’s mobile phone was used in an area proximate to the complainants’ residence, and subsequently in an area proximate to where the stolen Ford had broken down and witnesses had observed the offender running away.  That evidence is helpfully summarised by the trial judge in a table at [134] of her reasons. It forms part of the basis for the inferences drawn by the trial judge at [218], [225] and [227] of her reasons, incorporating this evidence into the whole of the circumstantial case.

4. The appellant’s criticism of the trial judge’s finding that the pistol found on the appellant on 9 September 2008 was “identical” to the pistol described by WH as having been brandished by the offender in the bedroom of the complainants’ residence is misplaced.  It involves reading a single paragraph in the trial judge’s reasons in isolation from the rest of her extensive explanation of the probative value of the evidence concerning the pistol.  We have addressed this earlier in these reasons.  The trial judge made clear that she treated the two firearms as being very similar in appearance and approximately the same size, colour and shape, apart from the handle which WH could not see clearly. It was on this basis she said the firearm was “in all senses identical” to that described and identified by WH.  Read as a whole, the trial judge’s reasons make clear that her Honour is not treating the relevant evidence of observation of the appearance of the pistol as constituting unequivocal evidence that the two firearms were identical, nor does the trial judge’s reasoning rely on such a finding.  So much is made clear at [112] and by the finding at [223] of the trial judge’s reasons. 

5. The appellant’s criticism of the trial judge’s finding that the cricket hat was not of the type that is passed around[37] is also misplaced.  As explained earlier in these reasons, it was not necessary for the trial judge to expose a particular process of reasoning for this finding.  The finding was based on the trial judge’s reliance on her ordinary common experience as the finder of fact.

   [37]   R v Colson [2021] SADC 150 at [206].

6. We do not accept the appellant’s submission that the trial judge’s reasoning failed to explain how the appellant was linked to the discovery of items stolen from the complainants found later that morning in the Brompton area and at Ms Borsi-Watson’s place of residence on 24 September 2008. 

7. The trial judge’s reasons clearly explain how the appellant was linked to those items found in the Brompton area and the stolen Ford, which was abandoned by the offender and from which he was observed by various witnesses running from the scene. Each of those witnesses, with one exception, provided a description which matched that of the appellant, in circumstances where the telephone evidence placed him in that general area at 5:38 a.m.  We have already addressed the links to Ms Borsi-Watson, but it is clear she was in close contact with the person using the appellant’s phone that morning and in possession of WH’s phone by the following day, all of which were cogent items of circumstantial evidence pointing to the appellant being the offender.

8. Finally, we have addressed the appellant’s complaint concerning the trial judge’s finding that the appellant was active and awake in the hours between 11:33 p.m. on 4 September and 5:38 a.m. on 5 September 2008.  It is unnecessary to repeat the trial judge’s consideration of that evidence.

9. We would dismiss grounds 2 and 3.

   Ground 4:  forensic disadvantage

10. The appellant relies on two categories of error made by the trial judge in relation to forensic disadvantage.  First, he identifies evidence said to have been lost due to delay disregarded by the trial judge and second, a further error on the part of the trial judge in considering forensic disadvantage suffered by the prosecution as a result of the delay in the charges coming to trial. 

11. Section 34CB of the Evidence Act is intended to protect an accused person from the forensic disadvantage caused by lengthy delay in a charge coming to trial. It provides:

    (1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.

    Note— See Longman v The Queen (1989) 168 CLR 79

    (2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—

    (a)     explain to the jury the nature of the forensic disadvantage; and

    (b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.

    (3) An explanation or direction under subsection (2) may not take the form of a warning and—

    (a)     must be specific to the circumstances of the particular case; and

    (b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.

12. The operation of s 34CB has been considered in a number of decisions of this Court.[38] The rationale for a direction under s 34CB is to warn the jury of the significant forensic disadvantage suffered by a defendant attributable to the passage of time between the alleged offending and the trial. The direction is intended to operate as a safeguard against a wrongful conviction of the defendant.[39] The direction required by s 34CB(2) must be specific to the circumstances of the particular case but it is not a warning.[40]

    [38]   See R v Cassebohm [2011] SASCFC 29 at [14]-[32], (2011) 109 SASR 465, 470-475 per Doyle CJ (with whom White and Peek JJ agreed); R v Maiolo (No 2) [2013] SASCFC 36 at [172]-[201], (2013) 117 SASR 1, 53-62 per Peek J (with whom Kourakis CJ and Stanley J agreed); R v S [2015] SASCFC 179 at [62]-[88] per Blue J (with whom Kelly and Stanley JJ agreed); R v W, PK [2016] SASCFC 5 at [34]-[47] per Kourakis CJ (with whom Kelly and Nicholson JJ agreed); Patterson (A Pseudonym) v The Queen [2022] SASCA 57 at [43]-[51] per Livesey P and Lovell JA and [174]-[190] per Doyle JA; Parker v The Queen [2022] SASCA 89 at [78]-[82] per Livesey P, Lovell and Doyle JJA; De Sa v The Queen [2021] SASCFC 22.

    [39]   R v Maiolo (No. 2) [2013] SASCFC 36 at [187] and [192] – [201], (2013) 117 SASR 1 at [57] – [62].

    [40]   Evidence Act 1929 (SA) s34CB(3).

13. The Court of Appeal discussed the purpose of s 34CB in Bates v The King where the Court said:[41]

    [41] [2023] SASCA 65 at [47]-[51].

    In R v Maiolo (No 2) it was emphasised that the Longman direction (which has been replaced by s 34CB of the Evidence Act) was ‘a direction in favour  of the defendant and was never a direction that was thought necessary or desirable to somehow bolster a prosecution case.’ In that matter, the trial Judge asked the jury to assume ‘just for the moment’ that the witnesses were doing their best to tell the truth (when the whole crux of the defence case was to the contrary) and noted the difficulties for the prosecution witnesses caused by the delay in the allegations proceeding to trial. That the direction referred to the impact of delay upon the complainants’ memories was considered ‘an unnecessary tangential development’ which had the effect of excusing significant inconsistencies in the complainants’ evidence, and of suggesting ‘that insofar as the defendant has suffered a significant forensic disadvantage it is no worse than that suffered by the complainants.’

    Recent authorities of this Court have reiterated that any reference to the impact of delay upon the prosecution case or prosecution witnesses, in the context of a forensic disadvantage direction, may result in it becoming ‘skewed and inadequate’ or otherwise productive of a miscarriage of justice. As Lasry AJA explained in R v GVV (in the context of a Longman warning), the direction must be unequivocally favourable to an accused, and it provides no occasion for balance between the parties.

    Relevantly, in Patterson (A Pseudonym) v The Queen, Livesey P and Lovell JA observed:

    As Peek J warned in R v Maiolo (No 2), when directing a jury the trial judge must be careful not to suggest that inconsistences within a complainant’s evidence, apparently caused by the deterioration of memory brought about by delay, results in both an accused and the prosecution suffering a forensic disadvantage. To put that proposition another way, though the jury should understand that delay may explain errors or inconsistencies in a complainant’s evidence, when scrutinising the evidence the jury must take into account that it is only the accused who has suffered a relevant forensic disadvantage caused by delay which is recognised by s 34CB.

    Ultimately, what is required upon application of s 34CB is a direction that explains to the jury the meaning and nature of the forensic disadvantage attributable to the passage of time which is tailored to the facts and circumstances of the particular case. It necessitates more than a general explanation of the difficulties occasioned by delay and faced by an accused in defending allegations of criminal conduct. The Judge should direct the jury that they must take the accused’s forensic disadvantage into account when scrutinising the evidence.

    The need for specificity in a direction pursuant to s 34CB was emphasised by Doyle CJ in R v Cassebohm. His Honour said:

    The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).

    [Citations omitted].

14. However, this was not a jury trial, but a trial by judge alone. In the context of a trial by judge alone the Court of Criminal Appeal considered the operation of s 34CB in De Sa v The Queen.[42] In holding that a judge presiding over a trial by judge alone was not required to give the direction prescribed by s 34CB, the Court said:[43]

    [42] [2021] SASCFC 22.

    [43]   De Sa v The Queen [2021] SASCFC 22 at [108]-[111].

    Subsections (2) and (3) impose an obligation on a trial judge to give directions to a jury if the precondition of “significant forensic disadvantage” is met. In general, the purpose of directions to a jury requiring consideration of specific matters is that judges are aware from their experience, but juries may not be aware, of the need to give consideration to those specific matters.

    Subsections (2) and (3) are prescriptive of what must be said (explain the nature of forensic disadvantage specific to the circumstances of the particular case and direct that the jury must take it into account when scrutinising the evidence specific to the circumstances of the particular case), and must not be said (dangerous or unsafe to convict), to the jury. Section 34BC does not address a trial by a Magistrate or Judge alone.

    In R v T, WA Kourakis CJ (with whom Vanstone J and Anderson J relevantly agreed) said:

    … having regard to both its text and context I would hold that s 34CB of the Evidence Act does not require a judge to include within his or her reasons a direction of the kind that that section prescribes.

    In JGS v The Queen Lovell J (with whom Peek and Bampton JJ agreed) said:

    The terms of the section suggest that there is no requirement on a trial judge, hearing a matter without a jury, to consider the question of whether an accused has suffered a “significant forensic disadvantage” and therefore enlivening the obligation to direct him or herself in accordance with ss 34CB(2)(a) and (b). Presumably Parliament considers that judicial officers are aware of, and will give the appropriate weight to, the difficulties faced by an accused when confronted with the forensic disadvantages envisaged by s 34CB.

    [Citations omitted].

15. The existence of a significant forensic disadvantage is a matter which should normally be taken into account by a judge sitting alone in the course of considering whether the charge has been proved beyond reasonable doubt.[44]

    [44]   De Sa v The Queen [2021] SASCFC 22 at [113].

16. The appellant makes three specific complaints in the first category of error. First, the appellant submitted that the judge erred in failing to consider the forensic disadvantage he suffered by reason of the destruction of the pistol, years before the trial, depriving him of the opportunity of tendering it to establish that it was not the pistol used during the offending. 

17. Second, the appellant submitted the judge erred in failing to consider the forensic disadvantage he suffered by reason of the inability to test elsewhere in the Ford motor vehicle, apart from the gear stick and the steering wheel, for samples of DNA that might have evidenced the possibility of other persons being in the car. 

18. Third, the appellant submitted the judge erred in failing to consider the forensic disadvantage he suffered by reason of the inability to obtain telephone records from other service providers that might possibly have evidenced communications on the night of the offending between other persons and Ms Borsi-Watson. 

19. In the second category, the appellant submitted that the trial judge impermissibly weighed the forensic disadvantage the prosecution suffered by reason of the effect of delay on the reliability of AG’s evidence of identification of the man he saw at his front door.  The judge said:[45]

    I do not place much weight on AG being shown photos of one person, in court, 13 years after the incident at his home.  However, I have taken into account that AG does not reject the suggestion that it is the same man who attended his house who is in Exhibit D43. 

    [45]   R v Colson [2021] SADC 150 at [70].

20. We do not accept any of these submissions. 

21. In relation to the pistol, there is no actual disadvantage in it having been destroyed.  At trial no submission was made that there was any forensic disadvantage as a result.  The pistol was comprehensively photographed between Exhibits P26 and P49 and was actually shown to WH not long after the offending occurred.  The appellant’s submission is predicated on the false assumption that the pistol identified by WH could not have been the pistol used in the offending.  That assumption is founded on the contention that the pistol in the photographs was blue rather than silver.  For the reasons set out above, that proposition must be rejected. 

22. In relation to the inability of the appellant, closer to trial, to have had other parts of the car swabbed for the purpose of obtaining other DNA samples that might have evidenced the possibility that other persons might have been in the car, the trial judge addressed this in the following terms:[46]

    … swabs that were taken from some items have been subsequently destroyed or returned and although many of the items have been tested by Forensic Science, there were some that were not tested at the time and now by reason of the items not being available or there being insufficient material to conduct further testing, the accused is not able to request that testing be conducted.  It is now not known what the result would have been of any subsequent testing and investigations that may have been conducted by the accused. 

    [46] R v Colson [2021] SADC 150 at [22].

23. The trial judge in that passage took account of the inability of the appellant to have other items in the car tested.   However, there must be significant doubt as to whether this really did constitute a forensic disadvantage to the appellant.  Even if such testing had been undertaken and, assuming for the purposes of the argument, that traces of another person or persons’ DNA were found in the car,  their probative value as evidence would be negligible given the evidence the Court heard about secondary and tertiary transfer; that the presence of an individual’s DNA on an item does not mean that the individual ever had any connection with the item or ever touched that item; that DNA can remain on an item for an extended period; and that the presence of DNA cannot prove how or when the DNA was deposited on an item.  Accordingly, there was no significant disadvantage in the inability of further DNA testing to be performed on the Ford.  Had there been an ability to undertake further testing of the car and it had identified deposits of DNA left by unknown persons, that alone would not have given rise to a reasonable hypothesis consistent with innocence on the part of the appellant. 

24. The complaint in relation to the absence of phone records of incoming calls to Ms Borsi-Watson’s telephone on 4 and 5 September 2008 is misconceived.  Contrary to the appellant’s complaint, Ms Borsi-Watson’s call charge records were obtained and were part of the evidence in the trial.[47]  They showed her outgoing phone use at the relevant time.  The records were therefore not lost with the effluxion of time.  To the extent that the records did not include the reverse call charge records, there was no request by the defence at trial for this to be taken into account as an instance of significant forensic disadvantage.  In any event, the lack of further records does not impugn the accuracy of the records that were admitted into evidence.  Any claim that the appellant suffered a significant forensic disadvantage by reason of the absence of phone records is predicated on the notion that incoming phone records might disclose regular contact, separate from those in the available call charge records, that would enable the identification of an unknown person so that the Court could consider whether that person was a male matching the description of the offender.  This involves significant speculation and does not materially change the submissions that were made and considered about another person, acquainted with Ms Borsi-Watson, who was the real offender. 

    [47]   Exhibit P56, tab 5.

25. The second category involves a complaint that the trial judge erred by taking into account a forensic disadvantage suffered by the prosecution due to the effect of the passage of time on the memory of AG who gave evidence of identification of a man who he spoke to at his front door around 3:30 a.m. on 5 September 2008.  The appellant submitted that this involved an impermissible approach as forensic disadvantage is a protection for an accused person only and cannot be used to suggest that a prosecution witness may have suffered a disadvantage in his or her memory due to the passage of time.  In our view this misunderstands the effect of what the trial judge said.  The impugned reasons do not form part of the trial judge’s consideration of forensic disadvantage.[48]  The trial judge was not taking into account the disadvantage suffered by the prosecution by reason of the effect on AG’s evidence of the passage of time since the event about which he gave evidence.  Rather, the trial judge in evaluating AG’s evidence was merely explaining the weight she gave his evidence given the effect of delay on his memory.  In any event, the trial judge still took into account that his evidence did not exclude the possibility that the man he spoke to at his front door was the same man who was in Exhibit D43.

    [48]   R v Colson [2021] SADC 150 at [20]-[23].

1. We would dismiss ground 4. 

   The proviso

2. Accordingly, it is unnecessary to consider the application of the proviso.

   Conclusion

3. We would grant permission to appeal on ground 1 but dismiss ground 1.  We would refuse permission to appeal on grounds 2, 3 and 4.