Director of Public Prosecutions v Cross
[2024] ACTSC 277
•6 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Cross |
Citation: | [2024] ACTSC 277 |
Hearing Date: | 28 – 29 August 2024 |
Decision Date: | 6 September 2024 |
Before: | Taylor J |
Decision: | See [179]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – extensive agreed facts – aggravated burglary – theft – take motor vehicle without consent – circumstantial case – strands in the cable case – identification evidence – DNA evidence – reasonable hypothesis consistent with innocence – potential twin brother – verdicts of not guilty |
Legislation Cited: | Court Procedures Act 2004 (ACT) ss 78, 79, 79C, 79E Court Procedures Rules 2006 (ACT) r 1202(2) Criminal Code 2002 (ACT) ss 45A, 308, 311, 312, 318, 322A(1), 326 Criminal Procedures Act 1986 (NSW) s 146 Evidence Act 2011 (ACT) s 137, 191 Magistrates Court Act 1930 (ACT) s 90B Road Transport (Driver Licensing) Act 1999 (ACT) s 31A(1) Supreme Court Act 1933 (ACT) s 68 |
Cases Cited: | Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 Festa v The Queen [2001] HCA 72; 208 CLR 593 Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 R v Hansen [2022] NSWDC 746 R v Hillier [2007] HCA 13; 228 CLR 618 R v Sharpe (No 2) [2021] NSWSC 32 |
Parties: | Director of Public Prosecutions ( Crown) Bronson Cross (Accused) |
Representation: | Counsel G Meikle ( DPP) E Chen ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Numbers: | SCC 120 of 2024 SCC 121 of 2024 |
TAYLOR J:
Introduction
1․This is a trial by judge alone after the accused, Bronson Cross, signed an election on 19 June 2024 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
2․The accused has been charged with the following offences on an indictment dated 26 August 2024:
(a)Count 1 (CC2023/12046): aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code) and by virtue of s 45A of the Criminal Code.
(b)Count 2 (CC2023/12021): take motor vehicle without consent contrary to s 318(1) of the Criminal Code.
(c)Count 3 (CC2023/12023): dishonestly drive motor vehicle without consent contrary to s 318(2) of the Criminal Code.
(d)Count 4 (CC2023/12047): theft contrary to s 308 of the Criminal Code and by virtue of s 45A of the Criminal Code.
(e)Count 5 (CC2023/12026): burglary contrary to s 311 of the Criminal Code.
(f)Count 6 (CC2023/12028): take motor vehicle without consent contrary to s 318(1) of the Criminal Code.
(g)Count 7 (CC2023/12049): dishonestly drive motor vehicle without consent contrary to s 318(2) of the Criminal Code.
(h)Count 8 (CC2023/12058): theft contrary to s 308 of the Criminal Code.
(i)Count 9 (CC2023/12029): dishonestly obtain property by deception contrary to s 326 of the Criminal Code.
3․In addition, three related offences have been transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT):
(a)CC2023/12025: drive motor vehicle while right to drive suspended contrary to s 31A(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the Licensing Act).
(b)CC2023/12030: drive motor vehicle while right to drive suspended contrary to s 31A(1) of the Licensing Act.
(c)CC2023/12056: make off without payment contrary to s 322A(1) of the Criminal Code.
4․Section 68D of the Supreme Court Act requires that I deal with any related offences with which the accused has been charged if it is in the interests of justice. Section 68E of the Supreme Court Act requires that a related charge be dealt with by the trial judge on the basis only of evidence given at the trial on the indictable offence in the same proceeding. I consider it to be in the interests of justice to deal with the related offences as part of this trial and no submission was advanced to the contrary.
5․On 28 August 2024, the trial commenced before me after the accused was arraigned and pleaded not guilty to all counts. The matter largely proceeded by way of a “hand-up brief”. A single witness was called to give oral evidence arising from an issue regarding the admissibility of a portion of her expert evidence, which I will address below. On 29 August 2024, parties made closing submissions and I reserved my decision.
6․In accordance with s 68C(2) of the Supreme Court Act I now provide the following reasons which include the principles of law I have applied and the findings of fact that I have made.
7․For the reasons that follow, the accused is not guilty in relation to all nine counts on the indictment and the three related transferred charges.
Prosecution case
8․In summary, the prosecution alleged that the accused is responsible for committing the offences of aggravated burglary, take motor vehicle without consent, drive motor vehicle without consent, drive while suspended, theft and make off without payment on 12 September 2023. The offending conduct is partly captured on closed circuit television (CCTV) footage from two residential addresses in Yarralumla and at the EG Fuel Company petrol station in Mawson.
9․The prosecution further alleged that the accused is responsible for committing the offences of burglary, take motor vehicle without consent, drive motor vehicle without consent, drive while suspended and dishonestly obtain property by deception on 17 October 2023. Again, the offending conduct is partly captured on CCTV footage from a residential address in Nicholls and at a McDonald’s in Queanbeyan.
10․The two drive while suspended related transferred offences capture the allegation that the accused drove a vehicle on 12 September 2023 and 17 October 2023 when his right to drive had been suspended. The make off without payment transferred offence relates to the allegation that the accused did not pay for the petrol he put into the vehicle stolen from the Yarralumla address.
11․The sole issue for determination in this trial is whether the accused is the person identified as the offender in relation to each of the offences. The prosecution case is a circumstantial one, the effect of which I will deal with in the directions below.
12․Pursuant to s 191 of the Evidence Act 2011 (ACT), the parties agreed the following facts were not in dispute.
Agreed facts
Timestamps on CCTV footage
13․The timestamp on the CCTV footage in Folder A of the agreed tender brief produced by [redacted] is approximately 40 minutes ahead of Australian Eastern Standard Time. For example, when the footage shows events occurring at “3:06am” on 12 September 2023, the events in fact occurred at about 2:26am.
14․The timestamp on the CCTV footage in Folder D of the agreed tender brief is one hour behind Australian Eastern Standard Time as at 16 and 17 October 2023. For example, when the footage shows events occurring at “2:14am” on 17 October 2023, the events in fact occurred at 3:14am.
15․The timestamp on the CCTV footage in Folder F of the agreed tender brief is one hour behind Australian Eastern Standard Time as at 17 October 2023. For example, when the footage shows events occurring at “8:05am” on 17 October 2023, the events in fact occurred at 9:05am
Yarralumla burglary and theft
16․[Redacted] resided at [redacted] Street, Yarralumla in the Australian Capital Territory (ACT) as at 12 September 2023.
Mawson make off without payment
17․On 12 September 2023 at approximately 8:27pm, an individual drove a silver Jaguar XJ bearing ACT registration [redacted] into the EG Fuel Company petrol station at Mawson in the ACT. The individual parked the vehicle at bowser number four and filled the vehicle with $84.26 worth of premium 95 petrol. The individual then drove away without making any attempt to pay for the petrol. The individual was alone.
18․The incident described at paragraph [17] was captured on CCTV footage. This footage is not available. However, investigating police obtained screenshots of the incident described at paragraph [17]. These screenshots are included in the agreed tender brief at tab 9 and folder C.
19․The console operator on shift at the EG Fuel Company at Mawson produced a receipt for the fuel, included at tab 10 of the agreed tender brief. The timestamp on this receipt was amended by hand to reflect the actual time the petrol was taken. The receipt was not printed until several minutes after the petrol was taken, which is the reason for this discrepancy.
20․No employee of EG Fuel Company at Mawson gave the individual permission to leave the station without paying for the petrol.
Nicholls burglary and theft; McDonald’s Queanbeyan dishonestly obtain property by deception
21․[Redacted] reside at [redacted] Street in Nicholls in the ACT. They are the registered owners of a 2023 white BMW X4 bearing ACT registration [redacted] (the BMW). On the evening of 16-17 October 2023, Ms [redacted] and Mr [redacted] were at their residence in Nicholls with their two young children.
22․At about 6:00am on 17 October 2023, Mr [redacted] went downstairs. He saw that the internal door to the garage was ajar, the garage roller door was open, and the BMW was missing. Mr [redacted] alerted Ms [redacted] and Ms [redacted] contacted police.
23․In addition to the BMW, Ms [redacted] identified the following items belonging to her and Mr [redacted] as having been taken from the residence the previous evening:
(a)a key ring containing Toyota Hilux electronic keys;
(b)two house keys;
(c)Mercedes M250 electronic keys;
(d)two BMW keys;
(e)a black Givenchy Antigona bag;
(f)a black Oroton wallet containing Ms [redacted]’s drivers’ licence, cards in Ms [redacted]’s name, and $450 in cash;
(g)a Bunnings gift voucher valued at $100;
(h)an iPad;
(i)Air Pods;
(j)a Makita impact driver; and
(k)a Makita stapler.
24․At about 7:00am on 17 October 2023, police attended and conducted records of conversation with [redacted].
25․The BMW had live location tracking via Ms [redacted]’s BMW mobile application. Ms [redacted] provided updates as to the vehicle’s location to police, and police drove around the ACT in pursuit of the BMW. At one point, the vehicle left the jurisdiction of the ACT and entered the jurisdiction of New South Wales (NSW), before returning to the ACT.
26․At about 9:08am, police received an update from Ms [redacted] to the effect that the BMW had come to a stop in Whiteside Circuit in Nicholls. Police arrived at this location a short time later.
27․At 5:06am on 17 October 2023, an individual used one of the credit cards in [redacted]’s name stolen from her residence at [redacted] Nicholls to purchase $23.30 worth of items from a McDonald’s in Queanbeyan via the drive-through. Ms [redacted] did not give any person permission to use her credit card to make this purchase.
28․At no time did either [redacted] or [redacted] give the accused permission to enter their residence on the evening of 16-17 October 2023, take any of their belongings, or take or drive their BMW.
Execution of search warrant at [redacted], Karabar, NSW
29․On 25 October 2023, a section 3E search warrant for the accused’s address at [redacted], Karabar in NSW was granted by Magistrate Cook.
30․On 26 October 2023, the search warrant was lawfully executed. Police located the accused inside the residence and placed him under arrest.
31․Items of relevance located in the accused’s bedroom at this address were seized and photographed by police. These photographs are included at tab 28 of the agreed tender brief.
32․A wedge pump was also located in the accused’s bedroom, which is a device that can be used to force open the doors of locked vehicles.
33․The accused’s brother, [redacted] Cross, slept in the garage that had been converted into a bedroom at [redacted], Karabar, NSW.
Execution of search warrant at 2/17 [redacted], Oaks Estate, ACT
34․On 25 October 2023, a section 3E search warrant for the premises at 2/17 [redacted], Oaks Estate in the ACT was granted by Magistrate Cook.
35․On 26 October 2023, the search warrant was lawfully executed.
36․An item of relevance was located at the premises and seized and photographed by police. This photograph was annexed to the agreed facts and labelled “Annexure A”.
The Subaru WRX and swapped number plates
37․Mr [redacted] is the registered owner of a dark grey 2015 Subaru WRX bearing ACT registration [redacted] (the Subaru WRX).
38․At about 4:15am on Saturday 14 October 2023, Mr [redacted] woke to find the front door to his residential premises at [redacted], Denman Prospect in the ACT open. Mr [redacted] saw that the keys to the Subaru WRX had been taken from inside his residence, and that the Subaru WRX was missing. Mr [redacted] reported the incident to police. Mr [redacted] did not give permission to any person to enter his residence or to take or use his vehicle.
39․At about 12:22am on Monday 16 October 2023, the Subaru WRX pulled up next to Mr [redacted]’s vehicle bearing ACT Registration plates [redacted], which was parked on the side of the road at [redacted], Red Hill in the ACT. An individual exited the Subaru WRX and removed both of the registration plates from Mr [redacted]’s vehicle. The same individual then replaced Mr [redacted]’s registration plates with the Subaru WRX registration plates.
Weston Creek burglary
40․At about 12:28pm on Wednesday 18 October 2023, a burglary was committed at [redacted], Weston in the ACT. The accused has admitted to committing this burglary. The accused arrived at and departed the scene of the burglary at [redacted], Weston in the Subaru WRX referred to at paragraphs [37] – [39] and has admitted to driving this vehicle without the consent of its owner on 18 October 2023.
Arrest, extradition and forensic procedure
41․On 26 October 2023, the accused was lawfully arrested at his residence at [redacted], Karabar, NSW. The accused was subsequently lawfully extradited from NSW to the ACT.
42․On 26 October 2023, the following forensic procedures were lawfully carried out upon the accused pursuant to the Crimes (Forensic Procedures) Act 2000 (ACT):
(a)buccal swab;
(b)fingerprints; and
(c)photographs.
43․Following his arrest on 26 October 2023, Constable Elias Nikias seized a pair of fake diamond earrings worn by the accused. Photographs of these earrings were annexed to the agreed facts and labelled “Annexure B”.
Seized vehicles of interest
44․Once the following vehicles were seized by ACT Police, the vehicles remained in the custody of members of the ACT Police until they were forensically examined as set out in the agreed tender brief:
(a)the silver Jaguar XJ 264.0 sedan with ACT registration number [redacted];
(b)the white BMW X4 station wagon with ACT registration number [redacted]; and
(c)the dark grey 2015 Subaru WRX bearing ACT registration number [redacted].
Facts relating to the offences committed in Yarralumla
45․The conduct constituting the aggravated burglary (Count 1), take motor vehicle without consent (Count 2) and theft (Count 4) at the Yarralumla address is not the subject of an agreed fact. The statement prepared by the complainant, [redacted], is unchallenged and I was invited by the prosecution to accept his version of events as establishing the facts of the offences. The accused did not oppose this course. CCTV footage from the Yarralumla residence was provided as part of the agreed tender brief. In addition, CCTV footage recorded from an address in [redacted] Street, Yarralumla was also part of the agreed tender bundle and is relied on by the prosecution as part of the circumstances in support of their case against the accused.
46․The following matters from that material can be summarised as follows.
47․[Redacted] and [redacted] reside at [redacted] Street, Yarralumla in the ACT. Mr [redacted] is the registered owner of a silver Jaguar XJ Supersport bearing ACT registration [redacted] (the Jaguar).
48․On the evening of 11 September 2023, Mr [redacted] and Ms [redacted] were at their residence and had a guest staying with them. The guest went to bed at about 8pm, Mr [redacted] went to bed at about 12:30am and Ms [redacted] went to bed at about 1:30am. When Mr [redacted] went to bed on 12 September 2023, his Jaguar and Subaru Outback vehicles were both locked and parked in the adjoining garage. The electronically operated garage door was closed. A locked Mazda BT 50 utility vehicle (the ute) was parked in the driveway directly in front of the garage door. The keys to all three motor vehicles were in a drawer in an alcove in the kitchen of the residence. The garage is connected to the house by an internal door.
49․The house has an alarm and surveillance system. At the time of the offence the alarm was turned off, but the surveillance system was operating. At about 2:25am on 12 September 2023, the CCTV footage captured three individuals arrive in a vehicle, approach the residence on foot and gain entry to the premises via the garage roller door. At about 2:30am, two individuals pushed the ute down the driveway and onto the street to make room for the third individual to reverse the Jaguar from the garage. They abandoned the ute and shortly thereafter, the Jaguar and the vehicle the individuals arrived in, departed the location.
50․The CCTV footage showed the three individuals return to the residence at 3:04am and regain entry to the premises. The individuals walked around to the rear of the premises, entered the rear garage and looked around. Flashes of light depicted in the CCTV footage revealed that at least one of the offenders gained entry to the house. The footage captured the offenders leaving the premises carrying various items.
51․At about 6:45am on 12 September 2023, Mr [redacted] was woken by his wife telling him the house had been broken into. He went downstairs and saw the internal door to the garage was left open and the Jaguar was gone. Numerous items from the garage and inside the residence were missing, they are as follows:
(a)keys to a Jaguar XJ Supersport;
(b)a Jaguar XJL X351 Owners Handbook Warranty Maintenance Guides in leather folder and service record;
(c)a wallet containing a driver’s license, credit cards and cash of unknown value;
(d)Serengeti prescription sunglasses;
(e)a dash cam camera;
(f)a Persian rug;
(g)two white caps;
(h)a black metal torch;
(i)a Sony A33 camera;
(j)a Milwaukee driver and drill; and
(k)a key pouch with house keys.
52․Police attended shortly after 7:05am and Mr [redacted] gave them permission to access the CCTV system and complete forensic analysis at the residence.
53․At no time did Mr [redacted] give the individuals permission to enter his home and remove his vehicle or any of the other property.
Admissibility of additional forensic evidence
54․At the beginning of the trial, the accused filed an application in proceeding and supporting affidavit dated 27 August 2024. The application sought to have a portion of the expert evidence from Ms Jennifer Stone excluded. Exclusion of the evidence was sought on the basis that the prosecution had failed to comply with the pre-trial disclosure requirements contained in ss 78 and 79 of the Court Procedures Act 2004 (ACT) (the Court Procedures Act). Those provisions provide:
78 Mandatory pre-trial disclosure—expert evidence
(1)After an indictment is filed in a proceeding, the following pre-trial disclosure is required:
(a)the prosecutor must give each accused person written notice in accordance with section 79 about whether or not the prosecution will adduce expert evidence in the proceeding;
(b)an accused person must give the prosecution and each co‑accused person (if any)—
(i) written notice about whether or not the accused person will adduce expert evidence in the proceeding; and
(ii) if the accused person receives written notice under this division from the prosecution or a co-accused person about an intention to adduce expert evidence in the proceeding—written notice in reply in accordance with section 79A;
(c)if the prosecutor receives written notice under this division from an accused person about an intention to adduce expert evidence in the proceeding—the prosecutor must give each accused person written notice in reply in accordance with section 79B.
(2)Pre-trial disclosure in accordance with this section must happen before the date set for the trial in the proceeding and in accordance with a timetable determined by the court.
(3)The court may vary the timetable determined under subsection (2) if it considers that it would be in the interests of justice to do so.
79 Prosecution notice—expert evidence
(1)For section 78 (1) (a), written notice by a prosecutor in a proceeding must—
(a)if the prosecution intends to adduce expert evidence in the proceeding—include the following:
(i) a statement that the prosecution intends adducing expert evidence in the proceeding;
(ii) a copy of any statement or report relevant to the proceeding that sets out the opinion of a person who the prosecution intends to call as an expert witness in the proceeding;
(iii) a copy of any other real evidence that is relevant to expert evidence that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the real evidence, a detailed description of the real evidence;
(iv) any chart or explanatory material relating to expert evidence that the prosecution proposes to adduce at the trial; or
(b)if the prosecution does not intend adducing expert evidence in the proceeding—a statement that the prosecution does not intend adducing expert evidence in the proceeding.
55․The accused sought the exclusion pursuant to s 79C of the Court Procedures Act, or alternatively, pursuant to s 137 of the Evidence Act 2011 (ACT) (the Evidence Act). The provisions provide:
79C Sanctions for non-compliance with pre-trial disclosure requirements
(1)The court may refuse to admit expert evidence sought to be adduced by a party in a proceeding if the party failed to disclose the evidence to the other parties in accordance with this division.
(2)The court may refuse to admit evidence from an expert witness sought to be adduced by a party in a proceeding if the party failed to give the other parties a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed under this division.
(3)The court may grant an adjournment to a party (the first party) if another party (the second party) seeks to adduce evidence in the proceedings that the second party failed to disclose in accordance with requirements for pre-trial disclosure imposed under this division and that would prejudice the case of the first party.
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
56․It was agreed that the evidence subject of the application would be taken on a voir dire during the trial, and I would rule on the admissibility of that evidence in this judgment. If ruled admissible the evidence given by Ms Stone on the voir dire could be considered as part of the evidence in the trial.
Forensic evidence in dispute
57․Three statements accompanied by ‘Biology Court Reports’ prepared by Ms Jennifer Stone, a forensic biologist with the Australian Federal Police, formed part of the agreed tender brief. In summary, Ms Stone examined and interpreted the DNA results from samples recovered from three motor vehicles involved in the offending. Ms Stone provided a likelihood ratio of the DNA of the accused being a contributor in each of the mixed DNA profiles identified, as compared to an unknown individual. In summary, each report expressed the opinion that there is “extremely strong support” for the accused as a contributor to the mixed DNA profile. The expert opinion expressed in the reports of Ms Stone is not the subject of challenge.
58․On 26 August 2024, two days prior to the commencement of the trial, the prosecutor sent an email to Ms Stone seeking further information about the likelihood ratios in her reports. The prosecutor asked Ms Stone to comment on if and how the likelihood ratios expressed in the three reports would change when compared to a male sibling of the accused rather than an individual selected at random. The prosecutor disclosed Ms Stone’s email response upon the accused’s counsel slightly more than one day before the commencement of the trial. The accused sought an order that the prosecution be prohibited from adducing the additional opinion of Ms Stone contained in the email correspondence.
Consideration
59․There is no dispute that on 19 June 2024 the Registrar made the following trial directions:
(i)The DPP is to file and serve it’s notice of expert evidence by 17 July 2024;
(ii)Defence is to file and serve it’s notice of expert evidence by 31 July 2024; and
(iii)The DPP is to file and serve any notice in reply by 14 August 2024.
60․Subsequently, there was no further order made pursuant to s 78(3) of the Court Procedures Act varying the timetable for pre-trial disclosure and none was sought by either party. There was a Criminal Case Conference on 25 July 2024. On 29 July 2024 the matter was listed for trial to commence on 28 August 2024l.
61․The accused submitted that the email to Ms Stone was a “last minute” attempt to rectify a deficiency in the prosecution case which is precisely what ss 78 and 79 of the Court Procedures Act seek to avoid. It was submitted that the prospect of a sibling of the accused playing some role in the offending was an issue capable of identification at the outset of the prosecution.
62․In the alternative, the accused relied on s 137 of the Evidence Act and submitted that the probative value of the opinion as to the effect of a sibling on the likelihood ratio is outweighed by the danger of unfair prejudice; the unfair prejudice said to be that he was entitled to know the case against him and late disclosure has prejudiced his capacity to adequately prepare. The accused submitted that an adjournment pursuant to s 79C(3) of the Court Procedures Act was not an appropriate remedy in this instance as the accused would lose his trial date and risk a delay of the proceedings.
63․The prosecution submitted that the accused’s brother being the perpetrator has not, at any stage, been a reasonable hypothesis consistent with innocence and the accused has misunderstood the intention behind adducing the additional expert evidence from Ms Stone. The prosecution categorised the additional evidence as a “clarification of evidence that’s already been presented to the accused” and as such, submitted that the provisions in the Court Procedures Act invoked by the accused do not strictly apply.
64․Further it was submitted by the prosecution that inclusion of the additional evidence does not amount to “unfair prejudice” as requesting an adjournment is an option available to the accused which if granted, would still allow for an expeditious trial given the original trial listing was available on short notice. There was no particular explanation offered for the timing of the request of Ms Stone though the prosecution did observe that the trial had only been set down one month ago.
65․First, I am not persuaded by the prosecution’s submission that the additional evidence they seek to adduce is merely a clarification of the original expert reports properly disclosed and therefore is not caught by the pre-trial disclosure provisions. Section 79 (a)(ii) makes plain that “any statement or report relevant to the proceeding that sets out the opinion of person who the prosecution intends to call as an expert witness” must be included in an expert evidence notice. The effect of which is that any statement by an expert, not just that contained in an expert report, is included as material subject to pre-trial disclosure. Rule 1202(2) of the Court Procedures Rules 2006 (ACT) defines an “expert report” as a written statement by an expert which sets out the expert’s opinion and the facts on which the opinion is formed. The original reports from Ms Stone clearly fall into that category. In my view, the additional evidence does not have the character of a clarification. It expresses a substantive opinion separate to those expressed in the original reports. Ms Stone’s original statements and reports make no reference to the prospect of biological siblings. Ms Stone’s email contains her expert opinion as to the likelihood ratios when the prospect of a biological sibling of the accused is factored in. This is not a clarification of an already expressed opinion. This is an entirely new opinion.
66․I am satisfied that the opinion contained in the email is a statement by an expert witness upon which the prosecution relies. It is a statement that is within the ambit of the pre-trial disclosure provisions.
67․Section 79E of the Court Procedures Act, allows for waiver of any of the pre-trial disclosure requirements if the Court considers that it would be in the interests of justice to do so. Reasons are required: s 79E(5). There are no prescribed matters that must or may be considered for the purposes of exercising the discretion under s 79E. There can be no dispute that the pre-trial disclosure provisions are designed to reduce delay, promote efficiency by the identification of the real issues in dispute and ensure a fair trial. There does not appear to be any decision of this Court in relation to the pre-trial disclosure provisions.
68․The accused sought to draw some comparison with R v Sharpe (No 2) [2021] NSWSC 32 (Sharpe) and R v Hansen [2022] NSWDC 746 (Hansen). Though generally useful as to the considerations that might inform an application of this kind, the circumstances in both matters were vastly different to those that attend to this matter.
69․In Sharpe there was almost two years between the alleged offence and the trial. The proceedings had been the subject of judicial case management on “a number of occasions”. The impugned evidence was an 80-page report annexing 174 images that had been outstanding for many months with no real attempt made by the prosecution to pursue its service. The report fundamentally altered an aspect of the prosecution case as to who, between the accused and the deceased victim, was injured first. Despite numerous pre-trial appearances, the prospect of the outstanding report had not ever been raised by the prosecution, for which there was no explanation. The accused indicated an intention to seek an expert report in response which would create delay in circumstances where a trial date had already been fixed and was imminent. The result was the exclusion of the evidence pursuant to s 137 of the Evidence Act with Bellew J describing the circumstances of the late service of the report as “deplorable” at [34].
70․In Hansen, Coleman DCJ at [110] considered circumstances where the prosecution “flagrantly” breached pre-trial disclosure provisions and identified the following factors as relevant to the exercise of the discretion in the equivalent provision in NSW (s 146 of the Criminal Procedures Act 1986 (NSW)):
1.An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance;
2.The explanation for the late disclosure;
3.Any prejudice that would be caused if the new material was able to be relied upon;
4.Any appropriate remedies, including an adjournment of the trial; and
5.Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.
71․Those factors are all matters that sensibly influence an assessment of “the interests of justice” and in this instance I am satisfied, point to the exercise of the discretion in the prosecution’s favour for the following reasons.
72․The additional evidence from Ms Stone is in email form. Her evidence on the voir dire confirmed the opinion and established that it was an opinion peer reviewed in the same way that the opinions in her original report were peer reviewed. There was no challenge to her expertise or that the additional opinion came within the scope of her expertise. There was no challenge to her methodology. The additional opinion is relevant and has probative value.
73․On any view, the matter was set down for trial at very short notice. The offending allegedly occurred in September and October 2023.
74․Though I have determined that the prosecution did not comply with the pre-trial disclosure requirements, I do not consider the breach to be scandalous or egregious in all the circumstances. The prosecutor identified that “in the lead up to the trial” as agreement was being reached about the material that would form the “hand up” brief, it became clear to her that there would be some suggestion made as to the involvement of the accused’s brother in the offending conduct.
75․As a result, she considered it part of her duty to assist the Court to raise that possibility with Ms Stone. This was not because the prosecution accepted that a reasonable hypothesis consistent with innocence was available and had to be excluded, rather it was as a result of understanding that a suggestion of sibling involvement was likely to be advanced by the accused and Ms Stone’s opinion as to the effect of that scenario on her conclusions was potentially relevant.
76․I accept the submission by the accused that the prospect of his brother’s involvement in the offending was capable of being identified on proper review of the brief of evidence. That said, the additional opinion did not fundamentally change the case against him. Indeed, the sibling prospect factored into Ms Stone’s opinion did not alter the strength of her original conclusion of there being “extremely strong support” for the accused as a contributor to the mixed DNA profile than if the profile originated from a biological sibling.
77․The prosecutor pointed out that had Ms Stone been called as witness in the prosecution case, she could have been asked questions in examination in chief about matters that would influence her opinion. This is so. The fact that counsel for the accused agreed to the tender of Ms Stone’s statements and reports did not preclude the prosecution from calling her to give evidence and asking her questions about her reports and the conclusions contained therein.
78․Further, it is my view that where the accused was seeking to identify a reasonable hypothesis consistent with innocence that required consideration of the significance of the DNA evidence and Ms Stone’s opinion, it was necessary to raise that hypothesis with Ms Stone for her comment.
79․Counsel for the accused submitted that the opinion of Ms Stone contained in the original reports was not ever to be the subject of challenge. Rather, significance was placed on the words used in the expression of the opinion “when considered in isolation from other information” as a caveat as to the limitations of the opinion. The prospect of a sibling being “other information” leaves open the possibility that the Court could consider the opinion in light of that prospect. Counsel argued that as fact finder I would be considering all the evidence which would include a consideration of the involvement of the accused’s sibling and my assessment of the reasonableness of that hypothesis need not involve a challenge to Ms Stone’s opinion as to the likelihood of the accused as a contributor.
80․I do not agree. While the argument from the accused sought to carefully avoid the need to raise the prospect of a sibling with Ms Stone, the reasonableness of the hypothesis consistent with innocence necessarily rested, to some extent at least, on casting doubt on the strength of Ms Stone’s “extremely strong support”. Put another way, the reasonableness of the hypothesis consistent with innocence was influenced by the strength of the expert opinion as to the likelihood of the accused contributing to the DNA mixed profile than if the DNA profile originated from his sibling. It follows that the reasonableness of the hypothesis fell to be assessed on the basis that the prospect of a sibling of the accused contributing to the DNA profile led to a diminution in the strength of the expert opinion; the prospect of a sibling being “other information”. In those circumstances, while not a direct challenge to the expert opinion, the accused was ultimately to submit that the opinion did not exclude the hypothesis consistent with innocence because it did not take account of the circumstances revealed by the evidence. Absent evidence from Ms Stone about the effect on her opinion of the sibling scenario, I would be left to draw an inference that the involvement of a sibling would alter the strength of her opinion. This was not a matter about which I could take judicial notice.
81․The evidence in the original reports is taken at its highest for the purposes of this application. In my view, to be able to submit that the prosecution had not excluded a reasonable hypothesis consistent with innocence, it was necessary to ask questions of Ms Stone about the effect of the prospect of a sibling on the strength of her opinions.
82․The additional evidence, as will become clear does not prevent the accused from raising the reasonable hypothesis consistent with innocence. Though I do accept that until the provision of the additional evidence, counsel for the accused had anticipated an approach to the forensic evidence that did not require cross-examination of Ms Stone. Notwithstanding that, counsel ably demonstrated his capacity to do so on the voir dire. The exclusion of the evidence would potentially create a misleading picture in that it would leave the fact finder in a position where an expert opinion, which could inform the reasonableness of a hypothesis consistent with innocence, is incomplete.
83․The prospect of an adjournment was not pressed by counsel. There was no submission made that the accused intended to seek a forensic report in response. The accused is not only in custody in relation to this trial. While certainly not permission for any delay, in circumstances where the trial date was, unusually, set down with a month’s notice and where the accused is not refused bail only in relation to this trial, an adjournment did not create significant prejudice to the accused.
84․In my view it is in the interests of justice to waive the pre-trial disclosure requirements in relation to the additional evidence.
Exclusion pursuant to s 137 of the Evidence Act
85․If I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice, the evidence must be excluded pursuant to s 137 of the Evidence Act.
86․Late disclosure of evidence can amount to ‘unfair prejudice’: Haoui v R [2008] NSWCCA 209; 188 A Crim R 331.
87․The accused submitted that the unfair prejudice is the risk he will not receive a fair trial if the evidence is not excluded. The basis of this submission is that counsel for the accused is required to cross-examine Ms Stone without adequate preparation and without the benefit of a “contrary” opinion.
88․As I have already observed, counsel ably cross-examined Ms Stone on the voir dire including with respect to a number of factors that might influence the strength of her opinion. I accept this was done with only a days’ notice and without the benefit of an expert report in response. There can be no doubt that the additional evidence is ‘prejudicial’ to the extent that it reveals that there remains “extremely strong support” for the accused contributing to the mixed DNA profile even where the prospect of a biological sibling is factored in. I do not consider that the circumstances as I have outlined them as to the disclosure of the additional evidence amounts to prejudice that is unfair. Accordingly, the application to exclude the evidence pursuant to s 137 of the Evidence Act is dismissed.
Evidence of Jennifer Stone
DNA test results
89․As referenced above, Ms Stone provided three statements, each accompanied by a ‘Biology Court Report’. The evidence Ms Stone gave on the voir dire was agreed by the parties to form part of the evidence in the trial proper upon the admission of the additional evidence.
90․The first statement and report, dated 13 February 2024, pertained to forensic testing conducted on a swab collected from the steering wheel of the Jaguar. A report on the examinations conducted on the Jaguar dated 15 February 2024, stated that the swab was collected on 18 September 2023. The forensic testing resulted in a mixed DNA profile from a minimum of three individuals being obtained. The accused could not be excluded as a contributor to that profile. The report stated that the evidence is at least 100 billion times more likely if the accused is one of three contributors to the mixed DNA profile than if the profile originated from three unknown individuals, unrelated to the accused, selected at random from the Australian Caucasian sub-population. Ms Stone concluded that this finding, when considered in isolation from other information, provides extremely strong support for the proposition that the accused is a contributor to the DNA profile obtained from the steering wheel of the Jaguar.
91․In her email dated 26 August 2024, Ms Stone provided that in relation to the Jaguar steering wheel swab, the evidence is at least one million times more likely if the accused is one of three contributors to the mixed DNA profile than if the profile originated from a biological sibling of the accused and two unknown individuals.
92․The second statement and report, dated 14 February 2024, pertained to forensic testing conducted on a swab collected from the steering wheel of the BMW. A report on the examinations conducted on the BMW dated 4 April 2024, stated that the swab was collected on 17 October 2023. The forensic testing resulted in a mixed DNA profile from a minimum of three individuals being obtained. The accused could not be excluded as a contributor to that profile. The report stated that the evidence is at least 100 billion times more likely if the accused is one of three contributors to the mixed DNA profile than if the profile originated from three unknown individuals, unrelated to the accused, selected at random from the Australian Caucasian sub-population. Ms Stone concluded that this finding, when considered in isolated from other information, provides extremely strong support for the proposition that the accused is a contributor to the DNA profile obtained from the steering wheel of the BMW.
93․In her email, Ms Stone provided that in relation to the BMW steering wheel swab, the evidence is at least 378 million times more likely if the accused is one of three contributors to the mixed DNA profile than if the profile originated from a biological sibling of the accused and two unknown individuals.
94․The third statement and report, dated 15 February 2023, pertained to forensic testing conducted on a swab collected from the steering wheel of the Subaru WRX, as well two swabs collected from Red Bull cans found in the console of that vehicle and a swab of the vehicle’s “front passenger door grab”. A report on the examinations conducted on the Subaru WRX dated 24 February 2024, stated that the swabs were collected on 20 October 2023. The forensic testing of the swab from the steering wheel resulted in a mixed DNA profile from a minimum of two individuals being obtained. The accused could not be excluded as a contributor to that profile. The report stated that the evidence is at least 100 billion times more likely if the accused is one of the two contributors to the mixed DNA profile than if the profile originated from two unknown individuals, unrelated to the accused, selected at random from the Australian Caucasian sub-population. The forensic testing of the swabs from the Red Bull cans each found a DNA profile in which the accused could not be excluded as the source of that profile. The report stated that the evidence is at least 100 billion times more likely if the accused is the source of the DNA profile than if the profile originated from an unknown individual, unrelated to the accused, selected at random from the Australian Caucasian sub-population. The swab of the “front passenger door grab” revealed a mixed DNA profile from which the accused was excluded from being a contributor. Ultimately, Ms Stone concluded that the finding in relation to the steering wheel and Red Bull can swabs, when considered in isolation from other information provides extremely strong support for the proposition that the accused is a contributor to the DNA profiles found.
95․In her email, Ms Stone stated that in relation to the Subaru WRX steering wheel swab, the evidence is at least one billion times more likely if the accused is one of two contributors to the mixed DNA profile than if the profile originated from a biological sibling of the accused and an unknown individual. She further provided that in relation to the Red Bull can swabs, the evidence is at least one billion times more likely if the accused is the source of the DNA profile than if the profile originated from a biological sibling of the accused.
Oral evidence
96․Ms Stone gave evidence that every person’s DNA is unique unto themselves unless they have a biological identical sibling. Ms Stone explained that identical twins have “the same DNA”. She confirmed that she was unaware of an individual named “[redacted] Cross” and that she did not have reference to the DNA profile of any of the accused’s siblings when she determined the likelihood of a biological sibling of the accused being a contributor to the DNA profile.
97․Her additional opinions were achieved using a standard statistical formula which takes into account the varying percentages of DNA that siblings may share. The calculation of the likelihood ratio incorporates the chance of siblings having the same DNA profile. If she had been provided with a DNA sample from the accused’s sibling, it would have been possible to exclude the sibling from being a contributor to the DNA profiles identified, or conversely, prove that the siblings shared the same DNA profile. She stated that two brothers who are not identical twins having the same profile would be incredibly rare, to the extent that she was not even sure whether it was possible.
98․Ms Stone accepted that if there were two siblings who had the same DNA profile in the way that identical twins do, it would be impossible to exclude one from being a contributor to the other’s DNA profile.
99․Ms Stone gave evidence that the likelihood ratios were calculated using the default Australian Caucasian database. Recalculating the ratios using an Australian Aboriginal database would, in her opinion, be unlikely to change the overall result and the results would still fall within the “extremely strong category”.
100․Ms Stone agreed that it is possible for an individual wearing gloves to drive a vehicle without leaving DNA on the steering wheel. She further agreed that it is more likely that if the first driver of a vehicle wears gloves and a second person subsequently drives the vehicle without wearing gloves, the second driver is more likely to leave DNA on the steering wheel than the first. She stated that DNA could be left somewhere by virtue of secondary transfer however there is no way to identify the way in which DNA was left on an item from the DNA profile itself.
101․I accept the expert evidence of Ms Stone.
Evidence relied upon by the prosecution
102․The prosecution relied upon a circumstantial case to establish beyond reasonable doubt that the accused is the person identified as committing each of the offences before the Court. The prosecution identified various circumstances submitted to establish beyond reasonable doubt that the accused is the offender in relation to the first incident, that being the offences committed on 12 September 2023 (Counts 1, 2, 3 and 4 and summary transfer charges CC2023/12025 and CC2023/12026). They identified a separate set of circumstances to establish beyond reasonable doubt that the accused is the offender in relation to the second incident, that being the offences committed on 17 October 2023 (Counts 5, 6, 7, 8 and 9 and summary transfer charge CC2023/12030).
103․The prosecution outlined those circumstances as follows.
Circumstances said to establish the 12 September 2023 offences
DNA evidence from the Jaguar
104․As outlined above, the swab collected from the steering wheel of the Jaguar stolen from the premises at [redacted] Street, Yarralumla, contained a mixed DNA profile. Ms Stone concluded that there is extremely strong support for the proposition that the accused is a contributor to this profile. The screenshots from the CCTV footage at the petrol station show that the individual driving the vehicle was ungloved, which, in the prosecution’s submission, supports the accused having left his DNA on the steering wheel while driving.
Black hooded jumper
105․The CCTV footage from [redacted] Street, Yarralumla, depicted one of the three offenders wearing a black hooded jumper with blue capitalised text across the chest. Some of the letters can be made out on the footage. This jumper is consistent in appearance with a hooded jumper found in the bedroom of the accused during the execution of a search warrant on 26 October 2023. The prosecution conceded that a young adult male owning a black hooded jumper is not in itself unusual, however, they submitted that the royal blue capitalised insignia allows it to be more uniquely identified. The prosecution also relied upon the way in which the jumper was found inside the accused’s bedroom. It was located inside out, within a high visibility shirt and strewn to the side of the bed. They submitted that this is consistent with recent use or wear as opposed to if the jumper had been found folded and buried inside the wardrobe.
Black sneakers
106․The CCTV footage from [redacted], Yarralumla, depicted the same offender wearing black sneakers with a low ankle cut. These shoes are consistent in appearance with the shoes found in the bedroom of the accused during the execution of the search warrant.
Black jogger-style pants
107․The CCTV footage from [redacted] Street, Yarralumla, depicted the same offender wearing black jogger-style pants, consistent in appearance with pants the accused can be seen wearing on body-worn camera (BWC) footage taken when he was arrested.
Physical similarities of individual depicted in CCTV footage screenshot from the EG Fuel Company station in Mawson
108․The screenshots taken from the CCTV footage at the petrol station depict an individual consistent in physical appearance with the accused, driving the Jaguar that was stolen from the [redacted] Street premises approximately 17 hours earlier. The prosecution relied on particular consistencies in physical appearance, being the individual’s moustache, stature, facial structure and complexion.
Clothing worn by individual depicted in CCTV footage screenshot from the EG Fuel Company station in Mawson
109․The individual depicted in the screenshots is wearing clothing consistent with the clothing worn by the offender described in circumstances 2, 3 and 4, in the CCTV footage from [redacted] Street, Yarralumla. In particular, the royal blue insignia across the chest of the black jumper can be made out.
Black cap
110․CCTV footage from [redacted] Street, Yarralumla, depicted the offender wearing a black cap consistent in appearance with the cap included at Annexure A to the agreed facts, which was located inside a unit associated with the accused during the execution of the search warrant.
Connection between [redacted] Street and [redacted] Street
111․The temporal and geographical proximity of the [redacted] Street, Yarralumla address and [redacted], Yarralumla address, together with the similarities between the three individual offenders, establish that it is the same three individuals in both sets of footage.
Wedge pump
112․A wedge pump was located inside the bedroom of the accused during the execution of a search warrant on 26 October 2023. It is a device that can be used to open the doors to locked vehicles. The complainant’s evidence is that the Jaguar was locked at the time it was stolen.
Circumstances said to establish the 17 October 2023 offences
DNA evidence from the BMW
113․As outlined above, the swab collected from the steering wheel of the BMW stolen from the premises at [redacted], Nicholls, contained a mixed DNA profile. Ms Stone concluded that there is extremely strong support for the proposition that the accused is a contributor to this profile. The BMW was located and seized by police approximately five hours after it was stolen.
Complainant’s driver’s license found in Subaru WRX
114․The accused has admitted to driving the stolen Subaru WRX on 18 October 2023, the day after the incident in Nicholls. The complainant’s driver’s license stolen from the premises in Nicholls was found inside the main cabin of the Subaru WRX. The Subaru WRX was located and seized by police on 20 October 2023, three days after the burglary and theft in Nicholls.
Suggestion that the Subaru WRX was used in the commission of the Nicholls offences
115․The accused has admitted to driving the stolen Subaru WRX on 18 October 2023, the day after the incident in Nicholls. The following circumstances suggest that the Subaru WRX was used in the commission of the offences in Nicholls:
(a)A vehicle consistent in appearance with the Subaru WRX is depicted on CCTV footage departing Whiteside Circuit moments after the stolen BMW is seen entering Whiteside Circuit, where it was abandoned by the driver, at 9:05am on 17 October 2023.
(b)A vehicle consistent in appearance with the Subaru WRX is seen driving slowly down Whiteside Circuit, approximately 30 to 40 minutes prior to the offender being at the premises at [redacted], Nicholls.
(c)The complainant’s driver’s license that was stolen from the premises at [redacted], Nicholls, was found inside the main cabin of the Subaru WRX.
Complainant’s credit card use at McDonald’s Queanbeyan
116․An individual used the complainant’s credit card to make a purchase at McDonald’s in Queanbeyan in the BMW less than two hours after the BMW was stolen. The following circumstances are consistent with this individual being the accused, and therefore consistent with the accused being in recent possession of the vehicle:
(a)CCTV footage from McDonald’s Queanbeyan depicted an individual wearing a black jumper with royal blue insignia across the chest. This jumper is consistent in appearance with the jumper found in the accused’s bedroom on 26 October 2023.
(b)CCTV footage from McDonald’s Queanbeyan depicted that the driver of the vehicle has an earring in their right earlobe that is consistent with the earrings seized that the accused was wearing on 26 October 2023.
(c)CCTV footage from McDonalds’s Queanbeyan depicted that the driver’s complexion is consistent in appearance with the accused.
Black hooded jumper
117․The individual referred to above at paragraph [116](a) is wearing a black jumper with insignia across the chest, which is consistent with the offender at [redacted], Nicholls, who was wearing a hooded jumper with insignia across the chest.
Hypothesis consistent with innocence identified by the accused
118․The accused proposed two hypotheses consistent with innocence. For the purposes of these reasons it is only necessary to deal with the reasonable hypothesis consistent with innocence which the prosecution has failed to exclude.
The accused’s brother was responsible for committing each of the offences and the accused did not play any role in the offending
119․The accused submitted that the black hooded jumper which resembles the one found in the accused’s bedroom is not unique, and it cannot be positively concluded that the jumper seized was the one depicted in the CCTV footage in relation to the first in time burglary. Even if assumed that it was the same jumper, it remains possible that it is [the accused’s brother] who was depicted wearing it. The accused pointed to the significant likelihood of siblings sharing clothing or leaving their belongings behind in their sibling’s room. Further, the clothing relied upon in relation to the second in time burglary is generic and cannot be strongly linked to either of the Cross brothers. The accused therefore submits that the clothing evidence strand of the prosecution’s cable does not exclude hypothesis.
120․The screenshots taken from the CCTV footage at the petrol station in Mawson depicted an individual who, the accused contends, more closely resembles [the accused’s brother] than Bronson Cross. The individual depicted has a thinner moustache more akin to the one that [the accused’s brother] has at the time of the search warrant, although the accused conceded that the CCTV footage and the BWC footage from the search warrant are captured a month apart which permits the possibility of facial hair having changed over time.
121․The only unique feature captured on the CCTV footage from McDonald’s Queanbeyan is that the individual wore a diamond earring in his right ear. As shown on the BWC footage during the search warrant, [the accused’s brother] also wears a diamond earring which matches the depiction in the CCTV footage.
122․The accused submitted that the accused’s admission as to driving the stolen Subaru WRX on 18 October 2023, does not exclude the possibility that [the accused’s brother] drove the vehicle on 17 October 2023. It was submitted to be entirely possible that one brother drove the vehicle one day, and the other brother drove the vehicle the next day. Even if found that the dark coloured sedan in the Nicholls CCTV footage is in fact the Subaru WRX, it does not exclude the possibility of the accused’s hypothesis.
123․In the record of interview, investigating police questioned the accused about having found “another” item suspected of being stolen during a burglary in [the accused’s brother]’s bedroom. The accused submitted that this supports the inference that [the accused’s brother] is responsible for the offences before the Court as it demonstrates a penchant for burglaries or thefts. The accused also highlighted that no stolen items, from the burglaries before the Court or otherwise, were located in the accused’s bedroom.
124․Further, the accused’s answer to question 99 in the record of interview is that the pair of pants referenced by the police could possibly be his, or could be his brother’s. The accused submitted that this reinforces the proposition that the accused may wear similar clothing, or share items of clothing, with his brother. It is further reinforced by the police having found an identical hat to the one worn by the accused during the Weston Creek burglary, in [the accused’s brother]’s bedroom.
125․The accused also pointed to the prosecution’s decision to not provide a complete seizure record from the search warrant executed on 26 October 2023. In the accused’s submission, this leaves open the possibility of there having been multiple black hooded jumpers, sneakers and pants located in either of the brother’s bedrooms which match the description relied upon by the prosecution.
126․Lastly, the accused addressed Ms Stone’s conclusions providing extremely strong support for the accused as the contributor to the mixed DNA profile. The accused noted that there is no evidence that established [the accused’s brother]’s age. The accused submitted that the striking similarity in their physical appearances, as demonstrated in the BWC footage, gives rise to the possibility that they are identical twin brothers. The accused submitted that this is fatal to the DNA evidence relied upon by the prosecution as the possibility of the accused and [the accused’s brother] having identical DNA has not been excluded.
Directions
Onus and standard of proof
127․The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. If the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt then I must find him not guilty.
Fact finding and inferences
128․The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will.
129․I may draw inferences from the facts that I find have been established by the evidence. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
130․There was only one witness in the trial, Ms Stone. There was no basis to reject any part of her evidence and I have already recorded that I am satisfied that I can accept that evidence.
The accused did not give evidence
131․The accused did not give evidence in the proceedings. There is no obligation on him to give or call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.
Identification evidence
132․In this case the prosecution asks that I draw the conclusion that the offender captured in the CCTV footage at each of the residences, at the petrol station and at McDonald’s Queanbeyan is the accused. I must exercise special caution before I draw the conclusion that it is the accused in the footage. Special caution is required because the experience of the law is that mistakes concerning identity are made and can be easily made.
133․Special attention or care is necessary because of the possibility I might be mistaken. The experience of criminal courts, over many years, both in Australia and overseas, has demonstrated that conclusions drawn about identification may turn out to be unreliable. There have been some notorious cases over the years in which identifications have been found to be wrong after innocent people have been convicted. I must examine the evidence very carefully, conscious that there have been many occasions where conclusions about identification reached by judicial officers have been shown to be wrong.
134․In circumstances where I am asked to make an assessment of the accused’s physical appearance in Court in order to compare it with the physical appearance of the person in the footage tendered, I bear in mind the particular risks of in-court identification “usually performed in circumstances that strongly suggest the answer that is ultimately given”: Festa v The Queen [2001] HCA 72; 208 CLR 593 (Festa) at 601 [18].
Expert evidence
135․In this matter, various expert opinions of Ms Stone were provided. While the admissibility of the opinions expressed in her email were challenged, her expertise and the reliability of her findings were not challenged.
136․The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.
137․In the present case, expert evidence was admitted in the area of DNA testing and analysis. This topic is within the witness’s expertise but is likely to be outside the experience and knowledge of the average lay person.
138․The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt.
139․I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue to which the expert evidence relates.
Circumstantial evidence
140․The prosecution case against the accused is circumstantial. There is no direct evidence of the accused committing any of the offences before the Court. Instead, the prosecution asks me to draw the inference that the accused was the offender from all the circumstances which have been proved.
141․The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused committed the offences is the only rational inference that can be drawn from the whole of the circumstances established to my satisfaction by the evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence.
142․In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.
143․As Baker J observed in Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 at [65], for practical purposes sometimes a circumstantial case is described as a "link in the chain" case or as a "strand in the cable" case. This case is properly characterised as a “strand in the cable” case, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. This is because of the capacity of a body of evidence to have a cumulative effect. It is not necessary for the various factual "strands" to be proved beyond reasonable doubt before they can contribute to the cumulative effect of a body of evidence. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts.
144․I remind myself that this case, reliant as it is upon indirect, circumstantial evidence, does not result in a case weaker than one that relies upon direct evidence or eyewitness accounts. The question remains in either case; has the prosecution proved its case beyond reasonable doubt? Before I can determine that the prosecution has proved the elements of the offence to the requisite standard, I must be satisfied that the inference that the accused is the person who committed the offences has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit.
Consideration
145․Notwithstanding an issue raised by the accused as to the particulars of Count 4 and Count 8, sensibly there was no dispute that the conduct relied upon by the prosecution established the elements of each count on the indictment beyond reasonable doubt. Accordingly, I am satisfied beyond reasonable doubt that the conduct as particularised by the prosecution established the elements of each offence on the indictment, as well as the transferred charges. The critical issue is whether the prosecution have established the accused as the offender for each count on the indictment beyond reasonable doubt.
146․The prosecution submitted that the facts established by the circumstantial evidence in this case lead to a conclusion that the only inference available is the guilt of the accused. That the accused was the offender captured in the CCTV footage at all three residences, at McDonald’s Queanbeyan and in the screenshots from the CCTV footage at the petrol station, was reinforced by the extremely strong support for the accused contributing to the mixed DNA profile. The prosecution accepted that while the case is not entirely reliant on the DNA evidence, it was a substantial strand in the cable.
147․This being a circumstantial case, the accused cannot be found guilty unless there is no rational explanation for the circumstances established by the evidence other than the accused being guilty of the offences. In R v Hillier [2007] HCA 13; 228 CLR 618 at [46] Gummow, Hayne and Crennan JJ expressed the test as “no other explanation than guilty is reasonably compatible with the circumstances”.
148․The prosecution submitted that taken together, the evidence excludes all reasonable hypothesis consistent with innocence including that the accused’s brother was the perpetrator.
149․This might be so if the evidence established that the accused and his brother are not identical twins. The evidence does not establish that fact. There is no obligation on the accused to prove anything. At all times the prosecution bears the burden of proving their case beyond reasonable doubt. There is no evidence before me as to the nature of the sibling relationship between the accused and his brother.
150․This is not to say that in every case it will be necessary for the prosecution to establish that an alleged perpetrator is not an identical twin. In this matter though, as I will explain, it is a fundamental flaw in the prosecution case.
151․First, it can be accepted as a matter of common sense and life experience that identical twins generally present to the world with striking physical similarity.
152․The statement of Senior Constable Micheal Witteveen established that the accused’s brother “[redacted] Cross” was present at [redacted], Karabar, when the search warrant was executed. It is an agreed fact that the accused’s brother slept in the converted garage of that residence. It is clear from the portions of the BWC footage in evidence, consistent with Senior Constable Witteveen’s statement and the record of interview with the accused, that the accused’s brother lived with him at that address.
153․It is obvious and indeed almost immediately apparent from the BWC footage, that the brothers bear striking physical similarity with each other.
154․Counsel for the accused tendered a still image taken from the BWC footage as part of the application to exclude evidence. That image demonstrated the brothers to be strikingly similar in appearance save for what appears to be a more substantial moustache on the accused. In the still image the brothers are looking up to the camera seated in a room of the residence. Of course, there is a possibility that the angle of the still image and the precise moment at which the image was captured could enhance their likeness to an extent not supported by the BWC footage.
155․This is not so. The BWC footage itself reveals their similarity to be even more striking when their facial features, physical appearance, movements and mannerisms are observed. In the footage the accused does appear to have a slighter build than his brother though in this regard the accused is wearing a slimmer fit, black t-shirt and his brother a loose fitting, boxy style white t-shirt. In the BWC footage it can be observed that both brothers have a moustache, and the observation from the still image that the accused’s moustache is more substantial than his brother’s is confirmed. There is no evidence before me as to the physical appearance of the accused’s brother at the time the offences were committed. The CCTV still image from the EG service station established that the offender likely had a moustache but was not capable of identifying the characteristics of it.
156․The evidence established that the accused was born on 30 September 2003 making him twenty years of age at the time the search warrant was executed and the BWC footage was recorded. There was no evidence as to his brother’s date of birth. There was nothing about the physical appearance of the accused’s brother in the BWC footage that would provide a basis to find that in it, he is older or younger than twenty years of age.
157․The shared facial features of the brothers observed from the BWC footage include a straight, prominent nose, sloping heavy brows, the same skin tone, the same shaped eyes, and the same shaped jaw and chin. They share high cheekbones. Neither their side profile nor their body movement revealed in the BWC footage provides a basis to reconsider a characterisation of them as strikingly physically similar. The video footage of the accused participating in the record of interview does not assist to identify any distinguishing feature of the accused as compared with his brother. In the BWC footage the brothers can be distinguished by their clothing and by the fact that it is the accused who was arrested. Having viewed the BWC footage I cannot exclude as a reasonable possibility that the brothers are identical twins.
158․The striking physical similarity of the brothers is significant for two reasons.
159․First, noting the special caution required, the CCTV evidence from the residences and the Queanbeyan McDonald’s drive-through service is incapable of establishing the identity of the person depicted with certainty. This is made more acute when attempting to differentiate two individuals who appear substantially similar. The CCTV footage from the residences reveals that the person nominated by the prosecution to be the accused had his face almost entirely concealed. The most that could be said about that footage is that the body shape of the offender is not inconsistent with the accused, nor indeed his brother. I will come to the clothing in a moment.
160․The McDonald’s drive-through service footage established that the offender was wearing a “covid style” face mask that concealed much of his face from his nose down. It can be observed that the driver, alleged to be the accused, had an earring in his right ear. The earring had a diamond like appearance. As captured on the BWC footage, the accused’s brother was wearing diamond like earrings in both ears when the search warrant was conducted on 26 October 2023. Two diamond like earrings were seized from the accused on that day, consistent with his appearance in the BWC footage.
161․Neither the CCTV footage from the residences nor the McDonald’s Queanbeyan footage exclude the accused’s brother as the person depicted in them.
162․The close up still images of the driver of the Jaguar stolen from the Yarralumla residence at the EG service station is of poor quality and as a result has poor definition. It is grainy and blurred and does not allow for the facial features of the person depicted to be clearly identified. The image captured from further away has much better definition but does not allow for clear observations to be made of facial features of the person in the image because of the distance at which it is captured. It can generally be observed from those images that the person depicted appears to be male, has a frame and shape consistent with the accused and is wearing clothing similar in appearance to the offender captured in the CCTV footage at the Yarralumla residences. This includes a black hooded jumper with blue insignia on the front and a black cap with a white marking. The images do not exclude the accused’s brother as the person depicted in them.
163․The second reason that the striking physical similarity between the brothers is significant goes to the reasonableness of the hypothesis consistent with innocence.
164․This is not a matter where the possibility of the accused and his brother being identical twins is without foundation. The portions of BWC footage included as part of the agreed tender bundle revealed there to be striking physical similarity between the accused and his brother. Accordingly, the observations that can be made of the brothers on the BWC footage precludes the possibility that they are identical twins from being dismissed as patently unreasonable.
165․The unequivocal evidence of Ms Stone is that identical twins have the same DNA profile. That is to say, it is not possible to differentiate one identical twin from the other, via the results of DNA analysis. The DNA evidence does not exclude the hypothesis consistent with innocence.
166․In circumstances where the DNA evidence cannot provide a basis to differentiate between the accused and his brother, the question becomes whether any of the other evidence in combination does exclude the accused’s brother as the offender.
167․For the reasons that follow, the other circumstances relied upon by the prosecution do not exclude the reasonable hypothesis consistent with innocence.
168․The execution of the search warrant saw police locate a black hooded jumper with blue writing inside out within a yellow high visibility shirt on the floor of the accused’s bedroom. The image taken of the black hooded jumper shows the words “HOOD RICH” are in large blue writing across the chest area of the hooded jumper. The black top worn by the offender in the CCTV footage from the [redacted] Street, Yarralumla residence has a large blue marking across the chest area. The top worn by the offender when captured on CCTV at the Nicholls residence was also hooded with an insignia on it (there is no evidence as to the colour of the hooded jumper or the writing on it). The black top worn by the driver of the stolen Jaguar at the EG service station also appears to have blue writing across the chest area.
169․The prosecution submitted that black shoes found in the accused’s bedroom and black tracksuit style pants seen on BWC footage are like those worn by the offender. This is so with respect to the shoes. The tracksuit pants on the floor on the accused’s bedroom that were not seized but can be seen in the BWC footage appear to have white writing on the crotch area. The tracksuit pants in the footage do not share that feature. There was nothing distinctive or unusual about the black shoes seized or those that can be observed in any of the footage.
170․The presence of black shoes and a black hooded jumper with blue writing in the accused’s bedroom does not exclude the reasonable hypothesis consistent with innocence. The brothers live in the same residence and appear physically capable of sharing clothing. The record of interview provides some evidence of this practice when a hat found in the accused’s brother’s bedroom is suggested to the accused to be “exactly the same” as a hat worn by an offender in another burglary to which the accused ultimately pleaded guilty. Further the accused is asked about a pair of grey pants with a “little brown patch” said to be in a photograph of the offender from the Weston Creek burglary. The accused replies that he “possibly” owns a pair matching that description “or it could be my brother’s. I’m not sure”.
171․There is a reasonable inference not excluded by the evidence that the brothers either wore clothing belonging to, or kept in the bedroom space of, the other. This is consistent with life experience and common sense. This inference is not undermined by the way the black hooded jumper was found in the accused’s bedroom. That he may have recently worn it, does not exclude his brother wearing it when the offences were committed.
172․Annexure A to the agreed facts is a picture of a black cap with a white bull apparently stitched onto the front facing panel of the cap and a large, round silver and black sticker on the brim of the cap. The appearance of the cap is consistent with a cap worn by the offender when they were captured on CCTV footage from the [redacted] Street, Yarralumla address. There is no evidence as to the hat being unusual or particularly distinctive. The hat was seized by police during a search warrant executed at 2/17 [redacted], Oaks Estate on 25 October 2023. The prosecution submitted this was an address with an “association” to the accused. The extent of the “association” of the accused with that address is, on the evidence, limited.
173․The “association” on the evidence can only be by virtue of the stolen Subaru WRX being located near that address on 20 October 2023. The only evidence of an association apart from that fact, is to be found in the statement of Detective Inspector Elizabeth Swain. Detective Inspector Swain stated that she was at 19 [redacted], Oaks Estate on 20 October 2023 when she saw a person exit a garage of the unit complex with two others and walk towards the stolen Subaru WRX. Detective Inspector Swain stated upon seeing the police vehicle, the person turned and walked away.
174․Detective Inspector Swain stated that she “suspected” the person to be the accused. She described the person as wearing black pants, black hooded jumper with a moustache and of slim build. There is no information in the statement of Detective Inspector Swain as to how she was able to “suspect” that the person was the accused. Further there is no evidence as to how she was able to suspect the accused was the person, as opposed to his brother. There is no evidence as to the distance between Detective Inspector Swain and the person she observed or the period she was able to observe the person.
175․The address nominated by Detective Inspector Swain in her statement where she observed who she suspected to be the accused, was 19 [redacted], Oaks Estate. According to the agreed facts the black hat was found by police at a unit at 17 [redacted], Oaks Estate. This address is consistent with the statement of Senior Constable Elias Nikias who nominates 17 [redacted], Oaks Estate as the address where the search warrant was to be executed. His statement identified Constable Mitchell Stirling as the officer to whom he signed the warrant over to for that address.
176․There is no statement from Constable Stirling in the agreed tender bundle. The circumstances of the location of the hat, who lived at the residence and who was at the residence when the warrant was executed are entirely unknown. There is no forensic evidence in relation to the seized hat pictured at Annexure A. There is no explanation on the evidence as to the conflict between 19 and 17 [redacted], Oaks Estate.
177․In all of the circumstances established by the evidence, the weight that could be placed on the “association” of the accused with the address where the seized hat was located, is very limited.
178․The fact that the accused pleaded guilty to driving the stolen Subaru WRX, said to be the “getaway” vehicle for the Nicholls residence offences, on 18 October 2023 does not exclude the reasonable hypothesis consistent with innocence. The plea of guilty to driving the vehicle does not exclude the possibility that his brother used it in the commission of the offences in connection with the Nicholls residence. On the evidence before me those events are not mutually exclusive.
179․The record of interview with the accused detailed that police located at least one item stolen in an unnamed burglary in the accused’s brother’s bedroom. Counsel for the accused invited me to consider this factor as relevant to the reasonable hypothesis consistent with innocence. Such an approach would engage impermissible tendency reasoning in my view, and I make it clear that I have not considered this factor in my assessment.
180․Finally, the wedge pump found in the accused’s bedroom cannot be attributed any weight. There was no tendency application filed by the prosecution and such reasoning is therefore not permitted. While the prosecution pointed to the evidence that the stolen Jaguar was locked when it was stolen, the keys to the Jaguar were inside the premises and included as an item stolen in the burglary. The irresistible inference being that access to the locked vehicle was facilitated by the theft of the keys from inside the residence. There is no other evidence demonstrating that either of the two other stolen vehicles, the BMW from Nicholls or the Subaru WRX from Denman Prospect, were accessed using a wedge pump.
181․The evidence demonstrates that the hypothesis consistent with innocence is a reasonable one. It is not farfetched or fanciful. It is clearly open on the evidence before the Court in circumstances where it cannot be excluded that the accused’s brother is his identical twin, and the evidence does not allow for the accused’s brother to be otherwise excluded as the offender. For example, if travel, bank or other records or evidence relied upon by the prosecution revealed that he was out of the jurisdiction when the offending occurred or if it was established to be otherwise impossible for him to have committed the offences, this would be significant evidence as to the reasonableness of the hypothesis. Further, if there was a feature of the offender that permitted some distinction to be drawn as between the brothers, this could be sufficient to render the hypothesis unreasonable and unavailable on the evidence.
182․As the evidence stands there is neither evidence supporting it to be unlikely or impossible, nor evidence of any distinctive characteristics, that would provide a basis to exclude the reasonable hypothesis consistent with innocence.
Findings
183․I have determined that the evidence does not exclude the reasonable possibility that the accused’s brother is his identical twin. Though not a complex piece of evidence, potentially readily available, its absence has proven critical for the prosecution case.
184․I reiterate an earlier observation; my conclusion does not stand for the proposition that in every instance where an allegation is made against an accused, the prosecution necessarily must exclude that the accused is not an identical twin. From the outset of this case, the circumstances clearly pointed to it being an issue that required attention. The failure to adduce evidence as to the nature of the accused’s sibling relationship with his brother has, in the circumstances of this case for the reasons I have explained, left open a reasonable hypothesis consistent with innocence.
185․The prosecution has failed to exclude a reasonable hypothesis consistent with innocence, that being that the accused’s brother was the offender. Accordingly, the accused must be acquitted on all counts on the indictment and on the transferred, related charges.
Verdicts
186․For the above reasons, I return the following verdicts:
(1)The accused is not guilty of Count 1.
(2)The accused is not guilty of Count 2.
(3)The accused is not guilty of Count 3.
(4)The accused is not guilty of Count 4.
(5)The accused is not guilty of Count 5.
(6)The accused is not guilty of Count 6.
(7)The accused is not guilty of Count 7.
(8)The accused is not guilty of Count 8.
(9)The accused is not guilty of Count 9.
(10)The accused is not guilty of the transfer charge of drive suspended (C2023/12025).
(11)The accused is not guilty of the transfer charge of drive suspended (CC2023/12030).
(12)The accused is not guilty of the transfer charge of make off without payment (CC2023/12056)
| I certify that the preceding one hundred and seventy-nine [186] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: O Ferguson Date: 6 September 2024 |
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