Donnelly v Richardson - [2017] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DONNELLY -v- RICHARDSON [2017] WASC 194

CORAM: FIANNACA J

HEARD: 15 MAY 2017

DELIVERED : 17 JULY 2017

FILE NO/S: SJA 1006 of 2017

BETWEEN: WILLIAN SCOTT DONNELLY
Appellant
AND
ROBERTA LYNN RICHARDSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HEANEY
File No  :PE 114601 of 2014, PE 114602 of 2014

Catchwords:

Criminal law - Appeal against conviction - Circumstantial case - Whether evidence supported a verdict of guilty - Whether the trial magistrate erred in law by taking into account the absence of an explanation from the accused for the presence of his DNA on a pickaxe at the scene - Application of Weissensteiner v The Queen- Appeal out of time - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 10

Result:

Leave to appeal out of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N Sinton
Respondent: Mr B Murray

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Cases referred to in judgment:

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
CMH (a child) v Bower [2009] WASC 347
Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158
Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Knuckey v The Queen [2004] WASCA 199
Lancaster v The Queen [1989] WAR 83
Norton v The State of Western Australia [2010] WASCA 115
Pickett v Fuderer (1998) (Unreported, WASC, Library No 980475, 27 August 1998)
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Robertson v The State of Western Australia [2009] WASCA 83
The State of Western Australia v Olive [2011] WASCA 25
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217
Wells v The State of Western Australia [2017] WASCA 27
Wimbridge v The State of Western Australia [2009] WASCA 196

Table of Contents

Introduction
The evidence at trial

Gordon Thompson
Chantal Uren
Jason Philgate
Louise King

The parties' submissions at trial
The magistrate's decision
The appeal
The legislative framework
Application for extension of time
The grounds of appeal
Legal principles
The merits of the grounds of appeal

Ground 1

Proof of absence of consent
Proof that the appellant was involved in the burglary
Fitzgerald v The Queen
The circumstances of this case

Ground 2

Conclusion

FIANNACA J:

Introduction

This is an appeal against the appellant's conviction after trial in the Magistrates Court at Perth on 10 December 2015 of the offences of home burglary and stealing (which arose out of the home burglary). The appellant was facing other charges and, for reasons that are not relevant for present purposes, he was not sentenced until 16 August 2016, at which time he was sentenced by another magistrate. He was sentenced to imprisonment for 15 months for the home burglary and imprisonment for 3 months to be served concurrently for the stealing.
The prosecution case was that, at some time between 11.59 pm on 15 October 2014 and 4.30 am on 16 October 2014, a burglary was committed on a home in Como. A safe was taken from inside the house to the rear patio, where a pickaxe was used to attempt to open the safe. The pickaxe was later found on top of the safe, which was left on the patio. The pickaxe belonged to the occupier of the house (the complainant) and had been in a garage at the property. DNA material was found in a swab from the handle of the pickaxe. Analysis of that material produced a mixed DNA profile. The major component of that profile matched the appellant's DNA profile.
The appellant did not give evidence.
The trial magistrate was satisfied beyond reasonable doubt, on the evidence given by the complainant, that the offences of burglary and stealing had been committed. He was also satisfied that the only reasonable inference in all the circumstances was that the appellant had committed the burglary and had attempted to open the safe with the pickaxe. In drawing that conclusion, he took into account the fact that the accused had not given an explanation for the presence of his DNA on the handle of the pickaxe, relying on Weissensteiner v The Queen.[1]
[1] Weissensteiner v The Queen[1993] HCA 65; (1993) 178 CLR 217.
The appellant applies for leave to appeal on two grounds. Those grounds, which are set out later in these reasons, in essence allege first that the evidence did not support a verdict of guilty, so that there has been a miscarriage of justice, and secondly that the magistrate erred in law by taking into account the absence of an explanation from the accused for the DNA matching his profile found on the pickaxe in drawing the inference that the accused was the person who committed the home burglary and the stealing.
The appeal was commenced more than four months out of time. It cannot proceed without an order of this court granting an extension.
On 14 March 2017, the court ordered that both the application for an extension of time to appeal and the application for leave to appeal were to be heard with the appeal.

The evidence at trial

The case against the appellant was circumstantial. It relied on inferences to be drawn from the evidence of four witnesses.

Gordon Thompson

Gordon Thompson was one of the occupants of the residence that was burgled. Although he was not asked directly, it would appear from his evidence that he was the owner or part-owner of the house. He had been living there for 15 years. At the time of the burglary, he had two tenants living with him. A section of his home at the back had been converted into a hairdressing salon. He also used another room in the house as an office.
On the night in question, Mr Thompson had fallen asleep in an armchair in front of the television. One of his tenants woke him around 3.30 am and asked, 'What was the noise?' Mr Thompson proceeded into the hairdressing salon and discovered that the external doors were open and the alarm had been disabled. He also discovered that the safe was missing from the office, which was three to four metres distance from the salon. There were things strewn on the floor. The office was not part of the salon. Mr Thompson used the office for work and for his 'library'. It was kept locked. The tenants did not have a key to the office.
Mr Thompson found the safe, which was very large, outside on its back under the pergola. A pickaxe that he said belonged to him, and which he believed had been in the garage, was found on top of the safe. He had last seen the pickaxe being used in 2013 when his girlfriend used it in the garden. He had moved the pickaxe from the laundry to the garage after that, but he could not recall when. He could not recall the last time he saw the pickaxe. However, in cross-examination he agreed that the last time he saw the pickaxe was while his girlfriend was residing with him. She left to go abroad in January 2014, so he agreed it was at some point in 2013 that he last saw the pickaxe.
The garage where he had stored the pickaxe was located some 30 m from where the safe was. He said that everyone in the house had access to the garage.
Mr Thompson also found that his walk-in wardrobe upstairs had been 'ransacked' and his wallet had been stolen.
Mr Thompson said the tenants had keys to the house, but not to the office. He did not know who had committed the burglary.

Chantal Uren

Constable Chantal Uren was a police officer with the South‑East Metropolitan Forensics section. She was the exhibits officer during an examination of the residence at which the burglary occurred. She collected DNA swabs from 'two tools that appeared to have been used to open [the] safe'. One was a screwdriver, which had a bend in it, and the other was a 'large axe‑type tool' that was lying on top of the safe. Photographs were tendered which show it was a pickaxe. Constable Uren said there was damage to the safe, which appears to have been a basis for concluding that the items were used in an attempt to open the safe. The swabs taken from the screwdriver and pickaxe were placed in sterile plastic sleeves which were sealed and labelled CU1 and CU2 respectively. The items were given unique barcode numbers.
Constable Uren gave evidence about the steps taken to secure such exhibits before they are forwarded to Pathwest for analysis. She was not challenged in respect of that evidence.
Constable Uren gave evidence, confirmed by photographs, that other items were found in the vicinity of the safe, including a large red trolley (which would have been capable of carrying the safe) and a hard hat. There was no evidence that those items were swabbed or otherwise examined.
In cross-examination, Constable Uren said that only the items found outside were subjected to forensic examination. It would appear from her evidence that no forensic examination was conducted of the areas from which the safe was removed or the wallet was stolen, or of the garage from which Mr Thompson said the pickaxe had been removed. Constable Uren said that nothing suitable for testing for fingerprints was found inside the house.

Jason Philgate

Detective Senior Constable Jason Philgate was a police officer at Kensington Detectives. On 25 November 2014, the appellant attended the station and asked to see him. He placed the appellant under arrest on suspicion of burglary. The appellant declined to participate in an interview. Detective Philgate charged the appellant with the offence. He took a DNA sample from the appellant and released him on bail. He gave detailed evidence of the process of taking the DNA sample in the form of a buccal swab and the steps taken to prevent contamination and secure the swab in a sealed 'tamper evident' bag with the appellant's identifying particulars.
Detective Philgate gave evidence that the appellant declined to participate in an electronically recorded interview, but during the process of taking the DNA sample from him, the appellant denied being at the address where the offence was alleged to have been committed. The evidence was given without objection. Detective Philgate was not cross‑examined about it.
During the course of Detective Philgate's evidence, defence counsel indicated that continuity of the DNA sample was not in issue. Although she cross-examined the witness about the absence of any mention in his statement of the fact he had taken the DNA swab, he was not challenged on his evidence that he had taken the swab and what was done to secure it.

Louise King

Louise King is a forensic scientist employed by PathWest, the government laboratory responsible for conducting DNA testing of forensic samples collected by police and analysis of the results. She gave evidence that, on 23 October 2014, her office received two swabs relevant to this matter, labelled CU1 and CU2. CU1 was labelled as 'screwdriver handle'. CU2 was labelled as 'axe handle'. On 24 August 2015, her office received a reference buccal swab identified as having come from the appellant.
DNA was recovered from the swab labelled CU1 ('screwdriver handle'). On analysis it revealed a mixed DNA profile. It was not possible to determine how many people had contributed to the profile, so an interpretation could not be given. It was not suitable for further analysis.
DNA was also recovered from the swab labelled CU2 ('axe handle'). Analysis of that DNA identified a mixed profile consistent with having come from three individuals. The DNA profile of a contributor within that mixture matched the appellant's DNA profile. The contributor whose profile matched the appellant's profile contributed 90% of the DNA in the mixture, and that person's profile was 'quite easily' identified. The unidentified persons each contributed about 5% of the mixture.

The parties' submissions at trial

In essence the prosecution's submission was that the magistrate could be satisfied that the swabs analysed by Ms King were the swabs taken from the screwdriver and pickaxe by Constable Uren and the buccal swab taken from the appellant. On the basis of Ms King's evidence, the magistrate could be satisfied beyond reasonable doubt that the appellant was a contributor to the DNA on the pickaxe handle. The irresistible inference was that the pickaxe was used in an attempt to prise open the safe. The only way in which the appellant's DNA could have got on the pickaxe was if he was at the premises at the time of the burglary and 'involved in the course of the burglary'. The prosecutor submitted there was no evidence the appellant had permission to be at the premises or, more specifically, in the house. The prosecutor submitted that there was an irresistible inference that the appellant committed the offence, either himself or in company with other offenders.
Defence counsel submitted that the prosecution case was reliant on a DNA swab from an axe which the complainant, the owner of the axe, had not seen since 2013. His two tenants had access to the garage and someone could have taken the axe from the garage without his knowledge. I note that the latter proposition is obvious, as clearly, according to Mr Thompson, someone did use the axe without his knowledge at or about the time of the offence, as the axe was found on the safe. If defence counsel's proposition was intended to link either of the tenants to the use of the pickaxe at the relevant time, it was speculative and would not, in any case, overcome the connection of the pickaxe to the appellant by the DNA evidence.
Defence counsel further submitted that the pickaxe was a moveable object which was found outside, and, taken at its highest, the DNA evidence did not place the appellant inside the house. She further submitted that, because it was a moveable object, it did not place the appellant at the address where the offence was committed; it only established that 'at some between 2013 and 16 October 2014 [the appellant] has come into contact with the handle of an axe.' The magistrate regarded the submission as amounting to counsel giving evidence from the bar table. After some debate about whether that was the case, defence counsel withdrew the submission.
In my opinion, the magistrate was wrong to regard the submission as amounting to the giving of evidence from the bar table. Counsel had correctly framed the submission in terms of the inference that could be drawn from the evidence. However, to the extent that the submission implied that it was reasonably open to conclude that the appellant's DNA could have come onto the pickaxe handle at some other location or at some other time during the period mentioned, his Honour was correct to say, as he did, that there was no evidence to that effect.
Defence counsel's submission about the DNA evidence was not developed further after the exchange to which I have referred. She went on to submit that his Honour could not be satisfied that the place from which the safe was taken was ordinarily used for human habitation, as the complainant's evidence was that it was used as a hairdressing salon.
In summary, defence counsel submitted that the magistrate could not be satisfied beyond reasonable doubt of all the elements of the offence, and in particular that that the appellant was in or at the premises.

The magistrate's decision

The learned magistrate was satisfied beyond reasonable doubt, on the basis of Mr Thompson's evidence, that a burglary was committed on his home on 16 October 2014, and that a safe was stolen from within the house.[2]
[2] The magistrate referred to the fact that the appellant was also charged with stealing a wallet, a mobile telephone and cash. He did not make specific findings in respect of those matters, but it would appear he convicted the appellant of the stealing offence, as he was subsequently sentenced for both the home burglary and stealing offences by Magistrate De Maio on 16 August 2016. I note that the trial magistrate is recorded in the transcript of his reasons as saying that the complainant gave evidence that a mobile telephone and cash were missing, although his Honour considered that that was never the main issue. Given the context, it may be that there is an error in transcription, or that his Honour meant to say that the complainant did not give that evidence. The transcript reveals that the complainant referred to the theft of his wallet, but not to the theft of his mobile telephone and cash. It was not an issue that was referred to on the appeal. There is no need for me to consider it further.
His Honour was satisfied on the evidence that no one was given permission to take the safe from the house. Although his Honour did not specifically advert to it, it is implicit in his findings that he was satisfied that the person or persons who took the safe from within the house did not have consent to be in the house.
His Honour was satisfied by the evidence of Mr Thompson and the photographs that the safe was found outside in the patio area and that there was a pickaxe belonging to the complainant on the safe. He noted that there was no dispute about ownership of the pickaxe. He was also satisfied by Mr Thompson's evidence and the photographs that attempts had been made to smash open the safe.
His Honour found that the appellant's DNA was on the handle of the pickaxe. As he noted, that fact was not in dispute. He then said:
Counsel suggested that perhaps Mr Donnelly came into contact with that pickaxe somewhere else. She can't give evidence from the bar table.[3]
[3] ts 76.
His Honour's characterisation of defence counsel's submission was not strictly correct. Counsel's submission was about when the DNA may have come onto the pickaxe handle, rather than where. However, nothing turns on that characterisation. As I have already noted, his Honour was incorrect to regard counsel's submission as amounting to giving evidence from the bar table. However, the real point of his remark was that there was no evidence to support the proposition put by counsel.
His Honour then referred to the fact that the appellant had elected not give evidence. He considered that this gave rise to the application of the principles in Weissensteiner v The Queen.[4] His Honour noted that, in Weissensteiner, the trial judge had directed the jury that an inference adverse to an accused might more safely be drawn on the proved facts when an accused has elected not to give evidence of relevant facts which must have been within his knowledge. His Honour quoted the following passage from the judgment of Mason CJ, Deane J and Dawson J in Weissensteiner:[5]
But when an accused elects to remain silent at a trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence that has been given, that the jury may take it into account only for the purpose of evaluating that evidence.
[4] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217.
[5] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 229. The learned magistrate did not quote the passage in its entirety, omitting the second and third sentences, which set out corollaries of the principle in the first sentence. See ts 77. It may be assumed the magistrate was cognisant of those matters, both as part of the passage and as fundamental principles.
His Honour also quoted the following passage from the judgment of Brennan and Toohey JJ:[6]
It follows that, in Queensland and in other jurisdictions where there is no statutory prohibition against judicial comment, a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn.
[6] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 236.

His Honour concluded:[7]
So to rephrase it, that case seems to me to be saying where the undisputed evidence puts an accused in the frame, if you like, and he can explain to the court how that evidence got that (sic), that is consistent with his innocence, then the inference may not be drawn. But where an accused remains silent, it says here that a:
jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn.
And in this case, that's exactly what has happened. His silence allows me to come to the conclusion that he was guilty of this offence. He could have got in there and told us how his DNA got on that axe, and it's not appropriate to come to the conclusion that it could have come into the ‑ his DNA could have gone onto the axe under any other circumstance. As Ms Gilder said, it could have got on there any time over a period of two years. He didn't give that evidence. He didn't tell us how the DNA got there, so I'm entitled to draw an adverse conclusion and find the charge proven.
[7] ts 78.

The appeal

As I noted earlier, the appellant seeks leave to appeal against his conviction on two grounds, which are set out below. In essence he submits that, on the evidence at trial, it was not open for the magistrate to be satisfied beyond reasonable doubt that he was guilty of the offences charged. Secondly he submits the magistrate erred in his application of the principles in Weissensteiner to the circumstances of this case.

The legislative framework

Section 8 of the Criminal Appeals Act 2004 (WA) provides, relevantly:
(1)An appeal may be made under this Division on one or more of these grounds ‑
(a)that the court of summary jurisdiction ‑
(i) made an error of law or fact, or of both law and fact;
(ii) acted without or in excess of jurisdiction;
(iii) imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Section 9 provides:
(1)The leave of the Supreme Court is required for each ground of appeal in an appeal under this Division.
(2)After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3)Unless the Supreme Court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
Section 10 provides, relevantly:
…
(3)An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.
(4)If the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time in subsection (3) for an appeal against either the conviction or the sentence or both runs from the date of sentencing.

Application for extension of time

The appeal was commenced more than four months after the last day for appealing, which was 13 September 2016, being 28 days after the date on which he was sentenced.
The principles that apply on an application for an extension of time in which to appeal are well settled.[8] Where there has been lengthy delay in the bringing of an appeal, the court requires exceptional circumstances to be shown before it will grant an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. A compelling explanation for the delay would generally constitute exceptional circumstances, but the category of 'exceptional circumstances' is not closed.[9] However, cogent and substantial reasons, or the presence of some special or unusual feature of the particular case, would ordinarily be required before an extension of time would be granted where there has been lengthy delay.[10] Where it is submitted that a miscarriage of justice will result if an extension is not granted, the applicant will need to establish more than that his or her proposed grounds of appeal are reasonably arguable.[11] While it is not possible to define, with precision or exhaustively, the circumstances in which a 'miscarriage of justice' will occur if an extension of time is not granted, that condition may be met if the conviction is attended by such doubt as to make it probable that, if it proceeds, the appeal will be allowed, the conviction will be quashed and a verdict of acquittal will be entered. That is the outcome that would result if ground 1 were made out in this case.
[8] Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); Grover v Scott [2010] WASCA 164 [16] ‑ [17] (Jenkins J, McLure P & Buss JA agreeing); Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA); Wimbridge v The State of Western Australia [2009] WASCA 196 [20] - [26] (Wheeler JA, Miller JA agreeing); [42] ‑ [49] (Buss JA, as he then was).
[9] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA, Miller JA agreeing); [48] (Buss JA).
[10] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA, Miller JA agreeing); [46] & [48] (Buss JA).
[11] Wimbridge v The State of Western Australia [2009] WASCA 196 [21] - [22] (Wheeler JA, Miller JA agreeing); [49] (Buss JA).
The appellant had some eight months (since 10 December 2015) before the date of his sentencing in which he could have sought advice and made a decision about appealing the conviction. In my opinion, a delay of more than four months after the last day for appealing, in those circumstances, constitutes a lengthy delay, particularly given the nature of the prosecution and the history of the proceedings. Therefore, I am satisfied that I should apply the principles to which I have referred.
An affidavit, affirmed by the appellant's counsel on the appeal, was filed in support of the application for an extension of time. However, counsel did not seek to rely on the matters set out in the affidavit to submit that there were exceptional circumstances that would justify an extension of time. She submitted that I should consider the question of an extension of time in terms of whether the appeal has merit. The submission was appropriate. It is sufficient to say that I would not have been satisfied that there were cogent and substantial reasons amounting to exceptional circumstances for the grant of an extension of time. However, it is necessary to consider the merits of the grounds of appeal to determine whether there will be a miscarriage of justice if an extension of time is not granted.

The grounds of appeal

The appellant appeals his conviction on two grounds, which read:
1.The verdict of guilty was unreasonable and unsupported by the evidence.
2.The learned Magistrate erred in law in drawing an adverse conclusion from the appellant's silence in circumstances where it had not been established that the presence of a DNA profile matching his on the pickaxe must arise from circumstances within his knowledge and where the evidence did not support an inference that the accused committed the offence charged such that an explanation from him was necessary.
As the respondent correctly submitted, the first ground does not, in its terms, reflect any of the grounds on which an appeal may be brought, as provided by s 8 of the Act. However, if 'the findings or verdicts of the tribunal of fact raise a real doubt as to whether a conviction is safe or just', then there will have been a miscarriage of justice,[12] which is a ground provided for in s 8. Obviously, such a doubt would be raised if it was not open for the magistrate to be satisfied beyond reasonable doubt of the appellant's guilt on the available evidence at trial.
[12] The State of Western Australia v Olive [2011] WASCA 25 [40] (Buss JA, McLure P & Mazza J agreeing), referring to Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

Legal principles

Where an appeal from a conviction in the Magistrates Court relies on the ground that there has been a miscarriage of justice because there is a real doubt as to whether the conviction is safe or just, having regard to the evidence at trial, the same principles apply by analogy as apply on an appeal from a conviction in a superior court on the ground that the verdict is unreasonable or cannot be supported by the evidence (pursuant to s 30(3)(a) of the Criminal Appeals Act).[13] The principles governing such a ground of appeal were summarised in Wells v The State of Western Australia[14] as follows (substituting 'fact finder' for 'jury'):[15]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the [fact finder] to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the [fact finder] must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the [fact finder] was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the [fact finder] had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a [fact finder] ought also to have experienced, unless the [fact finder's] advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the [fact finder], there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a [fact finder's] verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the [fact finder] over a Court of Appeal which has not seen or heard the witnesses called at trial.
[13] The State of Western Australia v Olive[2011] WASCA 27 [38] - [44].
[14] Wells v The State of Western Australia [2017] WASCA 27.
[15] Wells v The State of Western Australia [2017] WASCA 27 [13].
In the circumstances of this case, the provisos concerning the fact finder's advantage in seeing and hearing witnesses are not relevant. There was no challenge to the credibility or reliability of witnesses. The issue turns on the inferences that can be drawn from the evidence.
The Court of Appeal in Wells v The State of Western Australia also summarised the principles relating to criminal cases that turn upon circumstantial evidence, which were recently restated by the High Court in R v Baden‑Clay, as follows:[16]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[16] Wells v The State of Western Australia [2017] WASCA 27 [14]; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].
Those principles apply in this case.

The merits of the grounds of appeal

Ground 1

The appellant's argument in support of ground 1 relies on two propositions. First, the prosecution failed to prove beyond reasonable doubt that whoever entered Mr Thompson's house and took his safe was in the place without consent. Secondly, that the presence of the appellant's DNA on the pickaxe handle did not establish beyond reasonable doubt that the appellant came into contact with the pickaxe at the time of the burglary and was, therefore, involved in the burglary.
Both propositions may be affected by the outcome in relation to ground 2. However, for reasons which will become apparent, I will consider ground 1 first without regard to the magistrate's reliance on the fact that the appellant did not give evidence.

Proof of absence of consent

The first proposition in relation to ground 1 can be dealt with shortly. The appellant's counsel conceded it was not her strongest point.
The appellant's argument in support of that proposition is as follows. Mr Thompson had two tenants living at the premises. Neither of them was called to give evidence. There was no evidence of forced entry. In those circumstances it was not possible to exclude the hypothesis that whoever entered the premises and took the safe had consent to be in the premises. Therefore the prosecution had failed to prove beyond reasonable doubt an element of the burglary offence, namely absence of consent to being in the premises.
This argument was not made at the trial.[17] It fails for a number of reasons.
[17] As I outlined above, defence counsel at trial relied on a different argument, namely that the prosecution had not proved that the relevant part of the place in which the offence was alleged to have occurred was a dwelling. That argument was not pursued on the appeal.
First, it was not necessary for the prosecution to prove there had been a forced entry. It was sufficient to prove that the person or persons who were in the house for the purpose of stealing the safe and Mr Thompson's wallet were in there without consent. Mr Thompson's evidence supported the conclusion that he did not give consent to anyone to be in his office or his bedroom. He did not know who had committed the burglary.
Secondly, it does not follow from the fact that someone was a tenant at the premises that they had authority to give someone else consent to be in the premises. Mr Thompson was not asked about that in cross‑examination.
Thirdly, and more specifically, Mr Thompson's evidence was that the office was kept locked and the tenants did not have a key for that door. The only reasonable conclusion from his evidence was that the tenants did not have access to that room, let alone authority to give someone else consent to be in that part of the house. Similarly, there was no evidence from which it might be reasonably concluded that the tenants had permission to enter Mr Thompson's bedroom or to consent to anyone else entering that room.
Fourthly, Mr Thompson's evidence was that the person who woke him and drew his attention to the fact that there was a noise outside was one of his tenants. His conduct was not consistent with having given the thief of the safe consent to be in the house. The other tenant could not be located when Mr Thompson went to look for him. The door to his room was locked and there was no response.
Finally, it was reasonable to conclude that the ransacking described by Mr Thompson had been done by the thief or thieves. The fact that entry was gained to the house in the early hours of the morning, without Mr Thompson's knowledge, and involved ransacking and theft of property from areas of the house to which only Mr Thompson had lawful access, was compelling evidence that the thief or thieves did not have consent to be there.
At the time of the trial, the two tenants were no longer living at the house, which was on the market to be sold.
There was no evidence for the hypothesis that the thief or thieves may have had consent to be in the house, or at least in those parts of the house from which the safe and wallet were stolen. In all the circumstances, the hypothesis is neither rational nor reasonable. Of course, as the respondent rightly submitted, if the evidence established that the appellant was the person, or one of the persons, who took the safe from the house, or was involved otherwise as a party to the taking, this was a classic case for the application of the principles discussed in Weissensteiner, as he would be peculiarly placed to say whether he had consent to be in the house.

Proof that the appellant was involved in the burglary

The appellant's argument in respect of the second proposition in support of ground 1 initially included the submission that, because the DNA located on the pickaxe handle was a mixture consistent with having come from three individuals, and as there was no evidence as to the identity of the other two contributors, it was not possible to exclude the possibility that one of those contributors was the offender. With respect, that submission was misconceived. First, it assumed that there was only one offender, when the prosecution case and the factual circumstances were not confined in that way. Secondly, it ignored Mr Thompson's evidence that both he and his girlfriend had handled the pickaxe as late as 2013. The submission did not have regard to the whole of the evidence, including the evidence that the appellant's DNA profile accounted for 90% of the DNA mixture found on the pickaxe handle. The appellant's counsel did not persist with the submission on the appeal, and indeed made important concessions, as appear below.
In order to prove the appellant was guilty of the burglary, it was sufficient for the prosecution to prove beyond reasonable doubt that he was a party to the burglary. The case was put by the prosecution at first instance on the basis that he was the offender or one of the offenders. It was not necessary for the prosecution to prove that the appellant entered the premises; it was sufficient for it to prove beyond reasonable doubt that he was at the premises and involved in the offence, at least as an aider. If he was involved in the attempt to open the safe, then, in my opinion, the inference that he was involved in the burglary was irresistible. So much was conceded, in effect, by the appellant at the hearing.
The appellant's counsel conceded that, if the evidence established that the appellant had direct contact with (i.e. handled) the pickaxe, then the evidence would have been sufficient to support the finding that 'the appellant was the person who went into the address on the day, and took the safe outside'. The concession goes further than the irresistible inference to which I have referred, but the point is that the case turned on whether the presence of the appellant's DNA on the pickaxe handle was sufficient to establish that he had come into direct contact with the tool. As that was an essential step in the proof of the appellant's guilt, it had to be proved beyond reasonable doubt. However, if established, then, as his counsel conceded, the only way such direct contact could have occurred was at the address where the pickaxe was kept by Mr Thompson, being the premises where the burglary took place, and there was no basis for the hypothesis that he may have been at the premises at an earlier time.
The appellant's submission is that the evidence did not establish beyond reasonable doubt that the appellant's DNA came onto the pickaxe handle by direct contact. In the appellant's written submissions, reliance was placed on the absence of evidence at the trial as to both the length of time the DNA might have been on the pickaxe and the mechanism by which it might have come to be on the pickaxe. However, in light of the concession made by counsel at the hearing, the issue has been confined to the mechanism by which the DNA came to be on the pickaxe handle.

It is the fact that the witness called as a DNA expert, Ms King, was not asked questions, either in examination-in-chief or in cross‑examination, about the manner in which a person's DNA might come to be on an item, the factors that may affect the likelihood of DNA being deposited on an item, the factors that may affect how long DNA will remain on an item, and so on. It was, with respect, a shortcoming in the manner the evidence was adduced in chief that such matters were not addressed. However, Ms King gave evidence that DNA is found in virtually every cell of the body except red blood cells. Albeit only as an example, she referred specifically to skin cells. She also explained how a reference buccal swab is taken, namely by the scraping of the inside lining of a person's cheek with a cotton swab.[18] It was obvious from that explanation, if confirmation were required, that one way in which DNA may be transferred from an individual onto an item is by direct contact and the application of friction. Therefore, while Ms King was not asked directly, there was evidence from which an inference could be drawn that a person's DNA can be deposited on an item by the transfer of skin cells as a result of direct contact.
[18] ts 9.
It may be, as the respondent submitted, that the idea of physical contact as an explanation is something that is 'so obvious that it really goes without saying'. Indeed, the defence case at first instance appears to have assumed that the DNA was deposited by direct contact, but relied on the argument that a temporal connection could not be established with the commission of the offence. However, on the appeal, the appellant's response is that if one is to rely on what is supposedly an obvious explanation, in the absence of specific evidence about it, where does one draw the line? Would it not also go without saying that secondary transfer is a possible explanation? Secondary transfer of DNA is a topic that has been the subject of appellate consideration, most notably and relevantly for present purposes in Fitzgerald v The Queen.[19] It does not follow, however, that it is an obvious possible explanation. As the reasons in Fitzgerald v The Queen reveal, the expert evidence that may be given about secondary transfer can involve a degree of complexity that is not intuitive.
[19] Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158.
In any event, it is not necessary, for the purposes of this appeal, to consider further whether one can rely on common sense to conclude that DNA can be transferred onto an item by direct contact. As I have indicated above, there was evidence from which the inference could be drawn.
The appellant submitted, relying on Fitzgerald v The Queen, that the recovery of the appellant's DNA from the pickaxe did not raise any inference about the time when or circumstances in which the DNA was deposited there.[20] However, that proposition in Fitzgerald v The Queen depended on the circumstances of that case, which can be distinguished from the facts of this case.

Fitzgerald v The Queen

[20] Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158 [36].

In Fitzgerald v The Queen, the appellant was convicted of murder on the basis that he was a member of a group that forced entry into a house where the victim was an occupant and assaulted the victim, causing his death. The prosecution case was that each member of the group, which included a man named Sumner, was a party to a common plan to cause grievous bodily harm to persons inside the house. The real issue in the appellant's trial was the sufficiency of the evidence to establish that the appellant was one of the group. The prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish that fact. The offence occurred shortly before 6.00 am on 19 June 2011. Sumner had visited the house on two occasions that morning. One of the occasions was approximately two hours before the attack. He was involved in several physical altercations at the house. At one stage he sat on a freezer next to which the didgeridoo was located. He gave unchallenged evidence that before his first visit to the house, he had occasion to shake hands twice with the appellant, including at 10.30 pm the previous night.[21]
[21] Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158 [3], [8].
After the attack that resulted in the death of the deceased, the didgeridoo was found in the lounge room in close proximity to where the deceased was left. There was no direct evidence of how it came to be there or that it was used in the attack.[22]
[22] Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158 [17].
The DNA expert called by the prosecution gave evidence about 'primary' and 'secondary' transfer. She said secondary transfer occurs when contact or trace DNA is transferred onto an object by an intermediary as a result, for example, of a handshake. She said that the most likely way to obtain contact or trace DNA on an object was through primary, rather than secondary, transfer, but secondary transfer was possible in that case. She said that secondary transfer remains possible a few hours after contact between a person and an intermediary, and that an intermediary's DNA is not necessarily transferred at the same time, although she was only aware of one example of that in the relevant literature.[23]
[23] Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158 [22].
It was in the context of the evidence in that case, which I have outlined, that the High Court decided in Fitzgerald v The Queen that the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. The Court was of the view that, on the evidence, there were at least two distinct occasions on which a secondary transfer of the appellant's DNA to the didgeridoo may have occurred. There were alternative hypotheses consistent with innocence that were not unreasonable, in particular that Sumner had transferred the appellant's DNA to the didgeridoo on his first visit to the house. The prosecution had not successfully excluded such hypotheses, and the evidence was not capable of supporting the appellant's conviction.[24]
[24] Fitzgerald v The Queen[2014] HCA 28; (2014) 311 ALR 158 [36].
It is noteworthy that part of the context of the High Court's decision was the absence of any evidence that the didgeridoo was used in the attack on the deceased.

The circumstances of this case

In the present case, apart from the lack of expert evidence that might support the possibility of secondary transfer, there was no evidence at all to support a hypothesis that the appellant's DNA might have been transferred onto the pickaxe handle by an intermediary. There was no evidence that the appellant had any connection with Mr Thompson's residence or any of its occupants, or with anyone who may have had a connection with the residence or any of the occupants. There was no evidence that, on the day of the offence or soon before it (bearing in mind it occurred in the early hours of the morning) the appellant shook someone's hand or by some other means transferred his DNA to such another person who was then involved in the burglary.
In short, there was no evidence of any means, other than by primary transfer (i.e. by direct contact), which would explain the appellant's DNA being found on the pickaxe.
Further, unlike the circumstances of Fitzgerald v The Queen, the evidence in this case was capable of establishing that the pickaxe was used in the commission of the offence, in that it was used in an attempt to open the safe. That inference was open beyond reasonable doubt from the evidence of the damage to the safe and the fact the pickaxe was found lying on top of the safe. The appellant does not dispute that proposition.
The use of the pickaxe in an attempt to open the safe provided an explanation for the presence of DNA on the handle. In the normal course of events one would have expected the user to grip the handle with his or her hands in a manner involving friction, a known means for the transfer of DNA, by inference from the evidence.
The only other explanations for DNA on the handle, based on Mr Thompson's evidence, were the use of the pickaxe by Mr Thompson's girlfriend in 2013 and Mr Thompson's subsequent handling of the pickaxe in taking it to the garage for storage. Any other explanation involved conjecture.
Finally, unlike the circumstances of Fitzgerald v The Queen, the pickaxe was not, at a time proximate to the commission of the offence, in an area where a number of people could have come into contact with it, whether deliberately or inadvertently. Mr Thompson's evidence was that he had put the pickaxe in the garage sometime in 2013. There was no evidence that the pickaxe had been removed from the garage in the period between Mr Thompson placing it there and the pickaxe being taken on the morning of the offence to be used on the safe.
The appellant's argument did not postulate alternative reasonable hypotheses for the appellant's DNA being on the pickaxe handle. In essence his argument was to the effect that the burden of proof rested on the prosecution and, on the evidence presented, it had failed to prove beyond reasonable doubt that the appellant's DNA, which accounted for 90% of the DNA on the pickaxe handle, came onto the handle by direct contact. However, that argument tended to view the DNA evidence in isolation. The premise appeared to be that, if the only evidence implicating an accused in the commission of an offence is the presence of the accused's DNA on an item associated with the offence, that evidence could never be sufficient to establish guilt beyond reasonable doubt. I was not referred to any authority that would support such a broad proposition.
For the reasons I have given, considering the evidence as a whole, it was an inference reasonably open in this case that the appellant's DNA came onto the handle of the pickaxe as a result of him using the pickaxe in an attempt to open the safe. In the absence of any other reasonable inference, it was open to the magistrate to find that fact proved beyond reasonable doubt. As I noted in outlining the principles, in this context a reasonable inference must rest on something more than mere conjecture. In my respectful opinion, the appellant's submissions raise nothing more than a bare possibility of innocence, based on conjecture.
In my opinion, it was open to the magistrate, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged, either as a principal offender or as an aider. I am satisfied it was the only inference open to reasonable people on a consideration of all the facts.[25] It follows that I am not persuaded the magistrate must have entertained a reasonable doubt about the appellant's guilt. The appellant has not established that the conviction constitutes a miscarriage of justice on the basis that it is unsafe or unjust, having regard to the evidence.
[25] Wells v The State of Western Australia [2017] WASCA 27 [14]; Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417 [32].
I noted earlier that the appellant's propositions in respect of ground 1 may be affected by the outcome in relation to ground 2. In my opinion, the verdict was supported by the evidence without the need for the magistrate to rely on the appellant's failure to explain how his DNA got onto the pickaxe handle. If the magistrate was entitled to rely on that failure to more readily draw the inference adverse to the appellant from the DNA evidence, it would only reinforce the conclusion at which I have arrived in respect of ground 1. If the magistrate was wrong in relying on the absence of an explanation from the appellant, the question would remain, in the context of considering whether an extension of time should be granted, whether the error has resulted in a miscarriage of justice. Because of my conclusions in respect of ground 1, I am of the opinion that there has not been a miscarriage of justice. However, for the reasons that follow, I am not persuaded that his Honour erred in law as alleged in ground 2.

Ground 2

By this ground the appellant alleges that the magistrate made an error of law in drawing an adverse inference from the appellant's silence, relying on Weissensteiner v The Queen. The ground asserts that the magistrate erred because:
1.it had not been established that the presence of a DNA profile matching the appellant's on the pickaxe must arise from circumstances within his knowledge; and
2.the evidence did not support an inference that the appellant committed the offence charged, such that an explanation from him was necessary.
Insofar as the second proposition asserts that the evidence did not support an inference that the appellant committed the offence, it has no merit, having regard to my reasons in respect of ground 1.
However, the appellant submits that the magistrate's approach was wrong in three respects. It is convenient to deal with the second and third points first, as they concern the character of the magistrate's approach and a general proposition concerning DNA evidence.
The appellant submits that, even if this was a case in which the approach approved in Weissensteiner was appropriate, the magistrate in effect relied on the appellant's election not to give evidence as a basis for concluding that the appellant was guilty, rather than confining himself to an assessment of the prosecution case. In other words, he engaged in the type of impermissible reasoning discussed in Azzopardi v The Queen.[26] In my opinion, the submission is without merit.
[26] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [34] (Gaudron, Gummow, Kirby & Hayne JJ).
The magistrate's reasons are set out at [38] above. While it may be accepted that, in isolation, some of his Honour's remarks could be regarded as suggesting he was reasoning from the appellant's silence alone that he was guilty, that is not a fair or reasonable conclusion when the remarks are considered in context, as is necessary.
His Honour had referred to the passage from Weissensteiner in which Mason CJ, Deane J and Dawson J had stated the general principles, including that an accused's election to remain silent at trial cannot amount to an implied admission or be treated as evidence of guilt.[27] Secondly, his Honour identified specifically the matter about which the appellant had not given evidence that was relevant to his consideration, namely how his DNA had got onto the axe. Thirdly, he expressed the conclusion that followed from the appellant's silence as being that it was not appropriate to conclude that the DNA could have got onto the axe 'under any other circumstances'. In then stating that he was therefore 'entitled to draw an adverse conclusion and find the charge proven', his Honour was doing no more, in my opinion, than summarising the process of reasoning that followed from the application of the approach approved in Weissensteiner. The adverse conclusion he was drawing was that the DNA was deposited on the axe by the appellant at the time of the burglary, and his connection to the axe at that time led to the conclusion that the accused was guilty of the burglary and the stealing.
[27] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 229. See [38] above.
As Kennedy J noted in Pickett v Fuderer:[28]
The line between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely because the appellant has not supported any hypothesis which is consistent with innocence from facts within his knowledge is unquestionably fine …
[28] Pickett v Fuderer (1998) (Unreported, WASC, Library No 980475, 27 August 1998) 4 (Kennedy J).
However, in my opinion, the effect of the magistrate's reasons was that, in the absence of any explanation from the appellant as to how his DNA came to be on the pickaxe, he could more readily conclude that the only rational explanation was that the appellant was guilty of the burglary.
The next proposition on which the appellant relies is that it is only in 'rare and exceptional' cases that it would be appropriate for a judge to make a comment to a jury about 'the failure of an accused to disclose additional facts which could be known only to the accused in answer to a prosecution case'.[29] Of course, where there is no jury, it is adoption by the tribunal of fact of the process of reasoning the subject of the comment that would be rare and exceptional. The appellant submits that the presence of an accused person's DNA at an alleged crime scene is neither rare, nor exceptional, and so it is not a circumstance in which an accused's failure to give evidence is relevant to the assessment of whether the prosecution had proved its case beyond reasonable doubt. No empirical basis was provided for the assertion, but it is misconceived in any event. The statement in Azzopardi that the cases in which a comment may be made by the judge will be 'rare and exceptional'[30] served to emphasise the need for there to be additional facts peculiarly within the knowledge of the accused (if they exist at all) which may provide an innocent explanation for otherwise incriminating evidence. As with fingerprint evidence, it is not the frequency with which DNA evidence may be found at a scene that is of significance in determining the appropriateness of taking the approach in Weissensteiner, but the circumstances in which such evidence is found.
[29] Norton v The State of Western Australia [2010] WASCA 115 [27] (Pullin JA, referring to Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [68] and Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217).
[30] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [68].
The respondent referred to a number of authorities concerning the application of the reasoning in Weissensteiner in the context of a circumstantial case. Each case involved fingerprint evidence.[31] Obviously, every case will turn on its own facts. In most cases where the accused is connected to a crime scene only by forensic evidence, such as fingerprints or DNA evidence, the circumstances in which that evidence is found will affect the inference that can be drawn as to the accused's involvement in the alleged offence. Pickett v Fuderer[32] is instructive because it illustrates that even when at the end of the prosecution case two inferences are equally open, one consistent with guilt and the other consistent with innocence, and neither is more probable than the other, the failure of the alleged offender to advance an explanation of the circumstances consistent with his innocence may mean that the hypothesis consistent with innocence ceases to be reasonable or rational, and the inference consistent with guilt becomes compelling.
[31] Pickett v Fuderer (1998) (Unreported, WASC, Library No 980475, 27 August 1998); CMH (a child) v Bower [2009] WASC 347 [24] - [33]; Knuckey v The Queen [2004] WASCA 199 [20].
[32] Pickett v Fuderer (1998) (Unreported, WASC, Library No 980475, 27 August 1998) 4 - 5, 10 (Ipp J, Kennedy J agreeing generally and Steytler J agreeing).
The appellant submitted that cases involving fingerprint evidence can be distinguished on the basis that 'there is a significant distinction between fingerprint evidence and DNA evidence', in that the only means by which a person's fingerprint can be left on an object is by touching the object, whereas 'DNA can be deposited on a surface by a number of mechanisms'. As I have already noted, there was no evidence in this case that there are 'a number of mechanisms' by which DNA can be deposited on an object. However, accepting the distinction can be drawn, it does not mean that the principles that emerge from cases involving fingerprints have no application where DNA is involved. Consistently, the overarching principle is the need to consider the forensic evidence in the context of the whole of the evidence. That assessment will determine whether the application of the reasoning in Weissensteiner is appropriate in any particular case.

Finally, the appellant points to the fact that the authorities confine the circumstances in which a court may more readily draw an adverse inference in the absence of an explanation from the accused to those in which evidence in support of a hypothesis consistent with innocence must be within the knowledge of the accused. The submission relies on the following passage from the reasons of Mason CJ, Deane J and Dawson J in Weissensteiner, which was approved in R v Baden‑Clay:[33]
[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
[33] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 227; R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308, 325 [50].
The appellant submits that, in the absence of evidence as to the time at which DNA was deposited on an item, and the means by which DNA was deposited on an item, the presence of a person's DNA on an item is not something a person will invariably be in a position to explain. However, in light of the concessions made on his behalf at the hearing (referred to above), it seems to me that the submission is reduced to the proposition that, if the appellant's DNA came onto the item by some means other than direct contact with the pickaxe, then it could not be assumed that he would necessarily have knowledge of that fact. The difficulty with the proposition, framed in those terms, is that the magistrate's reliance on Weissensteiner was in a context in which the argument put on behalf of the appellant at trial was, not that there may have been an explanation other than direct contact for the DNA on the pickaxe handle, but that, taking the prosecution case at its highest, the evidence established that the appellant came into contact with the pickaxe at some point between 2013 and 16 October 2014; that did not place him in the house or at the address.[34]
[34] ts 73 - 74.
As the appellant's counsel conceded on the appeal, if the accused's DNA came onto the pickaxe by direct contact in any other circumstance, then 'it could be expected that he would be in a position to provide an explanation' for such contact. In other words, having regard to the evidence about the use and storage of the pickaxe, any innocent explanation for the appellant coming into contact with it would necessarily have been within his knowledge. Further, as the respondent submitted, at the very least, the appellant would have been aware of any innocent connection he had with the house or its occupants.
In my opinion, having regard to the manner in which the case was contested at trial, the magistrate relied on the appellant's silence on the relevant issue as a basis for rejecting the proposition that the appellant may have come into contact with the pickaxe in circumstances other than those associated with the burglary. He decided that, in the absence of an explanation from the appellant, he could more readily conclude that the only rational explanation was that the appellant was guilty of the burglary. In my opinion, it was open to his Honour to take that approach. I am not persuaded that his Honour made an error of law.
I accept that if there was any reasonable basis to hypothesise that the appellant's DNA came onto the pickaxe handle by secondary transfer, the foundation for the assumption that the appellant must have knowledge of any circumstances that would support such a hypothesis would be less secure. However, to draw any conclusion about that would be speculative, given that it was not a hypothesis relied upon at trial, there being no evidence about secondary transfer.
Even if the magistrate was wrong to rely on Weissesnsteiner, no miscarriage of justice has resulted, for the reasons I have given in respect of ground 1.

Conclusion

The appellant has not established that there would be a miscarriage of justice if an extension of time in which to appeal is not granted.
Accordingly, the application for an extension of time is refused and the appeal is taken to be dismissed.