Farrugia v The King
[2023] VSCA 248
•19 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0108 |
| KEVIN FARRUGIA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, MACAULAY and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 October 2023 |
| DATE OF JUDGMENT: | 19 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 248 |
| JUDGMENT APPEALED FROM: | DPP v Farrugia (Unreported, County Court of Victoria, 25 May 2023, Judge Marich) |
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CRIMINAL LAW – Appeal – Conviction – Prohibited person in possession of a firearm – Whether verdict of the jury unreasonable or incapable of being supported by the evidence – Whether DNA evidence capable of establishing applicant’s possession of firearm – Whether expert evidence of theoretical possibility of indirect transfer of applicant’s DNA to firearm equated to a reasonable hypothesis consistent with innocence – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Indictment alleged offence ‘on or about’ a particular date – Whether date of offence material particular – Whether jury wrongly directed that they could convict on the basis that firearm possessed at some time remote from date alleged in indictment – Leave to appeal refused.
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| Counsel | ||
| Applicant | Ms J Condon KC with Mr J Murphy | |
| Respondent | Ms D Piekusis KC with Ms S Clancy | |
| Solicitors | ||
| Applicant | Sarah Tricarico Lawyers | |
| Respondent | Ms A Hogan, Solicitor for Public Prosecutions | |
PRIEST JA
MACAULAY JA
TAYLOR JA:
Introduction
At about 2.40 pm on 1 June 2018, police attached to the Armed Crime Squad executed a search warrant at the home of the applicant’s brother, Shaun Farrugia, at 5 Byron Place, Taylors Hill. The applicant, then aged 45 years[1] — a ‘prohibited person’ within the meaning of the Firearms Act 1996[2] — was at the premises when the warrant was executed.
[1]The applicant’s date of birth is 13 December 1972. He is now aged 50.
[2]See Firearms Act 1996, s 3(1).
In the boot of a blue Ford Falcon sedan parked in the garage of the premises, police found a black bag containing a Ruger .22 semi-automatic rifle (‘the Ruger’ or ‘the firearm’). Also located within the black bag was another bag containing a magazine loaded with live ammunition; an ammunition container holding 19 subsonic .22 calibre hollow-point rounds; and a black bipod rifle attachment.
The Ruger was subsequently subjected to DNA analysis which revealed DNA profiles on three different locations: the foregrip; the trigger and trigger guard; and the rear grip. Each DNA profile had multiple contributors: the foregrip had two contributors; the trigger and trigger guard had four contributors, and the rear grip (at times referred to as the ‘handle’) had three contributors. Significantly, the DNA analysis showed that each DNA profile on the firearm was 100 billion times more likely if the applicant was a contributor, than if he was not.
Other items were also subjected to DNA analysis. The outside of the magazine rendered a DNA profile with four contributors; analysis of the ammunition container showed a DNA profile with two contributors; and analysis of the bipod rifle attachment showed a DNA profile with two contributors. Each of those profiles was 100 billion times more likely if the applicant was a contributor, than if he was not.
In light of the foregoing, an indictment filed in the County Court charged the applicant with being a prohibited person in possession of a firearm.[3] Following a five day trial, the jury empanelled to try the applicant found him guilty on 31 March 2023. Subsequently, the trial judge sentenced the applicant to three years and three months’ imprisonment, with a non-parole period of two years.
[3]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.
The applicant now seeks leave to appeal against his conviction on two grounds, formulated as follows:
1.The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
Particulars
(i) In particular, without limitation, the evidence was incapable of satisfying the jury beyond reasonable doubt that:
(a) the Applicant intentionally possessed (in the sense of having and exercising access to) the firearm; and
(b) that intentional possession occurred on or about 1 June 2018 (that being the only time the subject of any evidence and the only time at which the jury could be satisfied that the Applicant was a prohibited person).
(ii) In particular, without limitation, the evidence was incapable of excluding the reasonable possibility that:
(a) The Applicant did not have or exercise access to the firearm at all, his DNA having been deposited there otherwise than by direct transfer; or
(b) The Applicant did not have or exercise access to the firearm on or about 1 June 2018 (that being the only time about which the jury had any evidence and at which the jury could be satisfied that the Applicant was a prohibited person), his DNA having been deposited there by direct or indirect transfer prior to the period on or about 1 June 2018.
2There was a substantial miscarriage of justice by reason of the trial judge’s responses to the jury questions.
Particulars
(i) In particular, without limitation, the trial judge erred in the directions to the jury concerning the date and place of the alleged offending insofar as her Honour’s directions tended to suggest to the jury that they could convict the Applicant on the basis that he had possessed the firearm at some time other than on or about 1 June 2018 and/or at some place other than Taylors Hill.
In our view, leave to appeal should be refused. Our reasons follow.
Relevant evidence
Before turning to a consideration of the grounds, it is necessary to summarise the more salient aspects of the evidence in the trial.
Acting Senior Sergeant Andrew Pybus gave evidence that on 1 June 2018 he was attached to the [Armed] Crime Squad. In the afternoon of that day he went to the premises in Byron Place, Taylors Hill, with other detectives to execute a search warrant. He conducted a search of a blue Ford Falcon situated in the garage. Inside the boot he located a black bag containing the Ruger firearm, the loaded magazine and the black ‘bum bag’ in which the container of ammunition and the firearm stock were located. Before handling the items he put on new gloves ‘for DNA precautions’. In evidence-in-chief, he stated unequivocally that he did not touch the trigger of the firearm — he was ‘100 per cent’ certain because he had been trained ‘never touch a trigger unless you’re going to shoot the firearm’ — but said that he would have touched the stock to open it. He could not remember whether he touched the rear grip.
Under cross-examination, Detective Pybus gave the following evidence:[4]
[4]Emphasis added.
[DEFENCE COUNSEL]: So in terms of the chronology, you find … the firearm in the bag, correct?---Correct.
Get some gloves?---Correct.
Put it on the bonnet of the silver car?---Correct.
It’s photographed?---Yes.
You pick up the firearm?---Yes.
Unfold the stock?---Correct.
And it’s photographed?---Correct.
All right. So at some stage, its then put into the brown paper bag, after all that’s done?---Correct.
Is that right? And you do that?---Correct.
All right. [Photograph number] 809?---Yes.
What’s that?---It’s the black bum bag, and the magazine that was found in the bag.
[Photograph number] 811 is – you’ve taken the magazine out of … the black bag?---Yes.
With those second pair of gloves that you’d gone to retrieve?---Um – I can’t recall if they’re the same gloves or I changed them by that stage.
Yes. This – you’ve got no recollection of changing – you’ve got a recollection of having one pair of gloves on when you there, correct? You’ve told us that?---Yeah, when I start searching.
You find … the firearm, you go and get another set of gloves - - -?---Correct.
- - - for that exhibit. Correct?---Correct.
And you’ve got no recollection of changing those gloves after that, do you?---Yep, yeah, I just can’t recall ‘cause I was in the same bag - - -
Yes?--- - - - whether or not I changed gloves for these items.
Yes, yes. You’ve never suggested that you have previously, in a statement or any evidence, have you?---Well, I think earlier that I said that at a new exhibit, I’d change gloves, but I can’t recall specifically for this one whether or not I did, ‘cause it was in the same bag.
You’ve got no recollection of ever changing … your gloves after you’d located the firearm?---Yeah, new – correct.
…
Having found the firearm while already wearing a pair of gloves, you say that you then discarded the pair of gloves that you were originally wearing and then put on a new pair. Is that right?---That’s correct.
It wasn’t a situation of putting a glove on top of a glove?---No.
A glove on top of the existing glove?---No.
It was a situation of putting new gloves on bare hands?---Correct.
What happened to the gloves that you say you were wearing when you first found the firearm?---I can’t recall whether or not I put them in the rubbish bag that was set up, um, in the hallway or whether or not I put them into a pocket of my pants.
Detective Sergeant Matthew Davey, the informant, gave evidence that on 1 June 2018 he was attached to the Armed Crime Squad. He attended the premises at 5 Byron Place, Taylors Hill. Three men were present — the applicant, Adrian Riordan and John Barbopoulos. Detective Davey said that he did not take part in the search, and had left the premises before the Ruger and other items were found. The next day he attended the ‘operations room’ with Detective Cara Brockwell to make the firearm ‘safe’ before it was lodged in the property office. Detective Sergeant Davey said that the Ruger was packaged in a brown paper bag. He wore clean gloves to remove it from the bag and make it safe. His evidence was that he ‘changed gloves multiple times throughout the interaction with the firearm’, at any time that he ‘touched an item and then moved onto the next one’.
Dr Jessica Chang, a senior forensic scientist with Victoria Police Forensic Services, gave evidence that DNA can be transferred from one surface to another when both surfaces come into contact. In general, there are two classes of DNA transfer. One is direct transfer, when a person directly touches the surface of an object. The other is indirect transfer, when a person comes into contact with an object upon which another person’s DNA has been deposited. Dr Chang said that not every contact will result in the detection of DNA, and that ‘the successful detection of DNA from a transfer … depends on a number of variables’.
Among the variables are, first, the type of biological material involved — whether it is a rich source of DNA such as blood, semen or saliva, or a poor source of DNA such as skin cells. The second variable is the type of surface involved, whether it is a porous or non-porous, or a smooth or rough, surface. A third variable is the manner of contact — whether it is a strong grip with force or whether it is a passive touch. Other variables include the time delay between contact and collection of the sample. If there has been a long time delay, the chances are that the DNA will be lost. If there is rapid collection of a sample right after transfer occurs, then the chances of detecting DNA are higher. Further, the ‘shedder status’ of a person is important, since some people have a tendency to shed more DNA compared to others. Finally, environmental factors play a role, since humidity, heat and sunlight may cause DNA to be destroyed or lost.
Dr Chang gave evidence of the results of DNA analysis set out above.[5] The DNA profiles obtained from the foregrip; the trigger and trigger guard; the rear grip; and the magazine were more likely if the applicant’s brother, Shaun Farrugia, was not a contributor. Shaun Farrugia was excluded as being a contributor to the DNA located on the ammunition box and firearm stock.
[5]At [3]–[4].
In cross-examination, Dr Chang gave the following evidence with respect to three ‘scenarios’ which might explain the presence of the applicant’s DNA on the firearm and associated items. As the extracted passage illustrates, the three scenarios were, first, direct transfer by the applicant; secondly, indirect transfer by his brother or another (such as one of the other individuals present at the time of the police search); or, thirdly, indirect transfer by police in the course handling the items:[6]
[6]Emphasis added.
[DEFENCE COUNSEL]: … [The applicant’s] DNA may be on the items because he had direct contact with the items, correct? That’s one explanation or scenario?---Yes.
Yes. The next explanation or scenario is that another person, potentially another occupant for example of the premises, may have handled the items who has had contact with Mr Farrugia and that is a scenario that explains how Mr Farrugia’s DNA has come to be on those items, correct?---So, the indirect transfer - - -
Yes?--- - - - explanation, yes … it’s possible.
And it’s also possible that despite the fact that [Shaun] Farrugia has been excluded or not likely a contributor, it doesn’t exclude the scenario that [Shaun] Farrugia may have handled those items but not have left a detectable amount of his DNA on those items, correct?---That is correct.
…
The last scenario that may explain a way in which [the applicant’s] DNA came to be present on the various items is the way in which the police have handled those items at various times during firstly, the seizure and then the photographing the following day, correct?---So, the DNA that’s located or detected on the item is a result of being transferred from other surfaces that he has come in contact with. Yes, it’s possible but to get the DNA profile that provide a likelihood ratio of the value that’s been obtained, it means that the starting DNA material has to be a lot for transfer, for that kind of transfer to occur so I’m saying yes, it’s possible but the starting DNA material will have to be a lot in order for those surfaces to transfer DNA onto each other.
…
Can I ask you this, Doctor, finally, that in regards to the different scenarios that I put to you that could possibly explain how [the applicant’s] DNA came to be on the items, that each scenario is equally open to the other to explain how [the applicant’s] DNA came to be present on each of those items, correct?---The true scenario that you said?
Yes, the different scenarios?---Yes.
In re-examination, Dr Chang gave the further following evidence concerning the three ‘scenarios’:[7]
[PROSECUTOR]: … So my question, Dr Chang, is I’d just like to give you an opportunity to explain that answer and explain whether in your view each of the three scenarios are equally likely or whether they are each possible and what you meant by that answer?---When I answer ‘yes’ what I mean is all the three scenarios are all possible but they are not equally probable.
So when you said yes that they are equally open were you meaning to answer that they are all open?---I don’t know what ‘open’ means but I mean they are all possible but they are not equally probable.
And are you in a position to say whether any one scenario is more likely than the other scenario or are you not in a position to say?---Because of a lot of variables and unknowns I wouldn’t know which one is more probable but in my opinion I think the last scenario is less probable. It is possible but it is less probable.
[7]Emphasis added.
Two agreed facts were also put before the jury:
1At all relevant times, [the applicant] was a prohibited person under the Firearms Act 1996, and was therefore prohibited from possessing a firearm.
2In 2018, the property at 5 Byron Place, Taylors Hill was owned by [the applicant’s] brother, [Shaun] Farrugia.
Ground 2: Were the jury misdirected?
It is convenient to deal first with the second ground, which contends that the judge’s directions, given in answer to a jury question, occasioned a substantial miscarriage of justice in that the directions tended to suggest to the jury that they could convict the applicant on the basis that he had possessed the firearm at some time other than on or about 1 June 2018 and at some place other than Taylors Hill.
Background
By way of background, the indictment initially filed alleged that the applicant possessed the Ruger on 1 June 2018. A new indictment was filed over, however, changing the date of the alleged offence from ‘1 June 2018’ to ‘on or about 1 June 2018’.[8] As a result, counsel for the applicant was prompted to seek a stay of proceedings on the basis that the new indictment provided ‘insufficient particularisation of the offence charged’.
[8]See Criminal Procedure Act 2009, s 164.
Resisting the application for a stay, the prosecutor made it clear that the prosecution case was one of actual physical possession, rather than of ‘constructive custody or control’. Given that clarification, counsel for the applicant did not press the application for a stay. Further, at the trial judge’s suggestion, the prosecution filed an amended summary of prosecution opening[9] which contained the following:
The Crown alleges that on or about 1 June 2018, the accused possessed the firearm, in that he had and exercised access to the firearm.
And consistently with the amended summary of prosecution opening, the prosecutor made it clear in his oral opening to the jury that the possession alleged involved the applicant having ‘had and exercised access to the firearm’ on or about 1 June 2018.
[9]See Criminal Procedure Act 2009, s 182.
At the close of the evidence, in the course of his final address to the jury, counsel leading for the applicant made a vigorous attack on the prosecution case, relying heavily on the fact that the indictment alleged the applicant’s possession of the firearm ‘on or about’ 1 June 2018. The flavour of his address on this aspect may be gleaned from the following passage of his address:
And DNA cannot be aged. A week ago? Two weeks ago? A month ago? Three years ago? On or about 1 June. Yes? All right. Why? Why, because you found it? You found it on 1 June 2018, therefore you say it was possessed on or about 1 June 2018. On what basis? It was there. What if it was 1985? Or 1995? Or 2005? Or 2015? Well that will do. We’ve come across this on 1 June 2018. Right. That will do, on or about 1 June 2018. Just plucked.
What does the indictment say? Right at the start, on or about. We’re not trying to be tricky about saying, aha, you can’t show it’s on or about, albeit we definitely say that’s the case. We just say that to identify as it being indicative of the paucity of the evidence upon which you can rely to be satisfied beyond reasonable doubt, at the first hurdle they fall over. Headfirst into the puddle. One billion.
The impugned directions
After the addresses of counsel were complete, and before the trial judge commenced her charge, the jury asked two questions (‘the first questions’). Those questions, the judge’s suggested responses to them, and the attitudes of counsel to the suggested responses, are reflected in the following passage of transcript:
HER HONOUR: The question I have been asked, (1) what is the legal definition of possession; and (2) in reference to the indictment, what is the legal definition of on or about the first day of June? My provisional view is that I will let them know before I start my charge that I will give them instructions about the legal definition of possession. In relation to the legal definition of on or about the first day of June, there is no legal definition. It means what it says and that’s a matter for their determination. Is that acceptable?
[DEFENCE COUNSEL]: Yes, Your Honour.
HER HONOUR: Yes.
[PROSECUTOR]: Yes, Your Honour. I’d be grateful if Your Honour also indicated … that it’s the elements that need to be proven beyond reasonable doubt and that the date is not an element of the offence.
In her charge — in the course of which she provided the jury with a ‘checklist’ or ‘jury document’ concerning the elements of the offence — the judge told the jury that the prosecution must prove that the applicant possessed the firearm ‘on or about’ 1 June 2018, and she reminded the jury of the defence arguments that relied on the proposition that DNA cannot be aged. Importantly, her directions included the following:[10]
The third element that the prosecution must prove is that the accused possessed the firearm. This and the fourth element are the true issues for your deliberations, in that the accused denies possessing the firearm and it follows, denies intending to possess the firearm. In this case, the prosecution seeks to prove this element by relying on a law and here, ladies and gentlemen, is the answer to your first question,[[11]] what is the legal definition of possession. The law that says a firearm is possessed by a person if he had access to a firearm and exercised access to a firearm.[[12]] So he had access to the firearm, but that is not enough. It is not enough that he could. He has to and exercise access to the firearm. Intentionally and knowingly, which is that fourth element.
The prosecution alleges here that the accused had and exercised access to the firearm and I will review some of the arguments that [the prosecutor] relied upon in proof of that, after we take our short break, but this is a question of fact for you. You must be satisfied beyond reasonable doubt that [the applicant], on or about the date charged, had and exercised access to that firearm. If you are left with a reasonable doubt, you must acquit and you would not even go on and consider the fourth element.
The fourth element that the prosecution must prove is that the accused intended to possess the firearm. So, in determining whether or not the accused intended to possess the firearm, you will need to decide if you can draw an inference from all of the evidence in the case, that he had that intention. …
[10]Emphasis added.
[11]See [0] above.
[12]Section 3(1) of the Firearms Act 1996 defines ‘possession’ as follows:
possession in relation to a firearm, includes—
(a) actual physical possession of the firearm; or
(b) custody or control of the firearm; or
(c) having and exercising access to the firearm, either solely or in common with others; …
After the jury retired, they asked two further questions (‘the second questions’). The second questions, and the judge’s consequential directions, are reflected in the following passage:[13]
Thank you very much for your questions, (1), ‘Is there a reason that “on or about 1 June 2018” was removed from the jury elements document?’ (2), ‘Are we required to consider the date in respect to elements 3 and 4 in the jury elements document?’ I’ll answer those questions now.
In relation to the jury document, this is a checklist. It was provided simply as shorthand to explain the essential elements of the charge that [the applicant] faces so as to save you taking notes. The checklist itself is not my charge; it’s those explanations of law that I’ve given that are the charge, and the checklist is provided as an aid, a shorthand aid, only.
The checklist records the four elements of the offence charged, and as you may remember from the directions of law yesterday, the elements of the offence are the only parts of the case that require proof beyond reasonable doubt. That is the reason why the checklist records those four points. The date of ‘on or about 1 June 2018’ is not an element, and it does not itself require proof beyond reasonable doubt to the same level of your satisfaction. It is a starting point but not the ending point.
When it comes to the issues joined in this trial – that is, raised by the prosecution and met by the defence – the date, location and particulars – that is, on or about 1 June 2018 at Taylors Hill and the circumstances that we heard – proceed on the basis that the proof of possession of a firearm related to possession of the item on or about 1 June in the boot of the car at Taylors Hill. So the date frames your consideration of whether the elements are proven beyond reasonable doubt; that is, starting with ‘on or about 1 June 2018’ at Taylors Hill in the boot of the car, as we’ve heard so comprehensively, can you then be satisfied beyond reasonable doubt of the four elements that are set out on the checklist?
Suffice to say that, say, hypothetically, you were satisfied beyond reasonable doubt of those four elements of possession in entirely different circumstances, you’d be looking at the wrong test. You would have misapplied the directions that I have given you. Consideration of possession in entirely different circumstances would lead to acquittal because that is not the charge that the accused faces. Instead, you are simply looking at his behaviour on 1 June at Taylors Hill and whether the circumstances that we have heard prove his possession beyond reasonable doubt on or about that date.
So turning back to the questions, the reason why that date was removed was just so that you are left with what needs to be proven beyond reasonable doubt. But are you required to consider the date in respect of elements 3 and 4 in the jury elements document? Yes, you are, because you are only considering possession on or about 1 June 2018 at Taylors Hill.
So consideration of whether he possessed a firearm on any other occasion in any other suburb is the wrong test entirely, and it must lead to acquittal. That’s not the question you’re considering. If you’re left with a reasonable doubt as to the four elements in the way that the issues are framed, you must acquit. If you are left with no reasonable doubt, then you must find the accused guilty. So it contextualises the way that the trial has been conducted.
[13]Emphasis added.
No exception subsequently was taken to these directions.
A little over two hours later, the jury asked a further question (‘the third question’):
Does the charge require proof beyond reasonable doubt that the accused exercised access to the firearm specifically at Taylors Hill on or about 1 June 2018?
Defence counsel proposed that the third question should be answered ‘yes’. The judge, however, appears to have directed the jury that the prosecution was not required to prove to the criminal standard the ‘date or place’ of the applicant’s possession of the firearm. She said:
The answer to the question is: noting that the charge does not require proof beyond reasonable doubt of the date or place, but starting with those particulars – that is, at Taylors Hill, in that suburb, indeed in that garage of that house, on or about 1 June 2018 – so the picture has been set, we’ve heard the facts, we understand the competing inferences available that have been joined for you – can you be satisfied beyond a reasonable doubt of the four elements of the offence, including did the accused have and exercise access to that firearm?
So you start with the particulars, then you move to the elements, but you must be satisfied beyond reasonable doubt that he had and exercised access to the firearm, thank you.
Following this further direction, defence counsel took exception, submitting that the judge should direct the jury that ‘if they were satisfied beyond reasonable doubt that it was on some other time [that the applicant exercised access to the firearm], that would not be sufficient’. The judge declined to redirect, however, and the jury returned a verdict minutes later.
The applicant’s submissions in this Court
In this Court, counsel for the applicant submitted that the trial judge misdirected the jury. Counsel submitted that, whilst it is generally true that the date of an offence need not be proved beyond reasonable doubt, there are exceptions. Plainly, a jury can only find an accused guilty on the basis of conduct on a date other than that particularised if there is evidence justifying that course. Counsel contended that in the present case, there was no evidence that would have allowed the jury to find the applicant guilty based upon conduct other than that on or about 1 June 2018. Hence the date of the offence was a ‘material’ particular.
Further, the applicant’s counsel submitted that the prosecution case was limited to conduct at a particular place — Taylors Hill — at a particular time — on or about 1 June 2018. Although it was an agreed fact that the applicant was a prohibited person ‘at all relevant times’, that agreed fact only established that the applicant was a ‘prohibited person’ on or about 1 June 2018.[14] The prosecution did not lead any evidence concerning the applicant’s conduct other than at that time, and the agreed fact did not establish that the applicant was a prohibited person at any other time.
[14]See [17] above.
In oral argument, senior counsel for the applicant submitted that the date of the offence clearly became a central issue in the jury’s collective mind — counsel adopted the judge’s description of it as a ‘fixation’ — and it was an error to leave the jury in any doubt as to what they were required to find in order to convict. Thus, even if it be accepted that the judge’s directions given in answer to the second questions were correct, the effect of those correct directions was undone by the directions given in answer to the third question. A substantial miscarriage of justice resulted.
The respondent’s submissions in this Court
Counsel for the respondent submitted that the trial judge’s directions, given in response to the second questions, did not tend to suggest that the jury could convict the applicant on the basis that he possessed the firearm at some time other than on or about 1 June 2018, or at some place other than Taylors Hill. On the contrary, counsel submitted, in her directions given in answer to the second questions,[15] the trial judge directed the jury in unambiguous terms that they could not reason in that way.
[15]At [24] above.
In oral submissions, although senior counsel for the respondent accepted that the judge’s directions given in answer to the third question were ‘unhelpful’ — counsel frankly conceded that she could not ‘interpret’ them — she nonetheless contended that they did not amount to a ‘wrong direction of law’. Counsel submitted that the trial judge did not contradict or undermine the correct directions given in answer to the second questions when she answered the third. Instead, in the directions given in her answer to the third question,[16] the trial judge reminded the jury that the particulars are not elements of the offence, and that it is the elements of the offence that the jury needed to be satisfied of beyond reasonable doubt before returning a verdict of guilty. Counsel submitted that, even if considered in isolation, the response to the third question did not suggest to the jury that they could convict the applicant on the basis that he intentionally possessed the firearm on some other occasion or in some other location other than his brother’s address on or about 1 June 2018.
[16]At [27] above.
Discussion
By virtue of s 159(3) of the Criminal Procedure Act 2009, an indictment must be in writing; signed by the DPP or a Crown Prosecutor in the name of the DPP; and ‘comply with Schedule 1’. Clause 1 of Schedule 1 in turn provides that an indictment must state the offence that the accused is alleged to have committed, and contain the particulars that are necessary to give reasonable information as to the nature of the charge.
Generally, the date of an offence has not been regarded as a material particular which the prosecution is required prove beyond reasonable doubt, unless the date constitutes ‘an essential part’ or ‘of the essence’ of the alleged offence. So much was made clear more than a century ago by Atkin J in Dossi:[17]
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. ‘And although the day be alleged, yet if the jury finds him guilty at another day, the verdict is good, but then in the verdict it is good to set down on what day it was done, in respect of the relation of the felony; and the same law is in the case of an indictment’[18] … Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment.
[17]R v Dossi (1918) 13 Cr App R 158 (‘Dossi’), 159–60. See also WGC v The Queen (2007) 233 CLR 66, 80–1 [43]–[44] (Kirby J); 109 [56] (Crennan J) (‘WGC’).
[18]E Coke, The Institutes of the Laws of England, 17th ed, Clarke & Sons, 1817, London, p 318.
Moreover, generally speaking there is nothing objectionable about resort to the formula ‘on or about’ with respect to the date of an alleged offence in an indictment when the available evidence does not permit greater specificity. Hence, in Hartley — a case in which an indictment alleged that an offence under the Bankruptcy Act 1914 (UK) had been committed ‘on or about’ a particular date — when giving the judgment of the Court Sachs LJ said [19]
that if the words ‘on or about’ the date are used in an indictment, then provided that the offence is shown to have been committed within some period that has a reasonable approximation to the date mentioned in the indictment, then the fact that the date is not correctly stated does not preclude a valid verdict of guilty.
[19]R v Hartley [1972] 2 QB 1, 7 (Sachs and Roskill LJJ and Ackner J).
Furthermore, in WGC, Hayne and Heydon JJ made it clear that, although specificity in an indictment is necessary to ensure a fair trial, when framing the particulars of the indictment the prosecution cannot be more precise than the available evidence will permit. They observed:[20]
It may readily be accepted that, as Callinan J said in Cheung v The Queen,[21] counts in an information ‘should be framed with all such specificity as to time, place, and circumstance as is possible’. As Callinan J pointed out in Cheung,[22] identifying the time at which an offence occurred may be important in fixing punishment. Sexual offences against young persons may well provide examples of cases in which the criminality of an offender may be assessed differently according to the age of the victim. But the chief reason to insist upon specificity in the framing of counts in an information is to ensure a fair trial. It is for the prosecution to identify as precisely as possible the charge that is preferred against an accused person. And the particulars that are given of an offence are to be framed with that purpose at the forefront of consideration.
And:[23]
In framing the particulars of an offence the prosecution cannot be more precise than the evidence available for tender at the trial will permit. If the evidence which the prosecution can adduce at trial will not fix precisely the date or place at which an offence occurred, the prosecution cannot give particulars that pretend to such precision. The particulars given in the present matter illustrate the point. They alleged the occurrence of intercourse between specified dates spanning a month and ‘at Renmark or another place’.
[20]WGC, 103 [127].
[21](2001) 209 CLR 1 at 52 [160].
[22](2001) 209 CLR 1 at 52 [160].
[23]WGC, 103 [129].
Of course, notwithstanding the general position referred to in Dossi (and many subsequent cases), there will be situations in which the date of the commission of an offence will be an essential particular requiring proof beyond reasonable doubt. Examples of such situations include where the age of an alleged victim is an essential element of the offence; where the commencement date of a statute creating an offence is critical; or where a statutory limitation period applies to a particular offence. Another example would be where the manner in which a case has been conducted has made the date of the commission of the alleged offence critical to an issue such as alibi.[24] Clearly, none of these kinds of situations applied in the applicant’s case.
[24]R v Pfitzner (1976) 15 SASR 171’ 185; R v Swan (1987) 27 A Crim R 289, 290; R v MacDonald (1995) 65 SASR 322; R v Westerman (1991) 55 A Crim R 353; R v Jacobs [1993] 2 Qd R 541.
In our opinion, when they are considered as a whole, the judge’s directions would not have been understood by the jury as suggesting that they could convict the applicant on the basis that he had possessed the firearm at some time other than on or about 1 June 2018 and at some place other than Taylors Hill. Even acknowledging that the directions given in answer to the jury’s third question were, perhaps, somewhat obscure,[25] it cannot be concluded that the jury could have been in any doubt that, in order to convict, they were required to be satisfied that the applicant had and exercised access to the Ruger at Taylors Hill on or shortly before 1 June 2018.
[25]See [27] above.
Indeed, when regard is had to the directions given in response to the second questions, it is plain the judge instructed the jury in unequivocal terms that they needed to ‘proceed on the basis that the proof of possession of a firearm related to possession of the item on or about 1 June in the boot of the car at Taylors Hill’; ‘possession in entirely different circumstances would lead to acquittal because that is not the charge that the [applicant] faces’; the jury had to look ‘at [the applicant’s] behaviour on 1 June at Taylors Hill and whether the circumstances that we have heard prove his possession beyond reasonable doubt on or about that date’; and the jury were ‘only considering possession on or about 1 June 2018 at Taylors Hill’.[26]
[26]See [24] above.
For these reasons, the second ground cannot be upheld.
Ground 1: Is the verdict unreasonable or incapable of being supported?
Turning to the first ground, which contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[27] we note at the outset that the oral submissions by the applicant’s counsel in support of this ground differed from the written case in an important respect, in that counsel ‘abandoned’ any reliance on the ‘third scenario’ — the police handling of the items — as an hypothesis explaining the presence of the applicant’s DNA on the firearm and its accoutrements.[28]
[27]See Criminal Procedure Act 2009, s 276(1)(a).
[28]See [15] above.
In the written case, counsel for the applicant had submitted (among other things) that, in light of the ‘concessions’ made by both Dr Chang and Detective Pybus, it was impossible for the jury to be satisfied beyond reasonable doubt that the applicant had intentionally exercised access to the Ruger, as opposed to his DNA having been deposited indirectly. The prosecution case was one of actual, rather than constructive, possession, and of direct deposit of DNA; but the evidence left open the possibilities, first, of indirect transfer, whether from the applicant’s brother, another occupant of the house or a police officer. As we have indicated, however, in oral submissions senior counsel for the applicant ‘abandoned’ as an hypothesis that the applicant’s DNA might have been transferred to the firearm and other paraphernalia in the course of the police handling those items.
Notwithstanding the abandonment of the ‘third scenario’, however, counsel for the applicant maintained that, in light of Dr Chang’s evidence, it was impossible for the jury to have been satisfied beyond reasonable doubt that the applicant’s DNA had been transferred directly to the Ruger and other items by him handling them (during the charged period), as opposed to his DNA having been deposited indirectly (or directly at some time other than the charged period). The evidence left open the possibilities, first, of indirect transfer from the applicant’s brother (or one of the other occupants of the house), or, secondly, direct transfer prior to the charged period.
Counsel submitted that there was nothing about the applicant’s presence at his brother’s house on 1 June 2018 that meaningfully added to the DNA evidence. The applicant was inside the house when police arrived, whereas the firearm was in a bag, in the boot of a car in the garage. There was no evidence to tie the applicant to the car, and there were two other persons present (other than the applicant and his brother) and multiple cars.
That the correct approach to a ground that contends that a jury’s verdict is unreasonable or cannot be supported having regard to the evidence is as laid down in M[29] was once more very recently affirmed in Lang,[30] in which Jagot J set out the applicable principles as follows:[31]
The relevant test is that identified in M v The Queen.[32] The question ‘which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[33] This question ‘is one of fact which the court must decide by making its own independent assessment of the evidence’.[34] While ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’, if ‘a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal’ then the court may conclude that no miscarriage of justice has occurred.[35] Accordingly:[36]
‘where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’
In a case where the evidence is circumstantial, this means that the appeal court must ‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’.[37] A circumstantial case must not be considered ‘piecemeal’.[38] If, on the whole of the evidence, ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’, then the jury is not able to draw that ultimate inference.[39] Accordingly, in a circumstantial case, it is impermissible to consider any piece of evidence in isolation from the whole. ...
[29]M v The Queen (1994) 181 CLR 487 (‘M’).
[30]Lang v The Queen [2023] HCA 29 (‘Lang’).
[31]Ibid [250]–[251] (citations as in original). See also Kiefel CJ and Gageler J, [1]; Gordon and Edelman JJ, [142]–[143].
[32](1994) 181 CLR 487.
[33]M v The Queen (1994) 181 CLR 487 at 493.
[34]M v The Queen (1994) 181 CLR 487 at 492.
[35]M v The Queen (1994) 181 CLR 487 at 494.
[36]M v The Queen (1994) 181 CLR 487 at 494 (footnote omitted). See also Dansie v The Queen (2022) 96 ALJR 728 at 730-733 [7]–[17]; 403 ALR 221 at 223‑226.
[37]Coughlan v The Queen (2020) 267 CLR 654 at 675 [55].
[38]R v Hillier (2007) 228 CLR 618 at 638 [48].
[39]Coughlan v The Queen (2020) 267 CLR 654 at 675 [55].
In our view, it was well open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. None of the factors relied upon by the applicant’s counsel dictate the conclusion that the jury must have entertained a reasonable doubt. Indeed, we consider that the various pieces of circumstantial evidence in the prosecution case combine to paint a powerful picture of guilt.
First, the applicant was present at his brother’s residence when the Ruger was found, and had ready access to the garage in which the car containing it was situated. As a result, it may legitimately be inferred that he had ready access to the firearm.
Secondly, the firearm was in a bag within a car situated in the garage of the premises. Presumably, the firearm had been put into a bag within the boot of the car, so as both to conceal it, and to provide a means of transport.
Thirdly, not only was it open to the jury to find that the applicant’s DNA was on the firearm and associated paraphernalia (such as the magazine and bipod attachment), but the location of the DNA compelled the inference that the DNA was deposited in the course of handling the firearm in its intended manner of use. Hence, it was open to find that the applicant’s DNA was located on the foregrip; the trigger and trigger guard; and the rear grip; and thereby to conclude that the overwhelming probability was that the DNA was deposited in those three locations in the course of the applicant handling the Ruger in a conventional manner: by holding the foregrip with one hand, whilst holding the rear grip — with a finger or fingers on the trigger or trigger guard — with the other. Moreover, it was open to find that the applicant’s DNA on the magazine and stock was consistent with him having inserted or removed the loaded magazine from the firearm, and with him having opened or closed the stock. It was also open to the jury to conclude that the applicant’s DNA was found on the ammunition box, which — particularly combined with the evidence that his DNA was on the magazine — suggested very strongly that he had loaded the magazine, preparatory to inserting the magazine into the firearm for use.
Fourthly, it was open to reject as a reasonable hypothesis that the applicant’s DNA was deposited on the Ruger and its accoutrements as a result of indirect transfer. In that regard, it will be remembered that, although Dr Chang agreed that the various scenarios put to her by defence counsel in cross-examination were ‘possible’, they were ‘not equally probable’. And significantly, Dr Chang made it clear that, in order to get a DNA profile providing the likelihood ratio of the value found in the present case, there had to be a lot of DNA material to transfer. In other words, the profile with the likelihood ratio in this case was far more consistent with direct, rather than indirect, transfer. Furthermore — and noting once more that the third scenario was ultimately abandoned by counsel for the applicant — Dr Chang was of the view that the hypothesis that the applicant’s DNA might have been the result of indirect transfer in the course of the police handling the relevant items was ‘less probable’ than the other scenarios.[40]
[40]See [15]–[16] above.
Finally, the hypothesis that the applicant might have handled the firearm, magazine, ammunition container and attachment at some time wholly remote from 1 June 2018, and that then, without his knowledge, those same items coincidentally happened to be stored together in the boot of a car situated at his brother’s property — where he was spending time when the police executed a search warrant — was wholly unrealistic. The jury were entitled to reject it as a reasonable hypothesis consistent with the applicant’s innocence.
Before leaving this ground, it is necessary to make one final observation. At times, both the written and oral submissions of the applicant’s counsel were apt to convey the notion that the bare acknowledgment by Dr Chang of the theoretical possibility that the presence of the applicant’s DNA on the Ruger (and associated items) might have been the result of indirect transfer by his brother (or another) necessarily equated to a reasonable hypothesis consistent with innocence. As was pointed out in the course of oral argument, however, Dr Chang was not called upon to draw the ultimate inference whether the presence of the applicant’s DNA on the firearm established that he had possessed it in the relevant sense. Axiomatically, the fact-finding function was solely the province of the jury. As part of that function, the jury had to determine what inferences could be drawn from the evidence as a whole, including Dr Chang’s evidence as to theoretical possibilities concerning indirect transfer.[41] In so doing, and so as to determine whether the prosecution had established the applicant’s possession of the firearm to the criminal standard, the jury were entitled — indeed bound — to consider not only the mere presence of the applicant’s DNA on the firearm, but also its location. As we have indicated, the jury were not bound to consider that Dr Chang’s evidence concerning the theoretical possibility of indirect transfer meant that there existed a reasonable hypothesis consistent with the applicant’s innocence.
[41]See, e.g., Lang, [6] (Kiefel CJ and Gageler J).
The first ground must fail.
Conclusion
The application for leave to appeal against conviction must be refused.
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