Goodfellow v The Queen
[2021] VSCA 262
•16 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0018
| JAMES DEAN GOODFELLOW | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL, EMERTON and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 August 2021 |
| DATE OF JUDGMENT: | 16 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 262 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1600 (Judge Johns) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of aggravated home invasion and theft – Applicant alleged to be ‘man in the grey hoodie’ who entered home with three other men – Identity in issue – Circumstantial case based on palm print found on rear window of vehicle used in home invasion, empty medication bottle in applicant’s name found in vehicle, and applicant’s DNA on grey hoodie discovered close to crime scene – DNA evidence on grey hoodie of mixed combination involving at least two contributors – Victim did not identify the applicant on a photo identification board – Whether reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty – Not reasonably open to the jury to be so satisfied – Real possibility that someone other than the applicant was the man in the grey hoodie – M v The Queen (1994) 181 CLR 487, Libke v The Queen (2007) 230 CLR 559, Pell v The Queen (2020) 268 CLR 123, applied – Extension of time and application for leave to appeal granted – Appeal allowed – Convictions set aside – Criminal Procedure Act 2009, s 276(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F Gerry QC with Ms M Casey | Greg Thomas, Barristers & Solicitors |
| For the Respondent | Mr C Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
EMERTON JA
SIFRIS JA:
Introduction
On 7 March 2019, after a nine day trial in the County Court of Victoria, the applicant was found guilty of aggravated home invasion[1] and theft.[2] Verdicts of acquittal had previously been directed on two other charges arising from the same incident.
[1]Crimes Act 1958 s 77B.
[2]Crimes Act 1958 s 74(1).
The indictment alleged that in the early hours of 21 January 2017, the applicant, in the company of three other men — Jonnie Gration, Gary Murphy and an unknown male — attended a private home in Foxton Street, St Albans. They kicked in the front door, confronted one of the residents and stole various items.
The four men were captured on CCTV entering the house. Gration was carrying an air rifle, Murphy was carrying a baseball bat and the other two offenders were unarmed. The applicant was alleged to have been one of the two unarmed offenders. It was alleged that he was the man seen to be wearing a grey hoodie.
The house was owned by Martin Srokowski, who lived there with his partner Natasha Leone. Srokowski fled over the back fence before the men entered the house. Leone remained and was confronted by the men. She gave evidence about what she saw and heard. The men asked for cash and for the whereabouts of Srokowski, but only succeeded in collecting and removing some items that were to hand: electronic equipment, handbags and children’s toys.
The four men had arrived in two vehicles: a black Toyota Kluger and a silver Hyundai i30. The Kluger had been stolen some five days earlier and bore stolen number plates. After collecting items of value and returning to the vehicles, the men left the scene. Two men were observed departing in the Hyundai; a single man was observed in the Kluger. The applicant was alleged to have run back through the house and escaped over the back fence, dropping his grey hoodie in a neighbouring street approximately 80 metres from the house. The Kluger was briefly pursued by police and crashed into a tree less than 200 metres from the house. The driver fled, leaving the stolen and other items in the car.
The applicant was arrested elsewhere at a later date.
Gration pleaded guilty to aggravated home invasion. The applicant pleaded not guilty to the charges and was tried jointly with Murphy.
The central issue in the applicant’s trial was identity. The prosecution made a circumstantial case against him based largely on three pieces of evidence: his palm print on the outside rear fixed window of the Kluger; an empty medication bottle found in the Kluger that had been prescribed to him and dispensed some days earlier; and the existence of the applicant’s DNA, in a mixed combination involving at least two contributors, on a grey hoodie found close to the crime scene.
Leone was unable to identify the man in the grey hoodie when shown an identification board that included a photograph of the applicant.
Proposed grounds of appeal
The applicant seeks an extension of time within which to seek leave to appeal against his conviction and, if the extension of time is granted, leave to appeal against conviction.
The applicant’s proposed grounds of appeal are as follows:
Ground 1 –The trial judge erred in directing the jury about the identification evidence.
Ground 2 –The trial judge erred in summarising the defence argument about the DNA evidence.
Ground 3 –The trial judge erred when addressing the jury about the discharge on two counts by referring to ‘Mr Goodfellow’ rather than ‘the person in the grey hoodie’.
Ground 4 –The trial judge erred in twice failing to discharge the jury and in failing to correct the jury following errors made by the prosecution.
Ground 5 –An aggregate of errors has resulted in a miscarriage of justice.
Ground 6 –The verdict is unsafe and unsatisfactory.
While there are six separate proposed grounds of appeal, the sixth ground was described by senior counsel for the applicant as a ‘catch all’. Ground 6 was said to capture the essence of the applicant’s case: that, on the basis of the evidence and in light of the various alleged failures by the trial judge, it was not reasonably open for the jury to find the applicant guilty. Senior counsel explained:
In relation to the grounds, again as you know, there are six grounds which can be summarised as a misdirection on identification evidence and on DNA. The reference to Mr Goodfellow rather than the man in the grey hoodie that was not corrected, multiple failures to discharge the jury including after a significantly poor prosecution speech and then what are described as aggregate errors with Ground 6 perhaps the catchall of being unsafe and unsatisfactory but our submissions are as follows. On the substantive issues, it is our submission that it was not open to the jury to be satisfied of guilt beyond reasonable doubt. Put another way, there was a reasonable or realistic possibility that it was someone else in the grey hoodie engaging in that home invasion.
If ground 6 is made out, it will be unnecessary to consider the other grounds. It is therefore convenient to consider ground 6 at the outset.
Ground 6: Verdict unsafe and unsatisfactory
As discussed, the case that the applicant was the ‘man in the grey hoodie’ rested on three pieces of evidence. The Crown’s case against the applicant was summarised in counsel’s closing address at trial, as follows:
So not only do you have his empty bottle of medication in the car that’s so central to this, and not only do you have his palm print on one of the external windows of that car, but coincidence following coincidence, oops, his DNA clearly leads to the conclusion that you will readily find that he was a wearer
of that grey hoodie in circumstances where it is inextricably bound to the home invasion because of geography and of timing and the other evidence that he went out over the back fence and the 80-odd metres down to that corner where it’s thrown away, discarded for obvious practical reason.
The applicant’s submission on this ground is that in the absence of a positive identification, those three pieces of evidence were simply not sufficient to enable a jury to safely convict. Put another way, an inference consistent with innocence was reasonably open.
In addition, it is submitted, there was a catalogue of errors in the conduct of the trial that aroused the type of prejudice criminal trials are supposed to avoid. Because the jury was not properly directed to acquit if there was a reasonable possibility someone else could have been the man in the grey hoodie, and the jury was provided with irrelevant information that was not cured in the charge to the jury, this Court should conclude that there was an inference consistent with innocence that was reasonably open and that the trial was not conducted fairly.
The respondent conceded that the Crown case against the applicant was ‘largely three-pronged, albeit with some small matters around the edges’. The Kluger, which, it was submitted, was clearly involved in the home invasion and could be said to have been a tool of the theft, was stolen on the evening of 16 January 2017, and had therefore been out of its owner’s dominion for a number of days. It bore the palm print of the applicant on its rear passenger window and contained within it an empty bottle of prescription medication. The hoodie, it was submitted, was obviously the hoodie worn by the person in the CCTV footage. That was not seriously disputed by defence counsel at trial, and such a finding was open to be made by the jury. The man in the grey hoodie had run off and dispensed with the hoodie. In the back collar of the hoodie was a mixed DNA sample that includes the applicant’s DNA. The respondent submits that it is open to infer that the applicant has worn the hoodie at some point. The respondent also points to ‘small bits of evidence’, such as Leone’s evidence that the man in the grey hoodie had blond hair. The photo tendered by the Crown has the applicant with blond hair at around the time of the offending.
The respondent submits that, based on these facts, it was well open to the jury to be satisfied beyond reasonable doubt of the identity of the man in the grey hoodie. It was a matter of impression and degree. In this context, senior counsel for the respondent referred to Plomp v The Queen,[3] a purely circumstantial case in which a husband was convicted of murdering his wife, a good swimmer who apparently drowned in unchallenging surf while in the company of the husband. The husband had a motive to get rid of his wife, having formed a relationship with a young woman who believed him to be a widower. Dixon CJ said this of the rule relating to circumstantial evidence:[4]
It is said that the ordinary rule relating to circumstantial evidence has been ignored or departed from in convicting the accused, namely the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. In a case of a very different character a good deal of attention was paid to this rule: Martin v Osborne.[5]
Much difficulty is found in stating the rule, a difficulty which has not been overcome by employing the expression ‘more consistent’ as if there could be degrees of consistency. In the case cited what is said is: ‘If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant,
is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.’[6]
[3](1963) 110 CLR 234; [1963] HCA 44 (‘Plomp’).
[4]Ibid 243 (citations in original).
[5](1936) 55 CLR 367; [1936] HCA 23.
[6]Ibid 375.
Paraphrasing Dixon CJ, the respondent submitted that a jury confronted with the facts in this case would conclude that they gave rise to a degree of probability that the occurrence of those facts would be accompanied by the occurrence of the fact to be proved — that the applicant was the man in the grey hoodie — that was so high that the contrary could not reasonably be supposed.
Analysis
Section 276(1)(a) of the Criminal Procedure Act 2009 provides that an appeal against conviction must be allowed if the ‘verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
When the ‘unreasonableness’ ground — sometimes referred to as the ‘unsafe and unsatisfactory’[7] ground — is raised, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[8] This inquiry is purely factual; no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it thinks that upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[9]
[7]SKA v The Queen (2011) 243 CLR 400, 405 [12]; [2011] HCA 13 (French CJ, Gummow and Kiefel JJ).
[8]M v The Queen (1994) 181 CLR 487, 494; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).
[9]Ibid 493.
In M,[10] Mason CJ, Deane, Dawson and Toohey JJ explained:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.[11]
[10]Ibid. The relevant statutory provision was not in identical terms to s 276(1)(a) Criminal Procedure Act 2009 but used the same terminology. In that case, s 6(1) of the Criminal Appeal Act 1912 (NSW) provided, so far as relevant, that the court must allow an appeal against conviction if the court is ‘of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence’. See also Jones v The Queen (1997) 191 CLR 439, 452; [1997] HCA 56 (Gaudron, McHugh and Gummow JJ); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, 614–15 [25] (Gleeson CJ, Hayne and Callinan JJ), 623 [57] (McHugh, Gummow and Kirby JJ).
[11]Ibid 494.
In this case, there is no suggestion that the jury had an advantage that this Court does not have in seeing and hearing the evidence. The evidence, which is discussed below, was largely uncontroversial and no party sought to impugn the credit of a witness.
Subsequently, in Libke v The Queen,[12] Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in terms which emphasise the high hurdle which an appellant must overcome:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[13]
[12](2007) 230 CLR 559; [2007] HCA 30 (‘Libke’).
[13]Ibid 596–7 [113] (emphasis in original) (citations omitted).
In Pell v The Queen,[14] the High Court reaffirmed the statements in M and Libke, concerning the manner in which the contention that a jury’s verdict is unreasonable cannot be supported having regard to the evidence, is to be resolved.[15] The Court confirmed that to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence.[16]
[14](2020) 268 CLR 123; [2020] HCA 12 (‘Pell’).
[15]Ibid 145 [39].
[16]Ibid 147 [45].
In relation to inferences that may be drawn in a circumstantial case specifically, in Coughlan v The Queen[17] the High Court said:
An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to 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. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.[18]
[17](2020) 267 CLR 654; [2020] HCA 15.
[18]Ibid 674–5 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) (citations omitted).
The principles in M and Libke were also applied to a circumstantial case like the present in Fennell v The Queen.[19] Mr Fennell was convicted of murder in circumstances where there was no evidence directly linking him to the crime scene. The Crown case relied upon opportunity, motive, and a miscellany of other matters said to be inculpatory. Neither his DNA nor his fingerprints were found at the bloody crime scene. His glasses, clothes, shoes, ‘postie’ motorbike and utility vehicle revealed nothing incriminating. He was excluded as a possible contributor to the DNA profiles on a bag containing the victim’s documents which was found in a mangrove area near other belongings of the victim and a claw hammer.
[19][2019] HCA 37.
The High Court analysed the evidence and concluded that the Crown case concerning opportunity and motive was extremely weak. The most significant of the miscellany of other matters was evidence from two witnesses, Mr and Mrs Matheson, who purported to identify the hammer that was discovered in the mangrove area near the victim’s belongings. Those witnesses said that the hammer had been lent by Mr Matheson to the accused, which was significant because a hammer was the likely murder weapon. The High Court was especially critical of the evidence identifying the hammer. In overturning the conviction, the Court said:
Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice. For the reasons we have given, and without impugning the honesty of Mr and Mrs Matheson in any way, their evidence was glaringly improbable.
…
In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion. …[20]
[20]Ibid [81]–[82] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
It is therefore necessary to consider the evidence as a whole to gauge the significance of the handprint on the Kluger, the medication bottle in the Kluger and the hoodie found on the street, both separately and in combination, and in light of all of the evidence, and in particular, the evidence that Leone, who spent some time in the presence of the man in the grey hoodie in a fully lit room, and did not identify the applicant as the man in the grey hoodie when presented with a photograph of the applicant on a photo board.
Identification evidence
The Foxton Street house was fitted with four external cameras that recorded CCTV footage. The man in the grey hoodie appears in the CCTV footage entering the house. His face is not visible from the stills provided.
Leone saw and spoke to the man in the grey hoodie during the course of the home invasion. She had a number of interactions with that man during the time the men were in the house and then again shortly after they left the house. Her evidence in relation to her encounter with the man in the hoodie was as follows.
At about 3:30 am she was having a cigarette when she noticed on the CCTV monitor beside the bed two cars turn the corner and drive down the road travelling fairly slowly. About five minutes later, she saw headlights flashing and what appeared to be a person standing on the road. She got up and went into the lounge room where Srokowski was lying on the couch asleep. She woke him and suggested that they lock up the house because she had ‘a bad feeling’. They went to the bedroom to have a look at the monitor and saw four people walking into the front yard. The four people were covering their faces. One of them had on a grey hoodie and one of them was wearing dark clothing. One of them held a long object which she believed to be a gun. She assessed them as being male and in their mid-20s.
Upon seeing the men on the monitor, Srokowski ran out the back door and jumped the fence. Leone sat on the bed and heard the front door being kicked and flung open. She heard a male voice say, ‘Get on the floor, you’re under arrest’.
As the four men came into the house three of them turned left into the lounge room and one turned right into the bedroom where she was sitting. This man was wearing a grey hoodie and shorts. He came into the bedroom but did not come that close to her. He asked where her partner was and she told him she did not know. Nothing else was said. Another man with darkish hair entered the room wearing darker clothing. He asked where the keys to the Ninja (Srokowski’s bike) and to the 350 (Srokowski’s car) were. She said she did not know. That man came pretty close to her because he found the keys right next to her on the bed. The men started packing items into pillow cases, ‘just stuff they could find around’ belonging to Srokowski.
Not long after that, a third man entered the room with a gun in his hands, walked up to her, put it near her head and asked where the bundle of cash was. She said she did not know. The man in the darker clothing told the third man to back off and told her everything was going to be okay. The men kept asking her where Srokowski had gone and she kept saying she was not sure.
At some point, the man in the grey hoodie starting putting on Srokowski’s motorbike pants as well as her motorbike jacket. He did not speak to her. Shortly after, someone said something about leaving and they all collected their items and ran out the front door.
Leone got up and went into the hallway and saw the man in the grey hoodie come through the front door running towards the back door. As he opened the back door and stepped into the back yard, the dog started jumping on him and barking. The man yelled out ‘control your dog’. A short time later she heard the tin fence rattle and presumed he had jumped the back fence. She then got on the phone to her mother. While she was talking to her mother she walked out the front and encountered Srokowski running back into the house.
In cross-examination, Leone said that the man in the grey hoodie removed his facial covering and she saw that he had blond hair.
The informant gave evidence about the photo board that was shown to Leone. He compiled the photo board containing 12 images, including one of the applicant. Leone did not identify the applicant as one of the men who had broken in to the house. In fact, she pointed at a different image and said to the police officer, ‘They all look too old. The guys that were there were much younger’.[21]
[21]In relation to one of the other men, she said, ‘I’m not a hundred per cent confident that the eyes on this one looked very similar to the guy that kicked down the door and held the gun to my head’.
The informant confirmed that the applicant has scars on his face and a broken nose. One of the scars appears to run diagonally across his face from his left temple under his eye across the top of his nose and then continues across his right cheek. He also has a scar on his upper left lip and one on the top right hand side of his nose.
The jury was given two photographs of the applicant taken at about the time of his arrest. One of them clearly shows scarring.
Evidence in or on the Kluger: hand print and medication bottle
Sergeant Lodder from the Fingerprint Sciences Group at the Victoria Police Forensic Services Centre gave evidence at trial of examining and analysing a latent hand print recovered from the back left passenger window of the Kluger which was matched with the applicant.
In cross-examination, he agreed that it was just one of ten prints from on or inside the vehicle, some of which were identified as belonging to other parties, while others remained to be identified. He also agreed that there was no scientific method enabling determination of the age of the hand print, and that fingerprints can last for a very long time depending on environmental factors.
The informant gave evidence that an empty medication bottle with a label indicating that it was prescribed to the applicant was found by police in the rear passenger foot well of the Kluger under a number of other items. The label indicated that it contained a single dose of medication to be taken on 17 January 2017. Inquiries with the pharmacy showed that it had been dispensed on 16 January 2017.
It was not disputed that the Kluger was driven to the house by one or more of the men who carried out the home invasion. It was driven away from the house and hit a police car in Foxton Street before crashing into a tree a very short distance away in a neighbouring street.
The informant gave evidence that the Kluger was stolen sometime between 16 and 17 January 2017. Inquiries had not revealed who had possession of the Kluger prior to the date of the offending, 21 January 2017. The informant agreed that, so far as the applicant’s handprint on the fixed rear passenger side window of the Kluger can take things, it showed that the applicant had physical contact with the Kluger at some point prior to it being seized by the police on 21 January 2017.
The informant gave evidence that a large amount of clothing was found in the Kluger. The clothing was both male and female clothing, but predominantly female. The Kluger also contained male footwear. The clothing and footwear were in different sizes. None of it was subjected to DNA testing and the identity of the owners was not established.
The informant gave evidence that the Kluger also contained a number of identity documents and some mail and other items, including items that were not taken from the house. The owners of some of the items were identifiable because the items had names on them, but the owner or owners of most of the items remained unidentified. None of the items had been subjected to DNA analysis or fingerprint testing.
The informant confirmed that there was no DNA or fingerprint evidence linking the applicant to the Foxton Street house. Furthermore, there were no forensic links to the applicant by way of DNA or fingerprints to any of the items that were taken from the house. There was no forensic testing of the items that were in the pillowcases found in the Kluger or of a drone that was also found in the Kluger.
The informant was cross-examined about items found in the Kluger specifically linked to persons other than the applicant, including Gration and his partner, Angela McLean, and a man who was subsequently observed by police in the Hyundai with Murphy.
The hoodie
The hoodie was found in a street nearby. The street in question is the next street parallel to Foxton Street, and to the rear of the Foxton Street house. It is the street upon which one would most likely alight if one jumped over the back fence of the house.
The hoodie was tested for DNA and a sample was obtained.
Evidence about the DNA analysis was given by Alexandra Salerno, a forensic biologist at the Victoria Police Forensic Services Centre. There was no challenge to Salerno’s expertise to interpret DNA results.
Salerno interpreted the DNA results that were obtained from examinations conducted on exhibits collected from or near the crime scene (including the Kluger). The items included a firearm, a knife and the grey hoodie. Salerno was provided with a reference sample from each of Murphy and the applicant.
A sample was taken from the inside surface of the back of the collar region of the hoodie. A mixed DNA profile was obtained showing at least two contributors. Murphy was excluded as a contributor. The applicant was found to be one hundred billion times more likely to be a contributor than not. There were no other matches. The other contributor or contributors were not identified.
Salerno gave evidence about the likelihood ratio. A statistical calculation is conducted to determine the strength of the DNA evidence. A zero means that the person is excluded — their DNA is not detected in the result. Anything above a value of one indicates support for the proposition that that person is a contributor to the DNA detected. The higher the value, the stronger the support. Anything over one million is considered extremely strong support for the proposition that that person is a contributor. The statement that it is one billion times more likely that a person is a particular contributor could also be expressed as the chance of someone else having the same DNA profile as that detected is less than one in one hundred billion.
Salerno was cross-examined about the DNA on the hoodie. She gave evidence that only the inside back collar of the hoodie was sampled. She confirmed that there were ‘at least two’ contributors to the DNA profile obtained from the sample taken from the inside back collar. She could not exclude the other contributor being a male and could not say how long the DNA might have been on the hoodie.
Salerno gave evidence that it was not possible to determine who had most recently had contact with the hoodie. She could not exclude the possibility that the unknown person had the last contact with the hoodie, as DNA analysis does not enable the analyst to say anything about the order of deposits. The DNA profile was such that there was a major contributor and a minor contributor but she could not say who wore the hoodie last.
When asked whether, if somebody had handled the hoodie, it would be possible to obtain a DNA profile from the touching, Salerno confirmed that any contact could leave a transfer of trace DNA on the hoodie.
In cross-examination by counsel for Murphy, Salerno reaffirmed that it was not possible to say who was the last person to contribute DNA to the sample. The transfer of DNA to an item depends on many variables. She agreed that DNA can be transferred indirectly as well as directly.
In re-examination, Salerno explained that the collar area of the grey hoodie was chosen for the sample because that is where there is friction which allows DNA to transfer easily. Additionally, it is the area where people sweat. If DNA results are not obtained from that area, they can look to the cuffs and other areas where they might find the wearer’s DNA.
The informant gave evidence that a blue mobile phone cover that was found underneath the grey hoodie was not tested for DNA but that it was tested for fingerprints. A fingerprint was identified on the inside of the phone cover but remained unidentified.
Must the jury have had a doubt?
The question, as articulated in Libke, is whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt, that is, whether, having regard to the evidence as a whole, the jury was bound to entertain a reasonable doubt that the applicant was the man in the grey hoodie who broke into the Foxton Street house on the night in question. Put another way, was there a reasonable possibility that the man in the grey hoodie was not the applicant?
The Kluger was used to transport the offenders to and from the home invasion. The handprint evidence shows the applicant to have been in or near the Kluger at some point between it being stolen on 16 January 2017 and it being used in the home invasion on 21 January 2017. However, there was no evidence linking the applicant to the Kluger at any particular time during the relevant period or that he was ever actually in the Kluger. The handprint could have been applied to the Kluger at any time during that period, and, equally, the discarding of the medication bottle cannot be linked to the night in question. Moreover, it wasn’t necessarily discarded by the applicant himself, although it would be open to infer that it was, especially in light of the existence of the handprint on the vehicle.
It is open to infer from the DNA sample that the applicant came into contact with the hoodie at some point in time although, again, it is impossible to tie that contact to the night in question. The existence of his DNA on the inside collar says nothing about when he came into contact with the hoodie, although the fact that the sample was taken from the inside collar leaves it open to infer that the applicant wore the hoodie at some point. The fact that the likelihood ratio is so high says nothing about the duration of the contact or, more importantly, its timing. It simply establishes that the DNA found was much more likely to be the applicant’s DNA and that of one other unidentified person than the DNA of two random members of the community.
The DNA sample is evidence that at least one other person was in contact with the hoodie. However, the DNA analysis did not permit any conclusions to be drawn as to when each person was in contact with the hoodie or the level of contact that each had with the garment. If it was open to infer that the applicant wore the hoodie, it was equally open to infer that the other contributor whose DNA was found on the collar had also worn it. The DNA evidence did not exclude the possibility that another (unidentified) man was wearing the hoodie on the night in question.
It follows that the ‘three-pronged’ case against the applicant puts him in or near the Kluger and in or near the hoodie, but does not tie him to either the Kluger or the hoodie on the night in question. There were items in the Kluger belonging to a number of other people who were not the owners of the Kluger, and the DNA on the hoodie establishes that at least one other person was in contact with it. On the basis of the DNA evidence alone, that other person was as likely to have been the person who last wore the hoodie (on the night in question) as the applicant.
The identification evidence given by Leone is to be balanced against the evidence that pointed to the applicant being the man in the grey hoodie. Leone was shown a photograph of the applicant on a photo board with 11 others and did not identify him as one of the men present in the house. This is despite having spent some time in a lit room with the man in the grey hoodie, whose face was uncovered at the time. She spoke to him and watched him put on the motorbike gear. She interacted briefly with him again when he ran back through the house. Of the men she encountered in the house, Leone spent the longest period of time with the man in the grey hoodie.
Moreover, while Leone described the man in the grey hoodie as having blonde hair, she did not describe him as having scars. The applicant has distinctive scarring across his face.
It may be that the jury was not convinced that Leone was fully cooperating when she was asked to identify the man in the grey hoodie. Some of the victims’ conduct in this case was surprising and, on its face, inexplicable. However, it was not open to the jury to speculate about whether Leone had a motive to obfuscate. The jury was bound to factor into its consideration of whether it could be satisfied beyond reasonable doubt that the applicant was the man in the grey hoodie the evidence that Leone did not identify him as such.
In circumstances where the individual pieces of evidence did not tie the applicant to the Kluger on the night in question, the combined force of the evidence could not exclude the possibility that it was the other contributor to the DNA sample who wore the hoodie that night. As there was a real possibility that someone else was the last person to wear the hoodie and the eye witness failed to identify the applicant as one of the men present on the night, the jury must have entertained a reasonable doubt that the applicant was the man in the grey hoodie.
We do not disregard or discount that the jury was the body entrusted with primary responsibility for determining whether the prosecution established the applicant’s guilt by proving beyond reasonable doubt that he was the man in the grey hoodie. However, having reviewed the evidence and considered it as a whole, we have concluded that it leaves open the reasonable possibility that the man in the grey hoodie was someone other than the applicant. The evidence tying the applicant to the incident in the Foxton Street house on the night in question — the evidence associating him with the Kluger and the grey hoodie — admit as a reasonable possibility that he was not in the Kluger on the night in question and that the man wearing the grey hoodie was the unidentified person whose DNA was also found on the hoodie. This is reinforced by Leone’s failure to identify the applicant, particularly as she had a good opportunity to observe him and he has prominent scars on his face.
The respondent, in referring the Court to Plomp, emphasised that the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is to be assessed having regard to ‘the common course of human affairs’. In this case, it was submitted, having regard to the common course of human affairs, it would be too great a coincidence for the applicant to be associated with the Kluger and for his DNA to be on the grey hoodie unless he were involved in the home invasion. Senior counsel argued that it would involve coincidence upon coincidence and would therefore be understood by a jury, acting reasonably and rationally, to be not reasonably possible that the applicant was not involved.
We reject that form of reasoning. The jury’s understanding of the ‘common course of human affairs’ does not allow it to fill holes in the evidence by telling itself that it would be too much of a coincidence if the applicant were not involved.
In Plomp, in upholding the conviction, Dixon CJ concluded:
In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp’s evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.[22]
[22](1963) 110 CLR 234, 243; [1963] HCA 44.
Although the applicant left his mark on both the Kluger and the grey hoodie, and both the Kluger and the hoodie featured quite prominently in the home invasion, it would not, in our view, impose ‘an incredible strain on human experience’ to countenance the possibility that the applicant was not the person who entered the Foxton Street house wearing the hoodie on the night. The Kluger contained clothing and other paraphernalia belonging to a number of persons, some identified and some unidentified. The hoodie was, at the very least, handled by another person. It might have been left in the Kluger by one person and picked up and put on by another person who was about to enter the Foxton Street house. The evidence supports an inference that a number of people were in and about the Kluger during the period it was used as a stolen vehicle. Finally, of course, Leone did not identify the applicant as the man in the grey hoodie despite having had a good opportunity to observe that man on the night in question.
Disposition
The verdicts of the jury that the applicant was guilty of aggravated home invasion and theft cannot be supported having regard to the evidence.
The convictions on the charges of aggravated home invasion and theft must be set aside and acquittals entered on both charges.
In the circumstances, it is unnecessary to consider the remaining grounds.
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