KD v R

[2020] NSWDC 237

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	KD v R [2020] NSWDC 237
Hearing dates:	23 April 2020
Date of orders:	01 May 2020
Decision date:	01 May 2020
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Appeal conviction dismissed.
Catchwords:	Juvenile all grounds appeal - break and enter - commit serious indictable offence- larceny
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001
Cases Cited:	AG v Director of Public Prosecutions [2015] NSWCA 218 Allesch v Maunz [2000] HCA 40 Bandana v The Director of Public Prosecutions [2016] NSWCA 140 Charara v R (2006) 164 A Crim R 244; [2006] NSWCCA 244. Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Gianoutsis v Glykis [2006] NSWCCA 137 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 The Queen v Baden-Clay [2016] HCA 35 Wood v Director of Public Prosecutions [2006] NSWCA 240
Category:	Principal judgment
Parties:	KD (Appellant) Regina (Crown)
Representation:	Solicitors: Ms Tabuteau for the appellant Mr Dixon for the Crown
File Number(s):	2018/00340621
Decision under appeal	Court or tribunal: Albury Local Court Jurisdiction: Criminal Date of Decision: 10 January 2020 Before: Magistrate Funston File Number(s): 2018/00340621

Judgment

1. HIS HONOUR: The appellant appeals against conviction and sentence from orders made by his Honour Magistrate Funston in the Albury Children’s Court on 10 January 2020. The appellant was convicted of the following offences:

a) Aggravated in company break and enter and commit serious indictable offence, larceny, contrary to s 112(2) of the Crimes Act 1900, and

b) Use an offensive weapon in company with intent to commit an indictable offence (intimidation) contrary to s 33B(2) Crimes Act 1900.

2. The hearing in the Children’s Court proceeded by way of hand-up brief. No witnesses were called. The evidence can be summarised as follows: On the night of the 5th and 6 November 2018 Gary Essex and Christine Essex were asleep in their home at Glenroy and locked all the external doors before going to bed. Sometime around 1pm Gary was awoken to what sounded like someone walking on the wooden floorboards of his house. Christine said words to the effect of “I think that there is someone here”. Gary and Christine both got out of bed. Gary looked through their bedroom door. He could see light coming from the end of the hallway from the direction of the garage. He could also hear distant muffled voices and could not tell whether they were male or female. Christine could hear male voices but could not tell how many. Gary shut the bedroom door and called Albury Police at 1.11am.

3. Christine went to the ensuite window which faces the road. She could see a person standing out the front on the driveway halfway between the house and the street. It was very dark so she could not see much more than a silhouette. Christine could see that the person had a medium build. Christine said words to the effect of, “There is still someone out the front”. Gary made a second call to Albury Police at 1.14am and was advised that police were close by. Gary could hear noise in the garage and could clearly hear more than one male voice. Gary opened the bedroom door a little and yelled, “Get out”. He then heard a male voice call out but could not understand what was said as he had shut the bedroom door. Gary and Christine heard footsteps and loud clunking on the floorboards coming towards their bedroom. Gary locked the bedroom door. There was then loud solid banging on the bedroom door. Gary and Christine put their weight behind the bedroom door to prevent the intruders from entering.

4. There were small holes being made in the door as it was being banged. Christine could see a golf iron head coming through the holes in the door. Gary and Christine both yelled, “The keys are in the kitchen” but the banging continued until police arrived. Christine could see through a hole that was made in the wall and observed two people. One of them, a male, bent down so that his face was close to the hole. Christine could see that he had dark skin and dark hair. She could also see uncovered legs behind the male. They appeared to look dark as well. She could not see how dark the man was as there was no light in the hallway.

5. When police arrived and the offenders had left Gary noticed that a number of items had been stolen, including several sets of keys, Gary’s wallet with $110 inside, Christine’s handbag, purse and mobile phone, and an Apple iPad. Some of these items were recovered from in and around the house.

6. At about 2am the appellant was located by Christopher Morey, a neighbour at Glenroy in the backyard of that address. Morey observed him lying flat on the ground attempting to conceal himself in the darkness. Senior Constable Medina attended the premises at about 3.15am on 6 November 2018 in response to the incident and seized a number of items of interest. Those items included a 2 litre orange juice bottle and a Rapier brand golf club. Both items returned DNA matches with the appellant.

7. The prosecution case is circumstantial. Accordingly the prosecution must satisfy the Court that the circumstances are such to exclude all reasonable hypotheses consistent with innocence. For an inference to be reasonable it must be based on something more than mere conjecture. The bare possibility of innocence will not prevent a finding of guilt where the inference of guilt is the only inference reasonably upon a consideration of all of the facts in evidence. 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. That is to say the evidence should be looked holistically and not in piecemeal fashion.

8. There are four pieces of key evidence that the Crown relies upon:

a) A 2 litre juice bottle which was located in the bushes to the left of the front lawn of the premises. The DNA recovered from this item was a mixture that originated from at least four individuals including the appellant.

b) A Rapier brand gold club seized from the left hand side of the backdoor of the property. There was a mixed DNA profile originating from at least three individuals recovered from this item. The major contributor was the appellant. The DNA from the minor contributors was not suitable for comparison.

c) The apprehension of the appellant at about 2am at a nearby address.

d) Christine’s description of the two offenders.

9. The appeal was adjourned to enable Ms Tabuteau, who appears for the appellant, to provide written submissions about the Court’s role on an all grounds appeal. Those helpful submissions are dated 22 April 2010. Ms Tabuteau submits that the burden of proof remains on the Crown: Gianoutsis v Glykis [2006] NSWCCA 137 at [42] - [43]. The role of the District Court judge on appeal is to form his or her own judgment of the facts: Charara v R (2006) 164 A Crim R 244 at [18]. Some cases have clearly stated there is no requirement that a judge on appeal must first find an error: Gianoutsis v Glykis, Wood v DPP [2006] NSWCA 240 at [5] and [7]. Others have referred to the requirement of error: Dyason v Butterworth [2015] NSWCA 52 at [28] and Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [28].

10. The difference in approach appears to derive from the following passages in Allesch v Maunz [2000] HCA 40 at [23],

“For present purposes the critical difference between an appeal by way of rehearing and a hearing de novo is that in the former case the powers of the appellant court are exercisable only where the appellant can demonstrate that having regard to all the evidence now before the appellant court the order that is the subject of the appeal is the result of some legal, factual or discretionary error whereas in the latter case those powers may be exercised regardless of error. At least that is so unless in the case of an appeal by way of rehearing there is some statutory provision which indicates that the powers may be exercised whether or not there was ‘error’ at first instance.

And the critical distinction for present purposes between an appeal by way of rehearing and an appeal in the strict sense is that unless the matter is remitted for rehearing a court hearing an appeal in the strict sense can only be of the decision which should have been given at first instance, whereas on an appeal by way of rehearing an appellant court can substitute its own decision based on the facts and the law as they stand.”

11. In AG v DPP (NSW) [2015] NSWCA 218, which was heard and decided after Dyason, both Basten JA and Simpson JA considered the legislation and cases on the issue although they did not decide the question. Basten JA appears to favour the requirement of an error: at [8] - [15], relying particularly on the above emphasised portion of Allesch. His Honour, however, also states at [34] that “error” has no precise meaning, and further,

“It refers broadly to the satisfaction of the appellant judge that the trial judge was wrong and should be corrected. Put negatively it means that the judgment of the trial judge will not be set aside unless the appellant judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend upon a range of factors, indeed a miscarriage of justice warranting intervention may occur in the absence of ‘error’ in the ordinary meaning of that term”.

12. Simpson JA considered at [79] - [83] a line of High Court authorities including Allesch, Federated Carters’ and Drivers’, De Costa, and Brideson (No 2) on the question of identification of error and concluded at [84] - [85],

“There is nothing in either Brideson (No 2) or in the Federated Carters’ and Drivers’ case that calls for the identification of specific error before the obligation for the appellant court to exercise independent judgment arises. On these authorities, I would conclude that it is not necessary, before the appellant power of the District Court has exercised, that error of law, fact or discretion is shown”.

13. Despite the differing authorities in the Court of Appeal and the Court of Criminal Appeal her Honour also noted at [88] - [93] that there was no criticism by the Court in Mulder (which cited Dyason) of the actual decision‑making approach taken by the two District Court judges in the Mulder Appeals. That is an independent analysis of the Local Court evidence and determination of guilt without any anterior identification of error. The appellant in this Court submits that Simpson JA’s approach is the more correct approach.

14. In my view s 18(1) of the Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of the evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsos v Glykis [2006] NSWCCA 137 at [24] - [31]. The principles governing appeals from judges sitting without a jury apply in that appellant judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].

15. Whilst the magistrate’s reasons are not part of the certified transcripts referred to in s 18(1) recourse may be had to them since the appellant function could not properly take place without reference to them: Charara v R [23] - [24]. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

16. The powers of the District Court are exercisable where the appellant demonstrates that the order, the subject of the appeal, is the result of a legal, factual or discretionary error in which event the appellant court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].

17. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I proceed on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v The Director of Public Prosecutions [2016] NSWCA 140 at [10], and Engelbrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellant judge that the trial judge was wrong and should be corrected. Put negatively it means that the judgment of the trial judge will not be set aside unless the appellant judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term: AG at [34] per Basten JA.

18. The appellant’s key submission is that a secondary transfer of his DNA onto the golf club is a reasonable explanation for its deposit. It is submitted on the appellant’s behalf that in the absence of any other direct or circumstantial evidence that he was inside the property it raises a reasonable doubt and is equally consistent with his innocence. The following is suggested on behalf of the appellant; that is, that these matters bear on the possibility of secondary transfer:

(i) There was at least four profiles in the DNA mixture from the mouth of the juice bottle (found in the front garden)

(ii)There were at least three profiles in the DNA mixture from the handle of the Rapier golf club (found near the backdoor).

(iii)The multiple profiles point to the possibility of those items having been held or passing between more than one person.

(iv)While the appellant’s profile cannot be excluded in the mixture on the Rapier golf club this does not necessarily mean he did in fact touch the item given the case with which transfer can occur.

(v)The appellant was found some 50 metres after the break and enter at 964 Range Road. It is a reasonable possibility that he was in contact with other people near around the time and that he shared the orange juice bottle with an offender who handled the Rapier. He may also have had social contacts such as shaking hands with one of the persons who handled the Rapier.

(vi) Unknown male individual D is a contributor to the mixture on the bottle as well as a contributor to a mixture found on a nine iron golf club found at the property.

(vii)There is accordingly a real possibility that if the appellant shared the bottle with D or one of the other contributors his DNA was conveyed by one of them onto the Rapier. There could have been more than one person effecting transfer of the appellant’s DNA. Multiple golf clubs were displaced.

(viii)   Similarly, there is the possibility that his DNA was conveyed on the juice bottle in the first place by secondary transfer.

19. In considering the appellant’s submissions, and bearing always in mind the obligation is upon the Crown to prove its case, I note that the appellant did not give evidence.

20. Do the matters put on behalf of the appellant mean that the Crown is unable to exclude a reasonable hypothesis consistent with innocence? I think not. In The Queen v Baden-Clay [2016] HCA 35 the Court at [46] – [47] said,

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused; Peacock v The King. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw; Plomp v The Queen. See also Thomas v The Queen.”

“For an inference to be reasonable it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.”

21. The Crown relies upon the appellant’s DNA being located on two separate and discrete items located at the scene some distance apart. Of particular note is the Rapier brand golf club and the strength of the DNA match attributed to the appellant taken from the grip of that club. The appellant was the major contributor to the DNA mixture. The expert report indicates that,

“It is greater than 100 billion times more likely to obtain this major profile if it originates from KD rather than if it originates from an unknown unrelated individual in the Australian population”.

22. The Crown submits that an inference can be drawn that given the strength of the match to the appellant and the low level DNA yield of other contributors that the appellant had in fact held the club.

23. The Crown does not solely rely on the appellant’s DNA being located on foreign items of the premises. The Crown also relies on the fact that the appellant was located hiding nearby a short time after the offence. The fact of him hiding close by shortly after the offence, when combined with his DNA being located on two distinct items some distance apart at the premises, significantly strengthens the proposition that the appellant participated in a joint criminal enterprise in committing the offences for which he was convicted. The Crown submits it is clear that the offender used golf clubs in the commission of the offence and that there were a number of offenders involved at the location of the accused and DNA on a golf club seized from the premises is significant in this regard.

24. For there to be a reasonable inference consistent with innocence it must be based on more than mere conjecture. It must arise on the evidence considered as a whole and not in isolation. In my view the evidence looked at as a whole excludes any reasonable hypothesis consistent with innocence. The appellant’s guilt is the only reasonable inference that can be drawn. In making this finding I am satisfied beyond reasonable doubt that Mrs Essex believed that there were more than two people in the house and that the Rapier golf club with the appellant’s DNA was taken from the garage. The golf clubs were used to bash the bedroom door and that the Rapier golf club was found near the backdoor of the premises. I am satisfied that he was in company.

25. In my view the appellant has been unable to demonstrate that the magistrate fell into error and accordingly I dismiss the conviction appeal.

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Amendments

19 August 2020 - Edit Dyason v Butterworth [2015] NSWCCA 52 to NSWCA

20 August 2020 - Change Chiarara to Charara and add alternative citation: [2006] NSWCCA 244 to cover shheet.

05 July 2021 - Edit name of YP

Decision last updated: 09 September 2021