Lee v Police
[2015] SASC 70
•8 May 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEE v POLICE
[2015] SASC 70
Judgment of The Honourable Justice Blue
8 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - MENS REA
CRIMINAL LAW - EVIDENCE - HEARSAY - EXCEPTIONS GENERALLY
Appeal against conviction.
The defendant was convicted by a Magistrate of seven counts of theft, five counts of illegal use or interference, two counts of entering residential premises to commit theft and three counts of entering or being unlawfully on premises.
Between 10 and 17 November 2012, a series of thefts and motor vehicle illegal use or interference offences were committed in the Aldinga Beach area. The offences comprised:
1. On 11/12 November 2012 illegal entry into a shed and theft of a shotgun at Aldinga Beach. A screwdriver and knife found outside the shed contained the defendant’s DNA.
2. On 12/13 November 2012 illegal entry into a shed, unlawful taking of a Mercedes and theft of items in the Mercedes at Seaford Rise. One week later the Mercedes was found at Port Willunga. A cigarette butt found in the Mercedes contained the defendant’s DNA.
3. On 12/13 November 2012, a Holden utility was taken from a house at Willunga. The utility was found the next morning at Aldinga Beach. A glove found inside the utility contained the defendant’s DNA as well as DNA contributed by a second person.
4. On 12/13 November 2012 two batteries, two petrol cans, a toolbox and a pram were taken from three separate locations in Aldinga Beach. One battery was found outside a neighbour’s house and the other items were found in or in the vicinity of the Holden utility.
5. Sometime before 17 November 2012 a person entered a house at Aldinga Beach, took several items and damaged a Commodore vehicle in attempting to start it. A hooded top containing a cigarette lighter found outside the back door each contained the defendant’s DNA as well as DNA contributed by one or two other persons.
The issue at trial was the identity of the offender. The prosecution tendered various witness statements and other exhibits by consent. The defendant did not give evidence.
The defendant appeals against his conviction on four grounds:
1. The Magistrate erred in finding beyond reasonable doubt that the defendant was the offender based upon his DNA being found on objects at the scene of four sets of offences.
2. It was not proved beyond reasonable doubt that the defendant intended to deprive the owner permanently of the petrol cans, car batteries or pram or make a serious encroachment on the owner’s proprietary rights.
3. The Magistrate relied on inadmissible hearsay evidence as to the ownership and lack of consent of the owners of two of the sets of items.
4. There was no evidence that the shed from which the shotgun was taken was a place of residence.
Held:
1. The shed from which the shotgun was taken was not proved to be a place of residence (at [23]).
2. The Magistrate was entitled to rely upon the hearsay evidence in the circumstances (at [28]).
3. Except for one car battery, it was appropriate to draw the inference that the offender who took the car batteries, petrol cans, toolbox and pram intended to make a serious encroachment on the owners’ proprietary rights (at [35]).
4. It was open to the Magistrate to be satisfied beyond reasonable doubt that the defendant was the offender in each case (at [48]-[52]).
5. Appeal allowed. Conviction on count 14 set aside. Appeal otherwise dismissed (at [53]).
Criminal Law Consolidation Act 1935 (SA) s 134, 86A, s 170A(1); Summary Offences Act 1953 (SA) s 17(1), referred to.
R v Armstrong (1990) 54 SASR 207, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"place of residence"
LEE v POLICE
[2015] SASC 70Magistrates Appeal: (criminal)
BLUE J:
This is an appeal against conviction.
The appellant, Brenton David Lee, was the defendant in the Magistrates Court charged with, inter alia,[1] seven counts of theft[2] and five counts of illegal use of or illegal interference with a motor vehicle.[3] He was also charged with two counts of entering residential premises to commit theft[4] and three counts of entering or being unlawfully on premises,[5] each of which was associated with an alleged theft and/or illegal interference. All offences were alleged to have been committed between 10 and 17 November 2012.[6]
[1] The defendant was also charged with one count of entering premises for an unlawful purpose, one count of unlawful interference with a motor vehicle and one count of attempting to enter a residence to commit theft (counts 4, 5 and 9). The Magistrate dismissed those counts and they can be ignored.
[2] Criminal Law Consolidation Act 1935 (SA) s 134.
[3] Criminal Law Consolidation Act 1935 (SA) s 86A.
[4] Criminal Law Consolidation Act 1935 (SA) s 170A(1).
[5] Summary Offences Act 1953 (SA) s 17(1).
[6] The information alleged that counts 14 and 15 were committed between 12 and 23 November 2012 but Mr Mills’ statement tendered at trial proved the offence was committed between 11 and 12 November 2012.
The issue at trial was the identity of the offender or offenders.
The defendant appeals against his convictions on the following grounds:
1.As to all counts, the Magistrate erred in finding that the evidence of his DNA on objects located at several different crime scenes was too much of a coincidence to be explained away by a hypothesis consistent with his innocence.
2.As to four of the theft counts (involving jerry cans, car batteries and a pram), it was not proved beyond reasonable doubt that the defendant intended to deprive the owner permanently of the property or make a serious encroachment on the owner’s proprietary rights.
3.As to two of the theft counts, two of the illegal interference counts and one of the unlawfully on premises counts, the Magistrate erred in relying on inadmissible hearsay evidence by a police officer of what he was told by the owners.
4.As to one of the entering residential premises to commit theft counts, there was no evidence that it was a place of residence.
Background
Sometime between 7.00 pm on 11 November 2012 and 6.30 am on 12 November 2012, a Remington shotgun was stolen from a locked cabinet inside a locked shed at the rear of a house at Esplanade Aldinga Beach. On the morning of 12 November 2012, the owner, Mr Mills, found the cabinet broken into and the shotgun missing. He located two screwdrivers, a bread knife and scissors under a tree by the front of the shed. The entry into the shed and theft of the shotgun were the subject of count 14 - entering a residence to commit theft; and count 15 – theft of Mr Mills’ shotgun (the Mills offences). DNA was later extracted from one screwdriver and the knife and compared with DNA from a buccal swab taken from the defendant. The DNA matched the defendant’s DNA with probabilities of 100 billion to one in the case of the knife and 3.6 million to 1 in the case of the screwdriver. The DNA was from a single source.
In the early hours of 13 November 2012, police received a report of a car break-in at a house at Ocean Street Aldinga Beach. At about 6.30 am, Senior Constable First Class Clarke and Senior Constable Holmes attended and spoke to Ms Collier at the house. They found a car battery outside the next door neighbour’s house. They found a yellow toolbox containing tools (collectively the toolbox) in the back of a Holden utility parked in the driveway of a house on the corner of Thomas Street and Ocean Street (the Thomas Street house), which house was about 50 metres from Ms Collier’s house. They found a petrol can on the ground near the Holden utility. Senior Constable Holmes was told by Ms Collier that the toolbox, petrol can and car battery belong to her and had been stolen from her shed that night. The entry onto the premises and taking of the items were the subject of count 6 - being unlawfully on premises; count 7 – illegal interference with Ms Collier’s motor vehicle by removing the battery; and count 8 – theft of Ms Collier’s toolbox, petrol can and car battery (the Collier offences).
Senior Constable Holmes looked around nearby streets. He saw a white utility with Western Australian number-plates parked out the front of a house in Whinnerah Avenue, which avenue intersects Ocean Street. That house was about 100 metres from the Thomas Street house. The utility had its bonnet up and battery missing. Senior Constable Holmes was told by the occupant of the house, Ms Slater, that the battery had been stolen from her utility. The police located the battery connected by jumper leads to the battery in the Holden utility in the driveway of the Thomas Street house. The removal and taking of the battery were the subject of count 12 – illegal interference with Ms Slater’s motor vehicle by removing the battery; and count 13 – theft of Ms Slater’s car battery (the Slater offences).
When the police attended at the Thomas Street house that morning, they found a green jerry can in the Holden utility. It was identified that morning by Mr Roach as having been stolen that night from the shed at his house across the road in Thomas Street. The entry onto the premises and taking of the jerry can were the subject of count 2 - being unlawfully on premises; and count 3 – theft of Mr Roach’s jerry can (the Roach offences).
The police also found a pram (which contained a third battery) near the Holden utility at the Thomas Street house. The pram was identified that morning by Ms Green as having been stolen that night from the rear yard of her house in Ocean Street not far from Ms Collier’s house. The entry onto the premises and taking of the pram were the subject of count 10 - being unlawfully on premises; and count 11 – theft of Ms Green’s pram (the Green offences).
The Holden utility found at Thomas Street had itself been stolen that night from Mr Thiele of Willunga. This was the subject of count 1 - illegal use of Mr Thiele’s Holden utility (the Thiele offence). The police found a pair of black motocross gloves inside the Holden utility. DNA extracted from the left-hand glove was later compared with DNA from a buccal swab taken from the defendant. The DNA matched the defendant’s DNA with a probability of 100 billion to one. There was also DNA from at least one other contributor on the glove.
On the same morning of 13 November 2012, Mr Dare found that his Mercedes had been stolen during the night from the shed at his house at Seaford Rise. Inside his Mercedes had been a jacket, GPS unit, toolbox and service book. The taking of the Mercedes and items in it were the subject of count 19 - illegal use of a motor vehicle; and count 20 – theft of Mr Dare’s jacket, GPS unit, toolbox and service book (the Dare offences). Mr Dare’s Mercedes was found by police one week later at Port Willunga. The jacket, GPS unit, toolbox and service book were missing. A hand rolled cigarette butt was found in the ashtray in front of the centre console of the Mercedes. DNA extracted from the cigarette butt was later compared with DNA from a buccal swab taken from the defendant. The DNA matched the defendant’s DNA with a probability of 100 billion to one. The DNA was from a single source.
On the evening of 17 November 2012, Mr Newchurch returned home to his house in Palmer Street Aldinga Beach after an absence of one week. Palmer Street intersects Whinnerah Avenue and is the next street south parallel with Ocean Street. Mr Newchurch found that someone had entered his house, disturbing various items, and taking his computer, two mobile phones, power tools, jewelry and coins. The freezer had been left open but the items inside had not thawed, suggesting that the entry was relatively recent. He later noticed that the housing around the ignition of his Commodore had been damaged, the ashtray removed, the glovebox opened and a screwdriver left on the ground by the driver’s door.[7] The entry into the house, taking of items from the house and interference with the Commodore were the subject of count 16 - entering residential premises to commit theft; count 17 – theft of Mr Newchurch’s items; and count 18 illegal interference with a motor vehicle (the Newchurch offences). A black hooded long-sleeved top was found in the rear yard of Mr Newchurch’s house outside his back door. There was a Bic cigarette lighter in one pocket. DNA was later extracted from the hooded top and lighter and compared with DNA from a buccal swab taken from the defendant. The DNA matched the defendant’s DNA with probabilities of 100 billion to one in the case of the hooded top and 400 million to one in the case of the cigarette lighter. There was also DNA from at least one other contributor on the hooded top and from at least two other contributors on the Bic lighter.
[7] While he did not notice this until the morning of 19 November, the vehicle was unregistered and undrivable and a strong inference is open that it happened before his return home on the evening of 17 November.
The defendant was interviewed by the police on 2 February 2013. He gave an address in Ratcliffe Road Aldinga Beach. The police put to him particulars of the offences. The defendant declined to comment.
The trial
At trial, the prosecutor tendered by consent witness statements by lay witnesses, police officers, crime scene examiners and a forensic scientist, as well as photographs, maps and a disk of a record of interview of the defendant.
No statement by Ms Collier or Ms Slater was tendered. However, a statement by Senior Constable Holmes was tendered by consent. Senior Constable Holmes said that he spoke to Ms Collier on the morning of 13 November 2012 and she told him that the car battery, petrol can and toolbox which she identified belonged to her and had been stolen. Senior Constable Holmes said that he spoke to Ms Slater on the morning of 13 November 2012 and she told him that her battery had been stolen from her utility parked out the front of her house at Whinnerah Avenue.
The defendant did not give or adduce any evidence.
The Magistrate’s reasons
The Magistrate delivered an ex tempore judgment. The Magistrate observed that the prosecution case was entirely circumstantial. The Magistrate observed that the offences took place within a relatively concise area over a relatively short time frame. The Magistrate summarised the prosecution evidence.
The Magistrate then said:
I remind myself the prosecution must prove the accused’s guilt beyond reasonable doubt. I am acutely aware of this particularly in a case where the prosecution case is entirely circumstantial and I am aware there may be a rational and reasonable explanation for the presence of certain items containing the accused’s DNA at various sites and the conclusions which may be drawn from that. The defence does not impugn the evidence concerning the existence of the accused’s DNA but submits all of the items containing the DNA are portable objects and therefore capable of being placed or distributed without any intervention from the defendant. I accept the presence of these items does not necessarily mean the items were deposited there by the accused. There may be other reasonable explanations for the presence of these items and so I should be cautious in reaching any conclusion of guilt beyond reasonable doubt based upon the presence of these articles and I direct myself accordingly.
The accused’s DNA was found at four sites and the DNA, on the prosecution case, connects the accused to all of the charges. I understand the prosecution case is circumstantial and I accept the items on which DNA were found are all portable. I would be cautious about such evidence if there was one instance only of an item containing the defendant’s DNA but Mr Lee’s DNA was found at several sites. There was DNA on the glove in Mr Theile’s car and there were numerous items taken from several addresses which were found in Mr Theile’s car. There was DNA found on the knife and screwdriver found in the grounds of Mr Mill’s house and at the address a locked cabinet had been broken into and a firearm taken. There was DNA found on a pullover found at Mr Newchurch’s house and his property was broken into and several items were stolen. Mr Dare’s car was interfered with and DNA was found in a cigarette butt in the car.
In my assessment all of this is too much of a coincidence for the DNA evidence to be explained away on the basis the items were all portable and may have been placed there by others or innocently found themselves at these sites. I am satisfied there is no rational hypothesis or reasonable possibility consistent with the accused’s innocence and I am satisfied beyond reasonable doubt that any hypotheses consistent with innocence does not exist.
Enter residence: count 14
It is convenient to address the grounds of appeal in reverse order.
The defendant contends that Mr Mills’ shed was not proved to be a place of residence within the meaning of section 170A of the Criminal Law Consolidation Act 1935 (SA) (the Act).
This point was evidently not argued before the Magistrate. However, the respondent does not contend that any prejudice was suffered as a result or that any other evidence would have been adduced relevant to the question. I therefore address this ground on its merits.
Section 170A provides:
170A—Criminal trespass—places of residence
(1) A person who trespasses in a place of residence is guilty of an offence if another person is lawfully present in the place and the person knows of the other's presence or is reckless about whether anyone is in the place.[8]
(2) In this section—
place of residence means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence.
[8] (Penalty omitted)
Mr Mills in his statement did not say that his shed was used as a place of residence. Photographs of the inside of the shed were tendered. They do not show bedroom furniture or indeed any other furniture in a configuration that suggests that the shed was being used as a place of residence.
This ground of appeal is made out. Count 14 must be dismissed.
Hearsay evidence of theft: counts 6-8, 12-13
The defendant contends that, in the absence of evidence from Ms Collier and Ms Slater that the items alleged to have been stolen belonged to them and were taken without their consent, there was no proof that the items were taken without the owner’s consent as required by section 134 of the Act, nor proof that the vehicles from which the batteries were taken were interfered with without the owner’s consent as required by section 86A of the Act, nor proof that the person who entered the property said to have been occupied by Ms Collier did so without lawful excuse as required by section 17 of the Summary Offences Act 1953 (SA).
This point was evidently not argued before the Magistrate. It is obvious that the respondent could have adduced evidence from Ms Collier and Ms Slater if the point had been taken at trial.
As noted above, a statement by Senior Constable Holmes was tendered without objection by the defendant. That statement contains hearsay evidence by Senior Constable Holmes that he spoke to Ms Collier on the morning of 13 November 2012 and she told him that the car battery, petrol can and toolbox which she identified as belonging to her had been stolen and that he spoke to Ms Slater on the morning of 13 November 2012 and she told him that her battery had been stolen from her utility parked out the front of her house at Whinnerah Avenue.
What Senior Constable Holmes was told by Ms Collier and Ms Slater was not relevant at trial other than as evidence of the truth of what Ms Collier and Ms Slater said. The issue at trial was identity. There was no suggestion at trial by the defendant that the existence of the offences, as opposed to the identity of the offender, was in issue. The Magistrate had power to admit hearsay evidence in respect of a matter not genuinely in dispute. In the circumstances, given the manner in which the defendant conducted the trial and in particular the failure to object to the obvious hearsay statements contained in Senior Constable Holmes’ witness statement and the fact that the existence of the offences was not in dispute, the hearsay evidence contained in Senior Constable Holmes’ witness statement was rightly admitted.
This ground of appeal fails.
Intention to make serious encroachment: counts 3, 8, 11 and 13
The defendant contends that, in the case of Mr Roach’s and Ms Collier’s jerry cans, Ms Collier’s and Ms Slater’s car batteries, Ms Collier’s toolbox and Ms Green’s pram, there was insufficient proof that the defendant intended to deprive the owner permanently of the property or make a serious encroachment on the owner’s proprietary rights as required by section 134 of the Act.
This point was apparently not argued before the Magistrate. However, the respondent does not contend that any prejudice was suffered as a result or that any other evidence would have been adduced relevant to the question whether the requisite mental element was established. I therefore address this ground on its merits.
Section 134(1) and (2) provide:
134—Theft (and receiving)
(1)A person is guilty of theft if the person deals with property—
(a)dishonestly; and
(b)without the owner's consent; and
(c)intending—
(i)to deprive the owner permanently of the property; or
(ii)to make a serious encroachment on the owner's proprietary rights.[9]
(2)A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a)to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b)to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i)that the owner will not get it back; or
(ii)that, when the owner gets it back, its value will be substantially impaired.
[9] (Penalty omitted)
It is evident from the circumstances in which the two car batteries, the two jerry cans and the pram were found that they were taken by the offender for temporary use or, at least, it could not be proved beyond reasonable doubt that they were taken for permanent use. In particular, it appears that the pram was or may have been taken as a means of conveyance of one of the batteries, the batteries were or may have been taken because the Holden utility battery was flat and power was needed for jump starting and the jerry cans were taken because the Holden utility needed petrol. In these circumstances, the first alternative of an intention to deprive the owner permanently of his or her property was not proved beyond reasonable doubt in respect of these items.
The toolbox was different in that it was found in the back of the utility and was not evidently required for temporary purposes. However, it is not necessary to reach a final conclusion on whether the first alternative of an intention to deprive the owner permanently of her property was proved beyond reasonable doubt in respect of the toolbox.
The definition in section 134(2) of the Act of intending to make a serious encroachment on the owner’s proprietary rights includes dealing with the property in a way that creates a substantial risk (of which the person is aware) that the owner will not get it back. The offender took Ms Slater’s batter, the jerry cans, the toolbox and the pram from the owners’ premises or immediately outside the owners’ premises and left them inside a different house property. There was objectively a substantial risk that the owners would not get them back simply because they would not find them. The offender knew the same objective facts and the inference is open and should be drawn that the offender knew that there was a substantial risk that the owners would not get their items back because they would not find them. Ms Collier’s battery was left outside her neighbours house, where it was likely to be found by Ms Collier soon after it was discovered missing. While there was a risk someone else might steal it before Ms Collier found it, that risk would not be characterised as substantial. This does not vitiate the conviction on count 8 because the battery was only one of three items particularised as subject of the theft.
This ground of appeal fails.
Identity of the offender: all counts
The defendant contends that it was not proved beyond reasonable doubt that he was the offender.
In relation to the Dare offences, the defendant accepts that it was proved beyond reasonable doubt that his DNA was on the cigarette butt found in Mr Dare’s Mercedes. However, he contends that it is reasonably possible that the cigarette had been placed there by someone else who did not leave his or her DNA on it. Alternatively, it is reasonably possible that the defendant was present in the car shortly before it was found by police on 20 November but had not taken it illegally and was not aware that it was being illegally used.
I reject the defendant’s first argument. Cigarettes are relatively personal items used over a short time frame. It is not a reasonable possibility that the cigarette was smoked by the defendant elsewhere and placed by someone else, who did not leave his or her DNA on it, in Mr Dare’s Mercedes. I defer consideration of the defendant’s second argument for the time being.
In relation to the Mills offences, the defendant accepts that it was proved beyond reasonable doubt that his DNA was found on the knife and screwdriver. However, he contends that it is a reasonable possibility that the knife and screwdriver were not used by the offender. Alternatively, he contends that it is a reasonably possibility that the knife and screwdriver were placed there by an offender who did not leave his DNA on them.
I reject the defendant’s first argument. The knife and screwdriver were tools of obvious utility for breaking into a shed and accessing its contents. They were found close to the shed and the proximity in time and place gives rise to the inference, which should be drawn, that they were placed there by the offender. I defer consideration of the defendant’s second argument for the time being.
In relation to the Newchurch offences, the defendant accepts that it was proved beyond doubt that his DNA was found on the hooded top and Bic lighter found outside the back door in Mr Newchurch’s backyard. However, he argues that it is a reasonable possibility that it was not the offender who left the hooded top and Bic lighter in the rear yard. Alternatively, he argues that, because there was at least one other person’s DNA on the hooded top and at least two other persons’ DNA on the lighter, it is a reasonable possibility that one or other of those persons was the offender or that the offender left the hooded top and lighter there but did not leave DNA on them.
I reject the defendant’s first argument. The offender travelled throughout the house and the inference is open, and should be drawn, that the offender left his or her hooded top outside the back door. I defer consideration of the defendant’s second argument for the time being.
In relation to the Thiele offence, the defendant accepts that it was his DNA on the black motocross glove found inside Mr Thiele’s Holden utility at the Thomas Street house. However, the defendant contends that it is a reasonable possibility that the glove was put in the utility by the other person who contributed DNA to the glove or by a third person.
In relation to the remaining offences, namely the Roach, Collier, Green and Slater offences, the defendant contends that it is a reasonable possibility that the glove had been put in the Holden utility by the person who took it from Willunga but that person had no involvement in the offences committed in the vicinity of Thomas Street at Aldinga Beach.
The Police relied at trial, and rely on appeal, on what they contend is the combined weight of the defendant’s DNA being found on the implements outside Mr Mills’ shed, the hooded top found outside Mr Newchurch’s back door and the motocross glove found inside Mr Thiele’s utility, the offences in question having been committed over a short time span of five or six days and within a concise geographical area at Aldinga Beach.
In R v Armstrong,[10] five housebreaks or attempted housebreaks with intent to steal were committed over six months in the Adelaide Hills, ranging from Teringie via Summertown to Montecute. The issue at trial was identity. The Crown case on identity was circumstantial. Armstrong was seen in the vicinity of two of the houses at about the time of the offences (counts 2 and 6) and his car was seen in the vicinity of two of the other houses at about the time of those offences (counts 3 and 5). Armstrong’s car was stopped by police two hours after the commission of the last offence (count 7) and a microwave oven belonging to the house owner was found in the boot. Armstrong was convicted by the jury of four of the five counts and appealed on the ground, inter alia, that the trial judge erred in refusing to order separate trials because the evidence in relation to one offence was not cross admissible in relation to another. The Court of Criminal Appeal dismissed the appeal, holding that the evidence was cross admissible as similar fact evidence to prove that it was not a coincidence that Armstrong was in the vicinity when each offence was committed. Cox J (with whom King CJ and Duggan J agreed) said:
There were five breakings in the area, which was a considerable distance from the appellant’s home, and the appellant or his car, or both, were nearby about the time each crime was committed. The force of the case lay in the improbability, it was said, of anyone finding himself in that position on five such occasions through mere coincidence…
The question for the trial judge was to decide whether the prosecution evidence, if accepted, proved the appellant’s complicity in the offences – whether his being there about the time the breakings occurred could not reasonably be explained by mere coincidence but only by his criminal involvement… As I have said, the probative force of the similar fact evidence will not necessarily be conditional upon a striking similarity between the established and postulated facts in question… In every case the force of the evidence is to be judged according to common sense and experience, and it must clearly transcend the merely prejudicial effect of the propensity aspect of the evidence...
In the case of each count on the information, the evidence relating to the other breakings provided strong circumstantial evidence of the appellant’s complicity in the offence in question. There was no rational view of the similar fact evidence that was inconsistent with the guilt of the appellant.[11]
[10] (1990) 54 SASR 207.
[11] At 214, 219-217 and 218.
The case against the defendant in relation to Mills offences was strong in itself because implements useful for housebreaking were found just outside the shed into which the offender had broken and those implements contained the defendant’s DNA. It was open to the Magistrate to be satisfied beyond reasonable doubt that the defendant was the offender in relation to the Mills offences without regard to the evidence in relation to the other offences.
If the Newchurch and Thiele offences had been isolated offences standing alone, the fact that someone else’s DNA was found on the hooded top and cigarette lighter and motocross glove respectively may have given rise to a reasonable doubt whether the defendant was the offender. However, when the Newchurch, Thiele and Mills offences are considered together, it becomes extremely unlikely that the defendant’s DNA happened to be present at the scene of each crime merely by coincidence consistently with an innocent explanation. The Magistrate was entitled, when considering whether it was proved beyond reasonable doubt that the defendant was the offender in relation to the Newchurch offences, to have regard to the fact that the defendant’s DNA was found at the scene of the crime in relation to each of the Thiele and Mills offences. The same applies to the Magistrate’s consideration in relation to the Thiele offences.
It was open to the Magistrate to be satisfied beyond reasonable doubt that the defendant was the offender in relation to each of the Mills, Newchurch, Thiele offences.
Having reached that conclusion, it was open to the Magistrate to be satisfied beyond reasonable doubt that the defendant was the offender in relation to each of the Roach, Collier, Green and Slater offences; in other words, that the person who took Mr Thiele’s utility during the night was the same person who took the batteries, petrol can, jerry can, toolbox and pram from the neighbouring streets and put them in or used them for the utility on the same night.
If the Dare offences had been isolated offences standing alone, the mere fact that the defendant’s DNA was found on the cigarette butt found in Mr Dare’s Mercedes may have been consistent with a reasonable doubt that the defendant was the person who took the Mercedes or the items in it that were missing when it was found by the police. However, when the Thiele, Newchurch, and Mills offences are considered together with the Dare offences, it becomes extremely unlikely that the defendant’s DNA was present on a cigarette butt consistently with an innocent explanation. The Magistrate was entitled, when considering whether it was proved beyond reasonable doubt that the defendant was the offender in relation to the Dare offences, to have regard to the fact that the defendant’s DNA was found at the scene of the crime in relation to each of the Thiele, Newchurch and Mills offences. It was open to the Magistrate to be satisfied beyond reasonable doubt that the defendant was the offender in relation to each of the Dare offences.
Conclusion
I allow the appeal in respect of count 14. I set aside the defendant’s conviction on count 14 and substitute a judgment of acquittal. I otherwise dismiss the appeal. I will hear the parties as to consequential orders.
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