Miller v Be

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Miller v BE
Citation:	[2017] ACTMC 12
Hearing Date(s):	8 November 2016, 1 February 2017
DecisionDate:	23 June 2017
Before:	Magistrate Campbell
Decision:	See [104] – [111]
Catchwords:	CRIMINAL LAW – burglary – contravene domestic violence order – contravene family violence order - act endangering health - tendency and coincidence evidence – DNA evidence – circumstantial evidence
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 65, 97, 98, 101 Domestic Violence and Protection Orders Act 2008 (ACT) Magistrates Court Act1930 (ACT) Crimes Act 1900 (NSW)
Cases Cited:	Fitzgerald v The Queen (2014) 88 ALJR 779 R v Baden-Clay [2016] HCA 25 R v DM [2016] ACTSC 179 R v King (No 2) [2016] ACTSC 121 R v Lam [2014] ACTSC 49 R v QI [2016] ACTSC 21
Parties:	ACT Director of Public Prosecutions (Prosecution) Daniel Miller (Informant) BE (Defendant)
Representation:	Mr D Swan (Prosecution) Mr P Edmonds (Defendant)
File Number(s):	CC 2559 of 2015 CC 2560 of 2015 CC 2561 of 2015

MAGISTRATE CAMPBELL:

BE (the defendant) has pleaded not guilty to three charges all of which relate to events dating back to 27 August 2013. The charges are:

1.that he on 27 August 2013 entered a building in Charnwood as a trespasser with the intent to commit an offence that involved causing harm (the harm in this charge relates to the facts relevant to the act endangering life charge although from the evidence before me a finding of an alternative intent namely “to commit theft of any property in the building” would be equally appropriate) to anyone in the building (Burglary)
2.that he on 27 August 2013 placed a corrosive substance in circumstances dangerous to the physical well-being of another person namely KB (Act endangering health); and
3.that he being subject to a protection order under the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT) who had been personally served with a copy of the order did on 27 August 2013 contravene the order (Contravene protection order).

The primary issue in dispute is whether the defendant was the trespasser on 27 August 2013. The complainant in relation to all charges is KB. The fault and physical elements of each of the offences have been set out by the prosecution in paragraphs 5-16 of its detailed written submissions prepared by Mr Swan and dated 24 February 2017. I adopt the DPP’s formulation and discussion in those paragraphs with the appropriate amendments in relation to the act endangering health charge set out in the written submissions in reply at paragraph 26.

There were significant delays between the date of the offences and their first mention in court on 17 April 2015 (in particular the police experienced some difficulty in locating the defendant and then in obtaining a DNA sample from him for comparison with items found at the scene), and also from that date to the last day of the hearing before me on 1 February 2017. Originally the matters were listed for hearing on 4 February 2016 but on that date the hearing was vacated. I infer this was because the DPP lodged an application to adduce tendency and coincidence evidence on 25 January 2016 and that the defendant sought an adjournment of the hearing on the basis that there was too little time for his then legal representative to consider the application. In any event the matter was re‑listed for hearing on 8 August 2016.

In the meantime the DPP brought an application under s 318 of the Magistrates Court Act1930 (ACT) to enable the evidence of crime scene investigator Lee Sloan to be taken early on 27 July 2016. On that occasion Mr Edmonds, who had only recently been instructed by the defendant, indicated that Mr Sloan was no longer required for cross examination and that his statement and attached photographs could be tendered by consent at the hearing. They became exhibit 2.

I took the opportunity to raise with the parties the DPP’s application to adduce tendency and coincidence evidence relating to what I refer to as the Yass Incident, and how they thought it might progress. It was accepted that the application, and my decision in relation to it, might take some time and it was agreed that only the application would be able to proceed on 8 August 2016.

The tendency and coincidence application relating to the Yass Incident

The application sought orders that the DPP be permitted to adduce evidence of the Yass Incident, for both tendency and coincidence reasoning purposes, as part of the prosecution’s circumstantial evidence case against the defendant. My rulings on the application, and a related determination concerning the admissibility of certain evidence of LN, both in that application and in the actual hearing itself, were published to the parties on 27 September 2016. I ruled the evidence of the Yass Incident was admissible for tendency but not coincidence reasoning purposes and that LN’s evidence was not admissible.

My conclusion was that evidence in relation to the Yass Incident was relevant to establish the defendant had the following tendencies:

·to be jealous of KB’s new relationship with NX;
·to be angry with KB for leaving the relationship;
·to engage in covert surveillance of KB; and
·to sabotage by deception the relationship between KB and NX.

Background

By way of background I note that the defendant and KB were married and living together in NSW in the first half of 2013. They separated in 2013. The conduct engaged in by the defendant in the Yass Incident occurred between 3 and 22 June 2013, although it appears that the defendant actually started accessing and tracking his wife’s phone and her calls from early March 2013.

The details of the Yass Incident are contained in the NSW police statement of facts used at the defendant’s sentencing hearing. A summary of it, adopted from the DPP’s written submissions (at para 26) is as follows:
·The defendant and KB had been in a relationship for approximately 8 years when she advised him on 17 June 2013 that the marriage and was over and she intended to move out of the home;
·Unbeknownst to KB the defendant had secretly installed an application named ‘Cerberus’ on her mobile phone. This application allowed him to operate functions of KB’s phone via SMS commands or remotely with a computer send commands to the phone;

·Between 17 and 22 June 2013 KB noticed a number of unauthorised processes occurring on her phone. During this time the defendant used the ‘Cerberus’ application to send messages to her new partner, NX, purporting to be KB. These messages included the following:

I showed my husband last night, now you are causing me marriage problems. TBH (to be honest) they are getting too creepy, I told you I’m married, please don’t EVER contact me again, or we will make a harassment charge. DO NOT REPLY (18 June 2013)
stop texting me. Stay the hell away from me OMG (20 June 2013)

·On 20 June 2013 the defendant used ‘Cerberus’ to monitor a conversation between KB and NX before the defendant interrupted, addressing NX, saying “stay away from [KB], we are married and we are trying to get marriage counselling. She’s nuts and we are trying to work through it”;
·Subsequent forensic analysis of the defendant’s computer confirmed he had been accessing the ‘Cerberus’ website. The defendant had sent 695 Cerberus commands externally from him computer to KB’s mobile phone between 3 March 2013 and 22 June 2013. These included starting a track of the location of her phone, accessing KB’s SMS log and her phone call log. The majority of the commands were sent between 16 June and 22 June 2013, after KB had left the defendant.

·The defendant was subsequently convicted in the Yass Local Court in June 2014 to a charge of ‘unauthorised impairment of electronic communication’ per s 308E(1) of the Crimes Act 1900 (NSW).

I infer from the extended version of the facts of the Yass Incident (repeated in Annexure A) that the defendant had some skill in managing information technology –

The extent to which the accused used the Cerberus application and his knowledge of its functionality to stalk the victim is further highlighted in evidence found on his laptop computer and a USB drive seized by police. This includes a file on the accused’s computer which had contained saved GPS plot coordinates of the prior locations of the victim’s phone.

On 2 July 2013 KB sought an interim domestic violence order against her husband in NSW. That order was granted and registered in the ACT on the same date. The effect of this registration is that the order was enforceable in the ACT as if it were a final order of this Court that had been personally served on the defendant. ‘Standard conditions’ of the order included prohibitions on the defendant harassing the protected person (KB) or engaging in any other conduct that intimidated her. There was an additional condition that ‘the defendant must not go within 100 metres of the premises at which the protected person may from time to time reside or work’.

On 13 August 2013 KB moved into the townhouse in Charnwood with her new partner NX. Ultimately the couple had a daughter together although they later separated.

On 27 August 2013 KB left her new residence in Charnwood to go to work. NX had already left. She had cleaned the house at the weekend and left it that morning in a locked and secure state. On her return home KB found:

·the bed in a messy state,
·a pair of pink women’s underpants in the bed (which led her to believe there had been another female in her bed),
·a small section of a condom wrapper on the floor next to the bed ‘as if it had been dropped’,
·a piece of women’s sanitary pad wrapper on the toilet floor,
·a number of items belonging to her had been stolen,
·the garage door was unlocked, and
·a window was broken.

On 28 August 2013 KB took a shower and found a ‘corrosive substance’ in her hair conditioner which was not in it the day before when she had used it.

In June 2014 the defendant was convicted in the Yass Local Court of an offence that between 3 June 2013 and 22 June 2013 at Yass ‘he did cause an unauthorised impairment of electronic communication to a computer, a Samsung Galaxy S3 smart phone ... belonging to [KB] knowing that the impairment was unauthorised intending to impair the said electronic communication’ contrary to s 308E (1) of the Crimes Act 1900 (NSW). The relevant court documents were tendered as exhibits 6, 7 and 8 in the hearing before me.

Over a year after the burglaries on 3 September 2014 the defendant underwent a buccal swab. His DNA was found to be on the pink underpants found by KB in her bed on 27 August 2013.

The ruling on tendency and coincidence evidence

Some selected passages from my decision are set out below:

Tendency and coincidence evidence are species of circumstantial evidence. Both sorts of reasoning rely on the simple generalisation that individual human behaviour often occurs in patterns. The provisions in the Evidence Act dealing with the admissibility of these sorts of evidence are contained in Part 3.6 particularly ss 97 and 98. Part 3.6 does not regulate whether the evidence is admissible but rather when such evidence can be used to support tendency or coincidence reasoning. The sections deal with the circumstances in which a court can make use of other acts of misconduct by a defendant to enable it to adopt the line of reasoning that because of that conduct in the past a defendant is more likely to have committed the offences with which he is charged.
…

Proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. The point of s 97 is that evidence of a particular state of mind or a tendency to act in a particular way, once the pre-conditions summarised by Refshauge J in R v Lam [2014] ACTSC 49 at [40] have been met, is admissible to provide the foundation for, or part of the reasoning process towards, an inference that the person committed the offence(s) charged. Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings.
The particulars of the acts and state of mind sought to be proved by the prosecution by presenting evidence of the Yass Incident are:
That the defendant had a tendency to act in a particular way namely:
· to engage in covert surveillance of KB; and
· to sabotage by deception the relationship between KB and NX.

That the defendant had a tendency to have a particular state of mind namely:
· to be jealous of KB’s new relationship with NX; and
· to be angry with KB for leaving the relationship.

The fact in issue in these proceedings is whether it was the defendant who entered KB’s residence and engaged in the conduct the intruder clearly undertook once inside. The prosecution seek to rely on evidence of the Yass Incident to show that while there is no direct evidence that the defendant is the offender in the current matters a process of tendency reasoning will allow the court to draw an inference that it was he who entered KB’s townhouse because, only two months before, he had shown a tendency to engage in deceptive conduct designed to undermine the relationship between his wife and her new partner and that he was motivated to do so by jealousy and/or anger. I am satisfied that the question whether the defendant had a tendency as alleged by the prosecution is relevant to the fact in issue in relation to the current proceedings.
…
I am satisfied that the evidence of the Yass Incident could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent. Ordinary human experience tells us that the tendency of a person in a relationship, or often after it has been ended by the other party, to be suspicious or jealous is not uncommon. The claimed tendency here goes beyond those things which are commonplace and is what gives the evidence the requisite significant probative value for the purposes of s 97.

The hearing on 8 November 2016 and 1 February 2017

At the outset I am reminded that there are directions that I must give myself which relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with. These have recently been articulated by Penfold J in R v DM [2016] ACTSC 179 (paras 7-11) and are (with appropriate modifications):

I direct myself that the prosecution has brought these charges and the prosecution bears the burden of proving them. Guilt must be proven. The defendant does not have to prove innocence. The presumption of innocence means that the defendant does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt.
To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offences charged beyond reasonable doubt. It is not enough for the prosecution to persuade me that the defendant is probably guilty or even that he is very likely guilty.
If the defendant offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.

At the beginning of the hearing I was asked to determine whether certain previous representations made by NX, the former partner of KB, could be tendered in his absence pursuant to s 65 of the Evidence Act. I ruled that the evidence could not be tendered as the information before me in relation to the steps taken by the police to find NX did not satisfy me that he was ‘not available to give evidence’ within the terms of that section.

The prosecution called the following witnesses:
·   KB
·   Senior Constable Daniel Miller
·   Forensic biologist Carol-Ann Schenk
·   Dr Naomi Speers

KB gave evidence via an audio visual link from a remote witness room as is the usual practice in matters such as this. I draw no adverse inference against the defendant by reason of the fact that KB gave her evidence in this way.

KB and the defendant married in 2007 after knowing each other for approximately three years. They separated on 18 June 2013. KB had not been happy for a long time. In evidence that was unchallenged, in her 23 January 2014 statement at paragraph [4] she said of the defendant:

He was emotionally abusive and controlling towards me. He tried to cut me off from my friends and family, I slowly had less and less contact with my friends and family over the period of my relationship with BE causing me to feel reliant on BE.

KB expanded on what occurred around June 2013 when the parties separated and referred to the defendant’s feigned (as I find it to be, bearing in mind the conduct he had previously been engaging in) surprise at her terminating their relationship. She discussed the circumstances of the defendant interfering with her phone and that when she ultimately confronted him and told him she would go to his work ‘and cause the biggest scene ever’ he admitted that ‘[h]e was pretending to be NX, he’d put something on my phone, and he’d blocked NX’s number from my phone (transcript of proceedings, 8 November 2016 (T1) p. 42).

In early August 2013 she and NX moved to the townhouse in Charnwood. She had not publicised the new address as she did not want the defendant to be able to find her. NX was aware of her concerns about not being located as were some of their respective close family members.

On the morning of 27 August 2013 KB left for work as usual just after 7.00 am. NX had already left the house for his job at the airport. He usually left at 6.00 or 6.30 am. All four doors through which entry could be gained to the townhouse were locked.

KB arrived home around 5:30 pm. She walked past the main bedroom and noticed that the bed she and NX shared had been ‘roughly made’ and that the doona was now pulled up. When she had left in the morning the bed had not been made rather ‘the doona was half thrown back, as if [she had] just got out of [bed]’ (T1, p. 44).

KB continued walking through the house and noticed something on the floor of the toilet. She put her bag on the kitchen bench and returned to look again. She found a little corner of a sanitary pad wrapper on the toilet floor. She walked into the bedroom and noticed that under the bed on her partner’s side was a portion of a condom wrapper. She then pulled the doona back and found a pair of girl’s pink underpants which were scrunched up and tucked towards the foot of the bed in the doona. She had never seen the underpants before.

She said the sanitary pad wrapper was a different brand to the one she used and that she did not recall there being any condoms in the house let alone one of the brand of the wrapper which she found.

KB said her immediate thought on finding the items was that there had been another woman in the house and ‘that someone had had sex’. She called her partner to ask him whether he had been home during the day because no one else really knew where they lived and no one else had access to the house.

During the course of her phone call with NX she walked through the house and noticed that a laptop had been removed from the kitchen area. Some items were missing – jewellery, medication, a laptop, an external hard drive to a computer and a camera all of which belonged to her. Nothing belonging to NX had been taken.

She also noticed that there was glass on the floor in the spare room near a window. The fly screen, which was normally on the outside of the window, was inside placed behind the curtain. It appeared as if someone had damaged the window to gain access to the latch on the inside and then entered the townhouse through the window.

The back sliding door and the laundry doors were still locked as was the front door until KB unlocked it. However the internal access door to the garage was unlocked as was the garage roller door itself. I infer this is the way the intruder left the premises.

KB picked the underpants up by the top grey band with two fingers in a pinching motion. She did not touch any other part of the underpants. Nor did she see anyone else touch or move them before the police arrived and removed them from where she had placed them on the kitchen bench.

KB had purchased the bed, the sheets and the doona cover prior to moving into the townhouse. She washed all the bedding before making the bed with it, and the sheets and doona cover had then remained on the bed until 27 August 2013. It is clear that there had been no opportunity for the defendant to have had any contact with any of these items.

The next day, after the glass company had fixed the broken window so that KB felt safer being alone in the townhouse, she had a shower. She put conditioner on her hair. It was from a L’Oreal Elvive brand bottle. She had bought the hair conditioner a few days before and had used it once. She had no problems when using it on the first occasion. She described the sensation on her hands as she applied the conditioner as being ‘like if you’d had your hands in a cleaning product for an extended period of time’. She looked at her hands and they were coloured red. Further the conditioner ‘did not smell right’ - it smelt like ‘a bathroom cleaning product like a bleach’ (T1, p. 49-50). Fortunately she only put the conditioner on the ends of her hair and not her scalp.

As KB pointed out usually when you put conditioner on your hair it makes the hair feel really soft but her hair did not feel like that. It felt dry, wiry and rough as soon as she moved from under the shower spray. Her hair became brittle and it started falling out from that time on.

At the time of the incident her hair, which came down to about the mid chest area, was dyed blond and was therefore in a more fragile condition anyway. However it was not falling out in the way or volume it did after she used the conditioner. Indeed it kept gradually falling out to the extent that she ended up with an “unwanted shoulder bob” hairstyle because of the damage. Around Christmas time (that is within four months) she had hair extensions put in to conceal the loss of volume and length in her hair.

In cross examination KB confirmed that some dexamphetamine tablets which were prescribed for her ADHD had been removed during the burglary. She denied having used these herself, or with friends, as a recreational drug. She agreed she had ‘one or two’ friends who were recreational drug users (T1, p. 52).

She also agreed that after leaving the defendant on 18 June 2013 she returned, on no more than four occasions and always accompanied by the police, to the premises she and the defendant had shared to enable her to collect her belongings. It was not possible that any items belonging to the defendant could have ended up in the townhouse in Charnwood. It was also not possible that on the day of the burglary that she had come across or touched something – an item of property or clothing for example - that had belonged to the defendant. When she left she took no furnishings with her from their shared home. She did not think she had even taken her favourite pillow. It is clear that KB wanted a fresh start and did not want to have anything in her new home that belonged to or would remind her of the defendant.

KB raised with NX her immediate thought upon discovering the burglary that he was having an affair. He was upset with this allegation. She then discussed with him her suspicion that the intruder may actually have been the defendant. While she was not present when he did so, she understood that NX had rung the defendant later that evening, not from their townhouse but from his brother’s birthday celebrations somewhere else. He had confronted the defendant with KB’s suspicions (this information was adduced in cross examination of KB). It makes no sense for NX to make this call if he was the offender, particularly if it was part of a performance in which he was attempting to divert attention from himself. One would expect him to make the call in KB’s presence for it to have any effect in convincing her of his innocence.

It was put to KB that it was not in her statement to police dated 23 January 2014 that her hair was falling out after she applied the conditioner to it. Nor did the officer make a note of it when she spoke to him on 28 August 2013. She conceded that based on the officer’s notes either she did not tell him or he did not record her concern but she was pretty certain she would have told him. She did point out that in her statement the officer had recorded her as stating that ‘it felt like my hair was breaking or falling out’. KB said when she dried her hair after the first shower it started falling out and while sometimes that can occur quite normally, it had not occurred like that before. She was adamant, and I accept, that her hair falling out gradually in such quantities was traumatic for her.

My view when watching the hand movements adopted by the witness when giving her evidence and listening to her closely is that she was not embellishing or exaggerating the after effects of the use of the tainted conditioner on her hair. It is likely that the officer either did not ask sufficient questions of KB or was a poor record keeper. Indeed it is clear that it took some time for the full effects of the conditioner on her hair to become apparent. I do not think that KB was aware of the exact nature of the charges against the defendant (particularly the second one referring to a corrosive substance) or that she would have any reason to describe the after affects as being any worse than they actually were.

It appears that in the few months before the hearing NX and KB had some telephone contact and NX advised KB that he was not interested in coming to court to give evidence. That confirmed the evidence of the informant that on their first meeting NX ‘made it quite clear that he didn’t really like talking to police very much (T1, p. 73). I accept that after her first fleeting emotional reaction to the scene she was confronted with, KB did not believe NX had anything to do with the incident. I agree with her. I do not regard NX as a possible suspect notwithstanding his lack of interest in attending the court proceedings. There is no evidence that he and KB were having difficulties in their relationship or that he was involved with anyone else.

KB was a genuine, honest and credible witness doing her best to give an accurate account of what occurred. There is no basis for me to reject any of her evidence.

Senior Constable Daniel Miller

Senior Constable Miller described the meeting he had with KB and NX at their townhouse on 27 August 2013. He described how he understood access had been gained to the property, the items that had been stolen and the fact that from early on in his investigation he had determined that the defendant was a suspect. This was because of “the bizarre nature” of the burglary, combined with some background information about the Yass Incident. He saw the underpants on the kitchen bench. He did not see anyone else touch them prior to them being collected by the crime scene investigator.

He conducted a record of interview with the defendant some months later on 26 February 2014 (by this time he had been advised there was a strong male DNA profile on the underpants that did not match NX) and again some 18 months after the burglary on 2 March 2015 at which time the defendant’s DNA had been lawfully obtained by the AFP. The record of the first interview was tendered as exhibit 11.

On 28 August 2013 Senior Constable Miller spoke to KB. He reported that she told him:

[S]he’s washed her hair, used the bottle of conditioner that she had in the ensuite shower and felt a burning sensation on the scalp and her hands and she said it had made her hair feel all wiry and brittle and it had a funny smell and it looked – it was different in colour, it was a red colour and that’s not the colour it was when she had used it last. So I re-attended the address and seized the bottle of conditioner (T1, p. 76).

He said KB:

...seemed shocked, upset that she’d have to go and try and get her hair fixed and was concerned that, yes, it could be expensive and she could have issues with her hair and she was just, yes, was freaked out, I guess, was how I’d describe her (T1, p. 76).

During the cross-examination of the police officer I had the opportunity of looking at the conditioner bottle which had been tampered with. My observation was that it would be easy for the top of the bottle to be removed so that some other substance could be mixed in with the conditioner. Even if the bottle was new and therefore fairly full, it would be easy to squeeze out some of the original contents to make room for a caustic addition.

Senior Constable Miller did not recall KB advising him that some of her hair had fallen out nor did he remember being shown any hair that had fallen out. He did recall her commenting that it felt like it was breaking.

In a police record prepared by the officer and tendered by the defendant as exhibit 12 the officer recorded KB as saying:

[S]he then looked at it and the colour was pink instead of white. She stated it had a smell like a chemist and her hands turned red. She stated she washed it out with shampoo and felt dizzy afterwards and later had a headache.

While KB did not refer to being dizzy or having a headache in her oral evidence I have no reason to doubt that she told the officer that the substance in the conditioner had that effect on her.

The officer confirmed that no fingerprint evidence was obtained from the premises – the crime scene forensics investigator told him it appeared that the offender had been wearing gloves at the point of entry.

Forensic biologist Carol-Ann Schenk

Ms Schenk’s biology team at the AFP was responsible for the examination and analysis of the interior and exterior surfaces of the pink underpants found in KB’s bed. Her report dated 19 January 2015 was tendered as exhibit 14. She also gave sworn evidence and was subject to cross-examination. She explained what DNA is and what constitutes a DNA profile. She also explained in some detail how DNA can be transferred from one object or person to another either by direct contact (primary transfer) or indirect contact (secondary or even tertiary transfer). She also discussed the factors which can affect the quality of the transfer from one object or person to another.

Ms Schenk said that there were ‘good amounts’ of DNA on the underpants which could be extracted for analysis (transcript of proceedings, 1 February 2017 (T2, p. 15). She concluded that there were two individuals who contributed to the DNA sample one of whom had contributed a greater amount of DNA (the major contributor) than the other. She that she could not state what specific biological source (for example, blood, semen or skin cells) the DNA in the major profile came from but it was possible that the source was from the deposit of skin cells. She confirmed that the presence of a DNA profile on an item says nothing about the time frame or the circumstances under which the DNA was transferred to that item.

Without examining in detail the scientific method behind her findings the ultimate conclusion of Ms Schenk in relation to the mixed DNA profile from the underwear was:

BE cannot be excluded as the source of the major component. The evidence is at least 31 septillion times more likely (sic) if the major component of the observed DNA profile originated from BE than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian subpopulation.
In my opinion, this finding when considered in isolation from other information provides extremely strong support for the proposition that the major component of the DNA profile obtained came from BE.

As for the major contributor ‘it would be highly, highly unlikely to get a match from somebody else [other than the defendant] to the profile’ (T1, p. 100). She stated it (the defendant’s profile) is ‘a very good DNA profile with a very distinct major. All the alleles were well above our reportable thresholds... (T2, p. 19). The major is high and we can do our calculation confidently on the major component’s characteristics’ (T2, p. 22).

In relation to the possible secondary transfer of DNA onto an item of clothing, specifically underpants, and the presence of DNA from the person transferring the other’s DNA she stated:

[S]omething like underpants is probably a good place for the transfer of DNA because of the texture – you know, the nature of the fabric. It also depends on how long there was contact between the two people when they shook hands for example so how long that contact was will affect the amount of DNA transferred and also how long the contact with the underpants was. That would also have an impact on how much DNA was transferred but yes you would expect to see the other person’s DNA generally in equal or greater concentration but it is hard to be definitive about that (T2, p. 6).

In terms of the minor contributor ‘there was just insufficient information in the profile to actually make a call as to who that person might be’ (T2, p. 5). She reiterated her earlier evidence that while it may be possible in this instance for the minor contributor to have transferred the DNA of the defendant (onto the underpants) ‘you would also expect to see the minor contributor’s profile as well because if they are touching it you would expect that their DNA would also be transferred’ (T2, p. 5). That is she ‘would expect the person who has touched the object would leave the most DNA but there are some factors that do affect the transfer of DNA and they can be the nature of the surface that you are contacting, whether it is porous [or] non-porous’ (T2, p. 5).

Cross-examination of Ms Schenk, not surprisingly, saw her engaged in a discussion with Mr Edmonds in relation to the primary and secondary transfer of DNA and the length of time that a discernible amount of DNA can remain on an object after it has been deposited. Much of the discussion took place within the context of propositions or hypothetical scenarios and Ms Schenk’s responses of course often involved her also engaging in speculation. For example, Ms Schenk agreed that hypothetically if packing boxes were taken from one person’s home to another it would be possible for DNA deposited onto a box to be transferred onto another item in that second home via secondary transfer. In this instance she agreed that if KB touched a box which had previously been in the defendant’s home and then touched the underwear it could be possible that she transferred the defendant’s DNA from the box to the underpants, however she stated yet again that she would also expect to see the second person’s profile (that is KB’s) on the underpants (at T2, 1 February 2017 p 7).

When pressed again as to whether the profile of the major contributor was transferred to the underwear by the minor contributor Ms Schenk stated that she ‘wouldn’t say it was likely but there are those variables (the duration of the contact between the contributors and the duration of the contact KB then had with the underwear) to consider’ (T2, p. 6).

When asked in re-examination about the possibility of secondary transfer of the defendant’s DNA onto the underpants she re-iterated that she ‘would still have expected to see the other person who was the carrier, I guess, of the second person’s DNA onto the item. I would expect to see them also on the underwear’ (T2, p. 25).

This view of course is reinforced by her evidence that in terms of the amount of DNA deposited from primary, secondary and tertiary transfer ‘generally it will get weaker when you are talking about epithelial (the outer layer of the skin) cells’ (T2, p. 4).

I am not persuaded that the veracity or reliability of Ms Schenk’s conclusions are undermined in any way. I am satisfied that the defendant was the major contributor of the DNA found on the underpants. I also accept that for the defendant’s DNA to have found its way onto the underpants by way of secondary transfer from another, for example KB ‘you would also expect to see the minor contributor’s profile as well because if they are touching it you would expect that their DNA would also be transferred’ (T2, p. 5). Indeed as Ms Schenk stated she ‘would expect the person who has touched the object would leave the most DNA’ (T2, p. 6).

Dr Naomi Speers

Dr Speers is a forensic chemist employed by the Australian Federal Police. She has been the team leader of the chemical criminalistics team for over eight years. It was she who reviewed the examinations conducted, and the results obtained, by her colleague Ben Cabot on the L’Oreal hair conditioner bottle taken from KB’s home.

She endorsed Mr Cabot’s conclusions that:

a foreign liquid of high pH (between 13.5 – 14.0) was identified in the product; and
liquids with high pH are corrosive, and will cause burns on direct contact.

I asked Dr Speers whether ‘corrosive’ had a particular scientific meaning as when I thought of a substance being corrosive I thought that this meant if it was put on a sample of metal it would eat away at it.
She said:

That is what it means, yes. So a sample that is strongly acidic and so has a low pH like between zero and two could cause that to metal or other substances and also a product that’s highly basic like this one, so above 12.5 will also have that impact on metal and other substances (T2, p. 31).

She acknowledged the obvious point that the amount of the substance as well as the time it was in contact with skin would affect the harm that the corrosive substance could do to the skin.

Dr Speers said it was not possible to determine exactly what the foreign substance in the bottle was – ‘it’s a very difficult task to identify a complex mixture which this one was’. It was not bleach as bleach does not have a high pH. According to Dr Speers once the substance was added it would only take a day or so for the added substance to be absorbed into the conditioner in the bottle so that the contents of the entire bottle would have a pH of 13.5 to 14. She would expect the pH level of a typical bottle of hair conditioner to be in the range of between six and eight (that is on either side of seven which is the neutral figure). Because the reading of the blended substance (the bottle was shaken before testing) was so high she thought the substance must have been at the very high end of the range of corrosiveness (T2, p. 37)

While Dr Speers was asked some questions by Mr Edmonds about the accuracy of the testing undertaken (and the reliability of the pH strips used) I have no reason to doubt the accuracy of the results referred to by her.

Associate Professor Dr Vanita Parekh

A report of Associate Professor Dr Vanita Parekh dated 17 November 2016 was tendered as exhibit 3. Its contents were unchallenged. Dr Parekh provided an expert opinion in relation to the effects of an alkali substance with a pH of 13-14 being administered directly to the skin and hair. Much of what she said about the caustic nature of a substance with such a high pH was reinforced by Dr Speers in her oral evidence.

Dr Parekh reported that the strength of acids and alkalis are defined using the pH scale which ranges from 1 to 14. A very strong acid has a pH of 1 and a very strong alkali has a pH of 14. Dr Parekh stated that commonly available strong alkaline substances are used in drain cleaners (Draino is a commercial brand which readily springs to mind), oven cleaners, Clinitest tablets (which I understand are used to test the amount of glucose in a person’s urine and also on occasions by wine makers) and denture cleaners. These substances are all extremely corrosive and I infer, readily available to the general public.

According to Dr Parekh alkalis which cause significant injury generally do so at a pH above 11. She described the process as follows:

Following an exposure to an alkaline substance hydroxide ions penetrate tissue surfaces, producing a histological pattern of liquifactive necrosis. This process includes protein dissolution, collagen destruction, fat saponification, cell membrane emulsification, transmural thrombosis and cell death.
...
Strong alkaline substances may cause burns to the hair-bearing skin resulting in permanent scarring and hair loss/baldness. Strong alkaline substances are used on hair in the form of perming hair treatments to straighten hair or to make it curly. In the absence of other hair treatments strong alkalis may make the hair wiry and decrease its strength.

Her summary was (page 5):

Highly alkaline substances with a pH of between 13.5 and 14 have the potential to cause extremely serious injuries if not treated immediately. The injuries caused from topical skin administration of strong alkaline substances include deep burns and [exposure to the human eye can lead to] blindness.
The treatment for exposure to a strongly alkaline substance is to irrigate the skin with water in the affected areas immediately for a prolonged period of time to prevent extremely serious and potentially life-threatening injury, this action [by KB] ... averted potentially very serious consequences.

I am satisfied beyond reasonable doubt that whoever placed the foreign substance in the hair conditioner placed that highly corrosive substance in the bottle in circumstances which were dangerous to the physical wellbeing of KB. There was a real risk of her suffering serious or significant burns to her hands, her face, her scalp or to her eyes.

The defendant’s evidence

The defendant did not call any oral evidence but tendered exhibits 12 (redacted records from the AFP PROMIS database from 28 August 2013) and exhibit 13 (Telstra phone records in relation to the defendant’s mobile phone activity on 27 August 2013). He also tendered, with the prosecution’s consent, a statutory declaration of Tony Griffiths dated 31 January 2017 together with an associated time sheet (exhibit 20).

The statutory declaration was as follows:

I, Tony Phillip Griffiths of 19 Petterd St Page ACT 2614, General Manager, Locata Corporation, make the following declaration under the Statutory Declarations Act 1959:
I hereby confirm that the leave records of Locata Corporation submitted to the court are true and correct and show BE to be present at work on 27^th August 2013 at our premises at 111 Canberra Ave Griffith ACT. While we can’t account for BE’s whereabouts with any certainty, it would be normal for BE to be in the workplace on that day between the hours of 8.00AM until 12:00AM (I infer this means midday) and then 1:00PM until 5:00PM. I can’t recall BE behaving any differently on that day and have no reason to believe that this was not a normal work day for BE.

During his record of interview with police on 26 February 2014 the defendant proffered the following information – ‘KB just up and left one day, ran off with some other dude. Um, she was on, um, drugs and that sort of stuff, and hanging around junkies... I didn’t have any warning at all, she just up and left’ (AFP record of interview, BE, 26 February 2014 (‘exhibit 11’), p 6, A 65). Later in the record of interview he referred to KB as having ‘a bit of an ice habit so it’s no surprise that she got burgled’ (Exhibit 11, p 9, A 95). He also said:

[I]t doesn’t surprise me that she got broken into or something but, um – given the company she keeps, but it certainly wasn’t me and, ah, I’m surprised she would even think it was me. It’s, ah, a bit absurd really, considering I have a full-time job and all that sort of stuff, that I would start burgling houses (Exhibit 11 p. 6 A66).

He said he had no idea where she was living, and assumed he ‘would have been at work that day (27 August 2013) or something’ (Exhibit 11 p 7, A 70-71).

Mr Edmonds conceded that the evidence relied on by the defendant would ‘not exclude the physical possibility that the defendant could have got from work to KB’s premises and back during lunchtime, for example’ on 27 August 2013 (T1, p. 32). I do not regard the evidence as being of any assistance in establishing that the defendant did not have an opportunity on the day in question to attend and break into the premises in Charnwood. Indeed, while the incident had occurred some time before the interview the defendant had been put on notice by NX on the very day of the burglary that he was believed to have been involved in it. In those circumstances one might expect that an “innocent man” once on notice would be minded to make a note of where he was that day in case the police later questioned him.

The defendant also relied on the fact that he made certain admissions to KB’s sister in relation to his involvement in the Yass Incident as supporting an inference that he would be unlikely to commit further offences only two months later ‘knowing that he would be a suspect’. I am not sure that someone acting out of emotions akin to anger, resentment or jealousy would necessarily always conduct themselves in a rational and thoughtful manner. I do not find this submission persuasive.

Circumstantial evidence

The prosecution case against the defendant is entirely circumstantial. There is no eye witness.

Penfold J in R v DM (op cit) outlined the nature of a circumstantial case and the directions a judicial officer should give to herself in relation to dealing with the evidence in such a case (paras 14 - 22):
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is directly capable of proving the guilt of the defendant.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence.
…
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence, but it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I must approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. I must not consider any particular fact in isolation and ask whether that fact proves [the defendant]’s guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with [the defendant]’s guilt.
The correct approach is, first, to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt.
I must then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that [the defendant] is guilty of the offences charged.
Her Honour continued:
A circumstantial case is to be considered by the fact-finder “holistically, not piecemeal”. In The Queen vHillier (2007) 228 CLR 618 (Hillier) at 637; [46] to [49], Gummow, Hayne and Crennan JJ, with whom Gleeson CJ at [1] agreed, said:
46. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

In The Queen v Baden-Clay [2016] HCA 35, French CJ, Kiefel, Bell, Keane and Gordon JJ expanded the above point from Hillier (at para 47):

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. Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal [original emphasis].

In the present case there are two pieces of very significant circumstantial evidence pointing to the defendant’s guilt.

The DNA

The strongest piece of evidence against the defendant is the DNA evidence. That it was the defendant’s DNA on the underpants found in KB’s bed is not in doubt. It cannot be in light of the strong expert evidence before me. There was no evidence that the defendant has an identical twin and, in practical terms based on the statistical evidence, the prospect that a randomly selected male would have the same DNA as the defendant is so remote that I reject it. I am satisfied beyond reasonable doubt that the major DNA profile on the underpants was that of the defendant.

Although this fact is an essential link in the chain of reasoning towards guilt it does not, of itself, establish guilt as was pointed out by the Chief Justice of the ACT Supreme Court in the recent decision of R v King (No 2) [2016] ACTSC 121 (‘King’, para 77).

Her Honour said:

In this case, the DNA evidence was the only evidence implicating the accused. Had there been any other evidence tending to implicate the accused which was not related to the DNA evidence, then I may have been satisfied of his guilt beyond reasonable doubt. However, I am not satisfied that guilt is the only available rational inference. There is, for example, a reasonable (albeit small) possibility that the burglar was someone else who was wearing unwashed underpants that had previously been worn by the accused.

King is a decision on the facts rather than a statement of legal principle by which I am bound. In any event there is other significant circumstantial evidence implicating the defendant in the commission of the offences at the address in Charnwood – most significantly the coincidence of his relationship with the parties who live at the address where the underpants were found, the cogent tendency evidence from the Yass Incident and the targeted nature of the intruder’s conduct aimed at KB.

Is there any explanation for the presence of the defendant’s DNA on the underpants other than because he had direct contact with them?

The only potential alternative explanation for the defendant’s DNA profile being on the underpants is via secondary transfer from KB after she had collected it from an unknown item (previously touched by the defendant) inside the townhouse. However on the evidence there was simply no opportunity for such a transfer of the defendant’s DNA onto the underpants by KB as an intermediary, to have taken place. – see DPP’s submissions at para. 58 for a summary of the relevant facts.

Even if this was a remote possibility on the evidence it would be unlikely that KB’s direct contact with the underpants transferred a ‘good amount’ of the defendant’s DNA, from that unknown source, such that he was able to be identified as the major contributor (see Fitzgerald v The Queen (2014) 88 ALJR 779) and yet she did not leave a sufficient amount of her own DNA for her profile to be identified. In this regard I note again the evidence of Ms Schenk that although various factors and variables can have an effect, she ‘would expect the person who has touched the object would leave the most DNA’ (T2, p. 5).

Further there is no evidence to suggest that any friends or acquaintances of KB’s had access to the townhouse, indeed the evidence suggests that she kept its location to herself and a few trusted members of family. There is nothing to support any inference that some mutual acquaintance, or indeed a stranger, could have acquired the underpants with the defendant’s DNA on them and then staged the scene at the townhouse for some unknown reason.

At the hearing continuity of the exhibit was not raised by the defence nor is there anything in the evidence before me to raise such a concern – so contamination by the AFP is not something to be considered.

I am satisfied beyond reasonable doubt that the only rational explanation for the defendant’s DNA being on the underpants was as a result of direct contact between him and that item of clothing and that it was he who placed the underpants in KB’s bed.

Motive / tendency to act in a particular way

The second significant piece of circumstantial evidence relates to the defendant’s state of mind and the inferences that I can draw from it. As Burns J stated in R v QI [2016] ACTSC 21 at para 25:

The fact that an accused has a motive to commit an offence is a circumstance which taken together with other evidence, may enable a jury to conclude that the accused is guilty of a charged offence...

There is admissible evidence of the defendant’s state of mind and how he conducted himself after the breakup with KB.

As I said in my earlier decision – what occurred in the Yass Incident demonstrated a level of jealousy of a quite extraordinary degree going beyond the normal reaction one might expect in a relationship breakdown. The defendant attempted to undermine or harm the relationship between his wife and her new partner and he engaged in conduct designed to achieve this by attempting to deceive the parties in relation to their understanding of the conduct of the other. This is what I found made his conduct distinctive and stand out from the ordinary human reaction of jealousy so often seen when one partner forms a new relationship. It is what gave the evidence of what occurred in the Yass Incident probative value in the current proceedings. It is relied on by the prosecution in this hearing to prove the identity of the offender.
The conduct engaged in by the intruder certainly appeared to be directed at KB – to her physical well being, her psychological state (raising concerns about her partner’s fidelity) and the items which were stolen belonged to her and included medication prescribed for her. It is consistent with the tendency demonstrated by the defendant in the Yass Incident and supports the inference that it was the defendant who also committed these later offences again in an attempt to undermine the relationship between his wife and NX.

As the prosecution states at paras 77- 80:

The clear motive unifying each of these acts is to make KB feel unsafe in the home she shared with NX. It is submitted that it is fanciful to suggest that someone committed these acts, given their nature, without harbouring an intention to that effect.

Such a motive is clearly consistent with the tendencies displayed by the defendant in relation to the Yass Incident...
The most striking aspect of the crime scene is what can only be described as a tableau of infidelity present in the bedroom. The presence of a condom wrapper, a sanitary pad wrapper, disturbed bed sheets and a foreign pair of ‘g-string’ style women’s underpants clearly conveys the impression that a man and a woman have had sex in that bedroom. Indeed, this was KB’s initial reaction prompting her to call NX and ask whether he had been home that day.
Both the condom wrapper and sanitary pad wrapper were left in plain sight on the floor such that they came to KB’s attention immediately when she passed the toilet and then came into the bedroom. The underpants ‘were scrunched up and tucked towards the foot of the bed in the doona’ and ‘come straightaway’ when she ripped off the doona.
It is clear that this scene was crafted by the defendant in the hope of terrorising KB. It accords directly with the tendency of the defendant to seek to sabotage KB’s relationship with NX; by either inducing her to believe he was having an affair or at the very least to make her feel unsafe in the home she shared with him.

As Senior Constable Miller noted during his evidence, it was clear from the early stages of this investigation that ‘the circumstances were quite bizarre and unusual, and certainly not the normal sort of burglary that [he] would attend’.

The evidence also establishes that ‘the accused has expert technical knowledge in the field of computers and mobile telephone devices’ (Annexure A, paragraph 5). This presumably is what enabled him to previously engage in covert surveillance of KB (for example when she was attending the Yass Police Station). The defendant’s ability to locate his wife on the earlier occasion lends support to an inference that he had the ability to engage in such conduct again and that he had the requisite skills to locate her home in Charnwood.

Is there an inference consistent with innocence reasonably open on the evidence?

I have considered all of the evidence as a whole. I have also considered whether there is any other reasonable conclusion arising from the facts (including the four hypotheses raised by Mr Edmonds in his written submissions) which is inconsistent with the guilt of the defendant. I have determined that there is no such conclusion.

Ultimately the predominance of the defendant’s DNA profile as the major contributor on the underpants, the location and the circumstances in which that item of clothing was found, the theft of electronic and other personal items belonging to KB, the evidence of the defendant’s tendency to engage in conduct which attempted to undermine the relationship between KB and her new partner and the absence of any other rational explanation for the presence of the underpants in KB’s bed are all items of circumstantial evidence which I accept and which combine to establish that the defendant was the intruder.

I am satisfied beyond reasonable doubt that it was the defendant who unlawfully entered the premises at a time when a court order was in place prohibiting him from doing so, who stole items belonging to his wife, who placed the underpants with his DNA on them in the bed and who also carefully staged the placement of the other items in the bathroom and on the bedside floor.

I am also satisfied that the complainant used the hair conditioner a day or so before 27 August 2013 without a problem and then used it the day after the burglary. The timing is such that it is highly improbable that two such incidents would happen at similar times, in the same location and for completely unrelated reasons. The irresistible inference is that the same person motivated by the same animus towards KB was the offender in each case.

I am satisfied beyond reasonable doubt that the defendant, being the intruder, also adulterated the hair conditioner.

Mr Edmonds argues that there is no evidence that the defendant placed a corrosive substance into the conditioner in circumstances indicating ‘an intent to endanger the health, safety or physical wellbeing of another person’. That is he submits that this fault element of this offence cannot be proven in the absence of any evidence as to what the actual substance was, in what quantity it was added to the conditioner or what the defendant’s knowledge was of the likely effect of the tampering.

I am satisfied however that the deliberate nature of the defendant’s conduct and the obvious preparation before he attended the premises makes it clear that he was not engaging in “a prank that went wrong”. His intention and deliberation behind it may be deduced from his actions, the surrounding circumstances and his conduct before and at the time of the tampering with the conditioner. His conduct was not spontaneous or on the spur of the moment. It was planned. He brought a number of items to the townhouse including, I infer, a highly caustic substance which experience tells me one does not come across accidentally. The tampering with the contents of the bottle of conditioner occurred so close to the other conduct as to permit me to draw the inference that the defendant had the same state of mind while engaging in all conduct that day. The irresistible inference is that the defendant knew of the considerably corrosive nature of the substance that he brought with him and that by deliberately placing it into a bottle of KB’s conditioner he knew that when she used her hands to apply the substance to her hair and scalp its application was dangerous to her physical wellbeing in the ways adverted to by the experts in their evidence.

I find each of the three offences proved beyond reasonable doubt.

I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Campbell.

Associate:

Date: 2 August 2017

Annexure A – Statement of facts (Yass Incident) – NSW Police

The accused, BE, and the victim, KB have been in a relationship for about eight years. They have been married since 2008 and have no children. The accused and victim have resided in Yass for about five years.

The victim informed the accused that their relationship was over on Monday the 17^th of June 2013, and that she was moving out of their home the following day. According to the victim, the couple had been having relationship difficulties for about two years and she had been trying to organise for her and the accused to attend counselling however the accused declined.

Upon hearing news of the victim wanting to break up and move out, the accused became upset and appeared shocked at the news. That night, the victim slept on the lounge in their lounge room. She plugged her mobile phone into a phone charger near her.

On Tuesday morning, the 18^th of June 2013 the victim picked up her phone and noticed that the front screen of her mobile phone no longer had a password screen and she could immediately access her phone without having to enter a password. The victim states that there was a password on the phone when she went to sleep the previous evening and that only she knew the password combination for the phone.

The victim is aware that the accused has expert technical knowledge in the field of computers and mobile telephone devices and although she believed the accused may have accessed her phone overnight and removed the password screen, she did not confront him about it at the time and went to work.

The victim did not return home that evening and on Wednesday the 19^th of June 2013, flew to Melbourne for work. From that day until Saturday the 22^nd of June 2013, the victim noticed numerous unauthorised processes occurring on her phone. These include the accused entering personal phone conversations that the victim was having with a friend.

It is also alleged that the accused used the victims [sic] mobile phone number purporting to be the victim and sending the messages to a personal contact of the victim’s.

Most of the unauthorised use of the victims [sic] phone and/or phone number have revolved around a male person that the victim has befriended over recent weeks. The victim believes that the accused is jealous of that friendship and believes she has cheated on the accused with the male person when they were still in a relationship. The victim denies that claim.

On Friday the 21^st of June 2013, the victim has confronted the accused about her belief that he had accessed her phone and was using her phone number without authorisation. It is alleged that the accused admitted to tampering with her phone and the accused sent the victim a text message at 3:52pm on Friday the 21^st of June 2013 which states “I was never stalking your phone, I blocked NX with the pc, put your SIM in mine and sent a message, then started sending from my Woolworths phone.”

About 9pm on Wednesday the 19^th of June 2013 the accused attended the victims [sic]sisters residence, CB. CB is a witness in this matter. The accused showed CB his laptop computer and a mobile telephone which contained private information from the victims phone, including sent and received text messaged and a register of incoming and outgoing phone calls. He also showed the witness an iPhone and informed her that he was receiving the victims [sic] messages on the phone as she was sending them.

About 8pm on Thursday the 20^th of June 2013 the victim was on the phone [to] her friend NX. The victim was talking on her mobile phone with NX’s mobile phone number. All of a sudden, the accused interrupted their conversation and started talking to NX, saying things like “Stay awayfrom KB, we are married and we are trying to get marriage counselling. She’s nuts and we are trying to work through it.” The victim states that she could hear all of this conversation between the accused and NX. The victim didn’t say anything and her phone then made an unusual sound and she terminated the call.

About 6:30pm on Saturday the 22^nd of June 2013 the victim and witness were at the Yass Police Station making [a] statement in relation to this matter. The accused attended the police station to enquire about the victim. Police spoke with the accused and complied with section 291 of the Law Enforcement (Powers & Responsibilities) Act 2002. The accused was arrested and cautioned. When the accused parked his vehicle at the police station, he parked next to the victim’s vehicle. The accused accessed the victim’s vehicle and for unknown reasons the alarm went off in the victim’s vehicle. Police asked the accused how he had found out the victim was at the police station and why he accessed her vehicle. The accused declined to answer either question.

The accused was afforded his custody rights. Police applied for and were granted a search warrant to attend the accuseds [sic] premises and search for items in relation to this matter. About 10:30pm Saturday the 22^nd of June 201 the police attended 38 Cobham Street in Yass and executed the search warrant. A number of computer items were seized during the warrant.

On the advice of a solicitor that the accused contact prior to the execution of the warrant, the accused declined to comment on the items or assist police with the items listed in the warrant that police were looking for.

Upon completion of the search warrant, the accused was returned to the Yass Police Station. Police searched the accused’s motor vehicle which was parked on the public road of Rossi Street. The search was conducted in the presence of the accused and the search was recorded on video. Police located a black Nokia phone and two memory cards in the centre console of the vehicle which were seized as exhibits. Police also seized a Samsung Galaxy mobile phone that was in the accuseds [sic] possession upon his arrest.

The victim has given her mobile phone to the police for further investigation. Police intended on conducting further investigation on the victims [sic] phone as well as on the items seized from the search warrant, vehicle search and the phone in the accused’s possession upon his arrest.

Investigating police have been in contact with an expert from the New South Wales Police Force State Electronic Evidence Branch. It is believed that there are two ways a person can intercept a mobile phone; to ‘clone’ the SIM card of the target phone, or install a hidden application onto the target phone, which allows remote monitoring via the internet.

As a result of the unauthorised access of the victims [sic] phone by the accused, the vicim feels intimidated and frightened. The victim did not give the accused permission to access or use her phone or phone number.

The accused declined to be interviewed in relation to the matter. The accused was finger printed and photographed. He was charged with the matter now before court.

Police had the items seized from the accused during the search warrant and upon his arrest [had] the victim’s mobile phone forensically examined by an expert at the State Electronic Evidence Branch, Special Services Group. Results of this examination include that there was a mobile phone application, “Cerberus” installed and running on the victim’s Samsung Galaxy S3 mobile phone. Cerberus is a type of tracking software has [sic] allows remote access to a mobile phone that [it] has been installed on. Cerberus has many functions including:

Start tracking: A blue dot will appear on Google Maps showing you the exact location of your phone. If you have a rooted device, you can have the GPS enable automatically each time for a more accurate reading.
Stop tracking: Self explanatory
Get device information: Displays the IP address, Wi-Fi SSID (if connected), phone number, SIM card number and provider.
Lock with code: Set a customized lock code that will appear each time someone tries to access the phone.
Unlock: Turn off the lock code.
Start alarm with message: Sets off a screeching alarm with a message of your choice.
Display message: Displays a message of your choosing without any sound.
Get call log: View the most recent calls made from your smart phone.
Get SMS log: View all of the latest text messages.
Call a phone: Select a number to call without the knowledge of the person who has your phone.
Record Audio: Record up to 300 seconds of behind-the-scenes audio and then download an mp4 to your computer.
Take Picture: Pin down the suspect by snapping a shot of his or her mug with the front-facing camera. It will pop up in your email inbox instantly.
Grab screenshot: For rooted phones only
Start & stop emergency mode: This will make your phone send regular updates on its location via email and SMS.
Hide or Show in App Drawer: Make Cerberus invisible to the naked eye.
Wipe device memory/Wipe SD card: Deletes all information on your phone

The victim did not install Cerberus onto her phone and did not give anyone else permission to install Cerberus on her phone. Cerberus was first connected on the victims [sic] phone on the 3^rd of March 2013. It appears the accused installed the Cerberus application onto the victims [sic] phone without her knowledge. The application was the hidden from the ‘application drawer’ of the phone, so that it was not visible to the victim. In other words, unless the victim knew how to see what applications were hidden on her phone and did so, she would not have otherwise known that Cerberus had been installed on her phone.

There are two main ways to interact with Cerberus. The first is to use Short Message Service (SMS) commands; a user is able to send an SMS command to the device running Cerberus and it will in turn respond to the request. The second method of interacting with Cerberus is remotely with a computer by logging into the Cerberus website and sending commands to the phone which has Cerberus installed on it.

Forensic analysis of the accused’s laptop computer confirmed that he was accessing the Cerberus website, using “gunpowder” as his username. The accused was also receiving emails from the Cerberus website to his personal email account. Police are able to confirm that the accused sent no less than six hundred and ninety five (695) Cerberus commands externally from a computer to the victims [sic] mobile phone between the 3^rd of March 2013 until the 22^nd of June 2013. These commands included hiding the installation of Cerberus from the victims [sic] application drawer on her phone, starting a ‘track’ of the location of the phone, ‘stopping’ a track of the location of the phone, accessing the victims [sic] SMS log and accessing the victims [sic] call long. A majority of the Cerberus commands sent to the victims [sic] phone are between 16/6/2013 and 22/6/2013, when the victim and accused’s relationship soured and which was after the victim told the accused that she was leaving him.

Analysis of the accused’s computer also confirmed that four SMS were sent from the computer using Cerberus. Three of these messages were sent to the victims [sic] friend NX. The victim has started a relationship with NX since ending her relationship with the accused. The nature of the text messages to NX show that the accused was using Cerberus purporting to be the victim and include a message sent on 18/6/2013: “I showed my husband last night, you are causing me marriage problems. TBH (to be honest) they are getting too creepy, I told you I’m married, please don’t EVER contact me again, or we will make a harassment charge. DO NOT REPLY” and a message sent on the 20/6/2013: “stop texting me. Stay the hell away from me OMG!”. The victim did not sent [sic] these messages and did not give anyone else permission to send the messages.

The extent to which the accused used the Cerberus application and his knowledge of its functionality to stalk the victim is further highlighted in evidence found on his laptop computer and a USB drive seized by police. This includes a file on the accused’s computer which had contained saved GPS plot coordinates of the prior locations of the victims [sic] phone. The USB drive contained a file titled ‘UHOH’ which contained text messages and call and SMS logs from the victims [sic] mobile phone. The saved text messages within the file only contain messages from the victims [sic] phone and NX’s phone.

The accused is to be charged at Yass Local Court on the 7^th of January 2014 for an offence under section 308E of the Crimes Act 1900 (NSW).

[2017] ACTMC 12

23 June 2017