Nasaris v The Queen
[2021] SASCA 143
•2 December 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NASARIS v THE QUEEN
[2021] SASCA 143
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
2 December 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Appeal against conviction.
The appellant and his co-accused were convicted by a jury of arson in contravention of s 85(1) of the Criminal Law Consolidation Act 1935 (SA).
On 22 May 2017, early in the morning, a fire was deliberately lit at the business premises of a pet supply business in the northern suburbs. The prosecution case was that the arson was committed by the appellant and co-accused in a joint criminal enterprise; that two people drove together in a vehicle to the business premises; that, on arrival, the passenger alighted, broke a window with a log splitter and threw in Molotov cocktails which started the fire; and that both left together in the same vehicle.
The main issue at trial was whether the appellant could be identified as one of the occupants of the vehicle and therefore a party to the joint criminal enterprise. The prosecution relied on three bodies of circumstantial evidence: first, CCTV footage of the vehicle which resembled a utility vehicle used by the appellant; secondly, cell tower evidence suggesting that on the night of the arson, the appellant’s mobile phone service and the co-accused’s mobile phone service were likely together and that the co-accused’s phone service travelled to the vicinity of the business premises at around the time of the arson; and thirdly, evidence of a DNA profile consistent with the appellant’s DNA on the log splitter.
The appellant disputed the probative value of that evidence at trial and appeals against his conviction on the ground that the verdict of the jury was unreasonable and unable to be supported by the evidence.
Held, per the Court, dismissing the appeal:
1. Considered in its totality, the prosecution case provided ample basis for the jury to have been satisfied beyond reasonable doubt that the appellant was one of the two occupants of the vehicle and, consequently, guilty of arson by reason of his participation in a joint criminal enterprise to commit arson.
Summary Offences Act 1953 (SA); Bail Act 1985 (SA); Criminal Procedure Act 1921 (SA) s 158(3); Criminal Law Consolidation Act 1935 (SA) s 85(1), referred to.
M v The Queen (1994) 181 CLR 487; Libke v R (2007) 230 CLR 559; R v Singh [2019] SASCFC 51; R v Tartaglia (2011) 110 SASR 378; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 268 CLR 123; Coughlan v The Queen [2020] HCA 15; Fennell v The Queen (2019) 93 ALJR 1219; Fitzgerald v The Queen [2014] HCA 28; R v Hillier (2007) 228 CLR 618; Shepherd v The Queen (1990) 170 CLR 573; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Barca v The Queen (1975) 133 CLR 82; SPC v The Queen [2020] SASCFC 43; R v Serratore (1999) 48 NSWLR 101, considered.
NASARIS v THE QUEEN
[2021] SASCA 143Court of Appeal – Criminal: Livesey P, Doyle and David JJA
THE COURT: The appellant, together with his co-accused Corey Harrison, was convicted by a jury of arson.[1]
[1] In contravention of s 85(1) of the Criminal Law Consolidation Act 1935 (SA).
The conviction related to a fire that occurred at a business premises in Direk, South Australia. There was no dispute at trial that the fire was deliberately lit at about 3.25 am on 22 May 2017, and hence that the offence of arson had been committed. The issue at trial was one of identity; that is, whether the prosecution established beyond reasonable doubt that the appellant was one of the people who committed that offence. The prosecution case on this issue was a circumstantial case.
In this appeal against conviction, the appellant relies upon a single ground of appeal, namely that the jury’s verdict was unreasonable and unable to be supported having regard to the evidence.
The appellate task
When a verdict is challenged on the ground that it is unreasonable, the appellate court must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. The relevant question is whether the jury, acting reasonably, must (as opposed to might) have entertained a reasonable doubt about the appellant’s guilt.[2]
[2] M v The Queen (1994) 181 CLR 487 at 492-494; Libke v The Queen (2007) 230 CLR 559 at [113].
In considering this question, the appellate court must undertake an independent assessment of the whole of the evidence, both as to its sufficiency and its quality.[3] However, in so doing, the appellate court must bear in mind the “constitutional demarcation” between the role of the jury as the tribunal for deciding issues of fact and the role of the appellate court.[4] The appellate court must allow for any advantage that the jury might have had in its ability and opportunity to assess the evidence at trial.
[3] SKA v The Queen (2011) 243 CLR 400 at [12].
[4] Pell v The Queen (2020) 268 CLR 123 at [38]-[39].
In the context of a circumstantial case, the appellate court must be astute to assess and weigh all of the evidence in determining whether it was open to the jury to find the appellant guilty beyond reasonable doubt. While the court may scrutinise individual items or bodies of evidence to ensure they are properly understood, the court must not assess the significance and weight of the evidence in a piecemeal fashion. It is trite that, in a circumstantial case, the significance and weight of the various items of evidence relied upon can only be assessed in the context of the evidence as a whole.[5]
[5] Coughlan v The Queen [2020] HCA 15 at [55]; Fennell v The Queen (2019) 93 ALJR 1219 at [82]; Fitzgerald v The Queen [2014] HCA 28 at [36]; R v Hillier (2007) 228 CLR 618 at [46]; Shepherd v The Queen (1990) 170 CLR 573 at 579-580.
The appellate court must also be mindful that, in the context of a case that relies substantially or entirely upon circumstantial evidence, an accused cannot be found guilty beyond a reasonable doubt unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.[6] This requires satisfaction that the accused’s guilt is the only rational inference that may be drawn from the circumstances established by the evidence.[7]
[6] Peacock v The King (1911) 13 CLR 619 at 634.
[7] Plomp v The Queen (1963) 110 CLR 234 at 243; Barca v The Queen (1975) 133 CLR 82 at 104-105.
The fire
The fire occurred at the business premises of iPetz, a pet supply business located on Orion Road in Direk. The iPetz premises consist of a 2000 square metre warehouse surrounded by some areas of open land, as well as other industrial premises and buildings. At the front of the iPetz warehouse is a foyer containing a reception, shop and administrative offices. The premises are surrounded by cyclone fencing.
At 3.25 am on 22 May 2017, an internal alarm at iPetz was activated. Police attended the premises at about 3.40 am. They found smoke coming from the office section of the building. Officers from the Metropolitan Fire Service attended at about 3.43 am. They identified a fire in one of the offices at the front of the warehouse. The fire was contained within that office and extinguished.
A crime scene examiner, Brevet Sergeant Neil Metcalfe, attended shortly before 8.00 am on 22 May 2017. He made observations that included the following: the cyclone fencing in the south-western corner of the property had been cut; an office window on the south-eastern corner of the building was broken; there was sooting and smoke damage to the walls of the office; inside the office, on a desk directly under the broken window, was a log splitter with a wooden handle; also inside that office were a Miller Draught cardboard beer holder and six Miller Draught beer bottles. Of the six bottles located in the office, one was near the desk and half full of liquid, two had their screw caps in place and were full of liquid, one was near the door of the office and was intact but did not have a cap and was covered in soot, and the broken remains of the other two were near the door of the office.
The contents of two of the beer bottles were tested and determined to be petrol. The beer bottle found near the desk was tested for DNA, but there was insufficient DNA for any analysis to be carried out.
CCTV footage was obtained from the business premises adjacent to iPetz and from a nearby Caltex service station. The footage depicted the following: a vehicle drove down the road that passed along the front of the iPetz warehouse at about 3.16 am; the vehicle then travelled around a roundabout and stopped in the vicinity of the roadway behind iPetz, Mirage Road, at about 3.19 am; several seconds later, a dark shadow emerged from the vehicle and moved away to the left; the driver’s door of the vehicle appeared to remain closed; a silhouette was visible at the office window of iPetz at about 3.25 am; a bright light then appeared from the area of the broken office window; a figure could then be seen running from the window along the boundary fence line of the premises, in the direction of the hole in the cyclone fence; that figure could then be seen returning to the vehicle parked on Mirage Road at about 3.26 am; and the vehicle’s lights turned on and drove away.
The prosecution case
At trial, it was not in dispute that an offence of arson had been committed at the iPetz premises at Direk on 22 May 2017. The issue was whether the prosecution could establish beyond reasonable doubt that the appellant was one of the people who committed it.
The prosecution case was that two people travelled to the iPetz premises pursuant to an agreement to commit the offence of arson at that location. Based upon the CCTV footage to which we have referred, the prosecution case was that two people drove to the iPetz premises in the vehicle seen in that footage; and that one remained in the driver’s seat of the vehicle whilst the other got out, committed the physical acts that constituted the arson and then returned to the vehicle.
The prosecution did not seek to nominate which occupant of the vehicle played which role. Its case was that both occupants were party to a joint criminal enterprise to commit the arson, and that the acts of each were attributable to the other by reason of the joint criminal enterprise.
The evidence of a joint criminal enterprise between the two occupants of the vehicle was strong. The two people arrived together in the same car, in the middle of the night, in a relatively isolated and remote part of suburban Adelaide. There was a strong inference available that the occupants of the vehicle brought the log splitter and Molotov cocktails with them; and it would have been very difficult for the passenger of the vehicle to have concealed the presence of those items from the driver. The fact that the car remained in the same location for the passenger to return, and then immediately drove off supported an inference that the driver knew that the passenger intended to set fire to the iPetz premises.
We observe in passing that the trial judge’s directions to the jury confined the prosecution case to one of a joint criminal enterprise between the two accused men, and directed the jury that they could not convict either of the accused on the basis of a joint criminal enterprise with some unidentified second person. While the respondent contends that the trial judge erred in confining the prosecution case in this way, we do not consider it necessary to determine this issue. The jury having convicted Mr Harrison, the only issue on this appeal is whether it was open to the jury to conclude beyond reasonable doubt that the other occupant of the vehicle was the appellant.
As mentioned, the prosecution case on the issue of the identity of the two occupants of the vehicle, and hence of the arsonists, was a circumstantial one. The circumstances relied upon by the prosecution were essentially the following.
1.The car used in the commission of the arson (a white utility) was similar in appearance to the car being used by the appellant at the time the offence was committed.
2.The appellant and Mr Harrison were closely associated with each other at the time of the offence.
3.On the night of the arson, the appellant’s phone service and Mr Harrison’s phone service were likely together. Both phone services connected to cell towers at Alberton and Gillman, close to Mr Harrison’s house.
4.Mr Harrison’s mobile service then travelled to the vicinity of Direk, where the arson occurred. It was likely that Mr Harrison was with his mobile phone service. No location data was available for the appellant’s mobile phone service during this period.
5.At 9.21 am on the morning of 22 May 2017, the appellant’s mobile phone service again connected to the cell tower near Mr Harrison’s house.
6.DNA profiles consistent with those of the appellant and Mr Harrison were found on the log splitter that was used to smash the office window before throwing Molotov cocktails inside.
The evidence adduced in support of this circumstantial case as to the identity of the arsonists consisted of three bodies of evidence: the evidence in relation to the vehicle used to commit the offence; the telecommunications evidence; and the evidence as to the DNA found on a log splitter used in the commission of the offence.
It is appropriate to commence by summarising each of these bodies of evidence.
The vehicle evidence
As at 22 May 2017, the appellant was residing at Commane Avenue, Seaton. His co-accused, Mr Harrison, was residing at Chad Street, Rosewater. The appellant had a driver’s licence, but Mr Harrison did not.
The appellant’s father, Peter Nasaris, had been the registered owner of a white 1995 model Toyota Hilux utility (“the Hilux”) since May 2014. For a period of approximately four years prior to that, the appellant had been the registered owner of the Hilux.
There was also evidence that connected the appellant with this vehicle in the period following the fire. In particular, on six occasions between August and October 2017, police observed the Hilux parked outside the appellant’s residence at Commane Avenue, Seaton. And, on 27 November 2017, police stopped the Hilux for a mobile driver test and licence check. The appellant was the driver and sole occupant of the vehicle.
On 19 October 2017, police conducted a re-enactment of the CCTV footage from early morning of 22 May 2017, using the Hilux that they had seized from the appellant’s residence. A selection of the original CCTV footage and the re-enactment footage was given to Dr Matthew Sorrell[8] for the purposes of processing and comparison. A number of photographs of the Hilux and screenshots from the CCTV footage were also received in evidence.
[8] An electrical and electronic engineer, with expertise in telecommunications and digital investigations.
There were similarities between the appearance of the Hilux and the vehicle of interest that appeared in the original CCTV footage. These included some similarities that were the subject of evidence from Dr Sorrell, including in particular the way the headlights of the vehicles were angled and reflected off the road in both the original and re-enactment CCTV footage.
The telecommunications evidence
The evidence at trial included records for the month of May 2017 for the mobile phone services subscribed to by each of the appellant, Mr Harrison and Matthew Bird (referred to as the Nasaris service, the Harrison service and the Bird service respectively). Those records revealed not only the timing of the messages, calls and attempted calls from those services, but also the location data from those services (in the form of the various cell towers to which the relevant phone services connected from time to time).
The telephone records included numerous communications between the Nasaris and Harrison services during the month of May 2017, which the prosecution relied upon as establishing a close association between Mr Nasaris and Mr Harrison. Indeed, the two of them communicated with one another on 20 different days in the month of May 2017, often on multiple occasions on the same day. The contacts stored in the appellant’s phone included both Mr Harrison and Mr Bird.
The telephone records did not reveal any communications between the Nasaris and Harrison services during the early hours of 22 May 2017. Indeed, the records of the Nasaris service did not record any connection to any telephone tower proximate to the iPetz premises during that period, and so were, on the defence case, entirely consistent with the appellant being at home – or at least nowhere near the iPetz premises – at the relevant time.
The prosecution case, however, invited close attention to the telephone records over a period of about 12 hours from late evening on 21 May 2017 through to the morning of 22 May 2017. The entries of note (with cell tower locations in brackets) may be summarised as follows:
Time Initiating service Action Receiving service 21 May 2017 10.12 pm Harrison (Alberton) calls Nasaris (Seaton) 10.27 pm Nasaris (Fulham Gardens) calls Harrison (Alberton) 11.37 pm Nasaris (Croydon) attempts to call Bird (Salisbury North) 11.50 pm Bird (Salisbury North) SMS Nasaris 11.54 pm Bird (Salisbury North) SMS Nasaris 22 May 2017 12.12 am Bird (Paralowie North) SMS Nasaris 12.13 am Harrison (Alberton) receives SMS 12.14 am Bird (Paralowie North) SMS Nasaris 12.44 am Bird (Salisbury North) SMS Nasaris 12.58 am Nasaris (Gillman) attempts to call Bird (Paralowie North) 1.01 am Nasaris (Alberton) attempts to call 1.09 am Nasaris (Alberton) calls Bird (Paralowie North) 1.16 am Nasris (Alberton) attempts to call 1.20 am Bird (Salisbury North) SMS Nasaris 1.20 am Nasaris (Alberton) receives a call 1.42 am Harrison (Alberton) last connection in area 2.09 am Bird (Salisbury North) SMS Nasaris 2.27 am Harrison (Paralowie North) 2.34 am Hennessy attempts to call Nasaris 2.35 am Harrison (Burton) 2.38 am Harrison (Paralowie North) 2.47 am Hennessy attempts to call Nasaris 2.53 am Bird (Salisbury North) attempts to call Nasaris 3.07 am Bird (Salisbury North) attempts to call Nasaris 3.08 am Bird (Salisbury North) attempts to call Harrison 3.08 am Harrison (Burton) 3.21 am Bird (Salisbury North) SMS Harrison (Davoren Park) 3.25 am Fire 3.32 am Harrison (Paralowie North) 3.48 am Harrison (Salisbury DSTO) 3.48 am Harrison (Salisbury North) 3.55 am Harrison (Salisbury North) 3.59 am Harrison (Salisbury DSTO) 4.14 am Harrison (Paralowie North) 5.06 am Harrison (Paralowie North) 7.24 am Harrison (Cheltenham) 8.08 am Harrison (Alberton North) 9.21 am Nasaris (Alberton North) 9.55 am Harrison (Alberton North) 10.09 am Nasaris (Seaton)
We shall return later in these reasons to the inferences that might be drawn from these communications and associated location data.
The DNA evidence
The log splitter located under the broken window in the office where the fire started was tested for DNA. Dr Oliva Handt (forensic scientist) gave evidence explaining the results derived from the analysis of the DNA profile that was obtained from the log splitter.
Dr Handt explained that of the four contributors to the DNA profile obtained from the log splitter, two contributors provided the majority of the DNA (referred to as contributor 1 and contributor 2, and contributing 51 per cent and 46 per cent respectively of the DNA). The DNA profile obtained from the appellant aligned with the profile of contributor 1, and the DNA profile obtained from Mr Harrison aligned with the profile of contributor 2.
The analysis of the DNA profile obtained from the log splitter revealed that it was more than 100 billion times more likely that the appellant was a contributor to this DNA profile than if the profile was obtained from four unknown persons, and 35 billion times more likely that Mr Harrison was a contributor to this DNA profile than if the profile was obtained from four unknown persons.
The trial judge’s Shepherd direction
Before addressing the appellant’s submissions in relation to the significance of the three bodies of circumstantial evidence that we have outlined, it is appropriate to mention the respondent’s challenge to the trial judge’s decision to give a so-called Shepherd direction in relation to the jury’s use of the DNA evidence.
After outlining some of the key aspects of the evidence at trial, and the circumstantial nature of the prosecution case as to the identity of the arsonists, the trial judge gave the jury largely orthodox directions in relation to the general approach to be taken in a circumstantial case. However, in the context of the DNA evidence, the trial judge, over the opposition of the prosecutor, directed the jury in terms that it was an indispensable link in the jury’s chain of reasoning towards the guilt of either accused that they be satisfied beyond reasonable doubt that any “connection” between the accused and the log splitter occurred in “incriminating circumstances.” Her Honour said:
So, the essential link in the chain of reasoning for a verdict of guilty in respect of both accused in this case that requires reasonable doubt before you can convict, or if you are not satisfied beyond reasonable doubt would mean the case would collapse, is as follows: the intermediate fact that requires proof beyond reasonable doubt in the case against each accused is that any connection you find there to be between each accused and the log splitter must have occurred in incriminating circumstances.
I will put it another way. If you are satisfied by the evidence of Dr Handt that each accused was connected to the log splitter because his DNA was on it, it is an essential link in the chain of reasoning towards an inference of guilt that the prosecution proves beyond reasonable doubt that the connection of each accused with the log splitter occurred when the log splitter was being transported to, or used at iPetz, for the purpose of breaking the window in order to throw Molotov cocktails inside as part of a joint enterprise between the two accused to commit the offence of arson.
So you can see the indispensable link in the chain.
If you find the accused were connected to the log splitter because the DNA evidence establishes that, and you find that the log splitter is connected to the arson because the evidence establishes it was used to smash the window and then Molotov cocktails were thrown inside, in order to convict the accused you have to be satisfied beyond reasonable doubt that the circumstances in which the accused’s DNA were deposited on that item was in incriminating circumstances, that is, when it was being used, or on its way to being used, to commit the arson as part of that joint enterprise.
The respondent contends that this direction was erroneous; that the jury’s use of the DNA evidence was not dependent upon any intermediate conclusion of the type described by the trial judge.
The authorities governing the circumstances in which it may be necessary or appropriate to give a Shepherd direction were recently summarised by this Court in R v Singh.[9] It is not necessary to repeat that summary. It is sufficient to observe that:[10]
In determining whether, in a particular circumstantial case, a Shepherd direction is appropriate, it will be necessary to consider the role and significance of the particular evidence or fact in respect of which the direction is said to be appropriate. If, by reason of either the inherent role or significance of that evidence or fact in the case, or in light of the way in which the case has been conducted, it forms an indispensable link in the chain of reasoning towards the defendant’s guilt, then such a direction may be appropriate.
[9] R v Singh [2019] SASCFC 51 at [86]-[113].
[10] R v Singh [2019] SASCFC 51 at [89].
Here, the issue in the case was the identity of the arsonists. As explained earlier in these reasons, the prosecution case on this issue relied upon three bodies of circumstantial evidence. The prosecution case as to the identity of the arsonists was presented as one that relied upon the combined significance and weight of the entirety of these three bodies of evidence. While the DNA evidence was an important aspect of this evidence, it was not relied upon as establishing any particular circumstance that was an indispensable step in the jury’s reasoning towards guilt.
The DNA evidence was relied upon as probative of a connection between each of the accused and the log splitter used to commit the arson. But the prosecution case did not involve any invitation to the jury to, or any inherent likelihood that the jury would, approach the DNA evidence in a separate or sequential manner. Rather, the prosecution case invited the jury to assess the significance of this evidence to the issue of identity in combination with the balance of the circumstantial evidence relevant to that issue; that is, the evidence in relation to the vehicle used in the arson and the telecommunications records for the accuseds’ mobile phone services. The connection that might be inferred from the DNA evidence was an important strand in the prosecution circumstantial case as to identity, but not an indispensable link in a chain of reasoning. It was neither necessary nor appropriate to give any Shepherd direction in relation to that evidence.
In deciding it was appropriate to give such a direction, it is apparent that the trial judge relied upon an example given by Kourakis J (as he then was) in R v Tartaglia:[11]
The distinction between chain and rope type circumstantial cases does not depend at all on the number of items of circumstantial evidence but on the causal relationship, if any, between those items. The distinction can be simply illustrated by postulating an offence of assault with a weapon. A weapon might be connected to the accused by a set of circumstances like fingerprints, DNA profiling, previous possession or traces of the weapon left on the accused. Any two or more of those items would operate circumstantially as strands which reinforced one another. However, those circumstances do not advance proof of the crime very far unless the weapon connected to the accused is found to be the weapon which inflicted the harm. The weapon might be so connected by another set of circumstances, including blood staining, a match between the shape of the wound and the weapon, or location of the weapon at the scene of the crime. Any two or more of those items would also operate as strands of circumstantial evidence to connect the weapon to the assault. However, to convict the accused, the accused’s connection to the weapon and the weapon’s connection to the wound operate circumstantially as links in a chain, and must be proved beyond reasonable doubt.
[11] R v Tartaglia (2011) 110 SASR 378 at [90] (Kourakis J). While his Honour was in dissent in holding that a Shepherd direction was not necessary in that case, there is no reason to doubt the validity of his illustration of a circumstance in which such a direction might be necessary or appropriate.
This illustration of when a Shepherd direction might be appropriate does not provide any support for the direction the trial judge gave in the present case. To the extent that there is any analogy with the present case, it would be in the need to be satisfied as to the connection between the log splitter and the arson (as to which there was no doubt), and not as to any need to be satisfied as to the circumstances in which the DNA of the accused came to be on the log splitter.
While we are satisfied that the trial judge erred in giving a Shepherd direction in respect of the DNA evidence, it was an error that operated favourably to the appellant. It does not, of itself, provide any basis for impugning the verdict of the jury. However, the respondent contended that, in undertaking the independent review that the appellate court is required to undertake when considering a challenge to a verdict on the ground that it is unreasonable, it is appropriate to do so on the assumption that the jury was properly instructed. In other words, when considering whether it was open to the jury, acting reasonably, to find beyond reasonable doubt that the appellant was one of the arsonists, the task should be approached without any constraint imposed by the trial judge’s Shepherd direction.
The appellant did not challenge this approach to the appeal, and so we have adopted this approach in our analysis of the evidence that follows.[12]
[12] This approach is consistent with the approach taken by this Court in SPC v The Queen [2020] SASCFC 43 at [58]-[61] (Kourakis CJ, Nicholson and Bampton JJ agreeing); cf R v Serratore (1999) 48 NSWLR 101 at [128]-[136] (Dunford J, Greg James J and Smart AJ agreeing).
Analysis
In contending that the jury’s verdict of guilty was unreasonable, counsel for the appellant challenged the probative force of each of the three bodies of evidence that we have outlined, both individually and in combination.
The vehicle evidence
The appellant contended that the evidence in relation to the vehicle seen in the original CCTV footage, and the Hilux connected with the appellant, took the prosecution case nowhere. He contended that the highest the evidence rose to show that a vehicle which was similar in colour and shape to the Hilux was in the vicinity of the crime scene at the relevant time; that there were no unique features to positively identify the vehicle shown in the original CCTV footage as the one connected with the appellant.
The appellant’s submissions in relation to the vehicle evidence understate its significance in several respects. First, the CCTV footage did more than show a vehicle that was in the vicinity of the crime scene at the relevant time. As summarised earlier in these reasons, the CCTV footage showed: the vehicle stop near the iPetz premises shortly prior to the fire starting; a person emerge from the vehicle and approach iPetz; a bright light appear from the location where the fire started; the person return to the vehicle; and the vehicle depart. In other words, the CCTV footage showed not just a vehicle in the vicinity of the iPetz premises at the relevant time, but the vehicle used to commit the arson.
As for the comparison between the original CCTV footage and the re-enactment CCTV footage involving the Hilux, the appellant’s submissions tend to understate the significance of the similarity in shape and colour of each of the vehicles depicted. The appellant’s counsel suggested that the similarity in colour and shape was of little significance given the number of white utilities, including white Hilux utilities, on the suburban Adelaide roads. The difficulty with this submission is that it overlooks the significance of the rather distinctive shape of the Hilux. As mentioned earlier, the Hilux connected with the appellant was a 1995 model Toyota Hilux. The photographs of that car show a white utility with a rather distinctive elongated and angular shape. The original CCTV footage, and some of the still photographs taken from that footage, depict a vehicle with a similarly elongated and angular shape.
In addition to the above, the prosecution sought to demonstrate a distinctiveness of the vehicle in the original CCTV footage that went beyond its colour and shape. In particular, the prosecution adduced evidence from Dr Sorrell to the effect that the vehicle in the original CCTV footage had a unique, or at least unusual, feature in that, when parked near the iPetz premises, its headlights were angled quite steeply down and caused a reflection off the road. Dr Sorrell described the headlights as producing an unusual “double row” effect. Dr Sorrell also gave evidence that he observed a similar feature in the Hilux in the re-enactment footage.
While this comparison evidence from Dr Sorrell was potentially significant, the appellant is right to observe that an assessment of its significance required consideration of the cross-examination of Dr Sorrell. As the appellant’s counsel pointed out, Dr Sorrell acknowledged during the course of his cross-examination on this topic that he was not able to say whether and how the vehicle’s parking lights (as opposed to headlights) might have caused or contributed to the “double row” effect he had observed. He also acknowledged that motor vehicle headlights were not matters in relation to which he had any particular expertise. These acknowledgments from Dr Sorrell tended to weaken the probative force of the similarity he identified.
We do not think that the cross-examination of Dr Sorrell entirely neutralised his evidence by way of comparison of the CCTV footage. But it was a relevant consideration, and likely explains why the prosecutor ultimately addressed the jury in terms of the “consistency” between the colour and shape of the vehicle seen in the original CCTV footage and the Hilux connected with the appellant, rather than any particularly unique or unusual similarity of features.
In our view, the vehicle evidence had some probative significance to the issue of identity having regard to the consistency between the colour, shape and lights of the vehicle in the original CCTV footage and the Hilux to which the appellant was connected. However, as is the nature of the circumstantial evidence, its ultimate probative force fell to be assessed in light of the evidence as a whole.
The telecommunications evidence
Counsel for the appellant contended that much of the telecommunications evidence led at trial related only to the co-accused, Mr Harrison. He contended that the iPetz premises were about 25 to 30 kilomtres from the appellant’s residence in Seaton; that there was no evidence of the appellant’s phone being anywhere near a cell tower that was proximate to the iPetz premises at the time of the alleged arson, or indeed at any time in May 2017; that there was no evidence, for example, of the appellant having undertaken a reconnaissance mission in the days leading up to the arson; that the telecommunications evidence went no further than establishing a relationship between the appellant and Mr Harrison; that the telecommunications evidence was consistent with the appellant being at his home in bed at the time of the arson; and that the prosecution suggestion to the contrary involved mere speculation.
In our view, this submission significantly understates the probative significance of the telecommunications evidence. When closely examined, several matters emerge, or might be inferred, from that evidence.
The first is that in the period of approximately four hours between 10.12 pm on 21 May 2017 and 2.09 am on 22 May 2017, the appellant was in phone communication with each of Mr Harrison and Mr Bird. [13] For the purposes of those communications, Mr Harrison’s phone activated the Alberton cell tower (being a cell tower proximate to his residence) and Mr Bird’s phone connected to the Salisbury North and Paralowie North cell towers (being cell towers proximate to his residence). Mr Nasaris’ phone initially connected to the Seaton cell tower (being a cell tower proximate to his residence), before then connecting to the Fulham Gardens and Croydon cell towers, and then from 1.01 am connecting to the Alberton cell tower (being a cell tower proximate to Mr Harrison’s residence). On the prosecution case, this evidence was consistent with, and indeed probative of, Mr Nasaris not only being in phone contact with Mr Harrison (and Mr Bird) in this period, but also ending up with Mr Harrison at his residence by about 1.00 am. Certainly it suggests that Mr Nasaris left his residence and travelled to a location close to Mr Harrison’s residence early in the morning of 22 May 2017.
[13] In the following section of our reasons we have, for ease of expression, referred on occasions to the relevant person rather than their phone service, but have not overlooked the potential significance of this distinction. Counsel for Mr Harrison, in particular, contended that it could not be assumed that he was with, or was using, his phone service on each of the occasions that an activity or location was recorded.
The second is that in the period of approximately one hour between 2.27 am and the fire, Mr Harrison’s phone (and by inference, Mr Harrison) moved from his residence to the vicinity of various cell towers that were proximate to the iPetz premises in Direk (namely, the Paralowie North, Burton and Davoren Park cell towers). These movements are consistent with Mr Harrison being in the vehicle of the arsonist (as shown in the CCTV footage referred to earlier).
It is true, as the appellant’s counsel emphasises, that there is no evidence during this period of the appellant’s phone connecting to any of the cell towers proximate to the iPetz premises. However, as the respondent points out, it is not as though there is evidence indicating that the appellant or his phone were somewhere else at the time. There was simply no entry in the records for the appellant’s phone service during the period from 1.20 am (when his phone activated the Alberton cell tower) through to 9.21 am (when his phone activated the Alberton North cell tower). Both the Alberton and Alberton North cell towers were close to Mr Harrison’s residence. It is also noteworthy that both Mr Bird and Mr Hennessy attempted (unsuccessfully) to call the appellant during this period. The prosecution case is that this evidence is consistent with the appellant not using his phone during this period of time, and perhaps having turned it off or left it at Mr Harrison’s, but being in company with Mr Harrison in the vehicle seen near iPetz at the time of the fire.
The third is that during the approximately two hour period from when the fire was lit until 5.06 am, Mr Harrison’s phone service connected to the Paralowie North, Salisbury DSTO and Salisbury North cell towers on multiple occasions. While these cell towers are reasonably proximate to the iPetz premises,[14] they are also proximate to Mr Bird’s residence. On the prosecution case, this evidence is consistent with Mr Harrison (and, by inference, the appellant) being at Mr Bird’s residence during this period. It is noteworthy in this respect that during the period from 4.01 am to 6.26 am, Mr Bird’s service only connected to the Paralowie North and Salisbury North towers (being cell towers proximate to his residence), consistent with him being at his residence with Mr Harrison (and, by inference, the appellant).
[14] The Paralowie North and Salisbury DSTO cell towers more so than the Salisbury North cell tower.
The fourth is that it can be seen that Mr Harrison’s service connected to the Cheltenham cell tower at 7.24 am and the Alberton North cell tower at 8.08 am and 9.55 am. On the prosecution case, this is consistent with, and indeed probative of, Mr Harrison returning to his residence by about 8.08 am.
Significantly, Mr Nasaris’ phone connected to the Alberton North tower at 9.21 am before then connecting to the Seaton tower at 10.09 am. On the prosecution case, this evidence is consistent with the appellant being with Mr Harrison when he returned to his (Mr Harrison’s) residence, before then travelling back to his own residence (near the Seaton cell tower).
It is also noteworthy that the data from the telephone records for May 2017 indicated that it was unusual for the appellant’s phone service to be in the vicinity of Mr Harrison’s residence. Additionally, the appellant’s phone service was usually connected to the Seaton cell tower, near his own residence, between about 1.30 am and 5.30 am each night during May 2017, apart from the night of the alleged offence.
The telephone records for May 2017 also suggested that it was unusual for Mr Harrison’s phone to be as far north as the iPetz premises.
Properly understood, the telecommunications evidence was very significant evidence. In our view, it was capable of supporting several inferences which, at least in combination, were strongly probative of the appellant being one of the arsonists. It was capable of supporting inferences, for example, of telephone contact between the appellant, Mr Harrison and Mr Bird in the hours preceding the fire; of the appellant travelling to the vicinity of Mr Harrison’s residence at about 1 am in the morning of 22 May 2017; of the appellant’s phone not making contact with any cell tower for several hours; of the appellant being present in the vicinity of Mr Harrison’s residence again soon after 9 am; and of the appellant returning to the vicinity of his residence by about 10 am. Not only was this night time travel out of the ordinary for the appellant (based upon the balance of his May 2017 telephone records), but also hardly supportive of him being at his own residence at the relevant time. The pattern of the telecommunications evidence was more consistent with the appellant being in the company of Mr Harrison during the relevant window of time, thus making the evidence as to Mr Harrison’s location probative also of the appellant’s location.
When considered in combination with the balance of the circumstantial evidence (that is, the vehicle evidence and the DNA evidence), the telecommunications evidence was strongly probative of the accused’s location at the relevant time, and hence identity as one of the arsonists.
The DNA evidence
In challenging the weight that could properly be assigned to the DNA evidence, the appellant’s counsel emphasised that Dr Handt could not state when or how the appellant’s DNA came to be on the log splitter, and that the statistical weighting in favour of the appellant and Mr Harrison having contributed to the DNA profile obtained did not provide any assistance in that regard. Dr Handt was not able to say whether the appellant’s DNA was deposited by way of primary, secondary or tertiary transfer. It was thus not possible to say whether the presence of that DNA on the log splitter was a result of the appellant having handled the log splitter, or the appellant having merely come into contact with either a person who had handled the log splitter or an object that that person had handled. Given the portable nature of the log splitter, the appellant contended that this uncertainty significantly undermined the weight that could be attached to the DNA evidence. Indeed, his counsel suggested that it effectively neutralised that evidence.
In his closing address, the prosecutor acknowledged that the DNA evidence was not, in isolation, sufficient to establish the appellant’s guilt. That may be accepted, but in our view it was nevertheless very powerful evidence of the appellant’s involvement in the joint criminal enterprise to commit arson, at least when taken in combination with the balance of the prosecution’s circumstantial case.
The direct or immediate significance of the DNA evidence was that it supported a connection between both the appellant and Mr Harrison and the log splitter. Considered alone, the DNA evidence could not justify any inference as to how that DNA came to be on the log splitter. However, bearing in mind that the issue in the case was the identity of the arsonists, when considered in combination with the vehicle evidence and the telecommunications evidence, the DNA evidence was also supportive of a connection between the two accused and the log splitter used to commit the offence, and hence circumstantially probative of the two accused’s involvement in that offence.
It is particularly significant in this context that the DNA profile included DNA from both the appellant and Mr Harrison.
The evidence as a whole
As mentioned at the outset of these reasons, the proper approach to a circumstantial case requires consideration of the evidence as a whole. In our view, when considered in its totality, the prosecution case was a strong one. The evidence established the six circumstances relied upon by the prosecution, and when considered in combination provided ample basis for the jury to have been satisfied beyond reasonable doubt that the appellant was one of the two occupants of the vehicle used to commit the arson, and hence guilty of arson by reason of his participation in a joint enterprise to commit arson. It follows that the appellant has not established that the verdict was unreasonable.
For completeness, we add that even if the issue of whether the verdict was unreasonable was required to be considered in conformity with the Shepherd direction as given by the trial judge, the outcome would have been the same. The DNA evidence, considered alone, did not enable any conclusion to be drawn as to the circumstances in which the DNA consistent with that of the appellant came to be on the log splitter. However, when considered in combination with the vehicle and telecommunications evidence, we are satisfied that it was open to the jury, acting reasonably, to have concluded beyond reasonable doubt that the DNA consistent with that of the appellant was deposited on the log splitter in connection with its use in the arson.
Another matter
In submissions on the appeal, the respondent challenged a pretrial ruling[15] by a judge of the District Court to exclude evidence of a covert recording of a conversation between the appellant and Mr Harrison, during the course of which both men made several potentially inculpatory statements. The conversation was recorded using a listening device installed in the prison cell into which the appellant and Mr Harrison were placed following their arrest and the refusal of police bail. The listening device had been installed pursuant to a warrant obtained from a Supreme Court judge.
[15] Being a ruling made in advance of the trial by a different judge.
The judge exercised his discretion to exclude the evidence of this conversation. In so doing, his Honour concluded that the conversation was recorded in breach of the Summary Offences Act 1953 (SA) and Bail Act 1985 (SA), and in circumstances that involved an abrogation of the accused’s right to silence and right to speak with a solicitor. The respondent challenged the suggestion of any impropriety in the circumstances of the recording, and hence the judge’s decision to exclude the evidence.
The relevance of this challenge to the judge’s exclusion of the evidence of the conversation between the appellant and Mr Harrison was confined to a submission that, if this Court were minded to allow the appeal, then this was a case in which it would be appropriate to order that there be a retrial. While acknowledging that it would ordinarily be appropriate to order an acquittal following a successful appeal on the ground that a verdict was unreasonable, the respondent contended that the Court nevertheless had power under s 158(3) of the Criminal Procedure Act 1921 (SA) to order a retrial. The respondent contended that such an order might, exceptionally, be appropriate where an incorrect ruling or decision of the trial judge meant that the prosecution had not had a proper opportunity to present its case at first instance. A retrial would not, in these circumstances, involve any attempt to present new evidence, or a new case, that the prosecution had failed to present at the first trial by reason of some forensic decision or oversight on the part of the prosecution.[16]
[16] See the discussion of what constitutes a ‘new case’ for these purposes in the Queen v Taufahema (2007) 228 CLR 232 at [52]-[67] (Gummow, Hayne, Heydon and Crennan JJ).
In circumstances where we have concluded that the appeal should be dismissed, there is no need for us to reach a conclusion in relation to this aspect of the matter. It is sufficient to note that we have some reservations as to the correctness of the judge’s decision to exclude the evidence of the conversation between the appellant and Mr Harrison. At the same time, we should also state that we have not found it necessary to reach a conclusion as to the soundness of the respondent’s contention that success in establishing that a verdict was unreasonable might result in an order for a retrial rather than an acquittal.
Conclusion
For the reasons given, we dismiss the appeal.
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