Nasaris v The Queen

Case [2021] SASCA 143

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…

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Nasaris v The Queen [2021] SASCA 143
Case
[2021] SASCA 143
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CaseChat Overview and Summary

The appeal in *Nasaris v The Queen* concerned a conviction for arson. The appellant, Nasaris, was found guilty of arson by reason of his participation in a joint criminal enterprise. The prosecution's case relied heavily on circumstantial evidence, including DNA analysis and location data, to establish Nasaris's involvement.

The central legal issues before the court were whether the jury's verdict was unreasonable or insupportable having regard to the evidence, and the proper application of the *Shepherd* direction in relation to the DNA evidence. Specifically, the court considered whether the prosecution had proven beyond reasonable doubt that the appellant was one of the two occupants of a vehicle involved in the arson and, consequently, guilty of the offence. The court also addressed the trial judge's direction to the jury that any connection between the appellant and a log splitter, found at the scene and bearing the appellant's DNA, must have occurred in incriminating circumstances.

The Court of Appeal dismissed the appeal, holding that the prosecution's case, when considered in its totality, provided ample basis for the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court found that the DNA evidence, which established a highly probable link between the appellant and the log splitter used to break into the premises, when combined with other circumstantial evidence, was sufficient to support the jury's verdict. While the court expressed reservations about the trial judge's decision to exclude certain evidence and the correctness of the *Shepherd* direction, these issues were not determinative of the appeal's outcome.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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