NSW Police v Gittany

[2022] NSWLC 7

Local Court

New South Wales

Medium Neutral Citation:

NSW Police v Gittany [2022] NSWLC 7

Hearing dates:

1 November 2022

Date of orders:

9 November 2022

Decision date:

09 November 2022

Jurisdiction:

Criminal

Before:

Nash LCM

Decision:

Sequence 1 proved – verdict: guilty

Sequence 2 dismissed – verdict: not guilty

Catchwords:

Crime – allegations concerning inmate at Clarence Correction Facility – sequence 1: possession of prohibited drug – buprenorphine strips – direct evidence from correctional officer and close circuit television and body worn video footage - circumstantial evidence arising from DNA testing - whether accused had possession of buprenorphine strips – sequence 2: possession of offensive weapon – prison-made ‘shiv’ – whether accused had possession of shiv - circumstantial evidence arising from DNA testing

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

He Kaw Teh v The Queen (1985) 157 CLR 523

Leonard v Morris (1975) 10 SASR 528

Mahmood v Western Australia (2008) 232 CLR 397

R v Baird (1985) 3 NSWLR 331

R v Borg, Carroll & Fear [2015] NSWDC 116

R v Cotterill (unrep, 7/6/93, NSWCCA)

R v Galvin (No. 2) [1961] VR 740

R v Micallef [2002] NSWCCA 480

Texts Cited:

Nil

Category:

Principal judgment

Parties:

NSW Police (Prosecutor)
Benjamin Gittany (Defendant)

Representation:

Counsel:
N/A

Solicitors:
Sgt Batterson (Prosecutor)
Elie Srour, Criminal Law Group (Defendant)

File Number(s):

2021/257601

Publication restriction:

Nil

Judgment

1. Benjamin Gittany (the accused) is charged with 2 offences:

1. Sequence 1: on 7 July 2021, at the Clarence Correctional Facility, the accused possessed a prohibit drug, to wit, buprenorphine, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985; and

2. Sequence 2: on 7 July 2021, at the Clarence Correctional Facility, the accused possessed an offensive weapon or instrument, being a prison-made weapon or ‘shiv’, in a place of detention, contrary to s 253E(1) of the Crimes (Administration of Sentences) At 1999.

2. Section 10(1) of the Drug Misuse and Trafficking Act 1985 provides:

10   Possession of prohibited drugs

(1)   A person who has a prohibited drug in his or her possession is guilty of an offence.

…

3. Section 253E of the Crimes (Administration of Sentences) Act 1999 provides:

253E   Unlawful possession of offensive weapons or instruments

(1)   A person must not, without reasonable excuse, have in his or her possession an offensive weapon or instrument in a place of detention.

Maximum penalty—50 penalty units or imprisonment for 2 years, or both.

(2)   If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive weapon or instrument be forfeited to the Crown, and the weapon or instrument is forfeited accordingly.

(3)   In this section, offensive weapon or instrument has the same meaning as it has in the Crimes Act 1900.

4. Section 4 of the Crimes Act 1900 relevantly provides:

…

Offensive weapon or instrument means—

(a)  a dangerous weapon, or

(b)  any thing that is made or adapted for offensive purposes, or

(c)  any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

…

5. Both offences were alleged to have been committed while the accused was an inmate at the Clarence Correctional Facility.

6. The accused entered a plea of ‘not guilty’ to both charges on 30 September 2021 and the hearing of these proceedings occurred on 1 November 2022. A referral to the Director of Public Prosecutions, delayed service of brief items, and the vacation of an earlier hearing date caused delay in the hearing of these proceedings.

7. As explained in more detail below, the only issue in these proceedings was whether the accused had ‘possession’ of the buprenorphine strips the subject of sequence 1, and the prison-made weapon, known as a ‘shiv’, the subject of sequence 2.

8. For the following reasons, I find the accused ‘guilty’ of the offence comprised in sequence 1 and ‘not guilty’ of the offence comprised in sequence 2.

A.   DIRECTIONS OF LAW

9. It is appropriate to set out the directions of law which are relevant to the determination of these charges. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused.

10. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the prosecutor. The accused starts from the position that he is presumed innocent, and that presumption continues until the prosecution satisfies me beyond reasonable doubt that he is guilty.

11. The accused does not have to prove that he is innocent, or expressed another way, the accused does not have to prove that he is not guilty. It is for the prosecutor to prove his guilt if it can.

12. What the prosecutor must prove, beyond reasonable doubt, are the ingredients or essentials facts contained in the charges. The words "beyond reasonable doubt" are ordinary, everyday words and that is how I understand them. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

13. The fact that the accused has given evidence at the hearing does not alter the burden of proof which always rests on the prosecutor. He does not have to prove that his version of events is true. Even if all the accused’s evidence is rejected, I must still consider whether or not the prosecutor has proved the elements of the offences beyond reasonable doubt.

14. It is not necessary to find in favour of the prosecutor on every issue of fact which the accused disputes. The prosecutor does not need to prove that every word spoken by every one of its witnesses is true.

15. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

16. I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up at the hearing.

17. It is for me to assess the various witnesses and decide whether they are reliable.  I note that the reliability of any witness’s evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy.  The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me

18. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness.  I may if I think fit, accept part and reject part of that witness’s evidence.   

19. I remind myself that the fact a proposition is put by a representative to a witness does not mean that the proposition is evidence of the fact contained in the question. I note it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.

20. Because these are criminal proceedings that do not involve strict or absolute liability, not only must the prosecutor prove the accused person committed the alleged acts the subject of the charges, but there is also a common law presumption that mens rea, or an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in the offence.

21. In this respect, it is the actual knowledge and intention of the accused that must be considered (rather than what a reasonable person would have known and intended). The state of mind of the accused may be the subject of an admission, or it may be capable of inference from the circumstances. Often a person's acts provide the most convincing evidence of their knowledge and intention.

22. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence.  I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.  I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt.  Amongst other things, that means that I should be extremely careful about drawing any inference.  I should examine any possible inference to ensure that it is a justifiable inference.  I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

23. The prosecutor’s case involved circumstantial evidence, being evidence not drawn from direct observation of a fact in issue. In a circumstantial case, no one piece of evidence proves the guilt of the accused. Each piece of evidence needs to be considered in the context of and in combination with, all the evidence in the prosecutor’s case to determine if the only reasonable inference available is the guilt of the accused. The prosecutor must negative beyond reasonable doubt all other reasonable inferences consistent with innocence that arise from the evidence.

24. A correctional officer who was proximate to the accused and another key prosecution witness at the time of the alleged commission of the offence comprised in sequence 1 was not called to give evidence in the prosecutor’s case. I have had regard to the fact that I have not heard from this person in determining whether the prosecutor has proved the charge beyond reasonable doubt in accordance with the High Court decision of Mahmoud v Western Australia (2008) 232 CLR 397; [2008] HCA 1.

25. Expert evidence was called at the hearing from a forensic biologist. There was no challenge to the expertise of that witness nor as to the opinions that they have expressed. What I make of that evidence when considered in the context of the hearing as a whole is a matter for me.

26. I will now summarise the prosecutor’s case, the evidence adduced at the hearing and the legal principles that apply to the determination of the 2 charges, before setting out my findings based on the application of those principles, and the above directions of law, to the facts which I have found.

B.    SUMMARY OF PROSECUTOR’S CASE

27. In summary, the prosecutor’s case was that on 7 July 2021, the accused was an inmate at the Clarence Correctional Facility and was involved in a physical altercation with another inmate in the outside yard of the facility. Shortly after the altercation ended upon the attendance of correctional officers, it was alleged that the accused was discovered to have possession of a prohibited drug, namely buprenorphine strips.

28. The altercation was captured on close circuit television (CCTV) footage and evidence of the accused’s possession of the buprenorphine, which was contained within blue coloured packaging made from a rubber glove, was also captured on body worn video (BWV) footage.

29. Deoxyribonucleic acid (DNA) testing and analysis revealed that the accused’s DNA was found on the packaging containing the buprenorphine strips. That sequence of events, that is, the allegation the accused was in possession of the buprenorphine strips (weighing 0.31g), was the subject of the charge comprised in sequence 1. Incidentally, I note there were no charges in the proceedings before me relating to any allegation of assault made against the accused arising from the physical altercation between him and the other inmate

30. As a result of the physical altercation, the accused was put into ‘segregation’ within the Clarence Correctional Facility. Because of this, correctional officers attended upon the cell that the accused then occupied, his belongings were packaged up, and during that process a prison-made weapon, known as a ‘shiv’, was discovered under a mattress within his cell. The ‘shiv’ was made from a plastic hair comb about 20cm in length and had been sharpened to a point with a blue chux wrapped to create a handle. As with the buprenorphine drugs, DNA testing and analysis of the shiv revealed that the accused’s DNA was found on the item. That sequence of events, that is, the allegation the accused was in possession of an offensive weapon within a place of detention, was the subject of the charge comprised in sequence 2.

31. With this summary, I will now identify in more detail the evidence adduced at the hearing.

C.   EVIDENCE

32. The prosecutor’s case consisted of documentary material and oral evidence from various witness. Insofar as concerned the oral evidence adduced at the hearing, these reasons have been prepared without the benefit of a transcript of that evidence, and thus they rely on what were undoubtedly imperfect notes taken at the hearing.

33. Exhibit 1 was a statement of Michael Rodgers dated 4 July 2022. He was a Senior Constable with the Raptor Squad within the State Crime Command. His evidence primarily related to the investigation of the accused, the commissioning of a forensic analysis relating to the buprenorphine and shiv the subject of the 2 charges, the sourcing of relevant CCTV and BWV footage, and arranging for statements to be obtained from officers at the Clarence Correctional Facility including Scott Shepherd, Blake Little, Shaun Wilson, Ben Hill and Paula Watts.

34. Senior Constable Rodgers was also cross examined. His evidence in cross examination revealed that the original/initial facts sheet prepared for the matter contained errors which had to be later corrected. He also accepted that he did not speak with the accused’s cellmate, who was apparently a person known as David Keown, nor the man in the BWV footage who was standing near the accused shortly after the physical altercation between the accused and the other inmate.

35. Exhibit 2 was a document styled as a ‘Forensic Results Summary’.

36. Exhibit 3 was a document styled as a ‘Certificate of Analysis’ identifying the drugs the subject of sequence 1 as buprenorphine, weighing 0.31g.

37. Exhibit 4 was an expert certificate signed by Ivana Sesardic. She was a Forensic Biologist within the NSW Health Pathology Forensic and Analytical Science Service. In relation to the DNA analysis and testing concerning the buprenorphine packaging, she opined that the DNA recovered was a mixture that originated from at least 2 individuals. She opined the accused could not be excluded as a contributor to that mixture and assuming there were 2 contributors, it was greater than 100 billion times more likely to obtain the mixed profile if it originated from the accused and an unknown, unrelated individual, rather than if it originated from 2 unknown, unrelated individuals in the Australian population. She said the DNA from the additional contributor was not suitable for comparison due to the low level of the DNA available.

38. In relation to the DNA analysis and testing concerning the shiv, she opined that the DNA recovered was a mixture that originated from at least 3 individuals. She opined that the accused could not be excluded as a contributor to the mixture, and assuming there were 3 contributors, it was greater than 1 in 100 billion times more likely to obtain the mixed profile if it originated from the accused and 2 unknown, unrelated individuals, rather than if it originated from 3 unknown, unrelated individuals in the Australian population. The profile of one of the unknown contributors was determined, and the DNA from the additional contributors was not suitable for comparison due to the low level of the DNA available.

39. Ms Sesardic was also cross examined and I will address this evidence shortly.

40. Exhibit 5 was a statement of Paula Watts dated 4 July 2022, who was an intelligence officer at the Clarence Correctional Centre, and was responsible for downloading the CCTV footage relating to this matter. Ms Watts was not required for cross examination.

41. Exhibit 6 was a further statement of Senior Constable Michael Rodgers dated 12 August 2022 in relation to the provision of an additional file containing BWV footage relating to this matter.

42. Exhibit 7 was a further statement of Paula Watts dated 12 October 2022 in relation to the provision of the additional file containing BWV footage relating to this matter as referred to in Senior Constable Rodger’s statement in Exhibit 6.

43. Exhibit 8 was a series of 7 images taken from the BWV footage of Shaun Wilson who was an officer in the Emergency Response Team at the Clarence Correctional Facility, and on duty on 7 July 2021. That BWV footage, which I will shortly describe, was tendered as Exhibit 10. The images show, inter alia, the accused and an inmate in a black shirt. The accused is captured passing his shirt to that other inmate shortly after the physical altercation and a blue package falling to the ground.

44. Exhibit 9 was series of 5 photographs of the buprenorphine strips and the shiv.

45. Exhibit 10 comprised 2 video files on a compact disc. The first was CCTV footage showing the accused and another inmate involved in the physical altercation, and the subsequent interaction between the accused and Mr Wilson. Because of the angle of the CCTV footage, it is not possible to observe the blue packaging fall to the ground, however, the footage shows Mr Wilson picking up the package from the ground at the 1 minute and 2 second mark in the footage.

46. The second file was Mr Wilson’s BWV footage showing his interaction with the accused shortly after the altercation. That footage showed the accused pass his shirt to another inmate wearing a black shirt. The shirt is then passed to another inmate who runs off inside the cell block. Critical in the prosecution case, the footage also shows that at the 1 minute 12 second mark, a blue package falls to the ground. As Mr Wilson’s evidence explained, which I will outline shortly, that package contained the 7 buprenorphine strips the subject of sequence 1. Mr Wilson can be seen at the 1 minute 17 second mark in the BWV footage to pick up the blue packaging from the ground. In other words, this movement is the same movement depicted in the CCTV footage at the 1 minute 2 second mark.

47. Exhibit 11 was the BWV footage of Mr Wilson, in the presence of a Mr Benjamin Hill, whose evidence I will identify shortly, removing the blue packaging containing the buprenorphine strips and identifying 7 strips had been located within that packaging.

48. Exhibit 12 was the original/initial fact sheet prepared in relation to this matter, as referred to in the cross examination of Mr Rodgers.

49. Exhibit 13 was the statement of Benjamin Hill. He was an Acting Supervisor at the Clarence Correctional Facility. He gave evidence that he observed the physical altercation between the accused and another inmate on the CCTV screen and issued directions to control the situation.

50. He said Shaun Wilson approached him and made him aware of a package retrieved during the incident. He handed him a blue rubber item that looked similar to a balloon with a knot tied in the end. He recognised the item to be the finger of a disposable rubber glove tied at one end. He could feel the finger contained an item. Mr Wilson attended Mr Hill’s office and he observed Mr Wilson to activate a body worn camera. This was the footage in Exhibit 11. He also asked officers Shepherd and Little to conduct a search of the accused’s cell, and a short time later he was made aware that they had located the shiv.

51. Attached to Mr Hill’s statement were 3 incident reports relating to this matter. The first, being incident report number 297397, related to the physical altercation between the accused and the other inmate. The next incident report, being report number 297401, related to the discovery of the buprenorphine strips, and an observation that the accused passed an item to another inmate and then that person passed the item onto another inmate. The final inmate in that sequence was directed to hand over the item and a chase ensued, as can be seen in the BWV footage in Exhibit 10. The third and final incident report, being report number 297452, related to the discovery of the shiv in the accused’s cell. The report noted that the cell was apparently shared between the accused and another inmate, David Keown.

32. Mr Hill was also cross examined and I will return to that evidence shortly.

33. Exhibit 14 was a statement of Blake Little. He gave evidence he was an Accommodation Officer at the Clarence Correctional Centre, and that he was tasked, along with Mr Scott Shepherd, with packing up the accused’s cell, being cell 19, following the physical altercation. He observed Mr Shepherd locate an item under the mattress of the accused’s bed, which he recognised as a shiv.

34. Mr Little was also cross examined and I will return to that evidence shortly.

35. Exhibit 15 was a statement of Scott Shepherd. He was a Correctional Case Officer at the Clarence Correctional Centre. He was tasked with packing up the accused’s cell, being cell 19, with Mr Little. He said he lifted up the mattress within the cell, and located what appeared to be a shiv. The cell was secured, and an incident report was prepared.

36. Mr Shepherd was also cross examined and I will return to that evidence shortly.

37. Finally, I now summarise the oral evidence of Shaun Wilson:

1. On 7 July 2021, he was on duty working within the Emergency Response Team at the Clarence Correctional Centre. At about 2.48pm that day, he recalled that a ‘Code Black’ was announced and he attended upon cell block Block 2 and observed 2 inmates fighting. One of the inmates was the accused. He saw the accused with a ripped shirt and he was agitated;

2. Mr Wilson directed the accused to place his hands on a wall. The accused also had his shirt in his hands. He recalled the accused reached into his pocket and placed an object inside the shirt. The accused then turned around to another inmate and passed the shirt to another inmate. He said it appeared that a blue coloured object fell to the ground at this moment;

3. He also said that the accused obeyed his directions following the altercation;

4. He then placed his foot on the blue object, and together with another officer, they both went to deal with the inmate to whom the accused’s shirt had eventually been passed. Mr Wilson also picked up the blue balloon packaging off the ground;

5. He recalled seeing the accused put his hand into his pocket and he was within 10 metres of the accused at this time and had a clear line of sight to him;

6. He said the blue object was in the form of a balloon, and the material had been taken from a plastic glove;

7. He did not say anything to the accused at the immediate moment when he saw the object. Likewise, the accused did not say anything about the packaging;

8. He said the accused was about 3 metres away from him when he put his foot on the blue object after it had fallen to the ground;

9. He picked up the packaging and ultimately informed his supervisor, Mr Hill, of the object and handed it to him. He said that Mr Hill examined the packaging, and he also viewed the item in the room with Mr Hill. He confirmed that the BWV footage in Exhibit 11 showed him handling the blue package with Mr Hill. He said Mr Hill proceeded to play the package and the buprenorphine strips into an evidence bag.

58. Mr Wilson was also cross examined, and I will return to this evidence shortly.

59. At the close of the prosecutor’s case, the accused conceded a prima facie case and elected to give evidence.

60. The evidence of the accused was as follows:

1. On 7 July 2021, he was involved in a physical altercation at the Clarence Correctional Facility. Afterwards, he was subjected to a strip search and locked in his cell over night;

2. He said that immediately after the altercation, he had his shirt in his hand, as well as some rosary beads. He said he passed his belongings to the other inmate because he knew he would be detained or searched. He was aware that this was the protocol following altercations between inmates;

3. He denied at any stage reaching into his pockets and denied having ever seen the blue package containing the buprenorphine strips;

4. He denied giving that package to another inmate and he never had it in his hand;

5. He said that when he was strip searched, he was asked about the blue package;

6. He also confirmed that his cell, being cell 19, was also occupied by another inmate named ‘David’. He had occupied the cell for about 10 days prior to the altercation;

7. He said the cell doors are not locked and anyone can access another inmate’s cell. He said it was common for inmates to ‘hang out’ with other inmates in their cells; and

8. He denied the shiv belonged to him.

61. The accused was also cross examined and I will return to that evidence shortly when I outline my findings.

62. There was no other evidence adduced in the accused’s case.

63. I now turn to the legal principles relevant in determining the 2 charges.

D.   LEGAL PRINCIPLES

64. Centrally relevant in the determination of these proceedings are the legal principles concerning the meaning of the word ‘possess’ or ‘possession’. Based on the evidence and final submissions of the parties, the only issue in this case was whether the accused had possession of the buprenorphine strips and the shiv, that is, whether he had intentional control over those items. In that respect, because the evidence of the circumstances involving the discovery of each item was different, it is necessary to consider both sequences separately.

65. The essence of the concept of possession in law is that, at the relevant time, the person intentionally has control over the object in question. A person can have control alone or jointly with some other person or persons. Each person must have the right to exclude other people from it. Ownership is not a prerequisite to establish possession. A person can possess an object temporarily or for some limited purpose. In defining possession as having intentional control over the object in question, the person must have knowledge as to possession.

66. As to this summary of the law relating to possession and knowledge, see He Kaw Teh v The Queen (1985) 157 CLR 523, particularly at 627, 629 and 648. See also R v Baird (1985) 3 NSWLR 331, R v Cotterill (unrep, 7/6/93, NSWCCA) and R v Micallef [2002] NSWCCA 480.

67. I am also mindful that in this case, the prosecutor relies on evidence of DNA taken from each of the subject items, which matched that of the accused. In R v Borg, Carroll & Fear [2015] NSWDC 116, the court identified and summarised the principles articulated in some of the leading case authorities concerning the use and probative value of DNA evidence. Before a case can be proved beyond reasonable doubt all relevant evidence linking the accused to the crime, including the DNA match and the circumstances it came to be made, must be considered in context (at [35]). When DNA profile match evidence is led at trial a number of potential issues may emerge: issues of contamination, kinship, coincidence and the weight to be given statistical calculations (at [32]). It for the jury to do what everyone - the prosecution, the defence and the judge - will invite them to do: evaluate all the evidence (at [32]).

68. In R v Borg, the court also observed that there is no general rule that expert evidence of a profile match between DNA recovered from a crime scene stain and an accused’s DNA supported by statistics showing the rarity of such a match can alone be enough to establish the identity of an offender at [24]).

69. The court further observed that it is equally correct to say there is no a rule or principle that where a DNA profile match supported by statistics as to the rarity of that match is the only evidence incriminating an accused he or she must be acquitted (at [24]).

70. In other words, the effect of the relevant DNA evidence in any given case must be understood in the context of all the evidence in the case, recognising that there can be inherent limitations on its use and its probative value if it is the only evidence linking an accused to the commission of any offence.

71. With this summary of the legal principles in mind, I now turn to my findings.

E.   FINDINGS

72. There was no dispute that DNA matching that of the accused was found on both the packaging containing the buprenorphine strips, and the cloth comprising part of the handle of the shiv. In this respect, I refer collectively to the content of Exhibits 2, 3 and 4 which were tendered without objection.

73. I also note, consistent with that documentary evidence, that the relevant drug the subject of sequence 1 was buprenorphine, and that it was relevantly a prohibited drug under the Drug Misuse and Trafficking Act 1985. Likewise, in the case of sequence 2, it was not in dispute that the ‘shiv’ was an offensive weapon as defined, and that the location of the alleged offence was a ‘place of detention’, being the Clarence Correctional Facility, for the purposes of the Crimes (Administration of Sentences) Act 1999. Accordingly, these elements of the respective offences the subject of sequences 1 and 2 were not in issue.

74. In the present matter, the prosecutor’s case in relation to both sequences did not rely solely on DNA evidence. In the case of sequence 1, the prosecutor’s case relied on the direct evidence of Mr Wilson and his observations about the accused’s movements as demonstrating the buprenorphine strips were in his possession at the relevant time, and that he had passed the blue packaging containing those strips to another inmate. In the case of sequence 2, the prosecutor’s case relied on the fact that the item was in the accused’s cell and underneath a mattress located within that cell.

75. Therefore, having identified those matters which are not in issue, I will now outline my findings on the contested issues, being whether the accused had ‘possession’ of the buprenorphine strips and the ‘shiv’. I will begin with sequence 1.

76. The evidence in the prosecutor’s case relating to sequence 1 involved a combination of both direct evidence, and circumstantial evidence. The direct evidence was the evidence of Mr Wilson and the accompanying CCTV and BWV footage which I earlier summarised. None of the other witnesses in the prosecutor’s case gave any direct account of any observations of the accused and his alleged possession of the buprenorphine strips. The circumstantial evidence was the DNA evidence, which I earlier outlined.

77. I found Mr Wilson to be an honest and reliable witness beyond reasonable doubt because:

1. Despite cross examination, he maintained the evidence he gave in his examination in chief, he was direct and forthright in his answers and his evidence remained internally consistent;

2. His observations about the incident were also not undermined in any way, and his evidence did not conflict with any objective evidence adduced in the proceedings, such as the CCTV footage nor the BWV footage. I will comment on this further shortly; and

3. He also made fair concessions in his evidence. For example, he conceded that when he approached the accused after the physical altercation with the other inmate, the accused obeyed his directions. My overall impression was that Mr Wilson was careful not to unfairly implicate the accused. In other words, his evidence was a fair and balanced account of his observations.

78. Mr Wilson said he had a clear line of sight to the accused at the relevant moment when he reached into his pocket to remove the blue packaging containing the buprenorphine strips, and was within 10 metres of him when this happened.

79. I accept that the CCTV and the BWV footage do not clearly show the accused reaching into the pocket of his pants, however Mr Wilson said in his evidence that he observed this to happen. The inmate in the black shirt obscures some of the view of the accused’s actions immediately prior to, and at, the moment when the accused passes him his shirt. Indeed at that moment, at the 1 minute 12 second mark of the BWV footage, Mr Wilson demands that the inmate pass him the shirt, consistent with him having observed something, but the inmate refuses to do so and instead passes the shirt to another inmate. The BWV camera, however, is also of course not situated at Mr Wilson’s eye level and hence the fact the accused cannot be seen, from that perspective, to place his hands in his pockets in that footage is not determinative of what Mr Wilson observed, nor does it undermine my assessment of Mr Wilson’s powers of observation.

80. There was also nothing in the CCTV footage, taken from the other angle above the doors of the cell block, that would suggest the accused did not place his hands in his pockets, based on Mr Wilson’s evidence. That Mr Wilson was not able to identify the precise moment the accused placed his hands into his pockets by reference to the CCTV and BWV footage is inconsequential because he recalled he had a clear line of sight to the accused at the time he made that observation about the accused. It suffices that the observation was made at a time when he attended on the accused shortly after the altercation and at a point physically proximate to the accused. For the same reason, the fact Mr Wilson did not immediately raise concerns with the accused about his discovery of the blue packaging is inconsequential, including because at that time, Mr Wilson did not know what the package was.

81. The accused passed his shirt to the other inmate in the black shirt shortly after the altercation, and once Mr Wilson had arrived to give directions to the accused following that altercation. It was at that moment that the blue packaging containing the buprenorphine strips fell to the ground. Contrary to Mr Wilson’s request, the accused’s shirt was then ultimately passed to the inmate who abruptly runs off away from Mr Wilson with the accused’s shirt and inside the cell block. That inmate was ultimately apprehended. It is clear from the BWV footage that neither the accused, nor the inmate in the black shirt, nor the inmate who runs off with the accused’s shirt, see the blue packaging fall to the ground.

82. Clearly there was a reason why it was thought necessary to take the accused’s shirt and run away with it at that moment. The inescapable conclusion is that there was known or thought to be something nefarious associated with the accused’s shirt. There was no other explanation for that behaviour. On Mr Wilson’s evidence, which I have accepted, the accused had placed the blue packaging into the shirt. The fact one of the inmates ran off with the accused’s shirt obviously would not be sufficient of itself to establish the offence, but rather it provides some support for the prosecutor case. That evidence has not, however, made any material difference to my overall findings.

83. In cross examination, Ms Sesardic said that the DNA sample relating to the blue packaging containing the buprenorphine strips contained a mixed profile and there was not enough DNA sample available to identify the additional contributors. She said some individuals shed more DNA than other individuals and that indirect transfer of DNA can occur. She said saliva was a good source of DNA and body sweat was a poor source of DNA. She said that a secondary transfer of DNA can occur if someone was sharing the same surface as another person. She said that DNA could remain on an item longer if the item contained a porous surface.

84. Ms Sesardic was asked specifically whether in the custodial environment, secondary transfer of DNA was more likely to occur than in the general population, and she responded that it was difficult to answer that question, but observed that cohabitation environments can result in the transfer of DNA. In re-examination, she said that in respect of towels and bedding, the period that DNA can remain on an item depends on the amount of DNA and the conditions of the bedding and towel. She said DNA can potentially stay on an item for years.

85. Consistent with the decision in R v Borg, and noting the limitations of the use of DNA evidence, including the observations and concessions Ms Sesardic made in cross examination, if the DNA evidence was the only evidence linking the accused to the buprenorphine strips, the evidence would not be sufficient to prove beyond reasonable doubt that the accused had possession of those drugs, due to the potential incidence of secondary DNA transfer in all the circumstances.

86. Mr Rodgers and Mr Hill were also both cross examined, but I do not consider that their evidence raises any doubt about the overall strength of the evidence in the prosecutor’s case. Neither Mr Rodgers nor Mr Hill gave any direct evidence about the incident involving the discovery of the blue packaging containing the buprenorphine strips. The focus of their cross examination related to the investigation of the incident, including the preparation of the incident report, and in the case of Mr Rodgers, the drafting and content of the initial/original fact sheet and the lack of any search or questioning of other inmates.

87. As I have observed, ultimately the outcome of sequence 1, insofar as concerned the evidence in the prosecutor’s case, turns on the direct evidence of Mr Wilson, as well as the DNA evidence. Nothing that Mr Rodgers said in his evidence casts any reasonable doubt on Mr Wilson’s evidence or the DNA evidence.

88. The evidence in the prosecutor’s case revealed that another correctional officer, being Mr Brookbank, was present at the time Mr Wilson interacted with the accused at the moment shortly after the physical altercation. Mr Brookbank was therefore proximate to the accused at the time when Mr Wilson observed him to place his hand into his pocket to remove the blue packaging containing the buprenorphine strips. Mr Brookbank did not give evidence in the prosecutor’s case, and thus although the principles in Mahmood v Western Australia (2008) 232 CLR 397 are relevant here, the weight of the other evidence in the prosecutor’s case means, to my mind, that the absence of evidence from Mr Brookbank does not raise any reasonable doubt.

89. When all the evidence in the prosecutor’s case is considered in context, the only possible alternative candidate who may have had possession of the buprenorphine strips appears to be the inmate in the black shirt. When the BWV footage is viewed closely, the blue packaging falls to the ground proximate to that inmate. The inmate, however, received the shirt from the accused and consistent with the direction of that movement, and proximate to that moment, the blue packaging falls to the ground.

90. The combination of Mr Wilson’s direct evidence and the CCTV and BWV footage, together with the high degree of certainty about the DNA sample taken from the packaging of the buprenorphine strips, which identified the accused’s DNA on that item, is such that I do not consider it would be reasonable to conclude that the other inmate in the black shirt was a person who had possession of the prohibited drugs. There is a remote possibility the accused’s DNA could have been transferred from his shirt to the blue packaging without the accused, prior to that moment, having directly contacted that packaging, however, as Ms Sesardic observed, body sweat is a poor source of DNA, and the direction and timing of the movement combined with Mr Wilson’s observations leads me to conclude that such a finding would not be a rationale one.

91. Accordingly, the evidence in the prosecutor’s case, taken as a whole, satisfies me beyond reasonable doubt that immediately after the physical altercation, the accused retrieved the buprenorphine strips from the pocket of his pants, placed those strips inside his shirt and passed the shirt to the inmate in the black shirt. The only reasonable and rationale inference in the circumstances therefore, on the evidence adduced in the prosecutor’s case, was that the accused had intentional control and knowledge of the buprenorphine strips, and hence that he had possession of the said prohibited drug. I do not consider, based on the evidence adduced in the prosecutor’s case, that there is any reasonable inference consistent with the innocence of the accused in respect of buprenorphine strips. I find, based on all the evidence in the prosecutor’s case, that there was no other explanation for why the accused’s DNA was found on the blue packaging other than that he must have had physical possession of that packaging.

78. The only question remaining, therefore, in respect of sequence 1, was whether the accused’s evidence causes me to have any reasonable doubt about his guilt. The accused denied any prior knowledge of the buprenorphine strips and denied passing the blue packaging to the other inmate. If that evidence raises reasonable doubt, the accused would be entitled to the benefit of that doubt and a verdict of not guilty must be entered.

79. I do not consider, however, that the accused’s evidence raises any such doubt, even though in cross examination, he stridently adhered to his denial of knowledge of the buprenorphine strips. The combination of the objective evidence, being the BWV footage showing the accused passing his shirt to the other inmate and the buprenorphine strips falling to the ground proximate to that location and at that moment, and based on the force of the evidence to which no objection was taken, namely the DNA evidence the effect of which I earlier summarised, satisfies me that the accused’s evidence does not cast any reasonable doubt on the observations Mr Wilson made about the accused’s handling of the buprenorphine strips, and hence his knowledge and intentional control of those drugs.

80. Having regard to the whole of the evidence, I accept Mr Wilson’s observations as honest and reliable beyond reasonable doubt, and I am not satisfied that there is a reasonable explanation of the facts consistent with the accused’s innocence. I am satisfied beyond reasonable doubt that the prosecution has proved that the accused committed the offence comprised in sequence 1 and I enter a verdict of ‘guilty’.

81. I now turn to sequence 2.

82. Unlike sequence 1, the prosecutor’s case in respect of sequence 2 was wholly circumstantial. There was no direct evidence that the accused had intentional control and knowledge of the weapon, being a ‘shiv’. Rather, the circumstances relied upon in the prosecutor’s case were the DNA evidence in respect of the shiv, which I earlier outlined, and the location where the shiv was found, being under a mattress in the accused’s cell.

83. Mr Hill confirmed in cross examination that the cells of the inmates were open during the day, allowing other inmates to go in and out freely. Mr Wilson also said in cross examination that on 7 July 2021, inmates may have been allowed to go in and out of their cells, and the cells of fellow inmates.

84. There was also at least some evidence that the accused shared his cell, being cell 19, with another inmate known as David Keown. Mr Little maintained in cross examination that only the accused occupied the cell. Despite Mr Little’s evidence, there is at least some reasonable doubt about this based on other evidence adduced in the prosecutor’s case. The evidence in the prosecutor’s case included the incident report number 29745 which recorded that the accused shared his cell with another inmate. I note that Mr Shepherd’s evidence in cross examination on this matter was equivocal.

85. I also accept that the evidence in the prosecutor’s case was unclear about which mattress under which the shiv was found in the cell, noting that there was no footage taken of the search. Mr Little confirmed in his evidence that, although he believed only the accused occupied cell 19, it was a cell with 2 beds. He observed that the second bed was an ‘overflow’ bed.

86. I earlier observed the conceded limitations in relation to DNA evidence. Those observations apply equally to the charge comprised in sequence 2, having regard to the type of item and the circumstances in which it was found. In summary, I am referring here to the prospect of secondary transfer of DNA within an environment such as a custodial setting.

87. Expressed in simple terms, on the evidence adduced in these proceedings, it is at least reasonably plausible that, if the accused’s DNA was transferred to bedding sheets in his cell, and the shiv has contacted those sheets, his DNA may have transferred to that item without his knowledge. The evidence in the prosecutor’s case was that other inmates were able to access the cells occupied by their fellow inmates, and the accused may also have shared a cell with another inmate. Evidence about the re-arrangement of, and potential interference with, bedding sheets used by an inmate in this context, such as the accused, was unclear.

88. It is therefore at least reasonably plausible to say that there was an opportunity for the shiv to have been placed in the accused’s cell by someone other than the accused, and for the accused’s DNA to have been transferred onto that item, via, for example, his bedding sheets, without his knowledge.

89. The accused gave evidence denying any knowledge of the shiv. I earlier rejected his evidence denying knowledge of the buprenorphine strips, and therefore although this indicates a lack of confidence in his evidence, I am satisfied, based on the evidence in the prosecutor’s case, that there is nonetheless a reasonable explanation of the facts consistent with the accused’s innocence. As I said earlier, the difficulty with this charge was, unlike sequence 1, the absence of direct evidence of the accused’s knowledge of the shiv.

90. This finding should not be understood to mean that I do not have suspicions about the accused’s guilt. As I observed earlier, suspicion is not a substitute for proof beyond reasonable doubt.

91. I am not satisfied beyond reasonable doubt that the prosecution has proved that the accused committed the offence comprised in sequence 2 and I enter a verdict of ‘not guilty’ and the charge is dismissed.

Magistrate Scott Nash

Kempsey Local Court

9 November 2022

**********

Decision last updated: 10 November 2022