Pettersen v The The King

[2022] NSWDC 512

District Court

New South Wales

Medium Neutral Citation:

Pettersen v R [2022] NSWDC 512

Hearing dates:

26 October 2022

Date of orders:

26 October 2022

Decision date:

26 October 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   Appeal allowed.

(2)   I set aside the conviction and the penalty imposed by the magistrate.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

Legislation Cited:

Crimes (Appeal and Review) Act2001

Weapons Prohibition Act 1998

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

R v Hillier (2007) 228 CLR 619

The Queen v Baden-Clay (2016) 258 CLR 308

Category:

Principal judgment

Parties:

Neil Andrew Pettersen (Appellant)
Regina (Crown)

Representation:

Counsel:
S Odgers SC (Appellant)

Solicitors:
Berrell Tinker Solicitors (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2021/77442

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Local Court

Date of Decision:

24 February 2022

Before:

Magistrate Virgo

Judgment

1. On 24 February 2022 Neil Andrew Pettersen (the appellant) was convicted of an offence of possess prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998 (the Act), by a magistrate sitting at the Downing Centre Local Court. The appellant brings an appeal as of right against that conviction.

2. On 18 March 2021 police searched a self-storage unit at Camperdown (the unit) and located a soft armour vest (the vest) in a black material carry bag with a zipper. The vest fell within the definition of a prohibited weapon and the appellant was not authorised by a permit to possess the vest.

3. The search of the unit was filmed and the video recording of the search was in evidence.

4. The unit was rented in the name of the appellant’s girlfriend. The appellant visited the unit on a number of occasions prior to 18 March 2021 and stored property owned by him in the unit. The appellant also allowed a person, Tyrone Priest, to store items in the unit. The vest belonged to Mr Priest.

5. The prosecution case was that the appellant was in possession of the vest, pursuant to the extended definition of “possession” in s 4 of the Act. The appellant accepted that if he knew that the vest was stored in the unit he had “possession” of it, for the purposes of s 7 of the Act.

6. In an electronically recorded interview with police, the appellant denied any knowledge of the presence of the vest in the unit. There was evidence that Mr Priest had stored the vest in the unit without the appellant’s knowledge.

7. A tape lift from the inside of the collar of the vest contained DNA. The appellant could not be excluded as the major contributor to that DNA and he did not dispute that the sample included his DNA. The prosecution case was that the appellant’s DNA was deposited on the vest by the appellant touching it when it was in the black bag in the unit, thereby establishing his knowledge of its presence in the unit.

8. The appellant’s case was that the prosecution evidence could not exclude all reasonable hypotheses as to how the DNA was deposited on the vest that were consistent with innocence. The appellant contended that it was possible that the appellant’s DNA was transferred to the vest by one of the police officers who searched the unit and inadvertently picked up the appellant’s DNA from another item in the unit before transferring some of that DNA to the vest.

9. Alexandra Bate, an expert called by the prosecution, gave evidence that while the appellant could not be excluded as the major contributor to the DNA found on the vest, he could be excluded as a major contributor to the DNA found on the handles and zipper pulls of the bag in which the vest was located. There were at least three minor contributors to the DNA sample taken from the handles and zipper pulls but it was of insufficient quantity for comparison purposes. Ms Bate’s evidence as to the appellant’s argument was that if DNA from another item in the unit was transferred to the police officer’s gloves it would be unlikely to find a sufficient sample on an item inside the bag, but not on the handles and/or zipper pull, because each time an item was touched some of the DNA on the gloves would have been lost. In cross-examination, Ms Bate accepted that it was possible that the police officer could have picked up the appellant’s DNA on his gloves and transferred it to the vest after he initially opened the bag and took the vest out.

Relevant Law

10. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].

11. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].

12. Whilst the magistrate’s reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].

13. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

14. An appeal to the District Court under s 18 requires the demonstration of factual, legal, or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).

15. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).

16. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).

17. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

18. To the extent that the prosecution case rests on circumstantial evidence, a court cannot convict unless the prosecution has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46] and [50]. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: R v Hillier (2007) 228 CLR 619 at 661.

Analysis of the Magistrate’s Reasons

19. The magistrate correctly identified the issue as to whether there was a rational explanation or hypothesis consistent with innocence that explained how the appellant’s DNA was found on the vest without the appellant placing it there himself by some means. In other words, if it was reasonably possible that the appellant’s DNA was located where it was found without the appellant himself placing it there by some means, the element of knowledge could not be proved beyond reasonable doubt.

20. She reasoned that even if she accepted that the DNA had been transferred from another item in the unit on the police officer’s gloves to the vest, that did not explain the lack of a significant trace of the appellant’s DNA on the handles and/or the zipper pull, which on the basis of Ms Bate’s evidence should have retained more DNA than the vest. On this basis, she rejected the appellant’s argument.

21. I would respectfully disagree with this reasoning process for the reasons that follow. Ms Bate accepted that it was possible that the police officer could have transferred the appellant’s DNA to the vest without leaving a significant profile on the handles and/or zipper pull. She stated that scenario was unlikely, but that is not the same as excluding a reasonable possibility and it could have occurred. Further, the magistrate did not consider if the police officer used a different hand or fingers to touch the different locations or if the DNA was picked up by the police officer after he had initially opened the bag.

22. I am satisfied that the magistrate fell into error in this reasoning process.

Consideration

23. Having conducted an independent review of the evidence, I am not satisfied beyond reasonable doubt that the prosecution excluded all reasonable hypotheses consistent with innocence, for the reasons that follow.

24. It was common ground that the appellant regularly accessed the unit and stored items belonging to him there. It was probable that the appellant’s DNA was present in the unit on other items.

25. It was also common ground that the police officer who located the vest, Sergeant Scott, touched a number of other items in the unit before he touched the vest after he had changed his gloves and this is clearly depicted on the video of the search of the unit.

26. The vest was touched by another officer, Detective Senior Constable Redmond, just after it was removed from the black bag, to allow Sergeant Scott the opportunity to examine the remaining contents of the bag, being a short wooden handle and a shoulder strap. DSC Redmond appears to handle the side of the vest, whereas Sergeant Scott appears to handle the collar area of the vest where the DNA sample was taken from.

27. After locating the vest in the black bag, Sergeant Scott takes it out of the unit into an adjacent hallway. At that point, not all of his movements are recorded on the video, but some are. It is clear from the footage that he handles the vest outside and inside the bag on a number of occasions.

28. Taking into account all of the evidence, I am satisfied that it was reasonably possible that the appellant’s DNA was transferred to the vest by Sergeant Scott either at the time it was located by him, or subsequently outside of the unit, or by DSC Redmond when he handled the vest just after it was removed from the black bag.

Orders

29. The orders I make are as follows:

1. Appeal allowed.

2. I set aside the conviction and the penalty imposed by the magistrate.

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Decision last updated: 27 October 2022