Prosser v Police - [2007] SASC 280

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PROSSER v POLICE
[2007] SASC 280
Judgment of The Honourable Justice David
25 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE
Criminal law – Magistrates Appeal – appeal against conviction – dishonesty offences – non-aggravated serious criminal trespass – dishonestly taking property – whether magistrate reversed the onus of proof – whether verdict against the weight of the evidence – DNA evidence – magistrate correctly directed himself as to the onus of proof – sufficient evidence to disprove hypothesis – verdict correct – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134(1), s 170(1), referred to.
Knight v The Queen (1992) 175 CLR 495; R v Hetherington (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Nyland, Mohr and Debelle JJ, 24 August 1994); R v Shueard (1972) 4 SASR 36, applied.
Liberato & Ors v The Queen (1985) 159 CLR 507, discussed.

PROSSER v POLICE
[2007] SASC 280
Magistrates Appeal

DAVID J. This is an appeal against conviction. After a trial in the Magistrates Court, the appellant was found guilty of one count of non-aggravated serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935(SA) and one count of dishonestly taking property without the owner’s consent, contrary to s 134(1) of the Criminal Law Consolidation Act. It was alleged that both offences occurred at some time between 10.40 pm on Christmas Eve and 7.25 am on Christmas Day 2004, when the appellant broke into a unit and stole a number of items valued in excess of $18,000. The appellant now complains that the magistrate erred in his reasons in reversing the onus of proof and, further, argues that the verdict of guilty was against the weight of evidence.
The Evidence
There was no dispute that the unit, which was the subject of the charge, was broken into on Christmas Eve or Christmas Day 2004. There were a number of affidavits tendered at trial which attested to that effect. The appellant was arrested in December 2005 and denied the allegations. Only one witness was called by the prosecution to give evidence at trial, and was subjected to cross‑examination, a forensic scientist, Dr Katrin Both.
After discovering the robbery, the occupier of the unit had found a fragment of the finger of a rubber glove caught in the teeth of the zipper of a “zip up wardrobe”. The fragment was removed and given to the investigating police officer, who described it in his affidavit as resembling “the fingertip section of a rubber glove”. The fragment was submitted for DNA testing, and it was undisputed that DNA found on that part of the glove matched the DNA of the appellant. That evidence was the only evidence linking the appellant to the crime scene.
At trial, the appellant gave evidence on oath, denying that he broke into the unit and stole the material as alleged. He said that at the time of the offences he was living at a lodging house, which was located near the unit which was broken into. The appellant gave evidence that about 40 to 60 people, mainly ex‑parolees and mental patients, inhabited the lodging house. He said that during the relevant period of time the lodging house was often very dirty and he may have used gloves to clean it. The appellant said that he might have worn rubber gloves during these occasions, although he could not specifically remember doing so. He said that he would not have worn rubber gloves at any other time. In evidence‑in‑chief at trial, the appellant was asked by his counsel for an explanation as to how his DNA might have been found on the tip of the rubber glove which had been left inside the premises which were the subject of the charges. The appellant gave the explanation that someone may have taken the glove out of a bin at the lodging house where he was living.
In cross-examination the appellant admitted that he had a drug habit at the time that the unit was broken into. This evidence was relevant to the question of a motive for robbery, as distinct from showing bad character. The appellant said that at the time he was also suffering from slight depression. He said that he had never visited the unit which was the subject of the charge and did not know the owner. He denied the charge.
The trial magistrate found the appellant guilty, and it is against that finding that he now appeals.
Arguments On Appeal
The appellant argues that the magistrate has misdirected himself in his reasons on the important question of the onus of proof and has, in fact, reversed the onus. In particular, the appellant argues that the magistrate erred when he said:
I must consider whether Mr Prosser’s evidence gives rise to a reasonable doubt as to whether he was the thief. Liberato & Ors v The Queen (1985) 159 CLR 507 at 515.
Mr Richards, counsel for the appellant, vigorously argues that this is an incorrect statement of the law concerning the onus of proof in a criminal case. In isolation, he is clearly correct. It is wrong to suggest that a defendant in a criminal trial has to have his evidence perused as to whether it “gives rise to a reasonable doubt”. There is no onus upon a defendant to establish anything; it is for the prosecution to disprove the defendant’s answer to the charge beyond reasonable doubt. However, those remarks are not to be taken in isolation. Leading up to that passage the magistrate said:
It is of course, for the prosecution, to prove its case beyond reasonable. It is not for Mr Prosser to disprove the case alleged against him.
The magistrate then went on to recite the passage complained about.
The magistrate then went on to consider the explanation given by the appellant as to how his DNA could have been deposited on the glove as a means of considering whether there was a reasonable hypothesis consistent with innocence. His conclusion was that the hypothesis was “speculative”. He then went on to consider that hypothesis forwarded by the appellant and rejected it. In doing that he considered an argument presented at the trial (and on appeal) that someone else might have used the glove. The magistrate said in his reasons:
The hypothesis that the glove was taken to the unit by another person, even accepting Mr Prosser’s lifestyle and living circumstances at the time, is a bare and remote possibility.
I find that the magistrate has expressed himself very badly. References to defence hypotheses having a “bare and remote possibility” are unfortunate. The magistrate should have clearly stated that it had been proved beyond reasonable doubt that any hypotheses consistent with innocence did not exist. References to bare and remote possibilities are, to say the least, confusing. However, looking at the magistrate’s directions on the onus of proof as a whole, it is clear that he was directing himself that the prosecution case had to be proved beyond reasonable doubt, and the unfortunate language whereby it was suggested that the onus of proof was reversed was his way of dealing with the explanations and the evidence presented by the defence. It did not impinge upon the overall direction that he had given himself that the prosecution case must be proved beyond reasonable doubt.
The appellant also argues that the verdict is against the weight of the evidence. He submits that there was a version of events presented at trial consistent with his innocence, and because it was not rebutted by prosecution evidence it should have resulted in an acquittal.
An appellate court has the power to quash a conviction as being against the weight of the evidence, if the evidence reveals a reasonable hypothesis consistent with innocence.[1] This principle applies equally to verdicts arising out of trials by jury or by judge alone.[2]
[1] Knight v The Queen (1992) 175 CLR 495, 502‑503; R v Shueard (1972) 4 SASR 36, 39.
[2] R v Hetherington (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Nyland, Mohr and Debelle JJ, 24 August 1994) 4.
There was no dispute that the offences had been committed. The only issue was whether it was the appellant who had committed the offences. At trial, the forensic scientist, Dr Both, gave evidence that the DNA in the glove was consistent with that of the appellant, and that the chance of finding another person with that same DNA profile was less than one in one billion. She also testified that there was no second DNA profile present in the fingertip of the glove. She gave evidence that whether or not someone will leave DNA on an object depends on how long they come into contact with the object for, and whether they are a “shedder” or a “non‑shedder”. When put to Dr Both in cross‑examination that a person would not leave DNA in the fingertips of a glove if their fingers did not reach the tips, she stated that this was a possibility. However, she also stated that latex gloves usually fit well.
When giving evidence, the appellant suggested that the person who had committed the offences must have worn a pair of rubber gloves that he had previously worn when cleaning at the lodging house where he was residing. He suggested that this explained why his DNA was found in the fingertip of the glove. When examined at trial he stated that he did not know where he had got the rubber gloves from for cleaning but knew that the cleaners had rubber gloves. He could not describe the rubber gloves he had used for cleaning. He did not have any memory of a particular occasion on which he had used rubber gloves to clean the lodging house, but thought that he had “probably” done so on two or three occasions.
The question which needs to be addressed in this case is whether the prosecution has disproved the appellant’s hypothesis or whether there is a reasonable doubt about the appellant’s guilt. Dr Both’s evidence was that there is only one DNA profile in the glove’s fingertip. Her evidence also suggested that if another person had worn the glove you would expect to find a second DNA profile, but perhaps not in the fingertip of the glove if that had not come into contact with the wearer’s fingers. However, she said that latex rubber gloves usually fit well, allowing the inference to be drawn that it was unlikely someone had worn the glove without depositing DNA in the fingertips. In order for the appellant’s hypothesis to be given any weight, one would need to believe that:
·the appellant did in fact use the gloves for cleaning at the lodging house, even though he could not specifically remember an occasion on which this had occurred, could not remember where he had obtained the gloves from and could not describe the gloves he had used;
·the gloves were disposed of somewhere around the lodging house;
·a second person retrieved the gloves;
·the gloves fit so loosely on the second person’s hands that DNA was not deposited in the fingertips, despite that person wearing the gloves to open doors, drawers and cupboards and to pick up objects in the unit; and
·the second person decided to wear the gloves to commit the offences, despite their ill fit.
I bear in mind that the magistrate had the advantage of seeing the witnesses give their evidence. The magistrate found that the prosecution had presented sufficient evidence to rebut the appellant’s hypothesis and prove the case beyond a reasonable doubt. In my opinion, this was the correct finding. The prosecution clearly proved the case beyond a reasonable doubt.
Conclusion
I dismiss the appeal.