R v Duncan

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNCAN
[2011] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)
18 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - SUBSTITUTED VERDICT OR JUDGMENT
Appeal against conviction – trial by judge alone – appellant convicted of one count of aggravated robbery contrary to s 137(1) Criminal Law Consolidation Act 1935 (SA) – case against appellant based on circumstantial evidence – whether conviction is unsafe and unsatisfactory – whether trial judge considered the circumstantial evidence in correct way – whether there was a reasonable hypothesis consistent with innocence.
Held (Peek J; Doyle CJ and Kelly J agreeing): appeal allowed – conviction set aside and verdict of acquittal substituted – a list of matters that the trial judge found to be too unlikely to be genuine coincidences could not be characterised as independent matters – the improbability of the defence case was far less than as assessed by the trial judge – the verdict was unreasonable as the evidence adduced was insufficient to prove the charge beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 352, referred to.
R v Bilick and Starke (1984) 36 SASR 321, applied.
Martin v Osborne (1936) 55 CLR 367; Pfennig v The Queen (1995) 182 CLR 461 in R v Keir [2002] NSWCCA 30; Perry v The Queen (1982) 150 CLR 580; M v The Queen (1994) 181 CLR 487; R v Nguyen (2010) 85 ALJR 8; Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, considered.

R v DUNCAN
[2011] SASCFC 46
Court of Criminal Appeal: Doyle CJ, Kelly and Peek JJ

DOYLE CJ. I agree with Peek J that the evidence before the Judge was not capable of supporting a conclusion, beyond reasonable doubt, that the appellant was guilty of the offence. The evidence, in my opinion, does not support an inference that is capable of excluding as a reasonable possibility the explanation that Mr Duncan gave. I agree with the orders proposed by Peek J.
KELLY J. I agree with the orders proposed by Peek J. I agree generally with his reasons.
PEEK J. This is an appeal against conviction of aggravated robbery.
Introduction
The appellant was charged jointly with Sigh Keith Wilton (hereafter Wilton) with aggravated robbery on the following Information:
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Matthew Karl Duncan and Sigh Keith Wilton on the 1^st day of May 2008 at Highbury, threatened to use force against Christine Anne Row in order to commit the theft of $736.92 and the threat was made immediately before and at the time of the theft.
It is further alleged that Matthew Karl Duncan and Sigh Keith Wilton used offensive weapons, namely knives, when committing the offence.
It is further alleged that Matthew Karl Duncan and Sigh Keith Wilton committed the offence in company with each other.
Both accused pleaded not guilty and elected for trial by judge alone. The trial commenced on the 7 June 2010. Near the close of the prosecution case Wilton pleaded guilty. The trial proceeded against the appellant and concluded on 23 June 2010 when the trial Judge adjourned to consider his verdict. His Honour entered the verdict and published his reasons on 5 November 2010.
The events of 1 May 2008
The following matters are not in dispute. At about 9.30am on 1 May 2008, the accused’s vehicle, a Holden Camira station wagon (hereafter the “Camira”) was filmed by a security camera arriving at the Coles Express Service Station on OG Road at Klemzig. There was a black sedan at the adjacent pump. Wilton was filmed paying at the service desk for petrol for each of the two vehicles and for some cigarettes. He was wearing a white baseball cap and a dark hooded jacket which included the word “Eminem” on its front. He got back into the passenger front seat of the Camira which left the service station at about 9.40am. It was not possible to discern who else was inside.
The Camira was next seen by the witness Mr Wegener who was working at the back of his shop at the Highbury Shopping Centre and observed the Camira driving north on Valerie Avenue behind the shops. He said there were three people in the vehicle and that the driver was Aboriginal in appearance and 18 to 20 years old. He could not discern any detail in relation to the other occupants. He saw the vehicle turn left into Lower North East Road and, after what must have been a minute or so, saw it return, driving this time south on Valerie Avenue and stopping 50 metres further down on Valerie Avenue.
The driver, who was the only person in the Camira, alighted, put up the bonnet and after a while closed it and sat inside apparently waiting. Mr Wegener, in the course of these observations, shifted position and took the registration number. The clear inference is that Wilton and his accomplice were dropped off around the corner in Lower North East Road and proceeded on foot into the Centre and to the Post Office while the driver waited at the back of the shops.
The robbery
A witness, Mr Blight, who was early for his 10.30am medical appointment at the surgery in the Centre, was walking about “killing time”. He observed two young men – clearly Wilton and his accomplice – first sitting on the wall outside the Post Office and then entering the Post Office. He described them both as in their late teens, slim build with brown skin.
At the time of the robbery, which occurred between 10.15 and 10.30am, the manager, Ms Row, was in the rear section of the premises engaged in photocopying documents for the late Ms Pamela Davis, who was the only customer then in the Post Office. Both Ms Row and Ms Davis described how Wilton and his accomplice, armed with similar large kitchen knives, robbed the Post Office of $736.92. That sum was made up of ten $50 notes and nine plastic resealable bags, which not only contained coins but also some hand written notes made by Ms Row. The money was carried off the premises by the two men in a grey plastic Australia Post letter tub which was provided to them by Ms Row. During the course of the robbery Wilton and his accomplice, each brandishing a knife, threatened persons and demanded money. The two women described the robbers. While the appellant can not be excluded, the evidence falls far short as identifying him as one of the robbers.
Wilton and his accomplice made their way back to the Camira in Valerie Street and left the scene. Police were alerted and were on the lookout for the vehicle. At about 11.13am a police patrol caught sight of it heading west on Muller Road. The accused was driving and Wilton was a front seat passenger. They were followed into Regency Road and then into Tralee Avenue, Broadview, where they stopped in a parking area near a car detailing business. Both Wilton and the accused alighted from the vehicle. Police approached and detained them. The accused told Senior Constable Perkins that the Camira was his. In response to being told that it had just been involved in a robbery, the accused said “Robbery? I just got up”.
The search of the appellant, Wilton and the Camira
By this time other police had discovered the grey plastic Australia Post letter tub in the rear of the Camira. Both Wilton and the accused were then arrested. During a search at the scene of the arrest, police found inside Wilton’s bum-bag $190 in cash including three $50 notes and a plastic coin bag containing ten 50c pieces. The appellant had one $50 note in his jeans pocket.
A search of the Camira revealed, as well as the grey plastic Australia Post letter tub, two wooden handled serrated edge steak knives found tucked in between the two front seats. However, his Honour found that the knives were not those used in the robbery since they did not fit the description given by Ms Row and Ms Davis and were too small.
The search of the 40 McLauchlan Avenue property
The police then searched the property at 40 McLauchlan Avenue. In a bedroom, designated bedroom number 1, police discovered personal effects which showed that the appellant occupied the bedroom. In a cupboard or linen press in the hallway police discovered four plastic press-seal bags containing coins and handwritten notes which Ms Row from the Post Office subsequently identified as hers. There is no dispute that the coins were the proceeds of the robbery that morning. In the shed at the rear of the house police located and seized, inter alia: a navy beanie with red and white stripes through it, a hooded “Eminem” top, a Nike zip-up jacket, a Rip Curl baseball cap, a large kitchen knife with blade of about eight inches, a blue high collar jacket, a dark plain beanie, gloves and dark track pants. This seized clothing roughly accorded with the clothing descriptions given by Ms Row and Ms Davis.
Apart from the last item listed above, namely the dark track pants, these garments were submitted for DNA testing and the results were particularised in an Agreed Statement of Facts. In each case, the appellant was either positively excluded as a contributor or the results were inconclusive. Wilton, on the other hand, was directly implicated in the robbery by his DNA being found on some of the discarded clothing.
The appellant’s evidence
The appellant gave evidence at trial. He stated that he was 33 years old, of Aboriginal descent and that at the time of the robbery he had been residing at 40 McLauchlan Avenue for some three weeks. The house, he said, was rented by Denise Varcoe, who is the mother of Francis Varcoe, who was then his partner. Accordingly, as at the date of the robbery, the occupants of that house were Denise Varcoe, John Varcoe and the appellant.
The appellant confirmed that he owned the Camira but stated that others in the house would habitually use it as well as other family members who visited the house. He stated that this included both the Varcoes and the Lindsays, Margaret Lindsay being the girlfriend of Wilton at the time. He added that the car was a “bomb” he had bought for $500 and was either left in the driveway or out on the street in front of the house and that the keys were left in the ignition or in the glove box.
He stated that on the evening before the morning of the robbery, he went drinking with a friend, whom he later named as John Varcoe. He recounted driving to a house in Pooraka with John Varcoe and drinking there with a group of friends. He said that he and John Varcoe arrived back home at about 2 or 3 o’clock in the morning of 1 May 2008 after which he got into his swag in the lounge room and settled down to watch Foxtel. He said that John Varcoe had parked the Camira in the driveway and added that Sigh Wilton did not sleep at the house that night.
The appellant stated that Wilton arrived at the house the next morning and asked the appellant to drive him to his home in Royal Park in order to collect his girlfriend Margaret Lindsay and then return to the Royal Adelaide Hospital where his, that is Sigh Wilton’s, father was an inpatient and terminally ill. He had known Sigh Wilton for a few years and had met him through family connections. He said that Wilton lived at Royal Park with his partner, Margaret Lindsay.
The appellant said that he was suspended from holding or obtaining a driver’s licence but nonetheless agreed to do as Wilton wished. While driving with Wilton towards Royal Park, he noticed police behind him and turned off Regency Road into Tralee Avenue in the hope of avoiding them because of his concern about being apprehended for driving without a licence.
He said that when he got into the vehicle he did not notice the plastic grey Australia Post letter tub in the rear and nor was he aware of, or involved, in the robbery which had occurred that morning.
The subpoena as to persons associated with 40 McLauchlan Avenue
During the trial, the legal representatives of the accused sought the issue of a subpoena to the Commissioner of Police for the production of intelligence material relating to the premises at 40 McLauchlan Avenue, Windsor Gardens, with the objective of securing evidence that the house had a history of being frequented by persons who had demonstrated some propensity to commit crimes of the general type charged in this matter. Certain portions of the Intelligence Circulars were produced to the defence which were eventually admitted into evidence. The Circulars set out:
·WLL formerly of 40 McLauchlan Avenue, Windsor Gardens, is believed to be in possession of a semi-automatic pistol and has a history for armed robbery offences (see Exhibit D1-1);
·PJG of 40 McLauchlan Avenue, Windsor Gardens, as at 19 May 2010 had recently been arrested for theft, illegal use and driving whilst disqualified (see Exhibit D1-2);
·KL of 40 McLauchlan Avenue, Windsor Gardens, as at 15 October 2007 had recently been arrested for, inter alia, indecent language and has priors for, inter alia, breaks and robbery (see Exhibit D1-3); and
·ML of 40 McLauchlan Avenue, Windsor Gardens, as at 1 October 2007 had recently been arrested for aggravated robbery (see Exhibit D1-4).
Of the four named people, two were male and two were female.
The defence case
The defence case was that Wilton, and probably one or two others, borrowed the appellant’s vehicle from McLauchlan Avenue without the knowledge of the appellant. They put fuel in it and then used it as the getaway vehicle in the robbery which took place at about 10.15–10.30am. The appellant knew nothing of the robbery. He had had a late night and was asleep at 40 McLauchlan Avenue where had had been residing for some weeks. After the robbery, Wilton, alone or with one or both of his accomplices, called at 40 McLauchlan Avenue, discarded clothing and left some of the stolen coins in the linen press cupboard. Wilton awoke the appellant and asked him to drive him to Royal Park and the appellant agreed to do so. The circumstances surrounding his arrest shortly after were not disputed. The appellant pointed to his assertion on arrest that he had been asleep at the relevant time and to the Intelligence Circulars as indicating that the persons there referred to as having links to 40 McLauchlan Avenue were examples of the type of persons who might have been Wilton’s accomplices to the exclusion of the appellant.
The reasons of the trial Judge
His Honour’s reasoning was based on the correct premise that in a case of circumstantial evidence where the hypothesis of innocence requires the concurrent existence of a number of different matters, there may come a time when the number of such required matters is so great that the hypothesis of innocence becomes so improbable that it is to be dismissed as fanciful or, in other traditional words, as not a rational hypothesis.[1] His Honour sets out a series of propositions which I have numbered and to which I will later refer as propositions 1 to 7. Thus his Honour states:
[1]    Cf Martin v Osborne (1936) 55 CLR 367.
[57]Finally, the accused’s account invites an acceptance that he has been the victim of a conjunction of the following coincidences:
(1)     That unbeknown to the accused on the 1 May 2008 his car is taken from 40 McLauchlan Avenue, fuelled and used in a robbery which occurs at about 10.30am;
(2)     That at the time he is alone and sleeping at 40 McLauchlan Avenue;
(3)     That within a short time of the robbery the robber Wilton with or without his accomplices arrives back at 40 McLauchlan Avenue and leaves incriminating evidence in the shed on the property (clothing) and in a cupboard in the house (coins);
(4)     That at about the time the incriminating evidence is left in the house the robber Wilton awakens the accused and requests him to drive him, Wilton, to Royal Park notwithstanding that Wilton has free access to the accused’s vehicle and has been using it anyway;
(5)     That at 11.13am, within three-quarters of an hour of the robbery, the accused is seen on Muller Road driving the getaway vehicle with the robber, Wilton, in the front passenger seat;
(6)     That in the rear of the vehicle is a grey plastic Australia Post letter tub clearly taken from the Highbury Post Office; and
(7)     That Wilton is in possession of three $50 notes and the accused has one $50 note in his pocket, and it just so happens that in the course of the robbery ten $50 notes are stolen.
[58]To accept that such a series of misfortunes could befall the accused within such a short time stretches the bounds of credulity.
“Coincidences” generally
One must be very careful when assessing a level of supposed “improbability” for the purpose of this approach. The word “coincidence” is often used in this context but it is important to bear in mind that while that word simply means a concurrent occurrence of two or more events without causal connection between them, it is often popularly used in an ironical or pejorative way as meaning “too much of a coincidence” – in other words, the improbability of two or more events occurring without causal connection between them is so high that a common causal connection is to be inferred.
As judges and commentators have often emphasised, true coincidences are happening all the time but are usually unobserved or unremarked upon because they have no particular significance for those persons in a position to observe them. Accordingly, when one does happen to notice what is in truth simply a striking coincidence, it is all too easy to jump to the wrong conclusion that it is not a coincidence at all but an indicator of causal connection.[2] This is a tendency that Australian Courts have been concerned to guard against; thus in Pfennig v The Queen,[3] McHugh J observed:[4]
The risk of prejudice in true similar fact cases is not from propensity reasoning but from the fact, as Murphy J pointed out in Perry v The Queen (1982) 150 CLR 580 at 594, that “[c]ommon assumptions about improbability of sequences are often wrong.” A jury may wrongly give the similar fact evidence far more weight than it deserves.
[2] See generally D Hodson, ‘A Lawyer Looks at Bayes’ Theorem’ (2002) 76 Australian Law Journal 109 and A Ligertwood, ‘Avoiding Bayes in DNA cases’ (2003) 77 Australian Law Journal 317.
[3] (1995) 182 CLR 461.
[4]
In Perry v The Queen[5] Murphy J had said:[6]
One danger is that the presumption of innocence tends to be brushed aside. In the criminal justice system every person is taken to be innocent unless the contrary is legally proved. No one should be found guilty on appearances, suspicions, conjecture or anything but evidence establishing guilt beyond a reasonable doubt.
In Mrs Perry’s case there is a very great temptation in weighing the evidence and more particularly in deciding admissibility, to ignore the presumption of innocence and to replace it with a presumption of guilt. The allegation that a number of the accused’s relatives died or suffered from arsenic poisoning immediately conjures up a highly suspicious prejudicial atmosphere in which the presumption of innocence tends to be replaced with a presumption of guilt. The presumption of innocence and the strict standard of proof required in criminal cases tend to be indirectly and subtly undermined from the outset by reference to a sequence of events which according to common human experience would not occur unless the accused were guilty. By a backdoor this tends to reintroduce the standard rejected in Thomas v The Queen [(1960) 102 CLR 584] that guilt should be judged “in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives”. It is very easy to assume that in common experience a person is hardly ever associated with poisonings of four close relatives, and that if such an association occurs it is so remarkable that it is unlikely to be innocent. Common assumptions about improbability of sequences are often wrong. A suggested sequence, series or pattern of events is often incorrectly regarded as so extremely improbable as to be incredible. However highly improbable, as well as merely improbable, sequences and combinations are constantly occurring. In random tossing the occurrence of a run of ten consecutive heads or tails is generally regarded as highly improbable. But this will occur on the average once in every 512 tosses, and the lesser sequences more frequently (2 runs of 9; 4 runs of 8; 8 runs of 7). If one randomly tosses a coin 257 times, more likely than not there will be a sequence of ten heads or tails. Although it is extremely improbable that any particular ticket will win a large lottery, it is certain that one will.
(Citation added)
[5] (1982) 150 CLR 580.
[6] Ibid 594-594.

As Sir Richard Eggleston concluded in an informative discussion of the pitfalls of estimations of probabilities in criminal cases generally (though in the context of identification cases in particular):[7]
What is important is that we should understand the conceptual basis on which we say that there is a high probability that the accused is the person who committed the crime. The melancholy example of Wigmore and McCormick, and of the prosecutor and the trial Judge in the Collins case, should be a salutary reminder that calculations of probability are not always as easy as they seem.
[7] Sir R Eggleston, ‘Identification’ (1978) 10 Australian Journal of Forensic Sciences 93. Sir Richard Eggleston is of course the author of the much acclaimed work Evidence, Proof and Probability (Weidenfeld & Nicolson, 1978).
“Coincidences” in the present case
I must say that in the present case I have difficulty with his Honour’s delineation of what are supposedly “independent” events in the sense that the concurrent happening of all of them is too unlikely as to be explained by genuine coincidence.
As to his Honour’s propositions 1 and 2, these are not independent matters; the assertion of sleep in proposition 2 is the reason asserted for the robbery being “unbeknown to the accused” in proposition 1. Further, it is difficult to see why the combined proposition 1-2 should be thought to be an inherently unlikely proposition in itself.
As to proposition 3, this is not a matter disputed as to occurrence or cause. It is simply an accepted fact that does not increase the improbability of any of the other matters in any way.
As to proposition 4, the reason apparently advanced as to why this is unlikely is that Wilton could have continued to use the appellant’s vehicle during that day rather than asking the appellant to drive him to see his father. With respect, it seems to me that there are a number of obvious reasons why Wilton may have taken such a course. For example, he may well have wished the appellant to remain ignorant of his involvement in the robbery, particularly having regard to the fact that he had used the appellant’s car and there was therefore a chance that details of ownership might be followed up by the police and the appellant questioned. Wilton may have been prepared to take the risk of surreptitiously borrowing the appellant’s car for a relatively short period in the morning, but considered it unwise to retain possession of it for a good part of the day in circumstances where it became more likely that the appellant would discover who had been using the car. For such reasons, a course that may have appealed to Wilton was to return the vehicle without the appellant’s knowledge and then solve the problem of transportation by innocently asking the appellant for a lift.
As to proposition 5, again this is not a matter disputed as to occurrence or cause; it does not increase the improbability of any of the other matters in any way. Elsewhere in his judgment his Honour says:
[55]… what the accused says does not fit easily within the timing of the proven events. The car must have driven away from the robbery not before 10.30am. Wilton, with or without his accomplices, drove back to McLauchlan Avenue, discarded the clothing and perhaps the knives, left some of the proceeds in the linen press cupboard, roused the accused and set off with him. The car is seen on Muller Road at 11.13am – less than three-quarters of an hour after the robbers left the post office. Whilst I accept that it is possible, the time constraints would militate against it.
However, the point is that we know that the Camira did return to 40 McLauchlan Avenue after the robbery and there was time to secrete the stolen items and discarded clothing from the robbery there because police later found them there shortly after the appellant and Wilton had been arrested. Also, we know that the Camira was later seen by the police at 11.13am, within three-quarters of an hour of the robbery, on Muller Road with the appellant driving and Wilton the passenger.
Therefore, the only possible improbability relates to the time that would be taken to wake the appellant and for him to get dressed. However, it is difficult to see why it is thought improbable that the appellant would be able to get up and get going quickly in the circumstances. Wilton’s request would have seemed to the appellant to be plausible and not unimportant; as it happened, Wilton’s father did indeed die later that day. In any event, his Honour clearly concluded that the sequence of events advanced by the defence case was possible. In the circumstances of the present case, that should have sufficed.
As to proposition 6, again this is not a matter disputed as to occurrence or cause; it does not increase the improbability of any of the other matters in any way. I suppose there is an implied suggestion of improbability of the appellant driving the Camira without knowing of the presence of the grey plastic Australia Post letter tub, but if this had been in the boot of a sedan, there would have been no reason for him to check the boot. I see no reason why it is improbable that he might not check the rear area or not see the tub, particularly on arising after a late night out.
As to proposition 7, the appellant was found in possession of one $50 note and Wilton was found in possession of three $50 notes. Even if we could assume that the three $50 notes found in Wilton’s possession came from the robbery, I am at a loss to understand the purport of his Honour’s comment “it just so happens that in the course of the robbery ten $50 notes are stolen”. Counsel for the appellant, perhaps optimistically, submits that the possession by the appellant of only one $50 note in fact constitutes evidence that he did not take part in the robbery because, if he had been the supplier of the vehicle, he should have got as much as Wilton! That may be debateable, but I will say that I cannot see how it constitutes evidence of guilt of the appellant; the possession of one $50 note is quite commonplace and that is not altered by the concatenation of matters in the present case.
An unreasonable verdict?
I consider that there is a lack of evidence to support the verdict and that the appeal should be resolved on that basis. As stated above, I consider that the improbability of the defence case is far less than as assessed by his Honour. It was not suggested that there was any evidence of identification, or admissions or any independently established lie evincing a consciousness of guilt. Nor did his Honour make any strong demeanour findings against the appellant. In the circumstances of the present case, the advantage of the trial Judge in seeing the appellant give evidence was not great. The matter is pre-eminently a matter of correct analysis as to what inference may be safely drawn from the proven facts as distinct from a dispute as to the existence of those facts.
Although various statements have been made in judgments of the High Court as to the correct approach to provisions equivalent to s 352 of the Criminal Law Consolidation Act 1935 (SA), and the application of the decision in M v The Queen,[8] I will take as authoritative the decision in M v The Queen together with the joint judgment of five Justices of the High Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) in the recent decision in The Queen v Nguyen.[9]
[8] (1994) 181 CLR 487.
[9] (2010) 85 ALJR 8.
In the final analysis, the prosecution case here largely depends on the degree of association between the appellant and Wilton in relation to Wilton’s participation in the armed robbery which was the subject of overwhelming evidence before his Honour (quite apart from his plea of guilty to which reference was unnecessary). I consider that the position is rather analogous to that of the appellant Starke in R v Bilick and Starke[10] where, in my view, there was more evidence against Mr Starke than there is against the present appellant. King CJ there concluded:[11]
The gist of the case against Starke was the closeness of his association with Bilick, who was proved to be trading in heroin, the fact that he attempted to warn Bilick of the presence of police, and the fact that a woman injected herself by means of a syringe in the arm in his presence. The last-mentioned fact really has no probative significance as regards trading as there was no evidence to suggest that Starke had delivered drugs to the house. The attempt to warn must excite suspicion, but it does little, of itself, to establish complicity in drug trading as distinct from knowledge that something illegal may have been occurring. The association with Bilick and the women must lay Starke open to suspicion, but there was no evidence of association on occasions of proved heroin trading. The evidence did not link Starke to the drugs in which Bilick was trading or indeed, apart from the syringe incident, to any drugs. The evidence was consistent with innocent association, with or without some knowledge or suspicion of Bilick’s real business in Adelaide. I think it would be quite unsafe to draw from the evidence the conclusion that Starke was a participant in the heroin trading operation. I do not think that it was open to the jury to reach that conclusion beyond reasonable doubt. On that ground I consider that Starke’s appeal should be allowed and the verdict against him should be set aside. Starke having stood his trial, and the prosecution having failed to prove the charge against him, there should not be a new trial.
[10] (1984) 36 SASR 321.
[11] Ibid 338.
With respect to the learned trial Judge, I am of the same view here. I consider that the evidence adduced was insufficient to prove the charge beyond reasonable doubt.
Conclusion
The verdict was unreasonable in that the evidence adduced was insufficient to prove the charge beyond reasonable doubt. In such circumstances the conviction should be set aside and a verdict of acquittal ordered.[12]
[12] Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.
Orders
I would allow the appeal, quash the conviction and direct a judgment and verdict of acquittal.

Ibid 531(.5). More recently, a number of convictions have been overturned through a failure adequately to direct juries as to the correct approach to matters involving probabilities and apparent coincidences – often involving what is known as the prosecutor's fallacy. In the decision of the NSW Court of Criminal Appeal in R v Keir [2002] NSWCCA 30 the Court stated at [22]:

“The prosecutor's fallacy has most recently been considered in this Court in R v GK [(2001) NSWCCA 413] and R v Galli [2001] NSWCCA 504. The first of these cases includes the following from Doheny and Adams [1997] 1 Cr App R 369 at 372-373:
‘It is easy, if one eschews rigorous analysis, to draw the following conclusion:
(1) Only one person in a million will have a DNA profile which matches that of the crime stain.
(2) The defendant has a DNA profile which matches the crime stain.
(3) Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.
...
Taking our example, the prosecutor's fallacy can be simply demonstrated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.…’”

[2011] SASCFC 46

18 May 2011

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