R v Hillier & Reilly

[2015] SADC 77

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HILLIER & REILLY

[2015] SADC 77

Reasons for the Verdicts of His Honour Judge Millsteed

20 May 2015

CRIMINAL LAW

Accused jointly charged with offences arising out of home invasion - issue one of identity - prosecution case based on circumstantial evidence consisting primarily of DNA evidence - accuseds' DNA located on fragments of latex gloves left at crime scene - accused did not give evidence - whether circumstantial evidence excluded hypotheses consistent with innocence - accused found not guilty.

Criminal Law Consolidation Act 1935 ss 170(1), 170(2)(b), 137(3), 5(1), 5AA(1)(b); Police Act 1998 s 71(1)(b), referred to.
R v GK (2001) 53 NSWLR 317; R v Pantoja (1998) 88 A Crim R 554; R v Noll [1999] 3 VR 704; R v Rye [2007] VSCA 247; Aytugrul v R (2010) 205 A Crim R 157; Forbes v R (2009) 167 ACTR 1; R v Karger (2002) 83 SASR 135; Chamberlain v The Queen [No.2] (1984) 153 CLR 521; Fitzgerald v The Queen (2014) 88 ALJR 779, considered.

R v HILLIER & REILLY
[2015] SADC 77

Introduction

1. On the night of 4 March 2013, a group of men invaded the home of Jarrod Brown and Natalie Pickert at Smithfield. The prosecution alleged that the two accused, Callum Reilly and Jarryd Hillier, participated in the home invasion. The case against them was circumstantial in nature and based primarily on DNA evidence. Following a trial by judge alone, I found the two accused not guilty of the charges brought against them. These are my reasons.

   The charges

2. The accused were charged in the same information with six offences alleged to have been jointly committed. The charges comprised: aggravated serious criminal trespass in a place of residence of Jarrod Brown and Natalie Pickert (count 1);[1] aggravated causing serious harm to Jarrod Brown with intent to cause him serious harm (count 2);[2] aggravated robbery of Natalie Pickert (count 3);[3] aggravated threaten life of Natalie Pickert (count 4);[4] aggravated threaten life of Jarrod Brown (count 5);[5] and, impersonating a police officer (count 6).[6] 

   [1]    Criminal Law Consolidation Act 1935 (CLCA), s 170(1).

   [2]    CLCA, s 23(1).

   [3]    CLCA, s 137(1).

   [4]    CLCA, s 19(1).

   [5]    Ibid.

   [6]    Police Act 1998, s 74(1)(b).

3. The offence charged in count 1 was alleged to have been aggravated by three factors: (i) that the victims were lawfully present in the place of residence and that the accused knew of their presence;[7] (ii) that the accused committed the offence in the company of one or more persons;[8] and, (iii) that the accused used offensive weapons namely, a firearm and a knife when the committing the offence.[9] In relation to each of the remaining counts, the charged offence was alleged to have been aggravated by factors (ii) and (iii), described above.

   [7] CLCA, s 170(2)(b).

   [8] CLCA, s 137(3).

   [9]    CLCA ss 5(1), 5AA(1)(b).

   District Court proceedings

4. On 3 March 2014 the accused were first arraigned in this Court on the joint information and pleaded not guilty to each of the six counts. They subsequently made successful applications for trial by judge alone pursuant to s 7 of the Juries Act 1927.

5. Their joint trial commenced on 18 November 2014. Mr Hillier was represented by Mr Richards and Mr Sale appeared for Mr Reilly. Ms Zuckerman appeared for the Director of Public Prosecutions. The prosecution called six witnesses including the alleged victims Natalie Pickert and Jarrod Brown. The accused did not give evidence. I delivered my verdicts on Friday 19 December 2014. However, I was not in a position to provide written reasons until now.

   Prosecution case

6. The following is an outline of the evidence tendered by the prosecution.

   The incident

7. At about 8pm on 4 March 2013 Jarrod Brown and Natalie Pickert were at home at 1 Anne Street, Smithfield. Their home was on the corner of Anne Street and Moir Street. Upon hearing knocking at the front door, Ms Pickert and Mr Brown went to the front door. She looked out through a narrow window and saw two men on the front porch. She opened the front door and spoke to them through the closed external security door. The men claimed they were police officers and asserted that the “STAR force” was on the way. The taller of the men (male 1) was wearing predominantly blue clothing, no doubt to give the impression that he was a uniformed police officer. His companion (male 2) was neatly dressed and gave the victims the impression that he was possibly a detective.

8. Ms Pickert opened the front door and allowed the men inside. Male 1 immediately approached Mr Brown, who was standing nearby in the hallway, and grabbed him around the throat. The two men then forced Mr Brown and Ms Pickert into the lounge room at the end of the hallway.

9. The men demanded to know where they kept “the money”. The victims replied that they did not know what the men were referring to. The men produced a knife and a weapon resembling a pistol. They threatened to shoot and kill the victims if they did not co-operate and one of them held the knife against Ms Pickert’s throat. At one point one of the men picked up Ms Pickert’s mobile phone from the coffee table and put it in his pocket. The victims noticed that both men were wearing latex gloves.

10. At about that time a third offender (male 3) rushed into the lounge room from the hallway and punched Mr Brown in the head. Ms Pickert was then punched in the head by either male 1 or male 2 and collapsed onto the floor. Male1 and male 2 then dragged Mr Brown to a room at the front of the house which had been converted into a mechanical workshop. Male 3 remained in the lounge room guarding Ms Pickert.

11. Mr Brown struggled against the two men and was prodded in the ribs with the muzzle of the pistol. When he grabbed the pistol and tried to push it away one of the men struck him forcefully over the back of his head with a solid object Mr Brown tried to pull the pistol away from his body and was then struck over the back of the head by the other man with an object, which was possibly another firearm. The blow knocked him to fall to the floor and fractured his skull. Male 1 and male 2 then tied Mr Brown’s wrists together with plastic cable ties wrapped in duct tape which they had brought to the house. Male 2 then sat on Mr Brown, held the tip of the knife against the nape of his neck and threatened to kill him if he did not reveal where he kept the money. He pleaded that he did not know what they were talking about.

12. As I have said, male 3 remained in the lounge room with Ms Pickert. He demanded money from her and attempted to tie her hands together with plastic cable ties. When she resisted he slapped her across the face and directed her to sit on a sofa. He then put an arm around her neck and applied a choke hold.  When he eventually let go, he picked up her laptop computer from the coffee table and put it in a bag that he had brought to the house. A short while later, the three men left, taking with them Ms Pickert’s laptop and mobile phone. I should mention that neither Ms Pickert nor Mr Brown noticed whether male 3 was wearing gloves.

13. The victims’ neighbour, Michael Daw, saw the offenders immediately before they entered the victims’ home. He lived in Anne Street directly opposite the victims’ home. Mr Daw was in his front yard watering his garden when he saw a motor vehicle, which he described as an old white Ford sedan, pull up in Moir Street and park next to the victims’ home in a poorly lit spot.

14. Mr Daw saw “about five people” alight from the motor vehicle and enter the front yard of the victims’ home. He was unable to say whether they were male or female. Two of them went to the front of the house and rushed inside after the front door was opened from inside. After a short delay, the other three people also went inside through the front door. In my view it is possible that Mr Daw was mistaken about the number of people who entered the house, but nothing turns on this point. He said that about five minutes later he heard someone call out from the house: “I ain’t got it, I ain’t got anything”. He subsequently saw a group of people exit the house and drive off in the Ford sedan.

15. After the offenders left, Ms Pickert rang friends. They arrived a short while later and drove Ms Pickert and Mr Brown to their home. Mr Brown was then collected by his father and driven to the Lyell McEwin Hospital where he was examined and then transferred by ambulance to the Royal Adelaide Hospital for further assessment and treatment. The medical evidence established that Mr Brown suffered a depressed skull fracture (about 2 x 2cms), lacerations on his scalp and face, which required suturing, and multiple grazes and bruises.

16. Against medical advice, Mr Brown discharged himself from the Royal Adelaide Hospital three days later, on 8 March 2013. Due to a variety of symptoms including poor motivation, fatigue, poor sleep, frontal headaches and generalized aches and pains Mr Brown subsequently underwent an outpatient six month brain injury rehabilitation program. Unfortunately he still suffers from residual short term memory deficits.

    Police investigation

17. Mr Brown and Ms Pickert did not return to their home until after they had reported the matter to police on the afternoon of 9 March 2013 (the day after Mr Brown discharged himself from hospital). They failed to lodge an earlier report because they were initially concerned that the offenders may have been police officers. They further feared that the offenders might return and exact retribution.

18. Later that afternoon, Senior Constable Amanda Smith, a trained and experienced crime scene examiner, attended the victims’ home. She examined and photographed the premises. The examination revealed the presence of large areas of bloodstaining in the hallway and workshop. There was no dispute at trial that the bloodstains originated from the lacerations suffered by Mr Brown in the course of the incident.

19. Senior Constable Smith collected, packaged and labelled various exhibits including the following:

    ·    a roll of white duct tape located on the hallway floor near the front door (labelled 13/B93587-01);

    ·    the fingertip of a latex glove located on the hallway floor (labelled 13/B93587-04);

    ·    a piece of bloodstained silver duct tape located on the hallway floor (labelled 13/B93587-05);

    ·    two fingers of a latex glove located on the workshop floor (labelled 13/B93587-07);

    ·    a screwed up piece of white duct tape located on the hallway floor (labelled 13/B93587-08); and

    ·    two plastic cable ties wrapped in silver duct tape located on the hallway floor (labelled 13/B93587-09) .

20. The exhibits were delivered by police to the Forensic Science SA for examination on 13 March 2013.

21. On or about 4 September 2013 two men named Spinks and Piper were arrested and interviewed by police in respect of the present matter. Police seized a white Ford Falcon parked at Piper’s home which had been registered in his name since 28 August 2002. The Ford was forensically examined but no evidence was obtained linking the vehicle to the home invasion. Buccal swabs were collected from Spinks, though apparently not from Piper, for the purpose of determining his DNA profile. The charges against Spinks and Piper were later discontinued by the prosecution due to insufficient evidence.

22. The accused Hillier and Reilly were arrested by police on 4 September 2013 and 10 September 2013, respectively. Their homes were searched but no evidence was recovered which linked them to the offences committed against Mr Brown and Ms Pickert. Mr Reilly was interviewed by police on the day of his arrest. He admitted that Spinks, Piper and Mr Hillier were his friends. He denied involvement committing the charged offences. No evidence was tendered as to whether Mr Hillier was interviewed by police but it was an agreed fact that he knew and associated with Reilly, as the latter stated in his record of interview. It was further agreed that following their arrests the police obtained a buccal swab from each of the accused to determine his DNA profile.

23. On 8 January 2013 the police conducted photo-identification procedures with Mr Brown and Ms Pickert. Each witness was separately shown two sets of photographs of 12 male persons. One set contained a photograph of the accused Hillier and the other set contained a photograph of the accused Reilly. Both witnesses were unable to identify the two accused. The police also collected buccal swabs from Mr Brown and Ms Pickert.

    Forensic examinations

24. The exhibits collected from the victims’ home by Senior Constable Smith and the various buccal swabs collected during the police investigation were delivered to the Forensic Science SA for examination on 25 September 2013. Each of the exhibits collected by Senior Constable Smith was swabbed. Those swabs and the buccal swabs were subjected to DNA analysis and comparison by qualified and experienced forensic scientists at Forensic Science SA using widely recognized scientific techniques.

25. The items were initially examined by Ms Daniella Stankovic whose report, dated 14 November 2013, was tendered by consent (exhibit P15). They were further examined by Ms Natasha Toop-Mitchell. Her report dated 17 November 2014 was also tendered by consent (exhibit P16). Ms Toop-Mitchell was called by the prosecution to explain the findings that were made in this case.

26. Before turning to those findings, it is appropriate to summarise the general nature of DNA evidence, as explained by Ms Toop-Mitchell, and the forensic limitations on the use of such evidence.

    DNA evidence

27. DNA evidence is a type of expert evidence in which the DNA of the sample found at the scene or on an item associated with the scene of an alleged crime (forensic sample), is compared with a DNA sample provided by the accused and by other persons such as the alleged victim of an offence and other suspects (reference samples). Comparisons are made to determine if there are corresponding characteristics.

28. There are two forms of DNA, nuclear DNA and mitochondrial DNA.  In the present case the forensic work focused on the former. Nuclear DNA is found in the nucleus of the human cell. It contains all the attributes that determines a person’s inherited characteristics. Accordingly, one half of a person’s DNA is inherited from one biological parent and the other half is inherited from the other biological parent. No two people have the same complete DNA except identical twins. However, the more related two people are, the more similarities will be present in their DNA.

29. DNA is found in most cells of the body and is uniform throughout the body. In other words the content of the DNA is the same in all cells containing nuclear DNA. So the DNA of a person’s blood, saliva, semen and bodily tissues will be the same, unless there is some cell mutation in an area of the body caused by disease such as cancer. Importantly, in the context of the present case DNA can be transferred through contact with the donor’s skin, called “contact” or “trace” DNA.

30. DNA consists of twisted strands held together by units or base pairs, much like the steps in a spiral staircase. There are approximately three billion units of which about 1% vary between individuals. Scientists at Forensic SA employ a widely recognized method of analysis called Profiler Plus which analyses ten specific sites (loci) of base pairs. One of the 10 loci indicates the person’s gender and the other nine contain DNA which varies between people.

31. The testing determines the lengths of repeated sequences or strings of DNA at the examined loci which varies between individuals. Because each person has two copies of DNA, one from each parent, there will be two sets of repeating sequences at each locus. The number of repeating sequences are called alleles. The DNA profile of a sample is the allele value across all of the examined sites.

32. Due to the uniqueness of nuclear DNA, if all the base pairs (where DNA is known to vary between people) in two samples were tested and matched, it would be possible to say that they came from the same person or an identical twin. Such a process, however, would not be practical because it would involve testing millions of loci. As I have said, Profiler Plus only targets DNA at 10 loci.

33. This means that even where there is a “match” between an accused person’s reference sample and a forensic sample, it is not possible to say with certainty that the latter came from the accused. The forensic sample could have come from a different person who happens to have the same alleles at the tested loci. Such a match only establishes that the accused could be responsible for the forensic sample.[10]

    [10]   R v GK (2001) 53 NSWLR 317; R v Pantoja (1998) 88 A Crim 554.

34. Such a conclusion would have little probative value if every other person in the community or a large number of people in the community shared the same DNA profile at the examined loci. For DNA evidence to have any significance evidence must be given by a suitably qualified expert about the probability of a match between a forensic sample and a random member of the population.[11]

    [11]   R v Noll [1999] 3 VR 704; R v Rye [2007] VSCA 247; Aytugrul v R (2010) 205 A Crim R 157.

35. Obviously, the less likely the expectation of finding the same profile in other people the more value the evidence may have in implicating the accused in the charged offence. To reach these conclusions about a probability of a match, experts rely on the frequency with which certain alleles occur in the general population at the examined loci. These frequencies are recorded in databases built up from previous genetic testing.

36. There are two explanations or hypotheses considered by experts when comparing a DNA profile obtained from a forensic or crime scene sample with a DNA profile obtained from an accused person. One hypothesis is that the accused was the source of or a contributor to the forensic sample, sometimes called “the prosecution hypothesis”. The other hypothesis is that another unknown person is the source of or a contributor to the forensic sample, sometimes called “the defence hypothesis”.

37. Based on genetic databases, probabilities are calculated for each of the two alternate hypotheses and then compared in the form of a ratio, which is called the “likelihood ratio” or “statistical weighting”. In other words, the statistical evidence calculates the probabilities of the prosecution hypothesis and the defence hypothesis being correct and expresses the competing probabilities as a ratio; for example, the hypothesis that the accused was the source of the DNA profile in a forensic or crime scene sample may be expressed as 100 times greater than the hypothesis that he was not the source.

38. Ms Toop-Mitchell explained that scientists give likelihood ratios (in favour of a particular hypothesis) the following qualitative descriptions:[12]

    ·    a likelihood ratio between 1-10 provides “slight support” for the hypothesis

    ·    a likelihood ratio between 10-100 provides “moderate support” for the hypothesis

    ·    a likelihood ratio between 100-1,000 provides “strong  support” for the hypothesis

    ·    a likelihood ratio between 1,000-1,000,000 provides “very strong support” for the hypothesis

    ·    a likelihood ratio over 1,000,000 provides “extremely strong  support” for the hypothesis.

    [12]   This has been accepted as an appropriate to avoid the risk that triers of fact may be overwhelmed by exceptionally high probabilities or likelihood ratios: see Forbes v R (2009) 167 ACTR 1.

39. The significance of the DNA match at the tested loci is not evidence of the probability that the accused committed the offence, rather it compares as a ratio the probability that the accused was the source, or the contributor, as the case may be, with the probability that another unknown person is the source or a contributor. For example, a likelihood ratio of one million does not mean that an accused person is one million times more likely to have left the DNA at the crime scene, or is one million times more likely to be guilty.

1. As Doyle CJ explained in R v Karger:[13]

   Clearly enough, that evidence must be used with care.  For the purposes of expressing the likelihood ratio, two factual hypotheses are compared.  One is the prosecution hypothesis that the appellant was the source of the bloodstain and of the incriminating DNA. The other hypothesis is the defence hypothesis that an unrelated person is the source of the bloodstain and of the incriminating DNA. The statistical evidence calculates the probability of the occurrence, in either case, of the match found between the incriminating DNA and that of the appellant, and expresses the competing probabilities as a ratio.

   The statistical evidence interpreting the significance of the DNA match is not evidence of the probability that the appellant was the source of the incriminating DNA.  To so regard it would be to make an error. However, the statistical evidence interpreting the DNA match is expert evidence that the jury could use in deciding whether it was satisfied beyond reasonable doubt that the appellant was the source of the incriminating DNA. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA, but is not direct evidence of that fact. And, as is obvious, the statistical evidence must be considered in the light of other evidence in the case.

   It is necessary for the jury to appreciate these points if they are to make proper use of the statistical evidence.

   It is also necessary to avoid the so-called prosecutor’s fallacy, if the evidence is to be properly used.  Reasoning in the form of that fallacy involves, as I understand it, both the error just identified and an approach which would treat the statistical evidence as proof of guilt, rather than as evidence from which a conclusion on a matter which might in turn point to guilt could be reached.

   [13] (2002) 83 SASR 135 at [15]-[18].

2. A trier of fact (judge or jury) must not, of course, substitute reliance on a mathematical or verbal expression of probability for an actual persuasion of the matter that must be proved beyond reasonable doubt or as proof of guilt itself. The probability of a match may be used as an item of circumstantial evidence in deciding whether the prosecution has proved its case beyond reasonable doubt.

   DNA Findings

3. As earlier observed, both Ms Stankovic and Ms Toop-Mitchell examined various exhibits submitted to Forensic Science SA by police. Each of the reports prepared by Ms Stankovic (exhibit P15) and Ms Toop-Mitchell (exhibit P16) contained a chart summarising their key findings. The work performed by Ms Toop-Mitchell confirmed Ms Stankovic’s findings but fine-tuned the likelihood ratios in respect of samples that were found to contain DNA profiles consistent with the accused. The fine-tuning arose from Ms Toop-Mitchell’s use of a broader population database (Caucasian, Aboriginal and Vietnamese) than the one used by Ms Stankovic (Caucasian and Aboriginal).

4. The following is a combination of the charts prepared by the two scientists. The combined chart contains the likelihood ratios calculated by Ms Toop‑Mitchell in respect of the two accused:[14]

   [14]       It should be observed that where an individual is recorded as excluded as a contributor to the DNA profile       obtained all hypotheses that consider the contribution of DNA of a relative also result in an exclusion of the    individual to the DNA profile.

Sample description				DNA profile description	Person	Hypothesis/ Interpretation	Statistical weighting
13/B93587-4: Fingertip of latex glove- Large areas of blood-like staining observed mostly on outer surface as received.  Fibres firmly attached were observed but not analysed.
587-4.A	Swab – blood-like stain on outer surface			Mixed DNA profile – two contributors	HILLIER	Excluded
					REILLY	H1a: REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	2 (in favour of H2a) 2 (in favour of H2b) 3 (in favour of H2c)
					BROWN	H1: BROWN is a contributor H2: Brown is not a contributor	7.7 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
587-4.B		Swab – inner surface		Mixed DNA profile - two contributors	HILLIER REILLY BROWN PICKERT SPINKS	Excluded Excluded H1: BROWN is a contributor H2: Brown is not a contributor Excluded Excluded	7.5 billion (in favour of H1)
13/B93587-5: Duct tape – Duct tape received tangled with blood-like staining observed on both the adhesive and non-adhesive surfaces.  The tape was untangled for sampling purposes.  A latex glove fragment and multiple hairs were attached to the duct tape as observed when untangled.  The fragment and a single hair were removed from the tape for sampling.  The ends were designated “End 1” and “End 2” for identification purposes.  End 1 was folded and remained adhered together.
587-5.1A			Swab – blood-like stain on adhesive surface of duct tape adjacent to folded over end (end 1)	Mixed DNA profile – two contributors	HILLIER	H1a: HILLIER is a contributor H2a: HILLIER is not a contributor H1b: HILLIER is a contributor H2b: A sibling of HILLIER is a contributor H1c: HILLIER is a contributor H2c: A parent or child of HILLIER is a contributor	3 (in favour of H2a) 2 (in favour of H2b) 2 (in favour of H2c)
					REILLY	H1a: REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	2 (in favour of H2a) 2 (in favour of H2b) 3 (in favour of H2c)
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	7.8 billion (in favour of H1)
					PICKERT	H1: PICKERT is a contributor H2: PICKERT is not a contributor	10 (in favour of H2)
					SPINKS	Excluded
587.5.1C			Swab – non adhesive surface of tape avoiding obvious blood-like stains	Mixed DNA profile – two contributors	HILLIER	H1a: HILLIER is a contributor H2a: HILLIER is not a contributor H1b: HILLIER is a contributor H2b: A sibling of HILLIER is a contributor H1c: HILLIER is a contributor H2c:A parent or child of HILLIER is a contributor	4 (in favour of H1a) 2 (in favour of H1b) 2 (in favour of H1c)
					REILLY	H1a: REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	2 (in favour of H1a) H1b and H2b equally supported H1c and H2c equally supported
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	7.8 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
587-5.1D			Cutting – end one of duct tape	Mixed DNA profile – two contributors	HILLIER REILLY	Excluded Excluded
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	7.9 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
587-5.2A			Swab – blood-like stain on outer glove fragment	Mixed DNA profile – two contributors	HILLIER REILLY BROWN PICKERT SPINKS	Excluded Excluded Excluded Excluded Excluded
587-5.2B			Swab – inner surface of glove fragment	Mixed DNA profile – three contributors	HILLIER	H1a: HILLIER is a contributor H2a: HILLIER is not a contributor H1b: HILLIER is a contributor H2b: A sibling of HILLIER is a contributor H1c: HILLIER is a contributor H2c: A parent or child of HILLIER is a contributor	220 million (in favour of H1a) 1300 (in favour of H1b) 69000 (in favour of H1c)
					REILLY	H1a:  REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	2 (in favour of H1a) H1b and H2b equally supported H1c and H2c equally supported
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	1.3 million (in favour of H1)
					PICKERT	H1: PICKERT is a contributor H2: PICKERT is not a contributor	41 (in favour of H1)
					SPINKS	Excluded
13/B93587-7: Latex glove fragment – Blood-like staining observed on outer surfaces as manufactured.
587-7.A			Swab – blood-like stain on outer surface	Mixed DNA profile – two contributors	REILLY	H1a: REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	6 (in favour of H1a) 2 (in favour of H1b) 2 (in favour of H1c)
					HILLIER	Excluded
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	7.6 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
587-7.B			Swab – inner smooth surfaces of glove fragment	Mixed DNA profile – three contributors	HILLIER	Excluded
					REILLY	H1a: REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	7.6 billion (in favour of H1a) 9100 (in favour of H1b) 3.9 million (in favour of H1c)
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	5.2 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
13/B93587-9: Two looped cable ties bound together with duct tape – Only one cable tie observed in packaging.  Tape received as tangled and not untangled for sampling.  Blood-like staining observed on both the adhesive and non-adhesive surfaces of the tape and cable tie.  A glove fragment and hairs adhered to the tape were recovered during examination for sampling.
587-9.1.B			Swab – end and adjacent parts of loop of cable tie	Mixed DNA profile – three contributors	HILLIER REILLY	Excluded Excluded
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	8.2 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
587-9.1.C			Swab – non-adhesive surface of tape avoiding blood-like stains	Mixed DNA profile – three contributors	HILLIER REILLY	Excluded Excluded
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	7.9 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded
587-9.3.B			Swab – inner surfaces of glove fragment	Mixed DNA profile – three contributors	HILLIER	H1a: HILLIER is a contributor H2a: HILLIER is not a contributor H1b: HILLIER is a contributor H2b: A sibling of HILLIER is a contributor H1c: HILLIER is a contributor H2c: A parent or child of HILLIER is a contributor	8.1 billion (in favour of H1a) 8500 (in favour of H1b) 6.3 million (in favour of H1c)
					REILLY	H1a: REILLY is a contributor H2a: REILLY is not a contributor H1b: REILLY is a contributor H2b: A sibling of REILLY is a contributor H1c: REILLY is a contributor H2c: A parent or child of REILLY is a contributor	H1a and H2a equally supported H1b and H2b equally supported H1c and H2c equally supported
					BROWN	H1: BROWN is a contributor H2: BROWN is not a contributor	2.1 billion (in favour of H1)
					PICKERT SPINKS	Excluded Excluded

1. I am satisfied beyond reasonable doubt of the accuracy and reliability of the findings set out above.

2. In reaching this conclusion, I have considered whether the exhibits collected from the victims’ home by Senior Constable Smith, the swabs collected from those exhibits by the scientists at the Forensic Science Centre and the reference samples collected from the accused (and other persons) may have been contaminated by the manner in which they were handled by police and at the Forensic Science SA. I am satisfied that the police officers and scientists handled the relevant items in a responsible and professional manner in order to prevent their contamination. I am further satisfied that the DNA testing conducted by the scientists was not tainted by laboratory error and that the data bases used to calculate the likelihood ratios or statistical weightings were scientifically appropriate. Indeed, none of these facts were challenged by counsel for the accused. On the contrary, as I have already pointed out, both counsel accepted the accuracy and reliability of the DNA findings.

   Interpretation of findings

3. The findings show that each of the forensic or crime scene swabs contained mixed DNA profiles originating from either two or three contributors, with a very high statistical weighting (ranging from 2.1 billion - 8.2 billion) providing “extremely strong support” (from a scientific perspective) that Mr Brown was one of the contributors. I am satisfied that he did in fact contribute to each of the mixed DNA profiles.

4. The findings further show that Ms Pickert and Mr Spinks were excluded as possible contributors except in relation to a DNA profile located on the inner surface of a fragment of latex glove (587-5.2B - adhering to the duct tape found on the hallway floor).  In respect of that profile there was a very low statistical weighting (41) in favour of Ms Pickert having been one of the contributors.

5. In relation to the accused there were exceptionally high statistical weightings or likelihood ratios of them having contributed to certain profiles. In relation to Mr Reilly there was a statistical weighting of 7.6 billion in favour of the hypothesis that he contributed to the mixed DNA profile (from three contributors) on the inner surface of a fragment of latex glove (comprising two fingers) located on the hallway floor (587-7.B).

6. As for Mr Hillier there were the following:

   ·    a statistical weighting of 220 million in favour of the hypothesis that he contributed to the mixed DNA profile (from three contributors) located on the inner surface of the fragment of latex glove adhering to the duct tape located on the hallway floor (587-5.2B); and

   ·    a statistical weighting of 8.1 billion in favour of the hypothesis that that he contributed to the mixed DNA profile (from three contributors) found on the inner surface of the fragment of latex glove adhering to the duct tape wrapped around the cable ties located on the hallway floor (587‑9.3B).

7. From a scientific standpoint the findings summarized in [48]-[49] provide “extremely strong support” for the prosecution’s contention that the accused contributed to these particular mixed DNA profiles. I am satisfied beyond reasonable doubt that the accused were in fact contributors. Defence counsel did not seriously contest this finding but argued that there were explanations or hypotheses consistent with the innocence of each accused. I will discuss those hypotheses shortly.

8. There were also very low statistical weightings or likelihood ratios in favour of the accused having contributed to other DNA profiles; namely, a weighting of 4 that Mr Hillier contributed to a DNA profile located on the duct tape near the front door (samples 587-5.1C) and a weighting of 2 that Mr Reilly contributed to DNA profiles found on the duct tape near front door (samples 587‑5.1C and 587-5.2B). Scientifically those weightings provide only “slight support” for the prosecution case but the probability that the accused were contributors is strengthened by my findings above ([50]).

9. In relation to the remaining mixed DNA profiles recovered from the forensic or crime scene samples both accused were excluded as possible contributors (fingertip of latex glove located on hallway floor- samples 587-4.A and 587-4.B; duct tape found near the front door - samples 587-5.1D and 587‑5.2A) or were considered to be unlikely contributors (duct tape near front door - sample 587-5.1A).

10. Significantly, the following samples of mixed DNA contained profiles that must have originated from an unknown person or persons. First, a mixed DNA profile from two contributors was located on the inner surface of the fingertip of the latex glove located on the hallway floor (sample 587-4.B). Secondly, two mixed DNA profiles from three contributors were located on the non-adhesive side of the duct tape wrapped around the cable ties (samples 587-9.1B and 587‑9.1C). In relation to each of those samples one of the contributors was Brown (see [46]) while each of the accused, Spinks and Pickert were excluded as contributors. It follows that an unknown person contributed to the first mentioned sample and two unknown persons contributed to the second and third mentioned samples.

11. Furthermore, each of the following samples of mixed DNA contained a profile that is more likely than not to have originated from an unknown person. First, a mixed DNA profile from two contributors (one of whom I find was Brown) was located on the outer surface of the piece of latex glove found on the hallway floor (sample 587-4.A). Hillier, Spinks and Pickert were excluded as contributors. Mr Reilly was not excluded but a low statistical weighting of 2 provides slight support, from a scientific perspective, that he was not the contributor. In my view, that finding gives rise to the reasonable possibility that an unknown person was the source of that profile.

12. Secondly, a mixed DNA profile from two contributors (one of whom I find was Brown) was located on the adhesive surface of duct tape found near the front door (sample 587-5.1A). Spinks was excluded as a contributor. The donors of the other reference samples were not excluded but low statistical weightings (Hillier (3), Reilly (2) and Pickert (10)) point in that direction.

    The issues 

13. As I have said earlier observed, it was not in dispute that three or more persons committed the charged offences pursuant to a joint criminal enterprise. In relation to each accused the sole issue was whether the prosecution had proved beyond reasonable doubt that he was one of the offenders. Mr Brown and Ms Pickert failed to identify either of the accused in the photo-identification procedures. The prosecution case against each accused case was built on circumstantial evidence.

14. That circumstantial evidence comprised:

    ·    the victims’ general descriptions of male 1 and male 2 said to be consistent with the accused;

    ·    the offenders use of a white Ford and the fact that the accuseds’ associate Piper  owned such a vehicle at the time of the offences; and

    ·    the DNA evidence.

15. It is well established, of course, that a trier of fact cannot be satisfied beyond reasonable doubt of the guilt of an accused person unless the facts are such as to exclude any reasonable hypothesis consistent with innocence.[15]

    [15]   Chamberlain v The Queen [No.2] (1984) 153 CLR 521 at 536.

    Consideration

16. There is no need to describe in detail the descriptions of male 1 and male 2 provided by Mr Brown and Ms Pickert. It is sufficient to say that their descriptions of the age, height, build, hair style and complexion of male 1 (the taller man) were consistent in a broad sense with Mr Reilly. Their descriptions of the same features of male 2 were also generally consistent with Mr Hillier’s general appearance except that unlike Mr Hillier they believed that male 2 had an olive complexion. While I accept that the general descriptions provided by the victims are consistent with accused, it is perfectly obvious that their descriptions could fit many men who had the opportunity to commit the crimes.

17. Mr Daw’s observation that the offenders arrived and left in an old white Ford did not advance the prosecution case very far. While I accept that he gave a substantially accurate description of the motor vehicle there is likely to have been hundreds of such cars in the community at the time. Furthermore, there is not a scintilla of evidence that Piper’s white Ford, which the prosecution postulated may have been used by the accused, was involved in the home invasion.

18. As the prosecutor, Ms Zuckerman fairly acknowledged, the lynchpin of the prosecution case comprised the DNA evidence. I now turn to consider that evidence.

1. As I have already said, I am satisfied beyond reasonable doubt that Mr Reilly’s DNA was located on the inner surface of the fragment of latex glove located on the hallway floor (sample 587-7.B) and that Mr Hillier’s DNA was located (i) on the inner surface of another fragment of latex glove adhering to the duct tape located in the hallway (sample 587-5.2B) and (ii) on the inner surface of an additional fragment of latex glove adhering to the duct tape wrapped around the cable ties (sample 587-9.3B).

2. For the reasons earlier expressed, it is also more probable than not that Mr Hillier’s DNA was found on the piece of duct tape near the front door (samples 587-5.1C) and that Mr Reilly’s DNA was found on the same piece of duct tape (samples 587-5.1C) and on the inner surface of the piece of latex glove stuck to the duct tape (587-5.2B).

3. The prosecution argued that it should be inferred that the accuseds’ DNA was located on the inside surface of fragments of glove because both of them participated in the home invasion wearing the glove(s) from which the incriminating fragments originated. Furthermore, both of them probably handled the piece of duct tape located on the floor near the front door (“direct” DNA transfers).

4. Defence counsel, on the other hand, submitted that the presence of the accuseds’ DNA on these items may have resulted from “secondary” transfers. Such transfers occur when contact or trace DNA is transferred from the donor to an intermediary (another person or an object) and the intermediary transfers the donor’s DNA to the crime scene. Ms Toop-Mitchell explained that the testing in the present case could not exclude the possibility that the accused’s DNA in the samples resulted from secondary transfers.

5. Mr Brown and Ms Pickert testified that they had never met the accused prior to the night of the offences. However, defence counsel emphasized that Mr Brown had worked on secondhand motorcycles and motor vehicles at his home for friends and others. Defence counsel suggested that the accused may have come into contact with those items before their delivery to Mr Brown’s home and that by a series of secondary transfers the accuseds’ DNA found its way onto the incriminating items. I reject that argument. There is not a jot of evidence to support that theory and it is one which I find to be utterly implausible.[16]

   [16]   cf Fitzgerald v The Queen (2014) 88 ALJR 779.

6. In relation to each accused I am satisfied beyond reasonable doubt that he wore the glove or gloves from which the fragment(s) bearing his DNA originated. However, it does not necessarily follow that they participated in the home invasion. First, it should be observed that the evidence did not exclude the possibility that the various fragments of latex found inside the victims’ home originated from the same glove or pair of gloves.

7. Secondly, as earlier explained, an unknown person(s): (i) must have contributed to mixed DNA profiles located (a) on the inner surface of the latex fingertip collected from the hallway floor (sample 587-4.B) and (b) on the non-adhesive side of the duct tape wrapped around the cable ties (samples 587-9.1B and 587-9.1C); and, (ii) more likely than not contributed to mixed DNA profiles located (a) on the outer surface of the latex fingertip collected from the hallway floor (sample 587-4.A) and (b) on the adhesive surface of duct tape found near the front door (sample 587-5.1A).

8. It is to be observed the unknown DNA profile referred to above in (i)(a) was, unlike the other unknown profiles, located on the inner surface of the latex fragment. In my view this gives rise to the possibility that at some stage an unknown person wore the glove from which that fragment came. This theory is no less plausible than the prosecution’s contention that each of the accused must have worn the gloves upon which his DNA was located.

9. The DNA evidence is entirely consistent with prosecution’s case the two accused participated in the home invasion and left behind fragments of the gloves worn by each of them. However, to my mind the DNA evidence is also consistent with alternative scenarios, for example:

   ·    only one of the accused participated in the home invasion and left behind fragments of the gloves worn by him and those gloves had been previously worn or touched by his co-accused and an unknown person;

   ·    only one of the accused (whose identity cannot be determined) participated in the home invasion and left behind fragments of the gloves worn by him and an unknown accomplice left behind fragments of gloves which had been previously worn or touched by his co-accused;

   ·    neither accused participated in the home invasion and an unknown person or persons left behind fragments of gloves previously worn or touched by the two accused.

10. The prosecution case may well be right. However, the DNA evidence does not exclude reasonable hypotheses consistent with innocence.

11. The doubts that I have about the prosecution case are compounded by the results of the photo-identification procedures. I accept Ms Zuckerman’s submission that if the accused participated in the home invasion that it is not entirely surprising that Mr Brown and Ms Pickert failed to identify them. They were subjected to a terrifying and no doubt fast moving incident. The fact that 10 months had elapsed before the photo-identification procedures were conducted may have further compromised their ability to identify the accused. However, they did clearly see the offenders close-up and in a reasonably well-lit house.

12. For these reasons I found both accused not guilty on all counts.