R v King (No 2)
[2016] ACTSC 121
•9 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v King (No 2) |
Citation: | [2016] ACTSC 121 |
Hearing Dates: | 7–8 June 2016 |
DecisionDate: | 9 June 2016 |
Before: | Murrell CJ |
Decision: | Not guilty. |
Catchwords: | CRIMINAL LAW – Judge alone trial – particular offences – burglary and theft – expert evidence – DNA evidence – DNA only evidence implicating the accused – circumstantial case – Murray direction – critical intermediate fact – accused not giving evidence – not guilty on all counts |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 311 Evidence Act 2011 (ACT) s 20 Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | Azzopardi v The Queen (2001) 205 CLR 50 Fitzgerald v The Queen (2014) 311 ALR 158 Weissensteiner v The Queen (1993) 178 CLR 217 |
Parties: | The Queen (Crown) Wesley Matthew King (Accused) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Ms S McGee (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Accused) | |
File Number(s): | SCC 215 of 2015 |
MURRELL CJ:
The trial
Pursuant to s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone and his legal representative certified that he had received advice and made the election freely.
When the accused was arraigned, he pleaded not guilty to three counts of entering or remaining in a building as a trespasser with intent to commit theft of property in the building (burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code)) and one count of dishonestly appropriating property with intent to permanently deprive (theft, contrary to s 308 of the Criminal Code). The prosecution alleged that, between 30 December 2014 and 2 January 2015, the accused forced entry to a cafe and two sheds located at 23 Lonsdale Street, Braddon, which were occupied by a cafe/coffee roasting business known as Lonsdale Street Roasters.
I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at verdicts.
Separate charges
I am aware that the four charges upon which the accused was tried were heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.
Onus and standard of proof
I am aware that the prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge unless the prosecution proves him guilty beyond reasonable doubt. If I have a reasonable doubt about the guilt of the accused on any charge, I must return a verdict of not guilty on that charge.
I am aware that the prosecution does not have to prove the truth of each fact asserted in the prosecution case. What the prosecution must prove beyond reasonable doubt is each legal element of each charge and any fact that is essential to establishing a legal element.
I am aware that in making findings of fact I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the person who burgled the premises at 23 Lonsdale Street, Braddon was the accused.
The prosecution case
Lonsdale Street Roasters occupies three buildings at 23 Lonsdale Street, Braddon: a cafe, a blue storage shed and a white shed used for coffee roasting and as an office. The location of the buildings is illustrated in Exhibits 1, 2, 3, 4 and 5.
Except for the evidence of Ms Stone, a forensic expert, most of the prosecution evidence was uncontested.
Mr Bustamante
On 31 December 2014, an employee of Lonsdale Street Roasters, Mr Bustamante, was the last person to leave the premises. At about 5 pm he closed the business and locked the cafe. He used a remote control mechanism to close a door to the white shed. In accordance with usual practice, the door to the blue shed was closed, but not locked. Mr Bustamante secured both sheds by locking a chain that fenced off the access driveway to the sheds.
The western side of the blue shed has a permanent opening which gives access to an easement along the western side of the property: Exhibit 5.
The points at which the premises were secured by Mr Bustamante are numbered 1, 2, 3 and 4 in Exhibit 4.
Mr Plummer
At about lunchtime on 1 January 2015, Mr Plummer, the general manager of the business, attended the premises.
He saw evidence of forced entry to the cafe. An EFTPOS terminal and a till drawer were missing from the cafe.
The interior of the blue shed was in disarray. The contents of staff lockers had been thrown onto the floor.
Mr Plummer walked through the western opening of the blue shed to the western property easement. From the easement, he could see that a disused door on the western side of the white shed office “had been ripped open”. The office had been ransacked. Inside the office area, the door of a safe had been forced open and the safe was empty.
There were underpants on the office floor. It appeared that someone had defecated on the floor and smeared excrement across the papers that were strewn on the floor.
In the storage part of the white shed, fridges and freezes had been opened and the contents were scattered across the floor.
Mr Plummer contacted Mr Hutt, one of the owners of the business.
Mr Hutt
At about 2:30 pm Mr Hutt attended the business. He observed that the back door to the cafe had been jemmied open. Mr Hutt called the police and waited outside until they attended.
When Mr Hutt entered the white shed, he smelt a faecal smell coming from the office area. Within the office, business records and paper were scattered over the floor. There was faecal matter on the floor that looked like diarrhoea. There was damage to the disused office door adjacent to the western easement. The safe had been emptied of $3,900 (including both notes and coins), an iPod and Jeep keys.
Constable Mourad
Constable Mourad was the officer in charge of the investigation. She attended the premises at about 4:30 pm on 1 January 2015.
She observed damage to a garage door to the white shed, “which appeared to be made by a foreign object”. The door between the office and the western easement seemed to have been forced open. When she entered the white shed, she observed ransacking; papers had been strewn across the floor of the office and holes had been punched into boxes on the shelves in the roasting area. A large safe had been damaged.
Constable Mourad observed brown faecal-like matter (material with the smell and appearance of faeces) that was smeared over papers on the floor. She saw a mound of faecal matter on the floor.
Within the cafe area, she saw coins scattered over the floor just behind the till.
Her search of police records found that the accused had three brothers who were alive as at 31 December 2014/1 January 2015, none of whom shared the accused’s birthday (and, inferentially, his DNA).
Mr Howe
Mr Howe is a crime scene investigator who attended the premises on the evening of 1 January 2015. Among other observations, he noted that:
(a)There were signs of forced entry to both rear (western) timber framed double doors to the cafe. The more southerly door was open: Exhibit 9, photograph 1.
(b)Within the cafe, there were signs of disturbance near the service counter on which the cash register was located and items were lying on the floor near the cash register: Exhibit 9, photographs 17–20.
(c)The door to the blue shed was open: Exhibit 9, photograph 64. The “lockers” within the blue shed were “kept in an insecure state”. The doors of the lockers had not been forced open, but they were open and items (that had apparently come from the lockers) had been removed: Exhibit 9, photographs 66–67.
(d)There was a spanner in the storage/roasting area of the white shed, which was partly wedged in a stack of boxes: Exhibit 9, photographs 36–38.
(e)Within the office area, papers and other items covered the floor. There was material on the floor that appeared to be faecal matter: Exhibit 9, photographs 45, 46, 50 and 58. Soiled grey underpants were found in this area and taken for forensic analysis. The faecal matter on the floor appeared to “correspond” with the staining on the underwear.
(f)There was a black safe in the office area. The locking mechanism had been removed and it appeared that the safe had been forced open: Exhibit 9, photograph 53. The safe was empty. Adjacent to the safe was a flathead screwdriver: Exhibit 9, photographs 58–60.
(g)The door between the office area and the western easement had been damaged, apparently when force had been applied from the exterior: Exhibit 9, photographs 61–62.
Ms Stone
Ms Stone, a senior forensic biologist with the Australian Federal Police, gave evidence about DNA testing on the underpants that had been seized from the office area. Her reports and associated emails were tendered (Exhibit 7), as was the oral evidence that she gave on a voir dire. She took photographs: part of Exhibit 7.
Ms Stone’s expertise was not disputed, but her evidence was tested extensively.
When Ms Stone examined the soiled underpants, she formed the view that the heavily stained, brown area that smelled was probably faeces. For testing purposes, Ms Stone tape lifted a sample from inside the waistband of the underpants. She selected the waistband area as she considered that it was likely that the waistband area had been in significant contact with the wearer and had thereby accumulated a substantial quantity of DNA from contact with the skin of the wearer. In taking the sample, Ms Stone avoided the stained areas of the waistband because faeces is a poor source of DNA and the bacteria in faeces is likely to degrade any DNA with which it comes into contact.
Ms Stone found that the DNA profile was a mixed DNA profile from at least two individuals, a major contributor and minor contributor. The minor component was not suitable for identification purposes.
Ms Stone concluded that the accused could not be excluded as the source of the major component. Initially, she reported that her test result was at least 100 billion times more likely if the major component of the DNA profile originated from the accused than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian male subpopulation. Later, she clarified that, by reference to the Australian Caucasian male database, the actual figure was 271 septillion times more likely if the major component of the DNA profile originated from the accused than if it originated from another unknown, unrelated individual selected at random from the database. Referring to the Australian Indigenous database, Ms Stone did not give a precise figure but she said that, on the basis of her calculations, the figure did exceed 100 billion.
Ms Stone was asked about the possibility that the major component masked a third contributor. She stated that the major profile appeared to be that of one person; it did not appear to be a mixed DNA profile. The sample was both of very good quality and yielded a very balanced profile. It was very balanced both as to the DNA characteristics within each of the 20 markers that were tested and also from marker to marker. There was no imbalance that might suggest that one of the markers was shared by two people. Consequently, she had no hesitation in opining that the sample emanated from one individual. She said that the only way in which “masking” could have occurred was if the masked profile was the same as the major profile, i.e. it emanated from an identical twin or it satisfied the remarkably unlikely statistical possibility that another, randomly selected individual shared the accused’s DNA profile.
Ms Stone accepted that it was “possible” that the major contributor had worn the underpants some time prior to the offence and that someone else had worn them more recently. She could not exclude that scenario as a “reasonable possibility”. She conceded that the minor contribution could have been deposited directly by wearing.
Based on her visual observations, Ms Stone formed the lay opinion that the underpants had not been washed. She said that washing can remove cells and reduce the DNA yield by washing DNA away.
It is convenient to consider first whether the prosecution has proved beyond reasonable doubt that someone committed each of the offences (a matter that is not disputed, but nevertheless needs to be established beyond reasonable doubt) and then to consider whether, in relation to each of the offences, the prosecution has proved beyond reasonable doubt that the person who committed the offence was the accused.
Elements of burglary
In order to establish each offence of burglary, the prosecution must prove each of the following legal elements beyond reasonable doubt:
(a)A person entered (went inside) or remained (stayed) in a building.
(b)The person intended to enter or remain in the building (the person had that purpose).
(c)The person was a trespasser (entered or remained in the building without the permission of the occupier).
(d)The person was reckless as to whether they had permission to enter or remain in the building (at least, realised that there was a substantial risk that the occupier did not consent and, in the circumstances known to the person, it was unjustifiable to take the risk).
(e)When the person entered or remained in the building, the person intended to commit a theft of property in the building.
In relation to the three buildings that are the subject of Counts 1, 2 and 3 in the indictment, I am satisfied that the prosecution evidence establishes each of the elements of burglary beyond reasonable doubt.
In relation to each of the three buildings, there is no doubt that, after Mr Bustamante locked up on 31 December and before Mr Plummer returned on 1 January, an intruder entered each building. Someone disturbed the interior of each building; the blue and white sheds were ransacked and the area around the cash register in the cafe was disturbed.
Entry into each building was intentional; the intruder forced entry into the cafe (via the damaged, open rear French doors) and the white shed (via the disused office door). Inferentially, entry into the blue shed was also intentional. As discussed below, the intruder was undoubtedly motivated to enter the buildings by a desire to steal property.
There was evidence from Mr Plummer and Mr Hutt that entry was not authorised; the intruder was a trespasser.
I infer that the intruder realised that the occupier did not consent to the intruder entering the buildings; after hours, the intruder forced entry to locked and unoccupied business premises.
The intruder stole property from the cafe and the white shed and ransacked the white shed and the blue shed. The obvious reason for the intruder entering the buildings in the circumstances in which they did so was to steal any property of interest that was found in any of the buildings.
Elements of theft
In order to establish the offence of theft, the prosecution must prove each of the following legal elements beyond reasonable doubt:
(a)A person appropriated property belonging to another person (the owner).
(b)The person intended to appropriate the owner’s property and intended to permanently deprive the owner of their property.
(c)The appropriation with intent to permanently deprive was dishonest according to the standards of ordinary people.
(d)The person knew that the appropriation with intent to permanently deprive was dishonest according to the standards of ordinary people.
I am satisfied that each of these elements is established beyond reasonable doubt.
The property the subject of the theft count was taken from the cafe and the white shed (an EFTPOS machine, a cash drawer, an iPod, keys to a Jeep vehicle and approximately $3,900 in cash).
There is no doubt that it was an intruder who removed these items. The EFTPOS machine and the cash drawer were located in a position within the cafe where they were easy to find. The white shed and the blue shed were ransacked, inferentially in a hunt for valuable items that could be removed. The black safe was broken into because it presented as a location in which valuable items would be stored, and the contents of the safe were removed. The removal of items from the cafe and safe must have been intentional and motivated by the desire to obtain and keep the property, i.e. an intention to permanently deprive the owner of their property.
Ordinary people consider that the appropriation of the property of others with intention to permanently deprive the true owner and without any claim of right to the property is dishonest.
The intruder must have known that appropriation of the property in question with intent to permanently deprive the property owner was dishonest. That is why the intruder broke into the premises when no one was there.
As noted above, the contentious issue at the trial was whether the evidence established beyond reasonable doubt that the intruder was the accused. In relation to this issue, the prosecution case was entirely circumstantial.
Before discussing the circumstantial case, I will consider matters relating to the evidence of Ms Stone, as it was critical to establishing the circumstantial case.
Expert evidence
Ms Stone was an expert witness. Unlike other witnesses, an expert witness may express an opinion. In considering an expert’s opinion, I must have regard to their qualifications and experience and whether their opinions were based on correct assumptions.
In this case, there was no suggestion that Ms Stone lacked appropriate qualifications and experience. Some of her assumptions were questioned (particularly her assumptions that the brown staining was faeces, that the underpants had not been washed recently and that the Australian Caucasian male database was the appropriate database to use) but, in my view, her assumptions were not significantly undermined by the cross-examination.
Murray direction
The accused submitted that, in relation to the evidence of Ms Stone, a Murray direction should be given, i.e. a direction of the type referred to in R v Murray (1987) 11 NSWLR 12 (Murray). Conventionally, such a direction is given in a case where only one prosecution witness asserts the commission of the crime. The direction is to the effect that “the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in”: Murray at 19(E) per Lee J.
The general appropriateness of a Murray direction has been questioned. Regardless of the merits of giving such a direction in other cases, it is not appropriate in the present case.
The direction is designed to assist a jury to understand how they might approach the standard of “beyond reasonable doubt” where a case hinges on the evidence of only one witness, and that witness’s credibility is in issue. This is a judge alone trial. Ms Stone is an expert witness whose credibility is not in issue, except in relation to the reliability of the assumptions upon which she based her opinions.
Circumstantial case on the issue of the identity of the burglar
A circumstantial evidence case is one in which the prosecution seeks to establish certain facts (or circumstances) and argues that the only rational explanation for those circumstances is that the accused committed the crime, i.e. that the established circumstances show beyond reasonable doubt that the accused committed the crime.
Where circumstantial evidence is critical to a case, an accused cannot be convicted unless there is no rational explanation for the established circumstances other than that the accused is guilty of the crime. In R v Hillier (2007) 228 CLR 618 at [46], Gummow, Hayne and Crennan JJ expressed the test as whether “no other explanation than guilt is reasonably compatible with the circumstances”.
The prosecution submitted that I should first consider whether, in relation to Count 3 (burglary of the white shed), the evidence established beyond reasonable doubt that the burglar was the accused. If this charge was proved beyond reasonable doubt, then the burglary of the white shed would operate as a potent circumstance to establish that the accused committed the other offences with which he was charged.
I accept that this is the correct approach; if the accused burgled and stole from the white shed then there is an almost inescapable inference that he committed the other burglaries.
Critical intermediate fact
Usually, in a circumstantial case, the prosecution relies upon a suite of facts (or circumstances) and argues that, when the circumstances are considered as a whole, an inference consistent with innocence is not reasonably open on the evidence.
Generally, in a circumstantial evidence case, the prosecution does not need to prove any factual circumstance beyond reasonable doubt. However, this case falls into the relatively rare class of circumstantial case where one of the factual circumstances relied upon by the prosecution is so fundamental to the process of reasoning towards the guilt of the accused that it must be proved beyond reasonable doubt. Such a fact is referred to as an “intermediate fact” as it is an indispensable link in a chain of reasoning toward an inference of guilt: Shepherd v The Queen (1990) 170 CLR 573.
In this case, I would formulate the critical “intermediate fact” or circumstance that is an indispensable link in the chain of reasoning toward an inference of guilt as the fact that the major DNA profile on the soiled underpants was that of the accused. If the DNA on the soiled underpants was not that of the accused, then there is no evidence whatsoever that links the accused to the crimes. Consequently, this “intermediate fact” or critical circumstance must be proved beyond reasonable doubt.
I note that, in Fitzgerald v The Queen (2014) 311 ALR 158 (Fitzgerald) (for further discussion, see below), the High Court formulated the “intermediate fact” concerning DNA in a different way (whether the evidence was capable of establishing beyond reasonable doubt that the appellant’s DNA was deposited at the time that the crime was committed), but in my view that formulation was dictated by the issues in that case. Even if I am wrong to take a more restrictive view of the critical “intermediate fact” in this case, my erroneous view will not change the outcome, as will be seen below.
I am satisfied beyond reasonable doubt that the major DNA profile on the soiled underpants was that of the accused. There was evidence that the accused did not have an identical twin. The prospect that a randomly selected male would have the same DNA as the accused is so remote as to be fanciful, regardless of whether the accused is an Indigenous person (and there was no evidence that he was an Indigenous person).
Although this fact is an essential link in the chain of reasoning towards guilt, it does not, of itself, establish guilt.
Associated circumstances
The prosecution relied upon the following additional circumstances (each of which is, directly or indirectly, related to the DNA evidence) to establish that the burglar was the accused.
I find that each circumstance is clearly established by the evidence:
(a)The substance observed on 1 January was faeces. The brown staining in the underpants was also faeces. Based on observation and smell, the witnesses were as clear as one could be that this was the case.
(b)The faeces on the scattered paperwork in the office and the faeces on the underpants were both deposited by the burglar. The fact that both items were found in the office after it had been burgled, the “correspondence” of the items and their proximity to each other establishes these matters. I infer that the burglar defecated into the underpants, abandoned them and then either defecated onto the scattered paperwork or sought to clean himself or herself up using the paperwork.
(c)The quantity of the accused’s DNA that was found on the waistband of the underpants was substantial. I infer that the accused had, at some stage, worn the underpants.
(d)The underpants were not washed after the accused’s DNA was deposited on them; had they been washed, it is unlikely that Ms Stone would have collected such a rich sample of the accused’s DNA from the underpants. If the burglar was not the accused, then the burglar was someone who was wearing the accused’s dirty underpants, and most people prefer to avoid wearing other people’s unwashed underpants.
Accused did not give evidence
The accused decided that he would not give evidence. An accused person may give evidence in their trial, but there is no obligation to do so. There is a “right to silence”. The prosecution bears the onus of proving the guilt of an accused beyond reasonable doubt and an accused person does not have to prove anything.
Section 20 of the Evidence Act2011 (ACT) enables a judge to comment on the failure of an accused person to give evidence. However, the comment must not suggest that the accused person failed to give evidence because she or he was, or believed that she or he was, guilty of the offences in question.
On the other hand, in the pre-Evidence Act case of Weissensteiner v The Queen (1993) 178 CLR 217 (Weissensteiner) at 227–229, Mason CJ, Dean and Dawson JJ stated that, in a circumstantial evidence case, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be peculiarly within the knowledge of the accused. Weissensteiner was a circumstantial evidence case in which the victims disappeared while on a voyage with the accused and only the accused could have known what had really happened. In Azzopardi v The Queen (2001) 205 CLR 50, the High Court affirmed that the failure of an accused to give evidence in their trial could not itself be used as evidence against the accused. At [64] the plurality stated that there “may” be rare cases where the reasoning in Weissensteiner justified some comment, but that could only be where there was a basis for concluding that additional facts could explain or contradict an inference and those additional facts were peculiarly within the knowledge of the accused.
Arguably, this was a “Weissensteiner case”. However, if there is any sensible line to be drawn between taking into account the failure of an accused to cast doubt on what may otherwise be the only rational inference and suggesting that the accused failed to give evidence because the accused believed that she or he was guilty, the drawing of the line is fraught with difficulty.
In this case, the prosecution submitted that I should not rely upon the failure of the accused to proffer an explanation about the presence of his DNA on the underpants, and I have not done so.
Is the only available rational inference that the accused was the burglar?
In Fitzgerald, the appellant had been convicted on DNA evidence. The case against the appellant was that his DNA was found on a didgeridoo located at the crime scene, close to the body of the deceased. The DNA sample contained profiles of major and minor contributors. The appellant’s DNA was the major contributor and an unknown source was the minor contributor. A critical issue was when and how the appellant’s DNA came to be on the didgeridoo. It was an essential link in the prosecution’s circumstantial case that the appellant’s DNA was transferred directly by him to the didgeridoo during the attack on the deceased. Consequently, that circumstance had to be proved beyond reasonable doubt. Two unlikely alternative hypotheses were discussed: that there had been a secondary transfer through a co-offender, and that the appellant had come into contact with the didgeridoo on an earlier and unknown occasion.
The High Court identified three problems with the finding of guilt beyond reasonable doubt, at least one of which is very relevant to this case. The Court observed that the fact that the appellant’s DNA was on the didgeridoo said nothing about when or how his DNA was deposited on the didgeridoo. The Court held that the prosecution had not successfully excluded alternative hypotheses that were not unreasonable, including the hypothesis that there had been a secondary transfer of the appellant’s DNA through a co-offender.
In this case, the DNA evidence was the only evidence implicating the accused. Had there been any other evidence tending to implicate the accused which was not related to the DNA evidence, then I may have been satisfied of his guilt beyond reasonable doubt. However, I am not satisfied that guilt is the only available rational inference. There is, for example, a reasonable (albeit small) possibility that the burglar was someone else who was wearing unwashed underpants that had previously been worn by the accused.
In each case, the verdict is not guilty.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Anneke Bossard Date: 15 June 2016 |
3
7
3