R v Pfennig - [2018] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PFENNIG
[2018] SASCFC 27
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
1 May 2018
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction.
The appellant was convicted after a trial by judge alone for the murder of Louise Bell in 1983. A significant aspect of the evidence was results obtained from DNA analysis of Louise Bell’s pyjama top which matched the appellant’s DNA profile.
The appellant appeals against the conviction on the ground that the verdict is unsafe and unsatisfactory and cannot be supported having regard to the evidence. The appellant submits the prosecution did not exclude as a reasonable possibility the innocent transfer of his DNA to Louise Bell’s pyjama top, by way of multiple steps (“tertiary transfer”). The respondent submits there was a large body of evidence upon which the trial judge could rely to have been satisfied beyond reasonable doubt that the only explanation for the presence of the appellant’s DNA on Louise Bell’s pyjama top was that he abducted and murdered her.
Held (per Stanley J, Kourakis CJ and Peek J concurring): Appeal Dismissed.
1. The basis of the appellant’s hypothesis that his DNA was transferred to Louise Bell’s pyjama top by way of tertiary transfer is so unlikely given the state of scientific knowledge that the trial judge was correct to reject the hypothesis as fanciful [61].
2. Fitzgerald v The Queen (2014) 88 ALJR 779 does not stand as authority for the proposition that where the evidence leaves open the possibility of secondary or tertiary transfer of DNA, the DNA evidence is of no probative weight [70].
3. It was open for the trial judge to be satisfied of the appellant’s guilt beyond reasonable doubt, having regard to all of the evidence including the circumstantial evidence which, coupled with the DNA evidence, established a cogent basis for the judge’s verdict [71].
Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
Shepherd v The Queen (1990) 170 CLR 573; M v R (1994) 181 CR 487; R v Hore [2010] SASCFC 60; DPP v Paulino [2017] VSCA 38; R v Doheny and Adams [1997] 1 Crim App R 369; R v Karger (2002) 83 SASR 135; Libke v The Queen (2007) 230 CLR 559, applied.
Fitzgerald v The Queen (2014) 88 ALJR 779, distinguished.

R v PFENNIG
[2018] SASCFC 27
Court of Criminal Appeal: Kourakis CJ, Peek and Stanley JJ

KOURAKIS CJ: I dismiss the appeal for the reasons given by Stanley J.
PEEK J. I would dismiss the appeal. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal against conviction.
The appellant appeals against his conviction for the murder of Louise Bell in 1983. The appellant was tried by judge alone. At trial, there was no dispute that Louise was abducted and murdered. The sole issue at trial was whether the evidence established that the appellant was the offender.
Background
On 4 January 1983 Louise Bell was 10 years old. She resided with her parents and sister at Hackham West. On the night of 4 January 1983 Louise went to bed in a bedroom she shared with her younger sister Rachel. The bedroom abutted the street and there was a window to the street. At about 10:30 p.m. the girls’ father bid her goodnight. At about 6 a.m. the following day Louise’s mother discovered she was missing from her bed. The evidence strongly suggested she had been removed through the bedroom window. A flyscreen on the window had already suffered some damage, but examination revealed further damage to the screen observable the next morning. Despite an extensive police investigation and search Louise’s body has never been found.
The prosecution case at trial was a complex circumstantial case. A significant aspect of the evidence was results obtained from DNA analysis of samples obtained from a pyjama top which it was established was worn by Louise when she went to bed on the night of her abduction and which she had received as a Christmas present less than two weeks earlier.
Evidence established the presence of material bearing a DNA profile which statistically matched the appellant’s DNA profile on two samples taken from the pyjama top for analysis.[1] In addition the evidence established that subsequent to Louise’s abduction the pyjama top had been submerged in the Onkaparinga River and later rinsed thoroughly in tap water.
[1] Strictly speaking the evidence of DNA analysis was that it was an overwhelming statistical likelihood to have obtained the DNA profile extracted from the deposits on the pyjama top if the appellant was a contributor to that profile, rather than an unknown unrelated individual.
The pyjama top was found on 28 February 1983 in the front garden of a house in Hackham West occupied by KD. KD’s residence was around the corner from the Bell residence. KD did not know the appellant.
It was not in dispute that in January 1983 the appellant lived in Hackham West, was acquainted with Louise and knew where she lived, as Louise and his daughter, Petra, went to school together and were in the same basketball team.
The issue on appeal
The sole ground of appeal is that the verdict is unsafe and unsatisfactory and cannot be supported by the evidence. The appellant submits that the DNA evidence was an indispensable link in the chain of reasoning to the guilty verdict.[2] The prosecution had to prove two matters beyond reasonable doubt. First, that it was the appellant’s DNA on the pyjama top. Second, that his DNA was deposited on the pyjama top in circumstances which implicate the appellant in the commission of the offence of murder. On appeal there is no issue as to the first matter. The appellant submits that, in respect of the second matter, there was no evidence adduced by the prosecution capable of excluding as a reasonable possibility the innocent transfer of the appellant’s DNA to Louise’s pyjama top.[3] Accordingly, the appellant submits he should have been acquitted of the charge of murder.
[2] Shepherd v The Queen [1990] HCA 56, (1990) 170 CLR 573.
[3] Fitzgerald v The Queen [2014] HCA 28, (2014) 88 ALJR 779.
The respondent submits that there was a large body of evidence upon which the trial judge could rely to have been satisfied beyond reasonable doubt that the only reasonable explanation for the presence of the appellant’s DNA on Louise’s pyjama top was that he had abducted and murdered her.
In order to appreciate the significance of the DNA evidence to the prosecution case, it is convenient to set out the non-DNA evidence adduced by the prosecution.
Non-DNA evidence
In January 1983, the appellant and his family had been living for some years in Hackham West. Their residence was a short walking distance from the Bell residence. The appellant had a daughter, Petra Pfennig, who attended the Hackham West Primary School with Louise Bell. In 1982, they were in Year 5. However, they were not in the same class. They were in the same school basketball team. They had weekly practices and weekly matches between February and November 1982. They both attended a barbecue pool party at the coach’s house in late November or early December 1982 to celebrate the end of the basketball season. They both went on a school trip to Mount Gambier towards the end of 1982. Neither had a sleepover at the other’s house. While they were friendly they were not close friends. During 1982, the appellant, his daughter and Louise Bell had been observed on at least six occasions walking together from school towards their homes.
On Christmas Day 1982, the Pfennig family left Adelaide for a holiday in Victoria. The appellant returned home from the holiday on 3 January 1983, but his wife and their two daughters remained on holiday for another two weeks travelling from Swan Hill to Broken Hill.
On 6 January 1983, police declared Louise’s disappearance to be a major crime. They commenced door-knocking enquiries in the neighbourhood. They have no record of any response to the door-knock from anyone at the Pfennig residence. They have no record of any statement ever being given or any information received from the appellant about Louise’s disappearance.
In December 1982 and January 1983, RP lived next door to the Pfennig family. He watered the Pfennig’s lawn, at the appellant’s request, over the Christmas/New Year period in 1982/1983 while the family was away on holiday. When police came to knock on the door of the Pfennig house, RP was in his front yard. He told them the family was away on holiday. One or two days later, he was watering the lawn when he saw the curtains move in the house. After RP knocked a few times on the door, the appellant answered. The appellant’s appearance was dishevelled. This was unusual. They discussed Louise’s disappearance. RP told the appellant that, when police had come knocking, he said to them that the appellant was in Broken Hill with his family. The appellant replied that he had been “sprung” and had lost an alibi. RP treated this remark as a joke.
On 17 January 1983 KD was telephoned by an unidentified man who disclosed esoteric knowledge about the scene of the crime. The man spoke with a slight European accent. He instructed that, in order to prove that he had Louise Bell, KD should tell the police to turn over a broken brick at the corner of South Road and Beach Road, Hackham West, where they would find Louise’s earrings. This information was conveyed to the police who, upon investigation, found Louise’s earrings at that location under a broken brick. Louise had been wearing those earrings at the time of her abduction.
The location of the broken brick was occupied by a building which had formerly been the site of the Morphett Vale Primary School, where Petra Pfennig and Louise had earlier attended school. The site had subsequently become a library used by the Pfennig family and, later, a community centre at which the appellant played chess.
There was evidence, which the trial judge accepted, that in 1983 the appellant spoke with a German or European accent.
On 28 February 1983, KD found the pyjama top, worn by Louise on the night she was abducted, in her front garden. It was neatly folded. She brought it inside and placed it in a disused plant pot with the intention of disposing of it. After a while, she examined it and realised it was a pyjama top. She suspected it may have some connection with Louise’s abduction. She telephoned the police who took possession of it. Later that day, Senior Constable Roemer, a crime scene examiner, conducted an examination of the pyjama top. He first removed sea grass and algae. He took five tape-lifts each from the inner front, outer front, inner rear and outer rear surfaces of the top. Finally, he vacuumed the top and placed the vacuumings in a petri dish. He observed foraminifera and soil containing minerals in the vacuumings, together with a piece of yellow fluff.
On further analysis by six experts in biology and geology, the vacuumings were found to contain plant life (diatoms), micro-organisms (foraminifera), minerals (glauconite and pyrite) and soil. The sea grass, algae and diatoms were found to be consistent with the pyjama top having been immersed in the Onkaparinga River or another South Australian estuarine river. The soil contained very high levels of pyrite, suggestive of it having been obtained from the Onkaparinga River. The foraminifera and glauconite were strongly suggestive of the pyjama top having been in the Onkaparinga River. The lack of halite and salt was strongly suggestive of the top having been rinsed in tap water after having been immersed in an estuarine river. The appellant at trial did not challenge a finding being made that the top had been in the Onkaparinga River and subsequently rinsed, and the trial judge’s finding is not challenged on appeal. It is not disputed that the appellant had strong connections to the Onkaparinga River.
The evidence established the appellant had a keen interest in canoeing at the time of Louise’s abduction. He frequently went canoeing on the Onkaparinga River. He was one of only two people who had a key to the canoe shed located on the bank of the Onkaparinga River at Old Noarlunga. In about 1988, the appellant was paddling his canoe on the Onkaparinga River in the vicinity of Shelley’s Beach in company with four other canoeists. He told one of them that on a previous occasion his paddle had become caught up in some bones which he thought were probably human and referred to the police having found traces of substances on Louise Bell’s pyjamas. On two occasions, he suggested police should be looking for Louise’s remains around Shelley’s Beach. On another occasion, he told two of his fellow canoeists that Louise’s body was in the area where they were canoeing.
In 1983, the appellant was a high school teacher. Upon the resumption of the school year, he brought up in class the disappearance of Louise. He told his students that: “Louise Bell had been in his daughter’s class and that we should think ourselves lucky that we are not sitting there with someone missing from our class as it could quite easily have been – it could quite easily happen to any one of us.” There was evidence that the appellant told another student that Louise was one of his daughter’s best friends. That was not the case. He also told some colleagues that he taught Louise Bell gymnastics in a local class. He also said he was involved in the same youth group as Louise Bell. Neither of these statements were true. At about the time of Louise’s abduction, the appellant told a school counsellor at the high school where they both worked, that he was not allowed to discuss the Bell case because he was a person of interest. At that time, this was not true. Later, in 1985 or 1986, the appellant told a fellow teacher that because his daughter Petra and Louise were close friends, he had assisted the police. This was false. He told a colleague who worked in the school library that he lived two streets away from Louise Bell and could believe that it was possible to carry a child down the street without detection, because he used to walk the streets at night and he had never seen another soul.
There was evidence that the appellant used to walk the streets of Hackham West alone at night. From the street on which the Bell family lived, it was possible to see into the bedroom that Louise shared with her sister. The appellant had told work colleagues that he would go jogging at night and it was “interesting”, “surprising” or “amazing” what kind of things you could see through windows. The appellant’s former wife gave evidence that it was not uncommon for him to go for a walk in the middle of the night. The streets in Hackham West were very quiet at night and the appellant said that when he would go out at night he would never see another person.
Background to the DNA evidence
The appellant submits that the evidence does not exclude as a reasonable hypothesis consistent with innocence that there could have been transfer of the appellant’s DNA through contact between the appellant and his daughter, and from his daughter to Louise, and to Louise’s pyjama top. He further submits that that possibility is not excluded by the fact that the last contact between Petra Pfennig and Louise occurred sometime in late November or early December 1982 and the pyjama top did not come into the Bell household until shortly before Christmas 1982. He submits that the evidence does not exclude the possibility that the appellant’s DNA could have been transferred in this way to other clothing worn by Louise and then transferred through the process of clothes washing. Another possibility is that the appellant’s DNA having been transferred to Louise’s skin could have remained on her skin until contact transfer to the pyjama top. The appellant submits that the scientific evidence relating to DNA transfer does not exclude any of these hypotheses as reasonably possible.
The relevant evidence in this regard is that while Petra Pfennig was not in Louise’s class in 1982 there were some occasions when the year classes would combine for special lessons; there were combined sporting activities at school involving both classes; that in November 1982 Petra Pfennig and Louise went on a four day school camp where there was shared accommodation for the female students including showers and toilets; the basketball team to which Petra Pfennig and Louise belonged would practice after school early in the week and play games on Friday nights; both girls played regularly and Petra would always attend practice; each player was responsible for washing their own uniform and Sandra Pfennig, the appellant’s wife at that time, gave evidence that she did all the laundry for the Pfennig household and there were occasions when the children’s clothes were mixed in with those of the adults, including Petra’s basketball uniform; and both Petra Pfennig and Louise attended a pool party in late November or early December 1982.
Expert evidence
In June 2011 the petri dish containing the vacuumings, including the piece of fluff, and several of the tape lifts taken by Senior Constable Roemer, were sent by the police to Forensic Science South Australia (FSSA). The tape lift identified as item 74.3.3.B from the outer rear surface (‘the tape lift’) and the piece of fluff identified as item 74.2.A (‘the piece of fluff’) ultimately produced DNA profiles subsequently relied on by the prosecution as being the appellant’s DNA. In addition, there was a mixed DNA profile of two contributors obtained from another tape lift identified as 74.3.1.A which was taken from the internal front of the pyjama top. Only ten alleles were detected in that mixed DNA profile.[4] Mr and Mrs Bell, Rachel Bell and the appellant were excluded as being contributors to that mixed DNA profile.[5] There was very slight support for the hypothesis that KD did not contribute DNA to that mixed DNA profile.[6] Five of the ten alleles matched the DNA profile of Louise Bell.
[4]    Exhibit P204, T 2,261-2,262.
[5]    T 2,185-2,186.
[6]    Exhibit P162.
Senior Constable Roemer died in March 1984. His colleague, officer Van Dijk, took over the Louise Bell case. He conducted a review of the work undertaken by Senior Constable Roemer. In addition, he examined the pyjama top, vacuumings and tape lifts. He found in excess of 150 fibres on the top. These fibres are material visible only on microscopic examination. They were more likely to be foreign material rather than the fibres of the pyjama top.[7]
[7] T 2,779-2,782.
The tape lift and the fluff were analysed by Ms Natasha Mitchell of FSSA and, together with reference samples from the appellant and others, were subsequently sent to the Netherlands Forensic Institute (NFI) for further analysis by Mr Bart Blankers. The NFI undertook various analyses of these samples to calculate a likelihood ratio.
Dr Kokshoorn calculated a likelihood ratio from the tape lift sample using software developed at the NFI. The software is called “LRmix Studio”. This software was created under the supervision of Professor Peter Gill of the University of Oslo and the Norwegian Institute of Public Health. Professor Gill, Dr John Buckleton and others are pioneers in the use of probabilistic software to create a likelihood ratio.

In the meantime, Dr Duncan Taylor and Dr Buckleton had created software entitled STRmix to calculate a likelihood ratio. While this software was developed before LRmix Studio, it performed a similar function. Using STRmix the FSSA was able to calculate a likelihood ratio for the tape lift and the piece of fluff.
It was on the basis of this evidence that the trial judge found proved beyond reasonable doubt that it was the appellant’s DNA found on the pyjama top. This finding was not challenged on appeal.
At trial the prosecution called the following expert witnesses in relation to DNA:
·Mr Blankers of NFI;
·Dr Kokshoorn of NFI;
·Ms Susan Vintiner of the New Zealand Institute of Environmental Science and Research (ESR);
·Ms Mitchell of FSSA;
·Professor Adrian Linacre of Flinders University;
·Dr Taylor of FSSA;
·Dr Buckleton of ESR; and
·Professor Gill of the University of Oslo.
The prosecution adduced evidence from the DNA experts about the mechanisms for secondary transfer of DNA via another person or object. The evidence was that secondary transfer is possible and in fact occurs on occasion. Its likelihood and extent depends on variables including the nature, extent and length of the contact; the nature of the relevant surfaces; the length of time the DNA needs to persist on a surface; events occurring to the surface, including movement and washing; and how many successive transfers are involved.[8]
[8] T 2,128, T 2,423-2,424, T 3,040-3,041.
The DNA experts accepted that there are two questions in relation to DNA evidence which are entirely separate questions. They are: whose DNA it is on a particular exhibit, and what were the circumstances in which that DNA was deposited upon the exhibit.[9] Scientific knowledge can now answer the first question but not the second question. The experts agreed there is currently a lack of scientific certainty and knowledge as to why, when and how cells containing DNA are transferred and how they persist in particular circumstances. Ms Vintiner gave evidence that DNA testing cannot identify the source of the cells from which DNA is recovered, i.e. whether it is from blood, saliva or skin, and it is not possible to ascertain when the cells were deposited on an object.[10] Dr Kokshoorn said that common sense does not always apply to the manner in which DNA is found on particular items.[11]
[9] T 2,990-2,991, T 2,753-2,755.
[10] T 2,753-2,754.
[11] T 2,430.
Ms Mitchell similarly indicated that the FSSA could not comment on how long DNA had been on an item or how long it would persist. She said that the FSSA does not currently report that kind of evidence.[12] She said the lack of certainty extends to circumstances where DNA would be expected to be found and is not.[13]
[12] T 1,379.
[13] T 1,396.
Ms Mitchell was cross-examined about the possibility that the appellant’s DNA was transferred to Petra Pfennig or her clothing, it being transferred in turn to Louise or her clothing, and it being transferred in turn within the Bell household to the pyjama top. Ms Mitchell accepted these were possibilities, the likelihood of which would be affected by the factors referred to above.[14]
[14] T 2,140-2,143.
The appellant’s submissions on the DNA evidence
The appellant submits that the evidence establishes that DNA evidence cannot indicate the circumstances in which DNA is placed on a particular item or the circumstances in which that DNA persists. The fact that the pyjama top may have been in the Onkaparinga River and may have been washed does not preclude as a reasonable possibility that the DNA deposit found on the pyjama top may have been on the top for some period of time before it was found by KD on 28 February 1983. The evidence cannot indicate the type of cells from which the appellant’s DNA deposits could have been derived. He submits that the cells from which his DNA was said to have originated may have been from cells by a secondary transfer. Further, they may have come from a thread placed upon the pyjama top any time prior to Louise’s disappearance. He submits that there was evidence of continuous opportunities for transfer to occur and the scientific evidence cannot exclude them as being reasonably possible. Ms Mitchell’s evidence confirmed that she could not exclude as a possibility a general proposition that the appellant’s DNA could be transferred to Louise through the appellant’s daughter during school and other activities.[15] She confirmed that she could not comment as to when DNA came to be deposited on an item.[16] She could not comment on whether it would remain on an item from March 1982 because the DNA system does not give an indication of how old or aged is a DNA sample.[17] Nor could she exclude as a possibility that the appellant’s DNA could be found at Louise’s house without him physically having been present in the house.[18]
[15] T 2,142-2,148.
[16] T 2,147.
[17] T 2,148.
[18] T 2,148-2,149.9.
The appellant submits there was no other DNA found at the scene of Louise’s abduction that was analysed and linked to him. Further, he submits there was no other material associated with the pyjama top that was analysed which was linked to him. In addition, the appellant points to the evidence that DNA from another tape lift taken from the pyjama top was found to have a mixed DNA profile of at least two unknown contributors excluding the appellant and the other members of the Bell family, except Louise.
The appellant submits there was no evidence adduced by the prosecution to explain who the two contributors were to that mixed DNA profile on the pyjama top. He submits the evidence did not exclude the possibility that the persons who had contributed to that mixed DNA profile were involved in the abduction and murder of Louise.
This mixed DNA profile contained insufficient information to meet the policy limitations to run the evidence profile through the cold case database. The appellant submits that if it had been possible to run that profile through the cold case database there could have been a number of matches, some possibly with a higher likelihood ratio than that of the appellant.[19]
[19] T 3,117-3,118, T 2,308, T 2,310.
Further, he submits that the presence of that mixed DNA profile on the pyjama top tends to undermine the prosecution’s suggestion that the appellant’s DNA was deposited on the pyjama top after its immersion in the Onkaparinga River and subsequent rinsing. He contends that logically, on the prosecution case, the mixed DNA profile must have been deposited before the top was immersed in the river and rinsed. If the mixed DNA deposit survived that process so would the deposits left by him.
In these circumstances the appellant submits that there is no basis to suggest that the presence of the appellant’s DNA on the pyjama top is probative of the prosecution case that he was involved in the murder of Louise. As the DNA evidence was an indispensable link in the chain of reasoning, it needed to be proved beyond reasonable doubt.[20] Accordingly, he is entitled to an acquittal.
[20] Shepherd v The Queen [1990] HCA 56, (1990) 170 CLR 573.
Unsafe and unsatisfactory?
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) provides that the Court of Criminal Appeal:
[s]hall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence...
The principles applicable to the application of s 353(1) are stated by the plurality in M v R:[21]
[21] [1994] HCA 63 at [6]-[7], (1994) 181 CLR 487 at 492.
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v. The King, Isaacs J. said:
“If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.”
And as the Court observed in Davies and Cody v. The King, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:
“not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[Footnotes omitted].
Those principles are unaffected by the fact that the appellant was tried by judge alone, as explained by Gray J, with whom White J agreed, in R v Hore.[22]Gray J said:[23]
It is appropriate to outline immediately the role of an appellate court when faced with an argument that a verdict is unsafe and unsatisfactory. The High Court in Libke reiterated the test that had been espoused in M in the following terms:
…But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there is material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …
[Footnote omitted]
Both counsel accepted that this was the test to be applied by this Court in the resolution of this appeal. It is to be further observed that in order to establish that a verdict is unreasonable or that it cannot be supported by the evidence, it is not enough for an appellant to show that the evidence is open to criticism. The general principles referred to above are not affected by the fact that the defendant in this case was tried by Judge alone.
[Footnotes omitted].
[22] [2010] SASCFC 60.
[23] [2010] SASCFC 60 at [4].
Consideration
The DNA evidence fell to be assessed in light of the entire body of circumstantial evidence in the case.[24] In R v Doheny and Adams,[25] Phillips LJ observed:[26]
The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant.
[24] DPP v Paulino [2017] VSCA 38 at [23].
[25] [1997] 1 Crim App R 369.
[26] [1997] 1 Crim App R 369 at 373.
This reasoning was approved by the Court of Criminal Appeal of this State in R v Karger[27] in the reasons of Gray J, with whom Doyle CJ and Prior J agreed.
[27] [2002] SASC 294 at [186], (2002) 83 SASR 135 at 180.
The DNA evidence had to be considered in combination with the circumstantial evidence in determining whether there was an innocent explanation for the presence of the appellant’s DNA on the pyjama top.
While the accuracy and reliability of the scientific testing and statistical weighting of DNA deposited on an exhibit had to have been established beyond reasonable doubt before the evidence could be used as a piece of circumstantial evidence in the process of reasoning towards guilt, it is quite a separate issue as to whether the prosecution needed to disprove some innocent explanation for the presence of the appellant’s DNA on the pyjama top by evaluating the DNA evidence in isolation, as the appellant submits. I do not accept this submission.
In order to determine whether the elements of the crime of murder had been proved, the trial judge, as the finder of fact, was not only entitled to have regard to the other circumstantial evidence implicating the appellant but was obliged to do so. Given that there was no challenge to the judge’s finding that it is the appellant’s DNA which was found on the pyjama top, the only question that remains is whether the whole of the circumstantial evidence, including the DNA evidence, excluded all rational hypotheses consistent with innocence of the charge of murder.
In considering the issue on appeal it is important to distinguish between the evidence of experts that secondary or tertiary transfer of DNA is a theoretical or scientific possibility and the question of fact whether, having regard to all the evidence, transference of the appellant’s DNA to the pyjama top in innocent circumstances was a reasonable possibility.
While it was common ground between the experts that science cannot provide an answer to the question of the precise circumstances in which DNA might be transferred in a particular case, that does not preclude a trier of fact from making a finding as to the circumstances in which transference occurs in a particular case having regard to all the evidence, including the circumstantial evidence and the expert DNA evidence.
Relevantly there were two factors concerning DNA in this case. They were persistence and transference. The former was of particular significance because of the evidence that the pyjama top had been immersed in estuarine river water and then thoroughly rinsed in tap water.
Ms Mitchell[28] and Dr Taylor[29] from FSSA and Dr Kokshoorn[30] from the NFI gave evidence that with each step of transfer the amount of DNA and the likelihood of being able to obtain a DNA profile decreases.
[28] T 2,134-2,135.
[29] T 3,042.
[30] T 2,430.
In relation to the topic of persistence, Ms Mitchell gave evidence that there have been studies that have found that DNA may not persist after washing of clothing on which DNA has been deposited, or may be significantly degraded as a result.[31] Mr Blankers gave similar evidence.[32]
[31] T 2,618.
[32] T 2,889-2,890.
There was evidence that while secondary and tertiary transfer of DNA through contact between person and person or person and object is theoretically possible, the strength of that possibility reduces with each hypothetical transfer and with the time that elapses between each transfer.[33] Likewise, while the expert evidence establishes that it is possible for DNA to persist on an object for a long period of time, the longer period that DNA has to persist on an object the less likely that is to occur.
[33] T 1,397-1,398, T 2,126-2,147, T 2,613, T 1,975-1,976, T 2,422-2,430, T 3,039-3,042.
Dr Taylor explained the relationship between the concepts of transference and persistence in the following passage of evidence.[34]
Q.And is there a phenomenon known as a secondary transference.
A.Yes.
Q.Can you explain for us what that is.
A.When you are talking about contact DNA or any biological sample really, that can be transferred to an item from a person directly, so, for example, if I was to pick up my cup I am transferring my DNA directly to the cup. You can also have a number of intermediaries that my DNA can pass through on its journey to the cup. Meaning that even though my DNA is detected on the cup I haven’t touched it directly. So for a secondary transfer, you can imagine if I was to shake your hand and then you were to take a drink from your cup my DNA might be found on your cup because it is transferred primarily from my hand to your hand and then secondarily from your hand to your cup, even though I haven’t come into direct contact with the cup.
Q.Is it relevant to also know what that hand has done in between shaking your hand and coming into contact with the cup.
A.Certainly. And this is where you get another phenomenon which is complimentary to transfer and that’s persistence. So often in forensic literature they will talk about the transfer and persistence of DNA, and obviously a number of things can affect the initial transfer, but also a number of things can affect the persistence between the transfer and primary and secondary transfer. So, for example, the amount of time that’s elapsed between them, whether you’ve washed your hands, what sort of conditions your hands have been kept in, whether they have been inside and you haven’t been sweating or outside in the sun and you’ve been sweating. These sorts of things could all affect the persistence of DNA.
[34] T 3,039-3,040.
Given the factual findings made by the trial judge the potential mechanisms for innocent transfer of the appellant’s DNA to the pyjama top involved multiple steps.
The appellant’s hypothesis is that it was a reasonable possibility that his DNA was transferred to his daughter Petra and then to Louise who transported the appellant’s DNA to her home some time in 1982 where it persisted until it was then transferred to the pyjama top some time after Louise received it on Christmas Day 1982. The appellant contends that it is reasonably possible his DNA from two different samples from the pyjama top then persisted on the garment despite its immersion into the Onkaparinga River and its subsequent rinsing in tap water.
The trial judge rejected that hypothesis as fanciful. In my view, the judge was correct to do so. Given the state of scientific knowledge, the basis of the hypothetical tertiary transfer and the time involved, together with the existence of the appellant’s DNA on two separate locations on the pyjama top are so unlikely that I consider the trial judge was correct to exclude the appellant’s hypothesis as a reasonable possibility. The last possible contact between Petra Pfennig and Louise was at the pool party in late November / early December 1982. Further, the evidence does not demonstrate that any contact occurred between them on that occasion or on any other occasion in 1982 that would have given rise to transfer of the appellant’s DNA to Louise. As I say, Louise did not come into possession of the pyjama top until Christmas Day 1982. The pyjama top was machine washed before Louise’s abduction.[35]
[35] T 52-53.

The issue of persistence becomes particularly relevant to the question of when the appellant’s DNA came to be deposited on the pyjama top. One scenario is that the appellant’s DNA survived the immersion of the top in the Onkaparinga River and its subsequent rinsing with tap water. The other scenario is that the appellant’s DNA came to be deposited on the pyjama top after those events. In my view, either scenario excludes any innocent explanation for the deposit of the appellant’s DNA on the pyjama top as a reasonable possibility. On the former scenario, for the reasons I have explained already, the tertiary transfer hypothesis can be excluded as a reasonable possibility. On the latter scenario the deposit of the appellant’s DNA on the pyjama top after its immersion in the Onkaparinga River and its subsequent rinsing with tap water can only be explained by his role in the abduction and murder of Louise, given the circumstances in which the top came to be found by KD on her front lawn.
I am not dissuaded from this view by the appellant’s submission that the latter scenario is inconsistent with the presence on the top of a deposit containing a mixed DNA profile of two contributors. The appellant and Louise’s parents and sister were excluded as being contributors to that mixed DNA profile. There was very slight support for the hypothesis that KD was not a contributor to that mixed DNA profile, however, the likelihood ratio that she was not a contributor is four to one which the expert evidence describes as basically neutral.[36] Further, the FSSA were able to determine a DNA profile for Louise using her parents’ DNA profiles and blankets from her bed.[37] When her profile was compared to the mixed DNA profile found on the top, five of the 10 alleles present matched Louise’s profile. In my view the evidence of the mixed DNA profile does not undermine a conclusion that the appellant’s DNA was deposited on the pyjama top after its immersion in the Onkaparinga River and its subsequent rinsing. The evidence leaves open a finding that the presence of the mixed DNA profile of two contributors found on the top is the result of events occurring after the top was immersed in the Onkaparinga River and subsequently rinsed.
[36] Exhibit P162, T 1,501-1,502.
[37] T 1,507-1,508, T 2,618-2,619.
Given what occurred to the pyjama top: being deposited on KD’s front lawn; manually handled by her; placed into an old plant pot and transferred to a shopping bag before being seized by police; it would be surprising if no other DNA was detected using highly sensitive modern methods and equipment. What is significant is that, notwithstanding the number of samples taken over the years, the mixed DNA profile was the only DNA located on the top other than those samples which matched the appellant. DNA analysis of the tape lift resulted in a very high likelihood ratio. There was an extensive profile obtained which, while not complete, has at least one allele, sometimes two, at each locus, all matching the appellant.[38]
[38] Exhibit P175.
The appellant sought to rely upon the evidence of police officer Van Dijk as to the number of materials found on the pyjama top which Mr Van Dijk thought made it more likely the piece of fluff and tape lift were from material deposited on the pyjama top rather than the pyjama top material itself. While it is the case that it is not possible to identify conclusively whether the piece of fluff came from the pyjama top or was found on it, cellular material containing the appellant’s DNA was found on the fluff.[39] Ms Mitchell said that she was not aware of thread on the tape lift[40] but she used the whole tape lift from the pyjama top to obtain the appellant’s DNA profile from the cellular material found on the tape lift. Further, there is no basis to suspect that the material obtained from the tape lift resulted from some kind of cross-contamination in the crime scene examination section of SAPOL or at the FSSA. None of the appellant’s DNA reference samples were ever examined or processed at the same time or in the same room as the pyjama top or the fluff and tape lift obtained from the top.[41]
[39] Exhibit P 162, T,1491-1,492.
[40] T 2,130-2,132.
[41] Exhibit P133, T 1,330-1,331.
The verdict is not undermined either by the absence of the appellant’s DNA on the brick or the earrings found under the brick on 17 January 1983, or the flyscreen wire from Louise’s bedroom or the bedroom itself. The absence of the appellant’s DNA on these items does not exclude him as Louise’s abductor and murderer. In the case of the earrings a DNA profile could not be obtained. In the case of the brick there was insufficient DNA obtained from it to conduct DNA profiling.[42] In relation to the flyscreen wire, by the time it was submitted to FSSA for analysis it had already been separated from the aluminium frame.[43] In January 1983 an in situ examination had been conducted by the crime scene examiner Ronald List. The wire and frame had been removed from the window by officer Van Dijk on 7 January 1983 and placed on Louise’s bed until he seized it the following day.[44] Further, there was evidence of pre-existing damage to the flyscreen.[45] It can be inferred that someone must have manipulated it at some point prior to Louise’s abduction. A further examination of the flyscreen was conducted in 1983 in an attempt to determine how the damage had been caused to the flyscreen. More than 20 years later swabs were taken of both sides of the wire at FSSA and DNA was extracted from each of those swabs. Two of the swabs contained DNA from an inconclusive number of contributors and could not be analysed. One swab contained a mixed DNA profile of two contributors from which the appellant was excluded. The final swab contained a mixed DNA profile of three contributors with a statistical weighting favouring the exclusion of the appellant.[46] In circumstances where the flyscreen wire was handled by numerous witnesses and submitted for testing at a time when there was no knowledge of DNA analysis, the absence of the appellant’s DNA and the presence of other unidentified persons’ DNA on the screen is no basis upon which to find that it is reasonably possible that the appellant’s DNA came to be deposited on the pyjama top in innocent circumstances. The expert evidence is that many factors are relevant to whether a person will leave DNA on an item they handle and whether that DNA will persist on that item.[47] The absence of the appellant’s DNA on the flyscreen, the brick and the earrings does not lead to doubt about the manner in which the appellant’s DNA was deposited on the pyjama top, nor that it was the appellant who abducted and murdered Louise. Cogent support for this proposition can be found from the earrings. If there was any object on which one would have considered evidence of Louise’s DNA would have persisted it is the earrings, but it did not. A DNA profile of any person including Louise could not be obtained from her earrings. It follows that no particular significance attaches to the absence of evidence of the appellant’s DNA in Louise’s bedroom or on the flyscreen.
[42] Exhibit P162, T 1,502.
[43] T 1,505.
[44] T 599-600.
[45] T 41.
[46] T 1,503.
[47] T 1,393-1,396, T 2,146-2,148, T 2,424-2,430, T 2,889-2,890, T 3,040.
The appellant sought to place some reliance upon the judgment of the High Court in Fitzgerald v The Queen.[48] In my view Fitzgerald is distinguishable from this case. In Fitzgerald a group of men forced their way into a house and, using weapons including a gardening fork and a pole, attacked two men, the first of whom subsequently died, and the second of whom sustained serious brain injuries. The appellant was convicted by a jury of one count of murder and a second count of aggravated causing serious harm with intent. It was the prosecution case that the appellant and his co-accused were members of the group that forced entry into a house in circumstances where each member of the group was a party to a joint enterprise to cause grievous bodily harm to persons inside the house. The real issue at the trial was the sufficiency of the evidence to establish that the appellant was one of the group. To establish that fact the prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene. A forensic expert gave evidence explaining the differences between primary and secondary DNA transfer. The expert accepted the possibility that the appellant’s DNA in a sample taken from the didgeridoo was the result of secondary transfer.
[48] [2014] HCA 28, (2014) 88 ALRJ 779.
The High Court held the convictions to be unsafe and unsatisfactory. The Court found that the prosecution’s main contention, that the appellant’s DNA on the didgeridoo derived from the appellant’s blood, was not proved beyond reasonable doubt. A secondary transfer of contact or trace DNA was possible, and on the evidence there were at least two distinct occasions on which a secondary transfer of the appellant’s DNA to the didgeridoo may have occurred. Since the recovery of the appellant’s DNA from the didgeridoo did not raise any inference about the time when, or the circumstances in which, the DNA was deposited there, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack, so that the jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt. Alternative hypotheses consistent with the appellant’s innocence were not unreasonable and the prosecution had not successfully excluded them.
However, in Fitzgerald there was no other evidence linking the appellant to the crimes while in this case there is a substantial body of circumstantial evidence which implicates the appellant. In Fitzgerald six eyewitnesses at the scene failed to identify the appellant as being present, while there are no eyewitnesses in this case. Further, and importantly, Fitzgerald was a case of secondary transfer while this is a case of at least tertiary transfer and the hypothetical secondary transfer in Fitzgerald occurred over a period of less than eight hours whereas in this case the hypothetical tertiary transfer occurred over a period of weeks if not months.
Fitzgerald does not stand as authority for the proposition that where the evidence leaves open the possibility of secondary or tertiary transfer of DNA, the DNA evidence is of no probative weight. If that were so that would mean that in any case in which there was a theoretical possibility of secondary or tertiary transfer, no matter how fanciful, the trier of fact could not rely on the evidence to arrive at a guilty verdict.
In my view it was open for the judge to be satisfied of the appellant’s guilt beyond reasonable doubt having regard to all of the evidence, including the circumstantial evidence which, coupled with the DNA evidence, established a cogent basis for the judge’s verdict. The appellant lived near the Bell residence. He knew Louise. The appellant used to walk the streets of Hackham West at night. He had the opportunity to commit the crime given the absence of his family interstate at the time. He spoke with a German accent. The person who phoned KD on 17 January 1983 spoke with a mild European accent. That person was responsible for Louise’s abduction and murder. That same person deposited Louise’s pyjama top in the front garden of KD’s house on 28 February 1983. KD’s house was near the Bell residence and in the same suburb as the appellant’s residence. The appellant’s conduct following Louise’s disappearance was incriminating. His statement to RP when told that police had been doorknocking the neighbourhood searching for Louise to the effect that he had lost an alibi, even though equivocal when viewed in isolation, takes an incriminating colour when evaluated against his subsequent statements which manifest an unusual interest in Louise’s abduction and murder. This evidence, when considered in combination with the evidence of the identification of the appellant’s DNA profile on Louise’s pyjama top after it had been submerged in the Onkaparinga River and subsequently rinsed, excludes any innocent hypothesis for the presence of the appellant’s DNA on the top.
I come to that conclusion irrespective of whether the appellant’s DNA was deposited on the top before it was immersed in the Onkaparinga River and subsequently rinsed or after those events had occurred. Either way, I am satisfied, for the reasons I explained earlier, that the appellant’s DNA was deposited on the top in circumstances which implicate him in Louise’s abduction and murder.
Having regard to all this evidence, I do not consider that the trial judge must, as distinct from might, have entertained a doubt about the appellant’s guilt. As the High Court said in Libke v The Queen,[49] it is not sufficient to show that there is material which might have been taken to be sufficient to preclude satisfaction of guilt to the requisite standard. The appellant had to show that there is evidence which must be sufficient to preclude satisfaction of his guilt beyond a reasonable doubt. He has not done so. I am not persuaded that the verdict is unreasonable. Nor am I persuaded that the verdict cannot be supported having regard to the evidence.
[49] [2007] HCA 30 at [113], (2007) 230 CLR 559 at 597.
Conclusion
I would dismiss the appeal.