R v Ruzehaji; R v Nasradden

[2018] SASCFC 60

Supreme Court of South Australia

(Court of Criminal Appeal)

R v RUZEHAJI; R v NASRADDEN

[2018] SASCFC 60

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Lovell)

21 June 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Appeals against conviction.

The two appellants were each charged with three drug offences contrary to the Criminal Code Act 1995 (Cth) (‘the Criminal Code’): one count of trafficking in a commercial quantity of a controlled drug, one count of trafficking in a marketable quantity of a controlled drug, and one count of pre-trafficking in a controlled precursor.

The prosecution case was that CCTV footage taken on 15 October 2012 at the private storage premises, Safeco, depicted the two appellants moving the subject drugs from one storage unit leased by the appellant Ruzehaji, to another unit leased by Nasradden. The prosecution case was that either both of the appellants were in joint possession of the subject drugs, or one of the appellants was in possession of the drugs and the other was assisting him in performing the charged offences.

In respect of both appellants, as well as the CCTV footage, the prosecution relied upon a number of other items of circumstantial evidence including: the Safeco activity log, which recorded the dates and times of access to the respective storage units; and lease documents for the storage units, which had photocopies of the appellants’ respective drivers licences annexed to them. In the case against Ruzehaji, the prosecution also relied on: additional CCTV footage from 9, 12, 15 and 16 October 2012, showing a male of similar physical appearance to Ruzehaji attend Safeco in a vehicle similar to one registered to him, at times which, according to the activity log, corresponded to times when Ruzehaji’s storage unit was accessed; Ruzehaji’s DNA being found on tea towels in one of two wicker baskets moved between the units on 25 October 2012 (the other of which contained the subject drugs); and evidence that Ruzehaji had purchased locks of exactly the same appearance as those found on the two storage units.

In the case against Nasradden, as well as the CCTV footage, the prosecution relied upon a number of items of circumstantial evidence including: that Nasradden commenced leasing his storage unit 2 days before the alleged offending, at which time he requested a unit proximate to the unit registered to Ruzehaji; and that Nasradden and Ruzehaji were long-term friends.

Held by the Court (dismissing Ruzehaji’s appeal):

(1) Applying the precepts in M v The Queen (1994) 181 CLR 487, the jury acted reasonably in finding, in reliance upon the cumulative weight of all of the circumstantial evidence, that it was proven beyond reasonable doubt that Ruzehaji was the man said by the prosecution to be him in the CCTV footage of 15 October 2012 and that he was guilty of all three charges.

(2)     There was a clear inference available that the chain of evidence in relation to the tea towels was complete. The Judge’s directions to the jury concerning the DNA evidence were sufficient.

(3) It was open to the trial Judge to find that the information provided to Detective Brevet Sergeant Bentley was “sufficient to engender, and did engender… a reasonable suspicion that drugs and/or drug evidence might be found” in the storage units, so as to authorise the search of the unit pursuant to s 67(4) of the Summary Offences Act 1953. The Judge did not err as a matter of law in admitting evidence from that search, nor did a miscarriage of justice arise from the admission of that evidence.

(4) Although it would have been preferable for the trial Judge to have directed the jury in the precise terms of s 11.2A of the Criminal Code (relating to joint commission), his Honour nonetheless sufficiently directed as to the essential elements of joint commission as required by the Code and applied the law to the facts insofar as was necessary; his directions were in accordance with the wishes of defence counsel.

(5)     The trial Judge adequately directed as to the separate bodies of evidence concerning the respective appellants; no request for re-direction was made.

Held by the Court (allowing Nasradden’s appeal and acquitting him of each count):

(1)     The prosecution case was conducted at trial in such a way that the jury could only convict Nasradden of any of the charges if it was proven beyond reasonable doubt that he was the male depicted alongside Ruzehaji in the CCTV footage of 15 October 2012. The totality of the evidence was insufficient to disprove the reasonable hypothesis that the male depicted in that footage was not Nasradden.

Criminal Code Act 1995 (Cth) ss 302.2, 302.3, 306.4, 11.2A; Criminal Law Consolidation Act 1935 s 353; Summary Offences Act 1953 s 67, referred to.
M v The Queen (1994) 181 CLR 487, applied.
SKA v The Queen (2011) 243 CLR 400; R v Shah [2007] SASC 68; R v Parry [2017] SASCFC 66; Handlen v The Queen [2011] HCA 51; R v Bilick and Starke (1984) 36 SASR 321, discussed.
R v Gum [2007] SASC 311; R v Nguyen [2013] SASCFC 91; R v Colenso [2016] SASCFC 128, considered.

R v RUZEHAJI; R v NASRADDEN
[2018] SASCFC 60

Court of Criminal Appeal:  Peek, Nicholson and Lovell JJ

THE COURT

1. On 11 May 2018 this Court dismissed the appeal of Mr Amir Sabit Ruzehaji (‘Ruzehaji’) and allowed the appeal of Mr Aram Nasradden (‘Nasradden’) with reasons to be delivered later.  The following are those reasons.

2. The appellants were charged with the following three offences:[1]

   [1]    Counts 1 and 2 were contained in an Information dated as being “for arraignment on 12 October 2015”.  Count 3 was laid in a separate ex officio Information dated as being “for trial on 11 September 2015”.

   COUNT 1:

   STATEMENT OF OFFENCE

   Traffic in a commercial quantity of a controlled drug, contrary to section 302.2(1), or alternatively section 302.2(1) and section 11.2A of the Criminal Code Act 1995 (Cth).

   PARTICULARS OF OFFENCE

   Between about 5 July 2012 and 16 October 2012 at Windsor Gardens or elsewhere in the said State Amir Sabit Ruzehaji and Aram Nasradden, either alone or as part of a joint criminal enterprise, possessed 879.7 grams of methylamphetamine located in a storage unit at Safeco Storage and Removals, with the intention of selling any of it.

   COUNT 2:

   STATEMENT OF OFFENCE

   Traffic in a marketable quantity of a controlled drug, contrary to section 302.3(1), or alternatively section 302.3(1) and section 11.2A of the Criminal Code Act 1995 (Cth).

   PARTICULARS OF OFFENCE

   Between about 5 July 2012 and 16 October 20125 at Windsor Gardens or elsewhere in the said State Amir Sabit Ruzehaji and Aram Nasradden, either acting alone or as part of a joint criminal enterprise, possessed 1010.9 grams of cocaine located in a storage unit at Safeco Storage and Removals, with the intention of selling any of it.

   COUNT 3:

   STATEMENT OF OFFENCE

   Pre-traffic in a controlled precursor, contrary to section 306.4(1), or alternatively section 306.4(1) and section 11.2A of the Criminal Code Act 1995 (Cth).

   PARTICULARS OF OFFENCE

   Between about 5 July 2012 and 16 October 2012 at Windsor Gardens or elsewhere in the said State Amir Sabit Ruzehaji and Aram Nasradden, either alone or as part of a joint criminal enterprise, possessed 400 grams of pseudoephedrine located in a storage unit at Safeco Storage and Removals, with the intention of using any of it to manufacture a controlled drug; and with the intention of selling any of the drug so manufactured, or believing that another person intends to sell any of the drug so manufactured.

3. Each count charged in the alternative an offence either committed by the respective accused as a principal or alternatively as a joint principal by reference to the appropriate sections of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’). The reason for that method of alternative charging is that the prosecution case was that CCTV footage taken on 15 October 2012 at the private rental storage premises of Safeco at Windsor Gardens, an Adelaide suburb (‘Safeco’), depicts the two appellants moving the subject drugs and other items from one area (Unit 508) to another area (Unit 521); the prosecution case was that either both men were then in joint possession of the subject drugs or that one was in possession of the drugs and the other was assisting him in performing the offences charged.

   An overview of the prosecution evidence

4. The Safeco premises were open to the public during business hours but after-hours access could be physically gained if a person entered on a keypad at the front gate an individual access code (unique to each leased unit).

5. As to access to the individual leased units, the responsibility for locking individual leased storage units was that of the lessee; lessees could purchase locks at the premises, bring their own locks or leave their units unlocked.

6. However, irrespective of the matter of locking a unit, lessees accessing their leased units at any time (locked or unlocked) were supposed to enter on a keypad the individual access code unique to each unit; a failure to enter this code would not prevent access but it would cause a silent alarm to be triggered and recorded on the Safeco computer system.  This system recorded, and was able to produce, an ‘activity log’ (the ‘Safeco activity log’) which displayed, amongst other information, the dates, times and duration of access taken to both the Safeco premises (after-hours) and to the individual leased units (at any time), including any triggering of the silent alarm.

7. The prosecution relied on the Safeco activity log, and the Safeco CCTV footage, together with various other items of circumstantial evidence, to prove that the two men seen in the CCTV footage on 15 October 2012 were the appellants.  The evidence at trial included the following items.

8. As at 15 October 2012, Ruzehaji and Nasradden were long-term friends.  The terms of their conversations revealed in intercepted telephone communications between them made that quite clear.  It is also to be noted that Ruzehaji had been a witness to Nasradden’s marriage in 2009.

9. On 5 July 2012, Ruzehaji commenced to lease Unit 508 at Safeco.  The lease document (exhibit P9) signed by Ruzehaji contains his full personal and contact details and a copy of his driver’s licence with photographic identification (‘the Ruzehaji Unit 508 lease agreement’).  On each of the days 9, 12, 15 and 16 October 2012, the Safeco activity log recorded access to Ruzehaji’s unit (Unit 508) by the entry of the correct code and on each of those days, at times corresponding to those recorded in the activity log, the Safeco CCTV video footage showed a male person of similar physical appearance to Ruzehaji near the location of Unit 508 after office hours.  Further:

   -On each of these occasions, this person was recorded driving a silver sedan (seen in external CCTV Safeco footage).  On the Ruzehaji Unit 508 lease agreement Ruzehaji gave his vehicle details as registration number SO60-ASG.  It was proven that a silver Toyota sedan registration number SO60-ASG was registered to Ruzehaji Enterprises between 15 May 2012 and 21 October 2012.

   -The Safeco CCTV footage of 9 October 2012 showed this person wearing a green singlet; and later, on 19 December 2012, police seized a green singlet of the same appearance from Ruzehaji’s bedroom at his home premises.

   -The Safeco CCTV footage of 9 October 2012 and 13 October 2012 both showed that this person had a tattoo-like mark on the front of his left shoulder.  On 23 October 2012, a police officer conducting surveillance of Ruzehaji took a number of photographs of Ruzehaji; exhibit P24 contains three of those photographs which depict a tattoo at the same position on the front of his left shoulder.

10. On each of the days 12 and 13 October 2012, police intercepted telephone calls between the appellants in which they arranged to meet on the morning of 13 October 2012; and on the morning of Saturday 13 October 2012, Nasradden attended at Safeco and arranged to lease Unit 521.

11. On Saturday 13 October 2012, Nasradden spoke to Ms Wilby, a Safeco employee, about leasing a unit.  He did not initially inquire concerning unit dimensions; rather, he requested a unit that was “near to his friend’s unit”, Unit 508.  He knew the number of the unit but said that he did not know the name of the friend.  Ms Wilby proceeded to show Nasradden Unit 521 (which was relatively close to Unit 508).  Nasradden agreed to lease Unit 521 but specified that his lease was to commence from Monday 15 October 2012 and his lease was written so as to commence on that later date.  Ms Wilby attempted to explain to Nasradden that he would need to use his unique access code to access his unit but he stated that he would not need one as he would be coming in with his friend.  Ms Wilby further explained to him that he still needed to use his access code which was supplied to him.

    The events of 15 October 2012

12. The Safeco CCTV footage taken on 15 October 2012, showed two male persons arriving at about 8:30pm.  On the prosecution case:

    -The two men were similar in physical appearance to the appellants;

    -One of the persons (Nasradden on the prosecution case) carried two wicker baskets (one of which contained the drugs and precursor the subject of counts 1, 2 and 3) (‘the wicker baskets’) and a plastic bucket (containing iodine pril[2]) from Unit 508 to Unit 521;

    -The other of the persons (Ruzehaji on the prosecution case) carried a large, white, plastic bucket from Unit 508 to Unit 521; and

    -Safeco computer activity logs revealed that both Units 508 and 521 were accessed at about this time but only the entry code for Unit 508 (Ruzehaji’s unit) was used.  The silent alarm for Unit 521 (Nasradden’s unit) was activated.

    [2]    The evidence was that iodine is a precursor used with pseudoephedrine in the manufacture of methylamphetamine.

    The events of 16 October 2012

13. The exterior Safeco CCTV footage taken on 16 October 2012 showed a silver coloured car arrive at about 6:00pm.  Only one person is seen to alight, being the person who on the prosecution case was Ruzehaji.  He activates the keypad to the warehouse roller door and appears to retrieve a “blower vac” from the boot of the car.  The interior Safeco CCTV footage then shows the man walking toward Unit 521 carrying the blower vac.  Reference to the activity log shows that Unit 521 was accessed for about a minute (but without the individual pin code for that unit being entered).  The man is then seen (now without the blower vac) walking towards Unit 508 and the activity log shows that Unit 508 was accessed for about 11 seconds.  The man is then seen (without the blower vac) leaving the warehouse and returning to the silver car.

14. It is therefore the prosecution case that by about 6:00pm on 16 October 2012, Ruzehaji was exercising control over both Units 521 and 508 in the sense of opening both units and storing the blower vac in Unit 521.

15. About two hours later, at 8:40pm on 16 October 2012, police attended at Safeco.  They found Nasradden’s unit (521) to be secured by a combination lock which they cut off and seized.  The police then searched Unit 521 and found the blower vac referred to immediately above.

16. Of more importance, they seized the wicker baskets and the large white plastic bucket seen being carried on the 15 October 2012 CCTV footage.  One of the wicker baskets contained the methylamphetamine, cocaine and pseudoephedrine the subject of counts 1, 2 and 3 inside various plastic bags and containers.  The other wicker basket contained a number of other items including five tea towels (the ‘tea towels’). The plastic bucket contained 24.2kg of iodine, a precursor used with pseudoephedrine in the manufacture of methylamphetamine.

17. The total quantity of the seized substance containing the cocaine was 1,496g, of which 1,010.9g was pure cocaine; its estimated street value was between $1,179,360 and $1,347,000.  The total quantity of the seized substance containing the methylamphetamine was 1,504.5g, of which 879.7g was pure methylamphetamine; its estimated street value was between $1,467,500 and $1,504,500.  The total quantity of the pseudoephedrine was approximately 400g; its estimated value was $71,000.

    A DNA match on seized tea towels

18. Police also seized from Unit 521 the tea towels found in the second of the two wicker baskets.  Found on the tea towels was DNA which matched Ruzehaji’s DNA profile in that it was established that “it was at least two quadrillion times more likely that the major component of the observed DNA originated from Mr Ruzehaji than if it originated from an unknown and unrelated individual selected from random from the Australian Caucasian population”.

19. Some other items in addition to the tea towels were found in that second wicker basket and seized; the items, including the tea towels, were jumbled together and the possibility of secondary transfer of DNA was obvious.  The precise number of tea towels was not of any significance on the prosecution case.

20. The evidence was therefore led in very general terms.  The prosecution tendered: a video of the search (exhibit P2); photographs of the various items including the tea towels[3] (exhibit P4); and a document (exhibit P3) describing the photographs (exhibit P4) simply as “red checked tea towels”.

    [3]    The precise number cannot be discerned.

21. The (suggested) significance of the precise number of tea towels found and seized is considered below.

    Evidence concerning the lock seized from Unit 521

22. The lock on Unit 521 that was broken by the police to gain entry was received into evidence at trial as exhibit P5.  Mr Hsu, an eBay merchant, was called by the prosecution and gave evidence that in 2012 he, through his business “Ibazaar”, had imported from China a number of locks of exactly the same appearance as the lock exhibit P5; and that in September 2012 he had sold two of those locks to Ruzehaji through his then business, “Swarvie Saint” at Shop 27 Regent Arcade Rundle Mall, Adelaide for the sum of $24.75.

23. The prosecution tendered through Mr Hsu exhibits P18 (an eBay document), P19 (a Paypal document) and P20 (an Australian Post document) relating to the sale, payment and delivery respectively of those two locks; the buyer was therein stated to be “Amir Ruzehaji” followed by the words “Swarvie Saint” and the address as stated above.

24. Mr Hsu also gave evidence that, at the request of police, he had produced to them a sample lock that he still had in stock of the same type that he had sold to Ruzehaji in 2012; this sample lock was received into evidence as exhibit P21.

    The appellants are convicted and appeal

25. At trial both appellants were unanimously convicted.  Ruzehaji’s first ground of appeal is that the verdicts were unreasonable and he has four other grounds of appeal.  Nasradden’ first ground of appeal is also that the verdicts were unreasonable; his counsel argued only that ground but seeks to adopt, if necessary, the other grounds of Ruzehaji and the argument put thereon by his counsel.  We will first deal with Ruzehaji's appeal. 

    WERE THE VERDICTS AGAINST RUZEHAJI UNREASONABLE? (ground 1 of appeal)

26. It is well settled that the correct approach to the complaint that a verdict is unreasonable for the purposes of a common form statute such as s 353(1) of the Criminal Law Consolidation Act 1935 is that adumbrated by the High Court in M v The Queen.[4]  We also have regard to subsequent decisions of the High Court including the following remarks of French CJ, Gummow and Kiefel JJ in SKA v The Queen:[5]

    [20]   The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task.  The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence.  The applicant submitted in this Court that this reasoning demonstrated an “inverting of the process” required to be undertaken by the Court of Criminal Appeal.  The reasons of Simpson J indicate that her Honour considered what should have been the central question – whether on the evidence the Court was satisfied that the applicant was guilty of the offences – as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction.  As Deane, Toohey and Gaudron JJ made clear in Morris v The Queen, such an inquiry is not what is required by s 6(1) of the Criminal Appeal Act.

    [21]   To determine satisfactorily the applicant’s appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged.  …

    [22]   On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported.  …

    [4] (1994) 181 CLR 487.

    [5] (2011) 243 CLR 400, 408-409.

1. Without in any way adding a gloss to those statements of principle, we note the following statement of Doyle CJ in the South Australian decision of R v Shah:[6]

   [3]     The case is a difficult one.  Sulan J has identified a number of difficulties with the identification evidence relied on to prove that Mr Shah is the offender.  That identification evidence does not stand alone.  There is other circumstantial evidence that supports the prosecution case.

   [4]     The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening.  I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times.  It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable.  There was simply no basis upon which the jury could put that evidence aside.  This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack.   (Emphasis added)

   [6] [2007] SASC 68. This statement was adopted as a “helpful metaphor” in the Victorian Court of Appeal in R v Klamo [2008] VSCA 75, [40] (Maxwell P, with whom Vincent JA agreed) and also in the later decision of this Court in R v Place [2015] SASCFC 163, [79] (Sulan, Peek & Lovell JJ).

2. The evidence against Ruzehaji is outlined above.  For completeness, we note that there was no evidence of any exculpatory statement being made by him, there was no submission of no case to answer made at trial and he did not give evidence at trial.  We consider that the case against him was a strong one.

   The Safeco CCTV footage

3. As will be seen below, senior counsel for Nasradden played to this Court portions of the CCTV relevant to Nasradden and made detailed submissions as to why it was unsafe to find that he was one of the two men appearing on the critical CCTV footage of 15 October 2012.[7]  However, Mrs Shaw QC, senior counsel for Ruzehaji on the appeal, did not seek to play any portion of the CCTV footage to the Court and simply relied upon the relatively short portion of her written submissions directed to ground 1 of appeal (which in fact simply asserted what had been the defendant Ruzehaji’s position at trial).  The submissions were as follows:

   [7]    These matters are considered in some detail below.

   3.The appellant’s defence centred upon the identity of the men in the CCTV footage referred to in paragraph 2.4 above: see generally T746-750. In particular, the appellant’s case was that it was obvious from the CCTV footage that the man said by the prosecution to be the appellant on the 15 October 2012 footage was not him. Criticism was also made of the selective collection of CCTV footage.

   4.The other items of circumstantial evidence relied on by the prosecution were explained as follows:

   4.1.   Although the appellant had leased unit 508 it could not be disputed that other people had accessed that unit during the period of the lease; Safeco records when considered in conjunction with immigration records show that unit 508 was accessed while the appellant was overseas;

   4.2.   The chain of evidence was broken in relation to the DNA evidence. The unchallenged police evidence was that three tea towels were seized from the wicker basket in unit 521 whilst five tea towels were ultimately received by the forensic analyst. The DNA sample obtained from the tea towels was obtained by a single tape lift from all tea towels, so there was no way of saying from which tea towel(s) the DNA sample was obtained. There was also a risk of contamination because of the forensic practices of the officers who searched unit 521;

   4.3.   The defence witness Francesco Sergi gave evidence that he ordered the locks off eBay for use at the retail store he owned with the appellant. He produced the locks. The evidence relied on by the prosecution rose no higher than identifying similarity between the locks ordered off eBay and the lock on the door of unit 521; there was no evidence that they were identical.

   Ground 1: verdict unreasonable and cannot be supported having regard to the evidence

   5.The law in respect to this ground of appeal is uncontroversial. This Court summarised the principles in R v S[8] [A passage at [90] was here reproduced.]

   6.In light of the matters set out at paragraphs 3 and 4 above, no reasonable jury, properly instructed, could have been satisfied beyond reasonable doubt of the appellant’s guilt.

   7.In particular, the crucial evidence in the case was the CCTV footage of 15 October 2012, which apparently showed two men physically transporting the drugs and precursor the subject of the charges to unit 521. On a fair viewing of the CCTV footage in question, in combination with the other evidence in the trial, no jury could have found beyond reasonable doubt that the footage depicted the appellant.

   8.The balance of the circumstantial evidence in the case was insufficient to convict the appellant.   (Emphasis added)

   [8] [2015] SASCFC 179, [90]

4. The written submissions on behalf of Ruzehaji concerning the CCTV footage at paragraphs [3] and [7] above were not developed orally before this Court.  However, we have carefully reviewed the CCTV footage from 12, 15, 16 and 23 October 2012 and we conclude by reference to the clear and admitted photographs of Ruzehaji in exhibits P24[9] and 1D35[10] that his appearance is entirely consistent with that of the man alleged by the prosecution to be Ruzehaji in the CCTV footage from 12, 15 and 16 October 2012; and, in particular, is entirely consistent with the person seen carrying the drugs on 15 October 2015 being Ruzehaji.

   [9]    Exhibit P24 consists of three high quality colour photographs of Ruzehaji taken by a police surveillance officer on 23 October 2012.  His counsel at trial formally admitted that the photographs were of Ruzehaji.   

   [10] Exhibit 1D35 consists of a high quality colour photograph taken by a private investigator, Mr King, who was called as a witness by Nasradden.  It shows Ruzehaji and Nasradden standing next to each other so as to demonstrate that they are virtually the same height.  (Mr King also gave evidence of measuring the height of both men and that Ruzehaji is only one half of a centimetre taller than Nasradden.)

5. We find that it was well open to the jury, on the basis of all of the evidence in the case, to reject the positive submission referred to above that “it was obvious from the CCTV footage that the man said by the prosecution to be the appellant on the 15 October 2012 footage was not him”.  We also reject that submission insofar as it is put to this Court.  We also find that any criticism of “selective collection” is entirely unsubstantiated.

6. However, the correct approach on this appeal is not to consider whether “it was obvious that Ruzehaji was not the man shown on the 15 October 2012 footage” but rather whether, having regard to the precepts in M v The Queen,[11] the jury acted reasonably in finding that it was proven beyond reasonable doubt that it was Ruzehaji.  In order to answer that critical question, it is necessary to have regard to a number of submissions made by senior counsel for Ruzehaji to this Court concerning items of evidence to which she referred at paragraph [4] of her written submissions.  We now turn to those matters.

   [11] (1994) 181 CLR 487.

   The combination padlock found by police on Unit 521

7. Counsel submitted that the weight of the evidence of Mr Hsu (referred to above at paragraphs [22]-[24]) that the combination lock found by police on Unit 521 was of exactly the same appearance as a lock he had previously sold to Ruzehaji should be discounted by reference to the evidence of the one witness called at trial by Ruzehaji, a Mr Sergi.

8. In examination-in-chief, Mr Sergi gave evidence that he had previously been involved in the business “Swarvie Saint” (referred to on exhibits P18 to P20) at the time when Ruzehaji was involved in that business.  Sergi gave the following evidence:

   -That he himself had purchased from Mr Hsu the two combination locks referred to in exhibits P18 to P20;

   -That those two locks were both used at the “Swarvie Saint” premises;

   -That Ruzehaji, after his arrest on the present charges had asked him “to keep a hold of them because they might be important in his case”; and

   -That he had retained those locks until he had very recently produced them to Ruzehaji’s solicitor.

9. Mr Edwardson QC (who was then appearing for Ruzehaji) produced two locks to Mr Sergi in the witness box and, without Ruzehaji's solicitor being called and exposed to cross-examination, had the locks admitted into evidence as exhibit 1D34 in the following manner:

   QUltimately, did you hand them on to someone else?

   AYes, I did.

   QWho did you hand them on to?

   ATo Mr Patsouris.

   QIs that the gentleman sitting in court, the solicitor representing Mr Ruzehaji?

   AYes, it is.

   QI want you to look at two locks that I now produce.  Are they the two locks that were purchased by you on eBay?

   AYes.

   QThe ones that you’ve maintained in your custody until you handed them to Mr Patsouris?

   AThat’s correct.

   EXHIBIT #1D34 TWO LOCKS TENDERED BY MR EDWARDSON

   ADMITTED

10. We also note that when senior counsel had previously cross-examined Mr Hsu during the prosecution case, he had made no reference to the matters to which Mr Sergi would ultimately depose; and nor did he then produce for inspection by Mr Hsu (or the prosecution) the locks that would ultimately be tendered as exhibit 1D34 during the defence case.

11. In examination-in-chief, Mr Sergi was referred by counsel to the fact that the eBay document exhibit P18 (where the purchaser was listed as Ruzehaji) had the eBay user identification of “Alice Saphire Wilson 005”.  Mr Sergi stated that Ms Wilson had been Ruzehaji’s girlfriend at the relevant time.  As to this apparent inconsistency with his claim to be the buyer, Mr Sergi gave the following evidence:

    QWhy is it that the details of Alice Wilson and in particular the name Amir Ruzehaji appears in the document if you were making that purchase?

    ABecause we used to, like I said, use a computer system and that was you know, for the shop and it was like an auto fill so I went on to eBay and basically logged in and whoever had used it last, it would auto fill it.  So I didn’t really ever have like an eBay account myself, so for that I remembered the details of the password details anyway.  That was the one that must have been used last so I just pressed enter and it logged in.

12. Mr Sergi was cross-examined by prosecution counsel at some length.  He stated that he had first been asked to give evidence only “a couple of days ago” (he was giving evidence on Friday 15 September 2017 and the trial had commenced on Monday 11 September 2017).  It was suggested to Mr Sergi that he was lying in his evidence and that the exhibit 1D34 locks had in fact been supplied to Mr Sergi by Ruzehaji shortly before he had given them to Ruzehaji’s solicitor.

13. Senior counsel for Ruzehaji submits to this Court that, in the light of the evidence of Mr Sergi, little was left of the evidence of Mr Hsu.  We do not agree.  Even if one were to accept the evidence of Mr Sergi in full, the evidence of Mr Hsu remained clear and unchallenged.  Still left intact is the remarkable set of circumstances that, at that very time when the business ‘Swarvie Saint” (in which Ruzehaji was then involved) had in use at its premises in Adelaide two combination locks purchased from Mr Hsu, an apparently identical combination lock came to be placed on Safeco Unit 521 on about 15 October 2012.  Ruzehaji was closely linked to the Safeco premises, and specifically to Unit 508 at those premises, by the united force of the evidence referred to above.  He was also specifically linked to Unit 521 by the united force of the following circumstances:

    -His close relationship with Nasradden (the lessee of Unit 521);

    -On each of the days 12 and 13 October 2012, police intercepted telephone calls between the appellants in which they arranged to meet on the morning of 13 October 2012;

    -On the morning of Saturday 13 October 2012, Nasradden attended at Safeco and arranged to lease Unit 521;

    -The close juxtaposition of access to both Units 508 and 521 over the period of 13 to 15 October 2012;

    -The CCTV footage on 15 October 2012 apparently depicting items being moved from Unit 508 to Unit 521 by two men; and

    -That one of the two men last referred to appears similar in appearance to Ruzehaji. 

14. But, of course, quite irrespective of those considerations, the jury were not bound to accept the evidence of Mr Sergi.  It was suspicious for a number of reasons.  The jury saw and heard Mr Sergi give evidence and observed his demeanour, a matter that may have been significant; for example, one part of the cross-examination is as follows:

    QWhere had you kept them?

    AI kept them at home.

    QWhere?

    AIn a drawer at home.

    QWhere?

    AIn my underwear drawer at home.

    QHow long had you been keeping them there?

    AFor a fair while.

    QFor years on your version?

    AThat’s how long this has gone out for, yeah, it was about that period of time.

    QSo he said ‘Look I need the locks for Harry’?

    AYes.

    QDid you know who he was referring to?

    AHe said for my solicitor, so yeah, he actually told me to give him a call and I arranged to come in and that’s exactly what happened.

    QSo you then delivered locks to Harry?

    AYes.

    QWere you with Mr Ruzehaji?

    ANo, I wasn’t.

    QDid you order, Mr Sergi, those two locks?

    AYes, I did.  The two locks that were in the store.

    QSometime after Mr Ruzehaji’s arrest?

    ANo - what do you mean ‘sometime after’?

    QJust that.

    ANo, it was before the arrest.

    QDid you and Mr Ruzehaji cook up some arrangement whereby one or other of you ordered two locks sometime after his arrest?

    ACertainly not.

    QAre you sure about that?

    AYes.

    QDid Mr Ruzehaji bring to the OG Hotel about a week ago two locks to give to you?

    ANo, he didn’t.

    QWell, you paused, are you sure?

    AYes, I am.

    QWhy did you pause when I asked you that question?

    AThere is no reason for it.

    QWasn’t that the case that Mr Ruzehaji gave you two locks and said ‘You need to take these to Harry’?

    ANo, that’s not the case.

    QYou see, I suggest you’re not telling the truth about the conversation with Mr Ruzehaji after his arrest about you needing to hang onto the locks.  You see, I say you’re not telling the truth about that; what do you say?

    AI say I am telling the truth about the conversation.

    QYou see, what I’m saying is that the two locks have come into existence, the ones that have been tendered recently after Mr Ruzehaji’s arrest; that’s true, isn’t it?

    ANo, it’s not true, no.

    QDo you have any records that show the purchase of the locks?

    ANo, I’ve got no records of them.

    QThe only record that you know of is the one that’s been shown to you in court today; is that correct?

    AThat’s correct.

    QAnd you saw that, did you say, when you met with the solicitor?

    AYes.   (Emphasis added)

15. It was well within the province of the jury to reject Mr Sergi’s evidence as the prosecution contended should be done.

    The DNA match between Ruzehaji and the tea towels found in Unit 521

16. We understood senior counsel for Ruzehaji to submit on the appeal that the DNA match between Ruzehaji and the tea towels found in Unit 521 could have arisen as a result of some form of contamination or transfer of his DNA to the tea towels rather than through direct deposition of DNA from his person to the tea towels.

17. It is to be emphasised that the police personnel involved with the search of Safeco had had no contact with Ruzehaji such that they could have been contaminated with his DNA before travelling to Safeco on 16 October 2012.  Further, while the matter is not expressly dealt with in the evidence, it seems clear that the police proceeded straight to Unit 521 where they immediately commenced to seize and bag the items found there, including the tea towels.  This is hardly surprising since their information was that the suspected items had been transferred to that unit.

18. Mr Edwardson suggested at trial that a police video recording of the search reveals that one of the officers did not change his gloves as often as he should while searching Unit 512, such that he could have unwittingly transferred Ruzehaji’s DNA to the tea towels.  However, this would only seem to promote a theory that Ruzehaji’s DNA could have been transferred onto the tea towels from elsewhere in Unit 521; and even if such had occurred, it would have hardly affected the probative weight of the DNA finding, the main significance of which was that the DNA was found inside Unit 521.

19. However, for completeness, Mr Edwardson did go on to suggest that one of the police officers could have contaminated himself on his way to Unit 521 by touching the bannister on the stairs leading to that unit and thus picking up DNA that had been randomly and coincidentally left at that very point on that bannister by Ruzehaji at some previous, unspecified time (presumably amongst the DNA similarly left on that bannister by hundreds of other users of the premises).  This appears to be a highly unlikely scenario.

20. We have considered all of the submissions concerning the DNA match but find them to be of little weight in all of the circumstances.  No doubt the jury took all of the submissions into account at trial and gave them the weight they thought appropriate.[12]

    [12] Senior counsel also submitted that the evidence of the DNA match between Ruzehaji and the tea towels should not have been before the jury.  That separate submission is considered below in our examination of ground 2 of appeal.

    Prior access to Ruzehaji’s unit while he was overseas

21. A further submission made in writing, but not developed on the hearing, was that after Unit 508 had been leased by Ruzehaji on 5 July 2012, it was accessed while Ruzehaji was overseas for the period from 6 July to 8 August 2012.  We find that, in all of the circumstances, this matter carries little weight.

    Conclusion concerning Ruzehaji’s ground 1 of appeal 

22. We conclude that it was well open for the jury to find beyond reasonable doubt that Ruzehaji was one of the two men shifting the drugs on 15 October 2012 on the basis of the whole of the evidence at trial.  We conclude that the whole body of circumstantial evidence at trial was well capable of excluding any reasonable hypothesis consistent with innocence and in fact did so.  Applying the precepts in M v The Queen,[13] we do not consider that, on the whole of the evidence, the jury should have held a doubt concerning the guilt of Ruzehaji, and we do not hold any such doubt. 

    GROUND OF APPEAL 2:  DNA EVIDENCE

    2.The Learned Trial Judge erred in law in the admission of, and directions relating to, the DNA evidence:

    2.1.   The Learned Trial Judge erred in admitting the evidence of the tea towels from which DNA samples were obtained;

    2.2.   The Learned Trial Judge erred in admitting the evidence of the DNA samples themselves; and

    2.3.   The Learned Trial Judge erred by failing to give any or sufficient specific directions relating to the reliability of the DNA sample taken from the tea towels.

    [13] (1994) 181 CLR 487.

    A matter of chronology:  the pre-trial application to exclude the DNA evidence

1. A pre-trial application was made to exclude the DNA evidence.  Full argument was heard and on 11 August 2017, well before the commencement of the trial, the trial Judge ruled that the evidence would be admitted.  His Honour delivered reasons for that ruling which correctly summarised the specific bases upon which the application had been made.  Thus his Honour stated:[14]

   [138] The thrust of the challenge to the admissibility of the DNA evidence is that the evidence is not capable of being circumstantial evidence linking the accused with the drugs.  There is such a risk of contamination of the tea towels, or secondary or subsequent transfer of the accused’s DNA to the tea towels, that the presence of R’s DNA on the tea towels should be excluded.  Even if the evidence is strictly capable of being circumstantial evidence of the accused’s association with the drugs, the slight probative weight of the evidence is outweighed by the prejudicial effect, such that it should be excluded in the exercise of the Christie[15] discretion.  There is a danger of the ‘CSI effect’ that is, the jury may give to the DNA evidence greater weight than it is truly capable of bearing.

   [14] R v R & Nasradden [2017] SADC 111.

   [15] [1914] AC 545.

2. The Judge then dealt with the facts upon which the challenge was based, including matters of possible contamination of the tea towels through inadequate wearing or changing of gloves.  His Honour noted that:

   [141] There are several possible mechanisms by which contamination of the tea towels might have occurred.  If the police had put on their gloves before they entered the warehouse they might have touched the stair rails on the way up to the unit 521.  R might have shed some DNA on those stair rails and there may have been a secondary transfer to the gloves and the tertiary transfer to the tea towels.  In the course of handling some of the exhibits in the unit there might have been a secondary transfer of R’s DNA to the gloves then tertiary transfer to the tea towels.

3. The Judge then considered various aspects of the law relating to the admission of DNA evidence and referred to a number of relevant authorities.  His Honour later concluded:

   [146] In my view a consideration of those cases does not assist in the assessment of the weight of the DNA evidence in this case.  The facts of each case are different.  In the present case the presence of the accused’s DNA on a tape lift taken from the tea towels in the larger wicker basket is of sufficient probative weight to be a piece of circumstantial evidence of R’s connection with the tea towels or other exhibits in the unit.  Compared to the other evidence linking R to the unit and the larger wicker basket, the DNA evidence may be less significant but it is of some appreciable weight.  The jury will have to bear in mind the criticisms that are made of the possibility if secondary and tertiary transfer but those are matters within their province as fact finders.  I rule that the DNA evidence is admissible against R.

4. It is manifest that the pre-trial objection to the admission of the DNA evidence was fought on conventional and understandable lines.  It had nothing whatever to do with the clash now asserted between “three tea towels” and “five tea towels” that forms the basis of the present argument of the appellant reproduced immediately below; this matter was only to surface at the trial itself, well after the pre-trial application for exclusion had been disposed of and the admission of the DNA evidence was never objected to on this belated basis.

   The written submissions for Ruzehaji on appeal filed on 11 April 2018

5. The entire written submissions of senior counsel for Ruzehaji filed on 11 April 2018 concerning ground 2 of appeal are as follows.  First, in the context of a preliminary overview of the various complaints of the appellant, it was stated at paragraph [4.2]:

   4.2The chain of evidence was broken in relation to the DNA evidence.  The unchallenged police evidence was that three tea towels were seized from the wicker basket in unit 521 whilst five tea towels were ultimately received by the forensic analyst.  The DNA sample obtained from the tea towels was obtained by a single tape lift from all tea towels, so there was no way of saying from which tea towel(s) the DNA sample was obtained.  There was also a risk of contamination because of the forensic practices of the officers who searched unit 521

6. Later (after dealing with ground 1 of appeal), ground 2 of appeal was dealt with in full as follows: 

   Ground 2: DNA evidence

   9.The evidence of the police officer Sheehy was that three tea towels were seized from the wicker basket in unit 521 that did not contain the drugs and precursor the subject of the charge.  The evidence of the forensic analyst Stone was that five tea towels were delivered for analysis. 

   10.In light of the obvious difficulties with the chain of custody, the evidence ought not to have been admitted.  The tea towels forensically analysed were of unknown provenance.  In R v Gum, there was a defect in the chain of evidence relating to the appellant’s reference DNA sample, but an inference available that the chain was complete. Vanstone J (with whom Duggan and Kelly JJ agreed) held (at [22]):

   …there is no rule that requires conclusive proof of a chain of evidence any more than any other fact in issue.  Whether a jury is prepared to draw relevant inferences is for it to say: see Dimitriou v Samuels (1975) 10 SASR 331 per Bray CJ. Consequently I consider that there was sufficient proof before the jury on the basis of which it could conclude that Mr Sobieraj’s opinions were based on the analysis of the appellant’s reference sample.

   11.This is not such a case.  The five tea towels analysed by Ms Styles were demonstrably not (or not entirely) the three tea towels seized from unit 521.  To adapt the words of Vanstone J set out above, there was no proof upon which the jury could conclude that the opinion of Ms Styles (adopted by Ms Stone) were based on the analysis of the tea towels seized from unit 521.

   12.This is particularly so in light of the evidence that the DNA sample was taken from a single tape lift of all five tea towels, so that it could not be said:

   12.1. Which of the five tea towels were the ones seized by police; or

   12.2. Which of the five tea towels were the ones bearing the appellant’s DNA.

   13.At the least, the evidence once given ought to have been removed from the jury’s consideration or a specific direction was required to treat the DNA evidence with particular caution in light of the uncertainty as to the source of the sample that matched the appellant’s DNA.

   14.The caution contained at page 14 of the summing up (AB159), given in the context of a recitation of the defence case, was insufficient in the circumstances.  In particular, it made no mention at all of the discrepancies in the evidence referred to in paragraph 9 above.  Specific reference was made to the tape lift and the tea towels at page 16 (AB161) of the summing up in the context of a recitation of the prosecution case.  Again, no reference was made to the discrepancy between the number of tea towels seized and the number examined.

   15.The only mention of the discrepancy in the summing up was at pages 19-20 (AB164-165).  The learned trial judge stated “There was uncertainty about the number of tea towels seized.  Detective Sheehy said there were three, Ms Styles recorded five, four of which were folded”.  It is submitted a specific warning was required and a general statement of the nature of the evidence was insufficient.

7. Thus, on the appeal, the pre-trial decision of the Judge (referred to above) was simply not challenged.  Rather, senior counsel submitted that the Judge had “erred in law” in admitting the DNA evidence at trial on the purported basis that it was clearly demonstrated that there was a stark break in the chain of custody as demonstrated by a three tea towel – five tea towel clash (even though there had been no objection at all on this basis when the evidence was tendered).

8. No reference was made in these written submissions to the question of how such a disconcerting state of affairs (asserted to constitute an “error of law”) might have come about.  And nor did senior counsel, on the hearing of the appeal, initiate any reference to the handwritten list of seized items in exhibit 1D7 wherein lay, as appears below, the answer to the above question.

9. However, as the hearing of the appeal progressed, members of the bench drew attention to exhibit 1D7 and to the trial transcript which can be shown to have been the genesis of this matter.  At trial, the prosecution had called Mr Sheehy, an Australian Federal Police (‘AFP’) officer who attended at the premises of Safeco on 16 October 2016 and was assigned the role of exhibits officer, performing duties involving the collecting, recording and processing of items of evidence seized at the scene.  One of his tasks was to make a hand written list of all items seized with the appropriate details.  He was examined-in-chief and was then cross-examined by Mr Edwardson.  The following passage in cross-examination appears after the original handwritten list of seized items and a subsequent typed version of that list had been received together as exhibit 1D7:

   QBear with me, how many tea towels were there inside that large cane basket?

   AFrom memory, there were a few.

   QThere were a few; what did you record in your - have a look at the digital, have a look at the entry.

   AYep, three red.

   QThree red checkered tea towels, is that right?

   ACorrect.

   QThat comes from three which is recorded in your handwritten notes as well?

   AYes.

   The number of tea towels actually seized by police on 16 October 2015

10. Thus, Mr Edwardson specifically referred Mr Sheehy to the typed exhibit list in exhibit 1D7 (“have a look at the digital”) and the typed number three in that typed document is there plain for all to see.  However, what was not remarked upon was the fact that the original corresponding handwritten entry concerning the tea towels on the first page of the original handwritten list in exhibit 1D7 contained a figure which, although poorly written, very definitely looks much more like a number five than a number three.  That page appears as “Annexure A” to this judgment.

11. Of course, in the passage reproduced above, Mr Sheehy acceded to the general proposition that the number three in the typed version “comes from three which is recorded in your handwritten notes as well” but such acquiescence was clearly on the basis that such was the methodology for all of the items found in a search – all of the entries in the typed list were indeed based on the original handwritten entries in the handwritten list.  As a matter of fairness, Mr Sheehy should have been referred to his original handwritten entry.  If he had been, there can be no doubt that he would have realised that his poorly written number five had been incorrectly transcribed as a number three in the typed version.

12. Now, it is not known whether it was Mr Sheehy or someone else who transcribed Mr Sheehy’s handwritten list, but whether it was he or someone else, there is no doubt that some legitimate criticism could have been made by defence counsel as to the laxness of a system which permits such a transcription error to occur.  However, the following attack in the final address of defence counsel went well beyond that type of submission:

    While I’m on it, the tea towels, according to the handwritten log and the electronic log and the evidence of Sheehy, there were three tea towels seized by SAPOL.  By the time the tea towels get to the AFP in particular Ms Styles who was responsible for the tape lifts, there were five towels, four of which were apparently folded.  Who folded them?  We know not.  Was it one of the police officers who was involved in the search of unit 508?  When were they folded?  We don’t know.  Neither the video nor the still photographs assist you in identifying how many tea towels were in fact in that wicker basket.  On the unchallenged evidence of Sheehy, there was only three.  No re-examination by the prosecution and no attempt to explain this anomaly.  You might think in all, this is highly unsatisfactory and cannot give you any confidence in a case that is underpinned by such a poor police investigation.  The tea towels are the only exhibit which on the prosecution case has a DNA profile found which provides, to use Ms Stone’s expression, ‘extremely strong support’ for the proposition that Mr Ruzehaji was the source of the major component of that profile.

13. Of course, prosecution counsel had addressed the jury first, but one might have expected that prosecution counsel might have “smelled a rat” on hearing the above passage in the defence address; would have had a look at the hand written exhibits list; and would have drawn the matter to the Judge’s attention with a request for an appropriate direction to the jury that they might wish to consider whether all of this might be simply explained by the simple transcription error referred to above.  However, that did not occur and the matter was not corrected by the Judge in his summing up.

14. However, of present concern is what occurred during the appeal process.  Senior counsel for Ruzehaji had a complete copy of exhibit 1D7, including both the typed and original handwritten versions of the list.  Despite this, she drafted and forwarded to the Court the written submissions reproduced above; and on the hearing of the appeal sought to rely on those written submissions without drawing the relevant matters relating to the original handwritten list as canvassed above to the attention of the Court.

15. We consider that the present situation is not dissimilar to the situation that occurred in the relatively recent decision of this Court in R v Parry.[16]  In that case, additional prosecution evidence was produced to the defence very shortly before trial in circumstances where the defendant had spent a considerable period on home detention bail awaiting trial.  It was emphatically stated to this Court by senior counsel that this had placed the defendant in an invidious position in that if a defence application for an adjournment had been made and granted, the defendant would have been subjected to a further lengthy period on home detention bail awaiting the new trial date.  However, senior counsel did not draw to the Court’s attention the fact that prosecuting counsel had previously made it plain in email correspondence with defence counsel at trial that if an application for an adjournment for a new trial date were made the prosecution would agree to simple bail.  The Court observed:

    [67]   While it is not suggested that senior counsel deliberately misled the Court, it is most regrettable that her written and oral submissions referred to above were not an accurate or fair representation of the prosecution position, or of the email correspondence referred to above.  It is now quite clear that, if at trial there had been a defence application for an adjournment with simple bail, together with a prosecution intimation that that was not opposed, the Judge would clearly have made an order in those terms.

    [16] [2017] SASCFC 66.

16. In not dissimilar circumstances in the present case, it was emphatically stated to this Court by senior counsel in written submissions that:[17]

    The chain of evidence was broken in relation to the DNA evidence.  The unchallenged police evidence was that three tea towels were seized from the wicker basket in unit 521 whilst five tea towels were ultimately received by the forensic analyst.  … The evidence of the police officer Sheehy was that three tea towels were seized from the wicker basket in unit 521 that did not contain the drugs and precursor the subject of the charge.  The evidence of the forensic analyst Stone was that five tea towels were delivered for analysis.  … In light of the obvious difficulties with the chain of custody, the evidence ought not to have been admitted.  The tea towels forensically analysed were of unknown provenance.  In R v Gum, there was a defect in the chain of evidence relating to the appellant’s reference DNA sample, but an inference available that the chain was complete.  … This is not such a case.  The five tea towels analysed by Ms Styles were demonstrably not (or not entirely) the three tea towels seized from unit 521.  To adapt the words of Vanstone J set out above, there was no proof upon which the jury could conclude that the opinion of Ms Styles (adopted by Ms Stone) were based on the analysis of the tea towels seized from unit 521.

    [17] The full written submission from which the following passages are taken is reproduced above.

17. To the contrary, the present was indeed a case like R v Gum[18] in that there was clearly an inference available that the chain was complete, namely that the whole kerfuffle could be quickly and simply explained by looking at the original handwritten list of exhibits wherein it plainly appeared that the number of tea towels was originally noted as “five” rather than “three”.  It is most regrettable that senior counsel chose to advance such a flawed argument to this Court.

    [18] [2007] SASC 311.

18. The Judge’s directions to the jury concerning the DNA evidence were clearly sufficient and senior counsel at trial did not request any further directions.

19. We reject ground 2 of appeal.

    GROUND OF APPEAL 3:  THE POLICE SEARCH

20. Ground of appeal 3 asserts:

    3.The learned trial Judge erred in law by failing to exclude the evidence of the search.

    What is the error of law asserted?

21. The first task that arises is to delineate what is the error of law being relied upon.  After some discussion on the hearing, this question was answered thus:

    PEEK J:    Well, I’m really just trying to look at your ground of appeal and just see how one phrases the error of law to which you refer.  That’s all.  Can I suggest this - is this what you’re really contending that the error of law is: that no reasonable person could have made a particular finding on the basis of the evidence in the case.  And you then go on to analyse the evidence to demonstrate that error of law, is that the situation you’re putting?

    MRS SHAW:      It is.

    PEEK J:    Okay.  At least I understand that.   (Emphasis added)

    The objection to admission at trial and the voir dire hearing

22. A pre-trial application was made to exclude the evidence of the items found and seized as a result of a search by South Australian Police (‘SAPOL’) officers of Safeco Unit 521 on 16 October 2012 pursuant to a general search warrant held by former SAPOL officer Talei Bentley.  The Judge conducted an evidentiary voir dire hearing commencing on Monday 4 September 2017.  The witnesses called were Mr Adams (CEO of Safeco), Mr Steen (a Safeco employee), Federal agent Simon Warwick, SAPOL officer Daniel Gillan and former SAPOL officer Talei Bentley.  On 7 September 2017, the Judge ruled that the evidence would be admitted.  His Honour later delivered his detailed reasons which are considered below.

23. Section 67(4) of the Summary Offences Act 1953 (SA) (‘Summary Offences Act’) relevantly provides as follows:

    (4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:

    (a)     the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—

    (i)an offence has been recently committed, or is about to be committed; or

    (ii)     there are stolen goods; or

    (iii)there is anything that may afford evidence as to the commission of an offence; or

    (iv)there is anything that may be intended to be used for the purpose of committing an offence;

1. For the purposes of s 67(4) of the Summary Offences Act, the police officer must “reasonably suspect” that a person possesses an illicit substance.  The suspicion must actually be produced in the mind of the police officer by some information or material which has a rational connection between the supporting material and the suspicion held.[19]

   [19] R v Nguyen (2013) 117 SASR 432, 437; R v Golja [2017] SASCFC 61, [25]-[28].

2. Further, the suspicion must not only be subjectively held but it must also be “reasonable”.  This connotes an objective test which must be satisfied by reference to a consideration of factual matters.  However, it is to be borne in mind that a reasonable suspicion does not necessarily have to be well founded or factually correct; a suspicion based upon information subsequently discovered to be wrong does not negate the existence of the suspicion or its reasonableness.[20]

   [20] R v Colenso [2016] SASCFC 128, [32].

3. By way of brief summary, the chronology of facts occurring on 16 October 2012 that emerged from the voir dire hearing was as follows. Mr Steen, a Safeco employee (‘Steen’), communicated information to Mr Adams, the CEO of Safeco (‘Adams’). Adams then communicated information to AFP agent Warwick (‘Warwick’). Warwick then communicated information to SAPOL, and ultimately to the searching officer, SAPOL detective brevet sergeant Bentley (‘Bentley’) in a briefing conducted on 16 October 2012 at 6:20pm. Bentley later that same day purported to exercise powers pursuant to s 67(4) of the Summary Offences Act in carrying out the impugned search at Safeco.

   The evidence of Australian Federal Police agent Warwick on the voir dire

4. AFP agent Warwick gave the following evidence on the voir dire.  He stated that he was telephoned by Adams at 1:27pm on 16 October 2012 and that Adams gave him information which included that Aram Nasradden had rented Unit 521 at Safeco on 13 October 2012, that he “came in at odd times every night”, that he had sought to lease a unit “close to Mr Ruzehaji’s unit”, and he had “seen things moving or moving stuff between those two units” involving a “white bucket” and “cane bucket” and that Adams told him that “he suspected that [the units] were being used for storing drugs” (to be referred to as ‘the Warwick information’).

5. Warwick stated that he made notes of this conversation, but the notes did not include the final matter that Adams “suspected that [the units] were being used for storing drugs.”  However, later on 18 October 2012, Warwick did make an entry on the AFP case management system of the information he said had been provided to him by Adams, namely that drugs were in either or both of the units.

6. At 4:35pm on 16 October 2012, Warwick telephoned SAPOL detective senior sergeant Daniel Gillan (‘Gillan’) and provided the Warwick information to him.  Shortly thereafter, at 5:30pm, Gillan telephoned Warwick back and stated that the SAPOL organised crime investigation branch would act on the information and that Bentley was to be contacted.

7. At 6:20pm that day, at SAPOL premises, Warwick (and other AFP officers) briefed Bentley on the Warwick information.  Warwick gave evidence on the voir dire that the information he gave Bentley did not include the name or employment of Adams (whose identity he wished to protect).  Warwick gave evidence that he told Bentley that an informant had given him information which included: that Aram Nasradden had rented a unit at Safeco on 13 October; that he “was seeking to rent a unit as close as possible to Mr Ruzehaji”; that attendances at Safeco were “at odd times every night”; that they had “been seen to move stuff between the two units, specifically being a white bucket and a cane bucket”.  

8. Warwick also gave evidence that he advised Bentley that “we suspected there were drugs in the unit”.  In cross-examination, he made clear that Adams had stated to Warwick that he, Adams, suspected there were drugs in the unit but that, wishing to protect Adams, he “would have said [to Bentley] ‘I suspect there were drugs in there’”.

   The evidence of SAPOL detective brevet sergeant Bentley on the voir dire

9. Detective brevet sergeant Bentley gave the following evidence on the voir dire.  She stated that she initially received information relevant to this matter when Gillan, her manager, telephoned her at 4:55pm on 16 October 2012 and advised her of the information he had received from the AFP about the conduct of an investigation known as “Operation Mellum”.  This information included that persons had access to a storage container and had been seen on CCTV moving buckets from one container to another and that it was suspected the buckets might contain cocaine.  Bentley made notes of that conversation with Gillan.

10. Bentley gave evidence that at 5:30pm that day she had a conversation with chief inspector Newitt who advised her of the names of persons suspected to have been involved (‘Nasser Haddine’ and ‘Amir Ruzehaji’) and of information he had received that the use of the container was believed to have involved a non-imported drug.

11. Bentley gave evidence that at 6:20pm that day, she met with four AFP officers, including Warwick, who provided a 40 minute briefing about the information obtained by the AFP and that that information included the name of the person associated with Unit 521 at Safeco (Aram Nasradden), the possibility of multiple kilograms of a substance, and that the unit may have contained “cocaine, cash, green or cannabis and pills or MDMA.”

12. Bentley gave further evidence that “from the information that was provided to me I suspected that there may be drugs in that unit and that it provided enough cause for me to execute my general search warrant.”  Bentley also stated in evidence “I suspected that there were items at that location, at storage Unit 521 that constituted or may have formed evidence of an offence, namely, drugs”.  She said that her suspicion was based on the totality of the information she received in the 40 minute briefing; that she formed the requisite suspicion to use her general search warrant and she made the decision to use it.  It is also to be noted that, immediately after the briefing, Bentley arranged, among other things, for a police drug detection dog (name unknown) to be present at the search of the unit, confirmatory of the fact that her suspicion related to drugs rather than non-specific criminal offending.

    The evidence of Mr Steen and Mr Adams on the voir dire

13. The evidence of Mr Steen on the voir dire was relatively uncontentious; he had initially noticed irregularities in access to Unit 521 and reported the matter to Mr Adams, the CEO of Safeco.  As the Judge observed, “Mr Steen’s evidence really only informed the basis of Adams’ enquiries which in turn led to the telephone call to the police”.

14. Mr Adams fully investigated the matter by viewing and considering the recording systems (described in detail above) and then liaised with police.  His evidence on the voir dire was contentious but we consider that it, and the matters of contention, sufficiently appear in the Judge’s reasons reproduced below.

    The trial Judge’s reasons

15. The Judge delivered extensive reasons which, in full, are as follows: 

    Application is made by both accused to exclude the evidence of the fruits of the SAPOL search of unit 521 on 16 October 2012.  The search is said to be unlawful.

    Five witnesses gave evidence on the voir dire on this topic – Messrs Adams and Steen from Safeco, Federal Agent Simon Warwick, SAPOL officer Daniel Gillan and former SAPOL officer Talei Bentley.  It is appropriate to say something about events before the witnesses, particularly the two civilian witnesses, gave evidence.

    On Friday 1 September 2017 there was on foot a public interest immunity claim by the AFP in respect of, inter alia, the identity of the person who alerted the AFP to the movement of the containers at Safeco on 15 October.  I determined I should not hear that claim.  Another Judge was to hear that claim on Monday 4 September.  On 4 September the claim was abandoned because the identity of the informant being unexpectedly disclosed.  The informant was Mr Adams, the CEO of Safeco.  The solicitors for R had subpoenaed the attendance of the witnesses they sought to question on the voir dire.  Mr Abbott said he proposed to call the witnesses and examine them.  He foreshadowed the order in which he wanted the witnesses to be called – Adams, Steen, Warwick, Gillan and Bentley.

    Mr Abbott called Mr Adams and examined him in chief.  I do not know when it came to Mr Adams attention that the public interest immunity claim seeking to protect his identity had been abandoned.  Understandably I think, he was somewhat guarded in the course of his evidence.

    Adams said that during what I took to be the morning of the 16 October 2012 Mr Steen told him that he was getting after hours calls from silent alarms going off.  Either or both of units 508 or 521 might have been mentioned.  That caused Adams and Steen to consult the logs and CCTV footage.  Adams saw the CCTV footage showing two men moving the containers on 15 October.  He saw on the logs the contemporaneous access to units 508 and 521.  As a result Adams rang the number of an AFP officer who had left a card at Safeco following some other inquiry.  Adams was questioned closely about what alarms had been set off and when.  He was questioned about what he told the police.  He had difficulty remembering aspects of these topics.

    What is clear is that Adams asked the AFP officer whether the police were ‘interested in’ either of the accused.  Adams identified the accused as the tenants of units 508 and 521.  The officer told him that the police were not interested in those names, or at least that that officer was not aware of any interest.

    At about 1:30 pm on 16 October AFP Warwick rang Adams and said that police were interested in R, although they knew nothing about Nasradden.  In fact as part of AFPL operation Mellum, R had been the subject of surveillance for some months.

    Warwick said something to the effect that they would send local police to have a look.  Adams denied that he told the police that he suspected drugs were being moved between units 508 and 521.  He also denied ever looking in unit 508 and telling the police that that unit was now empty.  Those two denials assume some importance in R’s contention that the police were never given information upon which they could form a reasonable suspicion that drugs were to be located in unit 521.

    The next witness was Mr Steen.  He said he had difficulty remembering details of what happened on 16 October.  Mr Powell examined him and Mr Abbott cross-examined.  Mr Steen’s evidence really only informed the basis of Adams enquiries which in turn led to the telephone call to the police.

    Warwick was the next witness.  He rang Adams at about 1:30 pm on 16 October when he learned that R’s name had been mentioned by an informant.  He said Adams told him that he suspected drugs had been moved from unit 508 to 521 the night before.  Warwick made no note in his notebook about Adams saying that (he put it in a later memo) but he was adamant that Adams had said it.  I pause to say that I think it is plain that, despite Adams’s denial and Warwick’s absence of a note, it is highly unlikely that Adams would have telephoned the police simply to tell them that someone was taking access to units after hours, even if the alarm was going off.  I think it is inherently much more likely that Adams rang the police because his observations lead him to suspect that the tenants of units 508 and 521 were storing drugs.  I accept Warwick’s evidence that Adams told him of that suspicion and the grounds for it.  Adams had seen two men carrying large containers between units 508 and 521 the previous night.  He had seen it on the CCTV and he had noted the access to each unit on the logs.  Warwick’s involvement in operation Mellum amplified the suspicion of Adams, at least as it related to R.  Warwick says that during the phone call Adams told him that unit 521 was rented by Nasradden and that when Nasradden rented the unit on 13 October he asked that his unit be situated close to that of his friend.  Warwick was also told that one or both of the units were being accessed at night at odd times.  The log of unit 521 shows access to that unit after hours, although not particularly late, on 9 and 12 October as well as the 8:30 pm access to both units on 15 October.  The alarm only went off once at unit 508 but it went off on unit 521 on 15 October.  The occasion when the alarm went off on unit 508 was at 1:01 pm on 16 October, just before the telephone call between Adams and Warwick at 1:30 pm.  Who took that access remains unexplained but I think the most likely explanation is that it was effected by Adams.  Adams denies that, but Warwick says that when he spoke to Adams he was told that unit 508 was ‘now empty’.  In examination in chief Adams said that if he had told Warwick that he must have learned it from SAPOL officers.  He thought SAPOL officers had attended Safeco during the day.  In cross examination by Mr Powell he was unsure whether SAPOL officers had in fact attended Safeco during the day.

    The defence hypothesis is that AFP officers unlawfully directed SAPOL officers to conduct the search of unit 508 at 1:01 pm.  SAPOL officers denied that.  Certainly they found unit 508 empty when they searched it at 8:40 pm or thereabouts.

    The defence submitted I should disbelieve Warwick’s evidence about what he says Adams told him.  I should conclude that in so far as he has made any record of critical communications from Adams he has reconstructed them.  Where he has not made a note I should not find that that communication took place.  I reject that submission.  While Warwick’s notes do not reflect everything he says he was told by Adams I see no reason to disbelieve him.  An important reason for accepting his evidence is that, despite Adams’s denials in what I describe is his understandably guarded responses in the witness box, I do not think Adams would have telephoned the police in the first place if he had not entertained suspicions that drugs or drug related materials had been moved from unit 508 to 521 on the night of 15 October.

    I find that the information Warwick received from Adams, combined with his own knowledge of R, was sufficient to found a reasonable suspicion that drugs and/or drug related evidence would be found in unit 521 on 16 October.

    Notwithstanding that finding two further questions must be answered –

    Was it lawful for the AFP officers to ‘utilise’ SAPOL officers to conduct the search?

    Did SAPOL officers form a suspicion based on reasonable grounds that illicit material would be found in unit 521?

    Warwick said that he decided not to execute a warrant pursuant to s 3E Crimes Act because he did not want to compromise operation Mellum which involved a number of suspects.  He decided to pass the information he had to SAPOL officers for their consideration.

    The defence submission is that that motive is a misrepresentation.  The real reason for Warwick not seeking issue of s 3E warrant is that he did not have sufficient information to satisfy the requirements for the obtaining of such a warrant.  That hypothesis involves the propositions that while Warwick was willing to misrepresent and exaggerate the reasons for his suspicions to this court he was not willing to exaggerate and misrepresent them to the officer who had authority to issue a s 3E warrant.

    I accept Warwick’s evidence about his reasons for preferring to avoid if he could, seeking s 3E warrant.

    There was a further challenge to the propriety of Warwick referring the matter to SAPOL.  It is suggested that Warwick directed SAPOL to conduct the search.  Warwick accepts that he said to Adams that he ‘was sending’ SAPOL officers to ‘have a look at’ the units.

    Both Gillan, to whom Warwick first spoke, and Bentley denied they were directed in any way to conduct the search. While Warwick and three other AFP officers attended SAPOL premises at about 4:20 pm on 16 October to brief Bentley and other SAPOL officers, both Warwick and Bentley deny any improper coercion. I accept their evidence.

    The final question to be answered is whether Bentley had sufficient information upon which she could form a suspicion on reasonable grounds that drugs might be found in unit 521.

    The defence undertook a close analysis of Warwick’s and Bentley’s notes, and those of the intermediary Gillan, in support of the contention that I should find that Bentley did not have reasonable grounds for forming the requisite suspicion.

    A further basis for that contention was that it was suggested that Bentley’s contacting surveillance resource personnel within SAPOL before the briefing suggested that she never had the requisite suspicion about the likely presence of drugs.  Rather she was merely proposing to install a surveillance device in unit 521.  I accept her evidence on that topic.  She said that she was not sure whether she would need any assistance from the surveillance personnel but she wanted to check their availability before five o’clock because after that she would not be able to contact them.

    Notwithstanding that the notes of Bentley do not set out all the information I have found that Warwick possessed, and notwithstanding that Bentley said that she relied in the witness box entirely on her notes to recollect what she was told, I find that Warwick told her all he knew about the accused.  I see no reason why he would not have done so.  It was in his interests to provide Bentley with as much information as he could, both to enable her to decide whether she would use her general search warrant to conduct the search and to actually conduct the search itself.

    I find that Bentley was told the following information:

    That the two named accused were suspected by an informant, and by Warwick, to have moved drugs and/or drug related evidence from unit 508 to 521 the night before;

    That R had been under AFP surveillance for suspected drug trading for some time;

    That Nasradden had two days before sought to hire a unit close to that of his friend;

    That unit 521 was secured by a combination lock and that 508 was now empty.

    That information in my mind view was sufficient to engender, and did engender, in Bentley a reasonable suspicion that drugs and/or drug evidence might be found in unit 521. I find that Bentley’s execution of her general search warrant at Safeco on 16 October 2016 was lawful.  The search was lawful and there is no discretionary reason to exclude the evidence uncovered.  I bear in mind the requirements of the suspicion that must be entertained before a general search warrant can be executed (see R v Nguyen[21]).

    [21] (2013) 117 SASR 432, [21]-[22].

    The appellant Ruzehaji’s written submissions

16. Senior counsel submits in her written submissions as follows:

    20.     It is submitted his Honour erred in this conclusion on the bases that:

    20.1. Ms Bentley did not in fact suspect that there would be anything that may have afforded evidence as to the commission of an offence in unit 521; and

    20.2. there was no reasonable cause for Ms Bentley to form that suspicion. (sic)[22]

    [22] It is assumed that the words “that suspicion” should be read as meaning “any such suspicion”.

17. The written submission then attempts to make out the above propositions by undertaking an analysis of the evidence given on the voir dire and asserting that there are various deficiencies concerning, and inconsistencies as between, several of the witnesses.  (Senior counsel handed up a chart during the hearing entitled “Appellants Chart of Inconsistencies in Search Evidence” and we have carefully considered the contents of that chart.)

18. The written submissions then refer to a number of authorities concerning the meaning and requirements of the term “reasonable suspicion” in s 67(4) of the Summary Offences Act and the strictness of the approach to be taken to such a requirement in a search warrant. It is then submitted (as to actual suspicion):

    26.It is submitted that Ms Bentley’s evidence did not rise as high as establishing a suspicion as described by Kourakis CJ in Nguyen (2013).[23]  It will be recalled that the evidence of Ms Bentley on the topic of drugs rose no higher than entries in her notes preceded by question marks, described by Ms Bentley as “possible”, “a point of conversation” and “potential”.

    [23] 117 SASR 432.

1. As to paragraph [47] of the submission, we consider that on any fair reading of the whole of the summing up, the Judge did adequately apply the law to the facts insofar as was necessary on the facts and circumstances of the case.

2. As to paragraph [48] of the submission, this does indeed put what had preceded it into “other words”.  No further comment is necessary.

   GROUND 5 OF APPEAL:  SEPARATE CONSIDERATION OF THE CASE AGAINST EACH APPELLANT

3. Ground 5 of appeal appears as follows:

   5.The Learned Trial Judge erred in law by failing to adequately direct the jury on the separate consideration of the cases against each of the two accused:

   5.1.   The Learned Trial Judge failed to apply the law to the facts by identifying the separate paths to guilt for the Appellant acting alone and by way of joint commission.

   5.2.   The Learned Trial Judge failed to direct the jury in respect of the use to which the evidence could be put in respect of the separate paths to guilty [sic].

   Ground 5.1: Identifying separate paths to guilt

4. The Judge directed as to the alternative nature of the prosecution case thus:

   The prosecution case is that each of the accused is guilty of the three offences either acting alone or acting jointly with each other.  The Crown case is that both accused are depicted in the CCTV footage either together or separately, and in that way, they were either both separately committing the offences or they were acting jointly.

5. The Judge first directed the jury as to the case against the respective appellants based on their respective individual acts.  In that context, his Honour made plain that the position of each appellant must be considered separately and directed the jury as to the respective bodies of evidence admissible against the respective appellants thus:

   Before I direct you on the ingredients of the three charges I make the following introductory remarks.  One, I will deliberately refer to the ingredients as if they refer to a single accused.  I do that partly out of convenience but more importantly to emphasise the fact that you must consider the position of each accused separately. 

   …

   In respect of Mr Ruzehaji, the prosecution relies on the following pieces of circumstantial evidence.  First, the accused rented unit 508 on 5 July 2010.

   Second, the correlation between the car registration detail on the unit lease agreement with the agreed fact about the car bearing that number being registered to the accused.

   Next, the activity log relating to the units 508 and 521.  Next, the CCTV footage.  Next, the green singlet. Next, the tattoo. Next, the lock.  Next, the DNA and I will return to the lock and the DNA in a moment.  Next, the connections between the two accused and finally, the telephone calls between the two accused.

   In respect of Mr Nasradden the prosecution relies on the following pieces of circumstantial evidence.

   1.     The accused renting unit 521 on 13 October 2013.

   2.The Wilby evidence about the accused wanting his unit close to his friend's unit and initially not wanting a PIN card.

   3.     The activity log.

   4.     The CCTV footage.

   5.     The connections between the two accused.

   6.     The drugs being found in his unit.   (Emphasis added)

6. The Judge later directed the jury as to what amounts in law to “joint commission”, the alternative way in which the prosecution put its case (at pages 7 to 8 of the summing up in a passage reproduced at paragraph [101] above).

7. In our view, the Judge’s directions did not conflate the two alternative bases of criminal responsibility.  The prosecution alleged that the two men were acting together when moving the items from Unit 508 to Unit 521 on the evening of 15 October 2012.  In doing so, on the prosecution case, the appellants either had joint possession of all substances; or one of the appellants had sole possession, but the drugs were being moved pursuant to a joint agreement between them.

   Ground 5.2:  directing as to the use of evidence

8. Bearing in mind the narrow nature of the difference between the two alternative cases, it is difficult to divine from the words of this ground what it is supposed to mean.  As it happens, the written submission purporting to be made under cover of this ground asserts a failure to direct the jury as to what evidence was admissible against the two respective appellants.  Thus the appellant submits:

   Evidence admissible against each accused

   58.The other failure in the directions given relating to joint commission was an identification of what evidence was admissible against which accused, and in particular the circumstances in which the co-conspirators rule could be deployed to make evidence of out of court statements by Mr Nasradden admissible against Mr Ruzehaji.

   59.This issue arose particularly in respect of the evidence given by Tonie Wilby, an employee of Safeco, as to the conversation she had with Mr Nasradden at the time he leased unit 521.  Ms Wilby gave evidence that Mr Nasradden:

   …said he just wanted a storage unit that was near to his friend. He was able to give me his friend’s storage unit number but he couldn’t tell me what his friend’s name was. He said he didn’t know.

   60.In summing up (p 9, AB154) the trial judge directed that evidence was admissible against Mr Nasradden.  However, there was never a specific direction given that it was not admissible against Mr Ruzehaji. It is submitted that this was a prima facie error of law.

9. Putting aside the apparent non-correspondence between the stated ground of appeal and the submission said to be in support of it, it is noted above at paragraph [115] that the Judge specifically directed the jury as to the separate bodies of evidence concerning the respective appellants and we consider that those directions were adequate in all of the circumstances.

10. We add that there was no exception or request for re-direction made on behalf of Ruzehaji.  That is of some significance in circumstances where the Judge would probably have considered that he had appropriately directed as to the two separate bodies of evidence and, if requested, could easily have given a further direction.

11. If it be considered that, contrary to our view, there here arises an error of law or miscarriage of justice, we consider that no substantial miscarriage of justice actually occurred and we would apply the proviso and dismiss the appeal.

    NASRADDEN’S APPEAL:  WERE THE VERDICTS UNREASONABLE?

12. The case of Nasradden stands differently to that of Ruzehaji.  In effect, it was submitted that the prosecution failed to disprove a reasonable hypothesis consistent with Nasradden’s innocence of the charges against him.  This was that Ruzehaji was the leading light in the operation; that he may have used several people to perform, or help perform, various functions; and that while Nasradden had attended at Safeco on 13 October 2012 to rent a unit to assist Ruzehaji, it did not follow that it was Nasradden who appeared in the CCTV footage taken on 15 October 2012.

13. In considering that hypothesis, two things must be emphasised.  First, and most importantly, the course of the trial was such (and the trial prosecutor and the Judge expressly made it clear) that the jury could only convict Nasradden if it were proven that he was the person depicted in the CCTV footage of 15 October 2012.  Of course, it was not necessary that the CCTV footage of 15 October 2012 taken by itself proved that Nasradden was a person there depicted; it was sufficient that the footage, together with all of the other evidence admissible against Nasradden, proved that.  However, the clear position at trial, and not sought to be withdrawn on the hearing of the appeal,[26] was that if all of the evidence admissible against Nasradden could not prove that he was one of the persons depicted in the CCTV footage of 15 October 2012, then he had to be acquitted; and this was so even if it were thought by the jury to be proven that he had been unlawfully involved in some different way with the subject matter of the charges.

    [26] There is no suggestion that counsel for the respondent should have attempted to do so; much less that the Court would have permitted him to do so.

14. Secondly, the trial prosecutor had made it clear at trial that the CCTV footage taken on 12 October 2012 depicted “an unknown male” and had not suggested that this “unknown male” was Nasradden.  On the appeal hearing, Mr Crowley[27] made it clear that the prosecution accepts that this “unknown male” was not Nasradden.

    [27] Mr Crowley did not appear at trial.  However, he appeared on the appeal with Mr Powell who had been the trial prosecutor.

    An overview of the CCTV footage

15. As noted above, we have carefully reviewed the Safeco CCTV footage and have concluded upon the whole of the evidence that the man alleged by the prosecution to be Ruzehaji in the CCTV footage from 12, 15 and 16 October 2012 was in fact the appellant Ruzehaji.  That being so, in considering Nasradden’s appeal, we refer to the man alleged by the prosecution to be Ruzehaji in the CCTV footage simply as “Ruzehaji”.

16. We will refer for the sake of clarity to the CCTV footage of the various dates in the following ways.  The CCTV footage from 12 October 2012 depicts Ruzehaji and another man to whom the prosecution refer as the “unknown man”; we will refer to that man as the “unknown man of 12 October 2012”.  The CCTV footage from 15 October 2012 depicts Ruzehaji and another man, to whom the prosecution refer as the “second man”; we will refer to that man as the “second man of 15 October 2012”.

17. Of course, on the prosecution case, the “second man of 15 October 2012” is Nasradden but on the defence case the “second man of 15 October 2012” is not Nasradden, and in fact is likely to be the same man as “the unknown man of 12 October 2012”.

18. We foreshadow that we find that it is reasonably possible that the “second man of 15 October 2012” was not the appellant Nasradden.  Although not necessary to our decision on the appeal, we also find that it is likely that the “second man of 15 October 2012” was in fact the same man as the “unknown man of 12 October 2012”.  Our reasons follow.

    The CCTV footage of 12 October 2012

19. On 12 October 2012, at approximately 5:20pm, the Safeco exterior CCTV footage shows a silver Toyota sedan arriving and parking, out of which Ruzehaji and the “unknown man of 12 October 2012” alight.  They can be seen approaching the door which leads to the storage units.  The “unknown man of 12 October 2012” appears tall, lean, and broad shouldered, with short hair, shaven straight across the front.  He is wearing a white shirt, rolled up to his elbows with several buttons undone and firm fitted jeans.  His shoes appear to be loafers.  At the door, he can be seen to take off his sunglasses and hook them on to the top of his shirt.  On his left wrist a large silver bracelet or watch can be seen.

20. The CCTV footage from the storage area shows the two men going up the stairs, into the room, and towards the corridor of Unit 521.  The men pause briefly at the entry to this corridor and Ruzehaji points to something down the corridor.  The men then walk towards the camera and into the corridor of Unit 508, and out of sight.

21. The “unknown man of 12 October 2012” walks with his right hand in his back pocket.

22. Approximately two minutes later, the two men reappear in the CCTV footage, and they walk directly through the camera’s view, down the stairs.  The “unknown man of 12 October 2012” is now carrying a bag hooked over his shoulder; he appears to be walking with his left hand in his front pocket.  The exterior CCTV footage then shows the two men leaving in the same car in which they had arrived.

    The CCTV footage of 13 October 2012

23. On 13 October 2012, Nasradden attended at Safeco to rent a storage unit.  The CCTV footage from the front office at Safeco shows him at approximately 10:33am, at which time he sits on the couch in the front office for approximately four minutes, while Ms Wilby served other customers.

24. Nasradden is wearing a wide-necked dark t-shirt, firm fitting jeans and black flip flop shoes, with his sunglasses on top of his head.  His hair can be observed to be mid-length, combed down towards his face and onto his forehead. 

25. Once Ms Wilby has finished with the other customers, Nasradden stands up and waits while she locks the front door and collects a clipboard from behind her desk.  The pair then exit from the view of this CCTV camera down a corridor.

26. While walking, Nasradden puts his hands in his pockets briefly, before pulling his t-shirt down over his jeans and crossing his arms.

27. The pair then appear in the CCTV footage in the storage area about 90 seconds later.  On this footage, Mr Nasradden’s physique can be clearly seen.  He has shoulders which clearly curve downwards from the base of his neck.  He does not necessarily carry excessive weight around his stomach, but his waist is not narrower than the remainder of his torso.

28. Ms Wilby and Nasradden then exit from view into the corridor of Unit 508.  Approximately 20 seconds later, they reappear from this corridor, and exit again down the corridor of Unit 521.  Approximately 35 seconds later, they re‑appear and walk towards the camera, before exiting the storage area via the corridor closest to the camera.  They then return to the front office and Nasradden approaches the front desk to begin filling out the rental agreement.

29. As Nasradden approaches the desk, he repeats the motion of pulling his t‑shirt down over the top of his jeans.  He then completes the paperwork, standing at the front desk, facing away – and slightly to the right – from the camera.  The profile of the rear of his head and neck is quite straight but he has a slightly hunched back.  He remains in this position for over ten minutes, before leaving the front office.

    The CCTV footage of 15 October 2012

30. On 15 October 2012, at approximately 7:28pm, Ruzehaji and the “second man of 15 October 2012” arrive at Safeco.  The men are first seen on the car park CCTV footage where they alight from a silver coloured car and enter the building.  After the “second man of 15 October 2012” exits from the car’s passenger side, he walks the long way around the vehicle and has a look at its boot, with his hands in his front pockets.

31. The two men are then seen on the storage area CCTV footage walking up the stairs into the storage area and into the corridor of Unit 521.

32. The “second man of 15 October 2012” appears taller, more toned, and broader shouldered than Ruzehaji.  He still has his hands in his front pockets at this time.  He wears a dark t-shirt with a bright horizontal stripe at the waist, dark pants and white shoes.  Like the “unknown man of 12 October 2012”, he has a large silver or metallic watch or bracelet on his left wrist.

33. Less than one minute later, the two men reappear from that corridor and walk towards the camera, exiting from view into the corridor of Unit 508.  One can clearly see here that the hair of “the second man of 15 October 2012” is short and straight across the front.

34. A little over one minute later, the “second man of 15 October 2012” reappears and is carrying a white bucket, and returns to the corridor where Unit 521 is located.  He initially carries this bucket in his left hand, however subsequently shifts it to his right hand.  Shortly thereafter, Ruzehaji also reappears, and carries two large square dark coloured baskets or tubs into the corridor of Unit 521.

35. Less than ten seconds later, the “second man of 15 October 2012” exits this corridor, walks nearly to the corridor of Unit 508, before returning to the corridor of Unit 521, apparently due to a change of mind.  In this footage, it can again be clearly seen that the “second man of 15 October 2012” has short hair, cut straight across the forehead.  He again walks with his hands in his pockets.

36. Soon thereafter, the two men exit this corridor and walk down the stairs towards the car park.  “The second man of 15 October 2012” still has his hands remaining in his pockets.  The men are again seen on the car park CCTV footage, getting into the vehicle and exiting the car park.  Again, in the car park CCTV footage, “the second man of 15 October 2012” has his hands in his pockets.

    The CCTV footage of 23 October 2012

37. At approximately 2:17pm on 23 October 2012, Nasradden attended at the Safeco storage facility (in the company of his solicitor, Mr Lister).

38. Nasradden can again be seen to have his hair combed down over his forehead with his sunglasses on his head.  His shoulders can again be observed to visibly curve down from the base of his neck.  He is again wearing a wide necked t-shirt, jeans, and ‘flip flop’ shoes. 

39. The two men enter from the hallway that connects the storage area to the front office, exit into the corridor of Unit 508, walk from this corridor into the corridor of Unit 521, before exiting this corridor and walking back out through the doorway closest to the camera, towards the front office.  Nasradden walks with his arms squarely by his sides.  His gait can be distinguished from that of both “the unknown man of 12 October 2012” and the “the second man of 15 October 2012” who (when their hands are not in their pockets) can both be seen to hold their hands in front of themselves or swing them by their sides as they walk.

    Objective features and mannerisms common to the “unknown man of 12 October 2012” and the “second man of 15 October 2012” 

40. As appears from the discussion above, there are a number of objective features and mannerisms common to the “unknown man of 12 October 2012” and the “second man of 15 October 2012” (which in turn are dissimilar to those actually possessed by Nasradden as at mid October 2012).

    General physique

41. As noted above, the shape of the shoulders of both the “unknown man of 12 October 2012” and the “second man of 15 October 2012” were quite similar, both being square and broad.  By contrast, Nasradden’s shoulders appear to be quite different; they are rounded and curve clearly downwards from the base of the neck.

    Height

42. Clear and unchallenged evidence on behalf of Nasradden was received at trial which established that Ruzehaji and Nasradden are virtually the same height; Ruzihaji is one half a centimetre taller than Nasradden.  Counsel for Nasradden relies upon the fact that the CCTV footage appears to show that both the “unknown man of 12 October 2012” and the “second man of 15 October 2012” were significantly taller than Ruzehaji.  However, the prosecution submitted that the CCTV camera had a fish-eye lens which results in some obvious distortions in the CCTV recording and that any apparent height difference between the two men was illusory rather than real.

43. There is no doubt that there is some distortion, but as counsel for Nasradden submits, there is no occasion where the height of Ruzehaji appears greater than the “second man of 15 October 2012”and, if the apparent height difference were a mere artefact, it should operate in both directions given that the true height of Ruzehaji and Nasradden are almost exactly the same. 

44. This submission does seem borne out if one takes the time of 7:34pm and 44 seconds on the CCTV footage for 15 October 2012.  Mr Ruzehaji can there be seen standing exactly in the doorway to the corridor which leads to Unit 521.  One second later, the “second man of 15 October 2012” follows Mr Ruzehaji through this exact point in the doorway.  A comparison of the two men standing in the same position – and thus liable to the same distortion by the camera lens – clearly demonstrates that the “second man of 15 October 2012” is indeed taller than Mr Ruzehaji; a fact which appears to preclude this male from being Nasradden, given that Nasradden is actually half a centimeter shorter than Ruzehaji.

    Large bracelet or watch on the left wrist

45. Both the “unknown man of 12 October 2012” and the “second man of 15 October 2012” can be seen to have a large metallic bracelet or watch on the left wrist.  By contrast, Nasradden was wearing nothing on his wrist on both 13 October 2012 and 23 October 2012.

    Appearance of the hair

1. Both the “unknown man of 12 October 2012” and the “second man of 15 October 2012” can be seen to have short hair, shaven straight across the front.  By contrast, Nasradden’s hairstyle, as can be seen in the CCTV footage from both 13 October 2012 and 23 October 2012, is quite noticeably different; it is mid-length, combed down towards his face and onto his forehead.

   Walking with hands in the front trouser pockets

2. While most males do put their hands in their pockets sometimes, both the “unknown man of 12 October 2012” and the “second man of 15 October 2012” display a strong tendency to walk with hands in trouser pockets.  By contrast, Nasradden makes brief contact between his hands and his pockets on only one occasion throughout the entire CCTV footage of him on 13 and 23 October 2012.

   Footwear

3. Both the “unknown man of 12 October 2012” and the “second man of 15 October 2012” wore enclosed shoes.  However, Nasradden on both occasions on 13 October and 23 October 2012 wore “flip flop” style shoes.

   Further objective features or mannerisms displayed by Nasradden and absent from the “unknown man of 12 October 2012” and the “second man of 15 October 2012”

4. In addition to the common features of the “unknown man of 12 October 2012” and the “second man of 15 October 2012” (which are in turn different from Nasradden) as referred to above, there are a number of positive objective features or mannerisms displayed by Nasradden which in turn are not seen in the CCTV footage of the “unknown man of 12 October 2012” or the “second man of 15 October 2012”.

   Nasradden walking, standing and sitting with his arms crossed

5. Nasradden can be seen in the CCTV footage of him on 13 and 23 October 2012 walking, standing and sitting with his arms crossed on multiple occasions.  In plain contrast, neither the “unknown man of 12 October 2012” nor “the second man of 15 October 2012” cross their arms on any occasion.

   Nasradden adjusting his t-shirt

6. Nasradden’s mannerisms in the CCTV footage of him on 13 and 23 October 2012 include adjusting his t-shirt by pulling it down over the top of his jeans on a number of occasions.  It is to be noted that the “second man of 15 October 2012” also wore a t-shirt but he at no stage adjusted it in this way.[28] 

   [28] The “unknown man of 12 October 2012” was wearing a button up shirt and therefore cannot be compared for this purpose.

   The position in which Nasradden carries sunglasses

7. On the CCTV footage of both 13 and 23 October 2012, Nasradden wears his sunglasses on the top of his head when inside.  By contrast, the “unknown man of 12 October 2012” hooks his sunglasses onto the top of his shirt.[29]

   [29] The “second man of 15 October 2012” did not have sunglasses (since the events took place at night) and therefore cannot be compared for this purpose.

   Conclusion

8. We conclude that the evidence is insufficient to negate the hypothesis relied upon by the appellant Nasradden as referred to above at paragraph [122]. This conclusion does not depend on witness credibility findings or disputed factual findings as to which the jury had the advantage of seeing the witnesses. The conclusion is pre-eminently a matter of correct analysis as to what inference may be safely drawn from the proven facts as distinct from any dispute as to the existence of those facts.[30]

   [30] See the decision of the High Court in Warren v Coombes (1979) 142 CLR 531.

9. In the final analysis, the prosecution case here largely depended on the degree of association between Nasradden and Ruzehaji.  We consider that the position of the appellant Nasradden is rather analogous to that of the appellant Starke in R v Bilick and Starke.[31]  King CJ there concluded:[32]

   The gist of the case against Starke was the closeness of his association with Bilick, who was proved to be trading in heroin, the fact that he attempted to warn Bilick of the presence of police, and the fact that a woman injected herself by means of a syringe in the arm in his presence.  The last-mentioned fact really has no probative significance as regards trading as there was no evidence to suggest that Starke had delivered drugs to the house.  The attempt to warn must excite suspicion, but it does little, of itself, to establish complicity in drug trading as distinct from knowledge that something illegal may have been occurring.  The association with Bilick and the women must lay Starke open to suspicion, but there was no evidence of association on occasions of proved heroin trading.  The evidence did not link Starke to the drugs in which Bilick was trading or indeed, apart from the syringe incident, to any drugs.  The evidence was consistent with innocent association, with or without some knowledge or suspicion of Bilick's real business in Adelaide.  I think it would be quite unsafe to draw from the evidence the conclusion that Starke was a participant in the heroin trading operation.  I do not think that it was open to the jury to reach that conclusion beyond reasonable doubt.  On that ground I consider that Starke’s appeal should be allowed and the verdict against him should be set aside.  Starke having stood his trial, and the prosecution having failed to prove the charge against him, there should not be a new trial.

   [31] (1984) 36 SASR 321.

   [32] Ibid, 338.

10. We are of the same view here.  The evidence adduced was insufficient to prove the charges against Nasradden beyond reasonable doubt and accordingly he must now be acquitted.

    Orders on the appeals

11. It was for the above reasons that we dismissed the appeal by Ruzehaji and allowed the appeal by Nasradden and made the following orders:

    1The appeal by Ruzehaji is dismissed.

    2The appeal by Nasradden is allowed.  The verdicts of guilty on each of the three counts are set aside and verdicts and judgments of acquittal on each of the three counts are substituted.

    ANNEXURE A

    Part of exhibit 1D7 – handwritten exhibit list

12. Relevant entry at line 8, being police exhibit number SSWG03.3: “5 x red chequered t-towels”.