R v UD (No 5)

[2020] ACTSC 244

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v UD (No 5)
Citation:	[2020] ACTSC 244
Hearing Dates:	16 September 2020
Decision Date:	16 September 2020
Before:	Elkaim J
Decision:	See [18]
Catchwords:	CRIMINAL LAW – APPLICATION IN PROCEEDING – No Case Submission – Circumstantial case – whether the evidence is
capable of producing a conclusion of guilt beyond reasonable
doubt in a reasonable mind – whether the evidence is capable of
causing a reasonable mind to exclude any competing hypotheses as unreasonable
Legislation Cited:	Crimes Act 1900 (ACT) s 287
Cases Cited:	Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323
Texts Cited:	Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, 2002) Mirko Bagaric, Ross on Crime (Thomson Lawbook Co, 8th ed, 2018)
Parties:	The Queen (Crown) UD (Accused)
Representation:	Counsel
R Christensen (Crown)
K Archer (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused)
File Numbers:	SCC 282 of 2019
ELKAIM J:

1.       The trial in this matter commenced yesterday. The Crown closed its case before lunch today. The accused indicated that a defence case would not be advanced. Instead he made a submission that the matter should go no further because the Crown had not established that there was a case for him to answer.

2.       Although I initially understood that the application did not include Count 1 on the indictment (joint commission drive stolen motor vehicle), the accused later made it clear that his application extended to all four counts.

3.       The parties agreed on the principles to be applied. They were stated by King CJ in the Court of Criminal Appeal of South Australia in Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, at page 327, as follows:

If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

(Original emphasis)

4.       In Ross on Crime (8th ed), “Ten hints on a no case submission” are provided. Hint ‘6’, consistent with the above South Australian decision, states “Does any circumstantial

evidence exclude all hypotheses consistent with innocence?”.

5.       The case put forward by the Crown is a circumstantial case. In discussion during the trial the Crown suggested, correctly, that the directions to the jury should include, with relevant amendments, the direction set out in the New South Wales Criminal Trial Courts

Bench Book at [2-520]. This direction is referred to as the “strands in a cable case”.

6.       I asked the Crown what the relevant strands were in this case. I was told that they were as follows:

(a) The presence of the accused’s DNA in a red Subaru Brumby vehicle which had

been stolen sometime after 8pm on 10 December 2017. I note here that the robbery with which this case is concerned occurred at about 2:45am on 11 December 2017.

(b) The presence of a white Toyota Hilux utility, belonging to TF (the accused’s

half-brother), at a car park at Point Hut Crossing (as shown in Exhibit C) seen by police at this location at about 2:45am on 11 December 2017 and the

corresponding ‘driving by’ on Point Hut Road at the same time of a vehicle

matching the description of the stolen Subaru.

(c)	The access to the Toyota that was available to the accused.
(d)	The consistency of the various addresses involved, in particular the distances and times between them, with the alleged criminal events.

7.       The Crown submitted that each of the above strands was based on evidence the jury could accept, and once accepted, the jury could reasonably conclude beyond reasonable doubt that the accused was guilty of each offence. The accused did not dispute this proposition but rather focused on the next step that the jury would be required to take, namely that it had to exclude any other reasonable conclusion arising from the facts which is inconsistent with the guilt of the accused.

8.       I think it important to look at each of the above strands in turn. It was not disputed that

the accused’s DNA was present on a part of the Subaru associated with its driver’s

controls (in particular the steering wheel, gearstick and handbrake).

9.       Evidence about the DNA was given by Mr Joshua Schwartz, a forensic biologist employed by the Australian Federal Police. His evidence included the following:

(a)	It could not be stated when the DNA was deposited.
(b)	It could not be ascertained for how long the DNA had been present.
(c)	DNA can be deposited by way of a primary transfer, a secondary transfer or a tertiary transfer. These three levels indicate different stages in the path of a DNA

deposit to the location at which it is found. A primary transfer involves the ‘owner’

of the DNA directly putting his or her DNA on to the relevant object. The obvious example is touching the object. A secondary transfer involves the owner touching someone or something else which later comes into contact with the relevant object. A tertiary transfer is yet one more step removed in the respective transfers.

10.     The Crown submitted that the evidence of Mr Schwartz distinguished between a primary transfer and a secondary or tertiary transfer. The Crown said that his evidence suggested there was more of a chance that the transfer in this case was of a primary nature. I disagree. I do not think that Mr Schwartz made this distinction. I do not think he attributed any greater chance to any one of the three types of transfer. In my view to reach a conclusion that the transfer was of a particular type could only occur by way of an uninformed guess.

11.     The presence of the Toyota at the car park is suspicious, in particular when seen against the further evidence that this vehicle was absent when the police returned to the car park and the later location of the Subaru about 150m from the car park. The possibility of a connection between the Subaru and the Toyota must be open.

12.     Accepting that TF owned the Toyota at the relevant time and that the accused visited him from time to time, and may have driven the Toyota at some time, is in my view a very long way from an available inference that the accused drove, or used, the Toyota on the night of the robbery. I accept that it is a possibility but I do not accept that it is the only reasonable, or justifiable, inference that is available. Other persons, including a vague

(but not disproved) person called “Jeffro”, used the vehicle.

13.     The consistency of the locations and the assorted timings between them from the stealing of the Subaru and the occurrence of the robbery is of almost no weight. It is

correct that these locations broadly ‘fit’ with the events, but so too do just about any other

locations in the southern suburbs of Canberra.

14.     I do not think the assorted strands relied upon by the Crown, of themselves, are reliable indicators of the guilt of the accused, either individually or taken together. More importantly, even if accepted to a degree where the jury might conclude that they were capable of indicating the guilt of the accused, they certainly do not exclude a reasonable conclusion that is inconsistent with the guilt of the accused.

1. It must be a reasonable possibility that the accused’s DNA arrived in the Subaru other

   than by a primary transfer. If the Subaru was driven by a person other than the accused the whole of the Crown case becomes so tenuous that, being part of a circumstantial case, it could not go to the jury.

16.     It must also be a reasonable possibility that a person other than the accused used the Toyota on the night of the robbery. Again, the circumstantial case advanced by the

Crown, could not satisfy the jury of the accused’s guilt.

17.     It is perhaps arguable that Count 1 can be separated from the other counts on the basis that it relies on direct evidence, namely the presence of the DNA in the Subaru. However,

having regard to the evidence of Mr Schwartz, I agree with the accused’s submission

that this evidence alone is not capable of proving the offence. Ultimately Count 1 also
relies on circumstantial evidence and fails in the same way as the other counts.

18. I therefore intend to direct the acquittal of the accused pursuant to s 287 of the Crimes Act 1900 (ACT).

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 7 December 2020