R v Weetra - [2004] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEETRA
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
3 November 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE
Appellant convicted of aggravated serious criminal trespass in a place of residence - Group of men entered victims' home, using force - Victims assaulted and jewellery, money and other items of value stolen - Circumstantial case - Victims could not identify assailants but said they had dark skin - Appellant Aboriginal - Appellant lived in same street as victims - Some stolen jewellery found outside appellant's house - Traces of DNA belonging to male victim found on appellant's jeans - Appellant's case was that his jeans had been contaminated by transfer of blood from victim's house - Police officers who attended appellant's house had previously been at victim's house - Whether jury must have entertained a reasonable doubt - Whether trial judge erred in failing to emphasise possibility of contamination in summing up - Verdict not unsafe - No miscarriage of justice resulted from judge's directions - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137, s 170, s 352, referred to.
R v Shueard (1972) 4 SASR 36; Domican v The Queen (1992) 173 CLR 555; R v Carbone (No 2) (1976) 14 SASR 280; R v Perks (1986) 43 SASR 112; R v Aziz [1982] 2 NSWLR 322, applied.
M v The Queen (1994) 181 CLR 487, considered.

R v WEETRA
[2004] SASC 337
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by White J. There is nothing that I wish to add to his reasons.
BESANKO J: In my opinion this appeal should be dismissed. I agree with the reasons for judgment of White J and there is nothing I wish to add.
WHITE J
Introduction
This is an appeal against conviction, by leave of a Judge of this Court, pursuant to s 352(1)(a)(i) of the Criminal Law Consolidation Act 1935 (SA).
Following a trial by jury in the District Court, the appellant was found guilty, by a majority verdict, of aggravated serious criminal trespass in a place of residence, in contravention of s 170(2)(b) of the Criminal Law Consolidation Act, and robbery with violence, in contravention of s 137 of that Act. The Crown case was that the accused, using force, entered the victims’ premises in company with three or four other men. Once inside, they assaulted the victims violently whilst stealing jewellery, money, ornaments, a wallet and a mobile telephone.
The appellant argues two grounds of appeal:
1The verdicts of guilty returned by the jury are unreasonable and/or cannot be supported having regard to the evidence.
2The learned trial Judge erred in that he did not properly or adequately direct the jury as to the danger of exhibits having been contaminated with DNA from the crime scene as a result of police activity prior to or during the collection of those exhibits.
The Robbery
Most of the evidence in the trial relating to the crimes against the two victims was undisputed. The evidence of the victims established that, on the morning of 7 December 2002, they were together at number 65 Ivey Street, Ottoway. At about 5.00 am they were woken by noises coming from outside their bedroom. The male victim went to the back door and turned on the outside lights. He saw a group of about five people, who rushed towards him. As the group forced the back door open, the male victim ran back to the bedroom, screaming. Whilst his wife tried to hold the bedroom door closed, the male victim attempted to telephone the police, and to smash the window at the front of the house so as to climb out. Using force, the group knocked the bedroom door off its hinges and entered the bedroom. Members of the group then assaulted each of the two victims, at the same time using threatening language and demanding to know the location of valuable items.
The female victim was hit in the head and kicked in the ribs by at least one of the members of the group. One of the intruders held a knife to her throat and demanded, “Where is the rifle? Where is the money? Where is the gold?” That person then removed the female victim’s bracelet, earrings and necklace. One of the men, according to the female victim, asked whether she was ready for sex, and began to unzip his pants,but did not continue. She suffered two broken ribs, facial lacerations and bruising, damage to her teeth and scratching and bruising to various parts of her body.
The male victim was also assaulted violently, including with the use of a knife. In addition to concussion, he suffered a fractured left cheekbone requiring the insertion of twelve screws and five plates, a broken finger, a large cut to his right knee and multiple other cuts and bruises.
The robbery and the assaults ceased when the group left the house, apparently because they realised the arrival of the police was imminent.
The injuries suffered by the victims resulted in significant blood loss. The male victim’s blood, in particular, was widespread in the bedroom and to lesser extent, in the bathroom and porch. In some places it was spattered and in other places smeared on the surface of floor coverings, furniture and fittings.
The Case Implicating the Appellant
The victims were unable to make an identification of any of the intruders. They each gave partial descriptions of the men. The male victim described one of the intruders as a “tall guy”, wearing a woollen hat or beanie. He also described seeing “one very young hand, a black young hand” reaching inside the bedroom door before it was forced open. The female victim described the person who approached her as “not tall, medium size, black, skinny”. By black, she meant that the person had dark skin. He was wearing a dark shirt, black trousers and a black hat. According to the female victim, one of the intruders who assaulted the male victim was tall, with “something on his head” and a dark green, short-sleeved t-shirt; the others were all medium-sized. She said that all of the intruders were black and all seemed to be males. As at 7 December 2002, the appellant had a full-face beard. Neither of the victims reported that one of the intruders had a beard.
The appellant, who is aboriginal, lived at number 43 Ivey Street, Ottoway, ie, in the same street in which the victims lived. He gave evidence at the trial.
The prosecution case at trial was entirely circumstantial. There were four main pieces of circumstantial evidence relied on by the prosecution. First, the victims described one or more of the offenders as having dark skin. The appellant fits that description. Secondly, the defendant lived in the same street as the victims. Thirdly, some of the jewellery which had been stolen from the female victim was found at about 6.45 am on the morning of 7 December 2002 outside the front of the appellant’s house. Fourthly, DNA of the male victim was found on the jeans which the appellant had been wearing on the morning of the robbery.
In addition to those matters, the appellant was seen by police at about 6.20 am on 7 December 2002 walking on Ivey Street. The appellant was walking alone towards his own home but from a direction opposite that of the victim’s premises.
Of these pieces of circumstantial evidence, the most important was the evidence concerning the DNA. Without the DNA evidence the Crown’s circumstantial case would have been quite weak. The proximity of the appellant’s house to the place where the robbery occurred could explain why jewellery might have been abandoned there. A large number of persons have the same skin colour as the appellant. The appellant gave an explanation for his presence on the street at the early hour of 6.20 am. It is clear enough that without the DNA evidence linking the appellant to the male victim, no reasonable jury could have convicted the appellant. Ms Chapman, for the Director, conceded as much on the appeal.
It was the prosecution case that the DNA on the appellant’s jeans came from blood of the male victim which had stained the jeans during the course of the robbery. A forensic scientist, Mr Hefford, gave evidence that the profile of the DNA found in two samples on the appellant’s jeans matched that of the male victim. He said that the chance of another person, unrelated to the male victim, having the same DNA profile as that found in one sample was less than one in a billion. In relation to another sample, that chance was one in 139 million.
There was no serious challenge to the conclusion that the DNA found on the jeans was that of the male victim.
The appellant maintained that he had not been involved in the robbery, and if the male victim’s DNA was found on the jeans which he had been wearing that morning, that it must have got there as a result of contamination. He argued that the possibility that the contamination was caused inadvertently by actions of investigating police officers who entered both the victims’ house and the appellant’s house could not be excluded.
The Collection of the Jeans and Possible Contamination
As noted above, the appellant was seen by police walking on Ivey Street at approximately 6.20 am. He was wearing a green polo shirt (described by some in the evidence as a T-shirt) and blue jeans. Two police constables spoke to him briefly.
The appellant then entered his house and the two constables went to other duties. At approximately 7.30 am, the appellant showered and changed his clothes. He put the jeans and shirt which he had been wearing on a pile of clothes on the laundry floor to await washing. The shoes which he had been wearing were also placed in the laundry but separately from the pile of clothes. There was some evidence that the laundry floor in the vicinity of the pile of clothes was wet.
Later that morning, at about 9.15 am, the police came to the appellant’s home and spoke to him. He pointed out the clothing and the shoes which he had been wearing earlier that morning and they were taken by the police. It is the circumstances in which the clothing was taken which gives rise, in the appellant’s submission, to the possibility of the jeans having been contaminated with the male victim’s DNA. That could have occurred, it was said, because five of the police officers who entered the appellant’s house had, earlier that day, entered the victims’ home. Because the victim’s blood was widespread in his home, it was possible, so it was submitted, that some of it had, unknown to these police officers, adhered to their footwear or clothing and had separated from that footwear or clothing in the laundry of the appellant’s home at or before the time when the appellant’s jeans were collected. Furthermore, one of the police officers (Detective Slaven) had moved the appellant’s clothing a short distance across the floor of the laundry. It was submitted that that movement, especially if the floor was wet, would have facilitated the transfer of any DNA which was present to the appellant’s clothing.
The police officers who entered the appellant’s home were officers Klose, Cleggett, Phillips, Slaven and Bynoe. Two of those (Klose and Bynoe) could not have been the source of any contamination as they did not handle any of the appellant’s clothing and did not at any time enter the laundry where they were located.
Detective Slaven entered the laundry of the appellant’s home. Once the appellant pointed out his clothing, Detective Slaven used his biro as a probe to separate the T-shirt and jeans from the pile of clothing by moving them a short distance across the floor. He handed the appellant’s shoes to Constable Cleggett and his clothing to Detective Sgt Phillips. Earlier, at about 7.50 am, Detective Slaven had been to the victims’ premises for about 10 minutes, but his evidence was that he had not entered the main bedroom, where most of the blood was located. Thereafter, Detective Slaven had driven to the Port Adelaide Police Station and then to the Queen Elizabeth Hospital before returning to Ivey Street. On his return, at about 9.10 am, Detective Slaven went to the victims’ premises but did not enter the house. From there he drove directly to the appellant’s house.
Constable Cleggett entered the appellant’s house and whilst there walked into the laundry, although she denied walking through the laundry. Constable Cleggett had earlier been in the victims’ house (between 7.15 am – 7.25 am). Thereafter she had been outside the victims’ house on crime scene security duties until shortly before 9.15 am.
Detective Phillips was the third police officer to enter the appellant’s laundry. She picked up the appellant’s T-Shirt and jeans (which had already been separated from the bundle) and took them to the crime scene investigator, Mr Laing. Detective Phillips had been in the victims’ home for approximately five minutes at 8.45 am that morning.
Although these police officers denied having come into contact with any blood at the victims’ premises, the defence case was that one or more may inadvertently have done so, and may have taken some of the victims’ blood with them to the appellant’s home, where, in the course of the police activities, it transferred to the appellant’s jeans.
Ground 1
The appellant argued that in the circumstances just outlined, the actions of the police officers had created the possibility of contamination of the appellant’s clothing which could not reasonably be excluded. It was therefore submitted that the jury verdict was unreasonable or could not be supported by the evidence.
The role of an appellate court considering an appeal on the ground that the verdict is unreasonable, or cannot be sustained by the evidence, is well-established. In R v Shueard (1972) 4 SASR 36 at 39, the Full Court said:
“To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury.”
See also M v The Queen (1994) 181 CLR 487 at 493.
In considering whether the hypothesis of contamination could not reasonably have been excluded by the jury a number of further facts are of assistance. The male victim’s DNA was extracted from stains on the appellant’s jeans. Two considerations suggest that those stains were caused by the male victim’s blood. First, Mr Hefford’s evidence was that the stains reacted positively to the presumptive test for blood which, whilst not conclusive that the stains were blood, indicates that they could have been blood. Secondly, other than from the male victim’s blood, no other possible source of the DNA was identified in the evidence. Mr Lang, who appeared for the appellant, accepted that blood was “most probably” the source of the DNA.
As already noted, DNA was found in two separate stains. One stain was on the front of the left lower leg of the jeans and the other on the rear of the same leg. This means that, on the contamination hypothesis, there would have to have been sufficient blood, either on the shoes or clothing of the police officers, or on the laundry floor, to cause two stains. Although the size of each stain was not given in evidence, this suggests that more than minute amounts of blood would have had to have been present. No-one mentioned seeing any blood at all on the shoes or clothing of the police officers Clegget, Slaven or Phillips or on the laundry floor, let alone in sufficient amounts to have caused the staining in two separate places on the jeans.
The fact that the stains and the DNA were found on both the front and the rear of the left leg of the jeans also militates against accidental contamination in the laundry being a cause. If, as hypothesised, the contamination occurred when the jeans were moved across the floor, it is unlikely that two separate areas on opposite sides of the one leg of the jeans would have been contaminated. This consideration is not decisive because it is possible that the leg was folded in such a way as to expose portions of both the front and rear left leg of the jeans to the floor.
The lapse of time between the entry of the police officers to the victims’ premises and the later entry into the appellant’s premises is also relevant. Similarly, the fact that the police officers, in that period of time, had performed other duties is also relevant. It tends to suggest that if some blood did inadvertently adhere to their footwear or clothing it would either have been noticed by them or alternatively, would have worn off in the intervening time. In Constable Cleggett’s case, a little under two hours had elapsed since she had entered the victims’ premises; in Detective Slaven’s case, a little over an hour had elapsed; and in Detective Phillips’ case, about half an hour had elapsed. It appears from the evidence that Detective Phillips was the last of these three police officers to enter the appellant’s laundry.
Of less significance, but relevant nevertheless, is that DNA was found only on the jeans and not on the appellant’s T-shirt. This is not conclusive because it is possible that the T-shirt never came into contact with the floor of the laundry, being on top of the jeans or other clothing. Furthermore, there was no evidence that the footwear of any of the police officers came into contact with the jeans, nor was there evidence that any police officer had walked over that part of the laundry floor where the bundle of clothes was located, or over that area over which the jeans were moved by Detective Slaven.
The evidence as to the means by which secondary transference of DNA may occur was limited. Mr Laing, the crime scene examiner, confirmed that “forensically viable material” could be transferred by human movement from one location to another but that was an opinion expressed in the most general of terms. He was not asked to express any opinion on the possibility of transference of DNA in the circumstances of this case.
Mr Hefford, the forensic scientist, agreed, as one would expect, that avoidance of contamination is important in DNA analysis. He was then asked, in cross-examination:
“Q. And, for instance, if someone walks through blood, for instance on the ground at a crime scene, and then arrives at a new location, it is possible for them to leave contamination at the new location; is that right?
A.Yes, predominantly in their footprints.
Q.But it can happen through any sort of contact, can’t it?
A.Yes.”

These answers were obvious enough. Common experience indicates that walking through a viscous substance may result in some of that substance being transferred by footwear to another location. That evidence fell well short of establishing that secondary transference was possible in the actual circumstances of this case. The jury did not have any other scientific evidence as to the prospects, or likelihood, of secondary transfer of DNA in this case.
In the circumstances of this case, it seems that for contamination to have occurred, at least one of the police officers must have carried blood on their footwear or clothing to the appellant’s home, and to have transferred by some means or another that blood to two separate areas of the appellant’s jeans in sufficient quantity to cause staining, but without them or anyone else noticing the presence of that blood. In the case of two police officers, that blood would have had to be present on their shoes or clothing for more than one hour whilst they carried out other duties without them, or anyone else, noticing its presence.
Whilst these facts and considerations do not, of course, exclude altogether contamination as a possible cause of the presence of the DNA, they do, in my opinion, indicate that it was a possibility that the jury could reasonably exclude. Whether or not it was to be excluded was a matter for the jury to decide.
Another alternative means of contamination was suggested but argued less forcefully. This was that contamination may have occurred when the clothes were gathered up by, or handed to, Detective Sgt Phillips and carried by her (unpackaged) to Mr Laing, the crime scene examiner. There was scarcely any evidence to provide a factual underpinning for the contamination on this hypothesis and the jury was, in my opinion, entitled to exclude it.
Accordingly, in my opinion, Ground 1 is not made out.
Ground 2: The Directions of the Trial Judge
This ground complains of the summing of the trial Judge to the jury concerning possible contamination.
The trial Judge mentioned the possibility of contamination twice in the course of his summing-up. Both references occurred in the course of his summary of the evidence adduced by the prosecution, and before his directions about, and summary of, the circumstantial nature of the prosecution case. Both references to possible contamination also occurred before the trial Judge’s summary of the evidence called by the defence and the defence case.
The first mention of possible contamination occurred at the end of a summary of the evidence involving the collection of the clothing, the taking of buccal swabs from the appellant and the victims, and the extraction and identification of the DNA. The trial Judge said:
“I won’t go into detail but you will remember the cross-examination of the police officers concerning the question of possible contamination which might explain how that blood got on the accused’s trousers other than coming from the scene, and you have heard Mr Lang’s arguments about that in his address to you.”
The trial Judge then gave a summary of the evidence of Mr Hefford and reminded them of his opinion concerning the match of the DNA of the male victim with the DNA found on the appellant’s jeans. He then said:
“You will remember him being cross-examined especially about the question of contamination. You will remember Mr Lang’s arguments in relation to that.”
Those two passages comprise all that was said to the jury about the issue of possible contamination.
The appellant submitted that as the DNA evidence was crucial to the prosecution case, and as the issue of contamination was central to the defence case, the trial Judge should have placed the weight of his authority behind a specific statement of the importance of the DNA evidence and behind a warning of the need for the jury to be satisfied that the presence of the DNA was not a result of contamination resulting from actions of the police officers. It was not sufficient, it was submitted, for the trial Judge to refer in summary form to the evidence of the police officers, the forensic scientists and to defence counsel’s submissions as he had. The failure of the trial Judge to give a clear direction or warning that the jury had to be satisfied that contamination was not a possible explanation for the presence of the DNA deprived the appellant, it was said, of a chance of acquittal.
The appellant is correct in submitting that the DNA evidence was crucial to the prosecution case. I have mentioned this above. The appellant is also correct in submitting that the hypothesis of contamination as an innocent explanation for the presence of the DNA was central to the defence case. This was evident from Mr Lang’s cross-examination of the police witnesses. Indeed, it seems that additional police witnesses may have been called in the light of Mr Lang’s cross-examination of the crime scene examiner, Mr Laing on this topic. In addition, contamination as a rational hypothesis consistent with innocence was a major theme in Mr Lang’s final submission to the jury. It is, I think, only a slight over-simplification to describe the issue of possible contamination as the issue at the trial. Mr Lang accepted, in his submission to the jury, that in the absence of possible contamination “then you’ve got a case. Then you’ve got a rebuttal to the presumption of innocence perhaps, and then perhaps you have proof beyond reasonable doubt”.
Whilst a trial Judge is not bound to summarise and discuss all the evidence, ordinarily considerations of fairness will require that the respective cases of the prosecution and the accused are put accurately and fairly to the jury.[1] This does not require the Judge to put every argument put forward by counsel for the accused. This is particularly so when the Judge reminds the jury not to overlook what counsel has said on a particular subject matter.[2] The extent to which the Judge should summarise the evidence and point out the issues raised by the defence will vary according to the circumstances of each case and upon the judgment of the trial Judge.[3] In Domican v The Queen[4] the majority of the High Court said:
“Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears upon the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.”
[1]        Domican v The Queen (1992) 173 CLR 555 at 560-561.
[2]        R v Carbone (No 2) (1976) 14 SASR 280 at 286.
[3]        R v Perks (1986) 43 SASR 112 at 116 per King CJ.
[4] (1992) 173 CLR 555 at 561.
The trial in this case was quite short. Although extending over five days, the evidence occupied less than three days in total. The final addresses of counsel and the trial Judge’s summing-up all occurred on the one morning, with the trial Judge’s summing-up following immediately after that of defence counsel. The trial Judge was entitled to consider that the issue of contamination as a hypothesis consistent with innocence, having been mentioned so often in the defence submissions, was obvious to the jury.
Nevertheless, it would have been desirable, in my opinion, for the trial Judge to have said more on the topic of possible contamination and, in particular, of the need for the jury to be satisfied beyond reasonable doubt that the presence of the DNA on the jeans was not explained by inadvertent transference. The importance of the issue at the trial indicates, to my mind, that such a direction would have been appropriate. It was desirable therefore for the trial Judge to go beyond simply reminding the jury of the cross-examination of defence counsel and of his submissions on the topic.
In considering whether a miscarriage of justice resulted by reason of the failure of the trial Judge to say more on this topic, a number of matters need to be borne in mind. The first is that, as already noted, the jury must have been aware of the importance of the issue of possible contamination. An indication that the jury was so aware is provided by a question which they asked. About three hours after retiring, the jury asked to have certain evidence read to them. That was the evidence given by the police and the detectives “regarding the entry of [65] Ivey Street and then 43”. The trial Judge then read the evidence-in-chief of police officers Phillips, Bynoe and Slaven, and later, an extract from the cross-examination of Senior Constable Bynoe. The evidence regarding the entry to the respective houses was the evidence directly relevant to the issue of possible contamination. The jury’s question therefore indicates that it recognised that this was an important issue and that it was focussing on the facts relevant to that issue.
The second consideration is that no complaint was raised by the defence counsel as to the inadequacy of the trial Judge’s summing up. After the jury retired, the trial Judge asked counsel whether either wished to raise a concern that a matter had either not been put, or not put accurately, by him in the course of the summing-up. Each counsel said that they had nothing to raise. The absence of expression of concern at the time of the summing-up is an important consideration.
“What is important to be borne in mind is that the absence of objection by counsel, in particular to matters involving criticism of the form, content or balance of the summing-up, furnishes a basis for concluding that, in the context of the atmosphere as it existed at the trial, and in the contemporary awareness and manner in which the summing-up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing-up. The Court of Criminal Appeal, no matter how experienced its members, and no matter how comprehensive the written record may be, can never hope to recapture the full texture of the atmosphere in which the question of the accused’s guilt was submitted to the jury in the concluding stages of the trial.”[5]
[5]R v Aziz [1982] 2 NSWLR 322 at 331. See also R v Carbone (No 2) (1976) 14 SASR 280 at 287-288 per Bray CJ.
Finally, I note again that this was a short trial in which the issue of possible contamination of the jeans with the male victim’s DNA was recognised as a key issue.
For these reasons, although I consider that it would have been desirable for the trial Judge to have expressly directed the jury’s attention to the importance of the issue, and for the need for them to exclude contamination as a reasonable possibility, I do not consider that a miscarriage of justice has resulted from the trial Judge’s directions.
Conclusion
Accordingly, I would dismiss the appeal.