R v WILTON - [2014] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILTON
[2014] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Bampton)
10 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
Appeal against conviction following trial by jury for trafficking in a large commercial quantity of cannabis - police found three groups of bagged cannabis in the boot of a motor vehicle being driven in a northerly direction north of Coober Pedy - the driver was the appellant's half-brother, Hallion, who did not live with the appellant - one group comprised two plastic buckets each containing six plastic shopping bags, all containing about a pound of cannabis - appellant's fingerprints found on 10 of the 12 bags and on one of the buckets - appellant gave evidence that he had no connection with the cannabis, and that Hallion must have used plastic bags from the appellant's home previously used by the appellant for shopping and thus bearing the appellant's fingerprints - he said that he lived with his mother and did the shopping for both of them and that his custom was to store the plastic bags in the house after shopping - whether verdict unreasonable or not supported by the evidence.
Held per Vanstone J (Bampton J agreeing): appeal dismissed - the evidence was capable of excluding any reasonable hypothesis consistent with innocence - while the appellant's answer to the incriminating evidence was not manifestly implausible, it was for the jury to assess all the evidence in the case and to weigh the appellant's evidence - it is a necessary implication of the guilty verdict that the jury rejected the particular innocent explanation advanced by the appellant.
Held per Nicholson J dissenting: taking the evidence as a whole, and after making allowance for the jury's advantage in seeing and hearing the witnesses, there remained a reasonable possibility that the accused's prints were innocently deposited on the plastic bucket and shopping bags containing the cannabis. On that basis, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
M v R (1994) 181 CLR 487; Chidiac v The Queen (1991) 171 CLR 432; R v Dimitropoulos [1992] SASC 3625; R v Arrol [1999] SASC 293; Fitzgerald v The Queen [2014] HCA 28; MFA v The Queen (2002) 213 CLR 606; Shepherd v The Queen (1990) 170 CLR 373; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Liberato v The Queen (1985) 159 CLR 507; Douglass v The Queen [2012] HCA 34; Fox v Percy (2003) 214 CLR 118; R v Tartaglia [2011] SASCFC 88, considered.

R v WILTON
[2014] SASCFC 96
Court of Criminal Appeal: Vanstone, Nicholson and Bampton JJ

VANSTONE J: On 29 September 2011, just north of Coober Pedy, police stopped and searched a blue Kia Carnival vehicle which was travelling in a northerly direction. In the luggage compartment was found a number of bags of cannabis, the total weight of which was just over 18 kilograms.
The driver of the vehicle was one Trevor Hallion. He is the half-brother of the appellant, William Jeffrey Wilton. On 2 April 2014 Hallion pleaded guilty to trafficking in a large commercial quantity of cannabis. The carnival was over.
The appellant was charged with the same offence on the same information. His fingerprints were on some of the plastic bags containing cannabis and on a plastic bucket in which some of those bags were.
The appellant was tried by jury at Port Augusta. He was found guilty by majority verdict. He appeals against his conviction arguing that the verdict of the jury is “unsafe and unsatisfactory”.
Background
In order to assess the probative force of the fingerprint evidence it is necessary to know more about the cargo carried in the Kia Carnival.
By reason of the manner of its packaging, the bagged cannabis naturally divided itself into three groups. A black plastic garbage bag contained eight white, vacuum sealed plastic bags, each containing roughly one pound of cannabis. Two fingerprints of one Shane Joseph Morris were found on the outside of the garbage bag, and two unidentified prints were found on its inside. Then, a large cardboard box contained two vacuum sealed bags, one of which contained nine individual resealable bags of cannabis, each weighing almost exactly one pound; and the other of which contained 11 shopping bags containing cannabis, again, each one weighing almost exactly one pound. None of these items demonstrated any connection to the appellant.
The third group comprised two white plastic buckets, one of which bore the name “John”: Exhibit P3. The lid of the second bucket, P4, was sealed with masking tape. Inside each bucket were plastic shopping bags of various colours. Each one contained very close to one pound of cannabis. The cannabis in P3 filled most of the bucket. It was packed in six plastic shopping bags, which were stacked on top of one another in a flattened fashion, so as to form rough disks. The cannabis contained inside was loose, but compacted. There was residue at the bottom of the bucket. There was no single bag containing the smaller bags. In P4 the cannabis again filled most of the bucket. The lid of the bucket was sealed with masking tape. Within a larger “Cocos” bag were six plastic shopping bags. They were stacked in a manner similar to P3.
The appellant’s fingerprints were on 10 of the 12 plastic shopping bags. Twelve fingerprints and one palm print were found on the plastic bags within one bucket, and 21 fingerprints and two palm prints were found on the bags from the other bucket. There was evidence about the position of those prints on each bag. No fingerprints of Hallion were found in the vehicle. There was evidence that re-use of a shopping bag could quite readily destroy fingerprints left on it earlier.
There was evidence that DNA analysis on the items containing cannabis was inconclusive.
The appellant gave evidence in his defence. He said he was 30 years of age and worked as a bobcat driver for a “civil plumbing” company. He said that in September 2011 he lived with his mother at a Salisbury East address, which the family had owned for many years. He said that his mother was also the mother of Hallion, who was 14 or 15 years older than himself. His mother did not work. He said that he used to do the shopping – sometimes with his mother – on a weekly basis and that he would place used plastic shopping bags in the boot of his car or in a particular cupboard in the kitchen.
The appellant said that Hallion was a fairly regular visitor to the house. However, he was not close to him; he did not really have a relationship with him. The appellant said he was aware of a visit by Hallion in September 2011. The appellant identified the two plastic buckets, partly because of the name “John” being on one of them. These, he said, had been in the shed at the house and he used them when he went fishing. Members of his family would utilise items from the shed from time to time.
The appellant said he had nothing to do with the cannabis Hallion had, nor with his possession of the buckets or bags.
Analysis
The question for this Court is whether, on all the evidence, it was open to the jury to convict: M v The Queen (1994) 181 CLR 487 at 492-495; Chidiac v The Queen (1991) 171 CLR 432 at 443-444 and 451-452.
Mrs Shaw QC, for the appellant, argues that, given the appellant’s evidence was not inconsistent with any other evidence and having regard to the absence of evidence of unexplained wealth or items often associated with a cannabis trader or telephone traffic between the appellant and Hallion, the fingerprint evidence remained equivocal. She submitted that there was nothing to contradict the defence hypothesis that all the items bearing the appellant’s fingerprints were reused items on which the appellant’s fingerprints had previously been deposited.
There is no doubt that the jury would have been assisted by evidence of telephone traffic (if any) between the two men, wider evidence of the relationship between them, and a timely search of the appellant’s home. Such evidence could have assisted either side.
However, even if the defence was not, at face value, implausible, that is not to say that the jury must have acquitted. It was for the jury to evaluate the appellant’s evidence and to determine whether, notwithstanding it, it could be satisfied beyond reasonable doubt of the appellant’s involvement in the crime. After all, the hypothesis said to be consistent with innocence was reliant on the appellant’s evidence that he did the shopping for himself and his mother, that he was assiduous in saving and re-using plastic shopping bags and that these were stored in the kitchen in a position known to Hallion.
In considering these matters the jury was entitled to weigh that on the defence case, not only must a large number of the appellant’s fingerprints and several palm prints have been deposited on at least 10 of the 12 bags in the process of shopping, but 36 of them must have survived the process of the bags being retrieved by Hallion, filled with the correct amount of cannabis, sealed and packed into the bucket, without Hallion depositing any prints of his own. All this despite the evidence that such prints are readily lost. As to the absence of Hallion’s prints, the defence argued that Hallion might have used gloves. That assumes that Hallion was the person who packed the cannabis. The fact that the van contained cannabis which was not uniformly packaged (except within the three groups referred to) and the presence of fingerprints of others told against that possibility.
Mrs Shaw referred the Court to several cases where convictions based solely on fingerprint evidence were quashed.
In R v Dimitropoulos [1992] SASC 3625 the appellant and his brother-in-law were convicted of receiving two motor cars. Two of the appellant’s fingerprints were found on the rocker cover of the engine which had been removed from one of the stolen cars. The engine was found in the garage of the brother-in-law, whose house was next door to the appellant’s. The appellant said the prints must have found their way there when he passed a spanner to his brother-in-law. King CJ, who joined in the decision to quash the appellant’s conviction, found that the evidence was equivocal. He said this at [9]:
There are many ways in which the next door neighbour, being the brother-in-law of the occupant of the garage, namely, the appellant, might come to place his fingerprints upon an engine in his brother-in-law's garage. There are many such ways in which that could occur which could be quite consistent with his never having taken the vehicle into his possession and therefore never having received it.
In R v Arrol [1999] SASC 293 the appellant’s fingerprint was found on a plastic bag containing cannabis which had been consigned by an unknown man giving the name Mason to an addressee, “M. O’Neil”, in Queensland. The appellant disclaimed any connection to the consignment and ventured that, being himself a buyer of cannabis, his print might have been placed on and remained on the bag later used for the consignment. In quashing the conviction Wicks J, with whose reasons Doyle CJ agreed, referred to the appellant’s evidence that he knew a man called Michael O’Neil, who now lived in Queensland, from his days as a crowd controller and that, consistent with call charge records relating to the appellant’s mother’s landline, he might have telephoned him a week prior to the consignment using that telephone. Wicks J said this at [15]:
^[15]On the Crown case there was the bare fact of a phone call having been made; it is not known who made it. In the circumstances, in my opinion, the telephone call proves nothing. The consignment note on the case is of no assistance. The identity of "A Mason" is not known. The name may be fictitious. The sender's address may also be fictitious. An inquiry does not appear to have been made. The bag was to be collected by one M O'Neil. No address for M O'Neil is given but a mobile phone number appears on the consignment note. No evidence was given as to the subscriber of the number concerned.
A close reading of the decision reveals that an important factor in Wicks J’s reasoning was that it was common ground that it was not the appellant who consigned the parcel. Further, the telephone number of the addressee did not match any number appearing on the telephone records of the appellant’s mother.
Another authority was mentioned in passing during the appeal. It was Fitzgerald v The Queen [2014] HCA 28. Fitzgerald’s conviction for murder was quashed by the High Court. The conviction rested solely on evidence of his DNA having been found on a didgeridoo.
The prosecution case was that a number of men forced entry into a house at about 6 o’clock one morning. One of the men, Sumner, who was also convicted, had attended there some hours earlier and been involved in several physical altercations there. Fitzgerald was not present at that time. On the later visit Sumner and his companions were armed with weapons. There was a violent confrontation. One of the persons already present at the house died from injuries sustained in it and another was badly injured. Sumner was recognised by several persons present. No-one identified Fitzgerald as one of the intruders. The didgeridoo was already in the house. One of the occupants, Ms Webb, said that, when the house was being entered, she had picked it up in the kitchen. She did not recall how it left her possession. It was found in the lounge. The didgeridoo also bore the DNA of both victims and several unidentified persons.
It was critical to the case against Fitzgerald that the prosecution prove that Fitzgerald’s DNA was deposited onto the didgeridoo by him, on the occasion of the attack. There was evidence from the owner that Fitzgerald had not, to her knowledge, been to the house on any prior occasion.
Fitzgerald did not give evidence. However Sumner gave evidence that on the previous evening he had seen Fitzgerald at a gymnasium and had shaken his hand. The defence theory was that Sumner might thereby have received some of Fitzgerald’s DNA and transferred it to the didgeridoo on either of his later visits to the house. The DNA expert called by the prosecution was closely questioned about secondary transference. As mentioned, while the Court of Criminal Appeal dismissed Fitzgerald’s appeal, the High Court reversed that decision on the basis that the verdict was unreasonable or could not be supported having regard to the evidence.
In my view it is unwise to approach Fitzgerald as a case turning on the possibility that Sumner had deposited Fitzgerald’s DNA on the didgeridoo during the incident which led to the victim’s death, or during Sumner’s earlier visit to the premises. The jury was entitled to reject that evidence and must have done so. The real question was whether it was open to the jury to convict in the absence of any evidence that Fitzgerald was present on the occasion of the victim’s death, any evidence that the didgeridoo was handled by any assailant, any evidence that Fitzgerald’s DNA was placed on the didgeridoo via a deposit of his blood, any scientific opinion excluding secondary transference, and any clear evidence that Fitzgerald had not handled the didgeridoo (either at the house or elsewhere) on another occasion. The High Court held it was not.
These cases are instructive, but ultimately each turns on its own facts. The facts of the present appeal are very different.
In the present matter the appellant’s answer to the charge grapples with many more than one print, and the innocent explanation proffered is much more complicated and improbable than in either Dimitropoulos or Arrol. In those cases contact with the relevant object was not proved to be more than fleeting. In Fitzgerald the timing of the deposit of Fitzgerald’s DNA was critical. With or without the evidence of all three of those defendants, the cases against them were tenuous.
I consider that the connection between the appellant and the crime is far greater in the present case than it was in any of the previous decisions mentioned. Here, there were multiple fingerprints on 10 of the 12 plastic bags located within the two plastic buckets and one of those buckets bore the appellant’s fingerprints. Having regard to the evidence of the fingerprint expert that subsequent dealings with plastic bags would likely have the effect of destroying prints already placed on them, the number of prints located was significant. It was also significant that 10 of the 12 bags bore fingerprints. The jury might have taken the view that the process of placing cannabis in plastic bags, weighing it and wrapping it, was an activity much more likely to result in the deposit of fingerprints than merely using a bag to shop. Therefore, the fact that almost all of the bags in the plastic buckets bore the accused’s fingerprints could have been considered by the jury to be significant.
As I have earlier observed, it was for the jury to weigh the appellant’s evidence. Correctly, the trial judge told the jury that it was for the jury alone to decide whether it believed the whole or any particular part of the evidence of any witness.
The statements made by the appellant in his evidence about his doing the shopping for his mother, his retention of plastic shopping bags, the access enjoyed by Hallion to the house and the appellant’s use of the plastic buckets for fishing were all matters entirely within his knowledge. It would not have been appropriate for counsel for the prosecution to directly challenge the appellant on those matters because, of necessity, he had no instructions upon them. However, counsel was entitled to probe them and highlight any improbabilities arising from them. Even had he not challenged them in any way, it remained for the jury to accept or reject the appellant’s evidence at its will. The jury was reminded by the trial judge that, even if it ultimately rejected the appellant’s evidence, it would not follow that he was to be found guilty. The matter would then fall to be determined on the basis of the other evidence and whether the case was proved beyond reasonable doubt. The matter was fairly left to the jury.
Conclusion
In my view the prosecution evidence established a case to answer. It is not surprising that no submission to the contrary was made at trial. The prosecution evidence summarised earlier was capable of excluding any reasonable hypothesis consistent with innocence. It is a necessary implication of the guilty verdict that the jury rejected the particular innocent explanation advanced by the appellant in his testimony. In the absence of credible evidence which the jury was prepared to entertain of an innocent explanation the jury was satisfied that the prosecution evidence was not only capable of, but did in fact, prove the appellant’s guilt beyond reasonable doubt. My own review of the evidence leads me to the same conclusion.
While, on its face, the appellant’s answer to the evidence incriminating him was not manifestly implausible, it was for the jury to assess all the evidence in the case. It cannot be said that its verdict was unreasonable or not supported by the evidence.

I would dismiss the appeal.
NICHOLSON J: I have had the advantage of reading in draft the reasons of Vanstone J. I gratefully adopt her Honour’s account of the Crown case and evidence in support but subject to some further amplification which I set out below. I am unable to reach the same conclusion as her Honour. I would allow the appeal, quash the conviction and order that a verdict of acquittal be entered.
The sole ground of appeal is that the verdict of the jury should be seen as “unsafe and unsatisfactory”. Subsection 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides, in part:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence...
The appellant seeks to invoke the power of the Court of Criminal Appeal to set aside a verdict on this basis.
In MFA v The Queen[1] Gleeson CJ, Hayne and Callinan JJ said this.
Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as "unsafe or unsatisfactory", or "unjust or unsafe", or "dangerous or unsafe" to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
[1] [2002] HCA 53, (2002) 213 CLR 606 at [25] (footnotes omitted).
In MFA, McHugh, Gummow and Kirby JJ[2] canvassed the developing case law leading to the formulation or confirmation of the test as stated in M v The Queen.[3] McHugh, Gummow and Kirby JJ went on to observe:[4]
[2]    At [44]-[59] (footnotes omitted).
[3] [1994] HCA 43, (1994) 181 CLR 487.
[4]    At [47]-[50] (footnotes omitted).
When attention is focussed on the actual language of s 6(1) of the Act, it appears to confer a very large power to be applied by reference to criteria that are not stated in restrictive or narrow terms. On the face of things "unreasonable", in particular, seems to state a very broad test.
Two indications in s 6(1) suggest that this seeming amplitude is to be restricted somewhat having regard to the context. The first such consideration is that the subject matter of the appellate court's decision is a "verdict of the jury". Conventionally, the jury has been described as the constitutional tribunal for deciding contested facts. In respect of the specified cases, the jury occupies an undoubted constitutional status in the federal offences to which s 80 of the Australian Constitution applies. A jury is taken to be a kind of microcosm of the community. A "verdict of [a] jury", particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality.
In that context, and against the background of the tradition of the jury trial over the centuries, the setting aside of a jury's verdict is, on any view, a serious step. Hence, it is a step that assigns to the words "unreasonable" or "[un]supported" in s 6(1) of the Act a strictness of meaning that, in isolation or in other contexts, those words might not enjoy.
The second contextual indication of what s 6(1) of the Act is driving at is given by the reference to the demonstration, "on any other ground whatsoever", of a "miscarriage of justice". These words suggest that the kind of "unreasonable" verdict or verdict that "cannot be supported, having regard to the evidence" with which s 6(1) is concerned is one that leaves the appellate court believing that, notwithstanding the verdict, there has been a "miscarriage of justice".
Their Honours continued:[5]
[I]n M, the majority of this Court favoured what might be termed a "broader" test for unreasonableness or unsupportability of a verdict. Instead of asking whether the jury "must" or were "bound to" have a reasonable doubt about the accused's guilt, the majority posed the question whether it was "open to the jury" to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict "upon the whole of the evidence".
The majority in M pointed out that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced". In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
[5]    At [55]-[56] (footnotes omitted).
The Crown case was wholly circumstantial. However, apart from the appellant’s relationship with the person found in possession of the subject cannabis (his stepbrother, Mr Trevor Hallion) the only evidence purporting to link the appellant with the cannabis trafficking operation was the presence of his finger and palm prints on one of the buckets and on a number of the reusable shopping type plastic bags in which some of the cannabis was packaged and found in each of two buckets. It is an essential “link” in the Crown case that at least some of the appellant’s prints, as found, had been deposited by him at a time when he was participating in packaging or otherwise dealing with the cannabis. As such, this must be proved beyond reasonable doubt.[6] The Crown must prove that the only rational inference available on all of the evidence is that at least some of the prints were deposited by the appellant in incriminating circumstances.[7]
[6] Shepherd v The Queen [1990] HCA 56, (1990) 170 CLR 373.
[7] Peacock v The King [1911] HCA 66, (1911) 13 CLR 619; Plomp v The Queen [1963] HCA 44, (1963) 110 CLR 234.
I turn now to canvass some further aspects of the evidence. The appellant said that he either assisted his mother to do the shopping or did the shopping himself, on a weekly basis. He retained a large number of reusable plastic shopping bags acquired for this purpose. From time to time he would have in the order of 50 of these shopping bags which he kept in a kitchen cupboard and in his car. He was cross examined at some length as to his “technique” (my word) when unpacking and re-storing the bags after each shopping expedition. The flavour of this evidence is apparent from the following exchange.[8]
[8] T111-112.
QSo you would come home from doing your shopping and you would scrunch the bag up and throw it –
AYou wouldn’t scrunch the bag up, not necessarily all the time, sometimes you would open the door, they would all fall out, you kind of pushed them to stay in there when you shut the door.
QSo you wouldn’t take your bags and flatten them out and place them one on top of the other.
ANo, but I also wouldn’t scrunch them up.
And again in the following exchange.[9]
QI just want to make your evidence clear; is your evidence that you would never take your plastic shopping bag and scrunch it into a ball and throw it in the cupboard.
AEach time was different.
QIs it your evidence that sometimes you would scrunch the bags.
AYes, correct.
QOther times you might place it into the cupboard.
ACorrect.
Not surprisingly, the appellant acceded to the cross-examiner’s proposition that there was no rhyme or reason to how he put the bags in the cupboard.
[9] T112-113.
The appellant readily conceded that he had a number of buckets of the type found with his prints on it. He obtained these from building sites and kept them in his shed at home. He used them, routinely, for fishing and for cleaning up rubbish around the house.
The appellant’s evidence was to the effect that his stepbrother, Mr Hallion, would come to the family home from time to time to visit their mother, that Mr Hallion had access to the house and to the shed as he wished and that he had the opportunity, from time to time, to take things from the house and shed as he wished. The appellant said that he and Mr Hallion were not close and no evidence was adduced by the Crown to gainsay this. According to the appellant, they did not associate apart from in passing, as and when Mr Hallion came to the house to visit their mother.
The Crown fingerprint expert, Karen Clegg, gave evidence concerning the location, matching and identification of various finger and palm prints (including those of the appellant) on items associated with the trafficking operation. This aspect of Ms Clegg’s evidence is explored in some detail in the judgment of Vanstone J and further below. However, Ms Clegg also gave a general explanation of what one might expect to happen to fingerprints deposited on reusable plastic shopping bags. The evidence on this topic, given in chief, was favourable to the prosecution but that given in cross-examination was favourable to the defence. This can be explained, in part, by the fact that this expert witness was endeavouring to offer independent and properly qualified opinions on topics about which, given their nature, there can be no certainty. Ms Clegg said the following in her evidence in chief.[10]
[10] T94-95.
QJust on that issue of the creases, on an item such as a plastic bag, is it easier to find a clear print on an area that doesn’t have creases.
AThat’s correct.
QAnd so, would I be right in saying that an area that is crumpled up, for example the handles, you might find it more difficult to have a fingerprint impression from there.
AThat’s correct. The creases would actually destroy the ridge detail when we actually look at it, it puts too many breaks and divisions for us to get a clear view of the fingerprint characteristics.
QWould I also be right in saying that if a fingerprint was left on a nice clean flat part of the bag and then afterwards someone crumples up the bag, will that make it for (sic: more) difficult to develop a print from that.
AIf they crumpled the bag up they could actually destroy the fingerprint that was on there in the first place, they are very easy to remove off a flat porous surface, especially plastic, because they rip off very easily.
QAlthough we can’t say when the fingerprint has been left if a plastic bag, for example, has been used after a fingerprint has been put on it, then it might destroy that print.
AThat’s correct.
QAnd in your experience do you find that plastic bags are particularly susceptible to that problem.
AYes, that’s correct.
The support which this evidence lent to the Crown case was undermined by evidence given by Ms Clegg during cross-examination.[11]
[11] T98-99.
QAnd a fingerprint will last on a surface, provided it’s not disturbed, for a long period of time. We are talking decades; would that be right.
AYes, that’s correct.
QBut a fingerprint can be destroyed very quickly if it comes into dust, dirt, water or some other abrasive to the area of the fingerprint, is that right.
AYes, that’s correct.
QAnd some people who sweat a lot seem to leave, can leave lots of fingerprints, some people are dainty may not necessarily leave as many fingerprints; would that be right or wrong.
AYeah, that’s correct.
QAlso if a particular item, say, a glass is handled two, three, four times by the same person they are more likely to leave more fingerprints than if they only handled once.
AYes.
QAnd indeed, if you have a reusable plastic bag, and it was handled several times, it’s likely that a person would leave finger prints on the reusable plastic bag if they handled it more than once.
AThat’s correct.
QAnd in terms of the buckets that you examined, ... . Again, obviously the more times you handle the bucket the more likely it is that you would leave your prints on the bucket; yes.
AYes, that’s correct.
QMy friend asked you this question about plastic bags being more susceptible to loss of a fingerprint; obviously that is dependent on a large number of circumstances, how the plastic bag is kept, whether it’s come in contact [sic], whether there is friction, a whole series of things which would obviously qualify that answer that you gave, would that be correct.
AYes, that’s correct.
QIf you went on a shopping spree, and you have 10 plastic bags, you emptied your bags out, then you put them into a cupboard where they are obviously out of the elements, the fingerprints wouldn’t be destroyed would they.
ANo.
QIndeed, if the plastic bags are used over and over and over again, there may well be fingerprints left on the bags, from previous trips, notwithstanding that they continue to be used.
AThat’s correct.
In M v The Queen, the majority observed[12] that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced and in such a case of doubt, it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred. In this case, the jury did have the advantage of hearing from the appellant himself, an advantage which this Court has not enjoyed.
[12] (1994) 181 CLR 487 at 494.
Nevertheless, whilst it is clear that the jury rejected the defence case there is no way of knowing the basis or bases upon which the defence case was rejected. By way of examples only: it may have been that the jury rejected the appellant’s account of his storage and method of dealing with reusable shopping bags; it may have been that the jury, whilst acknowledging this as a reasonable possibility but after reviewing the expert evidence, rejected the appellant’s account as giving rise to a reasonably possible explanation for the presence of his prints as found on various of the plastic bags and the white plastic bucket.
The question before this Court is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Even if the jury was not positively persuaded by the appellant’s evidence as to the (domestic) manner by which his prints did come to be on plastic reusable shopping bags and one of the buckets in which some of the cannabis was packed, it could not convict unless satisfied beyond reasonable doubt that this innocent explanation was not possible.[13]
[13] Liberato v The Queen [1985] HCA 66, (1985) 159 CLR 507 at 515 (Brennan J), Douglass v The Queen [2012] HCA 34 at [13].
I have reached the view that it was not open to the jury (acting reasonably) to dismiss the appellant’s account of how he routinely stored and dealt with reusable plastic shopping bags and the buckets, as being reasonably possible. Similarly, the uncontested evidence as given by the appellant and the fact that he and Mr Hallion shared the same mother (with whom the appellant lived), meant that it was not open to the jury to dismiss, if only as a reasonable possibility, that Mr Hallion had access to the appellant’s house and its contents leading up to when the packaged cannabis was seized from Mr Hallion’s van.
In reaching these conclusions, I have recognised, but have given limited weight to, the apparent advantage the jury had in being able to see and hear the appellant give his evidence. That the demeanour of a witness (and its associated notions) taken alone will not always be a reliable guide is well accepted. In Fox v Percy[14] Gleeson CJ, Gummow and Kirby JJ observed:
It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[14] [2003] HCA 22, (2003) 214 CLR 118 at [30]-[31] (footnotes omitted).
In the present case, the prosecution tested the appellant’s account concerning his domestic use of the plastic buckets and reusable shopping bags and I assume that the prosecutor went as far, in probing and highlighting improbabilities, as his instructions permitted. It was a limited case, in this respect, that the prosecution was able to put during cross-examination; the fact is that the appellant’s account concerning his domestic usage was not directly challenged and the prosecution did not adduce any evidence to undermine it.
The jury had before it an account of domestic behaviour which behaviour was, in principle, not implausible, although views might differ as to the extent of its intrinsic likelihood. There were no objective considerations in the evidence which might militate against its reliability. There was no evidence (for example, telephone traffic) to connect the appellant in any way with his stepbrother, Mr Hallion, other than through Mr Hallion’s visits to his mother. Furthermore, as I have said, the only question before the jury, in this respect, was whether the appellant’s account was a reasonable possibility. In these circumstances, I am not satisfied that this jury’s advantage in seeing and hearing the appellant should be accorded particular weight.[15]
[15] M v The Queen [1994] HCA 63, (1994) 181 CLR 487 at [9].

The reasoning to this point, in part, bears an analogy with that implicit in R v Fitzgerald.[16] The facts and the reasoning in that case have been canvassed by Vanstone J. However, I place a different emphasis on the reasoning of the High Court. The Court[17] ultimately concluded, inter alia, that a secondary transfer of Fitzgerald’s DNA onto the didgeridoo should have been accepted by the jury as a reasonable possibility.[18]
[T]here was no conflict in the evidence that there were at least two distinct occasions, described above, on which a secondary transfer of the appellant's DNA to the didgeridoo may have occurred. ... [I]t could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt. Alternative hypotheses consistent with the appellant's innocence, in particular the hypothesis that Sumner transferred the appellant's DNA to the didgeridoo on Sumner's first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them.
Of present significance is the intermediate finding implicit in the concluding observation; in the circumstances, it was not open to the jury to reject, as reasonably possible, the evidence of the co-accused (Mr Sumner) concerning his opportunity to acquire contact DNA from Mr Fitzgerald at the gymnasium.[19] This was so, notwithstanding that the jury had the advantage of seeing and hearing Mr Sumner give the evidence.
[16] [2014] HCA 28.
[17] Hayne, Crennan, Kiefel, Bell and Gageler JJ.
[18] At [36] (footnotes omitted).
[19] And, thus, to be in a position to effect a secondary transfer.
I do not suggest that an innocent explanation provided under oath and not directly challenged by contrary evidence, must necessarily lead to a finding of an unsafe and unsatisfactory verdict. The jury and any Court on appeal is obliged to carefully consider all of the evidence and to assess the credibility and reliability of an accused’s explanations in the context of the whole of the evidence and bearing in mind that the Crown bears the onus to prove its case beyond reasonable doubt.
There is force in the argument that the number of the appellant’s prints found, the number of bags containing his prints and the fact that they were confined to one only of the three tranches of packaged cannabis, tends against an innocent explanation and adds substantial strength to the Crown case. However, further matters to consider are the nature and the disposition of the prints as found.
Comparison prints made available to Ms Clegg were those of the appellant, a Shane Joseph Morris and the stepbrother, Trevor Hallion. As Vanstone J has described, a number of the prints located were identified as those of Mr Morris and those of the appellant. There was a very small number of prints located that had insufficient detail to permit an identification (with any comparitor). There were four prints that could not be identified in the sense that the appellant, Mr Morris and Mr Hallion were all positively excluded.[20] No prints for Mr Hallion were located on any of the packaging or in the vehicle itself. It can be inferred with some degree of likelihood that Mr Hallion exercised care in this respect and may have worn gloves.
[20] T85-86, 92.
Vanstone J has described the three tranches of packaged cannabis found in the vehicle. As far as the black plastic garbage bag and its contents (eight vacuum sealed plastic bags) is concerned, the only usable[21] prints located were four prints of Mr Morris on the outside of the black garbage bag and two unidentified prints on the inside of that bag. No useable prints were located on any of the contents. It can be inferred that Mr Morris and at least one other person had come into physical contact with the black garbage bag at some time. It can also be inferred with some degree of likelihood that whoever packaged the contents of the black garbage bag, like Mr Hallion (if not Mr Hallion), exercised care in this respect. What is known from the finding of the appellant’s prints is that, where care is not exercised, usable prints are readily deposited on plastic bags.
[21] That is not to say that unusable prints, that is prints with insufficient detail, were located. The evidence of Ms Clegg as to how many, if any, poor quality prints were ignored is unclear, see T100.
As far as the cardboard box and its contents (two vacuum sealed plastic bags each containing nine and 11 plastic bags) is concerned no prints were located. Again, whoever packed this tranche probably exercised some care to avoid leaving prints.
The third tranche concerned the two white plastic buckets and their contents on which a substantial number of the appellant’s prints were found. If the appellant packaged this tranche, he would appear to have exercised no care at all. Of some potential significance is that two unidentified prints also were located: one on a white plastic shopping bag in the bucket, exhibit P3, and one on a white plastic shopping bag in the other bucket, exhibit P4. It can be inferred that a person other than the appellant had physical contact at some time with at least one of the plastic bags in each bucket. The evidence of Ms Clegg does not assist in determining whether these two unidentified prints are themselves identical (the same person) and whether this person or persons are the same person or persons who left the two unidentified prints on the black plastic garbage bag.
The apparent disparity in the care taken concerning the leaving of prints between others involved and the appellant (on the Crown case) and the available inference that at least one other person may have had a (physical) connection with the contents of the buckets, P3 and P4, are considerations consistent with the appellant’s explanation.
Of course there are possible explanations for these two considerations consistent with guilt. The appellant may simply have been careless or may also have used gloves while packaging the third tranche of cannabis oblivious to the fact that his prints were already on the plastic bags as a result of earlier shopping expeditions. The two unidentified prints might simply be those of his mother from when she assisted with the shopping. Nevertheless, the appellant does not have to prove his defence. These potential answers do not mean that these two considerations should not form part of the process of assessing the reasonableness of possibilities.
Once it is accepted (as I do) that it was not open to the jury to exclude as a reasonable possibility the appellant’s account of his domestic dealings with the reusable plastic bags and the buckets, such acceptance, together with the expert fingerprint evidence given in cross-examination, leads to the further conclusion that it is a reasonable possibility that at least some of the prints, as found, were deposited innocently. From that point, the Crown faces this difficulty: if it is a reasonable possibility that some of the prints were deposited innocently, why is it not a reasonable possibility that all were?
I conclude that the evidence as a whole admits of these three possibilities:
(i)All prints, as found, were new (deposited by the appellant during the trafficking operation).[22]
(ii)All prints, as found, were old (innocently deposited).
(iii)The prints, as found, comprised a mixture of new and old.
[22] This could occur even if the appellant’s account of his domestic use of the items in question was correct provided that any old prints had been removed or obliterated by the time the new prints were deposited.
Having reviewed the whole of the evidence, I can see no basis for accepting that either (i) or (iii) is proven beyond reasonable doubt. Whilst one might take the view, in reliance on the expert evidence, that (i) or (iii) alone or in combination are more likely than (ii), that is as far as the evidence could take the matter. I return to answer my earlier rhetorical question. In my view, it was not open to the jury (acting reasonably) to exclude as a reasonable possibility that all of the prints, as found, were old.
The cases referred to in argument, such as R v Fitzgerald,[23] R v Arrol,[24] R v Tartaglia[25] and R v Dimitropoulos,[26] all turn on the application of established principle to a close appreciation of the evidence that was before the trier of fact in each case. As such, they can be of only limited assistance each time the question of whether or not a verdict is “unsafe or unsatisfactory” arises.
[23] [2014] HCA 28.
[24] [1999] SASC 293.
[25] [2011] SASCFC 88.
[26] Unreported, Court of Criminal Appeal, 18 September 1992, judgment no S3625.
The evidence in this case did not support the appellant’s conviction. As such, an order for a new trial would not be appropriate. I would allow the appeal, I would order that the appellant’s conviction be quashed and I would direct that a verdict of acquittal of the charged offence, trafficking in a large commercial quantity of a controlled drug, be entered.
BAMPTON J: I agree with the reasons of Vanstone J and would dismiss the appeal.