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Court of Criminal Appeal 14 September 2009

Hong v Regina

[2009] NSWCCA 242

Drugs
CRIMINAL LAW APPEAL AND ACQUITTAL FINGERPRINTS

Citation: Hong v Regina [2009] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 14 September 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Grove J

Background

The appellant was convicted by a jury in the District Court of knowingly taking part in the supply of a commercial quantity of methylamphetamine (approximately 941 grams) on or about 14 February 2007. The conviction arose after police arrested a man named Ricky Thoo and discovered drugs in a garage he had just unlocked. The appellant was not present at the garage, and no surveillance or physical evidence placed him there.

The only evidence connecting the appellant to the drugs was fingerprint evidence. His fingerprints appeared on seven of 72 plastic bags found at the scene, each containing methylamphetamine. The bags were the kind commonly used to package items in Ricky Thoo's legitimate mobile phone business, where the appellant regularly ran errands.

The defence called evidence from a former manager of that business, who confirmed the appellant frequently handled identical plastic bags in the course of picking up and returning repaired phones. Expert fingerprint evidence confirmed it was impossible to determine when the prints were applied, whether the bags were empty at the time, or where the bags were located when touched.

  • Whether the jury's verdict was unreasonable or insupportable having regard to the evidence, under the test applicable to circumstantial cases
  • Whether, in a circumstantial case resting on a single circumstance (fingerprint evidence), the prosecution had excluded all reasonable hypotheses consistent with innocence
  • Whether the trial judge erred in directing the jury on the circumstantial evidence

Decision

The Court of Criminal Appeal held that the verdict was unreasonable and could not be supported having regard to the evidence. The case against the appellant rested entirely on fingerprint evidence, with no surveillance placing him at the garage, no DNA evidence, no drug traces on the bags at the points where his prints were found, and no other linking circumstance.

The Court emphasised that Thoo himself had told police the appellant had nothing to do with the drugs, and that the appellant ran errands for Thoo's phone business using identical bags. The fingerprint experts conceded they could not say when the prints were applied, whether the bags were empty at the time, or what had been in them. Taken together, this evidence left open a reasonable hypothesis consistent with innocence: that the appellant had simply handled those bags in his ordinary work for the phone business before they were ever used to package drugs.

Where a circumstantial case rests on a single circumstance, the prosecution must exclude a reasonable hypothesis consistent with innocence. The Court found this requirement was not met. The fact that fingerprints appeared on approximately 10 percent of the bags, without more, was insufficient to exclude the innocent explanation supported by the defence evidence.

On a secondary ground concerning the trial judge's directions to the jury, the Court noted it was unnecessary to resolve whether a particular direction was required, given the primary ground succeeded. The Court also reiterated that the Criminal Trial Courts Bench Book does not constitute an authoritative statement of the law and that a failure to direct in accordance with its suggested wording is not, of itself, indicative of legal error on appeal.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • Verdict of acquittal directed

Key Takeaways

  • A conviction in a purely circumstantial case requires the prosecution to exclude, beyond reasonable doubt, all reasonable hypotheses consistent with innocence; where only a single circumstance exists, this burden is particularly demanding.
  • Fingerprint evidence alone cannot sustain a conviction where credible evidence explains how those prints came to be on the relevant items through entirely innocent contact.
  • The Court of Criminal Appeal confirmed that the inability to establish the timing, location, or context of fingerprint application is a significant evidentiary gap in a circumstantial prosecution.
  • Statements by co-offenders or associates to police that an accused person had no involvement, combined with a plausible innocent explanation, can together prevent a single circumstance from excluding a hypothesis consistent with innocence.
  • The Criminal Trial Courts Bench Book contains suggested guidance only; it is not an authoritative statement of the law, and departing from its suggested directions does not, in itself, constitute a ground of appeal.

Legislation and Cases Referenced

Cases Cited:
- Chahine v R [2006] NSWCCA 179
- Halmi v R [2008] NSWCCA 259
- Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Rasic v Regina [2009] NSWCCA 202
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Ingivald (NSWCCA, 14 April 1989, unreported)
- R v Laing (NSWCCA, 20 June 1996, unreported)
- R v Zoef [2005] NSWCCA 268
- R v Zouras [2002] VSCA 182

Legislation: Not stated in the judgment.