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Court of Criminal Appeal 16 December 2011

McLEAN, Michael v R

[2011] NSWCCA 273

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION CONVICTION QUASHED.

Citation: McLean, Michael v R [2011] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 16 December 2011
Judges: Allsop P, Simpson J, Buddin J

Background

The appellant was convicted by a jury in the District Court at Parramatta of robbery whilst in the company of unknown persons, contrary to s 97(1) of the Crimes Act 1900 (NSW). The robbery occurred at a jewellery store in Parramatta on Easter Monday 2009, when three men entered or waited outside the store, produced a firearm, forced the owner to open safes, and took CCTV recordings before tying up the owner and fleeing.

The prosecution's case rested almost entirely on DNA evidence. A swab taken from a glass counter at the scene matched the appellant's DNA profile. No witness identified the appellant as one of the offenders.

The appellant was sentenced to seven years and four months imprisonment with a non-parole period of four years and four months. He appealed to the Court of Criminal Appeal on the ground that the verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether a DNA match at the scene, combined with the remaining evidence, was sufficient to exclude a reasonable doubt as to the appellant's guilt
  • Whether the description of the offenders by the store owner was consistent with or raised doubt about the appellant's involvement

Decision

The Court applied the test from SKA v The Queen, MFA v The Queen, and M v The Queen, conducting its own independent assessment of the quality and sufficiency of all evidence while giving due regard to the jury's advantage in seeing and hearing witnesses. The Court concluded the evidence admitted necessarily of a reasonable doubt.

The store owner's description of the two men inside the store created significant disconformities with the appellant's appearance. The man who produced the firearm had a tattoo on his neck, which the appellant did not have. The second man was described as being of Middle Eastern or similar appearance and wore a Hawaiian shirt with short sleeves, with no mention of tattoos. The appellant is not of that ethnic description and has prominent tattoos on his forearms. The Court found that not only was there no identification evidence implicating the appellant, but the existing description evidence raised positive doubt about his being present.

On the DNA evidence, the Court accepted that the scientific reliability of the match was not in dispute. However, the critical factual question was whether the DNA had necessarily been deposited during the robbery itself. The store owner's evidence about cleaning the glass counter was drawn from usual practice rather than specific recollection, and there was evidence of customers in the store earlier that day whose identities were unknown. The Court found it was reasonably possible the appellant had visited the shop at another time that day, or even during the previous week.

The appellant's record of interview, conducted approximately ten months after the robbery, was described by the Court as an inadequate basis for any clear denial of having been in the store. The police had described the shop inadequately and inaccurately during the interview, and any denial given was equivocal. Combining the absence of clear denial with the identification disconformities and the uncertainty around when the DNA was deposited, the Court was satisfied a reasonable doubt existed and that the conviction could not stand.

Orders Made

  • The appeal was allowed
  • The conviction was set aside
  • An acquittal was directed

Key Takeaways

  • A DNA match at a crime scene does not by itself establish guilt beyond reasonable doubt where the evidence cannot exclude the reasonable possibility that the DNA was deposited on another occasion.
  • Where a complainant's physical description of an offender is positively inconsistent with the accused's appearance, that description can raise doubt rather than merely fail to assist the prosecution.
  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW) and the principles in SKA v The Queen, the Court of Criminal Appeal conducts its own independent assessment of the evidence and may quash a conviction if satisfied a reasonable doubt exists, even where a jury found otherwise.
  • An equivocal or imprecise denial obtained during a police interview, particularly where the interview itself inaccurately describes the relevant location, carries limited weight as evidence of consciousness of guilt.
  • Sufficient evidence of an alternative innocent explanation for physical evidence at a crime scene, such as a prior visit to the premises, can undermine the prosecution's ability to exclude reasonable doubt even when scientific evidence is accepted as reliable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst in company)
- Criminal Appeal Act 1912 (NSW), s 6(1) (unreasonable verdict ground of appeal)

Cases
- SKA v The Queen [2011] HCA 13; 83 ALJR 571
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- M v The Queen [1994] HCA 63; 181 CLR 487