AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 November 2015

Sloan v R

[2015] NSWCCA 279

Assault & violenceTheft & propertyFirearms & weapons
CONVICTION APPEAL ARMED ROBBERY MASKED OFFENDERS OFFENDERS’ DISCARDED CLOTHES NEARBY STOCKING WORN OVER FACE OF ONE OFFENDER DNA TESTING OF OFFENDERS’ CLOTHES

Citation: Sloan v R [2015] NSWCCA 279
Court: Court of Criminal Appeal, NSW
Date: 4 November 2015
Judge(s): Bathurst CJ, Price J, Beech-Jones J

Background

In June 2012, two masked offenders robbed a TAB outlet at Rosemeadow, wielding a sawn-off shotgun and escaping in a stolen red Commodore. Police located a collection of discarded items in nearby residential gardens, including hooded jumpers, gloves, a backpack, and a black stocking. Witness evidence and surveillance footage supported the inference that these items had been worn during the robbery, and that the offender who wielded the shotgun had worn a stocking over his face.

The appellant, Ashley Sloan, was tried alongside a co-accused in the District Court. The jury convicted both on charges of armed robbery under the Crimes Act 1900 (NSW). The central forensic evidence against the appellant was the presence of his DNA on the black stocking found in the garden.

On appeal, the appellant did not challenge his sentence. He argued solely that the verdicts were unreasonable, or could not be supported by the evidence, because the DNA evidence was insufficient to establish beyond reasonable doubt that he had worn the stocking during the robbery.

  • Whether the conviction was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the presence of the appellant's DNA on the stocking permitted an inference, beyond reasonable doubt, that it was deposited during the commission of the robbery
  • Whether any reasonable alternative hypothesis, such as indirect (secondary) DNA transfer, could account for the presence of the appellant's DNA on the stocking

Decision

Beech-Jones J (with Bathurst CJ and Price J agreeing) dismissed the appeal. His Honour found that the totality of the evidence justified a finding beyond reasonable doubt that the appellant had deposited his DNA on the stocking by wearing it over his face during the robbery. The circumstantial case did not rest on DNA evidence alone; it was supported by eyewitness testimony, surveillance footage, and the physical location of the discarded items.

The court distinguished this case from the High Court's decision in Fitzgerald v The Queen [2014] HCA 28, where a conviction was set aside because evidence of at least two possible occasions of secondary DNA transfer had been identified, raising a reasonable alternative hypothesis consistent with innocence. In the present case, no mechanism for secondary transfer onto the stocking was identified or even suggested by defence counsel at trial. That concession at trial was appropriate, and no alternative hypothesis arose to weaken the inference the Crown sought to draw.

The court emphasised that where the DNA evidence, considered alongside all other evidence, left no reasonable alternative explanation for the presence of the appellant's DNA on the stocking, the jury was entitled to conclude that he had worn it. The circumstantial evidence strongly pointed in one direction, and the appeal could not succeed.

Orders Made

  • Leave granted to the appellant to raise ground 1 of the appeal
  • Appeal dismissed

Key Takeaways

  • A conviction based substantially on DNA evidence is not unreasonable where no credible mechanism for secondary transfer has been identified and no alternative hypothesis consistent with innocence is raised by the evidence.
  • The Court of Criminal Appeal confirmed the approach in Fitzgerald v The Queen: the critical question in DNA cases is not merely whose DNA is present, but when and how it was deposited.
  • Fitzgerald does not operate as a general shield against DNA-based convictions. Its reasoning applies where evidence of secondary transfer exists; it does not assist an appellant where no such evidence or possibility was raised at trial.
  • In dismissing the appeal, the court applied the principle that circumstantial evidence as a whole must be assessed, not evaluated item by item in isolation, consistent with the approach established in cases such as Shepherd v R and M v The Queen.
  • Defence concessions at trial about the absence of a secondary transfer mechanism can be significant: the court noted that the concession by the appellant's counsel during the trial was appropriate and weighed against him on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 97(2), 154A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6

Cases
- Fitzgerald v The Queen [2014] HCA 28; 88 ALJR 779
- M v The Queen [1994] HCA 63; 181 CLR 487
- Shepherd v R [1990] HCA 56; 170 CLR 573
- SKA v R [2011] HCA 13; 243 CLR 400
- Chamberlain v R (No 2) [1984] HCA 7; 153 CLR 521
- Morris v R [1987] HCA 50; 163 CLR 454
- Burrell v R [2009] NSWCCA 193
- W v R [2014] NSWCCA 110