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Court of Criminal Appeal 6 September 2021

Seifeddine v R

[2021] NSWCCA 214

Firearms & weapons
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER VERDICTS UNREASONABLE CIRCUMSTANTIAL CROWN CASE

Citation: Seifeddine v R [2021] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 6 September 2021
Judges: McCallum JA, Garling J, Cavanagh J

Background

The appellant was a part-time employee working as a "kofta chef" at a café owned by his co-accused. During the execution of a search warrant in August 2017, police found three unlicensed firearms, two prohibited magazines, and ammunition concealed in a pickle bucket hidden in a wall cavity within the café's storage area. Neither the appellant nor the co-accused held firearms licences.

Both men were tried jointly in the District Court and convicted on all nine counts. The appellant was sentenced to an aggregate term of 5 years and 6 months with a non-parole period of 3 years and 5 months. The agreed facts established the status of the weapons and the lack of any licence; the only live issue at trial was whether the appellant knowingly possessed the items.

The Crown case was entirely circumstantial. Its five elements included the appellant's regular presence at the café, his access to the storage room, CCTV footage showing him briefly accessing the wall cavity area the day before the search, the fact that only he and the café owner had done so during the preceding eight days, and DNA matching his profile found on the trigger area of a Smith and Wesson revolver.

  • Whether the jury's guilty verdicts were unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the Crown, in relying on DNA evidence as part of a circumstantial case, sufficiently excluded the reasonable possibility that the appellant's DNA reached the firearm through secondary transfer rather than direct handling

Decision

The Court of Criminal Appeal allowed the appeal on a narrow but decisive point. The DNA evidence was collected only after police had already handled the firearms during the execution of the search warrant, necessarily picking them up and manipulating them to render them safe. The entire process was filmed. Before DNA testing was conducted, police officers had already handled items in and around the pickle bucket, creating a documented pathway for potential secondary transfer of DNA.

Expert evidence from the forensic biologist, Ms Bate, acknowledged several routes by which the appellant's DNA could have reached the revolver's trigger area without him ever having touched it. These included transfer via the sock in which the revolver was wrapped, via the yellow towel also found in the bucket, or via the pickle bucket itself, any of which could have carried the appellant's DNA to the revolver during police handling. Ms Bate also accepted that a third unknown individual could have handled the sock after it bore the appellant's DNA and then placed the revolver into it.

The Court concluded that the reasonable possibility of secondary transfer was not only unexcluded but actually found some support within the Crown's own evidence. The combination of circumstances in the case was sufficient to raise suspicion, but suspicion does not meet the standard of proof beyond reasonable doubt. Because the Crown's case turned on the jury inferring that the appellant had physically touched the firearms, and because that inference depended substantially on DNA evidence whose integrity could not be confirmed, the convictions could not stand.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions quashed
  • Appellant directed to be released immediately

Key Takeaways

  • Where a Crown case is wholly circumstantial and DNA evidence forms a critical strand of proof, the Crown must exclude beyond reasonable doubt the reasonable possibility that the DNA reached the item through secondary transfer rather than direct handling.
  • A conviction for firearms possession requires proof that the accused knowingly had custody or control of the weapons, not merely that they were in close proximity to them or had access to a space where they were concealed.
  • CCTV footage showing a person accessed a concealed storage area, without any footage of them handling the specific items charged, does not alone establish the knowledge and control necessary for possession.
  • Forensic DNA evidence carries significant weight in circumstantial cases, but its probative value is undermined where police handling of items before testing creates documented pathways for contamination or secondary transfer.
  • The Court of Criminal Appeal confirmed the established principle, drawing on Fitzgerald v The Queen and Adams v R, that in a circumstantial DNA case the Crown must affirmatively exclude the reasonable possibility of innocent transfer.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Firearms Act 1996 (NSW) ss 7(1), 36(1), 66(1)(b)
- Weapons Prohibition Act 1998 (NSW) s 7(1)

Cases
- Fitzgerald v The Queen (2014) 311 ALR 158; [2014] HCA 28
- Adams v R [2018] NSWCCA 303