Citation: Camara v R [2021] NSWDC 317
Court: District Court of New South Wales
Date: 15 July 2021
Judge: Haesler SC DCJ
Background
The tenant of a factory in Cringila, NSW returned on 31 August 2019 to find the premises had been broken into, the gate removed from its hinges, and tools and equipment worth approximately $5,000 stolen. A Crime Scene Officer found a large shifting spanner near the gate, which the tenant identified as his own property from inside the shed. No fingerprints were recovered from the spanner or elsewhere at the scene.
A DNA tape-lift taken from the spanner's handle was sent to the NSW Forensic and Analytical Science Service (FASS) for analysis. When the appellant was later arrested, he provided a buccal swab. The FASS analyst's report concluded that the appellant was the major contributor to a mixed DNA profile recovered from the spanner, with the result being more than 100 billion times more likely if the DNA came from him than from an unrelated individual.
The appellant was convicted of break, enter and steal under s 112(1)(a) of the Crimes Act 1900 (NSW) in the Local Court, and sentenced to imprisonment. He appealed his conviction to the District Court, denying any involvement and suggesting that his motorcycle gloves, which had gone missing from a nearby address before the break-in, may have been used by whoever committed the offence.
Legal Issues
- Whether the DNA evidence was sufficient, on its own, to prove beyond reasonable doubt that the appellant was present at and participated in the break, enter and steal
- Whether the prosecution had excluded, as a reasonable possibility, that the appellant's DNA reached the spanner through secondary or indirect transfer rather than through direct criminal participation
- Whether the appellant's alternative explanation for the presence of his DNA, namely transfer via stolen gloves or contact with persons at a nearby premises, was a hypothesis consistent with innocence that the prosecution was required to exclude
Decision
Haesler SC DCJ approached the case as a rehearing on the Local Court evidence, drawing his own inferences while remaining alert to the appellate court's natural limitations. He confirmed that the DNA statistical evidence, while powerful, was not direct evidence that the appellant touched the spanner. It formed part of a circumstantial case that had to be considered alongside all other evidence, including the prosecution's obligation to exclude reasonable alternative hypotheses.
The court applied the principle from the High Court's decision in Fitzgerald v The Queen [2014] HCA 28, which held that DNA evidence must be assessed in the context of alternative hypotheses consistent with innocence, particularly the possibility of secondary or indirect transfer. The court drew attention to statements in the FASS annexure itself acknowledging that DNA can be transferred directly or by an intermediary, that transfer and persistence are affected by factors not fully understood, and that secondary transfer among people in social or household contact must be considered a reasonable possibility.
The appellant had given evidence that, in the weeks before his arrest, he had regularly visited a friend's premises in Merrett Avenue, which runs behind the Five Islands Road factory. He said he had left motorcycle gloves and other items there, which were subsequently stolen. Although the Magistrate had rejected the appellant's evidence as not credible, the District Court found there was no basis to entirely reject the possibility that someone wearing the appellant's gloves, or someone who had had physical contact with him, had touched the spanner.
Because those secondary transfer possibilities had not been excluded by the prosecution as reasonable hypotheses, the DNA match alone was insufficient to establish beyond reasonable doubt that the appellant was a participant in the break-in. The appeal was upheld and the conviction set aside.
Orders Made
- The appeal is upheld
- The conviction is set aside
Key Takeaways
- A DNA profile match, even with an overwhelming statistical likelihood ratio, does not constitute direct proof of presence at a crime scene. It remains part of a circumstantial case and must be weighed against all other evidence and reasonable alternative explanations.
- The prosecution bears the onus of excluding, as a reasonable possibility, that an accused's DNA reached an exhibit by chance, contamination, secondary transfer, or direct but innocent contact. That onus does not shift to the accused.
- Where the DNA laboratory's own annexure acknowledges limited understanding of transfer and persistence mechanisms, and that secondary transfer among socially connected individuals should be treated as a reasonable possibility, those concessions can support an inference of innocence.
- The District Court found that an accused's account of how his DNA might have reached an exhibit need not be fully accepted or even fully recalled to raise a hypothesis consistent with innocence. A plausible explanation, not conclusively rejected, may be enough to prevent the prosecution case from reaching the required standard.
- In applying Fitzgerald v The Queen, the court confirmed that alternative hypotheses consistent with innocence need only be reasonable, not proved. The prosecution's failure to address and exclude them is a deficiency in the prosecution case, not a matter for the accused to overcome.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 19, 20
- Evidence Act 1995 (NSW), s 144
Cases
- Fitzgerald v The Queen [2014] HCA 28
- The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618
- Plomp v The Queen (2007) 228 CLR 618
- Charara v The Queen (2006) 164 A Crim R 39
- Bryon v R [2015] 2 CrAppR 21
- Grant v R [2008] EWCA Crim 1890
- Ogden v R [2013] EWCA 1294
- R v FNC [2016] 1 Cr AppR 13
- Tsekiri v R [2017] EWCA Crim 40