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Court of Criminal Appeal 22 November 2022

Abraham v R

[2022] NSWCCA 242

Firearms & weapons
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT POSSESSION OF FIREARMS CIRCUMSTANTIAL CASE

Citation: Abraham v R [2022] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 22 November 2022
Judge(s): Brereton JA (principal judgment); Wilson J and Cavanagh J (agreeing)

Background

The appellant operated a café/restaurant in New South Wales. In August 2017, police executing a search warrant at the premises discovered a locked wall cavity in an upstairs storage room. Inside the cavity was a white plastic bucket labelled "pickled cucumbers," which contained three unregistered handguns (one of them defaced), two detachable ammunition magazines, ammunition, socks, and towels. Neither the appellant nor his co-accused held a firearms licence.

The appellant's DNA and that of his co-accused were detected on the bucket and on some of the firearms. CCTV footage captured the appellant retrieving the bucket from the storage hatch on the evening of 2 August 2017, taking it briefly to his office where three other men were present, and then returning it to the hatch. The footage also showed the co-accused attending the hatch the following day carrying a separate yoghurt bucket.

A central issue at trial was whether the DNA evidence was reliable. The police officer who conducted the search did not change his gloves between touching surfaces such as doorknobs and then handling the firearms, raising the possibility that DNA had been transferred from those surfaces to the items in the bucket ("secondary transfer"). Both accused were convicted by the jury. The co-accused subsequently succeeded in a separate appeal, with the Court of Criminal Appeal finding that the possibility of secondary DNA transfer had not been excluded in his case. The appellant sought leave to appeal on substantially the same ground.

  • Whether the verdict against the appellant was unreasonable or unsupported by the evidence, given the possibility that his DNA reached the firearms through secondary transfer during the police search.
  • Whether the statutory presumption of possession under section 4A of the Firearms Act 1996 (NSW), which applied to the firearms charges by reason of the appellant's occupation of the premises through his business, was rebutted on the evidence.
  • Whether, in the absence of that presumption (which did not apply to the magazine charges), the jury could nevertheless be satisfied beyond reasonable doubt of the appellant's guilt on the magazine counts.
  • Why the outcome of the appellant's appeal differed from that of the co-accused, despite the appeals raising substantially the same ground.

Decision

Secondary transfer of DNA, considered in isolation. Brereton JA accepted that if the Crown's case had rested on the DNA evidence alone, the reasonable possibility of secondary transfer would not have been excluded, and a reasonable doubt would have remained. However, the court emphasised that DNA was not the only circumstance pointing to guilt. Evidence in a circumstantial case must be assessed as a whole, not evaluated piece by piece, and the DNA formed only one strand in a broader web of evidence.

Firearms charges and the section 4A presumption. Under section 4A of the Firearms Act, an occupant or lessee of premises on which firearms are found is presumed to possess them, unless the accused proves on the balance of probabilities that they did not know, and could not reasonably be expected to have known, of the firearms' presence. The appellant's explanation at trial was that there had been multiple buckets in the storage hatch, so the bucket he was seen placing in the hatch may not have been the one containing the firearms. Brereton JA found that the evidence made this version of events impossible to accept. The appellant therefore failed to discharge the reverse onus, and the jury was entitled to convict on the firearms counts.

Magazine charges (no presumption). Section 4A did not apply to the prohibited weapon charges concerning the magazines. On those counts, the only hypothesis consistent with innocence required the court to accept an accumulation of improbabilities: that the appellant had placed a bucket containing no firearms into the hatch; that the co-accused had later placed the firearms and magazines into the bucket; and that the appellant's DNA had then been transferred onto the items by secondary transfer during the search. Brereton JA held that the combination of events required by that hypothesis was so improbable as to be irrational, and the jury was entitled to be satisfied beyond reasonable doubt of guilt on those counts as well.

Overall conclusion. Upon the Court of Criminal Appeal's own independent assessment of all the evidence, no reasonable doubt existed that ought to have been entertained by the jury. The distinguishing feature from the co-accused's successful appeal was the operation of section 4A and the additional, non-DNA circumstantial evidence implicating the appellant, which placed the two cases in materially different evidentiary positions.

Orders Made

• The appeal should be dismissed

Key Takeaways

  • In a circumstantial case, DNA evidence is not assessed in isolation. The Court of Criminal Appeal confirmed that all circumstances must be considered together, and a gap in one strand of evidence does not automatically produce a reasonable doubt if the remaining evidence is sufficiently compelling.

  • Under section 4A of the Firearms Act 1996 (NSW), an occupant or lessee of premises where firearms are found is presumed to possess those firearms. The accused bears the onus of proving, on the balance of probabilities, that they did not know and could not reasonably have been expected to know of the firearms' presence.

  • A co-accused's successful appeal does not guarantee the same outcome for a jointly tried accused. Differences in the applicable statutory framework and in the circumstantial evidence can place the two accused in materially different positions, even where the same general ground of appeal is raised.

  • Where the only hypothesis consistent with an accused's innocence rests on an accumulation of highly improbable events, a jury is entitled to reject that hypothesis and convict beyond reasonable doubt, even on counts to which no statutory presumption applies.

  • The secondary transfer of DNA during a police search remains a live issue in firearms possession cases, but its significance depends on what other evidence exists. Where other circumstances independently implicate the accused, the secondary transfer argument may not produce a reasonable doubt when the evidence is assessed as a whole.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Firearms Act 1996 (NSW), ss 4A, 7, 36, 66
- Weapons Prohibition Act 1998 (NSW), s 7

Cases
- Seifeddine v R [2021] NSWCCA 214
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALR 728
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Barca v R (1975) 133 CLR 82; [1975] HCA 42
- De Silva v R (2019) 268 CLR 57; [2019] HCA 48
- Liberato v R (1985) 159 CLR 507; [1985] HCA 66
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Atai v R [2014] NSWCCA 210
- May v R [2012] NSWCCA 250
- Frew v R [2022] NSWCCA 165