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District Court 26 October 2022

Pettersen v R

[2022] NSWDC 512

Firearms & weapons

Citation: Pettersen v R [2022] NSWDC 512
Court: District Court of New South Wales
Date: 26 October 2022
Judge: Scotting DCJ

Background

The appellant had been convicted at the Downing Centre Local Court of possessing a prohibited weapon, namely a soft armour vest, contrary to s 7(1) of the Weapons Prohibition Act 1998. The vest belonged to a third party, Tyrone Priest, who had stored it in a self-storage unit at Camperdown. The unit was rented in the appellant's girlfriend's name, but the appellant regularly accessed it and kept his own property there.

The prosecution's case turned on DNA evidence. A tape lift from inside the collar of the vest showed that the appellant could not be excluded as the major contributor to the DNA found there. The prosecution argued this demonstrated the appellant had handled the vest, establishing his knowledge of its presence in the unit. The appellant denied any knowledge of the vest and maintained that his DNA could have been transferred to the vest by police officers during the search.

The appellant exercised his right to appeal the conviction to the District Court, which conducted a rehearing on the certified transcripts and exhibits from the Local Court.

  • Whether the magistrate erred in rejecting the appellant's hypothesis that police officers inadvertently transferred his DNA to the vest during the search.
  • Whether the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence in a case resting substantially on circumstantial evidence.
  • Whether the conviction could be sustained on an independent review of the evidence by the District Court.

Decision

Scotting DCJ identified error in the magistrate's reasoning. The magistrate had rejected the DNA transfer hypothesis on the basis that, if a police officer had picked up the appellant's DNA on gloves from another item in the unit, that transfer should have left a detectable trace on the handles and zipper pulls of the bag, yet none was found. The magistrate treated the absence of DNA on the bag's exterior as effectively disproving the transfer theory.

The District Court disagreed. The prosecution's own expert, Ms Bate, had accepted under cross-examination that it was possible for a police officer to transfer the appellant's DNA to the vest without leaving a significant profile on the handles or zipper pulls. The expert described the scenario as "unlikely" rather than impossible, and that distinction mattered. An event that an expert acknowledges is possible cannot be characterised as beyond reasonable doubt excluded. The magistrate also failed to consider whether the police officer used different hands or fingers at different locations, or whether the DNA was picked up after the bag had already been opened.

On independent review of the whole of the evidence, Scotting DCJ concluded that the prosecution had not excluded all reasonable hypotheses consistent with innocence. The video of the search showed that Sergeant Scott handled multiple items in the unit before touching the vest, and that a second officer, Detective Senior Constable Redmond, also handled the vest shortly after it was removed from the bag. Critically, part of Sergeant Scott's movements after taking the vest into an adjacent hallway were not captured on video, leaving further room for inadvertent transfer.

Taking all of the evidence together, the District Court was satisfied that it was reasonably possible that the appellant's DNA reached the vest through police handling, not through any act by the appellant. On that basis, the conviction could not stand.

Orders Made

  • Appeal allowed.
  • The conviction and the penalty imposed by the magistrate were set aside.

Key Takeaways

  • In a circumstantial case, the prosecution must exclude all reasonable hypotheses consistent with innocence. An expert's description of an alternative explanation as "unlikely" does not amount to exclusion of that explanation as a reasonable possibility.
  • The District Court confirmed that, on a s 18 appeal under the Crimes (Appeal and Review) Act 2001, the appellate judge must demonstrate error in the lower court's reasoning before conducting an independent review of the evidence, but the prosecution's burden of proof beyond reasonable doubt remains throughout.
  • Where a magistrate's rejection of a defence hypothesis rests on a factual inference that the expert evidence does not fully support, that reasoning may constitute appellate error warranting intervention.
  • Gaps in video evidence of a police search, combined with multiple officers handling an exhibit, can contribute to a reasonable hypothesis of inadvertent DNA transfer that the prosecution must address.
  • Under s 4 of the Weapons Prohibition Act 1998, the extended definition of "possession" requires knowledge of the item's presence. Where that knowledge is proved solely through DNA evidence, the prosecution must account for alternative pathways by which that DNA could have been deposited.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Weapons Prohibition Act 1998 (NSW), ss 4, 7(1)

Cases:
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- R v Hillier (2007) 228 CLR 619
- The Queen v Baden-Clay (2016) 258 CLR 308