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District Court 11 August 2023

Khdeish v R

[2023] NSWDC 306

Theft & property

Citation: Khdeish v R [2023] NSWDC 306
Court: District Court of NSW
Date: 11 August 2023
Judge(s): Scotting DCJ

Background

The appellant was a former flatmate of the complainant, having shared a unit in Greenacre until approximately July 2019. On 11 October 2019, the complainant's unit was allegedly broken into while he was at work, with a substantial sum of cash said to have been stolen from beneath his bed. The complainant's account of the amount stolen was inconsistent across different statements, ranging from $20,000 to $65,000.

The prosecution case rested on circumstantial evidence. Two of the appellant's fingerprints were found on the bathroom windowsill, which the prosecution said was the point of entry. A neighbour also placed the appellant at the unit complex on the day of the alleged break-in. The appellant gave evidence in his own defence, denying involvement and offering an innocent explanation for his presence at the complex that day.

On 4 November 2022, the Magistrate at Bankstown Local Court convicted the appellant of break, enter and steal under s 112(1)(a) of the Crimes Act 1900. The appellant appealed to the District Court as of right.

  • Whether the Magistrate erred in finding the offence proven beyond reasonable doubt on the circumstantial evidence
  • Whether the complainant was a reliable witness
  • Whether the fingerprint evidence on the bathroom windowsill could be explained by the appellant's prior residence in the unit
  • Whether the forensic evidence supported a finding that the fingerprints were deposited during an unlawful entry through the bathroom window
  • Whether the appellant's presence at the complex on the day in question was sufficient evidence of guilt
  • Whether the appellant's own evidence raised a reasonable doubt

Decision

Scotting DCJ conducted a rehearing on the certified transcripts of evidence from the Local Court. The applicable standard required the appellate judge to form an independent view of the facts while recognising the Magistrate's advantage in seeing and hearing witnesses. The appeal could succeed only upon demonstration of factual, legal, or discretionary error.

The District Court found the complainant's evidence unreliable. The significant and escalating inconsistencies in the amounts the complainant said had been stolen, combined with the complainant's claim to have counted large sums of cash shortly before the theft, left the court in doubt as to whether a break-in had occurred at all.

On the fingerprint evidence, the court found that the appellant's former residence in the unit provided an innocent explanation for his fingerprints on the windowsill. The forensic evidence could not establish the age of the prints or the direction in which they were deposited, and no other fingerprints were found. The court declined to draw an inference that the prints were left during an unlawful entry, finding it much more likely they were deposited during the appellant's period of lawful occupation.

The neighbour's evidence that the appellant was at the complex on the relevant day added little weight to the prosecution case, given that the appellant regularly visited friends there after moving out. The court found that, even setting aside the appellant's evidence entirely, the prosecution case did not rise above suspicion and did not establish guilt beyond reasonable doubt. The appeal was allowed and the conviction set aside.

Orders Made

  • The appeal against conviction is allowed
  • The conviction and the penalty imposed by the Magistrate are set aside

Key Takeaways

  • The District Court found that circumstantial evidence pointing to a former resident's fingerprints at a crime scene carried limited weight where those prints were equally, and more plausibly, explained by the person's prior lawful occupation of the premises.
  • A conviction based entirely on circumstantial evidence requires that guilt be established beyond reasonable doubt; evidence that rises only to the level of suspicion is insufficient, even where aspects of a defendant's account are unsatisfactory.
  • Significant and escalating inconsistencies in a complainant's account of the amount stolen can undermine the reliability of the prosecution case to the point of casting doubt on whether the alleged offence occurred at all.
  • Under s 18 of the Crimes (Appeal and Review) Act 2001, an appeal to the District Court is a rehearing on the certified transcript, not a de novo trial. The appellate judge forms an independent view of the facts while acknowledging the trial magistrate's advantage in observing witnesses.
  • Where forensic evidence cannot establish the age or direction of deposit of fingerprints, and where no supporting forensic material (such as DNA) implicates the accused, those prints alone cannot bear the weight of a finding of guilt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gardiner v R [2023] NSWCCA 89
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298