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District Court 10 March 2025

R v Haouchar

[2025] NSWDC 47

DrugsFirearms & weaponsPublic order & justice offences
JUDGE ALONE TRIAL JOINT CRIMINAL ENTERPRISE CIRCUMSTANTIAL CASE DEFENCE CASE OF “TRANSFERENCE” VERDICTS OF GUILTY AND NOT GUILTY.

Citation: R v Haouchar [2025] NSWDC 47
Court: District Court of New South Wales
Date: 10 March 2025
Judge: Grant DCJ

Background

The accused stood trial before a judge alone on 13 counts relating to firearms, drugs, and participation in a criminal group. The charges arose from a police search of an unoccupied residential property at Yagoona in April 2021. Officers executing a search warrant found a collection of firearms, ammunition, and significant quantities of prohibited drugs including heroin, cocaine, methylamphetamine, and MDMA.

The property had been rented under a verbal agreement to someone identifying as "Scott Lauren" from January 2021, though rent payments had stopped in late February and the owner had cut off power by late March. The accused was not present when police attended. The prosecution's case was entirely circumstantial, relying principally on DNA and fingerprint evidence connecting the accused to various items recovered from the property.

The Crown alleged the accused participated in a joint criminal enterprise with another person, referred to in the judgment as Mr Ratel, to possess and store firearms and drugs at the property. The accused's defence did not challenge the DNA or fingerprint evidence itself but advanced a case of "transference," suggesting the forensic material could have been deposited on items through secondary contact rather than direct handling.

  • Whether the accused possessed firearms (including pistols and stolen firearms) found at the Yagoona property, either as principal or through joint criminal enterprise with Mr Ratel
  • Whether the accused possessed prohibited weapons (rifle magazines) found at the property
  • Whether the accused was engaged in the supply of prohibited drugs, including heroin, cocaine, methylamphetamine, and MDMA
  • Whether the accused participated in a criminal group, knowing it was a criminal group and knowing his participation contributed to criminal activity
  • Whether the transference explanation raised a reasonable doubt about the forensic evidence linking the accused to items at the property
  • Whether the presence of other persons' DNA and fingerprints at the property, combined with the absence of direct evidence linking the accused to specific items, was sufficient to break the chain of reasoning on particular counts

Decision

Grant DCJ accepted the forensic evidence as reliable, finding that the transference defence did not raise a reasonable doubt on counts where the accused's DNA or fingerprints were found directly on the relevant items. The judgment proceeded as a circumstantial case, applying the principle that guilt must be the only rational inference available from the whole of the evidence. The Crown's case succeeded on counts where the forensic connection between the accused and specific items was strong and direct.

However, the court drew careful distinctions between items. On the MDMA counts, no forensic evidence linked the accused or Mr Ratel to the MDMA found in freezer bags in kitchen cupboards. Although other items in the same kitchen were forensically connected to the accused, Grant DCJ declined to reason that the accused must therefore have been engaged in a joint criminal enterprise covering the MDMA. The court expressly noted that a safe house may be used at different times and for different purposes by different people, and that guilt cannot rest on suspicion alone.

The court also noted in its concluding remarks that a number of other named and unnamed individuals were forensically connected to the property. Grant DCJ found it was a reasonable possibility that some of those persons were engaged in their own separate criminal enterprise to use the property, independent of any enterprise involving the accused and Mr Ratel. That reasoning supported acquittals on counts where the Crown asked the court to treat the accused's presence in a broader criminal network as sufficient to establish guilt across all items found.

On the supply counts, the court returned mixed verdicts, convicting the accused on cocaine and methylamphetamine supply while finding him not guilty on heroin and MDMA supply. On Count 11 (heroin), the court returned an acquittal on the charged count but substituted a guilty verdict on the statutory alternative of deemed supply of a commercial quantity.

Orders Made

  • Count 1 (participation in criminal group): Not guilty
  • Count 2 (possession of more than three firearms including a pistol): Not guilty
  • Count 3 (possession of DENIX imitation pistol, alternative to Count 2): Guilty
  • Count 4 (possession of loaded Smith and Wesson revolver, alternative to Count 2): Not guilty
  • Count 5 (possession of loaded Harrington and Richardson Arms revolver, alternative to Count 2): Guilty
  • Count 6 (possession of loaded Heckler and Koch .45 pistol, alternative to Count 2): Guilty
  • Count 7 (possession of stolen Heckler and Koch .45 pistol): Guilty
  • Count 8 (possession of stolen Smith and Wesson .38 special revolver): Not guilty
  • Count 9 (possession of prohibited weapon, two metal rifle magazines): Not guilty
  • Count 10 (supply of heroin): Not guilty, but guilty of the statutory alternative of deemed supply of a commercial quantity
  • Count 11 (supply of cocaine at large commercial quantity): Guilty of supply of 188.5 grams
  • Count 12 (supply of methylamphetamine at indictable quantity): Guilty
  • Count 13 (supply of MDMA at commercial quantity): Not guilty

Key Takeaways

  • In a purely circumstantial case, a conviction requires that guilt be the only rational inference available from the whole of the evidence. The District Court demonstrated that principle in action by returning different verdicts on different counts, depending on the strength of the forensic connection to each specific item.

  • A joint criminal enterprise does not automatically extend to all items found at a shared location. Where no forensic evidence links an accused to a specific item, the court held it cannot simply infer involvement from proximity to other items that are forensically connected.

  • The presence of DNA and fingerprints from multiple other individuals at the same property was treated as supporting a reasonable possibility of independent criminal activity by others, capable of breaking the chain of inference on individual counts.

  • A transference defence (that DNA was deposited through secondary contact rather than direct handling) must raise a reasonable doubt on the specific evidence in question. Where direct forensic links existed to particular items, the court here found that the transference explanation fell short of that threshold.

  • Under the Drug Misuse and Trafficking Act 1985 (NSW), an acquittal on a principal supply count does not preclude a finding of guilt on the statutory alternative of deemed supply, as the court demonstrated in relation to the heroin count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T(1) (participation in criminal group)
- Firearms Act 1996 (NSW), ss 7(1), 51D(2), 51H(1)
- Weapons Prohibition Act 1998 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), s 191 (agreed facts)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Barker v The Queen (1975) 133 CLR 82
- Fleming v The Queen (1998) 197 CLR 250
- R v Markuleski (2001) 52 NSWLR 82
- The Queen v Baden-Clay (2016) 258 CLR 308
- Wiggins v The Queen [2020] NSWCCA 256