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Court of Criminal Appeal 9 September 2026

Pagliari v R

[2026] NSWCCA 133

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CIRCUMSTANTIAL CROWN CASE

Citation: Pagliari v R [2026] NSWCCA 133
Court: Court of Criminal Appeal
Date: 9 September 2026
Judge(s): Price AJA (principal judgment); Cavanagh J (agreeing); Rigg J (agreeing)

Background

The applicant was convicted by a jury in the District Court of aggravated break and enter a dwelling house and commit a serious indictable offence, namely intimidation, contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment, with a standard non-parole period of five years. He was sentenced to four years and seven months imprisonment, with a non-parole period of two years and eight months.

The Crown's case centred on events at a Kingsgrove home on 14 July 2022. CCTV footage from a neighbouring property showed three men arriving by car. The Crown alleged the applicant and a co-offender kicked open the front door and entered the home, where two children aged 12 and 13 were present. Both intruders searched the house asking for a person named "Jeremy," who did not live there, before leaving and apologising to the children.

The Crown's case against the applicant was entirely circumstantial. The key physical evidence was a Toohey's New beer can discarded on the grass verge outside the home, which police recovered four days later. A partial DNA profile recovered from the mouthpiece of that can matched the applicant's profile. The sole ground of appeal was that the jury's verdict was unreasonable.

  • Whether, having independently assessed the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was the second man depicted in the CCTV footage.
  • Whether any reasonable hypothesis consistent with the applicant's innocence could explain the presence of his partial DNA profile on the mouthpiece of the discarded beer can.
  • Whether the verdict of guilty was unreasonable within the meaning of the Criminal Appeal Act 1912 (NSW).

Decision

The unreasonable verdict ground: The Court granted leave to appeal but dismissed the appeal unanimously. All three judges conducted independent assessments of the whole of the evidence, as required by the applicable standard from M v The Queen (1994) 181 CLR 487 and confirmed in subsequent High Court authority including The King v ZT (2025) 281 CLR 137. Each judge concluded it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

Identity via CCTV: The Court found it was open to the jury to conclude that the second man depicted exiting the car, who drank from and then discarded the beer can before running toward the front door, was the applicant. This finding rested on the CCTV footage together with the DNA evidence. The applicant did not dispute the footage existed or what it showed; the contest was over whether he was the man shown.

The DNA evidence: The Court found there was no reasonable hypothesis consistent with the applicant's innocence to explain the presence of his partial DNA profile on the mouthpiece of the can. Price AJA addressed this at length, and Cavanagh J agreed that no reasonable hypothesis inconsistent with guilt had been raised. Rigg J emphasised the significance of the DNA being located specifically on the mouthpiece, noting that had it been found on another part of the can, the high standard of proof beyond reasonable doubt may not, in his Honour's view, have been met. The location of the DNA on the mouthpiece was therefore critical to the result.

Children's evidence: Rigg J also addressed minor inconsistencies in the evidence of the two children regarding the number of people at the scene, finding those inconsistencies did not undermine the verdict. One child's vague observation about "probably three other guys" in the car, and the other child's evidence of four people at the house, were either explicable by the brevity and distance of the observations or were inconsistent with the CCTV footage in a way that did not raise a reasonable doubt.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • In a circumstantial Crown case, the Court of Criminal Appeal confirmed it is required to independently assess the whole of the evidence when determining whether a verdict is unreasonable, applying the test in M v The Queen and subsequent High Court authority.
  • No reasonable alternative hypothesis consistent with innocence existed where the applicant's partial DNA profile was recovered specifically from the mouthpiece of a beer can shown on CCTV to have been drunk from and discarded by a man at the scene.
  • Rigg J's concurring reasons highlight that the precise location of DNA on an exhibit can be determinative: DNA on a surface that necessarily contacts a user's mouth carries significantly greater inferential weight than DNA found elsewhere on the same object.
  • Minor inconsistencies in witness evidence about peripheral matters, such as the number of people seen at a scene, do not necessarily raise a reasonable doubt where the inconsistencies are explicable and the core evidence is otherwise compelling.
  • A circumstantial case built on CCTV footage plus DNA from a discarded item can, in appropriate circumstances, be sufficient to support a conviction beyond reasonable doubt even where no witness directly identifies the accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 32, 38

Cases
- Belhaven and Stenton Peerage (1875) 1 App Cas 278
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
- Futcher v R [2025] NSWCCA 102
- Jha v R [2026] NSWCCA 55
- Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
- Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170
- LS v R [2024] NSWCCA 110
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Quinn v R [2023] NSWCCA 229
- Reyne (a pseudonym) v R [2022] NSWCCA 201; (2022) 302 A Crim R 297
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1