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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Hasrouny  QCA 163
HASROUNY, Peter James
CA No 306 of 2019
Court of Appeal
Appeal against Conviction
District Court at Southport – Date of Conviction: 17 October 2019 (McGinness DCJ)
11 August 2020
14 May 2020
Holmes CJ and Morrison JA and Wilson J
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where a jury found the appellant guilty of one count of entering a premises with intent to commit an indictable offence, one count of armed robbery with personal violence and two counts of deprivation of liberty – where the case against the appellant was circumstantial – where the prosecution case relied entirely on DNA evidence – where the appellant’s DNA was found on items left at the scene of the robbery – where the appellant submits that his DNA was transferred to these items through the course of the conduct of his gardening business – where the appellant submits that the prosecution could not exclude a hypothesis consistent with innocence beyond reasonable doubt – whether an alternative hypothesis consistent with innocence arose fairly upon the evidence
Coughlan v The Queen (2020) 94 ALJR 455;  HCA 15, cited
M J Copley QC for the appellant
Legal Aid Queensland for the appellant
- HOLMES CJ: I agree with the reasons of Wilson J and with the order her Honour proposes.
- MORRISON JA: I have read the reasons of Wilson J and agree with those reasons and the order her Honour proposes.
- WILSON J: On 17 October 2019 at the Southport District Court, a jury found the appellant guilty of:
- (a)one count of entering premises with intent to commit an indictable offence;
- (b)one count of armed robbery with personal violence; and
- (c)two counts of deprivation of liberty.
- These offences arose from an armed robbery of the Currumbin Creek Tavern.
- For the most serious offences of entering premises with intent and armed robbery with personal violence, the appellant was sentenced to five years imprisonment suspended after two years with an operational period of five years. Lesser concurrent sentences were imposed for the two deprivation of liberty offences.
- The case against the appellant was circumstantial. To prove the identity of the offender, the prosecution’s case relied upon DNA evidence found on a number of objects left at the scene of the robbery. The prosecution had no case against the appellant without this DNA evidence.
- The appellant appeals his conviction on the basis that the jury’s verdicts of guilty were unreasonable. The appellant submits that on the whole of the evidence, it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt, because the prosecution could not exclude a hypothesis consistent with innocence beyond reasonable doubt.
- The appellant submits that the hypothesis consistent with his innocence is that his DNA had been transferred to some objects, subsequently used by the robber, during the course of the conduct of his gardening business.
Overview of the robbery
- In the early hours of 25 October 2009, Ms King and Mr Edwards were working at the Currumbin Creek Tavern when the offender entered through an unlocked door. The offender was holding an object that looked like, but was not, a pistol, which was created using two pieces of piping placed in an L shape, secured together with grey or silver duct tape.
- The offender’s face was covered with a cloth and neither Mr Edwards nor Ms King could see his face. Both Mr Edwards and Ms King described the offender as having a deep voice. Neither Mr Edwards nor Ms King recognised the offender.
- The offender yelled at Mr Edwards to get onto the floor. The offender dragged Ms King by her hair to where Mr Edwards was lying. The offender secured Ms King’s wrists and ankles with what Ms King called “zip ties”. Mr Edwards stated that a “cable tie” was secured to one of his wrists. The terms “zip ties” and “cable ties” are synonymous. Mr Edwards stated that he had thought the offender was wearing gloves as he could feel the material when the offender secured the cable tie on him; he did not know whether the offender’s gloves were made from canvas or leather material.
- The offender told Mr Edwards to get up from the floor and the offender pushed him towards a door to the upstairs area. Mr Edwards unlocked the door and the offender pushed Mr Edwards up the stairs towards an office area behind the kitchen. When asked to describe in more detail how he was directed from the downstairs bar up to the office area, Mr Edwards described being pushed to the downstairs door and then pushed up the stairs. However, at the top of the stairs, Mr Edwards described that “it sort of felt like he pushed me over there [to the office area], but I don’t know. I mean, it was 10 years ago. I could have been just saying or thinking to myself ‘Shit, I want this over. I need to get there straight away.’”
- The door to the office required a PIN code, which Mr Edwards entered successfully after a couple of attempts. After the door opened, Mr Edwards said to the offender, “Look, the safe’s over there.” The offender told Mr Edwards to empty the safe. Mr Edwards put the money in the bag the offender had provided. When the bag broke, the offender had Mr Edwards put the money in an office bin. Mr Edwards was told to lie down and the offender bound Mr Edward’s ankles with tape and his wrists with a cable tie. The offender then put tape around Mr Edward’s head and, as he was doing so, he gave Mr Edwards a “good couple of whacks on the left-hand side of the face”.
- Ms King called 000. When the police arrived they untied Ms King by cutting plastic cable ties and silver electrical or gaffer tape. Mr Edwards had managed to free himself from the upstairs office.
- Police found a number of items left behind by the offender, including the fake pistol located in the downstairs area near the bar. Police also found cable ties and duct tape in the downstairs bar and the upstairs office areas. DNA profiles were successfully taken from each of these items.
- No one was charged with these offences until police obtained a DNA reference sample of the appellant in June 2016 and he was subsequently charged.
- The prosecution case relied substantially upon DNA evidence supplemented by:
- (a)The offender’s alleged familiarity with the location of the tavern’s safe;
- (b)The offender’s knowledge of which of the two employees would have the means of accessing the safe; and
- (c)An alleged correspondence of tattoos between the offender and the appellant.
- The appellant gave evidence at trial and denied he was the offender. The appellant’s evidence was that since 2001 or 2002, he would go to the tavern at least three times a week. He also stated that he owned three hydroponic shops in 2009, two in Sydney and one in Burleigh Heads, which sold a number of horticultural supplies including gloves, duct tape and cable ties. The appellant stated that in 2009 his voice had been higher in pitch compared to his voice at the time of the trial, due to an injury he had sustained prior to the trial.
- At the trial, the prosecution called Mr McNevin, a forensic scientist with the Queensland Health Forensic and Scientific Services, to give evidence. Mr McNevin explained that DNA is a chemical found in almost all cells in the human body. The vast majority of human DNA is the same between humans, but some differences between humans occur. The sections of DNA that differ are the sections examined by forensic science, because it is extremely rare for people, other than identical twins, to have the same DNA profile.
- Scientists can compare a person’s DNA, provided as a reference sample, with DNA profiles recovered from objects in order to investigate whether the two profiles contain the same components of DNA. If the samples do contain the same components of DNA, scientists generate a statistical figure to determine how frequently or infrequently one would expect to see that DNA profile in the general population.
- A mixed DNA profile occurs when a DNA sample contains more than one person’s DNA. In such circumstances there may be a major and minor profile. The major profile describes the profile of the person who has contributed more DNA to the sample, and the minor profile describes the person who has contributed less DNA.
- A person can transfer DNA by touching an object or by sneezing or breathing near it. This is defined as primary or direct transfer. A person can also transfer DNA to an object by shaking hands with another person who then touches an object. This is defined as secondary transfer. If a third person touches this object and picks up DNA that has been transferred via secondary transfer, this is defined as tertiary transfer.
- DNA testing cannot determine whether DNA came to be deposited onto an object via primary, secondary or tertiary transfer.
- How much of a person’s DNA is transferred to an object depends on many factors, including the nature of the surface, how sweaty a person’s hands are and how recently a person has washed their hands. Longer contact with an object by a person may lead to the deposit of more DNA. DNA transferred to an object can degrade, however no evidence was given at the trial as to how long this process can take.
- To obtain DNA profiles from the items found in the tavern, police used a DNA tape lift or a DNA swab. A DNA tape lift involves dabbing a piece of tape, similar to sticky tape, on the sample area. A DNA swab involves using a long stick, like a cotton bud, dampened with ethanol and rubbed over the sample area.
- The police found incomplete DNA profiles that matched the appellant (to various degrees of probability) on five items:
- A portion of glove attached to a piece of tape found when police deconstructed the fake pistol by winding back the tape;
- The trigger guard of the fake pistol;
- A portion of glove attached to duct tape found on a table in the downstairs bar area;
- Cable ties found on the floor tiles of the upstairs office area; and
- Cable ties found on the carpet of the upstairs office area.
A portion of glove attached to duct tape found when police deconstructed the fake pistol
- The fake pistol was located on the customer side of the tavern’s downstairs bar area. A crime scene police officer, who had deconstructed the fake pistol by winding back the duct tape, discovered what appeared to be a piece of a glove on the adhesive side of the duct tape. This item was also described during the trial as a ‘possible piece of glove’.
- The jury were provided photographs of the possible glove piece, however there was no direct evidence that this item was from an actual glove.
- The swab taken from this possible glove piece yielded an incomplete DNA profile that matched the appellant’s DNA profile. There was a one in 130 billion probability that this incomplete DNA profile had come from someone other than the appellant.
- A police officer who attended the tavern on the night of the offences noted that the tape used to make the fake pistol “appeared to be fashioned out of similar sort of tape as [...] what the victim [Ms King] was bound with.”
The trigger guard of the fake pistol
- A crime scene police officer swabbed the outside and inside area of the trigger guard of the fake pistol. The trigger guard appeared to be made from black plastic.
- Police obtained an incomplete DNA profile from this sample, which matched the corresponding DNA components in the reference profile obtained from the appellant. There was a one in 260 million probability that this incomplete DNA profile had come from someone other than, and unrelated to, the appellant.
A portion of glove attached to duct tape found in the downstairs bar area
- Police located and swabbed a piece of possible glove on the adhesive side of the unwound duct tape. During the trial this item was also described as a ‘possible piece of glove’ or ‘what appeared to be a piece of glove’. There was no direct evidence that this item was from an actual glove. Police took a swab from this possible glove piece, which yielded an incomplete DNA profile that matched the appellant’s DNA profile.
- There was a one in 1.1 billion probability that this DNA profile had come from someone other than, and unrelated to, the appellant.
Cable ties found on the floor tiles in the upstairs office area
- Police took a DNA swab of cable ties found on the floor tiles in the tavern’s upstairs office. Scientists obtained a mixed DNA profile, which indicated the presence of DNA from two contributors. It was assumed that as Mr Edwards was bound with the cable ties that he had contributed to this DNA profile.
- There was a one in 1100 probability that the remaining partial of DNA had come from someone other than, and unrelated to, the appellant.
Cable ties found on the carpet in the upstairs office area
- Police took a DNA swab of cable ties found on the carpet in the upstairs office area. Scientists obtained an incomplete DNA profile from this sample, whichmatched the corresponding DNA components in the reference profile police had obtained from the appellant.
- There was a one in 30 billion probability of this incomplete DNA profile coming from someone other than, and unrelated to, the appellant.
The appellant’s hydroponic shop
- The appellant’s counsel at trial invited the jury to accept that in cases where the results presented probabilities in the millions or billions, then they would probably accept that the DNA profile found was the appellant's.
- The hypothesis consistent with innocence proposed by the appellant was that his DNA had been transferred to some objects, subsequently used by the offender, during the course of the appellant’s conduct of his gardening business.
- The appellant owned three hydroponic supply outlets, including one at Burleigh Heads which started in 2009 and traded as ‘Hydro Demon’. The appellant stated that after he moved to the Gold Coast he predominantly worked in the Burleigh Heads shop. No evidence was given as to when the appellant moved to Burleigh Heads. However, the appellant gave evidence that he started the Burleigh Heads business in “Nine ‘09”. It is unclear whether this statement refers to September 2009, or the year 2009 more generally.
- The appellant stated that the Burleigh Heads shop sold horticultural supplies including plant foods, chemicals, diameters of irrigation and PVC piping, fertilisers, gloves, cable ties and duct tape. The prosecution did not challenge this evidence.
- In relation to gloves, the appellant stated that his shop sold three types of gloves. His evidence as to the types of gloves sold at his shop was brief:
“There was a rubber type for the heavy chemical. There was another type for the horticultural touching of the – the hard stuff, and there was a latex type for the lighter chemicals, like – like the fertilisers and stuff.”
- Neither the appellant’s counsel nor the prosecution showed the appellant the photos of the possible glove fragments where the appellant’s DNA was found. There was no evidence linking the possible glove pieces found at the scene with the types of gloves the appellant sold in his shop.
Cable ties and duct tape
- The appellant stated that his horticulture shop sold cable ties. The totality of the appellant’s evidence in relation to cable ties was very brief:
“Did the store sell cable ties?---Yes.
And what were they used for?--- Tying plants up to the stakes or tying anything, really.”
- Neither the appellant’s counsel nor the prosecution showed the appellant the photographs of the cable ties the police had found in the tavern to identify whether they were the same type of cable ties that he sold in his shop. There was no evidence whether the appellant sold cable ties in packets or individually.
- The appellant also stated that his shop sold a plastic type of duct tape.
The appellant handled most of the shop’s products
- The appellant had one employee who was a quadriplegic and could not use his hands properly. As a result, the appellant handled most things that needed to be handled or individually counted in the shop. Only the appellant or his employee, when the appellant was not at the shop, worked at the counter.
- The appellant stated that his wife would occasionally visit and work in the shop. The appellant’s children would help him stock the shelves and the appellant’s friends also sometimes helped him. However, the appellant stated that 90 per cent of the time he was the person who handled the shop’s stock.
- The appellant stated that his shop also sold different diameters of irrigation piping.
Tattoos and CCTV footage
- The prosecution tendered CCTV footage of the tavern during the robbery, which included stills prepared from that footage. One still photograph may have shown some black markings on the back of one of the offender’s hands. This was a blurry image at best.
- During cross-examination of the appellant, the prosecution noticed that the appellant had some tattoos on the back of his hands.
- The prosecution then asked the jury to consider one still from the CCTV footage and consider whether the markings seen on the offender’s hands ‘could be’ tattoos. This was relevant as the appellant had also had tattoos on the back of his hands in 2009.
- In summing up, the trial judge said that it was a matter of “what weight you give to that.”
- The link between the tattoos on the back of the appellant’s hand to a blurry image of undefined black markings on the back of one of the offender’s hands is tenuous; this evidence was of little, or no, probative value.
Offender’s familiarity with the tavern
- At trial, the prosecution submitted that the appellant had attended the tavern regularly. Therefore, it was open for the jury to conclude that the appellant would understand and know the layout of the tavern. The prosecution submitted that the offender appeared to know the layout of the tavern. The offender also appeared to already know where the safe was located, and to know that Mr Edwards would have a key to the upstairs area of the tavern, the pin code to the office door and access to the safe.
- When the prosecution asked Mr Edwards to describe in more detail how the offender directed him from the downstairs bar up to the office area, Mr Edwards described the offender pushing him to the downstairs door and pushing him up the stairs. Mr Edwards stated that at the top of the stairs, “it sort of felt like he pushed me over there [to the office], but I don’t know. I mean, it was 10 years ago. I could have just been saying or thinking to myself ‘Shit, I want this over. I need to get there straight away.’
- However, this is not overly compelling evidence linking the appellant with the offender, as the offender’s alleged familiarity with tavern procedures and staff responsibilities could be explained by the fact that:
- (a)Any person intending to rob an establishment at closing time could simply assume that those employees would be familiar with where money was kept and the means of accessing it;
- (b)The offender had a 50 per cent chance of correctly selecting the employee more likely to be able to assist him, and this could easily have been based on that employee’s gender rather than prior knowledge of that employee’s role;
- (c)Mr Edwards told the offender the safe was in the office, and Mr Edwards conceded he may have led the offender to that locked door without being pushed towards it; and
- (d)Regardless, prior knowledge could have been gained by anyone who attended the tavern often.
The offender’s deep voice
- The appellant places weight on the fact that Ms King knew the appellant and his distinctive voice, but that she had stated that she didn’t recognise the offender or his voice.
- Mr Edwards and Ms King described the offender as having a deep voice.
- Both Mr Edwards and Ms King knew the appellant as a patron of the tavern. Ms King also knew the appellant because their children were friends. Ms King stated she was familiar with the appellant’s voice, gait, build and mannerisms. Occasionally, she states, the appellant spoke with a distinctively high pitched voice. Ms King stated that she would be able to recognise the appellant’s voice because it was fairly unique, and that she would be able to pick it out of a crowd.
- During the course of the armed robbery, Ms King heard the offender’s voice when he was yelling and talking to Mr Edwards. It is clear that despite knowing the appellant and being able to pick the appellant’s distinctive high pitched voice out of a crowd, Ms King didn’t recognise the offender or his voice.
- The appellant gave evidence that he had previously had a higher pitched voice in 2009, and that a couple of years before the trial his voice box had been damaged. This injury had made his voice gravelly and lower in pitch.
- However, the opportunity for Ms King to recognise the offender’s voice was during the frightening experience of an unexpected and violent armed robbery. Ms King could not recall what the offender was saying. When the police arrived at the tavern following the robbery, Ms King was described as being upset almost to the point of hysterical.
- This was a circumstantial case that relied upon DNA evidence to prove that the appellant was the offender.
- An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case requires the appellate court to weigh up all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt had been proven beyond a reasonable doubt. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.
- In R v Baden-Clay (2016) 258 CLR 308, it was held that:
“ For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”
- The prosecution had no case against the appellant without the DNA evidence. The real issue in this trial was not whether it was the appellant’s DNA profile found on items used by the offender, but whether there was a reasonable hypothesis, consistent with innocence, as to why his DNA profile was found on these items. The issue of particular interest in this appeal, as the learned trial judge directed the jury, is whether:
“[...] the defendant’s DNA was not directly transferred by some innocent means to the objects, for example, did another person who was the offender obtain the tape, ties and gloves from the defendant’s gardening business?”
- The appellant makes no complaint about the trial judge’s directions to the jury. The appellant states that the jury were correctly directed that before reliance could be placed on the presence of DNA profiles matching the appellant’s, the jury had to be satisfied beyond reasonable doubt that such presence was not the result of the appellant innocently touching the objects whilst selling them in his business. The appellant submits that it was not possible to conclude that this was so beyond a reasonable doubt.
- The appellant submits that the presence of his DNA profile found on the items used by the offender can be explained by:
- (a)The appellant’s unchallenged and un-contradicted evidence that he handled and sold cable ties, gloves and duct tape; and
- (b)Evidence from a forensic scientist that DNA can be deposited on objects in a number of ways, including by primary or secondary transfer.
- Accordingly, the appellant submits that such evidence raises a reasonable hypothesis consistent with his innocence.
- The appellant’s counsel stated that the trigger guard could be a component of something to do with irrigation, or that the appellant’s DNA could be on this item due to a secondary transfer:
“MR COPLEY: Well, if his DNA was on cable ties or it was on PVC piping and if you look at the picture of the weapon you can see that the diameter of the barrel gets narrower as it gets further from the stock, if his DNA was on that fairly, it’s possible, on the evidence, that his DNA was transferred by the manufacturer of the pretending gun on to what we call the trigger guard. That’s just a possibility that remains open on the evidence. So that perhaps should have been the answer I should have given a little earlier.”
- In Fitzgerald v The Queen, a group of men forced their way into a house and attacked two of the occupants. One of the occupants died four days later and the other sustained serious brain injuries. Police found the appellant’s DNA on a didgeridoo at the crime scene. The prosecution relied on this evidence to establish that the appellant was present in the offending group.
- An important issue in Fitzgerald v The Queen, as in this case, was not whether there was a match between the defendant’s DNA and a DNA sample, but rather when and how the appellant’s DNA was transferred to the didgeridoo. In Fitzgerald v The Queen, the prosecution did not contest that there were at least two distinct occasions on which a secondary transfer of the defendant’s DNA to the digeridoo may have occurred. The High Court, in allowing the appeal and quashing the conviction, stated:
“ […] Alternative hypotheses consistent with the appellant’s innocence, in particular the hypothesis that Sumner transferred the appellant’s DNA to the didgeridoo on Sumner’s first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them.”
- In Fitzgerald v The Queen, the High Court found that it was reasonably open on the evidence to link the defendant’s DNA transfer to at least two distinct occasions in which a secondary transfer of the defendant’s DNA onto the digeridoo may have occurred. There is no such particularity in this case.
- In my view, the possibility raised by the appellant of how the appellant’s DNA profile was found on objects used by the offender is not reasonable; it is based on conjecture and speculation.
- An alternative hypothesis to explain a circumstantial case must arise fairly upon the evidence. The appellant’s hypothesis is that his DNA was transferred to some objects, subsequently used by the offender, during the course of his gardening business. Further, the appellant submits that he may not have had direct contact with these items, and a secondary transfer of the appellant’s DNA may have occurred when an item used by the offender touched an item previously handled by the appellant in his shop. The appellant’s hypothesis is premised upon the offender obtaining the duct tape, ties or gloves from the appellant’s gardening business.
- The unchallenged evidence was that the appellant sold cable ties, gloves and duct tape. However, this evidence was only of a very general nature as to the products that the appellant sold and handled at his shop. The appellant was not shown any photographs to identify whether the possible glove pieces, the cable ties or the duct tape found in the tavern were the same as, or even similar to, products that he had contact with at his shop. It was left for the jury to speculate that they were the same.
- Further, there was no evidence that the items described as possible glove pieces were from an actual glove. The appellant, in his written outline, fairly describes these items as “from what may have been a portion of glove”. Photographs of these items were tendered and before the jury. There was no direct evidence that the items photographed were from an actual glove, let alone a glove which the appellant sold. In the circumstances of this case, there was no evidence or reasonable inference open to found such a link; to do so would involve conjecture and speculation.
- The issue of secondary transfer would be open if the applicant sold any one of the items found at the tavern. In my view, the appellant’s hypothesis that the tape, cable ties or gloves used by the offender were from the appellant’s gardening business is based upon speculation. The appellant’s hypothesis, that the appellant had transferred his DNA (whether by primary or secondary transfer) to some objects used by the offender during the course of the appellant’s business does not fairly arise upon the evidence.
- In my view, when all of the circumstances established by the evidence are considered and weighed, and not in a piecemeal fashion, there is no inference consistent with innocence that was reasonably open on the evidence. The inference of guilt is the only reasonable inference open upon a consideration of all the facts and evidence. Accordingly, the appeal should be dismissed.
- The appeal should be dismissed.
- Published Case Name:
R v Hasrouny
- Shortened Case Name:
R v Hasrouny
 QCA 163
Holmes CJ, Morrison JA, Wilson J
11 Aug 2020