Pryce v QPS[2021] QDC 128

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   At a summary trial held on 26 November 2020 the appellant pleaded not guilty in the Magistrates Court held in Cairns to charge 2 of enter dwelling and steal property; charge 3 of enter dwelling and steal property, namely a phone and keys; charge 4 of unlawful use of motor vehicle without consent; and charge 5 of enter premises, and steal property, namely alcohol, by break.
2. [2]
   The prosecution’s case was entirely circumstantial and had its genesis in the appellant’s DNA on a torch. It contended that:

   1. (a)
      The defendant offended over several hours over the night of 16 to 17 December 2019.
   2. (b)
      He first entered a Machans Beach house and stole bottles of wine, a small torch, a crowbar and a jimmy bar (charge 2).
   3. (c)
      He then entered the neighbouring house and stole an iPhone and keys (charge 3) which were used to take a blue Toyota Corolla parked in the drive away (charge 4).
   4. (d)
      The defendant and two others then drove to Clifton Beach and used the crowbar to break into a bottle shop to steal $4200 worth of cigarettes and alcohol (charge 5).
   5. (e)
      The Corolla was found abandoned at Trinity Beach after a resident was disturbed by a man and a woman having a verbal argument before driving off in a white utility without lights.
   6. (f)
      The stolen torch was found on the front passenger seat of the abandoned Corolla. The stolen alcohol and crowbar were also found in the car. The jimmy bar was found at the bottle shop.
3. [3]
   Whilst the appellant accepted that someone committed the earlier offence, he argued that there was insufficient evidence to be satisfied beyond reasonable doubt, and further, that there were reasonable hypotheses consistent with innocence that could not be excluded.
4. [4]
   The learned Magistrate disagreed. He convicted the appellant on 18 December 2020 of each offence and he imposed concurrent sentences culminating in an effective 30 months of imprisonment with a parole release date set for 18 October 2021.
5. [5]
   The appellant now appeals his convictions on the grounds that they were unreasonable and/or cannot be supported on the evidence.
6. [6]
   The respondent, I think properly, concedes the appeal.
7. [7]
   There is no other reliable identification evidence such as DNA or fingerprints, eyewitness identification or CCTV footage, capable of implicating the appellant as being involved at various places and in various circumstances. On my review, considering all the facts in evidence, I am not satisfied beyond reasonable doubt of the defendant’s guilt as being the only rational inference or by excluding all other reasonable hypotheses. Instead, it seems to that the use of the appellant’s DNA to implicate him in the earlier offending, is no more than mere conjecture and speculation.
8. [8]
   Accordingly, after hearing the appeal, I made orders quashing the convictions, sentences and orders. I declined to return the proceeding for rehearing, but instead, I substituted acquittals and discharged the defendant in respect of each charge. These are my reasons for doing so.

Mode of appeal

9. [9]
   The appellant appealed pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to s 223 of the Act the appeal is by way of rehearing on the original evidence and any new evidence adduced by leave. No new evidence was adduced on appeal.
10. [10]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.^[1] Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the Magistrate’s view.^[2]

11. [11]
    For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”^[3]
12. [12]
    A verdict may be disturbed, if the appellant shows that the trial Magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.^[4] This necessitates my independent examination of the evidence, including credit of witnesses subject to what I have said above,^[5] to make my own assessment of both the sufficiency and quality of the evidence.^[6]

Evidence at trial

13. [13]
    Ian Robertson, the occupant of the house property subject of charge 2, gave evidence that he went to bed at about 9 or 10pm on 16 December 2019 and woke up at about 4am on 17 December 2019 when he discovered his house had been broken into. He testified that wine was taken from his fridge, “a little LED torch” about 10 cm long, red and waterproof, was taken from his kitchen bench, and a crowbar and a jimmy bar were taken from underneath his house. In cross-examination, he acknowledged that the torch did not have distinguishing features, engravings or markings on it. He positively identified the stolen items depicted in the photographs.
14. [14]
    It was undisputed that car keys, an iPhone 5 and the Corolla were stolen from the neighbouring property, subject of Count 3, sometime before 4 am while the owner was absent overseas. It was driven away from the property without the owner’s consent. (Count 4)
15. [15]
    Senior Constable Burnell testified that a large crowbar was located at the Clifton Beach Liquorland. CCTV evidence of about 2:56 am on 17 December 2019 showed a person forcing open the front door of a Liquorland Bottle Shop, and three people including one female entered stole trays of cigarettes and alcohol. (Count 5). A beige bucket hat had been seen on a person in the CCTV from the Liquorland. Two other persons of interest had been identified, namely, Mr Ori Maru and Mrs Charlotte Maru. He executed a search warrant at Mr Maru’s address and located a beige bucket hat consistent with the CCTV.
16. [16]
    Screenshots from Transport & Main Roads traffic cameras and from a camera at a house in Trinity Beach, were tendered. They showed a dark sedan and a white Nissan Navara utility at various locations on the highway, and Clifton Beach Road. Sergeant Pearson gave evidence that a white Nissan Navara utility was owned by Charlotte Maru.
17. [17]
    Byron Martin who lived at Trinity Beach, was woken up by a “loud commotion outside” at about “three or the past three in the morning”. He saw “two people, male and female, fighting swearing at each other” and then he stood on his bed and yelled out to them, and they started swearing at him and throwing beer cans. He was concerned for his brother’s car, which was also a utility. He later described standing on his bed to see a “silver or white” four-wheel drive utility with a “tray back” and “one of those sports bars”. He testified that he went into his loungeroom and shone a torch outside to see them “throwing beer cans or cans of alcohol at the fence”. He later elaborated that from his loungeroom he saw “…the male person going backward and forwards past the ute and throwing bottles. And I could hear bottles breaking and clinking in the back of the ute. I could hear the female swearing with the guy and they were arguing with each other saying hurry up, let’s go, and that sort of”. He variously explained their movements behind his brother’s utility/car parked in the driveway, as going back and forwards and past the other utility while throwing bottles - “breaking and clinking in the back of the ute” – but still outside the yard up to the fence line. He recalled the female “swearing with the guy and they were arguing with each other saying hurry up, let’s go, and that sort of …”. He had described his vantage point being about “six to, maybe, ten metres on the angle” but he was unable to identify any distinguishing features of the male “not from that distance”. He later described the male as being of “aboriginal decent” with “a hat on” and a “larger set build and shorts and shirt”. He added that he had a “pretty solid build” and “I think it was a reddish, a red coloured hat with black markings on it”. In cross examination, he accepted that in his written statement to police, he described the male as “as being Aboriginal or Torres Strait Islander, early 20’s, slim build, around five or six foot, wearing a blue coloured hooded jumper with a baseball cap and shoes”, but he recanted from that description to police saying “He wasn’t slim, no”. While he affirmed that the man had a “baseball cap” with “quite long hair coming out with the hat on”. He was unsure of the hat colour saying - “It was either red or blue. I couldn’t remember. Obviously, I’m saying blue because -r or red, cause I’ve mistaken the two, the jumper and the shirt. Cause it’s been so long”. His testimony was that the male and female were there for 12 to 15 minutes before they - “took off in a hurry … took off with the light off”. After that he went outside to find the abandoned Corolla describing it as “a little blue sedan, I’d say”. He was asked what he saw inside the car, he said “I think there was a crowbar still in there. There were drink bottles, smashed spirit bottles. In front of the car that was where they’ve pulled apart the cigarette casing. Taken out all the cigarettes and just left all the rubbish across the front”. In cross-examination and said, “I think there was a crowbar still in there.” He called the police.
18. [18]
    Constable Rumble testified that he photographed and forensically examined the Corolla in the police holding facility after it was towed from the scene and securely stored in the usual way. He took fingerprints and DNA samples inside and out of the car and the items inside. A DNA swab of the outside of the “small torch from memory” matched that of the appellant, which was not disputed by the appellant. Fingerprints were also taken of a bottle, but not of the ‘jimmy bar’.
19. [19]
    The appellant did not call or give evidence. The defence contended that the offences could not be proven beyond a reasonable doubt and pointed to several hypotheses that he said were consistent with his innocence.

Addresses

20. [20]
    In the course of her address, the police prosecutor relied upon R v Kaddour^[7] where Sofronoff P referred to the High Court’s reasoning in Weissensteiner v The Queen,^[8] to argue that the case was one “where there are facts which are solely in [the defendant’s] knowledge … So the fact that he has not given evidence or raised – and my friend in cross-examination did not raise any or put to the witnesses any reasonable hypothesis that would be consistent with innocence, your Honour can be satisfied beyond reasonable doubt and that you can draw the inferences of guilt and convict the defendant”.
21. [21]
    While the defendant’s advocate sought to identify reasonable hypotheses open on the evidence, the prosecutor, rather unconventionally, interrupted which lead to the following exchanges:

MS MILLS:Your Honour, my friend hasn’t put any of this to any of the witnesses.

MS SHEPHERD: In my submission, they ‑‑‑

MS MILLS: You can’t raise a hypothesis in a closing argument.

BENCH: What do you have to say about that?

MS SHEPHERD:They – they – the – the witnesses would not able to give evidence of what their opinion is of that hypothesis. Ultimately, your Honour, it’s a matter for you, not the witnesses.

BENCH:That’s true, but wouldn’t it have been appropriate for you to have called evidence to put those alternative factual scenarios before me?

MS SHEPHERD:Your Honour, it’s my submission that those witnesses would not have been able to give that evidence and the defence bears no onus to call any ‑‑‑

BENCH: Well, maybe the manner in which you’re presenting the hypotheses should be different. You’re providing to me factual scenarios for me to consider ‑‑‑

MS SHEPHERD:Yes.

BENCH: ‑‑‑ on behalf of your client.

MS SHEPHERD:Yes, I am.

BENCH: All right. Maybe you should be putting it forward perhaps more succinctly as possible alternatives. I don’t know. That might even be stretching it. But in some respects, it appears to me as if you’re trying to introduce evidence from me to consider.

MS SHEPHERD:In my submission, I’m ‑‑‑

BENCH: Is that the basis of your objection, Prosecutor?

MS MILLS:Yes, your Honour, particularly when they are hypotheses which are solely within the knowledge of the defendant.

BENCH: See, I’ve got nothing to support what you’re suggesting. I can take on board the fact that they’re, well, scenarios, but that’s about as far as I can take them.

MS SHEPHERD:And your Honour, given the Crown has closed their case, I can’t formally ask for that to be reopened.

BENCH: No.

MS SHEPHERD:They are factual scenarios in which we submit your Honour can take into account.

BENCH: All right. In other words, you’re saying that there’s a wide ambit of possible alternatives without having any supporting material for me.

MS SHEPHERD:The supporting material, in my submission, comes from the evidence itself which is the time periods in which your Honour’s heard of the prosecution timeline and it’s on that basis that ‑‑‑

BENCH: Okay. So you’re suggesting that there’s a window of opportunity where there’s alternatives might arise.

MS SHEPHERD:Yes.

BENCH: Okay. I can take it as far as that. And that’s your closing argument?

MS SHEPHERD:Yes, your Honour.

BENCH: And on that basis, the prosecution’s failed to prove the elements of the charges beyond reasonable doubt.

MS SHEPHERD:Yes.

22. [22]
    It seems to me that the rigour of the prosecutor’s argument, although inapplicable to the facts of the case, and grossly misconceived in its application, nevertheless adversely impacted on the court’s proper approach to the case.

Magistrate’s Decision

23. [23]
    The trial Magistrate reviewed the evidence and was satisfied that the four charges formed a linked course of offending “over approximately… about a four-and-a-half [hour] period, potentially”. In doing so, he did not rely on any of the stills of vehicles from the road footage, finding them, essentially, to be too blurry to assist in the prosecution case.
24. [24]
    The trial Magistrate proceeded on the basis that the only relevant evidence linking the appellant to the four offences is the finding of his DNA on the torch. His Honour was satisfied that the torch found in the abandoned Corolla was the torch that was stolen from the property subject of charge 2. His Honour highlighted the spree of offending was a “five-and-a-half-hour period from as early as 10pm on the 16^th of December to as late as around 3.15am on the 17^th of December 2019.” This was consistent with the evidence of Mr Robertson going to bed at 9 or 10 pm and waking at 4am to realise that he had been burgled.
25. [25]
    His Honour apparently appreciated that he could only be satisfied beyond a reasonable doubt of the appellant’s guilt if all reasonable hypotheses consistent with the appellant’s innocence could be excluded. His Honour sought to exclude the multiple and various hypotheses proffered by the defendant saying:

“Any alternative possibility must be more than a theoretical possibility. It must be evidenced to support them. Here, any notion of transfer of DNA other than is alleged by the evidence is unrealistic, and the hypothesis consistent with evidence ceases to be unreasonable when there is no evidence to support it.

Here, are a multiple of alternative inferences may be drawn which would be considered logical in the circumstances. They include he received a lift, the offender’s vehicle broke down and he assisted them to get back on the road, and in each case, in so doing, he touched, used, or came in contact with the red torch, thereby leaving his fingerprints and DNA on the torch. There may be, for some reason, the offender stopped at some location where they met the defendant, and had reason to give him a loan of the torch. The list of alternative inferences may go on, but in the absence of any evidence supporting such inferences, the case against the defendant is stronger, and the alternative hypotheses lack credibility.

… . An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility; something more than mere conjecture. It must be based on evidence. I find in the present case, on a reasonable consideration of the available evidence, the application of alternative hypotheses for the defendant would have the court engage in speculation rather than evidence.

For the hour of the day when the offences were committed at the locations linked and the manner in which they were committed, with the red torch containing the defendant’s DNA and fingerprints linked to the first offence and time transferred with other property from the first address to the vehicle taken from the second offence location, used to transfer property from the third crime scene found together outside the Martin address – rather, the witness Martin’s address – not long after 3 am, I find the only reasonable conclusion is that the defendant is guilty of each charge; that the prosecution have proved the case for each charge against the defendant beyond reasonable doubt; that no reasonable alternative inference consistent with innocence of the defendant is available in the evidence, and the defendant is guilty as charged.”

26. [26]
    In my respectful opinion, his Honour’s reasoning that “in the absence of any evidence supporting such inferences, the case against the defendant is stronger, and the alternative hypotheses lack credibility” bespeaks a misapplication of principles and misdirection as to primacy of the requirement that guilt must be established by the prosecution beyond reasonable doubt. To arrive at verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. In doing so, the onus is on the prosecution to exclude all reasonable possibilities or hypothesis consistent with innocence reasonably open on the evidence.

Unreasonable and Unsupported

27. [27]
    The verdicts may be disturbed, if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.^[9] This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,^[10] to make my own assessment of both the sufficiency and quality of the evidence.^[11]
28. [28]
    The prosecution case wholly depended on the DNA on the torch found in the abandoned Corolla. The prosecution sought to implicate the appellant using the single incidence of the DNA on the torch coupled with the circumstance that it was found in the abandoned Corolla, which contained other stolen property associated with earlier burglaries coupled with the stolen crowbar found at the Liquorland. The case was wholly circumstantial and tenuous at best.
29. [29]
    In R v Doyle,^[12] the Court of Appeal remarked about the scope of the Crown’s onus saying that:

“In my respectful opinion this submission misunderstands the well-established proposition that, in a circumstantial case, in order to secure a conviction the Crown only has to exclude every reasonable hypothesis consistent with innocence. It is important to appreciate that the word “reasonable” does not mean “logically open in theory”. Many inferences might be open as a matter of theoretical logic but which, in truth, are entirely unrealistic. Various terms have been used to describe such unreal, but theoretically possible, inferences. They have been called “light” or “rash” and they have been described as “mere conjecture”. An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility or, if one prefers, upon “something more than mere conjecture”. It must be based upon evidence.” (footnotes omitted)

30. [30]
    The settled principles concerning cases that turn upon circumstantial evidence were most succinctly summarised by the High Court in R v Baden-Clay:^[13]

“46… In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King.^[14] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen;^[15] see also Thomas v The Queen.’^[16]

47For 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"^[17](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"^[18] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.^[19]

48Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."^[20]

31. [31]
    The appellant posited many and varied hypothesises below and on the appeal. The primary submission is that it was open that at some point between the commission of charges 2 and 3 (which could have occurred as early as about 9 or 10pm), and the commission of charge 5 (which was at about 3am), the appellant has met up with persons in the stolen Corolla, held the torch and potentially other items for a limited period. He may have been handed the torch in order to look at something, given it was night time. Alternatively, he may have reached in to grab an item, and touched the torch accidentally. Significant time was allowed for this; no evidence was led by the prosecution suggesting Mr Pryce did not live in this geographical area. The occupants of the vehicle easily could have travelled around the Cairns area for a joy ride and met up with persons like Mr Pryce; joy rides in stolen cars are not at all uncommon in the Cairns area. Moreover, if it was suggested he was the person with the beige bucket hat, then the finding of his DNA on the torch is incongruous: that person in the CCTV is seen to be wearing gloves; if the defendant is said to be that person, it is unlikely his DNA would be on the torch.
32. [32]
    On my review of the evidence there is no need to be so elaborate beyond the location of the abandoned Corolla. It seems to me that the evidence raises the reasonable possibility that the appellant was the male seen and heard by Mr Martin outside his Trinity Beach home. He testified about a male with a red or blue baseball cap arguing with a female, moving and throwing bottles and cans, before they both left in a silver or white use without lights 12 to 15 minutes later. There was every opportunity for the male to touch the torch found in the front seat of the abandoned Corolla which was later discovered by Mr Martin. Mr Martin was unable to see the male from time to time but recalled him moving behind his brother’s utility/car parked in the driveway, and as going back and forwards and past the other utility while throwing bottles in the tray, and he apparently did not see the abandoned Corolla until after the people left in the ute.
33. [33]
    Mr Martin’s identification evidence of the man’s complexation, stature, height or clothing was not consistent with other identification evidence relating to the other offences. In particular, the red or blue baseball cap was not identified on the CCTV footage of the Liquorland offending, rather, that showed a person donning a green bucket hat. The CCTV stills photographs of the cars travelling on the highway were of such poor quality and nondescript as to be effectively useless. There was a dearth of any other fingerprints or DNA evidence on the car or its other contents, or evidence at any other crime scene, including finger printing at the Liquorland, attributed to the appellant.
34. [34]
    On my review, considering all the facts in evidence, it seems to me that a verdict of guilty of charges 2, 3 4 and 5 is not reasonably supported by the evidence such that the court could not be satisfied beyond reasonable doubt of the defendant’s guilt as being the only rational inference or by excluding all other reasonable hypotheses. Instead, it seems to that the use of the appellant’s DNA to implicate him in the earlier offending, is no more than mere conjecture and speculation.
35. [35]
    Further, my consideration of the whole of the circumstances in the evidence showed a reasonable possibility consistent with the defendant’s innocence for the particular charges. There was a reasonable and logical hypothesis that was open and not excluded by the evidence, that is - the man and woman seen by Mr Martin happened upon the stolen Corolla and opportunistically used the bottles and cans after the man used the torch inside that car. They threw the bottles and cans around and into the ute tray, they expressed haste and argued before leaving the scene surreptitiously.
36. [36]
    In conclusion, it seems to me that the verdict is unreasonable or cannot be supported, or there was a wrong decision of law or a miscarriage of justice, and I am bound to allow the appeal against the conviction. I will substitute verdicts of not guilty for each of charges 2, 3, 4 and 5.

Orders

37. [37]
    For these reasons, I made the following orders:

1. Appeal allowed.
2. The convictions, sentences and orders of the Magistrates Court in Cairns on 18 December 2020 are set aside, and substituted with the following verdicts and orders:
   1. (a)
      verdict for charge 2 of enter dwelling and steal property - “not guilty”;
   2. (b)
      verdict for charge 3 of enter dwelling and steal property, namely a phone and keys - “not guilty”;
   3. (c)
      verdict for charge 4 of unlawful use of motor vehicle without consent - “not guilty”;
   4. (d)
      verdict for charge 5 of enter premises, and steal property, namely alcohol, by break - “not guilty; and
   5. (e)
      the appellant is discharged in respect of all charges.

Judge DP Morzone QC