Pettersen v R [2022] NSWDC 512

Pettersen v R [2022] NSWDC 512

The magistrate erred by treating the expert evidence that police transfer of the appellant's DNA to the vest was unlikely as sufficient to exclude that possibility. Because it remained reasonably possible, on the evidence including the video and police handling of items in the unit and of the vest, that the appellant's DNA was transferred to the vest by police officers, the prosecution did not exclude all reasonable hypotheses consistent with innocence and did not prove knowledge and possession beyond reasonable doubt.

Jurisdiction
Australia
Judgment Date
26 October 2022
Procedural Posture
Criminal Appeal From Local Court Conviction / Appeal Against Conviction to the District Court Under S 18 Crimes (appeal and Review) Act 2001
Outcome
Appeal allowed; conviction and penalty set aside.
Legal Topics
['possession of Prohibited Weapon' 'circumstantial Evidence' 'dna Evidence' 'reasonable Hypotheses Consistent With Innocence' 'appeal From Local Court to District Court']
['criminal Law' 'criminal Procedure' 'appeal and Review'] ['possession of Prohibited Weapon' 'circumstantial Evidence' 'dna Evidence' 'reasonable Hypotheses Consistent With Innocence' 'appeal From Local Court to District Court']

Case Brief

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Procedural Posture

Criminal Appeal From Local Court Conviction / Appeal Against Conviction to the District Court Under S 18 Crimes (appeal and Review) Act 2001

Legal Issues

  1. 1 ["Whether the magistrate erred in rejecting the appellant's hypothesis that his DNA was transferred to the vest by police handling rather than by the appellant touching it." 'Whether the prosecution proved beyond reasonable doubt that the appellant knew the prohibited weapon was stored in the unit and therefore possessed it for the purposes of s 7 of the Weapons Prohibition Act 1998.' 'Whether the prosecution excluded all reasonable hypotheses consistent with innocence in a circumstantial case based on DNA evidence.']

Ratio Decidendi

The magistrate erred by treating the expert evidence that police transfer of the appellant's DNA to the vest was unlikely as sufficient to exclude that possibility. Because it remained reasonably possible, on the evidence including the video and police handling of items in the unit and of the vest, that the appellant's DNA was transferred to the vest by police officers, the prosecution did not exclude all reasonable hypotheses consistent with innocence and did not prove knowledge and possession beyond reasonable doubt.

Court Disposition

Appeal allowed; conviction and penalty set aside.

Orders

  • ['Appeal allowed.' 'I set aside the conviction and the penalty imposed by the magistrate.']