Byrne v R [2020] NSWCCA 218

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Byrne v R [2020] NSWCCA 218 Hearing dates: 16 June 2020 Decision date: 28 August 2020 Before: Johnson J at [1] Wright J at [161] Wilson J at [166] Decision: 1. Grant leave to appeal against conviction.

2. Appeal against conviction dismissed. Catchwords: APPEAL – application for leave to appeal against conviction – Judge-alone trial – whether verdicts are unreasonable and/or cannot be supported having regard to the evidence – offences of aggravated break and enter and commit serious indictable offence (armed robbery) and detaining a person with intent to obtain an advantage whilst in company – group of five offenders forced entry into the Casino Golf Club with weapons and detained two employees – offenders wore gloves and various forms of clothing to cover their heads and faces – stolen phone and discarded items of clothing and shoes later found in a nearby paddock – sole issue at trial whether applicant was one of the robbers – applicant's DNA found on nine items of discarded clothing – expert evidence regarding DNA given at trial – where Crown case against the applicant at trial was circumstantial – whether there was reasonable hypothesis consistent with innocence concerning presence of applicant's DNA on nine items of clothing – held that alternative hypotheses did not rise above speculation or conjecture – held it was open to trial Judge to find that the only reasonable explanation for the presence of the applicant's DNA on the nine items of clothing was that he was one of the robbers – leave to appeal against conviction granted – appeal against conviction dismissed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Aytugrul v R (2010) 205 A Crim R 157; [2010] NSWCCA 272 Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Bell v R [2017] NSWCCA 207 Decision Restricted [2018] NSWCCA 217 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28 Hopgood v R [2019] NSWCCA 246 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Sloan v R [2015] NSWCCA 279 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 Texts Cited: --- Category: Principal judgment Parties: Frederick Darryl John Byrne (Applicant) Regina (Respondent) Representation: Counsel: Mr S Fraser (Applicant) Ms E Wilkins SC (Respondent)