Firearm Conviction Quashed as Possible DNA Transfer Raised Doubt

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By Paul Gregoire and Ugur Nedim

Mounir Seifeddine worked as a kofta chef in a café owned by Tim Abraham in mid-2017. The part-time employee was alone at the establishment on 9 August that year, when a number of NSW police officers turned up to execute a search warrant.

On examining the storage area on the upper level of the café, officers noted a small door that led into the wall cavity with a space used for additional storage. One officer then located a large white bucket that had originally contained pickles with some rather suspect items inside.

Wrapped within a yellow cloth and a sock were three unregistered firearms – a Fabrique-Nationale self-loading pistol, a Beretta pistol and a Smith & Wesson revolver. One of these guns had its serial number wiped. And there were also two detachable box magazines and eight rounds of ammunition.

NSW police then carried out a more thorough crime scene investigation. A forensic analysis of the firearms turned up Seifeddine’s DNA on the trigger of the Smith & Wesson, while CCTV footage showed that on the day prior to the raid, the chef had accessed the wall cavity storage area.

Both Seifeddine and Abraham were arrested and charged with nine counts of firearms and prohibited weapons offences contained in a joint indictment. Both men then stood trial before a jury in the NSW District Court in 2019.

A long list of offences

Seifeddine faced three counts of possessing a firearm without a licence, contrary to section 7(1) of the Firearms Act 1996 (NSW) (the Act). This offence carries a maximum penalty of up to 14 years imprisonment.

The defendant was also charged with three counts of possessing an unregistered firearm, contrary to section 36(1) of the Act.

If this offence involves a pistol or a prohibited firearm it carries up to 14 years inside, but for any other type of firearm, it makes an offender liable to up to 5 years prison.

One count of possessing a defaced firearm formed part of the indictment. This offence is contained in section 66(1)(b) of the Act and it too carries up to 14 years in prison. This charge related to the firearm that had its serial number obliterated.

Two further counts of unauthorised possession of a prohibited weapon were involved. Contained in section 7(1) of the Weapons Prohibition Act 1998 (NSW), this crime again carries up to 14 years gaol time. And these charges were related to the two detachable box magazines.

NSW District Court Judge Donna Woodburne advised the jury that in order for a finding of guilt, the Crown’s case must prove Seifeddine knew of the existence of the firearms, intended to exercise custody over them along with Abraham, and that this was to the exclusion of anyone else.

The jury found Seifeddine guilty on all charges on 25 July 2019. And Judge Woodburne subsequently sentenced the part-time chef to 5 years and 6 months prison time, with non-parole set at 3 years and 5 months.

Based on inference

The Crown case against Seifeddine was based on circumstantial evidence. This differs from direct evidence where established facts are based on a matter having been witnessed. Circumstantial evidence relies on inference leading to a conclusion that establishes a fact.

The case against Seifeddine relied on five circumstantial matters that were to establish his guilt beyond a reasonable doubt in the minds of the jury. These included his working in the café part-time for five to six days a week, and that he had access to the storage area.

Further, there was CCTV footage showing him accessing the wall cavity storage space the day before the raid, the fact that only he and Abraham had access to that area over the previous eight days, as well as the evidence that Seifeddine’s DNA was on the revolver’s trigger area.

The prosecution accepted that its evidence was circumstantial, and it was only in accepting all of it in its entirety that the jury could establish a verdict of guilt beyond reasonable doubt.

Re-examining the evidence

Seifeddine appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) on 9 April 2021. He claimed the verdict was unreasonable based on the ground that the presence of his DNA on the trigger area of the gun could have been inadvertently transferred by the police handling it.

NSWCCA Justices Lucy McCallum, Peter Garling and Richard Cavanagh reviewed the most crucial evidence that had led to the conviction, which was the CCTV footage showing Seifeddine in the storage area and the DNA evidence.

The footage shows the chef walk over to the door of the wall cavity carrying a yoghurt bucket. This space was used to store multiple items, and Seifeddine claimed he used the bucket he was holding to carry tools in, and, at that moment, he was accessing the space to retrieve some.

As the justices point out, all that can be seen in the footage is the chef standing in front of the door and then leaving the area with the bucket he’d arrived with. There was nothing to show that he’d touched the pickle bucket or the yellow cloth. This evidence, they concluded, “was at best neutral”.

In terms of the other evidence, Seifeddine’s DNA was found on the handle of the pickle bucket, as well as its rim, it was on the trigger area of the revolver, the black sock it was wrapped in, as well as the yellow cloth.

This was the lynchpin evidence, and it had to be shown on trial that the DNA hadn’t been indirectly transferred.

Direct transference on all four items beside the trigger of the revolver could readily be explained away as not holding any incriminating implications, even though it was quite a coincidence. So, it all boiled down to the DNA on the trigger area of the revolver.

The trigger evidence

The search was filmed, and it shows all officers wearing gloves, and changing them to avoid cross-contamination. On searching the wall cavity, an officer clearly states he’s changing gloves, however he went on to touch areas that Seifeddine would have previously done so himself.

That officer, Sergeant Landrigan, agreed there were aspects that could have led to contamination, including touching a nearby desk, turning the handle to the cavity, as well as touching the bucket lid and rim, the camera, a cardboard box and his phone all with the same gloves.

Landrigan further agreed that whilst wearing those gloves he touched everything in the bucket, including the firearms. At that point, he also dragged a chair across the floor to put it on. He further removed the two magazines and the yellow cloth, and it was then he changed gloves.

Under cross-examination, forensic biologist Bate said that under the circumstances described and what she witnessed in the search footage, inadvertent transference was a possibility. This was especially so in considering the force and movement needed to turn a handle.

Landrigan also took a long time to remove the revolver from the sock it was in to avoid accidental discharge. And based on a study she consulted during the trial, Bate said that there was up to a 76 percent chance that DNA from the sock could have made it onto the gun.

Freed from prison

“The reasonable possibility of secondary transfer of his DNA onto that firearm was not only not excluded but indeed found some support in the evidence in the Crown case,” their Honours found. “That conclusion was enough for the appeal to succeed.”

The bench of three NSWCCA justices ordered on 6 September last year, that Seifeddine’s conviction issued by the NSW District Court be quashed, and he be released immediately.

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