Adel Saeidi v The Queen
[2015] VSCA 219
•21 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0018
| ADEL SAEIDI | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | WARREN CJ, REDLICH JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 August 2015 |
| DATE OF JUDGMENT: | 21 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 219 |
| JUDGMENT APPEALED FROM: | DPP v Saeidi (Unreported, County Court of Victoria, Judge Harbison, 10 November 2014) (Conviction) |
---
CRIMINAL LAW – Conviction application – Applicant found guilty of offences against housemate, including rape by lingual-vaginal penetration – Complainant did not allege lingual-vaginal penetration to complaint witnesses or medical examiner – Multiple-source DNA profile consistent with DNA of applicant, complainant and another found in swabs taken from complainant’s face, neck and breast but applicant excluded from single-source DNA profile found in swabs taken from complainant’s vulva and perineum – Whether verdict on rape unreasonable or cannot be supported having regard to the evidence – M v The Queen (1994) 181 CLR 487 – Application refused.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D Dann | Tony Hannebery Lawyers |
| For the Respondent | Mr P Kidd SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WARREN CJ
REDLICH JA
CROUCHER AJA:
Overview
Following a trial in the County Court, on 10 November 2014, a jury, by a majority, found the applicant guilty of five charges alleging offences committed against a woman with whom he was sharing a house.
After hearing a plea in mitigation, on 9 December 2014, the trial judge sentenced the applicant in accordance with the following table:[1]
[1]False imprisonment (Charge 1) is a common law offence with a maximum penalty set by s 320 of the Crimes Act 1958 (Vic). The rape (Charge 3) and the indecent assaults (Charges 2, 4 and 5) were charged pursuant to ss 38 and 39 of the Crimes Act respectively.
Charge Offence Maximum term Sentence Cumulation 1 False imprisonment 10 years 9 months 6 months 2 Indecent assault 10 years 6 months None 3 Rape 25 years 4 years Base 4 Indecent assault 10 years 6 months None 5 Indecent assault 10 years 6 months None Total effective sentence 4 years and 6 months Non-parole period 2 years and 6 months Pre-sentence detention 380 days
The applicant now applies for leave to appeal against conviction.[2] His sole complaint is that the guilty verdicts on Charges 3 and 5 are unreasonable or cannot be supported having regard to the evidence.[3] In particular, it is submitted that those verdicts, especially the rape conviction, were not open in light of various alleged inconsistencies in the complainant’s evidence; her failure to allege lingual-vaginal penetration when speaking to the complaint witnesses; and the fact that the applicant was excluded as a source of the DNA extracted from swabs taken from the complainant’s vulva and perineum soon after the incident.
[2]Pursuant to s 274 of the Criminal Procedure Act 2009 (Vic).
[3]Pursuant to s 276(1)(a) of the Criminal Procedure Act 2009 (Vic).
For reasons that follow, we would refuse the application.
Evidence at trial
Since the nature of the ground of appeal requires this Court to conduct an independent assessment of the whole of the evidence given at trial,[4] we shall turn first to a summary of that evidence.
[4]See M v The Queen (1994) 181 CLR 487 at 492-495.
The complainant
In August 2012, the applicant, the complainant and KR lived in a “share-house” in St Albans. Each occupant had a separate lockable bedroom but all three shared the common areas such as the kitchen, laundry, bathrooms and toilets.
At about 10:30 p.m. on Friday 23 August 2012, the complainant’s friend SD came over to the share-house. They did various things together, including watching a movie on the complainant’s laptop computer in her bedroom. SD left at about 2:00 a.m. on the Saturday. Upon his arrival and departure, SD kissed the complainant on the cheek. She denied kissing him on the lips.
About an hour after SD left, the complainant went to the toilet. She was wearing a dressing gown but nothing under it. She did not think anyone else would be up at that time. When returning to her room, she was confronted by the applicant, who complained that her guest had been too noisy when leaving the house. She apologized. He was angry.
The applicant then grabbed the complainant in a bear hug and pushed her into his bedroom. He closed the door and said that it would “take ten minutes”. She said, “What do you mean?” He kneeled in front of her and tried to kiss her. She tried to push him away and asked him what he was doing. She tried to get up but he pushed her back down and kissed her on the face, cheek, lips and neck. This went on for five or ten seconds. She said it “was sloppy” and “his saliva was everywhere”. These events formed the basis of the charge of false imprisonment (Charge 1).
The applicant then moved down to the complainant’s nipple – she could not remember which side – and “used his mouth on [it]”. This is the evidence of the first charge of indecent assault (Charge 2).
The applicant next moved down to the complainant’s vagina. He licked and bit her clitoris, and penetrated her vagina with his tongue for “[a] good ten second[s]”. She said it felt “disgusting … sloppy and it was wet … it just felt so unpleasant”. The evidence of the applicant’s tongue penetrating the complainant’s vagina is the evidence of rape (Charge 3).
The complainant kept trying to close her legs. The applicant moved her onto her right side and “spooned” her from behind. She could feel his hand in his pants. She managed to push him away and then tried to get to the door, but he pushed her back onto the bed and tried to remove her dressing gown again. She said to him, “Can you please let me go?”
He then bit her nipple – she thought it was on the right side – and licked around that area. This is the evidence of the second charge of indecent assault (Charge 4).
Next, the applicant moved down to her vagina again, but, because she had her legs closed, he was able only “to lick the top of her pubic hair”. It was “only for a few seconds, because [she] had [her] legs closed”. This is the evidence of the third and final charge of indecent assault (Charge 5).
The applicant then tried to “spoon” the complainant again. She could feel something “squishy” on her back, which she presumed to be his penis. She yelled at him, “No, I’m not going to have sex with you.” He said, “No. I’m with God.” At one point, she tried to scream but he had his forearm across her neck. He pointed at the wall and said, “[KR]”; and then put his fingers to his lips and said, “Shush.” She stopped trying to scream because she was fearful he would hurt her. Eventually, she was able to escape towards the door. As she looked back, she could see that the applicant was naked from the waist down but was wearing a shirt. She ran to her own room and locked the door behind her.
The complainant then rang KR, asked him to come to her room and said that “Adel tried to rape me [or tried to have sex with me]”. She did not tell him that the applicant put his tongue in her vagina. She did not know at that time “that having someone’s tongue penetrate your vagina meant that you were rape[d]”.
After KR came to her room, the complainant rang her boyfriend, WJ. She told him, “Adel tried to rape me.” He arrived within ten minutes. She met him at the front door. He drove her to Keilor Downs Police Station, which took another eight to ten minutes. In the car, she told WJ that “Adel tried to lick me downstairs”. She did not tell him that the applicant did lick her downstairs. She “watered down everything” to him because she was worried he would get angry and go back to the house. The complainant accepted that, as it happened, when she returned to the house later that morning with WJ, he forced entry into the applicant’s bedroom and bashed him.
At the police station, the complainant spoke to two male police officers. They took notes and she drew them a plan of the premises. She said that she had been licked on the vagina. She accepted that that was the first time she had said that, but she was in a daze, could not believe it had happened and was embarrassed. The police suggested she go to hospital for a forensic examination, which she did, with, she thought, two female police officers.
While at the police station, she texted SD and told him, “I’m at the police station because I was almost got wrapped by the Muslim guy in the house.” She meant to type “raped”, not “wrapped”.
At the hospital, the complainant was examined by Dr Nicole Dyer. She was still wearing just her dressing gown. The doctor took swabs from her cheeks, neck, nipples, lower back, outside and inside her vagina and inside her mouth. There were no injuries to her body but a bruise came up on her inner thigh on the following Monday.
In cross-examination, the complainant accepted she told the doctor, in response to her direct questions, that there was no penile or digital penetration. The doctor did not specifically ask if there had been penetration by use of the tongue. After initially saying she told the doctor that the applicant had put his tongue in her vagina, the complainant accepted she might not have said that but that she did say that he licked her vagina. She agreed she told the doctor she felt something wet on her back. She believed the applicant may have ejaculated on her back.
Also in cross-examination, the complainant said that the applicant was “slobbering all over [her] face”; that, when he got down to her vagina, his “tongue [was] going everywhere … in this sloppy, wet, disgusting way”; and that, when he licked her vagina and bit her clitoris, there was “more saliva and slobber”.
The complainant denied she had made up her allegations.
KR
KR gave evidence that, when sleeping in his bedroom, he was woken by the complainant’s telephone call at about 3:30 a.m. She asked him to come to her room and said, “Adel attacked me.” When he got there, she was shaky, very nervous, crying and would not talk much. She said, “Adel tried to have sex with me, tried to rape me.”
The complainant’s boyfriend WJ arrived about five minutes later and collected her from her bedroom. She told him what happened and they were both very upset. The complainant took a bag of clothes, said she was not coming back and left with her boyfriend. KR went back to bed.
Later that morning, he was awoken again, this time by the sounds of knocking on the applicant’s bedroom door and a struggle. He spoke to the applicant, who tried to explain what had just happened, but it was difficult because his English was poor. He understood, nevertheless, that WJ had assaulted the applicant. The applicant passed KR a telephone and tried to get him to tell police what had happened. He took the applicant to the police station, but it was closed.
In cross-examination, KR accepted that, at a later point, upon questioning from him, the applicant denied trying to have sex with the complainant.
KR also accepted that he did not hear any screaming, bumping or suggestion of a struggle between 11:30 p.m. and 3:30 a.m., but added that he was “sound asleep”.
SD
SD confirmed that he and the complainant kissed each other on the cheek when he arrived on the Friday evening and again as he left.
In cross-examination, SD accepted he massaged the complainant’s back over her clothes but denied they kissed each other on the lips.
He confirmed he received the text message from the complainant saying, “I’m at the police station because I was almost got [raped] by the Muslim guy in the house.”
WJ
WJ gave evidence that, at about 3:00 a.m. on the Saturday, the complainant rang him and said that the applicant tried to rape her. He drove straight to her place, which took about ten minutes. He met the complainant and KR at the front door. The complainant was “really distressed” and shaking. She repeated that the applicant tried to rape her.
He took her straight to the police station. In the car, he was “interrogating her a little bit”. She said the applicant “bear-hugged her, … pulled her into … his room, … overpowered her and brought her to ground”. She said that “when the struggle was happening … he was trying to pull her legs open and was … licking her on the nipples … [and] that he tried to kiss her and licked her private areas [or] downstairs”. She said “he choked her when she tried to scream” and that she “was a bit afraid to do anything”. She had “a quiver in her voice constantly as she was talking”.
From the police station, he took her to the hospital. He thought that the examination concluded at about 7:00 a.m.
He then drove the complainant back to the share-house to collect her things. While there, he entered the bedroom of the applicant, who was asleep on the floor, and assaulted him. He was charged with and later pleaded guilty to aggravated burglary and intentionally causing injury, for which he was sentenced to a community correction order for 18 months.
WJ accepted, in cross-examination, that he had told the police that the complainant told him that the applicant tried to lick her downstairs, not that he did lick her, and that the former is what she had told him.
WJ denied that, on the Friday evening, while the applicant was eating his dinner in the kitchen, he (WJ) blew his nose and spat into the sink; that the applicant stood up and approached him; that he pushed the applicant away; and that the complainant spat in the applicant’s face.
Constable Brendan Higgs
Constable Brendan Higgs gave evidence that the complainant and WJ attended the front desk at Keilor Downs Police Station at about 3:55 a.m. on the Saturday. The complainant was wearing a dressing gown. She appeared to be quite subdued, very shy and a little bit shaken. He spoke to the complainant alone, who told him the following:
After a dispute with the applicant over noise her guest had made earlier, the applicant grabbed her in a bear hug, dragged her into his room and tried to kiss and lick her. He threw her to the floor and said, “This will take ten minutes.” He pulled her nightgown up, bit her on the nipple and licked her vagina. This went for ten or 15 minutes. He took out his penis and told her to be quiet. On direct questioning by the police officer, the complainant said there was no penile penetration. The applicant told her, “I’m with God. I don’t have sex.” She fought him off and screamed out, “No.” The applicant had his pants down. The applicant had used his forearm to choke her and prevent her from screaming. She called KR and her boyfriend, WJ. She said she had not yet washed.
The complainant said that she had kissed SD on the lips.
In cross-examination, Constable Higgs said he did not ask the complainant whether the applicant had penetrated her vagina with his tongue. Nor did she volunteer that he had done so.
Dr Nicole Dyer
At 4:50 a.m. on the Saturday, Dr Dyer was asked by police to conduct a forensic examination of the complainant. The examination was conducted at 6:30 a.m. for 45 minutes to an hour.
The doctor had been told by a female police officer that the complainant alleged that, at about 3:00 a.m., a male had kissed her on the face, neck, breast and genital region and had attempted to insert his fingers into her vagina.
The complainant told Dr Dyer that she had been grabbed in a bear hug and pulled into the male’s bedroom. He kissed her on the face, mouth and both sides of her neck. There was a lot of saliva. He sucked both of her nipples and bit the right one. He put his mouth on her genital region and his fingers in her genital region. When he was spooning her from behind, she felt something wet on her back. At some stage, he tried to choke her with his arm across her neck. On direct questioning, the complainant denied penile-oral, penile-vaginal or penile-anal penetration and did not think digital-vaginal penetration occurred. She denied any physical symptoms such as pain or bleeding since the incident. She had not showered or bathed since the incident.
Dr Dyer conducted a physical examination of the complainant. She performed an external examination of the genitalia. As the patient had indicated that there had been no vaginal penetration, she did not consider it necessary or appropriate to examine her internally. She observed no injuries. Given the complainant had described having her lower limbs sat upon, a pressing down on her shoulders and compression to her neck, the doctor looked specifically for injuries in those areas, but did not find any. That, however, was explicable on the basis that injuries in those areas might have been developing unseen at that time. That the complainant was taking Warfarin might have increased the risk, extent and size of bruising, but it is impossible to know by how much any individual might be affected in this regard.
The doctor collected wet and dry swabs from the right and left sides of the complainant’s face, the left side of her neck, right breast, left lower back region, the perineum (which she described as the genital region outside the labia majora) and the vulva (which she described as just on the inside of the labia majora). A swab was also taken from inside her mouth as a reference sample.
Nicole Haycraft
Nicole Haycraft, a forensic officer at the Victoria Police Forensic Services Centre (“VPFSC”), gave evidence of DNA and other analyses of the swabs taken from the complainant and reference samples taken from the complainant and others.
The DNA results are summarized in the following table (which is similar to the table put before the jury):
Location Complainant Applicant WJ SD KR Vulva Assumed Excluded Excluded Excluded Excluded Perineum Assumed Excluded Excluded Excluded Excluded Right face Not excluded Not excluded Inconclusive Excluded Inconclusive Left face Not excluded Not excluded Inconclusive Inconclusive Inconclusive Lower back No trace of semen and no DNA profile obtained Left neck Not excluded Not excluded Inconclusive Inconclusive Inconclusive Right breast Not excluded Not excluded Inconclusive Excluded Excluded
Neither semen nor any DNA profile was detected in the samples taken from the complainant’s lower back. In cross-examination, Ms Haycraft accepted that semen, like blood and saliva, is a relatively rich source of DNA.
The samples taken from the complainant’s face (right and left), neck (left) and breast (right) all tested positive for the presence of human saliva. Those same samples also contained DNA profiles from at least three persons. The complainant and the applicant could not be excluded as possible contributors to each of those samples. It could not be determined whether the DNA extracted came from saliva or another biological source.
In cross-examination, Ms Haycraft accepted that DNA could be transferred between persons sharing a house if, for example, they used the same hand towel, touched the same buttons on a microwave oven or touched the same hand-rail on a staircase.
The samples taken from the complainant’s vulva and perineum contained a DNA profile from one person. The complainant could not be excluded as the source of that DNA. The applicant, WJ, SD and KR were excluded as possible contributors to the DNA in those samples.
Ms Haycraft said that, while a person’s saliva is a rich source of DNA, a woman’s vulva is also a rich source of her DNA, which “means it can be difficult to detect foreign DNA in that area”. Factors that might impact on detection of foreign DNA are whether there has been washing or bathing of the area since the incident, the period of time that has passed between the incident and the swabbing, whether clothing subsequently has contacted the relevant surface and whether excessive sweating might have diluted any foreign DNA.
In cross-examination, Ms Haycraft said that, while oral sex is a circumstance in which DNA could be transferred from the mouth to the vulva, “[d]epending on the amount of saliva that was left on the site, that could affect the ability to detect foreign DNA from any samples from that site”. She said that “it’s more difficult to detect if there’s foreign DNA [in the vulva]”. She was also asked the following question and gave the following answer:
We have been told by [the complainant] in this trial, one of the things you may not know is that [the applicant] is alleged to have performed non-consensual oral sex on her, and she used the phrase several times that when he was doing so he was slobbering, it was wet, it was disgusting, and she has clarified that to include – to agree that there was a lot of saliva. Again, in circumstances where we have someone who is … telling them it was a lot of saliva – slobber, and it was disgusting, surely you would have to conclude that that would make it more likely that there would have been DNA from [the applicant] discovered at that site?---Yes. If there were more saliva present, then that would in turn make it more likely that a foreign DNA profile could be detected, but it doesn’t make it certain that it would be.
In re-examination, Ms Haycraft said that “it can be difficult to detect foreign DNA from an area such as the vulva, where there’s already a lot of DNA present from the person whose vulva it is”; and it is more difficult to detect foreign DNA “because the DNA … from the person whose vulva [it] is … can swamp the DNA that’s present from other sources”.
Ms Haycraft was not asked to conduct analysis on a nightgown or bedclothes.
Erin Pirie
Erin Pirie, also a forensic officer at the VPFSC, gave evidence of statistical analysis of the DNA results concerning the swab from the right side of the complainant’s face. She said that, assuming the complainant to have contributed to that sample and applying a 99 percent confidence limit, it is 31,000 times more likely that the complainant, the applicant and an unknown person drawn at random from the Australian Caucasian population contributed to the sample than the proposition that the complainant and two unknown persons drawn at random from that population contributed to the sample. In Ms Pirie’s opinion, this provides “very strong support” for the proposition that the mixture of DNA in the sample from the right side of the complainant’s face originated from the complainant, the applicant and an unknown person drawn at random.
Ms Pirie was not asked to calculate likelihood ratios for any other samples, as it takes one to two days to perform the calculations for each three-person sample and the sample chosen for performing the calculation was thought to contain the most information. She accepted, in cross-examination, that the likelihood ratios for the other multiple-source samples “could have been very different [from] the one obtained”.
Detective Senior Sergeant John Clark
Detective Senior Sergeant John Clark oversaw the investigation into the complainant’s allegations.
He believed the complainant came to the police station at 3:55 a.m. on Saturday 25 August 2012 and was taken, at 5:45 a.m., from there to the hospital by Detective Sergeant Mark Guthrie.
At about 2:45 p.m. the same day, police attended at the applicant’s address and arrested him. It was apparent that the applicant had been assaulted and had sustained injuries, including a cut lip and a bruised eye. The applicant’s bedding, shorts and underwear were seized but were not subjected to DNA analysis.
At 5:53 p.m., the applicant was interviewed by Detective Clark and another officer with the assistance of a Persian interpreter. An edited version of the interview was played to the jury. When asked what he did the previous night, the applicant said that, at about 8:20 p.m., when eating his (the applicant’s) dinner in the kitchen, WJ blew his nose and spat into the sink; that he (the applicant) then stood up and approached him; that WJ pushed him away and he pushed him back; and that the complainant spat in his (the applicant’s) face. After he went to sleep at about 11:30 p.m., he was awoken the next morning at about 8 o’clock by WJ assaulting him. The applicant denied the complainant’s allegations and repeatedly protested his innocence.
Detective Clark confirmed that the applicant had no criminal history on the national database.
The Crown case
The Crown case at trial was that the complainant’s evidence was honest and reliable; was consistent with the other evidence; and was supported by the DNA evidence.[5]
[5]This is how the judge described the Crown case in her charge to the jury. Neither the parties nor the Court had transcript of counsel’s final addresses at the hearing of the application.
The applicant’s case
The applicant did not give or call any evidence. His counsel submitted to the jury that it was inconceivable that the complainant was telling the truth, and that so much was apparent from the other evidence in the trial, including the inconsistencies in her evidence; the denials in the applicant’s police interview; the absence of the applicant’s DNA on the complainant’s vulva, perineum or back; the absence of evidence of physical injury; and the fact that KR did not hear anything at the time of the alleged assaults on the complainant.[6] The elements of the offences charged were not otherwise in dispute.
[6]Again, this is how the judge described the defence case in her charge to the jury.
Jury deliberations
Following a six-day trial, the jury commenced deliberations on Monday 3 November 2014 at about 1:30 p.m. and went home at about 4:00 p.m. the same day. They did not sit on the Tuesday (as it was Melbourne Cup Day).
After an hour’s deliberations on the Wednesday, the jury, in a note, asked: “What if [the accused was] found guilty on three of five charges and cannot agree on the other two charges? What would happen?” After discussion with counsel, the judge told the jury that they had been deliberating for a relatively short period, that a unanimous verdict was required on each charge and that each charge must be considered separately. The jury continued deliberating until about 3:45 p.m.
On the Thursday, at about 3:00 p.m., the jury, in a note, indicated: “We are a hung jury on all five charges. We see no way that this position will ever change”. The judge sent the jury home for the day and told them she would address their note the next day.
On the Friday morning, the judge gave the jury both a perseverance direction and a majority verdict direction. Later in the day, the judge sent the jury home for the weekend.
On the following Monday, at 2:19 p.m., the jury returned a verdict of guilty, by majority, on each of the five charges.
Applicant’s and respondent’s submissions on the application
Ground of appeal
We turn now to the submissions on behalf of the applicant and the respondent on the application.
Initially, the applicant raised two grounds of appeal. However, counsel who appeared on his behalf in this Court (but not at trial) advised at the outset of the hearing that Ground 2 was abandoned and that only Ground 1 would be pressed.
Ground 1 reads as follows:
The verdicts on Charges 3 and 5 are unreasonable or cannot be supported having regard to the evidence, particularly in view of the cumulative effect of the following matters:
a) The applicant was excluded as a contributor to the DNA located on swabs taken from the perineum and vulva of the complainant, which is consistent with innocence.
b) The circumstances described by the complainant are such that a large amount of DNA from the applicant would have been left on the complainant.
c) The complainant failed to allege vaginal penetration to the first four complaint witnesses that she spoke to … .
It was submitted that, upon the whole of the evidence, it was not open to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was guilty of rape (Charge 3) or the third indecent assault (Charge 5), but particularly the rape. The respondent submitted that it was well open on the evidence to find the applicant guilty.
The applicant made essentially three categories of attack on the evidence.
Matters said to cast doubt on complainant’s account generally
The first category was that there were said to be several matters that cast doubt on the complainant’s account generally.
First, it was submitted that the complainant told Dr Dyer that the applicant attempted to insert his fingers in her vagina, when that was not the version she gave at trial.
The respondent submitted that, on a closer reading of the doctor’s evidence, it is apparent that the two passages relied on by the applicant do not support that submission. First, Dr Dyer said that a police officer – not the complainant – told her that the complainant alleged that the applicant attempted to insert his fingers into her vagina. This discrepancy does not appear to have been taken up with the complainant or any other witness in cross-examination. Secondly, Dr Dyer’s evidence was that the complainant said that the applicant put “his fingers in her genital region”. In another part of her evidence, Dr Dyer said that the complainant told her she “did not think that digital penetration occurred”. It was submitted that neither piece of evidence necessarily suggests the complainant was asserting attempted digital penetration. Thirdly, it was submitted that, in any event, in circumstances where the complainant was alleging that the applicant tried to force, and did force, her legs apart, it would not be surprising if he touched her (with his fingers) in the genital region and that the complainant perceived that the applicant was attempting to insert his fingers in her vagina.
Secondly, it was pointed out on behalf of the applicant, correctly, that Dr Dyer said that the complainant told her that “both her nipples [were] sucked by the male”, whereas the complainant did not allege that in her evidence before the jury. (We note that WJ’s evidence was that the complainant told him that the applicant “was … licking her on the nipples”.)
The respondent pointed out, however, that the complainant was not sure which of her nipples had been touched on the first occasion. Further, it was submitted that, whether she said her nipples were sucked or licked, or that the applicant placed his mouth over one or other of them, these are not the types of inconsistency that necessarily deny a witness’s credit to the point of rendering a conviction unsafe. To be sure, they are matters for a jury to consider; and, when weighed alone or with other considerations, might be thought by a jury to be significant. But they are not obstacles to conviction.
Thirdly, the applicant submitted that Constable Higgs’s evidence – that the complainant told him that she and SD kissed on the lips – was squarely inconsistent with her denial of that behaviour.
That is true. But, as the respondent submitted, there might be other explanations for the discrepancy. An obvious one is that neither the complainant nor SD might want to admit kissing each other on the lips for fear of making WJ jealous. Another is that the policeman was mistaken. Yet another is that the complainant and SD were both mistaken. In any event, it would be open to a jury to regard such an inconsistency as insignificant.
Fourthly, it was submitted that the complainant’s evidence of believing the applicant ejaculated on her back was not supported by the DNA evidence.
Again, that is true. But, as the respondent submitted, the complainant did not assert that she saw the applicant ejaculate. Rather, her evidence on this issue was more in the nature of surmise, or at least it was open to the jury to treat it that way.
Failure to allege lingual-vaginal penetration to complaint witnesses
It was against that background that the second category of weakness in the evidence was said to assume even greater significance – namely, that the complainant failed to allege lingual-vaginal penetration to the complaint witnesses. In particular, reliance was placed on the evidence that the complainant made quite different positive allegations to others – namely, she told KR that the applicant tried to rape her; she told WJ that he tried to rape her and that he tried to lick her downstairs; she told Constable Higgs that he licked her vagina; she told SD (by text) that she almost got raped; and she told Dr Dyer that he put his mouth on her genital region and his fingers in her genital region. Yet, in none of those complaints did she allege lingual-vaginal penetration. It was submitted that these differing accounts showed not only that the complainant’s version evolved over time but that the possibility that she had fabricated the ultimate version of lingual-vaginal penetration could not be excluded.
The respondent submitted that there was no reason to doubt the complainant’s explanations for these omissions. The complainant said that, at that time, she did not know that lingual-vaginal penetration could amount to rape. She was concerned to “water down” the detail with her boyfriend, for fear that he would get angry – which he did anyway, even to the point of assaulting the applicant. Neither Constable Higgs nor Dr Dyer asked the complainant whether the licking involved penetration of her vagina. It was submitted that, in all the circumstances, it was open to the jury to accept these explanations.
DNA evidence
We turn now to the third category of alleged weakness in the evidence, which, along with the other matters, is said to have compelled a doubt about the applicant’s guilt, especially on the rape charge. It was submitted that the jury had to doubt the complainant’s account, particularly of lingual-vaginal penetration, in circumstances where the applicant’s DNA was excluded from the swabs taken from the complainant’s vulva and perineum, despite her evidence that she was licked in those areas in a slobbering fashion, despite the evidence that saliva is a rich source of DNA, despite the evidence that oral sex is a circumstance in which DNA could be transferred from the mouth to the vulva, and despite the fact that the complainant had remained in her robe (without underwear) and had not washed since the incident. Counsel also submitted that the question and answer extracted in full above from Ms Haycraft’s evidence[7] showed that, if the complainant’s account were true, it would be very likely that the applicant’s DNA would have been detected in the swab of the vulva.
[7]See paragraph [54], above.
The respondent submitted that the failure to detect the applicant’s DNA in the swabs taken from the complainant’s vulva and perineum was explained by Ms Haycraft’s evidence. Properly understood, her answer to the question extracted above means only that, if there were more saliva present, that would in turn make it more likely that foreign DNA could be detected – not that it was “very likely” or “highly likely” to be detected. In substance, her evidence was that, while DNA could be transferred from the mouth to the vulva during oral sex, it can be difficult to detect foreign DNA in the vulva “because the DNA … from the person whose vulva [it] is … can swamp the DNA that’s present from other sources”.
Jury deliberations
Counsel for the applicant added that it should be inferred from the jury’s earlier question during deliberations that they were concerned about the absence of DNA evidence supporting the complainant’s account on Charges 3 and 5. He also submitted that the fact that the jury were “hung” at one point, together with the period of deliberation (five days) for such a comparatively short trial (six days), should add to the disquiet about the safety of the verdicts on Charges 3 and 5.
Conclusions
In our view, none of the matters on which reliance is placed by the applicant, either alone or in combination, is such as to mean that it was not open on the whole of the evidence to a properly instructed jury to be satisfied beyond reasonable doubt of the applicant’s guilt on Charges 3 and 5.[8] Indeed, having examined the record of the trial, while the jury might have entertained a doubt about the applicant’s guilt, we are not persuaded that they must have entertained such a doubt on either Charge 3 or Charge 5 or, for that matter, on any of the five charges.[9]
[8]As to the test a court of criminal appeal is to apply in considering a complaint that a verdict is unreasonable or cannot be supported having regard to the evidence, see, M v The Queen (1994) 181 CLR 487 at 492-495.
[9]Libke v The Queen (2007) 230 CLR 559 at 596-597[113].
As to the first category of alleged weaknesses, while they are all matters proper for argument before a jury, none of them, either alone or in combination, is such as to compel a doubt about the complainant’s account of the circumstances supporting Charges 3 and 5. Each of the criticisms of the complainant’s evidence is capable of explanation in the manner raised by the respondent. For example, it was open to the jury to reject the view that the complainant told Dr Dyer of digital penetration. Further, it was open to the jury to accept that the complainant’s credit was not damaged, to the point of needing to reject her account of the essential aspects of the Crown case, because she told Dr Dyer that both nipples were sucked, when she was not sure whether it was one or both; because Constable Higgs said she told him she kissed SD on the lips, when she asserted she did not do so; and/or because she believed the applicant ejaculated on her back, when the DNA evidence did not support that belief.
Similarly, as to the second category of alleged weakness, it was open to accept the complainant’s explanations as to why she did not specifically allege lingual-vaginal penetration to the complaint witnesses. We should have thought that many in the community would not realize that lingual-vaginal penetration amounts to sexual penetration for the purposes of rape. Further, it is understandable that the complainant did not want to go into detail with her boyfriend, particularly given her concern that it would anger him, which subsequent events showed was a legitimate concern.
As for the third category of alleged weakness, it was open to accept Ms Haycraft’s evidence as to why the applicant’s DNA might not be detected in samples taken from the complainant’s vulva and perineum. There was no other expert evidence adduced or led which contradicted Ms Haycraft’s explanation. Nor was any such evidence sought to be led on the application in this Court. Things might have been different if the DNA profile had contained a mixture of at least two sources excluding the applicant. But, since only a single-source profile was detected and an explanation for the absence of the applicant’s DNA was proffered by an expert whose expertise was not challenged, and whose explanation was not contradicted by other expert evidence, it was open to the jury to act on that evidence.
We should add that there was no evidence that the top of the complainant’s pubic area was swabbed and subjected to DNA analysis. Thus, there was no criticism of the failure to find DNA evidence supportive of the allegation of indecent assault in Charge 5. As we have said, counsel’s focus was on Charge 3, which concerned the rape conviction.
As to the jury’s deliberations, while it is true that five days of deliberations is a relatively long period for such a short trial involving rather confined issues, there is nothing in that period or the questions the jury asked that suggests that something has gone amiss in the jury’s thinking. The fact that the guilty verdicts were reached by a majority is consistent with the view that the jury was said to be “hung” before the direction allowing majority verdicts was given. Further, while there was an earlier question about what might happen if the jury found the applicant guilty on three charges but could not agree on two, it would be speculation to say which of the two charges were of concern. Even if it could be inferred that the question concerned Charges 3 and 5 because of the absence of DNA supporting those particular allegations, that fact could not, in the circumstances of this case, affect the verdicts. Juries are entitled to muse and ask questions about various possibilities without such thoughts as those questions might be said to reveal giving rise to a concern about the safety of the verdicts subsequently returned.
Counsel for the respondent also submitted that the Court should take additional comfort from the fact that the complainant’s account overall was supported by other aspects of the evidence. These included the evidence of saliva and profiles consistent with the applicant’s DNA being found on other parts of the complainant’s body where the applicant was alleged to have kissed or licked her; her behaviour in immediately reporting the matter to KR, WJ, SD and police; her observed distress immediately after the alleged events; and the coherent nature of her account. We accept that submission in so far as it goes. But it does not address the more pointed question about whether the jury could be satisfied beyond reasonable doubt that there was lingual-vaginal penetration for the purposes of rape (Charge 3) and the licking of the pubic area for the purposes of the third indecent assault (Charge 5). As we have already indicated, however, we consider that it was open on the evidence to be satisfied beyond reasonable doubt of those two charges.
Finally, counsel for the applicant conceded that, since there was no attack on the verdicts on Charges 1, 2 and 4, that could be taken as an acceptance by the applicant that it was open to the jury to be satisfied beyond reasonable doubt of the central aspects of the complainant’s account in support of those charges, which in turn is a factor relevant to whether the verdicts on Charges 3 and 5 are unsafe. Counsel for the respondent agreed. While that strikes us as a correct approach, no authority was cited in support of that proposition. It is perhaps similar to the respondent’s point that the Court should take additional comfort from the fact that the complainant’s account overall was supported by other aspects of the evidence. Again, however, it is not a matter we need to determine, since, as we have said, we are of the view that, on the whole of the evidence led in support of the verdicts under challenge, it was open to be satisfied beyond reasonable doubt about the applicant’s guilt.
It follows that Ground 1 is not made out.
----
2
0